Filed 7/29/14 P. v. Martinez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D065335

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD139920)

EDUARDO MARTINEZ,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Warren

Williams, Deputy Attorneys General, for Plaintiff and Respondent.

         Eduardo Martinez appeals from an order of the superior court in which the court

denied his petition for resentencing under the Three Strikes Reform Act of 2012,
specifically Penal Code1 section 1170.126. The trial court found that Martinez was

ineligible for resentencing because he had previously suffered a conviction punishable by

life imprisonment or death. (§ 1170.126, subd. (e)(3).)

         Martinez contends he was denied due process because the court did not apply the

standard of proof beyond a reasonable doubt in finding the truth of the factor which

rendered him ineligible for resentencing. He also contends his 1976 robbery conviction,

which included the infliction of great bodily injury and the use of a firearm to shoot and

injure the victim, does not qualify as an offense punishable under present law by life

imprisonment.

         The People respond both by disagreeing with Martinez's contentions but also

contend the case must be dismissed because the order in question is not an appealable

order.

         We will reject Martinez's contentions regarding the denial of his petition for

resentencing. With regard to whether the order is appealable, we will note the issue is

presently pending before our Supreme Court. Accordingly we will assume the order is

appealable pending direction from the high court and will address the merits of the

appeal.

                              PROCEDURAL BACKGROUND

         In 1999, Martinez was convicted of two felony counts of commercial burglary.

His strike priors (§ 667, subds. (b)-(i)) were found true, as was the alleged prison prior



1        All further statutory references are to the Penal Code unless otherwise specified.
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(§ 667.5, subd. (b)). Martinez was sentenced to an indeterminate term of 26 years to life

pursuant to the three strikes law.

       Following the passage of the 2012 measure reforming the three strikes law,

Martinez petitioned the trial court for resentencing. The trial court issued an order to

show cause and received briefing on the question of whether Martinez was eligible for

resentencing.

       After the receipt of briefing and exhibits, the court found Martinez was not eligible

for resentencing because of his 1976 prior conviction which the court found under current

law, would be punishable by life imprisonment. The parties did not request an

evidentiary hearing, thus the decision was based solely on the moving and responding

papers.

       Martinez filed a timely notice of appeal.

                                      DISCUSSION

       Martinez makes essentially a two-pronged attack on the trial court's order. First he

argues the trial court applied the preponderance of evidence standard of proof in

determining the truth of the factor which rendered him ineligible for resentence. The

second attack is based on the claim that his 20-year-to-life sentence imposed in 1976, just

prior to the enactment of the determinate sentencing law, is not the type of sentence

referred to in the reform act because the statute on which it was based, section 213, was

repealed in 1977. (Stats. 1977, ch. 165, § 5, p. 642.) He argues the offense today would

not be punishable by a life sentence. We disagree with both assertions. However we will



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first discuss the issue of whether the order can be appealed and then address Martinez's

contentions in order.

                           A. Should the Appeal Be Dismissed?

       The People contend this appeal must be dismissed because Martinez was not

eligible for resentencing, therefore the order denying his petition for resentencing is not

appealable. (People v. Totari (2002) 28 Cal.4th 876, 883, 886-887.) The People

concede, however that the question of whether an order denying a petition to recall the

sentence under the reform act is now pending before the Supreme Court. (Teal v.

Superior Court (2013) 217 Cal.App.4th 308, review granted July 31, 2013, S211708;

People v. Hurtado (2013) 216 Cal.App.4th 941, review granted July 31, 2013, S212017.)

       We recognize there is a controversy on this issue and that the high court will

ultimately resolve it. However, since we are satisfied that Martinez is not eligible for

resentencing, we believe the better use of resources is to assume the order is appealable

and dispose of the case on the merits pending direction from the Supreme Court. Thus,

we will turn next to the merits of Martinez's claims.

