Filed 6/29/22 P. v. Herrera CA2/2

Opinion following transfer from Supreme Court

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE HERRERA,

Defendant and Appellant.

 B298686

 (Los Angeles County

 Super. Ct. No. VA140013)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Michael A. Cowell, Judge. Affirmed with 

directions.

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, Steven D. 

Matthews, Julie Harris, Shezad H. Thakor and Gary A. 
2

Lieberman, Deputy Attorneys General, for Plaintiff and 

Respondent.

Defendant and appellant Jesse Herrera (defendant) 

appealed from the judgment entered after he was convicted of 

attempted willful, deliberate, and premeditated murder;

attempted voluntary manslaughter; and shooting at an inhabited 

building; with true findings on firearm and other special 

allegations. He asserted that the use of a defective verdict form 

for the attempted murder count required reversal and that he

received ineffective assistance of counsel due to his counsel’s 

failure to both object to the verdict form and to request jury 

instruction CALJIC No. 3.32. Defendant also asserted that the 

firearm enhancement alleged as to count 3, shooting at an 

inhabited building, should have been stricken, and he requested 

remand to the trial court to consider a lesser enhancement. 

Defendant’s final contention concerned several errors in the 

abstracts of judgment.

In our original opinion filed October 7, 2020, we rejected 

defendant’s contentions regarding the verdict form, as well as his 

claim of ineffective assistance of counsel. We found that though 

the trial court struck the firearm enhancement in count 3, the 

order was incorrectly recorded in the abstract of judgment, and 

we ordered amended abstracts. We rejected defendant’s 

contention that the trial court’s discretion to strike a firearm 

enhancement included the authority to substitute a lesser, 

uncharged firearm enhancement, but we agreed that the errors 

in the abstract of judgment should be corrected. We otherwise 

affirmed the judgment.

The California Supreme Court granted review and on 

April 27, 2022, returned the matter to this court with directions 
3

to reconsider the cause in light of People v. Tirado (2022) 12 

Cal.5th 688. We hereby vacate our prior decision and issue this 

opinion in its place.

BACKGROUND

Defendant was charged in counts 1 and 2 of an amended 

information with attempted murder in violation of Penal Code 

sections 664 and 187, subdivision (a).

1 It was also alleged that 

the attempted murders were committed willfully, deliberately, 

and with premeditation and that defendant personally and 

intentionally discharged a handgun within the meaning of 

section 12022.53, subdivision (c). Count 3 alleged that defendant 

unlawfully fired a firearm at an inhabited dwelling in violation of 

section 246, and in count 4 defendant was charged with second 

degree robbery in violation of section 213, subdivision (b). It was 

also alleged that defendant personally and intentionally 

discharged a firearm causing great bodily injury to Jose Romero 

(Romero), within the meaning of section 12022.53, subdivision 

(d). As to counts 1, 3, and 4, it was separately alleged that 

defendant personally caused great bodily injury to Romero, 

within the meaning of section 12022.7, subdivision (a). Finally, it 

was alleged pursuant to section 186.22, subdivision (b) that the 

crimes were committed for the benefit of, at the direction of, and 

in association with a criminal street gang with the specific intent 

to promote, further and assist in criminal conduct by gang 

members.

1 All further statutory references are to the Penal Code, 

unless otherwise indicated. 
4

A jury found defendant guilty of the attempted willful, 

deliberate, and premeditated murder of Romero and found true 

the firearm and great bodily injury allegations under sections

12022.53, subdivision (d) and 12022.7, subdivision (a). The jury 

also found defendant guilty of the lesser offense of the attempted 

voluntary manslaughter of Miguel Romero (Miguel)2 and found 

true that he used a firearm within the meaning of section 

12022.5, subdivision (a). In count 3 defendant was found guilty,

and the firearm allegation was found to be true. Defendant was 

found not guilty of count 4, and the gang allegations were found 

not true.

On May 22, 2019, the trial court sentenced defendant on

count 1 to life in prison plus 25 years to life for the firearm 

enhancement.

3 The court imposed and stayed the middle term of 

three years and the firearm enhancement on count 2 pursuant to 

section 654. Defendant was sentenced on count 3 to the high 

term of seven years in prison and the firearm enhancement was 

stricken.

Defendant filed a timely notice of appeal from the 

judgment.

2 To avoid confusion, we will refer to Miguel Romero by his 

first name only. We mean no disrespect.

3 The indeterminate abstract of judgment erroneously 

recorded the life sentence in count 1 as life without parole. In 

addition, since the jury found the gang allegation not true, the 

entry on the abstract that defendant was sentenced pursuant to 

section 186.22, subdivision (b)(5) was also an error. As we vacate 

the judgment in this opinion, the court will have the opportunity 

to prepare a new abstract.
5

Prosecution evidence

Gang evidence4

Los Angeles County Sheriff’s Department Detective 

Guillermo Sanchez testified as the prosecution’s gang expert. He 

was familiar with the Florencia 13 gang, also called Florencia 

Treces, which he described as a violent criminal street gang

operating in a large area of Los Angeles County known as the 

Florence/Firestone district. The borders of their claimed territory 

include East 55th Street to the north and East 97th Street to the 

south. The crimes commonly committed by members of the gang 

are assaults and gang-related graffiti. Graffiti is placed 

throughout the gang territory to show it is the gang’s territory. 

When a gang member asks, “Where are you from?” it is meant as 

a challenge or to intimidate persons within their territory. 

Calling out one’s gang’s name or saying, “This is Florencia 

Treces,” often precedes an assault.

Detective Sanchez testified to his opinion that defendant 

was a member of the Florencia 13 gang. He based his opinion on 

information he obtained by speaking to other investigators and to 

informants who knew defendant, as well as photographs of 

defendant displaying hand signs signifying his membership in 

the gang. Detective Sanchez spoke to another sheriff’s 

department gang detective, Armando Arevalo, about defendant. 

Detective Arevalo testified that in 2009, he and his partner had 

engaged defendant in conversation, including defendant’s 

admission that he was a member of the Florencia 13 gang. 

4 As the jury found the gang allegation not true, we 

summarize only the gang testimony which is helpful to 

understanding the other witnesses’ testimony.
6

Detective Arevalo noticed at trial that defendant looked older and 

larger than he had in 2009. 

Romero’s testimony

On April 26, 2015, sometime before 11:00 p.m., Romero 

parked his car on 70th Street near his Compton Avenue home. 

