People v. Perez CA2/3 ( 2024 )

Filed 1/8/24 P. v. Perez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B324095
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113936)
v.
ERIK ARMENTA PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mike Camacho, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Erik Perez appeals from an order denying his petition for
resentencing under Penal Code1 section 1172.6,2 which limits
accomplice liability for murder. Erik3 concedes he was not
convicted under a now-invalid theory of felony murder or the
natural and probable consequences doctrine. Instead, he
contends he was convicted based on a theory under which malice
was improperly imputed to him. We disagree and affirm the
order.
BACKGROUND
I. The underlying crime
Our summary of the evidence underlying the murder is
from the opinion affirming Erik’s and Omar’s judgment of
conviction, People v. Perez (Jan. 28, 2021, B296242) [nonpub.
opn].
“1. Background information
“Appellant Omar is appellant Erik’s uncle, and is three
years older than Erik. Approximately a month and a half before
the charged murder, Erik moved to California from Arizona and
began staying in Omar’s home. Prior to that time, the men had
met only twice.
“The victim, Alberto Calvillo, and Karen Salinas were
engaged to be married and had two young children together.
1
All further undesignated statutory references are to the
Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3
Because Erik Perez and Omar Perez share a surname, we
refer to them by their first names to avoid confusion.
2
“2. People’s evidence
“a. The murder
“On the evening of November 6, 2016, Calvillo and Salinas,
accompanied by Salinas’s cousin Ernesto and her friend Lizeth,
went to the Mariscos Uruapan restaurant in Baldwin Park
(hereinafter ‘Mariscos’). In addition to serving food, Mariscos
offered live music. Mariscos was equipped with a video
surveillance system, with cameras both inside and outside of the
restaurant.
“Erik and Omar also patronized Mariscos that evening, and
sat at a table near Calvillo’s group. Juan Serrano, another
restaurant patron, spent approximately a half hour drinking,
dancing, and eating at [Erik’s and Omar’s] table after his original
dining companions left for the evening. He had not met ...
appellant previously. Erik and Omar had no confrontation or
issue with Calvillo while inside the restaurant.
“Shortly before 11:00 p.m., Salinas began feeling unwell.
She and Calvillo stepped outside so she could get some fresh air.
In front of the restaurant’s entrance was a small, tiled area. A
ramp led down from the entrance to the parking lot.
Perpendicular to the ramp, some stairs led out to Ramona
Boulevard. Calvillo and Salinas stood on the stairs, with Calvillo
a step from the top.
“As Calvillo and Salinas talked on the stairs, Erik, Omar,
and Serrano came outside and stood near them at the top of the
ramp. Omar loudly made derogatory remarks about women,
including that all women were ‘gold diggers’ and ‘whores’ who
only wanted money. He appeared angry and agitated. Calvillo
told the men several times, ‘Shut up. You guys are drunk.’
Someone from Omar’s group said that they were not talking
3
about Salinas. But, one of the men then pointed at Salinas, and
one of them said, ‘Well, look at your girl. Look at what she’s
wearing.’ Omar said to Erik several times, ‘Go get the 9.’ Erik
left the group and went to the parking lot.
“Calvillo stepped up to the top of the ramp where Omar and
Serrano were, approximately three feet away from them.
Serrano tried to calm Omar down. Salinas stepped in front of
Calvillo and tried to convince him to go inside. He refused,
saying he was not going to fight and was not going to start
anything, but was not going to ‘go inside and look like a bitch,’
either. He told Salinas to go back in the restaurant and get her
cousin Ernesto. She did.
“Meanwhile, Erik walked through the parking lot, entered
a Toyota Camry, and drove it to the driveway in front of the
restaurant. He left the engine running, and remained in the car.
When the Camry pulled up, Omar ran down the ramp to the car.
Erik opened the door and handed Omar a gun. Omar then ran
back up the ramp to the front of the restaurant, shot Calvillo
multiple times, ran back down the ramp to the Camry, and
entered the front passenger seat. Erik drove them from the
scene.
