Filed 6/17/26 P. v. Martin CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B343667
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA037711)
v.
RUSSELL MARTIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John J. Lonergan, Judge. Affirmed.
Megan Denkers Baca, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Russell Martin appeals an order denying his request for
resentencing under Penal Code section 1172.1.1 After Martin
submitted his petition, the trial court appointed counsel, ordered
the People to file a written response, and held a contested
hearing. The trial court then declined to exercise its discretion to
recall Martin’s sentence and denied his petition.
Martin contends the trial court abused its discretion in
denying his request for resentencing. The People contend the
appeal should be dismissed because Martin was not entitled to
file a petition and the trial court’s denial was not an appealable
order affecting his substantial rights.
We conclude the trial court’s order was appealable under
the circumstances of this case. However, we find the trial court
did not abuse its discretion in declining to recall and resentence
Martin. We affirm the order denying Martin’s petition.
FACTUAL AND PROCEDURAL BACKGROUND
Background
In 1997, Martin choked and slapped his ex-girlfriend and
beat her head against the ground. She required stitches for her
injuries.2
In 1997, a jury convicted Martin of assault by means of
force likely to produce great bodily injury (§ 245, subd. (a)(1))
with personal infliction of great bodily injury (§ 12022.7,
subd. (a)). The trial court found true allegations that Martin had
1 Subsequent statutory references are to the Penal Code.
2 The undisputed facts underlying Martin’s conviction are
taken from the probation officer’s report, which Martin and the
People cited below and in their appellate briefing.
2
prior convictions for manslaughter (§ 192, subd. (b)), burglary
(§ 459), and robbery (§ 211). The court sentenced Martin,
pursuant to the Three Strikes Law, to a total of 43 years to life,
consisting of 25 years to life for the assault conviction, plus three
years for the great bodily injury enhancement, and 15 years for
three 5-year prior enhancements pursuant to section 667,
subdivision (a). An appellate court affirmed the judgment.
(People v. Martin (Nov. 24, 1998, B119753) [nonpub. opn.].)
Between 1999 and 2024, Martin filed multiple petitions for
writ of habeas corpus, which the trial court denied. In 2013,
Martin filed a petition for recall of sentence pursuant to
section 1170.126, which the trial court also denied.
Section 1172.1 Petitions and Hearings
In 2024, Martin filed a petition for recall of sentence and
resentencing pursuant to section 1172.1. He argued he was
eligible for consideration for a new sentence based on changes to
the Three Strikes Law since he was sentenced. Martin asked the
trial court to exercise its discretion “to strike some or all outdated
five year enhancements.” He stated that he took responsibility
for his crime and had participated in self-help groups. He also
requested that the trial court consider his serious health
conditions. Martin attached 16 letters of support and 12
“laudatory chronos from correctional officers requesting [his]
resentencing and release and letters to the DA from officers who
have supervised [him] over the last fifteen (15) years.”3 The
letters from prison staff stated that Martin was “an exceptional
3 “ ‘A “chrono” is an institutional documentation of
information about inmates and inmate behavior.’ [Citation.] It is
short for ‘custodial counseling chronology reports.’ [Citation.]”
(People v. Craig (2026) 117 Cal.App.5th 1165, 1169, fn. 2 (Craig).)
3
intermediary between inmates and staff,” would “be an asset to
the community when he paroles,” and “exemplifies someone that
deserves a second chance.” Based on Martin’s petition, the trial
court appointed counsel and set a hearing date for the petition.
