Filed 5/31/24 P. v. Zamora CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR HUGO ZAMORA,

Defendant and Appellant.

 B329521

 (Los Angeles County

 Super. Ct. No. TA155326)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Connie R. Quinones, Judge. Affirmed with 

directions.

Elizabeth Richardson-Royer, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Nicholas J. Webster and 

Michael C. Keller, Deputy Attorneys General, for Plaintiff and 

Respondent.

_______________
2

Victor Hugo Zamora appeals from a judgment of conviction 

after the jury found him guilty of multiple sexual and violent 

offenses against his former girlfriend Cindy M., including forcible 

rape, inflicting corporal injury on a person in a dating 

relationship, assault with a semiautomatic firearm, making a 

criminal threat, and attempting to dissuade a witness. The jury 

also convicted Zamora of attempted murder of a peace officer, 

assault with a semiautomatic firearm on a peace officer, and 

attempted carjacking in connection with Zamora’s attempt to 

evade police. On appeal, Zamora contends the trial court abused 

its discretion in admitting evidence Zamora was a gang member 

and erred in allowing Cindy’s statements to law enforcement and 

a sexual assault response team (SART) nurse into evidence under 

the fresh complaint doctrine. 

We affirm the judgment. However, we direct the trial court 

to correct a clerical error in the abstract of judgment to reflect 

that the trial court imposed a 10-year firearm enhancement on 

count 9 for forcible rape, rather than on count 7 for possession of 

a firearm by a felon. 

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

1. The August 18, 2021 rape of Cindy M.

(a) Cindy’s testimony 

Cindy testified she was in a “boyfriend and girlfriend” 

relationship with Zamora for a few months in 2021. Zamora 

frequently bought her gifts and gave her money, but she was not 

a “prostitute” and he did not pay her for sex. Towards the end of 

their relationship Zamora frequently accused Cindy of having sex 
3

with his “homies.” After they broke up, he sent her angry text 

messages such as, “‘So you want to be enemies? You want 

everyone to laugh at me?’” and “I [would] rather be friends, but 

fuck you and whoever you kick it with too. This is Tone from 

CVTF.’” Cindy knew Zamora was a member of the Compton 

Varrio Tortilla Flats gang with the nickname “Tone.” Zamora

sent Cindy text messages referring to her stupidity and saying, 

“Let me whoop your ass so I can teach you.’” Cindy blocked 

Zamora’s phone number, but he continued to contact her using 

other numbers.

On August 18, 2021 Zamora contacted Cindy using a 

messaging application and invited her to come to the motel where 

he was living. She agreed to go because Zamora was being nice 

and he promised to give her money he owed her. Zamora picked 

Cindy up at her family home around 6:00 or 7:00 p.m. and drove 

her to his motel in Compton. 

Once inside the motel room, “the whole world just flipped,” 

and Zamora started “getting crazy.” He accused Cindy of 

sleeping with his friend and said, “‘You think I’m fucking 

stupid?’” He pushed her head against a wall and tried to force 

her to ingest or snort a white powder he placed on his fingers 

that she believed was crystal methamphetamine. After she spat 

it out, he hit her on her face with his hand and cautioned her, 

“‘Don’t fucking spit,’” or he would feed her more drugs. He called 

her a “‘bitch’” and “whore” and said he would put her in a dog 

cage. After an extended period of trying to force Cindy to take 

drugs and pacing back and forth in the room, Zamora hit Cindy

in the face, causing her lip to bleed. This further agitated 

Zamora who said he now would have to kill her because he did 

not know what else to do with her. 
4

About two hours into the ordeal, Zamora removed a 

semiautomatic handgun1 from under the mattress, put it inside 

Cindy’s mouth, and told her to take off her pants. Cindy 

complied, convinced he would otherwise kill her. Zamora then

pushed her onto the bed and put his penis in her vagina while 

holding the gun in his hand. Cindy was crying, and after a time 

Zamora stopped, got up, and paced back and forth in the room, 

saying words to the effect of “what the fuck am I doing?” and that 

he would have to kill her. Then he returned to the bed and 

resumed sexual penetration. This cycle continued two or three 

times, while Cindy continued to cry and fear for her life. 

Cindy pleaded with Zamora to let her go, begging him at 

least to let her leave so she could see her young children again. 

She promised to return to him after she took the children to 

school. Zamora eventually said he would let her go if she 

promised not to tell his friends or the police; otherwise, he would 

kill her. At about 6:00 or 7:00 a.m. on August 19, Zamora

allowed Cindy to leave the motel. He pointed his gun at her as 

she walked out to his vehicle, and he drove her home, repeating 

that she should not tell anybody.

Once Cindy got home, she “had to pull [herself] together,” 

and she took her children to school. Without showering, Cindy

went to the Los Angeles Police Department (LAPD) station in 

south Los Angeles to report the assault. The LAPD officers told 

her they could not help her because the incident occurred in the 

City of Compton, and they gave her the address for the Compton 

sheriff’s station. Cindy went to the Compton station where she 

1 Cindy testified the gun Zamora used to assault her looked 

similar to the 9-millimeter semiautomatic handgun that police 

later recovered. 
5

reported the assault to Los Angeles Sheriff’s Department (LASD) 

deputies. 

