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Filed 10/12/23 P. v. Contreras CA4/2

See Concurring and Dissenting Opinion

Opinion following transfer from 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE DANIEL CONTRERAS,

Defendant and Appellant.

E074711

(Super.Ct.No. CR27580)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Reversed and remanded with directions.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
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General, and A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for 

Plaintiff and Respondent.

This case returns to us from our Supreme Court, which has ordered us to 

reconsider our dismissal in light of its decisions in People v. Delgadillo (2022) 14 Cal.5th 

216 (Delgadillo) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). The parties agree, 

and we agree with the parties, that Lewis requires us to reverse the order denying 

Contreras’s petition and remand for further proceedings.

BACKGROUND

In 1987 Joe Daniel Contreras was charged along with another codefendant with 

two counts of premeditated murder and one count of attempted murder with a multiple 

murder special circumstance allegation. The information also alleged that Contreras 

personally used a firearm. A third defendant was charged with the same offenses—with 

the possible exception of the personal firearm use allegation—in a separate case.1

Contreras’s codefendant pled guilty to being an accessory to murder, but Contreras 

proceeded to trial. In 1988, a jury convicted Contreras of two counts of first degree 

murder, and one count of attempted murder, and found the personal firearm use 

allegation true. On direct appeal we reduced one of the convictions for first degree 

murder to second degree murder and reduced the attempted murder conviction to assault 

with a deadly weapon. (People v. Contreras (Oct. 26, 1990, D012072 [nonpub. opn.].)

1 We take portions of this procedural history from our opinion in Contreras’s 

direct appeal. (Pen. Code, § 1172.6, subd. (d)(3) [“The court may also consider the 

procedural history of the case recited in any prior appellate opinion.”].)
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In July 2019, Contreras filed a petition for resentencing under recently enacted 

Penal Code2section 1170.95, now section 1172.6. The trial court held a prima facie 

hearing on the petition in January 2020. At that hearing, the prosecution argued the 

multiple-murder special circumstance required “intent to kill for the aider and abettor.”

They also informed the court that the jury was not instructed on the natural and probable 

consequences doctrine. The trial court dismissed the petition, and Contreras appealed.

On Contreras’s request, we appointed counsel to represent him on appeal. 

Counsel filed a brief declaring she found no arguably meritorious issues to appeal and 

asking us to conduct an independent review of the record under People v. Wende (1979) 

25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. We dismissed his appeal as 

abandoned on the basis that he was not entitled to independent review in an appeal from a 

postconviction order and had not filed a supplemental brief. (Delgadillo, supra, 14 

Cal.5th at pp. 231-232.)

After dismissing his case, our Supreme Court decided Delgadillo and Lewis, and 

remanded the case to us for reconsideration in light of those decisions. We now do so.

DISCUSSION

The parties agree that under our Supreme Court’s decision in Lewis the order 

denying Contreras’s petition should be reversed and the case remanded. We agree with 

the parties.

2 Unlabeled statutory citations refer to the Penal Code.
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Senate Bill No. 1437 (Senate Bill 1437) (2017-2018 Reg. Sess.), effective 

January 1, 2019, amended the definition of felony murder in section 189 and eliminated 

liability for murder and attempted murder under a natural and probable consequences 

theory. Senate Bill 1437 also added what is now section 1172.6, which (in its current 

version) allows “[a] person convicted of felony murder or murder under the natural 

and probable consequences doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime,” or “attempted murder 

under the natural and probable consequences doctrine,” to “file a petition with the 

court that sentenced the petitioner to have the petitioner’s murder [or] attempted 

murder . . . conviction vacated and to be resentenced.” (§ 1172.6, subd. (a).) Once a 

court determines that such a petition contains all relevant information, “the court shall 

hold a hearing to determine whether the petitioner has made a prima facie case for relief.” 

(§ 1172.6, subd. (c).) 

When conducting a prima facie review, the court “ ‘ “ ‘takes [the] petitioner’s 

factual allegations as true and makes a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual allegations were proved.’ ” ’ ” 

(People v. Eynon (2021) 68 Cal.App.5th 967, 975.) “The record of conviction will 

necessarily inform the trial court’s prima facie inquiry,” however such inquiry is 

“limited.” (Lewis, supra, 11 Cal.5th at p. 971.) Though the court should generally not 

assess the petitioner’s credibility without an evidentiary hearing “ ‘if the record, 

including the court’s own documents, “contain[s] facts refuting the allegations made in 
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the petition,” then “the court is justified in making a credibility determination adverse to 

the petitioner.” ’ ” (Ibid.) “If the record of conviction does not conclusively demonstrate 

that the defendant ‘engaged in the requisite acts and had the requisite intent’ to be 

convicted on a theory of murder [or attempted murder] that remains valid, denying relief 

at the prima facie stage is improper.” (People v. Barboza (2021) 68 Cal.App.5th 955, 

965-966.)

