People v. Contreras CA4/1

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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