Filed 8/21/19; Opinion following transfer from Supreme Court
                    CERTIFIED FOR PARTIAL PUBLICATION *


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION SEVEN


THE PEOPLE,                                       B271516

       Plaintiff and Respondent,                  (Los Angeles County
                                                  Super. Ct. No. BA404685)
       v.

JANETH LOPEZ et al.,

       Defendants and Appellants.


      APPEALS from judgments of the Superior Court of
Los Angeles County, Curtis B. Rappé, Judge. Remanded with
directions.
      John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant Janeth Lopez.
      Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant Ivy Navarrete.



*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts 5 through 10 of the Discussion.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle, Amanda V. Lopez, Steven D.
Matthews and David E. Madeo, Deputy Attorneys General, for
Plaintiff and Respondent.
                       ____________________
      An act of vandalism—spraying graffiti on a church wall—
ended with one person dead and a second wounded. The shooter,
Pedro Martinez, was convicted of first degree murder and
attempted premeditated murder. Following a mistrial and a
second trial, Janeth Lopez, who had marked the church wall with
spray paint, and Ivy Navarrete, who drove Martinez and Lopez
away from the church after the shooting, were convicted of second
degree murder and attempted premeditated murder with special
findings the offenses had been committed to benefit a criminal
street gang and a principal had personally discharged a firearm
causing death or great bodily injury to the victims.
      In a nonpublished opinion filed in August 2017 we rejected
Lopez’s and Navarrete’s challenges to the propriety of their
convictions for murder and attempted murder under the natural
and probable consequences doctrine and to the sufficiency of the
evidence to support the finding the crimes had been committed to
benefit a criminal street gang, affirmed the judgment as modified
to correct sentencing errors and remanded as to Lopez for further
proceedings pursuant to People v. Franklin (2016) 63 Cal.4th 261
(Franklin).
      Lopez’s and Navarrete’s petitions for review were granted
by the Supreme Court in November 2017, but further action was
deferred pending consideration of a related issue in People v.
Mateo, review granted May 13, 2016, S232674, transferred to




                                2
court of appeal March 15, 2019—whether, to convict an aider and
abettor of attempted premeditated murder under the natural and
probable consequences doctrine, both premeditation and
attempted murder must have been reasonably foreseeable by an
individual committing the target offense. Before that case was
decided, the Legislature enacted Senate Bill No. 1437 (SB 1437)
(Stats. 2018, ch. 1015), which “amend[ed] the felony murder rule
and the natural and probable consequences doctrine, as it relates
to murder.” (Id., § 1, subd. (f).) The Supreme Court then
transferred this case to us with directions to vacate our decision
and to reconsider it in light of SB 1437, as well as Senate Bill
No. 620 (SB 620) (Stats. 2017, ch. 682), effective January 1, 2018,
which authorized the trial court to strike or dismiss certain
previously mandatory firearm enhancements. (People v. Lopez
(Apr. 10, 2019, S243921) [2019 Cal. Lexis 2386].)
      SB 1437 eliminates aider and abettor liability for murder
under the natural and probable consequences doctrine, the sole
theory advanced by the People at trial for convicting Lopez and
Navarrete of murder. On remand Lopez and Navarrete will have
the opportunity to petition the trial court, pursuant to newly
                                     1
enacted Penal Code section 1170.95, to vacate their murder
convictions and to be resentenced unless the People establish
beyond a reasonable doubt that either of them is not entitled to
be resentenced. (See § 1170.95, subd. (d)(3).) Lopez’s and
Navarrete’s statutory and constitutional arguments to the
contrary notwithstanding, however, SB 1437 does not affect their
convictions for attempted premeditated murder under the


1
      Statutory references are to this code unless otherwise
stated.



                                 3
                                             2
natural and probable consequences doctrine. Accordingly, we
again affirm those convictions, as well as the related criminal
street gang enhancements. On remand the trial court must also
correct several sentencing errors, consider whether to exercise its
discretion to dismiss or strike the firearm enhancement imposed
on the attempted murder counts and conduct further proceedings
pursuant to Franklin, supra, 63 Cal.4th 261 as to Lopez.
                  FACTUAL BACKGROUND
       1. The Shootings
       In the early evening of November 4, 2012 Hipolito Acosta,
Santos Baquiax and Andres Ordonez were in the back parking lot
of a church at the corner of Beverly Boulevard and Reno Street in
Los Angeles, preparing food for members of the congregation.
When they heard the sound of shattering glass from the street,
Acosta went to investigate. He saw Lopez spray painting graffiti
on the wall of the church and asked what she was doing. Lopez
replied, “Fuck off,” and ran at Acosta, hitting him on the arm
with the spray paint can. Lopez knocked Acosta to the ground
and kicked him, all the while yelling at him.
       As Lopez was attacking Acosta, Baquiax and Ordonez came
out from the parking lot. When Baquiax was about six feet from
Acosta, and Ordonez about 12 feet away, Lopez ran to a BMW
parked in front of the church. Acosta saw her throw the spray
paint can on the ground.
       As Lopez ran back to the BMW, Martinez got out of the
back seat of the car and fired three or four shots in the direction

2
      Lopez and Navarrete have joined in all contentions raised
by one that might also accrue to the other’s benefit. (See Cal.
Rules of Court, rule 8.200(a)(5).)



                                 4
of Baquiax and Ordonez. One bullet hit Baquiax in the shoulder,
and he fell to the ground. Another bullet struck Ordonez in the
chest; he managed to walk back to the parking lot, where he
collapsed. Ordonez died from the bullet wound to his chest.
      Martinez returned to the BMW. Baquiax saw someone in
the driver’s seat but could not tell if it was a man or a woman.
The BMW drove away.
      2. The Investigation
      Officers from the Los Angeles Police Department arrived at
the scene shortly after the shootings. They recovered three
shells, which had been fired from a semiautomatic weapon, from
the sidewalk and found a spray paint can by the curb. Lopez’s
fingerprint and DNA were on the can. The police also found a
broken beer bottle in the gutter near the spray paint can.
Navarrete’s fingerprint and DNA were on the bottle. Graffiti
found on a nearby building contained three names: “Looney,”
“Wicked” and “Ivy.” It also had the words, “Fuck Tampax.”
      On November 7, 2012 Baquiax identified Lopez from a
photographic lineup as the woman he saw hitting Acosta.
Baquiax also identified Martinez from a photographic lineup as
the shooter. On November 8, 2012 Acosta also identified Lopez
from a photographic lineup. He was not certain of his
identification but thought she “could be the one.”
      Officers arrested Lopez at her home a few miles from the
crime scene on November 8, 2012. The following day Navarrete’s
home was searched. The officers found a letter Lopez sent to
Navarrete in 2008 that referred to “Rockwood” and was signed
“from Looney.” Officers also found a photograph of Lopez and
Navarrete together; Lopez was making a Rockwood Street gang
hand symbol.




                               5
       At the time of the church shooting Navarrete had been
living with Sonia Vallejo. Navarrete and Vallejo’s stepson had a
child together. According to Vallejo, Navarrete and Lopez were
close friends and spent weekends together. Navarrete, who drove
a grey BMW, provided transportation for Lopez, who did not have
a car. Navarrete also talked to someone named Pedro or Peter.
       On the day of the shooting, Friday, November 4, 2012,
Navarrete told Vallejo she was going to be with Lopez. Navarrete
returned home Sunday night. Several days later Navarrete was
gone, leaving her child and all her belongings at Vallejo’s home.
Navarrete and Martinez were found and detained in Mexico in
February 2013.
       The police examined cell phones belonging to Lopez,
Navarrete and Martinez. Lopez’s contacts included Navarrete
and Martinez. Navarrete and Martinez had exchanged text
messages; Martinez had made calls to Lopez. On the evening of
November 6, 2012 all three cell phones had been in the same
general area near Lopez’s home and near the scene of the
shooting.
       3. Gang Evidence
       Los Angeles Police Officer Antonio Hernandez testified
Rockwood Street was a criminal street gang that had started in
the early 1980’s. In November 2012 it had about 180 members,
including 20 active members. (Officer Hernandez defined active
members as members who were not incarcerated.) The gang had
its own territory, symbols and hand signs. The gang’s primary
activities included murder, robbery, assault and extortion.
Rockwood Street members were convicted of murder in 2007 and
2008.




                                6
       Officer Hernandez explained Rockwood Street had subsets
or cliques based on location. Two of the cliques were
Westmoreland and K.T.O. Members of these two cliques got
along with one another and engaged in joint activities.
       According to Officer Hernandez, the Temple Street gang
had been Rockwood Street’s enemy since 2003; and members of
the two gangs tried to eliminate or kill each other. Rockwood
Street members used “Tampax” as a derogatory term for Temple
Street members. The areas where the shootings took place and
the additional graffiti was discovered were in Temple Street
territory.
       Officer Hernandez knew Lopez to be a Rockwood Street
member in the K.T.O. clique with the moniker “Looney.” She had
admitted being a member, had Rockwood Street tattoos, had
appeared in photographs with other Rockwood Street members
making gang signs and had sent text messages discussing
“Temple” and being in its territory.
       The text messages on Lopez’s cell phone referred to her
being “in the hood” and “posted with the homies,” which signified
she was out in public with other gang members. “I went writing
to the Tampax hood,” a message also found on her phone, meant
she had been tagging in Temple Street territory.
       Officer Hernandez believed Martinez was a Rockwood
Street member in the Westmoreland clique, with the gang
monikers “Rabbit” and “Wicked.” Martinez had Rockwood Street
tattoos on his head, arms, legs and body.
       Officer Hernandez opined that Navarrete was a Rockwood
Street associate based on his previous contact with her, the fact
her boyfriend, Martinez, was a gang member and the 2008 letter
Lopez had written to Navarrete discussing Rockwood Street.




                                7
According to Officer Hernandez, Lopez would not write such
things to an individual who was not associated with the gang.
The officer explained the term “associate” was used for someone
who was seen with the gang in public and might be involved in
criminal activity with the gang but either was not a formal
member of the gang or, due to insufficient information, could not
be determined by law enforcement to be a gang member.
       Officer Hernandez explained that tagging crews use graffiti
as art, while gang members use graffiti to mark their territory.
Territory is very important to gang members, and infiltrating
another gang’s territory is an aggressive sign of disrespect.
Putting up graffiti in a rival gang’s territory would boost a gang
member’s respect within his or her own gang. However, a gang
member engaging in this activity could expect members of the
rival gang to react with violence, including assault with a deadly
weapon or murder, if caught in the act. For this reason, a gang
member putting up graffiti in rival territory would often go with
a group that might include a getaway driver and a shooter in case
there was a violent confrontation.
       Given a hypothetical based on the facts of the case, Officer
Hernandez opined the shootings were for the benefit of, and in
association with, a criminal street gang: It showed the gang was
able to put up graffiti in its rival’s territory, and no one was
capable of preventing it from doing so.
       The fresh graffiti found on the building near the shooting
scene included the word “REST” with the “T” crossed out, as a
sign of disrespect to Temple Street, and “Fuck Tampax,” another
sign of disrespect. The names “Looney,” “Wicked” and “Ivy” were
a roll call of the participants. Officer Hernandez stated this




                                 8
graffiti was similar to the graffiti Lopez had placed on the church
wall.
       4. Defense
       Neither Lopez nor Navarrete testified in her own defense.
Ana Mendez, Ordonez’s wife, told the police that she saw a man
drive up in a black car, get out and begin shooting.
       In an interview shortly after the shooting, Veronica
Canales told the police that two men waited in the car while the
female tagger attacked Acosta. However, in a November 8, 2012
interview Canales said a man got out of the rear of the car and
started shooting. She did not really see the car or who was in it
because she was focused on the attack on Acosta.
               PROCEDURAL BACKGROUND
       1. The First Trial
       On July 15, 2013 Lopez, Navarrete and Martinez were
charged by information with the murder of Ordonez (§ 187,
subd. (a); count 1); attempted willful, deliberate and
premeditated murder of Baquiax (§§ 187, subd. (a), 664; count 2)
and Acosta (count 3); and misdemeanor vandalism—graffiti—
with damage under $400 (§ 594, subd. (a); count 4). The
information alleged that in the commission of the murder and
attempted murders a principal had personally used and
intentionally discharged a firearm (§ 12022.53, subds. (b), (c),
(e)(1)) and, as to counts 1 and 2, the principal’s personal use and
discharge of the firearm caused great bodily injury and death
(§ 12022.53, subds. (d), (e)(1)). The information further alleged
the crimes had been committed for the benefit of a criminal street
gang (§ 186.22, subds. (b)(1)(C), (d)). The information also
alleged that Navarrete and Martinez each had a prior conviction




                                 9
of a serious or violent felony within the meaning of the three
strikes law (§§ 667, subds. (b)-(i), 1170.12).
       At the initial trial in the case, the jury convicted Martinez
of first degree murder, one count of attempted premeditated
murder (Baquiax) and vandalism and found true the firearm-use
and criminal street gang enhancement allegations. It was unable
to reach a verdict as to the second count of attempted murder
         3
(Acosta).
       The jury convicted Lopez and Navarrete of vandalism and
found true the criminal street gang allegations. It was unable to
reach a verdict as to the remaining charges, and the trial court
declared a mistrial as to those counts.
       2. The Second Trial and Sentencing
       When the case was called for retrial on November 9, 2015,
on the People’s motion the trial court dismissed the count
alleging Acosta’s attempted murder. The jury then convicted
Lopez and Navarrete of second degree murder and attempted
willful, deliberate and premeditated murder. It found true the
special allegations a principal had personally and intentionally
discharged a firearm in the commission of the crimes, causing
great bodily injury and death, and the crimes were committed for
the benefit of a criminal street gang.
       The trial court sentenced Lopez to an aggregate
indeterminate state prison term of 40 years to life: 15 years to
life for second degree murder, plus 25 years to life for the
firearm-use enhancement on that count; and a concurrent term of
life for attempted premeditated murder with a minimum parole


