Filed 10/8/19 (unmodified opinion and modification order attached)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                            DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                                    G052967

        v.                                                       (Super. Ct. No. 09CF3083)

JESUS HUMBERTO MEJIA,                                            ORDER MODIFYING OPINION;
                                                                 NO CHANGE IN JUDGMENT
    Defendant and Appellant.



             It is ordered that the opinion filed on September 18, 2019, modified on
October 8, 2019, be further modified as follows:

            On the first page, delete from the list of attorneys the name Kimberly A.
Donohue, and in its place insert Kimberley A. Donohue.

                 This modification does not change the judgment.




                                                             O’LEARY, P. J.

I CONCUR:



IKOLA, J.
Filed 10/8/19 (unmodified opinion attached)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                              DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                            G052967

        v.                                               (Super. Ct. No. 09CF3083)

JESUS HUMBERTO MEJIA,                                    ORDER MODIFYING OPINION;
                                                         NO CHANGE IN JUDGMENT
    Defendant and Appellant.



                 It is ordered that the opinion filed on September 18, 2019, be modified as
follows:

            1. On the first page, delete from the list of attorneys the name Kimberly A.
Donahue, and in its place insert Kimberly A. Donohue.

              2. On page nine, last paragraph, the fourth sentence is modified to read in
full, “Holding the aider and abettor liable for the perpetrator’s mental state under the
natural and probable consequences doctrine increases a maximum determinate sentence
of nine years to a possible life sentence of which the defendant must serve seven years
before parole consideration. (§ 664, subd. (a).)”
            These modifications do not change the judgment.




                                             O’LEARY, P. J.

I CONCUR:



IKOLA, J.




                                         2
Filed 9/18/19 (unmodified opinion)




                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                 FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                        G052967

        v.                                           (Super. Ct. No. 09CF3083)

JESUS HUMBERTO MEJIA,                                OPINION

    Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Reversed and remanded.
                 Athena Shudde, under appointment by the Court of Appeal, for Defendant
and Appellant.
                 Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C.
Ragland and Kimberly A. Donahue, Deputy Attorneys General, for Plaintiff and
Respondent.
                A jury convicted Jesus Humberto Mejia of attempted premeditated murder,
burglary, robbery, street terrorism, and firearm possession. The jury also returned true
findings on associated weapon and street gang allegations. In bifurcated proceedings, the
trial court made true findings on prior conviction allegations. Mejia contends the court
improperly instructed the jury on premeditated attempted murder under the natural and
probable consequences doctrine. We agree the premeditation and deliberation special
finding must be reversed.
                Mejia also raises sentencing issues, which the Attorney General concedes.
First, we agree with the parties that the trial court erred in imposing the full 10-year
sentence for the gun-use enhancement. Second, we acknowledge and agree with the
parties that a recent change in the law requires that this case be remanded to allow the
trial court to exercise its discretion to strike the five-year prior conviction enhancement
                                                                   1
imposed pursuant to Penal Code section 667, subdivision (a)(1). Finally, we order the
trial court to correct numerous clerical errors on the abstract of judgment and minute
order (brought to our attention by the Attorney General). In all other respects, we affirm
the judgment.
                                           FACTS
                Mejia’s primary argument in this appeal concerns instructional error related
to the attempted murder conviction alleged in count 4. Accordingly, our facts focus on
that crime.
                Early one morning, Jose Ramirez and his wife, Alberta, heard their car
                  2
alarm sounding.       Alberta saw a young man standing at the garage. Jose went to the
garage and noticed Mejia was outside standing next to a black car talking on a cellphone.
When Jose entered the garage, he saw the back passenger window of his vehicle was

1
                All further statutory references are to the Penal Code, unless otherwise
indicated.
2
                For clarity we use the Ramirezs’ first names. No disrespect is intended.

