People v. Howell CA2/8 ( 2024 )

Filed 9/23/24 P. v. Howell CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B321226
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. TA152960
MICHAEL HOWELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Hector E. Gutierrez, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and Blythe J. Leszkay, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Michael Howell of one count of pandering.
Howell mainly claims that insufficient evidence supports this
conviction. He secondarily argues prosecutorial misconduct and
ineffective assistance of counsel tainted his trial and the trial
court erred by denying discovery and questioning related to the
Racial Justice Act (Stats. 2020, ch. 317, § 1) (the Act), codified in
part at Penal Code section 745. We affirm. Undesignated code
citations are to the Penal Code.
The offense of conviction, which is pandering under section
266i, subdivision (a)(2), uses the noun “prostitute.” We do as
well.
I
We summarize facts favorably to the verdict. (See People v.
Campbell (2020) 51 Cal.App.5th 463, 469 (Campbell).)
On October 22, 2020, Deputy Vanessa Dingillo posed as a
prostitute near a street corner in Compton known as a gathering
place for prostitutes. She was part of an undercover operation
with the Los Angeles County Sheriff's Department’s human
trafficking team. They were out to get “johns”—purchasers of
commercial sex—and “pimps”—people who earn a living off sex
workers. Dingillo had been trained about human trafficking and
mentored by human trafficking task force members. She had
participated in other undercover operations posing as a sex
worker and had spoken with all types of participants in the
commercial sex industry.
Dingillo paced along the street. She wore a short black
romper, a blue wig, and blue sunglasses. Dingillo also wore a
microphone and transmitter that allowed her team to hear her in
real time. She was interested in whomever drove up to her that
day; there were no particular targets.
2
A Mustang stopped at the corner 10 to 15 feet from her.
Dingillo saw a driver and a passenger. She told her team, “Might
be a pimp.”
Howell was driving. He rolled down his window and said
something Dingillo could not hear. He directed her to the driver’s
side of the car and said, “Come here.” Dingillo approached the
car. Howell asked her name. The rest of their recorded
conversation appears below, with ellipses in place of
unintelligible statements:
“[Howell]: What’s up mommy? You ready? You ready to
come home?
“Dingillo: You from out here?
“[Howell]: Yup. . . .
“Dingillo: Huh?
...
“[Howell]: Ready? . . . What you got on you? A couple
hunnid?
“Dingillo: Maybe.
“[Howell]: . . . I’ll take care of you. Get in the car.
“Dingillo: I’m not about to get in with you.
“[Howell]: Why?
“Dingillo: ‘Cause I don’t know what you about.
“[Howell]: You know what I’m about. I’m on that game shit
you . . . I’m good. I’m gonna shoot my shot. . . . Shit. We
could figure it out though.
“Dingillo: What’s that choose up?
“[Howell]: Huh?
“Dingillo: What’s that choose up?
“[Howell]: Give me a rack.
“Dingillo: A rack?
3
“[Howell]: Yup.
“Dingillo: You be having your girls on the blade or on the
internet?
“[Howell]: I don’t really be fuckin’ with the blade, I fuck
with the internet more. I need you. I’m not gonna lie to
you.
“Dingillo: How much you gonna make me charge?
“[Howell]: Huh?
“Dingillo: How much you gonna make me charge?
“[Howell]: You?
“Dingillo: Yeah.
“[Howell]: You better be two hundred, three, . . . one fifty,
you know . . . like three hundred or higher, two fifty, you
know. . . .
“Dingillo: You let your girls do bareback or not?
“[Howell]: Hell nah, you gonna do no fucking bareback.
Fucking bareback? You gonna fucking die out here.
“Dingillo: It’s more money though.
“[Howell]: More money . . . shit.
“Dingillo: ‘aight.
“[Howell]: Yeah. Condoms only for real, that shit . . .
“Dingillo: Yeah.
“[Howell]: You die like that . . . You got it. You know yous
you got it. You some snow out here. You know that –
“Dingillo: *giggles*
“[Howell]: . . . You feel me?
“Dingillo: So you don’t have girls right now?
“[Howell]: No I –
“Dingillo: So I’m not gonna have issues with no bottom
bitch?
4
“[Howell]: You got me until the next. Right now . . .
“Dingillo: Alright well, let me meet get in over there –
“[Howell]: Alright. Go right there.
