People v. Carbajal CA1/1

Filed 12/6/21 P. v. Carbajal CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A161025
v.
ALBERTO HERNANDEZ (Del Norte County
CARBAJAL, Super. Ct. No. CR-PB-19-5041)
Defendant and Appellant.

A riot occurred at Pelican Bay State Prison in May 2017, in which
multiple correctional officers were severely injured. Defendant was convicted
of 16 counts of assault in connection with attacks on eight different officers
during the riot. He challenges his convictions on the ground that the trial
court should have appointed two experts to assist with his defense. He also
contends his convictions must be reversed because (1) there was insufficient
evidence supporting seven of his convictions for assault by a life prisoner by
means of force likely to produce great bodily injury under Penal Code 1
section 4500; (2) defendant’s eighth section 4500 conviction must be reversed
because there was insufficient evidence to support the conviction on the

All further statutory references are to the Penal Code unless
1

otherwise indicated.
natural and probable consequences theory advocated by the prosecutor; (3) all
of defendant’s convictions should be reduced to convictions of riot
(section 405) under the authority of People v. Chiu (2014) 59 Cal.4th 155; and
(4) defendant was improperly convicted of violating both sections 4500 and
4501, subdivision (b) (section 4501(b)) based on the same conduct.
We conclude that the trial court did not abuse its discretion in refusing
to appoint defense experts.2 For reasons we explain below, we determine
insufficient evidence supported seven convictions of section 4500, and one of
defendant’s section 4501(b) convictions must be reversed because he was
convicted of section 4500 on the same grounds. In all other respects, we
affirm the judgment.
I. BACKGROUND
A. The Prison Riot
On the morning of May 24, 2017, two inmates began punching each
other in the upper head and torso on the general population yard at Pelican
Bay State Prison. When the fight began, there were approximately 300
inmates on three adjacent yards. The yards are known as “1 Yard,” “2 Yard,”
and “3 Yard”; the fight was taking place on 3 Yard.
Multiple correctional officers called for the two inmates to “get down.”
All of the inmates went into a prone position except for the two combatants,
who continued fighting. When the combatants disobeyed orders to get down,
a control booth officer fired a hard sponge round from his 40-millimeter

2In a related petition for writ of habeas corpus (case No. A163179),
defendant argues the trial court erred in denying his requests for experts
necessary to his defense, trial counsel provided ineffective assistance, and he
was convicted based on false evidence. We deny the petition today by
separate order.

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launcher striking one of the inmates in the back thigh. Officers fired
oleoresin capsicum pepper spray (O.C. pepper spray or pepper spray)
grenades near the two fighting inmates, and then struck them on the legs,
buttocks, and shoulders with batons while repeating orders to “get down.”
When those efforts failed to stop the fight, officers intervened to pull the two
inmates apart.
As the correctional officers tried to pull the two fighting inmates apart,
somewhere between 20 to 75 inmates got up from the prone position on
1 Yard and started running toward the fight on 3 Yard. Another 25 to 35
inmates on 2 Yard also got up and started running in the same direction
toward the vehicle gate connecting the yards. At this point, officers
attempted to close the vehicle gate. As they were trying to close the gate,
inmates on 3 Yard also jumped up, rushed toward the officers, and began
attacking them.
Inmates began swarming through the gates from the other two yards.
The inmates ignored commands that were given by officers both on the
ground and over the public address system to “get down.” The officers on
3 Yard defended themselves but were overwhelmed by the vastly superior
number of inmates.
Armed officers in observation posts tried to end the riot by firing shots
from the towers. Officers Hendrix and Gonzalez fired warning shots, but the
inmates continued fighting. Officer Hendrix shot an inmate near a
correctional officer who was pinned against the fence by the mob. The inmate
fell to the ground and other inmates left the area. Hendrix did not feel he
could take any more shots, however, because he did not have a clear shot and
did not want to hit an officer.

