Filed 7/20/26 P. v. Sandoval CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B338121
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA491982)
v.
DAVID ALEXANDER SANDOVAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Gustavo N. Sztraicher, Judge. Affirmed
and remanded with directions.
Kathy R. Chavez, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
A jury found defendant and appellant David Alexander
Sandoval guilty of two counts of first degree murder and related
charges arising from two separate incidents that occurred in late
2020. Defendant challenges his conviction on several grounds.
He contends the trial court prejudicially erred in admitting
statements he made to an undercover agent in what is commonly
referred to as a Perkins operation. (Illinois v. Perkins (1990)
496 U.S. 292 (Perkins).) Defendant also contends the prosecutor
committed multiple acts of misconduct during closing argument,
and that his trial counsel provided ineffective assistance for
failing to object to the misconduct. Finally, defendant argues
cumulative error, and requests correction of a clerical error in the
abstract of judgment.
We affirm the judgment of conviction in its entirety, and
direct the superior court on remand to prepare a new abstract of
judgment.
FACTUAL AND PROCEDURAL SUMMARY
1. The shooting of James Cortez (October 2020)
James Cortez was shot and killed on October 8, 2020, near
Riverside Drive in the Silverlake neighborhood of Los Angeles.
Witnesses saw three young males confronting Cortez, heard three
to four gunshots, and saw Cortez fall to the ground. A silver
sedan was seen fleeing the area. Surveillance video from security
cameras at nearby businesses captured a silver Toyota Camry
leaving the scene at the time of the murder. The police obtained
the car’s license plate from the video footage. The Camry had
been reported stolen by the owner. It was later determined that
the owner’s daughter, Nicole M., had taken the car. Nicole was
dating defendant at the time. When interviewed by the
detectives investigating the shooting, Nicole told them that
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defendant and another person named Kyler, who went by the
moniker Cocaine, told her they had killed someone and needed to
get rid of the gun.
2. The shooting on Aldama Street (December 2020)
On the evening of December 9, 2020, Jose Campos Peralta,
Jesus I. and Bionca I. were standing outside talking in front of a
home on Aldama Street in Highland Park. A dark sedan pulled
up, and two men dressed in dark clothes got out of the car, and
asked them “where you from?” Jesus held up his hands, and they
said they were from nowhere to signify they had no gang
affiliation, but the men immediately started shooting. Peralta
was killed. Bionca suffered non-fatal gunshot wounds to her arm
and leg, and Jesus escaped injury.
Video footage from nearby security cameras captured the
sedan in front of the house, as well as muzzle flashes. It was
later determined the car was a Lexus registered in the name of
defendant’s mother. When the car was recovered, it had three
recent bullet holes in it, as well as a work identification card with
defendant’s name and photograph. During the investigation, text
messages were recovered from defendant’s cellphone showing
that on December 9, 2020, defendant was looking to buy a
firearm, was discussing a “mission” with other gang members,
and talking about territory disputes with rival gangs in Highland
Park. Defendant was arrested on December 10, 2020.
3. The Perkins operation
After his arrest, defendant was placed in a holding cell
before being interviewed. An undercover informant posing as an
inmate and gang member (Perkins agent) was placed in the cell
with him, and their conversation was recorded unbeknownst to
3
defendant. Defendant introduced himself to the Perkins agent as
“Troubles from Avenues.”
Defendant and the Perkins agent engaged in conversation
for almost two hours. Defendant made various incriminating
statements during their conversation related to both shooting
incidents. Defendant said the police swabbed his hands, probably
looking for “gun powder,” but he “wasn’t the one who—you
know,” even though he did touch “it” afterward. He also said the
gloves he was wearing “ripped.” Defendant told the Perkins
agent he knew where the gun was, but it was out of the
neighborhood. Defendant said he thought the only thing he did
right was to make sure he did not keep anything inside the
house, except a box of bullets.
Defendant told the Perkins agent the detectives had
mentioned an old shooting from two months prior, but not the
“recent” one that happened “yesterday.” Defendant said a
revolver was used that “[d]ropped no shells” and they had worn
face masks and hoods. They had been “going back and forth …
with the fools from Highland” for a while. Defendant said, “[t]hat
fool was a sitting duck. He was just sitting there” in his own
neighborhood, but they had been out “patrolling” for about
30 minutes, “hitting all the spots” when they just happened upon
him. Defendant lamented that the passenger side of his car got
shot up “when that fool busted back.” Defendant said he sold the
gun the next day and bought a Glock.
At one point, defendant also said that a girl was with them,
and they were in her mother’s car. It is unclear from the context
to which incident defendant was referring.
