FACTS

At the time of the offenses, Gastelum was staying with his cousin, Jacob Gamboa.

From his time living on the streets, Gastelum was acquainted with Rodgers and J.W., as

well as another individual, L.M.

On June 24, 2016, Gastelum was smoking next to a liquor store in Riverside,

California. J.W. approached and confronted him. J.W. believed Gastelum and his cousin

Gamboa had assaulted a mutual friend. Gastelum said something that angered J.W., so

J.W. punched Gastelum several times. During the fight, Gastelum dropped a portable

speaker. Either J.W. or someone else picked it up, and J.W. ended up with it.

Later that night, J.W. was hanging out at a gas station with L.M. and Rodgers.

J.W. heard someone call out his nickname. He turned around and saw Gastelum and

another person, later identified as Gamboa. J.W. started to walk toward them, but then he

noticed each of them was holding a gun. J.W. started to run. He heard gunshots and was

hit in his left buttock. J.W. kept running and eventually met up with a friend. He was

taken to a hospital, where he spent several days recovering. L.M. also suffered a gunshot

wound to his buttocks and survived. Rodgers was shot five times, including twice in the

head. He died at the scene.

Police obtained surveillance video of the initial fight in front of the liquor store,

Gastelum and Gamboa's approach to the gas station, and parts of the shooting. The video

showed that Gastelum and Gamboa parked some distance from the gas station and took a

circuitous route toward the victims.

4 Police also obtained a cell phone video recorded by Gastelum and Gamboa after

the shooting. At the beginning of the video, Gastelum said, "This video is for—fuck

[J.W.] and all the niggas." Gamboa commented, "[T]here was not—not a better night

than this. I—I got that fool. The same day that—the same day these fools tried to come

and start some shit, is the same these—these fools got served." He said, "I fucking got

that fucking nigger. Those fools were screaming fool." Gastelum responded, "Yeah I

know and that's what P asked him in the beginning, 'Hey nigga you know how to

dance?' "2 Gastelum later said, "I wanted to record it, but I didn't have my phone."

Gamboa talked about shooting one of the victims (presumably Rodgers) and explained,

"[W]hen he hit, that's when I was on him, I'm like doom, doom, doom. And then that's

when I started getting the rest of him." Gastelum remarked, "He paid for a nigger's

mistakes." Gamboa said, "I know I hit every single one of them. Fuck yeah, they all got

hit. That fool screamed like a little bitch." Gastelum responded, "Oh, yeah." A few days

later, Gastelum told a friend, "We took care of those niggers."

At trial, the parties stipulated that only one gun was fired during the shooting. The

parties also stipulated to certain statements Gastelum made to police. Gastelum said

(1) he had problems with J.W. when he was living on the streets; (2) after J.W. punched

him at the liquor store, he challenged J.W. to continue the fight; and (3) he was upset and

angry after the fight because he had been hit, "especially by a black guy."

2 This statement is a reference to music lyrics. Gastelum later admitted he was making a joke about J.W. having to "dance" to dodge bullets. 5 Gastelum testified in his own defense. He admitted suffering a felony conviction

for domestic violence, two misdemeanor convictions for domestic battery, and one

misdemeanor conviction for false imprisonment. He also admitted he knew that Gamboa

had been in prison several times "for guns" and had the nickname of "Maniac." He

claimed he had a good relationship with Rodgers, J.W., and L.M.

Gastelum confirmed that J.W. confronted him at the liquor store about their

mutual friend. He said he responded to J.W., "I don't know what the fuck you're talking

about." Gastelum told the jury he did not assault the friend.

At the liquor store, J.W. hit Gastelum and knocked him to his knees. The portable

speaker, which belonged to Gamboa, fell on the ground. J.W. picked up the speaker and

started walking away. Gastelum told J.W. to return the speaker because it did not belong

to him. J.W. replied, "Fuck you. Tell your cousin to come get it himself." Gastelum

claimed he was not mad afterward; he just wanted the speaker back.

Gastelum called Gamboa. Gastelum told him he had been in a fight and J.W. took

the speaker. Gamboa picked Gastelum up in his car. Gamboa was mad at Gastelum and

J.W. They drove around looking for J.W. but could not find him. Gastelum and Gamboa

went home.

