Filed 4/29/22 P. v. Morales CA4/2 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E077928
v. (Super.Ct.No. RIF094693)
JOHN ANTHONY MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, John Anthony Morales, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied.2 After defense counsel
filed a notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
facts, a statement of the case, and identifying two potentially arguable issues:
(1) whether the superior court erred in denying defendant’s petition; and (2) whether the
denial constituted prejudicial error. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
By information filed February 6, 2001, the People charged defendant with
unauthorized possession of heroin in jail (§ 4573.6, count 1). The People additionally
alleged defendant had suffered three prior prison terms (§ 667.5, subd. (b)) and one prior
strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c).)
On June 12, 2002, defendant pled guilty to the count 1 offense. In return, the
People agreed to a sentence of three years of imprisonment, concurrent with defendant’s
sentence in another case, and moved to dismiss all priors alleged in the instant case. On
July 12, 2002, the court sentenced defendant as provided by the plea agreement and
dismissed all the prior allegations.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The court both denied and dismissed the petition with prejudice.
2 On March 16, 2020, defendant filed a form petition for resentencing alleging a
complaint, information, or indictment had been filed against him allowing the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. Defendant additionally alleged there had been a prior
determination by a court or jury that he was not a major participant and did not act with
reckless indifference to human life. Therefore, defendant maintained he was entitled to
be resentenced pursuant to section 1170.95.
At a hearing on June 26, 2020, the court denied the petition noting that defendant
did not qualify for section 1170.95 relief. On April 28, 2021, defendant filed another
petition for resentencing in this case, which was identical to the one he formerly filed
except that he also filed it in another case and alleged that he was not the actual killer.
At a hearing on May 21, 2021, the court noted, “There are no murder charges.
This petition for—there are not even attempt murder charges.” The court ruled, “He’s
not entitled to any relief under 1170.95 as a matter of law. It is a defective petition. The
petition is denied. In RIF094693, there are no murder or even homicide—attempt
homicide charges. . . . He is ineligible for any relief pursuant to 1170.95. Both of these
petitions are dismissed with prejudice.”
At another hearing on the petition on October 15, 2021, which occurred for no
reason appearing on this record, the People noted: “There is a tortured history on this
case that I think [defense counsel] can explain to you, but the punch line is [defendant]
was not convicted of murder. The petition needs to be dismissed . . . .” Defense counsel
3 responded: “Yes. [Defendant] has filed a couple petitions. They have been dismissed by
the Court. I can concede on that issue. Unfortunately, I do have to object for the record.”
The court asked of what defendant had been convicted; the People responded,
possession of narcotics in jail. The court denied the petition with prejudice. The People
noted, “I think this would be your third denial . . . .”
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We recognize that one panel of this court has held that in uncontested
appeals from postjudgment orders, there is no reason to conduct a Wende review of the
record, and such appeals should be dismissed by order. (People v. Scott (2020)
58 Cal.App.5th 1127, 1131-1132, review granted Mar. 17, 2021, S266853 (but see dis.
opn. of Miller, J.); accord People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review
granted Oct. 14, 2020, S264278 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief.”]; accord People v. Figueras (2021)
61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We respectfully disagree.
We agree with another panel of this court, which has held that in uncontested
appeals from the denial of a 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. of 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
4 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,
we have independently reviewed the record for potential error and find no arguable
issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. I concur:
RAMIREZ P. J.
5 [People v. Morales, E077928]
RAPHAEL, J., Dissenting.
Defendant and Appellant John Anthony Morales appeals from the denial of a
petition filed under Penal Code section 1170.95, a familiar statute that permits defendants
charged on certain murder theories to collaterally challenge their conviction for murder
(or for attempted murder or manslaughter).
Morales’s petition, however, challenged his conviction for violating Penal Code
section 4573.6 by possessing drugs in jail. Section 1170.95 is obviously inapplicable,
and, unsurprisingly, Morales’s attorney could raise no argument on appeal. We thus have
an uncontested appeal that is obviously without merit.
This case illustrates the futility and waste of issuing an opinion every time a post-
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Filed 4/29/22 P. v. Morales CA4/2 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, E077928
v. (Super.Ct.No. RIF094693)
JOHN ANTHONY MORALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, John Anthony Morales, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied.2 After defense counsel
filed a notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
facts, a statement of the case, and identifying two potentially arguable issues:
(1) whether the superior court erred in denying defendant’s petition; and (2) whether the
denial constituted prejudicial error. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
By information filed February 6, 2001, the People charged defendant with
unauthorized possession of heroin in jail (§ 4573.6, count 1). The People additionally
alleged defendant had suffered three prior prison terms (§ 667.5, subd. (b)) and one prior
strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c).)
On June 12, 2002, defendant pled guilty to the count 1 offense. In return, the
People agreed to a sentence of three years of imprisonment, concurrent with defendant’s
sentence in another case, and moved to dismiss all priors alleged in the instant case. On
July 12, 2002, the court sentenced defendant as provided by the plea agreement and
dismissed all the prior allegations.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 The court both denied and dismissed the petition with prejudice.
