Filed 1/5/16 P. v. Sanchez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL SANCHEZ,

Defendant and Appellant.

F068319

(Super. Ct. No. BF148303A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. 

Friedman, Judge.

Dale Dombkowski, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, 

for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

A jury found defendant Manuel Sanchez guilty of attempted murder (Pen. Code, 

§§ 664, 187, subd. (a), count 1),1 and assault with a firearm (§ 245, subd. (a)(2), count 2). 

In addition, the jury also found true an enhancement allegation that defendant personally 

discharged a firearm which proximately caused great bodily injury during the 

commission of attempted murder (§ 12022.53, subd. (d)).

Defendant was sentenced to a prison term of nine years on count 1, plus 25 years 

to life for the section 12022.53, subdivision (d) enhancement. A term of four years was 

imposed on count 2, which was stayed pursuant to section 654.

On appeal, defendant contends: (1) the trial court abused its discretion by denying 

his motions for mistrial; (2) the enhancement allegation should be reversed because the 

trial court erred in failing to define “proximate cause” sua sponte, and the court did not 

adequately respond to the jury’s request for a definition of the term; and, (3) defense 

counsel was ineffective as a result of the foregoing issues. We affirm.

FACTS

On April 26, 2013, sometime after 9:00 p.m., Sara Gamino, Gamino’s son, 

Jennifer J., and Stephanie J., drove to Jose C.’s grandmother’s home to drop off some 

pain medication to Jose C. and to give him a ride home. Gamino is Jose C.’s girlfriend, 

and Jennifer J. and Stephanie J. are his sisters. Jose C.’s mother, Marebel Nevarez, was 

also present. Jose C. crossed the street to meet Gamino at her car, but after retrieving his 

medication, decided not to ride home with Gamino.

As he crossed the street to go back inside his grandmother’s house, a black Nissan 

Altima drove by, nearly hitting him. Jose C. exchanged words with the vehicle’s 

occupants and the vehicle stopped.

 

1All undesignated statutory citations are to the Penal Code unless otherwise stated.
3.

Defendant exited the Altima from the passenger’s side, aimed a rifle at Jose C., 

said, “‘now what,’” and fired multiple shots. Jose C. was struck once in his left shoulder 

and once in his left buttock. Defendant got back into the Altima and fled the scene.

Gamino followed the Altima in her vehicle. She believed she recognized the 

shooter as defendant, a Colonia Baker criminal street gang member who goes by the 

street moniker of “Flaco.” During the pursuit, the shooter stuck his gun outside the 

vehicle’s window and aimed it at Gamino’s car. As a result, Gamino turned left and lost 

sight of the Altima. She dropped off her son at her mother’s house and made two other 

stops to allow some time to pass before she drove to defendant’s house, where she had 

been on a prior occasion. When she arrived at defendant’s home, she saw the Altima 

from the shooting parked outside.

Officer Ryan Vaughan of the Bakersfield Police Department interviewed Jose C. 

at the scene of the incident. Jose C. told Vaughan that earlier that day,2 a man named 

Erik Galvan was stabbed in the parking lot of Gamino’s apartment complex. Galvan is 

friends with Gerardo C. (Jerry), a teenager Jose C. does not get along with. Jerry is also 

defendant’s nephew. After the stabbing incident, several individuals made threats against 

Jose C. Jose C. also began to fear defendant.

The following day, Vaughan interviewed Jennifer J. She informed Vaughan that 

Gamino recognized the shooter as defendant.

Several days after the shooting, Vaughan interviewed Jose C. a second time. 

Jose C. identified the shooter as defendant in a photo lineup. At trial, he claimed he 

could not identify the shooter, but testified his “homeys” told him to plan on moving if he 

snitched.

Gamino’s testimony as to the identity of the shooter wavered. During a photo 

lineup conducted several days after the shooting, she identified the shooter as defendant 

 

2

Jose C. testified at trial that the stabbing occurred on the same day of the shooting, but 

subsequently testified the stabbing occurred a few weeks prior to the shooting.
4.

with 100 percent certainty. However, prior to testifying, Gamino told the prosecutor 

defendant was not the shooter. On direct examination, she positively identified 

defendant, but on recross-examination, she indicated she saw someone who looked like 

defendant that could have been the shooter. Gamino testified she was afraid of being 

labeled a snitch for fear of retribution.

Nevarez was able to positively identify defendant as the shooter in a photo lineup

and at trial.

Jennifer J. immediately recognized defendant in a photo lineup and at trial.

