1

Filed 1/25/24 P. v. Madriz CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO MADRIZ,

Defendant and Appellant.

 A165179

 (San Mateo County

 Super. Ct. No. 17-SF-002213-A)

While riding as a passenger in a car, defendant Pedro Madriz shot a 

man affiliated with a rival gang faction. Four days later, while riding in 

another car, Madriz urged the driver to flee from law enforcement, which 

resulted in a car crash that seriously injured some of the car’s other 

passengers. Based on these two incidents, a jury convicted Madriz of several 

felonies, including attempted murder, and numerous gang-related charges. 

He was sentenced to 39 years and eight months to life in prison. 

On appeal, Madriz contends that reversal is required under Assembly 

Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 333), which imposes 

new limitations on the prosecution of gang-related charges, and which took 

effect after Madriz was tried but before he was sentenced. In response to the 

new law, the trial court dismissed his convictions of the gang-related charges. 

Madriz claims, however, that he is entitled to reversal of all his convictions 

because trial on the gang charges was not bifurcated. In addition, he claims
2

the jury instruction on flight was legally incorrect. We reject these claims, 

order the correction of clerical errors in the abstract of judgment, and affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. Background

At the time of the February 2017 crimes, 23-year-old Madriz was a

member of Midtown Menlo Norteños (MMN), a Norteño gang subset in the 

area of East Palo Alto and East Menlo Park. Madriz had numerous gangrelated tattoos, including the word “Norte” above his left eye and the letters 

“MMN” by his right eye.

Around 2012, MMN split from another Norteño subset in the same 

area, Midtown and Menlo (M&M), due to “a rift within the gang” over their

name. There was significant violence, including shootings, between MMN 

and M&M for the next two years. Although the violence diminished after 

2014, the two factions remained rivals. 

B. The Shooting

On the afternoon of February 21, 2017, Jimmy H., who was in his late 

teens, left his East Palo Alto home on his bicycle to meet his girlfriend’s 

sister. After meeting her, Jimmy H. started biking home. 

Jimmy H. testified that before the meeting, he had noticed Madriz in 

the backseat of “a blue Toyota Prius or Honda” sedan and “gave him a headnod,” which Madriz returned. Jimmy H. had met Madriz several years before 

and had interacted with him at least five times, usually at neighborhood 

“kick-backs” attended by gang members. Although Jimmy H. was not a gang 

member, after the MMN/M&M split he tended to be friendly with members of

M&M. He testified that after the split he was beat up twice by MMN 
3

members. Nonetheless, in recent years he had distanced himself from his 

gang associates, and he did not think he and Madriz “had any problem.” 

As Jimmy H. reached the EPA Wireless store on his way home, the 

blue car caught up with him. Madriz was still in the backseat, and Jimmy H. 

could see four other people in the car. Jimmy H. testified that he knew one of 

them as “Shadow,” an MMN member who beat him up on one of the previous 

occasions, but did not remember recognizing any of the car’s other occupants.

1

Madriz asked Jimmy H., “Where are you from?,” which Jimmy H. 

understood to be a question about his gang affiliation. Jimmy H. then saw 

Madriz, who was only three or four feet away, point a silver handgun out the 

car window. Jimmy H. heard three gunshots and felt pain in his side and 

buttocks. He got off his bike and ran into EPA Wireless, where a store clerk 

called the police. Jimmy H. was treated at the hospital for a through-andthrough gunshot wound to his right side and back, an injury that still caused 

him pain. 

At 1:15 p.m., East Palo Alto’s Shot Spotter system recorded three 

gunshots fired within one second in the vicinity of EPA Wireless. Three shell 

casings and a bullet fragment were recovered at the scene, and there were 

two bullet holes in an outside wall of EPA Wireless. No fingerprints could be 

recovered from the shell casings. Surveillance footage from area businesses

showed the movements of Jimmy H. and a Prius leading up to the shooting, 

1 Shadow, whose real name is Enrique S., worked for a construction 

company at the time. Timecard records showed that he worked at a job site 

in Albany from approximately 7:00 a.m. to 3:00 p.m. on the day in question.

