Filed 1/8/24 P. v. Perez CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIK ARMENTA PEREZ,

Defendant and Appellant.

B324095

(Los Angeles County

Super. Ct. No. KA113936)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mike Camacho, Judge. Affirmed.

Maxine Weksler, 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, Charles S. Lee and Michael C. Keller, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Erik Perez appeals from an order denying his petition for 

resentencing under Penal Code1section 1172.6,2 which limits 

accomplice liability for murder. Erik3concedes he was not 

convicted under a now-invalid theory of felony murder or the 

natural and probable consequences doctrine. Instead, he 

contends he was convicted based on a theory under which malice 

was improperly imputed to him. We disagree and affirm the 

order. 

BACKGROUND

I. The underlying crime

Our summary of the evidence underlying the murder is 

from the opinion affirming Erik’s and Omar’s judgment of 

conviction, People v. Perez (Jan. 28, 2021, B296242) [nonpub. 

opn].

“1. Background information

“Appellant Omar is appellant Erik’s uncle, and is three 

years older than Erik. Approximately a month and a half before 

the charged murder, Erik moved to California from Arizona and 

began staying in Omar’s home. Prior to that time, the men had 

met only twice.

“The victim, Alberto Calvillo, and Karen Salinas were 

engaged to be married and had two young children together. 

1 All further undesignated statutory references are to the 

Penal Code.

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

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

3 Because Erik Perez and Omar Perez share a surname, we 

refer to them by their first names to avoid confusion.
3

“2. People’s evidence

“a. The murder

“On the evening of November 6, 2016, Calvillo and Salinas, 

accompanied by Salinas’s cousin Ernesto and her friend Lizeth, 

went to the Mariscos Uruapan restaurant in Baldwin Park 

(hereinafter ‘Mariscos’). In addition to serving food, Mariscos 

offered live music. Mariscos was equipped with a video 

surveillance system, with cameras both inside and outside of the 

restaurant. 

“Erik and Omar also patronized Mariscos that evening, and 

sat at a table near Calvillo’s group. Juan Serrano, another 

restaurant patron, spent approximately a half hour drinking, 

dancing, and eating at [Erik’s and Omar’s] table after his original 

dining companions left for the evening. He had not met ...

appellant previously. Erik and Omar had no confrontation or 

issue with Calvillo while inside the restaurant.

“Shortly before 11:00 p.m., Salinas began feeling unwell. 

She and Calvillo stepped outside so she could get some fresh air. 

In front of the restaurant’s entrance was a small, tiled area. A 

ramp led down from the entrance to the parking lot. 

Perpendicular to the ramp, some stairs led out to Ramona 

Boulevard. Calvillo and Salinas stood on the stairs, with Calvillo 

a step from the top.

“As Calvillo and Salinas talked on the stairs, Erik, Omar, 

and Serrano came outside and stood near them at the top of the 

ramp. Omar loudly made derogatory remarks about women, 

including that all women were ‘gold diggers’ and ‘whores’ who 

only wanted money. He appeared angry and agitated. Calvillo 

told the men several times, ‘Shut up. You guys are drunk.’ 

Someone from Omar’s group said that they were not talking 
4

about Salinas. But, one of the men then pointed at Salinas, and 

one of them said, ‘Well, look at your girl. Look at what she’s 

wearing.’ Omar said to Erik several times, ‘Go get the 9.’ Erik 

left the group and went to the parking lot. 

“Calvillo stepped up to the top of the ramp where Omar and 

Serrano were, approximately three feet away from them. 

Serrano tried to calm Omar down. Salinas stepped in front of 

Calvillo and tried to convince him to go inside. He refused, 

saying he was not going to fight and was not going to start 

anything, but was not going to ‘go inside and look like a bitch,’

either. He told Salinas to go back in the restaurant and get her 

cousin Ernesto. She did. 

“Meanwhile, Erik walked through the parking lot, entered 

a Toyota Camry, and drove it to the driveway in front of the 

restaurant. He left the engine running, and remained in the car. 

When the Camry pulled up, Omar ran down the ramp to the car. 

