People v. Landers CA2/7 ( 2024 )

Filed 10/18/24 P. v. Landers CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B325465
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476996-01)
v.
VICTOR LANDERS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Affirmed in part and
remanded with directions.
Kelly C. Martin, 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, Kenneth C. Byrne and Susan S. Kim, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
Victor Landers appeals from his judgment of conviction
after a jury found him guilty of murder, possession of a firearm
by a felon, unlawful possession of ammunition because of a prior
conviction, carrying an unregistered loaded handgun in a vehicle,
and pimping. The jury also found true several firearm
enhancements.
On appeal, Landers raises numerous claims: (1) his
conviction for pimping was not supported by substantial
evidence; (2) the trial court erred in failing to set aside the
pimping charge under Penal Code1 section 995; (3) the trial court
erred in refusing to sever the pimping charge from the murder
charge; (4) a prosecution expert impermissibly opined on
Landers’s guilt; (5) the trial court erroneously admitted prior
consistent statements; (6) the trial court erroneously admitted
impermissible character evidence; (7) the prosecutor committed
prejudicial misconduct; (8) the cumulative effect of the combined
errors violated Landers’s rights; (9) the trial court erred in
refusing to dismiss Landers’s prior strike convictions and firearm
enhancement; and (10) the abstract of judgment should be
corrected to reflect a $300 restitution fine and $300 stayed parole
revocation restitution fine. We agree the abstract of judgment
should be corrected. Otherwise, we discern no error and affirm
the judgment.
1 All undesignated statutory references are to the Penal
Code.
2
PROCEDURAL AND FACTUAL BACKGROUND
I. The Information and Pretrial Motions
The People charged Landers by an amended information
with five counts: murder (§ 187, subd. (a) (count 1)); possession of
a firearm by a felon (§ 29800, subd. (a)(1) (count 3)); unlawful
possession of ammunition because of a prior conviction (§ 30305,
subd. (a)(1) (count 4)); carrying an unregistered loaded handgun
in a vehicle (§ 25850, subd. (c)(6) (count 5)); and pimping (§ 266h,
subd. (a) (count 7)).
As to count 1 (murder), the People alleged Landers
personally used a firearm (§§ 12022.5, subd. (a), 12022.53,
subd. (b)), personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)), and personally and intentionally
discharged a firearm that caused great bodily injury or death
(§ 12022.53, subd. (d)). The People also alleged, as to count 1,
that Landers had prior serious felony convictions (§ 667, subd.
(a)(1)) and had served a prior prison term (§ 667.5, subd. (b)). As
to all the counts, the People further alleged Landers had two
prior serious and/or violent felonies under the “Three Strikes law”
(§§ 667, subds. (a)(1), (b)-(j); 1170.12). The People also alleged
several circumstances in aggravation under California Rules of
Court, rule 4.421(a)(1).
Landers moved to sever count 7 from the rest of the counts,
but the trial court denied the motion.
II. Prosecution Evidence at Trial
On March 27, 2019, around 4:00 p.m., Tocana Toca,
Landers’s ex-girlfriend, was shot and killed in an alley behind an
accounting office. The accounting office belonged to her child’s
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grandfather, Ted McDaniel. Toca occasionally went to
McDaniel’s office and helped with the work.
For several months leading up to the shooting, Landers and
Reshay Williams were in a romantic relationship. They lived
together and spent all their time together. Williams met Toca at
a party and would see Toca around at social gatherings. When
Williams and Toca ran into each other, Toca would give Williams
dirty looks. Shortly before the shooting, Toca slashed Williams’s
car tire.
A. The Shooting
Several witnesses at trial testified about the shooting.
(1) Ted McDaniel
On the day of the shooting, McDaniel saw Toca at his office
between 10:00 a.m. and 12:00 p.m. The office was on Martin
Luther King Boulevard between 3rd Avenue and 4th Avenue. At
the office, Toca started putting on lipstick and grooming herself.
McDaniel knew that she was about to meet someone.
An hour later, McDaniel heard “maybe” five gunshots
coming from the alley behind his office. After hearing his
secretary say Toca “went in the back to smoke a cigarette,”
McDaniel rushed outside to the back alley. When McDaniel
arrived, Toca was on the ground with paramedics.
(2) Reshay Williams
On the day of the shooting, Williams drove a gray Hyundai
to McDaniel’s office where she knew Toca might be. Williams
planned to fight Toca for slashing Williams’s car tire. Williams
brought along her friend Kneca Robinson, who sat in the
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passenger seat. Once Williams arrived near McDaniel’s office,
she parked her car and waited to see Toca.
While Williams was waiting in her car, Landers texted her,
asking where she was. After learning that Williams was near
McDaniel’s office, Landers asked Williams to pick him up.
Williams declined.
Landers then sent Williams several text messages. He
texted, “ ‘I wanna get this citch back because now I feel like she
trying to set me up on the low.’ ” Williams believed Landers was
referring to Toca “trying to get him.” The word “ ‘citch’ ” meant
“bitch.” He also texted, “ ‘I’m on my way over there, and you
better be ready to get me up out of there after I dead this citch.’ ”
To “ ‘dead’ ” meant to kill. After Williams told Landers how
angry she was over Toca slashing her tire, Landers texted, “ ‘You
mean citch the anger you feelen behind that shit aint nothing
compared to how the fuck I’m feeling.’ ” Williams believed
Landers was referring to his anger about Toca slashing
Williams’s tire. Landers further texted, “ ‘If you think I’m fittna
let anybody get away wit disrespecting me you better think
again.’ ”
After receiving Landers’s text messages, Williams drove to
the alley near McDaniel’s office between 3:45 and 4:00 p.m. She
saw Toca in the alley having a “heated” conversation with
Landers. Both Toca and Landers looked frustrated and mad.
Then Landers fired shots at Toca.
Williams drove around the corner and stopped her car. At
that point, Landers got into her back passenger seat, and
Williams drove off. Williams dropped off Robinson, picked up
another friend, and drove to the hotel where she and Landers
were staying.
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(3) Kneca Robinson
Robinson testified that, on the day of the shooting,
Williams picked up Robinson in a gray Hyundai. Williams told
Robinson that she was planning to fight Landers’s ex-girlfriend.
Williams believed the ex-girlfriend had slashed her car tire.
Williams drove them to Martin Luther King Boulevard
between 2nd Avenue and 3rd Avenue, where Williams believed
the ex-girlfriend worked. As they waited to see the ex-girlfriend,
Williams received several phone calls. During a call, a man
asked, “ ‘Why you there without me?’ ” Williams laughed, and
said she had “it on her own.” Then Williams asked, “ ‘Why you
coming?’ ”
After the calls, Williams drove and parked her car by an
alley near Martin Luther King Boulevard and 3rd Avenue.
Minutes later, Robinson heard six gunshots coming from the
alley. Robinson tightly grabbed Williams, who appeared “super
calm.” When the gunshots stopped, Robinson saw an African-
American man, carrying a backpack and wearing a dark blue
shirt and dark blue pants. Williams drove off.
Robinson asked Williams if Williams was going to drop
Robinson off, but Williams replied, “ ‘No. I’m going to pick up my
nigga – Victor.’ ” At some point, Landers got into the car. He
was carrying a backpack and dressed in the same-colored
clothing as the man she had seen in the alley. Landers was mad
and asked Williams, “ ‘Where in the fuck you at?’ ” Landers also
said, “ ‘Fuck that bitch,’ ” and Williams laughed.
Williams then drove to a house where she picked up
Landers’s male and female cousins. Later, Williams dropped off
Robinson.
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(4) Other Witnesses
On the day of the shooting, several other witnesses were
near the alley on Martin Luther King Boulevard between 3rd
Avenue and 4th Avenue. Between 3:45 and 4:00 p.m., they heard
four to six gunshots. Afterwards, they all saw an African-
American man walking away from the alley.
B. Landers’s Unrelated Arrest on Weapons and Pimping
Charges
A week after the shooting, on April 2, 2019, Officers
Michael Lynch and Christopher Ineguez of the Manhattan Beach
Police Department pulled over a gray Hyundai in Manhattan
Beach. Williams was driving, and Landers was in the passenger
seat. A records check of Williams revealed she had active
warrants for soliciting prostitution. Williams admitted she was a
prostitute.
During a search of the Hyundai, the officers found a loaded,
unregistered gun under the front passenger’s seat, where
Landers had been sitting. In the glove box, the officers found
ammunition, an ATM card with Landers’s name on it, and a cell
phone. Landers admitted the phone was his. The cell phone kept
receiving messages from “Plenty of Fish,” a dating website. The
officers also found a box of condoms, women’s clothing, and
lingerie.
Before the officers searched the Hyundai, they put Landers
and Williams in a patrol car. A video camera inside the car
recorded the conversation between Landers and Williams. At
trial, the prosecutor played part of the video for the jury. In the
video, Landers looked outside the patrol car and said, “They
found the billy.” “Billy” is slang for a gun. Landers told
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Williams, “Just keep – just keep to the same program. Don’t be
doing outcalls. The posts.” Landers asked one of the officers,
“[C]an you all just give my girl a ticket for her warrants and let
her go? I don’t want her getting caught-up in my bull-shit.”
The officers arrested both Landers and Williams and took
them to jail. During booking, Ineguez searched Landers and
found a hotel room key, Williams’s identification card, and
Williams’s ATM card. Williams said that the key was for a hotel
room “on Imperial” in Los Angeles. Ineguez noticed Landers had
two tattoos: the Monopoly character “Top Hat” and the words
“Tiny Loc Pimp.”
C. Expert Testimony About Pimping
Ineguez had training in and experience with prostitution,
pimping, and other vice-related crimes. He testified that
Imperial Highway, the street where the hotel was located, was
known for prostitution. Prostitutes walked along that street or
performed “out calls.” An out call was when a prostitute leaves
the street and meets the customer elsewhere. To perform out
calls, prostitutes would often use dating websites, such as Plenty
of Fish.
Ineguez testified that a “majority” of the pimps he arrested
had Landers’s “Top Hat” tattoo, which meant “they’re all about
money, getting money, were out for money, trying to get paid.”
Landers’s “Tiny Loc Pimp” tattoo meant “Tiny Crazy Pimp.”
Ineguez testified it is common for pimps to carry a weapon to
protect themselves or their prostitutes. Also, “pimps will hold ID,
money, ATM cards of their prostitutes for control. [¶] They will
manage their money, and they will basically tell them what they
can spend and what they can’t.” Based on Ineguez’s training and
8
experience, he opined the circumstances surrounding Landers’s
arrest were consistent with pimping.