Gamboa was still angry, but Gastelum was tired so he went to sleep. Later,

according to Gastelum, Gamboa woke him up and said they should drive to get

something to eat. On the way, Gamboa saw "some black guys" and thought one might be

J.W. They drove around some more, and Gamboa parked. Gastelum claimed he thought

6 they were just going to fight J.W. and get the speaker back. He testified he was not

armed and did not know Gamboa had a gun.

Gastelum and Gamboa walked in a roundabout way and eventually approached the

victims. Gastelum saw several men but could not identify them because his eyesight is

bad. He claimed not to know whether J.W., L.M., or Rodgers was there. Gastelum

called out J.W.'s nickname to see if he was one of the men. (Gastelum claimed that he

called out J.W.'s nickname on his own accord; he denied that Gamboa asked him to do

so.) In response, J.W. turned around, and Gastelum recognized him because of his

glasses.

Gamboa started shooting. Gastelum claimed to be surprised; he said he did not

see Gamboa pull out a gun. After the shooting stopped, Gamboa and Gastelum ran back

to Gamboa's car and drove home. Gastelum acknowledged recording the cell phone

video recovered by police. He claimed he recorded it because he was upset and hurt. He

asserted that the word "he" in his statement, "He paid for a nigger's mistakes," referred to

J.W., not anyone else.

After his arrest, Gastelum lied to police about the shooting. He initially claimed

he was not there, and then he told detectives he must have been sleepwalking or on drugs.

DISCUSSION

I

Natural and Probable Consequences Instruction

The prosecution pursued two theories of liability against Gastelum for the first

degree murder of Rodgers, one based on direct aiding and abetting and one based on the

7 natural and probable consequences doctrine. "[A]n aider and abettor's liability for

criminal conduct is of two kinds. First, an aider and abettor with the necessary mental

state is guilty of the intended crime. Second, under the natural and probable

consequences doctrine, an aider and abettor is guilty not only of the intended crime, but

also 'for any other offense that was a "natural and probable consequence" of the crime

aided and abetted.' " (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) The intended

crime is commonly described as the "target" offense, while the unintended crime is

described as the "nontarget" offense. (People v. Prettyman (1996) 14 Cal.4th 248, 254.)

Gastelum contends the court erred by instructing the jury on the second theory of

aiding and abetting because the natural and probable consequences doctrine cannot

support liability for first degree lying-in-wait murder under Chiu, supra, 59 Cal.4th 155.

He does not challenge the first theory based on direct aiding and abetting. We review the

correctness of jury instructions de novo. (People v. Fenderson (2010) 188 Cal.App.4th

625, 642 [" 'Errors in jury instructions are questions of law, which we review de

novo.' "].)

In order to hold Gastelum liable under the challenged theory, the prosecution was

required to prove that Rodgers's murder was the natural and probable consequence of an

offense Gastelum intended to commit. Here, the intended (or "target") offense was the

attempted murder of J.W. The prosecution alleged that Gastelum directly aided and

abetted the attempted murder of J.W. by Gamboa.

The unintended (or "nontarget") offense was the first degree lying-in-wait murder

of Rodgers, also by Gamboa. The court's instructions told the jury that, to prove the

8 nontarget offense, the prosecution was required to prove that Gamboa (1) concealed his

purpose from the person killed; (2) waited and watched for an opportunity to act; and

(3) from a position of advantage, he intended to and did make a surprise attack on the

person killed. (See CALCRIM No. 521.) The court's instructions continued, "The lying

in wait does not need to continue for any particular period of time, but its duration must

be substantial enough to show a state of mind equivalent to deliberation and

premeditation. Deliberation means carefully weighing the considerations for and against

the choice and, knowing the consequences, decid[ing] to act. An act is done with

premeditation if the decision to commit the act is made before the act is done." (See

ibid.)

Under the court's instructions, to find Gastelum guilty of the nontarget offense of

first degree murder, the jury was required to find (1) Gastelum was guilty of the

attempted murder of J.W.; (2) during the commission of the attempted murder of J.W., a

coparticipant in the attempted murder (i.e., Gamboa) committed the first degree murder

of Rodgers; and (3) a reasonable person in Gastelum's position would have known that

the first degree murder of Rodgers was a natural and probable consequence of the

attempted murder of J.W. (See CALCRIM No. 402.)

