Filed 5/31/22 P. v. Munoz CA2/3

(on transfer from Supreme Court)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed in part, reversed in part, and remanded for further proceedings.

Law Offices of James Koester and James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

A jury convicted defendant and appellant Nicholas Anthony Munoz of shooting at an occupied motor vehicle and two counts of premeditated attempted murder, with gang and firearm enhancements. Munoz appealed, contending: (1) there was insufficient evidence to support the jury’s finding that the attempted murders were willful, premeditated, and deliberate; (2) the trial court committed instructional error regarding the premeditation allegation; and (3) the matter had to be remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to then-recent amendments to Penal Code section 12022.53.[1] This court affirmed the judgment in 2018, but vacated Munoz’s sentence and remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements. The California Supreme Court granted review and, after passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), transferred the matter back to us. We vacated our 2018 opinion and again affirmed the judgment, vacated the sentence, and remanded for the court’s exercise of its sentencing discretion. The Supreme Court again granted review. It has now transferred the matter back to us a second time for reconsideration in light of Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775). Additionally, appellant has briefed the impact on his case of another new legislative enactment, Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333).

We conclude, as we did in our previous opinions, that the evidence was sufficient to support the attempted murder convictions. After considering the impact of Senate Bill 775, we conclude that instruction on the natural and probable consequences theory was harmless beyond a reasonable doubt, and does not require reversal of the attempted murder convictions or the premeditation finding. However, we agree with the parties that certain changes made by Assembly Bill 333 apply retroactively to this case and require reversal of the section 186.22 gang enhancements, which may be retried. Our resolution of these issues does not affect Munoz’s conviction for shooting at an occupied motor vehicle. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts

Munoz was a member of the Pico Viejo criminal street gang. His cousins, codefendant James Rojas, and Rojas’s brother, Jonathan Loaiza, were also Pico Viejo members. Victor Espindola, David Carrillo, and Adrian Perez were all members of the Brown Authority criminal street gang. The Pico Viejo and Brown Authority gangs were bitter enemies. Their claimed territories overlapped, leading to ongoing violence and numerous shootings between the gangs. Both gangs claimed Streamland Park in Pico Rivera as their territory.

a. People’s evidence

(i) The shooting

On June 26, 2015, between 7:00 and 8:00 p.m., Espindola, Carrillo, and Perez, along with a woman named Daisy, went to Streamland Park in Espindola’s mother’s burgundy Yukon SUV. At the park, Carrillo spoke to some men near the baseball diamond. Espindola’s group then saw a person with whom they did not “get along.” Carrillo or Perez confronted the man, who ran up a nearby hill.

Espindola then drove the group away from the park in the SUV. Carrillo and Perez sat in the back seat, with Carrillo on the driver’s side. Daisy was in the front passenger seat. Espindola drove northbound onto Rosemead Boulevard, in the far right lane, at 10 to 15 miles per hour, looking for the man who had run up the hill. According to Espindola, his group did not intend to scare the man, but simply wished to determine why he ran from them.

Meanwhile, Rojas was driving his girlfriend’s blue Mitsubishi Galant on Rosemead Boulevard, with passengers Munoz and Loaiza. When Espindola’s SUV was parallel with the park at the top of the hill, Rojas drove up to the SUV on the driver’s side and Munoz and Loaiza fired shots directly at the SUV. Espindola heard six gunshots. He heard his window “pop” and a gunshot hit the car door, and then Rojas’s Mitsubishi sped off. Espindola briefly continued driving on Rosemead until Carrillo said he had been hit, and lost consciousness. Espindola made a U-turn and drove Carrillo to the hospital. According to Espindola, he was surprised by the shooting and did not know why the assailants shot at his SUV. No one in Espindola’s group was armed, and they did not display guns or shoot at anyone. The whole incident transpired very quickly.[2]

Carrillo was shot in the stomach and underwent surgery at the hospital.

(ii) The accident

Rojas drove from the shooting scene and attempted to enter the 60 Freeway at an excessive speed, causing the Mitsubishi to crash. Motorist Cynthia Arredondo observed the Mitsubishi tumble down an embankment by the Rosemead on-ramp, landing on its roof. Arredondo pulled over and called 911, while her boyfriend attempted to render aid. Munoz was partially pinned inside the car and was calling for help; he eventually managed to free himself. Loaiza, who had been seated in the front passenger seat, was deceased. Rojas was outside the car, talking on a cellular telephone. When Arredondo asked Rojas whether everyone was okay, he responded, “ ‘I killed my brother.’ ” He also said someone had been chasing them. Within three minutes, before emergency personnel or deputies arrived, a car picked Rojas up from the accident scene.

(iii) The investigation

Two firearms were found outside the Mitsubishi at the accident scene: a nine-millimeter Sig Sauer with an empty magazine, and a .380-caliber Lorcin semiautomatic pistol, loaded with a bullet in the chamber and a magazine containing five live cartridges. At the shooting scene, which was approximately a half-mile from the accident scene, deputies recovered a bullet fragment, four fired nine-millimeter cartridge cases, and one fired .380-caliber cartridge case. Espindola’s SUV bore five bullet holes, and five bullet fragments were recovered from the area between the vehicle’s exterior and the interior panel. Forensic examination revealed that the .380-caliber cartridge case had been fired from the .380-caliber Lorcin gun found at the accident scene. Munoz’s DNA matched DNA found on the .380-caliber Lorcin gun. The four expended nine-millimeter cartridge cases and four of the bullet fragments had been fired from the Sig Sauer gun.[3] Two of the bullet holes in the SUV were made by nine-millimeter bullets. A Pittsburgh Pirates baseball cap that had been ejected from the Mitsubishi was on the ground at the accident scene.

