Filed 7/20/26 P. v. Perkins CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B340752
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA054106)
v.
ALONZO PERKINS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith L. Meyer, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kristen J. Inberg and Melanie
Dorian, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2004 a jury convicted Alonzo Perkins of the second
degree murder of Eric Martinez, the attempted willful,
deliberate, and premeditated murder of Donte Terrell, second
degree robbery, and possession of a firearm by a felon. However,
the jury found not true a special-circumstances allegation that
Martinez’s murder was committed during the commission of a
robbery. Perkins’s codefendant, Jeremy Jones, was Martinez’s
actual killer and was convicted of first degree murder.
In 2022 Perkins petitioned for resentencing under Penal
Code former section 1170.95 (now section 1172.6).1 Following
briefing and an evidentiary hearing at which no new evidence
was presented, the superior court denied the petition. The court
found that Perkins was guilty of murder as a direct aider and
abettor in the premeditated murder of Martinez with the specific
intent to kill, and he was also a major participant in a robbery
who acted with reckless disregard for human life.2
Perkins contends the jury’s not true finding on the robbery-
murder special-circumstances allegation and the jury’s failure to
convict Perkins of first degree murder precluded the superior
court from finding at the evidentiary hearing that Perkins was
guilty as a direct aider and abettor of express malice murder.
Perkins also contends the court erred in denying his motion to
exclude from the evidentiary hearing Terrell’s identification of
Perkins as a perpetrator. We affirm.
1 Further undesignated statutory references are to the Penal
Code.
2 The superior court also found Perkins was the direct
perpetrator of the attempted murder of Terrell. Perkins does not
challenge the denial of his resentencing petition with respect to
his attempted murder conviction.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
Terrell testified that on the morning of August 28, 2002, he
and his friend Martinez drove in Martinez’s white sports car to a
house on Trafford Street in Long Beach. Jones came out of the
house and spoke with Martinez for a few minutes; Martinez and
Terrell then left the area. Terrell recognized Jones from junior
high school.
Later the same morning Martinez and Terrell drove back to
the Trafford Street house, where Martinez intended to sell
marijuana. Jones was standing at the side of the house and
motioned for Martinez to come with him. Martinez left the car
running in front of the house and went with Jones, while Terrell
stayed in the car. After 10 or 15 minutes, Jones came from the
side of the house and motioned for Terrell to turn off the ignition
and come back to where Jones was standing. Terrell complied,
but halfway between the house and the garage in the back, Jones
came up behind Terrell, pulled a gun on him, and directed him
through a door into the closed garage. Jones told Terrell, “‘You
done got caught up in some of Eric’s mess. Tried to get him to
take you home, but we still here.’”
After entering the garage, Terrell saw another man (whom
he later identified as Perkins) standing behind Martinez holding
a gun. Martinez’s hands were taped behind his back. Perkins
looked at Terrell and said, “‘Somebody’s gonna die in here tonight
or today.’” Perkins taped Terrell’s hands behind his back and
took his wallet, money, cigarettes, and keys (including the keys to
Martinez’s car). Perkins “put” Terrell on the ground on his
stomach and said, “‘This is gangster.’” Terrell said, “‘[Y]ou guys
don’t have to do this. You can let us go. We won’t say anything.’”
3
Jones then “put” Martinez on the ground. Martinez said,
“‘You don’t have to do this. I can give you some money.’” Jones
said he wanted $50,000. Martinez said he did not have that
amount, and Jones responded, “‘It’s not even about the money.’”
Perkins then took Martinez’s car keys from Terrell and left the
garage for about three to five minutes. When Perkins returned,
he looked at Terrell and said, “‘It’s time to die.’” He placed a belt
around Terrell’s neck, but Terrell tucked his chin to prevent the
belt from choking him. Perkins lifted Terrell off the ground, and
the tape around Terrell’s wrists snapped. Jones then came over
and hit Terrell over the head, and Terrell fell back on the ground.
Jones and Perkins tied Terrell’s hands with speaker wire.
