People v. Sanchez CA2/3

Filed 6/24/21 P. v. Sanchez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B302549

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA447545
v.
ORDER MODIFYING OPINION
JOHNNY JOSUE SANCHEZ, AND DENYING PETITION
FOR REHEARING
Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on May 28, 2021, be
modified as follows:
1. On page 18, the second sentence of the third full
paragraph is deleted, and the following is inserted in its place:
“The only lunch period during deliberations would have been the
next day, Thursday.”
2. On page 24, the second full sentence at the top of the
page is deleted, and the following is inserted in its place:
“We do not second-guess the trial court’s conclusion that Juror
No. 2 was credible when she testified under oath that none of the
alternate’s statements came up in the jury room.”
3. On page 24, the third sentence from the end of the
first paragraph is deleted, and the following is inserted in its
place:
“Defense counsel urged the trial court to “rely on its gut,
experience” despite the jurors’ testimony they did not have
improper conversations.”
4. On page 28, the first sentence of the last paragraph is
deleted, and the following is inserted in its place:
“Sanchez has not demonstrated prejudice to his full ability to
defend against the murder and attempted murder charges
of which he already had been convicted.”

There is no change in the judgment.

Appellant’s petition for rehearing, filed on June 14, 2021, is
denied.

____________________________________________________________
EGERTON, J. LAVIN, Acting P. J. ADAMS, J.

 Judge of the Los Angeles Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

2
Filed 5/28/21 P. v. Sanchez CA2/3 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B302549

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA447545
v.

JOHNNY JOSUE SANCHEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, James R. Dabney, Judge. Affirmed.

C. Matthew Missakian, under appointment by the Court
of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Stephanie A. Miyoshi and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 A jury convicted Johnny Josue Sanchez of five counts of
special circumstance murder and two counts of willful, deliberate,
and premeditated attempted murder, after a deadly fire in the
abandoned building where Sanchez and others lived. He appeals,
arguing prejudicial juror misconduct, a violation of his right to
be present, the improper exclusion and admission of evidence,
insufficient evidence of a “kill zone,” an improper “kill zone”
instruction, and prosecutorial misconduct. We affirm.
BACKGROUND
An information charged Sanchez with five counts of
murder: DeAndre Mitchell (count 1); Jerry Dean Clemons
(count 2); Mary Ann Davis (count 3); Joseph Proenneke (count 4);
and Tierra Stansberry (count 5) (Pen. Code, § 187, subd. (a)1).
All five murder counts alleged the special circumstances
that Sanchez committed multiple murders, while engaged
in committing arson. (§ 190.2, subds. (a)(3), (a)(17).) The
information also charged Sanchez with the attempted, willful,
deliberate, and premeditated murder of Anthony Roberts
(count 6) and Robert Fernandez (count 7) (§ 664/187, subd. (a)).
1. Prosecution case
a. Fire department and law enforcement testimony
In early June 2016, Assistant Chief Jaime Moore of the
City of Los Angeles Fire Department (LAFD) met with the owner
of an abandoned building at 2411 West Eighth Street, to discuss
the homeless people living inside. All utilities were shut off and
the owner awaited city permission to tear the building down.
When Chief Moore returned on June 13, the building
was on fire. Two fire trucks and three fire engines responded,

1 All statutory references are to the Penal Code.

2
three aerial ladders went to the roof, firefighting lines sent
pumped water into the building, and firefighters used a wooden
ladder to rescue people from second-story windows in the alley.
Almost immediately, firefighters found a dead body in the second-
floor hallway. A woman pulled on Chief Moore’s coat and told
him her friends were still inside. He stayed for almost 24 hours,
and the next day specialized K-9 dogs found more bodies.
Chief Moore did not worry that homeless people living
in the building would start a fire by smoking or using candles,
but he was concerned they would get hurt in the unsafe interior.
He was not aware of data showing homeless people were more
likely to start accidental fires.
LAFD Captain David Lindsay and his company responded
to the scene around dinnertime. Fire and smoke were coming
out of windows on the alley side of the building, and people in
the alley and in the upstairs windows were screaming for help.
Firefighters forced the front doors open, and Lindsay’s company
went inside and saw fire on the concrete stairs to the second floor.
Because concrete does not burn, he believed something was on
the stairs to burn, and this was not an accidental fire. They
put out the stair fire and went upstairs, where an enormous fire
was free-burning in the hallway. The floor was extremely hot.
They found a body in the hallway but had to keep fighting the
fire while two firefighters dragged the body back. They could
not get far because the fire was so hot, and the tanks on their
breathing apparatus began to run out of air. A security door
had been blown off its hinges, perhaps by a rapid rise of heat
causing a “flashover,” when smoke itself lights up and explodes.
The fire moved quickly through the building. It took
three hours to put it out. A fast-moving fire could be caused

3
by deliberately starting fires in multiple locations, and by using
accelerants.
LAFD Captain Mark Soto was on a fire engine that
responded to the fire just after 7:00 p.m. Smoke was coming
out of the front and alley sides of the second floor. As he entered
with his team and hose, he saw fire on the concrete stairs,
which was unusual because there was not much to burn. A
male Hispanic with short hair wearing jean shorts and no shirt
was inside. Captain Soto told him to leave the building, but he
turned away and walked back inside.
They took two water lines up the stairs, but the second-
floor fire was too big, and they had to back out of one room
because of the intense heat. They pulled out when the incident
commander sent in heavier streams. The firefighters gave up
on saving the building, pulled everyone out, and went into
defensive mode to protect surrounding structures.
A firefighter saw people in the alley pointing up at someone
yelling from a second-floor window on the alley side. He put a
20-foot extendable ladder up to the window, broke the glass, and
helped a Black woman and a Hispanic man down. Someone else
yelled his brother was in another room in the back, and the
firefighter saw a hand hanging out of the window between
security bars. He put the ladder up to that window, and another
firefighter climbed up and cut the bars with a rotary saw.
When the second firefighter learned someone was trapped
in a window on the second floor, he ran past two Hispanic men
fighting in the alley, went up the ladder to the window, used
the saw to cut the bars, and helped the man out. The man had
cut his arm on some metal and nearly passed out. The firefighter
carried him down and dragged him to the street corner. When

4
he went back inside and up the stairs to help pull hose, other
firefighters handed him a dead body too badly charred to bring
out into the street. He left the body at the bottom of the stairs.
A Los Angeles Police Department (LAPD) officer arrived
at the scene, and Nivea and Flaco2 pointed at Sanchez, who
had a shirt wrapped around his nose and mouth. Nivea said:
“ ‘That’s the guy who started the fire. That’s the guy,’ ” and
she said Sanchez had threatened to jump her. Sanchez, with
lacerations on his face, was standing in the mouth of the alley.
His fists were clenched and he was swaying back and forth.
Looking at the officer, he threw his shirt on the ground. She
handcuffed him and he was placed under arrest. A large
gas lighter you could buy at a smoke shop and a pipe were
in his pocket.
The next morning, firefighters entered the burned-out
building with cadaver dogs, who alerted to a spot in an upstairs
room secured from the inside. The bodies of Clemons, Davis,
Proenneke, and Stansberry lay under three to four feet of debris.
The four victims were huddled together as if asleep, on blankets
and a sleeping bag stacked on a tarp. The medical examiner
testified Proenneke had burns on 15 percent of his body, and
he died from the burns, carbon monoxide poisoning, and smoke
inhalation. Clemons had burns on most of his back, and died
of carbon monoxide poisoning, smoke inhalation, and burns.
Davis died of burns and smoke inhalation. Stansberry had

2 Nivea’s birthname was Anthony Roberts. She was
transgender, preferred female pronouns, and called herself Nivea,
which we use throughout. Flaco was Robert Fernandez’s street
name. Nivea and Flaco were the alleged victims of the attempted
murders charged in counts 6 and 7.

