P. v. Chiu

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Filed 4/23/12 P. v. Chiu CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
BOBBY CHIU,
Defendant and Appellant.
C063913
(Super. Ct. No. 03F08566)
Following a reversal by this court of the first degree
murder conviction of defendant Bobby Chiu and attached gang
enhancements, the People retried defendant. Defendant was not
the shooter, so the People‟s theory of liability was that either
he aided and abetted the murder or he perpetrated the offenses
of disturbing the peace or assault, the natural and probable
consequence of which was murder. Based on one of these
theories, the jury found defendant guilty of first degree
murder. It also found true a gang enhancement.
Defendant appeals, raising contentions relating to juror
misconduct, closing the courtroom, prosecutorial misconduct,
insufficient evidence, and instructional error, among others.
We agree with two: some of the jury instructions were wrong

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because they did not allow the jury to consider whether
defendant might have been guilty of only second degree murder
under the natural and probable consequence doctrine, even if the
shooter committed first degree murder; and collateral estoppel
prevented defendant‟s retrial on the gang enhancement. We
therefore strike the gang enhancement and conditionally reverse
defendant‟s first degree murder conviction. We remand for a
retrial on first degree murder only unless the People accept a
reduction of the conviction to second degree murder. Because
defendant will have to be either retried or resentenced, we do
not reach defendant‟s sentencing arguments relating to cruel and
unusual punishment and the imposition of jail and booking fees.
FACTUAL AND PROCEDURAL BACKGROUND
A
The Prosecution’s Case
In September 2003, McClatchy High School acquaintances Sarn
Saeteurn and Mackison Sihabouth argued over instant messaging
about two girls. Saeteurn challenged Sihabouth to an after
school fight the next day in front of Famous Pizza, which was
owned by Sihabouth‟s parents. Next door to Famous Pizza was an
internet cafe named E-Channel. Saeteurn told Sihabouth he was
going to bring his “homies” with him and would shoot Sihabouth‟s
father if his father tried to break up the fight. Saeteurn‟s
threats made Sihabouth “„[h]ella raged,‟” and he called Simon
Nim, whom he knew from E-Channel. Nim was a member of the Hop

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Sing gang, as were defendant, Tony Hoong, and Rickie Che.1
Sihabouth also knew defendant and Hoong from E-Channel.
Defendant and Che were friends.
The next day, American Legion High School student Toang
Tran learned about the fight from defendant, who was a
classmate. Defendant asked Tran if he “„want[ed to] see someone
get shot,‟” said there was going to be a fight over a girl, and
defendant‟s “friend” would shoot if his “friend feels
pressured.”
Sihabouth showed up for the fight in front of Famous Pizza
and saw a crowd of Nortenos and Asians. He decided to leave
because he thought he was “going to get caught for this fight.”
Saeteurn failed to show up because he learned that Hop Sing
members were going to be there and believed they “„are crazy and
they try to kill people.‟”
Also waiting in front of Famous Pizza that day was
McClatchy High School student Teresa Nguyen, looking for her
boyfriend, Antonio Gonzales, who was a student at American
Legion. When Nguyen found Gonzales, she greeted him with a hug
1 The prosecution‟s gang expert testified about the Hop Sing
gang. They were “off the charts” in terms of criminal
sophistication as compared to African American gangs and
Hispanic gangs and even other Asian gangs. They “are not stupid
enough to wear colors and brag about who they are. People know
who they are.” The other gangs were “about stupid machismo.
Respect, disrespect. You look at me the wrong way, I‟ll kill
you.” The Hop Sing gang was all “about making money anyway they
can” and used violence “in a very calculated and cold hearted
way.”

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and a kiss. Defendant then said something to Nguyen, as though
he was mocking her. Nguyen asked if he was mocking her, and
defendant started snickering. Nguyen told him, “„Shut up.‟”
Defendant and Gonzales then “start[ed] exchanging [fighting]
words.” Defendant called Gonzales a “bitch” and “call[ed] [him]
out.”
Gonzales and defendant walked toward each other.
Gonzales‟s friend, Roberto Treadway, told Gonzales, “„I got your
back.‟” On defendant‟s side were Che and Hoong. Che punched
Treadway. Defendant swung at Gonzales, and Gonzales swung back.
Defendant then “body slammed” Gonzales on Gonzales‟s back and
started hitting him. Another one of Gonzales‟s friends, Lareina
Montes, unsuccessfully tried to grab Gonzales to stop the
fighting. Gonzales‟s cousin, Angelina Hernandez, hit defendant
with her fists, which allowed Gonzales to get back up and resume
fighting defendant. Then Roberto Reyes joined in the fight.
Reyes punched defendant once, causing him to bleed. Treadway‟s
cousin, Joshua Bartholomew, hit defendant hard on the head.
During the fighting, defendant said, “„Grab the gun.‟” Che got
a gun from the trunk of a car. As Bartholomew and Treadway
“t[oo]k off running,” Hoong pulled out a knife and stabbed
Treadway in the arm. Che pointed the gun at Gonzales‟s face and
said, “„Run now, bitch, run.‟” Gonzales “t[oo]k [Che] up on
that invitation.” Che then pointed the gun at Treadway‟s head
but hesitated. Defendant and Hoong yelled “[s]hoot him,”
“[s]hoot him.” Che shot Treadway dead. Che, defendant, and
Hoong fled together in a car.

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B
The Defense
Defendant testified on his own behalf. On the day Treadway
was killed, defendant had heard, as did “[t]he whole school,”
“[t]here was going to be a fight between two kids . . .
fighting over a girl.” He did not know or think Che had a gun.
He mocked Nguyen in an attempt to “pickup on her.” A fight
began between him and Gonzales over Nguyen. While defendant was
fighting Gonzales, defendant “continually felt punches into the
back of [his] head.” Those punches “never stopped.” He “felt
[his] body going weak.” He also received a blow to his face and
was bleeding from his nose. Nobody was helping him. He never
called for anybody to get a gun. Gonzales ran away when Che
pulled out a gun. Pulling the gun out was not something
defendant expected or wanted Che to do.
DISCUSSION
I
There Was No Error In The Court’s Investigation
And Rulings Regarding Juror Misconduct
Defendant contends the trial court denied him due process
by: (1) improperly investigating a possible claim of juror
misconduct; (2) removing a holdout juror; and (3) allowing
deliberations to resume with a new juror instead of declaring a
mistrial. We find no error in the court‟s investigation and
rulings on juror misconduct.
During deliberations, the jury sent the court a note
stating, “We are stuck on Murder I or II due to personal views.