Rojas’s Mitsubishi bore no evidence of bullet strikes, and no evidence suggested the occupants of the SUV shot at the Mitsubishi.

(iv) Munoz’s jail conversation with a confidential informant

On June 29, 2015, Munoz was placed in a jail cell with a confidential informant. Their conversation was recorded and played for the jury. Munoz stated he was a Pico Viejo gang member with the moniker “Lil Scrappy.” He described the incident as follows.[4] Some “fools,” whom he believed to be Brown Authority gang members, had been chasing and attempting to shoot at or harm his cousin and fellow gang member, Loaiza. Loaiza was an “ace” and a “straight rider,” that is, an active gang member known for committing crimes for the gang. Munoz and Loaiza shot at the Brown Authority gang members, with Munoz firing a .380 and Loaiza firing a nine-millimeter firearm. Munoz’s gun jammed after he fired one shot. He did not think his shot had hit anyone because there was no one in the back seat. Loaiza, however “fucken served them, boom, boom, boom, boom, boom.”[5] Although it was dark, Munoz “just knew it was them, though . . . I just knew it.” When Munoz’s group fled, the other car chased them. Munoz thought the Brown Authority gang members had guns and tried to pull them. When the accident occurred, he and Loaiza were not wearing seat belts.

(v) Gang expert’s testimony

Los Angeles County Sheriff’s Detective Stephen Valenzuela testified as the prosecution’s gang expert, regarding the Pico Viejo gang’s membership, origins, territory, primary activities, symbols, “code of silence,” and predicate offenses.[6] Pico Viejo was one of the most violent gangs in the Pico Rivera area. There had been numerous shootings between the Pico Viejo and Brown Authority gangs, and incidents of violence in Streamland Park. In Valenzuela’s opinion, Munoz, Loaiza, and Rojas were Pico Viejo gang members.[7] The gang used the Pittsburgh Pirates “P” as one of its symbols, and the Pittsburgh Pirates baseball cap found at the accident scene was commonly worn by Pico Viejo gang members. Valenzuela opined that Espindola and Carrillo were members of the Brown Authority gang.

When given a hypothetical based on the evidence adduced at trial, Valenzuela opined that the shooting was committed for the benefit of, and in association with, the Pico Viejo gang. The shooting benefited the gang by showing the community and other gangs that Pico Viejo gang members would “do anything to protect their borders.” Moreover, the gang members were acting together, looking for rivals. Such conduct would instill fear in the community and in gang rivals, thereby making them afraid to report crimes to police, “further[ing] the stranglehold that gangs and gang violence have in the community.”

b. Defense evidence

(i) Testimony from witnesses at Streamland Park

Robert Mendoza and Savaltore Dominic Mendoza[8] were both at Streamland Park on the evening of June 26, 2015,[9] preparing the baseball fields for a tournament the next morning. Mariah Ginez and her boyfriend were also at the park at that time. Robert saw a male Hispanic walking around the park, apparently looking for something. Shortly thereafter, a maroon SUV pulled into the parking lot. Two Hispanic men exited the SUV and began “hanging out” with the first man at the baseball diamond’s backstop. One of the men asked Robert whether there were any games that night, whether Robert knew a former Little League president, and whether anyone from Pico Viejo was at the park. Robert said only the Little League coaches were present. The men returned to the SUV. Shortly thereafter, one of the men returned to the field with a baseball bat and yelled, “ ‘Are you guys from Pico Viejo?’ ” Robert and Savaltore ignored them and moved to another area of the field. Savaltore phoned his wife and asked her to call 911. The SUV picked up the man with the bat, and “peeled out” of the parking lot.

Ginez observed a man at the top of a small hill on the back side of the park. The driver of the SUV yelled at the man on the hill, “this is my barrio,” or similar words. The men seemed to be arguing, and the man from the SUV said, “let’s go one-on-one.” However, the man from the SUV did not attempt to run up the hill after the other individual.

According to Robert and Savaltore, other than the baseball bat, the men from the SUV did not have any visible weapons, nor, according to Ginez, did the man who yelled at the person on the small hill.

Within five to 10 minutes, Robert, Savaltore, and Ginez heard gunshots nearby.

(ii) Rojas’s testimony

Rojas testified in his own defense. His family had longstanding ties to the Pico Viejo gang. In June 2015 he and his family were living in Bell Gardens. On the night of the shooting, Loaiza called Rojas and said he was at Streamland Park to meet a girl, but did not feel safe and thought it might be a set up. Rojas drove to the park and located Loaiza, who was with Munoz. Rojas picked both men up and began driving home. When he made a right turn onto Rosemead, he saw a burgundy SUV on the shoulder. Loaiza said, “ ‘Those are those fools right there.’ ” As Rojas neared the SUV, he saw the SUV’s windows rolling down. Rojas “hit the gas.” Almost immediately, Rojas heard gunshots and ducked. He could not tell whether the shots came from inside or outside of his vehicle. He continued down Rosemead Boulevard and saw, in his rearview mirror, that the other car was behind him, driving fast. Rojas sped up and lost control of his car, which plunged down an embankment, flipping several times. He had not been looking for anyone when he pulled onto Rosemead Boulevard; he had been planning to drive home. When Arredondo approached to help, he told her to leave because “we just got chased.” He fled the scene because he was scared. He had gone to the park to protect his little brother; he had not come prepared for violence; he had not known, and had no reason to believe, that Loaiza had a weapon or that there were guns in the car. He denied being an active gang member, but admitted a prior association with the Pico Viejo gang.

