People v. Perez CA4/2 ( 2021 )

Filed 10/27/21 P. v. Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E076051
v. (Super.Ct.No. SCR41000)
RICHARD DAVID PEREZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn
Kirschbaum, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
1
In 1983, a jury convicted Richard David Perez of multiple violent crimes,
including murder, for his participation in a spree of home invasions featuring a rotating
cast of codefendants. In 2019, he filed a petition for resentencing under the then newly
enacted Penal Code section 1170.95, unlabeled statutory references refer to this code.
The court filed an order to show cause and held an evidentiary hearing, after which it
denied the petition.
On appeal, Perez argues there was insufficient evidence to support the conclusion
he was a major participant in the underlying felony who acted with reckless indifference
to human life. We affirm.
I. FACTS
Over a four-month period, Phillip Walz led a group of four other men, including
Perez, on a crime spree targeting 12 different homes and businesses for robbery and other
crimes. Walz and his group terrorized whomever they found at each place and, among
other things, perpetrated sex offenses upon two victims and shot three others, fatally
wounding one. The jury found Perez was with Walz when the last victim was murdered,
and he was present during two earlier incidents.1
A. The April 22, 1983 Incident
On April 22, 1983, Perez and another man entered Christiaan I.’s home while he,
his wife, two sons, two of his brothers, and his sister-in-law were having dinner. Perez
1 The facts are taken from this court’s prior nonpublished opinion in defendant’s
prior appeal, case No. E01582, which is part of the record on appeal in this case. (People
v. Perez (Sept. 5, 1986, E001582) [nonpub. opn.].)
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was armed with a shotgun. The other man was armed with a handgun, was more violent,
and did most of the talking. One of the witnesses later identified him as Walz.
Walz threatened to kill members of the family and struck Christiaan’s brother
Eugene twice in the face with a handgun, breaking his nose. Walz then separated
Christiaan from the rest of his family, handcuffed him, and put a gun to his head. Perez
and Walz stole personal belongings, including jewelry, from the family members. When
Christiaan’s wife had trouble getting her wedding ring off, Walz threatened to cut off her
finger. Walz became more violent throughout the robbery. While Walz did most of the
talking, Perez covered the family with his shotgun.
Christiaan told Walz they were expecting company, and that he and Perez could
leave because they had all the family’s valuables. Walz said if more people were coming
that was even better. He and Perez waited for the other guests to arrive. The guests,
Ronnie and his son Baudy, eventually came to the front door, but Ronnie became
suspicious and told his son to run. As Baudy attempted to run, one of the two men hit him
over the head, causing him to collapse. Christiaan didn’t see who hit Baudy, but he and
another witness both heard Perez say, “I think he’s dead,” and tell Walz they should
leave.
B. The April 24, 1983 Incident
On April 24, 1983, Perez and another man entered the home of Kenneth and
Gretchen G. while they were watching television. Kenneth later identified the other man
as Quillen. According to Kenneth, Quillen was loud and aggressive and did most of the
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talking. Quillen held a gun to Kenneth’s head and a knife to his throat and threatened to
kill him. The men told Kenneth to lie down on the floor face-first, and when he did so
they hog-tied him using objects from the home. Both men threatened Kenneth with death
multiple times and would kick him if he responded to a question in a way they didn’t like.
They stole jewelry and cash. At one point, Quillen put his gun to Kenneth’s head and said
he would shoot if Kenneth didn’t say where his Versatel card was by the count of five.
Quillen began counting, and Kenneth heard the gun’s chamber rotating, but Quillen
ultimately didn’t fire. At another point, Quillen threw his gun down next to Kenneth and
said he would kill him before he could reach the gun because Quillen was young and
strong and Kenneth was an old man.
Quillen took Gretchen to the bedroom, and after finding a couple additional small
items of value punched her in the face for holding out. Later, he took her to another
bedroom, pointed his gun at her, told her to take off her pants, and ordered her to perform
oral sex on him or else she would have to have sex with him. He said if she didn’t do as
he said they would kill her and her husband. He then raped Gretchen. After Quillen tied
her hands behind her back, Perez also raped her at gunpoint. Both men threatened to
shoot her if she didn’t stop crying while Perez raped her.
