Opinion
E080324
11-15-2023
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO ANTONIO MARTINEZ, Defendant and Appellant.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum, Deputy Attorney Generals, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVA1400103. Katrina West, Judge. Reversed in part; affirmed in part.
Robert L.S. Angres, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Kathryn Kirschbaum, Deputy Attorney Generals, for Plaintiff and Respondent.
OPINION
MILLER J.
Defendant and appellant Guillermo Antonio Martinez appeals a denial of his petition for resentencing under Penal Code section 1172.6. The People concede. Accordingly, we reverse the order and remand this case for resentencing. (People v. Buycks (2018) 5 Cal.5th 857, 893 ["full resentencing rule" authorizes trial court to modify every aspect of sentence upon resentencing].)
All further statutory references are to the Penal Code unless otherwise specified.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On July 6, 2015, a jury convicted defendant of premeditated and deliberate attempted murder under sections 187 subdivision (a), and 664 (count 1), and two counts of robbery under section 211 (counts 1 &4). The jury also found true the firearm enhancements under section 12022.53, subdivision (b), (c), and (d).
At the sentencing hearing on August 3, 2015, the trial court sentenced defendant to a determinate term of 10 years followed by an indeterminate term with no parole eligibility for 40 years, as follows:
1. Count 1 (attempted murder under sections 664 and 187)-indeterminate term of 15 years to life for attempted murder, plus an additional 10 years for the firearmuse enhancement under section 12022.53, subdivision (b), stayed under section 12022.53, subdivision (f), plus an additional 20 years for the firearm-use enhancement under section 12022.53, subdivision (c), stayed under section 12022.53, subdivision (f), plus an indeterminate term of 25 years to life, consecutive, for the enhancement of discharge of a firearm causing great bodily injury under section 12022.53, subdivision (d);
2. Count 2 (robbery under section 211)-one-third the middle term for an additional one year, consecutive, plus an additional 10 years for the firearm-use enhancement under section 12022.53, subdivision (b), stayed under section 12022.53, subdivision (f), plus one-third of the 20 years for six years eight months, consecutive, for the enhancement of discharge of a firearm causing great bodily injury under section 12022.53, subdivision (b);
3. Count 4 (robbery under section 211)-one-third the middle term for an additional 20 years, plus one-third the middle term of four years for one year four months for the firearm-use enhancement under section 12022.5, subdivision (a).
After defendant appealed, this court affirmed the judgment in People v. Guillermo Antonio Martinez (Oct. 17, 2017, E066363) [nonpub. opn.]. Thereafter, defendant's sentence was modified on three separate occasions.
Defendant's current sentence is as follows: an indeterminate term of life with no parole eligibility for 40 years (no parole eligibility for 15 years on count 1, plus no parole eligibility for 25 years for the gun enhancement attached to that count); and a determinate term of five years (the low term of two years on count 2, concurrent; the low term of two years on count 4, consecutive to count 1, plus the low term of three years on the gun enhancement attached to count 4, consecutive).
On August 2, 2022, defendant filed a petition for resentencing under section 1172.6. On December 2, 2022, the trial court denied defendant's petition, finding that defendant had failed to make a prima facie case for relief.
On December 7, 2022, defendant filed a timely notice of appeal.
The facts are taken from this court's opinion in People v. Martinez, supra, E066363.)
B. FACTUAL HISTORY
"[O]n January 12, 2014, at approximately 1:55 a.m., John Doe was at the Fontana Metrolink station. Doe was 16 years old. Doe was with his father (Father) and brother (Brother). Doe and Brother had accompanied Father to work in Los Angeles, and returned via the Metrolink to Fontana. When they arrived, they discovered their car battery had died due to the lights being left on. Doe, Brother, and Father waited outside their car, at the Metrolink station, for Father's friend to arrive.
"Father went into the station to use the restroom. Defendant approached Doe and asked Doe to tell him the time. Doe's telephone battery had died, so he looked to Brother and asked for the time. When Doe looked back toward defendant, defendant was pointing a gun at Doe's chest. Defendant said,' "It's time to give me all your stuff."' Doe said,' "Hey, man, your gun is fake, man. Just get out of here." '
"Defendant responded,' "Okay, you think it's fake."' Defendant shot the gun toward Father, who was returning to the car. Defendant then shot the gun toward Brother, and then shot the gun toward the ground. Defendant aimed the gun at Doe's chest and pulled the trigger, but the gun jammed. Defendant pulled the trigger a second time while pointing the gun at Doe's chest, but the gun was still jammed.
"Defendant put the gun in his pocket and ran away. Doe chased after defendant. After approximately 15 feet, Doe caught defendant. Doe placed defendant in a chokehold and brought him to the ground; however, defendant ended up on top of Doe. Defendant removed the gun from his pocket and pointed it at Doe's chest. Brother pulled defendant by his legs, to try to remove defendant from Doe. Defendant shot Doe in the chest.
"Doe struggled to get defendant off of him. Defendant pointed the gun at Doe's head. Father grabbed defendant's hand and tried to take the gun away from defendant. Defendant shot Doe in the neck. Doe stopped struggling. Defendant stood up and said he 'had something for [them]. That he lived right across the street and that he was going to come back either with another gun or something to 'get [them] all back for what [they] had done to him.' Defendant left.
"Morris saw Doe lying on the ground. Morris called 911. An ambulance arrived and took Doe to the hospital. Doe stayed in the hospital for approximately four days. A bullet remains lodged in Doe's neck.
"B. CLOSING ARGUMENT
"When the prosecutor made his closing argument regarding attempted murder, the prosecutor cited as evidence (1) defendant aiming the gun at Doe's chest, pulling the trigger, and the gun jamming; (2) defendant shooting Doe's chest during the struggle; (3) defendant pointing the gun at Doe's head during the struggle; and (4) defendant shooting Doe's neck.
