Filed 8/19/26 P. v. Johnson CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A169654
v.
LAWRENCE BOMANI JOHNSON, (Alameda County
Defendant and Appellant. Super. Ct. No. 22CR000481)
Following the consolidation of two cases involving sex crimes against
minors, Johnson was convicted of sex trafficking, pandering, and pimping a
16-year-old girl. The charges involving the other alleged underaged victim of
sex trafficking were dismissed during trial when that alleged victim did not
appear to testify. Johnson, who had a prior strike and a prior conviction for
human trafficking of a minor for a commercial sex act, was sentenced to 24
years in prison.
Johnson challenges the judgment on several grounds. He argues
reversal is warranted due to the cases’ improper consolidation, the admission
of evidence of his prior sexual offense, untimely discovery by the prosecution,
and the cumulative prejudice of the alleged errors. He also argues the trial
court abused its discretion at sentencing. We affirm.
1
I. BACKGROUND
We provide only a brief summary of the facts underlying Johnson’s
convictions because they are generally not necessary to our decision. We
provide further background on relevant proceedings in the trial court in our
discussion of Johnson’s legal arguments.
On Friday, August 27, 2021, Keke Doe (Keke) was in an area of
Oakland known for prostitution, working as a prostitute for a pimp. She was
16 years old. Johnson drove up to Keke in a car, and a young woman in the
passenger seat complimented Keke’s appearance. After some back and forth,
Keke got in the car with them.
Keke initially told Johnson that she was 18 or 19 years old, but later in
the evening she disclosed that she was 16 years old. They went to Johnson’s
house and discussed prostitution; he laid out ground rules for her to follow,
such as the use of condoms and not talking to other pimps, as well as pricing
and revenue goals. That night they shared a bed but did not have any
contact with each other.
Keke worked for Johnson over the course of the weekend. Johnson
gave her rides and condoms, and she kept Johnson informed about where she
was going. He took her back to his house midday to change clothes and he
took her shopping. Keke made $300 on Saturday and gave it all to Johnson.
On Sunday, August 29, 2021, an undercover police officer saw Keke in
an area known for prostitution. She watched Keke for about 50 minutes and
observed suspicious activity before taking Keke into protective custody.
Police arrested Johnson later that day.
Johnson was charged with three crimes involving Keke: pandering by
encouraging a minor over age 16 (Penal Code, § 266i, subd. (a)(2));1 human
1 All further undesignated statutory references are to the Penal Code.
2
trafficking of a minor for a commercial sex act (§ 236.1, subd. (c)); and
pimping a minor (§ 266h, subd. (b)). The case was consolidated with another
criminal case against Johnson for sex crimes involving another minor, Nia
Doe (Nia).2 During trial, the alleged offenses involving Nia were dismissed.
A jury found Johnson guilty of the crimes involving Keke. The court
sentenced Johnson to 24 years in prison.
II. DISCUSSION
A. The Consolidation of the Cases Was Not Improper Nor Resulted
in an Unfair Trial
Johnson argues that the trial court committed reversible error in
granting the prosecution’s motion to consolidate the cases and in denying his
motion for severance. He further argues that regardless of whether the
joinder and severance rulings were correct, the joinder resulted in gross
unfairness, depriving him of a fair trial and due process of law. We find no
error.
1. Background
The People filed the information charging Johnson in the case involving
Keke (the Keke case) in November 2021. Less than two months later, the
People filed a complaint in another case concerning another alleged victim,
Nia (the Nia case). Johnson’s trial counsel began representing Johnson in
each case in February and March of 2022, respectively. The preliminary
hearing for the Nia case took place in November 2022.
2 Johnson was charged with three crimes involving Nia: human
trafficking of a minor for a commercial sex act (§ 236.1, subd. (c)), pimping a
minor (§ 266h, subd. (b)), and pandering by encouraging a minor over age 16
(Penal Code, § 266i, subd. (a)(2)). It was further alleged that the commission
of the human trafficking offense “involved force, fear, fraud, deceit, coercion,
violence, duress, menace, and threat of unlawful injury to the victim and to
another person.”
3
At the preliminary hearing, a police detective testified regarding Nia’s
identification of Johnson as her pimp. The detective relayed Nia’s description
of working as a prostitute in Oakland for Johnson and of traveling to
Stockton with Johnson to engage in sex work there. According to the
detective, Nia said that Johnson used force to prevent her from leaving when
she no longer wanted to continue working for him. On cross-examination, the
detective admitted that this narrative was “based entirely on what Ms. [Nia]
Doe said.” The detective admitted that she had not corroborated any aspect
of Nia’s claims including any details that Nia provided such as whether
Johnson had checked into a hotel room in Stockton.
Defense counsel argued that the investigation was “abysmal” because
of the lack of any corroboration and therefore the victim’s narrative should
not be credited. The magistrate acknowledged that the prosecution would
need to address “corroboration issues” at trial and would “have to sit down
and saddle up whether or not that witness even shows up . . . .” Nonetheless,
the magistrate found there was sufficient evidence to hold Johnson to
answer. Accordingly, Johnson was charged by information filed later that
month.
Roughly six weeks after the preliminary hearing, in December 2022,
the prosecution moved to consolidate the two cases pursuant to section 954.
Johnson opposed the motion.
At the hearing on the motion to consolidate,3 the prosecutor first stated
that he did not believe anyone in his office was aware of the Nia case when
the Keke case was filed. He continued: “It was a couple of weeks after the
3 The same hearing also addressed Johnson’s motion to dismiss the Nia
case for lack of sufficient evidence at the preliminary hearing, which the trial
court denied.
4
arraignment on the [Nia] case that I indicated to [defense counsel] that we
would ask the court to consolidate the charges. And so it was really just a
matter of weeks after that arraignment on that case that we sought that
consolidation.” He conceded that his office “[p]ossibly” should have brought
the motion earlier, but he countered that “one could argue it would be
premature to do it before [the preliminary hearing].” He also opined that
evidence on the charges would be cross-admissible and stated he was not
opposed to the defense having more time.
Defense counsel maintained there had been an “unreasonable and
unexplained delay” in the prosecution’s motion to consolidate. Counsel
further asserted that before it was filed, the Nia case had been used as
leverage in an unsuccessful attempt to pressure Johnson to plead in the Keke
case.
The trial court granted the motion to consolidate. It first observed that
the defense counsel appeared on the docket for the Keke and Nia cases in
February and March 2022, respectively, stating: “So, in my mind, you had to
have known that that was going to be consolidated.” The court found that
“[j]udicial economy and efficiency demand that these [cases] go together. It’s
the same class of crime.” The court continued: “This is not a surprise, in my
mind, considering you had the case for a lengthy period of time. This isn’t
like you had it two weeks ago. You’ve been in it for a good while now, almost
a year on both.”
In April 2023, Johnson filed a motion to sever the cases. Johnson
contended that the Nia case was “extraordinarily weak” because it rested on
hearsay evidence only admissible in a preliminary hearing, and he
characterized the Keke case as “extremely weak” because it too lacked
corroborating evidence. When the trial court heard argument on the motion,
5
defense counsel posited that “taking two weak cases together would tend to
bolster the case.” In his motion, Johnson also argued that the cases alleged
dissimilar facts because Keke claimed she worked for Johnson while Nia
alleged that she worked for Johnson’s “ ‘bottom.’ ”4 The court denied the
motion, noting that the jury instructions would address Johnson’s concerns.
The first amended information was filed in May 2023, alleging three
counts for crimes against Nia between June 5, 2021, and July 25, 2021, and
three counts for crimes against Keke between August 27, 2021, and August
29, 2021. Before voir dire, the trial court outlined the charges, identified the
parties, and read the first amended information to the prospective jurors.
Thus, the prospective jurors heard the charges pertaining to Nia, including
the allegation that the commission of the human trafficking offense “involved
force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of
unlawful injury to the victim and to another person.”
Opening statements took place the next day. In his opening, the
prosecutor stated that “the cases involve[d] six counts,” but he then said: “I
am not going to be addressing Counts One, Two and Three in this opening
statement. I am going to skip to Counts Four, Five and Six.” He made no
further mention of the counts involving Nia. In his opening statement,
defense counsel expressed surprise that the prosecution did not discuss the
counts involving Nia, rhetorically asking, “Why would that be? Aren’t we
here to try six counts?” Defense counsel then argued that the Nia case was
premised on Nia’s “story” that a woman named Ari “introduced her to Mr.
