People v. Gomez CA2/4

Filed 12/11/20 P. v. Gomez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B295182
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA087810)
v.
JORGE GOMEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Hilleri G. Merritt, Judge. Affirmed in
part, reversed in part, and remanded.
Caneel C. Fraser, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Steven D. Matthews and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________________________________
INTRODUCTION
Appellant was convicted of premeditated and
deliberate attempts to murder four of his abused ex-
girlfriend’s family members, viz., her mother Gisela C., her
aunt Rosa Maria C., and two of her sisters, Leah C. (then
three years old) and Aurora C. (11 months old).1 He was also
convicted of committing a misdemeanor hit and run (count
seven) while fleeing from police in his car. He had stipulated
to the facts charged in count seven without expressly
waiving his constitutional trial rights with respect to that
count, or being advised on the record that the stipulation
had the effect of waiving them.
At trial, appellant’s ex-girlfriend, Catherine C.,
testified (without objection) about three separate occasions
on which he hit her, the last of which occurred on December
6, 2016. The jury received evidence of appellant’s
misdemeanor domestic violence conviction arising from the
1 Because the members of the C. family share a surname, we
refer to them by their first names to avoid confusion and to
preserve the anonymity of the minor victims.
2
December 6 incident, and of an attendant restraining order
requiring appellant to stay away from Catherine. She
further testified, and appellant admitted, that they
continued seeing each other until the night of December 17,
2016. That night, after appellant dropped Catherine off at
her aunt Rosa’s house and she failed to respond to his text
messages, he came to Rosa’s door and continuously insisted
on seeing Catherine, refusing to leave until the police
arrived in response to her cousin’s 911 call. Though
Catherine had been living with her mother Gisela, she
decided that night to get away from appellant by moving in
with her father, and communicated that decision to
appellant.
The next afternoon -- as established by Gisela’s and
Rosa’s testimony, as well as appellant’s admissions --
appellant knocked on the door of Gisela’s apartment, forced
his way in (or refused to leave until Gisela relented), and
continuously demanded to see Catherine, despite the
women’s confirmation that she was at her father’s home.
When Rosa attempted to call the police, appellant struck the
phone from her hand and drew a chef’s knife. According to
the two women, he then attempted to stab three-year-old
Leah, but Rosa shielded Leah with her arm. Appellant then
struck Rosa with the knife six times, including on her head
and chest. When Gisela fled, holding baby Aurora in her
arms, appellant chased her and struck her with the knife
seven times, perforating one of her lungs. Aurora also
sustained a minor wound to her abdomen and two stab
3
wounds to her thigh. Two of Gisela’s neighbors witnessed
appellant’s attack on her and testified that immediately
after the attack, appellant’s facial expression looked satisfied
and remorseless; one of the neighbors additionally testified
that during the attack, appellant’s expression looked “really
mad” and “like saying . . . , ‘Die, you bitch.’” After appellant
fled, he sent Catherine a message saying he had done
something she would remember him by, along with a picture
of his bloody hands. Appellant testified that he began using
crystal methamphetamine around the time he first hit
Catherine, that he had used it on the morning of the attack,
and that he had not been thinking during the attack.
The trial court denied appellant’s request to instruct
the jury on the heat of passion theory of attempted voluntary
manslaughter. Appellant did not request an instruction that
provocation can raise a reasonable doubt regarding
premeditation and deliberation, and the court did not deliver
one sua sponte. The jury convicted appellant of the
attempted murders of Gisela, Rosa, Leah, and Aurora, and
found them premeditated and deliberate. On each of the
attempted murder counts, the court sentenced appellant to a
term of 15 years to life. The court ordered the sentences to
run consecutively (commenting that it did not know that it
had discretion to do otherwise), and imposed fines and fees
without determining appellant’s ability pay.
On appeal, appellant contends the trial court
prejudicially erred at trial by: (1) admitting the neighbors’
testimony that appellant appeared to have certain mental
4
states during and immediately after his attack on Gisela; (2)
admitting Catherine’s testimony about appellant’s acts of
domestic violence prior to the December 6, 2016 incident for
which he was convicted; (3) denying his request to instruct
the jury on the heat of passion theory of attempted voluntary
manslaughter; (4) failing to instruct the jury, sua sponte,
that provocation can raise a reasonable doubt regarding
premeditation and deliberation; and (5) accepting his
stipulation to the facts alleged in count seven (misdemeanor
hit and run) without obtaining a voluntary and intelligent
waiver of his constitutional trial rights. He additionally
contends that his trial counsel was unconstitutionally
ineffective for failing to object to the admission of
Catherine’s challenged testimony, and that he was
prejudiced by the cumulative effect of the court’s asserted
evidentiary and instructional errors. Finally, he contends
the court erred at sentencing by: (1) imposing 15-years-to-
life terms on his attempted murder convictions, rather than
the proper terms of seven years to life; (2) failing to exercise
its discretion whether to run his indeterminate life sentences
concurrently; and (3) imposing fines and fees without
determining his ability to pay. The People dispute each of
appellant’s contentions of trial error, but concede that his
15-years-to-life terms on his attempted murder convictions
are erroneous, and that the court may address concurrent
sentencing and ability to pay at appellant’s resentencing
hearing.
5
We conclude that appellant’s stipulation to the facts
alleged in count seven was tantamount to a guilty plea, and
that the record does not affirmatively show he voluntarily
and intelligently waived his trial rights with respect to that
count. Accordingly, we reverse his conviction on count seven.
We otherwise affirm his convictions. We remand for further
proceedings on count seven and for resentencing. At
resentencing, the court must impose the correct seven-years-
to-life sentence on each attempted murder conviction. We do
not resolve appellant’s contentions concerning concurrent
sentencing and ability to pay fines and fees, as the court may
address these issues at resentencing.
PROCEEDINGS BELOW
A. Prosecution Case
The People charged appellant with four counts of
attempted murder (Pen. Code, §§ 187, 664; counts one, two,
three, and eight); four counts of assault with a deadly
weapon (id., § 245, subd. (a)(1); counts 10 through 13); and
one count each of resisting an officer by force (id., § 69; count
four), recklessly fleeing a peace officer (Veh. Code, § 2800.2;
count five), first degree burglary (Pen. Code, § 459; count six),
misdemeanor hit and run (Veh. Code, § 20002, subd. (a);
count seven), and dissuading a witness by force or threat
(Pen. Code, § 136.1, subd. (c)(1); count nine). The People
alleged, inter alia, that the attempted murders were
premeditated and deliberate. (Id., § 664; see also People v.
Gonzalez (2012) 54 Cal.4th 643, 654 [“The crime of
6
attempted murder is not divided into degrees, but the
sentence can be enhanced if the attempt to kill was
committed with premeditation and deliberation”].)
1. Appellant’s Possessive and Abusive
Relationship with Catherine
Catherine testified that she and appellant started
dating in December 2015, when they were coworkers at a
grocery store. Appellant exhibited jealousy throughout their
relationship. Sometime before October 2016, she had a
conversation with a coworker named Kevin, which upset
appellant, who began yelling at Kevin. Catherine finished
her shift and left with appellant, who implied he and Kevin
had agreed to fight each other and insisted on waiting for
Kevin nearby. Though they waited for Kevin, she dissuaded
appellant from fighting him, and Kevin eventually left the
store without incident. Shortly thereafter, appellant asked
Catherine if she wanted to be with him, and she said no. He
slapped her. He started kicking her, and pulled her into his
car by her hair. Afraid, she told him she wanted to be with
him after all, “just so he could calm down.”
On October 29, 2016, while Catherine and appellant
were both working at the store, appellant demanded to “go
through [her] phone,” and began to follow her to the break
room. His manager told him to get back to work; rather
than comply, appellant punched a computer in frustration.
The manager told appellant he was suspended until further
notice and ordered him to leave. Appellant left with
7
Catherine, telling her they had both lost their jobs because
“if he lost his job, [she] did too.” While driving away with
Catherine, appellant elbowed her face and punched her ribs
multiple times. She was sore after, but did not sustain any
injuries. Though nobody but appellant told Catherine she
had been fired or suspended, she never returned to work at
the store.
On December 6, 2016, Catherine and appellant argued
at her home (her mother Gisela’s apartment), where he had
spent the previous night. Catherine asked him to leave, but
he refused. She walked with him to the front of the
apartment complex, carrying her baby sister Aurora.
Appellant then headbutted her multiple times. She was still
holding Aurora when he did so. The police came and
arrested him. The following exhibits were received in
evidence: (1) a record of appellant’s December 8, 2016
misdemeanor conviction for one count of willfully inflicting
corporal injury on a person with whom he had a dating
relationship (Pen. Code, § 273.5, subd. (a)); and (2) a
December 8, 2016 protective order requiring appellant to
stay 100 yards away from Catherine.
