1

Filed 7/16/15 P. v. Araiza CA3

NOT TO BE PUBLISHED

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MIGUEL ARAIZA, JR.,

Defendant and Appellant.

C075801

(Super. Ct. No. SF119827A)

On the night of March 10, 2012, Osvaldo Jaramillo drove his girlfriend Angelica 

Osorio to her Lodi home after the couple spent much of the day together. As the couple 

stood in the street before parting ways for the evening, a car stopped nearby. Defendant 

Miguel Araiza, Jr., a member of the Norteño criminal street gang in Lodi, got out of the 

car carrying a rifle. Defendant fired several shots, killing Osorio and wounding 

Jaramillo.
2

A jury convicted defendant of murder in the first degree (Pen. Code, § 187 

(Count 1)),1 attempted willful, deliberate and premeditated murder (§§ 664/187, subd. (a) 

(Count 2)), possession of methamphetamine (Health & Saf. Code, § 11377 (Count 3)),

and active participation in a criminal street gang (§ 186.22, subd. (a) (Count 4)). The jury 

found true a personal use of a firearm enhancement (§ 12022.5, subd. (a)) and a gangcrime special circumstance allegation (§ 190.2, subd. (a)(22)) in connection with Count 1. 

In connection with Counts 1 and 2, the jury found true allegations of personal use of a 

firearm causing great bodily injury or death (§ 12022.53, subd. (d)), commission of a 

felony for the benefit of, at the direction of, or in association with a criminal street gang 

(§ 186.22, subd. (b)(1)), and that defendant was a juvenile who personally killed the 

victim (Welf. & Inst. Code, § 602, subd. (b)(1)). In connection with Count 2, the jury

also found true an uncharged enhancement for great bodily injury (§ 12022.7, subd. (a)) 

and an allegation pursuant to Welfare and Institutions Code section 707, 

subdivision (d)(1).

On appeal, defendant asserts that: (1) the prosecutor committed misconduct 

during her closing argument by vouching for the integrity of the police investigation and 

for the credibility of witnesses, and by denigrating the defense; (2) the trial court violated 

his right to counsel when it precluded defense counsel from commenting during closing 

argument that the prosecution did not present evidence that defendant admitted to 

committing the crimes; (3) the trial court erred in imposing a sentence pursuant to section 

12022.7, subdivision (a), where a corresponding allegation was not set forth in the 

information; and (4) the imposition of a concurrent term of 25-years-to-life imprisonment 

pursuant to section 190.2, subdivision (a)(22), was unauthorized, and that this sentence 

must be stricken.

 

1

 Further undesignated statutory references are to the Penal Code in effect at the time of 

the charged offenses.
3

Defendant forfeited the majority of his claims alleging prosecutorial misconduct. 

Those claims he did not forfeit are without merit. The trial court did not err when it 

precluded defense counsel’s argument that the prosecution had not presented evidence 

that defendant admitted commission of the crimes. Defendant also forfeited his claim 

concerning the imposition of a sentence pursuant to section 12022.7, subdivision (a). 

However, pursuant to section 12022.53, subdivision (f), that sentence must be stayed. 

Finally, we agree with defendant and the People that the additional sentence imposed 

pursuant to section 190.2, subdivision (a)(22), must be stricken.

FACTUAL AND PROCEDURAL BACKGROUND

Trial Evidence

The Shooting and Investigation

Osvaldo Jaramillo2 was 18 years old at the time of the trial. He knew defendant 

because they had attended Lodi Middle School together. Jaramillo knew defendant to be 

associated with the Norteño criminal street gang. Jaramillo acknowledged that, when he 

was in middle school, he was “associated with associates” who were members of criminal 

street gangs. Because Jaramillo spent time with members of the Sureño criminal street 

gang, he had problems with members of the Norteño criminal street gang “[a]ll the time.” 

Jaramillo and his friends would “go over to the other side with -- with the enemies,” 

meaning the Norteños, and start fights. However, Jaramillo never had any problem with 

defendant. 

Angelica Osorio was Jaramillo’s girlfriend. Jaramillo and Osorio dated for 

approximately one and one-half years. By this time, Jaramillo was no longer associating 

with gang members. He stopped associating with Sureño gang members after he met 

Osorio because he fell in love with her and did not have time for anything else. 

 

2

Jaramillo’s first name is misspelled “Alsvado” in the Reporter’s Transcript.
4

On March 10, 2012, Jaramillo and Osorio spent much of the day together. After 

watching movies at Jaramillo’s house until 10:00 or 11:00 p.m., they drove back to 

Osorio’s house. When they arrived, they got out of the car, said goodnight, and hugged. 

Jaramillo then heard a car stop nearby. He observed a dark 1990’s Honda Accord 

stopped at a stop sign. Someone got out of the passenger side of the vehicle holding a 

large, long object and walked over to Jaramillo and Osorio. Jaramillo froze, holding onto 

Osorio. The individual pointed what Jaramillo called an assault rifle3 at Jaramillo and 

Osorio, and asked Jaramillo where he was from. Jaramillo recognized the individual was 

defendant. According to Jaramillo, by asking where he was from, defendant was asking 

about gang affiliation. Jaramillo responded, “ ‘Nowhere. I don’t want any problem, 

please.’ ” Jaramillo screamed for help and ran. As he started running, Jaramillo heard “a 

lot” of gunshots, and he heard defendant say, “ ‘Fuck you, scrap,’ ” invoking a 

derogatory term Norteños use against Sureños. Jaramillo fell and he realized that he had 

been shot. He screamed for help, and when people responded, he told them to call 911. 

Jaramillo called to Osorio, but she did not respond and was not moving. 

Responding police and paramedics found Osorio bleeding from the mouth, 

unconscious, and without a pulse. She was taken to a hospital where she later died as the 

result of a gunshot wound to her trunk. Although the bullet recovered from Osorio’s 

body was “markedly deformed,” based on its measurements, the caliber of the bullet was 

estimated to be .21 or .22. 

Jaramillo testified that when police arrived, he told them everything he knew 

about the incident. Lodi Police Corporal Dale Eubanks attended to Jaramillo on the 

scene. Eubanks testified that Jaramillo told him that “Miguel” did it, and that he knew 

Miguel from Lodi Middle School. Jaramillo did not know Miguel’s last name. Based on 

 

3

 Jaramillo called it an assault rifle because the firearm “was long, dark colored, [and] 

shot really fast.” 
5

information provided by Jaramillo, Eubanks directed officers to look for a gray 1994 or 

1995 Honda and he broadcasted the suspect’s first name. Police recovered six .22-caliber 

shell casings from the scene. 

Jaramillo had been shot four times, sustaining gunshot wounds to his chest, his 

right side, and two to his right upper thigh and buttock. He also sustained fractures to a 

rib and his right hip. 

