Filed 5/20/22 P. v. Perez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B310887
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA005708)
v.
EDDIE ANTHONY PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Reversed and remanded.
Paul Kleven, 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, Roberta L. Davis and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Eddie Anthony Perez (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code section
1170.95.1 The trial court’s denial was error because the record of
conviction did not foreclose relief as a matter of law. We
accordingly reverse and remand for an evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
On October 12, 1990, following a melee involving several
people at an after-party, Gilbert Eugene Rosales (Rosales) called
defendant, and asked defendant to pick up him up and to bring a
gun “because there was trouble.” Defendant did as Rosales
asked. When one of the people involved in the earlier fight
approached defendant’s car, defendant opened the hatchback of
the car and Rosales fired several shots from the rifle defendant
brought. One of the shots hit one of those people, killing him.
B. Charging, conviction and appeal
The People charged defendant with (1) first degree murder
(§ 187, subd. (a)), and (2) discharging a firearm at an occupied
motor vehicle (§ 246). The People also alleged that defendant had
furnished a firearm for the purpose of aiding and abetting
another person to commit a felony (§ 12022.4), and that a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior opinion affirming
defendant’s conviction on appeal. (People v. Rosales and Perez
(Jan. 27, 1993, B062327) [nonpub. opn.].)
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principal was armed with a firearm (§ 12022, subd. (a)(1)).3
Because it was undisputed that Rosales had been the shooter, the
jury was instructed that defendant could be liable for the murder
as either (1) someone who directly aided and abetted the murder
itself (using the then-current version of CALJIC No. 3.01), or (2)
someone who aided and abetted Rosales in committing some
lesser crime, the natural and probable consequence of which was
murder (using the then-current version of CALJIC No. 3.02).
The jury convicted defendant of second degree murder and
found true the special allegations. The jury found defendant not
guilty of discharging a firearm at an occupied motor vehicle. The
trial court sentenced defendant to prison for 15 years to life.4
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On February 14, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he was
convicted of murder “pursuant to the felony murder rule or the
natural and probable consequences doctrine,” and that his
murder conviction would be invalid under the “changes made to
3 Rosales was also charged with first degree murder (§ 187,
subd. (a)), and discharging a firearm at an occupied motor vehicle
(§ 246), and the People further alleged that Rosales had inflicted
great bodily injury and death on the victim as a result of
discharging a firearm from a motor vehicle (§ 12022.55), and had
personally used a firearm (§ 12022.5).
4 Rosales was convicted of first degree murder, and the jury
found true all the special allegations; he was sentenced to 30
years to life in state prison.
3
Penal Code §§ 188 and 189, effective January 1, 2019.” The
People filed a response arguing that defendant was not eligible
for relief as a matter of law because he was convicted of murder
as a direct aider and abettor, and that section 1170.95 was
unconstitutional.
Following a February 18, 2021 hearing, the trial court
denied the petition on the ground that defendant had not
“demonstrated a prima facie case for eligibility under Penal Code
section 1170.95 because the jury was not instructed on felony
murder, on a felony murder theory or a natural and probable
consequences doctrine.”
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition because his jury was
instructed on the natural and probable consequences doctrine.
Because the trial court’s reason for summarily denying relief
turns on its interpretation of section 1170.95 and the application
of law to undisputed facts, our review is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment 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,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder
. . . because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our
Legislature amended section 188 to provide that “in order to be
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convicted of murder, a principal in a crime shall act with malice
aforethought” and that “[m]alice shall not be imputed to a person
based solely on his . . . participation in a crime.” (§ 188, subd.
(a)(3).)
Although the trial court followed the correct procedures in
appointing defendant counsel and entertaining briefing, the court
nevertheless erred in summarily denying defendant’s petition
because it set forth a prima facie entitlement to relief. (People v.
Lewis (2021) 11 Cal.5th 952, 964.) In assessing whether a
defendant seeking relief under section 1170.95 has made out a
prima facie case warranting an evidentiary hearing, a trial court
must take the petition’s factual allegations as true and ask
“‘whether the petitioner would be entitled to relief if [those]
allegations were proved.’” (Id. at p. 971.) “‘However, if the
record, including the court’s own documents [from the record of
conviction] “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.)
Here, defendant has made the requisite prima facie
showing for relief because his petition alleges that he was
charged with murder under a natural and probable consequences
theory, was convicted of second degree murder, and “could not
now be convicted of . . . second degree murder.” What is more,
nothing in the record of conviction refutes those allegations.
Contrary to the trial court’s finding, the record indicates that the
jury in defendant’s case was instructed on the natural and
probable consequences theory of liability, and that the jury’s
general verdict may have rested on that theory. To be sure, the
version of the natural and probable consequences instruction
used in defendant’s case did not specify the lesser crime that the
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jury would have to find that defendant aided and abetted, but
this is of no consequence because defendant’s trial took place
before our Supreme Court held that trial courts must so specify.
(People v. Prettyman (1996) 14 Cal.4th 248, 264-267.) The
natural and probable consequences instruction the trial court
gave was the pattern jury instruction in effect at that time.
Consequently, and as the People concede, defendant has
established a prima facie entitlement to relief and the matter
must be remanded to the trial court for an evidentiary hearing.
Of course, “[w]e express no opinion about [defendant’s] ultimate
entitlement to relief following the hearing. (§ 1170.95, subd.
(d)(2).)” (People v. Drayton (2020) 47 Cal.5th 965, 983.)
Defendant makes two further arguments for relief. First,
he argues that his counsel was constitutionally ineffective for not
pointing out to the trial court that his jury was instructed on the
natural and probable consequences theory. In light of our
disposition, this argument is moot. Second, defendant argues
that a murder conviction may not stand on a theory that he
directly aided and abetted an implied malice murder. This
argument is beyond the scope of section 1170.95, which provides
relief only for certain homicide and attempted homicide
convictions resting on theories of vicarious liability without any
showing of personal mens rea; by its plain text, section 1170.95 is
not a tool for attacking murder convictions on any other grounds.
DISPOSITION
The order is reversed. On remand, the trial court is to re-
appoint counsel (if necessary) and to conduct an evidentiary
hearing contemplated by section 1170.95, subdivision (d)(3) at
which it is the prosecution’s burden to prove beyond a reasonable
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doubt that defendant is “ineligible for resentencing” under section
1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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