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Filed 11/29/23 P. v. Sanchez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL REY SANCHEZ,

Defendant and Appellant.

E080429

(Super.Ct.No. FWV22001920)

OPINION

APPEAL from the Superior Court of San Bernardino County. Corey G. Lee, 

Judge. Affirmed.

Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant 

and Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Heather B. Arabarri and Steve 

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
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Angel Rey Sanchez argues his trial counsel provided him with ineffective 

assistance by agreeing to a response the trial court provided to a jury question. He was 

charged with two counts reflecting two acts of assault by means of force likely to cause 

great bodily injury when attacking his estranged biological mother. As argued, the first 

was punching and kicking her on a landing outside her apartment, and the second was 

pushing her down the nearby stairs after she stood up and pointed a knife at him. The jury 

asked the court to “specify the two 2 counts” and whether “specific evidence pertain[ed] 

to one charge vs. the other.” With the agreement of counsel, the trial court concluded the 

prosecution had clearly distinguished the two acts and responded to the jury by saying 

only that the two counts pertain to two different acts.

We conclude Sanchez’s claim fails for several reasons. The response to the jury’s 

inquiry was legally correct. There was an evident reasonable tactical basis for agreeing to 

it. And it is not reasonably probable the jury would have reached a more favorable result 

if the trial court had reiterated the prosecution’s election as to which acts applied to 

which count in its response. We therefore affirm the judgment.

I

FACTS

This case involves a violent episode that led to Sanchez’s conviction by a jury on 

two counts of assault by means of force likely to produce great bodily injury. (Pen. Code, 

§ 245, subd. (a)(4); unlabeled statutory citations refer to this code.)
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The victim was Sanchez’s biological mother, T.E., who had lost custody of 

Sanchez many years earlier, when he was around five- to seven-years old. Sanchez and 

T.E. had a limited relationship.

On June 5, 2022, Sanchez went to T.E.’s apartment on Valley Boulevard in 

Bloomington. There, Sanchez began drinking alcohol and became heavily intoxicated and 

threw up inside her apartment. T.E. said she felt Sanchez was disrespecting her home and 

feared his conduct would disturb her neighbors and cause her to lose her housing.

T.E. opened her front door and told Sanchez to leave. Sanchez threatened to attack 

her and then ran forward and pushed T.E. through the door to the landing outside her 

apartment. T.E. dropped to the ground to protect her body, and Sanchez began punching 

and kicking her. After T.E. stood up, Sanchez threw or pushed her down the stairs, and 

she rolled to the bottom.

T.E. testified that she kept a knife in the apartment to protect herself and was 

holding it during the assault. She said she did not use the knife against Sanchez, but she 

pointed it at him before he threw her down the stairs. She said she got up and went back 

up the stairs to prevent Sanchez, who was still at the top, from going back into her home. 

She said she still had the knife in her hand at that point. Sanchez told her he would leave 

if she gave him the knife, which she did, and he left.

T.E. called 911 and reported the assault. A San Bernardino deputy sheriff 

responded to the call and found Sanchez face down on a sidewalk outside the apartment 

building. The deputy said Sanchez was covered in vomit and appeared heavily 
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intoxicated. Sanchez had scrapes on his back and finger and a cut on his nose. The deputy 

said Sanchez appeared to be disoriented, unable to answer questions, and in and out of

consciousness. The deputy found T.E. “severely injured with multiple bumps, bruises, 

scratches all over her face and her body.” A hospital examination found she had bruising 

and abrasions on her face, hands, and back.

Sanchez testified and denied assaulting T.E. He said he went to her house because 

he had been in a homeless shelter and had a job interview. He wanted a place to shower 

and help buying some clothes. T.E. gave him money, and they went to a liquor store 

where he bought a pint of cinnamon-flavored whiskey and clothes. He said drinking that 

amount normally would put him to sleep, but instead it put him into a state he had never 

experienced before. He said he passed out and woke with a cut on his finger and marks 

on his face. He said he believed T.E. had laced his drink. Sanchez admitted he did not 

have a good relationship with his mother but said he would never assault her.