At the hospital, Jaramillo gave a statement to Officer Michael Mantzouranis as to 

the identity of the person who shot him. Mantzouranis relayed that information to 

Detective Ricardo Garcia, the detective assigned to the case. Subsequently, Garcia sent 

Mantzouranis an email containing a “six-pack photo lineup.” Mantzouranis showed 

Jaramillo the photo lineup. Jaramillo circled the defendant’s photograph and initialed the 

paper. He told officers that he was “a hundred percent sure who it was.”4

Detective Carlos Fuentes, a gang detective in the Lodi Police Department, went to 

defendant’s house on March 11, 2012, the day after the shooting, looking for defendant, 

but did not locate him. Fuentes returned the next day, and, while he was there, defendant 

called his mother’s mobile phone. Fuentes answered the call and told defendant that he 

needed to speak with him. Defendant told Fuentes that he was in Modesto, on his way to 

Mexico. 

On the morning of March 11, 2012, Detective Garcia participated in the search of 

defendant’s residence. Garcia discovered “a lot of black, red and white clothing, and . . . 

a Cincinnati Reds hat.” Garcia testified that red, white, and black are colors commonly 

worn by Norteño gang members. Cincinnati Reds hats are commonly worn by members 

of the South Central Norteños to identify themselves as members, with the “C” 

representing “Central.” Garcia also observed a Champion jacket, which a “lot of South 

 

4

 Jaramillo acknowledged that, during the investigation, he provided an incorrect last 

name for defendant. 
6

Central Nortenos will wear [] to represent Central.” Additionally, Garcia found a Norcal 

shirt with an image of a Huelga bird. The Huelga bird is the symbol of the United Farm 

Workers. The Nuestra Familia, a prison gang for which Norteños serve as street soldiers 

and to whom Norteños pay “taxes,” adopted the symbol to represent the gang. Garcia 

also discovered a plastic bindle containing a white, crystal-like substance. 

On March 12, 2012, Lodi Police Officer Jose Nuno and several other officers 

stopped a green Camaro in which defendant was a passenger. There were four 

individuals in the Camaro. Defendant was seated in the back seat on the passenger side. 

After the individuals had been removed from the Camaro, police performed an inventory 

search. On the floor near where defendant had been seated, Nuno found a key card to 

room 214 at the Delta Royal Hotel. Lodi Police Sergeant Stephen Maynard recovered a 

digital scale and an orange pill bottle in the car, also on the floorboard where defendant 

had been seated. The pill bottle contained two bindles containing an off-white crystalline 

substance. One of the plastic bags in the orange bottle contained dimethyl sulfone, a 

substance used to dilute methamphetamine. The other plastic bag contained 1.99 grams 

of methamphetamine. 

On March 12, 2012, police searched the house where Jose Quevedo (Jose) and 

Karely Quevedo (Karely) resided. Karely was defendant’s girlfriend, and Jose was her 

brother. Twenty-two-caliber bullets were found in Jose’s room. Jose said he had a .22-

caliber rifle, and his uncle or his father’s friend gave him the bullets. Jose did not recall 

giving ammunition to defendant prior to March 10, 2012, and he did not recall telling 

police that he had done so.5 Also discovered in Jose’s room was a black rifle case. Jose 

 

5

 After responding to several of the prosecutor’s questions by stating that he could not 

remember, Jose testified that he had been “jumped” a couple of months following the 

shootings, that he had also been in a motorcycle accident, and that these events affected 

his memory. 
7

testified that defendant had given him a case for “[a] gun or like anything you could use it 

for.” Jose had come home late one evening, saw that defendant had the case, and asked 

defendant if he could have it. When Jose looked inside the case, he observed “little 

papers and stuff like that.” Jose testified he did not recall ever seeing a gun in the case.

Detective Garcia obtained Jose’s and Karely’s mobile phones. On Jose’s phone, 

he discovered two photographs of a rifle. Jose testified that, although he had told police 

officers that he found a rifle in the case and photographed himself with it, this was not 

true. Jose testified that a neighbor had given him an air rifle, and it was the air rifle that 

appeared in the photographs. 

Jose testified that he did not recall whether he was truthful when he spoke with 

police or whether he lied because he had concerns about a criminal case involving a gun 

charge pending against him. He testified that he “[p]robably” lied so that officers would 

not think that a gun belonged to him. 

Karely testified that defendant would regularly come to her house, but her parents 

would not see him because she would sneak him in. Karely testified that defendant was 

in her room with her from 8:30 p.m. on March 10, 2012, until 9:00 a.m. the following 

morning. 

Karely acknowledged sending a text message to defendant on March 12, 2012, at 

1:07 p.m., in which she stated, “ ‘If you ever do anything again I’ll ooo I’m not even 

gunna tell you but think about it.’ ” She testified that she had been angry because 

defendant cheated on her. Defendant had responded by text, “ ‘I’m not ever gunna do 

nothing again,’ ” and Karely replied, “ ‘You better not Ima about to have a bitch fit so I’ll 

text you later.’ ” 

On March 13, 2012, Sergeants Maynard, Alexander, and Rench searched room 

214 of the Delta Royal Hotel in Galt. Maynard observed a couple of shirts and hats, and 

collected the hats as evidence. Each cap bore the letter C. 
8

Donald Robert Guerrero testified that, on March 1, 2012, his house was 

burglarized. Among the items taken from the house was a .22-caliber Sig Sauer rifle. 

The gun came with a case and perhaps two 10-round clips for ammunition. Guerrero 

identified a case pictured in People’s Exhibit 26, a photograph of the case recovered from 

Jose’s room, as the case that came with the rifle. 

Gang Evidence

According to Jaramillo, the Norteños and the Sureños are criminal street gangs 

and enemies. Sureños typically wear blue, brown, flannel shirts, Dickies, and Cortez 

tennis shoes. Norteños typically wear red and black, and wear baggy clothing and saggy 

pants. To insult or disrespect a Norteño, a Sureño would call the Norteño “[b]uster or 

chap.” To disrespect a Sureño, a Norteño would use the term “[s]crap.” The Sureños had 

a particular area in Lodi which was considered their territory, as did the Norteños. The 

area where the shooting occurred was Sureño territory. 

Stefanie Grijalva, a juvenile-unit supervisor, testified concerning an incident on 

April 21, 2010, when defendant, a resident at the juvenile detention center, was 

disciplined for refusing to count off as number 13 in line. Fuentes testified that 13 is a 

number identified with Sureños. Norteño would not say that number as a matter of pride. 

Christopher Henderson, a unit supervisor at a juvenile detention center, testified 

that he reviewed items of mail sent to juveniles housed at the center for improper content 

and/or contraband. On May 14, 2012, Henderson reviewed a letter sent to defendant, and 

observed that it contained a reference to “SCL.” Henderson withheld the letter as 

inappropriate. 

Alicia Jackson, who worked at the juvenile detention center, testified that, on 

October 26, 2012, in the recreational yard, she heard defendant saying, “It’s all about the 

gangster.” She notified defendant that these were inappropriate gang-related comments. 

Defendant responded that he was simply singing a song. Jackson told defendant the song 

was inappropriate, and defendant replied, “You all staff need to understand the gang life 
9

is all we are about.” On November 24, 2012, Jackson inspected the room in which 

defendant was housed. She observed writings in the room including “X4,” which is 

“Nortenos tagging.” 

