People v. Bronson CA2/2 ( 2021 )

Filed 3/30/21 P. v. Bronson CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300902
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA106148)
v.
JOSEPH JEREMY BRONSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Laura L. Laesecke, Judge. Affirmed and
remanded with directions.
Stephen Michael Vasil, 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, Noah P. Hill and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In an information filed by the Los Angeles District
Attorney’s Office, defendant and appellant Joseph Jeremy
Bronson was charged with one count of murder (Pen. Code, § 187,
subd. (a); count 1)1 and one count of attempted murder
(§§ 664/187, subd. (a); count 2). As to both counts, it was alleged
that defendant personally and intentionally discharged a firearm
and personally used a firearm pursuant to section 12022.53,
subdivisions (b) through (d).
Defendant pled not guilty. After trial, the jury found
defendant guilty of second degree murder and willful,
deliberated, premediated attempted murder. It also found true
the firearm enhancements as to both counts. The trial court
sentenced defendant to 72 years to life in state prison. He was
given 867 days of presentence custody credit.
Defendant timely appealed. On appeal, he argues: (1) the
trial court erred by failing to instruct the jury on heat of passion
voluntary manslaughter; (2) his conviction for premeditated
attempted murder should be reversed because the premeditated
enhancement was not pled in the accusatory pleadings; and (3) he
is entitled to one additional day of presentence custody credit.
We agree with the parties that defendant is entitled to one
additional day of presentence custody credit. In all other
respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
At around 4:00 p.m. on March 7, 2017, Maricela Polanco
Fernandez (Fernandez) was working the drive-thru line at the
Louis Burger on Atlantic Avenue in Long Beach. Defendant, who
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
was driving a burgundy BMW, was a customer in the drive-thru
line. Erika Flores (Flores) and her boyfriend Trevor McCrainey
(McCrainey) were on their way to Petco with their two dogs, who
were in the back of their Toyota Corolla, when they decided to
stop at Louis Burger to pick up some food. They pulled into the
drive-thru line and placed their order. Defendant’s BMW, which
had a license plate on it, was in front of them.
As McCrainey drove forward, he was distracted by one of
the dogs and picked his foot up off the break. The car rolled
forward and bumped into defendant’s BMW. McCrainey reversed
his car. Defendant exited his car and checked if it had any
damage. McCrainey said to defendant, “‘My bad. Are you good?
My bad, bro.’” Defendant responded, “‘Nah, fuck that’” and “‘On
gang,’” and then called McCrainey “ugly.” Defendant did not say
anything about any damage to his car nor did he ask McCrainey
for his driver’s license or insurance information. Defendant
returned to his car and drove up to the drive-thru window.
Fernandez could see the two men arguing. Defendant paid
for his food—French fries and a strawberry soda—and Fernandez
handed it to him. Defendant threw a water bottle at the Corolla
and then he threw his strawberry soda at the car. The soda hit
the front of the Corolla and some of the liquid spilled into the
driver’s side window, staining McCrainey’s T-shirt and pants.
Defendant exited the drive-thru lane, turned right onto
Atlantic Avenue and drove south. McCrainey drove up to the
drive-thru window, but he did not stop to get his food. Instead,
he followed defendant’s car onto Atlantic Avenue. The BMW
stopped at a red light at Atlantic Avenue and Broadway.
McCrainey drove up alongside defendant’s car, got out of his car,
and approached the driver’s side of defendant’s car. McCrainey
3
said to defendant, “‘Come on,’” “‘Get out of the car,’” and “‘Let’s
go.’” Defendant did not respond. While the light was still red,
defendant made a right turn onto Broadway, driving the wrong
way on the one-way street. McCrainey slammed his hands on the
BMW’s trunk as the car drove off. He got back into the Corolla.
Flores told him that they should go home so he could change his
clothes and they could then go to Petco. McCrainey made a
U-turn and started to drive home.
McCrainey made a left turn onto Third Street. He saw
defendant’s BMW and followed it into an alley, Liberty Court.
McCrainey was not yelling or making any gestures out the
window, and he did not have a weapon. Defendant stopped his
car in the middle of the alley; there was no room for McCrainey to
drive around so he stopped behind it. Defendant got out of his
car. He had a gun in his hand and pointed it at McCrainey, who
tried to put the car in reverse but put it in neutral by mistake.
McCrainey said, “‘Oh no. We gone.’” Defendant pulled the trigger
on the gun, but nothing happened. He cocked it back to put a
bullet in the chamber and began to shoot at McCrainey as he
walked toward the Corolla. When defendant reached the open
driver’s side window, he fired four shots at McCrainey, including
an execution-style shot to the back of McCrainey’s head.
While defendant was standing at the driver’s side window,
Flores was trying to shield McCrainey’s face with her foot.
Defendant pointed the gun at her and shot her in the leg through
the open window. He also shot Flores in the chest. Defendant
did not say anything to McCrainey or Flores. His gun eventually
ran out of bullets, and then he walked back to his car and drove
away.
