Filed 1/17/24 P. v. Perry CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

TYIERRE CHRISTIAN PERRY,

Defendant and Appellant.

 D081695

 (Super. Ct. No. SCD202276)

APPEAL from an order of the Superior Court of San Diego County, 

Theodore M. Weathers, Judge. Affirmed.

Robert L.S. Angres, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

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

Attorney General, Charles C. Ragland, Assistant Attorney General,

A. Natasha Cortina, Felicity Senoski and Christine Levingston Bergman,

Deputy Attorneys General for Plaintiff and Respondent.
2

INTRODUCTION

Tyierre Christian Perry appeals the order denying his Penal Code 

section 1172.61 petition for vacatur and resentencing on his 2010 first degree

felony murder conviction. The trial court denied the petition without holding 

an evidentiary hearing, finding Perry was ineligible for relief as a matter of 

law because the record of conviction established he was the actual killer. We 

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2006, Spencer Watts was fatally killed with a single gunshot 

wound to the back.2 The autopsy showed the bullet entered Watts’s back and 

traveled through his right lung and heart. The People charged Perry with 

Watts’s murder. 

At trial, the People introduced evidence that Watts drove his car to a 

parking lot, with his friend Keenan Wheeler in the front passenger seat, to 

sell Ecstasy pills. Perry and a second male entered the back seat of Watts’s

car. Watts handed Perry the pills and asked for payment. Perry took the 

pills but pulled out a gun. He then told his companion to go through 

Wheeler’s pockets; the companion took $20 from Wheeler. When Perry tried 

to go through Watts’s pockets, Watts resisted and put the car in reverse. 

1 All further undesignated statutory references are to the Penal Code. 

Perry filed his petition under former section 1170.95. Effective June 30, 

2022, the Legislature renumbered section 1170.95 as section 1172.6, with no 

substantive change in text. (Stats. 2022, ch. 58, § 10.) We refer to the statute 

throughout as section 1172.6. 

2 The following summary of the factual and procedural background is 

taken from this court’s unpublished opinion in People v. Perry (January 31, 

2012, D057006) [nonpub. opn.] (Perry). We previously granted Perry’s

unopposed request for judicial notice of the record from that appeal. 
3

Perry’s companion jumped out of the car and told Perry, “Shoot him.” Perry 

immediately fired one shot into Watts’s back, got out of the car, and fled with 

his companion. 

The jury convicted Perry of the first degree felony murder (§ 187, 

subd. (a)) and attempted robbery (§§ 664/211) of Watts. As to both offenses,

the jury found Perry intentionally and personally discharged a firearm and 

proximately caused Watts’s death (§ 12022.53, subd. (d)) (“section 

12022.53(d)”).3 Perry was sentenced to a total term of 50 years to life for the 

murder conviction and the associated section 12022.53(d) enhancement.4 We 

affirmed the judgment of convictions in Perry, supra, D057006. 

In May 2022, Perry filed a pro se form petition to vacate his murder 

conviction and be resentenced pursuant to section 1172.6. He checked the 

boxes stating he was prosecuted under a theory of felony murder, murder 

under the natural and probable consequences doctrine, or other theory of 

imputed malice; he was convicted of murder following a trial; and he could 

not now be convicted of murder because of the legislative changes to sections 

3 The jury also found true that Perry personally used a firearm 

(§ 12022.53, subd. (b)) and intentionally and personally discharged a firearm 

(§ 12022.53, subd. (c)) in the commission of the murder and attempted 

robbery of Watts. It acquitted Perry of the robbery of Watts (§ 211), while 

convicting him of the robbery of Wheeler (§ 211) and finding true the 

associated firearm allegations under section 12022.53, subdivisions (b) and

(c).

 

4 The court imposed but stayed a two-year term on the attempted 

robbery of Watts pursuant to section 654. It also imposed a concurrent 

determinate term of 23 years for the robbery of Wheeler, consisting of three 

years on the robbery and 20 years on the associated section 12022.53, 

subdivision (c), enhancement. 
4

188 and 189 made effective January 1, 2019. He also requested the 

appointment of counsel.

The People filed a response to the petition, asserting Perry was 

ineligible for resentencing as a matter of law because the jury convicted Perry 

of murder under the felony murder rule as the actual killer, not an 

accomplice, as evidenced by the jury’s true finding on the section 12022.53(d) 

allegation.

