People v. Perez CA5 ( 2024 )

Filed 9/20/24 P. v. Perez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087538
Plaintiff and Respondent,
(Super. Ct. No. CR-21-005667)
v.
RUBEN PEREZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
John L. Staley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the State Attorney General’s Office, Sacramento, California, for Plaintiff
and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Peña, J.
INTRODUCTION
In 2022, appellant and defendant Ruben Perez (appellant) pleaded no contest to
voluntary manslaughter and felon in possession of a firearm and was sentenced to
11 years eight months in prison. In 2023, he filed a petition for resentencing pursuant to
Penal Code1 section 1172.6. In 2024, the trial court denied the petition for failing to state
a prima facie case because appellant entered his plea after the effective dates of the
amendments to sections 188 and 189, and he could not have been tried and convicted
based upon legal theories that were legally invalid.
On appeal, appellate counsel filed a brief that summarized the facts and procedural
history with citations to the record, raised no issues, and asked this court to independently
review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People
v. Wende (1979) 25 Cal.3d 436. Appellant filed a letter brief and raises several issues.
We review the trial court’s ruling, address appellant’s contentions, and affirm the denial
of his petition.
FACTS2
“ ‘Late in the evening on May 2nd, 2021, [appellant] engaged in an altercation
with Chase Jones at a taco truck on Martha Street in Keyes, California. [Jones] told
1 All further statutory citations are to the Penal Code.
2 As discussed below, the following factual summary is taken from the stipulated
factual basis stated at appellant’s plea hearing.
In reviewing a section 1172.6 petition, the court may rely on “the procedural
history of the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); People
v. Clements (2022) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th
393, 400, fn. 9.) The role of the appellate opinion is limited, however, and the court may
not rely on factual summaries contained in prior appellate decisions or engage in fact
finding at the prima facie stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th
952, 972.) We have recited the factual statement from appellant’s plea proceeding to
place his appellate arguments in context, and will not make factual findings to resolve his
appeal from the trial court’s order that found his petition did not state a prima facie case
for relief.
2.
[appellant], “Not hear [sic] and not now.” There was [sic] over a dozen people
congregating at the taco truck area.’
“ ‘[Appellant] immediately went to his vehicle, which was less than 20 feet away
and retrieved a loaded 9mm handgun from his vehicle. [Jones] entered his vehicle parked
nearby and sat down in the driver’s seat. In the passenger seat of [Jones’] vehicle was
Anthony Pando.’
“ ‘[Pando] did not get out of the vehicle at the taco truck. [Appellant] was outside
of his vehicle, began walking and firing toward Jones’ vehicle. At least three shots were
fired by [appellant].’
“ ‘Based on the casings recovered on the scene, at least one bullet hit [Jones’]
vehicle. [Jones] maneuvered his vehicle in the U-turn, which forced his vehicle to move
toward [appellant]. From inside of [Jones’] vehicle, [Pando] fired more than one shot
from a rifle. The bullet from [Pando’s] rifle missed [appellant] and struck and killed
Evan Robinson, who had no involvement in this case or the feud between the two parties
and was standing near the taco truck.’ ”
PROCEDURAL BACKGROUND
On October 4, 2022, an information was filed in the Superior Court of Stanislaus
County charging appellant with count I, first degree premeditated murder of
Evan Robinson (§§ 187, 189), with the enhancement that he personally and intentionally
discharged a firearm causing death or great bodily injury (§ 12022.53, subd. (d));
counts II and III, premeditated attempted murder of, respectively, Chance Jones and
Anthony Pando (§§ 664/187, subd. (a)), with enhancements that he personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)); and count IV, felon in
possession of a firearm (§ 29800, subd. (a)(1)).
Plea and Sentence
On December 9, 2022, the trial court convened a hearing in appellant’s case. The
parties advised the court that appellant agreed to a negotiated disposition to plead no
3.
contest to an amended count I, voluntary manslaughter of Robinson, as a lesser included
offense of first degree murder, and count IV, felon in possession of a firearm, for a
stipulated sentence of 11 years eight months.
