Filed 6/12/14 P. v. Cordova CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058239
v. (Super.Ct.No. FVA1100476)
RAYMOND CORDOVA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed with directions.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, Meagan J.
Beale and Stacy A. Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant Raymond Cordova guilty of attempted murder and
rendered true findings that he personally used and discharged a firearm, and inflicted
great bodily injury on his victim. The trial court sentenced defendant to nine years in
state prison for the attempted murder conviction and imposed a consecutive sentence of
25 years to life for the firearm discharge and great bodily injury findings under Penal
Code1 section 12022.53, subdivisions (d) and (e)(1).
Defendant’s sole argument on appeal is that he did not receive constitutionally
adequate notice that he might be sentenced to 25 years to life for personally discharging a
firearm and causing great bodily injury because the felony information alleged that a
“principal” discharged a firearm and did not specifically allege that he personally did so,
and because the information contained erroneous gang allegations. The People respond
that defendant received adequate notice, and that in any event defendant forfeited his
challenge on appeal because he did not object to the alleged inadequacy in the
information.
We conclude defendant received adequate notice that he might be sentenced to
25 years to life for personally discharging a firearm and causing great bodily injury,
notwithstanding uncertainty in the information. We also agree with the People that
defendant should have objected to the uncertainty in the information either before trial or
after the trial court properly instructed the jury that defendant was alleged to have
personally discharged a firearm and to have caused great bodily injury. Because
1 All further statutory references are to the Penal Code.
2
defendant did not object, we conclude he forfeited his argument on appeal and we affirm
the judgment.
I.
PROCEDURAL BACKGROUND2
By felony complaint, the People charged defendant with one count of attempted
murder (§§ 664, 187, subd. (a)) and one count of active participation in a criminal street
gang (§ 186.22, subd. (a)). With respect to the attempted murder count, the People
alleged the crime was a serious felony (§ 1192.7, subd. (c)) and a violent felony (§ 667.5,
subd. (c)). The People also alleged that defendant committed the attempted murder for
the benefit of, at the direction of, or in association with a criminal street gang and with
the specific intent to promote, further, or assist in criminal conduct by members of a
criminal street gang (§ 186.22, subd. (b)(1)(C)); that a principal personally discharged a
firearm, causing great bodily injury (§ 12022.53, subds. (d), (e)(1)); that a principal
personally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); and that a principal
personally used a firearm (§ 12022.53, subds. (b), (e)(1)).
At defendant’s July 2, 2012, preliminary examination, the People informed the
magistrate they would no longer be proceeding against defendant on the substantive gang
charge or on the gang enhancement. The magistrate held defendant over for trial on the
attempted murder count and ruled that “the personal and intentional discharge of a
2 A discussion of the facts of the underlying offense is not necessary to resolve
the issues on appeal.
3
firearm also was established . . . .” The People filed an information charging defendant
with the sole count of attempted murder and again alleged that the attempted murder
constituted a serious and violent felony; that a “principal” personally discharged a firearm
and proximately caused great bodily injury to the victim; that a “principal” personally
discharged a firearm; and that a “principal” personally used a firearm.
At a trial readiness conference held on January 11, 2013, defendant informed the
trial court that he wished to make a Marsden3 motion. In open court and during the
closed hearing on his motion, defendant indicated his understanding that he was facing a
sentence of 25 years. The trial court denied the motion.
Before trial, the People filed an amended information, which included the
attempted murder count and the same firearm allegations against a “principal.” In
addition, the amended information alleged that, in the commission of the attempted
murder, “defendant(s) Raymond Cordova personally used a firearm(s)” within the
meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a), and that
“defendant(s) Raymond Cordova personally inflicted great bodily injury” on the victim
within the meaning of section 12022.7, subdivision (a).
