Filed 5/4/23 P. v. Perez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B317663
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA125735)
v.
LUIS PEREZ et al.,
Defendants and
Appellants.
APPEAL from orders of the Superior Court of Los Angeles
County, Eleanor J. Hunter, Judge. Affirmed.
Nancy L. Tetreault, under appointment by the Court of
Appeal, for Defendant and Appellant Luis Perez.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant Ezequiel Ruiz.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
******
Luiz Perez (Perez) and Ezequiel Ruiz (Ruiz) (collectively,
defendants) appeal the trial court’s denial of their petitions for
resentencing under Penal Code section 1172.6 (former section
1170.95).1 Because the petitions were properly denied, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crimes
In the early morning hours of September 1, 2012, Perez,
Ruiz, and another gang member punched and kicked a rival gang
member, Julio Mejia (Mejia), until he was on the ground, and
then continued to stomp on his head and body. Blood was
1 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
For the sake of simplicity, we will refer to the section by its new
numbering only.
All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendants’ convictions. (People v. Perez et al.
(Mar. 6, 2017, B269704) [nonpub. opn.].)
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everywhere. Perez and Ruiz placed Mejia’s limp body in a trash
can and wheeled him down the street to an empty lot where
Miguel Barajas (Barajas) and other fellow gang members hung
out. Perez carved one of their gang symbols—the letter “V”—into
Mejia’s chest by making 10 cuts with a sharp object. Perez and
Ruiz then walked away, leaving Mejia moaning in a pool of his
own blood.
Barajas decided to “clean[ ] up their mess” by “finish[ing]
the job.” He wrapped several pieces of broken cinderblock into a
T-shirt and bludgeoned Mejia over the head with his makeshift
weapon until Mejia no longer moved. Barajas then wrapped
Mejia’s body in a carpet and tarp, placed it in the trunk of a car,
and drove to a park in Long Beach. Once at the park, Barajas
put Mejia’s body in a group of bushes, doused it with lighter fluid,
and set it ablaze.
B. Trial, conviction and sentencing
The People charged (1) Perez, Ruiz and Barajas with
Mejia’s murder (§ 187, subd. (a)), (2) Perez and Ruiz with
kidnapping Mejia (§ 207, subd. (a)), and (3) Perez with torturing
Mejia (§ 206). The People also alleged, as to all three defendants,
(1) the special circumstance that the murder was committed in
the course of a kidnapping (§ 190.2, subd. (a)(17)), and (2) the
special circumstance that defendants intentionally killed Mejia
while being active participants in a criminal street gang (§§
186.22, subd. (f), 190.2, subd. (a)(22)). The People alleged, as to
Perez alone, the special circumstance that the murder was
intentional and involved the infliction of torture (§ 190.2, subd.
(a)(18)). The People alleged that all of the charged crimes were
committed for the benefit of, at the direction of, or in association
with a criminal street gang (§ 186.22, subd. (b)(1)).
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All three defendants proceeded to a joint jury trial.
At the conclusion of the trial and as pertinent to this
appeal, the court instructed the jury that Perez and Ruiz could be
convicted of murder on the following theories: (1) of first or
second degree murder, either as (a) Mejia’s actual killers (the
actual killer theory) or (b) aiders and abettors of Barajas, where
Barajas is the actual killer of Mejia (the direct aiding and
abetting theory); and (2) of first degree murder under the theory
that the murder occurred during the course of the felony of
kidnapping (the felony-murder theory). Indeed, the court
confirmed these were the pertinent theories when it instructed
that Perez and Ruiz were being prosecuted for murder “under two
theories: (1) malice aforethought, and (2) felony murder.”
(CALCRIM No. 548.) The court conveyed these theories by giving
the pattern jury instructions on murder, aiding and abetting, and
felony murder as to kidnapping. The court did not instruct on the
natural and probable consequences theory of liability. The trial
court also instructed the jury that it “must also decide whether
the People have proved that one or more of the special
circumstances is true” if they find a defendant guilty of first
degree murder.
The jury convicted Barajas of first degree murder, and
found true the gang special circumstance, which rested upon the
finding that Barajas intentionally killed Mejia while he was
an active participant in a criminal street gang and that the
murder was carried out to further the activities of the gang. The
jury convicted Perez and Ruiz of second degree murder, convicted
both of kidnapping, and convicted Perez of torture. The jury also
found true the kidnapping special circumstance. As to all crimes
and all defendants, the jury found true the allegation that the
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crimes were committed for the benefit of, at the direction of, or in
association with a criminal street gang.