In Chiu, our Supreme Court considered the scope of the natural and probable

consequences doctrine in the context of first degree premeditated murder. It noted that

aider and abettor liability is founded in statute (§ 31), but the statute's vague language

allows and may even require judicial interpretation. (Chiu, supra, 59 Cal.4th at p. 164.)

The natural and probable consequences doctrine, which has a long history at common

9 law, is part of that interpretation. As such, courts may "determine the extent of aiding

and abetting liability for a particular offense, keeping in mind the rational function that

the doctrine is designed to serve and with the goal of avoiding any unfairness which

might redound from too broad an application." (Ibid.)

"Aider and abettor culpability under the natural and probable consequences

doctrine is vicarious in nature. [Citations.] 'By its very nature, aider and abettor

culpability under the natural and probable consequences doctrine is not premised upon

the intention of the aider and abettor to commit the nontarget offense because the

nontarget offense was not intended at all. It imposes vicarious liability for any offense

committed by the direct perpetrator that is a natural and probable consequence of the

target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of

the aider and abettor with respect to that offense is irrelevant and culpability is imposed

simply because a reasonable person could have foreseen the commission of the nontarget

crime.' " (Chiu, supra, 59 Cal.4th at p. 164.)

Chiu distinguished between second degree murder and first degree premeditated

murder, and held that the lesser "punishment for second degree murder is commensurate

with a defendant's culpability for aiding and abetting a target crime that would naturally,

probably, and foreseeably result in a murder under the natural and probable consequences

doctrine." (Chiu, supra, 59 Cal.4th at p. 166.) The court looked, in part, at the

correlation between the defendant's culpability and the punishment imposed. "A primary

rationale for punishing such aiders and abettors—to deter them from aiding or

encouraging the commission of offenses—is served by holding them culpable for the

10 perpetrator's commission of the nontarget offense of second degree murder. [Citation.] It

is also consistent with reasonable concepts of culpability. Aider and abettor liability

under the natural and probable consequences doctrine does not require assistance with or

actual knowledge and intent relating to the nontarget offense, nor subjective

foreseeability of either that offense or the perpetrator's state of mind in committing it."

(Chiu, supra, 59 Cal.4th at p. 165.)

But, with respect to first degree premeditated murder, the Supreme Court held that

the same calculus did not apply. "First degree murder, like second degree murder, is the

unlawful killing of a human being with malice aforethought, but has the additional

elements of willfulness, premeditation, and deliberation, which trigger a heightened

penalty. [Citation.] That mental state is uniquely subjective and personal. It requires

more than a showing of intent to kill; the killer must act deliberately, carefully weighing

the considerations for and against a choice to kill before he or she completes the acts that

caused the death. [Citations.] Additionally, whether a direct perpetrator commits a

nontarget offense of murder with or without premeditation and deliberation has no effect

on the resultant harm. The victim has been killed regardless of the perpetrator's

premeditative mental state. Although we have stated that an aider and abettor's

'punishment need not be finely calibrated to the criminal's mens rea' [citation], the

connection between the defendant's culpability and the perpetrator's premeditative state is

too attenuated to impose aider and abettor liability for first degree murder under the

natural and probable consequences doctrine, especially in light of the severe penalty

11 involved and the above stated public policy concern of deterrence." (Chiu, supra,

59 Cal.4th at p. 166.)

Gastelum argues that Chiu's reasoning should be extended beyond first degree

premeditated murder to the first degree lying-in-wait murder at issue here. We disagree.

First degree premeditated murder is characterized by the "uniquely subjective and

personal" mental state harbored by the perpetrator. (Chiu, supra, 59 Cal.4th at p. 166.)

First degree lying-in-wait murder, by contrast, is characterized by the objective facts of

the killing itself, i.e., the manner in which the perpetrator carried out the murder. As

noted, the jury here was instructed that first degree lying-in-wait murder consists of the

following elements: (1) the perpetrator concealed his purpose from the person killed;

(2) the perpetrator waited and watched for an opportunity to act; and (3) from a position

of advantage, he intended to and did make a surprise attack on the person killed. (See

CALCRIM No. 521; People v. Ceja (1993) 4 Cal.4th 1134, 1139.)

