People v. Perez CA4/2

Filed 10/27/21 P. v. Perez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E076051

v. (Super.Ct.No. SCR41000)

RICHARD DAVID PEREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,

Judge. Affirmed.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Kathryn

Kirschbaum, and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.

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 In 1983, a jury convicted Richard David Perez of multiple violent crimes,

including murder, for his participation in a spree of home invasions featuring a rotating

cast of codefendants. In 2019, he filed a petition for resentencing under the then newly

enacted Penal Code section 1170.95, unlabeled statutory references refer to this code.

The court filed an order to show cause and held an evidentiary hearing, after which it

denied the petition.

On appeal, Perez argues there was insufficient evidence to support the conclusion

he was a major participant in the underlying felony who acted with reckless indifference

to human life. We affirm.

I. FACTS

Over a four-month period, Phillip Walz led a group of four other men, including

Perez, on a crime spree targeting 12 different homes and businesses for robbery and other

crimes. Walz and his group terrorized whomever they found at each place and, among

other things, perpetrated sex offenses upon two victims and shot three others, fatally

wounding one. The jury found Perez was with Walz when the last victim was murdered,

and he was present during two earlier incidents.1

A. The April 22, 1983 Incident

On April 22, 1983, Perez and another man entered Christiaan I.’s home while he,

his wife, two sons, two of his brothers, and his sister-in-law were having dinner. Perez

1 The facts are taken from this court’s prior nonpublished opinion in defendant’s
prior appeal, case No. E01582, which is part of the record on appeal in this case. (People
v. Perez (Sept. 5, 1986, E001582) [nonpub. opn.].)

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was armed with a shotgun. The other man was armed with a handgun, was more violent,

and did most of the talking. One of the witnesses later identified him as Walz.

Walz threatened to kill members of the family and struck Christiaan’s brother

Eugene twice in the face with a handgun, breaking his nose. Walz then separated

Christiaan from the rest of his family, handcuffed him, and put a gun to his head. Perez

and Walz stole personal belongings, including jewelry, from the family members. When

Christiaan’s wife had trouble getting her wedding ring off, Walz threatened to cut off her

finger. Walz became more violent throughout the robbery. While Walz did most of the

talking, Perez covered the family with his shotgun.

Christiaan told Walz they were expecting company, and that he and Perez could

leave because they had all the family’s valuables. Walz said if more people were coming

that was even better. He and Perez waited for the other guests to arrive. The guests,

Ronnie and his son Baudy, eventually came to the front door, but Ronnie became

suspicious and told his son to run. As Baudy attempted to run, one of the two men hit him

over the head, causing him to collapse. Christiaan didn’t see who hit Baudy, but he and

another witness both heard Perez say, “I think he’s dead,” and tell Walz they should

leave.

B. The April 24, 1983 Incident

On April 24, 1983, Perez and another man entered the home of Kenneth and

Gretchen G. while they were watching television. Kenneth later identified the other man

as Quillen. According to Kenneth, Quillen was loud and aggressive and did most of the

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talking. Quillen held a gun to Kenneth’s head and a knife to his throat and threatened to

kill him. The men told Kenneth to lie down on the floor face-first, and when he did so

they hog-tied him using objects from the home. Both men threatened Kenneth with death

multiple times and would kick him if he responded to a question in a way they didn’t like.

They stole jewelry and cash. At one point, Quillen put his gun to Kenneth’s head and said

he would shoot if Kenneth didn’t say where his Versatel card was by the count of five.

Quillen began counting, and Kenneth heard the gun’s chamber rotating, but Quillen

ultimately didn’t fire. At another point, Quillen threw his gun down next to Kenneth and

said he would kill him before he could reach the gun because Quillen was young and

strong and Kenneth was an old man.

Quillen took Gretchen to the bedroom, and after finding a couple additional small

items of value punched her in the face for holding out. Later, he took her to another

bedroom, pointed his gun at her, told her to take off her pants, and ordered her to perform

oral sex on him or else she would have to have sex with him. He said if she didn’t do as

he said they would kill her and her husband. He then raped Gretchen. After Quillen tied

her hands behind her back, Perez also raped her at gunpoint. Both men threatened to

shoot her if she didn’t stop crying while Perez raped her.

