People v. Perez CA2/1 ( 2022 )

Filed 8/23/22 P. v. Perez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B314137
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072383)
v.
JORGE PEREZ
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kathleen Blanchard, Judge. Affirmed in
part and reversed in part.
Leslie Conrad, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael R. Johnsen and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
Jurors convicted defendant Jorge Perez and his confederate
Jovanny Gonzalez of the murder of Armando Reyes and the
attempted murder of Reyes’s girlfriend S.B. S.B. drove Reyes to
the scene of the shooting, and Perez drove Gonzalez. Gonzalez
shot Reyes as he stepped out of S.B.’s car. Perez and Gonzalez
were upset with Reyes because Reyes had insulted their gang. In
a prior appeal we reversed Perez’s conviction for the attempted
murder of S.B. and remanded for resentencing. The People
elected not to retry defendant on the attempted murder charge,
and the trial court resentenced him on convictions for murder
and shooting at an occupied vehicle. For both counts, the new
sentence included gang and gang-related firearm enhancements.
After defendant’s resentencing, the Legislature amended
the law concerning the gang and gang-related firearm
enhancements. On appeal, defendant argues that because his
conviction is not yet final, he is entitled to the ameliorative
changes in the law. The People agree that remand is necessary
for a new trial on the enhancements. We vacate the gang and
gang-related firearm enhancements. In all other respects, we
affirm the judgment of conviction. Upon remand, the People may
retry the gang and gang-related firearm enhancements under the
new statutory requirements.
FACTUAL BACKGROUND1
Reyes was a high-ranking member of the Palmas 13 Kings
gang, an Antelope Valley gang. Omar Olivares also was a
Palmas 13 gang member. Reyes and Olivares often used
1 We previously described the underlying facts (People v.
Gonzalez et al. (Apr. 10, 2020, B296206) [nonpub. opn.]) and
repeat that factual description here.
2
methamphetamine together. In June 2017, S.B. was Reyes’s
girlfriend.
Gonzalez and Perez were members of the Midtown
Criminals, also known as MTC, another gang in the Antelope
Valley. Perez’s moniker was Squeeks (also spelled Squeaks).
1. June 3, 2017
S.B. drove Reyes to pick up Perez. Reyes wanted Perez, a
tattoo artist, to tattoo him. Olivares was in the backseat of S.B.’s
car. After they picked up Perez, S.B. did not see Perez from the
driver seat because Reyes was aggressive with her when she tried
to look at Perez.
Before they reached a location where Perez could tattoo
Reyes, Reyes and Olivares argued. The argument concerned
whether Olivares stole Reyes’s stash of methamphetamine.
Reyes told S.B. to stop the car to drop off Olivares. S.B. refused
until the group reached a gas station in Rosamond, where she
stopped the car. Reyes told Olivares to exit the car. Olivares
exited, and Perez followed even though Reyes had not told Perez
to leave the car. Perez was “irritated” that Reyes left him and
Olivares at the gas station.
2. Reyes and Perez’s June 4, 2017 Facebook messages
On June 4, 2017, Reyes and Perez had the following
colloquy on Facebook:2
Reyes: “I need my money or tatt or I can make things
really bad.”
2 By quoting these messages, we do not condone the vulgar
and derogatory language in the messages.
3
Perez: “After u doped me off in Rosamond? . . . now u
wanna treated me?”
Reyes: “I do what I want when I want.”
Perez: “Not around my parts.”
Reyes: “. . . Foo I’m a dangerous azz enemie to have.”
The colloquy continued:
Perez: “Look foo u can miss me with the fake politics
bullshit . . . I ain’t with that shit . . . wanna treated me with the
light? . . . . go ahead I dare u.”
Reyes: “Fuck u then and mantecas ol turn down ass foos
that’s why u got dissed and didn’t do shit.”
Reyes repeated, “Fuck mantecas” and Perez wrote, “Fuckin
p.c.” Perez testified mantecas meant lard. Eventually Reyes
said, “Fuck ur dead homies.” Perez testified that Reyes’s
comment “[f]uck your dead homies” was an insult.
During their conversation, Perez told Reyes, “Come over
and stop wolfing.” Perez testified that meant “[s]top messaging
me talking shit.” Perez told Reyes, “U ain’t bout shit but running
ur mouth,” and instructed him, “COME OVER BITCH.”
Then the following colloquy occurred:
Perez: “I fuckin dare u.”
Reyes: “U ain’t bout that.”
Peres: “Come and see.”
Reyes: “I woulda smoked u.”
