Filed 4/26/22 P. v. Corona CA5

(opinion on transfer from Supreme Court)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ALONSO CORONA,

Defendant and Appellant.

F075515

(Kern Super. Ct. No. BF161200C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. 

Brownlee, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, and Darren M. 

Richie for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. 

Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney 

General, Louis M. Vasquez, Lewis A. Martinez, Sarah J. Jacobs and Ian P. Whitney, 

Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

In 2017, a jury convicted appellant and defendant Alonso Corona of first degree 

premeditated murder for the shooting death of Victor Anaya (Pen. Code, § 187, 

subd. (a);1 count 1). The jury also convicted defendant of attempted premeditated murder 

involving another victim, David Anaya,2stemming from the same incident (§§ 664, 187, 

subd. (a); count 2). The jury found true that defendant committed these crimes to benefit 

a criminal street gang (§ 186.22, subd. (b)(1)), and that, during these offenses, at least one 

principal intentionally and personally discharged and personally used a firearm that 

proximately caused great bodily injury or death (§ 12022.53, subds. (d), (e)(1)). The 

jury, however, did not find true that defendant personally inflicted great bodily injury 

upon David during the attempted murder.

Stemming from the same incident as counts 1 and 2, the jury convicted defendant 

of shooting at an inhabited dwelling (§ 246; count 3) and conspiracy to commit a crime 

(§ 182, subd. (a)(1); count 4). In these counts, the jury also found true gang 

enhancements (§ 186.22, subd. (b)(1)). In count 3 (shooting at an inhabited dwelling),

the jury determined that at least one principal intentionally and personally discharged a 

firearm (§ 12022.53, subds. (c), (e)(1)). In count 4 (conspiracy), the jury determined that 

defendant used a firearm (§ 12022.5, subd. (a)). Defendant was sentenced to an 

aggregate prison term of 82 years to life.

In 2019, we issued an unpublished opinion in which we reversed the first degree 

murder conviction in count 1 because of prejudicial instructional error. We agreed with 

defendant it was possible the jury had improperly relied on the natural and probable 

consequences doctrine to find him guilty in count 1 as an aider and abettor. We could not 

declare the error harmless beyond a reasonable doubt. We modified the conviction in 

1 All future statutory references are to the Penal Code unless otherwise noted.

2 Because Victor and David share the same last name, we will refer to them by 

their first names to avoid confusion.
3.

count 1 to second degree murder but gave the People the opportunity to retry the 

premeditation and deliberation allegation. In all other respects, we affirmed the 

judgment. (People v. Corona (Sept. 18, 2019, F075515).)

The California Supreme Court accepted review of this matter, and, on 

December 22, 2021, it directed us to vacate our prior opinion and reconsider the cause in 

light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775).

On February 1, 2022, we vacated our prior opinion and requested supplemental 

briefing from the parties. Via supplemental briefs, the parties agree that our prior 

disposition in count 1 is correct. Regarding the attempted premeditated murder

conviction in count 2, we agree with defendant that it must be reversed in light of Senate 

Bill 775. An accomplice may no longer be convicted of attempted murder based on the

natural and probable consequences doctrine. (People v. Sanchez (2022) 75 Cal.App.5th 

191, 196.) In light of the instructional error that occurred in this matter, we cannot 

declare beyond a reasonable doubt that the jury convicted defendant in count 2 based on a 

legally valid theory.

We again reverse the first degree murder conviction in count 1, but modify it to 

second degree murder. We reverse the attempted premeditated murder conviction in 

count 2. The People shall have the opportunity to retry the premeditation and 

deliberation allegation in count 1, and the attempted murder charge in count 2. In all 

other respects, we affirm the judgment.

BACKGROUND

We summarize the material trial facts. We provide additional facts later in this 

opinion when relevant to specific issues raised on appeal.

I. The Shootings at the House Party

The events in question transpired at a house party in Kern County. Upwards of 75 

to 100 people attended the party throughout the night and into the early morning hours of 

August 15, 2015. Defendant was a gang member when these events occurred. He 
4.

belonged to a gang known as CSB, which stood for either Can’t Stop Banging or Can’t 

Stop Balling.

The prosecution established that defendant attended the house party. In addition 

to eyewitness testimony confirming defendant’s presence, defendant’s DNA was located 

on an empty beer bottle recovered at that house after these events. Defendant arrived at 

the party around midnight with about 10 other CSB members. The group had not been 

invited to the party, but someone had received a text message about it. That night, 

defendant wore a white T-shirt and a blue “L.A.” hat.