Jimmy H. told the police that Shadow was in the blue car, but at trial he 

testified it was possible the person was actually “Little Shadow,” Shadow’s 

younger brother. It also appears from the record that Jimmy H. failed to 

identify Shadow in a photographic line-up the day after the shooting. 
4

culminating in “a hand outstretched from the car” right before Jimmy H. 

went into EPA Wireless.

At the scene, Jimmy H. told a police officer that he knew who shot him 

but could not recall the man’s name. Jimmy H. later identified Madriz in a 

photographic line-up as “Fat Boy,” Madriz’s gang moniker, but refused to 

initial the identification. Jimmy H. testified that he was initially reluctant to

tell the police who shot him because he was afraid of gang retaliation, but he 

decided “it was the best thing to do” because he was “not in that life 

any[]more.”

Both sides presented expert testimony involving data extracted from 

Madriz’s cell phone. The phone’s location data tended to show that Madriz 

was in the vicinity of EPA Wireless at the time of the shooting, although 

some discrepancies were impossible to explain. Madriz’s sister-in-law 

testified that his grandmother and great-grandmother lived on the same 

street indicated by some of the relevant location data, and he often visited 

them.

C. The Car Chase

Four days after the shooting, on February 25, 2017, 18-year-old 

Stephanie D. and her friend, 14-year-old Tatiana P., drove to a Redwood City 

park to meet Madriz and Alexis S., a member of a Redwood City Norteño

subset. The group left the park in Alexis S.’s Nissan Altima and went to a

nearby abandoned house, where they consumed drugs and alcohol. After 

buying more alcohol, they drove to East Palo Alto to pick up another gang 

member, Stevie J. Stevie J. got in the driver’s seat, and Madriz, who had 

been driving, moved to the front passenger’s seat. Tatiana P., Stephanie D., 

and Alexis S. were in the backseat. 
5

The group drove around East Palo Alto for a while, smoking marijuana 

and drinking. Stephanie D. testified that at one point, she saw Madriz pull 

out a gun from “in between [his] legs or on the floor,” hold it briefly, and 

replace it out of sight. Tatiana P. also saw Madriz holding a gun sometime

during the ride. 

Eventually, someone in the Altima said, “We got blurped,” and the girls 

noticed police lights. Stevie J. asked if he should stop, and Madriz indicated 

he should take the police on a high-speed chase. Stephanie D. testified that 

Madriz stated he had a warrant out for attempted murder, but Tatiana P. 

testified that he did not specify what the warrant was for.2 During the 

ensuing chase, the girls repeatedly yelled at Stevie J. to pull over and let 

them out of the car, but he did not do so. 

A San Mateo County sheriff’s deputy testified that around 9:20 p.m. 

that night, he was driving in a patrol vehicle with other members of the 

county gang task force. He noticed an Altima in front of them, which was 

playing loud music, and saw “a lit cigarette [discarded] out of the [front] 

passenger window.” The patrol vehicle activated its lights to initiate a stop, 

but the Altima accelerated instead of pulling over. In the ensuing chase 

through East Palo Alto, which has a uniform speed limit of 25 miles per hour, 

the Altima ran four stop signs and reached 70 miles per hour. 

Eventually, the Altima crashed into a tree. The sheriff’s deputy 

extracted Madriz from the front passenger’s seat and noticed a handgun on 

the passenger’s-side floorboard. The gun, a fully loaded Springfield Armory 

nine-millimeter, was of a different caliber than the shell casings from the

2 The defense introduced evidence that Stevie J.’s driver’s license was 

suspended at the time, implying this gave Stevie J. an independent reason 

not to pull over. 
6

February 21 shooting, and no usable DNA or fingerprints were recovered 

from it. The deputy then arrested Madriz, the only one of the car’s occupants 

who was not seriously injured. 