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What do we do?” Two hours and 13 minutes later, the jury sent
the court another note stating, “We are at a stale mate [sic].”
The court interpreted the notes as follows: They “can be read
to read due to personal views, we are at a stalemate. And one
reasonable interpretation of that is that there is personal view
or opinion outside of the evidence and law which is affecting
one or more opinions. [¶] The other is that they just have
different personal views. But given the whole here, there is at
least a reasonable possibility of juror misconduct.” Over
defense objection, the court questioned the foreperson. The
juror answered “Yes” when the court asked whether “personal
views” meant “one or more jurors have reached different opinions
based on something personal to them other than the law or the
evidence.” The foreperson explained in response to further
questioning from the court that Juror No. 1 “had a conflict
between the morality of . . . what we were doing and the law
that had to be applied.”
The court then questioned some of the other jurors and then
questioned Juror No. 1. Thereafter, the court denied the
defense‟s motion for a mistrial that had been based on the
manner in which the court conducted the investigation of juror
misconduct and granted the People‟s motion to remove Juror
No. 1.
Defendant‟s first contention is the court was “unwarranted”
in inquiring about possible juror misconduct because there was
no “cogent evidence” of juror misconduct, citing People v.
Cleveland (2001) 25 Cal.4th 466. In Cleveland, the California

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Supreme Court quoted from People v. Johnson (1992) 3 Cal.4th
1183 at page 1255, that absent “„considerably more cogent
evidence of coercion,‟” the trial court in Johnson “properly
declined to inquire into whether some jurors were coercing the
dissenting juror.” (Cleveland, at p. 479.) Cleveland prefaced
that comment with the relevant inquiry for our purposes on
appeal: “„The decision whether to investigate the possibility
of juror bias, incompetence, or misconduct--like the ultimate
decision to retain or discharge a juror--rests within the sound
discretion of the trial court. [Citation.] . . . [¶] As our
cases make clear, a hearing is required only where the court
possesses information which, if proven to be true, would
constitute „good cause‟ to doubt a juror‟s ability to perform
his duties and would justify his removal from the case.
[Citation.]‟” (Cleveland, at p. 478.)
Here, the court did not abuse its discretion in
investigating the possibility of juror misconduct. In deciding
to conduct its investigation, the court noted that “given the
whole here, there is at least a reasonable possibility of juror
misconduct.” The “whole here” included the following three
salient facts. One, defense counsel had recently given a
closing argument that the court described as containing “a
definite strain of asking for sympathy not just because of
[defendant‟s] age, but for the comparative fault . . . by the
defendant versus the other participant in this crime.” It was
because of this inappropriate argument the court gave a special
instruction that told the jurors they were to disregard

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arguments by counsel “[i]f either counsel suggested in any way
that you may consider penalty or punishment . . . or sympathy
for or against the defendant.” Two, the day before the jury
sent the court the note regarding “personal views,” the court
had received a note from one of the jurors (who turned out to be
Juror No. 1) that the juror was “feel[ing] like [she was] going
to throw up” and asked if “someone [could] stand in for [her].”
When the court sent a note to Juror No. 1 asking whether she
felt well enough to continue with deliberations that afternoon,
she responded in writing, “NO!” This note and the juror‟s
vehement response she could not continue with deliberations
suggested the possibility something was wrong. And three, the
“personal views” note made it plausible there was a juror who
was injecting his or her personal views in the case that were
not based on the facts or law that would justify the removal of
that juror from the case. Given these facts, the court did not
abuse its discretion in investigating the possibility of juror
misconduct.
Defendant‟s second contention is the court abused its
discretion in removing Juror No. 1 because it was not
established to a demonstrable reality she was unable to
withstand pressure from other jurors and unable to follow the
law of aiding and abetting. “„We review for abuse of discretion
the trial court‟s determination to discharge a juror and order
an alternate to serve. [Citation.] If there is any substantial
evidence supporting the trial court‟s ruling, we will uphold it.
[Citation.] . . . [H]owever, . . . a juror‟s inability to

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perform as a juror “„must appear in the record as a demonstrable
reality.‟” [Citation.]‟” (People v. Cleveland, supra, 25
Cal.4th at p. 474.) Here, there was no abuse of discretion.
The juror‟s inability to perform as a juror was based on
substantial evidence in the form of her responses and the trial
court‟s factual findings regarding her demeanor.
There was substantial evidence Juror No. 1 could not
withstand pressure from the other jurors. Juror No. 1 admitted
she felt she was “being pressured into changing how [she]
fe[lt].” She said she was “going to wind up changing [her]
vote” “just because of the people [who] [she] was dealing with
in the jury” and her “vote w[ould not] be truthful in the long
run.” When the court asked her, “This is what I hear you
telling me. Saying, Judge, there is just pressure in the jury
process and I‟m getting pressure. And to be truthful with you,
I got to tell you, I think I may change my vote in a way that is
not truthful just in response to that pressure; is that what you
are telling me?” Juror No. 1 responded, “Unfortunately, yes.”
In relying on these responses to remove Juror No. 1, the court
stated that before Juror No. 1 responded, “Unfortunately, yes,”
the juror “pause[d]” and “actually looked down again with tears
in her eyes.” The court continued that it had “never made a
stronger demeanor finding than [it was] making at this time that
[the court] believed her opinion as articulated at that time and
in those words represented her true position . . . . This is a
juror [who] the Court believes will move in response to just

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numerical breakdown and change her vote as she so forthrightly
and in such a moving way admitted.”
There was also substantial evidence Juror No. 1 was unable
to follow the law. The court asked her if she could “apply
th[e] law in reaching [her] verdict in this case as [she] s[aw]
fit based on the evidence, or is . . . the law is so different
from [her] personal beliefs in this area that [she] c[ould]n‟t
do that.” She responded, “I don‟t feel that I would be able to.
It‟s taken a lot. It has taken its toll on me at least. I have
only been here in tears, that‟s not good. I am just not, ah, I
just don‟t feel that it‟s right in this situation here.” The
court then asked, “Are you saying, hey, Judge, I want you to
know there is a reasonable likelihood or a probability . . . I
am going to have to ignore some of this law because morally I
don‟t like it. I don‟t think it is right?” Juror No. 1
responded, “If I am going to be honest, I would say yes.” The
trial court found this “moment” to be “crucial” because prior to
that, Juror No. 1‟s answers “had been somewhat equivocal.” The
trial court explained the “moment” was “so arresting” that
defense counsel asked to approach and although the court “did
not do that,” there was a “dominant inference, and it was
communicated to this juror . . . that [defense counsel] wanted
her to stay on as a juror” and after that “there was a
startling . . . change in the pattern of her answers. After
that the responses were bland, straightforward, consistent with
the voir dire questions that she answered in her
questionnaire . . . .” Based on this state of the record and

