Filed 12/11/20 P. v. Gomez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE GOMEZ,

Defendant and Appellant.

 B295182

 (Los Angeles County

 Super. Ct. No. PA087810)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Hilleri G. Merritt, Judge. Affirmed in 

part, reversed in part, and remanded.

Caneel C. Fraser, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Steven D. Matthews and

Michael J. Wise, Deputy Attorneys General, for Plaintiff and 

Respondent.

______________________________________________________

INTRODUCTION

Appellant was convicted of premeditated and 

deliberate attempts to murder four of his abused exgirlfriend’s family members, viz., her mother Gisela C., her 

aunt Rosa Maria C., and two of her sisters, Leah C. (then 

three years old) and Aurora C. (11 months old).1 He was also 

convicted of committing a misdemeanor hit and run (count 

seven) while fleeing from police in his car. He had stipulated 

to the facts charged in count seven without expressly 

waiving his constitutional trial rights with respect to that 

count, or being advised on the record that the stipulation 

had the effect of waiving them. 

At trial, appellant’s ex-girlfriend, Catherine C., 

testified (without objection) about three separate occasions

on which he hit her, the last of which occurred on December 

6, 2016. The jury received evidence of appellant’s 

misdemeanor domestic violence conviction arising from the 

1 Because the members of the C. family share a surname, we 

refer to them by their first names to avoid confusion and to 

preserve the anonymity of the minor victims.
3

December 6 incident, and of an attendant restraining order 

requiring appellant to stay away from Catherine. She 

further testified, and appellant admitted, that they 

continued seeing each other until the night of December 17, 

2016. That night, after appellant dropped Catherine off at 

her aunt Rosa’s house and she failed to respond to his text 

messages, he came to Rosa’s door and continuously insisted 

on seeing Catherine, refusing to leave until the police 

arrived in response to her cousin’s 911 call. Though 

Catherine had been living with her mother Gisela, she 

decided that night to get away from appellant by moving in 

with her father, and communicated that decision to 

appellant. 

The next afternoon -- as established by Gisela’s and 

Rosa’s testimony, as well as appellant’s admissions --

appellant knocked on the door of Gisela’s apartment, forced 

his way in (or refused to leave until Gisela relented), and 

continuously demanded to see Catherine, despite the 

women’s confirmation that she was at her father’s home. 

When Rosa attempted to call the police, appellant struck the 

phone from her hand and drew a chef’s knife. According to 

the two women, he then attempted to stab three-year-old 

Leah, but Rosa shielded Leah with her arm. Appellant then 

struck Rosa with the knife six times, including on her head 

and chest. When Gisela fled, holding baby Aurora in her 

arms, appellant chased her and struck her with the knife 

seven times, perforating one of her lungs. Aurora also 

sustained a minor wound to her abdomen and two stab 
4

wounds to her thigh. Two of Gisela’s neighbors witnessed 

appellant’s attack on her and testified that immediately 

after the attack, appellant’s facial expression looked satisfied 

and remorseless; one of the neighbors additionally testified 

that during the attack, appellant’s expression looked “really 

mad” and “like saying . . . , ‘Die, you bitch.’” After appellant 

fled, he sent Catherine a message saying he had done 

something she would remember him by, along with a picture 

of his bloody hands. Appellant testified that he began using 

crystal methamphetamine around the time he first hit 

Catherine, that he had used it on the morning of the attack, 

and that he had not been thinking during the attack.

The trial court denied appellant’s request to instruct 

the jury on the heat of passion theory of attempted voluntary 

manslaughter. Appellant did not request an instruction that 

provocation can raise a reasonable doubt regarding 

premeditation and deliberation, and the court did not deliver 

one sua sponte. The jury convicted appellant of the 

attempted murders of Gisela, Rosa, Leah, and Aurora, and 

found them premeditated and deliberate. On each of the 

attempted murder counts, the court sentenced appellant to a 

term of 15 years to life. The court ordered the sentences to 

run consecutively (commenting that it did not know that it 

had discretion to do otherwise), and imposed fines and fees 

without determining appellant’s ability pay. 

On appeal, appellant contends the trial court 

prejudicially erred at trial by: (1) admitting the neighbors’

testimony that appellant appeared to have certain mental 
5

states during and immediately after his attack on Gisela; (2) 

admitting Catherine’s testimony about appellant’s acts of 

domestic violence prior to the December 6, 2016 incident for 

which he was convicted; (3) denying his request to instruct 

the jury on the heat of passion theory of attempted voluntary 

manslaughter; (4) failing to instruct the jury, sua sponte, 

that provocation can raise a reasonable doubt regarding 

premeditation and deliberation; and (5) accepting his 

stipulation to the facts alleged in count seven (misdemeanor 

hit and run) without obtaining a voluntary and intelligent 

waiver of his constitutional trial rights. He additionally 

contends that his trial counsel was unconstitutionally 

ineffective for failing to object to the admission of 

Catherine’s challenged testimony, and that he was 

prejudiced by the cumulative effect of the court’s asserted 

evidentiary and instructional errors. Finally, he contends 

the court erred at sentencing by: (1) imposing 15-years-tolife terms on his attempted murder convictions, rather than

the proper terms of seven years to life; (2) failing to exercise 

its discretion whether to run his indeterminate life sentences

concurrently; and (3) imposing fines and fees without 

determining his ability to pay. The People dispute each of 

appellant’s contentions of trial error, but concede that his

15-years-to-life terms on his attempted murder convictions 

are erroneous, and that the court may address concurrent 

sentencing and ability to pay at appellant’s resentencing 

hearing.
6

We conclude that appellant’s stipulation to the facts 

alleged in count seven was tantamount to a guilty plea, and

that the record does not affirmatively show he voluntarily 

and intelligently waived his trial rights with respect to that 

count. Accordingly, we reverse his conviction on count seven. 

We otherwise affirm his convictions. We remand for further 

proceedings on count seven and for resentencing. At 

resentencing, the court must impose the correct seven-yearsto-life sentence on each attempted murder conviction. We do 

not resolve appellant’s contentions concerning concurrent 

sentencing and ability to pay fines and fees, as the court may 

address these issues at resentencing.

PROCEEDINGS BELOW

A. Prosecution Case

The People charged appellant with four counts of 

attempted murder (Pen. Code, §§ 187, 664; counts one, two, 

three, and eight); four counts of assault with a deadly 

weapon (id., § 245, subd. (a)(1); counts 10 through 13); and 

one count each of resisting an officer by force (id., § 69; count 

four), recklessly fleeing a peace officer (Veh. Code, § 2800.2; 

count five), first degree burglary (Pen. Code, § 459; count six),

misdemeanor hit and run (Veh. Code, § 20002, subd. (a); 

count seven), and dissuading a witness by force or threat 

(Pen. Code, § 136.1, subd. (c)(1); count nine). The People 

alleged, inter alia, that the attempted murders were 

premeditated and deliberate. (Id., § 664; see also People v. 

Gonzalez (2012) 54 Cal.4th 643, 654 [“The crime of 
7

attempted murder is not divided into degrees, but the 

sentence can be enhanced if the attempt to kill was 

committed with premeditation and deliberation”].)

1. Appellant’s Possessive and Abusive 

Relationship with Catherine

Catherine testified that she and appellant started 

dating in December 2015, when they were coworkers at a 

grocery store. Appellant exhibited jealousy throughout their 

relationship. Sometime before October 2016, she had a 

conversation with a coworker named Kevin, which upset 

appellant, who began yelling at Kevin. Catherine finished 

her shift and left with appellant, who implied he and Kevin 

had agreed to fight each other and insisted on waiting for 

Kevin nearby. Though they waited for Kevin, she dissuaded 

appellant from fighting him, and Kevin eventually left the 

store without incident. Shortly thereafter, appellant asked 

Catherine if she wanted to be with him, and she said no. He 

slapped her. He started kicking her, and pulled her into his 

car by her hair. Afraid, she told him she wanted to be with 

him after all, “just so he could calm down.” 

On October 29, 2016, while Catherine and appellant 

were both working at the store, appellant demanded to “go 

through [her] phone,” and began to follow her to the break 

room. His manager told him to get back to work; rather 

than comply, appellant punched a computer in frustration. 

The manager told appellant he was suspended until further 

notice and ordered him to leave. Appellant left with 
8

Catherine, telling her they had both lost their jobs because 

“if he lost his job, [she] did too.” While driving away with 

Catherine, appellant elbowed her face and punched her ribs 

multiple times. She was sore after, but did not sustain any 

injuries. Though nobody but appellant told Catherine she 

had been fired or suspended, she never returned to work at 

the store. 

On December 6, 2016, Catherine and appellant argued 

at her home (her mother Gisela’s apartment), where he had 

spent the previous night. Catherine asked him to leave, but 

he refused. She walked with him to the front of the 

apartment complex, carrying her baby sister Aurora. 

Appellant then headbutted her multiple times. She was still 

holding Aurora when he did so. The police came and 

arrested him. The following exhibits were received in 

evidence: (1) a record of appellant’s December 8, 2016 

misdemeanor conviction for one count of willfully inflicting 

corporal injury on a person with whom he had a dating 

relationship (Pen. Code, § 273.5, subd. (a)); and (2) a 

December 8, 2016 protective order requiring appellant to 

stay 100 yards away from Catherine. 

