People v. Perkins CA5

Filed 3/28/22 P. v. Perkins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F081279
Plaintiff and Respondent,
(Kern Super. Ct. No. BF118151A)
v.

WAYNE DESHOWN PERKINS, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth
Twisselman II, Judge.
Jerome P. Wallingford, under appointment by the Court of Appeal, for Defendant
and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-

* Before Hill, P. J., Poochigian, J. and De Santos, J.
 INTRODUCTION
In 2010, Wayne Deshown Perkins (Perkins) and Anthony Jones (Jones) were
convicted after a joint jury trial of the first degree premeditated murder of Deondre
McGruder (Pen. Code, § 187, subd. (a), § 189),1 with a gang special circumstance
(§ 190.2, subd. (a)(22)). Perkins was sentenced to life in prison without the possibility of
parole.
In 2020, Perkins filed a petition for resentencing pursuant to section 1170.95, and
alleged he was entitled to relief because he was not the actual killer, and his murder
conviction was based on the felony-murder rule and/or the natural and probable
consequences doctrine. The superior court denied the petition.
On appeal, Perkins’s appellate counsel has filed a brief which summarizes the
facts with citations to the record, raises no issues, and asks this court to independently
review the record. (People v. Wende (1979) 25 Cal.3d 436.) Perkins has filed a letter
brief raising sentencing issues. We affirm.
FACTS2
The Shooting
Around 9:15 p.m. on February 13, 2007, gunshots were heard by residents of a
house on Snapdragon Lane in Bakersfield. The residents described hearing two sets of
gunshots, comprised of one or two gunshots followed by a brief pause and then a number
of gunshots in quick succession.

1 All further statutory citations are to the Penal Code unless otherwise indicated.
2 The People filed this court’s opinion from the joint appeal of Perkins and Jones
as an exhibit in support of its opposition to Perkins’s section 1170.95 petition. The
superior court relied on this court’s opinion to deny Perkins’s petition, and Perkins has
cited to the opinion for the factual and procedural background in his appellate brief.
Given this background, we take judicial notice of the appellate record and this
court’s nonpublished opinion in People v. Perkins, May 18, 2012, F060071, for the
factual and procedural background for Perkins’s conviction and sentence. (Evid. Code,
§ 450, § 452, subd. (d), § 459; In re W.R. (2018) 22 Cal.App.5th 284, 286–287, fn. 2.)

2.
 When the residents looked through their kitchen window, they saw the victim,
later identified as Deondre McGruder, lying in the front yard. McGruder, who sustained
multiple gunshot wounds, died from massive bleeding caused by a gunshot wound to the
chest.
A criminalist examined eight spent cartridge casings found at the scene and
expressed the opinion that all eight were fired from the same firearm. The firearm was a
.40-caliber Glock semiautomatic pistol, either the Glock Model 22 or the Glock Model
23.3 Police investigators also recovered one live round from the scene, but it was of a
different caliber than that of the eight spent cartridge casings. Investigators found a piece
of copper jacketing and a copper jacketed projectile at the scene, and another projectile
was collected from the autopsy.
Torino Jackson (Accomplice Testimony)
Torino Jackson attributed the shooting to Perkins and Jones. Jackson testified that
sometime during the afternoon on February 13, 2007, Perkins came to his house. Jones
joined them later, and they all hung out together on Jackson’s front porch.
After it got dark, Jackson’s friend, Nyesha Hendrix, came to the house and drove
Jackson, Perkins, and Jones back to her apartment. Eventually, the three men left the
apartment and got into Hendrix’s red, two-door Ford Escort and started driving around.
Perkins was the driver, Jones sat in the front passenger’s seat, and Jackson sat in the
backseat. While they were driving around, Jackson was busy texting on his cell phone.
Perkins eventually stopped the car on a residential street and got out with Jones,
while Jackson stayed in the car. Jackson saw them walk towards a house close to where
they parked. A few minutes later, they returned to the car, and they started driving again.
Soon after they started driving again, Jackson saw McGruder walking down the
street. McGruder appeared to be talking to someone in another car. Jackson testified