Marco Mendoza, a custody correction officer at the San Joaquin County Sheriff’s 

Department, conducts interviews with individuals housed in the jail facility. On 

January 7, 2013, Mendoza conducted an interview with defendant, who said he was a 

Norteño member from South Central Lodi. 

Detective Fuentes testified as an expert in Hispanic criminal street gangs in Lodi. 

Fuentes testified that, as of March 10, 2012, there were approximately 75 documented 

Norteños in Lodi, and approximately 55 Sureños. According to Fuentes, common 

symbols used by Norteños include “XIV, the 14” and the Huelga bird. 

Fuentes testified that respect is very important within gang culture. Gangs gain 

respect through violence. They want members of the community and rival gang members 

to fear them. Fuentes testified that, if gang members see a rival, they will attack. “That’s 

the way it is with the gang culture. That’s what they do.” 

Fuentes testified that it is “pretty easy nowadays” for gang members to acquire 

guns. They can either alert another gang member to the fact that they need a gun, or steal 

a gun by breaking into a house. 

Fuentes was of the opinion that, as of March 10, 2012, defendant was an active 

member of the Norteño gang. His opinion was based on prior contacts with defendant, 

defendant’s admissions, defendant’s tattoos, and his associations. Based on a 

hypothetical question mirroring the facts of the shooting, Fuentes opined that the 

shooting benefited the Norteño criminal street gang. 

Verdict and Sentencing 

The jury convicted defendant of murder in the first degree, attempted willful, 

deliberate and premeditated murder, possession of methamphetamine, and active 

participation in a criminal street gang, and found the enhancements and special 
10

circumstance to be true. On February 3, 2014, the trial court sentenced defendant to an 

aggregate term of 50 years to life imprisonment. As will be discussed post, the court, 

among other things, imposed a three-year consecutive sentence pursuant to section 

12022.7, subdivision (a), and a concurrent term of 25 years to life pursuant to section 

190.2, subdivision (a)(22). 

DISCUSSION

I. Prosecutorial Misconduct

Defendant claims that the prosecutor committed misconduct during her closing 

argument by vouching for the integrity of the police investigation, vouching for the 

credibility of prosecution witnesses, and denigrating the defense. Defendant further 

asserts that this alleged misconduct denied his right to a fair trial. The majority of 

defendant’s contentions have been forfeited. To the extent they have not, they are 

without merit.

A. Background

To give context to the prosecutor’s arguments, we first summarize testimony 

provided by Lodi Police Department personnel that the prosecutor addressed in her 

remarks.

Officer Mantzouranis testified he recorded his interview of Jaramillo on a digital 

recorder or on his mobile phone. He emailed that file to Detective Garcia, but he did not 

otherwise preserve the interview. When he received it, Garcia could not open the file, 

and he did not attempt to get help doing so, since he “had all the information [he] 

needed.” Mantzouranis believed that he deleted the file after sending it to Garcia. 

Mantzouranis acknowledged that he “should have probably booked that before [he] sent 

that to Detective Garcia” or at some point during the investigation. Mantzouranis also 

acknowledged that he did not indicate in his report that he had recorded his interview 

with Jaramillo. Garcia acknowledged that, if a recording is made during an investigation, 

it should be booked into evidence. He also acknowledged that he did not indicate in his 
11

report that he received a file that he was unable to open. Garcia testified that he thought 

Mantzouranis would preserve the recording and book it into evidence. Garcia did not 

discover that Mantzouranis had not done so until November 2013, at which time he 

searched his email to locate a copy of the file, and he requested that Mantzouranis do the 

same. He also requested that Mantzouranis check the device on which he made the 

recording. Garcia also consulted with police department technicians. However, he was 

unable to locate the file. 

As the prosecutor commenced her closing argument, she stated, “I also want to 

remind you that this is the People of the State of California versus Miguel Araiza. He is 

the only person in this courtroom charged with a crime. No one else is. The Lodi Police 

Department is not on trial. The defendant, Miguel Araiza, is on trial for the murder of 

Angelica Osorio and the attempted murder of Osvaldo Jaramillo and the other related 

crimes. Don’t get caught up in some type of conspiracy theory because that is when you 

start violating your oath as a juror and going outside of what the facts and the evidence 

and the application of the law is.” 

The prosecutor subsequently stated that there were “categories” of witnesses. 

These included “independent” witnesses, such as doctors and police officers. She 

contrasted such witnesses with “connected” witnesses, such as family, friends, and gang 

members. She stated that it would become clear to the jury “who the connected and . . . 

who the independent were.” 

The prosecutor noted that evidence had been elicited establishing that Corporal 

Eubanks falsified a report in an unrelated case. She asserted that the jury had to decide 

whether that had “anything to do with anything.” She further stated, “I’m going to 

suggest to you that it does not, but you have the right to know that because you have to 

have all of the information in order to make an educated decision.” 

The prosecutor followed that statement by saying, “The same thing, you’ve been 

told that Officer Mantzouranis and Corporal Garcia destroyed a tape, the interview of 
12

Osvaldo Jaramillo at the time he identified the defendant via photographic lineup. I’m 

going to suggest the following to you: What is the most important evidence? 

Mr. Jaramillo himself, and you had him. There was ample opportunity for full crossexamination, and if there -- as you watched and observed with every other witness in this 

case there was something that was different. [¶] And the other thing is [] that it was 

clearly an act of negligence on the officers’ part. They should have communicated with 

each other. Clearly, it’s not conduct that they engage in on a regular basis, and you know 

that because you yourself had an opportunity to see the two interviews that Corporal 

Garcia was responsible for were audio and videotaped, so you know this isn’t an ongoing 

pattern of conduct. So again, take it into consideration. It’s out there. Again, it doesn’t 

appear to have much weight to it, but that’s ultimately for you to decide.”6 Defense 

counsel registered no objections to any of the prosecutor’s comments in her argument-inchief.

As defense counsel commenced her closing argument, she stated, “This case is 

about mistakes. Mistakes made by the police in their investigation, mistaken identities 

and mistaken assumptions. The mistakes made throughout this case influenced the 

witnesses, the evidence and eventually the overall case. The mistakes permeated the case 

from the beginning to the end.” Defense counsel emphasized several purported mistakes, 

including Lodi Police Officer Dunfee writing the incorrect response time on his report; 

Detective Fluty’s assumption that defendant was the suspect based solely on Eubanks’s 

identification of the suspect as “Miguel”; Detective Garcia’s failure to create a fair and 

 

6

 The court instructed the jury with a special instruction offered by defendant. “You 

have heard evidence that a witness made a statement to a police officer after the incident. 

I am referring to the statement taken in the early morning hours of March 11, 2012 at the 

hospital. Officers Mantzouranis and Garcia destroyed the only copy of the audio 

recording of the interview. [¶] In evaluating the weight and significance of that 

evidence, you may consider the effect, if any, of the destruction of the audio recording.”
13

impartial photo lineup; and Detective Fluty’s testimony that his report stated the incorrect 

address as where he conducted surveillance. 