Jose Montoya attended the party with defendant. Montoya was the younger 

brother of defendant’s girlfriend. Defendant referred to Montoya as his brother-in-law.

The trial evidence established that defendant was armed when he attended this 

party. A CSB gang member, Collin Alvarado, testified that he saw both defendant and 

Montoya each with handguns in the evening before this party started. Other witnesses 

saw defendant at the party in possession of a gun.

As the party began to wind down in the early morning hours, the CSB members 

were asked to leave. The situation became tense. Some of the CSB members appeared 

upset and they did not readily agree to leave. Eventually, the CSB group moved to the 

front yard.

In the front yard, more words were exchanged between the CSB group and the 

males escorting them out of the house. There were about 15 males all together. A CSB 

member said, “We’re not going to leave until this gets resolved.” Victor, the murder 

victim, initially tried to calm down the situation. A CSB member was heard saying, 

“You think we’re not going to do anything?” A member in the CSB group also said 

something like “I’m going to show you what I’m going to do.” Defendant was present in 

the front yard when these exchanges occurred. As the situation became tense, a CSB 

gang member said, “We are just going to f[**]k these fools up.” Defendant appeared 

mad. He said things like, “I don’t give a f[**]k if this is your house.” A fellow gang 
5.

member told defendant something like, “[W]hatever you want to do, I’m with you.” A 

fist fight ensued. During the fight, multiple witnesses heard two separate volleys of 

shots. The first volley involved two shots. The second volley occurred about a minute 

later, and it involved anywhere from three to five shots. The witnesses described two 

shooters, one wearing a white shirt and blue hat. The second shooter wore dark clothing. 

The shots originated from the CSB group.

3

At trial, the prosecution established that defendant fired the first volley of two 

shots. David, the victim of the attempted murder, testified that he saw defendant draw a 

black handgun, point it at Victor, and fire two shots. David ran at defendant and began 

wrestling him for the gun. They ended up wrestling on the hood of a car. While they 

struggled, defendant slid his weapon across the hood to another person. David eventually 

broke free and ran towards the house. David reached the front door and, as he opened it, 

he heard multiple shots. He was struck once in his mid-back. David woke in the 

hospital. While hospitalized, he spoke with detectives. He identified defendant in a 

photographic lineup as the person who fired two shots at Victor. David was 70 percent 

certain of his selection when he made it. At trial, David identified defendant as the 

suspect who shot twice at Victor. He said that Victor’s shooter had worn a white shirt 

and a blue hat.

Another witness, J.L., saw a CSB member push Victor, who pushed back. The 

CSB member drew a firearm from his waistband, and Victor began struggling with this 

person over the firearm. J.L. heard two shots, but he did not see who fired those shots.

After these events, J.L. selected defendant’s photograph as the person he saw draw a 

firearm and struggle with Victor. At the time he made this selection, J.L. was 75 percent 

certain. At trial, however, J.L. said he did not recognize defendant in court.

3 Neither Victor nor David, the two shooting victims, were armed when these 

events occurred.
6.

A fellow gang member, Alvarado, testified that he was involved in the fight. 

During the brawl, he heard two shots fired. He then saw defendant running away with a 

“pistol.”

II. Law Enforcement’s Investigation

Police officers were dispatched to the house party at about 2:12 a.m. on August 

15, 2015. Victor suffered two gunshot wounds. One shot went through his torso but did 

not pierce any vital organs. The other bullet pierced an artery, which caused death within 

minutes due to internal hemorrhaging.

David underwent surgery and he was hospitalized for multiple weeks. At the time 

of his trial testimony, he was still disabled.

Fresh bullet strikes were found on vehicles parked in front of the residence. Bullet 

strikes were also seen near the residence’s front door, and on its wall. At trial, a police 

sergeant opined that the multiple shots had been fired from “two different positions.” 

Police recovered two 9-millimeter shell casings in the front yard. Later testing confirmed 

that the two 9-millimeter casings had been fired from the same weapon. In addition, 

fragments of a projectile were recovered from Victor’s body during his autopsy. Testing 

suggested that the projectile removed from Victor’s body came from a .38- or a .357-

caliber firearm.

During its investigation, police learned from a source that defendant and Montoya 

had been responsible for this shooting. This information had originated from defendant’s 

brother. About four days after this shooting, an arrest warrant was issued for Montoya 

for the charge of first degree murder.4

III. The Defense Evidence

Defendant’s mother and his girlfriend (the mother of his child) testified on his 

behalf. They collectively asserted that defendant was home with them on the night in 

4 Montoya was not a party in this prosecution.
7.

question. Defendant’s birthday was August 14, and they had stayed home to celebrate.