3 The murder weapon was never found.

3.
that, as they drove by McGruder, Perkins asked him, “ ‘Watts up?’ ” McGruder replied,
“ ‘All day, every day.’ ” In a prior police interview, Jackson said McGruder addressed
them first, asking, “ ‘Watts up?’ ” Perkins responded by asking the same question.
McGruder then said, “ ‘All day, every day’ ” and yelled, “ ‘South’ ” as their car passed
by him.
Jackson testified that after this verbal exchange with McGruder, Perkins drove into
a cul-de-sac and turned around. Perkins then stopped the car near where McGruder was
walking and turned off the engine and lights on the car. Perkins and Jones both got out of
the car, while Jackson remained in the back seat. Jones donned a ski mask, pulling it
down so it covered his whole face.
Jackson saw Perkins and Jones start walking towards McGruder. He was not
paying close attention, however, because he was still on his phone. Suddenly, Jackson
heard gunshots and ducked down. He then peeked out and saw Perkins pointing a gun at
McGruder. Jackson heard two sets of gunshots that night.
When the gunshots ended, Perkins and Jones returned to the car. As they were
driving away, Jackson observed a silver gun on Jones’s lap. On direct examination,
Jackson testified that there was no conversation during the drive back to Hendrix’s
apartment, which took five to seven minutes. However, on cross-examination, Jackson
testified that he remembered Jones saying that his gun had jammed.
Jackson acknowledged that he knew a person named James Beale, who had been
shot and killed in February 2007. Jackson claimed he could not recall appellants
discussing Beale on the drive back to Hendrix’s apartment. He only recalled that they
had discussed the subject earlier that day at his house, talking about how “messed up” it
was that someone had killed Beale. However, during a prior police interview, Jackson
said the shooting “probably was a retaliation,” and reported that, during the drive back to
Hendrix’s apartment after the shooting, Perkins and Jones were talking about what “a
cool person” Beale had been and how they had known him for a long time.

4.
 Jackson testified that when they got back to Hendrix’s apartment, Hendrix opened
the door and Perkins and Jones went inside. Jackson claimed he stayed outside and
called his sister. Eventually, two girls he knew from high school arrived at the apartment
complex and gave them a ride home.
Jackson testified that the morning after the shooting, Hendrix texted him and then
took him to breakfast at Denny’s. After breakfast, Hendrix returned Perkins’s gun to
Jackson. Jackson hid the gun inside his house until Perkins came and got it from him on
February 15, 2007.
Nyesha Hendrix
Hendrix testified that on February 13, 2007, she drove to Jackson’s house around
8:00 p.m. She then drove Jackson, Perkins, and Jones back to her apartment, so she
could get her wallet. When she was in her bedroom getting her wallet, Perkins came in
and asked her if he could borrow her car. Hendrix was reluctant at first because Perkins
had borrowed her car in the past and returned it late. She finally agreed to let him borrow
the car after he promised to return it by 9:40 p.m. After Hendrix gave Perkins the keys to
her car, he left the apartment together with Jones and Jackson. Hendrix did not know
where they were going.
Sometime after she had gone to bed, Hendrix got a call from Jackson, asking her
to open the front door to her apartment. Hendrix looked at her clock, which showed it
was 9:42 p.m. Hendrix got out of bed and opened the front door. Perkins, Jones, and
Jackson were standing there. According to Hendrix, all three men, including Jackson,
came into the apartment, and Hendrix went back into her bedroom.
After the three men came into Hendrix’s apartment, Jackson went back into the
bathroom in Hendrix’s bedroom, while Perkins and Jones stayed in the living room.
Perkins used Hendrix’s house phone to call Tasha Lelfore, whom Hendrix knew from
school.

5.
 When Jackson came out of the bathroom, he sat on the edge of Hendrix’s bed but
did not say anything about the shooting. Eventually, Jackson left, and Hendrix stayed in
her bedroom. When she was in her bedroom, one of the three men told her to come lock
the front door because they were leaving. Hendrix got up, locked the door, and then went
back to bed.
Hendrix woke up early the next morning and started cleaning her apartment.
While she was cleaning, she found a black gun and a ski mask under the couch. Hendrix
recalled that the gun had “Glock .40” printed on it. She had never seen a gun before in
her house.
Hendrix placed the gun and ski mask in a backpack. She then called Jackson and
asked him why there was a gun in her house. Jackson told her that Perkins had left it
there.
After putting the backpack in her car, Hendrix drove to Jackson’s house. Jackson
came outside, took the gun and ski mask from Hendrix, and carried the items back into
his house, hiding the gun under his shirt. Jackson then returned to Hendrix’s car, and
they went to Denny’s.
Later that day, Hendrix took her car to her grandmother’s house, washed it, and
left it there with a tarp over it. 4
In the past, Hendrix had heard Perkins say he was from Grape Street, which she
took to mean “he was involved with the gang Grape Street.”
On cross-examination, Hendrix testified it was a total surprise to her to find the
gun under the couch. She did not recall any of the three men saying anything about
leaving a gun when they left her apartment. However, in a prior police interview,

4
A crime lab technician later processed the interior and exterior of Hendrix’s car
and lifted five usable prints which matched Jackson’s fingerprints. All five prints were
located on the exterior of the car’s passenger side door and window. The crime lab
technician found no usable prints matching either Perkins’s or Jones’s fingerprints.

