People v. Contreras CA2/3 ( 2021 )

Filed 12/9/21 P. v. Contreras CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B311469
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA068469)
v.
MARCOS ANTHONY
CONTRERAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
—————————
Marcos Anthony Contreras appeals from an order denying
his petition for resentencing under Penal Code1 section 1170.95.
Our independent review of the record shows no arguable
appellate issues.
BACKGROUND
In 2007, a jury convicted Contreras of one count of first
degree murder (§ 187, subd. (a)) and five counts of attempted
murder (§§ 664, 187, subd. (a)) after he participated in a gang-
related drive-by shooting that resulted in the death of seven-year-
old Horace Ferguson. The trial court sentenced Contreras to a
term of 75 years to life in prison. A different panel of this
Division affirmed the judgment with directions to correct the
abstract of judgment in 2008. (People v. Contreras (Feb. 19, 2008,
B197761) [nonpub. opn.].)
On June 8, 2020, Contreras petitioned for resentencing
pursuant to section 1170.95. He alleged that he was charged and
convicted under a theory of felony murder or murder under the
natural and probable consequences doctrine, and could not now
be convicted of first or second degree murder because of changes
made to sections 188 and 189 by Senate Bill No. 1437. The trial
court denied the petition on March 1, 2021, finding that the jury
must have concluded that Contreras acted with the intent to kill.
Thus, Contreras could still be convicted of murder under section
188 or 189 as amended by Senate Bill No. 1437. Contreras
appealed.
1 All further statutory references are to the Penal Code.
2
DISCUSSION
After review of the record, Contreras’s court-appointed
counsel filed an opening brief that raised no issues and requested
that we conduct an independent review of the record pursuant to
People v. Wende (1979) 25 Cal.3d 436. Contreras’s counsel
advised him that he had 30 days to submit a supplemental brief
with any additional contentions or argument and that he may
request this court to relieve present counsel. Contreras did not
file a supplemental brief.
The jury was not instructed with the felony murder or
natural and probable consequences theories of liability. Rather,
the People pursued a malice murder with the intent to kill and a
provocative act theory of liability. The jury convicted Contreras
of first degree murder based upon a malice murder with the
intent to kill theory of liability because it also found Contreras
guilty of five counts of willful, deliberate, and premeditated
attempted first degree murder based on an aiding and abetting
theory which required a finding that Contreras acted with the
specific intent to kill. Further, the jury rejected the provocative
act theory of liability because it found that the principal in the
crime, Contreras’s fellow gang member, shot and killed the
victim. As such, Contreras was convicted of first degree murder
under a specific intent to kill theory which was also willful,
deliberate and premeditated and thus was ineligible for relief
under section 1170.95.2
2Nor was the jury instructed on a natural and probable
consequences theory of attempted murder, thus the newly
enacted Senate Bill No. 775 would not apply.
3
We have examined the entire record, and are satisfied
appellate counsel has fully complied with his responsibilities and
no arguable issues exist in the appeal before us. (People v.
Wende, supra, 25 Cal.3d at p. 443.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
WINDHAM, J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
4