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 Officers issued a “Code 3” call which required the assistance of all
available officers at the institution. As more staff started to arrive, the
rioting inmates began to get down, prone to the ground. Additional officers
arrived and formed a scrimmage line to put an end to the riot. Medical staff
arrived to assist injured correctional officers and inmates. The inmates were
handcuffed and then removed from the yard.
Eight correctional officers were attacked, including Officer McCully.
All of the correctional officers who were attacked were injured. Five officers
were severely beaten and suffered permanent, disabling injuries. Those five
officers were unable to continue their jobs and had to retire early due to their
injuries.
B. Defendant’s Role in the Riot
Officer McCully was working in “Building 5” on the morning of the riot.
He heard an order to “get down” come over the yard public address system.
As he left the building, McCully heard the “pop” of a blast grenade containing
O.C. powder, and as he came out the door, he saw white powder trace and
two inmates going to the ground fighting.
As the inmates remained locked in their fight, McCully heard an officer
say to pull them apart. McCully was pulling on gloves to assist in
handcuffing and escorting the combatants when he saw “a large majority” of
inmates on the 2 Yard stand up and start running toward them. The inmates
were progressing “like a wave.” McCully heard someone yell, “ ‘Get the
gate,’ ” and he saw officers run to try to close the gate. McCully attempted to
assist with securing the gate, but never got close enough because inmates
started to pile up and pull the gate open. McCully then pulled out his O.C.
pepper spray and tried to spray the face of every inmate coming through the

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gate but it was ineffective, and inmates ran right through it. Events became
a blur for him for a minute.
Officer McCully’s next clear memory was of fighting defendant on the
handball court. Defendant was coming at McCully and had his hands by his
face in fists. He tried to punch McCully with his left hand. McCully had his
O.C. pepper spray in his left hand and his baton in his right. McCully fired
his pepper spray in defendant’s face.3 As defendant tried to punch McCully,
McCully leaned back and swung his baton, aiming for defendant’s left arm.
McCully felt his baton strike defendant but he was not sure exactly where it
struck. At that point, McCully heard someone yell, “ ‘Officer down.’ ”
McCully forgot about defendant and went to assist Officer Hicks who
appeared to be unconscious.
As McCully was trying to figure out how to help Hicks, he saw Sergeant
Mount being swarmed by inmates along the fence separating 2 Yard and 3
Yard. Inmates rushed at McCully, punching him in the head and upper
torso. He tried to use his baton to keep them off of him, but his feet were
kicked out from underneath him and he went to the ground. He got back up
and was able to push his way out of the mass of inmates with his pepper
spray and strength and make his way off the yard with other officers.
McCully was given a medical evaluation, his injuries were photographed for
evidence, and he was then taken to the hospital.
C. Identification of Defendant
The next day, investigators came to McCully’s home to take additional
photographs of his injuries. McCully asked them if they had an unlabeled
photo lineup. They said they did not.

McCully said he didn’t know if the spray actually hit defendant or
3

how much spray came out.

5
 When he returned to work nine weeks later, investigators had put
together a binder with 22 pages of inmate photos without names. McCully
looked through the binder and identified defendant and several other
inmates. The photograph of defendant appeared to be an old photo. McCully
recognized the face, but said the photo was not a good representation of what
defendant looked like on the day of the incident. McCully pointed at the
photo and said, “ ‘I hit him with a baton, but he had a bald head and a
mustache.’ ”
McCully also saw photos of inmates against fences, and he picked
defendant out in one of those photographs. In that photograph, defendant
was bald and had a mustache. At trial, McCully again identified defendant
as the inmate who attacked him on the handball court.
Inmates who participated in the riot were both videotaped and
photographed. The officer who videotaped inmates made notes about where
each inmate was found at the end of the riot and matched them with their
photo in the computer system. She discovered defendant was found in an
area that was considered “out of bounds,” meaning inmates were prohibited
from being there.
Another officer took photos of defendant and an injury to his shoulder.
The injury was a welt about five inches long and a quarter-inch wide that
appeared to be the result of a baton strike on the upper back between the
shoulder and the shoulder blade. Defendant also had red marks on his back
that appeared fresh. Defendant had marks on his pants leg and waistband.
Based on his experience, the officer believed the marks were either blood or
pepper spray. Defendant’s t-shirt was on his left wrist in the photo.4

4McCully could not recall whether defendant was wearing a shirt or
how he was dressed when they fought on the handball court.

