Clemency Urged for Woman Who Faced Life Term in $30 Theft State Supreme Court Votes 5-1 to Recommend That Governor Commute Sentence

Thursday, April 29, 2004

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Clemency Urged for Woman Who Faced Life Term in $30 Theft
State Supreme Court Votes 5-1 to Recommend That Governor Commute Sentence

By KENNETH OFGANG, Staff Writer/Appellate Courts

A Vista woman—who once faced life imprisonment for stealing a $30 toolbox, had her third-strike sentence overturned on appeal, and was released following a plea bargain only to be ordered to return to prison for 65 days because of a ruling that her term had been miscalculated—should be granted clemency, the state high court said yesterday.

California Supreme Court justices voted 5-1 to recommend that Gov. Arnold Schwarzenegger commute Pamela C. Martinez’s sentence to time served. Martinez, who earlier won a delay in her March 30 return date, should be granted immediate parole, Chief Justice Ronald M. George said in a letter to the governor.

George and Justices Marvin Baxter, Ming Chin, Joyce L. Kennard, and Carlos Moreno voted to recommend cutting the sentence. Justice Janice Rogers Brown voted against, and Justice Kathryn M. Werdegar was absent from the weekly conference and did not vote.

The high court’s action was a successful culmination of an effort by friends and supporters of Martinez, who won the backing of Assemblywoman Jackie Goldberg, D-Los Angeles, who pled the defendant’s case to the governor.

Rarely Invoked Provision

The Board of Prison Terms recommended the commutation, and Schwarzenegger submitted the matter to the Supreme Court. The governor has the final word on pardons and commutations, but a rarely invoked provision of the state Constitution requires a recommendation from the high court before a thrice-convicted felon receives clemency from the chief executive.

Martinez was convicted of recidivist petty theft in 1995 after taking a toolbox from the home of a Rolling Hills resident whom she visited in order to give an estimate for some landscaping work. She later said she was high on valium and alcohol at the time.

She was sentenced to 25 years to life as a third-strike offender. But this district’s Court of Appeal ruled that she had received ineffective assistance of counsel and sent the case back for retrial.

On remand, Martinez—whose priors were both robberies—was sentenced to nine years as a second-strike offender pursuant to a plea bargain. She was initially given a release date early in 2001, but confusion as to the application of the complex rules for determining sentence credit resulted in her spending eight more months behind bars before the Court of Appeal granted a writ of habeas corpus.

Martinez was released, but the attorney general asked the state Supreme Court for review, which was granted.

Earlier Court Ruling

The justices ruled 5-2 for the prosecution—Brown wrote the opinion, Kennard and Werdegar dissented—in In re Martinez (2001) 30 Cal. 4th 29. For purposes of sentencing credit, Brown wrote, Martinez was—contrary to the Court of Appeal’s view—a sentenced prisoner, rather than a pretrial detainee, during the three years between her original sentencing and the reversal of her conviction.

Since sentencing credits are more liberal for detainees than sentenced prisoners, Martinez’s term was subject to recalculation, resulting in the determination that she had served 65 days less than required.

Her co-workers at a Home Depot store in North San Diego County campaigned on her behalf, and Goldberg—who backs an initiative, now awaiting signature verification, that would relax the Three-Strikes law—took up the cause.

In submitting the clemency petition to the high court, Schwarzenegger said it was pointless to send Martinez back to prison because she has been working and has not been in trouble with the law since her release. Attorney General Bill Lockyer told the Supreme Court he did not oppose clemency.

In other action at the conference, the justices:

•Set oral arguments May 25 in San Francisco on the question of whether San Francisco Mayor Gavin Newsom had the authority to issue same-sex marriage licenses.

The court granted review in two cases, brought by Lockyer and the Alliance Defense Fund—a conservative group opposing gay marriage—to determine whether city officials may take actions prohibited by state law, based on a belief that the law is unconstitutional but in the absence of a court ruling to that effect.

The justices earlier this month asked the parties to brief two additional issues—whether the roughly 4,000 marriages performed before the court imposed a halt pending its review should be nullified, and if so, whether the fees of $82 per license paid by the couples must be refunded.

The cases are Lockyer v. San Francisco, S122923, and Lewis v. Alfaro, S122865.

•Agreed to decide whether, under Apprendi v. New Jersey (2000) 530 U.S. 466, a criminal defendant has a federal constitutional right to a jury trial on factual issues relating to the circumstances and conduct underlying a prior conviction used to enhance punishment. The First District Court of Appeal’s Div. Five answered that question in the affirmative in People v. McGee, A097749.