“Salinas heard screaming and went back outside, where
she found Calvillo on the ground, having difficulty breathing.
Her friend Lizeth attempted to put pressure on Calvillo’s gunshot
wounds, while Salinas held Calvillo’s hands. Calvillo was
transported to a hospital, but did not survive.
“The entire incident, from when appellants came outside
until the shooting, lasted just over three minutes.
4
“b. The investigation
“Police officers stopped the Camry within 15 minutes of the
murder. In a field show-up, Salinas identified both appellants,
who were arrested.
“Police found 9 nine-millimeter Aguila casings at the scene.
Three additional nine-millimeter casings were found in the
Camry.[4] A Browning Arms, high-powered, nine-millimeter
semiautomatic handgun was found hidden in the center console
beneath the gearshift. A firearms examiner opined that the gun
in the Camry discharged all the casings found at the murder
scene and inside the car, as well as three bullet fragments
recovered from Calvillo’s body. Gunshot residue was found on
[Erik’s and Omar’s] hands. Erik’s DNA was found on the gun’s
grip, as well as on the three casings found in the Camry.
“After [Erik’s and Omar’s] arrests, Erik was seated in a
police car for 10 to 15 minutes. On the floor in front of Erik’s
seat, officers found four small baggies containing
methamphetamine. A detective opined that the
methamphetamine was possessed for the purpose of sale, but
acknowledged that ‘users also sell.’ Omar had in his possession
two baggies containing cocaine.
“Calvillo suffered five gunshot wounds to his shoulder, left
chest, abdomen, and right leg. The shoulder and chest wounds
were fatal. His toxicology report tested negative for alcohol but
positive for methamphetamine and its metabolite.
4
Erik testified that earlier on the day of the shooting, Omar
had fired the gun several times while in the Camry. The casings
found in the car were a result of that shooting.
5
“3. Defense evidence
“a. Erik’s testimony
“Erik testified in his own behalf, as follows. On the day of
the shooting, at 3:00 p.m., he and Omar consumed approximately
a half bottle of tequila while at home. At about 4:00 p.m., they
went to Ramada, a ‘dance place’ in Baldwin Park, to drink and
celebrate the impending birth of his child. Erik drove them
there. At Ramada, the men drank beer and used ‘a lot’ of cocaine
in the restroom; they also ingested methamphetamine. They met
two women, Guadalupe M. and her friend, whom they had never
met before. The women declined their requests to dance because
the music was not good. The men suggested the women
accompany them to a different restaurant, but they refused and
said they were going to Mariscos. When the women left, Erik and
Omar also went to Mariscos.
“At Mariscos, Guadalupe and her friend sat at Omar and
Erik’s table. Erik flirted and danced with Guadalupe, while
Omar directed his attentions to the friend. Erik and Omar
bought the women drinks, and Omar bought them flowers. At
some point thereafter, the women left the restaurant. Erik
walked with them to their car, unsuccessfully trying to persuade
them to stay.
“While at Mariscos, Omar and Erik ordered several buckets
of beer. Omar ingested cocaine at the table. Erik also used
cocaine, but in the restroom. The men also used
methamphetamine. They had no ‘problems’ with anyone while
inside the restaurant.
“Around 11:00 p.m., Omar, Erik, and Serrano walked
outside and stood at the top of the ramp, near Calvillo and
Salinas. Omar was upset that Guadalupe and her friend had left.
6
Referring to the women, Omar loudly talked about women being
‘completely worthless’ and only caring about money. Calvillo got
upset because he believed Omar was talking about Salinas. He
began arguing with Omar. Omar apologized and stated he was
not referring to Salinas. Calvillo, who was a big man and looked
angry, stepped toward them, stood over Erik, and threatened to
‘beat the fuckin’ shit out of’ them. Erik thought Calvillo wanted
to hit them and fight, and was afraid. Salinas tried to separate
Calvillo from the men and convince him to go inside, but he
refused. Calvillo told Salinas to go get her cousin. Omar told
Erik to ‘go get the 9,’ which Erik understood to mean Omar’s
nine-millimeter firearm that was hidden inside the Camry’s
center console. Omar did not say that he intended to kill Calvillo.