3
     We affirmed Martinez’s convictions in 2016. (People v.
Martinez (Dec. 12, 2016, B262799) [nonpub. opn.].)



                                 10
eligibility date of 15 years based on the criminal street gang
enhancement, plus 25 years to life for the firearm-use
enhancement on that count. The court also imposed and stayed
10-year criminal street gang enhancements on those two counts
and imposed and stayed a two-year term for vandalism, which
became punishable as a felony because of the gang enhancement.
       The court sentenced Navarrete to an aggregate
indeterminate state prison term of 60 years to life: 15 years to
life for second degree murder, doubled for the prior strike, plus
25 years to life for the firearm-use enhancement on that count,
plus five years for a prior serious felony conviction; and a
concurrent term of life imprisonment for attempted premeditated
murder, with a minimum parole eligibility date of 30 years, plus
25 years to life for the firearm-use enhancement on that count,
plus five years for the prior serious felony conviction. As with
Lopez, the court also imposed and stayed 10-year criminal street
gang enhancements on those two counts and imposed and stayed
a two-year felony term for vandalism.
                            DISCUSSION
       1. SB 1437: Redefining Accomplice Liability for Murder
           a. Senate Concurrent Resolution No. 48, the precursor
              to SB 1437
       In September 2017, a year prior to enactment of SB 1437,
the Legislature adopted Senate Concurrent Resolution No. 48
(2017-2018 Reg. Sess.) resolution chapter 175 (SCR 48),
recognizing the need for statutory changes to more equitably
sentence offenders in relation to their involvement in the
criminal activity. Most of the resolution’s “whereas” clauses
focused on the felony-murder rule. However, SCR 48 also stated,
“[R]eform is needed in California to limit convictions and
subsequent sentencing in both felony murder cases and aider


                               11
and abettor matters prosecuted under [the] ‘natural and probable
consequences’ doctrine so that the law of California fairly
addresses the culpability of the individual and assists in the
reduction of prison overcrowding, which partially results from
lengthy sentences which are not commensurate with the
culpability of the defendant”; and observed that the natural and
probable consequences doctrine “result[s] in individuals lacking
the mens rea and culpability for murder being punished as if they
were the ones who committed the fatal act.” SCR 48 also noted,
“It can be cruel and unusual punishment to not assess individual
liability for nonperpetrators of the fatal act or in nonhomicide
matters the criminal charge resulting in prosecution and impute
culpability for another’s bad act, thereby imposing lengthy
sentences that are disproportionate to the conduct in the
underlying case.”
       Following 28 “whereas” provisions, the Senate, with the
Assembly concurring, resolved “[t]hat the Legislature recognizes
the need for statutory changes to more equitably sentence
offenders in accordance with their involvement in the crime.”
         b. SB 1437
      On September 30, 2018 the Governor signed SB 1437,
which, effective January 1, 2019, amended sections 188 and 189
and added section 1170.95 to the Penal Code, significantly
modifying the law relating to accomplice liability for murder. In
its uncodified findings and declarations the Legislature referred
to SCR 48, “which outlines the need for the statutory changes
contained in this measure” (Stats. 2018, ch. 1015, § 1, subd. (c)),
and stated, “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



                                 12
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.” (Id., § 1,
subd. (f).) The Legislature also declared, “Except as stated in
subdivision (e) of Section 189 of the Penal Code [relating to first
degree felony murder], a conviction for murder requires that a
person act with malice aforethought. A person’s culpability for
murder must be premised upon that person’s own actions and
subjective mens rea.” (Id., § 1, subd. (g).)
       To effectuate this legislative purpose, SB 1437 added a
crucial limitation to section 188’s definition of malice for purposes
                        4
of the crime of murder. New section 188, subdivision (a)(3),
provides, “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
                                                             5
person based solely on his or her participation in a crime.”
      New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the

4
    Section 187 defines murder as “the unlawful killing of a
human being, or a fetus, with malice aforethought.”
5
       Prior to enactment of SB 1437, section 188, subdivision (a),
provided, “For purposes of Section 187, malice may be express or
implied. [¶] (1) Malice is express when there is manifested a
deliberate intention to unlawfully take away the life of a fellow
creature. [¶] (2) Malice is implied when no considerable
provocation appears, or when the circumstances attending the
killing show an abandoned and malignant heart.”



                                 13
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
               6
Section 190.2.”
       SB 1437 also added section 1170.95, which permits those
convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to
vacate the conviction and to be resentenced on any remaining
counts if he or she could not have been convicted of first or second
degree murder because of SB 1437’s changes to sections 188 and
189. (§ 1170.95, subd. (a).) If the prosecutor does not stipulate to
vacating the conviction and resentencing the petitioner, the
People have the opportunity to present new and additional
evidence to demonstrate the petitioner is not entitled to
resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also has
the opportunity to present new or additional evidence in support
of the resentencing request. (Ibid.)



6
      The conditions for imposing liability for first degree felony
murder specified in section 189, subdivision (e), do not apply to a
participant in one of the enumerated felonies when the victim is a
peace officer who was killed while in the course of his or her
duties when the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of his or her duties. (See § 189, subd. (f).)



                                  14
         c. SB 1437 eliminates liability for murder under the
             natural and probable consequences doctrine
            i. People v. Chiu and its extension to conspiracies
       In People v. Prettyman (1996) 14 Cal.4th 248, 259-260
(Prettyman), the Supreme Court explained, “It sometimes
happens that an accomplice assists or encourages a confederate
to commit one crime, and the confederate commits another, more
serious crime (the nontarget offense). Whether the accomplice
may be held responsible for the nontarget offense turns not only
upon a consideration of the general principles of accomplice
liability set forth in People v. Beeman [(1984)] 35 Cal.3d 547, but
also upon a consideration of the ‘natural and probable
consequences’ doctrine . . . .”
       Addressing the scope of the doctrine, the Prettyman Court
held, “Under the ‘natural and probable consequences’
doctrine . . . , the jury must decide: whether the defendant
(1) with knowledge of the confederate’s unlawful purpose; and
(2) with the intent of committing, encouraging, or facilitating the
commission of any target crime(s); (3) aided, promoted,
encouraged, or instigated the commission of the target crime(s).
The jury must also determine whether (4) the defendant’s
confederate committed an offense other than the target crime(s);
and whether (5) the offense committed by the confederate was a
natural and probable consequence of the target crime(s) that the
defendant encouraged or facilitated.” (Prettyman, supra,
14 Cal.4th at p. 271; accord, People v. Chiu (2014) 59 Cal.4th 155,
158 (Chiu) [“‘under the natural and probable consequences
doctrine, an aider and abettor is guilty not only of the intended
crime, but also “for any other offense that was a ‘natural and




                                15
probable consequence’ of the crime aided and abetted”’”], quoting
People v. McCoy (2001) 25 Cal.4th 1111, 1117; see § 31.) 7
       “A nontarget offense is a ‘“natural and probable
consequence”’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor
actually foresaw the nontarget offense. [Citation.] Rather,
liability ‘“is measured by whether a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.”’ [Citation.] Reasonable foreseeability ‘is
a factual issue to be resolved by the jury.’” (Chiu, supra,
59 Cal.4th at pp. 161-162, quoting People v. Medina (2009)
46 Cal.4th 913, 920.)
       In Chiu, supra, 59 Cal.4th 155 the Supreme Court
restricted the reach of the natural and probable consequences
doctrine in murder cases, holding an aider and abettor may not
be convicted of first degree premeditated murder under the
doctrine. (Id. at pp. 158-159.) The Court explained, “Aider and
abettor culpability under the natural and probable consequences
doctrine is vicarious in nature.” (Id. at p. 164.) “‘Because the
nontarget offense is unintended, the mens rea of the aider and
abettor with respect to that offense is irrelevant and culpability is
imposed simply because a reasonable person could have foreseen

7
      Section 31 provides, “All persons concerned in the
commission of a crime, whether it be felony or misdemeanor, and
whether they directly commit the act constituting the offense, or
aid and abet in its commission, or, not being present, have
advised and encouraged its commission . . . are principals in any
crime so committed.”



                                 16
the commission of the nontarget crime.’” (Ibid.) Although aider
and abettor liability is not directly measured by that actor’s
conduct or mental state, “the legitimate public policy concern of
deterring aiders and abettors from aiding or encouraging the
commission of offenses that would naturally, probably, and
foreseeably result in an unlawful killing,” the Court reasoned,
would be “served by holding them culpable for the perpetrator’s
commission of the nontarget offense of second degree murder.”
(Id. at p. 165.)
       The public policy concern for deterrence, however, “loses its
force in the context of a defendant’s liability as an aider and
abettor of a first degree premeditated murder. First degree
murder, like second degree murder, is the unlawful killing of a
human being with malice aforethought, but has the additional
elements of willfulness, premeditation, and deliberation which
trigger a heightened penalty. [Citation.] That mental state is
uniquely subjective and personal. It requires more than a
showing of intent to kill; the killer must act deliberately,
carefully weighing the considerations for and against a choice to
kill before he or she completes the acts that caused the death.
[Citations.] . . . [T]he connection between the defendant’s
culpability and the perpetrator’s premeditative state is too
attenuated to impose aider and abettor liability for first degree
murder under the natural and probable consequences doctrine,
especially in light of the severe penalty involved and the above
stated public policy concern of deterrence.” (Chiu, supra,
59 Cal.4th. at p. 166.) For these reasons, the Court held “that
punishment for second degree murder is commensurate with a
defendant’s culpability for aiding and abetting a target crime that




                                17
would naturally, probably, and foreseeably result in a murder
under the natural and probable consequences doctrine.” (Ibid.)
       Less than a year after Chiu, the Third District in People v.
Rivera (2015) 234 Cal.App.4th 1350 held the Chiu analysis
applies to a conviction for murder based on the natural and
probable consequence of a conspiracy. The court recognized “‘the
conspirator need only intend to agree or conspire and to commit
the offense which is the object of the conspiracy [citation]; while
the aider and abettor must intend to commit the offense or to
encourage or facilitate its commission.’” (Id. at p. 1356, fn. 5.)
However, “[u]nder both these theories, the extension of liability to
additional reasonably foreseeable offenses rests on the ‘policy
[that] conspirators and aiders and abettors should be responsible
for the criminal harms they have naturally, probably and
foreseeably put in motion.’ [Citation.] The problem with
extending a defendant’s liability for a first degree premeditated
murder to an aider and abettor (and we hold also a coconspirator)
under the natural and probable consequences doctrine was
explained in Chiu . . . .” (Id. at pp. 1356-1357; accord, People v.
Anthony (2019) 32 Cal.App.5th 1102, 1144; In re Lopez (2016)
246 Cal.App.4th 350, 357.)
            ii. Malice is now an essential element of liability for
                murder other than first degree felony murder as
                defined in section 189
      As the Supreme Court explained in Chiu, by its very
nature, aider and abettor liability under the natural and probable
consequences doctrine is not premised on the intention of the
aider and abettor to commit the nontarget offense because the
nontarget offense was not intended at all. The doctrine imposes
vicarious liability for any offense committed by the direct




                                 18
perpetrator that is a natural and probable consequence of the
target offense. It is not an implied malice theory; the mens rea of
the aider and abettor with respect to the nontarget offense,
actual or imputed, is irrelevant. (Chiu, supra, 59 Cal.4th at
       8
p. 164.) Rather, liability is imposed because a reasonable person
could have foreseen the commission of the additional offense.
(Ibid.)
       SB 1437 significantly restricted potential aider and abettor
liability, as well as coconspirator liability, for murder under the
natural and probable consequences doctrine, effectively
overruling Chiu insofar as it upheld second degree murder
convictions based on that theory. Now, rather than an objective,
reasonable foreseeability standard, as discussed in Prettyman
and Chiu, pursuant to new section 188, subdivision (a)(3), to be
guilty of murder other than as specified in section 189,
subdivision (e), concerning felony murder, the subjective mens
rea of “malice aforethought” must be proved: “[T]o be convicted of
murder, a principal in a crime shall act with malice
aforethought.” (See also SB 1437 (Stats. 2018, ch. 1015, § 1,
subd. (g) [“[a] person’s culpability for murder must be premised
upon that person’s own actions and subjective mens rea”].) And

8
      The felony-murder rule, in contrast, is predicated on the
imputation of malice to all the participants in the underlying
felony. (See People v. Bryant (2013) 56 Cal.4th 959, 965 [“‘[t]he
felony-murder doctrine, whose ostensible purpose is to deter
those engaged in felonies from killing negligently or accidentally,
operates to posit the existence of that crucial mental state—and
thereby to render irrelevant evidence of actual malice or the lack
thereof—when the killer is engaged in a felony whose inherent
danger to human life renders logical an imputation of malice on
the part of all who commit it’”].)