(b) Cindy’s police station interview 

A videotape recording of a portion of Cindy’s August 19 

interview with three sheriff’s deputies was played for the jury, 

and the jury was given a transcript of the audio. During the 

interview, Cindy described how Zamora pulled a gun out from 

under the mattress, cocked it back, put it in her mouth, and told 

her, “take off your fucking pants.” She explained that she 

repeatedly threw herself on the floor to protect herself, but 

fearing for her life, she took off her underwear and got onto the 

bed and lay on her back while Zamora sexually penetrated her. 

Cindy was crying and Zamora stopped “because at that point he 

realized it was rape,” and then he vacillated between pacing 

around while saying words to the effect of, “I don’t know what I’m 

doing tonight,” and continuing to rape her because he had 

already gone too far. Cindy did not know if his strange behavior 

was also a result of his being on drugs. One of the officers asked 

Cindy about a lip injury she had showed the officer before the 

interview; Cindy said Zamora “backhanded” her, making her lip 

bleed. She also said she had dried blood on her ear, which she 

believed was caused by an earring that popped out when Zamora

grabbed her head and pulled her hair. She also reported injuries 

to the outside of her legs.

(c) Examination by the SART nurse

Sheriff’s deputies brought Cindy to a hospital in Torrance 

where she was examined by SART nurse Elizabeth Castillo at 

around 1:00 p.m. on August 19. Castillo collected Cindy’s clothes 

and took photographs and swab samples from Cindy’s body. 
6

Photographs admitted into evidence showed injuries to Cindy’s 

lower and upper lips and bruising above her left knee, which 

Cindy testified was the result of her repeatedly throwing herself 

on the floor when Zamora was on top of her. Zamora’s DNA was 

found on samples taken from Cindy’s face, earlobe, neck, breast, 

and vulva. 

Castillo testified that Cindy was crying and trembling 

when the sheriff’s deputies brought her into the hospital, but she 

was coherent and there was no indication she was under the 

influence of alcohol or drugs. Castillo observed abrasions on 

Cindy’s lips, right wrist, left forearm, left earlobe, neck, the front 

and side of her left thigh and her knee, as well as a bruise on her 

leg. Castillo recalled that Cindy stated her boyfriend had said he

“was going to kill her, he was going to put her in a dog cage if she 

told anybody that he would kill her” and “he had no choice but to 

finish what he started.” Cindy told Castillo that Zamora put a 

gun to her head and in her mouth and he “backhanded” her on 

the face. Cindy also told Castillo that Zamora had been “‘doing 

drugs like crystal meth,’” and he kept putting the drugs on her 

mouth and up her nose. During cross-examination, Castillo 

testified she did not see anything that appeared to be crystal 

methamphetamine on Cindy’s nose or mouth. Castillo admitted 

that other than Cindy’s statements to her, Castillo could not tell 

from her physical examination whether Cindy had consensual 

sexual intercourse with Zamora. 
7

2. The August 19, 2021 police chase, shooting, and 

attempted carjacking2

LASD Sergeants Valerie Franco and David Fujiki, and 

Deputy Juan Tobias went to Zamora’s motel at around 4:30 p.m. 

on August 19, 2021 to follow up on Cindy’s report. Deputy Tobias 

went to the motel registration window to inquire about Zamora 

while Sergeants Franco and Fujiki parked in an alley behind the 

motel. As Deputy Tobias was waiting for the manager to come 

out, he saw a man matching Zamora’s description3 walking 

through the motel parking lot. Zamora saw Deputy Tobias, 

stopped, faced Deputy Tobias, and reached for his waistband. As 

Deputy Tobias moved behind a parked vehicle for cover, he pulled 

out his gun and instructed Zamora: “‘Let me see your hands.’”

Zamora pulled out his own gun and shot at Deputy Tobias, who 

then returned fire. Zamora shot at Tobias again, and Tobias fired 

back. 

Zamora ran toward the alley where Sergeants Franco and 

Fujiki were waiting. Zamora pointed his gun at Sergeant Franco 

and tried to shoot her, but the gun appeared to jam. After 

Sergeant Franco returned fire, Zamora threw his gun in her

direction and fled down the alley. Multiple police officers 

pursued Zamora on foot. Zamora was apprehended after he 

jumped on the hood of a car driving by, the car slammed on its 

2 Because Zamora does not challenge his convictions of

attempted murder, assault on a peace officer, and attempted 

carjacking, we only briefly summarize this portion of the evidence 

at trial. 

3 Cindy had shown the LASD deputies a photograph of 

Zamora when she reported the assault. Deputy Tobias, among 

others, identified Zamora in the courtroom during trial. 
8

brakes, and Zamora flew off. Zamora was arrested and taken to 

the hospital. 

LASD investigators recovered Zamora’s gun from an alley 

behind the motel. The gun was an unregistered 9-millimeter 

semiautomatic ghost gun without a serial number. The gun 

appeared to have malfunctioned with a shell casing stuck in the 

barrel, preventing another bullet from being fed into the 

chamber. Zamora’s DNA, along with the DNA of three others, 

was found on the magazine. 

3. Zamora’s jailhouse call to Cindy

Zamora called Cindy from jail sometime after his arrest. A 

recording of the 30-minute call was played for the jury. At the 

beginning of their conversation, Zamora said to Cindy, “I was just 

checking up on you, making sure you’re good.” Cindy responded, 

“[D]on’t even try to call me and sit here and try to act like 

everything’s cool,” and “What the fuck? You had a gun in my 

mouth, nigga. How the fuck do you expect me to feel?” Zamora 

responded, “I don’t want to talk about none of that right now on 

this.” Zamora then said, “You know I care about you, nigga . . . 

