People v. Perez CA2/7

Filed 1/18/23 P. v. Perez CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B301466
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA028774)
v.
LUIS ALFREDO PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Reversed and remanded
with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Charles Lee and
Heidi Salerno, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
In 1999 Luis Alfredo Perez pleaded no contest to second
degree murder and admitted the allegation he personally used a
dangerous or deadly weapon in the commission of the offense
(Pen. Code, § 12022, subd. (b)(1)).1 The trial court sentenced him
to 16 years to life in state prison. Twenty years after his
conviction, Perez, representing himself, petitioned for
resentencing pursuant to former section 1170.95 (now
section 1172.6), seeking to vacate his murder conviction and be
resentenced in accordance with recent statutory changes relating
to accomplice liability for murder. After appointing counsel and
ordering briefing, the superior court determined Perez was not
entitled to relief because he was the actual killer. The court
relied on the transcript of Perez’s preliminary hearing, at which
two witnesses testified they saw Perez repeatedly and forcefully
strike his wife with a hammer in the back of her head.
In our original opinion we concluded the superior court did
not err in finding Perez ineligible for relief without issuing an
order to show cause and holding an evidentiary hearing because
it properly relied on the preliminary hearing transcript in finding
Perez, as the actual killer, was ineligible for relief.
On October 26, 2022 the Supreme Court granted Perez’s
petition for review and transferred the case to us with directions
to vacate our decision and reconsider Perez’s appeal in light of
People v. Lewis (2021) 11 Cal.5th 952 (Lewis). In supplemental
1 All further statutory references are to the Penal Code.
2
briefing Perez contends we should reverse the superior court’s
order denying Perez’s petition and remand for an evidentiary
hearing because under Lewis, the preliminary hearing transcript
is not part of the record of conviction, and the determination that
Perez was the actual killer requires factfinding not appropriate
at the prima facie stage. We agree and now reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at the Preliminary Hearing
At the January 12, 1998 preliminary hearing, Maria Elena
Vega testified she was the manager of the apartment building
where Perez lived with his two children and his wife, Aura
Leticia Morales. On December 4, 1997 Vega was in a storeroom
beneath Perez’s apartment with her sister-in-law Juana Salgado
Mendosa. At around 4:00 in the afternoon, Perez’s daughter
approached Vega and Mendosa. She screamed and said her
father was killing her mother. Vega exited the storeroom and
saw Perez standing over Morales on the stairs leading up to
Perez’s apartment. Morales was lying on the stairs. Perez struck
Morales in the back of her head five or six times with a hammer
he clasped in both hands. Morales was not moving. Vega called
the police.
Mendosa testified she was with Vega in the storeroom
when Perez’s daughter entered. Perez’s daughter was crying and
said her “daddy” was hitting her “mommy.” When Mendosa
approached the stairwell, she saw Perez hit Morales in the back
of her head two or three times with a hammer he held in both
hands. An autopsy showed Morales sustained 20 to 30 blows
causing blunt force trauma to her head, which caused her death.
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At the conclusion of the hearing, the court denied Perez’s
motion to dismiss the complaint for insufficient evidence (§ 995).
The court made a finding there was sufficient cause to believe
Perez was guilty of murder, and it held him to answer for the
crime.
B. The Information, Plea, and Sentencing
A January 27, 1998 information charged Perez with a
single count of second degree murder committed “with malice
aforethought” (§ 187, subd. (a)). The information specially
alleged Perez personally used a dangerous or deadly weapon, a
hammer, within the meaning of section 12022, subdivision (b)(1).
On December 9, 1999 Perez pleaded no contest to the single
count and admitted the special allegation he personally used a
hammer as a dangerous or deadly weapon in the commission of
the crime. Perez’s attorney stipulated to a factual basis for the
plea, but she did not reference the preliminary hearing
testimony. The trial court accepted Perez’s plea, found Perez
guilty of second degree murder, and found true the special
allegation. The court sentenced Perez to a life term with a 15-
year minimum parole eligibility date, plus a consecutive one-year
term under section 12022, subdivision (b). Perez did not appeal.
C. Perez’s Petition for Resentencing
On March 22, 2019 Perez, representing himself, filed a
form petition with a supporting declaration in the superior court
stating he had met the requirements under former
section 1170.95 for relief under Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Senate Bill 1437), including that (1) the information
allowed the prosecution to proceed under a theory of felony
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murder or the natural and probable consequences doctrine; (2) he
pleaded guilty or no contest to first or second degree murder in
lieu of going to trial because he believed he could have been
convicted of first or second degree murder at trial under the
felony murder rule or the natural and probable consequences
doctrine; and (3) he could not be convicted of first or second
degree murder under changes to sections 188 and 189, effective
January 1, 2019. Perez requested the court appoint him counsel
and vacate his murder conviction. With respect to his statement
he could not be convicted of first or second degree murder under
the 2019 amendments, Perez did not check the box on the form
petition stating he was not the actual killer or the box stating he
was not a direct aider and abettor who acted with the intent to
kill. He also did not check the box stating he was not a major
participant in the felony or did not act with reckless indifference
to human life.
