P. v. Perez

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Filed 7/21/20 P. v. Perez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONIO PEREZ,
Defendant and Appellant.
B298897
(Los Angeles County
Super. Ct. No. TA112332)
APPEAL from an order of the Superior Court of Los
Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
Janet Uson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Susan Sullivan Pithey, Assistant Attorneys General, Idan Ivri
and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

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In 2011, a jury convicted petitioner and appellant Antonio
Perez of five counts of attempted premeditated murder, along
with other offenses. In 2019, after passage of Senate Bill
No. 1437 (Senate Bill 1437), Perez petitioned for resentencing on
his attempted murder convictions pursuant to Penal Code section
1170.95.1 Finding Perez statutorily ineligible for relief, the trial
court summarily denied his petition. Perez contends that the
trial court’s summary denial, prior to the appointment of counsel,
contravened the requirements of section 1170.95 and violated his
constitutional rights to counsel and due process. We disagree,
and affirm the court’s order.
PROCEDURAL BACKGROUND2
A jury convicted Perez of five counts of attempted
premeditated murder arising out of shootings committed on
different dates in April 2010. The jury additionally convicted
Perez of assault with a firearm, shooting at an occupied vehicle,
and possession of a firearm by a felon, with firearm and criminal
street gang enhancements. The trial court sentenced Perez to
231 years to life in prison. We affirmed Perez’s convictions in an
unpublished opinion issued in January 2014. (People v. Perez
(Jan. 14, 2014, B238303.)3
1 All further undesignated statutory references are to the
Penal Code.
2 Because the facts underlying Perez’s convictions are not
relevant to our resolution of the issues presented on appeal, we
do not detail them here.
3 We take judicial notice of our unpublished opinion. (Evid.
Code, §§ 452, subd. (d), 459.)

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On May 17, 2019, Perez filed a petition for resentencing
pursuant to section 1170.95. Using a preprinted form, he
checked boxes stating that he had been convicted of first or
second degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine, but handwrote in
the margin that he had been convicted of attempted murder. He
also checked a box stating, “I request that this court appoint
counsel for me during this re-sentencing process.”
On May 21, 2019, the trial court denied the petition. Perez
was not present and was not represented by counsel. The court’s
minute order stated, “The petitioner was convicted of 5 counts of
attempted, willful, deliberate and premeditated murder. The
statute only applies to individuals convicted of first or second
degree murder. Petitioner does not qualify for resentencing
under Penal Code section 1170.95.”
Perez timely appealed.
DISCUSSION
Perez contends that the trial court’s summary denial of his
petition, without appointing counsel and considering briefing,
contravened the requirements of section 1170.95, violated his
constitutional rights to counsel and due process, and amounted to
structural error requiring reversal. We disagree. The trial
court’s summary denial was proper because Perez is ineligible for
relief under section 1170.95 as a matter of law.
1. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019, was
enacted to “amend 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 to kill, or was not a

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major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f); People v. Munoz (2019) 39 Cal.App.5th 738, 749, review
granted Nov. 26, 2019, S258234 (Munoz).) “Senate Bill No. 1437
achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending
section 189 to state that a person can only be liable for felony
murder if (1) the ‘person was the actual killer’; (2) the person was
an aider or abettor in the commission of murder in the first
degree; or (3) the ‘person was a major participant in the
underl[y]ing felony and acted with reckless indifference to human
life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
3.)” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review
granted Mar. 18, 2020, S260410; People v. Tarkington (2020)
49 Cal.App.5th 892, 896 (Tarkington); People v. Verdugo (2020)
44 Cal.App.5th 320, 325–326, review granted Mar. 18, 2020,
S260493 (Verdugo).)
Senate Bill 1437 also added section 1170.95, which permits
persons convicted of murder under a felony murder or natural
and probable consequences theory to petition in the sentencing
court for vacation of their convictions and resentencing. Section
1170.95 provides in pertinent part: “A person convicted of felony
murder or murder under a natural and probable consequences
theory” may file a petition “when all of the following conditions
apply: [¶] (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

