People v. Martinez CA4/1

DISCUSSION

Martinez makes essentially a two-pronged attack on the trial court's order. First he

argues the trial court applied the preponderance of evidence standard of proof in

determining the truth of the factor which rendered him ineligible for resentence. The

second attack is based on the claim that his 20-year-to-life sentence imposed in 1976, just

prior to the enactment of the determinate sentencing law, is not the type of sentence

referred to in the reform act because the statute on which it was based, section 213, was

repealed in 1977. (Stats. 1977, ch. 165, § 5, p. 642.) He argues the offense today would

not be punishable by a life sentence. We disagree with both assertions. However we will

3 first discuss the issue of whether the order can be appealed and then address Martinez's

contentions in order.

A. Should the Appeal Be Dismissed?

The People contend this appeal must be dismissed because Martinez was not

eligible for resentencing, therefore the order denying his petition for resentencing is not

appealable. (People v. Totari (2002) 28 Cal.4th 876, 883, 886-887.) The People

concede, however that the question of whether an order denying a…