10 Cal.4th at pp. 795-796.) And, unlike ordinary premeditated murder, a lying-in-wait
murder, committed with intent to kill, justifies the most severe punishment of death.
(People v. Sandoval (2015) 62 Cal.4th 394, 416.) While in both cases the ultimate harm
to the victim is the same, our laws and society have treated the two types of murders very
differently.
Because lying-in-wait murder requires proof of certain conduct, rather than a
"uniquely subjective and personal" mental state, the reasoning of Chiu is inapplicable.
(See Chiu, supra, 59 Cal.4th at p. 166.) The disconnect identified in Chiu between the
perpetrator's mental state and the aider and abettor's culpability is not present. (See ibid.)
A lying-in-wait murder is murder of the first degree based on the objective facts of the
perpetrator's conduct; it does not turn on the vagaries of the perpetrator's mind. It is
therefore consistent with longstanding principles of the natural and probable
consequences doctrine to hold the aider and abettor liable for first degree lying-in-wait
murder. The exception identified in Chiu for first degree premeditated murder does not
apply.
Gastelum points out that the elements of lying-in-wait murder act as the
"functional equivalent" of proof of premeditation and deliberation, thus linking lying-in-
13
wait murder to premeditated murder. (See People v. Boyette (2002) 29 Cal.4th 381, 435.)
The jury here was likewise instructed that the duration of lying-in-wait must show a state
of mind equivalent to deliberation and premeditation. But this functional equivalency
does not compel the same treatment under Chiu. The function of the different elements
may be equivalent, but they remain distinct. (Laws, supra, 12 Cal.App.4th at p. 795.)
One type of murder depends exclusively on the perpetrator's mental state; the other
depends on the factual circumstances of the killing. This distinction justifies the
application of Chiu in one instance but not the other.
We further conclude that extending Chiu is not warranted given Gastelum's
specific conduct and culpability for the lying-in-wait murder of Rodgers. In concluding
that a first degree premeditated murder conviction could not be based on the natural and
probable consequences, the court in Chiu reasoned that the mental state required for first
degree murder was uniquely subjective and personal to the perpetrator. Here, what
elevates the offense to first degree murder is the conduct of lying in wait—conduct in
which Gastelum and the perpetrator both engaged. None of this evidence regarding the
actors' shared conduct, in essentially hunting and then killing the victim, is challenged on
appeal. Because Gastelum was acting in lockstep with the perpetrator in lying in wait,
this situation is unlike Chiu, where the connection between the defendant's culpability
and the perpetrator's mental state was too attenuated to impose aider and abettor liability
14
for first degree murder.3 Gastelum was equally culpable for Rodgers's death. Imposing
a lesser punishment for the nontarget offense of second degree murder, as in Chiu, is not
warranted here.
For these reasons, we conclude Gastelum has not shown the trial court erred by
instructing the jury on the natural and probable consequences doctrine.
II
Special Circumstance Instruction
The trial court instructed the jury on the special circumstance of lying-in-wait
using CALCRIM No. 702, as follows: "If you decide that the defendant is guilty of first-
degree murder but was not the actual killer, then you must consider the special
circumstances of lying in wait under [section 190.2, subdivision (a)(15)]. You must also
decide whether the defendant acted with the intent to kill. [¶] In order to prove this
special circumstance for a defendant who is not the actual killer but who is guilty of first-
3 In Chiu, the target offense was assault or disturbing the peace. (Chiu, supra, 59 Cal.4th at p. 160.) The Court of Appeal in In re Brigham (2016) 3 Cal.App.5th 318, 327-329, held that Chiu applies even where the target offense is itself first degree premeditated murder. This decision does not alter our conclusion that Chiu is not properly extended to Gastelum's conduct here. In Brigham, the defendant intended to kill one victim (Chuckie) and tried to stop the perpetrator from killing a different individual. (Id. at p. 329.) The court concluded that the perpetrator's "independent, intentional, deliberate and premeditated decision to kill a different victim would reflect a personal and subjective state of mind that was insufficiently connected to [Brigham's] culpability for aiding and abetting the (intended) murder of Chuckie to justify holding [Brigham] liable for [the perpetrator's] premeditated independent act." (Ibid.) By contrast, as we have already discussed, Gastelum and the perpetrator were not acting independently of one another. To the contrary, Gastelum facilitated the perpetrator's actions and later celebrated the commission of their crimes, including the lying-in-wait murder of Rodgers. 15
degree murder as an aider and abettor, the People must prove that the defendant acted
with the intent to kill. [¶] If the defendant was not the actual killer, then the People have
the burden of proving beyond a reasonable doubt that he acted with the intent to kill [for]
the special circumstance of lying in wait . . . to be true. If the People have not met this
burden, you must find this special circumstance has not been proved."
