Filed 12/6/21 P. v. Perna CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

DEBORAH ANN PERNA,

 Defendant and Appellant.

 G060077

 (Super. Ct. No. 02NF3143)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Maria D. 

Hernandez, Judge. Affirmed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearance for Plaintiff and Respondent.

* * *
2

This is an appeal from a trial court’s denial of defendant Deborah Ann 

Perna’s petition to vacate her murder conviction and to be resentenced. (Pen. Code, 

§ 1170.95.)1 Perna’s appointed counsel found no arguable issues. (See People v. Wende

(1979) 25 Cal.3d 436 (Wende).) Perna filed a supplemental brief.

Because a jury could not have found the special circumstance charged in 

this case to be true without finding that Perna had the intent to kill, we affirm the trial 

court’s order denying her section 1170.95 petition.

I

FACTS

We briefly summarize the relevant facts from our prior opinion in this case, 

People v. Perna (July 23, 2007, G036905) [nonpub. opn.] (Perna).) “The victim, David 

Montemayor, managed a trucking company in Rancho Dominguez. He held a 45 percent 

interest in the company. His father held the other 55 percent. It appeared Montemayor 

was stealing from the company and operating a side business under the table. A rumor 

spread through the company that Montemayor had thousands of dollars in cash stored in a 

coffee can at his house.

“Montemayor’s father hired defendant, who is his daughter and

Montemayor’s sister, to try to rein in Montemayor. Defendant repeatedly confronted

Montemayor over the company’s finances and his stealing. The confrontations were

heated. They would scream and swear at each other. . . .” (Perna, supra, G036905.)

“Montemayor left his Buena Park home for work one morning in October

2002. Although he made it to work, unlocking a door, he was gone before the first

employee arrived. Instead, he was back in Buena Park, driving toward his house, with a

blue truck following him. Montemayor, whose wife and children were still at home,

1

Subsequent statutory references are to the Penal Code.
3

drove past his house and got out of his vehicle. Two men also got out of the car, and

began screaming at Montemayor. Montemayor pleaded with them. The men shot

Montemayor in the head, killing him.

“The men drove off with a third man in the blue truck. Bystanders notified

the police, who pursued and ultimately apprehended the men. The men were Pacoima

Flats gang members. . . .” (Perna, supra, G036905.)

“Their blue truck contained gang graffiti, including the word ‘Droopy,’ the 

moniker of a senior Pacoima Flats gang member named Anthony Navarro. One of the 

gang members dropped a cell phone belonging to Navarro’s girlfriend. The cell phone 

had been used to place several calls that morning to a telephone registered to someone 

with the same address as Navarro.” (Perna, supra, G036905.) That turned out to be 

Edelmira Corona, a woman who had worked with Perna at the trucking company. (Ibid.) 

“Corona took a disability leave in September 2002. An agency that provided child care 

to Corona called the trucking company to verify her employment. Montemayor refused to 

do so, temporarily depriving Corona of child care.” (Ibid.)

“Police later searched Navarro’s car. They found a note written on

stationary used at the trucking company. The note had Montemayor’s address and

telephone number written on it in defendant’s handwriting.” (Perna, supra, G036905.)

Perna “told her niece that one of the ‘guys who had shot my uncle Dave’

looked like the man in a photograph on Corona’s desk. The niece asked whether 

defendant had told this to the police. Defendant stated she had not, explaining 

Montemayor had interfered with Corona’s disability benefits. The niece encouraged 

defendant to contact the police, noting Corona had a motive to kill Montemayor. 

Defendant replied, ‘even if [Corona] was involved, look what [Montemayor] did to her.’