[¶] . . . Like you mean the world to me,” to which Cindy 

responded, “If you cared about me, you wouldn’t have done what 

you did.” 

Zamora told Cindy he needed her help to move some money 

around and wanted the number of “Gismo”; Cindy refused to 

help, saying, “Hell, no. You brought the nigga around who’s 

trying to kill me and shit.” Zamora told Cindy she was crazy and 

“that wasn’t me.” Zamora continued to press her for help to 

contact other associates, move money around, and “to do some 

things out there.” Cindy again refused, saying “What the fuck? 
9

You tried to kill me.” Zamora said, “I was not trying to kill you, 

man” and “I just slapped you around a couple times. That’s it. 

I’ll apologize for slapping you around if you want to hear.” 

Zamora suggested Cindy’s jealousy was “the biggest issue 

we had between us.” Cindy disagreed and said the biggest issue 

was that Zamora “lost it” because he got in a fight with his friend 

after his ex-wife “started fucking with [his] head laughing at 

[him]” and he became “hella tweaked out” on drugs. Zamora 

responded, “We both fucked up. We both fucked [up] by having 

jealousy issues . . . [¶] . . . But mostly it was you.”

Towards the end of the call, Zamora again asked Cindy, “I 

need help to maneuver things around.” Cindy responded, “I’m 

the last person that’ll help you. . . . [You] fucked up, my 

nigga, . . . and I can’t even get an apology.” Zamora responded, “I 

already told you I apologize for beating you up. . . . For slapping 

your ass around so much,” and he asked whether, if he came 

home from jail, she was “still gonna be my girl.” Cindy said no, 

saying she could not forgive him. 

4. Zamora’s ex-wife’s testimony

Zamora’s ex-wife, Magali Tinoco, testified that Zamora was 

physically abusive for several years during their marriage, and

he had been convicted of domestic violence. She recounted that 

in February 2015, after Zamora hit Tinoco during an argument,

she moved with their five children into her parents’ house. 

Zamora came to the parents’ house, cursed at Tinoco, slapped 

her, and was arrested. While in jail, and continuing after he was 

released on bail, Zamora repeatedly called Tinoco to ask her to 

help him, and on multiple occasions when she refused to talk to 

him, he sent her a text message with a picture of a gun. On one 
10

occasion when Zamora was upset at Tinoco, he told her he was a 

member of the “Compton T. Flats” gang. Later in 2015 Zamora 

slapped Tinoco and pulled her hair in an alley behind her 

parents’ house in the presence of their four-year-old daughter. 

Zamora called Tinoco again in 2021 to ask for help while he 

was in jail on the charges filed in this case, but she refused.4

B. The Verdicts and Sentencing

The jury found Zamora guilty of attempted murder of a 

peace officer (Deputy Tobias) (count 1; Pen. Code, §§ 187, 

subd. (a), 664);

5 assault with a semiautomatic firearm upon a

peace officer (Deputy Tobias) (count 4; § 245, subd.(d)(2)); and 

attempted carjacking (count 8; §§ 215, subd. (a), 664).

6 With 

respect to Cindy, the jury found Zamora guilty of forcible rape

(count 9; § 261, subd. (a)(2)); inflicting corporal injury on a person 

in a dating relationship (count 10; § 273.5, subd. (a)); assault with 

a semi-automatic firearm (count 11; § 245, subd. (b)); making a 

criminal threat (count 12; § 422, subd. (a)); and dissuading a 

witness by force or threat (count 13; § 136.1, subd. (c)(1)). Before 

trial, Zamora pleaded no contest to possession of a firearm by a 

felon (count 7; § 29800). As to counts 1, 4, 9, and 11 the jury 

found true Zamora personally used a firearm in the commission 

of the offenses (§ 12022.5, subd. (a)). As to count 1, the jury also 

4 Zamora did not call any witnesses or present evidence at 

trial. 

5 All further undesignated statutory references are to the 

Penal Code.

6 The jury found Zamora not guilty of the attempted assaults

with a firearm of Sergeants Fujiki and Franco, as charged in 

counts 5 and 6. 
11

found true the attempted murder of Deputy Tobias was 

committed against a peace officer in the performance of his duties 

(§ 664, subd. (e)). 

In a bifurcated proceeding, the trial court found true

Zamora suffered a prior strike conviction in 2016 for making a 

criminal threat (§ 422). The court also found true four 

circumstances in aggravation under California Rules of Court, 

rule 4.421(a)(1), (a)(2), (b)(2), and (b)(3).

The trial court sentenced Zamora to an aggregate term of 

55 years to life. On count 1 for the attempted murder of Deputy 

Tobias, the court imposed an indeterminate term of 24 years to 

life, comprising the base term of seven years to life, doubled 

under the three strikes law (§§ 667, subds. (b)-(i), 1170.12, 

subd. (c)(1)), plus 10 years for the firearm enhancement. The 

court imposed a 26-year base term on count 9 for the rape of 

Cindy M., comprising the upper term of eight years doubled 

under the three strikes law, plus 10 years for the firearm 

enhancement.