4
Denise Kelch (Kelch) was on the balcony of her second-
story motel room when she heard gun fire. The balcony faced
Liberty Court. She saw defendant’s car and the Corolla in the
alley and saw defendant get out of his car and walk towards the
other car as he fired a gun. According to Kelch, defendant fired
at the windshield as he walked to the car, and he fired the final
shots as he stood at the driver’s side door. Defendant then
quickly walked back to his car. He threw the gun inside the car,
got in, and drove straight down the alley towards Third Street.
Kelch assisted Flores. She called an ambulance and stayed with
her until the police and paramedics arrived.
McCrainey was slumped over in the driver’s seat,
unresponsive; he died at the scene. Flores had injuries to her
right breast, her side, and her left leg. The paramedics
transported her to the hospital.
Deputy Medical Examiner Job Augustine performed an
autopsy on McCrainey. The manner of death was homicide, and
the cause of death was three penetrating gun wounds to
McCrainey’s head. McCrainey suffered a fourth, nonfatal
gunshot wound to his right upper lip.
Defendant was arrested on April 4, 2017. During a search
of his home, the police found the license plates for defendant’s car
on top of a pile of clothes.
II. Defense Evidence
Defendant did not testify or present any witnesses.
5
DISCUSSION
I. No Instructional Error
Defendant contends that the trial court erred in failing to
instruct the jury sua sponte on heat of passion voluntary
manslaughter.2
A. Relevant law
A trial court must instruct on lesser included offenses when
there is substantial evidence the defendant is guilty only of the
lesser offense. (People v. Vargas (2020) 9 Cal.5th 793, 827.)
“Voluntary manslaughter, a lesser included offense of murder, is
defined as the unlawful killing of a human being without malice.”
(Ibid., citing § 192 & People v. Rios (2000) 23 Cal.4th 450, 465.)
An instruction on voluntary manslaughter is required where
there is substantial evidence that the defendant acted in the heat
of passion. A heat of passion killing “is one caused by an
unconsidered reaction to provocation rather than the result of
rational thought.” (People v. Vargas, at p. 828.) “If reason ‘“‘was
obscured or disturbed by passion’”’ to so great a degree that an
ordinary person would ‘“‘act rashly and without deliberation and
reflection,’”’ [then it can be said that the] killing arose from
‘“‘passion rather than from judgment.’”’ [Citation.]” (Id. at
p. 828; accord People v. Landry (2016) 2 Cal.5th 52, 97 [“heat of
passion sufficient to reduce murder to manslaughter ‘exists only
where the “killer’s reason was actually obscured as the result of a
strong passion . . .”’”].)
“‘[T]he anger or other passion must be so strong that the
defendant’s reaction bypassed his thought process to such an
2 The jury was instructed on voluntary manslaughter based
on an imperfect self-defense.
6
extent that judgment could not and did not intervene.’
[Citation.]” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 649.)
“‘“‘[I]f sufficient time has elapsed for the passions of an ordinarily
reasonable person to cool, the killing is murder, not
manslaughter.’”’ [Citation.]” (Ibid.; People v. Nelson (2016) 1
Cal.5th 513, 539 [“it is not sufficient that a person ‘is provoked
and [then] later kills’”].) “‘“The provocation which incites the
defendant to homicidal conduct in the heat of passion must be
caused by the victim [citation], or be conduct reasonably believed
by the defendant to have been engaged in by the victim.”’
[Citation.]” (People v. Beck and Cruz, supra, at p. 649.) Planned
revenge does not satisfy the provocation requirement. (People v.
Souza (2012) 54 Cal.4th 90, 115–117; People v. Breverman (1998)
19 Cal.4th 142, 163 [the passion aroused can be any extreme
emotion “other than revenge”].)
In other words, a heat of passion theory of manslaughter
has an objective and subjective component. (People v. Moye
(2009) 47 Cal.4th 537, 549 (Moye).) “‘“To satisfy the objective or
‘reasonable person’ element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to
‘sufficient provocation.’” [Citation.]’ [Citation.]” (Moye, supra, at
p. 549.) “The provocative conduct by the victim may be physical
or verbal, but the conduct must be sufficiently provocative that it
would cause an ordinary person of average disposition to act
rashly or without due deliberation and reflection.” (Id. at p. 550.)
“To satisfy the subjective element of this form of voluntary
manslaughter, the accused must be shown to have killed while
under ‘the actual influence of a strong passion’ induced by such
provocation.” (Ibid.)
7
Normally, a heat of passion instruction supplements a self-
defense instruction. Nonetheless, a heat of passion “instruction
is not always warranted.” (People v. Millbrook (2014) 222
Cal.App.4th 1122, 1138.)
We review this issue de novo. (People v. Souza, supra, 54
Cal.4th at p. 116.)
B. Analysis
Applying these legal principles, we conclude that the trial
court did not err; it did not have a sua sponte duty to instruct on
heat of passion voluntary manslaughter. There was no evidence
of either the subjective or objective element of heat of passion
voluntary manslaughter. Certainly the shooting occurred after a
skiff escalated between defendant and McCrainey. But, instead
of driving away or seeking help, defendant trapped McCrainey in
an alley before exiting his vehicle, walking to McCrainey’s car,
and then firing his weapon multiple times at both McCrainey and
Flores.