During trial, the parties discussed jury instructions with the trial judge in
chambers. Before reading the instructions to the jury, the judge asked the prosecutor and
defendant’s appointed attorney if they had any objections to the instructions and both
attorneys submitted. The trial judge instructed the jury, “It is alleged as to Count 1 that
3 People v. Marsden (1970) 2 Cal.3d 118.
4
the defendant, Raymond Cordova, personally used a firearm,” that “defendant, Raymond
Cordova, personally discharged a firearm,” that “defendant, Raymond Cordova,
personally discharged a firearm causing great bodily injury,” and that “defendant,
Raymond Cordova, personally inflicted great bodily injury upon” the victim. The judge
instructed the jury that for each allegation it had to enter a finding of true or not true, and
that if it found defendant guilty on the sole count of attempted murder it then had to
decide whether the People proved the allegations that defendant “personally used a
firearm,” that he “personally and intentionally discharged a firearm during that crime and,
if so, whether the defendant’s act caused great bodily injury,” and that he “personally
inflicted great bodily injury” upon the victim.
The jury found defendant guilty on the sole count of attempted murder and
rendered true findings on all of the special allegations. The trial court sentenced
defendant to the upper term of nine years in state prison for the attempted murder
conviction, and imposed a consecutive sentence of 25 years to life pursuant to section
12022.53, subdivisions (d) and (e)(1) for the true finding that defendant personally and
intentionally discharged a firearm and caused great bodily injury. The court stayed the
sentence on the remaining true findings of causing great bodily injury and personally
using a firearm.
Defendant timely appealed.
5
II.
DISCUSSION
Defendant contends the amended information did not provide him with
constitutionally adequate notice that he might be sentenced to 25 years to life because it
alleged that a “principal” personally discharged a firearm and caused great bodily injury,
and because the reference to subdivision (e)(1) of section 12022.53 showed the People
were seeking to impose vicarious responsibility based on gang affiliations that were never
proven. The People contend the information provided defendant with adequate notice
because the term “principal” includes defendant and that inclusion of the gang
subdivision was superfluous. In the alternative, the People contend the defendant was
provided with sufficient notice of the sentence he faced through the instructions read to
the jury, and he forfeited his challenge on appeal by not objecting to the information.
We conclude the amended information was uncertain and by itself probably did
not provide defendant with constitutionally adequate notice. However, we hold
defendant did, in fact, have adequate notice that he faced a sentence of 25 years to life for
personally and intentionally discharging a firearm and causing great bodily injury and,
therefore, he has not established a due process violation. We also hold that by not
demurring to the amended information or objecting to the jury instructions, which did not
conform to the amended information, defendant forfeited his appellate challenge.
Initially, we note that the issue in this case is not whether the defendant’s due
process rights were violated because he received a sentence enhancement that was never
pleaded. The decisions in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo) and
6
People v. Botello (2010) 183 Cal.App.4th 1014 (Botello), on which defendant relies, are
therefore not on point because the defendants in those cases were subjected to sentence
enhancements that were not pleaded in the accusatory pleading. (Mancebo, at p. 740;
Botello, at pp. 1021-1022.)
A.
THE AMENDED INFORMATION WAS UNCERTAIN
Enhancements for personal use of or discharge of a firearm “shall be alleged in the
accusatory pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.” (§ 12022.53, subd. (j); see also § 1170.1, subd. (e).) “‘[I]n
addition to the statutory requirements that enhancement provisions be pleaded and
proven, a defendant has a cognizable due process right to fair notice of the specific
sentence enhancement allegations that will be invoked to increase punishment for his
crimes.’ [Citation.]” (In re Varnell (2003) 30 Cal.4th 1132, 1143, italics omitted.)
An accusatory pleading must state the charges and special allegations “in ordinary
and concise language” sufficient to provide the defendant with “notice of the offense of
which he is accused.” (§ 952.) The words in an accusatory pleading must be given “their
usual acceptance in common language” except for words “defined by law, which are
construed according to their legal meaning.” (§ 957.) As pertinent here, “principal” has
a specific legal definition apart from its ordinary meaning. A principal is defined as any
person “concerned in the commission of a crime, whether it be a felony or misdemeanor,
and whether they directly commit the act constituting the offense, or aid and abet in its
7
commission, or, not being present, have advised and encouraged its commission . . . .”
