People v. Sierra CA2/8 ( 2023 )

Filed 6/15/23 P. v. Sierra CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B316427
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA466498)
v.
LARRY SIERRA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Mark S. Arnold, Judge. Affirmed.
Patricia A. Scott, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
Larry Sierra appeals from his judgment of conviction of one
count of first degree murder of Claudia Garcia (Pen. Code,1 § 187,
subd. (a)) and discharging a firearm in the commission of the
murder (§ 12022.53, subds. (b)–(d)). On appeal, Sierra contends
the prosecutor committed prejudicial misconduct by making a
correction to the transcript of a recorded jailhouse conversation
between Sierra’s codefendant and an undercover agent just
before the transcript and audio recording were presented to the
jury. Sierra also claims that the prosecutor committed
prejudicial misconduct during closing argument when he
commented that counsel for Sierra’s codefendant recognized that
the evidence against Sierra was overwhelming. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prosecution Evidence
A. Sierra and Garcia’s Relationship and Sierra’s
Prior Threats Against Garcia
Garcia’s family and friends testified for the prosecution
regarding Sierra’s abusive relationship with Garcia. Garcia’s
mother, Maria Garcia,2 described the relationship of Garcia and
Sierra as “very bad.” On one occasion, Maria found Garcia hiding
in a mechanic shop after Sierra had hurt Garcia and was
following her on the street. On another occasion, she saw
Garcia’s eyes were “very bruised.” On December 24, 2017, Sierra
1 All further statutory references are to the Penal Code.
2 For the sake of clarity and to avoid confusion with Garcia,
we refer to Garcia’s mother by her first name, intending no
disrespect.
2
went to Maria’s house and threatened Garcia, yelling at her from
the street.
Likewise, Garcia’s daughter described the relationship of
Garcia and Sierra as “very toxic” and “abusive.” She witnessed
Sierra physically abuse and threaten Garcia multiple times. This
included one occasion in 2017 when Sierra uppercut Garcia with
a closed fist, leaving a scar on her chin. In 2014, Sierra
threatened Garcia and pointed a handgun at her body through a
metal screen door while her daughter was standing beside her.
Garcia and Sierra had a child together, Larry S. While
Garcia was pregnant with Larry S., Sierra threatened her,
pointing a knife at her stomach because he did not believe
Larry S. was his child. After Larry S. was born, Sierra’s mother
and Maria shared joint custody of the child. However, because
Sierra repeatedly threatened Garcia and Maria, telling them to
stay away from Larry S., Maria allowed Larry S. to live with
Sierra and his mother on 85th Street near Broadway in Los
Angeles. Maria testified there were always problems when
Garcia would try to visit Larry S., and that Sierra would refuse to
open the door whenever Garcia tried to visit Larry S. About two
or three weeks before Garcia’s murder, she asked Maria to
accompany her to visit Larry S. because Sierra had threatened to
kill her if she did so. When they arrived at Sierra’s mother’s
house, Sierra came outside and threatened Garcia, calling her a
“bitch,” and saying that she was “gonna get it.”
Chantel Keuleman was Garcia’s roommate. Sierra would
sometimes communicate with Garcia by texting Keuleman’s cell
phone. A couple months before Garcia’s murder, Sierra sent
messages to Keuleman threatening to kill Garcia because he
believed that Garcia was dating another man. In one text
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message, Sierra wrote, “ ‘You tell Claudia to stay with her
other’—N-word—‘ese. When I . . . see her in L.A., it’s on, ese.’ ”
Keuleman characterized this text message as Sierra being
“respectful,” and that he generally used language that was much
worse. On the day of the murder, Garcia told Keuleman that she
was going to visit Larry S. near 84th Street and Broadway at
Sierra’s and his mother’s residence.
Jennifer Batson was Garcia’s friend. In the weeks leading
up to her murder, Batson saw that Garcia was receiving
threatening texts from Sierra and that she looked like she had
been beaten because her legs, stomach, and side were bruised.
