Filed 11/23/21 P. v. Gonzales CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN GONZALES,

Defendant and Appellant.

 B306537

 (Los Angeles County

 Super. Ct. No. LA082639)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Alan Schneider, Judge. Affirmed in part, 

vacated in part and remanded.

Mark Yanis, 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, Paul M. Roadarmel, Jr. and 
2

David A. Wildman, Deputy Attorneys General, for Plaintiff 

and Respondent.

_____________________________________

INTRODUCTION

In January 2016, appellant Brian Gonzales confronted 

his ex-girlfriend Emily Fox and her new boyfriend Jerred 

Scott in a hallway outside Fox’s apartment and learned that 

Fox was dating Scott. Appellant reacted to this discovery by 

drawing a gun, causing Scott to flee. Appellant pursued him 

and forced him to return at gunpoint. After discovering that 

Fox had called the police while he was chasing Scott, 

appellant shot and killed them both. He was charged with 

two counts of murder. Each count was accompanied by 

firearm and multiple murder allegations under Penal Code 

sections 12022.53, subdivision (d) (section 12022.53(d)) and

190.2, subdivision (a)(3) (section 190.2(a)(3)).

1 Count two 

(the murder of Scott) was also accompanied by an allegation 

that Scott’s murder was committed during a kidnapping 

under section 190.2, subdivision (a)(17) (section 

190.2(a)(17)). Appellant pled not guilty.

At a pretrial hearing, appellant’s counsel indicated he 

intended to present a “heat of passion” defense and wanted 

to call an expert to testify about which region of the brain 

was active when a person acted during the heat of passion. 

1 Undesignated statutory references are to the Penal Code.
3

The court declined to permit such testimony, finding that a 

juror would know from common experience that a person 

could act in such a manner, and concluding it was not 

helpful to explain where in the brain such actions originated.

After all witnesses had testified and both counsel had given 

their closing arguments, the jury was presented with verdict 

forms regarding each murder count and all charged special 

circumstances. The verdict form for Fox’s murder 

additionally contained the uncharged special circumstance 

that her murder occurred during a kidnapping. The jury 

convicted appellant of all counts and found true all special 

circumstances, including the uncharged one. The court 

sentenced appellant to life without the possibility of parole 

for each murder count based on both the true multiple 

murder findings and the true kidnapping findings. The 

court additionally sentenced appellant to 25 years to life for 

each of the true firearm findings, arriving at a total sentence 

of life without the possibility of parole, plus 50 years to life. 

The court also imposed various fines and fees. 

Appellant makes five arguments on appeal: (a) the 

court erred in excluding the expert testimony; (b) the court 

erred in sentencing appellant based on the true finding that 

Fox’s murder occurred during a kidnapping; (c) the court 

erred in imposing fines and fees without determining 

appellant’s ability to pay; (d) the instruction the court gave 

regarding reasonable doubt was inadequate to inform the 

jury that each element of each offense and special 

circumstance was required to be proven beyond a reasonable 
4

doubt; and (e) the cumulative prejudicial effect of the errors 

in excluding the expert testimony and inadequately

instructing on reasonable doubt warrants reversal.

We conclude that: (a) the court did not err in excluding 

the expert testimony; (b) the court erred in basing 

appellant’s sentence in count one (Fox’s murder) in part on 

the true finding on an uncharged special circumstance; (c) 

appellant forfeited any objections to the imposed fines and 

fees by failing to raise the issue when they were imposed; (d) 

our Supreme Court has already rejected appellant’s 

argument regarding the reasonable doubt instruction, and 

we are bound to follow its decision; and (e) because the court 

did not err in excluding the expert testimony or instructing 

on reasonable doubt, there is no cumulative error. We 

therefore vacate that portion of the judgment basing 

appellant’s sentence in count one on section 190.2(a)(17), and 

remand with directions to modify the abstract of judgment to 

remove this section as a basis for the sentence imposed on 

count one (and to correct the other errors discussed below). 

We otherwise affirm.

STATEMENT OF RELEVANT FACTS

A. Pre-Trial

After an August 2017 preliminary hearing, the court 

originally held appellant to answer on two counts of murder, 

with additional allegations that there were multiple 

murders, that the murders were committed with a firearm, 

and that they were committed in the course of a kidnapping
5

pursuant to section 190.2(a)(17). When the prosecutor asked 

to clarify to which count the kidnapping allegation 

pertained, the court responded: “It’s not specified and it 

occurred during the course of a crime for both, so the court 

will find it as to both. It is not specified in the complaint as 

to which count.” Immediately thereafter, however, the court 

stated, “There is sufficient evidence as to both, but the court 

will hold him to answer as charged as to count two [Scott’s 

murder] only.” Two weeks later, the People filed an 

information charging appellant with two counts of murder, 

and alleging both that appellant used a firearm in each 

murder (§ 12022.53(d)2), and that each murder involved 

multiple murders (§ 190.2(a)(3)3). A kidnapping special 

2

(§ 12022.53(d) [“Notwithstanding any other provision of 

law, any person who, in the commission of a felony specified in 

subdivision (a), Section 246, or subdivision (c) or (d) of Section 

26100, personally and intentionally discharges a firearm and 

proximately causes great bodily injury, as defined in Section 

12022.7, or death, to any person other than an accomplice, shall 

be punished by an additional and consecutive term of 

imprisonment in the state prison for 25 years to life”].)