                                               2
broken. He watched Francisco Rodriguez, who was inside the vehicle, attempting to
remove the speakers. Jose tried to leave the garage when Rodriguez turned and pointed a
shotgun at him. However, Mejia, who was now holding a pistol, ordered Jose back into
the garage.
              Alberta, who was standing nearby, was holding a cellphone in her hand.
Mejia pointed his pistol at her and grabbed her phone. At this point, the apartment
complex manager arrived and told the two culprits, “Lower your weapon. Don’t be a
fool. Think about what you’re doing.”
              Rodriguez pointed his shotgun at Jose and pulled the trigger three times,
but the weapon did not fire. Hearing sirens in the background, Mejia said, “Let’s get out
of here.” The men left in the black car that had been left outside the garage.
              Rodriguez and Mejia were tried as codefendants. As relevant to this
appeal, the jury was instructed with CALCRIM Nos. 600 (Attempted Murder), 601
(Attempted Murder: Premeditated and Deliberation), 400 (Aiding and Abetting: General
Principles), 401 (Aiding and Abetting: Intended Crimes), and 403 (Natural and Probable
Consequences Doctrine).
              A jury convicted Mejia of the following crimes: possession of a firearm by
a felon (§ 12021, subd. (a)(1); counts 1, 11); second degree vehicle burglary (§§ 459,
460, subd. (b); count 2); second degree robbery (§§ 211, 212.5, subd. (c); count 3);
attempted premeditated murder (§§ 664, subd. (a)/187, subd. (a); counts 4, 9); attempted
first degree robbery (§§ 664, subd. (a), 211, 212.5, subd. (a); counts 5, 7); first degree
burglary (§§ 459, 460, subd. (a); counts 6, 8); and street terrorism (§ 186.22, subd. (a);
count 10). The jury found true that in counts 3 and 9, Mejia personally used a firearm
during the commission and attempted commission of such offenses. (§ 12022.53, subd.
(b).) As to counts 4 and 7, vicarious use of a firearm by a gang member was also found
to be true. (§ 12022.53, subds. (b), (e)(1).). Many of the counts were found to have been
committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury

                                              3
also found true a prior conviction qualifying as a serious felony (§ 667, subd. (a)(1)), and
two prior convictions qualifying as strikes (§ 667, subds. (d), (e)(2)(A), 1170.12, subds.
(b), (c)(2)(A)).
               The court sentenced Mejia to an aggregate term of 44 years to life,
consecutive to a determinate term of 62 years and 4 months. The court imposed the
middle term of three years on count 3 (second degree robbery), enhanced by 10 years for
the gang allegation, and further enhanced by 10 years for the use of a firearm; a
consecutive term of 14 years to life on count 4 (attempted murder) enhanced by 10 years
for the principal armed gang allegation; the middle term of two years on count 5
(robbery), plus 10 years for the gang allegation, further enhanced by 10 years for the
weapon use allegation, to run consecutive to count 4; a consecutive term of eight months
on count 7 (attempted first degree robbery), enhanced by 10 years for the weapon use
allegation; and 30 years to life on count 9 (attempted murder), enhanced by 10 years for
the weapon use allegation, to run consecutive to count 4. The court imposed an
additional five year term for the prior serious felony conviction. It imposed and stayed
the sentences on the remaining counts and allegations and ordered those would run
concurrent with the sentence imposed on count 4.
                                      DISCUSSION
I. Instructional Error
               Mejia contends he was “deprived of his federal due process and fair trial
rights where the jury was instructed it could find him guilty of premeditated attempted
murder under the natural and probable consequences doctrine based on a codefendant’s
premeditation and deliberation.” Mejia cites People v. Chiu (2014) 59 Cal.4th 155 (Chiu)
for its holding “that a first degree, premeditated and deliberate murder conviction for an
aider and abettor cannot be based on the natural and probable consequence doctrine as a
matter of law.” He concedes the California Supreme Court in Chiu did not extend its
holding to the crime of attempted murder. Mejia also acknowledges the Supreme Court,

                                             4
in People v. Favor (2012) 54 Cal.4th 868 (Favor), held an aider and abettor may be
found to have committed attempted murder with premeditation on the basis of the natural
and probable consequences doctrine. Mejia argues there is no principled reason for any
distinction between the results in Chiu and in Favor. We agree.
              In Favor, a codefendant shot and killed an employee during the course of a
robbery. (Favor, supra, 54 Cal.4th at pp. 873-874.) At trial, the prosecution’s theory
was that Favor was guilty of the target offense of robbery as an aider and abettor, and
guilty of the nontarget offense of attempted murder as a natural and probable
consequence of the robbery. (Id. at p. 874.) On appeal, Favor argued the trial court
committed reversible instructional error by failing to instruct the jury that a premeditated
attempt to murder must have been a natural and probable consequence of the target
offense. (Ibid.) The court disagreed, holding, “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.)
              Two justices dissented in Favor. The dissenting opinion of Justice Liu,
joined by Justice Kennard, reasoned, “A jury finding of reasonable foreseeability
provides the crucial nexus that links a defendant’s culpability for aiding and abetting the
target offense to his criminal liability for the nontarget offense. Without that nexus, there
is no basis—no legally sufficient theory of causation—to find the defendant culpable for
the nontarget offense.” (Favor, supra, 54 Cal.4th at p. 882 (dis. opn. of Liu J.).) The
dissent asserted the majority opinion “disregards the essential causal link that must exist
between the charged nontarget offense and the target offense aided and abetted by
defendant.” (Ibid.) They questioned how a defendant could “be convicted of
premeditated attempted murder on a natural and probable consequences theory when the

