Filed 1/3/22 P. v. Reyes CA4/2
See concurring 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E077639
v. (Super.Ct.No. FWV024272)
GERALDO REYES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson,
Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
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Defendant and appellant, Geraldo Reyes, 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 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
facts, a statement of the case, and identifying one potentially arguable issue: whether the
court erred in finding defendant ineligible for section 1170.95 relief. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 2
On December 23, 2001, defendant, Francisco Rojas, and a third man, who was not
apprehended, entered a massage parlor. “[D]efendant pulled out a gun and used it to
direct employees and a patron into the employee break room. In the process, defendant
shot a female employee in the hip.” (People v. Reyes, supra, E035995.)
“Larry Cortez, the massage parlor security guard, testified in pertinent part that he
came out of his office at the massage parlor and encountered defendant and another man
in a hallway. Defendant was holding a gun to the head of a female employee. Cortez
pulled his gun, ducked behind a door, and directed the two men to drop their weapons.
Cortez testified that both men fired a total of six or seven rounds at him from small
caliber handguns. Both men then charged Cortez, while continuing to fire their weapons.
1 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2 On the court’s own motion, we take judicial notice of our prior unpublished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 (Jan. 19,
2006, E035995) [nonpub. opn.]; Evid. Code, §§ 452, 459; Cal. Rules of Court,
rule 8.1115(b).)
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Cortez returned fire and repelled the attack. At some point Cortez saw a third man, later
identified as Rojas, firing a handgun at him from only a few feet away. Cortez fired back
and hit Rojas who ran from the building and died a few minutes later in the parking lot.”
(People v. Reyes, supra, E035995.)
“Defendant, who was hit twice by bullets, fled through a window of the massage
parlor after breaking out the glass. Once outside, defendant directed Johnny Guy, a
passing motorist, to drive him to Baldwin Park. When Guy balked and said he was on his
way to church, defendant showed Guy the gun defendant had been holding in his right
hand. Guy then complied with defendant’s demand. From his home in Baldwin Park
defendant called the police and reported that he had been the victim of a drive-by
shooting. Paramedics transported defendant to a local hospital.” (People v. Reyes, supra,
E035995.)
“[A] jury found [defendant] guilty of first degree murder, prosecuted under the
provocative act murder doctrine (count 1); attempted voluntary manslaughter, as a lesser
included offense to the charged crime of attempted murder (count 2); six counts of assault
with a deadly weapon (counts 3, 4, 8, 10, 15); three counts of kidnapping (counts 5, 7,
11); three counts of false imprisonment (counts 9, 12, 13); and kidnapping during a
carjacking (count 14). The jury also returned true findings on firearms enhancements
alleged under . . . sections 12022.5, subdivisions (a) and (d), and 12022.53,
subdivisions (b) and (c). Based on the jury’s verdicts and true findings, the trial court
sentenced defendant to state prison for a total determinate term of 38 years followed by a
consecutive indeterminate term of 25 years to life on count 1, and a consecutive
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indeterminate term of life with the possibility of parole on count 14, defendant’s
conviction for kidnapping during a carjacking.” (People v. Reyes, supra, E035995,
fn. omitted.)
Defendant appealed, contending his first degree murder conviction must be
reversed because the court did not correctly instruct the jury on the pertinent murder
theory and because the evidence did not support the conviction. Defendant additionally
maintained the trial court improperly imposed or failed to strike various firearms use and
armed enhancements and that by imposing an upper term and consecutive sentences, the
trial court violated defendant’s Sixth Amendment right to trial by jury. This court agreed
with defendant’s claim that the trial court improperly imposed a section 12022.53,
subdivision (c), enhancement on count 2, defendant’s conviction for attempted voluntary
manslaughter. This court also agreed with defendant’s claim that the trial court failed to
strike a section 12022.5 enhancement imposed on defendant’s murder conviction.
However, this court held that defendant’s remaining claims were meritless. Therefore, by
opinion filed January 19, 2006, this court affirmed the jury’s determinations of guilt but
struck the pertinent enhancements and remanded the matter to the trial court for
resentencing. (People v. Reyes, supra, E035995.)
On July 23, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. On August 30, 2019, the People filed an informal response in which
they requested the trial court take judicial notice of this court’s opinion in People v.
Reyes, supra, E035995. The People contended defendant had failed to make a prima
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facie showing of relief. On the same date, the People filed a motion to strike defendant’s
petition. On September 9, 2020, counsel for defendant filed a reply brief.
On October 15, 2020, the People filed a supplemental brief in opposition to
defendant’s petition for resentencing, contending section 1170.95 did not apply to
provocative act murder. At a hearing on August 20, 2021, the trial court denied the
petition, finding that section 1170.95 relief does not apply to provocative act murder.
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
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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,
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.
I concur:
FIELDS
J.
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[People v. Reyes, E077639]
RAPHAEL, J., Concurring.
This is an appeal taken from the denial of a posttrial motion, where the appealing
defendant raises no issues. I would dismiss the appeal as abandoned in a brief order
explaining why the appeal cannot have merit. As our Supreme Court has noted:
“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.)
Instead, the majority (1) independently reviews the record for error; (2) issues an
opinion announcing that it has done so; (3) and provides a discussion section that asserts
it is important to issue an opinion but that states nothing about the case. (Maj. opn., ante,
at pp. 5-6.) The identical content free discussion section could be cut-and-pasted into any
of the myriad uncontested postjudgment appeals that we see. The majority provides no
reason why it is important for it to provide an opinion lacking any analysis of the case.
I would instead say more than the majority does, in an order of perhaps two
sentences: “Defendant has raised no issues in this appeal from the denial of a petition
filed under Penal Code section 1170.95, so the appeal is dismissed as abandoned.
Defendant was convicted on a theory of provocative act murder, which is still a valid
theory under California law because it is an implied malice theory, rather than one of
imputed malice that has been abrogated, see, e.g., People v. Swanson (2020)
57 Cal.App.5th 604, 612-613.)”
When we dismiss an appeal for any reason, we typically issue an order that
concisely states why it is being dismissed. That is what I would do, rather than issue an
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opinion that simply announces that we have reviewed the record and found nothing. In
an abandoned appeal from the denial of a postjudgment motion, there is typically a
simple way to explain why counsel cannot raise an issue in good faith. Once we
understand this reason, it is apparent that we do not need to review the entire record.
Indeed, it is perplexing to consider what someone who does review the record (here 255
pages) might be seeking to find.
In contrast, in a direct appeal from a conviction at trial, there is a good reason to
independently review the entire record, as error could be lurking anywhere. Accordingly,
the constitutional obligation for the court to independently review a record in a no-issues
case “applies only to a defendant’s first appeal as of right.” (People v. Kelly (2006)
40 Cal.4th 106, 119.) With a high volume of postjudgment challenges raising no issues,
we do not serve the public well by extending that procedure to circumstances where it
serves no purpose. We should not spend time reviewing records unnecessarily and
producing written opinions that do no more than declare we did so. (See People v. Scott
(2020) 58 Cal.App.5th 1127, 1133-1135.)
In People v. Delgadillo, review granted, Feb. 17, 2021, S266305, our Supreme
Court may offer some guidance as to how the Court of Appeal should handle these
postjudgment appeals in which counsel can find no issue to raise.
RAPHAEL
J.
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