People v. Diaz CA2/8 ( 2021 )

Filed 10/6/21 P. v. Diaz CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303103
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113304)
v.
GABRIEL DIAZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Affirmed in part,
reversed in part, and remanded.
Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Steven D. Matthews and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
A jury convicted Gabriel Diaz of attempted willful,
deliberate, and premediated murder, shooting at an occupied
motor vehicle, robbery, and possession of a firearm by a felon.
On appeal, he contends there is insufficient evidence showing the
attempted murder was premeditated. He also asserts the trial
court erred in refusing to instruct the jury on heat-of-passion
voluntary manslaughter and made numerous sentencing errors.
We vacate the sentence and remand for the trial court to correct
several sentencing errors. We affirm the judgment in all other
respects.
FACTUAL AND PROCEDURAL BACKGROUND
Diaz was charged by information with attempted willful,
deliberate, and premeditated murder (Pen. Code, §§ 664, 187,
subd. (a); count 1),1 shooting at an occupied motor vehicle (§ 246;
count 2), second degree robbery (§ 211; count 3), and possession of
a firearm by a felon (§ 29800, subd. (a)(1); count 4). The
information alleged gang enhancement allegations as to all four
counts (§ 186.22, subd. (b)(1)(A)), and various firearm
enhancement allegations on counts 1, 2, and 3 (§ 12022.53, subds.
(b), (c), (e)(1)).
The case was tried to a jury, and the prosecution presented
the following evidence.
Steven Martinez testified that on the evening of August 5,
2016, he was sitting in a parked car outside his house, talking to
his wife on the phone. A red Mustang pulled up and parked
nearby. Diaz got out of the passenger-side door of the Mustang,
ran up to Martinez, and pointed a gun at his head. Diaz said he
was from the Happy Town gang and was going to “blow
1 All undesignated statutory references are to the Penal
Code.
2
[Martinez’s] brains out.” Diaz held the gun in one hand and
started hitting Martinez in the face with his free hand. Diaz was
with another man, who also started hitting Martinez in the face.
The men took Martinez’s phone. Diaz threatened that if
Martinez followed him, he would kill Martinez and his family.2
Diaz and the other man got in the Mustang and drove away.
Martinez was angry and fearful for his family. He decided
to follow the Mustang to try to get its license plate number.
Martinez followed the Mustang for about a block before it
stopped, and Martinez saw his phone thrown out the passenger-
side window. The Mustang started driving again, and Martinez
continued to follow it. Almost immediately, the Mustang stopped
a second time and Diaz got out of the car. Diaz aimed a gun at
Martinez and started firing. Martinez was about 20 feet from the
back of the Mustang at the time.
The first shot came through Martinez’s windshield and he
ducked. Martinez put the car in drive and accelerated, hoping to
hit Diaz. Instead, he hit the Mustang. Martinez jumped out of
the car and yelled for someone to call the police. Diaz got back in
the Mustang through the passenger-side door, and it drove away.
Martinez suffered a gunshot wound to the torso. There
were six or seven bullet holes in his car.
Gilbert Madrid testified that he and Diaz were members of
the Happy Town gang. On August 5, 2016, Madrid agreed to
drive Diaz and two other Happy Town members to Pasadena in
his two-door Mustang. As they were driving through a rival
gang’s territory, Diaz said he needed to use the restroom, so
2 Martinez did not explicitly say who made this threat.
However, he testified that Diaz “was in charge, lead of
everything,” and his accomplice “didn’t say anything.”
3
Madrid pulled over. Diaz and one of the other passengers,
Smiley, got out of the car. A few moments later, Diaz and Smiley
came running back to the car, telling Madrid to “go, go, go.”
Smiley got in the backseat and Diaz got in the front passenger
seat.
Madrid drove until he felt something collide with his car.
Diaz got out of the car, and Madrid heard gunshots. Diaz got
back in the car holding a semiautomatic firearm, and he told
Madrid to drive. Diaz said “green light,” which Madrid
understood to mean that if he talked about the shooting there
would be a green light to kill him. Madrid asked what happened,
but Diaz told him only that they “hit some guy up and maybe hit
him or something.” Madrid drove to his house.
Police recovered nine-millimeter shell casings at the scene
of the shooting and from the front passenger floorboard of
Madrid’s car. All the casings were determined to have been fired
from the same firearm.
