Filed 10/8/26 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F089275
Plaintiff and Respondent,
(Super. Ct. No. 01CM7723-002)
v.

ALFREDO MARTINEZ, OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kings County. Robert Shane
Burns, Judge.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, David A. Lowe and Barton
Bowers, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
 Pursuant to Penal Code section 1172.75,1 defendant and appellant Alfredo
Martinez was resentenced in Kings Superior Court case No. 01CM77223-002 (Kings
County case). He timely appealed and claims the trial court erred when it failed to
conduct a full resentencing that included reconsideration of the upper term sentence
imposed in Los Angeles Superior Court case No. KA006412 (Los Angeles County case).
He also claims entitlement to remand with instructions to the trial court to vacate his
restitution fine under section 1202.4, recalculate his custody credits, and issue an
amended abstract of judgment.
The People concede defendant is entitled to relief from the restitution fine,
remand for recalculation of his time credits and issuance of an amended abstract of
judgment. However, they dispute any entitlement to relief from the upper term sentence
imposed in the Los Angeles County case.
As explained herein, we conclude that defendant forfeited his claim of error
arising from the trial court’s failure to consider his upper term sentence in the Los
Angeles County case by failing to raise the issue in the trial court.2 Accordingly, we
vacate defendant’s restitution fine, and remand this matter for the trial court to recalculate
defendant’s custody credits and issue an amended abstract of judgment. We otherwise
affirm the judgment.
PROCEDURAL BACKGROUND
In 1991, in Los Angeles County, defendant was convicted of attempted murder
and assault with a firearm on a peace officer with enhancement findings for personal use
of a firearm. (§§ 187, subd. (a)/664, 245, subd. (d)(1), 12022.5.) Defendant was
sentenced to the upper term of nine years for attempted murder, four years for the firearm

1 All undesignated statutory references are to the Penal Code.
2 Defendant does not assert a claim for ineffective assistance of counsel (IAC). This issue
is addressed in part I. of the Discussion.

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enhancement, and 15 years for three prior serious felony conviction enhancements, for a
total determinate term of 28 years in prison. The sentence for assault was stayed under
section 654.
In 2001, in Kings County, defendant committed an in-prison assault and was
charged with assault with a deadly weapon, with allegations that he personally inflicted
great bodily injury, had five prior serious or violent felony convictions within the
meaning of the “Three Strikes” law, and served three prior prison terms. (§§ 4501,
12022.7, subd. (a), 667, 1170.12, 667.5, former subd. (b).) Defendant was convicted in
2002, and sentenced to 25 years to life, with an additional three years for the great bodily
injury enhancement and one year for a prior prison term enhancement, to be served
consecutively to his sentence in the Los Angeles County case.
In 2022, pursuant to section 1172.75, subdivision (b), the Department of
Corrections and Rehabilitation identified defendant as a person in custody serving a term
in the Kings County case that included an enhancement under section 667.5.3 The trial
court appointed counsel for defendant.
In 2024, after numerous continuances and defendant’s retention of private counsel,
the trial court held the resentencing hearing. In a written opposition that preceded
defendant’s written sentencing memorandum, the prosecution conceded entitlement to
having the prior prison term stricken, but opposed any relief under Romero4 and opposed
any relief under section 1172.1, to the extent such relief was sought by defendant. The
prosecution also filed a supplemental opposition that included additional information
relating to defendant’s conduct in prison. In his written memorandum, in addition to
relief from the prior prison term enhancement, defendant sought to have his prior serious

3 Section 1172.75 provides for the recall and resentencing of individuals serving a
judgment that includes a prior prison term enhancement imposed prior to January 1, 2020, under
section 667.5, former subdivision (b). (§ 1172.75, subds. (a)–(c).)
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529–530 (Romero).

