Filed 3/17/16 P. v. Legaspi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY JOHN LEGASPI et al.,

Defendants and Appellants.

 D068710

 (Super. Ct. No. FSB1200952)

APPEALS from judgments of the Superior Court of San Bernardino County, 

Annemarie G. Pace, Judge. Affirmed in part, reversed in part and remanded with 

directions.

Michael B. McPartland, under appointment by the Court of Appeal, for 

Defendant and Appellant, Jose Ramon Lara.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and 

Appellant, John David Salazar.
2

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and 

Appellant, Anthony John Legaspi.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis 

and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendants, Anthony John Legaspi, John David Salazar, and Jose Ramon Lara, 

belonged to the same Hispanic criminal street gang. After an incident earlier in the day 

in which Legaspi felt humiliated, he shot at a group of five African-American males, 

killing two of them and wounding two others. Salazar drove Legaspi to and from the 

scene, and Lara provided Legaspi with the murder weapon and assisted in disposing of it.

All defendants were charged with two counts of first degree murder (Pen. Code, 

§ 187, subd. (a);1 counts 1 and 2), three counts of attempted first degree murder (§§ 664, 

187, subd. (a); counts 3, 4 and 5), and street terrorism (§ 186.22, subd. (a); count 7); and 

Lara was also charged with being an accessory after the fact (§ 32; count 6). Legaspi was 

prosecuted as the lone shooter, and Salazar and Lara were prosecuted as direct aiders and 

abettors of the shootings, and as aiders and abettors of the target offense of "assault, 

challenging someone to fight, fighting, or offensive words," under the natural and 

probable consequences doctrine.

The jury convicted defendants on all counts. The jury found true allegations that

in the commission of all the offenses a principal personally used a firearm; personally and 

 

1 Undesignated statutory references are to the Penal Code.
3

intentionally discharged a firearm; and personally and intentionally discharged a firearm, 

proximately causing great bodily injury or death (§ 12022.53, subds. (b), (c) and (d)). On 

counts 1 through 6, the jury found true allegations that defendants committed the offenses 

for the benefit of, at the direction of, or in association with a criminal street gang within 

the meaning of section 186.22, subdivision (b)(1)(C). 

The court sentenced Legaspi to an indeterminate prison term of 220 years to life. 

Salazar and Lara each admitted to one prior conviction within the meaning of 

section 667.5, subdivision (b), and the court sentenced them to indeterminate prison 

terms of 197 years to life.

On appeal, Legaspi contends he is entitled to a new sentencing hearing. He asserts 

that since he was a juvenile when he committed the offenses, his de facto sentence of life 

without parole is cruel and unusual punishment under the Eighth Amendment to the 

United States Constitution. 

Lara contends his convictions for first degree murder must be reversed because 

after trial, the California Supreme Court held in People v. Chiu (2014) 59 Cal.4th 155, 

158-159 (Chiu), that as a matter of law there is no aider and abettor culpability for first 

degree premeditated murder under the natural and probable consequences doctrine. He 

also challenges two aspects of his sentence. Salazar joins in Lara's arguments. Legaspi 

joins in one of the sentencing issues.

We agree that Lara's and Salazar's convictions for first degree premeditated 

murder must be reversed. On remand, we direct the court to give the People the option of 

accepting a reduction of the murder convictions to second degree murder or retrying them 
4

on the greater offense. (Chiu, supra, 49 Cal.4th at p. 168.) Further, we agree that the 

court erred by sentencing Lara and Salazar to sentences of seven years to life on their 

attempted murder convictions, and their abstracts of judgments must be amended to show 

sentences of life with the possibility of parole. In all other respects we affirm the 

judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants were active members of Varrio Redlands, an Hispanic criminal street 

gang in the City of Redlands area. Adrian Powers was associated with Varrio Redlands

members.2

On January 5, 2011, Powers attended a barbecue with Legaspi and Salazar at the 

home of another Varrio Redlands member. Powers overheard Legaspi say he had been in 

an altercation with a group of 10 to 15 African-American males earlier that day when he 

was on a drug delivery. Legaspi said the males were "saying bad stuff," and "they 

attacked him." One of the males reached into a backpack and said, "You don't want any 

of this." Legaspi ran away because he believed the male had a gun.

