Filed 6/9/21 P. v. Inzunza CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA MICHE LLE INZUNZA et al.

,

Defendant s and Appellant s

. B301380

(Los Angeles County Super. Ct. No. LA084400 )

APPEAL from a judgment of the Superior Court of
Los Angeles County

. Michael Jesic , Judge. Affirmed in part and
remanded with dir ections

. Edward H. Schulman , under appointment by the Court of Appeal, for Defendant and Appellant Maria Michelle Inzunza

. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant Rosa Manuela Barrientos. Xavier Becerra, A ttorney General; Lance E. Winters , Chief Assistant Attorney General; Susan Sullivan Pithey , Assistant2

Attorney General; William H

. Shin, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________ ____ A jury convicted defendant s and appellant s Rosa Manuela
Barrientos and Maria Michelle Inzunza of first degree murder (Count 1) and second degree attempted robbery (Count 2)

. As to both Barrientos and Inzunza, the jury found true the special
circumst ance allegation under Penal Code section 190.2, subdivision (a)(17)

. 1 For Barrientos, the jury also found true that
she personally used a firearm pursuant to section 12022.53, subdivision (d) on both counts

. 2
The trial court sentenced Barrientos to lif e without the possibility of parole on the murder count and imposed a
consecutive term of 34 years to life on the attempted robbery

c harge

. Inzunza was sentenced to life without the possibility of

1 All further undesignated section references are to the Penal Code.

2 Barrientos and Inzunza were bo th charged with identical crimes

– count 1, first degree murder in violation of section 187, subdivision (a), and count 2, attempted second degree robbery in violation of section s 211
, 213, subdivision (b). The prosecution also charged that the murder qua lified as a special circumstance under section 190.2, subdivision (a)(17). Barrientos was additionally charged with personally using a firearm under section 12022.53, subdivision (d) on both counts. It was also alleged, Barrientos had previously suf fered a strike prior under the California’s “ Three Strikes ” law. The same prior was alleged as a five

- year prior under section 667, subdivision (a). Finally

, as to both Barrientos and Inzunza, the prosecution alleged that a principal was armed with a fir earm under section 12022, subdivision (a)(1) on both counts.3

parole for the murder count and a consecutive term of thre e years determinate for the robbery charge. Both filed a timely notice of appeal. On appeal Barrientos contends: (1) trial counsel’s failure to
defend constitutes abandonment under U.S. v. Cronic (1984) 466
U.S. 648 ( Cronic ) and requires reversal of bot h counts, (2) trial
court’s sentence on count 2 violate d section 654, (3) trial court’s
second strike sentence must be reversed as unauthorized because the prior conviction was never found true, and (4) trial court’s imposition of consecutive sentences bas ed on factual findings by
the trial court violated her Sixth Amendment right to a jury trial
under Apprendi v. New Jersey (2000) 5 3 0 U.S. 466 ( Apprendi )

. 3
Inzunza contends the trial court’s imposition of life without the possibility of parole on the murde r count violated the Eighth Amendment because the change in law under Senate Bill No.
1437 (2017

- 2018 Reg. Sess.) (SB 1437) , as applied, fails to provide a meaningful basis for distinguishing between those persons deserving of special circumstance from tho se who are not. She additionally raises two other contentions that are identical to those made by Barrientos (contentions 2 and 4)

. As to Barrientos’s contentions, the Attorney General concedes the
second strike prior conviction allegation was never foun d true.
On this as to Barrientos , w e re mand for resentencing on c ount 2. As to Inzunza’s contentions, we agree her sentence on c ount 2
violated section 654 which , like for Barrientos, requires a remand
for resentencing. We otherwise affirm the judgment as to both
Barrientos and Inzunza

.

3 The Apprendi contention was raised by Inzunza, joined by Barrientos.4 FACT UAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
On Saturday

, September 24, 2016, Inzunza’s friend, Cynthia Aguirre along with her boyfriend

, Yana tan Garcia, called
Inzunza to hang out

. Garcia and Aguirre drove to South Central Los Angeles t o pick her up. Aguirre and Inzunza decided to also
invite B arrientos to join them

. Barrientos and Inzunza were involved in a romantic relationship. After Barrientos was picked

up, the four went to Garcia’s house to drink al cohol. Prior to reaching Garcia’s home, t he y went to several liqu or stores to buy alcohol. Once alcohol was obtained, the y headed for
Garcia ’s home to drink and hang out.
After a few hours of drinking, Aguirre left Garcia’s home
with Inzunza and Bar rientos. The three decided to buy more
alcohol. They drove to a liquor store on Sherman Way and
Bellaire Street. Aguirre was told not to park in the liquor store parking lot but instead, to park on the street. Aguirre parked on
Bellaire Street with the emergency lights on. Barrientos and Inzunza got out and went into the store. As Aguirre waited,
Barrientos and Inzunza came running back to the car. Inzunza told Aguirre that Barrientos had gotten into a fight with the
store’s clerk. Aguirre drove awa y and eventually dropped the two
off at Barrientos’s home. Almost immediately, Inzunza called Aguirre to come back. She then took the two to Inzunza’s
mother’s home. The next day, Aguirre heard that “something terrible” occurred at the liquor store and that the police wanted
to talk to her. On September 24, 2016 around 11: 57 p.m., o fficers from the Los Angeles Police Department were dispatched to A&D Liquor
Mart located on Sherman Way and Bellaire in North Hollywood,5

California to investigate a possib le crime

. They located a “demand note” on the ground at the entrance of the market which
said “ Real simple. Give us the fucking money from the register or we will fucking kill you .” The store clerk, Mohammed Kalam

,

was found lying on the ground behind t he counter. He was deceased with a single gunshot wound to his face. The surveillance video from A&D Liquor Mart captured the incident from various angles. The video shows two women approach Kalam who is behind the counter. One of the women

wore bl ack clothing with a Chicago Bulls baseball cap. The other
was in a striped hoodie. The one dressed in black hand ed Kalam
a note which Kalam tossed back. This repeat ed several times

. The one dressed in black then read the note to Kalam. The
woman in th e hoodie pull ed out a handgun and point ed it at
Kalam. As Kalam move d towards a cordless phone, the woman
in the hoodie track ed him with her gun and pull ed the trigger but the gun jam med

. She trie d to unjam the gun and pull ed the trigger again, but the g un did not fire

. After again attempting t o unjam the gun, she raise d the gun and point ed at Kalam’s face