Gisela testified that after appellant headbutted
Catherine on December 6, 2016, while she was holding baby
Aurora, the Department of Children and Family Services
(DCFS) began visiting Gisela’s home. A DCFS agent had
Gisela sign an agreement to call the police if appellant came
to their home. Appellant was soon released from jail, and he
8
called Gisela to ask to see Catherine. She forbade him from
continuing to see her.
2. Appellant’s Violations of the Restraining
Order
Catherine testified that she and appellant continued
seeing each other after he was released from jail. He called
Gisela a “bitch” and expressed a belief that she was the one
who had called the police on December 6. On December 17,
appellant told Catherine that his life was over as a result of
his conviction (which he mistakenly believed was a felony
conviction) because it would prevent him from getting a job.
He discussed a desire to stage a scenario in which he would
hurt Catherine and then either she would kill him or he
would kill himself, making it look like she killed him in
self-defense.
Appellant dropped Catherine off at her aunt Rosa’s
house, at her request. He soon sent her multiple text
messages, but she did not respond because she “wanted him
to go away.” She and her cousin, Isaura C. (Rosa’s daughter),
both testified that when Isaura briefly walked from the
house to her car and back, appellant swiftly followed her to
the house’s front door, which she locked. Appellant
remained at the door and continuously demanded to see
Catherine, disregarding Isaura’s and her father’s demands
that he leave. Isaura telephoned Rosa and, at Rosa’s
suggestion, called 911, “worried he was going to either force
9
his way inside the house or hurt [her] dad physically.”2
Meanwhile, Catherine remained in Isaura’s room, shaking
and crying. The police soon arrived, and appellant fled.
Catherine’s father, at her request, picked her up and took
her to his home. She had decided to live with him -- rather
than return to Gisela’s apartment -- in order to escape
appellant.
3. Appellant’s Attack on Catherine’s Family
Gisela testified that the following day, December 18,
2016, around noon, she was in her apartment with Rosa
(who was visiting to discuss the events at her house the
previous night). Three-year-old Leah and 11-month-old
Aurora were also there. Appellant knocked on the door.
Gisela and Rosa both testified that Rosa told appellant that
Catherine was not home, but he refused to believe Rosa and
insisted on seeing Catherine. He either forced his way into
the apartment (according to Gisela), or attempted to force
his way in until Gisela told Rosa to let him in (according to
Rosa). Inside, Gisela told him he needed to accept that
Catherine had left to live with her father, and asked him to
leave, but he refused. According to Rosa, appellant and
Gisela engaged in a “heated” argument. Rosa told him she
would call the police if he did not leave, and when he still
2 A recording of Isaura’s 911 call was played for the jury.
Isaura informed the 911 operator that Catherine’s boyfriend, who
had “a history of domestic violence,” was following her and
refusing to leave.
10
refused to leave, picked up her phone to call the police.
Appellant struck the phone from Rosa’s hands.
Rosa testified that appellant shouted “he was going to
kill all of [them], that Catherine was going to regret it, [and]
that he was going to leave a memory for Catherine that
w[ould] last her entire life.” Rosa moved to retrieve her
phone, but froze when she saw appellant draw a chef’s knife
from inside his sweatshirt. Appellant turned toward Leah
and lashed out at her with the knife, but Rosa moved
between them, sustaining a stab wound to her left arm.
Appellant then struck Rosa with the knife six times,
including on her face and chest. Rosa fell to the ground, and
appellant began kicking her. He eventually ceased his
attack in order to pursue Gisela, who had fled the apartment.
Gisela corroborated Rosa’s account of appellant’s
attack, including Rosa’s testimony that appellant struck at
Leah with the knife. Gisela further testified that she ran out
of her apartment to seek help from a neighbor, holding
Aurora in her arms (as she had been doing since appellant
arrived). Appellant followed her and struck her seven times
-- four times on her back, twice on her left arm, and once on
her head. She fell to the ground, and appellant ran away.
She looked at her arm, which appeared to be “almost cut in
half,” and realized appellant had been stabbing her. Despite
her efforts to shield Aurora, the baby had a “small nick” on
her abdomen and two stab wounds to her thigh.
One of Gisela’s stab wounds perforated her lung. A
doctor testified that the perforation had been potentially
11
fatal. Gisela received surgery and was hospitalized for five
days. Rosa was hospitalized for three days, and received
stitches on her face and staples in her chest. The doctor
testified that Rosa’s chest wound could have been fatal had
it penetrated deeper. Aurora received stitches on her thigh,
requiring two layers of them due to the depth of her wounds.
4. Sanchez’s and Lopez’s Testimony
Juan Sanchez testified that he and his wife, Judith
Lopez, were neighbors of Gisela. On the day of the stabbings,
Sanchez saw appellant in front of Catherine’s apartment.
Though he was shocked to see appellant there because he
had seen appellant’s recent arrest at their apartment
complex, he returned to his own apartment. Shortly
thereafter, he heard loud screaming and looked out his
screen door.
Sanchez saw Gisela (holding Aurora) exit her
apartment and knock at the apartment next door, screaming
for help. Appellant emerged from Gisela’s apartment.
Gisela tried to get away, but appellant chased her.
Appellant stabbed Gisela multiple times with a knife.
Sanchez testified, “[H]e seemed like he was trying to get to --
just trying to hurt the baby.”
The prosecutor asked Sanchez, “How would you
describe the way you saw him do the stabbing?” He
responded, “I just saw him like really, really -- really mad.
To me, like saying, you know, like, ‘Die, you bitch.’ You
know? That’s the expression I saw on his face.” Appellant’s
12
counsel objected that the “characterization” had “gone way
beyond what he saw.” The court overruled the objection.
When prompted to continue his description, Sanchez
testified, “Well, just to me, the way I saw him, he was -- he
wanted to kill her. He wanted to make sure, you know. Just
a lot of hate on his face expression.” Appellant’s counsel
objected on an unspecified ground and moved to strike. The
court ruled, “The portion regarding ‘he wanted to kill her,’
that will be stricken, as that is an improper lay opinion. He
can describe [how] he looked angry or looked hateful, but as
to the rest, that will be stricken.”
On cross-examination, when appellant’s counsel asked
if appellant left the complex after stabbing Gisela, Sanchez
responded, “Yes. He took off running. He stopped at the
hallway. He turned around to look at her. He stopped for, I
don’t know, a couple seconds or so. But when I saw him,
when he turned around, his facial expression was like he
was just satisfied. Then he turned around and took off.”
Appellant’s counsel objected, on unspecified grounds, to the
“satisfied” portion of the testimony he had elicited. Without
waiting for or requesting a ruling on his objection, he
proceeded to question Sanchez as follows:
“[Appellant’s counsel]: Did he look disturbed?
“[Sanchez]: He didn’t look disturbed at all.
“[Appellant’s counsel]: He looked calm?
13
“[Sanchez]: He looked very calm, very sure of
whatever it was. . . . [T]o me he seemed very firm
on the way he looked at her. I don’t know any
other way to describe satisfaction, but he was just
okay. . . . I didn’t see no other emotions on his
face. Or remorse.
“[Appellant’s counsel]: So you can read emotions?
[¶] . . . [¶]
“[Sanchez]: No. I cannot read emotion like if I’m
perfectly -- but if I see somebody angry or if he --
you can tell when somebody wants to hurt
someone. I mean, I can tell, you know, or when
you are sad or mad, or something. [¶] His
expression, he just ha[d] no -- he didn’t seem like
he had remorse after he looked at her when she
was already -- after he did what he did.”
Sanchez’s wife Lopez corroborated his account of
appellant’s stabbing of Gisela and his conduct in the hallway.
She testified, “He looked back at her, like with a face of --”
Appellant’s counsel interjected, “Your Honor, the description
of the face is one thing, but --” The court responded, “I
understand.” Evidently addressing Lopez, the court
continued, “Rather than what you interpreted it to be, can
you just show what his facial expression was?” Lopez
responded, “Satisfaction.” Appellant’s counsel did not object
or move to strike.
14
5. Appellant’s Conduct After the Attack
Catherine testified that on the day of the stabbings,
appellant sent her a social media message stating that he
was going to ruin her life because she had ruined his, and
further stated, “‘I did something that you will remember me
by.’” He also sent her a picture of his bloody hands.
A Los Angeles Police Department (LAPD) officer
testified that he and a partner responded to a 911 call
regarding the stabbings. After receiving descriptions of
appellant and his car and ascertaining his home address,
they parked near his home in their marked LAPD vehicle,
and observed appellant driving past. They activated their
vehicle’s lights and sirens and began to pursue appellant,
who “began attempting to flee from [the officers].”3 During
the ensuing high-speed chase, appellant struck a stopped,
occupied car and continued fleeing. Appellant eventually
overturned his car on an embankment.
After obeying the officers’ orders to exit the overturned
car, appellant began to flee on foot. He reached a two-story
house that was under construction, climbed a ladder to the
top of the structure, and threatened to jump to his death.
