People v. Perry CA4/1 ( 2024 )

Filed 1/17/24 P. v. Perry CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081695
Plaintiff and Respondent,
v. (Super. Ct. No. SCD202276)
TYIERRE CHRISTIAN PERRY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Theodore M. Weathers, Judge. Affirmed.
Robert L.S. Angres, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina, Felicity Senoski and Christine Levingston Bergman,
Deputy Attorneys General for Plaintiff and Respondent.
INTRODUCTION
Tyierre Christian Perry appeals the order denying his Penal Code
section 1172.61 petition for vacatur and resentencing on his 2010 first degree
felony murder conviction. The trial court denied the petition without holding
an evidentiary hearing, finding Perry was ineligible for relief as a matter of
law because the record of conviction established he was the actual killer. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006, Spencer Watts was fatally killed with a single gunshot
wound to the back.2 The autopsy showed the bullet entered Watts’s back and
traveled through his right lung and heart. The People charged Perry with
Watts’s murder.
At trial, the People introduced evidence that Watts drove his car to a
parking lot, with his friend Keenan Wheeler in the front passenger seat, to
sell Ecstasy pills. Perry and a second male entered the back seat of Watts’s
car. Watts handed Perry the pills and asked for payment. Perry took the
pills but pulled out a gun. He then told his companion to go through
Wheeler’s pockets; the companion took $20 from Wheeler. When Perry tried
to go through Watts’s pockets, Watts resisted and put the car in reverse.
1 All further undesignated statutory references are to the Penal Code.
Perry filed his petition under former section 1170.95. Effective June 30,
2022, the Legislature renumbered section 1170.95 as section 1172.6, with no
substantive change in text. (Stats. 2022, ch. 58, § 10.) We refer to the statute
throughout as section 1172.6.
2 The following summary of the factual and procedural background is
taken from this court’s unpublished opinion in People v. Perry (January 31,
2012, D057006) [nonpub. opn.] (Perry). We previously granted Perry’s
unopposed request for judicial notice of the record from that appeal.
2
Perry’s companion jumped out of the car and told Perry, “Shoot him.” Perry
immediately fired one shot into Watts’s back, got out of the car, and fled with
his companion.
The jury convicted Perry of the first degree felony murder (§ 187,
subd. (a)) and attempted robbery (§§ 664/211) of Watts. As to both offenses,
the jury found Perry intentionally and personally discharged a firearm and
proximately caused Watts’s death (§ 12022.53, subd. (d)) (“section
12022.53(d)”).3 Perry was sentenced to a total term of 50 years to life for the
murder conviction and the associated section 12022.53(d) enhancement.4 We
affirmed the judgment of convictions in Perry, supra, D057006.
In May 2022, Perry filed a pro se form petition to vacate his murder
conviction and be resentenced pursuant to section 1172.6. He checked the
boxes stating he was prosecuted under a theory of felony murder, murder
under the natural and probable consequences doctrine, or other theory of
imputed malice; he was convicted of murder following a trial; and he could
not now be convicted of murder because of the legislative changes to sections
3 The jury also found true that Perry personally used a firearm
(§ 12022.53, subd. (b)) and intentionally and personally discharged a firearm
(§ 12022.53, subd. (c)) in the commission of the murder and attempted
robbery of Watts. It acquitted Perry of the robbery of Watts (§ 211), while
convicting him of the robbery of Wheeler (§ 211) and finding true the
associated firearm allegations under section 12022.53, subdivisions (b) and
(c).
4 The court imposed but stayed a two-year term on the attempted
robbery of Watts pursuant to section 654. It also imposed a concurrent
determinate term of 23 years for the robbery of Wheeler, consisting of three
years on the robbery and 20 years on the associated section 12022.53,
subdivision (c), enhancement.
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188 and 189 made effective January 1, 2019. He also requested the
appointment of counsel.
The People filed a response to the petition, asserting Perry was
ineligible for resentencing as a matter of law because the jury convicted Perry
of murder under the felony murder rule as the actual killer, not an
accomplice, as evidenced by the jury’s true finding on the section 12022.53(d)
allegation.
