Filed 3/10/21 P. v. Loza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075804
v. (Super.Ct.No. FSB1305304)
TOMMY RAY LOZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve C. Malone,
Judge. Affirmed.
Matthew A. Siroka, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant, Tommy Ray Loza, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the court denied. 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 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case
and identifying two potentially arguable issues: whether section 1170.95 relief is
available to defendants convicted of voluntary manslaughter and whether section 1170.95
relief is available to defendants charged with murder under the provocative act doctrine.
We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The People charged defendant by first amended felony information with attempted
premediated murder (§§ 664, 187, subd. (a), count 1), murder (§ 187, subd. (a), count 2),
first degree residential robbery (§ 211, count 3), two counts of assault with a firearm
(§ 245, subd. (a)(2), counts 4 & 5), dissuading a witness by force or threat, a serious
felony (§§ 136.1, subd. (c)(1), 1192.7, subd. (c)(37), 186.22, subd. (b)(4)(C), count 6),
and shooting at an inhabited dwelling (§ 246, count 7). In addition, the People alleged
defendant had personally discharged a firearm causing great bodily injury in his
commission of the offenses in counts 2, 3, and 7 (§ 12022.53, subd. (d)); had personally
discharged a firearm in his commission of the offenses in counts 2, 3, and 7 (§ 12022.53,
subd. (c)); had personally used a firearm in his commission of the offenses in counts 2, 3,
1 All further statutory references are to the Penal Code.
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4, 5, and 7 (§§ 12022.53, subd. (b), 12022.5, subds. (a), (d)); and had committed the
offenses in counts 2, 3, 4, 5, and 7 in for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)). It was further charged that a principal had personally discharged a
firearm proximately causing great bodily injury in the commission of the offenses in
counts 2, 3, and 7 (§ 12022.53, subds. (d), (e)(1)); had personally discharged a firearm in
the commission of the offenses in counts 2, 3, and 7 (§ 12022.53, subds. (c), (e)(1)); and
had personally used a firearm in the commission of the offenses in counts 2, 3, and 7
(§ 12022.53, subds. (b), (e)(1)). Additionally, it was alleged that defendant had suffered
a serious or violent felony prior (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)) and had
suffered a serious felony prior (§ 667, subd. (a)(1)).
On March 17, 2017, pursuant to a negotiated disposition, defendant pled guilty to
added counts of voluntary manslaughter (§ 192, subd. (a), count 8) and active
participation in a criminal street gang (§ 186.22, subd. (a), count 9). Defendant
additionally admitted he had suffered a prior strike conviction. (§§ 1170.12, subds. (a)-
(d), 667, subd. (a)(1).) In return, on the People’s motion, the court dismissed the
remaining counts and allegations. Pursuant to the plea agreement, the court sentenced
defendant to 22 years of imprisonment.
On March 1, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. The People filed opposition.
At the hearing on the petition on August 13, 2020, the People argued that
defendant “cannot avail himself on the face of Penal Code section 1170.95 since that
specifically deals with felony murder which was not the theory that we used in this case
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and/or a natural and probable consequences theory. So he cannot avail himself.” The
court found that defendant was “not eligible for relief as required pursuant to
section 1170.95 on the grounds that his conviction is not covered under Penal Code
section 1170.95 for the reason that it was a provocative act theory of murder.” The court
denied the petition.
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 recently 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 (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.”].) We respectfully disagree.
We agree with another panel of this court, which recently 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
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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
Acting P. J.
We concur:
MILLER
J.
FIELDS
J.
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