People v. Sanchez

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN SANCHEZ,

Defendant and Appellant.

S087569

Tulare County Superior Court

40863

April 29, 2019

Justice Chin authored the opinion of the court, in which Chief

Justice Cantil-Sakauye and Justices Corrigan, Liu, Cuéllar,

Kruger, and Groban concurred.

PEOPLE v. SANCHEZ

S087569

Opinion of the Court by Chin, J.

After two juries were unable to reach a verdict, a third jury

convicted defendant, Juan Sanchez, of the first degree murders

of Ermanda Reyes and Lorena Martinez under the special

circumstances of multiple murder and, as to Lorena Martinez,

rape by instrument. It also found true that defendant

personally used a firearm during the commission of both

murders. After a penalty trial, the jury returned a verdict of

death. The court denied the automatic motion to modify the

verdict and imposed a judgment of death. This appeal is

automatic. We affirm the judgment.

I. THE FACTS

A. Guilt Phase

1. Overview

The evidence supported a jury finding that early in the

morning of August 4, 1997, defendant entered the Porterville

home of Ermanda Reyes (Ermanda) and her 17-year-old

daughter, Lorena Martinez (Lorena), sexually assaulted Lorena,

then shot and killed both mother and daughter. (All future

dates in this factual recitation are to the year 1997 unless

otherwise indicated.)

Defendant presented evidence trying to raise a reasonable

doubt that he committed the crimes.

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2. Prosecution Evidence

In early August, Ermanda lived on North Wellington

Street in Porterville with her daughter, Lorena, her 13-year-old

son, Victor M. (Victor), and her five-year-old son, Oscar H.

(Oscar). Rosa Chandi, the sister of Ermanda’s former husband,

Efrain M. (Lorena’s and Victor’s father), lived with several

family members nearby on North Wellington. Victor spent the

night of Sunday to Monday, August 3-4, at his father’s house,

but Ermanda, Lorena, and Oscar were home that night.

Chandi woke early on the morning of Monday, August 4.

A short time later, she observed Oscar approach her house

alone. Oscar told her that his mother and Lorena were

“sleeping,” were “bleeding” and “cut,” and he could not wake

them. Chandi went with Oscar to the Reyes home. The front

door was open, and Chandi entered with Oscar. Inside, she saw

Ermanda’s and Lorena’s bodies in their respective bedrooms.

She returned to her home and dialed 911. Officer Larry

Rodriguez was the first to respond, arriving around 5:48 a.m.

He entered the house and observed the bodies. Other

responders soon arrived.

Lorena’s body was in her bedroom lying partially on the

bed and partially on the floor. She was wearing a bloody T-shirt

that had been pulled up over her stomach area and a bra that

had been pulled up enough to expose one breast. The bra had a

one-inch cut that a knife might have made. Bloodstained

underpants were around Lorena’s knees. A separate piece torn

from the underpants was on the floor nearby. A black-handled,

silver-bladed steak knife was found on the bed under Lorena’s

body.

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Blood was found in various places in the house, including

a trail leading from outside Lorena’s bedroom into the master

bedroom, where Ermanda’s body was located. Ermanda’s body

was lying on the floor next to the bed. A telephone was on a

nightstand near the bed, but the handset to the telephone was

on the floor. The physical evidence indicated that Lorena had

been shot in her bedroom, and Ermanda had been shot outside

Lorena’s bedroom, then managed to return to her bedroom,

where she died.

Lorena died of wounds to the chest from two gunshots.

Fresh bruising and scratching in her genital and anal areas

indicated she had been sexually assaulted by an instrument of

some kind. Ermanda bled to death from a gunshot wound

through the chest. She could have engaged in physical activity

briefly before she died.

Investigators found three bullets, one in Lorena’s

mattress, one in her clothes, and one in the family room that had

passed through her bedroom wall. They also found two

unexpended cartridges in her bedroom. All came from the same

gun, “[m]ore than likely” a nine-millimeter Luger

semiautomatic handgun.

Detective Ty Lewis was dispatched to the crime scene at

5:45 a.m. that morning. When he arrived, he entered the Reyes

home briefly, then went to the Chandi residence, where he spoke

individually with Chandi and others. Chandi told him about a

“boyfriend” she had seen recently at the Reyes house who might

have committed the crime. She did not know his name, but she

described him and said he drove a yellow truck. Detective Lewis

spoke briefly with Oscar, who seemed “very calm.” Oscar told

him that “he had been sleeping in his mother’s bedroom on the

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floor and that he awoke to a man’s loud voice, and there was a

man standing in the bedroom.” At that point, Oscar became

nonresponsive, and Detective Lewis ended the interview.

Sergeant Chris Dempsie spoke with Oscar alone around

7:00 a.m. that morning at the Chandi house. During the

interview, Oscar was emotional. “Periodically, he would stop

crying and answer questions, but he was crying when he first

came to me, and I believe he was crying towards the end of the

interview also.” Oscar told Sergeant Dempsie that he had been

sleeping in his mother’s bed and was “awakened by

firecrackers.” He “saw his mother coming towards the telephone

that was next to his bed, and he also saw a man in the room with

her.” His mother was bleeding. She grabbed the telephone, then

fell backwards. Oscar said that the man had a “wisp on his

chin”; when he said that, Oscar brushed his chin with his hand.

Oscar also said he was the man who “had brought him ice

cream.” Oscar said he tried to wake his mother but could not.

He also saw blood on the walls and saw his sister and heard her

screaming. She was bleeding. Then he ran outside to his aunt’s

house.

After speaking with Oscar, Sergeant Dempsie spoke with

Victor, who had come to the Chandi house when he heard what

had happened. He asked if Victor knew of someone who had

brought Oscar ice cream. Victor testified that until that point,

he was unaware defendant might have been involved in the

crime. But he remembered that the previous Saturday, August

2, Oscar was eating ice cream at home. Defendant was present.

Victor testified that Oscar told him at the time that “Juan” had

gotten him the ice cream. Later in his testimony, Victor clarified

that he had remembered the name “Juan” from seeing

defendant at the Reyes house that weekend. Oscar did not use

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the name at the time. Thus, Victor told the police that “Juan”

had given Oscar the ice cream. Victor was also able to tell the

police where defendant lived because Victor’s family had once

lived near him.

Later that morning, Sergeant Eric Kroutil obtained a

photograph of defendant and showed it to Oscar. In the

photograph, defendant had a mustache but no goatee. Oscar

said the photograph was of “Juan,” and he was the man he had

seen in the house earlier that morning. At the time, Sergeant

Kroutil was aware that Victor, not Oscar, had first used the

name “Juan.”

Defendant was arrested in his home in Porterville around

11:00 to 11:20 a.m. the same morning. After defendant’s arrest,

Sergeant Dempsie showed Oscar a photographic lineup

containing a photograph of defendant taken that day. In this

photograph, defendant had both a mustache and a goatee.

Oscar identified defendant’s photograph as that of Juan, the

man who had given him ice cream and was in the house the

morning of the murders. The interview was videotaped, and the

videotape was played to the jury. During the interview, in

addition to identifying defendant’s photograph, Oscar added

new details about what had occurred in the house that morning.

He said that he hit Juan in the stomach; that Juan had a knife

and a gun in his hand; that two men were in the room, one

named Juan and one named Michael; and that Juan left the

house in his yellow truck.

The same morning, Detective Steve Ward obtained a

warrant to search defendant’s home. He seized a steak knife

with a black handle that he observed on a kitchen counter. He

looked for, but could not find, a similar knife. Mary Lucio,

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defendant’s wife, testified that she had bought that knife and a

similar but smaller knife at a “99-cent store” the previous

February. She could not remember what happened to the

second knife. She said she told police it probably got lost or was

thrown away in the trash. After his arrest, defendant wrote a

letter to Mary in Spanish telling her “to remember the knife that

you had lost cutting cantaloupe.” After receiving the letter, she

told police that she lost the knife cutting cantaloupe. But at

trial, she testified that she did not know what had happened to

it.

A forensic metallurgist testified that he compared the

knife found in Lorena’s bedroom with the knife seized from

defendant’s house. He said that certain “design characteristics

of the items suggest [a] common manufacturer,” but he could not

be certain.

Sergeant Kroutil interviewed defendant in English for

about 30 to 40 minutes the afternoon of his arrest. Defendant

“appeared concerned for his friends, cooperative . . . like he was

wanting to help.” After defendant was given and waived his

Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), he

said he had known Ermanda but had not seen her for about two

years until the previous Saturday, August 2. On that Saturday,

he went to her home and drank beer with her for about three

hours. He also bought ice cream for Oscar. The evening of

Sunday, August 3, he spent some time at the home of Hector

Hernandez, then returned to his home, where he spent the

night. Lucio woke him that morning around 8:00 a.m., and he

stayed in bed until 8:45 a.m.

When Sergeant Kroutil showed defendant a picture of the

knife found in his home, he strongly denied it was his, saying,

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“I’ve never seen a knife that looks like this.” Then, when he

realized the picture had been taken in his own home, he said,

“[Y]eah, . . . my wife bought that at the 99-cent store.” When

asked whether she had bought another knife at the same time,

he said, as Sergeant Kroutil testified, “[N]o, absolutely not, that

was the only knife she bought.”

Later the same day, Sergeant Kroutil spoke with

defendant again briefly, mainly to obtain his consent to an

interview the next day in Visalia. Other than standard booking

procedures, no one else interviewed defendant that day. The

next day, August 5, Sergeant Kroutil transported defendant to

Visalia, where Visalia Police Detective Steve Shear interviewed

him. The interview was tape recorded.

Detective Shear’s interview with defendant began in

English, then defendant requested and obtained a Spanish

interpreter. Detective Shear testified, however, that he could

understand defendant’s English and defendant appeared to

understand his English. Detective Shear told defendant about

his Miranda rights, including that he had a right to an attorney.

Defendant did not request an attorney. Defendant again denied

committing the crime. When Detective Shear showed him a

photograph of the knife found in his home, he said that his wife

had purchased it at a 99-cent store. When Detective Shear

showed him a photograph of the smaller knife found at the crime

scene, defendant said he was not sure it was his. Later he said

he remembered that the smaller “knife had been inadvertently

left in the back yard when he and his wife had been cutting

watermelon . . . about a week earlier.” Defendant also reiterated

that he had bought Oscar ice cream the previous Saturday.

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After the interview with Detective Shear on August 5,

defendant told Sergeant Kroutil that a “smaller version” of the

knife found in his house had been “lost in his back yard and [he]

was wanting somebody to go check or something like that.”

Defendant spoke with police for a total of less than one

hour on August 4 and less than two hours on August 5.

The next day, August 6, Detective Ward spoke with

defendant for about 30 minutes. After that interview, Sergeant

Ernie Garay, who speaks Spanish, interviewed defendant.

Defendant had just eaten lunch. The interview between Garay

and defendant was mostly in Spanish but some of it was in

English, which defendant understood. An interview that was

not recorded began at 12:30 p.m. and continued until they took

a break at 1:55 p.m. Defendant was given and waived his

Miranda rights. At first, defendant again denied committing

the crime. But about 20 to 30 minutes into the interview, he

said, “I’m screwed,” and, as Sergeant Garay described it,

“admitted going over to the house and shooting both of the

victims.” After telling Sergeant Garay in the unrecorded

interview what he had done, defendant agreed to give a

videotaped statement, which began at 2:20 p.m., in which he

reiterated his confession. The videotape was played to the jury.

In the videotaped statement, after again receiving and

waiving his Miranda rights, defendant said the following: He

entered the Reyes house through an unlocked door. (One

witness testified that the Reyes house was often unlocked.) He

had a gun, but no knife. He was looking for Ermanda, who owed

him money and had insulted him. When he saw Ermanda, he

“just shot” two or three times. He also shot the other woman

about two times. He did not know if he hit them. He did not

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know why he shot, saying, “I was blacked out.” But he also said

he saw a knife in Lorena’s hand and thought “she was going to

kill me.” He did not see anyone else in the house and did not

follow anyone into the other room. He denied sexually

assaulting Lorena, stating, “I didn’t touch her.” He was inside

for only about five minutes. He then left the house and drove

away in his truck. While driving, he threw the gun into a field.

He thought the gun was a “.22” but added, “I don’t know guns.”

(The police looked for the gun where defendant said he had

thrown it but could not find it.)

By the time of the third trial, more than two years after

the crime, Oscar testified that he remembered little about the

events of August 4. He did remember that defendant had

brought him ice cream, although he could not remember when.

He also remembered talking to the police on August 4, when

everything was fresh in his mind; he testified that he told them

the truth. At one point on redirect examination, Oscar did

identify defendant as a man he saw the day his mother was

killed. But then he promptly reiterated that he did not

remember. On recross-examination by defense counsel, he also

identified a photograph of a different person as someone else he

saw at his mother’s house the night she died.

Hector Hernandez testified that defendant came to his

house twice during the evening of Sunday, August 3, using his

yellow truck. Hernandez asked defendant to give him a ride to

work the next morning, as he often did. Defendant agreed to

give him a ride, and Hernandez gave him ten dollars to pay for

it. The next morning, August 4, Hernandez woke at 5:00 a.m.,

as he had to be at work by 6:30 a.m. Defendant was supposed

to come to his home around 6:00 a.m. Hernandez called his

brother for a ride just after 5:30 a.m. because he feared

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defendant would not come. His brother then gave him a ride to

work. Hernandez testified that defendant did not come to his

house that morning, or at least that he did not see him.

Margarita Ruiz testified that soon after the murders,

Hernandez told her that defendant had been at his house

around 5:00 a.m. on August 4. Hernandez denied telling her

this. Hernandez’s brother testified that Hernandez called him

to give him a ride to work around 5:00 to 5:10 a.m. that morning.

Hernandez had not called him the night before.

Hernandez later testified that he had had a sexual

relationship with defendant for about five years, and he loved

him. He said, however, that he would not lie for defendant and

insisted that defendant did not come to his house early on

August 4.

Lucio testified that on August 4, she went to bed for the

last time around 4:30 a.m. Defendant was in her bed at the

time. She awoke around 6:30 to 7:00 a.m. Defendant was in her

bed at that time also. However, Lucio told police that defendant

“might have been acting like he was asleep” when she went to

bed at 4:30 a.m., that she was sleeping “very soundly” that

morning, that it was “absolutely” possible for defendant to leave

her bed and return without disturbing her, and that he had done

so “hundreds of times” or “a thousand times” in the past. At

trial, Lucio denied that defendant could have left without her

knowing it. After the killings, Lucio told a friend that the

morning of August 4, defendant was withdrawn and acting

strange. He wanted to put his truck in the backyard.