Johnson” but that no person purported to be Ari would testify and “[w]e don’t
4 The motion defined the term “bottom” as “a person, usually female,
that works for the pimp, and is responsible for supervising the other girls
under his authority.” The motion further contended that there was no
evidence that the alleged bottom existed or worked for Johnson.
6
know who this person is.” Defense counsel summarized Nia’s story about
staying in a hotel in Stockton with Johnson, but counsel stated that the
prosecution would not have evidence corroborating that Johnson was ever at
a hotel in Stockton. Finally, he stated that Nia was motivated to portray
herself as a victim to avoid prosecution. After discussing the Keke case,
defense counsel concluded by turning back to the prosecution’s failure to
discuss the Nia case, stating: “And you will probably find yourself thinking,
why didn’t he talk about Counts One, Two and Three. They put these counts
together. The District Attorney’s office put these counts together in hopes
that you would convict. [¶] Why in the world is he not talking about it?
That’s because it is disproving and he knows it.” The prosecutor lodged an
objection to this comment, which the trial court sustained.
At the next trial day, in response to the trial court’s inquiry on whether
the prosecution intended to call Nia to testify, the prosecutor stated, “I don’t
have any word on that, because she may be a missing person at this point.”
On the morning when the prosecution confirmed it would wrap up its case-in-
chief, the prosecutor confirmed that Nia would not appear, and the trial court
dismissed counts 1, 2, and 3 on the prosecution’s oral motion.
After both parties rested, the trial court instructed the jury. As to the
charges concerning Nia, the court instructed the jury as follows: “Counts 1,
2, and 3 charging the defendant with human trafficking of Nia Doe. Pimping
of Nia Doe and pandering of Nia Doe no longer need to be decided in this
case. [¶] Do not speculate about or consider in any way why you no longer
need to decide these counts.” The parties’ closing arguments followed, during
which defense counsel remarked: “Counts 1, 2, and 3 are no longer before
you. They are not to be considered. They are not to be thought of in any way,
shape, or form. We’re here to talk about the three counts that remain.”
7
2. Legal Standards
Section 954 authorizes the joinder of “two or more different offenses
connected together in their commission . . . or two or more different offenses
of the same class of crimes or offenses, under separate counts, and if two or
more accusatory pleadings are filed in such cases in the same court, the court
may order them to be consolidated.” “[T]he requirement of section 954 that
offenses be ‘connected together in their commission’ may be satisfied even
though ‘the offenses charged “do not relate to the same transaction and were
committed at different times and places . . . against different victims.” ’ ”
(Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218 (Alcala).)
While the law favors joinder because it promotes judicial economy and
efficiency, a trial court nonetheless has discretion to order that properly
joined charges be tried separately. (People v. Merriman (2014) 60 Cal.4th 1,
37 (Merriman).) “In exercising its discretion in this regard, the court weighs
‘the potential prejudice of joinder against the state’s strong interest in the
efficiency of a joint trial. [Citation.]’ [Citation.] To succeed on a claim that
the trial court abused its discretion in denying severance or ordering
consolidation, the defendant must make a ‘ “clear showing of prejudice” ’ and
establish that the ruling fell ‘ “ ‘ “ ‘outside the bounds of reason.’ ” ’ ” ’
[Citations.] An appellate court evaluates such claims in light of the showings
made and the facts known by the trial court at the time of the court’s ruling.”
(Ibid.) The factors the appellate court considers are: “ ‘(1) the cross-
admissibility of the evidence in separate trials; (2) whether some of the
charges are likely to unusually inflame the jury against the defendant;
(3) whether a weak case has been joined with a strong case or another weak
case so that the total evidence may alter the outcome of some or all of the
charges; and (4) whether one of the charges is a capital offense, or the joinder
8
of the charges converts the matter into a capital case.’ [Citations.] ‘The
state’s interest in joinder gives the court broader discretion in ruling on a
motion for severance than it has in ruling on admissibility of evidence.’ ”
(Alcala, supra, 43 Cal.4th at pp. 1220–1221; see Merriman, at p. 38 [“If 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’ ”].)
However, even where the trial court properly consolidated charges and
denied severance, the appellate court must further inquire whether joinder
resulted in “gross unfairness” amounting to a denial of defendant’s
constitutional right to fair trial or due process of law. (Merriman, supra, 60
Cal.4th at p. 46; People v. Simon (2016) 1 Cal.5th 98, 123.) In evaluating
whether joinder resulted in unconstitutional gross unfairness, we must
determine “if it is ‘reasonably probable’ ” that the joinder influenced the jury’s
verdict. (Merriman, at p. 49.)
3. Analysis
As a threshold matter, the charges in question met the statutory
requirements for joinder because the offenses concerning Nia belonged to the
same class of crimes as the offenses concerning Keke. (Cf. Merriman, supra,
60 Cal.4th at p. 36 [sexual assault counts and murder count could be joined
in a single trial].) Indeed, counts 1 and 5 for human trafficking a minor,
counts 2 and 6 for pimping a minor, and counts 3 and 4 for pandering with a
minor were virtually identical. Moreover, evidence underlying the sexual
9
offenses against each victim almost certainly would have been cross-
admissible in separate trials.5
Johnson does not dispute that the offenses fell into the same class of
crimes nor does he address the cross-admissibility of the evidence. Instead,
Johnson contends the joinder and the denial of his severance motion were
improper because “[t]he Nia case was both more inflammatory and weaker
than the Keke case.” We disagree.
Although the sex trafficking charge involving Nia alleged Johnson used
force, fear, fraud, deceit, coercion, violence, or duress, that allegation alone
was not “unusually likely to inflame the jury against [Johnson].” (Alcala,
supra, 43 Cal.4th at p. 1220.) At the time the court made its ruling, Nia’s
purported testimony—as previewed at the preliminary hearing—was not so
aggravating as to prejudice the jury in evaluating the offenses against Keke.
The court was told that Nia would testify that Johnson had thrown her on a
hotel bed and against a door to prevent her from leaving his employ.
Further, the preliminary hearing disclosed that the injury was minor enough
that Nia did not bleed and, when police arrived, “she played it off” and “the
5 In cases involving sex offenses, Evidence Code section 1108 allows the
introduction of evidence of other sex crimes subject to Evidence Code section
352. (See People v. Falsetta (1999) 21 Cal.4th 903, 911 (Falsetta).) The
provision defines “ ‘[s]exual offense’ ” as including “[a]ny conduct proscribed
by subdivision (b) or (c) of Section 236.1” (Evid. Code § 1108, subd. (d)(1)(A)),
therefore expressly covering counts 1 and 5 of the first amended information.
By contrast, pimping a minor (§ 266h) and pandering a minor (§ 266i) are not
enumerated qualifying sex offenses under Evidence Code section 1108.
However, an element of section 236.1 is the defendant’s “intent to effect to
maintain a violation of Section . . . 266h, 266i . . . .” Moreover, as discussed
post, the trial court weighed the requisite considerations under Evidence
Code section 352 and ultimately permitted the prosecution to present
evidence of Johnson’s prior sex trafficking offense against a third victim,
Adrionna Doe, pursuant to Evidence Code section 1108.
10
officer saw that [Johnson and Nia] were both okay with each other” and left.
Nia “worked for him a couple more days and then she was able to leave.”
While the alleged conduct is unsavory, the court did not abuse its discretion
in determining that a jury would not be unduly influenced by the allegation
when instructed to separately evaluate the evidence that Johnson had
trafficked, pimped, and pandered Keke.
Nor are we persuaded that the trial court abused its discretion by
improperly joining a weaker case with a stronger case. At the time
consolidation was ordered, it was apparent that each case was dependent on
the complaining witness’s testimony. At the hearing on the motion to sever,
defense counsel characterized the Nia case as “probably” the weaker case, but
Johnson’s “position [was] that both cases are weak.” Plus, the 2021
information in the Keke case and the 2022 complaint in the Nia case each
alleged the same prior conviction for human trafficking of a minor from 2008,
and therefore the court could have reasonably concluded that the propensity
evidence would be permissible in each case. Accordingly, in view of the facts
known by the court at the time of its rulings, we are not persuaded that the
court abused its discretion in finding the potential prejudice from the
aggregate evidence of the offenses against Nia and Keke was outweighed by
the state’s strong interest in the efficiency of a joint trial.