Jones went to Martinez and began choking him with a
shirt. Martinez was lying on his back, and Jones sat on
Martinez’s stomach and pushed down on his throat with a metal
bar for several minutes, until Martinez made a gurgling sound.
Jones then wrapped an extension cord around Martinez’s neck
and pulled on it. Martinez’s eyes had glazed over, and he had a
blank expression on his face; however, a third man entered the
garage, felt Martinez’s pulse, and said, “‘He’s not dead yet. Hurry
up. He’s almost dead.’” After the third man left the garage,
Terrell broke the wire that was tied around his hands, ran out
the door, jumped the back gate, and flagged down construction
workers, who called the police.
That afternoon Long Beach police officers responded to the
Trafford Street house, where Jones lived with his parents. They
found exercise equipment, speaker wire, an extension cord, and a
roll of duct tape inside the garage. There was a .380-caliber
handgun sitting on a bench press and blood on the floor near a
weight bar. The next day, police found Martinez’s car in
4
Compton, with Martinez’s body in the trunk and a plastic bag
over his head. Jones’s bloody palm print was found on the car’s
rear fender. An autopsy showed ligature marks on Martinez’s
neck and a laceration on his head. Martinez had died of asphyxia
and blunt force trauma to the head.
Carolyn Morris was the Jones family’s next-door neighbor
and had known Jones for 25 years. She also knew Perkins, who
had been a friend of her son Darryl for about five years. Morris
saw Perkins around the family’s Trafford Street house several
times on the morning of August 28, and at around 10:30 or
11:00 a.m. she saw Perkins driving Jones’s blue van. She later
saw a white sports car pull up in front of the Joneses’ driveway
with two people inside, and she heard Jones say, “‘C’mon back.’”
Just before the police arrived, she saw Jones drive off in the
white car, following the blue van. About 45 minutes after the
police arrived at the scene, Morris received a call from Perkins,
who asked her “what was going on around there.” Jones also
called Morris and asked what was going on at Jones’s house and
whether the police had gone into Jones’s garage.
On the day of the murder, Terrell identified Jones in a
photographic lineup, but he was unable to identify Perkins in a
separate six-pack photographic lineup. Two weeks later Terrell
was shown the same photographic lineup and was again unable
to identify Perkins. He circled photographs of two other men and
said they most resembled the second person involved in the
crime, and he made a notation that “‘if [he] could hear the
suspect’s voice in a line-up[,] that would help.’” In a separate
photographic lineup, Terrell identified the third man who entered
the garage and checked Martinez’s pulse.
5
On September 19 Terrell identified Perkins in a live lineup
at the jail. Terrell asked each participant to say, “‘Somebody’s
gonna die here tonight’” and “‘This is gangster.’” Perkins was the
only person who was in the live lineup and the earlier
photographic lineup. Terrell also testified at trial that the person
who tried to choke him had a chipped tooth, something he had
not told anyone prior to trial. The prosecutor asked Perkins to
walk in front of the jury and open his mouth “so [the jury] can see
the chip.”
Jones presented an alibi defense. Lisa Jones, the mother of
Jones’s child, testified Jones was with her on the morning of
August 28. Jones testified that when he later returned to the
Trafford Street house, he found Morris’s son Darryl was there
“with blood all over him.” Martinez’s body was in the garage with
an extension cord around his neck. Jones disposed of the body in
Martinez’s car so his parents would not find out there was a dead
body in the house. Jones had been “decent” friends with Perkins
for about eight years. Perkins did not call any witnesses.
B. The Jury Instructions, Verdict, and Sentencing
The jury convicted Perkins of the second degree murder of
Martinez (§ 187, subd. (a); count 1); the attempted willful,
deliberate, and premeditated murder of Terrell (§§ 664, 187,
subd. (a); count 2); second degree robbery (§ 211; count 3); and
possession of a firearm by a felon (§ 12021, subd. (a)(1); count 5).
The jury found true the special-circumstance allegation that
Perkins personally used a firearm in the commission of the
murder (§ 12022.53, subd. (b)) but not true with respect to the
attempted murder and robbery. As to count 1, the jury found not
true the robbery-murder special-circumstances allegation
(§ 190.2, subd. (a)(17)). The jury convicted Jones on similar
6
charges, except, as relevant here, Jones was convicted of first
degree murder on count 1. But, like Perkins, the jury found not
true the robbery-murder special-circumstances allegation.
