Martinez

In this case we conclude that defendant’s 1980 Texas murder conviction was for an offense which, under Texas law, included all of the elements of second degree murder as defined by California law, and, therefore, constituted a prior murder conviction within the meaning of Penal Code section 190.2, subdivision (a)(2) . We therefore reverse the trial court’s order denying the prosecution’s motion, pursuant to section 871.5, to reinstate the prior-murder special-circumstance charge based on that Texas murder conviction, after the magistrate did not hold defendant to answer on that charge following a postindictment preliminary hearing.

Procedural Background

After the grand jury returned a “true bill,” the district attorney filed an indictment charging defendant with the 1988 murder of Victor Mares Castillo. The district attorney included charges in the indictment that defendant used a firearm in the commission of the murder and that defendant previously had been convicted of murder, within the meaning of section 190.2, subdivision (a)(2), in Harris County, Texas. Defendant requested a postindictment preliminary hearing, which the trial court granted only on the prior-murder…