Filed 4/22/21 P. v. Perez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE LUIS PEREZ,

Defendant and Appellant.

 B308674

 (Los Angeles County

 Super. Ct. No. A475479)

APPEAL from an order of the Superior Court of 

Los Angeles County, John A. Torribio, Judge. Reversed. 

Eric R. Larson, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Penal Code1 section 1170.95 permits resentencing of

petitioners who could no longer be convicted of murder because of 

changes to sections 188 and 189 that became effective January 1, 

2019. The changes to sections 188 and 189 have no impact on a 

defendant who was convicted as the actual killer. As People v. 

Nash explained: “The Legislature declared . . . that it was 

necessary to ‘amend the felony murder rule and the natural and

probable consequences doctrine, as it relates to murder, to ensure 

that murder liability is not imposed on a person who is not the 

actual killer, did not act with the intent to kill, or was not a major 

participant in the underlying felony who acted with reckless 

indifference to human life.’ ” (People v. Nash (2020) 

52 Cal.App.5th 1041, 1055, italics added.) 

The trial court denied petitioner Jose Luis Perez’s section 

1170.95 petition for resentencing at the prima facie stage. The 

trial court concluded that Perez was ineligible for resentencing 

because he was the actual killer. We reverse the order because 

the record of conviction does not establish as a matter of law that 

Perez was the actual killer. We remand the case to the trial court 

to issue an order to show cause and hold a section 1170.95, 

subdivision (d)(3) hearing. 

BACKGROUND

1. Felony Complaint, Conviction, and Sentence

In a felony complaint, the People charged Perez in count 1 

as follows: “On or about August 2, 1987, in the County of 

Los Angeles, the crime of MURDER, in violation of PENAL 

CODE SECTION 187(a), a Felony, was committed by JOSE LUIS 

1 Undesignated statutory citations are to the Penal Code.
3

PEREZ, who did willfully, unlawfully, and with malice 

aforethought murder CLARENCE MUNOZ, a human being.” 

With respect to count 1, the People further alleged that 

Perez “personally used a firearm(s) within the meaning of 

Penal Code Sections 1203.06(a)(1) and 12022.5 . . . .” 

The People also alleged that “in the commission and 

attempted commission of the above offense a principal in said 

offense was armed with a firearm(s), to wit, a handgun, said 

arming not being an element of the above offense, within the 

meaning of Penal Code Section 12022(a).” 

In counts 2 through 4, the People alleged that Perez 

committed three counts of attempted murder. With respect to 

each attempted murder, the People alleged that Perez personally 

used a firearm within the meaning of sections 1203.06,

subdivision (a)(1) and 12022.5 and that a principal was armed 

with a firearm. 

Perez pleaded guilty to count 1. During the plea colloquy, 

the prosecutor asked Perez as follows: “[T]o the charge in 

Count I . . . of the Complaint that on or about August 2, 1987, in 

the County of Los Angeles you committed the crime of murder in 

violation of Penal Code Section 187(a), a felony, in the second 

degree, how do you plead?” Perez responded, “Guilty.” Perez 

admitted that he personally used a firearm within the meaning of 

section 12022.5.2 The prosecutor asked defense counsel if he 

2 When Perez committed his crime, section 12022.5 

provided in pertinent part: “Any person who personally uses a 

firearm in the commission or attempted commission of a felony 

shall, upon conviction of such felony or attempted felony, in 

addition and consecutive to the punishment prescribed for the 

felony or attempted felony of which he or she has been convicted, 

be punished by an additional term of imprisonment in the state 
4

would stipulate to a factual basis for the plea. Defense counsel 

responded: “After the consultation, the police reports, and the 

conduction of the inquiry that I’ve made, I do.” 

On a motion of the People, the trial court subsequently 

dismissed the three counts of attempted murder. The trial court 

sentenced Perez to 15 years to life and stayed a two-year 

sentence on the firearm enhancement. 

