Filed 7/22/26 P. v. Norris CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085100
Plaintiff and Respondent, (Super. Ct. No. SCD203169)
v.
SIRRON NORRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed and remanded with directions to correct
the abstract of judgment.
Carl Fabian, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene Sevidal, Assistant Attorney General, Donald W.
Ostertag and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Sirron Norris was convicted in 2009 of two counts of first degree
murder and four counts of attempted murder, among other offenses, arising
from two separate shootings. He now appeals from the trial court’s order
denying his petition for resentencing under Penal Code section 1172.6, as to
the attempted murder counts only, arguing the trial court erred by denying
his petition at the prima facie stage.1 He also contends he was improperly
sentenced to consecutive terms of life in prison without parole and his
abstract of judgment must be amended to correct clerical errors. We affirm
the trial court’s order but remand for correction of the abstract of judgment.
BACKGROUND
In 2009, a jury convicted Norris of two counts of first degree murder.
(§ 187, subd. (a).) The jury found true a special circumstance allegation that
Norris committed the first murder by means of discharging a firearm from a
motor vehicle (drive-by shooting special circumstance). (§ 190.2,
subd. (a)(21).) The jury also found true a single special circumstance
allegation that Norris was convicted of more than one murder in the same
proceeding (multiple-murder special circumstance), as supported by both
murder convictions. (§ 190.2, subd. (a)(3).) The jury further convicted Norris
of four counts of attempted murder (§§ 664/187, subd. (a)), one count of
discharging a firearm from a vehicle (§ 12034, subd. (d)), one count of
shooting at an inhabited residence (§ 246), and one count of conspiracy to
commit witness intimidation (§ 182, subd. (a)(1)). The trial court sentenced
Norris to a prison term of 18 years, four months to life plus 150 years to life
plus two consecutive terms of life without parole.
1 Further unspecified statutory references are to the Penal Code.
2
In 2011, we affirmed the judgment.2 (People v. Moss (Dec. 9, 2011,
D056500) [nonpub. opn.] (Moss).) The following summary of the trial
evidence relevant to this appeal is taken from that opinion.3
“Norris and Moss were members of a gang known as Skyline Eastside
Piru (Skyline) and belonged to a subset of that gang known as the Gangsta
Pimp Mafia or GPM. The Skyline/GPM gang’s major rivals included a gang
called Lincoln Park.
“[¶] . . . [¶]
“Around 9:00 p.m. on February 26, 2006, [Curtis] Howard[, an associate
of the Lincoln Park gang,] and [Danielle] Coleman met some friends
(Simone Cameron and Ashanti Ward) at a 7-Eleven store in southeast
San Diego. They decided to go to Howard’s home nearby and drove there in
their respective cars. Howard, wearing a green shirt [suggesting his
association with Lincoln Park], drove Coleman’s BMW car and Coleman sat
in the front passenger seat. Cameron and Ward followed them in their car.
“As the two cars drove on Imperial Avenue, a dark Ford . . . [driven by
Norris] pulled between their cars, and followed Howard’s car as it drove on
60th Avenue and turned onto Radio Drive. When Howard stopped the BMW
at a stop sign, the Taurus pulled alongside the BMW and [Moss] fired
multiple gunshots into the BMW. Both Howard and Coleman were hit.
Howard later died from his wounds, and Coleman suffered significant
injuries.
2 We considered Norris’s appeal with that of his codefendant,
Dominique K. Moss.
3 Norris filed an unopposed request for judicial notice of the record on
appeal in case number D056500. The motion is granted.
3
“[¶] . . . [¶]
“[Darnel King, Bobby Towers, Rashard Hall and Michael Murphy] lived
on a street (San Onofre Terrace) within territory claimed by the Lincoln Park
gang. They were not members of the Lincoln Park gang, but two of them
were friends of Lincoln Park members.
