1

Filed 12/20/21 P. v. Sanchez CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

GUILLERMO GARCIA SANCHEZ,

Defendant and Appellant.

 A157538

 (Contra Costa County

 Super. Ct. No. 5-170849-4)

Defendant Guillermo Sanchez stabbed Isela Moreno to death on 

Thanksgiving 2015. At the time, 21-year-old Sanchez and 23-year-old 

Moreno were in a sexual relationship, and she was cooking for him at his 

brother’s house. L.P., who was affiliated with the brothers’ gang, witnessed 

the killing. L.P. was initially also a suspect, and Sanchez’s defense at trial 

was that L.P. was the killer.

A jury convicted Sanchez of first degree murder, and he was sentenced 

to 31 years to life in prison. On appeal, he claims that (1) the evidence was 

insufficient to support a conviction of first degree murder; (2) the trial court 

erred by admitting gang evidence; (3) his trial counsel rendered ineffective 

assistance by failing to seek redactions of portions of police interviews in 

which detectives effectively opined Sanchez was guilty; (4) accomplice 

instructions should have been given based on L.P.’s possible role in the 

murder; (5) the prosecutor erred by appealing to the jury’s sympathy and by 
2

vouching for L.P.; and (6) the cumulative effect of these errors requires 

reversal. Sanchez also claims, and the Attorney General agrees, that the 

matter must be remanded for the trial court to exercise its new discretion 

under Senate Bill No. 1393 (2017–2018 Reg. Sess.) (Senate Bill No. 1393)

whether to strike a five-year enhancement for a prior serious felony under 

Penal Code1 section 667, subdivision (a) (section 667(a)). We agree that 

remand is required for this purpose but otherwise affirm.2

I.

FACTUAL AND PROCEDURAL

BACKGROUND

A. Background

At the time of the murder on November 26, 2015, Sanchez lived with 

his older brother, Victor, and a few roommates in Victor’s house in North 

Richmond (the house).

3 Victor and his girlfriend, with whom he had two 

young children, used the master bedroom upstairs, and Sanchez slept in the 

living room. Sanchez and Victor were members of VFL (Varrio Frontera 

Locos), a North Richmond subset of the Sureño street gang. L.P., a friend of 

the brothers’ who was almost 19 years old, often spent the night at the house 

1 All further statutory references are to the Penal Code unless 

otherwise noted.

2 Sanchez argues in a related petition for a writ of habeas corpus that 

he received ineffective assistance of counsel because his trial counsel failed to 

seek redaction of L.P.’s interviews with police or a limiting instruction about 

them and failed to object to the prosecutor’s alleged vouching for L.P. By 

separate order, we deny Sanchez’s habeas petition. (In re Guillermo Garcia 

Sanchez, A163470.)

3 Because Sanchez and his brother have the same last name, we refer 

to Victor by his first name. No disrespect is intended.
3

and also slept in the living room.

4

 At trial, L.P. denied being a VFL member 

but admitted to associating with the gang.

5

Sanchez had a longtime girlfriend—not Moreno—who was pregnant 

with his child. Although he and his girlfriend had recently broken up, they 

were still in contact and exchanging messages about their relationship. 

According to Victor, Sanchez loved his girlfriend “more than anything in the 

world,” and the couple’s messages before the murder showed Sanchez wanted 

to get back together but she was concerned he was seeing other women. On 

Thanksgiving morning, Sanchez texted the girlfriend, “I really love u.” That 

afternoon, he sent her a message she suspected was for another woman. The 

girlfriend’s last message to him, about an hour before the murder, was, “Man 

be straight up do yu have a girl??? Were yu talking to one in a serious way??? 

I want honesty! And if yu feel sum for her tell me too damnnit!” 

In fact, Sanchez was sleeping with Moreno, who changed her Facebook 

status to “In a Relationship” on October 23. Moreno had a young son with 

another Sureño gang member but was no longer with that man. On 

November 18, Moreno texted Sanchez that she was going to get a pregnancy 

test. Four days later, she told him that she was not pregnant and did not 

have any sexually transmitted infections, referring to several details of their 

sexual interactions. In their exchanges during this time, Sanchez was often 

4 Victor, who testified while in custody for failing to appear as a 

witness, claimed that L.P. was not his friend and never stayed at the house. 

5 L.P. had convictions for domestic violence and being a felon in 

possession of a firearm. It was stipulated that during the incident leading to 

the latter conviction, which occurred about six weeks after Moreno’s murder, 

L.P. “was arrested in a car containing two firearms with at least one member 

of the Sureño street gang.” 
4

unresponsive and seemed primarily interested in whether she could get 

narcotics for him. 

L.P. testified that a few days before Thanksgiving, he woke up in the 

house’s living room and saw Moreno lying on top of Sanchez on a recliner 

chair.6 L.P. originally met Moreno when she commented on one of his 

Instagram posts. He exchanged messages with her on social media, but he 

stopped contacting her after seeing her with Sanchez, and he denied ever 

being romantically interested in her. 

Victor confirmed that Moreno often stayed overnight at the house with 

Sanchez, although he was not sure whether they were in a relationship. 

Victor’s girlfriend testified that she had seen Moreno at the house a few times 

before, including shortly before Thanksgiving, with a group of other young 

people who often hung out there. 

Victor and Moreno sometimes communicated directly with each other, 

and on November 20 she texted him that she did not know “what [was] wrong 

with [Sanchez] . . . but he [was] acting [different] with [her].” Victor later 

told police7 that Moreno told him she was pregnant and thought the baby was 

Sanchez’s. At some point, Victor heard Sanchez tell Moreno to stop calling 

and coming over, and Victor agreed he “had the impression that [Sanchez] 

wasn’t as romantically interested in [Moreno] as she was in him.” 

B. Thanksgiving

On Thanksgiving morning, Sanchez and Victor’s mother came over to 

the house to celebrate with her sons. She testified that Sanchez was not 

6 Moreno’s cell phone records suggested she was at Sanchez’s house late 

the night of November 20 and spent the night there on at least November 23. 

7 The Contra Costa County Sheriff’s Department responded to and 

investigated the murder, but we refer to it and its officers as “police” for 

simplicity.
5

there when she arrived, but Victor, Victor’s girlfriend, and their infant 

daughter were still in bed. Later that morning, Victor and his girlfriend went 

to run errands and left the baby with Sanchez’s mother.

Moreno had texted Sanchez earlier that morning that she wanted to 

make tamales for him. When Victor and his girlfriend returned from their 

errands, Moreno was waiting at the house’s front door, and they let her 

inside. Shortly before 5:00 p.m., Moreno sent Sanchez a text suggesting she 

was at the house and told him, “Get your ass home.” 

Victor’s girlfriend cooked dinner, and she, Moreno, Victor, and 

Sanchez’s mother ate together.8 Several other people were in the backyard. 

Sanchez’s mother told police she did not know Moreno but thought she might 

be Sanchez’s girlfriend because Moreno was being “very friendly” toward her. 

Sanchez’s mother asked about Sanchez because she had not seen him 

recently, and Moreno said, “Oh, yes. I haven’t seen him either, that’s why I 

came to . . . look for him and see if I see him.” 

Sanchez’s mother testified that while she and Moreno were still in the 

kitchen, Sanchez came inside from the backyard. His mother said, “[C]ome 

here and give me a hug,” and Moreno also told him to “give [his] mom a hug,”

which he then did. Sanchez’s mother testified that Sanchez seemed 

“distracted” but not angry, and he appeared to be “looking for something.” 

She and Moreno offered him food, but he said he would eat later and returned 

to the backyard. 

8 Victor testified that he saw Moreno outside the house, but he could 

not recall seeing her inside. He claimed that he could not remember much 

because his brain was “fried up” from drug use and he had been drinking and 

using drugs that Thanksgiving. 
6

After eating, Sanchez’s mother, Victor, and Victor’s girlfriend went 

upstairs to the master bedroom with the baby to watch a movie. Victor told 

police that Moreno stayed downstairs to make tamales. 

C. The Stabbing

L.P., the only witness who saw Sanchez stab Moreno, recounted various

versions of the events to police and at trial. 

1. November 2015 police interview

L.P. told police that he arrived at the house around 4:00 p.m. on 

Thanksgiving. He had spent the previous night at his girlfriend’s house, 

which was a few blocks away, and had gone to his mother’s house in San 

Pablo to change clothes before returning to North Richmond. When L.P. 

entered the house, Sanchez was on the couch in the living room with Moreno, 

whom L.P. claimed he had never met before. L.P. said the two were “quiet.”

Moreno “seemed pretty happy” and was looking at her phone, and Sanchez 

“looked like he ain’t got no sleep.” 

L.P. and Victor, who had been upstairs, went into the backyard to 

smoke a cigarette.9 L.P. claimed that he and Victor then went upstairs to the 

master bedroom to watch “a scary movie.” L.P. got bored after about half an 

hour and left to buy more cigarettes, and when he returned to the house he

gave one to Sanchez. 

Meanwhile, Victor had come back downstairs. Moreno, who had 

“started cooking . . . tamales,” asked Victor if he ate pork, and he responded, 

“No, we’re allergic to pork.” L.P. and Victor then went back upstairs, and 

when L.P. went downstairs again, Sanchez and Moreno “were arguing about 

9 Victor testified that that he saw L.P. outside the front of the house 

that morning and gave him a cigarette but did not see him inside until much 

later that day, when he alerted Victor to the stabbing. 
7

something” in Spanish, a language he did not understand. According to L.P., 

he returned upstairs and told Victor that the couple was arguing. Victor told 

L.P. to “go try and stop them from arguing,” but L.P. did not believe he could 

do anything about it. Instead, L.P. went back downstairs with Victor and

“smoked another cigarette” before leaving around 5:00 p.m. L.P. claimed that 

when he left, Sanchez and Moreno were still arguing. 

