Opinion
B325060
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MARCOS MARTINEZ, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. A760948, Laura F. Priver, Judge.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
CHANEY, J.
In November 2020, we dismissed an appeal filed by appellant Anthony Marcos Martinez from the superior court's denial of a resentencing petition under Penal Code section 1172.6. In June 2022, Martinez filed a second petition for resentencing under section 1172.6, and the superior court stayed proceedings on this second petition on the grounds that our Supreme Court had granted review of our November 2020 order.
Undesignated statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered as 1172.6 without substantive change. (People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) For clarity, we use the current statutory numbering.
In this appeal, Martinez contends the superior court erred in staying proceedings because he did not seek, and our Supreme Court did not grant, review of our dismissal of his prior appeal. The People agree and so do we. We therefore vacate the superior court's stay order and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, Martinez was charged with murdering Jesus Uribe by stabbing him with a knife. He was convicted and sentenced to 16 years to life.
In April 2020, Martinez filed a petition for resentencing pursuant to section 1172.6. In May 2020, the superior court denied Martinez's petition because he "was the actual killer" (original italics). The superior court elaborated that, at his trial, Martinez had admitted to stabbing the victim but claimed he did so because he "believed the victim was arming himself," and "he was frightened and only wanted to slow the victim down." After Martinez appealed the denial of his petition, his appointed counsel filed a brief raising no issues and invoking People v. Serrano (2012) 211 Cal.App.4th 496. In September 2020, we directed counsel to send the record and a copy of the brief to Martinez, and notified him of his right to respond within 30 days. We received no response and dismissed the appeal in November 2020, stating: "Accordingly, the appeal filed May 28, 2020 is dismissed. (People v. Cole (2020) 52 Cal.App.5th 1023, 10391040, review granted Oct.14, 2020, S264278. (Cal.Rules of Court, rule 8.1115(e)(1).); People v. Serrano (2012) 211 Cal.App.4th 496, 503-504.)."
In June 2022, Martinez filed a second section 1172.6 petition, claiming eligibility for relief and requesting the appointment of counsel. In July 2022, without appointing counsel, the court noted that Martinez's first petition was denied "on the basis that the petitioner was the actual killer and, therefore, not entitled to relief"; that Martinez had appealed this denial; that we had dismissed the appeal; and that Martinez had "sought review of that [dismissal] order in the California Supreme Court," referencing "Case # S264278" (i.e., the case number for the grant of review of People v. Cole, which was cited in our November 2020 dismissal order). The superior court therefore ordered Martinez's petition "held in abeyance pending the ruling by the California Supreme Court." Martinez timely appealed.
DISCUSSION
Martinez contends the superior court erred in staying proceedings on his second petition "because it erroneously believed his case was pending review before the California Supreme court in case number S264278." The People agree, conceding that "[c]ontrary to the trial court's July 11, 2022 order, appellant did not file a petition for review, nor did the California Supreme Court grant review, following the dismissal of appellant's appeal from the denial of his first section 1172.6 petition" and therefore "the trial court erred in holding appellant's second section 1172.6 petition in abeyance, and the case should be remanded for further proceedings ...."
We agree.
DISPOSITION
The superior court's order is vacated. On remand, the court is to consider Martinez's petition and proceed according to the steps outlined in section 1172.6.
We concur: ROTHSCHILD, P. J., BENDIX, J.