Filed 3/8/24 P. v. Sanchez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL MICHAEL SANCHEZ,

Defendant and Appellant.

 H050599

 (Monterey County

 Super. Ct. No. 21CR002655)

A jury convicted appellant Manuel Sanchez of murder, attempted murder, and 

weapons offenses, after a shooting that killed one person and wounded another. The trial 

court sentenced Sanchez to a determinate term of 18 years in prison, consecutive to an 

indeterminate term of 50 years to life. 

On appeal, Sanchez argues the trial court erred in admitting the following 

evidence at trial: (1) photographs and testimony regarding his tattoos, and (2) statements 

made to police by two witnesses, neither of whom appeared at trial, following the 

shooting. With respect to the evidence of his tattoos, Sanchez argues in the alternative 

that trial counsel was constitutionally ineffective for not seeking to exclude that evidence. 

Finally, Sanchez claims that these errors were cumulatively prejudicial. 

As to his sentencing, Sanchez argues the jury’s findings on the aggravating factors 

were not supported by substantial evidence or, in the alternative, the jury was 

misinstructed on those factors. Sanchez also contends that trial counsel was ineffective 
2

for failing to object to the deficient aggravating factors and the corresponding jury 

instructions.1 

As we explain below, we conclude that none of Sanchez’s arguments have merit. 

We will affirm the order. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Charges, verdict, and sentencing

On July 25, 2022, the Monterey County District Attorney filed a first amended 

information charging Sanchez with one count of murder (§ 187, subd. (a); count 1), two 

counts of attempted murder (§§ 187, subd. (a), 664; counts 2, 3), two counts of assault 

with a semiautomatic firearm (§ 245, subd. (b); counts 4, 5), and one count of possession 

of a firearm by a felon (§ 29800, subd. (a)(1); count 6). 

As to counts 1 and 2, the information alleged that Sanchez personally and 

intentionally discharged a firearm inflicting great bodily injury or death on the victims (§ 

12022.53, subd. (d)) and, as to count 3, that Sanchez personally and intentionally 

discharged a firearm (§ 12022.53, subd. (c)). With respect to counts 4 and 5, the 

information alleged that Sanchez personally used a firearm (§ 12022.5, subd. (a)) and, as 

to count 4, also alleged that Sanchez inflicted great bodily injury on the victim (§ 

12022.7, subd. (a)). Finally, the information alleged a number of aggravating factors, 

specifically, that: “(a)(1) The crime involved great violence, great bodily harm, threat of 

great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or 

callousness; [¶] (a)(2) The defendant was armed with or used a weapon at the time of the 

commission of the crime; [¶] (a)(3) The victim[s] [were] particularly vulnerable. [¶] ... 

1

In his opening brief, Sanchez also argued there was a discrepancy between the 

trial court’s oral pronouncement at sentencing and the minute order as to a restitution 

fund fine (§ 1202.4, subd. (b)). Sanchez subsequently withdrew that argument and we do 

not consider it. 
3

[¶] (b)(1) The defendant has engaged in violent conduct that indicates a serious danger to 

society; [¶] (b)(2) The defendant’s prior convictions as an adult or sustained petitions in 

juvenile delinquency proceedings are numerous or of increasing seriousness; [and] [¶] 

(b)(3) The defendant has served a prior term in prison or county jail under section 

1170(h).” (Cal. Rules of Court, rule 4.421(a)(1)-(3), (b)(1)-(3).)2

After a trial, the jury found Sanchez guilty on all counts and found true all of the 

firearm enhancement allegations. The jury also found true certain of the aggravating 

factor allegations.3 Specifically, as to counts 1 through 5, the jury found true the 

aggravating factors that: (1) the crime involved great violence, great bodily harm, threats 

of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or 

callousness (rule 4.421(a)(1)); and (2) Sanchez was armed with or used a weapon at the 

time of the commission of the crime (rule 4.421(a)(2)). As to count 1, the jury also found 

true the aggravating factor that the victim was particularly vulnerable (rule 4.421(a)(3)). 

On November 17, 2022, the trial court sentenced Sanchez to an indeterminate term 

of 50 years to life, consisting of the base term of 25 years to life on count 1 (§ 187, subd. 

(a)) consecutive to an additional term of 25 years to life due to the firearm enhancement 

(§ 12022.53, subd. (d)). The trial court also imposed a consecutive determinate term of 

18 years, consisting of consecutive upper terms of nine years on counts 2 and 3 (§§ 187, 

subd. (a), 664) but striking the firearm enhancements (§ 12022.53, subds. (c), (d)) on 

each of those counts. On count 4 (§ 245, subd. (b)), the trial court imposed, but stayed 

2 Unspecified rule references are to the California Rules of Court.

3 The jury was not instructed on and made no findings as to the three aggravating 

factors set forth in rule 4.421(b), i.e., that Sanchez “engaged in violent conduct that 

indicates a serious danger to society[,]” that his “prior convictions as an adult or 

sustained petitions in juvenile delinquency proceedings are numerous or of increasing 

seriousness[,]” and that Sanchez “has served a prior term in prison or county jail under 

section 1170[, subd.] (h).” 
4

under section 654, the upper term of nine years plus a consecutive four–year term due to 

the firearm enhancement (§ 12022.5, subd. (a)) and a consecutive three–year term for the 

great bodily injury enhancement (§ 12022.7, subd. (a)). On count 5 (§ 245, subd. (b)), 

the trial court also imposed, but stayed under section 654, an upper term sentence of nine 

years plus a consecutive four–year term for the firearm enhancement (§ 12022.5, subd. 

(a)). Finally, the court imposed a concurrent middle term sentence of two years on count 

6 (§ 29800, subd. (a)(1)). 

Sanchez timely appealed.

B. Factual background

1. Shooting and police response

At 10:14 p.m. on April 7, 2021,4 Salinas police officers responded to a report of a 

shooting in an area where a number of transients had set up tents. The “tent city” was 

located in an industrial and commercial zone along a set of railroad tracks. 

Salinas Police Department Officer Jared Reyes and his partner were the first to 

arrive at the site. As the officers arrived, a man, later identified as Brandon H.,

5

approached them. Reyes could see that Brandon H. was bleeding from a wound to his 

left shoulder. Brandon H. told Reyes that he had been shot and pointed toward a nearby 

tent, saying that his friend had also been shot. As the officers approached the tent, they 

could hear a woman inside screaming, “ ‘Hurry. He needs help.’ ” Reyes and his partner 

entered the tent and found Sandra M. bent over the body of an 18–year–old male, Adam 

G., who had been shot in the head. Reyes rendered medical assistance until paramedics 

arrived and then followed the ambulance to the hospital to try to obtain a statement from 

4 Unless otherwise specified, all dates are from the year 2021. 

5 We refer to the victims and witnesses by their first names and last initials to

protect their privacy interests. (Rule 8.90(b)(4).) 
5

Adam G. However, Adam G. remained unresponsive and eventually died from his 

wound.6 

Officer Chris Webb arrived on the scene shortly after Reyes and encountered 

Sandra M. and Brandon H., both of whom appeared “worried, scared, [and] distraught.” 

Sandra M. was not injured, although she had blood on her jacket, apparently from Adam 

G. She told Webb that she and Adam G. had been inside the tent when the shooter came 

inside and asked for someone named Face. Sandra M. said that Face was not there7and 

the shooter left the tent. He stood outside for approximately seven minutes before firing 

eight to ten shots into the tent. Sandra M. said the shooter was wearing a black sweater, 

blue jeans, and either a hat or a beanie. She also said the shooter had tape on his nose, as 

if it was broken. Webb asked Sandra M. which way the shooter went, and she pointed 

toward the railroad tracks. 

Officer Anthony Yates interviewed Brandon H. at the scene.8 Brandon H. told 

Yates that the shooter was about 5 feet 10 inches tall, “chubby[,]” and was wearing a blue 

bandana, blue jeans, and a dark hooded sweatshirt. Brandon H. also told Yates he saw a 

white Camaro on an adjoining street and made several different statements about that 

vehicle. At first, he said that he saw the shooter get into that vehicle and drive away after 

the shooting. Brandon H. later said that he chased after the shooter who ran across the 

railroad tracks and a white Camaro drove past on a nearby street, but he did not actually 

see the shooter get into that vehicle. At another point in the interview, Brandon H. said 

he saw the shooter get out of the white Camaro. 