On May 20, 2019 the superior court appointed counsel to
represent Perez, requested briefing from the parties, and set the
matter for a hearing. The People filed a response, arguing Perez
did not qualify for resentencing because the record of conviction
demonstrated he acted with malice aforethought as the actual
killer. The People attached the preliminary hearing transcript,
preplea report, and plea hearing transcript as exhibits to their
response. Perez filed a reply, but he only presented legal
arguments, without identifying any evidence he claimed would
have supported a finding he was not the actual killer.
At the August 29, 2019 hearing, the parties submitted on
their papers without argument. On September 6, 2019 the court
denied Perez’s petition, finding Perez was not entitled to relief as
a matter of law. In its minute order, the superior court found,
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“The court file reflects that defendant was the actual killer and
defendant also admitted the personal use of a deadly weapon in
the commission of the offense.”
Perez timely appealed.
DISCUSSION
A. Senate Bill 1437 and Section 1172.6 (Former
Section 1170.95)
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and significantly limited the scope of the felony-murder
rule. (People v. Strong (2022) 13 Cal.5th 698, 707-708; Lewis,
supra, 11 Cal.5th at p. 957; People v. Gentile (2020) 10 Cal.5th
830, 842-843, 847-848.) Section 188, subdivision (a)(3), now
prohibits imputing malice based solely on an individual’s
participation in a crime and requires proof of malice to convict a
principal of murder except under the revised felony-murder rule
as set forth in section 189, subdivision (e). That section requires
the People to prove specific facts relating to the defendant’s
individual culpability: The defendant was the actual killer
(§ 189, subd. (e)(1)); although not the actual killer, the defendant,
with the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life “as described
in subdivision (d) of Penal Code Section 190.2,” the felony-murder
special-circumstance provision (§ 189, subd. (e)(3)). (See Strong,
at p. 708.)
Senate Bill 1437 also provided a procedure (now codified in
section 1172.6) for an individual convicted of felony murder or
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murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; People
v. Gentile, supra, 10 Cal.5th at p. 847.) The ameliorative changes
to the law now apply to attempted murder and voluntary
manslaughter. (§ 1172.6, subd. (a).)
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1172.6,
subdivision (b)(3). Further, upon the filing of a facially sufficient
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1172.6,
subd. (c).) Where a petitioner makes the requisite prima facie
showing he or she falls within the provisions of section 1172.6
and is entitled to relief, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1172.6, subds. (c) & (d)(1).)
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B. The Superior Court Erred in Denying Perez’s Petition
Without Issuing an Order To Show Cause
Perez contends the superior court erred in denying his
petition without issuing an order to show cause and holding an
evidentiary hearing because the court’s consideration of the
preliminary hearing testimony in denying Perez’s petition
required the court to engage in impermissible factfinding in
determining he was the actual killer and could still be convicted
of murder under the 2019 amendments.
In light of the Supreme Court’s holding in Lewis, supra,
11 Cal.5th at page 972, we agree with Perez. As discussed, where
a defendant makes a prima facie showing he or she falls within
the provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing. (§ 1172.6, subds. (c) & (d)(1).) Perez averred in his
petition for resentencing that (1) he pleaded no contest to second
degree murder in lieu of going to trial because he believed he
could have been convicted at trial under the felony murder rule or
the natural and probable consequences doctrine, and (2) he could
not now be convicted of second degree murder under the 2019
amendments. Notably, although Perez did not check the box on
the form petition stating he was not the actual killer, his
statement under penalty of perjury that he could not now be
convicted of murder because of changes in the law establishes a
prima facie case of eligibility for relief under section 1172.6.
