Filed 4/14/20




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


THE PEOPLE,

   Plaintiff and Respondent,                        G055930

       v.                                           (Super. Ct. No. 12CF1469)

CORBIN YOSHIO DENNIS,                               OPINION

   Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Richard
M. King, Judge. Affirmed in part and reversed in part.
                  Barbara A. Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
              After being convicted of three counts of willful, deliberate, and
premeditated attempted murder, three counts of second degree robbery, three counts of
assault with a semiautomatic firearm and a couple of gang-related offenses, with various
enhancements attached to each, the trial court sentenced defendant Corbin Yoshio Dennis
                                                                    1
to a total of 23 years 8 months, plus 45 years to life in state prison. The attempted
premeditated murder convictions were grounded in a theory that defendant aided and
abetted the actual shooter’s attempted premeditated murders by committing the target
crime of unlawfully challenging another person in a public place to fight, the natural and
probable consequence of which was attempted murder (not attempted premeditated
murder).
              Defendant contends he is entitled to the ameliorative benefits of Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which he
claims requires reduction of the attempted murder convictions to misdemeanors for
disturbing the peace and resentencing to give him credit for time served. He also argues
there is insufficient evidence to support his attempted murder convictions.
              Alternatively, he contends the special finding under Penal Code section
664, subdivision (a), that the attempted murders were willful, deliberate, and
                                2
premeditated, must be stricken. He reasons the court erred by failing to instruct the jury
that in order to make the special finding of premeditation based on a natural and probable
consequences theory, it was required to find attempted premeditated murder was a
natural and probable consequence of the target crime.




1
            As a convenient shorthand, we will refer to the special findings that the
attempted murders were “willful, deliberate, and premeditated” as simply “premeditated.”
2
              All further statutory references are to the Penal Code unless otherwise
stated.

                                             2
              Finally, defendant contends there was insufficient evidence of the alleged
target crime, challenging another person in a public place to fight (§ 415, subd. (1)). He
asserts the court committed instructional error by instructing the jury concerning this
target offense and that his attempted murder convictions must be reversed due to
insufficient evidence.
              We conclude Senate Bill 1437 is not a bar to defendant’s convictions for
attempted murder under the natural and probable consequences theory. The legislation
reaches the crime of murder but has no application to attempted murder. In that regard
we adopt the reasoning of People v. Lopez (2019) 38 Cal.App.5th 1087, review granted
November 13, 2019, S258175 (Lopez), and reject the reasoning of People v. Medrano
(2019) 42 Cal.App.5th 1001, review granted March 11, 2020, S259948 (Medrano). We
also conclude substantial evidence supports defendant’s attempted murder convictions.
              But we also conclude defendant’s claim of instructional error regarding
attempted premeditated murder on a natural and probable consequences theory has merit.
The court’s instruction constituted a Sixth Amendment violation because it allowed the
jury to find the attempted murders were premeditated without requiring the jury to find
that attempted premeditated murder was the natural and probable consequence of the
target offense. Alleyne v. United States (2013) 570 U.S. 99 (Alleyne) held any fact that
increases the minimum penalty for a crime is an element of the offense, which must be
submitted to the jury and found true beyond a reasonable doubt. (Id. at p. 103.) That was
not done here. The ratio decidendi of the United States Supreme Court in Alleyne is
contrary to the ratio decidendi of the California Supreme Court in People v. Favor (2012)
54 Cal.4th 868 (Favor), thereby requiring us to adhere to Alleyne and not Favor.
              Finally, we conclude substantial evidence supported the giving of the
challenged instruction concerning the target offense.




                                             3
                                           FACTS


              As three teenagers socialized next to an abandoned railroad right-of-way,
two males, later identified as defendant and Luis Mendoza, climbed over a nearby fence
and approached them. Mendoza asked the group where they were from, to which one
replied they were not from anywhere. He repeated his question as one of the three, M.G.,
took steps toward him. Mendoza pulled out a semiautomatic pistol from his waistband.
M.G. again responded to the question, this time stating, “We don’t claim anybody. If
you’re going to shoot us, shoot us.”
              The situation escalated, with defendant and Mendoza both declaring they
were from “Hard Times” or saying “this is Hard Times.” Mendoza followed up by
shooting M.G. in the shoulder and in each leg. M.G. fell to the ground and the two others
in his group started to run away. Mendoza proceeded to fire three or four more shots in
their direction as they ran, then he and defendant took off on foot in a different direction.
              When police officers arrived at the scene of the shooting, M.G. was laying
on the ground with apparent gunshot wounds. He was transported to a hospital where he
received treatment over the course of two or three days before being released. Officers
recovered three nine-millimeter bullet casings from the crime scene.
              That same evening, defendant and Mendoza approached another set of three
teenagers walking through the abandoned railroad right-of-way. Holding a
semiautomatic gun, Mendoza ordered them to “get on the ground or you’re going to die,
and drop your shit.” He took the gun and hit one of the three, A.C., in the head, causing
him to bleed and fall to the ground. A.C. put his cellular phone and skateboard on the
ground next to him, and another of the three, R.C., got on the ground and did the same
with his portable media player, skateboard and keys.
              With all three laying on the ground, Mendoza struck two of them in the
head with the gun. Defendant went through A.C.’s and R.C.’s pockets, took what all

