People v. Perez

Filed 9/18/20
CERTIFIED FOR PUBLICATION
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. Affirmed.
Jonathan E. Demson, 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, Assistant
Attorney General, Charles Lee and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Luis Alfredo Perez appeals from a postconviction order
denying his petition for resentencing filed under Penal Code
section 1170.95 1 as to his second degree murder conviction (§ 187,
subd. (a)) entered after Perez pleaded no contest to second degree
murder and admitted the allegation he personally used a
dangerous or deadly weapon (§ 12022, subd. (b)(1)). After
appointing counsel and ordering briefing, the superior court
determined Perez was not entitled to relief under section 1170.95
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. On appeal Perez
contends the superior court erred in finding Perez ineligible for
relief without issuing an order to show cause and holding an
evidentiary hearing. Perez also argues the court’s reliance on the
preliminary hearing testimony violated his Sixth Amendment
right to a jury trial.
We conclude the trial court properly considered the
preliminary hearing transcript as part of the second step of the
court’s prima facie review of Perez’s petition in determining
whether Perez had made a prima facie case of eligibility for relief.
Because Perez failed to make an offer of proof of evidence he
could present at an evidentiary hearing to show he was not the
actual killer, we affirm.
1 All further undesignated statutory references are to the
Penal Code.
2
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.
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.
3
B. The Information, Plea, and Sentencing
A January 27, 1998 information charged Perez with a
single count of second degree murder (§ 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. Postconviction Proceedings
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 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 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
4
sections 188 and 189, effective January 1, 2019. Perez requested
the court appoint him counsel and vacate his murder conviction.
With respect to his affirmation 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
abetter 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 its
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,
“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.
5
DISCUSSION
A. Senate Bill 1437
On September 30, 2018 Senate Bill 1437 (2017-2018 Reg.
Sess.) was signed into law, effective January 1, 2019. Senate Bill
1437 was enacted to “amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to
murder, 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.” (Sen. Bill 1437
(2017-2018 Reg. Sess.) § 1; see People v. Verdugo (2020)
44 Cal. App. 5th 320, 325 (Verdugo), review granted Mar. 18. 2020,
S260493; People v. Martinez (2019) 31 Cal. App. 5th 719, 723.)
New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal 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.” Senate Bill 1437 also added section
189, subdivision (e), which provides, “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”
6
Senate Bill 1437 provides a procedure in new section
1170.95 for an individual convicted of felony murder or 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. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (b)(1), provides that the petition “shall be filed with
the court that sentenced the petitioner.” 2 The petition must
include a declaration by the petitioner stating he or she is eligible
for relief under the section, providing the superior court case
number and year of the conviction, and indicating whether he or
she requests the appointment of counsel. (§ 1170.95,
subd. (b)(1).)
The Legislature intended for there to be a three-step
evaluation of a section 1170.95 petition. (Verdugo, supra,
44 Cal.App.5th at pp. 328, 332-333.) As we explained in Verdugo,
“If any of the required information is missing and cannot be
readily ascertained by the court, ‘the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.’ (§ 1170.95, subd. (b)(2).) [¶] If the petition
contains all required information, section 1170.95,
subdivision (c), prescribes a two-step process for the court to
determine if an order to show cause should issue: ‘The court
shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
2 Judge Shari K. Silver, who was the sentencing judge,
retired in 2013.
7
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply . . . . If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.’” (Verdugo, at p. 327; see People v.
Nguyen (Aug. 25, 2020, B298575) ___ Cal.App.5th ___ [2020 WL
5015289, at p. *7] (Nguyen) [§ 1170.95, subd. (c), provides for two
prima facie reviews]; People v. Torres (2020) 46 Cal. App. 5th 1168,
1177, review granted June 24, 2020, S262011 [“subdivisions (b)
and (c) of [section 1170.95] require the trial court to make three
separate determinations”]; but see People v. Cooper (Sept. 1,
2020, A156880) ___ Cal.App.5th ___ [2020 WL 5175210, at p. *4]
[once the trial court determines the petition contains the required
information, the court performs a single prima facie review, and
if the petitioner makes a prima facie showing of entitlement to
relief, the court issues an order to show cause].)
In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), “[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
8
subd. (d) is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of
discretion . . . .” (People v. Drayton (2020) 47 Cal. App. 5th 965,
980 (Drayton); accord, Nguyen, supra, ___ Cal.App.5th ___ [2020
WL 5015289, at p. *7].)
After issuing an order to show cause, the superior court
must hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts . . . .” (§ 1170.95,
subd. (d)(1).) If a hearing is held, “[t]he prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (§ 1170.95,
subd. (d)(3); see People v. Lewis (2020) 43 Cal. App. 5th 1128,
review granted Mar. 18, 2020, S260598.) 3 The prosecution has
the burden of proving beyond a reasonable doubt the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
B. The Superior Court Did Not Err 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
3 The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal. App. 5th 1128.)
9
evidentiary hearing. He argues the court should not have
considered the preliminary hearing testimony to determine he
was the actual killer and could be convicted of first or second
degree murder under the 2019 amendments.