In April 2004 the trial court sentenced Perkins to 25 years
to life on count 1 (15 years to life for the murder plus 10 years for
the firearm enhancement), plus a consecutive term of life on
count 2. The court also sentenced Perkins on counts 2 and 5 to
an aggregate consecutive sentence of one year eight months.
Perkins appealed from the judgment, and we affirmed.
(People v. Jones, (Oct. 23, 2007, B174393) [nonpub. opn.] (Jones).)
We rejected Perkins’s contention that the trial court should have
suppressed Terrell’s pretrial identification on the basis the
identification procedure, in which Perkins was the only person
who appeared in the photographic and jailhouse lineups, was
unduly suggestive in violation of his due process rights. (Ibid.)
We observed, “From the evidence in this case, it appears that
Terrell was not influenced by the photo lineup at all,” and “the
photos that Terrell circled in the photo lineup . . . appear very
similar to the photograph of Perkins from the live lineup
(arguably more so than the actual photograph of Perkins . . . in
the photo lineup).” (Ibid.)
C. Perkins’s Petition for Resentencing and the Evidentiary
Hearing
On April 14, 2022 Perkins filed a form petition for
resentencing under former section 1170.95 stating he had been
convicted of murder and attempted murder on a theory of
imputed malice and could not presently be convicted of the
offenses because of changes made to sections 188 and 189,
effective January 1, 2019. The superior court appointed counsel
for Perkins and ordered further briefing.
7
In his brief Perkins did not argue for resentencing as to the
attempted murder of Terrell. Following briefing by the parties,
the superior court set an evidentiary hearing on the petition.
In advance of the evidentiary hearing, Perkins filed a
motion to exclude Terrell’s identification of Perkins as one of the
perpetrators, arguing the pretrial identification procedures were
unduly suggestive and the identification was inadmissible under
current law, which applied to the evidentiary hearing under
section 1172.6, subdivision (d)(3).3
3 On June 24, 2024 Perkins, representing himself, filed a
handwritten amended petition for habeas corpus challenging the
identification of Perkins and arguing ineffective assistance of his
trial attorney, among other issues. Perkins attached to his
habeas petition a declaration from Mitchell L. Eisen, Ph.D., an
expert in the field of forensic identification. Eisen opined that
there were several factors undermining Terrell’s identification
and an effective defense attorney would have challenged the
identification. Perkins’s counsel did not file the Eisen declaration
in connection with the resentencing petition and suppression
motion. The superior court denied the habeas petition on July 8,
2024, finding the petition was “filled with gibberish” that “has
nothing to do with the 1172.6 petition.” Perkins’s amended
habeas petition is not relevant to this appeal. Likewise, Perkin’s
attorney did not render ineffective assistance of counsel (as
argued in this appeal) by failing to seek to admit Dr. Eisen’s
declaration in connection with the 1172.6 petition; as we discuss,
the certainty of Terrell’s identification is not relevant to this
appeal.
8
At the September 16, 2024 evidentiary hearing, in which
the superior court also considered the suppression motion, the
superior court indicated it had reviewed the trial transcript, the
parties’ briefs, and the record on appeal from Jones, supra,
B174393 (including the information, minute orders, jury
instructions, verdicts, conviction records, and our decision).
Neither party submitted additional evidence. The prosecutor
argued the evidence at trial showed Perkins was directly involved
in both the killing of Martinez and the attempt to kill Terrell, and
Perkins’s conduct showed “he’s a direct perpetrator and an aider
and abet[or] to these crimes” with “no malice imputed from
somewhere else.” Perkins’s attorney argued the jury’s not true
finding on the robbery-murder special-circumstances allegation
and second degree murder conviction meant Perkins was “not a
major participant who acted [with] reckless, indifferen[ce] to
human life,” precluding the superior court from making a finding
he was guilty of felony murder under current law. With respect
to the suppression motion, Perkins’s attorney argued the
defective identification process made Terrell’s identification
inadmissible under both constitutional due process principles and
the Evidence Code. The prosecutor responded that a
resentencing proceeding under section 1172.6 was not the proper
venue to challenge the admissibility of evidence of the
defendant’s guilt.