3

(§ 190.2(a)(3) [“The penalty for a defendant who is found 

guilty of murder in the first degree is death or imprisonment in 

the state prison for life without the possibility of parole if one or 

more of the following special circumstances has been found . . . to 

be true: [¶] . . . [¶] (3) The defendant, in this proceeding, has been 

convicted of more than one offense of murder in the first or 

second degree”].)
6

circumstance (§ 190.2(a)(17)4) was alleged only as to count 

two, Scott’s murder. Appellant pled not guilty to all counts. 

At a January 2020 pretrial hearing in which 

appellant’s counsel explained he intended to pursue a “heat 

of passion” defense, the court was asked to permit 

appellant’s expert to testify that the limbic system (the 

emotional part of the brain) can “‘hijack’” and deactivate the 

prefrontal cortex of the brain (where premeditation occurs) 

when a person is sufficiently “‘aroused’” or “‘enraged.’” The 

court declined, opining that “where[] within the brain these 

issues are formed is not as important as the fact that they 

were formed.” The court found the proffered testimony was 

unnecessary and would confuse the issues, both because the 

expert could not testify as to what had happened in 

appellant’s brain, and because the jury was “eminently 

qualified to determine the impact on formation of 

premeditation and deliberation or of fear or anger or sadness 

. . . . They don’t need to know specifically, where, within the 

brain, it is formed to do that.” The court concluded it would 

“mislead[] the jury to worry about the complicated brain 

functioning” unnecessarily, and that there was “some 

consumption of time issue . . . .” 

4

(§ 190.2(a)(17) [“The penalty for a defendant who is found 

guilty of murder in the first degree is death or imprisonment in 

the state prison for life without the possibility of parole if one or 

more of the following special circumstances has been found . . . to 

be true: [¶] . . . [¶] (17) The murder was committed while the 

defendant was engaged in . . . (B) Kidnapping in violation of 

Section 207, 209, or 209.5”].)
7

B. Trial

1. Testimony

Trial began in late January 2020. In the prosecutor’s 

opening statement, he informed the jury that it would “hear 

evidence about how this defendant killed Jerred [Scott] in 

the commission of kidnapping” but did not similarly state 

that appellant had killed Fox in the commission of

kidnapping. In the opening statement of appellant’s counsel, 

he claimed appellant had shot both Fox and Scott “without 

premeditation and without deliberation,” but rather as a 

reaction to discovering Fox had called the police on him, and 

seeing Scott step toward him. 

Multiple witnesses testified at trial, including 

appellant and his family and friends, Fox’s family and 

friends, and several professionals (police officers, a 

criminalist, a firearm examiner, and a coroner). All the 

witnesses agreed on the basic facts.

After Fox and appellant began dating in late 2013, 

appellant was verbally and physically abusive toward Fox. 

In one incident, Fox’s best friend, Amanda Morton, was 

driving Fox and appellant to a restaurant. When appellant 

learned they were going to the Inglewood location of the 

restaurant instead of the Hollywood location, he began 

yelling and screaming at Fox, calling her a bitch, claiming 

she had lied, and demanding to be taken home. Fox began 

crying, and when Morton asked Fox if appellant always 

treated her in this manner, she confirmed he did. Also 

played at trial was a recording Fox had made of a 
8

conversation between appellant and her, in which appellant 

apologized for choking Fox and throwing her on the couch. 

Morton testified that Fox had told her appellant had “[held]

guns to her head,” and was very controlling. From mid to 

late 2015, Fox began expressing a desire to break up with 

appellant. 

By December 25, 2015, when Fox visited Morton in 

Dallas, Fox had broken up with appellant, had asked that 

his belongings be removed from her apartment, and had 

begun dating Scott. While Fox was visiting Morton, 

appellant called Fox and angrily told her that “when she got 

back into town . . . she had to watch her back because there 

was going to be bloodshed.” 

Though appellant moved out of Fox’s apartment 

shortly after the new year and took most of his belongings 

with him, he left some personal items behind due to 

insufficient space in the car he was using for the move. 

Appellant testified that he believed he and Fox were “on a 

break,” but had agreed not to date other people. 