The prosecution’s gang expert testified that the Happy
Town gang’s primary activities include robberies, possession of
firearms, assaults, and grand theft auto. In 2014, Happy Town
members committed vehicle theft, robbery, unlawful possession of
a firearm by a felon, and terrorist threats. When presented with
a hypothetical situation generally mirroring the facts of this case,
the expert opined the various crimes were committed to benefit
the gang. As to the attempted murder in particular, he explained
that the victim showed disrespect by following the gang
members, despite their warning. Shooting the victim was a form
of intimidation and ensured the gang members were able to
escape.
4
The jury found Diaz guilty on all four counts and found
true the allegation that the attempted murder was committed
willfully, deliberately, and with premeditation. It also found true
the gang and firearm enhancement allegations on each count,
except the section 12022.53, subdivision (c) allegation on the
robbery count.
The court imposed an aggregate sentence of 15 years to life,
plus 53 years. On count 1, it imposed 15 years to life, plus 10
years for the gang enhancement (§ 186.22, subd. (b)(1)(C)) and 20
years for the firearm enhancement (§ 12023.53, subd. (c)).3 On
count 3, the court imposed a consecutive term of 23 years,
consisting of the mid-term of three years, plus 10 years for the
gang enhancement (§ 186.22, subd. (b)(1)(C)) and 10 years for the
firearm enhancement (§ 12023.53, subd. (b)). On count 4, the
court imposed a concurrent term of 22 years, consisting of the
mid-term of two years, plus 10 years for the gang enhancement
(§ 186.22, subd. (b)(1)(C)) and 10 years for a firearm
enhancement (§ 12023.53, subd. (b)). The court stated it believed
the sentence on count 2 should be stayed under section 654.
Diaz timely appealed.
3 The court stayed the section 12023.53, subdivision (b)
enhancement on count 1. The minute order indicates the court
also stayed the gang enhancement. At sentencing, however, the
court stated the gang enhancement would run consecutive to the
15-years-to-life sentence. “Where there is a discrepancy between
the oral pronouncement of judgment and the minute order or the
abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.)
5
DISCUSSION
I. Substantial Evidence Supports the Jury’s
Premeditation Finding
Diaz contends there is insufficient evidence to support the
jury’s finding that he committed the attempted murder with
premeditation. We disagree.
“ ‘To determine whether sufficient evidence supports a jury
verdict, a reviewing court reviews the entire record in the light
most favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that
a reasonable jury could find the defendant guilty beyond a
reasonable doubt.’ [Citation.]” (People v. Smith (2014) 60 Cal.4th
603, 617.) “[I]t is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts on which that determination depends. [Citation.] Thus,
if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our
evaluation of a witness’s credibility for that of the fact finder.
[Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)
This standard of review applies to claims involving both
direct and circumstantial evidence. “ ‘We “must accept logical
inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]” [Citation.] “Although it is
the jury’s duty to acquit a defendant if it finds the circumstantial
evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not
the appellate court that must be convinced of the defendant’s
guilt beyond a reasonable doubt. [Citation.]” [Citation.] Where
the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also
6
reasonably be reconciled with a contrary finding does not warrant
the judgment’s reversal. [Citation.]’ [Citation.]” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the
Supreme Court identified three categories of evidence relevant to
a finding of deliberation and premeditation: (1) planning;
(2) motive; and (3) the manner of killing. The categories are not
exhaustive; nor does Anderson require they be accorded a
particular weight or be present in some special combination.
Nevertheless, “ ‘when the record discloses evidence in all three
categories, the verdict generally will be sustained.’ ” (People v.
Stitely (2005) 35 Cal.4th 514, 543.)
Here, the record contains all three Anderson categories of
evidence. Planning is shown by evidence that, during the robbery
and while in a rival gang’s territory, Diaz displayed a gun and
threatened to kill Martinez if he followed after him and his
accomplice. From this, the jury could infer that Diaz
contemplated the possibility of murder well in advance of the
shooting. (See People v. Young (2005) 34 Cal.4th 1149, 1183
[evidence that the defendant executed a planned entry into a
home armed with a loaded gun supported an inference that he
considered the possibility of murder in advance].)
The jury could also infer planning from the sequence of
events immediately preceding the shooting. According to
Martinez, the Mustang stopped as he was following it, and a
passenger threw his stolen phone out the window. The Mustang
then started driving, and Martinez continued to follow it.
Moments later, the Mustang stopped again, and Diaz got out and
started firing at Martinez. From this, the jury could reasonably
infer that Diaz formed a plan to throw the phone out the window
7
as a test to see if Martinez would continue following them. Once
it was clear Martinez would, Diaz told the driver to stop and
acted on his earlier threat to kill Martinez.
