People v. Perez
| Decision Date | 20 June 2019 |
| Docket Number | B284668 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS PEREZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA078620)
APPEAL from a judgment of the Superior Court of Los Angeles County, Jared Moses, Judge. Judgment of conviction affirmed; sentence vacated and remanded for further proceedings.
C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant and appellant Juan Carlos Perez of first degree murder, with firearm enhancements. Perez contends: (1) the trial court erred by denying his nonstatutory motion to dismiss the information, based on his purported mental incompetence at the preliminary hearing; (2) the evidence was insufficient to prove the murder was premeditated and deliberate; (3) the trial court erred by admitting and excluding evidence related to firearms toolmark comparison; (4) the prosecutor committed prejudicial misconduct during argument; and (5) the matter must be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements in light of Senate Bill No. 620's amendment of Penal Code section 12022.53.1 We order the judgment of conviction affirmed, but order Perez's sentence vacated and the matter remanded for resentencing.
(i) The murder
On November 21, 2009, appellant Perez attended a baby shower. Also in attendance were the victim, Noe Martinez,2 Noe's son, Ludbi Martinez, and Ludbi's wife. Ludbi and Perez were friends. Perez and Noe had been drinking together that day prior to the baby shower, and they drove to the party together. Noecontinued to drink at the baby shower. Noe and Perez conversed at the baby shower, and there did not appear to be any animosity between them. At approximately 11:00 p.m., Ludbi and his wife told Noe it was time to go home. He was "really drunk" at that point. Noe protested that he wanted to go with Perez to the El Salvadoreno restaurant. Ludbi tried to persuade him to go home, but Perez stood between them and declared that Noe was going with him.
Perez and Noe arrived at El Salvadoreno between 11:30 p.m. and midnight. There, they encountered Marlon Berganza and Marvin Gonzalez. Noe was acquainted with Berganza; they had worked at the same company. Noe and Perez began drinking with Berganza's group. At one point, Berganza pointed out an attractive woman who was wearing a short skirt. Perez threw a napkin at the woman's male companion. Berganza told him to calm down so there would be no trouble. Perez leaned close to Berganza and told him not to worry because he had his "cohete," i.e., gun, with him. During the evening there was no argument between the men, and everything seemed peaceful. Noe, however, was so drunk that he was swaying from side to side. By the end of the evening, he was "super drunk." According to Berganza, Noe was "always an affectionate drunk." He kept hugging Berganza and thanking him for his job. Perez also drank at the restaurant, but did not appear to be drunk.
At approximately 2:00 a.m. the next morning, November 22, Perez, Noe, Berganza, and Gonzalez left the restaurant and lingered for ten to fifteen minutes in the parking lot. By that point, Noe could "barely walk," was having difficulty speaking, and was wearing his jacket inside out. Perez tried to convinceBerganza and Gonzalez to go to another bar, but they declined and left Noe and Perez in the parking lot.
At 4:17 a.m. that morning, South Pasadena Police Department Officer Myles Fowlis was on routine patrol when he observed Perez's Toyota parked on Arroyo Drive in South Pasadena. The vehicle's windows were heavily fogged up with condensation. Fowlis pulled his patrol vehicle alongside the Toyota, illuminated the car with his spotlight, and rolled down his passenger side window. Perez, who was seated in the Toyota's driver's seat, partially lowered his window. Fowlis asked Perez what was going on. Perez said something in Spanish about his girlfriend. Fowlis parked behind the Toyota. As he approached, Perez exited the Toyota and faced Fowlis. He was wearing gloves, which appeared to be bloody. Before Fowlis could give any commands, Perez fled into the arroyo, which was covered with heavy brush.
Fowlis immediately radioed to report Perez's flight and then checked the Toyota's interior. Noe was seated in the front passenger seat, dead. He had been shot twice in the head.