6.
Hendrix reported that, as Perkins was leaving her apartment, he asked her to take his gun
to his uncle’s house. Hendrix told police she did not think anything of it at the time
because she was half asleep. But the next morning when she was picking things up, she
saw something black sticking up from under the couch, grabbed it, and realized it was the
gun Perkins had mentioned.
Hendrix also testified on cross-examination that, when she went to Denny’s with
Jackson the day after the shooting, Jackson told her that Jones “shot the guy twice and the
gun jammed.” Jackson also said something to the effect that McGruder got what he
deserved because he killed Beale. Hendrix specifically recalled Jackson saying, “ ‘That’s
what he get because he shouldn’t have killed James like that.’ ”
Tasha and Tasia Lelfore (Witnesses of Events After Shooting)
Sisters Tasha and Tasia Lelfore confirmed that on the evening of February 13,
2007, Perkins called to ask for a ride, and that they drove to apartments near the Wilson
library and saw Jackson, Perkins, and Jones standing outside. Because there was not
enough room in the car for all three men, Tasia dropped Tasha off and then returned to
give Jackson and appellants a ride home. At trial, Tasia estimated that she started
dropping the three men off at home around 9:00 p.m. However, she previously told a
police detective it was closer to 10:00 p.m. when she started dropping them off.
Tasha testified that Perkins later called her at work and told her that she did not
pick him up on February 13. She got the impression that he was trying to get her to
testify that she picked him up on some other date. Tasha was certain that she and her
sister picked up Perkins and Jones at the apartments on February 13, 2007, because it was
her friend’s birthday, and they were having a party that night. When Perkins called
Tasha, he also asked for Tasia’s phone number, which Tasha gave to him.
A recording of the call Perkins made to Tasha, which Perkins placed from jail, was
played to the jury and admitted into evidence against Perkins only. The recording
reflects that Perkins also tried to call Tasia, but his call went to her voicemail.

7.
Travon Stewart, Leann Newman, and Paul Evans (Witnesses of Events Prior to
Shooting)
On the night of February 13, 2007, two witnesses, Travon Stewart and Leann
Newman, saw McGruder walking in a residential street near where the shooting occurred.
They also both saw a red car in the vicinity. Stewart later identified Hendrix’s red Ford
Escort to police as the car he saw that night.
Newman specifically testified that, although they were no longer together, she had
lived with McGruder for seven years and had a young child with him. Newman
explained that when she saw McGruder on the night of the shooting, she was on her way
to drop off their child at McGruder’s mother’s house to visit his father. Stewart was
driving the car Newman and the child were in when she saw McGruder.
When Newman first saw McGruder, he was walking in the direction of his
mother’s house. The street he was walking on was near Snapdragon Lane and the street
where a Foods Co. store was located. As they drove past McGruder, he looked at the car
and gestured towards Newman with his hands. They kept driving and dropped the child
off at McGruder’s mother’s house.
After dropping the child off, Newman saw McGruder again. He was still walking
towards his mother’s house and appeared to have just crossed back from talking to
someone in a red car.
Stewart testified that when they first drove past McGruder, he appeared to be
trying to flag down their car. Stewart kept driving and did not see McGruder again after
they dropped off the child. As they were driving away from the house, Stewart saw
Hendrix’s red Ford Escort parked by a curb. Stewart saw one person in the car, sitting in
the driver’s seat.
Paul Evans testified that in February 2007, he lived near the Foods Co. in the
neighborhood where the shooting occurred. Evans knew Perkins, Jones, and Jackson.
Evans described Jackson as a close family friend. Evans was also friends with Jones and

8.
considered himself to be a closer friend to Jones than to Jackson. Perkins, on the other
hand, was “[n]ot a close friend but associate.”
After the shooting, police officers came to Evans’s house and informed him that
Jones had been taken into custody on February 15, 2007. Evans told the police that Jones
had stopped by his house a couple of days before Jones was taken into custody. Jones
had stopped by twice, once in the afternoon and once in the evening.
Evans initially testified that when Jones came over to his house in the evening, it
was sometime between 7:00 p.m. and 7:30 p.m. However, he later acknowledged telling
police that Jones came over around 8:00 p.m. He also told police Jones could not have
come over around 9:00 p.m. or 9:30 p.m. because Evans had left his house around that
time.
In addition, Evans told police that, after Jones left his house that night, he too left
and came back later. When Evans came back to his house, he started ironing his clothes
for school. While he was ironing his clothes, a girl he knew called and told him that
somebody had just gotten shot and asked him if he was okay.
Evans further testified that he saw Jackson at a McDonald’s restaurant on
February 21, 2007, and that Jackson asked him if he knew anyone who wanted to buy a
Glock gun. Evans did not actually see the gun but could see the outline of a gun under
Jackson’s T-shirt. Jackson told Evans the gun “had a body on it.”
The first time Evans ever told anyone about his conversation with Jackson about
the gun was to a defense investigator in January 2010; Evans did not report the
conversation to police investigators who questioned him about the shooting in 2007. The
defense investigator, Victor Lostaunau, testified that Evans did not mention seeing the
outline of a gun under Jackson’s T-shirt but instead reported that he did not see the gun
Jackson told him about.