. She pull ed the trigger. This time, the gun fire d dropping Kalam to the ground. The woman in black with the baseball cap reache d over to the regist er but was unable to open it. Both women are captured running out of the store. Homicide detectives from the Los Angeles Police Department obtain ed still photographs from the surveillance
video. Barrientos’s sister identifie d her as the person in the
hoodie. Barrientos was further identified by Inzunza’s mother

, by Barrientos’s brother’s girlfriend, as well as by Aguirre

.6 The demand note was dusted for finger prints. Several latent prints were lifted. The latent prints were compared to prints bel onging to both

. The latent prints matched. On September 24, 2016 around 5: 35 p.m., Barrientos and Inzunza exchanged text messages about “us [ ing ] the strap.” A “strap” is vernacular for a firearm

. Defense Evidence
Neither Barrientos nor Inzunza tes tified or offered any
witnesses or evidence on their behalf.
DISCUSSION
I. Barrientos’s Claim of Trial Counsel’s Abandonment
Barrientos claims that her “[t]rial counsel’s complete failure to subject the prosecution’s case to meaningful adversarial testing affected every aspect of tria l , resulting in the functional equivalent of the complete denial of [her] due process right to a fair trial and her Sixth Amendment right to effective assistance
of counsel. ” Citing Cronic , supra, 466 U.S. 648, Barrientos

con tends prejudice is presumed and a reversal required. We disagree.
A. Legal Principles

“ Under Cronic , if defense counsel ‘ entirely fails to subject
the prosecution ’ s case to meaningful adversarial testing, then
there has been a denial of Sixth Amendment r ights that makes the adversary process itself presumptively unreliable, ’ and the conviction must be reversed without further prejudice analysis. [Citation.] ‘ A complete denial of counsel at a critical stage of the proceedings ’ is sufficient to trigger th e Cronic presumption of prejudice. [Citation.] ‘ But when the defendant is represented by counsel, the [ Cronic ] presumption of prejudice will only stand when counsel entirely failed to subject the prosecution ’ s case to7

meaningful adversarial testing. [Ci tations.] ’ [Citation.] Otherwise, ‘ specific errors and omissions ’ by trial counsel must generally be litigated as ineffective assistance of counsel claims
under Strickland [ v. Washington (1984) 466 U.S. 668 ( Strickland )]

. [Citation.]” ( People v. Banks (2014) 59 Cal.4th 1113, 1169

- 1170 , abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363 , 3 91 & fn. 3 .)
Where the Cronic presumption does not apply, the burden
falls on the defendant challenging her counsel’s performance to
establish relief. ( Strickland , supra, 466 U.S. at p. 687.) T o obtain relief based on a claim of ineffective assistance of counsel,

a n appellant must establish (1) that her counsel’s performance
was so deficient that it amounted to a failure to function as the “counsel” g uaranteed by the Sixth Amendment

, and (2) that the
deficienc y prejudic ed the outcome. ( See Strickland at p. 687; and

see, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1252.) An attorney’s performance is deficient under Strickland when his
conduct f

a l l s below objective standards of reasonableness under prevailing professional norms. ( Strickland, at p. 688.) Prejudice
under Strickland is established where there is a reasonable probability that, absent counsel’s alleged errors, the outcome of the proce eding would have been different. ( Id. at p. 694.) “ A reasonable probability is a probability sufficient to undermine
confidence in the outcome. ” ( Ibid. )
B. Analysis
Barrientos claims the Cronic presumption applies because “[c]ounsel did not file any p retrial motions and did not make any oral motions in limine prior to or during the course of the trial. Counsel initially reserved opening statement but later did not make an opening statement before resting. Counsel made no8

effort to cross examine 13 of the 16 prosecution witnesses at
trial.” Barrientos further argues, “[c]ounsel rested without presenting any affirmative witnesses, evidence or defense. Counsel did not request any jury instructions beyond those proposed by the trial court and did not ob ject to the admission of any of the prosecution exhibits

. . . . Counsel’s abandonment of [Barrientos] became complete once he waived closing argument, a critical stage of trial at which assistance of counsel is vital.” The Attorney General counters , “ [t]his case does not
present t he type of situation addressed by Cronic , where ‘the process loses its character as a confrontation between
adversaries.’ ” ( Cronic, supra , 466 U.S. at pp. 656

- 657.) In support of its position, the Attorney General points to counsel’s adversarial actions taken during the trial including: (1) having a question removed from the juror questionnaire, (2) reading the completed questionnaires, thoroughly questioning prospective jurors, moving to dismiss two jurors for cause, and ex ercising peremptory challenges, (3) making evidentiary objections at trial, (4) strategically agreeing to stipulate to the victim’s cause of death, (5) joining in a defense motion to deny the prosecution’s request to have Aguirre declared as an unavailable witness, (6)

cross

- exa mining three witnesses, (7) discussing with Barrientos her right, and, decision whether to testify, and (8) pointing out errors in the verdict forms before they w e re given to the jury.
Our review of the record shows Barrientos an d Inzunza faced what the prosecutor called “a mountain of evidence.” The video evidence from A&D Liquor Mart, the demand note, the fingerprint match, the testimony of Aguirre placing Barrientos and Inzunza at A&D Liquor Mart when the incident occurred,

an d the identification of the still photographs by family members,9

left no wiggle room whatsoever. Rather than give up as Barrientos claims , counsel for Barrientos fought to defend his
client when circumstances adverse to his client came up during
the trial

. For example, during the prosecutor’s examination of
Barrientos’s mother , Luisa Ilina Camay who w as hostile to the prosecutor’s questions , the prosecutor attempted to have Camay identify Barrientos from a booking photograph. After the prosecutor marked the booking photo as an exhibit, counsel for Barrientos requested a side bar

. “[ Counsel for Barrientos: ] Judge

, we need a sidebar.

“ The Court:

. . . We’re outside the presence of the jury. “[ Counsel for Barrientos: ] It’s a booking photo. I don’t thin k

– – I
think it should be sanitized.

“ The Court: Yeah. I’m going to ask that you fold it so it’s just showing the picture and for the jury just submit a photo. ” When discussing jury instructions with the trial court, counsel for Barrientos sought chan ges to CALCRIM No. 540A 4
from the trial court’s draft :

4 CALCRIM No. 540A is an instruction on the first degree felony

- murder rule for the actual killer

. The instruction as g iven read as follows:

“ The defendants are also charged in Count 1 with murder, under a theory of felony murder.