C. The April 29, 1983 Incident
On April 29, 1983, Michael and Georgia H. returned home with their 10-month-
old grandson around 10:30 at night. After bringing their grandson inside, Georgia told
Michael to go back out to the garage to get the diaper bag. After Michael left, Georgia
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heard a lot of noise in the garage and then a scream. Immediately after hearing the noises
Perez entered the house, approached Georgia, put a gun to her head and ordered her into
the bedroom. Georgia then heard two gunshots in the garage. Perez ran into the garage,
and Georgia barricaded herself and her grandson in a bedroom.
Michael died from the gunshot wounds. He suffered two gunshot wounds, one to
the head and one to the chest. Both wounds would have been fatal, though the gunshot
wound to the head would’ve killed him much more quickly.
Later that evening, Perez and Walz went to Jeffrey O.’s apartment. Perez told him
he saw Walz and Michael struggling, but assumed Walz could handle it and ran into the
house instead. Walz told Jeffrey O. that Michael pulled his mask off during the struggle.
Michael said he’d seen Walz’s face, so Walz shot him twice. Walz believed he missed
the first shot but knew the second one hit Michael’s head.
D. Arrest, Statements to Police, and Testimony
Police questioned Perez in early May 1983. They recorded the interview, and the
People played this recording for the jury.
After initially denying any involvement, Perez eventually admitted that he, Walz,
and another man were involved. He said Walz and another man picked him up, and they
drove by Michael’s house and saw he and his wife were home. They pulled back around
to the house, and when they got nearby Walz handed Perez a gun and a mask. He and
Walz left the car, with Walz going to the garage and Perez going to the house. Before he
entered the house, Perez saw Walz and Michael struggling over the gun. He also said he
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left the house to go to the garage after he heard a single gunshot. He asked Walz, “What
the fuck are you doing?” and “ ‘What did you do?’ ” He also told the police he “shot one
off at, Damn, you stupid motherfuckers.” He said he saw Walz point the gun at Michael
and yelled “ ‘No’ ” before Walz fired a second shot. He took off running before he even
saw Michael fall.
E. Procedural History
“[On September 5, 1984], [a] jury convicted [] Perez of first degree murder . . . ,
conspiracy to rob and burgle . . . , eight counts of robbery of an inhabited dwelling . . . ,
three counts of residential burglary . . . , and one count each of attempted robbery of an
inhabited dwelling . . . , rape in concert . . . and receiving stolen property. The jury further
found gun use allegations . . . as to all crimes except the conspiracy and receiving stolen
property.”
The judge sentenced Perez to a determinate term of 32 years eight months and a
consecutive indeterminate term of 25 years to life. Perez appealed, and on appeal this
court reversed one of his burglary convictions and stayed concurrent sentences for two
others.
On February 19, 2019, Perez filed a petition for resentencing under
section 1170.95. The trial judge determined the petition made a prima facie case and
ordered an evidentiary hearing on the merits. The judge held the hearing on October 2,
2020, and denied the petition. In doing so it found “beyond a reasonable doubt that []
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Perez was a major participant in this crime . . . who acted with reckless indifference to
human life.”
Perez appealed.
II. ANALYSIS
Perez argues he is entitled to relief under section 1170.95 because he was not the
actual killer and there was insufficient evidence he was a major participant in the
underlying felony and that he acted with reckless indifference to human life.
Senate Bill No. 1437, which became effective on January 1, 2019, “addresses
certain aspects of California law regarding felony murder and the natural and probable
consequences doctrine by amending Penal Code sections 188 and 189.” (People v.
Martinez (2019) 31 Cal.App.5th 719, 722.) Under section 189 as amended, “a participant
in enumerated crimes is liable under the felony-murder doctrine only if he or she was the
actual killer; or, with the intent to kill, aided and abetted the actual killer in commission
of first degree murder; or was a major participant in the underlying felony and acted with
reckless indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749,
review granted Nov. 26, 2019, S258234.)
