Filed 3/ 8/ 22 P. v. Balderas CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL BALDERAS,

Defendant and Appellant. B309046

(Los Angeles County Super. Ct. No. BA456643

- 01)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark S. Arnold, Judge. A ffirmed in part

, vacated in part, and r emanded with directions

. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey , Senior Assistant Attorney General, Michael R. Johnsen, Supervising Deputy Attorney General, David E. Madeo and Theresa A.2

Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Defendant and appellant Gabriel Balderas was the driver
in a drive

- by shooting in which passenger Anthony Par e des shot at a residence, striking and injuring a young child playing on the porch

. A second person was on the porch with the child

. Balderas claimed that he believed Paredes planned to yell at the people w ho lived in the house as they drove past it, and that he was not aware Paredes planned to shoot anyone. At trial, the prosecution proceeded on alternative theories of liability

— (1)
that Balderas direct ly aided and abetted the crimes, or (2) that
Balderas was liable because the crimes were the natural and probable consequence s of disturbing the peace. The jury was instructed that it was not required to agree unanimously regarding the theory of liability. The jury found Balderas guilty of two counts of wi llful, deliberate, premeditated attempted murder (Pen. Code, §§ 664 /187, subd. (a) [counts 1 & 2]), 1 and one count of shooting at an inhabited dwelling (§ 246 [count 3]). As to all three counts, the jury found true gun use (§ 12022.53, subd s . (b)

– (d) & ( e)(1)) and gang allegations (§ 186.22, subd. (b)(1)(C) & (b)(4)). The trial court sentenced Balderas to three concurrent terms of 15 years to life in prison, and imposed and stayed the firearms
enhancements. Balderas filed a timely appeal.
In his opening brief, Balderas contend ed that under Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (Senate Bill 1437) and the

1 All further statutory references are to the Penal Code unless otherwise indicated.3

reasoning in People v. Chiu (2014) 59 Cal.4 th 155 ( Chiu )

, the natural and probable consequences doctrine wa s no longer a valid basis for a conviction of premeditated attempted murder in
California. He contended that his attempted murder conviction s should be reversed because the record d id not establish beyond a reasonable doubt that the jury based its verdicts on a legally valid theory of attempted murder. The People responded that regardless of the viability of the natural and probable consequences theory of attempted murder, Balderas’s convictions
should stan d because the trial court’s instructions on premeditation and deliberation required the jury to find that Balderas personally intended to kill the victims; therefore, Balderas would still be guilty of the attempted murders under
the current laws.
On Januar y 1, 2022, while Balderas’s appeal was pending, Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1

– 2) (Senate Bill 775)
and Assembly Bill No. 333 (Stats. 2021, ch. 699 , §§ 1

– 5 ) (Assembly Bill 333) became effective. Senate Bill 775 amends
section 1170.95 to p ermit a person convicted of attempted murder under the natural and probable consequences doctrine whose case is still pending to challenge the attempted murder conviction on direct appeal. ( § 1170.95, subds. (a) & (g).) Assembly Bill 333 imposed additional elements to establish gan g enhancements imposed pursuant to section 186.22

. We invited the parties to file supplemental briefing regarding the effect, if any, of Senate Bill 775 and Assembly Bill 333 on Balderas’s case

. The parties filed letter briefs. Balderas argues , and the People concede, that both the amendments to section 1170.95 effected by Senate Bill 775 and the amendments to section 186.22 effected by Assembly Bill 333 appl y retroactively to his case

.4

Balder as and the People also agree that , pursuant to Assembly Bill 333, we must vacate the gang enhancements imposed under section 186.22 and the gun enhancements imposed under section 12022.53, subd ivisions (b)

– (d) and (e)(1)

, and remand the matter
to the trial court to afford the People the opportunity retry the
enhancements under the current requirements. The parties disagree , however, regarding the impact of Senate Bill 775 : Balderas contends the jury may have convicted him under a legally invalid theory, while the People argue the jury’s verdicts indicate, as a matter of law, that Balderas was found guilty under a still valid theory of attempted murder

. On this remaining contested issue, we agree with the People.
We vacate the se ntence enhancements imposed under sections 186.22 and 12022.53, and remand for further proceedings consistent with this opinion, but otherwise affirm the
trial court’s judgment

.