L.P. changed his story after police suggested it was inconsistent with 

what Sanchez’s mother had told them. He now stated that Sanchez’s mother 

and Victor’s girlfriend were also in the bedroom when he went upstairs to tell 

Victor that Sanchez and Moreno were arguing. According to L.P., he heard 

what sounded like a physical fight downstairs, and he and the others went 

downstairs. Sanchez was gone, and L.P. did not see Moreno but saw a lot of 

blood in the kitchen. 

L.P. “just got scared,” because he was worried that police were “gonna 

think that [he] had somethin’ to do with it.” He left the house through the 

backyard, and after hopping over the fence he saw “somebody runnin’.” L.P. 

claimed that he did not own a cell phone, and he did not call for help because 

he believed Sanchez’s family would do so. 

After police pressed L.P. to tell the truth, questioning “what was it that 

freaked [him] out that made [him] run up those stairs and knock on that 

door,” he next stated that Sanchez and Moreno had been “fist fighting” in the 

living room. L.P. claimed that after Sanchez threw a punch at Moreno’s face,

he told Sanchez to stop, but Sanchez and Moreno exchanged punches. L.P. 

did not attempt to break up the fight physically because if either of them hit 

him accidentally, it would “get [him] mad” and there would “end up bein’ 

three people fighting.” 
8

Finally, after police told L.P. he could “go home” if he told the truth, he 

said that after Sanchez and Moreno began fighting, he saw Sanchez “grab a 

knife” from the kitchen island. Holding the knife, Sanchez then walked 

toward Moreno, who had followed him. L.P. claimed he did not see Sanchez 

actually stab Moreno, but he thought Sanchez was going to kill her because

“they’re not fightin’ if they’re not mad. And he’s not gonna go grab a knife 

just . . . ‘cause I mean she’s . . . little.”10

2. Trial testimony

At trial, L.P. testified that when he arrived at the house, Sanchez’s 

family had already eaten dinner, and Moreno was getting ready to make

tamales. Sanchez’s family members were upstairs, and Sanchez was not 

there. According to L.P., Sanchez arrived about 30 minutes later, and he 

seemed “a little mad or something.” Contrary to what L.P. told police, he 

testified he could not remember Sanchez and Moreno talking to each other or 

otherwise interacting. L.P. also claimed that he did not spend any time with 

Victor that day. 

L.P. testified that he and Sanchez went into the backyard to smoke a 

cigarette and then returned to the living room. Once inside, L.P. and 

Sanchez sat across from each other on couches in the living room. Moreno 

was sitting on a chair at the kitchen island while she prepared the tamales. 

At some point, L.P. entered the kitchen. While he was standing there, 

Sanchez also came into the kitchen and got a knife from the island. Sanchez 

then returned to the living room and sat down, and L.P. opened a cabinet “to 

get a glass to get something to drink.” 

10 When she died, Moreno was five feet tall and weighed about 95 

pounds. According to his driver’s license, Sanchez was five feet six inches tall 

and weighed about 160 pounds. L.P. was six feet one inch tall and weighed 

about 220 pounds. 
9

L.P. testified that when he turned from facing the cabinet, he saw 

Sanchez stab Moreno, who was still sitting at the island. Moreno then turned 

in her seat and “threw a punch” toward Sanchez’s shoulder. According to 

L.P., Moreno did not make any noises after being stabbed. 

D. L.P. Gets Help Before Fleeing.

L.P. testified that he immediately “ran upstairs” after seeing Moreno 

hit Sanchez and did not see her get stabbed again. L.P. knocked on Victor’s 

door and told Victor that Sanchez was killing Moreno. L.P. indicated he did 

not “think it was important to help [Moreno]” or his “business to stop 

whatever’s happening.” Rather, L.P. went to get Victor “because that’s 

[Sanchez’s] brother. You know if it’s his brother that grabs him, he’s not 

going to try to swing on him.” 

Victor’s girlfriend testified that while the family was watching the 

movie, she heard Moreno “talking loudly.” The girlfriend then heard 

“someone screaming for Victor downstairs” before someone knocked on the 

bedroom door. Similarly, Sanchez’s mother testified that as she was 

watching the movie, she heard “a lot of commotion” downstairs. Then, 

someone knocked loudly and “urgent[ly]” on the bedroom door. 

Victor opened the door for L.P., who looked “scared” and “panicked.” 

There was conflicting evidence about what L.P. said to Victor. Victor’s

girlfriend testified, as L.P. did, that L.P. said, “[H]e’s killing her.” Sanchez’s 

mother told police that L.P. told Victor to come downstairs. At trial, however, 

she claimed not to understand what L.P. said because it was in English. And 

while Victor told police that L.P. said, “[C]ome get your brother, . . . he’s 

fuckin’ killin’ her,” Victor testified that he could not recall L.P. saying this. 

L.P., Victor, and Victor’s girlfriend went downstairs while Sanchez’s 

mother stayed in the bedroom with the baby. L.P. testified that he saw 
10

Moreno lying on the kitchen floor, but he did not see Sanchez. L.P. then ran 

outside to the backyard and “hopped the fence” to a neighboring backyard. 

He testified that as he left, he could hear Victor “screaming [L.P.’s] name.”

Victor testified that by the time he and his girlfriend came downstairs, 

L.P. had run away. The two saw Moreno, “covered in blood,” lying on the 

kitchen floor. Victor testified that Moreno was still breathing, and he went 

back upstairs to tell his mother to call the police “because it looked kind of 

critical.” 

Sanchez’s mother testified that she came out of the bedroom and met 

Victor and his girlfriend, who were coming back up the stairs. They both 

seemed “scared,” and Victor’s girlfriend indicated that Moreno was bleeding. 

Sanchez’s mother told the girlfriend to call for help, which she did. Sanchez’s 

mother then went downstairs to the kitchen, where she saw Moreno lying on 

the floor with blood around her. 

Victor stated that while he was upstairs, he heard Sanchez calling his 

name. He then saw Sanchez, who “looked scared” and “panicked” but did not 

have any blood on him. Sanchez was trying “to leave out the front door,” and 

Victor told his brother that the police had been called. According to Victor, 

Sanchez then ran out the back door. 

L.P. testified that meanwhile, after he went over the backyard fence, he 

saw Sanchez in an alleyway. Sanchez had a cut on his finger and a “[t]rickle” 

of blood from his hand, but L.P. did not see a knife. L.P. testified that he told 

Sanchez “to back up” because he was afraid that Sanchez might try to kill 

him too. L.P. then left and eventually went to his girlfriend’s house. 

E. The Physical Evidence and Subsequent Events

The police were dispatched at 6:44 p.m., and the first officer arrived 

three minutes later. Victor’s girlfriend was standing in front of the house 
11

holding the baby and appeared to be “in shock.” Upon entering the house, the

officer saw “blood drops in the hallway and in the first two steps of the 

stairwell” that led to the home’s second floor. There was also “blood spatter” 

on the hallway’s wall. The blood on the hallway floor formed a “trail [that 

led] towards the back of the house.” Victor and his mother, who were at the 

top of the stairs, also appeared to be “in shock.” The officer did not observe 

any blood on them or on Victor’s girlfriend. 

The officer followed the blood trail to the kitchen, where he observed 

Moreno “on her back with both her arms wide out, her eyes open, in a pool of 

blood.” Near her feet was “a small table . . . with a chair that was upside 

down on the table,” and another chair was lying on its side nearby. The door 

to the backyard was “wide open.” 

The officer could tell that Moreno had been stabbed many times “[f]rom 

her neck . . . all the way down to her . . . bottom breast line,” and blood was 

“all over” her and the floor. Moreno was not breathing, and the officer’s 

attempts to resuscitate her were unsuccessful. She was pronounced dead at 

7:01 p.m., although the officer believed she was dead by the time he arrived. 

Moreno, who was not pregnant when she died, had 41 stab wounds to 

her upper body. The murder weapon was never recovered, but the 

pathologist who performed her autopsy testified that it was a knife whose

blade was likely five to six inches long and half an inch to an inch wide. 

Moreno had two deep wounds on both sides of her neck, all four of 

which would have been fatal because they cut through her jugular vein and 

carotid artery. There were also about a dozen wounds to her chest, breasts, 

and upper abdomen, as well as a deep wound to her left armpit. The knife 

fractured her sternum and six of her ribs, and her lungs and heart were 

punctured, which would also have been fatal. The pathologist testified that 
12

her injuries would have caused “profuse bleeding,” including blood “spurting” 

from the carotid wound. He opined that the knife would likely have become 

“bloody” and “slippery in the hands of the assailant,” who might have cut 

himself as a result. 

Moreno also had numerous defensive wounds, primarily on her left 

forearm and the palm and back of her left hand. The pathologist testified 

that it appeared Moreno “tried to protect herself, either by using her arms to 

shield her body or by actually trying to grab for the knife. There’s evidence of 

both types of defensive wounds.” She also had three shallow wounds on her 

back, near her right shoulder. The pathologist explained that although most 

of the wounds were on the front of Moreno’s body, suggesting that she and 

her assailant “were face to face for the bulk of the interaction,” the wounds on 

her back suggested that at some point she “was either trying to leave or 

trying to escape.” None of her wounds would have been immediately fatal, 

permitting her to try to protect herself, but “as she lost blood, she would have 

lost strength, gotten less aware, became drowsy, and then collapsed and then 

died” from blood loss. 

Several bloodstains were on the walkway from the house’s front door to 

the sidewalk and on the sidewalk near the driveway. A criminalist testified 

that the bloodstains “appear[ed]to [come] from the same source,” as they 

formed “a trail from the front door down the walkway [and] . . . around . . . 

the driveway.” DNA testing on four representative samples from the trail of

blood drops found in and around the house confirmed it was Sanchez’s blood. 

It was stipulated that in a search of another Sureño gang member’s 

home in Pittsburg, police discovered a sweatshirt, jeans, a glove, and a cell 

phone, all of which were “bloody.” It was also stipulated that Sanchez was 

wearing the clothes when he arrived at the Pittsburg house on the night of 
13

the murder, at which point he asked for a change of clothes and then left, 

leaving the bloody items behind. The blood was Sanchez’s, but Moreno’s 

DNA could not be detected on the items. Sanchez’s DNA was not detected on 

clothes Moreno was wearing when she died. 