9.
Gang Evidence
The parties stipulated that the Eastside Crips is a criminal street gang in Kern
County, as the term “criminal street gang” is defined under section 186.22. Bakersfield
Police Officer Ursery testified as a gang expert and opined that Perkins and Jones were
active members of the Eastside Crips and that Jackson was an affiliate or associate of the
gang.
Officer Ursery further opined that McGruder was affiliated with the Country Boy
Crips, and testified that a longstanding rivalry existed between the East Side Crips and
the Country Boy Crips. Presented with a hypothetical shooting based on the facts of this
case, Ursery expressed the opinion “[t]hat it would, in fact, be in benefit of, at the
direction of, and in furtherance of that particular gang.”
Bakersfield Police Sergeant Jehle also testified as a gang expert and opined that
Evans was an active member of the Eastside Crips gang. Jehle was of the opinion that, if
an active member of the Eastside Crips criminal street gang testified in a case involving
two defendants that were alleged members of the same gang, the testimony would benefit
both the gang and the member that testified.
Evidence Against Perkins Only (Dissuading a Witness Charge)
Hendrix testified that she was arrested and charged with being an accessory to
murder. Following her arraignment, she was transported in the same elevator with
Perkins. She heard Perkins say she needed to be scared for her family and that “his boy
T” was coming after them. Hendrix knew he was referring to a person named Terry. The
elevator incident occurred shortly after Hendrix’s father had called the police to report
that someone was calling and making threats against Hendrix’s family. Hendrix
considered Perkins’s comments in the elevator to be a threat, and she felt scared.
Valentina Branda, another inmate who was in the elevator with Hendrix and
Perkins, testified Perkins leaned forward between Hendrix and Branda and said two

10.
times, “ ‘Don’t trip. The boys are coming.’ ” Hendrix started crying, which led Branda
to believe Hendrix was scared.
Branda further testified that she heard Perkins make the same comment (“ ‘[t]he
boys are coming’ ”) under his breath in the courtroom during the arraignment preceding
the elevator ride.
Perkins’s Defense
The defense presented evidence to show Jackson was the one who placed a
threatening phone call received by Hendrix’s father, Keith Hollins, on February 24, 2007.
Specifically, Hollins testified the phone rang around 11:00 p.m., and a male caller
asked, “[I]s Nyesha there[?]” Hollins asked who was speaking. The caller replied,
“Reno” (Jackson’s moniker). Hollins told him it was late, and that they did not get calls
that late. The caller replied that he knew she was there and that she “snitched” on his
“homie.” Hollins told the caller he did not know what he was referring to. The caller
replied, “ ‘[Y]eah, you know what’s going on,’ ” and “ ‘she owe me some money.’ ”
Hollins further testified: “[A]fter he said, yeah, she is there, he said, yeah, and we are
going to have to pull one. And I can hear voices in the background on the phone saying
yeah, yeah, something like that. Then he proceeded to tell me exactly where we lived.”
When Hollins asked the caller how he knew where he lived, the caller said to look out the
window. Hollins did not look outside. After hanging up the phone, Hollins directed his
family members to lie down on the floor and dialed 911.
Bakersfield Police Officer Drewry responded to Hollins’s residence 15 to 20
minutes later. Drewry testified that Hollins told him that Jackson, whose voice he
recognized, had called and requested to speak with Hendrix. When Hollins refused,
Jackson began to threaten Hollins, saying he was going to shoot Hendrix for speaking
with the police regarding their investigation and that he was going to kill all the family
members.

