People v. Perez CA5

Filed 4/14/16 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F068993 Plaintiff and Respondent, (Super. Ct. No. CF06901120) v.

JOSE ANGEL PEREZ, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge. Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Jose Angel Perez appeals from a judgment of conviction on two counts of first degree murder. The prosecution’s case was based on a theory of aiding and abetting liability. Perez argues, and the Attorney General concedes, that the trial court committed

prejudicial error by misinforming jurors as to the mental state required for aiding and abetting a premeditated murder. The trial court instructed that an aider and abettor need not act willfully, deliberately, and with premeditation in order to be guilty of first degree premeditated murder so long as the actual killer behaved with such intentions. This instruction was antithetical to the California Supreme Court’s holding in People v. Chiu (2014) 59 Cal.4th 155 (Chiu). Under Chiu, aiding and abetting liability for first degree premeditated murder is contingent upon proof of the defendant’s own mens rea. We reverse and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND This case arises from a shooting that occurred on February 1, 2006 outside of an apartment complex in southeast Fresno. There were two shooters, Perez and Sokmorn Chea, both of whom were members of a criminal street gang known as the “Asian Boyz.” Perez had been armed with a .45 caliber handgun, and Chea with an AK-47 assault rifle. Fellow gang members drove the men to the vicinity of South Peach and East Tulare Avenues, a neighborhood associated with a rival group called the “Tiny Rascal Gang,” and dropped them off near the apartment complex. It was just after midnight when Perez and Chea shot multiple rounds in the direction of the apartments. A bullet fired from Chea’s AK-47 struck and killed Nath Ouch, an innocent bystander who was in her third trimester of pregnancy. The unborn child also died. Perez fled to Mexico after the shooting and remained there for five years. Meanwhile, Chea and several accomplices were arrested and prosecuted for the victims’ deaths. Chea was found guilty of first degree murder and sentenced to life in prison without the possibility of parole. Perez was captured in 2011 and brought to trial in 2014 on charges of murder with the special circumstances of multiple murder, lying in wait, and gang-related killing (Pen. Code,1 §§ 187, 190.2, subd. (a)(3), (15), (22)). Further