Two days after the murder, L.P. turned himself in after learning he 

was wanted for Moreno’s murder. He testified that when he talked to police, 

he was concerned he would be labeled a snitch, suggesting this was why his 

story kept changing. During the interview, he told police he was wearing the 

same jeans and shoes he had been wearing on Thanksgiving. The jeans and 

shoes were collected, and neither had blood on them. 

Soon after the murder, Sanchez called his mother and told her he was 

in Mexico with his father. Sanchez was eventually apprehended in Mexico,

and he was brought back to the United States in January 2017. 

F. The Verdict and Sentencing

Sanchez was charged with one count of murder, with the accompanying 

allegation that he personally used a knife during the offense.11 It was also 

alleged that he had a 2014 conviction for street terrorism, a strike, and a 

serious felony.

12

The jury convicted Sanchez of first degree murder and found true the 

knife allegation. After he waived a jury trial on the prior conviction 

allegations, the trial court found them true but struck the strike in the 

interest of justice, mostly based on Sanchez’s youth. The court sentenced him 

11 The murder charge was under section 187, subdivision (a), and the 

knife allegation was under section 12022, subdivision (b)(1). 

12 The strike allegation was made under sections 667, subdivisions (d) 

and (e), and 1170.12, subdivisions (b) and (c), and the serious felony 

allegation was made under section 667(a)(1). The underlying conviction was 

under section 186.22, subdivision (a). 
14

to 31 years to life in prison, composed of a term of 25 years to life for the 

murder and consecutive terms of one year for the knife use and five years for 

the prior serious felony.

II.

DISCUSSION

A. Substantial Evidence Supports the Murder Conviction.

Sanchez claims that there was insufficient evidence of premeditation 

and deliberation, requiring his conviction to be reduced to second degree 

murder. We are not persuaded.

1. General legal standards

When evaluating a claim that a conviction lacks sufficient evidence, 

“ ‘we review the whole record to determine whether . . . [there is] substantial 

evidence to support the verdict . . . such that a reasonable trier of fact could 

find the defendant guilty beyond a reasonable doubt. [Citation.] In 

applying this test, we review the evidence in the light most favorable to the 

prosecution and presume in support of the judgment the existence of every 

fact the jury could reasonably have deduced from the evidence.’ ” (People v. 

Manibusan (2013) 58 Cal.4th 40, 87.) “ ‘[I]f the circumstances reasonably 

justify the jury’s findings, the judgment may not be reversed simply because 

the circumstances might also reasonably be reconciled with a contrary 

finding.’ ” (People v. Avila (2009) 46 Cal.4th 680, 703.) Rather, reversal is 

warranted only if “ ‘it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction].” ’ ” (People v. 

Cravens (2012) 53 Cal.4th 500, 508.)

“Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) “All murder that is perpetrated by . . . 

willful, deliberate and premeditated killing . . . is murder of the first degree.” 

(§ 189, subd. (a).) “In the context of first degree murder, ‘ “premeditated” 
15

means “considered beforehand,” and “deliberate” means “formed or arrived at 

or determined upon as a result of careful thought and weighing of 

considerations for and against the proposed course of action.” ’ ” (People v. 

Lee (2011) 51 Cal.4th 620, 636.) The required mind state “is uniquely 

subjective and personal. It requires more than a showing of intent to kill; the 

killer must act deliberately, carefully weighing the considerations for and 

against a choice to kill before . . . complet[ing]the acts that caused the 

death.” (People v. Chiu (2014) 59 Cal.4th 155, 166.) “[T]he reflection 

necessary to establish premeditation and deliberation is not measured by 

duration of time: ‘Thoughts may follow each other with great rapidity and 

cold, calculated judgment may be arrived at quickly, but the express 

requirement for a concurrence of deliberation and premeditation excludes 

from murder of the first degree those homicides . . . which are the result of 

mere unconsidered or rash impulse hastily executed.’ ” (People v. Wright

(1985) 39 Cal.3d 576, 593.)

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the Supreme 

Court “provided one framework for reviewing the sufficiency of the evidence 

supporting findings of premeditation and deliberation.” (People v. Solomon

(2010) 49 Cal.4th 792, 812.) Anderson observed that the evidence typically 

found sufficient to support such findings “ ‘falls into three basic categories: 

(1) facts about how and what [the] defendant did prior to the actual killing 

which show that the defendant was engaged in activity directed toward, and 

explicable as intended to result in, the killing—what may be characterized as 

“planning” activity; (2) facts about the defendant’s prior relationship and/or 

conduct with the victim from which the jury could reasonably infer a “motive” 

to kill the victim, which inference of motive, together with facts of type (1) or 

(3), would in turn support an inference that the killing was the result of “a 
16

pre-existing reflection” and “careful thought and weighing of considerations” 

rather than “mere unconsidered or rash impulse hastily executed” [citation]; 

[and] (3) facts about the nature of the killing from which the jury could infer 

that the manner of killing was so particular and exacting that the defendant 

must have intentionally killed according to a “preconceived design” to take 

[the] victim’s life in a particular way for a “reason” which the jury can 

reasonably infer from facts of type (1) or (2).’ ” (People v. Thomas (1992) 

2 Cal.4th 489, 516–517.)

Anderson explained that a verdict of premeditated murder is generally 

upheld “ ‘when there is evidence of all three types and otherwise requires at 

least extremely strong evidence of [planning] or evidence of [motive] in 

conjunction with [evidence of] either [planning] or [manner of killing].’ ” 

(People v. Halvorsen (2007) 42 Cal.4th 379, 420.) The Supreme Court has 

emphasized that “ ‘Anderson did not purport to establish an exhaustive list 

that would exclude all other types and combinations of evidence that could 

support a finding of premeditation and deliberation.’ ” (People v. Solomon, 

supra, 49 Cal.4th at p. 812.) Rather, Anderson’s “guidelines are descriptive

. . . , and . . . reviewing courts need not accord them any particular weight.” 

(Halvorsen, at p. 420.) Nonetheless, as do the parties, we use the Anderson

factors to frame our discussion.

2. Analysis

 In claiming there was insufficient evidence of premeditation and 

deliberation, Sanchez first focuses on planning activity. He asserts that 

“there was no evidence that [he] arrived at the . . . house on Thanksgiving . . .

with any plan to harm [Moreno],” since not only did he did not bring a 

weapon with him, several other people were there so he would have known 

that a killing would be quickly detected.
17

We agree with the Attorney General, however, that L.P.’s testimony 

about Sanchez’s activities in the living room and kitchen leading up to the 

stabbing constitutes substantial evidence that Sanchez premeditated the 

murder. (See People v. Avila, supra, 46 Cal.4th at p. 703 [generally, “ ‘the 

testimony of a single witness is sufficient for the proof of any fact’ ”].) L.P. 

testified that Sanchez came into the kitchen, grabbed a knife, sat back down 

in the living room, and then returned to the kitchen and stabbed Moreno. 

“That [Sanchez] armed himself prior to the attack ‘supports the inference 

that he planned a violent encounter.’ ” (People v. Elliot (2005) 37 Cal.4th 453, 

471.) The murder may not have been well-planned, as Sanchez committed it 

in front of L.P. while other witnesses were nearby, but the lack of efforts to 

avoid detection did not prevent the jury from inferring that Sanchez formed a 

plan to kill Moreno before he attacked her. 

In addition, although according to L.P.’s testimony only a short amount 

of time passed between when Sanchez retrieved the knife and when he

stabbed Moreno, “under California law premeditation and deliberation can 

occur in a brief period of time,” and “[t]he lack of evidence of extensive 

planning does not negate a finding of premeditation.” (People v. Brady (2010) 

50 Cal.4th 547, 563–564 [sufficient evidence of first degree murder where 

defendant killed police officer within a few minutes of being pulled over].) 

Sanchez argues that it is speculative to infer that he “actually premeditated 

and deliberated” from the “mere fact that [he] had time to consider his 

actions,” but more than the passage of time supported that inference. As 

Sanchez acknowledges, L.P. testified that Sanchez and Moreno did not 

interact before the stabbing, which was evidence that the murder was

unprovoked. The jury could have thus reasonably inferred that the murder 
18

“was the result of a deliberate plan rather than a ‘rash explosion of 

violence.’ ” (People v. Miranda (1987) 44 Cal.3d 57, 87.) 

Sanchez argues that evidence of motive was also lacking. According to 

him, “[t]here is nothing in the record concerning [his] prior relationship with 

[Moreno] or his conduct with her that would suggest a motive for the 

stabbing, other than speculation, conjecture, surmise, and suspicion.” In fact, 

there was plenty of evidence that Moreno was pursuing a relationship with 

Sanchez even though he was not interested in her and wanted to get back 

together with his girlfriend. Moreno showed up at his home on Thanksgiving 

and involved herself in his family’s get-together even though he had told her 

not to come over anymore, and he was simultaneously fielding accusations 

from his girlfriend about another woman. It is not speculative to conclude 

this situation gave Sanchez a motive to kill Moreno, even if that motive was 

irrational. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1238.) 

Finally, Sanchez argues that there was insufficient evidence “from 

which the jury could have inferred that the manner of killing . . . was so 

particular and exacting that [he] must have intentionally killed according to 

a preconceived design to kill.” He claims that “[t]he wounds appeared to be 

wild and unaimed, consistent with a frenzied, impulsive attack,” which 

“reflects a state of mind of someone going berserk and not one in which 

premeditation should be inferred.” But as the Attorney General points out,

Sanchez “concentrated on the critical area from [Moreno’s] neck to her upper 

chest,” and case law recognizes that numerous stab wounds placed where 

they were likely to kill support a finding of premeditation. (E.g., People v. 

Pride (1992) 3 Cal.4th 195, 247–248 [dozens of stab wounds concentrated on 

victim’s chest and back]; People v. Nazeri (2010) 187 Cal.App.4th 1101, 1109, 

1118 [victims had several stab wounds around head and neck]; People v. 
19

Gonzalez (2005) 126 Cal.App.4th 1539, 1544, 1552 [victim had “multiple deep 

puncture wounds, mostly to his chest and back”].) Although the manner of 

killing here could also be “associated with someone losing his mind and going 

berserk” (Nazeri, at p. 1118), it did not compel that conclusion. 

