Filed 5/13/22 P. v. Perez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Jose Eduardo Perez appeals a stipulated 26-year sentence imposed after he pleaded no contest to voluntary manslaughter and assault with a firearm, with special allegations that he personally used a firearm during the offenses and that he committed them for the benefit of a criminal street gang. Upon defendant’s timely appeal, we appointed counsel to represent him in this court. Appellate counsel filed a brief stating the case and facts but raising no issues. We notified defendant of his right to submit written argument on his own behalf, and he has not done so.

We have reviewed the entire record to determine if there are any arguable appellate issues. (People v. Wende (1979) 25 Cal.3d 436, 440–441.) We include here a brief description of the facts and procedural history of the case as well as the conviction and punishment imposed. (People v. Kelly (2006) 40 Cal.4th 106, 123–124.) Finding no arguable issue, we will affirm the judgment.

• I. Trial Court Proceedings

According to defendant’s allocution at sentencing, he fired seven bullets from a 0.380 caliber firearm at two men on a street in San Jose in October 2012. One bullet struck one of the men and ultimately caused his death. The two men were standing on the opposite side of the street, were not armed, did not provoke defendant, and did not pose a threat. Defendant was 16 when he killed the man.

Defendant was initially charged directly in adult court in 2012 with murder (Pen. Code, § 187), with an allegation that he personally and intentionally discharged a firearm (Pen. Code, § 12022.53, subd. (d); unspecified statutory references are to the Penal Code.) It appears the matter was transferred to juvenile court in late 2016 after passage of Proposition 57, based on a notation in a November 2016 minute order; the record does not contain the order finding defendant unfit for juvenile adjudication and transferring the matter back to adult court. After multiple amended complaints and a preliminary hearing, defendant was held to answer and charged by information in 2020 with murder (§ 187; count 1), attempted murder (§§ 187, 664; count 2), and discharging a firearm at an inhabited dwelling (§ 246; count 3). As to counts 1 and 2, the information alleged defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivisions (b) through (d). And as to all three counts, the information alleged defendant committed the crimes for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1)(C).)

As part of a negotiated disposition, the prosecution orally amended the information to add two new counts: voluntary manslaughter (§ 192, subd. (a); count 4) and assault with a firearm (§ 245, subd. (a)(2); count 5), with the same gang and firearm allegations as to both new counts. In exchange for a sentence of 26 years in prison, defendant pleaded no contest to counts 4 and 5 and admitted the associated special allegations. At sentencing, the parties agreed to a further amendment to substitute a different firearm allegation (§ 12022.5, subd. (a)) for counts 4 and 5 because the original allegation did not apply to the offenses charged in those counts; defendant admitted the new firearm allegations.

The trial court sentenced defendant as agreed to 26 years in prison, consisting of the middle term of six years for voluntary manslaughter (§§ 192, subd. (a); 193, subd. (a)), the upper term of 10 years consecutive for the firearm enhancement (§ 12022.5, subd. (a)) and 10 years consecutive for the gang enhancement (§ 186.22, subd. (b)(1)(C)). The court imposed concurrent sentences for count 5 and its firearm enhancement, and struck punishment for that count’s gang enhancement (§ 1385) at the prosecution’s request. The court dismissed the remaining counts and special allegations on the prosecution’s motion. The court imposed a $400 restitution fine (§ 1202.4, subd. (b)(1)) and a suspended $400 parole revocation fine (§ 1202.45); an $80 court operations assessment (§ 1465.8); a $60 court facilities funding assessment (Gov. Code, § 70373); and a $129.75 criminal justice administration fee to the arresting agency (Gov. Code, § 29550, Gov. Code former §§ 29550.1–29550.3).[1] The court ordered defendant to pay $4,711.11 to the California Victim Compensation Board. Defendant received 3,386 days of presentence custody credit, based on 2,945 actual days and 441 days’ conduct credit (§ 2933.1).

We have reviewed the entire record and find no arguable issue.

• II. Disposition

The judgment is affirmed.

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Grover, J.

WE CONCUR:

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Greenwood, P. J.

____________________________

Lie, J.

H048821 - The People v. Perez

[1] Defendant’s appellate counsel successfully moved in the trial court to vacate the criminal justice administration fee based on a change in the law. (Gov. Code, § 6111.) We take judicial notice of the trial court’s December 1, 2021 order granting the motion.