People v. Cerda CA2/3

Filed 7/5/22 P. v. Cerda CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
e 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B232572

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA041397)
v.

PETER CERDA et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of Los
Angeles County, Hayden A. Zacky, Judge. Reversed in part with
directions; affirmed in part.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant Peter Cerda.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant Kyle Johnson.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

In 2011, Peter Cerda and Kyle Johnson were convicted of
one count of murder and 23 counts of attempted premeditated
murder with gang and firearm enhancements. They have since
been pursuing their appellate remedies. This matter, which
remains on direct appeal, is on remand from our California
Supreme Court, which has directed us to vacate a prior decision
we had issued and to reconsider the cause in light of recently-
enacted Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill
775). We do so, and we also consider Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333), which was passed
while this appeal was pending. In view of those new laws, we
reverse Johnson’s judgment and reverse in part Cerda’s judgment
with directions to the trial court to give the People the
opportunity to retry them.
BACKGROUND
I. Prosecution evidence1
Two shootings occurred on the evening of February 8, 2008,
the first at Katrina Place and the second at Morning Circle, both
in Palmdale.

1 Our summary of the facts underlying the crimes is largely
as stated in our vacated 2020 opinion.

2
 A. The Katrina Place shooting (counts 1–14)
On February 8, 2008, 14-year-old Robert E.2 was at his
house on Katrina Place. He was with his mother, Luz E., his
sisters, Mayra E. and Christina E., and his brothers, including
12-year-old Francisco E. They were throwing a party at the
house.
Later in the evening, Robert E. heard gunshots while he
was in the garage with Ricardo R., his sister’s friend. Robert E.
heard something hit an area immediately next to him. Upon
hearing the gunshots, he ducked and crawled into the house. He
heard about 10 shots rapidly fire. Ricardo R. heard about 15
shots. The garage door was closed at the time.
Francisco E. was sitting at a dining room table with other
family members and friends, including Gerardo Salazar,
Mayra E., Stephanie R., Adriana R., Denise F., and Liz S.
Windows to the dining room were located between the front door
of the house and the garage. The dining room was on the first
floor. Francisco E. heard more than 10 gunshots fired.
Adriana R. was in the dining room, sitting next to Salazar.
She heard about 18 shots ricocheting off the walls. When she
heard the shots, she threw Stephanie R., who was 13- or 14-
years-old, to the ground. A foreign object hit Adriana R.’s eye,
causing her to bleed. Glass hit the back of Mayra E.’s neck. She
was sitting to the left of Salazar.

2 To protect the victims’ personal privacy interests, other
than Gerardo Salazar who was killed, we refer to each by first
name and last initial. (Cal. Rules of Court, rule 8.90(b)(4).)

3
 After shots ceased, Francisco E. could see holes in the
dining room wall and curtain. Salazar was on the floor, bleeding,
and he died from a gunshot to the head.
Luz E. and her husband, Sergio H., were in a bedroom
when she heard about 20 gunshots. Christina E. was in another
bedroom with her boyfriend, Daniel D. Four-year-old Aliza V.
and nine-month-old Denise R. were in the master bedroom. Each
of these bedrooms was on the second floor.
When the shots were fired, Daniel D. looked out a window
and saw muzzle flashes from a large pickup truck. The truck
remained stationary when the shots were fired. Daniel D. saw
the shooter in the back of the truck, leaning out and firing the
gun.
After the shooting, Luz E. saw bullet holes in the front of
the house. Ricardo R. saw a hole in the garage door. Robert E.
saw a hole in a television, located in the back of the garage, and
one in a refrigerator.
B. The Morning Circle shooting (counts 15–24)
About 30 minutes after the Katrina Place shooting,
gunshots woke Vicente V., who was at his house on Morning
Circle. Twelve persons lived there, including members of his
immediate family and his brother’s family.
Vicente V.’s house had two floors. On the night of the
shooting, he and his wife, Maria, were in their bedroom located
immediately on top of the garage conversion. Their 13- and 7-
year-old sons, Gerardo and Esteban, slept in a bedroom above
their parents’ bedroom. Their older son, Vince V., Jr., was
sleeping downstairs. Their 15-year-old daughter, Cassandra, was
sleeping in the family room. Their 16-year-old daughter,
Patricia, was sleeping in another bedroom. Vicente V.’s brother,

4
Victor, and his wife, Veronica, slept in the master bedroom with
their two-year-old daughter, Naomi, and four-year-old son,
Alexander. Vicente V.’s 11-year-old nephew, Victor, Jr., and 10-
year-old niece, Veronica, were sleeping in a bedroom on the
second floor, above the garage.
After the shooting, Vicente V. went outside and saw six
damaged areas. Two holes were above his front door. Another
hole was in a stone facade to the right of the front door. There
were also holes above and through a large window above the
front door. The side of the garage, near the front entry, sustained
a hole or additional damage. There was also damage to a fence
post. Bullets struck multiple areas of the interior, including a
staircase leading to an upstairs bedroom and the master
bedroom.
Vicente V. denied being a member of the Val Verde Park
gang. But he stated that Vince V., Jr., was a member.
C. Forensic evidence
Robert Keil, a criminalist, examined the house on Katrina
Place after the shooting. Keil discovered 16 bullet holes on the
exterior of the house, including one on the garage, one on the
front door frame, and several around and through the dining
room window. One bullet penetrated the garage door and a
television inside of the garage before striking the back wall of the
garage. Other bullets penetrated the exterior of the house and
struck other areas inside, including the interior back wall of the
dining room, a kitchen cabinet, and the entry to the kitchen. One
bullet had blood, human tissue, and bone residue on it. This
bullet went through the dining room window, penetrated
Salazar’s head, and struck the corner of the room.

5
 Other bullets penetrated the exterior on the second story of
the house, including its exterior wall and tiled roof. One of these
bullets first penetrated two interior walls in an upstairs bedroom
and a sliding door, before striking another wall. Walls by the
upstairs staircase and other bedrooms were also struck. Other
shots penetrated a bedroom wall and struck a hallway wall. Keil
also found a bullet fragment in the master bathroom, which
traveled across the upstairs hallway and through the master
bedroom.
Sixteen spent casings were located on the street outside the
Katrina Place house. The casings were for 7.62 by 39-millimeter
rounds. Typically, an AK-style rifle uses this size of ammunition.
Keil explained that an AK-style rifle is a semiautomatic assault
weapon commonly used by military forces. Projectiles from these
rifles travel at up to four times the velocity of a handgun, such as
those using nine-millimeter ammunition. They have the
potential to penetrate substantial barriers, including car doors
and exterior walls of residences, as well as multiple additional
walls. By contrast, a nine-millimeter bullet would not have the
power to penetrate an exterior wall.
Keil determined that by the way the casings were grouped
together, 11 shots were fired from one area in front of the Katrina
Place house, and five shots were fired from another area about 15
feet away. The two groupings of casings were not consistent with
shooting all 16 shots in rapid succession. Ten bullet fragments
were discovered in the house. Based on the caliber, rifling
characteristics, and bullet type, these fragments were consistent
with the casings found in the street.
Keil also examined four additional casings and four live
rounds which were collected in front of the Morning Circle house.

6
They matched the casings from the Katrina Place shooting. The
casings were all fired from the same rifle.
D. Pedro A.’s statements3
The prosecutor called Pedro A. as a witness. Pedro A. was
a member of the Evil Klan gang and was incarcerated for a gang-
related crime. Pedro A. believed that he would be in protective
custody or get killed if he assisted the district attorney’s office or
the police, or otherwise acted as a snitch.
Before calling Pedro A. as a witness, the prosecutor and Los
Angeles County Sheriff’s Detective Donna Cheek spoke with him,
although Pedro A. claimed at trial not to remember or denied
making any statements to them. He also claimed not to
remember or denied making any statements to Los Angeles
County Sheriff’s Detective Howard Cooper, who, along with
Detective Cheek, investigated the Katrina Place and Morning
Circle shootings.
Detective Cheek recounted the statements Pedro A. made
before his testimony. During the conversation, she and the
prosecutor reviewed Pedro A.’s 2008 statement to Detective
Cooper. Detective Cooper’s recorded 2008 interview with Pedro
A. was played for the juries.4

3 Personal privacy interests support not identifying Pedro A.
by his full name. (Cal. Rules of Court, rule 8.90(b)(10).)
4 Cerda and Johnson were jointly tried, but each had his own
jury.

7
 On February 8, 2008, Pedro A. was at a party at a house of
a person named Jorge.5 Pedro A. was with Cerda, Johnson, and
their friend, Saul Trujillo.6 Pedro A. left the party for a short
time. When he returned, he learned that Cerda, Johnson, and
Trujillo had gone to another party on Katrina Place. Cerda and
Trujillo returned and told Pedro A. that 18th Street gang
members had beaten up Johnson. When Johnson returned from
the Katrina Place party, Pedro A. saw that his lip was bleeding,
and he was upset. They made plans to retaliate against the
persons who beat up Johnson. They left the party and Cerda
obtained an AK-47 from his house. Pedro A. described the AK-47
as a long black rifle with a wooden stock and a “banana clip”
magazine. Cerda, Johnson, and Trujillo got into a Ford F-150
driven by Jose Casillas.7 Cerda was in the front passenger seat;
Trujillo was behind Cerda; and Johnson was behind the driver.
They went to the party where Johnson had been beaten up.
Pedro A. did not join them. Several minutes later, Pedro A.
heard gunshots.
A couple of days after the shooting, Johnson told Pedro A.
that they drove to the Katrina Place house. They drove around
the block once. Johnson was lying down in the truck bed with the

5 His name is spelled two ways in the record, “George” and
“Jorge.” We use Jorge.
6 Pedro A. referred to Cerda, Johnson, and Trujillo by their
nicknames, which were Snaps, Casper, and Dreamer,
respectively.
7 Casillas was charged and tried separately from Cerda and
Johnson. Pedro A. referred to him by his nickname, Puppet.

