Filed 7/29/15 P. v. Baez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSEPH ANTHONY BAEZ,

 Defendant and Appellant.

 G049120

 (Super. Ct. No. 11ZF0107)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thomas 

M. Goethals, Judge. Affirmed as modified.

Brett Harding Duxbury, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney 

General, Arlene A. Sevidal, Collette Cavalier and Elizabeth M. Carino, Deputy Attorneys 

General, for Plaintiff and Respondent.

* * *
2

While the wife of a fellow gang member was in the midst of a drug 

purchase, defendant and appellant Joseph Baez (defendant) shot and killed the drug 

dealer. Defendant testified that he was afraid the woman, who had gotten into the drug 

dealer’s car, was being kidnapped. During deliberations, two jurors expressed their 

disbelief of defendant’s defense, stating that they had made drug purchases themselves 

and it was commonplace for them to take place in the drug dealer’s moving car. In 

entertaining this discussion the jury did not, as defendant asserts, engage in misconduct

that deprived him of his constitutional rights. Rather, defendant got what he was entitled 

to—a jury of his peers—some of whom had experience in purchasing drugs.

We hold the trial court did not err in denying defendant’s motion for a new 

trial based on juror misconduct. Furthermore, we reject defendant’s arguments that he 

had no notice he should defend against a charge of personal gun use and that the Penal 

Code section 186.22, subdivision (b)(1) gang enhancement was improper. However, we 

agree with defendant’s contentions that the sentence for the Penal Code section 186.22, 

subdivision (a) street terrorism conviction should have been stayed under Penal Code

section 654 and that certain minute orders must be corrected. We also agree with the 

People’s assertion that the abstract of judgment must be corrected to reflect the sentence 

on the street terrorism conviction, but we add that the abstract of judgment must also 

reflect that the sentence is stayed.

I

FACTS

A. Background:

Defendant was a member of the Orange Varrio Cypress gang (OVC). 

Robert Reil was a shotcaller, or gang leader, of OVC. He was married to Amour 

Villamar, a member of the Anaheim Travelers gang, an enemy gang. Villamar was a 

methamphetamine addict.

Villamar and Reil attended a New Year’s party in Orange at the house of 

one of Reil’s “homeboys,” or gang members. They were at the party for a day or two.
3

On the night of the incident, January 3, 2010, while still at the party, 

Villamar wanted to get high, but was out of drugs. She called Bernal Felix, a drug dealer 

from whom she had purchased five or 10 times. He was not her regular dealer, but she 

thought he would come to their location. When she purchased from Felix, she would call 

him on the telephone, he would come in his car, she would get in the car, do the 

transaction, and get out.

Villamar was with Reil and defendant when she called Felix. Defendant 

wanted to know about amounts or prices. Villamar asked Felix to meet her at a particular 

street. Reil asked another OVC gang member, Christian Galindo, to drive them to Oak 

Street, where they were going to meet Felix.

Galindo, Villamar, Reil and defendant drove to Oak Street, which was 

disputed gang territory. Defendant knew there could be trouble if they ran into a rival 

gang. When they got to Oak Street, Villamar got out of the car first. Shortly afterwards, 

defendant and Reil got out of the car as well. Defendant and Reil were both carrying 

guns. Villamar went over to Felix’s car and saw that he had a passenger in his car. It 

was Felix’s friend, Carlos Lopez. Villamar got into the back seat of Felix’s car and told 

him to move the car.

Felix slowly began to pull forward and Villamar saw in the glass the 

reflection of a silhouette, which was not Reil’s. According to Villamar, seconds after the 

car started to move, she heard a loud noise like a window breaking and Felix slumped 

over, screaming in pain. Her first thought was to jump out of the car.

According to Lopez, Felix moved the car “very slowly” in response to 

Villamar’s request. Lopez heard an “explosion” when the car had traveled not more than 

100 meters. Lopez felt pieces of glass fall. Lopez “saw a shadow, and it put a hand 

inside with a pistol. And [the man with the pistol] said, ‘What’s up, homie,’ and he 

fired.” Felix slumped over, Villamar started screaming, and both she and Lopez jumped 

out of the car and ran.
4

According to defendant, he was not expecting there to be two men in 

Felix’s car. He testified he was surprised when Villamar got in the back of the car, 

because he thought she was just going “to pick up the dope and leave.” He also testified 

that he did not expect the car to start moving and he panicked, thinking the men were 

going to kidnap her.

Defendant ran towards Felix’s car and pulled out his gun. He said his 

objective was to stop the car and he broke the windshield with the butt of his gun. When 

he did so, it sounded like an explosion. Defendant testified that he said, “Stop the . . . 

car.” But the car was still moving, so he “struck down again with the gun” and it went 

off. He testified that he did not mean to shoot Felix and he denied having said, “What’s 

up, homie?” Defendant also testified that he later learned his gun had gone off twice, but 

he had not realized it at the time.

When Villamar started to run, she heard Reil call her name and yell at her 

to get in Galindo’s car. Villamar, Reil, Galindo and defendant drove away together. 

According to defendant, Reil started yelling, “‘What . . . happened?’” and defendant 

replied, “What was I supposed to do? I seen him driving away with her.’” Further 

according to defendant, Villamar told Reil she had asked Felix to move the car and Reil 

said it was all her fault.

 Felix died of a gunshot wound. Sometime after the shooting, defendant 

discussed the matter with his girlfriend, Tanya Dominguez. Defendant told her that he, 

Reil, Galindo and Villamar had gone to buy drugs, but it “went wrong.” Defendant 

initially told Dominguez that Reil had shot Felix, but when she pressed him on the point, 

defendant confessed that he himself had done it.