Gisela testified that after appellant headbutted 

Catherine on December 6, 2016, while she was holding baby 

Aurora, the Department of Children and Family Services 

(DCFS) began visiting Gisela’s home. A DCFS agent had 

Gisela sign an agreement to call the police if appellant came 

to their home. Appellant was soon released from jail, and he 
9

called Gisela to ask to see Catherine. She forbade him from 

continuing to see her. 

2. Appellant’s Violations of the Restraining 

Order

Catherine testified that she and appellant continued 

seeing each other after he was released from jail. He called 

Gisela a “bitch” and expressed a belief that she was the one 

who had called the police on December 6. On December 17, 

appellant told Catherine that his life was over as a result of 

his conviction (which he mistakenly believed was a felony 

conviction) because it would prevent him from getting a job. 

He discussed a desire to stage a scenario in which he would 

hurt Catherine and then either she would kill him or he 

would kill himself, making it look like she killed him in 

self-defense. 

Appellant dropped Catherine off at her aunt Rosa’s 

house, at her request. He soon sent her multiple text 

messages, but she did not respond because she “wanted him 

to go away.” She and her cousin, Isaura C. (Rosa’s daughter),

both testified that when Isaura briefly walked from the 

house to her car and back, appellant swiftly followed her to 

the house’s front door, which she locked. Appellant 

remained at the door and continuously demanded to see 

Catherine, disregarding Isaura’s and her father’s demands 

that he leave. Isaura telephoned Rosa and, at Rosa’s 

suggestion, called 911, “worried he was going to either force 
10

his way inside the house or hurt [her] dad physically.”2 

Meanwhile, Catherine remained in Isaura’s room, shaking 

and crying. The police soon arrived, and appellant fled. 

Catherine’s father, at her request, picked her up and took 

her to his home. She had decided to live with him -- rather 

than return to Gisela’s apartment -- in order to escape 

appellant. 

3. Appellant’s Attack on Catherine’s Family

Gisela testified that the following day, December 18, 

2016, around noon, she was in her apartment with Rosa

(who was visiting to discuss the events at her house the 

previous night). Three-year-old Leah and 11-month-old 

Aurora were also there. Appellant knocked on the door. 

Gisela and Rosa both testified that Rosa told appellant that 

Catherine was not home, but he refused to believe Rosa and 

insisted on seeing Catherine. He either forced his way into 

the apartment (according to Gisela), or attempted to force 

his way in until Gisela told Rosa to let him in (according to 

Rosa). Inside, Gisela told him he needed to accept that 

Catherine had left to live with her father, and asked him to 

leave, but he refused. According to Rosa, appellant and 

Gisela engaged in a “heated” argument. Rosa told him she 

would call the police if he did not leave, and when he still 

2 A recording of Isaura’s 911 call was played for the jury. 

Isaura informed the 911 operator that Catherine’s boyfriend, who 

had “a history of domestic violence,” was following her and 

refusing to leave. 
11

refused to leave, picked up her phone to call the police. 

Appellant struck the phone from Rosa’s hands. 

Rosa testified that appellant shouted “he was going to 

kill all of [them], that Catherine was going to regret it, [and] 

that he was going to leave a memory for Catherine that 

w[ould] last her entire life.” Rosa moved to retrieve her 

phone, but froze when she saw appellant draw a chef’s knife 

from inside his sweatshirt. Appellant turned toward Leah 

and lashed out at her with the knife, but Rosa moved 

between them, sustaining a stab wound to her left arm. 

Appellant then struck Rosa with the knife six times, 

including on her face and chest. Rosa fell to the ground, and 

appellant began kicking her. He eventually ceased his 

attack in order to pursue Gisela, who had fled the apartment. 

Gisela corroborated Rosa’s account of appellant’s 

attack, including Rosa’s testimony that appellant struck at 

Leah with the knife. Gisela further testified that she ran out 

of her apartment to seek help from a neighbor, holding 

Aurora in her arms (as she had been doing since appellant 

arrived). Appellant followed her and struck her seven times 

-- four times on her back, twice on her left arm, and once on 

her head. She fell to the ground, and appellant ran away. 

She looked at her arm, which appeared to be “almost cut in 

half,” and realized appellant had been stabbing her. Despite 

her efforts to shield Aurora, the baby had a “small nick” on 

her abdomen and two stab wounds to her thigh. 

One of Gisela’s stab wounds perforated her lung. A 

doctor testified that the perforation had been potentially 
12

fatal. Gisela received surgery and was hospitalized for five 

days. Rosa was hospitalized for three days, and received 

stitches on her face and staples in her chest. The doctor 

testified that Rosa’s chest wound could have been fatal had 

it penetrated deeper. Aurora received stitches on her thigh, 

requiring two layers of them due to the depth of her wounds. 

4. Sanchez’s and Lopez’s Testimony

Juan Sanchez testified that he and his wife, Judith 

Lopez, were neighbors of Gisela. On the day of the stabbings, 

Sanchez saw appellant in front of Catherine’s apartment. 

Though he was shocked to see appellant there because he 

had seen appellant’s recent arrest at their apartment 

complex, he returned to his own apartment. Shortly 

thereafter, he heard loud screaming and looked out his 

screen door. 

Sanchez saw Gisela (holding Aurora) exit her 

apartment and knock at the apartment next door, screaming 

for help. Appellant emerged from Gisela’s apartment. 

Gisela tried to get away, but appellant chased her. 

Appellant stabbed Gisela multiple times with a knife. 

Sanchez testified, “[H]e seemed like he was trying to get to --

just trying to hurt the baby.” 

The prosecutor asked Sanchez, “How would you 

describe the way you saw him do the stabbing?” He 

responded, “I just saw him like really, really -- really mad. 

To me, like saying, you know, like, ‘Die, you bitch.’ You 

know? That’s the expression I saw on his face.” Appellant’s 
13

counsel objected that the “characterization” had “gone way 

beyond what he saw.” The court overruled the objection. 

When prompted to continue his description, Sanchez 

testified, “Well, just to me, the way I saw him, he was -- he 

wanted to kill her. He wanted to make sure, you know. Just 

a lot of hate on his face expression.” Appellant’s counsel 

objected on an unspecified ground and moved to strike. The 

court ruled, “The portion regarding ‘he wanted to kill her,’

that will be stricken, as that is an improper lay opinion. He 

can describe [how] he looked angry or looked hateful, but as 

to the rest, that will be stricken.” 

On cross-examination, when appellant’s counsel asked 

if appellant left the complex after stabbing Gisela, Sanchez

responded, “Yes. He took off running. He stopped at the 

hallway. He turned around to look at her. He stopped for, I 

don’t know, a couple seconds or so. But when I saw him, 

when he turned around, his facial expression was like he 

was just satisfied. Then he turned around and took off.” 

Appellant’s counsel objected, on unspecified grounds, to the 

“satisfied” portion of the testimony he had elicited. Without 

waiting for or requesting a ruling on his objection, he 

proceeded to question Sanchez as follows: 

“[Appellant’s counsel]: Did he look disturbed?

“[Sanchez]: He didn’t look disturbed at all. 

“[Appellant’s counsel]: He looked calm?
14

“[Sanchez]: He looked very calm, very sure of 

whatever it was. . . . [T]o me he seemed very firm 

on the way he looked at her. I don’t know any 

other way to describe satisfaction, but he was just 

okay. . . . I didn’t see no other emotions on his 

face. Or remorse.

“[Appellant’s counsel]: So you can read emotions? 

[¶] . . . [¶]

“[Sanchez]: No. I cannot read emotion like if I’m 

perfectly -- but if I see somebody angry or if he --

you can tell when somebody wants to hurt 

someone. I mean, I can tell, you know, or when 

you are sad or mad, or something. [¶] His 

expression, he just ha[d] no -- he didn’t seem like 

he had remorse after he looked at her when she 

was already -- after he did what he did.” 

Sanchez’s wife Lopez corroborated his account of

appellant’s stabbing of Gisela and his conduct in the hallway. 

She testified, “He looked back at her, like with a face of --” 

Appellant’s counsel interjected, “Your Honor, the description 

of the face is one thing, but --” The court responded, “I 

understand.” Evidently addressing Lopez, the court 

continued, “Rather than what you interpreted it to be, can 

you just show what his facial expression was?” Lopez 

responded, “Satisfaction.” Appellant’s counsel did not object 

or move to strike. 
15

5. Appellant’s Conduct After the Attack

Catherine testified that on the day of the stabbings, 

appellant sent her a social media message stating that he 

was going to ruin her life because she had ruined his, and 

further stated, “‘I did something that you will remember me 

by.’” He also sent her a picture of his bloody hands.

A Los Angeles Police Department (LAPD) officer

testified that he and a partner responded to a 911 call 

regarding the stabbings. After receiving descriptions of 

appellant and his car and ascertaining his home address, 

they parked near his home in their marked LAPD vehicle, 

and observed appellant driving past. They activated their 

vehicle’s lights and sirens and began to pursue appellant, 

who “began attempting to flee from [the officers].”3 During 

the ensuing high-speed chase, appellant struck a stopped, 

occupied car and continued fleeing. Appellant eventually 

overturned his car on an embankment. 

After obeying the officers’ orders to exit the overturned 

car, appellant began to flee on foot. He reached a two-story 

house that was under construction, climbed a ladder to the 

top of the structure, and threatened to jump to his death. 