“Erik went to get the gun. He walked to the Camry in the
parking lot, during which time he could hear Omar and Calvillo
arguing loudly. He sat inside the Camry for approximately a half
minute, retrieving the gun. He then executed a three-point turn
in order to get to the front of the restaurant and drove to the
driveway area near the bottom of the ramp. When Omar ran
down to the car, Erik handed him the gun and remained inside.
He heard multiple gunshots. Omar returned to the car, and Erik
drove them away from the scene.
“Erik explained he retrieved the gun because he was afraid
Calvillo was going to ‘do something’ to him and Omar, and
‘because of the drugs.’ He did not know or intend that Omar
would kill Calvillo.
“b. Expert testimony
“Dr. John Budny, an expert in the fields of toxicology,
pharmacology and biochemistry, testified regarding the effects of
drugs and alcohol on the human body. Alcohol, cocaine, and
7
methamphetamine affect cognitive and psychomotor functions.
Alcohol lessens a person’s ‘control mechanisms,’ and
methamphetamine can cause aggression and paranoia. All three
substances affect a person’s ability to reason and reflect on their
actions. Persons under the influence of alcohol,
methamphetamine, and cocaine would have ‘grossly impaired’
cognitive functions and would be impulsive, unable to think
through their actions, and unable to carefully consider prior to
making a decision. The effect of such substances on any
individual user depends on numerous variables, including the
person’s metabolism, how much they have eaten, and their
tolerance for the substance. A person could be cognitively
impaired yet still be able to drive a car. Budny could not
definitively opine as to appellants’ level of impairment or how the
drug and alcohol use affected them. However, based on the
amounts of alcohol appellants reported consuming, they would
have been under the influence for purposes of California’s driving
laws.
“Calvillo’s autopsy report indicated he had levels of
methamphetamine in his blood that could cause behavioral
changes such as agitation and restlessness.”
II. Erik’s conviction and sentence
At Erik and Omar’s joint trial, the People’s theory of the
case was that Omar was the actual killer and Erik was the direct
aider and abettor. In accordance with that theory, a jury
convicted Erik and Omar of willful, deliberate, and premeditated
first degree murder (§ 187, subd. (a)), with a true finding that
Omar personally and intentionally discharged a firearm,
proximately causing great bodily injury and death (§§ 12022.53,
subds. (b), (c), (d), 12022.5, subd. (a)(1)). As to Erik, it found a
8
principal-armed allegation true. (§ 12022, subd. (a)(1).) The trial
court sentenced Erik to 25 years to life in prison.
III. Postconviction proceedings
In 2021, Erik filed a form petition for resentencing under
section 1172.6. Private counsel represented Erik on the petition.
The People opposed the petition on the ground Erik was not
convicted based on felony murder or the natural and probable
consequences doctrine but was instead convicted on a direct
aiding and abetting theory. In response, Erik contended he was
convicted under a theory by which malice was imputed to him
based solely on his participation in the crime. The trial court
denied the petition, finding that Erik was necessarily convicted of
murder under a direct aiding and abetting theory.
DISCUSSION
I. Overview of Senate Bill No. 1437
To the end of ensuring a person’s sentence is commensurate
with the person’s individual criminal culpability, Senate Bill
No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability
under the felony-murder rule, eliminated the natural and
probable consequences doctrine as it relates to murder, and
eliminated convictions for murder based on a theory under which
malice is imputed to a person based solely on that person’s
participation in a crime. (See generally People v. Reyes (2023) 14
Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959;
People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill
No. 1437 added section 189, subdivision (e) (limiting application
of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed
9
to a person based solely on his or her participation in a crime.”).