We discuss relevant facts of the Perkins operation in more
detail in part 1 of the Discussion below.
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4. Charges, verdict and sentencing
By amended information, defendant was charged with two
counts of premeditated murder (Pen. Code, § 187, subd. (a);1
counts 1 & 4), one count of attempted murder (§§ 187, subd. (a),
664; count 9), two counts of possession of a firearm with a prior
juvenile adjudication (§ 29820, subd. (b); counts 3 & 6); and two
counts of assault with a firearm (§ 245, subd. (a)(2); counts 10 &
11). The People also alleged a prior juvenile adjudication as a
strike prior within the meaning of the “Three Strikes” law,
personal firearm use as to count 1, and several aggravating
factors.
The jury found defendant guilty of both counts of
premeditated murder (counts 1 and 4), and found true the
personal firearm use allegation as to count 1. The jury also found
defendant guilty of both counts of possession of a firearm and
both counts of assault with a firearm (counts 3, 6, 10 & 11).
The jury was unable to reach a verdict on the attempted murder
count (count 9). The court declared a mistrial for count 9, and it
was dismissed. For sentencing, defendant waived his trial rights
and stipulated to his prior juvenile adjudication for carjacking
(§ 215, subd. (a)) and the aggravating factors.
As to the two murder counts, the court sentenced defendant
to consecutive terms of 25 years to life, doubled due to the prior
strike. The court imposed and stayed a three-year low term for
the firearm use enhancement on count 1, and concurrent middle
terms on the remaining counts. Defendant’s total sentence was
100 years to life.
1 All undesignated statutory references are to the Penal
Code.
5
This appeal followed.
DISCUSSION
1. Admission of defendant’s Perkins statements
Defendant contends the admission of the statements he
made to the Perkins agent violated his constitutional rights.
We disagree.
1.1 Background
After his arrest, defendant was initially held for a few
hours at a police station near his home. He was then transported
to the police station where the Perkins operation was conducted.
When defendant was placed in the holding cell with the Perkins
agent, he introduced himself as “Troubles from Avenues” and
complained that he had already been held at another station “for
four hours.”
The Perkins agent asked defendant if the detectives told
him how long he was going to be there. Defendant responded, “I
asked ‘em, like, hey, like, so—so I haven’t been read my rights.
Am I under arrest or am I being detained? He said I’m being
detained. I’m, like, for what? Oh, like, to question you. I’m all,
like, what do you wanna question me about?” Defendant said
they were just “trying to get to [his] head” and scare him, but he
was going to be respectful and keep “conversation to a minimum,”
the “least I gotta talk to ‘em, the better.” Defendant then
asserted the police always try to get people to talk, they “ease
their way into it, like … if people are stupid.” He said he did not
confirm or admit anything. “And they could say it all they want
to, I’m not confirming shit.”
Defendant and the Perkins agent continued to talk for
about an hour, with defendant sometimes volunteering
information or initiating conversation. One of the detectives then
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stopped by the cell and told defendant they believed he was
involved in a murder that occurred on October 8 on Riverside
Drive, and that they would come get him in a few minutes
because they had questions for him. After the detective left,
defendant and the Perkins agent resumed talking. Defendant
said, “I’m gonna ask for a—Imma [sic] plead the Fifth and ask for
a lawyer, straight up. ‘Cause I don’t wanna make it any worse.
What else can I do? I’m not gonna sit there and fucking talk to
‘em. What am I gonna tell ‘em? What am I gonna tell ‘em that’s
gonna help me? Nothing.”
Defendant and the Perkins agent talked, in total, for about
two hours, during which time defendant made various
incriminating statements. Defendant was then taken to a formal
interview with the detectives and read his rights under Miranda
v. Arizona (1966) 384 U.S. 436. Defendant invoked his right to
counsel.
1.2 Analysis
In Perkins, the Supreme Court held that voluntary
statements by an incarcerated defendant to an undercover agent
are admissible to prove guilt, concluding the interests protected
by Miranda were not implicated. (Perkins, supra, 496 U.S. at
p. 300.)
Defendant acknowledges the holding in Perkins, as well as
California law following Perkins. (See, e.g., People v. Orozco
(2019) 32 Cal.App.5th 802, 813–815.) However, defendant says
that some courts have recently begun to question the validity of
Perkins operations, finding them to be deceptive police tactics
specifically intended to circumvent the safeguards of Miranda.
Defendant points out the Supreme Court is currently considering
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the issue in People v. Allen, review granted November 20, 2024,
S286520.
