Opinion
A163105
07-25-2023
THE PEOPLE, Plaintiff and Respondent, v. JOSE VEGA-ROBLES, Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 5-080176-01)
BOWEN, J. [*]
In 2012, a jury convicted defendant Jose Vega-Robles of conspiracy to sell controlled substances, attempted robbery, and the first-degree murders of Darrell Grockett and Marcelino Guzman-Mercado, finding true related gang and firearm enhancements. In 2017, we reversed Vega-Robles's first-degree murder conviction with respect to Grockett. (People v. Vega-Robles (2017) 9 Cal.App.5th 382 (Vega-Robles), disapproved in part by People v. Valencia (2021) 11 Cal.5th 818, 839, fn. 17.) He was subsequently resentenced for second degree murder on that count.
In 2019, Vega-Robles filed a petition seeking resentencing for both murder convictions under former Penal Code section 1170.95, now renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10.) The court granted the petition with respect to the Guzman-Mercado murder but denied it as to the Grockett murder. Specifically-after finding beyond a reasonable doubt that Vega-Robles, with the intent to kill, aided and abetted in Grockett's murder-the court concluded that he could still be convicted of second degree murder under current law and was therefore ineligible for resentencing. (See §§ 189, subds. (a) &(e)(3), 1176.2, subd. (a)(3).)
All statutory references are to the Penal Code unless otherwise specified.
On appeal, Vega-Robles argues the trial court's finding that he was a direct aider and abettor in Grockett's murder is not supported by substantial evidence. He also asserts this matter must be remanded for reconsideration of the gang and firearm enhancements in light of recent changes to the sentencing laws. We affirm the trial court's denial of resentencing with respect to the Grockett murder but reverse the firearm and gang enhancements and remand the matter so that the prosecutor can determine whether to retry them under current law. If the prosecutor elects not to retry the enhancements, the court shall resentence Vega-Robles accordingly.
I. BACKGROUND
The underlying facts are not materially in dispute. We take our summary from those portions of the record of conviction, including our prior opinion in this matter, which the trial court relied upon as both accurately reflecting the evidence in the trial record and admissible on the issue before it. Because we are focused here on the Grockett murder, we limit our factual recitation to evidence relevant to that issue.
"On October 7, 2004, then Contra Costa County Sheriff's Detective Shawn Pate noticed a Chevrolet pickup truck parked at a pullout along Crockett Boulevard. The truck was locked; the keys were inside the truck. Darrell Grockett's body was lying face up on the ground behind it. Grockett had tattoos on his forehead and upper torso. He had $2,000 in his left front jacket pocket. He had gunshot wounds to the mouth, finger, and left torso. Eleven cartridge casings and six bullets were recovered from the scene. Some of the rounds had passed through the front of the body into the dirt beneath. Eleven cartridge cases, 10 bullets, and one bullet fragment were submitted to the crime lab for ballistics analysis. The analysis established three rounds were fired from a .38- or .357-caliber firearm and seven rounds were fired from a nine-by-19 millimeter gun. From the bloodstains at the scene, it appeared that Grockett first was shot while standing and then shot additional times while lying on the ground." (Vega-Robles, supra, 9 Cal.App.5th at pp. 393-394.) The following is among the additional evidence adduced at trial:
1. Vega-Robles's Drug Trafficking Connections
i. Ricardo Ruiz
Ruiz's primary relationship was with Vega-Robles's brother Sergio. He also knew the brothers' cousin, who was nicknamed "Primo." Sergio was involved in selling" 'crystal'" and" 'coke,'" which he obtained in Los Angeles. Vega-Robles was involved in drug sales with Sergio. Vega-Robles's job was" 'selling dope.'" Ruiz knew this because" 'they used to come to my house all of the time and did their business there and I seen it.'" Vega-Robles" 'was higher on the food chain than a street dealer.'" In 2003 and 2004, Vega-Robles and Sergio dealt in pound quantities. Primo was also involved in the family drug sales. Ruiz worked for both Sergio and Vega-Robles. He assisted them in their drug sales by picking up and delivering the drugs. Ruiz also acquired methamphetamine from Vega-Robles, Sergio, and others, which he resold in small quantities. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 389-390.)
Before and during 2004, Ruiz was affiliated with Richmond Sur Trece, a Surenos gang. Ruiz knew who Coby Phillips was and had facilitated a drug sale from Sergio to Phillips. However, he did not associate with Phillips because Hispanic and White groups do not associate. Phillips had a leprechaun or shamrock tattooed on his face near his eye. Ruiz was present when Sergio talked to Phillips about a drug transaction. Ruiz went with Vega-Robles and Sergio a few times to Phillips's house to drop off drugs. Ruiz also went with Primo to sell drugs at different places. On one occasion, Ruiz guarded a car containing drugs on a street in San Pablo at the request of Vega-Robles and Sergio. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 389390.)
ii. Timothy Covey
Covey was a member of the Family Affiliated Irish Mafia (FAIM), which his brother Tom co-founded with Phillips and two others. Covey had several tattoos on his body, including one on his arm that said "FAIM" and one on his shoulder that said "FAIMLY." The gang recruited members through the prison system. According to Covey, belonging to the gang made" 'things a lot easier'" for him when he was in jail in Contra Costa County. In late 2004 to early 2005, Covey personally knew about 30 FAIM gang members. Covey testified that the purpose of forming the gang was to use" 'muscle'" to" 'help our drug trade.'" (See Vega-Robles, supra, 9 Cal.App.5th at pp. 388, 392, 403.)