As amended by Senate Bill No. 775, effective January 1, 2022,
these ameliorative changes to the law now expressly apply to
attempted murder and voluntary manslaughter.
Senate Bill No. 1437 also created a procedure, codified at
section 1172.6, for a person convicted of murder, attempted
murder, or voluntary manslaughter under the former law to be
resentenced if the person could no longer be convicted of those
crimes under the current law. (People v. Lewis, supra, 11 Cal.5th
at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A
defendant commences that procedure by filing a petition
containing a declaration that, among other things, the defendant
could not presently be convicted of murder, attempted murder, or
voluntary manslaughter under the current law. (People v. Strong
(2022) 13 Cal.5th 698, 708 (Strong).)
At the prima facie stage, the trial court takes as true the
petitioner’s factual allegations and assesses whether the
petitioner would be entitled to relief if those allegations were
proved. (People v. Lewis, supra, 11 Cal.5th at p. 971.) In
determining whether the petitioner has made a prima facie case
for relief, the trial court may look at the record of conviction,
including jury instructions, verdicts and closing argument, to
determine readily ascertainable facts such as the crime of
conviction. (People v. Duchine (2021) 60 Cal.App.5th 798, 815;
see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) At the
prima facie stage, the trial court does not engage in fact finding
that involves the weighing of evidence or exercise of discretion.
(Lewis, at p. 972.) If a petition establishes a prima facie case for
relief, the trial court must appoint counsel if requested, issue an
10
order to show cause, and hold an evidentiary hearing. (§ 1172.6,
subds. (b)(3), (c), & (d)(1).)
II. Erik was not convicted of murder under an invalid theory
Erik contends he established a prima facie case for relief
because the jury instructions on aiding and abetting and the trial
court’s responses to jury questions allowed the jury to impute
malice to him based solely on his participation in the crime. We
disagree.
A. Governing principles and jury instructions
Murder is the unlawful killing of a human with malice
aforethought. (§ 187, subd. (a).) Malice is express “when there is
manifested a deliberate intention to unlawfully take away the life
of a fellow creature.” (§ 188, subd. (a)(1).) Malice is implied
“when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and
malignant heart.” (§ 188, subd. (a)(2).) First degree murder
occurs when the murder is willful, premeditated, and deliberate.
(§ 189, subd. (a).)
A defendant is liable as a direct aider and abettor of
express malice murder if the defendant aided or encouraged the
murder with knowledge of the perpetrator’s unlawful purpose
and with the intent or purpose of committing, encouraging, or
facilitating the murder’s commission. (In re Lopez (2023) 14
Cal.5th 562, 579; People v. McCoy (2001) 25 Cal.4th 1111, 1122
[direct aiding and abetting is based on participants’ combined
actus reus and aider and abettor’s own mens rea].) When an
aider or abettor, acting with a personal mens rea of
premeditation and deliberation, knowingly and intentionally
11
assists another to kill someone, the aider and abettor is guilty of
first degree premeditated murder. (In re Lopez, at p. 579.)
In contrast, a defendant is liable as a direct aider and
abettor of implied malice murder if the defendant, by words or
conduct, aids the commission of a life-endangering act, not the
act’s result. (People v. Reyes, supra, 14 Cal.5th at p. 991.)
The direct aider and abettor must know that the perpetrator
intended to commit the act, intend to aid the perpetrator in
committing the act, know that the act is dangerous to human life,
and act in conscious disregard to human life. (Ibid.)
In accordance with these principles, the trial court here
instructed Erik’s jury on murder with CALCRIM No. 520: “To
prove that a defendant is guilty of this crime [murder], the People
must prove that: [¶] 1. The defendant committed an act that
caused the death of another person; [¶] AND [¶] 2. When the
defendant acted, he had a state of mind called malice
aforethought.” The instruction then stated that there are two
kinds of malice: express and implied, either of which is sufficient
to establish the state of mind for murder. The defendant had
express malice “if he unlawfully intended to kill” and implied
malice if he “intentionally committed an act”; the “natural and
probable consequences of the act were dangerous to human life”;
at “the time he acted, he knew his act was dangerous to human
life”; and he “deliberately acted with conscious disregard for
human life.”