“ To prove that the defendant is guilty of first degree murder under this theory, the People must prove that:

“ 1. The defendant committed or at tempted to commit Robbery;

“ 2. The defendant intended to commit Robbery;

“ AND

“ 3. While committing or attempting to commit Robbery, the defendant caused the death of another person.10

“ The Court: Okay. Now, as to 540A, [counsel for Barrientos], you had brought up an issue with the c ourt as we were getting ready to go on the record and go over instructions. I know you were

concer ned with the way it’s worded with the defendants’ names being in it. “[ Counsel for Barrientos: ] That’s correct.

“ The Court: Can you explain what you’re

– – you’re concerned where it says, ‘ Defendant Barrientos, ’ and

– – this is as to 540A. That is charg es with murder under the felony rule and then 540 by defendant Maria Inzunza may also be guilty of murder. Your issue is with having their names, and the c ourt almost implying
that they’re the ones who did certain acts? “[ Counsel for Barrientos: ] Right. And I expressed that off the
record. ”
The trial court and all counsel continued to discuss whether
the names were to remain or come out from CALCRIM No. 540A. The prosecutor voiced concern s about using the word
“defendants” in CALCRIM No. 540A as requi ring him to prove
the elements in that instruction as to both Barrientos and

“ A person may be guilty of felony murder even if the killing was unin tentional, accidental, or negligent.

“ To decide whether the defendant committed or attempted to commit Robbery, please refer to the separate instructions that I have given you on that crime. You must apply those instructions when you decide whether the Pe ople have proved first degree murder under a theory of felony murder.

“ The defendant must have intended to commit the felony of Robbery before or at the time that she caused the death.

“ It is not required that the person die immediately, as long as the act causing death occurred while the defendant was committing the felony. ”11

Inzunza, even though only one of them committed the fatal act.
The trial court continued :

“ The Court: I’m not really happy about this. Your theory is that
Rosa Barrientos is t he shooter; is that correct? “[ The Prosecutor: ] Yes.

“ The Court: And that Maria Inzunza was

-- “[ The Prosecutor: ] Did not commit a fatal act.

“ The Court: Right. “[ The Prosecutor: ] Correct.

“ The Court: Over the defense objection I’m going to leave th e names in. I’m changing too many things. “[ Counsel for Barrientos: ] I’m sorry. I strongly object to this because what’s going on

– – what’s going on is it can only be interpre ted by this jury that a specific person did in fact specifically do X, Y, or Z, whatever it is. And that’s not

– – that’s a bad thing because it does imply the c ourt’s taking a position. I don’t care about [the prosecutor’s] theories. I don’t care about any of [it]. It’s for the jury to decide who did what. And the rest
of it falls in place.

“ The Court: No

. I understand that. And that’s just

– – hold on. Let me check the hard copy. “[ Counsel for Barrientos: ] His theory is his theory. All I’m saying is the purpose of the instructions is to guide this jury, not to pick a t heory or pick a party. That’s for [the prosecutor] to explain. ”
The trial court decided to strike Barrientos’s name from
CALCRIM No. 540A. “Meaningful advocacy” as discussed in Cronic must not be
viewed in a vacuum. Appropriate defensive strateg ies of ten depend on the weakness of the prosecutor’s case

. When , as here,12

the prosecutor’s evidence is strong, defensive strategies narrow and become limited. In this difficult case, c ounsel for Barrientos’s forceful advocacy to ensure that the trial court

rem ained neutral in its wording on CALCRIM No. 540A shows

, far from abandoning his client, he was strategically picking his
battles. As the examples identified by the Attorney General show, counsel for Barrientos tactically chose when to fight. T he totality of the record does not support Barrientos’s position that
she was abandoned

. As such, the presumption of prejudice under
Cronic does not apply. Instead, Barrientos must overcome
Strickland ’s burden on ineffective assistance of counsel

. Barrient os ident ifies various alleged failures by her counsel
as bases of h er claim of ineffective assistance of counsel. She must show both (1) deficient performance, and (2) prejudice. ( Strickland, supra, 466 U.S. at p. 687.)
As noted earlier in this section of the opinion, Barrientos
faults her counsel on various grounds including: (1) not filing any pretrial motions nor making any oral motions in limine prior to or during the course of the trial, (2) not mak ing an opening statement before resting , (3) not cross

- e xamin ing 13 of the 16 prosecution witnesses at trial , (4) rest ing without presenting any
affirmative witnesses, evidence or defense, (5) n ot request ing any jury instructions beyond those proposed by the trial court and not object ing to the admission of any of the prosecution exhibits , and (6) waiving closing argument

. Other than faulting her counsel for not investigating a mental defense, Barrientos does not provide much analysis on
other alternative action s that counsel should have taken. What pretri al motion or motion in limine should counsel have made? What jury instruction should counsel have requested? What13

exhibit by the prosecutor should counsel have objected to? Barrientos does not answer any of these questions. The
decisional law is clear that “[c] ounsel is not ineffective for failing
to make frivolous or futile motions. [Citation.] ” ( People v. Thompson (2010) 49 Cal.4th 79, 122.) Additionally, a f ailure to make a futile objection is not ineffective assistance. ( People v.
Diaz (1992) 3 Cal.4th 495, 562.) Concerning cross

- examination, it is fair to say the most damaging pieces of evidence against Barrientos as well as Inzunza, were n ot live witnesses, but rather, physical evidence

– the surveillance video from A&D Liquor Mart and the dem and note including the lifted latent prints. Our review of the record
reveals the actua l presentation of the evidence took a mere two and a half day s packed with 16 witnesses

. Except for Aguirre who was with Barrientos and Inzunza at A&D Liquor Mart when the incident occurred, and Garcia who testified about Barrientos and Inzunza “hanging out” at his home prior to the incident, all of
the other witness es ’ testimony w ere very short in duration. Indeed, counsel for Inzunza also decided not to cross

- examine eight of the 16 witnesses called by the prosecution, and, where he
decided to cross

- examine, it was also very short. “As to whether certain witnesses should have been more rigorously

cross

- examined, such matters are normally left to counsel ’ s discretion and rarely implicate inadequacy of representation. [Citations.] Defendant identifies no exculpatory or impeachment evidence that counsel could have revealed by further questioning of prosecution witnesses and that would have produced a more
favorable res ult at trial. ” ( People v. Cox (1991) 53 Cal.3d 618,
662 , fn. omitted

, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, and superseded by statute on14

other grounds as stated in Jones v. Superior Court (1994)

26 Cal.App.4t h 1202, 1210 .) People v. Carter (2005) 36 Cal.4th 1114 ( Carter ) is
instructive. Carter was a capital homicide prosecution where the appellant claimed his trial counsel was ineffective by f ail ing t o make an opening statement, present any evidence on defen dant’s behalf, and make any substantive closing argument