About five hours after the pursuit had begun, appellant 

surrendered himself. The officers retrieved a chef’s knife 

and a second, smaller knife from appellant’s car. The parties 

stipulated that Gisela’s blood was on the chef’s knife. 

3 The prosecutor played for the jury a video of the pursuit, 

captured on an officer’s body camera.
16

6. The Parties’ Stipulation to the Facts 

Alleged in Count Seven

During an October 16, 2018 pretrial hearing, the trial 

court addressed appellant, encouraging him to consider 

whether he wanted to proceed to trial or instead negotiate a

plea. The court advised appellant he had “an absolute 

constitutional right to have a trial” and commented, “If you 

feel you absolutely should go to trial, then go to trial.” After 

discussion of other matters, the prosecutor asked appellant’s

counsel if appellant was willing to plead no contest to count 

seven (misdemeanor hit and run), observing that such a plea 

would spare the need to call “a couple of witnesses to prove 

that charge . . . .” Appellant’s counsel responded, “We’re 

willing to stipulate that in the chase he did a hit and run --

he drove badly. He hit someone and did not stop to exchange 

information, insurance information, and fled the scene.” The 

court interjected, “It can be done by stipulation or a plea. He 

can stipulate or plead outside the presence [of the jury]. 

What do you want to do?” Appellant’s counsel responded, 

“I’d rather stipulate in the presence of the jury.” The 

prosecutor and the court indicated their acceptance of the 

proposed stipulation. The prosecutor added, “So then if he 

stipulates, then it will be up to the jury to find him guilty.” 

The court responded, “The jury, he’ll [sic] know as to count 

seven. He has already stipulated he hit --” Appellant’s 

counsel interjected, “Yeah, yeah. Fine.” 

After a midday recess in the hearing, the prosecutor 

asked appellant’s counsel, “Counsel, do you . . . stipulate 
17

[appellant] admits the facts pertaining to count seven is [sic] 

true?” Counsel responded, “Yes.” The court asked, “So I 

understand he doesn’t want to admit count seven, but based 

on the stipulation, it encompasses him admitting count 

seven is true; is that correct?” Counsel responded, “Yes.” 

The court did not ask and counsel did not indicate whether 

he had discussed the stipulation and its effect with appellant. 

The court delivered no advisements to appellant regarding 

the stipulation and asked him no questions regarding it.

During the prosecution’s case-in-chief, the prosecutor 

read the following stipulation: “[Appellant] admits that the 

facts pertaining to count seven is [sic] true.” The court asked, 

“Counsel, do you so stipulate?” Appellant’s counsel 

responded, “Yes, yes.” The court did not address appellant, 

and he did not speak.

B. Defense Case

1. Appellant’s Testimony

Appellant testified that he “started becoming abusive” 

when he first hit Catherine in response to her expression of 

a desire to break up. He added, “I was real clingy, 

possessive of her. I had to talk to her every minute every 

day, every second.” He admitted he had headbutted 

Catherine twice on December 6, but claimed he had been 

“trying to give her an Eskimo kiss.” He acknowledged he 

had believed his conviction would prevent him from fulfilling 

his career goal of becoming a probation officer, and admitted 

he told Catherine he felt “like [he] had no purpose of living if 
18

[he] couldn’t be with her.” But he denied he felt suicidal at 

the time, or proposed a plan to stage his death as if 

Catherine had killed him in self-defense. 

Appellant admitted “blowing [Catherine’s] phone up” 

after dropping her off at Rosa’s house on December 17, 

ignoring Isaura’s and her father’s demands that he leave, 

and fleeing from the police. He testified that Catherine 

“possibly” told him soon thereafter that she was moving in 

with her father. During a recorded interview he gave to the 

police on the night of the attack, which was played for the 

jury, he said that shortly after he fled from the police at 

Rosa’s house, Catherine sent him a text message to the effect 

that she was moving in with her father, “far away.” He 

testified that he “felt like life was over” that night. 

The following morning, December 18, he got 

“frustrated” because Catherine still was not responding to 

his messages. He retrieved a knife from his home and went 

to Catherine’s apartment. He claimed he brought the knife 

in order to open a window to her room, which he planned to 

enter regardless of her permission, so she would be “forced” 

to talk with him. He testified that he had used a knife to 

open windows twice before, including once at Gisela’s 

apartment. 

At Gisela’s apartment, he knocked on the door after 

unsuccessfully trying to open Catherine’s window. He

admitted that he refused to leave when told Catherine was 

not home, and that he used his foot to block the door when 

Rosa tried to close it. Rosa let him in when Gisela told her to. 
19

He described Gisela’s behavior inside the apartment as 

follows: “She told me she [Catherine] wasn’t here, that she 

had moved with her dad for a while, to let things calm down, 

to give her her space, that -- Gisela is nice. She’s a nice 

woman. She told me, ‘You’re a good kid, but you can’t be 

doing things like that to my daughter.’ [¶] She liked me. 

She did. She was telling me -- she was giving me advice.” 

When asked if Gisela was calling him names, he responded, 

“No. She wasn’t. She respected me.”4 

He testified that Rosa, on the other hand, was 

insulting him: “She was calling me a psychopath, that I’m 

crazy, that I needed help, that I’m a stupid idiot, that I 

shouldn’t be going to her house, putting her house at risk, 

that I’m no one to be doing that. But I was paying her no 

attention. [¶] I was paying her no mind until she got a 

[wine] bottle and said, ‘If you don’t leave, I’ll hit you.’ [¶] I 

said, ‘Go ahead. You don’t know what I’m feeling. I’m 

hurt[ing] more than that. Hit me.’” She never tried to hit 

him with the bottle. Instead, she responded, “‘Okay, I’m 

going to call the cops,’” and picked up her phone. He struck 

the phone out of her hand. She responded by grabbing him 

by the collar of his sweatshirt.5 

4 When asked on cross-examination whether his conversation 

with Gisela was a “heated argument,” he responded, “No. Not 

whatsoever. She was pretty compassionate. She was 

understanding me.” 

5 Rosa denied calling appellant a psychopath or a loser, 

grabbing a wine bottle, or grabbing appellant. 
20

Appellant drew his knife and began stabbing, cutting, 

punching, and kicking Rosa. He testified, “I wasn’t trying to 

kill her. I was trying to make her hurt, make her feel pain. 

Make her feel my pain.” Shortly thereafter, when asked 

what he thought he was doing, he responded, “At the time I 

didn’t know what I was doing. I didn’t. I just -- this rage got 

inside of me that I couldn’t control. I really couldn’t.” He 

ceased his attack on Rosa to chase after and attack Gisela, 

explaining he panicked when Gisela fled because he did not 

know what she was going to do. When asked what he was 

trying to do by chasing and attacking Gisela, he responded, 

“Hurt her. To let her know how I was feeling.” He blamed 

Gisela for keeping him and Catherine apart. He admitted 

that after the attack, he sent Catherine a picture of his 

bloody hand and a message that he had done something she 

would remember him by; he commented that he was “being 

stupid” and “wasn’t thinking whatsoever.” 

Appellant denied saying, inside Gisela’s apartment, 

that he would kill the victims or do something Catherine 

would remember for the rest of her life. He further denied 

attempting to strike Leah. He claimed he had not intended 

to kill Rosa or Gisela, explaining that had he so intended, he 

would have brought a gun or used the knife to slash their 

necks or disembowel them. He claimed he had been 

unaware Gisela was holding Aurora, and that he had never 

intended to hurt Aurora or Leah. 

On cross-examination, appellant admitted he “chose” to 

draw his knife, “chose” to attack Rosa, “chose” to pursue 
21

Gisela, and “chose” to stab her rather than strike her 

unarmed. He testified he had used the smaller knife found 

in his car to cut himself. He initially denied that he had 

been trying to kill himself, but after the prosecutor read a 

portion of his police interview in which he said he had been 

trying to kill himself, he confirmed he “[p]ossibly” had been. 

On redirect, appellant claimed he had been “overdramatic” when he told the police he had been trying to kill 

himself. He also testified that he began using crystal 

methamphetamine in fall 2016, before he hit Catherine for 

the first time, and that meth made him short-tempered. He 

further testified he used meth on the morning of the 

stabbings, in order to gain confidence for his attempt to 

convince Catherine to reconcile. On further crossexamination, he admitted he had denied using meth during 

his police interview. He claimed he lied to the police on this 

point because he was already in enough trouble. 

2. Other Defense Testimony

Appellant called his parents as defense witnesses. 

They testified they had never known him to be violent before 

the December 6 headbutting incident. Appellant’s mother 

additionally testified that after the restraining order was 

issued, she told appellant Catherine could no longer come to 

their home. The night before the stabbings (when Catherine 

refused to see appellant at Rosa’s house), she told appellant 

it would be best for him to end his relationship with 
22

Catherine, and tried to dissuade him from attempting to talk 

to her. 

A drug recognition expert testified that “explosive, 

irrational, violent behavior” is a frequent side effect of 

methamphetamine use. He reviewed two photographs of 

appellant, one taken around the time of the stabbings and 

the other taken two or three months before, and testified 

that they showed appellant’s face had developed 

“sunkenness,” a possible side effect of methamphetamine use. 

