People v. Cernogg CA2/3

INTRODUCTION

A jury found defendant and appellant James Russell Cernogg, Jr., guilty of first degree murder and found true gun and gang enhancement allegations. The prosecution’s theory was Cernogg aided and abetted the first degree premeditated murder of Michael Pimental. The jury was therefore instructed they could find Cernogg guilty of murder as either a direct aider and abettor or under the natural and probable consequences doctrine. Our California Supreme Court, however, has found that an aider and abettor cannot be guilty of first degree premeditated murder under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155 (Chiu).) Because we cannot determine beyond a reasonable doubt that the jury based its verdict on a valid theory, as opposed to the invalid natural and probable consequences doctrine, we reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

On May 11, 2006, Camilo H. (“Dust”) and Michael Pimental (“Rest”)1 were hanging out with friends, including Michael Morales. Later that night, around 9:30 p.m. or 10:00 p.m., Camilo and Pimental were tagging. Camilo wrote “Dust” on a wall. Cernogg, who was on a…