(§ 31.)
Section 12022.53, which applies to attempted murder (id. at subd. (a)(1), (18)),
provides for graduated sentencing enhancements for the use of a firearm in the
commission of specified crimes. If applicable, section 12022.53 mandates an additional
sentence of 10 years in state prison if the defendant personally used a firearm (id. at
subd. (b)), 20 years in state prison if he personally and intentionally discharged a firearm
(id. at subd. (c)), and 25 years to life in state prison if he personally and intentionally
discharged a firearm, and proximately caused great bodily injury (id. at subd. (d)). These
sentence enhancements are also applicable to a “principal” in the commission of the
underlying crime if the People plead and prove: (1) the “principal” is guilty of
committing the offense for the benefit of, at the direction of, or in association with a
criminal street gang, and with the specific intent to promote, further, or assist in criminal
activity of gang members, in violation of section 186.22, subdivision (b); and (2) any
“principal” involved in the commission of the underlying crime personally used a
firearm, personally and intentionally discharged a firearm, or personally and intentionally
discharged a firearm and caused great bodily injury. (§ 12022.53, subd. (e)(1)(A), (B).)
We conclude the operative accusatory pleading in this case is uncertain on its face.
In both the original and amended informations, the allegations of personal use of and
discharge of a firearm under section 12022.53 referred to an unnamed “principal,”
whereas the two additional allegations added when the information was amended referred
to defendant by name. Moreover, the allegations of personal use of and discharge of a
8
firearm resulting in great bodily injury referred to subdivisions (d) and (e)(1) of section
12022.53. Reference to subdivision (d) was uncontroversial, but the reference to
subdivision (e)(1)—which is limited to use and discharge of a firearm in the commission
of crimes committed for the benefit of, at the direction of, or in association with a
criminal street gang (§ 12022.53, subd. (e)(1)(A))—was clearly an error in drafting
because the People had already expressly disavowed any intention of proceeding on gang
charges or enhancements and presented no gang evidence whatsoever. Although
defendant fell within the broad definition of a “principal” found in section 31, the
People’s failure to strike the designation of “principal” in the amended information and to
specifically name defendant was confusing.
Although we conclude the amended information was uncertain, and by itself
probably would not have provided defendant with adequate notice that he faced a
sentence of 25 years to life for personally discharging a firearm and causing great bodily
injury, in the next section we conclude defendant did ultimately have constitutionally
adequate notice that he faced that sentence enhancement. We also hold in the next
section that defendant forfeited an appellate challenge to any uncertainty in the amended
information by not demurring to it or objecting that the jury instructions did not conform
to the amended information.
9
B.
DEFENDANT RECEIVED ADEQUATE NOTICE THAT HE FACED A SENTENCE
OF 25 YEARS TO LIFE FOR PERSONALLY DISCHARGING A FIREARM AND
CAUSING GREAT BODILY INJURY, AND HE FORFEITED HIS OBJECTIONS TO
THE UNCERTAINTY IN THE AMENDED INFORMATION
A defendant’s remedy for uncertainty and inadequate notice in the accusatory
pleading is to demur. (§ 1004; People v. Ramirez (2003) 109 Cal.App.4th 992, 997;
People v. Hathaway (1972) 27 Cal.App.3d 586, 594.) Failure to timely object to the
uncertainty by demurrer constitutes a forfeiture of the objection on appeal. (People v.
Holt (1997) 15 Cal.4th 619, 672; People v. Jennings (1991) 53 Cal.3d 334, 356; People v.
Polowicz (1992) 5 Cal.App.4th 1082, 1094.)
