People v. Sanchez CA1/1 ( 2021 )

Filed 12/20/21 P. v. Sanchez CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A157538
v.
GUILLERMO GARCIA SANCHEZ, (Contra Costa County
Super. Ct. No. 5-170849-4)
Defendant and Appellant.
Defendant Guillermo Sanchez stabbed Isela Moreno to death on
Thanksgiving 2015. At the time, 21-year-old Sanchez and 23-year-old
Moreno were in a sexual relationship, and she was cooking for him at his
brother’s house. L.P., who was affiliated with the brothers’ gang, witnessed
the killing. L.P. was initially also a suspect, and Sanchez’s defense at trial
was that L.P. was the killer.
A jury convicted Sanchez of first degree murder, and he was sentenced
to 31 years to life in prison. On appeal, he claims that (1) the evidence was
insufficient to support a conviction of first degree murder; (2) the trial court
erred by admitting gang evidence; (3) his trial counsel rendered ineffective
assistance by failing to seek redactions of portions of police interviews in
which detectives effectively opined Sanchez was guilty; (4) accomplice
instructions should have been given based on L.P.’s possible role in the
murder; (5) the prosecutor erred by appealing to the jury’s sympathy and by
1
vouching for L.P.; and (6) the cumulative effect of these errors requires
reversal. Sanchez also claims, and the Attorney General agrees, that the
matter must be remanded for the trial court to exercise its new discretion
under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393)
whether to strike a five-year enhancement for a prior serious felony under
Penal Code1 section 667, subdivision (a) (section 667(a)). We agree that
remand is required for this purpose but otherwise affirm. 2
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Background
At the time of the murder on November 26, 2015, Sanchez lived with
his older brother, Victor, and a few roommates in Victor’s house in North
Richmond (the house).3 Victor and his girlfriend, with whom he had two
young children, used the master bedroom upstairs, and Sanchez slept in the
living room. Sanchez and Victor were members of VFL (Varrio Frontera
Locos), a North Richmond subset of the Sureño street gang. L.P., a friend of
the brothers’ who was almost 19 years old, often spent the night at the house
All further statutory references are to the Penal Code unless
1
otherwise noted.
2Sanchez argues in a related petition for a writ of habeas corpus that
he received ineffective assistance of counsel because his trial counsel failed to
seek redaction of L.P.’s interviews with police or a limiting instruction about
them and failed to object to the prosecutor’s alleged vouching for L.P. By
separate order, we deny Sanchez’s habeas petition. (In re Guillermo Garcia
Sanchez, A163470.)
3 Because Sanchez and his brother have the same last name, we refer
to Victor by his first name. No disrespect is intended.
2
and also slept in the living room.4 At trial, L.P. denied being a VFL member
but admitted to associating with the gang.5
Sanchez had a longtime girlfriend—not Moreno—who was pregnant
with his child. Although he and his girlfriend had recently broken up, they
were still in contact and exchanging messages about their relationship.
According to Victor, Sanchez loved his girlfriend “more than anything in the
world,” and the couple’s messages before the murder showed Sanchez wanted
to get back together but she was concerned he was seeing other women. On
Thanksgiving morning, Sanchez texted the girlfriend, “I really love u.” That
afternoon, he sent her a message she suspected was for another woman. The
girlfriend’s last message to him, about an hour before the murder, was, “Man
be straight up do yu have a girl??? Were yu talking to one in a serious way???
I want honesty! And if yu feel sum for her tell me too damnnit!”
In fact, Sanchez was sleeping with Moreno, who changed her Facebook
status to “In a Relationship” on October 23. Moreno had a young son with
another Sureño gang member but was no longer with that man. On
November 18, Moreno texted Sanchez that she was going to get a pregnancy
test. Four days later, she told him that she was not pregnant and did not
have any sexually transmitted infections, referring to several details of their
sexual interactions. In their exchanges during this time, Sanchez was often
4Victor, who testified while in custody for failing to appear as a
witness, claimed that L.P. was not his friend and never stayed at the house.
5 L.P. had convictions for domestic violence and being a felon in
possession of a firearm. It was stipulated that during the incident leading to
the latter conviction, which occurred about six weeks after Moreno’s murder,
L.P. “was arrested in a car containing two firearms with at least one member
of the Sureño street gang.”
3
unresponsive and seemed primarily interested in whether she could get
narcotics for him.
L.P. testified that a few days before Thanksgiving, he woke up in the
house’s living room and saw Moreno lying on top of Sanchez on a recliner
chair.6 L.P. originally met Moreno when she commented on one of his
Instagram posts. He exchanged messages with her on social media, but he
stopped contacting her after seeing her with Sanchez, and he denied ever
being romantically interested in her.
Victor confirmed that Moreno often stayed overnight at the house with
Sanchez, although he was not sure whether they were in a relationship.
Victor’s girlfriend testified that she had seen Moreno at the house a few times
before, including shortly before Thanksgiving, with a group of other young
people who often hung out there.
Victor and Moreno sometimes communicated directly with each other,
and on November 20 she texted him that she did not know “what [was] wrong
with [Sanchez] . . . but he [was] acting [different] with [her].” Victor later
told police7 that Moreno told him she was pregnant and thought the baby was
Sanchez’s. At some point, Victor heard Sanchez tell Moreno to stop calling
and coming over, and Victor agreed he “had the impression that [Sanchez]
wasn’t as romantically interested in [Moreno] as she was in him.”
B. Thanksgiving
On Thanksgiving morning, Sanchez and Victor’s mother came over to
the house to celebrate with her sons. She testified that Sanchez was not
6Moreno’s cell phone records suggested she was at Sanchez’s house late
the night of November 20 and spent the night there on at least November 23.
7The Contra Costa County Sheriff’s Department responded to and
investigated the murder, but we refer to it and its officers as “police” for
simplicity.
4
there when she arrived, but Victor, Victor’s girlfriend, and their infant
daughter were still in bed. Later that morning, Victor and his girlfriend went
to run errands and left the baby with Sanchez’s mother.
Moreno had texted Sanchez earlier that morning that she wanted to
make tamales for him. When Victor and his girlfriend returned from their
errands, Moreno was waiting at the house’s front door, and they let her
inside. Shortly before 5:00 p.m., Moreno sent Sanchez a text suggesting she
was at the house and told him, “Get your ass home.”
Victor’s girlfriend cooked dinner, and she, Moreno, Victor, and
Sanchez’s mother ate together.8 Several other people were in the backyard.
Sanchez’s mother told police she did not know Moreno but thought she might
be Sanchez’s girlfriend because Moreno was being “very friendly” toward her.
Sanchez’s mother asked about Sanchez because she had not seen him
recently, and Moreno said, “Oh, yes. I haven’t seen him either, that’s why I
came to . . . look for him and see if I see him.”
Sanchez’s mother testified that while she and Moreno were still in the
kitchen, Sanchez came inside from the backyard. His mother said, “[C]ome
here and give me a hug,” and Moreno also told him to “give [his] mom a hug,”
which he then did. Sanchez’s mother testified that Sanchez seemed
“distracted” but not angry, and he appeared to be “looking for something.”
She and Moreno offered him food, but he said he would eat later and returned
to the backyard.
8Victor testified that he saw Moreno outside the house, but he could
not recall seeing her inside. He claimed that he could not remember much
because his brain was “fried up” from drug use and he had been drinking and
using drugs that Thanksgiving.
5
After eating, Sanchez’s mother, Victor, and Victor’s girlfriend went
upstairs to the master bedroom with the baby to watch a movie. Victor told
police that Moreno stayed downstairs to make tamales.
C. The Stabbing
L.P., the only witness who saw Sanchez stab Moreno, recounted various
versions of the events to police and at trial.
1. November 2015 police interview
L.P. told police that he arrived at the house around 4:00 p.m. on
Thanksgiving. He had spent the previous night at his girlfriend’s house,
which was a few blocks away, and had gone to his mother’s house in San
Pablo to change clothes before returning to North Richmond. When L.P.
entered the house, Sanchez was on the couch in the living room with Moreno,
whom L.P. claimed he had never met before. L.P. said the two were “quiet.”
Moreno “seemed pretty happy” and was looking at her phone, and Sanchez
“looked like he ain’t got no sleep.”
L.P. and Victor, who had been upstairs, went into the backyard to
smoke a cigarette.9 L.P. claimed that he and Victor then went upstairs to the
master bedroom to watch “a scary movie.” L.P. got bored after about half an
hour and left to buy more cigarettes, and when he returned to the house he
gave one to Sanchez.
Meanwhile, Victor had come back downstairs. Moreno, who had
“started cooking . . . tamales,” asked Victor if he ate pork, and he responded,
“No, we’re allergic to pork.” L.P. and Victor then went back upstairs, and
when L.P. went downstairs again, Sanchez and Moreno “were arguing about
9 Victor testified that that he saw L.P. outside the front of the house
that morning and gave him a cigarette but did not see him inside until much
later that day, when he alerted Victor to the stabbing.
6
something” in Spanish, a language he did not understand. According to L.P.,
he returned upstairs and told Victor that the couple was arguing. Victor told
L.P. to “go try and stop them from arguing,” but L.P. did not believe he could
do anything about it. Instead, L.P. went back downstairs with Victor and
“smoked another cigarette” before leaving around 5:00 p.m. L.P. claimed that
when he left, Sanchez and Moreno were still arguing.