“[O]ur analysis of the trial court’s order focuses on the trial
court’s interpretation of section 1170.95(c), and we therefore
review its order de novo.” (Drayton, supra, 47 Cal.App.5th at
p. 981; see ZB, N.A. v. Superior Court (2019) 8 Cal. 5th 175, 188
[questions of statutory interpretation are reviewed de novo].) As
discussed, as part of the court’s inquiry under section 1170.95,
subdivision (c), into whether the petitioner has made a prima
facie showing of entitlement to relief, the court may consider the
petitioner’s record of conviction to determine “‘readily
ascertainable facts.’” (Nguyen, supra, ___ Cal.App.5th at p. ___
[2020 WL 5015289, at pp. *7-*9] [preliminary and plea hearing
transcripts demonstrated petitioner pleaded guilty as a direct
aider and abettor of second degree murder where he stipulated
the factual basis for his guilty plea was the preliminary hearing
and there was no testimony at the preliminary hearing about an
underlying felony or mention of felony murder or the natural and
probable consequences doctrine]; accord, Drayton, at p. 980
[Court of Appeal reviewed preliminary hearing transcript and
concluded superior court erred in denying petition without
evidentiary hearing where transcript showed petitioner was not
the actual shooter and there was no finding he was a major
participant in the underlying robbery or acted with reckless
indifference to human life].) 4
4 The petitioner in Drayton did not argue in response to the
prosecutor’s opposition that the trial court should not consider
10
The preliminary hearing transcript is part of the record of
conviction. At the preliminary hearing, testimony is presented,
and a magistrate makes a finding whether there is probable
cause to conclude the defendant has committed the offense
charged. (§ 872 [defendant is held to answer to complaint upon
finding by magistrate “there is sufficient cause to believe that the
defendant is guilty”]; Galindo v. Superior Court (2010) 50 Cal. 4th
1, 8 [“The purpose of the preliminary hearing is to determine
whether there is probable cause to conclude that the defendant
has committed the offense charged. [Citations.] Probable cause
exists if a person ‘“‘“of ordinary caution or prudence would be led
to believe and conscientiously entertain a strong suspicion”’”’ that
the defendant committed the crime.”]; People v. Posey (2004)
32 Cal. 4th 193, 206 [“In deciding whether to dismiss a criminal
action for lack of probable cause to believe the defendant has
committed the crime charged, the court similarly determines
whether there exists ‘such a state of facts as would lead a
the preliminary hearing transcript, instead asserting the court
should issue an order to show cause because he was convicted on
a theory of felony murder (which was undisputed) and the facts
showed he did not act with reckless indifference to human life
during the underlying robbery because he never fired his gun,
and he tried to stop the robbery but was afraid because one of his
coparticipants pointed a gun at him. (Drayton, supra,
47 Cal.App.5th at pp. 970-971.) The Drayton court “express[ed]
no opinion whether it is appropriate for the trial court to
substantively analyze documents from the trial court record
rather than using them solely to ascertain basic facts, such as the
crime of conviction, when assessing the petition’s prima facie
showing of eligibility under section 1170.95(c).” (Drayton, at
p. 976, fn. 6.)
11
[person] of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of the [defendant’s]
guilt’ [citation].”].)
We recognize that unless a defendant or his or her counsel
stipulates to a factual basis for a plea based on the preliminary
hearing transcript, as in Nguyen, supra, ___ Cal.App.5th ___
[2020 WL 5015289, at page *7], the magistrate’s finding of
probable cause at the preliminary hearing does not have the
evidentiary weight of a jury’s finding of guilt at trial. As the
Supreme Court explained in People v. Slaughter (1984) 35 Cal. 3d
629, 637, “‘Within the framework of his limited role, . . . the
magistrate may weigh the evidence, resolve conflicts, and give or
withhold credence to particular witnesses. [Citation.] In other
words, in assisting him in his determination of “sufficient cause,”
the magistrate is entitled to perform adjudicatory functions akin
to the functions of a trial judge. Yet the proceeding is not a trial,
and if the magistrate forms a personal opinion regarding the
guilt or innocence of the accused, that opinion is of no legal
significance whatever in view of the limited nature of the
proceedings.’”
But that does not mean the trial court cannot consider the
preliminary hearing testimony in determining as part of its
second prima facie review under section 1170.95, subdivision (c),
whether the petitioner has made a prima facie showing he or she
is entitled to relief and an order to show cause should issue.
Perez’s position that the trial court should not consider the
preliminary hearing transcript in deciding whether to issue an
order to show cause where the petitioner is found guilty pursuant
to a negotiated plea would render meaningless the second step of
the prima facie review because the petitioner’s averment in the
12
petition that he or she falls within the statute—by stating (1) the
information allowed the prosecution to proceed under a theory of
felony murder or the natural and probable consequences doctrine;
(2) he or she pleaded guilty or no contest to first or second degree
murder in lieu of going to trial on the belief he or she could have
been convicted of first or second degree murder at trial under one
of those theories; and (3) he or she could not now be convicted of
first or second degree murder because of changes to sections 188
and 189—would in most cases necessarily mean the petitioner
has made a prima facie case of entitlement to relief.