Covey knew that Phillips purchased drugs from Vega-Robles because he witnessed the transactions. Covey started purchasing methamphetamine directly from Vega-Robles after Phillips went to jail. Vega-Robles would" 'front'" Covey a pound or two of methamphetamine, which Covey would resell to" '[m]ostly sellers'" and then pay Vega-Robles out of the sales proceeds. At the time, Covey considered Vega-Robles" 'family.'" By the time of trial, however, Covey no longer considered him a friend. Covey still owed Vega-Robles money for drugs, but he had made no effort to pay him back. Covey testified that if Vega-Robles were released," 'we'd have to deal with it[,] obviously.'" Covey had a falling out with some members of FAIM after he became romantically involved with Stacey Taylor, Phillips's wife. He made no deal for immunity from prosecution in this case, stating he was" 'just telling the truth.'" (See Vega-Robles, supra, 9 Cal.App.5th at p. 392.)
iii. Stacey Taylor
Taylor married Phillips in November 2003. She had known him since she was 13. She knew Vega-Robles as Phillips's friend" 'Carlos,'" who supplied him with methamphetamine which Phillips resold to other drug dealers. Phillips was a member of the FAIM gang, as were Tom Covey and about 100 others. Phillips had shamrock tattoos on his face and a shaved head. The large shamrock on the back of his head had the letters FAIM in the middle of it, and he had a swastika tattooed on the top of his head. Taylor concluded drug dealing was the primary activity of the gang. She knew Phillips obtained methamphetamine from Vega-Robles and Sergio (as well as a couple of others) in 2004 because she was with Phillips and a lot of the time it was at their house. Phillips bought varying amounts of product from Vega-Robles, sometimes as much as 10 pounds. She did not know exactly where Vega-Robles got the methamphetamine, but she knew it came from Mexico. Phillips resold" 'sales quantities'" (as opposed to" 'street level quantities' ") of the drugs, typically to other FAIM members. (See Vega-Robles, supra, 9 Cal.App.5th at p. 390.)
Taylor sometimes counted the drug money for Phillips. Between 2003 and 2005, the most cash Taylor had ever seen Phillips with that was connected to drug sales was about $100,000. Taylor knew Phillips also received guns as payment for drugs because she was present when Phillips discussed drugs for guns with Vega-Robles and Sergio. Taylor knew that her brother, Clayton Cates, transported drugs because she was there when he left and when he returned. She also went with Phillips a few times to drop off or pick up a pound of drugs. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 390391.)
Taylor began a romantic relationship with Tim Covey several months after Phillips went to jail on the current charges. Taylor and Phillips got back together after Phillips was released from jail for lack of evidence, but then separated for good in early 2007 after a domestic violence incident on New Year's Eve in 2006. At that point, she and Covey moved away and stopped associating with Vega-Robles and the rest of the group because everyone was upset about her relationship with Covey. She did, however, remain on friendly terms with Jamie Beckwith, Vega-Robles's girlfriend. (See Vega-Robles, supra, 9 Cal.App.5th at p. 391.)
Taylor understood that she was testifying under a grant of immunity stemming from her cooperation in certain murder prosecutions with respect to a shooting in Solano County. The agreement, which was executed after the first of three related trials, involved relocation for her and Covey if she agreed to tell the truth. Taylor admitted she had lied to the police when she provided Phillips with an alibi for the Grockett murder. In addition, she had previously committed perjury in a jury trial to exonerate Phillips from domestic violence charges and at a jury trial in Solano County. She lied at the Solano County trial because she was afraid of retaliation if she testified truthfully. She felt safe after relocation and did not need to worry about something happening because of her testimony in the current case. Taylor received $1,500 a month from the state's witness relocation fund for rent and other incidentals for herself, her four children, and Tim Covey, with whom she still lived. Her brother, Clayton Cates, pleaded guilty to voluntary manslaughter and received a one-year jail sentence in the Solano County case. Cates also received relocation money. (See Vega-Robles, supra, 9 Cal.App.5th at p. 391 &fn. 2.)
In this same Solano County prosecution, Covey refused to testify against a FAIM member. The United States government relocated him and his family to a different state after he began to receive threats. He felt he needed to relocate before he could testify. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 392-393.).
iv. Clayton Cates
Cates testified that from 2004 to 2007, Phillips made money by selling methamphetamine. Cates participated in Phillips's drug trafficking activities. According to Cates, Phillips obtained his methamphetamine from Vega-Robles and Sergio. Cates met Vega-Robles and his brother through Phillips. On three or four occasions, Cates transported drugs from Los Angeles to the Bay Area for Sergio. Sergio provided Cates with the car he drove to Los Angeles. Cates would leave the car at a predetermined spot in Los Angeles and pick up the car later that day. He then drove it to Sergio's house in the Bay Area. Cates saw people take drugs from the panels inside the car. He was paid about $3,000 per trip. Cates knew Phillips got his drugs from Sergio because Cates heard Phillips talking about it. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 391-392.)
Cates knew Phillips and the Covey brothers were in the FAIM gang because of their tattoos. Phillips had shamrocks tattooed on his face and head, and the Covey brothers had FAIM tattooed on their arms. Cates denied he was ever a member of FAIM. He did not have any tattoos. In 2008, Cates was arrested on drug-related charges involving Cates's delivery of drugs to a third party. He was also" 'in trouble'" on a 2007 murder charged out of Vallejo that also involved his sister. Cates pleaded guilty in the drug trafficking matter, received a suspended sentence of 11 years, and was placed on probation. He was given immunity to testify in the Vallejo matter. He was also in witness relocation. (See Vega-Robles, supra, 9 Cal.App.5th at p. 392.)
v. Jamie Beckwith
Jamie Beckwith was Vega-Robles's girlfriend from 2003 to 2007, and she had two daughters with him. At that time, Vega-Robles did not have a job; he sold drugs which he told her, and she believed, he obtained from Mexico. Beckwith knew his brother, Sergio, was also involved in selling drugs from being around them all of the time and overhearing conversations. Vega-Robles and Sergio worked together, but Vega-Robles was" 'more of the leader.'" Sergio sold more cocaine, whereas Vega-Robles sold crystal methamphetamine by the pound. Their cousin Primo worked for Vega-Robles in the drug business, delivering and picking up" 'money and stuff like that.'" The largest quantity of methamphetamine Beckwith heard Vega-Robles discuss was 30 pounds, and the greatest amount of money was around $400,000. (See Vega-Robles, supra, 9 Cal.App.5th at p. 393.)