Several witnesses, including Chandi, testified that they

saw defendant or his distinctive yellow truck, or both, at or

around the Reyes residence on multiple occasions the weekend

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before the crimes. One witness testified that she observed

defendant drive the truck by the residence “real slow” more than

once. Around 1:30 a.m. on the morning of August 4, when she

went outside to smoke, the same witness saw defendant talking

with Ermanda in her garage. Ermanda appeared agitated.

Another witness testified she saw defendant there three times

within a short period of time. Once she saw defendant and

Ermanda speaking loudly in front of her house. Defendant was

gesturing with his hands. Another witness testified that she

saw defendant with Ermanda the Saturday before the killings.

Defendant left in his truck appearing upset.

Michael Stephens, Lucio’s nephew, who was at

defendant’s home early on the morning of August 4, testified

that he might have heard what he believed was defendant’s

noisy truck early that morning, but he was not sure. Previously,

Stephens had told police unequivocally that he did hear the

truck start up early that morning.

Lucio testified that defendant once told her that he wanted

to bring a firearm home, although she did not see any guns at

home. Alonzo Perez, Hernandez’s cousin, testified that he drove

to a dump with defendant in defendant’s yellow truck the day

before the murders. Defendant told him that “he had a gun at

home.” Camarino Reyes, Ermanda’s brother, testified that

before Ermanda’s funeral, Raul Madrid, Ermanda’s brother-in-

law, told him that the week before Ermanda was killed, Madrid

gave defendant a ride home. On his way back, Madrid realized

that defendant had left a nine-millimeter gun in his pickup.

Madrid said he returned the gun the next day. After Madrid

said this, he said no more and reacted as if “he had blown it.” At

trial, Madrid denied the conversation. Catherine Barrera

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testified that defendant stayed with her for a while during the

summer of 1997. He told her he had a gun.

The distance by car from the Reyes house to Hernandez’s

home was 1.4 miles, and it took about two minutes 40 seconds

to drive it. The distance from defendant’s home to the Reyes

house was 1.5 miles, and it took about three minutes ten seconds

to drive it. The distance from defendant’s house to Hernandez’s

home was 1.6 miles, and it took about two minutes 35 seconds

to drive it.

The prosecution also presented evidence that was

exculpatory. Defendant’s DNA was not found anywhere in the

Reyes house. His fingerprints were found on some beer cans but

not elsewhere in the house. A bloody shoeprint was found in the

house. The boots defendant wore when he was arrested did not

match the shoeprint, nor did police find any matching shoes in

defendant’s house. None of defendant’s clothes were

bloodstained. Neither semen nor sperm were found in or around

Lorena’s body.

When police arrived at the crime scene, the window of

Victor’s bedroom was open. The window screen was removed

and leaning against the wall outside. But the window ledge on

the inside was dusty and showed no signs of a recent

disturbance. The knife found at the crime scene had one partial

and two full fingerprints that were unidentified but were not

defendant’s or Lucio’s. The sliding portion of the open window

of Victor’s bedroom contained unidentified fingerprints that

were not defendant’s. Because of similarities between the prints

on the window and the prints on the knife, there was a “strong

possibility” they came from the same person. But because of the

nature and condition of the prints, the fingerprint examiner

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could not say for sure. The examiner could not say how long the

prints had been there.

3. Defense Evidence

Defendant presented evidence relevant to Oscar’s

credibility at trial and the credibility of Oscar’s statements and

identifications the day of the crimes. This evidence included

events that might have influenced him, primarily conversations

inside the Chandi house the morning of the crimes; Oscar’s

inconsistent statements, including some of his prior testimony;

testimony from Wanda Newton, a professional counselor who

provided therapy to Oscar; and testimony from Dr. Susan

Streeter, a psychologist and expert on the reliability of child

witnesses. He also presented evidence of his actions the day

before the crimes, evidence inconsistent with some of the

prosecution evidence, and evidence from persons who knew

Ermanda and Lorena well that they never saw defendant at

Ermanda’s home.

Defendant testified. He denied committing the crimes. He

said he visited Ermanda the Saturday before the crimes and

again the next day. He had never been to the house previously,

although he had known Ermanda from a time in the past when

she lived near him. On that Saturday, he brought a six-pack of

beer and, for Oscar, ice cream. On Sunday evening, August 3,

he went to Hernandez’s home for a while, then returned home,

where he eventually went to bed. He awoke the next morning,

August 4, around 9:30-9:45 a.m. He was surprised to be arrested

later that morning.

Defendant said he had not agreed to give Hernandez a ride

to work the morning of August 4. He also denied telling Alonzo

Perez and Catherine Barrera that he had a gun.

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Defendant testified about his interviews with police on

August 4, 5, and 6, leading to what he said was a false

confession. He denied that Sergeant Kroutil gave him his

Miranda rights. He said he asked Sergeant Kroutil, Detective

Shear, and Sergeant Garay for an attorney on multiple

occasions, although never when the interview was being

recorded. He said the officers ignored his requests, except that

Detective Shear told him he did not need an attorney.

Defendant testified that Detective Ward threatened to put

him in a cell with a “crazy man . . . so he can kill you.” The

detective also said, “I better tell him, and if not, then he, himself,

would inject me so that he could see me die, suffering, dying,

little by little for what I had done.” Sergeant Garay threatened

to take his family away “if I didn’t tell him.” Defendant

confessed “after they had me all scared and pressured. I told

them so they could leave me at peace.” He also confessed

“because of Ward’s threat, because Garay had already said to

me that he was going to take my family away, because I was

tired and so that I could satisfy them. I said it so they would

leave me at peace, alone. This was three days with the chains.

I was three days with the chains and all I wanted was to be left

alone or at peace.” (Both Sergeant Garay and Detective Ward

denied making these, or any, threats.)

Defendant also presented the testimony of Dr. Richard

Ofshe, a social psychologist, regarding, as defendant states it on

appeal, “how the misuse of police interrogation tactics, including

threats and coercion, can result in false confessions.”1

1

On rebuttal, the prosecution presented the expert

testimony of Joseph Buckley regarding police interrogations and

confessions.

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B. Penalty Phase

The prosecution presented evidence of defendant’s crimes

of violence against his wife, Mary Lucio, and his stepdaughter,

Tammy Lucio. It also presented the testimony of Rosa Chandi,

Michelle Chandi (Lorena’s cousin), and Victor about the impact

the murders had on them.

Defendant presented a substantial case in mitigation.

Thirteen friends and relatives who knew him well, including his

wife, son and stepchildren, testified about his difficult

upbringing, his good qualities, and their continuing love for him.

Dr. Jose La Calle, a clinical psychologist, testified that his

testing showed that defendant had an intelligence quotient (IQ)

of 84, “the lowest end of the dull normal intelligent level.”

Defendant’s “Spanish vocabulary was probably around third or

fourth elementary grade level.” He attended elementary school

sporadically for about three years. Someone with defendant’s

IQ could “do some problem solving in mechanics,” but

defendant’s abstract problem solving was “very poor.” He had

poor short-term attention span. He also had a “short fuse,”

meaning a “low tolerance threshold to a stress.” But “short fuse”

does not mean “violent reaction” or “blowing your top.”

Mike Harvey, a Tulare County deputy sheriff, testified

that defendant had had no “write-ups or disciplinary actions”

while in jail.

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II. DISCUSSION

A. Issues Regarding Guilt

1. Contentions Regarding Oscar’s Testimony and

Statements the Day of the Crimes

Defendant makes several arguments regarding Oscar’s

testimony and the evidence of his statements and photographic

identifications the day of the crimes.

To place the arguments into context, it is important to

keep in mind the following: By the time Oscar testified, more

than two years after the events, he had little memory of what

happened the morning of August 4, 1997. His trial testimony,

as distinguished from his statements on August 4, included little

that implicated defendant in the crimes. In his argument to the

jury, the prosecutor did not rely on Oscar’s testimony at all, but

only on the evidence of his statement to police that the man he

saw in the bedroom that morning was the one who had brought

him ice cream, and his two photographic identifications of

defendant as that man. What the jury had to decide was the

credibility of that statement and those identifications.

a. Oscar’s Competence To Testify

Defendant contends the court erred in finding Oscar

competent to testify.

“Except as otherwise provided by statute, every person,

irrespective of age, is qualified to be a witness and no person is

disqualified to testify to any matter.” (Evid. Code, § 700, italics

added.) “A person is disqualified to be a witness if he or she is:

[¶] (1) Incapable of expressing himself or herself concerning the

matter so as to be understood, either directly or through

interpretation by one who can understand him; or [¶] (2)

Incapable of understanding the duty of a witness to tell the

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truth.” (Evid. Code, § 701, subd. (a).) The grounds stated in

Evidence Code section 701, subdivision (a)(1) and (2), are the

“only” grounds for disqualifying a witness from testifying.

(People v. Anderson (2001) 25 Cal.4th 543, 572.)

Defendant does not contend that Oscar was incapable of

expressing himself so as to be understood. A quick review of the

transcript of his testimony shows he was quite capable of

expressing himself. But defendant contends the court should

have declared him disqualified because he was incapable of

understanding his duty to tell the truth.

“Capacity to communicate, or to understand the duty of

truthful testimony, is a preliminary fact to be determined

exclusively by the court, the burden of proof is on the party who

objects to the proffered witness, and a trial court’s

determination will be upheld in the absence of a clear abuse of

discretion.” (People v. Anderson, supra, 25 Cal.4th at p. 573.)

“[T]he credibility of a witness is an issue for the jury, and not a

relevant factor in determining competence to testify.” (People v.

Gonzales (2012) 54 Cal.4th 1234, 1264, fn. 16; see People v. Avila

(2006) 38 Cal.4th 491, 589-590.)

The trial court acted well within its discretion in

permitting Oscar to testify. Defendant moved to disqualify

Oscar before the first trial. The court presided over a lengthy

evidentiary hearing, during which Oscar, as well as others,

including Dr. Streeter and Wanda Newton, testified. After the

hearing, the court found him competent to testify in a written

ruling: “The court observed the minor testify on the issue and

has considered his demeanor and responses as well as the other

evidence presented. The court finds the minor witness is

capable of expressing himself concerning the matter so as to be

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understood and the minor understands his duty to tell the truth.

As to defense contentions of inconsistencies and concerns

relating to the minor’s therapy, these are matters for the trier of

fact to consider on the issue of credibility and are not a basis to

disqualify a witness from testifying. (See People v. Dennis

(1998) 17 Cal.4th 468.)”

At the original hearing, Oscar testified that he was seven

years old and in the first grade. At first, he said he did not know

the difference between the truth and a lie. But when questioned

carefully, he made clear he did understand the difference. The

prosecutor held what Oscar knew was a pen. When the

prosecutor said, “If I told you this is a car,” Oscar responded,

“That would be a lie.” When asked whether he would lie or tell

the truth while sitting in the witness chair, he responded, “The

truth.” He said he understood it was important for him to tell

the truth, and he would always tell the truth while sitting in the

chair. Defense counsel’s cross-examination and the redirect

examination reinforced that Oscar was able to understand his

duty to tell the truth.

Similarly, at the trial under review, Oscar made clear he

understood his duty to tell the truth. At the beginning of his

testimony, he said he would tell the truth. The prosecutor

asked, “If I said I was wearing a blue shirt, would that be the

truth or would that be a lie?” Oscar responded, “A lie.” The

prosecutor then asked, “If I said I was wearing a tie with

elephants on it, would that be the truth or would that be a lie?”

Oscar responded, “The truth.” The record before us does not

reveal the appearance of the prosecutor’s shirt or tie, but

presumably Oscar responded appropriately. No one suggested

otherwise. After this testimony, the court again found Oscar

competent to testify.

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Oscar’s testimony supports the trial court’s finding.

(People v. Dennis, supra, 17 Cal.4th at p. 525 [voir dire

testimony of a child four years old at the time of the crimes and

eight years old when testifying established that she “understood

the difference between truth and falsehood and appreciated that

she had to tell the truth”].) Defendant argues that Oscar had

made many inconsistent statements between the time of the

crimes and his testimony; that his memory had been corrupted

by, among other things, the fact he had undergone therapy; and

that he was incredible. Some of these arguments are factually

supported; all are irrelevant to Oscar’s competence to testify but

instead were matters for the jury to consider.

Oscar was seven or eight years old when he testified at the

third trial. Children much younger have been found competent

to testify. (People v. Lopez (2018) 5 Cal.5th 339, 351 [two child

witnesses, one six and a half years old, and the other not quite

five years old at the time of trial]; People v. Mincey (1992) 2

Cal.4th 408, 443 [five years old at the time of trial]; People v.

Giron-Chamul (2016) 245 Cal.App.4th 932, 941 [five years two

months old at the time of trial]; see People v. Roberto V. (2001)

93 Cal.App.4th 1350, 1368-1369 [collecting cases in which four-

and five-year-old children were found competent to testify].)

Regarding a five-year-old witness, we explained that

“[i]nconsistencies in testimony and a failure to remember

aspects of the subject of the testimony, however, do not

disqualify a witness. [Citation.] They present questions of

credibility for resolution by the trier of fact.” (People v. Mincey,

supra, 2 Cal.4th at p. 444.) Similarly, we can easily adapt to

this case our discussion in a case involving an eight-year-old

witness: “The facts that [Oscar] received therapy to help [him]

cope with [his] mother’s [and, here, sister’s] death, that [he]

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discussed the events with the prosecutor and others, and that

[he] had gaps in [his] memories of the [morning] the crimes

occurred, do not disqualify [him] as a witness.” (People v.

Dennis, supra, 17 Cal.4th at p. 526.)

In the Giron-Chamul case, the defendant argued the five-

year-old child was disqualified because her testimony was

“ ‘fantastical.’ ” (People v. Giron-Chamul, supra, 245

Cal.App.4th at p. 958.) The court disagreed for reasons that

apply here. It explained that the witness was “a child, and

children have imaginations. ‘[T]he fact that a very young

witness makes inconsistent or exaggerated statements does not

indicate an inability to perceive, recollect, and communicate or

an inability to understand the duty to tell the truth,’ even if

some parts of the child’s testimony may be ‘inherently

incredible.’ ” (Id. at p. 960.)