C. Jury Instructions and Closing Arguments

After the prosecution rested, the trial court discussed 

with counsel whether the prosecution evidence warranted a 

heat of passion instruction, and opined that it did not. After 

appellant testified, the court informed counsel that it still 

believed the evidence did not warrant a heat of passion

instruction. It explained, “You cannot go to a place you’re 

not supposed to be with whatever you have on your mind, 

force your way in, and then somehow claim this as a sudden 

quarrel or heat of passion . . . .” Appellant’s counsel argued

that the provocation needed to be evaluated in light of 

appellant’s alleged use of methamphetamine, but the court 

disagreed. The court also observed, “[H]e created the 

situation.” Appellant’s counsel did not request a pinpoint 

instruction on provocation raising a reasonable doubt 

regarding premeditation and deliberation.

The court did not instruct the jury on heat of passion or 

provocation, but did instruct it on voluntary intoxication. In 
23

instructing the jury on premeditated and deliberate 

attempted murder, the court advised (per CALCRIM No. 

601), “A decision to kill made rashly, impulsively, or without 

careful consideration of the choice and its consequences is 

not deliberate and premeditated.” The court instructed the 

jury on the elements of misdemeanor hit and run. It also 

instructed the jury (per CALCRIM No. 222), “During the 

trial, you were told that the People and the defense agreed, 

or stipulated, to certain facts. . . . Because there is no 

dispute about those facts you must also accept them as true.” 

The prosecutor argued appellant intended to kill Gisela, 

Rosa, Leah, and Aurora, relying on his acts of domestic 

violence, evidence that appellant was suicidal at the time of 

the stabbings because he knew Catherine was leaving him 

permanently, appellant’s arming himself with a knife, and 

the number and locations of the stabbings. The prosecutor 

further argued appellant’s intent to kill was premeditated 

and deliberate, relying on Rosa’s testimony that appellant

stated he would kill the victims to give Catherine something 

to remember, his running after Gisela when she fled, 

Sanchez’s and Lopez’s testimony that appellant looked 

satisfied after the attack, and appellant’s message to 

Catherine stating he had done something she would 

remember. She argued appellant was angry because

Catherine had left him and he no longer had “control over 

her,” leading him to resolve that “if he can’t have her, no one 

can.” She argued the jury did not need to deliberate 

regarding count seven (misdemeanor hit and run), 
24

reminding the jury of appellant’s stipulation “to all the facts 

for committing” the offense, and of the instruction requiring 

the jury to accept stipulated facts. 

Appellant’s counsel argued appellant never attempted 

to strike Leah, but did not dispute that he committed assault 

with a deadly weapon on Gisela, Rosa, and Aurora. He 

argued appellant, under the influence of methamphetamine, 

exploded in violence in reaction to the “trigger” of Rosa’s 

attempt to call the police. He further argued that the 

“irrationality” and “disorganization” of the manner in which 

appellant assaulted the victims showed he did not intend to 

kill them, and that even if he did, his intent was not 

premeditated and deliberate. He twice quoted the jury 

instruction that “‘[a] decision to kill made rashly, 

impulsively, and without careful consideration of the 

consequences is not deliberate and premeditated.’” He 

conceded appellant had committed misdemeanor hit and run. 

In rebuttal, the prosecutor again argued, “[I]t finally 

hit him. This is the end [of his relationship with Catherine], 

and if he is going down, he is taking her with him. [¶] . . . If 

he can’t have her, no one can.” She argued this motive was 

consistent with his telling Catherine “‘If I’m leaving, you’re 

leaving’” when he was suspended and ultimately fired from 

his job at the grocery store. 

D. Verdicts and Sentencing

The jury convicted appellant on all counts, with the 

exceptions of count four (resisting an officer by force;
25

dismissed by the court prior to the jury’s deliberations) and 

count six (burglary). The jury found true, inter alia, the 

allegations that each of the four attempted murders was 

premeditated and deliberate.

In the prosecutor’s sentencing memorandum, she 

represented that the proper sentence on each attempted 

murder conviction was 15 years to life, and requested that 

the court sentence appellant to a total of 60 years to life, plus 

12 years and two months. In defense counsel’s 

memorandum, he argued the court should order appellant’s 

sentences on each count to run concurrently, relying 

principally on appellant’s alleged use of methamphetamine. 

At the sentencing hearing, the court heard statements 

from Rosa and two of her daughters, as well as from 

appellant, his parents, and his sister. Appellant’s counsel 

characterized the case as “some horrible Romeo and Juliet” 

arising from an intense first love. He argued for concurrent 

sentencing, relying on appellant’s youth (he was 21 at the 

time of the stabbings), alleged use of methamphetamine, and 

lack of a serious criminal history.

6 He concluded, “So the 

court has discretion with regard to [concurrent sentencing], 

and I think this is an appropriate case to use it in.” 

The court responded, “I actually don’t know that I do 

have the discretion.” Counsel asked, “For concurrent?” The 

6 According to the probation report, appellant had two prior 

convictions, viz., his December 2016 misdemeanor domestic 

violence conviction and a February 2016 infraction conviction for 

speeding (Veh. Code, § 22350). 
26

court replied, “The indeterminate life sentences. However --

however, you know, these romantic notions that, ‘Oh, it was 

love,’ this isn’t love. You don’t go at a family, including a 

toddler and a baby, with a knife and call it love. Obsession? 

Sure. Aggression, possession, all these things, maybe; but 

these are not acts of love. [¶] . . . [¶] The fact of the matter 

was that [appellant] went over to Catherine’s apartment 

with knives. When she wasn’t there and he had said his 

piece to the family and they didn’t seem particularly swayed, 

his reaction was to stab, to chase after Gisela, who was 

carrying Aurora, a baby. It didn’t all happen in the same 

place. He had to chase after her. She left to try and get help. 

[¶] So I don’t believe that this whole tragedy of Romeo and 

Juliet -- this isn’t romantic. This isn’t a drama. This isn’t a 

play. This is real life, where real people got hurt and real 

people could have died.” Addressing appellant, the court

continued, “[T]he bottom line is, you couldn’t have Catherine 

and you were going to make everyone there suffer because of 

it. [¶] You’re going to have time -- a lot of time -- in prison to 

reflect and figure out these things; but understand that as I 

sentence you today, I don’t sentence you as a monster or a 

person with no redeeming qualities. You’re neither of those 

things. You’re a human being who chose violence and you 

chose aggression, so much so that even though a baby, an 

11-month-old child who is being held by Gisela, that didn’t 

stop you. [¶] The evidence before this court and before the 

jury, who was instructed on voluntary intoxication, who 

heard about the meth use that you said you were using, they 
27

heard that and they still believed and the evidence 

supported in their minds -- and there’s nothing contrary that 

I can see from the evidence -- that if in fact you were using 

methamphetamine, that that is not what fueled this. This 

was something inside of you, and that’s why in December of 

2016, this event occurred.” 

The court sentenced appellant to an aggregate term of 

60 years to life -- comprising 15-years-to-life terms on each of 

the four attempted murder counts -- plus 10 years and eight 

months. The court ordered appellant to pay a restitution 

fine, a criminal conviction assessment fine, and a court 

security fee. 

Appellant timely appealed. 

DISCUSSION

Appellant contends the trial court prejudicially erred at 

trial by: (1) admitting Sanchez’s and Lopez’s testimony that 

appellant appeared to have certain mental states during and 

immediately after his attack on Gisela; (2) admitting 

Catherine’s testimony about appellant’s acts of domestic 

violence prior to the December 6 headbutting incident; (3) 

denying his request to instruct the jury on the heat of 

passion theory of attempted voluntary manslaughter; (4) 

failing to instruct the jury, sua sponte, that provocation can 

raise a reasonable doubt regarding premeditation and 

deliberation; and (5) accepting his stipulation to the facts 

alleged in count seven (misdemeanor hit and run) without 

obtaining a voluntary and intelligent waiver of his 
28

constitutional trial rights. He additionally contends his trial 

counsel was unconstitutionally ineffective in failing to object

to the admission of Catherine’s challenged testimony, and 

that he was prejudiced by the cumulative effect of the court’s 

asserted evidentiary and instructional errors. Finally, he 

contends the court erred at sentencing by: (1) imposing 

15-years-to-life terms on his attempted murder convictions, 

rather than the proper terms of seven years to life; (2) failing 

to exercise its discretion whether to run his indeterminate 

life sentences concurrently; and (3) imposing fines and fees 

without determining his ability to pay.

A. Sanchez’s and Lopez’s Opinion Testimony

Appellant contends the trial court prejudicially erred 

by admitting (1) Sanchez’s testimony that while appellant 

was stabbing Gisela, his facial expression looked “like 

saying . . . , ‘Die, you bitch,’”; and (2) Sanchez’s and Lopez’s 

testimony that after stabbing Gisela, appellant looked 

satisfied and remorseless. The People contend appellant’s 

counsel forfeited his objections to the latter testimony by 

failing to object, and that all the testimony was properly 

admitted. Appellant replies that his counsel preserved his 

objections or, if we find otherwise, was unconstitutionally 

ineffective. 

1. Principles

A lay witness may testify to an opinion that is both 

rationally based on the witness’s perception and helpful to a 
29

clear understanding of the witness’s testimony. (Evid. Code, 

§ 800; see also id., § 170 [“perception” means sensory 

perception].) “Generally, a lay witness may not give an 

opinion about another’s state of mind. However, a witness 

may testify about objective behavior and describe behavior 

as being consistent with a state of mind.” (People v. 