7 The court imposed consecutive terms of two years 

on count 13 for dissuading a witness (one-third the middle term 

doubled); one year eight months on count 8 for attempted 

7 The abstract of judgment incorrectly states that the court 

imposed a 10-year enhancement for personal use of a firearm 

(§ 12022.5, subd. (a)) on count 7 instead of count 9. The trial 

court should correct the clerical error. (See People v. Mitchell

(2001) 26 Cal.4th 181, 185 [“Courts may correct clerical errors at 

any time, and appellate courts . . . have ordered correction of 

abstracts of judgment that did not accurately reflect the oral 

judgments of sentencing courts”]; People v. Gobert (2023) 

89 Cal.App.5th 676, 689 [same].)
12

carjacking (one-third the middle term of five years);

8 and one year 

four months on count 7 for possession of a firearm by a felon (onethird the middle term of two years doubled). The court stayed 

the sentences on the remaining counts pursuant to section 654. 

Zamora timely appealed.

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in Admitting 

Evidence of Zamora’s Gang Membership

1. Relevant proceedings 

The People in their trial brief requested an in limine 

determination of “[t]he relevancy of any testimony and evidence 

regarding the gang membership of [Zamora] and Cindy M. under 

an Evidence Code section 352 analysis.” The trial court ruled on 

the motion at the pretrial hearing: “Based on what the court’s 

heard thus far about telephone calls, jail calls how he identifies 

himself as Tone from a particular gang, the court’s going to admit 

this over defense objection. So that would be coming in, even 

though there’s not a gang allegation and there’s not any further 

punishment what have you for gang. But it will come in and 

jurors will hear about your gang affiliation, as well as the 

victim[’]s.” 

In his opening argument, the prosecutor read Zamora’s text 

message to Cindy stating, “‘[F]uck you and whoever you kick it 

with too. This is Tone from CVTF,’” and explained that Tone was 

8 The sentence on the attempted carjacking count was for 

one-half the term of imprisonment under section 664, 

subdivision (a), but it was then doubled under the three strikes 

law.
13

Zamora’s gang moniker and he was a member of the Compton 

Varrio Tortilla Flats gang. The prosecutor argued Cindy was

affiliated with gangs and knew other gang members, and 

Zamora’s messages after their breakup reflected that “he was 

constantly jealous and worried about being laughed at by his 

homies, by his fellow gang members [and] that Cindy was dating 

or hanging out with his fellow gang members.” 

Cindy testified she was not a member of the Compton 

Varrio Tortilla Flats gang and she did not know any of its 

members besides Zamora. But she testified she knew Zamora

was a member of the gang during their relationship. Tinoco 

likewise testified that Zamora told her he was a member of the 

gang. There were no other direct references to Zamora’s gang 

membership during the trial or in the closing arguments. 

However, the topic of Zamora’s “homies” and associates arose in 

multiple contexts: Cindy testified Zamora was fixated on the idea 

she had been having sex with his homies; Zamora threatened to 

kill her if she told his homies about the August 18 rape; and 

during the jailhouse call Cindy told Zamora she believed he 

“brought the nigga around who’s trying to kill me and shit,” in an 

apparent reference to one an associate of Zamora with the 

nickname “Gismo.” 

 

2. Governing law

Zamora contends the trial court erred in admitting 

evidence of his gang membership because the evidence was 

substantially more prejudicial than probative under Evidence 

Code section 352. Evidence Code section 352 provides, “The court 

in its discretion may exclude evidence if its probative value is 

substantially outweighed by the probability that its admission 
14

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.” (Accord, People v. Holmes, McClain and 

Newborn (2022) 12 Cal.5th 719, 771; People v. Chhoun (2021) 

11 Cal.5th 1, 26 (Chhoun).) “‘[T]he prejudice which exclusion of 

evidence under Evidence Code section 352 is designed to avoid is 

not the prejudice or damage to a defense that naturally flows 

from relevant, highly probative evidence. “[A]ll evidence which 

tends to prove guilt is prejudicial or damaging to the defendant’s 

case. The stronger the evidence, the more it is ‘prejudicial.’ The 

‘prejudice’ referred to in Evidence Code section 352 applies to 

evidence which uniquely tends to evoke an emotional bias against 

the defendant as an individual and which has very little effect on 

the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord, 

People v. Bell (2019) 7 Cal.5th 70, 105 [“‘“Evidence is not 

prejudicial, as that term is used in [an Evidence Code] 

section 352 context, merely because it undermines the opponent’s 

position or shores up that of the proponent.”’”].) 

“The People are generally entitled to introduce evidence of 

a defendant’s gang affiliation and activity if it is relevant to the 

charged offense.” (Chhoun, supra, 11 Cal.5th at p. 31; accord, 

People v. McKinnon (2011) 52 Cal.4th 610, 655 (McKinnon).) 

“‘Evidence of the defendant’s gang affiliation . . . can help prove 

identity, motive, modus operandi, specific intent, means of 

applying force or fear, or other issues pertinent to guilt of the 

charged crime.’” (Chhoun, at p. 31; accord, People v. Becerrada

(2017) 2 Cal.5th 1009, 1022; People v. Hernandez (2004) 

33 Cal.4th 1040, 1049 (Hernandez).) “Even when it is relevant, 

however, ‘courts should carefully scrutinize evidence of a 

defendant’s gang membership because such evidence “creates a 
15

risk the jury will improperly infer the defendant has a criminal 

disposition and is therefore guilty of the offense charged.”’” 

