People v. Coles CA4/2 ( 2021 )

Filed 12/10/21 P. v. Coles 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E077817
v. (Super.Ct.No. RIF1105613)
REGINALD COLES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Allen G Weinberg, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Reginald Coles appeals the Riverside County Superior
Court’s denial of his petition for resentencing made pursuant to section 1170.95 of the
Penal Code.1 We affirm.
BACKGROUND
1. The circumstances leading to defendant’s conviction
The background leading up to defendant’s petition for resentencing is taken from
the charging documents in the clerk’s transcript and our opinion issued in defendant’s
appeal from the judgment. (People v. Coles (Oct. 15, 2014, E057946) [nonpub. opn.].)
In 2011, defendant and his wife got into an argument that escalated into physical
violence. When defendant’s brother-in-law (the victim) learned of the incident, he went
to defendant’s house intending to spend the night with his sister and her two children.
Later that day, defendant returned home and got into another argument with his wife.
When the victim came to her defense, defendant stabbed him repeatedly, inflicting mortal
wounds.
The People charged defendant with willful unlawful murder committed with
deliberation, premeditation, and malice aforethought. A jury convicted him of second
degree murder in violation of section 187, subdivision (a).
Defendant appealed his conviction to this court and we affirmed. (People v.
Coles, supra, E057946.)
1 All further statutory references are to the Penal Code.
2
2. Defendant’s petition for resentencing
On January 1, 2019, Senate Bill No. 1437 became effective. (Stats. 2018,
ch. 1015 (SB 1437).) That measure amended sections 188 (defining malice) and 189
(defining degrees of murder) to limit the reach of the felony murder rule and to eliminate
the natural and probable consequences doctrine as it relates to murder. (SB 1437) The
bill also added section 1170.95, which created a procedure for convicted murderers who
could not be convicted under the law as amended to seek relief retroactively. (SB 1437)
In June 2021, defendant submitted a petition to the trial court pursuant to section
1170.95. Upon receipt of the petition, the clerk noticed a status conference.
Defendant was not present but was represented by counsel at the July 2021 status
conference and again at the August 2021 status hearing. At the hearing, counsel for the
People stated he had reviewed the file and found no instructions on natural and probable
consequences or felony murder. He had shared his notes with defendant’s counsel.
Defendant’s counsel agreed with the People. The court dismissed the petition.
Defendant appealed and we appointed counsel to represent him.
DISCUSSION
Defendant’s 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, which sets
forth a statements of the case and but no statement of facts. Counsel declined to suggest
any arguable issues.
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Counsel posits this court is required to independently review the entire record on
appeal. When, in an indigent defendant’s first appeal of right, appointed appellate
counsel files an opening brief that does not present an arguable issue, it is well settled
that the appellate court must offer the defendant an opportunity to submit a personal
supplemental brief and to review the entire record whether or not the defendant files a
brief. (Wende, supra, 25 Cal.3d at pp. 441-442.)
Not settled, however, is what procedures the reviewing court should follow in
cases in which appointed appellate counsel files a no-issues brief in a defendant’s appeal
from an order denying a post-judgment motion. That question is pending before our
Supreme Court in a number of cases, including in People v. Scott (2020) 58 Cal.App.5th
1127, 1131 (Scott), review granted March 17, 2021, S266853.
In Scott, one panel in this division concluded there is no reason to conduct an
independent review of the record if counsel files a no-issues brief in a post-judgment
appeal and, if a defendant fails to file a supplemental brief in such a case, the court
should simply dismiss the appeal as abandoned. (Scott, supra, 58 Cal.App.5th at pp.
1131-1132 (but see dis. opn. of Miller, J.); accord People v. Figueras (2021) 61
Cal.App.5th 108, review granted, May 12, 2021, S267870.)
In People v. Gallo (2020) 57 Cal.App.5th 594 (Gallo), another panel of this court
concluded the interests of justice call for independent review of the record in post-
judgment no-issue appeals even if the defendant has not filed a supplemental brief. (Id.
at p. 599 (but see dis. opn. of Menetrez, J.); accord People v. Flores (2020) 54
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Cal.App.5th 266, 269 [when an appointed counsel files a Wende brief in an appeal from a
summary denial of a section 1170.95 petition, reviewing court 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 [court of appeal has the
discretion to review the record in the interests of justice].)
We respectfully disagree with Scott and find the procedure in Gallo provides
indigent defendants an additional layer of due process while consuming comparatively
little in judicial resources.
Here, we offered defendant an opportunity to file a personal supplemental brief,
which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th
106, and in keeping with Gallo, supra, 57 Cal.App.5th 594, we have independently
reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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