L.P. changed his story after police suggested it was inconsistent with
what Sanchez’s mother had told them. He now stated that Sanchez’s mother
and Victor’s girlfriend were also in the bedroom when he went upstairs to tell
Victor that Sanchez and Moreno were arguing. According to L.P., he heard
what sounded like a physical fight downstairs, and he and the others went
downstairs. Sanchez was gone, and L.P. did not see Moreno but saw a lot of
blood in the kitchen.
L.P. “just got scared,” because he was worried that police were “gonna
think that [he] had somethin’ to do with it.” He left the house through the
backyard, and after hopping over the fence he saw “somebody runnin’.” L.P.
claimed that he did not own a cell phone, and he did not call for help because
he believed Sanchez’s family would do so.
After police pressed L.P. to tell the truth, questioning “what was it that
freaked [him] out that made [him] run up those stairs and knock on that
door,” he next stated that Sanchez and Moreno had been “fist fighting” in the
living room. L.P. claimed that after Sanchez threw a punch at Moreno’s face,
he told Sanchez to stop, but Sanchez and Moreno exchanged punches. L.P.
did not attempt to break up the fight physically because if either of them hit
him accidentally, it would “get [him] mad” and there would “end up bein’
three people fighting.”
7
Finally, after police told L.P. he could “go home” if he told the truth, he
said that after Sanchez and Moreno began fighting, he saw Sanchez “grab a
knife” from the kitchen island. Holding the knife, Sanchez then walked
toward Moreno, who had followed him. L.P. claimed he did not see Sanchez
actually stab Moreno, but he thought Sanchez was going to kill her because
“they’re not fightin’ if they’re not mad. And he’s not gonna go grab a knife
just . . . ‘cause I mean she’s . . . little.” 10
2. Trial testimony
At trial, L.P. testified that when he arrived at the house, Sanchez’s
family had already eaten dinner, and Moreno was getting ready to make
tamales. Sanchez’s family members were upstairs, and Sanchez was not
there. According to L.P., Sanchez arrived about 30 minutes later, and he
seemed “a little mad or something.” Contrary to what L.P. told police, he
testified he could not remember Sanchez and Moreno talking to each other or
otherwise interacting. L.P. also claimed that he did not spend any time with
Victor that day.
L.P. testified that he and Sanchez went into the backyard to smoke a
cigarette and then returned to the living room. Once inside, L.P. and
Sanchez sat across from each other on couches in the living room. Moreno
was sitting on a chair at the kitchen island while she prepared the tamales.
At some point, L.P. entered the kitchen. While he was standing there,
Sanchez also came into the kitchen and got a knife from the island. Sanchez
then returned to the living room and sat down, and L.P. opened a cabinet “to
get a glass to get something to drink.”
When she died, Moreno was five feet tall and weighed about 95
10
pounds. According to his driver’s license, Sanchez was five feet six inches tall
and weighed about 160 pounds. L.P. was six feet one inch tall and weighed
about 220 pounds.
8
L.P. testified that when he turned from facing the cabinet, he saw
Sanchez stab Moreno, who was still sitting at the island. Moreno then turned
in her seat and “threw a punch” toward Sanchez’s shoulder. According to
L.P., Moreno did not make any noises after being stabbed.
D. L.P. Gets Help Before Fleeing.
L.P. testified that he immediately “ran upstairs” after seeing Moreno
hit Sanchez and did not see her get stabbed again. L.P. knocked on Victor’s
door and told Victor that Sanchez was killing Moreno. L.P. indicated he did
not “think it was important to help [Moreno]” or his “business to stop
whatever’s happening.” Rather, L.P. went to get Victor “because that’s
[Sanchez’s] brother. You know if it’s his brother that grabs him, he’s not
going to try to swing on him.”
Victor’s girlfriend testified that while the family was watching the
movie, she heard Moreno “talking loudly.” The girlfriend then heard
“someone screaming for Victor downstairs” before someone knocked on the
bedroom door. Similarly, Sanchez’s mother testified that as she was
watching the movie, she heard “a lot of commotion” downstairs. Then,
someone knocked loudly and “urgent[ly]” on the bedroom door.
Victor opened the door for L.P., who looked “scared” and “panicked.”
There was conflicting evidence about what L.P. said to Victor. Victor’s
girlfriend testified, as L.P. did, that L.P. said, “[H]e’s killing her.” Sanchez’s
mother told police that L.P. told Victor to come downstairs. At trial, however,
she claimed not to understand what L.P. said because it was in English. And
while Victor told police that L.P. said, “[C]ome get your brother, . . . he’s
fuckin’ killin’ her,” Victor testified that he could not recall L.P. saying this.
L.P., Victor, and Victor’s girlfriend went downstairs while Sanchez’s
mother stayed in the bedroom with the baby. L.P. testified that he saw
9
Moreno lying on the kitchen floor, but he did not see Sanchez. L.P. then ran
outside to the backyard and “hopped the fence” to a neighboring backyard.
He testified that as he left, he could hear Victor “screaming [L.P.’s] name.”
Victor testified that by the time he and his girlfriend came downstairs,
L.P. had run away. The two saw Moreno, “covered in blood,” lying on the
kitchen floor. Victor testified that Moreno was still breathing, and he went
back upstairs to tell his mother to call the police “because it looked kind of
critical.”
Sanchez’s mother testified that she came out of the bedroom and met
Victor and his girlfriend, who were coming back up the stairs. They both
seemed “scared,” and Victor’s girlfriend indicated that Moreno was bleeding.
Sanchez’s mother told the girlfriend to call for help, which she did. Sanchez’s
mother then went downstairs to the kitchen, where she saw Moreno lying on
the floor with blood around her.
Victor stated that while he was upstairs, he heard Sanchez calling his
name. He then saw Sanchez, who “looked scared” and “panicked” but did not
have any blood on him. Sanchez was trying “to leave out the front door,” and
Victor told his brother that the police had been called. According to Victor,
Sanchez then ran out the back door.
L.P. testified that meanwhile, after he went over the backyard fence, he
saw Sanchez in an alleyway. Sanchez had a cut on his finger and a “[t]rickle”
of blood from his hand, but L.P. did not see a knife. L.P. testified that he told
Sanchez “to back up” because he was afraid that Sanchez might try to kill
him too. L.P. then left and eventually went to his girlfriend’s house.
E. The Physical Evidence and Subsequent Events
The police were dispatched at 6:44 p.m., and the first officer arrived
three minutes later. Victor’s girlfriend was standing in front of the house
10
holding the baby and appeared to be “in shock.” Upon entering the house, the
officer saw “blood drops in the hallway and in the first two steps of the
stairwell” that led to the home’s second floor. There was also “blood spatter”
on the hallway’s wall. The blood on the hallway floor formed a “trail [that
led] towards the back of the house.” Victor and his mother, who were at the
top of the stairs, also appeared to be “in shock.” The officer did not observe
any blood on them or on Victor’s girlfriend.
The officer followed the blood trail to the kitchen, where he observed
Moreno “on her back with both her arms wide out, her eyes open, in a pool of
blood.” Near her feet was “a small table . . . with a chair that was upside
down on the table,” and another chair was lying on its side nearby. The door
to the backyard was “wide open.”
The officer could tell that Moreno had been stabbed many times “[f]rom
her neck . . . all the way down to her . . . bottom breast line,” and blood was
“all over” her and the floor. Moreno was not breathing, and the officer’s
attempts to resuscitate her were unsuccessful. She was pronounced dead at
7:01 p.m., although the officer believed she was dead by the time he arrived.
Moreno, who was not pregnant when she died, had 41 stab wounds to
her upper body. The murder weapon was never recovered, but the
pathologist who performed her autopsy testified that it was a knife whose
blade was likely five to six inches long and half an inch to an inch wide.
Moreno had two deep wounds on both sides of her neck, all four of
which would have been fatal because they cut through her jugular vein and
carotid artery. There were also about a dozen wounds to her chest, breasts,
and upper abdomen, as well as a deep wound to her left armpit. The knife
fractured her sternum and six of her ribs, and her lungs and heart were
punctured, which would also have been fatal. The pathologist testified that
11
her injuries would have caused “profuse bleeding,” including blood “spurting”
from the carotid wound. He opined that the knife would likely have become
“bloody” and “slippery in the hands of the assailant,” who might have cut
himself as a result.
Moreno also had numerous defensive wounds, primarily on her left
forearm and the palm and back of her left hand. The pathologist testified
that it appeared Moreno “tried to protect herself, either by using her arms to
shield her body or by actually trying to grab for the knife. There’s evidence of
both types of defensive wounds.” She also had three shallow wounds on her
back, near her right shoulder. The pathologist explained that although most
of the wounds were on the front of Moreno’s body, suggesting that she and
her assailant “were face to face for the bulk of the interaction,” the wounds on
her back suggested that at some point she “was either trying to leave or
trying to escape.” None of her wounds would have been immediately fatal,
permitting her to try to protect herself, but “as she lost blood, she would have
lost strength, gotten less aware, became drowsy, and then collapsed and then
died” from blood loss.
Several bloodstains were on the walkway from the house’s front door to
the sidewalk and on the sidewalk near the driveway. A criminalist testified
that the bloodstains “appear[ed] to [come] from the same source,” as they
formed “a trail from the front door down the walkway [and] . . . around . . .
the driveway.” DNA testing on four representative samples from the trail of
blood drops found in and around the house confirmed it was Sanchez’s blood.
