Filed 9/15/23 P. v. Perez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JULIO PEREZ,

Defendant and Appellant.

 B319874

 (Los Angeles County

 Super. Ct. No. 

 TA087610-02)

APPEAL from an order of the Superior Court of Los 

Angeles County, Connie R. Quinones, Judge. Affirmed.

Spolin Law, Aaron Spolin, and Jeremy Cutcher for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, and Charles S. Lee and Viet H. 

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
2

A jury convicted defendant and appellant Julio Perez 

(defendant) of, among other things, two counts of first degree 

murder for his participation in the fatal shooting of two gas 

station convenience store employees in 2006. After intervening 

changes in law defining murder, defendant petitioned for 

resentencing under former Penal Code section 1170.95, now 

codified at Penal Code section 1172.6.1 Relying on the evidence 

presented at defendant’s murder trial, the trial court found 

defendant was a major participant in the murders who acted with 

reckless indifference to human life and denied the section 1172.6 

petition. We are asked to decide whether the trial court should 

have done more to specify the burden of proof it was applying

when it made its findings in connection with the section 1172.6 

petition.

2

I. BACKGROUND

A. The Offense Conduct3

In July 2006, defendant was the driver in an attempted 

robbery at an AM/PM gas station convenience store. Co1 Undesignated statutory references that follow are to the 

Penal Code.

2 Defendant also hints at a claim that insufficient evidence 

supports the trial court’s major participant and reckless 

indifference findings, though he says the point is “in many 

respects irrelevant” to the issue he asks us to decide. As we will 

explain, hints described as irrelevant are insufficient to present a 

question for resolution.

3 Our description of the offense conduct draws on this court’s

unpublished opinion in defendant’s previous appeal. (People v. 

Julio Perez and Eric Sanford (May 7, 2010, B211015) [nonpub. 
3

defendant Adam Loza (Loza) was also present, as were their 

younger brothers. While defendant was waiting outside in a 

vehicle, Loza’s younger brother brought a 12-pack of beer to the 

mini mart’s register. When the clerk would not sell him the beer 

because he looked too young, a fight broke out between the clerk 

and the two brothers until other gas station employees were able 

to break up the fight.

Roughly six months later, in November 2006, defendant, 

Loza, and co-defendant Eric Sanford (Sanford) attempted to rob a 

Mobil gas station mini market. Two gas station clerks, Eduardo 

Roco and Esther Arteaga, were killed in the process.

On the evening of the attempted robbery and murders, 

defendant, Loza, and others were driving around in an SUV and 

drinking beer when defendant stopped to pick up Sanford. He

got into the front passenger seat of the vehicle while holding a

gun, said he had just shot someone in the head, and urged 

defendant to drive away before the police arrived. Defendant 

laughed off the comment, and Sanford then stowed the gun in a 

compartment in the back of the SUV. After running out of beer, 

defendant, Sanford, and Loza discussed doing a “beer run,” a 

term used for when someone goes into a liquor store, grabs an 18 

pack of beer, and runs out without paying.

Around 4 a.m., the group pulled into a 24-hour Mobil gas 

station that had a mini market on the premises. Defendant, 

Loza, and Sanford got out of the vehicle and, as seen on later 

obtained surveillance video footage, congregated at the back of 

opn.] (“Perez I”).) The Attorney General asked us to take judicial 

notice of the opinion and appellate record in that appeal and this 

court granted the request.
4

the SUV. Defendant opened the back of the vehicle, handed a

gun to Sanford, and gave Loza an article of clothing to use to 

cover his face. Sanford and Loza then walked to the mini mart

while defendant got back in the driver’s seat of the vehicle and

kept the engine running.

When Sanford and Loza returned to the vehicle about three 

minutes later, Loza was crying and said, “‘He just shot him, he 

just shot him.’” Sanford told defendant he killed the two market 

clerks because they refused to give him money and he wanted to 

prevent them from being witnesses against him. Defendant then 

drove away with everyone in the vehicle and told Sanford to stash 

the gun used in the killings in the vehicle’s back compartment.

B. Arrest, Trial, and Sentencing

The police arrested defendant, Loza, and Sanford after the 

Mobil gas station killings. The Los Angeles County District 

Attorney charged them with two counts of murder and two counts 

of attempted robbery. Multiple murder and robbery-murder 

special circumstances were alleged in connection with the murder 

charges. Defendant alone was also charged with a third count of 

attempted robbery for the aborted beer incident earlier in July 

2006.