In order to seek resentencing under section 1170.95, a petitioner must first file a
petition meeting certain standards and alleging they are eligible for relief. (§ 1170.95,
subds. (a), (c).) If the petitioner would be entitled to relief were his factual allegations
true, the judge must then issue an order to show cause. (People v. Lewis (2021) 11
Cal.5th 952, 971.) Once the judge has issued an order to show cause, they must hold “a
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hearing to determine whether to vacate the murder conviction and to recall the sentence
and resentence the petitioner.” (§ 1170.95, subd. (d)(1).) “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).)
The People point out that there is a split in authority regarding how the reasonable
doubt standard should be applied—that is, whether the People must prove that a jury
could find a petitioner guilty under the new law or whether they must prove actual guilt.
(See, e.g., People v. Duke (2020) 55 Cal.App.5th 113, review granted Jan. 13, 2021,
S265309; cf. People v. Clements (2021) 60 Cal.App.5th 597, review granted Apr. 28,
2021, S267624.) However, this court has previously held that “the People ha[ve] the
burden to prove the record of conviction and any new or additional evidence the parties
submit establish beyond a reasonable doubt that [the petitioner] committed murder under
the amended law.” (People v. Clements, at p. 614.) Though that decision is currently
under review, we see no reason to depart from our reasoning in that case.
When reviewing a sufficiency of the evidence claim, we must determine
“ ‘ “whether, on the entire record, a rational trier of fact could find the defendant guilty
beyond a reasonable doubt.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739; People
v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is “evidence which is
reasonable, credible, and of solid value.” (People v. Johnson, at p. 578.) We view the
evidence in a light most favorable to the judgment and “resolve all evidentiary conflicts
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and questions of credibility ‘in favor of the verdict.’ ” (People v. Brady (2018) 22
Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-
227.) We may not reverse the judgment “unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v.
Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745,
755.)
A. The Tison-Enmund Spectrum
The language amended section 189 uses to identify who is still liable for felony
murder now—someone who was “a major participant in the underlying felony and acted
with reckless indifference to human life”—comes out of two United States Supreme
Court cases that considered when the death penalty could be used against people
convicted of murder who were not the actual killers. These two cases are Enmund v.
Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137(Tison). Both involved defendants who were not the actual killers but who participated in
an underlying felony during which one of their codefendants killed. In both cases the
defendants were sentenced to death, and the court was asked to determine whether the
death penalty could apply to those only vicariously liable for a killing.
Our Supreme Court adopted this standard to assess culpability in two cases,
People v. Banks (2015) 61 Cal.4th 788, 794 (Banks) and People v. Clark (2016) 63
Cal.4th 522 (Clark). Thus, assessing whether a defendant was a major participant who
acted with reckless indifference to human life requires us to consider both the United
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States Supreme Court’s explanation of this standard and our own Supreme Court’s
clarification.
In Enmund the defendant “drove two armed confederates to [Thomas] Kersey’s
house and waited nearby while they entered. When Kersey’s wife appeared with a gun,
the confederates shot and killed both Kerseys. Enmund thereafter drove his confederates
away from the scene and helped dispose of the murder weapons.” (Banks, supra, 61
Cal.4th at p. 799.) The United States Supreme Court reversed Enmund’s death sentence
and “held the Eighth Amendment bars the death penalty for any felony-murder aider and
abettor ‘who does not himself kill, attempt to kill, or intend that a killing take place or
that lethal force will be employed.’ ” (Ibid.)
In contrast, in Tison, “Prisoner Gary Tison’s sons Ricky, Raymond, and Donald
Tison conducted an armed breakout of Gary and his cellmate from prison, holding guards
and visitors at gunpoint. During the subsequent escape, their car, already down to its
spare tire, suffered another flat, so the five men agreed to flag down a passing motorist in
order to steal a replacement car. Raymond waved down a family of four; the others then
emerged from hiding and captured the family at gunpoint. Raymond and Donald drove
the family into the desert in the Tisons’ original car with the others following. . . . Gary
and his cellmate then killed all four family members.” (Banks, supra, 61 Cal.4th at
p. 799.) In that case the United States Supreme Court laid out a spectrum of culpability,
with minor actors like Enmund on one side and actual, intentional, or attempted killers on
the other. (Tison, supra, 481 U.S. at pp. 149-150.) Between those two extremes, “major
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participation in the felony committed, combined with reckless indifference to human life,
is sufficient to satisfy the Enmund culpability requirement” in order to apply the death
penalty. (Id. at p. 158.) The court concluded that the Tisons met this standard, and
therefore the constitution did not prohibit sentencing them to death.