Urging us to reverse, defendant argues that McCrainey’s
behavior would have “cause[d] a reasonable person to act rashly
and without due deliberation and reflection as a result of fear,
anger, anxiety, confusion, or panic, or some other overwhelming
emotion.” We are not convinced.
People v. Johnston (2003) 113 Cal.App.4th 1299, 1312
(Johnston) is instructive. In that case, the defendant armed
himself with a knife and went to his girlfriend’s house to speak
with her. He arrived early in the morning and pounded on the
door, walls, and windows, demanding that she come out. Her
mother told the defendant to leave. Enraged, he shouted
obscenities, threatened to kill the entire family, and refused to
leave. He repeatedly challenged the ex-girlfriend’s brothers to
8
come out and fight. Unarmed, one brother exited the house and a
fight ensued. During the fight, the defendant pulled out a knife
and repeatedly stabbed the brother, killing him. (Johnston,
supra, 113 Cal.App.4th at p. 1302.)
Despite being instructed on a host of lesser included
crimes, the jury convicted the defendant of second degree murder.
(Johnston, supra, 113 Cal.App.4th at p. 1302.) But the trial court
reduced the crime to voluntary manslaughter based on sudden
quarrel/heat of passion. (Ibid.) The appellate court reversed and
reinstated the murder conviction. (Id. at p. 1303.) In so doing,
the appellate court reasoned: “We may assume that defendant
did not travel to his ex-girlfriend’s residence for the purpose of
committing a homicide, even though he armed himself with a
knife before going there. But it was he who instigated the fight
with [the brother] by creating a loud disturbance at the
residence, cursing the mother of the victim and girlfriend and,
most particularly, challenging [the brother] to come out and fight.
Having done that, he cannot be heard to assert that he was
provoked when [the brother] took him up on the challenge.
Defendant was ‘culpably responsible’ for the altercation.”
(Johnston, supra, 113 Cal.App.4th at p. 1313.)
Similarly, here the evidence was undisputed that defendant
said that McCrainey was “ugly” and then threw a water bottle
and cup of soda at McCrainey’s car. McCrainey took defendant’s
behavior as an insult and responded “in resentment.” (Johnston,
supra, 113 Cal.App.4th at p. 1312.) Defendant’s aggressive and
taunting behavior may not have justified McCrainey’s chase after
defendant or his challenge to fight, but “neither does
[McCrainey’s behavior] justify or mitigate defendant’s use of
deadly force” (Johnston, supra, at p. 1313), particularly when
9
defendant armed himself, giving him the upper hand in any
potential fight (id. at p. 1312).
Furthermore, there was insufficient evidence that
defendant actually acted in the heat of passion (subjective
element) or that a reasonable person would have acted in the
heat of passion (objective element) in these circumstances. There
was little to no evidence in the record that defendant subjectively
acted under the heat of passion. He offered no evidence that he
believed the shooting was necessary to defend his life, that he
fired out of fear, or that he appeared fearful, and no witnesses
testified about his demeanor. (See Moye, supra, 47 Cal.4th at
p. 557 [noting that defendant provided no direct testimony to
support an inference he subjectively harbored strong passions
during killing]; People v. Lee (1999) 20 Cal.4th 47, 60 [“Adequate
provocation and heat of passion must be affirmatively
demonstrated”].) While the record showed that defendant ran a
red light and drove the wrong way down a one-way street after
McCrainey confronted him at the traffic light, this evidence is
thin at best. Indeed, if defendant had been in fear for his safety,
he could have driven to the police station, which was just seven
or eight blocks away, to get help. Instead, he chose to leave a
busy public street where he was relatively safe and drive down
an isolated alley where he could (and did) confront McCrainey
without any witnesses. And defendant parked his car in the alley
in such a manner to ensure that McCrainey could not escape.
These actions demonstrate that defendant had a plan to trap
McCrainey and confront him, not that defendant acted in the
heat of passion.
Moreover, defendant calmly approached the Corolla,
shooting through the windshield three times. McCrainey did not
10
brandish a weapon or attempt to defend himself. When
defendant reached the open driver’s side window, he fired four
shots at McCrainey, including an execution-style shot to the back
of McCrainey’s head. He did not wildly fire at McCrainey or
Flores; rather, he fired at vital areas of both victims’ bodies.
Again, this behavior overwhelmingly demonstrated that
defendant was not acting out of “fear, anger, anxiety, confusion,
or panic, or some other overwhelming emotion.” Rather, the
evidence shows that defendant knew exactly what he was doing.
(See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295
[“The manner of killing—a close-range shooting without any
provocation or evidence of a struggle—. . . supports an inference
of premeditation and deliberation”]; People v. Koontz (2002) 27
Cal.4th 1041, 1082 [firing at vital area at close range supported
finding of premeditation and deliberation]; People v. Mayfield
(1997) 14 Cal.4th 668, 767, overruled in part on other grounds in
People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2 [shooting victim
in the face supports inference of preexisting intent to kill].)