In January 2016, on the day of the killings, appellant 

was driving his 16-year-old cousin Kamal Jenkins from 

Santa Barbara to Inglewood, when Jenkins told him he 

needed to use the bathroom. Appellant suggested they stop 

at Fox’s apartment, where Jenkins could use the bathroom,

and appellant could both retrieve some of his clothes that 

were still there and say hello to Fox. Appellant attempted to 

contact Fox through various means, but received no response 

until he had already arrived and was pulling into the 
9

apartment complex’s subterranean garage. Fox’s response 

was: “‘Now isn’t a good time because my mom is here.’” 

Appellant parked in the garage and saw an unfamiliar 

vehicle in one of Fox’s parking spaces, making him

suspicious. He noticed that the driver’s seat of this car was 

moved far back, leading appellant to suspect the car 

belonged to a man. Appellant told Jenkins to urinate in a 

corner of the parking garage; Jenkins complied, and then got 

back in appellant’s car, joining him. Appellant tried to 

communicate with Fox again, but was unable to obtain a 

signal in the underground garage. Appellant then went to 

the trunk of his car and retrieved a gun. Before closing the 

trunk, he chambered a round, engaged the safety, and put 

the gun in his waistband.

5 He and Jenkins then rode the 

elevator to the third floor where Fox’s apartment was 

located. 

When they exited the elevator, Fox greeted them and 

gave Jenkins a hug. Shorty after, Scott approached, shook 

Jenkins’s hand, and told appellant he did not know what Fox 

and appellant had “going on,” but he had nothing to do with 

it, and had “no problems.” Appellant asked Fox whether 

Scott was her new boyfriend, and after Fox stated he was, 

5 Appellant testified he was armed “all the time, especially 

when I’m in this specific neighborhood” because it was a known 

Hispanic gang neighborhood, and appellant was African 

American; because of appellant’s tattoos, other gang members 

often thought he was part of a gang. He claimed that arming 

himself in that neighborhood was simply a habit. 
10

appellant became upset and drew his gun. Scott ran, but 

appellant chased him and forced him to return at gunpoint. 

When appellant ran after Scott, Fox called 911 and told

the operator that her ex-boyfriend had come to her property 

with a gun and tried to shoot her current boyfriend. After 

appellant returned with Scott, Scott moved next to Fox and 

Jenkins, and all three faced appellant. Appellant testified 

he saw Fox on the phone and thought, “I need to take the 

[gun’s] safety off.” He then asked Fox if she was calling the 

police. Appellant testified that as Fox began to answer, he 

saw Scott take a step toward him and he “just snapped” and 

“blacked out and started shooting”; Jenkins dropped to the 

ground and closed his eyes. A total of nine bullet casings 

were recovered from the scene. Appellant testified that he 

believed he fired from only one location, but a criminalist 

testified that an analysis of the bullet pathways indicated 

appellant was moving as he fired his gun. Fox and Scott 

were each shot four times; Jenkins was not shot. Appellant 

admitted he aimed at Scott and Fox when firing.

After he stopped shooting, appellant ran toward the 

stairs and Jenkins followed. The two left in appellant’s car, 

and Jenkins called his mother. Appellant eventually 

dropped Jenkins off near Dodger Stadium and his mother 

picked him up. Several hours later, Jenkins and his mother

went to the police and told them what he had seen. Two 

days later, appellant was apprehended without incident at a 

Greyhound bus station; he was sitting on a bus going to 

Tijuana, Mexico. 
11

During closing argument, the prosecutor professed 

confidence that the jury would find appellant “guilty of two 

counts of first degree murder, that he kidnapped Jerred 

[Scott] in the commission of that murder and that he 

obviously killed both victims, multiple murders.” (Italics 

added.) 

2. The Jury Finds Appellant Guilty on All 

Counts

Among the jury instructions given was CALCRIM No. 

220, which provided that the prosecution was required to 

“prove a defendant guilty beyond a reasonable doubt” and 

that “[w]henever I tell you the People must prove something, 

I mean they must prove it beyond a reasonable doubt . . . .”

The jury was also instructed on what was required for a true 

finding on a kidnapping special circumstance, but neither 

that instruction nor any other specified the count to which 

the kidnapping instruction applied. However, the verdict 

form for Fox’s murder contained the sentence: “We further 

find the special circumstance allegation that the defendant 

committed the offense during the crime of KIDNAPPING 

within the meaning of Penal Code Section 190.2(a)(17) to be: 

___________________” with “(TRUE OR NOT TRUE)” written 

under the blank.6 The record is silent as to the 

circumstances surrounding the approval of this verdict form.