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or violent felony convictions stricken under Romero, which would result in a determinate
rather than an indeterminate sentence.
At the hearing, defendant argued for a full resentencing in the Kings County case,
to include consideration of his request for relief under Romero. The prosecution opposed
a full resentencing to the extent it was not restricted to recent changes in the law. The
trial court struck the prior prison term enhancement, but declined to strike any of
defendant’s prior felony convictions. In the context of resentencing defendant, the trial
court also discussed the Los Angeles County case and a Del Norte County case from
1996 in which defendant appears to have received a three-year sentence consecutive to
the Los Angeles County case. The court did not address the issue of custody credits.
Defendant filed a timely appeal. He advances three claims. He argues that the
trial court abused its discretion by failing to consider the validity of his upper term
sentence in the Los Angeles County case. (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391 (Gutierrez).) He also argues this matter must be remanded for the trial court to
vacate his restitution fine (§ 1465.9, subd. (d)) and credit him with the actual days he
spent in custody up to the resentencing hearing (People v. Buckhalter (2001) 26 Cal.4th
20, 40–41 (Buckhalter)).
The People concede relief is due from the restitution fine and in the form of credit
calculation, but they dispute entitlement to remand for another resentencing hearing.
They contend defendant forfeited his claim concerning the upper term sentence in the Los
Angeles County case by failing to raise the issue in the trial court. They also contend this
court lacks jurisdiction to consider any issues relating to the Los Angeles County case
because defendant did not include that case in his notice of appeal; the trial court lacked
jurisdiction over the Los Angeles County case because judgment was final and separate
from the Kings County case; and the upper term sentence is authorized under
subdivision (d)(4) of section 1172.75.

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 DISCUSSION
I. Challenge to Upper Term Sentence in Los Angeles County Case Forfeited
Under California’s determinate sentencing law as it currently stands, “[e]xcluding
properly proven prior convictions or a defense stipulation, a jury finding is now required
for all facts actually relied on to impose an upper term” (People v. Lynch (2024) 16
Cal.5th 730, 757 (Lynch)), and “a Sixth Amendment violation occurs when the trial court
relies on unproven aggravating facts to impose an upper term sentence, even if some
other aggravating facts relied on have been properly established. The violation is
prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury
would have found true all of the aggravating facts relied upon by the trial court to justify
an upper term sentence, or that those facts were otherwise proved true in compliance with
the current statutory requirements. If the reviewing court cannot so determine, applying
the Chapman[5] standard of review, the defendant is entitled to a remand for
resentencing” (id. at p. 768).
Defendant claims the trial court erred when it failed to consider the upper term
sentence imposed in the Los Angeles County case for attempted murder. Characterizing
this as resentencing in the absence of informed discretion, defendant seeks remand for
another resentencing hearing. (Gutierrez, supra, 58 Cal.4th at p. 1391; accord, Lynch,
supra, 16 Cal.5th at pp. 770–773.)
However, “‘[a] party in a criminal case may not, on appeal, raise “claims
involving the trial court’s failure to properly make or articulate its discretionary
sentencing choices” if the party did not object to the sentence at trial. [Citation.] The
rule applies to “cases in which the stated reasons allegedly do not apply to the particular
case, and cases in which the court purportedly erred because it double-counted a
particular sentencing factor, misweighed the various factors, or failed to state any reasons

5 Chapman v. California (1967) 386 U.S. 18 (Chapman).

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or give a sufficient number of valid reasons .…”’” (People v. Scott (2015) 61 Cal.4th
363, 406.) “Strong policy reasons support this rule: ‘It is both unfair and inefficient to
permit a claim of error on appeal that, if timely brought to the attention of the trial court,
could have been easily corrected or avoided. [Citations.]’ [Citation.] ‘“‘“The law casts
upon the party the duty of looking after his legal rights and of calling the judge’s
attention to any infringement of them. If any other rule were to obtain, the party would in
most cases be careful to be silent as to his objections until it would be too late to obviate
them, and the result would be that few judgments would stand the test of an appeal.”’”’”
(People v. Stowell (2003) 31 Cal.4th 1107, 1114 (Stowell); accord, People v. Salazar
(2016) 63 Cal.4th 214, 239–240; People v. French (2008) 43 Cal.4th 36, 46.)
Even constitutional claims may be forfeited if the issue is not raised below (In re
Sheena K. (2007) 40 Cal.4th 875, 880–881), and “‘discretion to excuse forfeiture should
be exercised rarely and only in cases presenting an important legal issue’” (id. at pp. 887–
888, fn. 7). Absent a substantive change in the law that applies retroactively (e.g., People
v. Salazar (2023) 15 Cal.5th 416, 431–432; People v. Stamps (2020) 9 Cal.5th 685, 698–
699), or an extenuating circumstance such as the futility of objecting under the then-
governing substantive law (e.g., People v. Perez (2020) 9 Cal.5th 1, 7–8; People v.
Brooks (2017) 3 Cal.5th 1, 92), neither of which is at issue here, the policy reasons
underlying the forfeiture doctrine fully support its application where a defendant remains
silent in the trial court during resentencing and then seeks to obtain appellate relief based
on an asserted sentencing error that could have been raised at the time of sentencing.
(People v. Scott (1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the
trial court exercises its sentencing discretion and articulates its supporting reasons cannot
be raised for the first time on appeal”].)
Here, defendant failed to seek any relief in the trial court relating to his sentence in
the Los Angeles County case and although the trial court discussed that case during its
colloquy, it did not mention the upper term sentence. The failure to raise the issue in the