Johnson also contends that the motion to consolidate the cases was
untimely. However, a superior court only exercises jurisdiction over a felony
case once the information is filed. (People v. Henson (2022) 13 Cal.5th 574,
590, 593–594.) Today, superior courts and inferior courts are unified, but
their historical jurisdictional boundaries remain. (Id. at p. 593.) Even
though judges of superior courts sit as magistrates to hold preliminary
hearings in felony cases, the magistrate does “not preside as the judge of any
11
court” and does “not exercise trial jurisdiction.” (Ibid.) “[T]he felony
complaint is filed ‘with the magistrate’ [citation], not with the court, and the
first pleading in a felony case that is filed with the court . . . is the
information. It is only with the filing of that information that the superior
court begins to exercise its jurisdiction.” (Id. at p. 594.) Therefore,
consolidation would have been improper prior to Johnson being held to
answer at a preliminary hearing for the charges in the Nia case because a
superior court may only consolidate pleadings filed “in the same court.”
(§ 954; see Henson, at p. 596 [the phrase “ ‘in the same court’ ” was “added to
section 954 to prevent the superior court from consolidating a misdemeanor
complaint with a felony information, which would have eroded the
jurisdictional boundary between the superior courts and the inferior
courts.”].)
Furthermore, as Johnson concedes, there is no “statutory time limit on
when consolidation must be requested.” And we agree with the trial court
that defense counsel, who had represented Johnson in both cases for about
nine months already when the motion to consolidate was brought, should
have anticipated that the cases against Johnson would be consolidated.
Finally, assessing the case as it was actually tried, there is no reason to
believe that the jury was improperly influenced by the joinder in its verdict of
guilt. (Merriman, supra, 60 Cal.4th at p. 49.) The only information about the
Nia case that the jury heard was the charges and defense counsel’s argument
against the charges. We recognize that juries are not always able to
compartmentalize admissible evidence and set aside prejudicial evidence
even when so instructed by the trial court. But that was not a concern here
because no evidence pertaining to Nia or counts 1, 2, or 3 was presented to
12
the jury.6 Therefore, it is not reasonably probable that the jury was
influenced in finding Johnson guilty on the counts involving Keke by its mere
knowledge of the dismissed charges. Thus, Johnson fails to bear the “high
burden of establishing that the trial was grossly unfair and that he was
denied due process of law.” (People v. Soper (2009) 45 Cal.4th 759, 783.)7
B. The Admission of Propensity Evidence Was Not Improper
Johnson claims the trial court abused its discretion and violated his
constitutional right to due process by admitting evidence of his prior offense
of sex trafficking against Adrionna Doe. Specifically, Johnson contends that
such evidence was more prejudicial than probative under Evidence Code
section 352 due to “no meaningful similarity” between the charged offenses
and the prior conduct and “the extensive and inflammatory prior conduct
evidence,” including threats Johnson made. We perceive no error because
6 We note that Johnson has not claimed in this appeal that the
prosecution knew when opening statements began that it would be unable to
secure Nia’s presence as a witness and planned to dismiss those counts. Nor
did he argue as a basis for his motion to sever that there was uncertainty
about whether Nia would appear. The prosecution had acknowledged earlier
in the same hearing that “she has a history of not always complying with
subpoenas and showing up places” and that it would not move forward with
prosecution in her absence. The prosecutor added, however, that Nia had
given the impression earlier in the week that she wanted to continue with the
prosecution, and he represented that he had a good faith basis to believe he
would be able to prove those counts.
7 Despite our Supreme Court’s clear statement that “a judgment will be
reversed on this ground only if it is “reasonably probable that the jury was
influenced [by the joinder] in its verdict of guilt” (Merriman, supra, 60
Cal.4th at p. 49), Johnson contends reversal on this ground is required
because “[d]efense counsel had struggled to get up to speed on the Keke case
only to be sandbagged time and again by late discovery in the Nia case.”
However, Johnson also raises the prosecution’s purported discovery violations
as a separate claim on appeal, which we address post.
13
dissimilarity alone cannot demonstrate undue prejudice, because the prior
conduct was probative of Johnson’s propensity to commit sex trafficking of
minors, and because the trial court conducted a thorough analysis under
Evidence Code section 352 and adequately sanitized the admitted evidence.8
Propensity evidence is typically not admissible to prove a defendant’s
conduct on a specific occasion (Evid. Code, § 1101, subd. (a)), except “[i]n a
criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses
is not made inadmissible by Evidence Code section 1101, if the evidence is
not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code,
§ 1108.) Thus, “[t]he evidence [of other sex crimes] is presumed admissible
and is to be excluded only if its prejudicial effect substantially outweighs its
probative value in showing the defendant’s disposition to commit the charged
sex offense or other relevant matters.” (People v. Cordova (2015) 62 Cal.4th
104, 132 (Cordova).) In making that determination, courts must consider the
prior act’s “nature, relevance, and possible remoteness, the degree of
certainty of its commission and the likelihood of confusing, misleading, or
distracting the jurors from their main inquiry, its similarity to the charged
offense, its likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the availability of
less prejudicial alternatives to its outright admission, such as admitting some
but not all of the defendant’s other sex offenses, or excluding irrelevant
8 Johnson does not contest that Evidence Code section 1108 applies.
Johnson’s prior conviction for human trafficking of a minor for a commercial
sex act (§ 236.1, subd. (c)) is an enumerated sex offense within Evidence
Code, section 1108, subdivision (d)(1), which lists the offenses potentially
admissible under the provision.
14
though inflammatory details surrounding the offense.” (Falsetta, supra, 21
Cal.4th at p. 917.)
We review a trial court’s ruling admitting evidence under Evidence
Code section 352 for abuse of discretion. (People v. Daveggio and Michaud
(2018) 4 Cal.5th 790, 824.) Trial courts possess broad discretion under
Evidence Code section 352 and reversal is only appropriate on a showing that
the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. (People v.
Dworak (2021) 11 Cal.5th 881, 899–900.)
Here, the trial court walked through each factor that courts must
consider when applying Evidence Code section 352. It correctly anticipated
that Adrionna Doe’s testimony “should be narrow enough that cross-
examination would not result in a, quote, unquote, ‘full trial’ on [the] prior
incident.” This expectation was realized at trial when Adrionna Doe’s
testimony took less than 50 minutes. The court aptly noted that there was
little concern about misleading the jury because of the limited nature of
Adrionna Doe’s testimony and the sufficient passage in time between the
offenses. The court further explained that the remoteness of the crime was
mitigated by “Johnson’s interaction with police and criminal contacts through
that time.” (See People v. Carpenter (1999) 21 Cal.4th 1016, 1056
[significance of the remoteness factor is diminished when the defendant
suffered convictions or was in custody in the interim period].)
Johnson contends the evidence should have been excluded because “the
prior conduct evidence . . . bore little similarity to the present charges.” He
points out that Keke was already doing sex work when she began working for
Johnson, which stands in contrast to his past crime of picking up Adrionna
Doe, who was on her way to school and who testified that she did sex work as
15
instructed out of fear. But dissimilarity is a legally insufficient basis to
exclude the uncharged sex crimes under Evidence Code section 352.
(Cordova, supra, 62 Cal.4th at p. 133.) While similarity between the
uncharged and charged crimes is “a relevant factor” for the court to consider
in its inquiry, “ ‘ “[t]he charged and uncharged crimes need not be sufficiently
similar that evidence of the latter would be admissible under Evidence Code
section 1101, otherwise Evidence Code section 1108 would serve no purpose.
It is enough the charged and uncharged offenses are sex offenses as defined
in [Evidence Code] section 1108.” ’ ” (Cordova, at p. 133.)