8
rifle. When they stopped in front of the house again, Johnson sat
up and fired into the house. Johnson also told Pedro A. that
Cerda shot up a house belonging to someone named Tank from
the Val Verde Park gang which was “beefing” with their gang.
E. Party at Jorge’s house
Fifteen-year-old Erika V. and her sister, Yasmine, attended
the party at Jorge’s house. The Katrina Place house was about a
block from Jorge’s house. At about 11:00 p.m. to 12:00 a.m.,
Casillas drove Erika V. and Yasmine home in a dark green
pickup truck. She knew Casillas as “Puppet.” At the party,
Johnson was introduced to Erika V. as “Casper.” As Erika V. was
going home, she saw Johnson coming from the direction of the
Katrina Place house. He was staggering as if drunk.
F. Cerda’s jailhouse phone calls
Cerda made two phone calls while in jail. The first call was
to his parents. His mother stated, “They said they were gonna let
you go today.” Cerda responded, “No, no, no. I’m not[,] mom. I’m
gonna be here for a long time.” Cerda then told his father,
“Listen to me[,] they’re not gonna release me.” Cerda explained,
“I’m gonna be in here because I was involved in a murder. My
friend shot someone and killed ‘em. And I shot at a house but I
didn’t kill nobody, but my friend shot and killed someone. I shot
a house but I didn’t kill nobody.”
In the second call, Cerda spoke to a female named Vanessa
and her father, admitting that he was involved in a murder.

9
 G. Johnson’s police interview
Detective Cooper, along with Los Angeles County Sheriff’s
Detective Mitch Robison, interviewed Johnson. The interview
was recorded and played for Johnson’s jury.
Johnson initially denied involvement in the shootings.
Johnson explained that he was at a party and hit up a person and
argued with him. Johnson was drunk. Cerda and Trujillo told
him to calm down and that they would take care of it. Johnson
claimed not to know what Cerda and Trujillo were going to do.
Johnson left the party.
Detective Robison acknowledged that Johnson was scared
but encouraged him to “man up.” Detective Cooper asked
Johnson if he meant to kill somebody or only scare them.
Johnson stated that he intended only to fight. Johnson’s friends
told him, “We’re going to bust a mission.” Johnson responded
that he was not going. Johnson continued to deny that he went
with them.
The detectives informed Johnson that his “homeboy” told
them that he “busted up” the other house. Johnson stated that
Cerda obtained a gun and asked him if he wanted to go. Cerda
explained to Johnson that he should go with them because he
was joining the gang. Johnson admitted to accompanying them
in a black Ford F-150. However, he stated that Cerda was in the
bed of the truck and fired shots when they reached the house. He
further stated that Cerda also shot at the other house.
When Johnson continued to deny shooting at the first
house, the detectives repeated that Johnson’s “homeboys” said he
committed the shooting.
When Detective Robison explained the importance of telling
the truth, Johnson finally admitted to firing the gun. Johnson

10
stated that he did not mean to do anything wrong because he was
drunk. He admitted to shooting at the “18th Street” house and
confirmed that Cerda shot at the “Val Verde” house. He further
stated that he accompanied Cerda to get his gun, which he saw
Cerda load. Johnson was instructed to start shooting when they
stopped driving and that he would have to shoot because he was
joining a gang. He admitted again to the shooting and confirmed
that he fired approximately 15-to-16 times from the bed of the
truck.
After Johnson shot at the first house, he switched places
with Cerda, who went to the bed of the truck. Cerda then fired
shots at the “Val Verde” house.
H. Gang evidence
Los Angeles County Sheriff’s Detective Robert Gillis
investigated gangs in the Antelope Valley. In Palmdale in 2008,
the Locos Marijuanos gang, or LMS, consisted of 10 members.
During that time, the primary activities of LMS included
vandalism, vehicle theft, carrying firearms, and shooting.
Detective Gillis opined that in 2008, Johnson and Cerda were
LMS gang members, based on their prior admissions to
membership and associations with other members. Detective
Gillis also spoke to Casillas, who admitted his membership in the
LMS gang.
In 2008, a rivalry existed between the LMS gang and a
gang called Val Verde Park, or VVP. LMS was allied with
another gang called Lancas. Vicente V. was a founding member
of the Val Verde Park gang. His son, Vince V., Jr., was also a
member. In 2008, Lancas members shot at Val Verde Park
members around the corner from Vicente V.’s home.

11
 The 18th Street gang is one of the largest Latino gangs in
Southern California. There were 18th Street gang members in
the Antelope Valley. However, Detective Gillis was not aware of
any rivalries between the 18th Street gang and LMS.
Detective Gillis discussed multiple facets of gang culture,
including initiation into and loyalty to the gang, and the
importance of respect. Gang members were required to back up
their fellow gang members. He also discussed the significance of
retaliation when gang members beat up a rival. In the detective’s
experience, the beaten gang member would retaliate with greater
violence. Failure to retaliate would negatively impact the
reputations of the beaten gang member and his or her gang,
making the gang appear weak and subjecting it to attacks by the
rival gang.
When asked to answer a hypothetical question derived
from evidence of the Katrina Place shooting, Detective Gillis
opined that the crime was committed for the benefit of the gang
whose members committed the shooting. The retaliatory
shooting intimidated and created fear in the community. He
explained the significance of using an AK-47 assault rifle. Its
sole purpose was to kill and was capable of penetrating multiple
walls. Because of the AK-47’s high-powered capability, the
shooting exceeded retaliations that would normally occur. It was
retaliation “with an exclamation point on it.”
When the prosecutor asked a hypothetical question
mirroring the shooting of the Morning Circle house, Detective
Gillis similarly opined that the crime benefited the gang. He
stated the second shooting would intimidate the community.
Persons in the community would hear that the perpetrators were
willing to commit two shootings against two separate gangs. The

12
second shooting would also show that the gang members did not
fear apprehension. Detective Gillis explained that they would
have boldly committed the second shooting when law
enforcement would be nearby investigating the first shooting,
which had occurred only a short time before.
Detective Gillis stated that it was also common for multiple
gang members to participate in drive-by shootings. Each gang
member would assume a role, consisting of the driver, the
shooter, and lookouts who would alert the others to the presence
of law enforcement.
The detective also discussed the influence of the Mexican
Mafia over Latino street gangs in Southern California. The
Mexican Mafia prohibited gang members from shooting at
children. It also required gang members to get out of their cars
and walk up to their victims before shooting to avoid injuring
innocent persons. Violating these rules could result in
punishment by death from the shooter’s own gang or a rival gang.
However, gang members did not always follow these rules. Gillis
also clarified that the trend has returned to drive-by shootings.
II. Defense evidence
Johnson testified on his own behalf. He was 16 years old at
the time of the shootings.
On the night of the incidents, Johnson went to two parties.
Before arriving at the first party, Johnson used crystal
methamphetamine. At the first party, he drank 10-to-15 beers
and smoked marijuana. He went to the second party at Katrina
Place with Pedro A. and Trujillo. Johnson drank one or two
additional beers at the Katrina Place party, but he was already
drunk.

13
 At the Katrina Place party, Johnson asked several men,
“Where you from?” Several persons surrounded Johnson, and he
was punched several times and knocked to the ground. He fled
the party and went home, where he stayed the rest of the night.
He denied being present for any shooting.
Johnson denied telling Pedro A. that he had been in the bed
of a truck. He did not know from whom Pedro A. heard this
information.
Johnson claimed that after he was taken into custody, a
detective named Robert Jones told him to “just let them know
what they want to know” and he could go home.
Johnson next spoke with Detective Cooper and other
detectives. He denied involvement in the shootings. He told
Detective Cooper that two others were involved in the shooting.
Johnson stated that Cerda got in the bed of the truck and shot at
the house. He also stated that Cerda and Trujillo got in the bed
of the truck. Johnson told different stories because he was
confused. He ultimately admitted to shooting. Johnson
recognized that the detectives did not believe him when he
initially denied involvement. Accordingly, he believed that if he
told the detectives what they wanted to hear, he could go home.
Johnson testified that he lied to Detective Cooper in three
interviews about being in the truck when the shooting occurred.
He also testified that he lied about telling Detective Cooper that
he drank only two to four beers. Johnson recognized that telling
the police that he shot up a house and killed somebody would
affect his life.
Johnson admitted that he was previously a member of LMS
from 2007 to when he was arrested in 2008. He went by the
moniker Casper. He also acknowledged that Trujillo was an LMS

14
member named Dreamer. Johnson had known Cerda for about
one year prior to the shootings. He testified that Cerda was not
an LMS gang member. Johnson also disputed that LMS was in a
rivalry with Val Verde Park.
Johnson confirmed that if a gang member gets beaten up by
rival gang members, he should retaliate. If the beaten gang
member fails to retaliate, his fellow gang members would beat
him up. Failure to retaliate would bring shame to the gang.
Johnson testified that although LMS was not in a war against
18th Street, his getting beaten up showed disrespect, so he was
expected to do something about it.
III. Rebuttal evidence
Both juries heard the recorded police interviews with
Johnson.
IV. Verdicts and sentences
Cerda was convicted of the first degree murder of Salazar
(Pen. Code,8 § 187, subd. (a); count 1). Johnson was convicted of
the second degree murder of Salazar (§ 187, subd. (a); count 1).
The juries convicted Cerda and Johnson of 13 counts of attempted
premeditated murder for the Katrina Place incident (§§ 664, 187,
subd. (a); counts 2–14) and 10 counts of attempted premeditated
murder for the Morning Circle incident (§§ 664, 187, subd. (a);

8 All further undesignated statutory references are to the
Penal Code.

15
counts 15–24). Gang enhancements were found true as to each
count against Cerda and Johnson. (§ 186.22, subd. (b)(1)(C).) 9
For counts 1 through 14 regarding the Katrina Place
incident, Cerda’s jury found true principal gun use
enhancements. (§ 12022.53, subds. (b), (c), (d), (e)(1).) But for
counts 15 through 24 regarding the Morning Circle incident,
Cerda’s jury found true personal gun use enhancements.
(§ 12022.53, subds. (b), (c).)
For counts 1 through 14 regarding the Katrina Place
incident, Johnson’s jury found not true personal gun use
enhancements. (§ 12022.53, subds. (b), (c), (d).) For counts 15
through 24 regarding the Morning Circle incident, Johnson’s jury
found true principal gun use enhancements. (§ 12022.53,
subds. (b), (c), (e)(1).)
In 2011, the trial court sentenced Cerda on count 1 to 25
years to life, plus an additional 25 years to life for the firearm
enhancement. On counts 2 through 14, the court imposed
consecutive life terms with minimum parole eligibility periods of
seven years, plus an additional 25 years to life for the firearm
enhancement. The total sentence on counts 2 through 14 was
416 years to life. On counts 15 through 24, the trial court
increased each of the minimum parole eligibility terms to 15
years pursuant to the gang penalty provision, plus an additional
20 years for the firearm enhancement. The trial court also

9 Because murder and attempted premeditated murder are
“punishable in state prison for life,” the gang penalty provision,
under section 186.22, subdivision (b)(5), should have applied,
instead of the gang enhancement under subdivision (b)(1)(C).
(People v. Lopez (2005) 34 Cal.4th 1002, 1006–1007.)