We do not read the statute so narrowly. Rather, as part of
the second step of the trial court’s prima facie review under
section 1170.95, subdivision (c), the court may consider the
testimony presented at the preliminary hearing, but the
petitioner has an opportunity to present contrary evidence or
make an offer of proof of evidence the petitioner could present at
an evidentiary hearing to show he or she is entitled to relief.
This could include an offer of proof of conflicting testimony or
other evidence the petitioner could present or of discussions on
the record showing the prosecutor intended to proceed on an
alternative theory of aider and abettor liability under the felony
murder or natural and probable consequences doctrine.
Here, the information charged Perez with first degree
murder with malice aforethought. He was not charged with an
underlying crime, nor was there any discussion on the record that
suggested the People intended to proceed on a theory of liability
other than that Perez was the actual killer. Further, Perez did
not make an offer of proof he could present testimony or other
evidence to show he was not the actual killer. He likewise
admitted he had personally used a weapon in the commission of
13
the murder but failed to make a showing (or offer of proof) that
this admission was based on a theory other than that his use of
the hammer repeatedly to strike Morales led to her death.
The superior court therefore did not err in determining
based on the record of conviction, including the preliminary
hearing testimony, that Perez failed to make a prima facie
showing he was entitled to relief under section 1170.95,
subdivision (c). The evidence adduced at the preliminary
hearing—that Perez killed his wife by repeatedly and forcefully
striking her in the back of her head with a hammer—shows Perez
pleaded no contest to the murder based on a theory he was the
actual killer.
Perez’s averments—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—are inconsistent with the record of conviction and
were properly rejected by the superior court. Moreover, Perez did
not aver in his petition he was not the actual killer, and he failed
to identify in his reply (or on appeal) a factual scenario under
which he was not the actual killer.
Perez acknowledges the superior court was not required to
accept as true averments in Perez’s declaration that were
contradicted by readily ascertainable facts from the record of
conviction, but he contends the superior court’s reliance on the
preliminary hearing testimony violated his Sixth Amendment
right to a jury trial by increasing his punishment based on facts
never found by the jury (that he was the actual killer), relying on
People v. Gallardo (2017) 4 Cal. 5th 120 (Gallardo).
14
Perez’s reliance on Gallardo is misplaced. The Supreme
Court in Gallardo held a trial court may not rely on the
preliminary hearing transcript to determine the nature of the
defendant’s prior conviction for purposes of sentencing where the
record of conviction did not show whether the defendant’s
conviction under former section 245, subdivision (a)(1), was of
assault with a deadly weapon or assault with force likely to
produce great bodily injury. (Gallardo, supra, 4 Cal.5th at
p. 137.) The defendant had pleaded guilty to the prior assault,
but she did not admit whether she had used a deadly weapon.
(Ibid.) The Supreme Court held the trial court had engaged in
improper judicial factfinding in violation of the Sixth
Amendment, explaining, “Because the relevant facts were neither
found by a jury nor admitted by defendant when entering her
guilty plea, they could not serve as the basis for defendant’s
increased sentence here.” (Id. at pp. 136-137.)
In contrast to the sentencing at issue in Gallardo, “the
retroactive relief [petitioners] are afforded by Senate Bill 1437 is
not subject to Sixth Amendment analysis. Rather, the
Legislature’s changes constituted an act of lenity that does not
implicate [the petitioners’] Sixth Amendment rights.” (People v.
Anthony (2019) 32 Cal. App. 5th 1102, 1156 [rejecting petitioners’
argument failure to consider § 1170.95 petition on direct appeal
violated constitutional right to a jury trial]; accord, People v.
Perez (2018) 4 Cal. 5th 1055, 1063-1064 [trial court may make
factual findings based on new evidence regarding a petitioner’s
eligibility for resentencing under Proposition 36, as approved by
voters, Gen. Elec. (Nov. 6, 2012), because retroactive application
of the benefits from the proposition are a legislative act of lenity
that does not implicate Sixth Amendment rights]; see Dillon v.
15
U.S. (2010) 560 U.S. 817, 828 [federal sentence modification
scheme authorizing district courts to reduce otherwise final
sentences “represents a congressional act of lenity” that “do[es]
not implicate the Sixth Amendment right to have essential facts
found by a jury beyond a reasonable doubt”].) 5
Because Senate Bill 1437 is not subject to a Sixth
Amendment analysis, Gallardo did not prohibit the superior
court from considering the preliminary hearing transcript as part
of Perez’s record of conviction in evaluating whether Perez had
made a prima facie showing he was entitled to relief under
section 1170.95, subdivision (c).
DISPOSITION
The order denying Perez’s petition for resentencing is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
5 Because we conclude the superior court appropriately relied
on the preliminary hearing transcript in denying Perez’s petition,
we do not reach Perez’s contention the superior court also erred
in relying on the probation report.
16