People v. Herrera CA2/2 ( 2022 )

Filed 6/29/22 P. v. Herrera CA2/2
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B298686
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA140013)
v.
JESSE HERRERA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael A. Cowell, Judge. Affirmed with
directions.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Steven D.
Matthews, Julie Harris, Shezad H. Thakor and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Jesse Herrera (defendant)
appealed from the judgment entered after he was convicted of
attempted willful, deliberate, and premeditated murder;
attempted voluntary manslaughter; and shooting at an inhabited
building; with true findings on firearm and other special
allegations. He asserted that the use of a defective verdict form
for the attempted murder count required reversal and that he
received ineffective assistance of counsel due to his counsel’s
failure to both object to the verdict form and to request jury
instruction CALJIC No. 3.32. Defendant also asserted that the
firearm enhancement alleged as to count 3, shooting at an
inhabited building, should have been stricken, and he requested
remand to the trial court to consider a lesser enhancement.
Defendant’s final contention concerned several errors in the
abstracts of judgment.
In our original opinion filed October 7, 2020, we rejected
defendant’s contentions regarding the verdict form, as well as his
claim of ineffective assistance of counsel. We found that though
the trial court struck the firearm enhancement in count 3, the
order was incorrectly recorded in the abstract of judgment, and
we ordered amended abstracts. We rejected defendant’s
contention that the trial court’s discretion to strike a firearm
enhancement included the authority to substitute a lesser,
uncharged firearm enhancement, but we agreed that the errors
in the abstract of judgment should be corrected. We otherwise
affirmed the judgment.
The California Supreme Court granted review and on
April 27, 2022, returned the matter to this court with directions
2
to reconsider the cause in light of People v. Tirado (2022) 12
Cal.5th 688. We hereby vacate our prior decision and issue this
opinion in its place.
BACKGROUND
Defendant was charged in counts 1 and 2 of an amended
information with attempted murder in violation of Penal Code
sections 664 and 187, subdivision (a).1 It was also alleged that
the attempted murders were committed willfully, deliberately,
and with premeditation and that defendant personally and
intentionally discharged a handgun within the meaning of
section 12022.53, subdivision (c). Count 3 alleged that defendant
unlawfully fired a firearm at an inhabited dwelling in violation of
section 246, and in count 4 defendant was charged with second
degree robbery in violation of section 213, subdivision (b). It was
also alleged that defendant personally and intentionally
discharged a firearm causing great bodily injury to Jose Romero
(Romero), within the meaning of section 12022.53, subdivision
(d). As to counts 1, 3, and 4, it was separately alleged that
defendant personally caused great bodily injury to Romero,
within the meaning of section 12022.7, subdivision (a). Finally, it
was alleged pursuant to section 186.22, subdivision (b) that the
crimes were committed 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.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
3
A jury found defendant guilty of the attempted willful,
deliberate, and premeditated murder of Romero and found true
the firearm and great bodily injury allegations under sections
12022.53, subdivision (d) and 12022.7, subdivision (a). The jury
also found defendant guilty of the lesser offense of the attempted
voluntary manslaughter of Miguel Romero (Miguel)2 and found
true that he used a firearm within the meaning of section
12022.5, subdivision (a). In count 3 defendant was found guilty,
and the firearm allegation was found to be true. Defendant was
found not guilty of count 4, and the gang allegations were found
not true.
On May 22, 2019, the trial court sentenced defendant on
count 1 to life in prison plus 25 years to life for the firearm
enhancement.3 The court imposed and stayed the middle term of
three years and the firearm enhancement on count 2 pursuant to
section 654. Defendant was sentenced on count 3 to the high
term of seven years in prison and the firearm enhancement was
stricken.
Defendant filed a timely notice of appeal from the
judgment.
2 To avoid confusion, we will refer to Miguel Romero by his
first name only. We mean no disrespect.
3 The indeterminate abstract of judgment erroneously
recorded the life sentence in count 1 as life without parole. In
addition, since the jury found the gang allegation not true, the
entry on the abstract that defendant was sentenced pursuant to
section 186.22, subdivision (b)(5) was also an error. As we vacate
the judgment in this opinion, the court will have the opportunity
to prepare a new abstract.
4
Prosecution evidence
Gang evidence4
Los Angeles County Sheriff’s Department Detective
Guillermo Sanchez testified as the prosecution’s gang expert. He
was familiar with the Florencia 13 gang, also called Florencia
Treces, which he described as a violent criminal street gang
operating in a large area of Los Angeles County known as the
Florence/Firestone district. The borders of their claimed territory
include East 55th Street to the north and East 97th Street to the
south. The crimes commonly committed by members of the gang
are assaults and gang-related graffiti. Graffiti is placed
throughout the gang territory to show it is the gang’s territory.
When a gang member asks, “Where are you from?” it is meant as
a challenge or to intimidate persons within their territory.
Calling out one’s gang’s name or saying, “This is Florencia
Treces,” often precedes an assault.
Detective Sanchez testified to his opinion that defendant
was a member of the Florencia 13 gang. He based his opinion on
information he obtained by speaking to other investigators and to
informants who knew defendant, as well as photographs of
defendant displaying hand signs signifying his membership in
the gang. Detective Sanchez spoke to another sheriff’s
department gang detective, Armando Arevalo, about defendant.
Detective Arevalo testified that in 2009, he and his partner had
engaged defendant in conversation, including defendant’s
admission that he was a member of the Florencia 13 gang.
4 As the jury found the gang allegation not true, we
summarize only the gang testimony which is helpful to
understanding the other witnesses’ testimony.
5
Detective Arevalo noticed at trial that defendant looked older and
larger than he had in 2009.
Romero’s testimony
On April 26, 2015, sometime before 11:00 p.m., Romero
parked his car on 70th Street near his Compton Avenue home.