Martin’s appointed attorney filed a petition asking the
court to strike two of Martin’s three prior strikes, which would
result in a 26-year determinate sentence. The petition argued
that the trial court was authorized to take up Martin’s invitation
to recall and resentence, and various factors supported striking
two of his prior offenses. Martin’s criminal history before the
three strike cases consisted of misdemeanors. Although Martin
“admittedly, does not have the best prison ratings,” he had a low
California Static Risk Assessment score, which suggested a low
risk of recidivism. He also substantially lowered his
classification score over the prior eight years, which
“demonstrate[d] his steady turnaround.” The petition
acknowledged that Martin was sentenced to an additional four
years while in prison for possession of heroin and marijuana, and
that he had rules violations for violent behavior. However, it
argued the drug sentence was nearly 20 years old, “the last act of
violence was 14 years” earlier, and Martin had not had any
serious rule violations for nine years. Martin also had high
family support and many recommendations for release from
prison staff. Finally, Martin had a recurring abdominal abscess
resulting from a decades-old gunshot wound and had never seen
a specialist.
In addition to the support letters and laudatory chronos,
the petition attached California Department of Corrections and
Rehabilitation (CDCR) records, including a “Classification
4
Committee Chrono,” classification scoresheet, list of credits
received and lost, and an inmate assignment history.
At a November 2024 hearing, which Martin attended
remotely, the trial court initially stated that it lacked jurisdiction
to recall and resentence Martin in the absence of a
recommendation from the CDCR or District Attorney’s office, and
would “take no further action on the defendant’s petition.”
However, after Martin’s attorney informed the court that he had
filed “about a hundred-page motion . . . backing Mr. Martin’s
petition,” the court stated it would “have to set another date.”
The court indicated the further hearing was to allow the People
and the CDCR an opportunity to consider making a
recommendation to recall and resentence Martin. It instructed
the People to present their position to the court in writing and
stated Martin could file a response. The court would “read both
sides’ papers and then we’ll decide how we are going to proceed
from there.”
In their opposition to the petition, the People did not
dispute that Martin was eligible for resentencing because of
changes to applicable sentencing laws. However, they argued it
was not in the interest of justice to reduce Martin’s sentence
because his case was a “serious and violent domestic violence
case” and “[i]t is common knowledge today that domestic violence
is a highly recidivist crime.” The People asserted that Martin
was a level IV security risk and had a high classification score
“despite his age and decades-long incarceration,” which “strongly
suggest[ed] he poses an unreasonable risk to public safety.” The
People also cited Martin’s prison rule violations and the fact that
his criminal conduct escalated from misdemeanors to
“increasingly dangerous and violent” conduct.
5
Martin submitted a reply brief, arguing that the People’s
opposition “seems to basically boil down: once a criminal, always
a criminal, or more specifically, once a domestic violence offender,
always a domestic violence offender,” and ignored the
circumstances weighing in favor of recall and resentencing.
At the continued hearing in January 2025, the trial court
stated that counsel and the court had discussed the matter in
chambers “to make sure everybody had an opportunity to make a
thorough record.”4 The court thanked counsel for their briefing
and stated that it “allowed [the court] to make a good and just
ruling on cases such as this.” The court recognized “its discretion
that I on my own can also consider relief,” and that it “sort of did
that in this case . . . .”
The trial court further stated: “[T]his case kind of jumped
out on me because of the documentation that was provided both
by the petitioner and . . . [his attorney] when he came on board
and I thought it worthy to look into this further. And, so, I put it
over, got a counsel assigned, the right attorneys that deal with
these petitions. And, then, ultimately, we had several
appearances ultimately leading to today after I got all the
documentation, gave both sides a chance to brief, but my intent
also which happened was for the two sides to discuss to see if
there was a possibility that people when it was assigned and [sic]
to an attorney that could really . . . get into the facts . . . so they
can make a reasonable and just position. In this case they
happen[ed] to oppose it but the process worked in [sic] the reason
I put this over to allow that process to work.”
4 Martin did not attend this hearing. Martin’s attorney
appeared on his behalf pursuant to section 977. (§ 977,
subd. (b)(2).)