Erik opened the door and handed Omar a gun. Omar then ran 

back up the ramp to the front of the restaurant, shot Calvillo 

multiple times, ran back down the ramp to the Camry, and 

entered the front passenger seat. Erik drove them from the 

scene. 

“Salinas heard screaming and went back outside, where 

she found Calvillo on the ground, having difficulty breathing. 

Her friend Lizeth attempted to put pressure on Calvillo’s gunshot 

wounds, while Salinas held Calvillo’s hands. Calvillo was 

transported to a hospital, but did not survive. 

“The entire incident, from when appellants came outside 

until the shooting, lasted just over three minutes.
5

“b. The investigation

“Police officers stopped the Camry within 15 minutes of the 

murder. In a field show-up, Salinas identified both appellants, 

who were arrested. 

“Police found 9 nine-millimeter Aguila casings at the scene. 

Three additional nine-millimeter casings were found in the 

Camry.

[4]

 A Browning Arms, high-powered, nine-millimeter 

semiautomatic handgun was found hidden in the center console 

beneath the gearshift. A firearms examiner opined that the gun 

in the Camry discharged all the casings found at the murder 

scene and inside the car, as well as three bullet fragments 

recovered from Calvillo’s body. Gunshot residue was found on

[Erik’s and Omar’s] hands. Erik’s DNA was found on the gun’s 

grip, as well as on the three casings found in the Camry.

“After [Erik’s and Omar’s] arrests, Erik was seated in a 

police car for 10 to 15 minutes. On the floor in front of Erik’s 

seat, officers found four small baggies containing 

methamphetamine. A detective opined that the 

methamphetamine was possessed for the purpose of sale, but 

acknowledged that ‘users also sell.’ Omar had in his possession 

two baggies containing cocaine.

“Calvillo suffered five gunshot wounds to his shoulder, left 

chest, abdomen, and right leg. The shoulder and chest wounds 

were fatal. His toxicology report tested negative for alcohol but 

positive for methamphetamine and its metabolite.

4 Erik testified that earlier on the day of the shooting, Omar 

had fired the gun several times while in the Camry. The casings 

found in the car were a result of that shooting.
6

“3. Defense evidence

“a. Erik’s testimony

“Erik testified in his own behalf, as follows. On the day of 

the shooting, at 3:00 p.m., he and Omar consumed approximately 

a half bottle of tequila while at home. At about 4:00 p.m., they 

went to Ramada, a ‘dance place’ in Baldwin Park, to drink and 

celebrate the impending birth of his child. Erik drove them 

there. At Ramada, the men drank beer and used ‘a lot’ of cocaine 

in the restroom; they also ingested methamphetamine. They met 

two women, Guadalupe M. and her friend, whom they had never 

met before. The women declined their requests to dance because 

the music was not good. The men suggested the women 

accompany them to a different restaurant, but they refused and 

said they were going to Mariscos. When the women left, Erik and 

Omar also went to Mariscos.

“At Mariscos, Guadalupe and her friend sat at Omar and 

Erik’s table. Erik flirted and danced with Guadalupe, while 

Omar directed his attentions to the friend. Erik and Omar 

bought the women drinks, and Omar bought them flowers. At 

some point thereafter, the women left the restaurant. Erik 

walked with them to their car, unsuccessfully trying to persuade 

them to stay.

“While at Mariscos, Omar and Erik ordered several buckets 

of beer. Omar ingested cocaine at the table. Erik also used 

cocaine, but in the restroom. The men also used 

methamphetamine. They had no ‘problems’ with anyone while 

inside the restaurant.

“Around 11:00 p.m., Omar, Erik, and Serrano walked 

outside and stood at the top of the ramp, near Calvillo and 

Salinas. Omar was upset that Guadalupe and her friend had left. 
7

Referring to the women, Omar loudly talked about women being 

‘completely worthless’ and only caring about money. Calvillo got 

upset because he believed Omar was talking about Salinas. He 

began arguing with Omar. Omar apologized and stated he was 

not referring to Salinas. Calvillo, who was a big man and looked 

angry, stepped toward them, stood over Erik, and threatened to 

‘beat the fuckin’ shit out of’ them. Erik thought Calvillo wanted 

to hit them and fight, and was afraid. Salinas tried to separate 

Calvillo from the men and convince him to go inside, but he 

refused. Calvillo told Salinas to go get her cousin. Omar told 

Erik to ‘go get the 9,’ which Erik understood to mean Omar’s 

nine-millimeter firearm that was hidden inside the Camry’s 

center console. Omar did not say that he intended to kill Calvillo.

