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People v. Mercado CA2/3 ( 2023 )


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  • Filed 4/28/23 P. v. Mercado CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION THREE
    THE PEOPLE,                                                         B322524
    Plaintiff and Respondent,                                  (San Bernardino County
    Superior Ct. Nos.
    v.                                                         FVI17002214,
    FVI17002215)
    REYNA MERCADO, et al.,
    Defendants and Appellants.
    APPEALS from a judgment of the Superior Court of San
    Bernardino County, Tony Raphael, Judge. Remanded for
    resentencing.
    Theresa Osterman Stevenson, under appointment by the
    Court of Appeal, for Defendant and Appellant Reyna Mercado.
    Christopher Nalls and Robert Booher, under appointment
    by the Court of Appeal, for Defendant and Appellant Danielle
    Cummings.
    Rob Bonta, Attorney General, Lance E. Winters, Assistant
    Attorney General, Charles Ragland, Senior Assistant Attorney
    General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys
    General, for Plaintiff and Respondent.
    _________________________
    Reyna Mercado (Mercado) and Danielle Cummings
    (Cummings) (collectively defendants) were jointly tried for the
    killing of 12-year-old Makiya W. The trial took place in front of
    two juries. At the conclusion of trial, one jury found Mercado
    guilty of murder in the first degree (Pen. Code, § 187, subd. (a);
    count 1)1 and shooting at an inhabited dwelling (§ 246; count 2).
    The other jury found Cummings guilty of the same counts.
    On appeal, defendants contend: (1) substantial evidence
    does not support the juries’ verdicts as to the first degree murder
    counts; and (2) remand for resentencing on count 2 is necessary
    because of the trial court’s erroneous application of the merger
    doctrine, and for the trial court to consider recently enacted
    Senate Bill No. 567 (2020–2021 Reg. Sess.) and Assembly Bill No.
    124 (2020–2021 Reg. Sess.).
    We affirm the verdicts and remand the matter for
    resentencing as to count 2 only.
    1All subsequent statutory references are to Penal Code
    unless otherwise specified.
    2
    FACTUAL AND PROCEDURAL BACKGROUND
    I.     People’s case
    A. Events leading up to encounter at DD’s Discounts
    In April 20172 , Christopher Hicks (Hicks) and Cummings
    became acquainted while working at the same retail department
    store. At the time, Hicks was in a relationship with Maesha
    McCullers (McCullers), and they resided together in a house on
    Monaco Drive (the Monaco house) in Victorville. There were
    three additional adults and six minors (including Makiya)
    residing in the Monaco house.3
    Sometime in May, McCullers began to suspect Hicks of
    infidelity. By going through Hicks’s cellphone records and
    Facebook account, McCullers learned of Cummings’s existence
    and initiated contact with her through Facebook. Using
    Facebook, McCullers also began communicating with Anthony
    Pitts (Pitts), the person Cummings identified as her “significant
    other” on Facebook. McCullers also contacted Pitts’s mother on
    Facebook.
    McCullers and Cummings eventually spoke over the
    telephone wherein Cummings maintained that her relationship
    with Hicks was strictly platonic. Shortly after this conversation,
    McCullers discovered a cellphone hidden in Hicks’s backpack.
    Hicks reported that Cummings had given him the cellphone so
    2  Because the underlying events took place in 2017, all
    subsequent date references are to that year unless otherwise
    specified.
    3 McCullers was Makiya’s mother. At the time of Makiya’s
    death, both individuals were approximately the same height and
    had the same hair style.
    3
    that they could communicate surreptitiously. This information
    angered McCullers and led to an exchange of text messages
    between McCullers and Cummings. In this exchange, McCullers
    told Cummings that she would fight Cummings and “beat her
    ass.” Cummings continued to deny a sexual relationship with
    Hicks, and expressed anger at McCullers’s accusations with
    messages like: “Girl, he’s lying. IDGAF. Now I’m tired of yo ass
    harassing me. Shit, I didn’t put that shit in there. Tell that
    muthafucka stop lying.” Over text message, McCullers reiterated
    her desire to fight Cummings and provided Cummings with the
    address to the Monaco house as an invitation to fight.
    In late May, McCullers requested that Hicks move out
    given his infidelity. Cummings came to the Monaco house to pick
    up Hicks and his belongings, and together they drove to a motel.
    Cummings and Hicks began to reside together at the motel.
    Around this time, Hicks became acquainted with Mercado, who
    Cummings identified as her “sister” and best friend. Hicks and
    Mercado became Facebook friends, and on several occasions,
    Mercado drove Hicks to the AM/PM convenience store located
    next to the Monaco house.
    On the night of May 31, McCullers met Pitts at an
    apartment in Adelanto. They smoked marijuana. Pitts then
    showed off two firearms in his possession, namely a handgun and
    a sawed-off shotgun.4 McCullers took a number of photographs of
    4 In court, McCullers identified the murder weapon as the
    same shotgun Pitts displayed to her that night. Hicks testified
    that Cummings told him that she had purchased a sawed-off
    shotgun for Pitts with money she had received from a tax return.
    Cummings denied purchasing the shotgun for Pitts.
    4
    the interior of the Adelanto apartment, believing that it was
    where Cummings resided. McCullers described the interior as
    “pretty nasty.”
    Meanwhile, the dispute between McCullers and Cummings
    continued to escalate over text message. On June 1, McCullers
    sent a message indicating that she was at Cummings’s workplace
    and was ready to fight.5 Cummings later responded: “Let’s go
    there then. I know exactly where you stay, boo. You must not
    know who tfk . . . y’all fucking with.” McCullers threatened to
    report Cummings to child protective services and the county’s
    housing authority based on the “nasty pictures” that she took of
    the Adelanto apartment. Cummings demanded that McCullers
    stop harassing her and contacting Pitts’s mother.
    On or about July 3, Hicks and Cummings ended their
    intimate relationship, and Hicks moved back to the Monaco
    house. In late July, McCullers posted on Facebook photographs
    of the Adelanto apartment in order to embarrass Cummings.
