Filed 9/6/19; Opinion following transfer from Supreme Court
          CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION THREE

    THE PEOPLE,                                           B283921

        Plaintiff and Respondent,                         (Los Angeles County
                                                          Super. Ct. No. KA110065)
        v.

    NICHOLAS ANTHONY MUNOZ,

        Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert M. Martinez, Judge. Judgment of
conviction affirmed; sentence vacated and remanded for further
proceedings.
      Law Offices of James Koester and James Koester, under
appointment by the Court of Appeal, for Defendant and
Appellant.
      Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant

*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for partial publication. The
portions of this opinion to be deleted from publication are
identified as those portions between double brackets, e.g., [[/]].
Attorney General, Yun K. Lee, Lindsay Boyd and David W.
Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
                   _________________________

       In June 2015, defendant Nicholas Anthony Munoz and his
cousins, James Rojas and Jonathan Loaiza, all gang members,
were driving in Pico Rivera. Munoz and Loaiza fired shots at
another car, a Yukon sport utility vehicle, in which four people
were riding. One shot injured, but did not kill, one of the
passengers in the Yukon. When Munoz’s group sped from the
shooting scene, their vehicle tumbled down an embankment,
killing Loaiza. Although the evidence showed both Munoz and
Loaiza fired shots at the Yukon, it did not definitively establish
which one of them fired the bullet that hit the victim. The jury
was instructed that Munoz could be found guilty of the attempted
murders of two of the Yukon’s occupants if he was the perpetrator
of the crime, was a direct aider and abettor, or if he committed
the target offense of shooting at an occupied motor vehicle and
murder was a natural and probable consequence of that offense.
The jury found the allegation Munoz fired the shot that hit one of
the victims not true, but convicted him of shooting at an occupied
motor vehicle and two counts of attempted premeditated murder,
with firearm and gang enhancements. The trial court sentenced
Munoz to two consecutive life terms for the premeditated
attempted murders, plus 50 years to life for the firearm
enhancements.
       In an unpublished opinion issued on October 11, 2018, we
affirmed Munoz’s convictions but vacated his sentence and
remanded to allow the trial court to exercise its discretion to




                                2
strike or dismiss the firearm enhancements pursuant to Penal
Code section 12022.53, subdivision (h). 1 Our Supreme Court
granted review and deferred further action pending disposition of
People v. Mateo (rev. granted May 11, 2016, S232674). Mateo
presented the question of whether, to convict an aider and
abettor of attempted willful, deliberate, and premeditated
murder under the natural and probable consequences doctrine, a
premeditated attempt to murder had to have been a natural and
probable consequence of the target offense.
       Meanwhile, the Legislature enacted and the Governor
approved Senate Bill No. 1437 (2017―2018 Reg. Sess.) (Senate
Bill 1437) (Stats. 2018, ch. 1015), which amended the law
governing application of the natural and probable consequences
doctrine as it relates to murder. The Supreme Court thereafter
transferred this matter back to us with directions to vacate our
opinion and reconsider the cause in light of Senate Bill 1437.
       In accordance with our Supreme Court’s order, we vacate
our October 11, 2018 nonpublished opinion. After considering the
parties’ supplemental briefs, we conclude in the published portion
of this opinion that Senate Bill 1437 does not apply retroactively
to nonfinal judgments on appeal. Moreover, Senate Bill 1437
does not apply to the offense of attempted murder. In the
nonpublished portion, we address Munoz’s contentions of
instructional error and evidentiary insufficiency, and remand for
resentencing on the firearm enhancements. Our analysis and
disposition regarding these previously raised claims of error
remain the same as in our original opinion.


1    All further undesignated statutory references are to the
Penal Code.



                                3
         FACTUAL AND PROCEDURAL BACKGROUND
       1. Facts
       Munoz was a member of the Pico Viejo criminal street
gang. His cousins, codefendant James Rojas, and Rojas’s brother,
Jonathan Loaiza, were also Pico Viejo members. Victor
Espindola, David Carrillo, and Adrian Perez were all members of
the Brown Authority criminal street gang. The Pico Viejo and
Brown Authority gangs were bitter enemies. Their claimed
territories overlapped, leading to ongoing violence and numerous
shootings between the gangs. Both gangs claimed Streamland
Park in Pico Rivera as their territory.
              a. People’s evidence
          (i) The shooting
       On June 26, 2015, between 7:00 and 8:00 p.m., Espindola,
Carrillo, and Perez, along with a woman named Daisy, went to
Streamland Park in Espindola’s mother’s burgundy Yukon SUV.
At the park, Carrillo spoke to some men near the baseball
diamond. Espindola’s group then saw a person with whom they
did not “get along.” Carrillo or Perez confronted the man, who
ran up a nearby hill.
       Espindola then drove the group away from the park in the
SUV. Carrillo and Perez sat in the back seat, with Carrillo on
the driver’s side. Daisy was in the front passenger seat.
Espindola drove northbound onto Rosemead Boulevard, in the far
right lane, at 10 to 15 miles per hour, looking for the man who
had run up the hill. According to Espindola, his group did not
intend to scare the man, but simply wished to determine why he
ran from them.
       Meanwhile, Rojas was driving his girlfriend’s blue
Mitsubishi Galant on Rosemead Boulevard, with passengers




                               4
Munoz and Loaiza. When Espindola’s SUV was parallel with the
park at the top of the hill, Rojas drove up to the SUV on the
driver’s side and Munoz and Loaiza fired shots directly at the
SUV. Espindola heard six gunshots. He heard his window “pop”
and a gunshot hit the car door, and then Rojas’s Mitsubishi sped
off. Espindola briefly continued driving on Rosemead until
Carrillo said he had been hit, and lost consciousness. Espindola
made a U-turn and drove Carrillo to the hospital. According to
Espindola, he was surprised by the shooting and did not know
why the assailants shot at his SUV. No one in Espindola’s group
was armed, and they did not display guns or shoot at anyone.
The whole incident transpired very quickly. 2
       Carrillo was shot in the stomach and underwent surgery at
the hospital.
          (ii) The accident
       Rojas drove from the shooting scene and attempted to enter
the 60 Freeway at an excessive speed, causing the Mitsubishi to
crash. Motorist Cynthia Arredondo observed the Mitsubishi
tumble down an embankment by the Rosemead onramp, landing
on its roof. Arredondo pulled over and called 911, while her
boyfriend attempted to render aid. Munoz was partially pinned
inside the car and was calling for help; he eventually managed to


2      Espindola described the incident to detectives in a July 29,
2015 recorded interview that was played for the jury, and again
in a second, unrecorded interview with a detective shortly before
trial. At trial, Espindola denied being a gang member, denied
making most of the statements in the interviews, professed not to
remember most of the evening’s events, and at times refused to
answer questions. He did, however, confirm that no one in his
group was armed or shot at Rojas’s car.



                                 5
free himself. Loaiza, who had been seated in the front passenger
seat, was deceased. Rojas was outside the car, talking on a
cellular telephone. When Arredondo asked Rojas whether
everyone was okay, he responded, “ ‘I killed my brother.’ ” He
also said someone had been chasing them. Within three minutes,
before emergency personnel or deputies arrived, a car picked
Rojas up from the accident scene.
          (iii) The investigation
       Two firearms were found outside the Mitsubishi at the
accident scene: a nine-millimeter Sig Sauer with an empty
magazine, and a .380-caliber Lorcin semiautomatic pistol, loaded
with a bullet in the chamber and a magazine containing five live
cartridges. At the shooting scene, which was approximately a
half mile from the accident scene, deputies recovered a bullet
fragment, four fired nine-millimeter cartridge cases, and one
fired .380-caliber cartridge case. Espindola’s SUV bore five bullet
holes, and five bullet fragments were recovered from the area
between the vehicle’s exterior and the interior panel. Forensic
examination revealed that the .380-caliber cartridge case had
been fired from the .380-caliber Lorcin gun found at the accident
scene. Munoz’s DNA matched DNA found on the .380-caliber
Lorcin gun. The four expended nine-millimeter cartridge cases
and four of the bullet fragments had been fired from the Sig
Sauer gun. 3 Two of the bullet holes in the SUV were made by
nine-millimeter bullets. A Pittsburgh Pirates baseball cap that
had been ejected from the Mitsubishi was on the ground at the
accident scene.


3     The fifth bullet fragment was too small to allow for a
conclusive comparison.



                                 6
       Rojas’s Mitsubishi bore no evidence of bullet strikes, and no
evidence suggested the occupants of the SUV shot at the
Mitsubishi.
             (iv) Munoz’s jail conversation with a confidential
informant
       On June 29, 2015, Munoz was placed in a jail cell with a
confidential informant. Their conversation was recorded and
played for the jury. Munoz stated he was a Pico Viejo gang
member with the moniker “Lil Scrappy.” He described the
incident as follows. 4 Some “fools,” whom he believed to be Brown
Authority gang members, had been chasing and attempting to
shoot at or harm his cousin and fellow gang member, Loaiza.
Loaiza was an “ace” and a “straight rider,” that is, an active gang
member known for committing crimes for the gang. Munoz and
Loaiza shot at the Brown Authority gang members, with Munoz
firing a .380 and Loaiza firing a nine-millimeter firearm.
Munoz’s gun jammed after he fired one shot. Loaiza, however
“fucken served them, boom, boom, boom, boom, boom.” 5 Although
it was dark, Munoz “just knew it was them, though . . . I just
knew it.” When Munoz’s group fled, the other car chased them.
Munoz thought the Brown Authority gang members had guns
and tried to pull them. When the accident occurred, he and
Loaiza were not wearing seat belts. Munoz was injured, Loaiza
died, and Rojas fled.



4     Munoz described the incident using street slang, which was
in some instances interpreted by the gang expert.
5   According to the gang expert, “served,” in this context,
means shot at.



                                 7
          (v) Gang expert’s testimony
       Los Angeles County Sheriff’s Detective Stephen Valenzuela
testified as the prosecution’s gang expert, regarding the Pico
Viejo gang’s membership, origins, territory, primary activities,
symbols, “code of silence,” and predicate offenses. 6 Pico Viejo was
one of the most violent gangs in the Pico Rivera area. There had
been numerous shootings between the Pico Viejo and Brown
Authority gangs, and incidents of violence in Streamland Park.
In Valenzuela’s opinion, Munoz, Loaiza, and Rojas were Pico
Viejo gang members. 7 The gang used the Pittsburgh Pirates “P”
as one of its symbols, and the Pittsburgh Pirates baseball cap
found at the accident scene was commonly worn by Pico Viejo
gang members. Valenzuela opined that Espindola and Carrillo
were members of the Brown Authority gang.
       When given a hypothetical based on the evidence adduced
at trial, Valenzuela opined that the shooting was committed for
the benefit of, and in association with, the Pico Viejo gang. The
shooting benefitted the gang by showing the community and
other gangs that Pico Viejo gang members would “do anything to


6     Because Munoz does not challenge Detective Valenzuela’s
qualifications as an expert, or the sufficiency of the evidence to
support the gang enhancement, we do not detail that evidence
here.
7     Munoz had Pico Viejo-related tattoos, and had admitted his
gang membership to the confidential informant, and to a
detective; Valenzuela was also aware of Munoz’s membership by
virtue of his own investigation into violent crimes committed by
the gang. Rojas and Loaiza also had Pico Viejo-related tattoos.
Photographs showed Munoz, with Loaiza, Rojas, and others,
making Pico Viejo gang signs.