The trial court sentenced Perez to prison for 48 years to
life, comprised of 15 years to life for second degree murder, plus a
consecutive life sentence with a 15-year minimum for the torture
count (calculated as a life term with a 15-year minimum for the
gang enhancement), plus a consecutive 18-year term for the
kidnapping (calculated as an eight-year base term plus 10 years
for the gang enhancement). The court sentenced Ruiz to prison
for 33 years to life, comprised of 15 years to life for second degree
murder plus a consecutive 18-year term for the kidnapping.
C. Direct appeal
Defendants appealed their convictions, raising a host of
evidentiary and instructional challenges. We rejected one of their
challenges to the felony-murder instructions in part because it
could provide no basis for reversal: “Because the jury found
Perez and Ruiz guilty of second degree murder,” we reasoned, the
jury’s “verdict necessarily rests on malice aforethought, not on
the felony-murder rule.” We affirmed the convictions, but
ordered that their sentences be modified slightly.
II. Procedural Background
In January 2019 and September 2019, Ruiz and Perez filed
their respective petitions for resentencing under section 1172.6.
Perez subsequently filed a brief in support of his petition. The
People filed a variety of responses.
The petitions were bounced between various trial judges.
At a June 9, 2021, status conference, Perez’s lawyer represented
that no order to show cause had been issued. At an August 25,
2021, hearing before the judge who had presided over the trial
but who had not presided over the June 9, 2021, hearing, the
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court noted its belief that an order to show cause had been issued
based on a “prima facie” case being “found.” That judge thus
convened an “O.S.C. evidentiary hearing” on December 1, 2021.
Neither defendants nor the People presented any new evidence.
The court took the matter under submission and issued two
identical orders denying relief in January 2022. Specifically, the
court made a “factual finding” that “[t]he People have proven
beyond a reasonable doubt that [defendants are] ineligible for
resentencing” because their convictions did not rest on any now-
invalid theory of murder liability: The jury’s verdict of second
degree murder, as we noted in our prior opinion, necessarily
meant that the jury’s verdict did not rest on the now-potentially-
invalid felony-murder theory because the felony-murder
instruction dictated a conviction of first degree murder; and the
jury was never instructed on the now-invalid natural and
probable consequences theory.
Defendants each filed timely appeals.
DISCUSSION
Defendants argue that the trial court erred in denying their
petitions for resentencing under section 1172.6. In considering
this argument, we independently evaluate questions of law and
the application of the law to undisputed facts. (Tsasu LLC v. U.S
Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.) This includes
the determination of whether a section 1172.6 petition is
ineligible for relief as a matter of law. (People v. Lopez (2022) 78
Cal.App.5th 1, 14 (Lopez).) We review for substantial evidence
any factual findings made by the trial court. (People v.
Tully (2012) 54 Cal.4th 952, 979.)
“Our Legislature enacted what is now section 1172.6 and
simultaneously amended sections 188 and 189 in order to
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eliminate criminal liability for murder, attempted murder, and
manslaughter absent a showing of the defendant’s personal
intent; no longer can a conviction for these crimes rest on notions
of vicarious intent—that is, on the imputation of someone else’s
intent to the defendant based solely on the defendant’s
‘participation in the crime.’ (§§ 188, 189, 1172.6, subd. (a).) Now,
a conviction for these crimes requires proof that the defendant (1)
was the actual killer (who acted with the requisite express or
implied malice), (2) directly aided and abetted the actual killer
while acting with [express or implied malice], or (3) was a major
participant in a felony who acted with reckless indifference to the
value of human life. (§§ 188, 189.) While the amendments to
sections 188 and 189 narrow the elements of murder
prospectively, section 1172.6 is the statutory mechanism for
determining whether to retroactively vacate a final murder,
attempted murder, or manslaughter conviction that does not
comply with the new, narrower definitions. A defendant seeking
relief under section 1172.6 must ‘file a petition’ alleging
entitlement to relief along with ‘[a] declaration’ attesting to
eligibility for relief. (§ 1172.6, subds. (a) & (b)(1)(A).) If the
defendant ‘makes a prima facie showing’ of entitlement to relief
(that is, if the record of conviction does not establish ineligibility
for relief as a matter of law), then the court must in most cases
convene an evidentiary hearing where the People bear the
burden of establishing beyond a reasonable doubt that the
defendant is guilty of the pertinent crime under the new,
narrower definitions. (§ 1172.6, subds. (c) & (d).) At that
evidentiary hearing, the court may consider ‘evidence previously
admitted at any prior hearing or trial’ that is admissible under
current law, as well as ‘new or additional evidence’ that is
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admissible under current law [and ‘the procedural history of the
case recited in any prior appellate opinion.’] (§ 1172.6, subd.
