People v. Perez CA2/2 ( 2024 )

Filed 5/29/24 P. v. Perez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B327685
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA005708)
v.
EDDIE ANTHONY PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Affirmed.
Paul R. Kleven, 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, Scott A. Taryle and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Eddie Anthony Perez (defendant) was convicted of second
degree murder (Pen. Code, § 187, subd. (a)).1 Defendant now
appeals from an order denying his petition for resentencing under
section 1172.6 following an evidentiary hearing.2 Concluding
there was no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts3
A. The underlying crime
Defendant was asleep when he got a call from Gilbert
Eugene Rosales (Rosales) around 1:30 a.m. on the morning of
October 12, 1990.
Rosales had gotten into an altercation with several
individuals, and wanted defendant to bring a gun “because there
was trouble.” Defendant obliged. He swung by to pick up
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
We therefore refer to the law formerly codified at section 1170.95
as section 1172.6.
3 We have drawn these facts from our prior, unpublished
opinion affirming defendant’s conviction on appeal (People v.
Rosales and Perez (Jan. 27, 1993, B062327) [nonpub. opn.]), but
have independently confirmed them by examining the underlying
trial record, of which we took judicial notice.
2
Rosales and a third person, and drove them all to the location of
the earlier altercation.
As they were arriving at that location, they came upon two
men standing in the street near a vehicle, and Rosales
proclaimed, “Those are the guys.” Defendant slowed the car. As
defendant continued to drive closer, Rosales loaded the gun
defendant brought with the ammunition defendant kept behind
the seat. When defendant’s car was approximately 10 to 15 yards
past the two men, Rosales asked defendant to open the hatchback
of the car. Again, defendant obliged. Rosales then opened fire
through the open hatchback, hitting one of the men—Steven
Rangel.
Defendant remarked, “I think you got one.” Then he drove
the three away from the scene.
Rangel died from a gunshot wound.
B. Charging, conviction, and appeal
The People charged defendant with first degree murder of
Rangel (§ 187, subd. (a)), and discharging a firearm at an
occupied motor vehicle (§ 246). The People also alleged that
defendant furnished a firearm for the purpose of aiding and
abetting another person to commit a felony (§ 12022.4), and that
a principal was armed with a firearm within the meaning of
section 12022, subdivision (a)(1).4
At trial, the jury was instructed that defendant could be
liable for murder as a direct aider and abettor to the murder
4 Rosales was also charged with first degree murder (§ 187,
subd. (a)) and discharging a firearm at an occupied motor vehicle
(§ 246), and the People further alleged that he inflicted great
bodily injury and death on the victim as a result of discharging a
firearm from a motor vehicle (§ 12022.55) and personally used a
firearm within the meaning of section 12022.5.
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(using CALJIC No. 3.01) or as aiding and abetting Rosales in the
precursor shooting, the natural and probable consequence of
which was murder (using CALJIC No. 3.02).
A jury convicted defendant of second degree murder and
found true the special allegations. The jury found defendant not
guilty of discharging a firearm at an occupied motor vehicle. The
trial court sentenced defendant to 15 years to life in state prison.5
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On February 14, 2019, defendant filed a petition seeking
resentencing under section 1172.6. The trial court summarily
denied the petition. In an unpublished opinion, we reversed the
summary denial and remanded for an evidentiary hearing.
(People v. Perez (May. 20, 2022, B310887) [nonpub. opn.].)
At the evidentiary hearing on remand, the parties did not
introduce any new evidence, choosing instead to rely solely on the
record from defendant’s criminal trial. After entertaining
argument, the trial court independently found that defendant
was guilty of second degree murder on the theory that he directly
aided and abetted the implied malice murder committed by
Rosales.
Defendant filed this timely appeal.
