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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C075801

                   Plaintiff and Respondent,                                    (Super. Ct. No. SF119827A)

         v.

MIGUEL ARAIZA, JR.,

                   Defendant and Appellant.




         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.




                                                             1
       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 gang-
crime 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.

                                               2
        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.

                                              3
       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.”

                                             4
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.

                                             5
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.

                                              6
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.



                                               7
       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

                                              8
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

                                             9
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

                                             10
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

                                             11
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 cross-
examination, 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-in-
chief.
         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.”

                                             12
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

                                              13
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

                                             14
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

                                             15
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

                                            16
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

                                             17
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.

                                             18
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

                                             19
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.

                                            20
“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



                                              21
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.

                                             22
                                 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 ex-
girlfriend. 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].

                                            23
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,

                                             24
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

                                             25
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

                                              26
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

                                              27
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.)

                                             28
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

                                             29
(§ 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.

                                            30
(§ 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.


                                               31