In instructing the jury, the trial court used CALCRIM No. 875 for the assault in 

count one and CALCRIM No. 875.1 for the assault in count two. As to the first count, the

court instructed the jury, “The defendant is charged in Count One with assault with force 

likely to produce great bodily injury in violation of Penal Code section 245. [¶] To prove 

that the defendant is guilty of this crime, the People must prove that: [¶] . . . The 

defendant did an act that by its nature would directly and probably result in the 

application of force to a person, and [¶] . . . The force used was likely to produce great 

bodily injury; [¶] . . . The defendant did that act willfully; [¶] . . . When the defendant 
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acted, he was aware of facts that would lead a reasonable person to realize that his act by 

its nature would directly and probably result in the application of force to someone; [¶] 

AND [¶] . . . When the defendant acted, he had the present ability to apply force likely to 

produce great bodily injury to a person.” The instruction for count two was identical but 

added a fifth element—that “[t]he defendant did not act in self-defense.” The court also 

instructed that simple assault is a lesser included offense for each count and reiterated

that the defense of self-defense applied only to count two. No instruction specified what

acts related to each count.

In closing arguments, the prosecution elected Sanchez’s punching and kicking 

T.E. as the assault for count one and the act of throwing T.E. down the stairs as the 

assault for count two. As to count one, the prosecutor said the evidence was that Sanchez 

“began to beat her. He kicked her. He punched her. . . . [¶] Therefore, that’s the act. The 

kicking, the punching, that by its very nature would directly and probably result in force.” 

As to count two, the prosecutor said, “[W]hat is Count 2? Count 2, you are going to be 

presented with your packet that includes 875.1. It adds one additional element. The 

defendant did not act in self-defense. . . . [¶] Count 2 is the stairs. . . . after Count 1, after 

kicking her, after punching her, at some point they got up, and he lifted her up, and he 

threw her down the stairs.” The prosecution also distinguished the two counts by arguing 

T.E.’s knife never came out before count 1 and therefore, Sanchez’s self-defense claim 

applied only to count 2.
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Defense counsel made the same distinction in her closing argument. Speaking of 

inconsistencies in T.E.’s testimony, counsel said, “She says that the first part of what 

happened, Count 1, is that Mr. Sanchez kicks and punches her. But her injuries don’t 

quite line up with that; right? . . . [¶] Her injuries are consistent with falling down the 

stairs and scraping. How many times did we hear about scraping? . . . So her injuries are 

consistent with being pushed down the stairs. But there is no evidence whatsoever with 

the Count 1 allegation, which is the kicking and punching. Remember, there’s two 

different counts. Count 1 we have the initial kicking and the punching, and Count 2 is 

pushing down the stairs.” Defense counsel similarly clarified that on “the allegation of 

kicking and punching, we’re not claiming self-defense. But the allegation of pushing 

down the stairs, we are claiming self-defense.”

In argument, defense counsel questioned why there were two separate counts. 

“Now, why are there two counts? Okay. This is a question that you should ask 

yourselves. Why? Why did the People charge this as two separate counts, and where do 

we draw the line? Why not charge him with one charge for kicking, and one count for 

punching, and one count for pushing? Why not just charge him with five or ten counts? If 

you believe it is excessively charged, that can be your determination as a jury. This is one 

continuing line of conduct.” The prosecution objected that this argument misstated the 

law, and the parties had an unreported bench conference, after which defense counsel 

moved on to another topic. The court later put on the record that it had sustained the 
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objection because it was improper to ask jurors to consider charging decisions, which are 

not evidence.

Early in their deliberations, the jury asked the court to “Please specify the 2 

counts. Is specific evidence pertaining to one charge vs. the other[?]”The trial court 

discussed possible responses with the prosecutor and an attorney standing in for 

defendant’s trial counsel. The trial court included defendant’s trial counsel by telephone. 