Thus, Tison and Enmund establish two points along a spectrum of culpability. On
one end is Enmund, the quintessential getaway driver, who could not be put to death over
his involvement in the felony which resulted in two deaths. Somewhere further along are
the Tisons, who the court concluded could be put to death because they were major
participants in the underlying felony who acted with reckless indifference to human life.
In Banks and Clark, our Supreme Court considered this spectrum in the context of
California’s death penalty. In doing so, it clarified what constituted “major participation”
and “reckless indifference to human life” under California law for these purposes. Thus,
though Banks and Clark predate the enactment of Senate Bill No. 1437 and
section 1170.95, they are the leading cases in defining the elements necessary to find that
a given defendant is still liable for murder under the now much restricted qualifications.
B. Major Participation
In Banks, supra, 61 Cal.4th at p. 794, our Supreme Court considered “under what
circumstances an accomplice who lacks the intent to kill may qualify as a major
participant.” The court counseled that “ ‘major participation’ should be understood as the
phrase is used in common parlance, as including those whose involvement is ‘ “notable
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or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important
members . . . of a . . . group.” ’ ” (Id. at p. 800.)
Our Supreme Court concluded that “Tison and Enmund establish that a
defendant’s personal involvement must be substantial, greater than the actions of an
ordinary aider and abettor to an ordinary felony murder such as Earl Enmund.” (Banks,
supra, 61 Cal.4th at p. 802.) The court set out a number of factors relevant to assessing
whether a given defendant met these criterion, namely: “What role did the defendant have
in planning the criminal enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What awareness did the defendant
have of particular dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the defendant present at the scene of
the killing, in a position to facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did the defendant do after
lethal force was used? No one of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the ultimate question, whether
the defendant’s participation ‘in criminal activities known to carry a grave risk of death’
[citation] was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.)
Given this standard, and viewing the evidence in the light most favorable to the
judgment, we are inclined to agree with the trial judge that “there can’t be any significant
argument that [Perez] wasn’t a major participant.” Perez participated in multiple home
invasion burglaries prior to the killing, including at least one with the actual killer Walz.
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In all of these the men were armed, they attacked the victims, and they used the threat of
death to subdue their victims. Perez and an accomplice also raped one of their prior
victims, both threatening to kill her if she didn’t comply. Most importantly, Perez was
involved in a prior incident in which he believed they might have killed one of their
victims, and still went out with Walz after that. Given this, Perez unquestionably had
“awareness . . . of particular dangers posed by the nature of the crime, weapons used, or
past experience or conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803.)
With regard to planning, the evidence suggests that the planning for these crimes
was minimal, as the men simply drove around until one or more identified a home they
wanted to attack. However, this lack of planning increases Perez’s culpability, since his
participation in what little planning there was is necessarily amplified. Thus, though
Perez was the subordinate in all of these crimes, he nevertheless seems to have actively
participated in what planning actually occurred by going out with the others with the
intention of burglarizing some home.
Finally, Perez’s actions after the fact also weigh against him. After Walz killed
Michael, Perez made no effort to render aid or come clean. Indeed, Perez left before
Michael hit the ground, before he could even confirm Michael’s state.
Nevertheless, Perez points to the Banks factors that do not fit his conduct to argue
he was not a major participant. In particular, Perez argues the evidence shows he didn’t
supply the weapons and didn’t cause nor was he in a position to stop the killing. Perez
also argues that his awareness of the dangers of the crimes was minimal, since his
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previous participation in crimes which didn’t result in death may have lulled him into a
belief that death was not a serious threat. Finally, he claims the evidence is unclear
whether either of the prior two incidents involved Walz—only one victim identified Walz
in connection with the first incident and nobody identified Walz in connection with the
second. Therefore, Perez argues, he was not sufficiently aware of the particular danger
Walz posed.