Stephanie D. sustained numerous injuries, including breaking her hip, 

pelvis, and ribs and severing her sciatic nerve and tendons in her knee and 

hand. Her injuries required four surgeries. At the time of trial, she could not 

feel one of her feet, leaving her vulnerable to sprained ankles, and she had 

arthritis and carpal tunnel syndrome in her injured hand. Tatiana P. 

fractured her pelvis, and she continued to experience discomfort from the 

injury. 

D. Other Gang Evidence

A sergeant in the San Mateo County Sheriff’s office testified as a gang 

expert. He explained that Norteños are affiliated with the Nuestra Familia 

prison gang and use certain signifiers, including the color red, references to 

the north, and symbols referring to “N” being the fourteenth letter of the 

alphabet. In addition to providing information about MMN and M&M

discussed above, the sergeant testified that both subsets’ primary activities 

include violent crimes, firearm possession, distribution of narcotics, and 

robbery and burglary. 

The sergeant opined that Madriz was an active MMN member at the 

time of the shooting and car crash. This opinion was based on other evidence 

besides Madriz’s gang-related tattoos. For example, a Menlo Park police 

officer testified that in 2009, he searched Madriz and found a cell phone with 

the number 14 carved in the back and a binder with Norteño symbols on it. 

In 2011, another Menlo Park police officer had a consensual interaction with 

Madriz, who was with two other men wearing red clothing. The officer 
7

observed gang-related tattoos on Madriz, who told the officer that he was an 

active gang member. 

Photographs and recordings of Madriz also supported the sergeant’s 

opinion that Madriz belonged to MMN. There were photographs of Madriz 

with other Norteños in which Madriz’s fingers were shaped in the letter M.

The jury also viewed a video in which Madriz was “claiming . . . [MMN], 

referencing his own tattoos connected to that gang, as well as his prior 

associations with other [MMN] members.” 

To support the gang charges, the sergeant described three predicate 

offenses committed by MMN members. First, in 2013, Madriz was convicted 

of robbery with a gang enhancement. Second, also in 2013, another MMN 

member was convicted of assault with a firearm causing great bodily injury 

committed for the benefit of a gang. Third, in 2015, yet another MMN 

member was convicted of unlawful possession of a firearm with a gang 

enhancement and possession of methamphetamine for sale. 

Based on a hypothetical tracking the facts here, the sergeant opined 

that the shooting was gang-related and committed for the benefit of MMN. 

He explained that Norteños are “expected to inflict violence upon [their] 

enemies,” and shooting someone associated with a rival faction would 

increase the shooter’s status in the gang and the gang’s status as a whole. 

The sergeant also opined that the car chase was in association with and for 

the benefit of MMN, because gang members are supposed to help other 

members avoid criminal liability. 

E. Procedural History

The operative information charged Madriz with seven felony counts: 

attempted premeditated murder, assault with a firearm, and unlawful 

discharge of a firearm from a motor vehicle, based on the February 21 
8

incident; possession of a firearm by a felon, carrying a loaded firearm in 

public, and evading a peace officer causing injury, based on the February 25 

incident; and active participation in a gang, based on both incidents.3

Numerous gang, firearm, and great-bodily-injury enhancements were alleged 

in connection with the first six counts.4 Finally, various allegations were 

made based on two of Madriz’s prior convictions, the one for robbery with a 

gang enhancement and another for carrying a loaded firearm in public.5

The jury hung on the allegation that the attempted murder was 

premeditated, and it was dismissed. Otherwise, the jury convicted Madriz of 

3 The charges were brought under Penal Code sections 187, 

subdivision (a), 189, and 664, subdivision (a) (attempted premeditated 

murder), 245, subdivision (a)(2) (assault with firearm), 26100, subdivision (c) 

(discharge of firearm from vehicle), 29800, subdivision (a)(1) (possession of 

firearm by felon), 25850, subdivision (c)(6) (carrying loaded firearm in public), 

186.22, subdivision (a) (active participation in gang), and Vehicle Code 

section 2800.3, subdivision (a) (evading peace officer). All further statutory 

references are to the Penal Code unless otherwise noted.