D. The Investigation
(1) Autopsy
Toca’s autopsy revealed that she died on March 27, 2019, at
4:10 p.m. of gunshot wounds to the head and chest. She had 14
gunshot wounds. Dr. Matthew Miller, a Deputy Medical
Examiner for Los Angeles County, reviewed Toca’s autopsy
report. Dr. Miller noted the coroner recovered several bullets
from Toca’s body. Additionally, Dr. Miller opined that four of
Toca’s gunshots wounds were possibly consistent with Toca and
the shooter facing each other when Toca was shot.
(2) Firearms Evidence
Shortly after the shooting, Detective Nancy Johnson of the
Los Angeles Police Department (LAPD) collected multiple
cartridge casings from the crime scene. Later, Annette Woiwode,
a LAPD Criminalist, did a firearms and ballistics analysis.
Woiwode test-fired the gun from Landers’s arrest and collected
several cartridge casings and bullets. Woiwode then compared
the test-fired cartridge casings with the crime-scene cartridge
casings, and compared the test-fired bullets with the bullets from
the coroner. She concluded the gun from Landers’s arrest fired
both the crime-scene casings and the bullets from the coroner.
(3) Surveillance Videos
On the day of the shooting, LAPD Detective Clifton Rose
went to the crime scene and obtained surveillance camera videos
from two houses nearby. The prosecutor played both videos for
the jury.
9
One house had two cameras—one capturing the north side
of the house and the other capturing the south side. The north-
side camera showed a person with a dark complexion and thin
build walking on 3rd Avenue at 3:57 p.m. The person was
wearing a dark top, light pants, and dark shoes. The south-side
camera showed someone getting into the backseat of a gray car
that had stopped in the middle of a street. After that, the person
walking on 3rd Avenue was not seen again.
The second house’s camera showed a gray Hyundai driving
northbound on 3rd Avenue at 3:52 p.m. At 3:57 p.m., the same
gray Hyundai drove northbound on 3rd Avenue, stopped, backed
up, made a three-point turn, and drove southbound. The
Hyundai was consistent with William’s car.
After Rose obtained the videos, he spoke with McDaniel.
McDaniel told Rose that Landers should be a person of interest.
Rose ran Landers’s name in the police database. He discovered
Landers had been arrested on April 2, 2019, and the arrest
involved a gray Hyundai. Rose then ran the Hyundai’s license
plate number and learned the car had been at the Los Angeles
Inn and Suites hotel.
Rose went to the hotel and got its surveillance videos. The
prosecutor played parts of the videos for the jury and showed still
images from the videos to the jury. The videos and still images
showed that an hour after the shooting, at 5:13 p.m., a gray
Hyundai drove into the hotel parking lot. There was a driver,
front seat passenger, and two backseat passengers inside the car.
A woman got out of the backseat and gave money to the hotel’s
office manager.
The Hyundai then parked in the hotel parking lot. The
front seat passenger, who resembled Landers, got out of the car.
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The person resembling Landers was wearing light colored pants
and dark colored shoes—the same outfit as the person from the
crime-scene video.
The footage showed that, later that night, Williams was
inside the hotel’s front office. After that, a man resembling
Landers came out of a hotel room and took a black backpack from
the Hyundai.
(4) Cell Phone Evidence
LAPD detectives retrieved data from Williams’s and Toca’s
cell phones. Williams’s phone had text messages between her
and Landers. There were 15 text messages between them 20
minutes before the shooting. There were also text messages
between them about going on dates with other people. On
March 24, 2019, at 6:42 p.m., Williams texted Landers, “I’m doing
the date.” On March 30, 2019, at 8:21 p.m., Landers texted
Williams, “How long is your date?”
Toca’s phone also had several text messages between her
and Landers from the day of the shooting. The two had agreed to
meet in an alley. The final text message between them was 25
minutes before the shooting. Toca called Landers at 3:40 p.m.
Detectives analyzed the location of Landers’s, Williams’s,
and Toca’s cell phones based on call records and cell tower data.
The data revealed that Landers’s phone was at the crime scene
around 3:40 p.m. The records also showed calls to Williams from
Landers (1) between 3:53 p.m. and 3:57 p.m. from near South 3rd
Avenue and Martin Luther King Boulevard, and (2) between
6:19 p.m. and 10:17 p.m. from around the Los Angeles Inn and
Suites hotel.
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(5) The Perkins Operation and Williams’s
Interview with Detectives
Shortly after Williams was arrested, LAPD detectives
placed an undercover informant, posing as a fellow inmate, in
Williams’s jail cell and secretly recorded their conversation. This
tactic is commonly called a “Perkins operation.”2 To get Williams
to talk to the informant, LAPD Detective Armando Mendoza
came by William’s jail cell three different times and gave her
limited information. The information was designed to make
Williams feel like a target in the police investigation. At trial,
the prosecutor played a recording of the entire Perkins operation
for the jury.
At the beginning of the Perkins operation, the undercover
informant asked Williams why she was in jail. Williams said she
was in jail for “warrants” and because police were investigating a
murder. Williams suspected the murder involved the “beef”
between her and an “older lady.” The older lady had a “little
thing” with Landers and was mad at Williams because Williams
was Landers’s new younger girlfriend. As a result, the older lady
slashed Williams’s car tire. Other than that, Williams insisted
she did not know anything about the murder.
At that point, Mendoza came by Williams’s cell and told her
that he and his partner wanted to talk to her about “an incident
2 In Illinois v. Perkins (1990) 496 U.S. 292 (Perkins), the
United States Supreme Court held a criminal suspect who makes
incriminating statements is not entitled to warnings under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), “when the
suspect is unaware that he is speaking to a law enforcement
officer and gives a voluntary statement.” (Perkins, at p. 294.)
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that occurred on March 27th of this year over off of 19 McKinley
and 3rd Ave.” After Mendoza left, Williams continued to insist
she did not know what happened or the location of the incident.
Mendoza then came by a second time and told Williams,
“Miss Toca is dead.” He also told Williams that he was going to
show her “some stuff,” including “GPS on the rental car . . . and
video.” After Mendoza left, Williams told her cellmate multiple
times that Landers “probably” killed Toca. Williams also
repeatedly insisted that she did not do anything besides pick
Landers up around 3:00 p.m. or 4:00 p.m. and drop him off.
When Mendoza came by Williams’s cell for the third time,
he said, “We see you back up, wearing the bandana. . . . [I]t’s you
or him.”3 After Mendoza left, Williams said, “I am not going
down for this shit,” and repeatedly said that she did not do
anything.
Shortly after the Perkins operation, Mendoza and Rose
formally interviewed Williams. The detectives recorded the
entire interview, but the prosecutor played only the introductory
portion for the jury. In the introductory portion, the detectives
gave Williams her Miranda rights, asked Williams background
questions, and told Williams to tell the truth. Mendoza testified
that during the interview Williams said the gun Landers used to
shoot Toca was the same gun that officers later found during
Williams’s arrest. Overall, Williams’s statements in her
3 Mendoza initially testified that he did not say “it’s you or
him.” During a sidebar conversation, the prosecutor stated that
her copy of the transcript quoted Mendoza as saying, “it’s you and
him.” (Italics added.) However, after the prosecutor played the
entire Perkins operation video for the jury, both the prosecutor
and Mendoza agreed that Mendoza said, “it’s you or him.”
13
interview were consistent with the statements she made during
the Perkins operation.
III. Defense Evidence at Trial
Landers testified at trial. He testified he met Williams in
2018 and they had a sexual relationship until they were both
arrested in April 2019. He met Toca in high school. They had
sex and were, as he described, “friends with benefits.”
On the day of the shooting, Landers went to the alley by
Martin Luther King Boulevard between 3rd and 4th Avenues to
meet Toca. Toca had asked Landers to meet her because she
wanted things that she left at his aunt’s house. When Landers
told Williams he was planning to meet Toca, Williams was
already looking for Toca because she was upset that Toca had
slashed her car tire. Landers was also upset about that.
Landers testified about text messages he sent Williams
before he met up with Toca. Landers explained that when he
texted Williams, “ ‘I want to get this citch bad because now I feel
like she trying to set me up on the low,’ ” he meant he wanted to
“get rid of” and “move forward from” Toca because Toca was
threatening his relationship with Williams. When he texted,
“ ‘I’m on my way over there, and you better be ready to get me up
out of there after I dead this citch,’ ” he meant he was going to
end his relationship with Toca.
Landers testified that he owned the gun that killed Toca,
but that he did not take the gun with him when he met Toca in
the alley. Instead, Williams had his gun. When Landers got to
the alley, Toca was already there. Williams then arrived in the
alley and the three of them started talking. Williams was trying
to fight Toca. Williams said, “ ‘Bitch, you slashed my tire. You
jealous bitch. You mad you can’t keep a nigger.’ ” Toca laughed
14
at Williams and said, “ ‘Look here, little girl, I’m not bout fight
you over no nigger.’ ” Williams then lunged at and grabbed Toca.
At that moment, Landers pulled Williams back. Toca then took
out a knife and said, “ ‘I’m not bout to fight you, so what you want
to do?’ ” In response, Williams reached into her purse, pulled out
Landers’s gun, and shot Toca.
Williams and Landers left the alley in opposite directions.
Landers “started power walking and thinking” he needed to get
away from Toca. The closest person with a car was Williams, so
he called her. Williams did not answer, but as he was calling her,
he saw her at the corner and got into her car. Landers admitted
he was the man getting into a car by the alley in the surveillance
video.
Landers admitted he and Williams kept the gun between
the shooting and his arrest, and that the ammunition in the
Hyundai’s glove compartment belonged to him. Also, between
the shooting and his arrest, Landers and Williams stayed at a
hotel. Landers knew Williams was prostituting during that time.
Landers helped Williams arrange her prostitution work by letting
her use his phone, but he did not control or facilitate what
Williams did.
On the day of his arrest, Landers and Williams were
driving to the beach. The gun was in his pocket, but when the
police pulled them over, he put the gun under the front passenger
seat. Landers admitted that was not the first time he was
arrested. He had previously been arrested and convicted of
crimes, including drug offenses and two counts of armed robbery.
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IV. The Jury Verdict and Sentencing
The jury found Landers guilty on all counts. For the
murder charge in count 1, the jury found the firearm allegations
to be true.
Landers waived his right to a jury trial on his prior
convictions and admitted two prior convictions of robbery from
February 2010. Landers also admitted an aggravating factor
that his “prior convictions as an adult . . . [were] numerous or of
increasing seriousness.” (Cal. Rules of Court, rule 4.421(b)(2).)
