Perea v. State

2018 UT App 229
THE UTAH COURT OF APPEALS
R IQO PEREA,
Appellant,
v.
S TATE OF U TAH ,
Appellee.
Opinion
No. 20170398-CA
Filed December 20, 2018
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 160903792
Randall W. Richards, Attorney for Appellant
Sean D. Reyes and Erin Riley, Attorneys for Appellee
JUDGE GREGORY K. O RME authored this Opinion, in which
JUDGES K ATE A PPLEBY1 and DAVID N. M ORTENSEN concurred.
ORME, Judge:
¶1 	Appellant Riqo Perea challenges the district court’s order
dismissing 	his 	petition 	for 	postconviction 	relief 	that 	was
premised on a claim of factual innocence. We affirm.
¶2 	Perea, a member of the Ogden Trece gang, was visiting an
Ogden home with several friends, including other Trece gang
members. He got into a heated argument with members of the
rival Norteños gang who were attending a wedding reception at
a house across the street. Perea and his friends then got into a
vehicle. As the vehicle pulled away, Perea, in the front passenger
1. Judge Kate A. Toomey has resumed the use of her birth name
and is now known as Judge Kate Appleby.

Perea v. State
20170398-CA 	2 	2018 UT App 229
seat, climbed out the window, reached over the roof, and fired
ten shots into the wedding crowd. Two people were killed, and
others were injured.
¶3 	A few days later, Perea confessed to police that he was the
only person in the vehicle with a gun and that he fired the shots
into the crowd. He also told police that he used a .22 caliber
weapon, although the police had not disclosed that .22 was the
caliber of gun used in the shooting. At trial, a witness (Witness),
who had been standing on the walkway of the house where the
wedding was held, testified that it was Perea who fired from the
vehicle into the crowd. Passengers in the vehicle also testified
that it was Perea who fired the shots. A jury convicted Perea on
two counts each of aggravated murder and attempted murder.
He was sentenced to life in prison without the possibility of
parole for the aggravated murder convictions and three years to
life for the attempted murder convictions.
¶4 	Perea appealed his convictions. The Utah Supreme Court
upheld them and noted “the overwhelming evidence of Mr.
Perea’s guilt.” See State v. Perea, 2013 UT 68, ¶ 103, 322 P.3d 624.
The Court expressly upheld the admission of Perea’s confession
into 	evidence. 	Id. 	¶ 	96. 	Perea 	later 	filed 	a 	petition 	for
postconviction relief, but the district court summarily dismissed
it, determining that the Supreme Court, on direct appeal, had
already adjudicated the claims raised in the petition. This court
affirmed the district court’s dismissal of that postconviction
petition. See Perea v. State, 2017 UT App 67, ¶ 7, 397 P.3d 770.
¶5 	In 2015, Witness provided an affidavit to Perea’s counsel,
declaring that she did not see who fired the gun from the vehicle
and that she never saw Perea with a gun that evening. She also
stated that she felt “the police were pressuring [her] to testify in
a certain way” at trial. Perea filed this postconviction factual
innocence petition based on Witness’s affidavit, contending that
he was convicted on the strength of perjured testimony.

Perea v. State
20170398-CA 	3 	2018 UT App 229
¶6 	The State moved for summary judgment, arguing that
Perea’s “pleaded facts and proffered evidence . . . are insufficient
as a matter of law to demonstrate that he is entitled to factual
innocence 	post-conviction 	relief.” 	Determining 	that 	“the
evidence presented by [Perea] does not show that he did not
engage in the conduct for which he was convicted,” the district
court granted the motion and dismissed Perea’s petition. Perea
appeals.
¶7 	Perea contends that the district court erred in summarily
dismissing his factual innocence petition without holding an
evidentiary hearing.2 We review the district court’s decision de
novo. See Gressman v. State, 2013 UT 63, ¶ 6, 323 P.3d 998.
¶8 	To establish factual innocence, the Utah Post-Conviction
Remedies 	Act 	“contemplates 	a 	two-stage 	process,” 	and
“[s]ection 78B-9-402 sets forth what a petitioner must do at the
first stage to receive an evidentiary hearing on her petition for
factual innocence.” Brown v. State, 2013 UT 42, ¶ 40, 308 P.3d 486.
See Wamsley v. State, 2014 UT App 254, ¶ 9, 338 P.3d 266. After a
petition is filed, the district court conducts an initial review,
determining whether the allegations in the petition are “merely
relitigating 	facts, 	issues, 	or 	evidence 	presented 	in 	previous
proceedings 	or 	presenting 	issues 	that 	appear 	frivolous 	or
speculative 	on 	their 	face,” 	and 	whether 	“the 	petition 	has
2. Perea also contends that the district court erred in denying his
petition because the police violated his constitutional rights by
suppressing evidence in his favor. But this is not an issue raised
in his factual innocence petition, and we therefore decline to
address it. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443
(“When a party fails to raise and argue an issue in the trial court,
it has failed to preserve the issue, and an appellate court will not
typically 	reach 	that 	issue 	absent 	a 	valid 	exception 	to
preservation.”).