    This infuriated Cummings and she confronted Hicks about the
    photographs at work. Cummings warned Hicks that unless
    McCullers took down the unflattering photos, Cummings “was
    going to have her baby daddy come shoot up [the Monaco] house.”
    Hicks testified that Cummings often threatened to have Pitts
    come and shoot up the Monaco house whenever the ongoing
    dispute between Cummings and McCullers flared.
    At the end of July, McCullers posted on Facebook some
    photographs of her enjoying an outing at a waterpark with Hicks.
    5 McCullers testified that she was not in fact at
    Cummings’s workplace on that date and that the message was a
    bluff.
    5
    In response, McCullers received “like a thousand” messages from
    Mercado through Facebook messenger.6 Hicks, who viewed these
    messages, described their content as: “Our kids are going to get
    up in the morning, they getting up for school. They are going to
    wake up to Jesus. I’m going to cocktail your house. Kiss your
    kids goodbye every time you leave to go to AM/PM because there
    might be a chance you might not make it back.” Hicks confronted
    Mercado about these messages and asked her why she was
    getting involved. Mercado indicated that she was fed up with
    Hicks and McCullers “double teaming” Cummings and that she
    would no longer tolerate their poor treatment of Cummings.
    Around this time period, the dispute between McCullers
    and Cummings continued to escalate. McCullers boasted about
    having sex with Hicks during the period when he was residing
    with Cummings at the motel. Cummings in turn revealed that
    she was having sex with Hicks during the period in May when
    she claimed that they were in a strictly platonic relationship. In
    another message, Cummings indicated that Hicks would
    eventually return to her and that she “will always win” by
    “playing dumb.”
    At one point during their ongoing text message exchange,
    Cummings indicated her knowledge that McCullers had
    purchased a gun. Cummings wrote: “You purchased a gun
    because you feel I harass you, which I don’t. Your husband baby
    daddy, baby mama, whatever he is to you, told me it was for me.
    [¶] Don’t you think you’ve done enough? Chris is back at home
    6For purposes of this appeal, it is undisputed that Mercado
    used the name of “Nechi Walker” for her Facebook profile.
    6
    with you. Why am I still being harassed? Why is my life so
    important? You’re doing better then?”
    On August 2, Cummings sent McCullers the following text
    message: “All y’all can consider yo self dead . . . . Fuck y’all. I
    don’t need to get my nd. I’ll call my daddy, in you not the only
    one with a gun. I will shoot your fat ass. Fuck y’all. Get
    whoever. It’s on now.” 7
    As the dispute between Cummings and McCullers
    escalated over text message during the time period of late July to
    early August, Mercado continued sending more messages to
    McCullers over Facebook. One message stated: “Bitch, I’ll have
    your own bd set you up. I’m with that killing shit bitch. Fuck a
    fight.” Another message: “How would you feel to get that call
    knowing you no longer have a baby daddy. He was found dead at
    AM/PM. Too bad for your raggedy ass kids fat bitch.” Mercado
    also wrote:
    “San Bernardino is what I am. I can show it to you too.
    That’s why when I come, it’s not going to be pretty. I’m
    going to come with the whole San Bernardino . . . . [¶] And
    like I said, you f* with my sister, you’re f* with me. So it
    didn’t matter if I said something or pulled up with her
    when I come. I’m coming b*. [¶] I’ll f*around and throw a
    7 McCullers testified that she was not familiar with the
    term “nd” and did not know what the term was referencing. She
    later testified that she understood the term “bd” to stand for
    “baby daddy.”
    7
    whole fire. What do you call those things? Cork screws.
    Yep, one of those do your f.” 8
    Additionally, Mercado wrote: “And I pretty sure y’all got kids and
    dogs. So let’s not have to go there. Don’t reply talk’n shit either.
    We finna fade all day or don’t say shit back. Leave my sis alone
    before you wind up missing bitch. On my life you better not take
    me there. You don’t know me at all first.” 9
    McCullers testified that she understood the term “pull up”
    as used in the context of Mercado’s message to mean that
    Mercado was “going to pull up to my home and kill me.”
    McCullers admitted that the term “pull up” could also mean
    “come to” or “come over.”
    B. Encounter at DD’s Discounts
    On August 9, McCullers and Makiya went to DD’s
    Discounts retail store to buy Makiya a backpack. McCullers saw
    Cummings and Mercado, along with their respective children,
    doing their own shopping. McCullers pointed them out to the
    store manager, with whom McCullers had a friendly relationship.
    Sensing a possible altercation, the store manager persuaded
    McCullers not to start anything because Makiya was present.
    McCullers left the store and drove to the Monaco house, which
    8  McCullers testified that Facebook messenger will
    sometimes replace profane words with the first letter of the word
    and an asterisk.
    9 McCullers testified that she understood the term “finna”
    to mean “about to,” and the term “fade” to mean something akin
    to causing bodily harm, shooting, and killing. McCullers further
    testified that she understood the term “missing” to mean “to
    become dead.”
    8
    was located less than a mile away. Once home, she dropped off
    Makiya and enlisted the assistance of two women who were there
    at the time. The group drove back to DD’s Discounts to confront
    Cummings and Mercado.
    Upon entering the store, McCullers located Cummings and
    Mercado at the register and asked, “Do we still have an issue?”
    Mercado indicated that she wanted to secure the children in her
    car before anything took place. McCullers assented to this
    request and went back outside with her two companions, while
    Cummings and Mercado remained in the store. The store
    manager observed that while inside the store, Mercado was
    yelling and throwing her hands about, and appeared angry over
    the situation. At one point, the store manager heard Mercado
    state that if McCullers intended to do “ ‘some bitch shit,’ ” then
    “they were going to pull up on her.” Another employee of DD’s
    Discount testified that she heard Mercado state: “ ‘I’m not going
    to go out there because I have my kids. I’ll just get her later.’ ”
    Cummings then made a telephone call, which the store
    manager suspected was to law enforcement based on snippets
    that she overheard. The store manager sent McCullers a text
    message warning her that law enforcement was on its way.