(d)(3).) If the People ‘fail[s] to sustain its burden of proof’ at the
evidentiary hearing, then the conviction must be ‘vacated’ and the
defendant resentenced. (§ 1172.6, subd. (d)(3).)” (People v.
Duran (2022) 84 Cal.App.5th 920, 927.)
We independently conclude that defendants’ petitions were
properly denied because defendants are not eligible for relief
under section 1172.6 as a matter of law.
A defendant is ineligible for relief if the instructions given
to the jury as well as the jury’s verdict necessarily—and hence
definitively—show that the defendant’s murder conviction rests
solely on still-valid theories of liability. In assessing what the
jury necessarily determined, we may examine both the jury
instructions as well as the jury’s verdicts and findings. (People v.
Mancilla (2021) 67 Cal.App.5th 854, 866-867 [looking to absence
of instructions on an invalid theory]; People v. Daniel (2020) 57
Cal.App.5th 666, 677 [same]; Lopez, supra, 78 Cal.App.5th at p.
11 [same]; People v. Williams (2022) 86 Cal.App.5th 1244, 1257,
1259 [looking to jury’s verdicts and findings to assess what they
“necessarily” mean about the theories of liability underlying the
verdict].)
The jury instructions as well as the jury’s verdicts and
findings in this case definitively establish that defendants’
murder convictions rest on a still-valid theory of criminal
liability. Here, the jury was instructed that it could convict Perez
and Ruiz of murder on (1) one of two malice-based theories
(namely, as actual killers acting with implied malice or as aiding
and abetting Barajas in murdering Mejia), or (2) a felony-murder
theory. There was no instruction on the natural and probable
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consequences theory. The jury’s verdicts and special
circumstance findings further narrowed the possible bases for
defendants’ murder convictions. The jury found defendants
guilty of second degree murder; because the jury instructions
specified that the felony-murder theory demanded a conviction of
first degree murder, the jury’s rejection of first degree murder
necessarily means that the jury’s verdict did not rest on a felony-
murder theory. The jury also found true the gang special
circumstance as to Barajas, which required a finding that
Barajas intentionally murdered Mejia, which necessarily means
that defendants must have aided and abetted Barajas as Barajas
committed the murder with express malice (rather than implied
malice). (Accord, People v. Coley (2022) 77 Cal.App.5th 539, 547-
548 [“An intent to kill is the equivalent of express malice . . .”].)
In light of the jury instructions, the jury’s verdicts, and the
jury’s findings, the only two theories on which the murder verdict
against defendants could rest are that (1) Perez and Ruiz were
the actual killers who acted with implied malice (because they
performed an act—namely, deliberately stomping on Mejia’s head
and leaving him for dead at the gang’s hangout—while
subjectively knowing that this conduct “endangers the life of
another” (People v. Vizcarra (2022) 84 Cal.App.5th 377, 388-389),
or (2) Perez and Ruiz aided and abetted Barajas when Barajas
intentionally killed Mejia by pummeling his skull with a T-shirt
full of cinder blocks. Both of these theories—being an actual
killer and being someone aiding and abetting the actual killer
who kills with express malice—are still valid theories of murder
liability. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 587-588
[actual killer acting with implied malice is a valid theory]; People
v. Rivera (2021) 62 Cal.App.5th 217, 232 [same]; People v. Perez
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(2022) 78 Cal.App.5th 192, 205 [directly aiding and abetting the
killer who acts with express malice is a valid theory].)
Defendants respond with what seems to boil down to five
groups of arguments.
