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People v. Superior Court (Jose Angel Martinez)

California Court of Appeals, Fifth District

April 24, 2014

THE PEOPLE, Petitioner,
v.
THE SUPERIOR COURT OF TULARE COUNTY, Respondent JOSE ANGEL MARTINEZ, Real Party in Interest.

APPEAL from a judgment of the Superior Court of Tulare County No. VCF035601-94, Joseph A. Kalashian, Judge.

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COUNSEL

Tim Ward, District Attorney, Anthony Fultz, Assistant District Attorney, Jill Icenhower, Douglas Rodgers, and Samantha Arnerich, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Michael B. Sheltzer, Public Defender, Lisa Bertolino, Assistant Public Defender, and Angela Marie Krueger, Deputy Public Defender, for Real Party in Interest.

OPINION

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DETJEN, J.

INTRODUCTION

“On November 6, 2012, the voters approved Proposition 36, the Three Strikes Reform Act of 2012, which amended [Penal Code] sections 667 and 1170.12 and added [Penal Code] section 1170.126 (hereafter the Act).[1] The Act changes the requirements for sentencing a third strike offender to an indeterminate term of 25 years to life imprisonment. Under the original version of the three strikes law a recidivist with two or more prior strikes who is convicted of any new felony is subject to an indeterminate life sentence. The Act diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or the prosecution has pled and proved an enumerated disqualifying factor. In all other cases, the recidivist will be sentenced as a second strike offender. (§§ 667, 1170.12.) The Act also created a postconviction release proceeding whereby a prisoner who is serving an indeterminate life sentence imposed pursuant to the three strikes law for a crime that is not a serious or violent felony and who is not disqualified, may have his or her sentence recalled and be sentenced as a second strike offender unless the court determines that resentencing would pose an unreasonable risk of danger to public safety. (§ 1170.126.)” (People v. Yearwood (2013) 213 Cal.App.4th 161, 167-168 [151 Cal.Rptr.3d 901].)

Shortly after the Three Strikes Reform Act of 2012 (hereafter the Act or Proposition 36) went into effect, real party in interest Jose Angel Martinez, an inmate serving a 25-years-to-life term following conviction of felonies that were not violent (as defined by § 667.5, subd. (c)) or serious (as defined by § 1192.7, subd. (c)), filed a petition for recall of sentence, seeking resentencing under the Act. The trial court determined Martinez qualified (was eligible) for resentencing and set the matter for further hearing on the issue of whether resentencing Martinez would pose an unreasonable risk of danger to public safety. The People now seek review of the trial court’s eligibility determination.

In this opinion, we hold that an inmate serving a 25-years-to-life term under the three strikes law may be found to have been “armed with a firearm” in the commission of his or her current offense, so as to be disqualified from

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resentencing under the Act, even if he or she did not carry the firearm on his or her person. We further hold the People are entitled to writ review of the trial court’s contrary conclusion. Accordingly, we grant the People’s petition for a writ of prohibition and/or mandate.

FACTS AND PROCEDURAL HISTORY

On December 2, 1994, a parole agent and sheriff’s deputy went to Martinez’s residence to perform a parole search of the premises. Upon arrival, they found Martinez in the kitchen, displaying symptoms of being under the influence of a controlled substance. Drug paraphernalia was found on Martinez’s person, a bindle of heroin was found lying on a table in front of Martinez, a sawed-off shotgun and marijuana were found either in the same room as Martinez or in one of the bedrooms, and another sawed-off shotgun and a hunting rifle were found in a closet of the residence.[2]

In June 1997, a jury convicted Martinez of possession of two deadly weapons, both sawed-off shotguns (Pen. Code, former § 12020, subd. (a), now see Pen. Code, § 33215; counts 1-2); possession of heroin (Health & Saf. Code, § 11350, subd. (a); count 3); possession of a controlled substance while armed with a loaded, operable firearm (id., § 11370.1, subd. (a); count 4); possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1), now see Pen. Code, § 29800, subd. (a); count 5); and three misdemeanors. Martinez was found to have suffered either two or three prior “strike” convictions (§ 667, subds. (d) & (e)) and to have served three prior prison terms (§ 667.5, subd. (b)).[3] On July 28, 1997, he was sentenced to 25 years to life plus three years in prison.

On or about December 20, 2012, Martinez petitioned the trial court for a recall of sentence and a new sentencing hearing pursuant to section 1170.126. Martinez alleged that he qualified to have his sentence recalled because he met all three eligibility criteria set out in subdivision (e) of section 1170.126. The People opposed the petition on the ground Martinez did not qualify because, in connection with his current ...


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