These elements distinguish lying-in-wait murder from other murders, both morally

and legally. " 'Murder committed by lying in wait has been "anciently regarded . . . as a

particularly heinous and repugnant crime." [Citation.]' [Citation.] The moral culpability

of the offender who murders by lying in wait justifies fixing the murder in the first

degree." (People v. Stanley (1995) 10 Cal.4th 764, 795 (Stanley); accord, People v. Laws

(1993) 12 Cal.App.4th 786, 793 (Laws) ["The act of lying in wait with secret purpose in

order to gain advantage and take a victim unawares is particularly repugnant and of

aggravated character so as to justify harsher punishment when the lying in wait results in

murder . . . ."].)

12 Because "the prosecution must prove the elements of concealment of purpose

together with 'a substantial period of watching and waiting for an opportune time to act,

and . . . immediately thereafter, a surprise attack on an unsuspecting victim from a

position of advantage,' " a murder by lying-in-wait "present[s] 'a factual

matrix . . . distinct from "ordinary" premeditated murder . . . .' " (Stanley, supra,

10 Cal.4th at pp. 795-796.) And, unlike ordinary premeditated murder, a lying-in-wait

murder, committed with intent to kill, justifies the most severe punishment of death.

(People v. Sandoval (2015) 62 Cal.4th 394, 416.) While in both cases the ultimate harm

to the victim is the same, our laws and society have treated the two types of murders very

differently.

Because lying-in-wait murder requires proof of certain conduct, rather than a

"uniquely subjective and personal" mental state, the reasoning of Chiu is inapplicable.

(See Chiu, supra, 59 Cal.4th at p. 166.) The disconnect identified in Chiu between the

perpetrator's mental state and the aider and abettor's culpability is not present. (See ibid.)

A lying-in-wait murder is murder of the first degree based on the objective facts of the

perpetrator's conduct; it does not turn on the vagaries of the perpetrator's mind. It is

therefore consistent with longstanding principles of the natural and probable

consequences doctrine to hold the aider and abettor liable for first degree lying-in-wait

murder. The exception identified in Chiu for first degree premeditated murder does not

apply.

Gastelum points out that the elements of lying-in-wait murder act as the

"functional equivalent" of proof of premeditation and deliberation, thus linking lying-in-

13 wait murder to premeditated murder. (See People v. Boyette (2002) 29 Cal.4th 381, 435.)

The jury here was likewise instructed that the duration of lying-in-wait must show a state

of mind equivalent to deliberation and premeditation. But this functional equivalency

does not compel the same treatment under Chiu. The function of the different elements

may be equivalent, but they remain distinct. (Laws, supra, 12 Cal.App.4th at p. 795.)

One type of murder depends exclusively on the perpetrator's mental state; the other

depends on the factual circumstances of the killing. This distinction justifies the

application of Chiu in one instance but not the other.

We further conclude that extending Chiu is not warranted given Gastelum's

specific conduct and culpability for the lying-in-wait murder of Rodgers. In concluding

that a first degree premeditated murder conviction could not be based on the natural and

probable consequences, the court in Chiu reasoned that the mental state required for first

degree murder was uniquely subjective and personal to the perpetrator. Here, what

elevates the offense to first degree murder is the conduct of lying in wait—conduct in

which Gastelum and the perpetrator both engaged. None of this evidence regarding the

actors' shared conduct, in essentially hunting and then killing the victim, is challenged on

appeal. Because Gastelum was acting in lockstep with the perpetrator in lying in wait,

this situation is unlike Chiu, where the connection between the defendant's culpability

and the perpetrator's mental state was too attenuated to impose aider and abettor liability

14 for first degree murder.3 Gastelum was equally culpable for Rodgers's death. Imposing

a lesser punishment for the nontarget offense of second degree murder, as in Chiu, is not

warranted here.

For these reasons, we conclude Gastelum has not shown the trial court erred by

instructing the jury on the natural and probable consequences doctrine.