DISCUSSION

Senate Bills 1437 and 775

Senate Bill 1437 was enacted to “ amen d the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participa nt in the underlying felony who acted with reckless indifference to human life. ” (Stats. 2018, ch. 1015, § 1. ) At the time that Balderas filed the notice of appeal, the issues of whether Senate Bill 1437 applied to attempted murder and whether a defendan t could challenge a5

conviction on direct appeal were pending before our Supreme
Court. ( People v. Lopez (2019) 38 Cal.App.5 th 1087, cause transferred and opinion not citable (Ca l., Nov. 10, 2021, No. S258175).)
Senate B ill 775 became effective while this appeal was pending. Under the amendments made by Senate Bill 775

, a person convicted of attempted murder under the natural and probable consequences doctrine may directly appeal the
conviction pursuant to section 1170.9 5, subdivision ( g). Senate
Bill 775 clarifies “ that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of m urder under the same
theories. ” 2 (Stats. 2021, ch. 551, § 1. )

Analysis

Balderas contends that his attempted murder convictions must be reversed under Senate Bill 775’s amendments to section 1170.95, because the record does not establish that the jury based its verdicts on a valid legal theory of liability for attempted
murder. He asserts that t he error was not harmless beyond a
reasonable doubt

, the jury was instructed that it need not unanimously agree regarding the theory of guilt, and the
evidence was susceptible to conflicting reasonable inferences. Balderas argue s that t he jury’s true findings with respect to

2 Because Senate Bill 775 abrogates attempted murder under the natural and probable consequences doctrine, we need not consider the implications of Chiu

, supra , 59 Cal.4 th 155 , in the context of attempted murder.6

premeditation and deliberation were not dispositive because the jury instructions did not require the jury to find that Balderas personally intended to kill the victims. The People argue that Balderas’s claim is without merit because the record demonstrates beyond a reasonable doubt that the jury based its verdict on the valid legal theory that Balderas
was a direct aider and abetto r of the attempted murders. In finding that Balderas committed premeditated and deliberate attempted murder, the jury necessarily found that he harbored
the intent to kill. The People further argue that it was extremely unlikely that the jury would have found Balderas guilty under the natural and probable consequences theory given the overwhelming evidence of his guilt as a direct aider and abettor. Where the jury is instructed on two theories of liability

— one valid and one invalid

— we must reverse the con viction unless we can conclude beyond a reasonable doubt that the error was harmless

. (

People v. Aledamat (2019) 8 Cal.5th 1, 9 .) In this case, we conclude the error was harmless , because in finding that the attempted murders were premeditated and delibe rate, the jury necessarily found that Balderas intended to kill the victims,
and he was therefore legally convicted of attempted murder as defined under the revised and current laws. (§§ 188, subd. (a)(1)
& 664 .) Here, the jury was instructed regarding at tempted murder under CALCRIM No. 600 that: “The defendant is charged with attempted murder in counts 1 and 2. [ ¶ ] To prove that the defendant is guilty of attempted murder, the People must prove
that: [ ¶ ] 1. T

he defendant took at least one direct but ineffective step toward the killing of another person; [ ¶ ] and [ ¶ ] 2. The
d efendant intend ed to kill that person. ” (Italics added.)7 The jury was instructed that Balderas could be convicted of a crime (attempted murder or shooting at an inhabited dwelling) as an aider and abettor of the perpetrator if he knew of the perpetrator’s unlawful purpose and specifically intended to and
did aid , facilitate, promote, encourage, or instigate the perpetrator’s commission of a crime. (CALCRIM No. 400 [aiding and abetting; general principles; CALCRIM No. 401 [aiding and abetting intended crimes].) The trial court also instructed the jury that it c ould find Balderas guilty of attempted murder as a natural and probable consequence of committing the crime of disturbing the peace under CALCRIM No. 402, if the People proved beyond a
reasonable doubt that:

“ 1. The defendant is guilty of disturbing the p eace, in violation of Penal Code section 415;

“ 2. During the commission of disturbing the peace the crime of attempted murder and shooting into an inhabited dwelling occurred;

“ And

“ 3. Under all of the circumstances

, a reasonable person in
the defendant’s position would have known that the commission of attempted murder and shooting into an inhabited dwelling was a natural and probable consequence of commission of disturbing the peace. ” 3

3 The instructions quoted above are the verbal instructions given to the jury as reflected in the reporter’s transcript at trial. We note that the written instructions provided to the jury differ from the oral instructions ; s pecifically, the written instruction s omit ted count 3 (shooting at an inhabited dwelling) as an additional basis for liability from elements 2 and 3 of the8 With respect to the allegations that Balderas committed the attempted murders with premeditation and deliberation, the trial court instructed under CALCRIM No. 601, in relevant part:

“ If you find the defendant guilty of attempted murder, you must then decide whether the People have proved the additional allegat ion that the attempted murder was done willfully

, and
with deliberation and premeditation.

“ The defendant acted willfully if he intended to kill when he
acted

. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the

consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act of attempted murder. ” ( Italics added .) The jury convicted Balderas of two counts of attempted
murder and found true the special allegations that he committed the attempted murders with premeditation and deliberation. Balderas argues that CALCRIM No. 601 instructed the jury that it must determine whether “ the attempted murder was done willfully

, and with deliberatio n and premeditation ” (italics added), but did not instruct it that it must find Balderas personally (and not the shooter) acted with premeditation and deliberation in the attempted murder

— i.e.

