People v. Perez CA2/3

Filed 4/19/22 P. v. Perez CA2/3
(opinion on 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B298897
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA112332)
v.
ANTONIO PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Janet Uson, 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, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Antonio Perez appeals from a postjudgment
order denying his Penal Code section 1170.95 petition.1 Without
appointing counsel for Perez, the trial court found him ineligible
for relief as a matter of law because he was convicted of
attempted murder, not murder. We affirmed the trial court’s
order, and our Supreme Court granted review. Thereafter,
People v. Lewis (2021) 11 Cal.5th 952 (Lewis) held that counsel
must be appointed for a defendant upon the filing of a facially
sufficient petition, and the Legislature enacted Senate Bill
No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775) which, among
other things, expanded section 1170.95 to encompass attempted
murder. Our Supreme Court has transferred the matter back to
us with directions to vacate our prior decision and reconsider the
cause in light of Lewis and Senate Bill 775. We do so, and again
affirm the trial court’s denial of the petition. Although the trial
court erred by failing to appoint counsel, the error was harmless.
Perez is ineligible for section 1170.95 relief as a matter of law
because his jury was not instructed upon, and he was not
convicted under, the natural and probable consequences doctrine
or the felony-murder rule.
1
All further undesignated statutory references are to the
Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND2
1. Facts
Perez and his codefendant, Jacori Armon Williams, were
members of the Front Hood Crips criminal street gang. In April
2010, the Front Hood Crips frequented West 137th Street in
Compton. The gang was engaged in a “war” with several other
gangs. Their gang rivals included the B-13’s, a Latino gang
whose members had been moving into some of the apartments
located on 137th Street.
On April 4, 2010, L.T. was living with his grandmother on
West 137th Street. That morning, as he was walking home from
the market with his uncle, Williams approached him, stated that
he was “Ice from Front Hood,” and asked what gang L.T. was
from. L.T. replied, “nowhere,” and continued to walk home.
Later that day, L.T. was washing his grandmother’s car in front
of their residence. Perez drove up in a minivan and blocked the
driveway. Williams emerged from the van, pointed a handgun at
L.T., and without saying a word, pulled the trigger rapidly three
or four times. L.T. ducked behind his grandmother’s car. L.T.’s
uncle walked up to Williams and told him “this ain’t about to
happen.” Williams returned to the van, and he and Perez drove
away.
On April 18, 2010, a gold sedan occupied by four African
American men drove down the 800 block of West 137th Street.
2
We have taken judicial notice of the records in Perez’s prior
appeals at the People’s request (Evid. Code, §§ 451, 452, 459),
and derive the factual and procedural background in part from
this Division’s unpublished opinions, which are part of the record.
We limit our discussion to a summary of the facts underlying
Perez’s convictions.
3
Perez shot at the car from one side of the street, and then from
the other side. Police recovered six shell casings and an
expended round from the scene.
2. Procedure
A jury convicted Perez of five counts of attempted willful,
deliberate, and premeditated murder (§§ 664, 187, subd. (a)), five
counts of assault with a firearm (§ 245, subd. (a)(2)), shooting at
an occupied vehicle (§ 246), and possession of a firearm by a felon
(former § 12021, subd. (a)(1)). The jury also found true gang and
firearm enhancements, including that a principal was armed
with a firearm in the attempted murder of L.T. (§ 12022,
subd. (a)(1)), and that Perez personally used and intentionally
discharged a firearm in the other attempted murders (§ 12022.53,
subds. (b), (c)). The trial court sentenced Perez to 231 years to
life in prison. A different panel of this Division affirmed Perez’s
convictions in an unpublished opinion issued in January 2014.
(People v. Perez (Jan. 14, 2014, B238303) [nonpub. opn.].)