4 The gang allegations were made under section 186.22, subdivision (b). 

The firearm allegations were made under sections 12022.55 (all February 21 

charges), 12022.53, subdivisions (b)–(e) (attempted murder), and (b)–(d) only 

(discharge of firearm from vehicle), and 12022.5, subdivision (a) (assault with 

firearm). The great-bodily-injury allegations were made under 

sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8), as to all the 

February 21 charges and the charge of evading a peace officer. The firearm 

allegations under section 12022.53, subdivisions (b) and (c), as to the charge 

of discharging a firearm and the great-bodily-injury allegations as to the 

charge of evading a peace officer were not submitted to the jury and 

ultimately dismissed. 

5 These allegations were made under sections 1170.12, 

subdivision (c)(1), and 667, subdivision (a)(1), based on 2013 convictions

under sections 212.5 and 186.22, subdivision (b)(1) (robbery with gang 

enhancement), and 25850, subdivision (c)(6) (carrying loaded firearm in 

public). An allegation under section 667.5, subdivision (b), was dismissed 

before the trial court considered it. 
9

all the charges and accompanying allegations submitted to it. The trial court 

then found true the prior-conviction allegations. 

The trial concluded in June 2021, but Madriz was not sentenced until 

the following April. In the meantime, Assembly Bill No. 333 took effect, and 

Madriz relied on the legislation to move for a new trial on the substantive 

gang count and the gang-related enhancements, including the firearm 

enhancement under section 12022.53, subdivision (e)(1). The People 

conceded that a new trial was warranted, and at their request the trial court 

dismissed all the gang charges of which Madriz was convicted. 

The trial court then sentenced Madriz to 39 years and eight months to 

life in prison, composed of the low term of five years, doubled, for attempted 

murder, and 25 years to life for the accompanying firearm enhancement 

under section 12022.53, subdivision (d); a consecutive term of eight months, 

doubled, for being in a felon in possession of a firearm; and a consecutive 

term of 20 months, doubled, for flight from a peace officer. The court struck 

the five-year enhancement under section 667, subdivision (a)(1), in the 

interest of justice, and imposed and stayed terms for the remaining 

convictions and enhancements. 

II.

DISCUSSION

A. Madriz Is Not Entitled to Relief Under Section 1109.

Madriz challenges his convictions based on section 1109, a statute 

added by Assembly Bill No. 333 that entitles defendants to bifurcate trial on 

gang charges from trial on non-gang charges. He argues that since 

bifurcation did not occur here, a large amount of “highly prejudicial gang 

evidence” was improperly introduced, requiring reversal. Even assuming 

that section 1109 is retroactive, we conclude that the lack of bifurcation was 

harmless.
10

The California Street Terrorism Enforcement and Prevention Act 

(§ 186.20 et seq.), which was enacted in 1988 “ ‘to eradicate “criminal activity 

by street gangs,” ’ ” created a sentencing enhancement for felonies 

“committed for the benefit of, at the direction of, or in association with a 

criminal street gang.” (People v. Tran (2022) 13 Cal.5th 1169, 1205–1206 

(Tran); § 186.22, subd. (b)(1).) It also created a substantive crime of “actively 

participat[ing] in a criminal street gang.” (§ 186.22, subd. (a).)

Effective January 1, 2022, Assembly Bill No. 333 changed the law 

governing gang enhancements and the crime of active participation in a 

street gang in two primary respects. (See Tran, supra, 13 Cal.5th at p. 1206.) 

First, the legislation narrowed the scope of section 186.22 in several ways, 

thus changing the elements required to prove guilt. (See Tran, at pp. 1206–

1207.) This aspect of Assembly Bill No. 333, which is retroactive under In re 

Estrada (1965) 63 Cal.2d 740, is not implicated here because there is no

dispute that the trial court appropriately responded to the new legislation by 

overturning Madriz’s gang conviction and enhancements. (Tran, at pp. 1206–

1207.) 