First, defendants argue that the trial court erred
procedurally when it issued an order to show cause, which
entitled defendants to an evidentiary hearing, but then
backtracked and made a “factual finding” that defendants were
ineligible for relief based on the jury instructions and the
portions of our opinion discussing what the jury’s verdicts and
findings necessarily meant regarding the underlying theory for
liability. Defendants urge—and the People do not dispute—that
the trial court’s “factual finding” was really a determination that
defendants were ineligible for relief as a matter of law, and
defendants go on to argue that such a finding is no longer allowed
once a court has determined that a prima facie case has been
made. Defendants are legally wrong.3 A trial court may initially
determine that there is a prima facie case for relief under section
1172.6, proceed to an evidentiary hearing, and then determine
that its initial determination was incorrect and rule that the
defendant was ineligible for relief as a matter of law. Contrary to
what defendants suggest, there is not some sort of “estoppel”
effect that prevents a trial court from correcting its earlier
mistake. (E.g., People v. Medrano (2021) 68 Cal.App.5th 177,
181-182 [so holding]; People v. Garrison (2021) 73 Cal.App.5th
735, 745-746.)
3 Defendants may also be factually wrong, as the record
reflects only that the second trial judge thought the first judge
found a prima facie case; the record does not reflect such a prior
finding.
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Second, defendants seem to assert that there is insufficient
evidence to support a verdict of guilty on either of the still-valid
theories of (1) being an actual killer acting with implied malice,
or (2) aiding and abetting Barajas as he intentionally murdered
Mejia. This assertion has no place in a section 1172.6 petition.
The purpose of that petition is to determine whether a murder
conviction rests on a now-invalid theory of liability; it is not to
serve as a vehicle for collaterally attacking the sufficiency of the
evidence underlying a murder conviction on the theories that still
validly support it. (E.g., People v. Nguyen (2020) 53 Cal.App.5th
1154, 1167-1168 [section 1172.6 petitions may not be “us[ed] as a
vehicle for collaterally attacking . . . the sufficiency of the
evidence”], overruled on other grounds in People v. Lewis (2021)
11 Cal.5th 952, 966.)
Third, defendants contend that the jury’s verdict is
inherently inconsistent because the jury’s verdict of second
degree murder means that the jury rejected felony murder as a
theory, yet the jury nevertheless returned a “true” finding on the
kidnapping special circumstance, which only applies if there is a
first degree murder conviction. This is of no moment. To begin,
inconsistency within a jury’s verdict does not call into question
the soundness of that verdict. (People v. Santamaria (1994) 8
Cal.4th 903, 911.) More to the point, the jury’s verdict fixing the
degree of murder at second degree renders its special
circumstance finding superfluous; it does not call into question
the jury’s determination that the murder is in the second degree
and hence not based on a felony-murder theory.
Fourth, defendants argue that the trial court was wrong to
conclude that they are ineligible for relief under section 1172.6 as
a matter of law because (1) the pattern jury instructions that
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provide for a conviction of aiding and abetting a perpetrator who
acts with implied malice sometimes leave the door open for
conviction on a now-invalid theory if those instructions are not
“properly tailored” (under People v. Powell (2021) 63 Cal.App.5th
689, 714-715; People v. Langi (2022) 73 Cal.App.5th 972, 981-
983), and (2) the jury here did not make any findings that Perez
and Ruiz were major participants who acted with reckless
indifference to human life, as those terms were narrowed in
People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016)
63 Cal.4th 522. These arguments are irrelevant because the
jury’s verdict does not rely on a theory of aiding and abetting an
implied malice murder or on a felony-murder theory. Thus, the
potential defects defendants cite in no way undermine the
correctness of dismissing their petitions.
Lastly, defendants raise a host of constitutional issues,
claiming that denial of their petitions violates due process,
violates equal protection, and inflicts cruel and unusual
punishment. These arguments lack merit. Defendants urge that
denying them relief violates due process because the trial court
failed to follow the proper procedures set forth in section 1172.6.
(Accord, Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [deprivation
of state law right to jury determination of sentence violated the
defendant’s federal due process rights].) Because we have
concluded that the procedures were properly followed, the factual
premise of this argument is absent. Defendants urge that
denying them relief violates equal protection because other
people who are entitled to relief are granted relief, yet defendants
were denied relief despite being entitled to it. Again, because we
have concluded that defendants are not entitled to relief, the
factual premise of this argument is also absent. Defendants urge
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that denying them relief means they are subjected to cruel and
unusual punishment. Defendants have forfeited this argument
by not supporting it with any reasoned argument. (Cal. Rules of
Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th
764, 793.) What is more, defendants cite no precedent to support
the notion that denial of post-conviction ameliorative relief to a
previously sound conviction results in a cruel and unusual
punishment.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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