6

It is not clear from the record when Adam G. died, but the autopsy was 

performed on April 14, 2021. 

7 Sandra M. told Webb that the tent belonged to Face and she and Adam G. were 

there “hanging out.” 

8 Yates does not speak Spanish, therefore a second officer served as a translator 

during the interview. 
6

2. Sanchez’s arrest 

As officer Nicholas Abruzzini responded to the shooting, he received a description 

of the shooter and his last reported direction of travel. According to the dispatch, the 

shooter was a “Hispanic male adult, medium heavy-set build, wearing a black hooded 

sweatshirt, black hat, white mask and some color or dark jeans.” The dispatch further 

advised that the suspect was traveling “on Industrial [Street] toward Vertin Avenue.” 

Officer Abruzzini drove to the area and saw a man, later identified as Sanchez, in an alley 

between warehouse-style buildings. Although the nearby buildings appeared to contain 

businesses, all those businesses were closed at that time of night. 

According to Abruzzini, when he first saw Sanchez in the alley, Sanchez was 

“pacing between the buildings, walking in weird directions, kind of stepping out into the 

alleyway back and forth, looking over his shoulder, acting very oddly.” There was no 

one else in the area, which was approximately 300 yards from where the shooting took 

place. 

Abruzzini drove up to Sanchez and asked him, “ ‘Do you know where you are 

right now?’ ” Sanchez looked at Abruzzini, tried a nearby door handle on the building 

and said, “ ‘Well, I work here. I’m trying to get back to work.’ ” According to 

Abruzzini, Sanchez was sweating “profusely [] and [] visibly shaken, upset.” When the 

door failed to open, Sanchez walked further down the alley before Abruzzini got out of 

his patrol car and placed him under arrest. 

Abruzzini searched Sanchez and found a .22–caliber semi–automatic handgun in 

his waistband. The weapon was partially loaded with live rounds, but the magazine was 

inserted into the gun backwards. Sanchez also had six live rounds of .22–caliber 

ammunition in the front pocket of his sweatshirt. At the time of his arrest, Sanchez was 

wearing a black hooded sweatshirt with prominent multicolored lettering on it, a pair of 

gray sweatpants with three black stripes along the legs, which were worn over a pair of 
7

black shorts. On his face, Sanchez was also wearing a white mask over a blue surgical

mask. 

3. Subsequent police investigation 

Following Sanchez’s arrest, police located a white Ford Expedition parked on 

Industrial Street near the railroad tracks. After obtaining a search warrant, officers 

opened the vehicle and found a wallet with Sanchez’s driver’s license and social security 

card. 

The vehicle was registered to Dolores O., Sanchez’s grandmother, and she 

testified that Sanchez was living with her in April of 2021. Dolores O. would sometimes 

lend Sanchez her car and confirmed that she did so on April 7. However, Dolores O. did 

not remember speaking with a police detective the day after the shooting. She also 

denied that Sanchez told her on April 7 that he felt like hurting or killing someone.9 

Police investigators also recovered surveillance video footage, some with audio,

from three businesses in the area. Salinas police detective John Richardson reviewed the 

footage and observed a person whose clothing and build matched Sanchez’s description 

and the clothing he was wearing when he was arrested. 

Detective Richardson described the video which showed a “white or light colored 

SUV” parked near the scene of the shooting about 9:57 p.m., approximately 14 minutes 

before shots are heard. Around 10:00 p.m., Sanchez gets out of the SUV and walks away 

from the scene of the shooting and out of view of the camera. The video then shows “one 

individual or a shadow of an individual” walking back toward the railroad tracks, i.e., in 

the direction of the “tent city.”

9 Salinas police detective Pedro Gomez testified that he interviewed Dolores O. on 

April 8 while his body camera was activated. A portion of the videotaped interview was 

played for the jury and admitted into evidence. On the video, Dolores O. tells detective 

Gomez that, on April 7, Sanchez “kept saying ... I just feel like, um, beating up 

somebody ... or killing somebody ... doing something so that the cops will shoot me.” 
8

At 10:11 p.m., or 11 minutes after Sanchez got out of his SUV, the audio picks up 

two gunshots and Sanchez can be seen running back from the railroad tracks to the SUV. 

Sanchez approaches the driver’s side door and the interior light of the vehicle comes on. 

Sanchez does not get in but instead goes to the front of the vehicle. He then looks toward 

the railroad tracks before running down Industrial Street. 

Other videos from different angles show Sanchez running away from the SUV as 

two people come toward him across the railroad tracks. As those persons cross the 

tracks, Richardson testified that, “you could see three muzzle flashes or flashes of light, 

which I determined to be muzzle flashes, as they’re running toward [Sanchez’s] 

direction.” A few minutes after the muzzle flashes, the video shows a white Camaro 

driving by. 

Investigators recovered two .22–caliber shell casings near the tent and several 

more shell casings “in the dirt area between Industrial Street and the railroad tracks.” 

The shell casings found by the railroad tracks were larger than what could be used in a 

.22-caliber firearm, but police never recovered a larger caliber firearm in the course of 

this investigation. 

Rachel Frase, a senior criminalist with the state Department of Justice Bureau of 

Forensic Sciences, testified that she test fired the .22–caliber handgun found on Sanchez 

when he was arrested, comparing the bullet and cartridge casings to those found at the 

scene of the shooting. In Frase’s opinion, her analysis of the bullets was inconclusive, as 

there were “not enough individual characteristics ... to say one way or the other” that the 

bullets recovered in this case were fired from the same weapon. However, in her opinion, 

the test–fired cartridges and the cartridges recovered from the scene of the shooting came 

from the same firearm.
9

On cross-examination, Frase confirmed that she was not provided and did not 

analyze any bullets or cartridge casings larger than a .22-caliber. Frase also testified that, 

if the magazine were inserted backwards, the gun would not fire. 

4. Gang–related evidence 

F.F. testified that Adam G., who was killed inside F.F.’s tent, was his friend and 

would “hang out” with him in that tent. F.F. said that he also went by the name “Face,” 

and when asked if he knew why anyone would want to shoot at his tent, he responded,

“No. Not really. Just the fact that I’m a [gang] dropout.” F.F. explained that he had 

been a member of a Norteño gang for around ten years but dropped out approximately 

three years before the shooting. 

The jury was shown a number of photographs from the scene of the shooting, 

including a photograph of the exterior of F.F.’s tent. During cross–examination, defense 

counsel showed that photograph to the officer who took it and asked if the officer could 

see that some graffiti or lettering on the tent included the letters “BK.” Although the 

officer said he could not make out those letters in the photograph, he confirmed that 

“BK” could refer to “buster killer” and that “buster” is a derogatory term for Norteño 

gang members.

10

 

Monterey County Deputy Sheriff Federico Tinoco testified that he is assigned to 

the classification unit and “interviews, evaluates[,] and assesses inmates when they come 

into custody.” As a classification officer, his objective is “keeping everybody safe” while 

in custody and therefore they segregate inmates based on their gang affiliation. 

Consequently, Norteño gang members and associates are housed in the Norteño housing 

unit and Sureño gang members and associates are housed in the Sureño unit. The gang 

10 The prosecution’s gang expert also testified that “BK” would, in gang circles, be 

shorthand for “buster killer” and would be used by someone who “views Norteños as 

their enemy and [] wants to kill them or eliminate them.” 
10

members themselves also verify whether someone who is placed in their unit is in good 

standing with or is associated with their gang, and if they are not, the inmates will assault 

that person. Sanchez was placed in the Norteño housing unit after his arrest and, as far as 

Tinoco was aware, Sanchez had not been attacked by other inmates during the 16 months 

he was in custody prior to trial. 

Salinas police detective Ruben Sanchez testified as an expert on the investigation 

of gang–related crimes in Monterey County and Norteños in particular. According to 

detective Sanchez, Norteños saw people who dropped out of their gang as traitors, 

particularly because dropouts would be able to give police critical information about the 

gang’s crimes and tactics. Because Norteños viewed dropouts as a “liability,” every 

dropout had a “green light,” meaning they could be killed by other gang members. 

In preparing for trial and to determine Sanchez’s gang status, detective Sanchez 

familiarized himself with, among other things, Sanchez’s tattoos. On his chest, Sanchez 

had a tattoo of “a Huelga bird, or an eagle[,]” which Norteños used as a symbol. On his 

forehead, Sanchez had a tattoo of the letter “N,” representing “Norteño or Norte, 

Northerner.” The prominent visible display of such a tattoo was significant because it 

was “like a billboard” signaling his gang affiliation to both the public as well as the 

gang’s enemies. 