                                 8
protect their borders.” Moreover, the gang members were acting
together, looking for rivals. Such conduct would instill fear in the
community and in gang rivals, thereby making them afraid to
report crimes to police, “further[ing] the stranglehold that gangs
and gang violence have in the community.”
      b. Defense evidence
         (i) Testimony from witnesses at Streamland Park
      Robert Mendoza and Savaltore Dominic Mendoza 8 were
both at Streamland Park on the evening of June 26, 2015, 9
preparing the baseball fields for a tournament the next morning.
Mariah Ginez and her boyfriend were also at the park at that
time. Robert saw a male Hispanic walking around the park,
apparently looking for something. Shortly thereafter, a maroon
SUV pulled into the parking lot. Two Hispanic men exited the
SUV and began “hanging out” with the first man at the baseball
diamond’s backstop. One of the men asked Robert whether there
were any games that night, whether Robert knew a former Little
League president, and whether anyone from Pico Viejo was at the
park. Robert said only the Little League coaches were present.
The men returned to the SUV. Shortly thereafter, one of the men
returned to the field with a baseball bat and yelled, “ ‘Are you
guys from Pico Viejo?’ ” Robert and Savaltore ignored them and
moved to another area of the field. Savaltore phoned his wife and


8      For ease of reference, and with no disrespect, we
hereinafter refer to Robert Mendoza and Savaltore Mendoza by
their first names.
9     Although the witnesses did not testify to the precise date in
June, there is no dispute that their testimony related to June 26,
2015, the date of the shooting.



                                 9
asked her to call 911. The SUV picked up the man with the bat,
and “peeled out” of the parking lot.
        Ginez observed a man at the top of a small hill on the back
side of the park. The driver of the SUV yelled at the man on the
hill, “this is my barrio,” or similar words. The men seemed to be
arguing, and the man from the SUV said, “let’s go one-on-one.”
However, the man from the SUV did not attempt to run up the
hill after the other individual.
        According to Robert and Savaltore, other than the baseball
bat, the men from the SUV did not have any visible weapons, nor,
according to Ginez, did the man who yelled at the person on the
small hill.
        Within five to 10 minutes, Robert, Savaltore, and Ginez
heard gunshots nearby.
           (ii) Rojas’s testimony
        Rojas testified in his own defense. His family had
longstanding ties to the Pico Viejo gang. In June 2015 he and his
family were living in Bell Gardens. On the night of the shooting,
Loaiza called Rojas and said he was at Streamland Park to meet
a girl, but did not feel safe and thought it might be a set up.
Rojas drove to the park and located Loaiza, who was with Munoz.
Rojas picked both men up and began driving home. When he
made a right turn onto Rosemead, he saw a burgundy SUV on
the shoulder. Loaiza said, “ ‘Those are those fools right there.’ ”
As Rojas neared the SUV, he saw the SUV’s windows rolling
down. Rojas “hit the gas.” Almost immediately, Rojas heard
gunshots and ducked. He could not tell whether the shots came
from inside or outside of his vehicle. He continued down
Rosemead Boulevard and saw, in his rearview mirror, that the
other car was behind him, driving fast. Rojas sped up and lost




                                10
control of his car, which plunged down an embankment, flipping
several times. He had not been looking for anyone when he
pulled onto Rosemead Boulevard; he had been planning to drive
home. When Arredondo approached to help, he told her to leave
because “we just got chased.” He fled the scene because he was
scared. He had gone to the park to protect his little brother; he
had not come prepared for violence; he had not known, and had
no reason to believe, that Loaiza had a weapon or that there were
guns in the car. He denied being an active gang member, but
admitted a prior association with the Pico Viejo gang.
       2. Procedure
       The jury found Munoz guilty of the attempted willful,
deliberate, and premeditated murders of Carrillo and Espindola
(§§ 664, subd. (a), 187, subd. (a)) and of shooting at an occupied
motor vehicle (§ 246). 10 As to each offense, the jury further found
Munoz personally and intentionally used and discharged a
firearm (§ 12022.53, subds. (b), (c)); a principal personally and
intentionally used and discharged a firearm, proximately causing
great bodily injury to Carrillo (§ 12022.53, subds. (b), (c), (d),
(e)(1)); and the offenses were committed for the benefit of, at the
direction of, or in association with, a criminal street gang
(§ 186.22, subd. (b)(1)(C)). 11 The trial court sentenced Munoz to
two consecutive life terms, plus 50 years to life. It ordered him to


10   Although there were four passengers in the Yukon, the
People charged only two counts of attempted murder.
11    The jury found Rojas not guilty of shooting at an occupied
motor vehicle. It deadlocked on the vehicular manslaughter and
attempted murder charges alleged as to Rojas, and the trial court
declared a mistrial on those counts.



                                11
pay victim restitution and imposed a restitution fine, a
suspended parole revocation restitution fine, a court operations
assessment, and a criminal conviction assessment. As noted, we
affirmed Munoz’s convictions, but vacated his sentence and
remanded for resentencing. Our Supreme Court granted review
and has transferred the matter back to us with directions to
reconsider the matter in light of Senate Bill 1437.
                           DISCUSSION
       [[1. The evidence was sufficient to support the jury’s finding
that the attempted murders were willful, premeditated, and
deliberate
       Munoz contends the evidence was insufficient to support
the jury’s findings that the attempted murders were willful,
deliberate, and premeditated. He argues that the “overwhelming
force of the evidence” showed nothing more than a spontaneous
and impulsive shooting occurring when Munoz’s group
unexpectedly encountered Espindola’s group in the SUV. We
disagree.
       When determining whether the evidence was sufficient to
sustain a criminal conviction, we “ ‘ “review the whole record in
the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.]” ’ ” (People v. Salazar (2016) 63
Cal.4th 214, 242.) We presume in support of the judgment the
existence of every fact the trier of fact could reasonably deduce
from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.)
Reversal is not warranted unless it appears “ ‘ “that upon no
hypothesis whatever is there sufficient substantial evidence to




                                 12
support” ’ the jury’s verdict.” (People v. Zamudio (2008)
43 Cal.4th 327, 357.) The same standard of review applies when
the prosecution relies primarily on circumstantial evidence.
(Salazar, at p. 242.)
       Attempted murder requires the specific intent to kill and
commission of a direct but ineffectual act toward accomplishing
the intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229.)
Premeditation and deliberation require more than a showing of
intent to kill. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.)
An attempted murder is premeditated and deliberate when it
occurs as the result of preexisting thought and reflection, rather
than an unconsidered or rash impulse. (People v. Pearson (2013)
56 Cal.4th 393, 443; People v. Burney (2009) 47 Cal.4th 203, 235.)
“Deliberate” means formed, arrived at, or determined upon as a
result of careful thought and weighing of considerations for and
against the proposed course of action. (People v. Houston (2012)
54 Cal.4th 1186, 1216.) “Premeditation” means thought over in
advance. (People v. Solomon (2010) 49 Cal.4th 792, 812; People v.
Disa (2016) 1 Cal.App.5th 654, 664.) However, to prove a killing
was premeditated and deliberate, it is “ ‘not . . . necessary to
prove the defendant maturely and meaningfully reflected upon
the gravity of his or her act.’ [Citation.]” (Disa, at p. 665.) The
“ ‘ “process of premeditation and deliberation does not require
any extended period of time.” ’ ” (People v. Salazar, supra,
63 Cal.4th at p. 245.) “ ‘ “ ‘The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .’ [Citations.]”
[Citation.]’ ” (Houston, at p. 1216.)




                                13
       A reviewing court typically considers three categories of
evidence when determining whether a finding of premeditation
and deliberation is adequately supported: planning activity,
motive, and manner of killing. (People v. Houston, supra,
54 Cal.4th at p. 1216; People v. Anderson (1968) 70 Cal.2d 15, 26–
27; People v. Gonzalez (2012) 54 Cal.4th 643, 663–664.) These so-
called Anderson factors are not exclusive, but are a framework to
guide the assessment of whether the evidence supports an
inference that the killing occurred as the result of preexisting
reflection rather than unconsidered or rash impulse. (People v.
Gonzalez, at p. 663; People v. Solomon, supra, 49 Cal.4th at
p. 812.)
       Here, there was evidence of all three Anderson factors.
First, the evidence demonstrated a motive for the shooting.
Munoz and Loaiza were members of the Pico Viejo gang, and
Espindola, Carrillo, and Perez were members of Pico Viejo’s
“bitter enem[y],” Brown Authority. In his conversation with the
confidential informant, Munoz stated he believed the victims
were Brown Authority members, who had chased or shot at his
cousin, Loaiza. The gang expert testified that gang members are
expected to protect their territory, including “eliminating rivals
in their territory.” Both gangs claimed Streamland Park as their
territory. (See People v. Romero (2008) 44 Cal.4th 386, 401
[evidence of motive shown where victim and defendant were
members of rival gangs, and killing a gang rival would elevate
the killer’s status]; People v. Martinez (2003) 113 Cal.App.4th
400, 413 [motive for shooting involved gang rivalry]; People v.
Rand (1995) 37 Cal.App.4th 999, 1001; People v. Wells (1988) 199
Cal.App.3d 535, 541 [gang rivalry was motive for shooting where
defendant and victim were members of rival gangs].)




                               14
       Second, there was evidence of planning, in that both Loaiza
and Munoz brought loaded guns with them in the car. (People v.
Salazar, supra, 63 Cal.4th at p. 245 [“defendant brought a loaded
gun with him to the Beef Bowl, demonstrating preparation”];
People v. Lee (2011) 51 Cal.4th 620, 636 [“defendant brought a
loaded handgun with him on the night [of the killing], indicating
he had considered the possibility of a violent encounter”]; People
v. Romero, supra, 44 Cal.4th at p. 401 [evidence of planning
shown by facts defendant brought gun to a store and shot victim
in the back of the head]; People v. Wells, supra, 199 Cal.App.3d at
pp. 540–541 [carrying concealed, loaded handgun “is consistent
with intent to kill a rival gang member even it if does not provide
solid evidence of prior planning to kill this particular victim”].)
       And, third, the manner of killing showed premeditation.
Loaiza fired multiple shots directly at the victims’ vehicle; Munoz
attempted to do so, but his gun jammed. Thus, the men acted in
concert to attack their perceived enemies. According to
Espindola’s statements, the shooting was an ambush, and
according to both him and Carrillo, no one in the SUV shot at the
Mitsubishi or had a gun. This account was corroborated by the
fact that the SUV was hit with multiple bullets, whereas the
Mitsubishi was not. (See People v. Bolin (1998) 18 Cal.4th 297,
332 [firing multiple gunshots at victims supported finding of
premeditation]; cf. People v. Romero, supra, 44 Cal.4th at p. 401
[evidence of execution style killing, without a struggle by the
victim, indicates premeditation and deliberation].) This
unprovoked shooting at close range suggested premeditation and
deliberation. In short, the evidence was sufficient. (See People v.
Romero, at p. 401; People v. Boatman (2013) 221 Cal.App.4th
1253, 1266.)




                                15
       Munoz argues that the “only evidence” relating to his and
Loaiza’s actions immediately preceding the shooting was Rojas’s
testimony that he picked the men up and they unexpectedly
encountered the SUV; there was “basically no evidence” of
planning; and the shooting was “spontaneous” and reflexive. Not
so. Munoz’s statements to the confidential informant suggested
the encounter was not unexpected: his group went looking for the
Brown Authority gang rivals who had accosted Loaiza, or at the
very least, recognized them and shot when the two cars passed
by. Loaiza’s statement upon seeing the SUV, “ ‘those are those
fools right there,’ ” likewise demonstrated such recognition. The
fact both Munoz and Loaiza coordinated the attack was
inconsistent with a finding the shooting was unplanned and
spontaneous, as was the fact they each brought a loaded gun in
the car. Further, Espindola testified his group was unarmed and
did not shoot, undercutting the argument that Munoz’s and
Loaiza’s actions were simply reflexive. Even assuming Munoz’s
group was not seeking out Espindola’s group, the evidence was
sufficient to show that, once they happened upon them, the
shooting was premeditated, willful, and deliberate.
“Premeditation can be established in the context of a gang
shooting even though the time between the sighting of the victim
and the actual shooting is very brief.” (People v. Sanchez (2001)
26 Cal.4th 834, 849; People v. Rand, supra, 37 Cal.App.4th at
pp. 1001–1002 [sufficient evidence of premeditation where
defendant committed a drive-by shooting, aiming at stranded
persons whom he believed were rival gang members; “[t]he law
does not require that an action be planned for any great period of
time in advance” and a “ ‘cold and calculating decision to kill can
be arrived at very quickly’ ”].)




