Filed 5/28/21 P. v. Sanchez CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHNNY JOSUE 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 appointment 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 Plaintiff and Respondent.

_________________________
2

A jury convicted Johnny Josue Sanchez of five counts of 

special circumstance murder and two counts of willful, deliberate, 

and premeditated attempted murder, after a deadly fire in the 

abandoned 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 “kill zone” 

instruction, and prosecutorial misconduct. We affirm.

BACKGROUND

An information charged Sanchez with five 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 five murder counts alleged the special circumstances

that Sanchez committed multiple murders, while engaged 

in committing arson. (§ 190.2, subds. (a)(3), (a)(17).) The 

information also charged Sanchez with the attempted, willful, 

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 an 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 building down. 

When Chief 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 people from second-story windows in the alley. 

Almost immediately, firefighters found a dead body in the secondfloor hallway. A woman pulled on Chief Moore’s coat and told 

him her friends were still inside. He stayed for almost 24 hours, 

and the next day specialized 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 

likely to start accidental fires.

LAFD Captain David Lindsay and his company responded 

to the scene around dinnertime. Fire 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 forced 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 burn, 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 firefighters 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 itself lights up and explodes.

The fire moved quickly through the building. It took 

three hours to put it out. A fast-moving fire could be caused 
4

by deliberately starting fires in multiple locations, and by using 

accelerants.

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 was unusual because there was not much to burn. A 

male Hispanic with short hair wearing jean shorts and no shirt 

was inside. Captain Soto told him to leave the building, but he 

turned away and walked back inside.

They took two water lines up the stairs, but the secondfloor fire was too big, and they had to back out of one room 

because of the intense heat. They pulled out when the incident 

commander sent in heavier streams. The firefighters gave up 

on saving the building, pulled everyone out, and went into 

defensive mode to protect 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-foot extendable ladder up to the window, broke the glass, and 

helped a Black woman and a Hispanic man down. Someone else

yelled his brother was in another room in the back, and the 

firefighter saw a hand hanging out of the window between 

security bars. He put the ladder up to that window, and another 

firefighter climbed up and cut the bars with a rotary saw.

When the 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 man out. The man had 

cut his arm on some metal and nearly passed out. The firefighter 

carried him down and dragged him to the street corner. When 
5

he 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 body at the bottom of the stairs.

A Los Angeles Police Department (LAPD) officer arrived 

at the scene, and Nivea and Flaco2 pointed at Sanchez, who 

had a shirt wrapped around his nose and mouth. Nivea said:

“ ‘That’s the guy 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 swaying back and forth. 

Looking at the officer, 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, who 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 sleeping bag stacked on 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 poisoning, smoke inhalation, 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 Flaco 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, going through the skin into muscle and bone. He died of 

his burns and smoke inhalation.

LAFD arson 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 morning when 

the light was better and the fire was completely out. Mitchell’s 

body was still in the lobby by the stairs. Firefighters wrapped 

the body in a sheet and moved it outside for the coroner.

The building’s roof had collapsed and there were severe 

burn patterns above the 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 and worked its way down the stairs and out through the 

roof, and had been most severe on the 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. The front 

corner of the upstairs exterior facing Eighth Street and the alley

had similarly heavy fire damage. He believed two separate fires

had started in the second-story hall and then moved into the 

rooms.

Jimenez looked for anything that could have started or 

accelerated the blazes, eliminating an electrical cause because 

the power was out. He found no candles or candle wax, burnt 

cigarettes, or cooking devices. Nothing showed the fires were 

natural or accidental. His opinion was the fire was incendiary, 

with two separate fires intentionally set at the same time.
7

Someone took an open flame to available combustibles, and 

the fires burned rapidly. A K-9 detected no accelerants such as 

gasoline or lighter fluid, and Jimenez found no gas cans. Trash 

throughout the building could ignite and feed 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 

could be a can of gasoline. Jimenez responded he had no idea.

b. Building residents and eyewitnesses

i. Nivea

Nivea testified about 10 people lived in the building off 

and on, including Sanchez, Mitchell (whose nickname was 

Jokerface), a homeless couple, and Jared Muse. Other people 

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 face. After that,

Sanchez was always hostile to Nivea and would tell her to 

get 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 blocked

the door on the other side of the room and she 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. She sprayed him with Mace and 
8

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 through the door into 

the hallway.

Nivea’s friend Flaco was in the hallway. He asked her 

what 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 was a pile of 

trash two feet high out in the hall in front of the door. Nivea

could hear Sanchez outside the room screaming he was going 

to kill her, and it sounded like he was throwing metal 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 cell phones and tablets. 

Smoke 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, but the trash pile right 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 the 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: “ ‘He 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 started 
9

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 building for three months. 

He had his own lock 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 

Iowa and an African-American also lived in the building.