The following day, defendant was home in the morning, but he then disappeared.

The parties stipulated that defendant’s fingerprints were not located at the shooting 

scene.

DISCUSSION

I. The Conspiracy Charge in Count 4 was Based on a Valid Legal Theory

In count 4, defendant was convicted of conspiracy to commit a crime in violation 

of section 182, subdivision (a)(1). The prosecution asserted that defendant had conspired 

to violate section 407. Under this statute, “[w]henever two or more persons assemble 

together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous 

manner, such assembly is an unlawful assembly.” (§ 407.)

Defendant argues that his conspiracy conviction in count 4 could be based on a 

theory that he conspired to commit a lawful act in a violent manner (i.e., the second 

prong of § 407). He contends that this second prong cannot serve as a valid basis for 

conspiracy because a person cannot conspire to commit a lawful act. He further 

maintains that a lawful assembly could turn violent (i.e., unlawful) due to reasons beyond 

the conspirators’ control or intent. He asserts that it is impossible to know how the jury 

determined guilt for conspiracy, and he insists that reversal of this conviction is required. 

These arguments are meritless.

5

Conspiracy is defined as two or more people agreeing to commit any crime 

coupled with proof of the commission of an overt act by one or more of the parties to that 

agreement. (People v. Swain (1996) 12 Cal.4th 593, 600.) Conspiracy is a specific intent 

crime. (Ibid.) To sustain a conviction for conspiracy to commit a particular offense, a 

prosecutor must establish that the conspirators intended to agree, but also that they 

intended to commit the elements of the underlying offense. (Ibid.)

5

In his reply brief, defendant makes it clear that this claim is not based on 

insufficiency of the evidence in support of his conspiracy conviction.
8.

Relatively few published opinions discuss the crime of unlawful assembly. The 

intent for an unlawful assembly may occur either before or at the time of assembling, or it 

may be formed after the assembling has commenced. (People v. Kerrick (1927) 86 

Cal.App. 542, 551.) The crime of unlawful assembly “pertains to the assembly at large.

[Citation.] Not every member of the assembly must individually commit unlawful acts to 

render the assembly unlawful. [Citations.] If a person is a participant in a lawful 

assembly which becomes unlawful, he has an immediate duty upon learning of the 

unlawful conduct to disassociate himself from the group.” (In re Wagner (1981) 119 

Cal.App.3d 90, 103.)

Defendant cites no authority, and we have not found any, holding that persons 

cannot conspire to violate the second prong of section 407. In any event, we conclude 

that such a conviction is proper. Based on a plain reading of the statute, it is clear that 

multiple persons could agree to assemble to do a lawful act in a violent manner. Indeed, 

two or more people could agree to assemble at a political rally, a sporting event or a 

party, and intend to commit violence during that assembly. Moreover, persons could 

assemble peaceably and, after the assembly has started, they could agree to use violence. 

Once violence occurs, an unlawful assembly has resulted. If a member of the conspiracy 

commits an overt act in furtherance of the agreement to commit violence, a prosecutor 

could legally establish a conspiracy to violate section 407.

We reject defendant’s claim that criminal liability under the second prong of 

section 407 is “redundant” to the first prong. Assembling to do an unlawful act (the first 

prong) clearly encompasses conduct not contemplated in the language of the second 

prong (assembling to do a lawful act in a violent manner). For instance, a group of 

protestors could, without relying on violence, occupy a government building and shut 

down its operations. Under the first prong of section 407, that assembly could be deemed 

unlawful and those knowingly participating could face criminal liability. On the other 

hand, the same protesters could participate at an otherwise lawful political rally which 
9.

grew violent. Those protestors who knowingly took part in the violent assembly could 

face criminal liability under the second prong of section 407. (See In re Brown (1973) 9 

Cal.3d 612, 623 [holding that the prohibition under section 407 to do a lawful act “must 

be limited to assemblies which are violent or which pose a clear and present danger of 

imminent violence”].) In any event, the words of section 407 are clear and unambiguous 

so we will apply their common meaning. (Meyer v. Sprint Spectrum L.P. (2009) 45 

Cal.4th 634, 640; Burden v. Snowden (1992) 2 Cal.4th 556, 562.) The plain statutory 

language belies defendant’s suggestion that criminal liability cannot occur from the 

second prong, or that two or more persons could not agree to violate it.