    McCullers and her friends left DD’s Discounts at approximately
    5:15 p.m. 10
    10 When McCullers was called as a witness by Cummings in
    the defense’s affirmative case, she testified that at 5:17 p.m.,
    after she left DD’s Discounts, she received a text message from
    the store manager warning her that defendants were “coming to
    y’all when they drop the kids off.” McCullers testified that she
    did not take the warning seriously because defendants had
    9
    After McCullers and her friends left DD’s Discounts, she
    received a voicemail from a person who sounded like Mercado.
    The voicemail stated: “ ‘No one’s gonna fight in a store where
    there’s a bunch of cameras. I don’t get down that way. I told you
    that I’m gonna catch you unexpectedly.’ ” A text message from
    the same telephone number followed the voicemail, stating:
    “ ‘You did that. My turn.’ ”
    Around 6:00 p.m., Jeanette Hodges (the girlfriend of
    Mercado’s brother) received a telephone call from Mercado.
    During this conversation, Mercado told Hodges about the
    encounter at DD’s Discounts, and stated that Mercado and Pitts
    “were going to go shoot up that house.”11
    C. The purchase of ammunition at Turner’s
    Outdoorsman
    At approximately 7:55 p.m., Cummings, Mercado, and Pitts
    entered the Turner’s Outdoorsman (Turner’s) sporting goods
    store in Victorville. A cashier who was working that evening
    observed that the three individuals were laughing and talking to
    threatened to “pull up” on two or three occasions previously, and
    nothing happened. Furthermore, it seemed to McCullers that
    Cummings appeared “a little spooked” when approached at DD’s
    Discounts, and McCullers concluded at the time that Cummings
    “had a lot of mouth through the text messages and Facebook
    stuff, but in person she looked spooked.”
    11 This evidence came out at trial through an audio
    recording of an interview that Hodges had with the San
    Bernardino Sheriff’s Department shortly after the shooting. At
    trial, Hodges testified that she did not remember making this
    statement during the recorded interview.
    10
    each other upon entering the store. As they entered, Pitts
    approached the gun counter while Cummings and Mercado went
    to the aisle that held mace and pepper spray. Pitts retrieved two
    boxes of shotgun shells from the gun counter and approached
    Cummings and Mercado, who were “laughing and talking about
    something amongst each other.” Pitts handed the two boxes of
    ammunition to Cummings, who in turned placed the ammunition
    in front of the cashier along with some pepper spray. As the
    cashier was ringing up the items, the cashier heard Mercado say
    aloud that she would rather “pop a cap” in someone instead of
    using a taser. Both Cummings and Mercado laughed at this
    comment. Once the cashier rang up the items, Cummings
    realized that she did not have enough money to purchase the two
    boxes of shotgun shells and the pepper spray that she had
    selected, so she opted for a different pepper spray that was less
    expensive. Cummings paid for the items with cash. The group
    left the store at 8:07 p.m.
    D. Shooting of Monaco home and aftermath
    That night, at approximately 8:22 p.m., Patrisha Davis
    (McCullers’s mother) was in the kitchen of the Monaco home.
    She heard a “loud blast” and saw a nearby sliding door shatter.
    She heard several “booms” after that initial blast and upon
    entering the living room, she observed shattered walls and items,
    and large holes through the front picture window that faced the
    street. She saw Makiya lying on the ground moaning, and could
    see blood seeping through Makiya’s shirt.12 According to Davis,
    12A coroner for the county of San Bernardino testified that
    Makiya’s cause of death was a shotgun wound to her chest and
    11
    at the time of the shooting, the curtains were drawn in front of
    the picture window. However, because the curtains were sheer
    and a lamp was illuminated inside, it was possible to see people
    standing or walking by the window from the outside.
    Danielle Council (another adult residing in the Monaco
    home) testified that at approximately 8:20 or 8:22 p.m., she was
    sitting on a couch in the living room with her infant next to her in
    a stroller. Makiya was seated nearby on another couch. Council
    heard a “bang” that she initially believed was a firework. Makiya
    stood up just as a second shot was fired through the picture
    window in the living room. Council heard bullets whizzing
    through the room and glass shattering. Council recalled hearing
    a total of four shots. Council glanced outside, saw a white car
    parked across the street, and a silhouette of a person moving
    away from the house.
    Ca. H., (12-years-old at the time of trial) testified that she
    was in the Monaco home at the time of the shooting. After the
    gunshots stopped, she ran upstairs, looked through a window,
    and saw a man who was wearing a dark mask running toward a
    white car. Once the man was inside the car, it sped off. Ca.’s
    testimony at trial differed from her interview with law
    enforcement, which took place shortly after the shooting. During
    that interview, Ca. stated that after the shooting, she ran outside
    and saw a man and a white car. Ca. did not mention during the
    interview that she ran upstairs or saw the man in question
    wearing a mask.
    abdomen, and that she died minutes after she was shot. Shotgun
    pellets were found in her liver, lungs, and spleen.
    12
    Ch. H., who was 11-years-old at the time of trial, testified
    that on the evening of the shooting, she was on the stairs of the
    Monaco home with her sister Ca. Ch. recalled hearing four shots
    and seeing Makiya on the ground twitching. After the shooting
    ended, Ch. testified that she went upstairs and saw a white car
    leave and “smoke.” On redirect, Ch. testified that she saw the
    white car from downstairs (not upstairs) and that the smoke was
    coming from the car after it left. Ch.’s testimony at trial differed
    from her statement given to law enforcement shortly after the
    shooting. In her statement, Ch. indicated she was upstairs when
    she first heard the gunshots and ran to her mother’s room
    because she thought the sounds were of fireworks.
    Hicks and McCullers were at their sons’ football practice
    when they learned of the shooting. Hicks called Cummings and
    accused her of bringing Pitts over to shoot at the Monaco home.
    Cummings denied any knowledge of a shooting and indicated to
    Hicks that she was at home asleep. Hicks did not believe her, in
    part, because the background noise of their telephone call
    sounded like she was in a moving vehicle. Over the course of
    several more phone calls to Cummings, he heard the voices of
    Pitts and Mercado in the background.
