Filed 11/29/23 P. v. Sanchez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E080429
v. (Super.Ct.No. FWV22001920)
ANGEL REY SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Corey G. Lee,
Judge. Affirmed.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Heather B. Arabarri and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1 Angel Rey Sanchez argues his trial counsel provided him with ineffective
assistance by agreeing to a response the trial court provided to a jury question. He was
charged with two counts reflecting two acts of assault by means of force likely to cause
great bodily injury when attacking his estranged biological mother. As argued, the first
was punching and kicking her on a landing outside her apartment, and the second was
pushing her down the nearby stairs after she stood up and pointed a knife at him. The jury
asked the court to “specify the two 2 counts” and whether “specific evidence pertain[ed]
to one charge vs. the other.” With the agreement of counsel, the trial court concluded the
prosecution had clearly distinguished the two acts and responded to the jury by saying
only that the two counts pertain to two different acts.
We conclude Sanchez’s claim fails for several reasons. The response to the jury’s
inquiry was legally correct. There was an evident reasonable tactical basis for agreeing to
it. And it is not reasonably probable the jury would have reached a more favorable result
if the trial court had reiterated the prosecution’s election as to which acts applied to
which count in its response. We therefore affirm the judgment.
I
FACTS
This case involves a violent episode that led to Sanchez’s conviction by a jury on
two counts of assault by means of force likely to produce great bodily injury. (Pen. Code,
§ 245, subd. (a)(4); unlabeled statutory citations refer to this code.)
2 The victim was Sanchez’s biological mother, T.E., who had lost custody of
Sanchez many years earlier, when he was around five- to seven-years old. Sanchez and
T.E. had a limited relationship.
On June 5, 2022, Sanchez went to T.E.’s apartment on Valley Boulevard in
Bloomington. There, Sanchez began drinking alcohol and became heavily intoxicated and
threw up inside her apartment. T.E. said she felt Sanchez was disrespecting her home and
feared his conduct would disturb her neighbors and cause her to lose her housing.
T.E. opened her front door and told Sanchez to leave. Sanchez threatened to attack
her and then ran forward and pushed T.E. through the door to the landing outside her
apartment. T.E. dropped to the ground to protect her body, and Sanchez began punching
and kicking her. After T.E. stood up, Sanchez threw or pushed her down the stairs, and
she rolled to the bottom.
T.E. testified that she kept a knife in the apartment to protect herself and was
holding it during the assault. She said she did not use the knife against Sanchez, but she
pointed it at him before he threw her down the stairs. She said she got up and went back
up the stairs to prevent Sanchez, who was still at the top, from going back into her home.
She said she still had the knife in her hand at that point. Sanchez told her he would leave
if she gave him the knife, which she did, and he left.
T.E. called 911 and reported the assault. A San Bernardino deputy sheriff
responded to the call and found Sanchez face down on a sidewalk outside the apartment
building. The deputy said Sanchez was covered in vomit and appeared heavily
3 intoxicated. Sanchez had scrapes on his back and finger and a cut on his nose. The deputy
said Sanchez appeared to be disoriented, unable to answer questions, and in and out of
consciousness. The deputy found T.E. “severely injured with multiple bumps, bruises,
scratches all over her face and her body.” A hospital examination found she had bruising
and abrasions on her face, hands, and back.
Sanchez testified and denied assaulting T.E. He said he went to her house because
he had been in a homeless shelter and had a job interview. He wanted a place to shower
and help buying some clothes. T.E. gave him money, and they went to a liquor store
where he bought a pint of cinnamon-flavored whiskey and clothes. He said drinking that
amount normally would put him to sleep, but instead it put him into a state he had never
experienced before. He said he passed out and woke with a cut on his finger and marks
on his face. He said he believed T.E. had laced his drink. Sanchez admitted he did not
have a good relationship with his mother but said he would never assault her.