The parties agreed not to “clarify that one charge was kicking and punching versus the 

second charge related to the stairwell incident” because “it was pretty clear during 

closing arguments that Count 1 was pertaining to the kicking and punching, and Count 2 

was pertaining to the stairwell incident.” Instead, the court decided to say only, “ ‘Counts 

1 and 2 pertain to two different acts.’ Leave it at that, and send it back.”

After receiving this answer, the jury requested a read-back of T.E.’s testimony 

leading up to the point where she was questioned about the knife. The jury then asked for 

a read-back of Sanchez’s testimony. When those read-backs were completed, the jury 

asked, “Where did [T.E.] testify to being located before she was pushed/thrown down the 

stairs. She answered numerous times.” The court responded by referring the jury to the 

second paragraph of CALCRIM No. 200, which instructs, “You must decide what the 

facts are. It is up to all of you, and you alone, to decide what happened, based only on the 

evidence that has been presented to you in this trial.” The jury responded by requesting a 

read-back of T.E.’s testimony about her location before being thrown down the stairs. 

Ten minutes after that read-back, the jury returned guilty verdicts on both counts.
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The trial court sentenced Sanchez to a total state prison term of four years—a

middle term three-year sentence on count one and a consecutive one-year sentence (onethird the middle term) on count two.

II

ANALYSIS

Sanchez’s ineffective assistance of counsel argument is viable only if the trial 

court gave an insufficient answer to the jury’s request that he claims counsel should not 

have agreed to. The jury asked the trial court to “specify the 2 counts” and instruct

whether there “[i]s specific evidence pertaining to one charge vs. the other.”

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Sanchez 

argues the court’s answer that the two counts “pertain to two different acts,” allowed the 

jury to find him guilty of both counts based on only the acts of punching and kicking. He 

says the court should have confirmed the prosecution’s closing-argument election that 

count one related to his acts of punching and kicking while count two related to his act of 

pushing or throwing the victim down the stairs. However, it is generally sufficient for the 

prosecution to “make an election by ‘tying each specific count to specific criminal acts 

elicited from the victim’s testimony—typically in opening statement and/or closing 

argument.” (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown).)

1 Sanchez concedes that because his trial attorney agreed to the trial court’s 

answer, he has forfeited a direct challenge to the trial court’s decision on appeal. (People 

v. Thornton (2007) 41 Cal.4th 391, 427; see also (People v. Harris (2008) 43 Cal.4th 

1269, 1317 [invited error by proposing an answer the court gave the jury.]. He therefore 

focuses his claim on ineffective assistance.
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To establish ineffective assistance of counsel, Sanchez must show (1) deficient 

performance by trial counsel that fell below an objective standard of reasonableness 

under prevailing professional norms, and (2) a reasonable probability he would have 

obtained a more favorable result but for his trial counsel’s alleged deficient performance. 

(Strickland v. Washington (1984) 466 U.S. 668, 687-688.)

In deciding whether performance was deficient, we “give great deference to 

counsel’s tactical decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) Where the 

record does not show why counsel acted or failed to act in a certain way, we will reject 

the claim “unless counsel was asked for an explanation and failed to provide one, or 

unless there simply could be no satisfactory explanation.” (People v. Kraft (2000) 23 

Cal.4th 978, 1069.) Here, the record does not disclose trial counsel’s basis for agreeing to 

the response to the jury question, though the trial court indicated agreement with its

rationale that the prosecution’s election in closing argument was sufficient for the jury.

With these standards in mind, we conclude Sanchez’s ineffective assistance claim 

fails for several reasons. First, he cannot show his counsel’s agreement with the trial 

court fell below an objective standard of reasonableness. When a jury sends out a

question, the court is presented with the statutory obligation “to provide the jury with 

information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 

985.) Under “section 1138 the court must attempt ‘to clear up any instructional confusion 

expressed by the jury.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) “This 

means the trial ‘court has a primary duty to help the jury understand the legal principles it 
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is asked to apply. [Citation.] This does not mean the court must always elaborate on the 

standard instructions. Where the original instructions are themselves full and complete, 

the court has discretion under section 1138 to determine what additional explanations are 

sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments 

diverging from the standard are often risky.’ ” (People v. Solis (2001) 90 Cal.App.4th 

1002, 1015, quoting People v. Beardslee (1991) 53 Cal.3d 68, 97, italics added.) Sanchez 

argues the jury’s inquiry revealed confusion about the prosecution’s election, which the 

trial court was required to clear up in its response.