DISCUSSION

I. Motions for Mistrial

A trial court should only grant a motion for mistrial when the opportunity for a fair 

trial has been irreparably lost and cannot be cured by admonition or instruction. (People 

v. Avila (2006) 38 Cal.4th 491, 573.) “‘Whether a particular incident is incurably 

prejudicial is by its nature a speculative matter, and the trial court is vested with 

considerable discretion in ruling on mistrial motions.’” (Ibid.) Accordingly, we review a 

trial court’s ruling on a motion for mistrial for abuse of discretion. (People v. Valdez

(2004) 32 Cal.4th 73, 128.) Under this standard, we will not disturb the trial court’s 

ruling “‘unless the court exercised its discretion in an arbitrary, capricious, or patently 

absurd manner that resulted in a manifest miscarriage of justice.’” (People v. Dunn

(2012) 205 Cal.App.4th 1086, 1094.)

A. First Motion for Mistrial

In April of 2013, defendant received a ride home from a man who was stopped 

and arrested for illegal possession of a firearm. Defendant was neither arrested nor 

charged in connection with the incident. The court granted defense counsel’s motion in 

limine to exclude evidence of the event, reasoning that because the firearm was 

concealed, no reasonable inference could be drawn that defendant had any knowledge of 

the weapon.
5.

During trial, the prosecutor asked Officer Vaughan whether he was present for 

defendant’s arrest on May 8, 2013. Vaughan stated he was present and added, “I also 

contacted [defendant] on a separate date in which a young man fled from the vehicle he 

was in carrying a firearm.” Outside the presence of the jury, defense counsel moved for 

mistrial. The court found Vaughan’s comment was not deliberately elicited, ordered it 

stricken, admonished the jury, and denied the motion.

Defendant argues the challenged testimony was incurably prejudicial and, as a 

result, his conviction should be reversed. We disagree.

A witness’s inadvertent or volunteered statement can provide the basis for a 

finding of incurable prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565.) A 

statement “exposing a jury to a defendant’s prior criminality presents the possibility of 

prejudicing a defendant’s case and rendering suspect the outcome of the trial.” (People v. 

Harris (1994) 22 Cal.App.4th 1575, 1580-1581 [witness’s reference to defendant’s 

parole officer on cross-examination was improper but resulted in harmless error]; People 

v. Valdez, supra, 32 Cal.4th at p. 124-125 [officer’s statement he interviewed defendant 

at prison was error but cured by jury admonition]; People v. Morgan (1978) 87 

Cal.App.3d 59, 76, disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 

480, 498 [testimony referring to defendant’s parolee status was inadmissible character 

trait evidence, but did not constitute reversible error].)

While the challenged comment here was subject to the court’s in limine ruling, we 

are not persuaded it was incurably prejudicial. Vaughan’s vague and fleeting comment 

made no reference to any prior criminal conduct by defendant, a point the trial court

made clear in its prompt admonition to the jury, stating, “There’s absolutely no 

knowledge of any alleged possession of [a] concealed weapon on the part of [defendant]. 

Give it no weight or regard.” The jury is presumed to be reasonable and to have followed 

the trial court’s instructions and advisements. (People v. Anzalone (2013) 56 Cal.4th 

545, 557; People v. Thomas (2012) 54 Cal.4th 908, 940; People v. Harris (1994) 9 
6.

Cal.4th 407, 426.) In the absence of evidence to the contrary, we will presume the jury 

here followed the court’s instruction.

Moreover, the jury heard evidence defendant was involved with the Colonia 

Bakers criminal street gang, and the gang’s primary activities involved the possession 

and use of illegal firearms. We fail to see how Vaughan’s vague reference to the past 

incident would be prejudicial in light of defendant’s association with a criminal street 

gang that uses firearms to facilitate crimes such as murder, assault, robbery, burglary, and 

witness intimidation.

We also find no evidence the challenged comment was deliberately elicited by the 

prosecution, or the comment was intentionally volunteered by Vaughan to cause 

prejudice, as defendant argues. Not only was Vaughan’s testimony regarding the incident 

vague, the prosecutor informed the court he had not explained the court’s in limine ruling 

to Vaughan.

Because there is no evidence the challenged comment was either deliberately 

elicited or offered, the jury was exposed to evidence defendant was involved with a gang 

whose primary activities included the possession of illegal firearms, in addition to the fact 

the court provided a clear admonition to the jury, we reject defendant’s argument the trial 

court committed reversible error by denying his motion for mistrial.