In short, we see no abuse of discretion in the trial court’s

finding Oscar competent to testify and letting the jury

determine his credibility.

b. Asserted Error in Admitting Oscar’s

“Unreliable” Statements and Testimony

In a similar vein, defendant argues that Oscar’s testimony

and earlier statements were too unreliable to be admitted. But,

as explained in part II.A.1.a, ante, these are arguments for the

jury to consider, not grounds to exclude the evidence. Defendant

also argues Oscar did not have “personal knowledge of the

matter” about which he testified. (Evid. Code, § 702, subd. (a).)

The comments of the Law Revision Commission to Evidence

Code section 701 explain, “Because a witness, qualified under

Section 701, must have personal knowledge of the facts to which

he testifies (Section 702), he must, of course, have the capacity

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to perceive and to recollect those facts. But the court may

exclude the testimony of a witness for lack of personal

knowledge only if no jury could reasonably find that he has such

knowledge. [Citation.] Thus, the Evidence Code has made a

person’s capacity to perceive and to recollect a condition for the

admission of his testimony concerning a particular matter

instead of a condition for his competency to be a witness. And,

under the Evidence Code, if there is evidence that the witness

has those capacities, the determination whether he in fact

perceived and does recollect is left to the trier of fact.” (Cal. Law

Revision Com. com., 29B pt. 2 West’s Ann. Evid. Code (1995 ed.)

foll. § 701, p. 284; see People v. Dennis, supra, 17 Cal.4th at pp.

525-526 [quoting the same comment], People v. Lopez, supra, 5

Cal.5th at p. 351.)

The trial court did not abuse its discretion in admitting

the evidence. (People v. Lopez, supra, 5 Cal.5th at p. 352.) Oscar

was present at the events about which he testified. At trial, he

could not remember much, but the jury was entitled to consider

and evaluate what he did remember. (People v. Dennis, supra,

17 Cal.4th at pp. 491-492 [trial court properly admitted the

testimony of a child who “did not remember much about the

traumatic attack on her mother”].) Oscar’s testimony “showed

that [he] could perceive and recollect, and [he] understood [he]

should not invent or lie about anything [he] said in court. [He]

was an eyewitness to the events. Consequently, once the trial

court properly determined [he] was competent to testify under

Evidence Code section 701, it had no basis for excluding [his]

testimony for lack of personal knowledge.” (Id. at p. 526.)

In fact, Oscar’s trial testimony was, by and large, quite

credible. He said he remembered little about the events of

August 4, 1997. The trial court specifically credited this part of

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his testimony. Oscar’s lack of current memory was, indeed,

consistent with defendant’s own evidence suggesting that later

events, such as therapy, might have corrupted his memory.

From the prosecutor’s perspective, probably his most important

testimony was that he told the police the truth the morning of

the crimes. The jury could readily find this testimony credible.

The jury could also find it credible that, although Oscar could

not remember what he told police, he did remember that,

whatever it was, it was the truth. Oscar also testified that

defendant had brought him ice cream, although he could not

remember when. This testimony was highly credible. That a

person brought him ice cream is something a five-year-old child

would likely remember. Moreover, defendant himself said that

he brought Oscar ice cream in his first interview with Sergeant

Kroutil and again at trial.

The trial court properly permitted the jury to consider

Oscar’s testimony and the evidence of his statements the

morning of the crimes and to judge for itself their reliability.

Contrary to defendant’s argument, doing so did not violate his

due process rights. (People v. Lopez, supra, 5 Cal.5th at pp. 353-

354.)

c. Admissibility of Oscar’s Photographic

Identifications

Defendant contends the procedures by which Oscar made

the two photographic identifications was impermissibly

suggestive and, to the extent Oscar identified defendant at trial,

that identification was tainted by the earlier improper

identifications.

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i. Factual Background

Sergeants Dempsie and Kroutil testified about the

identifications at an evidentiary hearing held before the first

trial. Sergeant Dempsie spoke with Oscar at Rosa Chandi’s

home early the morning of August 4, 1997. Oscar told him the

man he saw in the bedroom had brought him ice cream and had

a “wisp on his chin.” When Oscar said that he gestured by

rubbing his chin. Oscar gave no name. After speaking with

Oscar, Sergeant Dempsie spoke with Victor and obtained

information regarding defendant that he provided to Sergeant

Kroutil.

Using information that Sergeant Dempsie provided,

Sergeant Kroutil obtained a past booking photograph of

defendant. In the photograph, defendant had a mustache but

no goatee. Around 9:00 a.m. that morning, he showed the

photograph to Oscar while they were alone in a bedroom in the

Chandi residence. Sergeant Kroutil told Oscar something along

the lines of “I wanted to show him a photograph and see if he

knew the person in it.” Oscar said it was “Juan,” the man he

had seen “that morning while his mom was bleeding.” From

information that Sergeant Dempsie had provided, Sergeant

Kroutil understood that Oscar had originally not provided a

name, but in the interim he had gotten the name from Victor.

Oscar “was very strong in his belief that it was Juan.”

Later that morning, Sergeant Dempsie showed Oscar a

photographic lineup containing six photographs, one of which

was of defendant taken that morning. In that photograph,

defendant had both a mustache and a goatee, as did the others

in the lineup. Oscar identified defendant’s photograph.

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Originally, the court ruled evidence of the single-

photograph showup admissible but not evidence of the

photographic lineup. At the trial under review, however, the

court ruled the evidence of the photographic lineup was also

admissible. Accordingly, the jury heard evidence of both of

Oscar’s photographic identifications.2

ii. Analysis

Defendant contends the identification procedure was

impermissibly suggestive in violation of his due process rights.

“A due process violation occurs only if the identification

procedure is ‘so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.’ ” (People

v. Cook (2007) 40 Cal.4th 1334, 1355, quoting Simmons v.

United States (1968) 390 U.S. 377, 384.) “In order to determine

whether the admission of identification evidence violates a

defendant’s right to due process of law, we consider (1) whether

the identification procedure was unduly suggestive and

unnecessary, and, if so, (2) whether the identification itself was

nevertheless reliable under the totality of the circumstances,

taking into account such factors as the opportunity of the

witness to view the suspect at the time of the offense, the

witness’s degree of attention at the time of the offense, the

accuracy of his or her prior description of the suspect, the level

of certainty demonstrated at the time of the identification, and

the lapse of time between the offense and the identification.”

2

Two days after the photographic identifications, Oscar

also identified defendant from a live lineup. But the trial court

found that lineup impermissibly suggestive because defendant

was the only person wearing striped jail pants. Accordingly,

evidence of that lineup was not admitted at any of the trials.

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(People v. Cunningham (2001) 25 Cal.4th 926, 989; see People v.

Clark (2016) 63 Cal.4th 522, 556-558.) “Against these factors is

to be weighed the corrupting effect of the suggestive

identification itself.” (Manson v. Brathwaite (1977) 432 U.S. 98,

114.)

Because there is no dispute regarding the historical facts,

we independently review the trial court’s ruling that the

identification was admissible. (People v. Kennedy (2005) 36

Cal.4th 595, 609.)

Defendant first contends that Sergeant Kroutil’s showing

Oscar a single photograph was both unnecessary and

impermissibly suggestive. We have said that such showups are

not necessarily unfair. (People v. Clark (1992) 3 Cal.4th 41,

136.) “Rather, all the circumstances must be considered.”

(Ibid.) Nevertheless, a single-photograph showup is inherently

suggestive, at least to some extent. (Manson v. Brathwaite,

supra, 432 U.S. at p. 109.) It is unclear whether the showup was

necessary in this case. At the time Oscar viewed the single

photograph, defendant was a suspect but was still at large. To

take the time to prepare a photographic spread may have

increased the risk that he might flee. On the other hand, Oscar

had already identified the killer as the man who brought him ice

cream, and Victor had already identified defendant as the man

who brought Oscar ice cream. That may have been reason

enough to arrest (or at least monitor) defendant without

conducting a photo identification beforehand. The police also

put together a photo array mere hours after the showup — and

perhaps could have done so much faster given that they arrested

(and processed) Sanchez in the meantime. Plus, unlike the

witness in Stovall v. Denno (1967) 388 U.S. 293, Oscar was not

himself on the brink of death. The issue is therefore close.

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But we need not decide whether the procedure was

necessary. Although the reliability of Oscar’s showup

identification itself presents a difficult issue, we ultimately find

that it was reliable under the totality of the circumstances. The

inherent suggestiveness of the procedure was outweighed by

other factors confirming the reliability of the identification. (See

Manson v. Brathwaite, supra, 432 U.S. at p. 116.) Sergeant

Kroutil merely showed Oscar a photograph and asked if he knew

the person. That did not explicitly suggest the answer.

Moreover, although Oscar had indicated (correctly) that the man

who gave him ice cream had a goatee, the photograph was from

a time in the past when defendant did not have a goatee. Thus,

defendant’s appearance in the photograph was different than

his appearance the day of the shooting and different than

Oscar’s description of the man he observed. If anything, the

difference in facial hair suggested the photograph was not of the

man Oscar had observed. So although Oscar — unlike the

witness in Braithwaite — was not an adult “trained police

officer” viewing a showup “at his leisure,” and “[a]lthough

identifications arising from single-photograph displays may be

viewed in general with suspicion,” we still see relatively “little

pressure on [Oscar] to acquiesce in the suggestion that such a

display entails.” (Id. at pp. 115-116)

Against this possible corrupting effect, we weigh the

factors indicating the identification was reliable. For a start, the

showup occurred mere hours after the murders. And although

Oscar probably had only a fleeting opportunity to observe the

man in the dimly lit bedroom at the time of the offense, he had

ample opportunity to observe and get to know defendant the

weekend before the Monday morning murders. It likely would

not take Oscar long in the bedroom that morning to recognize

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the man he saw as the man he had seen much of over the

weekend and who had brought him ice cream. His description

of defendant, including the goatee, was accurate. Moreover,

Oscar identified defendant even though the photograph he was

shown did not contain that goatee, thus suggesting the

identification was based on his observation rather than the

photograph matching his description.

Other circumstances support a finding of reliability. Part

of the identification was independently corroborated by none

other than defendant himself. Oscar identified defendant in two

respects: (1) as the man who brought him ice cream, and (2) as

the man he saw in the bedroom. The first of these was later

shown to be completely reliable. Defendant said the same thing

in his initial interview with police and later at trial. Moreover,

the physical evidence corroborated part of what Oscar told the

police that morning. He said that his mother grabbed the

telephone, then fell. Ermanda’s body was lying on the floor, and

the telephone handset was on the floor. The only disputed point

was Oscar’s statement that the man who brought him ice cream

was also the man in the bedroom. But Oscar said that before he

was shown the photograph. Thus, the showup could not have

influenced that statement.

In short, although the suggestive nature of the

identification does raise concerns, we find Oscar’s identification

of the single photograph as the man he saw in the bedroom

sufficiently reliable to be admissible. Defendant did not carry

his “burden of demonstrating the existence of an unreliable

identification procedure.” (People v. Cunningham, supra, 25

Cal.4th at p. 989.) We note, however, that because single-

photograph showups are inherently suggestive, they should be

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used very cautiously, and only when truly necessary. It is

generally better to use a multiple-photograph lineup.

Defendant also challenges the photographic lineup. We

have viewed it, and it was fair. Defendant’s photograph in the

lineup was different than the one Oscar had previously seen, so

Oscar did not simply reidentify the same photograph. All of the

photographs were of persons with both a goatee and a mustache.

“The question is whether anything caused defendant to ‘stand

out’ from the others in a way that would suggest the witness

should select him.” (People v. Carpenter (1997) 15 Cal.4th 312,

367.) Nothing did in this lineup. Defendant argues that the

conversation between Sergeant Dempsie and Oscar before the

viewing impermissibly suggested Oscar’s identification. “Our

review of the transcripts reveals no such suggestiveness in

[Dempsie’s] inquiries.” (People v. Avila (2009) 46 Cal.4th 680,

699.) Sergeant Dempsie asked Oscar questions about what he

had seen and then asked him whether the man he had seen was

among the pictures. He did not say that the man was in the

lineup and did not suggest which, if any, of the six photographs

Oscar should select.

Finally, defendant contends Oscar’s trial testimony was

tainted by the earlier identification procedures. At trial, Oscar

identified defendant in only two respects. First, he said

defendant had brought him ice cream, testimony that, as noted,

was entirely reliable, having been corroborated by defendant

himself. Second, although Oscar generally testified that he did

not remember the events that morning, on redirect examination

he did briefly identify defendant as the man he saw in the house.

But then Oscar reiterated that he did not remember. To the

extent this testimony can be considered a trial identification of

defendant as the perpetrator, the jury could readily consider it,

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Opinion of the Court by Chin, J.

by itself, to be unreliable. Similarly, the jury could readily

consider as equally unreliable Oscar’s additional testimony on

recross-examination that the photograph of a different person

was also of someone he had seen at the house when his mother

died.

As was apparent to the jury, Oscar’s memory was largely

corrupted by the time he testified at the third trial. But the

identification procedures the morning of the crimes did not

cause this corruption. Instead, other factors that defendant

himself identified at trial, including the passage of time, and

external events such as Oscar’s therapy, caused the corruption.

The jury was entitled to consider Oscar’s trial testimony for

what it was worth.

d. Admission of Oscar’s Hearsay Statements Made

on the Day of the Murders

Over defendant’s hearsay objections, the court admitted

evidence of Oscar’s statements the morning of the shooting to

Sergeant Dempsie (the man he saw in the bedroom had a “wisp

on his chin” and had brought him ice cream) and Sergeant

Kroutil (identifying a photograph of defendant as that man). In

a written ruling before the first trial, reiterated at the trial

under review, the court admitted the statement to Sergeant

Dempsie as a spontaneous statement under Evidence Code

section 1240. The court found that, “given the totality of the

circumstances, Oscar provided the information about the man

with a ‘wisp’ who gave him ice cream while Oscar was under the

stress of excitement and while his reflective powers were still in

abeyance.”

The court admitted the statement to Sergeant Kroutil on

three grounds: (1) as a spontaneous statement, (2) as a prior

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consistent statement under Evidence Code sections 791 and

1236, and (3) as a past recollection recorded under Evidence

Code section 1237. It noted that “the interview between Oscar

and Kroutil occurred within three hours of probably the most

stressful, shocking event I think any of us could perceive,

anyone could experience, that is, the death of a five year old’s

mother and sister.”