The trial court sentenced Landers to an indeterminate term
of 100 years to life on count 1, consisting of 75 years to life under
the Three Strikes law, plus a consecutive term of 25 years to life
for the firearm enhancement (§ 12022.53, subd. (d)); and a
consecutive determinate term of six years, consisting of the upper
term of six years on count 7, a concurrent upper term of three
years on count 3, a stayed upper term of three years on count 4,
and a stayed upper term of three years on count 5. The trial
court struck the enhancements as to counts 3, 4, 5, and 7 for
sentencing purposes.4 The total state prison term was 106 years
to life. Landers timely appealed.
4 The trial court did not impose and appears to have struck
terms for the remaining enhancements as to count 1—
enhancements for having prior serious felony convictions (§ 667,
subd. (a)(1)) and having served a prior prison term (§ 667.5, subd.
(b)). The enhancement for the prior prison term is now “legally
invalid.” (§ 1172.75.)
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DISCUSSION
I. The Evidence Was Sufficient to Establish Pimping
Landers contends there was insufficient evidence to support
his conviction for pimping (count 7) because there was no
evidence he received financial support from Williams’s
prostitution. Landers is incorrect.
A. Relevant Legal Principles
“In assessing the sufficiency of the evidence, we review the
entire record to determine whether any rational trier of fact could
have found defendant guilty beyond a reasonable doubt.
[Citation.] ‘The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.’ [Citation.] In
applying this test, we review the evidence in the light most
favorable to the verdict and presume in support of the judgment
the existence of every fact the jury could reasonably deduce from
the evidence . . . . [W]e may not reverse for insufficient evidence
unless it appears ‘ “that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].” ’ ”
(People v. Valenti (2016) 243 Cal.App.4th 1140, 1157, superseded
in part by statute on other grounds as stated in People v. Villegas
(2023) 97 Cal.App.5th 253, 281, fn. 9, review granted Jan. 31,
2024, S283126, review dism. May 15, 2024.)
“Even where, as here, the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether the evidence
might reasonably be reconciled with the defendant’s innocence.
[Citations.] It is the duty of the jury to acquit the defendant if it
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finds the circumstantial evidence is susceptible to two
interpretations, one of which suggests guilt and the other
innocence. [Citation.] But the relevant inquiry on appeal is
whether, in light of all the evidence, ‘any reasonable trier of fact
could have found the defendant guilty beyond a reasonable
doubt.’ ” (People v. Zaragoza (2016) 1 Cal.5th 21, 44.)
Section 266h, subdivision (a), provides: “[A]ny person who,
knowing another person is a prostitute, lives or derives support
or maintenance in whole or in part from the earnings or proceeds
of the person’s prostitution” is guilty of pimping. Accordingly, the
prosecution had to prove that (1) Landers knew Williams was a
prostitute, and (2) Landers derived support or maintenance, in
whole or in part, from Williams’s earnings as a prostitute.
(People v. Scally (2015) 243 Cal.App.4th 285, 292 (Scally); accord,
People v. Grant (2011) 195 Cal.App.4th 107, 112, 115; see
CALCRIM No. 1150.)
“[D]eriving support with knowledge that the other person is
a prostitute is all that is required for violating the section in this
manner. No specific intent is required.” (People v. McNulty
(1988) 202 Cal.App.3d 624, 630.) It is not a defense that the
proceeds from another person’s prostitution were used to pay
shared expenses. (People v. Navarro (1922) 60 Cal.App. 180, 182
[“It was not necessary to show that the money [the defendant]
received from [the prostitute] was used solely to pay [the
defendant’s] own living expenses”].)
Pimping is a crime of a “continuous ongoing nature.” (People
v. Leonard (2014) 228 Cal.App.4th 465, 489, 491 (Leonard).)
Thus, the evidence presented to establish the offense may take
the form of “several discrete events” or may be “directed towards
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a continuous course” of activity demonstrating pimping. (Id. at
p. 492.)
B. Analysis
Construing the circumstances of this case in the light most
favorable to the verdict (People v. Valenti, supra, 243 Cal.App.4th
at p. 1157), we find there is substantial evidence Landers derived
support from Williams’s prostitution. First, there was evidence
that Landers and Williams shared living expenses over several
months. They lived together at various places and spent all their
time together. Around the time of the murder, Landers and
Williams stayed at the Los Angeles Inn and Suites hotel.
Surveillance video showed Williams at the hotel’s front desk,
from which it could be reasonably inferred she paid for the hotel
room. (Cf. People v. Navarro, supra, 60 Cal.App. at p. 182
[evidence defendant lived with prostitute and paid their shared
rent with earnings from the prostitution was sufficient to
demonstrate defendant derived financial support from
prostitution].)
Further, there was ample evidence Landers acted as
Williams’s pimp, in that he aided and controlled her prostitution.
Landers carried a gun while with Williams and kept her ATM
card. Based on Ineguez’s testimony on the common practices of
pimps, the jury could reasonably infer Landers carried the gun to
protect Williams as his prostitute and kept Williams’s ATM card
to “manage [her] money.” There is also evidence Landers used
his cell phone to arrange Williams’s dates. In addition, when it
became obvious he would be arrested because the police had just
located his gun while searching the Hyundai, Landers ordered
Williams to “keep to the same program,” stay on the “post,” and
“[d]on’t be doing outcalls.” From this evidence a jury could
19
reasonably infer Landers was heavily involved in Williams’s
prostitution: he provided protection, controlled her finances,
arranged her communications, and provided instruction. A
reasonable jury could also conclude Landers’s involvement in
Williams’s prostitution was for his own financial gain. (See
Scally, supra, 243 Cal.App.4th at p. 293 [“jury could conclude
that, as a matter of common sense, when defendant was
instructing [the prostitute] to meet certain quotas, he was doing
so for his own gain”].)
Moreover, there is evidence Landers identified as a pimp.
Landers had a tattoo of the Monopoly game character “Top Hat,”
which is common among a “majority” of pimps and signifies
“they’re all about money, getting money, were out for money,
trying to get paid.” Landers also had a tattoo that said, “Tiny Loc
Pimp,” which means “Tiny Crazy Pimp.” This evidence supports
the conclusion Landers was not merely an innocent bystander to
Williams’s prostitution but rather was “deliberately acting the
part of the pimp.” (See Scally, supra, 243 Cal.App.4th at pp. 292-
293 [defendant’s text messages where he was “using pimp
terminology, bragging about the money he was making,
recruiting, exhibiting knowledge of high prostitution areas, and
scheduling his work around prostitution” showed he was “steeped
in the pimping culture” and “was deliberately acting the part of
the pimp,” “thus undermining the claim [he] was merely an
innocent bystander”].) Even if, as Landers argues, he got the
tattoo “long before the charges in this case,” this possibility does
not compel reversal. (See People v. Meza (1995) 38 Cal.App.4th
1741, 1747 [“Where the circumstances support the trier of fact’s
finding of guilt, an appellate court cannot reverse merely because
it believes the evidence is reasonably reconciled with the
20
defendant’s innocence”].) Nor does Landers challenge the
admissibility of the evidence of his tattoos on appeal. Combined
with the facts above, this evidence supports a reasonable
inference that Landers was involved in Williams’s prostitution
and, when they lived together, Landers derived support from her
prostitution. (See People v. Bean (1988) 46 Cal.3d 919, 933
[“ ‘Circumstantial evidence may be sufficient to connect a
defendant with the crime and to prove his guilt beyond a
reasonable doubt’ ”].) We therefore find substantial evidence
supported his conviction for pimping.
II. The Court’s Alleged Error in Denying Landers’s Section 995
Motion Is Moot
Landers contends the trial court should have granted his
section 995 motion to dismiss the pimping count because there
was insufficient evidence of pimping presented at the preliminary
hearing. This issue is moot.
An erroneous denial of a section 995 motion justifies
reversal of a judgment of conviction only if a defendant can
“demonstrate prejudice at trial flowing from the purportedly
inadequate evidentiary showing at the preliminary hearing.”
(People v. Crittenden (1994) 9 Cal.4th 83, 137.) Landers has not
done so here. “Where the evidence produced at trial amply
supports the jury’s finding, any question whether the evidence
produced at the preliminary hearing supported the finding of
probable cause is rendered moot. Even ‘ “ ‘[i]f there is insufficient
evidence to support the commitment, the defendant cannot be
said to be prejudiced where sufficient evidence has been
introduced at . . . trial’ ” ’ to support the jury’s finding as to the
charge or as to the truth of the allegation.” (Ibid.) Because, as
21
discussed, the evidence at trial was sufficient to support the
pimping conviction, Landers’s contention is without merit.
III. The Court Did Not Err in Denying Landers’s Motion To
Sever the Pimping Charge from the Murder Charge
Landers contends the trial court erred when it denied his
motion to sever the pimping charge from the murder charge. He
also asserts a joint trial on the charges deprived him of his
constitutional right to a fair trial and due process. We disagree.
A. Procedural and Factual Background
(1) Motion to Consolidate
The People originally charged Landers with two separate
cases—one arising out of the March 2019 murder, and the other
arising out of his April 2019 arrest in Manhattan Beach. Before
the preliminary hearing, the People filed a motion to consolidate
both cases.
At the hearing on the motion to consolidate, the court
stated it was inclined to grant the motion because “[t]he cases are
inexplicably bound up together, the facts relate to one another,
and the witnesses will likely overlap.” Defense counsel argued
the pimping charge had nothing to do with the murder charge,
was a weak case, and had “the potential of affecting the case
negatively.” The court granted the motion to consolidate,
reasoning regardless of whether the evidence for the pimping
charge was weak or strong, the danger of prejudice was minimal.
(2) Motion to Sever
Before trial, defense counsel filed a motion to sever the
pimping charge from the murder charge. Counsel argued the
charges involved distinct expert witnesses, the murder charge
22
was inflammatory, the pimping charge was weak, and joinder
would prejudice Landers. In response, the People argued that
under Los Angeles Superior Court Local Rules, rule 8.6(d), the
court had no authority to sever the pimping charge because the
matter had already been litigated when the People filed their
motion to consolidate. Alternatively, the People argued Landers
was not prejudiced by the joinder.
At the hearing on the severance motion, the court said it
was not convinced it had jurisdiction to rule on the motion to
sever because the joinder issue had been previously litigated
before another bench officer. However, the court continued, even
if it had jurisdiction, it would not sever the pimping charge. The
court reasoned none of the charges was more inflammatory than
the other, some evidence was cross-admissible, and no undue
prejudice would result from trying the charges together. Thus,
the court denied the motion.5
B. Analysis
Section 954 authorizes joinder of different offenses when
they are “connected together in their commission or . . . [are] of
the same class of crime or offenses.” Joinder “is intended to
promote judicial efficiency.” (People v. Landry (2016) 2 Cal.5th
52, 75 (Landry).) “[J]oinder ‘is the course of action preferred by
the law.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 689
(Westerfield).) Nonetheless, the trial court has discretion to sever
5 The People contend we should affirm the denial of the
motion to sever on the grounds it was not timely and was barred
under Los Angeles Superior Court Local Rules, rule 8.6(d).