On the day of the murder, Batson and Garcia were attending
court together in downtown Los Angeles. Batson testified that
Garcia received a threatening text message from Sierra that day
and that she was very concerned for Garcia because of Sierra’s
behavior.
B. Law Enforcement Investigation
Garcia was found shot to death at a bus stop near 83rd
Street and Broadway, approximately one block from Sierra’s
residence. Detective Iris Romero recovered a cell phone, a bus
token, and a monthly planner near Garcia’s body. No cartridge
casings were found at the scene, suggesting that the casings had
been moved or the murder weapon was a revolver, which does not
expel the casings upon being fired.
Detective Romero obtained surveillance camera footage
from a nearby liquor store and a medical marijuana dispensary.
In the surveillance footage, Garcia can be seen walking away
from the area of Sierra’s home at 8:16 p.m. and stopping at the
bus stop. Several minutes later, a van with distinctive logos
drives past the bus stop where Garcia is waiting and parks at the
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corner of 83rd Street and Broadway. Then, a heavyset man gets
out of the van, approaches Garcia, and shoots her in the back.
The shooter then runs back to the parked van, which drives off.
Investigators identified the logos on the van and
determined the van was connected to a car audio business in
Hawthorne. The business owner testified that he had hired both
Sierra and Sierra’s cousin and codefendant, Benito Venegas, and
that he allowed Venegas to use the company’s van on the
weekends so that Venegas could drive it to promote the business.
In examining the cell site activity for Venegas’s cell phone
on the day of the murder, the data showed that Venegas called
Sierra’s home at 6:47 p.m. Then, Venegas called Sierra again at
8:24 p.m. and 8:27 p.m. from a cell site near the crime scene and
Sierra’s residence. From 8:40 p.m. to 8:42 p.m., Venegas’s cell
phone activity moved away from the crime scene, and towards
Venegas’s residence.
Sierra and Venegas were arrested three days after the
murder and the van was impounded.
C. Perkins Operation
In a Perkins operation, Detective Jason Archie placed an
undercover agent in a holding cell with Venegas and recorded
their conversation. (Illinois v. Perkins (1990) 496 U.S. 292(Perkins).) After Venegas and the agent spoke for several
minutes, Detective Archie told Venegas that he wanted to talk
about Garcia’s murder. At some point during Venegas’s
conversation with the agent, Detective Archie walked Sierra and
Sierra’s younger brother past Venegas’s cell, so that Venegas and
the agent could see them. Venegas told the agent that Sierra was
his cousin.
5
During their recorded conversation, Venegas admitted to
the undercover agent that he picked up Sierra on the day of the
murder, and Sierra directed him where to go. According to
Venegas, Sierra “got out the car, he ran over there, I just heard
ba—ba—ba—ba. He came running back to the car and we took
off.” Venegas told the agent that he did not know what Sierra
was going to do. When the agent suggested that Sierra might be
cooperating with law enforcement, Venegas said that if Sierra did
so, Sierra would be “green[lit],” i.e., killed for cooperating with
police. After the agent suggested to Venegas that law
enforcement may have surveillance footage of the murder,
Venegas admitted, “[t]here’s a smoke shop right there,” and
“I fucked up because I busted a bitch, [unintelligible] you know.”
Venegas told the agent that he should have “burned” the van
after the murder because of its distinct logos tying the van to his
employer. When the agent suggested that investigators were
going to search the van for bullets, Venegas said that they would
not find anything, but that he “fucked up” because the bullet
casings were hidden in a deodorant stick at his house. When the
agent asked how Venegas had time to find and collect the bullet
casings, Venegas said that the murder weapon was a .357
revolver.3 Venegas said he also hid the sweater Sierra was
wearing on the night of the murder in a pile of his sister’s clothes,
but that his sister was unlikely to cooperate with law
enforcement.
Venegas and the agent also discussed the potential
sentences for murder. The agent informed Venegas that
3 Detective Archie later searched Venegas’s home and found
three spent .357 casings hidden in a stick of deodorant.