In any event, we disagree that the instant charges were meaningfully
dissimilar from the prior conduct. Johnson’s focus on the differences in how
he committed the crimes misses the forest for the trees. Both the prior and
present conduct involved Johnson’s trafficking of minor females for
commercial sex in Oakland. “ ‘This circumstance [of commonality] brings the
evidence precisely within the primary purpose behind Evidence Code section
1108.’ ” (Cordova, supra, 62 Cal.4th at p. 134.) We further agree with the
trial court’s assessment that a prior sex trafficking conviction has “probative
value in a pimping, pandering prostitution-type case.”
In view of the trial court’s sanitation of the admitted evidence,9 we also
reject Johnson’s contention that the inflammatory nature of the evidence
rendered it unduly prejudicial. Again, Johnson focuses on Adrionna Doe’s
testimony that she was scared of Johnson, asserting that the jury was
inflamed by hearing about Johnson “threatening a young girl who did not
9 The trial court barred the prosecution from introducing evidence of
Adrionna Doe’s age at the time of the prior conduct (because she was younger
than Keke was at the time of the present offense), and it accepted defense
counsel’s argument to use the dates of incident so that the jury would not
speculate if the conduct was recent.
16
want to be in the sex work business.” But Adrionna Doe did not testify that
Johnson expressly threatened her. Indeed, after the Nia case was dismissed,
the court revisited its earlier ruling and excluded portions of Adrionna’s
testimony that referred to the incident as a kidnapping. The trial court also
overturned its previous ruling allowing the prosecution to elicit testimony
about Adrionna Doe having sexual contact with Johnson.
The court did allow Adrionna Doe to repeat her allegation that
“Johnson said he put females with attitudes in his trunk,” and she testified
that the statement made her feel “fear.” At trial, Adrionna Doe also testified
that she complied with several of Johnson’s requests “in” and “out of” “fear,”
including when he “told” her to “give him” her phone number and when he
“asked” her to go downtown. Similarly, Adrionna Doe said she was “scared”
when Johnson described how she was to conduct sex work and that she asked
a friend to call pretending to be her mom so that she could go home
“[b]ecause [she] was scared.” But such testimony was not unduly
inflammatory, especially when balanced against its probative value. (See
People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 824 [“The code speaks
in terms of undue prejudice”]; People v. Christensen (2014) 229 Cal.App.4th
781, 799 [“Although the [prior acts] evidence is more severe, it is not so much
so that it should be excluded without a consideration of other factors or a
balancing of factors”].) We further observe that the jury was informed that
the sexual offense against Adrionna Doe resulted in a conviction, minimizing
the risk that the jury would punish Johnson in the present case to hold him
liable for his prior conduct. (People v. Loy (2011) 52 Cal.4th 46, 61.)
Johnson’s reliance on People v. Harris (1998) 60 Cal.App.4th 727
(Harris) is misplaced. In Harris, the defendant was a mental health nurse
“accused of preying on women who were vulnerable due to their mental
17
health condition.” (Id. at p. 730.) The trial court allowed the prosecution to
offer evidence of a past violent sexual assault on a woman who lived in his
residential apartment complex, but “[t]he facts of the prior conduct were
redacted to a point that the jury must have come away with a misleading
impression of what happened . . . .” (Id. at p. 733.) The jury was given an
“altered version of the crime,” in which it heard graphic details about the
victim, who had “blood on her vagina and mouth area along with swelling on
the right side of her face,” and the defendant, who “had blood ‘on the inside of
his thighs and on his penis.’ ” (Id. at p. 734.) Moreover, there was a
reference to “rape,” which the trial court struck but also ruled did not justify
a mistrial. (Ibid.) The prosecutor’s closing argument relied on the evidence
of this past sexual assault to argue that the defendant “ ‘picks on people who
can’t or who won’t [fight back]’ ” and “ ‘use[s] whatever means of force
necessary’ ” to “ ‘take sex from women.’ ” (Id. at pp. 735–736.)
The Court of Appeal reversed the judgment because the evidence of the
sexual assault was unduly prejudicial. (Harris, supra, 60 Cal.App.4th at
pp. 741–742.) It found the evidence was “inflammatory in the extreme,”
emphasizing that “the ‘taking advantage’ of two emotionally and physically
vulnerable women [was] of a significantly different nature and quality than
the violent and perverse attack on a stranger,’ ” particularly because the jury
heard “an incomplete and distorted description of an event that did not
actually occur.” (Id. at p. 738.) Furthermore, the violent sexual assault
occurred 23 years prior to the charged crimes, which “weigh[ed] strongly in
favor of exclusion.” (Id. at p. 739.) The appellate court also was not
persuaded that the prior acts evidence was probative because “evidence that
defendant committed a violent rape of a stranger, as the jury was led to
believe, did not bolster [the victim’s] credibility nor detract from the evidence
18
impeaching their stories.” (Id. at p. 740.) The facts in Harris bear no
resemblance to the instant case.
Because the trial court did not abuse its discretion in weighing the
probative value of the prior conduct evidence against its potential prejudicial
effect under Evidence Code section 352, there was no due process violation.
(Falsetta, supra, 21 Cal.4th at p. 917; Merriman, supra, 60 Cal.4th at pp. 46-
47.)
C. Johnson Fails to Show that Untimely Discovery Violated His
Constitutional Rights
Johnson argues that he “encountered multiple discovery abuses”
throughout the proceedings and trial that “were so numerous and pervasive”
as to violate his constitutional rights. The prosecution concedes that the
disclosure of evidence in connection with the prior sexual offenses against
Adrionna Doe was untimely, but it contends no other discovery violations
occurred and the trial court properly addressed the singular discovery
violation by instructing the jury that it should evaluate the effect, if any, of
the late disclosure. Contrary to the prosecution’s assertion, the record
reveals that it failed to meet several discovery obligations. Nevertheless,
Johnson fails to show the trial court erred in addressing the late discovery or
that the untimely discovery violated his rights to a fair trial and due process.
1. Background
Johnson’s defense counsel was diligent in seeking discovery throughout
2022. Although defense counsel had to follow up for months to acquire
various documents, including phone searches, Johnson concedes that
“[f]inally on November 4, 2022, the prosecutor provided [the] requested
records.”
19
On March 30, 2023, the parties stipulated the trial had started that
day.10 On April 12, 2023, each side filed motions in limine.11 The
prosecution’s motions in limine sought, inter alia, to admit evidence of
Johnson’s prior conviction for sex trafficking Adrionna Doe as a minor.
Acknowledging that it must disclose evidence 30 days before trial, the
prosecution argued that “[t]he defense was first notified about the conviction”
by the express allegations of Johnson’s prior conviction in the complaints
filed in both the Keke and Nia cases. The prosecution contended that “the
specific factual allegations underlying the conviction” were “a matter of
public record,” but it also admitted that certain police reports involving
Adrionna Doe “were discovered to the defense on April 4, 2023 and April 11,
2023.” In opposition to the prosecution’s motion in limine, Johnson noted
that “[t]rial was stipulated to have started on March 30, 2023” and therefore
the prosecution failed to adhere to the discovery requirements by “wait[ing]
until after the trial had commenced to disclose the necessary materials.”
On April 18, 2023, Johnson filed a motion to dismiss the case “for
egregious discovery violations,” including the late discovery of police reports
relating to the incident underlying Johnson’s prior sexual offense against
Adrionna Doe. Johnson also argued that the prosecution had failed to timely
10 At the same hearing, the trial court ordered certain documents to be
disclosed pursuant to Brady v. Maryland (1963) 373 U.S. 83 (Brady). Brady
obligates the prosecution to disclose to the defense material evidence
favorable to the defendant. (Id. at p. 87.) Johnson also sought information
concerning officer misconduct, which the court denied on the basis that
Johnson failed to allege what type of misconduct he was looking for.
11 Johnson requested, inter alia, that the court conduct a hearing
concerning discovery and exclude “any item found to be outside the rules of
discovery compliance,” and he requested a “Brady colloquy” requiring the
prosecution to make representations to the court that it has diligently
complied with its Brady obligations.
20
and fully disclose investigative and police reports concerning Nia. The
prosecution opposed the motion to dismiss, arguing the motion “contain[ed]
numerous inaccurate or misleading accusations about alleged discovery
violations” but “conced[ing] that some statutory deadlines [had] not been
met” including the evidence concerning Johnson’s prior sexual offense against
Adrionna Doe.
