People v. Perry CA1/1

Filed 4/15/21 P. v. Perry CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159464 v. JOSHUA LEE PERRY, (Contra Costa County Super. Ct. No. 5-131497-0) Defendant and Appellant.

MEMORANDUM OPINION1

Defendant Joshua Lee Perry was charged with murder (Pen. Code, § 187),2 with enhancing allegations of prior serious or violent felony convictions (§ 1170, subds. (h)(3)(A), (f)), a prior “three strikes” conviction (§§ 667, 1170.12), probation ineligibility due to prior felony convictions (§ 1203, subd. (e)(4)), and that the charged offense was committed while released on bail. (§ 12022.1) Approximately one and a half years later, defendant agreed to a negotiated disposition. The prosecution moved to amend the information to

This appeal is appropriately resolved by way of memorandum opinion 1

pursuant to California Standards of Judicial Administration, section 8.1, subdivisions (1) and (3). All further statutory references are to the Penal Code unless 2

otherwise indicated.

1

add a count of voluntary manslaughter (§ 192, subd. (a)), to which defendant pled no contest. Defendant also admitted the “three strikes” enhancement allegation. The remaining charges and enhancements were dismissed, and the court sentenced defendant to 22 years in state prison.3 Defendant subsequently filed a petition for resentencing under section 1170.95, which the trial court denied on the ground section 1170.95 does not apply to convictions for voluntary manslaughter. The only issue defendant raises on appeal is whether section 1170.95 applies to defendants, like him, who pled to voluntary manslaughter to avoid going to trial for murder. Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).) Senate Bill No. 1437 (2017–2018 Reg. Sess.) also enacted section 1170.95, which authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts” so long as three