                                16
       2. The trial court did not commit instructional error
             a. Additional facts and contentions
       Munoz argues that the trial court misinstructed the jury
regarding the mental state required for an aider and abettor
convicted of premeditated attempted murder under the natural
and probable consequences doctrine.
       The prosecutor argued that Munoz could be found guilty of
premeditated attempted murder if he personally committed the
premeditated attempted murders of the victims, or, alternatively,
if he aided and abetted the target crime of firing at an occupied
vehicle and attempted murder was a natural and probable
consequence of that offense. As to the premeditation allegation,
the prosecutor explained, “What you’re looking at is not just
whether the individual defendant formed that specific intent but
whether any of the principals, meaning defendant Rojas,
defendant Munoz, or the decedent, Jonathan Loaiza, committed
that attempted murder with specifically the intent to do so
willfully, deliberately, and with premeditation.”
       The trial court instructed the jury on attempted murder,
aiding and abetting, the natural and probable consequences
doctrine, and premeditation and deliberation. Consistent with
the prosecutor’s argument, CALCRIM No. 601 stated that, to
establish the premeditation allegation, the People had to prove
that either Munoz, Rojas or Loaiza, or all of them, committed the
attempted murder willfully and with deliberation and
premeditation. 12


12     CALCRIM No. 402 stated, in pertinent part: “To prove that
the defendant is guilty of attempted murder under the doctrine of
natural and probable consequences, the People must prove that:
[¶] 1. The defendant is guilty of shooting at an occupied vehicle;


                               17
       Munoz complains that the jury should have been instructed
that the premeditation allegation could be found true as to him
only if premeditated attempted murder—rather than
unpremeditated attempted murder—was a natural and probable
consequence of the target offense of shooting at an occupied motor
vehicle. He argues that this purported flaw in the instructions
eliminated an element from the jury’s consideration in violation


[¶] 2. During the commission of shooting at an occupied vehicle a
coparticipant in that shooting at an occupied vehicle committed
the crime of attempted murder; [¶] AND [¶] 3. Under all of the
circumstances, a reasonable person in the defendant’s position
would have known that the commission of attempted murder was
a natural and probable consequence of the commission of the
shooting at an occupied vehicle. [¶] . . . [¶] A natural and
probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes.” (Italics
added.)

      CALCRIM No. 601 stated, in pertinent part: “If you find
the defendant guilty of attempted murder under Count 1 and/or
Count 2, you must then decide whether the People have proved
the additional allegation that the attempted murder was done
willfully, and with deliberation and premeditation. [¶] The
defendant or Jonathan Loaiza acted willfully if he intended to kill
when he acted. The defendant or Jonathan Loaiza deliberated if
he carefully weighed the considerations for and against his choice
and, knowing the consequences, decided to kill. The defendant or
Jonathan Loaiza acted with premeditation if he decided to kill
before completing the acts of attempted murder. [¶] The
attempted murder was done willfully and with deliberation and
premeditation if either one of the defendant [sic] or Jonathan
Loaiza or all of them acted with that state of mind.” (Italics
added.)



                                18
of his Sixth and Fourteenth Amendment rights. Because it is
unclear, based on the record, including the verdict forms, which
theory the jury relied upon in rendering its verdict, he contends
the purported instructional error requires reversal of the jury’s
findings that the two attempted murders were premeditated,
willful, and deliberate.
             b. Standard of review and applicable legal principles
       A trial court has the duty to instruct the jury on the
general principles of law relevant to the issues raised by the
evidence and necessary for the jury’s understanding of the case.
(People v. Townsel (2016) 63 Cal.4th 25, 58.) We independently
determine whether the instructions given were correct and
adequate. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088;
People v. Riley (2010) 185 Cal.App.4th 754, 767.)
       As we explain in the published portion of this opinion, after
Munoz was tried and sentenced, the Legislature amended the law
as it pertains to the natural and probable consequences doctrine.
(Sen. Bill 1437, Stats. 2018, ch. 1015, §§ 2―3.) Because we
determine post that these amendments do not retroactively apply
to Munoz, Senate Bill 1437 does not affect our analysis of his
instructional error claims, and we consider the law as it stood at
the time of trial.
       Prior to enactment of Senate Bill 1437, there were “two
distinct forms of culpability for aiders and abettors.” (People v.
Chiu (2014) 59 Cal.4th 155, 158 (Chiu).) First, to be liable as a
direct aider and abettor to murder, the prosecution must show
the defendant aided or encouraged the commission of the murder
with knowledge of the perpetrator’s unlawful purpose, and with
the intent or purpose of committing, encouraging, or facilitating
its commission. (Id. at pp. 166–167.) Consequently, the aider




                                19
and abettor must have had the intent to kill. (People v. Lee
(2003) 31 Cal.4th 613, 624 (Lee).) Second, under the law as it
previously stood, under the natural and probable consequences
doctrine, a “ ‘ “person who knowingly aids and abets criminal
conduct is guilty of not only the intended crime [target offense]
but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of
the intended crime,” ’ ” that is, that was reasonably foreseeable.
(Chiu, at p. 161.) “ ‘Thus, for example, if a person aids and abets
only an intended assault, but a murder results, that person may
be guilty of that murder, even if unintended, if it is a natural and
probable consequence of the intended assault.’ ” (Ibid.)
       In Lee, the defendant, who was tried for attempted,
premeditated murder as a direct aider and abettor, argued
section 664 13 required that an attempted murderer must
personally act with willfulness, deliberation, and premeditation,
and that the trial court erred by failing to so instruct the jury.
(Lee, supra, 31 Cal.4th at pp. 616, 618, 621–623.) The Lee court
disagreed, concluding that based on the statutory language,
“section 664(a) properly must be interpreted to require only that
the murder attempted was willful, deliberate, and premeditated,
but not to require that an attempted murderer personally acted
willfully and with deliberation and premeditation, even if he or
she is guilty as an aider and abettor.” (Id. at p. 616.)

13    Under section 664, subdivision (a), a person guilty of
attempted murder generally will be punished by a term of five,
seven, or nine years. However, if the People plead and prove that
the attempted murder was willful, deliberate, and premeditated,
the punishment is life in prison. (Lee, supra, 31 Cal.4th at p. 616;
People v. Gallardo (2017) 18 Cal.App.5th 51, 82 (Gallardo).)



                                 20
        People v. Favor (2012) 54 Cal.4th 868, came to the same
conclusion when a defendant was tried under the natural and
probable consequences theory, holding that “the jury need not be
instructed that a premeditated attempt to murder must have
been a natural and probable consequence of the target offense.”
(Id. at p. 872.) Favor reasoned that section 664, subdivision (a),
did not create a greater degree of attempted murder, but
constituted a penalty provision that prescribes an increased
punishment. (Favor, at pp. 876–877.) The court explained:
“Because section 664(a) ‘requires only that the attempted murder
itself was willful, deliberate, and premeditated’ [citation], it is
only necessary that the attempted murder ‘be committed by one
of the perpetrators with the requisite state of mind.’ [Citation.]
. . . [W]ith respect to the natural and probable consequences
doctrine as applied to the premeditation allegation under section
664(a), attempted murder—not attempted premeditated
murder—qualifies as the nontarget offense to which the jury
must find foreseeability. Accordingly, once the jury finds that an
aider and abettor, in general or under the natural and probable
consequences doctrine, has committed an attempted murder, it
separately determines whether the attempted murder was
willful, deliberate, and premeditated. [¶] 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.” (Favor, at pp. 879–880.)




                                21
              c. The instructions given were not erroneous
       In light of the foregoing, it is clear the trial court did not
commit instructional error. Attempted murder—not attempted
premeditated murder—qualified as the nontarget offense, and
the jury need not be instructed that a premeditated attempt to
murder must have been a natural and probable consequence of
the target offense. (Favor, supra, 54 Cal.4th at p. 872.)
       Munoz acknowledges that Favor is “directly on point” and
would normally compel rejection of his argument. However, he
contends Favor has been undermined by the United States
Supreme Court’s opinion in Alleyne v. United States (2013) 570
U.S. 99 (Alleyne) and by our Supreme Court’s decision in Chiu.
       Alleyne held, based on Apprendi v. New Jersey (2000) 530
U.S. 466, that any fact that increases the penalty for a crime is
an element and must be submitted to the jury and found true
beyond a reasonable doubt. (Alleyne, supra, 570 U.S. at p. 103.)
The high court explained, “When a finding of fact alters the
legally prescribed punishment so as to aggravate it, the fact
necessarily forms a constituent part of a new offense and must be
submitted to the jury.” (Id. at p. 114.)
       Subsequently, Chiu held that “an aider and abettor may
not be convicted of first degree premeditated murder under the
natural and probable consequences doctrine. Rather, his or her
liability for that crime must be based on direct aiding and
abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158–159.)
The court reasoned that in the context of murder, the natural and
probable consequences doctrine serves the policy goal of deterring
aiders and abettors from encouraging the commission of offenses
that would naturally, probably, and foreseeably result in an
unlawful killing. (Id. at p. 165.) This policy goal, however, loses




                                 22
its force in the context of a defendant’s liability as an aider and
abettor to a first degree premeditated murder, for at least two
reasons: the premeditative mental state is “uniquely subjective
and personal,” and the resultant harm is the same regardless of
whether the perpetrator premeditated. (Id. at p. 166.) Chiu
concluded that “punishment for second degree murder is
commensurate with a defendant’s culpability for aiding and
abetting a target crime” based on the natural and probable
consequences doctrine. (Ibid.) Chiu declined to overrule Favor,
distinguishing it instead on the basis that (1) premeditation and
deliberation are elements of first degree murder, whereas
premeditation and deliberation simply increase the penalty for
attempted premeditated murder; (2) Favor, but not Chiu,
involved a question of legislative intent; and (3) the consequences
of imposing liability for premeditated attempted murder are less
severe than for first degree premeditated murder. (Chiu, at
p. 163.)
       Munoz argues that, in light of Alleyne, Favor’s reasoning
that section 664, subdivision (a) is merely a penalty provision,
rather than the functional equivalent of a greater offense, cannot
stand. Further, he avers that the bases upon which Chiu
distinguished Favor are “clearly contrary to Alleyne’s reasoning
and holding.”
       We reject Munoz’s argument for two reasons. As People v.
Gallardo, supra, 18 Cal.App.5th 51 explained: “Alleyne was
decided approximately one year before Chiu. Although Chiu
addressed Lee and Favor at length, it did not mention Alleyne, or
provide any indication that Alleyne had undermined its prior
holdings in those cases. We presume the Supreme Court was
aware of Alleyne when it issued Chiu. [¶] Moreover, at least as