Perry, now represented by the public defender, filed a reply to the
People’s response. The reply said nothing specific about Perry’s case and was
silent as to the People’s argument he was ineligible for relief as the actual
killer in a felony murder. Instead, the reply set forth a generalized
discussion of the requirements for stating a prima facie case for relief under
section 1172.6 and the People’s burden of proof at an evidentiary hearing.
At the prima facie review hearing, the trial court agreed with the
People that the record of conviction established Perry was the actual killer
and denied Perry’s petition for resentencing without issuing an order to show
cause.
DISCUSSION
I.
Section 1172.6
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437) altered the substantive law on accomplice liability for
murder. First, it significantly narrowed the scope of California’s felony
murder rule by adding section 189, subdivision (e). (Stats. 2018, ch. 1015,
§ 3; see People v. Strong (2022) 13 Cal.5th 698, 707−708 (Strong).) Section
189, subdivision (e), provides that a defendant is liable for felony murder only
if he (1) was the actual killer; (2) was not the actual killer but, with the intent
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to kill, acted as a direct aider and abettor; or (3) was a major participant in
the underlying felony and acted with reckless indifference to human life.
(See Strong, at p. 708.)
Second, Senate Bill 1437 also amended section 188 to impose a new
requirement that, except in cases of felony murder, a principal in the crime of
murder can only be convicted where he acted “with malice aforethought,”
and “[m]alice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); see People v. Curiel (2023) 15
Cal.5th 433, 449 (Curiel).) “One effect of this requirement was to eliminate
liability for murder as an aider and abettor under the natural and probable
consequences doctrine.” (Curiel, at p. 449.)
Third, Senate Bill 1437 established a procedure to allow defendants
who could not have been convicted under current law to petition the
sentencing court to vacate their murder conviction and resentence them on
any remaining counts. (§ 1172.6, subd. (a); Curiel, supra, 15 Cal.5th at
pp. 449–450.) A person convicted of murder must file a petition containing a
declaration that all requirements for eligibility are met, including (1) “A
complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory 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 . . . .”; (2) “The petitioner was convicted of
murder . . . following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder . . . .”; and (3) “The
petitioner could not presently be convicted of murder . . . because of changes
to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a)(1)−(3).)
5
Upon receiving a petition that contains all the required information,
the trial court must appoint counsel to represent the petitioner if one is
requested. (§ 1172.6, subd. (b)(3); see People v. Lewis (2021) 11 Cal.5th 952,
963 (Lewis).) If, after the parties have had an opportunity to submit
briefings, the court determines the petitioner has made a prima facie case for
relief (§ 1172.6, subd. (c)), it must issue an order to show cause and conduct
an evidentiary hearing (§ 1172.6, subds. (c) & (d)(1)).
This prima facie inquiry is “limited.” (Lewis, supra, 11 Cal.5th at
p. 971.) The trial court takes the petitioner’s factual allegations as true and
makes a preliminary assessment whether the petitioner would be entitled to
relief if his factual allegations were proved. (Ibid.) In making this
preliminary assessment, “the trial court may look at the record of conviction”
to “distinguish petitions with potential merit from those that are clearly
meritless” (ibid.), but it may not engage in “ ‘factfinding involving the
weighing of evidence or the exercise of discretion’ ” (id. at p. 972). “ ‘If the
petition and record in the case establish conclusively that the [petitioner] is
ineligible for relief, the trial court may dismiss the petition’ ” at the prima
facie stage. (Curiel, supra, 15 Cal.5th at p. 450, italics added.) The record of
conviction includes jury instructions, verdict forms, closing arguments and, in
the appropriate case, prior appellate opinions in the case. (People v.
Jenkins (2021) 70 Cal.App.5th 924, 935 (Jenkins); see Lewis, at pp. 971−972.)
II.