5
burns on 33 percent of her body, and died of carbon monoxide
poisoning and smoke inhalation.
The fifth victim, DeAndre Mitchell, had the most severe
burns, going through the skin into muscle and bone. He died of
his burns and smoke inhalation.
LAFD arson investigator Lance Jimenez first arrived at
9:30 p.m. on the evening of the fire. He surveyed the outside
of the building and came back early the next morning when
the light was better and the fire was completely out. Mitchell’s
body was still in the lobby by the stairs. Firefighters wrapped
the body in a sheet and moved it outside for the coroner.
The building’s roof had collapsed and there were severe
burn patterns above the windows on the alley side. When the
windows were broken, oxygen would rush inside and increase
the interior fire. Jimenez went in through the garage and saw
the power lines had been cut. The fire had started on the second
floor and worked its way down the stairs and out through the
roof, and had been most severe on the alley side of the building.
Jimenez saw a very severe burn pattern in the second-floor
hallway, alerting him the fire may have started there. The front
corner of the upstairs exterior facing Eighth Street and the alley
had similarly heavy fire damage. He believed two separate fires
had started in the second-story hall and then moved into the
rooms.
Jimenez looked for anything that could have started or
accelerated the blazes, eliminating an electrical cause because
the power was out. He found no candles or candle wax, burnt
cigarettes, or cooking devices. Nothing showed the fires were
natural or accidental. His opinion was the fire was incendiary,
with two separate fires intentionally set at the same time.

6
Someone took an open flame to available combustibles, and
the fires burned rapidly. A K-9 detected no accelerants such as
gasoline or lighter fluid, and Jimenez found no gas cans. Trash
throughout the building could ignite and feed the fire, and some
of the trash might have been piled up before being set on fire.
On cross-examination, defense counsel asked Jimenez if
a red bottle appearing in a photograph of the first-floor landing
could be a can of gasoline. Jimenez responded he had no idea.
b. Building residents and eyewitnesses
i. Nivea
Nivea testified about 10 people lived in the building off
and on, including Sanchez, Mitchell (whose nickname was
Jokerface), a homeless couple, and Jared Muse. Other people
came to party or hang out, and Nivea had spent the night in
the building. Sanchez was always there. He stayed in one of
the former offices on the second floor. A month before the fire,
Nivea asked Sanchez’s girlfriend if she wanted to smoke meth,
and Sanchez slapped his girlfriend in the face. After that,
Sanchez was always hostile to Nivea and would tell her to
get the fuck out of the building.
On the day of the fire, Nivea arrived at the building
before sundown. She came in through the only entry, a hole in
the carport gate, and walked up the front steps. Once inside, she
entered one of the rooms and walked through a hole in the wall
into a dark room, where she saw Sanchez. A file cabinet blocked
the door on the other side of the room and she asked him to
move it. In Spanish and broken English, he yelled at her to
go back the way she came, and threatened to chop her up with
a machete. Nivea hit him on the forehead with a small flashlight,
and Sanchez threw a punch. She sprayed him with Mace and

7
he started to yell and scream. She picked up what she thought
was her phone (but picked up Sanchez’s phone by mistake),
moved the file cabinet, and walked through the door into
the hallway.
Nivea’s friend Flaco was in the hallway. He asked her
what was happening, and she told him she had fought with
Sanchez. They went into Flaco’s room next door, and he closed
and locked the wooden and screen doors. There was a pile of
trash two feet high out in the hall in front of the door. Nivea
could hear Sanchez outside the room screaming he was going
to kill her, and it sounded like he was throwing metal file
cabinet drawers.
Nivea and Flaco talked for some time, while Sanchez kept
screaming. Sanchez stopped, and a minute or two later, Nivea
walked over to the window and saw a crowd of people across
the street, filming the building with their cell phones and tablets.
Smoke was coming from the top of the building. She told Flaco
it looked like the building was on fire. He opened the door to
the hall, but the trash pile right outside the door was in flames
and blocked their exit. A friend in the alley called “Bum” threw
a fire extinguisher up to Flaco, but it was empty. After the fire
department sawed the bars on the window, Nivea and Flaco
escaped down the ladder.
Sanchez stood in the middle of the alley. Nivea pointed
at him and yelled: “ ‘He did it.’ ” Her friends started to beat
Sanchez up, and he ran back into the burning building. The
detectives had Nivea and Flaco sit on the curb. Nivea saw
Sanchez come back out of the building, his shirt wrapped around
his nose and mouth. Nivea told a police officer Sanchez started

8
the fire, and the officer handcuffed him and put him in the back
of a patrol car.
ii. Flaco
Flaco lived in a room in the building for three months.
He had his own lock and a security system to prevent anyone
from prying the lock open. Sanchez lived in the room next to his,
and Nivea stayed in a room across the hall. Four people from
Iowa and an African-American also lived in the building.
On the day of the fire, Flaco heard Sanchez and Nivea
arguing in Spanish and English, throwing things, and fighting
for five to 10 minutes, because Sanchez wouldn’t let Nivea go
through his room to get to her room. He opened his door when
Nivea came out and invited her into his room, locking and bolting
the door. They talked for about 15 minutes, while Sanchez
continued to threaten to kill Nivea and chop her up with a
machete. Nivea noticed people filming the building, and Flaco
looked out and saw smoke. When he opened his door, he saw
smoke and flames coming from the pile of trash in the hall.
He closed the door and gathered his things. The firefighters
broke the window and helped Nivea and Flaco down the ladder.
Once outside, Flaco could hear Muse screaming from inside
the building. Sanchez came out of the alley and walked toward
the street. When people pointed him out, Sanchez ran back into
the building. He came back out with his nose and mouth covered,
and was arrested.
iii. Jared Muse
Muse lived in the building for three to six months. He
shared with Jokerface (Mitchell) a large divided room on the
second floor facing the alley. Muse had seen Sanchez in the
garage and once or twice inside a room.

