People v. Perez CA2/4

Filed 6/16/23 P. v. Perez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B324434
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA358075)
v.
ARTHUR PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Dismissed.
Richard B. Lennon and Cheryl Lutz, under appointment by the Court
of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Arthur Perez appeals the order of the trial court denying his petition
for resentencing under Penal Code 1 section 1172.6 (former section 1170.95).2
We dismiss the appeal as abandoned.
BACKGROUND
In June 2009, Richard Rios got into an argument with a man who was
smoking marijuana in his apartment complex. During the confrontation, the
man shot Rios. Police detained several men in a nearby building, including
Perez. Rios and another witness later identified Perez as the shooter.
In April 2011, a jury convicted Perez of attempted premeditated willful
and deliberate murder (§§ 664/187, subd. (a)). The jury found true
allegations that in the commission of the offense he personally inflicted great
bodily injury (§ 12022.7, subd. (a)) and that he had personally used a firearm
(§ 12022.53, subds. (b)-(d)). The trial court imposed a sentence of life
imprisonment for the attempted murder conviction and an additional
sentence of 25 years to life for an enhancement of personal gun use resulting
in great bodily injury (§ 12022.53, subd. (d)).3
On appeal, this court affirmed the judgment. (People v. Perez (Jan. 29,
2013, B233296) [nonpub. opn.].)
On March 22, 2022, Perez filed, in pro. per., a petition for resentencing
pursuant to section 1172.6. Among other allegations, Perez alleged that he
1 All statutory references are to the Penal Code unless otherwise stated.
2 Effective June 30, 2022, section 1170.95 was renumbered section
1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of
reference, we will refer to the section by its new numbering only.
3 The court imposed and stayed punishment on the remaining
enhancements.
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“could not presently be convicted of . . . attempted murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.” Perez
requested appointed counsel.
The trial court appointed counsel. The People filed a response and
counsel for Perez filed a reply. On August 2, 2022, the court denied the
petition, finding that Perez failed to make a prima facie case for relief. The
court reasoned that the jury had found Perez was the actual shooter. The
jury was also not instructed on the felony murder rule or the natural and
probable consequences doctrine.
Defendant timely filed a notice of appeal.
DISCUSSION
We appointed counsel to represent Perez on appeal. After examination
of the record, his attorney filed an opening brief raising no issues and asking
this court to independently review the record. Our Supreme Court has
established a procedural framework to follow when appointed counsel finds
no arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 221–222
(Delgadillo).) Under that framework, we gave notice to Perez that he had the
right to file a supplemental letter or brief, or his appeal could be dismissed.
If the defendant responds to the notice, the court is required to
evaluate the arguments raised in the supplemental brief or letter and must
issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) If the
defendant does not respond to the court’s notice, then the court may exercise
its discretion to dismiss the appeal as abandoned. (Ibid.) If it chooses to
dismiss, it may do so with or without a written opinion. (Ibid.)
Perez was notified of the court’s policy and did not file a supplemental
letter or brief.
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In accordance with the procedures articulated above, we dismiss the
appeal as abandoned. And even if we were to look at the merits, the trial
court’s order is indisputably correct because Perez is statutorily ineligible for
relief. Under the ordinary principles governing statutory interpretation, a
petitioner is eligible for relief under section 1172.6 if he could not be
convicted at present because of changes to the law made by Senate Bill No.
1437 (2017-2018 Reg. Sess.). (People v. Lewis (2021) 11 Cal.5th 952, 959.)
Here, the jury found Perez was the actual shooter.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, J.*
We concur:
CURREY, Acting P. J.
COLLINS, J.
* Judgeof the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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