Beckwith also knew Phillips, who bought drugs from Vega-Robles. Phillips did not hang out with people who were not White or Irish, except for Vega-Robles. Timothy Covey associated with Phillips. After Phillips went to jail in late 2004 or early 2005, Phillips had Covey" 'take care of [Phillips's] business and take care of his household duties,'" and Covey started doing drug transactions with Vega-Robles. Beckwith knew Ricardo Ruiz" 'through [Vega-Robles's] people that he knew and met up with.'" Beckwith socialized with Stacey Taylor. (See Vega-Robles, supra, 9 Cal.App.5th at p. 393.)
Beckwith reported seeing Vega-Robles, Sergio, Primo, and Covey all carrying guns. In 2004 and 2005, Vega-Robles" 'always'" carried a gun, which he kept in the center console of his vehicle. Beckwith knew, by" 'talking to everybody,'" that Cates picked up drugs somewhere in Los Angeles for both Vega-Robles and Sergio. In 2005, Vega-Robles told Beckwith there was a warrant for his arrest, and he left for Mexico. Covey later drove Beckwith to Mexico to see him. Vega-Robles was ultimately arrested in 2007 when he returned to the United States. Taylor and Covey took Beckwith to see him in jail in Petaluma. (See Vega-Robles, supra, 9 Cal.App.5th at p. 393.)
2. The Grockett Murder
In 2004, Sally Sinclair and Darrell Grockett came up with a plan to sell methamphetamine together. Grockett had a connection with someone for getting methamphetamine, and Sinclair was going to buy five pounds of methamphetamine from him for $35,000. In late September or early October 2004, she gave him a $16,000 advance, but the deal was postponed. A few days later, Grockett came to her house with his girlfriend, Tara. Sinclair gave him another $13,000. Around 8:00 p.m., Grockett's cell phone rang, and he stepped outside to take the call. Shortly thereafter, he came back inside and said he would be right back. He left without Tara, without the money, and without saying where he was going. Sinclair and Tara waited for him for hours at a local bar. Tara tried to call Grockett numerous times without success. At some point, Sinclair spoke to Grockett's roommate on the telephone, who told her Grockett was dead. (See Vega-Robles, supra, 9 Cal.App.5th at p. 395.)
Stacey Taylor testified that Darrell Grockett was a friend of Phillips and had attended their wedding. Grockett had shamrock tattoos and was gang affiliated with the Aryan Brotherhood. Taylor witnessed drug deals between Phillips and Grockett. Grockett would come to their house and hand Phillips money and receive drugs in return. In October 2004, both Grockett and Phillips were out of custody. Phillips told Taylor they had a disagreement over drugs because Grockett did not want to pay what Phillips was asking. (See Vega-Robles, supra, 9 Cal.App.5th at p. 394.)
Around 7:00 or 8:00 p.m. on October 7, 2004, Taylor and Phillips went to a restaurant overlooking the Carquinez Bridge known as The Dead Fish. Before they left for the restaurant, Phillips told Taylor he was going to meet Grockett. Specifically, Phillips said that he and the other people he was meeting at the restaurant were going to shoot Grockett. According to Taylor, when she and Phillips arrived, Vega-Robles was there with Beckwith (his girlfriend), Sergio, and Primo. Phillips, Vega-Robles, Sergio, and Primo left the restaurant a short time later. According to Taylor, she and Beckwith remained at the restaurant. (See Vega-Robles, supra, 9 Cal.App.5th at p. 394.)
Beckwith remembered things slightly differently. She testified that once-on a date she did not recall-Vega-Robles dropped her off at The Dead Fish restaurant and Phillips dropped off Taylor. The two men then left together. She told Pate (then an investigator for the Contra Costa County District Attorney) that in the days leading up to her meeting with Taylor at The Dead Fish, she heard Phillips and Vega-Robles having a conversation about a drug deal that was less casual and more serious than most of their conversations about drug deals. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 393-394 & fn. 3.).
About 45 minutes to an hour later, Phillips, Vega-Robles, and the others returned to the restaurant. Taylor and Phillips went to a house in Rodeo, where Phillips wrapped some things in rags and gave them to a woman. Taylor knew the items were the guns used to shoot Grockett because Phillips told her he had to get rid of them. They did not stay at their home in Vallejo that night but, instead, went to a hotel in Vacaville. The next day they went to Taylor's parents' house, where they had sent their children a few days earlier. Phillips later asked Taylor to attend Grockett's funeral to avoid suspicion. They subsequently moved to a house in Cordelia, which Phillips rented from Sergio. Phillips put bulletproof glass over the sliding glass door and windows. Vega-Robles and Sergio both visited the Cordelia house. (See Vega-Robles, supra, 9 Cal.App.5th at p. 394.)
Timothy Covey testified he heard Vega-Robles and Primo joking in Spanish about Grockett's death after it happened. They were talking" 'about the guy with tattoos all over his face and making gestures. Like, bang, bang, bang.'" They made shooting gestures with their hands. Covey knew that Grockett had tattoos all over his face. According to Covey, the day after the Grockett shooting, Vega-Robles's and Phillips's families left town for Taylor's grandmother's house. When Vega-Robles and Phillips returned after the Grockett killing," 'everybody was pretty much let known that we needed to start carrying guns and we were all hanging around [Phillip's] house in Vallejo.'" By" 'we,'" Covey meant a close-knit group of FAIM members who were Phillips's associates. Shortly thereafter, Phillips moved to a house in Cordelia and put thick Plexiglas on all the sliding glass doors. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 395-396.)