But this misses the forest for the trees. As Banks itself acknowledges, not every
factor needs to be present. The overriding question, which the Banks factors help answer,
is whether “a defendant’s personal involvement” was “substantial, greater than the
actions of an ordinary aider and abettor to an ordinary felony murder,” with the actions of
the Tisons and Enmund as points on a spectrum. (Banks, supra, 61 Cal.4th at p. 802.)
Perez’s actions undoubtedly fall closer to those of the Tisons than Enmund. Perez’s
active, willing, intentional participation in an armed residential burglary, knowing at least
two people were in the home, and his actual use of the threat of death against at least one
of the residents, makes him much more culpable than a simple getaway driver.
Moreover, his claims regarding his insufficient awareness of Walz’s previous
violence are unsupported by the evidence. While it’s true only one victim identified Walz
in connection with the first burglary, that is sufficient for the trial judge to have
concluded Walz was involved. During this incident, either Walz or Perez hit one of their
victims hard enough that Perez thought they’d killed him. Walz also became increasingly
violent throughout the burglary, openly welcomed the arrival of more victims, and both
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he and Perez lay in wait for those victims’ arrival. The evidence was thus sufficient for
the trial court to conclude Perez was apprised “of particular dangers posed by. . . past
experience or conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803.)
C. Reckless Indifference to Human Life
Turning to the second portion of the Tison-Enmund standard—that a felony
murderer must have acted “with reckless indifference to human life”—our Supreme
Court clarified the level of mental culpability required in Clark. In that case our Supreme
Court summarized the United States Supreme Court’s standard as “encompass[ing] a
willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome of his actions.” (Clark,
supra, 63 Cal.4th at p. 617.) The court cited the Model Penal Code’s definition of
recklessness approvingly, which requires a person “ ‘consciously disregard[] a substantial
and unjustifiable risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering the nature and purpose of the
actor’s conduct and the circumstances known to him, its disregard involves a gross
deviation from the standard of conduct that a law-abiding person would observe in the
actor’s situation.’ ” (Ibid.) “This definition encompasses both subjective and objective
elements. The subjective element is the defendant’s conscious disregard of risks known
to him or her. But recklessness is not determined merely by reference to a defendant’s
subjective feeling that he or she is engaging in risky activities. Rather, recklessness is
15
also determined by an objective standard, namely what ‘a law-abiding person would
observe in the actor’s situation.’ ” (Ibid.)
In order to aid courts and juries considering whether a defendant acted with
reckless indifference to human life, the court offered another list of nonexclusive factors,
much like it did in Banks. These factors are (1) the defendant’s “[k]nowledge of
[w]eapons, and [u]se and [n]umber of [w]eapons;” (2) their physical presence at the
crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the
felony; (4) the defendant’s knowledge of the likelihood his cohorts will kill; and (5) their
efforts to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at
pp. 618-621.) The court made clear that as with the Banks factors that “ ‘[n]o one of these
considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Id. at
p. 618.) Our colleagues in the First District have also recently held that “a defendant’s
youth is a relevant factor in determining whether the defendant acted with reckless
indifference to human life. Indeed, the ‘hallmark features’ of youth—‘among them,
immaturity, impetuosity, and failure to appreciate risks and consequences’—are arguably
more germane to a juvenile’s mental state than to his or her conduct.” (In re Moore
(2021) 68 Cal.App.5th 434, 454 (Moore).)
Given these factors, we conclude substantial evidence exists to support the trial
judge’s conclusion that Perez acted with reckless indifference to human life. Perez knew
that both he and his accomplice were armed with guns, saw Walz use his gun to threaten
Michael, and used his own gun to threaten Georgia. Though Perez wasn’t physically
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present when Walz shot Michael, Perez saw Walz fighting with Michael and didn’t try to
help the victim or restrain his partner. Indeed, Perez made no effort whatsoever to
minimize the risks of violence—in fact, the entire plan seems to have hinged on
maximizing violence in order to overwhelm the already surprised victims and compel
compliance. Walz intentionally picked a home invasion target where he knew people
were home, and Perez willingly went along with this plan. The evidence is not only
sufficient to conclude Perez made no effort to restrain the violence of the crime—it is
sufficient to conclude that violence was the point.