Perry, now represented by the public defender, filed a reply to the 

People’s response. The reply said nothing specific about Perry’s case and was 

silent as to the People’s argument he was ineligible for relief as the actual 

killer in a felony murder. Instead, the reply set forth a generalized 

discussion of the requirements for stating a prima facie case for relief under 

section 1172.6 and the People’s burden of proof at an evidentiary hearing.

At the prima facie review hearing, the trial court agreed with the 

People that the record of conviction established Perry was the actual killer 

and denied Perry’s petition for resentencing without issuing an order to show 

cause. 

DISCUSSION

I.

Section 1172.6

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Senate Bill 1437) altered the substantive law on accomplice liability for 

murder. First, it significantly narrowed the scope of California’s felony 

murder rule by adding section 189, subdivision (e). (Stats. 2018, ch. 1015, 

§ 3; see People v. Strong (2022) 13 Cal.5th 698, 707−708 (Strong).) Section 

189, subdivision (e), provides that a defendant is liable for felony murder only 

if he (1) was the actual killer; (2) was not the actual killer but, with the intent 
5

to kill, acted as a direct aider and abettor; or (3) was a major participant in 

the underlying felony and acted with reckless indifference to human life. 

(See Strong, at p. 708.) 

Second, Senate Bill 1437 also amended section 188 to impose a new 

requirement that, except in cases of felony murder, a principal in the crime of 

murder can only be convicted where he acted “with malice aforethought,”

and “[m]alice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3); see People v. Curiel (2023) 15 

Cal.5th 433, 449 (Curiel).) “One effect of this requirement was to eliminate 

liability for murder as an aider and abettor under the natural and probable 

consequences doctrine.” (Curiel, at p. 449.) 

Third, Senate Bill 1437 established a procedure to allow defendants 

who could not have been convicted under current law to petition the 

sentencing court to vacate their murder conviction and resentence them on 

any remaining counts. (§ 1172.6, subd. (a); Curiel, supra, 15 Cal.5th at 

pp. 449–450.) A person convicted of murder must file a petition containing a 

declaration that all requirements for eligibility are met, including (1) “A 

complaint, information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory 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 . . . .”; (2) “The petitioner was convicted of 

murder . . . following a trial or accepted a plea offer in lieu of a trial at which 

the petitioner could have been convicted of murder . . . .”; and (3) “The 

petitioner could not presently be convicted of murder . . . because of changes 

to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, 

subd. (a)(1)−(3).) 
6

Upon receiving a petition that contains all the required information, 

the trial court must appoint counsel to represent the petitioner if one is 

requested. (§ 1172.6, subd. (b)(3); see People v. Lewis (2021) 11 Cal.5th 952,

963 (Lewis).) If, after the parties have had an opportunity to submit 

briefings, the court determines the petitioner has made a prima facie case for 

relief (§ 1172.6, subd. (c)), it must issue an order to show cause and conduct 

an evidentiary hearing (§ 1172.6, subds. (c) & (d)(1)). 

This prima facie inquiry is “limited.” (Lewis, supra, 11 Cal.5th at 

p. 971.) The trial court takes the petitioner’s factual allegations as true and 

makes a preliminary assessment whether the petitioner would be entitled to 

relief if his factual allegations were proved. (Ibid.) In making this 

preliminary assessment, “the trial court may look at the record of conviction” 

to “distinguish petitions with potential merit from those that are clearly 

meritless” (ibid.), but it may not engage in “ ‘factfinding involving the 

weighing of evidence or the exercise of discretion’ ” (id. at p. 972). “ ‘If the 

petition and record in the case establish conclusively that the [petitioner] is 

ineligible for relief, the trial court may dismiss the petition’ ” at the prima 

facie stage. (Curiel, supra, 15 Cal.5th at p. 450, italics added.) The record of 

conviction includes jury instructions, verdict forms, closing arguments and, in 

the appropriate case, prior appellate opinions in the case. (People v. 

Jenkins (2021) 70 Cal.App.5th 924, 935 (Jenkins); see Lewis, at pp. 971−972.)

II.