“Erik went to get the gun. He walked to the Camry in the 

parking lot, during which time he could hear Omar and Calvillo 

arguing loudly. He sat inside the Camry for approximately a half 

minute, retrieving the gun. He then executed a three-point turn 

in order to get to the front of the restaurant and drove to the 

driveway area near the bottom of the ramp. When Omar ran 

down to the car, Erik handed him the gun and remained inside. 

He heard multiple gunshots. Omar returned to the car, and Erik 

drove them away from the scene.

“Erik explained he retrieved the gun because he was afraid 

Calvillo was going to ‘do something’ to him and Omar, and 

‘because of the drugs.’ He did not know or intend that Omar 

would kill Calvillo.

“b. Expert testimony

“Dr. John Budny, an expert in the fields of toxicology, 

pharmacology and biochemistry, testified regarding the effects of 

drugs and alcohol on the human body. Alcohol, cocaine, and 
8

methamphetamine affect cognitive and psychomotor functions. 

Alcohol lessens a person’s ‘control mechanisms,’ and 

methamphetamine can cause aggression and paranoia. All three 

substances affect a person’s ability to reason and reflect on their 

actions. Persons under the influence of alcohol, 

methamphetamine, and cocaine would have ‘grossly impaired’ 

cognitive functions and would be impulsive, unable to think 

through their actions, and unable to carefully consider prior to 

making a decision. The effect of such substances on any 

individual user depends on numerous variables, including the 

person’s metabolism, how much they have eaten, and their 

tolerance for the substance. A person could be cognitively 

impaired yet still be able to drive a car. Budny could not 

definitively opine as to appellants’ level of impairment or how the 

drug and alcohol use affected them. However, based on the 

amounts of alcohol appellants reported consuming, they would 

have been under the influence for purposes of California’s driving 

laws.

“Calvillo’s autopsy report indicated he had levels of 

methamphetamine in his blood that could cause behavioral 

changes such as agitation and restlessness.”

II. Erik’s conviction and sentence

At Erik and Omar’s joint trial, the People’s theory of the 

case was that Omar was the actual killer and Erik was the direct 

aider and abettor. In accordance with that theory, a jury 

convicted Erik and Omar of willful, deliberate, and premeditated 

first degree murder (§ 187, subd. (a)), with a true finding that 

Omar personally and intentionally discharged a firearm, 

proximately causing great bodily injury and death (§§ 12022.53, 

subds. (b), (c), (d), 12022.5, subd. (a)(1)). As to Erik, it found a 
9

principal-armed allegation true. (§ 12022, subd. (a)(1).) The trial 

court sentenced Erik to 25 years to life in prison.

III. Postconviction proceedings

In 2021, Erik filed a form petition for resentencing under 

section 1172.6. Private counsel represented Erik on the petition. 

The People opposed the petition on the ground Erik was not 

convicted based on felony murder or the natural and probable 

consequences doctrine but was instead convicted on a direct 

aiding and abetting theory. In response, Erik contended he was 

convicted under a theory by which malice was imputed to him 

based solely on his participation in the crime. The trial court 

denied the petition, finding that Erik was necessarily convicted of 

murder under a direct aiding and abetting theory.

DISCUSSION

I. Overview of Senate Bill No. 1437

To the end of ensuring a person’s sentence is commensurate 

with the person’s individual criminal culpability, Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability 

under the felony-murder rule, eliminated the natural and 

probable consequences doctrine as it relates to murder, and

eliminated convictions for murder based on a theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime. (See generally People v. Reyes (2023) 14 

Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; 

People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill 

No. 1437 added section 189, subdivision (e) (limiting application 

of the felony-murder rule) and section 188, subdivision (a)(3) 

(stating that “to be convicted of murder, a principal in a crime 

shall act with malice aforethought. Malice shall not be imputed 
10

to a person based solely on his or her participation in a crime.”). 