                                  B. The Burden of Proof

       Both parties dispute the appropriate standard which should be used by a trial court

in determining eligibility for resentencing. Interestingly, the trial court's brief remarks

when it denied the petition do not mention the standard of proof the court used. One

approach to the review of this issue would be to assume the trial court correctly applied

the law. (Evid. Code, § 664.) However, since existing case law seems to have resolved

this question we will proceed to analyze the competing claims.

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       Martinez's due process arguments in support of his claim that the prosecutor was

required to prove ineligibility beyond a reasonable doubt are based in large part on

Apprendi v. New Jersey (2000) 530 U.S. 466. There the court held that in a criminal

prosecution the defendant may not be sentenced to a term beyond the statutory maximum

for an offense unless the facts justifying the increase have been pled and proved beyond a

reasonable doubt. However, Martinez's reliance on Apprendi and the cases which have

followed it are inapposite to the issue before us. Martinez is now serving a sentence for

convictions in 1999, in which case the prosecution pleaded and proved the facts which

justified the third strike indeterminate sentence imposed at that time. Martinez is not now

being prosecuted, and the People are not now seeking an enhanced sentence. Rather,

Martinez is seeking to bring himself within the scope of the reform act so that he can

reduce his current sentence.

       This court rejected a similar argument in People v. White (2014) 223 Cal.App.4th

512, 526-527. In that case we noted the reform act deals separately with future

prosecutions in which the act requires the prosecution to plead and prove the factors

which would authorize an indeterminate third strike sentence. The act requires such

factors to be proved beyond a reasonable doubt. The act, however, does not set a burden

of proof for the determination of criminal history factors that would render an inmate

ineligible for resentencing. (People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th

1279, 1293.)




                                             5
       Where a statute does not set a burden of proof, then such burden is by a

preponderance of the evidence. (Evid. Code, § 115; People v. Osuna (2014) 225

Cal.App.4th 1020, 1040.)

       Of course, as we have pointed out previously, the trial court did not discuss the

burden of proof and the parties did not object at the hearing. In any event, we are

satisfied Martinez was not denied due process.

                                 C. The 1976 Conviction

       In 1976 Martinez was convicted of robbery with the infliction of great bodily

injury and the personal use of a firearm. His change of plea form recited that the crime

was committed by: "Taking money from a person by use of a gun. The defendant also

shot and injured the person he took the money from." Martinez was sentenced to an

indeterminate term of 20 years to life. Martinez argues that since the 1976 sentence was

imposed under section 213, which was repealed in 1977 with the enactment of the

determinate sentencing law, the trial court erred in considering that sentence to be life

imprisonment as defined in the reform act. He argues that if the court treated the

sentence under then section 213 to qualify, he is denied equal protection because the

same crime committed in 1977, would have received a determinate sentence. As

Martinez notes, prior to the 1977 amendment to the sentencing law, many crimes were

punishable with a life sentence. Robbery prior to that time was a five-year-to-life

offense. Once the new sentencing system was created, robbery became a determinate

sentence with a maximum of five years. Thus, Martinez argues the 20-year-to-life

sentence in 1976 should not be treated as disqualifying.

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       Perhaps anticipating this issue, the trial court approached this issue by determining

if the same offense, as committed by Martinez, had happened under present law, it would

still be a life sentence offense.

       The court reasoned that while robbery is a determinate term offense, as is the term

for the great bodily injury enhancement (§ 12022.7), the factor that makes the offense a

life imprisonment offense under current law is that the personal discharge of a firearm

causing injury is punishable by a term of 25 years to life. (§ 12022.53, subd. (d).) Thus,

under either sentencing system prior to and subsequent to the determinate sentencing law

of 1977, the offense as Martinez described it under oath in his change of plea form, was

punishable by life imprisonment. Therefore, the trial court properly concluded Martinez

was not eligible for resentencing under section 1170.126.

                                       DISPOSITION

       The order denying resentencing under section 1170.126 is affirmed.




                                                                  HUFFMAN, Acting P. J.

WE CONCUR:



                         NARES, J.


                           IRION, J.




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