Perry Is Ineligible for Relief as a Matter of Law

Reviewing the appealed order de novo (People v. Harden (2022) 81 

Cal.App.5th 45, 52 (Harden)), we conclude the trial court properly denied 

Perry’s section 1172.6 petition at the prima facie stage. The record of 

conviction conclusively establishes that Perry was convicted as the actual 
7

killer in a felony murder. This makes him ineligible for resentencing as a 

matter of law. (§ 189, subd. (e)(1); Strong, supra, 13 Cal.5th at p. 710 

[“Senate Bill 1437 relief is unavailable if the defendant was . . . the actual 

killer”]; Harden, at p. 53 [“defendants convicted of felony murder are not 

eligible for relief if they were the actual killer”].)

We begin our analysis with the jury instructions. The trial court 

instructed the jury on only one theory of murder: first degree felony murder. 

This is not in dispute. At the prima facie review hearing, counsel for Perry 

conceded: “I do agree this was a felony murder case.” As to felony murder, 

the court gave both CALCRIM No. 540A,5 which applies if the defendant

committed the fatal act, and CALCRIM No. 540B,6 which applies if an 

5 As given, CALCRIM No. 540A, entitled “Felony Murder: First Degree—

Defendant Allegedly Committed Fatal Act (Pen. Code, § 189)” (italics added, 

boldface omitted) stated: 

“The defendant is charged in Count 1 with murder, under a theory of 

felony murder.

“To prove that the defendant is guilty of first degree murder under this 

theory, the People must prove that:

1. The defendant committed Robbery or Attempted Robbery;

2. The defendant intended to commit Robbery or Attempted Robbery;

AND

3. While committing Robbery or Attempted Robbery, the defendant did 

an act that caused the death of another person.

“A person may be guilty of felony murder even if the killing was 

unintentional, accidental, or negligent.

“To decide whether the defendant committed Robbery or Attempted 

Robbery, please refer to the separate instructions that I will give you on those 

crimes. You must apply those instructions when you decide whether the 

People have proved first degree murder under a theory of felony murder.

“It is not required that the person killed be the victim of the felonies.”

6 The CALCRIM No. 540B instruction, entitled “Felony Murder: First 

Degrees—Coparticipant Allegedly Committed Fatal Act (Pen. Code, § 189)” 

(italics added, boldface omitted) stated:
8

accomplice committed the fatal act during the commission of a felony which 

the defendant also committed or aided and abetted.7 

The trial court also instructed the jury with CALCRIM No. 3149 on the 

section 12022.53(d) allegation. The instruction informed the jury: “If you 

“The defendant may also be guilty of murder, under a theory of felony 

murder, even if another person did the act that resulted in the death. I will 

call the other person the perpetrator.

“To prove that the defendant is guilty of first degree murder under this 

theory, the People must prove that:

1. The defendant committed, or aided and abetted Robbery or 

Attempted Robbery;

2. The defendant intended to commit, or intended to aid and abet the 

perpetrator in committing Robbery or Attempted Robbery;

3. If the defendant did not personally commit Robbery or Attempted 

Robbery, then a perpetrator, whom the defendant was aiding and 

abetting, personally committed Robbery or Attempted Robbery;

4. While committing Robbery or Attempted Robbery, the perpetrator 

did an act that caused the death of another person;

AND

5. There was a logical connection between the act causing the death 

and the Robbery or Attempted Robbery. The connection between the 

fatal act and the Robbery or Attempted Robbery must involve more 

than just their occurrence at the same time and place.

“A person may be guilty of felony murder even if the killing was 

unintentional, accidental, or negligent.

“To decide whether the defendant and the perpetrator committed 

Robbery or Attempted Robbery, please refer to the separate instructions that 

I will give you on those crimes. To decide whether the defendant aided and 

abetted a crime, please refer to the separate instructions that I have given 

you on aiding and abetting. You must apply those instructions when you 

decide whether the People have proved first degree murder under a theory of 

felony murder.”