DISCUSSION
Defendant challenges the trial court’s finding that he is
ineligible for relief under section 1172.6 because he is guilty of
murder as the direct aider and abettor of a perpetrator who
5 A jury convicted Rosales of first degree murder and found
true all the special allegations; Rosales was sentenced to 30 years
to life in state prison.
4
committed murder with implied malice. As pertinent here,
section 1172.6 is the procedural vehicle by which persons can
seek to vacate a prior murder conviction that was based on a
theory of criminal liability subsequently invalidated by our
Legislature. (§ 1172.6, subd. (a).) Directly aiding and abetting
an implied malice murder remains a valid theory of liability for
murder. (People v. Reyes (2023) 14 Cal.5th 981, 991
(Reyes); People v. Gentile (2020) 10 Cal.5th 830, 850, abrogated on
other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839,
869.) Thus, our task is to evaluate whether substantial evidence
supports the trial court’s finding that defendant is guilty of
murder under this theory. (People v. Vargas (2022) 84
Cal.App.5th 943, 951; People v. Sifuentes (2022) 83 Cal.App.5th
217, 233-234.) In so doing, we view the evidence in the light most
favorable to the court’s finding, drawing all reasonable inferences
in support of that finding. (People v. Kraft (2000) 23 Cal.4th 978,
1053.) Because “‘we must begin with the presumption that the
evidence . . . was sufficient,’” it is defendant, as the appellant,
who “‘bears the burden of convincing us otherwise.’” (People v.
Hamlin (2009) 170 Cal.App.4th 1412, 1430.)
A person is guilty of an implied malice murder as a direct
perpetrator only if (1) he intentionally engaged in an act; (2) the
natural and probable consequences of that act “involve[] a high
degree of probability that it would result in death”; (3) at the time
the person acted, he knew the act entailed that danger; and (4)
the person acted with “conscious disregard for life.” (CALCRIM
No. 520; Reyes, supra, 14 Cal.5th at pp. 989, 999.) A defendant is
guilty of a crime as a direct aider and abettor if (1) the direct
perpetrator committed the crime; (2) the defendant had
“knowledge of the [direct perpetrator’s] unlawful purpose”; (3) the
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defendant intended to aid and abet the commission of the crime;
and (4) the defendant said or did something that “aid[ed],
promote[d], encourage[d] or instigate[d] the commission of the
crime.” (CALCRIM No. 401; People v. Cooper (1991) 53 Cal.3d
1158, 1164.) Taken together and plugging in the appropriate
roles from this case, defendant is guilty of second degree implied
malice murder as a direct aider and abettor if (1) Rosales
committed an implied malice murder, (2) defendant knew Rosales
was going to open fire at other individuals, (3) the natural and
probable consequences of doing so entail a high degree of
probability that death will result, (4) defendant knew that
opening fire involved that dangerous probability, (5) defendant
consciously disregarded that danger, (6) defendant intended to
aid Rosales in the shooting, and (7) defendant did some act to aid
Rosales in the shooting. (Reyes, at p. 991 [proper focus is on
aiding and abetting the “life-endangering act,” and not “the
crime”].)
Substantial evidence supports the trial court’s finding that
defendant was guilty of directly aiding and abetting Rosales in
murdering Rangel with implied malice. Rosales committed the
crime of murder. Defendant knew that Rosales intended to shoot
at others because Rosales called defendant to bring him a gun,
said there would be “trouble,” loaded the gun in defendant’s
presence, asked defendant to open the hatchback, and then took
aim at the men standing in the street. Shooting at other people
involves a high degree of probability of death. Defendant knew
that shooting at people entails a high probability of death.
Defendant consciously disregarded that danger by bringing the
gun and opening the hatchback so that Rosales could open fire.
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Defendant intended to help Rosales because he undertook those
acts. And those acts aided Rosales in undertaking the shooting.
Defendant challenges the propriety of the trial court’s
ruling denying his resentencing with what boils down to two
clusters of arguments.