. ( Id. at

p. 1188.) The appellant in Carter had been accused of five total
murders of which he faced trial on three committed in
Los Angeles. The other two were from Alameda and San Diego
counties and introduced as other crimes evidence under Evidence Code section 1101, subdivision (b) in the trial conducted in
Los Angeles County

. ( Carter, at p. 1146.) In finding no ineffective assistance, the Carter court noted, “[e]ach one of counsel ’ s decisio ns

— to forgo making an opening statement, present a defense, or offer more than a brief
summation

— was tactical. In view of the strong evidence directly linking defendant to the charged murders, as well as the looming prospect of other capital trials in Ala meda and San Diego Counties arising out of the deaths of Tok Kim and Janette Cullins, reasonably competent counsel could have determined to
hear the prosecution ’ s case prior to deciding whether to present a defense, and further could have determined that c ounsel ’ s summation ought to be limited to inviting the jury to consider whether the prosecution actually had met its burden of establishing guilt beyond a reasonable doubt. [Citation.]” ( Carter

, supra , 36 Cal.4th at p. 1189.)
While Barrientos did not f ace additional charges in other
counties as in Carter

, the prosecution’s case against her was equally overwhelming. Counsel for Barrientos knew he had to15

walk a fine line. If he pushed too hard, he could potentially turn the jurors against his client eve n more. What occurred during closing argument is illuminating. The prosecution relied on
alternate theories of first

- degree murder liability under willful, deliberate premeditation, and, the felony

- murder rule. Added to this were instructions on princip als, aiders and abettors, attempted robbery and the instructions on special circumstance. 5 Recognizing the layers of complexities involved in the jury instructions, the prosecutor in his closing argument noted, “ And there are a lot of jury instructions. And the jury instructions, they have parts and subparts and then sub

- subparts. And just when you think you’re at the end of [one] there’s yet another
section. And it’s a forest of different bullet points and numbers. And I know it’s complicated.” Added to this, the prosecutor argued that Barrientos and Inzunza were both principals and

5 The trial court instructed the jury using CALCRIM. Among other instructions, the trial court gave Nos. 4 00 (Aiding and Abetting: General Principles), 401 (Aiding and Abetting: In tended Crimes), 500 (Homicide : General Principles), 520 (First or Second Degree Murder With Malice Aforethought), 521 (First Degree Murder), 540A (Felony Murder: First Degree

– Defendant Allegedly Committed Fatal Act), 540B (Felony Murder: F ir st Degree

– C oparticipant Allegedly Committed Fatal Act), 5 48 (Murder: Alternat iv e Theories), 640 (Deliberation s and Completion of Verdict Forms: For Use When Defendant Is Charged With First Degree Murder and Jury is Given Not Guilty Forms for Each Level of Homicide )

, 700 (Special Circumstances: Introduction), 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990

– Felony Murder)

, 730 (Special Circumstances: Murder in Commission of Felony), and 1600 (Robbery).16

aiders/abettors to each other in committing the attempted robbery

. There existed a possibility for jury confusion. At the end of the prosecutor’s initial closing argumen t, the
trial court asked:

“ The Court:

. . . The People have now finished their closing argument. I know that the [two] of you had been deciding whether or not you wanted to give a closing argument in this

case. Have you decided that yet? “[ Counsel for I nzunza: ] Yes.

“ The Court: And what is that decision? “[ Counsel for Inzunza: ] We’re going to waive.

“ The Court: Okay. And I just want to be clear. This is for strategi c purposes as to both of you ; is that correct? “[ Counsel for Barrientos: ] That is c orrect. “[ Counsel for Inzunza: ] Yes. ”
Given the multiplicity of instructions combined with the strength of the prosecution’s evidence against Barrientos, a reasonably competent attorney could have determined a probability existed for jury confusion and that making a closing argument would only provide the prosecutor with an additional opportunity to clarify the m

. Not making a closing argument was
tactical.
For the above reasons , Barrientos has failed to establish that her counsel’s alleged failures we re deficient under prevailing professional norms and that they resulted in prejudice to her

case

. II. Inzunza’s Eighth Amendment Clai m Inzunza contends her sentence to life without the possibility of parole violates the Eighth Amendment’s proscription a gainst cruel and unusual punishment because post

-17

SB 1437, proof of culpability as a non

- killer aider and abettor for a felony murder based special circumstance under section 190.2, subdivision (a)(17) requires nothing more than proving first degree felony murder under section 189, subdivision (e)(3). Therefore, as applied, California’s statutory scheme fails to provide a meaningful basis for distinguishing between those persons deserving special circumstance punishment from those
who do not. As such, Inzu nza asserts, she is entitled to have her sentence modified from life without the possibility of parole down to a term of 25 years to life. We disagree. Analysis
Inzunza’ s contention centers on the passage of SB 1437
which amended section 189

. 6 Under sec tion 189, subdivision (e), SB 1437 narrowed the liability for first degree felony murder to: 1) the actual killer, 2) the aider and abettor who intended to kill, and 3) the aider and abettor who was a major participant and
acted with reckless indifference to human life. (§ 189, subd. (e)(1)

– (3).)
Inzunza contends, “California’s felony

- murder based special circumstance of attempted robbery is unconstitutionally applied when, as here, the state’s theory for the predicate offense

– first degree felony murde r based on aiding and abetting principles

– require s proof of elements identical to those necessary to establish that special circumstance pursuant to

. . . section 190. 2
,

6 SB 1437 also amended section 1 88, eliminating murder liability under the natural and probable consequences doctrine and added section 1170.95 creating a retroactive petition procedure. On the elimination of the natural and probable consequences doctrine, see People v. Gentile (2020) 1 0 Cal.5th 830, 839 ( Gentile ).18

subdivision s (a)(17) and (d). This statutory scheme provides no meaningful basis fo r distinguishing between first degree felony

murderers punishable by 25 years

- to

- life in prison from those who commit this special circumstance but who are punishable by
either or [ sic ] life imprisonment without possibility of parole or
death.” 7 Inzunza r elies on Lowenfield v. Phelps (1988) 484 U.S.

