P. v. Casique

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Filed 1/28/19 P. v. Casique CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERNEST J. CASIQUE,
Defendant and Appellant.
B284945
(Los Angeles County
Super. Ct. No. MA065906)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa Strassner, Judge. Affirmed in part;
reversed in part and remanded with directions.
Michael Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Paul M. Roadarmel, Jr. and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________

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I. INTRODUCTION
Defendant Ernest Casique appeals from a judgment of
conviction following a jury trial. Defendant was convicted of
three counts of premeditated attempted murder pursuant to
Penal Code1 sections 664 and 187, subdivision (a), and all alleged
firearm and gang enhancements were found to be true.
Defendant contends the trial court erred by allowing a
witness to testify without first conducting a hearing to determine
whether the witness’s testimony was based on personal
knowledge. Defendant also contends the trial court erred by
instructing the jury on a kill zone theory with CALJIC No. 8.66.1.
Alternatively, he asserts remand is necessary to allow the trial
court to exercise its discretion to strike firearm enhancements
pursuant to section 12022.53, subdivision (h). Finally, defendant
requests the trial court recalculate his presentence conduct
credits which the court had improperly denied under section
2933.2. The Attorney General concedes that defendant’s latter
two arguments are well-taken.
We remand for the trial court to: consider whether to
exercise its discretion to strike or dismiss the firearm
enhancements pursuant to section 12022.53, subdivision (h);
award defendant 848 days of actual custody credit; and
recalculate defendant’s presentence conduct credits pursuant to
section 2933.1. The judgment is otherwise affirmed.
1 Further statutory references are to the Penal Code.

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II. BACKGROUND
A. Procedural History
Defendant’s first trial on this matter concluded in a
mistrial after the jury announced it was deadlocked. On
May 2, 2017, the Los Angeles County District Attorney charged
defendant by a second amended information with three counts of
attempted willful, deliberate, and premeditated murder (§§ 664,
subd. (a), 187, subd. (a)) of Susana H., Jorge E., and Alexander
E.2 on or about March 20, 2015. For Count 1, the information
alleged defendant personally discharged a handgun, causing
great bodily injury to Susana. (§ 12022.53, subds. (d) & (e)(1).)
For Counts 1, 2, and 3, the information alleged that a principal
discharged a handgun (§ 12022.53, subds. (c) & (e)(1)), and
personally used a handgun (§ 12022.53, subds. (b) & (e)(1)).
Finally, the information alleged defendant committed the three
offenses for the benefit of, at the direction of, and in association
with a criminal street gang, with the specific intent to promote,
further, and assist in criminal conduct by gang members
(§ 186.22, subd. (b)(5)).
On May 19, 2017, a jury convicted defendant of all three
counts, and found all firearm and gang enhancements to be true.
On August 25, 2017, the trial court sentenced defendant as
follows: for Count 1, to a life term (§ 664, subd. (a)), with
eligibility for parole after 15 years (§ 186.22, subd. (b)(5)).
Defendant was also ordered to serve an additional and
consecutive term of 25 years to life. (§ 12022.53, subd. (d).) The
20-year term mandated by section 12022.53, subdivision (c), and
2 Jorge and Alexander are brothers.

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the 10-year term mandated by section 12022.53, subdivision (b),
were stayed pursuant to section 654. For Count 2, defendant was
sentenced to a life term (§ 664, subd. (a)), with eligibility for
parole after 15 years (§ 186.22, subd. (b)(5)). Defendant was
ordered to serve an additional and consecutive 20-year term (§
12022.53, subd. (c)), and the 10-year term mandated by section
12022.53, subdivision (b) was stayed pursuant to section 654. For
Count 3, defendant was sentenced to a life term (§ 664, subd. (a)),
with eligibility for parole after 15 years (§ 186.22, subd. (b)(5)).
Defendant was ordered to serve an additional and consecutive 20-
year term (§ 12022.53, subd. (c)), and the 10-year term mandated
by section 12022.53, subdivision (b) was stayed pursuant to
section 654.
Defendant received 843 days of actual custody credit. The
trial court found defendant was not eligible for presentence
conduct credits, citing section 2933.2 and People v. McNamee
(2002) 96 Cal.App.4th 66. The trial court also imposed fines and
fees.
B. Prosecution Case
1. The Shooting—Susana’s Testimony
A county employee read to the jury Susana’s testimony
from the earlier trial. That testimony included the following: On
the evening of March 20, 2015, Susana, her boyfriend Jorge, and
Alexander were walking south on 20th Street toward Avenue R
in Palmdale, when they passed a 7-Eleven. Two cars drove up:
the first was a Mustang and the second a gray Scion. Susana
heard voices from the Mustang saying bad words. The driver of