Defendant contends the court erred in admitting both

statements. We disagree. We review the court’s evidentiary

rulings for abuse of discretion. (People v. Cowan (2010) 50

Cal.4th 401, 462.) The court acted within its discretion in

finding the statement to Sergeant Dempsie admissible as a

spontaneous statement and in finding the statement to

Sergeant Kroutil admissible as a past recollection recorded.

Because one ground for admissibility is sufficient, we need not

consider whether the statement to Sergeant Kroutil was also

admissible on the other grounds the court cited. (See Cowan, at

p. 465.)

“Evidence Code section 1240 provides that ‘[e]vidence of a

statement is not made inadmissible by the hearsay rule if the

statement’ ‘[p]urports to narrate, describe, or explain an act,

condition, or event perceived by the declarant’ and ‘[w]as made

spontaneously while the declarant was under the stress of

excitement caused by such perception.’ ‘[T]he basis for the

circumstantial trustworthiness of spontaneous utterances is

that in the stress of nervous excitement, the reflexive faculties

may be stilled and the utterance may become the instinctive and

uninhibited expression of the speaker’s actual impressions and

belief.’ [Citation.] [¶] ‘To be admissible, “(1) there must be some

occurrence startling enough to produce . . . nervous excitement

and render the utterance spontaneous and unreflecting; (2) the

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utterance must have been before there has been time to contrive

and misrepresent, i.e., while the nervous excitement may be

supposed still to dominate and the reflective powers to be yet in

abeyance; and (3) the utterance must relate to the

circumstances of the occurrence preceding it.” ’ ” (People v.

Lynch (2010) 50 Cal.4th 693, 751-752.)

The first and third of these requirements are clearly met.

What occurred, the deaths of his mother and sister, was

certainly startling, and Oscar’s statements related to the

circumstances of that occurrence. Defendant contends the

second requirement is not met because Oscar had time to

contrive and misrepresent. “Because the second admissibility

requirement, i.e., that the statement was made before there was

‘ “time to contrive and misrepresent,” ’ ‘relates to the peculiar

facts of the individual case more than the first or third does

[citations], the discretion of the trial court is at its broadest

when it determines whether this requirement is met.’ ” (People

v. Lynch, supra, 50 Cal.4th at p. 752.)

“A number of factors may inform the court’s inquiry as to

whether the statement in question was made while the

declarant was still under the stress and excitement of the

startling event and before there was ‘time to contrive and

misrepresent.’ [Citation.] Such factors include the passage of

time between the startling event and the statement, whether

the declarant blurted out the statement or made it in response

to questioning, the declarant’s emotional state and physical

condition at the time of making the statement, and whether the

content of the statement suggested an opportunity for reflection

and fabrication. [Citations.] This court has observed, however,

that these factors ‘may be important, but solely as an indicator

of the mental state of the declarant.’ [Citation.] For this reason,

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no one factor or combination of factors is dispositive.” (People v.

Merriman (2014) 60 Cal.4th 1, 64.)

We see no abuse of discretion. When the court made its

final ruling, it had presided over a detailed evidentiary ruling

and two previous trials. It knew the facts thoroughly. The most

important factor here was that, as the court noted, the

underlying event was truly startling, especially for a five year

old. The court could reasonably conclude it would take a long

time for the child to regain his reflective powers after what he

saw and experienced. Sergeant Dempsie spoke with Oscar

within about an hour and a half of that event. He testified that

during the interview, Oscar was emotional and was crying part

of the time. Given the circumstances, Sergeant Dempsie’s

testimony was credible. The trial court could readily conclude

that Oscar had not by then had time to contrive or misrepresent,

or to reflect or fabricate.

As defendant notes, Detective Lewis testified that when

he spoke with Oscar earlier that morning, Oscar seemed calm.

However, Oscar also soon became nonresponsive in that

interview. He could well have been in shock, then later reacted

emotionally. The trial court could reasonably find that Oscar

was under the stress of the earlier events on both occasions.

Defendant also argues that Oscar might have heard discussion

from others in the Chandi house suggesting defendant was the

perpetrator. But there was no evidence that anyone suggested

that the man who brought Oscar ice cream was the perpetrator.

Oscar said that himself. In any event, whether or not there

might have been discussion in the Chandi house, the court acted

within its discretion when it found Oscar was still under the

stress of the earlier events when he made the statement.

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The court also acted within its discretion when it found

the statement to Sergeant Kroutil admissible as a past

recollection recorded. “Evidence Code section 1237 permits

evidence of a witness’s past statement ‘if the statement would

have been admissible if made by him while testifying, the

statement concerns a matter as to which the witness has

insufficient present recollection to enable him to testify fully and

accurately, and the statement is contained in a writing which:

[¶] (1) [w]as made at a time when the fact recorded in the writing

actually occurred or was fresh in the witness’[s] memory; [¶] (2)

[w]as made . . . (ii) by some other person for the purpose of

recording the witness’[s] statement at the time it was made; [¶]

(3) [i]s offered after the witness testifies that the statement he

made was a true statement of such fact; and [¶] (4) [i]s offered

after the writing is authenticated as an accurate record of the

statement.’ (Evid. Code, § 1237, subd. (a).)” (People v. Cowan,

supra, 50 Cal.4th at p. 465.)

At trial, Oscar certainly had “insufficient present

recollection to enable him to testify fully and accurately” about

the matter. (Evid. Code, § 1237, subd. (a).) Defendant contends

instead that he had too little recollection at trial. Citing People

v. Simmons (1981) 123 Cal.App.3d 677, he argues that the third

requirement — that the witness testifies the statement was

true — is lacking. In Simmons, after the witness had made the

statement in question, he suffered a head injury causing

amnesia. At trial, he could not remember making the statement

or whether it was true. All he could say was that he had no

reason not to tell the truth. The Court of Appeal held that was

insufficient to satisfy the statutory requirements. As it noted,

“the witness did not, and was unable to, attest to the accuracy

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of the matters contained in his previous statement.” (Id. at p.

682.)

This case is different than People v. Simmons, supra, 123

Cal.App.3d 677. Like the witness in Simmons, Oscar did not

remember the statements. But, unlike the witness in Simmons,

he testified that he remembered talking with the police and,

critically, he remembered that he told them the truth.

In People v. Cowan, supra, 50 Cal.4th 401, the witness

testified that he had told the truth regarding the statement in

question “to the best of his ability,” although he admitted that

his memory had been “ ‘jumbled’ and ‘scrambled’ because of”

drug use. (Id. at p. 466.) We found this testimony sufficient to

admit the prior statement. We explained that “ ‘whether an

adequate foundation for admission’ of a statement under

Evidence Code section 1237 has been established turns on

whether the declarant’s ‘testimony that [the] statement was

true was reliable,’ and the trial court who hears the declarant’s

testimony has ‘the best opportunity’ to assess its credibility.”

(Id. at p. 467.) We concluded that, “[u]nder the circumstances,

we cannot say that the trial court abused its discretion in

determining the statement was sufficiently reliable to be

admitted under [Evidence Code] section 1237.” (Ibid.)

Similarly, we find no abuse of discretion in finding Oscar’s

testimony that he told the truth sufficiently reliable to admit the

evidence. That Oscar remembered telling the truth was quite

credible even though he could not remember what he said. The

court or jury could reasonably find that a child would normally

tell the truth in that situation and could remember that he did

so even though he remembered little else.

Defendant also argues that, because Oscar remembered

little about the events when he testified, admitting the prior

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statements violated his constitutional rights to confront and

cross-examine witnesses. However, as the United States

Supreme Court has stated, “when the declarant appears for

cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.”

(Crawford v. Washington (2004) 541 U.S. 36, 59-60, fn. 9.) This

is true even if the witness cannot recall the statement.

“Defendant contends there can be no constitutionally effective

cross-examination when the witness cannot recall the facts

related in the hearsay statement. [Citations.] But the high

court has squarely rejected that contention, concluding that

‘when a hearsay declarant is present at trial and subject to

unrestricted cross-examination,’ ‘the traditional protections of

the oath, cross-examination, and opportunity for the jury to

observe the witness’[s] demeanor satisfy the constitutional

requirements,’ notwithstanding the witness’s claimed memory

loss about the facts related in the hearsay statement. (United

States v. Owens (1988) 484 U.S. 554, 559-560.) Nothing in

Crawford casts doubt on the continuing vitality of Owens.”

(People v. Cowan, supra, 50 Cal.4th at p. 468; see People v.

Rodriguez (2014) 58 Cal.4th 587, 632-633 [similar].)

Defendant was permitted to cross-examine Oscar, and the

jury could observe his demeanor. Importantly, defendant was

also able to cross-examine other witnesses, present evidence

about the circumstances under which Oscar made the

statements, and present any other evidence relevant to the

credibility of those statements. This was sufficient to satisfy

defendant’s confrontation rights.

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e. Restrictions on Defendant’s Presentation of

Evidence To Impeach Oscar’s Credibility

Defendant sought to challenge Oscar’s credibility by

presenting evidence of his prior statements and some of his

testimony at previous trials. The court admitted some of the

statements and testimony but not all. Given Oscar’s testimony

that he could remember little of the events of August 4, 1997,

which the court found not to be evasive, the court generally

found that the statements it excluded were not inconsistent with

his trial testimony and, additionally, were not admissible as

past recollections recorded. Defendant contends the court erred

by excluding those statements.

We need not review in detail the court’s many rulings,

because even if we assume the court erred under California law

in excluding any or all of the proffered statements, the error was

harmless and was not so severe as to violate defendant’s federal

constitutional right to confront the witnesses against him.

The court permitted defendant to admit the following

statements over the prosecutor’s hearsay objections. On cross-

examination of Oscar, defense counsel elicited that in an earlier

trial, he said, “[N]o” when asked whether the “person in the

courtroom today [is] the person who came in,” and he shook his

head when asked if he saw the person “here today.”

Defense counsel elicited testimony from prosecution

witness Camarino Reyes that around August 10, 1997, Oscar

told him “that he saw a big man.”

Oscar’s biological father, Jose H., testified that after

August 20, 1997, he took Oscar to his home in Idaho. Oscar told

Jose H. that his mother would come back for him and that she

would talk to him. About two or three weeks after August 20,

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1997, Oscar also told Jose H. that three men were in the house

the night his mother died. Oscar gave his father three names of

the men, only two of which the father remembered. Oscar gave

the names of “Juan” and either “Marcos” or “Michael.”

Lola Ortiz testified that a few days after the shooting,

Oscar gave her the names of the persons he saw in the house the

night his mother died. He said “Juan” was there, as well as a

man who was Ermanda’s mechanic and a friend of Lorena’s

called “Big Man.” At one point, Oscar told Ortiz that “Domingo”

had been there.

Additionally, the jury viewed the videotape of Sergeant

Dempsie’s second interview with Oscar the day of the shooting,

in which Oscar identified defendant’s photograph from a lineup

but also said he saw two men named Juan and Michael in the

room.

The trial court also admitted testimony from Oscar’s

therapist making clear that Oscar had long been mired in a

“fantasy-reality tug of war.” For example, she described a

session where Oscar said that his mom was under the couch and

talking to him — and another session where Oscar said that his

mom had not been murdered but instead cut herself with a

knife.

Defendant argues that the court erroneously excluded

other items of evidence that had been admitted at previous

trials. He also argues that because the previous trials had

resulted in the jury being unable to reach a verdict, the different

rulings at the third trial were prejudicial.

In addition to Oscar’s statements that his father testified

about at this trial, Jose H. had also testified at an earlier trial

that a few weeks after the crimes, Oscar also told him the

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following: Three men had entered the house the night of the

crimes, cut the telephone cord, and manhandled Lorena and

Ermanda. The men gave them beer, and soon Lorena was “face

up” with two men while the third was with Ermanda. They

heard firecrackers, and his mother hid him under the bed.

Oscar ran to where the blood was and started to move his

mother. His sister was in a room, and his mother was running

all over. Jose H. also testified that Oscar no longer told him that

any of these men had brought him ice cream.

The trial court also excluded at the instant trial

statements that Oscar made to two investigators in Idaho three

months after the shooting in which he went into lurid details

about what he saw the morning of the shooting that were, as

defendant puts it in his brief, not corroborated and “contradicted

by the evidence and common sense.” Specifically, Oscar said

that a person he had seen with a gun got a hammer and hit him

in the stomach and back and pulled his shirt. The man ran

around and broke everything including a clock and toys. Oscar

said he hid under the bed. He also said he was tied up with a

rope, and the man gave him medicine to drink, but Oscar did not

drink it. Oscar said the man broke a window, hit a door with

the hammer, hit his sister on the head and stomach, and there

was blood on the man’s hat and hands.

Defendant also sought unsuccessfully to present

additional statements from Oscar’s prior testimony.

In light of the evidence of Oscar’s statements that the

court did admit at the third trial, as well as his actual trial

testimony — in which he remembered little and identified a

photograph of a man other than defendant as having been in the

house that morning — and the other evidence defendant

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presented challenging Oscar’s credibility, the jury knew that, by

the time he testified, more than two years after the shooting,

Oscar’s memory had been largely corrupted. The jury knew that

Oscar’s trial identification of defendant, which he quickly

changed to say he did not remember, and his identification at

trial of the photograph of a different man, were, by themselves,

not reliable. Admission of the additional statements and more

of his prior testimony would not have significantly added to the

picture the jury already had concerning Oscar’s testimony.

The real credibility issue for the jury to resolve was the

reliability of Oscar’s statements and identifications on the

morning of August 4, 1997. Indeed, the credibility question was

even narrower than that. It was undisputed, and corroborated

by defendant himself, that Oscar correctly identified defendant

as the man who had brought him ice cream. The only disputed

question was the accuracy of Oscar’s statement to Sergeant

Dempsie that the man who brought him ice cream (i.e.,

defendant) was also the man he saw in the bedroom. Defendant

was permitted to present all the evidence he wished concerning

the statements of August 4, 1997, and the surrounding

circumstances, including what occurred in the Chandi house

that morning.