2. Petition for Resentencing

In February 2019, Perez filed a form petition for 

resentencing. He checked boxes containing the following 

information: (1) “A complaint, information, or indictment was 

filed against me that allowed the prosecution to proceed under a 

theory of felony murder or murder under the natural and 

probable consequences doctrine.” (2) “I pled guilty or no contest

to 1st or 2nd degree murder in lieu of going to trial because I 

believed I could have been convicted of 1st or 2nd degree murder 

at trial pursuant to the felony murder rule or the natural and 

probable consequences doctrine.” (3) I could not now be 

convicted of 1st or 2nd degree murder because of changes made to 

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

requested that the trial court appoint counsel for him. The trial 

court appointed counsel to represent him. 

3. People’s Opposition to the Petition for Resentencing

The People opposed the petition, arguing that Perez was 

the actual killer and therefore ineligible for relief under 

prison for two years, unless use of a firearm is an element of the 

offense of which he or she was convicted.” (Former § 12022.5, 

added by Stats. 1982, ch. 1404, § 2.1, p. 5358.)
5

section 1170.95. In addition to the felony complaint and plea 

colloquy, the People attached as exhibits a probation report and a 

report setting forth Perez’s lack of amenability to Youth 

Authority housing. 

The trial court considered only the following italicized 

statements in the probation report, finding that petitioner’s 

statements “regarding motivation” were admissible.3 The 

probation report described the offense as follows: “The defendant 

shot to death 18-year-old victim, Clarence Munoz, with a .32 

caliber handgun. [¶] On August 2, 1987, at approximately 12:30 

a.m., the defendant fired several shots at Victim Munoz, as 

defendant drove by in a vehicle in the company of two male 

Hispanics, ‘Playboys’ gang members.” As documented in the 

probation report, the probation officer interviewed Perez, who 

reported: “ ‘I really did not get involved.’ ” Defendant explained: 

The victim “had tried killing defendant’s family members. He 

pulled a gun on defendant’s brother, Martin and shot another of 

defendant’s brothers, Rafiel. If the door of defendant’s house had 

been open at the time [the] victim was armed, the victim would 

have killed the whole family.” (Italics added.) 

The trial court did not consider the report the superior 

court had requested as to whether Perez was amenable to the

training and treatment at the Youth Authority (Youth Authority 

report). That report recited: “In the instant offense defendant 

shot and killed a rival gang member in a drive-by shooting.” 

Perez “was an active member of the Playboys gang . . .” “Jose 

denies committing the murder. He states that his brother Martin 

3 On appeal, respondent does not challenge the trial court’s 

exclusion of the probation report’s description of the offense or of 

the Youth Authority report. 
6

had admitted to him that he had shot toward the victim that 

evening. Jose indicates that he pled guilty to the charge in court, 

so his brother could stay out and be with his children.” “A 

homicide detective indicated that Jose tried to put the blame of 

the instant offense on his brother, Martin, but Jose was the one 

that committed the act.” 

4. Perez’s Reply

With the assistance of counsel, Perez filed a reply brief. He 

objected on hearsay grounds to consideration of the probation 

report and the Youth Authority report. 

5. The Trial Court Holds a Hearing and Concludes 

Perez Did Not Establish a Prima Facie Case of 

Eligibility for Resentencing

The trial court held a hearing to determine whether Perez 

established a prima facie case of eligibility for resentencing. The 

trial court concluded that Perez was the actual shooter, and thus 

as a matter of law, was ineligible for resentencing. The court 

stated it “finds there is not a prima facie basis. The defendant 

was the actual killer. The petition is denied.” Perez timely 

appealed. 

DISCUSSION

A. Background on Section 1170.95

Our high court has described the law of murder: “A 

conviction for murder requires the commission of an act that 

causes death, done with the mental state of malice aforethought 

(malice). (§ 187.) Malice may be either express or implied. 

(§ 188.) Express malice is an intent to kill. [Citation.] Implied 
7

malice does not require an intent to kill. Malice is implied when 

a person willfully does an act, the natural and probable 

consequences of which are dangerous to human life, and the 

person knowingly acts with conscious disregard for the danger to 

life that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643, 

653.) Implied malice murder does not require an intent to kill. 

(Ibid.) “A person who kills unlawfully with implied malice is 

guilty of second degree murder.” (Ibid.) 