He got out of his car carrying his computer and other belongings,
and as he walked he was approached by a young man he did not
recognize. The unknown man said, “This is my territory. This is
Florencia 13. And who are you?” The man also asked whether
Romero belonged to any gang, or if he was Paisa, meaning a
Mexican who does not speak English. Romero, 40 years old at
the time, was not a gang member and told that to the man. As
Romero continued to walk, the man took his hat, asked for his
watch, and tried to grab Romero’s wallet from his pocket. The
man said he wanted the computer or the wallet and threatened to
“kick his ass.” When Romero refused and continued walking, the
man hit him from behind. Romero put his computer down and
resisted by pushing but not hitting him. Romero then ran, and as
he turned onto Compton Avenue, the man loudly yelled, “We’re
going to follow you where you live and we’re going to kill you.”
When Romero was on Compton Avenue, another man,
whom he later identified as defendant, emerged from an
apartment building with a third man. Defendant approached
Romero and joined the initial assailant in punching Romero with
closed fists, as the third man stood by. Romero testified that he
had lived in the house just two doors down for about 20 years
with no problem, and did not want to create any problems, so did
6
not fight back.5 As Romero reached the sidewalk outside his
home, he yelled for Miguel to come outside. Then defendant and
another man threw Romero to the ground, where they stepped on
his face and kicked him. Romero heard them saying “Florencia
13” and “fucking faggots.” Romero, who was frightened,
screamed. Miguel came outside, yelled at the men, and one of
them ran toward the apartment building defendant had come
from. Defendant continued to attack Romero until Miguel
grabbed his arm, told him to stop and to let Romero go.
Defendant tried to hit Miguel, but then stopped and left.
Miguel helped Romero into their yard and closed the gate.
Before Miguel could take Romero to the hospital, defendant and
the other man came back; it had been about a minute. They said,
“This is Florencia Treces, faggots. You’re going to die.” Romero,
who was then on his knees, stood and picked up an aluminum
tube from the ground to defend himself. As he held the tube at
his side, Romero saw that defendant had a gun. Realizing that
the tube would be useless, Romero dropped it. The first assailant
yelled, “Kill him. Kill that fucking faggot,” and told defendant to
shoot him. As he let go of the tube, defendant shot Romero in the
chin, breaking his jaw and knocking him to the ground. As
Romero began to crawl away, he saw defendant fire the gun in
the direction of where Miguel was hiding on the porch behind a
pillar. Romero then started running toward the back yard. He
heard four or five gunshots before he saw defendant run away.
Romero testified that in the year before the shooting, he
had seen defendant in the neighborhood maybe 15 to 20 times
5 Romero and Miguel lived in a small house behind a larger
house on property owned by Romero’s uncles.
7
and recognized him as a neighbor. Romero kept his distance
from defendant because Romero and his family were not gang
members, and they had no problems with defendant.
After the shooting Romero spent more than a week in the
hospital. His jaw was surgically repaired and then over time he
had more surgeries. A metal plate was inserted and in place for
about six months, requiring Romero to live on a liquid diet. Two
years later, he could eat only soft foods and had not recovered
sensation in parts of his jaw. Romero was out of work for almost
two years and continued to have nightmares, sleepwalking
episodes, and disturbing memories of the incident. Romero’s
family was afraid and moved far away.
Miguel’s testimony
Miguel was awakened by his girlfriend, Maria Bramasco,
around 11:00 that night, telling him that someone was beating up
his brother. He ran outside where he saw two men hitting and
kicking Romero, who was on the ground just outside the gate. As
they kicked him, the two men were saying “faggot” and “Florencia
Treces.” As Miguel ran outside, one of the men ran off. Miguel
identified the man who remained as defendant. Defendant
continued to kick Romero until Miguel grabbed defendant’s arm
and pulled him off his brother for about five seconds, which gave
Romero the chance to get up. Defendant then ran to the nearby
yellow apartment building where Miguel had previously seen him
on occasion.
Miguel brought his brother into their yard and saw that
Romero’s eyebrow was split, his nose was swollen, and was
bleeding from his nose and his mouth. Romero also had a lot of
marks on his chest. About one minute later, defendant returned
with the other man who had been hitting Romero. Defendant
8
seemed angry and shouted “faggots” and “Florencia Treces” and a
lot of “bad words.” Romero picked up a garden post or stake,
which he held down by his side for about five seconds. Romero
dropped it when defendant was about three or four feet away
from him. Defendant then shot Romero in the face about a
second after Romero dropped the stake. Miguel ran to a porch
pillar for cover as defendant said that he was Florencia Treces
and was going to kill him. Defendant then fired the gun four
times in Miguel’s direction. Defendant walked back and forth on
the sidewalk as he fired, causing Miguel to have to match
movements so as not to be in his line of fire. Bullets from
defendant’s gun struck the pillar and the walls of the house.
Defendant and the other man then ran back toward the
apartment building. Miguel’s girlfriend called 911.
Miguel was 43 years old at time of trial, was not a gang
member and had never had any prior conflict with the Florencia
13 gang or with defendant. Miguel’s girlfriend’s brother was a
Florencia 13 gang member. After the shooting, afraid of the
gang, Miguel and his family moved away, and Miguel had to
change to a job in the new area.
Defense Evidence
The defense called psychologist Kevin Booker, who testified
as an expert in posttraumatic stress disorder (PTSD). Dr. Booker
examined defendant, who reported that at the age of 17 he was
shot and significantly wounded while with another person who
was shot and killed. After defendant took some diagnostic tests,
Dr. Booker diagnosed defendant with chronic, fairly severe
PTSD. Dr. Booker also diagnosed defendant with a mood
disorder consistent with clinical depression, but not necessarily
9
rising to that level. Dr. Booker found that defendant suffers from
hypervigilance, which is a core characteristic of PTSD.
Dr. Booker explained that exposures to violence that cause
significant psychological trauma can affect a person’s ability to
perceive whether or not certain situations or environments are
actually dangerous or threatening. Such people sometimes
experience daydreams that are reflective of flashbacks of the
actual traumatic event, causing them to think they are actually
back in the traumatic event. They become hypervigilant and
avoid situations that will remind them of the traumatic event.
When faced with a situation perceived as threatening, such a
person may overreact impulsively with an excessive “automatic
response.” Some PTSD sufferers may experience a fight-or-flight
response, which can include freezing or fainting. Some
individuals with PTSD can experience a flight and fright
response simultaneously.