After hearing argument, the superior court ruled it would
“not relitigate identification,” citing People v. Palacios (2024)
101 Cal.App.5th 942 (Palacios), and it denied the suppression
motion. The court observed that it was “satisfied beyond a
reasonable doubt” as to Perkins’s identification and involvement
in the case. Further, other evidence allowed the jury to
9
determine Perkins was one of the participants, including his
behavior after the crime.
The superior court denied the petition for resentencing.
With respect to the murder of Martinez, the court stated it “was
satisfied that Mr. Perkins is guilty in count 1 of the murder of
Eric Martinez under a theory that he was a direct aider [and]
abett[or] in the first degree premeditated and deliberated
murder.” The court continued, “In addition, . . . just because the
jury found as not true . . . a special circumstance, it’s abundantly
clear to me that he was a major participant with a reckless
disregard if there was a robbery. [¶] Either way, he’s a direct
aider and abett[or]. He had specific intent and that was made
exceptionally clear to me in count 2, where . . . he was actually a
direct perpetrator to try and kill someone and with specific
intent. So one guy took one victim, [Perkins] took the other
victim, and they are working in conjunction with one another,
and they both had specific intent.” On the same date, the court
issued a written ruling reiterating its findings and denying the
petition.
Perkins timely appealed.
DISCUSSION
A. Governing Law and Standard of Review
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437), effective January 1, 2019, eliminated the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder and significantly limited the scope of the felony-
murder rule. (People v. Curiel (2023) 15 Cal.5th 433, 448-449
(Curiel); People v. Strong (2022) 13 Cal.5th 698, 707-708.)
Section 188, subdivision (a)(3), now prohibits imputing malice
10
based solely on an individual’s participation in a crime and
requires proof of malice to convict a defendant of murder, except
under the revised felony-murder rule as set forth in section 189,
subdivision (e). (Curiel, at p. 448.) Section 189, subdivision (e),
now requires the People to prove specific facts relating to the
defendant’s individual culpability: the defendant was the actual
killer (§ 189, subd. (e)(1)); although not the actual killer, the
defendant, with the intent to kill, aided or assisted in the
commission of murder in the first degree (§ 189, subd. (e)(2)); or
the defendant was a major participant in an underlying felony
listed in section 189, subdivision (a), and acted with reckless
indifference to human life as described in section 190.2,
subdivision (d) (§ 189, subd. (e)(3)). (Curiel, at p. 448.)
Senate Bill No. 775 (2021-2022 Reg. Sess.), effective
January 1, 2022, expanded the scope of potential relief by
applying Senate Bill 1437’s ameliorative changes to individuals
convicted of attempted murder and voluntary manslaughter.
(See § 1172.6, subd. (a).) The legislation also extended relief to
defendants convicted of murder under any “other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a), as amended by
Stats. 2021, ch. 551, § 2; see People v. Antonelli (2025) 17 Cal.5th
719, 725.)
Section 1172.6 provides a procedure for an individual
convicted of felony murder, murder or attempted murder under
the natural and probable consequences doctrine, or manslaughter
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if the individual could
presently not be convicted of murder, attempted murder, or
manslaughter because of changes to sections 188 and 189.
11
(Curiel, supra, 15 Cal.5th at pp. 449-450; People v. Strong, supra,
13 Cal.5th at p. 708.) If the petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the sentencing court, upon request, must appoint
counsel to represent the petitioner. (§ 1172.6, subd. (b)(3); People
v. Lewis (2021) 11 Cal.5th 952, 962-963.) If the petitioner makes
the requisite prima facie showing of entitlement to relief, the
superior court must issue an order to show cause and hold an
evidentiary hearing to determine whether to vacate the
challenged conviction and resentence the petitioner on any
remaining counts. (§ 1172.6, subds. (c) & (d)(1).)