There is no requirement that the trial court build a prosecutor’s election into jury 

instructions. In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court explained that 

where the evidence discloses more acts than offenses charged, “[e]ither the prosecutor 

must select the acts relied on to prove the charges, or the jury must be given an 

instruction that it must unanimously agree beyond a reasonable doubt that the defendant 

committed the same specific criminal act.” (Id. at p. 307.) This holding has come to be 

known as the “ ‘either/or’ rule.” (People v. Gear (1993) 19 Cal.App.4th 86, 90.) If the 

prosecution had not made an election in this case, the trial court would have been 

required to tell the jury that each juror must agree on the act or acts which constitute each

offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.) Such an 

instruction would have precluded the jury from convicting Sanchez under different 

factual theories. But no such protection is necessary when the prosecutor in “argument 

elect[s] what conduct by defendant amount[s] to the crime charged.” (Id. at p. 1455.)
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Here, the prosecution made an election, so no unanimity instruction was required, 

and the instructions were proper. Indeed, the closing arguments of both the prosecution 

and the defense left no room for doubt that the focus of count one was Sanchez’s 

punching and kicking T.E., whereas the focus of count two was his pushing or throwing 

her down the stairs. In closing argument, the prosecutor said of count one “that’s the act. 

The kicking, the punching,” and said of count two “after Count 1, after kicking her, after 

punching her, at some point they got up, and he lifted her up, and he threw her down the 

stairs.” Defense counsel reiterated the distinction in the same terms. “Count 1 we have 

the initial kicking and the punching, and Count 2 is pushing down the stairs.”

In addition, the inclusion of a self-defense element only as to count two, and the 

argument about that element, further made clear which acts related to which counts. The 

prosecution argued the self-defense claim applied only to count two because T.E. testified 

that she showed Sanchez the knife after the punching and kicking incident. Defense 

counsel agreed, arguing that on “the allegation of kicking and punching, we’re not 

claiming self-defense. But the allegation of pushing down the stairs, we are claiming selfdefense.” (See People v. Brugman (2021) 62 Cal.App.5th 608, 629 [“[T]he prosecutor’s 

election could not have been more clear. She twice informed the jury, in simple language, 

that count 5 was based on the incident in which Brugman held a gun to C.’s head and said 

he would ‘smoke’ her. Consistently, the only evidence the prosecutor discussed in 

arguing that the elements of that count were established was the evidence relating to that 

same incident”].) Since the prosecution made an election that was so clearly presented, 
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we conclude the instructions to the jury were full and complete and complied with the 

either/or rule.

Sanchez argues the jury’s request that the court “specify the 2 counts” and indicate 

whether “specific evidence pertain[ed] to one charge vs. the other” shows they were

confused about the election. Assuming the jury was asking the court to clarify the 

election (rather than direct them to evidence relevant to each act, which would not have 

been appropriate) we conclude the trial court did not abuse its discretion in determining 

that no such clarification was necessary. The trial court stated: “So after discussing 

whether we should clarify that one charge was kicking and punching versus the second 

charge related to the stairwell incident, we contemplated basically being that specific. But 

after further discussion and also communication with [trial counsel by phone], the 

Court’s view is that it was pretty clear during closing arguments that Count 1 was

pertaining to the kicking and punching, and Count 2 was pertaining to the stairwell 

incident. [¶] Because it was pretty clear at this point, the Court is suggesting just 

language that says Counts 1 and 2 pertain to two different acts. And then see what other 

questions they come up with.” In short, the trial court—and the parties—concluded the 

election was so clear in specifying the two acts forming the basis of the two counts that 

no clarification was required. However, the trial court answered in a way that specifed

