California v. Perez
Annotate this CaseIn 2009, defendant-appellant Rudy Perez pled guilty to active gang participation under Penal Code section 186.22(a), and unlawful possession of a firearm under section 12025(b)(6). In 2010, defendant pled guilty to residential burglary under section 459, and active gang participation under section 186.22(a). In August of 2018, the State filed a new felony complaint, alleging one of the prior gang participation convictions as a strike prior. In 2018, defendant moved to vacate the two prior gang participation convictions based upon changes in the law that rendered them invalid. The trial court denied defendant’s motion. In 2019, defendant asked for reconsideration, which was again denied. Thereafter, defendant filed a timely notice of appeal from the denial of his motion to vacate the convictions. The Court of Appeal found that defendant pled guilty to street terrorism under Penal Code section 186.22(a) in 2009 and 2010, and it was undisputed that while committing these offenses, defendant acted alone. However, subsequent to defendant’s guilty pleas, in 2012, the California Supreme Court held that a defendant had to act in concert with a fellow gang member in order to be guilty of street terrorism. At that time, defendant could have filed a state habeas petition requesting relief, but failed to do so. "Defendants can lose remedies that are established by law when they fail to invoke such remedies in time." Section 1473.7 became effective in 2017. In defendant’s motion filed in the trial court, defendant failed to state what new evidence was discovered, instead arguing that the trial court was allowed “to vacate a conviction where the defendant is innocent as a matter of law or where vacating the conviction is in the interest of justice, even though the defendant is no longer in custody or otherwise restrained by the conviction.” The Court of Appeal concurred with the trial court's reason to deny relief, determining that "while the outcome in this case may be unfortunate for defendant, we are not here to rewrite legislation. The Legislature could amend section 1473.7 to address issues raised in this case. However, under the laws, as written, we must uphold the trial court’s order."
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