Stanford Law School - Robert Crown Law Library

Filed 4/3/03

IN THE SUPREME COURT OF CALIFORNIA

In re PAMELA C. MARTINEZ, )
S103581
Ct.App. 2/7 B150882
on
Habeas
Corpus.
Los Angeles County

Super.Ct.No. YA023049

The Penal Code provides that inmates in county jails and state prisons may
have their sentences reduced as a reward for their conduct, including work and
good behavior. The rate at which inmates accrue credit depends on numerous
factors, including whether the confinement is presentence or postsentence. A jury
convicted petitioner, her conviction was reversed, and she then pleaded guilty.
She now contends her state prison confinement prior to the reversal must be
characterized as presentence for credit accrual purposes.
In
People v. Buckhalter (2001) 26 Cal.4th 20 (Buckhalter), we held that a
petitioner who is serving a state prison sentence and is remanded for resentencing
retains postsentence status for credit accrual purposes. (Id. at pp. 40-41.) We
expressly declined to “consider the proper credit treatment of one who spends time
in custody after his convictions have been reversed on appeal, thus setting the
entire matter at large.” (Id. at p. 40, fn. 10.) We now face the question left
unanswered in Buckhalter. We conclude petitioner’s prereversal prison time
ought not be viewed as presentence custody, and her credit accrual should be
calculated in accordance with her ultimate postsentence status.
1

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I. PROCEEDINGS BELOW
Petitioner was taken into custody on February 11, 1995. A jury convicted
her of petty theft with priors (Pen. Code, § 666),1 and determined she had two
prior strikes within the meaning of sections 667 and 1170.12. On July 9, 1996, the
trial court sentenced petitioner to a state prison sentence for 25 years to life
pursuant to the three strikes law. On July 9, 1999, petitioner obtained a reversal of
her conviction on habeas corpus review due to her receiving ineffective assistance
from trial counsel. On August 19, 1999, petitioner pleaded guilty to the
underlying charge, and the trial court dismissed one of her prior strikes.
For convenience we designate four distinct phases of this history. Phase I
is the period from the initial arrest to the initial sentencing, which in this case
continued from February 11, 1995 until July 9, 1996. Phase II is the period from
the initial sentencing to the reversal (July 9, 1996 through July 9, 1999). Phase III
is the period from the reversal to the second sentencing (July 9, 1999 until
August 19, 1999), and phase IV is the period after the second and final sentencing
(after August 19, 1999). The parties do not dispute that petitioner should accrue
credits as a presentence inmate for phases I and III (see § 4019), and they likewise
agree that petitioner should accrue credits as a postsentence second striker for
phase IV. The dispute lies in the characterization of the three-year phase II status.
The trial court resentenced petitioner on August 19, 1999, after she had
pleaded guilty. The court recalculated the entire period prior to August 19, 1999
(phases I, II and III) as presentence time, granting petitioner conduct credit for 50
percent of her actual custody time. Under this theory, petitioner’s phase II credit

1
All further statutory references are to the Penal Code.
2

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accrual (up to 50 percent pursuant to section 4019, subd. (f)) is based on her phase
III status as a presentence inmate.
The trial court again resentenced petitioner on April 17, 2001.2 The court
granted petitioner credit under the presentence section 4019 formula for phases I
and III, and granted petitioner 20 percent conduct credit in accordance with the
limitations expressed in sections 667, subdivision (c)(5) and 1170.12, subdivision
(a)(5) for phases II and IV. This sentencing based petitioner’s phase II status on
her ultimate phase IV status as a recidivist with one prior strike.
The Court of Appeal endorsed the 1999 sentencing position, reasoning that
the reversal of petitioner’s conviction meant the initial conviction ceased to exist.
Accordingly, petitioner could not have been a postsentence inmate during phase II
because there was no valid conviction and sentence in existence. The Attorney
General petitioned for review, implicitly asserting the April 17, 2001 resentencing
was correct. We granted review, and now reverse the decision of the Court of
Appeal.
II. ANALYSIS

A. Section 2900.1
Our analysis begins with section 2900.1: “Where a [petitioner] has served
any portion of his sentence under a commitment based upon a judgment which
judgment is subsequently 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.” No case