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could be convicted for first degree or second degree murder. [¶]
(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.” (§ 1170.95, subd. (a).)
2. Perez is statutorily ineligible for relief as a matter of law
because he was not convicted of murder
We and other appellate courts have held that, by its plain
terms, Senate Bill 1437 does not encompass attempted murder.
(Munoz, supra, 39 Cal.App.5th at p. 753, rev.gr.; People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103–1105, review granted Nov. 13,
2019, S258175 (Lopez); People v. Dennis (2020) 47 Cal.App.5th
838, 844.) Our California Supreme Court is currently considering
the question. (Lopez, S258175.) Pending further guidance from
our Supreme Court, we continue to conclude that section 1170.95
provides relief only for persons convicted of murder, not
attempted murder.
When interpreting a statute, we begin by examining the
statute’s words, giving them their usual and ordinary meaning.
(People v. Colbert (2019) 6 Cal.5th 596, 603; People v. Ruiz (2018)
4 Cal.5th 1100, 1105–1106.) If not ambiguous, the plain meaning
controls. (Colbert, at p. 603; Ruiz, at p. 1106.) The plain
language of section 1170.95 speaks only in terms of murder, not
attempted murder. “Subdivision (a) of . . . section 1170.95 states
that a ‘person convicted of felony murder or murder under a
natural and probable consequences theory’ may petition to have
his or her ‘murder conviction vacated’ and for resentencing.
(Italics added.) To establish entitlement to relief, the petitioner
must show he or she was charged with murder; was convicted
of first degree or second degree murder; and could not have been
convicted of first or second degree murder due to changes

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to section 188 or 189 wrought by Senate Bill 1437. (§ 1170.95,
subd. (a).) The remainder of section 1170.95 likewise speaks only
in terms of murder, not attempted murder.” (Munoz, supra,
39 Cal.App.5th at p. 754, rev.gr.) The unambiguous statutory
language thus compels the conclusion that the offense of
attempted murder is excluded from section 1170.95’s ambit.
(Ibid.; Lopez, supra, 38 Cal.App.5th at pp. 1103–1105, rev.gr.;
People v. Dennis, supra, 47 Cal.App.5th at pp. 841 [Senate Bill
1437 “reaches the crime of murder but has no application to
attempted murder”]; People v. Larios (2019) 42 Cal.App.5th 956,
961, 969–970, review granted Feb. 26, 2020, S259983 [§ 1170.95
applies only to murder convictions and excludes attempted
murder convictions]; People v. Medrano (2019) 42 Cal.App.5th
1001, 1008, review granted Mar. 11, 2020, S259948 [“we agree
with Lopez and Munoz that the petitioning procedure added
in section 1170.95 does not apply to attempted murder”];4
cf. People v. Flores (2020) 44 Cal.App.5th 985, 993 [section
1170.95 is inapplicable to voluntary manslaughter convictions;
“[t]hrough its repeated and exclusive references to murder, the
4 In contrast to Lopez and Munoz, Medrano and Larios
concluded that Senate Bill 1437 abrogated the natural and
probable consequences doctrine as to both murder and attempted
murder. (People v. Medrano, supra, 42 Cal.App.5th at p. 1015,
rev.gr.; People v. Larios, supra, 42 Cal.App.5th at p. 968, rev.gr.)
Medrano further held that, as to nonfinal attempted murder
convictions, Senate Bill 1437 applies retroactively on direct
appeal. (Medrano, at pp. 1018–1019.) But even if Medrano and
Larios are correct on these points, they are of no help to Perez;
both cases clearly hold that section 1170.95 relief is unavailable
to a defendant convicted of attempted murder.

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plain language of section 1170.95 limits relief only to qualifying
persons who were convicted of murder”].)
Perez makes a variety of arguments aimed at sidestepping
the import of this statutory language, but none are persuasive.
First, he argues that Senate Bill 1437’s failure to mention
attempted murder is of no consequence because section 664
(which sets forth the punishment for attempted crimes),
references section 189 (which defines degrees of murder), and
section 189 was amended by Senate Bill 1437. He asserts: “Since
section 664 already refers to section 189, which was amended by
[Senate Bill 1437], and which sets forth an exception to the
malice requirement in amended section 188, [Senate Bill] 1437
did not need to specifically refer to its application to attempted
murder.” We do not follow this convoluted logic. Section 664
states that a person convicted of attempted willful, deliberate,
and premeditated murder, “as defined in Section 189,” shall be
punished by life with the possibility of parole. Senate Bill 1437
did not somehow incorporate attempted murder into its scope
simply because section 664 prescribes the punishment for
attempted murder.
Perez also asserts that, because Senate Bill 1437 “altered
the law of murder,” it also “altered the law of attempted murder,”
and the amendments therefore apply to his crimes. In his view,
the correct focus of our inquiry should be the “substantive issue of
whether changes to sections 188 and 189 eliminate[d] the natural
and probable consequences . . . doctrine as a valid theory of
accomplice liability for attempted murder.” But Perez’s judgment
is final. The amendments to sections 188 and 189—even if
construed to prohibit use of the natural and probable
consequences doctrine to prove guilt in an attempted murder