Prior to Senate Bill No. 1437, “when a person aided and 

abetted a nonhomicide crime that then resulted in a murder, the 

natural and probable consequences doctrine allowed him or her to 

be convicted of murder without personally possessing malice 

aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 845.) 

“Among other things, Senate Bill 1437 modified the requirement 

of malice aforethought for purposes of murder. Now, except for 

felony murder, ‘in order to be convicted of murder, a principal 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.’ [Citation.]” (Id. at p. 846.) “By its terms, section 

188(a)(3) [currently] permits a second degree murder conviction 

only if the prosecution can prove the defendant acted with the 

accompanying mental state of mind of malice aforethought. The 

prosecution cannot ‘impute[ ] [malice] to a person based solely on 

his or her participation in a crime.’ [Citation.]”

4 (Gentile, at 

4 Prior to enactment of Senate Bill No. 1437, section 188, 

subdivision (a) provided, in pertinent part, “For purposes of 

Section 187, malice may be express or implied. [¶] (1) Malice is 

express when there is manifested a deliberate intention to 

unlawfully take away the life of a fellow creature. [¶] (2) Malice 

is implied when no considerable provocation appears, or when the 
8

p. 846.) As noted above, Senate Bill No. 1437 does not provide 

relief to a defendant who was the actual killer. (People v. 

Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 

2020, S260410) [changes to sections 188 and 189 inapplicable to 

actual killer].) 

Senate Bill No. 1437, through new section 1170.95, permits 

retroactive relief to a petitioner convicted on a no longer valid 

theory of murder. (People v. Hernandez (2021) 60 Cal.App.5th 94, 

100.) Under section 1170.95, subdivision (c), if the petitioner 

makes a prima facie showing that he falls within the provisions 

of the statute and is entitled to relief, then the trial court “shall 

issue an order to show cause.” (§ 1170.95, subds. (b) & (c).) “ ‘A 

prima facie showing is one that is sufficient to support the 

position of the party in question.’ [Citation.]” (People v. Lewis

(2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020, 

S260598.) 

We recently explained the requirements for a petitioner to 

establish a prima facie case for resentencing under section 

1170.95. (People v. Nguyen (2020) 53 Cal.App.5th 1154

(Nguyen).) “Under section 1170.95, subdivision (a), ‘A person 

convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court 

that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply: [¶] (1) A 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

circumstances attending the killing show an abandoned and 

malignant heart. . . .” 
9

of felony murder or murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of 

first degree or second degree murder following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder. [¶] (3) The 

petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective 

January 1, 2019.’ ” (Nguyen, at p. 1164.) 

“In determining whether a petitioner has made a prima 

facie showing that he or she is entitled to relief, the ‘trial court 

should not evaluate the credibility of the petition’s assertions, but 

it need not credit factual assertions that are untrue as a matter 

of law—for example, a petitioner’s assertion that a particular 

conviction is eligible for relief where the crime is not listed in 

subdivision (a) of section 1170.95 as eligible for resentencing. 

Just as in habeas corpus, if the record “contain[s] facts refuting 

the allegations made in the petition . . . the court is justified in 

making a credibility determination adverse to the petitioner.” 

[Citation.] However, this authority to make determinations 

without conducting an evidentiary hearing pursuant to section 

1170.95, [subdivision] (d) is limited to readily ascertainable facts 

from the record (such as the crime of conviction), rather than 

factfinding involving the weighing of evidence or the exercise of 

discretion . . . .’ [Citation.]” (Nguyen, supra, 53 Cal.App.5th at 

pp. 1165–1166.) We explained that a petitioner fails to establish 

a prima facie showing if the petition is untrue as a matter of 

law.5 (Nguyen, at pp. 1165–1166.) 

5 Other cases describe the same process. (People v. 

Swanson (2020) 57 Cal.App.5th 604, 612, review granted Feb. 17, 

2021, S266262 [“The contents of the record of conviction defeat a 
10

B. The Trial Court Erred In Concluding that As a 

Matter of Law, Perez Failed to Establish a Prima 

Facie Case of Eligibility for Resentencing

Perez argues that the record of conviction does not 

establish as a matter of law that he was the actual shooter. 

