People v. Cerda

45 Cal.App.5th 1

258 Cal.Rptr.3d 409

The PEOPLE, Plaintiff and Respondent,

v.Peter Juan CERDA et al., Defendants and Appellants.

B232572

Court of Appeal, Second District, Division 3, California.

Filed February 7, 2020

Certified for Partial Publication.^*

Ralph H. Goldsen, Goleta, under appointment by the Court of Appeal, for Defendant and Appellant Peter Juan Cerda.

Edward H. Schulman, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant Kyle Allin Johnson.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Acting Senior Assistant Attorney General, William Shin and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

HANASONO, J.^**

Defendants and appellants Peter Juan Cerda and Kyle Allin Johnson were involved in shooting into two separate houses with an assault rifle. They appealed their convictions of one count of murder and twenty-three counts of attempted premeditated murder with gang and firearm enhancements. They raised claims of insufficiency of the evidence, instructional error, ineffective assistance of counsel, cumulative error, and sentencing error. In a nonpublished opinion filed on July 18, 2013, we affirmed the judgments but vacated Johnson’s sentence and remanded for resentencing. ( People v. Cerda et al . 2013 WL 3778240 (Jul. 18, 2013, B235674) [nonpub. opn.].)

The matter was reviewed again, based on Cerda’s motion to recall the remittitur. In a nonpublished opinion filed on January 23, 2015, we reversed Cerda’s first degree murder conviction and remanded the matter to the trial court, allowing the district attorney to retry the murder charge or accept a reduction of Cerda’s conviction to second degree murder.¹ ( People v. Cerda et al . 2015 WL 305237 (January 23, 2015, B235674) [nonpub. opn.].)

While Cerda’s and Johnson’s appeals were pending, the Legislature enacted Senate Bill No. 1437 (SB 1437) (Stats. 2018, ch. 1015), which amended the laws related to malice and accomplice liability for murder. The Legislature also enacted Senate Bill No. 620 (SB 620) (Stats. 2017, ch. 682), which gave trial courts discretion to strike or dismiss certain firearm enhancements.

Now, the matter has returned to us once again. The Supreme Court granted appellants’ petition for review and has transferred the matter to us with directions to vacate our earlier decision and reconsider the cause in light of SB 1437, SB 620, and People v. Canizales (2019) 7 Cal.5th 591, 248 Cal.Rptr.3d 370, 442 P.3d 686 ( Canizales ), which limited the application of the kill zone theory for attempted murder.

In accordance with the Supreme Court’s order, we vacate the January 23, 2015 nonpublished opinion. In the published portion of this opinion, we discuss why the evidence was sufficient to support the kill zone theory of liability.

In the nonpublished portion, we reject Cerda’s and Johnson’s other arguments that (1) SB 1437 should apply to attempted murder; (2) the natural and probable consequences doctrine should not apply to attempted premeditated murder; and (3) SB 1437 should apply retroactively without complying with its petition procedure. We vacate Cerda’s and Johnson’s sentences and remand for resentencing in light of SB 620. The trial court is also to afford Johnson an opportunity to make a record that complies with the requirements of People v. Franklin (2016) 63 Cal.4th 261, 283–284, 202 Cal.Rptr.3d 496, 370 P.3d 1053 ( Franklin ). The decision regarding Cerda’s and Johnson’s previously raised claims of error remains the same as in the prior opinion. We again reverse Cerda’s first degree murder conviction because the trial court improperly permitted the jury to find that he was guilty under the natural and probable consequences doctrine. The judgments of conviction are otherwise affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

I. Facts

A. Prosecution Evidence

1. Katrina Place shooting (counts 1–14)

On February 8, 2008, 14-year-old Robert E.² was at his house on Katrina Place in Palmdale. 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., one of his sister’s friends. 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 ten shots rapidly fire. Ricardo R. heard about fifteen 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 ten gunshots fired. Mayra E. pushed him to the floor.

Adriana R. was in the dining room, sitting next to Salazar, who had accompanied her to the house. She heard about eighteen shots ricocheting off the walls. When she heard the shots, she threw Stephanie R. on the ground. Stephanie R. was 13 or 14-years-old at the time. Adriana R. was hit on the left eye by a foreign object, causing her to bleed. Glass hit the back of Mayra E.’s neck. She was sitting to the left of Salazar.

Once the shots ceased, Adriana R. crawled to the kitchen, then to the living room. Mayra E. crawled to the bathroom. Francisco E. also crawled to the bathroom. After twenty seconds, Francisco E. and Mayra E. returned to the dining room. Francisco E. saw holes in the wall and in the curtain. Salazar was bleeding, face-down on the floor. Salazar died from a gunshot to the head.

Luz E. and her husband, Sergio H., were in a bedroom when she heard about twenty gunshots. Christina E. was in another bedroom with her boyfriend, Daniel D. Four-year-old Aliza V. and 9-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 outside the window and saw a large pickup truck. He saw muzzle flashes from the 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. Daniel D. went outside to try to pursue the truck, but it was gone.

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.

2. Morning Circle shooting (counts 15–24)

About thirty minutes after the Katrina Place shooting, gunshots woke Vicente V., as he was asleep at his house on Morning Circle in Palmdale. 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, Victor, and his wife, Veronica, slept in the master bedroom with their 2-year-old daughter, Naomi, and 4-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 which was to the right of the front door. There were also holes above and through a large window which was 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.

3. Forensic evidence

Robert Keil, a senior criminalist for the Los Angeles County Sheriff’s Department, examined the house on Katrina Place after the shooting. Keil discovered sixteen bullet holes on the exterior of the house, including one on the garage, one on the frame of the front door, 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.

Other bullets penetrated the exterior on the second story of the house, including the exterior wall and the tiled roof of the house. 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 rifle commonly used by military forces. The AK-47 is included in this series of assault rifle. The projectiles from these rifles...