A barbecue attendee taunted Legaspi about the incident. He said: "Why did you 

allow that to happen? Back in my day, I would not allow that. If it was me, I would have 

went there and talked to them and already handled the issue." This embarrassed Legaspi. 

He "kept getting madder and red in the face."

 

2 Powers entered into an agreement to plead guilty to voluntary manslaughter and a 

gang enhancement, with a potential prison term of between three and 21 years, in 

exchange for his testimony. He testified while under protective custody because of 

defendants' threats against him.
5

Legaspi, Salazar, and Powers left the barbecue and walked to Lara's nearby home. 

Legaspi and Salazar were saying "let's go get it, let's go get it." Lara was a "mid-level 

manager of Varrio Redlands," and "some of the less influential members check in with 

him, keep him posted." Lara "would make decisions within the gang and . . . would send 

out lower[]level gang members to do Varrio Redlands business." 

After a few minutes, Legaspi and Salazar left Lara's home. While they were gone, 

Lara laughed about the "situation" and said it was Legaspi's "own fault he got 

jumped . . . walking over there by himself." Legaspi and Salazar returned, and Lara told 

Powers to step outside.

Powers went outside and "smoked some weed." He peered into the house through 

an open door and saw Lara holding a black object wrapped in a blue bandanna. The 

object had a handle with a red dot on it. A few months earlier Lara showed Powers a

nine-millimeter semiautomatic handgun that was wrapped in a blue bandanna. The gun's 

handle had a red dot on it. Defendants noticed Powers looking in and closed the door.

When Powers was allowed back inside, part of the blue bandanna was sticking out 

of Legaspi's jacket pocket. Salazar said, "[L]et's go, we are going to see where [Legaspi] 

got jumped." Legaspi, Salazar, and Powers left in Salazar's car and drove around. Near 

the playground area of an apartment complex Legaspi noticed a group of AfricanAmerican males, one of whom was carrying a backpack. Legaspi said, "That's them, 

[t]hat's the guys who jumped me." Salazar stopped the car and said, "All right, let's get 

them," and, "Go." Salazar waited in the car "[b]ecause he's the only one who knew how 

to drive."
6

Legaspi pulled the hood of his sweatshirt over his head and began running toward 

the African-American males. Powers followed him, lagging behind. Powers saw 

Legaspi turn a corner, and then he heard numerous gunshots. Powers ran back to 

Salazar's car and said, "Let's go," but Salazar refused to leave without Legaspi. Legaspi 

got to the car and they sped away. They eventually returned to Lara's home, where 

Legaspi and Salazar discussed whether they had "fucked up."

Michael Bouldin was parked in the area of the shootings. He saw two Hispanic 

males, one of whom held a gun and cocked it, running after a group of African-American 

males, several of whom he recognized as his son's friends. He heard gunshots and saw 

the Hispanic males run back to a car and flee. He identified Legaspi as the person with 

the gun.3

Jordan Howard, Tequan Thomas, Andrew Jackson, Quinn McCaleb, and Antonio 

Puente were together in the playground area. Puente testified they were confronted by a 

male who was carrying a handgun and "shouted . . . where he was from." The male took 

"two deliberate shots and then he shot randomly." Howard, Thomas, Jackson, and 

McCaleb were all shot, and Jackson and McCaleb were mortally wounded. Puente ran 

away and was not hit. He identified Legaspi as the shooter.

 

3 Bouldin was a reluctant witness. After he witnessed the incident he and his family 

moved from the neighborhood. He cried during his testimony because he feared for his 

and his family's safety.
7

Eight 9-millimeter bullet casings were found at the scene, and it was determined 

they were fired from the same gun. Two bullets collected from one of the victims and his 

clothing were consistent with the casings.

Legaspi admitted to cellmate Davante McConnell that he shot two AfricanAmerican males in the playground of an apartment complex.4 Legaspi told McConnell 

"he went by these bushes to hide and wait for the victims to come out," and before the 

shootings he "yelled out Varrio Redlands gang." He also told McConnell he used a ninemillimeter gun, and after the shootings "[h]e went somewhere in the middle of the desert 

where the big fans were to bury it."

Cell phone records showed that Salazar's phone was near the area of the shootings 

when they occurred. The records also showed multiple calls were made between 

Salazar's and Lara's phones shortly before and after the shootings.

Lara admitted to a detective that he assisted in burying the murder weapon, a black 

semiautomatic handgun, in the desert.5 Lara showed the detective and other officers 

where he thought it was buried, but it was not found. He denied it was his gun or that he 

gave a gun to Legaspi. 