Section 1172.6, subdivision (d)(3), provides that at the
evidentiary hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019. The admission of evidence in the
hearing shall be governed by the Evidence Code, except that the
court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially
noticed.” Further, “[t]he prosecutor and the petitioner may also
offer new or additional evidence to meet their respective
burdens.” (§ 1172.6, subd. (d)(3).)
We review the superior court’s decision to deny the petition
after an evidentiary hearing for substantial evidence but review
independently “whether the trial court misunderstood the
elements of the applicable offense.” (People v. Reyes (2023)
12
14 Cal.5th 981, 988-989; accord, People v. Taylor (2025)
108 Cal.App.5th 849, 861.)
B. Substantial Evidence Supports the Superior Court’s
Finding Perkins Was Guilty of Murder as a Director Aider
and Abettor with Express Malice
“[U]nder direct aiding and abetting principles, an
accomplice is guilty of an offense perpetrated by another if the
accomplice aids the commission of that offense with ‘knowledge of
the direct perpetrator’s unlawful intent and [with] an intent to
assist in achieving those unlawful ends.’” (People v. Gentile
(2020) 10 Cal.5th 830, 843; accord, Curiel, supra, 15 Cal.5th at
p. 463.) An “‘aider and abettor’s mental state must be at least
that required of the direct perpetrator,’ and when the crime is
murder, the ‘aider and abettor must know and share the
murderous intent of the actual perpetrator.’” (People v. Maciel
(2013) 57 Cal.4th 482, 518; accord, People v. McCoy (2001)
25 Cal.4th 1111, 1118.)
“It is well settled that [Senate Bill 1437] ‘d[id] not
eliminate direct aiding and abetting liability for murder because
a direct aider and abettor to murder must possess malice
aforethought.’” (People v. Williams (2022) 86 Cal.App.5th 1244,
1252, quoting People v. Gentile, supra, 10 Cal.5th at p. 848;
accord, People v. Vargas (2022) 84 Cal.App.5th 943, 953 (Vargas)
[“‘One who directly aids and abets another who commits murder
is thus liable for murder under the new law just as he or she was
liable under the old law.’”].) Malice “may be express or implied.”
(§ 188, subd. (a); see Gentile, at p. 844.) Malice “is express when
there is a manifest intent to kill.” (Gentile, at p. 844; see § 188,
subd. (a)(1).)
13
“Establishing aider and abettor liability ‘requires proof in
three distinct areas: (a) the direct perpetrator’s actus reus—a
crime committed by the direct perpetrator, (b) the aider and
abettor’s mens rea—knowledge of the direct perpetrator’s
unlawful intent and an intent to assist in achieving those
unlawful ends, and (c) the aider and abettor’s actus reus—
conduct by the aider and abettor that in fact assists the
achievement of the crime.’” (People v. Valdez (2012) 55 Cal.4th
82, 146; accord, People v. Reyes, supra, 14 Cal.5th at pp. 990-991.)
“[A]n aider and abettor will ‘share’ the perpetrator’s specific
intent when he or she knows the full extent of the perpetrator’s
criminal purpose and gives aid or encouragement with the intent
or purpose of facilitating the perpetrator’s commission of the
crime.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) “‘The aider
and abettor doctrine merely makes aiders and abettors liable for
their accomplices’ actions as well as their own. It obviates the
necessity to decide who was the aider and abettor and who [was]
the direct perpetrator or to what extent each played which role.’”
(People v. Gomez (2018) 6 Cal.5th 243, 279.)
“Aiding and abetting may be shown by circumstantial
evidence.” (People v. Glukhoy (2022) 77 Cal.App.5th 576, 599.)
“‘Factors to be considered by the trier of fact in determining
“whether one is an aider and abettor include presence at the
scene of the crime, failure to take steps to attempt to prevent the
commission of the crime, companionship, flight, and conduct
before and after the crime.”’” (Vargas, supra, 84 Cal.App.5th at
p. 955; accord, People v. Campbell (1994) 25 Cal.App.4th 402,
409.) “Motive is another circumstance to be considered in
determining aiding and abetting liability.” (Glukhoy, at p. 599.)
