People v. Perry CA3

Filed 9/22/21 P. v. Perry CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093086

Plaintiff and Respondent, (Super. Ct. No. 08F05978)

v.

JONATHAN LAMAR PERRY,

Defendant and Appellant.

This appeal comes to us ostensibly pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant Jonathan Lamar Perry “disciplined” his girlfriend’s four-year-old son with a “whuppin” so severe the child died as a result of the injuries. The injuries included a laceration of the liver, brain hemorrhages, multiple cerebral bruises in the front and temporal lobes and the right occipital lobe of his brain, and skull fractures that caused the child’s brain to swell such that vital structures herniated in an area of the brain that

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controls respiration and his heartbeat suffered, killing the child. (People v. Perry (Nov. 28, 2012, C068456 [nonpub. opn.].) A jury convicted defendant of second degree murder (count 1; Pen. Code, § 187, subd. (a); undesignated statutory references that follow are to the Penal Code), and assault resulting in the death of a child under age eight (count 2; § 273ab). The jury also convicted defendant of felony child abuse as against his girlfriend’s three-year-old son for separate acts of abuse (count 3; § 273a, subd. (a)). (People v. Perry, C068456, supra.) The trial court sentenced him to a term of 25 years to life for the assault resulting in death of a child, imposed and stayed under section 654 a 15 year to life sentence for second degree murder, plus a four-year term for child abuse. In July 2020, defendant filed a petition for resentencing under section 1170.95. The court appointed counsel and the parties briefed the issue. The court denied the motion, concluding defendant was not entitled to relief as he was not tried on a felony- murder theory and defendant was the sole person who inflicted the “fatal blows”; that is, he was the actual killer, not an accomplice to a different act. Defendant appealed. Appointed counsel for defendant asked this court independently to review the record pursuant to Wende. Defendant was advised by counsel of the right to file a supplemental brief. Defendant filed a document that appears to be an attachment to a parole board hearing and includes descriptions of how his life would be impacted by commutation of his sentence, apology letters, relapse prevention plans, and plans for release. The document does not include any legal arguments or claims asserting the trial court erred in denying his section 1170.95 petition.