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the demeanor findings it had made, the court stated “there is a
demonstrated reality . . . she is unable to follow the law, not
in the sense that there is not evidence there, but as probed
that there was just a moral, fundamental objection to the law
itself.”
Finally, we reject defendant‟s third contention that even
if Juror No. 1 was properly removed, the court should have
granted the defense‟s mistrial motion “[b]ecause deliberations
had progressed to . . . the point of stalemate, too far to begin
anew . . . .” However, it is well settled “such substitution is
permissible when good cause has been shown and the jury has been
instructed to begin deliberations anew.” (People v. Collins
(1976) 17 Cal.3d 687, 691.) Here, the jury was instructed, “you
must set aside and disregard all past deliberations and begin
your deliberations all over again. Each of you must disregard
the earlier deliberations and decide this case as if those
earlier deliberations had not taken place.”
II
The Court Did Not Violate Defendant’s Sixth
Amendment Right In Excluding Certain People
From The Courtroom For A Short Amount Of Time
After the court had finished delivering its oral ruling on
the mistrial motion and had started delivering its oral ruling
on the motion to remove Juror No. 1, the court asked a man in
the audience to step out of the courtroom as follows: “Sir,
would you step out of the courtroom, please.” Defense counsel
“object[ed] to closing the courtroom.” The court overruled the

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objection as follows: “These are other OX[2] people on another
calendar who are here to be voir dired. They are not here to
observe this trial. They are here on another calendar that the
Court hears . . . . [¶] We‟ll accommodate them out there, plug
[them] into their individual attorneys, they go off down the
hallway to do their examination, and at the morning break, if
there‟s problems, I hear them. But they are unrelated to this
case. They are not here for this case.” The court then went on
to deliver its oral ruling removing Juror No. 1, which spanned
13 pages of reporter‟s transcript. On appeal, defendant claims
the court violated his Sixth Amendment right to a public trial.
We disagree.
“Every person charged with a criminal offense has a
constitutional right to a public trial, that is, a trial which
is open to the general public at all times. (See U.S. Const.,
amends. VI, XIV; Cal. Const., art. I, § 15; see also Pen. Code,
§ 686, subd. 1.)” (People v. Woodward (1992) 4 Cal.4th 376,
382.) Here, at least one person was excluded from the court‟s
oral pronouncement of its ruling removing Juror No. 1 and a
reasonable inference from the record is others were as well.3
2 The “OX” calendar is a debtor‟s examination, also known as
an order of examination. It is when the judge swears in the
debtor and the counsel for creditor asks questions, usually
outside the presence of the judge, about the assets of the
debtor.
3 It is a reasonable inference others were excluded as well
because the court stated (before asking the one person to leave)

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The issue is whether this exclusion was “de minimis” and
therefore did not violate the Sixth Amendment. (Woodward, at
pp. 385-386 [where the court closure “did not exclude
preexisting spectators, did not include any of the evidentiary
phase of the trial and lasted only one and one-half hours,” the
closure was “de minimis”].) We hold it was. The court did not
clear the courtroom of all spectators. Rather, the trial court
asked one person in the courtroom to leave who was there on
another matter, and its comments suggested that others who might
have wanted to enter for courtroom for business unrelated to the
present trial would be asked to take care of that business in
the hallway. These comments came while the court was delivering
its ruling on a motion instead of during the evidentiary phase
of the trial. Under these facts, there was no Sixth Amendment
violation.
III
Defendant Has Forfeited His Contention That
His Due Process Rights Were Violated By A
Prosecution “Interlaced With Racial And Ethnic
Prejudice”; Defense Counsel Was Not
Ineffective For Failing To Object
Defendant contends the “prosecution was interlaced with
racial and ethnic prejudice, [so his] conviction must be
reversed for violation of due process.” He claims the
it “need[ed] to close this door and keep people out for a
while.”

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prosecutor resorted to “[r]acial and ethnic stereotyping” to
“portray the brawl as an assault by „criminally sophisticated‟
Chinese gangsters taking advantage of clueless Nortenos.” We
find the issue forfeited and counsel not deficient for failing
to object.
Defendant takes issue with the prosecutor‟s opening
statement, the prosecutor‟s gang expert testimony, and the
prosecutor‟s closing argument, claiming they were all based on
racial stereotyping. But defendant never objected on these
grounds in the trial court, which forfeits the issue on appeal.
(People v. Earp (1999) 20 Cal.4th 826, 893.) While defendant
claims the issue was preserved in a motion for new trial, it was
not. The issue raised there was the “insufficiency and
unconstitutionality of the „criminal street gang‟ special
allegation.”
And we do not find defense counsel ineffective for failing
to object, as defendant now claims on appeal. Defense counsel
had a valid tactical reason for not objecting. Specifically,
defense counsel used the “cultural stereotyp[ing]” as he
referred to it to argue that the People were relying on “bogus”
stereotypes to make the jury believe defendant was guilty.
Thus, defense counsel tried to use to his advantage what he now
claims on appeal should lead us to reverse his conviction. This
we will not do.
Finally, we reject defendant‟s suggestion we reach this
argument raised for the first time on appeal “because a criminal
prosecution based on racial prejudice is intolerable.” We are