But the chief issue under review in People v. Allen arises
from the fact the defendant there invoked his right to remain
silent during custodial interrogation. The Supreme Court
granted review to determine whether the defendant’s invocation
of his right to remain silent affected the admissibility of the
incriminating statements made by the defendant during a
subsequent Perkins operation. (People v. Allen, supra, review
granted.) Other cases that have found incriminating statements
made during a Perkins operation to be inadmissible similarly
involve defendants who invoked Miranda rights, and then made
incriminating statements in a subsequent Perkins operation.
(See, e.g., People v. Zapata (2026) 118 Cal.App.5th 529, 540–543.)
These cases have no applicability here as defendant
concedes he never invoked his rights under Miranda prior to
making statements to the Perkins agent. He nevertheless argues
the practice used by the detectives was deceptive and violated his
rights. He says his statements to the Perkins agent show he
intended to assert his Miranda rights when interviewed by the
detectives, and that he did so immediately once those rights were
read to him at the start of the formal police interview. Defendant
therefore urges us to conclude his statements to the Perkins
agent, obtained only by intentionally delaying his formal
interview, should have been excluded at trial.
Defendant’s argument fails to acknowledge the plain
reasoning of Perkins. Perkins instructs that “Miranda was not
meant to protect suspects from boasting about their criminal
activities in front of persons whom they believe to be their
cellmates.” (Perkins, supra, 496 U.S. at p. 298.) Rather,
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“Miranda forbids coercion, not mere strategic deception by taking
advantage of a suspect’s misplaced trust in one he supposes to be
a fellow prisoner. As we recognized in Miranda, ‘confessions
remain a proper element in law enforcement. Any statement
given freely and voluntarily without any compelling influences is,
of course, admissible in evidence.’ [Citation.] Ploys to mislead a
suspect or lull him into a false sense of security that do not rise to
the level of compulsion or coercion to speak are not within
Miranda’s concerns.” (Perkins, supra, 496 U.S. at p. 297.)
Nothing in the transcript of the Perkins operation here
raises any inference that defendant’s constitutional rights were
violated. Defendant made voluntary statements to the Perkins
agent before he invoked his right to counsel at a later
interrogation by detectives. His statements were therefore
properly admitted at trial.
2. The prosecutor’s closing argument
Defendant argues the prosecutor committed misconduct
during closing argument by urging the jury to view the crime
through the victims’ eyes, telling the jury defendant had a
disposition to commit crimes, and making arguments in violation
of a court order. Defendant concedes his trial counsel did not
raise any objections to the portions of argument he now contends
were improper. Defendant urges us to exercise our discretion to
resolve his claim on the merits, or alternatively, to find his trial
counsel provided ineffective assistance for failing to object. We
conclude defendant forfeited his claim of prosecutorial
misconduct, and has failed to demonstrate ineffective assistance
of counsel.
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2.1 Forfeiture
A claim of prosecutorial misconduct is not cognizable on
appeal unless the defendant objects and requests an admonition
in the trial court, if an objection and jury admonition would have
cured the harm. (People v. Young (2019) 7 Cal.5th 905, 933;
accord, People v. Crew (2003) 31 Cal.4th 822, 839; People v. Scott
(1997) 15 Cal.4th 1188, 1217.)
It is undisputed no objections were raised below. We
decline defendant’s invitation to exercise our discretion to
consider his claim on the merits. Defendant has not shown that
an objection or request for admonition would have been futile, nor
has he shown the alleged misconduct deprived him of due process
or otherwise resulted in a trial that was fundamentally unfair.
Moreover, as we explain below, even if defendant had preserved
the right to argue prosecutorial misconduct, reversal would not
be warranted.
2.2 Ineffective assistance
We also conclude defendant has not established a claim of
ineffective assistance of counsel.
On direct appeal, a defendant bears a heavy burden in
demonstrating a claim of ineffective assistance of counsel.
(People v. Garcia (2022) 76 Cal.App.5th 887, 900.) A defendant
must demonstrate “both that trial counsel failed to act in a
manner to be expected of reasonably competent attorneys acting
as diligent advocates, and that it is reasonably probable a more
favorable determination would have resulted in the absence of
counsel’s failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623,
citing Strickland v. Washington (1984) 466 U.S. 668, 687–696.)
The Supreme Court has “repeatedly stressed ‘that “[if] the
record on appeal sheds no light on why counsel acted or failed to
10
act in the manner challenged[,] … unless counsel was asked for
an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must be
rejected.’ [Citations.] A claim of ineffective assistance in such a
case is more appropriately decided in a habeas corpus
proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266–267, italics added; People v. Johnson (2016) 62 Cal.4th 600,
653–654 (Johnson); People v. Lewis (2001) 25 Cal.4th 610, 674–
675.)