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case—do not retroactively apply to him. (See People v. Larios,
supra, 42 Cal.App.5th at p. 970 [defendant was “categorically
excluded from seeking relief through the section 1170.95
petitioning procedure for his attempted murder convictions,
which have long been final”], rev.gr.) Thus, even if Senate Bill
1437 precludes application of the natural and probable
consequences doctrine in an attempted murder case, this
circumstance has no bearing on the relief offered by section
1170.95, which is expressly limited to murder.
Next, Perez asserts that attempted murder is a lesser
included offense of murder, and remedial legislation impliedly
includes attempts to commit the same crime. It is not clear that
attempted murder is, in fact, a lesser, necessarily included
offense of murder. (See People v. Bailey (2012) 54 Cal.4th 740,
753 [the principle that attempt is a lesser included offense of any
completed crime is “not applicable” where “the attempted offense
includes a particularized intent that goes beyond what is
required by the completed offense”]; People v. Fontenot (2019) 8
Cal.5th 57, 72.)
But even assuming attempted murder is a lesser included
offense of murder, this does not explain away the fact that section
1170.95 expressly limits relief to persons convicted of murder.
Perez cites no persuasive authority for the proposition that we
must read “attempted murder” into section 1170.95 where the
Legislature has plainly omitted it. When the Legislature wishes
a statute to encompass both a completed crime and an attempt, it
knows how to say so. (Munoz, supra, 39 Cal.App.5th at p. 757,
rev.gr.; see, e.g., §§ 12022.53, subd. (a)(18), 12022, subd. (a)(1),
667.5, subd. (c)(12), 1192.7, subd. (c)(22), (39).) We are not at
liberty to add to the statute what the Legislature has omitted.

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(Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545; Munoz, at
pp. 755–756.) People v. King (1993) 5 Cal.4th 59 and People v.
Barrajas (1998) 62 Cal.App.4th 926, cited by Perez, do not assist
him for the reasons we explained at length in Munoz. (Munoz, at
pp. 758–759; Lopez, supra, 38 Cal.App.5th at pp. 1106–1107,
rev.gr.)
Nor does interpreting section 1170.95 to limit relief to
persons convicted of murder lead to absurd results. In Munoz, in
regard to application of Senate Bill 1437 as a whole, we
considered this contention at length and rejected it. (Munoz,
supra, 39 Cal.App.5th at pp. 756–760, rev.gr.) That same
analysis applies here. In a nutshell, it is not clear that
interpreting section 1170.95 to apply to convictions for murder,
but not attempted murder, will always, or typically, result in
longer sentences for the latter. (Munoz, at pp. 757–758.)
Excluding attempted murder from the statute’s reach does not
undermine the Legislature’s goal of making punishment
commensurate with culpability, because the punishment for
attempted murder was already, prior to Senate Bill 1437’s
enactment, less than that imposed for murder. (Id. at p. 758.)
Even if some attempted murderers are subject to longer
sentences than some murderers who obtain relief under section
1170.95, this fact is insufficient to trigger application of the
absurdity exception. (Munoz, at p. 758.) And, contrary to Perez’s
argument, it is clear that the Legislature intended to exclude
persons convicted of attempted murder from the statute’s reach.
(Id. at p. 757.)
Finally, there is no merit to Perez’s contention that
construing section 1170.95 to exclude attempted murder violates
equal protection principles. In Lopez, our colleagues in Division

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Seven considered and rejected the contention that construing
Senate Bill 1437 to encompass only murder violated equal
protection principles; we came to the same conclusion in Munoz.
(Lopez, supra, 38 Cal.App.5th at pp. 1107–1112, rev.gr.; Munoz,
supra, 39 Cal.App.5th at pp. 760–768, rev.gr.) The analyses in
those cases apply equally here. Persons convicted of attempted
murder under the natural and probable consequences doctrine
are not similarly situated to persons convicted of murder, and the
Legislature had a rational basis for excluding attempted murder
from the law’s scope. (Lopez, at pp. 1109–1113; Munoz, at
pp. 760–768.)
3. Because Perez is statutorily ineligible, the trial court did
not err by denying his petition before appointing counsel or
considering briefing
We turn to Perez’s contention that the trial court’s denial of
his petition, without the appointment of counsel and the
opportunity for briefing, violated the mandates of section
1170.95, as well as his Sixth Amendment and due process rights.
Agreeing with Verdugo, we recently held that evaluation of
a section 1170.95 petition requires a multi-step process: an
initial review to determine the petition’s facial sufficiency; a
prebriefing, “first prima facie review” to preliminarily determine
whether the petitioner is statutorily eligible for relief as a matter
of law; and a second, postbriefing prima facie review to determine
whether the petitioner has made a prima facie case that he or she
is entitled to relief. (Tarkington, supra, 49 Cal.App.5th at p. 897;
Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev.gr.; People v.
Torres (2020) 46 Cal.App.5th 1168, 1177–1178, review granted
June 24, 2020, S262011; People v. Drayton (2020) 47 Cal.App.5th
965, 975–976.)