16
imposed the terms on counts 15 through 24 consecutively.10 The
total term on counts 15 through 24 was 350 years to life. Cerda’s
total sentence was 816 years to life.
The trial court sentenced Johnson to 15 years to life on
count 1. On counts 2 through 14, the court imposed consecutive
life terms, increasing the minimum parole eligibility terms to 15
years, pursuant to the gang penalty provision. The total term on
counts 1 through 14 was 210 years to life. On counts 15 through
24, the trial court sentenced Johnson to 200 years to life.11 For
the firearm enhancements, the trial court imposed an additional
20 years each to counts 15 through 24.12 Johnson’s total sentence
was 410 years to life.
V. Procedural history of the appeals
Cerda and Johnson appealed their judgments of conviction,
raising numerous contentions. Cerda contended: the evidence

10 The court imposed and stayed the terms for the lesser
firearm enhancements as to each count. (§ 12022.53, subd. (f).)
11 On counts 15 through 24, the trial court also imposed and
stayed the minimum parole eligibility term for the gang penalty
provision. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47
Cal.4th 583, 595; People v. Gonzalez (2010) 180 Cal.App.4th 1420,
1427.) However, the trial court did not account for the minimum
parole eligibility term for attempted premeditated murder, which
is life with the possibility of parole after serving a term of at least
seven years. (§§ 664, subd. (d), 3046, subd. (a)(1).)
12 On counts 15 through 24, the trial court imposed the 20-
year enhancements for discharge of a firearm and imposed and
stayed the lesser firearm use enhancement. (§ 12022.53,
subd. (f).)

17
was insufficient to support his attempted murder convictions; the
evidence was insufficient to support his conviction for
premeditated murder; instruction on the natural and probable
consequences doctrine was erroneous; instructing the jury with
CALCRIM No. 400 violated his constitutional rights; the trial
court violated his right to present a defense by failing to instruct
that the jury could convict him of shooting at an inhabited
dwelling; giving the kill zone instruction was prejudicial error;
his counsel provided ineffective assistance by failing to object to
inadmissible hearsay constituting the only evidence of his gang
membership; sentencing error; and the trial court violated his
constitutional rights when it ordered a probation report to be
prepared after pronouncing judgment.
Johnson contended: the evidence was insufficient to
support the attempted murder convictions as an aider and
abettor; the kill zone instructions were erroneous; the trial court
erred in instructing the jury with CALCRIM Nos. 400 and 601;
the trial court should have instructed on intoxication; and his
sentence was cruel and unusual based on his age.
We affirmed Cerda’s conviction but vacated Johnson’s
sentence and remanded for resentencing as to him. (People v.
Cerda (July 18, 2013, B232572) [nonpub. opn.].) But when People
v. Chiu (2014) 59 Cal.4th 15513 was decided, we recalled the
remittitur, reinstated the appeal, and concluded that Cerda’s
conviction for Salazar’s murder had to be reversed and remanded

13 People v. Chiu, supra, 59 Cal.4th at pages 158 to 159 held
“an aider and abettor may not be convicted of first degree
premeditated murder under the natural and probable
consequences doctrine. Rather, his or her liability for that crime
must be based on direct aiding and abetting principles.”

18
for a possible retrial of the murder count because it was possible
the conviction was premised on the natural and probable
consequences theory. Alternatively, the People could accept a
reduction of the first degree murder conviction to second degree.
(People v. Cerda (Jan. 23, 2015, B232572) [nonpub. opn.].) We
again vacated Johnson’s sentence.
Defendants petitioned for review again, and the Supreme
Court granted review in April 2015. While the appeal was
pending, our Legislature enacted Senate Bill Nos. 620 (2017–
2018 Reg. Sess.) and 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437). In 2018, the Supreme Court transferred the case to us
with direction to vacate our opinion and to reconsider the cause
in light of those new laws and People v. Canizales (2019) 7
Cal.5th 591, which clarified the law on when the kill zone
instruction may be given.
On remand, we reversed Cerda’s murder conviction because
the trial court improperly instructed the jury on the natural and
probable consequences doctrine but otherwise affirmed the
judgments of conviction. (People v. Cerda (Feb. 7, 2020, B232572
[nonpub. opn.].) We remanded for possible retrial of the murder
conviction, for resentencing under Senate Bill No. 620, and for a
Franklin14 hearing as to Johnson.
Defendants petitioned for review again. Our California
Supreme Court granted the petitions, deferring action pending its
decision in People v. Lopez (S258175). While the matter was
pending review, the Legislature enacted Senate Bill 775 (Stats.
2021, ch. 551), which expanded the remedies created by Senate
Bill 1437 to attempted murder. In 2022, the Supreme Court

14 People v. Franklin (2016) 63 Cal.4th 261.

19
transferred the case to us with directions to vacate our decision
and to reconsider the cause in light of Senate Bill 775. We now
do so, and we also consider Assembly Bill 333.
DISCUSSION
I. Senate Bills 1437 and 775
Cerda and Johnson contend that instruction on the natural
and probable consequences as to the murder and attempted
murder counts was prejudicial error, under Senate Bill 775. The
People concede the error but not its prejudicial nature.
A. Senate Bills 1437 and 775
Senate Bill 1437 limited accomplice liability under the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (People v. Lewis
(2021) 11 Cal.5th 952, 957, 959; People v. Gentile (2020) 10
Cal.5th 830, 842–843 (Gentile).) To achieve these goals, Senate
Bill 1437 added section 189, subdivision (e) (limiting application
of the felony-murder rule) and section 188, subdivision (a)(3)
(stating that “[m]alice shall not be imputed to a person based
solely on his or her participation in a crime”). As amended,
section 188 “bars a conviction for first or second degree murder
under a natural and probable consequences theory.” (Gentile, at
p. 846.) Senate Bill 1437 also added section 1170.95, which
created a procedure whereby persons convicted of murder under a
now-invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing.
Senate Bill 775 changed Senate Bill 1437 in several
respects. Two are relevant here. First, Senate Bill 775 added
subdivision (g) to section 1170.95. That subdivision provides, “A

20
person convicted of murder, attempted murder, or manslaughter
whose conviction is not final may challenge on direct appeal the
validity of that conviction based on the changes made to Sections
188 and 189 by Senate Bill 1437.” (§ 1170.95, subd. (g).)
Subdivision (g) supersedes Gentile’s holding that Senate Bill
1437’s ameliorative provisions do not apply on direct appeal (see
Gentile, supra, 10 Cal.5th at p. 839), and allows defendants to
challenge the validity of their convictions under the amended law
in this appeal. (See People v. Hola (2022) 77 Cal.App.5th 362,
369–370; People v. Glukhoy (2022) 77 Cal.App.5th 576, 584.)
Second, Senate Bill 775 expanded Senate Bill 1437 to reach
attempted murder. As originally enacted, section 1170.95’s
express language encompassed only murder, not attempted
murder or manslaughter. (See, e.g., People v. Flores (2020) 44
Cal.App.5th 985, 993–994.) Senate Bill 775 amended section
1170.95 to expressly encompass attempted murder and
manslaughter. (§ 1170.95, subd. (a); see also id., subd. (d)(1);
People v. Porter (2022) 73 Cal.App.5th 644, 651–652; People v.
Coley (2022) 77 Cal.App.5th 539, 544.) Thus, Senate Bill 775
eliminates the natural and probable consequences doctrine as a
basis to prove an accomplice committed attempted murder.
(People v. Sanchez (2022) 75 Cal.App.5th 191, 196.)
There is no dispute that Cerda and Johnson’s appeals were
not final when Senate Bill 775 took effect, and therefore the
amendments apply retroactively to them. (See, e.g., People v.
Montes (2021) 71 Cal.App.5th 1001, 1006–1007; People v. Porter,
supra, 73 Cal.App.5th at p. 652.) Because this matter remains on
direct appeal, any remedy would be the possibility of retrial,
rather than resentencing under section 1170.95. (See People v.
Hola, supra, 77 Cal.App.5th at p. 373.)