Respondent retorts the fact Perez pleaded guilty to second degree 

murder and admitted a personal firearm use enhancement, 

constitutes his admission that he was guilty of murder as the 

actual killer, which remains a valid theory after Senate Bill 

No. 1437’s enactment. Respondent further asserts the charging 

document did not allege felony murder or the natural or probable 

consequences theory of murder, and Perez was the only 

defendant identified in the felony complaint. Respondent thus 

concludes Perez was not convicted under a felony murder or 

natural and probable consequences theory. Petitioner has the 

better argument.

prima facie showing when the record shows as a matter of law 

that the petitioner is not eligible for relief.”]; People v. Duchine

(2021) 60 Cal.App.5th 798, 815 [“absent a record of conviction 

that conclusively establishes that the petitioner engaged in the 

requisite acts and had the requisite intent,” the petitioner has 

established a prima facie case]; People v. Drayton (2020) 

47 Cal.App.5th 965, 982 [reversing the trial court’s order finding 

no prima facie case because the trial court engaged in factfinding 

that was not supported as a matter of law by the record of 

conviction]; but see People v. Garcia (2020) 57 Cal.App.5th 100, 

116, review granted Feb. 10, 2021, S265692 [“The trial court 

should not accept the petitioner’s assertions as true and issue an 

order to show cause if substantial evidence in the record supports 

a murder conviction under current law.”].) 
11

In his guilty plea, Perez admitted that he committed second 

degree murder and that he personally used a firearm. Perez’s 

second degree murder plea admits the elements of that offense, 

but no more.6 (People v. Wallace (2004) 33 Cal.4th 738, 749.) 

Perez’s admissions during the plea colloquy do not elucidate 

whether he committed the murder as an actual killer or as an 

aider and abettor. The plea colloquy does not reveal whether 

Perez acted with actual, implied, or imputed malice; he never 

admitted having express malice. 

Further, the prosecution could have proceeded on a natural 

and probable consequence theory without pleading a target 

offense in the felony complaint. (See People v. Prettyman (1996) 

14 Cal.4th 248, 266–268 [trial court has a sua sponte duty to 

instruct on uncharged target offenses that form a part of the 

prosecution’s theory of criminal liability and substantial evidence 

supports the theory].) Perez’s personal use of a firearm shows 

only that he used a firearm during the killing, not that he 

discharged the firearm or fired the fatal shot. For these reasons, 

we reject respondent’s argument that “[t]he accusatory pleading 

taken together with the plea hearing make it clear that appellant 

admitted to being the actual killer.” 

In contrast to Nguyen, supra, 53 Cal.App.5th at p. 1168 in 

which the preliminary hearing transcript demonstrated the 

petitioner was convicted as a direct aider and abetter, and in 

contrast to People v. Perez (2020) 54 Cal.App.5th 896, 905–906, 

review granted December 9, 2020, S265254, in which the 

6 When defense counsel requested that the prosecutor 

amend the felony complaint to reflect the agreed upon 

disposition, the prosecutor responded, “I think we just—we take 

the plea to the crime of murder in the second degree.” 
12

preliminary hearing transcript showed that the petitioner was a 

direct shooter, there was no preliminary hearing here. Although 

the plea colloquy could support a conclusion that Perez was the 

actual shooter, that conclusion is not inevitable. 

Because the record does not show as a matter of law that 

Perez was ineligible for resentencing, we must remand the case 

to the trial court to issue an order to show cause and hold a 

section 1170.95, subdivision (d) hearing. The parties may offer 

new evidence at the section 1170.95, subdivision (d) hearing 

(People v. Hernandez, supra, 60 Cal.App.5th at p. 103, which may 

include the probation report (see People v. Williams (2020) 

57 Cal.App.5th 652, 662). We express no opinion on how the 

trial court should rule at the section 1170.95, subdivision (d) 

hearing.
13

DISPOSITION

The order denying Perez’s petition for resentencing is 

reversed. Upon remand, the trial court shall issue an order to 

show cause pursuant to Penal Code section 1170.95, 

subdivision (c) and conduct a hearing pursuant to Penal Code 

section 1170.95, subdivision (d). 

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

FEDERMAN, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.