(Chhoun, at p. 31; accord, People v. Melendez (2016) 2 Cal.5th 1, 

28-29; see Hernandez, at p. 1049 [“In cases not involving the gang 

enhancement, we have held that evidence of gang membership is 

potentially prejudicial and should not be admitted if its probative 

value is minimal.”].) 

“On appeal, we review for abuse of discretion a trial court’s 

ruling on whether the evidence is relevant, not unduly 

prejudicial, and thus admissible.” (McKinnon, supra,

52 Cal.4th at p. 655.) “‘[T]he trial court is vested with wide 

discretion in determining relevance and in weighing the 

prejudicial effect of proffered evidence against its probative value. 

Its rulings will not be overturned on appeal absent an abuse of 

that discretion.’” (People v. Hardy (2018) 5 Cal.5th 56, 87; accord, 

People v. Williams (2008) 43 Cal.4th 584, 634-635 [“a trial court’s 

discretionary ruling under [Evid. Code, § 352] ‘“must not be 

disturbed on appeal except on a showing that the court exercised 

its discretion in an arbitrary, capricious or patently absurd 

manner that resulted in a manifest miscarriage of justice”’”].) 

3. The trial court did not abuse its discretion in finding

any prejudicial effect of Zamora’s gang membership 

did not substantially outweigh its probative value 

Zamora contends the probative value of the evidence he 

was a member of the Compton Varrio Tortilla Flats gang was 

“minimal at best” and limited to whether Zamora committed the 

offenses of making a criminal threat and dissuading a witness. 

Further, he argues, Cindy’s testimony that Zamora threatened to 

kill her and she feared for her life was based on his words and 
16

behavior, not his gang affiliation. Zamora’s gang membership 

was probative of multiple issues, and the trial court did not abuse 

its discretion in admitting it.

The trial court allowed evidence of Zamora’s gang 

membership based on the fact Zamora identified himself as “Tone 

from CVTF” in a text message threatening Cindy around the time 

of their breakup. Zamora’s identification as a gang member was 

therefore central to the nature of this threat and its effect on 

Cindy. In addition, Zamora referred to his homies and used 

nicknames for other associates in his messages and calls with

Cindy. And, as defense counsel acknowledged in his questioning 

of Cindy, during the jailhouse call Zamora asked her to try “to get 

ahold of different people, to Chuco and Smalls and et cetera,” to 

help Zamora from outside the jail. 

Moreover, the central theory of the prosecution case was 

that Zamora was fixated on his belief Cindy was cheating on him 

with his gang associates and they were laughing at him behind 

his back, enraging Zamora and motivating him to hurt and 

humiliate Cindy. This theory was supported by Zamora’s

accusatory messages around the time of their breakup, his threat 

during the rape that he would kill her if she told the police or his 

homies, and the jailhouse call in which he continued to focus on 

whether she was having a sexual relationship with “Gismo” and 

other associates. Cindy’s (and Tinoco’s) brief testimony that 

Zamora identified himself as a member of Compton Varrio 

Tortilla Flats gang with the moniker “Tone” was essential context 

for this evidence, which in turn was critical to establishing 

Cindy’s credibility, Zamora’s motive, and the circumstances in 

which he committed the rape and other offenses against her. 

(See Chhoun, supra, 11 Cal.5th 1 at pp. 31-32 [court did not 
17

abuse its discretion admitting evidence of defendant’s gang 

affiliation and other gang evidence in robbery-murder case to 

explain defendants’ relationship with accomplices, his identity as 

one of the perpetrators, his role during the orchestrated robbery, 

and his motive]; McKinnon, supra, 52 Cal.4th at p. 655 [trial 

court did not abuse its discretion in admitting gang evidence to 

show defendant’s motive for shooting victim was to retaliate for 

murder committed by rival gang]; People v. Brown (2003) 

31 Cal.4th 518, 547 [trial court did not abuse its discretion in 

admitting evidence that defendant took an oath on his gang when 

he shot the victim, which showed his statement that he shot the 

victim was truthful and not “mere bravado”].)

Evidence of Zamora’s gang affiliation was also relevant to 

prove Zamora was guilty of making a criminal threat. To prove 

the offense, the prosecution had to establish, among other 

elements, that Zamora’s threats caused Cindy to be in actual and 

reasonable sustained fear for her own safety and the safety of her 

family. (§ 422, subd. (a); In re George T. (2004) 33 Cal.4th 620, 

630.)9 The fact that Zamora was a gang member—and explicitly 

9 The jury was instructed with CALCRIM No. 1300, as 

follows: “To prove that the defendant is guilty of [criminal threat 

under section 422], the People must prove that: 1. The 

defendant willfully threatened to unlawfully kill or unlawfully 

cause great bodily injury to Cindy M.; [¶] 2. The defendant 

made the threat; [¶] 3. The defendant intended that statement 

be understood as a threat; [¶] 4. Under the circumstances, the 

threat was so clear, immediate, unconditional, and specific that it 

communicated to Cindy M. a serious intention and the immediate 

prospect that the threat would be carried out; [¶] 5. The threat 

actually caused Cindy M. to be in sustained fear for her own 
18

identified himself as a gang member in a message threatening 

her—was relevant to explain Cindy’s sustained fear for her own 

safety. (See People v. Hernandez, supra, 33 Cal.4th at p. 1053 

[“[g]ang testimony was relevant . . . to explain how [defendant’s] 

statement could induce fear in the victim”].) 

