People v. Perez CA5

Filed 5/4/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F083659 Plaintiff and Respondent, (Super. Ct. No. BF124350B) v.

JESSE PEREZ III, OPINION Defendant and Appellant.

THE COURT * APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P. J., Peña, J. and Snauffer, J.

INTRODUCTION Defendant Jesse Perez III appeals following resentencing. He argues remand for further resentencing is required for the court to exercise its recently afforded discretion under Assembly Bill No. 518 (2021-2022 Reg. Sess.), statutes 2021, chapter 441 (Assembly Bill No. 518), amending Penal Code1 section 654, and Senate Bill No. 567 (2021-2022 Reg. Sess.), statutes 2021, chapter 731 (Senate Bill No. 567), amending section 1170. The People concede defendant is entitled to remand for the court to exercise its discretion under Assembly Bill No. 518. Accordingly, the People contend we need not decide the applicability of Senate Bill No. 567, inasmuch as defendant may raise these arguments in a full resentencing proceeding on remand. We accept the People’s concession with regard to Assembly Bill No. 518 and will remand for resentencing. We do not reach defendant’s arguments regarding Senate Bill No. 567. FACTUAL AND PROCEDURAL HISTORY In this court’s opinion on defendant’s direct appeal, we described the facts leading to his convictions as follows:

“On July 18, 2008, [defendant and his co-defendant, Juan Efren Prado], both Norte[ñ]o criminal street gang members, drove around town in a pickup truck stolen from the City of Delano until they found Salvador Gandarilla, Luis [C.2 ], and brothers Carlos [R.] and Alejandro [R.] standing outside the [R.] residence. Prado got out of the truck and asked the four whether they were Sure[ñ]o gang members. Gandarilla was a founder of a local Sure[ñ]o gang, the [R.] brothers may have been former gang members, and [Luis] was not gang affiliated. After a general denial that they were gang members, Gandarilla asked, ‘What are you gonna do if we are Sure[ñ]os?’ In response, Prado reached into the truck, pulled out a long-barreled firearm, fatally shot Gandarilla, and seriously injured Carlos [R.] and [Luis]. Before he was shot, Carlos [R.] pulled a loaded flare gun