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 The defense introduced defendant’s medical records. They show he was
not exposed to pepper spray on the day of the riot.
The parties stipulated that defendant was a life prisoner at the time of
the riot.
D. Charges Against Defendant
On July 27, 2020, the Del Norte County District Attorney filed an
amended information charging defendant with eight counts of assault by a
state prisoner by means of force likely to produce great bodily injury
(§ 4501(b): counts 1–8) against eight different correctional officers, and eight
counts of assault by a life prisoner with force likely to produce great bodily
injury (§ 4500; counts 9–16) against the same eight correctional officers. The
information further alleged that defendant had previously been convicted of
murder (§ 187), a serious or violent felony (§§ 667, subd. (a), 1192.7) and a
strike offense (§ 667, subds. (b)–(i)). Defendant admitted the prior conviction
allegations.
E. Conviction and Sentencing
The jury convicted defendant on all 16 counts. The trial court denied
defendant’s motion to dismiss the prior conviction allegations and sentenced
defendant to a term of 59 years to life, consecutive to the sentence defendant
was already serving. The sentence was comprised of three consecutive terms
of nine years to life on counts 9, 10, and 11, doubled based on the prior strike
offense, plus five years for the prior serious felony enhancement. The court
imposed concurrent terms on the remaining convictions for assault by a life
prisoner (§ 4500) and stayed the sentences pursuant to section 654 on eight
counts of assault by a state prisoner (§ 4501(b)).
II. DISCUSSION
Defendant raises several claims of error.

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A. Defense Experts
Defendant first claims that the trial court violated his statutory and
constitutional rights to prepare a defense and to a fair trial by refusing to
allow him to call experts on corrections and the effects of O.C. pepper spray.
“ ‘An indigent defendant has a statutory and constitutional right to ancillary
services reasonably necessary to prepare a defense. [Citations.] The
defendant has the burden of demonstrating the need for the requested
services. [Citation.] The trial court should view a motion for assistance with
considerable liberality, but it should also order the requested services only
upon a showing they are reasonably necessary.’ ” (People v. Hajek and Vo
(2014) 58 Cal.4th 1144, 1255, abrogated on other grounds by People v. Rangel
(2016) 62 Cal.4th 1192, 1216; Evid. Code, § 730 [trial court may appoint
expert “at any time before or during the trial of an action” when it appears
“expert evidence is or may be required . . . by any party to the action”].) We
review the trial court’s refusal to appoint defense experts for abuse of
discretion. (Hajek and Vo, at p. 1255; People v. Garcia (2016) 5 Cal.App.5th
640, 655.)
1. Daniel Vasquez
a. Additional Background
At a trial setting conference on June 4, 2020, the trial court confirmed
the July 27 trial date and ordered that pretrial motions be filed by July 2 to
be heard on July 9. On July 2, defendant filed an ex parte motion for the
appointment of Daniel Vasquez, a correctional expert, “to advise the defense
on a confidential basis, assist in the investigation of this case and to testify at
trial on the grounds that the appointment is necessary to properly prepare for
the trial in this matter.” Defense counsel asserted Vasquez’s testimony was
“necessary to advise counsel [and] assist in the investigation of the case

8
against . . . the Defendant, including but not limited to testifying in Court
about prison gangs, prison culture, and use of force limitations at Pelican Bay
State Prison.” Defense counsel argued the expert would assist in the
presentation of the defense case and in preparing for effective cross-
examination of the prosecution’s witnesses.
Counsel’s declaration accompanying the motion stated Vasquez was a
former warden of San Quentin prison, was “well versed in prison gang rules
and culture, [California Department of Corrections and Rehabilitation] rules
and expectations regarding correctional officers, and inmate behavior
expectations during riots.” The declaration also stated counsel was prepared
to show defendant’s need for an expert at an in camera hearing if the court
required more detail. Counsel stated Vasquez’s assistance was “essential to a
vigorous and competent preparation of the defense” and that defendant could
not receive “a constitutionally adequate defense” without it.
At the July 9 hearing, the trial court confirmed the July 27 trial date.
Defense counsel mentioned the ex parte motion for appointment of Vasquez.
The trial court responded: “I do have one pending for you. And I can tell you
secretly that I’m going to deny it.” Counsel inquired whether he would have
“an opportunity for an ex-parte or in-chambers conference” on the motion.
The court stated, “I don’t know how we could do that between now and the
27th given [our] schedule[s].” Trial began on July 28 without any further
consideration of Vasquez’s appointment as an expert.
On the fourth day of trial, August 3, defense counsel renewed his
request that Vasquez be appointed as an expert. Counsel stated he needed
an expert to explain how a one-on-one fight should have been handled and
how it would be anticipated that inmates would react. The trial judge
remarked that it “looks like everybody should have just laid down and that

