Filed 5/30/24 P. v. Jimenez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAIR JIMENEZ,

Defendant and Appellant.

 B323995

 (Los Angeles County

 Super. Ct. No. BA481675)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Terry A. Bork, Judge. Affirmed as modified.

Aurora Elizabeth Bewicke, 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, Wyatt E. Bloomfield and William H. 

Shin, Deputy Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

A jury found defendant Jair Jimenez guilty of attempted 

murder (Pen. Code1, §§ 664, 187, subd. (a); count 3) and assault 

with a semiautomatic firearm (§ 245, subd. (b); count 4). It also 

found allegations that defendant personally used a firearm in the 

commission and attempted commission of the above offenses 

(§ 12022.5, subd. (a)) to be true.

On appeal, defendant seeks to vacate his sentencing 

enhancement for count 3 on the grounds that the second 

amended information failed adequately to allege the personal use 

of a firearm enhancement for that count.

2 Defendant also 

contends that the abstract of judgment does not accurately reflect 

that the trial court stayed imposition of the fines and fees. 

Finally, defendant contends he should be awarded two additional 

days of presentence custody credit. The Attorney General does 

not dispute defendant’s latter two arguments.

We will order the abstract of judgment corrected to reflect 

the stay of fines and assessments and to add two days of 

presentence custody credit. As so modified, we affirm.

1 Further statutory references are to the Penal Code.

2 Defendant does not challenge his convictions for attempted 

murder and assault with a firearm, or the true finding of the 

personal use of a firearm enhancement for count 4.
3

II. BACKGROUND

A. Information

On December 28, 2020, the Los Angeles County District 

Attorney’s Office (District Attorney) charged defendant by 

information with four counts: discharge of a firearm with gross 

negligence (§ 246.3, subd. (a); count 1); possession of a firearm by 

a felon (§ 29800, subd. (a)(1); count 2); attempted murder of John 

Doe (§§ 664, 187, subd. (a); count 3); and assault with a 

semiautomatic firearm on Richard Cruz (§ 245, subd. (b); count 

4). The information further alleged that “as to counts 1, 3, and 4 

that in the commission and attempted commission of the above 

offense [sic], the defendant . . . personally used a firearm . . . 

within the meaning of . . . section 12022.5[, subdivision] (a) . . . .” 

The first page of the information was comprised of a “summary,” 

which reflected that the firearm enhancement was alleged for 

counts 1, 3, and 4.

On March 14, 2022, the District Attorney filed an amended 

information, which alleged the same four counts as set forth in 

the initial information and included certain additional allegations 

pursuant to California Rules of Court, rule 4.421(a)(1). The 

amended information alleged, “as to counts 1 and 4 that in the 

commission and attempted commission of the above offense[s]” 

defendant personally used a firearm. The only attempt offense 

charged in the information was count 3. The summary at the 

first two pages of the information reflected that the firearm 

enhancement was alleged for counts 1, 3, and 4.

On May 4, 2022, the District Attorney filed the operative 

second amended information. That information omitted 
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previously alleged count 1 but realleged counts 2, 3, and 4. The 

second amended information again alleged, “as to counts 1 and 4

that in the commission and attempted commission of the above 

offense[s]” defendant personally used a firearm. And, again, the 

summary pages of the information reflected that the firearm 

enhancement was alleged for counts 3 and 4.

B. Trial

Prior to the presentation of evidence at trial, defendant 

entered a plea of no contest to count 2, which charged him with 

being a felon in possession of a firearm.

The prosecution then presented evidence that on October 6, 

2019, Richard Cruz was working as a security guard at the 

Holiday Bar in Boyle Heights. That evening, defendant, who 

carried an alcoholic beverage in his hand, approached the bar. 

Cruz told defendant that he could not enter the bar with the 

beverage. A gun then fell out of defendant’s pants and onto the 

ground. Defendant picked up the gun and demanded to speak to 

the owner.

As defendant waited for the owner, a male customer who 

wore a jersey walked out of the bar. As that customer walked 

down the street and away from defendant, defendant fired a shot 

at him. Defendant then handed his beverage to Cruz, walked 

toward the customer, and demanded that the customer take off 

his jersey. The customer complied. As the customer walked 

away, defendant shot at him a “couple more times.” None of the 

shots struck the customer. Defendant told Cruz that he believed 

the customer was “a possible other gang member.”
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Defendant continued to threaten other customers as he and 

Cruz waited outside the bar for the bar’s owner. While Cruz was 

on the phone with the bar owner, defendant fired another shot 

that passed near Cruz’s face.

