Filed 10/8/19 (unmodified opinion attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESUS HUMBERTO MEJIA,

 Defendant and Appellant.

 G052967

 (Super. Ct. No. 09CF3083)

 ORDER MODIFYING OPINION;

 NO CHANGE IN JUDGMENT

It is ordered that the opinion filed on September 18, 2019, be modified as 

follows:

1. On the first page, delete from the list of attorneys the name Kimberly A. 

Donahue, and in its place insert Kimberly A. Donohue.

2. On page nine, last paragraph, the fourth sentence is modified to read in 

full, “Holding the aider and abettor liable for the perpetrator’s mental state under the 

natural and probable consequences doctrine increases a maximum determinate sentence 

of nine years to a possible life sentence of which the defendant must serve seven years 

before parole consideration. (§ 664, subd. (a).)” 
2

These modifications do not change the judgment.

O’LEARY, P. J.

I CONCUR:

IKOLA, J.
Filed 9/18/19 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JESUS HUMBERTO MEJIA,

 Defendant and Appellant.

 G052967

 (Super. Ct. No. 09CF3083)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, John

Conley, Judge. Reversed and remanded.

Athena Shudde, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Julie L. Garland, Senior Assistant Attorney General, Charles C. 

Ragland and Kimberly A. Donahue, Deputy Attorneys General, for Plaintiff and 

Respondent. 
2

A jury convicted Jesus Humberto Mejia of attempted premeditated murder, 

burglary, robbery, street terrorism, and firearm possession. The jury also returned true 

findings on associated weapon and street gang allegations. In bifurcated proceedings, the 

trial court made true findings on prior conviction allegations. Mejia contends the court 

improperly instructed the jury on premeditated attempted murder under the natural and 

probable consequences doctrine. We agree the premeditation and deliberation special 

finding must be reversed.

Mejia also raises sentencing issues, which the Attorney General concedes. 

First, we agree with the parties that the trial court erred in imposing the full 10-year 

sentence for the gun-use enhancement. Second, we acknowledge and agree with the 

parties that a recent change in the law requires that this case be remanded to allow the 

trial court to exercise its discretion to strike the five-year prior conviction enhancement 

imposed pursuant to Penal Code section 667, subdivision (a)(1).1 Finally, we order the 

trial court to correct numerous clerical errors on the abstract of judgment and minute 

order (brought to our attention by the Attorney General). In all other respects, we affirm 

the judgment.

FACTS

Mejia’s primary argument in this appeal concerns instructional error related 

to the attempted murder conviction alleged in count 4. Accordingly, our facts focus on 

that crime. 

Early one morning, Jose Ramirez and his wife, Alberta, heard their car 

alarm sounding. 2 Alberta saw a young man standing at the garage. Jose went to the 

garage and noticed Mejia was outside standing next to a black car talking on a cellphone. 

When Jose entered the garage, he saw the back passenger window of his vehicle was 

 

1

All further statutory references are to the Penal Code, unless otherwise 

indicated.

2

For clarity we use the Ramirezs’ first names. No disrespect is intended.
3

broken. He watched Francisco Rodriguez, who was inside the vehicle, attempting to 

remove the speakers. Jose tried to leave the garage when Rodriguez turned and pointed a

shotgun at him. However, Mejia, who was now holding a pistol, ordered Jose back into 

the garage. 

Alberta, who was standing nearby, was holding a cellphone in her hand. 

Mejia pointed his pistol at her and grabbed her phone. At this point, the apartment 

complex manager arrived and told the two culprits, “Lower your weapon. Don’t be a 

fool. Think about what you’re doing.” 

Rodriguez pointed his shotgun at Jose and pulled the trigger three times, 

but the weapon did not fire. Hearing sirens in the background, Mejia said, “Let’s get out 

of here.” The men left in the black car that had been left outside the garage. 

Rodriguez and Mejia were tried as codefendants. As relevant to this 

appeal, the jury was instructed with CALCRIM Nos. 600 (Attempted Murder), 601 

(Attempted Murder: Premeditated and Deliberation), 400 (Aiding and Abetting: General 

Principles), 401 (Aiding and Abetting: Intended Crimes), and 403 (Natural and Probable 

Consequences Doctrine). 