Chatman (2006) 38 Cal.4th 344, 397 (Chatman).) Similarly, 

a witness may describe another person’s facial expression as 

consistent with a state of mind. (See Holland v. Zollner

(1894) 102 Cal. 633, 638-639 (Holland) [“[E]xpressions of the 

face . . . are beyond the power of accurate description. Love, 

hatred, sorrow, joy, and various other mental and moral 

operations, find outward expression, as clear to the observer 

as any fact coming to his observation, but he can only give 

expression to the fact by giving what to him is the ultimate 

fact, and which, for want of a more accurate expression, we 

call opinion”]; Wegner et al., Cal. Practice Guide: Civil Trials 

& Evidence (The Rutter Group 2020) ¶ 8:668 [scope of 

permissible lay opinion includes, e.g., testimony that another 

person “‘looked extremely upset,’” “‘seemed alert,’” or “‘looked 

nervous’”].) 

We review rulings on the admissibility of evidence for 

abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 

724-725.) The admission of evidence violates a defendant’s 

federal due process rights if it renders the trial 

fundamentally unfair. (People v. Covarrubias (2011) 202 

Cal.App.4th 1, 20 (Covarrubias); cf. People v. Abilez (2007) 

41 Cal.4th 472, 503 [exclusion of proffered defense evidence 
30

violates federal constitutional right to present defense only 

in “extraordinary and unusual” circumstances].) Otherwise, 

the erroneous admission of evidence violates only state law 

and is reviewed for prejudice under the standard established 

in People v. Watson (1956) 46 Cal.2d 818, requiring reversal 

only if it is reasonably probable that the defendant would 

have obtained a more favorable result had the evidence been 

excluded. (Covarrubias, supra, at 21.) A “‘reasonable’” 

probability under this test is one sufficient to undermine the 

reviewing court’s confidence in the outcome. (See In re 

Richards (2016) 63 Cal.4th 291, 312-313.) 

Generally, “trial counsel’s failure to object to claimed 

evidentiary error on the same ground asserted on appeal 

results in a forfeiture of the issue on appeal.’” (People v. 

Redd (2010) 48 Cal.4th 691, 729.) Even where counsel 

objects, counsel “must press for an actual ruling or the point 

is not preserved for appeal.” (People v. Hayes (1990) 52 

Cal.3d 577, 619; see also 3 Witkin, Cal. Evidence (5th ed. 

2020) Presentation, § 401 [“where the court, through 

inadvertence or neglect, neither rules nor reserves its 

ruling . . . the party who objected must make some effort to 

have the court actually rule. If the point is not pressed and 

is forgotten, the party may be deemed to have waived or 

abandoned it, just as if he or she had failed to make the 

objection in the first place”].) To prevail on a contention of 

ineffective assistance of counsel, a defendant must prove 

“‘“that counsel’s representation fell below an objective 

standard of reasonableness under prevailing professional 
31

norms, and that counsel’s deficient performance was 

prejudicial, i.e., that a reasonable probability exists that, but 

for counsel’s failings, the result would have been more 

favorable to the defendant.”’” (In re Crew (2011) 52 Cal.4th 

126, 150.) “[W]hether or not to object to evidence at trial is 

largely a tactical question for counsel, and a case in which 

the mere failure to object would rise to such a level as to 

implicate one’s state and federal constitutional right to the 

effective assistance of counsel would be an unusual one.” 

(People v. Seumanu (2015) 61 Cal.4th 1293, 1312

(Seumanu).) 

2. Forfeiture

Appellant forfeited his challenges to Sanchez’s and 

Lopez’s testimony that after stabbing Gisela, appellant 

looked satisfied and remorseless.7 Sanchez first described

appellant’s expression as “satisfied” on cross-examination,

and although appellant’s counsel objected (on unspecified 

grounds), he resumed his cross-examination without 

requesting or waiting for a ruling on the objection. When 

7 The People do not contend that appellant forfeited his 

challenge to Sanchez’s testimony that while appellant was 

stabbing Gisela, his facial expression looked “like saying . . . , ‘Die, 

you bitch.’” Nor could they. Appellant’s trial counsel 

immediately objected to this testimony on the same grounds 

appellant now challenges it on appeal, viz., that the testimony 

was a “characterization” (opinion) not rationally based on 

Sanchez’s perception. 
32

Sanchez again indicated appellant looked satisfied, and 

added that his face showed no remorse, appellant’s counsel 

did not object. Nor did he object when Sanchez testified for a 

second time that appellant seemed remorseless. By failing 

to obtain a ruling on his initial objection (despite his control 

of the cross-examination), and by failing to object thereafter, 

appellant’s counsel forfeited appellant’s challenges to 

Sanchez’s testimony on appeal. (See People v. Hayes, supra,

52 Cal.3d at 619 [“assuming defense counsel made an 

objection under Evidence Code section 352, counsel’s failure 

to obtain a ruling is fatal to defendant’s appellate 

contention”]; 3 Witkin, supra, Presentation, § 401.) Likewise, 

by failing to object to Lopez’s similar testimony, he forfeited 

appellant’s challenge to her testimony on appeal.

Rather than object to each of Sanchez’s 

characterizations, appellant’s counsel challenged their 

credibility by questioning Sanchez’s ability to read emotions, 

extracting a concession that he could not. For that reason, 

in addition to the reasons stated below, we conclude defense 

counsel’s failure to preserve appellate challenges to this 

testimony neither constituted deficient performance nor 

prejudiced appellant. (See Seumanu, supra, 61 Cal.4th at 

1313 [“There being a plausible reason why counsel did not 

object, we cannot conclude on this record that counsel’s 

inaction lacked a reasonable tactical basis”].)
33

3. Error

The trial court acted within its discretion in allowing

the challenged testimony, all of which concerned only the 

appearance of certain mental states, as the witnesses 

observed in appellant’s facial expressions. (See Holland, 

supra, 102 Cal. at 636-640 [trial court properly allowed 

witnesses to testify, based on interactions with third party, 

that third party appeared irrational at specified time; “‘The 

appearance of a person at a given time is one thing; the 

opinion of a witness as to the mental condition of that 

person . . . is quite another’”].) Had the court interpreted 

Sanchez’s testimony that appellant’s expression looked “like 

saying . . . ‘Die, you bitch’” as a direct comment on 

appellant’s intent, it presumably would have sustained 

defense counsel’s objection -- as it did when Sanchez later 

testified that appellant “wanted to kill” Gisela. In 

sustaining the objection to the latter testimony, the court 

aptly commented, “[T]hat is an improper lay opinion. He can 

describe [how] he looked angry or looked hateful, but as to 

the rest, that will be stricken.” It is evident the court 

reasonably interpreted Sanchez’s testimony that appellant’s 

expression looked “like saying . . . ‘Die, you bitch’” as an 

elaboration on his testimony that appellant looked “really 

mad.”8 Under this reasonable interpretation, the testimony 

8 Sanchez testified, “I just saw him like really, really -- really 

mad. To me, like saying, you know, like, ‘Die, you bitch.’ You 

know? That’s the expression I saw on his face.” Appellant does 

(Fn. is continued on the next page.)
34

was rationally based on Sanchez’s perception, and the court 

acted within its discretion in overruling defense counsel’s 

objection to the contrary. (See People v. Weaver (2012) 53 

Cal.4th 1056, 1086 [percipient witness’s testimony that 

defendant displayed hatred before shooting victim was not 

impermissible speculation or improper lay opinion]; 

Chatman, supra, 38 Cal.4th at 397 [same, regarding 

percipient witness’s testimony that defendant seemed to be 

enjoying kicking victim].)

The lay opinion cases on which appellant relies are 

distinguishable, as none concerned opinion on the 

appearance of a mental state as observed in facial 

expressions. (See People v. Torres (1995) 33 Cal.App.4th 37, 

47-48 [trial court erred by allowing police officer to testify 

regarding meaning of robbery and extortion and to opine 

defendant’s crimes were robberies]; People v. McAlpin (1991) 

53 Cal.3d 1289, 1308-1309 [trial court properly excluded 

witnesses’ proffered opinions that defendant was not “a 

person given to lewd conduct with children,” to the extent 

they proposed to rely on matters other than their 

observation of his conduct with children]; People v. Melton

(1988) 44 Cal.3d 713, 742-745 [trial court erred by allowing 

prosecutor to elicit testimony about defense investigator’s 

failure to take action on information provided by witness, 

where prosecutor’s principal purpose was to suggest 

not challenge the admission of Sanchez’s testimony that he 

looked “really mad.” 
35

investigator deemed witness not credible, and jury was 

capable of evaluating witness’s credibility for itself]; People v. 

Brown (1981) 116 Cal.App.3d 820, 829 [trial court erred by 

allowing police officer to opine that defendant worked as 

“runner” in transaction, where jury had been instructed on 

definition of “runner” and was equally qualified to determine 

whether defendant played that role].) Another case on 

which appellant relies is inapposite, as it concerned 

arbitrary law enforcement rather than the admission of 

speculative or otherwise improper opinion. (Jennings v. 

Superior Court (1980) 104 Cal.App.3d 50, 55.) 