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the Mustang continued to drive. The Scion stopped near Susana,
Jorge, and Alexander.
Two men got out of the Scion, one from the front passenger
seat, and one from the rear passenger-side seat. The two men
said some bad words and then started shooting at the three
pedestrians. The person who had gotten out of the rear
passenger-side seat shot first. He fired one shot and then got
back in the car. The person who had gotten out of the front
passenger seat fired about six shots. The shooters were
approximately 15 feet away from Susana. When the shooting
began, Jorge was standing next to Susana’s left shoulder, while
Alexander stood within one foot away from her right shoulder.
The shooting lasted a few seconds. Susana, Jorge, and Alexander
ran away. The second shooter got back in the car, and the car
drove away.
The street was lit and Susana clearly saw the faces of both
shooters. Susana identified the front seat passenger as Michael
Casique.3 She identified defendant as the rear seat passenger.
When Susana saw defendant in the rear passenger seat, she
recognized him right away as “Ernie,” a man with whom Jorge
had a “beef.”
As Susana ran away from the shooters, she felt a burning
sensation in her abdomen and in her right arm. She then fell to
her knees because she was blacking out. Susana was taken to
the hospital, where she underwent two surgeries and stayed
three weeks.
3 Defendant and Michael Casique are brothers and share the
same last name. We will refer to Michael Casique as “Michael.”

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2. Matthew Davis
Davis was a sheriff’s deputy. On March 20, 2015, in the
evening, Davis was at the 7-Eleven on 20th Street. Davis
returned to his patrol car in the parking lot and saw two men and
one woman walking on 20th Street. A few minutes after driving
away in his patrol car, Davis heard five to six gunshots. Davis
drove back toward the 7-Eleven and was flagged down by Jorge.
Jorge said, “She’s been shot.” Davis saw Susana on the sidewalk.
She had suffered two gunshot wounds.
3. Jorge’s Testimony
At the time of his testimony, Jorge was in custody for
failing to appear in court pursuant to a subpoena. His testimony
about the events leading up to the shooting was similar in many
respects to Susana’s testimony. He saw two people get out of the
car. One of them yelled “Fuck Sidas,” a derogatory term for
members of the Reseda 13 gang. Jorge was a member of Reseda
13. Just prior to shots being fired, Jorge had been walking
shoulder to shoulder with Susana and Alexander. Jorge saw only
one gun, which was held by the person who had gotten out of the
front of the car. Jorge pushed Alexander out of the way of the
gun and the two began to run. Alexander ran ahead of Jorge,
toward the high school. Jorge fell as he was running. Jorge
heard approximately five or six gunshots. One shot was fired
toward Jorge. The last shots were fired toward Alexander.
Jorge volunteered that defendant was not the shooter:
“Look, he didn’t do it, and that’s all I’m going to say.” “I just
want everyone to hear that. He didn’t do it.” Jorge stated that he