There was also insufficient evidence that defendant’s
shooting of McCrainey and Flores was objectively reasonable.
Defendant may well have been concerned about, or angered by
McCrainey’s behavior, but McCrainey never threatened to harm
defendant or brandished any weapons. McCrainey’s act of
getting out of his car and saying, “Let’s go” was not sufficient
provocation to satisfy the objective standard. (See, e.g., People v.
Lucas (1997) 55 Cal.App.4th 721, 739 [insufficient provocation
where driver laughed and a backseat passenger looked at him
“‘real dirty, like he wanted to fight or something’”]; People v.
Manriquez (2005) 37 Cal.4th 547, 585 [insufficient evidence of
11
provocation where victim repeatedly called defendant a “mother
fucker” and taunted him to use his weapon].)
It follows that we reject defendant’s argument that the trial
court’s failure to instruct on heat of passion voluntary
manslaughter violated his constitutional rights.
C. Harmless error
Assuming arguendo that it was error for the trial court to
have failed to instruct the jury on a heat of passion theory of
voluntary manslaughter in addition to the instructions that were
given on imperfect self-defense manslaughter, that error was
harmless under any standard. (People v. Watson (1956) 46 Cal.2d
818, 836; Chapman v. California (1967) 386 U.S. 18, 24.)
It is reasonable to assume that the jury considered and
rejected any theory that defendant lacked malice when it
declined to convict defendant of imperfect self-defense voluntary
manslaughter. “Once the jury rejected defendant’s claims of
reasonable and imperfect self-defense, there was little if any
independent evidence remaining to support his further claim that
he killed [McCrainey] in the heat of passion, and no direct
testimonial evidence from defendant himself to support an
inference that he subjectively harbored such strong passion, or
acted rashly or impulsively.” (Moye, supra, 47 Cal.4th at p. 557.)
The jury necessarily considered and rejected the notion that
defendant was in imminent danger or that use of deadly force
was necessary. (CALJIC No. 5.17.) Instead, the jury found,
based upon the evidence, that defendant intentionally and
methodically discharged his gun several times to shoot and kill
McCrainey.
Because the jury acquitted defendant of first degree murder
under theories of lying in wait and premeditation and instead
12
convicted him of second degree murder, defendant suggests that
the jury might have found that he acted in the heat of passion
had that instruction been given. We are not convinced. Unlike
the cases cited by defendant, as set forth above, there was no
evidence at trial regarding defendant’s state of mind. (Compare
In re Hampton (2020) 48 Cal.App.5th 463, 480–481 [the
defendant testified that he fired when the victim lunged at him
and did so without thinking because he was scared].)
Defendant further argues that the failure to give this
instruction was prejudicial because it embodied a defense theory
of the case. After all, defense counsel “argued that [defendant’s]
fear, anxiety, or stress was provoked by McCrainey’s pursuit and
caused his emotions to overwhelm his judgment, leading him to
lose his self-control.”
But that was just one theory that defense counsel argued
counsel did not “structure[] the entire defense around one
element,” and the failure to instruct on heat of passion voluntary
manslaughter did not “strike[] at the heart of the defense.”
(People v. Vasquez (2018) 30 Cal.App.5th 786, 799.)
Finally, we note that defendant immediately fled the scene
after the shooting and removed the license plates from his car.
This is strong circumstantial evidence showing consciousness of
guilt. (People v. Mason (1991) 52 Cal.3d 909, 941.)
II. Failure to Allege Premeditation and Deliberation in the
Attempted Murder Charge
Defendant argues that the life sentence imposed for
attempted murder must be reversed because the felony complaint
and information failed to allege premeditation and deliberation
pursuant to section 664, subdivision (a).
13
A. Relevant facts
The felony complaint and the information charged
defendant with attempted murder in count 2. Neither included
an allegation that the attempted murder was willful, deliberate,
and premeditated.
The trial court and the parties had several discussions
concerning the jury instructions during the trial. At one point,
the trial court provided counsel with a “working copy” of the
instructions. During the next jury instruction conference, the
trial court asked the parties if they wanted to have “any other
general discussions of instructions?”, noting that both attorneys
were not familiar with the CALJIC instructions, which the trial
court intended to use. The trial court commented, “I consider this
to be a basic packet of CALJIC.” Defense counsel responded that
he and cocounsel would look at the instructions that day. At the
conclusion of the discussion, the trial court remarked: “We will
make sure we go over the jury instructions in the more final form
tomorrow afternoon.” Neither party posed any questions or
expressed any concerns about the instructions.