Defendant testified that in April 2015, he was 21 years old
and had lived in the yellow apartment building on Compton
Avenue with his two daughters and their mother, Maria Gaspar,
for about four or five months. He had never had any problems
with his neighbors and had not seen Romero or Miguel before the
night of the shooting although they lived two houses away.
That night defendant’s family had a barbeque. At trial
defendant claimed that it was to celebrate his younger sister’s
birthday (a date he could not recall), although he had told a
detective that it was a celebration for his brother who had just
been released from jail. Defendant’s brother, Jose Luis Herrera
(Jose Luis), who lived down the street, was there with his
girlfriend Jasmin and their children, as were Gaspar, defendant’s
10
two daughters, defendant’s mother and her boyfriend, and
defendant’s sister.
Jose Luis and Jasmin left around 10:30 or 11:00 p.m., and
five or 10 minutes later, as defendant was cleaning up, he heard
Jasmin scream out his name, saying, “Jesse, they are jumping
your brother.” Defendant, his mother, and her boyfriend ran to
the front, where defendant saw Romero and Jose Luis punching
each other while Miguel was saying, “Kick his ass for being
stupid.” Defendant approached and tried pulling Romero away
from Jose Luis, by bearhugging him. Defendant did not recognize
Romero and denied seeing a computer. Romero asked defendant,
“Do you want to pay for him also?” Then Romero began fighting
with defendant. As they fought, Romero said, “If you don’t pay
for it today you’re going to pay for it later, because I know where
you live,” which defendant took as a threat. During cross-
examination defendant denied that he punched or kicked Romero
and surmised that Romero probably suffered injuries from
fighting Jose Luis. Defendant testified that he punched Romero
when Romero started fighting him, and denied ever saying he did
not kick him in the head or that Romero had already suffered the
injuries. Defendant explained that they punched each other, and
that defendant probably did punch Romero in the face, but he
could not remember.
Defendant also testified that he heard Romero say to
Miguel, “Go call Beto and tell him to get that shit,” which
defendant interpreted as getting a gun. Defendant explained
that Beto lived in the building where Romero and Miguel lived.
Defendant had first seen Beto in the alley, two or three months
after defendant moved there. Beto, who had “Florence” tattooed
across his chest, asked him, “Where you from?” Defendant
11
responded that he was not from around there, but grew up there.
While they talked, Beto kept his hand in his pocket, and
defendant assumed he had a gun. Defendant denied being a gang
member and did not think that Romero was a gang member. He
did not see Beto or a gun the night of the shooting. Defendant
denied that he ever yelled out the words Florencia or faggots. He
explained that “faggots” and “flowers” were terms used to insult
Florencia 13 gang members and that no one would yell them in
that neighborhood. Defendant explained that he grew up with a
lot of Florencia 13 members and was a “claimer” but not an
actual member.
After Romero told Miguel to get Beto, Miguel ran down the
side walkway of his house. Defendant thought he was going to
get a gun, so defendant stopped fighting with Romero and went
to get a loaded gun he had hidden in a drain hole next to the
front door of his apartment. Defendant explained that he
retrieved the gun because his family was still outside, and he
thought that Romero would see the gun, get scared and run
away.6 When he ran back toward the Romero residence, he saw
Romero with a pole that looked like a big wooden stick, using it to
beat Jose Luis. Without pointing the gun, but just holding it
down at his side, defendant told Romero to “get the fuck out of
here.” Romero stopped hitting Jose Luis, began walking toward
defendant, holding the pole in a threatening manner, and said,
“What the fuck are you going to do with that?” Defendant then
fired the gun two times without aiming. Frightened, because he
had never fired a gun before, he instantly ran toward his
6 Defendant testified that his mother and her boyfriend
witnessed the shooting. None of defendant’s relatives or friends
testified at trial.
12
apartment building. Defendant did not think the bullets had hit
Romero. Defendant explained that he feared for his life just
before he fired, because he thought Romero was going to hit him,
which would make him drop the gun, and then Romero would get
it and shoot him.
Defendant ran to his apartment, threw the gun inside, and
then went two blocks to his mother-in-law’s home. The next
morning, he went to his sister’s nearby home where he stayed for
a few days. Defendant never returned to the apartment on
Compton Avenue, because he claimed he was afraid of
retribution.
Defendant did not own legally the .22-calibur revolver he
used that night. He felt he needed to protect himself and his
family, because he had been the victim of violence and lived in a
dangerous neighborhood. He explained that in 2011, when he
was 17, he and a friend had been shot, and his friend was killed.
The shooter was caught, and defendant was forced to testify in
court, even though he claimed that he had been unable see the
shooter and was afraid “they” would retaliate. Defendant
claimed that the shooting was not gang-related but concerned a
girl. Defendant has never received counseling or mental health
treatment and denied any personality change after he was shot,
although he was more aware of his surroundings, was wary of
cars approaching, and once fireworks frightened him.
After his September 2015 arrest, defendant agreed to speak
with a detective and denied having anything to do with the
shooting. He also told the detective that he did not even live in
that neighborhood as he lived with his sister. Defendant also
denied that he was a member of the Florencia 13 gang.
13
The parties stipulated that the incident report written by
Sheriff’s Deputies Johnson and Macias included a statement that
Miguel and Romero said they had been standing on the west curb
in front of their residence and were approached by the suspects.
The report included that Romero had a verbal dispute with one of
them, and when the other suspect approached, he placed the tip
of the barrel of a small handgun on Romero’s right cheek while
facing him and fired one shot.
Rebuttal evidence
Deputy Andrew Morrell testified that on April 16, 2011,
while on routine patrol duty with a partner late at night and
early the next morning, he encountered defendant with several
Florencia 13 gang members. His partner advised them to get off
the streets for their own safety. An hour or two later, the
deputies responded to a “shots fired” call about two or three
blocks from where they had spoken to defendant. They found two
gunshot victims, defendant and one of his companions, who later
died.