                                              4
three individuals had placed on the ground, and Mendoza told the group to leave.
Mendoza ended the interaction by stating, “Get up or you’re going to die,” and the three
ran off.
              Defendant and Mendoza subsequently fled toward an adjacent mobile home
park. A witness observed two males running through the backyard of her mobile home
property, one of whom she recognized as defendant. Police officers later located a
portable media player in the same backyard, as well as a baseball hat and skateboard near
a wall leading to the mobile home park. They returned the items to R.C.
              A few days later, police officers arrested Mendoza. At the time of his
arrest, Mendoza possessed a camera and a Samsung cellular phone. Police later
determined those items belonged to the third individual involved in the second incident at
the railroad tracks and they returned the items to him.
              An information charged defendant with three counts of attempted murder
(Pen. Code, §§ 187, subd. (a), 664, subd. (a); counts 1-3), three counts of second degree
robbery (§§ 211, 212.5, subd. (c); counts 4-6), three counts of assault with a
semiautomatic firearm (§ 245, subd. (b); counts 7-9), street terrorism (§ 186.22, subd. (a);
                                                                                 3
count 10), and disobeying a gang injunction (§ 166, subd. (a)(10); count 11). As to the
attempted murder counts, it further alleged the attempted murder was committed
willfully, deliberately and with premeditation, within the meaning of section 664,
subdivision (a). Additional allegations against defendant included the following: as to
counts 1 through 6, that defendant was a gang member who vicariously discharged a
firearm; as to count 1, that defendant was a gang member who vicariously discharged a
firearm causing great bodily injury; and as to the first nine counts, that defendant
committed the charged crimes for the benefit of a criminal street gang, Hard Times,
within the meaning of section 186.22, subdivision (b)(1).


3
              Count 11 was later dismissed pursuant to a motion by the People.

                                              5
              A gang expert testified at trial. He explained the origins of the Hard Times
gang, its common signs and colors, and its territory. Among the primary activities of the
gang, which had more than 40 members at the time of the charged incidents, are
robberies, assaults, homicides, possessions of firearms by felons, and possession of
loaded firearms in public. He further explained that one of the gang’s chief rivals is
Santa Nita, and the alleged attempted murders and robberies took place at a location on
the border between Hard Times territory and Santa Nita territory.
              After confirming his investigations showed defendant and Mendoza were
both members of Hard Times, the expert opined the charged offenses were done in
association with a gang, and furthered the criminal purpose of a gang, because two
members were present. He further opined they were committed for the benefit of Hard
Times. Brandishing a firearm and calling out the gang’s name enhances its reputation for
violence. It also demonstrates and furthers the gang’s power and control over territory.
              Additional evidence revealed that in the couple of years before the alleged
incidents, police contacted defendant multiple times and observed him with Mendoza on
at least three occasions. On one occasion, defendant denied being a member of the Hard
Times gang, but on other separate occasions he was in possession of a notebook
containing writings consistent with gang activity and he admitted he belonged to the
gang.
              The jury found defendant guilty of all counts charged, and it found true all
the special allegations. Prior to sentencing and in response to an unopposed defense
motion, the court held a fitness hearing pursuant to Welfare and Institutions Code section
707. Although defendant was 16 years old at the time of the charged offenses, the court
determined he was unfit to be tried as a juvenile.
              The trial court sentenced defendant to a total of 23 years 8 months, plus 45
years to life in state prison. The latter comprised a 15-years-to-life sentence on each of
the three attempted murder counts. The former consisted of the upper term of five years

                                             6
on count 4, plus a 10-year gang enhancement on that count, and one-year terms on counts
5 and 6, plus a 40-month gang enhancement on each of those counts. Pursuant to section
654, the trial court stayed defendant’s sentence on counts 7 through 10.