It was stipulated that in a search of another Sureño gang member’s
home in Pittsburg, police discovered a sweatshirt, jeans, a glove, and a cell
phone, all of which were “bloody.” It was also stipulated that Sanchez was
wearing the clothes when he arrived at the Pittsburg house on the night of
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the murder, at which point he asked for a change of clothes and then left,
leaving the bloody items behind. The blood was Sanchez’s, but Moreno’s
DNA could not be detected on the items. Sanchez’s DNA was not detected on
clothes Moreno was wearing when she died.
Two days after the murder, L.P. turned himself in after learning he
was wanted for Moreno’s murder. He testified that when he talked to police,
he was concerned he would be labeled a snitch, suggesting this was why his
story kept changing. During the interview, he told police he was wearing the
same jeans and shoes he had been wearing on Thanksgiving. The jeans and
shoes were collected, and neither had blood on them.
Soon after the murder, Sanchez called his mother and told her he was
in Mexico with his father. Sanchez was eventually apprehended in Mexico,
and he was brought back to the United States in January 2017.
F. The Verdict and Sentencing
Sanchez was charged with one count of murder, with the accompanying
allegation that he personally used a knife during the offense.11 It was also
alleged that he had a 2014 conviction for street terrorism, a strike, and a
serious felony.12
The jury convicted Sanchez of first degree murder and found true the
knife allegation. After he waived a jury trial on the prior conviction
allegations, the trial court found them true but struck the strike in the
interest of justice, mostly based on Sanchez’s youth. The court sentenced him
11 The murder charge was under section 187, subdivision (a), and the
knife allegation was under section 12022, subdivision (b)(1).
12 The strike allegation was made under sections 667, subdivisions (d)
and (e), and 1170.12, subdivisions (b) and (c), and the serious felony
allegation was made under section 667(a)(1). The underlying conviction was
under section 186.22, subdivision (a).
13
to 31 years to life in prison, composed of a term of 25 years to life for the
murder and consecutive terms of one year for the knife use and five years for
the prior serious felony.
II.
DISCUSSION
A. Substantial Evidence Supports the Murder Conviction.
Sanchez claims that there was insufficient evidence of premeditation
and deliberation, requiring his conviction to be reduced to second degree
murder. We are not persuaded.
1. General legal standards
When evaluating a claim that a conviction lacks sufficient evidence,
“ ‘we review the whole record to determine whether . . . [there is] substantial
evidence to support the verdict . . . such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘[I]f the circumstances reasonably
justify the jury’s findings, the judgment may not be reversed simply because
the circumstances might also reasonably be reconciled with a contrary
finding.’ ” (People v. Avila (2009) 46 Cal.4th 680, 703.) Rather, reversal is
warranted only if “ ‘it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].” ’ ” (People v.
Cravens (2012) 53 Cal.4th 500, 508.)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) “All murder that is perpetrated by . . .
willful, deliberate and premeditated killing . . . is murder of the first degree.”
(§ 189, subd. (a).) “In the context of first degree murder, ‘ “premeditated”
14
means “considered beforehand,” and “deliberate” means “formed or arrived at
or determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ” (People v.
Lee (2011) 51 Cal.4th 620, 636.) The required mind state “is uniquely
subjective and personal. It requires more than a showing of intent to kill; the
killer must act deliberately, carefully weighing the considerations for and
against a choice to kill before . . . complet[ing] the acts that caused the
death.” (People v. Chiu (2014) 59 Cal.4th 155, 166.) “[T]he reflection
necessary to establish premeditation and deliberation is not measured by
duration of time: ‘Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly, but the express
requirement for a concurrence of deliberation and premeditation excludes
from murder of the first degree those homicides . . . which are the result of
mere unconsidered or rash impulse hastily executed.’ ” (People v. Wright
(1985) 39 Cal.3d 576, 593.)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme
Court “provided one framework for reviewing the sufficiency of the evidence
supporting findings of premeditation and deliberation.” (People v. Solomon
(2010) 49 Cal.4th 792, 812.) Anderson observed that the evidence typically
found sufficient to support such findings “ ‘falls into three basic categories:
(1) facts about how and what [the] defendant did prior to the actual killing
which show that the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be characterized as
“planning” activity; (2) facts about the defendant’s prior relationship and/or
conduct with the victim from which the jury could reasonably infer a “motive”
to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of “a
15
pre-existing reflection” and “careful thought and weighing of considerations”
rather than “mere unconsidered or rash impulse hastily executed” [citation];
[and] (3) facts about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that the defendant
must have intentionally killed according to a “preconceived design” to take
[the] victim’s life in a particular way for a “reason” which the jury can
reasonably infer from facts of type (1) or (2).’ ” (People v. Thomas (1992)
2 Cal.4th 489, 516–517.)
Anderson explained that a verdict of premeditated murder is generally
upheld “ ‘when there is evidence of all three types and otherwise requires at
least extremely strong evidence of [planning] or evidence of [motive] in
conjunction with [evidence of] either [planning] or [manner of killing].’ ”
(People v. Halvorsen (2007) 42 Cal.4th 379, 420.) The Supreme Court has
emphasized that “ ‘Anderson did not purport to establish an exhaustive list
that would exclude all other types and combinations of evidence that could
support a finding of premeditation and deliberation.’ ” (People v. Solomon,
supra, 49 Cal.4th at p. 812.) Rather, Anderson’s “guidelines are descriptive
. . . , and . . . reviewing courts need not accord them any particular weight.”
(Halvorsen, at p. 420.) Nonetheless, as do the parties, we use the Anderson
factors to frame our discussion.
2. Analysis
In claiming there was insufficient evidence of premeditation and
deliberation, Sanchez first focuses on planning activity. He asserts that
“there was no evidence that [he] arrived at the . . . house on Thanksgiving . . .
with any plan to harm [Moreno],” since not only did he did not bring a
weapon with him, several other people were there so he would have known
that a killing would be quickly detected.
16
We agree with the Attorney General, however, that L.P.’s testimony
about Sanchez’s activities in the living room and kitchen leading up to the
stabbing constitutes substantial evidence that Sanchez premeditated the
murder. (See People v. Avila, supra, 46 Cal.4th at p. 703 [generally, “ ‘the
testimony of a single witness is sufficient for the proof of any fact’ ”].) L.P.
testified that Sanchez came into the kitchen, grabbed a knife, sat back down
in the living room, and then returned to the kitchen and stabbed Moreno.
“That [Sanchez] armed himself prior to the attack ‘supports the inference
that he planned a violent encounter.’ ” (People v. Elliot (2005) 37 Cal.4th 453,
471.) The murder may not have been well-planned, as Sanchez committed it
in front of L.P. while other witnesses were nearby, but the lack of efforts to
avoid detection did not prevent the jury from inferring that Sanchez formed a
plan to kill Moreno before he attacked her.
In addition, although according to L.P.’s testimony only a short amount
of time passed between when Sanchez retrieved the knife and when he
stabbed Moreno, “under California law premeditation and deliberation can
occur in a brief period of time,” and “[t]he lack of evidence of extensive
planning does not negate a finding of premeditation.” (People v. Brady (2010)
50 Cal.4th 547, 563–564 [sufficient evidence of first degree murder where
defendant killed police officer within a few minutes of being pulled over].)
Sanchez argues that it is speculative to infer that he “actually premeditated
and deliberated” from the “mere fact that [he] had time to consider his
actions,” but more than the passage of time supported that inference. As
Sanchez acknowledges, L.P. testified that Sanchez and Moreno did not
interact before the stabbing, which was evidence that the murder was
unprovoked. The jury could have thus reasonably inferred that the murder
17
“was the result of a deliberate plan rather than a ‘rash explosion of
violence.’ ” (People v. Miranda (1987) 44 Cal.3d 57, 87.)
Sanchez argues that evidence of motive was also lacking. According to
him, “[t]here is nothing in the record concerning [his] prior relationship with
[Moreno] or his conduct with her that would suggest a motive for the
stabbing, other than speculation, conjecture, surmise, and suspicion.” In fact,
there was plenty of evidence that Moreno was pursuing a relationship with
Sanchez even though he was not interested in her and wanted to get back
together with his girlfriend. Moreno showed up at his home on Thanksgiving
and involved herself in his family’s get-together even though he had told her
not to come over anymore, and he was simultaneously fielding accusations
from his girlfriend about another woman. It is not speculative to conclude
this situation gave Sanchez a motive to kill Moreno, even if that motive was
irrational. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1238.)
Finally, Sanchez argues that there was insufficient evidence “from
which the jury could have inferred that the manner of killing . . . was so
particular and exacting that [he] must have intentionally killed according to
a preconceived design to kill.” He claims that “[t]he wounds appeared to be
wild and unaimed, consistent with a frenzied, impulsive attack,” which
“reflects a state of mind of someone going berserk and not one in which
premeditation should be inferred.” But as the Attorney General points out,
Sanchez “concentrated on the critical area from [Moreno’s] neck to her upper
chest,” and case law recognizes that numerous stab wounds placed where
they were likely to kill support a finding of premeditation. (E.g., People v.
Pride (1992) 3 Cal.4th 195, 247–248 [dozens of stab wounds concentrated on
victim’s chest and back]; People v. Nazeri (2010) 187 Cal.App.4th 1101, 1109,
1118 [victims had several stab wounds around head and neck]; People v.
18
Gonzalez (2005) 126 Cal.App.4th 1539, 1544, 1552 [victim had “multiple deep
puncture wounds, mostly to his chest and back”].) Although the manner of
killing here could also be “associated with someone losing his mind and going
berserk” (Nazeri, at p. 1118), it did not compel that conclusion.