There is also strong evidence of motive. As noted above,
Diaz threatened to kill Martinez if he followed him after the
robbery. Martinez did not heed this warning, and instead drove
behind the Mustang, even after he could have recovered his
phone. The jury could reasonably infer Diaz decided to kill
Martinez because he felt disrespected or in order to decrease the
chance he would be caught for the robbery. Such inferences find
further support in the gang expert’s testimony.
Finally, the manner of the attempted killing supports a
finding of premeditation. Based on the sequence of events
summarized above, the jury could infer that Diaz tested Martinez
by throwing the phone out the window before directing the driver
to stop the Mustang a second time. He then got out of the car,
turned toward Martinez, and fired six to seven shots in his
direction. This suggests Diaz’s actions were premeditated and
deliberate, rather than a rash outburst of emotion. Considered
with the strong evidence of planning and motive, there is
substantial evidence supporting the jury’s finding that the
attempted murder was premeditated.
8
II. The Trial Court Did Not Err In Refusing to Instruct
the Jury On Heat-of-Passion Attempted
Manslaughter
Diaz contends the trial court erred by refusing to instruct
the jury on heat-of-passion attempted manslaughter. We
disagree.4
A defendant who intentionally attempts to kill in a heat of
passion can be found guilty only of attempted voluntary
manslaughter. (§ 192, subd. (a).) Heat of passion has both an
objective and a subjective component. (People v. Steele (2002)
27 Cal.4th 1230, 1252–1253 (Steele).) The objective component
requires a “ ‘provocation’ sufficient to cause an ‘ “ordinary
[person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than
from judgment.” ’ [Citations.]” (People v. Breverman (1998)
19 Cal.4th 142, 163.) The subjective component requires the
defendant attempt to kill under the heat of passion. (Steele,
supra, at pp. 1252–1253.)
A trial court is required to instruct on heat-of-passion
attempted manslaughter if the theory is supported by substantial
evidence. (See People v. Breverman, supra, 19 Cal.4th at p. 154;
People v. Thomas (2013) 218 Cal.App.4th 630, 643.) Substantial
evidence in this context is evidence “ ‘ “from which a jury
composed of reasonable persons could conclude that the facts
underlying the particular instruction exist.” [Citations.]’
4 We reject the Attorney General’s contention that Diaz
forfeited some of his arguments by failing to fully articulate them
in the trial court. (See People v. Peoples (2016) 62 Cal.4th 718,
741–742.)
9
[Citation.]” (People v. Enraca (2012) 53 Cal.4th 735, 759.) It does
not mean “ ‘ “any evidence, no matter how weak,” ’ ” but rather,
“ ‘ “ ‘evidence from which a jury composed of reasonable [persons]
could . . . conclude[ ]’ ” that the lesser offense, but not the greater
was committed.’ ” (People v. Moye (2009) 47 Cal.4th 537, 553.)
In this case, defense counsel requested the trial court
instruct the jury on attempted manslaughter based on heat of
passion. In support, counsel argued the jury might determine
from Madrid’s testimony that Diaz fired the shots in a heat of
passion caused by Martinez striking the Mustang with his car.
The court declined to give the instruction, explaining, “A fender
bender accident from the rear by itself would not be sufficient to
provide a reasonable basis to even give the instruction.” Diaz
insists this was error because the passions of an ordinary
reasonable person could be aroused after being chased and
purposefully rear-ended.
Even assuming that were true, the trial court was not
required to give the requested instruction because there was
insufficient evidence showing Diaz actually, subjectively,
attempted to kill under the heat of passion. Diaz did not testify,
so there was no direct evidence of his state of mind. Nor was
there indirect evidence showing he was acting under the heat of
passion. To the contrary, Madrid, who was sitting next to Diaz in
the Mustang, gave no indication that Diaz exhibited any strong
emotion when Martinez chased and then rear-ended their vehicle.
Instead, according to Madrid, Diaz simply got out of the car and
started firing a gun. He then quickly returned to the vehicle, told
Madrid to drive, and threatened him to keep quiet, all of which
suggests Diaz was thinking rationally at the time. On this
record, even when viewed in the light most favorable to Diaz, no
10
reasonable juror could conclude he was “so inflamed that he . . .
would lose reason and judgment . . . .’ [Citation.]” (People v.
Thomas (2012) 53 Cal.4th 771, 813; see People v. Manriquez
(2005) 37 Cal.4th 547, 585 [a heat-of-passion instruction was not
required where there was no showing the defendant exhibited
anger, fury, or rage].)
