Filed 3/15/22 P. v. Allagoa CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B308118
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA093900)
v.
HAYDEN O. ALLAGOA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lauren Weis Birnstein, Judge. Affirmed.
Boyce & Schaefer and Laura Schaefer, under appointment
by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda Lopez and Eric J. Kohm,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
A jury convicted defendant and appellant Hayden O.
Allagoa of first degree premeditated murder (Pen. Code, § 187,
subd. (a) 1 [count 1]) and assault with a semi-automatic firearm
(§ 254, subd. (b) [count 3]).2 The jury found true firearm
allegations associated with each count (§ 12022.53, subds. (b)–(d)
[count 1]; § 12022.5, subd. (a)).
The trial court Imposed a sentence of 25 years to life in
count 1, and struck the attached firearm enhancement in the
interest of justice (§ 12022.53, subds. (b)–(d)). It imposed a
concurrent sentence of 10 years in count 3, consisting of the
middle term of six years for assault with a semi-automatic
firearm and four years for the associated firearm enhancement
(§ 12022.5, subd. (a)).
On appeal, Allagoa contends that there was insufficient
evidence of premeditation; the manner in which he was legally
represented violated his constitutional rights; the prosecutor
committed misconduct in closing argument; counsel provided
ineffective assistance; the trial court abused its discretion by
admitting and excluding certain evidence; and cumulative errors
deprived him of a fair trial.
We affirm the trial court’s judgment.
1 All further
statutory references are to the Penal Code
unless otherwise indicated.
2 The prosecutor dismissed a charge of
attempted
premeditated murder in count 2. (§§ 187/664.)
2
FACTS
Prosecution
Micrin Lias
On September 1, 2016, sometime between 4:00 p.m. and
5:00 p.m., Micrin Lias went to Koff’s Liquor store. Lias met his
good friend Joseph Goudeau there and the men started drinking
in the parking lot outside the store. Lias was also smoking
marijuana.
At about 8:30 p.m., Lias saw Allagoa, who he had seen on
one other occasion, following Goudeau on the sidewalk and into
the parking lot. At that point, Goudeau was “pretty smashed up”
from drinking. Lias was also intoxicated. Goudeau turned
around and started arguing with Allagoa. Lias tried to intervene.
He asked them why they were fighting. He said, “Get it off y’all
chest. Go and get it over with. Let it go.” Goudeau took off his
shirt and put it on the ground as if to fight, and then picked it up.
Allagoa punched Goudeau, knocking him down. Goudeau got up
and punched Allagoa, knocking Allagoa to the ground.
All three men ran to the north part of the parking lot.
Allagoa pulled out a semiautomatic gun and aimed it at
Goudeau.3 Lias had not seen the gun before Allagoa pulled it out.
Lias positioned himself between Allagoa and Goudeau, and found
himself “looking down a barrel.” He pleaded with Allagoa not to
3 Lias testified hedid not remember seeing Goudeau pick
anything up from the ground. After he was shown surveillance
video of the event, Lias agreed that Goudeau had picked up an
object, but he could not tell what it was.
3
shoot Goudeau. Lias thought Goudeau was behind him, but
Goudeau stepped to the right of him while Lias had his back
turned. Allagoa warned Lias, “Watch out, big homie.” Allagoa
aimed at Goudeau and pulled the trigger twice, but the gun was
jammed and did not fire. Allagoa cleared the gun’s chamber. As
he was racking the gun to load another bullet, Goudeau moved
around Lias and knocked the gun out of Allagoa’s hands. All
three men ran to retrieve it, but Lias and Goudeau were very
drunk and they both fell down. Allagoa got the gun. Goudeau
jumped up, and Allagoa shot him from a distance of about 10 to
15 feet.
Lias did not see the actual shooting because he was still
getting up, but he heard the shot. When he looked up he saw
that Goudeau had fallen into a planter. Lias went over to
Goudeau. Goudeau had been shot just below his chest. Lias did
not see anything in Goudeau’s hands. At first, Allagoa stood
there looking at Goudeau as if to “see if he gonna die.” Then he
walked away. Lias jumped at Allagoa. Allagoa fled and Lias
gave chase. Allagoa pointed the gun at Lias as he was running
away and Lias retreated into the parking lot. Lias was unarmed.