The following day, the parties went through the individual
instructions. With respect to the instruction on the attempted
murder charge, the trial court indicated that it would instruct
with CALJIC No. 8.66 (attempted murder), CALJIC No. 8.67
(willful, deliberate, and premeditated attempted murder), and
CALJIC No. 3.31 (concurrence of act and specific intent). In fact,
the trial court stated, “So it’s attempted murder and
premeditation and deliberation, which is the special allegation on
attempted murder.” Defense counsel did not object to the
characterization of the attempted murder charge, and when the
trial court asked if there were any other discussions they needed
14
to have about the instructions, defense counsel responded, “No,
your Honor.”
Without objection, the trial court instructed the jury with
CALJIC No. 8.67 as follows: “It is also alleged in count 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.
“‘Willful’ means intentional.
“‘Deliberate’ relates to how a person thinks, and means
formed or arrived at or determined upon as a result of careful
thought and weighing of considerations for and against the
proposed course of action.
“‘Premeditated’ relates to when a person thinks and means
considered beforehand.
“A person premeditates by deliberating before taking
action.
“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 an attempt to commit willful, deliberate, and
premeditated murder.
“The law does not undertake to measure in units of time
the length of the period during which the thought must be
pondered before it can ripen into an intent to kill which is truly
deliberate and premeditated. The time will vary with different
individuals and under varying circumstances.
“The true test is not in the duration of time, but rather the
extent of the reflection. A cold, calculated judgment and decision
15
may be arrived at in a short period of time, but a mere
unconsidered and rash impulse, even though it includes an intent
to kill, is not deliberation and premeditation.
“To constitute willful, deliberate, and premeditated
attempted murder, the would-be slayer must weigh and consider
the question of killing and the reasons for and against such a
choice and, having in mind the consequences, decides to kill and
makes a direct but ineffectual act to kill a[nother] human being.
“The People have the burden of proving the truth of this
allegation. If you have a reasonable doubt that it is true, you
must find it to be not true.
“You will include a special finding on that question in your
verdict using a form that will be supplied for that purpose.”
After the case was submitted to the jury, the trial court
stated, “My understanding is that both sides have looked at the
verdict forms and given your approval.” Defense counsel and the
prosecutor approved of the forms.
The jury found true the allegation that the attempted
murder was committed willfully, deliberately, and with
premeditation. Without objection, the trial court sentenced
defendant to a consecutive life term (plus a 25-year firearm
enhancement) on the attempted murder count.
B. Forfeiture
Pursuant to People v. Houston (2012) 54 Cal.4th 1186(Houston), defendant has forfeited this objection.
In Houston, the defendant was charged with, among other
crimes, 10 counts of attempted murder. (Houston, supra, 54
Cal.4th at p. 1226.) The charging indictment failed to allege that
the attempted murders were deliberate and premeditated. (Ibid.)
16
But, the issue came up three times during trial without objection
from the defense.
The first time was during presentation of the defense case.
The trial court presented the parties with a preliminary draft of
the verdict forms, indicating that the jury would be asked to
determine if the attempted murders were willful, deliberate, and
premeditated. The trial court stated that it believed that that
was the prosecution’s theory and therefore findings on that issue
would increase the defendant’s sentence to life imprisonment.
The trial court asked the parties if its understanding was correct.
Defense counsel did not object. (Houston, supra, 54 Cal.4th at
p. 1226.)
The second time was approximately a week later when the
trial court announced it would submit verdict forms on the theory
of premeditated attempted murder. Again, defense counsel did
not object. (Houston, supra, 54 Cal.4th at p. 1226.)
Last, after the close of evidence, the trial court instructed
the jury. It defined attempted murder and told the jury that if it
found that the defendant had committed attempted murder, the
jury was to determine if the attempted murder was willful,
deliberate, and premeditated. Again, defense counsel did not
object to use of those instructions. (Houston, supra, 54 Cal.4th at
p. 1226.)
Ultimately, the jury found that the 10 attempted murders
had been willful, deliberate, and premeditated. (Houston, supra,
54 Cal.4th at pp. 1191, 1226.)
On appeal, the defendant asserted that the findings had to
be set aside. He urged that his “due process right to fair notice of
the allegations that [would] be invoked to increase” his
punishment had been violated (Houston, supra, 54 Cal.4th at
17
p. 1227) because the indictment failed to comply with the
pleading requirements of section 664, subdivision (a). (Houston,
supra, at pp. 1225–1229.) The California Supreme Court rejected
that contention. After reviewing the three instances during trial
in which the defense had been informed that the jury would be
called upon to determine whether the attempted murders were
willful, deliberate, and premeditated, the Houston court
concluded: “Had defendant raised a timely objection to the jury
instructions and verdict forms at any of these stages of the trial
on the ground that the indictment did not allege that the
attempted murders were deliberate and premeditated, the court
could have heard arguments on whether to permit the prosecutor
to amend the indictment. [Citation.] If the trial court was
inclined to permit amendment, defendant could have requested a
continuance to permit him to prepare a defense. [Citation.] On
the facts here, defendant received adequate notice of the sentence
he faced, and the jury made an express finding that the
attempted murders were willful, deliberate, and premeditated. A
timely objection to the adequacy of the indictment would have
provided an opportunity to craft an appropriate remedy. Because
defendant had notice of the sentence he faced and did not raise
an objection in the trial court, he has forfeited this claim on
appeal. [Citation.]” (Houston, supra, 54 Cal.4th at pp. 1227–
1228.)