In instructing the jury, the trial court used CALCRIM No. 875 for the assault in
count one and CALCRIM No. 875.1 for the assault in count two. As to the first count, the
court instructed the jury, “The defendant is charged in Count One with assault with force
likely to produce great bodily injury in violation of Penal Code section 245. [¶] To prove
that the defendant is guilty of this crime, the People must prove that: [¶] . . . The
defendant did an act that by its nature would directly and probably result in the
application of force to a person, and [¶] . . . The force used was likely to produce great
bodily injury; [¶] . . . The defendant did that act willfully; [¶] . . . When the defendant
4 acted, he was aware of facts that would lead a reasonable person to realize that his act by
its nature would directly and probably result in the application of force to someone; [¶]
AND [¶] . . . When the defendant acted, he had the present ability to apply force likely to
produce great bodily injury to a person.” The instruction for count two was identical but
added a fifth element—that “[t]he defendant did not act in self-defense.” The court also
instructed that simple assault is a lesser included offense for each count and reiterated
that the defense of self-defense applied only to count two. No instruction specified what
acts related to each count.
In closing arguments, the prosecution elected Sanchez’s punching and kicking
T.E. as the assault for count one and the act of throwing T.E. down the stairs as the
assault for count two. As to count one, the prosecutor said the evidence was that Sanchez
“began to beat her. He kicked her. He punched her. . . . [¶] Therefore, that’s the act. The
kicking, the punching, that by its very nature would directly and probably result in force.”
As to count two, the prosecutor said, “[W]hat is Count 2? Count 2, you are going to be
presented with your packet that includes 875.1. It adds one additional element. The
defendant did not act in self-defense. . . . [¶] Count 2 is the stairs. . . . after Count 1, after
kicking her, after punching her, at some point they got up, and he lifted her up, and he
threw her down the stairs.” The prosecution also distinguished the two counts by arguing
T.E.’s knife never came out before count 1 and therefore, Sanchez’s self-defense claim
applied only to count 2.
5 Defense counsel made the same distinction in her closing argument. Speaking of
inconsistencies in T.E.’s testimony, counsel said, “She says that the first part of what
happened, Count 1, is that Mr. Sanchez kicks and punches her. But her injuries don’t
quite line up with that; right? . . . [¶] Her injuries are consistent with falling down the
stairs and scraping. How many times did we hear about scraping? . . . So her injuries are
consistent with being pushed down the stairs. But there is no evidence whatsoever with
the Count 1 allegation, which is the kicking and punching. Remember, there’s two
different counts. Count 1 we have the initial kicking and the punching, and Count 2 is
pushing down the stairs.” Defense counsel similarly clarified that on “the allegation of
kicking and punching, we’re not claiming self-defense. But the allegation of pushing
down the stairs, we are claiming self-defense.”
In argument, defense counsel questioned why there were two separate counts.
“Now, why are there two counts? Okay. This is a question that you should ask
yourselves. Why? Why did the People charge this as two separate counts, and where do
we draw the line? Why not charge him with one charge for kicking, and one count for
punching, and one count for pushing? Why not just charge him with five or ten counts? If
you believe it is excessively charged, that can be your determination as a jury. This is one
continuing line of conduct.” The prosecution objected that this argument misstated the
law, and the parties had an unreported bench conference, after which defense counsel
moved on to another topic. The court later put on the record that it had sustained the
6 objection because it was improper to ask jurors to consider charging decisions, which are
not evidence.
Early in their deliberations, the jury asked the court to “Please specify the 2
counts. Is specific evidence pertaining to one charge vs. the other[?]”The trial court
discussed possible responses with the prosecutor and an attorney standing in for
defendant’s trial counsel. The trial court included defendant’s trial counsel by telephone.
The parties agreed not to “clarify that one charge was kicking and punching versus the
second charge related to the stairwell incident” because “it was pretty clear during
closing arguments that Count 1 was pertaining to the kicking and punching, and Count 2
was pertaining to the stairwell incident.” Instead, the court decided to say only, “ ‘Counts
1 and 2 pertain to two different acts.’ Leave it at that, and send it back.”