He got out of his car carrying his computer and other belongings, 

and as he walked he was approached by a young man he did not 

recognize. The unknown man said, “This is my territory. This is 

Florencia 13. And who are you?” The man also asked whether 

Romero belonged to any gang, or if he was Paisa, meaning a 

Mexican who does not speak English. Romero, 40 years old at 

the time, was not a gang member and told that to the man. As 

Romero continued to walk, the man took his hat, asked for his 

watch, and tried to grab Romero’s wallet from his pocket. The 

man said he wanted the computer or the wallet and threatened to 

“kick his ass.” When Romero refused and continued walking, the 

man hit him from behind. Romero put his computer down and

resisted by pushing but not hitting him. Romero then ran, and as 

he turned onto Compton Avenue, the man loudly yelled, “We’re 

going to follow you where you live and we’re going to kill you.”

When Romero was on Compton Avenue, another man, 

whom he later identified as defendant, emerged from an 

apartment building with a third man. Defendant approached 

Romero and joined the initial assailant in punching Romero with 

closed fists, as the third man stood by. Romero testified that he

had lived in the house just two doors down for about 20 years 

with no problem, and did not want to create any problems, so did 
7

not fight back.

5 As Romero reached the sidewalk outside his 

home, he yelled for Miguel to come outside. Then defendant and 

another man threw Romero to the ground, where they stepped on 

his face and kicked him. Romero heard them saying “Florencia 

13” and “fucking faggots.” Romero, who was frightened,

screamed. Miguel came outside, yelled at the men, and one of 

them ran toward the apartment building defendant had come 

from. Defendant continued to attack Romero until Miguel 

grabbed his arm, told him to stop and to let Romero go. 

Defendant tried to hit Miguel, but then stopped and left.

Miguel helped Romero into their yard and closed the gate. 

Before Miguel could take Romero to the hospital, defendant and 

the other man came back; it had been about a minute. They said, 

“This is Florencia Treces, faggots. You’re going to die.” Romero, 

who was then on his knees, stood and picked up an aluminum 

tube from the ground to defend himself. As he held the tube at 

his side, Romero saw that defendant had a gun. Realizing that 

the tube would be useless, Romero dropped it. The first assailant 

yelled, “Kill him. Kill that fucking faggot,” and told defendant to 

shoot him. As he let go of the tube, defendant shot Romero in the 

chin, breaking his jaw and knocking him to the ground. As 

Romero began to crawl away, he saw defendant fire the gun in 

the direction of where Miguel was hiding on the porch behind a 

pillar. Romero then started running toward the back yard. He 

heard four or five gunshots before he saw defendant run away.

Romero testified that in the year before the shooting, he 

had seen defendant in the neighborhood maybe 15 to 20 times 

5 Romero and Miguel lived in a small house behind a larger 

house on property owned by Romero’s uncles. 
8

and recognized him as a neighbor. Romero kept his distance 

from defendant because Romero and his family were not gang 

members, and they had no problems with defendant.

After the shooting Romero spent more than a week in the

hospital. His jaw was surgically repaired and then over time he 

had more surgeries. A metal plate was inserted and in place for 

about six months, requiring Romero to live on a liquid diet. Two 

years later, he could eat only soft foods and had not recovered 

sensation in parts of his jaw. Romero was out of work for almost 

two years and continued to have nightmares, sleepwalking 

episodes, and disturbing memories of the incident. Romero’s 

family was afraid and moved far away.

Miguel’s testimony

Miguel was awakened by his girlfriend, Maria Bramasco, 

around 11:00 that night, telling him that someone was beating up 

his brother. He ran outside where he saw two men hitting and 

kicking Romero, who was on the ground just outside the gate. As 

they kicked him, the two men were saying “faggot” and “Florencia 

Treces.” As Miguel ran outside, one of the men ran off. Miguel 

identified the man who remained as defendant. Defendant 

continued to kick Romero until Miguel grabbed defendant’s arm

and pulled him off his brother for about five seconds, which gave 

Romero the chance to get up. Defendant then ran to the nearby

yellow apartment building where Miguel had previously seen him 

on occasion.

Miguel brought his brother into their yard and saw that 

Romero’s eyebrow was split, his nose was swollen, and was 

bleeding from his nose and his mouth. Romero also had a lot of 

marks on his chest. About one minute later, defendant returned 

with the other man who had been hitting Romero. Defendant 
9

seemed angry and shouted “faggots” and “Florencia Treces” and a 

lot of “bad words.” Romero picked up a garden post or stake,

which he held down by his side for about five seconds. Romero 

dropped it when defendant was about three or four feet away

from him. Defendant then shot Romero in the face about a 

second after Romero dropped the stake. Miguel ran to a porch 

pillar for cover as defendant said that he was Florencia Treces 

and was going to kill him. Defendant then fired the gun four

times in Miguel’s direction. Defendant walked back and forth on 

the sidewalk as he fired, causing Miguel to have to match

movements so as not to be in his line of fire. Bullets from 

defendant’s gun struck the pillar and the walls of the house. 

Defendant and the other man then ran back toward the 

apartment building. Miguel’s girlfriend called 911.

Miguel was 43 years old at time of trial, was not a gang 

member and had never had any prior conflict with the Florencia 

13 gang or with defendant. Miguel’s girlfriend’s brother was a 

Florencia 13 gang member. After the shooting, afraid of the 

gang, Miguel and his family moved away, and Miguel had to 

change to a job in the new area.

Defense Evidence

The defense called psychologist Kevin Booker, who testified 

as an expert in posttraumatic stress disorder (PTSD). Dr. Booker 

examined defendant, who reported that at the age of 17 he was 

shot and significantly wounded while with another person who 

was shot and killed. After defendant took some diagnostic tests, 

Dr. Booker diagnosed defendant with chronic, fairly severe

PTSD. Dr. Booker also diagnosed defendant with a mood 

disorder consistent with clinical depression, but not necessarily 
10

rising to that level. Dr. Booker found that defendant suffers from 

hypervigilance, which is a core characteristic of PTSD.

Dr. Booker explained that exposures to violence that cause 

significant psychological trauma can affect a person’s ability to 

perceive whether or not certain situations or environments are 

actually dangerous or threatening. Such people sometimes

experience daydreams that are reflective of flashbacks of the 

actual traumatic event, causing them to think they are actually 

back in the traumatic event. They become hypervigilant and 

avoid situations that will remind them of the traumatic event. 

