California Court of Appeal Aug 26, 2021 No. E076665Unpublished
Filed 8/26/21 P. v. Castro 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E076665
v. (Super.Ct.No. CR57414)
ROBERT RICHARD CASTRO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Paul Stubb, Jr., under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Robert Richard Castro appeals the Riverside County
Superior Court’s summary denial of his petition for resentencing made pursuant to
section 1170.95 of the Penal Code.1 We affirm.
BACKGROUND
In 1994, defendant was found guilty of four counts of attempted murder with
firearm enhancements (§§ 664, 187, & former § 12022) and one count of conspiracy to
commit murder (§§ 182, 187). The trial court struck the enhancements and sentenced
of record even though defendant did not file a supplemental brief].)
Recent opinions issued by this court reflect the division in approach to the
situation in which defendant does not file a supplemental brief. In Scott, one panel
concluded there is no reason to conduct an independent review of the record or to issue
an opinion in such a case and dismissed 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.)
4
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
postjudgment 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
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.
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
McKINSTER J.
FIELDS J.
6
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the summary denial of the defendant's petition for resentencing under Penal Code section 1170.95 after conducting an independent review of the record and finding no arguable issues.
Issues
Whether Wende/Anders procedural protections apply to an appeal of a denial of a section 1170.95 petition when counsel files a no-issues brief.
Whether the court should conduct an independent review of the record in a postconviction appeal when no supplemental brief is filed.
Whether Senate Bill No. 1437 applies to attempted murder liability.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”