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trial court forfeits appellate review of the purported error, and defendant’s reliance on the
unauthorized sentence doctrine to excuse his failure to raise the issue is unavailing.
An unauthorized sentence “fall[s]within [a] ‘narrow’ category of nonforfeitable
error.” (In re G.C. (2020) 8 Cal.5th 1119, 1130.) “[A]an unauthorized sentence or one in
excess of jurisdiction is a sentence that ‘could not lawfully be imposed under any
circumstance in the particular case.’ [Citation.] The appellate court may intervene in the
first instance because these errors ‘present[] “pure questions of law” [citation], and [are]
“‘clear and correctable’ independent of any factual issues presented by the record at
sentencing”’ and without ‘remanding for further findings.’ [Citation.] The rule exists
because correction of sentencing error that is evident from the record and needing no
redetermination of facts does not significantly impact the state’s interest in finality of
judgments. [Citation.] ‘In such circumstances, an individual’s interest in obtaining
judicial review of an allegedly illegal sentence cannot be ignored.’” (Ibid.)
Notwithstanding his contrary argument, defendant’s claim presents a challenge to
the trial court’s asserted failure to exercise its sentencing discretion as to his upper term
sentence and does not involve a sentence that could not be imposed under any
circumstance. Therefore, we find the claim forfeited.
In view of the rapid evolution of criminal law over the past number of years,
defendant may come before the trial court again and the following issue bears mention
because it was not specifically addressed by the parties in the trial court or the parties on
review. As the trial court noted, the facts underlying defendant’s convictions in the Los
Angeles County case are not part of the record, but the record reflects that the trial court
and the parties below were of the view that defendant was serving an indeterminate term
of 28 years to life in the Los Angeles County case. On appeal, the parties agree
defendant was sentenced in the Los Angeles County case to a determinate term of
28 years and the abstract of judgment supports this view.

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 Thus, it appears defendant completed serving the prison sentence for his 1991
convictions in the Los Angeles County case several years before the 2024 sentencing
hearing. (§ 669, subd. (a).) This raises a question of fundamental jurisdiction over the
Los Angeles County case not addressed by either party, but which would be relevant in a
merits determination.6 (People v. Chavez (2018) 4 Cal.5th 771, 780.) Given that we
concluded defendant forfeited any claim of appellate error relating to his upper term
sentence in the Los Angeles County case and that the trial court did not take action in that
case, it is unnecessary to reach this jurisdictional issue and, therefore, we need not
provide the parties with an opportunity to brief it. (Gov. Code, § 68081.) We observe
that defendant does not claim counsel was ineffective,7 but the failure to raise an issue
based on a misunderstanding of your client’s sentence would raise a question as to the
effectiveness of that representation. Nevertheless, here, in view of the fact defendant was
convicted in 1991 and sentenced to a 28-year term, the record does not suggest the
existence of a viable IAC claim because there is no discernible prejudice in failing to

6 The People contend the trial court lacked jurisdiction over the Los Angeles County case,
but their argument is tethered to the principles that “‘[u]nder the general common law rule, a trial
court is deprived of jurisdiction to resentence a criminal defendant once execution of the
sentence has commenced’” (People v. Singleton (2025) 113 Cal.App.5th 783, 790, quoting
People v. Karaman (1992) 4 Cal.4th 335, 344), and “a judgment becomes final ‘“where the
judgment of conviction was rendered, the availability of appeal exhausted, and the time for
petition for certiorari ha[s] elapsed”’” (People v. Padilla (2022) 13 Cal.5th 152, 162; accord,
People v. Lopez (2025) 17 Cal.5th 388, 395).
7 “‘“‘When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived.’”’” (Trinity Risk
Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008,
italics omitted; accord, Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 188, fn. 8 [“[i]t is
not this court’s role to connect the dots”]; Paterno v. State of California (1999) 74 Cal.App.4th
68, 106 [“[a]n appellate court is not required to examine undeveloped claims, nor to make
arguments for parties”]; see Cal. Rules of Court, rule 8.204(a)(1)(B).) “[I]t is a fundamental
principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct
and the burden is on an appellant to demonstrate, on the basis of the record presented to the
appellate court, that the trial court committed an error that justifies reversal of the judgment.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)