The same reasoning applies here. Defendant did not object
to either the trial court’s instruction on the attempted murder
count or the verdict form, which required the jury to decide
whether the allegation that the attempted murder was willful,
deliberate, and premeditated was true. (People v. Toro (1989) 47
Cal.3d 966, 976, fn. 6 (Toro) [“An objection to jury verdict forms is
18
generally deemed waived if not raised in the trial court”],
disapproved on other grounds in People v. Guiuan (1998) 18
Cal.4th 558, 568, fn. 3; People v. Bolin (1998) 18 Cal.4th 297, 330
[“We find no objection of record to the form of the verdict either at
the time the court proposed to submit it or when the jury
returned its finding. The issue is therefore waived”].) If
defendant had objected to the jury instruction or the verdict form,
the trial court could have considered whether to allow the
prosecutor to amend the information.
Furthermore, defendant did not object when the verdict on
the attempted murder count was announced or when the jury
was polled on its verdicts. He also did not object when the trial
court sentenced him on the attempted murder count.
Under these circumstances, defendant cannot now
complain of a violation of his constitutional right to notice.
(Houston, supra, 54 Cal.4th at pp. 1227–1228; People v. Bright
(1996) 12 Cal.4th 652, 671 [“where defendant failed to object at
trial to the adequacy of the notice he received, any such objection
is deemed waived”], overruled on another ground in People v. Seel
(2004) 34 Cal.4th 535, 550, fn. 6; People v. Valenzuela (2011) 199
Cal.App.4th 1214, 1237–1238 [defense consent to inclusion of
section 190, subdivision (d), allegation without amendment of the
information forfeited claim of inadequate notice].)
Urging us to reverse, defendant argues that his case is
distinguishable from Houston because he “did not receive
adequate notice that the prosecution would seek to use the
premeditation enhancement to increase his sentence for an
attempted murder conviction.” We disagree. Defendant’s case is
not materially distinguishable from Houston. If the People, in
response to a timely defense objection, had filed another
19
information with the required allegations, defendant would
simply have been arraigned on the new pleading. The new
allegations would have been read to him, but there is no
requirement that he be informed of their potential effect on his
sentence. (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012)
Pretrial Proceedings, §§ 252, 257, pp. 516–517, 522.)
Defendant’s reliance upon People v. Arias (2010) 182
Cal.App.4th 1009 (Arias) to support a contrary conclusion is
misplaced in light of the subsequent Houston decision. In Arias,
the defendant was charged with two counts of attempted murder.
The information did not allege that the attempted murders were
willful, deliberate, and premeditated. Nonetheless, the trial
court instructed the jury that if it convicted the defendant of the
attempted murders, it was to determine whether those crimes
were done willfully and with premeditation and deliberation.
The jury convicted the defendant of two “‘first degree attempted
murder[s],’” and the trial court imposed a life term for those
convictions. (Arias, supra, 182 Cal.App.4th at p. 1017.)
On appeal, the defendant asserted that his life sentences
were unauthorized and imposed in violation of due process
because the prosecution failed to allege, as required by section
664, subdivision (a), that the attempted murders were committed
willfully, deliberately, and with premeditation. The Court of
Appeal agreed, rejecting the People’s argument that the
defendant had forfeited his objection by failing to raise the point
below. (Arias, supra, 182 Cal.App.4th at pp. 1017–1020.)
The Houston court found that it “need not and [did] not
decide whether the Arias court erred in ruling that the defendant
there did not forfeit his claim that the [information] was
inadequate.” (Houston, supra, 54 Cal.4th at p. 1229.) Instead,
20
Houston distinguished Arias: “The Arias jury was instructed that
if it found the defendant guilty of attempted murder, it must
determine whether the attempted murder was willful, deliberate,
and premeditated, and the defendant did not object to that
instruction. But it is unclear when the trial court issued its
proposed jury instructions and verdict forms to the parties and
whether this issue was discussed. In contrast, the trial court
here [in Houston] actually notified defendant of the possible
sentence he faced before his case was submitted to the jury, and
defendant had sufficient opportunity to object to the indictment
and request additional time to formulate a defense. In addition,
the jury was properly instructed and made an express finding
that the attempted murders were willful, deliberate, and
premeditated. On these facts, we conclude that defendant
forfeited his claim that the indictment did not comply with
section 664.” (Houston, supra, 54 Cal.4th at p. 1229.)
Houston’s observations on Arias apply equally to this case.
As set forth above, defendant was on notice, by virtue of the jury
instruction conference and the trial court’s questioning of counsel
regarding the verdict forms, that the prosecution’s theory of the
case was that the attempted murder was willful, deliberate, and
premeditated. Defendant never objected. Moreover, the jury
here expressly found defendant guilty of willful, deliberate, and
premeditated attempted murder whereas in Arias the jury
convicted the defendant of “first degree attempted murder,” a
crime which does not exist.