In short, the evidence that Sanchez prepared to kill Moreno before he 

started stabbing her, had a motive for wanting her dead, and focused his 

attack on vulnerable areas of her body was sufficient for the jury to conclude 

that he acted with premeditation and deliberation. Substantial evidence 

supports the murder conviction. 

B. The Gang Evidence Was Properly Admitted.

Sanchez claims the trial court erred by admitting gang evidence 

because it was unduly prejudicial under Evidence Code section 352

(section 352). We conclude there was no error.

1. Additional facts

a. The trial court’s rulings

Before trial, Sanchez moved to exclude evidence that he was a Sureño. 

Although he was not charged with any gang-related activity, the prosecution 

contended that gang evidence was relevant to explain the actions of Victor

and L.P., primarily their motive to lie. Sanchez argued that the evidence 

either feared gang retaliation was “minimal at best,” since Moreno was also a 

Sureño associate and “[i]t is highly unlikely that the Sureños would do 

anything to avenge or assist someone who killed her, especially while she was 

making tamales for the killer on Thanksgiving day.” 

The trial court determined that some gang evidence was relevant to 

L.P.’s state of mind, as his fear of “being on paperwork” or considered “a 

snitch” bore on “his credibility and his willingness to cooperate and to explain 
20

his minimizing during his testimony.”13 The court explained, “[I]n my world, 

a normal person [who] witnesses a murder does not jump the fence and run 

away, does not have to be subjected to a long interview at the police 

department, does not refuse to come to court on a subpoena, does not get 

arrested, does not go to jail, does not continue to fight cooperating. [¶] A jury 

will be faced with thinking [L.P.] is a liar if there’s no other explanation for 

his behavior. And that’s why I’m finding it highly probative.” 

As for Victor,the trial court found the gang evidence was relevant even 

if he did not fear retaliation because it demonstrated “[h]is loyalty to his 

brother and his loyalty to the gang.” Indeed, soon before trial, Victor was 

recorded throwing a gang sign toward Sanchez in the courtroom, and the 

court ruled that the prosecution could present evidence about that 

occurrence. 

The trial court also ruled that a gang expert could testify that the 

Sureños are a street gang and that the sign Victor threw was “a Sureño gang 

sign,” as well as to what “snitching or being on paper[work]” means and 

“what it means to be loyal to the gang.” But it excluded evidence that the

house was a Sureño hangout, as well as evidence of “any monikers” or 

“predicate acts.” 

In ruling, the trial court indicated it was prepared to give a limiting 

instruction about the gang evidence. The jury was subsequently instructed 

that “[g]ang evidence was admitted only for the purpose of assessing 

credibil[it]y of the witnesses” and that this evidence could not be considered

for any other purpose. 

13 As discussed below, “being on paperwork” refers to one’s participation 

in a criminal investigation being documented. 
21

The topic of gang evidence arose again during L.P.’s testimony, when 

the attorney representing L.P. indicated that “there might be questions asked 

that would elicit a Fifth Amendment response.” After L.P. was examined 

outside the jury’s presence, the trial court ruled that he would be compelled 

to answer questions about whether he knew about or was part of the VFL or 

Sureño gang. The court also confirmed that he could be asked whether 

Sanchez and Victor were VFL or Sureño members and that he could be 

questioned about snitching and being on paperwork. 

At this point, the trial court also elaborated on what gang-related 

questions would not be permitted. The court repeated that L.P. could not be 

asked about “[a]ny prior gang activities or specific instances of participation 

[in] the Sureños or the VFL”—except for the fact he was with a Sureño when 

he was arrested for an unrelated crime in January 2016—or about whether 

the house was “a gang home.” The court ruled that L.P. could not be asked 

what VFL stands for, “what it means to be a 13 or what 13 means,” or how he

knew Sanchez and Victor were in a gang. Finally, the court ruled that L.P. 

could not be asked whether he believed the “Sureños would take revenge . . .

on somebody [who] killed a high-ranking member’s baby’s mama.” 

b. The gang evidence

A detective testified that the Sureños are a criminal street gang with 

various subsets, including the VFL in North Richmond.14 He explained that 

gangs “have their own rules they follow. And one of the rules is to—they 

pledge their allegiance to each other and their gang. And another rule, they 

don’t tell on each other. They don’t testify. They don’t talk to cops.” 

14 The detective was not qualified as a gang expert, but Sanchez does 

not claim that any of his testimony was objectionable on this basis.
22

L.P. denied that he was part of “the VFL Sureño street gang” at the 

time of Moreno’s killing and testified he was “not sure” whether Sanchez or 

Victor was. L.P. admitted that all three of them hung out with members of 

that gang. In addition, a district attorney investigator testified that when 

arrested for failing to appear at the preliminary hearing in May 2017, L.P. 

said he and Sanchez were VFL members. Finally, L.P.’s preliminary-hearing 

testimony that Sanchez was a Sureño was admitted into evidence. 

Victor testified that he was a Sureño and VFL member. The detective

testified that court surveillance footage showed Victor throwing gang signs 

toward Sanchez while they were in the courtroom. Specifically, the detective

saw Victor “throw up the [n]umber 13 with both hands,” which “signifies the 

13th letter of the alphabet, which is the letter M. And the letter M 

represents [the Sureños’] allegiance to the Mexican Mafia.” 

There was also evidence about snitching and the term “paperwork.” 

L.P. indicated, and the detective confirmed, that “being on paperwork” means 

that “your statement is in a police report,” and being a snitch “means that 

you [are] on paperwork and talked to the cops.” Victor and the detective 

testified that Sureños are not supposed to snitch or testify, and L.P. testified 

that being a snitch means “[y]ou could end up dead or just sent to the 

hospital.” L.P. and the detective also agreed that a gang member who 

snitches is supposed to drop out of the gang. 

The record contains several statements by L.P. about “paperwork” and 

his concern about talking to police. In his November 2015 police interview, 

L.P. asked whether “[his] name [was] gonna be in paperwork” because he was 

“scared about [that] too.” At trial, he confirmed he was “concerned about 

being in paperwork” at that time, because he did not “want to be labeled a 

snitch.” 
23

L.P. also testified that a few weeks after that interview, he spoke to

Sanchez on the phone. Sanchez asked whether he was on “paperwork,” and 

L.P. said he was not. In a January 2016 police interview, which occurred

after L.P. was arrested for the unrelated crime, he said that Victor told him

that if Sanchez “ever got caught, . . . the paperwork gonna come out.” And

according to the district attorney investigator who spoke to L.P. before the 

preliminary hearing, L.P. said he was afraid to testify against Sanchez 

because if he snitched, the gang would retaliate against him. At trial, L.P. 

denied being directly threatened by Sanchez or anyone else, however.

2. General legal standards

Evidence is relevant if it has “any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the 

action.” (Evid. Code, § 210.) The fact finder “may consider in determining 

the credibility of a witness any matter that has any tendency in reason to 

prove or disprove the truthfulness of [the witness’s] testimony,” including 

“[t]he existence or nonexistence of a bias, interest, or other motive.” (Id., 

§ 780, subd. (f).) 

Even if evidence is otherwise relevant and admissible, it may be 

excluded under section 352 “if its probative value is substantially outweighed 

by the probability that its admission will (a) necessitate undue consumption 

of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” (§ 352; People v. Scott (2011) 52 Cal.4th 

452, 490.) “ ‘ “Prejudice,” as used in . . . section 352, is not synonymous with 

“damaging.” [Citation.] Rather, it refers to evidence that uniquely tends to 

evoke an emotional bias against the defendant as an individual, and has little 

to do with the legal issues raised in the trial.’ ” (People v. Miles (2020) 

9 Cal.5th 513, 587.)
24

“Because gang evidence creates a risk that the jury will infer that the 

defendant has a criminal disposition and is therefore guilty of the charged 

offense, ‘trial courts should carefully scrutinize such evidence before 

admitting it.’ ” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1167; see 

People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) Nevertheless, gang 

evidence “is not insulated from the general rule that all relevant evidence is 

admissible if it is relevant to a material issue in the case other than 

character, is not more prejudicial than probative, and is not cumulative.” 

(Samaniego, at p. 1167.) Gang evidence may be “relevant on the issue of a 

witness’s credibility”in particular. (Id. at p. 1168.) For example, 

“ ‘[e]vidence that a witness is afraid to testify or fears retaliation for 

testifying,’ ” including “ ‘[a]n explanation of the basis for the witness’s fear,’ ”

is generally admissible. (People v. Sandoval (2015) 62 Cal.4th 394, 402, 429–

430 (Sandoval) [discussing witness’s fear of testifying against gang member]; 

People v. Pettie (2017) 16 Cal.App.5th 23, 44 [same].)

We review the trial court’s evidentiary rulings for an abuse of 

discretion. (People v. Miles, supra, 9 Cal.5th at p. 587.) Under this standard,

reversal is not warranted “ ‘ “ ‘ “except on a showing that the [trial] court 

exercised its discretion in an arbitrary, capricious[,] or patently absurd 

manner that resulted in a manifest miscarriage of justice.” ’ ” ’ ” (Id. at 

pp. 587–588, italics omitted.)

3. Analysis

As to L.P., Sanchez claims that although “[e]vidence that a witness is 

fearful of retaliation is relevant to that witness’s credibility[,] . . . it is the 

existence of the threat or fear, and not its source, that is relevant to [that 

issue].” Sanchez argues that the gang evidence was thus cumulative and “of 

minimal, if any, probative value” because there were several explanations 
25

other than fear of gang retaliation for why L.P. told different stories. For 

example, according to Sanchez, L.P. had a motive to lie to avoid prosecution 

for the murder and, later, to mitigate the consequences of the charge for 

which he was arrested in January 2016. Sanchez also claims that L.P. “was 

worried about being labeled a snitch . . . because of the ethos of the 

community to not cooperate with the police,” not because of “gang retaliation 

or intimidation,” since neither Sanchez nor anyone acting for him ever 

threatened L.P. 

