People v. Manning CA2/2

Filed 2/18/14 P. v. Manning CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B241065

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA089879)
v.

ADAM JAROME MANNING,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Tomson T. Ong, Judge. Affirmed.

William P. Daley for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.

******
 Appellant Adam Jarome Manning appeals from the judgment entered upon his
conviction by jury of two counts of pimping a minor over age 16 (Pen. Code, § 266h,
subd. (b)(1),1 counts 1 and 3), two counts of pandering by encouraging a minor over
age 16 (§ 266i, subd. (b)(1), counts 4 and 6), one count of pimping a minor under age 16
(§ 266h, subd. (b)(2), count 2), one count of pandering by encouraging a minor under
age 16 (§ 266i, subd. (b)(2), count 5), and six counts of lewd acts upon a child (§ 288,
subd. (a), counts 7–12). The jury also found true allegations that counts 1 through 6 were
committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). The trial
court sentenced appellant to a total term of 36 years and four months in state prison. The
trial court awarded appellant 93 days of custody credit.
Appellant contends that (1) the trial court erred by allowing a police officer to
testify regarding the Stockholm Syndrome, (2) the trial court erred in giving the adoptive
admission instruction (CALJIC No. 2.71.5), (3) the trial court failed to instruct on lesser
included offenses, and (4) appellant suffered ineffective assistance of counsel.
Finding no merit to appellant’s contentions we affirm the judgment.
FACTUAL SUMMARY
Prosecution Case
16-year-old Z.S.
In June 2011, appellant contacted 16-year-old Z.S. on the Internet via Facebook.2
Z.S. told appellant her address and he picked her up in his silver-colored Mustang and
took her to an apartment. Approximately one week later, Z.S. and appellant had sex and
she became his girlfriend. Z.S. called appellant “G-Baby” and she knew he was a
member of the Baby Insane clique of the Insane Crips gang.
Approximately two weeks later Z.S. began working as a prostitute for appellant.
Appellant explained the “rules of the game” to Z.S. Z.S. was not to talk to

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Facebook is an Internet social networking site. (See In re Victor L. (2010) 182
Cal.App.4th 902, 906.)

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African-American males or make eye contact with them because they could be pimps.
Appellant gave Z.S. condoms and told her to charge $100 to $150 for sex, $60 for
fellatio, and $1,000 for anal sex. Z.S. was to hand over all the money to appellant.
Appellant bought Z.S. clothing and took her to the nail and hair salon. He bought her
junk food and provided her with a place to sleep at a hotel. Z.S. worked as a prostitute
for appellant for approximately 30 nights. She performed two or three sex acts each night
and earned thousands of dollars for appellant. While Z.S. worked, appellant parked his
Mustang on a nearby street. At trial, Z.S. remembered the car had a dent on the driver’s
side, but she did not know when the damage occurred.
13-year-old J.J.
In June 2011, Z.S. introduced her 13-year-old cousin J.J. to appellant and they
talked about J.J. working as a prostitute for appellant. Z.S. told appellant that J.J. was
13 years old. Appellant picked up Z.S. and J.J. and drove them to the Luxury Inn Motel
in Long Beach. When they went inside the motel room, there was another man and a girl
who J.J. described as “another pimp and another ho.” Between the end of June and early
July, appellant had sex with J.J. “at least two times.” The first time they had sex was in
the motel room when Z.S. and another man were present. In addition to intercourse,
appellant placed his mouth on J.J.’s vagina and orally copulated her once, and J.J.
performed fellatio on appellant at least three different times. J.J. and appellant had
intercourse at the Carson Plaza Hotel on July 8, 2011, the day before she was arrested.
Appellant explained similar “rules of the game” to J.J. that he had earlier told Z.S.
He told her, “Stay loyal. Keep your head down. Don’t talk to any square niggers.” He
also told her how much to charge for various sex acts and told her that she was to give
him all the money. Appellant provided J.J. with condoms, a telephone, and clothing. He
dropped her off at various locations in Los Angeles County and watched from a distance
in his car. Prior to her arrest on July 9, 2011, J.J. worked for appellant four or five times
and met with three or four men on average each time. Appellant hit J.J. twice when he
found out that she kept $50 from the money she earned.