II

Special Circumstance Instruction

The trial court instructed the jury on the special circumstance of lying-in-wait

using CALCRIM No. 702, as follows: "If you decide that the defendant is guilty of first-

degree murder but was not the actual killer, then you must consider the special

circumstances of lying in wait under [section 190.2, subdivision (a)(15)]. You must also

decide whether the defendant acted with the intent to kill. [¶] In order to prove this

special circumstance for a defendant who is not the actual killer but who is guilty of first-

3 In Chiu, the target offense was assault or disturbing the peace. (Chiu, supra, 59 Cal.4th at p. 160.) The Court of Appeal in In re Brigham (2016) 3 Cal.App.5th 318, 327-329, held that Chiu applies even where the target offense is itself first degree premeditated murder. This decision does not alter our conclusion that Chiu is not properly extended to Gastelum's conduct here. In Brigham, the defendant intended to kill one victim (Chuckie) and tried to stop the perpetrator from killing a different individual. (Id. at p. 329.) The court concluded that the perpetrator's "independent, intentional, deliberate and premeditated decision to kill a different victim would reflect a personal and subjective state of mind that was insufficiently connected to [Brigham's] culpability for aiding and abetting the (intended) murder of Chuckie to justify holding [Brigham] liable for [the perpetrator's] premeditated independent act." (Ibid.) By contrast, as we have already discussed, Gastelum and the perpetrator were not acting independently of one another. To the contrary, Gastelum facilitated the perpetrator's actions and later celebrated the commission of their crimes, including the lying-in-wait murder of Rodgers. 15 degree murder as an aider and abettor, the People must prove that the defendant acted

with the intent to kill. [¶] If the defendant was not the actual killer, then the People have

the burden of proving beyond a reasonable doubt that he acted with the intent to kill [for]

the special circumstance of lying in wait . . . to be true. If the People have not met this

burden, you must find this special circumstance has not been proved."

Gastelum did not object to this instruction at trial. On appeal, Gastelum contends

the instruction was erroneous because it did not specify whom Gastelum must have

intended to kill in order for the jury to find the special circumstance true. Gastelum

argues that the jury could have understood the instruction to refer to J.W., rather than

Rodgers, and it could have found the special circumstance true based only on Gastelum's

intent to kill J.W.

As an initial matter, the Attorney General argues that Gastelum has forfeited this

contention by failing to object in the trial court. We agree. " 'A party may not complain

on appeal that 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.' " (People v. Landry (2016) 2 Cal.5th 52, 99-100.) Gastelum does not assert

that the special circumstance instruction was an incorrect statement of law. He argues

that the instruction was incomplete under the circumstances of this case. Because he did

not propose clarifying or amplifying language in the trial court, his claim is forfeited.

(People v. Maury (2003) 30 Cal.4th 342, 426; accord, People v. Burnett (2003)

110 Cal.App.4th 868, 875 [" '[W]hen a court has generally instructed on a point,

16 defendant must make a request for a more specific instruction or be deemed to have

waived the point on appeal.' "].)

Anticipating this result, Gastelum argues his counsel was constitutionally

ineffective by failing to propose language identifying Rodgers in the instruction. "To

establish ineffective assistance of counsel, a defendant must show that (1) counsel's

representation fell below an objective standard of reasonableness under prevailing

professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is

a reasonable probability that, but for counsel's failings, the result would have been more

favorable to the defendant. [Citation.] 'A reasonable probability is a probability

sufficient to undermine confidence in the outcome.' " (People v. Scott (1997) 15 Cal.4th

1188, 1211-1212.)

Even accepting that Gastelum's counsel should have proposed clarifying language,

we conclude Gastelum has not shown prejudice. The evidence supporting Gastelum's

intent to kill Rodgers was strong. Based on the unchallenged portions of the verdict, the

jury found that Gastelum went out with Gamboa to find and kill at least J.W. After

parking, they walked together in a circuitous route toward J.W., Rodgers, and L.M.