About five hours after the pursuit had begun, appellant
surrendered himself. The officers retrieved a chef’s knife
and a second, smaller knife from appellant’s car. The parties
stipulated that Gisela’s blood was on the chef’s knife.
3 The prosecutor played for the jury a video of the pursuit,
captured on an officer’s body camera.
15
6. The Parties’ Stipulation to the Facts
Alleged in Count Seven
During an October 16, 2018 pretrial hearing, the trial
court addressed appellant, encouraging him to consider
whether he wanted to proceed to trial or instead negotiate a
plea. The court advised appellant he had “an absolute
constitutional right to have a trial” and commented, “If you
feel you absolutely should go to trial, then go to trial.” After
discussion of other matters, the prosecutor asked appellant’s
counsel if appellant was willing to plead no contest to count
seven (misdemeanor hit and run), observing that such a plea
would spare the need to call “a couple of witnesses to prove
that charge . . . .” Appellant’s counsel responded, “We’re
willing to stipulate that in the chase he did a hit and run --
he drove badly. He hit someone and did not stop to exchange
information, insurance information, and fled the scene.” The
court interjected, “It can be done by stipulation or a plea. He
can stipulate or plead outside the presence [of the jury].
What do you want to do?” Appellant’s counsel responded,
“I’d rather stipulate in the presence of the jury.” The
prosecutor and the court indicated their acceptance of the
proposed stipulation. The prosecutor added, “So then if he
stipulates, then it will be up to the jury to find him guilty.”
The court responded, “The jury, he’ll [sic] know as to count
seven. He has already stipulated he hit --” Appellant’s
counsel interjected, “Yeah, yeah. Fine.”
After a midday recess in the hearing, the prosecutor
asked appellant’s counsel, “Counsel, do you . . . stipulate
16
[appellant] admits the facts pertaining to count seven is [sic]
true?” Counsel responded, “Yes.” The court asked, “So I
understand he doesn’t want to admit count seven, but based
on the stipulation, it encompasses him admitting count
seven is true; is that correct?” Counsel responded, “Yes.”
The court did not ask and counsel did not indicate whether
he had discussed the stipulation and its effect with appellant.
The court delivered no advisements to appellant regarding
the stipulation and asked him no questions regarding it.
During the prosecution’s case-in-chief, the prosecutor
read the following stipulation: “[Appellant] admits that the
facts pertaining to count seven is [sic] true.” The court asked,
“Counsel, do you so stipulate?” Appellant’s counsel
responded, “Yes, yes.” The court did not address appellant,
and he did not speak.
B. Defense Case
1. Appellant’s Testimony
Appellant testified that he “started becoming abusive”
when he first hit Catherine in response to her expression of
a desire to break up. He added, “I was real clingy,
possessive of her. I had to talk to her every minute every
day, every second.” He admitted he had headbutted
Catherine twice on December 6, but claimed he had been
“trying to give her an Eskimo kiss.” He acknowledged he
had believed his conviction would prevent him from fulfilling
his career goal of becoming a probation officer, and admitted
he told Catherine he felt “like [he] had no purpose of living if
17
[he] couldn’t be with her.” But he denied he felt suicidal at
the time, or proposed a plan to stage his death as if
Catherine had killed him in self-defense.
Appellant admitted “blowing [Catherine’s] phone up”
after dropping her off at Rosa’s house on December 17,
ignoring Isaura’s and her father’s demands that he leave,
and fleeing from the police. He testified that Catherine
“possibly” told him soon thereafter that she was moving in
with her father. During a recorded interview he gave to the
police on the night of the attack, which was played for the
jury, he said that shortly after he fled from the police at
Rosa’s house, Catherine sent him a text message to the effect
that she was moving in with her father, “far away.” He
testified that he “felt like life was over” that night.
The following morning, December 18, he got
“frustrated” because Catherine still was not responding to
his messages. He retrieved a knife from his home and went
to Catherine’s apartment. He claimed he brought the knife
in order to open a window to her room, which he planned to
enter regardless of her permission, so she would be “forced”
to talk with him. He testified that he had used a knife to
open windows twice before, including once at Gisela’s
apartment.
At Gisela’s apartment, he knocked on the door after
unsuccessfully trying to open Catherine’s window. He
admitted that he refused to leave when told Catherine was
not home, and that he used his foot to block the door when
Rosa tried to close it. Rosa let him in when Gisela told her to.
18
He described Gisela’s behavior inside the apartment as
follows: “She told me she [Catherine] wasn’t here, that she
had moved with her dad for a while, to let things calm down,
to give her her space, that -- Gisela is nice. She’s a nice
woman. She told me, ‘You’re a good kid, but you can’t be
doing things like that to my daughter.’ [¶] She liked me.
She did. She was telling me -- she was giving me advice.”
When asked if Gisela was calling him names, he responded,
“No. She wasn’t. She respected me.”4
He testified that Rosa, on the other hand, was
insulting him: “She was calling me a psychopath, that I’m
crazy, that I needed help, that I’m a stupid idiot, that I
shouldn’t be going to her house, putting her house at risk,
that I’m no one to be doing that. But I was paying her no
attention. [¶] I was paying her no mind until she got a
[wine] bottle and said, ‘If you don’t leave, I’ll hit you.’ [¶] I
said, ‘Go ahead. You don’t know what I’m feeling. I’m
hurt[ing] more than that. Hit me.’” She never tried to hit
him with the bottle. Instead, she responded, “‘Okay, I’m
going to call the cops,’” and picked up her phone. He struck
the phone out of her hand. She responded by grabbing him
by the collar of his sweatshirt.5
4 When asked on cross-examination whether his conversation
with Gisela was a “heated argument,” he responded, “No. Not
whatsoever. She was pretty compassionate. She was
understanding me.”
5 Rosa denied calling appellant a psychopath or a loser,
grabbing a wine bottle, or grabbing appellant.
19
Appellant drew his knife and began stabbing, cutting,
punching, and kicking Rosa. He testified, “I wasn’t trying to
kill her. I was trying to make her hurt, make her feel pain.
Make her feel my pain.” Shortly thereafter, when asked
what he thought he was doing, he responded, “At the time I
didn’t know what I was doing. I didn’t. I just -- this rage got
inside of me that I couldn’t control. I really couldn’t.” He
ceased his attack on Rosa to chase after and attack Gisela,
explaining he panicked when Gisela fled because he did not
know what she was going to do. When asked what he was
trying to do by chasing and attacking Gisela, he responded,
“Hurt her. To let her know how I was feeling.” He blamed
Gisela for keeping him and Catherine apart. He admitted
that after the attack, he sent Catherine a picture of his
bloody hand and a message that he had done something she
would remember him by; he commented that he was “being
stupid” and “wasn’t thinking whatsoever.”
Appellant denied saying, inside Gisela’s apartment,
that he would kill the victims or do something Catherine
would remember for the rest of her life. He further denied
attempting to strike Leah. He claimed he had not intended
to kill Rosa or Gisela, explaining that had he so intended, he
would have brought a gun or used the knife to slash their
necks or disembowel them. He claimed he had been
unaware Gisela was holding Aurora, and that he had never
intended to hurt Aurora or Leah.
On cross-examination, appellant admitted he “chose” to
draw his knife, “chose” to attack Rosa, “chose” to pursue
20
Gisela, and “chose” to stab her rather than strike her
unarmed. He testified he had used the smaller knife found
in his car to cut himself. He initially denied that he had
been trying to kill himself, but after the prosecutor read a
portion of his police interview in which he said he had been
trying to kill himself, he confirmed he “[p]ossibly” had been.
On redirect, appellant claimed he had been “over-
dramatic” when he told the police he had been trying to kill
himself. He also testified that he began using crystal
methamphetamine in fall 2016, before he hit Catherine for
the first time, and that meth made him short-tempered. He
further testified he used meth on the morning of the
stabbings, in order to gain confidence for his attempt to
convince Catherine to reconcile. On further cross-
examination, he admitted he had denied using meth during
his police interview. He claimed he lied to the police on this
point because he was already in enough trouble.
2. Other Defense Testimony
Appellant called his parents as defense witnesses.
They testified they had never known him to be violent before
the December 6 headbutting incident. Appellant’s mother
additionally testified that after the restraining order was
issued, she told appellant Catherine could no longer come to
their home. The night before the stabbings (when Catherine
refused to see appellant at Rosa’s house), she told appellant
it would be best for him to end his relationship with
21
Catherine, and tried to dissuade him from attempting to talk
to her.
A drug recognition expert testified that “explosive,
irrational, violent behavior” is a frequent side effect of
methamphetamine use. He reviewed two photographs of
appellant, one taken around the time of the stabbings and
the other taken two or three months before, and testified
that they showed appellant’s face had developed
“sunkenness,” a possible side effect of methamphetamine use.