c. Verdict and sentencing

After being instructed on several theories of guilt, including the natural and probable consequences doctrine, the jury found Munoz guilty of the attempted willful, deliberate, and premeditated murders of Carrillo and Espindola (§§ 664, subd. (a), 187, subd. (a)) and of shooting at an occupied motor vehicle (§ 246).[10] As to each offense, the jury further found Munoz personally and intentionally used and discharged a firearm (§ 12022.53, subds. (b), (c)); a principal personally and intentionally used and discharged a firearm, proximately causing great bodily injury to Carrillo (§ 12022.53, subds. (b), (c), (d), (e)(1)); and the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang. (186.22, subd. (b)(1)).[11] It found not true the allegation that Munoz fired the shot that hit one of the victims. The trial court sentenced Munoz to two consecutive life terms, plus 50 years to life. It ordered him to pay victim restitution and imposed a restitution fine, a suspended parole revocation restitution fine, a court operations assessment, and a criminal conviction assessment.

2. Prior appeals

As noted, Munoz appealed, raising claims of insufficiency of the evidence and instructional error, and requesting remand to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements pursuant to then-recent amendments to section 12022.53. In an unpublished opinion issued on October 11, 2018, we affirmed Munoz’s convictions but vacated his sentence and remanded to allow the trial court to exercise its discretion to strike or dismiss the firearm enhancements (see § 12022.53, subd. (h).) Our Supreme Court granted review and deferred further action pending disposition of People v. Mateo (S232674). Mateo presented the question of whether, to convict an aider and abettor of attempted willful, deliberate, and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense.

Meanwhile, the Legislature enacted Senate Bill 1437, which, effective January 1, 2019, amended the law governing application of the natural and probable consequences doctrine as it related to murder. The Supreme Court thereafter transferred this matter back to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill 1437.

We did so, and again affirmed in a partially published opinion issued on September 6, 2019. In accordance with the law in effect at the time, we concluded that Senate Bill 1437 did not apply to attempted murder, and did not apply retroactively to nonfinal judgments on direct appeal. In the unpublished portion of the opinion, we again rejected Munoz’s contentions of instructional error and evidentiary insufficiency, and again remanded for resentencing on the firearm enhancements. (See People v. Munoz (2019) 39 Cal.App.5th 738, vacated by People v. Munoz, Jan. 5, 2022, S258234.)

On November 26, 2019, our Supreme Court again granted review pending resolution of People v. Lopez, S258175.[12] While the appeal was pending, the Legislature enacted Senate Bill 775 and Assembly Bill 333, both effective January 1, 2022. On January 5, 2022, the Supreme Court transferred the matter back to us with directions to vacate our 2019 decision and reconsider the cause in light of Senate Bill 775. We have vacated our 2019 opinion, and have considered supplemental briefing from the parties, including regarding the effect of Assembly Bill 333 on Munoz’s convictions. (See Cal. Rules of Court, rule 8.200(b)(2).)

DISCUSSION

1. The attempted murder convictions

a. The evidence was sufficient to support the jury’s finding that the attempted murders were willful, premeditated, and deliberate

Munoz contends the evidence was insufficient to support the jury’s findings that the attempted murders were willful, deliberate, and premeditated. He argues that the “overwhelming force of the evidence” showed nothing more than a spontaneous and impulsive shooting occurring when Munoz’s group unexpectedly encountered Espindola’s group in the SUV. He is incorrect.

When determining whether the evidence was sufficient to sustain a criminal conviction, we “ ‘ “review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. [Citations.]” ’ ” (People v. Salazar (2016) 63 Cal.4th 214, 242.) We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Medina (2009) 46 Cal.4th 913, 919.) Reversal is not warranted unless it appears “ ‘ “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) The same standard of review applies when the prosecution relies primarily on circumstantial evidence. (Salazar, at p. 242.)

Attempted murder requires the specific intent to kill and commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Perez (2010) 50 Cal.4th 222, 229.) Premeditation and deliberation require more than a showing of intent to kill. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.) An attempted murder is premeditated and deliberate when it occurs as the result of preexisting thought and reflection, rather than an unconsidered or rash impulse. (People v. Pearson (2013) 56 Cal.4th 393, 443; People v. Burney (2009) 47 Cal.4th 203, 235.) “Deliberate” means formed, arrived at, or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. (People v. Houston (2012) 54 Cal.4th 1186, 1216.) “Premeditation” means thought over in advance. (People v. Solomon (2010) 49 Cal.4th 792, 812; People v. Disa (2016) 1 Cal.App.5th 654, 664.) However, to prove a killing was premeditated and deliberate, it is “ ‘not . . . necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.’ [Citation.]” (Disa, at p. 665.) The “ ‘ “process of premeditation and deliberation does not require any extended period of time.” ’ ” (People v. Salazar, supra, 63 Cal.4th at p. 245.) “ ‘ “ ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ [Citations.]” [Citation.]’ ” (Houston, at p. 1216.)

A reviewing court typically considers three categories of evidence when determining whether a finding of premeditation and deliberation is adequately supported: planning activity, motive, and manner of killing. (People v. Houston, supra, 54 Cal.4th at p. 1216; People v. Anderson (1968) 70 Cal.2d 15, 26–27; People v. Gonzalez (2012) 54 Cal.4th 643, 663–664.) These so-called Anderson factors are not exclusive, but are a framework to guide the assessment of whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. (Gonzalez, at p. 663; People v. Solomon, supra, 49 Cal.4th at p. 812.)