C. The April 29, 1983 Incident

On April 29, 1983, Michael and Georgia H. returned home with their 10-month-

old grandson around 10:30 at night. After bringing their grandson inside, Georgia told

Michael to go back out to the garage to get the diaper bag. After Michael left, Georgia

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heard a lot of noise in the garage and then a scream. Immediately after hearing the noises

Perez entered the house, approached Georgia, put a gun to her head and ordered her into

the bedroom. Georgia then heard two gunshots in the garage. Perez ran into the garage,

and Georgia barricaded herself and her grandson in a bedroom.

Michael died from the gunshot wounds. He suffered two gunshot wounds, one to

the head and one to the chest. Both wounds would have been fatal, though the gunshot

wound to the head would’ve killed him much more quickly.

Later that evening, Perez and Walz went to Jeffrey O.’s apartment. Perez told him

he saw Walz and Michael struggling, but assumed Walz could handle it and ran into the

house instead. Walz told Jeffrey O. that Michael pulled his mask off during the struggle.

Michael said he’d seen Walz’s face, so Walz shot him twice. Walz believed he missed

the first shot but knew the second one hit Michael’s head.

D. Arrest, Statements to Police, and Testimony

Police questioned Perez in early May 1983. They recorded the interview, and the

People played this recording for the jury.

After initially denying any involvement, Perez eventually admitted that he, Walz,

and another man were involved. He said Walz and another man picked him up, and they

drove by Michael’s house and saw he and his wife were home. They pulled back around

to the house, and when they got nearby Walz handed Perez a gun and a mask. He and

Walz left the car, with Walz going to the garage and Perez going to the house. Before he

entered the house, Perez saw Walz and Michael struggling over the gun. He also said he

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left the house to go to the garage after he heard a single gunshot. He asked Walz, “What

the fuck are you doing?” and “ ‘What did you do?’ ” He also told the police he “shot one

off at, Damn, you stupid motherfuckers.” He said he saw Walz point the gun at Michael

and yelled “ ‘No’ ” before Walz fired a second shot. He took off running before he even

saw Michael fall.

E. Procedural History

“[On September 5, 1984], [a] jury convicted [] Perez of first degree murder . . . ,

conspiracy to rob and burgle . . . , eight counts of robbery of an inhabited dwelling . . . ,

three counts of residential burglary . . . , and one count each of attempted robbery of an

inhabited dwelling . . . , rape in concert . . . and receiving stolen property. The jury further

found gun use allegations . . . as to all crimes except the conspiracy and receiving stolen

property.”

The judge sentenced Perez to a determinate term of 32 years eight months and a

consecutive indeterminate term of 25 years to life. Perez appealed, and on appeal this

court reversed one of his burglary convictions and stayed concurrent sentences for two

others.

On February 19, 2019, Perez filed a petition for resentencing under

section 1170.95. The trial judge determined the petition made a prima facie case and

ordered an evidentiary hearing on the merits. The judge held the hearing on October 2,

2020, and denied the petition. In doing so it found “beyond a reasonable doubt that []

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Perez was a major participant in this crime . . . who acted with reckless indifference to

human life.”

Perez appealed.

II. ANALYSIS

Perez argues he is entitled to relief under section 1170.95 because he was not the

actual killer and there was insufficient evidence he was a major participant in the

underlying felony and that he acted with reckless indifference to human life.

Senate Bill No. 1437, which became effective on January 1, 2019, “addresses

certain aspects of California law regarding felony murder and the natural and probable

consequences doctrine by amending Penal Code sections 188 and 189.” (People v.

Martinez (2019) 31 Cal.App.5th 719, 722.) Under section 189 as amended, “a participant

in enumerated crimes is liable under the felony-murder doctrine only if he or she was the

actual killer; or, with the intent to kill, aided and abetted the actual killer in commission

of first degree murder; or was a major participant in the underlying felony and acted with

reckless indifference to human life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749,

review granted Nov. 26, 2019, S258234.)

In order to seek resentencing under section 1170.95, a petitioner must first file a

petition meeting certain standards and alleging they are eligible for relief. (§ 1170.95,

subds. (a), (c).) If the petitioner would be entitled to relief were his factual allegations

true, the judge must then issue an order to show cause. (People v. Lewis (2021) 11

Cal.5th 952, 971.) Once the judge has issued an order to show cause, they must hold “a

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hearing to determine whether to vacate the murder conviction and to recall the sentence

and resentence the petitioner.” (§ 1170.95, subd. (d)(1).) “At the hearing to determine

whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution

to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.”