2
The April 17, 2001, abstract of judgment states petitioner’s custody
commenced on May 19, 1995, although it appears her custody actually
commenced on February 11, 1995. The abstract of judgment’s custody
calculations, however, reflected the number of days served (515) since February
11.
3

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interpreting section 2900.1 has squarely addressed whether the “time” that “shall
be credited” under the statute is presentence or postsentence.
In In re James (1952) 38 Cal.2d 302 (James), the petitioner pleaded guilty
in December 1944 to first degree murder and was sentenced to life imprisonment.
(Id. at p. 308.) In January 1952, we determined the plea had been invalid, and
reversed the conviction. (Id. at p. 313.) We explained that if the People obtained
a conviction for manslaughter on retrial (having apparently agreed not to retry
James for murder), he would be entitled to credit for the more than seven years of
actual confinement. Furthermore, because we implicitly deemed this confinement
postsentence, rather than characterizing it as presentence, we noted James would
be eligible for conduct credit pursuant to the postsentence credit statute. (Id. at p.
314.)3 We also declined to compute James’s prereversal credits in accordance
with his prereversal status as a life prisoner, which would have rendered him
ineligible to accrue credits against a fixed term. (See In re Bentley (1974) 43
Cal.App.3d 988, 995.)
Since
James did not expressly analyze the question, its result does not
control our decision. Nonetheless, the literal terms of the relevant statutes appear
in accord with the result in James. Section 4019, subdivision (a)(4), which
petitioner contends should apply, applies to someone “confined in a county jail . . .
following arrest and prior to the imposition of sentence for a felony conviction.”

3
The extant credit scheme authorized conduct credits of up to five days per
month for county jail inmates (Stats. 1941, ch. 106, § 15, pp. 1122-1123 [adding
§ 4019]), whereas state prisoners could earn two months of conduct credit per year
for the first two years of confinement, four months per year for the next two years,
and five months per year thereafter. (Stats. 1941, ch. 106, § 15, pp. 1105-1106
[adding § 2920].) These statutes were repealed and replaced with more generous
conduct credit accrual provisions with the advent of determinate sentencing. (See
Stats. 1976, ch. 286, §§ 3, 4, pp. 595-596; Stats. 1977, ch. 165, §§ 36, 37, p. 661.)
4

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By contrast, section 2933, subdivision (a), applies to “persons convicted of a crime
and sentenced to state prison.” Phase II occurred after petitioner was convicted of
a crime, and that confinement was served in state prison, not a local jail.
Nevertheless, petitioner offers several arguments contending the time she served
during phase II should be characterized as presentence pursuant to section 4019.4
Although petitioner’s arguments have some superficial appeal, we find them
ultimately unpersuasive.

B. Postsentence Status is Not a “Credit Disability”
Since
James, the Legislature has instituted determinate sentencing and
created a complex array of presentence and postsentence credit schemes to serve
various functions. As we observed in Buckhalter, this complexity “ ‘ “is likely to
produce some incongruous results and arguable unfairness when compared to a
theoretical state of perfect and equal justice. [Because] there is no simple or
universal formula to solve all presentence credit issues, our aim [must be] to
provide . . . a construction [of the statutory scheme] which is faithful to its
language, which produces fair and reasonable results in a majority of cases, and
which can be readily understood and applied by trial courts.” ’ ” (Buckhalter,
supra, 26 Cal.4th at p. 29, quoting People v. Bruner (1995) 9 Cal.4th 1178, 1195,
quoting In re Joyner (1989) 48 Cal.3d 487, 495.)
Petitioner contends she should not be subject to what she describes as the
“credit disability” of postsentence status in light of the subsequent reversal.
Petitioner’s argument focuses on the disadvantage (through reduced credit) that
she suffers by having her phase II time deemed postsentence time. It is not self-

4
The parties’ dispute concerns phase II time only; we therefore need not
express any opinion as to the proper characterization of phase III time.
5