6
“an accomplice is still just as fucked as the main one that shoots
the fucking strap.” Venegas responded, “That’s gonna be life,
huh?” When the agent told Venegas that the shooter would do
life, Venegas asked, “I’m looking at 15, for the driver?” Before the
agent was taken from the holding cell, he told Venegas, “You
shoulda just never answered your cousin’s call that night. You
know, you should have told him, I’m busy. I’m working or
something.”
II. Defense Evidence
Sierra introduced fingerprint processing cards and
fingerprint lift tapes that were collected and analyzed in relation
to the investigation of Garcia’s murder.
III. Jury Verdict and Sentencing
The jury found Sierra guilty of first degree murder, and
found the firearm allegation true. The same jury found Venegas
not guilty of murder but found him guilty of being an accessory
after the fact. Sierra waived jury trial on a prior conviction
allegation, and the court found it true. Sierra was sentenced to
80 years to life. Sierra appealed.
DISCUSSION
I. Sierra Cannot Establish That He Was Prejudiced by
the Prosecutor’s Revision of the Perkins Audio
Transcript
Sierra first argues that the prosecutor committed
misconduct by altering the transcript of the Perkins operation
just before it was presented to the jury without first informing
counsel, and then referencing the altered portion of the transcript
in his closing argument. Sierra asserts that the trial court
should have granted his motion to dismiss based on the
prosecutor’s alterations to the transcript.
7
A. Additional Background
The prosecution first produced the audio of the Perkins
operation along with a rough transcript of the recording in
approximately July 2018. Thereafter, Sierra introduced the
audio recording as an exhibit at his preliminary hearing.
Before trial, Sierra moved to exclude the recording on the
grounds that it was inadmissible hearsay. The trial court denied
the motion, but the parties agreed to exclude certain portions of
the audio that referred to gang membership. On the morning the
audio was to be played to the jury, the prosecutor removed those
agreed upon portions of the transcript, and sent an updated copy
of the transcript to defense. The prosecutor noted in his email
that he was going to listen to the audio one more time to make
sure everything was right. When trial resumed, the prosecutor
gave defense counsel another updated copy of the transcript,
noting that he had made changes to parts of the transcript that
had been previously marked unintelligible, and asked defense
counsel to review it. Copies of the transcript were also
distributed to the jury, and the audio recording was played. The
accompanying transcript included the sentence, “You shoulda
just never answered your cousin’s call that night. You know, you
should have told him, I’m busy. I’m working or something.” In
the previously produced rough transcript, that particular
statement had been marked as unintelligible. Sierra’s counsel
did not object to the statement when it was played to the jury.
Two days later, the prosecutor referred to the sentence in
his closing argument: “What else do we know? The informant
says, ‘You should have just never answered your cousin’s call that
night.’ Well, in reality we know it was Venegas who called
Sierra. And Venegas says, ‘I was tripping out in the room. I was
8
like fuck what the fuck happened, bro.’ So, again, this is an
adoptive admission that the person he was with that night was
who? His cousin.” Again, Sierra did not object to the statement
during the prosecutor’s closing argument.
After the case was submitted to the jury, Sierra moved to
dismiss the case based on the prosecutor’s inclusion of this
statement in the transcript and the prosecutor’s closing
argument. The jury deliberated for approximately one hour
before reaching a verdict. The trial court held a hearing on the
motion after the jury indicated that it had reached a verdict.
Sierra argued that the prosecutor should have notified defense
counsel of the revisions so that their admissibility could have
been litigated. The prosecutor explained that he had informed
defense counsel that he revised parts of the transcript that were
previously marked unintelligible, and that he told defense
counsel to review the changes. Moreover, the prosecutor noted
that Sierra’s counsel did not object to the statement when the
recording was played to the jury, and that the audio recording,
which was the actual evidence, had been available to the defense
for over three years. Defense counsel admitted that he “half
listened” when the audio was played for the jury, and that the
first time he noticed the added language was when the prosecutor
referenced it during his closing argument.
