People v. Perez CA4/3

Filed 8/1/16 P. v. Perez CA4/3 Received for posting 8/2/16

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G050927

v. (Super. Ct. No. 12WF0669)

JOSHUA PEREZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Christopher Nalls, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette Cavalier and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Joshua Perez appeals from a judgment after a jury convicted him of three counts of attempted premeditated murder, discharging a firearm with gross negligence, and vandalism and found true firearm enhancements. Perez argues his 86-years-to-life sentence constitutes cruel and unusual punishment. We disagree and affirm the judgment. FACTS One evening, “Mobbing our Professions Crew” (MOPC) gang member Julio Diaz and MOPC associates Gregorio Ariza and Christian Rodriguez were in front of Ariza’s apartment. A dark colored car stopped in front of a nearby home. Two heavyset Hispanics were in the car. Moments later, someone fired several shots at Diaz, Rodriguez, and Ariza. The gunman yelled “EBK” and ran away. MOPC and the “Every Body Killer” (EBK) gang were rival gangs, and they had recent skirmishes. Diaz suffered gunshot wounds to his torso and lower back. The next day, officers interviewed 20-year-old Perez at the police department. After waiving his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, Perez admitted he had a “beef” with Diaz and they had fought in the past. Perez initially denied any involvement in the shooting. Perez eventually admitted he “did it,” claiming he did so because Diaz was going to “smoke” him. Perez claimed he “did it all [him]self” because he was “tired of that guy.” Perez admitted he unloaded his weapon, a .45 caliber handgun, at the three victims. He disposed of the gun in the ocean; officers found .45 caliber ammunition in a box in his bedroom. Perez admitted he yelled “EBK” after the shooting. An amended information charged Perez with three counts of attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a), all further statutory references are to the Pen. Code) (counts 1-3), discharging a firearm with gross negligence (§ 246.3, subd. (a)) (count 4), street terrorism (§ 186.22, subd. (a)) (count 5), vandalism (§ 594, subds. (a) & (b)(1)) (count 6), and gang-related vandalism (§§ 186.22, subd. (d),