People v. Perez CA5

Filed 7/17/24 P. v. Perez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F087004 Plaintiff and Respondent, (Super. Ct. No. PCF317388A) v.

ELIJAH ELOJIO PEREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tulare County. Stephen V. Drew, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Laura Arnold, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and Detjen, J.

In an information filed September 22, 2015, the Tulare County District Attorney charged defendant with attempted murder (count 1; Pen. Code, §§ 664, 187, subd. (a)),1 assault with a deadly weapon (count 2; § 245, subd. (a)(1)), and active participation in a criminal street gang (count 3; § 186.22, subd. (a).) The information further alleged that counts 1 and 2 were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)), that defendant suffered two prior convictions for which he served a prison term as described in section 667.5, and that defendant had been convicted of three felonies under section 1203, subdivision (e)(4). A jury convicted defendant on all counts and found true the gang enhancements. Defendant admitted the prior prison term allegation. (People v. Perez (Dec. 7, 2022, F082332) [nonpub. opn.].) Defendant was sentenced to 15 years to life on count 1, which was to run consecutively to his sentence in another case. The court also imposed and stayed (§ 654) terms of four years on count 2 plus five years for the gang enhancement, and three years on count 3. Defendant appealed, and this court issued an opinion on December 7, 2022. We reversed defendant’s conviction for active participation in a criminal street gang, as well as the gang enhancements. The prosecution was permitted to decide whether to retry that count and enhancements. We affirmed the judgment in all other respects. On June 12, 2023, defendant filed a petition pursuant to former section 1170.95. That section was renumbered to section 1172.6, which we will use going forward. Defendant asserted that he could not presently be convicted of attempted murder because of changes made to sections 188 and 189 effective January 1, 2019. (See § 1172.6, subd. (a)(3).) Defendant sought an evidentiary hearing. The People opposed the request.