The gang expert, Chad Mayfield, is a police officer with the City of Redlands. In 

his opinion, when a Varrio Redlands member brings a problem to the attention of a 

 

4 McConnell came forward because Howard was a friend. McConnell received no 

consideration for his testimony, and he said he feared for his and his family's safety 

because of "my race" and Legaspi's gang affiliation.

5 This evidence was admitted only in the case against Lara.
8

fellow gang member, a response is required, both for racial reasons and to avoid losing 

respect. Officer Mayfield explained, "If you don't act, then you're going to lose your 

position of authority within the neighborhood." He also testified that the shootings in this 

case would benefit Varrio Redlands because they "would show [African-American 

males] that if they even attempt to threaten or jump a member of Varrio 

Redlands, . . . they would be dealt with." Even if Legaspi "shot the wrong people,"

defendants' status in the gang would improve and they would be "entrusted with other 

such tasks or jobs within the gang."6

DISCUSSION

I

First Degree Premeditated Murder/Chiu Opinion

Lara, joined by Salazar, contends the court prejudicially erred by instructing the 

jury it could find him guilty of first degree premeditated murder under the natural and 

probable consequences doctrine. He asserts the People "cannot establish that [he] was 

convicted of first degree murder under another legally valid theory."

"Both aiders and abettors and direct perpetrators are principals in the commission 

of a crime." (People v. Calhoun (2007) 40 Cal.4th 398, 402; § 31.) "[A]iding and 

abetting is one means under which derivative liability for the commission of a criminal 

offense is imposed. It is not a separate criminal offense." (People v. Francisco (1994) 

 

6 The three victims who survived the attack, Puente, Thomas, and Howard, all 

denied any gang affiliation, gun possession, or involvement in any altercation with 

Legaspi earlier in the day.
9

22 Cal.App.4th 1180, 1190.) "Factors relevant to a determination of whether [a]

defendant was guilty of aiding and abetting: presence at the scene of the crime, 

companionship, and conduct before and after the offense. (People v. Singleton (1987) 

196 Cal.App.3d 488, 492.)

"There are two distinct forms of culpability for aiders and abettors. 'First, an aider 

and abettor with the necessary mental state is guilty of the intended crime. Second, under 

the natural and probable consequences doctrine, an aider and abettor is guilty not only of 

the intended crime, but also "for any other offense that was a 'natural and probable 

consequence' of the crime aided and abetted." ' " (Chiu, supra, 59 Cal.4th at p. 158.)

Chiu, supra, 59 Cal.4th 155, holds that an aider and abettor may be convicted of 

second degree murder, but not first degree premeditated murder, under the natural and 

probable consequences doctrine. (Id., at pp. 158, 166.) "[P]unishment for second degree 

murder is commensurate with a defendant's culpability for aiding and abetting a target 

crime that would naturally, probably, and foreseeably result in a murder under the natural 

and probable consequences doctrine . . . . [W]here 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." (Id. at p. 166.)

The opinion explains: "First degree murder, like second degree murder, is the 

unlawful killing of a human being with malice aforethought, but has the additional 

elements of willfulness, premeditation, and deliberation, which trigger a heightened 

penalty. [Citation.] That mental state is uniquely subjective and personal. It requires 
10

more than a showing of intent to kill; the killer must act deliberately, carefully weighing 

the considerations for and against a choice to kill before he or she completes the acts that 

caused the death." (Chiu, supra, 59 Cal.4th at p. 166.)

An aider and abettor may still be convicted of first degree premeditated murder 

based on direct aiding and abetting principles. (Chiu, supra, 59 Cal.4th at p. 166.) 

"Under those principles, the prosecution must show that the defendant aided or 

encouraged the commission of the murder with knowledge of the unlawful purpose of the

perpetrator and with the intent or purpose of committing, encouraging, or facilitating its 

commission." (Id. at p. 167.)7

"When a trial court instructs a jury on two theories of guilt, one of which was 

legally correct and one legally incorrect, reversal is required unless there is a basis in the 

record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th 

at p. 167, italics added.) A defendant's "first degree murder conviction must be reversed 

unless we conclude beyond a reasonable doubt that the jury based its verdict on the 

legally valid theory that defendant directly aided and abetted the premeditated murder." 