First, defendant argues that there was insufficient evidence
that Rosales engaged in an act with a high degree of probability
of death because all the witnesses testified that Rosales merely
meant to “scare” his victims by shooting over their heads rather
than to kill his victims by shooting at them and, relatedly,
Rosales maintained that he fired the gun just as the car hit a dip
in the road and thus caused him to shoot closer to the ground.
Because all the testimony showed at best an intent to scare or
that the accuracy of Rosales’s aim was an unfortunate fortuity,
defendant reasons, there is insufficient evidence of an intent to
shoot at someone and hence insufficient evidence of an act
carrying a high degree of probability of death. Defendant is
wrong. A trier of fact (here, the trial court) is well within its
rights to reject all the testimony at trial in favor of circumstantial
evidence to the contrary. (E.g., Lee v. Ashizawa (1964) 60 Cal.2d
862, 865; Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 68.)
Because the fact that Rosales struck one of his victims with a
bullet is circumstantial evidence that he was aiming at them, the
trial court here could reasonably conclude that Rosales was
shooting at the victims and disregard all testimony—most of
which was self-serving—to the contrary. Indeed, that is precisely
what the court did when it indicated that it gave “little weight to
[defendant’s] statement that he only thought that [Rosales] was
going to scare . . . the two men.” Defendant asserts that the
evidence of whether defendant slowed the car or stopped the car
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prior to the shooting was never resolved, but this is not
significant in the assessment of defendant’s guilt.
Relatedly, defendant asserts that the trial court
misunderstood the elements of directly aiding and abetting an
implied malice murder because the court (1) did not explicitly
refer to a “high degree of probability” of death; and (2) noted, in
the alternative, that “[e]ven if [it] were to credit [defendant’s]
statements that he only intended to scare the two men, the act of
firing a rifle to scare . . . would be sufficient . . . to support a
finding that [defendant] aided and abetted implied malice
murder.” These assertions also lack merit. Although the court
did not recite the elements of implied malice murder in its ruling,
section 1172.6 did not require that recitation and nothing in the
record indicates that the court misunderstood those elements; in
applying substantial evidence review, we construe a trial court’s
silence as evincing a proper understanding and application of the
law—not, as defendant would suggest, as evincing a
misunderstanding and misapplication of the law. (In re Julian R.
(2009) 47 Cal.4th 487, 498-499; In re Johnson (1965) 62 Cal.2d
325, 330; see generally Evid. Code, § 664.) Defendant is correct
that shooting a gun into the air does not compel a finding of a
high degree of probability of death, but it can support one—and
that is all that matters for substantial evidence review. (In re
Ferrell (2023) 14 Cal.5th 593, 606-607 [so holding].) And even if
we assume that it could not support such a finding, any error in
the trial court’s alternative ruling based on its assumption that
Rosales only intended to scare the victims does not undermine its
primary ruling that Rosales intended to shoot them.
Second, defendant argues that the trial court should have
treated his relative youth at the time of the crime (he was 19
8
years old) “more seriously” as tending to negate his ability to
appreciate—and hence consciously disregard—the dangers of his
conduct. While youth is a relevant factor of implied malice (e.g.,
People v. Ramirez (2021) 71 Cal.App.5th 970, 987), the court here
explicitly considered and discussed defendant’s youth, and
further commented it did not “make its ruling lightly.” The court
nevertheless went on to conclude that defendant’s youth did not
entirely negate his otherwise callous conduct in supplying the
murder weapon, transporting the shooter to the location of the
shooting, facilitating the shooting by opening the hatchback, and
then driving off after remarking that Rosales “got one.” (Accord,
People v. Palomar (2020) 44 Cal.App.5th 969, 978 [failing to
assist a wounded victim manifests “a callous indifference to
human life”].) At bottom, defendant asks us to reweigh the
evidence differently than the trial court; this is beyond our
purview on substantial evidence review. (People v. Owens (2022)
78 Cal.App.5th 1015, 1022.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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