9
 On the day of the fire, Muse entered the building around
sunset. He and Mitchell were in the room with the door open
when they noticed smoke on the ceiling. Mitchell ran into the
hall and screamed, and smoke started to fill the room. Muse
punched the window glass out, cutting his arm, and called for
help. Firefighters sawed the bars off the window and brought
him down the ladder.
After Muse was rescued, he saw Sanchez leave the garage
through the gate next to the alley and talk to the police. Muse
sat on the curb with Flaco and Nivea before leaving in an
ambulance. The cuts on his arm required stitches and staples.
iv. Paulina Mendez
Paulina Mendez lived in a first-floor apartment across
the alley. At around 7:00 p.m. on the night of the fire, she
smelled smoke. She went into her dining room, looked out of
the open window facing the alley, and saw the building on fire.
Sanchez was running back and forth and screaming. He stopped
in front of her window, yelling: “ ‘There’s somebody I don’t like.
I hope he burns. I hope he dies.’ ” He told her if she talked he
would burn her house down too. He went back into the building
and then quickly exited with his face covered. Although she
was afraid, Mendez called 911 and identified Sanchez later
at the scene. She still was afraid and reluctant to testify.
Eight days after the fire, Mendez told LAPD Detective
Frank Carrillo she asked Sanchez who started the fire, and
Sanchez answered in Spanish: “ ‘I did, because there’s a son of
a bitch over there, and I don’t like him, and that’s why I set it on
fire.’ ” Sanchez added: “ ‘I’m going to burn your house down too,
you old bitch,’ ” and walked toward the corner. The jury heard
Mendez tell the 911 operator: “[T]he guy who set the building

10
on fire is a cholo. And right now since I was telling my kids
that he did it, he’s threatening me and he’s over there all calm.
Because he said that he had to kill everyone who was inside
that building.”
The day after the fire, two guys who looked like cholos
came to her house looking for one of her sons. One of them said:
“ ‘You know what happens to people who talk.’ ” Seven months
before trial, she met with the prosecutor, and after that other
guys came to her door asking about her son, and men drove by
yelling: “ ‘Rats, rats, rats die.’ ” A woman stopped by and asked
her whether she was the one who was going to testify. Mendez
was frightened.
Mendez had four sons: Jose, Julio, Byron, and Eddie.
Jose went by “Bum,” and Julio went by “Virus.” Bum and Virus
lived on the streets and came home now and then to shower
or eat. When Mendez saw the fire, she was worried because she
didn’t know where Virus was, but later she learned he was safe.
She also noticed her fire extinguishers were gone.
2. Defense case
a. Sanchez
Sanchez testified in his own defense. Six weeks before
the fire, he and his girlfriend argued inside the building. She
slapped him, he pushed her back, and a Black transgender
person he called “Queen” (Nivea) got between them and told him
not to push his girlfriend. Nivea then asked if his girlfriend
wanted to smoke meth, and Sanchez got upset.
On the day of the fire, Sanchez was in a room in the
building. One door was open, and the other was blocked with
a file cabinet. At 3:00 or 4:00 p.m., Nivea came in. He stopped
her from going through the blocked door, and she yelled at him,

11
hit his left eyebrow with a flashlight, and sprayed him with
pepper spray. He tried to fight back but his eyes burned. Nivea
went back out the open door and Sanchez ran out of the building.
He went to a liquor store for ice but the bags were too big, so he
bought ice cream and put it on his eyes. His left eyebrow was
cut and swollen.
At a nearby store, a man Sanchez knew named Jose gave
him a clean shirt, and he threw his bloody shirt in the trash.
After 15 to 20 minutes at the store he realized he didn’t have
his phone, and went back to the building to find it. He walked
through the back of the alley and saw the building was on fire.
Mendez was standing at her window. She said she’d seen him
there before, and asked if he had anything to do with the fire.
He said no, and suggested her sons (who were homeless and
stayed in the building) or someone else who lived there might
have started it. Mendez replied: “ ‘My son might be crazy,
but he’s not a dumbass,’ ” and said she was calling the police.
Mendez commented on Sanchez’s cut eyebrow. He
explained he had fought with someone inside a half hour earlier,
and “ ‘[i]f . . . that person is there in that place, I don’t really care.
Look at what she did to me.’ ” Mendez answered: “ ‘Oh, so you
did it.’ ” Sanchez denied starting the fire, and told Mendez that
if he wanted to hurt someone, he would use a gun. He may have
said something about “burning” Nivea, but he meant with bullets.
Sanchez could hear people yelling inside the burning
building. Mendez pointed at him and said he started the fire.
Two of her sons started to fight with him for disrespecting their
mother.
Thinking a friend was inside, Sanchez went back into the
building. To protect himself from the smoke he took off his shirt

12
to cover his face. Firefighters blocked him from the second floor
and told him to leave.
Outside near the alley, he threw his shirt down and started
coughing. Nivea had been rescued, and she pointed at him as if
he had caused the fire. The police handcuffed, arrested, and
searched him, finding his lighter and the pipe he used to smoke
weed. At the police station he met with Detective Carrillo,
his partner, and Jimenez, the arson investigator.
On cross-examination, Sanchez claimed he was not
homeless but sometimes stayed in the building. He knew
Muse lived there but had never met Flaco. The building was
abandoned and full of trash, and people could use any room they
liked. He wasn’t sure which room he was in the night of the fire,
but he didn’t like Nivea walking through. He argued and fought
with her, but he never said he would chop her up with a machete.
When he told Mendez he wanted to “burn” Nivea, he meant with
bullets.
He left the building to go to the liquor store and get ice for
his eyes, walking through the alley. He then went to Jose’s store,
asked for a clean shirt, and ate. He stayed for less than an hour
and went back to the building to find his phone, again walking
down the alley, where he talked to Mendez as she stood at her
window. He did not remember telling Detective Carrillo he was
in the building when the fire started.
b. Jose Cabrera
Jose Cabrera testified he worked at a community food bank
about a block and a half from the building. Between 3:00 and
3:30 p.m. on the day of the fire, Sanchez came to the store (food
bank) wearing a shirt with a little blood on it, and Cabrera gave
him a free shirt. Sanchez ate and stayed at the food bank for

13
three hours, leaving around 6:00 or 6:30 p.m. A week before his
testimony, Cabrera had trouble identifying Sanchez in a photo.
c. Jesse Delgado
Jesse Delgado was a civilian LAPD employee trained
in advanced interrogation techniques. When he interviewed
Sanchez in custody the day after the fire, Sanchez consistently
denied he started the fire.
3. Rebuttal
A Los Angeles County sheriff’s deputy with bilingual
Spanish certification interpreted during a June 15, 2016
interview with Sanchez. Sanchez said he was in his second-floor
room when someone told him there was a fire, they could smell
the smoke, and they needed to evacuate. A fire on the right
of the stairs spread to his room, and he ran out through the
heavy smoke. Sanchez denied he started the fire.
Detective Carrillo testified he obtained and watched
video from a surveillance camera. The video showed the alley
and displayed a correct system date, but the time was off by
42 minutes. The footage captured images on the day of the fire
from 1:15 p.m. to 4:00 p.m., and from 5:15 p.m. to 8:46 p.m.
Although Sanchez had testified he walked through the alley
when he left the building that afternoon to get ice for his eyes
and when he returned from Jose’s store, he did not appear in any
of the footage until after 7:00 p.m., when a man wearing clothing
matching what Sanchez wore walked north in the alley, and
shortly thereafter ran back southbound. The prosecution showed
the jury two screenshots of the empty alley, and the defense
showed the jury two screenshots of the man walking in the alley,
but the video was not admitted into evidence.