“Dingillo: – ‘cause there’s police and shit.
“[Howell]: Alright go there.
“Dingillo: Alright, Imma walk down the alley.”
Detectives detained Howell in the alley. They took the
phone that was in his lap, which Howell admits was his. Then
they took Howell to the command post of the operation.
At trial, Dingillo and Detective Sinuhe Villegas explained
some of the words in the recorded conversation. Villegas was
part of the human trafficking task force and had been a deputy
sheriff for 22 years. He was an instructor on human trafficking
and had worked on more than 100 undercover operations.
Villegas explained the commercial sex industry is a
subculture with its own rules and language.
According to Villegas and Dingillo, pimps or others use the
term “come home” when they want a prostitute to come work for
them. Commercial sex buyers (johns) don’t use this term. Johns
“usually just right off the bat ask ‘How much?’ ” “The game”
refers to the relationship between a pimp and a prostitute.
“Choose-up” is the fee a prostitute would have to pay her pimp to
“pimp her out.” Prostitutes pay this fee because they believe a
pimp will make them more money. Howell notably responded to
the question about a choose-up with a dollar amount. A “rack” is
one thousand dollars. A “blade” is a street or area where
prostitutes walk or stand to conduct their business. Prostitutes
get work on the street or on the internet, so it was common for
them to ask a pimp where they would work. Howell’s response to
Dingillo’s “blade” question showed he knew about this.
5
Dingillo testified that when she asked Howell about charging
money, she was referring to sex acts. The amounts Howell
quoted were in line with what typically was charged. Going
“bareback” means having sex without a condom. Pimps often like
their prostitutes to do this because they could charge more
money. “Snow” and “snow bunny” describe a female white
prostitute. “[A]ny pimp that has white females can potentially
make more money because there are specific customers or johns
that will look for white prostitutes.” A “bottom bitch” is a pimp’s
most trusted prostitute who requires little instruction and often
oversees the other prostitutes working for that pimp. Dingillo’s
question about this made sense, because sometimes the other
prostitutes got into fights with a pimp’s bottom bitch.
Dingillo explained her initial observation that Howell
“[m]ight be a pimp.” She said this because of the way Howell
made eye contact with her and stopped at the corner, and based
on her other encounters and her training. On cross-examination,
Dingillo said less than half of the pimps she had interacted with
were African-American. Howell’s brief identifies him and his
passenger as Black men.
Dingillo confirmed the “entire conversation, from the first
thing he says to [me] all the way until [I] direct him to the alley,
the language that he used” was consistent with a pimp.
Villegas testified about evidence they found on Howell’s
phone, including private social media messages. One message to
Howell called him “Daddy” and used terms commonly used in the
pimp-prostitute relationship. Another thread suggested Howell
had a prostitute, was told to hold on to her, and was asked to
have this prostitute find another one. “It is common for pimps to
6
have prostitutes recruit other prostitutes to either work for the
same pimp or for other pimps.”
Villegas testified about various images and videos that had
been downloaded onto Howell’s phone, some of which pictured
scantily clad women flashing money. One video had “book now”
on a shot emphasizing a woman’s backside. A video featured
Howell counting money.
Villegas concluded the totality of the recorded conversation
showed Howell was recruiting Dingillo to be his sex worker. The
content of Howell’s phone supported this conclusion: the items
were consistent with the things he saw in human trafficking and
pandering investigations.
Villegas made various concessions. For example, he
conceded key terms he had explained to the jury were used
outside of the commercial sex context. He did not know whether
any of the women appearing on Howell’s phone were involved in
the commercial sex trade.
Other prosecution witnesses testified about Howell’s arrest,
his phone, and extracting the data off it.
Howell testified, among other things, that he was not trying
to act like a pimp or pick up a prostitute that day. Dingillo
seemed like a cute girl he wanted to talk to, not a prostitute. As
for parts of the recorded conversation, Howell explained he was
“just talking” and he “just threw something out there.” He
denied using key terms the way Villegas and Dingillo explained
them. Howell said one term (“choose-up”) had a different
meaning among Black people. The pictures the jury saw were
from Instagram. He had photos and videos on his phone because
he likes girls, particularly girls who dance.
The defense rested after Howell testified.
7
While deliberating, the jury had several questions for the
court and counsel and voiced it was “not coming to a conclusion.”
