Filed 4/14/14 P. v. Burton CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B238653

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. BA347302)
         v.

JOSHUA BURTON et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County,
Anne H. Egerton, Judge. Affirmed in part, reversed in part, and remanded for
resentencing.
         Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Appellant Joshua Burton.
         Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant
and Appellant Anthony Mitchell.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Sonya Roth, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
          Defendants and appellants, Joshua Burton and Anthony Mitchell, appeal their
convictions for first degree murder with a multiple murder special circumstance, second
degree murder, burglary and robbery, with firearm use and criminal street gang
enhancements (Pen. Code, §§ 187, 190.2, subd. (a)(3), 459, 211, 12022.53, 186.22,
subd. (b)).1 They were sentenced to state prison for terms of life without possibility of
parole.
          The judgments are affirmed in part, reversed in part, and remanded for
resentencing.
                                       BACKGROUND
          Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
          1. Prosecution evidence.
          On December 24, 2007, Los Angeles Police Detective Stephanie Rosa responded
to a homicide call at 6733 11th Avenue in Los Angeles. Upon arrival, Rosa and her
partner entered apartment number 6 and found Shelton Summerall dead on the living
room floor, and Monica Youngblood dead in the bedroom. There were two .45-caliber
cartridge casings in the living room and one in the bedroom. The autopsies showed
Summerall had sustained three fatal gunshot wounds, two to the head and one to the
chest, and Youngblood had sustained a single fatal gunshot wound to the head.
          On January 10, 2008, Detective Rosa met with A.A., who lived in the same
apartment complex as Summerall. On the night of the killings, A.A. saw defendants
Mitchell and Burton knocking on Summerall’s door at about midnight. Burton went into
Summerall’s apartment, followed by Mitchell five minutes later. About 10 minutes after
that, A.A. heard gunshots. A.A. later saw the defendants leave Summerall’s apartment
through a back window.




1
          All further references are to the Penal Code unless otherwise specified.

                                               2
       B.B. testified Summerall was an old friend who occasionally hired him to do
chores around the apartment. B.B. had been inside Summerall’s bedroom and observed
his five or six watches. B.B. particularly liked “a purple watch with diamonds inside.”
Summerall kept money in a shoebox in his bedroom. B.B. knew Summerall made his
living selling crack cocaine.
       On the night of the shootings, B.B. was visiting his friend C.C. who lived in the
same apartment complex as Summerall. When B.B. and C.C. walked into the building
late that night, they saw the defendants standing outside. Burton asked C.C. if he and
B.B. “want[ed] to work.” After C.C. declined this invitation, he and B.B. went into
C.C.’s apartment. Shortly thereafter, B.B. saw the defendants knocking on Summerall’s
door. He then heard five gunshots and later saw Mitchell carrying Summerall’s shoebox
in a clear bag. A few days later, B.B. saw Mitchell wearing Summerall’s watch.
According to B.B., Burton bought a brand new Cadillac after the killings.
       D.D., a Rolling 60’s gang member who was a close friend of Summerall’s,
testified that a few days before the killings he witnessed a discussion between the
defendants and a high-ranking gang member named Scooby. Asked if Scooby was a
“shot-caller,” D.D. testified, “You could say he was” because he had “authority over
anybody.” Scooby told the defendants Summerall “shouldn’t be selling drugs like he is
because nobody could make money.” Scooby also said, “Something’s got to be done,”
which meant Summerall had to be killed. D.D. left and called Summerall to warn him
that Scooby was out to get him. The next time D.D. saw Mitchell, after the killings,
Mitchell tried to sell him Summerall’s diamond watch. D.D. also saw Mitchell driving a
brand-new Impala.
       The prosecution’s gang expert testified the Rolling 60’s are the largest gang in
Los Angeles with 1,200 documented members, 600 of whom are active. Because of its
size, there are various cliques within the gang and tensions can arise between them.
The defendants were self-admitted members of the Rolling 60’s who belonged to the
Brynhurst clique, the same clique to which D.D. belonged. Summerall was also a
Rolling 60’s member, but he belonged to the Front 60’s clique. Scooby was from still