Even if the court should have instructed the jury on heat-
of-passion attempted manslaughter, the error was harmless
under any standard of review. (People v. Watson (1956) 46 Cal.2d
818, 836 [more favorable outcome reasonably probable];
Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a
reasonable doubt].) “Error in failing to instruct the jury on a
lesser included offense is harmless when the jury necessarily
decides the factual questions posed by the omitted instructions
adversely to [the] defendant under other properly given
instructions.” (People v. Lewis (2001) 25 Cal.4th 610, 646.)
In People v. Wharton (1991) 53 Cal.3d 522 (Wharton), the
California Supreme Court held a failure to instruct that
provocation could occur over a considerable period of time was
harmless where the jury found the defendant committed murder
willfully, deliberately, and with premeditation. The court
reasoned that such a “state of mind, involving planning and
deliberate action, is manifestly inconsistent with having acted
under the heat of passion—even if that state of mind was
achieved after a considerable period of provocatory conduct—and
clearly demonstrates that defendant was not prejudiced by the
failure to give his requested instruction.” (Id. at p. 572.)
Numerous lower courts have applied Wharton to hold
harmless the failure to instruct on heat-of-passion manslaughter
where the defendant was convicted of willful, deliberate, and
11
premeditated murder or attempted murder. (See People v.
Graham (2021) 64 Cal.App.5th 827 (Graham); People v. Wang
(2020) 46 Cal.App.5th 1055, 1071–1072; People v. Franklin (2018)
21 Cal.App.5th 881, 894–895 (Franklin); People v. Peau (2015)
236 Cal.App.4th 823, 831 (Peau); People v. Speight (2014) 227
Cal.App.4th 1229, 1246.)
Here, the trial court instructed the jurors that if they found
Diaz guilty of attempted murder, they must decide whether he
acted willfully, deliberately, and with premeditation. The court
fully defined those terms and then instructed the jurors the
attempted murder was willful, deliberate, and premeditated if
“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 . . . .” The jury, in turn, found the allegation
true. As in Wharton, “[t]his state of mind, involving planning
and deliberate action, is manifestly inconsistent with having
acted under the heat of passion . . . and clearly demonstrates that
defendant was not prejudiced by the failure to give his requested
instruction.” (Wharton, supra, 53 Cal.3d at p. 572.)
Citing People v. Berry (1976) 18 Cal.3d 509 (Berry), and
People v. Ramirez (2010) 189 Cal.App.4th 1483 (Ramirez), Diaz
insists the jury’s finding that he acted willfully, deliberately, and
with premeditation does not necessarily render the error
harmless. In Berry, which was decided 15 years before Wharton,
the Supreme Court held a court prejudicially erred in failing to
instruct on heat-of-passion manslaughter. In doing so, the high
court rejected the argument that the error was harmless because
the jury convicted the defendant of first degree murder and the
12
instructions made passing and casual reference to heat of passion
and provocation for the purpose of distinguishing between first
and second degree murder. (Berry, at p. 518.)
The Ramirez court subsequently applied Berry (without
mentioning Wharton) and held a trial court prejudicially erred in
failing to instruct on heat-of-passion manslaughter, despite the
jury’s finding that the defendant acted willfully, deliberately, and
with premeditation. (Ramirez, supra, 189 Cal.App.4th at p.
1488.) Several courts have declined to follow Ramirez on the
basis that it is inconsistent with Wharton. (See, e.g., Graham,
supra, 64 Cal.App.5th 827; Peau, supra, 236 Cal.App.4th at
p. 831; Franklin, supra, 21 Cal.App.5th at p. 894.)
In Peau, the court attempted to reconcile the apparent
tension between Berry and Wharton. The court explained that
Berry “did not even mention that first degree murder must be
willful, deliberate, and premeditated. Instead, it focused only on
the fact that the instruction distinguishing between first and
second degree murder in that case ‘made passing reference to
heat of passion and provocation for the purpose of distinguishing
between’ the two types of murder. [Citation.] We think this
strongly suggests that the sole issue considered in Berry was
whether the error was harmless because the jury received some
instruction on the concepts of heat of passion and
provocation . . . .” (Peau, supra, 236 Cal.App.4th at pp. 831–832.)
In contrast, the issue in Wharton was “whether the error was
harmless because the jury found the murder was willful,
deliberate, and premeditated and such a finding was inconsistent
with a finding that the defendant acted in a heat of passion.”