The court reporter read back some testimony, the court reread
various jury instructions, and counsel resumed argument on
certain points.
The jury convicted Howell of one count of pandering in
violation of section 266i, subdivision (a)(2). Howell moved for a
new trial, arguing the court’s denial of discovery under the Act
and its limitations on his cross-examination infringed his rights,
as we shall discuss. The court denied the motion and sentenced
Howell to the mid term of four years in prison.
II
We affirm because substantial evidence supports the jury’s
verdict. Howell’s argument regarding the Act fails because he
did not establish good cause for the far-reaching discovery his
tardy motion sought.
A
Howell first claims insufficient evidence supports his
pandering conviction.
In reviewing such a claim, we examine the record in the
light favorable to the prosecution and discern whether
substantial evidence allowed the jury to find the crime’s essential
elements beyond a reasonable doubt. We presume the existence
of facts the jury reasonably could deduce from the evidence.
(People v. Zamudio (2008) 43 Cal.4th 327, 357.) We accept logical
inferences the jury might have drawn from the evidence, even if
we would have concluded otherwise. (Campbell, supra, 51
Cal.App.5th at p. 484.) We reverse only if it appears there is
insufficient evidence to support the verdict under any hypothesis.
(Zamudio, at p. 357.) This is an enormous burden for a
8
defendant to overcome on appeal. (People v. Vasco (2005) 131
Cal.App.4th 137, 161.)
Pandering covers a broad range of conduct and includes the
business of recruiting a prostitute. (Campbell, supra, 51
Cal.App.5th at p. 484.) Under the subdivision at issue here, the
pandering statute requires the prosecution to establish the
defendant (1) used promises, threats, violence, or any device or
scheme to cause, induce, persuade, or encourage another to be a
prostitute, and (2) intended to influence the target to be a
prostitute. (§ 266i, subd. (a)(2), italics added; CALCRIM No.
1151; People v. Zambia (2011) 51 Cal.4th 965, 980 (Zambia).) It
makes no difference if the target is an existing prostitute or an
undercover officer. (Zambia, at pp. 973, 977 & 981.)
The People prosecuted Howell for one count of pandering by
encouraging Dingillo to work as a prostitute.
As will become relevant, pimping under section 266h is a
felony that differs from the felony of pandering defined by section
266i. Pimping involves proof a defendant derived support from a
prostitute’s earnings, while pandering occurs when a defendant
induces another person to become or to remain a prostitute.
(Compare §§ 266i, subd. (a)(2) with 266h, subd. (a).)
Ample evidence satisfied the elements of pandering.
Howell drove up to a woman standing on a street corner known
for prostitution, and at the outset asked her to “come home.”
Howell concedes Dingillo was “dressed as a prostitute” and was
“acting like a hooker.” He discussed the money he would require
her to charge customers and the fee he would collect from her.
He discussed using condoms, marketing via the internet, and
other conditions of the arrangement he was proposing. Howell
promised he would take care of Dingillo, they could “figure it
9
out,” and he had no other girls right now, so she had him “until
the next.”
We need not detail other incriminating evidence, including
the contents of Howell’s phone, for this evidence supports
Howell’s conviction for pandering by encouraging Dingillo to
become a prostitute.
Howell concedes some of the terms he used with Dingillo
were “sex-adjacent” but argues all of the words have benign
meanings. Similarly, he focuses on the items found on his phone
and argues for different inferences. These arguments are
misdirected because we indulge reasonable presumptions
available to the jurors. (Zamudio, supra, 43 Cal.4th at p. 357; cf.
People v. Sanghera (2006) 139 Cal.App.4th 1567, 1574
[defendants who fail to present all relevant evidence or fail to
present it in the light most favorable to the prosecution cannot
carry their burden on a sufficiency challenge].)
Howell spends many pages arguing the prosecution tried but
failed to show he was a pimp, and his pandering conviction
makes sense only if he were a pimp. He claims rappers have
elevated the “pimp life” as something to celebrate, particularly in
the Black community, but talking like a pimp and having photos
a pimp might have did not make Howell one.
This misdirected argument rests on the incorrect premise
that the prosecution’s failure to prove he was a pimp is a defense
to the charge of pandering. Howell cites no authority for this
illogical proposition. The proof of pandering was abundant. It
does not matter whether the prosecution proved Howell ran a
commercial sex website, posted images of genuine prostitutes, or
used images in a nefarious way.