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evident, however, that postsentence status is an inherent disability. Whether a
petitioner fares better “presentence” or “postsentence” will vary, depending on the
nature of the commitment offense and the petitioner’s history. A nonviolent
offender may receive 50 percent credit for her presentence confinement. (§ 4019.)
If she has no prior strikes, she may earn 100 percent credit postsentence (one day
of conduct credit for each day actually served) (§ 2933, subd. (a)), whereas a
recidivist with a prior strike receives a maximum of 20 percent credit postsentence
(§§ 667, subd. (c)(5); 1170.12, subd. (a)(5)), and an offender with two prior strikes
is denied any postsentence conduct credit. (In re Cervera (2001) 24 Cal.4th 1073,
1076.)5 Thus, the negative consequences of postsentence status are linked to
petitioner’s recidivist status.6 If petitioner had no prior strikes, she would fare
better with postsentence status and would probably object if her reversal prompted
a recharacterization of her prison custody as presentence time, limiting her
conduct credit to 50 percent of her actual custody time.
As we observed in Buckhalter, “the pre- and postsentence credit systems
serve disparate goals and target persons who are not similarly situated. The
presentence credit scheme, section 4019, focuses primarily on encouraging
minimal cooperation and good behavior by persons temporarily detained in local
custody before they are convicted, sentenced, and committed on felony charges.

5
Some individuals accrue conduct credit at the same rate for both their
presentence and postsentence custody. Violent felons receive the same 15 percent
credit (§ 2933.1, subd. (a)), and convicted murderers receive no credit at all
(§ 2933.2, subd. (a)).
6
Although a pretrial detainee is presumed innocent until proven guilty, this
does not, as shown above, necessarily entitle a petitioner to more favorable credit
provisions. In any event, petitioner was convicted on December 11, 1995, and
thus eight of the seventeen months of presentence custody elapsed after her
conviction.
6

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By contrast, the worktime credit scheme for persons serving prison terms
emphasizes penological considerations, including the extent to which certain
classes of prisoners, but not others, deserve or might benefit from incentives to
shorten their terms through participation in rehabilitative work, education, and
training programs . . . .” (Buckhalter, supra, 26 Cal.4th at p. 36.) These
considerations have shaped the distribution of postsentence credit: The
Legislature has determined that offenders with no prior strikes are the most
amenable to rehabilitation, and they thus earn the most credits. Offenders with
one prior strike receive reduced postsentence credit, and those with two prior
strikes, considered the least amenable to rehabilitation, receive none at all.
The Legislature has thus enacted the current scheme to ensure a petitioner’s
credit accrual is commensurate with her status. This may produce occasional
incongruities. For example, granting more credits to postsentence inmates may
inadvertently reward offenders who post bail or plead guilty quickly (see, e.g., In
re Cleaver (1984) 158 Cal.App.3d 770, 773-775), whereas favoring presentence
inmates may similarly reward offenders who do not post bail or who go to trial
(People v. Applin (1995) 40 Cal.App.4th 404, 408, 411). These occasional
disparities have not been fatal.

C. Petitioner is Not Entitled to the Same Credits as an

Inmate Awaiting Trial
Petitioner contends that during phase II she was similarly situated to a
petitioner who had not yet gone to trial. She asserts that she should be no worse
off for having suffered a later reversed conviction than would be a hypothetical
petitioner who simply had her trial delayed for a comparable period of time. She
compares herself with pretrial detainees, and argues she should receive the same
two-for-four conduct credits.
7

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A pretrial detainee is not similarly situated to a state prison inmate.
(Buckhalter, supra, 26 Cal.4th at p. 36; People v. Caddick (1984) 160 Cal.App.3d
46, 53.) “Pretrial detainee-felons are presumptively innocent and therefore not in
need of rehabilitation; prison inmates are conclusively guilty and presumptively in
need of rehabilitation. In many cases, the pretrial detainee may make bail at any
time, thereby interfering with any continual work or education program. . . .
Pretrial detainees have court appearances; they consult with their attorneys and
other experts their cases may require. This makes continual work rehabilitation or
education [programming] impractical; obviously such interruptions are not a
concern for prison inmates. Moreover, the Legislature has not declared its intent
to achieve self-sufficiency in the county jails. While the foregoing distinctions [do
not exhaust] the differences between the two classes, they are sufficient to
demonstrate that the classes are not similarly situated.” (Caddick, at p. 53, fn.
omitted.) Accordingly, “the terms prison inmates and pretrial detainees are more
than labels which define the difference between persons who have been convicted
of a felony and sentenced and those who have simply been charged with [a]
felony.” (Ibid., fn. 3.) These contrasting functions of confinement warrant the
treatment of petitioner’s phase II custody as postsentence.
Furthermore, petitioner’s proposal to recharacterize her phase II
confinement as presentence time would arguably create an equal protection
problem even worse than that to which petitioner objects. Suppose a jury convicts
two defendants, each of whom has a prior strike, of the same robbery. If there are
no errors with A’s trial, his first five years of custody will yield A one year of
postsentence conduct credit. (§§ 667, subd. (c)(5); 1170.12, subd. (a)(5).) By
contrast, if on direct appeal or habeas corpus review a court finds the trial court
improperly denied B’s motion for self-representation, petitioner’s theory would
8