When faced with a situation perceived as threatening, such a 

person may overreact impulsively with an excessive “automatic 

response.” Some PTSD sufferers may experience a fight-or-flight 

response, which can include freezing or fainting. Some 

individuals with PTSD can experience a flight and fright 

response simultaneously.

Defendant testified that in April 2015, he was 21 years old

and had lived in the yellow apartment building on Compton 

Avenue with his two daughters and their mother, Maria Gaspar, 

for about four or five months. He had never had any problems 

with his neighbors and had not seen Romero or Miguel before the 

night of the shooting although they lived two houses away.

That night defendant’s family had a barbeque. At trial 

defendant claimed that it was to celebrate his younger sister’s 

birthday (a date he could not recall), although he had told a 

detective that it was a celebration for his brother who had just 

been released from jail. Defendant’s brother, Jose Luis Herrera 

(Jose Luis), who lived down the street, was there with his 

girlfriend Jasmin and their children, as were Gaspar, defendant’s
11

two daughters, defendant’s mother and her boyfriend, and 

defendant’s sister.

Jose Luis and Jasmin left around 10:30 or 11:00 p.m., and 

five or 10 minutes later, as defendant was cleaning up, he heard 

Jasmin scream out his name, saying, “Jesse, they are jumping 

your brother.” Defendant, his mother, and her boyfriend ran to 

the front, where defendant saw Romero and Jose Luis punching 

each other while Miguel was saying, “Kick his ass for being 

stupid.” Defendant approached and tried pulling Romero away 

from Jose Luis, by bearhugging him. Defendant did not recognize 

Romero and denied seeing a computer. Romero asked defendant, 

“Do you want to pay for him also?” Then Romero began fighting

with defendant. As they fought, Romero said, “If you don’t pay 

for it today you’re going to pay for it later, because I know where 

you live,” which defendant took as a threat. During crossexamination defendant denied that he punched or kicked Romero 

and surmised that Romero probably suffered injuries from 

fighting Jose Luis. Defendant testified that he punched Romero 

when Romero started fighting him, and denied ever saying he did 

not kick him in the head or that Romero had already suffered the 

injuries. Defendant explained that they punched each other, and 

that defendant probably did punch Romero in the face, but he 

could not remember.

Defendant also testified that he heard Romero say to 

Miguel, “Go call Beto and tell him to get that shit,” which 

defendant interpreted as getting a gun. Defendant explained 

that Beto lived in the building where Romero and Miguel lived. 

Defendant had first seen Beto in the alley, two or three months 

after defendant moved there. Beto, who had “Florence” tattooed 

across his chest, asked him, “Where you from?” Defendant 
12

responded that he was not from around there, but grew up there. 

While they talked, Beto kept his hand in his pocket, and 

defendant assumed he had a gun. Defendant denied being a gang 

member and did not think that Romero was a gang member. He 

did not see Beto or a gun the night of the shooting. Defendant 

denied that he ever yelled out the words Florencia or faggots. He 

explained that “faggots” and “flowers” were terms used to insult 

Florencia 13 gang members and that no one would yell them in 

that neighborhood. Defendant explained that he grew up with a 

lot of Florencia 13 members and was a “claimer” but not an 

actual member.

After Romero told Miguel to get Beto, Miguel ran down the 

side walkway of his house. Defendant thought he was going to 

get a gun, so defendant stopped fighting with Romero and went 

to get a loaded gun he had hidden in a drain hole next to the 

front door of his apartment. Defendant explained that he 

retrieved the gun because his family was still outside, and he 

thought that Romero would see the gun, get scared and run

away.

6 When he ran back toward the Romero residence, he saw 

Romero with a pole that looked like a big wooden stick, using it to 

beat Jose Luis. Without pointing the gun, but just holding it

down at his side, defendant told Romero to “get the fuck out of 

here.” Romero stopped hitting Jose Luis, began walking toward 

defendant, holding the pole in a threatening manner, and said,

“What the fuck are you going to do with that?” Defendant then

fired the gun two times without aiming. Frightened, because he 

had never fired a gun before, he instantly ran toward his 

6 Defendant testified that his mother and her boyfriend 

witnessed the shooting. None of defendant’s relatives or friends 

testified at trial.
13

apartment building. Defendant did not think the bullets had hit 

Romero. Defendant explained that he feared for his life just 

before he fired, because he thought Romero was going to hit him, 

which would make him drop the gun, and then Romero would get 

it and shoot him.

Defendant ran to his apartment, threw the gun inside, and 

then went two blocks to his mother-in-law’s home. The next 

morning, he went to his sister’s nearby home where he stayed for 

a few days. Defendant never returned to the apartment on 

Compton Avenue, because he claimed he was afraid of 

retribution.

Defendant did not own legally the .22-calibur revolver he 

used that night. He felt he needed to protect himself and his 

family, because he had been the victim of violence and lived in a 

dangerous neighborhood. He explained that in 2011, when he 

was 17, he and a friend had been shot, and his friend was killed. 

The shooter was caught, and defendant was forced to testify in 

court, even though he claimed that he had been unable see the 

shooter and was afraid “they” would retaliate. Defendant 

claimed that the shooting was not gang-related but concerned a 

girl. Defendant has never received counseling or mental health 

treatment and denied any personality change after he was shot, 

although he was more aware of his surroundings, was wary of 

cars approaching, and once fireworks frightened him.

After his September 2015 arrest, defendant agreed to speak 

with a detective and denied having anything to do with the 

shooting. He also told the detective that he did not even live in 

that neighborhood as he lived with his sister. Defendant also 

denied that he was a member of the Florencia 13 gang.
14

The parties stipulated that the incident report written by 

Sheriff’s Deputies Johnson and Macias included a statement that 

Miguel and Romero said they had been standing on the west curb 

in front of their residence and were approached by the suspects. 

The report included that Romero had a verbal dispute with one of 

them, and when the other suspect approached, he placed the tip 

of the barrel of a small handgun on Romero’s right cheek while 

facing him and fired one shot.

Rebuttal evidence

Deputy Andrew Morrell testified that on April 16, 2011,

while on routine patrol duty with a partner late at night and 

early the next morning, he encountered defendant with several 

Florencia 13 gang members. His partner advised them to get off 

the streets for their own safety. An hour or two later, the 

deputies responded to a “shots fired” call about two or three 

blocks from where they had spoken to defendant. They found two 

gunshot victims, defendant and one of his companions, who later 

died.

