People v. Cerda ( 2020 )

Filed 2/7/20
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B232572
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA041397)
v.
PETER JUAN CERDA et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Hayden Zacky, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Peter Juan Cerda.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant Kyle Allin Johnson.
*
Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for partial publication. The
portions of this opinion to be deleted from publication are
identified as those portions between double brackets, e.g., [[/]].
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pitney, Acting
Senior Assistant Attorney General, William Shin and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and appellants Peter Juan Cerda and Kyle
Allin Johnson were involved in shooting into two separate houses
with an assault rifle. They appealed their convictions of one
count of murder and twenty-three counts of attempted
premeditated murder with gang and firearm enhancements.
They raised claims of insufficiency of the evidence, instructional
error, ineffective assistance of counsel, cumulative error, and
sentencing error. In a nonpublished opinion filed on July 18,
2013, we affirmed the judgments but vacated Johnson’s sentence
and remanded for resentencing. (People v. Cerda et al. (Jul. 18,
2013, B235674) [nonpub. opn.].)
The matter was reviewed again, based on Cerda’s motion to
recall the remittitur. In a nonpublished opinion filed on January
23, 2015, we reversed Cerda’s first degree murder conviction and
remanded the matter to the trial court, allowing the district
attorney to retry the murder charge or accept a reduction of
Cerda’s conviction to second degree murder.1 (People v. Cerda et
al. (January 23, 2015, B235674) [nonpub. opn.].)
While Cerda’s and Johnson’s appeals were pending, the
Legislature enacted Senate Bill No. 1437 (SB 1437) (Stats. 2018,
ch. 1015), which amended the laws related to malice and
accomplice liability for murder. The Legislature also enacted
1
Counsel for Cerda notes that the district attorney did not
opt to retry him for first degree murder.
2
Senate Bill No. 620 (SB 620) (Stats. 2017, ch. 682), which gave
trial courts discretion to strike or dismiss certain firearm
enhancements.
Now, the matter has returned to us once again. The
Supreme Court granted appellants’ petition for review and has
transferred the matter to us with directions to vacate our earlier
decision and reconsider the cause in light of SB 1437, SB 620,
and People v. Canizales (2019) 7 Cal.5th 591 (Canizales), which
limited the application of the kill zone theory for attempted
murder.
In accordance with the Supreme Court’s order, we vacate
the January 23, 2015 nonpublished opinion. In the published
portion of this opinion, we discuss why the evidence was
sufficient to support the kill zone theory of liability.
In the nonpublished portion, we reject Cerda’s and
Johnson’s other arguments that (1) SB 1437 should apply to
attempted murder; (2) the natural and probable consequences
doctrine should not apply to attempted premeditated murder;
and (3) SB 1437 should apply retroactively without complying
with its petition procedure. We vacate Cerda’s and Johnson’s
sentences and remand for resentencing in light of SB 620. The
trial court is also to afford Johnson an opportunity to make a
record that complies with the requirements of People v. Franklin
(2016) 63 Cal.4th 261, 283–284 (Franklin). The decision
regarding Cerda’s and Johnson’s previously raised claims of error
remains the same as in the prior opinion. We again reverse
Cerda’s first degree murder conviction because the trial court
improperly permitted the jury to find that he was guilty under
the natural and probable consequences doctrine. The judgments
of conviction are otherwise affirmed.
3
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Prosecution Evidence
1. Katrina Place shooting (counts 1–14)
On February 8, 2008, 14-year-old Robert E.2 was at his
house on Katrina Place in Palmdale. He was with his mother,
Luz E., his sisters, Mayra E. and Christina E., and his brothers,
including 12-year-old Francisco E. They were throwing a party
at the house.
Later in the evening, Robert E. heard gunshots while he
was in the garage with Ricardo R., one of his sister’s friends.
Robert E. heard something hit an area immediately next to him.
Upon hearing the gunshots, he ducked and crawled into the
house. He heard about ten shots rapidly fire. Ricardo R. heard
about fifteen shots. The garage door was closed at the time.
Francisco E. was sitting at a dining room table with other
family members and friends, including Gerardo Salazar,
Mayra E., Stephanie R., Adriana R., Denise F., and Liz S.
Windows to the dining room were located between the front door
of the house and the garage. The dining room was on the first
floor. Francisco E. heard more than ten gunshots fired. Mayra
E. pushed him to the floor.
Adriana R. was in the dining room, sitting next to Salazar,
who had accompanied her to the house. She heard about
eighteen shots ricocheting off the walls. When she heard the
2
To protect the personal privacy interests of the victims,
other than Gerardo Salazar who was killed, we will refer to each
by first name and last initial. (Cal. Rules of Court, Rule 8.90,
subd. (b)(4).)
4
shots, she threw Stephanie R. on the ground. Stephanie R. was
13 or 14-years-old at the time. Adriana R. was hit on the left eye
by a foreign object, causing her to bleed. Glass hit the back of
Mayra E.’s neck. She was sitting to the left of Salazar.
Once the shots ceased, Adriana R. crawled to the kitchen,
then to the living room. Mayra E. crawled to the bathroom.
Francisco E. also crawled to the bathroom. After twenty seconds,
Francisco E. and Mayra E. returned to the dining room.
Francisco E. saw holes in the wall and in the curtain. Salazar
was bleeding, face-down on the floor. Salazar died from a
gunshot to the head.
Luz E. and her husband, Sergio H., were in a bedroom
when she heard about twenty gunshots. Christina E. was in
another bedroom with her boyfriend, Daniel D. Four-year-old
Aliza V. and 9-month-old Denise R. were in the master bedroom.
Each of these bedrooms was on the second floor.
When the shots were fired, Daniel D. looked outside the
window and saw a large pickup truck. He saw muzzle flashes
from the pickup truck. The truck remained stationary when the
shots were fired. Daniel D. saw the shooter in the back of the
truck, leaning out and firing the gun. Daniel D. went outside to
try to pursue the truck, but it was gone.
After the shooting, Luz E. saw bullet holes in the front of
the house. Ricardo R. saw a hole in the garage door. Robert E.
saw a hole in a television, located in the back of the garage, and
one in a refrigerator.
2. Morning Circle shooting (counts 15–24)
About thirty minutes after the Katrina Place shooting,
gunshots woke Vicente V., as he was asleep at his house on
Morning Circle in Palmdale. Twelve persons lived there,
5
including members of his immediate family and his brother’s
family.
Vicente V.’s house had two floors. On the night of the
shooting, he and his wife, Maria, were in their bedroom located
immediately on top of the garage conversion. Their 13 and
7-year-old sons, Gerardo and Esteban, slept in a bedroom above
their parents’ bedroom. Their older son, Vince V., Jr., was
sleeping downstairs. Their 15-year-old daughter, Cassandra, was
sleeping in the family room. Their 16-year-old daughter,
Patricia, was sleeping in another bedroom. Vicente V.’s brother,
Victor, and his wife, Veronica, slept in the master bedroom with
their 2-year-old daughter, Naomi, and 4-year-old son, Alexander.
Vicente V.’s 11-year-old nephew, Victor, Jr., and 10-year-old
niece, Veronica, were sleeping in a bedroom on the second floor,
above the garage.
After the shooting, Vicente V. went outside and saw six
damaged areas. Two holes were above his front door. Another
hole was in a stone facade which was to the right of the front
door. There were also holes above and through a large window
which was above the front door. The side of the garage, near the
front entry, sustained a hole or additional damage. There was
also damage to a fence post. Bullets struck multiple areas of the
interior, including a staircase leading to an upstairs bedroom and
the master bedroom.
Vicente V. denied being a member of the Val Verde Park
gang. But he stated that Vince V., Jr. was a member.
3. Forensic evidence
Robert Keil, a senior criminalist for the Los Angeles County
Sheriff’s Department, examined the house on Katrina Place after
the shooting. Keil discovered sixteen bullet holes on the exterior
6
of the house, including one on the garage, one on the frame of the
front door, and several around and through the dining room
window. One bullet penetrated the garage door and a television
inside of the garage before striking the back wall of the garage.
Other bullets penetrated the exterior of the house and struck
other areas inside, including the interior back wall of the dining
room, a kitchen cabinet, and the entry to the kitchen. One bullet
had blood, human tissue, and bone residue on it. This bullet
went through the dining room window, penetrated Salazar’s
head, and struck the corner of the room.
Other bullets penetrated the exterior on the second story of
the house, including the exterior wall and the tiled roof of the
house. One of these bullets first penetrated two interior walls in
an upstairs bedroom and a sliding door, before striking another
wall. Walls by the upstairs staircase and other bedrooms were
also struck. Other shots penetrated a bedroom wall and struck a
hallway wall. Keil also found a bullet fragment in the master
bathroom, which traveled across the upstairs hallway and
through the master bedroom.
Sixteen spent casings were located on the street outside the
Katrina Place house. The casings were for 7.62 by 39-millimeter
rounds. Typically, an AK-style rifle uses this size of ammunition.
Keil explained that an AK-style rifle is a semiautomatic assault
rifle commonly used by military forces. The AK-47 is included in
this series of assault rifle. The projectiles from these rifles travel
at up to four times the velocity of a handgun, such as those using
nine-millimeter ammunition. They have the potential for
penetrating substantial barriers, including car doors and exterior
walls of residences, as well as multiple additional walls. By
7
contrast, a nine-millimeter bullet would not have the power to
penetrate an exterior wall.
Keil determined that by the way the casings were grouped
together, eleven shots were fired from one area in front of the
Katrina Place house, and five shots were fired from another area
about fifteen feet away. The two groupings of casings were not
consistent with shooting all sixteen shots in rapid succession.
Ten bullet fragments were discovered in the house. Based on the
caliber, rifling characteristics, and bullet type, these fragments
were consistent with the casings found in the street.
Keil also examined four additional casings and four live
rounds which were collected in front of the house on Morning
Circle. He saw that they matched the casings from the Katrina
Place shooting. They were the same caliber and made by the
same manufacturers. Keil also determined the casings were all
fired from the same rifle.
4. Statements of Pedro A.
The prosecutor called Pedro A. as a witness. Pedro A. was
a member of the Evil Klan gang. His nickname was Flaco. Pedro
A. was incarcerated in state prison for a gang-related attempted
murder conviction. Pedro A. believed that he would be in
protective custody or get killed if he assisted the district
attorney’s office or the police, or otherwise acted as a snitch. 3
Before calling Pedro A. as a witness, the prosecutor and Los
Angeles County Sheriff’s Detective Donna Cheek spoke with him.
However, during Pedro A.’s testimony, he claimed to not
remember or denied making any statements to them. He also
claimed to not remember or denied making any statements to Los
3
Personal privacy interests support not identifying Pedro A.
by his full name. (Cal. Rules of Court, rule 8.90, subd. (b)(10).)
8
Angeles County Sheriff’s Detective Howard Cooper. Detective
Cheek and Detective Cooper were the investigating officers for
the Katrina Place and Morning Circle shootings.
Detective Cheek recounted the statements Pedro A. made
before his testimony. During the conversation, she and the
prosecutor reviewed Pedro A.’s 2008 statement to Detective
Cooper. Detective Cooper’s 2008 interview with Pedro A. was
recorded and played for the juries.4
On February 10, 2008, Pedro A. was at a party at a house
of a person named Jorge.5 Pedro A. was with Cerda, Johnson,
and their friend, Saul Trujillo.6 Pedro A. left the party for a short
time. When he returned, he learned that Cerda, Johnson, and
Trujillo had gone to another party on Katrina Place. Cerda and
Trujillo returned and told Pedro A. that 18th Street gang
members had beaten up Johnson. When Johnson returned from
the Katrina Place party, Pedro A. saw that his lip was bleeding,
and he was upset. They made plans to retaliate against the
persons who beat up Johnson. They left the party and Cerda
obtained an AK-47 from his house. Pedro A. described the AK-47
as a long black rifle with a wooden stock. He confirmed the
4
Cerda and Johnson were jointly tried, but each had his own
jury.
5
The reporter’s transcripts refer to this person as “George.”
However, his name is spelled “Jorge” in the exhibits, including
the transcript of the interview with Pedro A. For consistency
with the prior opinions, we spell his name “Jorge.”
6
Pedro A. referred to Cerda, Johnson, and Trujillo by their
nicknames, which were Snaps, Casper, and Dreamer,
respectively.