10
The jury reasonably could infer Howell believed Dingillo was
a prostitute and was encouraging her to work as a prostitute for
him. The evidence supports a finding Howell had the necessary
intent. The pandering statute does not require that defendants
like Howell mention intercourse or specific sex acts. Howell’s
substantial evidence challenge fails.
B
Howell next claims the trial court erred and infringed his
constitutional rights, first, by denying him discovery under the
Act, and, second, by preventing questioning at trial regarding
other arrests from the undercover operation. His ultimate point
is that the court prevented him from establishing a racially
motivated operation and prosecution. We take his two
arguments in turn.
1
Effective January 1, 2021, the Act aims to eliminate racial
bias from our criminal justice system and to ensure race plays no
part in convictions and sentencing. (See People v. Wilson (2024)
16 Cal.5th 874, 944–946 (Wilson).) The Act commands that “[t]he
state shall not seek or obtain a criminal conviction or seek,
obtain, or impose a sentence on the basis of race, ethnicity, or
national origin.” (§ 745, subd. (a).) Subdivision (a) of the statute
lists categories of conduct that amount to violations of the Act, if
proved by the defendant by a preponderance of the evidence.
The Act’s discovery provision allows a defendant to file a
motion and, upon a showing of “good cause,” to obtain evidence
from the prosecution relevant to a potential violation of the Act.
(§ 745, subd. (d); Wilson, supra, at pp. 951–952.) Howell’s motion
did not establish good cause.
11
We apply the conventional standards of review: our review
of legal issues is independent, and our review of factual
determinations and discovery orders is deferential.
2
The procedural background began with Howell’s arrest in
October 2020. The prosecution filed an information charging
Howell with pandering in December 2020. The same month,
Dingillo testified at the preliminary hearing about the
undercover operation. Eleven months later, in November 2021,
the same attorney who defended Howell at the preliminary
hearing filed a discovery motion under the Act. The parties
argued the motion in early January 2022 and began jury
selection at the end of February 2022, after the court granted a
defense continuance request.
Howell’s motion sought information and documents
relating to pandering arrests, charges, declinations, and “racial
disparities in charging” in the county going back a decade.
The motion referred only to subdivision (a)(3) as a potential
violation, and it did so repeatedly.
This subdivision provides: “The defendant was charged or
convicted of a more serious offense than defendants of other races
. . . who have engaged in similar conduct and are similarly
situated, and the evidence establishes that the prosecution more
frequently sought or obtained convictions for more serious
offenses against people who share the defendant's race, ethnicity,
or national origin in the county where the convictions were
sought or obtained.” (§ 745, subd. (a)(3), italics added.)
Howell’s sole justification for discovery was data he claimed
showed 82.6 – 87% of arrests for pandering in the City of Los
Angeles over certain periods involved African Americans, yet
12
African Americans made up roughly 9% of the city’s and the
county’s population.
The prosecution’s opposition argued, among other things,
there was no good cause for the discovery. The arrest statistics
were irrelevant, as they pertained to the Los Angeles Police
Department and the city of Los Angeles, whereas the Los Angeles
County Sheriff’s Department made the arrest here outside of the
City of Los Angeles. Further, subdivision (a)(3) concerns
charging decisions, not arrests or other actions by law
enforcement.
At the hearing on Howell’s motion, which was a week
before the scheduled trial date, defense counsel clarified she was
asserting only a potential violation of subdivision (a)(3) and was
seeking discovery relating to this provision. Counsel explained:
“we are focused on what the Defendant was charged or convicted
of. . . . We are saying here is someone being charged with
pimping and pandering versus mere loitering as a john for
prostitution.” Counsel argued pandering is a “far more serious
charge” and attributed the difference in charging to ethnicity.
The court denied the motion, noting there was no showing
of any bias exhibited towards Howell. The court concluded the
data were irrelevant. The court explained that soliciting someone
to work as a prostitute is not “a more serious charge than being a
john. It is a totally different charge.” The case was old and had a
trial date, the court observed, and the defense had had over a
year to conduct its investigation. The court sent the case to
another department for trial.
