People v. Perry CA3 ( 2023 )

Filed 8/4/23 P. v. Perry CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C093086
Plaintiff and Respondent, (Super. Ct. No. 08F05978)
v. OPINION ON TRANSFER
JONATHAN LAMAR PERRY,
Defendant and Appellant.
This appeal comes to us styled as a request made pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende).
Defendant Jonathan Lamar Perry “disciplined” his girlfriend’s four-year-old son
with a “whuppin” so severe the child died as a result of the injuries. The injuries
included a laceration of the liver, brain hemorrhages, multiple cerebral bruises in the
front and temporal lobes and the right occipital lobe of his brain, and skull fractures that
caused the child’s brain to swell such that vital structures herniated in an area of the brain
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that controls respiration and his heartbeat suffered, killing the child. (People v. Perry
(Nov. 28, 2012, C068456 [nonpub. opn.].) A jury convicted defendant of second degree
murder (count 1; Pen. Code, § 187, subd. (a); statutory section citations that follow are
found in the Penal Code unless otherwise stated) and assault resulting in the death of a
child under age eight (count 2; § 273ab). The jury also convicted defendant of felony
child abuse as against his girlfriend’s three-year-old son for separate acts of abuse (count
3; § 273a, subd. (a)). (People v. Perry, C068456, supra.) The trial court sentenced him
to a term of 25 years to life for the assault resulting in death of a child, imposed and
stayed under section 654 a 15 year to life sentence for second degree murder, plus a four-
year term for child abuse.
In July 2020, defendant filed a petition for resentencing under section former
1170.95 (former section 1170.95 has since been renumbered section 1172.6, with no
change in text [see stats. 2022, ch. 58, § 10]). The court appointed counsel and the
parties briefed the issue. The court denied the motion, concluding defendant was not
entitled to relief as he was not tried on a felony-murder theory and defendant was the sole
person who inflicted the “fatal blows”; that is, he was the actual killer, not an accomplice
to a different act.
Defendant appealed and appointed counsel for defendant asked this court
independently to review the record pursuant to Wende. Defendant was advised by
counsel of the right to file a supplemental brief. Defendant filed a document that appears
to be an attachment to a parole board hearing and includes descriptions of how his life
would be impacted by commutation of his sentence, apology letters, relapse prevention
plans, and plans for release. The document does not include any legal arguments or
claims asserting the trial court erred in denying his petition.
We dismissed the appeal as abandoned. (People v. Perry (Sep. 22, 2021, C093086
[nonpub. opn.].) The California Supreme Court granted review of the case and later
transferred the matter back to this court with instructions to vacate the dismissal and
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reconsider the case in light of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo).
This court vacated the dismissal.
We have considered the documents defendant filed and find no viable claims of
error in the trial court’s order. Defendant makes no claim there was procedural error and
he does not challenge the trial court’s conclusion he was the actual killer, indeed he
acknowledges that he was. We affirm the trial court’s order.
DISPOSITION
The order denying defendant’s resentencing petition is affirmed.
HULL, Acting P. J.
We concur:
KRAUSE, J.
BOULWARE EURIE, J.
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