                                             3
another clique called the Avenues. The gang expert was acquainted with Summerall,
who was always well-dressed, owned various cars including a brand new Corvette, and
carried around thousands of dollars in cash. Asked to assume Summerall had been
dealing drugs from his apartment, which was in territory controlled by another clique of
the same gang, the expert opined the killings had been committed for the benefit of the
Rolling 60’s gang because members of the other cliques would have felt disrespected and
threatened by the fact Summerall had been depriving them of drug profits. In addition,
the young gang members doing the killing would gain status for having successfully
carried out the orders of a senior gang member.
       The gang expert was asked the following hypothetical question: “[A]ssume
there’s two Rolling 60s from a particular clique that go commit a violent crime against a
member of a rival clique or a clique within Rolling 60s that is sometimes rival with them.
We have only one shooter during the course of that violent crime. What is the role of the
non shooter, assuming they’re working together?” The expert replied, “The non shooter
. . . is there for help in case things go sideways. . . . [and] to make sure there’s no
witnesses or police within that area when the crime is committed.” Asked what might be
the consequences for an innocent bystander who happened to witness this violent crime,
the expert answered: “that person getting killed, because they don’t want any witnesses
being present, because they don’t want that to be leaked to the police” Asked a
hypothetical question based on the particular facts of this case, the expert opined that
killing the potential eyewitness would have been done for the gang’s benefit: “They kill
[the intended target], and then they kill the witness because, obviously, that witness was a
threat to them because they [sic] saw their faces or saw the crime when it happened, so
they want nobody to be able to testify against them or report them to [the] police.”




                                               4
       2. Defense evidence.
       Dyran Culpepper testified he lived in the apartment next door to Summerall, and
Burton lived with his girlfriend in the same building. On the night of the killings,
Culpepper was in front of the building when he heard gunshots. Walking over to see if
anyone had been injured, Culpepper saw Burton peeking out of his apartment door.
Culpepper knocked on Summerall’s door, but left when no one answered. The next day
he went into the apartment and found Summerall’s body.
       Shambrea Butler is the mother of Burton’s child. She lived with Burton in an
upper-floor apartment in the same complex as Summerall. On the night of the killings,
she and Burton were watching television when they heard gunshots. They went
downstairs together and saw Culpepper walking into the building. Culpepper asked if
Burton had heard anything. After a minute, Butler and Burton went back upstairs. Butler
testified Burton did not purchase a new Cadillac. Butler’s mother had an old model white
Cadillac which Burton drove on occasion.
       Quiondra Blockman is the mother of Mitchell’s child. On the night of the killings,
Mitchell was with Blockman at a party from 1:00 p.m. until 11:00 p.m. After getting
home, they washed and fed the baby and then went to sleep. The baby awoke every few
hours after that and Mitchell would get up to feed and tend to him. Mitchell was there all
night and did not leave the apartment until the next afternoon.
       A defense gang expert testified shot-callers do not have authority over members
from other cliques. A gang member’s reputation would not be enhanced by killing a
fellow gang member; indeed, it could hurt his standing in the gang. It was doubtful a
gang member would allow a rival clique member or the friend of a targeted individual to
be present during a discussion about murdering someone.




                                             5
                                     CONTENTIONS
       1. The trial court erred by failing to instruct the jury, sua sponte, with
CALCRIM No. 417 on the natural and probable consequences of a conspiracy.
       2. The trial court erred by failing to instruct the jury, sua sponte, with
CALCRIM No. 358 on viewing a defendant’s extra-judicial statements with suspicion.
       3. There was cumulative error.
       4. Defendants’ burglary sentences constituted improper multiple punishment
under section 654.
       5. Defendants’ sentences on counts 3 and 4 are invalid.
       6. Defendants’ life-without-possibility-of-parole sentences on count 2 are invalid.
                                         DISCUSSION
       1. Trial court erred by failing to instruct on CALCRIM No. 417.
       Defendants contend their second degree murder convictions for killing
Youngblood (count 2) must be reversed because the trial court failed, sua sponte, to
instruct the jury with CALCRIM No. 417 on the natural and probable consequences of a
conspiracy. Although the trial court erred by failing to give this jury instruction, the error
was harmless.
              a. Background.
       At a jury instruction conference, the prosecutor asked the trial court to give
CALCRIM No. 416 (evidence of uncharged conspiracy), which states in pertinent part:
“The People have presented evidence of a conspiracy. A member of a conspiracy is
criminally responsible for the acts or statements of any other member of the conspiracy
done to help accomplish the goal of the conspiracy.” The prosecutor argued this
instruction was warranted because the evidence showed Scooby had ordered Summerall’s
killing and both defendants entered Summerall’s apartment, but “we don’t know who the
shooter is, if they both were or not.”