14
Substantial evidence supports the superior court’s finding
that Perkins was a direct aider and abettor with express malice.
The evidence showed that Perkins knew that Jones intended to
kill Martinez, and he intended to assist Jones in Martinez’s
killing. When Jones brought Terrell into the garage at gunpoint,
Perkins was standing behind Martinez (whose hands were
bound) holding a gun, and Perkins said that someone was going
to die that day or night. Perkins, after binding Terrell and
robbing him, put Terrell on the ground while Jones put Martinez
on the ground. Perkins said, “‘This is gangster.’” Both victims
pleaded for their lives, but Perkins declared, “‘It’s time to die.’”
Perkins began to choke Terrell with a belt, while Jones in the
same room (the garage) tried to kill Martinez by choking him
with a shirt, a metal bar, and extension cord, until Martinez was
unconscious and almost dead. Terrell avoided the same fate not
because Perkins and Jones spared him, but because he broke free
and escaped. Jones and Perkins thus acted in concert to carry
out two murders; each as an accomplice to the other’s killing or
attempted killing.
Moreover, Perkins’s conduct before, during, and after
Martinez’s killing supported a finding of aiding and abetting.
(Vargas, supra, 84 Cal.App.5th at p. 955.) As discussed, Perkins
was standing behind Martinez holding a gun when Jones entered
the garage, supporting a reasonable inference that Perkins kept
Martinez prisoner while Jones went outside to get Terrell. After
both victims were bound on the ground and Perkins announced
somebody would die, Perkins left the garage for three minutes
(with Martinez’s car keys), yet he came back to resume the
killings. Perkins knew the outcome: he was present when the
third perpetrator came in, took Martinez’s pulse, and declared
15
that they needed to hurry because Martinez was not yet dead.
The third person left the garage, but Perkins did not. Other
evidence of Perkins’s aiding and abetting included the fact he was
driving Jones’s van shortly before the murder and he took
Martinez’s car keys, supporting an inference he was involved in
moving Martinez’s body after the crime into Martinez’s trunk.
Perkins does not argue that substantial evidence did not
support the superior court’s finding he was a direct aider and
abettor of murder who acted with express malice. Instead, he
argues the superior court was precluded from finding him guilty
of first degree murder because doing so was “inconsistent with
the jury’s findings” that Perkins was guilty only of second degree
murder. This argument lacks merit.
Most significantly, the superior court did not find that
Perkins was guilty of first degree murder; rather, the court found
“he was a direct aider [and] abett[or] in the first degree
premeditated and deliberated murder of Eric Martinez.”
Substantial evidence supported the superior court’s finding that
Jones’s murder of Martinez was deliberate and premeditated
(that is, first degree) in light of the evidence that Jones
summoned Martinez to join him at the side of the house, then
directed him into the garage where Perkins tied him up and stood
behind him with a gun.
The superior court did not decide (or need to decide)
whether Perkins acted with premeditation; rather, the court
needed to decide whether Perkins had the specific intent to aid
Jones in the deliberate and premeditated murder of Martinez.
(People v. Reyes, supra, 14 Cal.5th at pp. 990-991.) The court
16
answered this question in the clear affirmative: “[He’s a direct
aider and abett[or]. He had specific intent.”4
C. The Superior Court Properly Denied Perkins’s Motion To
Exclude Terrell’s Identification
As discussed, section 1172.6, subdivision (d)(3), provides
that at the evidentiary hearing, “[t]he admission of
evidence . . . shall be governed by the Evidence Code, except that
the court may consider evidence previously admitted at any prior
hearing or trial that is admissible under current law . . . .”
(Italics added.) Two decades ago, we rejected Perkins’s
contention that Terrell’s identification was unduly suggestive
because he was the only subject who appeared in both the
photographic lineup and the jailhouse lineup. (Jones, supra,
B174393.) Perkins contends that “significant developments in
the law regarding eyewitness identification evidence” since his
trial entitle him to a second bite at the apple. We disagree.