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grant B two and one-half years of credit (§ 4019), even though the exact same
evidence was presented against each codefendant.7

D. Petitioner’s Credits are Not Based on an Incorrect

Judgment

Finally, petitioner contends her credit accrual should not be based on an
incorrect initial judgment, and should be corrected to apply retroactively to her
phase II confinement. But her subsequent plea confirms that her initial conviction,
although procedurally invalid, was not without legal basis. On the contrary, she
pleaded guilty to the charged offense, and thus does not warrant disparate
treatment from a petitioner who initially received an error-free judgment.
Petitioner objects to characterizing her phase II custody as postsentence
“retroactively,” based on her subsequent guilty plea. But her entire claim depends
on our willingness to recharacterize her phase II custody retroactively, i.e., after
her reversal. We agree that petitioner’s phase II time may be recharacterized. Our
recharacterization analysis, however, does not cease with her reversal, but also
includes her eventual reconviction.
Petitioner derives some benefit, however, from our recharacterization. She
was sentenced initially as a third striker, which would have rendered her ineligible
to earn any conduct credits, as in James, supra, 38 Cal.2d 302. She ultimately
pleaded guilty as a second striker, eligible to earn up to 20 percent credit. Because

7
We further note that our hypothetical is more likely to create great
disparities than petitioner’s. Few defendants will spend several years in pretrial
custody. Contrariwise, prisoners often obtain reversal years after their initial
conviction.
9

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we follow petitioner’s ultimate phase IV status, we conclude she is entitled to
receive up to 20 percent credit for her phase II confinement.8
CONCLUSION
It is petitioner’s ultimate phase IV status as a convicted second striker, not
her unresolved phase III status as presentence petitioner, nor her initial phase II
status as a convicted third striker, that must control the determination of her phase
II credits. Petitioner pleaded guilty as having one prior strike, and she thus is
entitled to a maximum of 20 percent conduct credits for her phase II confinement.
We therefore reverse the judgment of the Court of Appeal, remanding with
instructions to sentence petitioner in accordance with the April 17, 2001
sentencing. The court should clarify the date on which petitioner’s custody
commenced.
BROWN, J.
WE CONCUR:

GEORGE,
C.J.
BAXTER,
J.
CHIN,
J.
MORENO,
J.

8
Neither the People nor the petitioner assert the initial sentencing of
petitioner as a “third striker” should control her credit accrual for that period. If
petitioner were denied all conduct credit due to the initial conviction, it could
create an equal protection problem against a hypothetical petitioner who initially
pleaded guilty to having one prior strike and thus received 20 percent conduct
credits for her entire confinement.
10

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DISSENTING OPINION BY KENNARD, J.

I dissent.
Petitioner Pamela C. Martinez pleaded guilty to the crime of petty theft
(Pen. Code, §§ 485, 488).1 Because of her prior convictions, the offense was
treated as a felony (see § 666), and she was sentenced to state prison. After
spending more than six and a half years in custody for this petty theft, petitioner
was released from prison to begin rebuilding her life. Because the majority
concludes that she has not served enough time, presumably petitioner will now be
taken into custody and returned to prison.
The issue before this court is the correct interpretation and application of
certain provisions of the California Penal Code governing credits that a detainee or
inmate may earn for good behavior and participation in qualifying work programs
(collectively referred to as conduct credits) while in custody. These credits are
applied against a penal sentence to shorten its length. The Penal Code sets several
different rates at which these conduct credits may be earned, depending on the
inmate’s crime, criminal record, and sentence and also, of particular importance
here, on whether the custody time during which the credits were earned occurred
before or after the pronouncement of sentence. Briefly stated, the majority
concludes that time spent in prison before pronouncement of a sentence should be
treated, in the eyes of the law, as having occurred after that sentence. I disagree.
In this instance, as in most instances, the simple and obvious answer is the correct
one: Presentence means before the sentence, and postsentence means after the

