People v. Villanueva CA2/1

Filed 8/3/21 P. v. Villanueva CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B305458

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA092568)
v.

AARON VILLANUEVA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathryn A. Solorzano, Judge. Affirmed as
modified.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
 A jury convicted defendant Aaron Villanueva of one count
of first degree murder and found true allegations that the crime
was gang-related and that Villanueva personally discharged a
firearm causing death. The trial court sentenced him to a total
term of 50 years to life in state prison.
On appeal, Villanueva contends that: (1) the trial court
erred in admitting statements Villanueva made to an undercover
agent while in jail; (2) the trial court violated his due process
rights when it instructed the jury, pursuant to CALCRIM
No. 315, to consider an eyewitness’s level of certainty; (3) trial
errors accumulated in such a manner as to deprive him of his
right to a fair trial; (4) the matter must be remanded to the trial
court because it was unaware of its discretion to replace the
firearm enhancement found true by the jury with a lesser
included firearm enhancement; and (5) the trial court erred by
failing to award Villanueva credit for the days he actually spent
in custody.
We conclude, and the People concede, that the trial court
erred in failing to award Villanueva presentence custody credits
and we modify the judgment to award him the credit he is due.
Discerning no cognizable or reversible error in the remaining
claims, we affirm in all other respects.
FACTUAL BACKGROUND
A. Prosecution Evidence
1. The shooting of victim Mark Gonzales
At approximately 8:00 p.m. on January 28, 2016, Mario
Ruiz was outside of his Venice apartment on 7th Avenue,
between Sunset Boulevard and Flower Avenue, when he saw his
friend Mark Gonzales and Gonzales’s girlfriend, Lori Martinez.
The couple was arguing. Upon reaching the intersection of 7th

2
and Flower Avenues, Gonzales crossed the street while Martinez
lagged behind him at the corner.
Ruiz watched as an SUV stopped between Gonzales and
Martinez. The SUV had two people in the front and one in the
back. The rear passenger got out of the SUV and approached
Gonzales.
After announcing that he was from “Culver City,” the
passenger used a handgun to fire multiple shots from a distance
of approximately 10 feet. The shooter returned to the SUV and it
drove away from the scene in an eastbound direction.
Responding police officers found Gonzales unresponsive on
the ground. Nine spent .40-caliber casings were near his body.
Gonzales died as a result of a gunshot wound to the back of his
head. He sustained a second gunshot wound to his heel.
2. Eyewitnesses Ruiz and Martinez select
Villanueva’s photo from six-pack lineup
a. Mario Ruiz’s identification
Although the shooter wore a hoodie sweatshirt, Ruiz could
see that he was a young Hispanic male who appeared to be 22 to
25 years old. Ruiz described the shooter as about six feet tall
with a thin build. Ruiz believed that the shooter used his right
hand to fire the bullets from a large black handgun. Ruiz told his
wife what happened, but did not speak to any of the police
officers who responded to the shooting. When Ruiz was
interviewed by detectives three days after the shooting, he
recounted his observations but said that he did not want to get
involved.
On March 8, 2016, Detective Herman Frettlohr conducted a
recorded interview of Ruiz and showed him a six-pack of
photographs. Ruiz selected Villanueva’s photograph, stating “[i]t
looks like it’s him, dark skinned.” Ruiz, however, was not sure

3
that the person he selected was the shooter. Ruiz also repeatedly
told the detective that he would not go to court because he feared
for his family’s safety.
At Villanueva’s preliminary hearing, Ruiz failed to identify
Villanueva and testified that he did not see the face of the
shooter. At a subsequent court hearing, Ruiz similarly failed to
identify Villanueva as the shooter, but at an elevator
immediately after the hearing, Ruiz told Detective Frettlohr that
he did in fact recognize Villanueva, stating, “[T]hat’s fucking
him.”
b. Lori Martinez’s identification
Martinez described the shooter as a Hispanic male who
wore a hoodie. She estimated the shooter to be 6 feet tall and
approximately 170 pounds. Unlike Ruiz, Martinez believed the
shooter held the handgun in his left hand before he lifted his arm
and clasped his hands together to begin shooting.
When Detective Frettlohr provided her with a six-pack of
photographs, Martinez quickly pointed to photograph number 6,
a person who had no relevance to the case. Martinez believed
that person looked “creepy.” Asked whether she had looked at all
of the photographs closely, Martinez examined all of them before
also selecting Villanueva’s photograph. Martinez believed that
both of the photographs looked like the shooter, but felt the
shooter looked more like photograph number 6.
3. Gang evidence
Both Los Angeles Police Department Officer Julian
Gonzalez and Detective Angel Gomez opined that Villanueva was
a member of the Culver City 13 gang. When Officer Gonzalez
arrested Villanueva and another member of Culver City 13 in
2014, Villanueva admitted his membership in the gang and said
he was known as Goofy. Additionally, Villanueva had tattoos