The trial court also instructed the jury on willful,
deliberate, and premeditated murder with CALCRIM No. 521:
“A defendant is guilty of first degree murder if the People have
proved that he acted willfully, deliberately, and with
premeditation. The defendant acted willfully if he intended to
12
kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice, and knowing the
consequences, decided to kill. The defendant acted with
premeditation if he decided to kill before completing the act that
caused death.”
Finally, the trial court instructed the jury with the
standard direct aiding and abetting instruction, CALCRIM
No. 401: “To prove that defendant Eri[k] Perez is guilty of a
crime based on aiding and abetting that crime, the People must
prove that: [¶] 1. The perpetrator committed the crime; [¶] 2.
The defendant knew that the perpetrator intended to commit the
crime; [¶] 3. Before or during the commission of the crime, the
defendant intended to aid and abet the perpetrator in committing
the crime; AND [¶] 4. The defendant’s words or conduct did in
fact aid and abet the perpetrator’s commission of the crime. [¶]
Someone aids and abets a crime if he knows of the perpetrator’s
unlawful purpose and he specifically intends to, and does in fact,
aid, facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.”
B. The instructions did not permit the jury to impute malice
to Erik
Erik concedes that his jury was not instructed on felony
murder or the natural and probable consequences doctrine.
However, citing People v. Langi (2022) 73 Cal.App.5th 972(Langi), he argues that the instructions, CALCRIM No. 401 in
particular, nonetheless allowed the jury to impute malice to him
based on his participation in the crime.
In Langi, supra, 73 Cal.App.5th 972, Langi and three other
men beat the victim, who died from head trauma after falling and
hitting his head during the assault. Langi’s jury was instructed
13
on aiding and abetting with CALJIC No. 3.01 (which is
substantially similar to CALCRIM No. 401) and on second degree
murder with CALJIC No. 8.31. The jury found Langi guilty of
second degree murder, and the trial court summarily denied his
subsequent section 1172.6 petition. On appeal, the appellate
court found that Langi was entitled to an evidentiary hearing
because the instructions permitted him to be found guilty of
aiding and abetting second degree murder by improperly
imputing malice to him and without finding he personally acted
with malice.
The court explained that although the aiding and abetting
instruction stated that a person aids and abets a crime if the
person acts with knowledge of the perpetrator’s unlawful purpose
and with the intent or purpose to commit or encourage that
crime, “the second-degree-murder instruction specified that the
direct perpetrator of that crime need not act with the unlawful
intent of causing death.” (Langi, supra, 73 Cal.App.5th at
p. 982.) That is, “while the perpetrator must have deliberately
performed the fatal act ‘with knowledge of the danger to, and
with conscious disregard for, human life’ (CALJIC No. 8.31), his
purpose may have been only to strike or to injure, or conceivably
only to embarrass, the victim. Since the perpetrator’s purpose
need not have been to kill the victim, the aider and abettor’s
knowledge of that purpose similarly need not have been
knowledge that the perpetrator aimed to kill. If the perpetrator
need not have had ‘murderous intent,’ certainly the aider and
abettor need not have had such an intent.” (Id. at pp. 982–983.)
The instructions given permitted the jury to conclude that, to be
guilty as an aider and abettor of second degree murder, Langi
need only have intended to encourage the perpetrator’s
14
intentional act—punching the victim—whether or not Langi
intended to aid or encourage the victim’s killing, and whether or
not Langi personally knew of and disregarded the risk of such a
killing. (Id. at p. 983.) In short, the instructions permitted the
jury to find that the aider and abettor intended to help the
perpetrator commit an act—an assault, for example—without the
mental state of conscious disregard for human life. Langi
concluded that the instructions should have been tailored to state
that, to be guilty as a direct aider and abettor of second degree
murder, an accomplice must have acted with the mental state of
implied malice. (Ibid.; accord, People v. Powell (2021) 63
Cal.App.5th 689.)