In short, the evidence that Sanchez prepared to kill Moreno before he
started stabbing her, had a motive for wanting her dead, and focused his
attack on vulnerable areas of her body was sufficient for the jury to conclude
that he acted with premeditation and deliberation. Substantial evidence
supports the murder conviction.
B. The Gang Evidence Was Properly Admitted.
Sanchez claims the trial court erred by admitting gang evidence
because it was unduly prejudicial under Evidence Code section 352
(section 352). We conclude there was no error.
1. Additional facts
a. The trial court’s rulings
Before trial, Sanchez moved to exclude evidence that he was a Sureño.
Although he was not charged with any gang-related activity, the prosecution
contended that gang evidence was relevant to explain the actions of Victor
and L.P., primarily their motive to lie. Sanchez argued that the evidence
either feared gang retaliation was “minimal at best,” since Moreno was also a
Sureño associate and “[i]t is highly unlikely that the Sureños would do
anything to avenge or assist someone who killed her, especially while she was
making tamales for the killer on Thanksgiving day.”
The trial court determined that some gang evidence was relevant to
L.P.’s state of mind, as his fear of “being on paperwork” or considered “a
snitch” bore on “his credibility and his willingness to cooperate and to explain
19
his minimizing during his testimony.” 13 The court explained, “[I]n my world,
a normal person [who] witnesses a murder does not jump the fence and run
away, does not have to be subjected to a long interview at the police
department, does not refuse to come to court on a subpoena, does not get
arrested, does not go to jail, does not continue to fight cooperating. [¶] A jury
will be faced with thinking [L.P.] is a liar if there’s no other explanation for
his behavior. And that’s why I’m finding it highly probative.”
As for Victor, the trial court found the gang evidence was relevant even
if he did not fear retaliation because it demonstrated “[h]is loyalty to his
brother and his loyalty to the gang.” Indeed, soon before trial, Victor was
recorded throwing a gang sign toward Sanchez in the courtroom, and the
court ruled that the prosecution could present evidence about that
occurrence.
The trial court also ruled that a gang expert could testify that the
Sureños are a street gang and that the sign Victor threw was “a Sureño gang
sign,” as well as to what “snitching or being on paper[work]” means and
“what it means to be loyal to the gang.” But it excluded evidence that the
house was a Sureño hangout, as well as evidence of “any monikers” or
“predicate acts.”
In ruling, the trial court indicated it was prepared to give a limiting
instruction about the gang evidence. The jury was subsequently instructed
that “[g]ang evidence was admitted only for the purpose of assessing
credibil[it]y of the witnesses” and that this evidence could not be considered
for any other purpose.
13 As discussed below, “being on paperwork” refers to one’s participation
in a criminal investigation being documented.
20
The topic of gang evidence arose again during L.P.’s testimony, when
the attorney representing L.P. indicated that “there might be questions asked
that would elicit a Fifth Amendment response.” After L.P. was examined
outside the jury’s presence, the trial court ruled that he would be compelled
to answer questions about whether he knew about or was part of the VFL or
Sureño gang. The court also confirmed that he could be asked whether
Sanchez and Victor were VFL or Sureño members and that he could be
questioned about snitching and being on paperwork.
At this point, the trial court also elaborated on what gang-related
questions would not be permitted. The court repeated that L.P. could not be
asked about “[a]ny prior gang activities or specific instances of participation
[in] the Sureños or the VFL”—except for the fact he was with a Sureño when
he was arrested for an unrelated crime in January 2016—or about whether
the house was “a gang home.” The court ruled that L.P. could not be asked
what VFL stands for, “what it means to be a 13 or what 13 means,” or how he
knew Sanchez and Victor were in a gang. Finally, the court ruled that L.P.
could not be asked whether he believed the “Sureños would take revenge . . .
on somebody [who] killed a high-ranking member’s baby’s mama.”
b. The gang evidence
A detective testified that the Sureños are a criminal street gang with
various subsets, including the VFL in North Richmond.14 He explained that
gangs “have their own rules they follow. And one of the rules is to—they
pledge their allegiance to each other and their gang. And another rule, they
don’t tell on each other. They don’t testify. They don’t talk to cops.”
14The detective was not qualified as a gang expert, but Sanchez does
not claim that any of his testimony was objectionable on this basis.
21
L.P. denied that he was part of “the VFL Sureño street gang” at the
time of Moreno’s killing and testified he was “not sure” whether Sanchez or
Victor was. L.P. admitted that all three of them hung out with members of
that gang. In addition, a district attorney investigator testified that when
arrested for failing to appear at the preliminary hearing in May 2017, L.P.
said he and Sanchez were VFL members. Finally, L.P.’s preliminary-hearing
testimony that Sanchez was a Sureño was admitted into evidence.
Victor testified that he was a Sureño and VFL member. The detective
testified that court surveillance footage showed Victor throwing gang signs
toward Sanchez while they were in the courtroom. Specifically, the detective
saw Victor “throw up the [n]umber 13 with both hands,” which “signifies the
13th letter of the alphabet, which is the letter M. And the letter M
represents [the Sureños’] allegiance to the Mexican Mafia.”
There was also evidence about snitching and the term “paperwork.”
L.P. indicated, and the detective confirmed, that “being on paperwork” means
that “your statement is in a police report,” and being a snitch “means that
you [are] on paperwork and talked to the cops.” Victor and the detective
testified that Sureños are not supposed to snitch or testify, and L.P. testified
that being a snitch means “[y]ou could end up dead or just sent to the
hospital.” L.P. and the detective also agreed that a gang member who
snitches is supposed to drop out of the gang.
The record contains several statements by L.P. about “paperwork” and
his concern about talking to police. In his November 2015 police interview,
L.P. asked whether “[his] name [was] gonna be in paperwork” because he was
“scared about [that] too.” At trial, he confirmed he was “concerned about
being in paperwork” at that time, because he did not “want to be labeled a
snitch.”
22
L.P. also testified that a few weeks after that interview, he spoke to
Sanchez on the phone. Sanchez asked whether he was on “paperwork,” and
L.P. said he was not. In a January 2016 police interview, which occurred
after L.P. was arrested for the unrelated crime, he said that Victor told him
that if Sanchez “ever got caught, . . . the paperwork gonna come out.” And
according to the district attorney investigator who spoke to L.P. before the
preliminary hearing, L.P. said he was afraid to testify against Sanchez
because if he snitched, the gang would retaliate against him. At trial, L.P.
denied being directly threatened by Sanchez or anyone else, however.
2. General legal standards
Evidence is relevant if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.) The fact finder “may consider in determining
the credibility of a witness any matter that has any tendency in reason to
prove or disprove the truthfulness of [the witness’s] testimony,” including
“[t]he existence or nonexistence of a bias, interest, or other motive.” (Id.,
§ 780, subd. (f).)
Even if evidence is otherwise relevant and admissible, it may be
excluded under section 352 “if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (§ 352; People v. Scott (2011) 52 Cal.4th
452, 490.) “ ‘ “Prejudice,” as used in . . . section 352, is not synonymous with
“damaging.” [Citation.] Rather, it refers to evidence that uniquely tends to
evoke an emotional bias against the defendant as an individual, and has little
to do with the legal issues raised in the trial.’ ” (People v. Miles (2020)
9 Cal.5th 513, 587.)
23
“Because gang evidence creates a risk that the jury will infer that the
defendant has a criminal disposition and is therefore guilty of the charged
offense, ‘trial courts should carefully scrutinize such evidence before
admitting it.’ ” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167; see
People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Nevertheless, gang
evidence “is not insulated from the general rule that all relevant evidence is
admissible if it is relevant to a material issue in the case other than
character, is not more prejudicial than probative, and is not cumulative.”
(Samaniego, at p. 1167.) Gang evidence may be “relevant on the issue of a
witness’s credibility” in particular. (Id. at p. 1168.) For example,
“ ‘[e]vidence that a witness is afraid to testify or fears retaliation for
testifying,’ ” including “ ‘[a]n explanation of the basis for the witness’s fear,’ ”
is generally admissible. (People v. Sandoval (2015) 62 Cal.4th 394, 402, 429–
430 (Sandoval) [discussing witness’s fear of testifying against gang member];
People v. Pettie (2017) 16 Cal.App.5th 23, 44 [same].)
We review the trial court’s evidentiary rulings for an abuse of
discretion. (People v. Miles, supra, 9 Cal.5th at p. 587.) Under this standard,
reversal is not warranted “ ‘ “ ‘ “except on a showing that the [trial] court
exercised its discretion in an arbitrary, capricious[,] or patently absurd
manner that resulted in a manifest miscarriage of justice.” ’ ” ’ ” (Id. at
pp. 587–588, italics omitted.)
3. Analysis
As to L.P., Sanchez claims that although “[e]vidence that a witness is
fearful of retaliation is relevant to that witness’s credibility[,] . . . it is the
existence of the threat or fear, and not its source, that is relevant to [that
issue].” Sanchez argues that the gang evidence was thus cumulative and “of
minimal, if any, probative value” because there were several explanations
24
other than fear of gang retaliation for why L.P. told different stories. For
example, according to Sanchez, L.P. had a motive to lie to avoid prosecution
for the murder and, later, to mitigate the consequences of the charge for
which he was arrested in January 2016. Sanchez also claims that L.P. “was
worried about being labeled a snitch . . . because of the ethos of the
community to not cooperate with the police,” not because of “gang retaliation
or intimidation,” since neither Sanchez nor anyone acting for him ever
threatened L.P.