4
that identified him as a member of Culver City 13. Having seen
Villanueva on a number of occasions between 2014 and 2016,
Officer Gonzalez noticed that he was often in the presence of
Kenneth Godoy, another member of Culver City 13.
Culver City 13 had about 260 members and operated in a
territory that shared the Centinela Avenue border with rival
gang Venice 13. At the time of his death, victim Gonzales was a
member of the Venice 13 gang and was known by the name
“Mono.” He had a number of tattoos that reflected his gang
affiliation.
Approximately one week after the death of Gonzales, some
graffiti was placed in several locations that referenced the
homicide. At one location, which was inside Venice 13 territory—
and just a block away from the place where the shooting
occurred—the graffiti stated, “Rest in piss . . . Mono” with the
word “Mono” crossed out. At another location, a construction site
in Culver City 13 territory, a Culver City 13 tagger took credit for
the killing by using the derogatory term “Verga killer.”
4. Arrest of fellow gang member Kenneth Godoy
On February 12, 2016, Villanueva’s friend and fellow gang
member, Kenneth Godoy, was pursued and arrested after
deputies observed him abandon a bucket that contained a
handgun.1 Godoy later called his wife, Monica Soto, from jail.
During the recorded call, Soto told Godoy that she had been
looking for him with Villanueva who was known to her as
“Astro.”
In August of 2016, after Godoy was arrested on another
matter, Soto went to the police station and initiated a
conversation with Detective Gomez in which she requested that

1 The gun was not tied to the killing of Gonzales.

5
Godoy be released in exchange for information about a murder.
When the detective asked for more specifics, Soto said that it was
a shooting that involved Villanueva and occurred in the
Oakwood-Venice area.
Using her cell phone, Soto played a 30-second recording of a
conversation that she had had with Villanueva. Detective Gomez
testified the voices on the recording sounded like Soto and
Villanueva. He heard a portion in which Soto asked Villanueva
how he knew the person was dead; Villanueva replied he went
back to the crime scene, saw that it was taped off, and saw that
the victim’s girlfriend was crying.
Upon being told that Godoy would not be released, Soto left
without giving the detective a copy of the recording.
5. Arrest of Soto and her statement that
Villanueva confessed to the instant shooting
In late March of 2017, Soto and her previous conversation
with Detective Gomez came to the attention of investigating
Detective Frettlohr after Detective Gomez was transferred into
his division.
Soto was arrested on an outstanding warrant and, in a
recorded interview conducted by two detectives, said that
Villanueva told her that he was responsible for the murder.
Although Soto told the detectives about Villanueva’s admission,
she repeatedly said she would not testify because she feared for
the safety of her family.
After stating that she no longer possessed the recording she
previously played for Detective Gomez, Soto discussed an
interaction that she had had with Villanueva on the day of
Godoy’s arrest in February of 2016. According to Soto,
Villanueva called her and said that he had run from the police

6
and was unable to locate Godoy. Soto drove to Villanueva’s
location and picked him up to look for Godoy.
As they drove around looking for Godoy, Villanueva told
Soto that he shot a man in Venice and that a girl near the victim
screamed. Villanueva told Soto, “[T]hey’re killing us, so we have
to kill them too.”
Soto explained that she used her cell phone to record some
of her conversation with Villanueva because she was concerned
that Godoy could be blamed for the homicide. Soto acknowledged
that she attempted to make use of that recording after Godoy was
arrested.2
6. Villanueva’s arrest and search of his home
On March 24, 2016, Villanueva was arrested at his home in
Los Angeles. He was wearing a T-shirt, the back of which had a
photograph of Tommy Luna—a Culver City gang member
believed to have been killed by someone from Venice 13 prior to
the charged homicide.
Detectives searched Villanueva’s home and found some
Culver City 13 graffiti and clothing commonly worn by members
of the gang. The home’s garage contained a .45-caliber Glock
handgun that could not have been used to commit the charged
homicide. Although the garage did not contain any other guns, it
did contain two fully loaded magazines of .40-caliber bullets,
which was the same caliber used to kill Gonzales. Detectives also
recovered Villanueva’s cell phone during the search.