11.
 When speaking with Officer Drewry, Hollins referred to Jackson by his first name
(Torino) and said he knew Jackson and that Jackson had come to his residence on a
number of occasions with Hendrix. Hollins did not mention hearing other voices in the
background or Jackson saying anything about “homies” during the phone call.
Officer Drewry also spoke with Hendrix, who told him that she thought Jackson
was involved in the murder on Snapdragon Lane and believed that Jackson thought she
was speaking with police regarding their investigation of the murder. Hollins and
Hendrix both sounded like they were being truthful.
The defense also presented evidence that Hendrix initially reported to police that
Jackson borrowed her car on the night of the shooting. Bakersfield Police Detective
West testified he interviewed Hendrix on February 25, 2007. During the interview, she
said she picked up Jackson at his house and drove him back to her apartment. She also
said she loaned her car to Jackson. She said she gave him the keys, and he left driving
the car. Initially, she said Jackson borrowed her car around 9:20 p.m. (the reporting time
of the Snapdragon homicide was around 9:24 p.m.). However, in a later interview,
Hendrix said he actually borrowed her car around 9:00 p.m., and she had lied in her first
interview because she was scared.
Detective West also interviewed Jackson on February 25, 2007. Jackson initially
reported that Hendrix stopped by his house but claimed he did not leave with her and was
at his house the whole day. Later, Jackson admitted he went to Hendrix’s apartment and
said he went to get money for shoes. Jackson reported that when he went inside her
apartment, Perkins came out of the bedroom and then he and Perkins both left.
Jackson initially denied taking possession of a gun from Hendrix. Eventually, he
admitted he received a gun from Hendrix and put it under his couch.
Detective West also testified that the distance between Hendrix’s apartment
complex, which was located on Freemont Street off of Wilson and South H Streets, and
the address on Snapdragon Lane where the shooting occurred, was about a mile and a

12.
half, and was a three- to 15-minute drive, depending on traffic. There was a mixture of
residential and commercial areas between Hendrix’s residence and the Snapdragon Lane
location. The distance between Jackson’s residence on Monitor Street and the
Snapdragon Lane location was roughly two miles.
PROCEDURAL BACKGROUND
On March 15, 2010, after a joint jury trial, Perkins and Jones were convicted of
count 1, first degree premeditated murder of McGruder (§ 187, subd. (a), § 189), with the
special circumstance that the murder was intentional and committed while each defendant
was an active participant in a criminal street gang and to further the gang’s activities
(§ 190.2, subd. (a)(22)); and the jury also found the gang enhancement true (§ 186.22,
subd. (b)(1)).5
As to Perkins, the jury found true two firearm enhancements alleged as to count 1:
(1) Perkins personally and intentionally discharged a firearm causing death,
pursuant to section 12022.53, subdivision (d); and
(2) Perkins was a principal who committed the offense for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)), and that he or another principal personally and
intentionally discharged a firearm causing death, pursuant to section 12022.53,
subdivisions (d) and (e)(1).
The jury made the identical findings on the same two firearm enhancements
alleged as to count 1 for Jones.
Perkins was separately convicted of being felon in possession of a firearm and
willfully attempting to dissuade a witness with a gang enhancement. The court dismissed
the prior prison term enhancements alleged as to Perkins.

5Perkins and Jones were initially tried in 2008, but a mistrial was declared, and
they were retried together in 2010.

13.
Sentencing
On April 13, 2010, the court held the sentencing hearing and addressed the parties’
motions for new trial. The court stated that when the verdicts were returned, the parties
discussed whether it was inconsistent for the jury to find true the section 12022.53,
subdivision (d) enhancement as to both Perkins and Jones, that each defendant personally
discharged a firearm causing death. The court questioned whether substantial evidence
supported that enhancement for both defendants.
The court gave a tentative ruling that it would strike the “personal discharge”
enhancement as to both defendants based on inconsistent findings and insufficient
evidence “that each of them personally discharged a firearm” within the meaning of
section 12022.53, subdivision (d). The court stated that would “still leave” the second
enhancement under section 12022.53, subdivisions (d) and (e)(1), that each defendant
was a principal who committed the offense for the benefit a criminal street gang, and that
he or another principal personally and intentionally discharged a firearm causing death,
“and that finding does not require the defendant to have personally discharged a firearm.”
The prosecutor objected and argued there was substantial evidence that Perkins
fired the gun, and the personal discharge enhancement should only be modified as to
Jones.
The court responded:

“[T]he Court finds that the verdict of the jury with regard to the findings
under … Section 12022.53, Subdivision (d) with regard to the defendant
personally discharging a firearm, that there is not substantial evidence to
support that as to Defendant Jones. And that by returning the verdict that
the Defendant Jones personally discharged the firearm, that is inconsistent
with their finding that Defendant Perkins discharged the firearm. [¶] This
Court does have the discretion and the power to strike such enhancements.
… So based on the finding of inconsistent verdicts and based on the finding
of insufficiency of the evidence, I do find it’s in the interest of justice to
strike the enhancements in Count 1 as to both the defendants. And those
are the enhancements under … Section 12022.53 Subdivision (d) only.”

