Filed 10/8/24

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

JOEL SANMIGUEL,

Defendant and Appellant.

2d Crim. No. B328160

(Super. Ct. No. 2022002116)

(Ventura County)

Joel SanMiguel appeals from a judgment following a trial 

at which the jury found him guilty of willful, deliberate, and 

premediated attempted murder (Pen. Code,1 §§ 664, 187, subd. 

(a), 189) (count 1) and assault with a deadly weapon (id., § 245, 

subd. (a)(1)) (count 2). As to both counts, the jury found true 

allegations that SanMiguel personally inflicted great bodily 

injury. (Id., § 12022.7, subd. (a).) As to count 1, the jury also 

found SanMiguel personally used a deadly and dangerous 

* Pursuant to California Rules of Court, rule 8.1110, this 

opinion is certified for partial publication. The portions of this 

opinion to be deleted from publication are identified as those 

portions between double brackets, e.g., [[/]].
2

weapon. (Id., § 12022, subd. (b)(1).) The court sentenced 

SanMiguel to a total term of 11 years to life. We affirm.

FACTS

Rosario Soto lived with his girlfriend, Emperatriz 

Marroquin, at a homeless encampment in Thousand Oaks known 

as “the Jungle.” Marroquin had been friends with SanMiguel for 

three or four years and knew him as “Capi.” SanMiguel did not 

live at the Jungle but visited frequently.

Events of January 8, 2022

At about 8:00 p.m. on January 8, 2022, Soto and Marroquin 

were in their small, wooden home at the Jungle when they heard 

a disturbance. They stepped outside, and Soto put on a 

headlamp. Marroquin saw SanMiguel and Hugo Arias running 

toward a man she knew as Mike. SanMiguel was holding a thick, 

black metal bar and Arias had a baseball bat. SanMiguel and 

Arias attacked Mike, but he was able to get away.

Soto’s headlamp illuminated the attack. SanMiguel

approached Soto and told him to turn off the headlamp. Soto 

tried to comply but could not turn it off. SanMiguel struck Soto 

in the head with the metal bar. Soto fell to the ground 

unconscious.

Marroquin begged SanMiguel to leave Soto alone, but 

SanMiguel took the bat from Arias and struck Soto on his legs or

feet with it. Still unconscious, Soto did not react. Marroquin got 

down on the ground and placed her body over Soto to protect him. 

SanMiguel struck Soto on his head right next to Marroquin’s 

face. SanMiguel told Marroquin to move. She did not move and 

again begged SanMiguel to leave Soto alone. SanMiguel and 

Arias walked away.
3

Marroquin called 911. She told the operator that the 

person who hit Soto with a metal bar and bat was an older 

Hispanic person named Capi. Sheriff’s Deputy Paul Zamora 

responded to the call. He found Soto lying on the ground with a 

large laceration to his head.

Zamora asked Soto several open-ended questions, but Soto 

did not respond. Because the radio dispatch call identified Capi 

as a suspect, Zamora asked Soto, “Is Capi the one that did this to 

you?” Soto nodded his head up and down two or three times. 

Zamora said the nodding was a “very deliberate act.” Soto was 

not moving his head from side to side. “It was just a straight up 

and down head nod.” Zamora was wearing a body camera but the 

glare from his flashlight obscured Soto’s head.

An ambulance took Soto to the hospital where he remained 

for three days. On discharge Soto had 10 staples in his head.

Sheriff’s deputies went to SanMiguel’s home. His wife 

answered the door. A deputy called out SanMiguel’s name and a 

male voice responded. A deputy looking through a window could 

see SanMiguel moving toward the back of the house. The deputy 

heard a sliding glass door open and the sound of someone trying 

to climb the back fence. The deputy saw SanMiguel at the rear of 

the residence. The deputy shouted, “Sheriff’s Department, stop.” 

SanMiguel did not comply. He was hiding in the backyard when 

deputies arrested him.

The deputies took SanMiguel to the Thousand Oaks police 

station. After being advised of his rights pursuant to Miranda v.

Arizona (1966) 384 U.S. 430, he agreed to talk. SanMiguel said 

that on January 8, 2022, he had gone to the park with his son in 

the late morning and to a liquor store between 2:00 and 3:00 p.m. 

The park and store are near the Jungle. But he claimed he was 
4

at home with his children when Soto was assaulted. He did not 

see anyone who could testify to his whereabouts that day.

Michelle Rodriguez testified that on the night of January 8, 

2022, she heard SanMiguel’s distinctive voice near her tent in the 

Jungle.

Jessica Geiser, an intelligence analyst with the sheriff’s 

department, testified that records of SanMiguel’s cell phone show 

him to have been in the vicinity of the Jungle from between 7:18 

p.m. and 9:11 p.m. on the night in question. Had SanMiguel been 

at home with his children that night, it is unlikely his cell phone 

would have used the same cell towers.

(a) Defense

SanMiguel testified in his own defense. He denied he went 

to the Jungle at any time on January 8, 2022, or any time after 

Christmas. He said he had a good relationship with everyone at 

the Jungle. He often went to the Jungle to bring blankets and 

food or to play baseball. Soto was one of his closest friends. He 

last saw Soto two or three weeks before Christmas.

SanMiguel said he did not know Soto had been injured 

until he was interviewed by the police after he was arrested. 

SanMiguel denied trying to flee from the police when he was 

arrested. He said he was in the backyard to put a cover on a 

birdcage.

SanMiguel said he was mistaken when he told the police he 

was home all evening on January 8, 2022. He had the day 

confused with a Mexican holiday. He said at about 5:45 p.m. he 

walked 30 minutes to a Vons store. He returned home about 7:30 

p.m. and stayed home with his wife and children for the rest of 

the night.
5

Robert Aguero testified as an expert in cell phone tower 

data analysis. He said determining where SanMiguel’s cell 

phone was between 7:18 p.m. and 8:45 p.m. would be pure 

guesswork.