                                23
applied in this case, we fail to see how section 664, subdivision
(a)’s sentencing enhancement for attempted premeditated
murder violates the rule of Alleyne. Under the statute, a
defendant cannot be subjected to the enhanced penalty provision
unless the jury finds two facts beyond a reasonable doubt: (1) the
defendant committed an attempted murder; and (2) the
defendant or his accomplice committed the attempted murder
with premeditation. . . . Thus, an enhanced penalty cannot be
imposed under section 664, subdivision (a) unless the jury makes
a true finding on the question of premeditation.” (Id. at pp. 85–
86, fn. omitted.) We agree with Gallardo’s reasoning and adopt it
here.
       Second, and more fundamentally, at present Favor remains
good law. Our Supreme Court previously granted review in
People v. Mateo, supra, S232674, to consider the following issue:
“In order to convict an aider and abettor of attempted willful,
deliberate and premeditated murder under the natural and
probable consequences doctrine, must a premeditated attempt to
murder have been a natural and probable consequence of the
target offense? In other words, should People v. Favor (2012)
54 Cal.4th 868 be reconsidered in light of Alleyne v. United States
(2013) __ U.S. __ [113 S.Ct. 2151] and People v. Chiu (2014)
59 Cal.4th 155?” (<http://appellatecases.courtinfo.ca.gov> [as of
Sep. 6, 2019].) The court subsequently transferred the matter
back to the Court of Appeal with directions to vacate its decision
and reconsider the cause in light of Senate Bill 1437, without
deciding the issue. Therefore, the question posed in Mateo
remains unanswered. Unless and until our Supreme Court




                                24
overrules Favor, it precludes Munoz’s argument. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 14]]
       3. Senate Bill 1437
       Senate Bill 1437, which took effect on January 1, 2019,
“addresses certain aspects of California law regarding felony
murder and the natural and probable consequences doctrine[.]”
(People v. Martinez (2019) 31 Cal.App.5th 719, 722 (Martinez).)
Prior to Senate Bill 1437’s enactment, a person who knowingly
aided and abetted a crime, the natural and probable consequence
of which was murder or attempted murder, could be convicted of
not only the target crime but also of the resulting murder or
attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In
re R.G. (2019) 35 Cal.App.5th 141, 144.) “This was true
irrespective of whether the defendant harbored malice
aforethought. Liability was imposed ‘ “for the criminal harms
[the defendant] . . . naturally, probably, and foreseeably put in
motion.” [Citations.]’ [Citation.]” (In re R.G., at p. 144.) Aider
and abettor liability under the natural and probable
consequences doctrine was thus “vicarious in nature.” (Chiu, at
p. 164.)
       Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to
be convicted of murder, a principal must act with malice
aforethought; malice can no longer ‘be imputed to a person based
solely on [his or her] participation in a crime.’ (§ 188,
subd. (a)(3).)” (In re R.G., supra, 35 Cal.App.5th at p. 144.)
Senate Bill 1437 also amended section 189, which defines first
and second degree murder, by, among other things, adding


14    In light of our conclusion, we find it unnecessary to reach
the parties’ arguments regarding prejudice.



                                25
subdivision (e). Under that subdivision, a participant in
enumerated crimes is liable under the felony murder doctrine
only if he or she was the actual killer; or, with the intent to kill,
aided and abetted the actual killer in commission of first degree
murder; or was a major participant in the underlying felony and
acted with reckless indifference to human life. 15 (§ 189, subd. (e);
Stats. 2018, ch. 1015, § 3; People v. Lopez (Aug. 21, 2019,
B271516) [2019 Cal.App. Lexis 773, pp. *16―*17, *23―*24, &
fn. 9].) Senate Bill 1437 thus ensures that murder liability is not
imposed on a person who did not act with implied or express
malice, was 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, subds. (f), (g); People v. Anthony (2019) 32
Cal.App.5th 1102, 1147.)
       Senate Bill 1437 also added section 1170.95, which permits
persons convicted of murder under a felony murder or natural
and probable consequences theory to petition in the sentencing
court for vacation of their convictions and resentencing, if certain
conditions are met. (Stats. 2018, ch. 1015, § 4; Martinez, supra,
31 Cal.App.5th at p. 723.) An offender may file a section 1170.95
petition if (1) a complaint, information, or indictment was filed
against him or her “that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and
probable consequences doctrine”; (2) he or she was convicted of
first or second degree murder following a trial or plea; and
(3) under sections 188 or 189, as amended by Senate Bill 1437, he


15     Subdivision (e) is inapplicable when the victim is a peace
officer, under specified circumstances. (§ 189, subd. (f).)



                                 26
or she could not have been convicted of first or second degree
murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima
facie showing that he or she is entitled to relief, the trial court
must issue an order to show cause and, absent a waiver and
stipulation by the parties, hold a hearing “to determine whether
to vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not been previously . . .
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.” 16 (§ 1170.95, subds. (c), (d)(1);
Martinez, at pp. 723―724.) At that hearing, the prosecution has
the burden to prove beyond a reasonable doubt that the
petitioner is ineligible for resentencing. Both the prosecution and
the defense may rely on the record of conviction or may offer new
or additional evidence. (§ 1170.95, subd. (d)(3).) If the
prosecution “fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid.) If the murder
was charged generically, and no target offense was charged, the
petitioner’s conviction must be redesignated as the target offense
or underlying felony for resentencing purposes. (Id., subd. (e).)
       Relying on In re Estrada (1965) 63 Cal.2d 740 (Estrada),
Munoz contends that Senate Bill 1437’s ameliorative provisions
apply retroactively to him on direct appeal, and he is entitled to


16     Section 1170.95, subdivision (d)(2) provides that the
“parties may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated
and for resentencing.”



                                27
“seek relief through the direct appeal process rather than having
to submit to the . . . section 1170.95 petition process.” The People
disagree. They contend that (1) under Senate Bill 1437, a
defendant must seek relief via the section 1170.95 petitioning
procedure, rather than on direct appeal; and (2) Senate Bill 1437
applies only to persons convicted of murder, not attempted
murder. The People are correct on both points.
             a. Senate Bill 1437 does not apply retroactively to
cases pending on appeal
       Generally, penal statutes do not operate retroactively. (§ 3;
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307 (Lara);
People v. Brown (2012) 54 Cal.4th 314, 319, 324.) But, under the
rule of Estrada, a statute lessening punishment is presumed to
apply to cases that are not yet final on the statute’s effective date,
unless the Legislature clearly signals its intent to make the
amendment prospective, either by including an express saving
clause or its equivalent. (Estrada, supra, 63 Cal.2d at pp. 744,
745―748; Lara, at pp. 307―308; People v. DeHoyos (2018) 4
Cal.5th 594, 600 (DeHoyos); Martinez, supra, 31 Cal.App.5th at
pp. 724―725.)
       A petitioning procedure like that created by section 1170.95
amounts to just such an indication that the Legislature intended
an ameliorative provision to apply prospectively only. When the
Legislature creates a statutory procedure by which defendants
may avail themselves of a change in the law, that remedy must
be followed and relief is not available on direct appeal. As
several recent authorities recognize, this means that Senate Bill
1437 should “not be applied retroactively to nonfinal convictions
on direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.)




                                 28
       Proposition 36, the Three Strikes Reform Act of 2012, and
Proposition 47, the Safe Neighborhoods and Schools Act, both
created postconviction procedures by which defendants could seek
resentencing for offenses that, due to changes wrought by those
propositions, might be available to them. (§§ 1170.126, 1170.18.)
In People v. Conley (2016) 63 Cal.4th 646 (Conley) and DeHoyos,
supra, 4 Cal.5th 594, our Supreme Court concluded the new laws
were not retroactive on direct appeal. (Conley, at pp. 661―662;
DeHoyos, at p. 597.) The section 1170.126 and 1170.18
resentencing procedures did not distinguish between persons
serving final and nonfinal sentences, and resentencing was
subject to the trial court’s assessment of a defendant’s public
safety risk. (Conley, at pp. 657, 658; DeHoyos, at p. 603.) The
propositions were therefore not silent on the question of
retroactivity, and the Estrada presumption did not apply.
(Conley, at pp. 657―659; DeHoyos, at pp. 597, 602―603.)
       Martinez concluded the same is true in regard to Senate
Bill 1437. “The analytical framework animating the decisions in
Conley and DeHoyos is equally applicable here. Like Propositions
36 and 47, Senate Bill 1437 is not silent on the question of
retroactivity. Rather, it provides retroactivity rules in section
1170.95. The 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




                               29
nonfinal convictions, is a significant indication Senate Bill 1437
should not be applied retroactively to nonfinal convictions on
direct appeal.” (Martinez, supra, 31 Cal.App.5th at p. 727.) That
section 1170.95 provided the parties with the opportunity to “go
beyond the original record in the petition process, a step
unavailable on direct appeal,” also provided “strong evidence the
Legislature intended for persons seeking the ameliorative
benefits of Senate Bill 1437 to proceed via the petitioning
procedure. The provision permitting submission of additional
evidence also means Senate Bill 1437 does not categorically
provide a lesser punishment must apply in all cases, and it also
means defendants convicted under the old law are not necessarily
entitled to new trials. This, too, indicates the Legislature
intended convicted persons to proceed via section 1170.95’s
resentencing process rather than avail themselves of Senate Bill
1437’s ameliorative benefits on direct appeal.” (Martinez, at pp.
727―728; accord, People v. Lopez, supra, 2019 Cal.App. Lexis 773
at pp. *42―*45; In re R.G., supra, 35 Cal.App.5th at pp. 145―146;
People v. Anthony, supra, 32 Cal.App.5th at pp. 1147―1153; In re
Taylor (2019) 34 Cal.App.5th 543, 561―562.) We agree with the
foregoing analysis.
       Attempting to circumvent this result, Munoz argues that
the petition procedures implemented by Propositions 36 and 47
are different than that created by Senate Bill 1437. In enacting
Propositions 36 and 47, the electorate limited relief to statutorily
defined defendants, i.e., those who had not suffered disqualifying
convictions, and whom the trial court found would not present an
unreasonable risk to public safety if released. In contrast, he
argues, the Legislature intended Senate Bill 1437 to
unconditionally apply to “all natural and probable consequences




                                30
murder defendants.” Because no additional fact finding is
necessary to determine Senate Bill 1437 eligibility, he reasons,
Conley and DeHoyos are distinguishable.
       We disagree. As Martinez explained when rejecting one of
the same contentions, although section 1170.95 does not require a
dangerousness inquiry, neither Conley nor DeHoyos held that
inquiry was the “indispensable statutory feature on which the
result in those cases turned.” (Martinez, supra, 31 Cal.App.5th at
p. 728.) And, Munoz’s contention that no additional fact finding
is required in order to apply section 1170.95 is simply incorrect.
Senate Bill 1437 does not categorically provide that a lesser
punishment must apply in all cases. (Martinez, at p. 728; People
v. Anthony, supra, 32 Cal.App.5th at p. 1153 [Senate Bill 1437
“does not provide automatic retroactive relief to convicted
defendants any more than do Proposition 36 and Proposition
47”].) Instead, a trial court is required, when ruling on a section
1170.95 petition, to determine whether the petitioner could not
have been convicted of first or second degree murder under
sections 188 and 189, as amended by Senate Bill 1437.
(§ 1170.95, subds. (a)(3), (d)(3).) At the section 1170.95 hearing,
the People have the burden of proof—based on the record of
conviction or new or additional evidence—to show that the
petitioner is ineligible for relief. (§ 1170.95, subd. (d)(3).) This
procedure obviously requires factual findings on the question of
the nature and extent of the petitioner’s participation in the
crime or crimes. Reading the law as Munoz suggests would
bypass the section 1170.95 fact finding process that is, in most
cases, a predicate to relief under Senate Bill 1437. 17

17    If a court or a jury previously found the petitioner did not
act with reckless indifference to human life or was not a major


                                 31
       Munoz’s citation to a variety of cases in which the Estrada
presumption applied is unavailing. 18 None of these authorities
“involves or grapples with the legislative enactment of a specific
procedure for the consideration of retroactive relief of a change in
the law. They are thus inapposite.” (People v. Anthony, supra, 32
Cal.App.5th at p. 1155 & fn. 48.)
             b. Senate Bill 1437 does not apply to attempted
murder convictions
       Munoz is not entitled to relief pursuant to Senate Bill 1437
for a second reason: Senate Bill 1437 does not apply to the
offense of attempted murder. (See People v. Lopez, supra, 2019
Cal.App. Lexis 773 at pp. *24―*28.)
       In any case involving statutory interpretation, our
fundamental task is to determine the Legislature’s intent, so as
to effectuate the law’s purpose. We begin with an examination of
the statute’s words, giving them their usual and ordinary
meaning, because they generally provide the most reliable
indicator of legislative intent. (People v. Colbert (2019) 6 Cal.5th
596, 603; People v. Ruiz (2018) 4 Cal.5th 1100, 1105―1106.) If
not ambiguous, the plain meaning of the statutory language
controls, and we need go no further. (Colbert, at p. 603; Ruiz, at
p. 1106; In re C.H. (2011) 53 Cal.4th 94, 100, 107.) If the


participant in the felony, the trial court must vacate the
conviction and resentence the petitioner. (§ 1170.95,
subd. (d)(2).)
18    These cases include Lara, supra, 4 Cal.5th 299; People v.
Babylon (1985) 39 Cal.3d 719; People v. Rossi (1976) 18 Cal.3d
295; People v. Millan (2018) 20 Cal.App.5th 450; and People v.
Eagle (2016) 246 Cal.App.4th 275.



