California Court of Appeal Jul 23, 2024 No. E083097Unpublished
Filed 7/23/24 P. v. Peralez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083097
v. (Super.Ct.No. RIF147366)
ROBERT PERALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Robert Peralez, in pro. per.; and William J. Capriola, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Robert Peralez appeals the order of the Riverside County
Superior Court denying his Penal Code section 1172.6 petition for resentencing.1 We
will affirm.
BACKGROUND
A jury found defendant guilty of a number of offenses, including attempted
premediated murder. (§§ 187, subd. (a), 664.) It also found true that, in the commission
of the attempted murder, he personally and intentionally discharged a firearm
In April 2011, the trial court sentenced him to a prison term of 67 years to life.
Defendant appealed and we affirmed the judgment. (People v. Peralez (Feb. 16, 2012,
E053297) [nonpub. opn.] (Peralez I.).)
In October 2022, defendant filed a petition for resentencing in which he averred he
was charged in a manner that allowed him to be prosecuted on a theory of imputed malice
or under the natural and probable consequences doctrine. The court set a status
conference and appointed counsel for defendant. Defendant submitted written arguments
asserting his petition was facially sufficient and, therefore, the court should issue an order
to show cause and set an evidentiary hearing. The court granted the People’s request for
judicial notice of the jury instructions.
1 Defendant’s petition was filed on a section 1172.7 petition for resentencing form, which the court deemed a section 1170.95 petition. Section 1170.95 was renumbered as section 1172.6 without change in the text, effective June 30, 2022, (Stats. 2022, ch. 58, § 10). For the sake of simplicity, we refer to the provision by its new numbering. All further statutory references are to the Penal Code.
2
At the prima facie hearing, the trial court stated it had read and considered
defendant’s brief and the jury instructions given in the case. It noted “no imputed malice
theories whatsoever … were presented to [defendant’s] jury,” and found defendant
ineligible for relief as a matter of law.
Defendant timely filed notice of this appeal and we appointed appellate counsel to
represent him.
DISCUSSION
On appeal, defendant’s appointed appellate counsel filed an opening brief that sets
forth statements of the case and facts but does not present any issues for adjudication.
Counsel requests we exercise our discretion under People v. Delgadillo (2022) 14 Cal.5th
216, 232 to conduct an independent review of the record in appeals from denials of
section 1172.6 petitions and lists the following issues considered by counsel: whether
defendant was eligible for relief under section 1172.6, and whether the trial court erred
when it denied defendant’s petition without issuing an order to show cause.
Upon receipt of the opening brief, we notified defendant that (i) his counsel had
filed a brief stating no arguable issues could be found, and (ii) this court is not required to
conduct an independent review of the record but may do so in its discretion. We also
invited defendant to file any supplemental brief deemed necessary.
In response to our invitation, defendant filed a supplemental brief.2 He argues he
is entitled to relief because (i) his petition was properly completed and contained the
2 Defendant’s supplemental brief sometimes erroneously describes his conviction as one for murder. That mischaracterization does not affect our analysis of his arguments.
3
averments required by section 1172.6; (ii) he did not act with intent to kill because he
was intoxicated at the time of his crime and actually, but unreasonably, believed he was
in imminent danger of death or great bodily injury; (iii) the trial court improperly relied
on the probation officer’s report as “the sole basis for any factual determination for the
denial of relief … ”; and, (iv) it was improper to dismiss his petition based upon the jury
instructions, described by defendant as “ambiguous,” without consideration of the
People's closing arguments that he posits “could contain quotes from the natural and
probable consequences doctrine pertaining to felony murder.” We are not persuaded.
Defendant was not entitled to relief simply because his petition was properly
completed. A petition that sets forth all the elements for resentencing relief pursuant to
section 1172.6 can, and should, be denied if the record of conviction demonstrates the
defendant is ineligible for relief as a matter of law. (People v. Lewis (2021) 11 Cal.5th
952, 970, 972; People v. Mares (2024) 99 Cal.App.5th 1158, 1168.) Here, the charging
documents, the jury instructions, and the verdicts establish defendant was convicted as
the actual perpetrator of the attempted murder. As such, he is not entitled to section
1172.6 resentencing relief as a matter of law.
Contrary to defendant’s claim, the trial court did not mention the probation
officer’s report. Rather, the trial court found the jury was not instructed on natural and
probable consequences or any theory upon which malice could be imputed but was
instead instructed on single-participant attempted murder and, on defendant’s behalf, on
self-defense.
4
Nor was it improper for the court to dismiss defendant’s petition without
reviewing the People’s closing argument, which defendant posits “could contain quotes
from the natural and probable consequences doctrine pertaining to felony murder.” There
is nothing in the record to suggest the People argued any theory other than what was
presented in the charging documents and jury instructions, which did not include any
language suggesting a theory of natural and probable consequences.
Defendant’s claim that he could not have formed an intent to kill because he was
intoxicated is not properly before us. Defendant had the opportunity to make that
argument in his appeal from the judgment in Peralez I., supra, E053297, and the time to
make any additional challenge of the judgment in an appeal has long since expired. (Cal.
Rules of Court, rule 8.308(a) [notice of appeal in a criminal matter must be filed within
60 days after rendition of the judgment or the making of the order being appealed].)
DISPOSITION
The order denying defendant’s section 1172.6 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
MILLER J. CODRINGTON J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's Penal Code section 1172.6 petition, holding that the record of conviction established the defendant was the actual perpetrator of the attempted murder and thus ineligible for relief as a matter of law.
Issues
Whether the defendant was eligible for relief under Penal Code section 1172.6.
Whether the trial court erred in denying the petition without issuing an order to show cause.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the charging documents, the jury instructions, and the verdicts establish defendant was convicted as the actual perpetrator of the attempted murder. As such, he is not entitled to section 1172.6 resentencing relief as a matter of law.”