People v. Perez CA2/1 ( 2021 )

Filed 4/22/21 P. v. Perez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B308674
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A475479)
v.
JOSE LUIS PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, John A. Torribio, Judge. Reversed.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Penal Code1 section 1170.95 permits resentencing of
petitioners who could no longer be convicted of murder because of
changes to sections 188 and 189 that became effective January 1,
2019. The changes to sections 188 and 189 have no impact on a
defendant who was convicted as the actual killer. As People v.
Nash explained: “The Legislature declared . . . that it was
necessary to ‘amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’ ” (People v. Nash (2020)
52 Cal.App.5th 1041, 1055, italics added.)
The trial court denied petitioner Jose Luis Perez’s section
1170.95 petition for resentencing at the prima facie stage. The
trial court concluded that Perez was ineligible for resentencing
because he was the actual killer. We reverse the order because
the record of conviction does not establish as a matter of law that
Perez was the actual killer. We remand the case to the trial court
to issue an order to show cause and hold a section 1170.95,
subdivision (d)(3) hearing.
BACKGROUND
1. Felony Complaint, Conviction, and Sentence
In a felony complaint, the People charged Perez in count 1
as follows: “On or about August 2, 1987, in the County of
Los Angeles, the crime of MURDER, in violation of PENAL
CODE SECTION 187(a), a Felony, was committed by JOSE LUIS
1 Undesignated statutory citations are to the Penal Code.
2
PEREZ, who did willfully, unlawfully, and with malice
aforethought murder CLARENCE MUNOZ, a human being.”
With respect to count 1, the People further alleged that
Perez “personally used a firearm(s) within the meaning of
Penal Code Sections 1203.06(a)(1) and 12022.5 . . . .”
The People also alleged that “in the commission and
attempted commission of the above offense a principal in said
offense was armed with a firearm(s), to wit, a handgun, said
arming not being an element of the above offense, within the
meaning of Penal Code Section 12022(a).”
In counts 2 through 4, the People alleged that Perez
committed three counts of attempted murder. With respect to
each attempted murder, the People alleged that Perez personally
used a firearm within the meaning of sections 1203.06,
subdivision (a)(1) and 12022.5 and that a principal was armed
with a firearm.
Perez pleaded guilty to count 1. During the plea colloquy,
the prosecutor asked Perez as follows: “[T]o the charge in
Count I . . . of the Complaint that on or about August 2, 1987, in
the County of Los Angeles you committed the crime of murder in
violation of Penal Code Section 187(a), a felony, in the second
degree, how do you plead?” Perez responded, “Guilty.” Perez
admitted that he personally used a firearm within the meaning of
section 12022.5.2 The prosecutor asked defense counsel if he
2 When Perez committed his crime, section 12022.5
provided in pertinent part: “Any person who personally uses a
firearm in the commission or attempted commission of a felony
shall, upon conviction of such felony or attempted felony, in
addition and consecutive to the punishment prescribed for the
felony or attempted felony of which he or she has been convicted,
be punished by an additional term of imprisonment in the state
3
would stipulate to a factual basis for the plea. Defense counsel
responded: “After the consultation, the police reports, and the
conduction of the inquiry that I’ve made, I do.”
On a motion of the People, the trial court subsequently
dismissed the three counts of attempted murder. The trial court
sentenced Perez to 15 years to life and stayed a two-year
sentence on the firearm enhancement.
2. Petition for Resentencing
In February 2019, Perez filed a form petition for
resentencing. He checked boxes containing the following
information: (1) “A complaint, information, or indictment was
filed against me that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine.” (2) “I pled guilty or no contest
to 1st or 2nd degree murder in lieu of going to trial because I
believed I could have been convicted of 1st or 2nd degree murder
at trial pursuant to the felony murder rule or the natural and
probable consequences doctrine.” (3) I could not now be
convicted of 1st or 2nd degree murder because of changes made to
the Penal Code §§ 188 and 189, effective January 1, 2019.” Perez
requested that the trial court appoint counsel for him. The trial
court appointed counsel to represent him.
3. People’s Opposition to the Petition for Resentencing
The People opposed the petition, arguing that Perez was
the actual killer and therefore ineligible for relief under
prison for two years, unless use of a firearm is an element of the
offense of which he or she was convicted.” (Former § 12022.5,
added by Stats. 1982, ch. 1404, § 2.1, p. 5358.)
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section 1170.95. In addition to the felony complaint and plea
colloquy, the People attached as exhibits a probation report and a
report setting forth Perez’s lack of amenability to Youth
Authority housing.