A jury convicted Mejia of the following crimes: possession of a firearm by 

a felon (§ 12021, subd. (a)(1); counts 1, 11); second degree vehicle burglary (§§ 459, 

460, subd. (b); count 2); second degree robbery (§§ 211, 212.5, subd. (c); count 3); 

attempted premeditated murder (§§ 664, subd. (a)/187, subd. (a); counts 4, 9); attempted 

first degree robbery (§§ 664, subd. (a), 211, 212.5, subd. (a); counts 5, 7); first degree 

burglary (§§ 459, 460, subd. (a); counts 6, 8); and street terrorism (§ 186.22, subd. (a); 

count 10). The jury found true that in counts 3 and 9, Mejia personally used a firearm 

during the commission and attempted commission of such offenses. (§ 12022.53, subd. 

(b).) As to counts 4 and 7, vicarious use of a firearm by a gang member was also found 

to be true. (§ 12022.53, subds. (b), (e)(1).). Many of the counts were found to have been 

committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) The jury 
4

also found true a prior conviction qualifying as a serious felony (§ 667, subd. (a)(1)), and 

two prior convictions qualifying as strikes (§ 667, subds. (d), (e)(2)(A), 1170.12, subds. 

(b), (c)(2)(A)). 

The court sentenced Mejia to an aggregate term of 44 years to life, 

consecutive to a determinate term of 62 years and 4 months. The court imposed the 

middle term of three years on count 3 (second degree robbery), enhanced by 10 years for 

the gang allegation, and further enhanced by 10 years for the use of a firearm; a 

consecutive term of 14 years to life on count 4 (attempted murder) enhanced by 10 years 

for the principal armed gang allegation; the middle term of two years on count 5 

(robbery), plus 10 years for the gang allegation, further enhanced by 10 years for the 

weapon use allegation, to run consecutive to count 4; a consecutive term of eight months 

on count 7 (attempted first degree robbery), enhanced by 10 years for the weapon use 

allegation; and 30 years to life on count 9 (attempted murder), enhanced by 10 years for 

the weapon use allegation, to run consecutive to count 4. The court imposed an 

additional five year term for the prior serious felony conviction. It imposed and stayed 

the sentences on the remaining counts and allegations and ordered those would run 

concurrent with the sentence imposed on count 4. 

DISCUSSION

I. Instructional Error

Mejia contends he was “deprived of his federal due process and fair trial 

rights where the jury was instructed it could find him guilty of premeditated attempted 

murder under the natural and probable consequences doctrine based on a codefendant’s 

premeditation and deliberation.” Mejia cites People v. Chiu (2014) 59 Cal.4th 155 (Chiu) 

for its holding “that a first degree, premeditated and deliberate murder conviction for an 

aider and abettor cannot be based on the natural and probable consequence doctrine as a 

matter of law.” He concedes the California Supreme Court in Chiu did not extend its 

holding to the crime of attempted murder. Mejia also acknowledges the Supreme Court, 
5

in People v. Favor (2012) 54 Cal.4th 868 (Favor), held an aider and abettor may be 

found to have committed attempted murder with premeditation on the basis of the natural 

and probable consequences doctrine. Mejia argues there is no principled reason for any 

distinction between the results in Chiu and in Favor. We agree.

In Favor, a codefendant shot and killed an employee during the course of a 

robbery. (Favor, supra, 54 Cal.4th at pp. 873-874.) At trial, the prosecution’s theory 

was that Favor was guilty of the target offense of robbery as an aider and abettor, and 

guilty of the nontarget offense of attempted murder as a natural and probable 

consequence of the robbery. (Id. at p. 874.) On appeal, Favor argued the trial court 

committed reversible instructional error by failing to instruct the jury that a premeditated 

attempt to murder must have been a natural and probable consequence of the target 

offense. (Ibid.) The court disagreed, holding, “Under the natural and probable 

consequences doctrine, there is no requirement that an aider and abettor reasonably 

foresee an attempted premeditated murder as the natural and probable consequence of the 

target offense. It is sufficient that attempted murder is a reasonably foreseeable 

consequence of the crime aided and abetted, and the attempted murder itself was 

committed willfully, deliberately and with premeditation.” (Id. at p. 880.) 