B. Procedural Information:

(1) Indictment and conviction—

Defendant was indicted for murder with malice aforethought (Pen. Code, 

§ 187, subd. (a)), participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), 
5

and four counts of disobeying a court order, i.e., a gang injunction (Pen. Code, § 166, 

subd. (a)(4)). In addition, the amended indictment alleged that defendant intentionally 

committed the murder while participating in a criminal street gang and in furtherance of 

the activities of the gang (Pen. Code, § 190.2, subd. (a)(22)), and while lying in wait 

(Pen. Code, § 190.2, subd. (a)(15)). It further alleged that defendant was a principal in 

the commission of a felony for the benefit of a street gang, and that another principal 

intentionally discharged a firearm causing the death of one who was not an accomplice 

(Pen. Code, §§ 12022.53, subds. (d), (e)(1), 667.5, 1192.7) and that he did so for the 

benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). Finally, it was 

alleged that defendant had a number of prior convictions.

The jury found defendant guilty of second degree murder and street 

terrorism. It further found it true that, during the commission of the murder, defendant 

was a gang member who, either personally or vicariously, had discharged a firearm 

causing death and who had committed the crime for the benefit of the gang. The court 

found a number of prior conviction allegations to be true.

(2) New trial motion—

Before the sentencing took place, defendant’s attorney filed the declaration 

of one of the jurors. The declarant stated that two other jurors had discussed their 

personal drug purchases during deliberations.

Defendant filed a new trial motion based on the declaration. The court 

found there was no juror misconduct. It further determined that the conduct, even were it 

characterized as misconduct, was not prejudicial. The court denied the motion.

(3) Sentencing—

The court originally sentenced defendant to 15 years to life on the count 1 

murder conviction, 25 years to life on the Penal Code section 12022.53, subdivisions (d)

and (e)(1) enhancement, to run consecutively to the sentence on count 1, 10 years on the 

Penal Code section 186.22, subdivision (b)(1) enhancement on count 1, to run 

concurrently with the sentence on count 1, two years on the Penal Code section 186.22, 
6

subdivision (a) street terrorism count 2, to run concurrently with the sentence on count 1, 

and five years for a prior conviction under Penal Code section 667, subdivision (a)(1). 

The court exercised its discretion to strike certain of the prior convictions. The total 

sentence was 45 years to life. 

On October 4, 2013, defendant filed an appeal. On October 22, 2013, the 

court corrected the sentence nunc pro tunc. The court’s minutes reflect that the sentence 

on count 2 (Pen. Code, § 186.22, subd. (a)), was entered in error. The court deleted the 

“disposition of Found Guilty by Jury as to count(s) 2” and dismissed count 2 for “[o]ther 

reason.” The minutes also include an October 22, 2013 entry stating: “DOJ Correction 

Abstract sent.”

The abstract of judgment filed November 13, 2013 reflects the second 

degree murder conviction, the Penal Code section 12022.53, subdivisions (d) and (e)(1) 

enhancement, the Penal Code section 186.22, subdivision (b)(1) enhancement, and the 

Penal Code section 667, subdivision (a)(1) enhancement. It does not show a street 

terrorism (Pen. Code, § 186.22, subd. (a)) conviction.

II

DISCUSSION

A. Juror Misconduct:

(1) Introduction—

Defendant claims the court erred in denying his new trial motion. He 

maintains that two jurors committed misconduct and their misconduct was prejudicial.

“A juror may commit misconduct by receiving or proffering to other jurors 

information about the case that was not received in evidence at trial. [Citation.]” (In re 

Lucas (2004) 33 Cal.4th 682, 696.) “Juror misconduct generally raises a rebuttable 

presumption of prejudice, but ‘[a]ny presumption of prejudice is rebutted, and the verdict 

will not be disturbed, if the entire record in the particular case, including the nature of the 

misconduct or other event, and the surrounding circumstances, indicates there is no 
7

reasonable likelihood that one or more jurors were actually biased against the defendant.’ 

[Citation.]” (Ibid.)

“‘[W]hen misconduct involves the receipt of information from extraneous 

sources, the effect of such receipt is judged by a review of the entire record, and may be 

found to be nonprejudicial. The verdict will be set aside only if there appears a 

substantial likelihood of juror bias. Such bias can appear in two different ways. First, we 

will find bias if the extraneous material, judged objectively, is inherently and 

substantially likely to have influenced the juror. [Citations.] Second, we look to the 

nature of the misconduct and the surrounding circumstances to determine whether it is 

substantially likely the juror was actually biased against the defendant. [Citation.] The 

judgment must be set aside if the court finds prejudice under either test.’ [Citations.]” 

(In re Lucas, supra, 33 Cal.4th at pp. 696-697.)

“We review independently the trial court’s denial of a new trial motion 

based on alleged juror misconduct. [Citation.] However, we will ‘“accept the trial 

court’s credibility determinations and findings on questions of historical fact if supported 

by substantial evidence.”’ [Citation.]” (People v. Gamache (2010) 48 Cal.4th 347, 396.)

(2) Alleged misconduct—

The juror declaration in question stated: “During the jury deliberations 

there was considerable discussion about the testimony of [defendant] where [defendant] 

said he was surprised by the fact that [Amour] Villamar had gotten into the car of the 

drug dealer, Mr. Felix. There was also discussion among the jurors regarding 

[defendant’s] testimony that he believed Ms. Villamar was being kidnapped because Mr. 