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not persuaded by this general claim absent a cogent reason as to
why this principle should apply here.
IV
There Was Sufficient Evidence To Support A Murder Conviction
Under The Natural And Probable Consequences Doctrine
Defendant contends there was insufficient evidence to
support a murder conviction under the natural and probable
consequences doctrine because “[a]bsent a gang motivation for
the fight, the breach of peace (a juvenile misdemeanor) was too
trivial to support a murder conviction” under that doctrine. He
claims the incident here “began as a trivial after-school fight
between high school boys, rather than a dangerous gang-related
confrontation.” In support of this argument he cites People v.
Medina (2009) 46 Cal.4th 913. As we explain, we disagree with
defendant‟s characterization of the facts and find Medina
actually supports a conclusion of sufficient evidence here.
In Medina, the California Supreme Court upheld the jury‟s
verdict of first degree murder for two aiders and abettors based
on the natural and probable consequences doctrine, finding that
the nontarget crimes of murder and attempted murder were a
reasonably foreseeable consequence of simple assault, the target
offense they had aided and abetted. (People v. Medina, supra,
46 Cal.4th at pp. 919-920, 928.) The case involved a verbal
challenge by the defendants (members of a street gang) that
resulted in a fistfight between the defendants and the victim (a
member of another street gang). (Id. at p. 916.) “After the
fistfight ended, one of the defendants shot and killed the

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victim as he was driving away from the scene of the fight with
his friend.” (Ibid.) The jury had found the gunman guilty of
murder and attempted murder of the friend, as the actual
perpetrator, and two nonshooting defendants in the fistfight
guilty of those offenses as aiders and abettors. (Ibid.) The
appellate court, however, reversed the nonshooting defendants‟
convictions, holding there was insufficient evidence that the
nontarget offenses of murder and attempted murder were a natural
and probable consequence of the target offense of simple
assault, which the nonshooting defendants had aided and abetted.
(Ibid.) Our Supreme Court reversed the judgment of the
appellate court relating to the nonshooting defendants
“[b]ecause a rational trier of fact could have concluded that
the shooting death of the victim was a reasonably foreseeable
consequence of the assault.” (Ibid.)
Defendant focuses on Medina because our Supreme Court
relied in some part on the fact the shooting there was gang-
related to find sufficient evidence. (People v. Medina, supra,
46 Cal.4th at p. 922.) The problem with defendant‟s reliance on
Medina is that Medina‟s teaching is not that gang evidence is
necessary to prove sufficient evidence of murder on a natural
and probable consequences theory when the target offense is
essentially a fistfight. Rather, “[t]he issue is „whether,
under all of the circumstances presented, a reasonable person in
the defendant‟s position would have or should have known that
the [shooting] was a reasonably foreseeable consequence of the
act aided and abetted by the defendant.‟” (Medina, at p. 927.)

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Here, as there, it was. Defendant spread word of a
confrontation by telling Tran there was going to be a fight over
a girl. Defendant knew Che brought a gun to the fight. This
was established by the fact defendant asked Tran earlier that
day if he “„want[ed to] see someone get shot,‟” said there was
going to be a fight over a girl, and defendant‟s “friend” would
shoot if the “friend feels pressured.” Defendant ensured a
fight would take place when the original one failed to
materialize. This was established by the fact defendant mocked
Nguyen when she hugged and kissed her boyfriend Gonzales and
then provoked Gonzales by “exchanging words” with him and
calling him a “bitch.” Gonzales described defendant‟s behavior
as using “fighting words” and “calling [him] out.” When,
predictably, a fight ensued, defendant ensured Che would use the
gun by telling Che to “„[g]rab the gun‟” and then telling him to
“„shoot,‟” even when Che hesitated. It was then Che shot
Treadway dead.
Under these facts, there was sufficient evidence to support
defendant‟s murder conviction under the theory murder was a
natural and probable consequence of defendant‟s behavior of
disturbing the peace.
V
The Court’s Instructions On Natural And
Probable Consequences Were Prejudicially Erroneous
Defendant contends the court prejudicially erred in failing
to instruct the jury that to find him guilty of first degree
murder on a natural and probable consequences theory, it had to

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find that first degree murder (as opposed to simply murder) was
a natural and probable consequence of the target offense.
Although he failed to object to this error, he claims we can
reach it because it affected his substantial rights (Pen. Code,
§ 1259) because the instructions incorrectly stated the law. We
agree with defendant there was prejudicial instructional error
and because of that, the claim can be raised for the first time
on appeal. (See People v. Cabral (2004) 121 Cal.App.4th 748,
750 [allowing instructional error to be raised for the first
time on appeal under those circumstances].)
As is relevant here, the jury was instructed on the natural
and probable consequence theory as follows.
“Before you may decide whether the defendant is guilty of
murder under a theory of natural and probable consequences, you
must decide whether he is guilty of the crime of assault or
disturbing the peace. To prove the defendant is guilty of
murder, the People must prove that:
“1. The defendant is guilty of assault or disturbing the
peace.
“2. During the commission of assault or disturbing the
peace, a co-participant in that assault or disturbing the peace
committed the crime of murder.
“3. Under all of the circumstances, a reasonable person in
the defendant‟s position would have known that the commission of
the murder was a natural and probable consequence of the
commission of the assault or disturbing the peace.
“[¶] . . . . [¶]

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“The People are alleging that the defendant originally
intended to aid and abet either the crime of assault or the
crime of disturbing the peace. The defendant is guilty of
assault or disturbing the peace if you find that the defendant
aided and abetted one of those crimes, and that the murder was
the natural and probable result of one of those crimes . . . .”
(CALCRIM No. 403, italics added.)
“If you decide that the defendant is guilty of murder as an
aider and abettor, you must decide whether it‟s murder of the
first degree or second degree.
“The perpetrator is guilty of first-degree murder if the
People have proved that he acted willfully, deliberately, and
with premeditation. The perpetrator acted willfully if he
intended to kill. The perpetrator acted deliberately if he
carefully weighed the considerations for and against his choice,
and knowing the consequences, decided to kill. The perpetrator
acted with premeditation if he decided to kill before committing
the act that caused death.” (CALCRIM No. 521, italics added.)
Lacking from these instructions was the requirement the
jury find that first degree murder was the natural and probable
consequence of either target offense. This was error. (See
People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1587; People v.
Hart (2009) 176 Cal.App.4th 662, 673.)
Woods involved a murder charge based on aiding and abetting
liability and the natural and probable consequences doctrine.
(People v. Woods, supra, 8 Cal.App.4th. at p. 1579.) When the
jury asked the trial court whether a defendant could be found