Sanchez could not be convicted on both counts for the same act. We conclude this 

decision by the trial court was well supported and it was not an abuse of discretion to 

decline to offer further clarification of the election.
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For the same reason, we conclude Sanchez’s trial counsel did not perform in an 

objectively unreasonable fashion by agreeing to that response. The instructions as given 

were compliant with the law because the prosecution made such a clearly demarcated 

distinction between the acts. The court was not required to reiterate the election and, 

because the election was so clear, reiterating it was unnecessary. Trial counsel did not

perform deficiently by either suggesting or agreeing to a response that was so reasonable 

under the facts of the case.

Sanchez’s reliance on People v. Loza (2012) 207 Cal.App.4th 332 is misplaced. In 

that case, a husband and wife were tried together for murder. (Id. at pp. 337-340.) The 

trial court instructed the jury with a standard instruction that an aider and abettor was 

“equally guilty” as the perpetrator. The jury sought clarification about whether an aider 

and abettor could have a less culpable state of mind, yet the court simply referred the jury 

to the instructions. (Ibid.) The Court of Appeal held that the wife’s attorney was 

ineffective in failing to object to the “equally guilty” language in the instruction and in 

failing to object to the court’s response to the jury instruction. (Id. at pp. 349-350, 355-

356.) The instruction was misleading because an aider and abettor can be guilty of a 

greater or lesser crime than a perpetrator, and there was evidence from which the jury 

could have concluded the wife and husband had different mental states. (Id. at pp. 350, 

354-355.) So defense counsel was ineffective in failing to seek a modification of the 

instruction and in failing to object to the response to the jury’s inquiry. (Id. at p. 355.)
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The difference from the facts of this case is stark. Here, Sanchez has identified no 

error in the jury instructions, the prosecution’s election of which acts related to the two 

counts was unambiguous and reiterated by defense counsel during argument, and the 

response to the jury’s inquiry did not direct the jury to an erroneous or confusing 

instruction. We see no basis in Loza for concluding the trial court abused its discretion by 

deciding not to expressly include the prosecution’s election in its instructions to the jury 

or that trial counsel performed deficiently by proposing or acquiescing to the response.

Even if trial counsel could be found ineffective for agreeing to a reasonable and 

legally sufficient response to a jury inquiry, Sanchez has not established his trial counsel

had no tactical purpose. Sanchez and the People dispute whether counsel reasonably 

could have agreed to the response in the hopes that it would lead the jury to decide the 

prosecution had overcharged Sanchez and refuse to convict on two counts. We think a 

more obvious strategy was in play—counsel understood the distinction was so clear that 

reiterating it was not important, but thought there was some risk the jury would think it 

could convict Sanchez on both counts based on only one of the two acts. The court stated 

that the parties agreed not to clarify the acts because “it was pretty clear during closing 

arguments” and agreed to limit the answer to informing them that the two counts pertain 

to two different acts. Pressing to clarify that the jury could not convict Sanchez on two 

counts of assault based on only one of the two identified acts is a conceivable strategy, 

which on direct appeal is enough to defeat a claim of ineffective assistance of counsel. 

(People v. Kraft, supra, 23 Cal.4th at p. 1069.)
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We also conclude for similar reasons that Sanchez did not show prejudice. It is not 

reasonably probable he would have obtained a more favorable result but for his trial 

counsel’s failure to request a clarifying statement from the court to support the 

prosecution’s election. His argument turns on speculation that the jury ignored the 

election and found him guilty of one count of assault for punching T.E. and a second 

count of assault for kicking her. We conclude the attorneys in the case were too precise in 

specifying that the punching and kicking were a single act related to count one for it to be 

reasonably probable the jury could so misunderstand or would misapply what it had been 

told. (Brown, supra, 11 Cal.App.5th at p. 341 [“there is an implicit presumption that the 

jury will rely on the prosecution’s election and, indeed, is bound by it”].)

III

DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.