Perea v. State
20170398-CA 	4 	2018 UT App 229
satisfied the requirements of Subsection 2(a)” of the Factual
Innocence 	Statute. 	Utah 	Code 	Ann. 	§ 78B-9-402(2)(b), 	(9)(b)
(LexisNexis Supp. 2018).
¶9 	Subsection 2(a) requires that the petition
contain an assertion of factual innocence under
oath 	by 	the 	petitioner 	and 	shall 	aver, 	with
supporting affidavits or other credible documents,
that:
(i) 	newly discovered material evidence exists
that, 	if 	credible, 	establishes 	that 	the
petitioner is factually innocent;
(ii) 	the 	specific 	evidence 	identified 	by 	the
petitioner 	in 	the 	petition 	establishes
innocence;
(iii) 	the 	material 	evidence 	is 	not 	merely
cumulative of evidence that was known;
(iv) 	the 	material 	evidence 	is 	not 	merely
impeachment evidence; and
(v) 	viewed with all the other evidence, the newly
discovered evidence demonstrates that the
petitioner is factually innocent.
Id. § 78B-9-402(2)(a) (emphasis added).3
3. We note that subsection 3(a) also requires the petition to
contain “an averment that . . . neither the petitioner nor the
petitioner’s counsel knew of the evidence at the time of trial or
sentencing or in time to include the evidence in any previously
(continued…)

Perea v. State
20170398-CA 	5 	2018 UT App 229
¶10 	And “[i]f, upon completion of the initial review, the court
does not dismiss the petition, it shall order the attorney general
to file a response to the petition.” Id. § 78B-9-402(9)(b). After the
State has filed a response, “the court shall order a hearing if it
finds the petition meets the requirements of Subsections (2) and
(3) and finds there is a bona fide and compelling issue of factual
innocence regarding the charges of which the petitioner was
convicted.” Id. § 78B-9-402(9)(c).
¶11 	A bona fide and compelling issue of factual innocence
“means that the newly discovered material evidence presented
by the petitioner, if credible, would clearly establish the factual
innocence of the petitioner.” Id. § 78B-9-401.5(1) (2012). “Factual
innocence” means that the petitioner did not “engage in the
conduct for which [the petitioner] was convicted,” “engage in
conduct relating to any lesser included offenses of the crime for
which [the petitioner] was convicted,” or “commit any other
felony 	arising 	out 	of 	or 	reasonably 	connected 	to 	the 	facts
supporting 	the 	indictment 	or 	information 	upon 	which 	[the
petitioner] was convicted.” Id. § 78B-9-401.5(2).
¶12 	Here, the district court determined upon its initial review
that Perea’s petition included a potentially troubling averment
from Witness, and therefore ordered a response from the State.
The State moved for summary judgment, arguing that Perea’s
petition did not meet the statutory requirements of subsections
(2) and (3) because the newly discovered evidence did not
establish 	Perea’s 	factual 	innocence. 	See 	id. 	§ 78B-9-402(2)‒(3)
(…continued)
filed 	post-trial 	motion 	or 	postconviction 	motion” 	and 	that
neither the petitioner nor his counsel could have discovered the
evidence “through the exercise of reasonable diligence.” Utah
Code 	Ann. 	§ 78B-9-402(3)(a) 	(LexisNexis 	Supp. 	2018). 	Perea
included this averment in his petition.