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saw the person who got out of the front seat holding a revolver.
He did not see the second person with a gun.
4. Robert McGaughey
a. Investigation
Sometime after the shooting, Detective McGaughey spoke
with Jorge at the sheriff’s station. Jorge stated that the man who
exited the front passenger seat was holding a silver revolver.
Jorge described the man who got out from the rear passenger
seat as Hispanic, skinny, with short hair. He wore a black hat
with a red bill and the letter “C” in red with white outlining. He
wielded a 9-millimeter Glock.
On April 3, 2015, McGaughey interviewed Jorge. The
recording of the interview was played for the jury. During that
interview, Jorge stated that he saw two people with guns on the
night of the shooting. Jorge identified a photograph of Michael
from a photo lineup and was 95 percent sure that he was the man
who got out of the front passenger seat. Jorge identified a
photograph of defendant from a photo lineup as the man who got
out of the rear passenger seat. When Detective McGaughey
asked Jorge “[w]hich one shot,” Jorge responded, “Both.” When
asked whether he saw a muzzle flash from both guns, Jorge
stated that he saw only Michael shoot his gun.
McGaughey obtained messages from defendant’s Facebook
account. At 10:08 a.m. on March 20, 2015, defendant sent a
message to a friend identified as “Reyes Blazed,” “We don’t got
time for no hoes today, my boy. We going on ah mission today.”
McGaughey testified the term “mission” was used by gangs to

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refer to going out together as a group. The overall goal of a
mission was to intimidate the public and obtain respect from
rivals. Reyes wrote back, “I’m go with ya foos.” At 11:36 a.m.,
defendant messaged Reyes “[y]ou got 32 bullets,” referring to .32-
caliber bullets. At 11:36 a.m., defendant messaged his friend
“[b]ring em.”
On May 1, 2015, McGaughey executed a search warrant at
a house where defendant and Michael lived. When McGaughey
arrived at the house, he saw defendant standing outside.
Defendant was wearing the hat described by Jorge.
b. Gang expert
The parties stipulated that the Palmas 13 Kings was a
criminal street gang and on March 20, 2015, it was engaged in a
gang rivalry with Reseda 13. The shooting on March 20, 2015,
occurred outside of Palmas 13 Kings territory. Gang members
feel disrespected if rival gang members walk through their
territory.
McGaughey was a gang expert. He testified that defendant
and Michael were members of the Palmas 13 Kings gang; and
Jorge was a self-admitted member of the Reseda 13 gang. Jorge
had gang tattoos, including “Reseda,” over his left eyebrow.
McGaughey had previously interviewed defendant’s girlfriend.
That interview was played for the jury. Defendant’s girlfriend
stated defendant had a “beef” with a guy named “Reseda.”
McGaughey considered a hypothetical scenario based upon
the facts of this case. McGaughey opined that the three
attempted murders in the hypothetical were for the benefit of and
in association with a criminal street gang.

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It was common for witnesses or victims to not come forward
to report criminal activity by a gang. It was also common for
witnesses to give information to law enforcement about gang
activity only to later deny making the statements.
5. Defendant’s statement
On May 2, 2015, McGaughey interviewed defendant. A
recording of the interview was played for the jury. During the
interview, defendant stated, “I never shot a gun in my life.”
Defendant denied any involvement in the shooting and also
denied being a Palmas 13 Kings gang member.
C. Defense Case
Michael testified as a defense witness. He admitted being a
member of the Palmas 13 Kings. On the day of the shooting,
Michael was at the 7-Eleven. He left the store in a grayish or
greenish Mustang driven by his girlfriend. They drove to his
house. Michael denied shooting at anyone. Upon arriving at his
house, Michael heard three or four gunshots. Michael denied
that defendant was at the 7-Eleven that day.
D. Rebuttal
McGaughey testified that he interviewed Michael on
April 2, 2015, while Michael was in custody, about the night of
the shooting. Michael stated he was at home on the night of the
shooting, when he heard gunshots. Michael did not mention
being at the 7-Eleven.