"In regard to premeditation and deliberation, the prosecutor argued the same foregoing four acts supported the finding. The prosecutor argued, 'The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. [¶] What that means is it doesn't need to be minutes, hours, thinking about should I kill him, should I not? You run a yellow light. Your actions are quick. You think about it. You make a decision quick. We asked you to use your common sense when you became jurors in this case. That's where your common sense will come into play in all these instructions, but here as well. Based on the facts that were presented to you, does it prove that the defendant deliberated, made a willful action, premeditated?
' "His actions speak for themselves. He points the gun at [Doe's] chest, tries to shoot him, gun doesn't go off. During the fight, he puts the gun [ sic ], takes it out, puts it on [Doe's] chest. After he shoots him, he moved it to [Doe's] head. This isn't a situation where the defendant is just waving the gun around taking potshots. He put the gun to [Doe's] chest and then his head, attempting to kill him. [¶] Also, with willful and deliberate [ sic ] and premeditation. Easiest one. Defendant acted with express malice if he unlawfully intended to kill. He put it to the chest, put it to the head, and he tried to kill [Doe]. And, again, but for [Father's] action, [Doe] would likely be dead.'
"C. JURY INSTRUCTIONS
"The trial court instructed the jury on the union of act and intent. The trial court explained," 'For you to find a person guilty of these crimes or to find the allegations true, that person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state.' (CALCRIM No. 252.)
"The trial court also instructed the jury on premeditation and deliberation. The trial court explained, 'The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant premeditated if he decided to kill before acting. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and its consequences is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time.' (CALCRIM No. 601.)
"The trial court also instructed the jury on attempted voluntary manslaughter. (CALCRIM No. 603.) The trial court informed the jury that the verdict must be unanimous. (CALCRIM No. 3550.) However, the court did not instruct the jury on unanimity related to a particular act when the prosecutor has presented evidence of multiple acts. (CALCRIM No. 3500.)
"D. CONVICTIONS
"The jury found defendant guilty of the attempted murder of Doe, robbery of Morris, and robbery of Laflin." (People v. Martinez, supra, E066363, at pp. *2-*8.)
DISCUSSION
A. THE SENTENCE FOR COUNT 1 IS UNAUTHORIZED
Defendant contends, and the People agree, that defendant's sentence on count 1, attempted premeditated murder of Doe, is unauthorized.
Under section 664, subdivision (a), the penalty for attempted premeditated murder is life imprisonment, with no specified minimum sentence. (§ 664, subd. (a).) Section 3046, subdivision (a)(1), provides that a person sentenced to life imprisonment for a crime that has no specified minimum sentence may not be paroled until a minimum of seven years. In People v. Felix (2000) 22 Cal.4th 651, the California Supreme Court stated: "Section 3046 . . . provides, as relevant, 'No prisoner imprisoned under a life sentence may be paroled until he or she has served at least seven calendar years or has served a term as established pursuant to any other section of law that establishes a minimum period of confinement under a life sentence before eligibility for parole, whichever is greater.'" (Id. at p. 659.)
In this case, on defendant's conviction for attempted premeditated murder, the court sentenced defendant to an indeterminate term with no parole eligibility for 15 years, plus a second indeterminate term with no parole eligibility for 25 years for the gun enhancement. However, a sentence of 15 years to life for attempted murder only applies if the intended victim is a peace officer, a firefighter, a custodial officer, or a custody assistant. (§ 664, subd. (e) &(f).)
Here, the victim of defendant's attempted murder conviction was Doe, a minor. There was no jury finding that the minor was a public servant as defined in section 664, subdivision (e). (People v. Martinez, supra, E066363 at pp. *3-*5.) Accordingly, based on sections 664, subdivision (a), and section 3046, subdivision (a)(1), the sentence imposed for count 1 should have been for an indeterminate life term with no parole eligibility for seven years.
Therefore, we agree with the parties that defendant's sentence for count 1 is unauthorized and remand the case to the trial court to correct the abstract of judgment to reflect an indeterminate life term with no parole eligibility for seven years.
B. DEFENDANT'S CUSTODY CREDITS
Defendant contends that he is entitled to an additional 1,534 days of custody credits for his confinement from August 4, 2015 (the day following his initial sentencing) to October 15, 2019 (the day of his most recent resentencing). The People agree with defendant.
In this case, at defendant's initial sentencing hearing on August 3, 2015, the court awarded defendant 567 days of actual credit plus 85 days of conduct credit. Thereafter, at the resentencing hearing on October 15, 2019, the trial court did award new sentencing credits to defendant.
Under section 2900.5, a defendant is entitled to credit for days spent in actual custody from the date of arrest until the date of sentencing. Moreover, when a defendant is resentenced, all actual time spent in custody must be credited against the modified sentence, and reflected in the amended abstract of judgment. (People v. Buckhalter (2001) 26 Cal.4th 20, 37, 41; People v. Sek (2022) 74 Cal.App.5th 657, 673 [the trial court commits reversible error when it does not update a defendant's credits for actual time served between the original sentencing hearing and the resentencing hearing].)
Therefore, we agree with both defendant and the People that defendant's actual credits should be updated to reflect an additional 1,534 days in custody from August 4, 2015, to October 15, 2019, and any additional days accrued by defendant pending this appeal and resentencing by the trial court on remand.
DISPOSITION
The trial court's order denying defendant's petition for resentencing under section 1172.6 is reversed. The case is remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: McKINSTER Acting P. J., CODRINGTON J.