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 16-year-old S.M.
In July 2011, J.J. introduced her 16-year-old best friend, S.M., to appellant.
Appellant picked up S.M. from her home and took her to a motel room. S.M. was
introduced to another man in the motel room who told appellant that he wanted S.M. on
his “team.” Appellant and the other man, who S.M. believed to be a pimp, argued over
who would get her on his team. At some point, appellant had intercourse with S.M. S.M.
testified that she ended up on “G-baby’s” team with J.J. and Z.S. Appellant supplied
S.M. with condoms and on the two occasions she went out to work as a prostitute she
gave appellant the money she earned. S.M. testified that appellant drove a silver-colored
Mustang but at trial she could not remember which side of the car was damaged.
Investigation and Arrest
On July 9, 2011, Los Angeles Police Department Sergeant Marc Evans was
patrolling an area in North Hollywood known for street prostitution. Sergeant Evans saw
S.M. and J.J. speak with a number of Hispanic men including one who entered an alley
after speaking with S.M. and J.J. Sergeant Evans saw S.M. and J.J. walk away from a
silver-colored Mustang with “high end” chrome custom rims and enter the alley. S.M.
and J.J. performed a sex act on the Hispanic male in the alley. Sergeant Evans called in
other police officers to the area. S.M. and J.J. were arrested.
Long Beach Police Department (LBPD) Detective Kenneth Turner conducted an
investigation into human trafficking and met with S.M., J.J., and Z.S. to identify the
perpetrator. The girls were kept separated and each of them identified appellant from a
six-pack photographic lineup.
LBPD Detective Chris Zamora testified as a gang expert. He had spent most of
his career investigating the criminal activities of the Insane Crips gang, the largest Crips
gang in Long Beach. Appellant was a self-admitted member of the Insane Crips with the
moniker “G-Baby” and had numerous tattoos signifying allegiance to the Insane Crips.
He had been arrested three times for violation of the Insane Crips gang injunction.
Responding to a hypothetical question based on the facts of this case, Detective Zamora

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opined that the acts were committed in association with, and for the benefit of the Insane
Crips gang.
Defense Case
Christine Boodhai, appellant’s mother helped defense counsel prepare two
calendar charts to account for appellant’s time between June 1 and July 9, 2011.3
Ms. Boodhai purchased a silver-colored Mustang with “shiny” alloy type rims for
appellant and paid for the insurance. The Mustang was in a repair shop from May 20
through June 15, 2011.4 Ms. Boodhai testified that appellant was involved in an accident
on Sunday, June 24, 2011, at Magic Mountain in Valencia. The Mustang was “totaled”
and surrendered to the insurance company. Ms. Boodhai brought Allstate Insurance
documents to court and agreed that the “Date of Loss” was the same as the date of the
accident. The “Date of Loss” according to the insurance documents was July 13, 2011.
Later, Ms. Boodhai testified that the July 13 date in the insurance documents was not the
date the accident occurred and assumed it was the date the insurance company completed
the paperwork. Ms. Boodhai testified that she was aware of appellant’s whereabouts
between June 1 and July 9, 2011, and there was no block of time in which appellant could
have stayed 20 nights in a motel.
Ann Smith, appellant’s great-aunt, testified that from July 3 through July 17, 2011,
appellant spent the evenings with her. Smith was arrested for forgery and passing bad
checks and convicted of a felony in 2006. She denied convictions for false identification
to a police officer and assault with a deadly weapon, and denied that she was arrested for
assaulting a school officer.
Monique Sims, appellant’s cousin, also testified for the defense. She was not
acquainted with Z.S., J.J., or S.M., but she could recognize them. She testified that on a

3 The calendar charts were not admitted into evidence.

4 On May 19, 2011, LBPD Officer Matthew Mills stopped appellant after he left the
scene of a traffic accident. There was damage to the Mustang’s passenger side and
appellant told Officer Mills the damage was the result of a side-swipe collision with
another vehicle.

