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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

RAYMOND CORDOVA, 

 Defendant and Appellant. 

 E058239 

 (Super.Ct.No. FVA1100476) 

 OPINION 

 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. 
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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. 
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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. 
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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. 
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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. 
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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 
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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 
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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 
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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. 
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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 
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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 
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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, 
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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. 
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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. 
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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). 
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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.