Filed 6/26/15 P. v. Perez CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ILDEFONSO PEREZ,

 Defendant and Appellant.

 G049443

 (Super. Ct. No. 11CF1208)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary S. 

Paer, Judge. Reversed with directions.

Lynda A. Romero, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney 

General, Arlene A. Sevidal and Tami Falkenstein Hennick, Deputy Attorneys General, 

for Plaintiff and Respondent.

* * *
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A jury convicted defendant Ildefonso Perez of first degree murder (Pen. 

Code, § 187, subd. (a), count 1; all further statutory references are to this code), 

attempted murder (§ 664/187, subd. (a), count 2), and street terrorism (§ 186.22, subd. 

(a), count 3). With regard to the murder and attempted murder counts, the jury found 

defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)). With regard to the attempted murder count, the jury also found he personally used 

a deadly weapon (§ 12022, subd. (b)(1)). 

The court sentenced defendant to a total term of 35 years to life. 

Defendant asserts three grounds for his appeal: (1) the recent Supreme 

Court decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) requires reversal because 

the jury was improperly instructed as to the natural and probable consequences theory of 

aider and abettor liability; (2) the court improperly instructed the jury on mutual combat; 

and (3) his sentence violates the constitutional prohibition on cruel and unusual 

punishment. The Attorney General concurs on the first ground and we agree the argument

is well taken; we therefore reverse the judgment and remand the case for defendant to 

either be resentenced for second degree murder or be granted a new trial. We disagree 

with defendant’s second contention. But because defendant was a minor at the time the 

crimes were committed, the court must consider this fact if defendant is resentenced; his 

youth requires his sentence to include a possibility for release on parole while he is still 

young enough to present him with an opportunity to demonstrate rehabilitation.

FACTS

Abin Delgado, a member of a criminal street gang called KD, was killed in 

a fight involving members of his gang against members of its enemy, a criminal street 

gang called OCK. Defendant, who was 17 years old at the time, was a member of OCK. 

The fight may have involved as many as 40 men and the exact sequence of events is 
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confusing. As interpreted by appellant, “Delgado started a fight with [Fernando] 

Solorzano from OCK who was walking with some women. The fight concluded. Delgado 

sought out his fellow KD members and re-approached Solorzano and the women. One of 

the women called out to Bryan Lopez who was ‘partying’ with his OCK friends. The 

OCK group and the KD group started fighting.” Defendant was one of the participating 

OCK members. 

Delgado suffered a number of injuries, including blunt force trauma to his 

shoulders and head. The trauma to his head included severe brain injury, a skull fracture, 

and subarachnoid hemorrhage. He died shortly after having been transported to the 

hospital. 

John Varona, another KD member, also suffered serious injuries. He 

received a laceration to his head, abrasions to his face, several stab wounds to his back, a 

puncture wound to his hand, an abrasion to his leg and a stab wound that punctured his 

lung. 

Various weapons were found at or near the scene of the fight, including a 

three-foot metal pipe, a scooter, and a knife. There were blood stains on the pipe and 

human hair on the handle bar of the scooter. Blood was found on the driver’s side of a 

truck, on the street pavement, and on the sidewalk. 

Several witnesses identified defendant as an active participant in the fight. 

Defendant’s former girlfriend, Joanne Barrientos, saw defendant holding a pipe. She did 

not see defendant hit anyone with the pipe but testified he was fighting with his hands 

and feet. Barrientos’ sister, Maria, testified she saw defendant swinging the pipe at a

person on the ground. Robert DeLeon told officers defendant was standing there during 

the melee but did not hit the victim. Defendant had a scooter or a three feet long pipe. 

DeLeon stated to the police defendant had later said, “‘I cracked that fool.’” And that he

had said he cracked “the shit out of him.”
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DISCUSSION

1. The “Natural and Probable Consequences” Instruction

The prosecutor’s theory was that defendant was the killer and used a pipe in 

beating Delgado. The prosecutor argued defendant committed “[f]irst degree 

premeditated malice murder.” Although the jury convicted defendant of first degree 

murder, it is doubtful the jury accepted this theory because, among other things, they 

found defendant did not use a deadly weapon during the commission of the crime. It is 

more probable the jury based its guilty verdict on the doctrine of aiding and abetting. 