3. FAIM Gang Evidence
Vallejo Detective Todd Tribble testified as an expert on street gangs, generally, and White street gangs and White prison gangs, specifically. In addition to receiving hundreds of hours in formal and informal training, Tribble had interviewed numerous gang members belonging to FAIM, a White supremacist gang. The symbol used by the gang is a shamrock, and they associate themselves with the color green. The Aryan Brotherhood, a prison gang, also uses the shamrock as a symbol. FAIM boasted more than 60 members. Tribble opined that FAIM was a criminal street gang and that its primary activity was the sales of significant quantities of methamphetamine. FAIM members interact with other groups and persons in the Bay Area criminal subculture to obtain their methamphetamine. Members of FAIM are involved with firearms, often possessing them illegally. Gang members regularly carry firearms because of the violent nature of drug trafficking. (See Vega-Robles, supra, 9 Cal.App.5th at p. 403.)
Phillips, Matthew Donohue III, Jason Donohue (Matthew's brother), and Thomas Covey founded FAIM in 1995 or 1996 in west Contra Costa County. Phillips and Matthew Donohue later expanded the gang in the state prison system. Phillips sported a small shamrock tattoo on his right cheek and a large shamrock tattoo with the letters FAIM tattooed inside the shamrock covering the back of his head. Phillips was validated as a member of FAIM by California's Department of Corrections in 1998. He was also associated with the Aryan Brotherhood. Timothy Covey was a member of FAIM in 2004. Taylor and Cates were associated with the gang. (See Vega-Robles, supra, 9 Cal.App.5th at p. 403.)
When asked to assume certain hypothetical facts mirroring the Grockett murder, Tribble testified that the killing was committed in association with FAIM because Phillips was a leader of the FAIM gang and was involved in the sales of methamphetamine, which he obtained from Vega-Robles, Sergio, and Primo. He further opined:" 'There was a noted association between those men, and the sales of the methamphetamine at the time was an activity that further promoted the gang FAIM.'" Assuming Grockett posed a threat to a member of FAIM, killing him would benefit FAIM. Tribble testified:" 'You no longer have a threat that's not only physically threatening a member or more than a member of the gang but that same physical threat would entail the threat of future sales of methamphetamine which is the primary activity of the gang. So, it would benefit the gang twofold.'" (See Vega-Robles, supra, 9 Cal.App.5th at pp. 403-404.)
4. Defense Evidence
The defense called Ralph Nash, a former member of the Nazi Low Riders, a prison gang. Nash was in prison in protective custody at the time of trial and was called to show Phillips killed Grockett for personal reasons not related to a drug conspiracy. Nash testified Grockett was an Aryan Brotherhood gang member. Grockett told Nash he was going to kill Phillips, and that he had put a gun to Phillips's head. Nash was ordered by the Aryan Brotherhood to kill Phillips because Phillips wore a shamrock tattoo he was not authorized to have, and because Phillips failed to carry out an order to kill a snitch. Nash denied receiving a call from Phillips in which Phillips told Nash," 'Dude, I killed him [Grockett], it's over.'" (See Vega-Robles, supra, 9 Cal.App.5th at pp. 404-405.)
Nash gave a statement to Pate in October 2009 but recanted to prison officials a few days later. His tape-recorded interview was played for the jury. In it, Nash told Pate and a prison gang investigator that FAIM was a street gang banging clique started around 1994 to protect White gang members from Blacks in Richmond and" 'sell drugs and make money.'" Older members wore shamrock tattoos. Nash knew [Vega-Robles], who was" 'real tight'" with Phillips," 'one of his boys.'" He met Sergio twice. All of them carried guns. He knew Clayton Cates through [Tom Covey]" 'and all them . . . [t]hey just all together sellin'. It's, like, one big family.'" He knew Sally Sinclair from dropping off drugs from Phillips at her house. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 392-393, 405.)
Nash was a close friend of Phillips and Grockett. Phillips and Grockett were cellmates at Pelican Bay State Prison. In 2004, Phillips asked Nash to" 'set up'" Grockett so Phillips could kill him. He wanted Nash to lure Grockett to a house in Rodeo. Nash did not want to be" 'dragged in no murder,'" so Nash twice warned Grockett that Phillips was" 'gunnin'" for him. Nash did not mention he was supposed to set Grockett up. Grockett just" 'shook it off.'" The day after Grockett's death, Phillips called Nash, stating:" 'It's over, man.... I killed [Grockett]. It's done.... That punk's over.... It's over. Come over. We need to talk.'" Nash did not know of anybody else involved in Grockett's killing. Nash owed Phillips $8,000 for methamphetamine. Phillips was his main source. Sometimes Phillips would send Tom Covey to him with the drugs. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 392, 405.)
According to Pate, Phillips told Taylor that he and Grockett were supposed to do something for the Aryan Brotherhood gang they did not do, and Phillips was worried Grockett was going to try to kill him over it. Taylor also said Phillips told her either he or Primo shot Grockett in the head, but she" 'got a feeling that all three of them [Phillips, Primo, and Vega-Robles]' " were involved in the shooting. (See Vega-Robles, supra, 9 Cal.App.5th at p. 406.)
When interviewed pursuant to Miranda in February 2007, Vega-Robles admitted knowing Ruiz and identified a photograph of him. Vega-Robles also admitted he knew Phillips, who he described as his" 'home-boy.'" He said he" 'served'" Phillips, meaning he sold drugs to Phillips. Vega-Robles also knew Tom Covey. (See Vega-Robles, supra, 9 Cal.App.5th at p. 406.)
Miranda v. Arizona (1966) 384 U.S. 436.