C. Jury Instructions and Closing Arguments
After the prosecution rested, the trial court discussed
with counsel whether the prosecution evidence warranted a
heat of passion instruction, and opined that it did not. After
appellant testified, the court informed counsel that it still
believed the evidence did not warrant a heat of passion
instruction. It explained, “You cannot go to a place you’re
not supposed to be with whatever you have on your mind,
force your way in, and then somehow claim this as a sudden
quarrel or heat of passion . . . .” Appellant’s counsel argued
that the provocation needed to be evaluated in light of
appellant’s alleged use of methamphetamine, but the court
disagreed. The court also observed, “[H]e created the
situation.” Appellant’s counsel did not request a pinpoint
instruction on provocation raising a reasonable doubt
regarding premeditation and deliberation.
The court did not instruct the jury on heat of passion or
provocation, but did instruct it on voluntary intoxication. In
22
instructing the jury on premeditated and deliberate
attempted murder, the court advised (per CALCRIM No.
601), “A decision to kill made rashly, impulsively, or without
careful consideration of the choice and its consequences is
not deliberate and premeditated.” The court instructed the
jury on the elements of misdemeanor hit and run. It also
instructed the jury (per CALCRIM No. 222), “During the
trial, you were told that the People and the defense agreed,
or stipulated, to certain facts. . . . Because there is no
dispute about those facts you must also accept them as true.”
The prosecutor argued appellant intended to kill Gisela,
Rosa, Leah, and Aurora, relying on his acts of domestic
violence, evidence that appellant was suicidal at the time of
the stabbings because he knew Catherine was leaving him
permanently, appellant’s arming himself with a knife, and
the number and locations of the stabbings. The prosecutor
further argued appellant’s intent to kill was premeditated
and deliberate, relying on Rosa’s testimony that appellant
stated he would kill the victims to give Catherine something
to remember, his running after Gisela when she fled,
Sanchez’s and Lopez’s testimony that appellant looked
satisfied after the attack, and appellant’s message to
Catherine stating he had done something she would
remember. She argued appellant was angry because
Catherine had left him and he no longer had “control over
her,” leading him to resolve that “if he can’t have her, no one
can.” She argued the jury did not need to deliberate
regarding count seven (misdemeanor hit and run),
23
reminding the jury of appellant’s stipulation “to all the facts
for committing” the offense, and of the instruction requiring
the jury to accept stipulated facts.
Appellant’s counsel argued appellant never attempted
to strike Leah, but did not dispute that he committed assault
with a deadly weapon on Gisela, Rosa, and Aurora. He
argued appellant, under the influence of methamphetamine,
exploded in violence in reaction to the “trigger” of Rosa’s
attempt to call the police. He further argued that the
“irrationality” and “disorganization” of the manner in which
appellant assaulted the victims showed he did not intend to
kill them, and that even if he did, his intent was not
premeditated and deliberate. He twice quoted the jury
instruction that “‘[a] decision to kill made rashly,
impulsively, and without careful consideration of the
consequences is not deliberate and premeditated.’” He
conceded appellant had committed misdemeanor hit and run.
In rebuttal, the prosecutor again argued, “[I]t finally
hit him. This is the end [of his relationship with Catherine],
and if he is going down, he is taking her with him. [¶] . . . If
he can’t have her, no one can.” She argued this motive was
consistent with his telling Catherine “‘If I’m leaving, you’re
leaving’” when he was suspended and ultimately fired from
his job at the grocery store.
D. Verdicts and Sentencing
The jury convicted appellant on all counts, with the
exceptions of count four (resisting an officer by force;
24
dismissed by the court prior to the jury’s deliberations) and
count six (burglary). The jury found true, inter alia, the
allegations that each of the four attempted murders was
premeditated and deliberate.
In the prosecutor’s sentencing memorandum, she
represented that the proper sentence on each attempted
murder conviction was 15 years to life, and requested that
the court sentence appellant to a total of 60 years to life, plus
12 years and two months. In defense counsel’s
memorandum, he argued the court should order appellant’s
sentences on each count to run concurrently, relying
principally on appellant’s alleged use of methamphetamine.
At the sentencing hearing, the court heard statements
from Rosa and two of her daughters, as well as from
appellant, his parents, and his sister. Appellant’s counsel
characterized the case as “some horrible Romeo and Juliet”
arising from an intense first love. He argued for concurrent
sentencing, relying on appellant’s youth (he was 21 at the
time of the stabbings), alleged use of methamphetamine, and
lack of a serious criminal history.6 He concluded, “So the
court has discretion with regard to [concurrent sentencing],
and I think this is an appropriate case to use it in.”
The court responded, “I actually don’t know that I do
have the discretion.” Counsel asked, “For concurrent?” The
6 According to the probation report, appellant had two prior
convictions, viz., his December 2016 misdemeanor domestic
violence conviction and a February 2016 infraction conviction for
speeding (Veh. Code, § 22350).
25
court replied, “The indeterminate life sentences. However --
however, you know, these romantic notions that, ‘Oh, it was
love,’ this isn’t love. You don’t go at a family, including a
toddler and a baby, with a knife and call it love. Obsession?
Sure. Aggression, possession, all these things, maybe; but
these are not acts of love. [¶] . . . [¶] The fact of the matter
was that [appellant] went over to Catherine’s apartment
with knives. When she wasn’t there and he had said his
piece to the family and they didn’t seem particularly swayed,
his reaction was to stab, to chase after Gisela, who was
carrying Aurora, a baby. It didn’t all happen in the same
place. He had to chase after her. She left to try and get help.
[¶] So I don’t believe that this whole tragedy of Romeo and
Juliet -- this isn’t romantic. This isn’t a drama. This isn’t a
play. This is real life, where real people got hurt and real
people could have died.” Addressing appellant, the court
continued, “[T]he bottom line is, you couldn’t have Catherine
and you were going to make everyone there suffer because of
it. [¶] You’re going to have time -- a lot of time -- in prison to
reflect and figure out these things; but understand that as I
sentence you today, I don’t sentence you as a monster or a
person with no redeeming qualities. You’re neither of those
things. You’re a human being who chose violence and you
chose aggression, so much so that even though a baby, an
11-month-old child who is being held by Gisela, that didn’t
stop you. [¶] The evidence before this court and before the
jury, who was instructed on voluntary intoxication, who
heard about the meth use that you said you were using, they
26
heard that and they still believed and the evidence
supported in their minds -- and there’s nothing contrary that
I can see from the evidence -- that if in fact you were using
methamphetamine, that that is not what fueled this. This
was something inside of you, and that’s why in December of
2016, this event occurred.”
The court sentenced appellant to an aggregate term of
60 years to life -- comprising 15-years-to-life terms on each of
the four attempted murder counts -- plus 10 years and eight
months. The court ordered appellant to pay a restitution
fine, a criminal conviction assessment fine, and a court
security fee.
Appellant timely appealed.
DISCUSSION
Appellant contends the trial court prejudicially erred at
trial by: (1) admitting Sanchez’s and Lopez’s testimony that
appellant appeared to have certain mental states during and
immediately after his attack on Gisela; (2) admitting
Catherine’s testimony about appellant’s acts of domestic
violence prior to the December 6 headbutting incident; (3)
denying his request to instruct the jury on the heat of
passion theory of attempted voluntary manslaughter; (4)
failing to instruct the jury, sua sponte, that provocation can
raise a reasonable doubt regarding premeditation and
deliberation; and (5) accepting his stipulation to the facts
alleged in count seven (misdemeanor hit and run) without
obtaining a voluntary and intelligent waiver of his
27
constitutional trial rights. He additionally contends his trial
counsel was unconstitutionally ineffective in failing to object
to the admission of Catherine’s challenged testimony, and
that he was prejudiced by the cumulative effect of the court’s
asserted evidentiary and instructional errors. Finally, he
contends the court erred at sentencing by: (1) imposing
15-years-to-life terms on his attempted murder convictions,
rather than the proper terms of seven years to life; (2) failing
to exercise its discretion whether to run his indeterminate
life sentences concurrently; and (3) imposing fines and fees
without determining his ability to pay.
A. Sanchez’s and Lopez’s Opinion Testimony
Appellant contends the trial court prejudicially erred
by admitting (1) Sanchez’s testimony that while appellant
was stabbing Gisela, his facial expression looked “like
saying . . . , ‘Die, you bitch,’”; and (2) Sanchez’s and Lopez’s
testimony that after stabbing Gisela, appellant looked
satisfied and remorseless. The People contend appellant’s
counsel forfeited his objections to the latter testimony by
failing to object, and that all the testimony was properly
admitted. Appellant replies that his counsel preserved his
objections or, if we find otherwise, was unconstitutionally
ineffective.
1. Principles
A lay witness may testify to an opinion that is both
rationally based on the witness’s perception and helpful to a
28
clear understanding of the witness’s testimony. (Evid. Code,
§ 800; see also id., § 170 [“perception” means sensory
perception].) “Generally, a lay witness may not give an
opinion about another’s state of mind. However, a witness
may testify about objective behavior and describe behavior
as being consistent with a state of mind.” (People v.