14
 During two interviews on June 14, Sanchez did not say that
he went to Jose’s store, that he went back to the building to get
his phone, or that he told Mendez he had nothing to do with the
fire. Sanchez said Nivea left the building, the fire started, and
then he and others ran out of the building. He was angry that
Nivea got out first. He blamed two of Mendez’s sons for the fire,
and then said Nivea started the fire. He thought it started with
gasoline.
4. Verdict and sentencing
The jury convicted Sanchez on all seven counts and found
true the special circumstances. After denying Sanchez’s motion
for new trial, the court sentenced Sanchez to five concurrent
terms of life without the possibility of parole on the murder
counts, and consecutive sentences of life imprisonment on each
of the two counts of attempted murder (Nivea and Flaco). The
court also awarded custody credits and imposed restitution, fines,
and fees.
Sanchez filed this timely appeal.
DISCUSSION
1. Juror misconduct does not require reversal
a. Post-verdict proceedings
After the jury convicted Sanchez on all counts, Sanchez
filed a petition for an order disclosing juror information. Defense
counsel had learned an alternate juror (the alternate) told two
deputy district attorneys (DAs) she ate lunch with deliberating
jurors. Counsel believed misconduct had occurred. In opposition,
the prosecutor argued the petition was based on hearsay and did
not show good cause to disclose the information. The trial court
denied the petition for disclosure without prejudice because it
was not supported by declarations.

15
 Sanchez filed a second petition, attaching an email from
DA Leslie Hinshaw stating the alternate was a civilian employee
of the sheriff’s department who provided security on the DAs’
floor. DA Hinshaw knew the alternate had been on jury duty,
and when she saw her back at work and talking to DA Jane
Brownstone, she asked if the case was over and what kind of
case it was. The alternate replied it was a 2016 arson with five
decedents, and the jury convicted, but: “ ‘Jurors are so retarded
though. They’re so retarded. They were initially hung 7-5, and
I was like, “We need to all have lunch together.” ’ ” At lunch, she
told the other jurors about the kill zone and that Sanchez did it.
The jurors went back to deliberating, hung 10-2, and finally
convicted. DA Hinshaw told the alternate she wished she hadn’t
shared that, and she and DA Brownstone walked away.
DA Brownstone’s email confirmed the alternate was
assigned to the security desk in her lobby. The alternate
volunteered the jury was “retarded,” was hung 5-7 or 7-5, and
said: “I was like we need to go to lunch and I explained to him
how this guy basically created a kill zone.” DA Brownstone
asked if the alternate had been substituted in to deliberate.
When she answered she had not, the DAs ended the conversation,
believing the alternate might have inadvertently disclosed
juror misconduct.
The trial court found good cause to set a hearing on the
second petition, and sent notice to all the jurors and alternate
jurors. At the initial hearing, the alternate testified she went to
lunch with the other alternate jurors, but she did not remember
going to lunch with other jurors. No juror ever told her of a split,
and she did not recall sharing that information with any DAs,
or saying the jury was “retarded” and she needed to go to lunch

16
with them. She did not remember speaking to any deliberating
jurors or to the DAs.
DA Brownstone testified she did not ask the alternate
how she knew the jury was split. She later spoke with her
superior because she was concerned. DA Hinshaw testified she
thought the alternate’s statement that she talked to other jurors
about the kill zone meant the alternate told them Sanchez was
guilty. Afterwards she told DA Brownstone the alternate juror
“had potentially spoken to deliberating jurors during trial” at
lunchtime, and then the jurors returned to deliberating. This
was misconduct, so DA Brownstone alerted her supervisor.
The trial court stated it was not ready to rule whether
misconduct had occurred, but would only decide whether to
disclose juror identifying information. The court could not tell
whether the alternate went to lunch or was exaggerating her
role in the conviction, but found the DAs were credible. “I cannot
conclude that anything actually did happen, but I do find that
we need to determine whether or not anything happened.”
The court set a further hearing to question all the jurors.
b. Juror testimony
On July 19, 2019, the trial court questioned six jurors
under oath one by one, outside the presence of the others.
Sanchez had been tased after getting into a fight downstairs,
and was not present. All six jurors testified they did not
remember having lunch with the alternate or any other contact
during deliberations, did not discuss the case outside the jury
room, and did not know of another juror who did so.
The court held another hearing a month later with all
but one of the remaining jurors. Sanchez was present. Four
jurors testified they had no contact with the alternate during

17
deliberations, and knew of no other jurors who had contact with
the alternate or discussed the case outside the jury room.
Juror No. 2 had been an alternate juror (No. 36) and
was substituted onto the regular panel during trial. After
deliberations began, she continued to have lunch with the two
remaining alternate jurors at the park or the farmer’s market.
A group of three to five jurors had always gathered to go
to lunch and talk. Before deliberations began, they went to the
farmer’s market, where the alternate was adamant that Sanchez
was “guilty, guilty, guilty.” “It was like her mind was made up.”
Asked if this continued during deliberations, Juror No. 2 replied:
“I think so. I mean, I don’t—you know. I just kind of kept my
distance with her.” The alternate was “chitchatting” and saying:
“ ‘[t]his is a waste of time,’ ” and “ ‘[h]e’s guilty.’ ” The alternate
said things like: “ ‘I’m in the building.’ ‘I know.’ ‘I know.’ ”
It could have been on a Thursday before deliberations began;
Juror No. 2 could not remember.
The prosecutor pointed out closing argument ended on
Wednesday before lunch, and deliberations began after lunch.
The only lunch period during deliberations would have been the
next day, Thursday, and at 1:31 p.m. that day the jury buzzed
that they had reached a verdict. Juror No. 2 testified she could
not remember whether they went to lunch at the farmer’s market
on the Thursday during deliberations. “I’m not 100 percent.
It wouldn’t surprise me if it was. Do you know what I mean?
I’m not going to say 100 percent yes. It’s like 60 percent yes,
40 percent no.” Asked again if they had lunch together after
deliberations began, the juror said: “I wouldn’t be surprised.
Put it that way.” Juror No. 2 continued: “I don’t know. I mean,
I’m not 100 percent sure. Just based on her personality how

18
she was all the time, it was just set in stone. I mean, it could
have come up.” Juror No. 2 did not remember whether the
earlier vote splits (which tapered over time toward guilty)
had been discussed during a lunch with the alternate present.
The jurors who held out for innocence were not at the lunch.
The alternate never discussed specific facts or theories,
such as the “kill zone.” She would just plop herself down and
say this was ridiculous and a waste of time, because “ ‘[h]e’s
guilty already.’ ” The alternate’s views did not in any way
affect Juror No. 2’s deliberations or come up in the jury room.
Juror No. 31, the other alternate juror, testified he had
lunch with four or five jurors, including Juror No. 2 and the
alternate, on the Thursday after deliberations began. The jurors
talked about how many more days they had to be there. Juror
No. 31 heard nothing about a numerical split and did not hear
the alternate give her opinion. When Juror No. 31 and the
alternate were on their own on Wednesday before deliberations
began, the alternate said she would find Sanchez guilty, but said
nothing specific about the case. The alternate never mentioned
talking to the deliberating jurors. Juror No. 31 never heard
anything about how the votes were going.
The last juror testified on September 12, 2019, with
Sanchez present. The juror had no contact with the alternate
jurors once deliberations began, knew of no deliberating jurors
having such contact with alternate jurors, heard no deliberating
juror say they had discussed the case during the trial with
anyone outside the jury, and heard no new information about
the kill zone.