231 and claims California’s statutory scheme is distinguishable
from those where the h igh c ourt has permitted the use of the same facts to determine death eligibility and as a penalty factor
for consideration i n capital cases. The Attorney General counters that Inzunza lacks standing to challenge the statutory scheme because she was not sentenced
to death. Additionally, t he Attorney General argues that section 1170.95 is the exclusive remedy to seek relief b ased on the changes that SB 1437 made to the law of murder. “[S]tanding in federal courts is limited by article III of the
United States Constitution. ” ( Reycraft v. Lee (2009) 177 Cal.App.4th 1211, 1217.) “In assessing standing, California

courts are not bound by the ‘case or controversy’ requirement of
article III of the United States Constitution

. . . . ‘ California
decisions

. . . generally require a plaintiff to have a personal

7 Punishment for first degree murder is prescribed under section 190, subdivision (a) which states, “Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life with out the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. ” ( § 190, subd. (a).)19

interest in the litigation ’ s outcome. ’ [Citation.]” ( Bilafer v.
Bi lafer (2008) 161 Cal.App.4th 363, 370.) The federal cases cited by the Attorney General do not
control the pathway to California’s appellate courts. 8 In any event, we do not read In zunza’s contention as challenging California’s capital punishment scheme generally. I nstead, she uses the rubric of the capital punishment jurisprudence to argue under the current/relevant statutory laws on murder and special circumstances, as applied, the imposition of life without the possibility of parole is not properly n arrowed from the category of individuals convicted of first degree felony murder as non

- killer
aiders and abettors. Standing does not preclude her from making this challenge.
In Gentile , supra, 10 Cal.5th 830, the California Supreme
Court held that secti on 1170.95 is the exclusive remedy for
retroactive relief on non

- final convictions obtained before the
law’s effective date

. ( Gentile, at pp. 851

- 852.) SB 1437 took effect on January 1, 2019. 9 Section 1170.95 established a retroactive procedure which a llows 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

8 The Attorney General c ites Allen v. Wright (1984) 468 U.S. 737 and Houston v. Roe ( 9th Cir. 1999) 177 F.3d 901.

9 The California Legislature passed SB 1437 in 2018, and the bill was signed by the Governor on September 30, 2018. As a bill enacted at a regular session, the bill became effective on January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c)(1).)20

c ounts

. . . . ” (§ 1170.95 , subd. (a).) Individuals seeking relief must meet three conditions: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine[,] [¶] (2)
T he petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degre e or second degree murder[, and] [¶] (3) T he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” ( Id ., subd. (a)(1)

- (3).) Inzunza is not seeking relief provided un der section
1170.95: she is not asking to have her murder conviction vacated
and to be sentence d on the remaining count. She is not claiming
that her murder conviction is invalid based on the change to
section 189 amended b y SB 1437. Section 1170.95 is n ot a bar to raising this contention.
A

. The “Narrowing” Pr ocess in Capital Punishment Jurisprudence The United States Supreme Court explained that , “[t]o
avoid

. . . constitutional flaw, [a state’s law] must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” ( Zant v. Stephens (1983) 462 U.S. 862, 877 .) “The United States Supreme Court ’ s capital punishment j urisprudence rests on the principle that ‘ “ ‘ the infliction of a sentence of death under legal systems that permit this unique penalty to be

. . . wantonly and

. . . freakishly imposed ’ ” ’ violates21

the Eighth and Fourteenth Amendments to the federal
Cons titution. [Citations.] [¶] The high court has drawn a distinction between two aspects of capital sentencing: ‘ narrowing ’
and ‘ selection. ’ ‘ Narrowing ’ pertains to a state's ‘ legislative
definition ’ of the circumstances that place a defendant within the class of persons eligible for the death penalty. [Citations.] To comport with the requirements of the Eighth Amendment, the legislative definition of a state ’ s capital punishment scheme that serves the requisite ‘ narrowing ’ function must ‘ circumscribe th e class of persons eligible for the death penalty. ’ [Citation.]” ( People v. Bacigalupo (1993) 6 Cal.4th 457, 465.) Our research has not turned up any non

- capital punishment cases

– specifically, those involving life without the possibility of parole sen tences

– utilizing the rubric of the capital punishment jurisprudence to assess whether a sentence violates
the Eighth Amendment’s proscription against a cruel and unusual punishment

. For non

- capital cases

, the United States Supreme Court has set out a th ree

- part test to determine

“ whether a sentence is so disproportionate that it violates the Eighth Amendment: ‘ (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions. ’ [Citation.]” ( Ewing v. California (2003) 538 U.S. 11, 22 ( Ewing ) .) In California, w hen defendants challenge their non

- capital

sentence on the ground it violates the Eight Amendment, the
three

- part test described in Ewing is routinely used. People v.
Johnson (2010) 183 Cal.App.4th 253

, is a fair example. In
Johnson

, the non

- killer aider and abettor was charged with attempted robbery

, murder under a theory of felony murder, and22

a section 190.2, subdivision (a)(17) special circumstance

. The appellant claimed her life without the possibility of parole sentence was cruel and unusual under the Eighth Amendment
based on her non

- lethal conduct in the underlying felony

. In analyz ing the Eighth Amendment claim, the Johnson court noted, “ [w]e, like the trial court when it determined the sentence and when it later refused to modify the sentence, use a three

pronged approach to determine whether a particular sentence is grossly dispro portionate. First, we review ‘the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.’ [Citation.] Second, we compare the challenged punishment with punishments prescribed for more serious c rimes in our jurisdiction. [Citation.] Third, and finally, we compare the challenged punishment to punishments for the same offense in other jurisdictions. [Citation.] The importance of each of these prongs depends upon the facts of each specific case. [Citation.] Indeed, we may base our decision on the first prong alone. [Citation.]” ( Johnson, at

pp. 296

- 297.) The method of analysis Inzunza asks us to conduct
is not how appellate courts analyze a n Eighth Amendment claim of cruel and unusual punish ment for non

- capital judgments.
B

. Capital Punishment Jurisprudence Does Not Apply
to Inzunza ’s Claim Inzunza was sentenced to life without the possibility of parole. 10 Inzunza, however, asks us to conduct the h igh c ourt’s

10 On August 22, 2019, the trial court sentenced Inzunza to a term of life without the possibility of parole on count 1 for the murder, and a consecutive determinate term of three years on count 2 for the attempted robbery, to run consecutive pursuant to section 669.23

“narrowing” analysis applicable in capital punishment appeals despite her non

- capital judgment. She cites People v. Banks (2015) 61 Cal.4th 788 ( Banks ), People v. Estrada (1995) 11 Cal.4th 568 ( Estrada ), and People v. Garcia (1984) 36 Cal.3d 539 ( Garcia ), and argues even though she was not sentenced to death, “[t]he proper construction of these statutes in this non

- capital case must be consistent with its construction in a capital case.” As will be explained below, these cases do not support her position.
In Tison v. Arizona (1987) 4 81 U.S. 137 ( Tison ), the h igh

c ourt held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” 11 ( Id. at p. 158.) In response to Tison , when Prop osition 115, called the “Crime Victims Justice Reform Act,” was passed by the electorate in 1990, it added section 190.2, subdivision (d). 12 When the

11 In Enmund v. Florida (1982) 458 U.S. 782, the h igh c ourt held, “Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the State treated them alike and attributed to Enmund the culpability of those who killed the [victims]. This was impermissible under the Eighth Amendment.” ( Id . at p. 798.)