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number of occasions in June or July, she saw them enter and exit a burgundy-colored
Cadillac driven by a male. Appellant was not the driver of the Cadillac. Smith
acknowledged that she suffered convictions for two counts of felony burglary and forgery
in 2008, and a conviction for grand theft in 2007, but opined that she was wrongly
convicted.
People’s Rebuttal
LBPD Detective Satwan Johnson was involved in an automobile accident on
January 13, 2011, and filed a claim with her insurance company. The date of “total loss”
on her insurance paperwork was the same date of her car accident. Detective Johnson
reviewed the chart prepared by appellant’s mother and her testimony which indicated that
appellant left Long Beach at 2:00 p.m. on Sunday, June 24, and that appellant’s car was
totaled at Magic Mountain in Valencia, at 2:30 p.m. Detective Johnson drove from Long
Beach to Valencia many times and estimated the trip “takes about [an] hour and a half to
two hours, depending on traffic.” She testified that there was “no way” to “make it in
30 minutes” “unless you had a helicopter.”
DISCUSSION
I. Detective Turner’s Testimony
A. Contention
Appellant contends that the trial court erred in permitting Detective Turner to
testify regarding the Stockholm Syndrome because he was not qualified to testify as an
expert on the subject. The People argue that appellant failed to object below and the
issue is waived on appeal. The People further argue that Detective Turner was qualified
to testify as an expert.
B. Background
During the prosecutor’s direct examination, Detective Turner testified regarding
his personal involvement in arresting 350 to 400 prostitutes, and his involvement as part
of a team in over a thousand arrests during his 21 years in the LBPD’s vice squad. He
was the lead detective of the Missing Persons and Human Trafficking Team and taught
other officers how to investigate prostitution. He had testified as an expert on human

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trafficking and prostitution numerous times. Detective Turner explained the “rules of the
game” including how pimps exert control over their prostitutes. He was then asked by
the prosecutor to describe Stockholm Syndrome for the jury. He stated, “Stockholm
Syndrome is similar to Patty Hearst in regards to sympathizing with the captors,
sympathizing with the person who had control over her.” When asked how it related to
the facts of this case Detective Turner continued, “What they teach at the San Diego legal
training center, and it’s what my partner’s treatise, it’s similar to the domestic violence
cycle and Stockholm cycle. The pimps, in the process they put the girls through,
indoctrinating them, getting them to be their prostitute, what they should do, prostituting
is the right thing, prostituting will be fun and exciting, we will be able to achieve these
things together if you prostitute for us, that type of thing.” Detective Turner confirmed
that based on his experience he had seen situations where a minor girl was so enthralled
with the pimp that she stayed and worked for the pimp even after he abused and hit her.
On cross-examination the following colloquy occurred:
“[DEFENSE COUNSEL]: And you mentioned that, and I think it was generally,
that sometimes prostitutes develop Stockholm Syndrome; is that accurate?
“[DETECTIVE TURNER]: Traits similar to Stockholm.
“[DEFENSE COUNSEL]: Not Stockholm?
“[DETECTIVE TURNER]: I’m not a doctor, so I couldn’t diagnose a victim.
“[DEFENSE COUNSEL]: There has been no diagnosis of Stockholm Syndrome
in either of these three victims, were there?
“[DETECTIVE TURNER]: No.
“[DEFENSE COUNSEL]: And then, in your experience, are prostitutes
sometimes afraid of their pimps?
“[DETECTIVE TURNER]: Yes.”
C. Analysis
Without deciding whether appellant has forfeited his objection on appeal, we
conclude that the challenged testimony by Detective Turner was properly admitted.