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When conducting the first prima facie review, the court
must determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law,
i.e., whether he or she was convicted of a qualifying crime, based
on a charging document that permitted the prosecution to
proceed under the natural and probable consequences doctrine or
a felony murder theory. (Tarkington, supra, 49 Cal.App.5th at
pp. 897–898; Verdugo, supra, 44 Cal.App.5th at pp. 329–330,
rev.gr.) If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the trial
court may deny the petition without appointing counsel.
(Tarkington, at p. 898; People v. Torres, supra, 46 Cal.App.5th at
p. 1178, rev.gr; Verdugo, at pp. 330, 332–333; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18,
2020, S260598; People v. Cornelius, supra, 44 Cal.App.5th at
p. 58, rev.gr.)5 If, however, the petitioner’s eligibility is not
established as a matter of law, the court must appoint counsel
and permit briefing to determine whether the petitioner has
made a prima facie showing he or she is entitled to relief.
(Verdugo, at p. 330; Tarkington, at p. 898.)
Here, it is undisputed that Perez was convicted of
attempted murder; he so stated in his petition, under penalty of
perjury. As we have explained, section 1170.95 does not provide
5 Our Supreme Court is currently considering when the right
to appointed counsel arises under section 1170.95, subdivision (c),
and whether trial courts may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95. (People v.
Lewis, supra, S260598.)

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relief for persons convicted of attempted murder. Therefore, the
trial court properly denied the petition without appointing
counsel because Perez was ineligible as a matter of law.6
Perez makes several arguments aimed at circumventing
this result. He contends that the plain, mandatory language of
section 1170.95 required only a single prima facie showing, with
counsel to be appointed as soon as he requested it. As we
recently explained in Tarkington, this interpretation of section
1170.95 is incorrect. (Tarkington, supra, 49 Cal.App.5th at
pp. 897–899, 900–904; Verdugo, supra, 44 Cal.App.5th at
pp. 328–329, 332–333, rev.gr.; People v. Drayton, supra, 47
Cal.App.5th at pp. 975–976.) Section 1170.95 requires that the
court “make two distinct determinations on a resentencing
petition: one regarding eligibility (whether the petitioner ‘falls
within the provisions of this section’), and the second regarding
entitlement (whether petitioner has made a prima facie showing
he or she is ‘entitled to relief’). The Legislature’s use of these
different phrases mandates this conclusion. ‘ “Ordinarily, where
the Legislature uses a different word or phrase in one part of a
statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that the
Legislature intended a different meaning.” ’ [Citations.]”
(Tarkington, supra, 49 Cal.App.5th at p. 902.) Contrary to
6 Perez complains that there is no indication the trial court
reviewed the record to determine his ineligibility. But the court
did not have to look far: the petition itself stated Perez was
convicted of attempted murder, and Perez does not dispute the
petition’s accuracy in this respect. For confirmation—if any was
needed—the court had to look no further than this court’s opinion
in Perez’s direct appeal.

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Perez’s contention, the legislative history of the bill supports this
interpretation. (Tarkington, supra, at pp. 902–904; Verdugo, at
pp. 330–331.)
Second, Perez asserts that he had a Sixth Amendment
right to counsel as soon as he requested it because the section
1170.95 petitioning procedure is a critical stage of a criminal
proceeding. This is so, he avers, because of the “adversarial
nature” of the proceedings.
Under both the state and federal constitutions, a defendant
has a right to counsel at all critical stages of the proceedings.
(U.S. Const., 6th Amend.; Cal. Const., art I, § 15; Gardner v.
Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1004–
1005 (Gardner); People v. Doolin (2009) 45 Cal.4th 390, 453;
People v. Rouse (2016) 245 Cal.App.4th 292, 296–297 (Rouse).)
Critical stages are those “events or proceedings in which the
accused is brought in confrontation with the state, where
potential substantial prejudice to the accused’s rights inheres in
the confrontation, and where counsel’s assistance can help to
avoid that prejudice.” (Gardner, at pp. 1004–1005; Rouse, at
p. 297 [“ ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary
nature of the proceeding, combined with the possibility that a
defendant will be prejudiced in some significant way by the
absence of counsel.” ’ ”].) Thus, arraignments, preliminary
hearings, postindictment lineups and interrogations, plea
negotiations, and sentencing are all critical stages. (Gardner, at
p. 1005; Rouse, at p. 297.)
Some examples are instructive. In the context of
Proposition 47, the Safe Neighborhoods and Schools Act, once a
defendant has “passed the eligibility stage” and has been found
eligible for resentencing, he or she has the right to counsel; such