On one of Sanchez’s shoulders, he had a tattoo of the letters “SK,” which detective 

Sanchez testified could mean “scrap killer or Sureño killer.” Sanchez also had a tattoo on 

his right forearm that read “D.O killa” which was a reference to killing dropouts. On his 

left forearm, Sanchez had an “X4” tattoo, and detective Sanchez testified that “X” was 

the Roman numeral 10. Adding the “4” totaled “14” which is a number Norteños identify 

with because “N” is the 14th letter of the alphabet. On his neck, Sanchez had a tattoo of 

the letters “EM” and, according to detective Sanchez, this was a reference to Salinas East 

Market, one of the oldest Norteño gangs in Salinas. 
11

Based on Sanchez’s tattoos and his assignment to a Norteño unit in the county jail, 

it was detective Sanchez’s opinion that Sanchez was an active member of a Norteño 

criminal street gang at the time of the April shooting. 

II. DISCUSSION

A. Admission of evidence of Sanchez’s tattoos

Sanchez contends that the trial court erred in admitting evidence of his tattoos on 

both statutory and due process grounds. As discussed below, we disagree.

1. Evidence Code section 352.2 is not retroactive 

Sanchez first argues that Evidence Code section 352.2, which came into effect less 

than two months after he was sentenced, applies retroactively and the matter must be 

remanded to the trial court for it to consider the admissibility of his tattoos pursuant to 

that statute. He cites People v. Venable (2023) 88 Cal.App.5th 445, review granted May 

17, 2020, S279081 (Venable), in support of this argument. We disagree with Venable 

and conclude that Evidence Code section 352.2 is not retroactive.11

a. Additional background

Before trial, the prosecution moved in limine to introduce evidence of Sanchez’s 

“D.O Killa” tattoo on the ground that it was probative of Sanchez’s “state of mind and 

motive.” The prosecution also sought an in limine order to photograph Sanchez’s other 

tattoos as motive evidence. The trial court granted both of the motions, stating that if the 

evidence at trial showed that Sanchez was in a gang and that he was looking for a gang 

dropout on the night of the shooting, the tattoos would be relevant evidence of motive. 

At trial, the prosecution moved to introduce photographs of several of Sanchez’s 

tattoos as evidence of motive and intent. The trial court allowed the evidence to be 

11 Because we do not agree that Evidence Code section 352.2 applies retroactively, 

we need not and do not consider the Attorney General’s argument that tattoos are not a 

form of creative expression that falls within the ambit of the statute. 
12

admitted, stating that there were “strong reasonable inferences that the ... crime was 

committed for gang-related reasons. [¶] The strongest reason being that the intended 

victim was a dropout of a Norteño gang. The defendant’s membership or association 

with that gang is highly relevant to explain the motivation in this case. So any evidence 

showing gang association or relationship would be relevant. [¶] ... So these tattoos all 

appear to be relevant to show gang membership. With respect to the specific tattoo DO 

killer [sic], that is further identifying, frankly, labeling motivation. It’s very specific to 

this actual individual, and it clearly ties the motivation to the defendant and the alleged 

victim in this case based upon ... the intended victim’s testimony that he was a dropout.” 

Although the trial court did not specifically reference Evidence Code section 352 in its 

discussion, it stated that it found the tattoo evidence both “highly relevant” and 

prejudicial but concluded that it did not “find the prejudice outweighs its relevance or 

probative value.” 

After the close of evidence, the jury was instructed it could only consider the gang 

evidence to decide whether Sanchez had a motive or the intent necessary to commit the 

charged offenses. The jury was further instructed that it could not consider that evidence 

for any other purpose and it could not “conclude from this evidence that [Sanchez] is a 

person of bad character or that he has a disposition to commit crime.” 

b. Analysis

Evidence of a defendant’s criminal disposition, including evidence that he is a 

member of or associated with a criminal street gang, is inadmissible to prove he 

committed a specific criminal act. (Evid. Code, § 1101; People v. Williams (1997) 16 

Cal.4th 153, 193; People v. Champion (1995) 9 Cal.4th 879, 922.) However, pursuant to 

Evidence Code section 1101, subdivision (b) evidence of “a crime, civil wrong, or other 

act” is admissible to prove something other than the defendant’s character, specifically 

“motive, opportunity, intent, preparation, plan, knowledge, identity, [etc.]” (Italics 
13

added.) Before it may be admitted, the trial court must determine that it is both relevant 

to prove a fact at issue (Evid. Code, § 210), and that its probative value is not outweighed 

by its prejudicial effect (Evid. Code, § 352). “Although evidence of gang membership 

carries the potential for prejudice, it ‘ “is often relevant to, and admissible regarding, the 

charged offense. Evidence of the defendant’s gang affiliation—including evidence of the 

gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, 

rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, 

means of applying force or fear, or other issues pertinent to guilt of the charged crime.” 

’ [Citation.]” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 772.)

Effective January 1, 2023, Assembly Bill No. 2799 (2021-2022 Reg. Sess.) added 

section 352.2 to the Evidence Code. (Stats. 2022, ch. 973, § 2.) The statute provides 

additional procedures and factors for the trial court to consider in a criminal proceeding 

before admitting evidence of creative expression under Evidence Code section 352. 

(Evid. Code, § 352.2, subds. (a), (b).) In uncodified portions of the bill, the Legislature 

declared that among its purposes in enacting the statute was to guard against introducing 

stereotypes or activating bias and to exclude character or propensity evidence against the 

defendant.12 (Stats. 2022, ch. 972, § 1, subd. (b).) 

12 Evidence Code section 352.2 provides: “(a) In any criminal proceeding where a 

party seeks to admit as evidence a form of creative expression, the court, while balancing 

the probative value of that evidence against the substantial danger of undue prejudice 

under [Evid. Code] Section 352, shall consider, in addition to the factors listed in [Evid. 

Code] Section 352, that: (1) the probative value of such expression for its literal truth or 

as a truthful narrative is minimal unless that expression is created near in time to the 

charged crime or crimes, bears a sufficient level of similarity to the charged crime or 

crimes, or includes factual detail not otherwise publicly available; and (2) undue 

prejudice includes, but is not limited to, the possibility that the trier of fact will, in 

violation of [Evid. Code] Section 1101, treat the expression as evidence of the 

defendant’s propensity for violence or general criminal disposition as well as the 

possibility that the evidence will explicitly or implicitly inject racial bias into the 

proceedings. [¶] (b) If proffered and relevant to the issues in the case, the court shall 
14

In Venable, supra, the court concluded that Evidence Code section 352.2 has an

ameliorative effect and thus applies retroactively to cases not yet final on appeal. 

(Venable, supra, 88 Cal.App.5th at p. 456.) In that case, which involved a gang-related 

murder, the prosecution introduced into evidence a rap video, posted on YouTube, 

featuring the defendant, the defendants’ younger brother, and other gang members, 

flashing gang signs and displaying guns, drugs, and money. (Id. at p. 452.) The lyrics 

included a line that the prosecution’s gang expert testified meant that the defendant’s 

younger brother had heard that a gang member shot someone in the head on the street 

where the charged murder occurred. (Id. at pp. 452-453.) 

In finding that Evidence Code section 352.2 has retroactive application, Venable 

relied heavily on People v. Frahs (2020) 9 Cal.5th 618 (Frahs), in which the California 

Supreme Court explained that ‘ “[t]he Estrada rule rests on an inference that, in the 

absence of contrary indications, a legislative body ordinarily intends for ameliorative 

changes to the criminal law to extend as broadly as possible, distinguishing only as 

necessary between sentences that are final and sentences that are not.” ’ (Frahs, supra, 9 

Cal.5th at p. 628.)” (Venable, supra, 88 Cal.App.5th at p. 456.) Although the statute at 

issue in Frahs, which gave trial courts discretion to grant pretrial diversion in certain 

consider the following as well as any additional relevant evidence offered by either party: 

[¶] (1) Credible testimony on the genre of creative expression as to the social or cultural 

context, rules, conventions, and artistic techniques of the expression. [¶] (2) 

Experimental or social science research demonstrating that the introduction of a 

particular type of expression explicitly or implicitly introduces racial bias into the 

proceedings. [¶] (3) Evidence to rebut such research or testimony. [¶] (c) For purposes 

of this section, ‘creative expression’ means the expression or application of creativity or 

imagination in the production or arrangement of forms, sounds, words, movements, or 

symbols, including, but not limited to, music, dance, performance art, visual art, poetry, 

literature, film, and other such objects or media. [¶] (d) The question of the admissibility 

of a form of creative expression shall be heard in limine and determined by the court, 

outside the presence and hearing of the jury, pursuant to [Evid. Code] Section 402. The 

court shall state on the record its ruling and its reasons therefor.”
15

cases “was procedural and ... didn’t directly reduce punishment ... the [California] 

Supreme Court dug deeper.” (Venable, supra, at p. 456.) The Venable court was 

persuaded that the appropriate consideration is whether the statute “ ‘by design and 

function’ ” provides the potential for an ameliorative effect even where the “legislative 

changes ... did not directly or necessarily affect punishment.” (Id. at pp. 456-457, 

quoting Frahs, supra, at p. 624.)13

Venable was further persuaded by this court’s majority opinion in People v. 