The defense additionally presented evidence suggesting that Robert Lott had his own motive to kill Grockett. Lott was indicted in February 2008 for the murders of Grockett and Guzman-Mercado, and the attempted murder of Hernandez. He eventually reached a deal in this case. Lott testified he had never met Vega-Robles. He had his own Mexican connections for drugs. Grockett was Lott's childhood best friend who nevertheless robbed him of money and drugs at gunpoint in 2003. He knew Grockett to be violent, and testified that Grockett committed assaults, robberies, and shootings. Grockett was also a drug seller and user who usually took his drugs forcibly from someone else. He was a member of the Aryan Brotherhood. On October 8, 2004, deputies located a burned-out van near the location where Grockett's killing took place. The van had been stolen from one of Lott's drug customers. (See Vega-Robles, supra, 9 Cal.App.5th at p. 406.)
B. Indictment, Verdict & Sentencing
By an indictment filed February 13, 2008, Vega-Robles and four codefendants (Sergio, Primo, Juan Antonio Delatorre, and Alejandro Figueroa) were charged with felony conspiracy to sell narcotic and nonnarcotic controlled substances from January 1, 2004, until November 20, 2005. (Health &Saf. Code, §§ 11352, 11378; § 182, subd. (a)(1), count one). The indictment alleged 19 overt acts in furtherance of the conspiracy, the majority of which related to the offenses charged in other counts. It also alleged that the conspiracy described in count one was committed for the benefit of two criminal street gangs, FAIM and the Surenos. (§ 186.22, subd. (b)(1).)
The indictment went on to allege two counts of first degree murder (§ 187, subd. (a), count two [Grockett] &count three [Guzman-Mercado]), felony attempted robbery of Guzman-Mercado (§§ 211, 212.5, subd. (c), 664, count four), felony residential burglary of Guzman-Mercado's residence (§§ 459, 460, subd. (a), count five), felony grand theft of Guzman-Mercado (§ 487, subd. (a), count six), and attempted first degree murder of Jose Hernandez (§§ 187, subd. (a), 664). As to counts two through six, it was alleged that the offenses were committed for the benefit of FAIM and the Surenos, criminal street gangs. (§ 186.22, subd. (b)(1).) As to counts two, three, and seven, it was alleged that a principal had intentionally used and discharged a firearm, causing death or great bodily injury and that the offenses were committed for the benefit of the Surenos and FAIM criminal street gangs. (§ 12022.53, subds. (b), (c), (d) &(e)(1).)
The court subsequently granted Vega-Robles's motion to sever the attempted murder charge (count seven).
During trial, the prosecutor agreed that the gang allegations with respect to the Grockett murder were limited to FAIM, and the gang allegations with respect to the Guzman-Mercado robbery-murder counts related solely to the Surenos.
Vega-Robles was tried alone before a jury from April 17 to June 8, 2012. At the conclusion of the trial, the jury convicted Vega-Robles of conspiracy, the murders of Grockett and Guzman-Mercado, and the attempted robbery of Guzman-Mercado, finding both murders to be of the first degree. It acquitted Vega-Robles of counts five and six (residential burglary and grand theft). In addition, the jury found true the allegations that Vega-Robles committed the conspiracy for the benefit of the Surenos and FAIM gangs; the Grockett murder for the benefit of the FAIM gang; and the robbery and murder of Guzman-Mercado for the benefit of the Surenos gang. With respect to the firearm allegations, the jury found true that a principal party intentionally discharged a firearm during the murder of Grockett and that the offense was committed for the benefit of the FAIM gang. With respect to the Guzman-Mercado murder, the jury found true the allegation that a principal party used a firearm and committed the offense for the benefit of an unspecified criminal street gang. After the court sentenced him to an indeterminate prison term of 85 years to life, Vega-Robles appealed. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 388-389.)
C. Appeal and Post-Appeal Matters
In 2017, we reviewed Vega-Robles's case, affirming the judgment with the exception of Vega-Robles's first-degree murder conviction involving Grockett, which we reversed for error under People v. Chiu (2014) 59 Cal.4th 155 (Chiu), superseded by statute on another ground as stated in People v. Lewis (2021) 11 Cal.5th 952, 959, fn.3. (See Vega-Robles, supra, 9 Cal.App.5th at pp. 417-418, 437.) Chiu held that "natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with 'reasonable concepts of culpability.'" (People v. Gentile (2020) 10 Cal.5th 830, 838 (Gentile), superseded by statute on another ground as stated in People v. Williams (2022) 86 Cal.App.5th 1244, 1252, fn. 9 [quoting Chiu, at p. 165]; see generally Chiu, at pp. 165-166.) Chiu further explained: "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (Chiu, at p. 167.)
Here, the prosecutor argued several theories before the jury in support of Vega-Robles's liability for the first degree murder of Grockett. (Vega-Robles, supra, 9 Cal.App.5th at p. 418.) Because we could not "conclude beyond a reasonable doubt the jury based its verdict on one of the legally valid theories before it-that [Vega-Robles] was either the direct perpetrator or directly aided and abetted the premeditated murder of Grockett by Phillips-rather than on the invalid theory that first degree murder was a natural and probable consequence of conspiracy to sell drugs," we reversed Vega-Robles's first degree murder conviction for the Grockett murder. (Ibid.) We instructed the People to decide on remand whether to accept reduction of count two to second degree murder, or to retry defendant for the first degree murder of Grockett under theories other than natural and probable consequences. (Id. at p. 437.) After the prosecution declined to retry Vega-Robles for first degree murder, he was resentenced to second degree murder on that count. His total revised sentence was 65 years to life in state prison.
D. Resentencing Petition
On October 15, 2019, Vega-Robles filed a petition to have both of his murder convictions vacated and to be resentenced under former section 1170.95. On November 23, 2019, the court concluded Vega-Robles had made a prima facie showing for relief and set the matter for hearing. After briefing and argument by the parties and review of the identified record of conviction, the superior court issued a detailed written order on April 12, 2021, denying the resentencing petition in part and granting it in part. With respect to the murder of Guzman-Mercado, the court granted the petition, vacated the first degree murder conviction, and recalled the sentence after determining that it could not find, beyond a reasonable doubt, that Vega-Robles was a major participant in the underlying felony that acted with reckless indifference to human life.