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III. DISCUSSION
A. Jorge’s Testimony about Hearing Two Guns
Prior to trial, defense counsel moved to exclude evidence
that Jorge had heard from a medical doctor that two different
types of bullets were found in Susana’s body. Defense counsel
argued it was hearsay. Both parties agreed not to elicit such
testimony.
During Jorge’s testimony, the prosecutor asked Jorge if he
told McGaughey that he had seen “the back-seat passenger with
what appeared to be a Glock 9-millimeter?” Jorge responded,
“No. I told him that, um, we had heard two guns and two
different kinds of guns, but I never told him that there was two
shooters. I told him that we had heard two types of guns, but
um, ‘cus she got hit with two different types of bullets.” Defense
counsel objected and moved to strike. The trial court agreed and
struck “‘she got hit by two types of guns.’”
Two questions later, the prosecutor asked, “The person–let
me go back a second. Just a moment ago you said you heard two
different types of guns?” Defense counsel objected and requested
a side bar conference.
At side bar, defense counsel stated, “I don’t ever remember
him saying to the detective that he heard two different types of
guns. I think what he is alluding to when he said he heard is
that he heard that there were two different types of guns because
of bullets. [¶] I think before this is published or inquired by the
jury he should be taken outside of the presence of the jury and
asked the questions, because I think this is directly going to the
statement made by the doctor.”

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Although the prosecutor conceded that Jorge’s prior
recorded statements did not indicate he heard two different types
of guns, he argued that Jorge hearing two guns, which would not
be hearsay, was distinct from hearing that Susana was hit by two
different bullets.
Defense counsel argued he interpreted Jorge’s testimony to
mean Jorge had obtained the information from Susana’s doctor.
“So what I’m saying is any further inquiry into this area is going
to lead, potentially, to him to say, no, I didn’t hear two different
guns. I heard that she was shot by two different guns, and that’s
why I’m saying before we go in here, which I don’t think we
should, it should be done outside the presence of the jury to
determine exactly what he’s saying.” (Italics added). The court
responded, “I’m not inclined to do that.”
Defense counsel then repeatedly requested that the court
conduct a hearing outside the presence of the jurors before the
prosecutor be permitted to ask further questions about Jorge
hearing two different types of guns. The court then asked the
prosecutor, “Well, let me ask you this question. Are you planning
on going any further?” The prosecutor stated “No. I mean, in
light of this, I’m just going to leave it alone because I told the
court I would not elicit this information, and I’m not intending to
try and do that.”
Court and counsel then engaged in the following exchange:
“The court: Okay. Right. What’s out is out, which is ‘I heard two
different types of guns,’ and I believe [the prosecutor] is going to
move on.” [¶] [Defense Counsel]: Fine. [¶] The court: Anything
further? [¶] [Defense counsel]: No. [¶] The court: Are you
okay? [¶] [Defense counsel]: Leave it like that.” Following the

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side bar conference, the prosecutor asked questions about a
different topic.
Defendant contends the trial court erred by admitting
Jorge’s testimony that he heard two different guns, without
holding an evidentiary hearing outside the presence of the jurors.
But counsel only requested an evidentiary hearing prior to the
prosecutor asking any further questions about hearing two
different guns. Although the court stated it was not inclined to
hold such a hearing, defendant was not prejudiced by the court’s
indicated ruling because based on defense counsel’s stated
concerns, the prosecutor agreed not to ask any further questions
on this topic and did not do so. Defendant did not seek any
further relief. For instance, defendant did not request that the
trial court strike Jorge’s earlier statement, “I told him that we
had heard two types of guns.” Defendant has therefore forfeited
his argument on appeal. (People v. Roberts (1992) 2 Cal.4th 271,
297.)
Moreover, even if defendant had not forfeited the argument
on appeal, he would not prevail on the merits. We review the
trial court’s rulings on evidentiary questions for an abuse of
discretion. (People v. Thompson (2010) 49 Cal.4th 79, 128.) A
witness can testify about a matter for which he has personal
knowledge. (Evid. Code, § 702, subd. (a).) “A witness’ personal
knowledge of a matter may be shown by any otherwise
admissible evidence, including his own testimony.” (Id., § 702,
subd. (b).) The trial court did not abuse its discretion by
admitting Jorge’s testimony that he heard two different kinds of
guns, as the statement itself sufficiently demonstrated that Jorge
had personal knowledge about the matter, that is, what he heard.
Jorge’s testimony, “I told him that, um, we had heard two guns