Burgos (2022) 77 Cal.App.5th 550, review granted July 13, 2022, S274743 (Burgos), 

finding that newly enacted section 1109, which permitted defendants to request a 

bifurcated trial of gang charges and enhancements, had retroactive effect. (Venable, 

supra, 88 Cal.App.5th at p. 457.) The important point expressed in Burgos, according to 

Venable, was that “bifurcation increases the possibility of acquittal, ‘which necessarily 

reduces possible punishment.’ (Burgos, at p. 567, review granted.)” (Venable, supra, 88 

Cal.App.5th at pp. 457-458.) 

Respectfully, we do not agree with the conclusion reached in Venable that 

Evidence Code section 352.2 is retroactive. The Legislature, acting within its authority, 

has determined that additional safeguards are necessary before “creative expression” can 

be introduced by “a party.” (Evid. Code, § 352.2, subd. (a).) Although the new statute 

requires trial courts to exercise heightened caution in deciding whether to admit such 

evidence, in enacting Evidence Code section 352.2, the Legislature has not prohibited 

forms of creative expression from being utilized in a criminal proceeding. 

13 The Venable court also cited People v. Superior Court (Lara) (2018) 4 Cal.5th 

299 (Lara) in which the California Supreme Court concluded that Proposition 57, which 

changed certain juvenile court procedures, had retroactive application. (Venable, supra, 

88 Cal.App.5th at p. 457.) Again, it was the Supreme Court’s emphasis on how the 

“effect of the change was to increase the likelihood of a lesser sentence for a class of 

defendants” that was important to the analysis in Venable. (Ibid.)
16

“Generally, statutes are presumed to apply only prospectively. [Citation.]” 

(Frahs, supra, 9 Cal.5th at p. 627.) In Estrada, the California Supreme Court held “that 

amendatory statutes that lessen the punishment for criminal conduct are ordinarily 

intended to apply retroactively.” (Frahs, supra.) In assessing whether Evidence Code 

section 352.2 is retroactive, we believe the statute is considerably different from the 

changes in law made in the cases relied upon by Venable. For example, we are not 

dealing here with an amendatory act that “ameliorated the possible punishment for a class 

of persons.” (Lara, supra, 4 Cal.5th at p. 308 [i.e., juveniles] (italics added); see also 

Frahs, supra, 9 Cal.5th at p. 631 [i.e., defendants who suffer from a qualifying mental 

disorder].) Evidence Code section 352.2 applies to any criminal proceeding in which “a 

party” seeks to introduce evidence of creative expression. (Id. at subd. (a), italics added.)

We conclude that any link between Evidence Code section 352.2’s additional lens 

for evaluating evidence of creative expression and a lessening of punishment for criminal 

conduct is too attenuated to warrant retroactive application. Although the Legislature, in 

enacting Evidence Code section 352.2, may have been concerned about bias against 

people of color and people who express themselves in ways that are stereotypically 

associated with people of color, the statute is not so narrow in scope. While it will likely 

be utilized most frequently in gang cases, the statute itself does not contain any such 

limitation, nor is it limited to any particular form of creative expression, whether it be 

music, lyrics, or, as in this case, tattoos. 

In our view, the statute may be used by any party to a criminal proceeding, not just 

a defendant. For example, the prosecution could invoke Evidence Code section 352.2 in 

a case where a defendant offers the creative expression of a codefendant or a third party 

in an attempt to implicate that other person for the crime(s) at issue. Assuming the 

prosecution succeeded in excluding creative expression evidence offered by a defendant 

in such a case, the impact of the statute would be the opposite of ameliorative. 
17

Our research has disclosed no case, aside from Venable, which has held that an 

amendment to the Evidence Code has retroactive application.14 In Frahs, the statutory 

changes at issue were to the Penal Code. (Frahs, supra, 9 Cal. 5th at pp. 626-627.) In

Lara, the changes were to the Penal Code and the Welfare and Institutions Code by way 

of Proposition 57. (Lara, supra, 4 Cal.5th at p. 303.) In criminal cases, the prosecution, 

the defense, and the trial courts apply the existing rules of evidence to determine what 

evidence is and is not admissible. We conclude that the changes imposed by Evidence 

Code section 352.2 do not apply retroactively. 

However, as explained in our discussion of Sanchez’s Evidence Code section 352 

argument below, even if Evidence Code section 352.2 were retroactive, Sanchez cannot 

show that he was prejudiced in light of the other evidence of his guilt presented to the 

jury. 

2. No abuse of discretion in admitting tattoo evidence under Evidence 

Code section 352 

Sanchez next argues that, even if Evidence Code section 352.2 does not apply, the 

trial court improperly concluded that the tattoo evidence was not more prejudicial than 

probative under Evidence Code section 352. In Sanchez’s view, the trial court should 

have determined when he got the tattoos in question, i.e., whether the acquisition of the 

tattoos was remote in time to when the shooting took place, as well as taken into 

consideration the fact that no rival gang members or Norteño dropouts were injured or 

killed in the shooting. Sanchez also asserts that, to the extent the tattoos established his 

gang membership, it was cumulative to the testimony presented by both the gang expert 

14 We do not foreclose the possibility that a future change to the Evidence Code 

could be deemed ameliorative and within the spirit of Estrada. The Fourth District Court 

of Appeal, Division One, and the Third District Court of Appeal have disagreed with 

Venable and held that Evidence Code section 352.2 is not retroactive. (People v. Ramos 

(2023) 90 Cal.App.5th 578, 596, review granted July 12, 2023, S280073; People v. 

Slaton (2023) 95 Cal.App.5th 363, review granted Nov. 15, 2023, S282047.)
18

and the classification officer and that the trial court failed to consider the propensity 

inferences a jury would draw based on Sanchez’s race. We disagree.

a. Applicable legal principles 

We review the trial court’s evidentiary rulings for an abuse of discretion. (People 

v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla).) A court has broad discretion under 

Evidence Code section 352 to exclude relevant evidence if it determines the probative 

value is substantially outweighed by its possible prejudicial effects. (People v. Merriman 

(2014) 60 Cal.4th 1, 74 (Merriman), citing People v. Clark (2011) 52 Cal.4th 856, 893.)

“ ‘Gang evidence is admissible if it is logically relevant to some material issue in 

the case other than character evidence, is not more prejudicial than probative, and is not 

cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced 

only to “show a defendant’s criminal disposition or bad character as a means of creating 

an inference the defendant committed the charged offense. [Citations.]” ’ ” (People v. 

Coneal (2019) 41 Cal.App.5th 951, 964.) The California Supreme Court has made clear 

that gang evidence is admissible, even in non-gang cases, so long as that evidence is “ ‘ 

“relevant to an issue of motive or intent.” ’ ” (People v. McKinnon (2011) 52 Cal.4th 

610, 655.) However, “ ‘[e]ven where gang membership is relevant,’ . . . ‘because it may 

have a highly inflammatory impact on the jury trial courts should carefully scrutinize 

such evidence before admitting it.’ ” (Ibid.) In such cases, the probative value of such 

evidence in establishing a defendant’s motive “ ‘ “generally exceeds its prejudicial effect, 

and wide latitude is permitted in admitting evidence of its existence.” ’ ” (Ibid.)