Zamora argues the gang evidence was cumulative because 

if the jury believed Cindy’s testimony, there was much stronger 

evidence that she was placed in sustained and reasonable fear 

based on Zamora’s repeated threats to kill her over several hours, 

his holding a gun to her head or in her mouth, and his erratic 

behavior. While this is compelling evidence, the proof relies 

entirely on the jury believing Cindy’s testimony at trial and that 

she truthfully reported the rape to the police and SART nurse. 

Evidence of Cindy’s fear beyond her own testimony was more 

limited, based principally on her actions, demeanor, and injuries 

on the morning of August 19. Although it is true Cindy testified 

she knew Zamora was a gang member while they were dating 

and she was not bothered by it, in the jailhouse call Cindy did not 

respond to Zamora’s inquiry as to where she was at the time,

10

and she stated her belief he sent an associate “who’s trying to kill 

me and shit.” 

Thus, although the evidence Zamora was a gang member 

may have been prejudicial, it helped to bolster the People’s case 

safety; and [¶] 6. Cindy M.’s fear was reasonable under the 

circumstances.” 

10 During the jail call Zamora asked, “Where are you at now? 

Where you at? Home or what?” Cindy responded, “Right now I’m 

in—don’t worry about where the fuck I’m at. What the fuck?” 
19

that otherwise depended heavily on Cindy’s testimony. Its 

probative value was therefore far from “‘minimal,’” and the trial 

court did not abuse its discretion in admitting it. (People v. 

Becerrada, supra, 2 Cal.5th at p. 1022; People v. Hernandez, 

supra, 33 Cal.4th at p. 1049.) 

B. The Trial Court Erred in Admitting All of Cindy’s Police 

Interview and Her Statements to the SART Nurse, but the 

Error Was Harmless

1. Relevant proceedings 

The People in their trial brief requested permission to 

introduce “[t]estimony and evidence regarding Cindy M.’s 

statement to deputies and the SART nurse under the ‘Fresh 

Complaint’ Doctrine[.]” At the pretrial hearing, defense counsel 

declined the trial court’s offer to present argument, stating “[j]ust 

objection,” and he did not request a limiting instruction. The 

court found, “[B]eing that it’s within hours of the allegations in 

this matter that [Cindy] went to the L.A. County Sheriff’s 

Department, spoke to deputies, I understand that there is body 

cam and her demeanor was that she was upset, possibly crying, 

exhibiting fear, and that she went directly to the police after she 

dropped her children off, did not shower, and went to a SART 

nurse and was then examined, the court’s going to find that this 

is relevant, and the prejudicial value does not outweigh the 

probative value. [¶] And so the court’s going to admit it as being 

relevant. And so that’s going to come in as a fresh 

[complaint] . . . . So the court’s going to admit the statements 

that she made to the deputies and the SART nurse.” 

As discussed, a video recording of an extended portion of 

Cindy’s August 19, 2021 interview with sheriff’s deputies was 
20

played for the jury, without redaction.11 In addition, Castillo 

testified with respect to Cindy’s statements during her physical 

examination on the afternoon of August 19, including details 

about Zamora’s threats and the unfolding of events on August 18.

Zamora’s attorney did not object at trial to the scope of the prior 

complaints evidence. The trial court instructed the jury with 

CALCRIM No. 318 that it could consider witness statements 

before trial “in two ways: to evaluate whether the witness’[s] 

testimony in court is believable; and as evidence that the 

information in earlier statements is true.” 

2. The fresh complaint doctrine

Under the fresh complaint doctrine, “proof of an 

extrajudicial complaint, made by the victim of a sexual offense, 

disclosing the alleged assault, may be admissible for a limited, 

nonhearsay purpose—namely, to establish the fact of, and the 

circumstances surrounding, the victim’s disclosure of the assault 

to others—whenever the fact that the disclosure was made and 

the circumstances under which it was made are relevant to the 

trier of fact’s determination as to whether the offense occurred.” 

(People v. Brown (1994) 8 Cal.4th 746, 749-750 (Brown); accord, 

People v. Manning (2008) 165 Cal.App.4th 870, 880 (Manning).) 

As the Supreme Court explained in Brown, evidence the 

victim made a complaint and the circumstances surrounding her 

disclosure are properly admissible because the evidence 

“frequently will help place the incident in context, and may assist 

the jury in arriving at a more reliable determination as to 

11 The record does not reflect that the video was redacted 

although, as noted, only a portion of the interview was played.
21

whether the offense occurred.” (Brown, supra, 8 Cal.4th at 

p. 760; accord, People v. Ramirez (2006) 143 Cal.App.4th 1512, 

1522 (Ramirez) [“Evidence admitted pursuant to this doctrine 

may be considered by the trier of fact for the purpose of 

corroborating the victim’s testimony, but not to prove the 

occurrence of the crime.”]; Manning, supra, 165 Cal.App.4th at 

p. 880 [same].) Such evidence may be relevant “[f]or a variety of 

nonhearsay purposes”; for example, “if such a victim did, in fact, 

make a complaint promptly after the alleged incident, the 

circumstances under which the complaint was made may aid the 

jury in determining whether the alleged offense occurred. 