21
 B. Harmless error analysis
As to both the murder and attempted murder counts,
Cerda’s and Johnson’s juries were instructed on the natural and
probable consequences doctrine with shooting at an occupied
house as the target offense and murder and attempted murder as
the nontarget offenses, per CALCRIM No. 403. The jury was also
instructed on aiding and abetting with CALCRIM Nos. 400 and
401. As our discussion of Senate Bills 1437 and 775 above makes
clear, however, instruction on the natural and probable
consequences doctrine was improper under the amended law, as
the People concede. We therefore turn to the question of
prejudice.
“When a trial court instructs the jury on alternative
theories of guilt and at least one of those theories is legally
erroneous at the time it was given, we normally assess whether
the error was harmless beyond a reasonable doubt under
Chapman v. California (1967) 386 U.S. 18, 24.” (Gentile, supra,
10 Cal.5th at p. 851; People v. Aledamat (2019) 8 Cal.5th 1, 3
(Aledamat).) We “must reverse the conviction unless, after
examining the entire cause, including the evidence, and
considering all relevant circumstances, [we] determine[ ] the
error was harmless beyond a reasonable doubt.” (Aledamat, at
p. 3.)
In Aledamat, our Supreme Court “rejected a more
demanding standard of review . . . that would have required the
court to examine the verdict and the record and to find evidence
in the record to support a determination, beyond a reasonable
doubt, that the jury actually relied on the valid, not the invalid,
theory.” (People v. Thompkins (2020) 50 Cal.App.5th 365, 399;
see People v. Glukhoy, supra, 77 Cal.App.5th at pp. 592–593;

22
People v. Stringer (2019) 41 Cal.App.5th 974, 984.) Aledamat,
supra, 8 Cal.5th at page 9, concluded, “no higher standard of
review applies to alternative-theory error than applies to other
misdescriptions of the elements. The same beyond a reasonable
doubt standard applies to all such misdescriptions, including
alternative-theory error.” “It is enough if we can say, beyond a
reasonable doubt, the legally inadequate theory did not
contribute to the verdict.” (Thompkins, at p. 399.)
Aledamat suggested various nonexclusive methods of
evaluating prejudice. “An examination of the actual verdict may
be sufficient to demonstrate harmlessness, but it is not
necessary.” (Aledamat, supra, 8 Cal.5th at p. 13.) The reviewing
court may examine “what the jury necessarily did find” and
consider “whether it would be impossible, on the evidence, for the
jury to find that without also finding the missing fact as well.”
(Id. at p. 15, citing California v. Roy (1996) 519 U.S. 2, 7 (conc.
opn. of Scalia, J.).) Circumstances that may factor into the
prejudice calculus include the parties’ arguments, questions
posed by the jury, and the instructions as a whole. (Aledamat, at
pp. 12, 13–14; People v. Baratang (2020) 56 Cal.App.5th 252,
263.) Alternative-theory error is also harmless where, “based on
evidence that is overwhelming and uncontroverted,” the
reviewing court is “convinced on appeal, beyond a reasonable
doubt, that ‘ “the jury verdict would have been the same absent
the error.” ’ ” (People v. Thompkins, supra, 50 Cal.App.5th at
p. 401, citing People v. Merritt (2017) 2 Cal.5th 819, 832.)15

15 There is some dispute about how the error analysis is to be
applied under Aledamat. (See generally People v. Glukhoy,
supra, 77 Cal.App.5th at pp. 596–599.) We need not weigh in on

23
 C. Cerda
As we have said, a jury convicted Cerda of the first degree
murder of Salazar and 23 counts of attempted premeditated
murder, 13 of which arose from the Katrina Place shooting and
10 from the Morning Circle shooting. As to the Katrina Place
shooting (counts 1–14), the jury found true principal gun use
allegations as to Cerda. As to the Morning Circle shooting
(counts 15–24), the jury found he personally used and discharged
a firearm under section 12022.53, subdivisions (b) and (c).
1. The Morning Circle shooting
Beginning with the Morning Circle shooting, the People
urge that the true findings on the personal use and discharge of a
gun establish that Cerda was the shooter, meaning the direct
perpetrator of the attempted murders. We agree. As such, the
jury must have found that Cerda had the requisite intent to kill
as to the Morning Circle counts, even considering the natural and
probable consequences instruction. The natural and probable
consequences instruction, CALCRIM No. 403, told the jury that
before it decided whether “the defendant is guilty of murder or
attempted murder based on a natural and probable consequences
theory, you must decide whether he is guilty of shooting at an
occupied house.” Accordingly, the jury had to find: (1) the
defendant was guilty of shooting at an occupied house; (2) during
the commission of that shooting, the defendant or a coparticipant
committed murder; and (3) under all the circumstances, a
reasonable person in the defendant’s position would have known

the dispute, because the result is the same under any standard of
harmless error beyond a reasonable doubt.

24
that the murder was a natural and probable consequence of
shooting at an occupied house. The instruction further defined
“coparticipant” and “natural and probable consequence.”
By finding that Cerda was the Morning Circle shooter, the
jury necessarily found that he also was the attempted murderer.
That is, the jury did not find that anyone else shot at the house;
rather, it found only principal gun use allegations true as to
Johnson. And the evidence was that only one gun was used at
Morning Circle, the AK-47. Therefore, the jury must have found
(1) that Cerda shot at the Morning Circle house and (2) he
committed attempted murder, the elements of which were
otherwise defined in the instructions as requiring intent to kill.
(CALCRIM Nos. 520, 600.)
Indeed, as to the Morning Circle counts, the prosecutor did
not argue the natural and probable consequences doctrine.
Instead, the prosecutor argued that Cerda “personally shot up”
the house, “not as an aider and abettor, but as a strict principal.”
Finally, evidence of Cerda’s intent to kill was compelling.
The AK-47 belonged to Cerda, and therefore, he more likely
understood its capabilities. Those capabilities, as the criminalist
testified and the evidence showed, included the ability to
penetrate even exterior walls of a house. The criminalist further
said that this weapon’s purpose is to kill, and when a gang
member uses it, it is retaliation with an exclamation point.
Cerda also admitted in jailhouse calls to his parents that he shot
up a house, even if he did not admit his intent in doing so.
Further, there was evidence that Cerda was a gang member and,
as such, had a motive to retaliate against rival gangs and to seek
retribution for the earlier assault on Johnson. Given the jury’s
verdict that Cerda was the shooter, that the prosecutor did not

25
rely on the natural and probable consequences doctrine, and the
evidence, the error in instructing the jury on that doctrine was
harmless.
2. The Katrina Place shooting
Turning to the Katrina Place shooting, the verdicts are not
as revelatory. Cerda’s jury found him guilty of principal gun use
allegations, while Johnson’s jury rejected the People’s theory that
Johnson was the shooter. Although it could be said that these
findings suggest Cerda was also the Katrina Place shooter, no
jury was asked to make such a finding; accordingly, there is no
finding that Cerda shot at Katrina Place. Therefore, unlike with
the Morning Circle verdicts, the verdicts as to the Katrina Place
shooting do not show that instructing on the natural and
probable consequences doctrine was harmless.
Contributing to the potential prejudicial nature of the
instructional error, the prosecutor in closing argued the natural
and probable consequences theory specifically as to the Katrina
Place shooting to the jury. He told the jury that if it did not think
Cerda intended to kill anyone and that “they were just shooting
into a home and somebody just happened to die,” the jury, by
finding that someone shot into the house, could still convict
Cerda of murder. The prosecutor explained, “If you are involved
in a crime where the natural and probable consequence is that
somebody is going to die, then you get to convict them of the
ultimate result. Of the murder itself.” The prosecutor said that
so long as the jury found somebody shot into an occupied home
and somebody died, “even if you believe that Cerda didn’t intend
to aid and abet the murder of Salazar,” Cerda was still guilty of
Salazar’s murder. “So even if you think look, I don’t think Cerda
had anything to do with killing these people. I think all he

26
wanted to do was hand the gun” to Johnson, knowing that
Johnson was going to shoot that house up, the “law says [Cerda]
is still guilty of murder.” As an aider and abettor to shooting at
an occupied house, a reasonable person in Cerda’s position would
know that murder was a natural and probable consequence of
shooting at an occupied house. “Unless I have an I.Q. of two, I
know lighting up a house with an assault rifle, somebody is going
to die.” Thus, the prosecutor urged the jury to find Cerda guilty
under the natural and probable consequences doctrine, which
weighs in favor of a prejudice finding. (See, e.g., People v.
Sanchez, supra, 75 Cal.App.5th at p. 197 [prosecutor argued both
theories to jury]; People v. Baratang, supra, 56 Cal.App.5th at
p. 264 [prejudicial error found where prosecutor argued legally
invalid theory at length]; People v. Powell (2021) 63 Cal.App.5th
689, 715 [prosecutor’s argument is relevant to whether error
harmless]; In re Rayford (2020) 50 Cal.App.5th 754, 783.)
Nor do the jury’s premeditation findings as to the
attempted murders establish it convicted Cerda based on his own
mens rea. Although the jury found that the murders attempted
were premeditated and willful (defined in the instructions as
intending to kill when they acted), the jury was instructed that
the premeditation did not have to be personal to each defendant.
Instead, the jury was instructed that “Peter Cerda or Kyle
Johnson” acted willfully if they intended to kill when they acted,
deliberated if they carefully weighed their choice, and acted with
premeditation if they decided to kill before acting. (CALCRIM
No. 601, italics added.) “The attempted murder was done
willfully and with deliberation and premeditation if either the
defendant or Peter Cerda or all of them acted with that state of
mind.” (CALCRIM No. 601.) Therefore, the premeditation

27
instruction does not conclusively establish that the jury found
Cerda intended to kill.
Finally, the People describe the evidence of Cerda’s intent
to kill as “overwhelming,” primarily citing the firing of multiple
rounds of high-velocity ammunition from an AK-47. As the
criminalist testified, military forces use the AK-47, and its
ammunition can penetrate substantial barriers, including
exterior walls and multiple additional walls—which is exactly
what happened here. As we have said, this evidence does speak
to malice and intent to kill. Even so, we discern a difference
between the scenario where Cerda personally used the gun to
shoot at the Morning Circle house and one where he gave
someone else the gun to shoot at the Katrina Place house. Given
the totality of the record regarding the Katrina Place counts,
including the verdicts, instructions, and the prosecutor’s
argument about the natural and probable consequences doctrine,
we cannot say beyond a reasonable doubt that Cerda harbored
the same intent as the actual shooter at Morning Circle and as
the aider and abettor at Katrina Place. We therefore cannot find
the error harmless.
D. Johnson
Johnson’s jury convicted him of the second degree murder
of Salazar and of the same 23 counts of attempted premeditated
murder. However, as to the Katrina Place shooting, the jury did
not find true personal gun use allegations under section
12022.53, subdivisions (b), (c), and (d), even though it was the
People’s theory of the case that Johnson was the shooter. As to
the Morning Circle shooting, the jury found true principal gun
use allegations under section 12022.53, subdivisions (b), (c), and
(e)(1). Thus, unlike Cerda’s verdict, Johnson’s jury did not find

28
that Johnson personally used and discharged a firearm at either
Morning Circle or Katrina Place. Accordingly, the verdicts do not
preclude the conclusion that the jury relied on the now-invalid
natural and probable consequences theory to find Johnson guilty
of the crimes.
Nor do the jury’s premeditation findings as to attempted
murders establish it convicted Johnson based on his own mens
rea. As we noted above, the jury was instructed that
premeditation did not have to be personal to each defendant.
That is, if the jury found that one defendant premeditated, it
could impute that finding to the other coparticipant in the crimes.
(CALCRIM No. 601.) Therefore, the premeditation instruction
does not conclusively establish that the jury found Johnson
intended to kill.
Moreover, the prosecutor argued the now-invalid natural
and probable consequences theory in closing. The prosecutor
began by discussing express and implied malice, premeditation,
and aiding and abetting. He then turned to the natural and
probable consequences doctrine, saying that if “some of you” did
not think that Johnson went to the house to kill anyone, although
he fired 16 rounds into the house, then he was still guilty of
murder. “If somebody shoots into an occupied home and
somebody dies, even though you say, look, I didn’t mean to kill
anyone, the law says you are still guilty of murder. . . . You don’t
get to simply say, I only meant to shoot up the front door so I
unloaded 16 rounds into it. If somebody dies, tough.” So, even if
the jury believed that Johnson didn’t intend to murder Salazar,
Johnson “is still guilty of murder if you find that he committed
the crime of shooting at an occupied house which led to the death
of a person.”