Lias had not seen Goudeau with a weapon at any point during
the fight.
Lias identified Allagoa as the shooter in a photographic
lineup right after the killing, and identified him again in court.
Thomas Curran
Thomas Curran and Bryan Benedetti were building a wall
at Benedetti’s house near the liquor store parking lot on
September 1, 2016. They were in Benedetti’s truck when Curran
4
saw two men (Allagoa and Goudeau) in a heated argument. A
third man (Lias) was trying to stop them from fighting. Curran
did not know any of the men.
Curran saw the men begin to fight. Curran could not
remember who threw the first punch. Allagoa was “very
aggravated.” He was “coming after [Goudeau] like a mad bull.”
As the men were “fighting and boxing,” Curran saw a heavy
object swinging around in Allagoa’s pocket. Allagoa was beating
Goudeau and knocked him to the ground. Allagoa was “getting
the better” of Goudeau, who was “a lot weaker.” Although both
men threw punches, Goudeau did not hit Allagoa as often as
Allagoa hit Goudeau. Curran testified that Allagoa was
“whacking the heck out of [Goudeau].” “[Allagoa] was socking
[Goudeau] multiple times over and over again like a pro boxer.
And [Goudeau] was like, a kindergartener, first base.”
Goudeau picked up a brick, and Allagoa pulled a gun out of
his pocket.4 It was a small semi-automatic handgun. Goudeau
dropped the brick and picked it up several times. Allagoa started
punching Goudeau with one hand and pistol whipping him with
the other hand.
The gun flew out of Allagoa’s hand. Goudeau and Allagoa
ran across the parking lot to retrieve it. They fought for
possession of the gun, but Allagoa got it. Allagoa and Goudeau
fought for about 15 to 20 seconds and then separated to
approximately 20 feet apart. Lias got between them and tried to
intervene. He pleaded with Allagoa, “No, don’t do it. Don’t go
4 Curran told the detectives Goudeau picked up several
bricks and was trying to throw them at Allagoa. Curran testified
that he did not recall Goudeau ever successfully hitting Allagoa
with a brick.
5
there. No, no, no.” Although Curran had trouble hearing
generally, he heard Lias clearly. Lias waved his arms, trying to
block Allagoa from shooting Goudeau as if he was defending a
basketball shot. Allagoa waved the gun back and forth trying to
get around Lias. Curran heard a gunshot. He did not see the
actual shooting, however, because a parked suburban was
blocking his view of Goudeau. Allagoa walked out of the parking
lot, but then returned with the gun still in his hand. Curran told
Benedetti to get them out of the parking lot before Allagoa
started shooting witnesses.
In court, Curran identified Allagoa as the person holding
the gun. The day after the killing, Curran identified Allagoa as
the gunman in photograph #1 in a lineup , but then told officers
that the shooter was depicted in either photograph #3 or #5. At
trial, Curran explained that he purposely misidentified Allagoa
because “all kinds of people started closing in on us, listening”
when he was talking to the detectives. He wanted “to take a
target off [his] back.” He identified Allagoa as the shooter at the
preliminary hearing. Curran testified as truthfully as he could in
court. He had recently suffered a head injury. He thought the
head injury “vaguely” affected his memory of the incident; he did
not remember Allagoa pulling the gun out of his pocket and
putting it back several times as he previously stated, but he
remembered everything else clearly.
Bryan Benedetti
Bryan Benedetti was building a block wall with Curran in
the parking lot that abutted Benedetti’s property, when
6
Benedetti heard a loud argument between Goudeau and Allagoa.5
Benedetti was only about 17 feet away from Allagoa and
Goudeau. Benedetti recognized Goudeau and Lias because they
hung out in the parking lot regularly. Initially Benedetti tried to
ignore the fight because fights were common in that area, but
when the argument continued and began to escalate he started
paying attention. Curran told Benedetti that Allagoa had taken
out a gun and said they had better get out of there. Benedetti
agreed that they should leave. Benedetti and Curran got into
Benedetti’s truck and started to pull out.