On April 27, 2023, the trial court and the parties discussed the motions
in limine, reserving the issue of Johnson’s motion to dismiss for another
day.12 As mentioned ante, the court granted the prosecution’s motion in
limine to admit evidence of Johnson’s prior sexual offenses against Adrionna
Doe.
On May 1, 2023, the trial court held a hearing on the motion to dismiss
in which it walked through the discovery timeline and alleged discovery
violations, including new ones raised in Johnson’s reply to the prosecution’s
opposition and supplemental opposition to the motion to dismiss. The court
noted several areas where the prosecution had discovered information late,
including the disclosure of an expert’s CV, for which the court stated it would
consider a late discovery instruction. The court also found the prosecution’s
disclosure of Evidence Code section 1108 evidence involving Adrionna Doe
was late. But it concluded the late discovery did not warrant exclusion
because “there was an awareness of this prior event from the information
that was filed, and it has already been a month since we started talking
12 The trial court granted Johnson’s motion in limine concerning
discovery “with the understanding that [the prosecution] has complied, or is
in the process of complying with this request” and stated that “if there is
something very specific that you want to address, [defense counsel], you can
raise that at another time.” (See ante, fn. 11.) The court denied the motion
concerning Brady information after the prosecution represented that it had
disclosed all known Brady information. (See ibid.)
21
about this on March 30th.” The court stated that it also would consider a late
discovery instruction to address the situation. Thus, while the trial court
“agree[d]” with Johnson that the prosecution “had obligations that weren’t
met” and “the District Attorney’s office did not disclose the materials that
were requested in the informal request for discovery,” the court determined
that the prosecution’s “sloppy” conduct was not intentional nor involved
“Brady information.” Accordingly, the court concluded it was not required to
dismiss any charges pursuant to the United States Constitution and
therefore it could not dismiss any charge pursuant to section 1054.5,
subdivision (c). It denied the motion to dismiss but stated that Johnson could
file “a request for any remedies” which it would address on a “piece-by-piece”
basis.
The trial court further noted that it and the parties “[had] agreed to
build in time to address [the] late disclosed items,” and the court declared it
would “entertain a motion to continue.” Although Johnson declined to waive
time, the court delayed jury selection by an additional week pursuant to
Johnson’s request.
At the next hearing a week later, the trial court addressed some
outstanding motions in limine, starting with a defense motion seeking to bar
the prosecution from presenting “any evidence which should have been, but
was not, disclosed to the defense in a timely manner.” The court denied the
motion “unless and until, without prejudice, [defense counsel] can identify
something that you believe the People had a duty to disclose, but didn’t.”
When asked about the court’s previous discovery findings, the court clarified
its previous ruling “was in the context of a motion to dismiss” and that it had
“specifically said” counsel could “bring to [the court] any issues where
[counsel] feel[s] there has been late discovery . . . .” Counsel contended that
22
“everything . . . brought up in the motion to dismiss was late discovery” and
should be excluded. The court disagreed, explaining that it needed
specificity. When counsel restated that he wanted to exclude all the late
discovered items discussed in the motion to dismiss, the court transformed
the motion to dismiss to a motion to exclude. The court continued: “Because
not everything was [an] obligation of the People to disclose, not everything
was necessarily late. So this is where some specificity on your part would be
more productive.” Counsel responded that he would “bring it back to the
Court’s attention,” and the court accordingly denied the motion without
prejudice, reiterating that counsel could “bring it back to the Court when
[defense counsel has] something specific” to ask for.
The issue of late discovered evidence was revisited during trial when
the prosecution filed a supplemental motion in limine to admit GPS data
from Johnson’s Google account on the ground that defense counsel had
opened the door during opening argument by implying such evidence would
be exculpatory. Even though the prosecution discovered the evidence after
the start of trial, the court granted the motion because the information was
always in Johnson’s possession and because the prosecution produced it after
Johnson had raised the specter that it was Brady evidence. The court
expounded: “I have also felt the same frustration that the investigation
seems to be ongoing even after witness testimony has begun, but in this
particular case, I do not believe [the prosecution] had a choice.”13
13 This was not the only discovery dispute to come up in the middle of
trial. At the conclusion of Keke’s testimony, the trial court stated she was
subject to recall because defense counsel had not had sufficient time to review
an interview of Keke that had been produced late. The prosecution
contended that Johnson could have reviewed the interview “in 30 minutes,”
to which the court replied that “[Johnson] deserves a chance to review it
thoroughly without being rushed due to the People’s late discovery.” The
23
After almost all the evidence had been presented, the trial court held
an afternoon hearing to discuss the jury instructions, which focused on
CALCRIM No. 306, the jury instruction regarding late discovery. Johnson
asked the court to instruct the jury that “[the] People failed to disclose in a
timely fashion the prior statements of Adrionna Doe and the identities and
location information about the witnesses to those events.” The court pressed
defense counsel to articulate how the late disclosure impacted his ability to
defend or investigate the case, and defense counsel explained that reviewing
the late disclosures took time away from other matters. The court agreed to
give the instruction, finding the late disclosure “prejudicial in [the Evidence
Code, section] 1108 context in particular because the statute is clear this
needs to be disclosed 30 days before.” The court declined to have the
instruction reference “the identities and location information about the
witnesses” because it found the prosecution did not owe a duty to provide
updated contact information.14
prosecutor argued that he was not always able to review all discovery records
and asserted that “the defense claims on discovery has been nothing short of
inaccurate.” The court acknowledged that there had “been times” when
defense counsel was “mistaken about whether or not he received something”
yet there had “definitely been times where . . . the People did in fact not
disclose things they should.” The court concluded that it was “relying on
counsel to tell [it] what the situation is.”
14 The trial court also denied Johnson’s request to give the CALCRIM
No. 306 instruction with regard to the GPS location data, restating its earlier
ruling that the prosecution did not have a duty to disclose the publicly
available information to Johnson until the prosecution intended to use it.
The court concluded: “I have shared [defense counsel’s] frustration on many
occasions that it seemed daily the People were bringing in some new report;
some new document; some new recording and it was a moving target for
[defense counsel]. I recognize that, but I don’t believe in this particular
situation it rises to the legal level that there’s been a violation that requires
the instruction, so that’s my ruling.”
24
The trial court later instructed the jury with CALCRIM No. 306 as
follows: “Both the People and the defense must disclose their evidence to the
other side before trial within the time limits set by law. Failure to follow this
rule may deny the other side the chance to produce all relevant evidence to
counter opposing evidence or to receive a fair trial. [¶] An attorney for the
People failed to disclose the BART police report from 2007 related to
Adrionna Doe within the legal time period. In evaluating the weight and
significance of that evidence, you may consider the effect, if any, of that late
disclosure.”
Following his conviction, Johnson filed a “motion for judgment of
acquittal or new trial” based, in part, on the discovery violations. At the
hearing on the motion, the trial court found Johnson’s argument that he was
denied a fair trial most compelling “with regard to discovery and timing.”
Nonetheless, it found that “before any evidence was introduced, there were
ample continuance[s] and postponements to allow [defense counsel] to review
the voluminous materials being brought to [defense counsel’s] attention and
to prepare for trial . . . .” It therefore denied the motion.
2. Discussion
Johnson asserts in the headings of his appellate briefing that “the
prosecution’s failure to provide timely and full discovery in compliance with
state statutes and federal constitutional requirements deprived [Johnson] of
his constitutional rights to a fair trial, confrontation, due process, and
effective assistance of counsel.” However, Johnson fails to articulate any
cogent legal argument concerning his right to confront witnesses. Nor does
he present in his brief how his counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms as required
to show ineffective assistance of counsel. (People v. Gray (2005) 37 Cal.4th
25
168, 206–207.) His failure to do so violates the California Rules of Court, rule
8.204(a)(1)(B) and we treat his general assertions, unsupported by specific
argument, as forfeited.15 (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Similarly, although Johnson’s headings imply that the prosecution failed to
disclose certain evidence, Johnson only discusses late discovery and therefore
he forfeits any argument that the prosecution failed to provide “full
discovery.” Although we address his due process claim on the merits, the
claim is meritless.