14.
 Perkins’s attorney did not object to the court’s ruling.
Thereafter, the court sentenced both Perkins and Jones to life in prison without the
possibility of parole for count 1, first degree premeditated murder with the gang special
circumstance; and stayed the terms of 25 years for the firearm enhancement under section
12022.53, subdivisions (d) and (e)(1), and 15 years for the section 186.22,
subdivision (b)(1) gang enhancement. Perkins was also sentenced to a consecutive term
of seven years to life for willfully attempting to dissuade a witness with the gang
enhancement, and the court stayed the sentence imposed for felon in possession of a
firearm.
Defendants’ First Appeal
On May 18, 2012, this court filed the opinion in the joint appeal from Perkins and
Jones. As to Perkins, this court rejected his arguments and affirmed his convictions and
sentence. We agreed with Jones’s argument that his sentence of life without parole must
be vacated and the matter remanded for resentencing because the court was unaware of
its discretion to impose a term of 25 years to life, and otherwise affirmed his conviction. 6
SENATE BILL Nos. 1437 & 775
The instant appeal is from the denial of Perkins’s petition for resentencing that he
filed pursuant to Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), that
was effective on January 1, 2019, and amended “ ‘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

6 On October 31, 2012, the court held the resentencing hearing on remand for
Jones. The court noted Jones was 17 years old at the time of the offense and sentenced
him to 25 years to life for count 1, first degree murder, plus 25 years to life for the
firearm enhancement, for an aggregate term of 50 years to life. Jones filed an appeal
from the court’s sentencing decision on remand. We affirmed the sentence but found the
abstract of judgment had to be corrected to reflect that restitution was ordered to be joint
and several with Perkins. (People v. Jones, May 28, 2014, F066161 [nonpub. opn.].)

15.
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959, italics added
(Lewis).)
“Substantively, Senate Bill 1437 accomplishes this by amending section 188,
which defines malice, and section 189, which defines the degrees of murder, and as now
amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring that: ‘(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner
was convicted of first degree or second degree murder following a trial or accepted a plea
offer in lieu of a trial at which the petitioner could be convicted for first degree or second
degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second
degree murder because of changes to section 188 or 189 made effective January 1, 2019.’
[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the
appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1),
‘the court may deny the petition without prejudice to the filing of another petition.’ ”
(Lewis, supra, 11 Cal.5th at pp. 959–960.)
“Where the petition complies with [section 1170.95,] subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to assess whether the petitioner
has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines
that a prima facie showing for relief has been made, the trial court issues an order to show

16.
cause, and then 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 in the same manner as if the petitioner had not … previously been sentenced,
provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.]
‘The prosecutor and the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage,
‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing.’ ” (Lewis, supra, 11 Cal.5th at p. 960.)
Lewis
In Lewis, the court interpreted the provisions of section 1170.95 and held that
petitioners “are entitled to the appointment of counsel upon the filing of a facially
sufficient petition [citation] and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957, italics added in original.)
Lewis held the language of section 1170.95, subdivision (c) “is mandatory: ‘If the
petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner.’ ” (Lewis, p. 963, italics added in original.) The court’s failure to appoint
counsel only constitutes state error subject to review under People v. Watson (1956) 46
Cal.2d 818. (Lewis, at p. 973.)
Lewis also held that “at the prima facie stage, a petitioner’s allegations should be
accepted as true, and the court should not make credibility determinations or engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Lewis,
supra, 11 Cal.5th at p. 974.) When the court conducts the prima facie determination,
section 1170.95, subdivision (b)(2) only permits screening out “noncomplying petitions,
not petitions that lack substantive merit.” (Lewis, at p. 968.)

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 Lewis further held that after appointing counsel, the trial court could rely on the
record of conviction to determine whether the prima facie showing is made “to
distinguish petitions with potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) The record of conviction includes a prior appellate opinion,
although it will be case-specific. (Id. at p. 972.)
The prima facie finding under section 1170.95, subdivision (c) is limited, and the
court must accept the petitioner’s factual allegations as true and cannot reject the
allegations on credibility grounds without conducting an evidentiary hearing. (Lewis,
supra, 11 Cal.5th at p. 971.) “ ‘However, if the record, including the court’s own
documents, “contain[s] facts refuting the allegations made in the petition,” then “the court
is justified in making a credibility determination adverse to the petitioner.” ’ ” (Ibid.) “In
reviewing any part of the record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.] [T]he ‘prima facie bar was intentionally and correctly set very
low.’ ” (Lewis, at p. 972.)
Senate Bill No. 775
In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95,
effective on January 1, 2022. (2020–2021 Reg. Sess.; Stats. 2021, ch. 551, § 1) (Senate
Bill 775).) As a result of the amendments, section 1170.95 clarified that “persons
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 to have that conviction
vacated under certain circumstances. (§ 1170.95, subd. (a).)
The amendments also codified the holding in Lewis that a petitioner has the right
to appointment of counsel, if requested, prior to the court making the prima facie finding:
“Upon receiving a petition in which the information required by this subdivision is set

