Filed 9/11/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY A. PEREZ,

Defendant and Appellant.

B330009

Los Angeles County

Super. Ct. No. BA465253-02

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark S. Arnold, Judge. Affirmed.

Patricia S. Lai, 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, Idan Ivri and Yun K. Lee, Deputy Attorneys 

General, for Plaintiff and Respondent.

——————————
2

We review an order denying appellant Jimmy A. Perez’s

petition for recall of sentence brought under Penal Code section 

1172.6.

1 We affirm.

BACKGROUND

In 2020, a jury found appellant Jimmy A. Perez guilty of 

willful, deliberate and premeditated attempted murder and 

possession of a firearm by a felon. (§§ 664/187, subd. (a); 29800, 

subd. (a)(1).) The jury also found the attempted murder was 

committed for the benefit of a gang (§ 186.22, subd. (b)(1)) and a 

principal personally discharged a firearm causing great bodily 

injury. (§12022.53, subds. (d) and (e)(1).) The trial court 

sentenced Perez to 39 years to life plus four years in state prison.

On December 22, 2022, Perez filed a petition for 

resentencing pursuant to section 1172.6. The People filed a 

response, attaching as exhibits our opinion affirming Perez’s 

convictions, the jury instructions, and the verdict forms. Perez 

filed a responsive pleading. On April 20, 2023, the trial court 

held a prima facie hearing and denied the petition. The trial 

court found Perez was not “convicted on a theory that is no longer 

valid. Natural and probable consequences was not an instruction 

given to the jury. There was no felony murder instruction given 

to the jury.” This appeal followed.

For context only, we recite the facts of the offenses from our 

prior opinion. (People v. Palacios et al. (July 6, 2022, B310844) 

[nonpub. opn.].) Appellant and his co-defendant Anthony 

Palacios entered a tent in a homeless encampment in the City of 

Los Angeles. Inside the tent were two men. Palacios entered 

1 Undesignated statutory references are to the Penal Code.
3

with gun drawn and Perez followed, openly armed with a gun 

pointed at the ground. Palacios asked the two men where they 

were from and, upon getting a response, Palacios immediately 

shot his weapon twice, killing one of the men and injuring the 

other, who played dead until Palacios and Perez left the tent.

DISCUSSION2

Senate Bill No. 1437 (2017–2018 Reg. Sess.) and Senate 

Bill No. 775 (2021-2022 Reg. Sess.) eliminated the natural and 

probable consequences doctrine as a basis of liability for murder,

attempted murder, and manslaughter by amending sections 188 

and 189. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) 

The intent of Senate Bill No. 1437 was “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); Lewis, at 

p. 967.)

Senate Bill No. 1437 also created section 1172.6, 

establishing a procedure for defendants already convicted of 

murder (and later, attempted murder and manslaughter) under 

the old law to seek resentencing in the trial court if they believe 

they could not be convicted of that crime given the amendments 

to sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3; Senate

Bill No. 775 (2021-2022 Reg. Sess.) at § 2.) Section 1172.6 

provides relief to those convicted of attempted murder only if the 

2 Perez filed a request for judicial notice, asking us to take 

notice of the trial record prepared on appeal in People v. Palacios 

et al., supra, B310844. We grant the request.
4

conviction was based on the doctrine of natural and probable 

consequences. (People v. Coley (2022) 77 Cal.App.5th 539, 548

(Coley).)

Thus, petitions under section 1172.6 address convictions 

where a defendant was not the shooter but was held vicariously 

liable on one of several theories of liability identified in the 

statute.

Petitioners are entitled to appointment of counsel upon the 

filing of a compliant petition. (Lewis, supra, 11 Cal.5th at p. 963.) 

If the record establishes ineligibility for resentencing as a matter 

of law, the petition is properly denied. (Id. at pp. 970–972.) 

However, the petition and record must establish “conclusively 

that the defendant is ineligible for relief” as a matter of law. 

(People v. Lopez (2022) 78 Cal.App.5th 1, 14 (Lopez).) When a 

trial court denies a section 1172.6 petition based on the failure to 

make a prima facie case for relief, our review is de novo. (Ibid.; 

People v. Harden (2022) 81 Cal.App.5th 45, 52.)

The trial court inquiry into whether a prima facie case for 

relief has been made is limited. (Lewis, supra, 11 Cal.5th at 

p. 971.) The trial court is entitled to review the record of 

conviction, which includes the jury summations, jury 

instructions, verdict forms, and prior appellate opinions. (Id. at 

pp. 971–972.) However, Lewis cautions that although appellate 

opinions are generally considered to be part of the record of 

conviction, the prima facie bar was intentionally set very low. 