2 At trial, Soto testified that she lied to police when she told
them that Villanueva had admitted to the shooting. She further
testified that what she told police about the murder she learned
from a Google search.

7
 7. Cellular data from Villanueva’s phone
Cell tower information supported an inference that
Villanueva’s phone traveled from his home toward the scene of
the shooting on the evening of the murder.3
Cell tower information also placed Villanueva’s phone in
the same area as Godoy at the time of Godoy’s arrest in February
of 2016. Other information showed that the very same day,
Villanueva’s phone was used to call Soto’s phone before Godoy
used the phone at jail to speak with Soto.
8. Villanueva’s conversation with undercover
jailhouse informant
After his arrest Villanueva was placed in a jail cell with a
civilian undercover informant—a Hispanic male who was a
former gang member. Before putting Villanueva in the cell,
Villanueva was told he was under arrest for murder, that his
“homies” were talking about him, that witnesses had identified
him, and that the police had his phone records. Villanueva was
not told that a Venice 13 gang member was killed, where the
murder occurred, or any details about the victim or shooting.
Villanueva was put in the cell and sat on the top bunk while the
agent was on the bottom bunk.
During the recorded conversation, Villanueva told the
informant that he was a member of the Culver City gang.
Villanueva said that there was a rivalry between his gang and
Venice 13, with the two gangs frequently shooting at each other.
He claimed that Culver City 13 was winning because Tommy
Luna was the only person from his gang who had been killed.

3Surveillance video from the intersection of Flower Avenue
and 7th Avenue at the time of the shooting was poor quality, but
showed the shooting occurred at 8:11 p.m.

8
Although Villanueva repeatedly told the undercover informant
that he had not committed the charged murder, the denials were
often accompanied by laughter. Moreover, Villanueva made a
number of statements during the conversation that suggested he
was responsible for the homicide.4
About 45 minutes into the interview, detectives removed
Villanueva from the jail cell and told him the murder had
occurred in January 2016, that Godoy had stated Villanueva was
involved, and they showed him Ruiz’s six-pack identification.
After Villanueva returned to his cell, he told the informant
that his “homie” was not with him and only knew “hearsay.”
Villanueva also showed that he knew the homicide occurred at
night as he attempted to discount the significance of any
eyewitness identification by stating, “It was nighttime, though.”

4 Villanueva indicated that the guns he hid inside his home
when the police arrived were “different ones” than the “shit” he
used to “put in some work.” Villanueva subsequently said, “I’m
good” after the informant said, “As long as they [the police] don’t
find your murder weapon, nigga, you good.” Later, when the
informant asked what caliber of gun he used when he “broke that
fool,” Villanueva replied that he did not know and that it was
“long gone.” Villanueva also said that the proper way to dispose
of a gun was piece by piece. Additionally, when the informant
asked Villanueva whether he had any “homies” who could “tell”
on him, Villanueva initially said, “No,” before stating, “Just the
little youngsters, and that’s it.” Villanueva later agreed with a
suggestion that he needed to find out who was “telling” on him.
Villanueva described the case against him as weak and explained
that the person who was telling on him would not “want to come
up because they didn’t see shit.” Villanueva then said,
“Supposedly, there’s one witness. I doubt that.” When the
informant asked if the “fool got done” in his neighborhood,
Villanueva replied, “[i]n his hood.”

9
Villanueva later said that the victim had not been alone when the
shooting occurred.
B. Defense Evidence
A defense investigator watched Villanueva sign some
paperwork. Villanueva used his right hand to sign his name.
C. Charges and Verdict
On May 8, 2017, the People filed a one count information
charging Villanueva with first degree murder (Pen. Code, § 187,
subd. (a)).5 The information further alleged that Villanueva
personally used a firearm that caused great bodily injury or
death (§ 12022.53, subds. (b)-(d)) and that he committed the
crime for the benefit of a criminal street gang (§ 186.22,
subd. (b)).
On November 20, 2019, a jury convicted Villanueva of first
degree murder and found true allegations that the crime was
gang related and that Villanueva personally and intentionally
discharged a firearm, causing death.6
On January 30, 2020, the trial court sentenced Villanueva
to a term of 25 years to life for the murder, plus a consecutive
sentence of 25 years to life on the firearm enhancement, for a
total term of 50 years to life in state prison.7