                                32
statutory language supports more than one reasonable
interpretation, we may look to extrinsic aids, including the
legislative history and the objects to be achieved by the
legislation. (Ruiz, at p. 1106.)
       As explained, Senate Bill 1437 amended two statutes,
sections 188 and 189, and added section 1170.95. The plain
language of each of these enactments compels the conclusion that
Senate Bill 1437 pertains only to murder, not attempted murder.
       Section 188, subdivision (a)(3), now states that “in order to
be convicted of murder, a principal in a crime shall act with
malice aforethought.” (Italics added.)
       Newly added subdivision (e) of section 189 provides that a
participant in enumerated offenses “in which a death occurs 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.”
(Italics added.)
       Subdivision (a) of newly added section 1170.95 states that a
“person convicted of felony murder or murder under a natural
and probable consequences theory” may petition to have his or her
“murder conviction vacated” and for resentencing. (Italics
added.) To establish entitlement to relief, the petitioner must
show he or she was charged with murder; was convicted of first
degree or second degree murder; and could not have been
convicted of first or second degree murder due to changes to
sections 188 or 189 wrought by Senate Bill 1437. (§ 1170.95,
subd. (a), italics added.) The remainder of section 1170.95
likewise speaks only in terms of murder, not attempted murder.




                                33
Thus, Senate Bill 1437 is not ambiguous; by its plain terms, it
does not extend to Munoz’s offense of attempted murder. (See
People v. Jillie (1992) 8 Cal.App.4th 960, 963 [“We do not find the
statute ambiguous. It expressly identifies the 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”].) Indeed, examining the plain statutory
language, our colleagues in Division Seven recently came to the
same conclusion. (People v. Lopez, supra, 2019 Cal.App. Lexis
773 at pp. *24―*26.)
       Munoz makes several attempts to sidestep the import of
the statutory language, but none is persuasive. He hypothesizes
that the omission of attempted murder from the bill was
inadvertent. The Legislature was primarily focused on the felony
murder rule, he asserts, and because there is no crime of
attempted felony murder, it simply neglected to include
attempted murder when addressing the natural and probable
consequences doctrine. (See People v. Billa (2003) 31 Cal.4th
1064, 1071, fn. 4 [“California has no crime of attempted felony
murder”]; People v. Brito (1991) 232 Cal.App.3d 316, 321.)
       It is true that the various committee analyses of the bill
focused primarily on the felony murder rule, but they also
mentioned the natural and probable consequences doctrine. (See,
e.g., Sen. Com. on Pub. Safety, Analysis of Sen. Bill No. 1437
(2017―2018 Reg. Sess.) April 24, 2018, p. 3; Sen. Rules Com., Off.
of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1437
(2017―2018 Reg. Sess.) as amended May 25, 2018, p. 3.) The
initial draft of the legislation included the provision that a
defendant could request resentencing when the charging
document allowed the prosecution to proceed on a theory of felony




                                34
murder or “murder under the natural and probable consequences
doctrine.” (Sen Bill. 1437, § 6 (2017―2018 Reg. Sess.) as
introduced Feb. 16, 2018.) People v. Lopez points out that a year
before Senate Bill 1437’s enactment, the Legislature adopted a
concurrent resolution recognizing that reform was needed “ ‘to
limit convictions and subsequent sentencing in both felony
murder cases and aider and abettor matters prosecuted under
[the] “natural and probable consequences” doctrine . . . .’ ”
(People v. Lopez, supra, 2019 Cal.App. Lexis 773 at p. *14 [citing
Senate Concurrent Resolution No. 48 (2017―2018 Reg. Sess.)
resolution chapter 175].) The resolution “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.’ ”
(People v. Lopez, at pp. *14―*15.)
       Given that the Legislature was clearly aware of the natural
and probable consequences doctrine, included it in the 2017
resolution and the original draft of the bill, and drafted Senate
Bill 1437 using clear statutory language, we cannot simply
assume the omission of attempted murder was a mistake. “We
are compelled to add language only in extreme cases where, as a
matter of law, we are convinced that the Legislature, through
inadvertence, failed to utilize the word or words which give
purpose to its pronouncements.” (People v. Buena Vista Mines,
Inc. (1996) 48 Cal.App.4th 1030, 1034; People v. Guzman (2005)
35 Cal.4th 577, 587 [we do not lightly assume drafting error].)
Where the words of the statute are clear, we are not at liberty to
add to or alter them to accomplish a purpose that is not apparent
on the face of the statute or in its legislative history. (People v.
Lightsey (2012) 54 Cal.4th 668, 692; Guzman, at p. 587 [inserting




                                35
additional language into a statute violates the cardinal rule of
statutory construction that courts must not add provisions to
statutes].) 19
      In a related vein, Munoz argues that the literal language of
Senate Bill 1437 should not be given effect because such an
interpretation would lead to absurd results and undermine the
Legislature’s intent. He posits that construing Senate Bill 1437
to apply to murder, but not attempted murder, will result in
“absurdly disparate” sentencing consequences for the same
conduct, with persons convicted of the lesser offense of attempted
murder serving longer sentences than those convicted of
murder. 20


19     In re R.G. recently concluded that section 1170.95’s
petitioning procedure is available to juveniles, even though
nothing in the text of Senate Bill 1437 expressly references
juveniles and section 1170.95 uses language not generally
applicable in juvenile proceedings. (In re R.G., supra, 35
Cal.App.5th at pp. 144, 146―147.) The court’s holding was
premised on several considerations specific to the juvenile law,
including, inter alia, that provisions of the Welfare and
Institutions Code specifically contemplate incorporating
substantive criminal laws into juvenile proceedings, and
excluding juveniles from section 1170.95’s reach could run afoul
of the requirement that a juvenile may not be held in physical
confinement for a period exceeding that which could be imposed
upon an adult convicted of the same offense. (In re R.G., at pp.
148―151.) We do not disagree with In re R.G., but as is readily
apparent, the considerations underpinning the decision there do
not apply here.
20    Munoz argues that attempted murder is a lesser included
offense of murder. (See People v. Davidson (2008) 159
Cal.App.4th 205, 210 [“Attempted murder is a lesser included


                                36
       Munoz is correct that the language of a statute should not
be given a literal meaning if doing so would result in absurd
consequences that the Legislature did not intend, or would
frustrate the purpose of the legislation as a whole. (See, e.g.,
Commission on Peace Officer Standards & Training v. Superior
Court (2007) 42 Cal.4th 278, 290; People v. Valencia (2017) 3
Cal.5th 347, 358, 362; Switzer v. Wood (2019) 35 Cal.App.5th 116,
129; People v. Morales (2019) 33 Cal.App.5th 800, 806 [the literal
meaning of the words of a statute may be disregarded to avoid
absurd results].) But these principles do not help Munoz because
it is apparent that the Legislature did intend to exclude
attempted murder from Senate Bill 1437’s reach, and the
consequences of that legislative choice are not clearly absurd.


offense of murder”]; In re Sylvester C. (2006) 137 Cal.App.4th 601,
609 [“California appellate courts have repeatedly accepted the
principle that attempt is a lesser included offense of any
completed crime”].) The People disagree, pointing to People v.
Bailey (2012) 54 Cal.4th 740, wherein our Supreme Court
observed: “ ‘[t]he law of “attempt” is complex and fraught with
intricacies and doctrinal divergences’ ” and is therefore not
subject to generalizations. (Id. at p. 753.) Despite In re Sylvester
C. and other cases, Bailey concluded that the principle that
attempt is a lesser included offense of any completed crime was
“not applicable . . . where the attempted offense includes a
particularized intent that goes beyond what is required by the
completed offense.” (Bailey, at pp. 752―753; see People v.
Fontenot (Aug. 26, 2019, S247044) [2019 Cal. Lexis 6238,
pp. *11―*12, *24―*25] [attempted kidnapping is not a lesser
included offense of completed kidnapping for purposes of section
207, subd. (a)].) We do not decide the question, but assume for
purposes of this appeal that attempted murder is a lesser
included offense of murder.



                                37
       First, all indications are that the exclusion of attempted
murder was intentional. The statute’s uncodified statement of
legislative findings and declarations provides: “(f) It is necessary
to amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life. [¶] (g) Except as stated in subdivision
(e) of Section 189 of the Penal Code, 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.” (Stats. 2018, ch. 1015, § 1,
italics added; People v. Canty (2004) 32 Cal.4th 1266, 1280
[statements of purpose and intent may be used as an aid in
construing legislation]; People v. Valencia, supra, 3 Cal.5th at
p. 362.) The repeated references to “murder,” and murder alone,
are telling. Even more significant is the statement that
amendment of the natural and probable consequences doctrine
was necessary “as it relates to murder.” This phrasing indicates
the express intent to exclude attempted murder from Senate Bill
1437’s reach.
       That the Legislature intentionally excluded attempted
murder is also shown by its use of the term “attempted” in section
189, subdivision (e). The Legislature expressly specified that the
underlying felony could be either completed or attempted. But, it
omitted the word “attempted” from the same sentence when
addressing the participant’s liability for murder. (§ 189, subd. (e)
[“A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable




                                38
for murder only if one of the following is proven,” italics added].)
“ ‘When the Legislature “has employed a term or phrase in one
place and excluded it in another, it should not be implied where
excluded.” ’ [Citation.]” (People v. Buycks (2018) 5 Cal.5th 857,
880; People v. Bland (2002) 28 Cal.4th 313, 337.) And, when the
Legislature wishes a statute to encompass both a completed
crime and an attempt, it knows how to say so. (See, e.g.,
§§ 12022.53, subd. (a)(18); 12022, subd. (a)(1); 667.5, subd. (c)(12);
1192.7, subd. (c)(22), (39).) The inescapable conclusion from the
foregoing is that the Legislature intended to exclude attempted
murder from Senate Bill 1437’s ambit.
       Nor is any absurdity apparent. Contrary to the central
premise underlying Munoz’s arguments, it is far from clear that
interpreting Senate Bill 1437 to apply to convictions for murder,
but not attempted murder, will always, or typically, result in
longer sentences for the latter. Senate Bill 1437 does not
mandate any particular punishment for either murder or
attempted murder. The penalties for these crimes are prescribed
in other statutes, and, as we explain in more detail in regard to
Munoz’s equal protection claim, the basic punishment for
attempted murder is far less severe than that imposed for
murder. (People v. Chiu, supra, 59 Cal.4th at p. 163; §§ 664,
subd. (a), 190, subd. (a).) Nor does applying the statute’s plain
language undermine the primary legislative goal of making
punishment commensurate with culpability, because the
punishment for attempted murder was already, prior to Senate
Bill 1437’s enactment, less than that imposed for murder.
      It is possible that, due to variables such as the applicability
of sentencing enhancements, an attempted murderer could be
punished with a sentence lengthier than that conceivably