Second, the legislation added section 1109. This statute requires, upon 

a defendant’s request, that gang enhancements and charges of active 

participation in a street gang be tried separately from other offenses.

6 (Tran, 

supra, 13 Cal.5th at p. 1206; § 1109, subds. (a) & (b).) “If the proceedings are 

bifurcated, the truth of [a] gang enhancement may be determined only after a 

trier of fact finds the defendant guilty of the underlying offense.” (Tran, at 

6 Before trial, and thus before Assembly Bill No. 333 took effect, Madriz 

unsuccessfully moved on constitutional grounds and under Evidence Code 

section 352 to bifurcate trial of the gang charges from the non-gang charges. 

He does not argue on appeal that the trial court improperly denied that 

motion under then-applicable law. 
11

p. 1206.) Similarly, a charge of active participation in a street gang “shall be 

tried separately from all other counts that do not otherwise require gang 

evidence as an element of the crime.” (§ 1109, subd. (b).) 

Initially, we need not resolve the parties’ dispute whether section 1109 

is retroactive under In re Estrada, supra, 63 Cal.2d 740. The Courts of 

Appeal are split on the issue, which is currently before our state Supreme 

Court. (Tran, supra, 13 Cal.5th at p. 1208; People v. Burgos (2022) 

77 Cal.App.5th 550, review granted July 13, 2022, S274743.) In Tran, the 

Supreme Court declined to resolve the split, “conclud[ing] that any asserted 

error in failing to bifurcate was harmless.” (Tran, at p. 1208.) We adopt a 

similar approach here, concluding that the lack of bifurcation was harmless.

Madriz asserts that “the lack of bifurcation in his case is a structural 

error and that automatic reversal is warranted.” But Tran flatly rejected the 

same contention. (Tran, supra, 13 Cal.5th at p. 1208.) Madriz does not even 

cite Tran, which was decided several months before he filed his opening brief, 

much less offer any reason this holding is not binding on us. (See Auto 

Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 

Alternatively, Madriz argues that “the prejudice flowing from the lack 

of bifurcation should be evaluated under the federal standard of Chapman v. 

California (1967) 386 U.S. 18.” Again, he fails to acknowledge Tran in 

making this argument. Tran held that unless the failure to bifurcate under 

section 1109 rendered a trial “fundamentally unfair,” the error’s prejudicial 

effect is assessed under the state-law standard of People v. Watson (1956) 

46 Cal.2d 818, which asks whether it is reasonably probable the defendant 

would have obtained a better result absent the error. (Tran, supra, 

13 Cal.5th at p. 1209; Watson, at p. 836.) In his reply brief, Madriz appears 

to claim broadly that gang evidence always renders a trial fundamentally 
12

unfair, but Tran forecloses that position, and he makes no attempt to 

demonstrate that his trial in particular was fundamentally unfair. Thus, we 

turn to address whether the lack of bifurcation was prejudicial under Watson.

Madriz argues that “all of [the] gang testimony” from prosecution 

witnesses “was irrelevant given the fact that the primary issue in the case as 

to the shooting was simple: Was [he] the one who shot [Jimmy H.]?” In fact, 

gang evidence was highly relevant to the shooter’s identity. Jimmy H. 

identified Madriz by Madriz’s gang moniker and his face tattoos, the latter of 

which the jurors could see for themselves. And the two men’s prior 

interactions primarily occurred during gang hangouts. Furthermore, gang 

evidence was relevant to other significant issues in the case, including the 

motive for the shooting and the impetus for the car chase.