The trial court considered only the following italicized
statements in the probation report, finding that petitioner’s
statements “regarding motivation” were admissible.3 The
probation report described the offense as follows: “The defendant
shot to death 18-year-old victim, Clarence Munoz, with a .32
caliber handgun. [¶] On August 2, 1987, at approximately 12:30
a.m., the defendant fired several shots at Victim Munoz, as
defendant drove by in a vehicle in the company of two male
Hispanics, ‘Playboys’ gang members.” As documented in the
probation report, the probation officer interviewed Perez, who
reported: “ ‘I really did not get involved.’ ” Defendant explained:
The victim “had tried killing defendant’s family members. He
pulled a gun on defendant’s brother, Martin and shot another of
defendant’s brothers, Rafiel. If the door of defendant’s house had
been open at the time [the] victim was armed, the victim would
have killed the whole family.” (Italics added.)
The trial court did not consider the report the superior
court had requested as to whether Perez was amenable to the
training and treatment at the Youth Authority (Youth Authority
report). That report recited: “In the instant offense defendant
shot and killed a rival gang member in a drive-by shooting.”
Perez “was an active member of the Playboys gang . . .” “Jose
denies committing the murder. He states that his brother Martin
3 On appeal, respondent does not challenge the trial court’s
exclusion of the probation report’s description of the offense or of
the Youth Authority report.
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had admitted to him that he had shot toward the victim that
evening. Jose indicates that he pled guilty to the charge in court,
so his brother could stay out and be with his children.” “A
homicide detective indicated that Jose tried to put the blame of
the instant offense on his brother, Martin, but Jose was the one
that committed the act.”
4. Perez’s Reply
With the assistance of counsel, Perez filed a reply brief. He
objected on hearsay grounds to consideration of the probation
report and the Youth Authority report.
5. The Trial Court Holds a Hearing and Concludes
Perez Did Not Establish a Prima Facie Case of
Eligibility for Resentencing
The trial court held a hearing to determine whether Perez
established a prima facie case of eligibility for resentencing. The
trial court concluded that Perez was the actual shooter, and thus
as a matter of law, was ineligible for resentencing. The court
stated it “finds there is not a prima facie basis. The defendant
was the actual killer. The petition is denied.” Perez timely
appealed.
DISCUSSION
A. Background on Section 1170.95
Our high court has described the law of murder: “A
conviction for murder requires the commission of an act that
causes death, done with the mental state of malice aforethought
(malice). (§ 187.) Malice may be either express or implied.
(§ 188.) Express malice is an intent to kill. [Citation.] Implied
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malice does not require an intent to kill. Malice is implied when
a person willfully does an act, the natural and probable
consequences of which are dangerous to human life, and the
person knowingly acts with conscious disregard for the danger to
life that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643,
653.) Implied malice murder does not require an intent to kill.
(Ibid.) “A person who kills unlawfully with implied malice is
guilty of second degree murder.” (Ibid.)
Prior to Senate Bill No. 1437, “when a person aided and
abetted a nonhomicide crime that then resulted in a murder, the
natural and probable consequences doctrine allowed him or her to
be convicted of murder without personally possessing malice
aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845.)
“Among other things, Senate Bill 1437 modified the requirement
of malice aforethought for purposes of murder. Now, except for
felony murder, ‘in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.’ [Citation.]” (Id. at p. 846.) “By its terms, section
188(a)(3) [currently] permits a second degree murder conviction
only if the prosecution can prove the defendant acted with the
accompanying mental state of mind of malice aforethought. The
prosecution cannot ‘impute[ ] [malice] to a person based solely on
his or her participation in a crime.’ [Citation.]” 4 (Gentile, at
4 Prior to enactment of Senate Bill No. 1437, section 188,
subdivision (a) provided, in pertinent part, “For purposes of
Section 187, malice may be express or implied. [¶] (1) Malice is
express when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature. [¶] (2) Malice
is implied when no considerable provocation appears, or when the
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p. 846.) As noted above, Senate Bill No. 1437 does not provide
relief to a defendant who was the actual killer. (People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410) [changes to sections 188 and 189 inapplicable to
actual killer].)
Senate Bill No. 1437, through new section 1170.95, permits
retroactive relief to a petitioner convicted on a no longer valid
theory of murder. (People v. Hernandez (2021) 60 Cal.App.5th 94,
100.) Under section 1170.95, subdivision (c), if the petitioner
makes a prima facie showing that he falls within the provisions
of the statute and is entitled to relief, then the trial court “shall
issue an order to show cause.” (§ 1170.95, subds. (b) & (c).) “ ‘A
prima facie showing is one that is sufficient to support the
position of the party in question.’ [Citation.]” (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020,
S260598.)
We recently explained the requirements for a petitioner to
establish a prima facie case for resentencing under section
1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154(Nguyen).) “Under section 1170.95, subdivision (a), ‘A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
circumstances attending the killing show an abandoned and
malignant heart. . . .”
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of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.’ ” (Nguyen, at p. 1164.)
“In determining whether a petitioner has made a prima
facie showing that he or she is entitled to relief, the ‘trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law—for example, a petitioner’s assertion that a particular
conviction is eligible for relief where the crime is not listed in
subdivision (a) of section 1170.95 as eligible for resentencing.