29
 The prosecutor further explained that if Johnson were
guilty of shooting at an occupied house, and during the shooting
somebody died, and under the circumstances a reasonable person
would have known that murder was a natural and probable
consequence of shooting at an occupied house, then Johnson was
guilty of murder. Thus, the prosecutor urged the jury to find
Johnson guilty under the natural and probable consequences
doctrine, which weighs in favor of a prejudice finding. (See, e.g.,
People v. Sanchez, supra, 75 Cal.App.5th at p. 197; People v.
Baratang, supra, 56 Cal.App.5th at p. 264; People v. Powell,
supra, 63 Cal.App.5th at p. 715; In re Rayford, supra, 50
Cal.App.5th at p. 783.)
The People, however, ignore the verdicts, instructions, and
the argument and instead focus on the evidence, describing it as
overwhelming that Johnson was the actual shooter at Katrina
Place and the direct aider and abettor of the Morning Circle
shooting. However, the jury rejected the People’s theory that
Johnson was the shooter at Katrina Place, suggesting it did not
find the evidence overwhelming on that issue.
And although the evidence strongly supported an intent to
kill, we cannot find—especially when considered in the total
context of the verdicts, instructions, and argument—that it was
overwhelming and uncontroverted. While there was evidence
that the shooting or shootings were in retaliation for the beating
Johnson had received earlier that night, the evidence does not
necessarily establish what Johnson intended. To be sure, the
nature of the weapon and ammunition used were compelling
evidence of malice and intent to kill, but the evidence also was
that the weapon belonged to Cerda, not to Johnson. Johnson
therefore may not have understood the weapon’s capacity.

30
 Also, Johnson gave different statements about his
participation in the crimes, maintaining at trial that he was not
involved in them, that he had gone home that night and stayed
there. However, before trial, he told Detective Robison that he
shot at the “18th Street” house, but he did not mean to do
anything wrong or to hurt anyone, and he was drunk. He also
told a fellow gang member that he shot at the house, but Johnson
did not elaborate specifically on his state of mind. Therefore,
even if the jury believed that Johnson shot at a house—
something that the verdicts do not reflect—it cannot be said
beyond a reasonable doubt that the jury convicted Johnson based
on a finding about his own mens rea as opposed to a
coparticipant’s.
We therefore cannot conclude that instructing Johnson’s
jury on the natural and probable consequences doctrine was
harmless beyond a reasonable doubt.
II. Assembly Bill 333 and the gang enhancements
Cerda and Johnson 16 argue that recent amendments to
section 186.22, the gang enhancement statute, require reversal of
the gang enhancements. The People concede, and we agree.
“Section 186.22 provides for enhanced punishment when a
defendant is convicted of an enumerated felony committed ‘for
the benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.’ ” (People v. Delgado
(2022) 74 Cal.App.5th 1067, 1085; People v. Lopez (2021) 73

16 Because we are reversing the substantive counts as to
Johnson, most other issues, including the gang enhancement
issue, are moot as to him.

31
Cal.App.5th 327, 344; § 186.22, subd. (b)(1).) One element
necessary to prove a section 186.22, subdivision (b)(1) gang
enhancement is that the group alleged to be a gang has engaged
in a “pattern of criminal gang activity.” (§ 186.22, subd. (f).)
When the instant matter was tried, “pattern of criminal gang
activity” was defined as the “ ‘commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more [enumerated]
offenses, provided at least one of these offenses occurred after the
effective date of [the enacting legislation] and the last of those
offenses occurred within three years after a prior offense, and the
offenses were committed on separate occasions, or by two or more
persons . . . .’ ” (People v. Valencia (2021) 11 Cal.5th 818, 829;
former § 186.22, subd. (e).) These prior offenses have come to be
known as “predicate offenses.” (Valencia, at p. 826.)
Assembly Bill 333, which took effect on January 1, 2022,
made significant amendments to section 186.22. The legislation
redefined “pattern of criminal gang activity” in five respects, as
follows. (1) Previously, the predicate offenses had to have been
committed, or convictions had to have occurred, within three
years of each other. Now, additionally, the last offense must have
occurred within three years of the date the current offense is
alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The
amended law expressly states that the predicate crimes must
have been committed by “members,” not simply “persons,” as
formerly stated. (Ibid.) In contrast to the former law, the
predicates must have been gang-related. (People v. Rodriguez
(2022) 75 Cal.App.5th 816, 822–823.) (3) The amendments
impose a new requirement that the predicate offenses “commonly
benefited a criminal street gang, and the common benefit of the

32
offense is more than reputational.” (§ 186.22, subd. (e)(1);
Rodriguez, at pp. 822–823.) (4) Looting, felony vandalism, felony
theft of an access card or account, and other identity fraud crimes
no longer qualify as predicates, while other offenses (kidnapping,
mayhem, torture, and felony extortion) now do so qualify.
(§ 186.22, subd. (e)(1).) (5) The currently charged offense may
not be used to establish the pattern of criminal gang activity.
(Id. at subd. (e)(2).)
Assembly Bill 333 also modified the definition of “criminal
street gang.” Previously, section 186.22 stated that a criminal
street gang was “any ongoing organization, association, or group”
of three or more persons, whether formal or informal. That
language has been changed to “an ongoing, organized association
or group of three or more persons, whether formal or informal.”
(§ 186.22, subd. (f), italics added; see People v. Delgado, supra, 74
Cal.App.5th at p. 1086; People v. Lopez, supra, 73 Cal.App.5th at
p. 344.) The previous definition required that the gang’s
“members individually or collectively engage in, or have engaged
in,” the pattern of criminal gang activity. (Former § 186.22,
subd. (f), italics added). Now, the word “individually” has been
excised and the gang’s members must “collectively” engage in, or
have engaged in, the pattern of criminal gang activity. (§ 186.22,
subd. (f).) The amendment also added a new subdivision
clarifying that benefit to the gang must be more than
reputational; for example, “financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or

33
intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).)17
Assembly Bill 333’s amendments to section 186.22 apply
retroactively to this case. (See, e.g., People v. Rodriguez, supra,
75 Cal.App.5th at p. 819; People v. E.H. (2022) 75 Cal.App.5th
467, 478; People v. Delgado, supra, 74 Cal.App.5th at p. 1087;
People v. Lopez, supra, 73 Cal.App.5th at pp. 343–344.) As
retroactively applied here, the prosecution provided evidence of
two predicate offenses, vehicle theft and felony vandalism, but
felony vandalism no longer qualifies as a predicate offense.
(§ 186.22, subd. (e)(1).) Accordingly, the true findings on the
gang enhancements must be reversed and the matter remanded
to allow the prosecution the option of retrying the enhancements
and establishing all elements required by Assembly Bill 333. 18
(See, e.g., E.H., at p. 480; Delgado, at p. 1091.)
III. Sufficiency of the evidence

17 Assembly Bill 333 also enacted new section 1109. That
section provides, inter alia, that if requested by the defense, a
charged section 186.22, subdivision (b) or (d) enhancement “shall
be tried in separate phases,” with the question of guilt of the
underlying offense to be determined first and the truth of the
gang enhancement tried thereafter. (§ 1109, subd. (a).) The
People’s concession regarding retroactivity does not extend to
section 1109. (See generally People v. Perez (2022) 78
Cal.App.5th 192, 207 [section 1109 is not retroactive]; but see
People v. Burgos (2022) 77 Cal.App.5th 550, 564–568 [section
1109 is retroactive].)
18 Because we reverse the gang enhancements and remand
for their potential retrial, we need not decide whether any other
new elements of section 186.22 were met.