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seek relief from a prison term already served. (Harrison v. Richter (2011) 562 U.S. 86,
111, 112 [in IAC context, prejudice requires a showing that “it is ‘reasonably likely’ the
result would have been different” and “likelihood of a different result must be substantial,
not just conceivable”].) As stated, this issue bears mention only because there is always a
possibility this case may come before the trial court again in a posture that requires
attention to the Los Angeles County case and its sentence.
II. Vacatur of Restitution Fine
Next, in 2002, the trial court sentenced defendant in this case and imposed a
$1,000 restitution fine under section 1202.4, with a $1,000 parole revocation restitution
fine, suspended, under section 1202.45. Section 1465.9, as amended effective January 1,
2025, provides, “Upon the expiration of 10 years after the date of imposition of a
restitution fine pursuant to Section 1202.4, the balance, including any collection fees,
shall be unenforceable and uncollectible and any portion of a judgment imposing those
fines shall be vacated.” (Id., subd. (d).) Defendant claims he is eligible for vacatur of the
fine because more than 10 years have passed.8 The People concede the issue.
We accept the concession and vacate the portion of the judgment imposing the
$1,000 restitution fine under section 1202.4. (People v. Greeley (2021) 70 Cal.App.5th
609, 626–627.) After recalculating defendant’s actual custody credits, discussed next, the
trial court shall ensure the amended abstract of judgment omits the restitution fine under
section 1202.4 and the corresponding suspended parole revocation restitution fine under
section 1202.45.
III. Credit Calculation
Finally, section 2900.1 provides, “Where a defendant has served any portion of his
sentence under a commitment based upon a judgment which judgment is subsequently

8 After this appeal was filed, defendant sought relief related to both the restitution fine and
the credit calculation error in the trial court, but the court declined to act in view of the pendency
of this appeal.

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declared invalid or which is modified during the term of imprisonment, such time shall be
credited upon any subsequent sentence he may receive upon a new commitment for the
same criminal act or acts,” and section 2900.5, subdivision (d) provides, “It is the duty of
the court imposing the sentence to determine the date or dates of any admission to, and
release from, custody prior to sentencing and the total number of days to be credited
pursuant to this section. The total number of days to be credited shall be contained in the
abstract of judgment provided for in Section 1213.” In Buckhalter, the California
Supreme Court explained that “when a prison term already in progress is modified as the
result of an appellate sentence remand, the sentencing court must recalculate and credit
against the modified sentence all actual time the defendant has already served, whether in
jail or prison, and whether before or since he was originally committed and delivered to
prison custody.” (Buckhalter, supra, 26 Cal.4th at p. 29.)
The parties agree that the trial court erred in failing to recalculate defendant’s
custody credits at the time of resentencing and include the updated figure on the abstract
of judgment, and that remand is appropriate. Given the absence of a record on this issue,
we accept the People’s concession that the appropriate remedy is to remand the matter to
allow the parties and the trial court to address it in the first instance. (See People v.
Salazar (1994) 29 Cal.App.4th 1550, 1557 [trial court best positioned to ensure custody
credits correctly calculated].) The trial court shall issue an updated abstract of judgment
following proceedings on remand.
DISPOSITION
Pursuant to section 1465.9, subdivision (d), the restitution fine imposed in this
case in 2002 under section 1202.4, subdivision (b), is vacated. This matter is remanded
to the trial court to calculate defendant’s actual custody credits up to the date of
resentencing. The trial court shall issue an amended abstract of judgment that reflects
defendant’s custody credits and omits the restitution fine and the corresponding

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suspended parole revocation restitution fine under section 1202.45, and shall forward the
amended abstract of judgment to the appropriate authorities.
The judgment is otherwise affirmed.

MEEHAN, J.
WE CONCUR:

HILL, P. J.

HARRELL, J.

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