“On March 26, [2006,] the victims were relaxing in a carport at Hall’s
house after dark. The group saw [Norris and Moss], wearing hooded
sweatshirts and bandanas, walk out of the canyon. [Norris and Moss]
stopped on either side of a nearby car, and Towers asked, “Who is that?”
[Norris and Moss] then fired on the group. King was killed and Towers was
wounded.” (Footnote omitted.)
DISCUSSION
I.
No Error in Denial of the Section 1172.6 Petition
A. Proceedings on Petition for Resentencing
In May 2024, Norris filed a petition for resentencing under
section 1172.6, checking the boxes on the standardized form indicating (1) he
had been prosecuted “under a theory of felony murder, murder under 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, or attempted murder under the natural and probable consequences
doctrine,” (2) he “was convicted of murder, attempted murder, or
manslaughter following a trial,” and (3) he “could not presently be convicted
of murder or attempted murder because of changes made to Penal Code
[sections] 188 and 189.” The trial court appointed counsel to represent Norris
and obtained briefing from the parties.
4
In September 2024, the trial court held a hearing to determine whether
Norris had made a prima facie showing of entitlement to relief. Norris’s
counsel argued he was entitled to an evidentiary hearing on his petition
because he “can be eligible for relief under any circumstances in which it is
possible that a jury could impute malice” and a hearing would allow the
parties to review the record to determine if any changes in the law regarding
accomplice liability or imputed malice were applicable to him. The People
argued Norris is not entitled to resentencing under section 1172.6 because he
was not convicted of murder or attempted murder under any now-invalid
theory of liability contemplated by the statute.
5
The court explained that the evidence presented at trial showed Norris
was guilty of murder and attempted murder as a direct aider and abettor who
acted with the intent to kill. The court then highlighted that the jury was
instructed on direct aiding and abetting theories as to both the murder and
attempted murder charges and was not instructed on felony murder or a
natural and probable consequences theory of liability. Based on the evidence
and the instructions, the court concluded “[t]he only choice for the jury was to
return guilty verdicts on the murder and attempted murders as a direct
aid[er] and abettor.” The court found that, because Norris’s murder and
attempted murder convictions were not premised on a now-invalid theory, he
is ineligible for resentencing under section 1172.6 as a matter of law.
Accordingly, the court denied the petition upon a finding Norris had not made
a prima facie showing of entitlement to relief.
Here, Norris challenges the trial court’s denial of resentencing as to his
attempted murder convictions only. We focus our analysis on those
convictions.
B. Applicable Law and Standard of Review
“Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill No. 1437) significantly limited the scope of [California’s] felony-
murder rule and eliminated liability for murder under the natural and
probable consequences doctrine . . . .” (People v. Guiffreda (2023)
87 Cal.App.5th 112, 122; Stats. 2018, ch. 1015, § 1, subd. (f).) It “also
established a new procedure[, codified in section 1172.6,] to allow defendants
who could not have been convicted under the new law to petition the
sentencing court to vacate their murder conviction and resentence them on
any remaining counts.” (Guiffreda, at p. 122.) Effective 2022, the
Legislature amended section 1172.6 to encompass defendants convicted of
6
attempted murder, but only if they were convicted “under the natural and
probable consequences doctrine.” (§ 1172.6, subd. (a); see People v. Delgadillo
(2022) 14 Cal.5th 216, 223, fn. 3.)
If a section 1172.6 petition contains all the required information, the
court must appoint counsel to represent the petitioner if requested. (People v.
Lewis (2021) 11 Cal.5th 952, 962–963 (Lewis).) The People must file a
response to the petition, the petitioner may file a reply, and the court must
hold a hearing to determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (§ 1172.6, subd. (c).)
In deciding whether a petitioner has made a prima facie showing under
section 1172.6, “the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.” (Lewis, supra, 11 Cal.5th at p. 971
[cleaned up].) The court may consider the record of conviction, which will
“necessarily inform the trial court’s prima facie inquiry under section
[1172.6].” (Ibid.) The record of conviction may include such things as the
trial evidence, the jury instructions, and closing arguments from counsel.