Contrary to Sanchez’s position, there was plenty of evidence that L.P.

was reluctant to tell the truth because he was worried about gang retaliation, 

including L.P.’s statements to that effect. Based on this record, “paperwork” 

is a concept used by gangs in particular, and the challenged evidence was 

relevant to demonstrate what the term meant and why it was significant that

Sanchez and Victor mentioned it to L.P., as well as that L.P. himself was 

concerned about it. Sanchez’s claim that if L.P. had feared retaliation, he

“would have recanted” and not “inculpated [Sanchez] more and more as time 

went on” is speculative.

Sanchez also argues that the source of a witness’s fear is not relevant to 

credibility. Sandoval, the case he cites for that proposition, made the point in 

the context of explaining why threats against a witness were relevant even if 

they came from people other than the defendant. (Sandoval, supra,

62 Cal.4th at pp. 428–430.) In other words, Sandoval was explaining why 

threats were relevant despite their source, not suggesting that the source of 

threats is never relevant. To the contrary, as Sandoval also makes clear, 

“ ‘[a]n explanation of the basis for the witness’s fear [of testifying] is . . . 

relevant to [the witness’s] credibility and is well within the discretion of the 

trial court.’ ” (Id. at pp. 429–430.) Moreover, even if L.P. had not been
26

worried about retaliation, the evidence that he and Sanchez were in the same 

gang was also relevant to furnish a reason that L.P. initially refused to admit 

he had seen Sanchez kill Moreno. Thus, the gang evidence was undoubtedly 

relevant to the issue of L.P.’s credibility. 

Nor was this evidence cumulative just because L.P. may have had other 

motives for not being truthful. The possibility of gang retaliation—which 

might include death—furnished a powerful reason for L.P. to lie that went 

beyond any desire not to be seen in “the community” as a snitch or any 

general reluctance to talk to police. Moreover,the evidence that Sanchez and 

Victor at least indirectly pressured L.P. not to talk was concrete evidence 

that L.P. legitimately feared retaliation. That evidence lacked context 

without testimony explaining “paperwork” and its significance to gangs. 

As to Victor, Sanchez claims that “there was no basis to allow the 

introduction of gang evidence” because their familial relationship was 

sufficient to demonstrate Victor’s “bias or motivation or loyalty” toward 

Sanchez. Thus, Sanchez claims, the fact that the two belonged to the same 

gang was cumulative and “added little to further the prosecutor’s objective of 

showing that Victor was biased and not a credible witness.” We might agree 

if L.P. was not part of this case, and the primary point of the gang evidence 

was to establish that Victor had a motive to lie. (See People v. Maestas (1993) 

20 Cal.App.4th 1482, 1495 [that defendants were in same gang was 

cumulative of other evidence establishing their close relationship].) But 

given the evidence that Victor communicated with L.P. about “paperwork” 

and flashed gang signs at Sanchez in the courtroom, the gang evidence 

showed that Victor’s bias went beyond a mere willingness to lie to protect 

Sanchez. Thus, it was relevant and not cumulative.
27

We also conclude that the trial court did not abuse its discretion by 

concluding the gang evidence’s probative value was not substantially 

outweighed by the potential for undue prejudice. We recognize that where, as 

here, there are no gang charges, “evidence of gang membership . . . should not 

be admitted if its probative value is minimal.” (People v. Hernandez, supra, 

33 Cal.4th at p. 1049.) But as discussed above, the gang evidence was very 

relevant as it bore on credibility, particularly that of L.P., the only witness to 

the murder. As Sanchez recognizes, L.P.’s testimony was key to the case, and 

the gang evidence shed light on why L.P.’s story shifted. 

Moreover, the gang evidence was reasonably limited, focusing on the 

fact of membership and the impetus not to cooperate with law enforcement. 

Thus, we cannot agree with Sanchez that the evidence would have led the 

jury to believe that he “was a bad person who had been involved in violent 

actions in the past, had not been punished for his past misdeeds, and needed 

to be punished now.” To the contrary, there was no evidence of any of 

Sanchez’s past misdeeds except the murder itself, and the gang evidence “did 

not emphasize the general violent nature of gang activity or suggest that [his] 

gang membership predisposed him to violent crimes, but instead focused 

narrowly on the prosecution’s theory” for why witnesses were untruthful. 

(People v. McKinnon (2011) 52 Cal.4th 610, 656.) Accordingly, the trial court 

did not err by admitting the gang evidence.

C. Sanchez’s Trial Counsel Did Not Render Ineffective Assistance by 

Failing to Seek Redactions of Interviews or a Limiting Instruction 

Addressing Police Opinions About Veracity and Guilt.

Sanchez contends that his trial counsel rendered ineffective assistance 

“[b]y failing to redact harmful portions of the police interviews” of Victor and 

L.P. that were played for the jury. Sanchez claims that investigators made 

statements indicating that L.P. was credible and they thought Sanchez killed 
28

Moreno, which amounted to impermissible opinion testimony. Sanchez also 

argues that his counsel was ineffective by failing, “in the alternative, [to] 

request and obtain a limiting instruction” about the statements. He fails to 

demonstrate either deficient performance or resulting prejudice, and we 

therefore reject the claim.

1. Additional facts

Most of the statements Sanchez claims his trial counsel should have 

sought to have redacted were made by police during the interviews of L.P. in 

November 2015 and January 2016. In the first interview, investigators told 

L.P. they “already [knew] the answer to” many questions they would ask and 

repeatedly pressed him to be honest. A detective told L.P., “I wanna make it 

very clear, . . . I’m not saying . . . [¶] . . . [¶] . . . we’re looking at you as the 

person who did this. But you have some knowledge, a little bit more 

knowledge, of what went down, downstairs.” Later, after telling L.P. he was 

“tellin’ the truth” but “still skipping over pertinent facts about what 

happened,” another detective stated, “Do I think you held [Moreno] down and 

stabbed her? . . . No[,] okay? But you saw something. You were in that 

kitchen.” This detective also repeatedly suggested that L.P. was in trouble

because “somebody else” put him there by killing Moreno in front of him. 

Sanchez claims that portions of L.P.’s second police interview should 

have also been redacted. One of the detectives opined that L.P. “[was] 

probably about 95% honest with [his] last statement,” i.e., his previous 

interview. The same detective also told L.P., “[C]ontinue to be honest. 

‘Cause, if you remember, . . . when [we] . . . had, like, a three[-]hour

conversation last time, your story changed three times before [the] majority 

of . . . [¶] . . . [¶] the truth came out. And I understand . . . [¶] . . . [¶] it’s hard 

to talk about seeing somebody die, but if you didn’t have shit to do with it, it’s 
29

easier to give up the guy that did than you goin’ down for a murder beef that 

you had nothin’ to do with, right?” The detective continued, referring to 

Sanchez, “[H]e’s not the sharpest tool in the shed when it comes to committin’ 

crimes. I mean, think about it, . . . he brutally . . . murdered a chick right in 

front of you for a stupid fuckin’ reason. [¶] . . . [¶] . . . [R]egardless of how you 

feel about the homies and . . . the life that you’re livin’ right now, this is 

gonna go to court, regardless; and you’re gonna have to testify about what 

happened in that kitchen[,] regardless. That’s to keep you from being a 

suspect in a murder. Do you get that? He did this shit in front of you.” The 

detective concluded by telling L.P., “I believe you didn’t have anything to do 

with it. I believe you were there when it happened. I believe there was more 

to it that you didn’t tell me, but you’re gonna have to testify. . . . You’re a 

witness in a murder.” 

Sanchez claims that statements a detective made during the interview 

of Victor should also have been redacted. First, before reading Victor his 

rights, the detective stated, “Now, I know that you’re not the one that stabbed 

this chick; okay?” Second, after pressing Victor to identify any people who 

were in the backyard, the detective explained that if he failed to do so “all we 

have to look at is [Sanchez]. And your mama already said [Sanchez] was 

there.” Third, insinuating that Sanchez might himself face gang retaliation 

for the murder, the detective told Victor, “Look, this is the deal: You know 

people are gonna be out there looking for your brother and it’s not us.” 

Finally, Sanchez claims that at minimum, his trial counsel should have 

requested a limiting instruction as to the challenged statements, but he does 

not identify what such an instruction should have said. In his reply brief, he 

points out that the jury was instructed under CALCRIM No. 303 that 

“[h]earsay statements made at the scene indicating that [he] was a suspect 
30

[were] admitted only for the purpose of explaining law enforcement’s 

subsequent conduct.” Thus, we will assume the instruction he claims should 

have been sought would have limited consideration of the statements at issue

for a similar purpose.

2. Analysis

Criminal defendants have the right to the effective assistance of 

counsel under the Sixth Amendment of the United States Constitution and 

article I, section 15 of the California Constitution. (Strickland v. Washington

(1984) 466 U.S. 668, 687; In re Long (2020) 10 Cal.5th 764, 773.) To prevail 

on a claim of ineffective assistance of counsel, a defendant must show “that 

counsel’s performance was deficient,” such that “counsel was not functioning 

as the ‘counsel’ [constitutionally] guaranteed,” and “that the deficient 

performance prejudiced the defense.” (Strickland, at p. 687; People v. 

Centeno (2014) 60 Cal.4th 659, 674.) Thus, a defendant must demonstrate 

both that (1) “counsel’s performance . . . fell below an objective standard of 

reasonableness under prevailing professional norms” and (2) there was “a 

reasonable probability that, but for counsel’s deficient performance, the 

outcome of the proceeding would have been different.” (People v. Mai (2013) 

57 Cal.4th 986, 1009 (Mai).) 

“When examining an ineffective assistance claim, a reviewing court 

defers to counsel’s reasonable tactical decisions, and there is a presumption 

counsel acted within the wide range of reasonable professional assistance. It 

is particularly difficult to prevail on an appellate claim of ineffective 

assistance. 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 
31

satisfactory explanation. All other claims of ineffective assistance are more 

appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 

57 Cal.4th at p. 1009, italics omitted.)

As the parties agree, “generally a lay witness may not express an 

opinion about the veracity of another person’s statement because the 

statement’s veracity is for the jury to decide.” (People v. Houston (2012) 

54 Cal.4th 1186, 1221; see Evid. Code, § 800.) Likewise, “ ‘ “[o]pinions on 

guilt or innocence are inadmissible because they are of no assistance to the 

trier of fact.” ’ ” (People v. Woodruff (2018) 5 Cal.5th 697, 760 (Woodruff).) 