Bramasco testified that she and Miguel were asleep in her 

home at 11:00 the night of the shooting. No one else lived there 

with her, although her brother Alberto had lived with her before 

the shooting and has lived with her since then. Alberto had been 

known by his nickname “Beto” since childhood and had been a 

member of the Florencia 13 gang in the past. Bramasco denied 

being a member of the Florencia 13 gang and testified that 

Romero and Miguel were not gang members. Alberto would hang 

out in the back house sometimes, but did not hang out in the 

alley. Alberto lived and worked in Las Vegas and was in Las 

Vegas at the time of the shooting. On the night of the shooting, 

Bramasco woke to the sound of someone calling Miguel’s name. 
15

She looked out the window, saw two men beating and kicking 

Romero, and woke up Miguel. She told Miguel that she saw two 

men fighting with his brother, kicking and hitting him while he 

was on the ground covering his face. When Miguel went outside, 

she stayed in the house, so she was unable to identify either man. 

She did not see Romero kick or punch anyone.

Detective Sanchez testified that gangs keep “hood guns” 

that can be shared by several gang members in the same 

neighborhood and are usually kept in a place that is accessible to 

all of them. Gang members do this in order not to be caught with 

a gun on them or in their homes. In this case, the location of 

defendant’s gun was consistent with it being a hood gun. He 

added that “Flower” is a disrespectful name for Florencia used by 

rival gang members; “faggot” is disrespectful, but not especially 

gang-related. When Detective Sanchez attempted to interview 

defendant on the day of his arrest, he denied any knowledge of 

the shooting, saying he did not live there and was not there on 

the day of the shooting. Defendant claimed that he had no 

friends who were Florencia 13 gang members. When Detective 

Sanchez tried to get defendant to talk about what happened, 

defendant repeated that he was not there: “I wasn’t there. 

That’s it.” Defendant also claimed that he had never heard of the 

shooting and that he did not even know anyone there.

DISCUSSION

I. Verdict Form

Defendant contends the jury’s finding that the count 1 

attempted murder was willful, deliberate, and premeditated must

be reversed because the verdict form did not provide a separate 

finding to be made only after the jury found defendant guilty of 
16

attempted murder. Defendant complains that the verdict form 

failed to afford the jurors an opportunity to convict him of 

attempted murder without a finding of premeditation and 

deliberation. The People counter that defendant has forfeited the 

issue and that it fails on the merits, as defendant has not shown 

prejudicial error. We agree with the People.

The guilty verdict form for count 1 read in relevant part:

“We, the Jury in the above-entitled matter, find the

defendant, Jesse Herrera, guilty of the crime of

attempted willful, deliberate, and premeditated 

murder, of Jose Romero, in violation of Penal Code 

Section 664/187(A), a felony, as charged in Count 1 of 

the Amended Information.”

Not only did defendant fail to object to the verdict form, 

defense counsel expressly approved of all verdict forms proposed 

by the court and later expressly declined the trial court’s offer to 

poll the jury. Defendant argues that there has been no forfeiture 

of the issue because only Courts of Appeal have held that the 

failure to challenge verdict forms in the trial court results in 

forfeiture, yet defendant cites to a California Supreme Court case 

for this assertion. (People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6, 

overruled on another ground in People v. Guiuan (1998) 18 

Cal.4th 558, 568, fn. 3.) Our Supreme Court held in People v. 

Toro that to preserve a challenge on appeal to a verdict form, 

there must be objection to it. The court has so held in other cases 

as well; there must be an objection either at the time the trial 

court proposes the form or when the verdict is returned, or there 

must be a request for clarification of the verdict when the jury is 

polled. (People v. Johnson (2015) 61 Cal.4th 734, 784, citing 

People v. Jones (2003) 29 Cal.4th 1229, 1259, and People v. Bolin

(1998) 18 Cal.4th 297, 330.)
17

Defendant also argues that the failure of the court “to 

provide full and complete verdict forms to the jurors” affected his 

substantial rights and asks that we exercise our discretion to 

reach the issue, as he contends the California Supreme Court did 

in People v. Osband (1996) 13 Cal.4th 622, 689-690. There, the 

court did “not address . . . the question whether the court has any 

duty to provide the jury with verdict forms”; and the court held 

that any such failure in that case was harmless. (Ibid.) The 

court explained that if it is error at all, it is not reversible error 

for a trial court to fail to supply a specific verdict form where the 

jury has been properly instructed; and “[w]hen ‘the jury has been 

properly instructed as to the different degrees of the offense, it 

must be presumed that if [the jurors’] conclusion called for a form 

of verdict with which they were not furnished, they would either 

ask for it or write one for themselves. It certainly could have no 

necessary tendency to preclude them from finding such verdict.’” 

(Ibid., quoting People v. Hill (1897) 116 Cal. 562, 570.)

Here, the jury was thoroughly instructed on the elements of 

attempted murder and the evidence the jury must find to support 

a conviction of attempted murder. The trial court then

instructed: “It is also alleged in counts 1 and 2 that the crime 

attempted was willful, deliberate, and premeditated murder. If

you find the defendant guilty of attempted murder, you must 

determine whether this allegation is true or not true.” (Italics 

added.) The court then provided definitions of the terms willful, 

deliberate, and premeditated, and the following instruction:

“If you find that the attempted murder was preceded 

and accompanied by a clear, deliberate intent to kill, 

which was the result of deliberation and 

premeditation, so that it must have been formed 

upon pre-existing reflection and not under a sudden 
18

heat of passion or other condition precluding the idea 

of deliberation, it is it is [sic] attempt to commit 

willful, deliberate, and premeditated murder.” 

(Italics added.)

The court went on to explain the sort of evidence that was 

required to support a finding of premeditation and deliberation 

and that the prosecution was required to prove it beyond a 

reasonable doubt.7

The trial court then stated: “Include a special finding on 

this question in your verdict, using a form that will be supplied 

for that purpose.” The verdict forms provided for separate 

findings on other special allegations, but not premeditation and 

deliberation. If the jury had been confused, or their findings 

called for a form of verdict with which they were not furnished, 

they would have asked for the form or further instruction, as one 

of the trial court’s final instructions was as follows: “During 

deliberations, any question or request you may have should be 

addressed to the court on a form that will be provided.” The jury 

was indeed provided with such forms, as one was used to request 

testimony readback.

The jury was provided with a not guilty verdict form in the 

following language:

“We, the Jury in the above-entitled matter, find the 

defendant, Jesse Herrera, not guilty of the crime of 

attempted willful, deliberate, and premeditated

murder, of Jose Romero, in violation of Penal Code 

7 The prosecutor also thoroughly went over the instructions 

for attempted murder and the special allegation and made clear 

that the jury was to determine premeditation and deliberation 

only after finding defendant guilty of attempted murder.
19

Section 664/187(A), a felony, as charged in Count 1 of 

the Amended Information.”

