Filed 4/20/20

                           CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



 THE PEOPLE,

          Plaintiff and Respondent,                  E072260

 v.                                                  (Super.Ct.Nos. RIF154575 &
                                                     RIF143982)
 RUDY ALEX PEREZ,
                                                     OPINION
          Defendant and Appellant.




        APPEAL from the Superior Court of Riverside County. Emma C. Smith, Judge.

Affirmed.

        Steven L. Harmon, Public Defender, William A. Meronek, Deputy Public

Defender for Defendant and Appellant.

        Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,

Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and

Respondent.




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                      FACTUAL AND PROCEDURAL HISTORY

       A.       PROCEDURAL HISTORY

       In 2009, in Riverside County case No. RIF143982, defendant and appellant Rudy

Alex Perez pled guilty to active gang participation under Penal Code 1 section 186.22,

subdivision (a), and unlawful possession of a firearm under section 12025, subdivision

(b)(6). In 2010, in Riverside County case No. RIF154575, defendant pled guilty to

residential burglary under section 459, and active gang participation under section

186.22, subdivision (a). In August of 2018, the People filed a new felony complaint in

case No. RIF1803562, and alleged one of the prior gang participation convictions as a

strike prior.

       On October 19, 2018, defendant filed a motion to vacate the two prior gang

participation convictions based upon changes in the law that rendered them invalid. On

December 28, 2018, the court denied defendant’s motion. On January 4, 2019, defendant

filed a motion to reconsider the order denying his motion to vacate. On February 22,

2019, the court denied defendant’s motion for reconsideration.

       On February 22, 2019, defendant filed a timely notice of appeal from the denial of

his motion to vacate the convictions.

       B.       FACTUAL HISTORY

       In May 2008, defendant, a known member of the Corona Varrio Locos street gang,

was carrying a loaded pistol while walking down the street. When he noticed a police car



       1   All statutory references are to the Penal Code unless otherwise specified.

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following him, defendant dropped the weapon into a gutter. The officer heard the sound

of metal hitting the concrete and stopped defendant to investigate. When the officer

searched defendant, he found nothing. However, the officer found a pistol, loaded with

bullets, when he went back to the place where he heard the metallic sound.

       In October of 2009, defendant, still a known member of the Corona Varrio Locos

street gang, broke into and burglarized a home in Norco by smashing the glass window of

the rear garage door. Defendant stole an Xbox gaming system, electronic devices, tools,

and a 30-caliber rifle from the home.

       In both May and October of 2008, defendant acted alone.

                                        DISCUSSION

       A.      THE TRIAL COURT PROPERLY DENIED DEFEDANT’S MOTION TO

               VACATE HIS CONVICTIONS UNDER SECTION 1473.7

       Defendant contends that the trial court erred in denying his motion to vacate his

prior street terrorism convictions. For the reasons set forth below, we shall affirm the

trial court’s order.

               1.      LEGAL BACKGROUND

       Section 1473.7, subdivision (a)(2) provides in pertinent part that “[a] person who

is no longer in criminal custody may file a motion to vacate a conviction” on the basis

that “[n]ewly discovered evidence of actual innocence exists that requires vacation of the

conviction or sentence as a matter of law or in the interests of justice.” A motion based

on newly discovered evidence must be filed “without undue delay from the date the

moving party discovered, or could have discovered with the exercise of due diligence, the


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evidence that provides a basis for relief under this section.” (Id., subd. (c).) Section

1473.7, subdivision (e)(1) provides in part that “[t]he court shall grant the motion to

vacate the conviction . . . if the moving party establishes, by a preponderance of the

evidence, the existence of any of the grounds for relief specified in subdivision (a).”

Thus, the defendant has the burden to demonstrate entitlement to relief under section

1473.7. (People v. Perez (2018) 19 Cal.App.5th 818, 829.)

       “There is no published decision addressing the applicable standard of review of an

order denying a motion to vacate a conviction under section 1473.7.” (People v.

Ogunmowo (2018) 23 Cal.App.5th 67, 75.) In general, we review orders granting or

denying motions to vacate convictions for abuse of discretion. (See id. at p. 76.) To the

extent our decision rests on a question of statutory interpretation, however, our review is

de novo. (Cf. People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

               2.    ANALYSIS

       In this case, defendant pled guilty to street terrorism under section 186.22,

subdivision (a), in 2009 and 2010. It is 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 must act in concert with a fellow gang

member in order to be guilty of street terrorism. (People v. Rodriguez (2012) 55 Cal.4th

1125, 1134.) At that time, defendant could have filed a state habeas petition requesting

relief under Rodriguez. He did not. Defendants can lose remedies that are established by

law when they fail to invoke such remedies in time. (People v. Kim (2009) 45 Cal.4th

1078, 1099.)