In contrast, the court concluded that Vega-Robles was ineligible for resentencing with respect to the Grockett murder because he was unable to establish one of the necessary criterion for relief-that he could not now "be convicted of murder or attempted murder because of changes to Section . . . 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).) Pursuant to those changes, a murder conviction is still allowable if the defendant, "with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree." (§ 189, subd. (e)(2).) The superior court found beyond a reasonable doubt that there was sufficient evidence in the record to demonstrate that Vega-Robles could still be convicted of second degree murder on this basis. On June 25, 2021, the court resentenced Vega-Robles to a total of 40 years and eight months to life in prison. This appeal followed.
II. DISCUSSION
A. Resentencing for the Grockett Murder
1. Resentencing Framework & Standard of Review
Senate Bill No. 1437 "transformed the law of accomplice liability for murder by' "amend[ing] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder." '" (People v. Langi (2022) 73 Cal.App.5th 972, 978 (Langi).) Specifically, effective January 1, 2019, section 189 was amended to provide: "A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2 [the statute defining felony-murder special circumstances]." (§ 189, subd. (e).)
The Legislature also added former section 1170.95 (now section 1172.6), which creates a procedure for offenders previously convicted under a felony-murder theory, the natural and probable consequences doctrine, "or other theory under which malice is imputed to a person based solely on that person's participation in a crime" to obtain the benefits of these changes retroactively. (Former § 1170.95, subd. (a); see now § 1172.6, subd. (a).) Under the statute, individuals convicted of murder can petition for relief in the court where they were sentenced if (1) the complaint or information filed against them allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine, or related theories; and (2) they were convicted of murder following a trial; and (3) they could not now be convicted of murder "because of changes to [s]ection 188 or 189." (Former § 1170.95, subd. (a); see now § 1172.6, subd. (a).) In most cases where the petitioner makes a prima facie showing that he or she is entitled to relief, the court must hold an evidentiary hearing. (§ 1172.6, subd. (d)(3).)
At such evidentiary hearings, the prosecution bears the burden of proving, "beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder" under state law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).) "A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (Ibid.) Our review on appeal, however, is for substantial evidence. (People v. Clements (2022) 75 Cal.App.5th 276, 282283, 302 [concluding that "the trial judge sits as a fact finder at a hearing under section 1170.95, subdivision (d) [now section 1172.6, subd. (d)] and that substantial evidence support[ed] the trial judge's finding beyond a reasonable doubt that Clements committed implied malice second degree murder"] (Clements); see also People v. Jones (2022) 86 Cal.App.5th 1076, 1087 [factual findings under former § 1170.95, subd. (d) [now section 1172.6, subd. (d)] are reviewed for substantial evidence].)
In reviewing the trial court's findings for substantial evidence, we apply well settled principles. "We' "examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding [the necessary fact] beyond a reasonable doubt."' [Citation.] Our job on review is different from the trial judge's job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder's findings beyond a reasonable doubt." (Clements, supra, 75 Cal.App.5th at p. 298.)
2. Aiding and Abetting Liability
"A person who aids and abets the commission of a crime is culpable as a principal in that crime." (Gentile, supra, 10 Cal.5th at p. 843.) An aider and abettor's guilt "is based on a combination of the direct perpetrator's acts and the aider and abettor's own acts and own mental state." (People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy); accord, People v. Powell (2021) 63 Cal.App.5th 689, 712-713 (Powell).) "Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus-a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea-knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus-conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez (2005) 35 Cal.4th 1219, 1225; McCoy, at p. 1117.) In general, neither presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. (See People v. Durham (1969) 70 Cal.2d 171, 181.) Whether a defendant is a direct aider and abettor is a question of fact, and all reasonable inferences must be resolved in favor of the judgment. (People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
As mentioned above, Vega-Robles was resentenced to second degree murder in this case due to Chiu error with respect to the Grockett murder. "[S]econd degree murder . . . is 'the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder.' [Citation.] Malice may be either express (as when a defendant manifests a deliberate intention to take away the life of a fellow creature) or implied. [Citation.] 'Malice is implied when the killing is proximately caused by" 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" [Citation.]'" (People v. Cravens (2012) 53 Cal.4th 500, 507; see CALCRIM No. 520.)
"[A]n aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life." (Gentile, supra, 10 Cal.5th at p. 850.) Unlike the natural and probable consequences doctrine, the implied malice theory of murder "requires that the prosecution demonstrate the defendant in fact acted with malice." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 106.) "Current law thus provides that the actual killer, or a direct aider and abettor of the killing who knew that his (or her) conduct endangered the life of another and acted with conscious disregard for life, may be guilty of second degree murder." (Langi, supra, 73 Cal.App.5th at p. 979; accord, Powell, supra, 63 Cal.App.5th at pp. 712-714.) Pursuant to Senate Bill 1437, the amendment of section 188, subdivision (a)(3) "bars a conviction for second degree murder under the natural and probable consequences theory" (Gentile, at p. 838), but the statute "did not . . . alter the law regarding the criminal liability of direct aiders and abettors of murder." (People v. Offley (2020) 48 Cal.App.5th 588, 595.)