                                19
that required element of malice “shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188,
                 9
subd. (a)(3).)
      2. SB 1437 Does Not Modify Accomplice Liability for
         Attempted Murder
       SB 1437 does not mention the crime of attempted murder.
Nonetheless, citing to several of the Legislature’s findings and
declarations in the uncodified portion of SB 1437, Lopez and
Navarrete urge us to extend the legislation’s ameliorative
provisions to their convictions for attempted premeditated
murder. Lopez and Navarrete’s proposed construction of
amended section 188 does violence to the governing principles of
statutory interpretation.
       “‘“‘As in any case involving statutory interpretation, our
fundamental task . . . is to determine the Legislature’s intent so
as to effectuate the law’s purpose.’”’” (People v. Gonzalez (2017)
2 Cal.5th 1138, 1141; see Goodman v. Lozano (2010) 47 Cal.4th
1327, 1332 [“[i]n interpreting a statute, our primary goal is to
determine and give effect to the underlying purpose of the law”].)

9
       The court of appeal in People v. Gentile (2019)
35 Cal.App.5th 932, 943-944, which concluded SB 1437 does not
eliminate all second degree murder liability based on the natural
and probable consequences doctrine, appears to have misread
section 189, subdivision (e). Although that provision authorizes a
conviction for murder when the defendant, although acting
without malice, was a major participant in certain underlying
felonies and acted with reckless indifference to human life, it
does so solely in the context of the felony-murder rule. There is
no comparable exception to SB 1437’s elimination of murder
liability for an aider and abettor under the natural and probable
consequences doctrine.



                                20
“‘“‘[W]e begin by examining the statute’s words, giving them a
plain and commonsense meaning.’”’” (Gonzalez, at p. 1141.) “We
must follow the statute’s plain meaning, if such appears, unless
doing so would lead to absurd results the Legislature could not
have intended.” (People v. Birkett (1999) 21 Cal.4th 226, 231;
accord, Connor v. First Student, Inc. (2018) 5 Cal.5th 1026, 1035
[“‘“[i]f the statute’s text evinces an unmistakable plain meaning,
we need go no further”’”]; see People v. Gray (2014) 58 Cal.4th
901, 906 [“[i]f no ambiguity appears in the statutory language, we
presume that the Legislature meant what it said, and the plain
meaning of the statute controls”].)
         Here, there is nothing ambiguous in the language of
SB 1437, which, in addition to the omission of any reference to
attempted murder, expressly identifies its purpose as the need
“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).)
Had the Legislature meant to bar convictions for attempted
murder under the natural and probable consequences doctrine, it
could easily have done so. (See People v. Jillie (1992)
8 Cal.App.4th 960, 963 [statute expressly identifies offenses
within its scope, “all of which are completed offenses. Had the
Legislature meant to include attempts among the covered
offenses, it could easily have done so . . .”]; see also People v. Reed
(2005) 129 Cal.App.4th 1281, 1283 [enhancement for prior drug
conviction was unauthorized because, unlike a conviction for
possession of a controlled substance for sale, defendant’s




                                  21
conviction for attempted possession of a controlled substance for
sale was not included within the enhancement statute; “[a]n
attempt is an offense ‘separate’ and ‘distinct’ from the completed
        10
crime”].)
       The Legislature’s obvious intent to exclude attempted
murder from the ambit of the SB 1437 reform is underscored by
the language of new section 1170.95, the provision it added to the
Penal Code to permit individuals convicted before SB 1437’s
effective date to seek the benefits of the new law from the
sentencing court. Section 1170.95, subdivision (a), authorizes
only those individuals “convicted of felony murder or murder
under a natural and probable consequences theory” to petition for
relief; and the petition must be directed to “the petitioner’s
murder conviction.” Similarly, section 1170.95, subdivision (d)(1),
authorizes the court to hold a hearing to determine whether to
vacate “the murder conviction.”
       The plain language meaning of SB 1437 as excluding any
relief for individuals convicted of attempted murder is fully
supported by its legislative history. (See In re Tobacco II Cases
(2009) 46 Cal.4th 298, 316 [“even though recourse to extrinsic
material is unnecessary given the plain language of the statute,
we may consult it for material that buttresses our construction of


10
       As the Attorney General observes in his supplemental brief
following transfer of the case to us, the Legislature in SB 1437
demonstrated its awareness that a completed crime and an
attempt to commit that crime are distinct offenses, limiting first
degree felony murder liability for “[a] participant in the
perpetration or attempted perpetration of a felony listed in
[section 189,] subdivision (a) in which a death occurs . . . .”
(SB 1437 (Stats. 2018, ch. 1015, § 3, subd. (e)).)



                                22
the statutory language”]; California School Employees Assn. v.
Governing Board (1994) 8 Cal.4th 333, 340 [“Ordinarily, if the
statutory language is clear and unambiguous, there is no need for
judicial construction. [Citation.] Nonetheless, a court may
determine whether the literal meaning of a statute comports with
its purpose”].) When describing the proposed petition process,
the Legislature consistently referred to relief being available to
individuals charged in a complaint, information or indictment
“that allowed the prosecution to proceed under a theory of first
degree felony murder, second degree felony murder, or murder
under the natural and probable consequences doctrine” and who
were “sentenced to first degree or second degree murder.” (E.g.,
Assem. Com. on Public Safety, Rep. on Sen. Bill No. 1437 (2017-
2018 Reg. Sess.) as amended May 25, 2018, p. 1.) In addition,
when discussing the fiscal impact and assessing the likely
number of inmates who may petition for relief, the Senate
Committee on Appropriations considered the prison population
serving a sentence for first and second degree murder and
calculated costs based on that number. (See Sen. Com. on
Appropriations, Rep. on Sen. Bill No. 1437 (2017-2018 Reg. Sess.)
as introduced Feb. 16, 2018, p. 3 (Sen. Com. Appropriations
Report).) The analysis of potential costs did not include inmates
convicted of attempted murder.
      Lopez and Navarrete’s contention that, by redefining the
elements of murder, SB 1437 impliedly eliminated the natural
and probable consequences doctrine as a basis for finding an
aider and abettor guilty of attempted murder is similarly
unavailing. The premise of this implied repeal argument is that,
generally to be guilty of an attempt to commit a crime, the
defendant must have specifically intended to commit all the




                                23
elements of that offense. Since a conviction for murder now
requires proof of malice except as specified in section 189,
subdivision (e), and malice may not be imputed to a person based
solely on his or her participation in an underlying crime, they
reason, the natural and probable consequences theory of aider
and abettor liability is no longer viable.
       Lopez and Navarrete’s premise, that to be guilty of an
attempt an accomplice must have shared the actual perpetrator’s
intent, is correct as to direct aider-and-abettor liability (People v.
McCoy, supra, 25 Cal.4th at p. 1118 [“when the charged offense
and the intended offense—murder or attempted murder—are the
same, . . . the aider and abettor must know and share the
murderous intent of the actual perpetrator”]; see Chiu, supra,
59 Cal.4th at pp. 158, 167), but it is inapplicable to offenses
charged under the natural and probable consequences doctrine,
which is based on a theory of vicarious liability, not actual or
imputed malice (Chiu, at pp. 158, 164). As a matter of statutory
interpretation, SB 1437’s legislative prohibition of vicarious
liability for murder does not, either expressly or impliedly,
require elimination of vicarious liability for attempted murder.
       Citing People v. King (1993) 5 Cal.4th 59 and several court
of appeal decisions, Lopez and Navarrete also argue remedial
legislation should be applied to lesser included offenses and, in
particular, we should construe SB 1437 to extend the benefit
provided to individuals convicted of murder to those convicted of
                    11
attempted murder.        King, however, involved a decidedly

11
      Lopez and Navarrete cite several cases that describe
attempted murder as a lesser included offense of murder, based
at least in part on the timeworn adage that every completed
crime necessarily involves an attempt to commit it. (See, e.g.,


                                   24
different situation in which a series of then-operative provisions
of the Penal Code and the Welfare and Institutions Code,
combined with prior decisions of the Supreme Court, on their face
permitted a person under the age of 18 who had committed first
degree murder and was tried as an adult to be sentenced to the
California Youth Authority (CYA), while the same person who
had attempted but failed to commit the same crime was not
eligible for CYA, but instead was to be sentenced to prison. (Id.
at pp. 62-63.) Recognizing that this result made no sense, and
reviewing the legislative history of the statutory change that
created the anomaly, the Court explained, “The clear legislative
intent to make first degree murderers under the age of 18—and
by extension those who attempt but fail to commit the crime—
eligible for CYA should prevail over any irrational result caused
by the amendment of different statutes in separate codes at
different times for unrelated purposes. ‘[T]he “plain meaning”
rule does not prohibit a court from determining whether the
literal meaning of a statute comports with its purpose or whether
such a construction of one provision is consistent ent with other
provisions of the statute.’” (Id. at p. 69.)



People v. Davidson (2008) 159 Cal.App.4th 205, 210; see generally
People v. Vanderbilt (1926) 199 Cal. 461, 463.) The continued
validity of those statements is by no means apparent given the
Supreme Court’s holding in People v. Bailey (2012) 54 Cal.4th
740, 749, that “[u]nder the elements test, attempt to escape is not
a lesser included offense of escape since it requires additional
proof that the prisoner actually intended to escape.” Similarly,
the crime of attempted murder requires proof of the “specific
intent to kill” (see People v. Lee (2003) 31 Cal.4th 613, 623),
which is not necessarily an element of (implied malice) murder.



                                25
       Here, in contrast, we are not dealing with “amendments of
different statutes in separate codes at different times” leading to
an unintended result, but a single piece of legislation in which
the Legislature unequivocally elected, both in the words it chose
and its statement of purpose, to provide a benefit to one category
of aiders and abettors prosecuted under the natural and probable
consequences doctrine—those facing the lengthiest prison
sentences—and not to others. People v. King, supra, 5 Cal.4th 59,
like Lopez and Navarrete’s other arguments, does not justify a
departure from the plain meaning of SB 1437.
      3. The Legislature’s Decision To Limit the Reform of Aider
         and Abettor Liability Under the Natural and Probable
         Consequences Doctrine to Instances Where the Nontarget
         Offense Is Murder Does Not Violate Equal Protection
      If SB 1437 does not include individuals charged with, or
convicted of, attempted murder under the natural and probable
consequences doctrine, Lopez and Navarrete contend, then the
Legislature’s reform effort violates principles of equal protection
because it is irrationally underinclusive, permitting imposition of
a more severe penalty on an accomplice under the natural and
probable consequences doctrine when the victim of the nontarget
                                                   12
assault survives than when the victim is killed.        As a remedy,

12
      Lopez and Navarrete have urged us to avoid this issue by
applying the canon of constitutional avoidance and interpreting
SB 1437 to prohibit convictions for attempted murder under the
natural and probable consequences doctrine. This well-
established principle of statutory construction, however, “‘is
qualified by the proposition that “avoidance of a difficulty will not
be pressed to the point of disingenuous evasion.”’” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1373; see People v. Buza (2018)
4 Cal.5th 658, 682 [“a statute will be interpreted to avoid serious


                                 26
rather than striking SB 1437’s ameliorative revision of
section 188, they implicitly propose we rewrite the legislation to
expand its scope, a rarely used but nonetheless permissible
judicial tool. (See, e.g., Kopp v. Fair Pol. Practices Com. (1995)
11 Cal.4th 607, 641 [“it is appropriate in some situations for
courts to reform—i.e., ‘rewrite’—enactments in order to avoid
constitutional infirmity, when doing so ‘is more consistent with
legislative intent than the result that would attend outright
invalidation.’ . . .[L]ike the high court, we have reformed statutes
to preserve their constitutionality in cases concerning
classification otherwise invalid under the equal protection
clause”].)
       Both the federal and California Constitutions guarantee
that no person shall be “den[ied] . . . the equal protection of the
laws.” (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7.) Equal
protection of the laws simply means that similarly situated
persons shall be treated in like manner unless there is a
sufficiently good reason to treat them differently. (People v.
Morales (2016) 63 Cal.4th 399, 408; Engquist v. Oregon Dept. of


constitutional questions if such an interpretation is fairly
possible”]; People v Garcia (2017) 2 Cal.5th 792, 815 [“The canon
of constitutional avoidance is a tool of statutory interpretation
that permits us to select between competing plausible
interpretations of statutory text. It does not permit us to ‘“‘do[]
violence to the reasonable meaning of the language used’”’
[citation], nor does it provide ‘a method of adjudicating
constitutional questions by other means’ [citation]”].) As
discussed, the language of SB 1437 is unambiguous on this point
and is not susceptible of the reading suggested by Lopez and
Navarrete. Accordingly, we must directly confront the
constitutional question they pose.