(b) Jury Selection

During the trial court’s voir dire, prospective juror S.M. 

provided basic information like his name and place of residence. 

S.M. had a Hispanic surname. He was a college student studying 

film at UC Santa Barbara. He was single with no children and 

no prior experience serving as a juror. When the court asked if 

he thought he could be a fair and impartial juror on a case like 

this, S.M. replied, “I think so.”

In response to a question from SanMiguel’s counsel, S.M. 

provided an 85-word answer explaining why he would “[n]ot 

necessarily” think a non-testifying defendant was hiding 

something or did something wrong. SanMiguel’s counsel later

asked whether S.M. could draw his own conclusions despite his 

youth. S.M. stated, “I think I would be considering all the 

information that’s presented.” When asked if he could adhere to 

his own beliefs, S.M. replied: “I think I would be able to. I think 

I have a strong ground to my own thoughts as to what I would 

believe.”

The prosecutor asked S.M. whether he would require the 

victim to testify to reach a decision. S.M. responded: “I don’t 

think I would require him to speak specifically.” The prosecutor 

directed no other questions to S.M. in particular.

The prosecutor exercised a peremptory challenge to excuse 

S.M., and SanMiguel’s counsel objected based on Code of Civil 
6

Procedure section 231.7.

2

 SanMiguel’s counsel indicated

SanMiguel is of Latino descent and that S.M. was apparently 

“the only Latino man left of the 18.”

When asked to justify the strike, the prosecutor noted the 

victim in the case was also Hispanic. The prosecutor “wouldn’t 

have a reason to kick Hispanic people when [he had] a Hispanic 

on Hispanic crime.” The prosecutor indicated S.M.’s “responses 

were extremely brief” and S.M. “didn’t have much of anything to 

say.” The prosecutor added: “There are other people in the 

following six . . . that I believe will be jurors that I prefer more to 

[S.M.]” The prosecutor stated a different prospective juror had a 

Hispanic surname and he had not challenged her. That 

prospective juror ultimately did serve as a trial juror. The 

prosecutor concluded his initial justification by asking the court 

to make a finding that he “did not violate [section 231.7] by 

excusing someone just because he happens to be Hispanic.”

The trial court sought clarification on the explanation. The 

prosecutor stated, “It was that [S.M.] had very brief responses, 

that he did not have much to say about what my questions were.” 

The prosecutor added that S.M. did not fully follow the court’s 

orders because he walked out of the courtroom with papers—

apparently, the court’s questionnaire—and walked back in during 

breaks. When the court indicated it gave no orders about leaving 

with the questionnaire, the prosecutor said: “Okay. Just the fact 

that he walked back in when the rest of the jury had already 

been excused. . . . [Y]ou look at these small little things of what 

jurors are doing and how close they’re paying attention to the 

2 All further statutory references are to the Code of Civil 

Procedure unless otherwise stated.
7

process, and those are things that you pick up on versus what 

other jurors are doing or are not doing.” 

The prosecutor continued: “Eye contact that they’re 

making, body language that they have, you know, other jurors 

are being – I feel like they’re being more attentive. They’re 

giving more eye contact to me where he’s kind of looking down. I 

don’t feel like he’s being as engaged as other people are, and 

there’s no – there’s absolutely no pattern. I have zero intent of 

kicking [another prospective juror] who I believe is also a 

Hispanic juror.”

The trial court confirmed “exactly what the prosecutor did 

say, though, about [S.M’s] body language.” The court said, “I did 

notice that too, that [S.M.] has a very flat affect, and he is looking 

down most of the time. He is not responding to questions the 

same way everybody else does. There is no – he’s not making eye 

contact at all. He was doing the same thing with the Court. I did 

notice that, and I did take note of that.” The court denied the

section 231.7 objection. The court then noted, “[S.M. entered] the 

courtroom at a time when nobody else did, which I don’t think 

that’s a violation of a Court order, necessarily, but it shows that 

he’s not paying attention to what everybody else is doing . . . .”

DISCUSSION

I. Objection to Peremptory Challenge

SanMiguel contends the trial court erred in denying his

section 231.7 objection to the peremptory challenge of S.M.

Section 231.7, subdivision (a) provides: “A party shall not 

use a peremptory challenge to remove a prospective juror on the 

basis of the prospective juror’s race, ethnicity, gender, gender 

identity, sexual orientation, national origin, or religious 

affiliation, or the perceived membership of the prospective juror 
8

in any of those groups.” The Legislature implemented a complex 

statutory scheme to ensure parties do not violate this prohibition.

Once a party objects to the use of a peremptory challenge 

as violative of section 231.7, subdivision (a), the party exercising 

the challenge must state the reasons it did so. (§ 231.7, subds. 

(b), (c).) The court evaluates those reasons “in light of the totality 

of the circumstances,” without speculating on or assuming the 

existence of other possible justifications. (Id., subd. (d)(1).) “If 

the court determines there is a substantial likelihood that an 

objectively reasonable person would view [actual or perceived 

cognizable group membership] as a factor in the use of the 

peremptory challenge, then the objection shall be sustained. The 

court need not find purposeful discrimination to sustain the 

objection.” (Ibid.) Indeed, under section 231.7, “an objectively 

reasonable person is aware that unconscious bias, in addition to 

purposeful discrimination, have resulted in the unfair exclusion 

of potential jurors” in California. (Id., subd. (d)(2)(A).) 