On the 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 his door when

Nivea came out and invited her into his room, locking and bolting 

the door. They talked for 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 out and saw smoke. When he 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. The firefighters 

broke the window and helped Nivea and Flaco down the ladder.

Once outside, Flaco could hear Muse screaming from inside 

the building. Sanchez came out of the alley and walked 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. Jared Muse

Muse lived in the building for three to six months. He 

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 the fire, Muse entered the building around 

sunset. He and Mitchell were in the room with the door open 

when they noticed smoke on the ceiling. Mitchell ran into the 

hall and screamed, and smoke 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 Sanchez 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 Mendez 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 into her dining room, looked out of 

the open window facing the alley, and saw the building on fire. 

Sanchez was running 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 afraid and reluctant to testify.

Eight days after the fire, Mendez told LAPD Detective 

Frank Carrillo she asked Sanchez who started the fire, and 

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 on 

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 operator: “[T]he guy who set the building 
11

on fire is a cholo. And right now since I was telling my kids 

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 one 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 asking 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 then to shower 

or eat. When Mendez saw the fire, she was worried because she 

didn’t know where Virus was, but later she learned he was safe. 

She also noticed her fire extinguishers were gone.

2. Defense case

a. Sanchez

Sanchez testified in his own defense. Six weeks before 

the fire, he and his girlfriend argued inside the building. She 

slapped him, he pushed her back, and a Black transgender 

person he called “Queen” (Nivea) got between them and told him 

not to push his girlfriend. Nivea then asked if his girlfriend

wanted to smoke 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 stopped

her from going through the blocked door, and she yelled at him,
12

hit his left eyebrow with a flashlight, and sprayed him with 

pepper spray. He tried to fight back but his eyes burned. Nivea 

went back out the open door and Sanchez ran out of the building.

He went to a liquor 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. 

After 15 to 20 minutes at the store he realized he didn’t have 

his phone, and went back to the building to find it. He walked 

through the back of the alley and saw the building was on fire. 

Mendez was standing at her window. She said she’d seen him 

there before, and asked if he had anything to do with the fire. 

He said no, and suggested her sons (who were homeless and 

stayed 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 dumbass,’ ” and said she was calling the police.

Mendez commented on Sanchez’s cut eyebrow. He 

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. 

Look 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. He may have 

said something about “burning” Nivea, but he meant with bullets.

Sanchez could hear people yelling inside the burning 

building. Mendez pointed at him and said he started the fire. 

Two of her sons started to fight with him for disrespecting their 

mother.

Thinking a friend was inside, Sanchez went back into the 

building. To protect himself from the smoke he took off his shirt
13

to cover his face. Firefighters blocked him from the second 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 Carrillo, 

his partner, and Jimenez, the arson investigator.

On cross-examination, Sanchez claimed he was not 

homeless but sometimes stayed in the building. He 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 which room he was in the 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 he told Mendez he wanted to “burn” Nivea, he meant with

bullets.

He 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 the alley, where he talked to Mendez as she stood at her 

window. He did not remember telling Detective Carrillo 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 half 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 for 
14

three hours, leaving around 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 the day after the fire, Sanchez consistently 

denied 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-floor 

room when someone told him there was a fire, they could smell 

the smoke, and they needed 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 Carrillo testified he obtained and watched

video 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 from 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., when a man wearing clothing 

matching what Sanchez wore walked 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 walking in the alley, 

but the video was not admitted into evidence.
15

During two interviews on June 14, Sanchez did not say that 

he went 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 

fire. Sanchez said Nivea 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 started with 

gasoline.

4. Verdict 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 possibility 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 imposed restitution, fines, 

and fees.

Sanchez filed this timely appeal.

DISCUSSION

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. Defense 

counsel had learned an alternate juror (the alternate) told two 

deputy district attorneys (DAs) she 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 disclose the information. The trial court 

denied the petition for disclosure without prejudice because it 

was not supported by declarations.
16

Sanchez filed a second petition, attaching an email from 

DA Leslie Hinshaw stating the alternate was a civilian employee 

of the sheriff’s department who provided security on the DAs’

floor. DA Hinshaw knew the alternate had been on jury duty, 

and when she saw her back at work and talking to DA Jane 

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 together.” ’ ” At lunch, she 

told the other jurors about 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 hadn’t 

shared that, and she and DA Brownstone walked away.

DA Brownstone’s email confirmed the alternate was 

assigned to the security desk in her lobby. The alternate 

volunteered 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 basically created a kill zone.” DA Brownstone 

asked if the alternate had been substituted in to deliberate. 

When she answered she had not, the DAs ended the conversation, 

believing the alternate might have inadvertently disclosed 

juror misconduct.

The trial court found good cause to set a hearing on the 

second petition, and sent 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 remember 

going to lunch with other jurors. No juror ever 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 lunch 
17

with them. She did not remember speaking to any deliberating 

jurors or to the DAs.