6
The trial court explained that it had “seen a lot of petitions
and a lot of [CDCR] records” and “applaud[ed] [Martin] for his
conduct and for how he’s trying to improve himself and help
others while he’s been in state prison on this case.” The court
recognized again that it had the discretion to provide relief even
in the absence of a recommendation from the CDCR or the
People. However, it stated: “So looking at everything and
including the things [Martin has] been doing, this is not a
situation based on these facts and looking at all the criteria that
this court is willing to go against the recommendation of the
People, which they’re in the best situation to know all the facts,
not only of the underlying crime but if they’ve contacted victims
or—and also doing a thorough look at the [CDCR] records and the
criminal history as [the People] did and outlined in [their]
opposing papers. Then, again, I have nothing from [CDCR],
which I thought maybe there was a possibility based on the
reviews of people that work in where he’s being housed, but as
the court indicated in chambers and I’m indicating now on the
record, this court based on these set of facts and these
circumstances is not willing to make on my own motion
resentence Mr. Martin.” The court explained it made this
decision “after looking at the totality of all the facts . . . ,
considering the circumstances of the incident and . . . that were
many victims that are part of this case as a result of the crime,
not to mention his criminal history.”5
5 The court clarified that its reference to victims included
“family members, friends, coworkers” of the victim, and Martin’s
attorney “concede[d] family members were actually involved in
this incident.”
7
The trial court concluded: “Pursuant to section 1172.1[,]
subdivision (c)[,] the defendant is not entitled to collateral
petition seeking relief from the court under section 1172.1. If the
defendant requests consideration for such relief, the court is not
required to respond. Accordingly, I will take no further action on
defendant’s petition.”
The trial court came back on the record to “make it very
clear [the court] thoroughly reviewed all motions that were
submitted to [it] with all attachments, appendices, including
criminal histories that were laid out, including Mr. [Martin]’s
numerous petitions . . . .” Martin’s attorney stated that it was
“abundantly clear to the defense that the court thoroughly
reviewed everything.”
Martin timely appealed.
DISCUSSION
I. The Trial Court’s Order Was Appealable
The People contend that Martin’s appeal should be
dismissed because the order is nonappealable. They assert the
court’s denial of the petition did not affect Martin’s substantial
rights because section 1172.1 does not permit a defendant to file
a petition for recall and resentencing under that section. Martin
argues that case law establishes the order is appealable because
the trial court’s denial of the petition after responding to and
inviting briefing and argument from both sides affected his
substantial rights.
Under section 1172.1, a trial court may recall a defendant’s
sentence and resentence the defendant either (1) “on its own
motion, within 120 days of the date of commitment or at any time
if the applicable sentencing laws at the time of original
sentencing are subsequently changed by new statutory authority
8
or case law,” or (2) “at any time upon the recommendation of”
specified law enforcement officials. (Id., subd. (a)(1).)
However, under section 1172.1, subdivision (c), defendants
are “not entitled to file a petition seeking relief from the court
under this section. If a defendant requests consideration for
relief under this section, the court is not required to respond.”
Accordingly, a defendant who files “an unauthorized request for
resentencing has no right to a ruling.” (People v. Hodge (2024)
107 Cal.App.5th 985, 996 (Hodge).)
Section 1237 governs a defendant’s right to appeal in
criminal cases. It provides that a defendant “may appeal from
(1) a final judgment of conviction (§ 1237, subd. (a)), and (2) ‘any
order made after judgment, affecting the substantial rights of the
party.’ (§ 1237, subd. (b).)” (Hodge, supra, 107 Cal.App.5th at
p. 992.) In Hodge, the Court of Appeal, in considering an appeal
from the summary denial of a defendant’s request for recall and
resentencing under section 1172.1, held that a “trial court’s
decision not to exercise its discretion to recall [a defendant’s]
sentence [does] not affect [a defendant’s] substantial rights under
section 1237, subdivision (b), because the trial court had no
statutory obligation to act at all on [the defendant’s] request.”
(Hodge, at p. 991.) Since “a defendant has no right to demand
that the trial court actually make such a decision,” the “trial
court’s choice not to make one does not deprive the defendant of
any right, much less a substantial one.” (Id. at p. 996.) Hodge
reasoned that because the trial court’s order did not affect the
defendant’s substantial rights, and the appeal was not from a
final judgment of conviction, there was no statutory right to
appeal. (Ibid.)
