People v. Perez CA2/3

Filed 9/8/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B294053
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA020781
v.
FRANCISCO PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael Schultz, Judge. Dismissed.
Amy M. Karlin, Interim Federal Public Defender,
C. Pamela Gómez, Deputy Federal Public Defender, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
INTRODUCTION
Defendant Francisco Perez was sentenced to life without
the possibility of parole (LWOP) for a murder he committed when
he was 17 years old. The trial court subsequently resentenced
Perez but again imposed LWOP. Perez asks us to vacate that
sentence because, he claims, the court neither understood the
scope of its sentencing discretion nor considered the hallmarks of
youth, and his LWOP sentence is unconstitutional because it
serves no legitimate penological purpose. While this appeal was
pending, however, Perez was released on parole—a circumstance
the People contend moots this appeal. We agree with the People
and dismiss the appeal.1
BACKGROUND2
In 1993, Perez was convicted of first degree murder (Pen.
Code,3 § 187, subd. (a)), committed during a robbery (§ 190.2,
subd. (a)(17)), and attempted second degree robbery (§ 664/211).
The jury also found firearm allegations (§ 12022.5, subd. (a)) true.
At the time he committed the offenses, Perez was 17 years old.
The court sentenced him to LWOP plus six years, which was
modified on appeal to LWOP.
In 2016 and 2018, defendant filed a petition to recall his
sentence and for resentencing under section 1170,
subdivision (d)(2) and a sentencing memorandum in support of
1 As such, we do not address Perez’s challenges to his sentence.
2Because the underlying facts of this case are irrelevant to the issue
before us, we do not address them.
3 All undesignated statutory references are to the Penal Code.
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the petition, in which he asked the court to resentence him to a
term of 25 years to life. In 2018, defendant filed a petition for
writ of habeas corpus, arguing his sentence violated the Eighth
Amendment to the Federal Constitution (Miller v. Alabama
(2012) 567 U.S. 460) and section 190.5, subdivision (b), because
he committed the offense when he was a juvenile. In a related
sentencing memorandum, he argued that he should be
resentenced to a term of 25 years to life in prison.
The court held a contested hearing on both petitions on
September 28, 2018. The court denied the habeas petition on the
ground that recent legislation (Sen. Bill No. 394 (2017–2018 Reg.
Sess.) § 1) had essentially converted the LWOP sentence into a
sentence of 25 years to life in prison, rendering the habeas
petition moot. As to the petition under section 1170,
subdivision (d)(2), the court found that Perez had made the
required prima facie showing for relief, recalled the sentence,
conducted a new sentencing hearing, and reimposed the LWOP
sentence.
Perez filed a notice of appeal indicating he was appealing
“from the order and judgment of the Court entered on
September 28, 2018 in this case and its related Petition for Writ
of Habeas Corpus”—but because Perez had purported to appeal
from the order denying the habeas petition, and, in cases not
involving judgments of death, no appeal lies from a superior
court’s denial of a habeas petition, this court’s Administrative
Presiding Justice dismissed the appeal. The California Supreme
Court granted Perez’s petition for review and transferred the
matter to this court, with directions to vacate the dismissal and
determine whether the trial court made a final order on an
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appealable issue related to the section 1170, subdivision (d)(2),
petition.
Accordingly, we vacated the dismissal and sought further
briefing from the parties. We ultimately held that the trial court
had ruled on the section 1170, subdivision (d)(2), petition and
that such a ruling was an appealable order. (§ 1237, subd. (b);
People v. Lopez (2016) 4 Cal. App. 5th 649, 653.) We therefore
reinstated the appeal.
On June 30, 2019, Perez was granted parole. He was
released from state prison on July 2, 2019.
DISCUSSION
“ ‘The duty of this court, as of every other judicial tribunal,
is to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.’
[Citation.]” (In re Miranda (2011) 191 Cal. App. 4th 757, 762.)
Here, Perez’s appeal is moot because the remedy he seeks (a
shorter sentence) and the remedy we can provide (another
resentencing hearing) are no remedy at all to one who has
already been released from prison.
Perez contends that because of his LWOP sentence, “he
remains subject to special conditions of parole” and “a reversal in
this case would have the practical effect of changing Perez’s
parole conditions, by for example, reducing the amount of time he
would be subject to parole … .” But Perez cites no authority to
support this claim, and our research has revealed none. To the
contrary, everyone convicted of murder in California is subject to
lifetime parole. (§ 3000.1, subd. (a)(1).) Murder parolees are
eligible for discharge from parole after seven years for first
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degree murder and after five years for second degree murder.
(Id., subd. (b).) And, all paroled murderers are subject to the
highest level of parole supervision: High Control. (Cal. Code
Regs., tit. 15, § 3504, subd. (a)(1).) These rules do not treat
juvenile LWOP parolees differently from murder parolees
sentenced to shorter indeterminate terms.
Perez also notes that as a parolee, he remains in
constructive state custody and is subject to restraints on his
liberty. Be that as it may, he does not explain what effect, if any,
resentencing would have on either the constructive custody or the
restraints. In the cases he cites, the courts decided the merits of
habeas petitioners’ challenges to their underlying convictions
notwithstanding their subsequent release on parole. (In re
Palmer (2019) 33 Cal. App. 5th 1199, 1203, review granted
July 31, 2019, S256149; Berman v. Cate (2010) 187 Cal. App. 4th
885, 892.) Here, however, Perez does not challenge his underlying
convictions; he challenges only his sentence.
Because we are unable to provide Perez any effective relief
in the case before us, we conclude the appeal is moot and dismiss
it.4
4 In his briefing below, Perez noted that conditions of confinement for
inmates serving LWOP differ from conditions imposed on inmates
serving indeterminate life sentences. As Perez is not currently
confined, however, those conditions do not render this appeal
justiciable.
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DISPOSITION
The appeal is dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
DHANIDINA, J.
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