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 “A trial court’s decision to admit or exclude evidence is reviewable for abuse of
discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292; People v. Avila (2006) 38
Cal.4th 491, 578.)
Here, appellant acknowledges that Detective Turner was qualified to testify as an
expert in human trafficking but maintains that he was not qualified to offer psychological
opinion testimony to explain the conduct of prostitutes. Based on our review of the
record, Detective Turner’s testimony that the victims had traits “similar to Stockholm”
was not an offer of psychological opinion testimony. Detective Turner testified that the
sympathetic feelings prostitutes have for their pimps had similarities with domestic
violence and hostage/captor relationships. Detective Turner expressed no expert opinion
as to whether any of the three victims suffered from Stockholm Syndrome. He
specifically stated that he was not a doctor and could not diagnose such a psychological
phenomenon, and that none of the victims had been diagnosed with Stockholm
Syndrome.
Contrary to appellant’s contention, Detective Turner did not “invoke” the
Stockholm Syndrome to “explain” the relationship between the victims and appellant.
Instead, his testimony to explain the conduct of the victims was based on his training and
experience dealing with prostitutes and pimps gained over the course of his 21 years on
the LBPD’s vice squad, and his position as lead detective of the Missing Persons and
Human Trafficking Team.
If we agreed with appellant and found that the trial court erred by permitting the
references to Stockholm Syndrome, we nonetheless would conclude that error was
harmless under People v. Watson (1956) 46 Cal.2d 818. Under Watson, appellant had the
burden on appeal to show that it is reasonably probable he would have obtained a more
favorable verdict had the trial court not erred. (Id. at p. 836.) The evidence of
appellant’s guilt was overwhelming. All three victims described how appellant had sex
with them and induced them into prostitution. It is not reasonably probable a verdict
more favorable to appellant would have resulted had the trial court excluded the
challenged testimony. (People v. Bowker (1988) 203 Cal.App.3d 385, 395 [court’s

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failure to limit expert’s Child Sexual Abuse Accommodation Syndrome testimony was
harmless error].)
II. The Trial Court Properly Instructed the Jury on Adoptive Admissions
A. Contentions
Appellant contends that the trial court erred by giving the jury an adoptive
admission instruction pursuant to CALJIC No. 2.71.5 based on an argument between
appellant and another pimp over who would get S.M. on his team.
B. Relevant Authority
A trial court in a criminal case has a duty to instruct on general principles of law
applicable to the case (People v. Blair (2005) 36 Cal.4th 686, 745), that is, “‘“‘those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.’”’” (People v. Valdez (2004) 32
Cal.4th 73, 115.) However, “[i]t is error to give an instruction which, while correctly
stating a principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129.) “In assessing a claim of instructional error, ‘we must view
a challenged portion “in the context of the instructions as a whole and the trial record” to
determine “‘whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way’ that violates the Constitution.”’” (People v. Jablonski
(2006) 37 Cal.4th 774, 831; see People v. Guiton, supra, at p. 1130 [error in giving
instruction that has no application to facts reviewed under harmless error standard in
People v. Watson, supra, 46 Cal.2d 818].)
Generally, “[a] statement by someone other than the defendant is admissible as an
adoptive admission if the defendant ‘with knowledge of the content thereof, has by words
or other conduct manifested his adoption [of] or his belief in its truth.’ [Citations.] [¶]
In determining whether a statement is admissible as an adoptive admission, a trial court
must first decide whether there is evidence sufficient to sustain a finding that: (a) the
defendant heard and understood the statement under circumstances that normally would
call for a response; and (b) by words or conduct, the defendant adopted the statement as
true.” (People v. Davis (2005) 36 Cal.4th 510, 535.)

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 C. Background
S.M. testified that appellant took her to a motel room where another man and two
other girls were present. She assumed the man was a pimp and the two girls were
prostitutes. The pimp told appellant that S.M. was new and he wanted her on his “team.”
Appellant responded that he wanted S.M. on his team and an argument ensued between
appellant and the pimp over who would get S.M. on his team. During discussions
concerning jury instructions, the trial court informed the parties that it would give a sua
sponte instruction on adoptive admissions. The trial court explained that the instruction
was based on “the discussion allegedly of [appellant] and a certain individual as to who
gets one of the workers and the negotiation is thereto.” Regarding the discussion, the
trial court further explained: “[Appellant] was talking about who gets the new one, the
new prostitute with another person arguably named Money. . . . [Appellant] was afforded
an opportunity at the time to say I don’t know anything about what you are talking about,
I’m not a pimp. That is, [he is] afforded the opportunity to explain or deny, of which he
did not. Instead he engaged in that. That is adoptive admission of the statement made by
the other person.”
The jury was instructed as follows: “If you should find from the evidence that
there was an occasion when the defendant, number one, under conditions which
reasonably afforded him an opportunity to reply; number 2, failed to make a denial in the
face of an accusation, expressed directly to him or in his presence, charging him for the
crime for which the defendant now is on trial or tending to connect him with its
commission; and, number 3, that he heard the accusation and understood its nature, then
the circumstance of his silence and conduct on that occasion may be considered against
him as indicating an admission that the accusation was true. Evidence of an accusatory
statement is not received for the purpose of proving its truth, but only as it supplies
meaning to the silence and conduct of the accused in the face of it. Unless you find
defendant’s silence and conduct at the time indicated an admission that the accusatory
statement was true, you must entirely disregard the statement.”