Section 231.7, subdivision (d)(3) provides a non-exhaustive 

list of circumstances the court may consider in evaluating the 

reasons given to justify a peremptory challenge. The enumerated 

circumstances include whether the objecting party is a member of 

the same perceived cognizable group as the challenged juror, as 

well as whether the alleged victim or witnesses are not members 

of that group. (Id., subd. (d)(3)(A)(i)-(iii).) Trial courts are to 

consider “whether the party exercising the peremptory challenge 

failed to question the prospective juror about the concerns later 

stated by the party as the reason for the peremptory challenge” 

(id., subd. (d)(3)(C)(i)), and “[w]hether the party exercising the 

peremptory challenge engaged in cursory questioning of the 

challenged potential juror” (id., subd. (d)(3)(C)(ii)).
9

Section 231.7, subdivisions (e) and (g) provide two separate 

lists of presumptively invalid reasons for exercising a peremptory 

challenge. “Each subdivision sets out a distinct process by which 

a court determines whether a presumptively invalid reason can 

be absolved of that presumption.” (People v. Ortiz (2023) 96 

Cal.App.5th 768, 793.) 

Section 231.7, subdivision (g)(1) identifies the following 

reasons for peremptory challenges as having been “historically 

. . . associated with improper discrimination in jury selection:

“(A) The prospective juror was inattentive, or staring or 

failing to make eye contact.

“(B) The prospective juror exhibited either a lack of rapport 

or problematic attitude, body language, or demeanor.

“(C) The prospective juror provided unintelligent or 

confused answers.” 

Procedurally, section 231.7, subdivision (g)(2) provides that 

these reasons “are presumptively invalid unless the trial court is 

able to confirm that the asserted behavior occurred, based on the 

court’s own observations or the observations of counsel for the 

objecting party. Even with that confirmation, the counsel offering 

the reason shall explain why the asserted demeanor, behavior, or 

manner in which the prospective juror answered questions matters 

to the case to be tried.” (Italics added.)

We review the overall denial of a section 231.7 objection de 

novo, but we review the trial court’s express factual findings for 

substantial evidence. (Id., subd. (j).) The statute precludes 

appellate courts from imputing any findings to the trial court. 

(Ibid.) Likewise, the reviewing court can consider only the 

reasons stated under section 231.7, subdivision (c)–that is, the 

party’s actual justification for the challenge. The court may not 
10

speculate about or consider other possible reasons for the 

challenge. (Ibid.) 

If the appellate court determines the objection was 

improperly denied, the error “shall be deemed prejudicial, the 

judgment shall be reversed, and the case remanded for a new 

trial.” (§ 231.7, subd. (j).)

Analysis

We must determine de novo whether, in light of the totality 

of the circumstances, there is a substantial likelihood an 

objectively reasonable person would view S.M.’s cognizable group 

membership as a factor in the use of the peremptory challenge. 

(§ 231.7, subds. (d)(1), (j).) We are limited to the prosecutor’s 

stated reasons for challenging S.M. (Id., subds. (c), (j).) The 

prosecutor offered the following reasons:

(1) The prosecutor preferred prospective jurors in the next 

group of six.

(2) S.M. seemed less attentive than other prospective 

jurors, based on eye contact and body language. Other 

prospective jurors gave the prosecutor more eye contact, whereas 

S.M. was “kind of looking down.” Other prospective jurors 

seemed more engaged than S.M. 

(3) S.M.’s decision to walk back into the courtroom when 

the rest of the jury had already been excused was indicative of 

whether he paid close “attention to the process.” 

(4) S.M.’s “responses were extremely brief”; S.M. “didn’t 

have much of anything to say”; and S.M. “did not have much to 

say about what [the prosecutor’s] questions were.”

(5) The prosecutor intended to retain a female Hispanic 

prospective juror, who ultimately did serve as a trial juror.

(6) The victim in the case is also Hispanic.
11

We acknowledge the second and third points listed above 

are presumptively invalid under section 231.7, subdivision (g). 

That subdivision specifically describes inattentiveness; failing to 

make eye contact; lack of rapport; and problematic attitude, body 

language, or demeanor as having been “historically . . . associated 

with improper discrimination in jury selection.” (§ 231.7, subd. 

(g)(1).) The prosecutor cited S.M.’s inattentiveness, body 

language, and lack of eye contact. The prosecutor also identified 

inattentiveness as the significance of S.M. entering the courtroom 

when the jury had been excused. The prosecutor’s claim that 

S.M. was less “engaged” than other prospective jurors similarly 

critiqued some combination of S.M.’s demeanor and 

inattentiveness. 

Section 231.7, subdivision (g)(2) prescribes the 

circumstances under which these presumptively invalid reasons 

“can be absolved of that presumption.” (People v. Ortiz, supra, 96

Cal.App.5th at p. 793.) The trial court must confirm the 

“asserted behavior occurred.” (§ 231.7, subd. (g)(2).) Here, the 

trial court did so. However, “[e]ven with that confirmation, the 

counsel offering the reason shall explain why the asserted 

demeanor, behavior, or manner in which the prospective juror 

answered questions matters to the case to be tried.” (Ibid., italics 

added; see Ortiz, at p. 794 [section 231.7, subdivision (g)(2) 

contains both “ ‘confirmation’ ” and “ ‘explanation’ ” 

requirements].)

We agree with the dissent that one may wonder why 

behaviors like inattentiveness would require further explanation. 

And we acknowledge that the prosecutor and trial court could 

have made a more extensive and thorough inquiry. Nevertheless, 

we think reversal is unwarranted.
12

As the People point out, both the prosecutor and the trial 

court noted how different S.M. acted from the other jurors. That 

he walked back in the courtroom when the other jurors had been 

excused caught the attention of both the prosecutor and the 

judge. His response to questions was noticeably different than 

that of other jurors. In this instance, to attribute his dismissal to 

a lack of sensitivity to characteristics of his ethnicity could well 

be insulting to S.M.

S.M.’s lack of attention alone was a sufficient reason for his 

dismissal. It overcomes the presumption of invalidity under 

section 231.7, subdivision (g)(2). The peremptory challenge here 

was unrelated to a conscious or unconscious bias. The 

prosecution had a legitimate reason to be concerned about S.M.’s

ability to be “fair and impartial.” (Id., subd. (f).) No matter what 

a person’s background, race, or economic standing, if the juror 

does not pay attention, the juror does not belong on any jury.