Defendant complains that the two forms created an all-ornothing choice that could have left the jury with the impression 

that premeditation and deliberation were elements of simple 

attempted murder. Defendant’s argument fails to show 

prejudicial error. If the jury had found attempted murder but 

had not found that the attempted murder was willful, deliberate, 

and premeditated, the not guilty form would have called for an 

acquittal. Thus, defendant could not have been disadvantaged by 

the all-or-nothing nature of the not guilty form, which is precisely 

why defendant’s challenge to the verdict forms may not be raised 

for the first time on appeal: “If we were to allow the issue to be 

raised for the first time on appeal, a party would have an 

incentive not to complain about the verdict form in the trial court 

in order to secure the advantage of seeking a complete reversal 

on appeal. ([Citation] [‘the forfeiture rule ensures that the 

opposing party is given an opportunity to address the objection, 

and it prevents a party from engaging in gamesmanship by 

choosing not to object, awaiting the outcome, and then claiming 

error’].)” (People v. Johnson, supra, 61 Cal.4th at p. 784.)

Citing People v. Breverman (1998) 19 Cal.4th 142, 

defendant attempts to equate his all-or-nothing contention with a 

failure to instruct as to a lesser included offense. However, the 

attempt fails, as there was no instructional error here, and jurors 

are presumed to have understood and followed the trial court’s 

instructions, unless there is evidence of confusion or the jury 

requested further guidance on the issue. (People v. Gonzales

(2011) 51 Cal.4th 894, 940.) As the jury was properly instructed

and there was no request for a different form or for clarification, 
20

it must be presumed that the verdict form was sufficient to 

reflect their finding that defendant committed attempted murder,

which was premeditated and deliberated. (See People v. Osband, 

supra, 13 Cal.4th at pp. 689-690.)8 Given the clear instructions 

regarding attempted murder and the special allegation, it is 

“unmistakenly clear” that the jury intended to convict defendant 

of attempted murder and to find true the special allegation that 

the attempted murder was willful, premeditated and deliberate; 

thus, defendant’s “‘“substantial rights suffered no prejudice.”’” 

(People v. Johnson, supra, 61 Cal.4th at p. 785, quoting People v. 

Bolin, supra, 18 Cal.4th at p. 331.)

II. Effective assistance of counsel

Defendant contends that trial counsel provided ineffective 

assistance by not requesting an instruction such as CALJIC

No. 3.329 and by failing to object to the defective verdict forms.

The Sixth Amendment right to assistance of counsel 

includes the right to the effective assistance of counsel. 

(Strickland v. Washington (1984) 466 U.S. 668, 686-694 

(Strickland).) It is the defendant’s burden on appeal to 

demonstrate that trial counsel was inadequate and that prejudice 

resulted. (People v. Lucas (1995) 12 Cal.4th 415, 436.) Prejudice 

is shown by “a reasonable probability that, but for counsel’s 

8 We decline defendant’s invitation to disregard People v. 

Osband in favor of perceived dictum in Stone v. Superior Court 

(1982) 31 Cal.3d 503 and People v. Aranda (2019) 6 Cal.5th 1077, 

two cases regarding the procedure to be followed after the jury 

returns a partial verdict.

9 The trial court must give this instruction on request where 

it is supported by the evidence, but has no sua sponte duty to do 

so. (People v. Saille (1991) 54 Cal.3d 1103, 1119.)
21

unprofessional errors, the result of the proceeding would have 

been different.” (Strickland, at p. 694.)10 We presume that 

counsel’s tactical decisions were reasonable, unless “‘“the record 

on appeal affirmatively discloses that counsel had no rational 

tactical purpose for [his or her] act or omission.”’” (Lucas, at 

pp. 436-437.) “If the record on appeal sheds no light on why 

counsel acted or failed to act in the manner challenged, an 

appellate claim of ineffective assistance of counsel must be 

rejected unless counsel was asked for an explanation and failed to 

provide one, or there simply could be no satisfactory explanation.” 

(People v. Carter (2003) 30 Cal.4th 1166, 1211.)

Before any requested modifications, CALJIC No. 3.32 

reads:

“You have received evidence regarding a [mental 

disease] [mental defect] [or] [mental disorder] of the 

defendant (insert name of defendant if more than 

one) at the time of the commission of the crime 

charged [namely, _____] [in Count[s] _____][.] [or a 

lesser crime thereto, namely _____]. You should 

consider this evidence solely for the purpose of 

determining whether the defendant (insert name of 

defendant if more than one) actually formed [the 

required specific intent,] [premeditated, deliberated] 

[or] [harbored malice aforethought] which is an 

element of the crime charged [in Count[s] _____], 

namely, _____[.] [or the lesser crime[s] of _____].”

10 As we concluded above, although the two verdict forms 

regarding count 1 were technically inaccurate, defendant failed to 

show prejudicial error. As defendant was not prejudiced by the 

verdict forms, this basis for claiming ineffective assistance of 

counsel fails. (Strickland, supra, 466 U.S. at p. 687; People v. 

Holt (1997) 15 Cal.4th 619, 703.)
22

Defendant argues that the instruction was supported by 

Dr. Booker’s testimony, combined with defendant’s testimony 

that he retrieved the gun only to frighten Romero and that he 

fired his gun “reflexively” when Romero threatened him with 

what defendant thought was a big wooden stick. Dr. Booker 

testified that defendant suffered from severe PTSD, including 

hypervigilance, which can cause the sufferer to misinterpret 

situations or environments as dangerous or threatening when 

they are not and to overreact impulsively. However, defendant 

did not testify that he fired reflexively, but rather, that he fired 

because he thought that his life was in danger. Indeed, 

defendant described his rather detailed thought processes prior 

to deciding to fire his weapon. Defendant testified that he 

thought Miguel was going to get a gun from Beto, and because 

defendant’s family was still outside, he stopped fighting with 

Romero, went to his apartment building, and retrieved a loaded 

gun that he had hidden in a drain hole next to his front door. 