Chatman (2006) 38 Cal.4th 344, 397 (Chatman).) Similarly,
a witness may describe another person’s facial expression as
consistent with a state of mind. (See Holland v. Zollner
(1894) 102 Cal. 633, 638-639 (Holland) [“[E]xpressions of the
face . . . are beyond the power of accurate description. Love,
hatred, sorrow, joy, and various other mental and moral
operations, find outward expression, as clear to the observer
as any fact coming to his observation, but he can only give
expression to the fact by giving what to him is the ultimate
fact, and which, for want of a more accurate expression, we
call opinion”]; Wegner et al., Cal. Practice Guide: Civil Trials
& Evidence (The Rutter Group 2020) ¶ 8:668 [scope of
permissible lay opinion includes, e.g., testimony that another
person “‘looked extremely upset,’” “‘seemed alert,’” or “‘looked
nervous’”].)
We review rulings on the admissibility of evidence for
abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690,
724-725.) The admission of evidence violates a defendant’s
federal due process rights if it renders the trial
fundamentally unfair. (People v. Covarrubias (2011) 202
Cal.App.4th 1, 20 (Covarrubias); cf. People v. Abilez (2007)
41 Cal.4th 472, 503 [exclusion of proffered defense evidence
29
violates federal constitutional right to present defense only
in “extraordinary and unusual” circumstances].) Otherwise,
the erroneous admission of evidence violates only state law
and is reviewed for prejudice under the standard established
in People v. Watson (1956) 46 Cal.2d 818, requiring reversal
only if it is reasonably probable that the defendant would
have obtained a more favorable result had the evidence been
excluded. (Covarrubias, supra, at 21.) A “‘reasonable’”
probability under this test is one sufficient to undermine the
reviewing court’s confidence in the outcome. (See In re
Richards (2016) 63 Cal.4th 291, 312-313.)
Generally, “trial counsel’s failure to object to claimed
evidentiary error on the same ground asserted on appeal
results in a forfeiture of the issue on appeal.’” (People v.
Redd (2010) 48 Cal.4th 691, 729.) Even where counsel
objects, counsel “must press for an actual ruling or the point
is not preserved for appeal.” (People v. Hayes (1990) 52
Cal.3d 577, 619; see also 3 Witkin, Cal. Evidence (5th ed.
2020) Presentation, § 401 [“where the court, through
inadvertence or neglect, neither rules nor reserves its
ruling . . . the party who objected must make some effort to
have the court actually rule. If the point is not pressed and
is forgotten, the party may be deemed to have waived or
abandoned it, just as if he or she had failed to make the
objection in the first place”].) To prevail on a contention of
ineffective assistance of counsel, a defendant must prove
“‘“that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional
30
norms, and that counsel’s deficient performance was
prejudicial, i.e., that a reasonable probability exists that, but
for counsel’s failings, the result would have been more
favorable to the defendant.”’” (In re Crew (2011) 52 Cal.4th
126, 150.) “[W]hether or not to object to evidence at trial is
largely a tactical question for counsel, and a case in which
the mere failure to object would rise to such a level as to
implicate one’s state and federal constitutional right to the
effective assistance of counsel would be an unusual one.”
(People v. Seumanu (2015) 61 Cal.4th 1293, 1312
(Seumanu).)
2. Forfeiture
Appellant forfeited his challenges to Sanchez’s and
Lopez’s testimony that after stabbing Gisela, appellant
looked satisfied and remorseless.7 Sanchez first described
appellant’s expression as “satisfied” on cross-examination,
and although appellant’s counsel objected (on unspecified
grounds), he resumed his cross-examination without
requesting or waiting for a ruling on the objection. When
7 The People do not contend that appellant forfeited his
challenge to Sanchez’s testimony that while appellant was
stabbing Gisela, his facial expression looked “like saying . . . , ‘Die,
you bitch.’” Nor could they. Appellant’s trial counsel
immediately objected to this testimony on the same grounds
appellant now challenges it on appeal, viz., that the testimony
was a “characterization” (opinion) not rationally based on
Sanchez’s perception.
31
Sanchez again indicated appellant looked satisfied, and
added that his face showed no remorse, appellant’s counsel
did not object. Nor did he object when Sanchez testified for a
second time that appellant seemed remorseless. By failing
to obtain a ruling on his initial objection (despite his control
of the cross-examination), and by failing to object thereafter,
appellant’s counsel forfeited appellant’s challenges to
Sanchez’s testimony on appeal. (See People v. Hayes, supra,
52 Cal.3d at 619 [“assuming defense counsel made an
objection under Evidence Code section 352, counsel’s failure
to obtain a ruling is fatal to defendant’s appellate
contention”]; 3 Witkin, supra, Presentation, § 401.) Likewise,
by failing to object to Lopez’s similar testimony, he forfeited
appellant’s challenge to her testimony on appeal.
Rather than object to each of Sanchez’s
characterizations, appellant’s counsel challenged their
credibility by questioning Sanchez’s ability to read emotions,
extracting a concession that he could not. For that reason,
in addition to the reasons stated below, we conclude defense
counsel’s failure to preserve appellate challenges to this
testimony neither constituted deficient performance nor
prejudiced appellant. (See Seumanu, supra, 61 Cal.4th at
1313 [“There being a plausible reason why counsel did not
object, we cannot conclude on this record that counsel’s
inaction lacked a reasonable tactical basis”].)
32
3. Error
The trial court acted within its discretion in allowing
the challenged testimony, all of which concerned only the
appearance of certain mental states, as the witnesses
observed in appellant’s facial expressions. (See Holland,
supra, 102 Cal. at 636-640 [trial court properly allowed
witnesses to testify, based on interactions with third party,
that third party appeared irrational at specified time; “‘The
appearance of a person at a given time is one thing; the
opinion of a witness as to the mental condition of that
person . . . is quite another’”].) Had the court interpreted
Sanchez’s testimony that appellant’s expression looked “like
saying . . . ‘Die, you bitch’” as a direct comment on
appellant’s intent, it presumably would have sustained
defense counsel’s objection -- as it did when Sanchez later
testified that appellant “wanted to kill” Gisela. In
sustaining the objection to the latter testimony, the court
aptly commented, “[T]hat is an improper lay opinion. He can
describe [how] he looked angry or looked hateful, but as to
the rest, that will be stricken.” It is evident the court
reasonably interpreted Sanchez’s testimony that appellant’s
expression looked “like saying . . . ‘Die, you bitch’” as an
elaboration on his testimony that appellant looked “really
mad.”8 Under this reasonable interpretation, the testimony
8 Sanchez testified, “I just saw him like really, really -- really
mad. To me, like saying, you know, like, ‘Die, you bitch.’ You
know? That’s the expression I saw on his face.” Appellant does
(Fn. is continued on the next page.)
33
was rationally based on Sanchez’s perception, and the court
acted within its discretion in overruling defense counsel’s
objection to the contrary. (See People v. Weaver (2012) 53
Cal.4th 1056, 1086 [percipient witness’s testimony that
defendant displayed hatred before shooting victim was not
impermissible speculation or improper lay opinion];
Chatman, supra, 38 Cal.4th at 397 [same, regarding
percipient witness’s testimony that defendant seemed to be
enjoying kicking victim].)
The lay opinion cases on which appellant relies are
distinguishable, as none concerned opinion on the
appearance of a mental state as observed in facial
expressions. (See People v. Torres (1995) 33 Cal.App.4th 37,
47-48 [trial court erred by allowing police officer to testify
regarding meaning of robbery and extortion and to opine
defendant’s crimes were robberies]; People v. McAlpin (1991)
53 Cal.3d 1289, 1308-1309 [trial court properly excluded
witnesses’ proffered opinions that defendant was not “a
person given to lewd conduct with children,” to the extent
they proposed to rely on matters other than their
observation of his conduct with children]; People v. Melton
(1988) 44 Cal.3d 713, 742-745 [trial court erred by allowing
prosecutor to elicit testimony about defense investigator’s
failure to take action on information provided by witness,
where prosecutor’s principal purpose was to suggest
not challenge the admission of Sanchez’s testimony that he
looked “really mad.”
34
investigator deemed witness not credible, and jury was
capable of evaluating witness’s credibility for itself]; People v.
Brown (1981) 116 Cal.App.3d 820, 829 [trial court erred by
allowing police officer to opine that defendant worked as
“runner” in transaction, where jury had been instructed on
definition of “runner” and was equally qualified to determine
whether defendant played that role].) Another case on
which appellant relies is inapposite, as it concerned
arbitrary law enforcement rather than the admission of
speculative or otherwise improper opinion. (Jennings v.
Superior Court (1980) 104 Cal.App.3d 50, 55.)