The trial court listened to the disputed portion of the audio
recording and found that the challenged portion could be heard
“clear as a bell” and that the prosecutor’s revision was accurate,
finding that “it’s very plain that’s exactly what was said.” The
trial court further found that, even had the challenged language
been litigated, it would have been admitted as an adoptive
admission similar to other portions of the recording that had been
9
litigated and deemed admissible. Accordingly, the trial court
denied the motion to dismiss.
B. Governing Law
The federal and state standards to assess prosecutorial
misconduct are “ ‘well established.’ ” (People v. Hill (1998)
17 Cal.4th 800, 819.) A prosecutor commits misconduct when his
or her behavior comprises a pattern of conduct “ ‘ “so egregious
that it infects the trial with such unfairness as to make the
conviction a denial of due process.” ’ ” (Ibid.) Under state law,
a prosecutor commits misconduct when it involves “ ‘ “ ‘the use of
deceptive or reprehensible methods to attempt to persuade either
the court or the jury.’ ” ’ ” (Ibid.) A defendant’s conviction will
not be reversed for prosecutorial misconduct “unless it is
reasonably probable that a result more favorable to the defendant
would have been reached without the misconduct.” (People v.
Crew (2003) 31 Cal.4th 822, 839.)
We review a trial court’s denial of a motion to dismiss
criminal charges for abuse of discretion. (People v. Velasco-
Palacios (2015) 235 Cal.App.4th 439, 445 (Velasco-Palacios).)
C. Analysis
Even if we assume that the prosecutor’s revisions to the
transcript were inappropriate, Sierra cannot show that, had the
prosecutor specifically informed him of the corrected transcript,
the trial court would have excluded the statement, or that he
would have obtained a more favorable outcome at trial. First,
Sierra does not contend that the prosecutor’s revisions to the
audio transcript were inaccurate or fabricated. Indeed, when the
trial court listened to the disputed portion of the audio recording,
it found that the revised transcript was accurate and that the
specific lines complained of by Sierra could be heard “clear as a
10
bell.” “Transcripts of admissible tape recordings are only
prejudicial if it is shown they are so inaccurate that the jury
might be misled into convicting an innocent man.” (People v.
Brown (1990) 225 Cal.App.3d 585, 599.) Moreover, Sierra cannot
show that the statement would have been excluded. The trial
court rejected Sierra’s argument that the statement was
inadmissible hearsay, finding that Venegas’s response was an
adoptive admission.
Further, Sierra cannot establish prejudice because the
remainder of the audio recording, which was deemed admissible
after being litigated by the parties, overwhelmingly supported
Sierra’s guilt. Even without the statement, “You shoulda just
never answered your cousin’s call that night,” it was apparent
that Venegas was referring to Sierra throughout his conversation
with the agent. While Venegas was in the cell with the agent,
Detective Archie walked Sierra past to help stimulate
conversation. Venegas expressed skepticism that Sierra was
cooperating with law enforcement, noting, “Nah, he’s my [cousin]
holmes.” Venegas told the Perkins agent, “I picked him up and
then he’s like, turn right here. [¶] . . . [¶] . . . [r]ight there. [¶] . . .
[¶] He got out of the car, he ran over there, I just heard ba—ba—
ba—ba. He came running back to the car and we took off.”
The Perkins agent asked, “So, who—it was—it was just you two
by yourself?” Venegas responded “Uh-huh.” The agent also
confirmed with Venegas that he was talking about Sierra rather
than Sierra’s brother, who was also detained as part of the
investigation, identifying Sierra by his tattoos, age, and body
type. Further, when the agent suggested Venegas had the most
to lose because Venegas had a job, Venegas responded that Sierra
was working with him at the car audio business, which was
11
confirmed by the business owner’s testimony. Thus, in context, it
is obvious, even without the challenged statement, that Venegas
was referring to Sierra when he described the circumstances of
the murder to the agent.