                                       DISCUSSION


Senate Bill 1437 Does Not Apply to Attempted Murder
              The prosecution pursued attempted murder charges against defendant on an
aiding and abetting theory, arguing the attempted murders were a natural and probable
consequence of his commission of another offense—challenging another person in a
public place to fight (§ 415, subd. (1)). Defendant contends he is entitled to the
ameliorative benefits of Senate Bill 1437, which took effect January 1, 2019. He urges us
to reverse the judgment and remand the matter for the trial court to (1) reduce his
attempted murder convictions to misdemeanor disturbing the peace, and (2) resentence
him, accordingly, giving him credit for time served. The Attorney General argues, inter
alia, that Senate Bill 1437 does not apply to convictions for attempted murder, as opposed
to murder. We agree with the Attorney General.
              This issue is pending before the California Supreme Court in its review of
Lopez, supra, 38 Cal.App.5th 1087, review granted. The high court limited its review of
Lopez to two issues, one of which asks whether Senate Bill 1437 applies to attempted
murder liability under the natural and probable consequences doctrine. There currently
exists a split of authority in California’s appellate courts as to whether Senate Bill 1437
applies to attempted murder. Two opinions from the Second District Court of Appeal,
Lopez and People v. Munoz (2019) 39 Cal.App.5th 738, review granted November 26,
2019, S252291 (Munoz), have each held “[a]s a matter of statutory interpretation, Senate
Bill 1437’s legislative prohibition of vicarious liability for murder does not, either
expressly or impliedly, require elimination of vicarious liability for attempted murder.”

                                              7
(Lopez, at p. 1106.) “Senate Bill 1437 does not apply to the offense of attempted
murder.” (Munoz, at p. 753; see Lopez, at pp. 1103-1106.) On the other hand, three
opinions from the Fifth District Court of Appeal have held to the contrary. (Medrano,
supra, 42 Cal.App.5th at p. 1015, review granted; People v. Larios (2019) 42
Cal.App.5th 956, 964-968, review granted February 26, 2020, S259983 (Larios); People
v. Sanchez (2020) 46 Cal.App.5th 637 (Sanchez).) As we will explain, we conclude
Lopez and Munoz are the better reasoned opinions, and we will adhere to their
conclusions.
               “Senate Bill 1437 was enacted 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.’ [Citation.] Substantively, Senate Bill 1437 accomplishes
this by amending section 188, which defines malice, and section 189, which defines the
degrees of murder, and as now amended, addresses felony murder liability. Senate Bill
1437 also adds . . . section 1170.95, which allows those ‘convicted of felony murder or
murder under a natural and probable consequences theory . . . [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts . . . .’” (People v. Martinez (2019) 31
Cal.App.5th 719, 723.)
               Under section 188, subdivision (a)(3), as amended, “[m]alice shall not be
imputed to a person based solely on his or her participation in a crime.” And under
section 189, as amended, to be liable for murder based on an underlying felony or
attempted felony listed in subdivision (a), a person must fall into one of the following
categories of people: (1) the actual killer; (2) although not the actual killer, a person who
intended to kill and assisted the actual killer in the commission of first degree murder; or



                                              8
(3) a major participant in the underlying felony who acted with reckless indifference to
human life. (§ 189, subd. (e)(1)-(3).)
              Defendant contends Senate Bill 1437 precludes convictions of attempted
murder under the natural and probable consequences doctrine. We disagree. Senate Bill
1437 addresses only murder and not the crime of attempted murder. In Lopez, supra, 38
Cal.App.5th 1087, review granted, our colleagues in the Second Appellate District,
Division Seven explained: “Here, there is nothing ambiguous in the language of Senate
Bill 1437, which, in addition to the omission of any reference to attempted murder,
expressly identifies its purpose as the need ‘to amend the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent
to kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.’ [Citation.] Had the Legislature meant to bar convictions for
attempted murder under the natural and probable consequences doctrine, it could easily
have done so. [Citations.]
              “The Legislature’s obvious intent to exclude attempted murder from the
ambit of the Senate Bill 1437 reform is underscored by the language of new section
1170.95, the provision it added to the Penal Code to permit individuals convicted before
Senate Bill 1437’s effective date to seek the benefits of the new law from the sentencing
court. Section 1170.95, subdivision (a), authorizes only those individuals ‘convicted of
felony murder or murder under a natural and probable consequences theory’ to petition
for relief; and the petition must be directed to ‘the petitioner’s murder conviction.’
Similarly, section 1170.95, subdivision (d)(1), authorizes the court to hold a hearing to
determine whether to vacate ‘the murder conviction.’