“We will not reverse a court’s ruling on such matters unless it is shown ‘ “the trial 

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that 

resulted in a manifest miscarriage of justice.” ’ ” (Merriman, supra, 60 Cal.4th at p. 74, 

quoting People v. Brown (2003) 31 Cal.4th 518, 534.) Generally, the application of 

ordinary rules of evidence does not implicate the federal Constitution; accordingly, we 
19

review allegations of error under the “reasonable probabilit[y]” standard of People v. 

Watson (1956) 46 Cal.2d 818, 837 (Watson), unless the erroneous admission of evidence 

affects the fundamental fairness of the trial, in which case we apply the de novo standard 

of review. (People v. Marks (2003) 31 Cal.4th 197, 227; People v. Albarran (2007) 149 

Cal.App.4th 214, 224, fn. 7.) 

b. The trial court did not abuse its discretion in admitting the 

evidence under Evidence Code section 352 

Sanchez was charged with shooting at three people, killing one and wounding 

another. According to the prosecution’s theory of the case, Sanchez intended to kill F.F., 

a Norteño dropout, and the three victims were inside F.F.’s tent. As a result, evidence of 

Sanchez’s tattoos were probative of his motive, i.e., killing Norteño dropouts. The 

prosecution’s gang expert testified that Norteño gangs viewed dropouts as traitors and 

that every dropout was “green lit” for execution by the gang. The gang expert also 

confirmed that the photos of Sanchez’s tattoos were a part of the evidence on which he 

relied in forming the opinion that Sanchez was an active Norteño gang member at the 

time of the shooting. “A trial court has wide latitude to admit evidence relevant to 

motive.” (People v. Johnson (2019) 32 Cal.App.5th 26, 62.) Where, as here, the alleged

motivation of the crime was gang related, “evidence tending to show” gang membership 

is “highly relevant.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1373 (Olguin).) 

In this case, the prejudicial impact of the gang evidence was limited. Although 

two witnesses testified to Sanchez’s gang membership, there was no testimony regarding 

Norteños’ specific criminal activities, aside from a homicidal animosity to both Sureños 

and Norteño dropouts, or any other gang crimes committed by Sanchez. Furthermore, the 

trial court acknowledged the prejudicial weight of the evidence, though it found the 

probative value was greater. Mindful of the potential prejudice and misuse of the 

evidence, the trial court instructed the jury that it was to consider the evidence of gang 
20

activity only to determine whether Sanchez had the motive or necessary intent to commit 

the charged offenses and it could not conclude from the evidence that Sanchez had a bad 

character or was predisposed to criminality. 

On these facts and trial record, we conclude that the trial court did not abuse its 

discretion in admitting the photos of Sanchez’s tattoos. (Olguin, supra, 31 Cal.App.4th at 

pp. 1372-1372.) Likewise, there was no violation of Sanchez’s constitutional rights to 

due process. The admission here of probative evidence related to motive was both 

appropriate and unexceptional, and it did not render Sanchez’s trial fundamentally unfair. 

(See People v. Jones (2013) 57 Cal.4th 899, 949; see also People v. Lindberg (2008) 45 

Cal.4th 1, 26; Jammal v. Van de Kamp (9th Cir.1991) 926 F.2d 918, 920.)

c. No ineffective assistance in relation to tattoo evidence

Sanchez next argues that his trial counsel was constitutionally ineffective for 

“failing to litigate the admissibility of the tattoos under Evidence Code section 352 and 

the due process clauses to the California and United States Constitutions.” Sanchez’s 

argument, as best we can follow, is that trial counsel only made “boilerplate pretrial 

objections” to the gang evidence and therefore failed to exclude the “tattoo evidence 

[which] played prominently in the prosecution’s case.” We disagree.

i. Applicable legal principles

The standard for evaluating claims that counsel provided constitutionally 

ineffective assistance is set forth in Strickland v. Washington (1984) 466 U.S. 668, 687-

694 [104 S. Ct. 2052, 80 L. Ed. 2d 674], which states: “[t]o secure reversal . . . upon the 

ground of ineffective assistance of counsel under either the state or federal Constitution, a 

defendant must establish (1) that defense counsel’s performance fell below an objective 

standard of reasonableness, i.e., that counsel’s performance did not meet the standard to 

be expected of a reasonably competent attorney, and (2) that there is a reasonable 

probability that defendant would have obtained a more favorable result absent counsel's 
21

shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) “On direct 

appeal, a conviction will be reversed for ineffective assistance only if (1) the record 

affirmatively discloses counsel had no rational tactical purpose for the challenged act or 

omission, (2) counsel was asked for a reason and failed to provide one, or (3) there 

simply could be no satisfactory explanation. All other claims of ineffective assistance are 

more appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 

Cal.4th 986, 1009.)

It is the defendant’s burden of demonstrating by a preponderance of the evidence 

that his counsel’s performance fell below an objective standard of reasonableness. (In re 

Thomas (2006) 37 Cal.4th 1249, 1257.) A “mere failure to object to evidence or 

argument seldom establishes counsel’s incompetence.” (People v. Ghent (1987) 43 

Cal.3d 739, 772.) “Unless a defendant establishes the contrary, we shall presume that 

‘counsel’s performance fell within the wide range of professional competence and that 

counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ ” 

(People v. Ledesma (2006) 39 Cal.4th 641, 746.) Further, “[f]ailure to raise a meritless 

objection is not ineffective assistance of counsel.” (People v. Bradley (2012) 208 

Cal.App.4th 64, 90.)

ii. Analysis

The record does not support Sanchez’s argument for ineffective assistance of 

counsel. Defense counsel’s in limine motion objected to gang evidence generally and 

requested that the court “make appropriate rulings on the parties[’] anticipated proffered 

[gang related] evidence.” The motion specifically noted that the evidence’s “relevance 

must be evaluated against potential prejudice to [Sanchez] under California Evidence 

Code [section] 352.” At trial, when the trial court considered whether to admit 

photographs of Sanchez’s tattoos, defense counsel again argued that the tattoo evidence 

was not relevant because it was more prejudicial than probative. After the trial court 
22

turned to consideration of the six tattoo photographs, defense counsel objected that the 

introduction of “anything beyond one tattoo” was unduly prejudicial since one tattoo 

would be sufficient to establish Sanchez’s membership in or affiliation with a Norteño 

gang. 

As discussed above, the trial court did not abuse its discretion in admitting the 

tattoo evidence nor did the admission of that evidence violate Sanchez’s due process 

rights. Accordingly, defense counsel was not ineffective simply because he failed in his 

efforts to persuade the court that the evidence was more prejudicial than probative. 

d. Even assuming error, admission of the evidence was not 

prejudicial 

Sanchez contends that the erroneous admission of the tattoo evidence was not 

harmless under either state or federal law.15 We disagree.

To show reversible error under state law, Sanchez must show a reasonable 

probability of obtaining a more favorable result at trial if the evidence had been excluded. 

(Watson, supra, 46 Cal.2d at p. 836.) Sanchez also asserts that we should examine 

prejudice under the stricter federal standard set forth in Chapman v. California (1967) 

386 U.S. 18 (Chapman) in which the burden would be on the Attorney General to show 

the error was harmless beyond a reasonable doubt. Because we have already determined 

that the trial court did not abuse its discretion in admitting the tattoo evidence and 

Sanchez has not shown that introduction of the evidence rendered his trial fundamentally 

unfair, we will apply the standard set forth in Watson although we conclude there was no 

prejudice under either approach. 

15 As to Sanchez’s contention that the evidence of his tattoos raised implicit racial 

and gender stereotypes, specifically that young Latino males are violent, Sanchez does 

not point to anything in the trial court record which reflects such alleged biases played 

any role in this trial. (Rule 8.204(a)(1)(C).) Allegations that are not supported by 

references to the record will be deemed forfeited. (Myers v. Trendwest Resorts, Inc. 

(2009) 178 Cal.App.4th 735, 745.)
23

In this case, the jury was instructed that it could “consider evidence of gang 

activity only for the limited purpose of deciding whether [Sanchez] had a motive to 

commit the crimes charged or [Sanchez] had the intent necessary for the crimes charged 

in Count[s] 1, 2[,] and 3.” The jurors were also instructed that they “may not consider 

this evidence for any other purpose[] [and] may not conclude from this evidence that 

[Sanchez] is a person of bad character or that he has a disposition to commit crime.” 