The jury in this matter was told that defendant was charged in count 4 with 

conspiracy to commit unlawful assembly. With CALCRIM Nos. 415 and 417, the jury 

was instructed that the prosecution had to prove that defendant agreed with at least one 

other named person to unlawfully assemble, and defendant held an intent to unlawfully 

assemble. One member of the conspiracy had to have committed a defined overt act to 

accomplish the unlawful assembly. One possible overt act was defendant shooting and 

killing Victor. Another possible overt act was Montoya shooting and injuring David. 

The jury was told that a member of the conspiracy is criminally liable for any act done to 

further the conspiracy which was “a natural and probable consequence of the common 

plan or design of the conspiracy.”

With CALCRIM No. 2685, the court informed the jury that the prosecution had to 

prove that defendant participated in an unlawful assembly. This was defined as “when 

two or more people assemble together to commit a crime or to do a lawful act in a violent 

manner. When two or more people assemble to do a lawful act in a violent manner, the 

assembly is not unlawful unless violence actually occurs or there is a clear and present 

danger that violence will occur immediately.”

During closing argument, the prosecutor told the jurors that they had to decide 

defendant’s intent when he brought a gun to the party and used it to aim and fire at 
10.

Victor. The prosecutor explained that the charge of conspiracy to unlawfully assemble 

was based on defendant’s intent to provoke a fight in the front yard. Later, the prosecutor 

stated that unlawful assembly “is basically coming together to commit a crime or coming 

together to lawfully, [sic] but doing it in a violent manner.” He also described it as 

coming “together to commit a crime or to come together to commit an unlawful act in a 

moderate way.”

6

The prosecutor asserted that the evidence clearly established “a conspiracy to 

unlawfully assemble in the front yard.” He argued that an unlawful assembly occurred 

when defendant fired his firearm at Victor in the front yard. According to the prosecutor, 

because of the unlawful assembly, defendant was liable for second degree murder under a 

natural and probable consequences theory even if it was Montoya who fired the fatal 

shot. However, if the jury determined that defendant acted with premeditation, and he 

was either a direct perpetrator or an aider and abettor, then defendant was guilty of first 

degree murder.

We reject defendant’s claim that he merely agreed to assemble to engage in a 

lawful act. To the contrary, the evidence overwhelmingly suggested that defendant and 

the other CSB members assembled in the front yard to provoke a fight. Such conduct 

violated the first prong of section 407 (an assembly to do an unlawful act). After the 

assembly began, violence occurred. This violence was an overt act in furtherance of that 

6 Respondent impliedly concedes that the prosecutor misstated the elements of 

unlawful assembly. Respondent, however, argues that any misconduct was not preserved 

for appeal and was also harmless in light of the jury instructions given and the 

prosecutor’s remaining closing argument. We need not address any suggested 

prosecutorial misconduct in this instance because, in his reply brief, defendant admits that 

he did not present this claim as one of prosecutorial error or misconduct. Instead, 

defendant contends that the prosecutor’s misstatements are further evidence that his 

guilty verdict in count 4 was not based on a legally valid theory. We reject defendant’s 

arguments. Based on the totality of the jury instructions and the prosecutor’s arguments, 

defendant’s conviction for conspiracy to commit unlawful assembly was based on a 

legally valid theory.
11.

conspiracy. Thus, even if the evidence suggested that defendant initially assembled with

others in a lawful fashion, he nevertheless violated the second prong of section 407. In 

either event, defendant could be properly convicted of conspiracy to violate section 407.

Based on this record, we reject defendant’s arguments that his conspiracy 

conviction (count 4) was based on a legally invalid theory.7 Under the circumstances of 

this case, it was legally possible for defendant to be guilty of conspiracy to unlawfully 

assemble, even under the second prong of section 407. Accordingly, defendant’s 

arguments are without merit, and this claim fails.

II. The Convictions in Counts 1 and 2 Must be Reversed but Reversal is not 

Required for the Conviction in Count 3

The parties agree, as do we, that instructional error occurred in count 1 (first 

degree premeditated murder), count 2 (attempted premeditated murder), and in count 3 

(shooting at an inhabited dwelling). The instructional error involved CALCRIM No. 402 

(the natural and probable consequences doctrine) and CALCRIM No. 417 (conspiracy). 

The trial court incorrectly inverted the target offense (the conspiracy charged in count 4) 

with the nontarget offenses (second degree murder, attempted murder, voluntary 

manslaughter, attempted voluntary manslaughter, or shooting at an inhabited dwelling). 