1
Further statutory references are to the Penal Code.
1

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sentence. Therefore, in my view, the time petitioner spent in prison before
pronouncement of sentence is presentence time, not postsentence time, for
purposes of computing conduct credits.
Only a few facts need be stated. In February 1995, petitioner was arrested.
In July 1996, after a jury trial that resulted in a conviction for petty theft, petitioner
was sentenced to prison and immediately began to serve that sentence. Petitioner
challenged the validity of her conviction by petitioning for a writ of habeas corpus,
and, in July 1999, the Court of Appeal set aside petitioner’s conviction and
ordered a new trial. On August 19, 1999, petitioner pleaded guilty to petty theft
with a prior conviction, and the court sentenced her to state prison for a term of
nine years.
An issue then arose about petitioner’s entitlement to conduct credits for the
three years she spent in prison from July 1996 and July 1999 under the invalid
judgment. Petitioner’s entitlement to some credit for this period was beyond
dispute. Section 2900.1 declares that time spent serving a sentence under a
judgment later declared invalid “shall be credited upon any subsequent sentence
[the defendant] may receive upon a new commitment for the same criminal act or
acts.” Likewise, it was not disputed that she had earned conduct credits by her
behavior in prison. Rather, the issue was the rate at which the conduct credits
accrued. The superior court concluded that the credits should accrue at the
postsentence rate of 20 percent under sections 667, subdivision (c)(5), and
1170.12, subdivision (a)(5). The Court of Appeal disagreed, concluding instead
that the credits accrued at the presentence rate of 50 percent under sections 2900.5
and 4019.
The majority agrees with the superior court that the three years petitioner
spent in prison before July 1999 is postsentence time for purpose of calculating
2

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conduct credits against her August 1999 sentence. How does the majority arrive at
a conclusion so implausible on its face?
The majority begins with a 1952 decision of this court in a habeas corpus
proceeding setting aside a first degree murder conviction: In re James (1952) 38
Cal.2d 302. At the end of the opinion in James, after determining that the
petitioner’s conviction was invalid, this court noted that the petitioner was “still
subject to trial,” and that if he was convicted after a new trial “his confinement
based upon the invalid 1944 judgment, together with any time credits for good
conduct earned thereon (Pen. Code, § 2920), would be credited upon the new
sentence for the same criminal act. (Pen. Code, § 2900.1.)” (In re James, supra,
at p. 314.)
Although conceding that James “did not expressly analyze the question”
and therefore does not control here, the majority professes to find significance in
this court’s reference, in the passage quoted above, to section 2920, which the
majority triumphantly states is “the postsentence credit statute.” (Maj. opn., ante,
at p. 4, italics in original.) What the majority does not point out is that in 1952,
when this court decided James, there was no presentence conduct credit statute in
existence. The Legislature enacted the first presentence credit statute in 1971
(Stats. 1971, ch. 1732, § 2, p. 3686), but even then the Penal Code made no
provision for presentence conduct credits for persons convicted of felonies. Such
credits were first authorized by this court’s decision in People v. Sage (1980) 26
Cal.3d 498, later codified in section 4019, subdivision (a)(4). Thus, unlike this
case, James was not a situation in which this court was required to choose between
presentence and postsentence conduct credit statutes. Rather, in referring to
section 2920, this court was citing the only conduct credit statute then in existence
for persons convicted of felonies and sentenced to state prison. For this reason, In
re James, supra, 38 Cal.2d 302, is no help in making the choice this court faces
3