9
magazine was a “banana clip.” Cerda, Johnson, and Trujillo got
into a Ford F-150, driven by a person named Jose Casillas.7
Cerda was in the front passenger seat. Trujillo was behind him.
Johnson was behind the driver. They went to the party where
Johnson was beaten up. Pedro A. did not join them. Several
minutes later, he heard gunshots.
A couple of days after the shooting, Pedro A. spoke to
Johnson and Cerda. Johnson told him that they drove to the
Katrina Place house. They drove around the block once. Johnson
was lying down in the truck bed with the rifle. When they
stopped in front of the house again, Johnson sat up and fired into
the house. Johnson also told Pedro A. that Cerda shot up a house
belonging to someone named Tank from the Val Verde Park gang
which was “beefing” with their gang.
5. Party at Jorge’s house
Fifteen-year-old Erika V. and her sister, Yasmine, attended
the party at Jorge’s house. The Katrina Place house was about a
block from Jorge’s house. At about 11:00 p.m. to 12:00 a.m.,
Casillas drove Erika V. and Yasmine home in a dark green
pickup truck. She knew Casillas as “Puppet.” At the party,
Johnson was introduced to Erika V. as “Casper.” As Erika V. was
going home, she saw Johnson coming from the direction of the
Katrina Place house. He was staggering as if he was drunk.
6. Cerda’s jailhouse phone calls
Cerda made two phone calls while in jail. Both were
recorded and played for his jury. The first call was to his
7
Jose Casillas was charged as a defendant in this case. He
was tried separately from Cerda and Johnson. Pedro A. referred
to him by his nickname, Puppet.
10
parents. His mother stated, “They said they were gonna let you
go today.” Cerda responded, “No, no, no. I’m not[,] mom. I’m
gonna be here for a long time.” Cerda then told his father,
“Listen to me[,] they’re not gonna release me.” Cerda explained,
“I’m gonna be in here because I was involved in a murder. My
friend shot someone and killed ‘em. And I shot at a house but I
didn’t kill nobody, but my friend shot and killed someone. I shot
a house but I didn’t kill nobody.”
In the second call, Cerda spoke to a female named Vanessa
and her father, admitting that he was involved in a murder.
7. Johnson’s police interview
Detective Cooper, along with Los Angeles County Sheriff’s
Detective Mitch Robison, interviewed Johnson. The interview
was recorded and played for Johnson’s jury.
Johnson initially denied involvement in the shootings.
Johnson explained that he was at a party and hit up a person and
argued with him. Johnson was drunk. Cerda and Trujillo told
him to calm down. They told Johnson that they would take care
of it. He claimed to not know what Cerda and Trujillo were going
to do. Johnson left the party.
Robison acknowledged that Johnson was scared. He
encouraged Johnson to “man up.” Cooper asked Johnson if he
meant to kill somebody or only scare them. Johnson stated that
he intended to only fight. Johnson’s friends told him, “We’re
going to bust a mission.” Johnson responded that he was not
going. Johnson continued to deny that he went with them.
The detectives informed Johnson that his “homeboy” told
them that he “busted up” the other house. Johnson stated that
Cerda obtained a gun and asked him if he wanted to go. Cerda
explained to Johnson that he should go with them because he
11
was joining the gang. Johnson admitted to accompanying them.
They drove in a black Ford F-150. However, he stated that Cerda
was in the bed of the truck and fired shots when they reached the
house. He further stated that Cerda also shot at the other house.
Johnson continued to deny shooting at the first house. The
detectives continued to tell Johnson that his “homeboys” said that
he committed the shooting.
When Robison explained to Johnson the importance of
telling the truth, he finally admitted to firing the gun. Johnson
stated that he did not mean to do anything wrong because he was
drunk. He admitted to shooting at the “18th Street” house. He
also confirmed that Cerda shot at the “Val Verde” house. He
further stated that he accompanied Cerda to get his gun. He saw
Cerda load the gun. Johnson was instructed to start shooting
when they stopped driving. Johnson was told that he would have
to shoot because he was joining a gang. He admitted again to the
shooting and confirmed that he fired approximately fifteen to
sixteen times from the bed of the truck.
After Johnson shot at the first house, he switched places
with Cerda, who went to the bed of the truck. Cerda then fired
shots at the “Val Verde” house.
8. Gang evidence
Los Angeles County Sheriff’s Detective Robert Gillis was
assigned to investigate gangs in the Antelope Valley. In
Palmdale in 2008, the Locos Marijuanos gang, or LMS, consisted
of ten members. During that time, the primary activities of LMS
included vandalism, vehicle theft, carrying firearms, and
shooting. Gillis opined that in 2008, Johnson and Cerda were
LMS gang members, based on their prior admissions to
membership and associations with other members. Gillis also
12
spoke to Jose Casillas, who admitted his membership in the LMS
gang.
In 2008, a rivalry existed between the LMS gang and a
gang called Val Verde Park, or VVP. LMS was allied with
another gang called Lancas. Vicente V. was a founding member
of the Val Verde Park gang. His son, Vince V., Jr., was also a
member. In 2008, Lancas members shot at Val Verde Park
members around the corner from the home of Vicente V.
The 18th Street gang is one of the largest Latin gangs in
Southern California. There were 18th Street gang members in
the Antelope Valley. However, Gillis was not aware of any
rivalries between the 18th Street gang and LMS.
Gillis discussed multiple facets of gang culture, including
initiation into the gang, loyalty to the gang, and the importance
of respect. Gang members were required to back up their fellow
gang members.
Gillis discussed the significance of retaliation when a gang
member is beaten up by rival gang members. In Gillis’s
experience, the beaten gang member would retaliate with greater
violence. Failure to retaliate would negatively impact the
reputations of the beaten gang member and his or her gang. The
gang would appear weak and be subjected to more attacks by the
rival gang.
The prosecutor asked Gillis to answer a hypothetical
question derived from the evidence of the Katrina Place shooting.
Gillis opined that the crime was committed for the benefit of the
gang whose members committed the shooting. Gillis reasoned
that the retaliatory shooting intimidated and created fear in the
community. He explained the significance of using an AK-47
assault rifle. Its sole purpose was to kill. It was capable of
13
penetrating multiple walls. Because of the high-powered
capability of the AK-47, the shooting exceeded retaliations that
would normally occur. It was retaliation “with an exclamation
point on it.”
When the prosecutor asked a hypothetical question, which
mirrored the shooting of the Morning Circle house, Gillis
similarly opined that the crime benefited the gang. He stated the
second shooting would intimidate the community. Persons in the
community would hear that the perpetrators were willing to
commit two shootings against two separate gangs. The second
shooting would also show that the gang members did not fear
apprehension by law enforcement officers. Gillis explained that
they would have boldly committed the second shooting when the
entire law enforcement agency would be nearby investigating the
first shooting, which had occurred only a short time before.
Gillis stated that it was also common for multiple gang
members to participate in drive-by shootings. Each gang member
would assume a role, consisting of the driver, the shooter, and
lookouts who would alert the others to the presence of law
enforcement officers.
Gillis discussed the influence of the Mexican Mafia over
Latin street gangs in Southern California. The Mexican Mafia
prohibited gang members from shooting at children. It also
required gang members to get out of their cars and walk up to
their victims before shooting to avoid injuring innocent persons,
as could occur in a drive-by shooting. Violating these rules could
result in punishment by death from the shooter’s own gang or a
rival gang. However, gang members did not always follow these
rules. Gillis also clarified that the trend has returned to drive-by
shootings.
14
B. Defense Evidence
Johnson testified on his own behalf. He was 16 years old at
the time of the shootings.
On the night of the incidents, Johnson went to two parties.
Before arriving at the first party, Johnson used crystal
methamphetamine. At the first party, he drank ten to fifteen
beers and smoked marijuana. He went to the second party at
Katrina Place with Pedro A. and Trujillo. Johnson drank one or
two additional beers at the Katrina Place party, but he was
already drunk.
At the Katrina Place party, Johnson asked several men,
“Where you from?” Several persons surrounded Johnson and he
saw punches coming from all directions. He was hit several
times and knocked to the ground. He fled the party by jumping
over a rear wall. He walked by himself to his house. He stayed
at his house the rest of the night. He denied being present for
any shooting.
Johnson denied telling Pedro A. that he had been in the bed
of a truck. He did not know from whom Pedro A. heard this
information.
Johnson claimed that after he was taken into custody, a
detective named Robert Jones told him to “just let them know
what they want to know” and he could go home.
Johnson next spoke with Detective Cooper and other
detectives. He denied involvement in the shootings. He told
Cooper that two others were involved in the shooting. Johnson
stated that Cerda got in the bed of the truck and shot at the
house. He also stated that Cerda and Trujillo got in the bed of
the truck. Johnson told different stories because he was
confused. He ultimately admitted to shooting. Johnson
15
recognized that the detectives did not believe him when he
initially denied involvement. Accordingly, he believed that if he
told the detectives what they wanted to hear, he could go home.
Johnson testified that he lied to Detective Cooper in three
interviews about being in the truck when the shooting occurred.
He also testified that he lied about telling Detective Cooper that
he drank only two to four beers. Johnson recognized that telling
the police that he shot up a house and killed somebody would
affect his life.
Johnson admitted that he was previously a member of
Locos Marjiuanos from 2007 to when he was arrested in 2008.
He went by the moniker Casper. He also acknowledged that
Trujillo was an LMS member named Dreamer. Johnson had
known Cerda for about one year prior to the shootings. He
testified that Cerda was not an LMS gang member. Johnson also
disputed that LMS was in a rivalry with Val Verde Park.
Johnson confirmed that if a gang member gets beaten up by
rival gang members, he should retaliate. If the beaten gang
member fails to retaliate, his fellow gang members would beat
him up. Failure to retaliate would bring shame to the gang.
Johnson testified that although LMS was not in a war against
18th Street, his getting beaten up showed disrespect to him. He
was expected to do something about it.
C. Rebuttal evidence
Both juries heard the recorded police interviews with
Johnson that were initially played only for his jury.
16
II. Procedure
Cerda’s jury convicted him of first degree murder (Pen.
Code, § 187, subd. (a); count 1).8 Johnson was convicted of second
degree murder (§ 187, subd. (a); count 1). The juries convicted
both Cerda and Johnson of 13 counts of attempted premeditated
murder for the Katrina Place incident (§§ 664, 187, subd. (a);
counts 2–14) and 10 counts of attempted premeditated murder
for the Morning Circle incident (§§ 664, 187, subd. (a); counts 15-
24). The gang enhancement was found true as to each count
against both Cerda and Johnson. (§ 186.22, subd. (b)(1)(C).)9
For counts 1 through 14, Cerda’s jury found that a principal
used and discharged a firearm, causing great bodily injury or
death. (§ 12022.53, subds. (b), (c), (e).) For counts 15–24, Cerda’s
jury found that he personally used and discharged a firearm.
(§ 12022.53, subds. (b), (c).)
For counts 1 through 14, Johnson’s jury did not find true
the enhancements for personal use of a firearm, personal
discharge of a firearm, or personal discharge of a firearm causing
death or great bodily. (§ 12022.53, subd. (b), (c), (d).) For counts
15 through 24, Johnson’s jury found that a principal used and
discharged a firearm. (§ 12022.53, subds. (b), (c), (e).)
8
All further undesignated statutory references are to the
Penal Code.
9
Because murder and attempted premeditated murder are
felonies “punishable in state prison for life,” the gang penalty
provision, under section 186.22, subdivision (b)(5), should have
applied, instead of the gang enhancement under subdivision
(b)(1)(C). (People v. Lopez (2005) 34 Cal.4th 1002, 1006–1007.)
17
On count 1, the trial court sentenced Cerda to 25 years to
life, plus an additional 25 years to life for the firearm
enhancement. On counts 2 through 14, the court imposed
consecutive life terms with a minimum parole eligibility period of
seven years, plus an additional 25 years to life for the firearm
enhancement. The total sentence on counts 2 through 14 was
416 years to life. On counts 15 through 24, the trial court
increased each of the minimum parole eligibility terms to 15
years pursuant to the gang penalty provision, plus an additional
twenty years for the discharge of a firearm enhancement. The
trial court also imposed the terms on counts 15 through 24
consecutively.10 The total term on counts 15 through 24 was 350
years to life. Cerda’s total sentence was 816 years to life.