6 Included with the verdict forms was a special verdict form, 

instructing the jury that if they found appellant guilty of one 

(Fn. is continued on the next page.)
12

During deliberations, the jury asked the court, “If we 

find a kidnapping occurred in regards to Count 2 (Jer[r]ed 

Scott), and Emily [Fox] is killed in the commission of the 

kidnapping, does this also constitute murder 1 in regards to 

Emily[?]” In discussing this question, appellant’s counsel 

indicated his belief that the answer should be “no,” but the 

court disagreed, stating the question was what the jury 

found “to be in the commission of the kidnapping and 

540A.”7 Appellant’s counsel then asked, “wasn’t the DA’s 

theory, that limits that theory to Jerred Scott [sic]?” The 

prosecutor responded that this was “incorrect” and 

“ridiculous.” The court’s response to the jury was: “The 

court refers the jury to the homicide instructions already 

provided.” The jury found appellant guilty of the first degree 

murders of Fox and Scott. It further found true the 

allegation as to each murder that it was committed during 

the crime of kidnapping, and that appellant intentionally 

charge of first degree murder, and one additional charge of either 

first degree or second degree murder, they were to determine 

whether “the multiple murder special circumstance within the 

meaning of Penal Code section 190.2(a)(3)” was true. 

7 Instruction 540A provided that the defendant was charged 

with two counts of first degree felony murder, and that to prove 

defendant’s guilt, the prosecution was required to prove, among 

other elements, that “[w]hile committing kidnapping[,] the 

defendant caused the death of another person.” 
13

discharged a firearm in committing the crimes. The jury 

found true the multiple murder special circumstance.8

The court sentenced appellant to life imprisonment 

without the possibility of parole for each count due to both 

the true finding on the kidnapping special circumstance, and 

the true finding on the multiple murder special 

circumstance. The court imposed an additional 25 years to 

life for each true finding that appellant discharged a firearm 

and caused great bodily injury, resulting in a total sentence 

of life without the possibility of parole, plus an additional 50 

years to life.9 The court also ordered appellant to pay 

various fines and fees. Appellant timely appealed. 

8 In June 2020, appellant moved for a new trial, arguing that 

he had been relying on a “heat of passion defense,” but was 

prevented from presenting expert testimony to explain that 

complex thought processes and impulsive decisions were 

governed by different regions of the brain, and that when 

sufficiently aroused by extreme emotion, the portion of the brain 

responsible for impulsive decisions could prevent premeditation. 

Though appellant acknowledged “it is common knowledge that 

people can act without thinking while in the throes of an extreme 

emotional state,” he argued that precluding his expert from 

testifying deprived him of “the opportunity to establish a very 

critical part of its defense: an explanation as to ‘how’ one part of 

the brain can actually prevent another part of the brain from 

thinking clearly and exercising judgment.” The court denied 

appellant’s motion, and appellant does not challenge this ruling

on appeal. 

9 Both the abstract of judgment and the minute order 

erroneously state that appellant was sentenced to an additional 

25 years under section “1202.53(d)” instead of section 

(Fn. is continued on the next page.)
14

DISCUSSION

A. The Court Did Not Err in Excluding Expert 

Testimony About the Mechanics of How the 

Brain Functions

At a pretrial hearing, the court refused to permit

appellant’s expert to testify that the limbic system can 

“‘hijack’” and deactivate the prefrontal cortex of the brain 

(where premeditation occurs) when a person is sufficiently 

“‘aroused’” or “‘enraged,’” finding it was unnecessary, would 

confuse the issues, and would require too much time. 

Appellant contends the excluded testimony was relevant and 

would have aided the jury, the testimony was not confusing 

and did not require an undue consumption of time, and its 

exclusion was prejudicial.10 We disagree.

We typically review a court’s exclusion of evidence for 

an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 

690, 725 [“an appellate court applies the abuse of discretion 

standard of review to any ruling by a trial court on the 

admissibility of evidence”].) Citing People v. Seijas (2005) 36 

12022.53(d). The abstract of judgment also erroneously states 

that appellant was sentenced under “190.2(a)(2) PC” (as opposed 

to section 190.2(a)(3)), and incorrectly lists his attorney as 

“TYREE A. ALMADA, DDA” instead of “TYREE CAMPBELL.” 

(Manuel A. Almada was the prosecutor.)

10 Appellant also argues that the testimony did not violate 

sections 28 and 29 (pertaining to expert testimony regarding a 

defendant’s mental disease, defect, or disorder). Because the 

court did not exclude the testimony under those sections, we need 

not address this argument.
15

Cal.4th 291, appellant contends that because this ruling 

“deprived appellant of his constitutional right to present a 

defense, the de novo standard should apply.” We find it 

unnecessary to decide which standard of review applies, 

because we would affirm under either standard.

The primary question for the jury was whether 

appellant’s mental state precluded him from engaging in 

premeditation. Though appellant acknowledges “it is 

common knowledge that people can act without thinking 

while in the throes of an extreme emotional state,” he fails to 

explain how knowing where in the brain such decisions 

emanate would aid the jurors in determining whether 

appellant acted from impulse or premeditation. Nor do we 

discern any other manner in which such testimony would 

have been helpful. Accordingly, we conclude the court acted 

well within its discretion in ruling that the excluded 

testimony had no tendency in reason to prove or disprove 

that appellant was in a mental state that precluded 

premeditation; on an independent review, we would make 

the same ruling ourselves.

