P. v. Perez

Filed 6/29/20 P. v. Perez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
EMILIANO PEREZ, JR.,
Defendant and Appellant.
G057539
(Super. Ct. No. 07NF3732)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Tanya Dellaca, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez
and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Emiliano Perez, Jr., appeals from the lower court’s denial of his
petition for resentencing under Penal Code section 1170.95 (undesignated statutory
references are to the Penal Code). He contends the court prejudicially erred by failing to
appoint him counsel before summarily denying the petition on the grounds he was
statutorily ineligible for section 1170.95 relief. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a 2011 plea bargain, defendant pleaded guilty to two counts of second
degree murder (§ 187, subd. (a)), four counts of deliberate and premeditated attempted
murder (§§ 664 & 187), and one count of active participation in a criminal street gang
(§ 186.22, subd. (a)). He was sentenced to two consecutive indeterminate terms of 15
years to life for the murder counts. He received four concurrent seven-year determinate
sentences for the attempted murder counts, as well as a concurrent two-year term for the
criminal street gang charge. All other charges, a special circumstance allegation,
enhancements for personal firearm use resulting in death or great bodily injury, and all
other enhancements and allegations were dismissed on the People’s motion.
As the factual basis for his plea, defendant stated: “In Orange County,
California, on 8/11/07 I willfully and unlawfully attempted to kill J. Vasquez, V. Villa, C.
Hernandez, J. Martinez by firing a gun @ them w/the specific intent to kill. On 8/25/07 I
willfully and unlawfully killed J. Garcia & A. Barraza with malice aforethought but
without premeditation & deliberation. I did all these crimes for the benefit of and with
the specific intent to promote Citron St. a criminal street gang, which I was an active
participant during these crimes.” (Italics added.)
In 2019, defendant filed a petition under newly enacted section 1170.95,
seeking resentencing on his murder convictions. The lower court summarily denied the
petition by minute order without appointing counsel for defendant. The minute order
states: “The petition does not set forth a prima facie case for relief under the statute. A
review of court records indicates defendant is not eligible for relief under the statute

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because the defendant does not stand convicted of murder or defendant’s murder
conviction(s) is not based on felony-murder or on a natural and probable consequences
theory of vicarious liability for aiders and abettors.” The record does not specify what
“court records” were reviewed.
Defendant appeals, arguing the lower court prejudicially erred by
summarily denying his petition for resentencing without first appointing him counsel. He
does not dispute that he is statutorily ineligible for section 1170.95 relief.
DISCUSSION
1. Legal Background
Effective January 1, 2019, Senate Bill 1437 (SB 1437) 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 major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) It accomplished this by amending section 188, which defines
malice, to add a requirement that all principals to a murder must act with express or
implied malice to be convicted of that crime. (Id., § 2, subd. (a).) It also amended
section 189, which defines the degrees of murder, by adding a condition to the felony-
murder rule. Henceforth, in order to be convicted of felony murder, a defendant who was
neither the actual killer nor a direct aider and abettor to the murder must have been a
major participant in the underlying felony who acted with reckless indifference to human
life. (Id., § 3, subd. (d)(3); see People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
SB 1437 also established a procedure for the defendants previously
convicted of murder to seek resentencing if they believe they could not currently be
convicted of that crime under the amended provisions of sections 188 and 189. (SB
1437, § 4 [enacting newly codified section 1170.95].) Thus, section 1170.95 allows those
“convicted of felony murder or murder under a natural and probable consequences