The trial court sentenced Johnson to 15 years to life on
count 1. On counts 2 through 14, the court imposed consecutive
life terms, increasing the minimum parole eligibility term to 15
years, pursuant to the gang penalty provision. The total term on
counts 1 through 14 was 210 years to life. On counts 15 through
24, the trial court sentenced Johnson to 200 years to life.11 For
the discharge of a firearm enhancements, the trial court imposed
10
The court imposed and stayed the terms for the lesser
firearm enhancements as to each count. (§ 12022.53, subd. (f).)
11
On counts 15 through 24, the trial court also imposed and
stayed the minimum parole eligibility term for the gang penalty
provision. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47
Cal.4th 583, 595; People v. Gonzalez (2010) 180 Cal.App.4th 1420,
1427.) However, the trial court did not account for the minimum
parole eligibility term for attempted premeditated murder, which
is life with the possibility of parole after serving a term of at least
seven years. (§§ 664, subd. (d), 3046, subd. (a)(1).)
18
an additional 20 years each to counts 15 through 24.12 Johnson’s
total sentence was 410 years to life.
DISCUSSION
[[I. Cerda’s first degree murder conviction under the natural
and probable consequences doctrine
In our original opinion, we concluded there was sufficient
evidence to sustain Cerda’s conviction on the first degree
premeditated murder count for the death of Gerardo Salazar.
Subsequently, our Supreme Court held in People v. Chiu (2014)
59 Cal.4th 155, 158–159 (Chiu), that “an aider and abettor may
not be convicted of first degree premeditated murder under the
natural and probable consequences doctrine. Rather, his or her
liability for that crime must be based on direct aiding and
abetting principles. [Citation.]” Under the natural and probable
consequences doctrine, a person who aids and abets an intended
target crime is also guilty of a nontarget crime committed by a
perpetrator, if the nontarget crime was a reasonably foreseeable
consequence of the intended target crime. (People v. Medina
(2009) 46 Cal.4th 913, 920; People v. Prettyman (1996) 14 Cal.4th
248, 271; Chiu, supra, 59 Cal.4th at p. 161.) Chiu concluded that
“punishment for second degree murder is commensurate with a
defendant’s culpability for aiding and abetting a target crime that
would naturally, probably, and foreseeably result in a murder
under the natural and probable consequences doctrine.” (Id. at
p. 166.)
12
On Counts 15 through 24, the trial court imposed the 20
year enhancements for discharge of a firearm and imposed and
stayed the lesser firearm use enhancement. (§ 12022.53,
subd. (f).)
19
Chiu raised the possibility that Cerda’s first degree murder
conviction should not have been affirmed. We therefore recalled
the remittitur in this case and requested supplemental briefing
from Cerda and the Attorney General.
A. Error under Chiu
As theories of liability for murder, the trial court instructed
Cerda’s jury on the natural and probable consequences doctrine,
as well as on direct aiding and abetting principles. The
instruction improperly permitted the jury to find that Cerda was
guilty of first degree premeditated murder as a natural and
probable consequence of the target crime of shooting at an
occupied house. (Chiu, supra, 59 Cal.4th at p. 166.) The
Attorney General properly concedes this error.
B. Prejudice
As Chiu explained: “When a trial court instructs a jury on
two theories of guilt, one of which was legally correct and one
legally incorrect, reversal is required unless there is a basis in
the record to find that the verdict was based on a valid ground.
[Citations.]” (Chiu, supra, 59 Cal.4th at p. 167; People v.
Aledamat (2019) 8 Cal.5th 1, 13; Chapman v. California (1967)
386 U.S. 18, 24.) Cerda’s first degree murder conviction must be
reversed, unless we conclude beyond a reasonable doubt that the
jury based its verdict on the legally valid theory of direct aiding
and abetting. (Chiu, at p. 167.)
The record demonstrates the jury convicted Cerda of first
degree murder of Salazar under one of two theories. He was
either a direct aider and abettor of premeditated murder, or an
aider and abettor of shooting at an occupied house, which was the
target offense under the natural and probable consequences
20
doctrine, with murder as the reasonably foreseeable nontarget
offense.
The prosecutor argued these alternatives to the jurors. He
explained that even if they assumed Cerda did not intend to kill,
he was still guilty of murder under the natural and probable
consequences doctrine because anyone would recognize that
shooting at an occupied house with an assault rifle would result
in an occupant’s death.13
We cannot ignore the prosecutor’s comments in our
evaluation. Because the prosecutor urged the jurors to consider
and utilize the natural and probable consequences doctrine, we
cannot conclude beyond a reasonable doubt that the jury based
its verdict on the legally valid theory that Cerda directly aided
and abetted the premeditated murder, and not on the legally
invalid natural and probable consequences doctrine. (In re Lopez
13
The prosecutor argued: “[L]et’s even say that one of you at
this point says, look, I don’t think . . . they intended to kill
anyone. I think that they were just shooting into a home and
somebody just happened to die. [¶] The law says, even that is
sufficient for you to convict of murder. Why is that? There’s
something called natural and probable consequences.” The
prosecutor continued: “Let me ask you this. I give you an AK-47
with 20 some odd rounds in it knowing that you are going to
shoot up a house. An occupied house. You shoot up that house.
Do I know that it’s a natural and probable consequence that
someone is going to die? Yeah. Unless I have an I.Q. of two, I
know lighting up a house with an assault rifle, somebody is going
to die. Cerda certainly knew that. And as such, he is guilty. He
is guilty of the crime of murder. [¶] So would a reasonable
person know? Yes. He knew that having Kyle Johnson shoot up
that house, that somebody was going to die.”
21
(2016) 246 Cal.App.4th 350, 360–361; In re Loza (2018) 27
Cal.App.5th 797, 806; In re Johnson (2016) 246 Cal.App.4th 1396,
1408.) Although the evidence was sufficient to support a finding
of premeditation, there is simply no way to tell from the verdict
whether the jury relied on the invalid natural and probable
consequences theory or viewed Cerda as a direct aider and
abettor of premeditated murder.
Based on the harmless beyond a reasonable doubt
standard, we must reverse, even if it is highly unlikely the jury
convicted Cerda based on the natural and probable consequences
doctrine. (In re Loza, supra, 27 Cal.App.5th at p. 806.) We will
vacate Cerda’s first degree murder conviction and remand his
case to the trial court for further proceedings.14 According to
Chiu, upon remand, the district attorney may accept a reduction
of the conviction to second degree murder or retry the greater
offense.15 (Chiu, supra, 59 Cal.4th at p. 168.)]]
14
Because we reverse Cerda’s first degree murder conviction,
we need not address his argument from the original appeal
regarding the insufficiency of evidence to support premeditated
murder.
15
We reject Cerda’s argument that the only proper remedy is
to reduce his conviction to second degree murder. He reasons
that because Johnson was convicted of second degree murder,
allowing a retrial would encourage a jury to reach an inconsistent
verdict. But our Supreme Court has sanctioned inconsistent
premeditation findings. (See People v. Palmer (2001) 24 Cal.4th
856, 866–867.)
22
II. Sufficient evidence to instruct on the kill zone theory
Attempted murder requires “the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003) 31
Cal.4th 613, 623.) When a defendant attempts to kill two or more
persons by a single act, the element of intent to kill must be
examined independently as to each alleged victim. (People v.
Bland (2002) 28 Cal.4th 313, 327–328 (Bland).) Intent to kill
cannot transfer from one attempted murder victim to another.
(Id. at pp. 328–329.)
Although intent to kill cannot transfer among victims, the
Supreme Court in Bland provided for concurrent intent to kill to
establish attempted murder against each person a defendant
tries to kill by his or her single act. (Bland, supra, 28 Cal.4th at
p. 329.) Concurrent intent would be established when the
defendant, while targeting a specific person, tried to kill everyone
in the area in which that person was located to ensure his or her
death. In doing so, the defendant would specifically intend to kill
everyone in that area. (Ibid.) The Court labeled this area around
the primary target victim the “kill zone.”16 (Bland, supra, 28
Cal.4th at p. 330.) This kill zone theory allows for a conviction of
attempted murder against any victim who was in the specified
area but was not the defendant’s primary target. (Id. at pp. 329–
330; People v. Smith (2005) 37 Cal.4th 733, 745–746.)
People v. Canizales, supra, 7 Cal.5th at page 607, limited
the application of the kill zone theory. Under Canizales, the kill
16
The Supreme Court adopted the term “kill zone” from the
Maryland case of Ford v. State (Md.Ct.App. 1993) 625 A.2d 984,
1000–1001. (Bland, supra, 28 Cal.4th at p. 329.)
23
zone theory may only be applied when: “(1) the circumstances of
the defendant’s attack on a primary target, including the type
and extent of the force [he or she] used, are such that the only
reasonable inference is that [he or she] intended to create a zone
of fatal harm … around the primary target; and (2) the alleged
attempted murder victim who was not the primary target was
located within that zone of [fatal] harm.” (Ibid.)
Canizales further elaborated that in determining the intent
to create a kill zone and the scope of the kill zone, the
circumstances of the attack include “the type of weapon used, the
number of shots fired (where a firearm is used), the distance
between the defendant and the alleged victims, and the proximity
of the alleged victims to the primary target.” (Canizales, supra, 7
Cal.5th at p. 607.)
For a jury to be instructed that it may draw an inference,
as the instruction on the kill zone theory does, the record must
contain evidence that would support the suggested inference, if
believed by the jurors. (Canizales, supra, 7 Cal.5th at p. 609.) As
we will discuss, substantial evidence supported Cerda’s and
Johnson’s intent to kill everyone within the respective kill zones
at the Katrina Place and Morning Circle shootings.
A. Intent to create a kill zone
We begin by assessing the circumstances of each attack.
For both the Katrina Place and Morning Circle incidents, the
shooters used an AK-47 assault rifle. Criminalist Keil explained
that the high caliber ammunition from such an assault rifle
travels at up to four times the velocity of handgun ammunition.
The AK-47 rounds have the potential for penetrating substantial
barriers.
24
The sixteen shots fired from the assault rifle decimated the
house on Katrina Place.17 All sixteen shots penetrated the
exterior walls. Many also penetrated internal walls and fixtures.
This was not an indiscriminate shooting. The shots grouped
around the locations where the victims were congregating. They
focused on the garage and the dining room on the first floor, and
the bedrooms on the second floor. The shots killed one person,
and debris from the damage also injured two others. The location
of the casings in the street indicated that the truck stopped in
front of the house, allowing the shooter to fire from a close range.
The two groups of casings further suggested to Keil that the
shooter fired eleven shots from a stationary position, then turned
or moved to another location and fired the remaining five shots.
This deliberate positioning of the shooter and placement of shots
further support his targeting specific locations of the house where
the victims were present.
Only thirty minutes later, Cerda shot at the Morning Circle
house with the same intent to create a kill zone. The group
employed the same tactics as those at the Katrina Place house.
17
We reject Cerda’s contention that the use of an AK-47
assault rifle would only signify an intent to kill if the shooter had
prior knowledge of the gun’s capabilities and use in a manner to
strike targets. As we discuss, the rifle was used to strike targets
inside the house. But neither Canizales nor its precursors ever
required knowledge of the utilized weapon’s capabilities. On the
contrary, Canizales suggested considering, among other factors,
only the type of weapon used. (Canizales, supra, 7 Cal.5th at
p. 607.) Moreover, both Cerda and Johnson would have
witnessed multiple shots fired from the AK-47. After one shot
was fired, both could sufficiently appreciate the assault rifle’s
capabilities.
25
The truck pulled up in front of the house. Cerda fired shots from
a stationary position in the bed of the truck, while Johnson and
the others remained in the passenger compartment. Cerda fired
close to the front of the house, as the location of the four spent
casings and four live rounds indicated.
Most significantly, Cerda fired the same high-velocity
ammunition from the same military-style assault rifle, which had
been fired only thirty minutes before. Multiple shots again
penetrated the exterior. One entered the master bedroom where
Vicente V. and his wife were sleeping. Another struck a staircase
leading to another bedroom. Other bullets were embedded in the
exterior walls. The six damaged areas of the house suggested
Cerda fired at least six shots, although only four spent casings
were discovered. Notably, there were nine victims in the
Morning Circle Place house, five fewer than in the Katrina Place
house. If one 7.62 by 30-millimeter round could penetrate
multiple barriers, it certainly could have penetrated multiple
human beings.