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guilty of aiding and abetting second degree murder if the
perpetrator of the murder was guilty of first degree murder, the
trial court answered, “No.” (Ibid.) On appeal, this court
agreed with the defendant that the trial court had misinstructed
the jury. (Woods, at p. 1580.) We explained as follows:
“While the perpetrator is liable for all of his or her criminal
acts, the aider and abettor is liable vicariously only for those
crimes committed by the perpetrator which were reasonably
foreseeable under the circumstances. Accordingly, an aider and
abettor may be found guilty of crimes committed by the
perpetrator which are less serious than the gravest offense the
perpetrator commits, i.e., the aider and abettor and the
perpetrator may have differing degrees of guilt based on the
same conduct depending on which of the perpetrator’s criminal
acts were reasonably foreseeable under the circumstances and
which were not.” (Id. at pp. 1586-1587.)
More recently, this court followed Woods in a case much
like the one before us. That case involved a charge of
attempted murder based on aiding and abetting liability and the
natural and probable consequences doctrine. (People v. Hart,
supra, 176 Cal.App.4th at p. 668.) Like the jury instructions
on natural and probable consequences here that referred only to
“murder,” “[t]he instructions on natural and probable
consequences [in Hart] referred to „attempted murder‟ without
noting that, in order to convict [the defendant] of attempted
premeditated murder under the natural and probable consequences
doctrine, the jury would have to find that attempted

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premeditated murder was a natural and probable consequence of
the attempted robbery.” (Hart, at p. 665.) We concluded “that
the trial court has a duty, sua sponte, to instruct the jury in
a case such as this one that it must determine whether
premeditation and deliberation, as it relates to attempted
murder, was a natural and probable consequence of the target
crime. Having failed to do so here, the trial court erred.”
(Id. at p. 673.) We further concluded that the error was
reversible “unless it can be shown that the jury properly
resolved the question under the instructions, as given.”
(Ibid.)
Applying Woods and Hart here, the instructions were
deficient because they failed to inform the jury it needed to
decide whether first degree murder, rather than just “murder,”
was a natural and probable consequence of the target offense.
The absence of such an instruction means that if the jury used
the natural and probable consequences theory to return the first
degree murder conviction, the jury necessarily convicted
defendant of first degree murder simply because that was the
degree of murder the jury found the perpetrator committed, and
the jury never determined whether a reasonable person in
defendant‟s position would have known that premeditated murder
(i.e., first degree murder) was likely to happen (if nothing
unusual intervened) as a consequence of either target offense.
Because this possibility exists, we must reverse defendant‟s
first degree murder conviction. When a trial court instructs a
jury on two theories of guilt, one of which was legally correct

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and one legally incorrect, reversal is required unless there is
a basis in the record to find that the verdict was actually
based on a valid ground. (People v. Guiton (1993) 4 Cal.4th
1116, 1126-1129.) There is no such basis here, as it is
impossible for us to determine from the instructions given, the
verdict returned, or other circumstances of the case on which
theory the jury based its first degree murder conviction.
We turn then to the remedy. As in Woods, because “the
court‟s instructional error affected only the degree of the
crime of which [defendant] was convicted,” we “„may reduce the
conviction to [the] lesser degree [of the offense] and affirm
the judgment as modified, thereby obviating the necessity for a
retrial,‟” but at the same time we must “„give the prosecutor
the option of retrying the greater offense, or accepting [the]
reduction to the lesser offense.‟” (People v. Woods, supra, 8
Cal.App.4th at p. 1596; see also People v. Hart, supra, 176
Cal.App.4th at pp. 674-675.) Accordingly, that is what we will
do.
VI
CALCRIM No. 400 And Its “Equally Guilty” Language
Defendant contends the trial court erred by instructing the
jury that a perpetrator and an aider are “equally guilty” of the
crime. This instruction is from CALCRIM No. 400, which as given
here stated in part, “A person is equally guilty of the crime
whether he or she committed it personally, or aided or abetted
the perpetrator who committed it.”
Recently, we have explained the applicable law as follows:

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“Generally, a person who is found to have aided another
person to commit a crime is „equally guilty‟ of that crime.
(§ 31; see 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000)
Introduction to Crimes, § 77, pp. 122–123.)
“However, in certain cases, an aider may be found guilty of
a greater or lesser crime than the perpetrator. (People v.
McCoy (2001) 25 Cal.4th 1111, 1114–1122 . . . [an aider might be
found guilty of first degree murder, even if shooter is found
guilty of manslaughter on unreasonable self-defense theory];
People v. Woods [supra] 8 Cal.App.4th [at pp.] 1577–1578 . . .
[aider might be guilty of lesser crime than perpetrator, where
ultimate crime was not reasonably foreseeable consequence of act
aided, but a lesser crime committed by perpetrator during the
ultimate crime was a reasonably foreseeable consequence of the
act aided].)
“Because the instruction as given was generally accurate,
but potentially incomplete in certain cases, it was incumbent on
[the defendant] to request a modification if []he thought it was
misleading on the facts of this case. H[is] failure to do so
forfeits the claim of error. (People v. Lang (1989) 49 Cal.3d
991, 1024 . . . [party may not claim „an instruction correct in
law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or
amplifying language‟]; see People v. Samaniego (2009) 172
Cal.App.4th 1148, 1163–1165 . . . (Samaniego) [challenge to
CALCRIM No. 400 forfeited for failure to seek modification]; but
see People v. Nero (2010) 181 Cal.App.4th 504, 517–518 . . .

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(Nero) [construing CALJIC No. 3.00, also using the „equally
guilty‟ language, and finding it misleading „even in
unexceptional circumstances‟].)” (People v. Lopez (2011) 198
Cal.App.4th 1106, 1118-1119, fn. omitted.)
Because there was no objection to this instruction, on
appeal defendant claims his counsel was prejudicially deficient
in failing to object. The prejudice here would have been that
the jury was constrained to find defendant guilty of the same
degree of murder as the perpetrator.4 Because we are reversing
defendant‟s first degree murder conviction for either a
reduction to second degree murder or retrial, we need not
consider whether counsel was ineffective for failing to object.
VII
Collateral Estoppel Barred Retrial Of The Gang Enhancement
In defendant‟s first appeal, we reversed for insufficient
evidence a gang-related firearm use enhancement attached to
defendant‟s first degree murder conviction. Defendant contends
that this court‟s reversal of the gang-related firearm use
enhancement in his first appeal collaterally estopped retrial of
the gang enhancement here. We agree both that he can raise this
issue for the first time on appeal and that collateral estoppel
barred the retrial of the gang enhancement. (See People v.
4 Defendant contends there was evidence of voluntary
manslaughter as well based on heat of passion and that this was
an option the jury could have found him guilty of as well. As
we will explain in part VIII of the Discussion, we reject the
argument there was evidence of voluntary manslaughter based on
heat of passion.