About two months later, in late February 2022, after a
continuance due to defense need, Howell’s attorney raised the
discovery motion again orally before the new court but offered no
13
further evidence or grounds. Counsel stated she wanted
narrowed discovery concerning the “sting” operation that led to
Howell’s arrest. She filed no motion to this effect. (See § 745,
subd. (d) [defense may “file” a discovery motion].) Counsel
conceded “we are already in trial” but maintained the defense
wanted the discovery for credibility and impeachment purposes
and because it went to “the overall picture of that day as well.”
The prosecutor said she did not have the information requested
and did not know how long it would take to get it and to redact it.
The new court said this was the first it had heard of the
issue; it appeared the motion already had been decided; and it
was inclined to deny the defense request. The court stated it
would look at the file.
The court returned to the matter on the record after trial
had started. The court held the motion had been litigated and
ruled upon, and separately held it would deny the motion because
there was no good cause. In response, defense counsel argued she
had sought more time for the narrowed discovery.
Defense counsel maintained she had a “good-faith belief”
the discovery went to the issue of potential bias and would yield
fruit for impeachment and cross-examination. The prosecutor
again noted she did not have the requested information and did
not know how long it would take to collect it; the jury had been
impaneled and “[w]e’re in trial now”; and the discovery request
was late and irrelevant. The court agreed with the prosecution
and reaffirmed its denial of discovery. The court explained it
needed more than counsel’s good faith belief: “You’re asking for
information as to other arrestees or people that were investigated
or cited. I don’t even know what the facts or circumstances of
that are to even make me go to the next step of could that show
14
bias. I don’t have any information.” “[T]here has to be some
evidence. There has to be something -- good cause.” “I
understand you have a good-faith belief. I would need evidence --
sworn testimony, declarations, affidavits, something to that effect
-- to make me get to even that point.”
Howell’s motion under the Act did not establish good cause
for discovery, and the court did not abuse its discretion or violate
Howell’s rights in denying the motion. (See People v. Thomas
(2023) 14 Cal.5th 327, 368 [“Because there was no statutory
error, defendant’s constitutional claims likewise fail”]; People v.
Pearson (2013) 56 Cal.4th 393, 425 fn. 5 (Pearson) [rejecting, on
the merits, a claim the trial court erred on an issue before it
necessarily means rejecting any new constitutional “gloss” raised
on appeal].)
Howell made no showing or claim that any incident
involved similar conduct by a similarly situated person. His
motion made no claim that anyone had or exhibited racial bias or
animus towards him. This motion lacked a case-specific basis. It
was, moreover, tardy: it was on the eve of trial after much delay,
and it demanded discovery the court rightly feared would take an
indeterminate but probably significant interval to assemble.
Howell’s discovery demands were broad, and broad discovery
demands predictably can trigger “protracted” proceedings. (See
Wilson, supra, 16 Cal.5th at p. 961.)
Unlike the trial court in Young v. Superior Court of Solano
County (2022) 79 Cal.App.5th 138, 144, the trial court’s reasons
for denying the motion were not “incorrect as a factual matter.”
(Ibid.)
On appeal, Howell argues Dingillo’s initial observation
during the undercover operation that Howell “might be a pimp”
15
suggests a violation of subdivision (a)(1), which proscribes law
enforcement and others involved in a case from exhibiting racial
bias or animus toward a defendant. (§ 745, subd. (a)(1).)
Howell’s brief at times goes much further than this, painting
Dingillo as a racist who thought Howell was a criminal simply
because he was Black and had approached a “pretty white
woman” in an area “frequented by hookers.”
Howell did not present this theory to the trial court as a
justification for his section 745 motion and has forfeited this
argument.
To the contrary, at the hearing on the motion, Howell’s
defense counsel maintained she was not accusing Dingillo of
racial bias or animus: she said Dingillo was “fairly young in her
career” and agreed with the court that “if it was just looking at
number one [subdivision (a)(1)], I would not have a basis for that
. . . .”
Later, during and after trial, after two judges had denied
Howell’s motion, counsel reversed field and argued Dingillo’s
comment suggested bias or potential bias. The Act permits
discovery through a written motion, not through cross-
examination after a failed motion. (See § 745, subd. (d).)