Because we affirm the denial of the motion to sever on the merits,
we need not address these procedural grounds.
23
counts “in the interest of justice and for good cause shown.”
(§ 954; see Westerfield, at p. 689.)
“ ‘When exercising its discretion, the court must balance
the potential prejudice of joinder against the state’s strong
interest in the efficiency of a joint trial.’ [Citation.] To
successfully claim that the trial court abused its discretion in
denying a motion to sever, a ‘ “ ‘defendant must make a clear
showing of prejudice’ ” ’ by demonstrating that the denial
‘exceeded the bounds of reason.’ ” (Westerfield, supra, 6 Cal.5th
at p. 689.) We review the denial of a motion to sever for abuse of
discretion. (People v. Vargas (2020) 9 Cal.5th 793, 817.)
(1) The Counts Were Connected in Their
Commission
Joinder of the murder and the pimping offenses was
permissible because the offenses were “connected together in
their commission.” (§ 954.) Offenses committed at different
times and places against different victims are nevertheless
“ ‘connected together in their commission’ ” if they are linked by a
“ ‘common element of substantial importance.’ ” (Alcala v.
Superior Court (2008) 43 Cal.4th 1205, 1219 (Alcala).)
The murder and pimping offenses were linked by multiple
common elements of substantial importance: a shared witness
and shared physical evidence. (See People v. Lucky (1988)
45 Cal.3d 259, 276 [offenses were connected together in their
commission because “the facts underlying the joined offense
share certain characteristics”].) Williams was a primary witness
to both offenses. Both offenses involved the same gray Hyundai;
Landers used the Hyundai as a getaway car in the murder and as
a means of conducting business for pimping. Indeed, Landers’s
association with the gray Hyundai from his Manhattan Beach
24
arrest helped Detective Rose connect Landers to the murder.
Moreover, Landers used the same gun in both offenses—to shoot
Toca and to protect and/or intimidate Williams when he acted as
her pimp. (See Landry, supra, 2 Cal.5th at p. 76 [“the common
thread among all four offenses is the use or possession by
defendant of a prison-made stabbing weapon”].) The gun was
recovered in the course of Landers’ arrest on the pimping charge.
Thus, joinder was proper because a joint trial would conserve
judicial resources by ensuring there was no need to recall the
same witnesses in two separate proceedings. (See People v. Soper
(2009) 45 Cal.4th 759, 722 (Soper); see Alcala, supra, 43 Cal.4th
at p. 1217 [the language “connected together in their commission”
in section 954 reflects a legislative intent for a “very broad test
for joinder”].)
(2) Any Prejudice from Trying the Charges
Together Did Not Outweigh the Efficiencies
“Where joinder is proper under section 954, ‘[t]he burden is
on the party seeking severance to clearly establish that there is a
substantial danger of prejudice requiring that the charges be
separately tried.’ ” (People v. Gomez (2018) 6 Cal.5th 243, 275.)
“ ‘In determining whether a trial court’s refusal to sever charges
amounts to an abuse of discretion, we consider four factors:
(1) whether evidence of the crimes to be jointly tried is cross-
admissible; (2) whether some charges are unusually likely to
inflame the jury against the defendant; (3) whether a weak case
has been joined with a stronger case so that the spillover effect of
aggregate evidence might alter the outcome of some or all of the
charges; and (4) whether any charge carries the death penalty or
the joinder of charges converts the matter into a capital case.’
[Citation.] ‘We then balance the potential for prejudice to the
25
defendant from a joint trial against the countervailing benefits to
the state.’ [Citation.] However, ‘[i]f the evidence underlying the
joined charges would have been cross-admissible at hypothetical
separate trials, “that factor alone is normally sufficient to dispel
any suggestion of prejudice and to justify a trial court’s refusal to
sever properly joined charges.” ’ ” (Westerfield, supra, 6 Cal.5th
at p. 689.)
“We first consider whether evidence of each of the offenses
would be cross-admissible in ‘hypothetical separate trials.’ ”
(People v. Armstrong (2016) 1 Cal.5th 432, 456.) Typically, we
“determine whether evidence on each of the joined charges would
have been admissible, under Evidence Code section 1101[6], in
separate trials on the others.” (People v. Balderas (1985)
41 Cal.3d 144, 171-172, superseded by statute on other grounds
as stated in People v. Martin (1998) 64 Cal.App.4th 378, 385.)
6 Evidence Code section 1101 provides: “(a) . . . [E]vidence of
a person’s character or a trait of his or her character (whether in
the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when
offered to prove his or her conduct on a specified occasion. [¶]
(b) Nothing in this section prohibits the admission of evidence
that a person committed a crime, civil wrong, or other act when
relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or
accident, or whether a defendant in a prosecution for an unlawful
sexual act or attempted unlawful sexual act did not reasonably
and in good faith believe that the victim consented) other than
his or her disposition to commit such an act. [¶] (c) Nothing in
this section affects the admissibility of evidence offered to
support or attack the credibility of a witness.”
26
Landers contends there was no cross-admissibility of
evidence in hypothetical separate trials. Although most of the
evidence underlying either offense is not cross-admissible for any
of the purposes under Evidence Code section 1101, such as
motive, intent, or identity, one significant piece of evidence was
cross-admissible. The gun found under the Hyundai’s front
passenger seat that Landers used to protect Williams as his
prostitute was also used in the murder. By inference, this
evidence showed Landers was also involved in the murder. (See
People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 282 [“As to
the first factor, one very significant piece of evidence was cross-
admissible. A live nine-millimeter round found in the getaway
van used in the . . . robbery murder showed the same magazine
markings as the expended shells found at the scene of the
[separate] murders. This evidence showed that the same gun,
and thus inferentially its bearer, was present at both of the
murders”].) Nonetheless, because cross-admissibility exists here
to only a limited extent, it is not sufficient, standing alone, to
dispel any potential prejudice. (See ibid.)
Landers contends joinder was prejudicial because the
pimping count was weaker than the murder count. However,
while the pimping evidence was circumstantial and may have
been relatively weaker, it was sufficiently compelling on its own.
Williams and Landers were pulled over at 3:00 a.m. Williams
admitted she was a prostitute and had a knife in the car for
protection from other prostitutes. In the car were condoms,
women’s lingerie, and a phone flashing multiple text messages
from a common dating application. Landers had a loaded gun
under his seat, and he was holding Williams’s identification and
ATM cards. He had a “Broke Bitch Killa” neck tattoo, which an
27
expert testified signified “that girls he’s putting on the street, in
terms, better not be out of pocket,” and “when they return back
after a night’s work, they better have money or they’re going to
suffer consequences.”7 Together, the circumstantial evidence,
even if weaker than the murder evidence, demonstrated Landers
was controlling Williams’s prostitution for financial benefit. (See
Soper, supra, 45 Cal.4th at p. 781 [“[A]s between any two
charges, it always is possible to point to individual aspects of one
case and argue that one is stronger than the other. A mere
imbalance in the evidence, however, will not indicate a risk of
prejudicial ‘spillover effect,’ militating against the benefits of
joinder and warranting severance of properly joined charges”].)
And even if the pimping case were materially weaker overall,
that one factor alone is not dispositive.
Landers also argues both counts were likely to inflame the
jury with a “spillover effect of [] prejudice travel[ling] in both
directions.” Plainly the murder count was more inflammatory
than the pimping count because it resulted in a death (see People
v. Trujeque (2015) 61 Cal.4th 227, 260 [concluding charge not
involving bodily injury less inflammatory]), but “the animating
concern underlying this factor is not merely whether evidence
7 We review a trial court’s decision not to sever based on the
record when the motion was heard (Westerfield, supra, 6 Cal.5th
at p. 689; People v. Elliot (2012) 53 Cal.4th 535, 552), so here the
relevant facts were primarily those introduced at the preliminary
hearing. The evidence adduced then was similar to that
introduced at the trial, except at the preliminary hearing the
People did not introduce the evidence from the hotel surveillance
or the recorded statements of Landers and Williams while in the
back of the patrol car.
28
from one offense is repulsive, because repulsion alone does not
necessarily engender undue prejudice. [Citation.] Rather, the
issue is ‘whether “ ‘strong evidence of a lesser but inflammatory
crime might be used to bolster a weak prosecution case’ on
another crime.” ’ ” (People v. Simon (2016) 1 Cal.5th 98, 124,
italics added, citing People v. Capistrano (2014) 59 Cal.4th 830,
850, overruled on other grounds in People v. Hardy (2018)
5 Cal.5th 56, 104.) Here, the evidence from the murder count,
while undoubtedly disturbing, was not unduly prejudicial given
that the pimping count “was no more serious an offense and was
also supported by strong evidence.” (Simon, at p. 125 [joinder of
inflammatory murders involving rape against teenagers with
less-inflammatory gang-related murder was not prejudicial
because the inflammatory murders “cannot be characterized as
the ‘lesser’ crimes” and the less-inflammatory gang-related
murder was supported by strong evidence].)8
The benefits of joinder here were substantial and not
outweighed by the possible prejudice. (Soper, supra, 45 Cal.4th
at p. 781.) In the event of separate trials, there would have been
overlap of several matters. As discussed, the same gun and car
were pieces of evidence in both cases. The primary eyewitness to
the murder, Williams, was also an important witness to the
pimping count. Further, “as a general matter, a single trial of
properly joined charges promotes important systemic economies.
Whenever properly joined charges are severed, the burden on the
public court system of processing the charges is substantially
increased.” (Id. at p. 782.) Landers has failed to carry his burden
8 The final factor, “whether any charge carries the death
penalty” (Westerfield, supra, 6 Cal.5th at p. 689), does not apply
because Landers’s case is not a capital one.
29
to demonstrate a “clear showing of prejudice,” and thus we find
no abuse of discretion in the denial of the motion to sever.
(Alcala, supra, 43 Cal.4th at p. 1229.)
(3) There Was No Due Process Violation
Furthermore, “upon reviewing ‘events after the court’s
ruling,’ we do not find that ‘joinder actually resulted in “gross
unfairness” amounting to a denial of [Landers’s] constitutional
right to fair trial or due process of law.’ ” People v. Gomez, supra,6 Cal.5th at p. 277.) Landers bears the “high burden” of making
that showing. (Soper, supra, 45 Cal.4th at p. 783.) There is no
due process violation where the evidence of each crime is
“straightforward and distinct” and “independently ample” to
support a defendant’s conviction of both crimes. (Id. at p. 784.)