Perez argues that certain of the factors suggest finding he didn’t act with reckless
indifference. He argues he didn’t have knowledge of Walz’s violent tendencies. He points
out that he wasn’t present when Walz shot Michael the first time—which would have
been a fatal shot on its own—and may have implored Walz not to fire a second time.
Finally, he argues his age must be taken into account in weighing each of these factors.
We have already addressed many of Perez’s arguments regarding his knowledge
of Walz’s violent tendencies above. Suffice it to say, the evidence was sufficient for the
court to conclude Walz and Perez worked together during the April 22, 1983 incident to
terrorize a family and their friends, and that Perez had more than enough advance notice
that Walz was willing, even eager, to use violence—whether necessary or not.
As for Perez not being physically able to stop the killing, we agree that Perez’s
absence during the actual killing, and his apparent objection to the killing, are minimally
mitigating factors. While Perez is culpable for failing to intervene and stop the fight
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between Michael and Walz which ultimately led to Michael’s death, the evidence is
otherwise clear that he was inside the house when Walz first fatally shot Michael.
However, we disagree that this sole mitigating factor means there was insufficient
evidence to conclude Perez acted with reckless indifference. As we’ve described above,
even assuming Perez didn’t intend the killing and either attempted to stop Walz or
chastised Walz after the fact, this doesn’t change the fact there is ample evidence Perez
otherwise consciously disregarded a substantial and unjustifiable risk of death, and that
his conduct involved “a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation.” (Clark, supra, 63 Cal.4th at p. 617.)
We also disagree that Perez’s age sufficiently reduces his culpability. Perez was
20 years old at the time of the crimes. This is young enough that the law recognizes this
may reduce culpability in some circumstances. (See, e.g. § 3051, subds. (a)(1), (b)
[allowing youth offender parole hearings for those under 25 “at the time of the
controlling offense”].) We also agree with our colleagues in the First District that a judge
should take young age into account when determining a defendant’s mental culpability.
(See Moore, supra, 68 Cal.App.5th at p. 454.)
However, this case is distinguishable from cases finding age was an important
factor because though Perez was young, he was still an adult. For instance, Moore
concerned a defendant who was only 16 when he and his accomplice spontaneously
decided to rob three people in a parking lot, and his accomplice shot one of the victims
unprovoked. (Moore, supra, 68 Cal.App.5th at p. 453.) In People v. Harris (2021) 60
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Cal.App.5th 939, 944, the defendant was 17 when he participated in a firebombing that
killed two children. Both of these cases involved minors who were at least three years
younger than Perez at the time of their crimes.
Moreover, the evidence is sufficient to conclude Perez had enough mental
culpability even taking into account his young age. Perez acted independently of Walz to
threaten one of the victims; there is no evidence he was under duress or was otherwise
being manipulated by Walz due to his age. The violence was not wholly unexpected, nor
entirely spontaneous, and the evidence is sufficient to show that Perez participated with
an understanding that violence and the threat of serious harm was an integral part of the
criminal enterprise. This was not a spur of the moment robbery that ended in an
impetuous, unprovoked, apparently thoughtless killing as in Moore. This was an armed
home invasion which Perez and Walz embarked on with full knowledge that the residents
were home and with every intention of violently subduing them. Perez didn’t need
“ ‘ “experience, perspective, and judgment” ’ to adequately appreciate the risk of death
posed by his criminal activities.” (Moore, supra, 68 Cal.App.5th at p. 454.)
Accordingly, we conclude there was sufficient evidence to support the trial judge’s
finding that Perez was a major participant in the underlying crime who acted with
reckless indifference to human life, and that he was therefore not entitled to resentencing
under section 1170.95.
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III. DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.
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