                                 39
imposed on a murderer who obtained section 1170.95 relief. But
this fact does not trigger application of the absurdity exception.
The “absurdity exception requires much more than [a] showing
that troubling consequences may potentially result if the
statute’s plain meaning were followed or that a different
approach would have been wiser or better. [Citations.] Rather,
‘[t]o justify departing from a literal reading of a clearly worded
statute, the results produced must be so unreasonable the
Legislature could not have intended them.’ [Citation.] Moreover,
our courts have wisely cautioned that the absurdity exception to
the plain meaning rule ‘should be used most sparingly by the
judiciary and only in extreme cases else we violate the separation
of powers principle of government. [Citation.] We do not sit as a
“super-legislature.” [Citation.]’ [Citation.]” (Switzer v. Wood,
supra, 35 Cal.App.5th at p. 129; People v. Morales, supra, 33
Cal.App.5th at p. 806 [the absurdity doctrine should be used only
in extreme cases]; People v. Schoop (2012) 212 Cal.App.4th 457,
470.)
        In support of his contention that denying Senate Bill 1437
relief to attempted murderers is absurd, Munoz relies primarily
upon People v. King (1993) 5 Cal.4th 59 (King) and People v.
Barrajas (1998) 62 Cal.App.4th 926. In King, the court
confronted a “sentencing anomaly” in which “a literal
interpretation of interrelated statutes would have meant that
some juveniles convicted of first degree murder would be eligible
to be committed to the former California Youth Authority (CYA)
rather than sentenced to state prison, but the same juveniles who
merely attempted to commit first degree murder would be
ineligible for such a commitment.” (People v. Cook (2015) 60
Cal.4th 922, 938, fn. 2 [summarizing King].) Under former




                               40
section 1731.5 of the Welfare and Institutions Code, juveniles
sentenced to imprisonment for life were ineligible for CYA
commitment. (King, at p. 65.) After the Supreme Court
interpreted “25 years to life” to be an indeterminate sentence,
making first degree murderers eligible for CYA placement, the
Legislature amended the Welfare and Institutions Code to
partially “overrule[ ]” that decision, making 18-year-old first
degree murderers ineligible, while impliedly reaffirming that first
degree murderers under 18 remained eligible. (Id. at pp. 66―67.)
Several years later, the Legislature amended the Penal Code to
punish attempted first degree murder with a term of “ ‘life with
the possibility of parole,’ ” language which was interpreted by
appellate courts to render attempted murderers of any age
ineligible. (Id. at pp. 65―67.) King held that the legislative
history showed an intent that “both successful and intended first
degree murderers under the age of 18” should be eligible. When
the Legislature amended the punishment for attempted murder,
“surely it did not intend to make attempted premeditated
murderers that age ineligible for the same commitment. It did
not intend a lesser included offense to have potentially harsher
penal consequences than the greater offense. Defendant should
not be penalized because one of his victims survived; he should
not be made to regret not applying the coup de grace to that
victim.” (Id. at pp. 67, 69.) This “clear legislative intent,” King
explained, “should prevail over any irrational result caused by
the amendment of different statutes in separate codes at different
times for unrelated purposes.” (Id. at p. 69.)
       King does not compel judicial amendment of Senate Bill
1437 for two reasons. First, Senate Bill 1437’s plain language is
not the result of a disjointed series of amendments over time, as




                                41
was the case in King, from which we might infer inadvertence or
irrationality. Instead, the relevant provisions are contained in a
single cohesive bill. (See People v. Lopez, supra, 2019 Cal.App.
Lexis 773 at pp. *29―*30.) Second, in King the effect of the series
of amendments and judicial interpretations was stark: first
degree murderers under 18 were eligible for CYA, whereas
persons of the same age who committed attempted murder were
not. Here, in contrast, Senate Bill 1437 does not mandate that
persons convicted of attempted murder are punished more
severely than persons convicted of murder. Attempted murderers
are statutorily subject to a lesser, not a greater, penalty than
murderers. Senate Bill 1437 does not require that attempted
murderers receive a harsher sentence, or prohibit them from
receiving a more lenient sentence, than murderers. On its face,
Senate Bill 1437 does not present the same clear-cut distinction
as in King.
       People v. Barrajas—in which the court found a drug
diversion statute applied to a defendant who had attempted to
possess methamphetamine, despite the fact the statutory scheme
listed possession, but not attempted possession, as a divertible
offense—is distinguishable for the same reason. (People v.
Barrajas, supra, 62 Cal.App.4th at pp. 928―930.) Senate
Bill 1437 does not preclude an attempted murderer from being
sentenced to a lesser term than a murderer. To the extent a
disparity might exist in an individual case, that circumstance is
not sufficient to render the plain language of the statute absurd.
(See Hale v. Superior Court (2014) 225 Cal.App.4th 268, 277 [“A
sentencing disparity does not necessarily render a statutory
scheme absurd because it is the Legislature’s prerogative to affix
punishment”].) The remedy for any potentially inequitable




                                42
operation of section 1170.95 lies with the Legislature. If the
Legislature concludes it is unwise or inequitable to exclude
attempted murderers from Senate Bill 1437’s reach, it has only to
amend the law.
             c. Equal protection
      Munoz next argues that construing Senate Bill 1437 to
apply to murder, but not attempted murder, would likely violate
the equal protection guarantees contained in the federal and
California Constitutions. (U.S. Const., 14th Amend., § 1; Cal.
Const., art. I, § 7, subd. (a).) Because courts should endeavor to
construe statutes so as to avoid constitutional issues, he argues,
Senate Bill 1437 should be interpreted to encompass attempted
murder. (See People v. Miracle (2018) 6 Cal.5th 318, 339 [a
statute “ ‘must be construed, if reasonably possible, in a manner
that avoids a serious constitutional question’ ”].) We detect no
constitutional infirmity.
                     (i) Munoz is not similarly situated to persons
convicted of murder
      Munoz fails to establish the first requirement for an equal
protection claim, i.e., that he is similarly situated to persons
convicted of murder. “ ‘The concept of equal protection recognizes
that persons who are similarly situated with respect to a law’s
legitimate purposes must be treated equally. [Citation.]
Accordingly, “ ‘[t]he first prerequisite to a meritorious claim
under the equal protection clause is a showing that the state has
adopted a classification that affects two or more similarly
situated groups in an unequal manner.’ ” [Citation.] “This initial
inquiry is not whether persons are similarly situated for all
purposes, but ‘whether they are similarly situated for purposes of
the law challenged.’ ” [Citation.]’ [Citation.]” (People v.
Valencia, supra, 3 Cal.5th at p. 376; People v. Wilkinson (2004) 33



                                43
Cal.4th 821, 836.) As relevant here, the equal protection
guarantees of the federal and state constitutions are
substantially equivalent and are analyzed in the same manner.
(People v. Chatman (2018) 4 Cal.5th 277, 287; People v. K.P.
(2018) 30 Cal.App.5th 331, 341; People v. Wolfe (2018) 20
Cal.App.5th 673, 686.)
       People v. Lopez recently concluded that persons convicted of
murder are not similarly situated to persons convicted of
attempted murder for purposes of Senate Bill 1437, and we agree.
(People v. Lopez, supra, 2019 Cal.App. Lexis 773 at pp. *34―*36.)
Attempted murder and murder are different offenses. (Id. at
p. *35; People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [an
attempt is a separate and distinct offense from the completed
crime].) Significantly, attempted murder is punished less
harshly than 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 . . . under the doctrine.” (People v. Lopez, at
pp. *35―*36.)
                   (ii) A rational basis exists for limiting Senate
Bill 1437 to persons convicted of murder
       Munoz’s equal protection claim also fails because he has
not shown the absence of a rational basis for the Legislature’s
decision to exclude from Senate Bill 1437’s reach persons
convicted of attempted murder.
       The constitutional guarantee of equal protection does not
prohibit the state from drawing distinctions between different
groups of individuals, but it requires that, at a minimum, such
classifications bear a rational relationship to a legitimate public




                                44
purpose. (In re J.M. (2019) 35 Cal.App.5th 999, 1010.) When the
law involves a suspect classification, such as race or national
origin, or affects a substantial right, it is subject to strict
scrutiny; the state must show it has a compelling interest
justifying the law and the distinctions drawn by the law are
necessary to effectuate its purpose. (People v. Chatman, supra,
4 Cal.5th at p. 288; People v. Wilkinson, supra, 33 Cal.4th at
p. 836; In re J.M., at p. 1010.)
       But “[w]here . . . a disputed statutory disparity implicates
no suspect class or fundamental right, ‘equal protection of the law
is denied only where there is no “rational relationship between
the disparity of treatment and some legitimate governmental
purpose.” ’ [Citation.]” (Johnson v. Department of Justice (2015)
60 Cal.4th 871, 881 (Johnson), italics added; People v. Wolfe,
supra, 20 Cal.App.5th at p. 689; People v. Bloomfield (2017) 13
Cal.App.5th 647, 658; People v. Mora (2013) 214 Cal.App.4th
1477, 1483 [where rational basis review applies, the statutory
classification withstands an equal protection challenge if there is
any reasonably conceivable state of facts that could provide a
rational basis for the classification].) Rational basis review “sets
a high bar before a law is deemed to lack even the minimal
rationality necessary for it to survive constitutional scrutiny.
Coupled with a rebuttable presumption that legislation is
constitutional, this high bar helps ensure that democratically
enacted laws are not invalidated merely based on a court’s
cursory conclusion that a statute’s tradeoffs seem unwise or
unfair.” (People v. Chatman, supra, 4 Cal.5th at p. 289.)
       Rational basis review applies here. A criminal defendant
does not have a fundamental interest in a specific term of
imprisonment or in the designation a particular crime receives.
(People v. Wilkinson, supra, 33 Cal.4th at p. 838; People v. Wolfe,
supra, 20 Cal.App.5th at p. 689; People v. Bloomfield, supra, 13



                                45
Cal.App.5th at p. 657; People v. Acosta (2015) 242 Cal.App.4th
521, 527.) For that reason, courts have repeatedly held that the
rational basis test applies to equal protection claims based on
sentencing disparities. (Wilkinson, at p. 838; Bloomfield, at
pp. 657―658; People v. Ward (2008) 167 Cal.App.4th 252, 258;
People v. Flores (1986) 178 Cal.App.3d 74, 88.) “[W]here 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” because the power to define crimes and fix
penalties is vested exclusively in the legislative branch. (People
v. K.P., supra, 30 Cal.App.5th at p. 343.) Thus, rational basis
review applies to Munoz’s equal protection claim. 21