She stated she gave the police a list of the trucking company’s employees without 

Corona’s name on it. Defendant made her niece swear not to tell anyone about Corona or 

their conversation.” (Perna,supra, G036905.)
4

Corona turned herself in. The police arranged for her to make recorded 

calls to Perna. “Corona told defendant the police had arrested Navarro and found 

defendant’s handwritten note. Defendant asked Corona what she was talking about, and 

denied having anything to do with Montemayor’s death. Defendant asked Corona what 

telephone she was using. When Corona stated she was using a telephone at someone’s 

house, defendant replied, ‘Mira. Goddammit, don’t say what you said to me.’ She later 

told Corona, ‘Shut up. Shut up. You know nothing. F[–].’ Defendant told Corona she 

would call Corona back ‘from the car,’ placing the call to Corona’s cell phone.

“When defendant called Corona back, she suggested an explanation why

Navarro had the note. Defendant stated, ‘There’s lots of papers. Anybody could’ve got

papers from the trash from anyway [sic], okay?’ Defendant told Corona, ‘You’re not

gonna say nothing, Mira.’ She repeated that anyone could have pulled the note out of the

trash. Defendant instructed Corona, ‘You can’t say shit. You don’t know shit.’ She then 

asked, ‘You can’t . . . you think they can tap the cell phones?’” (Perna, supra, 

G036905.)

As relevant here, Perna was charged with one count of first degree murder 

during the commission or attempted commission of a robbery. (§§ 187, subd. (a), 190.2, 

subd. (a)(17)(A).)

During trial, Corona testified against Perna. “She stated defendant asked 

Corona in June 2002 whether she knew anyone who would kill Montemayor. Corona 

said she did not know anyone who would do that. Defendant asked, ‘Can’t the guy with 

the tattoos do it?’ Defendant gave Corona a note with Montemayor’s name and address 

on it to give to the man. Corona replied that the man with the tattoos would not kill 

Montemayor. Corona left the note in her desk.

“According to Corona, she later arranged for Navarro to come to the

trucking company to sell methamphetamine to defendant. After meeting Navarro,

defendant asked Corona whether Navarro would kill Montemayor in exchange for the
5

cash hidden in Montemayor’s house. Defendant picked up the note from Corona’s desk

and gave it to her so Corona could give it to Navarro. Corona passed along defendant’s

offer to Navarro. She later gave the note to Navarro and reiterated defendant’s offer.

Navarro told Corona he would kill Montemayor.” (Perna, supra, G036905.)

“When Corona learned the police were looking for her in early October

2002, she called defendant to find out why. Defendant told her Montemayor had been

killed. Defendant warned Corona the police had taken her possessions from the trucking

company.” (Perna, supra, G036905.)

The jury found Perna guilty of first degree murder and returned a true 

finding on the robbery murder special circumstance allegation. “The court sentenced 

defendant to life in state prison without the possibility of parole.” This court affirmed the 

judgment. (Perna, supra, G036905.)

In August 2019, Perna filed a petition for resentencing pursuant to section 

1170.95. She alleged that she “was charged as an aider and abettor. It is clear the 

prosecution proceeded under a felony murder theory and felony murder is the only basis 

for Petitioner’s murder conviction since the jury found true the special circumstance that 

the murder was committed during an attempted robbery.” Perna asserts she “did not 

evince reckless indifference to human life,” because “mere knowledge a codefendant is 

armed is insufficient to prove reckless indifference.” The district attorney opposed the 

petition. Perna was represented by counsel, who filed briefs on her behalf.

In October 2020, the trial court denied the petition, finding that Perna had 

not demonstrated a prima facie case for relief. The court reasoned that since the true 

finding on the robbery special circumstance required the jury to find that Perna had the 

intent to kill, she was ineligible for relief. Perna now appeals.
6

II

DISCUSSION

A. Procedures for Wende Review

When appointed counsel is unable to identify any arguable issues on 

appeal, a court independently reviews the record for arguable issues. (Wende, supra, 25 

Cal.3d at pp. 441-442.) Generally, “an arguable issue on appeal consists of two elements. 