Felix’s car began to move with her inside as well as his belief that he felt he needed to act 

to save her. [¶] . . . One of the male jurors told the rest of the jury, during deliberations, 

that he had been a drug user himself. The juror told us that he had personal experience in 

how drug transactions occur. He told us that when he was a drug user he had purchased 

drugs many times, that he personally knew from his own experience, drug deals are 

frequently transacted in the back of cars, and that this is an ‘ordinary expected thing.’ 
8

This juror also said that . . . defendant should not have been ‘surprised’ by Ms. Villamar 

entering Mr. Felix’s vehicle or by anything that happened after she got into the car. The 

juror told all the rest of us (jurors) that because of his own experience in buying drugs 

[defendant’s] testimony wasn’t believable.”

The juror further declared: “After hearing the male juror tell us what his 

own drug usage history was and the knowledge he had gained from his own drug 

purchases, another juror, . . . a woman, stated that based on her own personal knowledge, 

the sale and purchase of drugs frequently occur in cars. She agreed with the male juror 

that [defendant’s] testimony was not believable because her personal experience told her 

that he should not have been surprised by Ms. Villamar getting into Mr. Felix’s car to 

complete the purchase of the drugs. In addition, the vehicle moving with her inside was 

not something that should have caused [defendant] concern because her own experience 

taught her that nothing that happened in this case was out of the ordinary in a drug 

purchase transaction. [¶] . . . After listening to the two jurors describe their personal 

experiences and relate their knowledge of how drug purchases are ordinarily done, the 

majority of the jurors agreed that [defendant] was not credible in regard to his 

testimony.”

(3) Analysis—

The two jurors in question expressed their disbelief in defendant’s 

defense—that he thought he needed to save Villamar because the car was moving and she 

was being kidnapped. They questioned his credibility based on their own personal 

experiences as drug purchasers, and said it was a normal part of a drug buy to make the 

purchase in a moving car.

According to defendant, these two jurors “presented themselves as pseudoexperts: persons who had access to specialized knowledge about the norms of the drug 

trade based on their experiences buying illegal narcotics from small-time, end-user 

dealers . . . .” We disagree.
9

As our Supreme Court has stated: “A juror may commit misconduct by 

receiving or proffering to other jurors information about the case that was not received in 

evidence at trial. [Citation.] We have explained, however, that ‘[i]t is not improper for a 

juror, regardless of his or her educational or employment background, to express an 

opinion on a technical subject, so long as the opinion is based on the evidence at trial. 

Jurors’ views of the evidence, moreover, are necessarily informed by their life 

experiences, including their education and professional work. A juror, however, should 

not discuss an opinion explicitly based on specialized information obtained from outside 

sources. Such injection of external information in the form of a juror’s own claim to 

expertise or specialized knowledge of a matter at issue is misconduct.’ [Citation.]” (In 

re Lucas, supra, 33 Cal.4th at p. 696.)

Here, the jurors were, in effect, expressing their agreement with the expert 

testimony received at trial. As the People point out, expert witness Miguel Cuenca 

testified that it was “very common” for a purchaser to get in the car with a drug dealer in 

order to make the purchase, and for the car to move a short distance while the transaction 

takes place. He explained it was safer to transact business in the car because “you’re not 

stationary. People can’t see you. And you’re moving around. That way, if the local 

agency law enforcement is on surveillance or they’re watching you, it’s easier to go 

mobile . . . . So it’s a lot harder for us to identify that transaction because it’s in a vehicle 

and that vehicle is moving.”

So, the jury already had this expert witness evidence when the two jurors in 

question expressed their disbelief in defendant’s story. Their personal experiences as to 

the manner in which a typical drug purchase takes place were consistent with the 

description of a typical drug buy as given by the expert witness. No doubt their 

conclusions as to defendant’s credibility were reinforced by their own experiences.

As the Lucas court stated: “‘Jurors bring to their deliberations knowledge 

and beliefs about general matters of law and fact that find their source in everyday life 

and experience.’ [Citation.] This experience may stem from education or employment, 
10

but sometimes it comes from other personal experiences. We previously have explained 

that illicit drugs and their effects have become a matter of common knowledge or 

experience, and that ‘[j]urors cannot be expected to shed their backgrounds and 

experiences at the door of the deliberation room.’ [Citations.] Rather, ‘jurors are 

expected to bring their individual backgrounds and experiences to bear on the 

deliberative process.’ [Citation.]” (In re Lucas, supra, 33 Cal.4th at p. 696.)

In In re Lucas, supra, 33 Cal.4th 682, the defendant was convicted of two 

counts of first degree murder and burglary. (Id. at p. 690.) His defense was based on 

having been grossly intoxicated by drugs, including crystal methamphetamine, cocaine 

and heroin. In his habeas corpus petition, the defendant asserted juror misconduct. (Id. 

at p. 688-689, 691-692.) A juror who had personal experience with heroin, cocaine, 

amphetamines, LSD and marijuana said during jury deliberations, “‘Well, I’m not trying 

to tell you anything, but I do have some experience in using drugs, and I’ve seen a lot of 

people use drugs, and I’ve never seen them do what this man has done,’ that is, 

‘slaughtering his next door neighbors.’” (Id. at p. 694.) The juror’s “own opinion was 

that [the] petitioner’s crimes were not caused by his drug use.” (Id. at p. 695.) The 

Supreme Court concluded that the juror’s statements merely reflected his background and 

experiences. (In re Lucas, supra, 33 Cal.4th at pp. 689, 697.) It stated: “We observe 

that a juror’s statement that a defendant’s sole defense is not credible does not, of course, 

by itself constitute misconduct. [T]he evidence does not suggest that [the juror] brought 

highly technical information before the jury.” (Id. at p. 697.) The court continued, “[the 

juror] did not hold himself out as an expert in a technical matter on the basis of his 

education or occupation, but merely related his own experience. Under the 

circumstances, [the juror’s] apparently brief comments merely reflected his own 

experience as it related to the evidence received at the trial and the inferences that [the]

petitioner sought to have the jurors draw from that evidence. His experience, although 

not shared by the majority of persons, is fairly common.” (Ibid.)
11

The matter before us is similar. The jury had received expert testimony on 

typical drug buys and two jurors had themselves experienced typical drug buys. These 

two jurors were not holding themselves out as technical experts. Rather, they simply 

related their own experiences in making drug purchases—an activity that is fairly 

common these days.