But police opinions about a witness’s truthfulness may be admissible for 

other limited reasons, such as to explain an investigation’s course. (See 

People v. Dryden (2021) 60 Cal.App.5th 1007, 1026–1027.)

Even if we assume that Sanchez’s trial counsel could have successfully 

sought to exclude the challenged statements, she may have had a rational

reason for failing to do so. The Attorney General suggests that counsel could 

have chosen not to object because “[p]art and parcel of her defense that [L.P.] 

killed [Moreno] was that the police targeted [Sanchez] because they had 

already made up their minds he was guilty. Demonstrating that the police 

pressured [L.P.] and only believed him when he said what they wanted to 

hear was consistent with, and buttressed, that defense.” We agree this would 

have been a valid tactical reason for not objecting to the challenged 

statements. (See Woodruff, supra, 5 Cal.5th at p. 762 [attempting to show

investigation was inadequate because police believed defendant guilty is “a 

reasonable defense strategy”].) Not only did the statements confirm that L.P.

was never seriously investigated, they supported the idea that he was lying,

because in changing his story he was telling the detectives only what they 

wanted to hear. Sanchez responds that counsel could have effectively argued 
32

that L.P. killed Moreno without the challenged statements, but mere 

argument that police focused on Sanchez to the exclusion of L.P. would not 

have carried the same weight as the detectives’ own words on the subject. In 

sum, since the challenged statements arguably also supported Sanchez’s 

defense, we cannot say that counsel’s failure to object to them or ask for a 

limiting instruction fell below professional standards.

Finally, even if Sanchez’s trial counsel had rendered ineffective 

assistance in this respect, the deficiency was harmless. As the Attorney 

General asserts, “the thrust of the [challenged statements] is that the police 

thought [Sanchez] was guilty of killing [Moreno]. . . . But that was hardly 

news to the jury; after all, the police arrested [him] and he was on trial for 

[her] murder.” Thus, even if the police opinions were inadmissible, they did 

not convey any material information that the jury “would not have already 

inferred” from the fact that Sanchez, and not L.P., was being tried for 

Moreno’s murder. (People v. Riggs (2008) 44 Cal.4th 248, 300; Woodruff, 

supra, 5 Cal.5th at p. 762.) Moreover, L.P.’s interviews, the primary focus of 

Sanchez’s claim, were played after L.P. and several other witnesses had 

already testified. Thus, the jury was not preconditioned to believe that L.P. 

was truthful before being able to judge his credibility for itself. And finally, 

the jury was instructed that it alone was responsible for deciding what had 

happened and whether witnesses were credible, and “we see nothing in the 

record that would lead us to conclude that the jury was likely to disregard 

[those] instructions.” (Riggs, at p. 300.) In short, there is no reasonable 

probability that counsel’s failure to seek redactions or a limiting instruction

affected the verdict.

In resisting this conclusion, Sanchez claims that “the only real question 

for the jury to decide was whether [L.P.’s] testimony, that [Sanchez] stabbed 
33

[Moreno], was credible.” Sanchez argues that since L.P. was “a less than 

perfect witness” and “[h]is story . . . lacked substantial corroboration,” the 

challenged statements may well have “skewed the jury’s verdict to 

conviction.” 

Although L.P.’s testimony was undoubtedly a crucial part of the case 

against Sanchez, there was significant other evidence that Sanchez, and not 

L.P., murdered Moreno. Sanchez’s blood was trailed through the house and 

outside. He also left bloody clothes with an acquaintance on the night of the 

murder. Sanchez suggests the blood evidence was not telling because he 

lived at the house and Moreno’s DNA was not found on his clothing, but no 

reasonable fact finder would conclude that Sanchez just happened to bleed all 

over both himself and the scene for some reason unrelated to the murder. In 

contrast, there was no physical evidence tying L.P. to the murder, and 

although both men fled, L.P. quickly turned himself in while Sanchez evaded 

capture for over a year. Finally, Sanchez had a motive for killing Moreno, 

whereas there was little to no support for the defense’s theory that she had 

spurned L.P. In short, the evidence that Sanchez committed the murder far 

outweighed the evidence supporting his defense that L.P. did, and Sanchez 

therefore fails to demonstrate that the police opinions were prejudicial based 

on the supposed weakness of the case against him. 

D. No Substantial Evidence Supported an Instruction on Accomplice 

Testimony.

Sanchez next argues that the trial court erred by failing to give sua 

sponte CALCRIM No. 334, which addresses accomplice testimony. We 

conclude that no such instruction was required, because there was no 

substantial evidence that L.P. acted as Sanchez’s accomplice.

Section 1111 defines an accomplice “as one who is liable to prosecution 

for the identical offense charged against the defendant on trial in the cause in 
34

which the testimony of the accomplice is given.” “ ‘To be chargeable with an 

identical offense, a witness must be considered a principal under section 31.’ 

[Citations.] In other words, there must be evidence of that person’s ‘guilt . . . 

based on a combination of the direct perpetrator’s acts and the aider and 

abettor’s own acts and own mental state.’ ” (People v. Johnsen (2021) 

10 Cal.5th 1116, 1155.)

To be considered by the jury, an accomplice’s testimony must “be 

corroborated by such other evidence as shall tend to connect the defendant 

with the commission of the offense; and the corroboration is not sufficient if it 

merely shows the commission of the offense or the circumstances thereof.” 

(§ 1111.) In addition, since “an accomplice has a natural incentive to 

minimize his own guilt before the jury and to enlarge that of his cohorts[,] . . . 

the law requires an accomplice’s testimony to be viewed with caution to the 

extent it incriminates others.” (People v. Brown (2003) 31 Cal.4th 518, 555.) 

CALCRIM No. 334 is the standard instruction incorporating those principles

to be given when it is disputed whether a witness is an accomplice. (See 

People v. Smith (2017) 12 Cal.App.5th 766, 779; cf. CALCRIM No. 335.)

Even absent a request, a trial court has the duty to instruct on the 

principles of accomplice testimony if there is “ ‘substantial evidence that a 

witness who has implicated the defendant was an accomplice.’ ” (People v. 

Johnsen, supra, 10 Cal.5th at p. 1155; People v. Tobias (2001) 25 Cal.4th 327, 

331.) But “ ‘ “if the evidence is insufficient as a matter of law to support a 

finding that a witness is an accomplice, the trial court may make that 

determination and, in that situation, need not instruct the jury on accomplice 

testimony.” ’ ” (Johnsen, at p. 1155.) We review de novo whether a required 

instruction was omitted. (People v. Waidla (2000) 22 Cal.4th 690, 733.)
35

Sanchez argues that there was substantial evidence that L.P. was an 

accomplice, “either as an aider and abettor to the killing or the actual 

perpetrator.” Sanchez points to the evidence that L.P. was initially a suspect, 

including that investigators repeatedly told L.P. he was at risk of being 

charged with murder and that he testified under a grant of immunity.15 But 

“[t]he fact that a witness has been charged or held to answer for the same 

crimes as the defendant and then has been granted immunity does not 

necessarily establish that [the witness] is an accomplice.” (People v. 

Stankewitz (1990) 51 Cal.3d 72, 90.) Likewise, “mere ‘presence at the scene 

of a crime or failure to prevent its commission’ ” does not establish that the 

witness acted as an accomplice. (People v. Richardson (2008) 43 Cal.4th 959, 

1024; see People v. Lewis (2001) 26 Cal.4th 334, 369.)

Rather, in addition to requiring that an accomplice be subject to 

prosecution for the same offense, “the law further requires a relationship 

between the defendant and accomplice, either by virtue of a conspiracy or by 

acts aiding and abetting the crime.” (People v. Ward (2005) 36 Cal.4th 186, 

212.) But Sanchez does not explain how any of the evidence supports the 

theory that he and L.P. committed the murder together. Sanchez points to 

evidence suggesting that L.P. stabbed Moreno himself, including that L.P. 

“knew where the knives were kept,” had a supposed motive to kill her, and 

fled from the scene as well, but this evidence does not suggest that Sanchez 

also participated in the murder. Sanchez mentions in passing that he and 

15 Sanchez filed a request for judicial notice of the warrant for L.P.’s 

arrest, which the Attorney General opposes. We deny the request. Not only 

was the warrant not admitted below, it is unnecessary to our decision 

because there is other evidence in the record showing L.P. was initially a 

suspect. (See People v. Hardy (1992) 2 Cal.4th 86, 134; People v. Doane

(2021) 66 Cal.App.5th 965, 969, fn. 1.) 
36

L.P. “[p]resumably . . . spoke” when they went outside to smoke together, but 

that is hardly substantial evidence that they discussed killing Moreno

beforehand. Nor is there any evidence that L.P. helped Sanchez commit the 

crime in any respect. In short, the record lacks substantial evidence that L.P. 

was an accomplice, as opposed to being the only perpetrator. Therefore, the 

trial court did not err by omitting an instruction on accomplice testimony.

E. Sanchez Forfeited His Claims of Prosecutorial Error, and His 

Trial Counsel Did Not Render Ineffective Assistance by Failing to 

Preserve Them.

Sanchez claims the prosecutor erred in two respects: by improperly 

appealing to the jury’s emotion in closing argument and by vouching for L.P. 

Relief is not available on either ground.

1. General legal standards

Prosecutorial “error occurs, as a matter of state law, when a prosecutor 

‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier 

of fact to convict.’ [Citation.] Federal constitutional error occurs only when 

the prosecutor’s actions ‘comprise a pattern of conduct that is serious and 

egregious, such that the trial is rendered so unfair that the resulting 

conviction violates the defendant’s right to due process of law.’ ” (People v. 

Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) When a claim of 

prosecutorial error “ ‘focuses upon comments made by the prosecutor before 

the jury, the question is whether there is a reasonable likelihood that the jury 

construed or applied any of the complained-of remarks in an objectionable 

fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960 (Smithey).) 

“[T]o preserve a claim of prosecutorial misconduct for appeal, ‘ “ ‘a 

criminal defendant must make a timely and specific objection and ask the 

trial court to admonish the jury to disregard the impropriety.’ ” [Citation.] 

The lack of a timely objection and request for admonition will be excused only 
37

if either would have been futile or if an admonition would not have cured the 

harm.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 942–943.) The requirement is 

meant to “ ‘ “ ‘encourage a defendant to bring errors to the attention of the 

trial court, so that they may be corrected or avoided and a fair trial had,’ ” ’ ” 

and it is “ ‘ “ ‘unfair to the trial judge and to the adverse party to take 

advantage of an error on appeal when it could easily have been corrected at 

the trial.’ ” ’ ” (People v. Forrest (2017) 7 Cal.App.5th 1074, 1081, quoting 

People v. Saunders (1993) 5 Cal.4th 580, 590, italics omitted.)

“A defendant whose counsel did not object at trial to alleged 

prosecutorial misconduct can argue on appeal that counsel’s inaction violated 

the defendant’s constitutional right to the effective assistance of counsel.” 

(People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).) Generally, “in the heat 

of a trial, defense counsel is best able to determine proper tactics in the light 

of the jury’s apparent reaction to the proceedings. The choice of when to 

object is inherently a matter of trial tactics not ordinarily reviewable on 

appeal.” (People v. Frierson (1991) 53 Cal.3d 730, 749.) Rather, as we have 

said, reversal on direct appeal for ineffective assistance of counsel is 

warranted 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.” (Mai, supra, 57 Cal.4th at p. 1009.)

2. Appeal to sympathy

Sanchez challenges certain comments the prosecutor made toward the 

beginning of her closing argument. Specifically, she told the jury she was 

“confident that [it was] going to see how Guillermo Sanchez . . . is guilty of 

first[]degree murder and how the vicious, violent last few moments of Isela 

Moreno’s life were stolen from her. From her five-year-old[,] now seven-year-
38

old son. His life, his kisses[,] . . . [¶] . . . [¶] and his cuddles.” Sanchez’s trial 

counsel stated, “Your Honor, I’m going to object to this,” and the trial court 

directed the prosecutor to “move on to the next part of [her] argument.” 

Generally speaking, “ ‘ “[a]n appeal for sympathy for the victim is out of 

place during an objective determination of guilt.” ’ ” (People v. Seumanu

(2015) 61 Cal.4th 1293, 1342 (Seumanu); People v. Vance (2010) 

188 Cal.App.4th 1182, 1192–1193.) Likewise, except in the penalty phase of 

a capital trial, a prosecutor may not “argue that the jury . . . should consider 

the impact of the crime on the victim’s family.” (Vance, at p. 1193.) “The 

justification for both of these exclusionary policies is that they deal with 

subjects that are inherently emotional, possessing an unusually potent power 

to sway juries, and . . . their use must therefore be rigidly confined and 

controlled.” (Ibid.)

The Attorney General argues that Sanchez forfeited this claim. 

Although Sanchez’s trial counsel objected, she did not ask the trial court to 

admonish the jury to disregard the prosecutor’s comments. (See People v. 

Hoyt, supra, 8 Cal.5th at p. 942.) And Sanchez does not argue that any 

exception to forfeiture applies. (See id. at pp. 942–943.) Thus, we agree with 

the Attorney General that the claim was forfeited.

Sanchez argues that he is nevertheless entitled to relief because his 

counsel rendered ineffective assistance by failing to preserve the issue. We 

are not persuaded. 

First, we agree with the Attorney General that Sanchez’s counsel could 

have had a legitimate reason for failing to seek an admonition. (See Mai, 

supra, 57 Cal.4th at p. 1009.) The trial court had already directed the 

prosecutor to move on, and counsel could have determined that further 

discussion would unhelpfully keep the jury’s focus on the issue. (See People 
39

v. Harris (2008) 43 Cal.4th 1269, 1290.) Sanchez does not attempt to refute 

this point or otherwise demonstrate that counsel could have had no rational 

reason for not pursuing the objection further.

Second, even if any of the prosecutor’s comments were erroneous and 

Sanchez’s counsel should have asked for an admonition, there is no 

reasonable probability that the omission affected the verdict. The challenged 

comments were a small portion of the closing argument, and the prosecutor 

did not mention Moreno’s son again or overly emphasize the murder’s 

brutality, a topic that was inescapable given the evidence. (See Seumanu, 

supra, 61 Cal.4th at p. 1344 [prosecutor’s brief remarks “could not have 

prejudiced [the] defendant”].) Moreover, the jury was instructed not to let 

“bias, sympathy, prejudice, or public opinion influence [its] decision,” an 

instruction we presume it understood and followed. (See People v. Ramirez

(2021) 10 Cal.5th 983, 1017–1018.) In particular, we disagree with Sanchez 

that this instruction “would have had no mollifying or curative force because 

there was a substantial likelihood that the jurors would not have treated the 

prosecutor’s argument as improper.” If anything, the trial court’s response to 

Sanchez’s counsel’s objection would have conveyed to the jury that the 

prosecutor’s comments were inappropriate. Counsel’s decision not to pursue 

the objection further was harmless. 

3. Vouching

Sanchez also argues that “the prosecutor improperly attempted to boost 

[L.P.’s] credibility before the jury in several deceitful and dishonest ways.” 

He focuses on the prosecutor’s examination of L.P. about L.P.’s testimony at 

the preliminary hearing and her closing argument addressing L.P.’s

immunity agreement. We reject this claim.
40

a. Additional facts

L.P. testified at the spring 2017 preliminary hearing only after he 

initially failed to appear and was arrested. On cross-examination at trial, 

L.P. acknowledged that he testified under a grant of immunity at the 

preliminary hearing. He also admitted that he had a 2017 conviction of 

domestic violence. On redirect, the prosecutor questioned L.P. about these 

topics as follows:

“Q. When you testified under the grant of immunity at the 

preliminary hearing, is it fair to say that the domestic 

violence misdemeanor conviction that you recently suffered 

was still a pending case?

“A. Wait, what?

“Q. Like, you hadn’t resolved it. You hadn’t pled to it.

“A. I actually did.

“Q. But not until after you testified at the preliminary hearing; 

is that fair to say?

“A. No.

“Q. So let me ask you this. When you came and you were in jail 

when you testified at the preliminary hearing for not 

coming to court—

“Do you remember that?

“A. Yeah.

“Q. Did you have to then go to Alameda County in custody and 

go to their jail?

“A. Yeah. Because you guys made me miss a court date.
41

“Q. And then . . . you had to resolve that case and take care of 

it, right?

“A. No. That case is already [taken] care of. It was a court 

date . . . to see if I was taking my classes.

“Q. But . . . you had to answer questions about that case—

“A. No, I didn’t.

“Q. —when you testified at the preliminary hearing?

“A. Yes.

“Q. And so part of you testifying would have been answering 

questions that you had a Fifth Amendment . . . privilege . . . 

about that case; is that fair to say?” 

The defense objected, and after a bench conference, the

prosecutor continued:

“Q. Is it fair to say that the immunity agreement that . . . you 

were testifying under didn’t protect you from perjuring 

yourself on the witness stand?

“A. I guess.

“Q. Lying on the witness stand. We could still file charges 

against you for that.

“A. Yeah.”

The May 2017 immunity agreement, which was admitted into evidence 

and published to the jury, provided in relevant part, “After the witness 

testifies, if the court determines that the witness would have been privileged 

to withhold that information, but for the provisions of Penal Code 
42

section 1324, the witness will be granted use immunity.[16] Therefore, none of 

the statements obtained from the testimony of the witness, nor information 

derived from the testimony in this case may be used in any criminal 

prosecution against the witness. This is not transactional immunity. The 

witness may still be prosecuted for any crimes committed, including perjury 

or contempt for failing to answer questions while testifying in this case.”

In closing, the prosecutor addressed L.P.’s grant of immunity while 

arguing that Sanchez did not kill Moreno in the heat of passion. The 

prosecutor urged the jury to conclude that L.P. was lying to police when he 

originally said Sanchez and Moreno were fighting before the killing, evidence 

that might support a verdict of voluntary manslaughter. The prosecutor told

the jurors that L.P. “never told the police he saw a stabbing,” even though 

“you knew that he saw it” because he was “bawling” during the interview. 

The prosecutor continued, “And [L.P.] told you what he saw with his eyes. 

And he testified at the preliminary hearing about what he saw, under a grant 

of immunity, where that evidence couldn’t be used against him. That would 

have been the time for him to say, I did it. When I couldn’t have prosecuted 

him for what he said. [¶] No, that’s when he came and told the truth. That’s 

when he said he saw the stabbing. And that testimony at the preliminary 

hearing is consistent with what he told you here, when he said he was silent 

before that stabbing.” 

16 “ ‘Use immunity protects a witness only against the actual use of [the 

witness’s] compelled testimony, as well as the use of evidence derived 

therefrom. Transactional immunity protects the witness against all later 

prosecutions relating to matters about which [the witness] testifies.’ ” (People 

v. Vines (2011) 51 Cal.4th 830, 882, fn. 24.) 
43

b. Analysis

Generally, “ ‘[i]mpermissible “vouching” may occur where the 

prosecutor places the prestige of the government behind a witness through 

personal assurances of the witness’s veracity or suggests that information not 

presented to the jury supports the witness’s testimony.’ ” (Seumanu, supra,

61 Cal.4th at p. 1329.) Improper vouching may occur during either a 

prosecutor’s questioning or argument. (See id. at p. 1330.) “The vice of such 

remarks is that they ‘may be understood by jurors to permit them to avoid 

independently assessing witness credibility and to rely on the government’s 

view of the evidence.’ [Citation.] However, these limits do not preclude all 

comment regarding a witness’s credibility. ‘ “ ‘[A] prosecutor is given wide 

latitude during argument. The argument may be vigorous as long as it 

amounts to fair comment on the evidence, which can include reasonable 

inferences, or deductions to be drawn therefrom.’ ” ’ ” (People v. Bonilla

(2007) 41 Cal.4th 313, 336–337.)