Perez told Reyes, “Don’t be a lame,” and Reyes said, “Like I
said fuckkkkk mtc” and repeated multiple times “Fuck mtc.”
Reyes also repeated the insult “fuck ur dead homies.”
Perez showed his conversation with Reyes to Perez’s fellow
MTC gang members with monikers Menace and Blue. All three
were upset about Reyes’s insults. Later Perez showed the
4
messages to “Mousey,” another MTC member who wanted to
fight Reyes because of the messages. Perez asked Reyes his
location so that Mousey could fight Reyes. Perez testified that he
sent the Facebook messages to Reyes because he did not want to
appear weak in front of his gang members.
Reyes’s last message to Perez said, “I’m pulling up.” The
only reference in the texts to S.B., was Perez’s comment, “Tell ur
fat ugly bitch . . . I said thanks for the ride.”
3. June 4, 2017 shooting of Reyes
Reyes went to a tattoo shop and obtained his tattoo from
someone other than Perez. Reyes also smoked
methamphetamine. S.B. and Reyes went to Reyes’s brother’s
house, where they drank several drinks. S.B. overheard Reyes
tell his brother that he would handle something one-on-one. S.B.
did not know what Reyes intended to handle one-on-one. Shortly
afterwards Gonzalez shot Reyes.
4. S.B.’s description of the shooting
As S.B. was driving Reyes home, Reyes spotted a white
Honda. The car was stopped in the middle of the street. S.B. and
Reyes approached the stopped car, and the driver sped off. The
white Honda had a dealer license plate.
Reyes told S.B. to follow the white car. S.B. did not want to
follow the white Honda, but Reyes insisted that she follow it.
S.B. made a U-turn and followed the white car. The white Honda
stopped. As S.B. pulled up alongside the white Honda, Reyes
exchanged words with its occupants. Reyes was positioned closer
to the white Honda than S.B.
Reyes announced his gang name. Someone in the white
Honda said MTC. Reyes put one foot out of the car, and it looked
5
like he was getting out. Then he exited S.B.’s car and said he
wanted to fight. Then S.B. heard gunshots.3 The gunshots
occurred seconds after Reyes exited S.B.’s car. No gunshot hit
S.B.
Either Perez or Gonzalez said, “[T]hat’s what you get.”
Reyes jumped into the car and told S.B. to get down and drive
away. Reyes said, “Go, leave,” after the gunshots. S.B. drove to
the next street where Reyes stopped breathing. S.B. planned to
take Reyes to the hospital “but then he stopped breathing” and
she “knew [she] couldn’t make it.” People helped Reyes out of the
car and a nurse in the neighborhood tried to revive him, but
according to S.B., “[H]e was already gone.”
S.B. asked someone to call 911. In the 911 call, S.B.
described “guys pulled up to the car, and they just started
shooting him.” She indicated that the shooter was in a white
Honda Accord. S.B. stated that Reyes was no longer breathing.
When the paramedics arrived, they could not help Reyes.
Later, S.B. observed bullet holes in her car. S.B.’s car
sustained a bullet to the front passenger door jam, below the
locking mechanism. A bullet traveled from inside out through
S.B.’s windshield near the driver seat.
When interviewed after the shooting, S.B. said that Reyes
exited her car; S.B. heard five to seven shots; then Reyes “fell
back into her vehicle.” The prosecutor clarified that S.B. said
Reyes fell into the car after S.B. heard five to seven gunshots.
Based on photographic evidence, Deputy Sheriff Steven
Blagg testified that a bullet struck the door jam in S.B.’s vehicle.
3 S.B. also testified she did not hear the gunshots but only
felt them. She testified, “It just felt like wind. Like quick wind
going past my face.”
6
A bullet also hit the left-lower corner of the windshield. The
bullet traveled from inside the vehicle through the windshield.
Bragg testified that the trajectory of the bullet was consistent
with S.B.’s testimony that she felt a bullet “whiz from behind
her.”
5. Gonzalez’s statement to an informant
Prior to trial, Gonzalez spoke with an informant and his
recorded statements were played for jurors. Gonzalez said that
police were questioning him on murder and probably found his
.380 (a type of handgun). Later he said he did not know if police
found the .380. Gonzalez said he was from Midtown Criminals
and his moniker was Magic. Gonzalez said that he owned a 2017
Honda Accord. Gonzalez said that Squeeks (Perez) had been
“busted already.”
Gonzalez said he and Squeeks “gonna go down.” Gonzalez
acknowledged “we smoked him.” Gonzalez indicated he was the
shooter. Gonzalez said, “[T]hey fucked with the wrong person.”
Gonzalez said, “[M]e and him knew this was gonna happen.