9
Other Courts of Appeal have followed Hodge and concluded
that a trial court’s decision declining to consider a defendant’s
resentencing request under section 1172.1 is not appealable.
(People v. Brammer (2025) 117 Cal.App.5th 675, 696; People v.
Brinson (2025) 112 Cal.App.5th 1040, 1045; People v. Roy (2025)
110 Cal.App.5th 991, 994; People v. Faustinos (2025) 109
Cal.App.5th 687, 693 (Faustinos); People v. Wilson (2025) 109
Cal.App.5th 198, 202.)
However, in People v. Olea (2025) 115 Cal.App.5th 889, 901
(Olea), the court held the denial of the defendant’s request for
resentencing under section 1172.1 was appealable because the
circumstances “differ[ed] from Hodge, Roy, and Faustinos such
that the order issued affected Olea’s substantial rights.” In Olea,
the court found it “noteworthy that the trial court took a number
of procedural steps that did not take place in the aforementioned
cases, including appointment of counsel at Olea’s request,
ordering the release of subpoenaed records from the CDCR to the
defense, ordering the defense to provide copies of these records to
the People, and setting a contested hearing on Olea’s request, at
which Olea appeared remotely.” (Olea, at p. 901.) The trial court
expressly found the subpoenaed records relevant to the
proceeding, held a hearing at which it heard arguments from
both parties, “and made statements in its final ruling that
reflected it had reviewed the original sentence in full, along with
the briefs and attached exhibits. Though the court indicated that
it was declining Olea’s invitation to recall and resentence him, it
also stated that it found the original sentence to be ‘just’ ” and
explained its reasoning for that conclusion on the record. (Ibid.)
“[T]he trial court chose not only to respond, but it did so in a
manner which effectively mirrored those rights afforded to a
10
petitioner after a resentencing request has been initiated by one
the enumerated agencies in section 1172.1,
subdivision (b)(1) . . . .” (Id. at p. 902.) Accordingly, “the trial
court effectively evaluated and denied Olea’s petition on the
merits, thus affecting Olea’s substantial rights.” (Ibid.)
In Craig, supra, 117 Cal.App.5th at page 1173, the Court of
Appeal similarly concluded that the trial court’s order affected
the defendant’s substantial rights where the trial court “did not
issue an order declining to consider [the defendant’s]
unauthorized petition,” but instead “took most of the same
procedural steps the superior court in Olea did.” The court
observed that, although the trial court was not required to
consider the defendant’s petition, it “not only considered it, but
did so in much the same way section 1172.1 requires the court to
respond to an authorized request, such as one initiated by the
Secretary of the Department. In effect, the [trial] court accepted
[defendant’s] request to consider recalling his sentence and
resentencing him on the court’s own motion.” (Ibid.)
The trial court here also took many of the same procedural
steps as the court in Olea. It appointed counsel for Martin after
he submitted his initial petition, ordered the People to file a
written response to Martin’s petition, and held a hearing on the
petition. The court “thoroughly reviewed all motions that were
submitted to [it]” and declined to exercise its discretion to recall
and resentence Martin based in part on the circumstances of the
crime, its impact on the victim, and Martin’s criminal history.
“Considering the entirety of the actions taken by the trial court
following [Martin’s] initial petition—in conjunction with merit-
based statements made at the contested final hearing, the trial
court effectively evaluated and denied [Martin’s] petition on the
11
merits, thus affecting [his] substantial rights.” (Olea, supra, 115
Cal.App.5th at p. 902.)
The People argue Olea and Craig were improperly decided.
However, the People rely on Faustinos, Hodge, and People v.