(Ibid.) When reversal is required, the People have the option of accepting a reduction of 

the first degree murder convictions to second degree murder or retrying them on the 

greater offense on a direct aiding and abetting theory. (Chiu, at p. 168.)

 

7 A defendant may be found guilty of attempted premeditated murder as an aider 

and abettor under the natural and probable consequences doctrine. (People v. Favor 

(2012) 54 Cal.4th 868, 872; Chiu, supra, 59 Cal.4th at pp. 162-163.) The "premeditation 

finding—based on the direct perpetrator's mens rea—is determined after the jury decides 

that the nontarget offense of attempted murder was foreseeable." (Chiu, at p. 162.)
11

The court instructed the jury that Lara and Salazar could be found guilty as direct 

aiders and abettors or as aiders and abettors under the natural and probable consequences

doctrine. The People concede instructional error, but they assert reversal is unwarranted 

because the record shows beyond a reasonable doubt that the jury convicted Lara and 

Salazar as direct aiders and abettors of the murders. The People rely on the strength of 

the evidence to support a finding based on a theory of direct aiding and abetting, such as 

Lara's supplying the gun to Legaspi, and Salazar's provision of transportation to and from 

the scene.

The issue, however, is not whether substantial evidence supports the first degree 

murder convictions on a theory of direct aiding and abetting. The issue is whether the 

record shows beyond a reasonable doubt that the jury relied on a valid theory, and the 

record here falls short. The People acknowledge there was also evidence to support a 

conviction under the natural and probable consequences doctrine. Powers testified that 

when he and defendants left Lara's home he did not believe anyone would be shot, and if 

that had been the plan he would not have participated. Powers believed that "at most" the 

plan was to "scare somebody," presumably with the gun. He stated the intent was "[t]o 

fight them, talk crap to them, let them know that they jumped the wrong person."

The People assert we should ignore Powers's testimony because he had stepped 

outside when Lara gave Legaspi the gun, and thus he was unaware of defendants' exact 

plan. In closing, however, the prosecutor argued "Powers is the best source you have for 

what happened in this case." The prosecutor pointed out that "Powers thought they were 

just going looking for some people, or he thought at most that they were going to maybe 
12

fight them, fistfight." The prosecutor argued it was nonsensical for Legaspi and Powers 

to try to fight a larger group, "[b]ut assuming . . . that all Salazar thought was, hey, we're 

just going to scare these guys or we're just going to fistfight, at most, if you believe 

that—and you have gang members in a gang territory, going looking for enemies of the 

gang, and that they're the wrong race, that all they're going to do is fight with them, but 

that it's foreseeable that someone might get killed, then you can be guilty of murder even 

if you only went there to fight or thought you were going to fight."

Under these circumstances, we cannot conclude beyond a reasonable doubt that 

the jury based Lara's and Salazar's first degree murder convictions on a finding of direct 

aiding and abetting. Thus, we reverse the judgments insofar as they pertain to those 

convictions (counts 1 and 2). We remand the matter to the trial court with directions to 

give the People the opportunity to accept reductions of their convictions to second degree 

murder or retry them for first degree premeditated murder on the ground Lara and Salazar

were direct aiders and abettors.

II

Sentencing Issues

A

Juvenile Offender Sentencing

Legaspi contends he is entitled to a new sentencing hearing. He was 17 years old 

when he committed the offenses, and he asserts his 220-year-to-life sentence constitutes 

cruel and unusual punishment in violation of the Eighth Amendment of the United States 
13

Constitution, which provides: "Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted."

"To determine whether a punishment is cruel and unusual," and thus violative of 

the Eighth Amendment, "courts must look beyond historical conceptions to ' "the 

evolving standards of decency that mark the progress of a maturing society." 

[Citation.]' " (Graham v. Florida (2010) 560 U.S. 48, 58 (Graham).) " 'Whether a 

punishment is cruel or unusual is a question of law for the appellate court.' " (People v. 

Em (2009) 171 Cal.App.4th 964, 971.)

A series of relatively recent opinions has established sentencing rules for juvenile 

offenders. In Roper v. Simmons (2005) 543 U.S. 551, 578-579 (Roper), the United States 

Supreme Court held that under the Eighth Amendment juveniles may not be sentenced to 

capital punishment for any crime. Five years later in Graham, supra, 560 U.S. 48, that 

court held the Eighth Amendment prohibits states from sentencing juveniles convicted of 

nonhomicide offenses to life in prison without the possibility of parole. (Id. at p. 75.) 