The jury knew from the evidence actually presented that,

very soon after his initial statement, Oscar began adding new

details that were inconsistent and incredible. Defendant

presented much evidence, including expert testimony, that

accounted for this. Some of Oscar’s statements that were

admitted at earlier trials but excluded from this one were

perhaps more lurid and incredible than the admitted

statements. But under all of the circumstances, excluding those

statements was not prejudicial. What was important, and what

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became obvious to the jury, was that Oscar’s memory was

quickly corrupted by the many factors defendant identified at

trial. Further evidence on that score would have done little to

undermine the credibility of Oscar’s initial statement

implicating defendant, which he made very soon after the

incident and which was largely corroborated by defendant

himself and the positioning of the bodies. Because Oscar had

learned in the interim that defendant was named Juan, we also

see little significance in the fact that, in later statements to his

father, Oscar simply used defendant’s name and no longer

referred to him as the man who brought him ice cream.

For these reasons, to the extent any error was of state law,

we would find it harmless because it is not reasonably probable

the result would have been more favorable to defendant had the

excluded evidence been admitted. (People v. Merriman, supra,

60 Cal.4th at p. 69.) Defendant also contends the rulings

violated his federal constitutional rights, including the right to

confront witnesses. To establish a violation of his right of

confrontation, defendant must show that the excluded evidence

“would have produced ‘a significantly different impression of

[the witness’s] credibility.’ ” (People v. Frye (1998) 18 Cal.4th

894, 946, quoting Delaware v. Van Arsdall (1986) 475 U.S. 673,

680.) On this record, we cannot say that he has made that

showing. Nor can defendant show that the rulings made the

trial fundamentally unfair. (Merriman, at p. 70.)

f. Restricting the Testimony of a Defense Expert

Witness

As part of his effort to challenge Oscar’s credibility,

defendant called Dr. Susan Streeter to provide expert testimony

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on the reliability of child witnesses. Defendant contends the

court erroneously restricted the scope of her testimony.

Before Dr. Streeter testified, the prosecutor objected to

any testimony expressing her opinion of Oscar himself. Citing

People v. Page (1991) 2 Cal.App.4th 161, the court ruled that Dr.

Streeter could testify about factors that could affect a child’s

credibility, but she could not give an opinion regarding Oscar’s

own credibility. Specifically, the court ruled that “Doctor

Streeter is certainly qualified and may testify about Oscar’s

developmental stage and the general principles that apply to a

child of that age insofar as reliability is concerned. . . . If she

has an opinion generally as to children of that developmental

age as to reliability, she may discuss those principles. . . . She

may state the general principles involved as to a child of that

developmental age, but beyond that, there’s ample evidence

before the jury to make that determination, and the proffered

expert testimony would not be admissible.” The court also

prohibited Dr. Streeter from citing hearsay evidence that would

have supported her opinion regarding Oscar’s credibility.

Defendant contends the court erred in restricting Dr.

Streeter’s testimony in this way. It did not. “When expert

opinion is offered, much must be left to the trial court’s

discretion.” (People v. Carpenter, supra, 15 Cal.4th at p. 403.)

We see no abuse of discretion. In People v. Page, supra, 2

Cal.App.4th 161, the case the trial court cited, an expert

testified about factors that could cause a false confession. The

Court of Appeal held that the trial court acted properly in not

additionally permitting the expert “to discuss the particular

evidence in this case or to give his opinion regarding the overall

reliability of the confession.” (Id. at p. 188.) It was for the jury,

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not an expert, to determine the reliability of the actual

confession. (Id. at pp. 187-189.)

Similarly, the trial court properly permitted Dr. Streeter

to testify about factors the jury should consider in judging

Oscar’s credibility and the reliability of his statements of August

4, 1997, and then leaving it to the jury to apply that testimony

to the actual facts. “The general rule is that an expert may not

give an opinion whether a witness is telling the truth, for the

determination of credibility is not a subject sufficiently beyond

common experience that the expert’s opinion would assist the

trier of fact; in other words, the jury generally is as well

equipped as the expert to discern whether a witness is being

truthful.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1,

82; see People v. Smith (2003) 30 Cal.4th 581, 628 [similar];

People v. Sergill (1982) 138 Cal.App.3d 34, 39 [abuse of

discretion to admit expert opinion that a witness was credible].)

The jury heard Dr. Streeter’s testimony, it heard Oscar’s

testimony and could observe his demeanor, and it heard the

remaining testimony relevant to his credibility. It was fully

qualified to judge for itself, without additional expert help, the

credibility and reliability of Oscar’s testimony and his

statements of August 4, 1997.

Contrary to defendant’s additional argument, because the

trial court properly prohibited Dr. Streeter from giving an

opinion regarding Oscar’s actual credibility, it also properly

prohibited her from citing hearsay evidence to support that

prohibited opinion. We see no error.

2. Admission of Defendant’s Confession

Defendant argues that the court should have excluded his

confession on two grounds: (1) it was tainted by a violation of

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the rules of Miranda v. Arizona, supra, 384 U.S. 436, during the

August 5, 1997, interview between Detective Shear and

defendant; and (2) it was involuntary.

a. Factual Background

Before the first trial, defendant moved to exclude his

confession, and the court presided over an evidentiary hearing

concerning the interviews between defendant and police

culminating in his confession. The testimony at the hearing was

generally consistent with the evidence later presented at trial,

except that it contained some testimony relevant to the

suppression motion not presented at trial. We will focus on the

testimony relevant to defendant’s arguments.

The August 5, 1997, interview between Detective Shear

and defendant was recorded; the court listened to critical

portions of the recording. The purpose of the interview was for

the detective to give defendant a “voice stress analyzer” test.

Defendant had agreed to submit to questioning to prepare for

the test and then to take the test itself. Detective Shear testified

that the first part of the interview was “a preinterview for the

purpose of preparing the questions for the examination.” At the

outset of the interview, he reminded defendant of the Miranda

rights that he had previously waived. He said, “All those rights

still apply to you, Juan. You have the right to remain silent, you

don’t have to talk to us, you don’t have to submit to this test, you

have the right to talk to an attorney and everything.” He added,

“You know that you don’t have to talk to me? You don’t have to.

You can say I don’t want to talk to you. I don’t want to take this

test. I don’t want to talk to you. Do you want to talk to me?

Will you answer questions for me?” Defendant responded, “Yes,

why not?”

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Later in the interview came an exchange during which

defendant contends he invoked his right to remain silent. After

listening to the tape, the court found the following occurred.

Defendant said, “I want you to put the machine, sir.” Detective

Shear said, “Beg your pardon?” Defendant said, “I want you to

put the machine on me.” Detective Shear responded, “Yeah, I

know.” Defendant said, “I’m not going to say nothing more. I

told you the truth. That’s the truth.” Detective Shear asked,

“Now you just want to take the test?” Defendant responded,

“Yes.” Detective Shear continued asking defendant questions

about the case and eventually administered the test.3

Defendant still denied involvement in the murders.

As at trial, defendant testified that the police repeatedly

threatened him and ignored his requests to have an attorney,

testimony the officers denied.

The court denied defendant’s suppression motion in a

written ruling. It found not credible defendant’s testimony that

he had been threatened and had repeatedly requested counsel;

it found credible the officers’ contrary testimony. It also found

that defendant had not been coerced. After quoting the colloquy

that defendant contended constituted an invocation of the right

to silence, the court stated, “Considering the content of the

exchange and the surrounding circumstances, the court does not

find Mr. Sanchez invoked his right to terminate questioning.”

In a separate ruling, the court also found that the investigators

never advised defendant of his consular rights under the Vienna

3

At defendant’s request, the court ordered that the test

itself not be mentioned at trial.

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Convention on Consular Relations, but that the failure to do so

did not require suppression of the confession.

b. Analysis

When reviewing a ruling admitting a confession, we accept

the trial court’s resolution of any factual dispute to the extent

the record supports it, but otherwise we determine

independently whether the confession was taken in violation of

the rules of Miranda v. Arizona, supra, 384 U.S. 436, or was

involuntary. (People v. Duff (2014) 58 Cal.4th 527, 551.) On

both questions, the People bear the burden of proof by a

preponderance of the evidence. (Ibid.) Here, defendant and the

officers provided sharply differing testimony of what occurred.

The court resolved this factual dispute by finding the officers

credible and defendant not credible. The record, including the

taped statements themselves, supports the court’s credibility

determination, and we accept it. (People v. Dykes (2009) 46

Cal.4th 731, 751.) Accordingly, we will consider the taped

statements and the officers’ testimony, but not defendant’s

contrary testimony, to determine independently whether the

confession was admissible.

Defendant contends he invoked his right to remain silent

when he told Detective Shear during the August 5, 1997,

interview, “I’m not going to say nothing more. I told you the

truth. That’s the truth.” If a defendant invokes his Miranda

rights, questioning must cease. (People v. Gonzalez (2005) 34

Cal.4th 1111, 1122.) However, when, as in this case, a

defendant has waived his Miranda rights and agreed to talk

with police, any subsequent invocation of the right to counsel or

the right to remain silent must be unequivocal and

unambiguous. (Berghuis v. Thompkins (2010) 560 U.S. 370,

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381-382 [right to remain silent]; Davis v. United States (1994)

512 U.S. 452, 461-462 [right to an attorney].) “The question

whether a suspect has waived the right to counsel with

sufficient clarity prior to the commencement of interrogation is

a separate inquiry from the question whether, subsequent to a

valid waiver, he or she effectively has invoked the right to

counsel. [Citations.] It is settled that in the latter circumstance,

after a knowing and voluntary waiver, interrogation may

proceed ‘until and unless the suspect clearly requests an

attorney.’ (Davis v. United States [, supra,] 512 U.S. [at p.] 461,

italics added.) Indeed, officers may, but are not required to, seek

clarification of ambiguous responses before continuing

substantive interrogation. (Id. at p. 459.)” (People v. Williams

(2010) 49 Cal.4th 405, 427.) The same rules apply to an

invocation of the right to silence as apply to the invocation of the

right to counsel. (Berghuis v. Thompkins, at p. 381; Williams,

at pp. 433-434.)

“[T]he question of ambiguity in an asserted invocation

must include a consideration of the communicative aspect of the

invocation — what would a listener understand to be the

defendant’s meaning. The high court has explained — in the

context of a postwaiver invocation — that this is an objective

inquiry, identifying as ambiguous or equivocal those responses

that ‘a reasonable officer in light of the circumstances would

have understood [to signify] only that the suspect might be

invoking the right to counsel.’ . . . [¶] In certain situations,

words that would be plain if taken literally actually may be

equivocal under an objective standard, in the sense that in

context it would not be clear to the reasonable listener what the

defendant intends.” (People v. Williams, supra, 49 Cal.4th at pp.

428-429.) “A defendant has not invoked his or her right to

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silence when the defendant’s statements were merely

expressions of passing frustration or animosity toward the

officers, or amounted only to a refusal to discuss a particular

subject covered by the questioning.” (People v. Rundle (2008) 43

Cal.4th 76, 115.)

In context, defendant’s statement, “I’m not going to say

nothing more,” was not an unambiguous invocation of his right

to remain silent. Instead, the statement showed impatience to

take the voice stress analyzer test. Other than the one

statement, defendant was cooperative during that interview and

always willing to talk. We agree with the trial court’s analysis:

“In context, Mr. Sanchez was not seeking to terminate the

interview. Shear had explained to Mr. Sanchez the voice stress

test was like a lie detector and would determine whether Mr.

Sanchez was telling the truth when he denied involvement in

the deaths of his friends. At the point of dispute, Mr. Sanchez

did not state he wanted to be silent. He did not indicate a refusal

to talk about the case. By implication, he indicated impatience

with Shear’s pretest interrogation and clearly stated he wanted

to proceed to the test portion of the interview. Mr. Sanchez’s

insistence that Shear proceed with testing him by the ‘machine’

does not equate to an invocation of his right of silence.”

Contrary to defendant’s additional arguments, nothing

else in the interview between Detective Shear and defendant

supports the conclusion that he invoked his right to silence.

Because we find that defendant did not unequivocally invoke his

right to silence, we need not consider the Attorney General’s

further argument that any Miranda violation on August 5

(when defendant continued to deny guilt) did not taint his

confession the next day, which was preceded by another waiver

of his rights.

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Defendant also contends his confession was involuntary.

He “is of course correct that ‘[a]n involuntary confession may not

be introduced into evidence at trial.’ ” (People v. Spencer (2018)

5 Cal.5th 642, 672.) “ ‘A statement is involuntary if it is not the

product of “ ‘a rational intellect and free will.’ ” (Mincey v.

Arizona (1978) 437 U.S. 385, 398.) The test for determining

whether a confession is voluntary is whether the defendant’s

“will was overborne at the time he confessed.” ’ ” (People v.

McWhorter (2009) 47 Cal.4th 318, 346-347.) “In assessing

whether statements were the product of free will or coercion, we

consider the totality of the circumstances, including ‘ “ ‘the

crucial element of police coercion,’ ” ’ the length, location, and

continuity of the interrogation, and the defendant’s maturity,

education, and physical and mental health.” (People v. Duff,

supra, 58 Cal.4th at pp. 555-556.) Police coercion is, indeed,

crucial. To be considered involuntary, a confession must result

from coercive state activity. (Colorado v. Connelly (1986) 479

U.S. 157, 165; People v. Smith (2007) 40 Cal. 4th 483, 502.)

Defendant’s testimony would have supported a finding

that his confession was coerced. But, as noted, the trial court

discredited that testimony in favor of the officers’ testimony that

they did not threaten or coerce him. We accept that credibility

finding. Except for defendant’s testimony, there was no

evidence of police coercion. Although there were multiple

interrogations, none was particularly lengthy, and they were

spread out over three days. He ultimately confessed about 20 to

30 minutes into an interview that began after he had eaten

lunch. Because there was no police coercion, defendant

confession was not involuntary.

As defendant notes, the police did not notify him of his

consular rights under article 36 of the Vienna Convention on

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Consular Relations. Defendant is a Mexican national, although

it appears that at the time of his arrest, he had lived in this

country longer than he lived in Mexico. However, “the United

States Supreme Court made it clear that an officer’s failure to

notify a suspect of his or her consular rights does not, in itself,

render a confession inadmissible.” (People v. Enraca (2012) 53

Cal.4th 735, 756, citing Sanchez-Llamas v. Oregon (2006) 548

U.S. 331.) Instead, “[a] defendant can raise an Article 36 claim

as part of a broader challenge to the voluntariness of his

statements to police.” (Sanchez-Llamas, at p. 350.) Defendant

has done so. But nothing about the failure to notify defendant

of this right coerced him into confessing. “As the Sanchez-

Llamas court noted, article 36 ‘secures only a right of foreign

nationals to have their consulate informed of their arrest or

detention — not to have . . . law enforcement authorities cease

their investigation pending any such notice or intervention.’