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theory . . . [to] file a petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on any remaining
counts . . . .” (§ 1170.95, subd. (a).) The section goes on to describe what must be
included in a petition for resentencing, and sets forth the procedure to be followed by a
trial court upon receiving such a petition.
In its initial review of whether a petitioner has made a threshold showing
that he or she falls within the provisions of section 1170.95, the court examines whether
the petitioner has stated eligibility for relief. A petitioner must allege: (1) an accusatory
pleading was filed against him or her allowing prosecution under the felony-murder rule
or the natural and probable consequences doctrine (§ 1170.95, subd. (a)(1)); (2) he or she
was convicted of first or second degree murder following a trial, or pleaded guilty to first
or second degree murder in lieu of a trial at which he could have been so convicted (id.,
subd. (a)(2)); and (3) he or she could not today be convicted of first or second degree
murder because of the 2019 amendments to sections 188 and 189 (id., subd. (a)(3)).
If the petitioner meets this facial showing of eligibility, the court must
appoint counsel and entertain briefing from the prosecutor and appointed counsel. If,
after briefing, the petitioner has established a prima facie case he or she is entitled to
relief, i.e., if a showing regarding his or her eligibility has been made, the court must
issue an order to show cause, and thereafter hold a full hearing to determine whether
petitioner is entitled to relief. (§ 1170.95, subds. (c) & (d)(1).)
At that hearing, the prosecutor bears the burden of proof, and must “prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95,
subd. (d)(3).) “If the prosecutor does not stipulate to vacating the conviction and
resentencing the petitioner, the People have the opportunity to present new and additional
evidence to demonstrate the petitioner is not entitled to resentencing. [Citation.] The
petitioner also has the opportunity to present new or additional evidence in support of the
resentencing request. [Citation.]” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1100,

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review granted Nov. 13, 2019, S258175.) “If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges.” (§ 1170.95, subd. (d)(3).)
We apply a de novo standard of review to a lower court’s denial of a
defendant’s section 1170.95 petition. (People v. Verdugo (2020) 44 Cal.App.5th 320,
328, fn. 8 (Verdugo), review granted Mar. 18, 2020, S260493; cf. People v. Blackburn
(2015) 61 Cal.4th 1113, 1123 [statutory construction questions are reviewed de novo].)
2. Analysis and Application
Defendant’s petition consisted of a boilerplate form, with checkboxes and
blank spaces filled in and signed by defendant under penalty of perjury. The form was
presumably designed to comply with the procedural prerequisites of section 1170.95.
Following the relevant statutory language, defendant declared: (1) an accusatory
pleading 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
had pleaded guilty to murder in lieu of trial because he believed he could have been
convicted of murder under one of those theories; and (3) he could not now be convicted
of felony murder or murder under the natural and probable consequences doctrine due to
the 2019 changes made to sections 188 and 189. (See § 1170.95, subd. (a)(1), (2), &
(3).)1 However, as discussed below, these declarations are all patently false.
“[B]ecause a petitioner is not eligible for relief under section 1170.95
unless he or she was convicted of first or second degree murder based on a charging
document that permitted the prosecution to proceed under a theory of felony murder or
1 The petition was also properly filed in the superior court, and served on the
prosecuting attorney and the county public defender. It correctly stated the court case
number and year of conviction, and in it defendant requested appointment of counsel.
(§ 1170.95, subd. (b)(A), (B), & (C).)

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murder under the natural and probable consequences doctrine [citation], the court must at
least examine the complaint, information or indictment filed against the petitioner; the
verdict form or factual basis documentation for a negotiated plea; and the abstract of
judgment.” (Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) “The record of conviction
might also include other information that establishes the petitioner is ineligible for relief
as a matter of law because he or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188 and 189 ([citation]—for
example, a petitioner who admitted being the actual killer as part of a guilty plea or who
was found to have personally and intentionally discharged a firearm causing great bodily
injury or death in a single victim homicide within the meaning of section 12022.53,
subdivision (d)).” (Id. at p. 330.)
Thus, at this threshold stage of section 1170.95 inquiry, if the record of
conviction before the court shows a petitioner is ineligible for relief under that section as
a matter of law, it may summarily deny the petition. (See People v. Cornelius (2020) 44
Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020, S260410 [court may deny
petition without appointing counsel where petitioner is indisputably ineligible for relief as
a direct perpetrator of second degree murder]; cf. People v. Lewis (2020) 43 Cal.App.5th
1128 (Lewis), review granted, Mar. 18, 2020, S260598 [record, including prior appellate
court opinion, was sufficient to determine a direct aider and abettor theory of murder
liability and to exclude defendant from 1170.95 eligibility]; People v. Law (2020) 48
Cal.App.5th 811, 825 [defendant ineligible because record showed he was major
participant acting with reckless indifference justifying special circumstance first degree
murder conviction], but compare People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
petition for review filed May 26, 2020, S262011 [record was insufficient to show as a
matter of law defendant a major participant acting with reckless indifference]; see also
Verdugo, supra, 44 Cal.App.5th at p. 333 [aider and abettor acting with express malice is
ineligible]; People v. Lee (2020) 49 Cal.App.5th 254, 263 [provocative act murder

