People v. Perez CA5

Filed 12/19/24 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F087427 Plaintiff and Respondent, (Super. Ct. No. BF131156A) v.

ANTHONY MANUEL PEREZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf, Judge. Matthew J. Smith, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Kimberley A. Donohue, Assistant Attorney General, Louis M. Vasquez, Christina Simpson, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Franson, J. and Snauffer, J.

Defendant Anthony Manuel Perez and two other individuals fired at police officers while evading arrest in a vehicle. A jury convicted Perez of two counts of first degree attempted premeditated murder and other charges. The trial court sentenced him to 30 years to life plus 47 years, eight months. Perez now appeals from the trial court’s denial of his petition for resentencing under Penal Code1 section 1172.6 at the prima facie stage. He argues the court erred in dismissing his petition based on the peace officer exception (§ 189, subd. (f)) to the malice requirement (§ 188, subd. (a)(3); § 189, subd. (e)). Under this exception, if a defendant participates in a felony in which a peace officer dies while performing their duties, the prosecution need not prove the defendant acted with malice to convict him of murder. But this exception applies only to murder, not attempted murder. The People concede that the court erred in dismissing Perez’s petition at the prima facie stage as he was convicted of attempted murder and the jury was instructed that he could be convicted on a now-invalid natural and probable consequences theory. We accept the People’s concession, and will reverse and remand for further proceedings. PROCEDURAL BACKGROUND “Following a jury trial, appellant Anthony Manuel Perez was convicted of two counts of attempted premeditated murder of a peace officer (counts 1 & 2), two counts of assault upon a peace officer with a semiautomatic firearm (counts 3 & 4), two counts of unlawful possession of a firearm by a criminal street gang member (counts 7 & 11), and one count of possession of a stolen vehicle (count 8). With respect to counts 1, 2, 3, 4, 7, and 8, the jury found the offenses were committed for the benefit of a criminal street gang within the meaning of Penal Code section 186.22, subdivision (b)(1). With respect to counts 1 through 4, the jury found appellant was a principal in the offenses and at least