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Saunders (1993) 5 Cal.4th 580, 592-593 [double jeopardy clause
issues can be raised for first time on appeal]; Brown v.
Superior Court (2010) 187 Cal.App.4th 1511, 1524 [double
jeopardy has an issue preclusion component to it].)
In his first appeal, this court held “there [wa]s
insufficient evidence to prove . . . [defendant‟s] participation
in a murder benefitting or committed in association with a gang
with a specific intent to promote, further, or assist criminal
gang activity.” This was an element of both the gang
enhancement and the gang-related firearm use enhancement. We
then addressed the effect of double jeopardy on the People‟s
ability to retry defendant on the gang enhancement and the gang-
related firearm use enhancement. We found the People could
retry defendant on the gang enhancement because “[t]he
punishment on the gang enhancement . . . is . . . one that
merely increases the minimum prison term to 15 years for an
indeterminate life sentence on an underlying crime.” In
contrast, we found the People could not retry defendant for the
gang-related firearm use enhancement “because this enhancement
by contrast increased the punishment on [defendant‟s] underlying
crime beyond the statutory maximum.”
Our reasoning implicated one aspect of the double jeopardy
clause, which is the one that “protect[s] against successive
prosecutions for the same offense after acquittal or
conviction.” (Brown v. Superior Court, supra, 187 Cal.App.4th
at p. 1524, italics added.) Our analysis determined that, for
the purposes of double jeopardy, the gang-related firearm use

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enhancement functioned as an offense barring retrial of that
“offense,” whereas the gang enhancement functioned as an
enhancement thereby allowing retrial of that “enhancement.”
We were neither presented with nor considered the other
aspect of the double jeopardy clause, the collateral estoppel or
issue preclusion component, namely, whether our conclusion
“there [wa]s insufficient evidence to prove . . . [defendant‟s]
participation in a murder benefitting or committed in
association with a gang with a specific intent to promote,
further, or assist criminal gang activity” barred relitigation
of that same element in the gang enhancement.5 We turn there
next.
“„Collateral estoppel‟ . . . stands for an extremely
important principle in our adversary system of justice. It
means simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit. Although first developed in civil litigation,
collateral estoppel has been an established rule of federal
criminal law [for] more than 50 years . . . .” (Ashe v. Swenson
(1970) 397 U.S. 436, 443 [25 L.Ed.2d 469, 475].) Ashe was
recently cited in Yeager v. United States (2009) 557 U.S. ___
[174 L.Ed.2d 78]. In the defendant‟s first trial in Yeager, the
jury acquitted him of fraud but deadlocked on charges of insider
5 For this reason, the doctrine of law of the case does not
apply.

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trading. (Id. at p. ___ [174 L.Ed.2d at p. 85].) The Supreme
Court held that, to the extent the fraud acquittals necessarily
decided that the defendant was not in possession of any insider
information, the issue-preclusion component of the double
jeopardy clause barred a retrial on the insider trading charges.6
(Id. at p. ___ [174 L.Ed.2d at pp. 87-91].)
The same rationale applies here. In defendant‟s first
appeal, we held “there [wa]s insufficient evidence to
prove . . . [defendant‟s] participation in a murder benefitting
or committed in association with a gang with a specific intent
to promote, further, or assist criminal gang activity.”7 This
holding was the equivalent of an acquittal on the “offense” of
the gang-related firearm enhancement. The issue-preclusion
component of the double jeopardy clause therefore precluded a
retrial on the gang enhancement because the element we found
lacking in the “offense” of the gang-related firearm enhancement
was identical to one of the elements in the gang enhancement.
We therefore strike the true finding on the gang enhancement and
6 Based on the United States Supreme Court‟s application of
collateral estoppel to a retrial in the same proceeding in
Yeager, we reject the People‟s argument that “collateral
estoppel . . . has not been applied to retrial after reversal.”
7 Given that we expressly found insufficient evidence of this
element, we reject the People‟s characterization of our holding
as a “disagreement with the jury‟s resolution of conflicting
evidence.” The evidence on the gang enhancement was not
“conflicting” -- it was lacking.

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28
do not consider defendant‟s other argument that there was
insufficient evidence of the gang enhancement.8
This leaves one final point. Defendant contends he is
entitled to a full reversal of his conviction because the gang
evidence “poisoned the well in a manner that violated [his]
right to due process.” In support, he cites People v. Albarran
(2007) 149 Cal.App.4th 214. In Albarran, defendant and his
companion fired multiple shots at a house where a birthday party
was in progress. (Id. at pp. 217-218.) After conviction,
defendant moved for a new trial; he argued there was
insufficient evidence to support the gang enhancements and
without these enhancements, the gang evidence was irrelevant and
overly prejudicial. The trial court granted a new trial only as
to the gang enhancements. (Albarran, at p. 222.) The appellate
court found the gang evidence was irrelevant and so prejudicial
as to deny defendant a fair trial. (Id. at p. 217.)
Albarran is distinguishable. In Albarran, the gang
evidence was extremely inflammatory. It included defendant‟s
gang tattoo referencing the Mexican Mafia and graffiti which
contained a threat to kill the police. (People v. Albarran,
supra, 149 Cal.App.4th at p. 220.) Here, the gang evidence was
not comparable. There was no evidence connecting defendant to
8 The People acknowledge that “to the extent this Court
intended its finding of insufficient evidence to be the
functional equivalent of acquittal, respondent acknowledges the
allegation is precluded from retrial” and “[c]onsequently the
gang allegation should be stricken.”

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29
other murderous activities of the Hop Sing gang. Indeed, the
People‟s own evidence relating to the Hop Sing gang tended to
beg the question whether this really was a gang-related shooting
in the first place. According to the gang expert, Hop Sing
members “don‟t engage in conflicts out in the open where there
[are] a lot of witnesses . . . [a]nd they try to keep their
criminal activity within their own set, and they don‟t try to
display it out in the open.” “[T]hey were much less likely to
engage in pointless violence than the Nortenos and Surenos.”
Given the state of the gang evidence, we do not find its
introduction prejudiced defendant‟s trial.
VIII
The Court Properly Did Not Instruct
On Certain Lesser Included Crimes
Defendant contends the court erred in not instructing on
all lesser included offenses supported by the evidence. The
court instructed on voluntary manslaughter on the theory Che
killed in the heat of passion or on the theory Che killed or
defendant aided and abetted the killing because “he acted in
imperfect self-defense or imperfect defense of another.”
Defendant claims the court should also have instructed on three
other lesser included offenses: (1) voluntary manslaughter
based on defendant‟s own heat of passion; (2) voluntary
manslaughter based on aiding and abetting an assault with a
deadly weapon without malice; and (3) involuntary manslaughter
based on aiding and abetting the brandishing of a firearm.
There was insufficient evidence to instruct on these offenses.