In short, the court improperly instructed the jury that defendant was guilty of 

second degree murder, attempted murder, voluntary manslaughter, attempted voluntary 

manslaughter, or shooting at an inhabited dwelling if (1) he entered the conspiracy to 

7 Defendant claims that the prosecutor should have charged him with conspiracy 

to disturb the peace. He argues that such a charge would have avoided the “dual theories 

of liability” presented under the charge of conspiracy to unlawfully assemble under 

section 407. He maintains that, by charging both prongs of unlawful assembly as the 

target of the alleged conspiracy, the prosecutor “opened the door for a possible conviction 

for a non-criminal conspiracy.” We need not respond to these arguments because we 

have already determined that the prosecution presented the jury with a legally valid 

theory of criminal liability. In any event, it was the prosecutor who had discretion 

regarding whom to charge and what charges to bring. (People v. Birks (1998) 19 Cal.4th 

108, 134.)
12.

commit unlawful assembly, (2) a coconspirator committed unlawful assembly to further 

the conspiracy, and (3) those nontarget offenses listed above were a natural and probable 

consequence of the conspiracy. This same instructional error appeared in the written 

instructions provided to the jury during its deliberations.

The parties previously disputed whether or not this instructional error was 

prejudicial in counts 1, 2 and 3. We previously concluded that the first degree murder 

conviction in count 1 had to be reversed, and we modified it to second degree murder. 

We gave the People the opportunity to accept that reduction or retry the premeditation 

and deliberation allegation. (People v. Corona, supra, F075515.) However, we 

determined that reversal was not warranted for defendant’s conviction for attempted 

murder in count 2, or for his conviction for shooting at an inhabited dwelling in count 3. 

(Ibid.) 

In light of Senate Bill 775, we now agree that the attempted murder conviction in 

count 2 must also be reversed. However, we continue to hold that reversal is not 

warranted for the conviction in count 3.

A. An improper legal theory was used to obtain the conviction in count 1 for 

first degree premeditated murder

While defendant’s appeal was pending, the Legislature substantially modified the 

law regarding accomplice liability for murder and attempted murder. 

Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) eliminated the

natural and probable consequences doctrine as a basis for finding a defendant guilty of

murder. (People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill 1437 also 

significantly narrowed the felony-murder exception to the malice requirement for murder. 

(See §§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957.) 

Senate Bill 1437 created a procedure by which a person convicted of murder under the 

natural and probable consequences doctrine may file a petition with the sentencing court 

to have the conviction vacated. (Former § 1170.95, subd. (a).) Following Senate 
13.

Bill 1437, the Courts of Appeal were split on whether it applied to attempted murder. 

Senate Bill 775, which became effective January 1, 2022, resolved that dispute.

Senate Bill 775 now permits a person convicted of murder or attempted murder 

under the natural and probable consequences doctrine to file a petition with the 

sentencing court to have the conviction vacated if certain conditions apply. (§ 1170.95, 

subd. (a)(1)–(3).) This amendment also permits a person convicted of murder or 

attempted murder to challenge the validity of those convictions on direct appeal if the 

convictions are not yet final.8 (§ 1170.95, subd. (g).)

Before we filed our previous opinion in this matter, our high court previously held 

that, when an aider and abettor is liable for premeditated murder under the natural and 

probable consequences doctrine, the appropriate punishment is second degree murder. 

(People v. Chiu (2014) 59 Cal.4th 155, 166, superseded by statute as stated in People v. 

Gentile, supra, 10 Cal.5th at pp. 848–849.) However, the Supreme Court now holds that 

neither first nor second degree murder may be based on a natural and probable 

consequences theory. (People v. Gentile, at p. 846.) Malice for murder cannot be 

imputed to a person based solely on his or her participation in a crime. (§ 188, subd. 

(a)(3).)

Here, the trial court informed the jury that defendant was being prosecuted for first 

degree murder under three theories: (1) as a perpetrator; (2) under a theory of aiding and 

abetting; and (3) based on conspiracy.

9

In our prior opinion, we concluded that the trial 

court had improperly invited the jury to find defendant guilty of first degree murder if he 

was a member of a conspiracy to unlawfully assemble and a murder (or a lesser included 

8 The parties agree, as do we, that Senate Bill 775 retroactively applies in this 

matter because defendant’s appeal is not yet final. (See People v. Porter (2022) 73 

Cal.App.5th 644, 652; People v. Montes (2021) 71 Cal.App.5th 1001, 1006–1007.)

9

In count 4, defendant was convicted of conspiracy to commit a crime in violation 

of section 182, subdivision (a)(1). The prosecution asserted that defendant had conspired 

to unlawfully assemble in violation of section 407.
14.

offense) occurred as a natural and probable consequence of that conspiracy. The jury 

was never informed it could not find defendant guilty of first degree murder based on the 

natural and probable consequences doctrine. The trial court cautioned the jurors that they 

could not find defendant guilty of first degree murder unless they all agreed that the 

prosecution had proven that defendant committed murder, but the jurors were told that 

they did not need to agree on the same theory of liability.

