P. v. Martin

Filed 1/19/21 P. v. Martin CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JEROME MARTIN,
Defendant and Appellant.
B299948
(Los Angeles County
Super. Ct. No. A982883)
APPEAL from an order of the Superior Court of Los
Angeles County, Michael E. Pastor, Judge. Affirmed.
Heather J. Manolakas, under appointment by the Court of
Appeal for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Gary A. Lieberman, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________

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Defendant Jerome Martin appeals the denial of his petition
for resentencing under Penal Code section 1170.95.1 As
defendant was not entitled to relief as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Offenses, Conviction, and Appeal2
Among multiple offenses, defendant and his codefendant
were convicted of two counts of special circumstances murder and
one count of attempted murder. The circumstances of
defendant’s crime are not completely set out in the limited record
before us. This much is known: “The two decedents and the
surviving victim of the attempted murder, Angela Merrit, were
bound at the wrists and placed in a closet. Gasoline was poured
under the closet door. Furniture was used to barricade the door
in the event the two decedents or Ms. Merrit would attempt to
escape. The gasoline was ignited and Ms. Merrit was able to
1 All undesignated statutory references are to the Penal
Code.
2 We take our discussion of the facts from the opinion
affirming defendant’s conviction. (People v. Martin (Apr. 25,
1995, B081736) [nonpub. opn.].) The Attorney General initially
sought judicial notice of our entire file in the prior appeal,
specifically attaching to the motion a copy of the prior opinion, a
single jury instruction, and the reporter’s transcript of the
verdict. We granted the motion, but indicated that much of the
court’s record had been destroyed. As the Attorney General’s
brief had referred to the entirety of the jury instructions, we
ordered the Attorney General to file a second request for judicial
notice including all portions of the prior record on which its brief
relied. The Attorney General did so, and we granted the request.
We rely on those documents in our discussion of the proceedings
in the trial court.

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break through the burning door. By the time the police and
firefighters arrived, the residence was fully engulfed by fire. The
two decedents were burned beyond recognition. Ms. Merrit
suffered serious burns over 75 percent of her body which required
her to undergo a lengthy hospitalization and six surgeries.”
(People v. Martin, supra, B081736, p. 6.)
Defendant was charged by amended information with two
counts of murder with special circumstances (§ 190.2, subd. (a)),
attempted murder (§§ 664/187), arson (§ 451), robbery (§ 211),
burglary (§ 459), and forcible rape (§ 261, subd. (a)(2)). Firearm
(§§ 12022, subd. (a)(1), 12022.5, subd. (a)) and great bodily injury
(§ 12022.7) enhancements were also alleged.
Defendant and his codefendant were tried simultaneously
before separate juries. As relevant to this appeal, defendant was
convicted of both counts of first-degree murder. Three felony-
murder special circumstances were found true – the murders
were committed in the course of arson, robbery and burglary. In
addition, a multiple murder special circumstance was found true.
The prosecution sought the death penalty. The jury hung on the
issue of penalty; a mistrial was declared, and a bench trial on
penalty was held. Defendant was sentenced to life imprisonment
without the possibility of parole. (People v. Martin, supra,
B081736, p. 3.) Defendant’s conviction was affirmed on appeal.
2. Defendant’s Section 1170.95 Petition
On April 11, 2019, defendant filed a form petition for
resentencing under section 1170.95. He requested counsel.
On May 13, 2019, the trial court denied the section 1170.95
petition, without appointing counsel, based on its review of the
petition, the amended information, the court’s minutes, the jury
instructions, the verdicts, and the appellate opinion. The court