Bramasco testified that she and Miguel were asleep in her
home at 11:00 the night of the shooting. No one else lived there
with her, although her brother Alberto had lived with her before
the shooting and has lived with her since then. Alberto had been
known by his nickname “Beto” since childhood and had been a
member of the Florencia 13 gang in the past. Bramasco denied
being a member of the Florencia 13 gang and testified that
Romero and Miguel were not gang members. Alberto would hang
out in the back house sometimes, but did not hang out in the
alley. Alberto lived and worked in Las Vegas and was in Las
Vegas at the time of the shooting. On the night of the shooting,
Bramasco woke to the sound of someone calling Miguel’s name.
14
She looked out the window, saw two men beating and kicking
Romero, and woke up Miguel. She told Miguel that she saw two
men fighting with his brother, kicking and hitting him while he
was on the ground covering his face. When Miguel went outside,
she stayed in the house, so she was unable to identify either man.
She did not see Romero kick or punch anyone.
Detective Sanchez testified that gangs keep “hood guns”
that can be shared by several gang members in the same
neighborhood and are usually kept in a place that is accessible to
all of them. Gang members do this in order not to be caught with
a gun on them or in their homes. In this case, the location of
defendant’s gun was consistent with it being a hood gun. He
added that “Flower” is a disrespectful name for Florencia used by
rival gang members; “faggot” is disrespectful, but not especially
gang-related. When Detective Sanchez attempted to interview
defendant on the day of his arrest, he denied any knowledge of
the shooting, saying he did not live there and was not there on
the day of the shooting. Defendant claimed that he had no
friends who were Florencia 13 gang members. When Detective
Sanchez tried to get defendant to talk about what happened,
defendant repeated that he was not there: “I wasn’t there.
That’s it.” Defendant also claimed that he had never heard of the
shooting and that he did not even know anyone there.
DISCUSSION
I. Verdict Form
Defendant contends the jury’s finding that the count 1
attempted murder was willful, deliberate, and premeditated must
be reversed because the verdict form did not provide a separate
finding to be made only after the jury found defendant guilty of
15
attempted murder. Defendant complains that the verdict form
failed to afford the jurors an opportunity to convict him of
attempted murder without a finding of premeditation and
deliberation. The People counter that defendant has forfeited the
issue and that it fails on the merits, as defendant has not shown
prejudicial error. We agree with the People.
The guilty verdict form for count 1 read in relevant part:
“We, the Jury in the above-entitled matter, find the
defendant, Jesse Herrera, guilty of the crime of
attempted willful, deliberate, and premeditated
murder, of Jose Romero, in violation of Penal Code
Section 664/187(A), a felony, as charged in Count 1 of
the Amended Information.”
Not only did defendant fail to object to the verdict form,
defense counsel expressly approved of all verdict forms proposed
by the court and later expressly declined the trial court’s offer to
poll the jury. Defendant argues that there has been no forfeiture
of the issue because only Courts of Appeal have held that the
failure to challenge verdict forms in the trial court results in
forfeiture, yet defendant cites to a California Supreme Court case
for this assertion. (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6,
overruled on another ground in People v. Guiuan (1998) 18
Cal.4th 558, 568, fn. 3.) Our Supreme Court held in People v.
Toro that to preserve a challenge on appeal to a verdict form,
there must be objection to it. The court has so held in other cases
as well; there must be an objection either at the time the trial
court proposes the form or when the verdict is returned, or there
must be a request for clarification of the verdict when the jury is
polled. (People v. Johnson (2015) 61 Cal.4th 734, 784, citing
People v. Jones (2003) 29 Cal.4th 1229, 1259, and People v. Bolin
(1998) 18 Cal.4th 297, 330.)
16
Defendant also argues that the failure of the court “to
provide full and complete verdict forms to the jurors” affected his
substantial rights and asks that we exercise our discretion to
reach the issue, as he contends the California Supreme Court did
in People v. Osband (1996) 13 Cal.4th 622, 689-690. There, the
court did “not address . . . the question whether the court has any
duty to provide the jury with verdict forms”; and the court held
that any such failure in that case was harmless. (Ibid.) The
court explained that if it is error at all, it is not reversible error
for a trial court to fail to supply a specific verdict form where the
jury has been properly instructed; and “[w]hen ‘the jury has been
properly instructed as to the different degrees of the offense, it
must be presumed that if [the jurors’] conclusion called for a form
of verdict with which they were not furnished, they would either
ask for it or write one for themselves. It certainly could have no
necessary tendency to preclude them from finding such verdict.’”
(Ibid., quoting People v. Hill (1897) 116 Cal. 562, 570.)
Here, the jury was thoroughly instructed on the elements of
attempted murder and the evidence the jury must find to support
a conviction of attempted murder. The trial court then
instructed: “It is also alleged in counts 1 and 2 that the crime
attempted was willful, deliberate, and premeditated murder. If
you find the defendant guilty of attempted murder, you must
determine whether this allegation is true or not true.” (Italics
added.) The court then provided definitions of the terms willful,
deliberate, and premeditated, and the following instruction:
“If you find that the attempted murder was preceded
and accompanied by a clear, deliberate intent to kill,
which was the result of deliberation and
premeditation, so that it must have been formed
upon pre-existing reflection and not under a sudden
17
heat of passion or other condition precluding the idea
of deliberation, it is it is [sic] attempt to commit
willful, deliberate, and premeditated murder.”
(Italics added.)
The court went on to explain the sort of evidence that was
required to support a finding of premeditation and deliberation
and that the prosecution was required to prove it beyond a
reasonable doubt.7
The trial court then stated: “Include a special finding on
this question in your verdict, using a form that will be supplied
for that purpose.” The verdict forms provided for separate
findings on other special allegations, but not premeditation and
deliberation. If the jury had been confused, or their findings
called for a form of verdict with which they were not furnished,
they would have asked for the form or further instruction, as one
of the trial court’s final instructions was as follows: “During
deliberations, any question or request you may have should be
addressed to the court on a form that will be provided.” The jury
was indeed provided with such forms, as one was used to request
testimony readback.