Defense counsel addressed in detail Garcia’s and Mantzouranis’s failure to 

preserve the audio recording of the interview with Jaramillo, stating, “The evidence was 

destroyed by the same people who created it: The police. And this is more than just a 

mere mistake. This is more than just mere negligence on this part or as Officer 

Mantzouranis said, ‘I should have done it.’ It’s a murder investigation. I should have 

done it doesn’t cut it. This is completely unacceptable police conduct. They’re trained 

not only to collect the evidence . . . , but they’re also trained to preserve it. [¶] And not 

only did they destroy the evidence, but somehow Officer Mantzouranis and Officer 

Garcia conveniently forgot to mention in the reports that it even existed in the first place. 

They’re trained to write reports, trained to put down what evidence is collected and 

what’s booked, and they’re trained to be thorough, yet none of the training was adhered 

to in this case.” 

Defense counsel continued, “Again, it’s cumulative. Look at all the mistakes, not 

just one of the mistakes.” She asserted that the cumulative effect of police mistakes 

contaminated the investigation. Defense counsel emphasized the circumstances which, 

she argued, could lead to an erroneous identification of defendant by Jaramillo, including 

that it was dark and his attention was focused on the gun. 

Defense counsel also argued that Jose “ha[d] every reason to lie,” that he was the 

only person known to have possessed the gun, that he had pending gun charges, that he 

had bullets of the caliber used in the shootings, and that he did not recall where he was at 

the time of the shooting. According to defense counsel, the People’s evidence was more 

consistent with a conclusion that Jose was the shooter, not defendant. 

In her rebuttal, the prosecutor began, “It’s called the SODDI argument: Some 

Other Dude Did It. There’s no information to support it. There’s no facts to support it. 

There’s no evidence to support it. [¶] But who’s the lame duck in the room? Jose 
14

Quevedo. But if you don’t buy that, it’s the D.A.’s fault because she’s trying to scare 

you. Not talking about the facts. Not talking about the evidence, but then it’s the D.A. 

And if that isn’t enough, you need to believe that every single person within the Lodi 

Police Department is willing to give up their job, willing to frame an innocent gangster 

just for what end?” Defense counsel registered no objection.

The prosecutor acknowledged that there were mistakes made in the investigation. 

She told the jury, “Were there mistakes made in this case by law enforcement? Yes. 

They came out. No one tried to hide anything. I’m sure it was quite embarrassing. But 

where is the evidence that it had any influence on anything?” No objection was made to 

the comment that “[n]o one tried to hide anything.” 

The prosecutor again acknowledged that the audio recording of the interview with 

Jaramillo was missing. However, she observed that it was documented in writing. She 

further stated, “And if it was something that was inconsistent, do you think it wasn’t 

going to be attacked? Do you think it wasn’t going to be used to attack him when he was 

up here?” Again, no objection was made.

The prosecutor then stated, “If you don’t have the law, you argue the facts. If you 

don’t have the facts, you argue the law. And if you don’t have either one of them on your 

side, you come up and throw anything up there and you hope it sticks on somebody.” 

Defense counsel objected, but the objection was overruled. 

The prosecutor discussed how red herrings were once used to throw hounds off the 

scent in fox hunts and equated the defense argument to a red herring. She suggested that 

there was no support for the premise that the loss of the audio recording changed the 

course of the investigation. She stated, “Where is the foundation for an argument that the 

loss, destruction, whatever you want to call it of the interview with Osvaldo Jaramillo . . . 

changed the course of this investigation? Where is it? See, you don’t get to just throw it 

out. It doesn’t matter who’s in this room, you don’t get to just throw something out there 

and say it’s so. Proof is required by any type --” Defense counsel objected on the ground 
15

that the prosecutor was shifting the burden of proof and the defense had no burden. 

Without waiting for a ruling by the trial court, the prosecutor responded, “That is 

absolutely correct. And I am not shifting the burden. It never shifts. There is no burden 

upon this defendant. There’s no burden upon the defense. But if you’re going to take a 

statement and you’re going to utilize it, you have to have foundation for it. There has to 

have something as a foundation to give it veracity. There has to be integrity in this 

process. If you don’t have integrity, we don’t have justice for anyone. This burden never 

shifts. [¶] But you have an obligation before you jump on the shiny object in the room to 

have some foundation and proof of the validity of that. That’s the point. This isn’t a 

shifting. The People have 100 percent of the burden, have had it from the beginning of 

this case, accept it and hold it to this moment. But there is absolutely nothing that would 

indicate that the mistakes that were made by law enforcement support the argument that it 

derailed the investigation and the identification because if you’re going to go on to that 

type of a mindset, you then have to -- Lodi Police Department on March the 10th of 

2012, about 11:43 p.m. decided at that moment they were going to frame Miguel Araiza. 

Out of everyone else in the world that they could pick, they’re going to frame Miguel 

Araiza.” 

Later, the prosecutor set forth the ways in which she asserted that any “conspiracy 

theory” was disproved by the evidence. The prosecutor asserted that, for the defense’s 

argument to be accepted, the jury would have to believe that Jaramillo was instructed by 

police to choose defendant in the photo lineup. The prosecutor stated that this was “the 

only way that this conspiracy theory can fit to exonerate the defendant. It’s ridiculous 

and it’s ludicrous.” Defense counsel objected, and the court overruled the objection, 

instructing the jury that “[t]his is argument and only argument.” 

As she concluded her argument, the prosecutor stated, “And what do the police get 

out of this? They’ve been berated. They’ve been embarrassed. They’ve been chastised 

and they’ve been attacked. What else do they get out of this whole thing by framing this 
16

innocent guy? What do they get out of it? What does Osvaldo Jaramillo get out of it? 

He’s now come and testified in a gang homicide, told about his prior connections to a 

gang against a gang member. What does he get?” 

B. Standard of Review

“The standards governing review of misconduct claims are settled. ‘A prosecutor 

who uses deceptive or reprehensible methods to persuade the jury commits misconduct, 

and such actions require reversal under the federal Constitution when they infect the trial 

with such “ ‘unfairness as to make the resulting conviction a denial of due process.’ ” 

[Citations.] Under state law, a prosecutor who uses such methods commits misconduct 

even when those actions do not result in a fundamentally unfair trial. [Citation.] In order 

to preserve a claim of misconduct, a defendant must make a timely objection and request 

an admonition; only if an admonition would not have cured the harm is the claim of 

misconduct preserved for review. [Citation.]’ [Citation.]” (People v. Parson (2008) 44 

Cal.4th 332, 359; see also People v. Centeno (2014) 60 Cal.4th 659, 674.)

“[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. 

[She] has the right to fully state [her] views as to what the evidence shows and to urge 

whatever conclusions [she] deems proper.” (People v. Lewis (1990) 50 Cal.3d 262, 283.) 

To prevail on a claim of prosecutorial misconduct in argument to the jury, the defendant 

must show a reasonable likelihood that the jury understood or applied the prosecutor’s 

comments in an improper or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 

970 (Frye).)

C. Forfeiture

As noted, defense counsel did not object or request an admonition at any time 

during the prosecutor’s closing argument-in-chief. Additionally, no objection was made 

as to some of the rebuttal comments defendant now complains about on appeal. 

