Filed 6/15/23 P. v. Sierra CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY SIERRA,

Defendant and Appellant.

B316427

(Los Angeles County

Super. Ct. No. BA466498)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Mark S. Arnold, Judge. Affirmed.

Patricia A. Scott, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan S. Pithey, Assistant Attorney 

General, Scott A. Taryle and Stefanie Yee, Deputy Attorneys

General, for Plaintiff and Respondent.

_________________________________
2

INTRODUCTION

Larry Sierra appeals from his judgment of conviction of one 

count of first degree murder of Claudia Garcia (Pen. Code,1 § 187, 

subd. (a)) and discharging a firearm in the commission of the 

murder (§ 12022.53, subds. (b)–(d)). On appeal, Sierra contends

the prosecutor committed prejudicial misconduct by making a 

correction to the transcript of a recorded jailhouse conversation 

between Sierra’s codefendant and an undercover agent just 

before the transcript and audio recording were presented to the 

jury. Sierra also claims that the prosecutor committed 

prejudicial misconduct during closing argument when he 

commented that counsel for Sierra’s codefendant recognized that 

the evidence against Sierra was overwhelming. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution Evidence

A. Sierra and Garcia’s Relationship and Sierra’s 

Prior Threats Against Garcia

Garcia’s family and friends testified for the prosecution 

regarding Sierra’s abusive relationship with Garcia. Garcia’s 

mother, Maria Garcia,

2 described the relationship of Garcia and 

Sierra as “very bad.” On one occasion, Maria found Garcia hiding 

in a mechanic shop after Sierra had hurt Garcia and was 

following her on the street. On another occasion, she saw 

Garcia’s eyes were “very bruised.” On December 24, 2017, Sierra 

1 All further statutory references are to the Penal Code.

2 For the sake of clarity and to avoid confusion with Garcia, 

we refer to Garcia’s mother by her first name, intending no 

disrespect. 
3

went to Maria’s house and threatened Garcia, yelling at her from 

the street. 

Likewise, Garcia’s daughter described the relationship of 

Garcia and Sierra as “very toxic” and “abusive.” She witnessed 

Sierra physically abuse and threaten Garcia multiple times. This 

included one occasion in 2017 when Sierra uppercut Garcia with 

a closed fist, leaving a scar on her chin. In 2014, Sierra 

threatened Garcia and pointed a handgun at her body through a 

metal screen door while her daughter was standing beside her. 

Garcia and Sierra had a child together, Larry S. While 

Garcia was pregnant with Larry S., Sierra threatened her, 

pointing a knife at her stomach because he did not believe 

Larry S. was his child. After Larry S. was born, Sierra’s mother 

and Maria shared joint custody of the child. However, because 

Sierra repeatedly threatened Garcia and Maria, telling them to 

stay away from Larry S., Maria allowed Larry S. to live with 

Sierra and his mother on 85th Street near Broadway in Los 

Angeles. Maria testified there were always problems when 

Garcia would try to visit Larry S., and that Sierra would refuse to 

open the door whenever Garcia tried to visit Larry S. About two 

or three weeks before Garcia’s murder, she asked Maria to 

accompany her to visit Larry S. because Sierra had threatened to 

kill her if she did so. When they arrived at Sierra’s mother’s 

house, Sierra came outside and threatened Garcia, calling her a 

“bitch,” and saying that she was “gonna get it.” 

Chantel Keuleman was Garcia’s roommate. Sierra would 

sometimes communicate with Garcia by texting Keuleman’s cell 

phone. A couple months before Garcia’s murder, Sierra sent 

messages to Keuleman threatening to kill Garcia because he 

believed that Garcia was dating another man. In one text 
4

message, Sierra wrote, “ ‘You tell Claudia to stay with her 

other’—N-word—‘ese. When I . . . see her in L.A., it’s on, ese.’ ” 

Keuleman characterized this text message as Sierra being 

“respectful,” and that he generally used language that was much 

worse. On the day of the murder, Garcia told Keuleman that she 

was going to visit Larry S. near 84th Street and Broadway at 

Sierra’s and his mother’s residence.