Defendant contends resolution on direct appeal is
appropriate because the prosecutor’s improper argument was so
egregious that no competent attorney would have failed to assert
timely objections and seek appropriate admonishments from the
court. We address each of his claims in turn.
2.2a Viewing crime through victim’s eyes
Defendant says the prosecutor, in discussing the shooting
incident of December 2020, improperly urged the jury to view the
crimes through the eyes of the victims. The prosecutor told the
jury that the testimony of Bionca, Jesus, and another witness
named Rosalva, who saw the events from inside the home, gave
them “a snapshot of the trauma … [w]hat it feels like to be shot
… [w]hat it feels like to watch someone lose their life while trying
to save another.”
It is improper for a prosecutor to invite the jury to view the
crime through the eyes of the victim, because it necessarily
invites the jury to rely on sympathy and emotion, and not on an
objective view of the evidence. A prosecutor commits misconduct
by making “arguments to the jury that give it the impression that
‘emotion may reign over reason,’ ” or by presenting “ ‘irrelevant
information or inflammatory rhetoric that diverts the jury’s
11
attention from its proper role, or invites an irrational, purely
subjective response.’ ” (People v. Sanchez (2019) 7 Cal.5th 14, 66
(Sanchez); People v. Mendoza (2007) 42 Cal.4th 686, 704.)
In Sanchez, the prosecutor invited the jury to “imagine” the
murder victim’s final thoughts. (Sanchez, supra, 7 Cal.5th at
p. 66.) Sanchez rejected the defendant’s claim of misconduct,
explaining that the prosecutor’s plea to the jury only indirectly
suggested the jury should view the crime though the victim’s
eyes. (Ibid.) Sanchez said the prosecutor’s argument was
irrelevant to a determination of the defendant’s guilt and
therefore should not have been made. (Ibid.) But because the
comment was a brief reference in an otherwise lengthy and
unobjectionable argument, there was no reasonable probability
the jury would have reached a different result had the comment
not been made. (Id. at pp. 66–67.)
Similarly here, the prosecutor’s argument that the victims’
testimony provided the jury with a snapshot of what it felt like to
be shot and to see someone die was irrelevant to a finding of
guilt, but it did not directly urge the jury to rely on sympathy for
the victims and to disregard the evidence. In fact, the brief
comment was part of a lengthier argument in which the
prosecutor specifically pointed out certain key aspects of the
victims’ testimony describing how the shooting occurred, and
emphasized where their testimony was corroborated by the video
footage from nearby security cameras.
Thus, even assuming this brief reference by the prosecutor
constituted improper argument, we cannot conclude that trial
counsel was ineffective for not objecting. Defense attorneys have
broad discretion in matters of trial tactics and “in choosing the
means by which to provide constitutionally adequate
12
representation.” (Johnson, supra, 62 Cal.4th at p. 653.) Defense
counsel may have had a valid reason for choosing not to object,
including not wanting to highlight that part of the prosecutor’s
argument. In any event, defendant also has not shown a
reasonable probability the jury would have reached a different
result had the comment not been made.
2.2b Disposition to commit crime
Defendant contends the prosecutor improperly told the jury
he had an evil disposition. The prosecutor argued that
considering all of defendant’s gang tattoos, the most important
one was the tattoo that said “down with my demons.” The
prosecutor said that tattoo “tells you everything about his
mentality. That he is embracing that evil side. And because he’s
down with his demons, he is the type of person who is willing to
deliver death to these two completely innocent men.”
A prosecutor has broad latitude during closing argument,
and may use strong and descriptive language, as well as epithets,
so long as it is fair comment on the evidence, including
reasonable inferences to be drawn therefrom. (People v. Harrison
(2005) 35 Cal.4th 208, 244 (Harrison); accord, People v. Jackson
(2016) 1 Cal.5th 269, 349.) “ ‘ “A prosecutor may ‘vigorously
argue his case and is not limited to “Chesterfieldian
politeness.” ’ ” ’ ” (Harrison, at p. 244.)
Moreover, any improper argument must be viewed in the
context of the prosecutor’s entire argument, as well as the court’s
instructions to the jury. (People v. Centeno (2014) 60 Cal.4th 659,
667.) A defendant must show a reasonable likelihood the jury
understood the challenged statements in an improper or
objectionable manner. (Ibid.; accord, People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 305.) In making this assessment, “ ‘we “do
13
not lightly infer” that the jury drew the most damaging rather
than the least damaging meaning from the prosecutor’s
statements.’ ” (Centeno, at p. 667.)