Perea v. State
20170398-CA 	6 	2018 UT App 229
(Supp. 	2018). 	The 	district 	court 	considered 	whether 	Perea’s
petition raised a bona fide and compelling issue of factual
innocence 	and 	concluded 	that 	Witness’s 	affidavit 	failed 	to
demonstrate that Perea “did not engage in the conduct for which
he was convicted. At most, assuming the statements in the
affidavit are credible, the affidavit merely demonstrates that
[Witness] did not see who shot the gun. She does not indicate
that [Perea] did not shoot the gun or identify somebody else as
the shooter.” For that reason, the court concluded that Witness’s
affidavit did not present a bona fide and compelling issue of
factual innocence.
¶13 	Perea 	contends 	that 	the 	district 	court 	erred 	because
Witness’s 	affidavit, 	“combined 	with 	previously 	available
information, clearly contradicts the State’s claim that [Perea]
fired the fatal bullets—or any bullets at all.”4 “Section 402 directs
the court to view the petitioner’s averment of newly discovered
evidence ‘with all the other evidence’ to determine whether the
petitioner has met the threshold requirements for a hearing.”
Brown v. State, 2013 UT 42, ¶ 46, 308 P.3d 486 (emphasis in
original) (quoting Utah Code Ann. § 78B-9-402(2)(a)(v)). For a
petitioner to be entitled to a hearing, the newly discovered
4. Perea also suggests that improper police conduct led Witness
to falsely testify and that the entire police investigation is now
tainted by this conduct, including the testimony of the other
witnesses. But Perea reads too much into a few lines of Witness’s
affidavit to draw such a conclusion. Moreover, he seeks to use
this assertion in the affidavit as impeachment evidence. And
“‘the material evidence’ supporting a petitioner’s ‘assertion of
factual innocence’ cannot be ‘merely impeachment evidence.’”
Wamsley v. State, 2014 UT App 254, ¶ 24, 338 P.3d 266 (quoting
Utah Code Ann. § 78B-9-402(2)(a)(iv) (LexisNexis Supp. 2013)).
Therefore, 	Perea 	would 	not 	be 	able 	to 	challenge 	the 	trial
testimony of other witnesses to assert his factual innocence.

Perea v. State
20170398-CA 	7 	2018 UT App 229
evidence must demonstrate factual innocence in light of all the
other evidence.
¶14 	Witness’s 	affidavit, 	even 	when 	viewed 	in 	its 	most
favorable 	light, 	does 	not 	demonstrate 	a 	bona 	fide 	and
compelling 	issue 	of 	factual 	innocence. 	Even 	with 	Witness
recanting, all other evidence still points to Perea firing the gun
from the vehicle into the crowd—the conduct for which he was
convicted. Witness states that she did not see Perea “with the
gun that evening” and “clearly did not see the face of the shooter
in the vehicle.” This does not contradict the State’s evidence
presented at trial that Perea was the one who fired the shots
from the vehicle, including Perea’s own confession and the
testimony of other witnesses who were in the vehicle that Perea
fired the gun from the vehicle. Because the newly discovered
evidence does not meet section 402’s statutory requirements, the
district court did not err in dismissing Perea’s petition without a
hearing.
¶15 	Perea 	also 	contends 	that 	the 	district 	court 	erred 	in
granting the State’s motion for summary judgment. “The court
shall grant summary judgment if the moving party shows that
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Utah R.
Civ. P. 56(a).5 And we affirm a “grant of summary judgment
only if there are no disputed issues of material fact and, with the
facts and all reasonable inferences viewed in the light most
favorable to the nonmoving party, the moving party is entitled
to 	judgment 	as 	a 	matter 	of 	law.” 	Jensen 	ex 	rel. 	Jensen 	v.
Cunningham, 2011 UT 17, ¶ 36, 250 P.3d 465. Because Perea’s
5. Actions brought pursuant to the Post-Conviction Remedies
Act are civil in nature and “governed by the rules of civil
procedure.” Utah Code Ann. § 78B-9-102(1)(a) (LexisNexis Supp.
2018).

Perea v. State
20170398-CA 	8 	2018 UT App 229
petition did not demonstrate a bona fide and compelling issue of
factual innocence, and consequently no genuine dispute of any
material 	fact 	remained, 	the 	district 	court 	properly 	granted
summary judgment to the State. We therefore conclude that the
district court did not err in granting the State’s motion for
summary judgment and dismissing Perea’s petition.
¶16 	Affirmed.