11

11 The cases on which appellant relies are inapplicable

because they deal with expert testimony on issues outside the 

common experience of a juror. (See People v. Sotelo-Urena (2016) 

4 Cal.App.5th 732, 746 [trial court erred in precluding expert 

testimony regarding effect of homelessness on defendant’s belief

in need for self-defense]; People v. Humphrey (1996) 13 Cal.4th 

1073, 1076, 1087 [expert testimony regarding battered woman 

syndrome “‘would have assisted the jury in objectively analyzing 

[defendant’s] claim of self-defense by dispelling many of the 

(Fn. is continued on the next page.)
16

Moreover, the exclusion of this testimony did not 

prejudice appellant; thus had we found error, we would deem 

it harmless. The jury had already heard testimony (1) that 

appellant had been verbally and physically abusive toward 

Fox, (2) that he armed himself before going to see her, (3) 

that he did not draw his gun until Fox confirmed Scott was 

her new boyfriend, (4) that he chased Scott down after the 

latter ran, marching him back to Fox at gunpoint, (5) that he 

deliberately disengaged the safety of his gun after he saw 

Fox on the phone, and (6) that he aimed at both Fox and 

Scott (but not at Jenkins), and fired his gun while in motion, 

even though he claimed to have been shooting in a blind 

commonly held misconceptions about battered women’”]; In re 

Walker (2007) 147 Cal.App.4th 533, 552-553 [ineffective 

assistance of counsel due to failure to present expert testimony 

on battered woman syndrome, because such testimony would 

have helped the jury assess “the nature and extent” of 

defendant’s fear]; People v. McAlpin (1991) 53 Cal.3d 1289, 1296, 

1300-1302 [expert testimony explaining why parents might not 

report child molestation admissible because it would aid jury in 

determining credibility of mother’s testimony]; People v. 

Coddington (2000) 23 Cal.4th 529, 582-583 [“expert’s opinion that 

a form of mental illness can lead to impulsive behavior is 

relevant to the existence vel non of the mental states of 

premeditation and deliberation”]; People v. Vu (1991) 227 

Cal.App.3d 810, 813 [error to exclude expert testimony that a 

person’s actual perception of events may have differed from 

reality due to stress and preconceived expectations about what 

might happen].) By contrast, the idea that a person, when 

angered, could act impulsively without premeditation is within a 

juror’s common experience.
17

rage. On this record, we find beyond a reasonable doubt that 

hearing testimony that if appellant had been acting due to 

rage, his decisions would have emanated from his limbic 

system and not his prefrontal cortex, would have made no 

difference in the jury’s verdict.12

12 Appellant’s reliance on People v. Cortes (2011) 192 

Cal.App.4th 873 is misplaced. In Cortes, where the defendant 

was accused of stabbing the victim to death, an expert was 

prepared to testify that the defendant was acting out of fear, and 

that his mental function was overwhelmed and impaired during 

the fight. (Id. at 877, 885, 894.) However, the court precluded 

the expert from offering any testimony about the defendant’s 

mental state and functioning, or his past or present psychiatric 

disorders or diagnoses, thus “effectively eviscerat[ing] any 

defense defendant had to premeditated and deliberated murder” 

and “prevent[ing]the jury from properly evaluating evidence that 

would have been relevant to its consideration of the self-defense, 

imperfect self-defense and heat of passion instructions given 

here.” (Id. at 912 & 899-900.) Here, by contrast, appellant’s 

expert would not have testified to whether appellant had entered 

into a state of rage, or whether he was predisposed to do so. The 

exclusion of the testimony did not “eviscerate” appellant’s 

defense, but merely prevented the jury from learning what part

of the brain is responsible for the actions of a person in an 

emotionally charged state. Cortes is thus inapposite.
18

B. The Court Erred in Sentencing Appellant 

Based on the True Finding of the

Kidnapping Special Circumstance as to 

Fox’s Murder

The jury’s finding that Fox’s murder occurred “during 

the crime of KIDNAPPING within the meaning of Penal 

Code Section 190.2(a)(17)” constituted one of the bases for 

the court to sentence appellant on that count to life 

imprisonment without the possibility of parole.

13 Appellant 

contends the court erred in sentencing him based on this 

true finding because the kidnapping special circumstance 

was never alleged as to Fox’s murder. The People counter 

that appellant has forfeited this argument, and that 

regardless, appellant was given adequate notice that the 

kidnapping special circumstance applied to Fox’s murder as 

well. While we recognize that appellant makes this 

argument for the first time on appeal, we exercise our 

discretion to consider it, and find it meritorious.

1. We Exercise Our Discretion to 

Consider Appellant’s Argument

Appellant admits that he “did not object to the lack of a 

specific kidnapping special circumstance in count 1,” but 

argues that he did not forfeit this argument because “he put 

the court and prosecution on notice that he believed the 

13 The other basis was the jury’s finding that Fox’s murder 

was part of a multiple murder under section 190.2(a)(3). 
19

prosecution’s kidnapping theory was only as to Scott.” 