(Sanchez-Llamas, supra, 548 U.S. at p. 349.)” (Enraca, at p.

758.) We have no basis on which to find the confession

involuntary.

For these reasons, we uphold the trial court’s ruling

admitting the confession.

3. Admission of Evidence of Defendant’s Sexual

Relationship with a Witness

Over objection, the trial court admitted evidence that

defendant and prosecution witness Hernandez had had a sexual

relationship. Defendant contends the court erred.

a. Factual Background

During Detective Shear’s testimony, the prosecutor sought

to admit evidence of Hernandez’s sexual relationship with

defendant. He argued it was relevant: (1) to defendant’s

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veracity in his interview with Detective Shear, when he said

differing things regarding his relationship with Hernandez; and

(2) to Hernandez’s credibility, particularly his credibility when

he denied seeing defendant the morning of the murders. The

court deferred a ruling pending further evidence, and the

proffered testimony was not presented at that time. Later, the

prosecutor again sought to present the evidence. Defendant

objected to the evidence as unduly prejudicial.

The court ruled the evidence admissible: “There is

certainly a legitimate concern about potential undue prejudice,

and I recognize that. However, I agree that . . . the veracity of

Mr. Hernandez is a critical issue in this case. It certainly makes

a great deal of difference whether or not Mr. Sanchez’s wife, who

has provided an alibi that he was asleep at the time the murders

occurred, whether or not that is true, or whether or not he was

active and about in the community of Porterville at or about the

time of the homicide. There are also other reasonable inferences

that can be drawn depending upon what the fact finder finds to

be the situation. There is a material difference between a

friendship, even a close friendship, and an intimate

relationship, particularly an intimate relationship wherein the

person whose veracity is at issue has expressed love for the

principal at issue.” The court found the probative value of the

evidence outweighed any potential for prejudice.

Thus, the court permitted testimony from Hernandez

regarding his sexual relationship with defendant (see pt. I.A.2,

ante), and cross-examination of defendant regarding that

relationship and statements he made about it to Detective Shear

and Sergeant Garay. (See also pt. II.A.5, post [concerning a

related contention].) Defendant admitted in court that he had

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had a sexual relationship with Hernandez but denied that it

lasted five years, as Hernandez had testified.

At defendant’s request, the court agreed to give the jury a

limiting instruction, and it did so on three occasions. The first

occurred at the beginning of Hernandez’s testimony regarding

the relationship. The court admonished: “This evidence is being

introduced for the purpose of showing, if it does, that Mr.

Sanchez and Mr. Hernandez were engaged in a consensual

sexual relationship and on more than one occasion. This

evidence . . . is admitted for a limited purpose. It may be used

to judge the credibility and believability of Mr. Hernandez when

he denied seeing Juan Sanchez on August the 4th, 1977 [sic], at

about five o’clock in the morning. It may be used to evaluate the

truthfulness of Mr. Sanchez’s statements to Detective Shear

relating to his relationship with Mr. Hernandez, and it may be

used in considering the credibility and believability of Mr.

Sanchez’s testimony at trial. It absolutely is not being

introduced for any other purpose unless I direct you otherwise.”

The court added, “Obviously, consensual adult sexual

relationships are not illegal in our society. As a matter of fact,

there are constitutional protections in place that recognize

that.” It instructed that if any juror could not accept the limiting

instruction, the juror should so inform the bailiff. No juror did

so.

During a break in the testimony, outside the jury’s

presence, defense counsel requested the court also to tell the

jury that the evidence could not be considered to show a

propensity to commit the charged crimes. The court stated that

it had “intentionally left it out because sexual relationships

between two adults is not bad character. That’s why instead of

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saying bad character and . . . giving it a negative connotation, I

gave it a positive connotation by reminding the jurors that it’s

constitutionally protected.” The court added that the evidence

did have some probative value because it “suggests that Mr.

Sanchez is not averse to sodomy.” But the court offered to give

a more complete admonition during jury instructions. The

prosecutor also noted that the court had erroneously stated the

year 1977 instead of 1997. But everyone agreed the mistake

could not have confused the jury.

The second admonition came during cross-examination of

defendant. The court again explained that “there was evidence

introduced yesterday again on the consensual sexual

relationship between Mr. Sanchez and Hector Hernandez. I just

want to remind you I’ve already given you a limited instruction

on the use of that evidence, and I just want to remind you at this

point again that it is being offered for a limited purpose of,

among other — excuse me, the limited purpose of judging the

credibility of Mr. Hector Hernandez. It may be used in

considering the truthfulness of Mr. Sanchez’s testimony in

court. It may be used to consider the truthfulness of Mr.

Sanchez’s testimony relating to his whereabouts on the morning

in question, and as I believe I already mentioned, it may be used

in judging Mr. Sanchez’s credibility. It is admitted for those

limited purposes.” A short time later, the court added, “And I

think this goes without saying, that you’re not permitted to

consider that evidence for any other purpose than one that the

court has instructed you may consider, and you will get a formal

jury instruction on this at the time of jury instructions.”

The third admonition came as part of the jury instructions

after the evidence had been presented. The court stated:

“Evidence has been introduced for the purpose of showing, if it

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does, that the defendant and Hector Hernandez were engaged

in a consensual sexual relationship. Such evidence, if believed,

may not be considered by you to prove that Mr. Sanchez is a

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

crimes, including the crimes for which he is now charged. Such

evidence, if believed, may be considered by you only for the

limited purpose of determining if it tends to show the

following: . . . The credibility/believability of Mr. Hector

Hernandez when he denied seeing Juan Sanchez on August the

4th, 1997, at or about five o’clock in the morning; the

credibility/believability of Juan Sanchez’s statements to police

officers and his testimony at trial. For the limited purpose for

which you may consider this evidence, you must weigh it in the

same manner as you do all other evidence in the case. You are

not permitted to consider this evidence for any other purpose.”

b. Analysis

Defendant contends the court erred in admitting the

evidence because it was irrelevant and, even if relevant, it

should have been excluded as unduly prejudicial under Evidence

Code section 352. “The trial court enjoys broad discretion in

determining the relevance of evidence and in assessing whether

concerns of undue prejudice, confusion, or consumption of time

substantially outweigh the probative value of particular

evidence.” (People v. Clark, supra, 63 Cal.4th at p. 572.) We see

no abuse of discretion. The court carefully exercised its

discretion. Its ruling was not arbitrary, capricious, or absurd.

(Ibid.)

“ ‘Relevant evidence’ means evidence, including evidence

relevant to the credibility of a witness or hearsay declarant,

having any tendency in reason to prove or disprove any disputed

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fact that is of consequence to the determination of the action.”

(Evid. Code, § 210, italics added.) If relevant, a court has

discretion to admit evidence of a sexual relationship. (People v.

Holloway (2004) 33 Cal.4th 96, 132-134 [evidence admitted at

the defendant’s request over the prosecution’s objection with a

limiting instruction].)

Here, as indicated in the trial court’s ruling, although the

evidence was somewhat relevant to judging the credibility of

defendant’s denial of guilt in the interview with Detective Shear

and his trial testimony, it was primarily admitted on the

question of Hernandez’s credibility. Defendant presented an

alibi that he was asleep in his bed between around 4:30 and 6:30

to 7:00 a.m. the morning of the murders. Hernandez testified

that, the night before, he had asked defendant to give him a ride

to work that morning. Defendant was supposed to come to

Hernandez’s home around 6:00 a.m. Evidence, including

testimony from Hernandez’s brother, showed that Hernandez

called his brother for a ride just after 5:30 a.m. because he feared

defendant would not come. Calling him that early would be odd

if Hernandez had no reason at 5:30 a.m. to believe defendant

would not arrive by 6:00 a.m. Margarita Ruiz testified that

Hernandez told her that defendant had been at his house at 5:00

a.m. that morning. If so, that would disprove defendant’s alibi,

something obviously of consequence to determining his guilt. It

would also place defendant within about a three-minute drive of

the crime scene shortly before the murders, and it would show

that defendant did not give Hernandez the promised ride to

work but instead was doing something else during the time the

crime was committed. Hernandez denied seeing defendant that

morning. As the trial court explained in exercising its

discretion, whether this denial was credible was an important

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question at trial. That Hernandez had a sexual relationship

with and loved defendant showed possible bias and was

probative of his credibility.

Moreover, the court gave pointed and emphatic limiting

instructions not once, but three times during the trial. “We

presume the jury understood and followed the instruction.”

(People v. Homick (2012) 55 Cal.4th 816, 873.) Defendant

contends the limiting instructions were inadequate, and the

court should instead have given a slightly different instruction

that his attorney suggested. We disagree. The instructions

were precise and carefully limited the jury’s consideration of the

evidence to its proper sphere. We see no error.

4. Admission of Evidence That Defendant Possessed a

Firearm

Over defendant’s objection, the court admitted evidence

that he possessed a firearm around the time of the murders.

Defendant contends the court erred. Preliminarily, the Attorney

General argues defendant forfeited any argument as to

Catherine Barrera’s testimony because he did not object to it at

the third trial. However, defendant did object to the testimony

at the first two trials. Before the third trial, the court stated

that it was reiterating its rulings made during the first two

trials. Under the circumstances, defendant’s previous two

objections were sufficient to preserve the contention.

Turning to the merits, we see no error. Defendant invokes

the rule, established in People v. Riser (1956) 47 Cal.2d 566, 577,

and reiterated in People v. Barnwell (2007) 41 Cal.4th 1038,

1056, that it is generally error to admit evidence that the

defendant possessed a weapon that could not have been the one

used in the charged crime. That rule does not apply here. Here,

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the murder weapon was never found, but the evidence showed

it was likely a nine-millimeter firearm. The firearm the

witnesses testified about could easily have been the one used in

the murders. “Although the witnesses did not establish the gun

necessarily was the murder weapon, it might have been. Unlike

People v. Riser, supra, 47 Cal.2d at page 577, this evidence did

not merely show that defendant was a person who possesses

guns, but showed he possessed a gun that might have been the

murder weapon . . . . The evidence was thus relevant and

admissible as circumstantial evidence that he committed the

charged offenses.” (People v. Carpenter (1999) 21 Cal.4th 1016,

1052; see People v. Cox (2003) 30 Cal.4th 916, 956 [similar].)

Evidence that shortly before the murders defendant

possessed a firearm that could have been the murder weapon

was similarly relevant and admissible as circumstantial

evidence that he committed the murders. Contrary to

defendant’s additional argument, we see no abuse of discretion

in not excluding the evidence as unduly prejudicial under

Evidence Code section 352.

5. Cross-examination of Defendant

Defendant contends the court erred in permitting certain

cross-examination when he testified.

a. Factual Background

At one point in the interview between defendant and

Sergeant Garay, after confessing to shooting the victims,

defendant said, “I don’t want to talk anymore, Garay. No more.

But I can help you.” At a pretrial hearing, the trial court ruled

that this statement was an invocation of defendant’s right to

silence, and it ordered the prosecution not to present in its case-

in-chief evidence of any later statements.

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During his cross-examination of defendant, the prosecutor

informed the court outside the jury’s presence that, to impeach

defendant’s credibility, he wanted to question defendant about

statements he made to Sergeant Garay after he invoked his

right to silence regarding his relationship with Hernandez. The

prosecutor argued that defendant “lied to Garay, and he did so

after, the date after admitting, and he goes back to lying. Lying

seems to be the most comfortable communication for him and

that’s what I’m seeking to demonstrate for the jury.” The court

asked how the statements were inconsistent with defendant’s

trial testimony. The prosecutor responded: “It’s not a

consistency. It goes merely to show he has lied in this case in

the past when asked direct questions.” The court deferred a

ruling and asked the prosecutor to provide authority supporting

the request.

Later, citing Harris v. New York (1971) 401 U.S. 222, the

court ruled that statements made after defendant invoked his

right to silence could be used for impeachment. The court stated

that it would give the jury a limiting instruction. Defendant

objected under Evidence Code section 352. The prosecutor

reiterated why the testimony would be impeaching: “I think it’s

very relevant that [defendant] is denying yet again on the day

that he’s making his confession because . . . [defense] counsel

seeks to argue that his confession is tainted because he

obviously cannot come up with true factors related to the

murders, and that’s because he doesn’t know about the murders,

and that’s why he is unable to come up with these and that

shows that he’s an innocent person who’s falsely confessing.

However, at the same time that he’s being asked about that and

not coming up with what is factually accurate with the murder

scene, he’s also being asked about his relationship — or he has

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been asked about his relationship with Hector, certainly a

subject that he would have intimate knowledge about, and he’s

not coming up with the truth, either, until pressed. And so it’s

very relevant.”

The court permitted the requested impeachment, finding

it “very probative for the very reasons that [the prosecutor]

stated. It certainly is the type of evidence that can if

improperly —unless there are appropriate cautions to the jury,

it is the type of evidence that can certainly cause prejudice and

on occasion undue prejudice. However, in this case, given the

nature of the issues in this case, particularly the issue relating

to the confession, Mr. Sanchez’s — the testimony of Hector

Hernandez and his veracity and the other limited purposes for

which it . . . has been offered previously, it is probative and its

probative value certainly outweighs . . . any undue prejudicial

effect. So I have weighed those factors and will allow it and deny

the objection under [Evidence Code section] 352.”

The prosecutor questioned defendant about statements he

made to Sergeant Garay regarding his relationship with

Hernandez that occurred after the point at which the court had

ruled defendant invoked his right to silence. Defendant testified

that he originally denied having a sexual relationship, then

gradually admitted it when asked further questions.

In addition to the limiting instructions described in part

II.A.3.a, ante, the court gave the following instruction at the end

of the evidence portion of trial: “At one point in the videotaped

statement to Sergeant Garay, Mr. Sanchez stated, quote, ‘I don’t

want to talk anymore,’ unquote, and I believe that’s found on

page 44 of the transcript that is in evidence. In any event, as to

any statements made by Mr. Sanchez to Sergeant Garay after

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this point in time, you are to consider only such statements, if

any, that are inconsistent with his trial testimony. Any such

statements may be considered by you only for the purpose of

testing the defendant’s credibility. You are not to consider such

statements as evidence of guilt. This limiting instruction does

not apply to statements which you find were made prior to Mr.