Defendant contends that this case is dissimilar to In re Lucas, supra, 33 

Cal.4th 682, because the situation there dealt with experience in simple drug usage, 

whereas the matter here has to do with “a more esoteric body of knowledge”—the 

“norms of buying drugs[.]” This begs the question whether the average drug user 

acquires drugs without buying them. 

In any event, we conclude that the two jurors did not commit misconduct 

when they shared their personal experiences, consistent with expert testimony. That 

being the case, we need not address the question of prejudice. We nonetheless choose to 

address whether the sharing of their personal experiences could have been prejudicial 

under the circumstances.

(4) Prejudice—

Our Supreme Court has stated: “‘When juror misconduct involves the 

receipt of information about a party or the case from extraneous sources, the verdict 

will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] 

Such bias may appear in either of two ways: (1) if the extraneous material, judged 

objectively, is so prejudicial in and of itself that it is inherently and substantially likely to 

have influenced a juror; or (2) even if the information is not “inherently” prejudicial, if, 

from the nature of the misconduct and the surrounding circumstances, the court 

determines that it is substantially likely a juror was “actually biased” against the 

defendant. If we find a substantial likelihood that a juror was actually biased, we must 

set aside the verdict . . . .’” (In re Boyette (2013) 56 Cal.4th 866, 890-891.)

In In re Boyette, supra, 56 Cal.4th 866, a death row defendant filed a 

habeas corpus petition based in part on juror misconduct. The referee found that two 
12

jurors had committed misconduct when, at the instance of a third juror, they watched a 

movie on the prison system in order to gain insight into “the realities of life in prison.” 

(Id. at pp. 891-892.) The respondent conceded that the jurors had committed misconduct. 

(Id. at p. 892.)

The Supreme Court determined that the jurors’ conduct in that case did not 

establish a substantial likelihood of juror bias. (In re Boyette, supra, 56 Cal.4th at p. 

892.) The court first determined that the content of the movie was not the type of 

“evidence that, ‘judged objectively, [was] so prejudicial in and of itself that it [was] 

inherently and substantially likely to have influenced a juror.’ [Citation.]” (Ibid.) “The 

information, for example, was not of a suppressed confession or evidence of other crimes 

that the trial court had excluded as too prejudicial. [Citations.] It was not akin to a bell 

that could not be unrung.” (Id. at pp. 892-893.)

The court continued on to state the movie was one at least two other jurors 

had already seen and the most that could be said was that the jurors who engaged in 

misconduct “may have learned some general information about prison life that some of 

the other jurors already knew . . . .” (In re Boyette, supra, 56 Cal.4th at p. 893.) The 

court also concluded the record did not show “that ‘from the nature of the misconduct 

and the surrounding circumstances, . . . it [was] substantially likely a juror was “actually 

biased” against’ [the] petitioner. [Citation.]” (Id. at p. 893.)

Similarly, in the matter before us, the information the two jurors 

imparted—that in their experience it was commonplace for a drug purchaser to get into 

the backseat of the drug dealer’s vehicle and for the driver to move the car—was not 

prejudicial in and of itself. The information “was not of a suppressed confession or 

evidence of other crimes that the trial court had excluded as too prejudicial. [Citations.] 

It was not akin to a bell that could not be unrung.” (In re Boyette, supra, 56 Cal.4th at 

pp. 892-893.)

Furthermore, given the surrounding circumstances, notably that the 

information provided by the jurors was the same as that provided by the expert witness, it 
13

is not substantially likely that the jurors were “actually biased” against defendant. The 

substantial likelihood of actual bias “‘standard is a pragmatic one, mindful of the “day-today realities of courtroom life” [citation] and of society’s strong competing interest in the 

stability of criminal verdicts [citations]. It is “virtually impossible to shield jurors from 

every contact or influence that might theoretically affect their vote.” [Citation.] 

Moreover, the jury is a “fundamentally human” institution; the unavoidable fact that 

jurors bring diverse backgrounds, philosophies, and personalities into the jury room is 

both the strength and the weakness of the institution. [Citation.] “[T]he criminal justice 

system must not be rendered impotent in quest of an ever-elusive perfection. . . . [Jurors] 

are imbued with human frailties as well as virtues. If the system is to function at all, we 

must tolerate a certain amount of imperfection short of actual bias.”’ [Citation.]” (In re 

Boyette, supra, 56 Cal.4th at p. 897.)

Defendant maintains that “[t]here remains a substantial likelihood that the 

two jurors’ misconduct actually biased at least one juror against [him].” This is because, 

he asserts, the majority of jurors did not agree defendant was lacking in credibility until 

after the two jurors in question had expressed their views.