9
would have been the end of it.” The court refused to appoint Vasquez, saying
it did not see how an expert, especially the one proposed based on the matters
set forth in the declaration, was “essential to this case.”
The next day, after ruling on a different motion, the trial court briefly
discussed defendant’s motion for a corrections expert. The judge stated that
although he did not know when defendant “actually made” his motion for an
expert, the judge was not aware of the motion until three days before jury
selection. As a result, the court observed, the motion was “late” which
created “discovery problems.”
b. Analysis
Defendant argues the trial court erred by unreasonably declining to
allow defense counsel to explain the need for a prison expert at an ex parte,
in camera hearing, and contends he should not have been required to reveal
his defense strategy in open court. We need not address this contention,
however, because we conclude even if the trial court erred in refusing to
consider the motion or appoint an expert, the error was harmless under any
standard of review.5 (See People v. Watson (1956) 46 Cal.2d 818; Chapman v.
California (1967) 386 U.S. 18.)
Defendant contends he needed a corrections expert because in order to
be found guilty as either a direct perpetrator or aider and abettor of the riot,
he must have intended to commit, encourage, or facilitate the commission of a
riot. (See People v. Gomez (2018) 6 Cal.5th 243, 279.) If defendant merely
feigned participation in the riot, he would not have had the requisite intent to
be guilty of participating in a riot.

5 We likewise do not consider the Attorney General’s argument that
defendant is precluded from raising this issue on appeal because he argued a
different reason for needing Vasquez’s testimony at trial.

10
 Defendant asserts the testimony at trial supported such a theory
because officers testified that (1) northern Hispanic gang members on the
yard stood up and then got back down, (2) there were a lot of Hispanics on
the yard with bald heads during the riot, and (3) not all inmates who got up
and ran in the direction of the officers had attacked. Defendant contends he
could not prove his defense, however, without expert evidence that southern
Hispanic gang rules required participation in the riot and that southern
Hispanic inmates therefore feigned participation or may have run with other
inmates in order to avoid being trampled or beaten.
Here, the failure to allow expert evidence that inmates might have
feigned participation in order to avoid discipline by the gang was harmless
because the evidence showed that defendant did participate in the riot.
Officer McCully testified he had a clear memory of fighting with defendant.
Defendant approached McCully with his hands up in fists and tried to punch
him in the face. McCully swung his baton at defendant and felt the strike
impact of his baton, but he was not sure where he hit defendant. After the
riot, defendant was found in the area of the prison yard that was “out of
bounds,” meaning he was in an area where inmates were not allowed.
Photographs of defendant from just after the riot show defendant had a welt
on his back that was about five inches long and a quarter-inch wide that
appeared to be caused by a baton strike. Defendant also had red marks on
his back that appeared fresh. Defendant speculates his injuries could have
been caused when he dropped to the ground with his shirt off or by shrapnel
from fired bullets, but he points to no evidence supporting such a theory.6 On

6Defendant notes Officer Contreras, who photographed injuries on
defendant after the riot, “speculated” that defendant’s injuries could have
been inflicted by shrapnel, but he disavowed any expertise on the subject.

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this record, we conclude the exclusion of expert evidence that inmates may
feign participation in a riot to satisfy their gang obligations was harmless
beyond a reasonable doubt because the evidence showed defendant was an
active participant in the riot.
2. Dr. Allen
a. Additional Background
During the prosecution’s direct examination of Christopher Corpstein,
a correctional sergeant, defense counsel requested a bench conference.
Corpstein had just testified that inmates occasionally have very little
reaction to O.C. pepper spray. Whether the spray has an effect on an inmate
can depend on a variety of factors, such as wind direction and the part of the
inmate’s body that is sprayed. He also testified that an inmate can
decontaminate from O.C. pepper spray with “fresh air,” but an objection to
that testimony was sustained as leading.
During the bench conference, defense counsel told the court he needed
to know whether he was going to be able to have a medical expert testify on
O.C. pepper spray, because it was “a crucial part of my defense whether my
client was suffering from the effects of O.C.” Defense counsel explained
McCully had testified that he sprayed defendant in the face with O.C. pepper
spray, but if it was shown defendant was not sprayed with O.C. pepper spray,
it would “eliminate his identification” of defendant as the inmate who
assaulted him. Counsel said an expert could make that determination from a
photograph.