Contrary to Sanchez’s position, there was plenty of evidence that L.P.
was reluctant to tell the truth because he was worried about gang retaliation,
including L.P.’s statements to that effect. Based on this record, “paperwork”
is a concept used by gangs in particular, and the challenged evidence was
relevant to demonstrate what the term meant and why it was significant that
Sanchez and Victor mentioned it to L.P., as well as that L.P. himself was
concerned about it. Sanchez’s claim that if L.P. had feared retaliation, he
“would have recanted” and not “inculpated [Sanchez] more and more as time
went on” is speculative.
Sanchez also argues that the source of a witness’s fear is not relevant to
credibility. Sandoval, the case he cites for that proposition, made the point in
the context of explaining why threats against a witness were relevant even if
they came from people other than the defendant. (Sandoval, supra,
62 Cal.4th at pp. 428–430.) In other words, Sandoval was explaining why
threats were relevant despite their source, not suggesting that the source of
threats is never relevant. To the contrary, as Sandoval also makes clear,
“ ‘[a]n explanation of the basis for the witness’s fear [of testifying] is . . .
relevant to [the witness’s] credibility and is well within the discretion of the
trial court.’ ” (Id. at pp. 429–430.) Moreover, even if L.P. had not been
25
worried about retaliation, the evidence that he and Sanchez were in the same
gang was also relevant to furnish a reason that L.P. initially refused to admit
he had seen Sanchez kill Moreno. Thus, the gang evidence was undoubtedly
relevant to the issue of L.P.’s credibility.
Nor was this evidence cumulative just because L.P. may have had other
motives for not being truthful. The possibility of gang retaliation—which
might include death—furnished a powerful reason for L.P. to lie that went
beyond any desire not to be seen in “the community” as a snitch or any
general reluctance to talk to police. Moreover, the evidence that Sanchez and
Victor at least indirectly pressured L.P. not to talk was concrete evidence
that L.P. legitimately feared retaliation. That evidence lacked context
without testimony explaining “paperwork” and its significance to gangs.
As to Victor, Sanchez claims that “there was no basis to allow the
introduction of gang evidence” because their familial relationship was
sufficient to demonstrate Victor’s “bias or motivation or loyalty” toward
Sanchez. Thus, Sanchez claims, the fact that the two belonged to the same
gang was cumulative and “added little to further the prosecutor’s objective of
showing that Victor was biased and not a credible witness.” We might agree
if L.P. was not part of this case, and the primary point of the gang evidence
was to establish that Victor had a motive to lie. (See People v. Maestas (1993)
20 Cal.App.4th 1482, 1495 [that defendants were in same gang was
cumulative of other evidence establishing their close relationship].) But
given the evidence that Victor communicated with L.P. about “paperwork”
and flashed gang signs at Sanchez in the courtroom, the gang evidence
showed that Victor’s bias went beyond a mere willingness to lie to protect
Sanchez. Thus, it was relevant and not cumulative.
26
We also conclude that the trial court did not abuse its discretion by
concluding the gang evidence’s probative value was not substantially
outweighed by the potential for undue prejudice. We recognize that where, as
here, there are no gang charges, “evidence of gang membership . . . should not
be admitted if its probative value is minimal.” (People v. Hernandez, supra,33 Cal.4th at p. 1049.) But as discussed above, the gang evidence was very
relevant as it bore on credibility, particularly that of L.P., the only witness to
the murder. As Sanchez recognizes, L.P.’s testimony was key to the case, and
the gang evidence shed light on why L.P.’s story shifted.
Moreover, the gang evidence was reasonably limited, focusing on the
fact of membership and the impetus not to cooperate with law enforcement.
Thus, we cannot agree with Sanchez that the evidence would have led the
jury to believe that he “was a bad person who had been involved in violent
actions in the past, had not been punished for his past misdeeds, and needed
to be punished now.” To the contrary, there was no evidence of any of
Sanchez’s past misdeeds except the murder itself, and the gang evidence “did
not emphasize the general violent nature of gang activity or suggest that [his]
gang membership predisposed him to violent crimes, but instead focused
narrowly on the prosecution’s theory” for why witnesses were untruthful.
(People v. McKinnon (2011) 52 Cal.4th 610, 656.) Accordingly, the trial court
did not err by admitting the gang evidence.
C. Sanchez’s Trial Counsel Did Not Render Ineffective Assistance by
Failing to Seek Redactions of Interviews or a Limiting Instruction
Addressing Police Opinions About Veracity and Guilt.
Sanchez contends that his trial counsel rendered ineffective assistance
“[b]y failing to redact harmful portions of the police interviews” of Victor and
L.P. that were played for the jury. Sanchez claims that investigators made
statements indicating that L.P. was credible and they thought Sanchez killed
27
Moreno, which amounted to impermissible opinion testimony. Sanchez also
argues that his counsel was ineffective by failing, “in the alternative, [to]
request and obtain a limiting instruction” about the statements. He fails to
demonstrate either deficient performance or resulting prejudice, and we
therefore reject the claim.
1. Additional facts
Most of the statements Sanchez claims his trial counsel should have
sought to have redacted were made by police during the interviews of L.P. in
November 2015 and January 2016. In the first interview, investigators told
L.P. they “already [knew] the answer to” many questions they would ask and
repeatedly pressed him to be honest. A detective told L.P., “I wanna make it
very clear, . . . I’m not saying . . . [¶] . . . [¶] . . . we’re looking at you as the
person who did this. But you have some knowledge, a little bit more
knowledge, of what went down, downstairs.” Later, after telling L.P. he was
“tellin’ the truth” but “still skipping over pertinent facts about what
happened,” another detective stated, “Do I think you held [Moreno] down and
stabbed her? . . . No[,] okay? But you saw something. You were in that
kitchen.” This detective also repeatedly suggested that L.P. was in trouble
because “somebody else” put him there by killing Moreno in front of him.
Sanchez claims that portions of L.P.’s second police interview should
have also been redacted. One of the detectives opined that L.P. “[was]
probably about 95% honest with [his] last statement,” i.e., his previous
interview. The same detective also told L.P., “[C]ontinue to be honest.
‘Cause, if you remember, . . . when [we] . . . had, like, a three[-]hour
conversation last time, your story changed three times before [the] majority
of . . . [¶] . . . [¶] the truth came out. And I understand . . . [¶] . . . [¶] it’s hard
to talk about seeing somebody die, but if you didn’t have shit to do with it, it’s
28
easier to give up the guy that did than you goin’ down for a murder beef that
you had nothin’ to do with, right?” The detective continued, referring to
Sanchez, “[H]e’s not the sharpest tool in the shed when it comes to committin’
crimes. I mean, think about it, . . . he brutally . . . murdered a chick right in
front of you for a stupid fuckin’ reason. [¶] . . . [¶] . . . [R]egardless of how you
feel about the homies and . . . the life that you’re livin’ right now, this is
gonna go to court, regardless; and you’re gonna have to testify about what
happened in that kitchen[,] regardless. That’s to keep you from being a
suspect in a murder. Do you get that? He did this shit in front of you.” The
detective concluded by telling L.P., “I believe you didn’t have anything to do
with it. I believe you were there when it happened. I believe there was more
to it that you didn’t tell me, but you’re gonna have to testify. . . . You’re a
witness in a murder.”
Sanchez claims that statements a detective made during the interview
of Victor should also have been redacted. First, before reading Victor his
rights, the detective stated, “Now, I know that you’re not the one that stabbed
this chick; okay?” Second, after pressing Victor to identify any people who
were in the backyard, the detective explained that if he failed to do so “all we
have to look at is [Sanchez]. And your mama already said [Sanchez] was
there.” Third, insinuating that Sanchez might himself face gang retaliation
for the murder, the detective told Victor, “Look, this is the deal: You know
people are gonna be out there looking for your brother and it’s not us.”
Finally, Sanchez claims that at minimum, his trial counsel should have
requested a limiting instruction as to the challenged statements, but he does
not identify what such an instruction should have said. In his reply brief, he
points out that the jury was instructed under CALCRIM No. 303 that
“[h]earsay statements made at the scene indicating that [he] was a suspect
29
[were] admitted only for the purpose of explaining law enforcement’s
subsequent conduct.” Thus, we will assume the instruction he claims should
have been sought would have limited consideration of the statements at issue
for a similar purpose.
2. Analysis
Criminal defendants have the right to the effective assistance of
counsel under the Sixth Amendment of the United States Constitution and
article I, section 15 of the California Constitution. (Strickland v. Washington
(1984) 466 U.S. 668, 687; In re Long (2020) 10 Cal.5th 764, 773.) To prevail
on a claim of ineffective assistance of counsel, a defendant must show “that
counsel’s performance was deficient,” such that “counsel was not functioning
as the ‘counsel’ [constitutionally] guaranteed,” and “that the deficient
performance prejudiced the defense.” (Strickland, at p. 687; People v.