The prosecutor stated the factual basis as set forth above, and that the facts were
summarized from the preliminary hearing evidence. The prosecutor further stated:
“ ‘[Appellant] acted with intent to kill, but for [the] firing of his gun
at [Jones] and his vehicle, [Robinson] would not have been murdered.
[Appellant] admits he’s being charged with [the] murder of [Robinson] and
is accepting this plea for manslaughter because he may be convicted of
murder if this case were to proceed to trial. [Appellant] admits that his
punishment is commensurate with his individual culpability in this
crime.’ ”
Appellant’s counsel stipulated to this factual basis. The trial court asked if
appellant personally stipulated to the factual basis.
“THE COURT: So for purposes of this plea and purposes of any
relief that may be available to [appellant] or any petition that may be filed
in the future pursuant to [s]ection 1172.6, … do you except [sic] and agree
that there is a factual basis as set forth by [the prosecutor]?
“[APPELLANT]: I accept and agree.”
The prosecutor stated the parties also stipulated to the following aggravating
circumstances: “[T]he People struck the firearm enhancement. [Appellant] did use a
firearm in the commission of this series of offenses that he’s been charged with. While
his firearm was not the one that delivered the fatal blow, there was a gun that was
discharged during the commission of this crime, and [appellant] is charged with that
firearm. [¶] [Appellant] also has a juvenile adjudication for a crime involving a firearm,
and it seems like he has an increasing—his criminality is increasing.” Both appellant and
his attorney stipulated to the aggravating circumstances.
Appellant pleaded no contest to amended count I, voluntary manslaughter, and
count IV, felon in possession of a firearm. The trial court imposed the stipulated sentence
of the upper term of 11 years for count I, and a consecutive term of eight months
4.
(one-third the midterm) for count IV, and dismissed the attempted murder charges and an
unrelated case. Appellant did not file an appeal from the judgment.
PETITION FOR RESENTENCING
On February 14, 2023, appellant filed, in propria persona, a petition for
resentencing of his manslaughter conviction under section 1172.6, and requested
appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where
he checked boxes that (1) he was eligible for resentencing because a complaint,
information, or indictment was filed that allowed the prosecution to proceed under a
theory of felony murder, 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, or attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
The trial court appointed counsel.
The Prosecution’s Opposition
On April 13, 2023, the prosecution filed opposition, and argued appellant was
ineligible for relief under section 1172.6 because he was charged and entered his plea
after the effective dates of the amendments enacted by Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437) and Senate Bill No. 775 (2020–2021 Reg. Sess.)
(Senate Bill 775). In addition, appellant acknowledged at his plea hearing that he would
not be eligible for resentencing under section 1172.6.
5.
Appellant’s Reply
On December 5, 2023, appellant filed a reply and asserted his petition stated a
prima facie case, and the trial court could not make any factual findings to deny the
petition.
The Trial Court’s Order
On January 18, 2024, the trial court conducted a hearing on the prima facie issue,
and found appellant was ineligible for resentencing because he entered his plea after the
change in law prohibiting convictions based on imputed malice theories, as held in
People v. Reyes (2023) 97 Cal.App.5th 292 (Reyes).
On January 30, 2024, appellant filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Wende and Delgadillo. The brief also included counsel’s declaration that appellant was
advised he could file his own brief with this court. This court advised appellant that he
could file a supplemental letter brief.
On July 2, 2024, appellant filed a letter brief and raises several issues about the
denial of his petition for resentencing.
A. Section 1172.6
“Effective January 1, 2019, the Legislature passed Senate Bill [1437]. This
amended both the felony-murder rule and the natural and probable consequences doctrine
to ensure that murder liability is not imposed on a person who is not the actual killer, did
not act with the intent to kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life. [Citation.] Senate Bill [1437] also added
[former] section 1170.95, now renumbered as section 1172.6. This created a procedural
mechanism for those convicted under the former law to seek retroactive relief.” (Reyes,
supra, 97 Cal.App.5th at p. 295.)