Jennifer Batson was Garcia’s friend. In the weeks leading 

up to her murder, Batson saw that Garcia was receiving 

threatening texts from Sierra and that she looked like she had 

been beaten because her legs, stomach, and side were bruised. 

On the day of the murder, Batson and Garcia were attending 

court together in downtown Los Angeles. Batson testified that 

Garcia received a threatening text message from Sierra that day 

and that she was very concerned for Garcia because of Sierra’s 

behavior.

B. Law Enforcement Investigation

Garcia was found shot to death at a bus stop near 83rd 

Street and Broadway, approximately one block from Sierra’s 

residence. Detective Iris Romero recovered a cell phone, a bus 

token, and a monthly planner near Garcia’s body. No cartridge 

casings were found at the scene, suggesting that the casings had 

been moved or the murder weapon was a revolver, which does not 

expel the casings upon being fired. 

Detective Romero obtained surveillance camera footage 

from a nearby liquor store and a medical marijuana dispensary. 

In the surveillance footage, Garcia can be seen walking away 

from the area of Sierra’s home at 8:16 p.m. and stopping at the 

bus stop. Several minutes later, a van with distinctive logos 

drives past the bus stop where Garcia is waiting and parks at the 
5

corner of 83rd Street and Broadway. Then, a heavyset man gets 

out of the van, approaches Garcia, and shoots her in the back. 

The shooter then runs back to the parked van, which drives off. 

Investigators identified the logos on the van and 

determined the van was connected to a car audio business in 

Hawthorne. The business owner testified that he had hired both 

Sierra and Sierra’s cousin and codefendant, Benito Venegas, and 

that he allowed Venegas to use the company’s van on the 

weekends so that Venegas could drive it to promote the business. 

In examining the cell site activity for Venegas’s cell phone 

on the day of the murder, the data showed that Venegas called 

Sierra’s home at 6:47 p.m. Then, Venegas called Sierra again at 

8:24 p.m. and 8:27 p.m. from a cell site near the crime scene and 

Sierra’s residence. From 8:40 p.m. to 8:42 p.m., Venegas’s cell 

phone activity moved away from the crime scene, and towards 

Venegas’s residence. 

Sierra and Venegas were arrested three days after the 

murder and the van was impounded.

C. Perkins Operation

In a Perkins operation, Detective Jason Archie placed an 

undercover agent in a holding cell with Venegas and recorded 

their conversation. (Illinois v. Perkins (1990) 496 U.S. 292 

(Perkins).) After Venegas and the agent spoke for several 

minutes, Detective Archie told Venegas that he wanted to talk

about Garcia’s murder. At some point during Venegas’s 

conversation with the agent, Detective Archie walked Sierra and 

Sierra’s younger brother past Venegas’s cell, so that Venegas and 

the agent could see them. Venegas told the agent that Sierra was 

his cousin.
6

During their recorded conversation, Venegas admitted to 

the undercover agent that he picked up Sierra on the day of the 

murder, and Sierra directed him where to go. According to 

Venegas, Sierra “got out the car, he ran over there, I just heard 

ba—ba—ba—ba. He came running back to the car and we took 

off.” Venegas told the agent that he did not know what Sierra 

was going to do. When the agent suggested that Sierra might be 

cooperating with law enforcement, Venegas said that if Sierra did 

so, Sierra would be “green[lit],” i.e., killed for cooperating with 

police. After the agent suggested to Venegas that law 

enforcement may have surveillance footage of the murder, 

Venegas admitted, “[t]here’s a smoke shop right there,” and 

“I fucked up because I busted a bitch, [unintelligible] you know.”

Venegas told the agent that he should have “burned” the van 

after the murder because of its distinct logos tying the van to his 

employer. When the agent suggested that investigators were 

going to search the van for bullets, Venegas said that they would 

not find anything, but that he “fucked up” because the bullet 

casings were hidden in a deodorant stick at his house. When the 

agent asked how Venegas had time to find and collect the bullet 

casings, Venegas said that the murder weapon was a .357 

revolver.3 Venegas said he also hid the sweater Sierra was 

wearing on the night of the murder in a pile of his sister’s clothes, 

but that his sister was unlikely to cooperate with law 

enforcement. 