Defendant eventually went inside the bar and said that if 

Cruz did not take the gun away from him, defendant would shoot 

him. Cruz took the gun from defendant and threw it in a trash 

can.

Following the presentation of evidence, the trial court 

instructed the jury that “[i]f you find the defendant guilty of the 

crimes charged in counts 3 or 4 . . . you must then decide whether 

for each crime the People have proved the additional allegation 

that the defendant personally used a firearm during the 

commission of the crime.” The court then instructed the jury on 

the elements of the firearm enhancement.

During closing argument, the prosecution stated the 

following regarding the firearm allegation: “So once you find the 

defendant guilty of the attempt murder and the assault crime 

then you’re going to move on to what we call an allegation. 

Allegations attach to crimes . . . . [¶] In this particular case the 

allegation is that he used a firearm. There’s no dispute in this 

case that that was the case.”

During defendant’s closing argument, counsel did not 

dispute that defendant used a gun, but argued that he did not act 

with the required intent because “each time I think he used the 

gun you can conclude that he’s playing mind games on the 

security guard.” Counsel continued: “If he ever wanted to kill 

him he would have killed him. If he ever wanted to kill him 

when he’s talking to him and he’s got a loaded, operable semiautomatic with five live rounds his opportunity to kill was there. 
6

And he did not do it. He didn’t shoot it. He didn’t do anything 

with it. He didn’t hit him with it. He said, ‘Take off your shirt.’”

C. Conviction and Sentence

On May 6, 2022, the jury returned guilty verdicts on counts 

3 and 4 for attempted murder and assault with a semiautomatic 

firearm. It also found true the allegations that defendant 

personally used a firearm in the commission of those offenses. 

For count 3, the jury wrote “True” in the blank space on the 

verdict form, which stated, “We further find the allegation, that 

the defendant . . . personally used a firearm, a semi-automatic 

handgun, within the meaning of Penal Code Section 12022.5(a) to 

be: ____. ‘True’ or ‘Not True.’” The prosecution then dismissed 

count 2 in the interest of justice.

On October 6, 2022, the trial court sentenced defendant on 

count 3 to eight years imprisonment, which was the low term for 

the count plus three years for the firearm enhancement. For 

count 4, the court sentenced defendant to three years and four 

months, consisting of one-third the middle term, plus 16 months 

for the firearm enhancement, to be served consecutively to the 

sentence in count 3.

The trial court also imposed certain fines and assessments, 

but, because defendant represented that he lacked the ability to 

pay, the court “order[ed] the fines, fees, and assessments but 

stay[ed] actual imposition of them until it is proved or shown that 

[defendant] ha[d] the present ability to pay them.”

The trial court awarded defendant 1,095 days of actual 

custody credit and 164 days of conduct credit.
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III. DISCUSSION

A. Pleading of Sentencing Enhancement

Defendant contends that the second amended information 

failed to comply with statutory pleading requirements and 

violated his due process rights by not alleging the personal use of 

firearm enhancement for the attempted murder count. 

Alternatively, defendant contends his counsel provided ineffective 

assistance by failing to object to the imposition of the 

enhancement on this ground.

“As a rule, all sentence enhancements ‘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.’ [Citation.]” 

(People v. Anderson (2020) 9 Cal.5th 946, 953 (Anderson).) The 

bedrock of this rule is due process. “‘“No principle of procedural 

due process is more clearly established than that notice of the 

specific charge, and a chance to be heard in a trial of the issues 

raised by that charge, if desired, are among the constitutional 

rights of every accused in a criminal proceeding in all courts, 

state or federal.” [Citations.] “A criminal defendant must be 

given fair notice of the charges against him in order that he may 

have a reasonable opportunity properly to prepare a defense and 

avoid unfair surprise at trial.”’ [Citation.] This goes for sentence 

enhancements as well as substantive offenses: A defendant has 

the ‘right to fair notice of the specific sentence enhancement 

allegations that will be invoked to increase punishment for his 

crimes.’ [Citation.]” (Ibid.) Defendant’s statutory and 

constitutional arguments are questions of law that we review de 

novo. (People v. Scott (2016) 3 Cal.App.5th 1265, 1271.)
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“As a general rule, a criminal defendant who fails to object 

at trial to a purportedly erroneous ruling forfeits the right to 

challenge that ruling on appeal.” (Anderson, supra, 9 Cal.5th at 

p. 961.) This includes pleading defects. (Id. at p. 962.) Here, 

defendant did not complain about the enhancements alleged in 

the information in the trial court. He therefore has forfeited his 

argument on appeal.