(Id. at pp. 831–832.) The Peau court concluded the reasoning in
Wharton was directly on point in its case because the jury found
13
the murder was willful, deliberate, and premediated. (Peau, at
p. 831.)
We agree with Peau’s reading of Berry and Wharton.
Moreover, like that case, the circumstances here resemble
Wharton more closely than Berry. Accordingly, we conclude the
jury’s finding that the attempted murder was willful, deliberate,
and premeditated renders the failure to give a heat-of-passion
instruction harmless beyond a reasonable doubt.
III. Remand Is Necessary to Correct Sentencing Errors
A. The Court Erred By Imposing a Firearm
Enhancement and a 10-year Gang Enhancement
on Count 4
Diaz contends, and the Attorney General concedes, the trial
court erred by imposing a firearm enhancement on count 4,
possession of a firearm by a felon (§ 29800, subd. (a)(1)). We
agree. Diaz was not charged with, and the jury did not find true,
any firearm enhancement allegations in connection with count 4.
Moreover, section 12022.53, subdivision (a), enumerates the
predicate felonies to which a firearm enhancement may attach;
possession of a firearm by a felon is not one of them. Accordingly,
the court erred by imposing a 10-year firearm enhancement on
count 4.
Diaz additionally contends the court erred by imposing a
10-year gang enhancement on count 4. Once again, the Attorney
General concedes the point, and we agree with Diaz. A 10-year
gang enhancement applies only to violent felonies. (§ 186.22,
subd. (b)(1)(C).) Possession of a firearm by a felon is not a violent
felony. (See § 667.5, subd. (c).) The trial court instead should
14
have imposed an additional term of either two, three, or four
years.5 (§ 186.22, subd. (b)(1)(A).)
The parties agree, as do we, that the proper procedure is to
vacate the sentence and remand the case so the trial court may
exercise its sentencing discretion under section 186.22,
subdivision (b)(1)(A).
B. The Trial Court Must Impose a Sentence On Count
2
Diaz contends the trial court erred by failing to fully impose
a sentence on count 2. We agree.6
At sentencing, the court indicated it believed the sentence
on count 2 should be stayed pursuant to section 654, but it did
not orally impose a term for the crime or its enhancements. The
court’s minute order, however, indicates it imposed and then
stayed the mid-term of five years on count 2, and stayed all the
enhancements.
“[W]hen a trial court determines that section 654 applies to
a particular count, the trial court must impose sentence on that
count and then stay execution of that sentence.” (People v.
Alford, supra, 180 Cal.App.4th at p. 1466.) Moreover, “[t]o be
5 Contrary to the parties’ suggestions, for purposes of the
gang enhancement statute, a violation of section 29800,
subdivision (a)(1), does not become a serious felony by virtue of
the fact that it was gang related. (See People v. Briceno (2004) 34
Cal.4th 451, 465.)
6 We reject the Attorney General’s argument that Diaz
forfeited the issue by failing to object below. The purported error
resulted in an unauthorized sentence, which presents an
exception to the general forfeiture rules. (People v. Scott (1994)
9 Cal.4th 331, 354; People v. Alford (2010) 180 Cal.App.4th 1463,
1467–1468.)
15
effective, a sentence must be pronounced orally on the record and
in defendant’s presence.” (People v. McGahuey (1981) 121
Cal.App.3d 524, 530.) Here, the court did not orally impose a
sentence on count 2. Accordingly, on remand, the court must
orally impose a sentence on count 2, including any enhancements
that it declines to strike. It may then stay the sentence under
section 654.
C. The Trial Court Was Not Required to Strike the
Gang or Firearm Enhancements On Counts 1, 2,
and 3
Diaz argues the trial court erred by declining to strike
either the firearm or gang enhancements on counts 1, 2, and 3.
We disagree.
On counts 1, 2, and 3, the information alleged that Diaz
personally used a firearm (§ 12022.53, (b)), and personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)) in the
commission of the offenses. It further alleged that a principal did
the same (§ 12022.53, subds. (c), (e)(1)).
The prosecution seemingly abandoned the “principal”
enhancements at trial. Accordingly, the court instructed the jury
only that Diaz was charged with personally using and personally
and intentionally discharging a firearm during the commission of
the charged crimes. The court further instructed the jury that to
find the discharge enhancements true, “the defendant himself
must have intentionally discharged” a firearm. The court
directed the jury to “include a special finding on [these questions]
in your verdict using a form that will be supplied for that
purpose.”