During closing argument, the prosecutor asserted that defendant could be guilty of 

murder based on multiple theories, including as a coconspirator under the natural and 

probable consequences doctrine. The prosecutor admitted to the jury that it was “not 

clear who fired the fatal shot.” Victor was shot twice, and either defendant shot him 

twice, or Montoya shot him twice, or they each shot Victor once. The prosecutor asserted 

that defendant had an intent to kill because he brought a gun, and he was prepared to use 

it. Three witnesses testified that defendant pointed a gun at Victor. According to the 

prosecutor, the evidence supported all three theories of guilt in count 1. Either defendant 

was the direct perpetrator, or he aided and abetted, or defendant was “responsible for the 

natural and probable consequence of Victor’s shooting.” The prosecutor, however, 

informed the jury that defendant could only be guilty of second degree murder if he was 

guilty under the natural and probable consequences doctrine.

During deliberations, the jurors sent a written note to the trial court stating they 

were “unsure” about the legal definition of premeditation and how it “pertains to this 

case.” The jury asked for a further definition. After conferring with the parties, the trial 

court directed the jury to review CALCRIM No. 521. The court stated that it was the 

jury’s role to determine how to apply premeditation. The instruction under CALCRIM 

No. 521 informed the jury that defendant was being prosecuted for first degree murder 

under three theories, including “conspiracy.” 

A legally invalid theory was presented to the jury in count 1 to establish 

premeditated murder. (See People v. Gentile, supra, 10 Cal.5th at p. 846 [neither first 
15.

nor second degree murder may be based on a natural and probable consequences 

theory.].) The instruction given under CALCRIM No. 521 demonstrates that one or more 

jurors may have found defendant guilty of first degree premeditated murder based on a 

theory he conspired to unlawfully assemble and he was vicariously liable under the 

natural and probable consequences doctrine.

When a trial court instructs a jury on multiple theories of guilt and one theory is 

legally incorrect, reversal is required unless the reviewing court can declare beyond a 

reasonable doubt that the jury based its verdict on a legally valid theory. (People v. Chiu, 

supra, 59 Cal.4th at p. 167; see also People v. Guiton (1993) 4 Cal.4th 1116, 1130, [jury 

instruction on an unsupported theory is prejudicial if it was the sole basis for a guilty 

verdict. If the jury based its verdict on a valid ground, or on both a valid and invalid 

ground, there would be no prejudice.].) The People bear the burden to establish that these 

instructional errors were harmless. (People v. Smith (1984) 35 Cal.3d 798, 808; In re 

Loza (2018) 27 Cal.App.5th 797, 805.)

In our prior opinion, we could not declare beyond a reasonable doubt that the jury 

based its guilty verdict in count 1 on a legally valid theory. (People v. Corona, supra,

F075515.) We again reach the same conclusion.10 The jury did not determine that 

defendant personally fired a weapon during Victor’s murder. Instead, in count 1, the jury 

found true that “at least one principal intentionally and personally discharged and 

personally used” a firearm that proximately caused great bodily injury or death under 

section 12022.53, subdivisions (d) and (e)(1). (Italics added.) Moreover, in finding 

10 If the inadequacy of proof is purely factual, then reversal is not required if a 

valid ground for the verdict remains absent an affirmative indication in the record that the 

verdict was based on the inadequate ground. However, if the inadequacy is legal and not 

merely factual, reversal is required “absent a basis in the record to find that the verdict 

was actually based on a valid ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129, 

fn. omitted.)
16.

defendant guilty in count 1, the jury filled out general verdict forms, and it did not 

indicate the basis for finding premeditation and deliberation.

In our prior opinion, we reversed this conviction and modified it to second degree 

murder, but we gave the People the opportunity to accept that reduction or retry the 

premeditation and deliberation allegation. (People v. Corona, supra, F075515.) 

Following remand, both parties assert that our prior disposition in count 1 is still correct. 

We agree.

Based on the instructional error that occurred, we cannot declare beyond a 

reasonable doubt that the jury based the premeditation and deliberation allegation on a 

legally valid theory. It is very possible one or more jurors may have improperly found 

premeditation and deliberation from the natural and probable consequences doctrine. 

