People v. Martinez CA4/3

FACTS

The relevant facts related to this appeal can be summarily set forth. In 2004, the Orange County District Attorney filed an Information alleging that Martinez and two other individuals committed murder (count 1; § 187, subd. (a)) and street terrorism (count 2; § 186.22, subd. (a)). It was further alleged that the murder was gang related (§ 186.22, subd. (b)), and that each of the defendants was a gang member who vicariously discharged a firearm which resulted in the death of the victim (§ 12022.53, subds. (d) & (e)(1)). Counsel was appointed to represent Martinez; he then entered pleas of not guilty to each of the charges, and he denied the special allegations. Martinez went to trial; mid-trial he elected to change his plea. On May 26, 2005, he pleaded guilty to first degree murder. In exchange, the district attorney agreed to dismiss count 2 and to strike the enhancements.

1 All further statutory references are to the Penal Code.

2 At the time Martinez changed his plea, he personally executed under 2 penalty of perjury the standard Tahl form which contained a factual basis for his guilty plea which said this: “On 4/18/04 in Orange County I willfully & unlawfully with…