Just as in habeas corpus, if the record “contain[s] facts refuting
the allegations made in the petition . . . the court is justified in
making a credibility determination adverse to the petitioner.”
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to section
1170.95, [subdivision] (d) is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion . . . .’ [Citation.]” (Nguyen, supra, 53 Cal.App.5th at
pp. 1165–1166.) We explained that a petitioner fails to establish
a prima facie showing if the petition is untrue as a matter of
law.5 (Nguyen, at pp. 1165–1166.)
5 Other cases describe the same process. (People v.
Swanson (2020) 57 Cal.App.5th 604, 612, review granted Feb. 17,
2021, S266262 [“The contents of the record of conviction defeat a
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B. The Trial Court Erred In Concluding that As a
Matter of Law, Perez Failed to Establish a Prima
Facie Case of Eligibility for Resentencing
Perez argues that the record of conviction does not
establish as a matter of law that he was the actual shooter.
Respondent retorts the fact Perez pleaded guilty to second degree
murder and admitted a personal firearm use enhancement,
constitutes his admission that he was guilty of murder as the
actual killer, which remains a valid theory after Senate Bill
No. 1437’s enactment. Respondent further asserts the charging
document did not allege felony murder or the natural or probable
consequences theory of murder, and Perez was the only
defendant identified in the felony complaint. Respondent thus
concludes Perez was not convicted under a felony murder or
natural and probable consequences theory. Petitioner has the
better argument.
prima facie showing when the record shows as a matter of law
that the petitioner is not eligible for relief.”]; People v. Duchine
(2021) 60 Cal.App.5th 798, 815 [“absent a record of conviction
that conclusively establishes that the petitioner engaged in the
requisite acts and had the requisite intent,” the petitioner has
established a prima facie case]; People v. Drayton (2020)
47 Cal.App.5th 965, 982 [reversing the trial court’s order finding
no prima facie case because the trial court engaged in factfinding
that was not supported as a matter of law by the record of
conviction]; but see People v. Garcia (2020) 57 Cal.App.5th 100,
116, review granted Feb. 10, 2021, S265692 [“The trial court
should not accept the petitioner’s assertions as true and issue an
order to show cause if substantial evidence in the record supports
a murder conviction under current law.”].)
10
In his guilty plea, Perez admitted that he committed second
degree murder and that he personally used a firearm. Perez’s
second degree murder plea admits the elements of that offense,
but no more.6 (People v. Wallace (2004) 33 Cal.4th 738, 749.)
Perez’s admissions during the plea colloquy do not elucidate
whether he committed the murder as an actual killer or as an
aider and abettor. The plea colloquy does not reveal whether
Perez acted with actual, implied, or imputed malice; he never
admitted having express malice.
Further, the prosecution could have proceeded on a natural
and probable consequence theory without pleading a target
offense in the felony complaint. (See People v. Prettyman (1996)
14 Cal.4th 248, 266–268 [trial court has a sua sponte duty to
instruct on uncharged target offenses that form a part of the
prosecution’s theory of criminal liability and substantial evidence
supports the theory].) Perez’s personal use of a firearm shows
only that he used a firearm during the killing, not that he
discharged the firearm or fired the fatal shot. For these reasons,
we reject respondent’s argument that “[t]he accusatory pleading
taken together with the plea hearing make it clear that appellant
admitted to being the actual killer.”
In contrast to Nguyen, supra, 53 Cal.App.5th at p. 1168 in
which the preliminary hearing transcript demonstrated the
petitioner was convicted as a direct aider and abetter, and in
contrast to People v. Perez (2020) 54 Cal.App.5th 896, 905–906,
review granted December 9, 2020, S265254, in which the
6 When defense counsel requested that the prosecutor
amend the felony complaint to reflect the agreed upon
disposition, the prosecutor responded, “I think we just—we take
the plea to the crime of murder in the second degree.”
11
preliminary hearing transcript showed that the petitioner was a
direct shooter, there was no preliminary hearing here. Although
the plea colloquy could support a conclusion that Perez was the
actual shooter, that conclusion is not inevitable.
Because the record does not show as a matter of law that
Perez was ineligible for resentencing, we must remand the case
to the trial court to issue an order to show cause and hold a
section 1170.95, subdivision (d) hearing. The parties may offer
new evidence at the section 1170.95, subdivision (d) hearing
(People v. Hernandez, supra, 60 Cal.App.5th at p. 103, which may
include the probation report (see People v. Williams (2020)
57 Cal.App.5th 652, 662). We express no opinion on how the
trial court should rule at the section 1170.95, subdivision (d)
hearing.
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DISPOSITION
The order denying Perez’s petition for resentencing is
reversed. Upon remand, the trial court shall issue an order to
show cause pursuant to Penal Code section 1170.95,
subdivision (c) and conduct a hearing pursuant to Penal Code
section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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