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today between presentence and postsentence conduct credit statutes to determine
the rate at which petitioner’s conduct credits accrued for the time she spent in
prison before the valid conviction and sentence.
The majority next asserts that “the literal terms of the relevant statutes
appear in accord with the result in James.” (Maj. opn., ante, at p. 4.) The majority
explains its reasoning this way: “Section 4019, subdivision (a)(4), which
petitioner contends should apply, applies to someone ‘confined in a county jail . . .
following arrest and prior to the imposition of sentence for a felony conviction.’
By contrast, section 2933, subdivision (a), applies to ‘persons convicted of a crime
and sentenced to state prison.’ [The time in question here] occurred after
petitioner was convicted of a crime, and that confinement was served in state
prison, not a local jail.” (Maj. opn., ante, at pp. 4-5.) I do not agree. The terms of
the presentence credit statutes, as construed by the courts of this state, do indeed
authorize credit for the prison custody time at issue here.
As relevant here, section 2900.5, subdivision (a), states: “In all felony . . .
convictions . . . when the defendant has been in custody, including, but not limited
to, any time spent in a jail, camp, work furlough facility, halfway house,
rehabilitation facility, hospital, prison, juvenile detention facility, or similar
residential institution, all days of custody of the defendant, including days served
as a condition of probation in compliance with a court order, and including days
credited to the period of confinement pursuant to Section 4019, shall be credited
upon his or her term of imprisonment . . . .” (Italics added.) Presentence credits
4

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are awarded under section 2900.5 “regardless of the particular locale, institution,
facility or environment of [the defendant’s] incarceration.” (In re Watson (1977)
19 Cal.3d 646, 651-652.) Under section 2900.5, in August 1999, when petitioner
received a nine-year prison sentence for petty theft, she was entitled to credit,
including conduct credit under section 4019, for all previous custody time
attributable to the same act of petty theft, including the time in state prison under
the earlier invalid judgment.
Section 4019, subdivision (a)(4), authorizes presentence conduct credit at
the 50 percent rate for time spent “confined in a county jail, industrial farm, or
road camp, or a city jail, industrial farm, or road camp following arrest and prior to
the imposition of sentence for a felony conviction.” Although section 4019 does
not mention state prisons, it is settled that presentence credit may be awarded
under section 4019 for time spent in state facilities, including prisons, before
pronouncement of sentence for a felony conviction. (See People v. Buckhalter
(2001) 26 Cal.4th 20, 30, fn. 6; In re Anderson (1982) 136 Cal.App.3d 472, 476.)
Thus, the wording of the presentence credit statutes, sections 2900.5 and 4019,
provides the majority no basis to treat petitioner’s time in state prison before she
was validly convicted and sentenced as anything other than presentence time.
The majority argues that petitioner’s state prison time must be characterized
as postsentence time because “ ‘prison inmates are conclusively guilty and
presumptively in need of rehabilitation.’ ” (Maj. opn., ante, at p. 8, quoting
People v. Caddick (1984) 160 Cal.App.3d 46, 53.) This is a fair statement as
applied to prison inmates who have been validly convicted, but an invalid
conviction does not conclusively determine guilt nor does it establish a
presumptive need of rehabilitation. Until a valid conviction is obtained, all
persons accused of crime are equally entitled to a presumption of innocence and
thus similarly situated for purposes of credit statutes.
5

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The majority suggests that characterizing petitioner’s presentence state
prison time as presentence time for purposes of computing conduct credits “would
arguably create an equal protection problem” because she would have more
presentence time, and thus more conduct credits, than a defendant whose initial
conviction and sentence for the very same offense were not invalid. (Maj. opn.,
ante, at p. 8.) Yet, as the majority elsewhere acknowledges (id. at p. 7), these sorts
of “incongruities” are inevitable and have not been thought sufficient to invalidate
the entire credit scheme. (In re Joyner (1989) 48 Cal.3d 487, 495.) Defendants
convicted of the very same crime may have presentence custody times of widely
differing length. One defendant may promptly plead guilty and have very little
presentence time. Another may be validly convicted after jury trial and have
significantly more presentence time. A third may be validly convicted only after
two or three trials because the earlier trials terminated by the granting of a motion
for mistrial, or because the trial court granted a motion for a new trial, or because
the initial conviction was reversed on appeal. A fourth defendant may be validly
convicted after one or more jury trials, be granted probation on conditions
including substantial jail time, and later have probation revoked and a state prison
sentence imposed. So long as the law sets different rates for accrual of
presentence and postsentence custody credits, these defendants, all guilty of the
same crime and sentenced to the same term, but with widely varying periods of
pretrial custody, will have significantly different overall times of actual
confinement.
I agree with the Court of Appeal here that in calculating conduct credits
against petitioner’s nine-year state prison sentence pronounced in August 1999 for
the crime of petty theft, all earlier periods of custody attributable to that petty
theft, including the three years petitioner spent in state prison under an invalid
6