Sanchez’s statement, ‘I don’t want to talk anymore.’ ” The court

then repeated the instruction.

b. Analysis

Defendant contends the court should have prohibited the

cross-examination into his sexual relationship with Hernandez

both because it was unduly prejudicial under Evidence Code

section 352 and because the cross-examination about his

statements to Sergeant Garay violated his Miranda rights.

The first argument largely reprises his similar argument

challenging the evidence previously admitted about the

relationship between defendant and Hernandez. (See pt. II.A.3,

ante.) Although not strongly probative, the cross-examination

was somewhat relevant to impeach defendant for the reasons

the prosecutor and the court identified. One defense theory of

the case, suggested in the defense’s opening statement to the

jury, was that defendant withheld information that the actual

killer would have known, which showed that he was ignorant of

that information; that, in turn, showed that his confession was

false. Evidence that, even after he confessed, defendant

continued lying and withholding information was probative on

this point and was thus probative of the credibility of

defendant’s testimony that he confessed falsely. Because

evidence of the sexual relationship had already been admitted,

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any additional prejudicial effect was slight. We see no abuse of

discretion under Evidence Code section 352.

A statement that is otherwise voluntary, but taken in

violation of the Miranda rules, may be admitted to impeach a

defendant who testifies. (Harris v. New York, supra, 401 U.S.

222; People v. DePriest (2007) 42 Cal.4th 1, 32.) Defendant

contends this rule does not apply because his testimony on direct

examination was not inconsistent with the admitted

statements, and the cross-examination concerned only collateral

matters. We need not resolve this point, because any error was

harmless in light of the evidence that was properly admitted.

The jury had already heard of the sexual relationship through

Hernandez’s own testimony, and defendant was also cross-

examined about his evasive statements to Detective Shear. The

brief cross-examination regarding defendant’s statements to

Sergeant Garay after he invoked his right to silence added little

to what the jury otherwise knew.

Moreover, the court gave repeated instructions limiting

the use the jury could make of this testimony, instructions we

presume the jury understood and followed. Any error was

harmless beyond a reasonable doubt.

6. Admitting Testimony That Was Later Stricken

The prosecutor, Deputy District Attorney David Alavezos,

asked defendant on cross-examination questions about some

testimony he anticipated he would present later. When he tried

to present the testimony, it had to be stricken and the jury

admonished to disregard it, because it turned out to be

inadmissible hearsay. Defendant contends that, in the process,

the court committed error, and the prosecutor committed

misconduct.

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a. Factual Background

During presentation of the defense case, Alavezos stated

outside the jury’s presence that defense counsel had just

informed him that the defense intended to call Lola Ortiz as a

defense witness. He said that the defense “just gave me what

looked like about a little over a hundred pages this morning on

Lola Ortiz . . . .” He wanted to know for what purpose the

defense intended to call her. He also said that Ortiz is “not a

percipient witness to anything, so everything she testifies to is

hearsay that she’s heard from somebody else.” Defense counsel

clarified that she intended for Ortiz to testify that Ortiz had not

seen defendant at the victim’s home.

After this, Alavezos also stated that if defendant called

Ortiz as a witness, he intended to present evidence that Ortiz

had told two persons about a conversation between Ermanda

and defendant shortly before the murders in which defendant

threatened Ermanda’s daughter. Alavezos acknowledged he

understood that Ortiz herself was “denying this now,” but the

two people she told had in turn “independently told officers” that

Ortiz told them she was present. Defense counsel asserted that

Ortiz “always says like she was there,” but “[w]hen you really

ask her, it turns out it’s hearsay from Ermanda, it’s not

admissible.” Defendant objected on hearsay grounds, and the

court made no ruling at the time.

The question arose outside the jury’s presence again the

next day. Defense counsel again objected to the evidence,

stating that Ortiz had denied hearing the conversation between

defendant and Ermanda. Counsel suggested that if Ortiz had

heard of the conversation at all, she might have heard about it

from Ermanda and did not personally overhear it. Alavezos

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represented that two witnesses, Margaretta Zepeda and Maria

Alicia Palomares, had told investigators in separate interviews

that Ortiz told them that she was present during the

conversation. He described what the witnesses had said. They

said that Ortiz told them that “she was present when Juan had

gone over to the victim’s residence in the evening to be paid for

some mechanical work he had done on Ermanda’s car; that

Ermanda told the defendant her car was running worse than

before he had worked on it and told defendant Sanchez that if

he would fix her car she would pay him. Defendant Sanchez

then told Ermanda that if she didn’t pay him, her daughter

would pay him, and that [Ortiz] understood this to mean that he

would harm Lorena.” The prosecutor again acknowledged that

Ortiz herself did not confirm this.

Based on these representations, the court found “sufficient

foundation” for the evidence to be admitted. Defense counsel

requested that it be stricken “if it turns out to be hearsay.”

Alavezos agreed not to “elicit the source” of the hearsay for the

time being.

Later Alavezos sought to question defendant on cross-

examination about this purported conversation between him

and Ermanda. When defendant objected, the court ruled outside

the jury’s presence that the prosecutor could ask the question,

and, if defendant denied the conversation occurred, it would

admonish the jury that questions are not evidence. When the

defense expressed doubt that an admonition would be effective,

the court responded, “I have a lot of faith in jurors following the

law. We went through extensive voir dire in this case with the

questionnaire and everything else. These people appreciate

their duties.”

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When cross-examination resumed, the prosecutor asked

defendant about the conversation. Defendant denied that it

occurred. At that point, the court admonished the jury: “Ladies

and gentlemen, I think it’s appropriate to remind you, once

again, that questions of counsel are not evidence. Counsel has

just asked two questions, Mr. Sanchez has denied it, and unless

there is some other evidence relating to it, that’s it. It didn’t

happen. You’re not to speculate otherwise.”

After these events, Ortiz testified as a defense witness

that she had not seen defendant at the Reyes house and

regarding some statements by Oscar. She was asked no

questions about the conversation between Ermanda and

defendant. Later, defense counsel objected under Evidence

Code section 352 to the prosecutor’s calling Ortiz to question her

about the conversation. The court found the evidence probative

and not unduly prejudicial.

Alavezos then called Ortiz as his own witness on rebuttal.

She denied overhearing the conversation between Ermanda and

defendant and further denied telling Zepeda or Palomares about

it. At this point, the court admonished the jury: “Remember,

ladies and gentlemen, the questions of counsel are not evidence.

It’s the testimony of the witness that is.”

The prosecutor then called Zepeda as a witness. At a

hearing outside the jury’s presence, the court permitted

Alavezos to ask leading questions to minimize the risk of the

witness saying something prejudicial. On the stand and in the

presence of the jury, Zepeda then denied that Ortiz told her

about something defendant had said in Ortiz’s presence. The

prosecutor questioned her about what she had told the

investigators. He asked, “Did you talk to them about what

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[Ortiz] had told you that she heard Juan say?” Zepeda

responded, “No, she did not hear. She was told by Ermanda.”

At that point, at defense counsel’s request, another

hearing was held outside the jury’s presence. Defendant asked

that the testimony be stricken and moved for a mistrial. The

court did not rule on the mistrial motion at the time, but it

stated the belief than an admonition would be effective. The

court then admonished the jury: “Ladies and gentlemen, there’s

been reference in the testimony about something that Ermanda

purportedly said to somebody else was reported to somebody

else, that’s hearsay. That’s totally unreliable. So that part of

this witness’s testimony is stricken. You shall disregard it. Do

you all understand that? Do you all understand how important

that is? This case is not going to be decided in any way by

inadmissible hearsay. Some hearsay is admissible under the

law, but some is so unreliable it does not come in, and this is

exactly that type of unreliable hearsay. It’s stricken. You shall

disregard it in its entirety.”

The prosecutor asked no further questions of Zepeda but

called Palomares as a witness. She also denied that Ortiz told

her that Ortiz was present when defendant made the

statements. At that point, the jury was dismissed, and the

witness was questioned further in its absence. Palomares said

she did not know whether Ortiz actually heard the conversation

between defendant and Ermanda or was merely relating what

Ermanda had told Ortiz. The prosecutor then stated the intent

not to question the witness further. The court said it would

admonish the jury to disregard all of this testimony.

Defense counsel again moved for a mistrial. She claimed

the prosecutor committed misconduct because he presented the

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evidence knowing it was unreliable for the sole purpose of

prejudicing the jury. The court asked Alavezos about his good

faith belief. The prosecutor said he believed from a report by

Investigator Florencio Camarillo that the witnesses had said

Ortiz was present during the conversation between defendant

and Ermanda.

Investigator Camarillo testified outside the jury’s

presence. He said he spoke with both Zepeda and Palomares.

He read the relevant portion of his report, dated September 7,

1999: “Lola [Ortiz] told them the defendant Juan Sanchez had

gone over to victim’s residence in the evening to be paid for some

mechanical work he’d done on her car. She told him [sic] that

Ermanda told . . . defendant that her car was running worse

than before he worked on it. Ermanda supposedly told

defendant Sanchez that if he would fix her car, then she would

pay him. Defendant Sanchez . . . then told Ermanda that if she

didn’t pay him, her daughter would pay him.”

Investigator Camarillo testified he “assumed” and

“received” the women’s statements as meaning that Ortiz was

present for the threat. But his report did not specifically address

the point. Asked whether he told Alavezos about his

conversations with Zepeda and Palomares, he said he had.

Asked further whether what he told Alavezos included that

Ortiz was present during the conversation, Camarillo answered,

“That’s how I understood it, yes.”

The court denied defendant’s mistrial motion. It found,

“based upon what has been presented to me, that Mr. Alavezos

had a good faith, although apparently mistaken, belief that . . .

the last two witnesses would impeach Lola Ortiz if she’s denied

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the conversation.” It expressed confidence that, given an

admonition, the jury would disregard the testimony.

The court admonished the jury: “Ladies and gentlemen,

all of the rebuttal evidence is stricken. You are to entirely

disregard it. Now, by rebuttal evidence, I’m talking about the

evidence today of Lola Ortiz, and thank you for crossing those

out of your notes, if you made any notes.” The court also struck

the testimony of Zepeda and Palomares, adding: “You are to

entirely and totally disregard it. It is unreliable and shall not

be considered by you in any way whatsoever. You’re to strike it

from your mind right now, totally. And I’m not only talking

about the testimony, obviously. By striking testimony, that

means that the questions of counsel are out, as well, because

questions of counsel, as you well know, as I’ve previously

admonished you many times, are not evidence. So there’s

absolutely nothing to consider relating to the testimony of those

three witnesses.” The court then asked each juror in turn

whether that juror understood the admonition and would follow

it. All responded affirmatively.

The court readmonished the jury as part of its overall

instructions after the presentation of evidence: “The entire

testimony of the witnesses Lola Ortiz, Margaretta Zepeda, and

Marie Palomares, given on Friday, October 9th, 1999, was

stricken by the court. You are instructed to entirely disregard

that evidence and not consider it in any way. You are reminded

of that instruction.” It clarified that the jury could consider

Ortiz’s earlier testimony when she testified as a defense witness.

b. Analysis

Defendant contends the court erred in not holding a

hearing to determine whether Ortiz had personal knowledge

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about the purported conversation between him and Ermanda.

It did not err.

“Subject to Section 801 [concerning expert witnesses], the

testimony of a witness concerning a particular matter is

inadmissible unless he has personal knowledge of the matter.

Against the objection of a party, such personal knowledge must

be shown before the witnesses may testify concerning the

matter.” (Evid. Code, § 702, subd. (a); see People v. Anderson,

supra, 25 Cal.4th at p. 573.) In this case, the court’s discussion

with counsel of Ortiz’s potential testimony made clear that the

threat would be admissible only if Ortiz testified she heard

defendant threaten Ermanda, which neither attorney expected,

or if Zepeda and Palomares testified Ortiz told them she had

overheard the threat. Given the parties’ uncertainty about what

the witnesses would say, the potentially prejudicial nature of

the information, and the inherent difficulty of stopping a jury

from considering information once it has been received, it would

have been prudent for the court to avoid potential prejudice by

examining the witnesses beforehand outside the jury’s presence.

(Evid. Code, §§ 402, 702.)

Although the court did not examine the witnesses

beforehand, it did hold a hearing. The prosecutor represented

that he had witnesses who would testify that Ortiz did have

personal knowledge of the conversation even if Ortiz denied it.

The court then permitted the prosecutor to call Ortiz herself as

a witness. When she denied the conversation, it permitted the

prosecutor to call the two witnesses (Zepeda and Palomares)

who, the prosecutor represented, would supply the missing

evidence. The two witnesses testified from personal knowledge,

although not in the way the prosecutor anticipated. If, as

anticipated, the two witnesses had testified that Ortiz told them

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she heard the conversation, the evidence would have been

admissible. The statements from defendant to Ermanda would

have come within the exception to the hearsay rule for

statements of a party. Ortiz’s statements to Zepeda and

Palomares would have come within the exception to the hearsay

rule for prior inconsistent statements. (Evid. Code, §§ 1201,

1220, 1235; see People v. Anderson (2018) 5 Cal.5th 372, 403.)

When it turned out that the witnesses did not establish that

Ortiz spoke from personal knowledge, the court struck the

testimony and admonished the jury. (See Evid. Code, § 403,

subd. (c)(2) [the court “[s]hall instruct the jury to disregard the

proffered evidence if the court subsequently determines that a

jury could not reasonably find that the preliminary fact [Ortiz’s

personal knowledge] exists”].)

Defendant relies primarily on People v. Valencia (2006)

146 Cal.App.4th 92. In Valencia, a conviction of sexual crimes

was based partly on hearsay statements of a person who had

“consistently and repeated stated” that she “lacked personal

knowledge” of the charged crimes. (Id. at p. 104.) It appears

that no effort was made to show that the declarant did, indeed,

have personal knowledge, and the evidence was admitted

without objection. The Court of Appeal found defense counsel

ineffective for not objecting to the hearsay testimony. “In the

absence of personal knowledge, a witness’s testimony or a

declarant’s statement is no better than rank hearsay or, even

worse, pure speculation.” (Id. at pp. 103-104.) This case is

entirely different. Here, based on the prosecutor’s

representation, the court did not clearly err in permitting the

prosecutor to try to establish the requisite personal knowledge.

When the testimony differed from what was expected, the court

struck the testimony. In contrast to Valencia, where the jury

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was permitted to consider the inadmissible hearsay, here the

court instructed the jury not to consider it.