Venegas and the agent also discussed the potential 

sentences for murder. The agent informed Venegas that 

3 Detective Archie later searched Venegas’s home and found 

three spent .357 casings hidden in a stick of deodorant. 
7

“an accomplice is still just as fucked as the main one that shoots 

the fucking strap.” Venegas responded, “That’s gonna be life, 

huh?” When the agent told Venegas that the shooter would do 

life, Venegas asked, “I’m looking at 15, for the driver?” Before the 

agent was taken from the holding cell, he told Venegas, “You 

shoulda just never answered your cousin’s call that night. You 

know, you should have told him, I’m busy. I’m working or 

something.” 

II. Defense Evidence

Sierra introduced fingerprint processing cards and 

fingerprint lift tapes that were collected and analyzed in relation 

to the investigation of Garcia’s murder.

III. Jury Verdict and Sentencing

The jury found Sierra guilty of first degree murder, and 

found the firearm allegation true. The same jury found Venegas 

not guilty of murder but found him guilty of being an accessory 

after the fact. Sierra waived jury trial on a prior conviction 

allegation, and the court found it true. Sierra was sentenced to 

80 years to life. Sierra appealed.

DISCUSSION

I. Sierra Cannot Establish That He Was Prejudiced by 

the Prosecutor’s Revision of the Perkins Audio 

Transcript

Sierra first argues that the prosecutor committed 

misconduct by altering the transcript of the Perkins operation 

just before it was presented to the jury without first informing 

counsel, and then referencing the altered portion of the transcript 

in his closing argument. Sierra asserts that the trial court 

should have granted his motion to dismiss based on the 

prosecutor’s alterations to the transcript.
8

A. Additional Background

The prosecution first produced the audio of the Perkins 

operation along with a rough transcript of the recording in 

approximately July 2018. Thereafter, Sierra introduced the 

audio recording as an exhibit at his preliminary hearing. 

Before trial, Sierra moved to exclude the recording on the 

grounds that it was inadmissible hearsay. The trial court denied 

the motion, but the parties agreed to exclude certain portions of 

the audio that referred to gang membership. On the morning the 

audio was to be played to the jury, the prosecutor removed those

agreed upon portions of the transcript, and sent an updated copy 

of the transcript to defense. The prosecutor noted in his email 

that he was going to listen to the audio one more time to make 

sure everything was right. When trial resumed, the prosecutor 

gave defense counsel another updated copy of the transcript, 

noting that he had made changes to parts of the transcript that 

had been previously marked unintelligible, and asked defense 

counsel to review it. Copies of the transcript were also 

distributed to the jury, and the audio recording was played. The

accompanying transcript included the sentence, “You shoulda

just never answered your cousin’s call that night. You know, you

should have told him, I’m busy. I’m working or something.” In 

the previously produced rough transcript, that particular 

statement had been marked as unintelligible. Sierra’s counsel

did not object to the statement when it was played to the jury.

Two days later, the prosecutor referred to the sentence in 

his closing argument: “What else do we know? The informant 

says, ‘You should have just never answered your cousin’s call that 

night.’ Well, in reality we know it was Venegas who called 

Sierra. And Venegas says, ‘I was tripping out in the room. I was 
9

like fuck what the fuck happened, bro.’ So, again, this is an 

adoptive admission that the person he was with that night was 

who? His cousin.” Again, Sierra did not object to the statement 

during the prosecutor’s closing argument. 

After the case was submitted to the jury, Sierra moved to 

dismiss the case based on the prosecutor’s inclusion of this 

statement in the transcript and the prosecutor’s closing 

argument. The jury deliberated for approximately one hour 

before reaching a verdict. The trial court held a hearing on the 

motion after the jury indicated that it had reached a verdict. 

Sierra argued that the prosecutor should have notified defense 

counsel of the revisions so that their admissibility could have 

been litigated. The prosecutor explained that he had informed 

defense counsel that he revised parts of the transcript that were

previously marked unintelligible, and that he told defense 

counsel to review the changes. Moreover, the prosecutor noted 

that Sierra’s counsel did not object to the statement when the 

recording was played to the jury, and that the audio recording, 

which was the actual evidence, had been available to the defense 

for over three years. Defense counsel admitted that he “half 

listened” when the audio was played for the jury, and that the 

first time he noticed the added language was when the prosecutor 

referenced it during his closing argument. 