But “ ‘[a] reasonable inference . . . “may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]
. . . A finding of fact must be an inference drawn from evidence rather than
. . . a mere speculation as to probabilities without evidence.” ’ ” (People v.
Davis (2013) 57 Cal.4th 353, 360.)

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 The prosecutor objected to the late disclosure and argued if the defense
called Dr. Allen as a witness, the prosecution would be “calling some other
officers who are more expert in O.C.” The court concluded the conference by
saying, “For right now, just keep examining . . . the witnesses.” After
Corpstein’s testimony, the court invited the parties to make an offer of proof
as to why the defense needed expert testimony.
Defense counsel explained he needed Dr. Allen’s testimony because the
medical records nurse who treated defendant was no longer with the prison
and was unavailable to put on the medical record indicating defendant was
not sprayed. Defense counsel argued that the testimony was crucial to the
argument that his client was misidentified. The prosecution again objected
to the late disclosure. When the trial court asked defense counsel why he did
not propose Dr. Allen’s testimony sooner, counsel responded that it was a
question of his “diligence.” He had previously failed to see the medical record
stating defendant was not sprayed among several thousand discovery
documents.
The trial court allowed the defense to enter the medical record as a
business record. Defense counsel said, “If I could submit that, that would be
great.” The trial court then stated, “That takes care of that problem.”
The trial court ruled it was not going to allow defendant to call Dr.
Allen “because that just defeats the whole discovery statute.” The court also
stated that it was excluding Dr. Allen’s testimony under Evidence Code
section 352. The court mentioned it would take time for the doctor to prepare
a report and for the prosecutor “to depose him.” The court also stated that
the prosecution theory did not require eyewitness identification because
defendant could be guilty of the assaults under the natural and probable
consequences doctrine by aiding and abetting the riot.

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 b. Analysis
Defendant argues he established the need for appointment of Dr. Allen
and the trial court’s refusal to appoint him was an abuse of discretion.
Defendant contends “[t]rial counsel’s mention of the officers’ testimony that
some people are not affected by O.C. suggests that Dr. Allen would have
testified that is not true.”7 If defendant were able to establish that he was
not sprayed with O.C., that would be substantial proof McCully had
misidentified him. Accordingly, defendant argues, Dr. Allen’s testimony was
critical to his defense.
We are not persuaded. First, defendant did not argue to the court or
submit a report from Dr. Allen showing he would testify that the testimony
that some people are not affected by O.C. pepper spray was false. Moreover,
defendant’s proposed testimony from Dr. Allen that defendant was not
sprayed with O.C. pepper spray would have been cumulative in light of his
medical records showing he was not sprayed and likely would have required
substantial additional time for both Dr. Allen’s testimony and rebuttal
witnesses. On this record, we cannot say the trial court abused its discretion.
In any event, any error in refusing to appoint Dr. Allen was harmless.
The trial court allowed defendant’s medical records into evidence indicating
that he had no O.C. pepper spray exposure. In closing, defense counsel
specifically argued to the jury that the nurse had recorded defendant’s lack of
exposure to O.C. pepper spray immediately following the riot, meaning that

7 In his opening brief on appeal, defendant notes that in addition to
Officer Corpstein, McCully, two other correctional officers, and a correctional
counselor specialist gave similar testimony.

14
“Mr. Carbajal was not sprayed. And he never confronted Mr. McCully.” 8 The
jury nonetheless rejected defendant’s version of events. McCully positively
identified defendant in a binder containing 22 pages of unnamed inmate
photographs, among photographs of inmates taken immediately after the
riot, as well as in court. Defendant also had fresh injuries on his back
consistent with McCully’s testimony that his baton struck defendant. In light
of the strong evidence that defendant participated in the riot by assaulting
McCully, defendant was not prejudiced by the trial court’s refusal to allow
Dr. Allen to testify.
c. Ineffective Assistance of Counsel
Defendant also advances an argument that he was denied effective
assistance of counsel when his trial attorney failed to timely disclose Dr.
Allen to the prosecution as an expert witness.
To succeed on an ineffective assistance of counsel claim, a defendant
must show (1) counsel provided representation that fell below an objective
standard of reasonableness under prevailing professional norms and
(2) prejudice resulted from counsel’s deficient performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 691–692; People v. Jennings (1991)
53 Cal.3d 334, 357.) A defendant shows prejudice when there is a reasonable
probability that, but for counsel’s deficient representation, the result of the
proceeding would have been different. (Jennings, at p. 357.) “ ‘A reasonable

8 Defendant also argues the “jury would have known that the nurse
who filled out the checklist likely did so based upon what appellant had told
her,” and the jury would have found a physician’s testimony more convincing
than a self-serving statement from defendant. Defendant offers no basis for
his assumption that the nurse recorded defendant’s lack of O.C. exposure
based solely on a statement from defendant.