                                              6
       When the trial court asked if the prosecutor also wanted CALCRIM No. 417
(liability for coconspirators’ acts based on principle of natural and probable
consequences) the following colloquy occurred:
       “[The prosecutor]: I’m not asking for natural and probable consequences because
I think the object of the conspiracy was murder. I don’t think there was a target crime
and then it just became a murder through circumstances during the course of a robbery or
whatnot.
       “The Court: Or to beat him up.
       “[The prosecutor]: That type of thing. [¶] It was clearly – the intent, based on the
evidence, was to go in there and kill him. [¶] So I think [CALCRIM No.] 417 when we
say a member of a conspiracy –
       “The Court: I think we don’t need it then because [CALCRIM No.] 416, the
second sentence says a member is criminally responsible for acts of other members. [¶]
. . . I [don’t] think we need [CALCRIM No.] 417 for just that reason.”
       The trial court later noted: “People are requesting [CALCRIM No.] 416, which
I’m giving over vigorous defense objection.” The trial court did not give CALCRIM
No. 417, which would have told the jury: “A member of a conspiracy is criminally
responsible for the crimes that he or she conspires to commit, no matter which member of
the conspiracy commits the crime. [¶] A member of a conspiracy is also criminally
responsible for any act of any member of the conspiracy if that act is done to further the
conspiracy and that act is a natural and probable consequence of the common plan or
design of the conspiracy. This rule applies even if the act was not intended as part of the
original plan. . . . [¶] A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In deciding
whether a consequence is natural and probable, consider all of the circumstances
established by the evidence.” (First italics added.)




                                             7
              b. Standard of Review.
       “Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact that, we believe, is however predominantly
legal. As such, it should be examined without deference.” (People v. Waidla (2000)
22 Cal.4th 690, 733.) The failure to instruct on an element of an offense is subject to
Chapman2 harmless error analysis. (See Neder v. United States (1999) 527 U.S. 1, 18
[119 S.Ct. 1827] [“Is it clear beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?”].)
              c. Discussion.
       Mitchell argues the trial court erred by failing to couple CALCRIM No. 416 with
either CALCRIM No. 417 or some equivalent instruction because “[t]he evidence
supported a reasonable doubt as to which of two scenarios occurred: (1) both defendants
were involved in the killing of Monica Youngblood . . . or (2) while one defendant was in
the living room, the other defendant found Ms. Youngblood in the bedroom and killed
her without the other defendant’s even knowing of her presence before she was killed.
In the latter scenario, it was for the jury to decide whether or not Ms. Youngblood’s
killing was a natural and probable consequence of the . . . conspiracy to kill
[Summerall].”
       Mitchell acknowledges there was evidence the defendants conspired to murder
Summerall at Scooby’s behest and went to Summerall’s apartment to carry out the plan,
but he argues there was no evidence any member of the conspiracy contemplated
Youngblood’s presence at the scene. Moreover, he argues, “[t]here was no evidence as to
what either . . . Mitchell or Burton individually did, saw, heard, or said in [Summerall’s]
apartment.” As a result, Mitchell asserts, the natural and probable consequences doctrine
was essential to gauge the defendants’ culpability for killing Youngblood because she
was not an obvious target of the conspiracy.


2
       Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824].