Gastelum did not object to this instruction at trial. On appeal, Gastelum contends
the instruction was erroneous because it did not specify whom Gastelum must have
intended to kill in order for the jury to find the special circumstance true. Gastelum
argues that the jury could have understood the instruction to refer to J.W., rather than
Rodgers, and it could have found the special circumstance true based only on Gastelum's
intent to kill J.W.
As an initial matter, the Attorney General argues that Gastelum has forfeited this
contention by failing to object in the trial court. We agree. " 'A party may not complain
on appeal that an instruction correct in law and responsive to the evidence was too
general or incomplete unless the party has requested appropriate clarifying or amplifying
language.' " (People v. Landry (2016) 2 Cal.5th 52, 99-100.) Gastelum does not assert
that the special circumstance instruction was an incorrect statement of law. He argues
that the instruction was incomplete under the circumstances of this case. Because he did
not propose clarifying or amplifying language in the trial court, his claim is forfeited.
(People v. Maury (2003) 30 Cal.4th 342, 426; accord, People v. Burnett (2003)
110 Cal.App.4th 868, 875 [" '[W]hen a court has generally instructed on a point,
16
defendant must make a request for a more specific instruction or be deemed to have
waived the point on appeal.' "].)
Anticipating this result, Gastelum argues his counsel was constitutionally
ineffective by failing to propose language identifying Rodgers in the instruction. "To
establish ineffective assistance of counsel, a defendant must show that (1) counsel's
representation fell below an objective standard of reasonableness under prevailing
professional norms, and (2) counsel's deficient performance was prejudicial, i.e., there is
a reasonable probability that, but for counsel's failings, the result would have been more
favorable to the defendant. [Citation.] 'A reasonable probability is a probability
sufficient to undermine confidence in the outcome.' " (People v. Scott (1997) 15 Cal.4th
1188, 1211-1212.)
Even accepting that Gastelum's counsel should have proposed clarifying language,
we conclude Gastelum has not shown prejudice. The evidence supporting Gastelum's
intent to kill Rodgers was strong. Based on the unchallenged portions of the verdict, the
jury found that Gastelum went out with Gamboa to find and kill at least J.W. After
parking, they walked together in a circuitous route toward J.W., Rodgers, and L.M.
Gastelum and Gamboa approached the group, and Gastelum lured J.W. toward them by
calling out his nickname. When Gamboa started shooting at Rodgers and L.M., in
addition to J.W., Gastelum did not act surprised. Instead, he fled with Gamboa and
recorded a video celebrating the shooting. At the beginning of the video, Gastelum said,
"This video is for—fuck [J.W.] and all the niggas." He did not limit his celebration to
J.W. When Gamboa talked about shooting Rodgers multiple times, Gastelum remarked,
17
"He paid for a nigger's mistakes." Gamboa said, "I know I hit every single one of them.
Fuck yeah, they all got hit. That fool screamed like a little bitch." Gastelum responded,
"Oh, yeah." Gastelum's comments strongly support the conclusion that he intended the
killing of Rodgers as well as J.W.4
Gastelum's defense, by contrast, was that he did not intend to kill anyone. He
claimed to be surprised by the shooting and did not know Gamboa was carrying a gun.
The jury by its verdicts plainly found Gastelum's testimony not credible.