Centeno (2014) 60 Cal.4th 659, 674.) Thus, a defendant must demonstrate
both that (1) “counsel’s performance . . . fell below an objective standard of
reasonableness under prevailing professional norms” and (2) there was “a
reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v. Mai (2013)
57 Cal.4th 986, 1009 (Mai).)
“When examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a presumption
counsel acted within the wide range of reasonable professional assistance. It
is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
30
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (Mai, supra,
57 Cal.4th at p. 1009, italics omitted.)
As the parties agree, “generally a lay witness may not express an
opinion about the veracity of another person’s statement because the
statement’s veracity is for the jury to decide.” (People v. Houston (2012)
54 Cal.4th 1186, 1221; see Evid. Code, § 800.) Likewise, “ ‘ “[o]pinions on
guilt or innocence are inadmissible because they are of no assistance to the
trier of fact.” ’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 760 (Woodruff).)
But police opinions about a witness’s truthfulness may be admissible for
other limited reasons, such as to explain an investigation’s course. (See
People v. Dryden (2021) 60 Cal.App.5th 1007, 1026–1027.)
Even if we assume that Sanchez’s trial counsel could have successfully
sought to exclude the challenged statements, she may have had a rational
reason for failing to do so. The Attorney General suggests that counsel could
have chosen not to object because “[p]art and parcel of her defense that [L.P.]
killed [Moreno] was that the police targeted [Sanchez] because they had
already made up their minds he was guilty. Demonstrating that the police
pressured [L.P.] and only believed him when he said what they wanted to
hear was consistent with, and buttressed, that defense.” We agree this would
have been a valid tactical reason for not objecting to the challenged
statements. (See Woodruff, supra, 5 Cal.5th at p. 762 [attempting to show
investigation was inadequate because police believed defendant guilty is “a
reasonable defense strategy”].) Not only did the statements confirm that L.P.
was never seriously investigated, they supported the idea that he was lying,
because in changing his story he was telling the detectives only what they
wanted to hear. Sanchez responds that counsel could have effectively argued
31
that L.P. killed Moreno without the challenged statements, but mere
argument that police focused on Sanchez to the exclusion of L.P. would not
have carried the same weight as the detectives’ own words on the subject. In
sum, since the challenged statements arguably also supported Sanchez’s
defense, we cannot say that counsel’s failure to object to them or ask for a
limiting instruction fell below professional standards.
Finally, even if Sanchez’s trial counsel had rendered ineffective
assistance in this respect, the deficiency was harmless. As the Attorney
General asserts, “the thrust of the [challenged statements] is that the police
thought [Sanchez] was guilty of killing [Moreno]. . . . But that was hardly
news to the jury; after all, the police arrested [him] and he was on trial for
[her] murder.” Thus, even if the police opinions were inadmissible, they did
not convey any material information that the jury “would not have already
inferred” from the fact that Sanchez, and not L.P., was being tried for
Moreno’s murder. (People v. Riggs (2008) 44 Cal.4th 248, 300; Woodruff,
supra, 5 Cal.5th at p. 762.) Moreover, L.P.’s interviews, the primary focus of
Sanchez’s claim, were played after L.P. and several other witnesses had
already testified. Thus, the jury was not preconditioned to believe that L.P.
was truthful before being able to judge his credibility for itself. And finally,
the jury was instructed that it alone was responsible for deciding what had
happened and whether witnesses were credible, and “we see nothing in the
record that would lead us to conclude that the jury was likely to disregard
[those] instructions.” (Riggs, at p. 300.) In short, there is no reasonable
probability that counsel’s failure to seek redactions or a limiting instruction
affected the verdict.
In resisting this conclusion, Sanchez claims that “the only real question
for the jury to decide was whether [L.P.’s] testimony, that [Sanchez] stabbed
32
[Moreno], was credible.” Sanchez argues that since L.P. was “a less than
perfect witness” and “[h]is story . . . lacked substantial corroboration,” the
challenged statements may well have “skewed the jury’s verdict to
conviction.”
Although L.P.’s testimony was undoubtedly a crucial part of the case
against Sanchez, there was significant other evidence that Sanchez, and not
L.P., murdered Moreno. Sanchez’s blood was trailed through the house and
outside. He also left bloody clothes with an acquaintance on the night of the
murder. Sanchez suggests the blood evidence was not telling because he
lived at the house and Moreno’s DNA was not found on his clothing, but no
reasonable fact finder would conclude that Sanchez just happened to bleed all
over both himself and the scene for some reason unrelated to the murder. In
contrast, there was no physical evidence tying L.P. to the murder, and
although both men fled, L.P. quickly turned himself in while Sanchez evaded
capture for over a year. Finally, Sanchez had a motive for killing Moreno,
whereas there was little to no support for the defense’s theory that she had
spurned L.P. In short, the evidence that Sanchez committed the murder far
outweighed the evidence supporting his defense that L.P. did, and Sanchez
therefore fails to demonstrate that the police opinions were prejudicial based
on the supposed weakness of the case against him.
D. No Substantial Evidence Supported an Instruction on Accomplice
Testimony.
Sanchez next argues that the trial court erred by failing to give sua
sponte CALCRIM No. 334, which addresses accomplice testimony. We
conclude that no such instruction was required, because there was no
substantial evidence that L.P. acted as Sanchez’s accomplice.
Section 1111 defines an accomplice “as one who is liable to prosecution
for the identical offense charged against the defendant on trial in the cause in
33
which the testimony of the accomplice is given.” “ ‘To be chargeable with an
identical offense, a witness must be considered a principal under section 31.’
[Citations.] In other words, there must be evidence of that person’s ‘guilt . . .
based on a combination of the direct perpetrator’s acts and the aider and
abettor’s own acts and own mental state.’ ” (People v. Johnsen (2021)
10 Cal.5th 1116, 1155.)
To be considered by the jury, an accomplice’s testimony must “be
corroborated by such other evidence as shall tend to connect the defendant
with the commission of the offense; and the corroboration is not sufficient if it
merely shows the commission of the offense or the circumstances thereof.”
(§ 1111.) In addition, since “an accomplice has a natural incentive to
minimize his own guilt before the jury and to enlarge that of his cohorts[,] . . .
the law requires an accomplice’s testimony to be viewed with caution to the
extent it incriminates others.” (People v. Brown (2003) 31 Cal.4th 518, 555.)
CALCRIM No. 334 is the standard instruction incorporating those principles
to be given when it is disputed whether a witness is an accomplice. (See
People v. Smith (2017) 12 Cal.App.5th 766, 779; cf. CALCRIM No. 335.)
Even absent a request, a trial court has the duty to instruct on the
principles of accomplice testimony if there is “ ‘substantial evidence that a
witness who has implicated the defendant was an accomplice.’ ” (People v.
Johnsen, supra, 10 Cal.5th at p. 1155; People v. Tobias (2001) 25 Cal.4th 327,
331.) But “ ‘ “if the evidence is insufficient as a matter of law to support a
finding that a witness is an accomplice, the trial court may make that
determination and, in that situation, need not instruct the jury on accomplice
testimony.” ’ ” (Johnsen, at p. 1155.) We review de novo whether a required
instruction was omitted. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
34
Sanchez argues that there was substantial evidence that L.P. was an
accomplice, “either as an aider and abettor to the killing or the actual
perpetrator.” Sanchez points to the evidence that L.P. was initially a suspect,
including that investigators repeatedly told L.P. he was at risk of being
charged with murder and that he testified under a grant of immunity.15 But
“[t]he fact that a witness has been charged or held to answer for the same
crimes as the defendant and then has been granted immunity does not
necessarily establish that [the witness] is an accomplice.” (People v.
Stankewitz (1990) 51 Cal.3d 72, 90.) Likewise, “mere ‘presence at the scene
of a crime or failure to prevent its commission’ ” does not establish that the
witness acted as an accomplice. (People v. Richardson (2008) 43 Cal.4th 959,
1024; see People v. Lewis (2001) 26 Cal.4th 334, 369.)
Rather, in addition to requiring that an accomplice be subject to
prosecution for the same offense, “the law further requires a relationship
between the defendant and accomplice, either by virtue of a conspiracy or by
acts aiding and abetting the crime.” (People v. Ward (2005) 36 Cal.4th 186,
212.) But Sanchez does not explain how any of the evidence supports the
theory that he and L.P. committed the murder together. Sanchez points to
evidence suggesting that L.P. stabbed Moreno himself, including that L.P.
“knew where the knives were kept,” had a supposed motive to kill her, and
fled from the scene as well, but this evidence does not suggest that Sanchez
also participated in the murder. Sanchez mentions in passing that he and
15 Sanchez filed a request for judicial notice of the warrant for L.P.’s
arrest, which the Attorney General opposes. We deny the request. Not only
was the warrant not admitted below, it is unnecessary to our decision
because there is other evidence in the record showing L.P. was initially a
suspect. (See People v. Hardy (1992) 2 Cal.4th 86, 134; People v. Doane
(2021) 66 Cal.App.5th 965, 969, fn. 1.)
35
L.P. “[p]resumably . . . spoke” when they went outside to smoke together, but
that is hardly substantial evidence that they discussed killing Moreno
beforehand. Nor is there any evidence that L.P. helped Sanchez commit the
crime in any respect. In short, the record lacks substantial evidence that L.P.
was an accomplice, as opposed to being the only perpetrator. Therefore, the
trial court did not err by omitting an instruction on accomplice testimony.
E. Sanchez Forfeited His Claims of Prosecutorial Error, and His
Trial Counsel Did Not Render Ineffective Assistance by Failing to
Preserve Them.
Sanchez claims the prosecutor erred in two respects: by improperly
appealing to the jury’s emotion in closing argument and by vouching for L.P.
Relief is not available on either ground.