Although Cerda fired fewer shots and did not injure
anyone, a determination of the intent to create a kill zone “does
not turn on the effectiveness or ineffectiveness of [his] chosen
method of attack.” (Canizales, supra, 7 Cal.5th at p. 611.)
Moreover, Canizales explained that the number of shots is
relevant to the determination of intent to create a kill zone, but it
is not dispositive. (Ibid.)
The facts of both shootings stand in stark contrast to those
in Canizales. The shooter in Canizales fired shots at his primary
target from 100 to 160 feet away. The shooting occurred at a
block party on a wide city street, open and unconfined by any
structure. (Canizales, supra, 7 Cal.5th at p. 610.) Bullets were
26
described as “going everywhere,” rather than targeting specific
victims. (Ibid.) Moreover, the shooter fired lower-powered nine-
millimeter rounds from a handgun.
Cerda and Johnson assert that an intent to intimidate, as
an alternative to an intent to kill, could reasonably be inferred
from the circumstances of the attacks.18 They highlight
testimony by Detective Gillis which recognized that a gang
member could commit a shooting with the intent to intimidate
without also intending to kill.
However, Gillis commented on a hypothetical situation
where a gang member fired shots into an unoccupied car, rather
than an occupied house. Gillis qualified, “In gang life, it can’t be
painted so broad. Each case is different.” In the situation of an
unoccupied car, the shooter could have no intent to kill because
there would be no victim to kill. Gillis’s testimony does not
suggest that alternative reasonable inferences, including an
intent to intimidate, could be drawn from circumstances of the
attacks in this case.
Gillis was clear. He testified that the sole purpose for
using an AK-47 was to kill. Especially for the Katrina Place
incident, the shooting was more than mere retaliation. It was
committed “with an exclamation point.” The intent to kill was
18
Cerda also contends that the prosecutor “conceded the
existence of multiple inferences.” But the prosecutor did no such
thing. Moreover, the prosecutor’s argument is not the evidence
we evaluate to determine whether the instruction on the kill zone
theory was proper. Canizales evaluated the prosecutor’s closing
argument only to determine whether the error in instructing on
the kill zone was prejudicial. (Canizales, supra, 7 Cal.5th at
pp. 613–614.) There was no error here, as we discuss.
27
supported by Cerda’s and Johnson’s statements, as recounted by
Pedro A. Cerda stated, “We’re going to get them fools, you know.
A gun and some other foolio.” Johnson demanded, “[T]onight.
Fuck that.” This exchange represents Cerda’s proposal of killing
the 18th Street gang members who beat up Johnson. It also
shows Johnson’s intention to retaliate immediately. The only
reasonable inference to be drawn from the use of the assault rifle
at the Katrina Place incident was the intent to kill everyone
occupying the house. We draw the same inference from the
Morning Circle shooting, which occurred soon after the Katrina
Place shooting.
Both Cerda and Johnson further argue that no primary
target existed in each shooting, rendering the kill zone theory
inapplicable. We disagree.
Canizales required a primary target for the application of
the kill zone theory. (Canizales, supra, 7 Cal.5th at p. 608.) The
kill zone theory addresses whether a defendant who murders or
attempts to murder an intended target can be convicted of
attempted murder of nontargeted persons. (Ibid; People v. Stone
(2009) 46 Cal.4th 131, 138.) When the defendant has the intent
to kill a particular target, for attempted murder liability under
the kill zone theory, the jurors must infer his or her concurrent
intent to kill the nontargeted persons. (Ibid.) Intent to kill the
others could not be concurrent to an intent to kill a primary
target if there was no primary target.
Vicente V. was the primary target at the Morning Circle
house. According to Deputy Gillis, Vicente V. was a founding
member of the Val Verde Park gang. His family had been
associated with the gang for two generations. Vicente V., as well
as Gillis, identified his son, Vince, Jr., as a Val Verde Park gang
28
member. Vince, Jr., was also present at the house at the time of
the shooting. Cerda and Johnson were affiliated with LMS,
which was the rival gang of Val Verde Park.
At the Katrina Place house, the primary targets were the
18th Street gang members who beat up Johnson earlier at the
party. Although these 18th Street gang members were never
identified, neither Canizales, nor any other case, required that
the primary target be identified by name. Nor is it required that
the defendant know the primary target was present at the time of
the attack. An intended target is all that is required. Cerda and
Johnson sought to retaliate against the 18th Street gang
members. According to Detective Gillis, a gang member must
retaliate with equal or greater force to protect the dignity of his
or her gang. A mistaken belief that the primary targets were
present would not make Cerda or Johnson less culpable.
Upon considering the circumstances of the attack,
including the power of the assault rifle used, the number and
placement of shots, and the position and close range from which
the shootings occurred, we conclude the evidence supported
Johnson’s and Cerda’s respective intent to create a kill zone in
the Katrina Place house and in the Morning Circle house.
B. Scope of the zone
The second prong of the test formulated by Canizales
evaluates the scope of the kill zone. Specifically, we must
determine whether the non-primary target victims were located
within the kill zone for each shooting. (Canizales, supra, 7
Cal.5th at p. 607.) An area where the victims were subjected to
mere risk of lethal harm is insufficient. It must be an area in
which the shooter intended to kill everyone. (Ibid.)
29
Again, the circumstances of the attack inform our
determination.19 The scope of each kill zone encompassed the
entire house in each shooting. We base this conclusion on the use
of the high-powered assault rifle, the damage to the interiors of
the houses by the penetration of bullets through the exterior
walls, the close range from which the shooter fired, and the
number and placement of shots. During the brief time of each
shooting, the named victims in counts 1 through 14 and 15
through 24 were confined to the Katrina Place house and
Morning Circle house, respectively. Accordingly, each victim was
located within the respective kill zone for each shooting.
Cerda and Johnson argue that the kill zone theory could
not properly apply because the evidence did not reveal whether
they knew where each victim was located within each house.
Cerda further contends that People v. Adams (2008) 169
Cal.App.4th 1009, and People v. Vang (2001) 87 Cal.App.4th 554(Vang), should not be cited for the proposition that a shooter may
attempt to kill persons even though he or she is unaware of their
presence.
We disagree. Vang was cited with approval in Bland,
supra, 28 Cal.4th at page 330, Stone, supra, 46 Cal.4th at page
140, and Canizales, supra, 7 Cal.5th at page 610. Vang
concluded that despite each shooter’s inability to see all victims
in the two targeted houses, the jury could reasonably infer the
intent to kill every person in each house, based on the placement
19
Because the Supreme Court concluded that the evidence
was insufficient to support a finding that the defendants
intended to create a kill zone, it did not determine the scope of
the zone. (Canizales, supra, 7 Cal.5th at p. 611.)
30
of shots, the number of shots, and the use of high-powered, wall-
piercing firearms.20 (Vang, supra, 87 Cal.App.4th at p. 564.)
In Adams, the reviewing court held, “Whether or not the
defendant is aware that the attempted murder victims were
within the zone of harm is not a defense, as long as the victims
were actually within the zone of harm.” (People v. Adams, supra,
169 Cal.App.4th at p. 1023.) This holding, along with the holding
in Vang, is consistent with Canizales. The second prong of
Canizales specifically requires the non-primary target to be
located within the kill zone. (Canizales, supra, at p. 607.)
The visibility of the victims and the shooter’s awareness of
their locations are relevant but not dispositive, as they might be
in cases where the shooter fires a single shot from a handgun.
(See People v. Smith, supra, 37 Cal.4th at p. 748.) The attacks
here were of such a magnitude that knowledge of the victims’
specific locations was not necessary. The intent was to kill
everyone in each house. Because each attempted murder victim
was located inside either the Katrina Place house or the Morning
Circle house at the times of the respective shootings, he or she
was within a kill zone created by Cerda and Johnson. Thus,
substantial evidence supported the second prong, as well as the
20
Cerda and Johnson try to distinguish Vang. They argue
that the primary targets were not visible to the shooters here, as
they were in Vang. This distinction is of little consequence. As
we have discussed, the physical presence of a primary target is
not essential. All that is required is that the shooters intended
kill someone. Moreover, at issue in Vang was the sufficiency of
evidence to support the attempted murders of the nine non-
visible victims.
31
first prong, of the Canizales test. Accordingly, we conclude the
kill zone theory was properly applied.21
[[III. Senate Bill No. 1437
Effective January 1, 2019, SB 1437 modified the law
relating to accomplice liability for murder by amending sections
188 and 189. (Stats. 2018, ch. 1015, § 2–3.) SB 1437 redefined
malice in section 188, prohibiting its imputation to a person
based solely on his or her participation in a crime. (§ 188, subd.
(a)(3).) Subdivision (e) of section 189 now requires liability under
the felony murder rule to be limited to three scenarios: (1) the
person was the actual killer; (2) with intent to kill, the person
aided and abetted the actual killer in the commission of first
degree murder; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life.
SB 1437 also eliminated liability for murder under the
natural and probable consequences doctrine. As discussed
earlier, liability under the natural and probable consequences
doctrine was not premised on the intention of the aider and
abettor of the target crime to commit the nontarget crime because
it was never intended. (Chiu, supra, 59 Cal.4th at p. 164.)
Liability depended only on the foreseeability of the nontarget
crime. Accordingly, because SB 1437 requires murder liability to
be based on a person’s mental state and prohibits the imputation
of malice to a person based solely on his or her participation in a
21
Because we conclude substantial evidence supported the
kill zone theory instruction, we need not reach Cerda’s and
Johnson’s argument that instructing on the kill zone theory was
prejudicial.
32
crime, the natural and probable consequences doctrine can no
longer serve as a theory of liability for murder.
SB 1437 added section 1170.95, which provides for persons
to petition to vacate their convictions and be resentenced, if they
could not have been convicted of first or second degree murder as
a result of the changes to sections 188 and 189. (§ 1170.95,
subd. (a).) Specifically, eligible petitioners would include persons
convicted of murder under the natural and probable
consequences doctrine or felony murder, except as stated in
section 189, subdivision (e). If the petitioner makes a prima facie
showing that he or she falls within the provisions of section
1170.95, the trial court must issue an order to show cause on the
prosecuting agency. (§ 1170.95, subd. (c).) The trial court must
hold a hearing to determine whether to vacate the conviction for
murder and to recall the sentence. (§ 1170.95, subd. (d)(1).) The
trial court must vacate the conviction and resentence the
petitioner, if the prosecutor fails to prove beyond a reasonable
doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).)
A. Retroactive application of SB 1437
Johnson argues that SB 1437 applies retroactively to him,
allowing him to seek relief for his murder conviction without
complying with the petition procedure under section 1170.95.22
22
Cerda did not raise this issue. However, Cerda and
Johnson attempt to join one another’s claims, including those for
which they failed to provide any argument. The Supreme Court
disapproves of this improper tactic. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 364 (Bryant).) “Purporting to join
in a claim when no colorable argument can be made that the
claim is applicable and preserved is akin to raising a frivolous
claim in the first instance.” (Ibid.) If an appellant’s brief does
33
Cases have rejected arguments like Johnson’s.23 (People v.
Martinez (2019) 31 Cal.App.5th 719, 727 (Martinez); People v.
Anthony (2019) 32 Cal.App.5th 1102, 1152 (Anthony); People v.
Munoz (2019) 39 Cal.App.5th 738, 752; People v. Lopez (2019) 38
Cal.App.5th 1087, 1113. 24) We agree with these cases and reject
Johnson’s arguments.
Generally, a new law that reduces the punishment for a
crime is presumed to apply to defendants whose judgments are
not yet final as of the law’s effective date. (In re Estrada (1965)
63 Cal.2d 740, 745 (Estrada).) This rule reflects the legislature’s
general intent “for ameliorative changes to the criminal law to
extend as broadly as possible, distinguishing only as necessary
between sentences that are final and sentences that are not.”
(People v. Conley (2016) 63 Cal.4th 646, 657 (Conley).) But the
Legislature or electorate may opt to modify, limit, or prohibit the
retroactive application of such ameliorative amendments. (Id. at
p. 656.) If the Legislature indicates its intent to make the law
prospective only, by an express savings clause or its equivalent,
not provide legal argument and citation to authority on each
point raised, the court may treat it as waived. (Ibid.) We would
reject any claim on this issue, even if Cerda had raised it.
23
To address whether SB 1437 applies retroactively to cases
not yet final on appeal, among other questions, the Supreme
Court has granted review in People v. Gentile (review granted
and opinion E069088 deleted upon direction of Supreme Court by
order dated September 11, 2019, S256698).