Two justices dissented in Favor. The dissenting opinion of Justice Liu, 

joined by Justice Kennard, reasoned, “A jury finding of reasonable foreseeability 

provides the crucial nexus that links a defendant’s culpability for aiding and abetting the 

target offense to his criminal liability for the nontarget offense. Without that nexus, there 

is no basis—no legally sufficient theory of causation—to find the defendant culpable for 

the nontarget offense.” (Favor, supra, 54 Cal.4th at p. 882 (dis. opn. of Liu J.).) The 

dissent asserted the majority opinion “disregards the essential causal link that must exist 

between the charged nontarget offense and the target offense aided and abetted by 

defendant.” (Ibid.) They questioned how a defendant could “be convicted of 

premeditated attempted murder on a natural and probable consequences theory when the 
6

jury was never asked to determine whether premeditated attempted murder was a natural 

and probable consequence of the target offense?” (Ibid.)

Two years later, in the Chiu opinion, the Supreme Court held “an aider and 

abettor may not be convicted of first degree premeditated murder under the natural and 

probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at pp. 159-160.) The court 

began by discussing the principles related to the natural and probable consequences 

doctrine as articulated and refined over the years in California case law. (Id. at 

pp. 161-162.) The court noted it had “not previously considered how to instruct the jury 

on aider and abettor liability for first degree premeditated murder under the natural and 

probable consequences doctrine.” (Id. at p. 162.)

In Chiu, the Attorney General urged the Supreme Court to reach the same 

result as it had in Favor, but the Supreme Court declined, finding Favor distinguishable 

in several respects. (Chiu, supra, 59 Cal.4th at p. 163.) The court reasoned that unlike 

Favor, “the issue in the present case does not involve the determination of legislative 

intent as to whom a statute applies.” (Ibid.) Additionally, it reasoned Favor “involved 

the determination of premeditation as a requirement for a statutory penalty provision,”

whereas here the court was now considering premeditation and deliberation as an element 

of first degree murder. “In reaching our result in Favor, we expressly distinguished the 

penalty provision at issue there from the substantive crime of first degree premeditated 

murder on the ground that the latter statute involved a different degree of the offense. 

[Citation.]” (Ibid.) 

Lastly, the Supreme Court indicated the “consequence of imposing liability 

for the penalty provision in Favor [was] considerably less severe than in imposing 

liability for first degree murder under the natural and probable consequences doctrine.” 

(Chiu, supra, 59 Cal.4th at p. 163.) The court discussed the significant disparity in 

sentences between attempted murder with deliberation and premeditation, and first 

degree murder. A defendant convicted of attempted murder with a true finding of 
7

premeditation and deliberation “is subject to a determinate term of five, seven, or nine 

years” plus a “sentence of life with the possibility of parole . . . [with the defendant 

being] eligible for parole after serving a term of at least seven years. [Citation.]” (Ibid., 

§§ 664 subd. (a), 3046, subd. (a)(1).) “On the other hand, a defendant convicted of first 

degree murder must serve a sentence of 25 years to life . . . [and] must serve a minimum 

term of 25 years before parole eligibility. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 163; 

§§ 190, subd. (a), 3046, subd. (a)(2).) “A defendant convicted of second degree murder 

must serve a sentence of 15 years to life, with a minimum term of 15 years before parole 

eligibility. (§§ 190, subd. (a), 3046, subd. (a)(2).)” (Chiu, supra, 59 Cal.4th at p. 163.) 

After concluding Favor was not dispositive of the question before it, the 

Supreme Court engaged in a rigorous review of the “statutory and doctrinal bases of the 

natural and probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at p. 163.) The 

court observed that in the context of murder under the natural and probable consequences 

doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm

or the criminal act that caused that harm. (Id. at p. 164.) The court cited numerous cases 

addressing the issue of foreseeable consequences in relation to the natural and probable 

consequences doctrine. (Id. at pp. 164-165.) The court referred to legal authority holding 

the escalation of a confrontation to a deadly level was a foreseeable consequence of 

simple assault; a deadly shooting was a natural and probable consequence of aiding and 

abetting an assault with a deadly weapon; a fatal shooting was a natural and probable 

consequence of a gang fight; and the natural and probable consequence of any armed 

robbery is that someone may be shot. (Id. at p. 165, and cases cited therein.) 

The Chiu court reiterated what was stated in People v. Luparello (1986) 

187 Cal.App.3d 410, 439. “The natural and probable consequences doctrine is based on 

the principle that liability extends to reach ‘the actual, rather than the planned or 

“intended” crime, committed on the policy [that] . . . aiders and abettors should be 
8

responsible for the criminal harms they have naturally, probably, and foreseeably put in 

motion.’” (Chiu, supra, 59 Cal.4th at pp. 164-165.) 