    Alexandria Whitaker, who lived at the same apartment
    complex as Mercado and considered herself Mercado’s best friend,
    testified that on the evening of August 9, Mercado asked her to
    babysit Mercado’s children. Sometime after 8:00 p.m., she
    observed Mercado returning to the apartment building in her car
    with Cummings and Pitts. Mercado appeared unusually subdued
    and quiet, and Cummings appeared upset and afraid. About an
    hour later, Pitts went to Whitaker’s apartment and requested to
    use her car. She agreed and Pitts returned approximately 15
    13
    minutes later to return Whitaker’s keys. Whitaker described
    Pitts’ demeanor as “weird and panicky” during this interaction.13
    Around midnight, Mercado and Cummings drove to
    Hodges’s home to pick Hodges up for a trip to Las Vegas. The
    purpose of the trip was to pick up Mercado’s niece who was
    staying in Las Vegas. According to Hodges, the group drove to an
    apartment complex and waited three hours in the parking lot.
    After waiting three hours, the group decided to leave and return
    home. Once they crossed the state line back into California, they
    were picked up by the San Bernardino County Sheriff’s
    Department.
    On August 10, the day after the shooting, officers searched
    Whitaker’s car. Inside the trunk, they found a shotgun resting on
    top of a bag containing ammunition. A criminalist for the
    Sheriff’s Department tested the shotgun found in Whitaker’s
    trunk and confirmed through ballistics analysis that it was the
    weapon used to fire the shotgun shells recovered from the scene
    of the shooting. Further analysis confirmed that the recovered
    13 In the presence of the Mercado jury only, Whitaker
    testified that between the hours of midnight and 2:00 a.m. on
    August 10, Mercado informed her that a shotgun was in her car.
    When asked more questions about Mercado’s statement,
    Whitaker testified that she was confused and that someone else
    (not Mercado) told her a gun was in her car. When asked who
    told her about the gun, Whitaker refused to answer the question
    indicating “it’s irrelevant to the situation.” Whitaker testified
    that she did not bother to call the police upon learning that a gun
    was in her car because she knew that officers would be on their
    way to search her car.
    14
    shells matched the brand and gauge of ammunition purchased by
    Cummings at Turner’s on the night of the shooting.
    II.    Cummings’s testimony
    Cummings testified that her friendship with Mercado dated
    back to when she was 11 years old. Although Mercado was not
    related to her biologically, she referred to Mercado as her “sister.”
    As to Pitts, Cummings first met him in 2015 and had a
    child with him in 2016. Their relationship was “off and on”
    through 2017. Throughout their relationship, Pitts was
    physically abusive toward Cummings. The physical abuse
    consisted of punching, choking, hitting her with a firearm, and
    threatening her life. According to Cummings, Pitts would become
    abusive “when things didn’t go his way or he didn’t get what he
    wanted.” Pitts constantly remarked: “I’m 5 Crip” when he
    threatened Cummings with physical harm.
    Initially, Pitts physically abused or threatened Cummings
    in private. However, toward the end of 2016, Pitts began to
    engage in abusive behavior on a daily basis and frequently in
    front of others. Cummings testified that Pitts physically
    threatened her family, including cousins who attempted to
    intervene on her behalf. Cummings resided with Pitts until May
    2017, when Cummings moved out and began living with her
    mother.
    In early June, Cummings and Hicks began residing
    together at a motel. Cummings testified in late June, she ran
    into Pitts in the parking lot of a county agency. Pitts forced her
    (and their child, who was with Cummings at the time) into his
    car. Pitts interrogated her at gunpoint about her relationship
    with Hicks. She lied to Pitts and convinced him that her
    relationship with Hicks was strictly platonic.
    15
    As to her dispute with McCullers, Cummings testified that
    even though McCullers constantly harassed and baited her over
    social media, she was frightened of McCullers and had no desire
    to engage in any type of physical altercation with McCullers.
    Cummings maintained that she was raised not to fight with
    people and in fact had tried on multiple occasions to deescalate
    the situation by refusing to fight. McCullers had threatened
    Cummings multiple times over text message, but deleted all of
    these messages before sharing screenshots with law enforcement.
    When asked about the text message that she had sent on
    August 2 that contained the threat, “y’all can consider [yourself]
    dead,” Cummings denied sending that particular text.
    Cummings testified that on that date, she received a text from an
    anonymous person threatening to “shoot up” Pitts’s “hood.”
    When Pitts saw this anonymous text, he suspected it came from
    McCullers and Hicks, and sent McCullers that threatening text
    message while pretending to be Cummings. Cummings
    acknowledged that she had written every other text message that
    McCullers had attributed to her as the sender.
    When asked about whether she had made threats to Hicks
    about having her baby daddy shoot up his home, Cummings
    denied ever making such statements. Cummings testified that in
    the months leading up to the shooting, Pitts would become
    enraged every time he learned that McCullers contacted his
    mother and would take his anger out on Cummings through
    physical abuse.
    Cummings testified that on August 9, after her initial
    encounter with McCullers at DD’s Discounts, she called 911 while
    McCullers waited outside in the parking lot. A recording of the
    911 call was played to both juries and during this recording, a
    16
    voice is heard stating: “No. I’m going to their house today. I’m
    not about to let this slide. No. No. No. I’m going there. No.”
    Cummings testified that Mercado was the person who made that
    statement.
    After the encounter at DD’s Discounts, Cummings and
    Mercado returned to Mercado’s apartment. Pitts was at the
    apartment babysitting. When Cummings recounted the events of
    the afternoon, Pitts became angry because he reasoned that there
    would be no reason for McCullers to challenge Cummings to a
    fight unless Cummings was still in an intimate relationship with
    Hicks. Pitts pulled out his shotgun, placed it at Cummings’s
    head, and forced her to go fight McCullers. Cummings began to
    cry, went downstairs with Pitts and Mercado following her, and
    the three individuals immediately entered Mercado’s car.
    Cummings denied seeing Pitts enter the car with the shotgun he
    had been holding to her head.
    Pitts, Cummings, and Mercado left the apartment around
    7:00 p.m. and drove to Turner’s sporting goods store. Mercado
    drove while Cummings sat in the front passenger seat and Pitts
    sat in the back seat. Cummings testified that the purpose of
    going to Turner’s was to buy pepper spray to assist her in
    fighting McCullers. While at Turner’s, Pitts handed her two
    boxes of ammunition and directed her to buy them for him
    because they were on sale. Cummings did not object to
    purchasing the ammunition because she was afraid that Pitts
    would physically hurt her.