We agree with the People that the decision in People v. Houston (2012) 54 Cal.4th
1186 (Houston) is controlling. There, the defendant argued the trial court improperly
sentenced him to life in prison on 10 attempted murder counts because the indictment did
not allege that the attempted murders were willful, deliberate, and premeditated. (Id. at
pp. 1225-1226.) During a discussion with counsel about verdict forms, the trial court
presented drafts in which the jury would be asked to determine whether the attempted
murders were willful, deliberate, and premeditated, which, the trial court explained,
would be punished by life imprisonment. (Id. at p. 1226.) Later, the trial court informed
the parties that it intended to provide the jury with a verdict form that separately listed
deliberate and premeditated murder as a special finding, and the court instructed the jury
10
accordingly. (Ibid.) At no time did the defendant object to the trial court’s instructions
or verdict forms. (Ibid.)
On appeal, the People conceded the indictment did not plead that the attempted
murders were deliberate and premeditated but argued the defendant forfeited his
challenge on appeal. (Houston, supra, 54 Cal.4th at p. 1226.) The Supreme Court agreed
with the People, and rejected the defendant’s assertion that he was not provided with
sufficient notice of the sentences he faced. Because the trial court expressly discussed
with the defendant and his attorney the jury instructions and verdict forms on willful,
deliberate, and premeditated murder, and the trial court stated on the record that guilty
verdicts would result in a life sentence, the Supreme Court held the defendant was not
deprived of his due process right to adequate notice that he might be sentenced to life in
prison. (Id. at pp. 1227-1228.) And because the defendant did not timely object to the
verdict forms and jury instructions, the defendant forfeited on appeal any claim that the
verdict forms and jury instructions did not conform to the indictment. (Ibid.)
Applying Houston to this case, we conclude that, notwithstanding the uncertainty
in the amended information, defendant received constitutionally adequate notice that he
faced a sentence enhancement of 25 years to life for personally discharging a firearm and
causing great bodily injury. Before and during his Marsden hearing, defendant stated his
understanding that he was looking at a sentence of 25 years yet he did not object to the
uncertainty in the amended information by demurring to it or by otherwise objecting. As
noted, the trial judge instructed the jury that the People alleged that “defendant, Raymond
Cordova, personally used a firearm,” that “defendant, Raymond Cordova, personally
11
discharged a firearm,” that “defendant, Raymond Cordova, personally discharged a
firearm causing great bodily injury,” and that “defendant, Raymond Cordova, personally
inflicted great bodily injury upon” the victim. (Italics added.) The judge also instructed
the jury that, if it found defendant guilty on the sole count of attempted murder, it had to
decide whether “defendant personally used a firearm,” whether “defendant personally
and intentionally discharged a firearm during that crime and, if so, whether the
defendant’s act caused great bodily injury,” and whether “defendant personally inflicted
great bodily injury” upon the victim. (Italics added.) From these instructions, and from
defendant’s own statements, we conclude defendant received the constitutional notice of
which he was entitled.
We also conclude defendant forfeited his challenge on appeal. At no time did
defendant demur to the amended information as uncertain or object to the jury
instructions as not conforming to the allegations in the information. Had defendant
timely demurred or objected, the trial court could have fashioned an appropriate remedy.
(Houston, supra, 54 Cal.4th at pp. 1227-1228.) He cannot wait until now to object.
We are not convinced by defendant’s argument that Houston is limited to its facts
and that the Supreme Court did not decide whether appellate forfeiture may be found in
the absence of some statement by the trial court of what punishment the defendant might
face. The court in Houston stated it had no occasion to decide whether the Court of
Appeal in People v. Arias (2010) 182 Cal.App.4th 1009 erred by finding no appellate
forfeiture where the record was unclear if the trial court addressed the defendant’s
potential punishment while discussing jury instructions and verdict forms. (Houston,
12
supra, 54 Cal.4th at p. 1229.) Houston did not expressly hold that forfeiture may only be
found under such circumstances, and merely stated it found forfeiture on the facts before
it. (Ibid.) The Houston court’s reliance on People v. Bright (1996) 12 Cal.4th 652
(Bright) is telling (Houston, at pp. 1226-1227) because, in Bright, there was no
discussion of potential punishment before the jury was instructed yet the court there
found a similar forfeiture (Bright, at pp. 656, 658-660, 670-671, overruled on another
point by People v. Seel (2004) 34 Cal.4th 535, 550, fn. 6).
