P. v. Contreras

1
Filed 3/5/21 P. v. Contreras CA4/2
Opinion following rehearing; See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE DANIEL CONTRERAS,
Defendant and Appellant.
E074711
(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.

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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.1 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
1 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.].)

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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).
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

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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

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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.

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1
[People v. Contreras, E074711]
I respectfully dissent. The majority concludes there is no reason to conduct a
Wende2 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.)
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.
2 People v. Wende (1979) 25 Cal.3d 436 (Wende).

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