Filed 2/28/22 P. v. Contreras CA4/1
Opinion following transfer from Supreme Court
OPINION AFTER TRANSFER FROM CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077860
Plaintiff and Respondent,
v. (Super. Ct. No. SCD238193)
ANTHONY LOPEZ CONTRERAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Charles G. Rogers, Judge. Reversed and remanded with directions.
Nancy E. Olsen, 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, Michael
Pulos, Lynne G. McGinnis and Teresa Torreblanca, Deputy Attorneys
General for Plaintiff and Respondent.
INTRODUCTION
Anthony Lopez Contreras appealed from the trial court’s denial of his
petition filed under Penal Code1 section 1170.95, in which Contreras sought
to vacate his conviction for attempted premeditated murder and to be
resentenced. This court affirmed the denial of the petition, concluding that
under its express terms, section 1170.95 provided no relief for defendants
convicted of attempted murder.
The California Supreme Court granted review, and remanded the
matter back to this court with directions to vacate its decision and reconsider
the cause in light of the newly enacted Senate Bill No. 775 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 551) (Senate Bill 775). We requested and received
supplemental briefing from the parties on the following question: “Whether
Contreras is precluded from seeking resentencing under Penal Code section
1170.95, where the jury found true the allegation that the attempted murder
was willful, deliberate and premeditated.”
Contreras argues the case must be remanded for an evidentiary
hearing and the issuance of an order to show cause. The Attorney General
agrees and concedes it is unclear from the instructions given to the jury and
the verdict rendered whether the jury relied on a natural and probable
consequences theory of liability to convict Contreras of attempted
premeditated murder, and thus, the case must be remanded. We accept the
Attorney General’s concession and reverse and remand the matter to the trial
court with directions.
BACKGROUND
1 All subsequent statutory references are to the Penal Code.
2
Contreras’s convictions arise from his alleged involvement in a drive-by
shooting. At trial, the prosecutor proceeded on the theory that Contreras was
the actual shooter. However, based on Contreras’s statement to police that
he was the driver of the vehicle and the victim’s testimony that the passenger
was the shooter, the trial court instructed the jury on aiding and abetting
under CALCRIM No. 401. The trial court also instructed the jury on
attempted premeditated murder under CALCRIM No. 601, which provides in
relevant part that “[t]he attempted murder was done willfully and with
deliberation and premeditation if either the defendant or [the shooter] or
both of them acted with that state of mind.”
During deliberations, the jury sent out a question asking for
clarification on CALCRIM 401: “Judge [¶] Per 401, Paragraph 2, does the
wording ‘commit THE crime’ mean specifically attempted murder in this
case, or ANY crime that results from the actual actions of the individual or
individuals involved. [¶] For example: [¶] If a person asks his friend for a
ride to 7-11 with the intent to rob it. The person goes in and shoots the clerk,
is the friend guilty of aiding and abetting a shooting or just aiding and
abetting the robbery.”
At the prosecution’s request and over the defense’s objection, the trial
court decided to instruct the jury with a modified version of CALCRIM No.
403 to respond to the jury’s question. The trial court instructed the jury as
follows:
“A defendant may be found guilty of committing attempted
murder as charged in count 1 as either a direct perpetrator or as
an aider and abettor to the crime. A person may also be guilty of
a crime committed by another which was a natural and probable
consequence of a crime the defendant aided and abetted. The
requirements for such liability are the subject of this instruction.
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“In order to find the defendant guilty of attempted murder under
a theory that the crime of attempted murder charged in count 1
was a natural and probable consequence of the crime of shooting
at an occupied motor vehicle or the crime of assault with a
firearm, you must first decide whether the defendant is guilty of
shooting at an occupied motor vehicle or assault with a firearm.
“Under this theory of liability, to prove that the defendant is
guilty of attempted murder, the People must prove: 1[.] The
defendant is guilty of shooting at an occupied motor vehicle or
assault with a firearm as an aider and abettor; 2[.] During the
commission of shooting at an occupied motor vehicle or assault
with a firearm, a co-participant in that crime committed the
crime of attempted murder; and 3[.] Under all of the
circumstances, a reasonable person in the defendant's position
would have known the commission of the attempted murder was
a natural and probable consequence of the commission of
shooting at an occupied motor vehicle or assault with a firearm.”
The jury ultimately convicted Contreras of attempted premeditated
murder (§§ 664/187 subd. (a), 189), and shooting at an occupied vehicle
(§ 246). As to both counts, the jury found the crime was committed for the
benefit of a criminal street gang (§ 186.22(b)(1)) and a principal in the crime
discharged a firearm (§ 12022.53(e)(1)). The jury was unable to reach a
verdict on the count charging Contreras with possession of a firearm by a
felon (§ 12021, subd.(a)), and found not true the allegation Contreras
personally discharged a firearm (12022.53, subd. (d)). The trial court
sentenced Contreras to life in prison plus 25 years to life.