After receiving this answer, the jury requested a read-back of T.E.’s testimony
leading up to the point where she was questioned about the knife. The jury then asked for
a read-back of Sanchez’s testimony. When those read-backs were completed, the jury
asked, “Where did [T.E.] testify to being located before she was pushed/thrown down the
stairs. She answered numerous times.” The court responded by referring the jury to the
second paragraph of CALCRIM No. 200, which instructs, “You must decide what the
facts are. It is up to all of you, and you alone, to decide what happened, based only on the
evidence that has been presented to you in this trial.” The jury responded by requesting a
read-back of T.E.’s testimony about her location before being thrown down the stairs.
Ten minutes after that read-back, the jury returned guilty verdicts on both counts.
7 The trial court sentenced Sanchez to a total state prison term of four years—a
middle term three-year sentence on count one and a consecutive one-year sentence (one-
third the middle term) on count two.
II
ANALYSIS
Sanchez’s ineffective assistance of counsel argument is viable only if the trial
court gave an insufficient answer to the jury’s request that he claims counsel should not
have agreed to. The jury asked the trial court to “specify the 2 counts” and instruct 1 whether there “[i]s specific evidence pertaining to one charge vs. the other.” Sanchez
argues the court’s answer that the two counts “pertain to two different acts,” allowed the
jury to find him guilty of both counts based on only the acts of punching and kicking. He
says the court should have confirmed the prosecution’s closing-argument election that
count one related to his acts of punching and kicking while count two related to his act of
pushing or throwing the victim down the stairs. However, it is generally sufficient for the
prosecution to “make an election by ‘tying each specific count to specific criminal acts
elicited from the victim’s testimony—typically in opening statement and/or closing
argument.” (People v. Brown (2017) 11 Cal.App.5th 332, 341 (Brown).)
1 Sanchez concedes that because his trial attorney agreed to the trial court’s answer, he has forfeited a direct challenge to the trial court’s decision on appeal. (People v. Thornton (2007) 41 Cal.4th 391, 427; see also (People v. Harris (2008) 43 Cal.4th 1269, 1317 [invited error by proposing an answer the court gave the jury.]. He therefore focuses his claim on ineffective assistance.
8 To establish ineffective assistance of counsel, Sanchez must show (1) deficient
performance by trial counsel that fell below an objective standard of reasonableness
under prevailing professional norms, and (2) a reasonable probability he would have
obtained a more favorable result but for his trial counsel’s alleged deficient performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687-688.)
In deciding whether performance was deficient, we “give great deference to
counsel’s tactical decisions.” (People v. Holt (1997) 15 Cal.4th 619, 703.) Where the
record does not show why counsel acted or failed to act in a certain way, we will reject
the claim “unless counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation.” (People v. Kraft (2000) 23
Cal.4th 978, 1069.) Here, the record does not disclose trial counsel’s basis for agreeing to
the response to the jury question, though the trial court indicated agreement with its
rationale that the prosecution’s election in closing argument was sufficient for the jury.
With these standards in mind, we conclude Sanchez’s ineffective assistance claim
fails for several reasons. First, he cannot show his counsel’s agreement with the trial
court fell below an objective standard of reasonableness. When a jury sends out a
question, the court is presented with the statutory obligation “to provide the jury with
information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936,
985.) Under “section 1138 the court must attempt ‘to clear up any instructional confusion
expressed by the jury.’ ” (People v. Giardino (2000) 82 Cal.App.4th 454, 465.) “This
means the trial ‘court has a primary duty to help the jury understand the legal principles it
9 is asked to apply. [Citation.] This does not mean the court must always elaborate on the
standard instructions. Where the original instructions are themselves full and complete,
the court has discretion under section 1138 to determine what additional explanations are
sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments
diverging from the standard are often risky.’ ” (People v. Solis (2001) 90 Cal.App.4th
1002, 1015, quoting People v. Beardslee (1991) 53 Cal.3d 68, 97, italics added.) Sanchez
argues the jury’s inquiry revealed confusion about the prosecution’s election, which the
trial court was required to clear up in its response.