We appreciate the Legislature’s concern relating to the 

problem of bias, whether explicit or implicit. Nevertheless, no 

capable attorney would fail to challenge such a juror unless the 

attorney had what is known in the trade as a dead-bang loser.

As I pointed out in my dissent in People v. Uriostegui (2024)

101 Cal.App.5th 271, 283, the trial judge’s ruling is well 

supported. It is not necessary for the trial judge to specifically 

say on the record, “ ‘I find by clear and convincing evidence the

reasons of the prosecutor for the peremptory challenge bear on

the prospective juror’s ability to be fair and impartial in the

case.’ ” (Ibid.)
13

[[II. Hearsay Exception

(a) Spontaneous Statement Exception to Hearsay Rule

SanMiguel contends the trial court abused its discretion 

when it admitted the evidence regarding Soto’s head nod as a 

spontaneous statement.

Evidence Code section 1240 provides: 

“Evidence of a statement is not made inadmissible by the 

hearsay rule if the statement:

“(a) Purports to narrate, describe, or explain an act, 

condition, or event perceived by the declarant; and

“(b) Was made spontaneously while the declarant was 

under the stress of excitement caused by such perception.”

To be admissible as a spontaneous statement “ ‘(1) there 

must be some occurrence startling enough to produce . . . nervous 

excitement and render the utterance spontaneous and 

unreflecting; (2) the utterance must have been before there has 

been time to contrive and misrepresent, i.e., while the nervous 

excitement may be supposed still to dominate and the reflective 

powers to be yet in abeyance; and (3) the utterance must relate to 

the circumstance of the occurrence preceding it.’ [Citation.]” 

(People v. Sanchez (2019) 7 Cal.5th 14, 39.)

All the elements of a spontaneous statement exist here: (1) 

Soto had just been attacked without warning. He had a deep 

gash in his head and had been rendered unconscious. Anyone 

would be in a state of nervous excitement sufficient to render his 

head nod spontaneous and unreflecting. (2) The head nodding

was made while Soto was still lying on the ground recovering 

from being knocked unconscious. His nervous excitement 

undoubtedly still dominated, and his reflective powers were still 

held in abeyance. (3) Soto’s head nod directly related to the 
14

circumstances of the preceding occurrence. In short, the 

circumstances here are precisely the circumstances Evidence 

Code section 1240 was intended to cover.

SanMiguel argues that Zamora was the declarant, not Soto. 

SanMiguel claims Soto merely responded to Zamora’s leading 

question. But that the statement is in response to a question 

does not make the statement inadmissible under Evidence Code 

section 1240. (People v. Pedroza (2007) 147 Cal.App.4th 784, 

791.)

SanMiguel argues that the circumstances were not 

sufficiently trustworthy to admit the evidence. He points out 

that Soto had been generally unresponsive to Zamora’s questions, 

and only responded to that one question, and that the head nod

could not be seen on Zamora’s body camera video. He also 

suggests the head nod may not have been a nod, but only 

movement caused by the paramedics as they were working on 

Soto.

But Zamora testified Soto nodded his head in response to 

his question, and that the head nodding was a deliberate act. 

The factors cited by SanMiguel go to the weight of the evidence, 

not its admissibility.

(b) Not Testimonial Hearsay

In Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 

1354] (Crawford), the United States Supreme Court considered 

the relationship between the Sixth Amendment’s Confrontation 

Clause and exceptions to the hearsay rule. The Supreme Court 

held that testimonial statements of a witness who did not appear 

at a trial violate the Confrontation Clause unless the witness was 

unavailable, and the defendant had a prior opportunity for crossexamination. (Id. at pp. 53-54.) The Crawford rule does not 
15

apply to hearsay exceptions that were recognized at the time of 

the Sixth Amendment’s adoption. (Id. at p. 56, fn. 6.)

Crawford did not define “testimonial statements.” That 

definition was provided in Davis v. Washington (2006) 547 U.S. 

813, 822 [165 L.2d.2d 224], as follows: “Statements are 

nontestimonial when made in the course of police interrogation 

under circumstances objectively indicating that the primary 

purpose of the interrogation is to enable police assistance to meet 

an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is 

to establish or prove past events potentially relevant to later 

criminal prosecution.”

SanMiguel argues the circumstances objectively indicate 

Zamora’s primary purpose in interrogating Soto was to establish 

past events potentially relevant to later criminal prosecution. 

But that is not the case. Zamora found Soto lying on the ground 

suffering from severe blunt force trauma. The perpetrator was at 

large, and public safety was at risk. Zamora needed to identify 

the perpetrator to protect public safety.

This case is very similar to People v. Pedroza, supra, 147 

Cal.App.4th 784. In Pedroza, the police responded to a call of a 

house fire. When they arrived, they found a woman lying on the 

ground outside the house suffering from severe burns. The police 

asked the woman what happened. She responded that her 

husband burned her by throwing gas on her. The woman died of 

her burns. Her statement to the police was admitted at 

husband’s trial for murder under the spontaneous statement 

exception to the hearsay rule.
16

In affirming the trial court, the Court of Appeal determined 

that the victim’s statement was not testimonial hearsay. The 

officers encountered the victim during an ongoing emergency; the 

officers’ conversations with the victim were brief; the statements 

were not taken under the calm circumstances of a formal 

interrogation; and the victim’s statement did not purport to 

describe an event that occurred some time ago. (People v.

Pedroza, supra, 147 Cal.App.4th at pp. 793-794.) The Court of 

Appeal also pointed out that it is difficult to identify the 

circumstances where a spontaneous statement qualifying under 

Evidence Code section 1240 could be considered testimonial. 

Such statements by their nature are not made in contemplation 

of their testimonial use in a future trial. (Pedroza, at p. 794.)

SanMiguel’s reliance on People v. Cage (2007) 40 Cal.4th 

965 is misplaced. In Cage, a sheriff’s deputy was dispatched to 

defendant’s residence on report of a family fight. As the deputy 

approached the house, he saw a bloody towel and drops of blood. 