B. Second Motion for Mistrial

During recross-examination, defense counsel asked Vaughan whether Jose C. had 

heard of defendant and of Flaco, defendant’s street moniker. Vaughan replied in the 

affirmative. Defense counsel then asked whether Jose C. had seen Flaco before. Officer 

Vaughan responded, “I believe [Jose C.] said that some of his cousins were in jail for 

doing a drive-by shooting on Flaco.”

Defense counsel moved for a mistrial outside the presence of the jury, arguing the 

testimony was prejudicial. The court held the testimony was nonresponsive, but not 

prejudicial, and denied defendant’s motion. The court also ordered the testimony stricken 
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and promptly admonished the jury to “give neither the answer nor the question any 

weight whatsoever.”

Defendant asserts his motion for mistrial was improperly denied. He specifically 

argues the comment supplied the jury with a motive for defendant to shoot Jose C.: 

retribution for the drive-by shooting Jose C.’s cousins perpetrated against defendant. He 

also contends the challenged comment was incurably prejudicial. We disagree.

No evidence supports defendant’s argument that Vaughan’s comment was 

prejudicial. Although the evidence was previously excluded as hearsay, it was not 

subject to a motion in limine.

Further, while defendant argues the comment supplied the jury with a motive for 

the shooting, the jury was already exposed to evidence suggesting the shooting was 

retaliation for a stabbing occurring earlier that day. Jose C.’s friends stabbed a friend of 

defendant’s nephew, Jerry, sometime prior to the shooting. After the stabbing, several 

individuals made threats against Jose C. Jose C. also testified that after the incident, he 

was afraid to contact defendant.

We also reject defendant’s argument the prosecutor had any prior knowledge 

Vaughan was going to testify about the drive-by shooting, or that Vaughan deliberately 

committed misconduct to prejudice the jury. First, Vaughan’s comment occurred during 

cross-examination, and as the trial court found, it was not responsive to defense counsel’s 

question. Second, the trial court ordered the comment stricken and admonished the jury 

to give it no weight. Even assuming the testimony were intentionally designed to cause 

prejudice, defendant has presented no evidence the jury was incapable of following the 

court’s admonition. We find no error from the trial court’s denial of defendant’s motion 

for mistrial.
8.

II. The Court’s Instruction on Proximate Cause

Defendant was charged with an enhancement allegation for personally and 

intentionally discharging a firearm that proximately caused great bodily injury during the 

commission of attempted murder (§ 12022.53, subd. (d)).

During deliberations, the jury sent the court a note requesting the definition of 

“proximately,” which appeared within a verdict form relating to the enhancement. The 

verdict form provided the following: “We, the Jury, ... find it to be true that [defendant]

did personally and intentionally discharge a firearm which proximately caused great 

bodily injury or death to another person, ... during the commission of Attempted Murder, 

within the meaning of ... section 12022.53(d) ....”

In response, the court read the following paragraph from CALCRIM No. 3149 to 

the jury: “An act causes great bodily injury if the injury is the direct, natural, probable 

consequence of the act and the injury would not have happened without the act. A 

natural and probable consequence is one that a reasonable person would know is likely to 

happen if nothing unusual intervenes.” After deliberations concluded, the jury found the 

enhancement allegation true.

Defendant contends the trial court erred in failing to instruct the jury sua sponte on 

multiple causes, the instruction under the bracketed paragraph of CALCRIM No. 3149 

beginning with “There may be more than one cause ....” We find no error.

The court has a sua sponte duty to instruct on the definition and application of 

proximate cause if causation is at issue. (People v. Bland (2002) 28 Cal.4th 313, 335

(Bland).) In such circumstances, the court must instruct under the paragraph in 

CALCRIM No. 3149 beginning with “An act causes ....” Under this paragraph, an act 

causes great bodily injury if it sets in motion a chain of events producing great bodily 

injury as a natural and probable consequence of the alleged act, and without such act, 

great bodily injury would not have occurred. (Bland, at p. 335.) This instruction may be 

required, for example, where a bullet discharged by a defendant does not strike the 

victim, but the act is nonetheless a proximate cause of the victim’s injury. (See, e.g., 
9.

People v. Palmer (2005) 133 Cal.App.4th 1141, 1153-1154 [finding defendant’s act of 

discharging a firearm proximately caused officer’s injury, although officer was injured 

diving for cover rather than from being shot].)

When the evidence suggests there may have been multiple causes of great bodily 

injury, the bracketed paragraph in CALCRIM No. 3149 beginning with “There may be 

more than one cause ...” must also be given.

For example, in Bland, a section 12022.53, subdivision (d) enhancement was at 

issue. The defendant, an Insane Crips gang member, was standing with another man 

when the victim pulled up beside them in his vehicle. (Bland, supra, 28 Cal.4th at p. 