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 D. Analysis
Although the trial court does not have a sua sponte duty to instruct on adoptive
admissions, it “may certainly instruct on the matter if [it] think[s] it best to do so.”
(People v. Carter (2003) 30 Cal.4th 1166, 1198.) Contrary to appellant’s characterization
that the instruction was based on appellant and another male in the motel explaining “the
Rules,” the trial court properly determined the instruction was warranted by the evidence.
The instruction was based on the “negotiation” between appellant and the pimp over
which one of them would get to keep S.M. on his team of prostitutes.
Appellant’s conduct was not the natural reaction of an innocent man to an untrue
accusation. (People v. Simmons (1946) 28 Cal.2d 699, 712.) The statement “I want her
on my team” uttered by the pimp in the motel room provided appellant with an
opportunity to ask the pimp what he was talking about and what he meant by “team.”
Appellant did not avail himself of that opportunity and instead argued with the pimp
because he wanted S.M. to work as a prostitute for him. (See People v. Fauber (1992) 2
Cal.4th 792, 852 [“For the adoptive admission exception to apply, . . . a direct accusation
in so many words is not essential”].) Appellant failed to deny that he was a pimp and his
negotiations over S.M.’s “ownership” provided sufficient evidence that he was familiar
with the rules of the game associated with prostitution and adopted the other pimp’s
incriminating statements.
Even assuming the trial court erred in instructing the jury with CALJIC
No. 2.71.5, the error was harmless under any standard (Chapman v. California (1967)
386 U.S. 18, 24; People v. Watson, supra, 46 Cal.2d at pp. 836–837) in view of the
overwhelming evidence of appellant’s guilt. All three victims provided compelling
testimony describing how appellant had sex with them and then induced them into
prostitution. Many details of their testimony were corroborated by Sergeant Evans. The
fact that appellant failed to deny that he was a pimp was not likely to have affected the
jury’s decision. (Watson, supra, at p. 836.)

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III. Lesser Included Offenses Instruction
Appellant contends that the trial court had a sua sponte obligation to instruct the
jury on lesser included offenses that were allegedly supported by the evidence.
Specifically, he contends the trial court erred by not instructing on attempted pandering,
attempted pimping, assault, and battery.
“Like most jurisdictions, California recognizes that an offense expressly alleged in
an accusatory pleading may necessarily include one or more lesser offenses. The
definition of a lesser necessarily included offense is technical and relatively clear. Under
California law, a lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser. [Citations.]” People v. Birks (1998) 19
Cal.4th 108, 117–118.)
A trial court has a sua sponte duty to instruct the jury on an uncharged offense
included in the charged crime if supported by substantial evidence. (People v. Waidla
(2000) 22 Cal.4th 690, 733.) “Such instructions are required only when there is
substantial evidence that, if the defendant is guilty at all, he is guilty of the lesser offense,
but not the greater. [Citations.]” (People v. Wyatt (2012) 55 Cal.4th 694, 704.)
“The error in failing sua sponte to instruct, or to instruct fully, on a lesser included
offense is not a fundamental structural defect in the mechanism of the criminal
proceeding ([People] v. Cahill [(1993)] 5 Cal.4th 478, 502) which cannot or should not
be evaluated for prejudice by reference to ‘the entire cause, including the evidence’ (Cal.
Const., art. VI, § 13). Instead, like the erroneous introduction of an involuntary
confession, or the instructional omission of an element of a charged offense or sentencing
enhancement, it is a mere trial error, one committed in the presentation of the case to the
jury. By the same token, the probable adverse effect of an erroneous failure to provide a
lesser offense option in a particular case can readily be assessed by an individualized,
concrete examination of the record in that case. Under such circumstances, as in Cahill,
the error must therefore be evaluated under the generally applicable California test for