The jury was provided with a not guilty verdict form in the
following language:
“We, the Jury in the above-entitled matter, find the
defendant, Jesse Herrera, not guilty of the crime of
attempted willful, deliberate, and premeditated
murder, of Jose Romero, in violation of Penal Code
7 The prosecutor also thoroughly went over the instructions
for attempted murder and the special allegation and made clear
that the jury was to determine premeditation and deliberation
only after finding defendant guilty of attempted murder.
18
Section 664/187(A), a felony, as charged in Count 1 of
the Amended Information.”
Defendant complains that the two forms created an all-or-
nothing choice that could have left the jury with the impression
that premeditation and deliberation were elements of simple
attempted murder. Defendant’s argument fails to show
prejudicial error. If the jury had found attempted murder but
had not found that the attempted murder was willful, deliberate,
and premeditated, the not guilty form would have called for an
acquittal. Thus, defendant could not have been disadvantaged by
the all-or-nothing nature of the not guilty form, which is precisely
why defendant’s challenge to the verdict forms may not be raised
for the first time on appeal: “If we were to allow the issue to be
raised for the first time on appeal, a party would have an
incentive not to complain about the verdict form in the trial court
in order to secure the advantage of seeking a complete reversal
on appeal. ([Citation] [‘the forfeiture rule ensures that the
opposing party is given an opportunity to address the objection,
and it prevents a party from engaging in gamesmanship by
choosing not to object, awaiting the outcome, and then claiming
error’].)” (People v. Johnson, supra, 61 Cal.4th at p. 784.)
Citing People v. Breverman (1998) 19 Cal.4th 142,
defendant attempts to equate his all-or-nothing contention with a
failure to instruct as to a lesser included offense. However, the
attempt fails, as there was no instructional error here, and jurors
are presumed to have understood and followed the trial court’s
instructions, unless there is evidence of confusion or the jury
requested further guidance on the issue. (People v. Gonzales
(2011) 51 Cal.4th 894, 940.) As the jury was properly instructed
and there was no request for a different form or for clarification,
19
it must be presumed that the verdict form was sufficient to
reflect their finding that defendant committed attempted murder,
which was premeditated and deliberated. (See People v. Osband,
supra, 13 Cal.4th at pp. 689-690.)8 Given the clear instructions
regarding attempted murder and the special allegation, it is
“unmistakenly clear” that the jury intended to convict defendant
of attempted murder and to find true the special allegation that
the attempted murder was willful, premeditated and deliberate;
thus, defendant’s “‘“substantial rights suffered no prejudice.”’”
(People v. Johnson, supra, 61 Cal.4th at p. 785, quoting People v.
Bolin, supra, 18 Cal.4th at p. 331.)
II. Effective assistance of counsel
Defendant contends that trial counsel provided ineffective
assistance by not requesting an instruction such as CALJIC
No. 3.329 and by failing to object to the defective verdict forms.
The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 686-694
(Strickland).) It is the defendant’s burden on appeal to
demonstrate that trial counsel was inadequate and that prejudice
resulted. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Prejudice
is shown by “a reasonable probability that, but for counsel’s
8 We decline defendant’s invitation to disregard People v.
Osband in favor of perceived dictum in Stone v. Superior Court
(1982) 31 Cal.3d 503 and People v. Aranda (2019) 6 Cal.5th 1077,
two cases regarding the procedure to be followed after the jury
returns a partial verdict.
9 The trial court must give this instruction on request where
it is supported by the evidence, but has no sua sponte duty to do
so. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
20
unprofessional errors, the result of the proceeding would have
been different.” (Strickland, at p. 694.)10 We presume that
counsel’s tactical decisions were reasonable, unless “‘“the record
on appeal affirmatively discloses that counsel had no rational
tactical purpose for [his or her] act or omission.”’” (Lucas, at
pp. 436-437.) “If the record on appeal sheds no light on why
counsel acted or failed to act in the manner challenged, an
appellate claim of ineffective assistance of counsel must be
rejected unless counsel was asked for an explanation and failed to
provide one, or there simply could be no satisfactory explanation.”
(People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Before any requested modifications, CALJIC No. 3.32
reads:
“You have received evidence regarding a [mental
disease] [mental defect] [or] [mental disorder] of the
defendant (insert name of defendant if more than
one) at the time of the commission of the crime
charged [namely, _____] [in Count[s] _____][.] [or a
lesser crime thereto, namely _____]. You should
consider this evidence solely for the purpose of
determining whether the defendant (insert name of
defendant if more than one) actually formed [the
required specific intent,] [premeditated, deliberated]
[or] [harbored malice aforethought] which is an
element of the crime charged [in Count[s] _____],
namely, _____[.] [or the lesser crime[s] of _____].”
10 As we concluded above, although the two verdict forms
regarding count 1 were technically inaccurate, defendant failed to
show prejudicial error. As defendant was not prejudiced by the
verdict forms, this basis for claiming ineffective assistance of
counsel fails. (Strickland, supra, 466 U.S. at p. 687; People v.
Holt (1997) 15 Cal.4th 619, 703.)
21
Defendant argues that the instruction was supported by
Dr. Booker’s testimony, combined with defendant’s testimony
that he retrieved the gun only to frighten Romero and that he
fired his gun “reflexively” when Romero threatened him with
what defendant thought was a big wooden stick. Dr. Booker
testified that defendant suffered from severe PTSD, including
hypervigilance, which can cause the sufferer to misinterpret
situations or environments as dangerous or threatening when
they are not and to overreact impulsively. However, defendant
did not testify that he fired reflexively, but rather, that he fired
because he thought that his life was in danger. Indeed,
defendant described his rather detailed thought processes prior
to deciding to fire his weapon. Defendant testified that he
thought Miguel was going to get a gun from Beto, and because
defendant’s family was still outside, he stopped fighting with
Romero, went to his apartment building, and retrieved a loaded
gun that he had hidden in a drain hole next to his front door.