4. Prejudice

Even had we found error in the court’s admission of

Sanchez’s and Lopez’s testimony interpreting appellant’s 

facial expressions, we would not find prejudice. We find no 

extraordinary circumstances of the type necessary to render 

the admission of this testimony a federal constitutional 

violation. (See Covarrubias, supra, 202 Cal.App.4th at 

20-21; People v. Abilez, supra, 41 Cal.4th at 503.) Thus, we 

ask only whether it is reasonably probable that appellant 

would have obtained a more favorable result had the 

testimony been excluded. (Covarrubias, supra, at 20-21.) 

For the reasons explained below, we conclude it is not.

We are confident the jury would have found appellant 

intended to kill Gisela (and the other victims) even had the 

court excluded Sanchez’s testimony interpreting appellant’s 

facial expression at the time he was stabbing Gisela. Jurors 
36

are equipped to understand the common-sense proposition 

that facial expressions are not so complex as to betray

whether multiple stabbings were intended to kill or merely 

to injure. Moreover, there was strong evidence of appellant’s 

intent to kill Gisela, including: (1) Rosa’s testimony that 

immediately before launching his attack, appellant shouted 

that he was going to kill them all and leave a memory for 

Catherine that would last her entire life; (2) Gisela’s 

testimony that he stabbed her seven times -- four times in

her back, twice in her left arm, and once in her head -- and 

perforated one of her lungs; (3) the expert’s testimony that 

Gisela’s perforated lung could have been fatal; and (4) 

Catherine’s undisputed testimony that after the attack,

appellant sent her a message depicting his bloody hands and 

telling her -- in terms echoing his alleged expression of 

intent to kill at the outset of his attack -- that he had done 

something she would remember him by. 

We are likewise confident that even had the court 

excluded all the challenged testimony, the jury would have 

found appellant’s intent to kill premeditated and deliberate. 

A decision to kill is “premeditated” if considered beforehand 

and “deliberate” if resulting from careful thought and 

weighing of competing considerations. (People v. Lee (2011) 

51 Cal.4th 620, 636.) The required extent of reflection may 

occur quickly. (Ibid.) Here, Sanchez’s interpretation of 

appellant’s enraged expression was consistent with 

appellant’s defense that he acted in a methamphetamineinfluenced explosion of rage, which arguably weighed
37

against a finding of deliberation. Further, Sanchez’s and 

Lopez’s testimony that appellant looked satisfied and 

remorseless was overshadowed by appellant’s

aforementioned message to Catherine after the attack, 

which more powerfully evinced his lack of remorse and his 

satisfaction in having harmed Catherine by harming her 

family. His message was only one component of the strong 

evidence of premeditation and deliberation, which also 

included: (1) multiple witnesses’ testimony, including

appellant’s admission, that he chased after a fleeing Gisela 

in order to stab her; (2) Catherine’s testimony that before the 

attack, appellant expressed anger at Gisela arising from his 

belief that she had made the 911 call leading to his domestic 

violence conviction, which he believed had ruined his career 

prospects and, by extension, his life; and (3) appellant’s 

admissions that he “chose” to draw his knife, “chose” to 

pursue Gisela, and “chose” to stab her rather than strike her 

unarmed. 

In sum, even had we found error in the court’s 

admission of Sanchez’s and Lopez’s testimony interpreting 

appellant’s facial expressions, there is no reasonable 

probability appellant would have obtained a more favorable 

result had the testimony been excluded.

B. Appellant’s Pre-December Acts of Domestic 

Violence

Appellant contends the trial court prejudicially erred 

by admitting Catherine’s testimony about appellant’s acts of 
38

domestic violence prior to December 2016 (he does not 

challenge the admission of her testimony about the 

December 6 headbutting incident, or of his resulting 

conviction and restraining order). He argues the challenged 

testimony was inadmissible on two grounds: (1) Evidence 

Code section 1101 barred its admission because it was 

character evidence offered to prove his violent disposition; 

and (2) Evidence Code section 352 barred its admission 

because its probative value was substantially outweighed by 

the risk of unfair prejudice. Acknowledging his trial counsel 

did not object on these grounds below, appellant contends his 

counsel was unconstitutionally ineffective in failing to do so. 

1. Principles

Generally, “evidence of a person’s character or a trait of 

his or her character,” including such evidence in the form of 

“evidence of specific instances of his or her conduct,” is 

inadmissible “when offered to prove his or her conduct on a 

specified occasion.” (Evid. Code, § 1101, subd. (a).) However, 

this rule does not prohibit the admission of “evidence that a 

person committed a crime, civil wrong, or other act when 

relevant to prove some fact (such as motive . . . ) other than 

his or her disposition to commit such an act.” (Id., § 1101, 

subd. (b).) “‘[T]he probativeness of other-crimes evidence on 

the issue of motive does not necessarily depend on 

similarities between the charged and uncharged crimes, so 

long as the offenses have a direct logical nexus.’” (People v. 

Fayed (2020) 9 Cal.5th 147, 191.)
39

“The court in its discretion may exclude evidence if its 

probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of 

undue prejudice, of confusing the issues, or of misleading the 

jury.” (Evid. Code, § 352.) “The evidence barred by Evidence 

Code section 352 is evidence that uniquely causes the jury to 

form an emotion-based bias against a party and that has 

very little bearing on the issues of the case.” (People v. 

Thornton (2007) 41 Cal.4th 391, 427.) “‘“Because a motive is 

ordinarily the incentive for criminal behavior, its probative 

value generally exceeds its prejudicial effect, and wide 

latitude is permitted in admitting evidence of its existence.”’” 

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

People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) 

Motive has probative value regarding premeditation and 

deliberation; indeed, it is one of three “Anderson factors” 

often considered by courts in assessing evidence of 

premeditation and deliberation. (People v. Shamblin (2015) 

236 Cal.App.4th 1, 10 & fn. 16, citing People v. Anderson

(1968) 70 Cal.2d 15, 26-27.) 

2. Analysis

Appellant forfeited his objection to the admission of the 

challenged testimony by failing to object in the trial court. 

(See People v. Redd, supra, 48 Cal.4th at 729.) We reject

appellant’s reliance on narrow exceptions to the general rule

requiring an objection in the trial court, which apply only 
40

where an objection would have been futile, or the error was

so prejudicial that it violated the defendant’s federal 

constitutional rights. (See People v. Abbaszadeh (2003) 106 

Cal.App.4th 642, 649-650 [“In our view the error [in 

instructing prospective jurors to lie about harboring racial 

prejudice] is so shocking, affecting the structural integrity of 

the trial, that it . . . not only affected the substantial rights 

of this defendant but, if the conviction were upheld, would 

tend to impair the integrity of the judiciary”]; id. at 648-649 

[objection would have been futile in light of trial court’s 

repeated refusal to acknowledge identical error in separate 

case].) For the reasons stated below, we also reject 

appellant’s alternative contention that his counsel was 

unconstitutionally ineffective in failing to object.

Appellant’s counsel had reason to refrain from 

objecting under Evidence Code section 1101. The evidence of 

appellant’s pre-December acts of domestic violence was not 

offered to prove that he had a disposition to commit such 

acts and, in conformity with that disposition, committed acts 

of domestic violence against the victims of the charged 

offenses (who were not in any protected relationship with 

him, as appellant himself emphasizes). (See Evid. Code, 

§ 1101, subds. (a)-(b).) Rather, as demonstrated by the 

manner in which the prosecutor relied on the evidence 

during closing arguments, the evidence was offered to 

support the prosecution theory of motive, viz., that appellant 

was motivated to attack Catherine’s family to punish 
41

Catherine for leaving him.9 The evidence supported the 

theory by illustrating the depth of his sense of possession 

over Catherine and the lengths to which he would go to 

maintain it. Each pre-December act was triggered by 

threats to his sense of possession over Catherine, viz., her

conversation with a perceived rival for her affections, her 

resistance to his demand to search her phone, and her 

expression of a desire to leave him.10 Appellant’s reliance on 

the lack of similarity between the prior acts and the charged 

offenses is misplaced, as the lack of similarity was 

immaterial to the acts’ probative value regarding motive. 

(See People v. Fayed, supra, 9 Cal.5th at 191.) Accordingly, 

appellant’s counsel reasonably declined to make an objection 

under Evidence Code section 1101.

The same is true regarding an objection under 

Evidence Code section 352. Because the evidence supported 

9 The prosecutor argued appellant was angry because 

Catherine had left him and he no longer had “control over her,” 

leading him to resolve that “if he can’t have her, no one can.” In 

rebuttal, she supported this argument with reference to his 

forcing Catherine to leave her job when he was suspended 

(immediately before he hit her). The trial court evidently 

credited this prosecution theory, telling appellant at sentencing, 

“[T]he bottom line is, you couldn’t have Catherine and you were 

going to make everyone there suffer because of it.” 

10 Thus, contrary to appellant’s contention, the testimony was 

not cumulative to the evidence of the December 6 incident. 

Catherine did not specify any trigger for appellant’s violence on 

December 6.
42

the prosecution theory of motive, it had substantial 

probative value regarding, inter alia, the allegations of 

premeditation and deliberation. (See People v. McKinnon, 

supra, 52 Cal.4th at 655; People v. Shamblin, supra, 236 

Cal.App.4th at 10 & fn. 16.) Considered in a vacuum, the 

evidence might have tended to evoke “an emotion-based 

bias” against appellant (see People v. Thornton, supra, 41 

Cal.4th at 427), but this tendency was insubstantial in the 

context of the unchallenged evidence at appellant’s trial. 

