People v. Martinez CA4/2

BACKGROUND

1. The circumstances leading to defendant’s conviction

The background leading up to defendant’s petition for resentencing is taken from

the record on appeal and our opinion issued in defendant’s appeal from the judgment,

People v. Martinez (June 18, 2004, E033679) [nonpub. opn.] (Martinez I).

In 2001, defendant, a gang member, set out with other gang members to fight the

murder victim (a rival gang member) who had thrown a beer bottle either at defendant or

defendant’s car a few weeks earlier. Although various witnesses gave different accounts

detailing how the crimes unfolded, each concluded defendant shot and killed the bottle-

thrower. He also shot another person, Jimmy, in the hip and in the back.

A jury convicted defendant of second-degree murder and premeditated attempted

murder, and of committing both crimes for the benefit of a criminal street gang and with

the personal use of a firearm causing great bodily injury or death. In bifurcated

proceedings, defendant pled guilty to being an ex-felon in possession of a firearm and the

court found true an allegation that he had suffered a prior strike. Defendant was

sentenced to two life terms, plus 80…