Allagoa and Goudeau were punching each other and
chasing each other around. Benedetti did not see who threw the
first punch, but he saw “many punches thrown.” Lias got
between the two men and tried to stop the fight. Allagoa
punched Goudeau in the mouth. Goudeau picked up a brick and
threw it at Allagoa. The fight continued after Goudeau threw the
brick. Allagoa punched Goudeau while holding the gun. Then
the gun flew out of Allagoa’s hand.6
Benedetti spun the wheels of his truck to try to distract
Goudeau and Allagoa. As Benedetti pulled out of the parking lot,
5 Benedetti gave thepolice surveillance footage video,
which was played for the jury.
6 Benedetti testified that hewas not able to identify the
object that Allagoa was holding as a gun until it flew out of his
hand. Benedetti told the officers who interviewed him the day
after the shooting that he never saw a gun. At trial, he explained
that he was afraid of being involved in the incident when he
talked to the police.
7
he heard a gunshot. He did not see the shooting because he was
concentrating on driving.
Benedetti identified Allagoa as the man with the gun in a
photographic lineup. He saw Allagoa’s face while standing about
17 feet away from him during the fight.
The Investigation
Los Angeles Police Department Officer Christopher Silva
responded to the scene of the shooting. When he arrived,
Goudeau was conscious and was transported to the hospital. The
hospital later notified Officer Silva that Goudeau had died.
Officers recovered a cell phone, a Luger 9-millimeter bullet
casing, and bricks from the scene.
The deputy medical examiner who conducted Goudeau’s
autopsy testified that Goudeau suffered a single bullet wound to
the upper abdomen, which was recovered from the left side of
Goudeau’s back. There was no soot or stippling, so the shooter
was at least two feet away when he shot Goudeau. Goudeau had
alcohol, marijuana, and ephedrine in his blood. His blood alcohol
level measured .081 at the time of the autopsy.
A firearms examiner testified that the bullet recovered
from Goudeau’s body was fired from a semiautomatic pistol.
Allagoa was arrested on November 23, 2016.
Surveillance Camera Footage
The jury was shown surveillance footage of the fight that
Benedetti provided to the police. The video does not depict the
physical altercation in its entirety, nor does it show the shooting,
8
and it is of low quality and resolution. It depicts Allagoa,
Goudeau, and Lias. Goudeau can be seen throwing his shirt on
the ground and picking it up again. The video shows the start of
the fight, and Allagoa is seen knocking Goudeau to the ground.
Goudeau gets back on his feet and the men continue to fight. At
one point Allagoa appears to be backing away, and Goudeau is
shown picking up something from the ground. All three men
then run behind a parked suburban. The video does not depict
the gun flying from Allagoa’s hand. The continuing fight and the
shooting occur out of view of the camera; though Lias is shown
waving his hands over his head at one point. The video then
depicts Allagoa leaving the scene.
Other surveillance video was obtained from the strip mall
cameras adjacent to the parking lot; the mall videos depict
multiple camera views. The videos show Allagoa in the parking
lot approximately 20 minutes before the fight began. A van is
shown pulling into the parking lot. The driver goes into a store
and when he returns Allagoa gets into the van and they drive
away. Almost 20 minutes later, Allagoa can be seen walking into
the parking lot. He walks directly to a car and stands next to it.
Allagoa then walks past an S.U.V. The video depicts a heavy
object in his right pocket swinging as he walks.
The prosecution also introduced camera footage from a
nearby apartment building that depicts Allagoa departing the
scene.
Facebook and Cell Phone Records
Posts on Allagoa’s Facebook account and data in his cell
phone from the time period between the shooting and arrest
9
indicated that he fled the Los Angeles area and attempted to
obtain a passport to cross the border into Canada. Allagoa’s cell
phone and Facebook posts contained multiple incriminating
messages, indicating that, a few weeks prior to the shooting, he
purchased a 9-millimeter gun matching the caliber of the casing
recovered at the scene, and that he was on the run after the
shooting.