Here, there was evidence of all three Anderson factors. First, the evidence demonstrated a motive for the shooting. Munoz and Loaiza were members of the Pico Viejo gang, and Espindola, Carrillo, and Perez were members of Pico Viejo’s “bitter enem[y],” Brown Authority. In his conversation with the confidential informant, Munoz stated he believed the victims were Brown Authority members, who had chased or shot at his cousin, Loaiza. The gang expert testified that gang members are expected to protect their territory, including “eliminating rivals in their territory.” Both gangs claimed Streamland Park as their territory. (See People v. Romero (2008) 44 Cal.4th 386, 401 [evidence of motive shown where victim and defendant were members of rival gangs, and killing a gang rival would elevate the killer’s status]; People v. Martinez (2003) 113 Cal.App.4th 400, 413 [motive for shooting involved gang rivalry]; People v. Rand (1995) 37 Cal.App.4th 999, 1001; People v. Wells (1988) 199 Cal.App.3d 535, 541 [gang rivalry was motive for shooting where defendant and victim were members of rival gangs].)

Second, there was evidence of planning, in that both Loaiza and Munoz brought loaded guns with them in the car. (People v. Salazar, supra, 63 Cal.4th at p. 245 [“defendant brought a loaded gun with him to the Beef Bowl, demonstrating preparation”]; People v. Lee (2011) 51 Cal.4th 620, 636 [“defendant brought a loaded handgun with him on the night [of the killing], indicating he had considered the possibility of a violent encounter”]; People v. Romero, supra, 44 Cal.4th at p. 401 [evidence of planning shown by facts defendant brought gun to a store and shot victim in the back of the head]; People v. Wells, supra, 199 Cal.App.3d at pp. 540–541 [carrying concealed, loaded handgun “is consistent with intent to kill a rival gang member even it if does not provide solid evidence of prior planning to kill this particular victim”].)

And, third, the manner of killing showed premeditation. Loaiza fired multiple shots directly at the victims’ vehicle; Munoz attempted to do so, but his gun jammed. Thus, the men acted in concert to attack their perceived enemies. According to Espindola’s statements, the shooting was an ambush, and according to both him and Carrillo, no one in the SUV shot at the Mitsubishi or had a gun. This account was corroborated by the fact that the SUV was hit with multiple bullets, whereas the Mitsubishi was not. (See People v. Bolin (1998) 18 Cal.4th 297, 332 [firing multiple gunshots at victims supported finding of premeditation]; cf. People v. Romero, supra, 44 Cal.4th at p. 401 [evidence of execution style killing, without a struggle by the victim, indicates premeditation and deliberation].) This unprovoked shooting at close range suggested premeditation and deliberation. In short, the evidence was sufficient. (See Romero, at p. 401; People v. Boatman (2013) 221 Cal.App.4th 1253, 1266.)

Munoz argues that the “only evidence” relating to his and Loaiza’s actions immediately preceding the shooting was Rojas’s testimony that he picked the men up and they unexpectedly encountered the SUV; there was “basically no evidence” of planning; and the shooting was “spontaneous” and reflexive. Not so. Munoz’s statements to the confidential informant suggested the encounter was not unexpected: his group went looking for the Brown Authority gang rivals who had accosted Loaiza, or at the very least, recognized them and shot when the two cars passed by. Loaiza’s statement upon seeing the SUV, “ ‘those are those fools right there,’ ” likewise demonstrated such recognition. The fact both Munoz and Loaiza coordinated the attack was inconsistent with a finding the shooting was unplanned and spontaneous, as was the fact they each brought a loaded gun in the car. Further, Espindola testified his group was unarmed and did not shoot, undercutting the argument that Munoz’s and Loaiza’s actions were simply reflexive. Even assuming Munoz’s group was not seeking out Espindola’s group, the evidence was sufficient to show that, once they happened upon them, the shooting was premeditated, willful, and deliberate. “Premeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849; People v. Rand, supra, 37 Cal.App.4th at pp. 1001–1002 [sufficient evidence of premeditation where defendant committed a drive-by shooting, aiming at stranded persons whom he believed were rival gang members; “[t]he law does not require that an action be planned for any great period of time in advance” and a “ ‘cold and calculating decision to kill can be arrived at very quickly’ ”].)

b. Instruction on the natural and probable consequences theory was harmless beyond a reasonable doubt

Munoz contends that instruction on the natural and probable consequences doctrine, coupled with the prosecutor’s argument regarding that theory, amounted to reversible error.

(i) 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.) 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.

After trial and this court’s previous opinions in this case, Senate Bill 775 changed the law in several respects. Two are relevant here. First, Senate Bill 775 added subdivision (g) to section 1170.95. That subdivision provides, “A 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.” Subdivision (g) supersedes Gentile’s holding that Senate Bill 1437’s ameliorative provisions do not apply on direct appeal (see People v. Gentile, supra, 10 Cal.5th at p. 839), and allows Munoz to challenge the validity of his 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. Accordingly, prior to enactment of Senate Bill 775, California appellate courts concluded that section 1170.95 did not extend to convictions for those offenses. (See 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 subd. (d)(1); People v. Porter (2022) 73 Cal.App.5th 644, 651–652; People v. Coley (2022) 77 Cal.App.5th 539, 544; see Stats. 2021, ch. 551, § 1 [Senate Bill 775 clarifies “that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories”].) 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.)