24
As we discuss below, the Supreme Court has granted
review on other issues in People v. Munoz (review granted
Nov. 26, 2019, S258234) and People v. Lopez (review granted
Nov. 13, 2019, S258175).
34
the Estrada presumption is rebutted. (Martinez, supra, 31
Cal.App.5th at pp. 724–725; Estrada, at p. 747.)
SB 1437 is not silent on the question of retroactivity.
Section 1170.95 does apply retroactively, but provides specific
retroactivity rules which permit a petitioning process to seek the
vacating of convictions and recall of sentences for eligible persons
convicted of murder under the natural and probable
consequences doctrine or certain theories of felony murder.25 The
petition must be filed in the sentencing court with a declaration
by the defendant stating he or she is eligible for relief based on
criteria in section 1170.95, subdivision (a). (§ 1170.95,
subd. (b)(1)(A).) This petition procedure does not distinguish
between persons whose sentences are final and those whose
sentences are not. Because the Legislature created this
procedure in section 1170.95 by which defendants may avail
themselves of the change in the murder law, SB 1437 should not
be applied retroactively to nonfinal convictions on direct appeal.
(Martinez, supra, 31 Cal.App.5th at p. 727; Anthony, supra, 32
Cal.App.5th at p. 1152.)
25
As part of the petitioning procedure, section 1170.95
permits parties to submit additional evidence, as well as rely on
the record of conviction, at the hearing to determine whether to
vacate the conviction and recall the sentence. (§ 1170.95,
subd. (d)(3).) Martinez noted that this feature demonstrates that
SB 1437 does not categorically provide a lesser punishment or
automatically entitle petitioners to new trials. (Martinez, supra,
31 Cal.App.5th at pp. 727–728.) It provides an opportunity to go
beyond the original record, which is impermissible on direct
appeal. Accordingly, this feature supports the legislative intent
to require defendants to use the petition process in section
1170.95, rather than attempt to proceed via direct appeal. (Ibid.)
35
Our view of SB 1437 is supported by the Supreme Court’s
conclusions about Proposition 3626 (§ 1170.126) and Proposition
4727 (§ 1170.18). (Conley, supra, 63 Cal.4th at pp. 661–662;
People v. DeHoyos (2018) 4 Cal.5th 594, 597 (DeHoyos).) Both are
ameliorative statutes which provide for the recall of sentences.
Both created postconviction procedures for resentencing that do
not distinguish between persons serving final and nonfinal
sentences. Additionally, relief depends on the trial court’s
evaluation of the petitioner’s risk to public safety if released.
(Conley, at p. 657; DeHoyos, at p. 603.) An automatic entitlement
to relief for defendants whose cases were still pending on direct
appeal would bypass this inquiry. Because both Propositions 36
and 47 were not silent on retroactivity, the Supreme Court
concluded the petitioning procedure in each was intended to be
the exclusive avenue for retroactive relief, regardless of whether
26
Proposition 36, the Three Strikes Reform Act of 2012,
amended the Three Strikes law to reduce punishment prescribed
for offenders with two or more prior convictions for serious or
violent felonies. (Prop. 36, as approved by voters, Gen. Elec.
(Nov. 6, 2012).) Proposition 36 also authorized persons presently
serving indeterminate terms pursuant to sentencing under the
Three Strikes law to seek resentencing. (§ 1170.126, subd. (a).)
27
Passed in 2014, Proposition 47, the Safe Neighborhoods
and Schools Act, reduced the punishment for certain theft and
drug related offenses, making them punishable as misdemeanors.
(Prop. 47, as approved by voters, Gen. Elec. (Nov. 4, 2014).)
Proposition 47 also permitted persons serving felony sentences to
seek a reduction in their convictions from felony to misdemeanor
status. (§ 1170.18, subd. (a).)
36
the sentence was final. (Conley, at pp. 661–662; DeHoyos, at
p. 603.)
Johnson tries to distinguish section 1170.95 from
Propositions 36 and 47, which mandate a separate inquiry into a
defendant’s risk to public safety if released. He argues that this
dangerousness inquiry limits relief, unlike section 1170.95 which
provides relief based only on whether a defendant could be
properly convicted of murder under the revised statutes.
This distinction is of little consequence. The determination
of the legislative intent to limit retroactive application of
Propositions 36 and 47 did not depend on the dangerousness
inquiry. (Conley, supra, 63 Cal.4th at pp. 656–657; DeHoyos,
supra, 4 Cal.5th at p. 605.)
Moreover, Johnson minimizes the substantive requirement
for relief imposed by section 1170.95. A trial court must
determine whether a defendant could not have been convicted of
murder under the amended sections 188 and 189. (§ 1170.95,
subd. (a)(3).) This procedure requires factual findings on the
defendant’s participation in the crime. This process reflects the
Legislature’s intent to restrict defendants to the petition
procedure in section 1170.95, rather than allow relief on direct
appeal.
To further support his position that the petition procedure
was not meant to exclude the right to raise a claim on direct
appeal, Johnson cites section 1170.95, subdivision (f), which
states, “This section does not diminish or abrogate any rights or
remedies otherwise available to the petitioner.” But this
provision contains no indication that the rights to be preserved
include automatic relief on direct appeal without compliance with
37
the petition procedure. (Martinez, supra, 31 Cal.App.5th at
p. 729; Anthony, supra, 32 Cal.App.5th at p. 1157.)
Finally, Johnson asserts that if the petition procedure is his
exclusive remedy, the right to new factual determinations about
his murder liability would be made by a court rather than by a
jury. He argues that such a conclusion would violate his
constitutional right to a jury trial.
Anthony rejected a similar argument. The retroactive relief
provided by SB 1437 constitutes a legislative act of lenity that
does not implicate the right to a jury trial under the Sixth
Amendment. (Anthony, supra, 32 Cal.App.5th at pp. 1156–1157:
People v. Perez (2018) 4 Cal.5th 1055, 1063–1064.)
We conclude neither Johnson nor Cerda may obtain relief
under SB 1437 by direct appeal. Any claim for retroactive relief
must be raised by petition before the sentencing court in the first
instance, as provided in section 1170.95.28 Nothing in our
discussion is intended to suggest any opinion on the merits of
such a petition.
28
Johnson also argues the trial court incorrectly instructed
on aiding and abetting and the natural and probable
consequences doctrine, based on the amendments to the murder
law by SB 1437. He contends reversal is required because it
cannot be determined whether the jury based its guilty verdict
for the murder conviction on express or implied malice, or on the
natural and probable consequences doctrine. Johnson must
present this argument in a petition under section 1170.95. It
expressly requires a determination of whether he could be
convicted of murder because of the changes to the murder law by
SB 1437. (§ 1170.95, subd. (a)(3).)
38
B. SB 1437 does not apply to attempted murder
Cerda and Johnson urge us to extend to attempted murder
the prohibition of murder liability under the natural and
probable consequences doctrine, as established by SB 1437.29 We
decline.30
1. Plain language
The words of the statute provide the starting point for
statutory interpretation. (People v. Colbert (2019) 6 Cal.5th 596,
603.) We afford the words their ordinary meaning and view them
in the context of the statute. If the words are not ambiguous, the
plain meaning governs. (Ibid.)
SB 1437 is not ambiguous. Attempted murder is not
included in sections 188, 189, or 1170.95.31 Each section contains
29
The Supreme Court has granted review on this issue in
People v. Lopez (S258175, review granted Nov. 13, 2019) and
People v. Munoz (S258234, review granted Nov. 26, 2019).
30
Because we conclude that SB 1437 does not apply to
attempted murder, we need not reach Johnson’s claims of
instructional error related to the natural and probable
consequences doctrine as applied to attempted murder.
31
The uncodified statement of legislative findings and
declarations provides, “It is necessary to amend the felony
murder rule and the natural and probable consequences doctrine,
as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, §1, subd. (f).) The reference to the
natural and probable consequences doctrine includes only its
39
only references to the terms murder or killer. Additionally,
section 189, subdivision (e) uses the term “attempted” in
permitting completed and attempted felonies for the underlying
felony of felony murder. However, “attempted” is omitted from
the same sentence when addressing the participant’s liability for
murder. (§ 189, subd. (e).) A term should not be implied where it
was excluded when it was employed in one place and excluded in
another. (People v. Buycks (2018) 5 Cal.5th 857, 880; Bland,
supra, 28 Cal.4th at p. 337.) The Legislature knows how to
create a statute which would encompass both a completed crime
and an attempt. (People v. Jillie (1992) 8 Cal.App.4th 960, 963.)
The plain language of each section compels the conclusion that
SB 1437 applies only to murder and does not extend to attempted
murder.
2. No absurd consequences
Cerda and Johnson contend that construing SB 1437 to
apply to murder, but not attempted murder, would result in more
severe punishment for attempted murder. They assert that other
remedial legislation includes application to lesser offenses.32
application to murder. Other portions also reference only
“murder” in the context of the malice requirement. (Ibid.)
32
Johnson argues that attempted murder is a lesser included
offense of murder. However, an attempted offense is not
necessarily a lesser included offense of a completed offense. For
example, attempted murder includes a “particularized intent that
goes beyond what is required by the completed offense.” (People
v. Bailey (2012) 54 Cal.4th 740, 752–753.) Attempted murder
requires intent to kill. As an alternative to intent to kill, murder
may be committed with implied malice. (§ 188.)
40
They cite two cases which discussed the absurd results of a
statute’s failure to include attempted crimes.
The first case cited by Cerda and Johnson is People v. King
(1995) 5 Cal.4th 59. King considered the confusion created by the
interplay of multiple statutes used to determine the eligibility of
juveniles for commitment to the former California Youth
Authority, rather than state prison. The specific juveniles under
consideration were convicted of first degree murder and
attempted premeditated murder in adult court. A literal
interpretation of the statutes would have resulted in ineligibility
of juveniles who were convicted of attempted premeditated
murder, but not first degree murder. However, the legislative
history indicated an intent for the eligibility of juveniles
convicted of either first degree murder or attempted
premeditated murder. The Court reasoned this intent should
prevail over any irrational result caused by three interrelated
statutes.33 (People v. King, supra, at pp. 69–70.)
The second case cited by Cerda and Johnson is People v.
Barrajas (1998) 62 Cal.App.4th 926, which permitted a drug
diversion law to apply to the attempted possession of a controlled
substance, despite its plain language including only completed
possession. The reviewing court concluded that it would make
little sense if the Legislature intended to include persons who
acquired drugs but exclude persons who wanted to acquire drugs
but were unable to do so. (Id. at p. 930.)
In contrast to the situations presented by King and
Barrajas, SB 1437 does not call for the application of the so-called
33
The Court interpreted sections 190, subdivision (a), and
664, and Welfare & Institutions Code section 1731.5.
41
absurd consequences doctrine. Generally, this doctrine directs
reviewing courts to not give the language of a statute its literal
meaning if doing so would result in absurd consequences which
the Legislature or the electorate did not intend. (Bruce v.
Gregory (1967) 65 Cal.2d 666, 674; People v. Cook (2015) 60
Cal.4th 922, 927; People v. Hagedorn (2005) 127 Cal.App.4th 734,
743.) “To this extent, therefore, intent prevails over the letter of
the law and the letter will be read in accordance with the spirit of
the enactment.” (In re Michele D. (2002) 29 Cal.4th 600, 606.)
Unlike the statutes in King and Barrajas, the literal
meaning of SB 1437 does not result in absurd consequences. It
does not mandate a harsher punishment or prohibit a more
lenient sentence for attempted murder. It does not even
prescribe punishment for either murder or attempted murder.
After the enactment of SB 1437, the punishment for attempted
murder remains the same. In its determinate or indeterminate
form, the punishment remains less than the punishment for
murder. (Chiu, supra, 59 Cal.4th at p. 163.)
3. No equal protection violation
Cerda and Johnson argue that if SB 1437 does not include
persons convicted of attempted murder under the natural and
probable consequences doctrine, it violates equal protection.
a. Not similarly situated to persons convicted
of murder
Equal protection of the laws requires equal treatment of
similarly situated persons, unless a sufficient reason exists to
treat them differently.34 (People v. Morales (2016) 63 Cal.4th 399,
34
Both the state and federal constitutions provide for equal
protection. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a).) The California Supreme Court has noted that it has
42
408; Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) We
must first determine whether there are two groups of persons
who are similarly situated but are being treated differently under
the law at issue. (Cooley, at p. 253; People v. Barrett (2012) 54
Cal.4th 1081, 1107.) The law does not violate equal protection if
the two groups are not similarly situated or the law does not
treat them differently.