In resisting this conclusion, Madriz argues in his reply brief that 

Jimmy H.’s testimony “negated any notion of motive,” Jimmy H.’s

“identification was unavailing where [Jimmy H.] was initially unable to 

identify the shooter,” and “cellular phone evidence established that it was 

impossible that [Madriz] was the shooter.” (Italics added.) These arguments 

improperly invite us to reweigh the evidence. Although Jimmy H. testified 

that he was surprised Madriz shot him, it was telling that Jimmy H. was 

affiliated with a rival subset and Madriz asked him where he was from before 

the shooting. The jury was entitled to infer that Madriz had a gang-related 

motive for the shooting, even if Jimmy H. found that hard to believe. As for 

Madriz’s other points, the jury clearly accepted Jimmy H.’s identification and 

did not find the discrepancies in the cell-phone data conclusive. Overall, the 

evidence hardly precluded a finding that Madriz was the shooter.

Finally, Madriz also argues that prejudice is “evident from the fact that 

the prosecution spent much of its closing argument discussing [his] gang 
13

affiliations.” To be sure, the closing arguments centered on gang evidence 

more than they would have had the gang charges been tried separately. But 

although Madriz quotes the prosecution’s arguments at length, none of the 

statements he identifies were especially inflammatory. The mere fact that 

the prosecution argued for the jury to return favorable verdicts on the gang 

charges does not establish that the failure to bifurcate them was prejudicial.

In short, we conclude that “it is not reasonably likely that a bifurcated 

trial would have changed the jury’s verdict” on the non-gang charges. (Tran, 

supra, 13 Cal.5th at p. 1210.) Jimmy H. unambiguously identified Madriz as 

the shooter based on significant prior contact with him, and Stephanie D. and 

Tatiana P. agreed that Madriz directed the car chase to occur. The evidence 

of the other non-gang counts and allegations was also strong. Finally, even if 

trial had been bifurcated, at least some gang evidence was likely still 

admissible on key issues such as identity and motive. Thus, even if we 

assume Madriz was entitled to the benefit of section 1109, the lack of 

bifurcation was harmless.

B. Madriz’s Challenge to CALCRIM No. 372 Fails.

Madriz also claims the trial court erred by giving CALCRIM No. 372, 

the form instruction on flight. We are not persuaded.

The jury was instructed under CALCRIM No. 372 as follows: “If the 

defendant fled or tried to flee after . . . he was accused of committing the 

crime, that conduct may show that he was aware of his guilt. If you conclude 

that the defendant fled or tried to flee, it is up to you to decide the meaning 

and importance of that conduct. However, evidence that the defendant fled 

or tried to flee cannot prove guilt by itself.” Madriz did not object below to 

either the giving of a flight instruction or the given instruction’s language.
14

The focus of Madriz’s claim is that CALCRIM No. 372 is legally 

incorrect. The Attorney General does not argue that Madriz forfeited this 

claim by failing to raise it below, and we agree with Madriz that he did not. 

(See People v. Franco (2009) 180 Cal.App.4th 713, 719 [“[t]he rule of 

forfeiture does not apply . . . if the instruction was an incorrect statement of 

the law” or “affected the defendant’s substantial rights”].) We review de novo 

whether a jury instruction correctly states the law. (People v. Posey (2004) 

32 Cal.4th 193, 218.) In deciding whether an instruction is “ ‘incorrect or 

incomplete, we evaluate the instructions given as a whole, not in isolation.’ ” 

(People v. Moore (2011) 51 Cal.4th 1104, 1140.)

Madriz claims that CALCRIM No. 372 conflicts with section 1127c. 

That statute provides, “In any criminal trial or proceeding where evidence of 

flight of a defendant is relied upon as tending to show guilt, the court shall 

instruct the jury substantially as follows: [¶] The flight of a person 

immediately after the commission of a crime, or after he is accused of a crime 

that has been committed, is not sufficient in itself to establish his guilt, but is 

a fact which, if proved, the jury may consider in deciding his guilt or 

innocence. The weight to which such circumstance is entitled is a matter for 

the jury to determine. [¶] No further instruction on the subject of flight need 

be given.”