First, the issue must be one which, in counsel’s professional opinion, is meritorious. That 

is not to say that the contention must necessarily achieve success. Rather, it must have a 

reasonable potential for success. Second, if successful, the issue must be such that, if 

resolved favorably to the appellant, the result will either be a reversal or a modification of 

the judgment.” (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

When appointed counsel files a Wende brief, the appellant has the right to 

file a supplemental brief raising his or her own contentions. (Wende, supra, 25 Cal.3d at 

p. 440.) When “the defendant has filed supplemental contentions” and the judgment is 

affirmed on appeal “the appellate court necessarily must have considered and rejected 

those contentions.” (People v. Kelly (2006) 40 Cal.4th 106, 120.) In these situations, the 

“opinion must reflect the contentions and the reasons that they fail.” (Ibid.) However, a 

“decision does not require an extended discussion of legal principles. [Citations.] 

Moreover, a recitation of each of the defendant’s assertions will not be necessary in all 

cases; the purposes of the constitutional requirement [for a written decision] may in some 

circumstances be satisfied by a summary description of the contentions made and the 

reasons they fail.” (Id. at p. 121.)

This court recently held “that when an appointed counsel files a 

Wende brief in an appeal from a summary denial of a section 1170.95 petition, a Court of 

Appeal is not required to independently review the entire record, but the court can and 

should do so in the interests of justice.” (People v. Flores (2020) 54 Cal.App.5th 266, 

269; compare People v. Cole (2020) 52 Cal.App.5th 1023, 1028 [“this court has the duty 
7

to address any issues raised by the defendant but otherwise may dismiss the appeal 

without conducting an independent review of the record”].)

B. Senate Bill No. 1437

As amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.), section 189, 

subdivision (e), states: “A participant in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable for murder only if one of 

the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was 

not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, 

induced, solicited, requested, or assisted the actual killer in the commission of murder in 

the first degree. [¶] (3) The person was a major participant in the underlying felony and 

acted with reckless indifference to human life . . . .”

Generally, a defendant who unlawfully kills with malice aforethought is 

guilty of a murder. (§ 187.) “For purposes of Section 187, malice may be express or 

implied.” (§ 188, 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), 

italics added.)

A person may be convicted of crimes as a direct perpetrator, or as an aider 

and abettor. (§ 31.) An aider and abettor can be held liable for crimes that were 

intentionally aided and abetted (target offenses); an aider and abettor can also be held 

liable for any crimes that were unintentional but were reasonably foreseeable (nontarget 

offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1462-1463.) Aider and abettor 

liability for intentional crimes is known as “direct” aider and abettor liability; aider and 

abettor liability for unintentional crimes is known as the ““‘natural and probable 

consequences” doctrine.’” (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)

A participant in an underlying felony may also be held liable for murder 

under the felony murder rule. Under the former first degree felony murder rule, a 
8

participant could be convicted of murder if the victim was killed during the commission 

of a predicate felony, regardless of whether the participant had the intent to kill. (See 

People v. Cruz (2020) 46 Cal.App.5th 740, 759-760.)

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “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.” (Stats. 2018, ch. 

1015, § 1, subd. (f).)

Senate Bill No. 1437 “amended sections 188 and 189 and created new 

section 1170.95. The amendments to sections 188 and 189 together change the felony 

murder rules and the ‘natural and probable consequences theory’ when convicting a 

participant in a felony for murder, but who did not actually kill the victim.” (In re White

(2019) 34 Cal.App.5th 933, 937, fn. 2.) Eligible persons can petition to dismiss their 

prior murder convictions and be resentenced if they were convicted under an accomplice 

liability theory of murder that is no longer valid. (§ 1170.95.)

Procedurally, there are multiple steps in a petition under section 1170.95. 

First, the petitioner must include a declaration that states he or she is eligible for relief, 

the petition must also include the case number, date of conviction, and state whether the 

petitioner requests appointment of counsel. (§ 1170.95, subd. (b)(1)(A)-(C).)

If the petition complies with these requirements, the court appoints counsel. 

(People v. Lewis (2021) 11 Cal.5th 952 (Lewis).) The court then evaluates the petition to 

determine if it makes a prima facie showing that relief is available, and if so, it issues an 

order to show cause. (§ 1170.95, subd. (c).) At the prima facie stage, the court may use the 

record of conviction to determine if the petitioner qualifies for relief. (Lewis, at pp. 970-
9

971.)