We agree with the parties that nothing in the record of conviction before the trial 

court conclusively established that Contreras was not entitled to relief. Two other

defendants were charged for the murders and attempted murder, one of which pled to 

being an accessory, suggesting Contreras did not act alone. Contreras’s jury also 

received an instruction which arguably allowed them to convict on a now defunct theory 

of liability, namely the natural and probable consequences doctrine.

3 Finally, the 

multiple-murder special circumstance does not conclusively establish that Contreras was 

ineligible for relief as to both murders, and therefore he could be eligible for relief for 

one of them. (People v. Rogers (2006) 39 Cal.4th 826, 892 [“state law never has required 

a jury to find intent to kill both victims in order for the multiple-murder special 

3 The instruction which Contreras contends allowed the jury to convict on a 

natural and probable consequences theory, the 1984 version of CALJIC No. 3.00, is a 

general instruction on liability for aiders and abettors. However, it includes the sentence 

“[o]ne who aids and abets is not only guilty of the particular crime that to his knowledge 

his confederates are contemplating committing, but he is also liable for the natural and 

reasonable or probable consequences of any act that he knowingly and intentionally aided 

or encouraged.” This sentence appears to have been the entire form instruction on the 

natural and probable consequences theory until the creation of CALJIC No. 3.02, which 

is a separate instruction specifically addressing the natural and probable consequences

theory. (See People v. Prettyman (1996) 14 Cal.4th 248, 263-264 (Prettyman).) 
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circumstance to be found true.”].) Accordingly, we cannot say from the record of 

conviction alone that Contreras is ineligible for relief as a matter of law.

The parties may disagree on precisely what remedy Contreras is due. Contreras 

simply requests a remand for further proceedings, while the People request we remand 

for another prima facie review hearing. We conclude that another prima facie review 

hearing is appropriate here. While we are convinced that the record before the trial court 

did not conclusively establish Contreras’s ineligibility, we are not convinced Contreras 

has demonstrated a prima facie case for eligibility. That is, based only on the record 

before us, we are not certain it was possible for Contreras to be convicted under a now 

defunct theory of liability, rather than based on a theory which required intent to kill. 

Though the jury was arguably provided with instructions that could be used to support a 

natural and probable consequences theory, it is not clear from our review of the record 

that there was evidence or argument that supported such a theory. In order to do so, the 

jury would have had to find that the murders and attempted murder were the natural and 

probable consequence of some other target offense and were not themselves the target 

offenses.4 Given the record before us, we cannot say that there was evidence from which 

the jury could have found as much, nor that the prosecution argued this. However, 

4 While the jury was not required to be instructed on the identified target 

offense until after our Supreme Court’s decision in Prettyman, supra, 14 Cal.4th at 

pp. 269-270, liability under the natural and probable consequences has always required 

the existence of a target offense other than the charged offense. (Id. at p. 262 [“when a 

particular aiding and abetting case triggers application of the ‘natural and probable 

consequences’ . . . the trier of fact must also find that . . . the defendant’s confederate 

committed an offense other than the target crime”].)
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because it is possible that Contreras could produce evidence from the record of 

conviction establishing that the prosecution did proceed under a theory of vicarious 

liability for at least one, if not all, of the charged offenses, we agree with the People that 

the appropriate remedy is to remand for a new prima facie hearing.

DISPOSITION

We reverse the order denying petitioner’s section 1172.6 petition and remand. On 

remand, we direct the trial court to hold a prima facie hearing on Contreras’s petition and 

to conduct further proceedings as required under section 1172.6.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

I concur:

McKINSTER

Acting P. J.
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[People v. Joe Contreras, E074711]

MENETREZ, J., Concurring and Dissenting.

Defendant Joe Daniel Contreras and two codefendants were all charged (in two 

separate cases) with the same offenses: two murders and an attempted murder. 

Contreras’s jury was instructed on the natural and probable consequences doctrine, and 

the instruction neither identified a target offense nor required a target offense at all—it 

imposed liability for the natural and probable consequences of “any act” that Contreras 

“knowingly and intentionally aided or encouraged.” Given that multiple principals were 

involved and the jury was instructed on (an antiquated version of) the natural and 

probable consequences doctrine, it is impossible to conclude that the jury necessarily 

found facts that would be sufficient for murder liability under current law. Consequently, 

because courts cannot engage in factfinding on prima facie review of a petition under 

Penal Code section 1172.6 (People v. Lewis (2021) 11 Cal.5th 952, 972), Contreras is 

entitled to an order to show cause. I therefore concur in the judgment insofar as it 

reverses the denial of Contreras’s petition, but I respectfully dissent from the decision not 

to instruct the trial court to issue an order to show cause.

MENETREZ

J.