Persons charged with, or convicted of, attempted murder
are not similarly situated with persons charged with, or convicted
of, murder. Murder is a distinct offense from attempted murder.
It is punished more harshly than attempted murder. (§§ 190,
664, subd. (a).) It also requires proof of different elements.
(§§ 187, 188, 664.)
SB 1437 was enacted to “more equitably sentence offenders
in accordance with their involvement in homicides.” (Stats. 2018,
ch. 1015, § 1, subd. (b).) The Legislature was permitted to treat
these properly distinguishable groups of offenders differently. It
is irrelevant if they are otherwise indistinguishable. (Barrett,
supra, 54 Cal.4th at p. 1107.) Cerda and Johnson offer no
persuasive reason to view the two groups as similarly situated.
Accordingly, their equal protection claim fails.
“not distinguished the state and federal guarantees of equal
protection for claims arising from allegedly unequal consequences
associated with different types of criminal offenses.” (People v.
Chatman (2015) 4 Cal.5th 277, 287.)
43
b. Rational basis review
Even assuming the two groups consist of similarly situated
persons, sufficient reasons exist to treat them differently.
(Chatman, supra, 4 Cal.5th at p. 288.) The extent of justification
depends on the nature of the classification. (Ibid.) The highest
level of scrutiny is required only if the unequal treatment is
based on a suspect classification, such as race, or if it affects a
fundamental right. (People v. Wilkinson (2004) 33 Cal.4th 821,
836 (Wilkinson); Chatman, at p. 288.) The state would have the
burden of establishing a compelling interest which justifies the
law and the distinctions created by the law are necessary to
further its purpose. (Chatman, at p. 288.) Where the law does
not draw a suspect classification nor burden fundamental rights,
it must be “rationally related to a legitimate governmental
purpose.” (Wilkinson, at p. 836.) In such cases, the classification
is presumed rational unless no reasonably conceivable rational
basis exists for the unequal treatment. (Chatman, at p. 289.)
Preliminarily, we reject Cerda’s and Johnson’s arguments
that the strict scrutiny standard applies for their equal protection
claim. Specifically, they contend that the punishment for the
crimes affects a criminal defendant’s fundamental right of
liberty. However, “where the issue is not whether a deprivation
of an individual’s liberty will occur, but rather the duration of
that deprivation, rational basis review is appropriate.” (People v.
K.P. (2018) 30 Cal.App.5th 331, 343.) The legislative branch has
the exclusive power to define crimes and fix penalties. (People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, 516.) A
defendant “does not have a fundamental interest in a specific
term of imprisonment or in the designation a particular crime
receives.” (Wilkinson, supra, 33 Cal.4th at p. 838; People v.
44
Martinez (2016) 5 Cal.App.5th 234, 243.) Thus, rational basis
review is appropriate for an equal protection challenge to the
limitation of the ameliorative provisions of SB 1437 to murder.
Under the rational basis test, “equal protection of the law is
denied only where there is no rational relationship between the
disparity of treatment and some legitimate governmental
purpose. [Citations.]” (People v. Martinez, supra, 5 Cal.App.5th
at p. 244; Johnson v. Department of Justice (2015) 60 Cal.4th 871,
881 (Johnson).) The underlying rationale need not be
“empirically substantiated.” (Johnson, at p. 881.) Nor must the
Legislature ever actually have articulated the purpose to be
achieved. (Ibid.) To mount a successful rational basis challenge,
a party must negate every basis “that might support the disputed
statutory disparity.” (Ibid.)
The Legislature’s decision to limit sentencing reform to
murder was rational. First, the Legislature wanted punishment
for murder commensurate with a person’s individual culpability.
(Stats. 2018, ch. 1015, § 1, subds. (b), (d); Munoz, supra, 39
Cal.App.5th at p. 763.) In cases applying the natural and
probable consequences doctrine, the gap is greater between the
culpability for aiding and abetting the less serious target offense
and the nontarget offense of murder than it is for a nontarget
offense of attempted murder. The Legislature has the
prerogative to first address a problem which it deems most
pressing, leaving other related problems for another day. (Kasler
v. Lockyer (2000) 23 Cal.4th 472, 488.)
Second, a financial savings would result from limiting the
scope of the petitions under section 1170.95 to murder
45
convictions.35 (Munoz, supra, 39 Cal.App.5th at pp. 763–764.)
Such a savings would justify treating persons with murder
convictions differently from persons with attempted murder
convictions. “Preserving the government’s financial integrity and
resources is a legitimate state interest.” (Chatman, supra, 4
Cal.5th at p. 290.)
We conclude that plausible reasons existed for the
Legislature to not extend its ameliorative provisions to attempted
murder. Accordingly, we reject Cerda’s and Johnson’s equal
protection claim against the Legislature’s decision to limit reform
of murder liability under the natural and probable consequences
doctrine.
IV. Liability for attempted premeditated murder under the
natural and probable consequences doctrine
Cerda and Johnson argue that the premeditation findings
as to each count of attempted murder should be reversed. They
assert that the jurors were improperly instructed they could find
premeditation for each attempted murder under the natural and
probable consequences doctrine without a determination that
35
The Senate and Assembly Appropriations Committees
examined the potential financial impact of the resentencing
provision in section 1170.95, which included processing the
petitions and transporting inmates to hearings. (Sen. Com. on
Appropriations, Analysis of Sen. Bill No. 1437 (2017–2018 reg.
Sess.) May 14, 2018, p. 1; Assem. Com. on Appropriations,
Analysis of Sen. Bill 1437 (2017–2018 Reg. Sess.) Aug. 8, 2018,
p. 1.) The estimated additional court workload cost was $7.6
million, if ten percent of the inmates eligible for relief petitioned
the court for recall of sentence and resentencing for their murder
convictions. (Sen. Com. on Appropriations, May 14, 2018, supra,
p. 3.)
46
attempted premeditated murder was a foreseeable consequence
of the target crime.36
The Supreme Court addressed this issue in People v. Favor
(2012) 54 Cal.4th 868, 879–880. The Court held that a trial court
need only instruct the jury to find that attempted murder, not
attempted premeditated murder, was a foreseeable consequence
of the target offense. The jury would separately determine
whether the attempted murder itself was premeditated. (Id. at
p. 880.)
Cerda and Johnson cite People v. Mejia (2019) 40
Cal.App.5th 42, which extended People v. Chiu. As discussed
earlier, in Chiu, the Supreme Court held that a first degree
premeditated murder conviction for an aider and abettor cannot
be based on the natural and probable consequences doctrine.
(Chiu, supra, 59 Cal.4th at p. 166.) Chiu reasoned that the
connection between a murderer’s premeditative state and the
culpability of an aider and abettor of a target crime is too
attenuated to impose first degree murder liability on the aider
and abettor under the natural and probable consequences
doctrine. (Id. at p. 166.) Murder liability under the natural and
probable consequences doctrine was incompatible with a mental
state like premeditation which was “uniquely subjective and
personal.” (Id. at p. 167.)
Mejia similarly concluded that a finding of premeditation
for attempted murder cannot be based on the natural and
probable consequences doctrine. (Mejia, supra, 40 Cal.App.5th at
p. 50.) The court reasoned that premeditation “is no less
36
The Supreme Court has granted review on this issue in
People v. Lopez (S258175, review granted Nov. 13, 2019).
47
subjective and personal in the context of attempted murder than
it is in the context of murder.” (Id. at p. 49.)
Cerda and Johnson urge us to agree with Mejia. However,
Chiu did not overrule Favor. 37 Chiu merely determined that
sufficient distinctions exist between attempted premeditated
murder and premeditated murder to justify a different result
from Favor.38 (Chiu, supra, 59 Cal.4th at p. 162.) Thus, even if
we agree with Mejia that Favor and Chiu are indistinguishable,
we must follow Favor. 39 (Auto Equity Sales, Inc. v. Superior
Court (1962) 57 Cal.2d 450, 455.)
37
The Supreme Court has granted review on this issue in
People v. Lopez (S258175, review granted November 13, 2019.)
The questions before the Supreme Court include whether Favor
should be reconsidered in light of Chiu.
38
Chiu noted that premeditation is an element of first degree
murder, in contrast to a requirement for a penalty provision as it
is with attempted murder. (Chiu, supra, 59 Cal.4th at p. 163.)
Chiu also characterized the consequence of imposing the penalty
provision to attempted murder as less severe than in imposing
first degree murder liability under the natural and probable
consequences doctrine. (Ibid.)
39
Johnson cites cases to argue that the instruction allowed
the jury to impute the perpetrator’s premeditation to him,
obviating the due process requirement that the jury find beyond a
reasonable doubt every fact increasing punishment. (Apprendi v.
New Jersey (2000) 530 U.S. 466, 494, fn. 19; Alleyne v. United
States (2013) 570 U.S. 99, 111–112.) Favor rejected this
argument by characterizing attempted premeditated murder and
attempted unpremeditated murder as the same offense. (Favor,
supra, 54 Cal.4th at p. 876.) The Court reasoned that
premeditation does not create a greater degree of attempted
murder. Instead, it is only a requirement for a penalty provision,
48
V. The “equally guilty” language in CALCRIM No. 400
Cerda and Johnson contend their convictions must be
overturned because the trial court instructed the jury with a
superseded version of CALCRIM No. 400. Their complaint is
with the statement that “[a] person is equally guilty of the crime
whether he committed it personally or aided and abetted the
perpetrator who committed it.”40 (CALCRIM No. 400.) Cerda
and Johnson contend they were prejudiced by the “equally guilty”
formulation in the prior version of CALCRIM No. 400 because it
improperly tethered one’s culpability for attempted premeditated
murder (and premeditated murder for Cerda) to the mental state
of the other.
rather than a substantive offense. (Id. at pp. 876–877.) The
Supreme Court previously granted review in People v. Mateo
(review granted May 11, 2016, S232674) to address whether aider
and abettor liability under the natural and probable
consequences doctrine must require attempted premeditated
murder to be a foreseeable consequence of the target offense. The
Court was to determine whether Favor should be reconsidered in
light of Alleyne. However, it transferred the matter back to the
Court of Appeal without deciding this issue. Mejia also did not
address the impact of Alleyne on Favor. (Mejia, supra, 40
Cal.App.5th at p. 51, fn. 3.) But as noted, the Supreme Court has
granted review on this issue in People v. Lopez (review granted
November 13, 2019, S258175.)
40
In April 2010, the Judicial Council amended CALCRIM
No. 400 to omit the “equally guilty” language. (People v. Johnson
(2016) 62 Cal.4th 600, 640.) The final sentence now reads: “A
person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator.” (CALCRIM
No. 400.)
49
A. CALCRIM No. 400 would not have misled the juries
The “equally guilty” language “generally stated a correct
rule of law.” (Bryant, supra, 60 Cal.4th at p. 433; People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 846 (Daveggio).) A
perpetrator and an aider and abettor are equally guilty in that
they are both criminally liable. (Bryant, at p. 433; Daveggio, at
p. 846.) But the “equally guilty” language could be misleading if
they might be guilty of different crimes and the jurors interpret it
to preclude such a finding. (Bryant, at p. 433; Daveggio, at
p. 846.)
An aider and abettor may be criminally liable for acts not
his or her own. However, the aider and abettor’s guilt may be
“based on a combination of the direct perpetrator’s acts and the
aider and abettor’s own acts and own mental state.” (People v.
McCoy (2001) 25 Cal.4th 1111, 1117.) “‘[O]nce it is proved that
“the principal has caused an actus reus, the liability of each of
the secondary parties should be assessed according to his [or her]
own mens rea.”’ (Id. at p. 1118.) If the aider and abettor’s
mental state is more culpable than the direct perpetrator’s, his or
her guilt may be greater. (Id. at p. 1117.) “[A]n aider and
abettor’s guilt may also be less than the perpetrator’s, if the aider
and abettor has a less culpable mental state.” (People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1164.)
Cerda and Johnson rely on two cases to argue that the
“equally guilty” language in CALCRIM No. 400 lessened the
prosecution’s burden of proof by not requiring that each
defendant’s culpability be determined independently.
First, in People v. Samaniego, the two defendants went to
kill the victims, but no eyewitnesses saw the actual shooting.
