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

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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. Affirmed in part, 

vacated in part, and remanded 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 Paredes 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 who 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 directly aided and abetted the crimes, or (2) that 

Balderas was liable because the crimes were the natural and 

probable consequences 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 willful, 

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, subds. (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 contended 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.4th 155 (Chiu), the 

natural and probable consequences doctrine was no longer a valid 

basis for a conviction of premeditated attempted murder in 

California. He contended that his attempted murder convictions

should be reversed because the record did 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 stand 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 January 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 permit 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 gang 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 apply retroactively to his case. 
4

Balderas 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, subdivisions (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 sentence 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 “amend 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 participant 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 defendant could challenge a 
5

conviction on direct appeal were pending before our Supreme 

Court. (People v. Lopez (2019) 38 Cal.App.5th 1087, cause 

transferred and opinion not citable (Cal., Nov. 10, 2021, No. 

S258175).)

Senate Bill 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 1170.95, 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 murder 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 the 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 argues that the 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.4th 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 abettor 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 conviction 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 deliberate, 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 attempted 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. The defendant took at least one direct but ineffective 

step toward the killing of another person; [¶] and [¶] 2. The 

defendant intended 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 could 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 peace, 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; specifically, the written instructions

omitted count 3 (shooting at an inhabited dwelling) as an 

additional basis for liability from elements 2 and 3 of the 
8

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 

allegation 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 deliberation 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 kill for the attempted 

murders to be premeditated and deliberate. Balderas 

acknowledges that CALCRIM No. 601 refers to “the defendant” 

when defining willfulness, 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 

instructions, 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 argument lacks merit. As Balderas concedes, the 

premeditation and deliberation special allegation 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, any confusion as to the term “the defendant” as 

used in the attempted murder instruction (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 Balderas 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 attempted murder that remains 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, sustained 
10

juvenile petition 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 were 

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 the 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 conduct by gang members’ as 

set forth in section 186.22, subdivision (b)” and “‘[a]ny principal 

in the offense’ . . . ‘committed any act specified in 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, supra, 73 Cal.App.5th at p. 344; 

see also People v. Figueroa (1993) 20 Cal.App.4th 65, 68
11

(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 cases”].)

Here, the People concede that the two predicate offenses 

used at trial to establish a pattern of criminal gang activity were 

not committed 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 accept 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 firearm 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 upon remand”].) 

DISPOSITION

We affirm the convictions. We vacate the 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.