As amended by Senate Bill No. 775, effective January 1, 2022, 

these ameliorative changes to the law now expressly apply to 

attempted murder and voluntary manslaughter.

Senate Bill No. 1437 also created a procedure, codified at 

section 1172.6, for a person convicted of murder, attempted 

murder, or voluntary manslaughter under the former law to be 

resentenced if the person could no longer be convicted of those 

crimes under the current law. (People v. Lewis, supra, 11 Cal.5th 

at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) A 

defendant commences that procedure by filing a petition 

containing a declaration that, among other things, the defendant 

could not presently be convicted of murder, attempted murder, or 

voluntary manslaughter under the current law. (People v. Strong

(2022) 13 Cal.5th 698, 708 (Strong).) 

At the prima facie stage, the trial court takes as true the 

petitioner’s factual allegations and assesses whether the 

petitioner would be entitled to relief if those allegations were 

proved. (People v. Lewis, supra, 11 Cal.5th at p. 971.) In 

determining whether the petitioner has made a prima facie case 

for relief, the trial court may look at the record of conviction, 

including jury instructions, verdicts and closing argument, to 

determine readily ascertainable facts such as the crime of 

conviction. (People v. Duchine (2021) 60 Cal.App.5th 798, 815; 

see, e.g., People v. Harden (2022) 81 Cal.App.5th 45, 56.) At the 

prima facie stage, the trial court does not engage in fact finding 

that involves the weighing of evidence or exercise of discretion. 

(Lewis, at p. 972.) If a petition establishes a prima facie case for 

relief, the trial court must appoint counsel if requested, issue an 
11

order to show cause, and hold an evidentiary hearing. (§ 1172.6, 

subds. (b)(3), (c), & (d)(1).)

II. Erik was not convicted of murder under an invalid theory

Erik contends he established a prima facie case for relief 

because the jury instructions on aiding and abetting and the trial 

court’s responses to jury questions allowed the jury to impute 

malice to him based solely on his participation in the crime. We 

disagree.

A. Governing principles and jury instructions

Murder is the unlawful killing of a human with malice 

aforethought. (§ 187, subd. (a).) Malice is express “when there is 

manifested a deliberate intention to unlawfully take away the life 

of a fellow creature.” (§ 188, subd. (a)(1).) Malice is implied 

“when no considerable provocation appears, or when the 

circumstances attending the killing show an abandoned and 

malignant heart.” (§ 188, subd. (a)(2).) First degree murder 

occurs when the murder is willful, premeditated, and deliberate. 

(§ 189, subd. (a).) 

A defendant is liable as a direct aider and abettor of 

express malice murder if the defendant aided or encouraged the 

murder with knowledge of the perpetrator’s unlawful purpose 

and with the intent or purpose of committing, encouraging, or 

facilitating the murder’s commission. (In re Lopez (2023) 14 

Cal.5th 562, 579; People v. McCoy (2001) 25 Cal.4th 1111, 1122

[direct aiding and abetting is based on participants’ combined 

actus reus and aider and abettor’s own mens rea].) When an 

aider or abettor, acting with a personal mens rea of 

premeditation and deliberation, knowingly and intentionally 
12

assists another to kill someone, the aider and abettor is guilty of 

first degree premeditated murder. (In re Lopez, at p. 579.)

In contrast, a defendant is liable as a direct aider and 

abettor of implied malice murder if the defendant, by words or 

conduct, aids the commission of a life-endangering act, not the 

act’s result. (People v. Reyes, supra, 14 Cal.5th at p. 991.)

The direct aider and abettor must know that the perpetrator 

intended to commit the act, intend to aid the perpetrator in 

committing the act, know that the act is dangerous to human life, 

and act in conscious disregard to human life. (Ibid.)