DA Brownstone testified she did not ask the alternate 

how she knew the jury was split. She later spoke with her 

superior because she was concerned. DA Hinshaw testified she 

thought the alternate’s statement that she talked to other jurors 

about the kill zone meant the alternate told them Sanchez was 

guilty. Afterwards she told DA Brownstone the alternate juror 

“had potentially spoken to deliberating jurors during trial” at 

lunchtime, and then the jurors returned to deliberating. This 

was misconduct, so DA 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, but found 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 all the jurors.

b. Juror testimony

On July 19, 2019, the 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 testified they did not 

remember 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 one of the remaining jurors. Sanchez was present. Four 

jurors testified they had no contact with the alternate during 
18

deliberations, and knew of no other jurors who had contact with 

the alternate or discussed the case outside the jury room.

Juror No. 2 had been an alternate juror (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 gathered to go 

to lunch and talk. Before deliberations began, 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 deliberations, Juror No. 2 replied: 

“I think so. I mean, I don’t—you know. I just kind of kept my 

distance with her.” The 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 building.’ ‘I know.’ ‘I know.’ ” 

It could have been on a Thursday before deliberations began; 

Juror No. 2 could not remember.

The prosecutor pointed out closing argument ended on

Wednesday before lunch, and deliberations began after lunch. 

The only lunch period 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 market 

on the Thursday during 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 no.” Asked again if they had lunch together after 

deliberations 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 how 
19

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 tapered over time toward guilty) 

had been discussed during a lunch with the alternate present. 

The jurors who held out for innocence were not at the lunch. 

The alternate never discussed specific 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 deliberations or come up 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 days they had to be there. 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 present. The juror had no contact with the alternate 

jurors once deliberations began, knew of no deliberating jurors 

having such 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, arguing 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 theories, evidence, and 

their opinions.” The DAs were reliable, and the alternate lied 

when she said she did not remember telling the DAs about 

the deliberations. Juror misconduct included the alternate’s 

interaction with the deliberating jurors; the deliberating jurors 

sharing information about the vote splits 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 not heard anything from an outside source or relayed 

information about deliberations. But something improper 

occurred and the jury was covering it up.

In opposition, the prosecution argued there was no 

competent evidence of juror misconduct. While the content 

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 court decided the

statements 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 learned 
21

about the vote split sometime between Wednesday afternoon and 

lunchtime on Thursday. Although the alternate and the jurors 

testified under oath they did not talk about the split, the trial 

court should “rely on its gut, experience” despite the jurors’ 

“complete denials” 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 prosecution had the 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 the 

alternate described to the DAs 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 testified she heard the alternate’s 

opinions, and she denied ever discussing those opinions 

during deliberations. No prejudice occurred, because it 

was not substantially likely one or more deliberating jurors 

was actually biased against Sanchez.

The trial court 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.

But the extent of the misconduct, and its impact, were 

a different 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 morning to resume 

deliberations. At 10:45 a.m. they heard the readback they had 
22

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 

deliberations, 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 testified they discussed any 

split with the alternate. They would have had very little time 

or opportunity to do so. There was no 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 was Juror No. 2. While other jurors might

have been present, they may not have heard the conversation.

The alternate’s credibility was “seriously in question,”

and the court did not believe events happened as the alternate 

described them to the DAs. No evidence 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 deliberations. The misconduct 

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 reached 
23

a verdict after the readback, and “I don’t believe they reached

a verdict based on what transpired at that 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 express 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 

entire record . . . indicates 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.4th 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 reweigh 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 demeanor valuable information 

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 heard 
24

the 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 credible when she testified under oath that none of the

alternate’s statements in any way affected her deliberations,

or came up in the jury room. Juror No. 31, the other alternate, 

testified he heard the alternate express her opinion when they 

were alone before the start of deliberations. Juror No. 31 and 

the alternate did not participate in the deliberations. Although 

Sanchez’s new trial motion repeatedly accused all the jurors 

of lying about their own and the alternate’s conduct, we repeat 

we do not reweigh 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 the 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 misconduct: 

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 discussed the splits 

with the alternate. Yet all 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 she had lunch 

with the alternate on the Thursday before or after deliberations 
25

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 the 

alternate could have learned of that split only after the verdict. 

Substantial evidence supports that factual finding.

Sanchez 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 other 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.5th 70, 120; People v. Holloway (2004) 33 Cal.4th 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 Sanchez.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, the strength 

of the evidence at trial is relevant to assessing whether jury 

misconduct prejudiced the defendant. (People v. Solorio (2017) 

17 Cal.App.5th 398, 408.) This was not the basis for the trial 

court’s ruling, nor is it the reason 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 oath because this is in 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., defense 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 hearing. 

