Filed 6/24/21 P. v. Sanchez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY JOSU E SANCHEZ,

Defendant and Appellant. B302549

Los Angeles County Super. Ct. No. BA447545

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on May 2 8 , 202 1 , be
modified as follows:

1. On page 18 , the second sentence of the third full paragraph i s deleted, and the following is inserted in its place:

“ The only lunch period during deliberations would have been the next day, Thursday.”
2. On page 24 , the second fu ll sentence at the top of the

page is deleted, and the following is inserted in its place:2

“We do not second

- guess the trial court’s conclusion that Juror
No. 2 was credible when she testified under oath that none of the alternate’s statements came up in t he jury room. ”
3. On page 24
, the third sentence from the end of the first paragraph is deleted , and the following is inserted in its place: “Defense counsel urged the trial court to “rely on its gut, experience” despite the jurors’ testimony they did no t have improper conversations. ”

4. On page 28
, the first sentence of the l ast paragraph is deleted, and the following is inserted in its place: “Sanchez has not demonstrated prejudice to his full ability to defend against the murder and attempted murder c harges
of which he already had been convicted. ”

There is no change in the judgment.

Appellant’s petition for rehearing, filed on June 1 4 , 20 21 , is
denied.

____________________________________________________________ EGERTON, J. LAVIN

, A cting P. J. ADAMS , J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 5/28/21 P. v. Sanchez CA2/3 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifi ed 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 THREE

THE PEOPLE,

Plaintiff and Responde nt,

v.

JOHNNY JOSU E SANCHEZ,

Defendant and Appellant. B302549

Los Angeles County Super. Ct. No. BA447545

APPEAL from a judgment of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Affirmed.

C. Matthew Missakian, under appoint ment by the Court
of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General

, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stephanie A. Miyoshi and David A. Wildman, Deputy Attorneys General, for Plaintif f and Respondent.

_________________________2 A jury convicted Johnny Josue Sa nchez of five counts of special circumstance murder and two counts of willful, deliberate, and premedit ated attempted murder, after a deadly fire in the
aban doned building where Sanchez and others lived. He appeals, arguing prejudicial juror misconduct, a violation of his right to
be present, the improper exclusion and admission of evidence, insufficient evidence of a “kill zone,” an improper “kil l zone”
inst ruction , and prosecut orial misconduct . We affirm

. BACKGROUND An information charged Sanchez with f ive counts of
murder : DeAndre Mitchell (count 1); Jerry Dean Clemons (count 2); Mary Ann Davis (count 3); Joseph Proenneke (count 4); and Tierra Stansberry (count 5) (Pen. Code , § 187, subd. (a) 1 ).
All fi ve murder counts alleged the special circumstance s that Sanchez committed multiple murders

, while engaged
in committing arson. (§ 190.2, subd s . (a) (3), (a) (17).) The information also charged Sanchez with the attempted, willfu l,
deliberate

, and premeditated murder of Anthony Roberts (count 6) and Robert Fernandez (count 7) (§ 664/187, subd. (a)).

1. Prosecution case

a. Fire department and law enforcement testimony In early June 2016, Assistant Chief Jaime Moore of the City of Los Angeles Fire Department (LAFD) met with the owner
of a n abandoned building at 2411 West Eighth Street , to discuss the homeless people living inside . All utilities were shut off and the owner awaited city permission to tear the bu ilding down.
When C hief Moore returned on June 13

, the building

was on fire. Two fire trucks and three fire engines responded,

1 All statutory references are to the Penal Code.3

three aerial ladders went to the roof, firefighting lines sent pumped water into the building, and firefighters used a wooden ladder to rescue peop le from second

- story windows in the alley

. Almost immediately, firefighters found a dead body in the second

floor hallway

. A woman pulled on Chief Moore’s coat and told
him her friends were still inside. He stayed for almost 24 hour s, and the next day s peciali zed K

- 9 dogs found more bodies.
Chief Moore did not worry that homeless people living
in the building would start a fire by smoking or using candles,
but he was concerned they would get hurt in the unsafe interior.
He was not aware of data showing homeless people were more
li kely to start accidental fires.
LAFD Captain David Lindsay and his company responded
to the scene ar ound dinnertime. F ire and smoke were coming

out of windows on the alley side of the building , and people in
the alley and in the upstairs windows were screaming for help. Firefighters forc ed the front doors open, and Lindsay’s company went inside and saw fire on the concrete stairs to the second floor.
Because concrete does not bur n, he believed something was on the stairs to burn, and this was not an accidental fire. They put out the stair fire and went upstairs

, where an enormous fire

was free

- burning in the hallway. The floor was extremely hot. They found a body in the hallway but had to keep fighting the
fire while two f

irefighters dragged the body back. They could

not get far because the fire was so hot, and the tanks on their breathing apparatus began to run out of air. A security door
had been blown off its hinges, perhaps by a rapid rise of heat causing a “flashover

, ” when smoke itse lf lights up and explodes. The fire moved quickly through the building . I t took
three hours to put it out. A fast

- moving fire could be caused4

by deliberately starting fires in multiple locat ions, and by using
accel erants. LAFD Captain Mark Soto was on a fire engine that responded to the fire just after 7:00 p.m. Smoke was coming

out of the front and alley sides of the second floor

. As he entered with his team and hose, he saw fire on the concrete stairs,
which wa s unusual because the re was not much to burn. A
male Hispanic with short hair wearing jean shorts and no shirt was inside. Captain S oto told him to leave the building, but he turned away and walked back inside

. The y took two water lines up the stairs, b ut the second

floor f ire was too big , and they h ad to back out of one room
because of the inten se heat. They pulled out when the incident
commander sent in heavier streams

. T he firefighters gave up

on saving the building, pulled everyone ou t, and went in to defensive mode to prot ect surrounding structures. A firefighter saw people in the alley pointing up at someone yelling from a second

- floor window on the alley side. He put a 20

- fo ot extendable ladder up to the window

, broke the glass, and helped a B l ack woman and a Hispa nic man down. S omeone else yelled his brother was in another room in the back, and the firefighter saw a hand hanging out of the window between security ba rs. He put the ladder up to that window, and another firefighter climbed up an d cut the bars with a rotary saw

. When t he second firefighter learned someone was trapped
in a window on the second floor , he ran past two Hispanic men fighting in the alley, went up the ladder to the window

, used
the saw to cut the bars , and helped the m an out. The man had cut his arm on some metal and nearly p assed out . The firefighter
carried him down and dragged him to the street corner. When5

h e went back inside and up the stairs to help pull hose, other firefighters handed him a dead body too badly charred to bring

out into the street. He left the bo dy at the bottom of the stairs.
A Los Angeles Police Department (LAPD) o fficer arrived

at the scene , and Nivea and Flaco 2 pointed at Sanchez, who
had a shirt wr apped around his nose and mouth. Nivea s aid :

“ ‘That’s the g uy who started the fire. That’s the guy

, ’ ” and
she said Sanchez had threatened to jump her. Sanchez , with lacerations on his face, was standing in the mouth of the alley

. His fists were clenched and he was swa ying back and forth. Looking at the office r, he threw his shirt on the ground. She
handcuffed him and he was placed under arrest. A large

gas lighter you could buy at a smoke shop and a pipe were
in his pocket. The next morning, firefighters entered the burned

