Filed 9/12/16 P. v. Roberson CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D069639

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD225297)

FREDRICK DWAYNE ROBERSON
et al.,

         Defendants and Appellants.


         APPEALS from judgments of the Superior Court of San Diego County, Charles G.

Rogers, Judge. Affirmed.

         Boyce & Schaefer and Robert E. Boyce, under appointment by the Court of

Appeal, for Defendant and Appellant Frederick Dwayne Roberson.

         Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant

and Appellant Dontaye Coleman Craig.

         Kamala D. Harris, Attorney General, for Plaintiff and Respondent.

         Codefendants Dontaye Coleman Craig and Fredrick Dwayne Roberson appeal

judgments following a resentencing hearing conducted pursuant to our remittitur in a
prior appeal of this matter. (People v. Craig, et al. (June 5, 2015, D063070) [nonpub.

opn.].) The below background information is partly taken from our prior opinion.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 2012, Craig, Roberson, and another individual who is not a subject of this

appeal, instigated a physical altercation with rival gang members in the Gaslamp Quarter

area of downtown San Diego. During the fight a rival gang member was shot several

times, and stray bullets struck two bystanders, killing one of them. Defendants were

prosecuted as perpetrators, direct aiders and abettors, and aiders and abettors of the target

crimes of simple assault or public fight, the natural and probable consequences of which

were the shootings.

       The jury convicted defendants of first degree murder (Pen. Code,1 § 187, subd.

(a); count 1), attempted murder (§§ 664/187, subd. (a); count 2), and assault with a

firearm (§ 245, subd. (a)(2); count 3). On counts 1 and 2, the jury found true that a

principal personally used a firearm within the meaning of section 12022.53, subdivisions

(b)-(e)(1), and as to counts 1 through 3, it found true the allegation that defendants

committed the offenses for the benefit of, at the direction of, or in association with a

criminal street gang within the meaning of section 186.22, subdivision (b)(1).

       The court sentenced Craig to 11 years eight months, plus 75 years to life.

Roberson admitted to two prior strike convictions (§ 667, subds. (b)-(i)), one prior serious




1      All statutory references are to the Penal Code.
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felony conviction (§ 667, subd. (a)(1)), and one prior prison term (§ 667.5, subd. (a)).

The court sentenced him to 20 years, plus 189 years to life.

       While this case was on appeal the first time, the California Supreme Court

held in People v. Chiu (2014) 59 Cal.4th 155, 158-159 (Chiu) that as a matter of law

there is no aider and abettor culpability for first degree premeditated murder under the

natural and probable consequences doctrine. The People conceded the judgment must be

reversed insofar as defendants' first degree murder convictions are concerned because the

jury was instructed that guilt could be based on the natural and probable consequences

doctrine, and the record did not show beyond a reasonable doubt that the jury did not rely

on the doctrine. We directed the trial court to give the People the option of accepting a

reduction of defendants' first degree murder convictions to second degree murder or

retrying them on the greater offense. (Chiu, supra, at p. 168.)

       We also modified the judgment to vacate Roberson's consecutive five-year gang

enhancement imposed on count 3 under section 186.22, subdivision (b)(1) and replace it

with the 15-year minimum term for parole eligibility required by section 186.22,

subdivision (b)(5). Further, we directed the court to modify defendants' abstracts of

judgment to comport with its oral pronouncement regarding victim restitution. On

remand, the People elected to accept a reduction of both defendants' first degree murder

convictions to second degree murder.

       The court resentenced Craig to a total of 11 years eight months, plus 65 years to

life as follows: On count 1, it imposed 15 years to life and a consecutive 25-year-to-life



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term on the firearm enhancement. On count 2, it imposed an upper term of nine years for

attempted murder and a consecutive 25-year-to-life term on the firearm enhancement

(§ 12022.53, subds. (d), (e)(1)). On count 3, it imposed one year for assault with a

firearm plus one year eight months for the gang enhancement (§ 186.22, subd. (b)(1).)

       The court denied Roberson's motion to strike his prior strike under People v.

Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and sentenced him to a

determinate term of 15 years based on his serious felony prior, and an indeterminate term

of 159 years to life as follows: 45 years to life on the second degree murder conviction

plus 25 years to life for the gang enhancement; on the attempted murder conviction, 39

years to life, plus 25 years to life for the firearm enhancement; on the assault with a

firearm conviction, a 25-year-to-life term.

       Defendants appeal under People v. Wende (1979) 25 Cal.3d 436 (Wende) and

Anders v. California (1967) 386 U.S. 738 (Anders). We offered defendants the

opportunity to file their own briefs on appeal but they did not respond.


                                        DISCUSSION

       Both defendants' appellate counsel state they are unable to identify any reasonably

arguable issues for appeal and have asked this court to review the record for error.

(Wende, supra, 25 Cal.3d 436.) Pursuant to Anders, supra, 386 U.S. 738, Craig's counsel

has identified the following issues in order to assist the court in its search for error:

       (1) Did the trial court abuse its discretion by sentencing Craig to the upper term

on count 2?


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       (2) Did the trial court abuse its discretion by sentencing Craig to serve

consecutive terms on counts 1 and 2?

       (3) Did Craig's sentence constitute cruel and unusual punishment?

       Roberson's counsel has identified the following issues in order to assist the court

in its search for error:

       (1) Did the court err by denying Roberson's Romero motion?

       (2) Did Roberson's sentence constitute cruel and unusual punishment in light of

the fact Roberson was 22 years old when he committed the crimes?

       We have reviewed the entire record consistent with the mandate of Wende, supra,

25 Cal.3d 436 and Anders, supra, 386 U.S. 738. We have not identified any reasonably

arguable issues for reversal on appeal. Craig and Roberson have been represented by

competent counsel on this appeal.

                                      DISPOSITION

       The judgments are affirmed.


                                                                            O'ROURKE, J.

WE CONCUR:


HUFFMAN, Acting P. J.


HALLER, J.




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