Each of the six jurors stated they did not remember having lunch 

with alternate jurors during deliberations or hearing 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 critical stage of the 

trial, including during the taking of evidence.” (People v. Bell, 

supra, 7 Cal.5th at p. 114.) A competent defendant may waive 

that right if the waiver is knowing, intelligent, and voluntary, 

and an unduly disruptive defendant may be removed from 

the courtroom if after a warning by the court he continues his 

disruptive behavior. (Id. at pp. 116-117.) The right to be present 

exists only at critical stages of the trial, “ ‘in which a defendant’s 

“ ‘absence might frustrate 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 charge’ [citation].” ’ ” (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.) Even if he 

has the 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.4th 1229, 1357.)

The hearing took place after the guilty verdicts, and was 

designed 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 waiting to 

be questioned, and the 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 Walker v. Lockhart (8th Cir. 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 remarked she could kill 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. Walker’s counsel stated he was satisfied from the jurors’ 

responses they would deliberate based only on the 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 ineffective assistance based on counsel’s 
28

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 failure 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 

Supreme Court or other authority. (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 

present over a defense objection 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 

proceedings 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. [Citations.] The absence of Abbott 

during the proceeding in chambers 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 murder and attempted murder 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 other 

jurors were examined. His argument that he was necessarily 
29

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, defense counsel argued 

insufficient evidence supported Sanchez’s conviction on count 7 

(attempted murder of Flaco). No evidence showed 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 that Sanchez had stayed 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 inside was in the zone of fatal harm.

The court concluded the evidence supported a finding that 

in order to kill Nivea, Sanchez intended to kill everyone in Flaco’s

room by setting two fires in such a way that no one inside could

escape. The jury could draw the reasonable inference that 

Sanchez knew that Flaco was in his room with Nivea.

On appeal, 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 target. Here there was another reasonable 

inference—Sanchez 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 kill zone theory for establishing the specific intent to kill 
30

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 of 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 insufficient 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 record 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), review granted 

May 13, 2020, 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 constricted 

is a relevant consideration. (In re Rayford (2020) 50 Cal.App.5th

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 were actually within 

the zone of harm.’ ” (Cerda, at p. 20.) While the defendant’s 
31

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. (Ibid.)

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 Nivea, she and Flaco talked for some time. Shortly 

after they no longer heard Sanchez 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 firefighter 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 target, 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 that 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 fire through the window of another room in 

the burning building). It would be unreasonable to infer that 
32

Sanchez intended to kill only Nivea and not anyone else inside 

Flaco’s room. The evidence supported a guilty verdict on count 7.

Sanchez argues even if a kill zone instruction 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. 600: 

“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 Roberts by killing everyone in 

the kill zone, then you must find the defendant 

not guilty of attempted 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 kill 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 Sanchez 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 

legally warranted and in fact 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. 609.) 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.5th at pp. 782-783.) Here the instruction 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 reasonable 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 attempted murder if he specifically 

intended to kill Flaco. It is clear beyond a reasonable doubt 

that the jury would have convicted Sanchez of attempted murder 

because he intended to kill Flaco. He set fire to a big pile of 

trash in the second-floor hall directly outside the door of Flaco’s 

adjoining room; he set another fire in another area of the hall; 

and Mendez told the operator Sanchez said he had to kill 

everyone in the building. Given the evidence that Sanchez set 

a blaze in the hall blocking anyone from exiting Flaco’s second-
34

story, locked room, even without a kill zone instruction, the 

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 location are not relevant.” 

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 defense had offered 

as a witness 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 agreed to allow the 

defense to ask the investigator if the likelihood of accidental fire 

was greater when homeless people were staying in the building, 

and until the court heard 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 asked the arson investigator 

Jimenez whether homeless people could be careless with 

cigarettes and cause a fire, and the court sustained a relevance 

objection by the prosecutor.
35

Sanchez argues that fires were “shockingly common” 

in the building and the court violated the law and the federal 

constitution 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 probative 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 that 

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 did 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 

application of the rules 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 jury, Detective Carrillo 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 the 
36

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 from 

Jose’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 obtained the video eight days 

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 

contemporaneously recorded data. (People v. Goldsmith (2014) 

59 Cal.4th 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 images simply because they 

theoretically can be manipulated. (Ibid.; People v. Tran (2020) 

50 Cal.App.5th 171, 191.) The jury could decide what weight 

to give the testimony and the photo stills, 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 someone 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

instructed not to speculate. 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. And 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 misconduct 

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 functioning of the adversarial 

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 without witness 

testimony did not make the trial fundamentally unfair. The 

evidence that Sanchez set the fire was strong, including his 
38

own statements. The presence or absence of a lighter or gas can 

after the fire was out neither proves nor disproves Sanchez’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 cumulative error requires reversal.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE 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 

Constitution.