                                              5
jury was never asked to determine whether premeditated attempted murder was a natural
and probable consequence of the target offense?” (Ibid.)
              Two years later, in the Chiu opinion, the Supreme Court held “an aider and
abettor may not be convicted of first degree premeditated murder under the natural and
probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at pp. 159-160.) The court
began by discussing the principles related to the natural and probable consequences
doctrine as articulated and refined over the years in California case law. (Id. at
pp. 161-162.) The court noted it had “not previously considered how to instruct the jury
on aider and abettor liability for first degree premeditated murder under the natural and
probable consequences doctrine.” (Id. at p. 162.)
              In Chiu, the Attorney General urged the Supreme Court to reach the same
result as it had in Favor, but the Supreme Court declined, finding Favor distinguishable
in several respects. (Chiu, supra, 59 Cal.4th at p. 163.) The court reasoned that unlike
Favor, “the issue in the present case does not involve the determination of legislative
intent as to whom a statute applies.” (Ibid.) Additionally, it reasoned Favor “involved
the determination of premeditation as a requirement for a statutory penalty provision,”
whereas here the court was now considering premeditation and deliberation as an element
of first degree murder. “In reaching our result in Favor, we expressly distinguished the
penalty provision at issue there from the substantive crime of first degree premeditated
murder on the ground that the latter statute involved a different degree of the offense.
[Citation.]” (Ibid.)
              Lastly, the Supreme Court indicated the “consequence of imposing liability
for the penalty provision in Favor [was] considerably less severe than in imposing
liability for first degree murder under the natural and probable consequences doctrine.”
(Chiu, supra, 59 Cal.4th at p. 163.) The court discussed the significant disparity in
sentences between attempted murder with deliberation and premeditation, and first
degree murder. A defendant convicted of attempted murder with a true finding of

                                              6
premeditation and deliberation “is subject to a determinate term of five, seven, or nine
years” plus a “sentence of life with the possibility of parole . . . [with the defendant
being] eligible for parole after serving a term of at least seven years. [Citation.]” (Ibid.,
§§ 664 subd. (a), 3046, subd. (a)(1).) “On the other hand, a defendant convicted of first
degree murder must serve a sentence of 25 years to life . . . [and] must serve a minimum
term of 25 years before parole eligibility. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 163;
§§ 190, subd. (a), 3046, subd. (a)(2).) “A defendant convicted of second degree murder
must serve a sentence of 15 years to life, with a minimum term of 15 years before parole
eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)” (Chiu, supra, 59 Cal.4th at p. 163.)
              After concluding Favor was not dispositive of the question before it, the
Supreme Court engaged in a rigorous review of the “statutory and doctrinal bases of the
natural and probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 163.) The
court observed that in the context of murder under the natural and probable consequences
doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm
or the criminal act that caused that harm. (Id. at p. 164.) The court cited numerous cases
addressing the issue of foreseeable consequences in relation to the natural and probable
consequences doctrine. (Id. at pp. 164-165.) The court referred to legal authority holding
the escalation of a confrontation to a deadly level was a foreseeable consequence of
simple assault; a deadly shooting was a natural and probable consequence of aiding and
abetting an assault with a deadly weapon; a fatal shooting was a natural and probable
consequence of a gang fight; and the natural and probable consequence of any armed
robbery is that someone may be shot. (Id. at p. 165, and cases cited therein.)
              The Chiu court reiterated what was stated in People v. Luparello (1986)
187 Cal.App.3d 410, 439. “The natural and probable consequences doctrine is based on
the principle that liability extends to reach ‘the actual, rather than the planned or
“intended” crime, committed on the policy [that] . . . aiders and abettors should be