19
 c. Motion for new trial
Sanchez filed a motion for new trial, arguing the alternate
knew about the vote splits, and must have gotten the information
from “a deliberating juror who broke his/her oath.” As no juror
admitted to disclosing the information, “the jurors are lying to
the court. Lying about ‘the lunch,’ lying about revealing how
they were divided, lying about their inappropriate conversations
outside of the deliberation room about theories, evidence, and
their opinions.” The DAs were reliable, and the alternate lied
when she said she did not remember telling the DAs about
the deliberations. Juror misconduct included the alternate’s
interaction with the deliberating jurors; the deliberating jurors
sharing information about the vote splits and theories of liability;
and the alternate’s use of her “elevated status” protecting
prosecutors to intimidate and influence the other jurors. The
easy way out would be to believe the jurors’ sworn testimony
they had not heard anything from an outside source or relayed
information about deliberations. But something improper
occurred and the jury was covering it up.
In opposition, the prosecution argued there was no
competent evidence of juror misconduct. While the content
of the alternate’s statements was admissible to show overt
misconduct, under Evidence Code section 1150, subdivision (a),
the statements were not admissible to show an effect on the
jurors’ subjective mental processes. If the court decided the
statements were misconduct, any presumption of prejudice
was rebutted as there was no showing the jury discussed the
alternate’s statements in the jury room.
Sanchez waived his presence at the hearing on the new
trial motion. His counsel argued the alternate must have learned

20
about the vote split sometime between Wednesday afternoon and
lunchtime on Thursday. Although the alternate and the jurors
testified under oath they did not talk about the split, the trial
court should “rely on its gut, experience” despite the jurors’
“complete denials” that they had improper conversations with
or were influenced by the alternate. The alternate was in a
position of authority and the other jurors could believe she had
inside information. The prosecution had the burden to prove
that the alternate did not get the information about the vote split
from the deliberating jurors.
The prosecutor argued that, even taking as true the DAs’
testimony about their conversation with the alternate, what the
alternate described to the DAs was inconsistent with the jurors’
sworn testimony. The jurors had not been split 10-2 until after
lunch on Thursday, so if the alternate had inside information
about the deliberations, it came from a conversation after the
verdict. Only Juror No. 2 testified she heard the alternate’s
opinions, and she denied ever discussing those opinions
during deliberations. No prejudice occurred, because it
was not substantially likely one or more deliberating jurors
was actually biased against Sanchez.
The trial court found the alternate committed misconduct
when during the trial she repeatedly insisted Sanchez was guilty.
The court had repeatedly instructed the jury not to form or
express an opinion.
But the extent of the misconduct, and its impact, were
a different issue. The jury started deliberations after lunch on
Wednesday, sent a note at the end of the day, and were released
at 4:15 p.m. The jurors returned Thursday morning to resume
deliberations. At 10:45 a.m. they heard the readback they had

21
requested. The readback ended at 10:56 a.m. and they resumed
deliberations. At 11:40 a.m., they submitted a second question
and broke for the noon hour. They returned at 1:41 p.m. and
heard a second readback. At 1:42 p.m. they resumed
deliberations, and at 2:06 p.m. they reached a verdict.
It was not clear whether the alternate accurately described
the vote split. None of the jurors testified they discussed any
split with the alternate. They would have had very little time
or opportunity to do so. There was no evidence of communication
such as texts between the jury and the alternate. The jurors
testified they did not discuss any of the alternate’s opinions
during deliberations.
The only deliberating juror who testified the alternate
shared her opinions was Juror No. 2. While other jurors might
have been present, they may not have heard the conversation.
The alternate’s credibility was “seriously in question,”
and the court did not believe events happened as the alternate
described them to the DAs. No evidence showed the jurors
and the alternate discussed the facts of the case during the trial
or during deliberations. The holdout jurors were not at the
Thursday lunch. Some jurors testified they did not sit together
at the Thursday farmer’s market, and nothing from that lunch
was shared with jurors who were not present. Juror No. 2 was
credible, and her testimony was borne out by the other jurors.
The court concluded the alternate’s opinions were not
shared or communicated during deliberations. The misconduct
did not affect the jury’s verdict and Sanchez was not prejudiced.
The case against him was “rather strong” and supported by
“a tremendous amount of evidence.” The jury quickly reached

22
a verdict after the readback, and “I don’t believe they reached
a verdict based on what transpired at that lunch.”
2. The alternate’s misconduct did not prejudice Sanchez
“A criminal defendant is constitutionally entitled to an
unbiased, impartial jury. [Citation.] ‘Jurors must be admonished
not to “form or express any opinion about the case until the cause
is finally submitted to them.” (§ 1122, subd. (b).) Prejudgment
“constitute[s] serious misconduct” [citation], raising a
presumption of prejudice. The presumption is rebutted “if the
entire record . . . indicates there is no reasonable probability of
prejudice, i.e., no substantial likelihood that one or more jurors
were actually biased against the defendant.” ’ ” (People v. Fayed
(2020) 9 Cal.5th 147, 174.) We review independently the mixed
question of law and fact whether jury misconduct was prejudicial.
(People v. Weatherton (2014) 59 Cal.4th 589, 598.)
“Jury misconduct serious and extensive enough to impair
the fairness of the trial or deliberations may warrant granting
a new trial motion. [Citations.] Where the trial court has
heard evidence and made findings of historical fact regarding
the alleged misconduct, we accept those findings if they are
supported by substantial evidence.” (People v. Flinner (2020)
10 Cal.5th 686, 755-756.) We do not reweigh the trial court’s
credibility determinations when supported by substantial
evidence. (People v. Merriman (2014) 60 Cal.4th 1, 100.)
A trial judge who observes and speaks with a juror gathers
from the juror’s confidence and demeanor valuable information
that does not appear in the appellate record. (Id. at p. 101.)
We agree with the trial court that the alternate committed
misconduct when she expressed her belief in Sanchez’s guilt to
Juror No. 2, the only deliberating juror who testified she heard