The Jail Incident
Testimony and video evidence was presented that, during
trial, when Allagoa and Lias were both being held in county jail,
Allagoa threatened Lias and told Lias that he should have shot
him.
Defense
Babak Malek, a crime scene reconstruction expert,
enhanced the brightness and contrast of the surveillance videos,
and zoomed in so that Allagoa, Goudeau, and Lias could be more
closely viewed. Based on his review of the enhanced surveillance
video, Babek testified that he observed Lias pointing an object
that resembled a gun at Allagoa, who was backing away. Malek
also saw a brick being thrown at Allagoa.
Malek did not see Allagoa pull anything resembling a gun
from his pocket or waist area, and did not see Allagoa holding an
object resembling a gun. With the exception of a brick, Malek did
not observe any objects flying through the air.
Dr. Mitchell Eisen, a psychologist with an expertise in
eyewitness memory, testified that memory is malleable and can
10
degrade and suffer alteration with the passage of time, receipt of
new information, and other factors.
Defense investigator Michael Howard testified that, in an
interview he conducted, Lias’s description of Allagoa’s location
when Allagoa fired the gun was inconsistent with Lias’s
testimony at trial.
DNA evidence was presented demonstrating that both
Allagoa and Goudeau were likely contributors of DNA on a swab
obtained from a brick located in the planter where Goudeau fell
after he was shot.
DISCUSSION
I. Sufficiency of the Evidence of Premeditation and
Deliberation
Allagoa contends that there was insufficient evidence to
support the jury’s finding that he acted with premeditation and
deliberation. When reviewing for sufficiency of the evidence, we
consider “‘“‘the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’”’ [Citation.]”
(People v. Casares (2016) 62 Cal.4th 808, 823 (Casares),
disapproved of on another ground in People v. Dalton (2019) 7
Cal.5th 166, 214; People v. Clark (2011) 52 Cal.4th 856, 942–943.)
“As a general matter, juries may accept some parts of a witness’s
testimony and reject other parts . . . .” (People v. Collins (2021)
65 Cal.App.5th 333, 345.) “‘Resolution of conflicts and
11
inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.’ [Citations.]”
(People v. Brown (2014) 59 Cal.4th 86, 106.) “‘. . . [I]t is the jury
rather than the reviewing court that weighs the evidence,
resolves conflicting inferences and determines whether the
People have established guilt beyond a reasonable doubt.’
[Citation.]” (Casares, supra, at p. 823.) “Thus, if the verdict is
supported by substantial evidence, we must accord due deference
to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder.” (People v. Jones (1990) 51
Cal.3d 294, 314.)
“In the context of first degree murder, ‘“premeditated”
means “considered beforehand,” and “deliberate” means “formed
or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed
course of action.” [Citation.]’ [Citation.] ‘The process of
premeditation and deliberation does not require any extended
period of time. “The true test is not the duration of time as much
as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be
arrived at quickly . . . .” [Citations.]’ [Citation.]” (People v. Lee
(2011) 51 Cal.4th 620, 636 (Lee).)
In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our
Supreme Court described three types of evidence that indicate
premeditation and deliberation: “(1) facts about how and what
defendant did prior to the actual killing which show that the
defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing—what may be
12
characterized as ‘planning’ activity; (2) facts about the
defendant’s prior relationship and/or conduct with the victim
from which the jury could reasonably infer a ‘motive’ to kill the
victim, which inference of motive, together with facts of type (1)
or (3), would in turn support an inference that killing was the
result of ‘a pre-existing reflection’ and ‘careful thought and
weighing of considerations’ rather than ‘mere unconsidered or
rash impulse hastily executed’ [citation]; (3) facts about the
nature of the killing from which the jury could infer that the
manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way
for a ‘reason’ which the jury can reasonably infer from facts of
type (1) or (2).” (Id. at pp. 26–27; see also People v. Lenart (2004)
32 Cal.4th 1107, 1127 (Lenart).) “[The Supreme Court has]
sustain[ed] verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least
extremely strong evidence of (1) or evidence of (2) in conjunction
with either (1) or (3).” (Anderson, supra, 70 Cal.2d at pp. 26–27.)