Ultimately, Sanchez cannot show prejudice under either Watson or Chapman due 

to the ample evidence aside from his tattoos establishing his guilt. The prosecutor 

emphasized in rebuttal argument that Sanchez was not on trial “because [he is] a gang 

member and has gang tattoos.” According to the prosecutor, the evidentiary value of 

Sanchez’s “D.O killa” tattoo was tied to the other evidence showing that he went looking 

for F.F. that night and, within minutes of the shooting, was apprehended in the area with 

the murder weapon on his person. 

In addition, the prosecution’s gang expert opined that Sanchez was a Norteño gang 

member and that Norteños considered dropouts to be traitors who were subject to

execution. Even without the evidence of Sanchez’s tattoos, the jury saw the video 

footage of Sanchez running back to his SUV after the first shots can be heard, then 

running away from his vehicle down Industrial Street. The jury heard that Sanchez had a 

.22–caliber semi–automatic handgun in his waistband when he was arrested and that the 

cartridges test–fired from this weapon matched the .22–caliber cartridges recovered from 

the scene of the shooting. This evidence would have been sufficient for the jury to 

conclude that Sanchez was the person who shot at the three victims that night.

In light of the overwhelming evidence of guilt, any error in the admission of 

Sanchez’s tattoos was not prejudicial applying either state or federal constitutional

standards of prejudice. (Watson, supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at 

p. 24.)
24

B. Admitting the recorded statements did not violate Sanchez’s Sixth 

Amendment rights

Sanchez next argues that the trial court erred in admitting the recorded statements 

of Sandra M. and Brandon H. as this testimony violated his rights under the Sixth and 

Fourteenth Amendments.16 

1. Additional background

Before trial, Sanchez brought an in limine motion to exclude the evidence of 

statements recorded by police officers’ body cameras when they spoke to Sandra M. and 

Brandon H. at the scene of the shooting.17 The prosecution moved to admit those 

statements under the spontaneous statement exception to the hearsay rule provided by 

Evidence Code section 1240.18 The trial court viewed the recordings and determined that 

the recorded statements of both witnesses/victims could be admitted. 

As to Sandra M.’s statements, the trial court indicated that she was “clearly under 

the stress of the event” after a person she viewed as a son, i.e., Adam G., was shot in 

16 Sanchez’s in limine motion argued that these statements must be excluded 

because their admission would violate his Sixth Amendment right to confront adverse 

witnesses under Crawford v. Washington (2004) 541 U.S 36 [124 S.Ct. 1354, 158 

L.Ed.2d 177] (Crawford) and also that the hearsay statements were not admissible under 

the spontaneous statements exception set forth in Evidence Code section 1240. On 

appeal, Sanchez has abandoned his argument that the statements do not qualify as 

spontaneous statements, focusing exclusively on his objection under Crawford and the 

confrontation clause. 

17 The prosecution initially also sought to introduce Brandon H.’s statements to 

police after he was transported to the hospital for treatment of his gunshot wound and 

Sandra M.’s statements made during a subsequent interview at the police station. At the 

hearing on Sanchez’s in limine motion, the prosecution confirmed that it was no longer 

seeking to introduce the recordings of those two statements. 

18 Evidence Code section 1240 provides that “[e]vidence 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.”
25

front of her. In the video, Sandra M. is “still crying, still trying to catch her breath” and 

“police [were] allowed to ask the victim to describe the attack.” The trial court noted that 

her “initial statements were going to the general basic facts of the incident” at a time 

when the police were still collecting “immediate info[rmation] to assist in catching a 

suspect at large in a homicide and attempted homicide.” 

The trial court similarly found that Brandon H. was “clearly under the stress of the 

event” when police spoke to him “within 9 minutes to ... 11 minutes of the actual 

shooting.” Brandon H. had also been shot and was bleeding from his wound as he spoke 

to police. The police officers’ questions were “asked in order to deal with that

emergency and ... [were] pretty focused [on] ... what happened, who are we looking for, 

where did they go?”

At trial, the police officers who interacted with Sandra M. and Brandon H. 

testified about their conversations at the scene and the videos of those conversations were 

played for the jury and admitted into evidence. 

2. Applicable legal principles

“Hearsay is ‘evidence of a statement that was made other than by a witness while 

testifying at the hearing and that is offered to prove the truth of the matter stated.’ (Evid. 

Code, § 1200, subd. (a).) .... Hearsay evidence is generally inadmissible unless it 

satisfies a statutory exception. (Evid. Code, § 1200, subd. (b).)” (People v. Turner

(2020) 10 Cal.5th 786, 821.) “To qualify for admission under the spontaneous statement 

exception to the hearsay rule, ‘an utterance must first purport to describe or explain an act 

or condition perceived by the declarant. (Evid. Code, § 1240, subd. (a).) Secondly, the 

statement must be made spontaneously, while the declarant is under the stress of 

excitement caused by the perception. (Id., subd. (b).)’ [Citation.]” (People v. Morrison

(2004) 34 Cal.4th 698, 718.) 
26

In Crawford, supra, 541 U.S 36, the United States Supreme Court held that 

admission of “testimonial” hearsay violates the Confrontation Clause of the Sixth 

Amendment unless the declarant can be cross-examined at trial or the declarant is 

unavailable to testify at trial and the defendant had a prior opportunity for cross–

examination. The California Supreme Court subsequently explained that “[i]n light of 

our [state] hearsay rules and [Crawford], a court addressing the admissibility of out-ofcourt statements must engage in a two-step analysis. The first step is a 

traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove 

the truth of the facts it asserts; and does it fall under a hearsay exception? If 

a hearsay statement is being offered by the prosecution in a criminal case, and 

the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are 

not satisfied, a second analytical step is required. Admission of such a statement violates 

the right to confrontation if the statement is testimonial hearsay, as the high court defines 

that term.” (People v. Sanchez (2016) 63 Cal.4th 665, 680.) 

In Davis v. Washington (2006) 547 U.S. 813, 822 [126 S.Ct. 2266, 165 L.Ed.2d 

224] (Davis), the U.S. Supreme Court described the rubric courts must use to determine 

whether statements to police or other government officials are “testimonial” or 

“nontestimonial.” “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.” (Ibid.) In People v. Chism

(2014) 58 Cal.4th 1266, the California Supreme Court explained that courts should 
27

consider the following six factors19 in deciding whether the statements qualify as 

testimonial: (1) an objective evaluation of the circumstances of the encounter and the 

statements and actions of the individuals involved; (2) whether the statements were made 

during an ongoing emergency or under circumstances that reasonably appeared to present 

an emergency, or were obtained for purposes other than for use by the prosecution at 

trial; (3) whether any actual or perceived emergency presented an ongoing threat to first 

responders or the public; (4) the declarant’s medical condition; (5) whether the focus of 

the interrogation had shifted from addressing an ongoing emergency to obtaining 

evidence for trial; and (6) the relative formality of the statement and the circumstances 

under which it was obtained. (Id. at p 1289.) “The existence of an emergency or the 

parties’ perception that an emergency is ongoing is among the most important 

circumstances that courts must take into account in determining whether an interrogation 

is testimonial.” (Michigan v. Bryant (2011) 562 U.S. 344, 367 [179 L. Ed. 2d 93, 131 S. 

Ct. 1143].) Whether there is an emergency depends “on the type and scope of danger 

posed to the victim, the police, and the public.” (Id. at p. 371.)

On appeal, we undertake a de novo review of the question whether admission of 

evidence violated a defendant’s Sixth Amendment right of confrontation. (People v. 

Johnson (2007) 150 Cal.App.4th 1467, 1477-1478.) We evaluate the primary purpose for 

which a statement was taken under an objective standard, “considering all the 

circumstances that might reasonably bear on the intent of the participants in the 

conversation.” (People v. Cage (2007) 40 Cal.4th 965, 984.)

3. Analysis

We begin our analysis by noting that, although the trial court did not expressly 

mention Evidence Code section 1240 when it ruled on in limine motions, it found that 

19 These six factors were originally set forth at greater length in People v. 

Blacksher (2011) 52 Cal.4th 769, 813-815.
28

both Sandra M. and Brandon H. were “under the stress of the event” when the recordings 

were made. It is clear that the statements at issue qualify for admission as spontaneous 

statements under that statute and Sanchez does not argue otherwise on appeal. Instead, 

he contends that, notwithstanding their admissibility under Evidence Code section 1240, 

the hearsay statements were testimonial and thus run afoul of Crawford’s prohibition.