                                               7
responsible for the criminal harms they have naturally, probably, and foreseeably put in
motion.’” (Chiu, supra, 59 Cal.4th at pp. 164-165.)
              In the context of murder, the court held “the natural and probable
consequences doctrine serves 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.” (Chiu, supra, 59 Cal.4th at
p. 165.) The court reasoned, this “public policy concern loses its force in the context of a
defendant’s liability as an aider and abettor of a first degree premeditated murder.” (Id.
at p. 166.) It noted first degree murder is the unlawful killing of a human being with the
additional elements of willfulness, premeditation, and deliberation and “[t]hat mental
state is uniquely subjective and personal.” (Ibid.) “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.]” (Ibid.) That unique mental state distinguishes a first degree unlawful killing
from a second degree murder, and triggers a heightened penalty. “Additionally, whether
a direct perpetrator commits a nontarget offense of murder with or without premeditation
and deliberation has no effect on the resultant harm. The victim has been killed
regardless of the perpetrator’s premeditative mental state.” (Ibid.)
              The Supreme Court reached the following conclusion: “Although we have
stated that an aider and abettor’s ‘punishment need not be finely calibrated to the
criminal’s mens rea’ [citation], the 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.)
              The court held “that punishment for second degree murder is commensurate
with a defendant’s culpability for aiding and abetting a target crime that would naturally,

                                              8
probably, and foreseeably result in a murder under the natural and probable consequences
doctrine.” (Chiu, supra, 59 Cal.4th at p. 166.) It added, “We further hold that where the
direct perpetrator is guilty of first degree premeditated murder, the legitimate public
policy considerations of deterrence and culpability would not be served by allowing a
defendant to be convicted of that greater offense under the natural and probable
consequences doctrine.” (Ibid.)
              The Attorney General argues Chiu was limited to first degree murder and
Favor is controlling. While it is true the Supreme Court in Chiu declined to specifically
overrule Favor, it is important to consider the question the court was addressing. The
court was not reexamining Favor in a vacuum. In considering the case before it, the
Supreme Court responded to the Attorney General’s reliance on Favor and found it
distinguishable. The critical holding in Chiu is that the perpetrator’s mental state of
premeditation and deliberation “is too attenuated to impose aider and abettor liability for
first degree murder under the natural and probable consequences doctrine.” (Chiu, supra,
59 Cal.4th at p. 166.) It follows then that in the context of attempted murder, the
perpetrator’s mental state of premeditation and deliberation state is equally too attenuated
to impose liability for premeditation and deliberation on an aider and abettor under the
natural and probable consequences doctrine. The unique mental state of willfulness,
premeditation, and deliberation is no less subjective and personal in the context of
attempted murder than it is in the context of murder.
              Penalty disparity and the public policy of deterrence were also important
factors in the holding of the Chiu opinion. The court found significant that premeditation
and deliberation was the distinction between first and second degree murder, and such a
mental state triggers a heightened penalty. In the case of attempted murder, a finding of
premeditation and deliberation likewise triggers a heightened penalty. Holding the aider
and abettor liable for the perpetrator’s mental state under the natural and probable
consequences doctrine increases a maximum determinate sentence of nine years to a

                                              9
possible life sentence of which the defendant must serve 16 years before parole
consideration. (§ 664, subd. (a).) Such an increase in penalty cannot be viewed as de
minimis or insufficient deterrence.
              Lastly, the Chiu court noted the natural and probable consequences doctrine
was intended to hold “‘aiders and abettors . . . responsible for the criminal harms that
they have naturally, probably, and foreseeably put in motion.’ [Citations.]” (Chiu,
supra, 59 Cal.4th at p. 164.) Finding the mental state of the perpetrator does not increase
the criminal harm, the court found a defendant cannot be convicted of first degree
premeditated murder under the natural and probable consequences doctrine. (Id. at
p. 166.) Similarly, just as the mental state of the perpetrator of a first degree murder does
not increase the criminal harm done, neither does the mental state of the perpetrator of a
deliberate and premeditated attempted murder increase the criminal harm.
              Applying the legal analysis outlined in the Chiu opinion, we conclude the
true finding of premeditated and deliberation as an aider and abettor cannot be based on
                                                      3
the natural and probable consequence doctrine. Accordingly, we agree with Mejia’s
contention the jury was improperly instructed and the premeditation and deliberation
special finding must be vacated.
              On this record, it does not appear there is adequate evidence to support a
finding of premeditation and deliberation without relying on a theory of vicarious
liability. Out of an abundance of caution, we remand the matter because although the
premeditation and deliberation special finding cannot be supported by an aiding and
abetting theory, we give the prosecution the opportunity to decide whether to retry Mejia
                                                  4
on the special finding as a direct perpetrator.
3
              Mejia also contends the United States Supreme Court’s holding in Alleyne
v. United States (2013) 570 U.S. 99 (Alleyne), undermines the holding in Favor. Finding
Chiu dispositive, we need not address the applicability of Alleyne.
4
              The prosecutor’s comments in closing argument reflect the prosecution was
proceeding on a natural and probable consequences theory in this trial. Specifically, the