(§ 1170.95, subd. (d)(3).)

The People point out that there is a split in authority regarding how the reasonable

doubt standard should be applied—that is, whether the People must prove that a jury

could find a petitioner guilty under the new law or whether they must prove actual guilt.

(See, e.g., People v. Duke (2020) 55 Cal.App.5th 113, review granted Jan. 13, 2021,

S265309; cf. People v. Clements (2021) 60 Cal.App.5th 597, review granted Apr. 28,

2021, S267624.) However, this court has previously held that “the People ha[ve] the

burden to prove the record of conviction and any new or additional evidence the parties

submit establish beyond a reasonable doubt that [the petitioner] committed murder under

the amended law.” (People v. Clements, at p. 614.) Though that decision is currently

under review, we see no reason to depart from our reasoning in that case.

When reviewing a sufficiency of the evidence claim, we must determine

“ ‘ “whether, on the entire record, a rational trier of fact could find the defendant guilty

beyond a reasonable doubt.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739; People

v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is “evidence which is

reasonable, credible, and of solid value.” (People v. Johnson, at p. 578.) We view the

evidence in a light most favorable to the judgment and “resolve all evidentiary conflicts

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and questions of credibility ‘in favor of the verdict.’ ” (People v. Brady (2018) 22

Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-

227.) We may not reverse the judgment “unless it appears ‘that upon no hypothesis

whatever is there sufficient substantial evidence to support [the conviction].’ ” (People v.

Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745,

755.)

A. The Tison-Enmund Spectrum

The language amended section 189 uses to identify who is still liable for felony

murder now—someone who was “a major participant in the underlying felony and acted

with reckless indifference to human life”—comes out of two United States Supreme

Court cases that considered when the death penalty could be used against people

convicted of murder who were not the actual killers. These two cases are Enmund v.

Florida (1982) 458 U.S. 782 (Enmund) and Tison v. Arizona (1987) 481 U.S. 137

(Tison). Both involved defendants who were not the actual killers but who participated in

an underlying felony during which one of their codefendants killed. In both cases the

defendants were sentenced to death, and the court was asked to determine whether the

death penalty could apply to those only vicariously liable for a killing.

Our Supreme Court adopted this standard to assess culpability in two cases,

People v. Banks (2015) 61 Cal.4th 788, 794 (Banks) and People v. Clark (2016) 63

Cal.4th 522 (Clark). Thus, assessing whether a defendant was a major participant who

acted with reckless indifference to human life requires us to consider both the United

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States Supreme Court’s explanation of this standard and our own Supreme Court’s

clarification.

In Enmund the defendant “drove two armed confederates to [Thomas] Kersey’s

house and waited nearby while they entered. When Kersey’s wife appeared with a gun,

the confederates shot and killed both Kerseys. Enmund thereafter drove his confederates

away from the scene and helped dispose of the murder weapons.” (Banks, supra, 61

Cal.4th at p. 799.) The United States Supreme Court reversed Enmund’s death sentence

and “held the Eighth Amendment bars the death penalty for any felony-murder aider and

abettor ‘who does not himself kill, attempt to kill, or intend that a killing take place or

that lethal force will be employed.’ ” (Ibid.)

In contrast, in Tison, “Prisoner Gary Tison’s sons Ricky, Raymond, and Donald

Tison conducted an armed breakout of Gary and his cellmate from prison, holding guards

and visitors at gunpoint. During the subsequent escape, their car, already down to its

spare tire, suffered another flat, so the five men agreed to flag down a passing motorist in

order to steal a replacement car. Raymond waved down a family of four; the others then

emerged from hiding and captured the family at gunpoint. Raymond and Donald drove

the family into the desert in the Tisons’ original car with the others following. . . . Gary

and his cellmate then killed all four family members.” (Banks, supra, 61 Cal.4th at

p. 799.) In that case the United States Supreme Court laid out a spectrum of culpability,

with minor actors like Enmund on one side and actual, intentional, or attempted killers on

the other. (Tison, supra, 481 U.S. at pp. 149-150.) Between those two extremes, “major

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participation in the felony committed, combined with reckless indifference to human life,

is sufficient to satisfy the Enmund culpability requirement” in order to apply the death

penalty. (Id. at p. 158.) The court concluded that the Tisons met this standard, and

therefore the constitution did not prohibit sentencing them to death.