Madriz contends that unlike the section 1127c instruction, CALCRIM 

No. 372 “presumes an awareness of guilt when a defendant is alleged to have 

fled or tried to flee.” According to him, CALCRIM No. 372’s statement that 

flight “may show” awareness of guilt “reverses the onus set forth in 

[section] 1127c,” which states that flight “is not sufficient” to show guilt. But 

the fact that CALCRIM No. 372 and section 1127c “communicate[] [the same] 

ideas in the opposite order” does not render the former instruction unlawful. 
15

(People v. Paysinger (2009) 174 Cal.App.4th 26, 31.) As Paysinger observed, 

CALCRIM No. 372 goes on to say that evidence of flight is insufficient alone 

to establish guilt, “and we certainly do not view one part of an instruction in 

isolation from another part.” (Paysinger, at p. 31.) To the extent Madriz 

complains that CALCRIM No. 372 states that flight “may show” awareness of 

guilt while section 1127c does not do so explicitly, we agree with Paysinger

that the difference is legally insignificant. (Paysinger, at p. 31.)

Citing People v. Wright (1988) 45 Cal.3d 1126, Madriz also claims that 

CALCRIM No. 372 is “improperly argumentative.” But he does not explain 

his reasoning, other than to quote Wright’s observation that jury instructions 

“ ‘should contain a principle of law applicable to the case, expressed in plain 

language, indicating no opinion of the court as to any fact in issue.’ ” (Wright, 

at p. 1135.) We are unable to discern how CALCRIM No. 372 violates this 

principle. Moreover, as the Attorney General observes, our state Supreme 

Court has repeatedly rejected claims that CALCRIM No. 372’s predecessor,

CALJIC No. 2.52, is unduly argumentative. (People v. Boyce (2014) 

59 Cal.4th 672, 691 [collecting cases].) 

In short, Madriz fails to convince us that CALCRIM No. 372 is legally 

erroneous in any respect. Therefore, the trial court did not err by instructing 

the jury under it.

C. Clerical Errors in the Abstract of Judgment Must Be Corrected.

Finally, we address certain discrepancies between the trial court’s oral 

pronouncement of sentence and Madriz’s abstract of judgment. Even though 

the parties do not address these discrepancies, an appellate court “ ‘may 

correct such errors on its own motion.’ ” (People v. Mitchell (2001) 26 Cal.4th 

181, 186–187.)
16

To begin with, an indeterminate abstract of judgment was prepared 

even though Madriz was not convicted of any substantive counts carrying an 

indeterminate sentence. The attempted murder conviction, on which Madriz 

was sentenced to 10 years, is listed on this abstract as carrying a sentence of 

25 years to life. In fact, that was the sentence for the accompanying firearm 

enhancement under section 12022.53, subdivision (d), which does not appear 

on the indeterminate abstract at all. The attempted murder is also described 

as “Attempted: Willful, Deliberate, and Premeditated [Murder]” even though 

the jury hung on the premeditation allegation. The indeterminate abstract of 

judgment must be stricken entirely, and the determinate abstract must be 

amended to show a 10-year term for attempted murder, a 25-years-to-life 

term on the firearm enhancement, and stayed terms for the other 

accompanying enhancements.

There are also several errors on the determinate abstract of judgment.

This abstract does not list any of the enhancements for any of the remaining 

five convictions and must be amended to do so. It also reflects that the 

sentence for being a felon in possession of a firearm was 8 months when it 

was actually 16 months and that the sentence for evading a peace officer was 

20 months when it was actually 40 months. Finally, the determinate 

abstract of judgment must be amended to include the fines and fees imposed

and Madriz’s custody credits, both of which appear only on the indeterminate 

abstract.

III.

DISPOSITION

The judgment is affirmed. The trial court is directed to strike the 

indeterminate abstract of judgment and prepare an amended determinate 

abstract of judgment consistent with this opinion. A certified copy of the 
17

amended abstract shall be sent to the Department of Corrections and 

Rehabilitation.
18

_________________________

Humes, P. J.

WE CONCUR:

_________________________

Banke, J.

_________________________

Castro, J.*

*Judge of the Superior Court of the County of Alameda, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.

People v. Madriz A165179