In Harrison, the Supreme Court concluded that a
prosecutor’s description of the defendant as a “habitual killer,”
“the executioner,” a “denizen of the night,” and a “creator of
victims” who enjoyed killing, among other epithets, “did not
exceed the bounds of proper argument, given the evidence that
[the] defendant shot two people in the head at point-blank range
over a purchase of fake cocaine.” (Harrison, supra, 35 Cal.4th at
p. 245.) A further comment by the prosecutor that the defendant
had a “predisposition” to kill was found harmless because of the
strong evidence of guilt. (Id. at pp. 245–246.)
Here, it was fair for the prosecutor to argue reasonable
inferences arising from the gang evidence, including defendant’s
multiple tattoos, and how the prosecutor believed they helped
establish the motive for the shootings. But to the extent the
prosecutor asserted that defendant had a predisposition to
commit murder, that was improper and arguably should have
been objected to by trial counsel and a request for admonition to
the jury made.
Nevertheless, it was harmless in light of the overall
argument and the evidence in the record, including defendant’s
admissions. In addition, the jury was instructed with CALCRIM
No. 1403 which told them that they could not conclude from any
gang evidence “that the defendant is a person of bad character or
that he has a disposition to commit crime.” Defendant has not
affirmatively demonstrated a reasonable probability of a different
result had the argument not been made.
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2.2c Violating court order
Defendant contends the trial court ordered that his Perkins
statements were admissible only on the issues of motive and
intent to kill, but not to prove identity. Defendant says the
prosecutor violated that order by arguing at several different
points during closing argument that his admissions during the
Perkins operation proved he was the shooter. For example, the
prosecutor told the jury that the transcript of the Perkins
operation was “chock-full of details that only the killer could
know,” and argued that defendant laid out all “the details of how
Jose was killed.”
Defendant misstates the scope of the trial court’s order.
At the pretrial hearing on February 27, 2024, the court heard
argument and ruled on the parties’ motions in limine under
Evidence Code section 402. With respect to the transcript of the
Perkins operation, the parties agreed that certain portions of the
transcript would be redacted. Defendant then argued that
additional portions should be stricken. The court denied the
request, finding the statements were relevant on the issue of
consciousness of guilt and therefore admissible.
The court then proceeded to discuss the prosecutor’s motion
concerning the relevance and admissibility of certain gang
evidence. The court explained that “this gang information has to
be analyzed in a different light” than the Perkins statements
generally because gang evidence can be used by a jury for the
“wrong reasons.” The court noted that some of the statements
made by defendant to the Perkins agent were gang-related, such
as explaining that he and his “homies” had been out “patrolling”
when they came upon one of the victims. The court ruled the
gang evidence was therefore relevant and admissible to show
15
motive and intent to kill. The court said however that it did not
believe the gang evidence was relevant to prove identity. The
court also excluded evidence of other crimes committed by the
gang.
But nothing in the court’s ruling indicates that all
statements made by defendant during the Perkins operation were
only admissible to show motive and intent to kill. The limitation
was imposed only with respect to gang evidence. The prosecutor
therefore acted within the bounds of fair argument by pointing
out all of the evidence, including admissions by defendant during
the Perkins operation, that he believed demonstrated defendant’s
guilt, and trial counsel was not ineffective for not raising an
objection.
3. Cumulative error
Defendant briefly asserts that the admission of his Perkins
statements and the prosecutor’s misconduct should be considered
together for their cumulative prejudicial effect. As we explained
above, defendant has not shown any prejudicial errors, and there
is no basis to find cumulative error.
4. The abstract of judgment
The People concede the abstract of judgment should be
corrected. We agree. Paragraph 1 of the abstract correctly
identified the two murder counts as counts 1 and 4, but
paragraph 6c incorrectly identified counts 1 and 2 (count 2 was
not a part of the operative amended information). On remand,
the superior court is directed to prepare a new abstract of
judgment that correctly identifies the murder counts on which
defendant was convicted as counts 1 and 4.
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DISPOSITION
The judgment of conviction is affirmed. On remand, the
superior court is directed to prepare a new abstract of judgment
that correctly identifies the murder counts as counts 1 and 4, and
to forward the new abstract of judgment to the Department of
Corrections and Rehabilitation.
VIRAMONTES, J.
WE CONCUR:
WILEY, Acting P. J.
SCHERB, J.
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