People v. Pena CA2/2

INTRODUCTION

The evidence presented by the prosecution allowed the jury in this murder case to consider defendant Gilardo Pena as a senior member of a criminal street gang, who was literally the shot caller of the murder. But there was also evidence that other members were the shot callers. There was no evidence defendant was the actual shooter. There was evidence by which the jury could have considered defendant merely an aider and abettor of an assault that led to an impromptu killing. Because it cannot be determined on appeal whether the jury found defendant guilty of directly aiding and abetting the murder, as opposed to the jury finding defendant guilty based on the murder being the natural and probable consequence of aiding and abetting an assault or an assault with a deadly weapon, we must reverse and remand in accordance with People v. Chiu (2014) 59 Cal.4th 155 (Chiu).

PROCEDURAL BACKGROUND

A jury convicted defendant of first degree murder in violation of Penal Code section 187, subdivision (a).1 The jury found that the murder was committed for the benefit of, or in association with, a criminal street gang within the meaning of section 186.22, subdivision (b)(1). The…