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defendant is ineligible]; People v. Sanchez (2020) 48 Cal.App.5th 914, 917; People v.
Flores (2020) 44 Cal.App.5th 985, 997; People v. Cervantes (2020) 44 Cal.App.5th 884,
887 [voluntary manslaughter defendants are ineligible].)2
This is such a case.
The relevant charging document filed against defendant here was an
information charging him with two counts of first degree special circumstance murder.
Specifically, defendant was charged with “intentionally” killing two persons “with malice
aforethought,” while an active participant in a criminal street gang and to further the
activities of that criminal street gang. (§§ 187, subd. (a) & 190.2, subd. (a)(22), italics
added.) Moreover, the information further alleged defendant “intentionally and
personally discharged a firearm” causing the deaths of both victims. (§ 12022.53, subd.
(d), italics added.) There is nothing in the “information . . . that allowed the prosecution
to proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine.” (§ 1170.95, subd. (a)(1).) Rather, defendant was charged as the
direct perpetrator, who acted with actual malice, and who personally used a firearm to kill
his two victims.
Similarly, the 2019 changes to sections 188 and 189 do not affect whether a
defendant may be convicted of murder when he or she is the direct perpetrator of the
crime and who acted with malice. (See SB 1437, § 1, subd. (g) [“a conviction for murder
2 Summary denials based only on the record before the court, and without
appointment of counsel, are found in other postconviction proceedings. (See, e.g., People
v. Shipman (1965) 62 Cal.2d 226, 232 [appointment of counsel not required in coram
nobis proceedings where, after examination of allegations “in light of any matter of
record,” there are no “adequate factual allegations stating a prima facie case”]; see also
People v. Drayton (2020) 47 Cal.App.5th 965, 977 [“with respect to the prima facie
showing under section 1170.95(c), habeas corpus procedures provide a suitable
analogy”]; People v. Duvall (1995) 9 Cal.4th 464, 475 [on habeas corpus, if no prima
facie case for relief stated, court should summarily deny the petition; if court finds factual
allegations, taken as true, do establish a prima facie case for relief, the court should
appoint counsel and issue an OSC].)

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requires that a person act with malice aforethought,” and “[a] person’s culpability for
murder must be premised upon that person’s own actions and subjective mens rea”].) In
other words, defendant was not someone who today “could not be convicted
of . . . murder because of changes to Section 188 or 189. . . .” (§ 1170.95, subd. (a)(3).)
It is true defendant was able to plea bargain down to two second degree
murder convictions, and the personal firearm use allegation was stricken, but for purposes
of section 1170.95 his ineligibility remains unaffected. In his guilty plea, defendant
admitted he committed both murders “with malice aforethought,” thereby obviating both
a felony-murder theory and the natural and probable consequences doctrine. His plea
bargain notwithstanding, defendant was convicted of second degree murder as a principal
and based on malice; “the changes to sections 188 and 189 are inapplicable.” (Cornelius,
supra, 44 Cal.App.5th at p. 58.)
Section 1170.95 does not encompass defendant’s murder convictions and
defendant does not argue to the contrary on appeal. Instead, he contends the lower court
should have appointed him counsel before ruling him ineligible and denying his petition
for resentencing. Not so.
“[T]he trial court’s duty to appoint counsel does not arise unless and until
the court makes the threshold determination that petitioner ‘falls within the provisions’ of
the statute.” (Lewis, supra, 43 Cal.App.5th at p. 1140.) Simply put, when it appears
from the record before the court that a petitioner is ineligible for relief as a matter of law,
the trial court is not required to appoint counsel before summarily denying the petition.
(Id. at pp. 1139-1140; accord People v. Tarkington (June 2, 2020, B296331)
__Cal.App.5th__, [2020 Cal.App. LEXIS 481] (slip opn. at p. *6); Verdugo, supra, 44
Cal.App.5th at pp. 332-333 [same]; Cornelius, supra, 44 Cal.App.5th at p. 58 [same]; see
also; People v. Edwards (2020) 48 Cal.App.5th 666, 674 (Edwards) [defendant “could
not meet the statutory prerequisites for even filing a section 1170.95 petition because he
was not charged or convicted of second degree felony murder or murder under the natural