318.) The defendant asked the victim if he was “Kebo,” a member of the Rolling 20’s 

Crips gang. Once the victim confirmed his identity, the defendant began shooting at the 

victim’s vehicle. As the victim drove away, the defendant’s companion also began firing 

at the vehicle. The victim died as a result of a gunshot wound; two other victims in his 

vehicle were also shot, but survived. (Ibid.) The evidence did not establish whose bullets 

struck the victims. (Id. at p. 334.) Although the court did not provide an instruction on 

proximate cause, the jury found the sentencing enhancement allegation true. (Id. at p. 

318.)

Our Supreme Court concluded the trial court erred in not defining proximate 

causation because it is a term having a technical meaning most jurors would not 

understand. (Bland, supra, 28 Cal.4th at p. 335.) However, it found the error was 

harmless, reasoning, “jurors who improperly limit their discussion of what constitutes 

proximate cause will not find causation where it does not exist,” because the term is 

broader than what jurors commonly understand causation to mean. (Id. at p. 338.)

Unlike Bland, causation was not at issue in this case. In People v. Palmer, supra, 

133 Cal.App.4th at page 1153, the Second Appellate District court explained that 

proximate cause is at issue in two circumstances, “first, ... where there is more than one 

shooter; and second ... where the bullet itself does not hit the victim, but the discharge of 
10.

the firearm is nonetheless the proximate cause of the injury.” Because no evidence even 

suggested the participation of more than one shooter, as in Bland, or that the bullets 

discharged by defendant’s firearm failed to hit the victim, this case does not fall within 

either scenario. The issue in this case was the identity of the shooter. Accordingly, the 

court had no sua sponte duty to instruct on proximate cause, nor was the CALCRIM 

No. 3149 instruction on multiple causes appropriate here. Indeed, the trial court could 

simply have stricken the word “proximately” from the verdict form in response to the 

jury’s question.

We also find the instruction given here could not have conceivably been 

misunderstood so as to prejudice defendant. As the Bland court stated, proximate 

causation is broader than what jurors commonly understand it to mean, and “jurors who 

improperly limit their discussion of what constitutes proximate cause will not find 

causation where it does not exist.” (Bland, supra, 28 Cal.4th at p. 338.) Even assuming

the facts of this case warranted an instruction on multiple causes, the jury need only have 

concluded defendant’s act of shooting Jose C. was a substantial factor, i.e., more than a 

trivial or remote factor, in causing Jose C.’s injuries. (Id. at p. 335.) Accordingly, we 

find no error in the trial court’s instruction.

III. Ineffective Assistance of Counsel

Defendant contends that if defense counsel failed to proffer an adequate argument, 

to request an instruction, or to cite to adequate authorities, ineffective assistance of 

counsel was rendered. His contention is meritless.

A defendant claiming ineffective assistance of counsel in violation of his Sixth 

Amendment right to counsel must show (1) defense counsel’s performance fell below an 

objective standard of reasonableness under prevailing professional norms; and, (2) the 

deficient performance resulted in prejudice by depriving the defendant of a fair trial. 

(Strickland v. Washington (1984) 466 U.S. 668, 687; In re Jones (1996) 13 Cal.4th 552, 

561.) A criminal defendant has the burden of establishing, based on the record and on the 
11.

basis of facts, that defense counsel rendered ineffective assistance. (People v. Mattson

(1990) 50 Cal.3d 826, 876–877.)

Defendant fails to carry his burden of establishing defense counsel rendered 

ineffective assistance of counsel. By not specifying the basis for his claim, he essentially 

asks this court to determine how defense counsel committed prejudicial error. However, 

the burden rests with defendant to “affirmatively demonstrate error through reasoned 

argument, citation to the appellate record, and discussion of legal authority.” (Bullock v. 

Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) This court is not required to 

search the record for facts in support of defendant’s contention defense counsel’s 

performance was deficient. (In re S.C. (2006) 138 Cal.App.4th 396, 406.)

Further, because we find no error, we also find no prejudice. To prove prejudice, 

the record must affirmatively demonstrate “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 

(Strickland v. Washington, supra, 466 U.S. at p. 694.)

As previously set forth, we reject defendant’s arguments his motions for mistrial 

were improperly denied, or that the court erred by failing to adequately instruct the jury 

on causation. Thus, we find no basis from which to infer defendant received ineffective 

assistance of counsel based on the foregoing arguments.

DISPOSITION

The judgment is affirmed.

___________________________

PEÑA, J.

WE CONCUR:

________________________________

FRANSON, Acting P.J.

________________________________

SMITH, J.