- out building with cadaver dogs , wh o alerted to a spot in an upstairs
room secured from the inside. The bodies of Clemons, Davis, Proenneke, and Stansberry lay under three to four feet of debris.
The four victims were huddled together as if asleep

, on blankets
and a s leeping bag stacked o n a tarp. The medical examiner testified Proenneke had burns on 15 percent of his body, and
he died from the burns, carbon monoxide poisoning, and smoke
inhalation. Clemons had burns on most of his back, and died
of carbon monoxide p oisoning, smoke inhal ation, and burns.
Davis died of burns and smoke inhalation. Stansberry had

2 Nivea’s birthname was Anthony Roberts. She was transgender, preferred female pronouns, and called herself Nivea, which we use throughout. Flaco was Robert Fernandez’s street

name. Nivea and F laco were the alleged victims of the attempted murders charged in counts 6 and 7.6

burns on 33 percent of her body, and died of carbon monoxide poisoning and smoke inhalation. The fifth victim, DeAndre Mitchell, had the most severe burns, g oing through the skin into muscle and bone. He died of
his burns and smoke inhalation

. LAFD a rson investigator Lance Jimenez first arrived at 9:30 p.m. on the evening of the fire. He surveyed the outside
of the building and came back early the next morn ing when
the light wa s better and the fire was completely out. Mitchell’s body was still in the lobby by the stairs . F irefighters wrapped the body in a sheet and moved it outside for the coroner

. The building’s roof had collapsed and there were severe
b urn patterns above th e windows on the alley side. When the windows were broken, oxygen would rush inside and increase
the interior fire. Jimenez went in through the garage and saw the power lines had been cut. The fire had started on the second
floor an d worked its way down the stairs and out through the
roof , and had been most severe on th e alley side of the building.
Jimenez saw a very severe burn pattern in the second

- floor hallway

, alerting him the fire may have started there. T he front
corner of t he upstairs exterior facing Eighth Street and the alley had similarly heavy fire damage. He believed two separate fire s had started in the second

- story hall and then moved into the

rooms. Jimenez looked for anything that could have s tarted or
accelerated the blaze s , eliminat ing an electrical cause because
the power was out . He found no candles or candle wax , b u r nt cigarettes, or c ooking devices. N othing showed the fires were natural or accidental . H is opinion was th e fire was incendiary

, with two separ ate fires intentional ly set at the same time.7

Someon e took an open flame to available combustibles, and
the fires burned rapidly. A K

- 9 detected no accelerants such as

g asoline or lighter fluid, and Jimenez found no gas cans. T rash throughout the buildi ng could ignite and f eed the fire, and some of the trash might have been piled up before being set on fire.
On cross

- examination, defense counsel asked Jimenez if

a red bottle appearing in a photograph of the first

- floor landing

c ould be a can of gasoline . Jimenez responded he had no idea.
b. Building residents and eyewitnesses
i. Nivea
Nivea testified about 10 pe o ple lived in the building off
and on, including Sanchez, Mitchell (whose nickname was Jokerface) , a homeless couple , and Jared Muse. Other p eople came to party or hang out, and Nivea had spent the night in
the building

. Sanchez was always there . He stayed in one of
the former offices on the second floor. A month before the fire

, Nivea asked Sanchez’s girlfriend if she wanted to smoke meth

, and Sanchez slapped his girlfriend in the f ace. After that, Sanchez was always hostile to Nivea and would tell her to

ge t the fuck out of the building. On the day of the fire, Nivea arrived at the building
before sundown. She came in through the only entry, a hole in
the carport gate, and walked up the front steps. Once inside, she entered one of the rooms and walked through a hole in the wall into a dark room, where she saw Sanchez. A file cabinet b locked
the door on the other side of the room and s he asked him to

move it. In Spanish and broken English, he yelled at her to

go back the way she came, and threatened to chop her up with

a machete. Nivea hit him on the forehead with a small flashlight

, and Sanchez threw a punch. S he sprayed him with Ma ce and8

he started to yell and scream. She picked up what she thought was her phone (but picked up Sanchez’s phone by mistake), moved the file cabinet, and walked thr ough the door into
the hallway. Nivea’s friend Flaco was in the hallway. He asked her
wh at was happening, and she told him she had fought with Sanchez. They went into Flaco’s room next door , and he closed
and locked the wooden and screen doors. There w as a pile of trash two feet high out in the hall in front of the door. Nivea
could hear S anchez outside the ro om screaming he was going

to kill her, and it sounded like he was throwing m etal file
cabinet drawers

. Nivea and Flaco talked for some time, while Sanchez kept screaming

. Sanchez stopped , and a minute or two later, Nivea
walked over to the window and saw a crowd of people across
the street, filming the building with their cel l phones and tablets.
S moke was coming from the top of the building . She told Flaco
it looked like the building was on fire. He opened the door to
the hall , bu t the trash pile righ t outside the door was in flames
and blocked their exit. A friend in the alley called “ Bum ” threw

a fire extinguisher up to Flaco, but it was empty. After t he fire department sawed the bars on the window, Nivea and Flaco escaped down the ladder

. Sanchez stood in the middle of the alley. Nivea pointed

at him and yelled : “ ‘ H e did it. ’ ” Her friends started to beat Sanchez up , and he ran back into the burning building. The
detectives had Nivea and Flaco sit on the curb . Nivea saw
Sanchez come back out of the building

, his shirt wrapped around
his nose and mouth

. Nivea told a police officer Sanchez started9

the fire, and the officer handcuffed him and put him in the back of a patrol car.

ii. Flaco
Flaco lived in a room in the bui lding for three month s. He had his own lo ck and a security system to prevent anyone from prying the lock open. Sanchez lived in the room next to his, and Nivea stayed in a room across the hall. Four people from
I owa and an African

- American also lived in the bui l ding.
On th e day of the fire, Flaco heard Sanchez and Nivea arguing in Spanish and English , throwing things, and fighting
for five to 10 minutes , because Sanchez wouldn’t let Nivea go through his room to get to her room. He opened hi s door when
Nivea came out and in vited her into his room, locking and bolting
the door. They talked f or about 15 minutes, while Sanchez
continued to threaten to kill Nivea and chop her up with a
machete. Nivea noticed people filming the building, and Flaco
looked ou t and saw s moke. Whe n h e opened his door , he saw smoke and flames coming from the pile of trash in the hall

. He closed the door and gathered his things

. T he firefighters broke the window and helped N ivea and Flaco down the ladder.
Once outside, Flaco c ould hear Muse scream ing from inside the building. Sanchez ca me out of the alley and walk ed toward
the street. When people pointed him out, Sanchez ran back into
the building. He came back out with his nose and mouth covered

, and was arrested

.

iii. Ja red Muse
Muse lived in the building for three to six months . H e shared with Jokerface (Mitchell) a large divided room on the second floor facing the alley

. Muse had seen Sanchez in the garage and once or twice inside a room

.10 On the day of th e fire, Mus e entered the buildin g around

sunset . H e and Mitchell were in the room with the door open
when t hey noticed smoke on the ceiling. Mitchell ran into the
hall and screamed , and s mok e started to fill the room