Gallardo (2000) 77 Cal.App.4th 971, in which the trial courts
summarily denied the defendant’s request. (Faustinos, supra,
109 Cal.App.5th at p. 693; Hodge, supra, 107 Cal.App.5th at
p. 991; Gallardo, at pp. 984–985 [trial court order denying
defendant’s letter request to strike counts previously stayed
without hearing not appealable]; see also Craig, supra, 117
Cal.App.5th at pp. 1174–1175 [distinguishing Gallardo and
Faustinos].) The People further argue that the circumstances of
this case are distinguishable because the trial court appointed
counsel, ordered briefing, and held hearings to give Martin an
opportunity to obtain a recommendation for recall and
resentencing from the People or the CDCR. Certainly, that was
“part of [the trial court’s] process.” However, the court also
recognized it could recall and resentence Martin on its own
motion and that it “sort of did that in this case.” The record
establishes that the trial court did not deny the petition solely
because Martin did not obtain a recommendation from the People
or CDCR.
The People also contend the trial court’s conclusion that it
was not required to respond to Martin’s petition and would take
no further action distinguishes this case from Olea. We disagree.
In Olea, the trial court “ultimately stated it would not ‘exercise
its discretion to recall [Olea’s] sentence and will not recall and
resentence the defendant at his request pursuant to Penal Code
Section 1172.1,’ ” and cited section 1172.1, subdivision (c). (Olea,
supra, 115 Cal.App.5th at p. 896.) However, it also found the
12
original sentence to be just based on the circumstances of the
crime. (Ibid.) As the People concede, the trial court in this case
also expressly relied on Martin’s specific circumstances in
denying the petition. The trial court’s order was not
meaningfully different from the order in Olea.
We therefore conclude the trial court’s ruling declining to
exercise its discretion to recall and resentence and its denial of
his petition impacted Martin’s substantial rights and was
appealable.
II. The Trial Court Did Not Abuse Its Discretion In
Denying the Petition
“[A] court’s ultimate decision not to recall and resentence is
reviewed for an abuse of discretion. [Citations.] To establish an
abuse of discretion, a defendant must establish the court ‘act[ed]
while unaware of the scope of its discretion’ (People v. Tirado
(2022) 12 Cal.5th 688, 694), ‘considered impermissible factors’
([People v. Carmony (2004) 33 Cal.4th 367, 378]), or made a
choice ‘so irrational or arbitrary that no reasonable person could
agree with it’ (Carmony, at p. 377).” (Olea, supra, 115
Cal.App.5th at pp. 902–903.)
Martin contends the trial court abused its discretion by
treating section 1172.1, subdivision (c), “as a categorical bar
rather than a discretionary safeguard.” Although the trial court
stated at the November 2024 hearing that it lacked discretion to
recall and resentence Martin in the absence of a recommendation
from the CDCR or the People, it repeatedly recognized it had
discretion to do so on its own motion at the subsequent hearing.
The court also “thoroughly reviewed” the petitions, which argued
that a trial court is authorized to recall and resentence “at any
time if the applicable sentencing laws at the time of original
13
sentencing are subsequently changed by new statutory authority
or case law . . . .” (§ 1172.1, subd. (a)(1).) The trial court clearly
understood that while it was not required to consider Martin’s
request for recall and resentencing, it had the discretion to do so.
Martin further argues the trial court abused its discretion
by failing to consider that courts may strike section 667,
subdivision (a) enhancements that were previously mandatory.
However, Martin cited the change in the law in his original
petition, and the record does not indicate that the court declined
to exercise its discretion based on a misunderstanding of current
law. “Absent evidence to the contrary, we presume that the trial
court knew the law and followed it.” (People v. Ramirez (2021) 10
Cal.5th 983, 1042.)
