Opinion
E074711
03-05-2021
THE PEOPLE, Plaintiff and Respondent, v. JOE DANIEL CONTRERAS, Defendant and Appellant.
Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR27580) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Dismissed. Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
Over 30 years ago, a jury convicted Joe Daniel Contreras of two counts of first degree murder and one count of attempted murder. Division One of this court reduced one of the first degree murder convictions to second degree murder, and reduced the attempted murder conviction to assault with a deadly weapon. When he appealed again, this court affirmed that sentence and conviction. In July 2019, Contreras filed a petition for resentencing under Penal Code section 1170.95 seeking resentencing. The trial court dismissed the petition, and Contreras appealed. On appeal, Contreras asked us to conduct an independent review of the record. We declined to do so and dismissed the appeal as abandoned.
After our initial dismissal, Contreras filed a petition for rehearing asking us to consider whether he is entitled to our independent review of the record. On rehearing, we find Contreras is not entitled to independent review of the record, decline to conduct such an independent review, and dismiss.
I
FACTS
On May 10, 1987, Contreras and another man shot and killed two people and injured a third. At trial the jury was instructed regarding direct aiding and abetting, but not on either felony murder or the natural and probable consequences doctrine. The jury convicted Contreras of two counts of first degree murder (Pen. Code, § 187, unlabeled statutory citations refer to this code), and one count of attempted murder (§§ 664, 187).
Because this appeal concerns only Contreras's entitlement to independent review, we summarize the facts from Division One's opinion in the appeal of his conviction. (People v. Contreras (Oct. 26, 1990, D012072 [nonpub. opn.].)
On appeal from his conviction, Division One of this court reduced one of the first degree murder convictions to second degree murder, and reduced the attempted murder conviction to assault with a deadly weapon. After resentencing, Contreras appealed again, and this court affirmed his sentence and conviction.
In 2019, Contreras petitioned for resentencing under then newly enacted section 1170.95. The trial court dismissed it.
Contreras appealed the trial court's denial of his petition. On Contreras's request, we appointed counsel to represent him on appeal. Counsel filed a brief declaring she found no arguably meritorious issues to appeal and asking us to conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. The majority of this panel concluded Contreras was not entitled to our independent review of the record, and that his failure to file a supplemental brief effectively abandoned his appeal. We therefore dismissed his appeal.
Contreras then filed a petition for rehearing, which we granted.
II
ANALYSIS
We granted rehearing to allow Contreras to raise any new factual or legal issue which would entitle him to independent review of the record. On rehearing, Contreras argues federal constitutional due process and equal protection guarantees, as well as California state constitutional protections, require independent review in such cases. The People argue Contreras has no federal or state constitutional right to independent appellate review of post-sentencing proceedings under section 1170.95.
These are not new arguments; other courts and another panel of this court have already considered them and embraced the People's position, as we did on initially hearing this case. (See People v. Cole (2020) 52 Cal.App.5th 1023 (Cole), review granted Oct. 14, 2020, S264278; People v. Flores (2020) 54 Cal.App.5th 266 (Flores); People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano); People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo).) These cases hold that while an appellate court has discretion to conduct an independent review of the record in any case, appellants appealing from postconviction orders are not entitled to such review. (Cole, at pp. 1038-1040; Flores, at p. 274; Serrano, at p. 503.) Contreras raises no new arguments and cites no new cases that would counsel departing from the holding in these cases.
However, among these cases there remains some disagreement about whether courts should conduct an independent appellate review anyway. The parties agree that we could use our discretionary authority to grant Contreras independent review even though he's not entitled to it. Other courts and another panel of this court have concluded that this is the appropriate approach. (Flores, supra, 54 Cal.App.5th at p. 274; see Gallo, supra, 57 Cal.App.5th at pp. 598-599.) Nevertheless, we are persuaded by the reasoning in Cole and the dissent in Gallo that exercising our discretion to independently review the record in cases such as this is not supported by the interests involved, would be a departure from our normal treatment of cases in our adversarial system, and would impose significant judicial costs without the likelihood of any gain. (Cole, supra, 52 Cal.App.5th at p. 1034; Gallo, at pp. 600-603 (dis. opn. of Menetrez, J.).)
Therefore, we agree with the People that "[b]ecause appellant's appointed appellate counsel thoroughly reviewed the record and found no arguable issues and appellant declined to submit a supplemental brief despite the opportunity to do so, this court should deem his appeal abandoned and dismiss it, without independently reviewing the record."
III
DISPOSITION
We dismiss the appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. I concur: MENETREZ
J.
I respectfully dissent. The majority concludes there is no reason to conduct a Wende review of the record in uncontested appeals from postjudgment orders, and that appellate courts in such cases should dismiss the appeal by order. (People v. Scott (2020) 58 Cal.App.5th 1127, 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Cole (2020) 52 Cal.App.5th 1023, review granted Oct. 14, 2020, S264278.)
People v. Wende (1979) 25 Cal.3d 436 (Wende). --------
I agree with another panel of this court, which recently held that in uncontested appeals from the denial of a Penal Code section 1170.95 petition, "we can and should independently review the record on appeal in the interests of justice." (People v. Gallo (2020) 57 Cal.App.5th 594, 599 (but see dis. opn. Menetrez, J.); accord People v. Flores (2020) 54 Cal.App.5th 266, 269 ["[W]hen an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interests of justice."]; see People v. Allison (2020) 55 Cal.App.5th 449, 456 ["[W]e have the discretion to review the record in the interests of justice."].) This procedure provides defendants an added layer of due process while consuming comparatively little in judicial resources. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, I have independently reviewed the record for potential error and find no arguable issues.
McKINSTER
Acting P. J.