5 All unspecified statutory references are to the Penal Code.
6The first trial resulted in a mistrial because that jury was
unable to reach a verdict.
7 The trial court struck the 10-year term for the gang
enhancement, in light of the life term imposed for the underlying
offense. (See People v. Lopez (2005) 34 Cal.4th 1002, 1009, 1011
[trial court must strike 10-year enhancement term specified in
§ 186.22, subd. (b)(1)(C) if underlying offense carries life term].)

10
 DISCUSSION
I. Statements Made to Undercover Agent
Villanueva contends the trial court erred by failing to
suppress the recorded statements he made to the jailhouse
informant. He claims to have asserted his right to remain silent
while speaking to detectives outside of his jail cell. As a
consequence, he claims that the police were prohibited from
continuing the undercover operation under Miranda v. Arizona
(1966) 384 U.S. 436. He also contends the statements he made to
the informant were involuntary and thus admitted in violation of
his due process rights.
Respondent counters that Villanueva made no clear
invocation of his Miranda rights to detectives, that Miranda does
not prohibit undercover jailhouse operations such as the one at
issue here, and that any statements made by Villanueva were the
product of his own free will rather than any coercion.
A. Relevant Facts
After the first trial ended in a mistrial, the defense filed a
renewed motion to suppress the statements Villanueva made to
the informant on Miranda and voluntariness grounds. The
parties stipulated to incorporating the record from the prior trial
on the issue. The court indicated it would again deny the motion
but would make a more complete record once it had reread the
record from the prior trial.
The trial court thereafter concluded Villanueva had failed
to make a clear invocation of his right to remain silent by telling
Detective Frettlohr that he would not say anything but wanted to
hear what the detective had to say. Later the trial court stated
that the invocation question was irrelevant because it would not
have precluded the continuation of the undercover operation. It

11
further found that Villanueva’s statements were voluntary and
not coerced.
B. Villanueva’s Miranda Claim Lacks Merit
In Illinois v. Perkins (1990) 496 U.S. 292, 297, the United
States Supreme Court held that a criminal suspect who makes
incriminating statements is not entitled to Miranda warnings
“when the suspect is unaware that he is speaking to a law
enforcement officer and gives a voluntary statement.” (Perkins,
supra, at p. 294.)
Since Perkins, California courts have affirmed the principle
that Miranda has no application to questioning when the suspect
speaks to someone who is not a police officer or a known agent of
police. (People v. Tate (2010) 49 Cal.4th 635, 685 [explaining that
“Miranda protects the Fifth Amendment rights of a suspect faced
with the coercive combination of custodial status and an
interrogation the suspect understands as official”]; People v.
Mayfield (1997) 14 Cal.4th 668, 758; People v. Orozco (2019) 32
Cal.App.5th 802, 814-816; People v. Guilmette (1991) 1
Cal.App.4th 1534, 1537-1541.)
In Mayfield, for example, the California Supreme Court
held that the police did not violate Miranda when, after the
defendant in custody had invoked his right to counsel, the officers
allowed his father to discuss the case with him and then
extracted a report of the conversation.
The court explained that the defendant’s conversation with
his own visitor was not the constitutional equivalent of police
interrogation. In response to the defendant’s claim that his
father operated “as an unwitting or implied police agent,” the
court pointed out that the United States Supreme Court had
previously held that “ ‘[c]onversations between suspects and
undercover agents do not implicate the concerns underlying