The court concluded that "when compared to an adult murderer, a juvenile offender who 

did not kill or intend to kill has a twice diminished moral culpability. The age of the 

offender and the nature of the crime each bear on the analysis." (Id. at p. 69.)

In Graham, the court noted "Roper established that because juveniles have 

lessened culpability they are less deserving of the most severe punishments. [Citation.] 

As compared to adults, juveniles have a ' "lack of maturity and an underdeveloped sense 

of responsibility" '; they 'are more vulnerable or susceptible to negative influences and 

outside pressures, including peer pressure'; and their characters are 'not as well formed.' " 
14

(Graham, supra, 560 U.S. at p. 68, quoting Roper, supra, 543 U.S. at pp. 569-570.) The 

court relied on studies showing that "developments in psychology and brain science 

continue to show fundamental differences between juvenile and adult minds. For 

example, parts of the brain involved in behavior control continue to mature through late 

adolescence. [Citations.] Juveniles are more capable of change than are adults, and their 

actions are less likely to be evidence of 'irretrievably depraved character' than are the 

actions of adults." (Graham, at p. 68, quoting Roper, at p. 570.)

In Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] (Miller), the court held 

that in homicide cases, the "Eighth Amendment forbids a sentencing scheme that 

mandates life in prison without possibility of parole for juvenile offenders." (Id.

at p. 2469, italics added.) Miller explains: "Mandatory life without parole for a juvenile 

precludes consideration of his chronological age and its hallmark features—among them, 

immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents 

taking into account the family and home environment that surrounds him—and from 

which he cannot usually extricate himself—no matter how brutal or dysfunctional. It 

neglects the circumstances of the homicide offense, including the extent of his 

participation in the conduct and the way familial and peer pressures may have affected 

him. Indeed, it ignores that he might have been charged and convicted of a lesser offense 

if not for incompetencies associated with youth—for example, his inability to deal with 

police officers or prosecutors (including on a plea agreement) or his incapacity to assist 

his own attorneys." (Id. at p. 2468.) Miller explains that although Graham was a 

nonhomicide case, "none of what [Graham] said about children—about their distinctive 
15

(and transitory) mental traits and environmental vulnerabilities—is crime specific. Those 

features are evident in the same way, and to the same degree, when . . . a botched robbery 

turns into a killing. So Graham's reasoning implicates any life-without-parole sentence 

imposed on a juvenile." (Id. at p. 2465.)

Miller, however, does not foreclose a life sentence without parole in a homicide 

case for " 'the rare juvenile offender whose crime reflects irreparable corruption.' " 

(Miller, supra, 132 S.Ct. at p. 2469, quoting Roper, supra, 543 U.S. at p. 573.) The court 

cautioned that "appropriate occasions for sentencing juveniles to this harshest possible 

penalty will be uncommon," and in imposing such a sentence the trial court must "take 

into account how children are different, and how those differences counsel against 

irrevocably sentencing them to a lifetime in prison." (Miller, at p. 2469.)

In People v. Caballero (2012) 55 Cal.4th 262, 268 (Caballero), the California 

Supreme Court, citing Graham and Miller, reversed a 110-year-to-life sentence for three 

counts of premeditated attempted murder with gang and firearm enhancements. The 

court held that sentencing a juvenile for a nonhomicide offense "to a term of years with a 

parole eligibility date that falls outside [his] natural life expectancy constitutes cruel and 

unusual punishment in violation of the Eighth Amendment," because the sentence is the 

"functional equivalent of a life without parole sentence." (Ibid.)8 Caballero, at pp. 268-

269, directed the trial court on remand to "consider all mitigating circumstances attendant 

 

8 Caballero defines a de facto life sentence as "a term of years with a parole 

eligibility date that falls outside the juvenile offender's natural life expectancy." 

(Caballero, supra, 55 Cal.4th at p. 268.)
16

in the juvenile's crime and life, including but not limited to his or her chronological age at 

the time of the crime, whether the juvenile offender was a direct perpetrator or an aider 

and abettor, and his or her physical and mental development, so that it can impose a time 

when the juvenile offender will be able to seek parole from the parole board."