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forth …, if the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the
parties shall have the opportunity to submit briefing, and “the court shall hold a hearing
to determine whether the petitioner has made a prima facie case for relief.” (Id., at
subd. (c).)
If the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court declines to make an order
to show cause, it shall provide a statement fully setting forth its reasons for doing so.
(§ 1170.95, subd. (c).) If the court issues the order to show cause and conducts a hearing,
the prosecution has the burden to prove beyond a reasonable doubt that petitioner is
guilty of murder or attempted murder under the amended versions of sections 188
and 189. (Id., at subd. (d)(3).)
“The admission of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion. However, hearsay
evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of
Section 872 shall be excluded from the hearing as hearsay, unless the evidence is
admissible pursuant to another exception to the hearsay rule. The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective burdens. A
finding that there is substantial evidence to support a conviction for murder … is
insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff.
Jan. 1, 2022.)

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 PERKINS’S SECTION 1170.95 PETITION
On December 18, 2019, Perkins filed a petition in the superior court for
resentencing of his life term pursuant to section 1170.95 and requested appointment of
counsel.
The petition was supported by Perkins’s declaration, signed under penalty of
perjury, where he checked boxes on a preprinted form that he was entitled to resentencing
under section 1170.95 because a complaint or information was filed against him that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine; at trial, he was convicted of first or second
degree pursuant to the felony-murder rule or the natural and probable consequences
doctrine; and he could not now be convicted of first or second degree murder under the
amended versions to sections 188 and 189.
Perkins further declared he was not the actual killer; he did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit or assist the actual killer in the
commission of first degree murder; and there was no prior determination by the court or
jury that he was a major participant or acted with reckless indifference to human life.
On December 27, 2019, the court appointed the public defender to represent
Perkins.
The Prosecution’s Opposition
On February 5, 2020, the People filed opposition, with this court’s nonpublished
opinion from Perkins’s first appeal as a supporting exhibit.
The People argued Perkins was not eligible for relief under section 1170.95
because he was not prosecuted under the felony-murder rule or the natural and probable
consequences doctrine, and no underlying crime or unlawful act was alleged or argued.
Instead, Perkins was tried and convicted based on premeditated murder and actual malice.
In addition, the jury found true the gang special circumstance, that whether or not he was
the actual killer, he acted with the intent to kill (§ 190.2, subd. (a)(22)).

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Perkins’s Reply
On March 11, 2020, the superior court directed Perkins to file a reply.
On May 19, 2020, the public defender, on behalf of Perkins, filed a reply, did not
object to the People’s filing and reliance on the prior appellate opinion, and submitted the
matter based on Perkins’s petition where he denied being the actual killer.
The Court’s Denial of the Petition
On June 1, 2020, the superior court issued an order that denied Perkins’s petition:

“The court has conducted its own review of the court’s file, including the
opinion of the Fifth District Court of Appeal filed on 05/18/2012.
Defendant Perkins was convicted of first degree murder and this conviction
was not based on the felony-murder rule or the natural and probable
consequences doctrine. [¶] The jury also found true the gang special
circumstance under … section 190.2(a)(22). The language of the special
circumstance tracks the language of Senate Bill 1437 and the new felony-
murder statutes. As a matter of law, defendant Perkins has failed to
establish a prima facie case of eligibility for resentencing, and the petition
is denied.”
On June 5, 2020, Perkins filed a timely notice of appeal of the court’s order of
June 1, 2020.
DISCUSSION
As noted above, Perkins’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that Perkins was
advised he could file his own brief with this court. By letter on December 10, 2020, we
invited him to submit additional briefing.
Perkins’s Letter Brief
On December 29, 2020, Perkins filed a letter brief in the instant Wende appeal,
and stated the court abused its discretion when the court “took it in his hands” to strike
the section 12022.53, subdivision (d) personal discharge enhancement at the sentencing
hearing, it improperly “removed an element” and denied him “the opportunity to have the
issue reviewed on direct appeal,” and he had been serving an illegal sentence as a result.