                                 27
Agriculture (2008) 553 U.S. 591, 602 [128 S.Ct. 2146, 170 L.Ed.2d
975]; see People v. Chatman (2018) 4 Cal.5th 277, 289 [“our
precedent has not distinguished the state and federal guarantees
of equal protection for claims arising from allegedly unequal
consequences with different types of criminal offenses”]; Johnson
v. Department of Justice (2015) 60 Cal.4th 871, 881 [federal and
state equal protection guarantees have similar interpretation].)
       The first step in evaluating any equal protection claim is
determining whether there are two groups of individuals who are
“‘“similarly situated with respect to the legitimate purpose of the
law”’” but are being treated differently. (People v. Barrett (2012)
54 Cal.4th 1081, 1107; accord, Cooley v. Superior Court (2002)
29 Cal.4th 228, 253 [to prevail on an equal protection challenge, a
party must first establish that “‘the state has adopted a
classification that affects two or more similarly situated groups in
an unequal manner’”]; People v. Castel (2017) 12 Cal.App.5th
1321, 1326.) If the two groups are not similarly situated or are
not being treated differently, then there can be no equal
protection violation.
       If such a classification of similarly situated individuals
exists, a court must next ascertain whether the Legislature has a
constitutionally sufficient reason to treat the groups differently.
(People v. Chatman, supra, 4 Cal.5th at p. 288; In re Marriage
Cases (2008) 43 Cal.4th 757, 831.) Unless the groups are defined
by word or effect as members of a “suspect classification” (such as
race, national origin or gender) or the law affects a fundamental
right (such as the right to vote or the right to marry), a law will
be upheld as long as there is any “rational relationship between
the disparity of treatment and some legitimate governmental
purpose.” (Chatman, at pp. 288-289; Johnson v. Department of




                                 28
Justice, supra, 60 Cal.4th at p. 881.) “‘This standard of
rationality does not depend upon whether lawmakers ever
actually articulated the purpose they sought to achieve. Nor
must the underlying rationale be empirically substantiated.
[Citation.] While the realities of the subject matter cannot be
completely ignored [citation], a court may engage in “‘rational
speculation’” as to the justifications for the legislative choice
[citation]. It is immaterial for rational basis review “whether or
not” any such speculation has “a foundation in the record.”’ . . . If
a plausible basis exists for the disparity, courts may not second-
guess its ‘“wisdom, fairness, or logic.”’” (Johnson, at p. 881; see
Warden v. State Bar (1999) 21 Cal.4th 628, 644 [when the
challenged statutory classification of similarly situated
individuals “neither proceeds along suspect lines nor infringes
fundamental constitutional rights,” it “must be upheld against
[an] equal protection challenge if there is any reasonably
conceivable state of facts that could provide a rational basis for
the classification”].)
       Lopez and Navarrete’s equal protection argument fails each
of these two necessary steps in the constitutional analysis.
          a. Individuals convicted of murder and those convicted
             of attempted murder under the natural and probable
             consequences doctrine are not similarly situated
      The first inquiry in an equal protection analysis “is not
whether persons are similarly situated for all purposes, but
‘whether they are similarly situated for purposes of the law
challenged.’” (Cooley v. Superior Court, supra, 29 Cal.4th at
p. 253; accord, People v. Valencia (2017) 3 Cal.5th 347, 376.)
“Where two or more groups are properly distinguishable for
purposes of the challenged law, it is immaterial if they are




                                 29
indistinguishable in other respects.” (People v. Barrett, supra,
54 Cal.4th at p. 1107.)
       The aim of SB 1437, as clearly articulated in the
Legislature’s findings and declarations, is to effect “statutory
changes to more equitably sentence offenders in accordance with
their involvement in homicides.” (Stats. 2018, ch. 1015, § 1,
subd. (b).) The legitimacy of that legislative goal cannot seriously
be questioned. For purposes of that appropriate legislative
objective, those charged with, or found guilty of, murder are, by
definition, not similarly situated with individuals who face other,
less serious charges.
       This distinction is not merely a matter of semantics:
Murder and attempted murder are separate crimes. (See People
v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“[i]t is well established
that ‘“[a]n attempt is an offense ‘separate’ and ‘distinct’ from the
completed crime”’”]; People v. Lewis (2006) 146 Cal.App.4th 294,
298 [same]; People v. Reed, supra, 129 Cal.App.4th at p. 1283
[same].) And murder is punished more severely than attempted
murder. (Compare § 190, subd. (a) [penalty for first and second
degree murder] with § 664 [penalty for attempted murder and
attempted willful, deliberate and premeditated murder].) These
different penal consequences necessarily mean, for purposes of
sentencing reform, an individual charged with, or convicted of,
murder under the natural and probable consequences doctrine is
not similarly situated to an individual confronting a charge of
attempted murder (or, possibly, only aggravated assault) under
the doctrine. (Cf. People v. Valencia, supra, 3 Cal.5th at pp. 375-
376 [individuals eligible for resentencing under Proposition 47
and Proposition 36 are not similarly situated; the two
propositions operate with respect to “very different populations of




                                 30
offenders”].) The Legislature is permitted to treat these two
groups of criminals differently.
         b. The Legislature’s limitation of SB 1437 to
            individuals convicted of murder under the natural
            and probable consequences doctrine is subject to
            rational basis review
      Personal liberty is a fundamental interest for purposes of
equal protection analysis. (People v. Olivas (1976) 17 Cal.3d 236,
251 [“personal liberty is an interest which is entitled to the same
protection as other fundamental interests”]; see In re Hop (1981)
29 Cal.3d 82, 89.) However, as the Supreme Court explained in
People v. Wilkinson (2004) 33 Cal.4th 821 (Wilkinson), in which it
applied rational basis review to uphold a statutory scheme
permitting a defendant to be charged with violating section 243.1,
which makes it a felony to commit battery on a custodial officer
in the performance of his or her duties, while under section 243,
subdivision (c)(1), the crime of battery on a custodial officer
causing injury may be charged as either a misdemeanor or a
felony: “The language in Olivas could be interpreted to require
application of the strict scrutiny standard whenever one
challenges upon equal protection grounds a penal statute or
statutes that authorize different sentences for comparable
crimes, because such statutes always implicate the right to
‘personal liberty’ of the affected individuals. Nevertheless, Olivas
properly has not been read so broadly. . . . ‘California courts have
never accepted the general proposition that “all criminal laws,
because they may result in a defendant’s incarceration, are
perforce subject to strict judicial scrutiny.”’” (Wilkinson, at
p. 838; see People v. Bell (1996) 45 Cal.App.4th 1030, 1049 [a
broad reading of Olivas would “intrude[] too heavily on the police
power and the Legislature’s prerogative to set criminal justice


                                31
policy”]; People v. Mitchell (1994) 30 Cal.App.4th 783, 796
[“[d]etermining gradations of culpability . . . does not implicate
the strict scrutiny test for equal protection purposes”]; see also
People v. Silva (1994) 27 Cal.App.4th 1160, 1167.)
       Thus, in Wilkinson, supra, 33 Cal.4th at page 838 the
Supreme Court held a defendant “‘does not have a fundamental
interest in a specific term of imprisonment or in the designation a
particular crime receives.’” (Accord, People v. K.P. (2018)
30 Cal.App.5th 331, 343 [rejecting argument strict scrutiny
review must be applied to constitutional challenge to exclusion of
individuals found not guilty by reason of insanity from
ameliorative provisions of legislation making imposition of
formerly mandatory firearm-use enhancements discretionary;
“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”]; see People v. Ward (2008)
167 Cal.App.4th 252, 258 [applying rational basis review to a
constitutional change to statutes imposing different penalties for
possession for sale of cocaine base and cocaine powder].) As in
Wilkinson and K.P., the issue here is one of the Legislature’s
power to define crimes and fix penalties. We, therefore, apply
rational basis review to determine whether the Legislature’s
limitation of the ameliorative provisions of SB 1437 was justified.
         c. A plausible basis exists for the Legislature’s decision
            to provide relief only to accomplices convicted of
            murder under the natural and probable consequences
            doctrine
       A fundamental principle of rational-basis equal protection
review, articulated by both the United States and California
Supreme Courts, is “the propriety of a legislature’s taking reform
‘“one step at a time, addressing itself to the phase of the problem


                                32
which seems most acute to the legislative mind.”’” (Kasler v.
Lockyer (2000) 23 Cal.4th 472, 488; accord, Warden v. State Bar,
supra, 21 Cal.4th at p. 644 [“under the rational relationship test,
the state may recognize that different categories or classes of
persons within a larger classification may pose varying degrees of
risk of harm, and properly may limit a regulation to those classes
of persons as to whom the need for regulation is thought to be
more crucial or imperative”]; see Williamson v. Lee Optical Co.
(1955) 348 U.S. 483, 489 [75 S.Ct. 461, 99 L.Ed. 563] [“Evils in
the same field may be of different dimensions and proportions,
requiring different remedies. Or so the legislature may think”];
see also Bowen v. Owens (1986) 476 U.S. 340, 348 [106 S.Ct.
1881, 90 L.Ed.2d 316] [Congress may chose to proceed cautiously,
rather than taking an all-or-nothing approach to addressing a
complex problem].)
       There may well be sound policy reasons for the Legislature
to adopt ameliorative provisions like those in SB 1437 for
individuals charged with, or convicted of, attempted murder
under the natural and probable consequences doctrine. But the
Legislature’s decision to limit sentencing reform at this time to
offenders in cases of murder is certainly rational. First, the gap
between a defendant’s culpability in aiding and abetting the
target offense and the culpability ordinarily required to convict
on the nontarget offense is greater in cases where the nontarget
offense is murder, than where the nontarget offense is attempted
murder or, in the prosecutor’s discretion, aggravated assault.
The Legislature could have reasonably concluded reform in
murder cases “was more crucial or imperative.” (See Wilkinson,
supra, 33 Cal.4th at p. 840 [“[t]he Legislature is responsible for




                                33
determining which class of crimes deserves certain punishments
and which crimes should be distinguished from others”].)
       Second, the process created in section 1170.95 for those
convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to
vacate that conviction and to be resentenced is not cost-free. The
staff of the Senate Appropriations Committee estimated, if
10 percent of the inmates eligible for relief under SB 1437
petitioned the courts for resentencing, additional court workload
                                      13
costs would approximate $7.6 million. The Committee’s report
expressed concern that this increase in workload “could result in
delayed court services and would put pressure on the General
Fund to fund additional staff and resources.” (Sen. Com.
Appropriations Report, p. 3.) Additional expenditures would also
be required to transport petitioners in custody to and from court
hearings. (Ibid.)
       In a world of limited resources, it is reasonable for the
Legislature to limit the scope of reform measures to maintain the
state’s financial integrity. (See People v. Chatman, supra,
4 Cal.5th at p. 290 [“[p]reserving the government’s financial
integrity and resources is a legitimate state interest”]; see also
American Bank & Trust Co. v. Community Hospital (1984)
36 Cal.3d 359, 374 [Legislature has broad leeway in making
economic line-drawing determinations]; People v. Cruz (2012)

13
      In reaching this conclusion the committee staff assumed it
would take the superior court an average of four hours to
adjudicate a petition from receipt to final order. (Sen. Com.
Appropriations Report, p. 3.) Additional judicial branch costs
that would be incurred if the superior court’s decision was
appealed were not considered.



                                34
207 Cal.App.4th 664, 679 [prospective application of 2011
realignment legislation was “necessary so as not to overwhelm
trial court resources by requiring the resentencing of numerous
inmates,” a legitimate state interest].)
       In sum, the distinction drawn by SB 1437 between
individuals charged with, or convicted of, murder and attempted
murder under the natural and probable consequences doctrine
does not violate equal protection.
      4. Whether Lopez’s and Navarrete’s Convictions for Murder
         Are Properly Vacated Must Be Determined in the First
         Instance by the Sentencing Court
      We have considered the effect of SB 1437 on Lopez’s and
Navarrete’s convictions for murder and attempted premeditated
murder because the Supreme Court instructed us to do so when it
transferred the cause to us pursuant to California Rules of Court,
rule 8.528. However, whether Lopez and Navarrete are actually
entitled to the benefits of SB 1437 (that is, to have their
convictions for murder vacated and to be resentenced on the
remaining offenses) must be considered in the first instance by
the trial court, following remand, pursuant to the procedures
created by section 1170.95, not on direct appeal. (People v.
Anthony, supra, 32 Cal.App.5th at p. 152; People v Martinez
(2019) 31 Cal.App.5th 719, 727 (Martinez).)
         a. The Estrada rule does not apply when the Legislature
            has not remained silent on the question of
            retroactivity
      As thoroughly and persuasively analyzed by our colleagues
in Division Five of this court in Martinez, supra, 31 Cal.App.5th
719, the question of our ability to implement SB 1437 on direct
appeal from nonfinal convictions obtained prior to the effective
date of the legislation is analytically indistinguishable from the


                                35
comparable issue under Proposition 36 (the Three Strikes Reform
Act of 2012), considered by the Supreme Court in People v. Conley
(2016) 63 Cal.4th 646, and Proposition 47 (the Safe
Neighborhoods and Schools Act), addressed in People v. DeHoyos
(2018) 4 Cal.5th 594. In Conley the Court explained that the rule
of In re Estrada (1965) 63 Cal.2d 740, which presumes that newly
enacted legislation lessening a criminal punishment is intended
to apply to all cases not yet reduced to final judgment on the
statute’s effective date, “rests on an inference that, in the absence
of contrary indications, a legislative body ordinarily intends 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.” (Conley, at p. 657.)
However, when the enacting body creates a specific mechanism
for retroactive application of the new lesser punishment to
individuals who have previously been sentenced, as was true
with both Proposition 36 and Proposition 47, the Estrada
presumption does not automatically apply. (Conley, at p. 658; see
DeHoyos, at p. 602.) Accordingly, after analyzing the special
statutory remedies created by Proposition 36 and Proposition 47
for defendants to use to seek resentencing based on the changes
in the law, the Court in Conley and DeHoyos held those
procedures were exclusive; relief was not available on direct
appeal. (Conley, at pp. 652, 661-662; DeHoyos, at p. 603.)
       As was true with Proposition 36 and Proposition 47,
SB 1437 is not silent on the question of retroactivity. Rather, like
the two propositions, SB 1437 provides specific retroactivity rules
in section 1170.95, which require a determination of the
defendant’s entitlement to relief to be made by the sentencing
court. (Martinez, supra, 31 Cal.App.5th at p. 727.) “The