                                              9
              “The plain language meaning of Senate Bill 1437 as excluding any relief
for individuals convicted of attempted murder is fully supported by its legislative history.
[Citations.] When describing the proposed petition process, the Legislature consistently
referred to relief being available to individuals charged in a complaint, information or
indictment ‘that allowed the prosecution to proceed under a theory of first degree felony
murder, second degree felony murder, or murder under the natural and probable
consequences doctrine’ and who were ‘sentenced to first degree or second degree
murder.’ [Citation.] In addition, when discussing the fiscal impact and assessing the
likely number of inmates who may petition for relief, the Senate Committee on
Appropriations considered the prison population serving a sentence for first and second
degree murder and calculated costs based on that number. [Citation.] The analysis of
potential costs did not include inmates convicted of attempted murder.” (Lopez, supra,
38 Cal.App.5th at pp. 1104-1105, review granted, fn. omitted; see Munoz, supra, 39
Cal.App.5th at p. 760, review granted [“The remedy for any potentially inequitable
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”].)
              We adopt the above reasoning of the Lopez court. Defendant is not entitled
to relief under Senate Bill 1437 for his attempted murder convictions.
              In our view, the Medrano, Larios, and Sanchez courts rested their contrary
conclusion on a flawed premise—that to be convicted as an aider and abettor under the
natural and probable consequences doctrine a defendant must share the mental state of
the direct perpetrator. Specifically, Medrano quotes People v. McCoy (2001) 25 Cal.4th
1111, a case dealing with direct aiding and abetting, saying “‘[O]utside of the natural and
probable consequences doctrine, an aider and abettor’s mental state must be at least that
required of the direct perpetrator.’ [Citation.] It follows that if malice is an element of a
charged offense, accomplice liability under the natural and probable consequences

                                             10
doctrine necessarily entails the imputation of malice.” But, as the Medrano court
reasoned, since Senate Bill 1437’s amendment to section 188 requires that “Malice shall
not be imputed to a person based solely on his or her participation in a crime,” a
defendant may no longer be convicted of attempted murder under the natural and
probable consequences doctrine. (Medrano, at p. 1013.)
              The validity of the Medrano court’s analysis depends upon its initial
premise—that “‘an aider and abettor’s mental state must be at least that required of the
direct perpetrator.’” (Medrano, supra, 42 Cal.App.5th at p. 1013.) But the authority it
quotes for this proposition, McCoy, supra, 25 Cal.4th at page 1118, was not addressing
the natural and probable consequences doctrine. The McCoy court, in addition to
excluding the natural and probable consequences doctrine from the very rule quoted by
the Medrano court, also cautioned the reader that “[n]othing we say in this opinion
necessarily applies to an aider and abettor’s guilt of an unintended crime under the
natural and probable consequences doctrine.” (McCoy, at p. 1117.) Thus, it simply does
not follow that the rule requiring the mental state of a direct aider and abettor “must be at
least that required of the direct perpetrator” (id. at p. 1118) applies to an aider and abettor
under the natural and probable consequences doctrine. Quite to the contrary. “[B]y its
very nature, aider and abettor liability under the natural and probable consequences
doctrine is not premised on the intention of the aider and abettor to commit the nontarget
offense because the nontarget offense was not intended at all. The doctrine imposes
vicarious liability for any offense committed by the direct perpetrator that is a natural and
probable consequence of the target offense. It is not an implied malice theory; the mens
rea of the aider and abettor with respect to the nontarget offense, actual or imputed, is
irrelevant. [Citation.] Rather, liability is imposed because a reasonable person could
have foreseen the commission of the additional offense.” (Lopez, supra, 38 Cal.App.5th
at p. 1102-1103, review granted, fn. omitted; People v. Chiu (2014) 59 Cal.4th 155, 164
(Chiu) [“Because the nontarget offense is unintended, the mens rea of the aider and

                                              11
abettor with respect to that offense is irrelevant and culpability is imposed simply
because a reasonable person could have foreseen the commission of the target crime”].)
              Accordingly, Senate Bill 147 does not entitle defendant to a reversal of his
attempted murder convictions under the natural and probable consequences doctrine.
But, as we shall now explain, the jury’s special finding that defendant acted with
deliberation and premeditation must be stricken.


Aider and Abettor Liability for Attempted Premeditated Murder
              Whether a defendant may be convicted of attempted premeditated murder
based on the natural and probable consequences doctrine is also an issue being addressed
by the California Supreme Court’s review of Lopez, supra, 38 Cal.App.5th 1087, review
granted. The Supreme Court granted review, inter alia, on the following question: “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) 570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”
              Even if Senate Bill 1437 allows an attempted murder conviction based on
the natural and probable consequences doctrine, defendant nevertheless contends the
special finding of premeditation and deliberation must be stricken. He asserts the trial
court erred in instructing the jury. He argues the court was required to instruct he could
not be convicted of attempted premeditated murder on a natural and probable
consequences theory unless the jury concluded attempted first degree murder, as opposed
to second degree murder, was a natural and probable consequence of the target crimes.
In so arguing, he acknowledges the California Supreme Court’s decision in Favor, supra,
54 Cal.4th 868 stands to the contrary. But from his perspective, Favor is no longer good
law in light of Alleyne, supra, 570 U.S. 99, and Chiu, supra, 59 Cal.4th 155. The

                                             12
Attorney General argues that Favor has not been expressly overruled, and that we are
bound under principles of stare decisis to adhere to it. Before addressing these competing
arguments, it is helpful to set forth a brief overview of the relevant legal principles as
understood, at least before the United States Supreme Court decided Alleyne and the
California Supreme Court decided Chiu.