Defendant claimed that he did not intend to shoot Romero or 

Miguel and hoped to just scare Romero away, but when he ran 

back to the Romero residence, he saw Romero beating Jose Luis

with a pole that looked like a big wooden stick to him. Defendant 

claimed he did not point the gun until Romero stopped hitting 

Jose Luis and began walking toward defendant, holding the pole 

up in a threatening manner, saying, “What the fuck are you going 

to do with that?” Defendant was afraid that Romero would hit 

him, causing him to drop the gun and that Romero would then 

pick it up and shoot him; so fearing for his life, he fired the gun 

two times without aiming. If defendant’s description of Romero’s 

actions was truthful, he may not have overestimated the danger. 

Moreover, he may not have aimed, but his testimony does not 
23

indicate that he fired reflexively, without thinking. It was after

he fired the gun two times that he then panicked, ran to his 

apartment, and threw the gun inside.

Given defendant’s testimony, we agree with the People that 

defense counsel could reasonably have considered the instruction 

unnecessary in light of other instructions given, including 

CALJIC No. 8.67, which the trial court read as follows:

“If you find that the attempted murder was preceded 

and accompanied by a clear, deliberate intent to kill, 

which was the result of deliberation and 

premeditation, so that it must have been formed 

upon pre-existing reflection and not under a sudden 

heat of passion or other condition precluding the idea 

of deliberation, it is it is [sic] attempt to commit 

willful, deliberate, and premeditated murder.” 

(Italics added.) 

The trial court also instructed the jury with several 

instructions on lawful self-defense and defense of others, 

including the following:

“Actual danger is not necessary to justify selfdefense. If one is confronted by the appearance of 

danger which arouses in his mind, as a reasonable 

person, an actual belief and fear that he’s about to 

suffer bodily injury, and if a person in a like 

situation, seeing and knowing the same facts, would 

be justified in believing himself in like danger, and if 

that individual so confronted acts in self-defense 

upon these appearances and from that fear and 

actual beliefs, the person’s right of self-defense is the 

same whether the danger is real or merely apparent.”

As CALJIC No. 3.32 is a limiting instruction, defense counsel 

might not have wanted it to distract the jury from her argument 

that defendant acted in lawful self-defense or defense of others—
24

that he reasonably perceived from Miguel’s and Romero’s actions 

a life-threatening danger to himself and his family. Such an 

argument comports with defendant’s testimony, and defense 

counsel spent more time arguing lawful self-defense than any 

PTSD induced imaginative thinking or impulsive overreaction.

In sum, defendant has not persuaded us that the record 

affirmatively discloses that counsel had no rational tactical 

purpose for omitting a request for CALJIC No. 3.32. Nor has 

defendant met his burden to demonstrate the reasonable 

probability of a different result absent the limitation of the PTSD 

evidence to intent to kill, premeditation, and deliberation. 

Defendant argues that there was a reasonable chance of a better 

result if the jurors had been “specifically instructed through 

CALJIC No. 3.32, that they could affirmatively consider the 

PTSD evidence in relationship to the premeditation and 

deliberation factor.” Defendant also argues that the instruction 

would have highlighted the foundation of his defense theory, and 

then he merely concludes that under the totality of the facts of 

this case, he would have enjoyed a better result if the jurors had 

been “specifically instructed on that element of the defense.”

CALJIC No. 3.32 does not tell the jury that it could 

“affirmatively consider the PTSD evidence”; it tells the jury that 

it may consider the evidence only in determining intent, 

premeditation and deliberation. Nor does it explain the 

relationship of the PTSD evidence to defendant’s defense of the 

premeditation and deliberation allegation, as the instruction 

merely limits any consideration of the evidence of a mental 

disorder to intent, premeditation and deliberation. Nor did the 

absence of the instruction leave the jury without a definition of 

premeditation and deliberation or a misunderstanding of the 
25

evidence the prosecution was required to prove, as we explained 

in part I of our Discussion.

Defendant concludes that prejudice caused by the absence 

of the instruction was exacerbated by the prejudicial effect of the 

defective verdict forms. We reject defendant’s conclusion, as we 

have determined that the verdict forms were not prejudicial.

In sum, defendant has failed to show that defense counsel 

had no rational tactical purpose, that there could be no 

satisfactory explanation for not requesting CALJIC No. 3.32, or 

that the absence of the instruction caused him prejudice. 

Defendant’s claim of ineffective assistance of counsel thus fails.

III. Firearm enhancement (count 3)

Defendant contends that the trial court should have 

stricken as unauthorized, the firearm enhancement imposed in 

count 3, a violation of section 246, shooting at an inhabited 

dwelling. As discussed in parts IV, V, and VI below, we vacate 

defendant’s sentence in its entirety and discuss this issue only to 

clarify the record.

The jury found the allegation that the defendant personally 

and intentionally discharged a firearm within the meaning of 

section 12022.53, subdivision (c) to be true. Section 12022.53, 

subdivision (c) creates an enhancement for the commission of a 

felony specified in subdivision (a) of section 12022.53, but that 

subdivision does not list section 246. It is subdivision (d) of 

section 12022.53 that creates an enhancement to a conviction 

under section 246 where the personal and intentional discharge 

proximately causes great bodily injury or death. Although the 

amended information in this case alleged the firearm 

enhancement under section 12022.53, subdivisions (c) and (d) as 

to counts 1 through 4, the prosecutor stated at the instruction 
26

conference (albeit not very clearly) that subdivision (d) should be 

alleged only as to counts 1 and 4, and that as to count 3, only 

subdivision (c) should be alleged. The jury instruction regarding 

the section 12022.53, subdivision (d) allegation was then modified 

to refer only to counts 1 and 4. The verdict form for count 3 

included a space for finding true or not true the allegation that 

defendant personally and intentionally discharged a firearm 

within the meaning of section 12022.53, subdivision (c), but the 

form did not include a great bodily injury allegation.

The People agree that the enhancement is not authorized 

but asserts that defendant is mistaken in his position that the 

trial court did not strike it. The court did strike the enhancement 

and defendant’s contention is thus moot. Defendant counters 

that the record does not clearly indicate that the enhancement 

was stricken, and if it was, it should not appear on the abstract of 

judgment as “PS” for punishment struck; rather, it should not be 

listed on the abstract at all. 

While the court’s order striking the enhancement was 

unclear, we conclude that it was the court’s intention to do so. 