. Muse punched the window glass out , cutting his arm, and called for help . Firefighters sawed the bars off the window and brought
him down the ladder

. After Muse was rescued, he saw Sanche z leave the garage through the gate next to the alley and talk to the police

. Muse
sat on the curb with Flaco and Nivea before leaving in an ambulance. The cuts on his arm required stitches and staples.

iv. Paulina Mendez
Paulina M endez lived in a first

- floor apartment across the alley. At around 7:00 p.m. on the night of the fire, she
smelled smoke . She went i nto her dining room, looked out of
the open window facing the alley

, and saw the building on fire.
Sanchez was r unning back and forth and screaming . He stopped in front of her window, yelling : “ ‘There’ s somebody I don’t like.
I hope he burns. I hope he dies. ’ ” He told her if she talked he
would burn her house down too . He went back into the building and then quickly exited with his face covered

. Although she

was afraid, Mendez called 911 and identified Sanchez later

at the scene. She still was a f raid and reluctant to testify. Eight days after the fire, Mendez told LAPD Detective
Frank Car rillo she asked Sanchez who started the fire, a nd
Sanchez answered in Spanish: “ ‘ I did , because there’s a son of

a bitch over there, and I don’t like him, and that’s why I set it o n fire. ’ ” Sanchez added: “ ‘I’m going to burn your house down too, you old bitch,’ ” and walked toward the corner

. The jury heard
Mendez tell the 911 ope rator : “ [T] he guy who set the building11

on fire is a cholo. And right now sin ce I was telling my k ids
that he did it, he’s threatening me and he’s over there all calm. Because he said that he had to kill everyone who was inside
that building.”
The day after the fire

, two guys who looked like cholos came to her house looking for o ne of her sons. One of them said: “ ‘You know what happens to people who talk.’ ” Seven months before trial, she met with the prosecutor, and after that other

guys came to her door ask ing about her son, and men drove by yelling: “ ‘Rats, rats, rats die .’ ” A woman stopped by and asked
her whether she was the one who was going to testify. Mendez

was frightened

. Mendez had four sons: Jose, Julio, Byron, and Eddie.
Jose went by “Bum,” and Julio went by “Virus.” Bum and Virus
lived on the streets and came home now and the n to shower

or eat. Whe n Mendez saw the fire, she was worried because she
didn’t know where Virus was , but later she learned he was safe.
S he also noticed he r fire extinguishers were gone.
2. Defense case

a. Sanchez
Sanchez testifi ed in his own defense

. Six weeks before
the fire, he and his girlfriend argued in side the building . She slapped him, he pushed her back, and a B lack transgender person he called “Queen” (Nivea) got between them and told him not to push his girl friend. N ivea then asked if hi s girlfriend
wanted to smo ke meth, and Sanchez got upset. On the day of the fire, Sanchez was in a room in the building . One door was open, and the other was blocked with

a file cabinet. At 3:00 or 4:00 p.m., Nivea came in. He stop ped her from going th rough the blocked door

, and s he y elled at him,12

hit his left eye brow wi th a flashlight , and spray ed him with

pepper spray. He tried to fight back but his eyes burned. Nivea
went back out the open d oor and Sanchez ran out of the buildi ng

. He went to a liq uor store for ice but the bags were too big, so he bought ice cream and put it on his eyes. His left eyebrow was

cut and swollen

. At a nearby store, a man Sanchez knew named Jose gave
him a clean shirt , and he threw his bloody shirt in the trash

. A fter 15 to 20 minutes at the store he real ized he didn’t have
his phone , and went back to the building to find it. He walked through the back of the alley and s aw the building was on fire.
Mendez was standing at her window. She said she’ d seen him
there befo re, and asked if he had anything to do with the fire.
He said no, and suggested her sons ( who were homeless and stay ed in the building ) or someone else who lived there might
have started it. Mendez replied: “ ‘My son might be crazy,
but he’s not a dumba ss, ’ ” and s aid she was calling the police. Mendez commented on Sanchez’s cut eyebrow. H e explained he had fought with someone inside a half hour earlier, and “ ‘[i]f . . . that person is there in that place, I don’t really care.
Lo ok at what she did to me.’ ” Mendez answered: “ ‘Oh, so you
did it. ’ ” Sanchez denied starting the fire, and told Mendez that
if he wanted to hurt someone, he would use a gun. H e may have said something about “burning” Ni vea, but he meant with bullets.
Sanchez could hear people yelling in side the burning
build ing. Mendez pointed at him and said he started the fire.
T wo of her sons started to fight with him for disrespecting their
mother. Thinking a friend was inside, Sanchez went back into the
build ing

. To protect hims elf from the smoke he took of f his shirt13

to cover his face . F irefighters blocked him from the seco nd floor
and told him to leave. Outside near the alley , he threw his shirt down and started coughing. Nivea had been rescued

, and she pointed at him as if he had caused the fire. The police handcuffed, arrested, and searched him, finding his lighter and the pipe he used to smoke
weed. At the police station he met with Detective Car r illo,
his partner, and Jimenez, the arson investigator

. On cross

- examinati on, Sanchez claimed he was not homeless but sometimes stayed in the building. H e knew
Muse lived there but had never met Flaco. The building was
abandoned and full of trash , and people could use any room they
liked

. He wasn’t sure w hich room he was in t he night of the fire, but he didn’t like Nivea walking through. He argued and fought with her, but he never said he would chop her up with a machete.
When h e told Mendez he wanted to “burn” Nivea, he meant with
bullets.
H e left the building to go to the liquor store and get ice for his eyes, walking through the alley. He then went to Jose’s store

, asked for a clean shirt, and ate. He stayed for less than an hour and went back to the building to find his phone, again walking
down th e alley, where he tal ked to Mendez as she stood at her
window. He did not remember telling Detective C arrillo he was
in the building when the fire started.
b. Jose Cabrera Jose Cabrera testified he worked at a community food bank
about a block and a hal f from the building

. Between 3:00 and 3:30 p.m. on the day of the fire, Sanchez came to the store (food bank) wearing a shirt with a little blood on it, and Cabrera gave
him a free shirt. Sanchez ate and stayed at the food bank for14

three hours, leaving a round 6:00 or 6:30 p. m. A week before his testimony, Cabrera had trouble identifying Sanchez in a photo.

c. Jesse Delgado
Jesse Delgado was a civilian LAPD employee trained
in advanced interrogation techniques . When he interviewed Sanchez in custody th e day after the fire

, Sanchez consistently
de nied he started the fire.
3. Rebuttal A Los Angeles County sheriff’s deputy with bilingual Spanish certification interpreted during a June 15 , 2016
interview with Sanchez. Sanchez said he was in his second