Under In re Estrada (1965) 63 Cal.2d 740, 745 to 746, we assume that, absent contrary evidence, an amendment reducing punishment for a crime applies retroactively to all nonfinal judgments. (See also People v. Brown (2012) 54 Cal.4th 314, 323; People v. Garcia (2018) 28 Cal.App.5th 961, 973.) Such is the case with Senate Bill 775. (People v. Montes (2021) 71 Cal.App.5th 1001, 1006–1007; People v. Porter, supra, 73 Cal.App.5th at p. 652.) For retroactivity purposes, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th 264, 306.) Munoz’s direct appeal was not final when Senate Bill 775 took effect, and therefore the amendments apply retroactively to him.

(ii) Harmless error

In accordance with the law in effect at the time, Munoz’s jury was instructed that he could be found guilty of murder under three different theories: as the actual perpetrator (CALCRIM Nos. 400, 600); as a direct aider and abettor (CALCRIM No. 401); and under the natural and probable consequences doctrine (CALCRIM No. 402). As to the latter theory, the jury was instructed, in pertinent part: “Under certain circumstances, a person who is guilty of one crime may also be guilty of other crimes that were committed at the same time. [¶] To prove that the defendant is guilty of attempted murder under the doctrine of natural and probable consequences, the People must prove that: [¶] 1. The defendant is guilty of shooting at an occupied vehicle; [¶] 2. During the commission of shooting at an occupied vehicle a coparticipant in that shooting at an occupied vehicle committed the crime of attempted murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of attempted murder was a natural and probable consequence of the commission of the shooting at an occupied vehicle. [¶] . . . [¶] A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.” The jury was not instructed that it had to unanimously agree on a particular theory.

As our discussion of Senate Bills 1437 and 775 makes clear, instruction on the natural and probable consequences doctrine was improper under the amended law. We turn, then, 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.” (People v. 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; People v. Stringer (2019) 41 Cal.App.5th 974, 984.) Aledamat 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.” (Aledamat, supra, 8 Cal.5th at p. 9.) “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.” ’ [Citation.]” (People v. Thompkins, supra, 50 Cal.App.5th at p. 401, citing People v. Merritt (2017) 2 Cal.5th 819, 832.) In Merritt, the trial court neglected to instruct on most of the elements of robbery. (Merritt, at p. 823.) Our Supreme Court found this serious error harmless under the Chapman standard. (Id. at p. 822.) The defendant’s defense was “solely that he was not the perpetrator.” (Ibid.) He conceded that the actual perpetrator, “whoever he was, was guilty of robbery, i.e., that all of the elements of robbery were present.” (Ibid.) “Because of this concession and other circumstances, the error, serious though it was, was harmless beyond a reasonable doubt.” (Ibid.) The evidence that the robberies occurred was overwhelming and uncontroverted: both victims provided unchallenged testimony that they were robbed, and the crimes were caught on videotape. (Id. at p. 832.) “The jury resolved the only contested issue in the prosecution’s favor when it found defendant was the perpetrator.” (Ibid.)

Aledamat suggests the Merritt approach is a permissible method of evaluating alternative-theory error. Aledamat began its discussion of the appropriate harmless error standard with a discussion of Merritt. (Aledamat, supra, 8 Cal.5th at p. 9.) It then rejected the argument that “application of Chapman is different for alternative-theory error than for other misdescriptions of the elements of the charged offense,” reasoning that the “same beyond a reasonable doubt standard”—i.e., that used in Merritt—applied. (Ibid.) Later, in explaining that its earlier statements in In re Martinez (2017) 3 Cal.5th 1216 and People v. Chiu (2014) 59 Cal.4th 155, were not contrary to its Aledamat holding, the court explained: “Chiu and Martinez were only a specific application of the more general reasonable doubt test stated in cases like Neder [v. United States (1999) 527 U.S. 1] and Merritt, supra, 3 Cal.5th 819.” (Aledamat, at p. 12.)

Here, applying the Merritt test, we conclude instruction on the natural and probable consequences doctrine was harmless beyond a reasonable doubt. The prosecutor urged in his opening argument that the evidence showed Munoz and Loaiza had both committed premeditated attempted murder. He then argued that the natural and probable consequences doctrine was a “completely separate way you can get to attempted murder.” Under that theory, the prosecutor explained, Munoz could be guilty of attempted murder whether or not he intended to hit the vehicle’s occupants, and even if he did not intend to kill. He stated, “These are alternative theor[ies], both of which lead to the conclusion of guilt in this case.”

Munoz’s counsel, in his closing argument, relied exclusively on the theory that Munoz shot in perfect or imperfect self-defense. Counsel did not suggest Munoz lacked the intent to kill. Instead, counsel argued: “The district attorney spoke [about] a lot of issues and a lot of what I would term non-issues as far as my case is concerned. Because I really only have one issue in this case as far as Mr. Munoz is concerned. And that is did he act in complete self-defense or what we call imperfect self-defense. And there is no issue as to Mr. Munoz regarding natural and probable since he’s alleged and actually he’s admitted to being the shooter. . . . [¶] The district attorney covered a lot of ground, things that are really not being disputed; just things that had been proven beyond a reasonable doubt. But he really has to do that. His job is to prove this case beyond a reasonable doubt. . . . [¶] And one of the things he has to prove to you beyond a reasonable doubt is that Mr. Munoz did not act in self-defense or what we call imperfect self-defense.”

In closing argument, the prosecutor did not again reference the natural and probable consequences theory.