In the context of murder, the court held “the natural and probable 

consequences doctrine 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.” (Chiu, supra, 59 Cal.4th at 

p. 165.) The court reasoned, 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.” (Id. 

at p. 166.) It noted first degree murder is the unlawful killing of a human being with the 

additional elements of willfulness, premeditation, and deliberation and “[t]hat mental 

state is uniquely subjective and personal.” (Ibid.) “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. 

[Citations.]” (Ibid.) That unique mental state distinguishes a first degree unlawful killing 

from a second degree murder, and triggers a heightened penalty. “Additionally, whether 

a direct perpetrator commits a nontarget offense of murder with or without premeditation 

and deliberation has no effect on the resultant harm. The victim has been killed 

regardless of the perpetrator’s premeditative mental state.” (Ibid.) 

The Supreme Court reached the following conclusion: “Although we have 

stated that an aider and abettor’s ‘punishment need not be finely calibrated to the 

criminal’s mens rea’ [citation], 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.” (Chiu, supra, 59 Cal.4th at p. 166.) 

The court held “that punishment for second degree murder is commensurate 

with a defendant’s culpability for aiding and abetting a target crime that would naturally, 
9

probably, and foreseeably result in a murder under the natural and probable consequences 

doctrine.” (Chiu, supra, 59 Cal.4th at p. 166.) It added, “We further hold that where the 

direct perpetrator is guilty of first degree premeditated murder, the legitimate public 

policy considerations of deterrence and culpability would not be served by allowing a 

defendant to be convicted of that greater offense under the natural and probable 

consequences doctrine.” (Ibid.) 

The Attorney General argues Chiu was limited to first degree murder and 

Favor is controlling. While it is true the Supreme Court in Chiu declined to specifically 

overrule Favor, it is important to consider the question the court was addressing. The 

court was not reexamining Favor in a vacuum. In considering the case before it, the 

Supreme Court responded to the Attorney General’s reliance on Favor and found it 

distinguishable. 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.” (Chiu, supra, 

59 Cal.4th at p. 166.) It follows then that in the context of attempted murder, the 

perpetrator’s mental state of premeditation and deliberation state 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.

Penalty disparity and the public policy of deterrence were also important 

factors in the holding of the Chiu opinion. The court found significant that premeditation 

and deliberation was the distinction between first and second degree murder, and such a 

mental state triggers a heightened penalty. In the case of attempted murder, a finding of 

premeditation and deliberation likewise triggers a heightened penalty. Holding the aider 

and abettor liable for the perpetrator’s mental state under the natural and probable 

consequences doctrine increases a maximum determinate sentence of nine years to a 
10

possible life sentence of which the defendant must serve 16 years before parole 

consideration. (§ 664, subd. (a).) Such an increase in penalty cannot be viewed as de 

minimis or insufficient deterrence. 

Lastly, the Chiu court noted the natural and probable consequences doctrine 

was intended to hold “‘aiders and abettors . . . responsible for the criminal harms that 

they have naturally, probably, and foreseeably put in motion.’ [Citations.]” (Chiu, 

supra, 59 Cal.4th at p. 164.) Finding the mental state of the perpetrator does not increase 

the criminal harm, the court found a defendant cannot be convicted of first degree 

premeditated murder under the natural and probable consequences doctrine. (Id. at 

p. 166.) Similarly, just as the mental state of the perpetrator of a first degree murder does 

not increase the criminal harm done, neither does the mental state of the perpetrator of a 

deliberate and premeditated attempted murder increase the criminal harm.

Applying the legal analysis outlined in the Chiu opinion, we conclude the 

true finding of premeditated and deliberation as an aider and abettor cannot be based on 

the natural and probable consequence doctrine.3 Accordingly, we agree with Mejia’s 

contention the jury was improperly instructed and the premeditation and deliberation 

special finding must be vacated. 

On this record, it does not appear there is adequate evidence to support a 

finding of premeditation and deliberation without relying on a theory of vicarious 

liability. Out of an abundance of caution, we remand the matter because although the 

premeditation and deliberation special finding cannot be supported by an aiding and 

abetting theory, we give the prosecution the opportunity to decide whether to retry Mejia 

on the special finding as a direct perpetrator.4

 

3 Mejia also contends the United States Supreme Court’s holding in Alleyne 

v. United States (2013) 570 U.S. 99 (Alleyne), undermines the holding in Favor. Finding 

Chiu dispositive, we need not address the applicability of Alleyne.