3. Resentencing Hearing
The trial court held the resentencing hearing at issue in March 2021. It indicated that, in ruling on the petition, it would be considering the jury instructions and verdicts; any exhibits referenced by the parties; the trial transcript, excluding the new trial motion; the sentencing hearing transcript; the abstract of judgment; minute orders; the indictment; and the statement of facts set forth in Vega-Robles, supra, 9 Cal.App.5th 382 "to the extent [it] is consistent with what is in the trial record." Defense counsel argued that, even assuming the court found Taylor and Beckwith credible, there was no direct evidence of a conversation between Phillips and Vega-Robles about a plan to murder Grockett, and Phillips told Taylor afterwards that he and Primo did the shooting. Counsel also pointed to the defense evidence that Phillips had reasons completely unrelated to Vega-Robles for wanting to kill Grockett. In defense counsel's view, there was simply no evidence beyond a reasonable doubt that Vega-Robles aided and abetted the murder. The prosecutor disagreed, pointing specifically to Taylor's testimony that Phillips told her he and the men they were meeting at The Dead Fish (Vega-Robles, Sergio, and Primo) were going to shoot Grockett.
The trial court issued a detailed, written order on April 12, 2021, denying Vega-Robles's resentencing petition with respect to the Grockett murder. The court noted preliminarily that, to the extent there was a dispute about the applicable burden of proof-beyond a reasonable doubt or substantial evidence-it was applying both standards in making its determinations. It also stated that it would not consider certain hearsay statements made by Primo to Ruiz (which Ruiz had testified about at trial) in ruling on the petition. The court went on to conclude that Vega-Robles was ineligible for resentencing because he could still be convicted of second degree murder as a direct aider and abettor with the intent to kill Grockett.
The court concluded that Vega-Robles's actions "were at all times coordinated with Phillips." It found that Vega-Robles participated in a plan to kill Grockett by arriving at the Dead Fish at the appointed time with Sergio and Primo, given Taylor's testimony (which the court found "extremely credible") that Phillips and the others they were meeting at the restaurant were going to go shoot Grockett. Beckwith (whom the court also found "extremely credible") confirmed the meeting at the restaurant and that Phillips and Vega-Robles left together. Beckwith also stated that Vega-Robles always carried a gun during this timeframe and that Sergio and Primo also carried guns. Phillips later told Taylor he and Primo shot Grockett and the forensic evidence indicated at least two guns were used. The trial court concluded that, even if Vega-Robles was not one of the shooters, his actions were sufficient to support the inference that he aided with the intent to kill Grockett.
The court also found that Vega-Robles's subsequent actions supported the inference that he was present at the time of the murder with the intent to facilitate it. For instance, the group left the restaurant together and returned 45 minutes to an hour later, further supporting the inference that "there had been an agreed upon plan and that all had decided to act upon it in unison." In addition, the next day Phillips's family and Vega-Robles's family left together for a house in Northern California owned by one of Taylor's relatives. The court also highlighted Tim Covey's testimony that, after Grockett's death, Primo and Vega-Robles were joking about it and making shooting gestures with their hands, characterizing the incident as reflecting Vega-Robles's "encouragement of Phillips and Primo, the admitted shooters."
Finally, the court found that Vega-Robles had his own motive to kill Grockett or, at the least, to facilitate his murder. Vega-Robles supplied methamphetamine to Phillips for the purposes of sale. Phillips told Taylor there was a disagreement over drugs because Grockett did not want to pay what Phillips was asking. Phillips also told Taylor he was concerned Grockett was going to try and kill him because he and Grockett were supposed to do something for the Aryan Brotherhood they did not do. If Grockett posed a threat to Phillips, he was also a threat to Vega-Robles's drug distribution network.
4. Substantial Evidence Supports the Trial Court's Findings
On appeal, Vega-Robles asserts that the totality of the evidence and inferences here is too sparce and speculative to constitute substantial evidence establishing him as a direct aider and abettor in the Grockett murder. In making this argument, Vega-Robles characterizes the evidence before the court as follows: "A shooter said something to his wife; it happened; [he] was present; [he] was a friend and one drug connection of a shooter; and [he] may have joked about what happened later." Vega-Robles, however, seriously discounts the scope and the depth of the evidence presented in this case. Moreover, in applying the substantial evidence standard of review, we defer to the trial court's credibility findings and accept all reasonable inferences from the evidence. Under this standard, Vega-Robles's argument fails.
The trial court inferred from the totality of evidence before it that Vega-Robles was aware of the plan to kill Grockett and facilitated the execution of that plan by joining with the others to make it happen at the designated time and place. We find this inference to be a reasonable one. In addition to the many facts cited by the trial court in support of this conclusion, we note that Sinclair's testimony made clear that Phillips, not Grockett, instigated the meeting, as Grockett ran out on his girlfriend and a drug deal when he got the call. Further, Beckwith testified that Vega-Robles, Sergio, and Primo worked together selling drugs, but that Vega-Robles was "more the leader." And the evidence showed that Vega-Robles and Phillips were good friends. Nash testified that the two were" 'real tight,'" and Vega-Robles called Phillips his home-boy. Under the circumstances, it is reasonable to infer that it was Vega-Robles who brought Sergio and Primo into the murder plan. Finally, that the killing was planned in advance is further supported by the fact that Taylor and Phillips sent their children away a few days beforehand.
According to Vega-Robles, since Grockett was known to be an armed and violent individual, he could have provoked the murder, thereby negating a finding of malice. However, even if this might be a reasonable inference from the evidence, which we do not decide, it would be insufficient to undercut the trial court's reasonable conclusion to the contrary. Vega-Robles also asserts that there was no evidence he was armed with a gun during the altercation. But given all of the evidence about the principals' use of guns in this case, it is reasonable to infer that all four men were carrying guns into their meeting with Grockett, especially since Phillips believed Grockett was planning to kill him. In sum, substantial evidence supports the trial court's conclusion that Vega-Robles, with the intent to kill, aided and abetted Phillips in the first degree murder of Grockett, making resentencing pursuant to section 1172.6 unavailable.