6.
Former section 1170.95 originally provided for “a person with an existing
conviction for felony murder or murder under the natural and probable consequences
doctrine to petition the sentencing court to have the murder conviction vacated and to be
resentenced on any remaining counts if he or she could not have been convicted of
murder as a result of the other legislative changes implemented by Senate Bill [1437].”
(People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Senate Bill 775 became effective on January 1, 2022, amended former
section 1170.95, and “ ‘[c]larifie[d] that persons who were convicted of attempted murder
or manslaughter under a theory of felony murder and the natural [and] probable
consequences doctrine are permitted the same relief as those persons convicted of murder
under the same theories.’ ” (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18;
People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Former section 1170.95 was
renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu
(2022) 81 Cal.App.5th 709, 715, fn. 3.)
Section 1172.6 states that “when a petitioner files a facially sufficient petition, the
trial court must appoint counsel to represent the petitioner. The trial court may consider
the record of conviction to determine whether the petitioner makes a prima facie showing
only after the appointment of counsel and the opportunity for briefing has occurred.
[Citation.] At the prima facie hearing, the court must take the petitioner’s factual
allegations as true. However, if the record contains facts refuting the allegations made in
the petition, the court may deny the petition without issuing an order to show cause.”
(Reyes, supra, 97 Cal.App.5th at p. 298.)
B. The Trial Court’s Ruling
The trial court correctly found that appellant was ineligible for resentencing as a
matter of law. When Senate Bill 775 was enacted and added manslaughter to
section 1172.6, “the Legislature’s aim in the manslaughter context was to make relief
available to defendants who were convicted by plea or trial at a time when the
7.
prosecution could have pursued a murder charge, but the only way of doing so would
have been a now invalid theory of imputed malice. Thus, in the manslaughter plea
context, … at the time of conviction—i.e., the time the plea was entered—the only way
to a murder conviction was through an imputed malice theory. As a matter of law, this
cannot be true for a person … who pled guilty to voluntary manslaughter at a time when
imputed malice theories had already been statutorily eliminated.” (People v. Lezama
(2024) 101 Cal.App.5th 583, 590, italics added.)
In December 2022, appellant entered his manslaughter plea with the advice and
consent of legal counsel, after the effective dates of both Senate Bill 1437 and Senate
Bill 775, and when the now-invalid theories of imputed malice had already been
eliminated. Consequently, appellant received the benefits of the amendments enacted by
these bills, and he was “not the type of defendant this retroactive procedure was intended
to benefit, and any contrary interpretation of this statute would lead to absurd results.”
(Reyes, supra, 97 Cal.App.5th at pp. 298–299.)
C. Appellant’s Letter Brief
In his letter brief, appellant asserts that he is eligible for resentencing because he
was “convicted” under the “provocative act doctrine,” which required proof that he
“personally harbored … malice,” but he pleaded no contest to voluntary manslaughter,
that he “acted without malice.” Appellant argues that as a result of his manslaughter plea,
he could not have been convicted of murder with malice aforethought. Appellant argues
his plea to voluntary manslaughter required proof that he acted based on a sudden heat of
passion arising from “provocation,” the manslaughter plea prevented any possible
conviction of murder with malice aforethought, and his plea constituted “a complete
contradiction of the provocative act doctrine.”
The provocative act doctrine does not define a crime, but it is a descriptive phrase
“referring to a subset of intervening-act homicides in which the defendant’s conduct
provokes an intermediary’s violent response that causes someone’s death.” (People v.
8.