But the thing is that the—the—they have to have—what do they
have, homie? Fool, this case was cold. Cold.”
Gonzalez was uncertain whether officers “found the .380.”
Gonzalez explained he “didn’t get rid of it. [He] gave it to [his]
homie. ‘Cause it was [his] homie’s.”
Gonzalez said there was only one witness—“a girl, but she
was on dope.” Gonzalez said that the girl did not know his name.
The informant said, “You should have got rid of her, homie.”
Gonzalez responded, “No, I couldn’t at the time. The bullets were
empty.” Gonzalez repeated, “[T]he burner was empty.” The
agent replied, “Seriously? Was she there, though? Fuck.”
Gonzalez responded, “I had glasses on and a hat.” Gonzalez
7
stated, “[I]f anything, they would have got him because he’s the
only link. The only link I have to this case is him.” Gonzalez
did not specifically identify his link.
Gonzalez explained that he disguised his car as he “didn’t
even have no license plate on it.” After the shooting he had the
windows tinted. He also washed the car three times.
In an apparent reference to the text messages, Gonzalez
indicated that someone “had dissed my dead homie.” Then
Gonzalez said, “Hey, let me borrow the burner.” “I hop out the
backseat. Hop the backseat, put—put—put six in that nigga, and
he died.”4 Gonzalez said he got out of the car and “[l]it him up.”
Gonzalez explained, “I was in the backseat. I was gonna hop out
the back because I had—I had the burner in—in my
daughter’s . . . car seat.” Gonzalez repeated that he was wearing
a hat and “[s]he’d never seen me before, and she was on dope.”
6. Perez and his sister present alibi evidence
In his defense, both Perez and his sister testified that Perez
was babysitting for his sister’s children at the time Reyes was
killed. Perez did not reveal that he was babysitting when
Deputy Sheriff Blagg first questioned Perez about the killing.
7. Gang evidence and instructions
Gang detective Giovanni Lamignano testified for the
prosecution. He testified the primary activities of the MTC gang
included vandalism, graffiti, assaults, assaults with deadly
weapons, attempted murder, murder, and robbery. Perez
committed second degree robberies in 2010 and 2012.
4As previously noted, we do not condone such derogatory
language.
8
Detective Lamignano testified that MTC had over 100 members.
Detective Lamignano opined that defendant was a member of
MTC.
PROCEDURAL BACKGROUND
The amended information contained counts 1, 2, 3, 5, 7, 8,
and 9. In count 1, the People charged both defendants with the
murder of Reyes. In count 2, the People charged the defendants
with the attempted premediated murder of S.B. The People
further charged defendants with shooting at an occupied vehicle.
Firearm and gang enhancements were alleged with respect to all
the above offenses. The People alleged one prior strike offense
against Perez. The People further alleged that Perez suffered one
prior offense within the meaning of Penal Code 5 section 667.5.
The trial court instructed the jury on the meaning of
criminal street gang and primary activities under the old law.
The court instructed the jury that it could consider the charged
crimes in determining the primary activities of the gang and that
it could consider crimes occurring after September 26, 1988.
With respect to the firearm enhancement, the court instructed
the jury that it had to determine whether Gonzalez personally
used a firearm and whether a principal intentionally discharged
a firearm and caused great bodily injury or death to a person
other than an accomplice.
The jury found Perez guilty of murder and found true the
gang and firearm enhancements within the meaning of
section 12022.53, subdivisions (d) and (e)(1). The jury further
found Perez guilty of the attempted murder of S.B. and the gang
5 Undesignated statutory citations are to the Penal Code.
9
enhancement to be true. In contrast, the jury found not true the
allegation that the attempted murder was committed willfully
and with premeditation and deliberation. Finally, the jury
convicted Perez of shooting at an occupied vehicle and found true
the gang and firearm enhancements within the meaning of
section 12022.53, subdivisions (d) and (e)(1).
Perez admitted that he suffered two prior convictions for
robbery and that they constituted prior strike convictions. He
also admitted that one fell within the ambit of section 667.5,
subdivision (a) and subdivision (b).
The trial court initially sentenced Perez to an
indeterminate term of 100 years to life and a 19-year determinate
term. As noted, this court reversed in part and remanded for
resentencing. Upon resentencing, the trial court sentenced Perez
to an aggregate term of 80 years to life on count 1 (murder). The
count-1 sentence included 25 years to life for the section 186.22,
subdivision (b) gang enhancement and the section 12022.53,
subdivision (d) and (e) firearm enhancement. The court
sentenced defendant to a 14-year term on count 9 (shooting at
an inhabited vehicle) and added 25 years to life pursuant to
section 186.22, subdivision (b) and 12022.53, subdivisions (d)
and (e). The court stayed the sentence on count 9 pursuant to
section 654.