Even if, however, defendant had not forfeited his argument, 

we would reject it on the merits. “‘An accusatory pleading[’s] . . .

purpose is to provide the accused with reasonable notice of the 

charges.’ [Citation.] Defects in the form of an accusatory 

pleading are not a ground to reverse a criminal judgment in the 

absence of significant prejudice to a defendant. (§ 960 [‘No 

accusatory pleading is insufficient, nor can the trial, judgment, or 

other proceeding thereon be affected by reason of any defect or 

imperfection in matter of form which does not prejudice a 

substantial right of the defendant upon the merits’].)” (People v. 

Sandoval (2006) 140 Cal.App.4th 111, 132.) Here, the 

information provided defendant with reasonable notice that the 

District Attorney charged him with a firearm enhancement on 

count 3. The original information correctly and expressly alleged 

that the firearm enhancement was alleged as to “counts 1, 3, 

and 4.” In the subsequent first and second amended 

informations, the summary of the charges reflected that the

firearm enhancement was alleged as to count 3, the attempted 

murder count. Moreover, although the reference to count 3 was 

not included in the allegation itself, it stated that the 

enhancement was alleged as to the attempted offense, and the 

only such offense charged in the information was count 3. 

Finally, the prosecution’s presentation of evidence, the delivery of 
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jury instructions, the verdict form, and the closing arguments all 

demonstrate that both parties understood the firearm 

enhancement was alleged as to both counts 3 and 4. On this 

record, we conclude that defendant was informed of the charges 

he faced and therefore was not deprived of an opportunity to 

defend against the enhancement.

We also reject defendant’s ineffective assistance of counsel 

claim. “To succeed, [defendant] must show that this omission ‘fell 

below an objective standard of reasonableness’ [citations] in light 

of ‘the professional norms prevailing when the representation 

took place’ [citation]. [Defendant] must also show ‘a reasonable 

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.’ [Citation.]

[Defendant] ‘need not show that counsel’s deficient conduct more 

likely than not altered the outcome in the case.’ [Citation.] It is 

enough to show ‘a probability sufficient to undermine confidence 

in the outcome.’” (In re Long (2020) 10 Cal.5th 764, 773.) 

Because we have considered and rejected defendant’s claims on 

the merits, defendant cannot demonstrate that he was prejudiced 

by his counsel’s failure to raise the argument below.

B. Remaining Sentencing Issues

1. Stay of Fines and Assessments

Defendant also argues the abstract of judgment does not 

properly reflect the trial court’s stay of fines and assessments. 

The Attorney General concedes the error.

As noted, at sentencing, the trial court imposed fines and 

assessments but stayed them. The abstract of judgment, 
10

however, does not reflect the stay. “Courts may correct clerical 

errors at any time, and appellate courts (including this one) that 

have properly assumed jurisdiction of cases have ordered 

correction of abstracts of judgment that did not accurately reflect 

the oral judgments of sentencing courts.” (People v. Mitchell

(2001) 26 Cal.4th 181, 185 (Mitchell).) “An abstract of judgment 

is not the judgment of conviction; it does not control if different 

from the trial court’s oral judgment and may not add to or modify 

the judgment it purports to digest or summarize.” (Ibid.)

On remand, we will direct the trial court to correct the 

abstract of judgment to include the stay of fines and assessments.

2. Presentence Custody Credit

Finally, defendant contends the trial court erroneously 

calculated his presentence custody credit. The Attorney General 

agrees.

Defendant was arrested on October 6, 2019, and sentenced 

on October 6, 2022. Defendant therefore should be credited with 

1,097 days, not 1,095, of actual custody presentence credit. 

(§ 2900.5.) The conduct credits remain at 164 days. (See § 2933.1 

[15 percent of actual custody credit if convicted of violent felony 

such as attempted murder].) We will modify the judgment to 

correct this error. (See Mitchell, supra, 26 Cal.4th at p. 185.)
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IV. DISPOSITION

The judgment is modified to reflect that defendant is 

awarded 1,097 days of actual custody presentence credit. As so 

modified, the judgment is affirmed. On remand, the trial court is 

directed to amend the abstract of judgment to reflect the 

judgment as modified, to correct the abstract of judgment to 

reflect the stay of fines and assessments, and to forward the 

amended and corrected abstract of judgment to the Department 

of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

BAKER, Acting P. J.

MOOR, J.