Gonzalez (2012) 54 Cal.4th 643, 649, fn. 2, superseded by statute on other grounds as
explained in People v. Wilson (2023) 14 Cal.5th 839, 868.) “The classic provocative act
scenario occurs when a perpetrator of the underlying crime instigates a gun battle, usually
by firing first, and a police officer, or victim of the underlying crime, responds with
privileged lethal force by returning fire and kills the perpetrator’s accomplice or, by
inadvertence, an innocent bystander.” (People v. Mejia (2012) 211 Cal.App.4th 586,
602–603 (Mejia).)
“Under the theory of provocative act murder, the perpetrator of an underlying
crime is held liable for the killing of an accomplice by a third party.” (Mejia, supra, 211
Cal.App.5th at p. 602.) Prior to the decision in People v. Concha (2009) 47 Cal.4th 653,
“a defendant could be convicted for a killing by a third party provoked by an
accomplice’s actions with malice aforethought, regardless of the defendant’s personal
mental state.” (People v. Lee (2023) 95 Cal.App.5th 1164, 1169, 1182 (Lee).)
After Concha, the Supreme Court clarified that all provocative act murders require
proof that the defendant personally harbored malice. (People v. Concha, supra, 47
Cal.4th at pp. 658–659; People v. Gonzalez, supra, 54 Cal.4th at p. 655; Lee, supra, 95
Cal.App.5th at pp. 1168, 1181–1182.) A defendant must “personally possess the requisite
mental state of malice aforethought,” either express or implied, to be guilty of a
provocative act murder. (Mejia, supra, 211 Cal.App.4th at pp. 603–604.)3 In a
provocative act murder prosecution, “[w]hen a defendant intentionally acts with the
specific intent to kill, … he demonstrates express malice.” (Mejia, at p. 604.)
As relevant to this case, Senate Bill 775 amended section 1172.6 to state that a
defendant convicted of manslaughter may file a petition to vacate that conviction when
3 The Supreme Court has granted review in People v. Antonelli (2023) 93
Cal.App.5th 712 (review granted Oct. 18, 2023, S281599), and ordered briefing on the
issue as to whether a defendant who was convicted of murder under the provocative act
doctrine prior to 2009 and the decision in Concha, when malice could have been imputed,
is eligible for resentencing under section 1172.6.
9.
(1) an information was filed that allowed the prosecution to proceed under a theory of
felony murder, 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) appellant “accepted a plea offer in lieu of a trial at which
[he] could have been convicted of murder” and (3) appellant “could not presently be
convicted of murder … because of changes to [s]ection 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a).)
Appellant was alleged to have committed first degree murder in 2021, in an
information filed in October 2022. If appellant had gone to trial on the murder charge,
and the prosecution relied on the provocative act doctrine, the prosecution would have
been required as a matter of law to prove he acted with express or implied malice, and not
imputed malice. (Mejia, supra, 211 Cal.App.4th at pp. 603–604; Lee, supra, 95
Cal.App.5th at p. 1169.) Instead, appellant entered his manslaughter plea in
December 2022, and personally admitted that he acted with the intent to kill, as relevant
to a future section 1172.6 petition. A prosecutor’s recitation of facts underlying the
conviction, immediately before a defendant enters a guilty plea, is part of the record of
conviction. (People v. Roberts (2011) 195 Cal.App.4th 1106, 1120; People v. Abarca
(1991) 233 Cal.App.3d 1347, 1350 [change-of-plea transcript is part of the record of
conviction].)
Appellant asserts the prosecutor “twisted and bent the law” to convict him of
voluntary manslaughter “so that I would be given the highest sentence possible” instead
of a lesser charge. Appellant never moved to withdraw his plea and such an argument is
not cognizable in an appeal from the denial of a section 1172.6 petition. (People v.
Farfan (2021) 71 Cal.App.5th 942, 947.) In any event, appellant was charged with
first degree murder and, represented by counsel, entered his plea to the lesser offense of
voluntary manslaughter and personally stipulated that he acted with the intent to kill.
10.
DISPOSITION
The trial court’s order of January 18, 2024, denying his petition for resentencing,
is affirmed.
11.