12 Section 190.2, subdivision (d) states, “N otwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of p arole if a special24

prosecution files a section 190.2, subdivision (a)(17) special circumstance allegation against a non

- kille r aider and abettor
under the felony

- murder rule, they must prove that the accomplice was a major participant who acted with reckless indifference to human life beyond a reasonable doubt before capital punishment, or, life without the possibility of parole may be imposed. ( § 190.2, subd. (d).)
In Banks , supra, 61 Cal.4th 788, our Supreme Court provided criminal law practitioners and lower courts with specific guidance on the requirements of “major participation” and
“reckless indifference to human life” for a non

- killer aider and abettor when a felony murder special circumstance is alleged pursuant to section 190.2, subdivision (a)(17). The Banks court explained, “the standards we articulate, although developed in death penalty cases, apply equally to ca ses like this one involving statutory eligibility under section 190.2(d) for life imprisonment without parole.” ( Banks, at p. 804.) Banks , however, was not concerned with the “narrowing” process in capital punishment jurisprudence as in a death penalty a ppeal , but instead, on the constitutional requirements discussed in Tison

– facts that support “major participation” and “reckless indifference to human
life

. ” ( Id. at pp. 804

- 811.) The Banks court’s reference to meeting
constitutional standard s relates to Tison ’s analysis on these legal requirements for non

- killer aiders and abettors when a felony murder special circumstance is alleged under section 190.2, subdivision (a)(17) applied under section 190.2, subdivision (d)

.

circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4. ”25 Estrada and Garcia are also equ ally unavailing. The main
contention in Estrada centered on whether the trial court had a sua sponte duty to define “reckless indifference to human life.” ( Estrada, supra , 11 Cal.4th at pp. 574

- 575.) D iscussing Tison as the source for the language used in section 190.2, subdivision (d),
Estrada explained , “ Tison was concerned with whether imposition of the death penalty on an accomplice to a felony
murder who neither killed nor intended to kill the victim would violate the Eighth or Fourteenth Amendments

. . . . Tison is the source of the language of section 190.2(d), and the constitutional standards set forth in that opinion are therefore applicable to all allegations of a felony

- murder special circumstance, regardless of whether the People seek and exac t the death penalty or a sentence of life without parole. ” ( Estrada

, at pp. 575

- 576.) 13 As
in Banks

, Estrada did not analyze the “narrowing” process within the high court’s capital punishment jurisprudence.
Garcia is a 1984 case that predates our curren t law as well

as Tison (published in 1987) on the requirements for non

- killer aiders and abettors charged with a felony murder special circumstance under section 190.2, subdivision (a)(17). Until Proposition 115 changed the requirements to the Tison stand ard, prosecutors were required to prove that the non

- killer aiders and abettors for felony murder special circumstance possessed the
intent to kill

. (See Carlos v. Superior Court (1983) 35 Cal.3d 131,

145 [“We conclude that the history of the initiative, as well as its wording, supports a construction limiting the felony murder

13 Estrada ultimately held, trial courts did not have a sua sponte duty to define “reckless indifference to human life,” becau se “[t] he phrase

. . . does not have a technical meaning peculiar to the law

. . . . ” ( Estrada, supra, 11 Cal.4th at p. 578.)26

special circumstances to persons who intend to kill or aid in a killing.”], superseded by statute recognized in Banks, supra

, 61 Cal.4th at p. 798.) In Garcia , the trial court had omitted to instruct the jury on intent to kill for the special circumstance allegation. Garcia noted, “[t]he United States Supreme Court decisions make it clear that when intent is an element of a crime, an instruction directing the jury to find or conclu sively presume intent denies due process, regardless of the weight of the
evidence. ” ( Garcia , supra, 36 Cal.3d at p. 551.) Again, as in
Banks and Estrada

, Garcia was not concerned with the “narrowing” process within the high court’s capital punishment ju risprudence. Inzunza is mistaken about the constitutional consistency
discussed in Banks and Estrada

. The consistency discussed is not with the “narrowing” process within the high court’s capital punishment jurisprudence. Rather, the required consisten cy is
on the Tison standards of “major participation” and “reckless
indifference to human life.” This is so because section 190.2, subdivision (d) requires proof of “major participation ” and “reckless indifference to human life” when a special circumstanc e is alleged pursuant to section 190.2, subdivision (a)(17) against a

non

- killer aider and abettor whether the prosecution seeks the punishment of death or life without the possibility of parole. The
same constitutional standards under Tison applies. As such, we
decline Inzunza’s invitation to conduct the “narrowing” analysis under the capital punishment jurisprudence to resolve her
contention

. Instead, we again look to B anks and Estrada for answers.
Estrada explained that “ Tison was concerned with whet her imposition of the death penalty on an accomplice to a felony27

murder who neither killed nor intended to kill the victim would violate the Eighth or Fourteenth Amendments. The decision itself does not stand for the proposition that imposition of a penal ty less severe than death, such as life imprisonment without parole, would offend constitutional principles in the absence of proof of ‘reckless indifference to human life.’ [Citation.]” ( Estrada , supra, 11 Cal.4th at p. 575
, italics added .) In Banks

, t he California Supreme Court noted, “[a]s a purely constitutional matter, nothing would foreclose California from imposing life imprisonment without parole sentences on felony murderers with [Appellant’s] degree of culpability. [Citations.]” ( Banks, supra

, 61 Cal.4th at p. 804.) Stated differently, for non

- killer aiders and abettors under
the felony

- murder rule, California’s statutory requirement under section 190.2, subdivision (d) to prove “major participant” and
“reckless indifference to human life” w hen imposing the punishment of life without the possibility of parole is not constitutionally compelled under Tison

. Undoubtedly, SB 1437

, by amending section 189, has raised the requirement for first degree felony murder on non

- killer aiders and abettors to the
Tison standard

– a standard under which a state could potentially exact the punishment of death

. (See § 189, subd. (e)(3).) Currently under California law, the standard of murder liability for non