                                 36
petitioning procedure specified in that section applies to persons
who have been convicted of felony murder or murder under a
natural and probable consequences theory. It creates a special
mechanism that allows those persons to file a petition in the
sentencing court seeking vacatur of their conviction and
resentencing. In doing so, section 1170.95 does not distinguish
between persons whose sentences are final and those whose
sentences are not. That the Legislature specifically created this
mechanism, which facially applies to both final and nonfinal
convictions, is a significant indication Senate Bill 1437 should not
be applied retroactively to nonfinal convictions on direct appeal.”
(Ibid.; accord, People v. Anthony, supra, 32 Cal.App.5th at
p. 1152.)
       The similarities between the postconviction procedures
provided in Propositions 36 and 47 and those in section 1170.95
include the authority of the trial court, upon the requisite
evidentiary showing, to deny relief to the defendant. In the case
of Proposition 36 and Proposition 47, a factual finding the
defendant poses an unreasonable risk of danger to public safety
disentitles him or her to relief. (See §§ 1170.18, subd. (b),
1170.126, subd. (f).) Under section 1170.95 relief must be denied
if the People establish, either based on the record of conviction or
through new or additional evidence, that the defendant
personally acted with malice. (§ 1170.95, subd. (d)(3).)
“Providing the parties with the opportunity to go beyond the
original record in the petition process, a step unavailable on
direct appeal, is strong evidence the Legislature intended for
persons seeking the ameliorative benefits of [SB 1437] to proceed
via the petitioning process.” (Martinez, supra, 31 Cal.App.5th at
p. 728.)




                                 37
          b. Requiring defendants to seek relief pursuant to
             section 1170.95 does not deprive them of their right to
             a jury trial
       Requiring Lopez and Navarrete to pursue relief in the trial
court pursuant to section 1170.95, where the trial court can
determine they remain liable for murder if the People establish
beyond a reasonable doubt they personally acted with malice,
does not, as they contend, deprive them of their constitutional
right to a jury trial under Apprendi v. New Jersey (2000) 530 U.S.
466 [120 S.Ct. 2348, 147 L.Ed.2d 435] and Alleyne v United
                                                               14
States (2013) 570 U.S. 99 [133 S.Ct. 2151, 186 L.Ed.2d 314]:
“[T]he retroactive relief they are afforded by Senate Bill 1437 is
not subject to Sixth Amendment analysis. Rather, the
Legislature’s changes constituted an act of lenity that does not
implicate defendants’ Sixth Amendment rights.” (People v.
Anthony, supra, 32 Cal.App.5th at pp. 1156-1157; see People v.
Perez (2018) 4 Cal.5th 1055, 1063-1064 [trial court may
determine facts based on new evidence regarding the petitioner’s
eligibility for resentencing under Proposition 36 because
retroactive application of the benefits from the proposition are a
legislative act of lenity that does not implicate Sixth Amendment
rights; “a factual finding that results in resentencing ineligibility


14
      The Supreme Court in Apprendi v. New Jersey, supra,
530 U.S. at page 490, held any fact other than a prior conviction
that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a
reasonable doubt. In Alleyne v. United States, supra, 570 U.S. at
page 108, it held any fact that increases the mandatory minimum
penalty for a crime also must be submitted to a jury and proved
beyond a reasonable doubt.



                                 38
does not increase the petitioner’s sentence; it simply leaves the
original sentence intact”].)
         c. Requiring defendants to seek relief pursuant to
            section 1170.95 does not violate section 654
      Relying on language in section 654, subdivision (a), that
“[a]n acquittal or conviction and sentence under any one
[provision of law] bars a prosecution for the same act or omission
under any other,” Lopez and Navarrete argue the People should
not be given the opportunity to prove their liability for murder
under a direct aiding and abetting theory in a section 1170.95
proceeding after they were tried and convicted of murder solely
under the now legally untenable natural and probable
consequences doctrine. In support of their contention Lopez and
Navarrete quote Kellett v. Superior Court (1966) 63 Cal.2d 822,
827 (Kellett), which held, when “the prosecution is or should be
aware of more than one offense in which the same act or course of
conduct plays a significant part, all such offenses must be
prosecuted in a single proceeding unless joinder is prohibited or
severance permitted for good cause. Failure to unite all such
offenses will result in a bar to subsequent prosecution of any
offense omitted if the initial proceedings culminate in either
acquittal or conviction and sentence.” (See also People v. Goolsby
(2015) 62 Cal.4th 360, 362.)
      In Kellett, however, the Supreme Court was concerned with
a new prosecution for an offense, based on the same act or
conduct as an earlier prosecution, that was not previously
considered by the jury (see Kellett, supra, 63 Cal.2d at pp. 826-
827), not with the viability of alternative theories for the same
substantive offense. Where, as here, a conviction is not reversed
on appeal for insufficient evidence but because of a retroactive



                                 39
change in the law, neither section 654 nor constitutional
prohibitions against double jeopardy prevent a retrial. (See Chiu,
supra, 59 Cal.4th at p. 168 [allowing the People to retry charge of
first degree murder on a direct aiding and abetting theory when
jury may have improperly based prior verdict on natural and
probable consequences doctrine]; see also People v. Gutierrez
(2018) 20 Cal.App.5th 847, 857 [permitting new trial on charge of
unauthorized taking of an automobile when evidence of value of
automobile not introduced at original trial and Supreme Court
had not yet ruled on Proposition 47’s applicability to Vehicle Code
section 10851]; People v. Figueroa (1993) 20 Cal.App.4th 65, 71-
72, fn. 2 [permitting new trial where statutory amendments
added new element to offense after original trial].)
       In any event, a remand to permit Lopez and Navarrete to
petition for relief under section 1170.95 involves a resentencing
procedure, not a new prosecution. Section 654 and the cases
interpreting it are simply inapplicable in this context.
      5. The Trial Court Properly Instructed the Jury That Lopez
         and Navarrete Could Be Convicted of Attempted
         Premeditated Murder Under the Natural and Probable
                               15
         Consequences Doctrine
     The People’s theory of the case was that Lopez, Navarrete
and Martinez conspired to commit vandalism and that Ordonez’s
murder and the attempted murder of Baquiax were the natural
and probable consequences of that conspiracy, making Lopez and

15
      Because Lopez’s and Navarrete’s convictions for second
degree murder under the natural and probable consequences
doctrine are no longer legally viable, we limit our consideration of
the issues originally raised on appeal to their challenges to the
remaining charges and sentencing enhancements.



                                 40
Navarrete liable for Martinez’s commission of the more serious
crimes.
       The trial court instructed the jury pursuant to CALCRIM
No. 416 on the elements of conspiracy to commit vandalism and
for determining whether Lopez and Navarrete were members of
the conspiracy. The trial court then instructed pursuant to
CALCRIM No. 417 on liability for coconspirators’ acts under the
natural and probable consequences doctrine: “A member of a
conspiracy is criminally responsible for the crimes that he or she
conspires to commit, no matter which member of the conspiracy
commits the crime. [¶] A member of a conspiracy is also
criminally responsible for any act of any member of the
conspiracy if that act is done to further the conspiracy and that
act is a natural and probable consequence of the common plan or
design of the conspiracy. This rule applies even if the act was not
intended as part of the original plan. Under this rule, a
defendant who is a member of the conspiracy does not need to be
present at the time of the act.
       “A natural and probable consequence is one that a
reasonable person in the defendant’s position would have or
should have known was likely to happen if nothing unusual
intervened. In deciding whether a consequence is natural and
probable, consider all of the circumstances established by the
evidence.
       “A member of a conspiracy is not criminally responsible for
the act of another member if that act does not further the
common plan or is not a natural and probable consequence of the
common plan.
       [¶] . . . [¶]




                                41
       “The defendant is not responsible for the acts of another
person who was not a member of the conspiracy even if the acts of
the other person helped accomplish the goal of the conspiracy. [¶]
A conspiracy member is not responsible for the acts of other
conspiracy members that are done after the goal of the conspiracy
had been accomplished.”
       Navarrete and Lopez contend the trial court erred in giving
this instruction “because our courts have determined that a
coconspirator is not criminally liable for the crimes committed by
another coconspirator when the connection between the
conspirator’s conduct and the perpetrator’s conduct and mental
state [is] too attenuated; when there are severe penalty
differences between the intended target crime (in this case, the
general intent crime of misdemeanor vandalism) and the
unintended crimes (in this case, the specific intent crimes of
murder and attempted murder); and because of the rationale
underlying the natural and probable consequences doctrine.”
None of their claims has merit.
           a. Attenuation of connection between a coconspirator’s
              and the perpetrator’s premeditative mental state
       As mandated by Chiu, supra, 59 Cal.4th 155, the trial court
in this case properly instructed the jury, if it found Ordonez’s
murder was a natural and probable consequence of the charged
conspiracy to commit vandalism, Lopez and Navarrete would be
liable for second degree murder only. By parity of reasoning,
Lopez and Navarrete contend, it was error to instruct the jury
they could be found guilty of attempted premeditated murder
under the natural and probable consequences doctrine because
an aider and abettor’s or coconspirator’s culpability and the
connection between the premeditative mental state of the




                                42
perpetrator are as attenuated in an attempted premeditated
murder case as in the case of first degree premeditated murder
considered in Chiu.
       We acknowledge the logic of this argument. Attempted
premeditated murder, like attempted murder, requires a direct
but ineffective step toward killing another person with the
specific intent to kill that person (CALCRIM No. 600), but has
the additional elements of willfulness, premeditation and
deliberation that, as with murder itself, trigger a heightened
penalty. Nonetheless, in People v. Favor (2012) 54 Cal.4th 868,
the Supreme Court held, “Under the natural and probable
consequences doctrine, there is no requirement that an aider and
abettor reasonably foresee an attempted premeditated murder as
the natural and probable consequence of the target offense. It is
sufficient that attempted murder is a reasonably foreseeable
consequence of the crime aided and abetted, and the attempted
murder itself was committed willfully, deliberately and with
premeditation.” (Id. at p. 880.) In Chiu the Supreme Court did
not question the continued viability of Favor, and instead simply
distinguished it. (Chiu, supra, 59 Cal.4th at p. 163.) We are
bound by the holding in Favor. (People v. Johnson (2012)
                            16
53 Cal.4th 519, 527-528.)


16
      In People v. Mateo, supra, S232674, the Supreme Court had
indicated its intention to reconsider the continued viability of
Favor in light of its decision in Chiu and the United States
Supreme Court’s decision in Alleyne v. United States, supra,
570 U.S. 99. However, the Court transferred Mateo to the court
of appeal in March 2019 with instructions to vacate its prior
opinion and consider the effect, if any, of SB 1437 on the case.
Favor thus remains binding authority.



                                 43
         b. The discrepancy between the penalties for the target
            and nontarget offenses
       Lopez and Navarrete also contend it was error to utilize the
natural and probable consequences doctrine in this case because
of the severe penalty differences between misdemeanor
vandalism, the object of the alleged conspiracy, on the one hand,
and attempted premeditated murder, on the other hand.
Although the Supreme Court in Chiu, when discussing the
attenuated nature of the connection between the aider and
abettor’s culpability and the perpetrator’s premeditative state,
referred to “the severe penalty” for first degree premeditated
murder (Chiu, supra, 59 Cal.4th at p. 166), the Court did not
suggest that disparity in penalties was a basis for not applying
the natural and probable consequences doctrine.
       To be sure, the court of appeal in People v. Montes (1999)
74 Cal.App.4th 1050, evaluating the defendant’s challenge to an
instruction he could be convicted of attempted murder on a
natural and probable consequence theory for aiding and abetting
simple assault or breach of the peace for fighting in public,
conceded “it is rarely, if ever, true that ‘an aider and abettor can
“become liable for the commission of a very serious crime”
committed by the aider and abettor’s confederate [where] “the
target offense contemplated by his aiding and abetting [was]
trivial.”’ [Citation.] ‘Murder, for instance, is not the natural and
probable consequence of trivial activities. To trigger application
of the “natural and probable consequences” doctrine, there must
be a close connection between the target crime aided and abetted
and the offense actually committed.’” (Id. at p. 1055.) On the
record before it, however, the Montes court concluded the target
offenses of simple assault and breach of the peace for fighting in