The court instructed the jury on two aiding and abetting principles, 

including CALCRIM No. 403. This instruction tells the jury they may find defendant 

guilty of murder if, the People prove that another participant in a fight committed the 

crime of first degree premeditated murder, and “[u]nder all of the circumstances, a 

reasonable person in the defendant’s position would have known that the commission of 

the First Degree Premeditated Murder . . . was a natural and probable consequence of the 

commission of the [fight] . . . .” The instruction then defines “natural and probable 

consequence” and concludes “[i]f you decide the defendant aided and abetted the crime 

of Fighting . . ., and that First Degree Premeditated Murder . . . was a natural and 

probable consequence of that crime, the defendant is guilty of First Degree Premeditated 

Murder.”

In Chiu, our Supreme Court held “an aider and abettor may not be 

convicted of first degree premeditated murder under the natural and probable 

consequences doctrine. Rather, his or her liability for that crime must be based on direct 

aiding and abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158-159.) The court 

concluded “punishment for second degree murder is commensurate with a defendant’s 

culpability for aiding and abetting a target crime that would naturally, probably, and 
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foreseeably result in a murder under the natural and probable consequences doctrine.”

(Id. at p. 166.) 

Because of the decision in Chiu, which was filed after defendant’s trial,

CALCRIM No. 403 inappropriately permitted the jury to find defendant guilty of first 

degree murder under the natural and probable consequence doctrine. The Attorney 

General agrees the conviction should be reversed. In Chiu, the court allowed the 

prosecution “to accept a reduction of the conviction to second degree murder or to retry 

the greater offense.” (Id. at p. 168.) We will give the prosecution the same choice here.

2. The “Mutual Combat” Instruction

The court instructed the jury with CALCRIM Nos. 3471 and 3472, which 

advised the jury of the limitations on the defense of self-defense or defense of others 

where parties engage in mutual combat. Defendant contends this created prejudicial error 

because there was insufficient evidence the two criminal street gangs engaged in mutual 

combat. We disagree.

CALCRIM No. 3471, as given, stated in part “A person who engages in 

mutual combat or who starts a fight has a right to self-defense only if: [¶] One, he 

actually and in good faith tried to stop fighting; [¶] and two, he indicated by word or by 

conduct, to his opponent in a way that a reasonable person would understand, that he 

wanted to stop fighting and that he had stopped fighting; [¶] and three, he gave his 

opponent a chance to stop fighting. [¶] If the defendant meets these requirements, then he 

had a right to self-defense if the opponent continued to fight. [¶] . . . [¶] A fight is mutual 

combat when it began or continued by mutual consent or agreement. [¶] That agreement 

may be expressly stated or implied and must occur before the claim to self-defense 

arose.” CALCRIM No. 3472, as given, provided: “A person does not have the right to 

self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to 

use force.”
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Substantial evidence supported the giving of these instructions. DeLeon 

testified defendant was “hanging out” with him and at least 10 other OCK members in an 

apartment. They received a call that one of their members “is getting chased by the guys 

from KD.” The men ran out to confront the KD members who had been chasing an OCK 

member. These facts alone permitted the jury to conclude mutual combat was 

contemplated by defendant and his cohorts.

In addition, even if there were an absence of evidence of mutual combat, 

the instruction would only have been relevant if there had been sufficient evidence 

permitting the jury to conclude defendant was entitled to the defense of self-defense. The 

record fails to show any such evidence. When confronted by the OCK group, the KD 

members attempted to run away and the OCK gang chased them, carrying their weapons. 

The OCK members were the aggressors. 

3. Cruel and Unusual Punishment

Our opinion calls either for defendant to be retried or to be resentenced. 

Therefore, we agree with the Attorney General that the contention defendant’s sentence is 

unconstitutional because it fails to consider his youth and is not ripe for adjudication at 

this time. Should defendant either be resentenced for second degree murder in accordance 

with this opinion, or if he is to be resentenced following a retrial where he might be found 

guilty of first degree murder, the court should consider the fact defendant was a minor at 

the time the crimes were committed. (Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 

2455, 183 L.Ed.2d 407]; People v. Gutierrez (2014) 58 Cal.4th 1354, 1360-1361.)

DISPOSITION

Appellants’ conviction on count 1 is reversed. The case is remanded to the 

trial court with directions to allow the prosecutor to either accept a reduction of the 
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conviction on this count to second degree murder or to retry defendant for first degree 

murder. The conviction on the remaining counts and the remaining enhancements are 

affirmed. 

RYLAARSDAM, ACTING P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.