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conviction for the same crime, is presentence time. Accordingly, I would affirm
the Court of Appeal’s judgment.
KENNARD,
J.
I CONCUR:

WERDEGAR, J.
7

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Martinez
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 94 Cal.App.4th 191
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S103581
Date Filed: April 3, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Elizabeth A. Courtenay, under appointment by the Supreme Court, for Petitioner Pamela C. Martinez.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Paul D. Gifford,
Assistant Attorney General, Susan Duncan Lee, Matthew D. Mandelbaum and Diana Sokoloff, Deputy
Attorneys General, for Respondent the People.

1

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Elizabeth A. Courtenay
California Appellate Project
520 S. Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300

Diana Sokoloff
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5716

2

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Opinion Information

Date:	Docket Number:
Thu, 04/03/2003	S103581

Disposition
Apr 3 2003	Opinion: Reversed

Dockets
Jan 14 2002	Petition for review filed   by AG-SF for Respondent People
Jan 14 2002	Record requested
Jan 15 2002	Received Court of Appeal record   one envelope
Jan 24 2002	Answer to petition for review filed   counsel for petnr. Pamela Martinez
Feb 20 2002	Petition for Review Granted (criminal case)   Votes: George C.J., Kennard, Baxter, Werdegar, Chin, Brown & Moreno JJ.
Mar 18 2002	Counsel appointment order filed   California Appellate Project is hereby appointed to represent appellate on his appeal now pending in this court.
Mar 22 2002	Opening brief on the merits filed   by counsel (AG) for Respondent (People)
Mar 25 2002	Received:   letter from Attorney General's office regarding the correct use of the word 'Defendant" instead of " Respondent" in argument section, pages 4-12. Received corrected briefs.
Apr 10 2002	Request for extension of time filed   by counsel for petitioner (P. Martinez) requesting extension to May 22, 2002 to file petitioner's brief on the merits.
Apr 11 2002	Extension of time granted   Petitioner's time to serve and file the answer brief on the merits is extended to and including May 22, 2002.
May 8 2002	Answer brief on the merits filed   by counsel for petitioner (P. Martinez)
May 21 2002	Filed:   by counsel for petitioner Errata to Answer Brief on the Merits.
May 28 2002	Reply brief filed (case fully briefed)   by counsel (AG) for respondent (People)
Nov 27 2002	Case ordered on calendar   1-7-03, 1:30pm, S.F.
Jan 7 2003	Cause argued and submitted
Apr 3 2003	Opinion filed: Judgment reversed   and remanded with instructions. OPINION BY: Brown, J. -- joined by George, C. J., Baxter, Chin, Moreno, JJ. DISSENTING OPINION BY: Kennard, J. -- joined by Werdegar, J.
Apr 16 2003	Rehearing petition filed   counsel for petitioner Pamela Martinez
Apr 18 2003	Time extended to consider modification or rehearing   to and including July 3, 2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 25 2003	Received:   from Atty. Paul Ward (non-party) Request to Grant Rehearing on Court's Own Motion.
Apr 30 2003	Received:   Telephone call from Chuck Nicholson that he is sending by overnight package a request for modification of the opinion.
May 1 2003	Received:   from District Attorney, County of San Diego (non-party) Request for rehearing or modification.
Jun 18 2003	Rehearing denied   Opinion modified Kennard, J., and Werdegar, J., are of the opinion the petition for rehearing should be granted.
Jun 18 2003	Opinion modified - no change in judgment
Jun 18 2003	Remittitur issued (criminal case)
Jun 20 2003	Opinion modified - no change in judgment   Order entered nunc pro tunc as of June 18, 2003
Jun 20 2003	Received:   from Dist. Atty San Diego Request for further modification.
Jun 23 2003	Received:   receipt for remittitur from CA 2/7
Jul 23 2003	Note:   sent case record (one volume) to c/a
Jul 25 2003	Received Court of Appeal record   from SF for dca clerk (one doghouse)
Jun 23 2004	Compensation awarded counsel   Atty Steiner

Briefs
Mar 22 2002	Opening brief on the merits filed
May 8 2002	Answer brief on the merits filed
May 28 2002	Reply brief filed (case fully briefed)

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