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and two different kinds of guns, but I never told him that there
was two shooters[,]” was expressed as a complete thought. His
next statement, “I told him that we had heard two types of guns,
but um, ‘cus she got hit with two different types of bullets[,]” can
fairly be understood as Jorge’s attempt to reiterate the
correctness of what Jorge “had heard.”
Defendant nonetheless contends the trial court erred
because Jorge never previously stated he had heard different
sounds from different guns and officers did not testify about
finding shell casings at the scene.4 The existence of conflicting
evidence, however, does not affect whether Jorge had personal
knowledge that he heard two different types of guns. Moreover,
Jorge had previously told McGaughey that there were two
shooters, that he saw both Michael and defendant holding
firearms, and that both men shot their weapons. Accordingly, we
find the trial court acted within its discretion by admitting
Jorge’s testimony that he heard two different types of guns.
Defendant also argues the admission of Jorge’s testimony
violated his federal due process rights. Evidentiary error that
rises to the level of the complete preclusion of a defense could
violate a defendant’s due process right. (People v. Thornton
(2007) 41 Cal.4th 391, 452-453.) However, a trial court’s
application of state evidentiary law does not generally infringe on
a defendant’s ability to present a defense. (People v. Bacon (2010)
50 Cal.4th 1082, 1104, fn. 4.) Here, defendant was able to
4 Deputy Davis testified that he did not personally find any
shell casings at the scene and did not recall if anyone else found
such casings. He further testified that casings are automatically
ejected from a 9-millimeter semi-automatic firearm but must be
manually removed from the magazine of a revolver.

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present his defense, that he was not even present at the scene of
the shooting. Thus, there was no federal due process violation.
B. Kill Zone Instruction
Defendant contends the trial court erred by delivering
CALJIC No. 8.66.1. At trial, the court, over defendant’s
objection, instructed the jury: “A person who primarily intends to
kill one person, or persons, known as the primary target, may at
the same time attempt to kill all persons in the immediate
vicinity of the primary target. This area is known as the ‘kill
zone.’ [¶] A kill zone is created when a perpetrator specifically
intending to kill the primary target by lethal means also
attempts to kill anyone in the immediate vicinity of the primary
target. [¶] If the perpetrator has this specific intent and employs
the means sufficient to kill the primary target and all others in
the kill zone, the perpetrator is guilty of the crimes of attempted
murder of the other persons in the kill zone. [¶] Whether a
perpetrator actually intended to kill the victim either as a
primary target or as someone within a kill zone is an issue to be
decided by you.”5
5 In People v. McCloud (2012) 211 Cal.App.4th 788, 802,
footnote 7, the court criticized an earlier version of CALJIC No.
8.66.1: “By referring repeatedly to a ‘zone of risk,’ the instruction
suggests to the jury that a defendant can create a kill zone
merely by subjecting individuals other than the primary target to
a risk of fatal injury.” (Ibid.) The Court of Appeal explained that
the instruction as written lent itself to the conclusion that
individuals merely being in a zone of risk was sufficient to
demonstrate intent to kill for purposes of attempted murder. (Id.
at p. 802.)

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A conviction for attempted murder requires proof that the
defendant intended to kill the victim and a direct but ineffectual
act toward accomplishing that goal. (People v. Perez (2010) 50
Cal.4th 222, 229.) Implied malice is not sufficient for attempted
murder. (People v. Stone (2009) 46 Cal.4th 131, 139-140.) When
a defendant is charged with attempting to kill multiple victims,
guilt must be determined separately for each alleged victim. (Id.
at p. 141.) The doctrine of transferred intent, which permits a
conviction for murder when a defendant intends to kill a
particular victim but instead kills someone else, does not apply to
attempted murder. (People v. Bland (2002) 28 Cal.4th 313, 327-
328 (Bland).) “To be guilty of attempted murder, the defendant
must intend to kill the alleged victim, not someone else. The
defendant’s mental state must be examined as to each alleged
attempted murder victim.” (Id. at p. 328.)
Defendant contends that the trial court’s delivery of
CALJIC No. 8.66.1 permitted the jury to convict him of attempted
murder without finding that he intended to kill Susana and
Alexander. The contention obviously fails as to Susana because
the jury found true the allegation that defendant personally and
intentionally discharged a handgun causing great bodily injury to
her. Defendant does not challenge the sufficiency of the evidence
to support that finding and it establishes defendant’s conviction
for attempting to murder Susana did not rest on what defendant
believes is an improper kill zone theory of liability. We therefore
focus our discussion on defendant’s conviction for attempting to
Our Supreme Court has granted review in People v.
Canizales (2014) 229 Cal.App.4th 820, review granted
Nov. 19, 2014, S221958, which considered the kill zone
instruction.