    After the group left Turner’s, they proceeded to the Monaco
    house. Upon arriving at the Monaco house, Cummings informed
    Pitts that no one was home. Pitts exited the car, and to
    Cummings’s surprise, began shooting at the house. After the
    17
    shooting, they returned to Mercado’s apartment. Pitts packed
    some clothes for himself and Cummings packed a bag for their
    child. Mercado drove Cummings, Pitts, and the child to the
    residence of Pitts’s mother (in Redlands) and dropped off Pitts
    and the child.
    From Redlands, Mercado and Cummings drove to Hodges’s
    residence to pick her up for their planned trip to Las Vegas.
    After waiting several hours for Mercado’s niece in Las Vegas,
    they drove home and were pulled over by law enforcement before
    reaching Victorville.
    Cummings testified that when she first spoke to officers,
    she denied any knowledge about the shooting. In a subsequent
    interview, however, Cummings told officers that Pitts had forced
    her to go to the Monaco house to fight. Cummings explained that
    she initially lied because she was fearful that Pitts would kill her
    for cooperating.
    Cummings testified at trial that she had no intention of
    killing anyone, never agreed to kill anyone, and never agreed to
    shoot at the Monaco house.
    III. Proceedings below
    On September 11, 2017, the People charged Pitts,
    Cummings, and Mercado with the following: murder (§ 187, subd.
    (a); count 1); and shooting at an inhabited dwelling (§ 246; count
    2). Pitts entered a plea and received an indeterminate sentence
    of 50 years to life, with a determinate term of six years stayed.
    Over the course of several months in 2019, defendants were
    jointly tried before two separate juries. As to count 1, the trial
    court instructed the juries that with regards to first degree
    murder, the People were proceeding under two theories of
    liability: aiding and abetting first degree murder, and conspiracy
    18
    to commit first degree murder. To convict defendants of first
    degree murder under either theory of liability, the People were
    required to prove beyond a reasonable doubt that defendants
    harbored express malice and that they acted willfully,
    deliberately, and with premeditation. 14
    The Mercado jury found Mercado guilty of murder in the
    first degree and shooting at an inhabited dwelling, and the
    Cummings jury found Cummings guilty of the same counts.
    At the March 2021 sentencing hearing, the trial court
    began with an indicated sentence for Cummings: 25 years to life
    imposed for count 1, and the upper term of seven years imposed
    and stayed for count 2. The trial court explained that it was
    imposing and staying sentence on count 2 pursuant to the
    “Merger Doctrine.” It listed as aggravating factors the violence
    and great bodily harm, the high degree of cruelty, viciousness,
    callousness, the vulnerability of the victim, and the planning
    involved, including going to Turner’s before the shooting.
    Counsel for Cummings objected on the grounds that under the
    merger doctrine, the trial court should impose no sentence at all
    on count 2 because the act of shooting into an inhabited dwelling
    merged into the act of murder. After taking a break to research
    the matter, and after further discussion with Cummings’s counsel
    and the prosecution, the trial court concluded that the two acts
    had in fact “merged” and sentenced Cummings to: an
    indeterminate term of 25 years to life imposed on count 1, and a
    14 We omit any discussion of the trial court’s instructions as
    to count 2 because those instructions are not relevant to the
    issues raised in the present appeal.
    19
    determinate, aggravated term of seven years imposed and stayed
    on count 2.
    As to Mercado, the trial court pronounced the same
    sentence and listed largely the same factors in support of
    selecting the aggravated term on count 2.
    Defendants filed timely notices of appeal from the final
    judgments.15
    DISCUSSION
    I.     Substantial evidence supports the first degree
    murder convictions as to both defendants
    A. Standard of review
    “In reviewing the sufficiency of the evidence to support a
    jury’s verdict finding a defendant guilty of a criminal offense, we
    apply the substantial evidence standard of review.” (People v.
    Johnson (2019) 
    32 Cal.App.5th 26
    , 57.) Under this standard of
    review, the appellate court must review the “ ‘whole record in the
    light most favorable to the judgment below to determine whether
    it discloses substantial evidence—that is, evidence which is
    reasonable, credible, and of solid value—such that a reasonable
    trier of fact could find the defendant guilty beyond a reasonable
    doubt.’ ” (People v. Cuevas (1995) 
    12 Cal.4th 252
    , 260–261.)
    “Further, ‘the appellate court presumes in support of the
    judgment the existence of every fact the trier could reasonably
    deduce from the evidence.’ ” (People v. Catlin (2001) 26 Cal.4th
    15In August 2022, by order of the Supreme Court,
    defendants’ appeals were transferred from the Fourth District
    Court of Appeal, Division Two, to the Second District Court of
    Appeal.
    20
    81, 139.) The substantial evidence standard applies whether
    direct or circumstantial evidence is involved. (Ibid.)
    “Although it is the jury’s duty to acquit a defendant if it
    finds the circumstantial evidence susceptible of two reasonable
    interpretations, one of which suggests guilt and the other
    innocence, it is the jury, not the appellate court that must be
    convinced of the defendant’s guilt beyond a reasonable doubt.”
    (People v. Kraft (2000) 
    23 Cal.4th 978
    , 1053–1054.) “ ‘ “If the
    circumstances reasonably justify the trier of fact’s findings, the
    opinion of the reviewing court that the circumstances might also
    reasonably be reconciled with a contrary finding does not warrant
    a reversal of the judgment. ” ’ ” (Id. at p. 1054.) A reviewing
    court will not reweigh the evidence or reconsider witness
    credibility. (In re E.H. (2003) 
    108 Cal.App.4th 659
    , 669.)
    B. The record contains substantial evidence of
    defendants’ express malice
    1. Applicable law
    “A conviction for murder requires the commission of an act
    that causes death, done with the mental state of malice
    aforethought (malice). (§ 187.)” (People v. Gonzalez (2012) 
    54 Cal.4th 643
    , 653.) “A killing with express malice formed
    willfully, deliberately, and with premeditation constitutes first
    degree murder.” (People v. Beltran (2013) 
    56 Cal. 4th 935
    , 942.)