There is no requirement that the trial court build a prosecutor’s election into jury
instructions. In People v. Jones (1990) 51 Cal.3d 294, our Supreme Court explained that
where the evidence discloses more acts than offenses charged, “[e]ither the prosecutor
must select the acts relied on to prove the charges, or the jury must be given an
instruction that it must unanimously agree beyond a reasonable doubt that the defendant
committed the same specific criminal act.” (Id. at p. 307.) This holding has come to be
known as the “ ‘either/or’ rule.” (People v. Gear (1993) 19 Cal.App.4th 86, 90.) If the
prosecution had not made an election in this case, the trial court would have been
required to tell the jury that each juror must agree on the act or acts which constitute each
offense. (People v. Hawkins (2002) 98 Cal.App.4th 1428, 1454-1455.) Such an
instruction would have precluded the jury from convicting Sanchez under different
factual theories. But no such protection is necessary when the prosecutor in “argument
elect[s] what conduct by defendant amount[s] to the crime charged.” (Id. at p. 1455.)
10 Here, the prosecution made an election, so no unanimity instruction was required,
and the instructions were proper. Indeed, the closing arguments of both the prosecution
and the defense left no room for doubt that the focus of count one was Sanchez’s
punching and kicking T.E., whereas the focus of count two was his pushing or throwing
her down the stairs. In closing argument, the prosecutor said of count one “that’s the act.
The kicking, the punching,” and said of count two “after Count 1, after kicking her, after
punching her, at some point they got up, and he lifted her up, and he threw her down the
stairs.” Defense counsel reiterated the distinction in the same terms. “Count 1 we have
the initial kicking and the punching, and Count 2 is pushing down the stairs.”
In addition, the inclusion of a self-defense element only as to count two, and the
argument about that element, further made clear which acts related to which counts. The
prosecution argued the self-defense claim applied only to count two because T.E. testified
that she showed Sanchez the knife after the punching and kicking incident. Defense
counsel agreed, arguing that on “the allegation of kicking and punching, we’re not
claiming self-defense. But the allegation of pushing down the stairs, we are claiming self-
defense.” (See People v. Brugman (2021) 62 Cal.App.5th 608, 629 [“[T]he prosecutor’s
election could not have been more clear. She twice informed the jury, in simple language,
that count 5 was based on the incident in which Brugman held a gun to C.’s head and said
he would ‘smoke’ her. Consistently, the only evidence the prosecutor discussed in
arguing that the elements of that count were established was the evidence relating to that
same incident”].) Since the prosecution made an election that was so clearly presented,
11 we conclude the instructions to the jury were full and complete and complied with the
either/or rule.
Sanchez argues the jury’s request that the court “specify the 2 counts” and indicate
whether “specific evidence pertain[ed] to one charge vs. the other” shows they were
confused about the election. Assuming the jury was asking the court to clarify the
election (rather than direct them to evidence relevant to each act, which would not have
been appropriate) we conclude the trial court did not abuse its discretion in determining
that no such clarification was necessary. The trial court stated: “So after discussing
whether we should clarify that one charge was kicking and punching versus the second
charge related to the stairwell incident, we contemplated basically being that specific. But
after further discussion and also communication with [trial counsel by phone], the
Court’s view is that it was pretty clear during closing arguments that Count 1 was
pertaining to the kicking and punching, and Count 2 was pertaining to the stairwell
incident. [¶] Because it was pretty clear at this point, the Court is suggesting just
language that says Counts 1 and 2 pertain to two different acts. And then see what other
questions they come up with.” In short, the trial court—and the parties—concluded the
election was so clear in specifying the two acts forming the basis of the two counts that
no clarification was required. However, the trial court answered in a way that specifed
Sanchez could not be convicted on both counts for the same act. We conclude this
decision by the trial court was well supported and it was not an abuse of discretion to
decline to offer further clarification of the election.