However, as the People aptly retort, Evidence Code section 1150, 

subdivision (a) provides: “Upon an inquiry as to the validity of a verdict, any otherwise 

admissible evidence may be received as to statements made, or conduct, conditions, or 

events occurring, either within or without the jury room, of such a character as is likely to 

have influenced the verdict improperly. No evidence is admissible to show the effect of 

such statement, conduct, condition, or event upon a juror either in influencing him to 

assent to or dissent from the verdict or concerning the mental processes by which it was 

determined.” (Italics added.) In short, to draw conclusions about the significance jurors 

attached to the information they heard would be an “improper intrusion[] into the 

subjective reasoning process of the jurors in violation of Evidence Code section 1150. 

[Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 250.)
14

B. Sentencing Errors:

(1) Gun enhancement based on amended indictment—

The amended indictment states: “As to Count(s) 1, it is further alleged 

pursuant to Penal Code sections 12022.53 (d) and (e)(1) (GANG MEMBER 

VICARIOUS DISCHARGE FIREARM CAUSING DEATH), . . . defendant JOSEPH 

ANTHONY BAEZ was a principal in the commission of a felony, . . . and that during the 

commission and attempted commission of the above offense, another principal

intentionally discharged a firearm causing death . . . .”1 (Italics added.)

The jury verdict on the Penal Code section 12022.53 enhancement states: 

“We the Jury in the above-entitled action FIND IT TO BE TRUE that the Defendant, 

JOSEPH ANTHONY BAEZ, was a gang member who personally or vicariously 

discharged a firearm causing Death . . . .” (Italics added.)

In a further briefing order,2 we requested that the parties brief the 

significance “of the conflict in the language of the amended indictment, concerning the 

discharge of a firearm by ‘another principal,’ and the language of the jury verdict that 

[defendant] ‘personally or vicariously’ discharged a firearm.” (Italics added.)

 

1 Penal Code section 12022.53, subdivision (d) provides: “Notwithstanding 

any other provision of law, any person who, in the commission of a felony . . . , 

personally and intentionally discharges a firearm and proximately causes great bodily 

injury . . . 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.” 

Penal Code section 12022.53, subdivision (e)(1) states: “The enhancements provided in 

this section shall apply to any person who is a principal in the commission of an offense 

if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) 

of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in 

subdivision (b), (c), or (d).”

2 By order dated March 20, 2015, this court vacated submission and 

requested supplemental briefing on five points. (Cal. Rules Court, rule 8.256(e)(1).) 

Four of those issues arose out of the October 22, 2013 nunc pro tunc order and one arose 

out of the amended indictment.
15

In his supplemental letter brief, defendant cites Penal Code section 

12022.53, subdivision (j), which provides: “For the penalties in this section to apply, the 

existence of any fact required under subdivision (b), (c), or (d) 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. . . .” Defendant says he “had no occasion to defend against an 

allegation that he personally discharged the gun because no such allegation was ever 

lodged by the indictment or the instructions.” We disagree with this characterization of 

the record.

“‘The [indictment] must be given a reasonable interpretation and read as a 

whole with its parts considered in their context. [Citation.]’” (People v. Keating (1993) 

21 Cal.App.4th 145, 150-151; accord, People v. Biane (2013) 58 Cal.4th 381, 388.) By 

citing subdivision (d) of Penal Code section 12022.53, the amended indictment put 

defendant on notice that it would be argued he personally discharged the gun and should 

be subjected to the subdivision (d) enhancement. By also citing subdivision (e)(1) of 

section 12022.53, the People preserved the argument that defendant should also be 

subjected to the gun use enhancement as a principal if, following a trial and the 

presentation of evidence, the jury found that Reil, who was also at the scene with a gun, 

was the one who had fired the fatal shot. The jury verdict form was consistent with the 

amended indictment in that it stated defendant either personally or vicariously fired the 

gun.

“A defendant has a due process right to fair notice of the allegations that 

will be invoked to increase the punishment for his or her crimes. [Citation.]” (People v. 

Houston (2012) 54 Cal.4th 1186, 1227.) However, even when the indictment fails to 

allege each fact required by the statute in question, that does not mean the defendant’s 

due process rights have been violated. (Id. at pp. 1225-1229.) “California’s system of 

criminal pleading under [Penal Code] section 952 relies in part upon the transcript of the 

grand jury hearing or preliminary examination which must be furnished to the defendant 

to inform him of particular circumstances of his offense not shown by the accusatory 
16

pleading. [Citations.]” (People v. Jordan (1971) 19 Cal.App.3d 362, 369.) Thus, the 

defendant “learn[s] the details of the charges filed against him” from the transcript of the 

proceedings. (People v. Jones (1990) 51 Cal.3d 294, 318-319.) It is the transcript that 

provides the “defendant practical notice of the criminal acts against which he must 

defend.’ [Citation.]” (People v. Butte (2004) 117 Cal.App.4th 956, 959, italics omitted.)

In the matter before us, the grand jury transcript includes the testimony of 

Dominguez. She testified that defendant initially said Reil was the one who had shot 

Felix, but later confessed that he himself was the one who had done it. Defendant was 

clearly on notice that he needed to defend against an allegation that he was the shooter, 

both with respect to the count 1 murder charge and the Penal Code section 12022.53, 

subdivision (d) enhancement allegation.

Indeed, at trial defendant confessed to being the shooter. He defended 

himself by contending the shooting was accidental, justifiable homicide, or imperfect 

defense of another. He was obviously on notice that he needed to defend against the 

allegation that he was the shooter. Consequently, the ambiguity in the amended 

indictment did not violate his due process rights.