Inside he found defendant picking up broken glass. The glass top 

of a nearby coffee table was missing. The deputy spoke with the 

defendant, her mother, and her daughter. The deputy departed, 

believing no crime had been committed. About an hour later, the 

deputy was dispatched to an intersection a mile or two away to 

look for an injured person. The deputy found John, the 

defendant’s son, sitting on the curb. John had a large cut on his 

face. An ambulance and emergency personnel were already on 

the scene. The ambulance transported John to the hospital. The 

deputy did not accompany John but went to the hospital “ ‘at a 

later point.’ ” (Id. at p. 971.) When the deputy arrived at the 

hospital, John was in the emergency room but had not yet been 

treated. The deputy asked John what happened. John told him 
17

he got into an argument with his mother; his mother pushed him,

and he fell onto the coffee table, breaking the glass top; his 

grandmother held him while his mother cut his face with a piece 

of glass.

In determining that John’s statement was testimonial 

hearsay, our Supreme Court said: “Thus, by the time [the 

deputy] spoke with John in the hospital, the incident that caused 

John’s injury had been over for more than an hour. The alleged 

assailant and the alleged victim were geographically separated, 

John had left the scene of the injury, and he thereafter had been 

taken to a remote location to receive medical treatment. Though 

he apparently had not yet been treated by a doctor when Mullin 

questioned him, he was in no danger of further violence as to 

which contemporaneous police intervention might be required.” 

(People v. Cage, supra, 40 Cal.4th at p. 985.) 

Here there are none of the factors that led the Supreme 

Court in Cage to conclude the victim’s statement is testimonial 

hearsay. When Zamora spoke to Soto, the incident had not been 

over for more than an hour. Zamora did not know the location of 

the alleged assistant. Soto had not left the scene of the injury. 

Whether Soto or other members of the public were in danger was 

unknown to Zamora.

III. There Was No Ineffective Assistance of Counsel

SanMiguel contends he received ineffective assistance of 

counsel when his counsel failed to object to the dual use of facts 

to impose the upper term on count 2.

The trial court sentenced SanMiguel to a total of 11 years 

to life consisting of: on count 1, attempted murder, seven years to 

life, plus one year for personal use of a dangerous weapon, plus 

three years for inflicting great bodily injury; on count 2, assault 
18

with a deadly weapon, the upper term of four years, stayed 

pursuant to Penal Code section 654.

The following factors in aggravation were found true by the 

jury: SanMiguel personally inflicted great bodily injury; the

crime involved great bodily harm and other acts disclosing a high 

degree of cruelty, viciousness, or callousness; and SanMiguel was 

armed with and used a weapon.

SanMiguel points out that an enhancement may not be 

used to impose an upper term unless the court has the power to 

strike the enhancement and does so. (Cal. Rules of Court, rule 

4.420(g).) In addition, a fact that is an element of the crime being 

punished cannot be used to impose the upper term. (Id., rule 

4.420(h).) SanMiguel argues that great bodily injury cannot be 

used to impose the upper term because it was charged as an

enhancement.

SanMiguel claims that the first two factors in aggravation 

are indistinguishable in that they both involve great bodily harm. 

But the second factor is distinguishable in that it not only 

requires great bodily harm, but also other acts involving a high 

degree of cruelty, viciousness, or callousness. Here SanMiguel’s 

attack on Soto was entirely unprovoked. He hit Soto on the head 

with a metal bar with enough force to render him unconscious. 

As Soto was defenseless on the ground and with Marroquin 

begging him to leave Soto alone, SanMiguel hit Soto again with a 

baseball bat. Finally, Marroquin placed her body over Soto and 

continued to beg SanMiguel to leave him alone. SanMiguel hit 

Soto in the head again next to Marroquin’s face. SanMiguel

walked away, not caring whether Soto was dead or alive. The 

jury’s finding that the crime involved a very high degree of 

cruelty, viciousness, or callousness is well supported by the 
19

evidence. That the offense was committed with a high degree of 

cruelty, viciousness, or callousness is not an element of the 

offense or any enhancement alleged here. Thus imposing the 

upper term on that basis does not constitute a dual use of facts.

The trial court stated that it chose the upper term on count

2 because of the factors in aggravation found true by the jury. 

But it only takes a single aggravating factor to impose the upper 

term. (People v. Sperling (2017) 12 Cal.App.5th 1094, 1103.) In 

sentencing SanMiguel, the court said, “This case was far more 

serious than other case of this type.” The court also stated, “I 

find that [SanMiguel] poses an unreasonable risk of public safety 

and is likely to offend in the future. This was completely 

unprovoked and extremely violent attack on somebody. And 

[SanMiguel] has shown absolutely zero insight or remorse as to 

why the offense happened.”

If the trial court erred, the error was harmless by any 

standard. There is no reasonable doubt that the court would 

have imposed the upper term based on the single aggravating 

factor that the crime was committed with a high degree of 

cruelty, viciousness, or callousness.

Moreover, in order to prevail on the claim of ineffective 

assistance of counsel, SanMiguel must demonstrate on appeal 

that counsel had no valid tactical reason for his action or failure 

to act. If the record on appeal sheds no light on why counsel 

acted or failed to act in the manner challenged, the claim of 

incompetence must be rejected unless counsel was asked for an 

explanation and failed to provide one, or unless there simply 

could be no satisfactory explanation. (People v. Mendoza Tello

(1997) 15 Cal.4th 264, 266.)
20

Here there is a very good reason why counsel would not 

object. The trial court sentenced SanMiguel to the four-year 

upper term for assault with a deadly weapon, but did not impose 

a term for the great bodily injury enhancement. The court could 

have imposed the three-year middle term for the assault, plus a 

three-year great bodily injury enhancement, for a total of six 

years instead of four. Given the trial court’s comments at 

sentencing, counsel was wise to leave well enough alone.