Based on our de novo review, we conclude that the recorded statements of Sandra 

M. and Brandon H. were nontestimonial. The recordings took place within about 10 

minutes of the shooting at which time both victims were under the stress of the event and 

Brandon H. was suffering from a gunshot wound to his shoulder. The officers’ questions 

were principally focused on the shooter’s physical description and the direction in which 

he fled, therefore helping the police respond to an ongoing emergency, i.e., locating and 

arresting an armed and dangerous suspect who was still at large.20 

To the extent that the officers elicited information about what might have 

motivated the shooting, i.e., that Sanchez was looking for F.F., that information was also 

pertinent to understanding the possible scope of the emergency. For example, if the 

shooter was intent on shooting a particular person, such as F.F. in this case, police would 

want to try to locate F.F. to warn or protect him as well as try to find the suspect. If the 

shooter had instead either given no indication as to who he was targeting or expressed a 

20 We are not persuaded by Sanchez’s assertion that, once a notification came in 

that a suspect generally matching the description(s) provided had been apprehended, 

every statement thereafter became testimonial. The notice consisted of the following: 

“[Unidentified] Speaker: **** someone matching   Industrial at Vertin[,]” and 

“[Unidentified] Speaker: ** ** back alleyway where it dead ends into the businesses.” 

First, it is unknown whether the police officer, whose attention was presumably focused 

primarily on talking to Sandra M., heard or processed these cursory and vague statements 

that came over the radio. Second, even if he had, the unidentified speaker did not say that 

a suspect had been taken into custody or that the (detained) individual had a . firearm on 

his person. Absent those critical details, the officer speaking to Sandra M. would have 

had no reason to believe the armed shooter was not still at large.
29

generalized desire to shoot anyone he came across, police would have greater concern for 

the safety of anyone the shooter might happen upon prior to his arrest. 

Under the circumstances presented here, the officers’ questions were designed to 

principally “meet an ongoing emergency” and the fact that some of the information 

provided was also evidence that could “establish or prove past events” does not render 

Sandra M.’s and Brandon H.’s recorded statements testimonial. (Davis, supra, 547 U.S. 

at p. 822.) Accordingly, the admission of those statements did not violate Sanchez’s 

Sixth Amendment rights.

C. Assuming error, Sanchez cannot show he was prejudiced by admission of the 

statements

Even assuming that admission of the recorded statements violated Sanchez’s rights 

under the confrontation clause of the Sixth Amendment, he cannot show he was 

prejudiced thereby. 

“ ‘ “Confrontation clause violations are subject to federal harmless-error analysis 

under Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 87 S. Ct. 824].” 

[Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury 

would have reached the same verdict absent the error.’ [Citation.]” (People v. Livingston

(2012) 53 Cal.4th 1145, 1159 (Livingston).)

Sanchez argues that, without Sandra M.’s statement that F.F. lived in the tent and 

that Sanchez was looking for him, the jury would have had no evidence to show that the 

motive for the shooting was because F.F. was a Norteño dropout. That is not so. F.F.

testified at trial that he was a Norteño dropout and that he lived in the tent that Sanchez 

shot into that night. While the jury would not have heard that Sanchez asked for F.F. by 

his moniker before the shooting, F.F.’s testimony in conjunction with the gang expert’s 

testimony regarding Norteño gang members’ attitude toward dropouts and Sanchez’s 

“D.O killa” tattoo were compelling evidence of Sanchez’s motive.
30

Sanchez also suggests that the recorded statements were important to show 

premeditation because Sandra M. said that, after she told him F.F. was not present, he 

waited outside the tent for seven minutes before opening fire. Sanchez overlooks the 

evidence of timing from the surveillance videos, which showed that he parked near the 

tent city around 24 minutes before the shooting then exited the car 11 minutes before he 

shot into the occupied tent. This evidence independently demonstrated that Sanchez, a 

Norteño gang member with a “D.O killa” tattoo, spent nearly 30 minutes near the scene 

before opening fire into a tent where a Norteño dropout resided. 

Accordingly, even without the recorded statements, “ ‘it is clear beyond a 

reasonable doubt that a rational jury would have reached the same verdict ....’ 

[Citation.]” (Livingston, supra, 53 Cal.4th at p. 1159.)

D. No cumulative error

Sanchez next contends that the cumulative effect of the purported errors discussed 

above warrants reversal of the judgment. “In theory, the aggregate prejudice from 

several different errors occurring at trial could require reversal even if no single error was 

prejudicial by itself.” (In re Reno (2012) 55 Cal.4th 428, 483.) Here, we have found 

no errors, and where we assumed error, we also found no prejudice. Consequently, we 

reject Sanchez’s cumulative error argument. 

E. Sentencing error

Sanchez raises several purported errors in his sentencing and, in the alternative, 

argues that trial counsel was ineffective in failing to object to these errors below. First, 

he argues that the aggravating factor that the victims were vulnerable was not supported 

by substantial evidence and, in any event, the jury instruction on this factor was 

erroneous. Second, Sanchez argues there was insufficient evidence to support the jury 

finding true the allegation that his attempted murder of Sandra M. (count 3) involved 

great violence, great bodily harm, threats of great bodily harm, or other acts disclosing a 
31

high degree of cruelty, viciousness, or callousness. Third, Sanchez contends the trial 

court erred in relying on the aggravating factor that he was armed with or used a weapon 

at the time of the commission of the crime since use of a weapon was an element of the 

offenses alleged in counts 4 and 5. As discussed below, we do not find reversible error.

1. The trial court’s prefatory remarks and Sanchez’s sentence

Before pronouncing sentence, the trial court made the following remarks: “The 

Court has considered the issues and considered the facts and circumstances of this brutal, 

senseless crime and of the defendant’s criminal history and his future potential in 

determining whether the dismissal of the enhancements in total or in part is appropriate or 

would endanger public safety. [¶] This was a cold, calculated and deliberate first degree 

murder. And the defendant is outwardly proud of his violent acts. His tattoos obtained 

before and after this event [] certainly shows that he is proud of his conduct. [¶] He has 

three prior commitments. He’s engaged in crimes involving gang[s] and weapons for 

years and has shown no indication whatsoever of leaving that life. And I want him to 

understand that we understand what that life is about. That life is about fear and 

destruction, fear and destruction the gang has had on you and those close to you, and the 

fear and the destruction you have caused because of it. That is your life. That’s the 

choices you’ve made. To live with fear, to be destroyed, and to cause fear to others and 

to destroy others. [¶] You’ve destroyed families. You’ve destroyed the life of a 17–

year–old [sic] minor. And this is what you choose. And you seem to be quite proud of it. 

I hope in the time you spend in prison that you realize that’s the whole life you have, fear 

and destruction. And maybe you can start thinking about something other than fear and 

destruction.” 
32

For the two counts of attempted murder (counts 2 and 3) and two counts of assault 

with a semiautomatic firearm, the trial court imposed upper term sentences21 of nine 

years. In explaining its determinate sentencing decisions, the trial court stated it was 

imposing upper terms on counts 2 through 5 “based upon the factors of aggravation found 

by the jury and agreed with by this Court.” Those two factors of aggravation were: (1) 

the charged offense involved great violence, great bodily harm, threats of great bodily 

harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 

4.421(a)(1)); and (2) Sanchez was armed with or used a weapon at the time of the 

commission of the crime (rule 4.421(a)(2)). 

2. Vulnerable victim factor

Sanchez argues that the jury’s finding that the victims were particularly vulnerable 

was not supported by substantial evidence and that the jury was misinstructed on that 

factor. However, this aggravating factor was not alleged in connection with counts 2, 3, 

4, or 5,22 and thus the jury was not called upon to find it true or not true. The only count 

as to which the jury found it true was count 1, the murder of Adam G. At no point during 

the trial court’s recitation of the jury verdicts did it state that the jury found Sandra M. or 

Brandon H. to be particularly vulnerable, nor did the verdict forms ask the jury to make 

any such finding as to any victim other than Adam G. 

21 The sentences on counts 4 and 5 were stayed pursuant to section 654. 

22 Section 1170, subdivision (b), applies when “a judgment of imprisonment is to 

be imposed and the statute specifies three possible terms . . . .” This statute “describes 

the sentencing court’s discretion to choose an aggravated, middle, or lower determinate

term based on its consideration of mitigating and aggravating factors. [Citations.]” 