However, overwhelming evidence demonstrated defendant’s malice in count 1. He went 

to the party with a loaded gun, and multiple witnesses identified him as Victor’s initial 

attacker. No evidence suggested that Victor was armed, but multiple witnesses saw 

defendant draw his weapon and fire it twice at Victor. There was, however, a second 

shooter and it was unclear who fired the fatal shots. 

Because the instructional error impacted only the degree of the crime, we will 

reduce the conviction to second degree murder. The People shall again have the 

opportunity to retry the premeditation and deliberation allegation.11 (See People v. 

Rivera (2015) 234 Cal.App.4th 1350, 1359.) We remand for further proceedings.

B. An improper legal theory was used to obtain the conviction in count 2 for 

attempted murder

The instructional error discussed above also requires reversal of the conviction in 

count 2. Since our prior opinion issued, attempted murder now cannot be based on the

11 The double jeopardy guarantee imposes no limitation on the power to retry a 

defendant who has succeeded in having his conviction set aside on appeal on grounds 

other than insufficiency of evidence. (People v. Hernandez (2003) 30 Cal.4th 1, 6.)
17.

natural and probable consequences doctrine. (People v. Sanchez, supra, 75 Cal.App.5th 

at p. 196; People v. Montes, supra, 71 Cal.App.5th at p. 1006.) Respondent concedes 

that defendant’s jury was instructed on the natural and probable consequences doctrine in 

count 2 regarding the charge of attempted premeditated murder.

Based on this record, it is impossible to determine under what theory the jury 

convicted defendant in count 2. The prosecutor conceded to the jury during closing 

argument that the evidence did not show that defendant was David’s shooter. The 

prosecutor repeatedly argued that, in part, defendant could be found guilty in count 2 

under the natural and probable consequences doctrine. The prosecutor asserted it was 

reasonably foreseeable that defendant’s actions in conspiring to unlawfully assemble 

could lead to somebody else shooting David, and defendant was guilty in count 2 even if 

he did not intend for the other shooter to fire at David. The jury found it “not true” that 

defendant had personally inflicted great bodily injury upon David in the commission of 

the attempted murder.

Respondent concedes that Senate Bill 775 applies to defendant’s conviction in 

count 2. However, respondent argues that this matter should be remanded with directions 

for the trial court to determine whether defendant is entitled to relief under the amended 

law. We disagree.

Senate Bill 775 makes it abundantly clear that a person convicted of attempted 

murder may challenge the validity of that conviction on direct appeal if the conviction is 

not yet final. (§ 1170.95, subd. (g).) The parties agree, as do we, that defendant benefits 

from Senate Bill 775, and his conviction is not yet final. Consequently, this issue should 

be resolved on direct appeal.

In light of Senate Bill 775, defendant’s conviction in count 2 must be reversed.12 

We cannot declare beyond a reasonable doubt that the jury did not rely on the now 

12 Because we are reversing counts 1 and 2, we need not address defendant’s claim 

that reversal is also required in these counts based on alleged prosecutorial misconduct 
18.

invalid natural and probable consequences doctrine to find defendant guilty of attempted 

premeditated murder. Consequently, we reverse defendant’s sentence and remand for 

further proceedings.13 (See People v. Sanchez, supra, 75 Cal.App.5th at p. 197.) The

People may elect to retry the charge in count 2.14

C. Reversal of count 3 is not warranted

In our prior opinion, we rejected defendant’s claim that his conviction in count 3 

was based on a legally invalid theory. (People v. Corona, supra, F075515.) Our prior 

conclusion has not changed.15 

Shooting at an inhabited dwelling is a general intent crime under section 246. 

(People v. Mendoza (1998) 18 Cal.4th 1114, 1123; People v. White (2014) 230 

Cal.App.4th 305, 316.) “A defendant may be liable for shooting at an inhabited dwelling 

as an aider and abettor.” (People v. White, supra, at p. 317.) Apart from first degree 

premeditated murder, our high court has approved the use of the natural and probable 

consequences doctrine to establish the liability of a coconspirator. Our Supreme Court 

recently noted that, while Senate Bill 1437 eliminated the natural and probable 

consequences doctrine’s applicability to murder, it left that doctrine intact with respect to 

other crimes. (People v. Gentile, supra, 10 Cal.5th at p. 849; see also People v. 

Hardy (1992) 2 Cal.4th 86, 188 [approving a jury instruction that a conspirator is 

during closing argument. In our prior opinion, we found that the claim of prosecutorial 

misconduct was forfeited. (People v. Corona, supra, F075515.) In light of the current 

disposition, that claim is now moot.

13 Because the conviction in count 2 must be reversed, we decline defendant’s 

invitation to remand this matter for resentencing on count 2 for the crime of assault with a 

firearm.