12 For the same reason, we conclude Sanchez’s trial counsel did not perform in an
objectively unreasonable fashion by agreeing to that response. The instructions as given
were compliant with the law because the prosecution made such a clearly demarcated
distinction between the acts. The court was not required to reiterate the election and,
because the election was so clear, reiterating it was unnecessary. Trial counsel did not
perform deficiently by either suggesting or agreeing to a response that was so reasonable
under the facts of the case.
Sanchez’s reliance on People v. Loza (2012) 207 Cal.App.4th 332 is misplaced. In
that case, a husband and wife were tried together for murder. (Id. at pp. 337-340.) The
trial court instructed the jury with a standard instruction that an aider and abettor was
“equally guilty” as the perpetrator. The jury sought clarification about whether an aider
and abettor could have a less culpable state of mind, yet the court simply referred the jury
to the instructions. (Ibid.) The Court of Appeal held that the wife’s attorney was
ineffective in failing to object to the “equally guilty” language in the instruction and in
failing to object to the court’s response to the jury instruction. (Id. at pp. 349-350, 355-
356.) The instruction was misleading because an aider and abettor can be guilty of a
greater or lesser crime than a perpetrator, and there was evidence from which the jury
could have concluded the wife and husband had different mental states. (Id. at pp. 350,
354-355.) So defense counsel was ineffective in failing to seek a modification of the
instruction and in failing to object to the response to the jury’s inquiry. (Id. at p. 355.)
13 The difference from the facts of this case is stark. Here, Sanchez has identified no
error in the jury instructions, the prosecution’s election of which acts related to the two
counts was unambiguous and reiterated by defense counsel during argument, and the
response to the jury’s inquiry did not direct the jury to an erroneous or confusing
instruction. We see no basis in Loza for concluding the trial court abused its discretion by
deciding not to expressly include the prosecution’s election in its instructions to the jury
or that trial counsel performed deficiently by proposing or acquiescing to the response.
Even if trial counsel could be found ineffective for agreeing to a reasonable and
legally sufficient response to a jury inquiry, Sanchez has not established his trial counsel
had no tactical purpose. Sanchez and the People dispute whether counsel reasonably
could have agreed to the response in the hopes that it would lead the jury to decide the
prosecution had overcharged Sanchez and refuse to convict on two counts. We think a
more obvious strategy was in play—counsel understood the distinction was so clear that
reiterating it was not important, but thought there was some risk the jury would think it
could convict Sanchez on both counts based on only one of the two acts. The court stated
that the parties agreed not to clarify the acts because “it was pretty clear during closing
arguments” and agreed to limit the answer to informing them that the two counts pertain
to two different acts. Pressing to clarify that the jury could not convict Sanchez on two
counts of assault based on only one of the two identified acts is a conceivable strategy,
which on direct appeal is enough to defeat a claim of ineffective assistance of counsel.
(People v. Kraft, supra, 23 Cal.4th at p. 1069.)
14 We also conclude for similar reasons that Sanchez did not show prejudice. It is not
reasonably probable he would have obtained a more favorable result but for his trial
counsel’s failure to request a clarifying statement from the court to support the
prosecution’s election. His argument turns on speculation that the jury ignored the
election and found him guilty of one count of assault for punching T.E. and a second
count of assault for kicking her. We conclude the attorneys in the case were too precise in
specifying that the punching and kicking were a single act related to count one for it to be
reasonably probable the jury could so misunderstand or would misapply what it had been
told. (Brown, supra, 11 Cal.App.5th at p. 341 [“there is an implicit presumption that the
jury will rely on the prosecution’s election and, indeed, is bound by it”].)
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
CODRINGTON Acting P. J.
FIELDS J.