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harmless error, that set forth in Watson.” (People v. Breverman (1998) 19 Cal.4th 142,
176.)
The People argue that appellant invited any error when appellant’s defense
counsel agreed with the trial court that instructions on lesser included offenses should not
be given. We need not, however, decide whether counsel’s decision to forego
instructions on anything other than the charged offenses rose to the level of invited error,
because the record contains no substantial evidence of lesser included offenses, and in
any case any error in failing to give the instruction was necessarily harmless.
On the evidence presented, there was no legally cognizable theory upon which the
jury could conclude that appellant was guilty only of attempted pandering and attempted
pimping, as charged in counts 1 through 6. (People v. Kraft (2000) 23 Cal.4th 978, 1063
[instructions on lesser included offenses require more than an unexplained rejection of
the prosecution’s evidence].) During the discussion on jury instructions appellant’s
defense counsel agreed with the trial court that appellant was raising an alibi defense.
The jury was presented with two clear choices—the prosecution’s evidence established
completed acts of pimping and pandering, while appellant’s defense, if believed, required
an acquittal. Appellant was “either guilty of the crime charged or not guilty of any
crime,” and no instruction on the lesser included attempt offenses was required. (People
v. Barton (1995) 12 Cal.4th 186, 196, fn. 5.)
Equally unavailing is appellant’s claim with respect to the trial court’s failure to
instruct the jury with assault and battery as lesser included offenses of lewd acts on a
child under 14, as charged in counts 7 through 12. In essence, appellant’s argument is
that the jury could have considered that he was merely guilty of a harmful or offensive
non-sexual touching. The evidence showed that the acts underlying the charges of lewd
acts upon J.J. were committed for a sexually-motivated purpose. The evidence showed
that in June or early July of 2011, appellant had sexual intercourse with J.J. on more than
two occasions, he placed his mouth on J.J.’s vagina and orally copulated her, and she
performed fellatio on him on at least three different occasions. Instruction on the lesser
included offenses was not warranted.

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 In a noncapital case, an error in failing to instruct on a lesser included offense
requires reversal only if the error is prejudicial under the standard of People v. Watson,
supra, 46 Cal.2d at page 836––that is, only if it is reasonably probable that defendant
would have obtained a more favorable result if the error had not occurred. (People v.
Breverman, supra, 19 Cal.4th at p. 178.) In other words, to find the error prejudicial, the
entire record must show that if given the choice between the lesser and the greater
offenses, it is reasonably probable the jury would have convicted of the lesser. (Id. at
p. 178, fn. 25.) Appellant engaged in a persistent pattern of explicit sexual contact with
J.J., and appellant has failed to show that had the jury been given the option of returning a
guilty verdict on assault or battery rather than lewd acts upon a child, it would have
convicted of the lesser rather than the charged offense. (Cal. Const., art. VI, § 13.)
IV. No Ineffective Assistance of Counsel
Appellant raises a number of instances of alleged ineffective assistance of counsel.
He contends that trial counsel failed to effectively present an alibi defense for appellant
or the Mustang. We examine each identified claim and reject appellant’s argument.
When a defendant raises a claim of ineffective assistance of counsel, he must
establish that his ‘“counsel’s performance fell below an objective standard of
reasonableness under prevailing professional norms, and there is a reasonable probability
that, but for counsel’s unprofessional errors and/or omissions, the trial would have
resulted in a more favorable outcome.’” (In re Cudjo (1999) 20 Cal.4th 673, 687; accord,
People v. Ledesma (1987) 43 Cal.3d 171, 217–218.) ““‘The benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.”’” (In re Cudjo, supra, at p. 687; accord, Strickland v.
Washington (1984) 466 U.S. 668, 686.)
Appellant’s first claim is based on appellant’s alibi defense and the trial court’s
exclusion of the two calendars prepared by appellant’s mother, which accounted for
appellant’s time in June and July of 2011. Defense counsel asked the trial court to admit
the two calendars into evidence. He argued that Ms. Boodhai prepared both calendars,