16
Despite these instructions, the pre-printed verdict forms
only gave the jury the option of finding a principal personally
used or personally and intentionally discharged a firearm. The
jury nonetheless found the allegations true.7 The trial court then
imposed both firearm and gang enhancements on counts 1 and 3.8
A court may impose both a gang and a firearm
enhancement on a single count only if the defendant personally
used or discharged the firearm. (§ 12022.53, subd. (e)(2).) In all
other situations, the court must impose the enhancement that
provides for the greatest penalty or longest term of
imprisonment. (§ 12022.53, subd. (j).)
Diaz contends the trial court was required to strike either
the firearm enhancements or gang enhancements given the
verdict forms state the jury found only that a principal
discharged and used a firearm. The Attorney General urges us to
affirm because, despite the wording of the verdict forms, it is
clear the jury found Diaz personally used or discharged a firearm.
According to the Attorney General, the references to a “principal”
in the verdict forms were merely technical defects. We agree
with the Attorney General.
“ “ ‘A verdict is to be given a reasonable intendment and be
construed in light of the issues submitted to the jury and the
instructions of the court.” [Citations.]’ [Citations.] ‘The form of a
verdict is immaterial provided the intention to convict of the
crime charged is unmistakably expressed. [Citation.]’ [Citation.]
7 The jury found the allegation that a principal personally
and intentionally discharged a firearm in the commission of the
robbery (count 3) to be “not true.”
8 As discussed in the previous section, the trial court did not
address the count 2 enhancements at sentencing.
17
‘[T]echnical defects in a verdict may be disregarded if the jury’s
intent to convict of a specified offense within the charges is
unmistakably clear, and the accused’s substantial rights suffered
no prejudice. [Citations.]’ [Citation.]” (People v. Jones (1997) 58
Cal.App.4th 693, 710–711.)
People v. Trotter (1992) 7 Cal.App.4th 363, is instructive.
In that case, the information alleged the defendant personally
used a firearm in the commission of the charged offenses. The
trial court instructed the jury in accordance with the information,
but the pre-printed verdict forms stated the jury found true that
the defendant was merely “armed” with a firearm. (Id. at p. 369.)
After the jury was discharged, the trial court amended the
verdicts to state the defendant “personally used” a firearm.
On appeal, the defendant argued the trial court exceeded its
authority and the wording of the verdict forms was dispositive.
The Court of Appeal disagreed and affirmed, explaining this was
a “textbook example of clerical error.” (Id. at p. 370.)
The same is true here. The prosecution tried this case from
start to finish under the theory that Diaz was the shooter and
personally used a firearm during the robbery. At no point did the
prosecution argue or otherwise suggest he could be found guilty
under a vicarious liability theory. Nor did either party argue
that anyone else in the Mustang discharged, used, or even
possessed a firearm.9 Defense counsel, in fact, essentially
9 The prosecution presented evidence that Martinez initially
told police the driver of the Mustang was armed and shot him.
At trial, Martinez identified Diaz as the shooter and insisted he
was a passenger in the Mustang. Defense counsel did not
challenge that testimony.
18
conceded that Diaz was the shooter, and sought to convince the
jury he acted in self-defense or without intent to kill.
Consistent with the prosecution’s theory and the evidence
presented at trial, the court instructed the jury that it was
alleged only that Diaz personally used and discharged a firearm.
The court further explained that for those allegations to be true,
the jury must find Diaz “himself . . . discharged [the firearm]” or
used the firearm. The court did not instruct the jury on any
vicarious liability theories, either in connection with the
underlying offenses or the firearm enhancement allegations.
Under these circumstances, there is no doubt the jurors
found Diaz personally discharged and used a firearm. The
references to a “principal” in the pre-printed verdict forms were
merely technical errors that do not reflect the jury’s actual
verdict. The error, moreover, did not prejudice Diaz’s substantial
rights, as he was fully aware of the allegations against him and
had the opportunity to defend himself at trial. The court,
therefore, was not required to strike either the gang or firearm
enhancements on counts 1, 2, and 3.
D. The Trial Court Must Correct the Custody Credits
Diaz contends, and the Attorney General concedes, the trial
court miscalculated his credits for actual days in custody and
erroneously failed to award him worktime credit at 15 percent.
We agree. (See § 2933.1, subd. (a).) However, because we are
remanding the case for resentencing, there is no need to correct
the errors on appeal.
19
DISPOSITION
Diaz’s sentence is vacated. The case is remanded for
resentencing consistent with this opinion. In all other respects,
the judgment is affirmed.
OHTA, J. *
We Concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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