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In re Martinez

California Court of Appeal, Fourth District, First Division

January 30, 2014

IN RE Joe MARTINEZ on Habeas Corpus.

[REVIEW GRANTED BY CAL. SUPREME COURT]

[As modified February 7, 2014.]

Original proceeding on a petition for writ of habeas corpus. Relief denied. (Super. Ct. No. FSB801884)

Page 611

[Copyrighted Material Omitted]

Page 612

COUNSEL

[167 Cal.Rptr.3d 461] William D. Farber, San Rafael, under appointment by the Court of Appeal, for Petitioner Joe Martinez.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Warren Williams, Deputy Attorneys General, for Respondent The People.

OPINION

HUFFMAN, Acting P.J.

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In 2008, a jury convicted Joe Martinez for, among other things, inflicting corporal injury on his wife (Pen.Code, [1] § 273.5, subd. (a)) and spousal rape (§ 262, subd. (a)(1)). The jury also found that Martinez had two prior strike convictions. The trial court sentenced Martinez to prison as a third strike offender to 25 years to life for the section 273.5, subdivision (a) offense and an additional consecutive term of 25 years to life for the section 262, subdivision (a)(1) offense.

On November 6, 2012, California voters approved Proposition 36, the Three Strikes Reform Act of 2012 (the Act), which amended sections 667 and 1170.12 and added section 1170.126. (See People v. Yearwood (2013) 213 Cal.App.4th 161, 167, 151 Cal.Rptr.3d 901 ( Yearwood ).) Martinez then filed a petition to recall his sentence and for resentencing under section 1170.126, focusing on his convictions under sections 273.5 (count 1) and 262, subdivision (a)(1) (count 5).

The superior court denied the petition, finding that Martinez did not satisfy the criteria of section 1170.126, subdivision (e). The court noted that Martinez's current commitment offenses are " serious and violent felonies making [Martinez] ineligible for re-sentencing under" section 1170.126.

Martinez appeals the order denying his petition, contending that he was not statutorily ineligible for resentencing pursuant to section 1170.126 as to his conviction under section 273.5, subdivision (a). The People disagree, arguing: (1) the court's denial of the petition was not appealable, and (2) count 5 is a serious and violent felony that rendered Martinez ineligible to be resentenced.

As we explain in more detail below, we reach the merits of this matter by treating Martinez's appeal as a petition for writ for habeas corpus. We

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conclude that the superior court did not err in denying Martinez's petition for resentencing because Martinez's sentence was imposed, in part, for spousal rape (§ 262, subd. (a)), which is a serious felony under section 1192.7, subdivision (c) and a violent felony under section 667.5, subdivision (c). Accordingly, we agree with the ...


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