Langi is distinguishable. Langi concerned a second degree
murder conviction, which can be accomplished with implied
malice. In contrast, Erik’s jury found him guilty of first degree
premeditated murder, which can only be accomplished with
express malice. Erik’s jury was instructed regarding
premeditation and deliberation. By finding Erik guilty of first
degree premeditated murder, the jury necessarily concluded he
harbored express malice and the elevated mens rea of
premeditation and deliberation, both of which require intent to
kill. (See also People v. Coley (2022) 77 Cal.App.5th 539, 547
[attempted murder conviction necessarily required intent to kill
finding]; cf. People v. Maldonado (2023) 87 Cal.App.5th 1257,
1259, 1262–1263 [jury instructions permitted conviction based on
imputed malice when defendant was convicted of first degree
lying-in-wait murder, which does not require intent to kill].)
We also find unpersuasive Erik’s argument that the jury
might have been confused about CALCRIM No. 401’s reference to
aiding and abetting “the crime.” He suggests that the jury could
15
have thought that “the crime” referred to something other than
murder, such as assault with a firearm. Unlike the Langi
defendant who was charged with robbery, battery, and murder,
Erik was charged only with having committed murder. His jury
could not have misunderstood that the reference to “the crime” in
CALCRIM No. 401 was to murder.
C. The jury questions do not show that the jury imputed
malice to Erik
Although the jury instructions did not allow the jury to
convict Erik by imputing malice to him, he argues that two
questions the jury asked during deliberations show it did just
that.5
The jury first asked, “Is Erik guilty of Murder 2 now?” In
response, the trial court reminded the jury that defendants were
presumed to be not guilty, so whether Erik was “guilty of murder
two now,” my “simple response is … only unless the jury finds
otherwise beyond a reasonable doubt. And until or unless a
unanimous decision is made by that jury as to Eri[k] in the crime
of murder, he is presumed to be not guilty.”
Second, the jury asked, “Is there a[n] option of Murder 2
besides 1st degree & voluntary manslaughter?” The trial court
responded, “Well, I don’t mean to be insulting by answering the
question this way but there is an option and the option is not
guilty. [¶] . . . The simple answer is yes, and it’s not guilty if the
jury finds that the evidence of the trial leaves you with a
5
The jury asked a third question, “What is imperfect
manslaughter?” The trial court said that there was a crime of
voluntary manslaughter but no crime of imperfect manslaughter,
and it reiterated the elements of imperfect self-defense.
16
reasonable doubt as to whether either one or both defendants are
guilty of murder, first-degree, second-degree, or voluntary
manslaughter. So there is an option and it would be not guilty.”
Erik analogizes these questions and responses to those in
People v. Nero (2010) 181 Cal.App.4th 504. The Nero jury
expressly asked if it could find the aider and abettor guilty of a
lesser crime and if an aider and abettor could “ ‘bear less
responsibility.’ ” (Id. at p. 519.) The trial court, however, said
only that the aider and abettor could be found not guilty. Nero
observed, “But the jury’s expressed concern was not whether it
could acquit the aider and abettor, but whether the aider and
abettor had to be found guilty of ‘the same level, murder two or
manslaughter, or could they be at a lower level?’ ” (Ibid.) In
response the trial court repeatedly read CALJIC No. 3.00, which
states principals are equally guilty. Based on those
circumstances, Nero, at page 520, found there was a reasonable
possibility the trial court’s response to the questions foreclosed
the jury from considering whether to find the aider and abettor
guilty of a lesser crime.