Defendant claimed that he did not intend to shoot Romero or
Miguel and hoped to just scare Romero away, but when he ran
back to the Romero residence, he saw Romero beating Jose Luis
with a pole that looked like a big wooden stick to him. Defendant
claimed he did not point the gun until Romero stopped hitting
Jose Luis and began walking toward defendant, holding the pole
up in a threatening manner, saying, “What the fuck are you going
to do with that?” Defendant was afraid that Romero would hit
him, causing him to drop the gun and that Romero would then
pick it up and shoot him; so fearing for his life, he fired the gun
two times without aiming. If defendant’s description of Romero’s
actions was truthful, he may not have overestimated the danger.
Moreover, he may not have aimed, but his testimony does not
22
indicate that he fired reflexively, without thinking. It was after
he fired the gun two times that he then panicked, ran to his
apartment, and threw the gun inside.
Given defendant’s testimony, we agree with the People that
defense counsel could reasonably have considered the instruction
unnecessary in light of other instructions given, including
CALJIC No. 8.67, which the trial court read as follows:
“If you find that the attempted murder was preceded
and accompanied by a clear, deliberate intent to kill,
which was the result of deliberation and
premeditation, so that it must have been formed
upon pre-existing reflection and not under a sudden
heat of passion or other condition precluding the idea
of deliberation, it is it is [sic] attempt to commit
willful, deliberate, and premeditated murder.”
(Italics added.)
The trial court also instructed the jury with several
instructions on lawful self-defense and defense of others,
including the following:
“Actual danger is not necessary to justify self-
defense. If one is confronted by the appearance of
danger which arouses in his mind, as a reasonable
person, an actual belief and fear that he’s about to
suffer bodily injury, and if a person in a like
situation, seeing and knowing the same facts, would
be justified in believing himself in like danger, and if
that individual so confronted acts in self-defense
upon these appearances and from that fear and
actual beliefs, the person’s right of self-defense is the
same whether the danger is real or merely apparent.”
As CALJIC No. 3.32 is a limiting instruction, defense counsel
might not have wanted it to distract the jury from her argument
that defendant acted in lawful self-defense or defense of others—
23
that he reasonably perceived from Miguel’s and Romero’s actions
a life-threatening danger to himself and his family. Such an
argument comports with defendant’s testimony, and defense
counsel spent more time arguing lawful self-defense than any
PTSD induced imaginative thinking or impulsive overreaction.
In sum, defendant has not persuaded us that the record
affirmatively discloses that counsel had no rational tactical
purpose for omitting a request for CALJIC No. 3.32. Nor has
defendant met his burden to demonstrate the reasonable
probability of a different result absent the limitation of the PTSD
evidence to intent to kill, premeditation, and deliberation.
Defendant argues that there was a reasonable chance of a better
result if the jurors had been “specifically instructed through
CALJIC No. 3.32, that they could affirmatively consider the
PTSD evidence in relationship to the premeditation and
deliberation factor.” Defendant also argues that the instruction
would have highlighted the foundation of his defense theory, and
then he merely concludes that under the totality of the facts of
this case, he would have enjoyed a better result if the jurors had
been “specifically instructed on that element of the defense.”
CALJIC No. 3.32 does not tell the jury that it could
“affirmatively consider the PTSD evidence”; it tells the jury that
it may consider the evidence only in determining intent,
premeditation and deliberation. Nor does it explain the
relationship of the PTSD evidence to defendant’s defense of the
premeditation and deliberation allegation, as the instruction
merely limits any consideration of the evidence of a mental
disorder to intent, premeditation and deliberation. Nor did the
absence of the instruction leave the jury without a definition of
premeditation and deliberation or a misunderstanding of the
24
evidence the prosecution was required to prove, as we explained
in part I of our Discussion.
Defendant concludes that prejudice caused by the absence
of the instruction was exacerbated by the prejudicial effect of the
defective verdict forms. We reject defendant’s conclusion, as we
have determined that the verdict forms were not prejudicial.
In sum, defendant has failed to show that defense counsel
had no rational tactical purpose, that there could be no
satisfactory explanation for not requesting CALJIC No. 3.32, or
that the absence of the instruction caused him prejudice.
Defendant’s claim of ineffective assistance of counsel thus fails.
III. Firearm enhancement (count 3)
Defendant contends that the trial court should have
stricken as unauthorized, the firearm enhancement imposed in
count 3, a violation of section 246, shooting at an inhabited
dwelling. As discussed in parts IV, V, and VI below, we vacate
defendant’s sentence in its entirety and discuss this issue only to
clarify the record.
The jury found the allegation that the defendant personally
and intentionally discharged a firearm within the meaning of
section 12022.53, subdivision (c) to be true. Section 12022.53,
subdivision (c) creates an enhancement for the commission of a
felony specified in subdivision (a) of section 12022.53, but that
subdivision does not list section 246. It is subdivision (d) of
section 12022.53 that creates an enhancement to a conviction
under section 246 where the personal and intentional discharge
proximately causes great bodily injury or death. Although the
amended information in this case alleged the firearm
enhancement under section 12022.53, subdivisions (c) and (d) as
to counts 1 through 4, the prosecutor stated at the instruction
25
conference (albeit not very clearly) that subdivision (d) should be
alleged only as to counts 1 and 4, and that as to count 3, only
subdivision (c) should be alleged. The jury instruction regarding
the section 12022.53, subdivision (d) allegation was then modified
to refer only to counts 1 and 4. The verdict form for count 3
included a space for finding true or not true the allegation that
defendant personally and intentionally discharged a firearm
within the meaning of section 12022.53, subdivision (c), but the
form did not include a great bodily injury allegation.
The People agree that the enhancement is not authorized
but asserts that defendant is mistaken in his position that the
trial court did not strike it. The court did strike the enhancement
and defendant’s contention is thus moot. Defendant counters
that the record does not clearly indicate that the enhancement
was stricken, and if it was, it should not appear on the abstract of
judgment as “PS” for punishment struck; rather, it should not be
listed on the abstract at all.
While the court’s order striking the enhancement was
unclear, we conclude that it was the court’s intention to do so.