              A. The Natural and Probable Consequences Doctrine
              “An aider and abettor is one who acts ‘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.’ [Citation.]
              “‘“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.”’ [Citations.] ‘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.’” (Chiu,
supra, 59 Cal.4th at p. 161.) The rationale behind the doctrine is that “‘aiders and
abettors should be responsible for the criminal harms they have naturally, probably and
foreseeably put in motion.’” (People v. Prettyman (1996) 14 Cal.4th 248, 260.)
“A nontarget offense is a ‘“natural and probable consequence”’ of the target offense if,
judged objectively, the additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor actually foresaw the nontarget
offense. [Citation.] Rather, liability ‘“is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.”’” (Chiu, supra, 59
Cal.4th at pp. 161-162.)



                                              13
              B. Murder and Attempted Murder
              “First degree murder, like second degree murder, is the unlawful killing of
a human being with malice aforethought, but has the additional elements of willfulness,
premeditation, and deliberation, which trigger a heightened penalty. [Citation.] That
mental state is uniquely subjective and personal. It requires more than a showing of
intent to kill; the killer must act deliberately, carefully weighing the considerations for
and against a choice to kill before he or she completes the acts that caused the death.”
(Chiu, supra, 59 Cal.4th at p. 166.)
              As to a perpetrator and a direct aider and abettor, “‘[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.’” (People v. Smith (2005) 37 Cal.4th 733,
739.) But as to an aider and abettor charged under the natural and probable consequences
doctrine, the attempted murder is unintended. Thus, the mens rea of the aider and abettor
with respect to the attempted murder is irrelevant and culpability is imposed simply
because a reasonable person could have foreseen the commission of the attempted
murder. (Chiu, supra, 59 Cal.4th 155, 161-162.)
Punishment for attempted murder varies and is set forth in section 664. Subdivision (a)
provides that a person guilty of attempted murder must be punished by imprisonment in
the state prison for five, seven, or nine years. However if the person is guilty of
attempted willful, deliberate and premeditated murder, the punishment is imprisonment
for life.




                                              14
               C. The Interplay of Aiding and Abetting, Attempt and First Degree Murder
               Resolution of the ultimate issue before us requires consideration of four
principal cases: People v. Lee (2003) 31 Cal.4th 613 (Lee), Favor, supra, 54 Cal.4th 868,
Alleyne, supra, 570 U.S. 99, and Chiu, supra, 59 Cal.4th 155.
               In Lee, the California Supreme Court considered “whether section 664 [,
subdivision (a)] requires that in order to be punished with life imprisonment for
attempted murder as an aider and abettor, an individual must personally act with
willfulness, deliberation, and premeditation.” (Lee, supra, 31 Cal.4th at p. 620.) It
answered the question in the negative, explaining the statute’s language leads to the
interpretation it “require[s] only that the murder attempted was willful, deliberate, and
premeditated, . . . not [that it] require[s] . . . an attempted murderer personally acted with
willfulness, deliberation, and premeditation . . . .” (Id. at p. 627.)
               Favor, supra, 54 Cal.4th 868, extended Lee to aider and abettor liability for
attempted premeditated murder under the natural and probable consequences doctrine. In
Favor, a jury convicted the defendant of two counts of robbery and two counts of
attempted murder, on the theory that the nontarget attempted murder offenses were a
natural and probable consequence of the target robbery offenses which the defendant
aided and abetted. (Id. at p. 871.) The question before our Supreme Court was whether
an aider and abettor who knew of and intended to facilitate the target offense of robbery
could be convicted of attempted premeditated murder under the natural and probable
consequences doctrine where the jury was instructed that a conviction required only that
attempted murder was a natural and probable consequence of the robbery, and not
instructed that attempted premeditated murder was a natural and probable consequence of
the robbery.