Furthermore, to the extent the inconsistency between the citation to Penal 

Code section 12022.53, subdivision (d) and the verbiage of the amended indictment about 

the discharge of a firearm by “another principal” created confusion as to the offense of 

which defendant was accused, even when viewed against the backdrop of the grand jury 

transcript, defendant could have filed a demurrer. (Pen. Code, §§ 952, 1004; People v. 

Biane, supra, 58 Cal.4th at p. 388; People v. Keating, supra, 21 Cal.App.4th at pp. 150-

151; People v. Jordan, supra, 19 Cal.App.3d at pp. 369-370.) Having failed to do so, he 

has waived any objection that he did not have adequate notice of the charged offense. 

(Pen. Code, § 1012; People v. Biane, supra, 58 Cal.4th at p. 388.)

As a final note, we observe that, in response to our question regarding the 

conflict between the amended indictment and the jury verdict form, defendant raised an 

unrelated issue. That is, he said he “had no occasion to defend against an allegation that 
17

he personally discharged the gun because no such allegation was ever lodged by the 

indictment or the instructions.” (Italics added.) Of course, as we have already discussed, 

defendant did defend against the allegation, by contending the shooting was accidental, 

justifiable homicide, or imperfect defense of another. Therefore, his argument that he 

had no opportunity to defend against the allegation is refuted.

(2) Imposition of both gun and gang enhancements—

As mentioned previously, the court sentenced defendant to 25 years to life 

on the Penal Code section 12022.53, subdivisions (d) and (e)(1) gun enhancement, to run 

consecutively to the sentence on count 1, and to 10 years on the Penal Code section 

186.22, subdivision (b)(1) gang enhancement, to run concurrently with the sentence on 

count 1. Defendant, citing Penal Code section 12022.53, subdivision (e)(2), claims the 

court erred in imposing the gang enhancement. 

Penal Code section 12022.53, subdivision (e)(2) provides: “An 

enhancement for participation in a criminal street gang pursuant to . . . Section 186.20 [et 

seq.] . . . shall not be imposed on a person in addition to an enhancement imposed 

pursuant to this subdivision, unless the person personally used or personally discharged a 

firearm in the commission of the offense.”

Defendant contends it was error to impose the Penal Code section 186.22, 

subdivision (b)(1) gang enhancement when the jury did not find that he personally was 

the one who shot Felix. He emphasizes that the jury found that he “personally or 

vicariously discharged” the gun. (Italics added.)

Defendant further asserts that the amended indictment alleged only the

vicarious version of the Penal Code section 12022.53 enhancement and that the jury 

instructions were based on vicarious discharge as well. As we have stated previously, 

however, the amended indictment cited both Penal Code section 12022.53, subdivisions 

(d) and (e)(1)—the personal and vicarious grounds for enhancement. 

As for the jury instructions on the Penal Code section 12022.53 

enhancement, the jury was instructed: “If you find the defendant guilty of the crime 
18

charged in Count 1 . . . and you find that the defendant committed that crime for the 

benefit of . . . a criminal street gang . . . , you must then decide whether, for that crime, 

the People have proved the additional allegation that one of the principals personally used 

a firearm during that crime and caused death. . . . [¶] To prove this allegation, the People 

must prove that: [¶] 1. Someone who was a principal in the crime personally used a 

firearm during the commission of the murder or manslaughter . . . .” The instruction 

further stated: “A person is a principal in a crime if he directly commits or attempts to 

commit the crime or if he aids and abets someone else who commits or attempts to 

commit the crime.”

These jury instructions did not, as defendant contends, preclude the jury 

from finding that he personally discharged the gun. The jury need only have found that 

he directly committed or attempted to commit the crime, in which case he was a 

principal, and that he personally discharged the firearm. We do, however, agree that the 

verdict form did not ask the jury to specify whether it found that he personally discharged 

the gun. At the same time, defendant himself admitted at trial that he was the shooter and 

his counsel conceded the point, both when the proposed jury instructions were being 

discussed among counsel and the court, and when arguing before the jury.

Defendant, citing People v. Salas (2001) 89 Cal.App.4th 1275, contends 

that because the jury did not make a specific finding that he was the shooter, a reversal of 

the Penal Code section 186.22 enhancement is required. In Salas, the court applied Penal 

Code section 12022.53, subdivision (e)(2) to reverse a Penal Code section 186.22 

enhancement where the defendant “was never found to have personally used a firearm 

. . . .” (People v. Salas, supra, 89 Cal.App.4th at p. 1281.) However, in that case, 

“[t]here was no unequivocal direct evidence as to the identity of the person who actually 

fired the shots that struck [the victim].” (Id. at p. 1278.) In the case before us, in 

contrast, defendant admitted that he shot Felix.
19

Furthermore, as defendant acknowledges in his supplemental letter brief, 

Penal Code section 12022.53, subdivision (j) provides: “For the penalties in this section 

to apply, the existence of any fact required under subdivision (b), (c), or (d) 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. . . .” (Italics added.) Here, defendant admitted in 

open court that he was the shooter. This admission supports a finding of personal 

discharge of a firearm and the imposition of a gun enhancement under section 12022.53, 

subdivision (d). Section 12022.53, subdivision (e)(2), then, is inapplicable.

“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. It must be upheld 

when, if so construed, it expresses with reasonable certainty a finding supported by the 

evidence [citation].” (People v. Radil (1977) 76 Cal.App.3d 702, 710; accord, People v. 

Jones (1997) 58 Cal.App.4th 693, 710-711.) Here, defendant admitted to being the 

shooter. In closing argument, counsel for both the People and defendant repeatedly 

reminded the jury of defendant’s admission. Counsel for the People argued that 

defendant had no excuse for the killing and should be found guilty of murder. 