Section 1054.1 enumerates a broad list of materials and information
that the prosecution must disclose to a criminal defendant. Disclosures must
be “made at least 30 days prior to the trial,” or if the information becomes
known within the 30 days of trial, “immediately.” (§ 1054.7.) If a prosecutor
fails to meet its obligations, subdivision (b) of section 1054.5 suggests several
sanctions a court may employ, “including, but not limited to, immediate
disclosure, contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the matter, or
any other lawful order.” (§ 1054.5, subd. (b).) Moreover, “the court may
advise the jury of any failure or refusal to disclose and of any untimely
disclosure.” (Ibid.) However, the statutory discovery scheme expressly
prohibits the court from dismissing a charge “pursuant to subdivision (b)
unless required to do so by the Constitution of the United States.” (§ 1054.5,
subd. (c).) “ ‘We generally review a trial court’s ruling on matters regarding
discovery under an abuse of discretion standard.’ ” (People v. Thompson
(2016) 1 Cal.5th 1043, 1105.)
Independent of the statutory discovery scheme, prosecutors have a
constitutional mandate to disclose exculpatory material evidence—i.e., Brady
15 The California Rules of Court are hereinafter referred to as Rules.
26
evidence—to defendants in criminal cases. (Izazaga v. Superior Court (1991)
54 Cal.3d 356, 378; see also Gray v. Netherland (1996) 518 U.S. 152, 168
[Brady evidence is the only substantive discovery mandated by the United
States Constitution as “there is no general constitutional right to discovery in
a criminal case”].) To establish a Brady violation the defendant must prove
that the State suppressed evidence, that the evidence was favorable to
defendant, and that there is a “ ‘ “ ‘reasonable probability of a different
result’ ” ’ ” if the evidence had not been suppressed. (People v. Letner and
Tobin (2010) 50 Cal.4th 99, 176.) We independently review the question
whether a Brady violation has occurred, but give great weight to any trial
court findings of fact that are supported by substantial evidence.” (Ibid.)
Johnson’s argument that the prosecution’s “multiple” and “pervasive”
untimely disclosures violated his due process rights is conclusory. There is
no dispute that the disclosure of prior conduct evidence was untimely and
there is overwhelming evidence that the prosecution discovered and disclosed
other evidence after trial had begun. However, while Johnson notes that his
motion to dismiss chronicled “eight failures” by the prosecution to timely
produce evidence, he only mentions “a 1,653-page report concerning Nia Doe’s
phone” disclosed on April 13, 2023. Johnson also vaguely alludes to “700
pages of [untimely] discovery,” citing his reply to the prosecution’s opposition
and supplemental opposition to the motion to dismiss. He again fails to
provide specific argument establishing that each alleged late production was
a discovery violation.16 Indeed, he does not address, let alone dispute, the
16 The record is unclear whether the report on Nia’s phone was in fact
late. The defense received the raw data in discovery in May of 2022. Defense
counsel asserted that the report was simultaneous with the extraction of the
raw data, but the prosecution asserted the report was generated in April
2023 using certain software after learning “the data was difficult to open.”
27
trial court’s finding that not everything Johnson cited in his motion to
dismiss was late discovery.
But even assuming his allegations concerning the prosecution’s
statutory discovery violations are true, Johnson’s constitutional claim fails.
Although he references Brady, he does not assert that any of the late
disclosed evidence was exculpatory nor does he expressly state there was a
Brady violation. Instead, the gravamen of Johnson’s due process claim is
that he was denied effective assistance of counsel because his defense counsel
could not adequately prepare for trial due to the late disclosed items. We are
not persuaded.
The trial court afforded defense counsel extra time to digest the late
disclosed evidence, mitigating much of the prejudice, and Johnson declined to
waive time when the court offered a continuance. Johnson relies heavily on
the fact that trial was stipulated to have commenced on March 30, 2023, but
he discounts the postponements and slow pace the court took over the next 6
weeks before a jury was seated. More importantly, Johnson fails to articulate
what task was overlooked or what defense his counsel would have been better
prepared to present but for the time his counsel spent reviewing late
disclosed evidence. Johnson asserts that “it is impossible to judge how
defense counsel’s performance might have been more effective if he had not
had to contend with thousands of pages of discovery were dumped on him in
the middle of trial, much of which related to the Nia Doe case, which,
unbeknownst to him, was about to be dismissed.” We recognize time is a
limited resource, but Johnson has not shown there was a reasonable
probability that the discovery violations affected the trial’s outcome based on
epistemic uncertainty.
28
Johnson relies on cases that are inapposite. In Giglio v. U.S. (1972)
405 U.S. 150, 154–155, the Supreme Court held that the government’s
nondisclosure of a promise to not prosecute a cooperating witness violated the
defendant’s due process rights because evidence of the agreement would be
relevant to the jury’s assessment of the witness’s credibility. In People v.
Murphy (1963) 59 Cal.2d 818, 824–826, the trial court erred by denying
defendant’s motion to continue trial by reason of surprise after the
prosecution amended the information in a material respect on the morning of
trial. In People v. Johnson (2006) 142 Cal.App.4th 776, 786, the suppression
of documents “denied [defendant] the opportunity to impeach” a witness as
well as the opportunity to cross examine a gang expert and to contradict the
Attorney General’s inference that the witness was a “ ‘neutral bystander.’ ”
Similarly, People v. Kasim (1997) 56 Cal.App.4th 1360, 1381, involved the
nondisclosure of “significant exculpatory evidence bearing on the credibility
of the key prosecution witnesses.” Here, there was no surprise at trial as to
the operative information and no exculpatory evidence was suppressed.
Nor does People v. Gonzalez (2006) 38 Cal.4th 932 support Johnson’s
position. There, the prosecution refused to provide the defendant with the
identity of rebuttal witnesses to the defendant’s disclosed mitigation
witnesses, and as a consequence the defendant did not call the mitigation
witnesses at trial. (Id. at pp. 953–955.) The California Supreme Court
explained that “[d]enial of discovery of potential rebuttal evidence thwarts
defense counsel’s ability to present an intelligent defense and to make an
informed tactical decision whether to present mitigating evidence.” (Id. at
p. 960; see also Wardius v. Oregon (1973) 412 U.S. 470, 474 [holding due
process bars state law requiring notice of defense alibi unless defendant
enjoys reciprocal discovery rights].) Our high court found the defense had
29
been prejudiced because there was a reasonable possibility that defense
counsel would have presented the mitigating evidence had he received the
requested discovery and a reasonable possibility the verdict would have been
different had he done so. (Gonzalez, at pp. 961–962.) In contrast, Johnson
does not argue that a denial of discovery placed his counsel into the position
of having to make an uninformed tactical decision.
Because Johnson fails to show that the untimely discovery violated his
constitutional right to due process, the trial court could not have dismissed
any charge. (§ 1054.5, subd. (c).) Johnson also fails to show the court abused
its discretion regarding its selection of a discovery sanction. After quoting
the possible discovery sanctions listed in section 1054.5, subdivision (b),
Johnson merely states: “the trial court had both the authority and discretion
to limit or ameliorate the prejudice from the prosecutor’s failures to provide
full and timely discovery.” He makes no argument why the late-discovery
instruction was inadequate to cure the prejudice or how the trial court
abused its discretion in not selecting another sanction. Because he fails to
bear his burden to establish prejudice from any untimely discovery, the
judgment must be affirmed. (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.)
D. There Was No Cumulative Prejudice From the Alleged Errors
Johnson contends that the combined effect of multiple trial court errors
rendered his trial fundamentally unfair. We disagree.
“Lengthy criminal trials are rarely perfect, and [a reviewing] court will
not reverse a judgment absent a clear showing of a miscarriage of justice.
[Citations.] Nevertheless, a series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level of
reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.)
Johnson does not articulate what harmless error standard we should apply,
30
but we need not resolve that question because there are no errors to
aggregate.