Similarly, the jury in People v. Loza (2012) 207 Cal.App.4th
332, 349, asked whether an aider and abettor’s state of mind
“need/should be considered” and whether it made “a difference
when considering the degrees of murder” that a person aids and
abets out of worry of an attack from the perpetrator. The trial
court simply told the jury to apply the evidence to the law as
instructed. (Ibid.)
The jury questions and trial court responses in Nero and
Loza are distinguishable. In those cases, the juries were clearly
asking about the aider and abettor’s mens rea and the trial
courts’ responses were inadequate. Here, we do not agree with
17
Erik that implicit in the jury’s questions was a belief he was not
as culpable as Omar, and therefore the trial court should have
explained he could be found guilty of a lesser crime than Omar.
It is unclear what the jury meant by the first question. Indeed, it
seems to reflect a basic misunderstanding of the jury’s role, which
is why the trial court appropriately responded that Erik was
presumed to be not guilty unless the jury unanimously agreed he
was guilty of murder. And unlike the questions in Nero and
Loza, the jury’s second question makes clear that the jury
understood it could convict Erik of something less than first
degree murder. The trial court therefore appropriately told the
jury its options were first degree murder, second degree murder,
voluntary manslaughter, or not guilty. We therefore do not agree
that the trial court’s responses to these questions foreclosed the
jury from finding Erik guilty of something other than first degree
murder or from considering his own mens rea or show that the
jury imputed malice to Erik.
III. The trial court did not improperly engage in fact finding
Erik next asserts that the trial court improperly engaged in
fact finding at the prima facie stage by failing to consider the
jury’s questions as evidence the jury imputed malice to Erik. It is
unclear how the failure to consider those questions can amount to
fact finding. In any event, we have rejected the argument that
those questions show that the jury imputed malice to Erik.
IV. Sufficiency of the evidence
Erik contends that even if he is ineligible for resentencing,
his murder conviction still must be reversed, because there was
insufficient evidence he had express or implied malice. As we
18
explain, this contention, which we previously rejected on direct
appeal, is not properly before us.
Erik cites Strong, supra, 13 Cal.5th 698, to support his
argument we may consider the sufficiency of the evidence to
support the murder conviction. Strong considered the
relationship between a section 1172.6 petition and People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522, cases which clarified and limited the concept of a
major participant in an underlying felony who acts with reckless
indifference to human life. Strong held that a pre-Banks and
Clark finding that a defendant was a major participant who acted
with reckless indifference to human life does not preclude a
defendant from making a prima facie showing of eligibility for
section 1172.6 relief. In so holding, the court noted that a
determination substantial evidence supported a murder
conviction “is not a basis for denying resentencing after an
evidentiary hearing” or for “denying a petitioner the opportunity
to have an evidentiary hearing in the first place.” (Strong, at p.
720.) By this, the court was merely saying that sufficiency of the
evidence generally to support a murder conviction is not the issue
on a petition for resentencing. Strong did not say or hold that a
defendant generally may relitigate sufficiency of the evidence
issues via a section 1172.6 petition.
Instead, courts have consistently found that section 1172.6
is not a vehicle to relitigate trial errors or issues already decided.
(See, e.g., People v. Coley, supra, 77 Cal.App.5th at p. 549 [§
1172.6 “is not a means by which a defendant can relitigate issues
already decided”]; People v. Farfan (2021) 71 Cal.App.5th 942,
947 [“mere filing” of § 1172.6 petition doesn’t afford petitioner
new opportunity to raise trial error claims or attack sufficiency of
19
evidence to support jury’s findings]; People v. DeHuff (2021) 63
Cal.App.5th 428, 438 [§ 1172.6 is not a direct appeal].) We
rejected Erik’s sufficiency of the evidence challenge on direct
appeal. (People v. Perez, supra, B296242.) We have no occasion
to reconsider that issue here.
DISPOSITION
The order denying Erik Perez’s Penal Code section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
ADAMS, J.
20