Thus, Tison and Enmund establish two points along a spectrum of culpability. On

one end is Enmund, the quintessential getaway driver, who could not be put to death over

his involvement in the felony which resulted in two deaths. Somewhere further along are

the Tisons, who the court concluded could be put to death because they were major

participants in the underlying felony who acted with reckless indifference to human life.

In Banks and Clark, our Supreme Court considered this spectrum in the context of

California’s death penalty. In doing so, it clarified what constituted “major participation”

and “reckless indifference to human life” under California law for these purposes. Thus,

though Banks and Clark predate the enactment of Senate Bill No. 1437 and

section 1170.95, they are the leading cases in defining the elements necessary to find that

a given defendant is still liable for murder under the now much restricted qualifications.

B. Major Participation

In Banks, supra, 61 Cal.4th at p. 794, our Supreme Court considered “under what

circumstances an accomplice who lacks the intent to kill may qualify as a major

participant.” The court counseled that “ ‘major participation’ should be understood as the

phrase is used in common parlance, as including those whose involvement is ‘ “notable

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or conspicuous in effect or scope” ’ and who are ‘ “one of the larger or more important

members . . . of a . . . group.” ’ ” (Id. at p. 800.)

Our Supreme Court concluded that “Tison and Enmund establish that a

defendant’s personal involvement must be substantial, greater than the actions of an

ordinary aider and abettor to an ordinary felony murder such as Earl Enmund.” (Banks,

supra, 61 Cal.4th at p. 802.) The court set out a number of factors relevant to assessing

whether a given defendant met these criterion, namely: “What role did the defendant have

in planning the criminal enterprise that led to one or more deaths? What role did the

defendant have in supplying or using lethal weapons? What awareness did the defendant

have of particular dangers posed by the nature of the crime, weapons used, or past

experience or conduct of the other participants? Was the defendant present at the scene of

the killing, in a position to facilitate or prevent the actual murder, and did his or her own

actions or inaction play a particular role in the death? What did the defendant do after

lethal force was used? No one of these considerations is necessary, nor is any one of them

necessarily sufficient. All may be weighed in determining the ultimate question, whether

the defendant’s participation ‘in criminal activities known to carry a grave risk of death’

[citation] was sufficiently significant to be considered ‘major.’ ” (Id. at p. 803.)

Given this standard, and viewing the evidence in the light most favorable to the

judgment, we are inclined to agree with the trial judge that “there can’t be any significant

argument that [Perez] wasn’t a major participant.” Perez participated in multiple home

invasion burglaries prior to the killing, including at least one with the actual killer Walz.

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In all of these the men were armed, they attacked the victims, and they used the threat of

death to subdue their victims. Perez and an accomplice also raped one of their prior

victims, both threatening to kill her if she didn’t comply. Most importantly, Perez was

involved in a prior incident in which he believed they might have killed one of their

victims, and still went out with Walz after that. Given this, Perez unquestionably had

“awareness . . . of particular dangers posed by the nature of the crime, weapons used, or

past experience or conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803.)

With regard to planning, the evidence suggests that the planning for these crimes

was minimal, as the men simply drove around until one or more identified a home they

wanted to attack. However, this lack of planning increases Perez’s culpability, since his

participation in what little planning there was is necessarily amplified. Thus, though

Perez was the subordinate in all of these crimes, he nevertheless seems to have actively

participated in what planning actually occurred by going out with the others with the

intention of burglarizing some home.

Finally, Perez’s actions after the fact also weigh against him. After Walz killed

Michael, Perez made no effort to render aid or come clean. Indeed, Perez left before

Michael hit the ground, before he could even confirm Michael’s state.

Nevertheless, Perez points to the Banks factors that do not fit his conduct to argue

he was not a major participant. In particular, Perez argues the evidence shows he didn’t

supply the weapons and didn’t cause nor was he in a position to stop the killing. Perez

also argues that his awareness of the dangers of the crimes was minimal, since his

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previous participation in crimes which didn’t result in death may have lulled him into a

belief that death was not a serious threat. Finally, he claims the evidence is unclear

whether either of the prior two incidents involved Walz—only one victim identified Walz

in connection with the first incident and nobody identified Walz in connection with the

second. Therefore, Perez argues, he was not sufficiently aware of the particular danger

Walz posed.