4

The prosecutor’s comments in closing argument reflect the prosecution was 

proceeding on a natural and probable consequences theory in this trial. Specifically, the 
11

II. Sentencing Error

A. Gun-Use Enhancement

Mejia and the Attorney General agree the trial court erred in imposing the 

full 10-year sentence on count 7 for the gun-use enhancement (§ 12022.53, subds. (b), 

(d)(1)), and agrees the correct term is three years and four months pursuant to section 

1170.1. Accordingly, we order the trial court to modify the sentence on count 7 to reflect 

the proper term of three years and four months for the enhancement. 

B. Sentence for First and Second Degree Attempted Robberies (Counts 3 & 7)

The trial court imposed a term of eight months on count 7 (first degree 

attempted robbery). This part of the calculation was correct. The first degree robbery in 

this case was punishable by a term of three, four, or six years. (§ 213, subd. (a)(l)(B).) 

Those terms are halved under section 664 for an attempted first degree robbery, making 

the sentencing triad 18 months, two years, or three years. (§ 664, subd. (a).) Pursuant to 

section 1170.1, subdivision (a), the court imposed one-third the midterm (one third of two 

years is eight months).

The court imposed a three-year sentence on count 3 (an appropriate 

midterm for second degree robbery). (§ 213, subd. (a)(l)(A).) Accordingly, the court 

indicated the total term for counts 3 and 7 would be three years and eight months. This

calculation was also correct.

However, later in the proceedings the court indicated the sentences on 

counts 3 and 7 would be doubled pursuant to the Three Strikes law. (§ 667, subd. (e).) It 

stated this would result in a sentence of seven years and six months on counts 3 and 7. 

This was incorrect.

Applying the Three Strikes law doubling provision, the three-year sentence 

on count 3 would be doubled to six years, and the consecutive sentence of eight months 

 

prosecutor offered the following argument on the issue of premeditation and deliberation: 

“When I’m saying ‘defendant’ here, I am wrapping [Mejia] into Francisco Rodriguez.” 
12

on count 7 would be doubled to 16 months. The resulting total term on counts 3 and 7 

would be seven years and four months, not seven years and six months. We recognize 

the court may have simply misspoken, but the matter must be remanded for resentencing 

on count 7 because the oral pronouncement was incorrect. 

III. Clerical Errors

A. Application of Section 654

Mejia found a discrepancy between the court’s oral pronouncement and its 

minutes/abstract of judgment. A trial court’s oral pronouncement of judgment is the 

binding judgment, and appellate courts may order modification of clerical errors that fail 

to reflect that judgment properly. (People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.) 

The Attorney General agrees this court should correct the minutes and the abstract of 

judgment to reflect the proper judgment. 

Here, the trial court stayed, pursuant to section 654, Mejia’s sentences on 

counts 1, 2, 5, 8, and 10. The abstract of judgment/minutes indicate those terms are to be 

served concurrently. We order the trial court to correct the abstract of judgment and 

court minutes to reflect sentences on counts 1, 2, 5, 8, and 10, are imposed and stayed 

pursuant to section 654.

B. Three Strikes Law

On counts 3 and 7, the Attorney General noticed there was a discrepancy 

between the trial court’s oral pronouncement of judgment and the minutes and abstract of 

judgment. The trial court stated it was doubling Mejia’s sentences on counts 3 and 7 

under the “Three Strikes” law. However, the abstract of judgment failed to account for 

the increased sentence. The Attorney General is correct in asserting the abstract of 

judgment did not reflect the court’s intention to double the sentences on counts 3 and 7. 

But because the court’s pronouncement of judgment was incorrect, we cannot simply 

order a correction of the minute order. The matter must be remanded for resentencing 

and a new abstract of judgment. 
13

C. Prior Serious Felony Conviction Enhancement

The Attorney General correctly points out the section 667, subdivision 

(a)(l), enhancement should not appear twice in the abstract of judgment. The trial court 

imposed the enhancement only once, and it was properly indicated in the abstract of 

judgment of the determinate sentence. We order the trial court to delete this 

enhancement from the abstract of judgment on the indeterminate sentence.

D. Section 669

The court’s minutes indicate Mejia must serve his determinate sentence 

“consecutively to the defendant’s indeterminate sentence.” As correctly noted by the 

Attorney General, when a defendant is sentenced to both a determinate and an 

indeterminate sentence, the determinate sentence is served first. (§ 669.) We order the 

court to modify the court minutes to indicate Mejia must serve his determinate sentence 

first, followed by his indeterminate sentence. 

