California Court of Appeals, Fourth District, Second Division
[REVIEW GRANTED BY CAL. SUPREME COURT]
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
APPEAL from the Superior Court of San Bernardino County. No. FVA1001265 Steven A. Mapes, Judge.
[Copyrighted Material Omitted]
Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant Michael Canizales.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant KeAndre Windfield.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
RAMIREZ P. J.
A jury convicted defendants, Michael Rafael Canizales and KeAndre Windfield of first degree murder (Pen. Code, § 187, subd. (a)),  during which a principal discharged a firearm proximately causing death (§ 12022.53, subds. (d) & (e)(1)), and two counts of attempted willful, premeditated and deliberate murder (§§ 664/187), during which a principal discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). The jury found that all the offenses were committed for the benefit of a criminal street gang. (§ 186.22, subd. (b)(1).) Canizales was sentenced to 25 years to life and two terms of 15 years to life and Windfield was sentenced to two terms of 25 years to life and two terms of 15 years to life plus 40 years. They appeal,
claiming jury instruction and sentencing error. We reject their contentions. Since we originally decided this case, the California Supreme Court in People v. Chiu (2014) 59 Cal.4th 155, 167 [172 Cal.Rptr.3d 438, 325 P.3d 972], held that “a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” Because we cannot conclude beyond a reasonable doubt that the jury based its verdict of first degree murder for Canizales on the legally valid theory that he aided and abetted premeditated and deliberate murder (ibid), we must reverse his conviction for that offense and offer the People the opportunity to retry him for first degree murder as an aider and abettor of that offense or to accept a reduction to second degree murder. We also direct the trial court to correct errors in Windfield’s abstract of judgment.
Issues and Discussion