Initially, the trial court sentenced defendant on count 3 to the 

high term of seven years plus the 20-year enhancement under 

section 12022.53, subdivision (c) for a total of 27 years. After 

pronouncing sentence on the other counts, the trial court stated: 

“The court misspoke in the sentence of [defendant]. The 12022.53 

C enhancement and the 12022.53 D enhancement cannot both be 

imposed. So the total sentence is seven years on count 3 and in 

the indeterminant sentence, it’s life, plus 25 to life. So it’s seven 

years, plus life, plus 25 to life. But I can also say life the plus 25 

to life on the 12022.53 D enhancement. They both involvement 

[sic] the same thing, use of guns.” The reporter’s transcript 
27

ended there, with a notation that there was then a discussion off 

the record and that the proceedings concluded. 

It appears that when the trial court said that it could not 

impose both the section 12022.53, subdivision (c) and (d) 

enhancements, it meant that it could not impose either of them, 

as the clerk’s minutes of the sentencing hearing shows that the 

subdivision (c) enhancement was stricken and makes no mention 

of the subdivision (d) enhancement. On pages 2 and 3 of the 

minutes it is stated that as to count 3 the court ordered 

defendant to serve seven years in any state prison, that the court 

selected the upper term of seven years as to count 3, and “[a]s to 

the base term count 3: serve 7 years.” On page 4, the minutes 

state: “The court strikes the PC 12022.53(c) enhancement as to 

count 3. [¶] Total sentence imposed in count 3 is 7 years.”

In our prior opinion we ordered a modification of the 

abstract of judgment to reflect that the enhancement was 

stricken. We ordered the trial court to correct the abstract that 

the sentence on count 1 was life in prison plus 25 years to life for 

the firearm enhancement.11 We describe the modification of the 

original abstract of judgment as it might be useful in avoiding 

such errors upon resentencing. We do not purport to suggest to 

the trial court how defendant should be resentenced.

IV. Discretion to strike or impose a lesser firearm 

enhancement

Defendant requested the trial court to exercise its 

discretion to strike the firearm enhancement found true as to 

counts 1 (and 3) under section 12022.53, subdivision (h) and 

section 1385, which gives the sentencing court the discretion to 

11 See footnote 3, ante.
28

strike or dismiss firearm enhancements. The trial court denied 

the motion, and defendant now contends that since it was unclear 

that the trial court understood it had discretion not only to strike 

the entire enhancement as to count 1, but also to impose a lesser

included firearm enhancement, the matter should be remanded 

for the trial court to consider this discretion.

The only firearm enhancement in count 1 that was found 

true by the jury was that defendant personally and intentionally 

discharged a firearm, a handgun, which caused great bodily 

injury to Romero within the meaning of section 12022.53, 

subdivision (d). In our first opinion, we disagreed with People v. 

Morrison (2019) 34 Cal.App.5th 217 (Morrison), which held that 

section 12022.53, subdivision (h) allows a trial court to exercise 

discretion to impose an uncharged lesser included enhancement 

in the interests of justice pursuant to section 1385. (Morrison, at 

pp. 222-223.) We declined defendant’s request for remand on this 

ground. The California Supreme Court recently agreed with 

Morrison in Tirado, supra, 12 Cal.5th 688, overruling the 

appellate court that had disagreed with Morrison. In doing so, 

the court resolved a split in the Courts of Appeal on the issue. 

(Tirado, supra, at pp. 694-697.)

The People agree that the case must be remanded for 

resentencing in light of Senate Bill No. 567 (2021-2022 Reg. 

Sess.) (Senate Bill 567) and Senate Bill No. 81 (2021-2022 Reg. 

Sess.) (Senate Bill 81), and that under the full resentencing rule, 

the court may also revisit the firearm enhancement.12

12 The People do not agree that the matter should be 

remanded for the trial court to consider discretion discussed in 

Tirado, noting that Morrison was published on April 11, 2019, 

and defendant was sentenced more than one month later, on 
29

V. Senate Bill 567

Defendant also seeks remand for resentencing under 

Senate Bill 567, which became effective on January 1, 2022, and 

applies retroactively to nonfinal judgments. (People v. Garcia

(2022) 76 Cal.App.5th 887, 902.)13

May 22, 2019. The first published decision to disagree with 

Morrison was the Court of Appeal decision underlying Tirado, 

supra, 12 Cal.5th 688, prompting the prosecution to assert that 

the trial court must therefore have been aware of its discretion to 

impose an uncharged lesser included enhancement as an 

alternative to an outright denial of defendant’s request to strike 

the enhancement altogether, and we must presume that the court 

appropriately chose not the exercise that discretion.

13 The legislation amended the determinate sentencing law, 

which affects the trial court’s discretion and authority to impose 

one of three statutory terms of imprisonment, known as the low, 

middle, and upper terms.

Section 1170, subdivision (b)(1) now provides: “When a 

judgment of imprisonment is to be imposed and the statute 

specifies three possible terms, the court shall, in its sound 

discretion, order imposition of a sentence not to exceed the 

middle term, except as otherwise provided in paragraph[ ](2).” 

Section 1170, subdivision (b)(2) provides in part: “The court may 

impose a sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the 

imposition of a term of imprisonment exceeding the middle term, 

and the facts underlying those circumstances have been 

stipulated to by the defendant or have been found true beyond a 

reasonable doubt at trial by the jury or by the judge in a court 

trial.”

Section 1170, subdivision (b)(6)(A) and (B) provides in part: 

“Notwithstanding paragraph (1), and unless the court finds that 

the aggravating circumstances outweigh the mitigating 
30

The statute now requires the trial court to “set forth on the 

record the facts and reasons for choosing the sentence imposed[, 

and the] court may not impose an upper term by using the fact of 

any enhancement upon which sentence is imposed under any 

provision of law.” (§ 1170, subd. (b)(5).)

It is not clear what aggravating circumstances were

considered or how they were weighed in the trial court. At the 

sentencing hearing after arguments of counsel, the court 

commented: “I must admit that the court was struck by the 

disparity between the fact that the defendant has no prior record 

and the level of violence that’s involved in this case.”14

The trial court explained its determinate sentencing 

choices as follows:

“I think it’s entirely appropriate that the gang 

allegation was found to be not true. [¶] Nonetheless, 

he is a member of a gang. The gun was stored in this 

drain pipe opening or whatever it was for 

circumstances that imposition of the lower term would be 

contrary to the interests of justice, the court shall order 

imposition of the lower term if any of the following was a 

contributing factor in the commission of the offense: [¶] (A) The 

person has experienced psychological, physical, or childhood 

trauma . . . . [¶] (B) The person is a youth, or was a youth as 

defined under subdivision (b) of Section 1016.7 at the time of the 

commission of the offense.” A “youth” as defined in subdivision 

(b) of section 1016.7 “includes any person under 26 years of age 

on the date the offense was committed.”