The trial court listened to the disputed portion of the audio 

recording and found that the challenged portion could be heard 

“clear as a bell” and that the prosecutor’s revision was accurate, 

finding that “it’s very plain that’s exactly what was said.” The 

trial court further found that, even had the challenged language 

been litigated, it would have been admitted as an adoptive 

admission similar to other portions of the recording that had been 
10

litigated and deemed admissible. Accordingly, the trial court 

denied the motion to dismiss. 

B. Governing Law

The federal and state standards to assess prosecutorial 

misconduct are “ ‘well established.’ ” (People v. Hill (1998) 

17 Cal.4th 800, 819.) A prosecutor commits misconduct when his 

or her behavior comprises a pattern of conduct “ ‘ “so egregious 

that it infects the trial with such unfairness as to make the 

conviction a denial of due process.” ’ ” (Ibid.) Under state law, 

a prosecutor commits misconduct when it involves “ ‘ “ ‘the use of 

deceptive or reprehensible methods to attempt to persuade either 

the court or the jury.’ ” ’ ” (Ibid.) A defendant’s conviction will 

not be reversed for prosecutorial misconduct “unless it is 

reasonably probable that a result more favorable to the defendant 

would have been reached without the misconduct.” (People v. 

Crew (2003) 31 Cal.4th 822, 839.) 

We review a trial court’s denial of a motion to dismiss 

criminal charges for abuse of discretion. (People v. VelascoPalacios (2015) 235 Cal.App.4th 439, 445 (Velasco-Palacios).)

C. Analysis

Even if we assume that the prosecutor’s revisions to the 

transcript were inappropriate, Sierra cannot show that, had the 

prosecutor specifically informed him of the corrected transcript, 

the trial court would have excluded the statement, or that he 

would have obtained a more favorable outcome at trial. First, 

Sierra does not contend that the prosecutor’s revisions to the 

audio transcript were inaccurate or fabricated. Indeed, when the 

trial court listened to the disputed portion of the audio recording, 

it found that the revised transcript was accurate and that the 

specific lines complained of by Sierra could be heard “clear as a 
11

bell.” “Transcripts of admissible tape recordings are only

prejudicial if it is shown they are so inaccurate that the jury

might be misled into convicting an innocent man.” (People v. 

Brown (1990) 225 Cal.App.3d 585, 599.) Moreover, Sierra cannot 

show that the statement would have been excluded. The trial 

court rejected Sierra’s argument that the statement was 

inadmissible hearsay, finding that Venegas’s response was an 

adoptive admission. 

Further, Sierra cannot establish prejudice because the 

remainder of the audio recording, which was deemed admissible 

after being litigated by the parties, overwhelmingly supported 

Sierra’s guilt. Even without the statement, “You shoulda just 

never answered your cousin’s call that night,” it was apparent 

that Venegas was referring to Sierra throughout his conversation 

with the agent. While Venegas was in the cell with the agent, 

Detective Archie walked Sierra past to help stimulate 

conversation. Venegas expressed skepticism that Sierra was 

cooperating with law enforcement, noting, “Nah, he’s my [cousin] 

holmes.” Venegas told the Perkins agent, “I picked him up and 

then he’s like, turn right here. [¶] . . . [¶] . . . [r]ight there. [¶] . . . 

[¶] He got out of the car, he ran over there, I just heard ba—ba—

ba—ba. He came running back to the car and we took off.” 

The Perkins agent asked, “So, who—it was—it was just you two 

by yourself?” Venegas responded “Uh-huh.” The agent also 

confirmed with Venegas that he was talking about Sierra rather 

than Sierra’s brother, who was also detained as part of the 

investigation, identifying Sierra by his tattoos, age, and body

type. Further, when the agent suggested Venegas had the most 

to lose because Venegas had a job, Venegas responded that Sierra 

was working with him at the car audio business, which was 
12

confirmed by the business owner’s testimony. Thus, in context, it 

is obvious, even without the challenged statement, that Venegas 

was referring to Sierra when he described the circumstances of 

the murder to the agent. 