The People assert the court properly considered Legaspi's age and other mitigating 

factors, and alternatively, any arguable constitutional error in imposing a de facto life 

sentence is harmless because under section 3051, he is entitled to a parole hearing during 

his 25th year of incarceration.9 In pronouncing sentence, the court stated: "In the 

sentencing memo, [the prosecutor] addressed the fact that . . . Legaspi was a juvenile at 

the time of the [offenses]. Pursuant to . . . Section 3051, he will have the opportunity of 

parole, and to the extent that the Court would have any discretion, based on the cold, 

calculated murders and attempted murders in this case, the Court believes that the 220-

year sentence is the appropriate sentence in this case." (Italics added.)

We conclude section 3051 renders moot any arguable Eighth Amendment error in 

Legaspi's sentencing. Senate Bill No. 260, under which section 3051 was promulgated, is 

the Legislature's response to Graham, Miller, and Caballero. The measure's legislative 

history explains: "The Legislature recognizes that youthfulness both lessens a juvenile's 

moral culpability and enhances the prospect that, as a youth matures into an adult and 

neurological development occurs, these individuals can become contributing members of 

 

9 The effect of section 3051 on juvenile sentencing is currently pending before the 

California Supreme Court. (In re Alatriste (2013) 220 Cal.App.4th 1232, review granted 

Feb. 19, 2014, S214652, consolidated with In re Bonilla, review granted Feb. 19, 2014, 

S214960.)
17

society. The purpose of this act is to establish a parole eligibility mechanism that 

provides a person serving a sentence for crimes that he or she committed as a juvenile the 

opportunity to obtain release when he or she has shown that he or she has been 

rehabilitated and gained maturity, in accordance with the decision of the California 

Supreme Court in [Caballero] and the decisions of the United States Supreme Court in 

[Graham] and [Miller]." (Sen. Bill No. 260 (2013-2014 Reg. Sess.) ch. 312, § 1, p. 2.)

Subdivision (a)(1) of section 3051 provides that any "prisoner who was under 23

years of age at the time of his or her controlling offense" is entitled to a "youth offender 

parole hearing." A juvenile sentenced to a determinate sentence shall receive a hearing 

during the 15th year of incarceration. (§ 3051, subd. (b)(1).) A juvenile sentenced to an 

indeterminate base term of less than 25 years to life shall receive a hearing during the 

20th year of incarceration (§ 3051, subd. (b)(1)(2)), and a juvenile sentenced to an 

indeterminate base term of 25 years to life, as was Legaspi, shall receive a hearing during 

the 25th year of incarceration (§ 3051, subd. (b)(1)(3)).

As discussed, Miller holds "that mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 

'cruel and unusual punishments' " (Miller, supra, 132 S.Ct. at p. 2460, italics added). 

Recently the United States Supreme Court issued its opinion in Montgomery v. Louisiana

(2016) 577 U.S. ___ [136 S.Ct. 718] (Montgomery) holding that the rule announced in 
18

Miller is substantive and must be applied retroactively.10 (Id. at pp. 732-736.) The issue 

of whether an opportunity for parole is sufficient under Miller was not squarely before 

the court in Montgomery. The majority opinion, however, notes that a "State may 

remedy a Miller violation by permitting juvenile homicide offenders to be considered for 

parole, rather than by resentencing them." (Id. at p. 736.) 

As an example of a permissible procedure Montgomery cites a Wyoming statute 

that is analogous to section 3051. The Wyoming provision, which like section 3051 

became effective after Miller, makes any person who committed an offense before 

reaching the age of eighteen "eligible for parole after commutation of his sentence to a 

term of years or after having served twenty-five (25) years of incarceration . . . ." 

(Wyo. Stat. Ann. § 6-10-301 (c) (2013).) Like the Wyoming statute, section 3051 

effectively abolishes impermissible mandatory life without parole sentences in California. 

In this case, given that the crimes were heinous, Legaspi was the direct perpetrator, and 

he was just shy of his 18th birthday when he committed them, there is no likelihood that 

had the court more carefully considered his age it would have imposed a sentence under 

which he would be entitled to a parole hearing before his 25th year of incarceration. 

Under these circumstances, a remand for resentencing would be an idle act. " ' "[A] case 

becomes moot when a court ruling can have no practical effect or cannot provide the 

parties with effective relief." ' " (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.) 