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concluded that defendant was ineligible for relief because (1) the
jury was not instructed on natural and probable consequences;
and (2) the special circumstance felony-murder findings
established that the jury found defendant to be either the actual
killer or an aider and abettor who acted with the intent to kill.
Defendant filed a timely notice of appeal.
DISCUSSION
Senate Bill No. 1437 (SB 1437) invalidated the natural and
probable consequences doctrine as it relates to murder, and
narrowed liability for felony murder. (People v. Verdugo (2020)
44 Cal.App.5th 320, 323 (Verdugo) review granted Mar. 18, 2020.
S260493.) It also enacted section 1170.95, providing a means by
which a defendant convicted of murder under prior authority
could seek resentencing under the new version of the law.
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first determines whether
the petition is facially complete, and, if so, whether the petitioner
has made a prima facie showing that he falls within the
provisions of statutory eligibility. (People v. Torres (2020)
46 Cal.App.5th 1168, 1177 (Torres) review granted June 24, 2020,
S262011, Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) The
materials which the court can review at this stage include the
prior appellate opinion (People v. Lee (2020) 49 Cal.App.5th 254,
263, review granted July 15, 2020, S262459; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18,
2020, S260598) and the jury instructions given in the defendant’s
trial. (People v. Edwards (2020) 48 Cal.App.5th 666, 674, review
granted July 8, 2020, S262481.) If the court determines the
petitioner is ineligible for relief as a matter of law, the petition is

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denied at this first stage; if not, the court proceeds to the next
step. (Torres, at pp. 1177-1178.)
There is no statutory right to counsel at this first, prima
facie, stage of review.3 (Verdugo, supra, 44 Cal.App.5th at p. 323.
See also People v. York (2020) 54 Cal.App.5th 250, 257, review
granted Nov. 18, 2020, S264954; but see People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.)
At the first stage, the court’s inquiry is only whether the
defendant is ineligible for relief under section 1170.95 as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for
example, the court’s review of the record of conviction necessarily
establishes the defendant was convicted on a ground that
remains valid after SB 1437’s amendment of murder law, the
petition may be denied at this stage. (Id. at pp. 329-330.) But if
the court “cannot rule out the possibility that the jury relied on” a
theory invalidated by SB 1437, defendant has established a
prima facie case of eligibility. (People v. Offley (2020)
48 Cal.App.5th 588, 599.)
Here, the trial court concluded defendant’s conviction was
based on either actual killer or direct aider and abettor liability,
3 Defendant briefly argues that the denial of counsel violated
his constitutional rights. He does not rely on the Sixth
Amendment right to counsel, but suggests there was a violation
of his due process rights because the trial court failed to follow
the procedures guaranteed by section 1170.95 itself. As we
conclude the statute did not require the appointment of counsel,
we find no due process violation as defendant frames the issue.
(Cf. Dillon v. United States (2010) 560 U.S. 817, 828 [no Sixth
Amendment right to counsel at hearing for downward adjustment
of sentence].)

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rendering him ineligible for relief as a matter of law. We must
determine whether defendant’s murder liability instead could
have been based on the natural and probable consequences
doctrine or felony murder.
As to natural and probable consequences, our review of the
entirety of the jury instructions confirms defendant’s jury was not
instructed on that theory.
As to felony murder, SB 1437 narrowed liability such that a
defendant may no longer be convicted of felony murder unless he
was (1) the actual killer; (2) a direct aider and abettor, or (3) a
major participant in the crime who acted with reckless
indifference to human life, as defined in the felony murder special
circumstance. (§ 189, subd. (e).) Here, the jury found the three
felony-murder special circumstances true with respect to each
count of murder. More than that, defendant’s jury was not
instructed on the concept of a major participant acting with
reckless indifference. Defendant’s jury was instructed with the
1990 revision of CALJIC 8.80, which provided that, for the jury to
find the special circumstances true, the jury must find defendant
was either the actual killer or an aider and abettor who intended
to kill.4 Defendant agrees, but suggests that there may have
been an additional instruction on major participant acting with
reckless indifference, under a now-superseded definition of that
4 Defendant concedes that CALJIC 8.80, as given, “indicates
that the jury was instructed they needed to determine if
appellant was the actual killer or acted with the ‘intent to kill’ in
order to find the special circumstance true.”

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requirement.5 We have reviewed the entirety of defendant’s jury
instructions; there was no instruction indicating the special
circumstances could have been satisfied with a finding of major
participant acting with reckless indifference.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
5 The concept that the special circumstance could be satisfied
by a finding that the defendant was a major participant acting
with reckless indifference was added to the law by Proposition
115 in 1990. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 286,
297-298.) Although defendant was tried in 1993, the murders
were committed in 1989.

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