As the Supreme Court instructed in Lewis, in determining
whether the petitioner has made a prima facie showing he or she
is entitled to relief under former section 1170.95, subdivision (c),
“[l]ike the analogous prima facie inquiry in habeas corpus
proceedings, ‘“the court takes petitioner’s factual allegations as
8
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause.”’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘However, if
the record, including the court’s own documents, “contain[s] facts
refuting the allegations made in the petition,” then “the court is
justified in making a credibility determination adverse to the
petitioner.”’” (Lewis, supra, 11 Cal.5th at p. 971.) But “[i]n
reviewing any part of the record of conviction at this preliminary
juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’” (Id. at
p. 972.) Rather, at the prima facie review stage, the court’s
review is limited to “‘readily ascertainable facts’” in the record,
such as the jury instructions, the record of the crimes committed,
and jury findings on the enhancements. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; see People v. Harden
(2022) 81 Cal.App.5th 45, 50 [considering jury instructions and
verdicts to determine whether the record of conviction
conclusively established that defendant was actual killer]; People
v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering as part of
record of conviction the jury instructions, closing arguments, and
verdicts, which did not show defendant was ineligible for relief
based on jury’s true findings on felony-murder special-
circumstance allegation].)
The People acknowledge there is a split of authority post-
Lewis as to whether a preliminary hearing transcript may be
considered as part of the record of conviction where a petitioner
admits the transcript provides a factual basis for the plea. (See
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People v. Flores (2022) 76 Cal.App.5th 974, 991 [preliminary
hearing transcript may not be relied on to establish ineligibility
for relief even with stipulation that transcript provided factual
basis for plea]; see also People v. Rivera (2021) 62 Cal.App.5th
217, 238 [stipulation to grand jury transcript as factual basis for
plea does not allow use of testimony to establish ineligibility for
relief]; but see People v. Davenport (2021) 71 Cal.App.5th 476,
481 [rejecting argument that preliminary hearing transcript may
never be relied on as part of record of conviction, but transcript
may only be considered if petitioner admits it provides factual
basis for plea].) We need not decide whether the preliminary
hearing transcript may ever be considered at the prima facie
review stage because neither Perez nor his attorney stipulated
that the preliminary hearing transcript provided a factual basis
for his plea. And, following Lewis, consideration of testimony in
the preliminary hearing transcript, absent an admission the
testimony is true or a stipulation that the transcript provides a
factual basis for the plea, involves judicial factfinding not
appropriate at the prima facie review stage. (See Lewis, supra,
11 Cal.5th at p. 972.)
The People suggest the superior court could have
considered the preliminary hearing transcript at the prima facie
review stage (in addition to the information) to show the People
did not intend to proceed on a theory of liability other than that
Perez was the actual killer. However, neither the fact Perez was
charged with murder with malice aforethought nor the People’s
presentation of evidence at the preliminary hearing precluded the
People from proceeding on a theory of imputed malice. (See
People v. Flores, supra, 76 Cal.App.5th at p. 987 [generic murder
charge does not exclude any particular theory of murder]; People
10
v. Eynon (2021) 68 Cal.App.5th 967, 977-978 [same]; People v.
Rivera, supra, 62 Cal.App.5th at p. 233 [same].)
Finally, contrary to the People’s contention, Perez’s
admission he personally used a hammer in the commission of the
murder does not necessarily establish that he was the actual
killer. We recognize that two witnesses testified at the
preliminary hearing that Perez killed his wife by repeatedly and
forcefully striking her in the back of her head with a hammer.
But, as discussed, the superior court cannot consider the
preliminary hearing testimony in deciding at the prima facie
review stage whether Perez was ineligible for resentencing as a
matter of law. And there are possible—albeit unlikely—scenarios
under which Perez’s personal use of a hammer would not mean
he was the actual killer. As the Supreme Court explained in
People v. Jones (2003) 30 Cal.4th 1084, 1119-1120, in rejecting
the argument the defendant’s admission of personal use of a
firearm necessarily meant he was the actual killer of a
restaurant manager where he and a confederate robbed the
restaurant, “The finding of personal use, however, would not in
itself prove defendant was the actual killer. If two robbers
display guns to intimidate robbery victims and one shoots and
kills a victim, both robbers could be found to have personally
used a gun in the robbery and the felony murder, even though
only one is the actual killer.” (Id. at p. 1120.)
Even assuming the People present evidence at the
evidentiary hearing consistent with the preliminary hearing
testimony, Perez could theoretically present evidence, like the
hypothetical example in Jones, that he and a confederate entered
Morales’s apartment to rob her, threatening her with hammers,
but in the course of the robbery the confederate used his hammer
11
to strike the fatal blow. Under Lewis, the superior court cannot
deny a petition at the prima facie review stage where there is
even an abstract possibility, implausible as it may be, that the
defendant can present evidence that would show he is eligible for
resentencing. The trial court’s finding to the contrary based on
the preliminary hearing transcript was based on factfinding not
appropriate at the prima facie review stage.
DISPOSITION
The order denying Perez’s petition for resentencing is
reversed. On remand the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1172.6, subdivision (d).
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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