12
Miranda.’ ” (People v. Mayfield, supra, 14 Cal.4th at p. 758,
quoting Illinois v. Perkins, supra, 496 U.S. at p. 296.)
Similarly, in Orozco, a defendant who was suspected of
killing his own baby invoked his right to counsel. Following the
invocation, officers encouraged the baby’s mother to get an
explanation before placing her with the defendant in an interview
room with a hidden recording device.
After an officer interrupted the conversation to advise the
couple that an autopsy showed the baby died from a beating, the
defendant told the baby’s mother that he caused the baby’s death
by striking her once. (People v. Orozco, supra, 32 Cal.App.5th at
pp. 810-812.) On appeal, the reviewing court found no Miranda
violation because “there is no ‘interrogation’ when a suspect
speaks with someone he does not know is an agent of the police.”
(Orozco, supra, at p. 814.)
We need not decide whether Villanueva ever invoked his
right to remain silent when police interrupted the undercover
operation to speak with him. Under Tate, Mayfield, and Orozco,
any such invocation would not have prohibited the resumption of
undercover questioning.
C. Villanueva’s Statements to the Informant Were
Voluntary and Not Coerced
We next address whether Villanueva’s statements were
“actually . . . coerced” (Oregon v. Elstad (1985) 470 U.S. 298, 310-
311), and thus “involuntary.” (Dickerson v. United States (2000)
530 U.S. 428, 444; see also Arizona v. Fulminante (1991) 499 U.S.
279, 285-286 & 287, fn. 3 [noting court has “used the terms
‘coerced confession’ and ‘involuntary confession’
interchangeably”].)
Due process precludes the admission of involuntary
statements induced through coercive police tactics. (People v.

13
Linton (2013) 56 Cal.4th 1146, 1176.) “ ‘When, as here, the
interview was tape-recorded, the facts surrounding the giving of
the statement are undisputed, and the appellate court may
independently review the trial court’s determination of
voluntariness.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th
342, 404.)
Villanueva argues that the “sophisticated” tactics used
during the Perkins operation rendered his statements
involuntary. However, “[a] psychological ploy is prohibited only
when, in light of all the circumstances, it is so coercive that it
tends to result in a statement that is both involuntary and
unreliable.” (People v. Mays (2009) 174 Cal.App.4th 156, 164; see
also People v. McCurdy (2014) 59 Cal.4th 1063, 1088 [“The use of
deceptive statements during an investigation does not invalidate
a confession as involuntary unless the deception is the type likely
to procure an untrue statement”].)
Villanueva believed that he was engaged in a conversation
with a fellow gang member. The informant did not threaten
Villanueva or take any action designed to overcome his free will.
(Cf. Arizona v. Fulminante, supra, 499 U.S. at p. 288 [“fear of
physical violence, absent protection from his friend (and
[g]overnment agent) . . . motivated [the defendant] to confess”].)
The repeated instances of laughter during the conversation
further belie any suggestion that Villanueva’s statements were
the product of coercion.
The jailhouse tape recording of the conversation similarly
refutes any suggestion by Villanueva that age differences played
any role whatsoever in the interaction between him and the
informant. People v. Rodriguez (2019) 40 Cal.App.5th 194, 199,
cited by Villanueva, only mentions that, while “[d]eference to
seniority could be a factor in some factual settings” the court “will

14
not embrace this theory as a universal principle based only on
anecdotal speculation.” The same is true here.
Accordingly, the trial court did not err in concluding that
Villanueva’s statements were voluntary and, therefore,
admissible.
II. CALCRIM No. 315
The trial court instructed the jury pursuant to CALCRIM
No. 315, the standard Judicial Council instruction regarding
eyewitness identification. The instruction directs the jury to
consider a number of factors in evaluating eyewitness testimony,
including the witness’s level of certainty.8 Villanueva argues the
inclusion of this factor violates due process in light of the
scientific studies showing little correlation between witness
confidence and witness accuracy.
The Attorney General counters that the issue is forfeited by
Villanueva’s failure to seek modification of the instruction at
trial, the claim must be rejected under California Supreme Court
precedent, and any purported error was harmless in any event.
A. Relevant Law
In People v. Sánchez (2016) 63 Cal.4th 411 (Sánchez), the
California Supreme Court acknowledged that “some courts have
disapproved instructing on the certainty factor in light of the
scientific studies.” (Id. at p. 462.) The court nevertheless
declined to reexamine its previous holdings, explaining there

8 CALCRIM No. 315 reads in relevant part: “You have
heard eyewitness testimony identifying the defendant. As with
any other witness, you must decide whether an eyewitness gave
truthful and accurate testimony. [¶] In evaluating identification
testimony, consider the following questions: [¶] . . . [¶] How
certain was the witness when he or she made an identification?”