Perry Is Ineligible for Relief as a Matter of Law
Reviewing the appealed order de novo (People v. Harden (2022) 81
Cal.App.5th 45, 52 (Harden)), we conclude the trial court properly denied
Perry’s section 1172.6 petition at the prima facie stage. The record of
conviction conclusively establishes that Perry was convicted as the actual
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killer in a felony murder. This makes him ineligible for resentencing as a
matter of law. (§ 189, subd. (e)(1); Strong, supra, 13 Cal.5th at p. 710
[“Senate Bill 1437 relief is unavailable if the defendant was . . . the actual
killer”]; Harden, at p. 53 [“defendants convicted of felony murder are not
eligible for relief if they were the actual killer”].)
We begin our analysis with the jury instructions. The trial court
instructed the jury on only one theory of murder: first degree felony murder.
This is not in dispute. At the prima facie review hearing, counsel for Perry
conceded: “I do agree this was a felony murder case.” As to felony murder,
the court gave both CALCRIM No. 540A,5 which applies if the defendant
committed the fatal act, and CALCRIM No. 540B,6 which applies if an
5 As given, CALCRIM No. 540A, entitled “Felony Murder: First Degree—
Defendant Allegedly Committed Fatal Act (Pen. Code, § 189)” (italics added,
boldface omitted) stated:
“The defendant is charged in Count 1 with murder, under a theory of
felony murder.
“To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant committed Robbery or Attempted Robbery;
2. The defendant intended to commit Robbery or Attempted Robbery;
AND
3. While committing Robbery or Attempted Robbery, the defendant did
an act that caused the death of another person.
“A person may be guilty of felony murder even if the killing was
unintentional, accidental, or negligent.
“To decide whether the defendant committed Robbery or Attempted
Robbery, please refer to the separate instructions that I will give you on those
crimes. You must apply those instructions when you decide whether the
People have proved first degree murder under a theory of felony murder.
“It is not required that the person killed be the victim of the felonies.”
6 The CALCRIM No. 540B instruction, entitled “Felony Murder: First
Degrees—Coparticipant Allegedly Committed Fatal Act (Pen. Code, § 189)”
(italics added, boldface omitted) stated:
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accomplice committed the fatal act during the commission of a felony which
the defendant also committed or aided and abetted.7
The trial court also instructed the jury with CALCRIM No. 3149 on the
section 12022.53(d) allegation. The instruction informed the jury: “If you
“The defendant may also be guilty of murder, under a theory of felony
murder, even if another person did the act that resulted in the death. I will
call the other person the perpetrator.
“To prove that the defendant is guilty of first degree murder under this
theory, the People must prove that:
1. The defendant committed, or aided and abetted Robbery or
Attempted Robbery;
2. The defendant intended to commit, or intended to aid and abet the
perpetrator in committing Robbery or Attempted Robbery;
3. If the defendant did not personally commit Robbery or Attempted
Robbery, then a perpetrator, whom the defendant was aiding and
abetting, personally committed Robbery or Attempted Robbery;
4. While committing Robbery or Attempted Robbery, the perpetrator
did an act that caused the death of another person;
AND
5. There was a logical connection between the act causing the death
and the Robbery or Attempted Robbery. The connection between the
fatal act and the Robbery or Attempted Robbery must involve more
than just their occurrence at the same time and place.
“A person may be guilty of felony murder even if the killing was
unintentional, accidental, or negligent.
“To decide whether the defendant and the perpetrator committed
Robbery or Attempted Robbery, please refer to the separate instructions that
I will give you on those crimes. To decide whether the defendant aided and
abetted a crime, please refer to the separate instructions that I have given
you on aiding and abetting. You must apply those instructions when you
decide whether the People have proved first degree murder under a theory of
felony murder.”
7 In connection with CALCRIM 540B and the underlying felony of
robbery and attempted robbery, the jury was instructed with CALCRIM
No. 400 Aiding and Abetting: General Principles and CALCRIM No. 401
Aiding and Abetting: Intended Crimes.