4. Prejudice
Even had we found error in the court’s admission of
Sanchez’s and Lopez’s testimony interpreting appellant’s
facial expressions, we would not find prejudice. We find no
extraordinary circumstances of the type necessary to render
the admission of this testimony a federal constitutional
violation. (See Covarrubias, supra, 202 Cal.App.4th at
20-21; People v. Abilez, supra, 41 Cal.4th at 503.) Thus, we
ask only whether it is reasonably probable that appellant
would have obtained a more favorable result had the
testimony been excluded. (Covarrubias, supra, at 20-21.)
For the reasons explained below, we conclude it is not.
We are confident the jury would have found appellant
intended to kill Gisela (and the other victims) even had the
court excluded Sanchez’s testimony interpreting appellant’s
facial expression at the time he was stabbing Gisela. Jurors
35
are equipped to understand the common-sense proposition
that facial expressions are not so complex as to betray
whether multiple stabbings were intended to kill or merely
to injure. Moreover, there was strong evidence of appellant’s
intent to kill Gisela, including: (1) Rosa’s testimony that
immediately before launching his attack, appellant shouted
that he was going to kill them all and leave a memory for
Catherine that would last her entire life; (2) Gisela’s
testimony that he stabbed her seven times -- four times in
her back, twice in her left arm, and once in her head -- and
perforated one of her lungs; (3) the expert’s testimony that
Gisela’s perforated lung could have been fatal; and (4)
Catherine’s undisputed testimony that after the attack,
appellant sent her a message depicting his bloody hands and
telling her -- in terms echoing his alleged expression of
intent to kill at the outset of his attack -- that he had done
something she would remember him by.
We are likewise confident that even had the court
excluded all the challenged testimony, the jury would have
found appellant’s intent to kill premeditated and deliberate.
A decision to kill is “premeditated” if considered beforehand
and “deliberate” if resulting from careful thought and
weighing of competing considerations. (People v. Lee (2011)
51 Cal.4th 620, 636.) The required extent of reflection may
occur quickly. (Ibid.) Here, Sanchez’s interpretation of
appellant’s enraged expression was consistent with
appellant’s defense that he acted in a methamphetamine-
influenced explosion of rage, which arguably weighed
36
against a finding of deliberation. Further, Sanchez’s and
Lopez’s testimony that appellant looked satisfied and
remorseless was overshadowed by appellant’s
aforementioned message to Catherine after the attack,
which more powerfully evinced his lack of remorse and his
satisfaction in having harmed Catherine by harming her
family. His message was only one component of the strong
evidence of premeditation and deliberation, which also
included: (1) multiple witnesses’ testimony, including
appellant’s admission, that he chased after a fleeing Gisela
in order to stab her; (2) Catherine’s testimony that before the
attack, appellant expressed anger at Gisela arising from his
belief that she had made the 911 call leading to his domestic
violence conviction, which he believed had ruined his career
prospects and, by extension, his life; and (3) appellant’s
admissions that he “chose” to draw his knife, “chose” to
pursue Gisela, and “chose” to stab her rather than strike her
unarmed.
In sum, even had we found error in the court’s
admission of Sanchez’s and Lopez’s testimony interpreting
appellant’s facial expressions, there is no reasonable
probability appellant would have obtained a more favorable
result had the testimony been excluded.
B. Appellant’s Pre-December Acts of Domestic
Violence
Appellant contends the trial court prejudicially erred
by admitting Catherine’s testimony about appellant’s acts of
37
domestic violence prior to December 2016 (he does not
challenge the admission of her testimony about the
December 6 headbutting incident, or of his resulting
conviction and restraining order). He argues the challenged
testimony was inadmissible on two grounds: (1) Evidence
Code section 1101 barred its admission because it was
character evidence offered to prove his violent disposition;
and (2) Evidence Code section 352 barred its admission
because its probative value was substantially outweighed by
the risk of unfair prejudice. Acknowledging his trial counsel
did not object on these grounds below, appellant contends his
counsel was unconstitutionally ineffective in failing to do so.
1. Principles
Generally, “evidence of a person’s character or a trait of
his or her character,” including such evidence in the form of
“evidence of specific instances of his or her conduct,” is
inadmissible “when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) However,
this rule does not prohibit the admission of “evidence that a
person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive . . . ) other than
his or her disposition to commit such an act.” (Id., § 1101,
subd. (b).) “‘[T]he probativeness of other-crimes evidence on
the issue of motive does not necessarily depend on
similarities between the charged and uncharged crimes, so
long as the offenses have a direct logical nexus.’” (People v.
Fayed (2020) 9 Cal.5th 147, 191.)
38
“The court in its discretion may exclude evidence 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.” (Evid. Code, § 352.) “The evidence barred by Evidence
Code section 352 is evidence that uniquely causes the jury to
form an emotion-based bias against a party and that has
very little bearing on the issues of the case.” (People v.
Thornton (2007) 41 Cal.4th 391, 427.) “‘“Because a motive is
ordinarily the incentive for criminal behavior, its probative
value generally exceeds its prejudicial effect, and wide
latitude is permitted in admitting evidence of its existence.”’”
(People v. McKinnon (2011) 52 Cal.4th 610, 655, quoting
People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.)
Motive has probative value regarding premeditation and
deliberation; indeed, it is one of three “Anderson factors”
often considered by courts in assessing evidence of
premeditation and deliberation. (People v. Shamblin (2015)
236 Cal.App.4th 1, 10 & fn. 16, citing People v. Anderson
(1968) 70 Cal.2d 15, 26-27.)
2. Analysis
Appellant forfeited his objection to the admission of the
challenged testimony by failing to object in the trial court.
(See People v. Redd, supra, 48 Cal.4th at 729.) We reject
appellant’s reliance on narrow exceptions to the general rule
requiring an objection in the trial court, which apply only
39
where an objection would have been futile, or the error was
so prejudicial that it violated the defendant’s federal
constitutional rights. (See People v. Abbaszadeh (2003) 106
Cal.App.4th 642, 649-650 [“In our view the error [in
instructing prospective jurors to lie about harboring racial
prejudice] is so shocking, affecting the structural integrity of
the trial, that it . . . not only affected the substantial rights
of this defendant but, if the conviction were upheld, would
tend to impair the integrity of the judiciary”]; id. at 648-649[objection would have been futile in light of trial court’s
repeated refusal to acknowledge identical error in separate
case].) For the reasons stated below, we also reject
appellant’s alternative contention that his counsel was
unconstitutionally ineffective in failing to object.
Appellant’s counsel had reason to refrain from
objecting under Evidence Code section 1101. The evidence of
appellant’s pre-December acts of domestic violence was not
offered to prove that he had a disposition to commit such
acts and, in conformity with that disposition, committed acts
of domestic violence against the victims of the charged
offenses (who were not in any protected relationship with
him, as appellant himself emphasizes). (See Evid. Code,
§ 1101, subds. (a)-(b).) Rather, as demonstrated by the
manner in which the prosecutor relied on the evidence
during closing arguments, the evidence was offered to
support the prosecution theory of motive, viz., that appellant
was motivated to attack Catherine’s family to punish
40
Catherine for leaving him.9 The evidence supported the
theory by illustrating the depth of his sense of possession
over Catherine and the lengths to which he would go to
maintain it. Each pre-December act was triggered by
threats to his sense of possession over Catherine, viz., her
conversation with a perceived rival for her affections, her
resistance to his demand to search her phone, and her
expression of a desire to leave him.10 Appellant’s reliance on
the lack of similarity between the prior acts and the charged
offenses is misplaced, as the lack of similarity was
immaterial to the acts’ probative value regarding motive.
(See People v. Fayed, supra, 9 Cal.5th at 191.) Accordingly,
appellant’s counsel reasonably declined to make an objection
under Evidence Code section 1101.
The same is true regarding an objection under
Evidence Code section 352. Because the evidence supported
9 The prosecutor argued appellant was angry because
Catherine had left him and he no longer had “control over her,”
leading him to resolve that “if he can’t have her, no one can.” In
rebuttal, she supported this argument with reference to his
forcing Catherine to leave her job when he was suspended
(immediately before he hit her). The trial court evidently
credited this prosecution theory, telling appellant at sentencing,
“[T]he bottom line is, you couldn’t have Catherine and you were
going to make everyone there suffer because of it.”
10 Thus, contrary to appellant’s contention, the testimony was
not cumulative to the evidence of the December 6 incident.
Catherine did not specify any trigger for appellant’s violence on
December 6.
41
the prosecution theory of motive, it had substantial
probative value regarding, inter alia, the allegations of
premeditation and deliberation. (See People v. McKinnon,
supra, 52 Cal.4th at 655; People v. Shamblin, supra, 236
Cal.App.4th at 10 & fn. 16.) Considered in a vacuum, the
evidence might have tended to evoke “an emotion-based
bias” against appellant (see People v. Thornton, supra, 41
Cal.4th at 427), but this tendency was insubstantial in the
context of the unchallenged evidence at appellant’s trial.