Howell’s opening brief makes a passing reference to
subdivision (a)(2), which covers uses of racially discriminatory
language and expressions of racial bias or animus “[d]uring the
defendant’s trial.” (See § 745, subd. (a)(2).) Dingillo’s comment
on the street during the undercover operation does not implicate
this provision.
To the extent Howell suggests Villegas’s trial testimony
implicates subdivision (a)(2), his brief misstates the testimony.
Villegas testified he believed pandering was the appropriate
16
charge after listening to Howell’s recorded conversation with
Dingillo. Defense counsel probed Villegas about Howell’s race,
and Villegas responded he did not know Howell was Black until
after officers detained Howell. Villegas also testified charging
decisions have nothing to do with race.
Finally, to the extent Howell’s oral requests for discovery
can be viewed as requests for discovery outside of the Act, Howell
did not establish the trial court abused its discretion in denying
the discovery, which Howell sought on the eve of trial and during
trial. (See § 1054.5, subd. (a), § 1054, subds. (a) & (e) [discovery
in criminal cases is limited and should be timely].)
3
Howell also claims the trial court violated various of his
constitutional rights at trial by limiting inquiries into arrests of
other individuals made on the day of his arrest as part of the
undercover operation that ensnared him. He views this line of
inquiry as relevant to witness credibility and potential bias.
Under Evidence Code section 352, trial courts have
discretion to exclude evidence that threatens to mislead the jury,
confuse the issues, or consume too much time. This discretion
extends to evidence concerning witness bias or impeachment.
(See, e.g., Pearson, supra, 56 Cal.4th at pp. 454–456.) We
typically review these rulings for abuse of discretion. (See id.)
Howell’s inadequate presentation of this issue in his
opening brief forfeits any argument that the trial court’s
numerous rulings were trial abuses. (See United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 & 156
(Malibu Hillbillies).)
Defense counsel attempted to explore the topic of other
arrests in a hearing under Evidence Code section 402 to
17
determine which items from Howell’s phone the prosecution could
introduce. Counsel also tried to pursue this inquiry with several
witnesses at trial (including Howell), but after prosecution
objections, the trial court limited this questioning. The trial
court engaged in multiple extended discussions with counsel
about the matter, outside the jury’s presence. The objections and
discussions spanned more than 50 transcript pages.
Howell’s opening brief presents almost none of this. It cites
and discusses only the Evidence Code section 402 hearing, which
is inapposite, as the trial court made clear the point of that
hearing was to address evidence from Howell’s phone and how
the prosecution would use this evidence, and the court explicitly
ruled that questioning regarding other arrests was “not relevant
for purposes of this 402 hearing.”
Howell’s brief does not discuss the trial court’s concerns
that questions about other arrests would confuse and mislead the
jury and unduly consume time. It does not grapple with other
reasons the trial court gave for cutting off the inquiry. It fails to
acknowledge the court often qualified its rulings as based on the
state of the evidence at the time of the ruling. Howell’s brief does
not mention that defense counsel initially only offered her “good-
faith belief” the requested inquiry would produce relevant
information. Only when her client testified did counsel attempt
to provide an offer of proof regarding Howell’s observations of
other men held at the command post—who, according to counsel,
were not Black and were not handcuffed (unlike Howell) and
merely received citations. Counsel did not argue or show these
other detained men were situated similarly to Howell.
18
Howell also does not acknowledge his trial counsel
otherwise was able soundly to cross-examine prosecution
witnesses.
These failures are critical given Howell’s recognition that
the constitutional rights he highlights are subject to limits. (E.g.,
Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [“It does not
follow, of course, that the Confrontation Clause of the Sixth
Amendment prevents a trial judge from imposing any limits on
defense counsel’s inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of
the issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.”].)
It was Howell’s burden to demonstrate error through
cogent argument supported by legal analysis and record citations.
(See Malibu Hillbillies, supra, 36 Cal.App.5th at p. 146.)
Howell’s failure to address and cite the record, and to develop an
argument based on the record, forfeits this issue. (See id. at p.
156 [appellate courts are not required to search the record for
error, and a party who fails to support an argument with
necessary record citations forfeits the argument]; see also
Jameson v. Desta (2018) 5 Cal.5th 594, 609 [appellants bear the
burden of demonstrating, “on the basis of the record presented to
the appellate court, that the trial court committed an error that
justifies reversal of the judgment”].)