Even if forfeiture under Houston may only be found when there is some
discussion on the record of what punishment the defendant might face, the circumstances
of this case are sufficiently similar. True, unlike in Houston, the trial court did not
inform defendant of the sentence he faced on the firearm use and discharge allegations.
But defendant’s own statements show he was aware that he faced a sentence of 25 years
to life. Although defendant only stated on the record that he was facing 25 years, and he
did not expressly state he was facing 25 years to life, it is clear he was speaking in
shorthand. Once the gang allegations were off the table, the only way defendant could
have faced a sentence of 25 years was if the jury found true the allegations that he
personally used a firearm and caused great bodily injury, for which defendant would be
sentenced to 25 years to life. Finally, the jury instructions—to which he interposed no
objections—clearly indicated that such punishment would be imposed only if the jury
concluded defendant personally and intentionally discharged a firearm and caused great
bodily injury. An additional statement from the trial court would have added nothing to
defendant’s knowledge and notice of what punishment he faced.
13
In his reply brief, defendant contends his statements on the record that he faced
25 years merely referred to his understanding that the People were alleging a vicarious
gang enhancement under section 12022.53, subdivision (e)(1). We are not persuaded
because defendant made those statements almost seven months after the prosecution
expressly informed him that it would not be pursuing any gang charges or enhancements,
and any remaining confusion defendant may have had after hearing the jury instructions
should have been addressed at that time.
C.
THE MINUTE ORDER OF SENTENCING AND ABSTRACT OF
JUDGMENT MUST BE CORRECTED
The People contend, and defendant does not dispute, that if imposition of the
enhancement under section 12022.53, subdivision (d), is affirmed, the record must be
corrected to remove the superfluous reference to subdivision (e)(1). We agree and direct
the clerk of the superior court to correct the March 27, 2013 minute order from
sentencing and the abstract of judgment to remove the reference to subdivision (e)(1) of
section 12022.53.4
4 Because we now direct the minute order and abstract of judgment to be
corrected, we deny the People’s additional request that we order the transcript of the oral
proceedings to be similarly corrected.
14
In addition, contrary to the reporter’s transcript, the March 27, 2013 minute order
states the trial court struck the section 12022.5, subdivision (a), personal firearm use
allegation and suspended sentence on the remaining great bodily injury and firearm use
allegations, pursuant to section 12022.53, subdivision (f). The trial court lacked authority
to strike the section 12022.5, subdivision (a), enhancement or to suspend imposition or
execution of sentence on the true findings under section 12022.53, subdivisions (b) and
(c). (§§ 12022.5, subd. (c), 12022.53, subd. (g).) Instead, the court properly imposed
then stayed the enhancements. (People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130.)
On our own motion, we direct the clerk of the superior court to correct the minute order
to conform to the oral pronouncement of sentence. (See People v. Contreras (2009) 177
Cal.App.4th 1296, 1300, fn. 3.)
III.
DISPOSITION
The clerk of the superior court is directed to correct the minute order from
defendant’s sentencing and the abstract of judgment to remove the references to
subdivision (e)(1) of section 12022.53 and to indicate the trial court stayed the sentence
on the firearm and great bodily injury enhancements found true under sections 12022.5,
subdivision (a), 12022.53, subdivisions (b) and (c), and 12022.7, subdivision (a).
15
The clerk of the superior court is further directed to forward the corrected minute
order and abstract of judgment to the Department of Corrections and Rehabilitation. As
corrected, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
KING
J.
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People v. Cordova CA4/2
Combined Opinion