                                              15
              The Favor court upheld the defendant’s conviction, concluding there was
no instructional error. (Favor, supra, 54 Cal.4th at p. 872.) It explained “there is no
requirement that an aider and abettor reasonably foresee an attempted premeditated
murder as the natural and probable consequence of the target offense. It is sufficient that
attempted murder is a reasonably foreseeable consequence of the crime aided and
abetted, and the attempted murder itself was committed willfully, deliberately and with
premeditation.” (Id. at p. 880.)
              In reaching its conclusion, the Favor court’s rationale was threefold. First,
it relied on Lee, reiterating observations made in support of that decision. (Favor, supra,
54 Cal.4th at p. 878.) It also emphasized dictum in Lee stating that “‘where the natural-
and-probable consequences doctrine does apply, an attempted murderer who is guilty as
an aider and abettor may be less blameworthy’” (Favor, at p. 878), and noted the
Legislature subsequently modified other portions of section 664, including portions of
subdivision (a), without changing the penalty provision. (Favor, at pp. 878-879.)
              Second, the Favor court confirmed then current law that attempted
premeditated murder and attempted unpremeditated murder are not separate offenses.
(Favor, supra, 54 Cal.4th at p. 876.) Rather, the sole crime is attempted murder and the
premeditation aspect simply impacts sentencing. (Id. at p. 877.)
              Third, the court mentioned the sequential order in which a jury considers
and decides allegations under section 664. It explained “the jury does not decide the truth
of the penalty premeditation allegation until it first has reached a verdict on the
substantive offense of attempted murder.” (Favor, supra, 54 Cal.4th at p. 879.) In other
words, only after a jury finds an aider and abettor, in general or under the natural and
probable consequences doctrine, is guilty of an attempted murder, does it separately
determine whether the attempted murder was willful, deliberate, and premeditated. (Id. at
p. 880.)



                                             16
              As we will explain in greater detail post, we conclude the ratio decidendi of
the Favor opinion has been overruled by the ratio decidendi of the United States Supreme
Court in Alleyne, supra, 570, U.S. 99, thus freeing us from the potential stare decisis
strictures of the Favor opinion. The Favor court held that in the prosecution of an aider
and abettor for attempted premeditated murder under the natural and probable
consequences doctrine the jury is not required to find that deliberation and premeditation
is the natural and probable consequence of the target crime. (Favor, supra, 54 Cal.4th at
p. 872.) In contrast, the Alleyne court held under the Sixth Amendment that any fact
which increases the minimum penalty for a crime must be submitted to the jury and found
beyond a reasonable doubt. (Alleyne, at p. 103.) Here, the fact that increases the
minimum penalty for attempted murder is simply this: The deliberate and premeditated
attempted murder was the natural and probable consequence of the target crime.
              Before analyzing further the implications of Alleyne, however, we pause to
consider whether attempted premeditated murder under the natural and probable
consequences doctrine is any longer a crime as a matter of state law.


              D. The Special Finding of Deliberation and Premeditation Cannot be
              Based on the Natural and Probable Consequences Doctrine
              In Chiu, the California Supreme Court held an aider and abettor may not be
convicted of first degree murder under a natural and probable consequences theory.
(Chiu, supra, 59 Cal.4th at p. 167.) To reach that conclusion, the Chiu court started with
the language of the aider and abettor statute (§ 31), which it found ambiguous. (Chiu, at
p. 164.) It then explained that the purpose served by the natural and probable
consequences theory in the murder context is deterrence—deterring people from aiding
or encouraging the commission of offenses that would naturally and foreseeably result in
an unlawful killing. (Id. at p. 165.) It thereafter concluded that purpose would not be
served by holding an aider and abettor responsible for premeditated murder under a


                                             17
natural and probable consequences theory because the perpetrator’s premeditative state is
too personal, uniquely subjective and attenuated. (Id. at p. 166.)
              Faced with a question identical to the one in this case, the majority of
another panel of this court recently found the reasoning and holding in Chiu compel the
conclusion that an aiding and abetting defendant may not be convicted of attempted first
degree murder under a natural and probable consequences theory. (People v. Mejia
(2019) 40 Cal.App.5th 42, 50, review granted Jan. 2, 2020, S258796, (Mejia).) The crux
of its rationale was as follows: “The critical holding in Chiu is that the perpetrator’s
mental state of premeditation and deliberation ‘is too attenuated to impose aider and
abettor liability for first degree murder under the natural and probable consequences
doctrine.’ [Citation.] It follows then that in the context of attempted murder, the
perpetrator’s mental state of premeditation and deliberation is equally too attenuated to
impose liability for premeditation and deliberation on an aider and abettor under the
natural and probable consequences doctrine. The unique mental state of willfulness,
premeditation, and deliberation is no less subjective and personal in the context of
attempted murder than it is in the context of murder.” (Id. at p. 49.)
              The analysis in Mejia is compelling because it is logically impossible to
adhere to both Favor and Chiu. We recognize, however, that the California Supreme
Court will have the final word on the Mejia court’s conclusion during its review of both
Lopez, supra, 38 Cal.App.5th 1087 and Mejia. If the California Supreme Court agrees
that Mejia was correctly decided, the jury’s special finding here of deliberation and
premeditation would fall as a matter of state law. If the California Supreme Court
decides otherwise, the special finding of deliberation and premeditation would
nevertheless necessarily be vacated under the United States Supreme Court’s construction
of the Sixth Amendment in Alleyne, a topic to which we now turn.