In accordance with these principles, the trial court here 

instructed Erik’s jury on murder with CALCRIM No. 520: “To 

prove that a defendant is guilty of this crime [murder], the People 

must prove that: [¶] 1. The defendant committed an act that 

caused the death of another person; [¶] AND [¶] 2. When the 

defendant acted, he had a state of mind called malice 

aforethought.” The instruction then stated that there are two 

kinds of malice: express and implied, either of which is sufficient 

to establish the state of mind for murder. The defendant had 

express malice “if he unlawfully intended to kill” and implied 

malice if he “intentionally committed an act”; the “natural and 

probable consequences of the act were dangerous to human life”; 

at “the time he acted, he knew his act was dangerous to human 

life”; and he “deliberately acted with conscious disregard for 

human life.”

The trial court also instructed the jury on willful, 

deliberate, and premeditated murder with CALCRIM No. 521: 

“A defendant is guilty of first degree murder if the People have 

proved that he acted willfully, deliberately, and with 

premeditation. The defendant acted willfully if he intended to 
13

kill. The defendant acted deliberately if he carefully weighed the 

considerations for and against his choice, and knowing the 

consequences, decided to kill. The defendant acted with 

premeditation if he decided to kill before completing the act that 

caused death.”

Finally, the trial court instructed the jury with the 

standard direct aiding and abetting instruction, CALCRIM 

No. 401: “To prove that defendant Eri[k] Perez is guilty of a 

crime based on aiding and abetting that crime, the People must 

prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. 

The defendant knew that the perpetrator intended to commit the 

crime; [¶] 3. Before or during the commission of the crime, the 

defendant intended to aid and abet the perpetrator in committing 

the crime; AND [¶] 4. The defendant’s words or conduct did in 

fact aid and abet the perpetrator’s commission of the crime. [¶] 

Someone aids and abets a crime if he knows of the perpetrator’s 

unlawful purpose and he specifically intends to, and does in fact, 

aid, facilitate, promote, encourage, or instigate the perpetrator’s 

commission of that crime.”

B. The instructions did not permit the jury to impute malice 

to Erik

Erik concedes that his jury was not instructed on felony 

murder or the natural and probable consequences doctrine. 

However, citing People v. Langi (2022) 73 Cal.App.5th 972 

(Langi), he argues that the instructions, CALCRIM No. 401 in 

particular, nonetheless allowed the jury to impute malice to him 

based on his participation in the crime. 

In Langi, supra, 73 Cal.App.5th 972, Langi and three other 

men beat the victim, who died from head trauma after falling and 

hitting his head during the assault. Langi’s jury was instructed 
14

on aiding and abetting with CALJIC No. 3.01 (which is 

substantially similar to CALCRIM No. 401) and on second degree 

murder with CALJIC No. 8.31. The jury found Langi guilty of 

second degree murder, and the trial court summarily denied his 

subsequent section 1172.6 petition. On appeal, the appellate 

court found that Langi was entitled to an evidentiary hearing

because the instructions permitted him to be found guilty of 

aiding and abetting second degree murder by improperly 

imputing malice to him and without finding he personally acted 

with malice. 

The court explained that although the aiding and abetting 

instruction stated that a person aids and abets a crime if the 

person acts with knowledge of the perpetrator’s unlawful purpose 

and with the intent or purpose to commit or encourage that 

crime, “the second-degree-murder instruction specified that the 

direct perpetrator of that crime need not act with the unlawful 

intent of causing death.” (Langi, supra, 73 Cal.App.5th at 

p. 982.) That is, “while the perpetrator must have deliberately 

performed the fatal act ‘with knowledge of the danger to, and 

with conscious disregard for, human life’ (CALJIC No. 8.31), his 

purpose may have been only to strike or to injure, or conceivably 

only to embarrass, the victim. Since the perpetrator’s purpose 

need not have been to kill the victim, the aider and abettor’s 

knowledge of that purpose similarly need not have been 

knowledge that the perpetrator aimed to kill. If the perpetrator 

need not have had ‘murderous intent,’ certainly the aider and 

abettor need not have had such an intent.” (Id. at pp. 982–983.) 