(ii) Perez's flight and apprehension
Perez lived in an apartment on Edloft Avenue in Los Angeles. Israel Celada, whose sister was married to Perez's father, lived in an apartment in the same building on Edloft and was acquainted with Perez. At approximately 6:20 that morning, when Celada was in his car about to leave for work, Perez got in Celada's car and said he wanted a ride. He looked nervous and troubled, and appeared to be crying. He had a small plastic bag in his hands. Celada dropped Perez at a bus stop. When Perez exited the car, he told Celada that he would not see him again, and said "I put you in charge of my child."
Meanwhile, Alaska, a bloodhound, tracked Perez's scent over an equestrian trail and surface streets to an area near Perez's apartment, which was four miles from the murder scene.
On February 18, 2010, Orange County Sheriff's Deputy Mark Froome was dispatched to investigate a road rage incident, during which one of the drivers reportedly displayed a gun. At the designated location, Froome contacted Perez, who was seated in the driver's seat of a parked vehicle. Perez gave Froome a Mexican consular identification card that bore someone else's name.3 When Perez's passenger distracted Froome, Perez fled into a nearby house, despite the occupant's attempts to bar his entry. Froome gave chase, struggled with Perez, and pointed his firearm at him when he thought Perez was pulling a gun; however, Froome backed off because there were several small children in the house. Perez fled out the back door.
A police dog named Kilo located Perez in a metal shed in the backyard of a nearby home. After a struggle, officers pulled Perez from the shed. In the corner where he had been hiding was a live nine-millimeter Luger bullet, a glass methamphetamine pipe, and a baggie containing a white crystalline substance. Everything else in the shed was covered with dust; these items were not.
Perez was booked under the false name he had given Officer Froome. He was released on bail and fled to Illinois. In July 2010, a bail enforcement agent located and detained him, after Perez put up a fight. Perez was transported back to California.
(iii) The investigation
Noe had suffered two gunshot wounds to the head. One bullet entered behind his left ear, going from left to right, and penetrated his brain. The other shot penetrated the back of his head, into the brain, with a slight downward angle. The shots were fired from close range, probably less than six inches. Each was independently fatal. They were not self-inflicted. The sequence of the shots was unknown. There was no other physical trauma to Noe's body, such as fresh bruises or other wounds. There were no defensive wounds. Noe's blood alcohol level at the time of his death was two to three times over the legal limit.
The Toyota in which Noe's body was found was registered to Perez. Perez's fingerprints were found on the rear driver's side panel and the trunk lid. Noe's wallet, which contained $35, and a small ring, was still on his body.
Two spent nine-millimeter shell casings, or cartridge cases, were found in the rear passenger seat of Perez's Toyota. When a nine-millimeter semiautomatic gun is fired, the cartridge case usually ejects to the right. Phil Teramoto, a senior criminalist employed with the Los Angeles County Sheriff's Department Scientific Services Bureau, compared the two spent cartridges found in the back seat and determined they had been fired from the same gun. One of the bullet fragments recovered from Noe's body was consistent with being fired from a nine-millimeter gun.4 Teramoto also compared "magazine lip marks" on the live cartridge found in the shed with marks on one of the expendedcartridge cases and determined the live bullet had been cycled or fed through the same magazine.5
Noe's blood was found on, inter alia, the exterior driver's side door, interior driver's side door pull, steering wheel, window crank, turn signal lever, and driver's side seat belt buckle. A bloody stain on the exterior trunk had a textured pattern, consistent with a glove print.
Ludbi testified that Perez was "always armed" with a gun. Approximately a month before the murder, Ludbi observed Perez with a black nine-millimeter gun at a soccer game. Celada had twice seen a black, semiautomatic pistol in Perez's waistband. About a month before the murder, Hugo Rebolorio, who shared the Celada family's apartment, was on his way to work at approximately 4:00 a.m. when Perez—whom he barely knew—approached him from behind, said "hey, Buddy," and pointed a black, nine-millimeter semiautomatic pistol at him.
Firearms expert John Nixon disagreed with Teramoto's conclusion that the bullet found in the shed was cycled through the same gun as one of the casings found in the Toyota.6 In his opinion, magazine lip mark...
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