People v. Perez CA4/3

Filed 3/1/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G061724

v. (Super. Ct. No. 96CF1019)

FERNANDO QUEZEDA PEREZ, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

A jury convicted defendant Fernando Quezeda Perez of hit and run with injury (Veh. Code, § 20001, subd. (a)) but was unable to reach a verdict on the remaining 1 two counts of murder (Pen. Code, § 187, subd. (a)) and two counts of driving under the influence (Veh. Code, § 23153, subds. (a)-(b)). The trial court declared a mistrial on the latter counts. Defendant later pled guilty to two counts of second degree murder and two counts of driving under the influence. The court sentenced defendant to state prison as follows: (1) fifteen years to life on counts 1 and 2; (2) two years on count 3, which was stayed pursuant to section 654; (3) two years on count 4; and (4) two years on count 5. The sentences on counts 2, 4, and 5 were ordered to run concurrently to count 1. In April 2022, defendant filed a petition for resentencing under former 2 section 1170.95 (now § 1172.6). The trial court summarily denied defendant’s petition. Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel advised the court he was unable to find an issue to argue on defendant’s behalf and requests that we review the entire record. (People v. Wende (1979) 25 Cal.3d 436.) Consistent with Anders v. California (1967) 386 U.S. 738, appointed counsel also identified one issue to assist in our independent review: whether the court abused its discretion by denying defendant’s petition at the prima facie stage on the grounds that he could be convicted of implied malice murder after the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.). (Stats, 2018, ch. 1015, § 1.) Defendant was given the opportunity to file written argument on his own behalf, and he did. The issues defendant raises are described below.