The probative value of an appellate opinion is case-specific; a 

trial court should not engage in “ ‘factfinding involving the 

weighing of evidence or the exercise of discretion.’ ” (Id. at 

p. 972.)
5

Ineligibility as a matter of law can be established in a 

number of ways. If the record of conviction shows petitioner was 

convicted of murder, attempted murder, or manslaughter under 

any theory of liability that remains valid under Senate Bill 

No. 1437 or in compliance with the requirements of the amended 

law of felony murder, ineligibility for relief has been established. 

(People v. Estrada (2022) 77 Cal.App.5th 941, 945–949 (Estrada)

[petitioner convicted of direct aiding and abetting malice murder 

is ineligible for relief]; People v. Medrano (2021) 68 Cal.App.5th 

177, 182–183 [petitioner convicted based on intent to kill is 

ineligible for relief]; Lopez, supra, 78 Cal.App.5th at p. 14 

[petitioner convicted of attempted murder not based on the 

natural and probable consequences doctrine is ineligible for 

relief].)

If a petitioner makes a prima facie showing of eligibility for 

relief, the trial court must issue an order to show cause and hold 

an evidentiary hearing where the trial court sits as a factfinder. 

(§ 1172.6, subd. (d).) The People bear the burden of proving 

petitioner’s guilt beyond a reasonable doubt under the law as 

amended. (Lewis, supra, 11 Cal.5th at p. 960.)

Perez was convicted of willful, deliberate and premeditated 

attempted murder. He was not the actual killer in that he did 

not shoot his weapon. Co-defendant Palacios fired the shot that

injured the victim. He concedes the jury was not instructed on 

the natural and probable consequences doctrine. Rather, the jury 

was instructed on direct aiding and abetting liability in that it 

had to find that Perez himself knew Palacios intended to commit 

the crime, Perez himself intended to aid and abet Palacios in 

committing the crime, and Perez himself actually aided and 

abetted the commission of the crime. (CALCRIM Nos. 400, 401, 
6

600.) The trial court correctly found that Perez was ineligible for 

relief as a matter of law. (Lopez, supra, 78 Cal.App.5th at p. 14; 

Estrada, supra, 77 Cal.App.5th at pp. 945–949.)

Nevertheless, Perez argues we should construe section 

1172.6 to afford relief to petitioners convicted of attempted 

murder under theories of imputed malice other than the natural 

and probable consequences doctrine. To do so would require us to 

disregard the express language of section 1172.6, subdivision (a), 

which reads: “A person convicted of felony murder or murder 

under the natural and probable consequences doctrine or other 

theory under which malice is imputed to a person based solely on 

that person’s participation in a crime, attempted murder under 

the natural and probable consequences doctrine, or manslaughter 

may file a petition with the court that sentenced the petitioner to 

have petitioner’s murder, attempted murder, or manslaughter 

conviction vacated and to be resentenced on any remaining 

counts . . . .” (§1172.6, subd. (a), italics added.) We decline to 

rewrite the statute. (Coley, supra, 77 Cal.App.5th at pp. 547–

548.)

Perez also argues CALCRIM No. 601 and the prosecutor’s 

closing argument allowed the jury to convict Perez of attempted

murder based solely on Palacios’s state of mind. This instruction 

is irrelevant to the section 1172.6 petition as the instruction and 

the closing argument pertained, in any event, only to the 

additional allegation that the attempted murder was deliberate, 

premeditated and willful. The instruction came into play only 

after the jury had decided the issue of guilt on the attempted 

murder count, for which the jury was properly instructed.
7

Perez also points to the prosecutor’s argument on 

premeditation: “The attempted murder was done willfully and 

with deliberation and premeditation if either Defendant Perez or 

Defendant Palacios or both of them acted with that state of 

mind.” This argument, again, applied only to the additional 

allegation of premeditation, willfulness, and deliberation.

3 We 

find, as did the trial court, that the record is devoid of any jury 

instructions or argument that allowed the jury to impute malice 

to Perez.

3 Perez relies on People v. Whitson (2022) 79 Cal.App.5th 

22, 33, and People v. Curiel (2023) 15 Cal.5th 433, 440–441 to 

argue that the instruction on premeditation “bled” over into the 

instructions on attempted murder. We disagree. Both of those 

cases involved trials where the jury was instructed on natural 

and probable consequences, a dispositive consideration not 

present here. We also reject Perez’s Fourteenth Amendment due 

process argument. (People v. Fisher (2023) 95 Cal.App.5th 1022, 

1030, fn. 7 [where petitioner is ineligible for resentencing relief as 

a matter of law, his due process argument necessarily fails].)
8

DISPOSITION

The order denying the petition for recall of sentence is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.