IV. Dismissal of an Enhancement on Count 1

SanMiguel contends the trial court erred in refusing to

dismiss an enhancement on count 1.

Penal Code section 1385, subdivision (c) provides in part: 

“(1) Notwithstanding any other law, the court shall dismiss 

an enhancement if it is in the furtherance of justice to do so, 

except if dismissal of that enhancement is prohibited by any 

initiative statute.

“(2) In exercising its discretion under this subdivision, the 

court shall consider and afford great weight to evidence offered by 

the defendant to prove that any of the mitigating circumstances 

in subparagraphs (A) to (I) are present. Proof of the presence of 

one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal 

of the enhancement would endanger public safety. ‘Endanger 

public safety’ means there is a likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.

“[¶] . . . [¶]

“(B) Multiple enhancements are alleged in a single case. In 

this instance, all enhancements beyond a single enhancement 

shall be dismissed.” (Italics added.)
21

Here the trial court refused to dismiss an enhancement on 

count 1, finding that SanMiguel is a danger to public safety. 

SanMiguel argues the words “shall be dismissed” in Penal Code 

section 1385, subdivision (c)(2)(B) make dismissal mandatory 

notwithstanding the finding of dangerousness.

SanMiguel concedes that every appellate court that has 

considered the matter has rejected his argument. After 

SanMiguel filed his opening brief, our Supreme Court decided 

People v. Walker (2024) 16 Cal.5th 1024. Walker held that the 

existence of one or more factors listed in Penal Code section 1385, 

subdivision (c)(2) does not mandate the dismissal of the 

enhancement. (Walker, at p. 1029.) 

Instead, our Supreme Court said, “[I]f the court does not 

find that dismissal would endanger public safety, the presence of 

an enumerated mitigating circumstance will generally result in 

the dismissal of an enhancement unless the sentencing court 

finds substantial, credible evidence of countervailing factors that 

‘may nonetheless neutralize even the great weight of the 

mitigating circumstance such that dismissal of the enhancement 

is not in furtherance of justice.’ ” (People v. Walker, supra, 16 

Cal.5th at p. 1029, quoting People v. Ortiz (2023) 87 Cal.App.5th 

1087, 1098.) Walker makes it clear that dismissal is not 

mandatory.]]

DISPOSITION

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

GILBERT, P. J.

I concur:

YEGAN, J.
YEGAN, J., Concurring:

I fully concur in the well-written opinion by Presiding 

Justice Gilbert. But I would go further and declare the 

methodology of Code of Civil Procedure (C.C.P.) section 231.7,

subdivision (j) unconstitutional. (See People v. Simmons (2023) 

96 Cal.App.5th 323, 340-345 (dis. opn. of Yegan, J.) [automatic 

reversal aspect of Racial Justice Act (Pen. Code § 745) is 

unconstitutional because it usurps California Constitution 

“miscarriage of justice” standard which requires an examination 

of the entire record before reversal].) Our recent prior appellate 

opinion in People v. Uriostegui (2024) 101 Cal.App.5th 271 (opn. 

of Baltodano, J., conc. of Cody, J., dis. opn. of Gilbert, P.J.),

should be overruled.1

1 C.C.P. section 231.7, subdivision (j) provides: “The denial 

of an objection made under this section shall be reviewed by the 

appellate court de novo, with the trial court’s express factual 

findings reviewed for substantial evidence. The appellate court 

shall not impute to the trial court any findings, including findings 

of a prospective juror’s demeanor, that the trial court did not 

expressly state on the record. The reviewing court shall consider 

only reasons actually given under subdivision (c) and shall not 

speculate as to or consider reasons that were not given to explain 

either the party’s use of the peremptory challenge or the party’s 

failure to challenge similarly situated jurors who are not 

members of the same cognizable group as the challenged juror, 

regardless of whether the moving party made a comparative 

analysis argument in the trial court. Should the appellate court 

determine that the objection was erroneously denied, that error 

shall be deemed prejudicial, the judgment shall be reversed, and 

the case remanded for a new trial.”

Our California Supreme Court has said that dismissal of a 

potential juror for racial bias is “structural error.” (People v. 

Gutierrez (2017) 2 Cal.5th 1150, 1157-1158.) We are bound by 
2

The legislative attack upon the California Constitution and 

the separation of power theory of government continues. This 

time, the Legislature dictates, in the context of empaneling a 

criminal jury trial, that the dismissal of a juror for perceived 

racial basis, is to be viewed wearing “horse blinders.” The 

“micromanagement” of C.C.P. section 231.7, subdivision (j) 

violates separation of powers jurisprudence. It is akin to statute 

telling a plumber how much torque is required when using a pipe 

wrench.

The time-honored appellate rule is that a reviewing court 

indulges in all reasonable inferences to uphold any ruling on 

appeal. (E.g., 9 Witkin, Cal. Procedure, (6th ed. 2021) §§ 385-387, 

pp. 420-424.) There has never been a requirement that the exact 

reason given by the trial court for its order precludes the 

appellate court from using its own judgment in reviewing the 

propriety of the order under review. We review the ruling of the 

trial court, not its rationale. (E.g., Davey v. Southern Pacific Co. 

(1897) 116 Cal. 325, 329-330; Yarrow v. State of California (1960) 

53 Cal.2d 427, 438; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 

981.) Even an unsound course of reasoning is not fatal to a trial 

court order. (People v. Gibson (1987) 195 Cal.App.3d 841, 853; 

People v. Patton (1976) 63 Cal.App.3d 211, 219.) If this statute 

passes constitutional muster, over a hundred years of Supreme 

Court precedent has been “overruled.”