                                 44
public were not trivial. “They arose in the context of an ongoing
rivalry between [criminal street gangs] during which the two
gangs acted violently toward each other.” (Ibid.) The gang
expert explained that “these facts represent a textbook example
of how a gang confrontation can easily escalate from mere
shouting and shoving to gunfire. [The court concluded t]here can
be little question that the target offenses of assault and breach of
the peace were closely connected to the shooting.” (Ibid.)
       This case is similar. While misdemeanor vandalism, in and
of itself, may be relatively trivial, the jury could reasonably
conclude under the circumstances of this case it was not. Lopez,
Navarrete and Martinez went into rival gang territory to spray
graffiti, including markings that disparaged and disrespected the
rival gang. Officer Hernandez testified not only that infiltrating
another gang’s territory is an aggressive sign of disrespect but
also that gang members engaged in that activity could expect
rival gang members to react with violence. For this reason,
Officer Hernandez explained, a gang member putting up graffiti
in rival territory would go with a group, which might include a
getaway driver and a shooter in case there was a violent
confrontation. Based on that testimony, misdemeanor vandalism
could properly be seen as a target crime that would naturally,
probably and foreseeably result in a murder. (See Chiu, supra,
59 Cal.4th at p. 166.)
      6. Substantial Evidence Supports the Finding That the
         Attempted Murder of Baquiax Was the Natural and
         Probable Consequence of the Conspiracy To Commit
         Vandalism
      In evaluating Lopez and Navarrete’s contention the
evidence is insufficient to support their convictions for attempted




                                 45
murder under the natural and probable consequences doctrine,
“we review the record ‘in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 713.) In applying this test, we
“presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.
[Citation.] ‘Conflicts and even testimony [that] is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for
substantial evidence. [Citation.]’ [Citation.] A reversal for
insufficient evidence ‘is unwarranted unless it appears “that
upon no hypothesis whatever is there sufficient substantial
evidence to support”’ the jury’s verdict.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357; accord, People v. Penunuri (2018)
5 Cal.5th 126, 142.) “‘Where the circumstances reasonably justify
the trier of fact’s findings, a reviewing court’s conclusion the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant the judgment’s reversal.’”
(People v. Clark (2016) 63 Cal.4th 522, 626; accord, People v.
Ghobrial (2018) 5 Cal.5th 250, 277.)
        In support of their contention there was insufficient
evidence to support the finding the attempted premeditated
murder of Baquiax was a natural and probable consequence of
conspiracy to commit misdemeanor vandalism, Lopez and




                                 46
Navarrete principally rely on People v. Leon (2008)
161 Cal.App.4th 149. In that case Leon and a second gang
member had been breaking into vehicles in the parking lot of an
apartment complex when the brother of a car owner saw them
and said he was going to call the police. The second gang
member looked at him and fired a gun into the air. (Id. at
pp. 153-154.) Leon was convicted of burglary, possession of a
concealed weapon and, on an aiding and abetting theory, witness
intimidation. (Id. at pp. 155-156.) On appeal he argued there
was insufficient evidence to support his conviction of witness
intimidation under the natural and probable consequences
doctrine. (Id. at pp. 159-160.)
       The court of appeal reversed the conviction for witness
intimidation. Explaining its decision, the court observed, “Cases
involving the natural and probable consequences doctrine
frequently ‘involve[] situations in which a defendant assisted or
encouraged a confederate to commit an assault with a deadly
weapon or with potentially deadly force, and the confederate not
only assaulted but also murdered the victim.’” (People v. Leon,
supra, 161 Cal.App.4th at p. 160.) Courts have also “‘applied the
“natural and probable consequences” doctrine in situations where
a defendant assisted in the commission of an armed robbery,
during which a confederate assaulted or tried to kill one of the
robbery victims.’” (Ibid.) But in no published decision, the court
continued, had the crime of witness intimidation been found to be
the natural and probable consequence of vehicle burglary or
illegal possession of a weapon. “There is not ‘a close connection’
between any of the target crimes [the defendant] aided and
abetted, and [the perpetrator’s] commission of witness
intimidation.” (Id. at p. 161.) Even though the crimes were




                                47
gang-related and were committed in a rival gang’s territory,
which increased the possibility that violence would occur, the
court concluded “witness intimidation cannot be deemed a
natural and probable consequence of any of the target offenses.”
(Ibid.)
       Analogizing the facts in the case at bar to those in Leon,
Lopez and Navarrete contend Martinez’s shooting of the church
volunteers was not only unforeseeable in the abstract, but also
unforeseeable as a practical matter because it was unnecessary
and entirely unexpected. Lopez and Navarrete’s argument
ignores the significant fact that Leon was not convicted of a crime
of violence—aggravated assault or attempted murder—based on
the second gang member’s discharge of a firearm during the
vehicle burglaries; he was convicted of witness intimidation.
(People v. Leon, supra, 161 Cal.App.4th at p. 157; see § 136.1.)
That nontarget offense did not simply require proof of a
foreseeable violent response to a confrontation over gang activity,
but rather the anticipation that, if a bystander threatened to
report the crime, the second gang member would attempt to
prevent him from doing so—a more complex series of events.
       Here, as discussed, Lopez, Navarrete and Martinez went
into rival gang territory to spray graffiti, including markings
mocking the rival gang. Officer Hernandez, the gang expert,
testified infiltrating another gang’s territory is an aggressive sign
of disrespect and the graffiti crew would expect rival gang
members to react to the intrusion with violence. For that reason,
a gang member putting up graffiti in rival territory would likely
go with a group that included, as here, a getaway driver and a
shooter in case there was a confrontation. Based on this
testimony and the evidence of Martinez’s and Navarrete’s actions




                                 48
after Acosta confronted Lopez, and Ordonez and Baquiax
appeared on the scene, the jury could reasonably find that Lopez
and Navarrete each should have foreseen the possibility that
someone would attempt to stop Lopez from putting up graffiti
and the vandalism conspirators (including Martinez) were
prepared to react to such interference with force. That the threat
to Lopez actually came from church volunteers, not rival gang
members, does not make the shooting any less foreseeable.
Lopez, Navarrete and Martinez were prepared for opposition to
the vandalism; when it materialized, they reacted in a reasonably
foreseeable manner.
      7. The Instruction on the Kill Zone Theory of Attempted
         Murder Was Harmless Error
         a. The court’s duty to instruct only on theories
            supported by substantial evidence
      The trial court has the duty to instruct the jury “‘on the
general principles of law relevant to the issues raised by the
evidence.’” (People v. Smith (2013) 57 Cal.4th 232, 239.) The
court “‘has the correlative duty “to refrain from instructing on
principles of law which not only are irrelevant to the issues
raised by the evidence but also have the effect of confusing the
jury or relieving it from making findings on relevant issues.”’”
(People v. Alexander (2010) 49 Cal.4th 846, 920.)
      When a jury has been instructed on a factual theory
unsupported by substantial evidence, the error is one of state law
“subject to the reasonable probability standard of harmless error
under People v. Watson (1956) 46 Cal.2d 818, 836-836 . . . .”
(People v. Whisenhunt (2008) 44 Cal.4th 174, 214.) That is,
reversal is not required “unless a review of the entire record
affirmatively demonstrates a reasonable probability that the jury



                                49
in fact found the defendant guilty solely on the unsupported
theory.” (People v. Guiton (1993) 4 Cal.4th 1116, 1130; accord,
People v. McCloud (2012) 211 Cal.App.4th 788, 803-804.)
         b. The kill zone theory of attempted murder
      “‘Attempted murder requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.’” (People v. Sánchez (2016)
63 Cal.4th 411, 457; accord, People v. Canizales (2019) 7 Cal.5th
591, 602 (Canizales).) As the Supreme Court explained in People
v. Bland (2002) 28 Cal.4th 313, 328, “Someone who in truth does
not intend to kill a person is not guilty of that person’s attempted
murder even if the crime would have been murder—due to
transferred intent—if the person were killed. To be guilty of
attempted murder, the defendant must intend to kill the alleged
victim, not someone else.” Under limited circumstances,
however, a defendant who targets a specific person by firing
indiscriminately at a crowd may be convicted of attempted
murder if the evidence shows he or she intended to kill everyone
in the targeted victim’s vicinity in order to strike the original
intended victim. (Id. at p. 330 [“[w]here the means employed to
commit the crime against a primary victim create a zone of harm
around that victim, the factfinder can reasonably infer that the
defendant intended that harm to all who are in the anticipated
zone”].) The Supreme Court recently cautioned that trial courts
“must be extremely careful in determining when to permit the
jury to rely upon the kill zone theory.” (Canizales, at p. 597.)
“[T]he kill zone theory for establishing the specific intent to kill
required for conviction of attempted murder may properly be
applied only when a jury concludes: (1) the circumstances of the
defendant’s attack on a primary target, including the type and



                                 50
extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s
death—around the primary target; and (2) the alleged attempted
murder victim who was not the primary target was located in the
zone of harm. Taken together, such evidence will support a
finding that the defendant harbored the requisite specific intent
to kill both the primary target and everyone within the zone of
fatal harm.” (Id. at p. 607.)
       Here, the trial court instructed the jury pursuant to
CALCRIM No. 600: “The defendants are charged in Count Two
with Attempted Murder. [¶] To prove that the defendant is
guilty of attempted murder, the People must prove that: [¶]
1. The defendant took at least one direct but ineffective step
toward killing another person; [¶] AND [¶] 2. The defendant
intended to kill that person. [¶] . . . [¶] A person may intend to
kill a specific victim or victims and at the same time intend to kill
everyone in a particular zone of harm or ‘kill zone.’ In order to
convict the defendant of the attempted murder of Santos
Baquiax, the People must prove that the defendant not only
intended to kill Andres Ordonez, but also either intended to kill
Santos Baquiax or everyone within the kill zone. If you have a
reasonable doubt whether the defendant intended to kill Santos
Baquiax by killing everyone in the kill zone, then you must find
the defendant not guilty of the attempted murder of Santos
Baquiax.” Lopez and Navarrete contend it was error to give this




                                 51
instruction because it included the kill zone theory, which was
                                       17
not supported by substantial evidence.
       The court, however, also instructed the jury pursuant to
CALCRIM No. 200 that “[s]ome of these instructions may not
apply, depending on your findings about the facts of the case. Do
not assume just because I give a particular instruction that I am
suggesting anything about the facts. After you have decided
what the facts are, follow the instructions that do apply to the
facts as you find them.”
          c. The court’s erroneous instruction did not prejudice
             Lopez or Navarrete
       The evidence at trial established that, as Baquiax and
Ordonez first appeared and approached Lopez and Acosta, Lopez
ran to the waiting BMW, and Martinez got out of the car and
fired three or four shots in the direction of Baquiax and Ordonez.
At that point Baquiax was about six feet from Acosta, and
Ordonez about 12 feet away from him. Nothing about this factual
scenario supports an inference that Martinez targeted Ordonez
and shot at everyone in his immediate vicinity to ensure Ordonez
was killed. Rather, the evidence supports the conclusion
Martinez aimed at both Ordonez and Baquiax, intending to kill
each of them for attempting to assist Acosta or apprehend Lopez.


17
      Although Lopez and Navarrete did not object to the kill
zone instruction, we review any claim of instructional error that
allegedly affects the defendants’ substantial rights even in the
absence of an objection. (§ 1259; People v. Smithey (1999)
20 Cal.4th 936, 976-977, fn. 7.) We can only determine if the
defendants’ substantial rights were affected by deciding whether
the instruction was given in error and, if so, whether the error
was prejudicial.



                                52
This is essentially what the prosecutor argued to the jury—that
Martinez intended to kill both men, but “Mr. Baquiax was lucky
enough to live.”
       Lopez and Navarrete assert the kill zone instruction was
unsupported by the evidence and necessarily prejudicial because
it was the only theory of attempted murder presented to the jury.
Although they are correct the attempted murder instruction
improperly included the kill zone theory, it did more than that:
The jury was instructed the nontarget offense of attempted
murder had been committed if the People proved “the defendant
not only intended to kill Andres Ordonez, but also either intended
to kill Santos Baquiax or everyone within the kill zone.” As
discussed, the evidence supported a finding of intent to kill both
Ordonez and Baquiax. The prosecutor did not argue or rely on
the kill zone theory, and the jury was directed to ignore
instructions that did not apply to the facts as it found them.
Under these circumstances it is not reasonably probable the jury
convicted Lopez and Navarrete of the attempted murder of
Baquiax based “solely on the unsupported theory.” (People v.
Guiton, supra, 4 Cal.4th at p. 1130; accord, People v. McCloud,
                                          18
supra, 211 Cal.App.4th at pp. 803-804.)

18
       In Canizales, supra, 7 Cal.5th 591 the Supreme Court held,
under the circumstances of that case, instructing the jury on the
kill zone theory as indicated in CALCRIM No. 600 without
sufficient evidence in the record to support the instruction was
federal constitutional error, not state court error governed by
People v. Guiton, supra, 4 Cal.4th 1116 and reviewed for
prejudice under the Watson standard. The Court explained,
because the instruction did not include a clear definition of the
theory and the prosecutor’s closing argument had a potential to
mislead the jury to believe the mere presence of a purported


                               53
      8. Substantial Evidence Supports the Criminal Street Gang
         Findings
      Lopez and Navarrete challenge the jury’s findings they
committed the crimes for the benefit of a criminal street gang,
arguing the People failed to prove the gang members who had
committed the predicate offenses were members of the same gang
subset as Lopez and Navarrete, as required by People v. Prunty
(2015) 62 Cal.4th 59 (Prunty), and the evidence on which the
gang expert relied was not competent under People v. Sanchez
(2016) 63 Cal.4th 665. Neither challenge to the sufficiency of the
evidence for the gang findings has merit.
          a. Prunty
      To obtain a true finding on an allegation of a criminal
street gang enhancement, the People must prove the crime at
issue was “committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent
to promote, further, or assist in any criminal conduct by gang


victim in an area in which he or she could be fatally shot was
sufficient for attempted murder liability, there was a reasonable
likelihood the jury understood the kill zone theory in a legally
impermissible manner. (Canizales, at p. 614.) Here, in contrast,
the prosecutor did not mention the kill zone theory in closing
argument; and error is properly viewed as involving an
instruction on an alternative theory that is not factually
supported by the evidence adduced at trial, which “the jury is
fully equipped to detect.” (Guiton, at p. 1129.) But even if giving
the kill zone instruction were federal constitutional error, in light
of the strength of the evidence that Martinez intended to kill both
Ordonez and Baquiax, we would find “‘it is clear beyond a
reasonable doubt that a rational jury would have rendered the
same verdict absent the error.’” (Canizales, at p. 615.)