15
probability is a probability sufficient to undermine confidence in the
outcome.’ ” (Ibid.; People v. Avena (1996) 13 Cal.4th 394, 418.)
Even assuming defense counsel was ineffective for failing to disclose
Dr. Allen as an expert witness, defendant was not prejudiced. As explained
above, the trial court admitted defendant’s medical records which indicated
that no O.C. pepper spray had been used. On this record, expert evidence
about whether it appeared from photographs that defendant had been
sprayed with O.C. pepper spray would have been cumulative and given the
strong evidence of defendant’s assault on McCully and participation in the
riot, he suffered no prejudice.
B. Sufficiency of the Evidence
Defendant next contends the evidence is insufficient to sustain all but
one of his convictions for violation of section 4500. The Attorney General
concedes this point. We agree.
To find an individual guilty of violating section 4500, the jury must find
that person has been sentenced to a maximum term of life in state prison in
California. (§ 4500.) It is undisputed that defendant was a life prisoner at
the time of the offense and McCully testified defendant assaulted him.
Therefore, the evidence was sufficient to support defendant’s conviction on
count 15 for assault by a life prisoner on McCully based on the theory that
defendant committed that offense as a direct perpetrator.
However, there was no evidence that defendant assaulted any other
officer. As to the other seven officers, the prosecution argued defendant was
guilty of assault by a life prisoner under the natural and probable
consequences doctrine based on the theory defendant was guilty of the target
crime of participating in a riot and the assaults on other officers were a
natural and probable consequence of that act. The prosecutor argued to the

16
jury that she must prove that “the natural and probable consequence of that
riot was that some assaults would occur by a life prisoner on staff that day.”
(Italics added.) The jury was instructed under the natural and probable
consequences doctrine with CALCRIM No. 403 that the prosecution must
prove that “[d]uring the commission of riot a coparticipant in that riot
committed the crime of . . . Assault by Life prisoner.” 9 (Italics added.)
No evidence was presented that any of the other inmates who
committed the assaults against officers other than McCully were serving a
life sentence at the time of the riot. Accordingly, the evidence was
insufficient to support defendant’s convictions on counts 9 to 14 and 16, and
those convictions must be reversed.
C. Count 15—Assault by Life Prisoner As to Officer McCully
Although defendant concedes there is sufficient evidence to support
defendant’s conviction on count 15 based on evidence that he assaulted
McCully, defendant contends we must nonetheless reverse his conviction on
that count because that was not the prosecution’s theory of the case in the
trial court. Rather, defendant argues, the prosecution repeatedly told the
jury defendant was guilty because he aided and abetted a riot and the
assaults which took place were a natural and probable consequence of that
act.
As defendant acknowledges, generally evidence is sufficient to support
a criminal conviction when it would enable a rational trier of fact to find that
the essential elements of the crime have been proven beyond a reasonable
doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.) A jury is fully
equipped to determine when proof is factually inadequate. Thus, reversal is

9 Defendant does not raise any challenges to the jury instructions given
at trial.

17
not ordinarily required when the jury has been presented with two theories of
guilt and only one of those theories has adequate factual support. (Griffin v.
United States (1991) 502 U.S. 46, 59–60; People v. Guiton (1993) 4 Cal.4th
1116, 1129.)
However, defendant argues, when the record shows that the jury did in
fact rely on the unsupported factual theory of conviction, reversal is required.
(People v. Guiton, supra, 4 Cal.4th at p. 1129.) In Guiton, our Supreme Court
offered a hypothetical example of prejudice from an invalid factual theory
where “the district attorney stressed only the invalid ground in the jury
argument, and the jury asked the court questions during deliberations
directed solely to the invalid ground.” (Ibid.) In such a case, the court noted,
“we might well find prejudice. The prejudice would not be assumed, but
affirmatively demonstrated.” (Ibid.) Defendant argues that was the case
here because in her argument to the jury, the prosecutor stressed only the
theory that defendant aided and abetted the riot.
We reject defendant’s argument. First, the record does not reveal that
the jury asked any questions, let alone only questions directed solely to the
invalid factual ground. More importantly, the prosecution did not rely
exclusively on the invalid factual theory in closing argument. While it is true
the district attorney argued the aiding and abetting theory of liability as to
all counts, it was not the only theory argued. In her closing statement, the
prosecutor said, “McCully was . . . assaulted with force likely to cause GBI
[(great bodily injury)]. And this is where I think you can find the defendant
guilty directly of that because he assaulted McCully. He ran at him. He
swung at him. And that swing was likely to cause GBI to him. That fist to the
head would have caused GBI. It would have continued. They could have
gone down on the ground. It’s force likely to cause GBI.” (Italics added.)