                                               8
       “ ‘The general rule is well settled that where several parties conspire or combine
together to commit any unlawful act, each is criminally responsible for the acts of his
associates or confederates committed in furtherance of any prosecution of the common
design for which they combine. In contemplation of law the act of one is the act of all.
Each is responsible for everything done by his confederates, which follows incidentally
in the execution of the common design as one of its probable and natural consequences,
even though it was not intended as a part of the original design or common plan.
Nevertheless the act must be the ordinary and probable effect of the wrongful act
specifically agreed on, so that the connection between them may be reasonably apparent,
and not a fresh and independent product of the mind of one of the confederates outside
of, or foreign to, the common design. Even if the common design is unlawful, and if one
member of the party departs from the original design as agreed upon by all of the
members, and does an act which was not only not contemplated by those who entered
into the common purpose, but was not in furtherance thereof, and not the natural or
legitimate consequence of anything connected therewith, the person guilty of such act, if
it was itself unlawful, would alone be responsible therefor.” (People v. Kauffman (1907)
152 Cal. 331, 334.) “[W]hether or not the act committed was the ordinary and probable
effect of the common design or whether it was a fresh and independent product of the
mind of one of the conspirators, outside of, or foreign to, the common design, is a
question of fact for the jury, [citations].” (Id. at p. 335, italics added.)
       In People v. Zielesch (2009) 179 Cal.App.4th 731, Zielesch bailed Volarvich out
of jail and asked him, in return, to kill the man who had been sleeping with Zielesch’s
wife. Zielesch furnished Volarvich with a gun and $400 to buy methamphetamine.
The next day, Volarvich was stopped by a CHP officer for a traffic violation. High on
the methamphetamine, and afraid of going back to jail, Volarvich shot and killed the
officer without any provocation. Zielesch was convicted for conspiring to kill his wife’s
boyfriend and also for murdering the CHP officer. On appeal, he sought reversal of the
murder conviction on the ground the officer’s shooting had not been in furtherance of the
conspiracy and was, therefore, unforeseeable.

                                                9
       Citing Kaufman and other case law, Zielesch noted: “The law has been settled for
more than a century that each member of a conspiracy is criminally responsible for the
acts of fellow conspirators committed in furtherance of, and which follow as a natural
and probable consequence of, the conspiracy, even though such acts were not intended by
the conspirators as a part of their common unlawful design. [Citations.]” (People v.
Zielesch, supra, 179 Cal.App.4th at p. 739.) “The question whether an unplanned crime
is a natural and probable consequence of a conspiracy to commit the intended crime ‘is
not whether the aider and abettor actually foresaw the additional crime, but whether,
judged objectively, [the unplanned crime] was reasonably foreseeable.’ [Citation.] To
be reasonably foreseeable ‘ “ ‘[t]he consequence need not have been a strong probability;
a possible consequence which might reasonably have been contemplated is enough. . . .’
[Citation.]” ’ [Citation.] Whether the unplanned act was a ‘reasonably foreseeable
consequence’ of the conspiracy must be ‘evaluated under all the factual circumstances of
the individual case’ and ‘is a factual issue to be resolved by the jury’ [citation], whose
determination is conclusive if supported by substantial evidence. [Citations.] [¶]
Properly treating the issue as a question of fact, the trial court instructed the jury with
CALCRIM No. 417.” (Id. at pp. 739-740, fn. omitted.)3 The bench note for CALCRIM
No. 417 states: “Give this instruction when there is an issue whether the defendant is
liable for the acts of coconspirators. (See People v. Flores (1992) 7 Cal.App.4th 1350,
1363 [no sua sponte duty when no issue of independent criminal act by coconspirator].)”
       In the case at bar, the jury was never informed of this principle. However, the
error was harmless because all of the trial evidence indicated the only motive for killing
Youngblood was to eliminate a witness to Summerall’s assassination, and that killing a
potential witness was a natural and probable consequence of the conspiracy to kill
Summerall. The forensic evidence indicated Youngblood had been killed execution-



3
      Zielesch went on to hold there was substantial evidence to support the jury’s
conclusion the officer’s murder had been foreseeable.