But this misses the forest for the trees. As Banks itself acknowledges, not every

factor needs to be present. The overriding question, which the Banks factors help answer,

is whether “a defendant’s personal involvement” was “substantial, greater than the

actions of an ordinary aider and abettor to an ordinary felony murder,” with the actions of

the Tisons and Enmund as points on a spectrum. (Banks, supra, 61 Cal.4th at p. 802.)

Perez’s actions undoubtedly fall closer to those of the Tisons than Enmund. Perez’s

active, willing, intentional participation in an armed residential burglary, knowing at least

two people were in the home, and his actual use of the threat of death against at least one

of the residents, makes him much more culpable than a simple getaway driver.

Moreover, his claims regarding his insufficient awareness of Walz’s previous

violence are unsupported by the evidence. While it’s true only one victim identified Walz

in connection with the first burglary, that is sufficient for the trial judge to have

concluded Walz was involved. During this incident, either Walz or Perez hit one of their

victims hard enough that Perez thought they’d killed him. Walz also became increasingly

violent throughout the burglary, openly welcomed the arrival of more victims, and both

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he and Perez lay in wait for those victims’ arrival. The evidence was thus sufficient for

the trial court to conclude Perez was apprised “of particular dangers posed by. . . past

experience or conduct of the other participants.” (Banks, supra, 61 Cal.4th at p. 803.)

C. Reckless Indifference to Human Life

Turning to the second portion of the Tison-Enmund standard—that a felony

murderer must have acted “with reckless indifference to human life”—our Supreme

Court clarified the level of mental culpability required in Clark. In that case our Supreme

Court summarized the United States Supreme Court’s standard as “encompass[ing] a

willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the

defendant does not specifically desire that death as the outcome of his actions.” (Clark,

supra, 63 Cal.4th at p. 617.) The court cited the Model Penal Code’s definition of

recklessness approvingly, which requires a person “ ‘consciously disregard[] a substantial

and unjustifiable risk that the material element exists or will result from his conduct. The

risk must be of such a nature and degree that, considering the nature and purpose of the

actor’s conduct and the circumstances known to him, its disregard involves a gross

deviation from the standard of conduct that a law-abiding person would observe in the

actor’s situation.’ ” (Ibid.) “This definition encompasses both subjective and objective

elements. The subjective element is the defendant’s conscious disregard of risks known

to him or her. But recklessness is not determined merely by reference to a defendant’s

subjective feeling that he or she is engaging in risky activities. Rather, recklessness is

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also determined by an objective standard, namely what ‘a law-abiding person would

observe in the actor’s situation.’ ” (Ibid.)

In order to aid courts and juries considering whether a defendant acted with

reckless indifference to human life, the court offered another list of nonexclusive factors,

much like it did in Banks. These factors are (1) the defendant’s “[k]nowledge of

[w]eapons, and [u]se and [n]umber of [w]eapons;” (2) their physical presence at the

crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the

felony; (4) the defendant’s knowledge of the likelihood his cohorts will kill; and (5) their

efforts to minimize the risks of violence during the felony. (Clark, supra, 63 Cal.4th at

pp. 618-621.) The court made clear that as with the Banks factors that “ ‘[n]o one of these

considerations is necessary, nor is any one of them necessarily sufficient.’ ” (Id. at

p. 618.) Our colleagues in the First District have also recently held that “a defendant’s

youth is a relevant factor in determining whether the defendant acted with reckless

indifference to human life. Indeed, the ‘hallmark features’ of youth—‘among them,

immaturity, impetuosity, and failure to appreciate risks and consequences’—are arguably

more germane to a juvenile’s mental state than to his or her conduct.” (In re Moore

(2021) 68 Cal.App.5th 434, 454 (Moore).)