(Samaniego, supra, 172 Cal.App.4th at p. 1162.) Thus, no
50
evidence established which defendant was the direct perpetrator.
The reviewing court concluded that the language in CALCRIM
No. 400 was misleading as applied to the unique circumstances
presented by the facts. (Id. at p. 1165.) It noted that the
“equally guilty” language in CALCRIM No. 400 is “generally
correct in all but the most exceptional circumstances.” (Ibid.)
The evidence here did not suggest Cerda and Johnson
might have different states of mind and therefore might be guilty
of different crimes. (People v. Johnson, supra, 62 Cal.4th at
p. 640.) As discussed earlier, the evidence overwhelmingly
showed that both Cerda and Johnson went to each location to
kill. This case joined the group of cases where the “equally
guilty” language would not be incorrect.
Second, in People v. Nero (2010) 181 Cal.App.4th 504(Nero), the theory against the aider and abettor was that she
handed a knife to the defendant, who used it to kill the victim.
The jury expressly asked the trial court if an aider and abettor’s
guilt could be less than the perpetrator’s guilt. The trial court
did not respond in the affirmative, as it should have. Instead, it
simply reread the instruction which included the “equally guilty”
language.41 (Nero, supra, 181 Cal.App.4th at p. 518.) The jurors
confirmed the instruction answered their question. On the next
day, the jury found both defendants guilty of second degree
murder. The reviewing court concluded that the trial court
improperly instructed the jury with the “equally guilty” language.
(Ibid.)
41
The trial court in Nero read CALJIC No. 3.00, which is the
equivalent of CALCRIM No. 400. (Nero, supra, 181 Cal.App.4th
at p. 512.) It also contained the “equally guilty” language.
51
Johnson argues that questions from the jury implied it was
asking whether an aider and abettor could be guilty of a lesser
offense than the perpetrator, as did the jury in Nero. 42 We
disagree. These jury questions did not expressly ask if an aider
and abettor had to be found guilty of the same degree of
attempted murder as the direct perpetrator. Three of the
questions expressly related to the murder charge, on which
Johnson was convicted of the lesser degree. The remaining
question asked if aider and abettor liability was available for
attempted murder. None of these questions asked about the
requisite mental states of the aider and abettor, or whether the
aider and abettor could be more or less culpable than the direct
perpetrator. Nor do they suggest the jury was confused by
“equally guilty” language.
Accordingly, we conclude the trial court did not err by
instructing with the “equally guilty” language in CALCRIM
No. 400.
B. No prejudice
Assuming error, CALCRIM No. 401 resolved any potential
confusion. CALCRIM No. 401 required proof that the aider and
42
The first question asked: “Would it be the same charge,
murder one, if Kyle Johnson shot the gun or did not but was in
the car, because we are confused on the law. First degree or
second.” The second question asked if the jurors could ignore the
fourth element of implied malice, i.e. deliberately acting with
conscious disregard for human life. The third question read: “By
agreeing to an aid or aider [sic] charge which would result in
guilt, would the implied or express malice be considered.” A
fourth note read: “Can we use the aider and abettor theory of
liability to find the defendant guilty of attempted murder?”
52
abettor must (1) know of the perpetrator’s unlawful purpose,
(2) intend to facilitate or assist that unlawful purpose, and (3) act
in some manner that does assist or facilitate the unlawful
purpose. Notwithstanding the “equally guilty” language of
CALCRIM No. 400, this instruction advised that aider and
abettor liability must be predicated on the state of mind of the
aider and abettor, and the extent to which he knew of and
intended to facilitate the purpose contemplated by the
perpetrator. (People v. Mejia (2012) 211 Cal.App.4th 586, 625.)
CALCRIM No. 401 thus clarified that culpability was not based
on the mental state of the direct perpetrator alone. “‘“[T]he
correctness of jury instructions is to be determined from the
entire charge of the court, not from a consideration of parts of an
instruction or from a particular instruction.” [Citations.]’
[Citation.]” (People v. Solomon (2010) 49 Cal.4th 792, 822.)
Accordingly, if the trial court omitted the “equally guilty”
language from CALCRIM No. 400, we are convinced beyond a
reasonable doubt the jury verdicts would have been the same.
(Samaniego, supra, 172, Cal.App.4th at p. 1165; Nero, supra, 181
Cal.App.4th at pp. 518–519; Chapman, supra, 386 U.S. at p. 24.)
VI. Shooting at an occupied house as a lesser offense
The natural and probable consequences theory was based
on the target offense of shooting at an occupied house, in
violation of section 246. Cerda contends all the convictions
predicated on the natural and probable consequences doctrine
must be reversed because the trial court failed to give the jury an
opportunity to convict on shooting at an occupied house as a
lesser included offense.
Shooting at an occupied house is not a necessarily included
offense of murder or attempted murder. At most, it was merely a
53
lesser related offense. Cerda acknowledges that a trial court has
no sua sponte duty to instruct on lesser related offenses. (People
v. Birks (1998) 19 Cal.4th 108, 136.)
However, Cerda invites us to fashion a new rule. He
correctly explains that when the prosecutor specifies a target
crime under the natural and probable consequences theory and
the trial court instructs on its elements, the jury is required to
determine whether it has been committed to reach a conviction
for the nontarget crime. Cerda appears to assert that the target
offense is the “functional equivalent” of an element of the pleaded
crime. He goes one step too far by proposing that as the
functional equivalent of an element of the pleaded crime, the
target crime becomes a lesser included offense of the nontarget
crime. Cerda claims that as a lesser included offense, the jury
should have been permitted to reach a separate verdict on it.
But we decline to create such a new rule.
Even if the trial court had instructed jurors that they could
convict Cerda and Johnson of shooting at an occupied house, as a
lesser offense, it is not reasonably probable they would have
acquitted them of murder and attempted murder. (People v.
Rogers (2006) 39 Cal.4th 826, 867–868; People v. Watson (1956)
46 Cal.2d 818, 836–837.) In their roles as aiders and abettors,
Cerda and Johnson each satisfied the required act, knowledge,
and intent for aiding and abetting murder and attempted
murder.
As discussed earlier, Cerda planned the Katrina Place
shooting to retaliate against the 18th Street gang members who
committed the earlier beating. He encouraged Johnson to join in
the retaliation. Cerda retrieved the AK-47 assault rifle and wall-
piercing ammunition from his home for Johnson to use.
54
As to the Morning Circle shooting, Johnson reversed roles
with Cerda. He handed the AK-47 to Cerda. He relinquished his
shooting position in the truck’s bed to Cerda. Johnson’s intent to
kill was magnified by committing these acts soon after having
committed the murder and attempted murders at the Katrina
Place house with the same AK-47. Moreover, Johnson’s defense
at trial was not that he merely intended to shoot at a building,
but that he was not even present at either shooting that night.
The jury discredited his alibi defense.
Accordingly, we conclude there is no reasonable probability
the juries would have convicted Cerda or Johnson of only
violating the crime of shooting at an occupied house, if given the
opportunity.
VII. Ineffective assistance of counsel claims
A. Failure to request voluntary intoxication instruction
Johnson contends he was denied effective assistance of
counsel because his defense counsel failed to request a jury
instruction on voluntary intoxication. We disagree.
A criminal defendant has the right to assistance of counsel
under both the state and federal constitutions. (U.S. Const., 6th
Am.; Cal. Const., art. I, §15; People v. Ledesma (1987) 43 Cal.3d
171, 215.) The two-prong test for ineffective assistance of counsel
is well settled. The defendant must show that (1) counsel’s
performance was deficient and (2) he or she suffered prejudice as
a result. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688; People v. Mickel (2016) 2 Cal.5th 181, 198.)
Johnson argues defense counsel should have requested a
voluntary intoxication instruction based on his trial testimony.
To support his argument, Johnson points to his testimony that he
ingested methamphetamine before arriving at Jorge’s party and
55
drank 10 to 15 beers and smoked marijuana after arriving. He
further testified that he was intoxicated by the time he went over
to the Katrina Place party.
But as the Attorney General points out, the evidence of
Johnson’s intoxication was not strong. Johnson’s statement to
the detectives contradicted his trial testimony. During the
interview, Johnson indicated he consumed only two to four beers.
He also failed to mention that he ingested methamphetamine.
Johnson conceded he was not really drunk to the point of being
unable to comprehend what happened.
We further reject Johnson’s assertion that there was no
tactical reason to forgo requesting the intoxication instruction.
At trial, Johnson claimed to have an alibi. Specifically, he
testified that he went home after being assaulted at the Katrina
Place party and remained there for the rest of the night. Defense
counsel could well have reasoned Johnson’s testimony made any
resort to an intoxication defense impractical because it would
have undercut his alibi defense. (People v. Olivas (2016) 248
Cal.App.4th 758, 772.)
Johnson’s defense counsel did not fall “‘below an objective
standard of reasonableness … under prevailing professional
norms.’” (People v. Lopez (2008) 42 Cal.4th 960, 966; People v.
Mickel, supra, 2 Cal.5th at p. 198.) Accordingly, his failure to
request the intoxication instruction did not amount to ineffective
assistance of counsel.
B. Failure to object to gang expert testimony
Cerda contends he was denied effective assistance of
counsel because of the failure to object to the gang expert’s
testimony about a so-called “hard card,” which indicated he was a
gang member. Because the entries on the card had not been
56
made by the testifying expert himself, Cerda contends their
admission violated both California hearsay law and the federal
confrontation clause as established by Crawford v. Washington
(2004) 541 U.S. 36 (Crawford).
1. Additional facts
Detective Gillis explained how deputies collect information
on suspected gang members during the daily course of their work.
Deputies routinely fill out field identification cards, or “F.I.”
cards, to track their contacts with suspected gang members. This
information includes the date and location of the contact, the
person’s name, birth date, address, description, tattoos, driver’s
license number, gang name, and associates. Gillis noted that an
F.I. card is not always completed for every contact with a person.
A “hard card” contains a photograph of the person and a
compilation of information from F.I. cards.
Gillis personally spoke to Cerda in the past. But he could
not recall if Cerda had ever admitted to him that he was an LMS
gang member. Gillis testified he reviewed Cerda’s hard card and
an F.I. card completed by a deputy named Fender. According to
the hard card, Cerda was affiliated with the LMS gang. The hard
card also indicated that Cerda admitted membership in March or
August of 2008. Gillis opined that Cerda was an LMS member
based on his “consistent association” with LMS members in an
area which they were trying to claim as their turf.
2. Confrontation clause
Under Crawford, admission of testimonial hearsay against
a criminal defendant violates the Sixth Amendment right to
confrontation, unless the declarant is unavailable to testify and
the defendant had a previous opportunity to cross-examine him
or her. (Crawford, supra, 541 U.S. at pp. 53–54.) Confrontation
57
clause jurisprudence, especially regarding expert testimony, has
evolved since Cerda’s trial in February and March of 2011. (See
People v. Blessett (2018) 22 Cal.App.5th 903, 931–933 [discussing
the development in confrontation clause analysis].) Our Supreme
Court in People v. Sanchez has since considered the extent to
which Crawford limits an expert witness from relating case-
specific hearsay in forming an opinion. (People v. Sanchez (2015)
63 Cal.4th 665, 670–671 (Sanchez).) “Sanchez ‘jettisoned’ the
former ‘not-admitted-for-its-truth’ rationale underlying the
admission of expert basis testimony, and occasioned a ‘paradigm
shift’ in the law.” (People v. Iraheta (2017) 14 Cal.App.5th 1228,
1246.)
We need not discuss the intricacies of the Crawford
evolution. At the time of trial in 2011, an objection to Gillis’s
testimony about the notations on Cerda’s hard card would have
been routinely and properly overruled by the trial court. At the
time, the well-established rule in California was that reliable
hearsay evidence was admissible under Evidence Code
sections 801 and 802 for the non-hearsay purpose of revealing the
basis for an expert witness’s opinion and, in that context, such
evidence was not admitted for its truth. (See People v. Gardeley
(1996) 14 Cal.4th 605, 618, disapproved by Sanchez, supra, 63
Cal.4th at p. 686, fn. 13 [expert testimony may be premised on
material not admitted into evidence if “it is material of a type
that is reasonably relied upon by experts in the particular field in
forming their opinions” and the expert “can, when testifying,
describe the material that forms the basis of the opinion”].)