As discussed, the evidence at trial of pimping was sufficient
and straightforward, consisting of Ineguez’s testimony,
Williams’s testimony, and surveillance video. It was also distinct
from the evidence in the murder case, so there was no danger
that the jury would not be able to “compartmentalize” the
evidence supporting each case. (Soper, supra, 45 Cal.4th at
p. 784.)
The evidence in the murder case was likewise
straightforward and overwhelming. Landers had a clear motive
to shoot Toca. He was angry with Toca for slashing Williams’s
tire and texted Williams that he intended to “dead” Toca for
disrespecting him. There were several witness identifications.
Williams testified she saw Landers shoot Toca multiple times.
Several other witnesses, including Robinson, Williams’s
passenger, corroborated Williams’s identification of Landers as
the shooter. Surveillance video from the crime scene, which
showed a man resembling Landers walk away from the alley
30
where the shooting took place, further corroborated Williams’s
account. Lastly, Landers’s gun was used to kill Toca. Although
Landers testified Williams was the actual shooter, given the
ample evidence supporting Landers as the shooter, the jury could
reasonably disregard Landers’s version of events.
In addition to hearing ample evidence of each crime, the
jury was instructed with CALCRIM No. 3515, which stated,
“Each of the counts charged in this case is a separate crime. You
must consider each count separately and return a separate
verdict for each one.” This instruction “mitigated the risk of any
prejudicial spillover.” (Soper, supra, 45 Cal.4th at p. 784.)
Landers’s trial was not grossly unfair.
IV. Any Error in Admitting Opinion Testimony Was Harmless
Landers claims the trial court erred by impermissibly
allowing Ineguez to express his opinion on Landers’s guilt as to
the pimping charge and on whether Williams was telling the
truth when she denied Landers was her pimp. Landers further
contends the improper opinion testimony rendered the trial
fundamentally unfair under the due process clause. We conclude
any error was harmless.
During Ineguez’s trial testimony, the following exchange
occurred:
[The prosecutor]: Would – in your training and
experience, would it be common or uncommon for a
woman who is working as a prostitute to deny having
a pimp?
[Ineguez]: Yes.
31
[The prosecutor]: How?
[Ineguez]: By saying that they’re working rogue
would be the term that they would use.
[The prosecutor]: And did you – why would they say
that?
[Ineguez]: To avoid getting their pimp in trouble.
The Court: I don’t know what the relevance of this is.
Let’s move on now to this case, please.
Later in Ineguez’s testimony, the following exchange
occurred:
[The prosecutor]: And what else signal[]ed to you
that you had something more than just a traffic stop
on your hands here?
[Ineguez]: Based on my training and experience in
my work that I conducted on Santa Ana Boulevard, I
formed the opinion at that time that there was
pimping and pandering related crimes going on here.
[The prosecutor]: That these – this was consistent
with?
[Ineguez]: Yes.
32
[The prosecutor]: How so?
[Ineguez]: The fact that he was – there was a firearm
readily accessible to him, which is not uncommon for
pimps. Pimps will usually carry some sort of weapon
for protection of either themselves or the prostitute
that they’re with. [¶] The fact that there was the
women’s lingerie clothing in the backseat, the
condoms, again, the fact that she had outstanding
warrants and self admitted to being a prostitute. [¶]
And most importantly, the messages that were
coming through on the cellphone, that was cellphone
later determined to be [Landers’s]. So. [¶] I formed
the opinion based on that, that he was escorting her
around or accompanying her while she was meeting
individuals on these dates.
[Defense counsel]: I’m going to object to that as an
improper conclusion and move to strike.
The Court: I’m going to overrule it as the way he
phrased it. [¶] Go ahead.
An expert witness’s testimony “in the form of an opinion is
limited to such an opinion as is: [¶] (a) Related to a subject that
is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact; and [¶] (b) Based on matter
(including [the expert’s] special knowledge, skill, experience,
training, and education) . . . that is of a type that reasonably may
be relied upon by an expert in forming an opinion upon the
33
subject to which his testimony relates.” (Evid. Code, § 801.) The
culture of pimping and prostitution is sufficiently beyond
common experience that the opinion of an expert on the subject is
deemed helpful to the trier of fact. (Leonard, supra,
228 Cal.App.4th at pp. 492-493.)
An expert’s opinion “is not objectionable because it
embraces the ultimate issue to be decided by the trier of fact.”
(Evid. Code, § 805.) An expert may also express opinions based
on hypothetical questions that track the evidence in the case.
(People v. Vang (2011) 52 Cal.4th 1038, 1048 (Vang).) However,
“[a]n expert witness may not give an opinion as to whether
another witness is telling the truth, or whether the defendant is
guilty.” (People v. Lapenias (2021) 67 Cal.App.5th 162, 176
(Lapenias); accord, People v. Coffman and Marlow (2004)
34 Cal.4th 1, 81-83.) The reason for this rule is that
impermissible opinion testimony is of “ ‘ “no assistance to the
trier of fact. To put it another way, the trier of fact is as
competent as the witness to weigh the evidence and draw a
conclusion on the issue of guilt.” ’ ” (Vang, at p 1048; accord,
People v. Duong (2020) 10 Cal.5th 36, 60.) “We review the trial
court’s decision to admit expert testimony for abuse of discretion.”
(Leonard, supra, 228 Cal.App.4th at p. 493.)
Landers contends the trial court erred when it allowed
Ineguez to testify to his opinions “there was pimping and
pandering related crimes going on here” and “[Landers] was
escorting [Williams] around or accompanying her while she was
meeting individuals on these dates.” That testimony, Landers
argues, impermissibly opined on Landers’s guilt. Landers also
contends the court should not have allowed Ineguez to testify
about Williams’s credibility by answering “[y]es” to the
34
prosecutor’s question whether it would “be common or uncommon
for a woman who is working as a prostitute to deny having a
pimp.”
Landers only objected to Ineguez’s statement that he
formed the opinion “that [Landers] was escorting [Williams]
around or accompanying her while she was meeting individuals
on these dates.” Thus, his other claims of error are forfeited on
appeal.9 (See People v. Garlinger (2016) 247 Cal.App.4th 1185,
1193 [defendant did not object to expert testimony, forfeiting the
contention on appeal that the testimony was inadmissible].)
However, even assuming Landers did not forfeit his other
claims of error and Ineguez’s challenged statements were
improper, any error was harmless. “ ‘The erroneous admission of
expert testimony only warrants reversal if “it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” ’ ”
(Lapenias, supra, 67 Cal.App.5th at pp. 176-177.) We see no
reasonable probability Landers would have achieved a more
favorable result in the absence of the challenged testimony. The
testimony cited by Landers was brief. Neither defense counsel
nor the People mentioned it during closing arguments. (See id. at
p. 180 [expert’s improper opinion testimony was harmless in part
because testimony was brief, as were mentions of the testimony
by both counsel during closing].) The remaining evidence against
Landers on the pimping charge was ample, as discussed.
9 Landers asserts that an objection would have been futile,
but we find no support for that assertion.
35
Moreover, the trial court instructed the jury with
CALCRIM Nos. 226 and 332, which told the jury they were the
sole judge of the credibility of the witnesses and they were not
required to accept Ineguez’s testimony as true. (See CALCRIM
No. 226 [“You alone must judge the credibility or believability of
the witnesses”]; CALCRIM No. 332 [“You must consider the
[expert] opinions, but you are not required to accept them as true
or correct. The meaning and importance of any opinion are for
you to decide”].) “We presume the jurors understood and followed
the instructions.” (Lapenias, supra, 67 Cal.App.5th at p. 180; see
People v. Coffman and Marlow, supra, 34 Cal.4th at p. 83
[expert’s improper opinion testimony was harmless in part
because court instructed jury that it was not bound by expert’s
opinion].) Landers has not established prejudicial error.10
V. The Court’s Admission of the Entire Perkins Operation Was
Erroneous but Harmless
Landers contends the trial court erred in admitting the
recording of the Perkins operation as a prior consistent statement
under Evidence Code section 791 and the error deprived him of
due process of law. We agree with Landers in part. The court
should not have admitted the entire recording as a prior
consistent statement. However, the error was harmless.
10 We also reject Landers’s contention that the admission of
Ineguez’s testimony violated the due process clause. “Application
of the ordinary rules of evidence generally does not impermissibly
infringe on a . . . defendant’s constitutional rights. [Citation.]
[Landers] fails to persuade us this case constitutes an exception
to that general rule.” (People v. Kraft (2000) 23 Cal.4th 978,
1035-1036; accord, People v. Prince (2007) 40 Cal.4th 1179, 1229.)
36
A. Factual Background
During Williams’s cross-examination, defense counsel
asked her several questions about her interactions with the
detectives while in custody on a warrant for murder. Defense
counsel asked, “[B]efore you gave a statement to the detectives,
one of the things Detective Mendoza told you was ‘Straight up it’s
you or him.’ Right?” Williams responded, “Yes,” and agreed with
defense counsel that she understood Mendoza’s question “to mean
that the detectives were either going to go after [her], or they
were going to go after Mr. Landers.”
Later in the trial, during cross-examination of Mendoza,
defense counsel asked about the interview methods Mendoza
used with Williams. Counsel asked Mendoza if he threatened
Williams or implied she “should put the blame on someone.”
After Mendoza denied doing so, defense counsel asked if Mendoza
considered the statement “it’s either you or him” a threat or an
attempt to place blame. Mendoza again answered in the
negative. Then, defense counsel asked Mendoza if he told
Williams before the interview, “Straight up, it’s either you or
him.” Mendoza denied making that statement to Williams.
At that point, defense counsel attempted to play the portion
of the Perkins operation where Mendoza told Williams, “it’s you
or him.” The prosecutor requested a sidebar, and the jury was
excused. The prosecutor and defense counsel discovered their
transcripts of the Perkins operation were slightly different.
Defense counsel’s transcript showed Mendoza saying, “it’s you or
him,” while the prosecutor’s transcript said “it’s you and him.”
The court concluded the jury would decide what was said.
The parties also discussed whether other statements
during the Perkins operation, besides Mendoza’s statement, were
37
admissible. Defense counsel argued Williams’s statement, “It’s
gonna be him. I’m not going down for this shit,” made shortly
after Mendoza’s “it’s you or him” statement, was relevant. The
prosecutor responded the entire Perkins operation was relevant,
and the trial court agreed. The court articulated, and defense
counsel agreed, that the defense wished to introduce Mendoza’s
statement “it’s you or him” to suggest the statement motivated
Williams to lie and “save herself” by pointing the finger at
Landers. The court ruled such an implied charge of a motive
made the entire Perkins operation admissible as a prior
consistent statement. Defense counsel objected to playing the
entire Perkins operation because Williams’s “motive [to lie]
existed from the moment [she was] arrested.”