B. Firearm & Gang Enhancements
1. Second Resentencing Hearing
After the court's decision vacating Vega-Robles's conviction for the murder of Guzman-Mercado, defense counsel noted in her resentencing memorandum that when Vega-Robles was first sentenced with respect to the Grockett murder in 2012, the trial court stayed the gang enhancement but imposed the gun enhancement. Arguing that the laws in this area had changed significantly in the intervening years, that there was no evidence that Vega-Robles was in a gang, and that there was strong evidence he was not the actual shooter, she asked the court to consider striking both enhancements in the interests of justice during resentencing. (§ 1385, subd. (a); § 12022.53, subd. (h) [granting court discretion to dismiss a gun enhancement under this section in the interests of justice]; People v. Fuentes (2016) 1 Cal.5th 218 [trial court may strike a § 186.22, subd. (b)(1) gang enhancement pursuant to § 1385, subd. (a)].)
On June 25, 2021, after argument from the parties, the trial court resentenced Vega-Robles to a total of 40 years and eight months to life in prison. Specifically, with respect to the Grockett murder, the court sentenced him-as it had at the previous resentencing-to an indeterminate term of 15 years to life, with a consecutive indeterminate term of 25 years to life for the gun enhancement under section 12022.53, subdivision (d) and (e)(1)(A) and (B). It stayed the section 186.22, subdivision (b)(1) gang enhancement. In doing so, the court expressly stated it had no discretion to strike the firearm enhancement under People v. Baltazar (2020) 57 Cal.App.5th 334 (Baltazar). For the count one conspiracy charge, the court sentenced Vega-Robles to a concurrent sentence of two years, with a concurrent three years for the gang enhancement (both the middle term). With respect to the count four attempted robbery conviction, the court sentenced Vega-Robles to one-third of the middle term, an additional eight months, and struck the gang enhancement.
As both parties acknowledge the abstract of judgment dated June 28, 2021, which memorializes this second resentencing improperly reflects that the count two offense is first degree murder (not second degree murder) and that the year the crime was committed was 2009 (not 2004). We will order the abstract corrected and mandate that any subsequent abstract of judgment based on further resentencing also reflect these corrections. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187 ["a court-including an appellate court-that properly assumes or retains jurisdiction of a case 'may correct [clerical] errors on its own motion or upon the application of the parties' "].)
2. Legal Framework
"In 2021, the Legislature passed Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333), which became effective on January 1, 2022 (see Stats. 2021, ch. 699). Assembly Bill 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a 'criminal street gang' to require that any gang be an "ongoing, organized association or group of three or more persons." (§ 186.22, subd. (f), italics added.) Second, whereas section 186.22, former subdivision (f) required only that a gang's members "individually or collectively engage in" a pattern of criminal activity in order to constitute a "criminal street gang," Assembly Bill 333 requires that any such pattern have been "collectively engage[d] in" by members of the gang. (§ 186.22, subd. (f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a "pattern of criminal activity" by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang "members," as opposed to just "persons"; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any 'common benefit' be 'more than reputational.' (§ 186.22, subd. (g).)" (People v. Tran (2022) 13 Cal.5th 1169, 1206.) These changes to section 186.22 apply retroactively to all nonfinal cases. (Tran, at pp. 12061207.)
In addition, "[effective January 1, 2018, Senate Bill No. 620 (20172018 Reg. Sess.) (Senate Bill No. 620) gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5 and 12022.53." (Baltazar, supra, 57 Cal.App.5th at p. 337.) As amended by that legislation, section 12022.53, subdivision (h) now provides that the court may, in the interest of justice pursuant to [s]ection 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section." The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law. In People v. Tirado (2022) 12 Cal.5th 688, 700 (Tirado), our high court held that courts have authority under section 1385 to reduce 25-years-to-life enhancements under section 12022.53 to lesser enhancements under that section.
3. Remand is Required
Vega-Robles argues, and the Attorney General concedes, that reversal of the gang enhancements in this case is required, subject to remand so that the prosecutor can elect whether to retry them under the amended law. We agree. (See People v. Delgado (2022) 74 Cal.App.5th 1067, 1091 [reversing true findings on a gang enhancement due to the changes wrought by Assembly Bill 333 and concluding that "the proper remedy is to remand to give the prosecution an opportunity to retry the gang enhancement under current law"].)
Vega-Robles also contends that the matter should be remanded so that the trial court can decide whether to exercise its discretion to strike the section 12022.53 firearm enhancement pursuant to section 1385 or consider imposing a lesser enhancement in accordance with Tirado. It is true that the trial court appears to have been unaware of its discretion in this regard. However, as the Attorney General points out, the firearm enhancement in this case was premised on the same gang finding called into question by Assembly Bill 333. (See § 12022.53, subds. (d), (e)(1)(A)&(B) [enhancement applies to a principal in the commission of a designated offense if that person violated subdivision (b) of section 186.22 and any principal committed the firearm act set forth in subdivision (d)].) We must therefore also reverse and remand the firearm enhancement. Should the prosecutor elect to retry the firearm enhancement as alleged and secure a true finding under current law, Vega-Robles is free to make any requests under section 1385 and Tirado at the time of resentencing.
III. DISPOSITION
The superior court's order denying resentencing under section 1172.6 with respect to the Grockett murder is affirmed. The jury's true findings as to enhancement allegations that Vega-Robles committed count one (conspiracy) and count two (the Grockett murder) for the benefit of criminal street gangs are reversed as is the firearm enhancement with respect to count two, which was also based on gang findings. The cause is remanded to provide the prosecution an opportunity to retry the criminal street gang enhancements and the gang finding underlying the firearm enhancement under current law. If the prosecutor elects not to do so, Vega-Robles should be resentenced in a manner consistent with this opinion. Finally, the trial court is ordered to correct the abstract of judgment memorializing the second resentencing, dated June 28, 2021, to reflect that count two is a second degree murder (not a first degree murder) and that the year the crime was committed was 2004 (not 2009). Any subsequent amended abstract of judgment based on further resentencing shall also reflect these corrections.
WE CONCUR: MARGULIES, ACTING P.J., BANKE, J.
[*] Judge of the Contra Costa County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.