The unchallenged evidence includes appellant’s admissions 

to: (1) being convicted of hitting Catherine while she was 

holding a baby; (2) violating his resulting restraining order 

by defying her and her relatives’ requests to leave her alone 

at Rosa’s house; (3) attempting to violate the restraining 

order again by forcing his way into Gisela’s apartment in 

search of Catherine; (4) viciously stabbing Rosa in reaction 

to her reasonable demands that he leave and her reasonable 

attempt to call the police; (5) chasing after a fleeing Gisela; 

(6) viciously stabbing Gisela while she was holding her baby;

and (7) sending Catherine a message that he had done 

something she would remember him by, with a picture of his 

bloody hands. In addition to appellant’s admissions, the 

unchallenged evidence included Rosa’s and Gisela’s 

testimony that appellant attempted to stab three-year-old 

Leah, Sanchez’s testimony that appellant appeared to be 

trying to hurt 11-month-old Aurora, and evidence that the 

baby was indeed injured. In this context, the jury’s emotions 

were unlikely to be inflamed by the evidence that he had hit 
43

Catherine on two additional occasions (without a weapon, 

and without inflicting injury), bullied her into leaving her job 

at a grocery store, and made unfulfilled plans to fight a 

perceived rival. Thus, the risk of unfair prejudice did not 

substantially outweigh the evidence’s probative value. (See

Evid. Code, § 352.) Appellant’s counsel reasonably declined 

to make an objection under Evidence Code section 352. 

In sum, although trial counsel’s failure to object to 

Catherine’s testimony regarding appellant’s pre-December 

acts of domestic violence forfeited appellant’s challenges to 

the testimony on appeal, this is not the type of “unusual” 

case in which failure to object implicates the constitutional 

right to effective assistance of counsel. (See Seumanu, supra, 

61 Cal.4th at 1312.) 

C. Omission of Heat of Passion and Provocation 

Instructions

Appellant contends the trial court prejudicially erred 

by (1) denying his request to instruct the jury on the heat of 

passion theory of attempted voluntary manslaughter; and (2) 

failing to instruct the jury, sua sponte, that provocation can 

raise a reasonable doubt regarding premeditation and 

deliberation. In support of both arguments, he identifies two 

categories of evidence of provocation: (1) appellant’s 

purportedly “acrimonious” relationship with Gisela in the

weeks before the stabbings, during which Gisela forbade him

from continuing to see Catherine; and (2) Gisela’s and Rosa’s 

actions immediately before appellant attacked them. 
44

1. Principles

A trial court errs in failing to instruct on a heat of 

passion theory of attempted voluntary manslaughter if the 

theory is supported by substantial evidence, meaning 

evidence strong enough to persuade a reasonable jury. (See 

People v. Souza (2012) 54 Cal.4th 90, 116.) The theory has 

both a subjective component and an objective component. 

(People v. Moye (2009) 47 Cal.4th 537, 541, 549; see also 

People v. Millbrook (2014) 222 Cal.App.4th 1122, 1139.) To 

satisfy the subjective component, the defendant must have 

experienced emotion “‘so strong that the defendant’s reaction 

bypassed his thought process to such an extent that 

judgment could not and did not intervene.’” (People v. 

Rangel (2016) 62 Cal.4th 1192, 1225.) To satisfy the 

objective component, the defendant must have reacted to 

provocation “‘that would cause an emotion so intense that an 

ordinary person would simply react, without reflection . . . .’” 

(Ibid.; accord, People v. Moye, supra, 47 Cal.4th at 550 [“the 

conduct must be sufficiently provocative that it would cause 

an ordinary person of average disposition to act rashly or 

without due deliberation and reflection”].) “A defendant may 

not provoke a fight, become the aggressor, and, without first 

seeking to withdraw from the conflict, kill an adversary and 

expect to reduce the crime to manslaughter by merely

asserting that it was accomplished upon a sudden quarrel or 

in the heat of passion. The claim of provocation cannot be 

based on events for which the defendant is culpably 
45

responsible.” (People v. Oropeza (2007) 151 Cal.App.4th 73, 

83.) 

Even if provocation is inadequate to support a heat of 

passion theory, evidence of provocation’s effect on the 

defendant’s state of mind may raise reasonable doubt about 

premeditation or deliberation. (See People v. Rivera (2019) 7 

Cal.5th 306, 328.) “But an instruction that provocation may 

be sufficient to raise reasonable doubt about premeditation 

or deliberation . . . is a pinpoint instruction to which a 

defendant is entitled only upon request where evidence 

supports the theory. [Citation.] The trial court is not

required to give such an instruction sua sponte.” (Ibid.) 

2. Analysis

The trial court did not err in omitting instructions on 

heat of passion and provocation. Appellant did not request a 

pinpoint instruction on provocation, and the court was not 

required to deliver one sua sponte. (See People v. Rivera, 

supra, 7 Cal.5th at 329 [trial court did not err by failing to 

instruct jury that provocation can reduce premeditated 

murder to second degree murder, where defendant did not 

request such instruction].) Though appellant did request a 

heat of passion instruction, the court properly denied the 

request because, as explained below, there was no evidence 

on which the jury reasonably could have relied to find that 

the victims engaged in provocative conduct sufficient to place 
46

an average person in a state of emotion precluding 

judgment.

11

There was no evidence that Gisela engaged in adequate

provocation. Though Rosa testified that Gisela engaged in a 

“heated” argument with appellant inside her home (which 

appellant denied), an average person in appellant’s 

circumstances would have recognized that Gisela had ample 

reason to do so. Appellant had been convicted of abusing her 

elder daughter while she was holding her baby daughter, in 

a manner that resulted in the investigation of her home by 

DCFS; had violated the resulting restraining order by 

continuing to see her daughter; had refused to leave her 

daughter alone at Rosa’s house the night before, resulting in

a police visit and her daughter’s decision to move out of her 

home; and had forced his way into her home in an attempt to 

again violate the restraining order. According to appellant 

himself, even after this behavior on his part, Gisela treated 

11 We reject the People’s contention that to the extent 

appellant’s argument for a heat of passion instruction is premised 

on Rosa’s insults and on his federal constitutional rights, he 

forfeited the argument by failing to rely on those grounds in the 

trial court. A principal purpose of forfeiture doctrine is to 

encourage presentation of issues to the trial court, preserving the 

court’s ability to avoid potential errors and thereby conserving 

judicial resources that might otherwise be spent responding to 

errors only after the fact. (See People v. Gibson (1994) 27 

Cal.App.4th 1466, 1468-1469; People v. Butler (2003) 31 Cal.4th 

1119, 1128.) Here, that purpose was fulfilled. Appellant 

requested a heat of passion instruction and the trial court twice 

discussed whether the instruction was warranted by the evidence.
47

him with respect and compassion. All she did was tell 

appellant to comply with the restraining order and to accept 

her daughter’s desire to end the relationship.12 Gisela’s

conduct was not provocative, let alone so provocative as to 

cause an average person to act without reflection.

For similar reasons, even if the jury credited 

appellant’s testimony about Rosa’s conduct, it could not 

reasonably have found adequate provocation. An average

person in appellant’s circumstances would have recognized

that Rosa had reason to verbally lash out at him in response 

to his abuse of her niece, his behavior at her house the night 

before (which had brought the police to her home), and his

use of force to prevent her from closing Gisela’s door. 

Similarly, the average person would have recognized that

Rosa had reason to attempt to call the police in response to 

appellant’s refusal to leave the apartment, particularly 

because his conduct constituted an attempt to violate the 

restraining order by seeing Catherine. Finally, Rosa had 

reason to grab appellant in response to his initial aggression 

in striking her phone from her hands. (See People v. 

Johnston (2003) 113 Cal.App.4th 1299, 1313 [trial court 

properly declined to deliver heat of passion instruction, 

where defendant was “‘culpably responsible’” for fight he 

instigated and therefore could not establish “that he was 

12 Similarly, appellant’s own mother told him not to bring 

Catherine home because of the restraining order, and attempted 

to persuade him to accept the end of the relationship. 
48

provoked when [his victim] took him up on the challenge”]; 

People v. Oropeza, supra, 151 Cal.App.4th at 83 [same, 

where victim intentionally cut off truck in which defendant 

was passenger, but defendant was responsible for “mutual 

road rage” that allegedly provoked defendant to shoot 

victim].) In any event, Rosa’s alleged grabbing of appellant, 

even accompanied by her alleged insults regarding 

appellant’s intelligence and mental health, was insufficiently 

provocative to drive an average person into an unreflective 

state of emotion. (See People v. Najera (2006) 138 

Cal.App.4th 212, 215, 226 & fn.2 [victim’s pushing defendant 

and calling him “‘jota,’” translated at trial to mean “‘faggot,’” 

was insufficient to satisfy objective component of heat of 

passion theory].) 