Recently, the California Supreme Court, albeit in another 

context reminded everyone that the “‘term “constitution” implies 

an instrument of a permanent and abiding nature . . . .’” 

this holding. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 

Cal.2d 450, 455.) In the last sentence of the statute, the 

Legislature has codified the rule.
3

(Legislature of the State of California v. Weber (2024) 16 Cal.5th 

237, 256.) I am in complete agreement. The California 

Constitution expressly requires that an appellate court affirm a 

judgment unless, the court determines there has been a 

miscarriage of justice.2 The Legislature cannot, and should not, 

mandate a “form over substance” appellate rule purporting to put 

a California appellate court in a “straight jacket.” The judiciary 

cannot force the executive branch of government to charge 

someone with having committed a crime. The judiciary cannot 

force the legislative branch of government to enact or refrain 

from enacting a statute relating to the definition of crime or 

punishment. And, these two branches of government cannot tell 

judges how to judge. These are basic “separation of powers” 

observations which have stood the test of time. They should not 

be abandoned. 

I applaud legislative efforts to combat the perception of 

racial bias it sees in our judicial system. But the Legislature may 

not enact laws which violate our state constitution. Here, the 

Legislature has again stepped over the line. Unless, and until, 

the California Supreme Court directs otherwise, I will continue to 

object to any legislative attempt to “overrule” our California 

Constitution. As Justice Musmanno says in his famous

2 California Constitution, article VI, section 13 provides: 

“No judgment shall be set aside, or new trial granted, in any 

cause, on the ground of misdirection of the jury, or of the 

improper admission or rejection of evidence, or for any error as to 

any matter of pleading, or for any error as to any matter of 

procedure, unless, after an examination of the entire cause, 

including the evidence, the court shall be of the opinion that the 

error complained of has resulted in a miscarriage of justice.” 

(Ibid., italics added.)
4

dissenting opinion, “I shall continue to dissent . . . until the cows 

come home.” (Bosley v. Andrews (1958) 393 Pa. 161, 195, 

overruled on another ground in Niederman v. Brodsky (1970) 436 

Pa. 401, 413.) 

CERTIFIED FOR PUBLICATION. 

YEGAN, J.
CODY, J., Concurring and Dissenting:

I concur in the majority opinion except for its affirmance of 

the judgment and Part I of the Discussion section, from which I 

respectfully dissent. The prosecution challenged a prospective 

juror for reasons that were legally invalid, unsupported by the 

record, or otherwise unpersuasive. In light of the totality of the 

circumstances, there was a substantial likelihood an objectively 

reasonable person would view cognizable group membership as a 

factor in the peremptory challenge. The trial court nevertheless 

denied appellant’s motion under Code of Civil Procedure section 

231.7.1 This was error. The Legislature has determined such 

error is prejudicial.2 I would reverse and remand for a new trial. 

For ease of reference, I repeat the reasons the prosecutor 

offered to justify striking S.M.:

(1) The prosecutor preferred prospective jurors in the next 

group of six.

(2) S.M. seemed less attentive than other prospective 

jurors, based on eye contact and body language. Other 

prospective jurors gave the prosecutor more eye contact whereas 

S.M. was “kind of looking down.” Other prospective jurors 

seemed more engaged than S.M. did. 

1 Undesignated statutory references are to the Code of Civil 

Procedure. 

2 I respectfully depart from Justice Yegan’s view that the 

methodology of section 231.7, subdivision (j) is unconstitutional. 

“Because the state constitution does not limit the Legislature’s 

power to define a miscarriage of justice, we must conclude it has 

properly exercised its authority to do so here.” (People v. 

Simmons (2023) 96 Cal.App.5th 323, 339.)
2

(3) S.M.’s decision to walk back into the courtroom when 

the rest of the jury had already been excused. This behavior was 

indicative of whether S.M. paid close “attention to the process.” 

(4) S.M.’s “responses were extremely brief”; S.M. “didn’t 

have much of anything to say”; and S.M. “did not have much to 

say about what [the prosecutor’s] questions were.”

(5) The prosecutor intended to retain a female Hispanic 

prospective juror, who ultimately did serve as a trial juror.

(6) The victim in the case is also Hispanic.

I agree with the majority that the reasons outlined in the 

second and third points listed above are presumptively invalid 

under section 231.7, subdivision (g). I also agree the trial court 

confirmed the “asserted behavior occurred.” (§ 231.7, subd. 

(g)(2).) 

I disagree, however, with the majority’s conclusion that the 

presumption of invalidity was overcome. (Maj. opn. ante, at p. 

12.) The prosecutor never explained why S.M.’s behavior 

“matter[ed] to the case to be tried.” (§ 231.7, subd. (g)(2).) 

Section 231.7 subdivision (g)(2) expressly requires such an 

explanation to rehabilitate a presumptively invalid reason.

As recently articulated in People v. Caparrotta (2024) 103 

Cal.App.5th 874, 890-891: “[T]he only way to rebut the 

presumption of invalidity is by applying the statutorily 

prescribed two-step process of (1) confirmation of the behavior by 

the trial court, and (2) explanation by counsel of why the 

behavior matters to the case. If the presumption of invalidity for 

a particular reason identified by counsel is not rebutted through 

the two-step procedure set forth in subdivision (g)(2) of section 

231.7, that reason must be treated as conclusively invalid. In 

other words, the trial court must treat as conclusive the 
3

presumption that the reason identified by counsel was actually 

based on ‘race, ethnicity, gender, gender identity, sexual 

orientation, national origin, or religious affiliation,’ or perceived 

membership in any such group, as prohibited by section 231.7, 

subdivision (a).” 

Because the prosecutor failed to explain why S.M.’s 

behavior mattered in this case, I must treat as conclusive the 

presumption that he was excused for invalid, discriminatory 

reasons. 

One may well wonder why behaviors like inattentiveness 

would require further explanation. Our function, however, is not 

to evaluate the wisdom of the Legislature’s choices. Rather, 

“‘“‘our fundamental task here is to determine the Legislature’s 

intent so as to effectuate the law’s purpose.’”’” (People v. 

Gonzalez (2017) 2 Cal.5th 1138, 1141.) We are not at liberty to 

delete the unambiguous explanation requirement. (See, e.g., 

Melissa R. v. Superior Court (2012) 207 Cal.App.4th 816, 822 

[“‘“Appellate courts may not rewrite unambiguous statutes”’”].) 