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Throughout her closing statement, the prosecutor repeatedly argued that
defendant assaulted McCully. The parties stipulated that defendant was a
life prisoner. The jury had all of the evidence it needed to convict defendant
of assault of McCully by a life prisoner and the prosecution argued the theory
he directly assaulted McCully to the jury. Because the record does not reveal
that the jury found defendant guilty of assaulting McCully solely on the
invalid theory that he aided and abetted other life prisoners, we affirm his
conviction on count 15.
D. People v. Chiu
Defendant next contends that all of his convictions should be reduced to
convictions of riot (§ 405) under the rationale of People v. Chiu, supra,
59 Cal.4th 155 (Chiu), superseded by statute on other grounds as stated in
People v. Lewis (2021) 11 Cal.5th 952, 959, footnote 3. In Chiu, the defendant
was found guilty of first degree murder as an aider and abettor. The jury was
instructed on two alternative theories: that the defendant directly aided and
abetted the murder, or that he aided and abetted either an assault or
disturbing the peace, the natural and probable consequence of which was
murder. (Chiu, at p. 158.) Our Supreme Court held a defendant may not be
convicted of first degree murder under the natural and probable
consequences doctrine. (Id. at pp. 158–159.)
Defendant contends the rationale of Chiu applies here and argues the
connection between the culpability of a defendant who aids and abets a riot is
too attenuated to impose aider and abettor liability under the natural and
probable consequences doctrine for assault by a state prisoner (§ 4501(b)) or
assault by a life prisoner (§ 4500). Further, defendant argues, the offense of
assault by a life prisoner under section 4500 requires malice aforethought.
Because that requires either an intent to kill or a conscious disregard for life,

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defendant argues it is a uniquely subjective and personal mental state that
an aider and abettor of a riot does not necessarily share with the direct
perpetrator of an assault by a state or life prisoner. Finally, defendant
contends that the punishment for assault crimes is not commensurate with
an aider and abettor’s liability, noting that the maximum punishment for
participation in a riot is one year in county jail and a $1,000 fine (§ 405),
while the punishment for assault by a state prisoner by means of force likely
to produce great bodily injury is imprisonment in state prison for two, four, or
six years, to be served consecutively (§ 4501(b)), and the punishment for
assault by a life prisoner by means of force likely to produce great bodily
injury where the victim does not die within a year and one day is nine years
to life (§ 4500). The disparity in these punishments suggests that the
culpability of one who participates in a riot is not commensurate with the
culpability of one who actually commits such an assault.
As an initial matter, we need not consider this argument with respect
to defendant’s section 4500 convictions, because we have already determined
that the seven convictions based on the natural and probable consequences
doctrine must be reversed for insufficient evidence, and his conviction on
count 15 can be upheld on evidence he directly assaulted McCully. As to
counts 1 through 8, we reject defendant’s argument that Chiu supports
reduction of his convictions to riot.
In Chiu, our Supreme Court limited its holding to the issues
surrounding premeditated first degree murder. (Chiu, supra, 59 Cal.4th at
pp. 158–159, 166–167.) Defendant cites no authority applying Chiu to
offenses other than first degree murder. Indeed, in People v. Flores (2016)
2 Cal.App.5th 855, 869, the appellate court rejected the extension of Chiu to
limit liability for torture under the natural and probable consequences

