Filed 9/8/26 P. v. Martinez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B350669
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 24CJCF04858)
v.
GERARDO MARTINEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry A. Bork, Judge. Sentence vacated;
remanded for resentencing.
Richard B. Lennon, 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, Stephanie C. Brenan and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.
Gerardo Martinez contends, and the People concede, that
the trial court erroneously composed Martinez’s eight-year prison
sentence. We agree with the parties. We vacate the sentence
and remand the matter to the trial court for resentencing.
PROCEEDINGS
A felony complaint filed on August 5, 2024, charged
Martinez with driving or taking a vehicle without consent. (Veh.
Code, § 10851, subd. (a); count 1.) The complaint alleged that
Martinez had been convicted of 10 felonies within the meaning of
Penal Code,1 section 1203, subdivision (e)(4), and convicted of two
dangerous or violent felonies within the meaning of the Three
Strikes law (§§ 667, subds. (b)–(j), 1170.12). The complaint
further alleged that Martinez had served a prior term in prison
and county jail pursuant to California Rules of Court, rule
4.421(b)(3). Finally, the complaint alleged that Martinez had
been convicted of two other instances of taking or driving a
vehicle without consent (Veh. Code, § 10851, subd. (a)), within
the meaning of section 666.5.
On July 22, 2025, Judge Yvette Verastegui made Martinez
an indicated offer of two years, the sentence offered by the
People. Defense counsel requested a suspended sentence. The
court stated that it would put off sentencing to allow Martinez to
get his affairs in order, but would not suspend the sentence.
Martinez refused the offer and chose to proceed with trial.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
On July 23, 2025, Judge Terry A. Bork informed the parties
that the court would honor Judge Verastegui’s offer, even though
the People now opposed it. Judge Bork indicated the court would
strike Martinez’s two strike convictions and sentence him to the
lower term of two years pursuant to section 666.5. Martinez
would enter the plea that day, but sentencing would be put off for
approximately one month. Martinez would agree to a Cruz
waiver.2 Martinez would be required to appear at all hearings,
obey all laws, be truthful with the court regarding his alleged
medical condition, and provide the court with records
substantiating his condition. Martinez agreed to these terms.
The same day, Martinez pleaded no contest to driving or
taking a vehicle without consent (Veh. Code, § 10851, subd. (a)),
and admitted all allegations charged. Martinez waived the right
to be sentenced within 24 days of his conviction, with the
understanding that he would be sentenced within the next six
months. In the interim, the court released Martinez on his own
recognizance. The court warned Martinez that if he failed to
appear at a hearing the court would sentence him to the
maximum term of eight years in prison.
On September 4, 2025, the trial court held a sentencing
hearing. The court stated that Martinez had failed to meet the
conditions of the plea. Martinez failed to provide records to
substantiate his medical condition, and he was charged with a
2 “A ‘Cruz waiver’ gives a trial court the power to ‘withdraw
its approval of the defendant’s plea and impose a sentence in
excess of the bargained-for term,’ if the defendant willfully fails
to appear for sentencing. (People v. Cruz (1988) 44 Cal.3d 1247,
1254, fn. 5.)” (People v. Puente (2008) 165 Cal.App.4th 1143,
1146, fn. 3.)
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new felony. The court agreed with the probation officer regarding
the factors in aggravation: Martinez had numerous convictions of
increasing seriousness, he had served a prior prison or jail term
under section 1170, subdivision (h), and his prior performances
on probation and parole were unsatisfactory. The court found no
mitigating factors. The court imposed an aggregate term of six
years in count 1, composed of the high term of three years
doubled pursuant to the Three Strikes law, plus an additional
term of two years pursuant to section 666.5. The court stated,
“The total aggregate term of imprisonment imposed for all counts
and enhancements in this case is eight years.” (Italics added.)
Martinez timely appealed.
DISCUSSION
The parties agree that the trial court erred in imposing
Martinez’s eight-year term as a three-year term under Vehicle
Code section 10851, doubled pursuant to the Three Strikes law,
plus a two-year enhancement pursuant to section 666.5. Section
666.5 is not an enhancement. It is an alternative sentencing
scheme. (People v. Lee (2017) 16 Cal.App.5th 861, 869.) The
sentencing triad for section 666.5 is two, three, and four years.
(§ 666.5, subd. (a).)
The parties and the trial court intended and agreed that
Martinez would be sentenced to the upper term of four years
pursuant to section 666.5, doubled to eight years pursuant to the
Three Strikes law if he failed to comply with the conditions of the
plea agreement. Because the court made a judicial error in
rendering the judgment and not a clerical error (People v. Boyd
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(2024) 103 Cal.App.5th 56, 63), we remand the matter to the trial
court to resentence Martinez pursuant to the plea agreement.
DISPOSITION
We vacate the sentence and remand the matter to the trial
court for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOOR, J.
We concur:
HOFFSTADT, P. J.
KIM (D.), J.
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