Opinion
E076558
06-04-2021
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. INF055962 John D. Molloy, Judge. Affirmed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RAMIREZ P. J.
Defendant and appellant Noel Santiago Garza, Jr. appeals from an order of the Riverside County Superior Court denying his petition for resentencing made pursuant to Penal Code section 1170.95. We affirm.
All further statutory references are to the Penal Code.
BACKGROUND
Defendant was a member of the Barrio Dream Home (BDH) gang that became involved in a turf war with a rival gang, At Large (AL), over a park located in the heart of BDH territory. In June 2006, BDH member Jose was at the park when he became involved in a dispute with an AL member that ended up in more than one physical altercation, with Jose on the losing end. Jose then called defendant, who regularly kept Jose's gun for him, and asked defendant to bring the loaded gun to the park. Defendant drove to the park and gave the gun to Jose, who then shot and killed the AL member.
A jury convicted defendant of first degree murder (§ 187, subd. (a)) committed for the benefit of a street gang (§ 186.22, subd. (b)), during which a principal discharged a firearm causing death (§ 12022.53, subd. (e)). It also found defendant was an active participant in a criminal street gang. (§ 186.22, subd. (a).) In August 2009, the court sentenced defendant to a total term of 50 years to life. Defendant appealed and this court affirmed the judgment. (People v. Flores (Apr. 6, 2011, E049218) [nonpub. opn.].)
In 2018, the Legislature enacted section 1170.95 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019), a provision that authorizes a person convicted of felony murder or murder under a natural and probable consequences theory to file with the sentencing court a petition to vacate the conviction and be resentenced.
On September 4, 2020, defendant filed a section 1170.95 petition for resentencing. Defendant was not present but was represented by counsel when the petition came before the court on February 5, 2021. The People noted the absence of jury instructions on the subjects of felony murder or a theory of natural and probable consequences. They also pointed out this court's rejection of defendant's argument on appeal from the judgment of insufficiency of the evidence to establish deliberation or premeditation. The court denied the petition. Defendant appealed, and this court appointed counsel to represent him.
DISCUSSION
Defendant's counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S 738, setting forth statements of the case and facts. Counsel suggests the following potentially arguable issue concerning the merits of defendant's petition: whether the trial court erred when it denied defendant's petition for resentencing? Counsel also raises the procedural questions of whether and to what extent defendant is entitled to an independent review by this court of the record on appeal.
When, in an indigent defendant's first appeal of right, appointed appellate counsel files an opening brief that does not present an arguable issue, it is well settled that the appellate court must offer the defendant an opportunity to submit a personal supplemental brief and to review the entire record whether or not the defendant files a brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)
We acknowledge People v. Cole (2020) 52 Cal.App.5th 1023, 1032, review granted October 14, 2020, S264278, held the constitutional bases for Wende procedures apply only to a defendant's direct appeal from the judgment. We also recognize that we have discretion to exercise our inherent supervisory powers to apply Wende procedures to appeals from denials of postconviction relief in which appointed appellate counsel files a no-issues brief. Accordingly, appellate courts have traditionally afforded defendants an opportunity to personally file a supplemental brief when appointed counsel has submitted a no-issues brief in a postjudgment appeal. (People v. Scott (2020) 58 Cal.App.5th 1127, 1131 (Scott), review granted Mar. 17, 2021, S266853.)
Appellate courts are divided, however, with respect to whether we should exercise our discretion to conduct an independent review of the record if a defendant does not respond to an invitation to file a supplemental brief. (E.g., Cole, supra, 52 Cal.App.5th at pp. 1038-1039 [Second Dist., Div. Two, no independent review of record when no supplemental brief filed, dismissed the appeal as abandoned]; People v. Flores (2020) 54 Cal.App.5th 266, 269, 273-274 [Fourth Dist., Div. Three conducted independent review of record even though defendant did not file a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the situation in which defendant does not file a supplemental brief. In Scott, one panel concluded there is no reason to conduct an independent review of the record or to issue an opinion in such a case and dismissed the appeal as abandoned. (Scott, supra, 58 Cal.App.5th at pp. 1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras (2021) 61 Cal.App.5th 108.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court concluded the interests of justice call for independent review of the record in postjudgment no-issue appeals even if the defendant has not filed a supplemental brief. (Id. at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54 Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a summary denial of a section 1170.95 petition, reviewing court 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 [court of appeal has the discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides indigent defendants an additional layer of due process while consuming comparatively little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
I concur: McKINSTER J.
RAPHAEL, J., Dissenting.
I would dismiss by order this uncontested appeal and therefore respectfully dissent. (People v. Scott (2020) 58 Cal.App.5th 1127.)
It is immediately obvious that defendant and appellant Noel Santiago Garza, Jr., does not qualify for relief pursuant to Penal Code section 1170.95 (section 1170.95), which applies to defendants convicted of murder on a theory where they intended only some other crime. Garza was convicted of murder based on directly aiding and abetting a fellow gang member by delivering him a loaded gun with which his cohort then shot the victim. On Garza's direct appeal in case number E049218, we stated that consistent with the jury instructions at his trial, the prosecution argued that Garza “intended to aid and abet [his cohort] in committing” first degree murder, and we upheld the jury's findings based on sufficient evidence that “Garza knew exactly what [his cohort] was about to do.” (People v. Flores (April 6, 2011, E049218) [nonpub. opn.])
Defendant and his counsel raise no issues. Rather than dismiss this uncontested appeal, however, the majority issues an opinion. But the entire substance of its three-page discussion is to argue that its opinion should exist. (Maj. opn., ante, at pp. 3-5.) The majority explains that it respectfully disagrees with the approach of dismissing uncontested cases. Instead, it promises it will provide an “additional layer of due process” with its review and opinion. (Maj. opn., ante, at p. 5.)
After that build-up, the entire extra layer of due process comprises one vague sentence: the majority states that it has “independently reviewed the record for potential error” and can “find no arguable issues.” (Maj. opn., ante, at p. 5.)
What was the majority looking for in its independent record review? Garza is obviously ineligible for section 1170.95 relief, but the majority does not even explain that, nor articulate why it is affirming the order denying his petition.
No one benefits from reading the majority's analysis, except for those that wish to grasp the vacuity of this type of opinion. (Cf. People v. Delgadillo, review granted Feb. 17, 2021, S266305 [granting review to determine procedures when counsel determines that an appeal from postconviction relief lacks arguable merit].) More productive than the majority's content-free analysis-garbed in the same manner as judicial opinions that provide reasoning-would be a simple one-sentence unpublished order dismissing the abandoned appeal and stating that Garza is ineligible for section 1170.95 relief because he was convicted of directly aiding and abetting a murder.