In any event, no prejudice actually resulted. “[T]he court

firmly instructed the jury to disregard the testimony, and we

presume the jury did so.” (People v. Melendez (2016) 2 Cal.5th

1, 33.) Defendant contends the admonitions were inadequate.

We disagree. The admonitions were squarely on point and

clearly instructed the jury on its duty. Indeed, the court took

the extraordinary step of polling the jurors individually to

ensure that each understood and would follow the admonition.

To the extent defendant contends the court erred in not

granting the mistrial motion after Zepeda stated that Ortiz had

been “told by Ermanda,” we disagree. We review the denial of a

mistrial motion for abuse of discretion. (People v. Rices (2017) 4

Cal.5th 49, 92.) “A court should grant a mistrial motion based

on a witness’s statement if it judges the defendant has been

prejudiced in a way that an admonition or instruction cannot

cure. Because this is inherently a speculative matter, the trial

court has considerable discretion in ruling on a mistrial motion.”

(Ibid.) Here, the trial court participated in selecting this

particular jury, and it knew the jury well. It was confident that

an admonition would cure any harm. We have no reason to

disagree or find the court abused its discretion.

Defendant also contends the prosecutor committed

misconduct in two respects. First, he contends the prosecutor

committed misconduct in cross-examining him about the

conversation. “ ‘It is improper for a prosecutor to ask questions

of a witness that suggest facts harmful to a defendant, absent a

good faith belief that such facts exist.’ ” (People v. Bolden (2002)

29 Cal.4th 515, 562.) However, “as long as he had a good faith

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belief in the existence of the preliminary fact [citation], the

prosecutor was entitled to ask defendant” these questions.

(People v. Lucas (1995) 12 Cal.4th 415, 467.) Defendant

contends the prosecutor did not act in good faith. However, after

holding a hearing, the court found otherwise, and it also found

that an admonition would cure any harm. “The record supports

these determinations and we adopt them as our own.” (People

v. Warren (1988) 45 Cal.3d 471, 482.)

The prosecutor stated the source of his belief that Ortiz

had personal knowledge: a report from Investigator Camarillo.

Although the report did not say so, Camarillo testified that he

assumed or understood that Ortiz had personal knowledge of

the threat, and in conveying the report to the prosecutor he also

conveyed that understanding. This testimony, along with the

prosecutor’s representation he expected Zepeda and Palomares

to testify that Ortiz told them she witnessed the threat, supplied

substantial support for the trial court’s finding of good faith.

While we do not overturn the trial court’s finding, we note

that the prosecutor knew that Ortiz would likely deny

knowledge of the threat. Indeed, when she testified, Ortiz

denied overhearing the threat and even denied telling Zepeda

and Palomares about it. Thus, the prosecutor knew he would

have to rely on Zepeda and Palomares to make the testimony

admissible. But the report of those witnesses’ statements did

not specifically state that Ortiz had overheard the threat. In

this circumstance, it would have been prudent for the

prosecutor, no less than for the court, to verify the threat’s

admissibility before questioning witnesses about it in front of

the jury.

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Defendant also contends the prosecutor committed

misconduct by not admonishing the witnesses before calling

them. Defendant appears to focus on Zepeda’s statement that

Ortiz “was told by Ermanda.” “A prosecutor has the duty to

guard against statements by his witnesses containing

inadmissible evidence. [Citations.] If the prosecutor believes a

witness may give an inadmissible answer during his

examination, he must warn the witness to refrain from making

such a statement.” (People v. Warren, supra, 45 Cal.3d at pp.

481-482.) Defendant did not object on this basis at trial, thus

forfeiting the contention. (People v. Leonard (2007) 40 Cal.4th

1370, 1406.) Because defendant did not object, the record does

not indicate whether the prosecutor had reason to believe any

witness would state something inadmissible, or whether he did

or did not admonish the witnesses. (Ibid.) The record does

reflect that the prosecutor requested and was given permission

to ask leading questions to minimize the risk of eliciting

inadmissible evidence. The prosecutor also stated his intention

not to elicit the source of the statements for the time being. He

asked Zepeda a yes or no question designed not to elicit the

inadmissible statement that the witness, nonetheless, blurted

out. In any event, as we have explained, the court’s admonitions

sufficed to prevent prejudice.

Something similar occurred in People v. Melendez, supra,

2 Cal.5th at pages 31-33. There, the prosecution presented

evidence that a witness had been injured in a criminal assault.

The circumstances in which the evidence was presented implied

that the defendant had committed the crime. But anticipated

evidence connecting the defendant to the crime never

materialized, and the trial court had to admonish the jury to

disregard the testimony. We found no error and, given the

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admonition, no prejudice. We further explained that “[w]hat

occurred here was unfortunate, but it is the sort of event that

sometimes happens in a trial. . . . Witnesses sometimes blurt

things out or . . . testify in unanticipated ways. We have to trust

the trial court to take corrective measures when necessary, as

the court here did, and the jury to follow the court’s instructions.

It would be easy for the jury to understand that no evidence was

ever introduced to show that defendant was responsible for the

witness’s injury, and therefore it had to disregard her testimony.

We have no basis even to speculate that the jury based its

verdict on the stricken testimony rather than the evidence it

properly heard.” (Id. at p. 33.)

The same is true here. The jury could easily understand

that the stricken testimony was, as the court repeatedly stated,

“unreliable,” and the jury had to disregard it. As in People v.

Melendez, supra, 2 Cal.5th 1, we find neither error nor prejudice

in Zepeda’s unexpected testimony.

7. Alleged Prosecutorial Misconduct During the

Closing Argument

Defendant contends the prosecutor committed misconduct

during his guilt phase closing argument to the jury.

The prosecutor argued: “[T]hat’s where Ermanda got

killed, outside her daughter’s door, watching, most likely, her

daughter dying. She has one other child in the house, and she

gets to her bedroom where that child is and she gets on the

phone. The defendant goes in there and she’s not even able to

call the police. She died not knowing if her youngest was going

to make it, but knowing her oldest hadn’t.”

Defendant objected to the argument outside the jury’s

presence on the ground that the prosecutor was “prejudicing and

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trying to inflame the jury.” The court found no misconduct but

stated that “if there is a pattern that is established, then the

court will deal with it appropriately. Prosecutor is on notice of

the defense’s objection. There is a . . . line between what is

argument and inflaming. I’m not ruling the prosecutor has

reached the point of inflammatory argument. Defense [counsel]

has put her concern on record, and the court will continue to

listen to the argument and, if there’s a further objection, I’ll

consider it.” The prosecutor then turned to other matters in his

jury argument and did not return to this theme.

Defendant argues that the prosecutor committed

misconduct by “by inviting the jury to imagine [Ermanda’s] last

thoughts.” We have repeatedly stated that it is “ ‘improper to

make arguments to the jury that give it the impression that

“emotion may reign over reason,” and to present “irrelevant

information or inflammatory rhetoric that diverts the jury’s

attention from its proper role, or invites an irrational, purely

subjective response.” ’ ” (People v. Redd (2010) 48 Cal.4th 691,

742.) More specifically, we have said that “[i]n the guilt phase

of a trial, it is misconduct to appeal to the jury to view the crime

through the eyes of the victim.” (People v. Mendoza (2007) 42

Cal.4th 686, 704; see People v. Stansbury (1993) 4 Cal.4th 1017,

1057 [similar].)

Here, the prosecutor only indirectly suggested that the

jury should view the crime through Ermanda’s eyes.

Nevertheless, the comment was irrelevant to defendant’s guilt

and, for that reason, should not have been made. However, as

in both Mendoza and Stansbury, any impropriety was not

prejudicial. The comment was brief and made during a long and

otherwise unobjectionable jury argument. (See People v.

Stansbury, supra, 4 Cal.4th at p. 1057.) When admonished by

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the court, the prosecutor “did not return to the point.” (People

v. Mendoza, supra, 42 Cal.4th at p. 704.) We find no reasonable

probability the jury would have reached a different verdict

absent the comment. (Stansbury, at p. 1057.)

Defendant also argues that “the prosecutor improperly

argued matters outside the record and became an unsworn

witness.” He did not object “on this basis, and therefore has

forfeited this claim.” (People v. Redd, supra, 48 Cal.4th at p.

743.) The contention also lacks merit. The comment was clearly

based on the evidence presented at trial. As the evidence

strongly supported the comment, no reason existed for the jury

to believe otherwise.

B. Issue Regarding Penalty

Defendant contends the court erred in admitting evidence

in aggravation under Penal Code section 190.3, factor (b), that

defendant committed a crime involving force or violence against

his stepdaughter, Tammy Lucio (Tammy). He contends the

evidence was insufficient to permit the jury to find he committed

such a crime.

At a hearing outside the jury’s presence, defense counsel

requested an offer of proof regarding any crime committed

against Tammy. The prosecutor responded that Tammy “had

stated that [defendant] has hit her on the head previously.”

When defense counsel said, “Tapped her on the head,” the

prosecutor reiterated that Tammy had said defendant hit her on

the head, although “she minimized it later on after saying that.”

Defense counsel stated her belief that Tammy would not

corroborate anything about assaultive conduct. The court

responded, “Then the District Attorney loses and anytime a

party puts on evidence and it falls way short of what you contend

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it is, it doesn’t really help their position.” The court ruled it was

for the jury to determine whether it was just a tap in the head

or a battery.

Thereafter, Tammy testified. She generally said

defendant never assaulted her. She said he merely gave her a

“gentle tap on the top of my head.” She added that it was “never

a striking blow. He’s never hit me in my life.” Additionally, she

testified that defendant “treated me very good. He’s always

treated me with respect and he’s showed me how to be a lady.”

She said that she responded, “hm-hmm” when an investigator

asked her if it was more than “a striking blow,” but she was not

trying to tell the investigator that defendant hit her hard.

After the presentation of evidence, defendant asked the

court to rule that the evidence was insufficient to support a

finding of assaultive conduct. The court denied the request. It

instructed the jury that the evidence of other crimes it could

consider included “striking Tammy Lucio in the head, a

violation of Penal Code section 242, a battery,” and it defined

the crime of battery. It also instructed that a juror could not

consider the crime unless that juror first found defendant

committed it beyond a reasonable doubt.

Defendant argues Tammy’s testimony presented

insufficient evidence for a juror to conclude beyond a reasonable

doubt that defendant committed a criminal battery against her.

“Because the question concerns the admissibility of evidence, it

also comes within the trial court’s discretion.” (People v.

Rodriguez, supra, 58 Cal.4th at p. 636.) Tammy’s trial

description of what defendant had done did not support a finding

that he committed a battery. But her earlier apparent

affirmative response to the investigator’s question whether

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defendant had hit her more than a striking blow, which was

admissible for its truth as a prior inconsistent statement (Evid.

Code, § 1235), did support such a finding, albeit just barely.

Victims of domestic violence sometimes try to minimize the

events later. The jury could reasonably believe this was one

such occasion and give more credence to Tammy’s earlier

statement than to her trial testimony. This evidence of a crime

was tenuous, but we believe admitting it and letting the jury

decide came within the trial court’s discretion.

Moreover, we would find any error harmless. As the trial

court noted, when the evidence falls short of what the party

presenting it expects, it is not good for that party. Tammy’s

testimony was generally favorable to defendant. If, as

defendant contends, her testimony did not warrant a finding

that he committed a crime against her, it is unlikely the jury

would have given it much, if any, consideration in aggravation.

It is far more likely that her testimony helped defendant,

especially given that she was called as a prosecution witness.

We find no reasonable possibility the verdict would have been

different had the court not permitted the jury to consider

Tammy’s testimony as possible aggravating evidence. (People v.

Gonzalez (2006) 38 Cal.4th 932, 960-961.)

C. Cumulative Effect of the Asserted Errors

Defendant contends the cumulative effect of the asserted

errors was prejudicial. We disagree. Any errors were minimal

and had no cumulative effect.

D. Challenges to California’s Death Penalty Law

Defendant reiterates numerous challenges to California’s

death penalty law that we have repeatedly rejected. We adhere

to our previous decisions.

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Penal Code sections 190.2 and 190.3 are not impermissibly

broad, and Penal Code section 190.3, factor (a), does not make

imposition of the death penalty arbitrary and capricious.

(People v. Johnson (2015) 60 Cal.4th 966, 997.) “Except for

evidence of other crimes and prior convictions, jurors need not

find aggravating factors true beyond a reasonable doubt; no

instruction on burden of proof is needed; the jury need not

achieve unanimity except for the verdict itself; and written

findings are not required.” (Ibid.) “CALJIC No. 8.88’s use of the

words ‘so substantial,’ its use of the word ‘warrants’ instead of

‘appropriate,’ its failure to instruct the jury that a sentence of

life is mandatory if mitigation outweighs aggravation, and its

failure to instruct the jury on a ‘presumption of life’ does not

render the instruction invalid.” (People v. Rountree (2013) 56

Cal.4th 823, 862-863.) Penal Code “[s]ection 190.3’s use of

adjectives such as ‘extreme’ and ‘substantial’ in describing

mitigating circumstances does not impermissibly limit the jury’s

consideration of mitigating factors.” (Id. at p. 863.) “The court

need not delete inapplicable sentencing factors . . . .” (Ibid.)

“Intercase proportionality review is not required.” (People v.

Livingston, supra, 53 Cal.4th at p. 1180.) “The California death

penalty scheme does not violate equal protection by treating

capital and noncapital defendants differently.” (Ibid.) “Use of

the death penalty does not violate international law and is not

unconstitutional.” (Ibid.)

“Defendant also argues that the recent high court decision

of Hurst v. Florida (2016) 577 U.S. __ [193 L.Ed.2d 504, 136

S.Ct. 616], which invalidated Florida’s sentencing scheme, also

invalidates California’s. It does not. (People v. Rangel (2016) 62

Cal.4th 1192, 1235 & fn. 16.) ‘The California sentencing scheme

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is materially different from that in Florida.’ (Id. at p. 1235, fn.

16.)” (People v. Becerrada (2017) 2 Cal.5th 1009, 1038.)

III. CONCLUSION

We affirm the judgment.

CHIN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

78

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Sanchez

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S087569

Date Filed: April 29, 2019

__________________________________________________________________________________

Court: Superior

County: Tulare

Judge: Gerald F. Sevier

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Nina Wilder,

Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Assistant Attorney General,

Kenneth N. Sokoler, Rebecca Whitfield and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Nina Wilder

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607

(510) 267-3300

Angelo S. Edralin

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 445-9555