14 The double jeopardy guarantee does not preclude a retrial in this situation. (See 

People v. Hernandez, supra, 30 Cal.4th at p. 6.)

15 In his supplemental brief following remand from the Supreme Court, defendant 

does not address or otherwise challenge our prior decision regarding count 3.
19.

vicariously liable for the unintended acts by coconspirators in furtherance of the 

conspiracy or as the reasonable and natural consequence of the conspiracy].) 

Unlike the convictions in counts 1 and 2, we can declare that the instructional 

error was harmless in count 3 beyond any reasonable doubt. (See Chapman v. California

(1967) 386 U.S. 18, 24.) The evidence overwhelmingly established that either defendant 

and/or the second shooter (likely Montoya) fired at the inhabited dwelling. Either as a 

direct perpetrator, or as an aider and abettor, or because of the natural and probable 

consequences from the conspiracy to unlawfully assemble, the evidence conclusively 

demonstrated defendant’s guilt in count 3. In other words, the guilty verdict rendered in 

count 3 was surely unattributable to the instructional error. (See Sullivan v. Louisiana

(1993) 508 U.S. 275, 279.) Accordingly, prejudice is not present, and reversal of the 

conviction in count 3 is not warranted.

III. The Trial Court Shall Exercise its Sentencing Discretion Under Senate Bill 

No. 620 when Defendant is Resentenced

At the time of defendant’s sentencing in this matter, the trial court was required to 

impose additional prison sentences for the firearm enhancements found true under 

sections 12022.5 and 12022.53. (Former §§ 12022.5, subd. (a), 12022.53, subd. (d).) On 

October 11, 2017, however, the Governor approved Senate Bill No. 620 (Stats. 2017, 

(Stats. 2017, ch. 682) (Senate Bill 620), which amended, in part, sections 12022.5 and 

12022.53. Under the amendments, a trial court now has discretion to strike or dismiss 

these firearm enhancements. (§ 12022.5, subd. (c), § 12022.53, subd. (h).)

The parties agree, as do we, that these amendments apply retroactively to 

defendant because his case is not yet final. (People v. Woods (2018) 19 Cal.App.5th 

1080, 1090, 228 Cal. Rptr. 3d 318.) The parties, however, previously disputed whether a 

remand was appropriate for the court to exercise this discretion. Respondent had asserted 

that a remand would serve no purpose. According to respondent, no reasonable court 

would exercise its discretion to strike defendant’s firearm enhancements in light of his 
20.

criminal conduct in this matter and the court’s comments at sentencing. (See People v. 

Gutierrez (1996) 48 Cal.App.4th 1894, 1896.)

In our prior opinion, we had agreed with respondent that a remand would serve no 

purpose. During sentencing, the trial court expressed grave concern about defendant’s 

criminal conduct in this matter. Moreover, in count 4, the court imposed the maximum 

firearm enhancement possible under section 12022.5, subdivision (a). We concluded that 

the court’s sentencing choice established that it would not have struck or dismissed a 

firearm enhancement. As such, we previously determined it would be an idle act to 

remand this matter for the court to reconsider the firearm enhancements. (People v. 

Corona, supra, F075515.)

However, based on the recent changes in the law, defendant’s sentence has been 

vacated, along with his convictions in counts 1 and 2. Consequently, because part of the 

sentence has been stricken on review, a full resentencing is appropriate so the trial court 

can exercise its sentencing discretion in light of the changed circumstances. (See People 

v. Buycks (2018) 5 Cal.5th 857, 893.) We remand for further proceedings. 

DISPOSITION

Defendant’s sentence is vacated, and this matter is remanded for further 

proceedings. 

The conviction in count 1 for first degree murder is reversed with the following 

directions: If the People do not bring defendant to retrial within 60 days of filing the 

remittitur in the trial court pursuant to section 1382, subdivision (a)(2), or obtain a waiver 

of time by defendant, the trial court shall proceed as if the remittitur constituted a 

modification of the judgment to reflect a conviction of second degree murder in count 1 

and resentence defendant accordingly. 

The conviction in count 2 for attempted premeditated murder is reversed, but the 

People shall have the opportunity to retry defendant. If the People do not bring defendant 

to retrial within 60 days of filing the remittitur in the trial court pursuant to section 1382, 
21.

subdivision (a)(2), or obtain a waiver of time by defendant, the trial court shall resentence 

defendant accordingly. 

In all other respects, defendant’s judgment is affirmed.

POOCHIGIAN, J.

WE CONCUR:

LEVY, Acting P. J.

MEEHAN, J.