In line with the defense theory, the jury was instructed on both forms of self-defense. CALCRIM No. 604 instructed that Munoz acted in imperfect self-defense if, among other things, he took at least one direct but ineffective step toward killing a person and “intended to kill when he acted.” (Italics added.) As to perfect self-defense, CALCRIM No. 505 instructed Munoz was not guilty of attempted murder “if he was justified in attempting to kill someone in self-defense or defense of another.” (Italics added.)

The jury found–under properly given instructions–that Munoz was a direct perpetrator, not merely an accomplice: it found the firearm enhancement allegations true, i.e., that he personally and intentionally used and discharged a firearm. These findings were supported by overwhelming evidence, including Munoz’s statements to the confidential informant, DNA evidence, and ballistics evidence.[13] Defense counsel appropriately conceded that Munoz was one of the shooters.

In light of the foregoing, the natural and probable consequences instruction could have impacted the verdict in only one respect: if the jury relied upon it to find Munoz guilty of attempted murder even if it could not determine that he had the intent to kill. But, the defense conceded, for all practical purposes, that Munoz had the intent to kill. Counsel’s argument made clear that the defense was not challenging the prosecutor’s theory except on the “one issue” of self-defense. By relying solely on the self-defense theories, Munoz essentially acknowledged that he had the intent to kill: the instructions given required that, to succeed on either perfect or imperfect self-defense, Munoz had to have acted with the intent to kill. Counsel never asserted that Munoz lacked the intent to kill. And, indeed, such an argument would have been weak at best, given the evidence. Munoz’s statements to the confidential informant indicated that he believed that the people in the SUV were from the rival Brown Authority gang, purposely shot at the car from relatively close range, and intended to fire more shots, but his gun jammed. Under these circumstances, the evidence of his intent to kill was not only overwhelming, but was also undisputed. It is clear beyond a reasonable doubt that the natural and probable consequences instruction and argument did not taint the verdict. (See People v. Baratang, supra, 56 Cal.App.5th at p. 263; People v. Thompkins, supra, 50 Cal.App.5th at p. 399.)[14]

c. The premeditation instruction

We likewise find no prejudicial error in regard to the instruction on premeditation and deliberation. The trial court instructed the jury with CALCRIM No. 601. It stated that, to establish the premeditation allegation, the People had to prove that either Munoz, Rojas, or Loaiza, or all of them, committed the attempted murder willfully and with deliberation and premeditation. During argument, the prosecutor explained, “What you’re looking at is not just whether the individual defendant formed that specific intent but whether any of the principals, meaning defendant Rojas, defendant Munoz, or the decedent, Jonathan Loaiza, committed that attempted murder with specifically the intent to do so willfully, deliberately, and with premeditation.”

In his original briefing, Munoz argued that the instruction should have stated that the premeditation allegation could be found true as to him only if premeditated attempted murder was a natural and probable consequence of the target offense of shooting at an occupied motor vehicle. As explained ante, we concluded that Senate Bill 1437 did not apply to his case. We further concluded that based on binding California Supreme Court precedent, the instruction was not erroneous. (See People v. Lee (2003) 31 Cal.4th 613, 616; People v. Favor, supra, 54 Cal.4th at p. 872.)

In addition to extending Senate Bill 1437’s reach to attempted murder and providing for application of the amended law on direct appeal, Senate Bill 775 amended section 1170.95, subdivision (a), to read: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts” under specified conditions. (§ 1170.95, subd. (a), italics added.)

Assuming arguendo that the premeditation instruction amounts to a “theory under which malice is imputed” based solely on a defendant’s participation a crime—a question we do not decide—the instruction was nonetheless harmless beyond a reasonable doubt. Based on the evidence presented, there was simply no way for the jury to have found Loaiza or Rojas premeditated but Munoz did not, and imputed their mental state to him. The jury acquitted Rojas of shooting at an occupied vehicle and deadlocked on the attempted murder charges; therefore, it did not find Rojas actually premeditated. There was no separate evidence regarding Loaiza’s mental state, and his and Munoz’s actions were nearly identical: they both fired upon the SUV at the same time. Munoz only fired once because his gun jammed, whereas Loaiza fired multiple rounds, but this fact, on the evidence presented, could not realistically have resulted in the jury attributing differing mental states to the two men. It is therefore clear beyond a reasonable doubt that the premeditation instruction, even if erroneous, did not taint the verdicts.[15]

2. The gang enhancements

a. Assembly Bill 333

“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 Cal.App.5th 327, 344; § 186.22, subd. (b)(1).) One of the elements 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 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); see People v. Lopez, supra, 73 Cal.App.5th at p. 345.)

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 that clarifies what it means to benefit the gang: “As used in this chapter, to benefit, promote, further or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.” (§ 186.22, subd. (g).)[16]

b. Assembly Bill 333 requires reversal of the gang enhancements

Munoz contends Assembly Bill 333’s amendments to section 186.22 apply retroactively to his case and require reversal of the gang enhancements, both because the jury was not instructed in accordance with the new law and because the evidence was insufficient to prove certain newly added elements. The People concede that reversal is required, and we agree.

