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,

Plaintiff and Respondent,

v.

GABRIEL DIAZ,

Defendant and Appellant.

 B303103

 (Los Angeles County

 Super. Ct. No. KA113304)

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.

__________________________
2

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. 
3

[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 passengerside 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.” 
4

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. 
5

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.)
6

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 
7

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 
8

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. 
9

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.)
10

[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 
11

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 heatof-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 
12

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 
13

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 
14

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 
15

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.) 
16

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.” 
17

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. 
18

‘[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. 
19

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. 
20

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.