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 Perkins’s argument is based on the court’s decision at the sentencing hearing in
2010, when it ordered the personal discharge enhancement pursuant to 12022.53,
subdivision (d) stricken as to count 1, murder, for both Perkins and Jones, because of
inconsistent verdicts and insufficient evidence. Perkins did not object to the court’s
order, and he did not raise this issue in his direct appeal and has forfeited further review.
(See, e.g., In re Reno (2012) 55 Cal.4th 428, 486.)
Moreover, the court’s decision to strike the personal discharge enhancement did
not invalidate Perkins’s murder conviction or life sentence based on the nature of the
jury’s verdicts and findings. As to both Perkins and Jones, there were two separate
section 12022.53, subdivision (d) enhancements alleged and found true as to count 1, first
degree premeditated murder. The first enhancement alleged that each defendant
personally discharged a firearm causing death, within the meaning of section 12022.53,
subdivision (d); the court ordered this enhancement stricken. The second enhancement
alleged that each defendant was a principal in the murder, and that at least one principal
personally used a firearm, within the meaning of section 12022.53, subdivisions (d)
and (e)(1); the court imposed and stayed the term for this enhancement.
The court’s decision to strike the first subdivision (d) enhancement did not
invalidate the second subdivision (d) enhancement or invalidate Perkins’s conviction for
first degree premeditated murder and the sentence imposed in this case. Perkins was a
principal in the murder, he violated section 186.22, subdivision (b), and a co-principal in
the offense personally and intentionally discharged a firearm causing McGruder’s death.
As for his section 1170.95 petition, such a petition is properly denied if the jury
made a true finding on a special circumstance that renders the defendant ineligible for
relief. (People v. Fayed (2020) 9 Cal.5th 147, 201–202; People v. Nunez (2020) 57
Cal.App.5th 78, 90–91; People v. Allison (2020) 55 Cal.App.5th 449, 457–458.) Section
189, subdivision (e), as amended, states in relevant part that a person is liable for murder
if the actual killer; or the person was not the actual killer but, with the intent to kill, aided,

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abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer
in the commission of murder in the first degree.
The superior court properly found Perkins was not eligible for resentencing under
section 1170.95. The jury was instructed on first and second degree murder, malice, and
premeditation, and direct aiding and abetting. The jury was not instructed on the felony-
murder rule, the natural and probable consequences theory, or any underlying felonies.
The jury found true the gang special circumstance under section 190.2,
subdivision (a)(22) – that “[t]he defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang … and the murder was
carried out to further the activities of the criminal street gang.” The jury was instructed
with CALJIC No. 8.80.1, which stated in relevant part: “Unless an intent to kill is an
element of the special circumstance, if you are satisfied beyond a reasonable doubt that
the defendant actually killed a human being, you need not find that the defendant
intended to kill in order to find the special circumstance to be true. [¶] If you find that a
defendant was not the actual killer of a human being, or are unable to decide whether the
defendant was the actual killer or an aider and abettor, you cannot find the special
circumstance to be true as to that defendant unless you are satisfied beyond a reasonable
doubt that such defendant with the intent to kill aided and abetted any actor in the
commission of murder in the first degree.” (Italics added.) The jury was also instructed
pursuant to CALJIC No. 8.81.22, in relevant part, that as to count 1, murder, “[t]o find
the special circumstance ‘intentional killing by an active street gang member’ is true, it
must be proved” that the defendant “intentionally killed the victim,” and “[t]he defendant,
whether or not the actual killer, acted with the intent to kill.” (Italics added.)
The trial court’s instructions in this case only allowed the jury to find Perkins
guilty of first degree premeditated murder based on his own premeditation, deliberation,
and intent to kill. The jury’s true finding on the gang special circumstance required a
finding that Perkins acted with the intent to kill. The jury did not find Perkins was an

23.
aider and abettor under the natural and probable consequences doctrine or the felony-
murder rule. Thus, Perkins is ineligible for relief under section 1170.95 as a matter of
law.7
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.

7We note that in People v. Pacheco (March 9, 2022) __ Cal.App.5th __ [2022
Cal.App.LEXIS 192], Division 3 of the Fourth District held the defendant’s section
1170.95 petition should not have been summarily denied and remanded the matter for an
evidentiary hearing. The defendant was convicted of first degree murder as an aider and
abettor, and the gang special circumstance was found true. Pacheco held the special
circumstance did not automatically make the defendant ineligible for relief under section
1170.95 because the jury in that case was instructed on the natural and probable
consequences theory. While the instruction for the gang special circumstance stated the
jury had to find he had the intent to kill, the jury was not instructed to find the defendant
directly aided and abetted the target crime of murder. “Therefore, without weighing the
evidence, the jury’s true finding on the gang special circumstance does not conclusively
establish [the defendant] could be found guilty of murder under the current law (that he
had the intent to kill, and he directly aided and abetted the target crime of murder.)” In
contrast to Pacheco, the jury in this case was not instructed on the natural and probable
consequences doctrine and was only instructed on direct aiding and abetting.

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