(People v. Gallardo (2024) 105 Cal.App.5th 296, 301; People v. Lopez (2022)
78 Cal.App.5th 1, 13 (Lopez).) However, “[i]n reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of discretion.’ ”
(Lewis, at p. 972.)
A defendant seeking resentencing under section 1172.6 for an
attempted murder conviction is only entitled to relief if his conviction could
have been based on the natural and probable consequences doctrine.
(§ 1172.6, subd. (a); People v. Rodriguez (2024) 103 Cal.App.5th 451, 457
7
(Rodriguez); People v. Lovejoy (2024) 101 Cal.App.5th 860, 865 (Lovejoy);
People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).) “If the petition and
record in the case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition.” (People v. Arellano (2024)
16 Cal.5th 457, 469.) “For example, if the record shows that the jury was not
instructed on either the natural and probable consequences or felony-murder
doctrines, then the petitioner is ineligible for relief as a matter of law.”
(People v. Harden (2022) 81 Cal.App.5th 45, 52.)
“A court’s decision to deny a resentencing petition at the prima facie
stage is a purely legal conclusion, which we review de novo.” (Lovejoy, supra,
101 Cal.App.5th at p. 865 [cleaned up]; People v. Nino (2025) 111 Cal.App.5th
844, 853.)
C. The Trial Court Did Not Err by Finding Norris Ineligible for
Resentencing Under Section 1172.6
The People prosecuted Norris for attempted murder under a “kill zone”
theory of liability. Accordingly, the trial court instructed the jury on the
principles of attempted murder under this theory, including the requisite
specific intent to kill, and did not instruct the jury on a natural and probable
consequences theory.4 Because this record of conviction shows Norris could
4 The court instructed the jury on attempted murder and the kill zone
theory of liability, in relevant part, as follows:
“The defendant is charged in Counts Two, Six, Seven, and
Eight with attempted murder.
“To prove that the defendant is guilty of attempted murder,
the People must prove that:
1. “The defendant took at least one direct but ineffective
step toward killing another person;
“AND
2. “The defendant intended to kill that person.
8
not have been convicted of attempted murder under a natural and probable
consequences theory, he is facially ineligible for resentencing on his
attempted murder convictions under section 1172.6. (§ 1172.6, subd. (a);
Rodriguez, supra, 103 Cal.App.5th at p. 457; Lovejoy, supra, 101 Cal.App.5th
at p. 865; Coley, supra, 77 Cal.App.5th at p. 548.)
Norris does not appear to contest that the People did not prosecute him
under, and the trial court did not instruct the jury on, the natural and
probable consequences doctrine. Rather, he argues we should interpret
section 1172.6 to apply to the facts of his case for two reasons: (1) the kill
zone theory under which he was prosecuted for attempted murder allowed
“[¶] . . . [¶]
“A person may intend to kill a specific victim or victims and
at the same time intend to kill anyone in a particular zone of
harm or ‘kill zone.’ ”
“In order to convict the defendant of the attempted murder
of Danielle Coleman, the People must prove that the defendant
not only intended to kill Curtis Howard, but also either intended
to kill Danielle Coleman, or intended to kill anyone within the
kill zone. If you have a reasonable doubt whether the defendant
intended to kill Danielle Coleman or intended to kill
Curtis Howard by killing everyone in the kill zone, then you must
find the defendant not guilty of the attempted murder of
Danielle Coleman.
“In order to convict the defendant of the attempted murders
of Bobby Towers, Michael Murphy, and Rashad Hall, the People
must prove that the defendant not only intended to kill
Darnell King, but also either intended to kill Bobby Towers,
Michael Murphy, and Rashad Hall, or intended to kill anyone
within the kill zone. If you have a reasonable doubt whether the
defendant intended to kill Bobby Towers, Michael Murphy, and
Rashad Hall, or intended to kill Darnell King by killing everyone
in the kill zone, then you must find the defendant not guilty of
the attempted murders of Bobby Towers, MichaeI Murphy, and
Rashad Hall.”