When Mendoza returned to the stand for cross-
examination, defense counsel played the following portion of the
Perkins operation:
Detective Mendoza: My partner just got here.
Williams: Okay.
Detective: All right? Listen, straight up, it’s you or
him.
Williams: I understand.
Detective: Listen, we see him get in the car, in your
car. We see you back up, wearing the bandana. I
mean, it’s you or him. It’s just no joke. We see you go
around the block. You feel me?
38
Williams: Mm-hmm. I understand.
Detective: Okay, I’ll be right back, okay? He’s here.
Williams: Okay.
During redirect, the prosecutor played the entire recording of the
Perkins operation.
During the Perkins operation, Williams initially denied
knowing anything about the murder. However, after Mendoza
told Williams, “Miss Toca is dead,” and “I’m gonna show you some
stuff that’s gonna blow your mind,” Williams suggested to her
cellmate that Landers “probably” killed Toca. When her cellmate
asked, “You think he got her?,” Williams responded, “I hope
didn’t do that. He, probably, did.” Williams then said, “I didn’t
fucking do nothing. . . [I]f he did do that shit to that girl, that’s
not my problem. I – I didn’t do nothing. . . . I’m not about to
take this shit for him neither . . . cause I didn’t do that. . . . I’m
not taking no hits for nobody. . . . [H]e, probably, did it when I – I
took him to the bike shop. . . .”
After Mendoza told Williams, “We see you back up, wearing
the bandana. I mean, it’s you or him,” Williams continued to
deny involvement in the murder. Williams said to her cellmate,
“It’s gonna be him. I’m not going down for this shit. . . . I’m not
gonna take no mother-fucking case. . . . I’m not going down for
this, ‘cause I didn’t do nothing. I didn’t do nothing. I did not do
nothing. All I was told was to come and get this boy. . . . I’m not
going down for it. . . . I’m not going down for it.”
39
B. Relevant Legal Principles
“Hearsay is an out-of-court statement offered to prove the
truth of its content.” (People v. Valencia (2021) 11 Cal.5th 818,
831; see Evid. Code, § 1200, subd. (a).) Any out-of-court
statement made by a testifying witness, offered to prove the truth
of the matter asserted, is inadmissible hearsay unless it meets
one of the recognized exceptions. (Evid. Code, § 1200, subds. (a)
& (b); People v. Alvarez (1996) 14 Cal.4th 155, 185.) Evidence
Code sections 1236 and 791 set forth the exception for a testifying
witness’s prior consistent statements.
Evidence Code section 1236 provides: “Evidence of a
statement previously made by a witness is not made inadmissible
by the hearsay rule if the statement is consistent with his
testimony at the hearing and is offered in compliance with
Section 791.”
Evidence Code section 791 provides: “Evidence of a
statement previously made by a witness that is consistent with
his testimony at the hearing is inadmissible to support his
credibility unless it is offered after: [] (a) Evidence of a
statement made by him that is inconsistent with any part of his
testimony at the hearing has been admitted for the purpose of
attacking his credibility, and the statement was made before the
alleged inconsistent statement; or [¶] (b) An express or implied
charge has been made that his testimony at the hearing is
recently fabricated or is influenced by bias or other improper
motive, and the statement was made before the bias, motive for
fabrication, or other improper motive is alleged to have arisen.”
We review a trial court’s evidentiary rulings for an abuse of
discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711.) Error in
admitting hearsay is reviewed under the harmless error standard
40
of People v. Watson (1956) 46 Cal.2d 818. (People v. Duarte
(2000) 24 Cal.4th 603, 618-619.)
C. Analysis
The People argue the entire Perkins operation was
admissible under both subdivisions (a) and (b) of Evidence Code
section 791. Starting with subdivision (a), the People argue
Williams’s prior statements were properly admitted because her
statement to Mendoza, “It’s gonna be him. I’m not going down for
this shit,” was inconsistent with her trial testimony. However,
although defense counsel contemplated playing that statement by
Williams for the jury, he ultimately did not. Instead, defense
counsel played a portion of the Perkins operation that included
only Williams’s statements of “Okay” and “I understand.” Under
subdivision (a), a witness’s prior consistent statement is
admissible only if the witness’s inconsistent statement “has been
admitted” and the prior consistent statement was made before
the inconsistent statement. (Evid. Code, § 791, subd. (a), italics
added.) Without any inconsistent statement by Williams,
subdivision (a) did not apply.
Turning to subdivision (b), Landers does not contest that
defense counsel made an implied charge of fabrication during
Williams’s and Mendoza’s trial testimony. As the trial court
correctly noted, defense counsel’s questions to Williams and
Mendoza regarding Mendoza’s use of the words “it’s you or him”
created an implied charge that Mendoza’s words improperly
motivated Williams to lie and “save herself.” (See People v.
Bunyard (1988) 45 Cal.3d 1189, 1209 [“The mere asking of
questions may raise an implied charge of improper motive”],
abrogated on other grounds in People v. Diaz (2015) 60 Cal.4th
1176, 1191.) But Landers contends Williams’s motive to fabricate
41
arose before Mendoza’s “it’s you or him” statement during the
Perkins operation, because Williams already knew she was in jail
in connection with the murder. Thus, Landers contends the
Perkins operation was not admissible under subdivision (b) of
Evidence Code section 791.
We reject Landers’s contentions, for the most part. It is
possible for a case to include more than one event leading to a
motive to fabricate. (People v. Jones (2003) 30 Cal.4th 1084,
1106-1107.) In cases where there is more than one motive to lie,
the prior consistent statement is admissible if it was made before
“the existence of any one or more of the biases or motives that,
according to the opposing party’s express or implied charge, may
have influenced the witness’s testimony.” (People v. Hayes (1990)
52 Cal.3d 577, 609, italics added; accord, Jones, at pp. 1106-1107
[witness’s prior statement to police before entering into plea
bargain was admissible even though witness had an additional
motive to lie when first contacted by police].) While a witness
may have a “motive to minimize potential penal liability” as soon
as the witness is arrested for the crime, “the focus under
Evidence Code section 791 is the specific agreement or other
inducement suggested by cross-examination as supporting the
witness’s improper motive.” (People v. Noguera (1992) 4 Cal.4th
599, 630.) Thus, Williams’s prior consistent statements were
admissible so long as they were made before “any one or more of
the biases or motives” arose. (Hayes, at p. 609, italics added.)
Even though Williams may already have had a motive to lie
because she knew she had been arrested in connection with a
murder, under the defense’s theory an additional motive to
fabricate arose when Mendoza told her “it’s you or him.”
42
Therefore, the court properly admitted Williams’s statements
made prior to Mendoza’s statement.
Only some of Williams’s statements in the Perkins
operation were made before that juncture, however. Williams’s
statements to her cellmate made after Mendoza’s “it’s you or him”
statement were not admissible under Evidence Code section 791,
subdivision (b). (See People v. Jones, supra, 30 Cal.4th at
p. 1007.) Therefore, the court abused its discretion when it
admitted the entire Perkins operation, which included Williams’s
subsequent statements.
But admission of Williams’s subsequent statements during
the Perkins operation was harmless. Mendoza’s statement “it’s
you or him” came towards the very end of the Perkins operation.
Thus, Williams’s subsequent statements made up only a small
portion of the Perkins recording. (Cf. People v. Penunuri (2018)
5 Cal.5th 126, 166 [erroneously admitted testimony held
harmless where the witnesses’ statements were “brief” and “a
small part of the prosecution’s case”]; People v. Sully (1991)
53 Cal.3d 1195, 1242 [allegedly improper evidence “represented
but a small portion of the information received by the jury”].)
More importantly, Williams’s subsequent statements were
substantially the same as her statements before Mendoza’s words
“it’s you or him.” Before Mendoza told Williams “it’s you or him,”
Williams told her cellmate that she did not do anything, that she
refused to take the blame, and that Landers “probably” killed
Toca. After Mendoza’s warning, Williams continued to say that
she did not do anything. In that sense, Williams’s subsequent
statements were merely cumulative of her prior admissible
statements. (Cf. People v. Farnam (2002) 28 Cal.4th 107, 158-159
[any error in admitting prior consistent statement was harmless
43
because it “merely corroborated other testimony at trial”].) Thus,
had Williams’s subsequent statements been excluded, it is not
reasonably probable that Landers would have secured a more
favorable result.11 (See People v. Johnson (2022) 12 Cal.5th 544,
611 (Johnson).)
VI. Any Error in Admitting “Bad Character” Evidence About
Landers Was Harmless
Landers contends portions of Mendoza and Rose’s interview
of Williams contained improper evidence of Landers’s “bad
character and uncharged conduct” that was inadmissible under
Evidence Code sections 1101 and 352.
The complained-of prosecution evidence followed the cross-
examination of Williams. Defense counsel, seeking to discredit
Williams, had impliedly charged that the detectives coerced
Williams into accusing Landers of shooting Toca. The
prosecution sought to admit Williams’s entire interview with
Mendoza and Rosa to rebut that implication. The trial court
concluded only the introductory part12 of the interview was
relevant for that purpose. Defense counsel objected that a “whole
section” of the introductory part of the interview was “highly
prejudicial under [Evidence Code section] 352.” In particular, one
11 Nor were Landers’s due process rights violated by
admission of the evidence. His due process claim is “without
merit for the same reasons that [his] state law claim[]” is without
merit. (People v. Prince, supra, 40 Cal.4th at p. 1229.)
12 The court referred to the introductory part as “introductory
statements, background questions, and then more introductory
statements by the detective prior to getting into the substance of
the interview.”
44
of the detectives said, in reference to Landers, “he’s a bad dude,”
“[h]e’s a bad guy,” and he had “a lot of, uh, arrests and stuff like
that.” The detective also told Williams, “[Y]ou’re seen as a
victim” who is “forced to do things.” After the court concluded the
evidence was not “so prejudicial”, the prosecution played these
statements as well as Rose’s statement, “And these dudes they
manipulate women, they do bad things, they tell you they love
you or whatever and then you find out that they’re with some
other women or doing all sorts of nasty things, and you’re trying
to take care of them.” Landers did not specifically object to this
last statement.
Evidence of “a person’s character or trait of his or her
character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion.” (Evid. Code, § 1101, subd. (a).) “Evidence
Code section 1101, subdivision (a) sets forth the ‘strongly
entrenched’ rule that propensity evidence is not admissible to
prove a defendant’s conduct on a specific occasion.” (People v.