The instructions given permitted the jury to conclude that, to be 

guilty as an aider and abettor of second degree murder, Langi 

need only have intended to encourage the perpetrator’s 
15

intentional act—punching the victim—whether or not Langi 

intended to aid or encourage the victim’s killing, and whether or 

not Langi personally knew of and disregarded the risk of such a 

killing. (Id. at p. 983.) In short, the instructions permitted the

jury to find that the aider and abettor intended to help the 

perpetrator commit an act—an assault, for example—without the 

mental state of conscious disregard for human life. Langi

concluded that the instructions should have been tailored to state 

that, to be guilty as a direct aider and abettor of second degree 

murder, an accomplice must have acted with the mental state of 

implied malice. (Ibid.; accord, People v. Powell (2021) 63 

Cal.App.5th 689.) 

Langi is distinguishable. Langi concerned a second degree 

murder conviction, which can be accomplished with implied 

malice. In contrast, Erik’s jury found him guilty of first degree 

premeditated murder, which can only be accomplished with

express malice. Erik’s jury was instructed regarding 

premeditation and deliberation. By finding Erik guilty of first 

degree premeditated murder, the jury necessarily concluded he 

harbored express malice and the elevated mens rea of 

premeditation and deliberation, both of which require intent to 

kill. (See also People v. Coley (2022) 77 Cal.App.5th 539, 547 

[attempted murder conviction necessarily required intent to kill

finding]; cf. People v. Maldonado (2023) 87 Cal.App.5th 1257, 

1259, 1262–1263 [jury instructions permitted conviction based on 

imputed malice when defendant was convicted of first degree 

lying-in-wait murder, which does not require intent to kill].)

We also find unpersuasive Erik’s argument that the jury 

might have been confused about CALCRIM No. 401’s reference to 

aiding and abetting “the crime.” He suggests that the jury could 
16

have thought that “the crime” referred to something other than 

murder, such as assault with a firearm. Unlike the Langi

defendant who was charged with robbery, battery, and murder, 

Erik was charged only with having committed murder. His jury 

could not have misunderstood that the reference to “the crime” in 

CALCRIM No. 401 was to murder. 

C. The jury questions do not show that the jury imputed 

malice to Erik

Although the jury instructions did not allow the jury to 

convict Erik by imputing malice to him, he argues that two 

questions the jury asked during deliberations show it did just 

that.5 

The jury first asked, “Is Erik guilty of Murder 2 now?” In 

response, the trial court reminded the jury that defendants were 

presumed to be not guilty, so whether Erik was “guilty of murder 

two now,” my “simple response is ... only unless the jury finds 

otherwise beyond a reasonable doubt. And until or unless a 

unanimous decision is made by that jury as to Eri[k] in the crime 

of murder, he is presumed to be not guilty.”

Second, the jury asked, “Is there a[n] option of Murder 2 

besides 1st degree & voluntary manslaughter?” The trial court 

responded, “Well, I don’t mean to be insulting by answering the 

question this way but there is an option and the option is not 

guilty. [¶] . . . The simple answer is yes, and it’s not guilty if the 

jury finds that the evidence of the trial leaves you with a 

5 The jury asked a third question, “What is imperfect 

manslaughter?” The trial court said that there was a crime of 

voluntary manslaughter but no crime of imperfect manslaughter, 

and it reiterated the elements of imperfect self-defense.
17

reasonable doubt as to whether either one or both defendants are 

guilty of murder, first-degree, second-degree, or voluntary 

manslaughter. So there is an option and it would be not guilty.”

Erik analogizes these questions and responses to those in 

People v. Nero (2010) 181 Cal.App.4th 504. The Nero jury 

expressly asked if it could find the aider and abettor guilty of a 

lesser crime and if an aider and abettor could “ ‘bear less 

responsibility.’ ” (Id. at p. 519.) The trial court, however, said 

only that the aider and abettor could be found not guilty. Nero

observed, “But the jury’s expressed concern was not whether it 

could acquit the aider and abettor, but whether the aider and 

abettor had to be found guilty of ‘the same level, murder two or 

manslaughter, or could they be at a lower level?’ ” (Ibid.) In 

response the trial court repeatedly read CALJIC No. 3.00, which 

states principals are equally guilty. Based on those 

circumstances, Nero, at page 520, found there was a reasonable 

possibility the trial court’s response to the questions foreclosed 

the jury from considering whether to find the aider and abettor 

guilty of a lesser crime. 