On May 17, 2019, Perez filed a petition for resentencing
pursuant to section 1170.95, and requested the appointment of
counsel. The trial court denied the petition without appointing
counsel. The court’s minute order stated, “The petitioner was
convicted of 5 counts of attempted, willful, deliberate and
premeditated murder. The statute only applies to individuals
convicted of first or second degree murder. Petitioner does not
qualify for resentencing under Penal Code section 1170.95.” This
court again affirmed. (People v. Perez (July 21, 2020, B298897)
[nonpub. opn.].)
Thereafter, our Supreme Court granted review. (People v.
Perez, Sept. 30, 2020, S264073.) On February 16, 2022, the
Supreme Court transferred the matter back to us with
4
instructions to vacate our July 2020 opinion and reconsider the
cause in light of Senate Bill 775 and Lewis, supra, 11 Cal.5th 952.
As directed, we have vacated our prior opinion. We reconsider
the cause in light of Lewis, Senate Bill 775, and the parties’
supplemental briefs.
DISCUSSION
Perez contends that the trial court’s summary denial of his
petition, without appointing counsel, on the ground that section
1170.95 did not extend to the offense of attempted murder, was
erroneous. We agree that the trial court’s ruling that attempted
murder is not encompassed in section 1170.95—while correct at
the time made—is erroneous under current law. We also agree
that in light of Lewis, the trial court erred by failing to appoint
counsel for Perez. However, because Perez was not convicted on
a felony-murder or natural and probable consequences theory,
the petition was properly denied and the failure to appoint
counsel was harmless.
1. Applicable legal principles
Senate Bill 1437 limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (Lewis, supra, 11
Cal.5th at pp. 957, 959; People v. Gentile (2020) 10 Cal.5th 830,
842–843.) To achieve these goals, Senate Bill 1437 added section
189, subdivision (e) (limiting application of the felony murder
rule) and section 188, subdivision (a)(3) (stating that “ ‘[m]alice
shall not be imputed to a person based solely on his or her
participation in a crime.’ ”) (Gentile, at pp. 842–843.) Senate Bill
1437 also added section 1170.95, which created a procedure
whereby persons convicted of murder under a now-invalid felony-
5
murder or natural and probable consequences theory may
petition for vacation of their convictions and resentencing.
Since the trial court’s ruling and this court’s 2020
affirmance, the law has been changed or clarified in two respects
that are relevant here. First, our Supreme Court resolved a split
of authority in the appellate courts and clarified the proper
procedure for the evaluation of a section 1170.95 petition. The
defendant is entitled to the appointment of counsel, if requested,
upon the filing of a facially sufficient petition, that is, one that
makes the necessary averments, without regard to his or her
eligibility for relief. (Lewis, supra, 11 Cal.5th at pp. 957, 963.)
Senate Bill 775 subsequently amended section 1170.95 to codify
this holding, and now expressly states, “Upon receiving a petition
in which the information required by this subdivision is set
forth . . . if the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner.” (§ 1170.95,
subd. (b)(3); see Sen. Bill 775, § 1, subd. (b).) Thus, section
1170.95 does not allow for summary denial based on a petitioner’s
ineligibility prior to the appointment of counsel. (Lewis, at
p. 957.) Error in failing to appoint counsel pursuant to section
1170.95 is subject to harmless error review under the standard
articulated in People v. Watson (1956) 46 Cal.2d 818. (Lewis, at
pp. 957–958 [“deprivation of [the] right to counsel under
subdivision (c) of section 1170.95 [is] state law error only, tested
for prejudice under” Watson].) Under that standard, to establish
reversible error a defendant must “ ‘demonstrate there is a
reasonable probability that in the absence of the error he . . .
would have obtained a more favorable result.’ ” (Id. at p. 974.)
Second, as originally enacted, section 1170.95’s express
language encompassed only murder, not attempted murder or
6
manslaughter. Accordingly, prior to enactment of Senate Bill
775, California appellate courts concluded that section 1170.95
did not extend to convictions for those offenses. (See People v.