Given these factors, we conclude substantial evidence exists to support the trial

judge’s conclusion that Perez acted with reckless indifference to human life. Perez knew

that both he and his accomplice were armed with guns, saw Walz use his gun to threaten

Michael, and used his own gun to threaten Georgia. Though Perez wasn’t physically

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present when Walz shot Michael, Perez saw Walz fighting with Michael and didn’t try to

help the victim or restrain his partner. Indeed, Perez made no effort whatsoever to

minimize the risks of violence—in fact, the entire plan seems to have hinged on

maximizing violence in order to overwhelm the already surprised victims and compel

compliance. Walz intentionally picked a home invasion target where he knew people

were home, and Perez willingly went along with this plan. The evidence is not only

sufficient to conclude Perez made no effort to restrain the violence of the crime—it is

sufficient to conclude that violence was the point.

Perez argues that certain of the factors suggest finding he didn’t act with reckless

indifference. He argues he didn’t have knowledge of Walz’s violent tendencies. He points

out that he wasn’t present when Walz shot Michael the first time—which would have

been a fatal shot on its own—and may have implored Walz not to fire a second time.

Finally, he argues his age must be taken into account in weighing each of these factors.

We have already addressed many of Perez’s arguments regarding his knowledge

of Walz’s violent tendencies above. Suffice it to say, the evidence was sufficient for the

court to conclude Walz and Perez worked together during the April 22, 1983 incident to

terrorize a family and their friends, and that Perez had more than enough advance notice

that Walz was willing, even eager, to use violence—whether necessary or not.

As for Perez not being physically able to stop the killing, we agree that Perez’s

absence during the actual killing, and his apparent objection to the killing, are minimally

mitigating factors. While Perez is culpable for failing to intervene and stop the fight

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between Michael and Walz which ultimately led to Michael’s death, the evidence is

otherwise clear that he was inside the house when Walz first fatally shot Michael.

However, we disagree that this sole mitigating factor means there was insufficient

evidence to conclude Perez acted with reckless indifference. As we’ve described above,

even assuming Perez didn’t intend the killing and either attempted to stop Walz or

chastised Walz after the fact, this doesn’t change the fact there is ample evidence Perez

otherwise consciously disregarded a substantial and unjustifiable risk of death, and that

his conduct involved “a gross deviation from the standard of conduct that a law-abiding

person would observe in the actor’s situation.” (Clark, supra, 63 Cal.4th at p. 617.)

We also disagree that Perez’s age sufficiently reduces his culpability. Perez was

20 years old at the time of the crimes. This is young enough that the law recognizes this

may reduce culpability in some circumstances. (See, e.g. § 3051, subds. (a)(1), (b)

[allowing youth offender parole hearings for those under 25 “at the time of the

controlling offense”].) We also agree with our colleagues in the First District that a judge

should take young age into account when determining a defendant’s mental culpability.

(See Moore, supra, 68 Cal.App.5th at p. 454.)

However, this case is distinguishable from cases finding age was an important

factor because though Perez was young, he was still an adult. For instance, Moore

concerned a defendant who was only 16 when he and his accomplice spontaneously

decided to rob three people in a parking lot, and his accomplice shot one of the victims

unprovoked. (Moore, supra, 68 Cal.App.5th at p. 453.) In People v. Harris (2021) 60

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Cal.App.5th 939, 944, the defendant was 17 when he participated in a firebombing that

killed two children. Both of these cases involved minors who were at least three years

younger than Perez at the time of their crimes.

Moreover, the evidence is sufficient to conclude Perez had enough mental

culpability even taking into account his young age. Perez acted independently of Walz to

threaten one of the victims; there is no evidence he was under duress or was otherwise

being manipulated by Walz due to his age. The violence was not wholly unexpected, nor

entirely spontaneous, and the evidence is sufficient to show that Perez participated with

an understanding that violence and the threat of serious harm was an integral part of the

criminal enterprise. This was not a spur of the moment robbery that ended in an

impetuous, unprovoked, apparently thoughtless killing as in Moore. This was an armed

home invasion which Perez and Walz embarked on with full knowledge that the residents

were home and with every intention of violently subduing them. Perez didn’t need

“ ‘ “experience, perspective, and judgment” ’ to adequately appreciate the risk of death

posed by his criminal activities.” (Moore, supra, 68 Cal.App.5th at p. 454.)

Accordingly, we conclude there was sufficient evidence to support the trial judge’s

finding that Perez was a major participant in the underlying crime who acted with

reckless indifference to human life, and that he was therefore not entitled to resentencing

under section 1170.95.

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 III. DISPOSITION

We affirm.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH
J.
We concur:

McKINSTER
Acting P. J.

MENETREZ
J.

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