Gastelum and Gamboa approached the group, and Gastelum lured J.W. toward them by

calling out his nickname. When Gamboa started shooting at Rodgers and L.M., in

addition to J.W., Gastelum did not act surprised. Instead, he fled with Gamboa and

recorded a video celebrating the shooting. At the beginning of the video, Gastelum said,

"This video is for—fuck [J.W.] and all the niggas." He did not limit his celebration to

J.W. When Gamboa talked about shooting Rodgers multiple times, Gastelum remarked,

17 "He paid for a nigger's mistakes." Gamboa said, "I know I hit every single one of them.

Fuck yeah, they all got hit. That fool screamed like a little bitch." Gastelum responded,

"Oh, yeah." Gastelum's comments strongly support the conclusion that he intended the

killing of Rodgers as well as J.W.4

Gastelum's defense, by contrast, was that he did not intend to kill anyone. He

claimed to be surprised by the shooting and did not know Gamboa was carrying a gun.

The jury by its verdicts plainly found Gastelum's testimony not credible.

Given the state of the evidence, and the unchallenged portions of the jury's verdict,

there is no reasonable probability that the jury, or any single juror, would have made a

different finding on the special circumstance allegation if the instruction had identified

Rodgers specifically. The prosecution's evidence showed that Gastelum intended to kill

Rodgers as well as J.W. and celebrated his shooting afterward. Gastelum's contrary

testimony was rejected by the jury. Gastelum has not shown he is entitled to relief based

on ineffective assistance of counsel.

4 Gastelum argues that he had no motive to kill Rodgers, so the jury might have found he did not intend his killing. Motive is not a required element, but it is a factor the jury may consider. (People v. Stevenson (2018) 25 Cal.App.5th 974, 987-988; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) Here, Gastelum's own statements show his motive: "He paid for a nigger's mistakes," i.e., Rodgers paid for J.W.'s mistakes. Rodgers was killed because he associated with J.W. 18

III

Senate Bill No. 136

As noted, our Supreme Court granted review and transferred this matter for

reconsideration in light of newly-enacted Senate Bill No. 136, which amended Penal

Code section 667.5, subdivision (b). Prior to this amendment, the statute provided for a

one-year enhancement for each prior separate prison term, unless the defendant remained

free from both prison custody and the commission of a new felony for a five-year period

after discharge. (Former Pen. Code, § 667.5, subd. (b); People v. Buycks (2018)

5 Cal.5th 857, 889 (Buycks).) After the amendment, "a one-year prior prison term

enhancement will only apply if a defendant served a prior prison term for a sexually

violent offense as defined in Welfare and Institutions Code section 6600,

subdivision (b)." (Lopez, supra, 42 Cal.App.5th at pp. 340-341; see Pen. Code, § 667.5,

subd. (b), as amended by Stats. 2019, ch. 590, § 1.) The amended statute became

effective January 1, 2020. (Lopez, at p. 341; see Cal. Const., art. IV, § 8, subd. (c);

Gov. Code, § 9600, subd. (a).)

Because the judgment against Gastelum is not yet final, the amended statute

applies here. (People v. Jennings (2019) 42 Cal.App.5th 664, 681-682; accord, Lopez,

supra, 42 Cal.App.5th at p. 341; People v. Petri (Feb. 10, 2020) __ Cal.App.5th __ [2020

WL 614895, at *7]; People v. Winn (2020) 44 Cal.App.5th 859, 872.) And, because

Gastelum's prior prison term was for spousal abuse (§ 273.5, subd. (a)), not a sexually

violent offense, the one-year prior prison term enhancement can no longer be imposed on

him.

19 In general, when an error affects part of a sentence, we must remand for a full

resentencing on all counts and allegations. (Buycks, supra, 5 Cal.5th at p. 893.) But

where, as here, an enhancement is erroneously imposed and the trial court has already

imposed the maximum possible sentence, a remand for resentencing is unnecessary. (Id.

at p. 896, fn. 15.) We may simply strike the enhancement and affirm the judgment as

modified. (Lopez, supra, 42 Cal.App.5th at p. 342.) We do so here.

DISPOSITION

The judgment is modified to strike the one-year prior prison term enhancement

imposed under former section 667.5, subdivision (b). As so modified, the judgment is

affirmed. The trial court is directed to prepare an amended abstract of judgment and

forward it to the Department of Corrections and Rehabilitation.

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.

20