Filed 10/7/22 P. v. Reyes CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079184
v. (Super.Ct.No. INF063102)
JULIO CESAR REYES, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, Julio Cesar Reyes, Jr., filed a petition for resentencing
pursuant to former Penal Code section 1170.95,1 which the court denied. After defense
counsel filed two notices 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
the facts, a statement of the case, and two potentially arguable issues: (1) whether the
trial court erred by ruling on the petition at a status conference rather than a formal,
noticed prima facie hearing; and (2) whether the court erred in declining to require
defendant’s presence at the hearing. We offered defendant an opportunity to file a
personal supplemental brief, which he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 2
Defendant and a cohort approached the victim at a restaurant. Defendant’s cohort
asked the victim for a cigarette; the victim gave him one and they conversed briefly.
Defendant’s cohort left; defendant pulled out a gun and told the victim to hand over his
watch. The victim complied; defendant demanded his wallet. As the victim was
reaching for his wallet, defendant shot him in the chest. Defendant tried to fire a few
1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
2 On the court’s own motion, we take judicial notice of our prior unpublished opinion in defendant’s appeal from the original judgment. (People v. Reyes (May 12, 2011, E051019) [nonpub. opn.] (Reyes); Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b).)
2 more times but the gun misfired. Defendant fled outside, where his cohort picked him
up. They were captured the same night. Defendant had the victim’s watch in his pocket
when he was arrested. The victim survived the gunshot injury with no permanent
disability. (Reyes, supra, E051019.)
A jury found defendant guilty of attempted murder with premeditation and
deliberation (§§ 664, 187, subd. (a), count 1) and robbery (§ 211, count 2). The jury
further found true allegations as to both counts that defendant personally discharged a
firearm resulting in great bodily injury and personally inflicted great bodily injury.
(§§ 12022, subd. (b)(1), 12022.53, subds. (c), (d), 12022.7, subd. (a).) The trial court
thereafter found true a prior strike allegation. (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1).) (Reyes, supra, E051019.)
On May 28, 2010, the trial court sentenced defendant to a life term with a
minimum parole eligibility of 14 years for the attempted murder and a consecutive term
of 25 years to life for the great bodily injury firearm enhancement. (§ 12022.53,
subd. (d).) The trial court stayed the sentences for the robbery and all other
enhancements. Defendant appealed. This court affirmed the judgment. (Reyes, supra,
E051019.)
On January 10, 2022, defendant filed a form petition for resentencing pursuant to
former section 1170.95. The People filed a request for summary denial of defendant’s
petition contending “acted with the requisite intent,” to be convicted even under the
amended definitions of attempted murder. “For [defendant], the jury found he had an
intent to kill, and also personally discharged a firearm causing great bodily injury.”
3 Moreover, the People argued defendant was ineligible for relief because “the jury was not
instructed on the felony-murder rule or the natural and probable consequences theory or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime.”3
At the hearing on July 22, 2022, the People expounded: “It’s our motion at this
time to have the Court deny the petition. I’ve provided the jury instructions and the
Appellate opinion to [defense counsel] earlier. The Appellate opinion correctly states the
facts that the defendant shot him in the chest, page 2. The instructions are also there, and
nothing regarding natural and probable consequences of felony murder were given to the
jurors [proving] he was ineligible; thus, we would ask the petition be denied.”
Defense counsel responded that everything the People said was true: “I believe
he’s accurate, and I’m just objecting for the record.” The court ruled: “Based on
counsel’s recitation of the circumstances surrounding this test, the nature of the theory,
the prosecution, and the instructions that were given, the Court finds that there are no
elements that would bring this matter within [former section] 1170.95, and the petition is
denied.”
II. DISCUSSION
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
3 Among other documents, the People attached to their request a copy of this court’s opinion in Reyes, supra, E051019, and the jury instructions.
4 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
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.”], disapproved of by
People v. Strong (2022) 13 Cal.5th 698, on other grounds.) This procedure provides
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Filed 10/7/22 P. v. Reyes CA4/2 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, E079184
v. (Super.Ct.No. INF063102)
JULIO CESAR REYES, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge.
Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 Defendant and appellant, Julio Cesar Reyes, Jr., filed a petition for resentencing
pursuant to former Penal Code section 1170.95,1 which the court denied. After defense
counsel filed two notices 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
the facts, a statement of the case, and two potentially arguable issues: (1) whether the
trial court erred by ruling on the petition at a status conference rather than a formal,
noticed prima facie hearing; and (2) whether the court erred in declining to require
defendant’s presence at the hearing. We offered defendant an opportunity to file a
personal supplemental brief, which he has not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 2
Defendant and a cohort approached the victim at a restaurant. Defendant’s cohort
asked the victim for a cigarette; the victim gave him one and they conversed briefly.
Defendant’s cohort left; defendant pulled out a gun and told the victim to hand over his
watch. The victim complied; defendant demanded his wallet. As the victim was
reaching for his wallet, defendant shot him in the chest. Defendant tried to fire a few
1 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) All further statutory references are to the Penal Code unless otherwise indicated.
2 On the court’s own motion, we take judicial notice of our prior unpublished opinion in defendant’s appeal from the original judgment. (People v. Reyes (May 12, 2011, E051019) [nonpub. opn.] (Reyes); Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.1115(b).)
2 more times but the gun misfired. Defendant fled outside, where his cohort picked him
up. They were captured the same night. Defendant had the victim’s watch in his pocket
when he was arrested. The victim survived the gunshot injury with no permanent
disability. (Reyes, supra, E051019.)
A jury found defendant guilty of attempted murder with premeditation and
deliberation (§§ 664, 187, subd. (a), count 1) and robbery (§ 211, count 2). The jury
further found true allegations as to both counts that defendant personally discharged a
firearm resulting in great bodily injury and personally inflicted great bodily injury.
(§§ 12022, subd. (b)(1), 12022.53, subds. (c), (d), 12022.7, subd. (a).) The trial court
thereafter found true a prior strike allegation. (§§ 667, subds. (c), (e)(1), 1170.12,
subd. (c)(1).) (Reyes, supra, E051019.)
On May 28, 2010, the trial court sentenced defendant to a life term with a
minimum parole eligibility of 14 years for the attempted murder and a consecutive term
of 25 years to life for the great bodily injury firearm enhancement. (§ 12022.53,
subd. (d).) The trial court stayed the sentences for the robbery and all other
enhancements. Defendant appealed. This court affirmed the judgment. (Reyes, supra,
E051019.)
On January 10, 2022, defendant filed a form petition for resentencing pursuant to
former section 1170.95. The People filed a request for summary denial of defendant’s
petition contending “acted with the requisite intent,” to be convicted even under the
amended definitions of attempted murder. “For [defendant], the jury found he had an
intent to kill, and also personally discharged a firearm causing great bodily injury.”
3 Moreover, the People argued defendant was ineligible for relief because “the jury was not
instructed on the felony-murder rule or the natural and probable consequences theory or
other theory under which malice is imputed to a person based solely on that person’s
participation in a crime.”3
At the hearing on July 22, 2022, the People expounded: “It’s our motion at this
time to have the Court deny the petition. I’ve provided the jury instructions and the
Appellate opinion to [defense counsel] earlier. The Appellate opinion correctly states the
facts that the defendant shot him in the chest, page 2. The instructions are also there, and
nothing regarding natural and probable consequences of felony murder were given to the
jurors [proving] he was ineligible; thus, we would ask the petition be denied.”
Defense counsel responded that everything the People said was true: “I believe
he’s accurate, and I’m just objecting for the record.” The court ruled: “Based on
counsel’s recitation of the circumstances surrounding this test, the nature of the theory,
the prosecution, and the instructions that were given, the Court finds that there are no
elements that would bring this matter within [former section] 1170.95, and the petition is
denied.”
II. DISCUSSION
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
3 Among other documents, the People attached to their request a copy of this court’s opinion in Reyes, supra, E051019, and the jury instructions.
4 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
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.”], disapproved of by
People v. Strong (2022) 13 Cal.5th 698, on other grounds.) 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.
5 III. DISPOSITION
The order denying defendant’s petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER J. We concur:
RAMIREZ P. J.
FIELDS J.