Given the state of the evidence, and the unchallenged portions of the jury's verdict,
there is no reasonable probability that the jury, or any single juror, would have made a
different finding on the special circumstance allegation if the instruction had identified
Rodgers specifically. The prosecution's evidence showed that Gastelum intended to kill
Rodgers as well as J.W. and celebrated his shooting afterward. Gastelum's contrary
testimony was rejected by the jury. Gastelum has not shown he is entitled to relief based
on ineffective assistance of counsel.
4 Gastelum argues that he had no motive to kill Rodgers, so the jury might have found he did not intend his killing. Motive is not a required element, but it is a factor the jury may consider. (People v. Stevenson (2018) 25 Cal.App.5th 974, 987-988; People v. Scheer (1998) 68 Cal.App.4th 1009, 1017.) Here, Gastelum's own statements show his motive: "He paid for a nigger's mistakes," i.e., Rodgers paid for J.W.'s mistakes. Rodgers was killed because he associated with J.W. 18
III
Senate Bill No. 136
As noted, our Supreme Court granted review and transferred this matter for
reconsideration in light of newly-enacted Senate Bill No. 136, which amended Penal
Code section 667.5, subdivision (b). Prior to this amendment, the statute provided for a
one-year enhancement for each prior separate prison term, unless the defendant remained
free from both prison custody and the commission of a new felony for a five-year period
after discharge. (Former Pen. Code, § 667.5, subd. (b); People v. Buycks (2018)
5 Cal.5th 857, 889 (Buycks).) After the amendment, "a one-year prior prison term
enhancement will only apply if a defendant served a prior prison term for a sexually
violent offense as defined in Welfare and Institutions Code section 6600,
subdivision (b)." (Lopez, supra, 42 Cal.App.5th at pp. 340-341; see Pen. Code, § 667.5,
subd. (b), as amended by Stats. 2019, ch. 590, § 1.) The amended statute became
effective January 1, 2020. (Lopez, at p. 341; see Cal. Const., art. IV, § 8, subd. (c);
Gov. Code, § 9600, subd. (a).)
Because the judgment against Gastelum is not yet final, the amended statute
supra, 42 Cal.App.5th at p. 341; People v. Petri (Feb. 10, 2020) __ Cal.App.5th __ [2020
WL 614895, at [7]]; People v. Winn (2020) 44 Cal.App.5th 859, 872.) And, because
Gastelum's prior prison term was for spousal abuse (§ 273.5, subd. (a)), not a sexually
violent offense, the one-year prior prison term enhancement can no longer be imposed on
him.
19
In general, when an error affects part of a sentence, we must remand for a full
resentencing on all counts and allegations. (Buycks, supra, 5 Cal.5th at p. 893.) But
where, as here, an enhancement is erroneously imposed and the trial court has already
imposed the maximum possible sentence, a remand for resentencing is unnecessary. (Id.
at p. 896, fn. 15.) We may simply strike the enhancement and affirm the judgment as
modified. (Lopez, supra, 42 Cal.App.5th at p. 342.) We do so here.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement
imposed under former section 667.5, subdivision (b). As so modified, the judgment is
affirmed. The trial court is directed to prepare an amended abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that the natural and probable consequences doctrine remains a valid basis for a first degree lying-in-wait murder conviction because such murder is defined by objective conduct rather than the perpetrator's subjective mental state. Additionally, the court struck a one-year prior prison term enhancement pursuant to Senate Bill No. 136.
Issues
Whether the natural and probable consequences doctrine supports a conviction for first degree lying-in-wait murder.
Whether the trial court erred by failing to specify the intended victim in the lying-in-wait special circumstance instruction.
Whether Senate Bill No. 136 requires the striking of a prior prison term enhancement.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“Because lying-in-wait murder requires proof of certain conduct, rather than a "uniquely subjective and personal" mental state, the reasoning of Chiu is inapplicable.”
“It is therefore consistent with longstanding principles of the natural and probable consequences doctrine to hold the aider and abettor liable for first degree lying-in-wait murder.”
“Because Gastelum's prior prison term was for spousal abuse (§ 273.5, subd. (a)), not a sexually violent offense, the one-year prior prison term enhancement can no longer be imposed on him.”