People v. Martinez CA4/3

INTRODUCTION

Defendant Jorge Martinez appeals from a postjudgment order denying his petition for resentencing made pursuant to Penal Code former 1 section 1170.95 (now Pen. Code, § 1172.6). He contends he is eligible for relief under section 1172.6 because ambiguities in the jury instructions given at his trial in 2002 allowed the jury to convict him of second degree murder under a theory by which malice could be imputed to him based solely on his participation in the crime. The trial court denied the petition at the prima facie stage. We affirm. Section 1172.6 affords relief only if “[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (Id., subd. (a)(3).) Defendant is in effect contending his 2002 conviction was invalid at that time due to erroneous or ambiguous jury instructions that could have led the jury to impute malice. Whether Defendant now could be convicted of second degree murder is unaffected by the changes to sections 188 and 189 that became effective January 1, 2019. He therefore failed as a matter of law to show eligibility for relief under section…