    “Malice is express when there is manifested a deliberate
    intention to unlawfully take away the life of a fellow creature.”
    (§ 188, subd. (a)(1).) “Express malice is an intent to kill.” (People
    v. Gonzalez, 
    supra,
     54 Cal.4th at p. 653; see also People v. Polley
    (1983) 
    147 Cal.App.3d 1088
    , 1092 [“[m]alice is express when
    there is manifested an intention unlawfully to kill a human
    being”].)
    21
    “ ‘All persons concerned in the commission of a crime, . . .
    whether they directly commit the act constituting the offense, or
    aid and abet in its commission, . . . are principals in any crime so
    committed.’ ” (People v. McCoy (2001) 
    25 Cal.4th 1111
    , 1116–
    1117.) Thus, “an aider and abettor’s mental state must be at
    least that required of the direct perpetrator.” (Id. at p. 1118.) To
    prove conspiracy to murder, the prosecution must prove that
    “ ‘[e]ach of the persons specifically intended to enter into an
    agreement with one or more other persons for that purpose’ and
    that ‘[e]ach of the persons to the agreement harbored express
    malice aforethought, namely a specific intent to kill unlawfully
    another human being.’ ” (People v. Garton (2018) 
    4 Cal.5th 485
    ,
    516.)
    In People v. Anderson (1968) 
    70 Cal.2d 15
    , 26, the Supreme
    Court identified three categories of evidence courts have used to
    assess deliberation and premeditation: (1) planning activity, or
    facts about how and what the defendant did before the killing
    that show the defendant was engaged in activity directed toward,
    and intended to result in, the killing; (2) motive, or facts about
    the defendant’s conduct from which the jury could reasonably
    infer a reason to kill; and (3) the manner of killing, or facts
    showing that the manner of killing was according to a plan or
    preconceived design. Notably, the Anderson factors are
    descriptive, not normative. (People v. Thomas (1992) 
    2 Cal.4th 489
    , 517.) In other words, the “Anderson analysis was intended
    as a framework to assist reviewing courts in assessing whether
    the evidence supports an inference that the killing resulted from
    preexisting reflection and weighing of considerations.” (Ibid.)
    22
    2. Analysis as to Cummings
    Cummings argues that substantial evidence does not
    support her conviction for first degree murder because there was
    insufficient evidence that: (1) she harbored an intent to kill; and
    (2) she knew of Pitts’s intent to kill.
    There was ample evidence adduced at trial to support the
    jury’s findings as to both elements.
    Cummings made several statements from which the jury
    could reasonably conclude that she harbored an intent to kill.
    After McCullers posted embarrassing photographs of the interior
    of Cummings’s home, Cummings threatened Hicks that unless
    the photographs were taken down, Cummings would have Pitts
    shoot up the Monaco house. Hicks testified that Cummings made
    this threat on several occasions, usually whenever the dispute
    flared between Cummings and McCullers. Additionally, a week
    before the shooting, Cummings sent McCullers a text message
    explicitly warning McCullers that she should consider herself
    “dead” because Cummings intended to “shoot” her “ass.”
    Additionally, Cummings’s conduct on the evening of the
    shooting demonstrated both an intent to kill and knowledge that
    Pitts intended to kill. After the encounter with McCullers,
    Cummings and Pitts (along with Mercado) went to Turner’s and
    procured ammunition for a firearm that Cummings had
    purchased for Pitts earlier. While at Turner’s, a witness saw
    Cummings talking with Pitts and laughing. After purchasing the
    ammunition, Cummings led Pitts directly to the Monaco house
    (with Mercado driving) and waited for Pitts until he was done
    shooting multiple rounds before helping him flee the scene. (See,
    e.g., People v. Lee (2011) 
    51 Cal.4th 620
    , 636 [bringing loaded gun
    to scene shows violence was considered].) At no point after the
    23
    shooting did Cummings attempt to render aid or contact law
    enforcement. Instead, once back at Mercado’s apartment,
    Cummings packed a bag for the child that she shared with Pitts
    and assisted Pitts (and their child) in seeking refuge at Pitts’s
    mother’s home in another city.
    On appeal, Cummings argues that her threatening
    messages to McCullers were simply part of a text message war
    that no one (including McCullers) believed would escalate to
    violence. Furthermore, argues Cummings, the fact that she
    purchased pepper spray shows that she intended to fight on the
    night of August 9 (and not kill). And, Cummings maintains, at
    most the evidence showed that she knew Pitts intended to shoot
    up the Monaco house, not that he intended to kill anyone. All of
    these arguments were made to the jury at trial, and the jury
    clearly rejected them. Cummings is asking this court to reweigh
    the evidence, draw different conclusions from the reasonable ones
    drawn by the jury, and reassess witness credibility. Given the
    standard of review, we decline to do so. (In re E.H., supra, 108
    Cal.App.4th at p. 669 [reviewing court will not reweigh the
    evidence or reconsider witness credibility].)
    Finally, Cummings argues that she was acting under
    duress, which negates her intent to kill. Cummings points to her
    own testimony describing the abusive relationship with Pitts, her
    fear that Pitts would hurt her if she objected to the purchase of
    ammunition at Turner’s, and her belief that unless she helped
    Pitts evade law enforcement, he would kill her and their child.
    But the jury was entitled to disbelieve Cummings’s self-serving
    testimony and indeed, Cummings’s credibility was very much at
    issue at trial. The prosecution presented evidence that
    Cummings had a practice of lying when it benefitted her. For
    24
    instance, she told McCullers she would eventually win back
    Hicks’s affections by “playing dumb.” After the shooting, when
    Hicks called Cummings to ask why she had brought Pitts over to
    shoot up the house, Cummings lied and said she was in bed.
    And, when Cummings was first questioned by law enforcement,
    she initially lied and denied any knowledge of a shooting.