Defendant’s counsel argued that defendant shot Felix by accident, or by justifiable 

homicide or imperfect defense of another, and should not be found guilty. In other 

words, because defendant conceded that he shot Felix, the question put to the jury was 

whether he committed murder or whether he had a defense to the charge. Given this, the 

verdict form, although stating defendant “personally or vicariously discharged a firearm” 

cannot reasonably be construed as containing a finding that someone other than defendant 

shot Felix. (People v. Radil, supra, 76 Cal.App.3d at p. 710; People v. Jones, supra, 58 

Cal.App.4th at pp. 710-711.)

As a final point, defendant’s citation to Penal Code section 1157 and 

related cases is unavailing. That statute, pertaining to the requirement that the trier of 
20

fact affix the degree of a crime, is inapposite.3

(3) Concurrent sentence for street terrorism—

(a) Nunc pro tunc orders and erroneous abstract of judgment

The People assert that the trial court properly imposed a two-year sentence 

on the street terrorism conviction, to run concurrently with the sentence on the murder 

conviction, but that the abstract of judgment fails to reflect the street terrorism sentence. 

They are correct.

As noted above, 18 days after defendant filed his notice of appeal, the court 

entered an order changing the judgment. The minutes state: “STATE PRISON sentence 

as to count(s) 2 entered in error. (Entered NUNC_PRO_TUNC on 10/22/13[.]) [¶] 

Count disposition of Found Guilty by Jury deleted as to count(s) 2. (Entered 

NUNC_PRO_TUNC on 10/22/13[.]) [¶] Count(s) 2 DISMISSED – Other reason. 

(Entered NUNC_PRO_TUNC on 10/22/13[.])” The minutes also state: “DOJ Correction 

Abstract sent.”

In our further briefing order, we asked the parties to file supplemental letter 

briefs “addressing: (1) the effect of the above-referenced nunc pro tunc orders; (2) 

whether the trial court had the jurisdiction to enter the nunc pro tunc orders while the 

appeal was pending; (3) whether the defendant’s challenge to the two-year sentence on 

count 2 is moot; and (4) whether the [People] can challenge the fact that the abstract of 

judgment fails to show a conviction and sentence on count 2 when the [People] failed to 

file an appeal.”

As shown in their supplemental briefing, the parties agree that the trial 

court was without jurisdiction to enter the nunc pro tunc orders in question after 

 

3 Penal Code section 1157 provides: “Whenever a defendant is convicted of 

a crime or attempt to commit a crime which is distinguished into degrees, the jury, or the 

court if a jury trial is waived, must find the degree of the crime or attempted crime of 

which he is guilty. Upon the failure of the jury or the court to so determine, the degree of 

the crime or attempted crime of which the defendant is guilty, shall be deemed to be of 

the lesser degree.”
21

defendant had filed his notice of appeal. As our Supreme Court has made clear, “‘“[t]he 

filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until 

determination of the appeal and issuance of the remittitur” [citation] and deprives the trial 

court of jurisdiction to make any order affecting the judgment [citation].’ [Citation.]” 

(People v. Wagner (2009) 45 Cal.4th 1039, 1061.) The parties also agree that there are 

certain exceptions to this rule, but that they do not apply in the present case. 

“‘It is not open to question that a court has the inherent power to correct 

clerical errors in its records so as to make these records reflect the true facts. [Citations.] 

The power exists independently of statute and may be exercised in criminal as well as in 

civil cases. [Citation.] The power is unaffected by the pendency of an appeal . . . . 

[Citation.] The court may correct such errors on its own motion or upon the application 

of the parties.’ [Citation.] Courts may correct clerical errors at any time, and appellate 

courts . . . 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. [Citations.]” (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

The parties agree that the nunc pro tunc orders in question did not serve to 

correct clerical errors. Certainly, they are correct. To delete a jury’s guilty verdict and 

dismiss a count after judgment has been entered is not to correct a clerical error. 

Consequently, we hold the nunc pro tunc orders were void, and of no effect. That being 

the case, defendant’s challenge to the sentence as originally pronounced on count 2 is not 

moot, as the parties also agree. 

The parties further agree that even though the People did not file an appeal, 

they are not precluded from pointing out the clerical error in the abstract of judgment, 

which does not show a conviction and sentence on count 2. This is so, the parties 

observe, because this court always has the power to correct a clerical error, whether on its 

own motion or at the request of a party. (People v. Mitchell, supra, 26 Cal.4th at p. 185.) 

It matters not that the People were the first to note that the abstract of judgment does not 

reflect the original sentencing order on count 2. We, too, agree. This court is now aware 
22

of the matter and may address it irrespective of which party first drew attention to the 

matter.

We do so now. We conclude the court was without jurisdiction to enter its 

nunc pro tunc order declaring the street terrorism sentence to be erroneous, and 

consequently, that order is void. The abstract of judgment must be corrected to reflect 

the concurrent two-year sentence for street terrorism. That is not the only way in which 

the abstract must be changed, however, as we shall now discuss.

(b) Penal Code section 654 stay

Defendant agrees with the trial court’s apparent conclusion that the street 

terrorism sentence was improper. He says it should have been stayed under Penal Code 

section 654 and People v. Mesa (2012) 54 Cal.4th 191. 