14 The prosecutor had pointed out that defendant had shot an 

unarmed person in the face, just before the trial court made this 

statement. The People infer that the court apparently relied on 

the circumstance in aggravation that the crime involved great 

violence. (Cal. Rules of Court, rule 4.421(a)(1).)
31

accessibility outside of the house. He did leave and he 

returned. Even if he had a fear that this Beto might 

be present, when he returned, Beto was not present. 

There was no longer any basis for fearing that there 

might be armed retaliation by someone else who was 

not present. At that point he shot one person in the

face and then there were additional shots thereafter 

while they were fleeing. [¶] The court had initially 

considered seriously [the defense] request of 

exercising its discretion to strike the term of the 

enhancement on the gun use allegation, but under 

the total circumstances of the case, I feel that's 

inappropriate. [¶] The court is going to select the 

count 3 as the principal term and sentence the 

defendant to [the high term of] seven years.”

We find remand is appropriate to give the trial court the 

opportunity to resentence defendant in light of changes effected 

by Senate Bill 567. (See People v. Buycks (2018) 5 Cal.5th 857, 

893 [“on remand for resentencing ‘a full resentencing as to all 

counts is appropriate, so the trial court can exercise its 

sentencing discretion in light of the changed circumstances’”].)

VI. Senate Bill 81

The People also agree with defendant that at resentencing 

the trial court must apply Senate Bill 81, which amended section 

1385, effective January 1, 2022. (Stats. 2021, ch. 721, § 1.) We 

agree. The amended statute expressly applies to sentencings 

occurring after its effective date. (§ 1385, subd. (c)(7).) Section 

1385 now specifies “factors that the trial court must consider 

when deciding whether to strike enhancements from a 

defendant’s sentence in the interest of justice.” (People v. Sek

(2022) 74 Cal.App.5th 657, 674.) 
32

VII. Section 1109

Defendant contends that the recently added section 1109 

applies retroactively, requiring a reversal of his conviction of 

attempted murder (count 1) and remand for retrial. Defendant 

relies on People v. Burgos (2022) 77 Cal.App.5th 550 (Burgos), in 

which the majority held that section 1109 was retroactive 

because “the California Supreme Court has clarified the scope of 

the Estrada rule, expressly holding that a new statute may apply 

retroactively even if it concerns purely procedural changes that 

do not directly reduce the punishment for a crime.” (Burgos, 

supra, at p. 565.)15 The “Estrada rule” is “a limited rule of 

retroactivity that applies to newly enacted criminal statutes 

intended to reduce punishment for a class of offenders.” (People 

v. Buycks, supra, 5 Cal.5th at p. 881, citing Estrada, supra, 63 

Cal.2d at p. 745; see Estrada, at p. 883, fn. 8; People v. Superior 

Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara).) Otherwise, “No 

part of [the Penal Code] is retroactive, unless expressly so 

declared.” (§ 3.)

As Justice Elia pointed out in his dissent in Burgos, neither 

Estrada, Lara, nor “any other [authority] has ever applied the 

Estrada rule to a statute, like section 1109, that does not alter 

the punishment for an offense, make a lesser punishment 

possible, or change the elements of an offense or a defense. 

Section 1109, unlike all of the amendatory statutes to which the 

15 Defendant also claims that authority for this contention is 

found in People v. Delgado (2022) 74 Cal.App.5th 1067, 1087, 

which held: “Assembly Bill 333’s amendments to section 

186.22 . . apply retroactively . . . .” (Italics added.) The opinion 

does not discuss section 1109 other than to mention that it was 

added by Assembly Bill No. 333 (2021-2022 Reg. Sess.).
33

Estrada rule has been applied, is a prophylactic rule of criminal 

procedure expressly intended to employ new procedures aimed at 

enhancing the fairness of future criminal proceedings.” (Burgos, 

supra, 77 Cal.App.5th at p. 572 (dis. opn. of Elia, J.).)

Similarly, as stated in People v. Perez (2022) 78 

Cal.App.5th 192: A new law that directly, indirectly or 

potentially ameliorates punishment may be applied retroactively, 

but section 1109 does not directly, indirectly or potentially 

ameliorate punishment; instead it “is a procedural statute that 

ensures a jury will not be prejudiced by the introduction of 

evidence to support gang enhancement allegations . . . .” (Id. at 

p. 207.)

As section 1109 does not expressly declare itself retroactive, 

we agree with Perez and with the Burgos dissent that section 

1109 is not retroactive. (People v. Perez, supra, 78 Cal.App.5th at 

p. 207; Burgos, supra, 77 Cal.App.5th at p. 569 (dis. opn. of Elia, 

J.).)

VIII. Assembly Bill No. 177

Defendant contends that when the trial court sentenced 

him in 2019 and ordered him to pay a $500 restitution fine, 

additional fees were imposed pursuant to section 1202.4, former 

subdivision (l) and section 2085.5, former subdivision (e), 

provisions which authorized collecting authorities to impose 

administrative and collection fees of up to 10 percent of the fine.16 

Defendant concludes, “Following the implementation of Assembly 

Bill 177, the fees must be reconsidered.” Assembly Bill No. 177 

16 Defendant cited only to that page of the record where the 

restitution fine was imposed. We have found no imposition of 

administrative fees in the sentencing transcript. Respondent 

represents that no such fees were assessed by the trial court.
34

(2021-2022 Reg. Sess.) (Assembly Bill 177) eliminated those 

provisions. The trial court may no longer impose administrative 

fees related to collection of restitution fines. (Stats. 2021, ch. 257, 

§§ 19-20, 36, (2021-2022 Reg. Sess.).)

As the People observe, Assembly Bill 177 also amended 

section 1465.9, subdivision (b) to read: “On and after January 1, 

2022 the balance of any court-imposed costs pursuant to Section 

1001.15, 1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 

1203.1m, 1203.4a, 1203.9, 1205, 1214.5, 2085.5, 2085.6, or 

2085.7, as those sections read on December 31, 2021, shall be 

unenforceable and uncollectible and any portion of a judgment 

imposing those costs shall be vacated.” (Stats. 2021, ch. 257, 

§ 35.)

Thus, if any such fees were assessed against defendant,

they are unenforceable, and if defendant identifies any such fees, 

he may have them vacated.

DISPOSITION

The judgment of conviction is affirmed. The sentence is 

vacated, and the matter is remanded for a new sentencing 

hearing, guided by the newly enacted laws discussed in this 

opinion.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.