Nonetheless, defendant claims that the prosecutor’s improper remarks were so 

persistently interspersed throughout the entirety of her closing argument that objection 
17

would have been futile, and, accordingly, we should consider his claims on appeal. (See 

People v. Kirkes (1952) 39 Cal.2d 719, 726 (Kirkes); see also People v. Hill (1998) 17 

Cal.4th 800, 820-821 (Hill).) We disagree. 

By failing to object, counsel for defendant did not seize the opportunity to obtain a 

ruling from the court that might have tempered any inappropriate remarks. (See People 

v. Dennis (1998) 17 Cal.4th 468, 521.) Moreover, we disagree with defendant’s 

contention that the challenged remarks “were interspersed throughout the closing 

argument in such manner that their cumulative effect was devastating” so as to constitute 

“flagrant misconduct” which would render any objection or admonition futile. (Kirkes, 

supra, 39 Cal.2d at p. 726.)

Defendant’s contentions related to the comments made during the prosecutor’s 

closing arguments for which he did not object in the trial court are forfeited. (People v. 

Cole (2004) 33 Cal.4th 1158, 1201-1202.) We now consider those claims of 

prosecutorial misconduct relating to the prosecutor’s rebuttal which were not forfeited by 

defendant. 

D. Vouching for Integrity of Investigation and Truthfulness of Witnesses

“A prosecutor is prohibited from vouching for the credibility of witnesses or 

otherwise bolstering the veracity of their testimony by referring to evidence outside the 

record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office 

behind a witness by offering the impression that she has taken steps to assure a witness’s 

truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding 

the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] 

record and the inferences reasonably drawn therefrom, rather than any purported personal 

knowledge or belief,’ her comments cannot be characterized as improper vouching. 

[Citations.]” (Frye, supra, 18 Cal.4th at p. 971.)

During her rebuttal argument, the prosecutor stated that, for the defense’s 

argument to be accepted, the jury would have to believe that police instructed Jaramillo 
18

to identify defendant in the photo lineup, and asserted that this was “the only way that 

this conspiracy theory can fit to exonerate the defendant. It’s ridiculous and it’s 

ludicrous.” Defense counsel objected.7

We do not agree with defendant that the prosecutor impermissibly vouched for the 

prosecution’s witnesses. Defendant’s reliance on United States v. Weatherspoon (9th Cir. 

2005) 410 F.3d 1142, is misplaced. In Weatherspoon, the court held that the prosecutor 

impermissibly vouched for the credibility of the law enforcement witnesses by arguing 

that the officers would be fired, lose their pensions, and risk prosecution for perjury if 

they lied, none of which made any sense “because they came in here and told you the 

truth, ladies and gentlemen.” (Id. at p. 1146) The Weatherspoon court reversed the 

conviction based on prosecutorial misconduct including the prosecutor’s remarks 

vouching for the credibility of witnesses. (Id. at p. 1152.)

Here, as to the comment for which defendant registered an objection, the 

prosecutor was not impermissibly vouching for the credibility of police witnesses; she 

was rebutting the theory and inferences relied upon by the defense that a succession of 

errors committed by police officers had unjustly led to the prosecution of defendant. This 

case is like People v. Caldwell (2013) 212 Cal.App.4th 1262, where, although the 

prosecutor made a similar argument about the consequences to the officers if they 

committed perjury, “he was not vouching for their credibility; he was rebutting the 

 

7

 Defense counsel objected only by stating, “Objection. Improper.” As a general matter, 

this general objection was insufficient to properly preserve defendant’s claim of vouching 

on appeal. The rule is that a defendant cannot complain on appeal of misconduct by a 

prosecutor at trial unless counsel made the objection “on the same ground” he asserts on 

appeal. (People v. Stanley (2006) 39 Cal.4th 913, 952; People v. Berryman (1993) 6 

Cal.4th 1048, 1072.) Defendant never objected on the ground that the prosecutor’s 

comments amounted to vouching for the integrity of the investigation and prosecution 

witness credibility. In any event, for the reason discussed, defendant’s claim is without 

merit.
19

defense attorney’s charge that the officers had lied about the photo lineup.” (Id. at 

p. 1271.) Similarly, our high court in People v. Dykes (2009) 46 Cal.4th 731, 774, held 

that a prosecutor’s remark to jury that, “ ‘If you believe [defendant], Sergeant Chenault is 

lying, risking his career and everything it stands for, to somehow frame this man,’ ” 

constituted fair comment on the evidence. Likewise, the prosecutor’s remarks here 

constituted fair comment on the evidence.

E. Denigrating Defense Counsel

“A prosecutor commits misconduct if he or she attacks the integrity of defense 

counsel, or casts aspersions on defense counsel.” (Hill, supra, 17 Cal.4th at p. 832.) “It 

is generally improper for the prosecutor to accuse defense counsel of fabricating a 

defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such 

attacks on counsel’s credibility risk focusing the jury’s attention on irrelevant matters and 

diverting the prosecution from its proper role of commenting on the evidence and 

drawing reasonable inferences therefrom. [Citations.] [¶] Nevertheless, the prosecutor 

has wide latitude in describing the deficiencies in [defense] counsel’s tactics and factual 

account. [Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846 (Bemore).) “An 

argument which does no more than point out that the defense is attempting to confuse the 

issues and urges the jury to focus on what the prosecution believes is the relevant 

evidence is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)

During the prosecutor’s rebuttal argument, the prosecutor stated, “If you don’t 

have the law, you argue the facts. If you don’t have the facts, you argue the law. And if 

you don’t have either one of them on your side, you come up and throw anything up there 

and you hope it sticks on somebody.” Defense counsel objected by stating, “Objection. 

Improper.”8 Contrary to defendant’s contention, this remark did not constitute 

 

8

 Defense counsel subsequently objected that the prosecutor improperly shifted the 

burden of proof. However, on appeal, defendant’s contentions are that the prosecutor 
20

prosecutorial misconduct. As the California Supreme Court stated in a case involving a 

remark, in essence, identical to that challenged by defendant here, “in context, the 

prosecutor could only have been understood as cautioning the jury to rely on the evidence 

introduced at trial and not as impugning the integrity of defense counsel.” (People v. 

Breaux (1991) 1 Cal.4th 281, 306.) The same reasoning applies here. This remark did 

not constitute prosecutorial misconduct.

F. Ineffective Assistance of Counsel

Defendant asserts that, inasmuch as defense counsel failed to preserve his 

challenges to the prosecutor’s alleged misconduct, he was denied the effective assistance 

of counsel. We disagree.

To establish ineffective assistance of counsel, a defendant must show (1) counsel’s 

performance fell below an objective standard of reasonableness under prevailing 

professional norms, and (2) the deficient performance prejudiced defendant. (Strickland 

v. Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674] (Strickland); People 

v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) “ ‘Surmounting Strickland’s 

high bar is never an easy task.’ [Citation.]” (Harrington v. Richter (2011) 562 U.S. 86, 

___ [178 L.Ed.2d 624, 632] (Richter), quoting Padilla v. Kentucky (2010) 559 U.S. 356, 

___ [176 L.Ed. 284, 297].)

To establish prejudice, “[i]t is not enough ‘to show that the errors had some 

conceivable effect on the outcome of the proceeding.’ ” (Richter, supra, 178 L.Ed.2d at 

p. 642.) To show prejudice, defendant must show a reasonable probability that he would 

have received a more favorable result had counsel’s performance not been deficient. 

