People v. Perez CA4/3 ( 2021 )

Filed 9/14/21 P. v. Perez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G060134
v. (Super. Ct. No. 11NF2782)
CRISTIAN PEREZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Michael
J. Cassidy, Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
A kidnapping for robbery conviction may be sustained “if the movement of
the victim is beyond that merely incidental to the commission of, and increases the risk of
harm to the victim over and above that necessarily present in, the intended underlying
offense.” (Pen. Code, § 209, subd. (b)(2), italics added.)
I
FACTS AND PROCEDURAL HISTORY
Defendant Cristian Perez participated in a home invasion robbery with
accomplices. During the robbery, a victim was moved to a garage outside of the home,
then he was moved back into the home, and then the victim was moved within the home.
(People v. Perez et al. (Oct. 20, 2020, G056047) [nonpub. opn.] (Perez I).)
Following a jury trial, Perez was convicted of kidnapping for robbery,
kidnapping, robbery, and burglary. The trial court imposed a life sentence (with the
possibility of parole) for the kidnapping for robbery count, plus a determinate term of 10
years and eight months for the remaining offenses.
On appeal, this court found substantial evidence to support the movement
or “asportation” element of the kidnapping for robbery conviction. However, we
reversed the kidnapping conviction due to an instructional error. We remanded the case,
allowing the prosecution to retry Perez for the kidnapping count. We also ordered the
trial court to stay Perez’s sentences for the robbery and burglary convictions, and to
correct errors in the abstract of judgment. (Perez I, supra, G056047.)
On remand, the prosecution elected not to retry Perez for the kidnapping
charge and dismissed it. The court imposed a new sentence (life with the possibility of
parole with no determinate term) and corrected the abstract of judgment.
Perez filed a notice of appeal. We appointed appellate counsel, who filed a
“Wende brief” identifying no arguable issues. (See People v. Wende (1979) 25 Cal.3d
436.) Perez filed a supplemental brief.
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II
DISCUSSION
Perez states: “Although no new issues could be found and brought to this
Court’s attention, I would like to humbly request that this court reconsider its assessment
and review of appellants conviction [for kidnapping for robbery].” Perez cites several
published opinions and argues—just as he did in Perez I—the asportation element of the
kidnapping for robbery conviction is not supported by substantial evidence.
Perez is essentially asking for a “second bite at the apple” by asking this
court to “reconsider” our holding in Perez I. But we cannot do that under California law.
After a “remittitur issues, ‘the trial court is revested with jurisdiction of the
case, but only to carry out the judgment as ordered by the appellate court.’” (People v.
Hargis (2019) 33 Cal.App.5th 199, 204; People v. Senior (1995) 33 Cal.App.4th 531,
534-535 [“California law prohibits a direct attack upon a conviction in a second appeal
after a limited remand for sentencing or other posttrial procedures”].)
Here, we remanded the case for a possible retrial on the reversed
kidnapping count, but the prosecution elected not to retry Perez and dismissed that
charge. We also directed the trial court to resentence Perez and to correct the abstract of
judgment. Therefore, the only possible errors that may be raised by Perez in this second
appeal are those related to sentencing or the abstract of judgment.
In short, we cannot “reconsider” our prior holding that substantial evidence
supported the asportation element of the kidnapping for robbery conviction. (See People
v. Boyer (2006) 38 Cal.4th 412, 441 [“the law-of-the-case doctrine ‘prevents the parties
from seeking appellate reconsideration of an already decided issue in the same case
absent some significant change in circumstances’”].)
Having examined the entire record, we agree with Perez’s appointed
appellate counsel that there are no arguable issues on appeal.
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III
DISPOSITION
The judgment is affirmed.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, Division Seven,
assigned by the Chief Justice pursuant to article VI, section 6, of the California
Constitution.
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