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a proceeding is “akin to a plenary sentencing hearing” and is
therefore a critical stage of the proceeding. (Rouse, supra, 245
Cal.App.4th at p. 299.) Where a threshold eligibility
determination under Proposition 47 turns on a disputed factual
issue—i.e., the value of stolen property—a defendant has a Sixth
Amendment right to be present. (People v. Simms (2018) 23
Cal.App.5th 987, 996–998.) And, in a somewhat different
context, it has been held that a defendant is entitled, as a matter
of fairness, to be present with counsel when, on remand, a trial
court exercises its discretion whether to strike enhancements in
light of statutory amendments. (People v. Rocha (2019) 32
Cal.App.5th 352, 359.) On the other hand, the “threshold issue of
eligibility for relief” under Proposition 47’s resentencing provision
may often be “determined as a matter of law from the
uncontested allegations of the petition or from the record of
conviction,” and a defendant has no Sixth Amendment right to be
personally present to address purely legal questions. (People v.
Simms, at pp. 993, 998.)
Considering the foregoing, it is clear the first, prebriefing
prima facie review under section 1170.95 is not a critical stage of
the proceedings. At that point, the court is simply tasked with
determining whether there is a prima facie showing the
petitioner falls within the provisions of the statute as a matter of
law, making all factual inferences in his or her favor. (Verdugo,
supra, 44 Cal.App.5th at p. 329, rev.gr.; Tarkington, supra, 49
Cal.App.5th at p. 898.) This initial prima facie review is not an
adversarial proceeding. It is not akin to a sentencing hearing.
The court does not rule on disputed issues of fact; it must make
all factual inferences in favor of the petitioner. (Verdugo, at

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p. 329; Tarkington, at p. 898.) And, the court is not called upon
to exercise its discretion in any respect.
Nor do we detect any possibility that counsel’s absence
could prejudice a petitioner in a significant way, or that counsel’s
presence at this stage is necessary to preserve his or her rights.
The instant case provides an apt illustration of why this is so.
The court’s ruling turned on one simple, easily ascertainable, and
undisputed fact: the nature of Perez’s conviction. It is unclear
how appointed counsel could have assisted Perez in any
meaningful way. Perez is ineligible as a matter of law, pure and
simple; counsel’s representation could have done nothing to
change that fact.
Perez asserts that due process requires that an
incarcerated defendant must be afforded the right to counsel in
various instances even where the Sixth Amendment does not.
(People v. Rouse, supra, 245 Cal.App.4th at p. 300.) Perez points
to language in Rouse reiterating that “if a postconviction petition
by an incarcerated defendant ‘attacking the validity of a
judgment states a prima facie case leading to issuance of an order
to show cause, the appointment of counsel is demanded by due
process concerns.’ [Citations.]” (Id. at p. 300, quoting In re Clark
(1993) 5 Cal.4th 750, 780.) But, Perez has not moved past the
initial eligibility stage; he has not made a prima facie case
requiring issuance of an order to show cause. Indeed, if he had,
the terms of section 1170.95 would require appointment of
counsel. Rouse does not otherwise assist Perez; the court
expressly did not reach the question of whether the right to
counsel attached at the eligibility phase of a Proposition 47
proceeding. (Rouse, at p. 301.)

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In sum, the trial court properly denied the petition without
appointing counsel for Perez.7
DISPOSITION
The order denying Perez’s petition for resentencing
pursuant to section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
7 In light of our conclusion, we need not address the People’s
arguments that any error in failing to appoint counsel and
summarily denying the petition was harmless or that Perez was
ineligible on additional grounds.

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LAVIN, J., Concurring :
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, I disagree that a trial
court may summarily deny a statutorily-compliant resentencing
petition under Penal Code section 1170.95 (Section 1170.95)
without appointing counsel.
In his resentencing petition, however, Antonio Perez states
that he had been convicted of attempted murder. And on appeal,
Perez reiterates that he was convicted of attempted murder, not
murder. Because defendants convicted of attempted murder are
ineligible for resentencing under Section 1170.95, I agree that the
court’s order should be affirmed.
LAVIN, J.

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