15
were a number of identifications in the case, some certain and
some uncertain, and it was not clear that courts in other states
“would prohibit telling the jury it may consider this factor” as the
defendant “would surely want the jury to consider how uncertain
some of the identifications were.” (Ibid.) The court also
determined the instructional claim was forfeited for lack of
objection, and the inclusion of the certainty factor resulted in no
harm to defendant. (Id. at pp. 461-463.)
In a concurring opinion, Justice Liu agreed the claim was
forfeited and any error was harmless, but urged the high court to
reexamine the propriety of the instruction. (Sánchez, supra, 63
Cal.4th at pp. 495, 498 (conc. opn. of Liu, J.).)
In People v. Lemcke (2021) 11 Cal.5th 644 (Lemcke), our
high court reexamined the propriety of CALCRIM No. 315, and
concluded that inclusion of the certainty factor did not violate the
defendant’s due process rights. The court noted the instruction
did not direct the jury that “ ‘certainty equals accuracy’ ”
(Lemcke, supra, at p. 657), that the defendant was permitted to
call an eyewitness identification expert who explained the limited
circumstances when certainty and accuracy are positively
correlated, and that the instruction expressly stated that the
prosecutor must establish the defendant’s identity as the
perpetrator beyond a reasonable doubt. (Id. at pp. 654-661.) The
court further noted that the defendant had the opportunity to
cross-examine the investigating officers and explore any
problematic aspects of the eyewitness identification procedures.
(Id. at p. 660.)
In light of the significance witness certainty plays in the
fact-finding process, however, the court referred the matter to the
Judicial Council to evaluate how the instruction might be
modified to avoid juror confusion on the issue. The court further

16
exercised its supervisory powers to direct trial courts, in the
interim, to omit the certainty factor from the instruction unless a
defendant requested otherwise. (Lemcke, supra, 11 Cal.5th at
pp. 654-661.)
B. Villanueva’s Claim is Forfeited
Villanueva’s trial was completed on November 20, 2019,
well before the issuance of Lemcke’s advisory admonition
regarding CALCRIM No. 315 on May 27, 2021. He interposed no
objection to that instruction below, and the trial court was under
no obligation either to give or modify CALCRIM No. 315 on its
own motion. (See People v. Cook (2006) 39 Cal.4th 566, 599 [no
sua sponte duty to give standard instruction on eyewitness
identification]; People v. Ward (2005) 36 Cal.4th 186, 213 [no sua
sponte duty to modify the standard instruction on eyewitness
identification].)
Like the defendant in Sánchez, Villanueva forfeited any
objection to the court’s instruction. (See Sánchez, supra, 63
Cal.4th at p. 461 [“If [the] defendant had wanted the court to
modify the [certainty] instruction, he should have requested it.
The trial court has no sua sponte duty to do so”].)9

9 Even had the claim been preserved, we would find no
prejudicial error. In both Sánchez and Lemcke, the court
explained that the misleading effect of the instruction “is not
present when a witness has expressed doubt regarding the
identification.” (Lemcke, supra, 11 Cal.5th at p. 669, fn. 19;
Sánchez, supra, 63 Cal.4th at p. 462 [“telling [the jury] to
consider this factor could only benefit [the] defendant when it
came to the uncertain identifications, and it was unlikely to harm
him regarding the certain ones”].) Both eyewitnesses in this case
expressed significant uncertainty at various times in their
identifications. And, as we have thoroughly discussed, the two
eyewitnesses were far from the only evidence linking Villanueva

17
III. Cumulative Error
Villanueva contends the cumulative effect of the errors
alleged above denied him due process and compels reversal. In
light of our disposition, there are no multiple trial errors to
accumulate. (People v. Capers (2019) 7 Cal.5th 989, 1017-1018.)
IV. Failure of Trial Court to Consider Imposing “Lesser
Included” Firearm Enhancement
The jury found true the allegation that Villanueva
personally and intentionally discharged a firearm causing death
pursuant to section 12022.53, subdivision (d).
At sentencing, the trial court acknowledged it had
discretion to strike the firearm enhancement pursuant to section
12022.53, subdivision (h),10 but declined to do so. The trial court
noted that Villanueva fired off nine rounds and personally
gunned down the victim without any provocation. Accordingly,
the trial court imposed the 25 years to life term for the
enhancement.

to the crime. In light of the overall record, we are confident that
the inclusion of the certainty factor in this case did not result in
prejudicial error. (Lemcke, supra, at p. 661; Sánchez, supra, at
p. 463.)
10Effective January 1, 2018, the Legislature enacted
Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682,
§ 2), which amended section 12022.53, subdivision (h), to grant
courts discretion to “strike or dismiss” a firearm enhancement
imposed under section 12022.53 “ ‘in the interest of justice
pursuant to [s]ection 1385.’ ” (People v. Morrison (2019) 34
Cal.App.5th 217, 221-222 (Morrison); see People v. McDaniels
(2018) 22 Cal.App.5th 420, 428.)