                                              10
style; she was found lying in a crouched or kneeling position in a corner of the bedroom,
and her only injury was a single gunshot wound which entered near the top of her head
and had a downward trajectory toward the base of her skull. As discussed ante, the gang
expert testified an innocent bystander such as Youngblood would likely be killed in order
to eliminate a potential eyewitness.
       Hence, we conclude the trial court’s error in not giving CALCRIM No. 417 was
harmless because it is “clear beyond a reasonable doubt that a rational jury would have
found the defendant[s] guilty absent the error.” (Neder v. United States, supra, 527 U.S.
at p. 18.)
       2. The trial court erred, but not prejudicially, by failing to instruct the jury with
CALCRIM No. 358 on viewing a defendant’s extra-judicial statement with suspicion.
       Defendants contend the trial court erred by failing to instruct the jury, sua sponte,
with CALCRIM No. 358 on viewing a defendant’s extra-judicial statements with
suspicion. Their focus is on whether the evidence showed they had asked B.B. and C.C.
to act as lookouts on the night of the killings. Although the trial court erred by failing to
give the instruction, we conclude the error was harmless.
              a. Legal principles.
       “It is well established that the trial court must instruct the jury on its own motion
that evidence of a defendant’s unrecorded, out-of-court oral admissions should be viewed
with caution. [Citations.] The purpose of the cautionary language in CALJIC No. 2.71 is
to assist the jury in determining whether the defendant ever made the admissions.
[Citations.] For this reason, the cautionary language is inapplicable to defendant’s
recorded admissions. [Citations.]” (People v. McKinnon (2011) 52 Cal.4th 610, 679.)
“In requiring cautionary instructions . . . the courts of this state have not distinguished
between actual admissions and damaging pre-offense statements of the accused relating
to the crime. [Citations.]” (People v. Lopez (1975) 47 Cal.App.3d 8, 12.)
       “In determining whether the failure to instruct requires reversal, ‘[w]e apply the
normal standard of review for state law error: whether it is reasonably probable the jury
would have reached a result more favorable to defendant had the instruction been given.’

                                              11
[Citations.] ‘ “Since the cautionary instruction is intended to help the jury to determine
whether the statement attributed to the defendant was in fact made, courts examining the
prejudice in failing to give the instruction examine the record to see if there was any
conflict in the evidence about the exact words used, their meaning, or whether the
admissions were repeated accurately. [Citations.]” ’ [Citation.] This court has held to be
harmless the erroneous omission of the cautionary language when, in the absence of such
conflict, a defendant simply denies that he made the statements. [Citation.] Further,
when the trial court otherwise has thoroughly instructed the jury on assessing the
credibility of witnesses, we have concluded the jury was adequately warned to view
their testimony with caution. [Citation.]” (People v. McKinnon, supra, 52 Cal.4th at
pp. 679-680.)
                b. Discussion.
       Burton points out there was conflicting evidence as to what he allegedly said to
B.B. and C.C. before going into Summerall’s apartment. At trial, B.B. testified Burton
asked C.C. if he and B.B. “want[ed] to work.” During his initial interview with Detective
Rosa, B.B. said the question had been whether they wanted to make money. Later in the
same interview, B.B. appeared to agree Burton had asked him and C.C. to be “lookouts,”
but B.B. subsequently distanced himself from that characterization and said they had only
been asked “did we want to make some money.” In a subsequent interview, B.B.
explained that when the defendants asked if he and C.C. wanted “to do some work,” he
understood “work” to be a reference to selling drugs because “they used to tell us to do
that for them a whole lot of times.”
       Burton persuasively argues “[t]hese differences are significant. If Burton asked
[B.B.] and[ C.C.] if they wanted to make money or sell drugs, that could be written off as
having nothing to do with any conspiracy to shoot and kill Summerall. But if Burton
asked them to be ‘lookouts,’ then that is strong evidence that he in fact was part of the
alleged plan to murder Summerall. Therefore, there was a conflict in the evidence
regarding what Burton said to [B.B.] and [C.C.] that probably had a material impact on


                                             12
how the jury would view Burton’s involvement in the shooting. It is for this very reason
that the jury must be instructed to view Burton’s out-of-court statements with caution.”
       Nevertheless, we conclude the trial court’s error in failing to give the cautionary
instruction was harmless. Burton’s alibi defense effectively operated as a denial that he
had said anything at all to B.B. Whatever conflict existed in the evidence, therefore,
stemmed solely from B.B.’s somewhat inconsistent versions of what Burton said to him.
And as to that, the Attorney General notes “the trial court instructed the jury with
CALCRIM 226 on its responsibility to assess the credibility of witnesses, thus any
inconsistency in [B.B.’s] testimony was necessarily resolved by the jury.” The record
shows the trial court told the jury it “must judge the credibility or believability of the
witnesses” by considering such factors as “[h]ow well was the witness able to remember
and describe what happened?”, “what was the witness’s behavior while testifying?”
“[d]id the witness make a statement in the past that is consistent or inconsistent with his
or her testimony?” The jury was also instructed: “Do not automatically reject testimony
just because of inconsistencies or conflicts, consider whether the differences are
important or not. People sometimes honestly forget things or make mistakes about what
they remember.”
       In these circumstances, we conclude the trial court’s error in failing to give
the cautionary instruction was harmless. (See Neder v. United States, supra, 527 U.S.
at p. 18.)
       3. Cumulative error.
       Defendants contend their convictions must be reversed for cumulative error.
However, the two trial errors we have found were “clearly harmless. We therefore reject
[the] claim of cumulative error.” (People v. Hinton (2006) 37 Cal.4th 839, 897.)
       4. Improper multiple punishment under section 654.
       Defendants contend the trial court erred by not staying their sentences for the
count 3 burglary convictions because, under section 654, it constituted improper multiple
punishment. As the Attorney General concedes, this contention has merit.