9
the jury to convict him based on imputed malice, and (2) we should interpret
section 1172.6 to apply to attempted murder convictions based on any theory
of imputed malice, including the kill zone theory at issue here.5 We reject
the first contention and, thus, need not reach the second.
Both before and after Norris’s trial, courts reinforced the principle that
to be convicted of attempted murder a defendant must have harbored the
specific intent to kill the victim. (People v. Bland (2002) 28 Cal.4th 313, 327
(Bland); People v. Smith (2005) 37 Cal.4th 733, 739; People v. Canizales
(2019) 7 Cal.5th 591, 602 (Canizales).) This is so even under a kill zone
theory of liability. A defendant may be guilty of attempted murder under a
kill zone theory where he or she “create[d] a zone of fatal harm” with the
“inten[t] to kill everyone present to ensure the primary target’s death.”
(Canizales, at p. 607; Bland, at p. 329.) Under this theory, intent is not
imputed from an actual killer to a nonkiller, or from one victim to another.
(See Bland, at pp. 327–328 [under kill zone theory defendant’s intent to kill is
not implied or transferred from the primary victim to an unintended victim];
Canizales, at p. 607 [the kill zone is a “theory for establishing the specific
intent to kill required for conviction of attempted murder”].) Rather, the
defendant must act with the concurrent intent to kill both the primary target
and everyone within the kill zone. (Bland, at pp. 329–330; Canizales, at
pp. 602–607.)
Despite this authority, Norris argues the kill zone instruction that the
trial court issued to his jury allowed it to convict him of attempted murder
5 Norris’s claim does not encompass any argument regarding his
prosecution for attempted murder as an aider and abettor. Rather, he
focuses only on the kill zone theory of liability, regardless of whether he was
convicted as a direct perpetrator or an aider and abettor.
10
based on imputed malice because it allowed for liability based on an “intent
to kill ‘anyone’ within the kill zone,” rather than “everyone” in the kill zone.
Specifically, he points to the trial court’s instruction under former CALCRIM
No. 600 that to convict him of attempted murder under a kill zone theory it
had to find he intended to kill the deceased victim and intended to kill either
the surviving victim or “anyone within the kill zone.” (Italics added.) But the
trial court further instructed the jury that “[i]f [it] ha[d] a reasonable doubt
whether [Norris] intended to kill [the surviving victim(s)] or intended to kill
[the deceased victim(s)] by killing everyone in the kill zone, then [it] must find
[Norris] not guilty of” attempted murder. (Italics added.) When read in its
entirety, this instruction did not permit the jury to convict Norris for
attempted murder without a finding of the requisite specific intent to kill
both the deceased and surviving victims. (People v. Campos (2007)
156 Cal.App.4th 1228, 1241, 1243 (Campos) [reviewing analogous portion of
kill zone instruction and finding, despite ambiguity, instruction was not
inconsistent with Bland’s holding that kill zone theory requires an intent to
kill “everyone” in the kill zone6].) This is particularly true in the context of
6 Although not addressed in Campos, the version of CALCRIM No. 600 at
issue in that case is infirm under more recent case law for a different reason,
i.e., it allowed for conviction of attempted murder under a kill zone theory
where the defendant intended to “harm” everyone in the kill zone. (Campos,
supra, 156 Cal.App.4th at p. 1241 [kill zone instruction stated, “If you have a
reasonable doubt whether the defendant intended to kill [targeted victim] or
intended to kill [nontargeted victims] by harming everyone in the kill zone,
then you must find the defendant not guilty of attempted murder” (italics
added)]; see In re Lisea (2022) 73 Cal.App.5th 1041, 1055 [this language
“runs the risk of the jury finding defendant guilty of attempted murder not
based on an intent to kill . . . , but by finding he intended to harm everyone in
the kill zone”].) The version of the instruction the trial court issued here did
not suffer from the same defect.