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find the defendant guilty of the crimes charged in Counts 1 [Murder] and 2
[Robbery], or the lesser crime of Attempted Robbery, you must then decide
whether, for each crime, the People have proved the additional allegation
that the defendant personally and intentionally discharged a firearm during
that crime causing death.” (Italics added.) The instruction told the jury it
could find the allegation true only if the People proved: (1) “The defendant
personally discharged a firearm during the commission of that crime”; (2)
“The defendant intended to discharge the firearm”; and (3) “The defendant’s
act caused the death of a person.” (Italics added.)
As instructed, the jury returned verdicts finding Perry guilty of “the
crime of Felony Murder in the First Degree” of Watts and the crime of
attempted robbery of Watts. The jury also found that in the commission of
Watts’s murder and attempted robbery, Perry “DID intentionally and
personally discharge a firearm, to wit: a handgun, and proximately caused
great bodily injury and death” to Watts within the meaning of section
12022.53(d). (Italics added.)
Although section 12022.53(d) requires only proximate causation8 and
not actual causation (Lopez, supra, 73 Cal.App.5th at p. 333), and
proximately causing is not the same as personally inflicting harm (Bland,
supra, 28 Cal.4th at pp. 335–336), the trial court did not instruct the jury on
proximate causation. Indeed, the court did not include in CALCRIM
No. 3149 the optional bracketed language that would have permitted the jury
8 “A proximate cause of great bodily injury ‘ “is an act . . . that sets in
motion a chain of events that produces as a direct, natural and probable
consequence of the act . . . the great bodily injury or death and without which
the great bodily injury or death would not have occurred.” ’ ” (People v. Lopez
(2021) 73 Cal.App.5th 327, 333 (Lopez), quoting People v. Bland (2002) 28
Cal.4th 313, 335 (Bland).)
9
to rely on proximate causation, or even on multiple potential causes.9 As the
bench notes to CALCRIM No. 3149 provide, the court has a sua sponte duty
to instruct on proximate cause and on multiple potential causes only “[i]f
causation is at issue.” (Bench Notes to CALCRIM No. 3149, (2006 new).)
Here there is no dispute that Watts died of a single gunshot wound,10
and the prosecutor’s theory was that Perry shot Watts during a robbery or
attempted robbery. The prosecutor argued in closing, consistent with
CALCRIM No. 3149, that “[Perry], and [Perry] alone, chose to pull the
trigger”; he would not “spend a lot of time on aiding and abetting” because
“that[ was] not [his] theory”; and he was “not for a second suggesting that the
9 The optional bracketed language not given in CALCRIM No. 3149
included the following:
“[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death)
is the direct, natural, and probable consequence of the act and the (injury/ [or]
death) would not have happened without the act. A natural and probable
consequence is one that a reasonable person would know is likely to happen if
nothing unusual intervenes. In deciding whether a consequence is natural
and probable, consider all the circumstances established by the evidence.]
“[There may be more than one cause of (great bodily injury/ [or] death).
An act causes (injury/ [or] death) only if it is a substantial factor in causing
the (injury/ [or] death). A substantial factor is more than a trivial or remote
factor. However, it does not need to be the only factor that causes the (injury/
[or] death).]
“[A person is an accomplice if he or she is subject to prosecution for the
identical crime charged against the defendant. . . .]”
10 We draw this fact from our prior opinion in the direct appeal. (Lewis,
supra, 11 Cal.5th at p. 972 [“Appellate opinions . . . are generally considered
to be part of the record of conviction.”].) In doing so, we observe our high
court’s caution that “the probative value of an appellate opinion is
case[-]specific, and ‘it is certainly correct that an appellate opinion might not
supply all answers.’ ” (Ibid.) Here, there is no contention that our prior
opinion’s summary of the autopsy evidence that Watts died of a single
gunshot wound through his back is inaccurate.
10
defendant was anything but the shooter. . . .” (See Jenkins, supra, 70
Cal.App.5th at p. 935 [record of conviction may include closing arguments].)