DISCUSSION
For the following reasons, we agree with the parties that
we must remand the case for retrial of the gang enhancement
and the related firearm enhancement.
“Section 186.22 provides for enhanced punishment when a
defendant is convicted of an enumerated felony committed ‘for
the benefit of, at the direction of, or in association with a criminal
10
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.’ [Citation.]” (People v.
Delgado (2022) 74 Cal.App.5th 1067, 1085 (Delgado); § 186.22,
subd. (b)(1).) At the time of defendant’s trial, the prosecution
could establish a gang enhancement by showing that the alleged
gang had engaged in a “pattern of criminal gang activity,” which,
at the time of trial, was defined as “commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more [enumerated]
offenses, provided at least one of these offenses occurred after the
effective date of this [Act] and the last of those offenses occurred
within three years after a prior offense, and the offenses were
committed on separate occasions, or by two or more persons . . . .”
(Former § 186.22, subd. (e).) “The offenses comprising a pattern
of criminal gang activity are referred to as predicate offenses.”
(People v. Valencia (2021) 11 Cal.5th 818, 829.)
Effective January 2022, the Legislature enacted Assembly
Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699, § 3)
(Assembly Bill 333), which “impose[d] new substantive and
procedural requirements for gang allegations.” (People v. Sek
(2022) 74 Cal.App.5th 657, 665 (Sek).) Assembly Bill 333
amended the definition of “pattern of criminal gang activity”
provided in section 186.22, subdivision (e), and modified the
requisite proof of predicate offenses, including that the currently
charged offense may not be used to establish such a pattern.
(§ 186.22, subd. (e)(1), (2).) In addition, newly-added
subdivision (g) of section 186.22 provides that the language to
“benefit, promote, further, or assist” a criminal street gang
“means to provide a common benefit” to members that is likewise
“more than reputational.” (See § 186.22, subd. (g).)
11
The firearm enhancement under section 12022.53,
subdivision (d) applies only to the person who personally and
intentionally discharged a firearm. Subdivision (e)(1) makes the
firearm enhancement applicable to any principal who violated
section 186.22, subdivision (b), i.e., the gang enhancement.
(People v. Lopez (2021) 73 Cal.App.5th 327, 347 (Lopez).) Where
the firearm enhancement is dependent on the finding that the
principal was “ ‘convicted of a felony committed for the benefit of,
at the direction of, or in association with any criminal street
gang, with the specific intent to promote, further, or assist in any
criminal conduct by gang members’ as set forth in section 186.22,
subdivision (b) (see § 12022.53, subd. (e)(1)(A)), the changes to
section 186.22 made by Assembly Bill 333 require that the true
findings on these enhancements, too, be vacated and the matter
remanded to the trial court.” (Lopez, at pp. 347–348.)
Turning to this case, as the parties agree, the new
requirement that the benefit to the gang be more than
reputational applies retroactively to nonfinal cases. (See
Delgado, supra, 74 Cal.App.5th at p. 1087; Lopez, supra,
73 Cal.App.5th at pp. 343–344; Sek, supra, 74 Cal.App.5th at
pp. 666–667.) Here, the prosecution did not present evidence
that the benefit to the gang was more than reputational. (See
§ 186.22, subd. (g).) Because the People did not prove the gang
enhancement under the requirements of the new law, both the
gang enhancement and the section 12022.53, subdivision (e)
firearm enhancement, which depends on proof of the gang
enhancement, must be vacated.6
6Because we reverse the gang and firearm enhancements
we need not decide whether Assembly Bill 333’s other
amendments to section 186.22 apply retroactively. Assembly
12
We remand the case to the trial court to provide the People
an opportunity to meet Assembly Bill 333’s new requirements.
(Sek, supra, 74 Cal.App.5th at p. 669.)
DISPOSITION
On both counts 1 (murder) and 9 (shooting at an occupied
vehicle), the Penal Code section 186.22 and section 12022.53,
subdivision (d) and (e)(1) enhancements are vacated. In all other
respects the judgment is affirmed. On remand, the People may
elect to retry defendant on the gang and related firearm
enhancements.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. KELLEY, J.*
Bill 333 also added section 1109, which requires, at a defendant’s
request, the trial court bifurcate the gang participation charges
and enhancements from other counts that do not otherwise
require gang evidence as an element of the crime. Section 1109
is not at issue in the current appeal, and we express no opinion
as to its retroactivity.
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
13