The unchallenged evidence includes appellant’s admissions
to: (1) being convicted of hitting Catherine while she was
holding a baby; (2) violating his resulting restraining order
by defying her and her relatives’ requests to leave her alone
at Rosa’s house; (3) attempting to violate the restraining
order again by forcing his way into Gisela’s apartment in
search of Catherine; (4) viciously stabbing Rosa in reaction
to her reasonable demands that he leave and her reasonable
attempt to call the police; (5) chasing after a fleeing Gisela;
(6) viciously stabbing Gisela while she was holding her baby;
and (7) sending Catherine a message that he had done
something she would remember him by, with a picture of his
bloody hands. In addition to appellant’s admissions, the
unchallenged evidence included Rosa’s and Gisela’s
testimony that appellant attempted to stab three-year-old
Leah, Sanchez’s testimony that appellant appeared to be
trying to hurt 11-month-old Aurora, and evidence that the
baby was indeed injured. In this context, the jury’s emotions
were unlikely to be inflamed by the evidence that he had hit
42
Catherine on two additional occasions (without a weapon,
and without inflicting injury), bullied her into leaving her job
at a grocery store, and made unfulfilled plans to fight a
perceived rival. Thus, the risk of unfair prejudice did not
substantially outweigh the evidence’s probative value. (See
Evid. Code, § 352.) Appellant’s counsel reasonably declined
to make an objection under Evidence Code section 352.
In sum, although trial counsel’s failure to object to
Catherine’s testimony regarding appellant’s pre-December
acts of domestic violence forfeited appellant’s challenges to
the testimony on appeal, this is not the type of “unusual”
case in which failure to object implicates the constitutional
right to effective assistance of counsel. (See Seumanu, supra,
61 Cal.4th at 1312.)
C. Omission of Heat of Passion and Provocation
Instructions
Appellant contends the trial court prejudicially erred
by (1) denying his request to instruct the jury on the heat of
passion theory of attempted voluntary manslaughter; and (2)
failing to instruct the jury, sua sponte, that provocation can
raise a reasonable doubt regarding premeditation and
deliberation. In support of both arguments, he identifies two
categories of evidence of provocation: (1) appellant’s
purportedly “acrimonious” relationship with Gisela in the
weeks before the stabbings, during which Gisela forbade him
from continuing to see Catherine; and (2) Gisela’s and Rosa’s
actions immediately before appellant attacked them.
43
1. Principles
A trial court errs in failing to instruct on a heat of
passion theory of attempted voluntary manslaughter if the
theory is supported by substantial evidence, meaning
evidence strong enough to persuade a reasonable jury. (See
People v. Souza (2012) 54 Cal.4th 90, 116.) The theory has
both a subjective component and an objective component.
(People v. Moye (2009) 47 Cal.4th 537, 541, 549; see also
People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.) To
satisfy the subjective component, the defendant must have
experienced emotion “‘so strong that the defendant’s reaction
bypassed his thought process to such an extent that
judgment could not and did not intervene.’” (People v.
Rangel (2016) 62 Cal.4th 1192, 1225.) To satisfy the
objective component, the defendant must have reacted to
provocation “‘that would cause an emotion so intense that an
ordinary person would simply react, without reflection . . . .’”
(Ibid.; accord, People v. Moye, supra, 47 Cal.4th at 550 [“the
conduct must be sufficiently provocative that it would cause
an ordinary person of average disposition to act rashly or
without due deliberation and reflection”].) “A defendant may
not provoke a fight, become the aggressor, and, without first
seeking to withdraw from the conflict, kill an adversary and
expect to reduce the crime to manslaughter by merely
asserting that it was accomplished upon a sudden quarrel or
in the heat of passion. The claim of provocation cannot be
based on events for which the defendant is culpably
44
responsible.” (People v. Oropeza (2007) 151 Cal.App.4th 73,
83.)
Even if provocation is inadequate to support a heat of
passion theory, evidence of provocation’s effect on the
defendant’s state of mind may raise reasonable doubt about
premeditation or deliberation. (See People v. Rivera (2019) 7
Cal.5th 306, 328.) “But an instruction that provocation may
be sufficient to raise reasonable doubt about premeditation
or deliberation . . . is a pinpoint instruction to which a
defendant is entitled only upon request where evidence
supports the theory. [Citation.] The trial court is not
required to give such an instruction sua sponte.” (Ibid.)
2. Analysis
The trial court did not err in omitting instructions on
heat of passion and provocation. Appellant did not request a
pinpoint instruction on provocation, and the court was not
required to deliver one sua sponte. (See People v. Rivera,
supra, 7 Cal.5th at 329 [trial court did not err by failing to
instruct jury that provocation can reduce premeditated
murder to second degree murder, where defendant did not
request such instruction].) Though appellant did request a
heat of passion instruction, the court properly denied the
request because, as explained below, there was no evidence
on which the jury reasonably could have relied to find that
the victims engaged in provocative conduct sufficient to place
45
an average person in a state of emotion precluding
judgment.11
There was no evidence that Gisela engaged in adequate
provocation. Though Rosa testified that Gisela engaged in a
“heated” argument with appellant inside her home (which
appellant denied), an average person in appellant’s
circumstances would have recognized that Gisela had ample
reason to do so. Appellant had been convicted of abusing her
elder daughter while she was holding her baby daughter, in
a manner that resulted in the investigation of her home by
DCFS; had violated the resulting restraining order by
continuing to see her daughter; had refused to leave her
daughter alone at Rosa’s house the night before, resulting in
a police visit and her daughter’s decision to move out of her
home; and had forced his way into her home in an attempt to
again violate the restraining order. According to appellant
himself, even after this behavior on his part, Gisela treated
11 We reject the People’s contention that to the extent
appellant’s argument for a heat of passion instruction is premised
on Rosa’s insults and on his federal constitutional rights, he
forfeited the argument by failing to rely on those grounds in the
trial court. A principal purpose of forfeiture doctrine is to
encourage presentation of issues to the trial court, preserving the
court’s ability to avoid potential errors and thereby conserving
judicial resources that might otherwise be spent responding to
errors only after the fact. (See People v. Gibson (1994) 27
Cal.App.4th 1466, 1468-1469; People v. Butler (2003) 31 Cal.4th
1119, 1128.) Here, that purpose was fulfilled. Appellant
requested a heat of passion instruction and the trial court twice
discussed whether the instruction was warranted by the evidence.
46
him with respect and compassion. All she did was tell
appellant to comply with the restraining order and to accept
her daughter’s desire to end the relationship.12 Gisela’s
conduct was not provocative, let alone so provocative as to
cause an average person to act without reflection.
For similar reasons, even if the jury credited
appellant’s testimony about Rosa’s conduct, it could not
reasonably have found adequate provocation. An average
person in appellant’s circumstances would have recognized
that Rosa had reason to verbally lash out at him in response
to his abuse of her niece, his behavior at her house the night
before (which had brought the police to her home), and his
use of force to prevent her from closing Gisela’s door.
Similarly, the average person would have recognized that
Rosa had reason to attempt to call the police in response to
appellant’s refusal to leave the apartment, particularly
because his conduct constituted an attempt to violate the
restraining order by seeing Catherine. Finally, Rosa had
reason to grab appellant in response to his initial aggression
in striking her phone from her hands. (See People v.
Johnston (2003) 113 Cal.App.4th 1299, 1313 [trial court
properly declined to deliver heat of passion instruction,
where defendant was “‘culpably responsible’” for fight he
instigated and therefore could not establish “that he was
12 Similarly, appellant’s own mother told him not to bring
Catherine home because of the restraining order, and attempted
to persuade him to accept the end of the relationship.
47
provoked when [his victim] took him up on the challenge”];
People v. Oropeza, supra, 151 Cal.App.4th at 83 [same,
where victim intentionally cut off truck in which defendant
was passenger, but defendant was responsible for “mutual
road rage” that allegedly provoked defendant to shoot
victim].) In any event, Rosa’s alleged grabbing of appellant,
even accompanied by her alleged insults regarding
appellant’s intelligence and mental health, was insufficiently
provocative to drive an average person into an unreflective
state of emotion. (See People v. Najera (2006) 138
Cal.App.4th 212, 215, 226 & fn.2 [victim’s pushing defendant
and calling him “‘jota,’” translated at trial to mean “‘faggot,’”
was insufficient to satisfy objective component of heat of
passion theory].)
The cases on which appellant relies are distinguishable,
as they all involved much stronger evidence of provocation
than is present here. (See People v. Wright (2015) 242
Cal.App.4th 1461, 1484-1486 [trial court erred by denying
defendant’s request for heat of passion instruction in
prosecution for murdering her ex-boyfriend, where defendant
testified she was placed in fear by her ex-boyfriend’s
frequent threats to deprive her of custody of their son (which
followed an unsuccessful attempt to do so), and her ex-
boyfriend’s fiancé “corroborated that defendant’s fear was
not unwarranted”]; People v. Borchers (1958) 50 Cal.2d
321,328-329 [victim cheated on defendant, repeatedly urged
him to kill her, and -- immediately before his fatal shot --
taunted him about being “‘chicken’” to shoot her]; People v.