Lastly, the other evidence against Sierra clearly
established his guilt. The surveillance footage showed a man
matching Sierra’s physique shoot Garcia in the back after he got
out of a vehicle matching a van owned by Sierra’s and Venegas’s
employer, which Venegas had access to on the day of the murder.
Venegas’s cell phone activity showed that he was in contact with
Sierra just before the murder and that he was in the area of the
crime scene in the minutes just before and after the shooting.
There was also Sierra’s history of threatening to kill Garcia and
his physical abuse in relation to her visits with Larry S., which is
precisely where Garcia was coming from when she was murdered
at a bus stop a block away from Sierra’s residence. This evidence
was uncontroverted and supported by multiple witnesses,
surveillance footage, cell phone location data, and text messages.
The jury’s short deliberation, which lasted just over an hour,
supports the conclusion that this was not a close case.
We also reject Sierra’s claim that he was prejudiced
because the statement specifically implicated Sierra as the
planner and shooter, and defense counsel had not planned for
this in preparing a defense. As discussed above, the entirety of
the audio recording supported the conclusion that Sierra was the
shooter, and that Venegas drove him to the crime and helped
Sierra hide evidence after the fact. Sierra’s argument that he
was unprepared for this theory rings hollow when he had access
to the audio recording for over three years.
12
Sierra argues that this case is akin to Velasco-Palacios,
supra, 235 Cal.App.4th 439. In Velasco-Palacios, the trial court
granted the defendant’s motion to dismiss on the grounds that
the prosecutor engaged in outrageous government conduct. (Id.
at p. 444.) There, the prosecutor fabricated and added two
additional lines to a translation of defendant’s police
interrogation. (Id. at pp. 442–443.) The fabricated lines of the
transcript were essentially an admission of guilt to a more
serious crime that the prosecutor attempted to use as leverage
against the defendant to accept a plea. (Id. at p. 442.) When
defense counsel confronted the prosecutor about the fabricated
portions of the transcript, the prosecutor admitted that he added
the lines “in jest,” and later testified that the added lines were “a
joke.” (Id. at p. 443.) The trial court dismissed the charges,
finding that, even if the lines were added as a joke, the
dissemination of a fraudulent confession during plea negotiations
was egregious, outrageous, and shocked the conscience. (Id. at
p. 444.) The reviewing court affirmed the dismissal, concluding
that the prosecutor deliberately altered the transcript to justify
charges that could carry a life sentence and distributed the
transcript to defense counsel when he knew that the defense was
trying to settle the case. (Id. at p. 447.)
The circumstances in Velasco-Palacios are a far cry from
what occurred here. Unlike the prosecutor in Velasco-Palacios,
the prosecutor here did not fabricate evidence to force a plea deal.
Indeed, Sierra, the prosecutor, and the trial court all agree that
the prosecutor’s alterations were an accurate transcription of the
recording. Sierra’s insistence that the timing of the belated
revisions to the transcript were essentially “sandbagging” is not
supported by the record as Sierra and his counsel had access to
13
the recording, which contained the challenged statements that
could be heard “clear as a bell” for over three years.
Because Sierra cannot show that he was deprived of due
process, or that he would have obtained a more favorable outcome
had he been notified of the challenged statement, he cannot
establish prejudice. Therefore, his claim is denied.
II. The Prosecutor’s Comments on Codefense Counsel’s
Closing Argument Did Not Constitute Misconduct
Sierra next argues that the prosecutor committed
misconduct when he commented during closing argument that
Venegas’s counsel recognized the overwhelming evidence against
Sierra. Again, we disagree.
A. Additional Background
During closing argument, Venegas’s counsel argued that,
while the evidence tended to show that Venegas drove Sierra to
the murder and hid evidence after the fact, there was no evidence
that Venegas knew Sierra was going to commit the murder or
that he was involved in the murder itself. Venegas’s counsel thus
essentially conceded that Venegas and Sierra were present at the
scene, but argued that Venegas was not guilty of murder because
he did not know that Sierra was going to shoot Garcia. In
contrast, Sierra’s counsel’s primary contention at closing was
that the prosecutor had not met his burden of proof, and that it
was likely that Garcia was shot by an unknown third party, who
intimidated Venegas into assisting him or her in the murder.