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murder Alexander, reviewing the trial court’s purported error in
delivering the kill zone instruction under the reasonable
probability standard of harmless error described in People v.
Watson (1956) 46 Cal.2d 818, 836-837. (People v. Falaniko (2016)
1 Cal.App.5th 1234, 1245; People v. McCloud, supra, 211
Cal.App.4th at p. 803.)6 We conclude that even if the kill zone
instruction should not have been given, giving it was harmless.
First, the prosecutor did not refer to the kill zone theory at
all during closing argument. Rather, the prosecutor stated that
defendant must have “intended to kill that person,” and argued
that defendant was either the one who shot or was an aider or
abettor to his brother. An aider or abettor shares the guilt of the
actual perpetrator. (People v. Mendoza (1998) 18 Cal.4th 1114,
1123.) The jury was instructed on an aider or abettor theory by
CALJIC No. 3.01.7 Under either theory, however, the prosecutor
6 Defendant contends the instructional error should be
subject to review under the harmless beyond a reasonable doubt
standard of Chapman v. California (1967) 386 U.S. 18, 24.
Defendant’s assertion is premised on his argument that the kill
zone instruction was relevant to the prosecution’s theory of guilt.
The prosecution, however, did not argue that defendant was
guilty under a kill zone theory. The evidence likewise did not
support such a theory. “[T]o the extent the court erred in
instructing on a theory unsupported by the evidence, the error is
one of state law,” and subject to the Watson error analysis.
(People v. Falaniko, supra, 1 Cal.App.5th at p. 1245.)
7 The court instructed the jury: “A person aids or abets the
commission or attempted commission of a crime when he or she:
[¶] One, with knowledge of the unlawful purpose of the
perpetrator, and [¶] two, with the intent or purpose of
committing or encouraging or facilitating the commission of the

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asserted the elements of attempted murder included an intent to
kill the person.
Second, there was overwhelming evidence that defendant
intended to kill Alexander and Jorge as a traditional aider and
abettor to Michael. “To prove that a defendant is an accomplice
the prosecution must show that the defendant acted ‘with
knowledge of the criminal purpose of the perpetrator and with an
intent or purpose either of committing, or of encouraging or
facilitating commission of, the offense.’ [Citation.] ‘The aider and
abettor doctrine merely makes aiders and abettors liable for their
accomplices’ actions as well as their own.’” (People v. Gomez
(2018) 6 Cal.5th 243, 279.) Defendant and Michael were
members of the Palmas 13 Kings street gang. Prior to the
shooting, defendant sent a message to a fellow gang member to
bring bullets for a “mission.” Defendant and Michael approached
Susana, Alexander, and Jorge (a member of a rival gang, with
whom defendant had “beef”), and cursed at them. Defendant,
who travelled to the 7-Eleven with his brother, must have known
that Michael was armed (as was defendant) before the shooting
began, and both men began to fire their guns as they stood
approximately 15 feet away from their victims. Defendant shot
one bullet at Susana, striking her, while Michael shot multiple
bullets toward Alexander and Jorge, who ran in different
directions. This is evidence of a jointly planned shooting, one in
which the jury had strong reason to conclude defendant intended
crime, and [¶] three, by act or advice aids, promotes, encourages
or instigates the commission of the crime. [¶] To be guilty as an
aider or abettor, the defendant’s intent or purpose of committing
or encouraging or facilitating the commission of the crime by the
perpetrator must be formed before or during the commission of
the crime.”