The cases on which appellant relies are distinguishable, 

as they all involved much stronger evidence of provocation 

than is present here. (See People v. Wright (2015) 242 

Cal.App.4th 1461, 1484-1486 [trial court erred by denying 

defendant’s request for heat of passion instruction in 

prosecution for murdering her ex-boyfriend, where defendant 

testified she was placed in fear by her ex-boyfriend’s 

frequent threats to deprive her of custody of their son (which 

followed an unsuccessful attempt to do so), and her exboyfriend’s fiancé “corroborated that defendant’s fear was 

not unwarranted”]; People v. Borchers (1958) 50 Cal.2d 

321,328-329 [victim cheated on defendant, repeatedly urged 

him to kill her, and -- immediately before his fatal shot --

taunted him about being “‘chicken’” to shoot her]; People v. 
49

Bridgehouse (1956) 47 Cal.2d 406, 408, 410, 413 [victim had 

lengthy affair with defendant’s wife, who refused to agree to 

divorce or to comply with defendant’s wish that she not see 

victim in their minor child’s presence]; People v. Wharton

(1991) 53 Cal.3d 522, 571-572 [defendant’s killing of his 

girlfriend was preceded by weeks of provocation, during 

which defendant’s statements to psychotherapists indicated 

tension was building and he was losing control, and 

immediately preceded by his girlfriend throwing a book at 

him].)

In sum, because the jury could not reasonably have 

found in appellant’s favor on the objective element of the 

heat of passion theory, the court did not err by denying his 

request for a heat of passion instruction. Having rejected 

appellant’s claims of evidentiary and instructional error, we 

also reject his claim that he was prejudiced by the 

cumulative effect of the asserted errors. 

D.Stipulation to Facts Alleged in Count 7

Appellant contends the trial court prejudicially erred 

by accepting his stipulation to the facts alleged in count 

seven (misdemeanor hit and run) without obtaining a 

voluntary and intelligent waiver of his constitutional trial 

rights.

1. Principles

“‘Several federal constitutional rights are involved in a 

waiver that takes place when a plea of guilty is entered in a 
50

state criminal trial.’ [Citation.] These include the privilege 

against self-incrimination, the right to trial by jury, and the 

right to confrontation. [Citation.] . . . A stipulation that 

admits all of the elements of a charged crime necessary for a 

conviction is tantamount to a guilty plea. [Citations.] 

Accordingly, the record must demonstrate that the 

defendant voluntarily and intelligently waived his 

constitutional trial rights.” (People v. Farwell (2018) 5 

Cal.5th 295, 299-300 (Farwell).) In other words, “the record 

must affirmatively demonstrate that the defendant 

understood the agreement effectively extinguished his trial 

rights.” (Id. at 306.) 

Our Supreme Court’s decision in Farwell illustrates

the application of these principles to facts remarkably 

similar to those of the instant case. There, the defendant 

was charged, inter alia, with driving without a valid license. 

(Farwell, supra, 5 Cal.5th at 298.) The court rejected his 

offer to plead no contest to the charge, and “explained [his] 

basic trial rights” to him in discussing the prosecution’s plea 

offer on a separate charge, which he rejected. (Id. at 298, 

307.) During the defense case-in-chief, the defendant 

entered into a stipulation that he knowingly drove while his 

license was suspended -- a stipulation that “encompassed all 

of the elements of” the charge. (Id. at 298-299.) “When the 

stipulation was entered, the court did not advise the 

defendant of the constitutional rights implicated by a guilty 

plea or the stipulation. Nor did it solicit a personal waiver of 

those rights.” (Id. at 299.) The court instructed the jury to 
51

accept the stipulated facts as true, and the jury convicted the 

defendant on the stipulated charge. (Ibid.) The Court of 

Appeal upheld the conviction. (Ibid.) The court 

acknowledged the stipulation was tantamount to a guilty 

plea, but found the defendant had voluntarily and 

intelligently waived his trial rights, relying on: (1) the trial 

court’s instructions regarding his trial rights during jury 

selection, in the defendant’s presence; (2) the fact that the 

defendant entered into the stipulation in the midst of a jury 

trial; and (3) the defendant’s prior experience with the 

criminal justice system, which had resulted in two prior 

convictions. (Id. at 299, 306.) 

Our Supreme Court reversed in a unanimous opinion. 

(Farwell, supra, 5 Cal.5th at 308.) Declining to decide 

whether the facts on which the Court of Appeal had relied 

affirmatively demonstrated the defendant’s awareness of his 

constitutional trial rights “as a general matter,” the court 

held that the conviction could not stand because there was 

“no affirmative showing that [the defendant] understood he 

was waiving his trial rights by virtue of the stipulation

entered on his behalf.” (Id. at 306; see also id. at 307-308 

[concluding there was no affirmative evidence the defendant 

“understood his stipulation would conclusively establish all 

of the elements of the misdemeanor crime and make the 

guilty verdict a foregone conclusion”].) The court observed, 

“The [trial] court did not discuss the stipulation or its legal 
52

effect with [the defendant]. Nor did counsel confirm on the 

record that she had done so.”

13 (Id. at 307.)

2. Analysis

As in Farwell, appellant’s stipulation to the facts 

charged in count seven was tantamount to a guilty plea. As 

read to the jury, the stipulation provided that “the facts 

pertaining to count seven” were true. The jury must have 

understood this language to mean that the stipulation

“encompassed all of the elements of” the offense. (Farwell, 

supra, 5 Cal.5th at 298-299.) Accordingly, the conviction 

must be reversed unless the record contains affirmative 

evidence that appellant understood he was waiving his trial 

rights by virtue of the stipulation. (See id. at 300, 306.) 

As in Farwell, the record reveals no such affirmative 

evidence. When the stipulation was discussed and entered

into before and during trial, the trial court did not discuss 

the stipulation’s legal effect with appellant, and his counsel 

did not represent that he had done so. (See Farwell, supra, 5 

Cal.5th at 307; People v. Cross (2015) 61 Cal.4th 164, 180 

13 The court rejected a proposed assumption that counsel had 

discussed the stipulation’s legal effect with the defendant, 

reasoning that on the facts before it, which established that the 

defendant “would correctly have understood that . . . the 

prosecution bore the burden of proving him guilty” at the time his 

counsel entered the stipulation, the proposed assumption could 

not substitute for affirmative evidence that the defendant 

understood the stipulation’s legal effect. (Farwell, supra, 5 

Cal.5th at 307-308 & fn. 9.)
53

[finding no indication defendant’s stipulation to priorconviction allegation was voluntary and intelligent, where 

trial court did not ask whether defendant had discussed 

stipulation with counsel, ask any questions of defendant 

personally, or inform him of his trial rights].) Moreover, the 

manner in which the stipulation was discussed before trial 

might have misled appellant regarding its legal effect. His 

counsel rejected the prosecution’s request that he plead no 

contest to count seven, and confirmed the court’s impression 

that appellant did not “want to admit count seven” --

potentially obscuring the fact that the stipulation was 

tantamount to a guilty plea. Further, the prosecutor stated 

that “if he stipulates, then it will be up to the jury to find 

him guilty,” and neither the court nor appellant’s counsel 

clearly stated, in response, that the stipulation would make 

the jury’s verdict a foregone conclusion. 

We reject the People’s reliance on various comments 

and exchanges that made no reference to the stipulation, 

and on appellant’s prior criminal history (which was limited 

to his misdemeanor domestic violence conviction and an 

infraction conviction for speeding). Regardless of whether 

these comments, exchanges, and prior convictions 

demonstrated appellant was aware of his trial rights in a 

general sense, neither they nor any other evidence 

affirmatively demonstrated he understood he was partially 

waiving those rights by virtue of the stipulation. (See 

Farwell, supra, 5 Cal.5th at 306.) Accordingly, the

conviction on count seven must be reversed.
54

E. Sentences on Attempted Murder Convictions

Appellant contends the trial court erred by sentencing 

him to a term of 15 years to life on each of his attempted 

murder convictions, as the proper sentence on each 

conviction was seven years to life. The People concede the 

court erred. 

The parties are correct that the proper sentence on 

each conviction, as enhanced by the jury’s findings of 

premeditation and deliberation, was seven years to life. (See 

Pen. Code, § 664, subd. (a) [typically, punishment for 

premeditated attempted murder is life]; id., § 3046, subd. (a) 

[unless otherwise provided by law, minimum determinate 

term of life sentence is seven years].) A 15-years-to-life 

sentence applies only where the victim belonged to one of 

several enumerated categories of law enforcement officers. 

(Id., § 664, subd. (f) [sentence for premeditated attempted 

murder is 15 years to life if defendant knew or reasonably 

should have known that victim was peace officer, firefighter, 

custodial officer, custody assistant, or nonsworn uniformed 

employee of a sheriff’s department engaged in the 

performance of his or her duties].) Here, none of the victims 

belonged to any of the enumerated categories. The trial 

court appears to have been misled by the prosecutor, who 

erroneously identified the appropriate sentence on each 

attempted murder conviction as 15 years to life. 

On remand, the court must correct the sentences on 

appellant’s attempted murder convictions. We need not 

address appellant’s other sentencing contentions, as the 
55

court will have an opportunity to exercise its discretion 

regarding concurrent sentencing at the resentencing hearing, 

and appellant will have an opportunity to assert his inability 

to pay fines and fees. (See People v. Buycks (2018) 5 Cal.5th 

857, 893 [“when part of a sentence is stricken on review, on 

remand for resentencing ‘a full resentencing as to all counts 

is appropriate, so the trial court can exercise its sentencing 

discretion in light of the changed circumstances’”].)
56

DISPOSITION

Appellant’s conviction on count seven is reversed. His

other convictions are affirmed. The matter is remanded for 

further proceedings on count seven and for resentencing. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.