However, the discussion appellant references related to the 

jury’s question: “If we find a kidnapping occurred in regards 

to Count 2 (Jer[r]ed Scott), and Emily [Fox] is killed in the 

commission of the kidnapping, does this also constitute 

murder 1 in regards to Emily[?]” By stating its opinion that 

the issue was what the jury found “to be in the commission 

of the kidnapping and [instruction] 540A” -- which 

instruction explained the elements needed to convict 

appellant of first degree felony murder -- the court indicated 

it interpreted the jury’s question to be whether Scott’s 

kidnapping could serve as the predicate felony for the felony 

first degree murder of Fox. Thus, when appellant’s counsel 

stated he believed the prosecution’s kidnapping theory 

applied only to Scott’s murder, the prosecutor replied that 

was both “incorrect” and “ridiculous.” The statement of 

appellant’s counsel does not constitute an objection that the 

kidnapping special circumstance was improperly applied to 

Fox’s murder.

However, while appellant failed to object adequately, 

we have discretion to consider his appeal on this issue. We 

find instructive our Supreme Court’s recent case of People v. 

Anderson (2020) 9 Cal.5th 946 (Anderson). There, the 

defendant was charged with one count of murder and five 

counts of robbery. (Id. at 949, 950.) In connection with the 

murder count, the defendant “was subject to a 25-year-to-life 

enhancement based on vicarious liability for the injurious 

discharge of a firearm by a coparticipant in a gang-related 
20

offense.” (Id. at 951.) “By contrast, in connection with each 

of the robbery counts, . . . the information alleged two 

personal use firearm enhancements—one a 10-year 

enhancement . . . and the other a three-, four-, or 10-year 

enhancement . . . .” (Ibid.) But after the close of evidence, 

“[t]he trial court instructed the jury that it could find that 

the prosecution proved the elements of the 25-year-to-life 

vicarious firearm discharge enhancements under section 

12022.53(e) as to the robbery counts—even though they were 

not alleged in the operative information—and approved 

verdict forms to the same effect. The record does not show 

definitively how this occurred, but it appears the prosecution 

requested this instruction as to the robbery counts after the 

close of the evidence.” (Ibid.) The jury convicted on all 

counts and returned true findings on all enhancement 

allegations. (Ibid.) At sentencing, the court imposed the 25-

year-to-life enhancements on each of the five robbery counts 

over the defendant’s Eighth Amendment objection, and the 

defendant appealed. (Anderson, supra, at 952.)

On appeal, the defendant argued for the first time that 

the enhancements could not be imposed because they had 

not been adequately pled in the charging document. 

(Anderson, supra, 9 Cal.5th at 952.) Because the 25-year-tolife enhancement had been pled as to the murder count, the 

Court of Appeal affirmed the judgment, and the Supreme 

Court granted review. (Ibid.) On the issue of forfeiture, the 

Supreme Court found that although the defendant failed to 

object at trial that he could not be subjected to the 25-year-
21

to-life enhancements for the robbery counts because they 

were not pled, the court should still consider the issue 

because (1) the error was “clear and obvious”; (2) “the error 

affected substantial rights by depriving Anderson of timely 

notice of the potential sentence he faced”; and (3) “the error 

was one that goes to the overall fairness of the proceeding.” 

(Id. at 963.) We address the same considerations here and 

exercise our discretion to consider the merits of appellant’s 

appeal on this issue.

2. The Court Erred in Sentencing 

Appellant on the Uncharged Special 

Circumstance

In Anderson, our Supreme Court held that the 

defendant could not be sentenced based on true findings on 

unpled enhancements because the defendant “was entitled to 

a pleading that provided him with fair notice that he faced 

25-year-to-life enhancements under section 12022.53(e) as to 

each charged robbery offense if this was the prosecution’s 

intent.” (Anderson, supra, 9 Cal.5th at 955.) The court 

elaborated that “[a] pleading that alleges an enhancement as 

to one count does not provide fair notice that the same 

enhancement might be imposed as to a different count. 

When a pleading alleges an enhancement in connection with 

one count but not another, the defendant is ordinarily 

entitled to assume the prosecution made a discretionary 

choice not to pursue the enhancement on the second count, 

and to rely on that choice in making decisions such as 
22

whether to plead guilty or proceed to trial.” (Id. at 956.) 

“Fair notice requires that every sentence enhancement be 

pleaded in connection with every count as to which it is 

imposed.” (Id. at 956-957.) The court also rejected the 

Attorney General’s argument that defense counsel’s 

agreement to the verdict forms containing the 25-year-to-life 

enhancements for the robbery counts constituted an informal 

agreement to amend the information, finding that “to treat 

defense counsel’s lack of objection as acquiescence or consent 

would go a long way toward eroding Anderson’s right to 

notice of the potential penalties he faced.” (Id. at 960.)