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to aid and abet Michael in attempting to kill the victims who
defendant did not personally shoot. Coupled with the absence of
any reference to the kill zone theory in the prosecutor’s
argument, this demonstrates that there is no reasonable
probability that defendant would have obtained a more favorable
result in the absence of the kill zone instruction. (People v. Smith
(2005) 37 Cal.4th 733, 742 [“[T]he act of purposefully firing a
lethal weapon at another human being at close range, without
legal excuse, generally gives rise to an inference that the shooter
acted with express malice.”]; People v. Garcia (2012) 204
Cal.App.4th 542, 554 [firing multiple shots directly at small
group at close range gives rise to reasonable inference that
shooter intended to kill all in the group].)8
8 Defendant also argues that CALJIC No. 8.66.1 “was legally
erroneous in this case because it allowed the jury to convict
[defendant] if the jury found that the attempted murders of
[Susana and Alexander] were a natural and probable
consequence of Michael [] intending to kill Jorge [].” An aider or
abettor cannot be found guilty of first degree premeditated
murder under a natural and probable consequences theory.
(People v. Chiu (2014) 59 Cal.4th 155, 158, 166.) Defendant’s
argument is misplaced because the trial court did not instruct the
jury on natural and probable consequences, and the prosecutor
did not argue that the natural and probable consequences
doctrine applied.

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C. Remand for Trial Court to Exercise Discretion Whether to
Strike or Dismiss Section 12022.53 Firearm Enhancements
Defendant contends remand is necessary so that the trial
court may exercise its discretion whether to strike the firearm
enhancements pursuant to section 12022.53, subdivision (h).9
Subdivision (h) of section 12022.53 became effective
January 1, 2018, pursuant to Senate Bill 620. (Stats. 2017, ch.
682, § 2.) Prior to Senate Bill 620, a trial court lacked discretion
to strike or dismiss a firearm enhancement pursuant to section
12022.53. (People v. Chavez (2018) 22 Cal.App.5th 663, 708;
People v. Arredondo (2018) 21 Cal.App.5th 493, 506.) The
Attorney General concedes that because the judgment of
conviction was not yet final when Senate Bill 620 became
effective, the statutory amendments apply retroactively to
defendant. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-
1091; People v. Robbins (2018) 19 Cal.App.5th 660, 679.)
Accordingly, the case will be remanded to the trial court so that it
may consider whether to strike or dismiss the firearm
enhancements pursuant to section 12022.53, subdivision (h).
9 “The court may, in the interest of justice pursuant to
Section 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.”
(§ 12022.53, subd. (h).)

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D. Remand to Correct Award of Actual Custody Credit and
Recalculate Presentence Conduct Credit
Finally, defendant contends the trial court erred at
sentencing by not awarding him his full custody credit and
denying him any presentence conduct credit. Defendant was
arrested on May 1, 2015, and was in continuous custody until his
sentencing on August 25, 2017. The trial court therefore should
have awarded defendant 848 days of actual custody credits, not
843. Moreover, the Attorney General concedes, and we agree,
that the trial court erroneously concluded that defendant was not
eligible for any presentence conduct credit because he was
convicted of murder. If defendant had been convicted of murder,
he would indeed have been ineligible for presentence conduct
credits. (§ 2933.2.) Defendant, however, was convicted of
attempted murder. Thus, he was eligible for up to 15 percent of
the actual period of confinement as presentence conduct credits
(which would be 127 days). (§ 2933.1, subd. (c).) On remand, the
trial court should correct the custody credits to be 848 days and
recalculate defendant’s presentence conduct credits.

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IV. DISPOSITION
Defendant’s sentence is vacated and the matter is
remanded with directions for the trial court to consider whether
to strike or dismiss the firearm enhancements pursuant to
section 12022.53, subdivision (h). The trial court is also directed
to award defendant 848 days of actual custody credits and
recalculate defendant’s presentence conduct credits pursuant to
section 2933.1. The trial court is directed to issue a new minute
order and an amended abstract of judgment, and to forward the
amended abstract of judgment to the Department of Corrections
and Rehabilitation. In all other respects, the judgment is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P.J.
SEIGLE, J. 
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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