(Strickland, supra, 466 U.S. at pp. 693-694; Ledesma, supra, 43 Cal.3d at pp. 217-218.) 

 

committed misconduct in vouching for the integrity of the police investigation and the 

prosecution’s witnesses, and in denigrating the defense. Defendant has not raised the 

burden-shifting contention in this appeal.
21

“A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Strickland, at p. 694; accord, Ledesma, at p. 218.)

“ ‘Failure to object rarely constitutes constitutionally ineffective legal 

representation . . . .’ ” (People v. Huggins (2006) 38 Cal.4th 175, 206 (Huggins), quoting 

People v. Boyette (2002) 29 Cal.4th 381, 424.) “Moreover, ‘[i]f the record on appeal fails 

to show why counsel acted or failed to act in the instance asserted to be ineffective, 

unless counsel was asked for an explanation and failed to provide one, or unless there 

simply could be no satisfactory explanation, the claim must be rejected on appeal.’ ” 

(Huggins, at p. 206, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)

We cannot conclude that counsel’s performance was deficient for her failure to 

object to various remarks made during closing arguments which defendant now claims 

constituted prosecutorial misconduct. “These were not situations in which there could be 

no satisfactory explanation for counsel’s failing to object to the remarks of which 

defendant now complains.” (Huggins, supra, 38 Cal.4th at p. 206.) For example, in a 

number of these instances, counsel could have preferred not to draw additional attention 

by repeatedly objecting to certain of the prosecutor’s remarks, in which the prosecutor 

attacked what she perceived to be the deficiencies in defense counsel’s arguments. (See 

Huggins, at p. 206; Bemore, supra, 22 Cal.4th at p. 846.) Moreover, to the extent that 

certain remarks complained of did not constitute prosecutorial misconduct, counsel 

cannot be faulted for abstaining from futile or meritless objections. (People v. Price

(1991) 1 Cal.4th 324, 386-387; see also People v. Stratton (1988) 205 Cal.App.3d 87, 

97.) Thus, we cannot conclude that counsel’s performance fell below an objective 

standard of reasonableness. 

Furthermore, even if counsel’s performance could be deemed deficient, given the 

overwhelming evidence in this case, there is no reasonable probability that, had counsel 

made the objections now raised and had those objections been sustained, the trial would 
22

have concluded in a result more favorable to defendant.9 Defendant was immediately 

identified as the shooter by a victim who had known him from middle school. The 

identification was unequivocal. Defendant was a Norteño and the victim was associated 

with Sureños, rivals of the Norteños. Defendant lied to investigators, telling them he was 

on his way to Mexico, thus evincing a consciousness of guilt for having shot the victims 

here. He continued to hide out after knowing he was wanted, and made the police look 

for him to secure his arrest, again evincing a consciousness of guilt. During this time, he 

made what could be considered damaging admissions by text to his girlfriend, promising 

to “ ‘not ever gunna do nothing again.’ ” He gave a case for a .22-caliber Sig Sauer rifle 

to his girlfriend’s brother and the murder victim was killed with a bullet that was possibly 

of the same caliber. Nothing the prosecutor said, nor defense counsel’s failure to object, 

resulted in prejudice.

II. Right to Counsel

Defendant asserts that the trial court erred in refusing to permit counsel to 

challenge the strength of the prosecution’s case by emphasizing in closing argument that 

the prosecutor presented no evidence that defendant admitted committing the crimes 

charged. Defendant claims that this error violated his right to counsel, since his right to 

counsel includes the right to have his theory of the case argued to the jury. Defendant’s 

contention is without merit.

 

9

 Defendant also asserts that the “cumulative effect of the pervasive misconduct” 

deprived him of a fair trial, and thus cannot be deemed harmless. However, since we 

conclude that the defendant’s claims have been forfeited or are without merit, we need 

not reach defendant’s contention in this regard.
23

A. Additional Background

Defendant made three separate statements to the police and eventually admitted 

shooting the victims here.10 The trial court overruled defendant’s in limine motion 

seeking to exclude his statements on Miranda11 and voluntariness grounds. The 

prosecutor did not introduce the statements into evidence during the trial.

During her closing argument, defense counsel stated, “All the mistakes and 

suggestions influence the witness, and unfortunately led to mistaken identification 

because there is no other evidence linking Miguel to this crime. There are no 

fingerprints. There are [sic] no DNA. There is no evidence of a statement that Miguel 

said he was responsible for the shooting.” The prosecutor objected. At a bench 

conference, the prosecutor argued that it was improper to “argue a negative to try to put 

the defendant’s statement that was not introduced during the course of trial. That is 

exactly what she did. She commented on the lack of the defendant’s statement when he 

 

10

 The trial record provides no insight into what defendant told the police. However, at 

the preliminary hearing, an officer testified about the statements defendant made. 

Defendant’s story changed several times. Initially, defendant denied any participation in 

the shooting, saying he spent the entire night at his girlfriend’s house. Later, he said he 

was present, but was not the shooter. He said the shooter was a person named Bravito. 

Defendant said Bravito offered to pay defendant to kill Osorio, who was Bravito’s exgirlfriend. Instead, Bravito shot her. Later in the interview, defendant admitted he was 

the shooter, but he said he did not mean to kill “an innocent person” and did not intend to 

kill anyone. Defendant said he knew Jaramillo from middle school, where the two of 

them got in a couple fights. Defendant said that before the shooting, he asked Jaramillo if 

he banged to make the shooting look gang related. Defendant said as he held the rifle, he 

blacked out, and he then became aware of his surroundings when he heard Osorio 

screaming. He dropped the rifle, picked it up, and walked off. In a third interview, 

defendant said Bravito had asked him to kill Osorio, not Jaramillo. Even after he was 

told Osorio did not have an ex-boyfriend, defendant insisted that Bravito said he was her 

former boyfriend and that defendant did the shooting for the money. However, he was 

never paid. 

11

 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].
24

did not testify, and there is no evidence. She’s trying to get in a denial of the charge by 

making that comment, and it is absolutely inappropriate.” Defense counsel asserted that 

she was entitled to comment on the evidence that was introduced, and observed that there 

was no evidence introduced, presumably referring to evidence of any admission by 

defendant. The prosecutor responded that it was inappropriate to comment on 

“nonevidence” and reiterated her contention that defense counsel was attempting to enter 

a denial by defendant while not having defendant testify subject to cross-examination. 

The court observed there was no evidence defendant made a statement. Defense counsel 

contended that her argument was the same as arguing there were no fingerprints. The 

court disagreed and sustained the prosecutor’s objection. 

B. Analysis

“It is firmly established that a criminal defendant has a constitutional right to have 

counsel present closing argument to the trier of fact. [Citations.] Nonetheless, it is 

equally settled that a judge in a criminal case ‘must be and is given great latitude in 

controlling the duration and limiting the scope of closing summations.’ [Citations.]” 