34
 In their original appeals, Cerda and Johnson raised various
contentions based on sufficiency of the evidence. Cerda
contended there was insufficient evidence to support the
premeditation finding as to the murder count. Johnson and
Cerda both contended there was insufficient evidence they
committed attempted murder (counts 2–24). Notwithstanding
that we are reversing the judgment in its entirety as to Johnson
and in part as to Cerda, we address these contentions, because if
correct, then retrial would be barred. However, they are not,
and, as we did in our original opinion, we reject the contentions.
A. Standard of review
To determine whether the evidence was sufficient to
sustain a criminal conviction, “ ‘ “we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1104.) We
presume in support of the judgment the existence of every fact
the trier of fact could reasonably deduce from the evidence.
(People v. Baker (2021) 10 Cal.5th 1044, 1103.) Reversal is
unwarranted unless it appears “ ‘ “ ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support’ ” ’ ”
the verdict. (People v. Penunuri (2018) 5 Cal.5th 126, 142.) The
same standard applies when the prosecution relies on

35
circumstantial evidence. (People v. Vargas (2020) 9 Cal.5th 793,
820.)19
B. Sufficiency of the evidence to support the premeditation
finding as to the murder count
Murder is of the first degree when it is willful, deliberate
and premeditated. (§ 189, subd. (a).) A killing is premeditated
and deliberate if it is considered beforehand and occurred as the
result of preexisting thought and reflection, rather than as the
product of an unconsidered or rash impulse. (People v. Pearson
(2013) 56 Cal.4th 393, 443.) “Deliberation” refers to careful
weighing of considerations in forming a course of action;
“premeditation” means thought over in advance. (Ibid.)
However, it is unnecessary to prove the defendant maturely and
meaningfully reflected upon the gravity of his act. (§ 189,
subd. (d).) Premeditation and deliberation do not require any
extended period of time. (People v. Salazar (2016) 63 Cal.4th 214,
245.) The issue is not so much the duration of time as it is the
extent of reflection, because thoughts may follow each other with
great rapidity, and cold, calculated judgment may be arrived at
quickly. (People v. Potts (2019) 6 Cal.5th 1012, 1027.)
Three categories of evidence are especially probative to
establish premeditation and deliberation: (1) what was the
defendant doing before he committed the crime (planning
activity), (2) facts about the relationship between the victim and

19 Cerda’s assertion that his conviction has no relevance to
the standard of review is incorrect. Rather, we presume the
judgment is correct, and the appellant, here Cerda, has the
burden to demonstrate error. (See generally People v. Sanghera
(2006) 139 Cal.App.4th 1567, 1573 [appealing defendant bears
burden of demonstrating insufficiency of evidence].)

36
the defendant (motive), and (3) the manner of killing. (People v.
Potts, supra, 6 Cal.5th at pp. 1027–1028; People v. Anderson
(1968) 70 Cal.2d 15, 26–27 (Anderson).) These so-called Anderson
factors are not all required, are not exclusive, and need not be
accorded any particular weight; instead, they are a framework to
guide appellate review. (People v. Morales (2020) 10 Cal.5th 76,
89.)
Here, there was evidence of all three Anderson factors.
First, there was evidence of motive. The defendants planned to
attack the Katrina Place house in retaliation for the earlier
assault on Johnson. They then wanted to attack the Morning
Circle house because rival gang members lived there. As the
gang expert therefore suggested, there was evidence the
defendants were motivated to advance their gang’s interests by
instilling fear, intimidation, and respect in the community and in
their rivals. (See, e.g., People v. Romero (2008) 44 Cal.4th 386,
401 [motive shown where victim and defendant were members of
rival gangs, and killing gang rival would elevate the killer’s
status]; People v. Martinez (2003) 113 Cal.App.4th 400, 413
[motive for shooting involved gang rivalry].)
Second, there was planning evidence. The defendants
discussed retaliating for the assault on Johnson, went to Cerda’s
house to get the AK-47, drove back to their friend’s house to
discuss the plan further, and then put the plan into action by
driving to Katrina Place. (See, e.g., People v. Salazar, supra, 63
Cal.4th at p. 245 [defendant brought loaded gun with him,
“demonstrating preparation”]; People v. Ramos (2004) 121
Cal.App.4th 1194, 1208 [gang member armed himself before
attending party, showing a “willingness to take immediate lethal
action” if need arose]; People v. Alcala (1984) 36 Cal.3d 604, 626

37
[bringing and using deadly weapon raised reasonable inference
defendant considered possibility of homicide at outset].)
Contrary to Cerda’s suggestion that Pedro A. only knew there
was a plan to retaliate in some unspecified manner, Pedro A. told
police that the defendants planned to “retaliate against the
people” who had assaulted Johnson by shooting at that “fucker.”
Then, after shooting at the Katrina Place house, the defendants
continued their mission by driving to Morning Circle and
shooting at that house. (See, e.g., People v. Mayfield (1997) 14
Cal.4th 668, 767 [premeditation doesn’t require extended period
of time; cold, calculated judgment can be arrived at quickly],
overruled on other grounds by People v. Scott (2015) 61 Cal.4th
363.)
Finally, the manner of the attempted killings—firing an
AK-47 multiple times at the houses—tended to show
premeditation and deliberation, as well as an intent to kill. (See,
e.g., People v. Herrera (1999) 70 Cal.App.4th 1456, 1463–1464
[dozen shots fired during drive-by shooting evidenced
premeditation], disapproved on another ground by People v. Mesa
(2012) 54 Cal.4th 191, 199; People v. Bolin (1998) 18 Cal.4th 297,
332 [firing multiple gunshots at victims supported premeditation
finding].) Here, a military assault rifle so powerful its bullets
could penetrate walls was used, showing the potential lethality of
the conduct.
In sum, the evidence was sufficient to support the
premeditation finding.
C. Sufficiency of the evidence to support attempted murder
counts
Johnson and Cerda contend that there was insufficient
evidence they committed attempted murder as an aider and

38
abettor. Cerda adds that there was insufficient evidence he
directly perpetrated the attempted murders at Morning Circle.
We disagree.
Attempted murder “requires the specific intent to kill and
the commission of a direct but ineffectual act toward
accomplishing the intended killing.” (People v. Lee (2003) 31
Cal.4th 613, 623.) A person aids and abets a crime, including
attempted murder, when the person, acting with (1) knowledge of
the perpetrator’s unlawful purpose; and (2) the intent or purpose
of committing, encouraging, or facilitating the commission of the
offense; (3) by act or advice aids, promotes, encourages, or
instigates, commission of the crime. (People v. Nguyen (2015) 61
Cal.4th 1015, 1054.) Factors relevant to aiding and abetting are
presence at the scene of the crime, companionship, and conduct
before and after the offense. (Ibid.)
Here, the verdicts suggested that Johnson could have been
convicted of all attempted murder counts 2 through 24 as an
aider and abettor, and Cerda of the attempted murder counts 2
through 14 (Katrina Place) as an aider and abettor. There was
sufficient evidence of intent to kill, and that Cerda and Johnson
aided and abetted these crimes.
Johnson and Cerda were together before, during, and after
the shootings. According to Pedro A., the defendants went to a
party at Katrina Place where Johnson was assaulted. Cerda and
Johnson returned from that party and planned to retaliate
against Johnson’s assaulters, so they went to Cerda’s home to
retrieve the AK-47, a weapon with extremely deadly capabilities.
With others, Cerda and Johnson traveled together in a truck to
Katrina Place. Cerda loaded the gun. And although the jury
found not true the allegation that Johnson shot at the Katrina

39
Place house, the evidence nonetheless was that Johnson was the
shooter and Cerda was there, with him. After shooting up the
Katrina Place house, Johnson and Cerda drove to the Morning
Circle house, where Cerda now became the shooter. Johnson,
having seen what had just happened at Katrina Place, could have
had little doubt about what would happen at Morning Circle.
Johnson also admitted knowing that they were going on a
mission and feeling like he had to do it since he was in the gang.
Cerda similarly admitted in his jailhouse calls that he and a
friend shot up houses.
Defendants, however, suggest that this evidence at most
shows they shot at an occupied house, a general intent crime
under section 246. A jury, however, could find it shows much
more: an intent to kill.20 (See, e.g., People v. Smith (2005) 37
Cal.4th 733, 741 [firing toward victim at close range in way that
could have inflicted mortal wound may support inference of
intent to kill].) The evidence was therefore sufficient to show
that defendants, either as aiders and abettors or as the direct
perpetrator (Cerda) committed attempted murder such that
retrial is not barred.
IV. Instruction on the kill zone theory
The trial court instructed the jury on the kill zone theory as
to the attempted murder counts, and Cerda contends that the
theory was inapplicable. We disagree.

20 Cerda and Johnson argued that they could not have
intended to kill people they could not see. We discuss this
argument in connection with the kill zone theory.

40
 As we have said, attempted murder requires a specific
intent to kill and a direct but ineffectual act toward
accomplishing the intended killing. (People v. Lee, supra, 31
Cal.4th at p. 623.) When a defendant attempts to kill two or
more persons by a single act, the element of intent to kill must be
examined independently as to each alleged victim. (People v.
Bland (2002) 28 Cal.4th 313, 327–328 (Bland).) Intent to kill
cannot transfer from one attempted murder victim to another.
(Id. at pp. 328–329.)
Although intent to kill cannot transfer among victims,
there may be a concurrent intent to kill that establishes
attempted murder against each person a defendant tries to kill
by his or her single act. (Bland, supra, 28 Cal.4th at p. 329.)
Concurrent intent would be established when the defendant,
while targeting a specific person, tried to kill everyone in the area
in which that person was located to ensure the targeted person’s
death. In doing so, the defendant would specifically intend to kill
everyone in that area. (Ibid.) This area around the primary
target victim is the “kill zone.” (Id. at p. 330.) This kill zone
theory allows for a conviction of attempted murder against any
victim who was in the specified area but was not the defendant’s
primary target. (Id. at pp. 329–330; People v. Smith, supra, 37
Cal.4th at pp. 745–746.)
People v. Canizales, supra, 7 Cal.5th at page 607, clarified
under what circumstances the kill zone theory applies. The kill
zone theory may only be applied when: “(1) the circumstances of
the defendant’s attack on a primary target, including the type
and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create a
zone of fatal harm—that is, an area in which the defendant

41
intended to kill everyone present to ensure the primary target’s
death—around the primary target and (2) the alleged attempted
murder victim who was not the primary target” was in that zone
of harm. (Ibid.) Canizales, at page 607, elaborated that in
determining the intent to create a kill zone and the scope of the
kill zone, the circumstances of the attack include “the type of
weapon used, the number of shots fired (where a firearm is used),
the distance between the defendant and the alleged victims, and
the proximity of the alleged victims to the primary target.”
A. Circumstances of the attack
For both the Katrina Place and Morning Circle incidents,
the shooters used an AK-47 assault rifle. Criminalist Keil
explained that the high-caliber ammunition from such an assault
rifle travels at up to four times the velocity of handgun
ammunition and has the potential to penetrate substantial
barriers.
The 16 shots fired from the assault rifle decimated the
Katrina Place house.21 All 16 shots penetrated the exterior walls.
Many also penetrated internal walls and fixtures. The shots
killed one person, and debris injured two others. The location of
the casings in the street indicated that the truck stopped in front

21 Cerda suggests that using an AK-47 assault rifle would
only signify an intent to kill if the shooter had prior knowledge of
the gun’s capabilities. Even if we agreed, there was evidence of
such prior knowledge. The evidence showed that the rifle
belonged to Cerda, who would have witnessed multiple shots
fired from the AK-47. After one shot was fired, Cerda and the
others could have sufficiently appreciated the assault rifle’s
capabilities.

