        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.




                                1
                      PEOPLE v. SANCHEZ
                  Opinion of the Court by Chin, J.


         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.




                                 2
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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


                                  3
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                  4
                      PEOPLE v. SANCHEZ
                  Opinion of the Court by Chin, J.


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,


                                 5
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,


                                  6
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


“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.




                                  7
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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


                                  8
                      PEOPLE v. SANCHEZ
                  Opinion of the Court by Chin, J.


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

                                 9
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 10
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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



                                 11
                      PEOPLE v. SANCHEZ
                  Opinion of the Court by Chin, J.


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


                                12
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.


                                 13
                        PEOPLE v. SANCHEZ
                    Opinion of the Court by Chin, J.


      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.


                                  14
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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.




                                 15
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


                         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


                                 16
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 17
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.

                                 18
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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]

                                 19
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 20
                        PEOPLE v. SANCHEZ
                    Opinion of the Court by Chin, J.


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

                                  21
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.




                                 22
                      PEOPLE v. SANCHEZ
                  Opinion of the Court by Chin, J.


                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.




                                23
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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.


                                 24
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


(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.

                                 25
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


       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


                                 26
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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



                                 27
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,

                                 28
                       PEOPLE v. SANCHEZ
                   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


                                 29
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 30
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,

                                 31
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.



                                 32
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


       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



                                 33
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 34
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.




                                 35
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


             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,


                                 36
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 37
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 38
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 39
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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




                                 40
                        PEOPLE v. SANCHEZ
                    Opinion of the Court by Chin, J.


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,



                                  41
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 42
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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?”


                                 43
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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.


                                 44
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,


                                 45
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 46
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.

                                 47
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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

                                 48
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 49
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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



                                 50
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 51
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 52
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 53
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 54
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,


                                 55
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.

                                 56
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


       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


                                 57
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 58
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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,




                                 59
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.


                                 60
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


             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


                                 61
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.”



                                 62
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


      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


                                 63
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


[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


                                 64
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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




                                 65
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 66
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 67
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 68
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 69
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.




                                 70
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


       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


                                 71
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 72
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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

                                 73
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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


                                 74
                        PEOPLE v. SANCHEZ
                    Opinion of the Court by Chin, J.


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


                                  75
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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.

                                 76
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


       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



                                 77
                       PEOPLE v. SANCHEZ
                   Opinion of the Court by Chin, J.


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