(People v. Rodrigues (1994) 8 Cal.4th 1060, 1184.) “A criminal defendant’s 

constitutional rights to counsel and to a jury trial encompass a right to have his [or her] 

theory of the case argued vigorously to the jury. [Citations.]” (United States v. DeLoach

(D.C. Cir. 1974) 504 F.2d 185, 189 (DeLoach).)

By seeking to argue that “[t]here [wa]s no evidence of a statement that [defendant] 

said he was responsible for the shooting,” the defense was not emphasizing a deficiency 

in the evidence proffered by the prosecution relevant to any element of the crimes 

charged. Allowing the defense to advance this argument would have created the 

substantial danger of leaving the jury with the false impression that defendant had denied 

commission of the crimes without having him testify subject to cross-examination. As 

noted in a case upon which defendant relies, a trial court can preclude arguments “that 

misrepresent the evidence . . . or otherwise tend to confuse the jury.” (DeLoach, supra, 
25

504 F.2d at p. 189.) The trial court did not abuse its discretion in sustaining the 

prosecutor’s objection.

Defendant is correct in asserting that the Due Process Clause requires the 

prosecution to prove every element of the crimes charged beyond a reasonable doubt. (In 

re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368] (Winship); People v. Loy (2011) 

52 Cal.4th 46, 72.) Defendant is also correct that reasonable doubt may arise from the 

lack of evidence in a case as well as from the evidence presented at trial. (People v. 

Simpson (1954) 43 Cal.2d 553, 566; People v. Flores (2007) 153 Cal.App.4th 1088, 

1092.) However, we disagree with defendant’s premise that, based on these rules, 

defense counsel had the right to argue in closing that the People failed to produce 

evidence of a statement by him that he admitted responsibility for these crimes. An 

admission is not an element of any of the crimes charged which the People were required 

to prove beyond a reasonable doubt. Defendant notes that a party may comment on the 

failure of the other party to call logical witnesses and admit material evidence, citing 

decisions allowing a prosecutor to make such comments during closing arguments --

People v. Gonzales (2012) 54 Cal.4th 1234, 1275, People v. Brady (2010) 50 Cal.4th 

547, 565-566, and People v. Woods (2006) 146 Cal.App.4th 106, 112. However, even 

assuming the trial court did not have the discretion to prevent the false impression that 

defendant denied shooting the victims and that defense counsel’s argument should have 

been allowed, any error is harmless. Defense counsel was not prevented from arguing 

that the prosecution did not meet its burden. Counsel made a variety of arguments in this 

regard, including that the police investigation was deficient, that the deficient 

investigation tainted Jaramillo’s identification of defendant, and the absence of 

fingerprints, DNA, and the murder weapon. Pointing out there was no evidence 

defendant took responsibility for the shooting was only one sentence in the entire closing 

argument. Based on the minor nature of the argument that was precluded and the 

overwhelming evidence in the case, which we summarized in our discussion related to 
26

defendant’s ineffective assistance of counsel claim, we conclude that any error was 

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [17 

L.Ed.2d 705].)

III. Section 12022.7, Subdivision (a), Great Bodily Injury Enhancement

Defendant asserts that the trial court erred in imposing a three-year term of 

imprisonment pursuant to section 12022.7, subdivision (a), in connection with his 

conviction of premeditated attempted murder since that enhancement was not pleaded in 

the information. Defendant asserts that, because the imposition of a sentence on an 

enhancement which was not pleaded in the information is unauthorized, the three-year 

term must be stricken. We agree with the People that, under the rationale set forth in 

People v. Houston (2012) 54 Cal.4th 1186 (Houston), defendant has forfeited his claim. 

However, based on section 12022.53, subdivision (f), we further conclude that the 

sentence imposed pursuant to section 12022.7, subdivision (a), must be stayed.

Pursuant to section 1170.1, “All enhancements shall be alleged in the accusatory 

pleading and either admitted by the defendant in open court or found to be true by the 

trier of fact.” (§ 1170.1, subd. (e).) Section 12022.7, subdivision (a), states, “Any person 

who personally inflicts great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony shall be punished by an additional and 

consecutive term of imprisonment in the state prison for three years.”

In Houston, the defendant claimed that he was improperly sentenced to life 

imprisonment on each count of attempted murder because the indictment failed to allege 

pursuant to section 664 that the attempted murders were willful, deliberate, and 

premeditated. (Houston, supra, 54 Cal.4th at p. 1225.) Instead, the indictment alleged, 

insofar as relevant, that the defendant “violated ‘Section 664/187 . . . , to wit: did 

willfully and unlawfully attempt to commit the crime of murder in violation of Section 

187 . . . in that he did willfully and unlawfully, and with malice aforethought, attempt to 

murder [the victim], a human being.’ ” (Id. at p. 1226.) The indictment did not allege 
27

that the attempted murders were deliberate and premeditated. (Ibid.) During trial, the 

court presented the parties with a draft of the verdict forms, which required the jurors to 

determine whether the attempted murders were willful, deliberate, and premeditated. 

(Ibid.) The court sought to clarify this issue, stating its understanding that the 

prosecution intended to charge premeditated attempted murder, specifically “ ‘the type of 

attempted murder [that is] punished by life imprisonment rather than five, seven, nine.’ ” 

(Ibid.) The court explicitly stated that, if this was not correct, the parties should notify 

the court. (Ibid.) Subsequently, the court specified that it intended to have the verdict 

form set forth deliberate and premeditated attempted murder as a special finding. (Ibid.) 

At the close of all evidence, the court instructed the jury on the definition of attempted 

murder, and directed the jury to determine whether the attempted murders were willful, 

deliberate, and premeditated. (Ibid.) The jury found that they were. (Ibid.) Defendant 

did not object before the court submitted the case to the jury or at sentencing. (Ibid.)

The California Supreme Court observed that it was undisputed that the indictment 

did not comply with section 664. (Houston, supra, 54 Cal.4th at p. 1226.) Our high 

court further noted that the trial court notified the defendant of the sentence he faced 

before the case was submitted to the jury, and the defendant had sufficient opportunity to 

object and request additional time to formulate a defense. (Id. at p. 1229; contra, People 

v. Arias (2010) 182 Cal.App.4th 1009.) The Supreme Court further observed that the 

jury had been properly instructed, and that it had made an express finding that the 

attempted murders were willful, deliberate, and premeditated. (Houston, at p. 1229) 

Based on all of these facts, the Supreme Court concluded that the defendant forfeited his 

claim that the indictment failed to comply with section 664. (Ibid.)

Here, count two did not contain an explicit allegation pursuant to section 12022.7, 

subdivision (a), that defendant personally inflicted great bodily injury on Jaramillo in the 

commission of count two. Defendant acknowledges that the parties discussed CALCRIM 

No. 3160, the section 12022.7 great bodily injury jury instruction, and that the instruction 
28

was given, as modified, without objection from the defense. The verdict form directed 

the jury to enter a finding as to whether, in the commission of the crime alleged in count 

two, defendant inflicted great bodily injury upon Jaramillo within the meaning of section 

12022.7, subdivision (a), and the jury found, beyond a reasonable doubt, that he did. At 

sentencing, the trial court imposed a three-year term of imprisonment on the 

enhancement pursuant to section 12022.7, subdivision (a), again without objection. 