42
of the house, allowing the shooter to fire from close range. The
two groups of casings further suggested to Keil that the shooter
fired 11 shots from a stationary position, then turned or moved to
another location and fired the remaining five shots. This
deliberate positioning of the shooter and placement of shots could
further support a finding he targeted specific locations of the
house where victims were present.
Only 30 minutes after Katrina Place, Cerda shot at the
Morning Circle house. The group employed the same tactics as
those at Katrina Place. The truck pulled up in front of the house.
Cerda fired shots from a stationary position in the bed of the
truck, while Johnson and the others remained in the passenger
compartment. Cerda fired close to the front of the house, as the
location of the four spent casings and four live rounds indicated.
Significantly, Cerda fired the same high-velocity
ammunition from the same military-style assault rifle, which had
been fired only 30 minutes before. (Cf. Canizales, supra, 7
Cal.5th at p. 611 [shooter fired lower-powered nine-millimeter
rounds from handgun].) Multiple shots again penetrated the
exterior. One entered the master bedroom where Vicente V. and
his wife were sleeping. Another struck a staircase leading to
another bedroom. Other bullets were embedded in the exterior
walls. The six damaged areas of the house suggested Cerda fired
at least six shots, although only four spent casings were
discovered. Notably, there were nine victims in the Morning
Circle house, five fewer than in the Katrina Place house.
Although Cerda fired fewer shots and did not injure anyone, the
intent to create a kill zone “does not turn on the effectiveness or
ineffectiveness of [his] chosen method of attack.” (Id. at p. 611.)

43
The number of shots is relevant to intent to create a kill zone, but
it is not dispositive. (Ibid.)
The location of the shootings also supports the kill zone
theory. Unlike the open street where the shooting in Canizales
occurred, the shooters here fired at two houses whose occupants
conceivably had fewer places to run or to take cover, especially
because of the wall-piercing ammunition used. Moreover, the
shootings occurred at night, when it would be more certain that
people would be in the houses.
The facts of both shootings stand in stark contrast to those
in Canizales. The shooter in Canizales fired shots at his primary
target from 100-to 160-feet away. The shooting occurred at a
block party on a wide city street, open and unconfined by any
structure. (Canizales, supra, 7 Cal.5th at p. 611.) Bullets were
“ ‘going everywhere,’ ” rather than targeting specific victims.
(Ibid.) Moreover, the Canizales shooter fired lower-powered nine-
millimeter rounds from a handgun.
Cerda asserts that an intent to intimidate, as an
alternative to an intent to kill, could reasonably be inferred from
the circumstances of the attacks,22 highlighting Detective Gillis’s
testimony that a gang member could commit a shooting with the
intent to intimidate without also intending to kill. However, he
was commenting on a hypothetical situation where a gang
member fired shots into an unoccupied car, rather than an

22 Cerda also contends that the prosecutor “conceded the
existence of multiple inferences.” The prosecutor did no such
thing. Moreover, the prosecutor’s argument is not relevant to
whether instructing on the kill zone theory was proper, although
it would be relevant to any analysis of prejudice. (Canizales,
supra, 7 Cal.5th at pp. 613–614.)

44
occupied house. He qualified, “In gang life, it can’t be painted so
broad. Each case is different.” In the situation of an unoccupied
car, the shooter could have no intent to kill because there would
be no victim to kill. Detective Gillis’s testimony does not suggest
that alternative reasonable inferences, including an intent to
intimidate, could be drawn from circumstances of the attacks in
this case. Instead, Detective Gillis testified that the sole purpose
for using an AK-47 was to kill.
Intent to kill was also supported by Cerda’s and Johnson’s
statements, as recounted by Pedro A. Cerda stated, “We’re going
to get them fools, you know. A gun and some other foolio.”
Johnson demanded, “[T]onight. Fuck that.” This exchange could
represent Cerda’s proposal to kill the 18th Street gang members
who beat up Johnson. The only reasonable inference to be drawn
from the use of the assault rifle was the intent to kill everyone
occupying the house.
Further, Cerda argues that no primary target existed in
each shooting, rendering the kill zone theory inapplicable. We
disagree.
Canizales, supra, 7 Cal.5th at page 608, required a primary
target for the application of the kill zone theory. The kill zone
theory addresses whether a defendant who murders or attempts
to murder an intended target can be convicted of attempted
murder of nontargeted persons. (Ibid.; People v. Stone (2009) 46
Cal.4th 131, 138.) When the defendant has the intent to kill a
particular target, for attempted murder liability under the kill
zone theory, the jurors must infer his or her concurrent intent to
kill the nontargeted persons. (Canizales, at p. 608.) Intent to kill
others could not be concurrent to an intent to kill a primary
target if there was no primary target.

45
 Vicente V. was the primary target at the Morning Circle
house.23 According to Detective Gillis, Vicente V. was a founding
member of the Val Verde Park gang, with which his family had
been associated for two generations. Vicente V., as well as
Detective Gillis, identified Vince, Jr., as a Val Verde Park gang
member. Vince, Jr., was also at the house during the shooting.
Cerda and Johnson were affiliated with LMS, which was the rival
gang of Val Verde Park.
Upon considering the circumstances of the attack at
Morning Circle, including the power of the assault rifle used, the
number and placement of shots, and the position and close range
from which the shootings occurred, we conclude the evidence
supported Cerda’s intent to create a kill zone.
B. Scope of the zone
The second prong of the Canizales test evaluates the scope
of the kill zone. Specifically, we must determine whether the
nonprimary target victims were in the kill zone. (Canizales,
supra, 7 Cal.5th at p. 607.) An area where the victims were
subjected to mere risk of lethal harm is insufficient. It must be
an area in which the shooter intended to kill everyone. (Ibid.)
Again, the circumstances of the attack inform our
determination.24 The scope of each kill zone encompassed the

23 Although what happened at Katrina Place is relevant to
our analysis, only the counts concerning Morning Circle remain
at issue.
24 Because the Supreme Court in Canizales, supra, 7 Cal.5th
at page 611, concluded that the evidence was insufficient to
support a finding that the defendants intended to create a kill
zone, it did not determine the scope of the zone.

46
entire house. We base this conclusion on the use of the high-
powered assault rifle, the damage to the interiors of the houses
by the penetration of bullets through the exterior walls, the close
range from which the shooter fired, and the number and
placement of shots. During the brief duration of each shooting,
the victims were confined to the house. Accordingly, each victim
was located within the respective kill zone.
Cerda argues that the kill zone theory could not properly
apply because the evidence did not reveal whether he knew
where each victim was located. Cerda further contends that
People v. Adams (2008) 169 Cal.App.4th 1009, and People v. Vang
(2001) 87 Cal.App.4th 554 (Vang), should not be cited for the
proposition that a shooter may attempt to kill persons even
though he or she is unaware of their presence.
We disagree. Vang was cited with approval in Bland,
supra, 28 Cal.4th at page 330, Stone, supra, 46 Cal.4th at page
140, and Canizales, supra, 7 Cal.5th at page 610. Vang
concluded that despite each shooter’s inability to see all victims
in the two targeted houses, the jury could reasonably infer the
intent to kill every person in each house, based on the placement
of shots, the number of shots, and the use of high-powered, wall-
piercing firearms.25 (Vang, supra, 87 Cal.App.4th at p. 564.)

25 Cerda argues that the primary targets were not visible to
the shooters, as they were in Vang. This distinction is of little
consequence. As we have discussed, the physical presence of a
primary target is not essential. All that is required is that the
shooters intended to kill someone. Moreover, at issue in Vang
was the sufficiency of evidence to support the attempted murders
of the nine nonvisible victims.

47
 “Whether or not the defendant is aware that the attempted
murder victims were within the zone of harm is not a defense, as
long as the victims were actually within the zone of harm.”
(People v. Adams, supra, 169 Cal.App.4th at p. 1023; accord,
Canizales, supra, 7 Cal.5th at p. 607.)
The visibility of the victims and the shooter’s awareness of
their locations are relevant but not dispositive, as they might be
in cases where the shooter fires a single shot from a handgun.
(See People v. Smith, supra, 37 Cal.4th at pp. 747–748.) The
attacks here were of such a magnitude that knowledge of the
victims’ specific locations was not necessary. The intent was to
kill everyone in each house. Because each attempted murder
victim was located inside the Morning Circle house, he or she was
within the kill zone. Thus, substantial evidence supported the
second prong, as well as the first prong, of the Canizales test.
Accordingly, we conclude the jury was properly instructed on the
kill zone theory.
V. CALCRIM No. 400
Cerda contends that instructing the jury with a superseded
version of CALCRIM No. 400 was prejudicial error. We disagree.
As given, CALCRIM No. 400 told the jury that a “person
may be guilty of a crime in two ways. One, he or she may have
directly committed the crime. I will call that person the
perpetrator. Two, he or she may have aided and abetted a
perpetrator, who directly committed the crime. A person is
equally guilty of the crime whether he or she committed it
personally or aided and abetted the perpetrator who committed

48
it.”26 (Italics added.) Cerda takes issue with the “equally guilty”
language, claiming it improperly tethered his culpability for
attempted premeditated murder and premeditated murder to
another’s mental state.
Our California Supreme Court, however, has held that the
“equally guilty” language generally is a correct statement of law.
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433
(Bryant).) A perpetrator and an aider and abettor are equally
guilty in that they are both criminally liable. (Ibid.)
Even so, the “equally guilty” language could be misleading
if the defendant might be guilty of different crimes and the jurors
interpret it to preclude such a finding. (Bryant, supra, 60 Cal.4th
at p. 433.) That is, while an aider and abettor may be criminally
liable for acts not his or her own, the aider and abettor’s guilt
may be “based on a combination of the direct perpetrator’s acts
and the aider and abettor’s own acts and own mental state.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1117.) “ ‘[O]nce it is
proved that “the principal has caused an actus reus, the liability
of each of the secondary parties should be assessed according to
his [or her] own mens rea.” ’ ” (Id. at p. 1118.) If the aider and
abettor’s mental state is more culpable than the direct
perpetrator’s, his or her guilt may be greater. (Id. at p. 1117.)
“[A]n aider and abettor’s guilt may also be less than the

26 In April 2010, the Judicial Council amended CALCRIM
No. 400 to omit the “equally guilty” language. (People v. Johnson
(2016) 62 Cal.4th 600, 640.) The final sentence now reads: “A
person is guilty of a crime whether he or she committed it
personally or aided and abetted the perpetrator.” (CALCRIM
No. 400.)