- flo or room when someone told him there was a fire, they could smell the smoke, and they ne eded to evacuate. A fire on the right
of the stairs spread to his room , and he ran out through the heavy smoke. Sanchez denied he started the fire.
Detective Car rillo testified he obtaine d and watched

v ideo from a surveillance camera. The video showed the alley
and displayed a correct system date, but the time was off by
42 minutes. The footage captured images on the day of the fire from 1:15 p.m. to 4:00 p.m., and f rom 5:15 p.m. to 8:46 p.m. Although Sanchez had testified he walked through the alley when he left the building that afternoon to get ice for his eyes
and when he returned from Jose ’s store, he did not appear in any of the footage until after 7 :00 p.m., w hen a man wearing clo thing matching what Sanchez wore wal ked north in the alley, and shortly thereafter ran back southbound. The prosecution showed the jury two screenshots of the empty alley, and the defense showed the jury two screenshots of the man wal king in the alley,
bu t the video was not admitted into evidence.15 D uring two in terviews on June 14, Sanchez did not say that
he we nt to Jose ’s store, that he went back to the building to get his phone, or that he told Mendez he had nothing to do with the
f ire. Sanchez said Ni vea left the building, the fire started, and then he and others ran out of the building. He was angry that Nivea got out first. He blamed two of Mendez’s sons for the fire,
and then said Nivea started the fire. He thought it s tarted with gasoline.
4. Ve rdict and sentencing The jury convicted Sanchez on all seven counts and found true the special circumstances. After denying Sanchez’s motion for new trial, the court sentenced Sanchez to five concurrent
terms of life without the poss ibility of parole on the murder counts, and consecutive sentences of life imprisonment on each
of the two counts of attempted murder (Nivea and Flaco). The court also awarded custody credits and impose d restitution, fines,
and fees.
Sa nchez filed this ti mely appeal.

DISCUSSI ON

1. Juror misconduct does not require reversal

a. Post

- verdict proceedings After the jury convicted Sanchez on all counts, Sanchez filed a petition for an order disclosing juror information. D efense
counsel had learned an alternate juror (the alternate ) told two deputy district attorneys ( D As) sh e ate lunch with deliberating jurors . Counsel believed misconduct had occurred. In opposition, the prosecutor argued the petition was based on hearsay and did not show good cause to disclo se the information. The trial court denied the petition for disclosure without prejudice because it

was not supported by declarations

.16 S anc h ez filed a second pet ition, attaching an email from
D A Leslie Hinshaw stating the alternate was a civilian employe e of the sheriff’s de partment who provided security on the D A s ’
floor. DA Hinshaw knew the alternate had been on jury duty,
and when she saw her back at work and talking to D A Jan e Brownstone, she asked if the case was over and what kind of

case it was. The alternate replied it was a 2016 arson with five decedents, and the jury convicted, but : “ ‘Jurors are so retarded though. They’re so retarded. They were initially hung 7

- 5, and
I was like, “We need to all have lunch to gether.” ’ ” At lunch, she
tol d the other jurors ab out the kill zone and that Sanchez did it. The jurors went back to deliberating, hung 10

- 2, and finally
convicted. DA Hinshaw told the alternate she wished she had n’t shared that, and she and DA Brownstone walked away.
DA Brownstone ’s email confirmed th e alternate was assigned to t he security desk in her lobby. The alternate
volunteer ed the jury was “retarded,” was hung 5

- 7 or 7

- 5, and
said: “I was like we need to go to lunch and I explained to him how this guy basi cally created a kill zone.” DA Brown stone asked if the alternate had been sub stitut ed in to deliberate

. Wh en she answered she had not, the D As ended the conversat ion, believing the alternate might have inadvertently disclosed juro r misconduct.
The trial court found goo d cause to set a hear ing on the second petition, and se nt notice to all the jurors and alternate jurors

. At the initial hearing , the alternate testified she went to lunch with the other alternate jurors , but she did not re member going to lunch with other jurors. No juror eve r told her of a split, and she did not recall sharing that information with any DAs,

or saying the jury was “retarded” and she needed to go to lunch17

with them. She did not remember speaking to any deliberating jurors or to the D As

. D A Brownstone testifie d s he did not ask the alternate
how she knew t he jury was split. S he later spoke with her superior because she was concerned. DA Hi nshaw testified s he thought the alternate’s statement that she talked to other jurors
about the kill z one meant the alterna te told them Sanchez was guilty. Afterwards she told DA Brownstone the alternate juror “had potentially spoken to d eliberating jurors during trial ” at lunc h time , and then the jurors returned to deliberating. This was misconduct, so D A Brownstone alerted her supervisor.
The trial court stated it was not ready to rule whether
misconduct had occurred , but would only decide whether to
disclose juror identifying information

. The court could not tell
whether the alternate went to lunch or was exaggerating her
role in the conviction, bu t foun d the DAs were credible. “I cannot conclude that anything actually did happen, but I do find that

we need to determine whether or not anything happened.”
The court set a further hearing to question al l the jurors.
b. Jur or testimony On July 19, 2019, t h e trial court questioned six jurors under oath one by one , outside the presence of the others

. Sanchez had been tased after getting into a fight downstairs,
and was not present. All six jurors testif ied they did not

reme mber having lunch with the alternate or any other contact during deliberations, did not discuss the case outside the jury

room , and did not know of another juror who did so. The court held another hearing a month later with all
but on e of t he remaining ju rors . Sanchez was present

. Four jurors testified they had no contact with the alternate during18

deliberations, and knew of no other jurors who had contact with the alternate or discussed the case outside the jury r oom. Juror No. 2 ha d been an alternate j uror (No. 36) and

was substituted onto the regular panel during trial. After
deliberations began

, she continued to have lunch with the two remaining alternate jurors at the park or the farmer’s market. A group of three to five jurors had always gather ed to go
to lunch and talk. Before deliberations bega n, they went to the farmer’s market , where the alternate was adamant that Sanchez was “guilty, guilty, guilty.” “It was like her mind was made up.” Asked if this continued during d el iberations, Juror No. 2 replied: “I think so. I mean, I don’t

— you know. I just ki nd of kept my
distance with her. ” T he alternate was “chitchatting ” and saying : “ ‘ [t] his is a waste of time, ’ ” and “ ‘[h] e’s guilty. ’ ” The alternate
said things like : “ ‘I’m in the buildi ng.’ ‘I know.’ ‘I know.’ ”
It could have been on a Thursday before deliberations began ; Juror No. 2 could not remember. The prosecutor point ed out closing argument ended on Wednesday before lunch

, and deliberations began after lunc h. The only lunch pe riod during deliberations would have been the next day, Thursday, and at 1:31 p.m. that day the jury buzzed that they had reached a verdict. Juror No. 2 testified she could not remember whether they went to lunch at the farmer’s marke t on the Thursday dur ing deliberations. “I’m not 100 percent.
It wouldn’t surprise me if it was. Do you know what I mean?
I’m not going to say 100 percent yes. It’s like 60 percent yes,
40 percent n o.” Asked again if they had lunch together after
del iberations began, the juror said: “I wouldn’t be surprised.
Put it that way.” Juror No. 2 continued : “I don’t know. I mean, I’m not 100 percent sure. Just based on her personality how19

she was all the time, it was just set in stone. I mean, it could have come up.” Juror No. 2 did not remember whether the earlier vote splits (which taper ed over time toward guilty)
had been discussed during a lunch with the alternate pres ent. The jurors who held out for innocence were not at the lunch