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doctrine. The Flores court explained that “the crime of torture is akin to the
crime of second degree murder and imposes punishment when the
perpetrator causes a harm and has a specific mental state. Moreover, torture
is not divided into degrees in which a uniquely subjective or personal intent
element elevates the punishment above that imposed for a lesser form of
torture. Finally, the public policy concerns discussed in Chiu are satisfied if
Flores is held culpable (as an aider and abettor for [the codefendant’s]
conduct under the natural and probable consequences doctrine, because he
aided and abetted the target offense of felony child abuse and facilitated
escalation of that conduct into the nontarget offense.” (Flores, at p. 870.)
Here, the crime of assault by a state prisoner imposes punishment
when the perpetrator commits an assault with force likely to produce great
bodily injury. Assault by a state prisoner under section 4501(b) is not divided
into degrees with a uniquely subjective or personal intent element that
elevates the punishment above that imposed for a lesser form of assault.
Moreover, holding defendant liable as an aider and abettor for a principal’s
conduct under the natural and probable consequences doctrine is appropriate
because it was reasonably foreseeable that defendant’s participation in the
riot would result in the assaults by other prisoners. (See People v. Smith
(2014) 60 Cal.4th 603, 611 [liability of an aider and abettor is imposed under
the natural and probable consequences doctrine if “ ‘ “ ‘a reasonable person in
the defendant’s position would have or should have known that the charged
offense was a reasonably foreseeable consequence of the act aided and
abetted’ ” ’ ”].) Accordingly, we reject defendant’s invitation to extend the
rationale of Chiu to invalidate his convictions for assault by a state prisoner.

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E. Prohibition on Multiple Convictions
Defendant asserts he was improperly convicted of both assault by a life
prisoner under section 4500 and assault by a state prisoner under section
4501(b) for the same conduct against the same victims. He argues
(1) because section 4501(b) is a lesser included offense of section 4500, his
convictions under both statutes violated the rule prohibiting multiple
convictions for necessarily included offenses; and (2) dual convictions were
prohibited by the rule set forth in In re Williamson (1954) 43 Cal.2d 651
(Williamson) that if a general statute covers the same conduct as a special
statute, the court infers the Legislature intended conduct to be prosecuted
exclusively under the special statute.
Regarding count 15 (assault by a life prisoner on McCully), the
Attorney General appropriately concedes that defendant cannot be convicted
of both sections 4500 and 4501(b). As explained above, defendant properly
was convicted of section 4500 based on a theory he directly assaulted
McCully, and it is undisputed he was serving a life sentence at the time of
the assault. Section 4501(b) provides, in pertinent part, “Except as provided
in Section 4500, every person confined in the state prison of this state who
commits an assault upon the person of another by any means of force likely to
produce great bodily injury shall be guilty of a felony . . . .” (Italics added.)
Because the express language of the statute provides section 4501(b) applies
except where section 4500 applies, and defendant was properly convicted of
assaulting McCully under section 4500, section 4501(b) cannot apply by its
own terms.
As to the assault counts regarding the seven officers other than
McCully, we have already determined defendant’s section 4500 convictions
(counts 9 to 14 and 16) are invalid for insufficient evidence. Defendant could

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not be convicted of violations of section 4500 as to officers other than McCully
because he did not directly assault any of them, and under the prosecution’s
natural and probable consequences theory, no evidence was presented that
any of the other prisoners who committed assaults were serving a life
sentence. Because these section 4500 convictions cannot stand, we need not
consider whether a violation of section 4501(b) is a lesser included offense of
section 4500 or whether defendant’s section 4501(b) convictions are precluded
by the rule prohibiting multiple convictions for necessarily included offenses.
Defendant also contends that dual convictions for violations of
sections 4500 and 4501(b) are barred by the “Williamson rule” that “if a
general statute includes the same conduct as a special statute, the court
infers that the Legislature intended that conduct to be prosecuted exclusively
under the special statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86;
Williamson, supra, 43 Cal.2d at p. 654.) Because we have already
determined defendant’s section 4500 convictions for assault on officers other
than McCully cannot stand, however, we need not consider the argument
that the section 4501 convictions are barred because section 4500 is the more
specific statute applicable to this case.
In sum, because we have concluded defendant’s conviction for
section 4501(b) against McCully and his seven convictions of section 4500
against the other officers must be reversed, there are no dual convictions for
the same conduct.
III. DISPOSITION
The judgment is reversed as to counts 9–14 and 16. The matter is
remanded to the trial court for resentencing. In all other respects, the
judgment is affirmed.

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 MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A161025
People v. Carbajal

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