People v. Perez CA2/8 ( 2022 )

Filed 4/14/22 P. v. Perez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B314934
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA350813
v.
RONALD RICHARD PEREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
Conforming to People v. Wende (1979) 25 Cal.3d 436(Wende), Ronald Richard Perez’s counsel filed an opening brief
containing a statement of facts but raising no issues. Counsel
asks this court to review the record independently and to
determine whether any arguable issues exist on appeal. Perez
submitted a supplemental brief. We have reviewed the
supplemental brief and the record. No arguable issues exist. We
affirm. Undesignated statutory citations are to the Penal Code.
I
We recount the pertinent factual and procedural
background.
An information charged Perez and two codefendants with
murder. Perez and his codefendants are members of the Temple
Street gang. The three men pulled up in a Volvo next to an
Altima at an intersection. The occupants of the Volvo exchanged
words with the driver of the Altima, Jimmy Pineda. The
occupants of the Volvo then pulled out two guns and shot several
bullets at the Altima. The bullets hit and killed Pineda, a
member of rival gang 18th Street. The Volvo sped off, but police
captured the three men and recovered two guns from their flight
path.
Police found Perez’s DNA on one of the recovered guns.
A jury convicted all three men of first degree murder.
(§ 187, subd. (a).) The jury found true that the men committed
the murder for the benefit of a street gang and that a principal
personally discharged a firearm proximately causing death.
(§§ 186.22, subd. (b), 12022.53, subds. (d) & (e).) The trial court
did not instruct the jury on felony murder or the natural and
probable consequences doctrine. The court sentenced each man
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to 50 years to life: 25 years for the murder charge and 25 years
for the gun enhancement.
This court affirmed the judgment on appeal.
After the passage of Senate Bill No. 1437 (2017–2018 Reg.
Sess.), Perez petitioned to be resentenced pursuant to section
1170.95. Upon receiving Perez’s petition, the trial court
appointed counsel for Perez. The prosecutor and counsel for
Perez briefed the issue of whether Perez had made a prima facie
showing for relief under section 1170.95. After holding a hearing
on the issue, the court issued a minute order denying the
petition. The court found Perez could not make a prima facie
showing of eligibility because the court had not instructed the
jury on and neither party argued about felony murder or the
natural and probable consequences doctrine.
Perez appealed. His appointed counsel filed a Wende brief.
Perez filed a supplemental brief.
II
Perez raises three primary arguments. None has merit.
First, he argues the trial court deprived him of due process
by allowing improper gang expert testimony as to his individual
mens rea. This, he claims, relieved the prosecution of its burden
to show his individual premeditation and deliberation beyond a
reasonable doubt and was prejudicial to Perez, who was not one
of the shooters.
Second, Perez argues ineffective assistance from counsel
denied him a fair trial. Perez bases this argument on counsel’s
failure to enter into evidence a report he claimed would have
shown the officer who testified as the gang expert was biased
against him.
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Each of these arguments improperly attempts to relitigate
issues raised in Perez’s direct appeal. Neither provides a ground
for overturning the court’s denial of Perez’s section 1170.95
petition.
Perez’s final argument is not well-founded. Perez argues
the evidence showed he was not one of the shooters and had been
attending gang intervention classes to turn his life around.
Therefore, Perez asserts, it would be in the interest of justice to
vacate his conviction and resentence him. Neither we nor the
trial court are at liberty to vacate his conviction in the interest of
justice. Only petitioners who meet the statutory criteria may
receive relief. Perez does not meet the criteria.
Perez’s attorney complied with the responsibilities of
counsel. No arguable issues exist. (See Wende, supra, 25 Cal.3d
at p. 441.)
DISPOSITION
We affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J. HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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