11
the jury instructions as a whole, which unambiguously directed the jury that
to convict Norris of attempted murder it had to find he harbored the specific
intent to kill everyone in the kill zone. (Cf. People v. Stone (2009) 46 Cal.4th
131, 138, fn. 3 (Stone) [suggesting jury would probably resolve any theoretical
ambiguity caused by using the word “anyone,” instead of “everyone,” in the
kill zone instruction in the context of the trial].)
In support of his argument, Norris cites People v. Mumin (2023)
15 Cal.5th 176, 193 and Canizales, supra, 7 Cal.5th at p. 607, which
confirmed the kill zone theory requires a finding that the defendant intended
to kill both a primary target and everyone within the kill zone. He also
argues that, “[a]t the time of [his] trial and direct appeal, courts widely
interpreted language in [Stone] as authority for the proposition that a
primary target was not required for the prosecution under the kill zone
theory.” This authority confirms the holdings in Bland and subsequent cases
that a defendant can be liable for attempted murder under a kill zone theory
only if he intends to kill everyone in the kill zone. But it does not further
Norris’s contention that the version of CALCRIM No. 600 issued here, which
used the term “anyone,” allowed for a conviction of attempted murder based
on imputed malice.
Norris also highlights post-Canizales revisions to CALCRIM No. 600
that require consideration of evidentiary factors in determining whether
“ ‘the defendant intended to create a “kill zone” and the scope of such a
zone.’ ” (Canizales, supra, 7 Cal.5th at p. 607 [identifying factors to consider
“[i]n determining the defendant’s intent to create a zone of fatal harm and
the scope of any such zone”]; CALCRIM No. 600, 2023 rev.) But, again, he
does not explain how these changes support his assertion that the
12
instructions issued to his jury allowed a conviction for attempted murder
based on a theory of imputed malice.
Last, Norris would have us interpret section 1172.6 to apply to
defendants convicted of attempted murder under any imputed malice theory,
not merely the natural and probable consequence theory identified in the
statute. He argues that such an interpretation would comport with the
legislative intent behind the provision. We do not need to reach this issue,
however. Because, as we have explained, Norris’s conviction for attempted
murder based on a kill zone theory could not have been based on imputed
malice, he would not be eligible for relief even if we extended the reach of
section 1172.6 as he suggests.
D. Any Improper Factfinding by the Trial Court Was Harmless
Norris also contends that the trial court’s order is erroneous because
the court engaged in improper factfinding at the prima facie stage of review.
An order denying a section 1172.6 petition at the prima facie stage is
reviewed for harmless error under the standard of People v. Watson (1956)
46 Cal.2d 818. (People v. Glass (2025) 110 Cal.App.5th 922, 929 [applying
harmless error review to claim that trial court improperly considered
substantive facts in appellate court opinion at prima facie stage]; see Lewis,
supra, 11 Cal.5th at pp. 973–975 [remanding to Court of Appeal to determine
whether trial court error in summarily dismissing resentencing petition
without appointing counsel and after reviewing appellate court’s opinion
affirming conviction was harmless under Watson].) Under this standard, “a
petitioner whose petition is denied before an order to show cause issues has
the burden of showing it is reasonably probable that if [the trial court had not
erred] his or her petition would not have been summarily denied without an
evidentiary hearing.” (Id. at p. 974 [cleaned up].)
13
At the hearing to determine whether Norris made a prima facie
showing of entitlement to resentencing, the trial court stated the evidence at
trial established Norris was guilty of murder and attempted murder as a
direct aider and abettor who acted with the intent to kill. The court may
have properly based this conclusion on the record of conviction. (See Lopez,
supra, 78 Cal.App.5th at p. 13 [the record of conviction may include the trial
evidence].) But, even if the court made this finding based on improper
factfinding or weighing of the evidence, any error was harmless.