    3. Analysis as to Mercado
    Mercado argues that substantial evidence does not support
    her conviction for first degree murder because there was
    insufficient evidence that: (1) she harbored an intent to kill; (2)
    she knew of Pitts’s intent to kill; (3) she entered into an
    agreement with Cummings to kill; and (4) she acted with
    deliberation and premeditation.16
    There was ample evidence adduced at trial to support the
    jury’s findings as to all four elements.
    First, Mercado made several statements from which the
    jury could reasonably conclude an intent to kill. After McCullers
    posted pictures of herself having fun at a waterpark with Hicks,
    Mercado sent her several messages on Facebook stating that
    McCullers’s children would wake up to Jesus, and that she
    should kiss her children goodbye every time she went to the
    AM/PM convenience store because she would not return. As the
    16In footnote 15 of her opening brief, Mercado makes a
    passing comment about how the trial court erroneously denied a
    defense motion in limine to preclude the prosecution from
    proceeding under a theory of implied malice second degree
    murder. We need not reach the issue of whether the trial court’s
    ruling was in fact erroneous as the juries convicted both
    defendants of first degree murder.
    25
    dispute continued to escalate between Cummings and McCullers,
    Mercado sent additional threats to McCullers such as: “ ‘I’m with
    that killing shit bitch. Fuck a fight.’ ” She asked McCullers how
    she would feel if Hicks “was found dead at AM/PM,” warned
    McCullers to be careful of her “kids and dogs,” and promised
    McCullers that unless she left Cummings alone, she would “wind
    up missing.” Immediately after the encounter with McCullers at
    DD’s Discounts and just hours before the shooting, Mercado left
    McCullers a voicemail warning her that Mercado would come at
    her unexpectedly, and that it was now Mercado’s turn. Mercado’s
    statements were explicit and direct threats to the lives of
    McCullers, Hicks, and their children from which the jury could
    reasonably conclude that Mercado harbored an intent to kill.
    Second, Mercado made statements that demonstrated her
    knowledge that Pitts had an intent to kill. Just hours after the
    encounter at DD’s Discounts, Mercado spoke with Hodges (the
    girlfriend of Mercado’s brother) and revealed her plan that she
    and Pitts were “going to go shoot up that house” in retaliation for
    the confrontation initiated by McCullers. Hours after this
    conversation, Pitts in fact did precisely what Mercado said he
    would do—shoot up the Monaco house. The jury could reasonably
    infer from this evidence that Mercado knew of (and shared)
    Pitts’s intent to kill.
    Third, there was overwhelming evidence from which the
    jury could reasonably conclude there was an agreement between
    Mercado and Cummings to commit murder in the first degree.
    The jury heard evidence that defendants both made threats that
    they would have Pitts shoot up the Monaco house, that
    defendants jointly went with Pitts to purchase ammunition at
    Turner’s and led him directly to the Monaco house afterward,
    26
    that defendants waited for Pitts to finish shooting before driving
    him away from the scene, and that defendants assisted Pitts in
    seeking refuge at his mother’s home. This evidence, coupled with
    evidence that the defendants shared a close friendship, was more
    than enough to support the jury’s finding of an agreement to kill.
    Fourth, Mercado’s statements and conduct demonstrated
    deliberation and premeditation. As to planning activity, the jury
    heard evidence that Mercado planned to shoot up the Monaco
    house with Pitts, that Mercado went with Pitts and Cummings to
    purchase ammunition for a firearm already in Pitts’s possession,
    that Mercado preferred to “pop a cap” rather than use a taser,
    and that Mercado drove Pitts and Cummings to the Monaco
    house directly from Turner’s under the cover of darkness. With
    regards to motive, the jury heard evidence that Mercado was fed
    up with the harassment and poor treatment that she believed her
    best friend was receiving at the hands of McCullers and Hicks.
    And with respect to the manner of killing, the jury heard
    evidence that Makiya stood up as the second shot was fired into
    the house, that Makiya was approximately the same height as
    McCullers, and that a person standing outside could easily
    discern shapes and figures through the sheer curtains. The jury
    could reasonably infer from this evidence that Pitts shot at
    Makiya believing she was McCullers, thus reflecting a
    preconceived design of killing the person who Mercado saw as the
    source of Cummings’s harassment.
    Mercado argues that she was a mere bystander to the
    dispute between Cummings and McCullers, that her threatening
    messages amounted to nothing more than puffery and bravado,
    that she merely accompanied Cummings and Pitts to Turner’s
    and bought nothing herself, and that she had no idea that Pitts
    27
    would fire at the Monaco house. Mercado also points to
    Cummings’s testimony at trial that Mercado knew of Pitts’s
    violent tendencies, and thus acted under duress on the night of
    August 9. Mercado, like Cummings, is asking this court to
    reweigh the evidence and to second guess the jury’s credibility
    determinations. For the reasons discussed above, we decline to
    do so. (See In re E.H., supra, 108 Cal.App.4th at p. 669.)
    In sum, the record before us contains more than substantial
    evidence to support the juries’ verdicts as to count 1 for both
    defendants.
    II.    Remand for resentencing on count 2 is necessary
    because of trial court error and newly enacted
    legislation
    A. The trial court erroneously applied the merger
    doctrine to count 2
    Defendants contend, and the Attorney General agrees, that
    the trial court erroneously applied the merger doctrine when
    sentencing on count 2. We agree as well.
    As the Supreme Court explained in People v. Chun (2009)
    
    45 Cal.4th 1172
    , 1188, the merger doctrine developed as a limit
    on the second degree felony-murder rule to “ameliorate [the
    rule’s] perceived harshness.” Under the merger doctrine, “the
    underlying felony must be an independent crime and not merely
    the killing itself. Thus, certain underlying felonies ‘merge’ with
    the homicide and cannot be used for purposes of felony murder.”
    (Id. at p. 1189.) “When the underlying felony is assaultive in
    nature, such as a violation of section 246 or 246.3, . . . the felony
    merges with the homicide and cannot be the basis of a [second
    degree] felony-murder instruction.” (Id. at p. 1200.)