Initially, the trial court sentenced defendant on count 3 to the
high term of seven years plus the 20-year enhancement under
section 12022.53, subdivision (c) for a total of 27 years. After
pronouncing sentence on the other counts, the trial court stated:
“The court misspoke in the sentence of [defendant]. The 12022.53
C enhancement and the 12022.53 D enhancement cannot both be
imposed. So the total sentence is seven years on count 3 and in
the indeterminant sentence, it’s life, plus 25 to life. So it’s seven
years, plus life, plus 25 to life. But I can also say life the plus 25
to life on the 12022.53 D enhancement. They both involvement
[sic] the same thing, use of guns.” The reporter’s transcript
26
ended there, with a notation that there was then a discussion off
the record and that the proceedings concluded.
It appears that when the trial court said that it could not
impose both the section 12022.53, subdivision (c) and (d)
enhancements, it meant that it could not impose either of them,
as the clerk’s minutes of the sentencing hearing shows that the
subdivision (c) enhancement was stricken and makes no mention
of the subdivision (d) enhancement. On pages 2 and 3 of the
minutes it is stated that as to count 3 the court ordered
defendant to serve seven years in any state prison, that the court
selected the upper term of seven years as to count 3, and “[a]s to
the base term count 3: serve 7 years.” On page 4, the minutes
state: “The court strikes the PC 12022.53(c) enhancement as to
count 3. [¶] Total sentence imposed in count 3 is 7 years.”
In our prior opinion we ordered a modification of the
abstract of judgment to reflect that the enhancement was
stricken. We ordered the trial court to correct the abstract that
the sentence on count 1 was life in prison plus 25 years to life for
the firearm enhancement.11 We describe the modification of the
original abstract of judgment as it might be useful in avoiding
such errors upon resentencing. We do not purport to suggest to
the trial court how defendant should be resentenced.
IV. Discretion to strike or impose a lesser firearm
enhancement
Defendant requested the trial court to exercise its
discretion to strike the firearm enhancement found true as to
counts 1 (and 3) under section 12022.53, subdivision (h) and
section 1385, which gives the sentencing court the discretion to
11 See footnote 3, ante.
27
strike or dismiss firearm enhancements. The trial court denied
the motion, and defendant now contends that since it was unclear
that the trial court understood it had discretion not only to strike
the entire enhancement as to count 1, but also to impose a lesser
included firearm enhancement, the matter should be remanded
for the trial court to consider this discretion.
The only firearm enhancement in count 1 that was found
true by the jury was that defendant personally and intentionally
discharged a firearm, a handgun, which caused great bodily
injury to Romero within the meaning of section 12022.53,
subdivision (d). In our first opinion, we disagreed with People v.
Morrison (2019) 34 Cal.App.5th 217 (Morrison), which held that
section 12022.53, subdivision (h) allows a trial court to exercise
discretion to impose an uncharged lesser included enhancement
in the interests of justice pursuant to section 1385. (Morrison, at
pp. 222-223.) We declined defendant’s request for remand on this
ground. The California Supreme Court recently agreed with
Morrison in Tirado, supra, 12 Cal.5th 688, overruling the
appellate court that had disagreed with Morrison. In doing so,
the court resolved a split in the Courts of Appeal on the issue.
(Tirado, supra, at pp. 694-697.)
The People agree that the case must be remanded for
resentencing in light of Senate Bill No. 567 (2021-2022 Reg.
Sess.) (Senate Bill 567) and Senate Bill No. 81 (2021-2022 Reg.
Sess.) (Senate Bill 81), and that under the full resentencing rule,
the court may also revisit the firearm enhancement.12
12 The People do not agree that the matter should be
remanded for the trial court to consider discretion discussed in
Tirado, noting that Morrison was published on April 11, 2019,
and defendant was sentenced more than one month later, on
28
V. Senate Bill 567
Defendant also seeks remand for resentencing under
Senate Bill 567, which became effective on January 1, 2022, and
applies retroactively to nonfinal judgments. (People v. Garcia
(2022) 76 Cal.App.5th 887, 902.)13
May 22, 2019. The first published decision to disagree with
Morrison was the Court of Appeal decision underlying Tirado,
supra, 12 Cal.5th 688, prompting the prosecution to assert that
the trial court must therefore have been aware of its discretion to
impose an uncharged lesser included enhancement as an
alternative to an outright denial of defendant’s request to strike
the enhancement altogether, and we must presume that the court
appropriately chose not the exercise that discretion.
13 The legislation amended the determinate sentencing law,
which affects the trial court’s discretion and authority to impose
one of three statutory terms of imprisonment, known as the low,
middle, and upper terms.
Section 1170, subdivision (b)(1) now provides: “When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except as otherwise provided in paragraph[ ](2).”
Section 1170, subdivision (b)(2) provides in part: “The court may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.”
Section 1170, subdivision (b)(6)(A) and (B) provides in part:
“Notwithstanding paragraph (1), and unless the court finds that
the aggravating circumstances outweigh the mitigating
29
The statute now requires the trial court to “set forth on the
record the facts and reasons for choosing the sentence imposed[,
and the] court may not impose an upper term by using the fact of
any enhancement upon which sentence is imposed under any
provision of law.” (§ 1170, subd. (b)(5).)
It is not clear what aggravating circumstances were
considered or how they were weighed in the trial court. At the
sentencing hearing after arguments of counsel, the court
commented: “I must admit that the court was struck by the
disparity between the fact that the defendant has no prior record
and the level of violence that’s involved in this case.”14
The trial court explained its determinate sentencing
choices as follows:
“I think it’s entirely appropriate that the gang
allegation was found to be not true. [¶] Nonetheless,
he is a member of a gang. The gun was stored in this
drain pipe opening or whatever it was for
circumstances that imposition of the lower term would be
contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a
contributing factor in the commission of the offense: [¶] (A) The
person has experienced psychological, physical, or childhood
trauma . . . . [¶] (B) The person is a youth, or was a youth as
defined under subdivision (b) of Section 1016.7 at the time of the
commission of the offense.” A “youth” as defined in subdivision
(b) of section 1016.7 “includes any person under 26 years of age
on the date the offense was committed.”