23
the alternate’s opinions. Juror No. 2 was also the only juror
who heard the alternate say she worked in the building (which
Sanchez characterizes as claiming special knowledge). We do
not second-guess the trial court’s conclusion that Juror No. 2
was credible when she testified under oath that none of the
alternate’s statements in any way affected her deliberations,
or came up in the jury room. Juror No. 31, the other alternate,
testified he heard the alternate express her opinion when they
were alone before the start of deliberations. Juror No. 31 and
the alternate did not participate in the deliberations. Although
Sanchez’s new trial motion repeatedly accused all the jurors
of lying about their own and the alternate’s conduct, we repeat
we do not reweigh the trial court’s credibility determinations.
Defense counsel urged the trial court to “rely on its gut,
experience” despite the jurors’ testimony they did not have
improper conversations and were not influenced by the alternate.
But the trial court’s instinct and experience led it to believe the
jurors’ sworn testimony. Each juror testified outside the hearing
of the others, and substantial evidence supports the court’s
decision to believe them.
Sanchez argues another basis for a finding of misconduct:
one or more of the deliberating jurors must have shared the
vote counts with the alternate, who then repeated them to the
DAs. He argues the court failed to ask the deliberating jurors
about the vote splits and whether they discussed the splits
with the alternate. Yet all the deliberating jurors except Juror
No. 2 testified they did not remember any contact with the
alternate after deliberations began, and did not discuss the case
with her. Juror No. 2 did not remember whether she had lunch
with the alternate on the Thursday before or after deliberations

24
began, and did not remember whether vote splits had been
discussed. And given the timeline, the 10-2 split likely was
after lunch on the Thursday during deliberations, and so the
alternate could have learned of that split only after the verdict.
Substantial evidence supports that factual finding.
Sanchez also argues once Juror No. 2 testified the alternate
said Sanchez was guilty at a lunch before deliberations began,
the court should have recalled all the other jurors to ask if
they heard the alternate’s opinions during trial. He forfeited
this claim by not asking for additional inquiry into the prejudicial
effect of the alternate’s misconduct. (People v. Bell (2019)
7 Cal.5th 70, 120; People v. Holloway (2004) 33 Cal.4th 96,
126-127.)
We have read the entire record. We agree with the trial
court’s finding that the presumption of prejudice was rebutted,
as we see no reasonable likelihood that any of the deliberating
jurors was biased against Sanchez.3
3. Sanchez’s absence during juror testimony did
not violate his constitutional rights
At the start of the July 19 hearing, the court stated:
“Mr. Sanchez got in a fight downstairs, and he was tased and
he was taken to medical to be cleared. I am not waiting for him.
I intend to proceed. [¶] This [hearing] is basically in lieu of
giving up the names and having investigators go out and take

3 The trial court also commented on the strength of the
case against Sanchez. Under some circumstances, the strength
of the evidence at trial is relevant to assessing whether jury
misconduct prejudiced the defendant. (People v. Solorio (2017)
17 Cal.App.5th 398, 408.) This was not the basis for the trial
court’s ruling, nor is it the reason we affirm.

25
declarations. He wouldn’t be present there anyway.” Defense
counsel objected that the court should wait. The court responded
it had gone to great lengths to get the jurors to come to court, and
“[w]e’ll try to get him here in a timely fashion. [¶] But if we don’t
get him here, then I intend to proceed. . . . I’m going to put them
under oath because this is in lieu of affidavits, and affidavits are
signed under penalty of perjury.” The hearing was intended to be
less intrusive for the jurors, so the court would proceed without
Sanchez.
When the court reconvened the hearing on second call at
9:30 a.m., defense counsel objected to continuing in Sanchez’s
absence and added: “[H]e should be here soon.” The court stated
the questions it had received from both counsel were extensive,
and it would focus on the issues raised at the previous hearing.
Each of the six jurors stated they did not remember having lunch
with alternate jurors during deliberations or hearing any juror
discuss the case outside the jury room.
“A criminal defendant accused of a felony has the
constitutional right to be present at every critical stage of the
trial, including during the taking of evidence.” (People v. Bell,
supra, 7 Cal.5th at p. 114.) A competent defendant may waive
that right if the waiver is knowing, intelligent, and voluntary,
and an unduly disruptive defendant may be removed from
the courtroom if after a warning by the court he continues his
disruptive behavior. (Id. at pp. 116-117.) The right to be present
exists only at critical stages of the trial, “ ‘in which a defendant’s
“ ‘absence might frustrate the fairness of the proceedings’
[citation], or ‘whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend against
the charge’ [citation].” ’ ” (Id. at p. 118.)

26
 “ ‘The defense has no constitutional right to be present at
every interaction between a judge and a juror.’ ” (United States v.
Gagnon (1985) 470 U.S. 522, 526.) Due process requires presence
“ ‘to the extent that a fair and just hearing would be thwarted
by his absence, and to that extent only.’ ” (Ibid.) Even if he
has the right to be present, a defendant has the burden to
demonstrate his absence prejudiced his case or denied him
a fair trial. (People v. Bradford (1997) 15 Cal.4th 1229, 1357.)
The hearing took place after the guilty verdicts, and was
designed to serve as a replacement for an investigator’s interview
of the jurors. Sanchez had been brought to the courthouse
to attend, but got into a fight at the courthouse just before
the hearing and had been tased. Six jurors were waiting to
be questioned, and the court proceeded with questions proposed
by both sides. Given these circumstances, we conclude the
hearing was not a critical stage of the trial at which Sanchez’s
presence was constitutionally required.
Sanchez cites Walker v. Lockhart (8th Cir. 1988) 852 F.2d
379 (Walker). Walker addressed ineffective assistance of counsel.
During the testimony of his accomplice at Walker’s trial for
capital murder, an unknown woman walked into the jury room
to get a cup of coffee, and remarked she could kill both men.
After two jurors told the court about the intrusion, the court
conducted an in camera voir dire of each juror with only counsel
present. Walker’s counsel stated he was satisfied from the jurors’
responses they would deliberate based only on the evidence,
and declined to request a mistrial. The trial continued and
the jury convicted Walker. He did not learn of the intrusion or
the voir dire until he was in prison, and eventually filed a federal
habeas petition alleging ineffective assistance based on counsel’s

27
failure to request a mistrial. (Id. at pp. 380-381.) The court
of appeals concluded counsel had made a reasoned strategic
decision. (Id. at p. 382.)
In examining Walker’s ineffective assistance of counsel
claim (based on counsel’s failure to request a mistrial), the court
stated: “We recognize Walker had a constitutional right to be
present at the in camera voir dire of the jury.” (Walker, supra,
852 F.2d at pp. 381-382.) This statement is not supported by
Supreme Court or other authority. (See United States v. Gagnon,
supra, 470 U.S. 522; Johnson v. Cullen (N.D.Cal. 2010) 704
F.Supp.2d 869, 914.) In People v. Abbott (1956) 47 Cal.2d 362,
the trial court questioned a juror in chambers with the attorneys
present over a defense objection that the examination of the
juror should take place in open court. The court then discharged
the juror in open court and denied the defendant’s motion for
mistrial. (Id. at pp. 371-372.) “It was not error to conduct the
proceedings in chambers in Abbott’s absence. . . . [I]t is settled
that the presence of a defendant is required only where it has a
reasonably substantial relation to the fullness of his opportunity
to defend against the charge. [Citations.] The absence of Abbott
during the proceeding in chambers could not have affected his
right to a fair trial.” (Id. at p. 372.)
Even if the hearing were a critical stage of the proceedings,
Sanchez has not demonstrated prejudice to his full ability to
defend against the murder and attempted murder charges
of which he already had been convicted. The hearing was one
of four on the juror misconduct issue. Sanchez was present at
the hearing when the alternate and the DAs were questioned,
and was present at the third and fourth hearings when the other
jurors were examined. His argument that he was necessarily