In addition to discussing the trial evidence, the court explained “there
was no instruction on felony murder or a natural or probable consequence
theory” and “[t]he instruction(s) clarified the required intent to kill.” The
court then denied Norris’s resentencing petition because he is ineligible for
resentencing under section 1172.6 as a matter of law and, thus, the petition
failed to make a prima facie showing of entitlement to relief. As we have
explained, the trial court’s conclusion that Norris is statutorily ineligible for
resentencing under section 1172.6 is supported by the record of conviction.
Accordingly, Norris cannot show it is reasonably probable that, absent
consideration of the trial evidence, the court would not have denied Norris’s
petition at the prima facie stage.
II.
Resentencing is Not Required with Respect to Norris’s Consecutive Terms of
Life Without Parole
As we have stated, the jury convicted Norris of two counts of first
degree murder and found true two special circumstance allegations. (§ 187,
subd. (a)). For these convictions and allegations, the trial court sentenced
Norris to two consecutive terms of life without the possibility of parole.
Norris contends the court erred in imposing consecutive terms of life without
14
the possibility of parole because, “[r]egardless of how many special
circumstances [are] found true, only one term of [life without parole] may be
imposed.”
We lack jurisdiction to consider the challenge to the judgment in this
appeal from the denial of Norris’s section 1172.6 petition at the prima facie
stage. (See People v. Hernandez (2024) 103 Cal.App.5th 1111, 1114, 1117–
1119, 1123 [appellate court lacked jurisdiction to correct unauthorized
judgment on appeal from denial of section 1172.6 petition at prima facie stage
because appellate jurisdiction does not lie “to correct an unauthorized
judgment that has long been final and when there is no correlation between
the alleged error in a final judgment and the appeal of an unrelated trial
court order”]; but see People v. Sanchez (2026) 119 Cal.App.5th 1060, 1066,
fn. 3 [recognizing “split of authority as to whether the [trial] court may
correct an illegal sentence after the case is final, even in the absence of a
specific statutory authority”].) But, even if we had jurisdiction to review this
claim, we are unpersuaded.
In support of his argument, Norris cites only People v. Montes (2014)
58 Cal.4th 809, 874 for the proposition that “a defendant ‘face[s] no additional
punishment merely as a result’ of multiple special circumstance findings.”
He takes Montes out of context. Montes did not hold that multiple sentences
for multiple special circumstance murder convictions is prohibited, as Norris
suggests. Rather, the court in Montes held that a special circumstance
allegation need not be “reversed for being necessarily included within another
special circumstance.” (Id. at pp. 874–875.) In so holding, the court
explained, the consequences of a true finding on any one of multiple special
circumstance allegations is that the defendant becomes eligible for an
increased penalty for the underlying crime of conviction. But the defendant
15
“face[s] no additional punishment merely as a result of the finding on [an
additional] special circumstance allegation.” (Id. at p. 874.)
Contrary to Norris’s argument, his sentence for two consecutive life
without parole sentences for two separate special circumstance murders is
not prohibited. (See Cal. Rules of Court, rule 4.425(a) [factors relevant to
decision to impose consecutive sentence are: (1) “The crimes and their
objectives were predominantly independent of each other”; (2) “The crimes
involved separate acts of violence or threats of violence”; or (3) “The crimes
were committed at different times or separate places”]; cf. People v. Sandoval
(1992) 4 Cal.4th 155, 168, 197 [where jury returned one death verdict and
three verdicts imposing sentences of life without parole for four special
circumstance murder convictions, finding court did not err in requiring jury
to return separate verdicts as to each murder victim and explaining “[a]
defendant who kills more than one person may be convicted and punished for
each murder”].)
III.
The Abstract of Judgment Must Be Amended
Finally, Norris argues the abstract of judgment must be amended to
strike a special circumstance finding and to correct clerical errors. We are
not persuaded that a superfluous special circumstance allegation must be
stricken but agree as to the clerical errors.