Thus the jury instructions and verdicts conclusively establish the jury
found there was a killing of a human being during the course of an attempted
robbery and that Perry personally and intentionally fired a gun causing that
death. In other words, the jury necessarily convicted Perry under CALCRIM
No. 540A, in which Perry committed the fatal act, and not under CALCRIM
No. 540B, in which an accomplice committed the fatal act. (See People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius) [jury’s true finding that
defendant personally and intentionally discharged a firearm causing death
within meaning of section 12022.53(d) is an implicit finding defendant was
“ ‘actual killer’ ”]11; Harden, supra, 81 Cal.App.5th at p. 55 [jury’s true
finding that defendant personally inflicted great bodily injury on homicide
victim within meaning of section 12022.7, subd. (a), necessarily means jury
determined defendant was actual killer].) As the actual killer in a felony
murder, Perry is ineligible for resentencing under section 1172.6 as a matter
of law. (§ 189, subd. (e)(1); see Strong, supra, 13 Cal.5th at p. 710; Harden, at
p. 53.)
In his opening brief on appeal, Perry contends the section 12022.53(d)
enhancement “fail[s] to show that when appellant fired the gun, he possessed
the requisite mental state for murder.” (Italics added.) Perry does not
11 The California Supreme Court granted review in Cornelius and held
that matter for resolution of Lewis, supra, 11 Cal.5th 952; however, the
Supreme Court subsequently dismissed the petition for review in Cornelius,
remanded the matter, and deemed the case “non-citable and nonprecedential
‘to the extent it is inconsistent with’ [the] decision in Lewis.” (People v.
Cornelius (Oct. 27, 2021, S260410).) The trial court in Cornelius did not
appoint counsel and denied Cornelius’s petition. (Cornelius, supra, 44
Cal.App.5th at pp. 56–57.)
11
dispute the jury’s true finding on the section 12022.53(d) enhancement
conclusively establishes he fired the gun, nor does he challenge that this act
resulted in Watts’s death. His focus is on whether the enhancement proves
he acted with malice aforethought. But this focus is misplaced.
As we have explained, the new requirement in amended section 188
that a principle in a murder can only be convicted where he acted with malice
aforethought expressly does not apply to felony murder. (§ 188, subd. (a)(3)
[“Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principle 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.”]; Curiel, supra, 15 Cal.5th at p. 449 [“Senate Bill 1437 imposed a new
requirement that, except in cases of felony murder, ‘a principal in a crime
shall act with malice aforethought’ to be convicted of murder. (§ 188,
subd. (a)(3).)” (italics added)].) “As amended by Senate Bill No. 1437, the text
of section 189 provides no additional or heightened mental state requirement
for the ‘actual killer’ prosecuted under a felony-murder theory; it requires
only that ‘[t]he person was the actual killer.’ (§ 189, subd. (e)(1).)” (People v.
Garcia (2022) 82 Cal.App.5th 956, 967.)
For this reason, Perry’s reliance on People v. Offley (2020) 48
Cal.App.5th 588 is unpersuasive. Offley was not a felony murder case. It
involved the natural and probable consequences theory of murder in a case
where the defendant was one of five people who participated in a gang-
related shooting into an occupied vehicle that left one person dead. (Id. at
p. 592.) After being instructed on conspiracy and liability for the natural and
probable consequences of co-conspirators’ crimes, the jury convicted Offley
and his co-defendant of murder and found true a section 12022.53(d)
allegation as to each. (Offley, at p. 593.) The Offley court concluded the
12
section 12022.53(d) finding did not “in itself preclude a petitioner from
obtaining relief” because it did not establish the malice aforethought required
for Offley’s murder conviction. (Id. at pp. 592, 597.) As the court explained,
the jury could have convicted Offley while still concluding that Offley acted
without the intent to kill. (Id. at p. 597.) Offley is simply inapposite.
Because the record of conviction conclusively establishes that Perry
was ineligible for section 1172.6 resentencing as a matter of law, we conclude
the trial court did not commit error by denying the petition at the prima facie
stage.
DISPOSITION
We affirm the order denying the petition for resentencing.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
CASTILLO, J.
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