18
 Villanueva now asserts that the case must be remanded
because the trial court was unaware it had the additional option
to replace the section 12022.53, subdivision (d) enhancement with
a “ ‘lesser included’ ” firearm enhancement under subdivision (b)
or (c) as recognized in Morrison, supra, 34 Cal.App.5th at pp. 222-
223. We disagree.
In Morrison, the court concluded that, in addition to the
discretionary ability to strike a section 12022.53 firearm
allegation, courts also have “discretion to modify the
enhancement from that established by section 12022.53,
subdivision (d) . . . to a ‘lesser included’ enhancement under
section 12022.53, subdivision (b) or (c), which carry lesser terms
of 10 years or 20 years, respectively.” (Morrison, supra, 34
Cal.App.5th at p. 221.)11
A number of other courts have since disagreed with
Morrison, and the issue is now before the California Supreme
Court. (People v. Valles (2020) 49 Cal.App.5th 156, 166-167,
review granted July 22, 2020, S262757; People v. Garcia (2020)
46 Cal.App.5th 786, 790, review granted June 10, 2020, S261772;
People v. Yanez (2020) 44 Cal.App.5th 452, 458-460, review
granted Apr. 22, 2020, S260819; People v. Tirado (2019) 38
Cal.App.5th 637, 643, review granted Nov. 13, 2019, S257658.)
We need not join in the debate because we agree with the
People that Villanueva has forfeited his claim by failing to raise
the argument before the sentencing court.

11 As in Morrison, the initial information in our case pled
enhancements under section 12022.53, subdivisions (b), (c) and
(d), but the jury was only given the option of finding true the
subdivision (d) allegation.

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 “ ‘A party in a criminal case may not, on appeal, raise
“claims involving the trial court’s failure to properly make or
articulate its discretionary sentencing choices” if the party did
not object to the sentence at trial.’ ” (People v. Sperling (2017) 12
Cal.App.5th 1094, 1100, quoting People v. Gonzales (2013) 31
Cal.4th 745, 751; accord, People v. Scott (1994) 9 Cal.4th 331,
353.)
Morrison was decided on April 11, 2019. Villanueva was
sentenced on January 30, 2020. Prior to pronouncing sentence,
the court expressly directed the parties to present any arguments
regarding the court’s discretion under section 12022.53,
subdivision (h) and stated it did not want the matter remanded
back to the court for any aspect that may have been overlooked or
forgotten. Notwithstanding, defense counsel requested no
modification or reduction of the firearm-related penalty, but
instead asked the court to strike the enhancement out of “mercy”
for Villanueva.12
V. Presentence Custody Credits
Villanueva contends that he was entitled to 1,408 days of
presentence custody credit. The Attorney General agrees, as do
we. Villanueva was arrested on March 24, 2016, and was
sentenced on January 30, 2020. Under California law, a criminal

12 To the extent Villanueva relies on cases such as People v.
Billingsley (2018) 22 Cal.App.5th 1076, 1077-1082 and People v.
Garcia (2018) 28 Cal.App.5th 961, 971-973, to support his
remand request, that reliance is misplaced. Absent evidence to
the contrary, reviewing courts “presume that the trial court knew
and applied the governing law.” (People v. Gutierrez (2014) 58
Cal.4th 1354, 1390; accord, Morrison, supra, 34 Cal.App.5th at
p. 225.)

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defendant is entitled to credit for all days spent in custody from
the day of arrest until the day of sentencing. (People v.
Rajanayagam (2012) 211 Cal.App.4th 42, 48; People v. Morgain
(2009) 177 Cal.App.4th 454, 469.) Accordingly, he is entitled to
1,408 days of presentence custody credit.
DISPOSITION
The judgment is modified to reflect an award of 1,408 days
of presentence custody credit. As modified, the judgment is
affirmed. The trial court is directed to prepare and forward to
the Department of Corrections and Rehabilitation an amended
abstract of judgment.
NOT TO BE PUBLISHED

CRANDALL, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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