                                              13
       Section 654, the prohibition against multiple punishment, provides in pertinent
part: “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” “ ‘Whether a course of criminal conduct is divisible and therefore gives rise
to more than one act within the meaning of section 654 depends on the intent and
objective of the actor. If all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more than one.’ [Citation.]”
(People v. Latimer (1993) 5 Cal.4th 1203, 1208.)
       “The question whether section 654 is factually applicable to a given series of
offenses is for the trial court, and the law gives the trial court broad latitude in making
this determination. Its findings on this question must be upheld on appeal if there is any
substantial evidence to support them. [Citations.] ‘We must “view the evidence in a
light most favorable to the respondent and presume in support of the [sentencing] order
the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]” ’ ” (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1313; People v.
McCoy (1992) 9 Cal.App.4th 1578, 1585 [trial court’s finding, whether explicit or
implicit, may not be reversed if supported by substantial evidence].)
       There is no doubt the defendants entered Summerall’s apartment with the intent to
commit murder, so there was necessarily an indivisible course of conduct. Indeed, the
jurors had been instructed that, in order to find the defendants guilty of the burglary
charged in count 3, they had to find the defendants entered a building with the intent to
commit murder. (See People v. Hester (2000) 22 Cal.4th 290, 294 [where burglary
perpetrated in order to commit assault, section 654 prohibited multiple sentencing];
People v. McElrath (1985) 175 Cal.App.3d 178, 191 [if factual basis for burglary
conviction was entry with intent to commit sexual assault, then concurrent term for
burglary conviction was barred by section 654].)
       Defendants’ sentences on count 3 must be stayed pursuant to section 654.


                                              14
       5. Apparent sentencing error regarding count 3 and count 4.
       The defendants contend, and the Attorney General concedes, that the trial court’s
sentencing on count 3 and count 4 (burglary and robbery) was incorrect. As to both
counts, the jury returned true findings pursuant to section 186.22, subdivision (b)(1)(C),
of the street gang enhancement statute. But that section prescribes determinate 10-year
terms, not the indeterminate life terms imposed by the trial court. We will remand to the
trial court for resentencing on count 3 and count 4.
       6. Sentencing error regarding count 2.
       The defendants contend, and the Attorney General properly concedes, they were
impermissibly sentenced to life without possibility of parole on both count 1 and count 2.
       The trial court imposed life-without-possibility-of-parole terms on both count 1
(the first degree murder of Summerall) and count 2 (the second degree murder of
Youngblood). However, section 190.2, subdivision (a)(3), only authorizes a multiple
murder special circumstance finding for first degree murder, not second degree murder.4
Hence, the trial court erroneously imposed life-without-possibility-of-parole terms for the
second degree murder of Youngblood. On remand, the trial court shall correct this
sentencing error.




4
        Section 190.2, subdivision (a) provides: “The penalty for a defendant who is
found guilty of murder in the first degree is death or imprisonment in the state prison for
life without the possibility of parole if one or more of the following special circumstances
has been found under Section 190.4 to be true: [¶] . . . [¶] (3) The defendant, in this
proceeding, has been convicted of more than one offense of murder in the first or second
degree.” (Italics added.)
                                            15
                                     DISPOSITION
       The judgments are affirmed in part, reversed in part, and remanded for
resentencing. Defendants’ convictions are affirmed. Defendants’ sentences on count 3
must be stayed. Defendants’ sentences on counts 2, 3 and 4 are stricken and the trial
court is directed to resentence on those counts in accordance with this opinion. The trial
court is directed to prepare and forward to the Department of Corrections and
Rehabilitation an amended abstract of judgment.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 KLEIN, P. J.


We concur:



              KITCHING, J.




              ALDRICH, J.




                                            16