As a general matter, “[t]he mere filing of a section [1172.6]
petition does not afford the petitioner a new opportunity to raise
claims of trial error or attack the sufficiency of the evidence
supporting the jury’s findings. To the contrary, ‘[n]othing in the
language of section [1172.6] suggests it was intended to provide
4 Because there was substantial evidence of aiding and
abetting murder with the specific intent to kill, we do not reach
the superior court’s alternative finding that Perkins was guilty of
first degree felony murder as a major participant in robbery who
acted with reckless indifference to human life. We note that the
court in making this finding was expressly addressing Perkins’s
argument that the jury’s negative finding on the special
circumstance allegation meant the jury could not have convicted
him on any theory of felony murder.
17
redress for allegedly erroneous prior factfinding. . . . The purpose
of section [1172.6] is to give defendants the benefit of amended
sections 188 and 189 with respect to issues not previously
determined, not to provide a do-over on factual disputes that
have already been resolved.’” (People v. Farfan (2021)
71 Cal.App.5th 942, 947; accord, People v. Clements (2022)
75 Cal.App.5th 276, 298 [“[I]n a section [1172.6] petition, the trial
judge isn’t charged with holding a whole new trial on all the
elements of murder. Instead, the parties will focus on evidence
made relevant by the amendments to the substantive definition
of murder.”]; see Palacios, supra, 101 Cal.App.5th at p. 954
[“resentencing hearings are not the proper forum to litigate
issues that could have been raised at trial”]; see also Curiel,
supra, 15 Cal.5th at p. 470 [“factual findings should be given
preclusive effect. The point . . . is to identify what those factual
findings are and how they relate to the elements of [attempted]
murder under a valid theory.”].)
Accordingly, although “[s]ection 1172.6, subdivision (d)(3),
contemplates that there may be some evidence that was admitted
at a former trial that would not be admissible under current law,”
it was “plainly not” the Legislature’s intent “that all
section 1172.6 hearings would effectively become new court
trials.” (People v. Cody (2023) 92 Cal.App.5th 87, 104 [rejecting
defendant’s contention that the prosecution must make a
showing of witness unavailability before former trial testimony
may be admitted at an evidentiary hearing]; accord, People v.
Davenport (2023) 95 Cal.App.5th 1150, 1159 [if § 1172.6,
subd. (d)(3), were construed to “mean[] that properly admitted
former witness testimony must once again be run through the
rigorous filter of the rules of evidence—but at a different time,
18
under different circumstances—the exception for previously
admitted testimony would be superfluous”]; see Palacios, supra,
101 Cal.App.5th at p. 952 [same].)
Moreover, Perkins has not shown how Terrell’s
identification is evidence that was “made relevant by the
amendments to the substantive definition of murder.” (People v.
Clements, supra, 75 Cal.App.5th at p. 298.) Terrell’s
identification was critical evidence that Perkins was the man in
the garage who strangled and robbed Terrell and helped kill
Martinez on the morning of August 28, 2002; the identification
has no bearing on whether Perkins was convicted based on a
now-invalid theory of homicide.5 Perkins’s suppression motion
was an improper attempt “to raise claims of trial error or attack
the sufficiency of the evidence supporting the jury’s findings,”
which is not the function of a section 1172.6 evidentiary hearing.
(People v. Farfan, supra, 71 Cal.App.5th at p. 947.)
5 Perkins argues there have been two relevant changes to the
admissibility of identification evidence since his 2004 trial.
Section 859.7, which took effect in 2020, imposes on law
enforcement agencies numerous requirements for conducting
photographic and live lineups to “ensure reliability and accuracy”
of eyewitness identifications. (§ 859.7, subd. (a); see Stats. 2018,
ch. 977, § 2, eff. Jan. 1, 2019, operative Jan. 1, 2020.) He also
argues that the trial court’s instruction with CALJIC 2.92 that
included as a factor “‘[t]he extent to which the witness is either
certain or uncertain of the identification’” was error under People
v. Lemcke (2021) 11 Cal.5th 644 (directing trial courts not to
instruct juries on witness certainty). Neither change relates to
whether Perkins acted with express malice.
19
DISPOSITION
The September 16, 2024 order denying Perkins’s petition
for resentencing is affirmed.
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.
20