Furthermore, admission of evidence that such a prompt 

complaint was made also will eliminate the risk that the jury, if 

not apprised of that fact, erroneously will infer that no such 

prompt complaint was made.” (Brown, at p. 761.) 

“[O]nly the fact that a complaint was made, and the 

circumstances surrounding its making, ordinarily are admissible; 

admission of evidence concerning details of the statements 

themselves, to prove the truth of the matter asserted, would 

violate the hearsay rule.” (Brown, supra, 8 Cal.4th at p. 760; see 

People v. Loy (2011) 52 Cal.4th 46, 55, 65-67 (Loy) [trial court 

erred in admitting evidence under the fresh complaint doctrine of 

statements made by victim of rape and murder to a friend that 

the defendant had previously touched her, although the error was 

harmless]; Ramirez, supra, 143 Cal.App.4th at p. 1522, 1526 

[trial court erred in admitting under the fresh complaint doctrine 

the victim’s statements to third parties that a man she met the 
22

prior night at a party raped her and dropped her off when his car 

got a flat tire, but the error was harmless].)12

3. The trial court erred in admitting Cindy’s prior 

complaints, and we decline to find forfeiture

Zamora contends the trial court erred in allowing the 

People to present evidence of Cindy’s complaints to the police and 

Castillo under the fresh complaint doctrine because the 

statements went far beyond the fact she made the complaints and 

the circumstances surrounding them. Further, the court 

instructed the jurors they could consider Cindy’s prior statements 

for their truth and failed to give a limiting instruction. 

We agree the trial court erred in allowing the jury to view 

an unredacted and extended video of Cindy’s interview with the 

LASD sheriffs and in allowing Castillo to recount all of Cindy’s 

statements during her SART examination. The court described 

the law correctly when it reasoned that Cindy’s demeanor in the 

prior complaints, including the fact she was upset, crying, and 

fearful, and the circumstances of her complaint, such as the fact 

she went directly to the police on the morning of August 19 

without showering, constituted admissible, relevant evidence 

under the fresh complaint doctrine to prove the rape and assault 

had occurred. (Brown, supra, 8 Cal.4th at p. 760 [“evidence of the 

circumstances surrounding a victim’s reporting or disclosure of 

12 In Loy, supra, 52 Cal.4th 46 and Ramirez, supra, 

143 Cal.App.4th 1512, the courts also rejected the People’s 

argument the statements were admissible as spontaneous 

statements. The People in this case do not argue Cindy’s hearsay 

statements were admissible under any hearsay exception.
23

an alleged crime clearly falls within the bounds of ‘relevant 

evidence’”].) 

However, the evidence the trial court allowed in granting 

the prosecutor’s in limine motion went beyond the fact and 

circumstances of Cindy’s complaints. During the police interview 

played for the jury, Cindy gave a detailed account of the events 

that occurred in Zamora’s motel room on August 18, 2021, 

including that Zamora produced a gun from under the mattress, 

told Cindy he would kill her if she did not undress, cocked the 

gun before holding it in her mouth, stopped several times during 

the rape to pace around the room “because he realized that [it] 

was rape,” told Cindy he would kill her if she said anything to his 

homies or the police, and may have acted “all weird” because he 

was on drugs. Similarly, Castillo’s testimony was not limited to 

Cindy’s injuries, appearance, and demeanor during the 

examination, nor the necessary context to explain the scope of 

Castillo’s forensic examination. Instead, the prosecutor elicited 

Castillo’s testimony that Cindy reported Zamora was a 

“boyfriend” who told her he was going to “put her in a dog cage”; 

told her during the rape he had “no choice but to finish what he 

started”; and was using crystal methamphetamine. Admission of 

these details served no cognizable non-hearsay purpose. (Brown, 

supra, 8 Cal.4th at p. 760-761; see Loy, supra, 52 Cal.4th at p. 65; 

Ramirez, supra, 143 Cal.App.4th at p. 1522.)

In their respondent’s brief, the People do not substantially 

dispute that admission of Cindy’s prior complaints was error. 

They argue instead that Zamora forfeited the issue because his 

attorney did not seek to narrow or redact the prior complaints 

evidence, and further, he failed to request a limiting instruction. 

The People are correct that a defendant’s bare objection to 
24

evidence generally is inadequate to preserve the objection on 

appeal. (See People v. Partida (2005) 37 Cal.4th 428, 433-434

[“‘we have consistently held that the “defendant’s failure to make 

a timely and specific objection” on the ground asserted on appeal 

makes that ground not cognizable’”]; id. at p. 434 [“[A] specifically 

grounded objection to a defined body of evidence serves to prevent 

error. It allows the trial judge to consider excluding the evidence 

or limiting its admission to avoid possible prejudice. It also 

allows the proponent of the evidence to lay additional foundation, 

modify the offer of proof, or take other steps designed to minimize 

the prospect of reversal.”].) Likewise, a limiting instruction is 

only required if it is requested. (See Manning, supra, 

165 Cal.App.4th at p. 880 [“On request, the trial court must 

instruct the jury as to the limited purpose for which the fresh 

complaint evidence was admitted. [Citation.] However, the trial 

court has no duty to give such an instruction in the absence of a 

request.”’].) 