The facts in the instant appeal are strikingly similar: 

just as the more severe firearm enhancements in Anderson

were pled only as to some of the counts, so too was the 

kidnapping special circumstance in the instant case pled 

only as to count two, Scott’s murder. In both cases, while the 

information was never amended to add the unpled 

enhancements to other counts, the verdict forms for those 

other counts contained a space for the jury to make a true 

finding as to the unpled enhancements, and the jury did so. 

The court in both cases then imposed sentences based on 

those true findings.

The People attempt to distinguish Anderson, arguing 

that unlike the defendant there, “appellant had notice that 

the kidnapping special circumstance pertaining to the 

kidnapping of Scott was at issue” because “it was alleged in 

the information as to count 2 and the jury verdict forms 

contained the kidnapping special circumstance as to both 
23

counts.” But in Anderson, the defendant also had notice that 

the more severe firearm enhancements were at issue 

because they were alleged in connection with the murder 

count, and also were contained in the jury verdict forms. 

(Anderson, supra, 9 Cal.5th at 951.) Here, the kidnapping 

special circumstance was neither alleged in connection with 

the murder of Fox (count one) nor alluded to by the 

prosecutor.

In support of their argument that we should find 

forfeiture or that appellant impliedly consented to the 

application of the kidnapping special circumstance to Fox’s 

murder, the People cite People v. Houston (2012) 54 Cal.4th 

1186 (Houston); People v. Ward (2005) 36 Cal.4th 186 

(Ward), People v. Toro (1989) 47 Cal.3d 966 (Toro), and 

People v. Valenzuela (2011) 199 Cal.App.4th 1214 

(Valenzuela). We find these cases inapposite.

In Houston, while the indictment “did not allege that 

the attempted murders were deliberate and premeditated,”

the court undertook several actions that made clear the jury 

would be asked to determine deliberation and premeditation. 

(Houston, supra, 54 Cal.4th at 1226.) These included 

presenting the parties with a “preliminary draft of the 

verdict forms, which indicated that the court would ask the 

jury to determine whether the attempted murders were 

willful, deliberate, and premeditated”; specifically stating its 

belief that the prosecution was “intending to charge 

premeditated attempted murder” with a penalty of life 

imprisonment and instructing counsel to correct the court if 
24

they disagreed; and announcing “its intent to have the 

attempted murder verdict form list deliberate and 

premeditated attempted murder as ‘a special finding’” and 

“instruct[ing] the jurors . . . to determine whether the 

attempted murders were willful, deliberate, and 

premeditated.” (Ibid.) Because the defendant did not object 

at any of these points, or at sentencing, the Supreme Court 

found the defendant had forfeited any argument concerning 

a defective indictment. Here, unlike Houston, there was no 

midtrial discussion highlighting the prosecution’s intent to 

apply the kidnapping special circumstance to Fox’s murder. 

(See Anderson, supra, 9 Cal.5th at 963 [“unlike Houston . . . 

there was no midtrial discussion highlighting the 

prosecution’s intent to seek the more serious vicarious 

firearm enhancements instead of the less serious personal 

use enhancements charged in the information”].)

In Ward, the defendant was charged initially with 

multiple murders and a “multiple-murder special 

circumstance” under section 190.2(a)(3). (Ward, supra, 36 

Cal.4th at 193.) The defendant then successfully moved to 

sever the murder charges such that he was tried in one trial 

for one murder, and a subsequent trial for the second 

murder. (Ibid.) After he was convicted of murder by the 

first jury, the second jury also found true an allegation that 

“[t]he defendant was convicted previously of murder in the 

first or second degree” pursuant to section 190.2, subdivision

(a)(2). (Ward, supra, at 219.) On appeal, the defendant 

argued he could not be punished under subdivision (a)(2), 
25

because he was charged under subdivision (a)(3). (Ward, at 

218-219.) Our Supreme Court rejected this argument, first 

noting that both subdivisions “‘are plainly complementary, 

and were evidently intended to define a single basic special 

circumstance—multiple murder—which can be satisfied by 

convictions in a single proceeding or in more than one 

proceeding’” and then finding that “defendant, by accepting 

the jury instruction and the jury’s finding on the allegedly 

uncharged special circumstance, acquiesced in the special 

circumstance finding. Indeed, defendant expressly 

acknowledged that severance of his murder charges would 

result in the application of section 190.2, subdivision (a)(2). 

As such, no amendment of the information was necessary 

. . . .” (Id. at 219, italics omitted.) Here, by contrast, there 

was no complementary kidnapping special circumstance 

alleged as to Fox’s murder, there was no acknowledgment 

that this special circumstance applied to Fox’s murder, and 

although appellant agreed to a kidnapping special 

circumstance jury instruction, there was no indication that 

this kidnapping special circumstance instruction applied to 

Fox’s murder, as opposed to only Scott’s murder.