21     People v. Olivas (1976) 17 Cal.3d 236, on which Munoz
relies, does not compel a different result. Olivas considered an
equal protection claim involving a statute that allowed juvenile
defendants, convicted in adult criminal proceedings, to be
committed to the CYA for terms longer than the jail terms they
would have received had they been sentenced as adults. (Id. at
pp. 239―242; People v. Wilkinson, supra, 33 Cal.4th at p. 837.)
Olivas concluded this disparity implicated a fundamental right—
personal liberty—triggering application of the strict scrutiny
standard. (Olivas, at pp. 250―251; Wilkinson, at p. 837.)
However, in Wilkinson, our Supreme Court “subsequently
rejected the argument that the Olivas decision means that strict
scrutiny is applied ‘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.’ [Citation.] Instead, the Supreme Court has said
that the rational basis test applies to equal protection challenges
based on sentencing disparities.” (People v. Ward, supra, 167
Cal.App.4th at p. 258; Wilkinson, at pp. 837―838; see People v.
Lopez, supra, 2019 Cal.App. Lexis 773 at pp. *36―*37; In re J.M.,


                                46
       The mere fact that different punishments may result from
application of section 1170.95 to murderers, but not attempted
murderers, is not dispositive. In applying the rational basis test,
“neither the existence of two identical criminal statutes
prescribing different levels of punishments, nor the exercise of a
prosecutor’s discretion in charging under one such statute and
not the other, violates equal protection principles.” (People v.
Wilkinson, supra, 33 Cal.4th at pp. 838―841 [statutory scheme
allowing battery on a custodial officer without injury to be
punished more severely than battery on a custodial officer with
injury did not violate equal protection principles]; People v. Romo
(1975) 14 Cal.3d 189, 196―197 [rejecting equal protection
challenge where assault could be punished more severely than
the greater offense of assault with the intent to commit murder];
People v. Morales, supra, 33 Cal.App.5th at p. 808 [imposing
harsher punishment for unlawfully driving a vehicle than for
theft of the same vehicle does not violate equal protection]; People
v. Acosta, supra, 242 Cal.App.4th at pp. 527―528 [no equal
protection violation where Proposition 47 allowed theft of a
vehicle valued under $950, but not attempted burglary of a
vehicle of the same value, to be reduced to a misdemeanor];
People v. Flores, supra, 178 Cal.App.3d at pp. 85―88 [no equal
protection violation where legislature did not divide crime of
attempted murder into degrees, allowing for the same
punishment to be imposed for attempted first degree murder and
attempted second degree murder].) The Legislature has



supra, 35 Cal.App.5th at pp. 1010―1011; People v. K.P., supra, 30
Cal.App.5th at pp. 342―343.)



                                47
considerable latitude in defining and setting the consequences of
criminal offenses. (Johnson, supra, 60 Cal.4th at p. 887.)
       Senate Bill 1437’s legislative history demonstrates that the
Legislature had a rational basis for excluding attempted murder
from section 1170.95. The statute’s uncodified declaration of
findings and intent reveals that in enacting Senate Bill 1437, the
Legislature was primarily concerned with making punishment
commensurate with a defendant’s individual culpability. The
Legislature stated, “There is a need for statutory changes to more
equitably sentence offenders in accordance with their
involvement in homicides,” and “[i]t is a bedrock principle of the
law and of equity that a person should be punished for his or her
actions according to his or her own level of individual
culpability.” (Stats. 2018, ch. 1015, § 1, subds. (b), (d).) “Reform
is needed in California to limit convictions and subsequent
sentencing 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 that
are not commensurate with the culpability of the individual.”
(Id., at subd. (e).) Thus, the Legislature’s dual intents—making
conviction and punishment commensurate with liability, and
reducing prison overcrowding by eliminating lengthy sentences
where unwarranted—dovetailed.
       When considering Senate Bill 1437, the Senate and
Assembly Appropriations Committees examined the potential
fiscal impact of the proposed law. They recognized that Senate
Bill 1437 would entail “potentially . . . major costs in the millions
of dollars” to allow courts to process and adjudicate resentencing
petitions, and potentially “major costs in the hundreds of
thousands of dollars to the millions of dollars” to allow the




                                 48
Department of Corrections and Rehabilitation to supervise and
transport inmates to resentencing hearings. (Sen. Com. on
Appropriations, Analysis of Sen. Bill 1437 (2017―2018 Reg. Sess.)
May 14, 2018, p. 1; Assem. Com. on Appropriations, Analysis of
Sen. Bill 1437 (2017―2018 Reg. Sess.) Aug. 8, 2018, p. 1; see also
Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis
of Sen. Bill 1437 (2017―2018 Reg. Sess.) May 29, 2018, p. 6.)
These costs, the Senate Committee recognized, would be
“dependent on the number of individuals who would file a
petition for resentencing pursuant to this bill.” (Sen. Com. on
Appropriations, May 14, 2018, supra, p. 1.) The Senate
Committee observed that, as of December 31, 2017, there were
14,473 inmates serving a term for a principal offense of first
degree murder, and 7,299 for second degree murder; it did not
include in its calculations the number of inmates serving terms
for attempted murder. (Sen. Com. on Appropriations, May 14,
2018, supra, p. 3.) The committee estimated that if only 10
percent of this population petitioned, additional costs to the state
would approximate $7.6 million in court costs, potentially
resulting in delayed court services and putting pressure on the
state’s General Fund. (Ibid.)
       Juxtaposed against this background, the Legislature could
take into account the fact that the punishment for attempted
murder is generally far less than the punishment imposed for
murder. First degree murder is punishable by death, life in
prison without the possibility of parole (LWOP), or 25 years to
life in prison. Where the sentence is 25 years to life, the
defendant is not eligible for parole until he or she has served 25
years. (People v. Chiu, supra, 59 Cal.4th at p. 163; § 190,
subds. (a), (e).) A defendant convicted of second degree murder




                                49
must serve a sentence of 15 years to life, with parole eligibility
after 15 years. (Chiu, at p. 163; § 190, subds. (a), (e).) If the
second degree murder was accomplished by intentionally
shooting a firearm from a motor vehicle at a person outside the
vehicle with the intent to inflict great bodily injury, the term is
20 years to life. (§ 190, subd. (d).)
       In contrast, attempted murder is punishable by a
determinate term of five, seven, or nine years. (People v. Chiu,
supra, 59 Cal.4th at p. 163; § 664, subd. (a).) If the jury finds an
attempted murder was premeditated and deliberate, the
defendant is subject to a sentence of life with the possibility of
parole, but is eligible for parole after serving a term of seven
years. 22 (Chiu, at p. 163; §§ 664, subd. (a), 3046, subd. (a)(1).)
Thus, contrary to Munoz’s argument, the base sentences imposed
upon persons convicted of murder and attempted murder are not
“absurdly disparate.”
       A successful Senate Bill 1437 petitioner’s criminal
culpability does not simply evaporate; a meritorious section
1170.95 petition is not a get-out-of-jail free card. Instead, the
petitioner is resentenced on the remaining convictions. If the
murder was charged “generically” and the target offense was not
charged, the murder conviction must be redesignated as the
target offense or underlying felony for resentencing purposes.
(§ 1170.95, subds. (d)(3), (e).) Accordingly, the Legislature could

22     The term for attempted murder is also increased to life
with the possibility of parole if the victim was a peace officer,
firefighter, or certain other custodial personnel, under specified
conditions. (§ 664, subd. (e).) The term for second degree murder
is likewise increased when the victim was a peace officer, under
certain conditions. (§ 190, subd. (c).)



                                 50
have taken into account that punishment for many of the target
crimes that tend to underlie natural and probable consequences
killings are comparable, or at least not extremely disparate, to
the base term for attempted murder. For example, carjacking
carries a sentence of three, five, or nine years. (§ 215, subd. (b).)
First degree robbery is punishable by a term of three, four, or six
years; that term increases to three, six, or nine years if the
defendant acts in concert with others and commits the robbery in
an inhabited dwelling. (§ 213, subd. (a)(1).) Assault with a
semiautomatic firearm carries a penalty of three, six, or nine
years. (§ 245, subd. (b).) Assault with a deadly weapon other
than a firearm may be punished by two, three, or four years.
(§ 245, subd. (a)(1).) The sentence for first degree burglary is two,
four, or six years. (§ 461, subd. (a).) And, for shooting at an
inhabited dwelling or at an occupied vehicle, or shooting from a
motor vehicle, a defendant can be punished with a prison term of
three, five, or seven years. (§§ 246, 26100, subd. (c).)
       Consider the following hypothetical defendants. Defendant
X participates in a carjacking in which a victim is killed.
Defendant X is not the actual killer and does not act with implied
malice or the intent to kill. He is convicted of first degree murder
on a natural and probable consequences theory, and qualifies for
section 1170.95 resentencing. He would then be sentenced on the
underlying felony, carjacking, with a potential high term of nine
years. Defendant Y, let us assume, participated in a comparable
carjacking. Like Defendant X, he is not the actual killer, and
does not act with implied malice or the intent to kill. The victim
in Defendant Y’s carjacking, however, survives. Defendant Y is
convicted of attempted murder on a natural and probable
consequences theory, and he is not eligible for section 1170.95




                                 51
resentencing. However, his sentence for the attempted murder
would be either five, seven, or nine years—comparable to
Defendant X’s nine-year term.
       Thus, balancing the costs involved, the fact the penalties
for attempted murder are less severe than for murder, and the
length of prison terms mandated for many potentially relevant
felonies, the Legislature could rationally have determined that
extending Senate Bill 1437 relief to attempted murderers would
put too great a strain on state resources, while resulting—in most
cases—in insignificant decreases in the sentences served for
attempted murder convictions. The Legislature could reasonably
conclude its aims could be achieved by limiting relief to persons
convicted of murder, but not attempted murder. “Preserving the
government’s financial integrity and resources is a legitimate
state interest.” (People v. Chatman, supra, 4 Cal.5th at p. 290; In
re C.B., supra, 6 Cal.5th at pp. 133―134; People v. Lopez, supra,
2019 Cal.App. Lexis 773 at pp. *39―*41; People v. Cruz (2012)
207 Cal.App.4th 664, 679.)
       Munoz contends that any additional costs to extend Senate
Bill 1437 to attempted murderers would have been offset by
savings recognized in reduced incarceration expenses. This
circumstance does not compel a finding of irrationality. Such cost
savings would only accrue if the petitions were successful; they
would also depend upon other variables, such as the term
ultimately imposed at resentencing and the time the inmate had
already served, both unknown quantities that the Legislature
was not required to spotlight in its analysis. In any event, when
applying the rational basis standard, “we cannot cast aside the
deferential nature of our inquiry.” (People v. Chatman, supra, 4
Cal.5th at p. 294.) We “ ‘accept any gross generalizations and




                                52
rough accommodations that the Legislature seems to have
made.’ ” (Johnson, supra, 60 Cal.4th at p. 887.) The rational
basis standard “ ‘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.” ’
[Citation.]” (Id. at p. 881; Chatman, at p. 289.)
       People v. Chatman is instructive. There, the court
considered an equal protection challenge to a statutory scheme in
which not all felons were eligible to receive certificates of
rehabilitation on an equal basis. (People v. Chatman, supra, 4
Cal.5th at p. 282.) A former probationer who succeeded in having
his or her conviction dismissed under section 1203.4 was
statutorily ineligible for such a certificate if he or she was
subsequently incarcerated. (Chatman, at p. 282.) “In contrast,
former prisoners—whether subsequently incarcerated or not—
face[d] no such restriction.” (Ibid.) Applying rational basis
review, Chatman found no equal protection violation. The court
explained: “while certificates provide substantial benefits to
rehabilitated felons, adjudicating eligibility for them depends on
the state’s expenditure of significant judicial and executive
branch resources. In providing this costly benefit only to former
prisoners and former probationers who have not been
subsequently incarcerated, the Legislature engaged in a line-
drawing that—while perhaps not emblematic of the ideal
rehabilitative system—embodies a sufficiently rational




                               53
determination regarding distribution of resources.” (Id. at
p. 283.) Moreover, former prisoners, as opposed to former
probationers, had a higher relative need for such certificates, in
that they were ineligible to have their convictions dismissed
under section 1203.4, and obtaining a certificate was their
primary avenue for relief. (Chatman, at pp. 283, 291.) “The
Legislature rationally could have taken into account former
probationers’ lower relative need for certificate of rehabilitation
relief when determining which group of petitioners to disqualify
from such relief for the sake of preserving government resources.”
(Id. at p. 291.)
       Here, the Legislature could have made a similarly rational
calculus. Like the certificate of rehabilitation process described
in Chatman, significant resources are necessary to effectuate the
Senate Bill 1437 resentencing process. Trial courts must
consider petitions; defendants are entitled to counsel; and
prosecutors must prepare and file responses. Section 1170.95
further contemplates, at least in some cases, a hearing at which
new evidence can be elicited. 23 In short, Senate Bill 1437
requires a potentially significant expenditure of judicial,
prosecutorial, and defense resources, not to mention the possible
burden on witnesses who may have to testify in matters they
believed to be long since concluded. The Legislature could also
have found that, in general, persons convicted of murder have a
greater relative need for relief due to the harsher punishments


23    We express no opinion on the specific workings of the
section 1170.95 resentencing procedure, such as when in the
process counsel must be appointed or the particular procedures
required at the evidentiary hearing.