There is no dispute that Munoz is entitled to the ameliorative benefits of the amendments to section 186.22. Assembly Bill 333 does not directly reduce punishment for a gang enhancement, but the Estrada rule also applies where “an enhancement has been amended to redefine to an appellant’s benefit the conduct subject to the enhancement” (People v. Lopez, supra, 73 Cal.App.5th at p. 344), or modifies the elements of a penalty enhancement (People v. Roberts (1994) 24 Cal.App.4th 1462, 1465). Assembly Bill 333 changed the elements of the gang enhancement in a way that potentially favors Munoz, and nothing in the legislation rebuts the Estrada inference of retroactivity. The relevant amendments to section 186.22 therefore apply retroactively to Munoz’s case, which is not yet final. (See 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; Lopez, at pp. 343–344.)

Unsurprisingly, not all of the elements required under amended section 186.22 were established when this case was tried in 2017. First, amended subdivision (f) has been interpreted to require that the predicate crimes were committed by two or more gang members acting in concert, rather than by a lone gang member. (See People v. Delgado, supra, 74 Cal.App.5th at pp. 1088–1089; People v. Lopez, supra, 73 Cal.App.5th at pp. 344–345.) Here, the People presented evidence of two predicate offenses: court documents showing Reginald Sotello committed assault with a firearm on March 10, 2014, and Mark Anthony Amaro committed robbery on November 24, 2014. The People’s gang expert testified that both men were Pico Viejo gang members. However, there was no evidence that Sotello and Amaro committed these offenses along with other gang members, as opposed to on their own. As Lopez, at pages 344 to 345, explained: “The evidence that these gang members individually engaged in a pattern of criminal gang activity was sufficient at the time of trial to meet the requirements of section 186.22, but [Assembly Bill 333 requires] the prosecution to prove collective, not merely individual, engagement in a pattern of criminal gang activity.” (See also Delgado, at p. 1089 [legislative history of Assembly Bill 333 supports the conclusion that the prosecution must prove two or more gang members committed each predicate in concert].) No evidence was admitted at trial to establish that the Sotello and Amaro crimes constituted collective criminal activity by the Pico Viejo gang. (See Lopez, at p. 345.) Further, the jury was instructed that the pattern of criminal gang activity could be established by gang members “whether acting alone or together.”

Further, as the People appropriately acknowledge, there was no evidence that the predicate crimes commonly benefited the gang, or did so in a way that was more than reputational. (See § 186.22, subd. (e)(1); People v. Rodriguez, supra, 75 Cal.App.5th at pp. 822–823; People v. E.H., supra, 75 Cal.App.5th at p. 479; People v. Sek (2022) 74 Cal.App.5th 657, 665.) Indeed, the jury was instructed, in accordance with the law in effect at the time, that the predicate offenses did not have to be gang-related.[17] Given these evidentiary deficits, 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] “The proper remedy for this type of failure of proof—where newly required elements were ‘never tried’ to the jury—is to remand and give the People an opportunity to retry the affected charges.” (People v. E.H., supra, 75 Cal.App.5th at p. 480; see People v. Delgado, supra, 74 Cal.App.5th at p. 1091; People v. Figueroa (1993) 20 Cal.App.4th 65, 71–72 & fn. 2.)

3. Resentencing on remand

When the trial court sentenced Munoz in July of 2017, imposition of a section 12022.53 firearm enhancement was mandatory and the trial court lacked discretion to strike it. (See People v. Franklin (2016) 63 Cal.4th 261, 273.) Accordingly, the trial court imposed consecutive terms of 25 years to life on counts 1 and 2 pursuant to section 12022.53, subdivisions (d) and (e)(1).[19] Effective January 1, 2018, the Legislature amended section 12022.53, subdivision (h) to give trial courts authority to strike section 12022.53 firearm enhancements in the interest of justice. (Sen. Bill No. 620 (2017–2018 Reg. Sess.).) Munoz contended, in his original appeal, that this legislation applied to his non-final case, which had to be remanded to allow the trial court to exercise its discretion to strike the firearm enhancements. (See, e.g., People v. Watts (2018) 22 Cal.App.5th 102, 119.) In our two prior opinions, we agreed and remanded for resentencing. As we are now reversing the gang enhancements and vacating Munoz’s sentence, resentencing will be required either upon remand, should the People opt not to retry the gang enhancements, or after any retrial. At that time, the trial court may exercise its sentencing discretion in regard to the firearm enhancements. We express no opinion about how the court’s discretion should be exercised.

DISPOSITION

The gang enhancements are reversed and Munoz’s sentence is ordered vacated. The matter is remanded for the trial court to provide the People with an opportunity to retry the section 186.22, subdivision (b) gang enhancements under the law as amended by Assembly Bill 333. At the conclusion of any such retrial, or on remand if the People elect not to conduct such a retrial, the court is directed to conduct a full resentencing of appellant and exercise its discretion on the firearm enhancement under section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

[1] All further undesignated statutory references are to the Penal Code.

[2] Espindola described the incident to detectives in a July 29, 2015 recorded interview that was played for the jury, and again in a second, unrecorded interview with a detective shortly before trial. At trial, Espindola denied being a gang member, denied making most of the statements in the interviews, professed not to remember most of the evening’s events, and at times refused to answer questions. He did, however, confirm that no one in his group was armed or shot at Rojas’s car.

[3] The fifth bullet fragment was too small to allow for a conclusive comparison.

[4] Munoz described the incident using street slang, which was in some instances interpreted by the gang expert.

[5] According to the gang expert, “served,” in this context, means shot at.

[6] We discuss this testimony in more detail where relevant, post.

[7] Munoz had Pico Viejo-related tattoos, and had admitted his gang membership to the confidential informant, and to a detective; Valenzuela was also aware of Munoz’s membership by virtue of his own investigation into violent crimes committed by the gang. Rojas and Loaiza also had Pico Viejo-related tattoos. Photographs showed Munoz, with Loaiza, Rojas, and others, making Pico Viejo gang signs.