14 The prosecutor had pointed out that defendant had shot an
unarmed person in the face, just before the trial court made this
statement. The People infer that the court apparently relied on
the circumstance in aggravation that the crime involved great
violence. (Cal. Rules of Court, rule 4.421(a)(1).)
30
accessibility outside of the house. He did leave and he
returned. Even if he had a fear that this Beto might
be present, when he returned, Beto was not present.
There was no longer any basis for fearing that there
might be armed retaliation by someone else who was
not present. At that point he shot one person in the
face and then there were additional shots thereafter
while they were fleeing. [¶] The court had initially
considered seriously [the defense] request of
exercising its discretion to strike the term of the
enhancement on the gun use allegation, but under
the total circumstances of the case, I feel that's
inappropriate. [¶] The court is going to select the
count 3 as the principal term and sentence the
defendant to [the high term of] seven years.”
We find remand is appropriate to give the trial court the
opportunity to resentence defendant in light of changes effected
by Senate Bill 567. (See People v. Buycks (2018) 5 Cal.5th 857,
893 [“on remand for resentencing ‘a full resentencing as to all
counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances’”].)
VI. Senate Bill 81
The People also agree with defendant that at resentencing
the trial court must apply Senate Bill 81, which amended section
1385, effective January 1, 2022. (Stats. 2021, ch. 721, § 1.) We
agree. The amended statute expressly applies to sentencings
occurring after its effective date. (§ 1385, subd. (c)(7).) Section
1385 now specifies “factors that the trial court must consider
when deciding whether to strike enhancements from a
defendant’s sentence in the interest of justice.” (People v. Sek
(2022) 74 Cal.App.5th 657, 674.)
31
VII. Section 1109
Defendant contends that the recently added section 1109
applies retroactively, requiring a reversal of his conviction of
attempted murder (count 1) and remand for retrial. Defendant
relies on People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), in
which the majority held that section 1109 was retroactive
because “the California Supreme Court has clarified the scope of
the Estrada rule, expressly holding that a new statute may apply
retroactively even if it concerns purely procedural changes that
do not directly reduce the punishment for a crime.” (Burgos,
supra, at p. 565.)15 The “Estrada rule” is “a limited rule of
retroactivity that applies to newly enacted criminal statutes
intended to reduce punishment for a class of offenders.” (People
v. Buycks, supra, 5 Cal.5th at p. 881, citing Estrada, supra, 63
Cal.2d at p. 745; see Estrada, at p. 883, fn. 8; People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara).) Otherwise, “No
part of [the Penal Code] is retroactive, unless expressly so
declared.” (§ 3.)
As Justice Elia pointed out in his dissent in Burgos, neither
Estrada, Lara, nor “any other [authority] has ever applied the
Estrada rule to a statute, like section 1109, that does not alter
the punishment for an offense, make a lesser punishment
possible, or change the elements of an offense or a defense.
Section 1109, unlike all of the amendatory statutes to which the
15 Defendant also claims that authority for this contention is
found in People v. Delgado (2022) 74 Cal.App.5th 1067, 1087,
which held: “Assembly Bill 333’s amendments to section
186.22 . . apply retroactively . . . .” (Italics added.) The opinion
does not discuss section 1109 other than to mention that it was
added by Assembly Bill No. 333 (2021-2022 Reg. Sess.).
32
Estrada rule has been applied, is a prophylactic rule of criminal
procedure expressly intended to employ new procedures aimed at
enhancing the fairness of future criminal proceedings.” (Burgos,
supra, 77 Cal.App.5th at p. 572 (dis. opn. of Elia, J.).)
Similarly, as stated in People v. Perez (2022) 78
Cal.App.5th 192: A new law that directly, indirectly or
potentially ameliorates punishment may be applied retroactively,
but section 1109 does not directly, indirectly or potentially
ameliorate punishment; instead it “is a procedural statute that
ensures a jury will not be prejudiced by the introduction of
evidence to support gang enhancement allegations . . . .” (Id. at
p. 207.)
As section 1109 does not expressly declare itself retroactive,
we agree with Perez and with the Burgos dissent that section
1109 is not retroactive. (People v. Perez, supra, 78 Cal.App.5th at
p. 207; Burgos, supra, 77 Cal.App.5th at p. 569 (dis. opn. of Elia,
J.).)
VIII. Assembly Bill No. 177
Defendant contends that when the trial court sentenced
him in 2019 and ordered him to pay a $500 restitution fine,
additional fees were imposed pursuant to section 1202.4, former
subdivision (l) and section 2085.5, former subdivision (e),
provisions which authorized collecting authorities to impose
administrative and collection fees of up to 10 percent of the fine.16
Defendant concludes, “Following the implementation of Assembly
Bill 177, the fees must be reconsidered.” Assembly Bill No. 177
16 Defendant cited only to that page of the record where the
restitution fine was imposed. We have found no imposition of
administrative fees in the sentencing transcript. Respondent
represents that no such fees were assessed by the trial court.
33
(2021-2022 Reg. Sess.) (Assembly Bill 177) eliminated those
provisions. The trial court may no longer impose administrative
fees related to collection of restitution fines. (Stats. 2021, ch. 257,
§§ 19-20, 36, (2021-2022 Reg. Sess.).)
As the People observe, Assembly Bill 177 also amended
section 1465.9, subdivision (b) to read: “On and after January 1,
2022 the balance of any court-imposed costs pursuant to Section
1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c,
1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or
2085.7, as those sections read on December 31, 2021, shall be
unenforceable and uncollectible and any portion of a judgment
imposing those costs shall be vacated.” (Stats. 2021, ch. 257,
§ 35.)
Thus, if any such fees were assessed against defendant,
they are unenforceable, and if defendant identifies any such fees,
he may have them vacated.
DISPOSITION
The judgment of conviction is affirmed. The sentence is
vacated, and the matter is remanded for a new sentencing
hearing, guided by the newly enacted laws discussed in this
opinion.
________________________
CHAVEZ, J.
We concur:
________________________ ________________________
LUI, P. J. HOFFSTADT, J.
34