. Th e alternat e never discussed spe cific facts or theories

, such as the “kill zone.” She would just plop herself down and

say this was ridiculous and a waste of time, because “ ‘ [ h ] e’s guilty already.’ ” The alternate’s views did not in any way
affect Juror No. 2 ’s de liberations or come u p in the jury room

. Juror No. 31, the other alternate juror, testified he had
lunch with four or five jurors , including Juror No. 2 and the alternate, on the Thursday after deliberations began

. The jurors talked about how many more d ays they had to be th ere. Juror
No. 31 heard nothing about a numerical split and did not hear the alternate give her opinion . When Juror No. 31 and the
alternate were on their own on Wednesday before deliberations began, the alternate said she would find Sanchez guilty , but said nothing specific about the case . The alternate never mentioned talking to the deliberating jurors. Juror No. 31 never heard anything about how the votes were going. The last juror testified on September 12, 2019

, with Sanchez p resent. The juror ha d no contact with the alternate jurors once deliberations began, knew of no deliberating jurors having suc h contact with alternate jurors, heard no deliberating juror say they had discussed the case during the trial with anyone outside the jury, and heard no new information about
the kill zone.20 c. Motion for new trial Sanchez filed a motion for new trial, argui ng the alternate
knew about the vote splits , and must have gotten the information from “a deliberating juror who broke his/her oath.” As no juror admitted to disclosing the information, “the jurors are lying to the court. Lying about ‘the lunch,’ lying about revealing how they were divided, lying about their inappropriate conversations
outside of the deliberation room about the ories, evide nce, and their opinions.” The D As were reliable, and the alternate lied
when she said she did not rememb er telling the D A s about
the deliberations. Juror misconduct included the alternate’s
interaction wi th the deliberating jurors; the d elibe rating jurors sharing information about the vote split s and theories of liability; and the alternate’s use of her “elevated status” protecting prosecutors to intimidate and influence the other jurors. The easy way out would be to believe the jurors ’ sworn testimony they had n ot heard anything from an outside source or relayed information about deliberations. But something improper
occurred a nd the jury was covering it up. In opposition, the prosecution argued there was no competent evidence of ju ror misc onduct. While the co ntent of the alternate’s statements was admissible to show overt misconduct, under Evidence Code section 1150, subdivision (a)

, the statements were not admissible to show an effect on the jurors’ subjective mental processes. If the co urt decided the

state ments were misconduct

, any presumption of prejudice

was rebutted as there was no showing the jury discussed the
alternate’s statements in the jury room. Sanchez waived his presence at the hearing on the new trial motion. His counsel argued the alternate must have learned21

about the vote split sometime between Wednesday afternoon and
lunchtime on Thursday . Al though the alternate and the jurors testified under oath they did not talk about the split, the trial
court should “rely on its g ut, experience” despi te the jurors’ “complete denial s ” that they had improper conversations with

or were influenced by the alternate. The alternate was in a position of authority and the other jurors could believe she had
inside information

. The prosecut ion had th e burden to prove that the alternate did not get the information about the vote split from the deliberating jurors.
The prosecutor argued that, even taking as true the DAs’ testimony about their conversation with the alternate, what th e alternat e described to the DA s was inconsistent with the jurors’ sworn testimony. The jurors had not been split 10

- 2 until after lunch on Thursday, so if the alternate had inside information
about the deliberations , it came from a conversation after the
verdict. Only Juror No. 2 tes tified she heard the alternate’s opinion s , and she denied ever discussing those opinions during deliberations. No prejudice occurred, because it

was not s ubstantial ly like ly on e or more deliberating jurors

was actually biased against Sanchez

. The trial c ourt found the alternate committed misconduct when during the trial she repeatedly insisted Sanchez was guilty. The court had repeatedly instructed the jury not to form or express an opinion.
B ut the extent of the misconduct, and its impact, were

a diffe rent issue. The jury started deliberations after lunch on Wednesday , sent a note at the end of the day, and were released
at 4:15 p.m . The jurors returned Thursday morn ing to resume
deliberations. At 10:45 a.m. they heard the readba ck they had22

requested

. The readback ended at 10:56 a.m. and they resumed
deliberations. At 11:40 a.m. , they submitted a second question and broke for the noon hour. They returned at 1:41 p.m. and heard a second readback. At 1:42 p.m. they resumed
delib erations, and at 2:06 p.m. they reached a verdict. It was not clear whether the alternate accurately described the vote split. None of the jurors testifie d they discussed any split with the alternate . T hey would have had very little time

or opportunity to do so. There was n o evidence of communication such as texts between the jury and the alternate. The jurors testified they did not discuss any of the alternate’s opinions during deliberations

. The only deliberating juror who testified the alternate
shared her opinions w as Juror No. 2 . While other jurors might have been present, they may not have heard the conve rsation. The alternate’s credibility was “seriously in question

, ”
and t he court did not believe events happened as the alternate
described t hem to the DAs. No e vidence showed the jurors
and the alternate discussed the facts of the case during the trial or during deliberations. The holdout jurors were not at the Thursday lunch . Some jurors testified they did not sit together

at the Thursday farmer’s market

, and nothing from that lunch was shared with jurors who were not present. Juror No. 2 was credible, and her testimony was borne out by the other jurors

. The court concluded the alternate’s opinions were not shared or communicated during d eliberations. The mi sconduct did not affect the jury’s verdict and Sanchez was not prejudiced

. The case against him was “rather strong” and supported by
“a tremendous amount of evidence.” The jury quickly reached23

a verdict after the readback, and “I don ’t believe they rea ch ed

a verdict based on what transpired at tha t lunch.”
2. The alternate’s misconduct did not prejudice Sanchez “A criminal defendant is constitutionally entitled to an unbiased, impartial jury. [Citation

. ] ‘Jurors must be admonished not to “form or expre ss any opinion about the case until the cause is finally submitted to them.” (§ 1122, subd. (b).) Prejudgment “constitute[s] serious misconduct ” [citation], raising a presumption of prejudice. The presumption is rebutted “if the

ent ire record . . . indi cates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.” ’ ” ( People v. Fayed (2020) 9 Cal.5th 147, 174.) We review independently the mixed question of law and fact whether jury misconduct was prejudicial. ( People v. Weatherton (2014) 59 Cal.4 th 589, 598.) “Jury misconduct serious and extensive enough to impair the fairness of the trial or deliberations may warrant granting

a new trial motion. [Citations. ] Where the trial court has
heard evidence and made findings of historical fact regarding
the alleged misconduct, we accept those findings if they are supported by substantial evidence.” ( People v. Flinner (2020)
10 Cal.5th 686, 755

- 756.) We do not rewe igh the trial court’s credibility determinations when supported by substantial evidence. ( People v. Merriman (2014) 60 Cal.4th 1, 100