After trial, the jury convicted defendant on all charges. 

The jury found the multiple murder special circumstance not true 

and could not reach a verdict on the robbery-murder special 

circumstance. The trial court sentenced defendant to two 

consecutive terms of 25 years to life in prison for the murders, 

imposed and stayed sentences for the corresponding attempted 

robbery convictions, and imposed a concurrent determinate 
5

sentence for the 2006 attempted robbery conviction. This court 

affirmed the judgment, with modifications, on direct appeal.

C. Defendant’s Resentencing Petition

In 2019, defendant filed a petition for resentencing under 

section 1172.6. The trial court summarily denied the petition. 

Defendant appealed, and in November 2020, we reversed with 

directions to appoint counsel and redetermine the matter. 

(People v. Perez (Nov. 24, 2020, B300470) [nonpub. opn.].) On 

remand, the trial court issued an order to show cause and 

scheduled a hearing on the petition.

Before the hearing, defendant filed a pre-hearing 

memorandum urging the trial court to “require the People to 

prove every element of liability for murder under the amended 

statutes beyond a reasonable doubt.” Also before the hearing, the 

Legislature amended section 1172.6 to place on the prosecution 

the burden of showing that a petitioner is “guilty of murder or 

attempted murder under California law as amended by the 

changes to Section 188 or 189 made effective January 1, 2019” 

and to require a court deciding whether a defendant is entitled to 

relief under the statute to make its determination using the 

beyond a reasonable doubt standard of proof. (Stats. 2021, ch. 

551, § 2, eff. Jan. 1, 2022.) The statutory amendments, which 

became effective before the hearing on defendant’s petition, 

further provide that “[a] finding that there is substantial 

evidence to support a conviction for murder, attempted murder, 

or manslaughter is insufficient to prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.” (Stats. 

2021, ch. 551, § 2, eff. Jan. 1, 2022.)
6

At the hearing on defendant’s petition in February 2022, 

neither the prosecution nor defendant (who was represented by 

counsel) presented new evidence. After defendant’s attorney

notified the court there were no additional witnesses, the 

following exchange between the attorney and the court took 

place:

[Counsel:] “We’re just submitting on the 

pleading, your honor, which is the petition and the 

reply to the People. And we’re ready to proceed. [¶] 

I believe the OSC is the People’s burden to prove 

beyond a reasonable doubt the—under the 

circumstances—that defendant was a major 

participant or acted with reckless indifference in this 

case.

The Court: That’s true. And on September 

18th, 2008, the court sentenced the petitioner to a 

total of 52 years to life for the murders, robberies, 

and the sex allegations. [¶] He appealed it. The case 

was affirmed. He—subsequently, it was directed 

back to the court for modification so that it was 50 

years to life.”

After the hearing, the trial court issued a minute order 

denying defendant’s 1172.6 petition. The court found defendant 

was a major participant in the attempted robbery who acted with

reckless indifference to human life. The court explained “all 

factors were met with the evidence presented at trial, as fully 

reflected in the notes of the official court reporter.”

When making its finding on the record that defendant was 

a major participant, the trial court expressly addressed each of 

the five factors articulated in People v. Banks (2015) 61 Cal.4th 
7

788 (Banks).4 Discussing what role the defendant played in 

planning the attempted robbery, the trial court focused on the 

difference between the events that occurred on the night of the 

fatal shootings and the July 2006 attempted robbery. The court 

also considered the presence of the gun and how defendant gave 

Loza a shirt to use to cover his face. The court observed: “That 

doesn’t sound like a beer run. That sounds like a robbery in 

planning. . . . [¶] [H]e went out there, hid someone’s face, 

handed a gun back to a guy who said he just shot someone in the 

face. So he had a role in that.” The court also found that 

defendant supplied the lethal weapon when he handed the gun to 

Sanford.

The trial court further determined that defendant was 

aware of the particular danger posed by the nature of the crime

because he gave Sanford the gun after having been at the 

previous attempted robbery where physical force was used.