A. The Abstract of Judgment Does Not Reflect a Superfluous Special
Circumstance Finding
Norris argues that the record shows he was held liable for two
multiple-murder special circumstances findings, one each for counts 1 and 5.
Because only one multiple-murder special circumstance is permitted, he
contends, one finding must be stricken and the sentencing minutes and
16
abstract of judgment must be amended to reflect only a single multiple-
murder special circumstance.
Norris is correct that only one multiple-murder special circumstance is
permitted, and a superfluous special circumstance finding should be stricken.
(People v. Halvorsen (2007) 42 Cal.4th 379, 422 [“Defendant correctly notes
that two multiple-murder special-circumstance allegations were erroneously
charged and found true in this case. In numerous cases involving the same
kind of error, we have stricken the superfluous finding and concluded the
defendant suffered no prejudice.” (Citations omitted.)].) But he is mistaken
that he has been held liable for two such special circumstances here.
The People charged, and the jury found Norris liable for, only two
special circumstances. First, the jury found true the drive-by shooting special
circumstance with respect to the murder charged in count 1. (§ 190.2,
subd. (a)(21).) Second, the jury found true a single multiple-murder special
circumstance, which related to the murders charged in both counts 1 and 5.7
(§ 190.2, subd. (a)(3)). Because there was no superfluous multiple-murder
special circumstance, there is nothing to strike.
7 The verdict form for the multiple-murder special circumstance
originally indicated it related to counts 1 and 4. Following the verdicts, the
parties and the trial court recognized the error and acknowledged the special
circumstance related to counts 1 and 5. At some point, the verdict form was
modified in handwriting to reflect that it related to counts 1 and 5. In
addition, with respect to counts 1 and 5, the abstract of judgment shows
Norris was convicted pursuant to sections “[section]187[, subdivision
(a)/[section] 190.2[, subd.] (a)(21)/,” thereby creating ambiguity as to which
special circumstance applied to which count. As we explain more fully below,
on appeal from the original judgment, we ordered the abstract amended to
clarify that the multiple-murder, not the drive-by shooting, special
circumstance applied to count 5. (Moss, supra, D056500.)
17
B. An Amended Abstract of Judgment Must Be Issued in Compliance with
Our Decision on Appeal
The abstract of judgment indicates the drive-by shooting special
circumstance applies to both the murder convictions in counts 1 and 5 and
does not reflect the multiple-murder special circumstance at all. In our
decision on Norris’s direct appeal from the original judgment, we remanded
the action to the trial court with directions to amend the abstract of judgment
“to reflect that the special circumstance appended to count 5 was a finding
under section 190.2, subdivision (a)(3), and that count 11 was a nonviolent
felony.” (Moss, supra, D056500.) On remand, the trial court issued a minute
order stating the sentence was amended nunc pro tunc in compliance with
our directions and the abstract of judgment “is also corrected by virtue of this
minute order.” But the court did not issue an amended abstract.
Norris contends, and the Attorney General does not contest, that the
trial court’s minute order after remand is insufficient to comply with our
directions to amend the abstract. We agree. (§ 1213, subd. (b) [“If a copy of
the minute order is used as the commitment document, the first page or
pages shall be identical in form and content to that prescribed by the Judicial
Council for an abstract of judgment.”].) Thus, remand again is warranted for
the trial court to issue an amended abstract of judgment “to reflect that the
special circumstance appended to count 5 was a finding under section 190.2,
subdivision (a)(3), and that count 11 was a nonviolent felony.” (Moss, supra,
D056500.)
18
DISPOSITION
The order is affirmed. The trial court is directed to amend the abstract
of judgment to reflect that the special circumstance appended to count 5 was
a finding under section 190.2, subdivision (a)(3), and that count 11 was a
nonviolent felony. The court shall transmit a copy of the amended abstract of
judgment to California’s Department of Corrections and Rehabilitation.
DO, Acting P. J.
WE CONCUR:
RUBIN, J.
BERMÚDEZ, J.
19