- killer aiders and abettors under the change made by SB 1437 to section 189 , and, the special circumstance requirements of section 190.2, subdivision (d), both meet the
Tison standard for imposing capital punishment. While we express no views as to whether SB 1437 impacts the “narrowing” analysis under c apital punishment jurisprudence if a defendant is sentenced to death, here, no such judgment applies. Instead,28

Inzunza was sentenced to life without the possibility of parole. If capital punishment could be exacted without offending the Eighth Amendment, a lesser sentence is certainly constitutional. Inzunza’s sentence of life without the possibility of parole does not offend the Eighth Amendment.
III. Section 654 Claim by Barrientos and Inzunza on
Count 2
Barrientos and Inzunza contend the trial court’ s imposition of a consecutive term on the attempted robbery count (Count 2) in addition to the sentence imposed on the murder count (Count 1) violated section 654’s proscription against multiple punishments. Barrientos further claims the sentence imposed on c ount 2 violated the Double Jeopardy Clause of the Fifth Amendment.
A. Legal Principles Section 654, subdivision (a) states, “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under a ny other. ”
Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor. ( People v. Beamon (1973) 8 Cal.3d 625,

63 7.) “It is defendant ’ s intent and objective, not the temporal proximity of his offenses, which determine whether the
transaction is indivisible. [Citations.] We have traditionally observed that if all of the offenses were merely incidental to, or

were t he means of accomplishing or facilitating one objective,29

defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [¶] If, on the other hand, defendant harbored ‘ multiple criminal objectives, ’
which wer e independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘ even though the violations shared common acts or were parts of an otherwise indivisible course of
conduct. ’ [Citation.] ” ( People v. Harrison (1989) 48 Cal.3d 321, 335.)
“The defendant ’ s intent and objective are factual questions for the trial court, and we will uphold its ruling on these matters if it is supported by substantial evidence. [Citation.]” ( Peop le v. Perry (2007) 154 Cal.App.4th 1521, 1525.) “Where a defendant is prosecuted solely on a theory of first degree felony murder, section 654 precludes punishment for both murder and the underlying felony. [Citation.] However, if the prosecution prese nts alternative theories

— such as premeditation and felony murder

— and there is evidence supporting a finding that the murder was premeditated, then the trial court may properly impose a sentence for both the murder and the felony. [Citation.]” ( People v. Carter (2019) 34 Cal.App.5th 831, 841.)
B. Analysis We start by analyzing the prosecutor’s theory of liability for the murder charge. In closing argument, the prosecutor expressly relied on both the theor y of premeditation and the felony

- murder rule in a sking the jury to convict both Barrientos
and Inzunza

. The prosecutor specifically argued the existence of express malice and premeditation each time Barrientos pulled the trigger but the gun jammed until finally, she shot the victim
in the face killing h im. The prosecutor also argued for express30

malice and premeditation against Inzunza based on the demand note which stated, “Real simple. Give us the fucking money from the register or we will fucking kill you.” This is a case where the felony

- murder rul e was not the prosecution’s sole theory of liability. On the contrary, based on whether substantial evidence supports the trial court’s decision, this is a case noted in People v.
Carter

, supra , 34 Cal.App.5th 831, where imposition of sentence
without sta ying it, may be appropriate. We next assess whether the trial court’s findings are supported by substantial evidence. Both counsel for Barrientos
and Inzunza asked the trial court to run the sentence on Count 2 (attempted robbery) concurrent with Count 1 (first degree murder with a special circumstance). The trial court stated: “Okay. Okay. As to

– – I have given a lot of thought as to the sentence and running Count 2 concurrent to Count 1. I’m not sure if I even can, but if I could I’m going to choo se not to run it

concurrent. And I am going to run it consecutive, especially as to Ms. Barrientos. What really struck me in this case was watching the video and the fact that that gun didn’t fire multiple times. There were so many opportunities for eit her [one] of them at that point to stop and to deflect and to say, no. We need to just leave. And Ms. Barrientos kept trying. Nothing was going to stop her from shooting that gun. [¶] To me it almost seemed like it was separate from the even act of th e robbery. I’ve never seen a gun

–

– I don’t think it jammed as much as she just couldn’t get it to fire and to keep going on and on. It just surprised me how easily this could have stopped at that moment. [¶] I know rash decisions happen and people ma ke decisions that they regret for
the rest of their lives. And sometimes they get a chance to say, if I could have done it differently. And she had that chance. For31

whatever reason she had that chance to s t op at that moment, and she chose to go on. [¶ ] And Ms. Inzunza was right there and could have at any moment stopped her when she saw what was going on, when that gun wouldn’t fire.” In exercising its discretion to impose a consecutive sentence for the attempted robbery charge, the trial court ’s pr imary
attention was on Barrientos. While Barrientos contends the
incident was an indivisible course of conduct that took a mere 30 seconds from start to finish and that the only apparent objective was to take money from the victim , t he trial court’s comme nts belie her position. By her actions depicted in the video, t he trial court implicitly found that Barrientos exhibited a pre

- determined
intent to kill Kalam which was separate from the robbery. In support of its view, the trial court explained that eac h time the gun jammed, Barrientos had an opportunity to reflect and stop
from further violence but instead chose to continue and ultimately shot Kalam to death. The record shows Barrientos
shot Kalam in the face. The trial court’s implicit finding that
B arrientos entertained a separate objective and intent

– to kill
Kalam

– is supported by substantial evidence. Citing People v. Wader (1993) 5 Cal.4th 610 ( Wader ),
Barrientos also contends the sentence on c ount 2 violates the
D ouble J eopardy C lause of the Fifth Amendment of the federal
Constitution. The United States Supreme Court explained that
the D ouble J eopardy C lause of the Fifth Amendment “protects against a second prosecution for the same offense after acquittal. It protects against a second prose cution for the same offense after
conviction. And it protects against multiple punishments for the
same offense.” ( North Carolina v. Pearce (1969) 395 U.S. 711,

717 , fns. omitted .)32 Sentencing on c ount 2 for the attempted robbery falls under
the categor y of protection against multiple punishments for the
same offense. Wader cited Jones v. Thomas (1989) 491 U.S. 376 ( Jones ), which dealt with a felony murder conviction where the

tr i al court also imposed a consecutive term for the underlying felony. ( Id. at p. 381.) On this, the high court explained, “ [t] he answer turns on the interest that the Double Jeopardy Clause seeks to protect. Our cases establish that in the multiple punishments context, that interest is ‘ limited to ensuring that the total punish ment did not exceed that authorized by the legislature. ’ [Citations.] The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the s ubstantive power to define crimes and prescribe punishments. [Citation.]” ( Ibid .) Our Supreme Court resolved this question in People v. Holt (1997) 15 Cal.4th 619 ( Holt ). Holt first noted that the double jeopardy issue came up in Jones because the “ Mi ssouri
L egislature did not intend to allow conviction and punishment for
both felony murder and the underlying felony