                                54
mandated for murder, as opposed to attempted murder. Thus,
the legislative decision to extend Senate Bill 1437 relief to only a
subset of persons convicted under the natural and probable
consequences theory was not irrational. (See People v. Chatman,
supra, 4 Cal.5th at p. 292 [“This limited extension accomplished
the goal of increasing the number of people who can receive relief
from the effects of their convictions, while avoiding, in a manner
not inconsistent with rationality, high costs by not extending that
relief to all former probationers”].)
       We acknowledge that it is possible an attempted murderer,
who did not act with malice, could hypothetically receive a longer
sentence than if murder had resulted from commission of the
target crime. 24 But California’s sentencing scheme is complex;
any given sentence depends on a myriad of variables including
applicable enhancements, the number of victims, application of
section 654, exercise of the trial court’s discretion, and so on. We
do not believe that, to survive rational basis scrutiny, the
Legislature was required to finely calibrate Senate Bill 1437 to
take into account all possible sentencing permutations for all

24      Munoz avers that, had he been sentenced on only a single
conviction of shooting at an occupied motor vehicle in violation of
section 246, as he expects he would be if he qualified for relief
and was resentenced under section 1170.95, his sentence would
be no more than seven years for violation of section 246, plus a
10-year gang enhancement. Munoz’s calculations are incorrect.
At the very least, for the section 246 offense, the penalty is life
imprisonment, with a minimum term of no less than 15 years.
(§ 186.22, subd. (b)(4)(B); People v. Jones (2009) 47 Cal.4th 566,
572; People v. Brookfield (2009) 47 Cal.4th 583, 591.) However,
he appears to be correct that his current sentence exceeds that
which might be imposed if he were eligible for section 1170.95
relief.


                                55
possible defendants. “ ‘A classification is not arbitrary or
irrational simply because there is an “imperfect fit between
means and ends” ’ [citations], or ‘because it may be “to some
extent both underinclusive and overinclusive” ’ [citation].”
(Johnson, supra, 60 Cal.4th at p. 887; People v. Chatman, supra,
4 Cal.5th at pp. 290―291.) And, “ ‘[n]othing compels the state “to
choose between attacking every aspect of a problem or not
attacking the problem at all.” [Citation.] Far from having to
“solve all related ills at once” [citation], the Legislature has
“broad discretion” to proceed in an incremental and uneven
manner without necessarily engaging in arbitrary and unlawful
discrimination. [Citations.]’ ” (People v. Acosta, supra, 242
Cal.App.4th at pp. 527―528 [court had “no difficulty concluding
that the electorate could rationally extend misdemeanor
punishment to some nonviolent offenses but not to others, as a
means of testing whether Proposition 47 has a positive or
negative impact on the criminal justice system”].) “If a plausible
basis exists for the disparity, courts may not second-guess its
‘ “wisdom, fairness, or logic.” ’ [Citations.]” (Johnson, at p. 881;
see People v. Chatman, supra, 4 Cal.5th at p. 289.) Senate Bill
1437’s resentencing procedure is rationally related to the
Legislature’s stated purposes, and that is enough to survive
rational basis review.
       Munoz’s citations to Newland v. Board of Governors (1977)
19 Cal.3d 705, and People v. Schoop, supra, 212 Cal.App.4th 457,
do not assist him. Newland found an equal protection violation
where the law allowed an individual convicted of a felony sex
crime to obtain a certificate of rehabilitation, but a person who
was convicted of a misdemeanor sex crime could not. (Newland,
at pp. 707―708, 712―713.) Schoop found an equal protection




                                 56
violation where persons convicted of one statute were subject to a
10-year waiting period before applying for a certificate of
rehabilitation, whereas persons convicted of similar offenses had
to wait only seven years. (Schoop, at pp. 470―474.) In neither
case was a rational basis shown for the statutory distinctions.
Indeed, in Newland, the Attorney General did not even attempt
to offer a justification. (Newland, at p. 713.) Here, in contrast, a
rational basis exists.
       To the extent Munoz intends to claim that excluding
attempted murderers from section 1170.95’s petitioning
procedure violates equal protection principles as applied to him,
this contention necessarily fails. Munoz cannot show he would be
entitled to relief even if section 1170.95 applied to his offense of
attempted murder. A trial court considering a section 1170.95
petition must determine whether the petitioner “could not be
convicted of first or second degree murder because of changes to”
sections 188 and 189 made by Senate Bill 1437. (§ 1170.95,
subds. (a)(3), (d)(3).) As relevant here, Senate Bill 1437 amended
the law to provide that malice could not be imputed based solely
on a defendant’s participation in a crime. (§ 188, subd. (a)(3).)
       There is no possibility that the jury in this case convicted
Munoz based on a finding of imputed, as opposed to actual,
malice. Express malice exists when a defendant intends to kill.
(§ 188, subd. (a)(1); People v. Beltran (2013) 56 Cal.4th 935, 941.)
Munoz and decedent Loaiza were both passengers in Rojas’s car
when they committed the shooting. The jury found, and the
evidence showed, that Munoz personally and intentionally fired
at the Yukon. It also found that the attempted murders were
willful, premeditated and deliberate. The jury was instructed
that it could find premeditation and deliberation if either Munoz




                                57
or Loaiza premeditated and deliberated. The instruction advised
that Munoz or Loaiza acted willfully “if he intended to kill when
he acted.” Thus, the jury had to find that either Munoz, Loaiza,
or both of them, premeditated and deliberated the shooting, and
intended to kill. 25 Loaiza and Munoz engaged in nearly identical
conduct, simultaneously firing at the same vehicle, from the same
vantage point. Munoz was armed with a semiautomatic firearm
which contained a bullet in the chamber and a magazine
containing five live cartridges. However, the evidence showed the
gun jammed, precluding Munoz from firing more than one shot.
On these facts, there is no basis whatsoever upon which a
rational trier of fact could find Loaiza premeditated and intended
to kill, but Munoz did not. Their conduct was the same, and
there was no evidence suggesting Munoz might have had any less
culpable mental state. Accordingly, there is no possibility Munoz
could show he would be entitled to relief under section 1170.95,
even if it covered attempted murder. Any as-applied challenge to
Senate Bill 1437 therefore fails. 26




25    To the extent the instructions allowed the jury to consider
Rojas’s mental state, this circumstance is irrelevant at this
juncture. The jury deadlocked on the attempted murder charges
as to Rojas, demonstrating it could not have found Munoz
premeditated based on Rojas’s mental state.
26    We express no opinion on whether an as-applied equal
protection challenge to Senate Bill 1437’s exclusion of attempted
murder could ever succeed—we hold only that it does not prevail
here.



                               58
             [[d. California Constitution’s prohibition against
unusual punishment
       Munoz next argues that “denying the benefits” of Senate
Bill 1437 to persons convicted of attempted murder on a natural
and probable consequences theory “may engender ‘unusual
punishment’ considerations.” In support, he cites People v.
Schueren (1973) 10 Cal.3d 553 and People v. Wingo (1975) 14
Cal.3d 169, for the proposition that punishing a lesser included
offense more severely than a greater offense is unusual
punishment under the California Constitution. (See People v.
Smith (2015) 234 Cal.App.4th 1460, 1468―1469; People v. Doyle
(2013) 220 Cal.App.4th 1251, 1268.) This contention need not
detain us long. As we have explained, Senate Bill 1437 does not
require a greater punishment for attempted murder than for
murder. Thus, it is not facially unconstitutional.
       As to the contention that Munoz’s specific sentence is
unconstitutionally unusual, this claim is not yet ripe for review.
As explained in the next section, we are vacating Munoz’s
sentence and remanding the matter for resentencing, to allow the
trial court to exercise its discretion to determine whether to
strike or dismiss the section 12022.53 firearm enhancements. No
final sentence is yet in place. (See People v. Garcia (2018) 30
Cal.App.5th 316, 329 [“Until a new sentence is imposed, it is
uncertain whether the same constitutional concerns will arise”].)
       4. The matter must be remanded for resentencing
       When the trial court sentenced Munoz in July of 2017,
imposition of a section 12022.53 firearm enhancement was
mandatory and the trial court lacked discretion to strike it. (See
People v. Franklin (2016) 63 Cal.4th 261, 273.) Accordingly, the




                               59
court imposed consecutive terms of 25 years to life on counts 1
and 2 pursuant to section 12022.53, subdivisions (d) and (e)(1). 27
       Effective January 1, 2018, the Legislature amended section
12022.53, subdivision (h) to give trial courts authority to strike
section 12022.53 firearm enhancements in the interest of justice.
(Sen. Bill No. 620 (2017–2018 Reg. Sess.), Stats. 2017, ch. 682,
§ 2.) Munoz contends his case must be remanded to allow the
trial court to exercise its discretion to strike the firearm
enhancements, and the People agree. The parties are correct.
The amendment to section 12022.53 applies to cases, such as
appellant’s, that were not final when the amendment became
operative. (People v. Watts (2018) 22 Cal.App.5th 102, 119;
People v. Arredondo (2018) 21 Cal.App.5th 493, 507; People v.
Woods (2018) 19 Cal.App.5th 1080, 1090–1091; People v. Brown,
supra, 54 Cal.4th at p. 323; People v. Vieira (2005) 35 Cal.4th
264, 305–306; People v. Nasalga (1996) 12 Cal.4th 784, 792;
Estrada, supra, 63 Cal.2d at p. 745.) Remand is necessary to
allow the trial court an opportunity to exercise its sentencing
discretion under the amended statute. (See People v. Gutierrez
(2014) 58 Cal.4th 1354, 1391; People v. Brown (2007) 147
Cal.App.4th 1213, 1228.) We express no opinion about how the
court’s discretion should be exercised.]]




27    The court also imposed a 25-years-to-life term for the
firearm enhancement on count 3, but stayed it pursuant to
section 654.



                                60
                           DISPOSITION
      Munoz’s sentence is vacated and the matter is remanded to
allow the trial court to exercise its discretion and determine
whether to strike or dismiss the section 12022.53 firearm
enhancements pursuant to section 12022.53, subdivision (h). The
judgment of conviction is otherwise affirmed.

     CERTIFIED FOR PARTIAL PUBLICATION




                                        EDMON, P. J.


We concur:




                 LAVIN, J.




                 EGERTON, J.




                              61