In his direct appeal, Contreras argued in part that the trial court
erroneously instructed the jury on the natural and probable consequence
doctrine, including that his due process rights were violated for inadequate
notice that the prosecution would proceed on a natural and probable
consequences theory. This court rejected these contentions and affirmed
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Contreras’s convictions. (People v. Contreras (May 13, 2015, D064999)
[nonpub. opn.].)
In 2019, Contreras filed a petition for resentencing under section
1170.95, contending that because his attempted murder conviction was
obtained under a natural and probable consequences theory, the conviction
should be vacated and he should be resentenced. The trial court first
determined that Contreras had made a prima facie showing that he was
convicted of attempted murder under the natural and probable consequences
doctrine. Nevertheless, the trial court concluded that Contreras was not
eligible for resentencing, since section 1170.95 at that time was not available
to defendants convicted of attempted murder.
Contreras appealed, and we affirmed the denial of the resentencing
petition, as Courts of Appeal at that time uniformly agreed that the
resentencing procedure under section 1170.95 did not apply to attempted
murder convictions. (People v. Contreras, supra, D077860.)
While this case was still pending, the Legislature enacted Senate Bill
No. 775, which amended section 1170.95 to provide that convictions for
attempted murder could be eligible for the resentencing process under
section 1170.95. In response to this new legislation, the California Supreme
Court remanded the case back to this court for reconsideration.
DISCUSSION
“Senate Bill 1437 ‘amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.’ ”
(People v. Gentile (2020) 10 Cal.5th 830, 842.) The bill also “added section
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1170.95 to provide a procedure for those convicted of felony murder or murder
under the natural and probable consequences doctrine to seek relief[.]”
(Id. at p. 843.) Pursuant to the former section 1170.95, subdivision (a), “[a]
person convicted of felony murder or murder under a natural and probable
consequences theory” may file a petition “to have the petitioner’s
murder . . . conviction vacated and to be resentenced on any remaining
counts[.]” (Italics added). Following the plain language of the statute,
appellate courts uniformly agreed that section 1170.95, as written at that
time, did not authorize a petition to vacate an attempted murder conviction.
(See People v. Alaybue (2020) 51 Cal.App.5th 207, 223 [the plain terms of the
former section 1170.95 do not apply to attempted murder]; People v. Dennis
(2020) 47 Cal.App.5th 838, 845–846 [same]; People v. Medrano (2019) 42
Cal.App.5th 1001, 1016–1018 [same]; People v. Larios (2019) 42 Cal.App.5th
956, 968–970; People v. Munoz (2019) 39 Cal.App.5th 738, 754 [same]; People
v. Lopez (2019) 38 Cal.App.5th 1087, 1104–1105 [same].)
In Senate Bill 775, which took effect on January 1, 2022, the
Legislature clarified that it intended defendants convicted of attempted
murder under a natural probable consequences theory to be eligible for
resentencing just the same as defendants who were convicted of murder.
(Stats. 2021, ch. 551, § 2.) The new legislation amended subdivision (a) of
section 1170.95 to read, in pertinent part: “[a] person convicted of . . .
attempted murder under the natural and probable consequences doctrine . . .
may file a petition with the court that sentenced the petitioner to have the
petitioner’s . . . attempted murder . . . conviction vacated and to be
resentenced on any remaining counts[.]” (Stats. 2021, ch. 551, § 2.)
The ameliorative changes to section 1170.95 set forth by Senate Bill
775 apply retroactively to all cases not final on appeal as of the effective date
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of the statute. (People v. Vieira (2005) 35 Cal.4th 264, 305; In re Estrada
(1965) 63 Cal.2d 740, 744.) Because Contreras’s appeal is not yet final, he is
entitled to any benefits the new statute may provide.
In the order denying Contreras’s petition for resentencing, the trial
court found that Contreras “indisputably” made a prima facie showing that
he was convicted of attempted murder under the natural and probable
consequences doctrine. The trial court concluded, however, that Contreras
was ineligible for resentencing because, at that time, the plain terms of
section 1170.95 did not apply to defendants convicted of attempted murder.
The Attorney General does not challenge the trial court’s finding that
Contreras has made a prima facie that he was convicted under the natural
and probable consequences doctrine, and concedes that Contreras should not
be precluded from resentencing under section 1170.95. Although the jury in
this case convicted Contreras of attempted premeditated murder, the
Attorney General notes that the jury was not required under the instructions
given to find that Contreras personally committed the attempted murder or
personally premeditated. Instead, the jury was instructed that it could find
the attempted murder was done willfully and with deliberation and
premeditation if either Contreras or the shooter or both of them acted with
that state of mind.
Because the trial court did not have the benefit of the statutory
changes created by Senate Bill 775 when it ruled on Contreras’s petition, and
because the Attorney General concedes Contreras made a prima facie
showing that he was convicted of attempted murder under the natural and
probable consequences doctrine, we accept the Attorney General’s concession
and reverse the order denying the petition and remand for an evidentiary
hearing.
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DISPOSITION
The order denying Contreras’s petition for resentencing under
section 1170.95 is reversed. The matter is remanded to the trial court with
directions to issue an order to show cause and conduct an evidentiary hearing
as required by statute. We express no opinion on the appropriate outcome of
such hearing.
DO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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