1. General legal standards
Prosecutorial “error occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) When a claim of
prosecutorial error “ ‘focuses upon comments made by the prosecutor before
the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey).)
“[T]o preserve a claim of prosecutorial misconduct for appeal, ‘ “ ‘a
criminal defendant must make a timely and specific objection and ask the
trial court to admonish the jury to disregard the impropriety.’ ” [Citation.]
The lack of a timely objection and request for admonition will be excused only
36
if either would have been futile or if an admonition would not have cured the
harm.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 942–943.) The requirement is
meant to “ ‘ “ ‘encourage a defendant to bring errors to the attention of the
trial court, so that they may be corrected or avoided and a fair trial had,’ ” ’ ”
and it is “ ‘ “ ‘unfair to the trial judge and to the adverse party to take
advantage of an error on appeal when it could easily have been corrected at
the trial.’ ” ’ ” (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081, quoting
People v. Saunders (1993) 5 Cal.4th 580, 590, italics omitted.)
“A defendant whose counsel did not object at trial to alleged
prosecutorial misconduct can argue on appeal that counsel’s inaction violated
the defendant’s constitutional right to the effective assistance of counsel.”
(People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) Generally, “in the heat
of a trial, defense counsel is best able to determine proper tactics in the light
of the jury’s apparent reaction to the proceedings. The choice of when to
object is inherently a matter of trial tactics not ordinarily reviewable on
appeal.” (People v. Frierson (1991) 53 Cal.3d 730, 749.) Rather, as we have
said, reversal on direct appeal for ineffective assistance of counsel is
warranted only if “(1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009.)
2. Appeal to sympathy
Sanchez challenges certain comments the prosecutor made toward the
beginning of her closing argument. Specifically, she told the jury she was
“confident that [it was] going to see how Guillermo Sanchez . . . is guilty of
first[]degree murder and how the vicious, violent last few moments of Isela
Moreno’s life were stolen from her. From her five-year-old[,] now seven-year-
37
old son. His life, his kisses[,] . . . [¶] . . . [¶] and his cuddles.” Sanchez’s trial
counsel stated, “Your Honor, I’m going to object to this,” and the trial court
directed the prosecutor to “move on to the next part of [her] argument.”
Generally speaking, “ ‘ “[a]n appeal for sympathy for the victim is out of
place during an objective determination of guilt.” ’ ” (People v. Seumanu
(2015) 61 Cal.4th 1293, 1342 (Seumanu); People v. Vance (2010)
188 Cal.App.4th 1182, 1192–1193.) Likewise, except in the penalty phase of
a capital trial, a prosecutor may not “argue that the jury . . . should consider
the impact of the crime on the victim’s family.” (Vance, at p. 1193.) “The
justification for both of these exclusionary policies is that they deal with
subjects that are inherently emotional, possessing an unusually potent power
to sway juries, and . . . their use must therefore be rigidly confined and
controlled.” (Ibid.)
The Attorney General argues that Sanchez forfeited this claim.
Although Sanchez’s trial counsel objected, she did not ask the trial court to
admonish the jury to disregard the prosecutor’s comments. (See People v.
Hoyt, supra, 8 Cal.5th at p. 942.) And Sanchez does not argue that any
exception to forfeiture applies. (See id. at pp. 942–943.) Thus, we agree with
the Attorney General that the claim was forfeited.
Sanchez argues that he is nevertheless entitled to relief because his
counsel rendered ineffective assistance by failing to preserve the issue. We
are not persuaded.
First, we agree with the Attorney General that Sanchez’s counsel could
have had a legitimate reason for failing to seek an admonition. (See Mai,
supra, 57 Cal.4th at p. 1009.) The trial court had already directed the
prosecutor to move on, and counsel could have determined that further
discussion would unhelpfully keep the jury’s focus on the issue. (See People
38
v. Harris (2008) 43 Cal.4th 1269, 1290.) Sanchez does not attempt to refute
this point or otherwise demonstrate that counsel could have had no rational
reason for not pursuing the objection further.
Second, even if any of the prosecutor’s comments were erroneous and
Sanchez’s counsel should have asked for an admonition, there is no
reasonable probability that the omission affected the verdict. The challenged
comments were a small portion of the closing argument, and the prosecutor
did not mention Moreno’s son again or overly emphasize the murder’s
brutality, a topic that was inescapable given the evidence. (See Seumanu,
supra, 61 Cal.4th at p. 1344 [prosecutor’s brief remarks “could not have
prejudiced [the] defendant”].) Moreover, the jury was instructed not to let
“bias, sympathy, prejudice, or public opinion influence [its] decision,” an
instruction we presume it understood and followed. (See People v. Ramirez
(2021) 10 Cal.5th 983, 1017–1018.) In particular, we disagree with Sanchez
that this instruction “would have had no mollifying or curative force because
there was a substantial likelihood that the jurors would not have treated the
prosecutor’s argument as improper.” If anything, the trial court’s response to
Sanchez’s counsel’s objection would have conveyed to the jury that the
prosecutor’s comments were inappropriate. Counsel’s decision not to pursue
the objection further was harmless.
3. Vouching
Sanchez also argues that “the prosecutor improperly attempted to boost
[L.P.’s] credibility before the jury in several deceitful and dishonest ways.”
He focuses on the prosecutor’s examination of L.P. about L.P.’s testimony at
the preliminary hearing and her closing argument addressing L.P.’s
immunity agreement. We reject this claim.
39
a. Additional facts
L.P. testified at the spring 2017 preliminary hearing only after he
initially failed to appear and was arrested. On cross-examination at trial,
L.P. acknowledged that he testified under a grant of immunity at the
preliminary hearing. He also admitted that he had a 2017 conviction of
domestic violence. On redirect, the prosecutor questioned L.P. about these
topics as follows:
“Q. When you testified under the grant of immunity at the
preliminary hearing, is it fair to say that the domestic
violence misdemeanor conviction that you recently suffered
was still a pending case?
“A. Wait, what?
“Q. Like, you hadn’t resolved it. You hadn’t pled to it.
“A. I actually did.
“Q. But not until after you testified at the preliminary hearing;
is that fair to say?
“A. No.
“Q. So let me ask you this. When you came and you were in jail
when you testified at the preliminary hearing for not
coming to court—
“Do you remember that?
“A. Yeah.
“Q. Did you have to then go to Alameda County in custody and
go to their jail?
“A. Yeah. Because you guys made me miss a court date.
40
“Q. And then . . . you had to resolve that case and take care of
it, right?
“A. No. That case is already [taken] care of. It was a court
date . . . to see if I was taking my classes.
“Q. But . . . you had to answer questions about that case—
“A. No, I didn’t.
“Q. —when you testified at the preliminary hearing?
“A. Yes.
“Q. And so part of you testifying would have been answering
questions that you had a Fifth Amendment . . . privilege . . .
about that case; is that fair to say?”
The defense objected, and after a bench conference, the
prosecutor continued:
“Q. Is it fair to say that the immunity agreement that . . . you
were testifying under didn’t protect you from perjuring
yourself on the witness stand?
“A. I guess.
“Q. Lying on the witness stand. We could still file charges
against you for that.
“A. Yeah.”
The May 2017 immunity agreement, which was admitted into evidence
and published to the jury, provided in relevant part, “After the witness
testifies, if the court determines that the witness would have been privileged
to withhold that information, but for the provisions of Penal Code
41
section 1324, the witness will be granted use immunity. [16] Therefore, none of
the statements obtained from the testimony of the witness, nor information
derived from the testimony in this case may be used in any criminal
prosecution against the witness. This is not transactional immunity. The
witness may still be prosecuted for any crimes committed, including perjury
or contempt for failing to answer questions while testifying in this case.”
In closing, the prosecutor addressed L.P.’s grant of immunity while
arguing that Sanchez did not kill Moreno in the heat of passion. The
prosecutor urged the jury to conclude that L.P. was lying to police when he
originally said Sanchez and Moreno were fighting before the killing, evidence
that might support a verdict of voluntary manslaughter. The prosecutor told
the jurors that L.P. “never told the police he saw a stabbing,” even though
“you knew that he saw it” because he was “bawling” during the interview.
The prosecutor continued, “And [L.P.] told you what he saw with his eyes.
And he testified at the preliminary hearing about what he saw, under a grant
of immunity, where that evidence couldn’t be used against him. That would
have been the time for him to say, I did it. When I couldn’t have prosecuted
him for what he said. [¶] No, that’s when he came and told the truth. That’s
when he said he saw the stabbing. And that testimony at the preliminary
hearing is consistent with what he told you here, when he said he was silent
before that stabbing.”
16 “ ‘Use immunity protects a witness only against the actual use of [the
witness’s] compelled testimony, as well as the use of evidence derived
therefrom. Transactional immunity protects the witness against all later
prosecutions relating to matters about which [the witness] testifies.’ ” (People
v. Vines (2011) 51 Cal.4th 830, 882, fn. 24.)
42
b. Analysis
Generally, “ ‘[i]mpermissible “vouching” may occur where the
prosecutor places the prestige of the government behind a witness through
personal assurances of the witness’s veracity or suggests that information not
presented to the jury supports the witness’s testimony.’ ” (Seumanu, supra,
61 Cal.4th at p. 1329.) Improper vouching may occur during either a
prosecutor’s questioning or argument. (See id. at p. 1330.) “The vice of such
remarks is that they ‘may be understood by jurors to permit them to avoid
independently assessing witness credibility and to rely on the government’s
view of the evidence.’ [Citation.] However, these limits do not preclude all
comment regarding a witness’s credibility. ‘ “ ‘[A] prosecutor is given wide
latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable
inferences, or deductions to be drawn therefrom.’ ” ’ ” (People v. Bonilla
(2007) 41 Cal.4th 313, 336–337.)