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       On January 1, 2017, section 1473.7 became effective. Almost two years later, in

October of 2018, defendant filed a motion to vacate the two prior gang participation

convictions under section 1473.7. The trial court denied defendant’s motion. Whether

we review the trial court’s ruling under the abuse of discretion or de novo standard of

review, we find that the court properly denied defendant’s motion under section 1473.7.

       As noted above, section 1473.7 requires that a defendant may file a motion to

vacate a conviction based upon newly discovered evidence of actual innocence. Here, in

defendant’s motion filed in the trial court, defendant failed to state what new evidence

was discovered. Instead, defendant argued that under section 1473.7, 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 trial court denied

defendant’s motion because he failed to provide newly discovered evidence. Defendant

filed a motion to reconsider. The trial court denied the motion to reconsider.

       Defendant, in his motion to reconsider and on appeal, contends that there was

newly discovered evidence—“specifically the police reports showing that [defendant]

acted alone with respect to each of the 2009 and 2010 convictions for active gang

participation, and testimony from a preliminary hearing transcript showing that he acted

alone with respect to the 2009 conviction.” Although defendant acknowledges that “the

police reports and preliminary hearing transcript existed at the time of the relevant

convictions,” defendant argues that “at that time they were not ‘evidence’ (at least with

respect to the instant claims) because proof that a defendant acted alone was not relevant


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to a conviction under section 186.22(a). [Citation.] At the time of the convictions in

RIF154575 and RIF143982 the active gang participation offense could be perpetrated by

a lone actor. [Citation.] Thus, at the time of those convictions it was irrelevant whether

defendant acted alone or with other gang members.”

       We first address the relevancy of the evidence that defendant acted alone. Under

Evidence Code section 210, ‘‘ ‘relevant evidence’ means evidence relevant to the

credibility of a witness or hearsay declarant, having any tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the action.”

Although defendant argues that the police reports were not relevant to his case at the time

he pled guilty, we disagree. Defendant could have used the police reports to argue that

because he was acting alone, he was not acting on behalf of or at the behest of a gang.

Just because defendant chose to plead guilty does not mean that the evidence was not

relevant to his potential defense.

       Moreover, although Penal Code section 1473.7 does not define the phrase “newly

discovered evidence,” the phrase has been defined elsewhere in the Penal Code. (See

Estate of Thomas (2004) 124 Cal.App.4th 711, 720 [“consistent usage implies consistent

meaning: ‘A word or phrase, or its derivatives, accorded a particular meaning in one part

or portion of a law, should be accorded the same meaning in other parts or portions of the

law’ ”]; accord, Scottsdale Ins. Co. v. State Farm Mutual Automobile Ins. Co.(2005) 130

Cal.App.4th 890, 899.) Those definitions consistently describe newly discovered

evidence as testimony, writings and similar things described in Evidence Code section

140 (which defines “evidence”), discovered after trial or judgment, and that with


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reasonable diligence could not have been discovered earlier. (E.g., Pen. Code, §§ 1181,

subd. 8, 1473, subd. (c)(3)(B), 1473.6, subd. (b); see also Evid. Code, § 140.)

       Defendant seeks to expand this definition by arguing that the police reports and

preliminary hearing transcript—that were known to exist prior to his convictions—

constitute newly discovered evidence because of the change in the law. We disagree with

defendant’s position, and interpret the term “[n]ewly discovered evidence” in section

1473.7, subdivision (a)(2) using its conventional, commonsense meaning. (Heritage

Residential Care, Inc. v. Division of Labor Standards Enforcement (2011) 192

Cal.App.4th 75, 82 [“Where a statutory term ‘is not defined, it can be assumed that the

Legislature was referring to the conventional definition of that term’ ”].) The publication

of a new appellate opinion is not newly discovered evidence as that term is used in

section 1473.7, subdivision (a)(2). Defendant did not put forward any newly discovered

evidence, and therefore has failed to demonstrate eligibility for relief under section

1473.7.

       However, if these two prior convictions are alleged as prior convictions in future

cases, defendant is not without a remedy. Defendant can file a motion under section

1385 and People v. Superior Court (Romero) 13 Cal.4th 497 to dismiss the prior

convictions. When denying defendant’s motion to vacate, the trial court noted: “To the

extent that the government’s interest in the finality of judgment unjustly subjects you to

the three-strikes law for conduct that does not actually constitute a strike, it is this Court’s

belief that the only recourse available is a Romero motion.”




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         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.

                                        DISPOSITION

         The trial court’s denial of defendant’s motion to vacate the convictions under

section 1473.7 is affirmed.

         CERTIFIED FOR PUBLICATION


                                                         MILLER
                                                                                 Acting P. J.


We concur:


CODRINGTON
                                   J.


MENETREZ
                                   J.




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