In Toro, our Supreme Court considered whether a jury 

could convict on an uncharged lesser related offense (battery 

with serious bodily injury when the defendant was charged 

with attempted murder). (Toro, supra, 47 Cal.3d at 969.) 

The court concluded that “when a lesser related offense is 

submitted to the jury without objection, the defendant must 

be regarded as having impliedly consented to the jury’s 
26

consideration of the offense . . . .” (Id. at 970.) But as our 

Supreme Court clarified in Anderson, Toro “was quite 

different from the situation we confront in this case” because 

“[u]nlike the defendant in Toro, Anderson derived no 

possible benefit from submitting the unpleaded 25-year-tolife enhancements to the jury. There is therefore no reason 

to presume from defense counsel’s silence that Anderson

consented to this procedure.” (Anderson, supra, 9 Cal.5th at 

959.) Similar to Anderson, and unlike Toro, appellant 

derived no possible benefit from submitting to the jury the

unpled kidnapping special circumstance as applied to Fox’s 

murder.

Finally, in Valenzuela, the defendant was charged with 

murder. (Valenzuela, supra, 199 Cal.App.4th at 1217.) The 

jury found true a special circumstance of shooting from a 

motor vehicle, even though this circumstance was not 

charged in the information. (Id. at 1236.) On appeal, the 

defendant argued this was improper, but the Court of Appeal 

disagreed because the trial court had specifically informed 

counsel it intended to instruct on this special circumstance, 

and defense counsel had stated she had no objection. (Id. at 

1236-1237.) Here, nothing in the record suggests anyone 

asked appellant’s counsel whether he objected to applying 

the kidnapping special circumstance allegation to Fox’s 

murder.
27

3. Resentencing Is Unnecessary

Following Anderson, we conclude the court erred in 

sentencing appellant based on the true finding of an 

uncharged special circumstance. We need not remand for 

resentencing, however, as the mandatory life sentence 

imposed on count one (Fox’s murder) was also based on the 

jury’s true finding under section 190.2(a)(3) (multiple 

murder). This finding is unchallenged. Because correcting 

the court’s error will not alter appellant’s sentence in any 

way, we vacate section 190.2(a)(17) as a basis for appellant’s 

sentence on count one, and remand with directions that the 

court modify the abstract of judgment accordingly. 

Specifically, any reference to section 190.2(a)(17) should 

state it is a basis for the sentence only on count two (Scott’s 

murder). Based on the jury’s true finding of the multiple 

murder special circumstance on count one, appellant 

remains subject to the same life-without-parole sentence on 

that count.

C. The Court Did Not Err in Imposing Fines 

and Fees

Though appellant now argues the court erred in 

imposing various fines and fees at sentencing without 

determining his ability to pay, he admits he failed to object

to these fines and fees in the trial court. We agree with our 

colleagues in Division Eight that a failure to object in the 

trial court forfeits this issue on appeal. (See People v. 

Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155; accord, 
28

People v. Keene (2019) 43 Cal.App.5th 861.) Accordingly, we 

do not consider appellant’s contentions.

D. The Court Did Not Err in Instructing the 

Jury

Appellant contends the court erred by failing to 

instruct the jury that every element of every offense was 

required to be proven beyond a reasonable doubt, and argues 

that the issue is preserved on appeal despite his failure to 

object. Appellant acknowledges that our Supreme Court has 

rejected this argument and that we are obligated to follow its 

decisions. (People v. Covarrubias (2016) 1 Cal.5th 838, 

910-911 [appellant’s failure to object forfeited claim that 

court erred by failing to instruct every element must be 

proved beyond reasonable doubt; in any case, this claim is 

rejected]; People v. Mackey (2015) 233 Cal.App.4th 32, 87 

[“we are bound to follow our state Supreme Court’s 

decisions”].)

E. There Was No Cumulative Error

Appellant argues that “the court’s exclusion of expert 

testimony, combined with its failure to explicitly instruct the 

jury that it must find each element of all crimes and 

allegations proved beyond a reasonable doubt” constituted 

cumulative error that warrants reversal. Because we 

conclude the court did not err in these instances, we find no

cumulative error.
29

DISPOSITION

We vacate the judgment to the extent the true finding 

under section 190.2(a)(17) on count one (Fox’s murder) was a 

basis for appellant’s sentence on that count. On remand, we 

direct the court to modify the abstract of judgment to reflect 

that: (1) section 190.2(a)(17) is the basis for appellant’s 

sentence only as to count two (Scott’s murder); (2) other 

bases for appellant’s sentence on both counts are section 

190.2(a)(3) (not section 190.2(a)(2)) and section 12022.53(d) 

(not section 1202.53(d)); and (3) appellant’s counsel was 

Tyree Campbell (not Tyree A. Almada, DDA). The court 

shall forward this modified abstract of judgment to the 

Department of Corrections and Rehabilitation. In all other 

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J. CURREY, J.