Filed 6/16/23 P. v. Perez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR PEREZ,

Defendant and Appellant.

 B324434

 (Los Angeles County

 Super. Ct. No. BA358075)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Eleanor J. Hunter, Judge. Dismissed.

Richard B. Lennon and Cheryl Lutz, under appointment by the Court 

of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Arthur Perez appeals the order of the trial court denying his petition 

for resentencing under Penal Code1 section 1172.6 (former section 1170.95).2

We dismiss the appeal as abandoned. 

BACKGROUND

In June 2009, Richard Rios got into an argument with a man who was 

smoking marijuana in his apartment complex. During the confrontation, the 

man shot Rios. Police detained several men in a nearby building, including 

Perez. Rios and another witness later identified Perez as the shooter. 

In April 2011, a jury convicted Perez of attempted premeditated willful 

and deliberate murder (§§ 664/187, subd. (a)). The jury found true 

allegations that in the commission of the offense he personally inflicted great 

bodily injury (§ 12022.7, subd. (a)) and that he had personally used a firearm

(§ 12022.53, subds. (b)-(d)). The trial court imposed a sentence of life 

imprisonment for the attempted murder conviction and an additional 

sentence of 25 years to life for an enhancement of personal gun use resulting 

in great bodily injury (§ 12022.53, subd. (d)).

3

On appeal, this court affirmed the judgment. (People v. Perez (Jan. 29, 

2013, B233296) [nonpub. opn.].)

On March 22, 2022, Perez filed, in pro. per., a petition for resentencing 

pursuant to section 1172.6. Among other allegations, Perez alleged that he 

1 All statutory references are to the Penal Code unless otherwise stated. 

2 Effective June 30, 2022, section 1170.95 was renumbered section 

1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of 

reference, we will refer to the section by its new numbering only. 

3 The court imposed and stayed punishment on the remaining 

enhancements. 
3

“could not presently be convicted of . . . attempted murder because of changes 

made to Penal Code §§ 188 and 189, effective January 1, 2019.” Perez 

requested appointed counsel. 

The trial court appointed counsel. The People filed a response and 

counsel for Perez filed a reply. On August 2, 2022, the court denied the 

petition, finding that Perez failed to make a prima facie case for relief. The 

court reasoned that the jury had found Perez was the actual shooter. The 

jury was also not instructed on the felony murder rule or the natural and 

probable consequences doctrine. 

Defendant timely filed a notice of appeal. 

DISCUSSION

We appointed counsel to represent Perez on appeal. After examination 

of the record, his attorney filed an opening brief raising no issues and asking 

this court to independently review the record. Our Supreme Court has 

established a procedural framework to follow when appointed counsel finds 

no arguable issues. (People v. Delgadillo (2022) 14 Cal.5th 216, 221–222 

(Delgadillo).) Under that framework, we gave notice to Perez that he had the 

right to file a supplemental letter or brief, or his appeal could be dismissed.

If the defendant responds to the notice, the court is required to 

evaluate the arguments raised in the supplemental brief or letter and must 

issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) If the 

defendant does not respond to the court’s notice, then the court may exercise 

its discretion to dismiss the appeal as abandoned. (Ibid.) If it chooses to 

dismiss, it may do so with or without a written opinion. (Ibid.)

Perez was notified of the court’s policy and did not file a supplemental

letter or brief.
4

In accordance with the procedures articulated above, we dismiss the

appeal as abandoned. And even if we were to look at the merits, the trial 

court’s order is indisputably correct because Perez is statutorily ineligible for 

relief. Under the ordinary principles governing statutory interpretation, a 

petitioner is eligible for relief under section 1172.6 if he could not be 

convicted at present because of changes to the law made by Senate Bill No. 

1437 (2017-2018 Reg. Sess.). (People v. Lewis (2021) 11 Cal.5th 952, 959.) 

Here, the jury found Perez was the actual shooter. 

DISPOSITION

The appeal is dismissed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.*

We concur:

CURREY, Acting P. J.

COLLINS, J.

*Judge of the Los Angeles County Superior Court, assigned by the Chief

Justice pursuant to article VI, section 6 of the California Constitution.