Penal Code section 654, subdivision (a) provides: “An act or omission that 

is punishable in different ways by different provisions of law shall be punished under the 

provision that provides for the longest potential term of imprisonment, but in no case 

shall the act or omission be punished under more than one provision. . . .” “Section 654 

thereby bars the imposition of multiple sentences for a single act or omission, even 

though the act or omission may violate more than one provision of the Penal Code. 

[Citation.] This is true even where the court orders multiple sentences to be served 

concurrently. ‘It has long been established that the imposition of concurrent sentences is 

precluded by section 654 [citations] because the defendant is deemed to be subjected to 

the term of both sentences although they are served simultaneously.’ [Citation.] Instead, 

the accepted ‘procedure is to sentence defendant for each count and stay execution of 

sentence on certain of the convictions to which section 654 is applicable.’ [Citation.]” 

(People v. Dowdell (2014) 227 Cal.App.4th 1388, 1413-1414.)

In People v. Mesa, supra, 54 Cal.4th 191, the Supreme Court held the trial 

court erred in failing to stay Penal Code section 186.22, subdivision (a) sentences for 

active participation in a street gang, where the defendant was also sentenced for assault 

with a firearm and possession of a firearm by a felon, and each sentence was based on the 
23

same act of shooting a victim. (Id. at pp. 193, 195, 197.) The court observed that 

“‘section 654 precludes multiple punishment for both (1) gang participation, one element 

of which requires that the defendant have “willfully promote[d], further[ed], or assist[ed] 

in any felonious criminal conduct by members of th[e] gang,” [citation] and (2) the 

underlying felony that is used to satisfy this element of gang participation.’ [Citation.]”

(Id. at pp. 197-198.) It further stated this rule “limit[s] punishment for the offense to 

circumstances in which the defendant’s willful promotion, furtherance, or assistance of 

felonious conduct by a gang member was not also the basis for convicting the defendant 

of a separate offense . . . .” (Id. at p. 198.)

Defendant in the matter before us asserts that his act of killing Felix was the 

basis of both the street terrorism conviction and the murder conviction, so Penal Code 

section 654 and People v. Mesa, supra, 54 Cal.4th 191 should be applied to require the 

stay of his sentence on the street terrorism conviction. The People disagree, contending 

that when defendant killed Felix he harbored a separate intent, which was not incidental 

to the murder, to assist fellow gang members in the commission of a robbery. They 

explain that the murder charge was tried under theories of malice aforethought and felony 

murder during an attempted robbery and they claim that there was an implied finding that 

defendant “assisted his fellow gang members in the commission of an attempted 

robbery.” They extrapolate that because defendant was convicted of murder, but not also 

attempted robbery, People v. Mesa, supra, 54 Cal.4th 191 is inapposite.

We disagree with the People’s argument and their characterization of the 

record. It is true the jury was instructed that murder could be predicated on either malice 

aforethought or felony murder, with the felony in question being either robbery or 

attempted robbery. However, had the jury found that defendant was participating in 

either a robbery or an attempted robbery when he killed Felix, it would have been 

required to find that he committed murder in the first degree. (Pen. Code, § 189; People 

v. Mendoza (2000) 23 Cal.4th 896, 908.) But the jury did not so find. It found that he 

committed murder in the second degree. This being the case, the jury must have 
24

determined that defendant was not involved in a robbery or attempted robbery at the time 

he shot Felix.

Moreover, in instructing the jury on active participation in a street gang 

(Pen. Code, § 186.22, subd. (a)), the court stated that one of the elements of the crime 

was that defendant “willfully assisted, furthered, or promoted felonious criminal conduct 

by members of the gang . . . .” It defined “felonious criminal conduct” as “committing or 

attempting to commit any of the following crimes: robbery, and or murder.” As we have 

already observed, the jury did not find that defendant committed or attempted to commit 

either robbery or attempted robbery, or it would have found him guilty of first degree 

murder. Consequently, it must have found that the felonious conduct in which defendant 

engaged was murder. 

In other words, defendant’s act of killing Felix was, just as he argues, used 

both to support his conviction and sentence for second degree murder and to serve as the 

felonious conduct on which the active gang participation conviction and sentence were

based. We reject the People’s argument to the contrary. The court should have stayed 

the sentence on the street terrorism conviction.

C. Erroneous Minute Order:

As defendant duly points out, at the court trial on prior convictions, the 

court found one of the alleged prior convictions not true, for technical reasons. It was a 

2004 prior conviction. However, the minute order erroneously states both that the 2004 

prior conviction was found true and that the court exercised its discretion to strike it. 

Defendant requests that this court direct the trial court to issue a new minute order 

correcting the two clerical errors.

The People agree that “the minute order is inconsistent with the trial court’s 

oral pronouncement” in both respects and that the errors should be corrected. So do we. 

(People v. Mitchell, supra, 26 Cal.4th at p. 185; People v. Zackery (2007) 147

Cal.App.4th 380, 385-386.) We order the minutes corrected to delete the erroneous 
25

statements that the court found the 2004 prior conviction to be true and that it exercised 

its discretion to strike the 2004 prior conviction. (People v. Zackery, supra, 147 

Cal.App.4th at p. 386.)

III

DISPOSITION

The matter is remanded to the trial court with directions to correct its 

minute order to delete the erroneous statements that it found the 2004 prior conviction to 

be true and that it exercised its discretion to strike that conviction, and to reflect instead 

that it found the 2004 prior conviction to be not true. The trial court is further directed to 

amend the abstract of judgment to reflect the concurrent two-year sentence on the Penal 

Code section 186.22, subdivision (a) conviction and to further reflect that the sentence on 

that conviction is stayed. The trial court shall forward a certified copy of the amended 

abstract to the Department of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.