[8] For ease of reference, and with no disrespect, we hereinafter refer to Robert Mendoza and Savaltore Mendoza by their first names.

[9] Although the witnesses did not testify to the precise date in June, there is no dispute that their testimony related to June 26, 2015, the date of the shooting.

[10] Although there were four passengers in the Yukon, the People charged only two counts of attempted murder.

[11] The jury found Rojas not guilty of shooting at an occupied motor vehicle. It deadlocked on the vehicular manslaughter and attempted murder charges alleged as to Rojas, and the trial court declared a mistrial on those counts.

[12] In Lopez, the Court was considering whether (1) Senate Bill 1437 applied to attempted murder; and (2) to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, a premeditated attempt to murder had to have been a natural and probable consequence of the target offense. (See People v. Favor (2012) 54 Cal.4th 868.)

[13] We are not persuaded by Munoz’s argument that the jury could have readily interpreted the evidence to show he specifically intended not to kill, or only intended to shoot at the SUV but not its occupants. Munoz points to his statement to the confidential informant that he believed his shot did not actually hit anyone because there was no one in the back seat. He argues this suggests he “purposely aimed towards the rear of the vehicle in order to avoid hitting anyone inside the vehicle.” Munoz reads far too much into this statement, which cannot reasonably be read to mean that he purposefully tried to avoid hitting anyone. He made the statement in the course of a long discussion with the confidential informant about what he was likely to be charged with, possible defenses, and the strength of the evidence the police might be able to gather. Later on in the discussion, Munoz stated that the police were telling him it wasn’t looking good for “[t]hat fool that I hit.” As to his argument that the evidence could have been interpreted to show he didn’t shoot at all, but simply bragged to the confidential informant, this contention fails for at least two reasons. For one thing, a .380-caliber cartridge case was recovered from the scene, demonstrating Munoz did fire his gun. And, the jury’s true findings on the section 12022.53 firearm enhancements unequivocally demonstrate it did not adopt this view.

[14] The appellate courts disagree to some extent on the proper interpretation of Aledamat. In People v. Thompkins, a case considering a legally erroneous kill zone instruction, the court reasoned, “In assessing prejudice, Aledamat considered the likelihood that the jurors would have applied the erroneous instruction, not simply the strength of the evidence to support a guilty verdict using the correct instruction. [Citation.] This focus on the impact of the erroneous instruction rather than the strength of the evidence of guilt is central to Aledamat’s reasoning on prejudice. This is not the type of error that can be rendered harmless by ‘overwhelming’ evidence of guilt alone.” (People v. Thompkins, supra, 50 Cal.App.5th at p. 399.) “As we understand the standard of review, the question is not whether we think it clear beyond a reasonable doubt that the defendants were actually guilty . . . based on the valid theory, but whether we can say, beyond a reasonable doubt, the jury’s actual verdicts were not tainted by the inaccurate jury instruction. We focus on the likelihood that the jury relied on the kill zone instruction in reaching its verdicts, not simply the likelihood of defendants’ guilt under a legally correct theory.” (Ibid.)

People v. Glukhoy recently opined that Thompkins’s reasoning, if generically applied in all cases, “would focus the analysis through an aperture that is too narrow.” (People v. Glukhoy, supra, 77 Cal.App.5th at p. 597.) “To the extent that Thompkins can be read as requiring that its approach of focusing on the error’s impact on the verdict must be applied in all cases . . . we disagree with that view for two reasons. First, reviewing courts must ‘examin[e] the entire cause, including the evidence, and consider[ ] all relevant circumstances.’ (Aledamat, supra, 8 Cal.5th at p. 3, italics added.) And we must then ask: ‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?’ (Neder, supra, 527 U.S. at p. 18; Merritt, supra, 2 Cal.5th at p. 827, italics added.) Accordingly, there is no one way to establish harmlessness for instructional error, including alternative-theory error. Aledamat teaches as much.” (Glukhoy, at p. 597.)

We need not weigh in on these questions, because our holding is not based merely on the conclusion that the evidence was overwhelming. Instead, for the reasons we have set forth, it is clear beyond a reasonable doubt that the jurors would not have relied upon the natural and probable consequences theory, and the challenged instruction could not have tainted the verdict, an analysis accepted by both Thompkins and Glukhoy.

[15] For these reasons and those we have set forth in section 1.b.ii ante, we are not convinced by Munoz’s argument that the premeditation instruction was prejudicial because it encouraged jurors to connect Loaiza’s mens rea to his.

[16] 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, sub. (a).) The People do not agree that section 1109 is retroactive. Due to the procedural posture of this case, section 1109 has no application here, and we need not decide whether it would apply retroactively to nonfinal cases.

[17] Because reversal of the gang enhancements and remand for their potential retrial is required, we need not decide whether any of the other new elements of section 186.22 were, or were not, met.

[18] The jury was instructed that the current offense could be considered when determining whether a pattern of criminal gang activity had been proved. Munoz argues this ran afoul of Assembly Bill 333’s proviso that the currently charged offense shall not be used to establish the pattern of criminal gang activity. (§ 186.22, subd. (e)(2).) However, this instruction could have had no prejudicial effect: the jury was instructed that the pattern of criminal gang activity meant any combination of robbery or assault with a deadly weapon, offenses not charged in this case.

[19] The court also imposed a 25-years-to-life term for the firearm enhancement on count 3, but stayed it pursuant to section 654.