Filed 9/9/15 P. v. Martinez CA2/1

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                    SECOND APPELLATE DISTRICT
                                                  DIVISION ONE


THE PEOPLE,                                                         B260393

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA101245)
         v.                                                         ORDER MODIFYING OPINION
                                                                    [NO CHANGE IN JUDGMENT]
RICHARD MARTINEZ,

         Defendant and Appellant.



THE COURT:
         The opinion issued on August 25, 2015, is hereby modified as follows:
    On page 2, the third sentence in the first paragraph under the heading
“BACKGROUND” is replaced with the following sentence:

         The court ultimately sentenced defendant to consecutive third-strike terms of 25
         years to life, plus 15 years on each count for three section 667, subdivision (a)(1)
         prior serious felony enhancements.

         There is no change in the judgment.




         ROTHSCHILD, P. J.                               CHANEY, J.                            LUI, J.
Filed 8/25/15 P. v. Martinez CA2/1 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B260393

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. BA101245)
         v.

RICHARD MARTINEZ,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. William
C. Ryan, Judge. Affirmed.
         Jill Ishida, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Noah P. Hill and Viet H.
Nguyen, Deputy Attorney General, for Plaintiff and Respondent.
                                 _________________________________
       Defendant Richard Martinez appeals from an order denying his petition for
Proposition 36 resentencing pursuant to Penal Code section 1170.1261 with respect to one
of his two 1995 commitment offenses for which he received concurrent third strike terms.
Although defendant recognizes he is ineligible for resentencing with respect to his first
degree burglary conviction because it was a “serious” offense, he contends the trial court
erred by concluding he was ineligible with respect to his conviction for dissuading a
witness, which was not categorized as a “serious” or “violent” felony at the time of
defendant’s conviction, although it was added to the list of “serious” felonies in 2000.
(§ 1192.7, subd. (c)(37).) In light of the California Supreme Court’s recent decision in
People v. Johnson (2015) 61 Cal.4th 674 (Johnson), we necessarily affirm.
                                     BACKGROUND
       Defendant was convicted of first degree burglary and dissuading a witness in
violation of section 136.1, subd. (c)(1). Defendant waived a jury trial on five strike
allegations (four residential burglaries and a robbery), and the court found these
allegations true. The court sentenced defendant to concurrent third-strike terms of 25
years to life, plus 15 years on each count for three section 667, subdivision (a)(1) prior
serious felony enhancements.
       In 2014 defendant filed a petition for Proposition 36 resentencing with respect to
his dissuading conviction. The trial court denied the petition on the ground defendant’s
first degree burglary conviction rendered him ineligible for resentencing.
                                       DISCUSSION
       Proposition 36, also known as the Three Strikes Reform Act of 2012, was
approved by the voters on November 6, 2012, and went into effect the next day. It
amended sections 667 and 1170.12 so that an indeterminate term of 25 years to life in
prison is applied only where the “third strike” offense is a serious or violent felony or the



       1   Undesignated statutory references pertain to the Penal Code.


                                              2
prosecution pleads and proves an enumerated triggering factor. (§§ 667, subd. (e)(2)(A),
(C), 1170.12, subd. (c)(2)(A), (C).)
       Proposition 36 also created section 1170.126, which provides a procedure for
resentencing “persons presently serving an indeterminate term of imprisonment” under
the Three Strikes law “whose sentence under this act would not have been an
indeterminate life sentence.” (§ 1170.126, subd. (a).) Such a person may file a petition to
recall his or her sentence and be sentenced as a second strike offender. (§ 1170.126,
subd. (b).) An inmate is eligible for such resentencing if his or her commitment offense is
not a serious or violent felony and none of the factors that would trigger a third strike
sentence under the Three Strikes law as reformed by Proposition 36 apply. (§ 1170.126,
subd. (e).) Resentencing of qualified inmates may nonetheless be refused if the trial
court, “in its discretion, determines that resentencing the petitioner would pose an
unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).)
       On appeal defendant contends that the status of a commitment offense as serious
or violent must be assessed as of the time that offense was committed and that an inmate
is eligible for Proposition 36 resentencing with respect to a commitment offense that is
neither serious or violent, even though he or she has another commitment offense that is a
serious or violent offense.
       In Johnson, supra, 61 Cal.4th at page 680, the Supreme Court resolved both of
these issues: “[W]e hold that when a court resentences a third-strike defendant the
classification of an offense as serious or violent is based on the law as of November 7,
2012, the effective date of Proposition 36, and that the presence of a current offense that
is serious or violent does not disqualify an inmate from resentencing with respect to a
current offense that is neither serious nor violent.”
       Accordingly, because both of defendant’s commitment offenses constituted serious
felonies on the effective date of Proposition 36 (§ 1192.7, subd. (c)(18), (37)), he was
ineligible for resentencing under section 1170.126. The trial court did not err by denying
his petition.


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                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.


                                           LUI, J.
We concur:


      ROTHSCHILD, P. J.


      CHANEY, J.




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