. )
A trial judge who observes and speaks with a juror gathers
from the juror’s confidence and demean or valuable informati on that does not appear in the appellate record. ( Id . at p. 101.) We agree with the trial court that the alternate committed misconduct when she expressed her belief in Sanchez’s guilt to
Juror No. 2 , the only deliberating juror who testified she heard24

t he alternate ’s opinions. Juror No. 2 was also the only juror
who heard the alternate say she worked in the building (which Sanchez characterizes as claiming special knowledge). We do

not second

- guess the trial court’s conclusion that Juror No. 2

was cred ible when she testified under oath that none of the alternate’s statements in any way affect ed her deliberations,

or ca me up in the jury room. Juror No. 31, the other alternate, testified he heard the alternate express her opinion whe n they
were alone bef

ore the start of deliberation s . J uror No. 31 and
the alternate did not participate in the deliberations. Although Sanchez’s new trial motion repeated ly accused all the jurors
of lying about their o wn and the alternate’s conduct, we r epeat

we do not rewei gh the trial court’s credibility determinations. Defense counsel urged the trial court to “rely on its gut, experience” despite the jurors’ testimony they did not have improper conversations and were not influenced by the alternate.
But t he trial court’s instinct and experience led it to believe the jurors’ sworn testimony. Each juror testified outside the hearing of the others, and substantial evidence supports the court’s
decision to believe them. Sanchez argues another basis for a finding of miscondu ct: one or more of the deliberating jurors must have shared the

vote counts with the alternate, who then repeated them to the
DAs. He argues the court failed to ask the deliberating jurors about the vote splits and whether they discu ssed the splits
with the alternate. Yet a ll the deliberating jurors except Juror
No. 2 testified they did not remember any contact with the alternate after deliberations began, and did not discuss the case
with her. Juror No. 2 did not remember whether s he had lunch
with the alternate on the Thursday before or after deliberations25

began, and did not remember whether vote splits had been
discussed. And given the timeline , the 10

- 2 split likely was
after lunch on the Thursday during deliberations, and so th e alternate could hav e learned of that split only after the verdict. Substantial evidence supports t hat f actual finding

. Sanc hez also argues once Juror No. 2 testified the alternate said Sanchez was guilty at a lunch before deliberations began,
the court should have recalled all the oth er jurors to ask if they heard the alternate’s opinions during trial

. He forfeited
this claim by not asking for additional inquiry into the prejudicial effect of the alternate’s misconduct. ( People v. Bell (2019)
7 Cal.5t h 70, 120; People v. Holloway (2004) 33 Cal.4 th 96,
126

- 127.) We have read the entire record. We agree with the trial

court ’s finding that the presumption of prejudice was rebutted,

as we see no reasonable likelihood that any of the deliberating jurors was biased against Sa nchez. 3
3. Sanchez’s absence during juror testimony did

not violate his constitutional rights At the start of the July 19 hearing, the court stated: “Mr. Sanchez got in a fight downstairs, and he was tased and
he was taken to medical to be cleared. I am not waiting for him. I intend to proceed. [ ¶ ] This [hearing] is basically in lieu of giving up the names and having investigators go out and take

3 The trial court also commented on the strength of the

case against Sanchez. Under some circumstances, t he strength of the evidence at trial is relevant to assessing whether jury misconduct prejudiced the defendant. ( People v. Solorio (2017) 17 Cal.App.5 th 398, 408.) This was not the basis for the trial court’s ruling, nor is it the re ason we affirm.26

declarations. He wouldn’t be present there anyway.” Defense counsel objected that the court should wait. The court responded it had gone to great lengths to get the jurors to come to court, and

“ [ w ] e’ll try to get him here in a timely fashion. [ ¶ ] But if we don’t get him here, then I intend to proceed. . . . I’m going to put them
under o ath because this is i n lieu of affidavits, and affidavits are signed under penalty of perjury.” The hearing was intended to be less intrusive for the jurors, so the court would proceed without
Sanchez. When the court reconvened the hearing on second call at
9:30 a.m. , defens e counsel objected to continuing in Sanchez’s
absence and added : “ [H] e should be here soon.” The court stated the questions it had received from both counsel were extensive

, and it would focus on the issues raised at the previous hea ring.
Each of the si x jurors stated they did not remember having lunch with alternate jurors during deliberations or hear ing any juror
discuss the case outside the jury room. “A criminal defendant accused of a felony has the constitutional right to be present at every crit ical stage of the trial, including during the taking of evidence.” ( People v. Bell

, supra , 7 Cal.5 th at p. 114.) A competent defendant may waive that right if the waiver is know ing, intelligent, and voluntary,
and a n unduly disruptiv e defendant may be re moved from
the courtroom if after a warning by the court he continues his disruptive behavior. ( Id. at p p

. 116

- 117.) The right to be present exists only at critical stages of the trial, “ ‘in which a defendant’s
“ ‘ absence might frus trate the fairness of the proceedings’ [citation], or ‘whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charg e ’ [ c itation ]

. ” ’ ” ( Id . at p. 118.)27 “ ‘The defense has no constitutional right to be present at every interaction between a judge and a juror.’ ” ( United States v. Gagnon (1985) 470 U.S. 522, 526.) Due process requires presence

“ ‘ to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ ” ( Ibid .) E ven if he
has th e right to be present, a defendant has the burden to demonstrate his absence prejudiced his case or denied him

a fair trial. ( People v. Bradford (1997) 15 Cal.4 th 1229, 1357.) The hearing took place after the guilty v erdicts, and was
desi gned to serve as a replacement for an investigator’s interview of the jurors. Sanchez had been brought to the courthouse

to attend, but got into a fight at the courthouse just before
the hearing and had been tased. Six jurors were wa iting to
be questione d, and t he court proceeded with questions proposed by both sides. Given these circumstances, we conclude the hearing was not a critical stage of the trial at which Sanchez’s presence was constitutionally required.
Sanchez cites Walke r v. Lockhart (8th Ci r. 1988) 852 F.2d 379 ( Walker )

. Walker addressed ineffective assistance of counsel. During the testimony of his accomplice at Walker’s trial for capital murder, an unknown woman walked into the jury room

to get a cup of coffee , and r emarked she could kil l both men. After two jurors told the court about the intrusion, the court conducted an in camera voir dire of each juror with only counsel present. Walke r’s counsel stated he was satisfied from the jurors’ responses they would delib erate based only on t he evidence,
and declined to request a mistrial. The trial continued and
the jury convicted Walker . He did not learn of the intrusion or the voir dire until he was in prison, and eventually filed a federal habeas petition alleging in effective assistance based on counsel’s28

failure to request a mistrial . ( Id . at pp. 380

- 381 .) The court
of appeals concluded counsel had made a reasoned strategic decision. ( Id. at p. 382.) In examining Walker’s ineffective assistance of counsel
claim ( based on counsel’s fa ilure to request a mistrial) , the court stated: “We recognize Walker had a constitutional right to be present at the in camera voir dire of the jury.” ( Walker

, supra , 852 F.2d at pp. 381

- 382.) This statement is not supported by Supr eme Court or other au thority. (See United States v. Gagnon

, supra , 470 U.S. 522 ; Johnson v. Cullen (N.D.Cal. 2010) 704 F.Supp.2d 869, 914 .) In People v. Abbott (1956) 47 Cal.2d 362

, the trial court questioned a juror in chambers with the attorneys

presen t over a defense obje ction that the examination of the juror should take place in open court. The court then discharged the juror in open court and denied the defendant’s motion for mistrial. ( Id . at pp. 371

- 372.) “It was not error to conduct the

procee dings in chambers in Abbott’s absence. . . . [I]t is settled that the presence of a defendant is required only where it has a reasonably substantial relation to the fullness of his opportunity to defend against the charge. [Citation s .] The absence of Ab bott during the proce eding in chamber s could not have affected his right to a fair trial.” ( Id . at p. 372

