Filed 9/3/15 P. v. Cernogg CA2/3
Opinion after reinstatement
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B210684

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. TA085192)
         v.

JAMES RUSSELL CERNOGG, JR.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Reversed and remanded.
         Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent.
                                             _________________________
                                     INTRODUCTION
       A jury found defendant and appellant James Russell Cernogg, Jr., guilty of first
degree murder and found true gun and gang enhancement allegations. The prosecution’s
theory was Cernogg aided and abetted the first degree premeditated murder of Michael
Pimental. The jury was therefore instructed they could find Cernogg guilty of murder as
either a direct aider and abettor or under the natural and probable consequences doctrine.
Our California Supreme Court, however, has found that an aider and abettor cannot be
guilty of first degree premeditated murder under the natural and probable consequences
doctrine. (People v. Chiu (2014) 59 Cal.4th 155 (Chiu).) Because we cannot determine
beyond a reasonable doubt that the jury based its verdict on a valid theory, as opposed to
the invalid natural and probable consequences doctrine, we reverse the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       On May 11, 2006, Camilo H. (“Dust”) and Michael Pimental (“Rest”)1 were
hanging out with friends, including Michael Morales. Later that night, around 9:30 p.m.
or 10:00 p.m., Camilo and Pimental were tagging. Camilo wrote “Dust” on a wall.
       Cernogg, who was on a bicycle, approached and asked why they were writing on
the wall and where did they live.2 Camilo told him, “ ‘My bad.’ ” Cernogg told Camilo
and Pimental to “ ‘[c]ome on’ ” with him. Camilo did not see Cernogg with a gun, but he
thought he might have one. Cernogg “chirped” someone.3 The first and second times
Cernogg called, there was no answer, but the third time somebody answered. Cernogg
said, “ ‘I got them right [here],’ ” and he was told to “ ‘[h]old them right there.’ ”

1
       At the time of these events Pimental was 15 and Camilo was 12.
2
       At trial, Camilo identified Cernogg as the man on the bike.
3
       “[C]hirping” is another term for direct connect communication. By pushing a
button on a direct connect phone a person can instantly connect with another phone,
similar to a walkie talkie. Evidence established that calls between direct connect phones
linked to Cernogg and codefendant Jeffrey Martin were made around the time of the
shooting.


                                               2
Cernogg told Camilo, “ ‘I’m going to kill you and your mom.’ ” During this time,
Cernogg did not claim a gang or reference the Elm Street Piru gang.
       Within minutes, Jeffrey Martin came from the other side of the street. Camilo had
seen Martin around and knew him as “Slick.” Martin held a gun, which he covered with
a rag. Without a word to anyone, including to Cernogg, Martin pointed the gun at
Pimental, who said, “ ‘No, don’t shoot.’ ” Standing no more than three feet away, Martin
shot Pimental once in the head, killing him.
       Leaving his bike at the scene, Cernogg ran. Martin walked away, but he and
Cernogg went in the same direction. From photographs, Camilo identified Martin as the
shooter and Cernogg as the man on the bike.4
       Morales witnessed some of these events. Around 10:00 p.m., he went to look for
his mother, who had gone to the store. He saw Camilo and Pimental, who looked
worried. Morales noticed the word “Dust” on a wall, and he wondered if they had just
put it there. He saw a African-American man on a bike approach Camilo and Pimental
and say something to them. Morales asked Pimental if he had seen Morales’s mother,
and Pimental asked Morales to go with them. The man on the bike, however, asked
Morales if he wanted “ ‘some problems, too’ ” and said, “ ‘[y]ou better go back.’ ” The
man pulled up his shirt to expose a gun.5 The man also said something about teaching
them a lesson: “ ‘I’m going to teach these little fools a lesson not to write in my hood
again.’ ” At trial, Morales said he did see the person on the bike in court.
       DNA samples were retrieved from the bicycle left at the scene of the crime.
Cernogg was a possible contributor to the DNA. As to one DNA sample, one out of
24,940 African-Americans could have contributed to that DNA. As to a second DNA
sample, one out of 15,140 African-Americans could have contributed to it.

4
       In a subsequent live line-up, Camilo identified Martin as the shooter.
5
       Morales testified he told the police that the man on the bike had a gun. But the
parties stipulated that neither during his interview on May 13, 2006, nor in subsequent
interviews, did Morales tell a detective that the man on the bike pulled up his shirt to
display a gun.


                                               3
       Gang evidence was introduced that Martin was a member of the Elm Lane Piru
gang and Cernogg was an associate of the gang. Based on a hypothetical modeled on the
facts of this case, the People’s gang expert testified that such a crime was committed for
the benefit of, at the direction of, or in association with Elm Street Piru.
II.    Procedural background.
       Trial was by jury. On March 5, 2008, the jury found Cernogg guilty of first
degree murder (Pen. Code, § 187, subd. (a)).6 The jury found true principal gun use
allegations (§ 12022.53, subds. (b), (c), (d), (e)(1)) and a gang enhancement allegation
(§ 186.22, subd. (b)(1)(A)).7
       On August 18, 2008, the trial court sentenced Cernogg to 25 years to life for the
murder of Pimental plus an additional 25 years for the gun use enhancement (§ 12022.53,
subds. (d), (e)(1)).
       On December 9, 2009, we affirmed Cernogg’s conviction in an unpublished
opinion. (People v. Cernogg (Dec. 9, 2009, B210684) [nonpub. opn.].)
       On April 16, 2015, we granted Cernogg’s motion to recall the remittitur and to
reinstate the appeal, based on Chiu, supra, 59 Cal.4th 155.
                                       DISCUSSION
I.     Cernogg could not be guilty of first degree premeditated murder under a
natural and probable consequences theory of aiding and abetting.
       The jury was instructed it could find Cernogg guilty of first degree premeditated
murder either as a direct aider and abettor or under the natural and probable consequences
doctrine.8 We find it was error, under Chiu, to instruct the jury on the natural and
probable consequences doctrine. The People concede.