C. Informal amendment doctrine
Even if defendant had not forfeited this objection, we would
still reject it because, contrary to defendant’s assertion, the
21
circumstances support application of the informal amendment
doctrine.
“The ‘Penal Code permits accusatory pleadings to be
amended at any stage of the proceedings “for any defect or
insufficiency.”’” (People v. Sawyers (2017) 15 Cal.App.5th 713,
720.) “California law does not attach any talismanic significance
to the existence of a written information. Under [the informal
amendment] doctrine, a defendant’s conduct may effect an
informal amendment of an information without the People
having formally filed a written amendment to the information.”
(People v. Sandoval (2006) 140 Cal.App.4th 111, 133; see, e.g.,
People v. Whitmer (2014) 230 Cal.App.4th 906, 919–920 [relying
on the doctrine in upholding a conviction on a count not written
in the information where the defendant did not object to
instructions on that count].) Of course, the informal amendment
doctrine “applies only when a defendant had reasonable notice of
a sentence enhancement allegation despite an incomplete
pleading.” (People v. Sawyers, supra, at p. 723.)
Here, based on the conferences about the jury instructions,
the actual instructions given to the jury, and the verdict forms,
defendant had reasonable and ample notice that he was facing a
willful, deliberate, and premeditated enhancement on the
attempted murder. (People v. Sawyers, supra, 15 Cal.App.5th at
p. 721 [“‘“The proceedings in the trial court may constitute an
informal amendment of the accusatory pleading, when the
defendant’s conduct or circumstances created by him amount to
an implied consent to the amendment”’”].) We can infer that the
information was amended to allege that defendant was facing
willful, deliberate, and premeditated attempted murder. (Ibid.)
22
People v. Anderson (2020) 9 Cal.5th 946 is distinguishable.3
In that case, the Attorney General acknowledged that the
information did not satisfy the applicable statutory pleading
requirements, but argued that because the defendant failed to
object to the jury instructions or verdict forms submitting the
challenged enhancements to the jury, he impliedly consented to
an informal amendment of the information. (Id. at pp. 957–958.)
Our Supreme Court was not convinced, noting that the appellate
“record [did] not reveal precisely how” those enhancements were
presented to the jury in instructions and verdict forms. (Id. at
p. 958.) All the court knew was that defense counsel did not
object to either the instructions or the verdict forms. (Ibid.)
In contrast, the appellate record in this case demonstrates
more than just a failure to object by defense counsel.4 (People v.
Anderson, supra, 9 Cal.5th at p. 960.) Rather, defense counsel
participated in multiple conferences with the prosecutor and the
3 As pointed out by defendant in his reply brief, the People do
not discuss People v. Anderson in their respondent’s brief.
4 For the same reason, Arias, supra, 182 Cal.App.4th 1009 is
distinguishable. In that case, the Court of Appeal declined to
apply the informal amendment doctrine because of “the absence
of anything in the record showing an amendment.” (Id. at
p. 1021.) As discussed, the appellate record here demonstrates
implied consent to an amendment. Thus, it does not matter that
“the defense had no apparent reason to consent to one.” (Ibid.;
compare Toro, supra, 47 Cal.3d at pp. 976–977 [the defendant’s
failure to object on notice grounds to the inclusion of a lesser
related offense on the verdict form amounted to implied consent
to treat the information as informally amended to include the
lesser offense, particularly because the defendant derived a
benefit from the submission of the lesser offense to the jury].)
23
trial court regarding the instructions and verdict form. Thus,
there is no basis for us to conclude that “the drafting of the
instructions and verdict forms may have simply been a mistake.”
(Ibid.)
D. No ineffective assistance of counsel
Defendant argues that if we find that the instant claim is
forfeited, which we do, then we should find defense counsel’s
performance was ineffective in violation of the Sixth Amendment.
To establish such a violation, defendant must show that counsel’s
representation fell below an objective standard of reasonableness,
and there is a reasonable probability that, but for the error, a
determination more favorable to defendant would have resulted.
(Strickland v. Washington (1984) 466 U.S. 668, 687–688; People
v. Ledesma (1987) 43 Cal.3d 171, 216–218.)
Defendant cannot establish that he would have received a
more favorable result had defense counsel objected to either the
jury instruction or verdict form. Rather, it is evident that the
trial court would have likely allowed the prosecution to amend
the information to allege the willful, deliberate, and premeditated
enhancement. After all, it instructed the jury on attempted
willful, deliberate, and premeditated attempted murder with
CALJIC No. 8.67. Given that the trial court believed that the
instruction was warranted by the evidence, it is highly likely that
it would have allowed the prosecution to amend the information.
And, it is well-settled that the trial court could have allowed the
amendment at any time during the proceedings. (People v.
Sawyers, supra,15 Cal.App.5th at p. 720; see also § 1009 [court
may permit amendment of an information for any defect or
insufficiency at any stage of the proceedings]; People v. Arevalo-
Iraheta (2011) 193 Cal.App.4th 1574, 1580–1581 [a court may
24
allow amendment of an accusatory pleading at any time up to
and including the close of trial so long as there is no prejudice to
the defendant].)