                                             18
              E. We are Bound to Follow Alleyne’s Interpretation of the Sixth
              Amendment Which Rejected Favor’s Ratio Decidendi
              In Alleyne, supra, 570, U.S. 99, a case decided approximately two years
after Favor, the United States Supreme Court held that the Sixth Amendment requires
any fact that, by law, increases the mandatory minimum penalty for a crime to be treated
as an “element” of the crime, meaning it must be submitted to the jury and found true
beyond a reasonable doubt. (Alleyne, supra, 570 U.S. at p. 103.) The high court based
the holding on its earlier decision in Apprendi v. New Jersey (2000) 530 U.S. 466, in
which it concluded any fact that increases the maximum penalty for a crime is an element
of the offense which a jury must find true beyond a reasonable doubt. (Alleyne, at pp.
111-112.)
              Under section 664, subdivision (a), the minimum prison term for attempted
murder, where there is no finding of deliberation and premeditation, is five years. Where
a finding of deliberation and premeditation has been made, the penalty is a life term
(ibid.), which has a minimum parole period of seven years. (§ 3046, subdivision (a)(1).)
Thus, it is beyond dispute that a finding of deliberation and premeditation increases the
minimum penalty for attempted murder. The fact that triggers imposition of the
increased penalty under the natural and probable consequences doctrine is that “‘“a
reasonable person in the defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the act aided and
abetted.”’” (Chiu, supra at p. 162.)
              The issue, then, is whether the foreseeability of a deliberate and
premeditated murder is an “element” of the charged offense of attempted murder, at least
for Sixth Amendment purposes. Defendant’s argument here mirrors the defendant’s
argument in Favor. The defendant in Favor contended “that the willful, deliberate, and
premeditated findings should be vacated. He argue[d] that the trial court failed to instruct
that the jury had to find, not only that the attempted murder was a natural and probable


                                             19
consequence of the robberies, but also that the perpetrator’s willfulness, deliberation, and
premeditation were natural and probable consequences.” (Favor, supra, 54 Cal.4th at p.
874) Favor squarely held foreseeability of premeditation was not an element of the
offense of attempted murder but did not analyze the issue under the Sixth Amendment.
As explained in Favor, “[A]ttempted premeditated murder and attempted unpremeditated
murder are not separate offenses. Attempted murder is not divided into different degrees.
[Citations.] ‘[T]he provision in section 664, subdivision (a), imposing a greater
punishment for an attempt to commit a murder that is “willful, deliberate, and
premeditated” does not create a greater degree of attempted murder but, rather,
constitutes a penalty provision that prescribes an increase in punishment (a greater base
term) for the offense of attempted murder.’ [Citation.] ‘[T]he statutory language
employed in prescribing an additional penalty for attempted murder . . . reflects a
legislative intent to create a penalty provision specifying a greater term, rather than a
substantive offense.’” (Favor, supra, 54 Cal.4th at pp. 876-877.)
              That analysis was rejected by Alleyne, at least for purposes of deciding
whether defendant received a fair trial by jury under the Sixth Amendment. “The
essential Sixth Amendment inquiry is whether a fact is an element of the crime. 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.”
(Alleyne, supra, 570 U.S. at p. 114-115.) “Any fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable
doubt.” (Id. at p. 103.) “Decisions of the United States Supreme Court are binding not
only on all of the lower federal courts, but also on state courts when a federal question is
involved, such as constitutionality of a statute or construction of the federal Constitution
or statutes.” (9 Witkin, California Procedure (5th ed. 2020) Appeal, § 505; Moon v.
Martin (1921) 185 Cal. 361, 366 [“state courts are bound by the decision of the supreme



