Favor

I. FACTS AND PROCEDURAL HISTORY

On November 8, 2004, defendant accompanied two companions to the A & J Liquor store, which also operated a check-cashing business. Owner Paul Lee and employees Pablo Castaneda and Jose Huerta were working. Huerta had his back turned when two or three individuals entered the store and locked the door. Huerta heard a gunshot fired from near his head, and felt its discharge burn his head. He fell to the floor and stayed there. After the shot near his head, he heard three more gunshots and a cash register being opened. One of the intruders ordered, “Get the telephone, get the cameras, and I‟ll find you. You already know where.” A second person asked, “Where are the cameras?” Huerta answered that the cameras were in the back. When one of the men demanded his money, Huerta gave it to him. Huerta walked to the office in the back of the store, where the security videos were located. The man followed him, looked around inside the

2 room, then exited the store. After the intruders left, Huerta locked the door and found that Castaneda had been shot once in the head and was dead. Lee was lying on the ground and had been shot twice, once in the neck and once…

In this case, a jury found defendant guilty of two counts of robbery, as an aider and abettor, and guilty of two counts of attempted murder, on the theory that the nontarget offenses of attempted murder were a natural and probable consequence of the target offenses of robbery which defendant had aided and abetted. The jury further found that the attempted murders were willful, deliberate, and premeditated, under Penal Code section *872 664, subdivision (a) (section 664(a)). 1 The statute increases the punishment for attempted murder beyond the maximum otherwise prescribed, when those findings are found true by the trier of fact.

In People v. Cummins (2005) 127 Cal.App.4th 667 [ 25 Cal.Rptr.3d 860 ] (Cummins), the Court of Appeal held that as to the premeditation allegation under section 664(a), the trial court need only instruct that the jury must find that the commission of attempted murder was a natural and probable consequence of the target crime of robbery. It need not instruct that premeditation must also be a natural and probable consequence of the robbery. (Cummins, at pp. 680-681.) On the other hand, in People v. Hart (2009) 176 Cal.App.4th 662 [ 97 Cal.Rptr.3d…

Defendant was convicted of two counts of attempted murder on the theory that he aided and abetted the crime of robbery and that attempted murder was a natural and probable consequence of the robbery. Attempted murder is punishable by imprisonment for five, seven, or nine years. (Pen. Code, § 664, subd. (a) (hereafter section 664(a)); further undesignated statutory references are to this code.) However, if the attempted murder is “willful, deliberate, and premeditated,” then it “shall be punished by imprisonment ... for life with the possibility of parole.” (Ibid.) The jury in this case found that the attempted murders were committed willfully, deliberately, and with premeditation within the meaning of section 664(a). On that basis, the trial court sentenced defendant to consecutive life terms with the possibility of parole.

The trial court instructed the jury that it must determine whether “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 robbery.” But the trial court did not instruct the jury that it must determine whether a reasonable person in defendant’s…