 

10 After Montgomery was issued, we requested and received supplemental briefing 

from the parties on what impact, if any, Montgomery has on this appeal.
19

Legaspi contends section 3051 does not moot his Eighth Amendment argument, 

because the dictates of Miller "must be followed at sentencing, not years later by a parole 

board." Legaspi cites Caballero, which held "the state may not deprive [juvenile 

offenders] at sentencing of a meaningful opportunity to demonstrate their rehabilitation 

and fitness to reenter society in the future." (Caballero, supra, 55 Cal.4th at p. 268, 

italics added.) When Caballero was decided, however, there was no legislation in place 

to ameliorate any Eighth Amendment problem with juvenile offender sentencing. Under 

section 3051, Legaspi is automatically entitled to a parole hearing during his 25th year of 

incarceration, during which he will have a "meaningful opportunity to demonstrate [his] 

rehabilitation and fitness to reenter society." (Caballero, at p. 268, italics added.) 

Subdivision (e) of section 3051 mandates that the hearing provide "a meaningful 

opportunity to obtain release." Legaspi does not assert a minimum parole eligibility date 

of 25 years, when he will be approximately 42 years of age, is unconstitutional.

B

Premeditated Murder

Lara contends the court erred by sentencing him to indeterminate terms of seven 

years to life on each of the three attempted premeditated murder convictions. He asserts 

the court should have imposed three terms of life with the possibility of parole. Salazar 

joins this argument. 

The People concede the point, and we concur. (§ 664, subd. (a).) The error was 

presumably inadvertent and based on section 3046, subdivision (a), which provides that 

no prisoner serving a life sentence may be paroled until he or she has served a term of at 
20

least seven years. This change has no practical effect on the sentences for counts 3 

through 5, but an unauthorized sentence is correctable on review. (People v. Quintero 

(2006) 135 Cal.App.4th 1152, 1156, fn. 3.)

C

Firearm Enhancements

Additionally, Lara contends the court violated section 654 by sentencing him to a 

term for the firearm enhancement under section 12022.53 on count 5 for attempted 

premeditated murder. Legaspi and Salazar join in this argument.

Section 12022.53, "which is also known as the 10-20-life law, prescribes 

substantial sentence enhancements for using a firearm in the commission of certain listed 

felonies" (People v. Oates (2004) 32 Cal.4th 1048, 1052 (Oates)), including murder and 

attempted murder (§ 12022.53, subd. (a)(1) & (18)). Subdivision (b) of the statute 

provides for an additional 10-year consecutive term when a principal personally used a 

firearm in the commission of the crimes; subdivision (c) provides for an additional 20-

year consecutive sentence when a principal personally and intentionally discharged a 

firearm in the commission of the crimes; and subdivision (d) provides for an additional 

consecutive sentence of 25 years to life when a principal personally and intentionally 

discharged a firearm in the commission of the crimes, which proximately caused great 

bodily injury or death. Section 12022.53 applies to Lara and Salazar, as well as Legaspi, 

because it imposes vicarious liability "on aiders and abettors who commit crimes in 

participation of a criminal street gang." (People v. Garcia (2002) 28 Cal.4th 1155, 1171; 

§ 21022.53, subd. (e)(1).)
21

Additionally, section 12022.53, subdivision (f) provides: "Only one additional 

term of imprisonment under this section shall be imposed per person for each crime. If 

more than one enhancement per person is found true under this section, the court shall 

impose upon that person the enhancement that provides the longest term of 

imprisonment." (Italics added.)

Here, the jury found that a principal used a firearm, and subdivisions (b), (c) and 

(d) of section 12022.53 applied to the two murder convictions (counts 1 and 2) and the 

three attempted murder convictions (counts 3 through 5). In conformance with 

subdivision (f) of section 12022.53, the court sentenced each defendant to five 

consecutive 25-year-to-life sentences under subdivision (d) of the statute.

Lara asserts that since only four of the five persons on whom Legaspi opened fire 

suffered great bodily injury or death, the sentence on the firearm enhancement on count 5 

under subdivision (d) of section 12022.53 was necessarily based on one of the same 

injuries that supported the enhancements on counts 1 through 4. He submits that one of 

the 25-year-to-life firearm enhancements must be stayed under section 654.