                                              10
II. Sentencing Error
A. Gun-Use Enhancement
              Mejia and the Attorney General agree the trial court erred in imposing the
full 10-year sentence on count 7 for the gun-use enhancement (§ 12022.53, subds. (b),
(d)(1)), and agrees the correct term is three years and four months pursuant to section
1170.1. Accordingly, we order the trial court to modify the sentence on count 7 to reflect
the proper term of three years and four months for the enhancement.
B. Sentence for First and Second Degree Attempted Robberies (Counts 3 & 7)
              The trial court imposed a term of eight months on count 7 (first degree
attempted robbery). This part of the calculation was correct. The first degree robbery in
this case was punishable by a term of three, four, or six years. (§ 213, subd. (a)(l)(B).)
Those terms are halved under section 664 for an attempted first degree robbery, making
the sentencing triad 18 months, two years, or three years. (§ 664, subd. (a).) Pursuant to
section 1170.1, subdivision (a), the court imposed one-third the midterm (one third of two
years is eight months).
              The court imposed a three-year sentence on count 3 (an appropriate
midterm for second degree robbery). (§ 213, subd. (a)(l)(A).) Accordingly, the court
indicated the total term for counts 3 and 7 would be three years and eight months. This
calculation was also correct.
              However, later in the proceedings the court indicated the sentences on
counts 3 and 7 would be doubled pursuant to the Three Strikes law. (§ 667, subd. (e).) It
stated this would result in a sentence of seven years and six months on counts 3 and 7.
This was incorrect.
              Applying the Three Strikes law doubling provision, the three-year sentence
on count 3 would be doubled to six years, and the consecutive sentence of eight months

prosecutor offered the following argument on the issue of premeditation and deliberation:
“When I’m saying ‘defendant’ here, I am wrapping [Mejia] into Francisco Rodriguez.”

                                             11
on count 7 would be doubled to 16 months. The resulting total term on counts 3 and 7
would be seven years and four months, not seven years and six months. We recognize
the court may have simply misspoken, but the matter must be remanded for resentencing
on count 7 because the oral pronouncement was incorrect.
III. Clerical Errors
A. Application of Section 654
              Mejia found a discrepancy between the court’s oral pronouncement and its
minutes/abstract of judgment. A trial court’s oral pronouncement of judgment is the
binding judgment, and appellate courts may order modification of clerical errors that fail
to reflect that judgment properly. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.)
The Attorney General agrees this court should correct the minutes and the abstract of
judgment to reflect the proper judgment.
              Here, the trial court stayed, pursuant to section 654, Mejia’s sentences on
counts 1, 2, 5, 8, and 10. The abstract of judgment/minutes indicate those terms are to be
served concurrently. We order the trial court to correct the abstract of judgment and
court minutes to reflect sentences on counts 1, 2, 5, 8, and 10, are imposed and stayed
pursuant to section 654.
B. Three Strikes Law
              On counts 3 and 7, the Attorney General noticed there was a discrepancy
between the trial court’s oral pronouncement of judgment and the minutes and abstract of
judgment. The trial court stated it was doubling Mejia’s sentences on counts 3 and 7
under the “Three Strikes” law. However, the abstract of judgment failed to account for
the increased sentence. The Attorney General is correct in asserting the abstract of
judgment did not reflect the court’s intention to double the sentences on counts 3 and 7.
But because the court’s pronouncement of judgment was incorrect, we cannot simply
order a correction of the minute order. The matter must be remanded for resentencing
and a new abstract of judgment.