First, Sanchez claims that the prosecutor improperly tried to create the
impression that L.P. was credible because L.P. “was so forthcoming at the
preliminary examination [that] he answered questions related to a subject
matter that he did not have to, as he had a Fifth Amendment privilege [not
to] answer questions concerning his misdemeanor spousal battery case from
Alameda County.” According to Sanchez, L.P. entered a plea to the charge
and was sentenced on January 7, 2017, five months before the preliminary
hearing.17 Thus, Sanchez reasons, L.P. actually “did not have any valid
17Sanchez asks us to take judicial notice of a portion of L.P.’s criminal
record that reflects L.P.’s plea and sentence for the misdemeanor, a request
the Attorney General opposes. We deny the request because this document
also was not presented to the trial court and is not necessary to our decision.
43
privilege against self-incrimination . . . that he could assert at the time he
testified at the preliminary examination” unless an appeal of his conviction
was pending. (See People v. Fonseca (1995) 36 Cal.App.4th 631, 635
[privilege retained at least until sentencing and pending resolution of
appeal]; see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [privilege
disappears if conviction not appealed].)
Assuming, without deciding, that L.P. did not have a Fifth Amendment
privilege related to the misdemeanor case at the time of the preliminary
hearing, we conclude that Sanchez forfeited this aspect of his claim. His trial
counsel objected to the prosecutor’s question about this topic, apparently with
success, as the prosecutor did not return to it after the unreported bench
conference. Indeed, L.P. never actually answered the question. Sanchez does
not contend that the mere asking of the question created incurable harm, and
counsel never asked that the jury be admonished. Accordingly, Sanchez
cannot complain that the trial court’s halting of the question was insufficient.
In turn, Sanchez fails to demonstrate that his trial counsel rendered
ineffective assistance by failing to request an admonition or, at least, to
request that the objection be sustained on the record. Having successfully
prevented the prosecutor from obtaining an answer to the question, counsel
could have “decided it would be unhelpful to have the jurors admonished” or
further pursue the objection, “since doing so could have emphasized the
issue.” (People v. Pettie, supra, 16 Cal.App.5th at p. 81.) Sanchez’s cursory
assertion that competent counsel would not have wanted the jury to “hear
improper argument and questioning from the prosecutor” bolstering L.P.’s
credibility does not persuade us otherwise.
(See People v. Hardy, supra, 2 Cal.4th at p. 134; People v. Doane, supra,
66 Cal.App.5th at p. 969, fn. 1.)
44
Second, relying on People v. Rodriguez (2020) 9 Cal.5th 474, Sanchez
claims the prosecutor erred by asking questions related to L.P.’s immunity
agreement to establish L.P. could be charged with perjury if he lied during
his testimony. In Rodriguez, the Supreme Court held that the prosecutor’s
argument that two law enforcement witnesses “would not lie because each
would not put his ‘entire career on the line’ or ‘at risk’ constitute[d]
impermissible vouching,” since there was no evidence that giving false
testimony would expose the officers to being fired. (Id. at p. 481.) The court
declined to determine whether another of the prosecutor’s arguments, that
the witnesses would not expose themselves to “ ‘possible prosecution for
perjury,’ ” likewise amounted to improper vouching. (Id. at pp. 479, 483.) In
doing so, however, the court observed: “That a perjury prosecution for false
testimony was ‘possible’ may have been a fact within the common knowledge
of jurors; however, . . . a lay juror would naturally think that a prosecutor
would know more about when someone can be prosecuted for perjury than a
juror. For this reason, prosecutors are well advised to generally avoid raising
the subject of future perjury prosecutions in their closing arguments.” (Id. at
p. 483.)
Sanchez’s trial counsel did not object to the prosecutor’s comments
about the possibility that L.P. could be prosecuted for perjury, and the
argument is therefore forfeited. Nor did counsel’s omission constitute
ineffective assistance of counsel. Unlike the comments about prosecution for
perjury in Rodriguez—which the Supreme Court merely suggested were
inadvisable—the prosecutor’s statements indicating that L.P. could be
prosecuted for perjury despite the immunity agreement were clearly based on
information in the record, namely the agreement’s own statement to that
effect. Sanchez does not claim that the agreement was improperly admitted,
45
and counsel could have reasonably decided not to object to questioning that
referred to something already in evidence.
Third, Sanchez claims that the prosecutor falsely argued to the jury
“that all [L.P.] had to do was to admit that he had killed [Moreno] and . . . he
could not be prosecuted for the admission.” Sanchez contends that the
prosecutor’s “argument misrepresent[ed] ‘use’ immunity,” which “does not
immunize a witness from a prosecution that is . . . separate and apart and not
derived from the witness’s testimony.” Once again, this claim is forfeited,
because the defense did not object below to the prosecutor’s argument or
request an admonition, and Sanchez does not claim that an exception to
forfeiture applies.
Nor did the failure to object to the prosecutor’s argument constitute
ineffective assistance of counsel. Although Sanchez correctly describes use
immunity (see People v. Vines, supra, 51 Cal.4th at p. 882, fn. 24), the
challenged argument was technically consistent with the principle that a
witness may still face prosecution so long as the prosecution is not based on
the immunized testimony. The prosecutor argued that if L.P. had testified at
the preliminary hearing that he stabbed Moreno, “that evidence”—his
testimony—“couldn’t be used against him,” and “[she] couldn’t have
prosecuted him for what he said.” (Italics added.)
We acknowledge that a lay juror might have nonetheless inaccurately
concluded “that all [L.P.] had to do was testify that he had stabbed [Moreno],
and he would/could never be charged with her killing or subsequently
prosecuted.” But even if the challenged argument was misleading, it was not
so clearly improper that Sanchez’s trial counsel could have had no rational
reason for failing to object to it. In any event, as the case law recognizes,
defense counsel may validly decide not to object even if the objection has
46
merit. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206 [rational not to
object to avoid calling attention to prosecutor’s remarks]; People v. Frierson,
supra, 53 Cal.3d at p. 749 [rational to counter prosecutor’s point with
argument instead of objecting].)
Finally, even if reasonably competent counsel should have more fully
objected to the statements of which Sanchez complains, we conclude that the
failure to do so was harmless because there is no reasonable probability that
the verdict was thereby affected. As we have said, L.P.’s testimony was
crucial evidence against Sanchez, but we agree with the Attorney General
that “the jury had ample opportunity to ‘judge [L.P.’s] credibility
independently of the prosecutor’s argument.’ ” (Quoting People v. Johnson
(1992) 3 Cal.4th 1183, 1225 [concluding alleged vouching was harmless].) In
addition to hearing L.P.’s live testimony, the jurors viewed the recordings of
his interviews with police, and they could evaluate his changing story for
themselves. Moreover, the jury was instructed under CALCRIM No. 222 that
the attorneys’ questions and arguments were not evidence and under
CALCRIM No. 226 that it alone was responsible for judging the credibility of
witnesses, instructions we presume it followed. (See People v. Ramirez,
supra, 10 Cal.5th at pp. 1017–1018.) In short, any improper vouching, and
thus counsel’s failure to object fully to it, was harmless.
F. No Cumulative Error Appears.
Sanchez also claims that even if the errors he has identified are not
prejudicial individually, they cumulatively denied him due process and a fair
trial. The trial court did not err by admitting gang evidence or failing to
instruct on accomplice testimony, however, and Sanchez has not shown that
his trial counsel rendered ineffective assistance in any respect relating to the
47
police opinions or alleged prosecutorial errors. Thus, his claim of cumulative
error fails.
G. Remand Is Required for the Trial Court to Consider Whether to
Strike the Section 667(a) Enhancement.
Finally, Sanchez claims that pursuant to Senate Bill No. 1393, remand
is required for the trial court to exercise its discretion whether to strike the
five-year term for the prior serious felony under section 667(a). The Attorney
General concedes, and we agree, that remand is required.
When Sanchez was sentenced in 2018, trial courts had no discretion to
strike an enhancement for a prior serious felony under section 667(a).
Effective January 1, 2019, however, Senate Bill No. 1393 amended the law to
enable courts to strike such an enhancement in the interest of justice under
section 1385. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The
legislation is retroactive and applies to all judgments that, like Sanchez’s, are
not yet final. (Id. at pp. 971–972.)
In such circumstances, remand is required unless it would be futile
because “ ‘ “the record shows that the trial court would not have exercised its
discretion even if it believed it could do so.” ’ ” (People v. McDaniels (2018)
22 Cal.App.5th 420, 425; People v. Garcia, supra, 28 Cal.App.5th at p. 973,
fn. 3.) As the parties agree, the record does not demonstrate that remand
would be futile. To the contrary, the trial court expressed concern about the
length of Sanchez’s sentence in light of his youth, and it struck the prior
strike in the interest of justice. Accordingly, remand is required for the court
to exercise its discretion whether to strike the section 667(a) enhancement.
48
III.
DISPOSITION
The matter is remanded for the trial court to exercise its discretion
whether to strike the enhancement under Penal Code section 667,
subdivision (a). In all other respects, the judgment is affirmed.
49
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
People v. Sanchez A157538
50