Lastly, the other evidence against Sierra clearly 

established his guilt. The surveillance footage showed a man 

matching Sierra’s physique shoot Garcia in the back after he got 

out of a vehicle matching a van owned by Sierra’s and Venegas’s 

employer, which Venegas had access to on the day of the murder. 

Venegas’s cell phone activity showed that he was in contact with 

Sierra just before the murder and that he was in the area of the 

crime scene in the minutes just before and after the shooting. 

There was also Sierra’s history of threatening to kill Garcia and 

his physical abuse in relation to her visits with Larry S., which is 

precisely where Garcia was coming from when she was murdered 

at a bus stop a block away from Sierra’s residence. This evidence 

was uncontroverted and supported by multiple witnesses, 

surveillance footage, cell phone location data, and text messages. 

The jury’s short deliberation, which lasted just over an hour, 

supports the conclusion that this was not a close case. 

We also reject Sierra’s claim that he was prejudiced 

because the statement specifically implicated Sierra as the 

planner and shooter, and defense counsel had not planned for 

this in preparing a defense. As discussed above, the entirety of 

the audio recording supported the conclusion that Sierra was the 

shooter, and that Venegas drove him to the crime and helped 

Sierra hide evidence after the fact. Sierra’s argument that he 

was unprepared for this theory rings hollow when he had access 

to the audio recording for over three years. 
13

Sierra argues that this case is akin to Velasco-Palacios, 

supra, 235 Cal.App.4th 439. In Velasco-Palacios, the trial court 

granted the defendant’s motion to dismiss on the grounds that 

the prosecutor engaged in outrageous government conduct. (Id.

at p. 444.) There, the prosecutor fabricated and added two 

additional lines to a translation of defendant’s police 

interrogation. (Id. at pp. 442–443.) The fabricated lines of the 

transcript were essentially an admission of guilt to a more 

serious crime that the prosecutor attempted to use as leverage 

against the defendant to accept a plea. (Id. at p. 442.) When 

defense counsel confronted the prosecutor about the fabricated 

portions of the transcript, the prosecutor admitted that he added 

the lines “in jest,” and later testified that the added lines were “a 

joke.” (Id. at p. 443.) The trial court dismissed the charges, 

finding that, even if the lines were added as a joke, the 

dissemination of a fraudulent confession during plea negotiations 

was egregious, outrageous, and shocked the conscience. (Id. at 

p. 444.) The reviewing court affirmed the dismissal, concluding 

that the prosecutor deliberately altered the transcript to justify 

charges that could carry a life sentence and distributed the 

transcript to defense counsel when he knew that the defense was 

trying to settle the case. (Id. at p. 447.) 

The circumstances in Velasco-Palacios are a far cry from 

what occurred here. Unlike the prosecutor in Velasco-Palacios, 

the prosecutor here did not fabricate evidence to force a plea deal. 

Indeed, Sierra, the prosecutor, and the trial court all agree that 

the prosecutor’s alterations were an accurate transcription of the 

recording. Sierra’s insistence that the timing of the belated 

revisions to the transcript were essentially “sandbagging” is not 

supported by the record as Sierra and his counsel had access to 
14

the recording, which contained the challenged statements that 

could be heard “clear as a bell” for over three years. 

Because Sierra cannot show that he was deprived of due 

process, or that he would have obtained a more favorable outcome 

had he been notified of the challenged statement, he cannot 

establish prejudice. Therefore, his claim is denied.

II. The Prosecutor’s Comments on Codefense Counsel’s 

Closing Argument Did Not Constitute Misconduct

Sierra next argues that the prosecutor committed 

misconduct when he commented during closing argument that 

Venegas’s counsel recognized the overwhelming evidence against 

Sierra. Again, we disagree.