E. Total Determinate Term

As noticed by the Attorney General, due to the above modifications, the 

abstract of judgment will no longer have an accurate total time. Because the matter is 

being remanded for resentencing, we are confident the court’s new abstract of judgment 

will reflect a new total determinate term after taking into account the orders and 

disposition of this opinion. 

IV. New Sentencing Legislation

After briefing was completed, Mejia requested permission to file a 

supplemental brief on Senate Bill No. 1393, signed by the governor on September 30, 

2018. The new law gives trial courts the discretion to strike the punishment for serious 

felony convictions as defined in section 667, subdivision (a)(1). We permitted Mejia and 

the Attorney General to file supplemental briefs. Mejia also requested we take judicial 

notice of the Supreme Court’s dockets in two cases. (People v. Gibson, Case no. 
14

S250914 and People v. Johnson, Case no. S250283). We deny this request because this 

information was unnecessary for us to resolve this issue.

The Attorney General concedes that if Senate Bill No. 1393 took effect

before Mejia’s judgment became final, the new law would apply to him retroactively. 

The law became effective January 1, 2019. Accordingly, we accept the Attorney

General’s concession. We reverse the trial court’s imposition of the five-year 

enhancement and remand this issue for resentencing so the trial court may consider 

whether to exercise its recently conferred discretion to strike the five-year prior 

conviction enhancement imposed pursuant to section 667, subdivision (a)(1).

DISPOSITION

We conclude the true finding of premeditated and deliberation as an aider 

and abettor cannot be based on the natural and probable consequence doctrine. 

Therefore, the premeditation and deliberation special finding must be vacated and the 

matter remanded to give the prosecution the opportunity to decide whether to retry Mejia 

on the special finding as a direct perpetrator. 

The case is also remanded so the trial court may consider whether to 

exercise its recently conferred discretion to strike the five-year prior conviction 

enhancement pursuant to section 667, subdivision (a)(1).

During resentencing, we direct the trial court to correct several errors and 

resentence Mejia as follows: (1) modify the sentence on count 7 for the gun-use 

enhancement (§ 12022.53, subds. (b), (d)(1)), to three years four months; and (2) in 

applying the Three Strikes law to the underlying sentences on counts 3 and 7, modify the 

final calculated sentence to be a total of seven years and four months (not seven years and 

six months as previously declared on the record).

The trial court is further directed to correct the abstract of judgment and 

minute order to correct the following clerical errors: 
15

(1) The sentences on counts 1, 2, 5, 8, and 10, are imposed and stayed 

pursuant to section 654; 

(2) The court’s intention to double the sentences on counts 3 and 7; 

(3) Deletion of the section 667, subdivision (a)(l), enhancement from the 

indeterminate abstract of judgment; 

(4) The minute order should reflect the determinate sentence shall be served 

first followed by the indeterminate sentence; and 

(5) The minute order and abstract of judgment should indicate the newly

recalculated total time imposed for the determinate term. 

The trial court shall forward the new abstract of judgment reflecting the 

above modifications and corrections to the Department of Corrections and Rehabilitation. 

Finally, we deny the request for judicial notice. In all other respects, the 

judgment is affirmed. 

O’LEARY, P. J.

I CONCUR:

IKOLA, J.
1

BEDSWORTH, J., Dissenting:

I respectfully dissent. The primary issue in this case is whether the natural 

and probable consequences theory of aiding and abetting can be used to support a 

conviction for attempted premeditated murder. In People v. Favor (2012) 54 Cal.4th 868 

(Favor), our Supreme Court answered that question in the affirmative. Two years later, 

in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), the court held the natural and probable 

consequences doctrine cannot be used to support a conviction for premeditated murder. 

In so holding, Chiu did not overrule Favor; it simply determined there were sufficient 

distinctions between the crimes of attempted premeditated murder and premeditated 

murder to justify different results in those two cases. Thus it seems to be Favor remains 

good law and controls the outcome in this case. (See People v. Gallardo (2017) 18 

Cal.App.5th 51, 82-85.) 

My colleagues have concluded there is “no principled distinction” between 

Favor and Chiu, and they may be right. But my understanding of stare decisis is that the 

Supreme Court tell us whether that is the case. Until they do, I feel Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, requires us to follow Favor.

BEDSWORTH, J.