To the extent any ambiguity exists, the Legislature recorded its 

intent “that this act be broadly construed to further the purpose 

of eliminating the use of group stereotypes and discrimination, 

whether based on conscious or unconscious bias, in the exercise of 

peremptory challenges.” (Stats. 2020, ch. 318, § 1, subd. (c).) I 

believe my interpretation is consonant with this capacious intent. 

The prosecutor’s remaining reasons for challenging S.M. 

are unsupported by the record or are otherwise unpersuasive. 

The prosecutor’s unelaborated preference for other prospective 

jurors over S.M. lacks explanatory value. Implicit in every 

rational peremptory challenge is a belief that other prospective 

jurors would be more favorable in some respect. Simply making 
4

that universal assumption explicit does not explain the 

prosecutor’s decision in this instance. 

The brevity of S.M.’s responses is an unconvincing

rationale. The record shows not all S.M.’s responses were brief. 

S.M. offered an 85-word reply to one of the several questions

counsel posed specifically to him. S.M.’s responses to counsels’

other questions were only one or two sentences each, but he did 

not offer, for example, one-word or two-word answers. The 

court’s voir dire largely sought basic biographical information 

inconducive to lengthy reply. 

Even granting S.M.’s answers were brief, however, it is 

unclear why brief answers made S.M. an undesirable juror. To 

the extent they indicated his lack of attention or a problematic 

demeanor, this rationale is invalid under section 231.7, 

subdivision (g), for the reasons discussed above. 

Moreover, the prosecutor engaged in “cursory questioning” 

of S.M. and did not question him about the concerns of 

inattentiveness or disinterest—circumstances the statute invites 

courts to consider. (§ 231.7, subd. (d)(3)(C)(i), (ii).) The 

prosecutor directed a single question to S.M. specifically. The 

prosecutor asked whether S.M. would require the victim to testify 

to reach a decision. S.M. responded: “I don’t think I would 

require him to speak specifically.” This response addressed the 

prosecutor’s question. The prosecutor made no other effort to 

probe S.M. specifically on this or any other topic. A party cannot 

pose a single, straightforward question to a prospective juror and 

then defeat a section 231.7 objection by claiming the juror’s 

responses were “very brief” and the juror “did not have much to 

say” about the party’s questions. Otherwise, relying on many 

prospective jurors’ unwillingness to answer questions posed to 
5

the group, a party could remove members of cognizable classes 

with impunity simply by questioning them cursorily. 

The prosecutor’s final two reasons—the presence of a 

Hispanic juror he did not challenge and the victim also being 

Hispanic—did not attempt to explain why he removed S.M. That 

the prosecutor did not challenge a female Hispanic juror does not 

explain why he did challenge S.M. Nor does the victim’s race or 

ethnicity explain why S.M. was an undesirable juror from the 

prosecutor’s perspective. Instead, the prosecutor offered these 

two justifications to refute a claim of bias under section 231.7. 

Neither does so. A party need not remove all prospective 

jurors of a cognizable group for a section 231.7 objection to 

succeed. The statute does not support this type of binary, all-ornothing thinking. Furthermore, while the victim in the case is 

Hispanic, appellant is as well. Section 231.7 identifies the shared 

group membership between appellant and S.M. as a circumstance 

the court may consider. (See § 231.7, subd. (d)(3)(A)(i).)

The prosecutor’s reliance on unsupported or unpersuasive 

reasons increases the likelihood S.M.’s cognizable group 

membership factored into the challenge, especially from the 

perspective of an objectively reasonable person who “is aware 

that unconscious bias, in addition to purposeful discrimination, 

have resulted in the unfair exclusion of potential jurors” in 

California. (Id., subd. (d)(2)(A).) Moreover, even if some of the 

prosecutor’s reasons were supported by the record or were 

otherwise appropriate, the presence of conclusively invalid 

reasons required the court to sustain the objection under section 

231.7. (§ 231.7, subd. (d); Caparrotta, supra, 103 Cal.App.5th at 

p. 896 [“[T]he Legislature did not intend to allow a peremptory 

challenge to be exercised, even in part, for an invalid reason”].)
6

I believe that, in light of the totality of the circumstances, 

there is a substantial likelihood an objectively reasonable person 

would view S.M.’s cognizable group membership as a factor in the 

peremptory challenge. (§ 231.7, subd. (d)(1).) Under section 

231.7, the error is prejudicial, and reversal and remand for a new 

trial is required. (Id., subd. (j).)

In reaching my conclusion, “[I] need not, and do not, 

determine whether the prosecutor was motivated by bias. (People 

v. Uriostegui (2024) 101 Cal.App.5th 271, 281.) The statute’s 

contemplation of both implicit and explicit bias obviates this 

inquiry. I also do not attribute the prosecutor’s challenge or 

court’s ruling “to a lack of sensitivity to characteristics of [S.M.’s]

ethnicity . . . .” (Maj. opn. ante, at p. 12.) The statute addresses 

reasons historically associated with improper discrimination in 

jury selection. Neither the statute nor I endorse the belief that 

those reasons, in fact, accurately describe any group.

I expect that counsel challenging prospective jurors will 

avail themselves of section 231.7’s framework to address 

potential implicit biases. The explanation requirement, for 

example, forces attorneys to articulate a connection between 

certain historically discriminatory reasons for a peremptory 

challenge and the current case. (§ 231.7, subd. (g)(2).) An 

attorney’s inability to do so increases the risk that bias factored 

into the challenge. Here, the prosecutor simply failed to offer the 

requisite explanation. I would reverse and remand for a new 

trial. 

CERTIFIED FOR PUBLICATION

CODY, J.
Ryan J. Wright, Judge

Superior Court County of Ventura

______________________________

Matthew Alger, under appointment by the Court of Appeal,

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy 

Attorneys General, for Plaintiff and Respondent.