People v. Herrera CA2/2

Filed 10/7/20 P. v. Herrera CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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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.

Law Offices of James Koester and James Koester, under
appointment by the Court of Appeal, for Defendant and
Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Steven D.
Matthews and Gary A. Liberman, Deputy Attorneys General, for
Plaintiff and Respondent.
 Defendant and appellant Jesse Herrera (defendant)
appeals 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 contends that the use of a defective verdict form
for the attempted murder count requires reversal, and that he
received ineffective assistance of counsel due to defense counsel’s
failure to object to the verdict form and to request jury
instruction CALJIC No. 3.32. Defendant also contends that the
firearm enhancement alleged as to the shooting at an inhabited
building (count 3), should have been stricken; and that the
matter should be remanded for the trial court to consider a lesser
enhancement. Finally, defendant asks that several errors in the
abstracts of judgment be corrected.
We find that defendant both failed to preserve his
contentions regarding the verdict form, and that his claim fails
on the merits. Defendant also has failed to show either counsel
error or prejudice as required in order to prevail on a claim of
ineffective assistance of counsel. We find that the trial court
struck the firearm enhancement as to count 3, but the order was
incorrectly recorded in the abstract of judgment. We reject
defendant’s contention that the trial court’s discretion to strike a
firearm enhancement includes the authority to substitute a
lesser, uncharged firearm enhancement. We agree that the
abstracts of judgment include several errors, and will direct the
trial court to issue amended abstracts. We otherwise affirm the
judgment.

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 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.
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

1 All further statutory references are to the Penal Code,
unless otherwise indicated.

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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 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.
Prosecution evidence
Gang evidence4
Los Angeles 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,

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 makes
the life sentence as to count 1 as without parole. In addition, as
the jury found the gang allegation not true, the notation on the
abstract that defendant was sentenced pursuant to section
186.22, subdivision (b)(5) is also in error.

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.

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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 Florencia 13 gang. 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

5
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
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

5 Romero and Miguel lived in a small house behind a larger
house on property owned by Romero’s uncles.

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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, 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,
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

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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
(Bramasco), around 11:00 p.m. 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, 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 he 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
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 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

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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
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 day dreams 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

9
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
(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
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 ten 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,

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“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
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.

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 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
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.

6 Defendant testified that his mother and her boyfriend
witnessed the shooting. None of defendant’s relatives or friends
testified at trial.

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 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.
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

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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 p.m. 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.
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

14
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
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. Respondent counters that defendant has forfeited
the issue and that it fails on the merits, as defendant has not
shown prejudicial error. We agree with respondent.
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.”

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 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.) 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.)
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

16
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. . . .’ [Citations.]” (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
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 explain that the
prosecution was required to prove it beyond a reasonable doubt.7

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.

17
 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 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

18
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,
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;

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.

19
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.
3.32,9 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
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.”’ [Citation.]”
(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

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.)

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.)

20
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.
[Citation.]” (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 ].”

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

21
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
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 respondent
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

22
 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 --
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

23
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
evidence the prosecution was required to prove, as we explained
in section 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.

24
III. Firearm enhancement (count 3)
Defendant contends that the trial court should have
stricken as unauthorized, the firearm enhancement imposed as to
a violation of section 246, shooting at an inhabited dwelling
(count 3).
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 instruction
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 subdivision (d) allegation was modified accordingly 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.
Respondent agrees that the enhancement is not authorized,
but asserts that defendant is mistaken in his position that the
trial court did not strike it. Rather, the court did strike the
enhancement and defendant’s contention is thus moot.

25
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, but
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
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
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 subdivision (c) and the subdivision (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 two and three 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 four, the minutes

26
state: “The court strikes the PC 12022.53(c) enhancement as to
count 3. [¶] Total sentence imposed in count 3 is 7 years.”
We will thus order a modification of the abstract of
judgment to reflect that the enhancement was stricken, by
leaving section No. 2 blank as to count 3. We will also order the
trial court to correct the abstract’s indication that the sentence on
count 1 was life without parole, rather than the actual
pronouncement of life in prison plus 25 years to life for the
firearm enhancement.11
IV. Discretion to strike 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 the recently enacted section 12022.53,
subdivision (h) and section 1385, which gives the sentencing
court the discretion to strike or dismiss firearm enhancements.
The trial court denied the motion, and defendant now contends
that since the court was unclear that it understood it had
discretion not only to strike the entire enhancement as to count 1,
but to instead impose a lesser included firearm enhancement, the
matter should be remanded for the trial court to consider this
discretion.
The only firearm enhancement alleged in count 1 and 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). Defendant relies on People v. Morrison (2019) 34
Cal.App.5th 217, which held that section 12022.53, subdivision
(h) allows a trial court to exercise discretion to impose an

11 See footnote 3, ante.

27
uncharged lesser included enhancement in the interests of justice
pursuant to section 1385. (Morrison, at pp. 222-223.) This court
disagreed with Morrison in People v. Garcia (2020) 46
Cal.App.5th 786, 793-794 (Garcia), review granted June 10, 2020,
S261772.) Several other courts of appeal have rejected Morrison
as well. (See, e.g., People v. Valles (2020) 49 Cal.App.5th 156,
166-167, review granted July 22, 2020, S262757; People v. Yanez
(2020) 44 Cal.App.5th 452, review granted Apr. 22, 2020,
S260819; People v. Tirado (2019) 38 Cal.App.5th 637, review
granted Nov. 13, 2019, S257658.) In Garcia, we observed that
“Morrison drew upon the well-recognized power of courts to
impose a lesser included, but uncharged, enhancement ‘when a
greater enhancement found true by the trier of fact is either
legally inapplicable or unsupported by sufficient evidence.’
(Morrison, supra, 34 Cal.App.5th at p. 222.)” (Garcia at p. 793.)
We concluded that the line of authority on which Morrison relied
“does not provide any basis for extending the language of section
12022.53, subdivision (h) to allow a court to act when the greater
enhancement is not defective and thus to substitute a perfectly
valid greater enhancement for a lesser included enhancement.
That is because doing so would undercut -- rather than effectuate
-- the prosecutor’s charging decision and the jury’s verdict.”
(Garcia, at p. 793.) Based upon this reasoning, as we explain in
detail in Garcia, we decline defendant’s request for remand on
this ground.
DISPOSITION
The judgment is affirmed. The trial court is directed to
amend the abstract of judgment for the determinate term, to
show that the sentence imposed as to count 3, was a term of
seven years, and that the count 3 enhancement was stricken, by

28
leaving blank what is presently in the first box under section No.
2 of the determinate abstract. The trial court is further directed
to prepare an amended abstract of judgment for the
indeterminate term reflecting that defendant was sentenced on
count 1 to life in prison (box No. 5 of the abstract), plus 25 years
to life as stated in section No. 2. The box for section No. 8 of the
indeterminate abstract should be blank, and the reference to
Penal Code section 186.22 should be eliminated. The trial court
is directed to forward the amended abstracts of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ

We concur:

__________________________, P. J.
LUI

__________________________, J.
HOFFSTADT

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