Although the trial court found defendant was not at the scene of 

the killings in the sense of being inside the convenience store, the 

court did find defendant was in a position to facilitate the actual 

murders because he handed the gun to Sanford. Additionally, the 

4 The factors in Banks include defendant’s role in “planning

the criminal enterprise that led to one or more deaths”; 

defendant’s role in supplying or using lethal weapons; 

defendant’s awareness of “particular dangers posed by the nature 

of the crime, weapons used, or past experience or conduct of the 

other participants”; defendant’s presence at the scene of the 

killing and, if present, whether defendant was in a position to 

facilitate or prevent the actual murder and whether defendant’s 

actions or inaction played a particular role in the death; and 

defendant’s actions after lethal force was used. (Banks, supra, 61 

Cal.4th at 803.)
8

trial court found defendant played a particular role in the deaths 

because he “hand[ed] the gun over to someone who goes and uses 

it to kill someone” and then, after the use of lethal force, helped 

the shooter escape.

II. DISCUSSION

The record reveals the trial court applied the correct 

burden of proof when making its finding that defendant was a 

major participant who acted with reckless indifference to human 

life. This conclusion flows not just from the customary 

presumption that a trial court is aware of and applies governing 

law, but also from the court’s consideration of the pre-hearing 

submissions filed by the parties and the court’s “that’s true” 

comment on the record when defense counsel said the beyond a 

reasonable doubt standard of proof applied.

A. The Trial Court Applied the Correct Burden of Proof

As our summary of the factual and procedural background 

has already revealed, by the time of the trial court’s ruling on

defendant’s section 1172.6 petition the law was established that 

the court’s ruling must be based on the beyond a reasonable 

doubt standard of proof. The general rule in such circumstances 

is equally well-established: “‘a trial court is presumed to have 

been aware of and followed the applicable law. [Citations.]’” 

(People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Following this 

general rule alone would justify affirmance because there is no 

contrary evidence providing reason to suspect the trial court 

applied the wrong burden of proof.

In fact, there is more: the record affirmatively indicates the 

trial court knew of and applied the beyond a reasonable doubt 
9

standard of proof when deciding defendant’s section 1172.6 

petition. The defense’s pre-hearing memorandum submitted to 

the court argued the beyond a reasonable doubt standard of proof 

applied and the prosecution did not contend otherwise. In 

addition, defense counsel at the hearing reiterated the point, that 

the prosecution must prove major participation and reckless 

indifference beyond a reasonable doubt, and the trial court 

agreed, stating, “That’s true.” It is accordingly obvious, even 

without the customary presumption, that the trial court 

committed no legal error in deciding defendant’s section 1172.6 

petition.

B. Defendant Has Not Adequately Presented a Challenge 

to the Sufficiency of the Evidence

To properly present a question for resolution on appeal, 

certain basic things must be done. The rules of court require a

party’s brief to “[s]tate each point under a separate heading or 

subheading summarizing the point, and support each point by 

argument and, if possible, by citation of authority” as well as 

“[s]upport any reference to a matter in the record by a citation to 

the volume and page number of the record where the matter 

appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); see also

People v. Roscoe (2008) 169 Cal.App.4th 829, 840 [rules of court 

promote fairness to respondents and ‘“lighten the labors of the 

appellate [courts] by requiring the litigants to present their cause 

systematically and so arranged that those upon whom the duty 

devolves of ascertaining the rule of law to apply may be advised, 

as they read, of the exact question under consideration, instead of 

being compelled to extricate it from the mass”’].) Case law 

similarly requires arguments to be clearly presented and 
10

adequately developed for resolution; if not, they are forfeited. 

(People v. Stanley (1995) 10 Cal.4th 764, 793; Pizarro v. Reynoso

(2017) 10 Cal.App.5th 172, 179 [argument forfeited because it 

was neither presented in a separate heading nor developed with 

reasoned argument and citation to authority].)

Here, defendant’s opening brief states—without any 

heading indicating it is a separate ground raised for reversal—

that “[i]t must also be noted, though this is in many respects 

irrelevant given the Superior Court’s failure to set forth the 

burden of proof[,] that the prosecution fell far short of satisfying 

its burden.” That does not suffice to properly raise an issue; 

indeed, we take counsel at his word that the point is largely

irrelevant. Any challenge to the sufficiency of the evidence is 

accordingly forfeited.

DISPOSITION

The order denying defendant’s petition for resentencing is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J. MOOR, J.