                                 54
members.” (§ 186.22, subd. (b)(1).) A “criminal street gang” is
defined as an organization that has as one of its primary
activities the commission of one or more of the crimes
enumerated in section 186.22, subdivision (e), and whose
members have engaged in a “pattern of criminal gang activity” by
committing two or more of such “predicate offenses” on separate
occasions or by two or more persons within a three-year period.
(§ 186.22, subds. (e), (f); People v. Loeun (1997) 17 Cal.4th 1, 9.)
       In Prunty the defendant argued the People failed to
introduce sufficient evidence to prove that he had committed the
underlying offenses for the benefit of a criminal street gang,
challenging the prosecution’s theory the relevant ongoing
organization, association or group was the gang known as the
Norteños in general. (Prunty, supra, 62 Cal.4th at p. 70.)
Specifically, the defendant contended “the prosecution’s use of
crimes committed by various Norteño subsets to prove the
existence of a single Norteño organization . . . improperly
conflated multiple separate street gangs into a single Norteño
gang without evidence of ‘collaborative activities or collective
organizational structure’ to warrant treating those subsets as a
single entity.” (Ibid.)
       The Supreme Court agreed, holding, “[W]here the
prosecution’s case positing the existence of a single ‘criminal
street gang’ for purposes of section 186.22(f) turns on the
existence and conduct of one or more gang subsets, then the
prosecution must show some associational or organizational
connection uniting those subsets. That connection may take the
form of evidence of collaboration or organization, or the sharing of
material information among the subsets of a larger group.
Alternatively, it may be shown that the subsets are part of the




                                55
same loosely hierarchical organization, even if the subsets
themselves do not communicate or work together. And in other
cases, the prosecution may show that various subset members
exhibit behavior showing their self-identification with a larger
group, thereby allowing those subsets to be treated as a single
organization.” (Prunty, supra, 62 Cal.4th at p. 71; see id. at p. 81
[“the prosecution must show that the group the defendant acted
to benefit, the group that committed the predicate offenses, and
the group whose primary activities are introduced, is one and the
same”].)
       Officer Hernandez testified the Rockwood Street gang had
subsets or cliques that included Westmoreland and K.T.O.
Members of the separate cliques of Rockwood were all members
of the same gang and were simply divided by location. The
various cliques used common gang symbols and hand signs, and
it was common for members of two cliques to conduct joint
activities.
       Officer Hernandez also testified the gang’s primary
activities were murder, attempted murder, robbery and extortion.
Richard Alvarez, a Rockwood Street member known as Shaggy or
Shadow, was convicted of a murder committed in 2007. Rodrigo
Bernal, a Rockwood Street member known as Scooby or Woody,
was convicted of a murder committed in 2008.
       The trial court asked Officer Hernandez specifically
whether there was “some kind of associational connection”
between the Westmoreland and K.T.O. sets, noting that “[s]ome
gangs with actual subsets could actually be rivals, correct?”
Hernandez agreed that was the case “[f]or some,” but “[i]n
Rockwood they’re—none of the cliques are against each other at
all.” The court then asked, “So what I want to know is what’s the




                                 56
associational relationship between these two different cliques as
well as others of Rockwood?” Hernandez responded, “As far as
like the Westmorelands since that block is—nobody really hangs
out there. Those that are from Westmoreland come over here to
hang out with the cliques on our side of the . . . Rampart
Division.” In response to further questioning, he explained that
Westmoreland and K.T.O. had their own hierarchies, but they
were part of the common organization, not completely separate.
       The court also asked Officer Hernandez, “How does that
organizational composition interact?” The officer answered,
“Well, they all hang out together. The people that we have
suspected of being in charge of running that clique don’t always
come out and talk to us but we are told and from information
we’ve gathered that they do hang out and they do conduct their
business all as one.”
       Lopez and Navarrete contend this evidence was not
sufficient for the jury to find the required associational or
organizational connections among Rockwood Street,
Westmoreland and K.T.O. Additionally, they argue the People’s
evidence of primary activities and predicate crimes did not prove
the specified murders had been committed as part of criminal
gang activity because there was no evidence as to the subsets, if
any, to which the perpetrators (Bernal and Alvarez) belonged
and, thus, no way to link the Westmoreland and K.T.O. subsets
to the Rockwood gang.
       A comparison of the gang evidence in this case and that in
Prunty exposes the flaws in Lopez and Navarrete’s argument. In
Prunty the defendant was an admitted member of the Detroit
Boulevard Norteño set. (Prunty, supra, 62 Cal.4th at p. 68.) The
gang expert “testified that the Norteños are ‘a Hispanic street




                               57
gang active in Sacramento and throughout California’ with about
1,500 local members.” (Id. at p. 69.) The “Sacramento-area
Norteños are not associated with any particular ‘turf’ but are
instead ‘all over Sacramento’ with ‘a lot of subsets based on
different neighborhoods.’” (Ibid.) The expert also described the
primary activities of Sacramento-area Norteños and the common
names, signs, symbols and color of the Norteños. (Ibid.) The
expert identified the Norteños’ enemy as the Sureño street gang,
which had its own letters, number and color. (Ibid.) He
explained that “[b]oth the Norteños and the Sureños ‘originated
out of the California prison systems’ in the 1960’s and 1970’s.
The Sureños are associated with the Mexican Mafia prison gang,
while the Norteños have a ‘street gang association’ with the
Nuestra Familia, or NF, prison gang.” (Ibid.)
       The gang expert in Prunty “described a 2007 confrontation
between two Norteño gang subsets, the Varrio Gardenland
Norteños and the Del Paso Heights Norteños, that led to two
Varrio Gardenland members’ convictions for a variety of offenses,
including murder and attempted murder. [He also] testified
about a 2010 incident in which members of the Varrio Centro
Norteños shot at a former Norteño gang member. Besides [the
expert’s] testimony that these gang subsets referred to
themselves as Norteños, the prosecution did not introduce
specific evidence showing these subsets identified with a larger
Norteño group. Nor did [the expert] testify that the Norteño
subsets that committed the predicate offenses shared a
connection with each other, or with any other Norteño-identified
subset.” (Prunty, supra, 62 Cal.4th at p. 69.)
       The Supreme Court found that “where the prosecution’s
evidence fell short is with respect to the predicate offenses. [The




                                58
expert] referred to two offenses involving three alleged Norteño
subsets . . . . Although [the expert] characterized these groups as
Norteños, he otherwise provided no evidence that could connect
these groups to one another, or to an overarching Sacramento-
area Norteño criminal street gang. . . .” (Prunty, supra,
62 Cal.4th at p. 82.) In addition, the expert’s testimony did not
“demonstrate that the subsets that committed the predicate
offenses, or any of their members, self-identified as members of
the larger Norteño association that the defendant sought to
benefit. Although there was ample evidence that [the defendant]
self-identified as both a member of the Detroit Boulevard
Norteños and the larger umbrella Norteño gang, and that he
collaborated with a member of another subset to commit his
present offenses, the prosecution presented no evidence that the
members of the Varrio Gardenland and Varrio Centro Norteños
self-identified as part of the umbrella Norteño gang.” (Id. at
pp. 82-83.)
       Here, in contrast, Officer Hernandez’s testimony
established Rockwood Street had a relatively small number of
members and a discrete territory. The cliques were not separate
entities, but acted as parts of a common organization whose
members spent significant amounts of time with one another.
Thus, the jury had evidence from which it could reasonably find
that acts by members of any particular subset of Rockwood Street
were intended to benefit the larger gang itself. (See Prunty,
supra, 62 Cal.4th at p. 83 [the prosecution needed to present
evidence from which the jury could “connect the subsets that
committed the predicate offenses to the larger Norteño group the
prosecution claimed [the defendant] acted to benefit”]; People v.
Resendez (2017) 13 Cal.App.5th 181, 191 [“the prosecution in




                                59
Prunty provided no evidence of a connection between the
defendant’s gang and the subsets that committed the predicate
offenses. [Citation.] In contrast, here there was testimony
showing contacts among the Locos (defendant’s subset) and
Rascals (subset of the perpetrators of the predicate offenses), and
showing they all self-identified with the East Side Bolen gang”];
People v. Garcia (2017) 9 Cal.App.5th 364, 378 [“there is a
plethora of evidence that the Bittys and the Jungles subsets self-
identified as part of the Black P-Stones and ‘mutually
acknowledge[d] one another as part of that same organization’”].)
The acts of Alvarez and Bernal, no matter what subset of
Rockwood Street they may have belonged to, were predicate acts
of members of the same criminal street gang Lopez and
Navarrete sought to benefit.
          b. Sanchez
      As a further challenge to the sufficiency of the evidence to
support the predicate-acts element of the criminal street gang
findings, Lopez and Navarrete argue Officer Hernandez’s opinion
regarding the association between the subsets and the Rockwood
gang conveyed to the jury case-specific hearsay evidence
prohibited by the Supreme Court’s decision in Sanchez, supra,
63 Cal.4th 665, which held a gang expert may not “relate as true
case-specific facts asserted in hearsay statements, unless they
are independently proven by competent evidence or are covered
                                            19
by a hearsay exception.” (Id. at p. 686.)

19
      Trial in this case took place before the Supreme Court
issued its decision in Sanchez, which disapproved the Court’s
earlier decision, People v. Gardeley (1996) 14 Cal.4th 605, “to the
extent it suggested an expert may properly testify regarding case-
specific out-of-court statements without satisfying hearsay rules.”


                                 60
      In Sanchez the expert had based his opinion the defendant
was a member of a certain gang on various police contacts
during which the defendant was in the company of members of
that gang, and on statements he made when given a “STEP
notice” informing him he was associating with a known gang.
(Sanchez, supra, 63 Cal.4th at pp. 672-673.) The expert
admitted he had never met the defendant, was not present when
the STEP notice was given or during any of the police contacts,
and his knowledge of these matters was derived from police
reports and a field identification card. (Id. at p. 673.) As the
Court explained in finding these statements had been
improperly admitted, “Any expert may still rely on hearsay in
forming an opinion, and may tell the jury in general terms that
he did so. Because the jury must independently evaluate the
probative value of an expert’s testimony, Evidence Code
section 802 properly allows an expert to relate generally the kind
and source of the ‘matter’ upon which his opinion rests. . . .
There is a distinction to be made between allowing an expert to
describe the type or source of the matter relied upon as opposed
to presenting, as fact, case-specific hearsay that does not

(Sanchez, supra, 63 Cal.4th at p. 686, fn. 13.) The Supreme
Court has granted review in People v. Perez (review granted
July 18, 2018, S248730) to decide whether a defendant who failed
to object at trial before Sanchez was decided, as here, forfeits a
claim of Sanchez error subsequently advanced on appeal. (See
People v. Mendez (2019) 7 Cal.5th 680, 694.) We consider the
merits of Lopez and Navarrete’s claim of error based on Sanchez
in the interest of judicial economy. (See generally People v. Welch
(1993) 5 Cal.4th 228, 237-238 [no forfeiture “where an objection
would have been futile or wholly unsupported by substantive law
then in existence”].)



                                61
otherwise fall under a statutory exception. [¶] What an expert
cannot do is relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Sanchez, at
pp. 685-686.)
       Moreover, like any hearsay, if the out-of-court statement is
testimonial and is offered against the defendant in a criminal
prosecution, Crawford v. Washington (2004) 541 U.S. 36 [124
S.Ct. 1354, 158 L.Ed.2d 177] (Crawford) and its progeny govern
its admissibility. (See Sanchez, supra, 63 Cal.4th at p. 686.)
“Testimonial statements are those made primarily to
memorialize facts relating to past criminal activity, which could
be used like trial testimony. Nontestimonial statements are
those whose primary purpose is to deal with an ongoing
emergency or some other purpose unrelated to preserving facts
for later use at trial.” (Id. at p. 689; accord, People v. Gallardo
(2017) 18 Cal.App.5th 51, 67 [“to be ‘testimonial’ under
Crawford, the statement must have been ‘given and taken
primarily for the purpose [of] . . . establish[ing] or prov[ing] some
past fact for possible use in a criminal trial’”]; People v. Lara
(2017) 9 Cal.App.5th 296, 336-337.)
       Here, Lopez and Navarrete tacitly concede the propriety of
Officer Hernandez’s testimony that Lopez was a Rockwood Street
member and Navarrete an associate, the evidence at issue in
Sanchez, but argue his opinion the Westmoreland and K.T.O.
subsets were associated with, and part of, the Rockwood gang
presented inadmissible case-specific hearsay without
independent supporting proof. They also contend Officer
Hernandez’s testimony Alvarez and Bernal were Rockwood gang
members was inadmissible under Sanchez.