    28
    As the parties correctly point out, the merger doctrine has
    no application in this case because the trial court never
    instructed the juries on the felony-murder rule as a theory of
    liability for either first or second degree murder. Rather, the jury
    was exclusively presented with aiding and abetting (first and
    second degree murder) and conspiracy (first degree murder) as
    theories of liability. Thus, the trial court erred by applying the
    merger doctrine to count 2.
    While the parties agree that the trial court erroneously
    applied the merger doctrine, they disagree about how this court
    should proceed with remand in light of this error. Defendants
    argue that we should construe the trial court’s sentence on count
    2 as proceeding under section 654, and thus we should remand
    with instructions to the trial court to resentence based on
    Assembly Bill No. 518 (2021–2022 Reg. Sess.), which recently
    amended section 654 to allow for judicial discretion in selecting
    the longer or shorter term when a defendant is convicted for the
    same act under different provisions of the law.17 The Attorney
    17 At the time of defendants’ sentencing in March 2021,
    section 654, subdivision (a) required that a defendant who
    committed an act punishable by two or more provisions of law be
    punished under the provision that provided for the longest
    possible term. (Stats. 1997, ch. 410, § 1). “Effective January 1,
    2022, Assembly Bill No. 518 amended section 654, subdivision (a)
    to permit an act or omission punishable under two or more
    provisions of law to ‘be punished under either of such provisions.’
    [Citation.] Thus, under newly amended section 654, a trial court
    is no longer required to punish under the longest possible term of
    imprisonment when multiple offenses are based on the same act
    29
    General argues that the record does not support such a
    construction of the trial court’s ruling, and in any event, section
    654 does not apply to the facts of this case.
    We reject defendants’ request to construe the trial court’s
    sentence on count 2 as having been imposed and stayed pursuant
    to section 654. It is abundantly clear from the record that the
    trial court stayed and imposed the seven-year sentence based on
    the merger doctrine, and not pursuant to section 654. The trial
    court stated multiple times that it was proceeding under the
    merger doctrine, and explicitly recognized “that this is different
    than [section] 654.” Because there is no basis in the record from
    which to construe the trial court’s sentence as having proceeded
    under section 654, we decline defendants’ request to remand with
    instructions to resentence in light of Assembly Bill No. 518. To
    the extent the Attorney General is asking this court to remand
    with instructions for the trial court not to apply section 654, we
    decline that request as well. It is up to the trial court at
    resentencing to decide in the first instance whether section 654
    applies (or does not apply) to the circumstances of this case. We
    express no opinion on that matter.
    B. Remand is required for the trial court to consider
    Senate Bill No. 567 and Assembly Bill No. 124
    Defendants contend, and the Attorney General agrees, that
    the matter must be remanded for resentencing as to count 2 for
    or omission. [Citation.] Section 654 ‘now provides the trial court
    with discretion to impose and execute the sentence of either term,
    which could result in the trial court imposing and executing the
    shorter sentence rather than the longer sentence.’ ” (People v.
    White (2022) 
    86 Cal.App.5th 1229
    , 1236.)
    30
    the trial court to consider Senate Bill No. 567 and Assembly Bill
    No. 124, both of which apply retroactively under In re Estrada
    (1965) 
    63 Cal.2d 740
    . As explained below, we agree as well.
    Effective January 1, 2022, Senate Bill No. 567 and
    Assembly Bill No. 124 amended section 1170, the determinate
    sentencing law, “in several fundamental ways.” (People v. Flores
    (2022) 
    73 Cal.App.5th 1032
    , 1038.) Both Senate Bill No. 567 and
    Assembly Bill No. 124 apply retroactively to defendants whose
    convictions were not yet final when the laws became effective.
    (Flores, at p. 1039 [Senate Bill No. 567]; People v. Banner (2022)
    
    77 Cal.App.5th 226
    , 240 [Assembly Bill No. 124].)
    Senate Bill No. 567 “amended section 1170, former
    subdivision (b) by making the middle term the presumptive
    sentence for a term of imprisonment unless certain circumstances
    exist.” (People v. Flores, supra, 73 Cal.App.5th at p. 1038.)
    “Under this change in law, a trial court ‘may impose a sentence
    exceeding the middle term only when there are circumstances in
    aggravation of the crime that justify the imposition of a term of
    imprisonment exceeding the middle term, and the facts
    underlying those circumstances have been stipulated to by the
    defendant, or have been found true beyond a reasonable doubt at
    trial by the jury or by the judge in a court trial.’ ” (Id. at p. 1038,
    fn. 10.)
    Assembly Bill No. 124 amended section 1170 such that the
    trial court is now required to impose the lower term (unless
    contrary to the interests of justice with aggravating
    circumstances outweighing mitigating circumstances) if the
    defendant’s own “psychological, physical, or childhood trauma,
    including, but not limited to, abuse, neglect, exploitation, or
    31
    sexual violence” was a “contributing factor in the commission of
    the offense.” (§ 1170, subd. (b)(6)(A).)
    Here, the trial court listed a number of different factors in
    support of its decision to impose the upper term of seven years on
    count 2 as to both defendants including the vulnerability of the
    victim, the degree of cruelty, viciousness, and callousness
    present, and the level of planning and sophistication.
    Defendants, however, did not stipulate to these factors and the
    trial court did not specify that it was finding these aggravating
    factors true beyond a reasonable doubt, as now required by
    Senate Bill No. 567. Additionally, the trial court did not
    articulate on the record whether there was evidence (or not) that
    psychological, physical, or childhood trauma contributed to the
    commission of the underlying offense, which would militate in
    favor of imposing the lower term under Assembly Bill No. 124.
    Accordingly, remand is necessary for the trial court to
    resentence on count 2 and apply Senate Bill No. 567 and
    Assembly Bill No. 124.
    32
    DISPOSITION
    Defendants’ sentences on count 2 are vacated, and the
    matter is remanded for resentencing as to count 2 only. The
    judgments of conviction for both defendants are otherwise
    affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL
    REPORTS
    NGUYEN (KIM), J.*
    We concur:
    EDMON, P. J.
    EGERTON, J.
    * Judge of the Los Angeles Superior Court, assigned by the
    Chief Justice pursuant to article VI, section 6 of the California
    Constitution.
    33