However, “application of the forfeiture rule is not 

automatic.” (In re S.B. (2004) 32 Cal.4th 1287, 1293; accord, 

Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 215.) The 

People’s trial brief properly relied on Brown, supra, 8 Cal.4th at 

page 760 with respect to application of the fresh complaint 

doctrine (limiting the scope of the admissible evidence), and it 

may not have been clear to Zamora’s attorney until the trial court 

made its ruling that the court would fail to distinguish between 

the admissible testimony (of the fact of the complaint and 

circumstances) and the inadmissible details of the complaint. 

Moreover, in light of the extensive details in Cindy’s prior 

complaints presented at trial, it is unlikely a limiting instruction 

would have been adequate to prevent the jury from considering 
25

improper hearsay. (Brown, at p. 763 [“if the details of the 

victim’s extrajudicial complaint are admitted into evidence, even 

with a proper limiting instruction, a jury may well find it difficult 

not to view these details as tending to prove the truth of the 

underlying charge of sexual assault [citation], thereby converting 

the victim’s statement into a hearsay assertion”].) We therefore 

decline to find forfeiture.

4. Admission of Cindy’s statements was harmless

Although we find the trial court erred in admitting the 

details of Cindy’s prior complaints, we agree with the People the 

error was harmless. We will not reverse a judgment for the 

improper admission of hearsay unless it is reasonably probable 

that a result more favorable to the defendant would have been 

reached in the absence of the error under the standard 

enunciated in People v. Watson (1956) 46 Cal.2d 818. (People v. 

Valencia (2021) 11 Cal.5th 818, 840; Loy, supra, 52 Cal.4th at 

p. 67; Ramirez, supra, 143 Cal.App.4th at p. 1526.) There is no 

reasonable probability Zamora would have received a more 

favorable result if the hearsay statements in Cindy’s complaints 

to the police and to Castillo had been excluded.

Cindy testified at length about the assault and rape and 

the surrounding circumstances, including her relationship with 

Zamora and how she voluntarily went to the motel on August 18. 

She testified that once she went inside the motel room he hit her, 

called her names, threatened to lock her in a dog cage, tried to 

force her to ingest crystal methamphetamine, produced a gun, 

put it in her mouth, and threatened to kill her if she did not 

cooperate. Further, she described how during the rape he 

repeatedly stopped to pace around the room, ranting about 
26

needing to kill her, and when he allowed her to leave to see her 

children, he pointed a gun at her on the ride home and again 

threatened to kill her if she said anything to his homies or the 

police. With the single exception of Cindy’s statement to the 

sheriff’s deputies that Zamora’s gun was cocked when he put it in 

her mouth, the details in Cindy’s prior complaints were 

cumulative of her much more detailed trial testimony. The jury 

did not have to rely on any hearsay statement in the complaints 

to determine if and how Zamora raped, assaulted, and criminally 

threatened Cindy. 

Zamora argues the trial court’s error was not harmless 

because “[g]iven Cindy’s credibility issues, the corroborating, 

largely, consistent reports she gave the day after the events 

impermissibly bolstered her believability in the jury’s eyes.” 

However, the jury had the opportunity to evaluate Cindy’s 

credibility at trial, and defense counsel cross-examined her about 

the inconsistencies in her story and her motive to lie about a 

consensual encounter.13 The prosecution also presented ample 

evidence to support her account separate from Cindy’s prior 

complaints, including Zamora’s threatening text messages and 

the jail call in which Zamora admitted he “slapped [Cindy] 

around” and, when she accused him of holding a gun in her 

mouth and trying to kill her, he responded only with “I don’t 

13 For example, defense counsel impeached Cindy’s testimony 

that Zamora had promised to pay her back with money he owed 

her if she came to the motel on August 18 with her testimony at 

the preliminary hearing that Zamora had offered her a gift of 

money and there was no debt.
27

want to talk about none of that right now on this” and “I’ll 

apologize for slapping you around if you want to hear.” Zamora’s 

text messages and statements on the jail call also established 

Zamora’s motivating jealousy and undermined the defense theory 

that Cindy was a prostitute who was lying about having a dating 

relationship with Zamora. The jury heard Tinoco’s account of 

domestic abuse during her marriage with Zamora, which 

included striking Tinoco in front of their young child and an 

implied threat of gun and gang violence,14 and the jury heard 

about Zamora’s attempts to shoot Deputy Tobias on August 19. 

Finally, consistent with the fresh complaint doctrine, the jury 

could consider the circumstances of Cindy’s prior complaints, 

including the fact she went to two police stations without 

showering within hours after Zamora raped her to report the 

crime, and the jury properly relied on Cindy’s appearance and 

demeanor on the police interview video, and Castillo’s 

observations about how Cindy looked and acted, to make a “more 

reliable determination as to whether the offense occurred.” 

(Brown, supra, 8 Cal.4th at p. 760.)

14 The trial court allowed Tinoco to testify about Zamora’s 

domestic abuse as propensity evidence under Evidence Code 

section 1109. Zamora does not challenge this ruling on appeal.
28

DISPOSITION

The judgment is affirmed. The trial court is directed to 

correct the abstract of judgment to reflect that the court imposed 

a 10-year sentence enhancement for personal use of a firearm 

(§ 12022.5, subd. (a)) on count 9 for forcible rape (§ 261,

subd. (a)(2)) and not on count 7 for possession of a firearm by a 

felon (§ 29800), and to send a corrected abstract of judgment to 

the Department of Corrections and Rehabilitation.

FEUER, J.

We concur:

MARTINEZ, P. J.

RAPHAEL, J.*

* Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.