                                 62
      Lopez and Navarrete misperceive the nature of Officer
Hernandez’s opinion testimony concerning the subsets of the
Rockwood gang. As discussed, expert testimony that relies on
hearsay is still admissible provided the expert only tells the jury
in general terms the bases for his or her opinion and does not
relate as true case-specific facts asserted in hearsay statements.
(Sanchez, supra, 63 Cal.4th at pp. 685-868.) That is exactly what
Hernandez did here, opining about the relationship of the
Westmoreland and K.T.O. subsets to the Rockwood gang without
repeating any specific statements from third parties regarding
the operation and organization of the Rockwood gang. (Cf. People
v. Meraz (2018) 30 Cal.App.5th 768, 781, review granted Mar. 27,
2019, S253629; People v. Blessett (2018) 22 Cal.App.5th 903, 945,
review granted Aug. 8, 2018, S249250; People v. Vega-Robles
(2017) 9 Cal.App.5th 382, 411.)
      Moreover, in crafting an argument based not only on state
hearsay law but also under the federal confrontation clause as
articulated in Crawford, supra, 541 U.S. 36, Lopez and Navarrete
make no attempt to demonstrate Officer Hernandez’s testimony
regarding the various subsets of Rockwood Street was based on
testimonial hearsay, rather than personal knowledge. (See
Sanchez, supra, 63 Cal.4th at p. 685 [confrontation clause
implicated when the expert bases his or her opinion on case-
specific testimonial hearsay].) An expert’s testimony based on
personal knowledge of case-specific facts is admissible. (Id. at
p. 683.) The record reflects Officer Hernandez’s testimony
regarding Alvarez and Bernal was based on personal
knowledge—he had testified at both men’s trials for what was
identified here as the gang’s predicate offenses—and the certified
minute orders from those cases. This evidence was sufficient to




                                63
support a finding as to the predicate offenses. (People v. Duran
(2002) 97 Cal.App.4th 1448, 1463; People v. Villegas (2001)
92 Cal.App.4th 1217, 1228.)
          9. The Trial Court Did Not Err by Failing To Instruct
             on Attempted Voluntary Manslaughter
      The trial court has a duty to “instruct on all lesser included
offenses supported by substantial evidence. [Citations.] The
duty applies whenever there is evidence in the record from which
a reasonable jury could conclude the defendant is guilty of the
lesser, but not the greater, offense. [Citations.] That voluntary
manslaughter is a lesser included offense of murder is
undisputed. [Citations.] [¶] Imperfect self-defense, which
reduces murder to voluntary manslaughter, arises when a
defendant acts in the actual but unreasonable belief that he is in
imminent danger of death or great bodily injury.” (People v. Duff
(2014) 58 Cal.4th 527, 561-562.) These principles extend to “one
who kills in imperfect defense of others—in the actual but
unreasonable belief he must defend another from imminent
danger of death or great bodily injury.” (People v. Randle (2005)
35 Cal.4th 987, 997, overruled on another ground in People v.
Chun (2009) 45 Cal.4th 1172, 1201; see People v. Nguyen (2015)
61 Cal.4th 1015, 1066 [imperfect self-defense or defense of others
                                                                20
requires “‘an unreasonable belief that harm was imminent’”].)
      Lopez and Navarrete contend the facts demonstrated that
Martinez was attempting to protect Lopez from an attack by the


20
      “Imperfect defense of others, like imperfect self-defense, is
not a true defense, but a shorthand description for a form of
voluntary manslaughter.” (People v. Trujeque (2015) 61 Cal.4th
227, 271.)



                                 64
three men who came from the church parking lot, and his use of
deadly force, while unreasonable, supported an instruction on
attempted voluntary manslaughter as to Baquiax. But they cite
nothing in the record to support this contention, instead only
making a generalized argument the evidence established
“Martinez was acting to protect [Lopez] from attack by others
who outnumbered her.” What the evidence actually showed, was
that, after Acosta confronted Lopez, who was spray painting
graffiti on the church wall, she attacked him, knocking him to the
ground and kicking him. When Baquiax and Ordonez came out
but were still six to 12 feet away, Lopez ran to the BMW. At the
same time, Martinez got out of the BMW and shot at Baquiax
and Ordonez. At that point Lopez was in no danger; she certainly
was not under attack and outnumbered by three men.
       10. Lopez and Navarrete Are Entitled to New Sentencing
          Hearings
          a. Correction of sentencing errors
       Navarrete contends, the People concede, and we agree the
trial court erred in imposing five-year enhancements for a prior
serious felony (§ 667, subd. (a)(1)) and in imposing both the
firearm-use and criminal street gang enhancements (although
the gang enhancements were stayed). This second error affected
the sentence of both Lopez and Navarrete.
       The information alleged Navarrete had a prior robbery
conviction constituting a strike within the meaning of
sections 667, subdivisions (b) through (i), and 1170.12. It did not
allege the robbery was also a serious felony under section 667,
subdivision (a)(1). Navarrete admitted the strike prior, and the
trial court sentenced Navarrete as a second strike offender. But
the court also imposed five-year enhancements for a prior serious




                                65
felony conviction under section 667, subdivision (a)(1), on
Navarrete’s indeterminate life terms for both murder and
attempted premeditated murder.
       A prior serious felony enhancement under section 667,
subdivision (a)(1), is subject to pleading and proof requirements.
(People v. Nguyen (2017) 18 Cal.App.5th 260, 267; see People v.
Jackson (1985) 37 Cal.3d 826, 835, fn. 12, overruled on another
ground in Guerrero (1988) 44 Cal.3d 343, 348.) Because that
enhancement was not pleaded and proved by the People here, the
trial court erred in imposing the five-year terms.
       As to the murder and attempted murder counts, the trial
court imposed on both Navarrete and Lopez 25-year-to-life
firearm-use enhancements under section 12022.53,
                           21
subdivisions (d) and (e)(1). It also improperly imposed on those
two counts, and stayed, 10-year gang enhancements pursuant to
section 186.22, subdivision (b)(1)(C).
      Subdivision (e)(1) of section 12022.53 permits the trial
court to impose a firearm-use enhancement on a principal who
did not personally use a firearm “‘if both of the following are pled
and proved: [¶] (A) The person violated subdivision (b) of
Section 186.22. [¶] (B) Any principal in the offense committed
any act specified in subdivision (b), (c), or (d).’” (People v.
Brookfield (2009) 47 Cal.4th 583, 590.) Subdivision (e)(2) of
section 12022.53 “limits the effect of subdivision (e)(1). A
defendant who personally uses or discharges a firearm in the
commission of a gang-related offense is subject to both the

21
      The minute orders entered following the sentencing
hearings and abstracts of judgment as to both Navarrete and
Lopez erroneously reflect the firearm-use enhancements were
imposed pursuant to section 12022.53, subdivision (b).



                                 66
increased punishment provided for in section 186.22 and the
increased punishment provided for in section 12022.53. In
contrast, when another principal in the offense uses or discharges
a firearm but the defendant does not, there is no imposition of an
‘enhancement for participation in a criminal street gang . . . in
addition to an enhancement imposed pursuant to’
section 12022.53.” (Brookfield, at p. 590.) Accordingly, the trial
court erred in imposing enhancements pursuant to
section 186.22, subdivision (b)(1)(C). (See Brookfield, at p. 596.)
For the same reason, the trial court erred in imposing both the
firearm-use enhancement and a 15-year minimum parole
                                                          22
eligibility period under section 186.22, subdivision (b)(5), as to
the attempted premeditated murder count. (Brookfield, at p. 595
[“the word ‘enhancement’ in section 12022.53(e)(2) refers to both
the sentence enhancements in section 186.22 and the penalty
provisions in that statute”]; accord, People v. Gonzalez (2010)
180 Cal.App.4th 1420, 1427 [“the trial court erred in imposing
the gang statute’s minimum parole eligibility period in addition
to the 25-year gun enhancement”]; see People v. Valenzuela
(2011) 199 Cal.App.4th 1214, 1238.)
       We remand the case to permit the trial court to correct
these sentencing errors, as well as to address the other
sentencing matters discussed in this opinion.




22
      Section 186.22, subdivision (b)(5), provides: “Except as
provided in paragraph (4), any person who violates this
subdivision in the commission of a felony punishable by
imprisonment in the state prison for life shall not be paroled until
a minimum of 15 calendar years have been served.”



                                67
          b. Consideration of the discretion created by SB 620
       On October 11, 2017, while Lopez’s and Navarrete’s
petitions for review were pending in the Supreme Court, the
Governor signed SB 620, amending section 12022.53 to give
discretion to the trial court to strike a firearm enhancement in
the interest of justice. (See Stats. 2017, ch. 682, § 2; § 12022.53,
subd. (h) [“The court may, in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.
The authority provided by this subdivision applies to any
                                                             23
resentencing that may occur pursuant to any other law”].)
       In transferring the case to us earlier this year, the
Supreme Court directed us to consider the effect of SB 620.
Lopez, Navarrete and the Attorney General all agree remand is
appropriate to permit the trial court to exercise its new
sentencing discretion on the firearm enhancements. (See People
v. Billingsley (2018) 22 Cal.App.5th 1076, 1079-1080; People v.
                                                  24
McDaniels (2018) 22 Cal.App.5th 420, 424-425.)



23
      Former section 12022.53, subdivision (h), provided,
“Notwithstanding Section 1385 or any other provision of law, the
court shall not strike an allegation under this section or a finding
bringing a person within the provisions of this section.”
24
      If the court exercises its discretion to dismiss or strike the
firearm-use enhancements imposed pursuant to section 12022.53,
subdivision (e)(1), it will also need to decide whether to impose or
strike the previously stayed criminal street gang enhancements.
(See § 186.22, subd. (g) [court may strike the additional
punishment for enhancements provided by section 186.22 if the
interests of justice would best be served by that disposition].)



                                 68
         c. Providing an opportunity for Lopez to demonstrate
            youth-related characteristics
       Section 3051, originally enacted in 2013 (Stats. 2013,
ch. 312, § 4), now provides in part, “A person who was convicted
of a controlling offense that was committed when the person was
25 years of age or younger and for which the sentence is a life
term of less than 25 years to life shall be eligible for release on
parole by the [Board of Parole Hearings] during his or her 20th
year of incarceration at a youth offender parole hearing . . . .”
(§ 3051, subd. (b)(2).) Lopez was 22 years old when she
committed the crimes at issue in this case and, accordingly, will
be entitled to a youth offender parole hearing under section 3051.
As Lopez requests, on remand the trial court must provide her an
opportunity to present evidence of her youth-related
characteristics that will be evaluated at her future youth offender
parole hearing, as contemplated by the Supreme Court’s decision
in Franklin, supra, 63 Cal.4th 261.
       In Franklin, decided shortly after Lopez was sentenced, the
Supreme Court explained section 3051, together with
section 4801, subdivision (c), “contemplate that information
regarding the juvenile offender’s characteristics and
circumstances at the time of the offense will be available at a
youth offender parole hearing to facilitate” consideration by the
Board of Parole Hearings. (Franklin, supra, 63 Cal.4th at
p. 283.) Because assembling such evidence is “more easily done
at or near the time of the juvenile’s offense rather than decades
later” (id. at pp. 283-284), the Court remanded the case to the
trial court to give Franklin an opportunity to “put on the record
the kinds of information that sections 3051 and 4801 deem
relevant at a youth offender parole hearing” (id. at p. 284).




                                69
       Lopez has acknowledged section 3051 was in effect at the
time of her sentencing hearing and her counsel “perfunctorily
addressed” the relevant factors. Given the heightened
significance of youth-related information to subsequent parole
evaluations as described in Franklin, however, Lopez must be
given the opportunity to make a more complete record for use at
a future youth offender parole hearing. (People v. Jones (2017)
7 Cal.App.5th 787, 819 [“Franklin made clear that the sentencing
hearing has newfound import in providing the juvenile with an
opportunity to place on the record the kinds of information that
‘will be relevant to the [parole board] as it fulfills its statutory
obligations’”]; see People v. Tran (2018) 20 Cal.App.5th 561, 570.)
We simply cannot assume defense counsel at a sentencing
hearing that preceded Franklin anticipated the extent to which
evidence of youth-related factors was a critical component of the
hearing. (Tran, at p. 570 [“[b]ecause appellant did not have the
benefit of that decision [(Franklin)] at the time of his sentencing
hearing, fairness dictates the matter be remanded for further
proceedings”]; Jones, at p. 820 [“[I]t is unclear whether Jones
understood both the need and the opportunity to develop the type
of record contemplated by Franklin. Accordingly, we remand the
matter so that the trial court can follow the procedures outlined
in Franklin to ensure that such opportunity is afforded to
Jones”].)
                           DISPOSITION
      The matter is remanded to provide Lopez and Navarrete an
opportunity to petition the trial court pursuant to section 1170.95
to vacate their convictions for second degree murder and to
resentence them as specified in section 1170.95, subdivision (d).
Their convictions for attempted premeditated murder and



                                 70
vandalism and the associated firearm-use and criminal street
gang enhancements are affirmed. The sentences imposed are
vacated, and the trial court is directed to resentence them to
correct the errors discussed in this opinion, to exercise the
discretion it now possesses with respect to the firearm-use and
criminal street gang enhancements and to provide Lopez a
Franklin hearing.


                                          PERLUSS, P. J.

      We concur:


            SEGAL, J.


            FEUER, J.




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