2 On March 16, 2020, defendant filed a form petition for resentencing alleging a
complaint, information, or indictment had been filed against him allowing the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. Defendant additionally alleged there had been a prior
determination by a court or jury that he was not a major participant and did not act with
reckless indifference to human life. Therefore, defendant maintained he was entitled to
be resentenced pursuant to section 1170.95.
At a hearing on June 26, 2020, the court denied the petition noting that defendant
did not qualify for section 1170.95 relief. On April 28, 2021, defendant filed another
petition for resentencing in this case, which was identical to the one he formerly filed
except that he also filed it in another case and alleged that he was not the actual killer.
At a hearing on May 21, 2021, the court noted, “There are no murder charges.
This petition for—there are not even attempt murder charges.” The court ruled, “He’s
not entitled to any relief under 1170.95 as a matter of law. It is a defective petition. The
petition is denied. In RIF094693, there are no murder or even homicide—attempt
homicide charges. . . . He is ineligible for any relief pursuant to 1170.95. Both of these
petitions are dismissed with prejudice.”
At another hearing on the petition on October 15, 2021, which occurred for no
reason appearing on this record, the People noted: “There is a tortured history on this
case that I think [defense counsel] can explain to you, but the punch line is [defendant]
was not convicted of murder. The petition needs to be dismissed . . . .” Defense counsel
3 responded: “Yes. [Defendant] has filed a couple petitions. They have been dismissed by
the Court. I can concede on that issue. Unfortunately, I do have to object for the record.”
The court asked of what defendant had been convicted; the People responded,
possession of narcotics in jail. The court denied the petition with prejudice. The People
noted, “I think this would be your third denial . . . .”
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We recognize that one panel of this court has held that in uncontested
appeals from postjudgment orders, there is no reason to conduct a Wende review of the
record, and such appeals should be dismissed by order. (People v. Scott (2020)
58 Cal.App.5th 1127, 1131-1132, review granted Mar. 17, 2021, S266853 (but see dis.
opn. of Miller, J.); accord People v. Cole (2020) 52 Cal.App.5th 1023, 1028, review
granted Oct. 14, 2020, S264278 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief.”]; accord People v. Figueras (2021)
61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We respectfully disagree.
We agree with another panel of this court, which has held that in uncontested
appeals from the denial of a 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. of 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
4 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,
we have independently reviewed the record for potential error and find no arguable
issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. I concur:
RAMIREZ P. J.
5 [People v. Morales, E077928]
RAPHAEL, J., Dissenting.
Defendant and Appellant John Anthony Morales appeals from the denial of a
petition filed under Penal Code section 1170.95, a familiar statute that permits defendants
charged on certain murder theories to collaterally challenge their conviction for murder
(or for attempted murder or manslaughter).
Morales’s petition, however, challenged his conviction for violating Penal Code
section 4573.6 by possessing drugs in jail. Section 1170.95 is obviously inapplicable,
and, unsurprisingly, Morales’s attorney could raise no argument on appeal. We thus have
an uncontested appeal that is obviously without merit.
This case illustrates the futility and waste of issuing an opinion every time a post-
conviction criminal defendant files an appeal that so lacks merit that no argument can be
mustered to support it. (See People v. Scott (2020) 58 Cal.App.5th 1127, 1134 [finding
Fourth District, Division Two issued opinions in 117 uncontested post-judgment appeals
in one year]; see also 2021 Court Statistics Report, Judicial Council of California at p. 40
[Fourth District, Division Two issued a total of 452 criminal opinions in fiscal year
2020].) When we routinely issue opinions in uncontested appeals taken from sundry
rulings, we ensure that a substantial portion of our division’s opinions will lack all
significance.
We should follow the prevalent Court of Appeal rule, articulated in a case cited
about 575 times in the last decade, and dismiss an appeal “as abandoned” when a
defendant appeals from a postconviction order but raises no issues. (People v. Serrano
1 (2012) 211 Cal.App.4th 496, 504; see People v. Cole (2020) 52 Cal.App.5th 1023, 1040
[“we dismiss this appeal as abandoned”].)
Our Supreme Court has stated that the requirement that we review the entire
record is “mandated for only one [situation]—the indigent criminal defendant in his first
appeal as of right.” (In re Sade C. (1996) 13 Cal.4th 952, 986.) As well, the court has
cautioned: “Nothing is served by requiring a written opinion when the court does not
actually decide any contested issues.” (Conservatorship of Ben C. (2007) 40 Cal.4th 529,
544.)
No one benefits from reading today’s opinion, which has a two-paragraph
discussion section that simply argues for its own need to exist. I would instead dismiss
this appeal as abandoned in a brief unpublished order that notes, for Morales’s benefit,
that Penal Code section 1170.95 cannot be used to challenge a conviction for drug
possession. More importantly, I would take that approach generally in the dozens of
uncontested post-judgment appeals we receive. A single unnecessary opinion causes
little harm; a hundred such opinions shows that our resources could be better directed.
Our Supreme Court may tell us whether we should continue to generate opinions like this
one. (See People v. Delgadillo, review granted Feb. 17, 2021, S266305.)
I therefore respectfully dissent.
RAPHAEL J.