48
Bridgehouse (1956) 47 Cal.2d 406, 408, 410, 413 [victim had
lengthy affair with defendant’s wife, who refused to agree to
divorce or to comply with defendant’s wish that she not see
victim in their minor child’s presence]; People v. Wharton
(1991) 53 Cal.3d 522, 571-572 [defendant’s killing of his
girlfriend was preceded by weeks of provocation, during
which defendant’s statements to psychotherapists indicated
tension was building and he was losing control, and
immediately preceded by his girlfriend throwing a book at
him].)
In sum, because the jury could not reasonably have
found in appellant’s favor on the objective element of the
heat of passion theory, the court did not err by denying his
request for a heat of passion instruction. Having rejected
appellant’s claims of evidentiary and instructional error, we
also reject his claim that he was prejudiced by the
cumulative effect of the asserted errors.
D. Stipulation to Facts Alleged in Count 7
Appellant contends the trial court prejudicially erred
by accepting his stipulation to the facts alleged in count
seven (misdemeanor hit and run) without obtaining a
voluntary and intelligent waiver of his constitutional trial
rights.
1. Principles
“‘Several federal constitutional rights are involved in a
waiver that takes place when a plea of guilty is entered in a
49
state criminal trial.’ [Citation.] These include the privilege
against self-incrimination, the right to trial by jury, and the
right to confrontation. [Citation.] . . . A stipulation that
admits all of the elements of a charged crime necessary for a
conviction is tantamount to a guilty plea. [Citations.]
Accordingly, the record must demonstrate that the
defendant voluntarily and intelligently waived his
constitutional trial rights.” (People v. Farwell (2018) 5
Cal.5th 295, 299-300 (Farwell).) In other words, “the record
must affirmatively demonstrate that the defendant
understood the agreement effectively extinguished his trial
rights.” (Id. at 306.)
Our Supreme Court’s decision in Farwell illustrates
the application of these principles to facts remarkably
similar to those of the instant case. There, the defendant
was charged, inter alia, with driving without a valid license.
(Farwell, supra, 5 Cal.5th at 298.) The court rejected his
offer to plead no contest to the charge, and “explained [his]
basic trial rights” to him in discussing the prosecution’s plea
offer on a separate charge, which he rejected. (Id. at 298,
307.) During the defense case-in-chief, the defendant
entered into a stipulation that he knowingly drove while his
license was suspended -- a stipulation that “encompassed all
of the elements of” the charge. (Id. at 298-299.) “When the
stipulation was entered, the court did not advise the
defendant of the constitutional rights implicated by a guilty
plea or the stipulation. Nor did it solicit a personal waiver of
those rights.” (Id. at 299.) The court instructed the jury to
50
accept the stipulated facts as true, and the jury convicted the
defendant on the stipulated charge. (Ibid.) The Court of
Appeal upheld the conviction. (Ibid.) The court
acknowledged the stipulation was tantamount to a guilty
plea, but found the defendant had voluntarily and
intelligently waived his trial rights, relying on: (1) the trial
court’s instructions regarding his trial rights during jury
selection, in the defendant’s presence; (2) the fact that the
defendant entered into the stipulation in the midst of a jury
trial; and (3) the defendant’s prior experience with the
criminal justice system, which had resulted in two prior
convictions. (Id. at 299, 306.)
Our Supreme Court reversed in a unanimous opinion.
(Farwell, supra, 5 Cal.5th at 308.) Declining to decide
whether the facts on which the Court of Appeal had relied
affirmatively demonstrated the defendant’s awareness of his
constitutional trial rights “as a general matter,” the court
held that the conviction could not stand because there was
“no affirmative showing that [the defendant] understood he
was waiving his trial rights by virtue of the stipulation
entered on his behalf.” (Id. at 306; see also id. at 307-308
[concluding there was no affirmative evidence the defendant
“understood his stipulation would conclusively establish all
of the elements of the misdemeanor crime and make the
guilty verdict a foregone conclusion”].) The court observed,
“The [trial] court did not discuss the stipulation or its legal
51
effect with [the defendant]. Nor did counsel confirm on the
record that she had done so.”13 (Id. at 307.)
2. Analysis
As in Farwell, appellant’s stipulation to the facts
charged in count seven was tantamount to a guilty plea. As
read to the jury, the stipulation provided that “the facts
pertaining to count seven” were true. The jury must have
understood this language to mean that the stipulation
“encompassed all of the elements of” the offense. (Farwell,
supra, 5 Cal.5th at 298-299.) Accordingly, the conviction
must be reversed unless the record contains affirmative
evidence that appellant understood he was waiving his trial
rights by virtue of the stipulation. (See id. at 300, 306.)
As in Farwell, the record reveals no such affirmative
evidence. When the stipulation was discussed and entered
into before and during trial, the trial court did not discuss
the stipulation’s legal effect with appellant, and his counsel
did not represent that he had done so. (See Farwell, supra, 5
Cal.5th at 307; People v. Cross (2015) 61 Cal.4th 164, 180
13 The court rejected a proposed assumption that counsel had
discussed the stipulation’s legal effect with the defendant,
reasoning that on the facts before it, which established that the
defendant “would correctly have understood that . . . the
prosecution bore the burden of proving him guilty” at the time his
counsel entered the stipulation, the proposed assumption could
not substitute for affirmative evidence that the defendant
understood the stipulation’s legal effect. (Farwell, supra, 5
Cal.5th at 307-308 & fn. 9.)
52
[finding no indication defendant’s stipulation to prior-
conviction allegation was voluntary and intelligent, where
trial court did not ask whether defendant had discussed
stipulation with counsel, ask any questions of defendant
personally, or inform him of his trial rights].) Moreover, the
manner in which the stipulation was discussed before trial
might have misled appellant regarding its legal effect. His
counsel rejected the prosecution’s request that he plead no
contest to count seven, and confirmed the court’s impression
that appellant did not “want to admit count seven” --
potentially obscuring the fact that the stipulation was
tantamount to a guilty plea. Further, the prosecutor stated
that “if he stipulates, then it will be up to the jury to find
him guilty,” and neither the court nor appellant’s counsel
clearly stated, in response, that the stipulation would make
the jury’s verdict a foregone conclusion.
We reject the People’s reliance on various comments
and exchanges that made no reference to the stipulation,
and on appellant’s prior criminal history (which was limited
to his misdemeanor domestic violence conviction and an
infraction conviction for speeding). Regardless of whether
these comments, exchanges, and prior convictions
demonstrated appellant was aware of his trial rights in a
general sense, neither they nor any other evidence
affirmatively demonstrated he understood he was partially
waiving those rights by virtue of the stipulation. (See
Farwell, supra, 5 Cal.5th at 306.) Accordingly, the
conviction on count seven must be reversed.
53
E. Sentences on Attempted Murder Convictions
Appellant contends the trial court erred by sentencing
him to a term of 15 years to life on each of his attempted
murder convictions, as the proper sentence on each
conviction was seven years to life. The People concede the
court erred.
The parties are correct that the proper sentence on
each conviction, as enhanced by the jury’s findings of
premeditation and deliberation, was seven years to life. (See
Pen. Code, § 664, subd. (a) [typically, punishment for
premeditated attempted murder is life]; id., § 3046, subd. (a)
[unless otherwise provided by law, minimum determinate
term of life sentence is seven years].) A 15-years-to-life
sentence applies only where the victim belonged to one of
several enumerated categories of law enforcement officers.
(Id., § 664, subd. (f) [sentence for premeditated attempted
murder is 15 years to life if defendant knew or reasonably
should have known that victim was peace officer, firefighter,
custodial officer, custody assistant, or nonsworn uniformed
employee of a sheriff’s department engaged in the
performance of his or her duties].) Here, none of the victims
belonged to any of the enumerated categories. The trial
court appears to have been misled by the prosecutor, who
erroneously identified the appropriate sentence on each
attempted murder conviction as 15 years to life.
On remand, the court must correct the sentences on
appellant’s attempted murder convictions. We need not
address appellant’s other sentencing contentions, as the
54
court will have an opportunity to exercise its discretion
regarding concurrent sentencing at the resentencing hearing,
and appellant will have an opportunity to assert his inability
to pay fines and fees. (See People v. Buycks (2018) 5 Cal.5th
857, 893 [“when part of a sentence is stricken on review, on
remand for resentencing ‘a full resentencing as to all counts
is appropriate, so the trial court can exercise its sentencing
discretion in light of the changed circumstances’”].)
55
DISPOSITION
Appellant’s conviction on count seven is reversed. His
other convictions are affirmed. The matter is remanded for
further proceedings on count seven and for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
56