(People v. Estrada (2020) 58 Cal.App.5th 839, 843 (Estrada).) Sanchez’s conviction for 

murder in the first degree (count 1) carries a mandatory penalty of “death, imprisonment 

in the state prison for life without the possibility of parole, or imprisonment in the state 

prison for a term of 25 years to life.” “Sentences ... of a number of years to life ... are 

not subject to the determinate sentencing law (§ 1170 et seq.). [Citations.]” (Estrada, 

supra.) 
33

Because there is nothing in the record to support Sanchez’s claims of error with 

respect to the jury’s finding on this aggravating factor, we do not consider them further. 

3. Aggravating factor as to Count 3 (Sandra M.)

Sanchez next argues that, because there was no evidence that Sandra M. suffered 

any physical injury in the shooting, the trial court should not have relied on the jury 

finding true the allegation that her attempted murder (count 3) “involved great violence, 

great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of 

cruelty, viciousness, or callousness.” The Attorney General argues that Sanchez has 

forfeited this argument by failing to raise it at sentencing. We need not reach the 

Attorney General’s forfeiture argument and ultimately conclude that Sanchez’s claim has 

no merit.23

Sanchez’s argument is premised on a faulty assumption: that physical harm to the 

victim is a necessary condition of the aggravating factor. The language of the 

aggravating factor is not so limited. It applies when the crime, in this case the attempted 

murder of Sandra M., involves “great violence, great bodily harm, threat of great bodily 

harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” 

(Rule 4.421(a)(1).) Here, after not locating his intended victim, Sanchez fired blindly 

into a tent he knew was occupied by at least three other people, none of whom were (to 

anyone’s knowledge) gang members or gang dropouts. Based upon our review of the 

record, there was substantial evidence to support the jury finding this crime involved

“great violence, ... threat of great bodily harm, or other acts disclosing a high degree of 

cruelty, viciousness, or callousness.” (Rule 4.421(a)(1).)

23 Since we address the merits of the argument, we need not and do not consider 

Sanchez’s alternative argument that trial counsel was ineffective for failing to object on 

this ground at sentencing. 
34

Accordingly, we conclude that the trial court did not err in applying the jury’s true 

finding on this allegation to Sanchez’s conviction on count 3. 

4. Dual use of arming/using a firearm allegation in connection with 

counts 2 through 5

Sanchez argues that the jury was not properly instructed that it could not find true 

the allegation that use of a firearm as an aggravating factor because that fact is an element 

of the substantive offenses.24 In the alternative, he contends his trial counsel was 

ineffective for failing to request an appropriate instruction. The Attorney General argues 

that Sanchez has forfeited the claim by failing to request a clarifying instruction, and 

alternatively, that his counsel was not ineffective because any error below was harmless. 

Again, we do not reach the Attorney General’s forfeiture argument, but conclude that, on 

the merits, any error was harmless.25 

a. No error in imposing upper term on attempted murder (counts 2 

and 3)

We first address the trial court’s allegedly improper use of the arming allegation as 

an aggravating factor for the attempted murders of Brandon H. (count 2) and Sandra M. 

(count 3). Because being armed with or using a firearm is not an element of attempted 

murder (§§ 187, subd. (a), 667), use of that aggravating factor to impose an upper term 

for that offense would not constitute an improper dual use. While it is true that an 

aggravated sentencing term may not be imposed by using the fact of an enhancement 

unless punishment for the enhancement is struck (§ 1170, subd. (b); rule 4.420(c)), the 

trial court here did dismiss the personal use of a firearm enhancements (§ 12022.53, subd. 

(c)) that had been alleged in connection with counts 2 and 3. Because the trial court was 

24 The trial court relied on this aggravating factor in sentencing Sanchez on counts 

2 through 5 and Sanchez does not expressly differentiate between those counts in his 

brief. 

25 See footnote 23, ante.
35

not precluded from relying on the aggravating factors found true by the jury in 

connection with counts 2 and 3, there was no error in imposing upper terms on both of 

those counts. 

a. Any error in imposing upper term on assault with a firearm 

(counts 4 and 5) was harmless beyond a reasonable doubt

We now analyze whether the trial court erred in relying on the arming allegation in 

imposing upper term sentences on counts 4 and 5. The Attorney General concedes, as to 

these counts, that the trial court could not rely on the jury’s finding that Sanchez was 

armed as a factor in aggravation. “A circumstance which is an element of the substantive 

offense cannot be used as a factor in aggravation.” (People v. Clark (1992) 12 

Cal.App.4th 663, 666.) We agree that the trial court could not have relied on this factor 

in imposing an aggravated term. Because the trial court did not discriminate between the 

aggravating factors in announcing its sentencing decision, stating only that it was 

imposing upper terms “based upon the factors of aggravation found by the jury and 

agreed with by this Court[,]” we cannot say that the court did not commit sentencing 

error. However, as we explain below, any such error was harmless beyond a reasonable 

doubt.

The published opinions are in conflict on the standard of review to be applied 

when the court relies on multiple factors, some of which were not found by the jury or 

stipulated to by the defendant. (Compare People v. Flores (2022) 75 Cal.App.5th 495, 

500 [remand not required if appellate court concludes beyond a reasonable doubt that a 

jury would have found at least one aggravating factor true] with People v. Lopez (2022) 

78 Cal.App.5th 459, 466 (Lopez) [all aggravating factors must have been found true 

beyond a reasonable doubt; if only some factors would have been found true, it must be 

reasonably probable the same sentence would have been imposed based on those] 

and People v. Dunn (2022) 81 Cal.App.5th 394, review granted Oct. 12, 2022, S275655 
36

[if at least one aggravating factor would have been found true beyond a reasonable doubt 

and it is reasonably probable any remaining aggravating factors relied on in imposing 

sentence would have been found true, assess likelihood of same sentence being imposed 

absent factors not meeting that standard].) The issue is currently pending before our 

Supreme Court. (See People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review 

granted Aug. 10, 2022, S274942.)

At the first step of the Lopez analysis, the court, applying the standard set forth 

in Chapman, supra, 386 U.S. 18, decides whether “to conclude beyond a reasonable 

doubt that a jury would have found true beyond a reasonable doubt every factor on which 

the court relied, because the amended statute requires that every factor on which a court 

intends to rely in imposing an upper term, with the exception of factors related to a 

defendant’s prior conviction(s), have been admitted by the defendant or proven to a jury.” 

(Lopez, supra, 78 Cal.App.5th at p. 466.) If so, then the error is not prejudicial. (Ibid.) 

If not, then the analysis proceeds to the second step, where “a reviewing court can be 

certain, to the degree required by People v. Watson[, supra, 46 Cal.2d at page 836], that 

the trial court would nevertheless have exercised its discretion to select the upper term if 

it had recognized that it could permissibly rely on only” those aggravating factors that it 

could consider, “rather than all of the factors on which it previously relied.” (Id. at p. 

467, fn. 11.) If not, “then it is clear that remand to the trial court for resentencing is 

necessary.” (Ibid.)

Here, the jury found true two aggravating circumstances in conjunction with 

counts 4 and 5, specifically: (1) that the crimes involved great violence, great bodily 

harm, threat of great bodily harm, and other acts disclosing a high degree of cruelty, 

viciousness, and callousness; and (2) Sanchez was armed with or used a weapon at the 

time of the commission of the crimes. The Attorney General concedes that the jury 

should not have been asked to determine whether the second circumstance was true, and 
37

that the court was precluded from relying on that specific factor to impose an upper term 

sentence on counts 4 and 5. That is not the end of the inquiry, however, even under 

Lopez. Because the first factor, i.e., that the crimes involved great violence, etc., was a 

permissible aggravator, we examine whether we “can be certain, to the degree required 

by People v. Watson[, supra, 46 Cal.2d at page 836], that the trial court would 

nevertheless have exercised its discretion to select the upper term if it had recognized 

that it could permissibly rely on only” this aggravating factor. (Id. at p. 467, fn. 11.) In 

this case, based on the court’s extended description of the shooting as a “brutal, senseless 

crime” and Sanchez’s “outward[] [pride in] his violent acts[,]” there is no reasonable 

probability that the trial court would have imposed anything other than the upper term on 

both counts 4 and 5. Consequently, such error was not prejudicial and we do not find 

remand for resentencing on these counts to be necessary. 

III. DISPOSITION

The judgment is affirmed.
____________________________

WILSON, J.

WE CONCUR:

____________________________

GREENWOOD, P.J.

_____________________________

BAMATTRE-MANOUKIAN, J.

H050599

People v. Sanchez