Jackson (2016) 1 Cal.5th 269, 299.) This prohibition does not
apply to evidence “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge,
identity . . .) other than [a defendant’s] disposition to commit
such an act.” (Evid. Code, § 1101, subd. (b).) Nor does this
prohibition affect “the admissibility of evidence offered to support
or attack the credibility of a witness.” (Evid. Code, § 1101, subd.
(c).)
Under Evidence Code section 352, the court must
determine whether the probative value of evidence is
substantially outweighed by the probability that its admission
45
would create substantial danger of undue prejudice, confusing
the issues, or misleading the jury. (Evid. Code, § 352; People v.
Ewoldt (1994) 7 Cal.4th 380, 404, superseded by statute on other
grounds as stated in People v. Robertson (2012) 208 Cal.App.4th
965, 991.) The trial court “enjoys broad discretion” in engaging in
this balancing test, and its ruling will not be disturbed on appeal
absent an abuse of discretion. (People v. Lewis (2001) 26 Cal.4th
334, 374.)
Landers acknowledges he did not preserve objections under
Evidence Code section 1101 by failing to object on that basis.
(See People v. Pineda (2022) 13 Cal.5th 186, 236 [objection under
Evidence Code section 352 did not preserve claim of evidentiary
error under Evidence Code section 1101].) But he did object
under Evidence Code section 352 to the bulk of the statements by
the detectives that he contends were improperly admitted.
Even if the court erred in admitting the detectives’
statements, the error was harmless. In general, “the application
of ordinary rules of evidence like Evidence Code section 352 does
not implicate the federal Constitution, and thus we review
allegations of error under the ‘reasonable probability’ standard of
Watson.” (People v. Marks (2003) 31 Cal.4th 197, 227.) Any error
in admitting “prior bad acts” evidence under Evidence Code
section 1101 would be reviewed under the same standard. (See
Johnson, supra, 12 Cal.5th 544, 611.)
It is not reasonably probable a result more favorable to
Landers would have been reached absent the bad character
evidence about Landers. (Johnson, supra, 12 Cal.5th at p. 611.)
The detectives’ statements that Landers was a “bad dude” with
“arrests” who “forced” and “manipulate[d] women” was brief. The
prosecutor did not mention the detectives’ statements at any
46
point during closing argument. And the fact that the detectives
stated Landers had prior “arrests” could not have materially
affected the verdict given Landers provided that evidence himself
when he testified he had previously been arrested and convicted
of crimes, including drug offenses and two counts of armed
robbery. Moreover, as discussed, there was overwhelming
evidence of Landers’s guilt. (See People v. Doolin (2009)
45 Cal.4th 390, 439 [any error in admitting bad character
evidence was harmless because “[t]here was overwhelming
evidence of defendant’s guilt”]; People v. Nguyen (2010)
184 Cal.App.4th 1096, 1120 [error in admitting propensity
evidence was not prejudicial because “[t]he People’s case was very
strong”].)
Further, the court, on its own motion, provided an
instruction on the limited purpose of the detectives’ statements at
the time they were admitted into evidence. The court stated,
“[T]he statements of the detectives in regards to the interview are
not admitted for the truth of the matter asserted. Okay? The
only relevance of those statements are for you to evaluate what
impact they may have had on the witness and what she
subsequently said or didn’t say.” This limiting instruction, which
we presume the jury followed, further diminishes the possibility
of any prejudice from the admission of the detectives’ statements
casting aspersions on Landers. (See People v. Chhoun (2021)
11 Cal.5th 1, 30; People v. Waidla (2000) 22 Cal.4th 690, 725
[“The presumption is that limiting instructions are followed by
the jury.”].)
47
VII. Landers Forfeited His Claim of Prosecutorial Misconduct
and Cannot Establish Ineffective Assistance of Counsel
Landers contends the prosecutor committed misconduct by
questioning Landers about a statement Toca allegedly gave to the
police in which she snitched on him, when the prosecution had no
admissible evidence to prove Landers had knowledge of this. He
argues this misconduct deprived him of due process and his Sixth
Amendment right to confrontation. We conclude Landers
forfeited the issue on appeal and failed to establish his attorney’s
failure to object was prejudicial.
A. Background
During trial, the prosecution filed a motion in limine asking
the court to admit Toca’s statements regarding an incident in Las
Vegas that had resulted in gun and drug charges for Landers.
The prosecution alleged Toca and Landers were staying at a
house in Las Vegas when police officers raided the home under a
search warrant. The officers found a gun and caught Landers
flushing drugs down a toilet. Both Landers and Toca were
arrested. Toca told officers the gun belonged to Landers and gave
officers an estimation of the amount of drugs that were in the
house. The prosecution’s theory was that Landers knew Toca
had cooperated with the police and that Toca’s “snitching”
provided another motive for Landers to kill her.
The court determined there was no admissible evidence
that Landers knew Toca had cooperated. The court ruled the
prosecution could question Landers to determine if what
48
happened in Las Vegas gave him a motive, but if Landers denied
knowledge of the snitching, they would “go from there.”13
During cross-examination of Landers, the prosecutor asked
him if “the only reason” he was upset with Toca was because she
had slashed Williams’s car tire. Landers replied, “Yes.” At this
point, the cross-examination paused and the parties revisited the
admissibility of the Las Vegas incident outside of the presence of
the jury. Defense counsel argued that “what was happening in
Las Vegas” should be excluded “because there’s no foundation,”
and the court agreed. However, the court added that even if
there was no independent evidence to prove motive, the
prosecutor at least had “a good faith [basis] to ask the question.”
Thereafter, the cross-examination of Landers resumed, and
the following exchange took place:
[Prosecutor]: Sir, your ex friend’s funeral, Ted, was
in Los Angeles, not Vegas, correct?
[Landers]: Yes.
[Prosecutor]: But you were in Vegas in November
2018 with [Toca]. Right?
[Landers]: Yes.
13 The court ruled under Evidence Code section 352 that the
prosecution could not question Landers about the Las Vegas
incident for purposes of impeaching him with prior bad acts.
49
[Prosecutor]: And you got arrested with her out of
her apartment in Las Vegas. Right?
[Landers]: Yes.
[Prosecutor]: And she snitched on you during that
arrest. Right?
[Landers]: No.
[Defense counsel]: Objection: Calls for – no
foundation as to –
The Court: Well, overruled. The question is whether
he believes she snitched on him. [¶] Go ahead.
[Prosecutor]: You have not had an opportunity to
read Toca’s statements to police. Right?
[Landers]: No.
[Prosecutor]: And isn’t that what really changed your
relationship with Toca?
[Landers]: No.
[Prosecutor]: You – Toca disrespected you one too
many times. Isn’t that right?
[Landers]: No.
50
[Prosecutor]: And that’s why you were done with
her?
[Landers]: No.
[Prosecutor]: And now that you’ve seen Reshay
snitch on you, you’re done with her, too. Right?
[Landers]: No.
B. Analysis
Landers concedes the prosecutor was permitted to ask
Landers if he knew Toca had “snitched” on him after they were
arrested in Las Vegas. However, after Landers denied knowing
that, he contends the prosecutor’s additional questions
constituted misconduct because the prosecutor had no admissible
evidence to prove the facts underlying the questions.
“ ‘ “A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.” ’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 548,
657; accord, People v. Hoyt (2020) 8 Cal.5th 892, 943.) It is
improper for a prosecutor “to ask questions which clearly
suggest[] the existence of facts which would [be] harmful to
defendant, in the absence of a good faith belief by the prosecutor
that the questions would be answered in the affirmative, or with
a belief on his part that the facts could be proved, and a purpose
to prove them, if their existence should be denied.” (People v.
Perez (1962) 58 Cal.2d 229, 241, disapproved on other grounds in
51
People v. Green (1980) 27 Cal.3d 1, 32, 34; accord, People v.
Bolden (2002) 29 Cal.4th 515, 562; People v. Pitts (1990)
223 Cal.App.3d 606, 734.)
We agree the prosecutor’s additional questions were
improper. By the time Landers testified, the prosecutor did not
have a good faith belief she could offer independent evidence that
Landers knew Toca had snitched. Thus, once Landers said he did
not know about Toca snitching on him, the prosecutor should
have ceased questioning on that topic. (See People v. Perez,
supra, 58 Cal.2d at p. 241.)
Nonetheless, Landers forfeited his claim of prosecutorial
misconduct by failing to object. “ ‘ “As a general rule a defendant
may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made
an assignment of misconduct and requested that the jury be
admonished to disregard the impropriety.” ’ ” (People v. Beck and
Cruz, supra, 8 Cal.5th at p. 657.) “ ‘The lack of a timely objection
and request for admonition will be excused only if either would
have been futile or if an admonition would not have cured the
harm.’ ” (Hoyt, at pp. 942-943; accord, People v. Powell (2018)
6 Cal.5th 136, 171.)
Landers’s trial counsel objected on foundation grounds to
the prosecutor’s first question about Toca snitching but did not
make any further objections or request that the jury be
admonished. Because Landers did not make any attempt to
object to the prosecutor’s additional questions on proper grounds,
we cannot say that the lack of an objection would have been
futile. While “there may be cases in which an objection and
request for admonition would have been futile,” there is no
evidence here that the trial court “appear[ed] disposed to overrule
52
additional objections, and perhaps even to criticize defense
counsel in front of the jury.” (See People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 858.) Thus, we conclude the claim
is forfeited on appeal. (See People v. Bolden, supra, 29 Cal.4th at
p. 564 [holding argument was forfeited where “the defense did
not object that the prosecutor was engaging in misconduct by
implying facts the prosecutor was unable to prove”].)
Landers argues his attorney was ineffective for failing to
object to the prosecutor’s additional questions. To demonstrate
ineffective assistance of counsel, Landers must show his trial
counsel’s performance fell below an objective standard of
reasonableness, and that he was prejudiced by trial counsel’s
performance. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland).)
“As [our Supreme Court has] noted repeatedly, the mere
failure to object rarely rises to a level implicating one’s
constitutional right to effective legal counsel.” (People v. Boyette
(2002) 29 Cal.4th 381, 433.) “Moreover, ‘[i]f the record on appeal
fails to show why counsel acted or failed to act in the instance
asserted to be ineffective, unless counsel was asked for an
explanation and failed to provide one, or unless there simply
could be no satisfactory explanation, the claim must be rejected
on appeal.’ ” (People v. Huggins (2006) 38 Cal.4th 175, 206.)
Furthermore, “a court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies.” (Strickland, supra, 466 U.S. at p. 697; see People v.