. ) Even if the hearing were a critical stage of the proceedings, Sanchez has not demonstrated prejudice to his full ability to defend against the mur der and attempted mur der charges
of which he already had been convicted. The hearing was one
of four on the juror misconduct issue. Sanchez was present at
the hearing when the alternate and the DAs were questioned, and was present at the third and fourth hearings when the ot her jurors were examined. His argument that he was necessarily29

prejudiced because his presence would elicit more truthful testimony presumes rather than demonstrates prejudice.
4. Sufficient evidence supported the verdict on count 7
and the instruction given does not require reversal
In moving for a new trial, de fense counsel argued insufficient evidence supported Sanchez’s conviction on count 7 (attempted murder of Flaco). No evidence sho wed Sanchez
knew Flaco was in the room when he allegedly lit the fire, and
under People v. Canizales ( 2019 ) 7 Cal.5th 591 ( Canizales ) , the prosecution was required to prove Sanchez “want [ ed ] and [was] willing to kill everyone [ Flaco ] in order to kill the target [ Nivea ]

. ” The prosecutor responded t hat Sanchez had staye d in the building for a while, and when he set the trash on fire outside
the door to what he knew to be Flaco’s room , Sanchez also knew anyone insid e was in the zo ne of fatal harm. The court concluded the evidence supported a finding that
in order to kill Nivea, Sanchez i ntended to kill everyone in Flaco’s room by setting two fires in such a way that no one inside c ould escape. The jury could draw the reasonable inference that
Sanchez knew that Flaco was in his room with Nivea. On ap peal, Sanchez argues the “kill zone” doctrine requires that the only reasonable inference from the evidence be that
Sanchez intended to kill everyone in the room to guarantee the death of the primary targe t. Here there was another reasonable
inference

— San chez intended to kill only Nivea, but in carrying out that intent he callously and recklessly endangered others. We disagree.
In Canizales

, decided after the guilty verdicts but before Sanchez was sentenced, the California Supreme Court held: “[T]he kil l zone theory for est ablishing the specific intent to kill30

required for conviction of attempted murder may properly
be applied only when a jury concludes: (1) the circumstances
of the defendant’s attack on a primary target, including the type
and extent o f force the defendant used

, are such that the only
reasonable inference is that the defendant intended to create

a zone of fatal harm

— that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s
death

— around the primary target and (2 ) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” ( Canizales

, supra , 7 Cal.5th at

p. 607.) “The use or attempted use of force that merely endangered everyone in the area is in sufficient to support a kill zone instruction.” ( Id . at p. 608.) Relevant circumstances include the type of weapon used , the distance between the defendant and the alleged victim

, and the alleged victim’s proximity to the primary target. ( Id. at p. 607. ) We examine
the rec ord to determine whether it contains substantial evidence to support the inference that Sanchez intended to kill everyone
in Flaco’s room in order to kill Nivea. ( Id. at p. 609; People v.
Cerda (2020) 45 Cal.App.5th 1, 16 ( Cerda ) , rev iew granted May 13, 2 020, S260915 .) The scope of the kill zone is the area in which the defendant intended to kill everyone, not merely the area in which
other people were at risk. ( Cerda

, supra , 45 Cal.App.5th at

p. 19.) Whether the nonprimary target’s egress was constrict ed
is a relevant consideration. ( In re Rayford (2020) 5 0 Cal.App.5 th 754, 780.) And “ ‘ [w]hether or not the defendant is aware that the attempted murder victims were within the zone of harm
is not a defense, as long as the victims we re actually within
th e zone of harm.’ ” ( Cerda , at p. 20.) While the defendant’s31

awareness of the victim’s location is relevant, it is not dispositive as it might be when the magnitude of the attack is limited, as when a shooter fires a single shot. ( Ib id .) The prosecution presented evidence that after Sanchez fought with Nivea she went into the hallway, where Flaco
let her into his room next door and closed and locked the door.
While Sanchez continued to scream outside the door that he
would kill Nive a, she and Flaco talk ed for some time . Shortly after they no longer heard Sanche z screaming, they realized
the pile of trash outside the door had been set on fire. The room’s exit to the hall was blocked by the flames. Bars on the window prevented their escape until a firef ighter sawed through the bars and helped them down a ladder. Substantial evidence supported only one reasonable
inference: Sanchez intended to kill everyone in Flaco’s room when he set the fire just outside the locked door. Sanchez knew his primary targ et, Nivea, was inside the room, and although
the evidence also supports the inference he knew Flaco was inside, it is enough that Flaco was trapped inside the room
with Nivea. And Sanchez telegraphed his intent. Both Nivea
and Flaco heard him yelling he was going to kill Nivea. Mendez
testified she heard Sanchez yelling that he hoped someone he didn’t like burned and died . She told the 911 operator Sanchez said he had to kill everyone inside the building. Although Sanchez argues th at setting fire to a commercial building creates a risk too unpredictable to justify a kill zone instruction, here
the prosecution argued the zone of danger was Flaco’s room (and Sanchez was not charged with the attempted murder of Muse, who escaped the fi re through the window of another room in
the burning building). It would be unreasonable to infer that32

Sanchez in tended to kill only Nive a and not anyone else inside Flaco’s room. The evidence supported a guilty verdict on count 7. Sanchez argues even i f a kill zone instruc tion was supported by the evidence, the trial court erred when it gave CALCRIM No. 600, which is “incorrect and inadequate.” 4
The instruction was taken from CALCRIM No. 60 0:

“A person may intend to kill a specific person

or victims and at the same time intend to kill everyone in a particular zone of harm, or a
kill zone. [ ¶ ] In order to convict the defendant of the attempted murder of Robert Fernandez, also known as Flaco, the People must prove that the defendant not only intended to kill Anthony Roberts [Nivea], but also either
intended to kill Robert Fernandez or intended to kill everyone within the kill zone. [ ¶ ] If you
have a reasonable doubt whether the defendant
intended to kill Robert Fernandez or intended to kill Anthony Rober ts by killing everyon e in the kill zone, then you must find the defendant not guilty of attempte d murder of Robert
Fernandez.”
Sanchez cites Canizales and In re Rayford , but in both

cases (unlike here), the evidence was found insufficient to support
a kil l zone instruction

. Canizales expressly declined to invalidate
the standard CALCRIM No. 600 , because the evidence did not support the instruction

. ( Canizales

, supra , 7 Cal.5th at pp. 597

-

4 Sa nchez did not object to the instruction, but the jury

was instructed and returned its verdicts before Canizales was decided.33

598.) The Court added that “when a kill zone instruction is legall y warranted and in fa ct provided, the standard instruction
should be revised to better describe the contours and limits of
the kill zone theory as we have laid them out here.” ( Id. at

p. 6 0 9.) In Rayford , the instruction defined the kill zone only

as “ ‘ a particular zone of risk

, ’ ” and did not tell the jury that
the defendants must have intended to kill the other individuals
in the kill zone, instead allowing conviction if they intended merely to expose the others to a risk of harm. ( Rayford