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30
A
There Was Insufficient Evidence To Instruct On Voluntary
Manslaughter Based On Defendant’s Own Heat Of Passion
Defendant contends the jury should have been instructed on
voluntary manslaughter based on his own heat of passion.
Specifically, he argues that “if [he] called out for a gun
during the brawl and/or yelled for [Che] to shoot, which was the
People‟s theory of direct aiding and abetting, there was
substantial evidence to support a theory that [defendant] may
have acted based on a sudden quarrel or heat of passion and
provocation.” Defendant‟s theory focuses on his version of
facts wherein, as defendant describes on appeal, he was
receiving “non-stop blows to the head [that] were painful and
that he was on the verge of losing consciousness.”
If the jury believed this version of events, at least as
applied to defendant‟s act of calling out for the gun, he was
not guilty of any crime because he was being beaten almost until
unconsciousness, and it would have been reasonable to call out
for the gun in self-defense.
As applied to defendant‟s act of yelling at Che to shoot
Treadway, if the jury believed this, defendant‟s action would
not reduce his culpability to voluntary manslaughter. Defendant
cites People v. Leavitt (1984) 156 Cal.App.3d 500, for the
proposition the transferred intent doctrine applies to voluntary
manslaughter. (Id. at p. 507.) However, as that case teaches,
there is no substantial evidence to support a theory of
transferred intent as to the homicide victim where the victim‟s

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death “could not have been the inadvertent result of [the]
defendant‟s attempt to defend himself from [another person.]”
(Id. at p. 508.) Here, there was no evidence defendant‟s order
to shoot (when the gun was directed at Treadway) was the
inadvertent result of his attempt to defend himself from the
beatings inflicted by another group.
B
There Was Insufficient Evidence To Instruct On
Voluntary Manslaughter Based On Aiding And Abetting
An Assault With A Deadly Weapon
Defendant has two theories for why the court should have
instructed on voluntary manslaughter based on aiding and
abetting an assault with a deadly weapon. One, he contends he
“could have been convicted of voluntary manslaughter on a theory
that by calling for a gun, [he] only intended for [Che] to
commit assault with a deadly weapon, without intending for [Che]
to kill anyone, or to shoot with conscious disregard for human
life.” Two, if he yelled at Che to shoot, “that does not
necessarily mean that he urged [Che] to kill anyone, or to shoot
at anyone. It would have been a call for [Che] to shoot to
wound, or to shoot in the air to scare adversaries away.”
As to the first theory, as we have explained, if the jury
believed defendant called for the gun in self-defense while
being beaten almost to unconsciousness, defendant would not be
guilty of a crime.
As to the second theory, defendant fails to mention that
when defendant urged Che to shoot Treadway, Che was already

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32
pointing the gun at Treadway‟s head. Therefore, it was
unreasonable that defendant‟s order for Che to shoot would
simply be to wound Treadway or scare their adversaries away.
C
There Was Insufficient Evidence To Instruct On
Involuntary Manslaughter Based On Defendant
Aiding And Abetting Brandishing A Firearm
Defendant contends the court should have instructed on
involuntary manslaughter based on him aiding and abetting Che‟s
brandishing the firearm. He believes this theory had
evidentiary support because the jury could have believed
defendant called out for a gun during the fight as a cry for
help while still not believing defendant was the one who called
for Che to shoot (given conflicting evidence about who directed
Che to shoot).
Again, as we have said, if the evidence was as defendant
portrays on appeal, then defendant would not have been guilty of
any crime because defendant would be acting in self-defense.
IX
The Instruction On Natural And Probable
Consequences Did Not Allow The Jury To Find
Defendant Guilty Of Murder By Finding Che
Aided And Abetted Defendant, Rather
Than The Other Way Around
Defendant contends “[t]he instruction[] on the natural and
probable consequence theory [CALCRIM No. 403] was erroneous in
that [it] allowed the jury to apply the doctrine upon finding

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33
that [he] was „guilty‟ of committing a target offense himself,
without requiring a finding that his „guilt‟ was based on aiding
and abetting a confederate in the commission of the target
offense.” He claims “the jury could have found [him] guilty of
murder based on a theory that Rickie Che aided and abetted [him]
in committing the target offense, without a finding that [he]
aided and abetted Rickie Che.” “In other words, the jury could
find that [Che] was aiding and abetting [defendant] rather than
the other way around.”
This argument need not detain us long. CALCRIM No. 403
mentioned twice defendant must be the aider and abettor under
the natural and probable consequences doctrine. Specifically,
the instruction stated: “The People are alleging that the
defendant originally intended to aid and abet either the crime
of assault or the crime of disturbing the peace. The defendant
is guilty of assault or disturbing the peace if you find that
the defendant aided and abetted one of those crimes, and that
the murder was the natural and probable result.” It is not
reasonable the jury would have ignored the language we have just
quoted and, as defendant argues, concluded defendant was guilty
of murder simply because of what came before in that
instruction.9
9 What became before in the instruction was as follows:
“Before you may decide whether the defendant is guilty of murder
under a theory of natural and probable consequences, you must
decide whether he is guilty of the crime of assault or
disturbing the peace. To prove the defendant is guilty of
murder, the People must prove that:

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X
The Court Did Not Err In Giving The
Mutual Combat Instruction (CALCRIM No. 3471)
Defendant contends the court erred in giving the pattern
mutual combat instruction (CALCRIM No. 3471) because the
instruction “interfered with [his] right to defend himself
against the attack of others.”10 He acknowledges he was engaged
“1. The defendant is guilty of assault or disturbing the
peace.
“2. During the commission of assault or disturbing the
peace, a co-participant in that assault or disturbing the peace
committed the crime of murder.
“3. Under all of the circumstances, a reasonable person in
the defendant‟s position would have known that the commission of
the murder was a natural and probable consequence of the
commission of the assault or disturbing the peace.
“[¶]. . . . [¶]”
However, as we have just explained, what came after was as
follows:
“The People are alleging that the defendant originally
intended to aid and abet either the crime of assault or the
crime of disturbing the peace. The defendant is guilty of
assault or disturbing the peace if you find that the defendant
aided and abetted one of those crimes, and that the murder was
the natural and probable result of one of those crimes.”
(CALCRIM No. 403, italics added.)
10 As given here, CALCRIM No. 3471 states, “A person who
engages in mutual combat or . . . who is the initial aggressor
has a right to self-defense only if:
“1. He actually and in good faith tries [to] stop
fighting;

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35
in mutual combat with Gonzales, but contends he should have
still retained the right of self-defense against others who
attacked him while engaged in mutual combat with Gonzales. He
then states, “the instruction simply states that a person who is
engaged in mutual combat does not have the full right of
self[-]defense, without saying that the limitation applies only
to a claim of self-defense against the opponent in mutual
combat, and does not apply to others who join the fight,
contrary to the agreement.”
Defendant‟s argument does not persuade us. The facts as
defendant describes them in his opening brief on this argument
were that “[a]t least three [people] other[ than Gonzales] took
free shots at [defendant]‟s head, delivering more than ten
blows, to the point that [defendant] nearly lost consciousness.”
If the jury had found these to be the facts and if it read the
“2. He indicates by word or by conduct to his opponent in
a way that a reasonable person would understand that he wants to
stop fighting, and that he has stopped fighting;
“3. He gives his opponent a chance to stop fighting.
“If a person meets these requirements, he then has a right
to self-defense if the opponent continues to fight.
“A fight is mutual combat when it began or continued by
mutual consent or agreement. That agreement may be expressly
stated or implied, and must occur before the claim to self-
defense arose.
“If you decide that the person started the fight using
nondeadly force, and the opponent responded with such sudden and
deadly force that the person could not withdraw from the fight,
then the person has a right to defend himself with deadly force,
and was not required to try to stop the fight.”

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instruction as defendant suggests, the jury still could have
found defendant had the right to self-defense. This is because
CALCRIM No. 3471 itself stated, ““If you decide that the person
started the fight using nondeadly force, and the opponent
responded with such sudden and deadly force that the person
could not withdraw from the fight, then the person has a right
to defend himself with deadly force, and was not required to try
to stop the fight.” Surely, hitting defendant more than 10
times in the head to the brink of unconsciousness would qualify
under this instruction as deadly force that allowed defendant to
defend himself. And, the jury was instructed that if
“defendant, in aiding and abetting the killing, acted in
complete self-defense or defense of another, his action was
lawful, and you must find him not guilty of any crime.”
XI
The Court Did Not Err In Giving CALCRIM No. 373
And Special Instruction No. 1 Regarding Not
Considering Why Others Had Not Been Prosecuted
Defendant contends the court erred in instructing with
CALCRIM No. 37311 and special instruction No. 112 that he claims
11 CALCRIM No. 373 stated there may have been other people
involved in the commission of the crime charged against
defendant and the jury should not speculate whether those people
have been or will be prosecuted. The instruction did not apply
to Nim.
12 Special instruction No. 1 stated: “If either counsel
suggested in any way that you may consider penalty or
punishment, or whether Rickie Che or any other person has been

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37
prohibited the jury from considering whether Gonzales,
Hernandez, Bartholomew, Nguyen, and Montes could have been
prosecuted for murder based on the natural and probable
consequences doctrine. His theory is this: when Gonzales and
Treadway “squared off” to fight defendant and Che, then
Gonzales, Hernandez, Bartholomew, Nguyen, and Montes “knew or
should have known that any fighting would not remain one-on-one,
but would draw others in, and could quickly escalate into a
riot. They knew or should have known that this sort of melee
could result in serious injury or death.” He claims these
witnesses therefore had a motive to testify favorably to the
prosecution.
The premise of defendant‟s argument is wrong. None of
these witnesses could have been prosecuted for murder based on
the natural and probable consequences doctrine. A reasonable
person in the position of Gonzales, Hernandez, Bartholomew,
Nguyen, or Montes would not “have known that the [shooting] was
a reasonably foreseeable consequence of the act [they] aided and
abetted.” (People v. Medina, supra, 46 Cal.4th at p. 927.)
They were unaware Che brought a gun to the fight or that he
would shoot if pressured. In other words, they had no way of
knowing this fight could turn deadly. While defendant makes
much of the fact the jury was instructed knowledge of the gun
or will be prosecuted, or sympathy for or against the defendant,
you must disregard those arguments. You must not discuss those
matters or permit them to enter into your deliberations in any
way.”

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38
was not a “prerequisite” for finding defendant guilty on a
natural and probable consequences theory, it also was instructed
that knowledge of that fact may be considered in determining
whether the homicide was foreseeable.
Defendant also cites People v. Sanchez (2001) 26 Cal.4th
834, for the proposition, “all participants in a deadly brawl
are potentially liable for a resulting death.” Sanchez does not
sweep so broadly. Rather, that case stands for the proposition
that where armed rival gang members engage in a gun battle that
kills an innocent bystander, both can be liable for murder even
though it is unclear who fired the fatal shot. (Id. at pp. 838-
839.) This is not the situation we have here.
XII
The Court Properly Did Not Give Accomplice Instructions As To
Gonzales, Nguyen, Bartholomew, Hernandez, and Montes
Using the same rationale as his last argument, defendant
contends the court erred in failing sua sponte to instruct that
Gonzales, Nguyen, Bartholomew, Hernandez, and Montes were
accomplices as a matter of law. For the same reasons we
rejected that argument, we reject this one too.
DISPOSITION
The gang enhancement is stricken. Defendant‟s conviction
of first degree murder is reversed unless the People accept a
reduction of the conviction to second degree murder. If, after
the filing of the remittitur in the trial court, the People do
not bring defendant to retrial solely on the premeditation and
deliberation element within the time set forth in Penal Code

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section 1382, subdivision (a)(2) -- 60 days unless waived by the
defendant -- the trial court shall proceed as if the remittitur
constituted a modification of the judgment to reflect a
conviction of second degree murder and shall resentence
defendant accordingly.
ROBIE , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.

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