Section 654, subdivision (a) provides in part: "(a) 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." The California 

Supreme Court has held that section 654 may or may not apply to enhancement sentences

based on the circumstances of the offenses. "Often the sentencing statutes themselves 

will supply the answer to whether multiple enhancements can be imposed. . . . When this 
22

is the situation, recourse to section 654 will be unnecessary because a specific statute 

prevails over a more general one relating to the same subject. . . . [¶] Only if the specific 

statutes do not provide the answer should the court turn to section 654." (People v. 

Ahmed (2011) 53 Cal.4th 156, 163.) 

We conclude section 12022.53 specifies the answer here, and thus we need not 

consider section 654. Defendants were each convicted of five separate felonies, and they 

are each eligible for a firearm enhancement on each crime. The only question is whether 

a subdivision (c) (20 years) or (d) (25-year-to-life) enhancement under section 12022.53 

applies to count 5, which was not tied to any victim's great bodily injury or death, but to 

Puente, who avoided injury.

In Oates, a gang member shot at five rival gang members, seriously injuring one 

of them. He was convicted of five counts of attempted premeditated murder, one for 

each person in the group at which he fired. The court held that section 12022.53 required 

the imposition of multiple enhancements under subdivision (d) even though only one 

person was injured. (Oates, supra, 32 Cal.4th at p. 1056.) The court rejected the 

argument Lara raises here, that a court "should limit the number of subdivision (d) 

enhancements imposed 'to the same number of great bodily injuries inflicted.' " (Ibid.)

Oates explained: "In several respects, the language of section 12022.53 supports 

imposing multiple subdivision (d) enhancements under the circumstances here. First, by 

its terms, the subdivision (d) enhancement applies to 'any person' who, 'in the 

commission of' a specified felony, 'personally and intentionally discharges a firearm and 

proximately causes great bodily injury . . . or death, to any person other than an 
23

accomplice.' (Italics added.) Based on the single injury to Barrera, the requirements of a 

subdivision (d) enhancement are met as to each of [the] defendant's five attempted 

murder convictions, including those not involving the attempted murder of Barrera; 

attempted premeditated murder constitutes a specified offense [citation], and in the 

commission of each offense, [the] defendant 'personally and intentionally discharge[d] a 

firearm and proximately cause[d] great bodily injury' to a person 'other than an 

accomplice.' " (Oates, supra, 32 Cal.4th at p. 1055.) Oates noted that the "Legislature 

knows how to limit enhancements to harm done to a 'victim' when that is its intent," and 

had it intended to so limit section 12033.53, subdivision (d) it would have said so. (Id.

at p. 1056)

The court also found it "significant that the Legislature expressly included in 

section 12022.53 specific limitations on imposing multiple enhancements, but did not 

limit imposition of subdivision (d) enhancements based on the number of qualifying 

injuries." (Oates, supra, 32 Cal.4th at p. 1056.) The court concluded the "enactment of 

this subdivision shows that the Legislature specifically considered the issue of multiple 

enhancements and chose to limit the number imposed only 'for each crime,' not for each 

transaction or occurrence and not based on the number of qualifying injuries." 

(Id. at p. 1057.) The court found "no evidence of a contrary legislative intent," nor "any 

reason to believe the Legislature simply overlooked the kind of factual scenario at issue 

here, which is not particularly unusual." (Ibid.) 
24

Lara does not dispute that if we follow Oates, the imposition of multiple 

enhancements against him under subdivision (d) of section 12022.53 was proper. Rather, 

he asserts we should disregard Oates because it is somehow outdated law. Oates, 

however, has never been overturned, and we are obligated to follow Supreme Court 

authority. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We 

conclude section 12022.53, subdivision (d) authorizes the multiple 25-year-to-life 

enhancements imposed on defendants on counts 1 through 5.

DISPOSITION

The judgments are reversed insofar as Lara's and Salazar's first degree 

premeditated murder convictions are concerned, and the matter is remanded with 

directions. The People may accept a reduction of the convictions to second degree 

murder or choose to retry them on the greater offense as direct aiders and abettors. If the 

People accept a reduction, the trial court shall enter judgments against Lara and Salazar 

for second degree murder and sentence them accordingly. 
25

We direct the clerk to modify Lara's and Salazar's sentences to reflect terms of life 

with the possibility of parole for counts 3, 4 and 5, to amend the abstracts of judgments

accordingly, and to forward copies of the amended abstracts of judgments to the 

Department of Corrections. In all other respects, the judgments are affirmed.

BENKE, Acting P.J.

WE CONCUR:

MCINTYRE, J.

AARON, J.