7 In connection with CALCRIM 540B and the underlying felony of 

robbery and attempted robbery, the jury was instructed with CALCRIM 

No. 400 Aiding and Abetting: General Principles and CALCRIM No. 401 

Aiding and Abetting: Intended Crimes.
9

find the defendant guilty of the crimes charged in Counts 1 [Murder] and 2 

[Robbery], or the lesser crime of Attempted Robbery, you must then decide 

whether, for each crime, the People have proved the additional allegation 

that the defendant personally and intentionally discharged a firearm during 

that crime causing death.” (Italics added.) The instruction told the jury it 

could find the allegation true only if the People proved: (1) “The defendant 

personally discharged a firearm during the commission of that crime”; (2)

“The defendant intended to discharge the firearm”; and (3) “The defendant’s 

act caused the death of a person.” (Italics added.)

As instructed, the jury returned verdicts finding Perry guilty of “the 

crime of Felony Murder in the First Degree” of Watts and the crime of 

attempted robbery of Watts. The jury also found that in the commission of 

Watts’s murder and attempted robbery, Perry “DID intentionally and 

personally discharge a firearm, to wit: a handgun, and proximately caused 

great bodily injury and death” to Watts within the meaning of section 

12022.53(d). (Italics added.)

Although section 12022.53(d) requires only proximate causation8 and 

not actual causation (Lopez, supra, 73 Cal.App.5th at p. 333), and 

proximately causing is not the same as personally inflicting harm (Bland, 

supra, 28 Cal.4th at pp. 335–336), the trial court did not instruct the jury on 

proximate causation. Indeed, the court did not include in CALCRIM 

No. 3149 the optional bracketed language that would have permitted the jury 

8 “A proximate cause of great bodily injury ‘ “is an act . . . that sets in 

motion a chain of events that produces as a direct, natural and probable 

consequence of the act . . . the great bodily injury or death and without which

the great bodily injury or death would not have occurred.” ’ ” (People v. Lopez

(2021) 73 Cal.App.5th 327, 333 (Lopez), quoting People v. Bland (2002) 28 

Cal.4th 313, 335 (Bland).)
10

to rely on proximate causation, or even on multiple potential causes.9 As the 

bench notes to CALCRIM No. 3149 provide, the court has a sua sponte duty 

to instruct on proximate cause and on multiple potential causes only “[i]f 

causation is at issue.” (Bench Notes to CALCRIM No. 3149, (2006 new).) 

Here there is no dispute that Watts died of a single gunshot wound,10

and the prosecutor’s theory was that Perry shot Watts during a robbery or 

attempted robbery. The prosecutor argued in closing, consistent with 

CALCRIM No. 3149, that “[Perry], and [Perry] alone, chose to pull the 

trigger”; he would not “spend a lot of time on aiding and abetting” because 

“that[ was] not [his] theory”; and he was “not for a second suggesting that the 

9 The optional bracketed language not given in CALCRIM No. 3149 

included the following:

“[An act causes (great bodily injury/ [or] death) if the (injury/ [or] death) 

is the direct, natural, and probable consequence of the act and the (injury/ [or] 

death) would not have happened without the act. A natural and probable 

consequence is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes. In deciding whether a consequence is natural 

and probable, consider all the circumstances established by the evidence.]

“[There may be more than one cause of (great bodily injury/ [or] death). 

An act causes (injury/ [or] death) only if it is a substantial factor in causing 

the (injury/ [or] death). A substantial factor is more than a trivial or remote 

factor. However, it does not need to be the only factor that causes the (injury/ 

[or] death).]

“[A person is an accomplice if he or she is subject to prosecution for the 

identical crime charged against the defendant. . . .]” 

10 We draw this fact from our prior opinion in the direct appeal. (Lewis, 

supra, 11 Cal.5th at p. 972 [“Appellate opinions . . . are generally considered 

to be part of the record of conviction.”].) In doing so, we observe our high 

court’s caution that “the probative value of an appellate opinion is 

case[-]specific, and ‘it is certainly correct that an appellate opinion might not 

supply all answers.’ ” (Ibid.) Here, there is no contention that our prior 

opinion’s summary of the autopsy evidence that Watts died of a single 

gunshot wound through his back is inaccurate. 
11

defendant was anything but the shooter. . . .” (See Jenkins, supra, 70 

Cal.App.5th at p. 935 [record of conviction may include closing arguments].) 

Thus the jury instructions and verdicts conclusively establish the jury 

found there was a killing of a human being during the course of an attempted 

robbery and that Perry personally and intentionally fired a gun causing that 

death. In other words, the jury necessarily convicted Perry under CALCRIM 

No. 540A, in which Perry committed the fatal act, and not under CALCRIM 

No. 540B, in which an accomplice committed the fatal act. (See People v. 

Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius) [jury’s true finding that 

defendant personally and intentionally discharged a firearm causing death 

within meaning of section 12022.53(d) is an implicit finding defendant was 

“ ‘actual killer’ ”]11; Harden, supra, 81 Cal.App.5th at p. 55 [jury’s true 

finding that defendant personally inflicted great bodily injury on homicide 

victim within meaning of section 12022.7, subd. (a), necessarily means jury 

determined defendant was actual killer].) As the actual killer in a felony 

murder, Perry is ineligible for resentencing under section 1172.6 as a matter 

of law. (§ 189, subd. (e)(1); see Strong, supra, 13 Cal.5th at p. 710; Harden, at 

p. 53.) 

In his opening brief on appeal, Perry contends the section 12022.53(d)

enhancement “fail[s] to show that when appellant fired the gun, he possessed 

the requisite mental state for murder.” (Italics added.) Perry does not 

11 The California Supreme Court granted review in Cornelius and held 

that matter for resolution of Lewis, supra, 11 Cal.5th 952; however, the 

Supreme Court subsequently dismissed the petition for review in Cornelius, 

remanded the matter, and deemed the case “non-citable and nonprecedential 

‘to the extent it is inconsistent with’ [the] decision in Lewis.” (People v. 

Cornelius (Oct. 27, 2021, S260410).) The trial court in Cornelius did not 

appoint counsel and denied Cornelius’s petition. (Cornelius, supra, 44 

Cal.App.5th at pp. 56–57.)
12

dispute the jury’s true finding on the section 12022.53(d) enhancement

conclusively establishes he fired the gun, nor does he challenge that this act 

resulted in Watts’s death. His focus is on whether the enhancement proves 

he acted with malice aforethought. But this focus is misplaced. 

As we have explained, the new requirement in amended section 188 

that a principle in a murder can only be convicted where he acted with malice 

aforethought expressly does not apply to felony murder. (§ 188, subd. (a)(3) 

[“Except as stated in subdivision (e) of Section 189, in order to be convicted of 

murder, a principle in a crime shall act with malice aforethought. Malice 

shall not be imputed to a person based solely on his or her participation in a 

crime.”]; Curiel, supra, 15 Cal.5th at p. 449 [“Senate Bill 1437 imposed a new 

requirement that, except in cases of felony murder, ‘a principal in a crime 

shall act with malice aforethought’ to be convicted of murder. (§ 188, 

subd. (a)(3).)” (italics added)].) “As amended by Senate Bill No. 1437, the text 

of section 189 provides no additional or heightened mental state requirement

for the ‘actual killer’ prosecuted under a felony-murder theory; it requires 

only that ‘[t]he person was the actual killer.’ (§ 189, subd. (e)(1).)” (People v. 

Garcia (2022) 82 Cal.App.5th 956, 967.)

For this reason, Perry’s reliance on People v. Offley (2020) 48 

Cal.App.5th 588 is unpersuasive. Offley was not a felony murder case. It 

involved the natural and probable consequences theory of murder in a case 

where the defendant was one of five people who participated in a gangrelated shooting into an occupied vehicle that left one person dead. (Id. at 

p. 592.) After being instructed on conspiracy and liability for the natural and 

probable consequences of co-conspirators’ crimes, the jury convicted Offley 

and his co-defendant of murder and found true a section 12022.53(d)

allegation as to each. (Offley, at p. 593.) The Offley court concluded the 
13

section 12022.53(d) finding did not “in itself preclude a petitioner from 

obtaining relief” because it did not establish the malice aforethought required 

for Offley’s murder conviction. (Id. at pp. 592, 597.) As the court explained, 

the jury could have convicted Offley while still concluding that Offley acted 

without the intent to kill. (Id. at p. 597.) Offley is simply inapposite.

Because the record of conviction conclusively establishes that Perry 

was ineligible for section 1172.6 resentencing as a matter of law, we conclude 

the trial court did not commit error by denying the petition at the prima facie 

stage.

DISPOSITION

We affirm the order denying the petition for resentencing.

DO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

CASTILLO, J.