C
Finally, Howell contends the prosecutor committed
misconduct, misled the jury, and violated his constitutional rights
19
by misstating the elements of pandering in closing arguments
and thereby reducing the prosecution’s burden of proof. We
consider the challenged statements and then explain why
Howell’s contentions fail.
After several days of deliberating and multiple questions,
the jury asked the court to elaborate on “Reasonable Doubt” and
“Pandering” in the jury instructions. The court reread certain
instructions—including the instruction on pandering—and
permitted the attorneys to present additional argument.
Howell complains of a small portion of the prosecution’s
second round of closing argument. When addressing the
elements of pandering, the prosecutor said:
“So first, uses promises or any device or scheme. That
basically means anything. Right?
“Did he promise something? Did he flatter? Did he flirt?
Did he do anything during that conversation, during that
interaction? Any device or a scheme? That’s what that means.
Okay. So basically he’s got to do something.”
After this, the prosecutor focused the jury on the evidence.
She pointed to Howell’s promises to show that “what he was
doing, was trying to encourage her or persuade her to continue as
a prostitute.” She gave the jury examples from the evidence: “I’ll
take care of you” and “You can make this much money.” Counsel
later expanded on the topic: “[C]ould he have been flirting with
her? Yes. Is that perhaps how he was trying to get her to come
with him versus all other men who might approach her to work
for them or to continue with them? Absolutely.” Counsel
reinforced the jury instructions and ended her argument by
telling the jury to “Look at the actual elements.”
20
Far from objecting to this now-disputed line of argument,
defense counsel exploited it in her argument, telling the jury:
“You’ve heard the charge again, this pandering charge. The
scheme, device, and dudes, blah, blah, blah. We’ve got nothing
here.” “There’s no scheme. There’s no promise. There’s no
anything.”
Howell forfeited the issue of prosecutorial error by failing to
raise it at trial. (See People v. Johnsen (2021) 10 Cal.5th 1116,
1164–1165 (Johnsen) [timely and specific objection required to
preserve these claims].) The record does not establish a timely
objection and admonition would have been futile or insufficient.
(See id.)
Howell alternatively claims his trial counsel provided
ineffective assistance in not objecting. A defendant claiming
ineffective assistance of counsel must show deficient performance
by counsel that prejudiced the defense. (Johnsen, supra, 10
Cal.5th at p. 1165.) On direct appeal, we find deficient
performance only if (1) the record shows counsel had no rational
tactical purpose for the challenged act or omission, (2) counsel
was asked for a reason and failed to provide one, or (3) no
satisfactory explanation could exist. (Ibid.) We defer to counsel’s
reasonable tactical decisions and presume counsel acted within
the wide range of reasonable professional assistance. (People v.
Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Not objecting to the challenged statements was rational.
Howell focuses on a few words from the second round of closing
argument, isolated from the rest of the prosecutor’s remarks.
Viewing the argument as a whole, it is not reasonable to conclude
the jurors went back to deliberating believing they could convict
21
Howell based on just “anything” or “something,” as Howell
argues.
The trial court more than once correctly instructed jurors
on the elements of pandering, and it gave them a copy of the
instructions. It explained: “Words and phrases not specifically
defined in these instructions are to be applied using their
ordinary, everyday meanings.” It told jurors counsel’s statements
are not evidence, their verdict must be based on the evidence and
the law the court provided them, and they must follow the law as
the court explained it, even if they believed the attorneys’
comments were conflicting. We presume the jurors followed
these instructions. (See People v. Chhoun (2021) 11 Cal.5th 1,
30.) Howell’s opening brief acknowledges the jury instructions
govern and juries are required to follow them.
In short, defense counsel reasonably may have determined
that objecting here was pointless or unnecessary, and that the
more effective tactic was to attempt, in jiu-jitsu fashion, to turn
the force of the prosecution’s own words against it. (Cf. Mai,
supra, 57 Cal.4th at p. 1018 [whether objections should be made
is within counsel’s discretion and rarely implicates ineffective
assistance of counsel].)
The prosecutor’s comments did not render this trial
fundamentally unfair or signal she was attempting to sway the
jury through deceptive or reprehensible methods. (See People v.
Navarro (2021) 12 Cal.5th 285, 332.)
Because Howell did not establish deficient performance by
his trial counsel, we need not reach the issue of prejudice.
///
///
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DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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