People v. Perez CA4/3

Filed 6/26/15 P. v. Perez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G049443

v. (Super. Ct. No. 11CF1208)

ILDEFONSO PEREZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Reversed with directions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent. * * *

A jury convicted defendant Ildefonso Perez of first degree murder (Pen. Code, § 187, subd. (a), count 1; all further statutory references are to this code), attempted murder (§ 664/187, subd. (a), count 2), and street terrorism (§ 186.22, subd. (a), count 3). With regard to the murder and attempted murder counts, the jury found defendant committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). With regard to the attempted murder count, the jury also found he personally used a deadly weapon (§ 12022, subd. (b)(1)). The court sentenced defendant to a total term of 35 years to life. Defendant asserts three grounds for his appeal: (1) the recent Supreme Court decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) requires reversal because the jury was improperly instructed as to the natural and probable consequences theory of aider and abettor liability; (2) the court improperly instructed the jury on mutual combat; and (3) his sentence violates the constitutional prohibition on cruel and unusual punishment. The Attorney General concurs on the first ground and we agree the argument is well taken; we therefore reverse the judgment and remand the case for defendant to either be resentenced for second degree murder or be granted a new trial. We disagree with defendant’s second contention. But because defendant was a minor at the time the crimes were committed, the court must consider this fact if defendant is resentenced; his youth requires his sentence to include a possibility for release on parole while he is still young enough to present him with an opportunity to demonstrate rehabilitation.