Flores (2020) 44 Cal.App.5th 985, 993–994.) Effective January 1,
2022, Senate Bill 775 amended section 1170.95 to expressly
encompass attempted murder and manslaughter.3 (§ 1170.95,
subd. (a); see also subd. (d)(1); People v. Porter (2022) 73
Cal.App.5th 644, 651–652.) Under In re Estrada (1965) 63 Cal.2d
740, we assume that, absent contrary evidence, an amendment
reducing punishment for a crime applies retroactively to all
nonfinal judgments. (Id. at p. 745; People v. Brown (2012) 54
Cal.4th 314, 323; see People v. Garcia (2018) 28 Cal.App.5th 961,
972–973.) Such is the case with Senate Bill 775. (People v.
Montes (2021) 71 Cal.App.5th 1001, 1006–1007; Porter, at
p. 652.) For retroactivity purposes, a judgment is not final until
the time for petitioning for a writ of certiorari in the United
States Supreme Court has passed. (People v. Vieira (2005) 35
Cal.4th 264, 306.) Wright’s appeal of the denial of his section
1170.95 petition was not final when Senate Bill 775 took effect,
and therefore the amendments apply retroactively to him.
3
The statute now provides: “A person convicted of felony
murder or 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,
attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated . . . .”
(§ 1170.95, subd. (a).)
7
2. Perez is ineligible for relief as a matter of law; the failure
to appoint counsel was harmless error
People v. Lewis compels the conclusion that the trial court
erred by summarily denying the petition without appointing
counsel for Perez. And, amended section 1170.95 extends to the
offense of attempted murder. Nonetheless, Perez is ineligible for
section 1170.95 relief as a matter of law.
To be eligible for resentencing, Perez was required to show
that he “could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3).) Potential relief under
section 1170.95 extends only to those convicted of attempted
murder by operation of the natural and probable consequences
doctrine or the felony-murder rule. (People v. Mancilla (2021) 67
Cal.App.5th 854, 866–867; People v. Cortes (2022) 75 Cal.App.5th
198, 204–205.) The record of conviction conclusively
demonstrates that Perez cannot make such a showing. “The fact
that a petitioner was not ‘convicted of felony murder or murder
under a natural and probable consequences theory’ [citation] at
trial may be conclusively determined if, for example, the jury did
not receive instructions on either theory.” (People v. Rivera
(2021) 62 Cal.App.5th 217, 236.) Perez’s jury was not instructed
on either of these theories, or on any theory of liability that
allowed malice to be imputed to him. His jury was instructed,
instead, that a defendant could be guilty either as the perpetrator
of the crime, or as a direct aider and abettor who had the intent
to kill. Therefore, Perez necessarily was convicted on a theory
that survives the changes to sections 188 and 189 enacted by
Senate Bill 1437, and was “ineligible for resentencing under
section 1170.95, subdivisions (a) and (b).” (Cortes, at p. 205; see
8
Rivera, at pp. 236–237; People v. Soto (2020) 51 Cal.App.5th
1043, 1055.)4
Because Perez is ineligible for section 1170.95 relief as a
matter of law, there is no reasonable probability that, had
counsel been appointed, the result would have been more
favorable to him. (See People v. Mancilla, supra, 67 Cal.App.5th
at p. 864.)
4
Perez argues that “some of the attempted murder counts
might have been based on an erroneous . . . ‘kill zone’
instruction.” This contention is not cognizable at this juncture.
Senate Bills 1437 and 775, and section 1170.95, do not provide
relief for purported trial errors other than those related to the
use of the felony-murder, natural and probable consequences, or
other imputed malice theory. (See People v. Farfan (2021) 71
Cal.App.5th 942, 947 [“The mere filing of a section 1170.95
petition does not afford the petitioner a new opportunity to raise
claims of trial error”].)
9
DISPOSITION
The order denying Perez’s petition for resentencing
pursuant to section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
10