King (2010) 183 Cal.App.4th 1281, 1298 [“If [the defendant]
cannot show prejudice, we may reject his claim of ineffective
assistance, and need not address the adequacy of trial counsel’s
53
performance.”].) The defendant “bears the burden of showing
prejudice, that is, a ‘reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 676,
quoting Strickland, at p. 694.)
Landers has not met this burden. The prosecutor’s
questions were brief, and the prosecutor did not refer to the issue
at all during closing arguments. Further, the trial judge
instructed the jury with CALCRIM No. 222, which stated in
relevant part: “Nothing that the attorneys say is evidence. . . .
Their questions are not evidence. Only the witnesses’ answers
are evidence. . . . Do not assume that something is true just
because one of the attorneys asked a question that suggested it
was true.” We presume that the jury followed its instructions
and did not consider the prosecutor’s questions as evidence. (See
People v. Chhoun, supra, 11 Cal.5th at p. 30.) Moreover, as
discussed, there was overwhelming evidence of Landers’s guilt for
the murder and ample evidence of a motive, namely that Toca
had slashed Williams’s tire. Based on the circumstances, we
conclude Landers has failed to demonstrate prejudice. (See
People v. Young (2019) 7 Cal.5th 905, 933 [prosecutorial
misconduct was harmless because there was “no reasonable
probability that the prosecutor’s fleeting remark had any effect
on the jury, particularly given the overwhelming evidence of
defendant’s guilt”]; People v. Seumanu (2015) 61 Cal.4th 1293,
1345 [prosecutor’s misconduct was harmless where “the evidence
of guilt was strong” and the court instructed the jury “that the
arguments of counsel are not evidence”].)
54
VIII. There is No Cumulative Error
Landers argues the cumulative effect of the claimed errors
deprived him of due process of law and a fair trial. “Cumulative
error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant. [Citations.]
Although a defendant is entitled to a fair trial, he or she is not
entitled to ‘a perfect one.’ ” (People v. Capers (2019) 7 Cal.5th
989, 1017.) Since we have rejected all of Landers’s claims of
error, there is nothing to cumulate. Landers received a fair trial
and has failed to show any error requiring reversal of his
convictions.
IX. The Court Did Not Err in Denying Landers’s Request To
Dismiss His Prior Strike Convictions and Firearm
Enhancement
As pertinent here, the trial court sentenced Landers to 75
years to life for the murder pursuant to the Three Strikes law
and 25 years to life for the firearm enhancement. Landers
contends the court erred in declining to dismiss his prior strike
convictions and firearm enhancement under section 1385,
subdivision (c), added by Senate Bill No. 81 (2021-2022 Reg.
Sess.) We reject Landers’s contentions.
A. Section 1385, Subdivision (c), Does Not Apply to Prior
Strike Convictions
Section 1385, subdivision (c)(1), provides, “Notwithstanding
any other law, the court shall dismiss an enhancement if it is in
the furtherance of justice to do so, except if dismissal of that
enhancement is prohibited by any initiative statute.” Subdivision
(c)(2) of section 1385 provides, “In exercising its discretion under
this subdivision, the court shall consider and afford great weight
55
to evidence offered by the defendant to prove that any of the
mitigating circumstances in subparagraphs (A) to (I) are present.
Proof of the presence of one or more of these circumstances
weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would
endanger public safety.”
Landers contends the language and legislative history of
section 1385 indicate that a prior strike conviction constitutes an
enhancement under section 1385. Specifically, Landers argues,
“Because the purpose of section 1385, subdivision (c), is to reduce
the disparities caused by penalty provisions that increase
sentences, ‘enhancement’ should be given the broadest possible
meaning to effectuate the statute’s purpose. ‘Enhancement’ must
mean a penalty allegation that increases a defendant’s
punishment beyond that authorized by the offense of conviction
alone, including provisions of the Three Strikes law.” We are not
persuaded.
“Whether the amendments to section 1385 apply to prior
strike convictions is a question of statutory interpretation which
we review de novo.” (People v. Burke (2023) 89 Cal.App.5th 237,
242 (Burke).) Burke squarely addressed the argument made by
Landers, holding as follows: “It is . . . well established that the
Three Strikes law is not an enhancement; it is an alternative
sentencing scheme for the current offense. . . . Because the
statutory language is clear and unambiguous, we follow its plain
meaning and do not consider the legislative history cited by
defendant. . . . The plain language of subdivision (c) of section
1385 applies only to an ‘enhancement,’ and the Three Strikes law
is not an enhancement.” (Burke, at pp. 243-244.) Since Burke,
every court that has addressed the issue has agreed with its
56
holding. (People v. McDowell (2024) 99 Cal.App.5th 1147, 1155-
1156; People v. Dain (2024) 99 Cal.App.5th 399, 410-411, review
granted May 29, 2024, S283924; People v. Olay (2023)
98 Cal.App.5th 60, 68-69; People v. Tilley (2023) 92 Cal.App.5th
772, 776, fn. 2.) We decline to break with this authority.
Because a strike is not considered an enhancement, section 1385,
subdivision (c), did not require the trial court to dismiss
Landers’s prior strike convictions.
B. The Court Was Not Required to Dismiss the Firearm
Enhancement
Relying on section 1385, subdivision (c)(2)(B), Landers
argues the court had a mandatory duty to dismiss the firearm
enhancement. That provision states that when “multiple
enhancements are alleged in a single case,” “all enhancements
beyond a single enhancement shall be dismissed.” (§ 1385, subd.
(c)(2)(B).)
While the language “ ‘shall be dismissed’ ” suggests
dismissal is mandatory, we have previously held this language
must be considered in the “ ‘ “context of the statute as a whole.” ’ ”
(People v. Anderson (2023) 88 Cal.App.5th 233, 239, review
granted Apr. 19, 2023, S278786.) We concluded in Anderson that
“the trial court has discretion to dismiss sentencing
enhancements; certain circumstances weigh greatly in favor of
dismissal; and a finding of danger to public safety can overcome
the circumstances in favor of dismissal.” (Ibid., fn. omitted;
accord, People v. Renteria (2023) 96 Cal.App.5th 1276, 1284-1289;
People v. Mendoza (2023) 88 Cal.App.5th 287, 295-297; People v.
Lipscomb (2022) 87 Cal.App.5th 9, 17-21.) The trial court here
found Landers presented a danger to society. Landers has not
provided us with a reason to depart from our prior holding that a
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trial court retains discretion to not dismiss enhancements under
section 1385, subdivision (c)(2)(B), when, as here, it finds the
defendant would pose an unreasonable risk of danger to the
public.
C. The Court Did Not Abuse Its Discretion by Declining
to Dismiss the Firearm Enhancement
Landers also argues the court abused its discretion in
declining to dismiss the firearm enhancement because it did not
properly consider whether Landers would be a danger to public
safety “upon release.”
We review the trial court’s refusal to dismiss an
enhancement under section 1385 for abuse of discretion. (Nazir
v. Superior Court (2022) 79 Cal.App.5th 478, 490.) “A trial court
may abuse its discretion where ‘its decision is so irrational or
arbitrary that no reasonable person could agree with it,’ ‘where
the trial court was not “aware of its discretion” ’ to dismiss a
sentencing allegation under section 1385, or ‘where the court
considered impermissible factors in declining to dismiss.’ ” (Id. at
pp. 689-690.)
The court properly considered whether Landers was a
danger to public safety. The trial court found “Landers has
demonstrated that he constitutes a danger to public safety” based
on the brutality of the murder. Specifically, the court noted
Landers had a relationship with Toca for years and yet shot her
14 times, including in the face.
Landers cites People v. Williams (2018) 19 Cal.App.5th
1057, for the proposition that, when considering whether a
defendant would pose a danger to public safety, the trial court
must conduct a “forward-looking inquiry” and “look to when a
defendant would be released.” (Id. at p. 1063; accord, People v.
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Gonzalez (2024) 103 Cal.App.5th 215, 228-229.) Landers
contends the trial court did not consider his future danger to
public safety.
“ ‘The trial court is not required to state reasons for
declining to exercise its discretion under section 1385’ [citations],
and ‘is presumed to have considered all of the relevant factors in
the absence of an affirmative record to the contrary’ [citation].”
(People v. Brugman (2021) 62 Cal.App.5th 608, 637.) “When, as
here, the record is silent as to whether the court conducted a
forward-thinking inquiry, we presume the court ‘ “correctly
applied the law.” ’ ” (Ibid.) Nothing in the record rebuts that
presumption. The court did not abuse its discretion.
X. The Court’s Restitution Order Was Improper
Landers contends the abstract of judgment and court
minutes should be corrected to reflect a $300 restitution fine
(§ 1202.4, subd. (b)) and a $300 stayed parole revocation
restitution fine (§ 1202.45). We agree.
According to the reporter’s transcript from Landers’s
sentencing hearing in October 2022, the trial court stated the
following regarding restitution: “Normally, I would impose the
maximum restitution fine. I’m going to impose $5,000. [¶]
There’s a restitution fine of $300, a probation PRCS revocation
restitution fine in the same amount which will be stayed until
parole or PRCS is revoked and defendant is returned to prison.”
The abstract of judgment and minute order from the sentencing
hearing indicate Landers was ordered to pay a restitution fine of
$5,000 and a stayed parole revocation restitution fine of $5,000.
“Entering a judgment of the trial court in the minutes is a
clerical function. Any discrepancy between the minutes and the
oral pronouncement of a sentence is presumed to be the result of
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clerical error. Thus, the oral pronouncement of sentence prevails
in cases where it deviates from that recorded in the minutes.”
(People v. Price (2004) 120 Cal.App.4th 224, 242; accord, People v.
Mesa (1975) 14 Cal.3d 466, 471 [“Nor is the abstract of judgment
controlling. ‘The abstract of judgment is not the judgment of
conviction’ ”], superseded by statute on other grounds as
explained in People v. Turner (1998) 67 Cal.App.4th 1258, 1268.)
Ordinarily, this principle of law would allow us to conclude that
the trial court’s oral pronouncement of the fines is the definitive
sentence, but the oral pronouncement was ambiguous. The trial
court stated it was “going to impose $5,000,” but then
immediately followed that by saying the fine was “$300.”
Where the oral pronouncement itself is ambiguous, we
conclude the ambiguity is best resolved in favor of the court’s
final pronouncement. Since the court’s final pronouncement of
the sentence was $300 for the restitution fine and the “same
amount” stayed for the parole revocation restitution fine, the
abstract of judgment and court minutes should be corrected to
reflect that.
DISPOSITION
The matter is remanded for the trial court to correct the
abstract of judgment and court minutes so that they reflect a
$300 restitution fine and a $300 stayed parole revocation
restitution fine. In all other respects, the judgment is affirmed.
STONE, J.
We concur:
MARTINEZ, P. J. FEUER, J.
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