First, Sanchez claims that the prosecutor improperly tried to create the 

impression that L.P. was credible because L.P. “was so forthcoming at the 

preliminary examination [that] he answered questions related to a subject 

matter that he did not have to, as he had a Fifth Amendment privilege [not 

to] answer questions concerning his misdemeanor spousal battery case from 

Alameda County.” According to Sanchez, L.P. entered a plea to the charge

and was sentenced on January 7, 2017, five months before the preliminary 

hearing.17 Thus, Sanchez reasons, L.P. actually “did not have any valid 

17 Sanchez asks us to take judicial notice of a portion of L.P.’s criminal 

record that reflects L.P.’s plea and sentence for the misdemeanor, a request 

the Attorney General opposes. We deny the request because this document 

also was not presented to the trial court and is not necessary to our decision. 
44

privilege against self-incrimination . . . that he could assert at the time he 

testified at the preliminary examination” unless an appeal of his conviction 

was pending. (See People v. Fonseca (1995) 36 Cal.App.4th 631, 635 

[privilege retained at least until sentencing and pending resolution of 

appeal]; see also People v. Lopez (1999) 71 Cal.App.4th 1550, 1554 [privilege 

disappears if conviction not appealed].) 

Assuming, without deciding, that L.P. did not have a Fifth Amendment 

privilege related to the misdemeanor case at the time of the preliminary 

hearing, we conclude that Sanchez forfeited this aspect of his claim. His trial 

counsel objected to the prosecutor’s question about this topic, apparently with 

success, as the prosecutor did not return to it after the unreported bench 

conference. Indeed, L.P. never actually answered the question. Sanchez does 

not contend that the mere asking of the question created incurable harm, and 

counsel never asked that the jury be admonished. Accordingly, Sanchez 

cannot complain that the trial court’s halting of the question was insufficient.

In turn, Sanchez fails to demonstrate that his trial counsel rendered 

ineffective assistance by failing to request an admonition or, at least, to 

request that the objection be sustained on the record. Having successfully 

prevented the prosecutor from obtaining an answer to the question, counsel 

could have “decided it would be unhelpful to have the jurors admonished” or 

further pursue the objection, “since doing so could have emphasized the 

issue.” (People v. Pettie, supra, 16 Cal.App.5th at p. 81.) Sanchez’s cursory 

assertion that competent counsel would not have wanted the jury to “hear 

improper argument and questioning from the prosecutor” bolstering L.P.’s 

credibility does not persuade us otherwise. 

(See People v. Hardy, supra, 2 Cal.4th at p. 134; People v. Doane, supra, 

66 Cal.App.5th at p. 969, fn. 1.) 
45

Second, relying on People v. Rodriguez (2020) 9 Cal.5th 474, Sanchez 

claims the prosecutor erred by asking questions related to L.P.’s immunity

agreement to establish L.P. could be charged with perjury if he lied during 

his testimony. In Rodriguez, the Supreme Court held that the prosecutor’s

argument that two law enforcement witnesses “would not lie because each 

would not put his ‘entire career on the line’ or ‘at risk’ constitute[d] 

impermissible vouching,” since there was no evidence that giving false 

testimony would expose the officers to being fired. (Id. at p. 481.) The court 

declined to determine whether another of the prosecutor’s arguments, that 

the witnesses would not expose themselves to “ ‘possible prosecution for 

perjury,’ ” likewise amounted to improper vouching. (Id. at pp. 479, 483.) In 

doing so, however, the court observed: “That a perjury prosecution for false 

testimony was ‘possible’ may have been a fact within the common knowledge 

of jurors; however, . . . a lay juror would naturally think that a prosecutor 

would know more about when someone can be prosecuted for perjury than a 

juror. For this reason, prosecutors are well advised to generally avoid raising 

the subject of future perjury prosecutions in their closing arguments.” (Id. at 

p. 483.)

Sanchez’s trial counsel did not object to the prosecutor’s comments 

about the possibility that L.P. could be prosecuted for perjury, and the 

argument is therefore forfeited. Nor did counsel’s omission constitute 

ineffective assistance of counsel. Unlike the comments about prosecution for 

perjury in Rodriguez—which the Supreme Court merely suggested were 

inadvisable—the prosecutor’s statements indicating that L.P. could be 

prosecuted for perjury despite the immunity agreement were clearly based on 

information in the record, namely the agreement’s own statement to that 

effect. Sanchez does not claim that the agreement was improperly admitted, 
46

and counsel could have reasonably decided not to object to questioning that 

referred to something already in evidence. 

Third, Sanchez claims that the prosecutor falsely argued to the jury 

“that all [L.P.] had to do was to admit that he had killed [Moreno] and . . . he 

could not be prosecuted for the admission.” Sanchez contends that the 

prosecutor’s “argument misrepresent[ed] ‘use’ immunity,” which “does not 

immunize a witness from a prosecution that is . . . separate and apart and not 

derived from the witness’s testimony.” Once again, this claim is forfeited, 

because the defense did not object below to the prosecutor’s argument or 

request an admonition, and Sanchez does not claim that an exception to 

forfeiture applies. 

Nor did the failure to object to the prosecutor’s argument constitute 

ineffective assistance of counsel. Although Sanchez correctly describes use 

immunity (see People v. Vines, supra, 51 Cal.4th at p. 882, fn. 24), the 

challenged argument was technically consistent with the principle that a 

witness may still face prosecution so long as the prosecution is not based on 

the immunized testimony. The prosecutor argued that if L.P. had testified at 

the preliminary hearing that he stabbed Moreno, “that evidence”—his 

testimony—“couldn’t be used against him,” and “[she] couldn’t have 

prosecuted him for what he said.” (Italics added.) 

We acknowledge that a lay juror might have nonetheless inaccurately

concluded “that all [L.P.] had to do was testify that he had stabbed [Moreno], 

and he would/could never be charged with her killing or subsequently 

prosecuted.” But even if the challenged argument was misleading, it was not 

so clearly improper that Sanchez’s trial counsel could have had no rational 

reason for failing to object to it. In any event, as the case law recognizes, 

defense counsel may validly decide not to object even if the objection has 
47

merit. (See, e.g., People v. Huggins (2006) 38 Cal.4th 175, 206 [rational not to 

object to avoid calling attention to prosecutor’s remarks]; People v. Frierson, 

supra, 53 Cal.3d at p. 749 [rational to counter prosecutor’s point with 

argument instead of objecting].) 

Finally, even if reasonably competent counsel should have more fully 

objected to the statements of which Sanchez complains, we conclude that the 

failure to do so was harmless because there is no reasonable probability that 

the verdict was thereby affected. As we have said, L.P.’s testimony was 

crucial evidence against Sanchez, but we agree with the Attorney General 

that “the jury had ample opportunity to ‘judge [L.P.’s] credibility 

independently of the prosecutor’s argument.’ ” (Quoting People v. Johnson

(1992) 3 Cal.4th 1183, 1225 [concluding alleged vouching was harmless].) In 

addition to hearing L.P.’s live testimony, the jurors viewed the recordings of 

his interviews with police, and they could evaluate his changing story for 

themselves. Moreover, the jury was instructed under CALCRIM No. 222 that 

the attorneys’ questions and arguments were not evidence and under 

CALCRIM No. 226 that it alone was responsible for judging the credibility of 

witnesses, instructions we presume it followed. (See People v. Ramirez, 

supra, 10 Cal.5th at pp. 1017–1018.) In short, any improper vouching, and 

thus counsel’s failure to object fully to it, was harmless. 

F. No Cumulative Error Appears.

Sanchez also claims that even if the errors he has identified are not 

prejudicial individually, they cumulatively denied him due process and a fair 

trial. The trial court did not err by admitting gang evidence or failing to 

instruct on accomplice testimony, however, and Sanchez has not shown that 

his trial counsel rendered ineffective assistance in any respect relating to the 
48

police opinions or alleged prosecutorial errors. Thus, his claim of cumulative 

error fails. 

G. Remand Is Required for the Trial Court to Consider Whether to 

Strike the Section 667(a) Enhancement.

Finally, Sanchez claims that pursuant to Senate Bill No. 1393, remand 

is required for the trial court to exercise its discretion whether to strike the 

five-year term for the prior serious felony under section 667(a). The Attorney 

General concedes, and we agree, that remand is required. 

When Sanchez was sentenced in 2018, trial courts had no discretion to

strike an enhancement for a prior serious felony under section 667(a). 

Effective January 1, 2019, however, Senate Bill No. 1393 amended the law to 

enable courts to strike such an enhancement in the interest of justice under 

section 1385. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The 

legislation is retroactive and applies to all judgments that, like Sanchez’s, are 

not yet final. (Id. at pp. 971–972.)

In such circumstances, remand is required unless it would be futile 

because “ ‘ “the record shows that the trial court would not have exercised its 

discretion even if it believed it could do so.” ’ ” (People v. McDaniels (2018) 

22 Cal.App.5th 420, 425; People v. Garcia, supra, 28 Cal.App.5th at p. 973,

fn. 3.) As the parties agree, the record does not demonstrate that remand 

would be futile. To the contrary, the trial court expressed concern about the 

length of Sanchez’s sentence in light of his youth, and it struck the prior 

strike in the interest of justice. Accordingly, remand is required for the court 

to exercise its discretion whether to strike the section 667(a) enhancement.
49

III.

DISPOSITION

The matter is remanded for the trial court to exercise its discretion 

whether to strike the enhancement under Penal Code section 667, 

subdivision (a). In all other respects, the judgment is affirmed.
50

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Sanchez A157538