                                             20
court of the United States on questions depending upon the construction of the United
States constitution”].)
              Here, the jury was instructed as follows: “Before you may decide whether
[defendant] is guilty of attempted murder . . . , under a Natural and Probable
Consequences theory of guilt, you must decide whether he is guilty of disturbing the
peace in violation of section 415[, subdivision (1)] of the Penal Code. [¶] To prove that
the defendant is guilty of attempted murder . . . , the people must prove”: “1. The
defendant is guilty of disturbing the peace in violation of section 415[, subdivision (1)] of
the Penal Code;’ 2. During the commission of disturbing the peace in violation of section
415[, subdivision (1)] of the Penal Code a coparticipant in that disturbing the peace in
violation of section 415[, subdivision (1)] of the Penal Code 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 the attempted murder . . .
was a natural and probable consequence of the commission of the disturbing the peace in
violation of section 415(1) of the Penal Code.” The jury was not instructed that in order
to find the special finding true, it needed to find that attempted premeditated murder was
a natural and probable consequence of disturbing the peace.
              Under the teaching of Alleyne, where defendant is prosecuted for attempted
premeditated murder under the natural and probable consequences doctrine, the jury must
be instructed that it needs to find the attempted premeditated murder was a natural and
probable consequence of disturbing the peace. The court’s failure to do so here deprived
defendant of his Sixth Amendment right to a fair trial. Because this violation of
defendant’s federal constitutional rights was not harmless beyond a reasonable doubt
(Chapman v. California (1967) 386 U.S. 18, 24), we vacate the findings that the
attempted murders were willful, deliberate, and premeditated. We remand the matter to
the trial court to provide the prosecution an opportunity to decide whether to retry
defendant on these special findings with appropriate jury instructions.

                                             21
Sufficiency of the Evidence
              The prosecution proceeded against defendant on an aiding and abetting,
natural and probable consequences theory, with the alleged target crime being unlawfully
challenging another person in a public place to fight (§ 415, subd. (1)). Defendant’s
counsel objected to instructing the jury on that crime, arguing the facts in this case, as a
matter of law, did not demonstrate a challenge to fight, within the meaning of section
415. The trial court disagreed and gave the relevant instruction. Defendant contends
there was insufficient evidence to support giving the instruction, as well as a lack of
substantial evidence supporting his convictions based thereon. We conclude otherwise.
              In a criminal case, the trial court “must instruct the jury on every theory
that is supported by substantial evidence, that is, evidence that would allow a reasonable
jury to make a determination in accordance with the theory presented under the proper
standard of proof. [Citation.] We review the trial court’s decision de novo. In so doing,
we must determine whether there was indeed sufficient evidence to support the giving of
[the challenged] instruction. Stated differently, we must determine whether a reasonable
trier of fact could have found beyond a reasonable doubt that defendant committed” the
offense on which the court instructed. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
              Section 415, subdivision (1), imposes misdemeanor liability on “[a]ny
person who unlawfully fights in a public place or challenges another person in a public
place to fight.” “A challenge to fight is prohibited because such a challenge may provoke
a violent response that endangers not only the challenger but any other persons who may
be in the public place where the challenge occurs. Because the statute is aimed at the
inherent danger that a challenge will result in violence, it is irrelevant whether the
challenger intended to actually cause a fight.” (In re Cesar V. (2011) 192 Cal.App.4th
989, 998.)




                                              22
              Here, the evidence demonstrated defendant and Mendoza jumped a fence
from territory claimed by Hard Times into an area bordering the territory claimed by one
of their rival gangs, Santa Nita. They approached three males and asked them, “Where
you from?” The prosecution’s gang expert testified that when gang members “hit up”
others with such a question, it is a form of aggression. They wait for a reply, and then
“things happen” based on the reply. If the response “comes back as a rival, they’re going
to have to engage in a fight.” In other words, according to the expert, “if [gang members
are] initiating contact, they’re expecting to go.”
              From this evidence, a reasonable trier of fact could find beyond a
reasonable doubt that defendant and Mendoza issued a challenge to fight. (See People v.
Medina (2009) 46 Cal.4th 913, 922, 927; In re Cesar V., supra, 192 Cal.App.4th at pp.
998-999.) We reject defendant’s contention that an implied challenge to fight falls
outside the scope of section 415. Defendant provides no legal authority for that
proposition and nothing in the language of the statute suggests such a limitation. And
contrary to defendant’s assertion, it is irrelevant there was a possibility no fight would
ensue. (In re Cesar V., at p. 999 & fn. 5.)
              Because defendant’s argument concerning sufficiency of the evidence to
support his attempted murder conviction is premised on the same facts and law as his
challenge to the court’s instruction on section 415, we likewise find it meritless. (See
People v. Cravens (2012) 53 Cal.4th 500, 508 [under substantial evidence standard of
review, “[t]he conviction shall stand ‘unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support [the conviction]”’”].)




                                              23
                                      DISPOSITION


              The judgment on the three attempted murder convictions is affirmed, but
the special findings that the attempted murders were willful, deliberate, and premeditated
is vacated. The judgment is otherwise affirmed. The matter is remanded to give the
prosecution the opportunity to decide whether to retry defendant on the special findings
under jury instructions consistent with this opinion and for resentencing.




                                                 IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.




                                            24