49
perpetrator’s, if the aider and abettor has a less culpable mental
state.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164.)
In People v. Samaniego, supra, 172 Cal.App.4th at page
1162, two defendants went to kill the victims, but no
eyewitnesses saw the actual shooting, so no evidence established
which defendant was the direct perpetrator. Samaniego, at page
1165, concluded that CALCRIM No. 400 was misleading as
applied to the unique factual circumstances, although it also
noted that the “equally guilty” language is “generally correct in
all but the most exceptional circumstances.”
In People v. Nero (2010) 181 Cal.App.4th 504, the theory
against the aider and abettor was she handed a knife to the
defendant, who used it to kill the victim. The jury asked the trial
court if an aider and abettor’s guilt could be less than the
perpetrator’s guilt. The trial court did not respond in the
affirmative, as it should have. Instead, it reread the instruction,
which included the “equally guilty” language.27 (Id. at p. 518.)
The jurors confirmed the instruction answered their question and
found both defendants guilty of second degree murder. The Court
of Appeal concluded that the trial court improperly instructed the
jury with the “equally guilty” language. (Ibid.)
Here, as to Cerda, the issue remains relevant only to the
convictions we are affirming, counts 15 to 24 regarding the
Morning Circle incident. As to those counts, the jury found that
Cerda personally used a gun during that incident, i.e., Cerda was
the shooter and the actual would-be killer. Therefore, Cerda was

27 The trial court in People v. Nero, supra, 181 Cal.App.4th at
page 512, instructed the jury with CALJIC No. 3.00, which is the
equivalent of CALCRIM No. 400.

50
the direct perpetrator. Under these circumstances and the
evidence we have detailed above, the jury would not have found
that Cerda had a less culpable mental state than Johnson.
Moreover, our California Supreme Court has found that
CALCRIM No. 401, which was given here, resolves any potential
confusion caused by CALCRIM No. 400. CALCRIM No. 401
required proof that the aider and abettor must (1) know of the
perpetrator’s unlawful purpose, (2) intend to facilitate or assist
that unlawful purpose, and (3) act in some manner that does
assist or facilitate the unlawful purpose. Notwithstanding the
“equally guilty” language of CALCRIM No. 400, CALCRIM
No. 401 advised that aider and abettor liability must be
predicated on the state of mind of the aider and abettor, and the
extent to which he knew of and intended to facilitate the purpose
contemplated by the perpetrator. (See People v. Mejia (2012) 211
Cal.App.4th 586, 625.) CALCRIM No. 401 thus clarified that
culpability was not based on the mental state of the direct
perpetrator alone.
Accordingly, if the trial court omitted the “equally guilty”
language from CALCRIM No. 400, we are convinced beyond a
reasonable doubt the jury verdicts would have been the same.
(See generally People v. Johnson, supra, 62 Cal.4th at p. 641.)
VI. Shooting at an occupied house as a lesser offense
The natural and probable consequences theory was based
on the target offense of shooting at an occupied house, in
violation of section 246. Cerda contends all the convictions
predicated on the natural and probable consequences doctrine
must be reversed because the trial court failed to give the jury an
opportunity to convict him of shooting at an occupied house as a

51
lesser included offense. To the extent this contention survives,
we reject it.
Shooting at an occupied house is not a necessarily included
offense of murder or attempted murder. A crime is a necessarily
included offense of another crime if all elements of the lesser
offense are included in the elements of the greater offense.
(People v. Martinez (2005) 125 Cal.App.4th 1035, 1042.) In other
words, if a crime cannot be committed without also necessarily
committing a lesser offense, the latter is a lesser included offense
within the former. (People v. Montoya (2004) 33 Cal.4th 1031,
1034.)
The elements of shooting at an occupied house include, as
one would expect, that the defendant fired a gun at an occupied
house. (§ 246; People v. Manzo (2012) 53 Cal.4th 880, 884–885.)
The elements of the greater offenses (murder and attempted
murder) do not include all elements of the lesser offense because
murder and attempted murder do not have to be committed by
shooting at a house. Therefore, at most, shooting at an occupied
house was merely a lesser related offense. As Cerda
acknowledges, a trial court has no sua sponte duty to instruct on
lesser related offenses. (People v. Birks (1998) 19 Cal.4th 108,
136.)
Cerda, however, invites us to fashion a new rule. He
correctly explains that when the prosecutor specifies a target
crime under the natural and probable consequences theory and
the trial court instructs on its elements, the jury is required to
determine whether it has been committed to reach a conviction
for the nontarget crime. Cerda appears to assert that the target
offense is the functional equivalent of an element of the pleaded
crime. He goes one step too far by proposing that as the

52
functional equivalent of an element of the pleaded crime, the
target crime becomes a lesser included offense of the nontarget
crime. Cerda claims that as a lesser included offense, the jury
should have been permitted to reach a separate verdict on it. We
decline to create such a new rule.
VII. Ineffective assistance of counsel
Cerda contends he was denied effective assistance of
counsel because trial counsel failed to object to the gang expert’s
testimony about a so-called “hard card” that indicated Cerda was
a gang member. Because the entries on the card had not been
made by the testifying expert himself, Cerda contends their
admission violated California hearsay law and the federal
confrontation clause as established by Crawford v. Washington
(2004) 541 U.S. 36 (Crawford).
A. Additional facts
Detective Gillis explained that deputies collect information
on suspected gang members by routinely filling out field
identification cards, or “F.I.” cards, to track their contacts with
suspected gang members. This information includes the date and
location of the contact, the person’s name, birth date, address,
description, tattoos, driver’s license number, gang name, and
associates. An F.I. card is not always completed for every contact
with a person. A “hard card” contains a photograph of the person
and a compilation of information from F.I. cards.
Detective Gillis spoke to Cerda in the past. But he could
not recall if Cerda had ever admitted to him that he was an LMS
gang member. The detective had reviewed Cerda’s hard card and
an F.I. card completed by a deputy named Fender. According to
the hard card, Cerda was affiliated with the LMS gang and had

53
admitted membership in March or August of 2008. Detective
Gillis opined that Cerda was an LMS member based on his
“consistent association” with LMS members in an area which
they were trying to claim as their turf.
B. Confrontation clause
Admission of testimonial hearsay against a criminal
defendant violates the Sixth Amendment right to confrontation,
unless the declarant is unavailable to testify, and the defendant
had a previous opportunity to cross-examine him or her.
(Crawford, supra, 541 U.S. at pp. 53–54.) Confrontation clause
jurisprudence, especially regarding expert testimony, has evolved
since Cerda’s 2011 trial. Our Supreme Court in People v.
Sanchez (2016) 63 Cal.4th 665, 670–671 (Sanchez), has since
considered the extent to which Crawford limits an expert witness
from relating case-specific hearsay in forming an opinion.
“Sanchez ‘jettisoned’ the former ‘not-admitted-for-its-truth’
rationale underlying the admission of expert basis testimony, and
occasioned a ‘paradigm shift’ in the law.” (People v. Iraheta
(2017) 14 Cal.App.5th 1228, 1246.)
We need not discuss the intricacies of the Crawford
evolution. At the time of trial in 2011, objecting to Detective
Gillis’s testimony about the notations on Cerda’s hard card would
have been routinely and properly overruled by the trial court. At
the time, the well-established rule in California was that reliable
hearsay evidence was admissible under Evidence Code sections
801 and 802 for the non-hearsay purpose of revealing the basis
for an expert witness’s opinion and, in that context, such evidence
was not admitted for its truth. (See generally People v. Gardeley
(1996) 14 Cal.4th 605, 617–618, disapproved by Sanchez, supra,
63 Cal.4th at p. 686, fn. 13 [expert testimony may be premised on

54
material not admitted into evidence if “it is material of a type
that is reasonably relied upon by experts in the particular field in
forming their opinions” and the expert “can, when testifying,
describe the material that forms the basis of the opinion.”].)
Cerda’s defense counsel could not have been reasonably
expected to anticipate the subsequent change in law wrought by
Sanchez. Defense counsel cannot be faulted “when the pertinent
law later changed so unforeseeably that it is unreasonable to
expect trial counsel to have anticipated the change.” (People v.
Turner (1990) 50 Cal.3d 668, 703.) At the time of Cerda’s trial, it
was not reasonably foreseeable that caselaw would conclude the
hearsay upon which the gang expert relied was offered for its
truth, and the admission of such hearsay violated the
confrontation clause. Accordingly, we conclude Cerda has failed
to show that defense counsel’s performance was deficient. (See
generally Strickland v. Washington (1984) 466 U.S. 668, 687–688;
People v. Mickel (2016) 2 Cal.5th 181, 198 [ineffective assistance
of counsel requires showing (1) counsel’s deficient performance
and (2) prejudice].)

55
 DISPOSITION
The judgment is reversed as to Johnson as to all counts and
as to Cerda as to counts 1 through 14 with the direction to the
trial court to give the People the opportunity to retry them. The
true findings on the gang allegations are reversed as to all counts
as to both Johnson and Cerda with the direction to give the
People the opportunity to retry the gang allegations. In the event
the People elect not to retry Cerda, then the trial court shall
resentence him.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

56