Similarly, the jury in People v. Loza (2012) 207 Cal.App.4th 

332, 349, asked whether an aider and abettor’s state of mind 

“need/should be considered” and whether it made “a difference

when considering the degrees of murder” that a person aids and 

abets out of worry of an attack from the perpetrator. The trial 

court simply told the jury to apply the evidence to the law as 

instructed. (Ibid.)

The jury questions and trial court responses in Nero and 

Loza are distinguishable. In those cases, the juries were clearly 

asking about the aider and abettor’s mens rea and the trial 

courts’ responses were inadequate. Here, we do not agree with 
18

Erik that implicit in the jury’s questions was a belief he was not 

as culpable as Omar, and therefore the trial court should have 

explained he could be found guilty of a lesser crime than Omar. 

It is unclear what the jury meant by the first question. Indeed, it 

seems to reflect a basic misunderstanding of the jury’s role, which 

is why the trial court appropriately responded that Erik was 

presumed to be not guilty unless the jury unanimously agreed he 

was guilty of murder. And unlike the questions in Nero and 

Loza, the jury’s second question makes clear that the jury 

understood it could convict Erik of something less than first 

degree murder. The trial court therefore appropriately told the 

jury its options were first degree murder, second degree murder, 

voluntary manslaughter, or not guilty. We therefore do not agree 

that the trial court’s responses to these questions foreclosed the 

jury from finding Erik guilty of something other than first degree 

murder or from considering his own mens rea or show that the 

jury imputed malice to Erik.

III. The trial court did not improperly engage in fact finding

Erik next asserts that the trial court improperly engaged in 

fact finding at the prima facie stage by failing to consider the 

jury’s questions as evidence the jury imputed malice to Erik. It is 

unclear how the failure to consider those questions can amount to 

fact finding. In any event, we have rejected the argument that 

those questions show that the jury imputed malice to Erik.

IV. Sufficiency of the evidence

Erik contends that even if he is ineligible for resentencing, 

his murder conviction still must be reversed, because there was 

insufficient evidence he had express or implied malice. As we 
19

explain, this contention, which we previously rejected on direct 

appeal, is not properly before us.

Erik cites Strong, supra, 13 Cal.5th 698, to support his

argument we may consider the sufficiency of the evidence to 

support the murder conviction. Strong considered the 

relationship between a section 1172.6 petition and People v. 

Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 

Cal.4th 522, cases which clarified and limited the concept of a 

major participant in an underlying felony who acts with reckless 

indifference to human life. Strong held that a pre-Banks and 

Clark finding that a defendant was a major participant who acted 

with reckless indifference to human life does not preclude a

defendant from making a prima facie showing of eligibility for 

section 1172.6 relief. In so holding, the court noted that a 

determination substantial evidence supported a murder 

conviction “is not a basis for denying resentencing after an 

evidentiary hearing” or for “denying a petitioner the opportunity 

to have an evidentiary hearing in the first place.” (Strong, at p. 

720.) By this, the court was merely saying that sufficiency of the 

evidence generally to support a murder conviction is not the issue 

on a petition for resentencing. Strong did not say or hold that a 

defendant generally may relitigate sufficiency of the evidence 

issues via a section 1172.6 petition.

Instead, courts have consistently found that section 1172.6 

is not a vehicle to relitigate trial errors or issues already decided. 

(See, e.g., People v. Coley, supra, 77 Cal.App.5th at p. 549 [§ 

1172.6 “is not a means by which a defendant can relitigate issues 

already decided”]; People v. Farfan (2021) 71 Cal.App.5th 942, 

947 [“mere filing” of § 1172.6 petition doesn’t afford petitioner

new opportunity to raise trial error claims or attack sufficiency of 
20

evidence to support jury’s findings]; People v. DeHuff (2021) 63 

Cal.App.5th 428, 438 [§ 1172.6 is not a direct appeal].) We 

rejected Erik’s sufficiency of the evidence challenge on direct 

appeal. (People v. Perez, supra, B296242.) We have no occasion 

to reconsider that issue here. 

DISPOSITION

The order denying Erik Perez’s Penal Code section 1172.6 

petition is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

ADAMS, J.