2

 Trial transcripts and jury instructions are both part of the record of conviction.3

(People v. Daniel (2020) 57 Cal.App.5th 666, 676-677; People v. Brimmer (2014) 230 

Cal.App.4th 782, 799-801.)

C. The True Special Circumstance Finding Required Intent to Kill

Perna argues that because she was charged with murder on a felony murder 

theory, she is entitled to an evidentiary hearing on whether she was a major participant in 

the crime. The trial transcript shows the prosecution argued two theories of murder: 

conspiracy and felony murder. She was also charged with the special circumstance of 

murder in the commission of a robbery, which is a finding separate from and additional to 

the felony murder charge.

The typical pattern instruction for the special circumstance finding that was 

used at the time of Perna’s trial, CALJIC No. 8.80.1, stated two theories under which the 

special circumstance could be found true for an aider and abettor. Those theories were

aiding and abetting with “the intent to kill,” and alternatively, aiding and abetting with 

“reckless indifference to human life and as a major participant in the commission of the 

crime.”

But here, as the jury instructions show, the court modified the instruction to 

give only the intent to kill portion, not the major participant portion. The entire 

instruction given to the jury was as follows:

“If you find the defendant in this case guilty of murder of the first degree, 

you must then determine if one or more of the following special circumstances are true or 

2

Perna seems to imply that the prosecutor, in opposing her petition at the prima facie 

stage, offered new evidence, but does not state what that evidence was. We cannot 

identify any new evidence the prosecutor offered or the trial court considered.

3

Counsel identified the use of the jury instructions as a “possible issue[],” but pursuant to 

Lewis, we find no error. (Lewis, at pp. 970-971.)
10

not true: [¶] . . . Murder in the Commission of [a] Robbery. [¶] The People have the 

burden of proving the truth of a special circumstance. If you have a reasonable doubt as 

to whether a special circumstance is true, you must find it to be not true.

“If you find that a defendant was not the actual killer of a human being, you 

cannot find the special circumstance to be true unless you are satisfied beyond a 

reasonable doubt that: [¶] . . . such defendant with the intent to kill aided, abetted, 

counseled, commanded, induced,solicited, requested, or assisted any actor in the 

commission of the murder in the first degree[.] [¶] In order to find a special 

circumstance alleged in this case to be true or untrue, you must agree unanimously.”

(Italics added.) The reckless indifference as a major participant portion of the instruction 

was stricken entirely. This instruction was included in a set of instructions marked as 

“given.” The top of the page of this particular instruction indicates is was “Given as 

Modified” and is stamped with the trial judge’s signature.

The prosecution also stated during closing arguments that for the jury to 

find the special circumstance allegation true, they must find Perna acted with the intent to 

kill. Accordingly, based on the argument and the specific jury instructions in this case, 

the true special circumstance finding required a finding of intent to kill. The jury could 

not otherwise have found the special circumstance true. No inquiry is therefore necessary 

into whether Perna had reckless indifference to human life as a major participant in the 

crime.

Perna further asserts that recent case law addressed the issue of accomplice 

liability as a “major participant” supports her claim that she has made a prima facie 

showing, pointing to People v Banks (2015) 61 Cal.4th 788, and People v Clark (2016) 

63 Cal.4th 522. But as Perna admits, these cases only apply in situations where “an 

accomplice . . . lacks the intent to kill.” Because the jury was required to find she 

harbored the intent to kill in order to find the special circumstance true, this line of 

authority is inapplicable here.
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That Perna had the intent to kill was part of the record of conviction. 

Section 1170.95 does not permit relief in such cases. Senate Bill No. 1437 was adopted, 

in part, “to ensure that murder liability is not imposed on a person who . . . did not act 

with the intent to kill.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The determination that 

Perna had the intent to kill is final and precludes relief. Accordingly, the trial court did 

not err by denying the petition.

III

DISPOSITION

The order is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MARKS, J.*

*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, 

section 6 of the California Constitution.