We agree with the People that the circumstances of this case are analogous to 

those in Houston. The trial court and the parties discussed the jury instruction to be 

provided pursuant to section 12022.7, subdivision (a), and the defense agreed to the 

instruction as modified. The verdict form required the jury to make a finding as to the 

relevant allegation. The record reflects no objection to the verdict form. Defendant had 

sufficient opportunity to object to the inclusion of the section 12022.7 great bodily injury 

enhancement and request additional time to formulate a defense. The trial court properly 

instructed the jury that it was to enter a finding as to whether, in the commission of the 

attempted murder, defendant inflicted great bodily injury on Jaramillo. The jury did, in 

fact, find that allegation to be proven beyond a reasonable doubt. On these facts, we 

conclude that defendant forfeited his claim that the information failed to comply with 

sections 1170.1, subdivision (e), and 12022.7, subdivision (a). (Houston, supra, 54 

Cal.4th at p. 1229.)12

Defendant asserts that, in the event our determination is in accord with Houston, 

defense counsel was ineffective for failing to object to the submission of the uncharged 

 

12

 While, unlike Houston, the trial court here did not specifically discuss the additional 

sentence defendant faced pursuant to section 12022.7, this does not undermine our 

determination that defendant forfeited this claim. Had defense counsel objected, and had 

the People, as a result, successfully moved to amend the information, there would be no 

requirement that defendant be informed of the potential sentencing ramifications of the 

added allegation. (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Pretrial 

Proceedings, §§ 252 & 257, pp. 516-517, 522.)
29

enhancement to the jury. However, had defense counsel objected to the proposed charge, 

verdict form, or jury instruction as issued on the ground that the section 12022.7, 

subdivision (a), enhancement was not pleaded in the information, the prosecutor could 

have simply moved for leave to amend the information. (§ 1009 [court may permit 

amendment of an information for any defect or insufficiency at any stage of the 

proceedings]; People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1580-1581 [a 

court may allow amendment of an accusatory pleading at any time up to and including 

the close of trial so long as there is no prejudice to the defendant].) As the People 

observe, at the preliminary hearing, the trial court determined as to count two that 

sufficient evidence supported the related allegations that defendant committed 

premeditated attempted murder, and that defendant personally and intentionally 

discharged a firearm proximately causing great bodily injury. In light of these facts, as 

well as the fact that the trial court necessarily determined that issuing CALCRIM 

No. 3160, as modified, was warranted by the evidence at trial, we conclude that it is 

likely that, had defense counsel raised an objection, the trial court would have granted a 

motion by the People for leave to amend the information. Accordingly, whether 

counsel’s performance in failing to register this objection fell below an objective standard 

of reasonableness, defendant has not established prejudice as he has not shown that it is 

reasonably probable he would have received a more favorable result had defense counsel 

objected to the section 12022.7, subdivision (a), enhancement. (See generally In re 

Fields (1990) 51 Cal.3d 1063, 1079 [there is no need to address the issue of whether 

counsel’s performance was deficient when we can dispose of an ineffective assistance of 

counsel claim on the grounds of lack of prejudice].)

Nevertheless, the sentence imposed pursuant to section 12022.7, subdivision (a), 

must be stayed. Under section 12022.53, subdivision (f), “[a]n enhancement for great 

bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person in 

addition to an enhancement imposed pursuant to subdivision (d)” of section 12022.53 
30

(§ 12022.53, subd. (f).) Where enhancements pursuant to sections 12022.53, 

subdivision (d), and 12022.7, subdivision (a), are both found to be true, the sentence 

imposed for the latter enhancement is to be stayed, not stricken. (People v. Gonzalez

(2008) 43 Cal.4th 1118, 1124-1130 (Gonzalez).)

Here, the jury found to be true beyond a reasonable doubt both the enhancement 

pursuant to section 12022.53, subdivision (d), and the enhancement pursuant to section 

12022.7, subdivision (a). The court imposed and executed sentences on both 

enhancements. However, pursuant to section 12022.53, subdivision (f), upon imposing 

and executing the sentence pursuant to section 12022.53, subdivision (d), the court was 

precluded from imposing and executing the sentence pursuant to section 12022.7, 

subdivision (a). Instead, section 12022.53, subdivision (f), required the court to impose 

and stay the section 12022.7 sentence. (Gonzalez, supra, 43 Cal.4th at pp. 1124-1130.) 

Therefore, we modify the judgment accordingly.

IV. Sentence Imposed Pursuant to Section 190.2

Defendant asserts, and the People correctly concede, that the 25-years-to-life 

sentence imposed on count one concurrent to the 25-years-to-life sentence that court 

imposed for the murder is unauthorized and must be stricken. The court imposed this 

sentence pursuant to section 190.2, subdivision (a)(22). As defendant observes, the plain 

language of section 190.2, subdivision (a), only authorizes sentences of death or life 

imprisonment without the possibility of parole, and does not contemplate a sentence of 25 

years to life. (§ 190.2, subd. (a).) Moreover, as defendant and the People agree, section 

190.2, subdivision (a), does not authorize the imposition of a separate discrete sentence in 

addition to that imposed for the underlying murder. Instead, that section only provides 

that, if any of the enumerated special circumstances are found to be true, the sentence to 

be imposed on the conviction of murder in the first degree is death or life without the 

possibility of parole. (§ 190.2, subd. (a).) However, defendant was not eligible for a 

death sentence, as he was under the age of 18 at the time of the commission of the crime. 
31

(§ 190.5, subd. (a).) Additionally, even though the jury found true the special 

circumstance set forth in section 190.2, subdivision (a)(22), the court elected, at its 

discretion, to impose a sentence of 25 years to life on the underlying murder conviction, 

as it was authorized to do based on defendant’s age. (§ 190.5, subd. (b) [“The penalty for 

a defendant found guilty of murder in the first degree, in any case in which one or more 

special circumstances enumerated in Section 190.2 . . . has been found to be true under 

Section 190.4, who was 16 years of age or older and under the age of 18 years at the time 

of the commission of the crime, shall be confinement in the state prison for life without 

the possibility of parole or, at the discretion of the court, 25 years to life.”].) 

Accordingly, the concurrent 25-years-to-life sentence imposed pursuant to section 190.2 

was unauthorized and must be stricken. 

DISPOSITION

The sentence imposed pursuant to section 190.2, subdivision (a)(22), is stricken, 

the sentence imposed pursuant to section 12022.7, subdivision (a), is stayed, and the 

judgment is modified accordingly. The trial court is directed to prepare an amended 

abstract of judgment reflecting these modifications and to forward certified copies of the 

amended abstract to the Department of Corrections and Rehabilitation. The judgment is 

otherwise affirmed.

 MURRAY , J.

We concur:

 NICHOLSON , Acting P. J.

 HOCH , J.