Filed 12/15/22 P. v. Perry 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B319583
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA230628)
v.
MANUEL PERRY,
Defendant and Appellant.
THE COURT:
In 2003, a jury found defendant and appellant Manuel
Perry guilty of two counts of carjacking (Pen. Code, § 215,
subd. (a)),1 two counts of robbery (§ 211), and two counts of
kidnapping for ransom (§ 209, subd. (a)). As to the kidnapping
for ransom counts, the jury found true allegations that the
victims suffered bodily harm or were intentionally confined in a
manner that exposed them to a substantial likelihood of death.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
(§ 209, subd. (a).) The trial court sentenced defendant to two
consecutive prison terms of life without the possibility of parole.
On direct appeal, we affirmed the judgment but directed
the trial court to correct the abstract of judgment to strike a
reference to a parole revocation fine. (People v. Gomez (Aug. 18,
2004, B168688) [nonpub. opn.], p. 31.)
On August 4, 2021, defendant, in propria persona, filed a
petition for resentencing under section 1172.6 (former
§ 1170.95).2 The trial court appointed counsel to represent
defendant. The People filed an opposition to the petition.
Appointed counsel submitted on defendant’s petition. Defendant
personally filed a separate response.
On February 25, 2022, the trial court denied the petition on
the ground that defendant was not convicted of a homicide
offense and, therefore, was not eligible for relief under
section 1172.6. Defendant timely appealed from the ruling.
Counsel was appointed to represent defendant in
connection with this appeal. After reviewing the record, counsel
filed a brief raising no issues and asking this court to follow the
procedures set forth in People v. Serrano (2012) 211 Cal.App.4th
496 (Serrano). We then notified defendant that he could
personally submit a supplemental brief or letter stating any
grounds for an appeal, contentions, or arguments for us to
consider. Defendant submitted a supplemental brief.
Because this appeal is from an order denying postjudgment
relief, we are not required to conduct an independent review of
the record for arguable issues. (People v. Cole (2020)
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
For simplicity, we refer to the section by its new numbering.
2
52 Cal.App.5th 1023, 1039–1040 (Cole), review granted Oct. 14,
2020, S264278; see also Serrano, supra, 211 Cal.App.4th at
p. 503.)3 While we would typically evaluate the merits of
arguments presented in defendant’s supplemental brief (Cole,
supra, at p. 1040), here defendant has not set forth any
arguments pertaining to the denial of his section 1172.6 petition.
Rather, he requests “that all charges be dismissed” because the
prosecutor allegedly failed to bring him before a magistrate judge
within 48 hours of his arrest in 2002. Defendant also contends
3 A split of authority exists as to whether the independent
review mandated by People v. Wende (1979) 25 Cal.3d 436
(Wende) should be applied to an appeal from the denial of a
section 1172.6 petition. (Compare Cole, supra, 52 Cal.App.5th at
p. 1028 [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief”]; People v.
Figueras (2021) 61 Cal.App.5th 108, 111, review granted May 12,
2021, S267870 [“the procedures set forth in Wende do not apply to
appeals from the denial of postconviction relief”]; People v. Griffin
(2022) 85 Cal.App.5th 329, 335–336 [“the interests of justice call
for an independent review of the record as an additional layer of
protection from the risk of a defendant remaining unlawfully
incarcerated because of a failure to discover a meritorious issue
in his or her appeal from the denial of their section 1172.6
resentencing petition”]; People v. Flores (2020) 54 Cal.App.5th
266, 274 [“although it is not required under law, we think an
appellate court can and should independently review the record
on appeal when an indigent defendant’s appointed counsel has
filed a Wende brief in a postjudgment appeal from a summary
denial of a section [1172.6] petition (regardless of whether the
petitioner has filed a supplemental brief)”].) Pending further
clarification from our Supreme Court, we continue to adhere to
the reasoning and procedures set forth in Cole, supra,
52 Cal.App.5th at pages 1035–1040.
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that the prosecutor knowingly “presented false evidence” during
trial.4 These arguments are unrelated to the order from which
defendant appeals and, therefore, are not properly before us.
In short, we have been presented with no basis for
reversing the trial court’s denial of defendant’s section 1172.6
petition.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.
4 Attached to his eight-page supplemental brief, defendant
submitted 276 pages of exhibits, including various trial court
filings and transcripts. To the extent that these documents are
not part of the appellate record, we decline to consider them.
(See Hodge v. Kirkpatrick Development, Inc. (2005) 130
Cal.App.4th 540, 546, fn. 1 [declining to consider document
attached to brief that was not part of the appellate record]; cf.
Cal. Rules of Court, rule 8.204(d) [“[a] party filing a brief may
attach copies of exhibits or other materials in the appellate
record” not exceeding 10 pages].)
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