People v. Cernogg CA2/3

Filed 9/3/15 P. v. Cernogg CA2/3 Opinion after reinstatement NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B210684

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA085192) v.

JAMES RUSSELL CERNOGG, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Eleanor J. Hunter, Judge. Reversed and remanded. Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Steven D. Matthews, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

INTRODUCTION A jury found defendant and appellant James Russell Cernogg, Jr., guilty of first degree murder and found true gun and gang enhancement allegations. The prosecution’s theory was Cernogg aided and abetted the first degree premeditated murder of Michael Pimental. The jury was therefore instructed they could find Cernogg guilty of murder as either a direct aider and abettor or under the natural and probable consequences doctrine. Our California Supreme Court, however, has found that an aider and abettor cannot be guilty of first degree premeditated murder under the natural and probable consequences doctrine. (People v. Chiu (2014) 59 Cal.4th 155 (Chiu).) Because we cannot determine beyond a reasonable doubt that the jury based its verdict on a valid theory, as opposed to the invalid natural and probable consequences doctrine, we reverse the judgment. FACTUAL AND PROCEDURAL BACKGROUND I. Factual background. On May 11, 2006, Camilo H. (“Dust”) and Michael Pimental (“Rest”)1 were hanging out with friends, including Michael Morales. Later that night, around 9:30 p.m. or 10:00 p.m., Camilo and Pimental were tagging. Camilo wrote “Dust” on a wall. Cernogg, who was on a bicycle, approached and asked why they were writing on the wall and where did they live.2 Camilo told him, “ ‘My bad.’ ” Cernogg told Camilo and Pimental to “ ‘[c]ome on’ ” with him. Camilo did not see Cernogg with a gun, but he thought he might have one. Cernogg “chirped” someone.3 The first and second times Cernogg called, there was no answer, but the third time somebody answered. Cernogg said, “ ‘I got them right [here],’ ” and he was told to “ ‘[h]old them right there.’ ”