A. Additional Background

During closing argument, Venegas’s counsel argued that, 

while the evidence tended to show that Venegas drove Sierra to 

the murder and hid evidence after the fact, there was no evidence 

that Venegas knew Sierra was going to commit the murder or 

that he was involved in the murder itself. Venegas’s counsel thus 

essentially conceded that Venegas and Sierra were present at the 

scene, but argued that Venegas was not guilty of murder because

he did not know that Sierra was going to shoot Garcia. In 

contrast, Sierra’s counsel’s primary contention at closing was 

that the prosecutor had not met his burden of proof, and that it 

was likely that Garcia was shot by an unknown third party, who 

intimidated Venegas into assisting him or her in the murder. 

During rebuttal, the prosecutor commented on the 

inconsistencies between Venegas’s and Sierra’s defenses. “Let’s 

just quickly look at what the defense is. Well, they didn’t put on 

a defense. Their defense is essentially that I didn’t meet the 

burden of proof. There was no testimony from the defense. They 
15

were saying the district attorney’s office came up short. Larry 

Sierra specifically saying it wasn’t me and [Venegas] saying he 

didn’t know. [¶] . . . So the defenses aren’t completely in sync, 

right? [Venegas] saying it was my cousin. I yelled . . . afterwards 

what the fuck happened, but I didn’t know. Sierra’s attorney 

saying he’s saying something completely different. That Larry 

Sierra wasn’t in the car at all. So their defenses are not 

consistent. [¶] But [Venegas’s] attorney recognizes that the 

evidence against Larry Sierra as the shooter is overwhelming.”

Following the prosecutor’s statement, Sierra’s counsel 

objected and asked for a sidebar, which the trial court denied. 

After the conclusion of closing argument, the trial court allowed 

the parties to argue the objection. Sierra moved for a mistrial, 

arguing that the prosecutor’s comment improperly “bootstrapped” Venegas’s counsel’s argument and concessions to 

bolster the prosecution’s case against Sierra. 

The trial court denied the motion for mistrial, finding that 

the prosecutor was merely commenting on the evidence, which 

overwhelmingly supported Sierra’s guilt. 

B. Governing Law

During closing argument, a “prosecutor is given wide 

latitude to vigorously argue his or her case and to make fair 

comment upon the evidence, including reasonable inferences or

deductions that may be drawn from the evidence.” (People v. 

Ledesma (2006) 39 Cal.4th 641, 726.) While a prosecutor is not 

allowed to make false or unsubstantiated accusations that 

counsel is fabricating a defense or deceiving the jury, he or she 

has broad discretion to describe the deficiencies in opposing 

counsel’s tactics. (People v. Bemore (2000) 22 Cal.4th 809, 846.) 
16

A prosecutor may permissibly criticize the defense counsel’s 

argument. (People v. Marquez (1992) 1 Cal.4th 553, 575–576.)

C. Analysis

The prosecutor’s comment that Venegas’s attorney 

recognized the overwhelming evidence against Sierra or that the 

counsel’s theories were inconsistent was not misconduct. As 

discussed above, that was an accurate assessment of the evidence 

against Sierra, as well as Venegas’s counsel’s closing argument. 

Throughout his argument, Venegas’s counsel acknowledged that 

the evidence of Sierra’s and Venegas’s involvement in the crime 

was so overwhelming that the only available defense was that 

Venegas did not know that Sierra intended to kill Garcia. Thus, 

the prosecutor’s comments were squarely based on the evidence 

and responsive to both Sierra’s and Venegas’s counsel’s closing 

arguments. It is not misconduct for the prosecutor to comment 

on the “persuasive force of defense counsel’s closing argument 

. . . .” (People v. Zambrano (2007) 41 Cal.4th 1082, 1155), and 

generally, there will be no misconduct where comments focus the 

jury on the evidence rather than distracting it from its task 

(People v. Redd (2010) 48 Cal.4th 691, 735).

Sierra argues that the prosecutor’s comment was arguing 

facts not in evidence, and that it improperly bolstered the 

credibility of the prosecution’s witnesses. Sierra is incorrect.

The prosecutor’s reference to the inconsistent defenses was an 

appropriate response to the defense’s arguments and was based 

on the state of the evidence presented at trial. 

Accordingly, we find that the prosecutor’s comment

regarding Venegas’s counsel’s closing argument was not 

misconduct and thus not grounds for a mistrial.
17

DISPOSITION

The judgment is affirmed.

VIRAMONTES, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.