Martin also contends the trial court failed to properly
consider the factors set forth in section 1172.1, subdivision (a)(5).6
Assuming without deciding that the trial court was required to
consider these factors because its process was similar to the
process required under section 1172.1 for an authorized request,
6 “In recalling and resentencing pursuant to this provision,
the court shall consider postconviction factors, including, but not
limited to, the disciplinary record and record of rehabilitation of
the defendant while incarcerated, evidence that reflects whether
age, time served, and diminished physical condition, if any, have
reduced the defendant’s risk for future violence, and evidence
that reflects that circumstances have changed since the original
sentencing so that continued incarceration is no longer in the
interest of justice. Evidence that the defendant’s incarceration is
no longer in the interest of justice includes, but is not limited to,
evidence that the defendant’s constitutional rights were violated
in the proceedings related to the conviction or sentence at issue,
and any other evidence that undermines the integrity of the
underlying conviction or sentence.” (§ 1172.1, subd. (a)(5).)
14
we find no error. (See Olea, supra, 115 Cal.App.5th at p. 903
[language of § 1172.1 did not indicate “that any procedural steps
taken by the trial court prior to ruling on a defendant’s self-
initiated petition would divest or limit the trial court’s discretion
to not recall and resentence on its own motion”].)
That the trial court did not expressly address all
postconviction factors on the record does not demonstrate that it
failed to consider them. (Cf. People v. Myers (1999) 69
Cal.App.4th 305, 310 [“fact that the court focused its explanatory
comments on” one sentencing factor “does not mean that it
considered only that factor” and was insufficient to establish
abuse of discretion].) Martin’s briefing addressed the relevant
postconviction factors at length, and the trial court thoroughly
reviewed the briefing and all exhibits filed. Indeed, defense
counsel agreed that it was “abundantly clear” the court had done
so. The court also referenced the laudatory chronos and
applauded Martin’s efforts to improve himself and help others,
which demonstrates that it considered Martin’s conduct after his
conviction.7
7 In re Lawrence (2008) 44 Cal.4th 1181, and In re Stoneroad
(2013) 215 Cal.App.4th 596, do not assist Martin. Those cases
held that “the aggravated nature of the crime does not in and of
itself provide some evidence of current dangerousness to the
public” (Lawrence, at p. 1214), and cannot, standing alone, justify
denial of parole (Stoneroad, at p. 621). In Stoneroad, the court
found that the Parole Board’s failure to discuss any evidence
indicative of suitability for release in its written decision
established that it failed to consider those factors. (Id. at
pp. 622–623.) Even assuming the reasoning of those cases
applies outside the parole context, the trial court expressly
considered Martin’s postconviction conduct.
15
The language of the statute does not support Martin’s
related argument that the trial court gave improper weight to the
facts of the commitment offense relative to the postconviction
factors. Section 1172.1, subdivision (a)(5), provides only that a
court “shall consider postconviction factors.” It does not state
what weight those factors should be given relative to other
relevant considerations. Martin’s argument amounts to a request
that we reweigh the evidence, which we may not do. (See People
v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1250 [under abuse
of discretion standard, “ ‘[w]e do not reweigh the evidence or
substitute our notions of fairness for the trial court’s’ ”].)
Finally, Martin asserts the trial court improperly deferred
to the prosecution and failed to exercise its independent
judgment. This is not a fair characterization of the record. The
trial court considered the circumstances of the crime, Martin’s
criminal history, and his postconviction conduct, and ultimately
declined to exercise its discretion to recall and resentence Martin
against the People’s recommendation. In other words, the
People’s position was one consideration among several. Martin
does not identify any language in section 1172.1 that precludes a
trial court from considering the People’s or CDCR’s
recommendation in deciding whether to recall and resentence a
defendant on its own motion or limits the weight a
recommendation may be given.
We conclude the trial court did not abuse its discretion.
The court’s reasoning was not arbitrary or irrational, and it did
not make any statements demonstrating a mistaken
understanding of the law. (Cf. Craig, supra, 117 Cal.App.5th at
p. 1176 [trial court abused discretion by denying petition based
16
on erroneous conclusion that defendants sentenced pursuant to
plea bargains cannot obtain relief under § 1172.1].)
DISPOSITION
The trial court’s order denying defendant’s section 1172.1
resentencing petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
HANASONO, J.
17