People v. Perez CA3

Filed 6/5/23 P. v. Perez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C095466

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-2009-0008121) v.

JOSE JESUS PEREZ,

Defendant and Appellant.

Defendant Jose Jesus Perez was found guilty of murder and street terrorism. (People v. Jose Jesus Perez, et al. (Sept. 25, 2012, C067040) [nonpub. opn.].) The jury also found true firearm and gang enhancement allegations. (Ibid.) The trial court sentenced defendant to an indeterminate term of 50 years to life in prison. We affirmed the convictions in an unpublished decision in 2012. (Ibid.) After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4), defendant sought resentencing under former Penal Code section

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1170.95, now Penal Code section 1172.6.1 The trial court appointed counsel and received briefing from the parties. The trial court found defendant presented a prima facie case for relief and on September 27, 2021, issued an order to show cause. A two- day hearing was then held under Penal Code section 1172.6, subdivision (d)(3), after which the trial court denied defendant’s petition. Defendant now contends, in light of recently enacted Evidence Code2 section 352.2 (added by Stats. 2022, ch. 973, § 2, effective Jan. 1, 2023), the trial court improperly considered “creative expression evidence” in denying his resentencing petition. We conclude section 352.2 does not apply and affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND On October 18 and November 5, 2021, the trial court conducted an evidentiary hearing on defendant’s petition for resentencing pursuant to Penal Code section 1172.6. At the hearing, defendant argued he was entitled to resentencing because he was convicted under a natural and probable consequences theory of murder and there was insufficient evidence he intended to kill the victim. At the Penal Code section 1172.6 hearing, the prosecution argued defendant was not entitled to resentencing because he was convicted of implied malice murder; the evidence demonstrated defendant intended to kill the victim when he aided and abetted the actual killer. To support its argument, the prosecution pointed to music that was admitted into evidence at trial, the lyrics of which included the shooting and killing of