People v. Martinez CA2/3

INTRODUCTION

In 1988, defendant David Martinez was convicted of second degree murder. He appeals from the denial of his petition for recall and resentencing under Penal Code section 1170.95. Defendant contends that the trial court erred by denying his petition without issuing an order to show cause. Specifically, he argues the court engaged in improper fact-finding by relying on the opinion in his prior appeal. Based on the instructions at trial, however, although the jury in this case could have convicted defendant of first degree murder under a felony murder theory, the only theory of guilt for second degree murder was malice aforethought.1 Because defendant could not have been convicted under a now-invalid theory of murder, he is ineligible for relief as a matter of law. We therefore affirm.

BACKGROUND2

By information dated February 9, 1988, defendant and three other men were charged with one count of murder (Pen. Code,3 § 187, subd. (a); count 1) and one count of aggravated assault (§ 245, subd. (a); count 2). Count 2 was subsequently dismissed under section 995. (People v. Martinez, et al. (Nov. 27, 1990, B041553) [nonpub. opn.] [p. 6] (Martinez).)4 A jury

1 The People’s…