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, B309046
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA456643-01)
v.
GABRIEL BALDERAS,
Defendant and Appellant.
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.
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.
2
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.
3
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
4
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.
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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.)
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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
7
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.
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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
9
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
10
(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.
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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.
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