28
prejudiced because his presence would elicit more truthful
testimony presumes rather than demonstrates prejudice.
4. Sufficient evidence supported the verdict on count 7
and the instruction given does not require reversal
In moving for a new trial, defense counsel argued
insufficient evidence supported Sanchez’s conviction on count 7
(attempted murder of Flaco). No evidence showed Sanchez
knew Flaco was in the room when he allegedly lit the fire, and
under People v. Canizales (2019) 7 Cal.5th 591 (Canizales), the
prosecution was required to prove Sanchez “want[ed] and [was]
willing to kill everyone [Flaco] in order to kill the target [Nivea].”
The prosecutor responded that Sanchez had stayed in the
building for a while, and when he set the trash on fire outside
the door to what he knew to be Flaco’s room, Sanchez also knew
anyone inside was in the zone of fatal harm.
The court concluded the evidence supported a finding that
in order to kill Nivea, Sanchez intended to kill everyone in Flaco’s
room by setting two fires in such a way that no one inside could
escape. The jury could draw the reasonable inference that
Sanchez knew that Flaco was in his room with Nivea.
On appeal, Sanchez argues the “kill zone” doctrine requires
that the only reasonable inference from the evidence be that
Sanchez intended to kill everyone in the room to guarantee the
death of the primary target. Here there was another reasonable
inference—Sanchez intended to kill only Nivea, but in carrying
out that intent he callously and recklessly endangered others.
We disagree.
In Canizales, decided after the guilty verdicts but before
Sanchez was sentenced, the California Supreme Court held:
“[T]he kill zone theory for establishing the specific intent to kill

29
required for conviction of attempted murder may properly
be applied only when a jury concludes: (1) the circumstances
of the defendant’s attack on a primary target, including the type
and extent of force the defendant used, are such that the only
reasonable inference is that the defendant intended to create
a zone of fatal harm—that is, an area in which the defendant
intended to kill everyone present to ensure the primary target’s
death—around the primary target and (2) the alleged attempted
murder victim who was not the primary target was located
within that zone of harm.” (Canizales, supra, 7 Cal.5th at
p. 607.) “The use or attempted use of force that merely
endangered everyone in the area is insufficient to support a
kill zone instruction.” (Id. at p. 608.) Relevant circumstances
include the type of weapon used, the distance between the
defendant and the alleged victim, and the alleged victim’s
proximity to the primary target. (Id. at p. 607.) We examine
the record to determine whether it contains substantial evidence
to support the inference that Sanchez intended to kill everyone
in Flaco’s room in order to kill Nivea. (Id. at p. 609; People v.
Cerda (2020) 45 Cal.App.5th 1, 16 (Cerda), review granted
May 13, 2020, S260915.)
The scope of the kill zone is the area in which the
defendant intended to kill everyone, not merely the area in which
other people were at risk. (Cerda, supra, 45 Cal.App.5th at
p. 19.) Whether the nonprimary target’s egress was constricted
is a relevant consideration. (In re Rayford (2020) 50 Cal.App.5th
754, 780.) And “ ‘[w]hether or not the defendant is aware that
the attempted murder victims were within the zone of harm
is not a defense, as long as the victims were actually within
the zone of harm.’ ” (Cerda, at p. 20.) While the defendant’s

30
awareness of the victim’s location is relevant, it is not dispositive
as it might be when the magnitude of the attack is limited, as
when a shooter fires a single shot. (Ibid.)
The prosecution presented evidence that after Sanchez
fought with Nivea she went into the hallway, where Flaco
let her into his room next door and closed and locked the door.
While Sanchez continued to scream outside the door that he
would kill Nivea, she and Flaco talked for some time. Shortly
after they no longer heard Sanchez screaming, they realized
the pile of trash outside the door had been set on fire. The room’s
exit to the hall was blocked by the flames. Bars on the window
prevented their escape until a firefighter sawed through the bars
and helped them down a ladder.
Substantial evidence supported only one reasonable
inference: Sanchez intended to kill everyone in Flaco’s room
when he set the fire just outside the locked door. Sanchez knew
his primary target, Nivea, was inside the room, and although
the evidence also supports the inference he knew Flaco was
inside, it is enough that Flaco was trapped inside the room
with Nivea. And Sanchez telegraphed his intent. Both Nivea
and Flaco heard him yelling he was going to kill Nivea. Mendez
testified she heard Sanchez yelling that he hoped someone he
didn’t like burned and died. She told the 911 operator Sanchez
said he had to kill everyone inside the building. Although
Sanchez argues that setting fire to a commercial building creates
a risk too unpredictable to justify a kill zone instruction, here
the prosecution argued the zone of danger was Flaco’s room (and
Sanchez was not charged with the attempted murder of Muse,
who escaped the fire through the window of another room in
the burning building). It would be unreasonable to infer that

31
Sanchez intended to kill only Nivea and not anyone else inside
Flaco’s room. The evidence supported a guilty verdict on count 7.
Sanchez argues even if a kill zone instruction was
supported by the evidence, the trial court erred when it gave
CALCRIM No. 600, which is “incorrect and inadequate.”4
The instruction was taken from CALCRIM No. 600:
“A person may intend to kill a specific person
or victims and at the same time intend to kill
everyone in a particular zone of harm, or a
kill zone. [¶] In order to convict the defendant
of the attempted murder of Robert Fernandez,
also known as Flaco, the People must prove
that the defendant not only intended to kill
Anthony Roberts [Nivea], but also either
intended to kill Robert Fernandez or intended
to kill everyone within the kill zone. [¶] If you
have a reasonable doubt whether the defendant
intended to kill Robert Fernandez or intended
to kill Anthony Roberts by killing everyone in
the kill zone, then you must find the defendant
not guilty of attempted murder of Robert
Fernandez.”
Sanchez cites Canizales and In re Rayford, but in both
cases (unlike here), the evidence was found insufficient to support
a kill zone instruction. Canizales expressly declined to invalidate
the standard CALCRIM No. 600, because the evidence did not
support the instruction. (Canizales, supra, 7 Cal.5th at pp. 597-

4 Sanchez did not object to the instruction, but the jury
was instructed and returned its verdicts before Canizales was
decided.