As discussed ante, the trial court did not err in consolidating the cases
against Johnson or in finding evidence of Johnson’s prior sexual offense more
prejudicial than probative under Evidence Code section 352. Johnson did not
establish any error by the trial court in fashioning discovery sanctions, nor
did he demonstrate any prejudice of a constitutional dimension from the
prosecution’s untimely disclosures. Accordingly, no errors “worked
synergistically” to deprive Johnson of a fundamentally fair trial.
E. Johnson Fails to Prove Prejudicial Error In His Sentencing
Johnson argues that the trial court abused its discretion in denying his
motion to strike his prior strike conviction and in imposing the upper term
for count 5. We perceive no abuses of discretion, but to the extent the court
erred in finding true beyond a reasonable doubt an alleged factor in
aggravation based on planning and sophistication, we find any error
harmless.
1. Background
The first amended information alleged Johnson sustained a prior strike
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) and a prior serious felony
conviction (§ 667, subd. (a)(1)) for criminal threats (§ 422) in 2008 and served
a prison term for that conviction.17 The information also alleged Johnson had
a prior conviction for human trafficking of a minor for a commercial sex act
(§ 236.1, subd. (c)) in 2008. As to each count, the information alleged seven
circumstances in aggravation under Rule 4.421.
17 The information also alleged a third prior conviction (Health & Saf.
Code, § 11351.5) in 2000.
31
Having granted the defense’s request to do so, the trial court bifurcated
any evidence of the prior convictions and aggravating circumstances until
after a guilty verdict. Following the jury verdict, Johnson waived a jury trial
on the aggravating factors and admitted he suffered the alleged first and
second prior convictions.18 Sitting as the fact finder, the court found true two
aggravating factors as to each count: the manner in which Johnson
committed his crimes indicated planning, sophistication, or professionalism
(Rule 4.421(a)(8)), and his prior convictions were numerous or of increasing
seriousness (Rule 4.421(b)(2)).19
Prior to sentencing, Johnson filed a motion pursuant to section 1385,
subdivision (a), to strike his prior strike conviction. The trial court heard
argument on the motion, and it “den[ied] [Johnson’s] request to strike the
prior conviction, the prior [section] 422 from 2008 under Penal Code section
1385 [subdivision (a)].” The court then heard statements from Adrionna Doe
and Johnson before imposing a sentence. The court found that none of the
mitigating factors under section 1170, subdivision (b) applied and only one
mitigating factor under Rule 4.423(b)(13) applied (because an enhancement
was based on a prior conviction more than five years old). It stated that it
weighed and balanced the applicable factors and facts, and it selected the
aggravated term of 12 years for count 5. Because of Johnson’s prior criminal
threats felony conviction, the court doubled the sentence to 24 years. The
court imposed but stayed (§ 654) midterm sentences for counts 4 and 6.
18 The prosecution agreed to dismiss the third alleged prior conviction.
Later, the trial court also dismissed the serious felony conviction allegation
under section 667, subdivision (a)(1).
19 The prosecution dismissed three of the alleged aggravating factors
and the court found the prosecution had failed to prove the other two beyond
a reasonable doubt.
32
2. The Trial Court Did Not Abuse Its Discretion in Declining to
Strike the Prior Strike Conviction
Pursuant to the Three Strikes law, the determinate term sentence for a
defendant who has a pled and proven prior strike conviction is doubled.
(§§ 667, subds. (b)–(i), 1170.12.) Under section 1385, subdivision (a), “[t]he
judge or magistrate may, either on motion of the court or upon the
application of the prosecuting attorney, and in furtherance of justice, order an
action to be dismissed.” (§ 1385, subd. (a).) This authority under section
1385, subdivision (a) includes the power to “strike or vacate an allegation or
finding under the Three Strikes law that a defendant has previously been
convicted of a serious and/or violent felony . . . .” (People v. Williams (1998)
17 Cal.4th 148, 158.) “[I]n ruling whether to strike or vacate a prior serious
and/or violent felony conviction allegation or finding . . . the court in question
must consider whether, in light of the nature and circumstances of his
present felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may
be deemed outside the scheme’s spirit, in whole or in part, and hence should
be treated as though he had not previously been convicted of one or more
serious and/or violent felonies.” (Id. at p. 161.)
“[A] trial court’s discretion to dismiss strikes is not unbounded.”
(People v. Dain (2025) 18 Cal.5th 246, 256.) The Three Strikes Law
“establishes a sentencing norm,” “carefully circumscribes the trial court’s
power to depart from this norm,” and “creates a strong presumption that any
sentence that conforms to these sentencing norms is both rational and
proper.” (People v. Carmony (2004) 33 Cal.4th 367, 378.) “In light of this
presumption, a trial court will only abuse its discretion in failing to strike a
prior felony conviction allegation in limited circumstances,” such as where
the court misunderstood the scope of its discretion, considered impermissible
33
factors, ignored relevant ones, or where no reasonable people could disagree
that the defendant falls outside the spirit of the three strikes scheme. (Ibid.;
People v. Avila (2020) 57 Cal.App.5th 1134, 1141.) “Because the
circumstances must be ‘extraordinary . . . by which a career criminal can be
deemed to fall outside the spirit of the very scheme within which he squarely
falls once he commits a strike as part of a long and continuous criminal
record, the continuation of which the law was meant to attack’ [citation], the
circumstances where no reasonable people could disagree that the criminal
falls outside the spirit of the three strikes scheme must be even more
extraordinary.” (Carmony, at p. 378.) There is no requirement that the court
state its reasons for declining to strike a prior. (In re Coley (2012) 55 Cal.4th
524, 560.)
Johnson admits he had one prior strike and that “it was considered
‘serious’ by the black-letter law . . . .” He does not contend the trial court was
unaware of its discretion or mischaracterized the record. On our review,
nothing in the record shows that the information before the trial court was
materially incomplete or inaccurate. Indeed, the court not only recited the
evidence that it reviewed and relied on in making its determination, it also
invited defense counsel to submit a supplement to the probation report’s
factual summary (an invitation that was declined) and the court struck
several inaccuracies from the probation report at defense counsel’s request.
Nonetheless, Johnson claims that he falls outside the spirit of the
Three Strikes scheme. He urges that his case is “surely . . . one of the least
serious of human trafficking cases” because Keke “was already working as a
prostitute when she met [Johnson],” because “[Johnson] did not harm or
abuse her in any way beyond the bare minimum conduct described in the
34
statute,” and because “[Johnson] knew [Keke] less than two days.”20 We are
unpersuaded.
This is not such an extraordinary case that no reasonable court could
disagree with the trial court’s ruling. Johnson was not deterred by a prior
conviction for criminal threats. Moreover, that crime accompanied a
conviction for human trafficking a minor for commercial sex—a crime which
he committed again. It is not inaccurate or unreasonable to conclude he falls
within the spirit of the scheme designed to punish recidivists. This
conclusion dooms Johnson’s claim, because “ ‘[w]here the record demonstrates
that the trial court balanced the relevant facts and reached an impartial
decision in conformity with the spirit of the law, we shall affirm the trial
court’s ruling, even if we might have ruled differently in the first instance.’ ”
(Carmony, supra, 33 Cal.4th at p. 378.)
3. Johnson Fails to Show Prejudicial Error in the Court’s Finding
that Two Factors in Aggravation Were True
Under section 1170, subdivision (b), the trial court “shall,” in its
discretion impose a sentence “not to exceed the middle term” (id., subd. (b)(1))
except “when there are circumstances in aggravation of the crime that justify
the imposition of” an upper term sentence, and “the facts underlying those
circumstances have been stipulated to by the defendant or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (Id., subd. (b)(2).)
20 Johnson also explains that “[t]he only offense for which [he] received
any prison time, before the present case, was the strike offense,” and he
contends he should not be considered a habitual offender on account of a prior
felony drug offense or his prior misdemeanors. But his status as a habitual
offender under the Three Strikes law is premised solely on the prior strike
offense to which he admitted.
35
Under California law, “an aggravating circumstance must ‘make[ ] the
offense “distinctively worse than the ordinary.” ’ ” (Chavez Zepeda v.