We cannot see how Cerda’s defense counsel could have been
reasonably expected to anticipate the subsequent change in law
wrought by Sanchez. Defense counsel cannot be faulted “when
58
the pertinent law later changed so unforeseeably that it is
unreasonable to expect trial counsel to have anticipated the
change.” (People v. Turner (1990) 50 Cal.3d 668, 703.) At the
time of Cerda’s trial, it was not reasonably foreseeable that
caselaw would conclude the hearsay upon which the gang expert
relied was offered for its truth, and the admission of such hearsay
violated the confrontation clause. Accordingly, we conclude
Cerda has failed to show that defense counsel’s performance was
deficient.
VIII. No cumulative error
Johnson contends the cumulative prejudicial effect of the
various trial errors he has raised on appeal requires the reversal
of his conviction. Because we have found no errors for Johnson,
his claim of cumulative error fails. (People v. Seaton (2001) 26
Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297, 335.)
IX. Claims of sentencing error
A. Cerda’s sentences on the attempted murder counts
The Attorney General asserts that the trial court erred by
not imposing sentences of 35 years to life on each of the
attempted premeditated murder convictions arising out of the
Katrina Place shooting (counts 2 through 14). Based on the
Attorney General’s calculation, each sentence would consist of a
life term for attempted premeditated murder (§ 664), enhanced
by a 15-year minimum parole eligibility term for the gang penalty
provision (§ 186.22, subd. (b)(5)), plus an additional 20-year
enhancement for a principal discharging a firearm (§ 12022.53,
subd. (c), (e)).
We disagree. For counts 2 through 14, the trial court
correctly imposed the seven-year minimum parole eligibility
period under section 3046, subdivision (a)(1), and did not increase
59
it to 15 years for the gang penalty provision. Because Cerda did
not personally use or discharge a firearm at the Katrina Place
shooting, section 12022.53, subdivision (e)(2) prohibits the
imposition of both the vicarious firearm enhancement and the
gang penalty provision. (People v. Brookfield (2009) 47 Cal.4th
583, 595 (Brookfield); People v. Gonzalez (2010) 180 Cal.App.4th
1420, 1427 (Gonzalez).) Only the punishment for the firearm
enhancement could be imposed because it was the greater
penalty. (§ 12022.53, subd. (j).)
Cerda contends the trial court erred by imposing sentences
of 35 years to life for the attempted premeditated murder
convictions arising out of the Morning Circle shooting (counts 15
through 24). He argues that the trial court should have stayed
the minimum parole eligibility term of 15 years for the gang
penalty provision because of the prohibition against imposing
both the vicarious firearm enhancement and the gang penalty
provision, pursuant to section 12022.53, subdivision (e)(2).
(Brookfield, supra, 47 Cal.4th at p. 595; Gonzalez, supra, 180
Cal.App.4th at p. 1427.)
We reject Cerda’s argument because he was not vicariously
liable for counts 15 through 24. He personally discharged the
firearm in the Morning Circle shooting. Thus, the prohibition
under section 12022.53, subdivision (e)(2) does not apply to these
counts.
B. Probation report at sentencing
Cerda also argues that he must be resentenced because no
probation report was prepared at the time of sentencing. We
reject this argument. A probation report is not necessarily
required if the defendant is statutorily ineligible for probation.
(People v. Dobbins (2005) 127 Cal.App.4th 176, 180; People v.
60
Murray (2012) 203 Cal.App.4th 277, 289.) The firearm
enhancement made Cerda ineligible for probation. (§ 12022.53,
subd. (g).) Additionally, a probation report was subsequently
prepared and filed. Because Cerda cites no mistakes in the
report, he has failed to demonstrate any error.
X. Limited remand in accordance with Franklin
Johnson was found guilty of second degree murder and 23
counts of attempted premeditated murder, for which the trial
court imposed a sentence of 410 years to life. Johnson is entitled
to have his case remanded to the trial court to create a record of
information relevant to his eventual youth offender parole
hearing. The Attorney General agrees.
Based on the Eighth Amendment’s prohibition on cruel and
unusual punishment, the United States Supreme Court has
concluded the “imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not
children.”43 (Miller v. Alabama (2012) 567 U.S. 460, 474.) The
Court has expressed concern about sentencing juvenile offenders
to prison terms that prevent any possibility of rehabilitation and
eventual release. (Roper v. Simmons (2005) 543 U.S. 551, 569–
570 [concluding juvenile offenders must be treated differently
than adult offenders for sentencing because they have lessened
culpability, lack maturity, and are more vulnerable to negative
influences].) Accordingly, the Court has prohibited: (1) execution
for an offense committed as a juvenile (id. at p. 578), (2) a life
without the possibility of parole sentence for a nonhomicide
offense committed by a juvenile (Graham v. Florida (2010) 560
43
The Eight Amendment applies to the states. (Robinson v.
California (1962) 370 U.S. 660, 666–667.)
61
U.S. 48, 74), and (3) the automatic imposition of a life without the
possibility of parole sentence for a homicide offense committed by
a juvenile. (Miller, at p. 474.)
Our Supreme Court has further considered these
prohibitions. First, People v. Caballero (2012) 55 Cal.4th 262,
268, concluded that sentencing a juvenile offender for a
nonhomicide offense to a term which is the “functional equivalent
of a life without parole sentence” constitutes cruel and unusual
punishment. Second, Franklin, supra, 63 Cal.4th at pages 275–
276, prohibited the imposition of the functional equivalent of a
life without the possibility of parole sentence on juvenile
offenders for a homicide offense unless the sentencing authority
retains individualized discretion to impose a less severe sentence
and considers youth-related mitigating factors.
The Legislature also passed Senate Bill No. 260, which
became effective January 1, 2014. (Stats. 2013, ch. 312, §§ 1, 4,
5.) Senate Bill No. 260 added section 3051 and 4801, subdivision
(c). As pertinent here, section 3051, subdivision (b)(3) provides a
youth offender parole hearing to a person, who was under 25
years old at the time of his or her controlling offense and was
sentenced to 25 years to life or greater. 44 The hearing must occur
44
The juvenile offender’s “controlling offense” is defined as
“the offense or enhancement for which any sentencing court
imposed the longest term of imprisonment.” (§ 3051,
subd. (a)(2)(B).) The statute originally applied only to offenders
under the age of 18 (Stats. 2013, ch. 312, § 4), but was amended
to apply to offenders who were under the age of 23 when they
committed the controlling offense. (Stats. 2015, ch. 471, § 1;
People v. Costella (2017) 11 Cal.App.5th 1, 8.) Section 3051 was
62
during the 25th year of his or her sentence. Section 4801,
subdivision (c) was designed to ensure that eligible juvenile
offenders have a meaningful opportunity for release no more than
25 years into their incarceration, upon consideration of the
diminished culpability of juveniles, the hallmark features of
youth, and any subsequent growth and increased maturity.
(Franklin, supra, 63 Cal.4th at p. 277; People v. Jones (2017) 7
Cal.App.5th 787, 817.)
The Legislature intended youth offender parole hearings to
apply retrospectively to all eligible youth offenders regardless of
the date of conviction. (Franklin, supra, 63 Cal.4th at p. 278.)
Eligibility under section 3051, subdivision (b) is open to any
person “convicted of a controlling offense that was committed
before the person had attained 25 years of age.” Section 3051,
subdivision (i) also states, “The board shall complete all youth
offender parole hearings for individuals who become entitled to
have their parole suitability considered at a youth offender parole
hearing on the effective date of this section by July 1, 2015.”
Thus, the statutory text makes clear that the provisions apply to
juvenile offenders already sentenced at the time of enactment.
Franklin concluded sections 3051 and 4801 contemplate
that information of the juvenile offender’s characteristics and the
circumstances at the time of the offense would be relevant at the
youth offender parole hearing to facilitate consideration by the
Board of Parole Hearings. (Franklin, supra, 63 Cal.4th at
pp. 283–284.) Section 3051, subdivision (f) permits the
submission of psychological evaluations and risk assessments, as
amended again in 2017 to apply to persons 25 years of age or
younger. (Stats. 2017, ch. 684, § 1.5.)
63
well as statements by various persons with knowledge about the
youth offender before the crime. Such a task would typically be
“more easily done at or near the time of the juvenile’s offense
rather than decades later when memories have faded, records
may have been lost or destroyed, or family or community
members may have relocated or passed away.” (Id. at pp. 283–
284.)
Accordingly, a juvenile offender must be afforded an
opportunity to make a record of the relevant information for his
or her later youth offender parole hearing. (Franklin, supra,
63 Cal.5th at p. 284.) Franklin further directed trial courts to
receive submissions and testimony, pursuant to the procedures in
section 1204 and rule 4.437 of the California Rules of Court,
subject to the rules of evidence. (Ibid.) The prosecutor may also
introduce any evidence that demonstrates the offender’s
culpability or cognitive maturity, or otherwise bears on the
influence of youth-related factors. (Ibid.)
Johnson was 16 years old at the time of the shootings. On
August 26, 2011, he was sentenced to a term greater than 25
years to life. He did not have any opportunity to present
evidence relevant to his future youth offender parole hearing. We
believe the proper course is to remand to the trial court to follow
the procedures outlined in Franklin to ensure Johnson is afforded
the opportunity to develop the record. (People v. Jones, supra, 7
Cal.App.5th at pp. 819–820; People v. Scott (2016) 3 Cal.App.5th
1265, 1283; People v. Perez (2016) 3 Cal.App.5th 612, 619.)
XI. Remand in light of SB 620
Cerda and Johnson request that we remand for
resentencing to allow the trial court to exercise its discretion to
strike the firearm enhancements, in light of SB 620.
64
Effective January 1, 2018, the Legislature amended section
12022.53 by adding subdivision (h), which allows a court to
exercise its discretion under section 1385 to strike or dismiss the
personal use of a firearm enhancement at the time of sentencing.
(Sen. Bill No. 620 (2017–2018 Reg. Sess.), Stats. 2017, ch. 682,
§ 1, p. 5104; People v. Billingsley (2018) 22 Cal.App.5th 1076,
1080; People v. Robbins (2018) 19 Cal.App.5th 660, 678.)
The amendment to section 12022.53 applies to cases that were
not final when it became operative. (People v. Watts (2018) 22
Cal.App.5th 102, 119; People v. Arredondo (2018) 21 Cal.App.5th
493, 507; Estrada, supra, 63 Cal.2d at p. 745.)
“‘“Defendants are entitled to sentencing decisions made in
the exercise of the ‘informed discretion’ of the sentencing court.
[Citations.] A court which is unaware of the scope of its
discretionary powers can no more exercise that ‘informed
discretion’ than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s
record.” [Citation.] In such circumstances, we have held that the
appropriate remedy is to remand for resentencing unless the
record “clearly indicate[s]” that the trial court would have
reached the same conclusion “even if it had been aware that it
had such discretion.”’ (People v. Gutierrez (2014) 58 Cal.4th 1354,
1391.)” (People v. Chavez (2018) 22 Cal.App.5th 663, 713.)
For both Cerda and Johnson, the record does not clearly
indicate whether the trial court would have imposed the firearm
enhancements had it possessed the discretion to strike them.
Out of an abundance of caution, we remand for resentencing.45
45
We decline to follow Cerda’s suggestion to direct the trial
court to appoint new counsel because he claims ineffective
assistance by his prior counsel in a petition for writ of habeas
65
We express no opinion about how the trial court should exercise
its discretion on remand.]]
corpus currently before the California Supreme Court. Upon
remand, Cerda can move to discharge his appointed counsel
based on ineffective assistance and request to have new counsel
appointed for his resentencing. (People v. Marsden (1970) 2
Cal.3d 118, 123.)
66
DISPOSITION
Cerda’s first degree murder conviction is reversed. We
remand the matter for the district attorney to decide whether to
accept a reduction of this conviction to second degree murder or
retry Cerda for first degree murder under theories other than the
natural and probable consequences doctrine.
The sentences for both Cerda and Johnson are vacated. We
remand for resentencing to allow the trial court to exercise its
discretion and determine whether to strike the firearm
enhancements under section 12022.53. The trial court is also to
afford Johnson an opportunity to make a record of information for
the Board of Parole Hearings to fulfill its obligations under
sections 3051 and 4801, as required by Franklin, supra, 63
Cal.5th at pages 286–287. The judgments of conviction are
otherwise affirmed as to both Cerda and Johnson.
CERTIFIED FOR PARTIAL PUBLICATION.
HANASONO, 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.
67