During rebuttal, the prosecutor commented on the
inconsistencies between Venegas’s and Sierra’s defenses. “Let’s
just quickly look at what the defense is. Well, they didn’t put on
a defense. Their defense is essentially that I didn’t meet the
burden of proof. There was no testimony from the defense. They
14
were saying the district attorney’s office came up short. Larry
Sierra specifically saying it wasn’t me and [Venegas] saying he
didn’t know. [¶] . . . So the defenses aren’t completely in sync,
right? [Venegas] saying it was my cousin. I yelled . . . afterwards
what the fuck happened, but I didn’t know. Sierra’s attorney
saying he’s saying something completely different. That Larry
Sierra wasn’t in the car at all. So their defenses are not
consistent. [¶] But [Venegas’s] attorney recognizes that the
evidence against Larry Sierra as the shooter is overwhelming.”
Following the prosecutor’s statement, Sierra’s counsel
objected and asked for a sidebar, which the trial court denied.
After the conclusion of closing argument, the trial court allowed
the parties to argue the objection. Sierra moved for a mistrial,
arguing that the prosecutor’s comment improperly “boot-
strapped” Venegas’s counsel’s argument and concessions to
bolster the prosecution’s case against Sierra.
The trial court denied the motion for mistrial, finding that
the prosecutor was merely commenting on the evidence, which
overwhelmingly supported Sierra’s guilt.
B. Governing Law
During closing argument, a “prosecutor is given wide
latitude to vigorously argue his or her case and to make fair
comment upon the evidence, including reasonable inferences or
deductions that may be drawn from the evidence.” (People v.
Ledesma (2006) 39 Cal.4th 641, 726.) While a prosecutor is not
allowed to make false or unsubstantiated accusations that
counsel is fabricating a defense or deceiving the jury, he or she
has broad discretion to describe the deficiencies in opposing
counsel’s tactics. (People v. Bemore (2000) 22 Cal.4th 809, 846.)
15
A prosecutor may permissibly criticize the defense counsel’s
argument. (People v. Marquez (1992) 1 Cal.4th 553, 575–576.)
C. Analysis
The prosecutor’s comment that Venegas’s attorney
recognized the overwhelming evidence against Sierra or that the
counsel’s theories were inconsistent was not misconduct. As
discussed above, that was an accurate assessment of the evidence
against Sierra, as well as Venegas’s counsel’s closing argument.
Throughout his argument, Venegas’s counsel acknowledged that
the evidence of Sierra’s and Venegas’s involvement in the crime
was so overwhelming that the only available defense was that
Venegas did not know that Sierra intended to kill Garcia. Thus,
the prosecutor’s comments were squarely based on the evidence
and responsive to both Sierra’s and Venegas’s counsel’s closing
arguments. It is not misconduct for the prosecutor to comment
on the “persuasive force of defense counsel’s closing argument
. . . .” (People v. Zambrano (2007) 41 Cal.4th 1082, 1155), and
generally, there will be no misconduct where comments focus the
jury on the evidence rather than distracting it from its task
(People v. Redd (2010) 48 Cal.4th 691, 735).
Sierra argues that the prosecutor’s comment was arguing
facts not in evidence, and that it improperly bolstered the
credibility of the prosecution’s witnesses. Sierra is incorrect.
The prosecutor’s reference to the inconsistent defenses was an
appropriate response to the defense’s arguments and was based
on the state of the evidence presented at trial.
Accordingly, we find that the prosecutor’s comment
regarding Venegas’s counsel’s closing argument was not
misconduct and thus not grounds for a mistrial.
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DISPOSITION
The judgment is affirmed.
VIRAMONTES, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
17