, supra , 50 Cal.App.5 th at pp. 78 2

- 78 3 .) Here the in struction did tell the jury Sanchez must have intended to kill Flaco as well as Nivea, not merely expose Flaco to harm

. Even if CALCRIM No. 600 as given were invalid when (as here) sufficient evidence supports a kill zone instruction

, in this case the error is harmless beyond a reasonable doubt.
If a court instructs the jury on an invalid theory as well as a
valid theory, reversal is not required if after examining the
entire record, it is clear beyond a reasonab le doubt that jurors would have reached the same verdict. ( People v. Aldemat (2019) 8 Cal.5th 1, 13.) The jury was instructed on the valid theory that
it could find Sanchez guilty of attempte d murder if he specifically
intended to kill Flaco. It is clea r beyond a reasonable doubt
that the jury would have convicted Sanchez of attempted murder
because he intended to kil l Flaco. He set fire to a big pile of
trash in the second

- floor hall directly outside the door of Flaco’ s adjoining r oom; he set another f ire in another area o f the hall; and Mendez told the operator Sanchez said he had to kill everyone i n the building. Given the evidence that Sanchez set

a blaze in the hall blocking anyone from exiting Flaco’s second

-34

story
, locked room , ev en without a kill zone instruction, th e jurors would have reached the same verdict of guilty on count 7.
5. The trial court’s evidentiary rulings were not

an abuse of discretion Sanchez argues the trial court abused its discretion when
it excluded evidence of prior fires in the building, and when it
admitted the surveillance video into evidence.

a. Prior fires In its trial brief, the prosecution noted witness statements that there had been three previous fires at the building, and “[e]vidence of any prior fires at that l ocation are not relev ant.”
At a hearing, defense counsel argued the prior fires were relevant, anticipating the arson investigator would “say that
the homeless population is more careless

. ” The prosecutor argued prior fires were not relevant. The defens e had offered

as a wi tness the building manager, who would testify that shortly before the fire, a male Hispanic had approached him with an offer to help burn the building down. The court ruled that more was required to show third

- party culpability, and a greed to allow the
de fense to ask the investigator if the likelihood of accidental fire was greater when homeless people were staying in the building,
and until the court he ard the answer it would not decide whether any previous fires were relevant to the cause of the June 13 fire. During trial, LAFD Chief Moore testified that homeless people starting fires was not a concern. Later, the defense renewed its argument about the fires and asked to recall
Chief Moore. Defense counsel also a sked the arson inve stigator
Jimenez whet her homeless people could be careless with cigarettes and ca u se a fire, and the court sustained a relevance object ion by the prosecutor.35 Sanchez argues that fires were “shockingly common”
in the building and the court violated the law and the federal

cons titution when it excluded evidence of earlier fires , because that evidence would make the jury more likely to conclude
someone else had started the June 13 fire

. Third

- party culpability evidence is admissible if relevant and if its pr obative value is not substantially outweighed by risk of undue delay, prejudice, or confusion. ( People v. Turner (2020)
10 Cal. 5th 786, 816.) “ [ A ] dmissible evidence of this nature points to the culpability of a specific third party, not the possibility t hat
some unidentified third party could have committed the crime,” and there must exist direct or circumstantial evidence linking
the third person to the actual perpetration of the crime. ( Id. at pp. 816

- 817.) Review is for abuse of discretion. ( Id. at p. 817.)
The court d id not abuse its discretion when it excluded evidence of prior fires intended to show someone else set the
June 13 fire. No direct or circumstantial evidence linked any specific third party to the fire. And the court’s “reasonable

ap plication of the rule s of evidence to exclude irrelevant and potentially misleading information did not deprive defendant
of his constitutional rights.” ( People v. Turner

, supra , 10 Cal.5th at p. 818.)
b. Surveillance video
Out of the presence of the ju ry , Detective Carrill o testified that on June 21, 2016, he and his partner obtained surveillance
video of the alley next to the building. The date stamp on
the screen was correct
, but the time was 42 minutes ahead.
Over defense objection, the trial court admitted the video, because the time differential went to its weight rather than admissibility. During rebuttal, Detective Carrillo testified the36

video from the day of the fire (obtained a week later) did not show Sanchez in the alley when he had claimed to be coming back fr om Jo se’s store, and explained the 42

- minute time differential to the jury. The jury saw two exhibits of still images from the video. Sanchez argues there was no adequate foundation for the
evidence because Detective Carrillo obtaine d the v ideo eight day s after the fire, and had no personal knowledge how the camera recorded activity in the alley on the day of the fire

. No “elaborate showing of accuracy is required” for
admission of automatically produced photographs and contemporan eously recorded data. ( People v. Goldsmith (2014)
59 Cal.4 th 258, 272.) Even perceived inaccuracies and errors

go to the weight of the evidence, not its admissibility. ( Ibid. )
No greater showing of authentication (such as expert testimony) is required to admit digital imag es simply because they theoretically can be manipulated. ( Ibid

. ; People v. Tran (2020)
50 Cal.App.5 th 171, 191.) The jury could decide what weight

to give the testimony and the photo st ills, given Detective Carrillo’s description of when he obtained the surveillance video
and his explanation of the time display differential. No abuse
of discretion occurred.
6

. Sanchez has waived his claim of prosecutorial misconduct and his counsel’s failure to object

was not ineffective assistance In closing argument, defense counsel told the jury the fire department was more concerned with putting out the fire than with preserving evidence. He argued two photographic exhibits showed a cigarette lighter and a gas can at the scene, which suggested s omeone else may have started the fire, and asked why that evidence was not preserved. In rebuttal, the prosecutor said:37 “He pointed to something in that photograph,
he said see that’s a lighter. We don’t know that. And in the jury instruction you’re
i nstructed not to spec ulate. No one testified
that was a lighter. And you’re not allowed

to speculate as to what it is, it’s not allowed. You’re only allowed to analyze actual evidence based upon the testimony that came out of
the witnesses in court. An d regarding the can, it could or could not be a gas can. Could be something else. Potentially a detergent
container. We don’t know. And that’s the whole point. You can’t speculate.” Defense counsel did not object. Sanchez now argues the prosecutor committed misconduct by telling the jurors they could not independently evaluate the photographic evidence. Making a timely and specific objection and requesting the jury be admonished “is a necessary prerequisite to preserve a claim of prosecutorial misc onduct
for appeal.” ( People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
He has forfeited this claim. Sanchez argues counsel’s failure to object was ineffective assistance. Ineffective assistance requires prejudice which

“ ‘so undermined the proper functi oning of the adversar ial process that the trial cannot be relied on as having produced

a just result.’ ” ( People v. Kipp (1998) 18 Cal.4th 349, 366.)
The prosecutor’s statement that the jurors could not speculate about what they saw in the photographs wi thout witness
testimo ny did not make the trial fundamentally unfair. The evidence that Sanchez set the fire was strong, including his38

own statements. The presence or absence of a lighter or gas can after the fire was out neither proves nor disproves Sanc hez’s guilt. We see no possible prejudice.
7

. Cumulative error does not require reversal As we have found no error, we reject Sanchez’s argument
that cumu lative error requires reversal.
DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN TH E OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

ADAMS, J. 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Const itution.