6
       All statutory references are to the Penal Code.
7
      The jury found Martin guilty of first degree murder and of related gun and gang
enhancement allegations.
8
       The jury was instructed on direct aiding and abetting (CALJIC No. 3.01) and on
the natural and probable consequences doctrine (CALJIC No. 3.02.) False imprisonment
was the target offense.

                                               4
       In Chiu, as here, the defendant was charged with murder. The prosecution argued
that the defendant either directly aided and abetted a codefendant in the shooting death of
the victim or the defendant aided and abetted his codefendant in the target offense of
assault or of disturbing the peace, the natural and probable consequence of which was
murder. In considering whether the natural and probable consequences instruction was
error, Chiu first noted that “[a]ider and abettor culpability under the natural and probable
consequences doctrine is vicarious in nature.” (Chiu, supra, 59 Cal.4th at p. 164.) Thus,
the aider and abettor’s liability depends not on his or her mens rea to commit the
nontarget offense, but on the reasonable foreseeability of the actual resulting harm or the
criminal act that caused that harm. This doctrine, in the context of murder, serves the
legitimate public policy concern of deterring aiders and abettors from aiding or
encouraging the commission of offenses that would naturally, probably, and foreseeably
result in an unlawful killing such as second degree murder. (Id. at p. 165.)
       This public policy concern “loses its force in the context of a defendant’s liability
as an aider and abettor of a first degree premeditated murder.” (Chiu, supra, 59 Cal.4th
at p. 166.) This is because the mental state required for first degree murder is “uniquely
subjective and personal,” requiring “more than a showing of intent to kill; the killer must
act deliberately, carefully weighing the considerations for and against a choice to kill
before he or she completes the acts that caused the death.” (Ibid.) Thus, “the connection
between the defendant’s culpability and the perpetrator’s premeditative state is too
attenuated to impose aider and abettor liability for first degree murder under the natural
and probable consequences doctrine, especially in light of the severe penalty involved
and the above[-]stated public policy concern of deterrence.” (Ibid.) Chiu concluded that
while second degree murder is “commensurate with a defendant’s culpability for aiding
and abetting a target crime that would naturally, probably, and foreseeably result in a
murder under the natural and probable consequences doctrine,” first degree premeditated
murder is not. (Ibid.) For an aider and abettor to be convicted of first degree
premeditated murder, he or she must be found liable as a direct aider and abettor. (Id. at
pp. 166-167.)

                                              5
       Where, as here, a defendant possibly has been convicted of first degree
premeditated murder under the natural and probable consequences doctrine, the
conviction must be reversed unless the reviewing court can conclude beyond a reasonable
doubt that the jury based its verdict on a legally valid theory. (Chiu, supra, 59 Cal.4th at
p. 167; see also People v. Guiton (1993) 4 Cal.4th 1116, 1128-1129 [when a trial court
instructs on two theories of guilt, one legally correct and one legally incorrect, reversal is
required unless there is a basis in the record to find that the verdict was based on a valid
ground].) A legally valid theory—direct aiding and abetting—was before the jury. But,
as the People concede, we cannot determine beyond a reasonable doubt that the jury
based its verdict on that theory, as opposed to the invalid natural and probable
consequences doctrine. The People argued both theories to the jury and nothing in the
record suggests on which theory the jury relied.
       This matter must therefore be remanded. On remand, the People may accept a
reduction of the first degree murder conviction to second degree murder or retry the
defendant on the greater offense of first degree murder under a direct aiding and abetting
theory of liability. (Chiu, supra, 59 Cal.4th at p. 168.)
       As to direct aiding and abetting, we previously found that there was sufficient
evidence to support that theory. To prove liability as a direct aider and abettor, the
prosecution must show that the defendant “acted ‘with knowledge of the criminal purpose
of the perpetrator and with an intent or purpose either of committing, or of encouraging
or facilitating commission of, the offense.’ ” (People v. Prettyman (1996) 14 Cal.4th
248, 259.) The evidence here was that Martin was a known member of the Elm Street
Piru gang, and Cernogg was an associate of the gang. On the night of Pimental’s murder,
Cernogg was riding his bike in gang territory. When he stopped Pimental and Camilo, he
told them to come with him. Cernogg chirped Martin, who told Cernogg to “hold them”
there. Cernogg followed Martin’s orders. Cernogg stated his intent to Camilo: “ ‘I’m
going to kill you and your mom.’ ”
       That Cernogg intended harm is further evidenced by his threat to Morales, a friend
of Pimental’s and Camilo’s who happened to wander by. Cernogg told Morales that

                                              6
unless he too wanted “ ‘some problems,’ ” he had “ ‘better go.’ ” Cernogg lifted his shirt
to reveal a gun and said something to the effect of, “ ‘I’m going to teach these little fools
a lesson not to write in my hood again.’ ” This evidence is more than sufficient to show
that Cernogg shared Martin’s intent and purpose and to therefore allow a retrial under a
direct aiding and abetting theory.
                                       DISPOSITION
       The judgment is reversed and the matter is remanded. The People may accept a
reduction of Cernogg’s conviction to second degree murder. If, after the filing of the
remittitur in the trial court, Cernogg is not retried within the time described in section
1382, subdivision (a)(2), the trial court shall proceed as if the remittitur constituted a
modification of the judgment to reflect a conviction of second degree murder and shall
resentence Cernogg accordingly.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                          ALDRICH, J.




We concur:




              EDMON, P. J.




              LAVIN, J.

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