Superior Court (2023) 97 Cal.App.5th 65, 89.) “Courts applying that
standard have not imagined an abstract, ‘ordinary case’ to determine whether
a finding of an aggravating circumstances is warranted by the facts of the
case. Rather, they have considered whether the manner of the crime’s
commission was distinctively worse ‘when compared to other ways in which
such a crime could be committed.’ ” (Ibid.) “When appellate courts have
reversed an upper-term sentence on the ground that the cited aggravating
circumstance did not make the commission of the crime distinctively worse,
they have generally concluded that the circumstance at issue was likely to be
present in most any instance of the offense or added little to the wrongfulness
already inherent in its commission.” (Id. at p. 90, and cases cited.)
Once aggravating factors are properly proven, “ ‘[s]entencing courts
have wide discretion in weighing aggravating and mitigating factors
[citations], and may balance them against each other in “qualitative as well
as quantitative terms” [citation] . . . . We must affirm unless there is a clear
showing the sentence choice was arbitrary or irrational.’ ” (People v. Avalos
(1996) 47 Cal.App.4th 1569, 1582; cf. People v. Lynch (2024) 16 Cal.5th 730,
767 (Lynch) [discussing “the distinction between the requirement of properly
proven facts and the court’s exercise of its discretion when determining the
significance of those facts”].) A court need not state its reasons for
discounting a mitigating factor. (People v. Salazar (1983) 144 Cal.App.3d
799, 813.)
Johnson’s claim that his prior convictions were not numerous or of
increasing seriousness lacks merit. California Rules of Court, rule 4.421(b)(2)
specifies that it is an aggravating circumstance that “defendant’s prior
36
convictions . . . are numerous or of increasing seriousness.” (Italics added.)
The probation report reflected that Johnson had been convicted of the
following before suffering the prior strike conviction: misdemeanor battery
(§§ 242/243) and misdemeanor attempted trespassing (§§ 602, subd. (l)/664)
committed in February 1997 and misdemeanor battery (§ 242) committed in
August 1997 when he was 20 years old; misdemeanor driving on a suspended
license (Veh. Code, § 14601.1, subd. (a)) committed in 2001 when he was 24
years old; misdemeanor possession of a controlled substance (Health & Saf.
Code, § 11350, subd. (a)) committed in 2003 when he was 26 years old. In
2007, when he was 30 years old, Johnson committed the offense underlying
the prior strike conviction—a felony for making criminal threats (§ 422)—as
well as the felony committed against Adrionna Doe for human trafficking her
as a minor (§ 236.1, subd. (c)). Although Johnson was sentenced to over 4
years in state prison in 2008 for that conviction, in 2010 he committed
misdemeanor disorderly conduct while under the influence (§ 647, subd. (f)).
He then committed the present offense in 2022 at the age of 45 years old.
These convictions are numerous. (See e.g., People v. Searle (1989) 213
Cal.App.3d 1091, 1098, [three prior convictions are numerous].) We also
disagree with Johnson that his convictions do not reflect increasing
seriousness. Even accepting that his prior strike conviction was of greater
seriousness than his present offense, his criminal history reveals someone
who committed various misdemeanors as a young man and then escalated his
misconduct to committing felonies in middle age.
In challenging the trial court’s finding true that the crime was carried
out in a manner that indicated planning or sophistication, Johnson alleges
that “[n]o facts were shown here to demonstrate that this trafficking offense
37
was any worse than the ordinary trafficking offense.” However, he does not
adequately lay out a claim challenging the sufficiency of the evidence.
In any event, our review of such a claim is limited. “ ‘ “In reviewing the
sufficiency of the evidence, we must determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.’ ” [Citation.] We must presume in support of the judgment the
existence of every fact that the trier of fact could reasonably deduce from the
evidence. [Citation.] ‘The focus of the substantial evidence test is on the
whole record of evidence presented to the trier of fact, rather than on
‘ “isolated bits of evidence.” ’ ” ’ ” (People v. Ayala (2010) 181 Cal.App.4th
1440, 1448.)
At trial, the prosecution argued the planning and sophistication factor
was evidenced by Johnson’s use of a female recruiter, by a process of
grooming Keke through buying her clothes and being nice, by preparing Keke
for sex work by getting her nails done. On appeal, Johnson not only points to
isolated bits of testimony to dispute the prosecution’s case, but the testimony
he cites does not appear to state what he claims it does. For example, the
prosecution’s expert did not “explain[] that pimps typically offered shelter,
food, and/or protection to the women they worked with.” Rather, the expert
explained that a trafficker and exploiter of children may seek to exchange sex
for non-monetary things, including shelter, basic needs, or drugs. Later,
when describing strategies traffickers use to sexually exploit youth, the
expert opined that there are “a variety of strategies” and “[t]here are certain
things that are common between the different type[s] [of] different
strategies.” The prosecutor then posed a hypothetical in which a trafficker
was “very nice” to a 16 year old over a course of days and asked whether, in
38
the expert’s experience, that was “consistent or inconsistent” with the
behavior of victims who stay with a trafficker. The expert responded that “it
can be,” explaining that “[s]ome people are nice to minors, because they
actually like them” whereas others are nice to minors as a strategy for
grooming them.
But even if we accept that the level of planning and sophistication in
the present case is not distinctively worse compared to other ways the crime
could be committed, we find any error harmless. Johnson is mistaken that
the harmless beyond a reasonable doubt standard applies here. Lynch,
supra, 16 Cal.5th at page 768, on which he relies, holds that this standard
applies to a claim that the sentence rests at least in part on an aggravating
circumstance that was established in violation of the defendant’s right to jury
trial under the Sixth Amendment. Because Lynch was sentenced prior to the
amendments to 1170, subdivision (b) that prohibited imposition of upper-
term sentences in the absence of jury findings or a defendant’s stipulation to
aggravating facts (id. at pp. 744–745, 748), Lynch “was not asked to expressly
waive jury trial on aggravating circumstances.” (Id. at p. 769.) Here,
Johnson was sentenced after the amendments to section 1170, subdivision
(b), and he waived his right to a jury trial, so the Sixth Amendment concerns
at issue in Lynch are not present. (See id. at p. 768.) While he argues that
the aggravating circumstance was substantively improper, he does not claim
that there was a constitutional violation in the procedure by which it was
found true—a court trial following a valid jury trial waiver.
“ ‘When a trial court has given both proper and improper reasons for a
sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence
had it known that some of its reasons were improper.’ ” (Lynch, supra, 16
39
Cal.5th at p. 760, fn. 14.) Put differently, “[w]hen a trial court has abused its
discretion in choosing among available sentencing options, such as by relying
on an improper sentencing factor, a reviewing court must still affirm unless
‘the error complained of has resulted in a miscarriage of justice.’ ” (People v.
McDaniels (2018) 22 Cal.App.5th 420, 426; Cal. Const., art. VI, § 13.) “In
these situations, the trial court has revealed which sentencing choice it
prefers, and the reviewing court must decide whether there is a reasonable
probability that the trial court’s lawful exercise of discretion on remand will
lead it to make a different choice.” (McDaniels, at p. 426.)
The record clearly shows remand would be an idle act. At sentencing,
defense counsel again argued that Johnson’s crime “doesn’t rise to the level of
the worst of this type of crime” and urged the trial court “to make an apples
to apples comparison.” The court responded that “[it] heard these arguments
when we had the Court trial on the aggravating factors. So [the court]
know[s] what [defense counsel’s] position is. [The court] [doesn’t] necessarily
agree.” The court gave defense counsel the last word, and defense counsel
maintained it was a “mitigated case” and “the determination should be made
of . . . not imposing the aggravated term.” The court responded that it not
only considered “the facts of this underlying offense” but also “Mr. Johnson
has spent decades building up a record.” In stating the sentence, the court
expounded: “The reasons for the Court selecting the aggravated term are
numerous, but [the court] can rely on the aggravating factors that were
proven beyond a reasonable doubt that the Court found true.” In view of that
colloquy, it is clear the court would reimpose an aggravated sentence solely
on the aggravating factor that Johnson’s convictions were numerous and of
increasing seriousness. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894,
1896 [declining to remand where trial court indicated defendant was “ ‘the
40
kind of individual the law was intended to keep off the street as long as
possible’ ”].)
III. DISPOSITION
The judgment is affirmed.
41
_________________________
Moorman, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Goldman, J.
* Judge of the Superior Court of California, County of Mendocino,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
42