, it did not instruct the jury that Balderas had to intend to ki ll for the attempted murders to be premeditated and deliberate

. Balderas acknowledges that CALCRIM No. 601 refers to “the defendant” when defining will ful ness, deliberation, and premeditation, but he argues that the term “defendant” was confusing because of the

attempted murder instruction quoted above . The differences do not impact the result here , as our analysis is based upon the oral instru ctions, which are broader than the written instructions

.9

manner in which it was employed in CALCRIM No. 600. There, he argues, the term referred interchangeably to the perpetrator
and the defendant

. The a rgument lacks merit. As Balderas concedes, the premeditation and deliberation special allegatio n instruction (CALCRIM No. 601) referred solely to “ the defendant ” . It was
therefore clear that it was Balderas’s mental state that was at
issue. Balderas was not tried with Paredes; he was the only defendant in this case. As such, the jury would not have understood “ the defendant” to mean anyone other than Balderas. Moreover, a ny confusion as to the term “ the defendant” as used in the attempted murder instr uction (CALCRIM No. 600) could not have inured to Balderas’s benefit, as the jury would have understood the intent requirement to be that of Balderas, the defendant, not the perpetrator. So construed, the instruction would require the jury to find that Ba lderas intended to kill the
victims. The jury’s true findings at trial on the premeditation and deliberation allegations establish as a matter of law that
Balderas intended to kill , and was therefore convicted under a theory of att empted murder that remai ns legally valid under
current law

. Any error is harmless beyond a reasonable doubt.

Assembly Bill No. 333

“ Assembly Bill 333 amends section 186.22 to require proof of additional elements to establish a gang enhancement. ” ( People v. Lopez (2021) 73 Cal.App.5th 327

, 343 ( Lopez ) .) As relevant here, the bill amends section 186.22, subdivision (e)(1) to require the prosecution to prove “ the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained10

juvenile pe tition for, or conviction of” two or more of the offenses enumerated in subdivision (e)(1)(A)

– (Z) to establish a “‘pattern of criminal gang activity [.] ’” “[A] t least one of these offenses [must have] occurred after the effective date of this chapter, and the
last of [the] offenses [must have] occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed

. ” (§ 188.22
, subd. (e)(1).) The prosecution must prove that “ the offenses wer e committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offense is more than reputational .” ( Ibid .) These amendments to section 186.22 also impact certain

gun enhancements imposed under section 12022.53

. Where the defendant has not personally used a firearm in the commission of
the offense , that defendant will still be subject to a firearm
enhancement if the defendant was “‘ convicted of a felony
committed for t he benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal con duct by gang members’ as set forth in section 186.22, subdivision (b) ” and “ ‘[a]ny principal
in the offense’ . . . ‘ committed any act specified i n subdivision (b), (c), or (d),’ that is, any principal involved in the offense must have personally used a firearm in the escalating use categories provided in section 12022.53 , subdivisions (b) through (d) .” ( Lopez

, supra , 73 Cal.App.5th at p. 347

. ) We agree with the parties that the aforementioned amendments to section 186.22 apply retroactively to cases like Balderas’s, which was still pending on appeal at the time the legislation took effect

. ( Lopez

, s upra , 73 Cal.App.5th at p. 344 ; see also People v. Figueroa (1993) 20 Cal.App.4th 65, 6811

( Figueroa ) [ “[A] defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not preclude its effect to pending case s ” ]. ) Here, the People concede that the two predicate offenses
used at trial to establish a pattern of criminal gang activity were

not com mitted within three years of the date of the charged offenses, as required under the revised terms of section 186.22, subdivision (e) (1) , and that, as a consequence, the gang
enhancements must be vacated

. 4 We accept the People’s
concession. 5 We also ac cept the People’s concession that, because the gun enhancements were imposed under section 12022.53, subdivision (e)(1), on the basis that the offense was committed for the benefit of a criminal street gang and a principal (other than Balderas) used a fire arm in commission of the crime, the gun
enhancements must also be vacated. (See Lopez

, supra , 73 Cal.App.5th at pp. 347

– 348 .) Under these circumstances, remand is required and the prosecution must be permitted to retry the enhancement

. ( See People v. Eagle (2016) 246 Cal.App.4th 275, 280, citing Figueroa

, supra , 20 Cal.App.4th at pp. 71

– 72, fn. 2 [ “When a statutory amendment adds an additional element to an offense, the

4 The current offenses were committed on April 15, 2017. The predicate offenses introduced at trial were committed on July 8, 2012, and April 2, 2013.

5 Balderas raises several grounds for vacating the gang enhancements, however, having reached the conclusion that the enhancements must be vacated on this ground, we need not address the other arguments that he raises.12

prosecution must be afforded the opportunity to establish the additional element up on remand” ] .)

DISPOSITION

We affirm the convictions. We vacate t he gang enhancement allegation findings under section 186.22, and the

gang

- related firearm enhancement findings under section 12022.53, and remand the matter to the trial court to permit the People to elect to retry the allegations or , if the People do not elect to retry the allegations, to proceed with resentencing Balderas in conformance with this opinion

.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.