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or probable consequences doctrine directed at accomplice liability”].) Here, defendant
was ineligible as a matter of law and was therefore not entitled to counsel before the court
summarily denied his petition for resentencing.
Despite his statutory ineligibility, defendant maintains the court’s failure to
appoint counsel still requires “automatic reversal,” because the court’s summary denial
was analogous to a “total deprivation of the right to counsel at trial,” and likens it to a
“pervasive Sixth Amendment violation,” citing Arizona v. Fulminante (1991) 499 U.S.
279.3 The analogies are flawed, however, because defendant has no constitutional right
to counsel at a section 1170.95 proceeding where he is seeking resentencing on a
conviction long since final. (See Pennsylvania v. Finley (1987) 481 U.S. 551, 555
[prisoners have no constitutional right to counsel “when mounting collateral attacks upon
their convictions”].)
SB 1437’s statutory-based retroactive relief, as embodied in section
1170.95, reflects an act of lenity by the Legislature and is not subject to Sixth
Amendment analysis. (Cf. People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [no
right to jury trial in proceedings under SB 1437 because its retroactive relief is “an act of
lenity that does not implicate defendants’ Sixth Amendment rights”]; see also Dillon v.
United States (2010) 560 U.S. 817, 828-829 [sentence modification proceedings based on
retroactive amendments to federal sentencing guidelines were “congressional act[s] of
lenity,” and do not implicate the Sixth Amendment’s jury trial rights].) Similarly,
proceedings under a statutory enactment that entitle an inmate to petition for resentencing
to reduce, recall, or vacate a sentence do not implicate the Sixth Amendment’s jury trial
rights, because a factual finding that an inmate is not eligible for resentencing “does not
3 Arizona v. Fulminante was actually a Fifth Amendment case, involving a
coerced confession, and had nothing to do with the Sixth Amendment right to counsel.
(Fulminante, supra, 499 U.S. at p. 288.)

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increase the petitioner’s sentence; it simply leaves the original sentence intact.” (People
v. Perez (2018) 4 Cal.5th 1055, 1064.)
Defendant’s resentencing petition may have nominally tracked the statutory
language of section 1170.95, but his factual representations were false. Defendant does
not dispute that he was charged as a direct perpetrator of two murders who personally
used a firearm in their commission. Nor does he deny he was convicted of two counts of
murder with malice aforethought; indeed, his guilty plea shows exactly that. Lastly, he
does not argue the prosecution in his case was ever brought under a felony-murder theory
or under the natural and probable consequences doctrine. The lower court conducted an
appropriate screening of and properly denied defendant’s petition on the grounds he was
statutorily ineligible for section 1170.95 relief. There was no error.
3. Harmless Error
Even were we to assume section 1170.95 required counsel to have been
appointed here, we find any such error harmless beyond a reasonable doubt. As
discussed, defendant was charged as the direct perpetrator of two counts of special
circumstance first degree murder with a personal firearm use enhancement. In a plea
bargain, defendant admitted he committed two murders with malice aforethought, and not
under a felony-murder theory or the natural and probable consequences doctrine. He was
convicted of second degree murder as a principal based on actual malice. Section
1170.95 does not encompass defendant’s murder convictions, and defendant does not
argue to the contrary on appeal.
Defendant has not offered any explanation for how the assistance of
counsel would have assisted him in avoiding the ineluctable conclusion that he is
ineligible for section 1170.95 relief. Even with the benefit of counsel appointed to
represent him in this appeal, defendant still has not explained how he could meet the
requirements for resentencing under section 1170.95. Simply put, he was—and is—
ineligible for relief under that section as a matter of law based on the facts of this case.

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Under such circumstances, the trial court’s failure to appoint counsel for
defendant after receiving and initially reviewing his petition was harmless beyond a
reasonable doubt. No amount of additional briefing, oral argument, or other process can
change his ineligibility. (See Cornelius, supra, 44 Cal.App.5th at p. 58 [petitioner not
entitled to counsel under section 1170.95 where “he is indisputably ineligible for
relief”].) “[S]ince [defendant] does not fall within the provisions of section 1170.95 as a
matter of law, any . . . purported [procedural] errors were harmless under any standard of
review [citations] and remand would be an idle act [citation]).” (Edwards, supra, 48
Cal.App.5th at p. 675.) Therefore, even assuming there was error, it was not prejudicial.
DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
THOMPSON, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.

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