. [Citations.]” ( Jones, supra, 491 U.S. at p. 381.) In contrast, California’s “1978 death penalty law expressly provides that a felony u nderlying a felony

- murder special circumstance ‘be charged and proved pursuant to the general law applying to the trial and conviction
of the crime.’ [Citation.] Since section 190.3 expressly permits
the sentencer to consider both the circumstances of th e crime and a special circumstance based on conviction of a felony which underlies the first degree felony

- murder conviction, there is no federal double jeopardy violation. [Citations.]” ( Holt, supra, at33

pp. 692

- 693.) 14 Since California’s Legislature doe s not forbid sentencing in this context, the D ouble J eopardy C lause of the Fifth Amendment is not a bar to sentencing on the attempted robbery conviction.
For Inzunza, the trial court’s decision to impose a
consecutive sentence rested on its view that she could have stopped Barrientos from shooting Kalam but did not do so. This finding by the trial court does not resonate with clarity. Failure to act is susceptible to various reasons such as fear, lack of care, inattention, as well as , perhaps, a desire to see the thing done by the other actor, here Barrientos

. “ ‘Substantial evidence’ means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the
ultimate fact it addresses has been justly determined.” ( People v.
Conner (1983) 34 Cal.3d 141, 149.) Inzunza’s failure to stop Barrientos from shooting Kalam does not meet this definition.
Her inaction is not substantial evidence that she entertained a separate obj ective from the robbery

– a n intent to kill.
IV. Apprendi Challenge to the Consecutive Term on
Count 2
Barrientos and Inzunza contend that the factual findings made by the trial court to impose consecutive terms violated their Sixth Amendment right to a j ury trial as well as their Fourteenth Amendment right to due process. We disagree.

14 Holt cited section 190. 4 , subdivision (a) which states in relevant part, “Whenever a special circumstance requires proof o f the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.” (§ 190. 4 , subd. (a).)34

Analysis
In Apprendi , the United State Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the pre scribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” (

Apprendi, supra , 530 U.S. at p. 490.) Four years later, in Blakely v. Washington (2004) 542 U.S. 296, the high court explained that “the relevant ‘statutory ma ximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” ( Id. at pp. 303

- 304.) Under Cunningham v. California (2007) 549 U.S. 270, the high court held Cali fornia ’s determinate sentencing scheme ( section 1170 et seq. ) which at the time utilized a “presumptive” middle term, violated Apprendi and its progeny when a trial court made factual findings of aggravating circumstances

– other than a fact of a prior
convictio n

– to impose the upper term. ( Cunningham

, at p. 293.)
These cases , however, did not address whether the imposition of consecutive sentences on counts found by the jury or admitted by the defendant violated the Sixth Amendment right to a jury trial. Th is question was answered in Oregon v. Ice (2009) 555 U.S. 160 which explained, “[t] he historical record demonstrates that the jury played no role in the decision to impose sentences consecutively or concurrently. Rather, the choice rested exclusively with the judge.” ( Id. at p. 168 .) The high court further explained that “[i]n light of this history, legislative reforms regarding the imposition of multiple sentences do not implicate the core concerns that prompted our decision in Apprendi

. There is no en croachment here by the judge upon facts historically found by the jury, nor any threat to the jury ’ s domain35

as a bulwark at trial between the State and the accused. Instead,
the defendant

— who historically may have faced consecutive sentences by default

— ha s been granted by some modern legislatures statutory protections meant to temper the harshness of the historical practice. ” ( Id. at p. 169. ) Additionally, the

“ [s] tates ’ interest in the development of their penal systems, and
their historic dominion in t his area, also counsel against the
extension of Apprendi that Ice requests. Beyond question, the authority of States over the administration of their criminal justice systems lies at the core of their sovereign status. ” ( Id. at

p. 170.) As such, the hig h court held that judicial fact finding to impose consecutive sentences , as under the Oregon statute, does
not violate Apprendi

. ( Id . at p. 172.) In California, the rule
under Oregon v. Ice was recognized in People v. Scott , s u pra, 61 Cal.4th at p. 405 ( [“ the high court has held that ‘the Sixth
Amendment ’ s restriction on judge

- found facts’ is ‘inapplicable’ when a trial judge makes factual findings necessary to the imposition of consecutive terms.”].)
On this issue , Inzunza’s claim has been rendered moot
since we found merit in her section 654 contention that no substantial evidence support ed the trial court’s de cision to impose consecutive terms. As for Barrientos, we are bound by Auto Equity Sales , Inc. v. Superior Court (1962) 57 Cal.2d 450 to follow the decisions of courts exercising superior jurisdiction , here the California Supreme Court as well as the United States Supreme Court

. ( Id

. at p. 455 [“Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdictio n. It is not their function to attempt to overrule decisions of a higher court. ”].)36

V. Second Strike Sentence for Barrientos
Barrientos c ontends , while the prosecution filed a prior conviction allegation pursuant to the California’s Three Strikes
law an d alleged the same conviction as a five

- year prior under section 667, subdivision (a), no jury or a court trial was conducted
to determine its truth. 15 The Attorney General concedes. As well, our review of the record does not show the prior conviction
all eged as a strike prior as well as a five

- year prior was ever
found true. As such, the second

- strike sentence and the imposition of the five

- year prior on c ount 2 must be vacated and
remanded for trial and resentencing. 16

15 The Information alleged Barrientos had suffered a prior

co nviction that constituted a “strike prior” under section 667, subdivision (d) and section 1170.12, subdivision (b) for a robbery, in violation of section 211 in case No. BA 428427, suffered on April 8, 2015 in Los Angeles County Superior Court. The same

pr ior conviction was also alleged as a five

- year prior under section 667, subdivision (a).

16 The trial court used the strike prior only on c ount 2 for the attempted robbery when it doubled the middle term

. The trial court also only imposed the five

- year pr ior on c ount 2.37 DISPOSITION
Sentence on c ount 2 fo r Barrientos is vacated. The matter is remanded for a trial on the prior conviction allegations and resentencing. Sentence on count 2 for Inzunza is remanded to vacate the imposition of a consecutive term and to stay the sentence pursuant to section 654. In all other respects, the judgment for Barrientos and Inzunza are affirmed.

OHTA, J. *

We concur:

STRATTON, Acting P. J.

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.