People v. Perez CA4/2

I. INTRODUCTION

A jury found defendant and appellant Ezekiel Perez, Jr. guilty as charged of the

first degree felony murder of Oscar Carrillo based on the attempted robbery of Carrillo,

and found a gang enhancement allegation true. (Pen Code, §§ 187, subd. (a), 186.22,

subd. (b)(1).)1 Defendant was sentenced to 25 years to life in prison.

Defendant and a codefendant, Leroy Gutierrez, were tried together before separate

juries. Financial gain, lying-in-wait, and criminal street gang special-circumstance

allegations were alleged against defendant and Gutierrez (§ 190.2, subd. (a)(1), (15),

(22)), but all three special-circumstance allegations were dismissed against defendant

before the prosecution presented its case-in-chief against defendant and Gutierrez.

In arguing the case to defendant’s jury, the green jury, the prosecution claimed

Gutierrez shot and killed Carrillo during an attempted robbery of Carrillo, and defendant

aided and abetted the attempted robbery and resulting murder by driving the getaway car

and providing Gutierrez with the gun used in the crimes. On defendant’s murder charge,

defendant’s jury was instructed solely on first degree felony murder…