E. Harmless error
Even if defendant had not forfeited this objection and the
trial court had erred in allowing him to be convicted of
premeditated and deliberate attempted murder when the
accusatory pleading did not so allege, we would still affirm the
conviction. Any alleged error was harmless.5 (People v.
Anderson, supra, 9 Cal.5th at pp. 956–957, 963–964.)
5 Relying upon People v. Mancebo (2002) 27 Cal.4th 735, 749
(Mancebo), defendant argues that because his due process right
to notice was violated, we should forgo a harmless error analysis.
We disagree. In Mancebo, the court interpreted our “One Strike”
law (§ 667.61) and held that an enhancement had to be stricken
because it was never pled, even though the elements necessary to
establish it were implicit in the information and found by the
jury. (Mancebo, supra, at pp. 752–753.) Subsequent cases have
refused to extend Mancebo’s analysis to other sentencing
enhancements. (See, e.g., People v. Riva (2003) 112 Cal.App.4th
981, 1002–1003, disapproved on other grounds in People v.
Anderson, supra, 9 Cal.5th at pp. 956–957; People v. Perez (2015)
240 Cal.App.4th 1218, 1227.) In addition, in Mancebo, the
challenged enhancement did not arise until the sentencing
hearing. (Mancebo, supra, at p. 745.) In contrast, here the issue
arose repeatedly during discussions regarding the jury
instructions and verdict form. Thus, “[t]he complete lack of
notice . . . is not present in the instant case, and a different
standard for assessing prejudice applies here.” (People v. Garcia
(1998) 63 Cal.App.4th 820, 833; see also People v. Anderson,
supra, at p. 957 [the question of whether a pleading is adequate
is separate from the question of whether a pleading defect
prejudiced the defendant].)
25
Here, defendant points to nothing he would have done
differently with respect to his defense had the information
contained the section 664, subdivision (a), allegation. His
defense, as demonstrated by defense counsel’s closing argument,
pertained only to count 1. Counsel focused on the lesser included
offense of voluntary manslaughter, urging the jury to find that
defendant acted out of an actual but unreasonable belief that he
needed to defend against imminent peril to life or great bodily
injury. Defense counsel did not address the attempted murder
charge at all during his closing, let alone the premeditation
allegation with respect to that count. And counsel did not move
to reopen the case or request a continuance in light of the
proposed instructions, the verdict forms, or the prosecutor’s
closing argument. (See People v. Memro (1995) 11 Cal.4th 786,
869 [“If the prosecution’s felony-murder theory surprised
defendant, he could have moved to reopen the taking of evidence
so as to present a defense against it”]; People v. Seaton (2001) 26
Cal.4th 598, 641 [“defendant never objected to the lack of notice
at trial, nor did he seek a continuance to prepare sufficiently to
respond to the theory”].)
In other words, any alleged deficiency in the information
simply did “‘not prejudice a substantial right of the defendant
upon the merits.’” (§ 960; see People v. Peyton (2009) 176
Cal.App.4th 642, 659 [variance in pleadings not regarded as
material unless it is of such substantive character as to mislead
accused in preparing defense]; People v. Paul (1978) 78
Cal.App.3d 32, 43–44 [error in failing to allege overt act not
prejudicial where defendant was fully aware of all overt acts, had
benefit of discovery, and was aware of evidence against him];
People v. McCurdy (1958) 165 Cal.App.2d 592, 598 [claim of
26
defective pleading rejected under section 960 where the
defendant failed to show that his defense was in any way
prejudiced by form of information]; People v. Thompson (1948) 85
Cal.App.2d 261, 263–264 [no prejudice under section 960 where
the defendant was informed of nature of charges through the
grand jury transcript, and any defect in form of pleading, which
reflected words of statute, could not have misled him].)
III. One Additional Day of Custody Credit
Defendant contends that the trial court erred in calculating
his presentence custody credits, by awarding him 867 days of
presentence custody credit when he should have received 868
days. The People agree.
Pursuant to section 2900.5, subdivision (a), a defendant
convicted of a felony is entitled to credit against a state prison
term for actual time spent in custody before commencement of
the prison sentence, including the day of sentencing. (§ 2900.5,
subd. (a); People v. Smith (1989) 211 Cal.App.3d 523, 526.)
Generally, the time credited includes the date of arrest, the date
of sentencing, and every day in between. (People v. Smith, supra,
at pp. 525–526.)
Here, defendant was arrested on April 4, 2017, and he was
sentenced on August 18, 2019. That time span is 868 days. The
trial court, however, awarded defendant only 867 days of
presentence custody credit. Accordingly, defendant is entitled to
one additional day of actual custody credit. On remand, we direct
the trial court to amend the abstract of judgment to reflect the
correct presentence custody credit of 868 actual days.
27
DISPOSITION
The matter is remanded to the trial court with directions to
amend the abstract of judgment to reflect 868 days of presentence
custody credit. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
28