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testified regarding each of the days in June and the first three days in July, and subjected
herself to cross-examination. The prosecutor objected on hearsay grounds. The trial
court denied defense counsel’s request because the exhibits were “merely a summary of
the testimony of the witness.” The trial court further explained: “It is no different than
[the prosecutor] doing PowerPoint presentation . . . It’s generated for the purpose of
advocacy in trial and summary of the evidence in trial as opposed to trial evidence
itself. . . .”
Appellant claims the testimony of the witnesses was “summary in nature, with the
detail left to the calendar charts” but does not state what additional details the calendars
provided that Ms. Boodhai’s and Ms. Smith’s testimony did not cover, or how the failure
to introduce these additional details prejudiced him. The relevant information contained
in the two calendars was duplicative of the witnesses’ testimony and further argument by
defense counsel that the exhibits should be introduced into evidence would have been
futile. Appellant cannot establish that counsel’s performance was unreasonable or that he
suffered any prejudice.
Appellant next claims that counsel was not familiar with the “background of his
witnesses” because if he had known of the prior convictions suffered by Ms. Smith and
Ms. Sims, he could have raised the issues on direct examination and “minimized the
harm.”
Appellant fails to show that the decision by defense counsel not to ask about the
prior convictions on direct examination was unreasonable under the circumstances of this
case. Ms. Smith denied that she suffered convictions for false identification to a police
officer in 1999 or for assault with a deadly weapon in 1975, and the prosecutor did not
impeach her with official records or evidence of these incidents. Appellant’s claim that
defense counsel was not familiar with the background of the witnesses was in and of
itself speculative as defense counsel may have reasonably decided to place the burden on
the prosecution to prove the prior convictions. Defense counsel may for tactical reasons
ask a defense witness to admit prior convictions on direct examination but we cannot find
any authority for the proposition that failure to do so constitutes a deficient performance.

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Moreover, appellants contention fails because his claim of prejudice is also speculative.
(People v. Fairbank (1997) 16 Cal.4th 1223, 1241 [defendant must prove prejudice that is
a demonstrable reality and not “simply speculation”].)
Appellant’s last two claims of ineffective assistance of counsel focus on his
attempt to establish an alibi for his Mustang for the June 1 to July 9 period. Appellant
claims that his defense counsel was ineffective because he failed to acquire
documentation or witness testimony to show that the Mustang was (1) totaled as a result
of a June 24 accident, and (2) was in a body shop from May 20 to June 15.
Counsel did, in fact, try to acquire documentation from appellant’s family to
corroborate Ms. Boodhai’s testimony that the car was totaled on June 24, 2011. At a
sidebar to discuss the late disclosure of the insurance documents, defense counsel
explained that the late disclosure was unintentional and that obtaining documentation was
“like pulling teeth from them.” He stated, “I have been asking for it for a while. They
couldn’t corroborate.” Defense counsel may have decided as a tactical matter not to
present any documentary or testimonial evidence from the repair shop, or none in fact
may have existed to show the Mustang was totaled on June 24, 2011. The existence of
documentary or testimonial evidence helpful to appellant’s cause was highly questionable
given that the insurance documents Ms. Boodhai brought to court showed that the
Mustang’s “Date of Loss” was July 13, 2011, four days after S.M. and J.J. were arrested.
For similar tactical reasons, defense counsel may have decided not to present
evidence that the Mustang allegedly was in a repair shop until June 15, 2011.
Furthermore, it was not relevant as none of the witnesses testified that they saw the
Mustang or that it was operable prior to June 15. Z.S. testified that she first met appellant
“in the middle” of June 2011. Defense counsel asked if it was “around the 15 of June”
and she responded, “Approximately, I think so.” J.J. testified that she met appellant for
the first time in June 2011. When asked for a specific date she replied: “Just in the
month of June.” S.M. was introduced to appellant by J.J. in July 2011.
Accordingly, appellant’s ineffective assistance of counsel claim fails. He has not
shown his counsel’s representation was deficient; nor has he shown a reasonable

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probability that any of the things his attorney “failed” to do would have resulted in a
more favorable outcome for him.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J. *
FERNS
We concur:

____________________________, Acting P. J.
ASHMANN-GERST

____________________________, J.
CHAVEZ

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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