                                            12
C. Prior Serious Felony Conviction Enhancement
              The Attorney General correctly points out the section 667, subdivision
(a)(l), enhancement should not appear twice in the abstract of judgment. The trial court
imposed the enhancement only once, and it was properly indicated in the abstract of
judgment of the determinate sentence. We order the trial court to delete this
enhancement from the abstract of judgment on the indeterminate sentence.
D. Section 669
              The court’s minutes indicate Mejia must serve his determinate sentence
“consecutively to the defendant’s indeterminate sentence.” As correctly noted by the
Attorney General, when a defendant is sentenced to both a determinate and an
indeterminate sentence, the determinate sentence is served first. (§ 669.) We order the
court to modify the court minutes to indicate Mejia must serve his determinate sentence
first, followed by his indeterminate sentence.
E. Total Determinate Term
              As noticed by the Attorney General, due to the above modifications, the
abstract of judgment will no longer have an accurate total time. Because the matter is
being remanded for resentencing, we are confident the court’s new abstract of judgment
will reflect a new total determinate term after taking into account the orders and
disposition of this opinion.
IV. New Sentencing Legislation
              After briefing was completed, Mejia requested permission to file a
supplemental brief on Senate Bill No. 1393, signed by the governor on September 30,
2018. The new law gives trial courts the discretion to strike the punishment for serious
felony convictions as defined in section 667, subdivision (a)(1). We permitted Mejia and
the Attorney General to file supplemental briefs. Mejia also requested we take judicial
notice of the Supreme Court’s dockets in two cases. (People v. Gibson, Case no.



                                            13
S250914 and People v. Johnson, Case no. S250283). We deny this request because this
information was unnecessary for us to resolve this issue.
              The Attorney General concedes that if Senate Bill No. 1393 took effect
before Mejia’s judgment became final, the new law would apply to him retroactively.
The law became effective January 1, 2019. Accordingly, we accept the Attorney
General’s concession. We reverse the trial court’s imposition of the five-year
enhancement and remand this issue for resentencing so the trial court may consider
whether to exercise its recently conferred discretion to strike the five-year prior
conviction enhancement imposed pursuant to section 667, subdivision (a)(1).
                                       DISPOSITION
              We conclude the true finding of premeditated and deliberation as an aider
and abettor cannot be based on the natural and probable consequence doctrine.
Therefore, the premeditation and deliberation special finding must be vacated and the
matter remanded to give the prosecution the opportunity to decide whether to retry Mejia
on the special finding as a direct perpetrator.
              The case is also remanded so the trial court may consider whether to
exercise its recently conferred discretion to strike the five-year prior conviction
enhancement pursuant to section 667, subdivision (a)(1).
              During resentencing, we direct the trial court to correct several errors and
resentence Mejia as follows: (1) modify the sentence on count 7 for the gun-use
enhancement (§ 12022.53, subds. (b), (d)(1)), to three years four months; and (2) in
applying the Three Strikes law to the underlying sentences on counts 3 and 7, modify the
final calculated sentence to be a total of seven years and four months (not seven years and
six months as previously declared on the record).
              The trial court is further directed to correct the abstract of judgment and
minute order to correct the following clerical errors:



                                              14
             (1) The sentences on counts 1, 2, 5, 8, and 10, are imposed and stayed
pursuant to section 654;
             (2) The court’s intention to double the sentences on counts 3 and 7;
             (3) Deletion of the section 667, subdivision (a)(l), enhancement from the
indeterminate abstract of judgment;
             (4) The minute order should reflect the determinate sentence shall be served
first followed by the indeterminate sentence; and
             (5) The minute order and abstract of judgment should indicate the newly
recalculated total time imposed for the determinate term.
             The trial court shall forward the new abstract of judgment reflecting the
above modifications and corrections to the Department of Corrections and Rehabilitation.
             Finally, we deny the request for judicial notice. In all other respects, the
judgment is affirmed.




                                                 O’LEARY, P. J.

I CONCUR:




IKOLA, J.




                                            15
BEDSWORTH, J., Dissenting:


              I respectfully dissent. The primary issue in this case is whether the natural
and probable consequences theory of aiding and abetting can be used to support a
conviction for attempted premeditated murder. In People v. Favor (2012) 54 Cal.4th 868
(Favor), our Supreme Court answered that question in the affirmative. Two years later,
in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), the court held the natural and probable
consequences doctrine cannot be used to support a conviction for premeditated murder.
In so holding, Chiu did not overrule Favor; it simply determined there were sufficient
distinctions between the crimes of attempted premeditated murder and premeditated
murder to justify different results in those two cases. Thus it seems to be Favor remains
good law and controls the outcome in this case. (See People v. Gallardo (2017) 18
Cal.App.5th 51, 82-85.)
              My colleagues have concluded there is “no principled distinction” between
Favor and Chiu, and they may be right. But my understanding of stare decisis is that the
Supreme Court tell us whether that is the case. Until they do, I feel Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, requires us to follow Favor.




                                          BEDSWORTH, J.




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