32
598.) The Court added that “when a kill zone instruction is
legally warranted and in fact provided, the standard instruction
should be revised to better describe the contours and limits of
the kill zone theory as we have laid them out here.” (Id. at
p. 609.) In Rayford, the instruction defined the kill zone only
as “ ‘a particular zone of risk,’ ” and did not tell the jury that
the defendants must have intended to kill the other individuals
in the kill zone, instead allowing conviction if they intended
merely to expose the others to a risk of harm. (Rayford, supra,
50 Cal.App.5th at pp. 782-783.) Here the instruction did tell the
jury Sanchez must have intended to kill Flaco as well as Nivea,
not merely expose Flaco to harm.
Even if CALCRIM No. 600 as given were invalid when
(as here) sufficient evidence supports a kill zone instruction,
in this case the error is harmless beyond a reasonable doubt.
If a court instructs the jury on an invalid theory as well as a
valid theory, reversal is not required if after examining the
entire record, it is clear beyond a reasonable doubt that jurors
would have reached the same verdict. (People v. Aldemat (2019)
8 Cal.5th 1, 13.) The jury was instructed on the valid theory that
it could find Sanchez guilty of attempted murder if he specifically
intended to kill Flaco. It is clear beyond a reasonable doubt
that the jury would have convicted Sanchez of attempted murder
because he intended to kill Flaco. He set fire to a big pile of
trash in the second-floor hall directly outside the door of Flaco’s
adjoining room; he set another fire in another area of the hall;
and Mendez told the operator Sanchez said he had to kill
everyone in the building. Given the evidence that Sanchez set
a blaze in the hall blocking anyone from exiting Flaco’s second-

33
story, locked room, even without a kill zone instruction, the
jurors would have reached the same verdict of guilty on count 7.
5. The trial court’s evidentiary rulings were not
an abuse of discretion
Sanchez argues the trial court abused its discretion when
it excluded evidence of prior fires in the building, and when it
admitted the surveillance video into evidence.
a. Prior fires
In its trial brief, the prosecution noted witness statements
that there had been three previous fires at the building, and
“[e]vidence of any prior fires at that location are not relevant.”
At a hearing, defense counsel argued the prior fires were
relevant, anticipating the arson investigator would “say that
the homeless population is more careless.” The prosecutor
argued prior fires were not relevant. The defense had offered
as a witness the building manager, who would testify that shortly
before the fire, a male Hispanic had approached him with an offer
to help burn the building down. The court ruled that more was
required to show third-party culpability, and agreed to allow the
defense to ask the investigator if the likelihood of accidental fire
was greater when homeless people were staying in the building,
and until the court heard the answer it would not decide whether
any previous fires were relevant to the cause of the June 13 fire.
During trial, LAFD Chief Moore testified that homeless
people starting fires was not a concern. Later, the defense
renewed its argument about the fires and asked to recall
Chief Moore. Defense counsel also asked the arson investigator
Jimenez whether homeless people could be careless with
cigarettes and cause a fire, and the court sustained a relevance
objection by the prosecutor.

34
 Sanchez argues that fires were “shockingly common”
in the building and the court violated the law and the federal
constitution when it excluded evidence of earlier fires, because
that evidence would make the jury more likely to conclude
someone else had started the June 13 fire.
Third-party culpability evidence is admissible if relevant
and if its probative value is not substantially outweighed by risk
of undue delay, prejudice, or confusion. (People v. Turner (2020)
10 Cal.5th 786, 816.) “[A]dmissible evidence of this nature points
to the culpability of a specific third party, not the possibility that
some unidentified third party could have committed the crime,”
and there must exist direct or circumstantial evidence linking
the third person to the actual perpetration of the crime. (Id. at
pp. 816-817.) Review is for abuse of discretion. (Id. at p. 817.)
The court did not abuse its discretion when it excluded
evidence of prior fires intended to show someone else set the
June 13 fire. No direct or circumstantial evidence linked any
specific third party to the fire. And the court’s “reasonable
application of the rules of evidence to exclude irrelevant and
potentially misleading information did not deprive defendant
of his constitutional rights.” (People v. Turner, supra, 10 Cal.5th
at p. 818.)
b. Surveillance video
Out of the presence of the jury, Detective Carrillo testified
that on June 21, 2016, he and his partner obtained surveillance
video of the alley next to the building. The date stamp on
the screen was correct, but the time was 42 minutes ahead.
Over defense objection, the trial court admitted the video,
because the time differential went to its weight rather than
admissibility. During rebuttal, Detective Carrillo testified the

35
video from the day of the fire (obtained a week later) did not show
Sanchez in the alley when he had claimed to be coming back from
Jose’s store, and explained the 42-minute time differential to the
jury. The jury saw two exhibits of still images from the video.
Sanchez argues there was no adequate foundation for the
evidence because Detective Carrillo obtained the video eight days
after the fire, and had no personal knowledge how the camera
recorded activity in the alley on the day of the fire.
No “elaborate showing of accuracy is required” for
admission of automatically produced photographs and
contemporaneously recorded data. (People v. Goldsmith (2014)
59 Cal.4th 258, 272.) Even perceived inaccuracies and errors
go to the weight of the evidence, not its admissibility. (Ibid.)
No greater showing of authentication (such as expert testimony)
is required to admit digital images simply because they
theoretically can be manipulated. (Ibid.; People v. Tran (2020)
50 Cal.App.5th 171, 191.) The jury could decide what weight
to give the testimony and the photo stills, given Detective
Carrillo’s description of when he obtained the surveillance video
and his explanation of the time display differential. No abuse
of discretion occurred.
6. Sanchez has waived his claim of prosecutorial
misconduct and his counsel’s failure to object
was not ineffective assistance
In closing argument, defense counsel told the jury the fire
department was more concerned with putting out the fire than
with preserving evidence. He argued two photographic exhibits
showed a cigarette lighter and a gas can at the scene, which
suggested someone else may have started the fire, and asked why
that evidence was not preserved. In rebuttal, the prosecutor said:

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 “He pointed to something in that photograph,
he said see that’s a lighter. We don’t know
that. And in the jury instruction you’re
instructed not to speculate. No one testified
that was a lighter. And you’re not allowed
to speculate as to what it is, it’s not allowed.
You’re only allowed to analyze actual evidence
based upon the testimony that came out of
the witnesses in court. And regarding the can,
it could or could not be a gas can. Could be
something else. Potentially a detergent
container. We don’t know. And that’s the
whole point. You can’t speculate.”
Defense counsel did not object.
Sanchez now argues the prosecutor committed misconduct
by telling the jurors they could not independently evaluate the
photographic evidence. Making a timely and specific objection
and requesting the jury be admonished “is a necessary
prerequisite to preserve a claim of prosecutorial misconduct
for appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.)
He has forfeited this claim.
Sanchez argues counsel’s failure to object was ineffective
assistance. Ineffective assistance requires prejudice which
“ ‘so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced
a just result.’ ” (People v. Kipp (1998) 18 Cal.4th 349, 366.)
The prosecutor’s statement that the jurors could not speculate
about what they saw in the photographs without witness
testimony did not make the trial fundamentally unfair. The
evidence that Sanchez set the fire was strong, including his

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own statements. The presence or absence of a lighter or gas can
after the fire was out neither proves nor disproves Sanchez’s
guilt. We see no possible prejudice.
7. Cumulative error does not require reversal
As we have found no error, we reject Sanchez’s argument
that cumulative error requires reversal.
DISPOSITION
The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

ADAMS, J.

 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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