“The Anderson factors are not the exclusive means for
establishing premeditation and deliberation.” (Lenart, supra, 32
Cal.4th at p. 1127.)
Analysis
Substantial evidence supports the jury’s finding that
Allagoa murdered Goudeau after premeditation and deliberation.
First, there was evidence from which a jury could reasonably
infer that Allagoa brought a loaded gun to a fistfight, which
suggests planning and conscious choice. Surveillance video
13
depicts Allagoa leaving the parking lot in a van about 20 minutes
prior to the fight. When Allagoa returns to the parking lot, he
immediately walks over to a gray sport wagon and stands next to
it for several minutes. No witnesses testified that they observed
Allagoa with a gun before he left the parking lot in the van, and
the videos do not suggest that Allagoa had a gun until he
returned to the parking lot, when a heavy object can be seen
swinging in the pocket of his shorts in the manner that a gun
would. The jury could reasonably infer from the evidence that
Allagoa retrieved the gun to use it in the fight and “considered
the possibility of a violent encounter” with Goudeau. (Lee, supra,
51 Cal.4th at p. 636.) Evidence that a defendant carried a
murder weapon to the scene of a killing has been held to raise the
reasonable inference “that he considered the possibility of
homicide from the outset.” (People v. Steele (2002) 27 Cal.4th
1230, 1250 [defendant brought knife used to murder victim into
victim’s house].)
Second, Allagoa had several opportunities to reflect and
change course during the altercation, but did not. Lias testified
that prior to the confrontation, he saw Allagoa following Goudeau
into the parking lot, leading to the confrontation between the
men. Once the conflict ensued, but before Allagoa attempted to
shoot Goudeau, Lias physically placed himself between the two
men and pleaded with Allagoa not to harm Goudeau. Lias’s
intervention provided Allagoa time for reflection, but Allagoa was
not deterred. Despite Lias’s pleas, Allagoa tried to fire the gun at
Goudeau unsuccessfully not once, but twice.
When Allagoa pulled the trigger of the gun the first two
times, the gun jammed. Because the gun was a semi-automatic,
Allagoa had to clear the chamber and then rack the gun to load a
14
new bullet before he could attempt to fire again. Allagoa was in a
position to walk away from the fight. Allagoa and Goudeau were
not in the throes of a physical altercation when Allagoa cleared
the gun’s chamber; Lias was still between them shielding
Goudeau from the gun. Allagoa had control of the situation. He
had time to think about whether he wanted to kill Goudeau as he
prepared to fire again.
Although Allagoa and Goudeau struggled over the gun
before Allagoa pulled the trigger a third time, resulting in the
fatal shot, Curran observed that Allagoa was approximately 20
feet away from Goudeau. Allagoa had enough distance between
himself and Goudeau to remove himself from the fight, and with
a bullet chambered he had the means to protect himself
immediately if Goudeau approached him too closely; instead he
chose to take the third shot from a distance. The jurors could
reasonably infer from these facts that Allagoa considered his
actions multiple times during the altercation and made a
conscious decision to shoot and kill Goudeau. Substantial
evidence supports the jury’s premeditation and deliberation
finding.
II. Continuity of Legal Representation at Trial
Allagoa next argues that his constitutional rights were
violated because his case was tried by multiple attorneys who
were not present for the entire trial. At the time proceedings
began in this case, Allagoa’s counsel Alana Yakovlev was in the
advanced stages of pregnancy. Natalie Lowis, a newly sworn in
associate, assisted Yakovlev and other senior attorneys
throughout the proceedings. Yakovlev was due to deliver her
15
baby during trial, and informed the court that in the event that
she went into labor her colleague Louis Kosnett would be ready
and available to take over the case. Yakovlev assured the court
that Kosnett would be apprised of all evidentiary rulings made in
his absence. Allagoa expressly agreed to have another attorney
take over the case.7 Prior to the presentation of evidence, the
trial court advised the jury that Yakovlev, Kosnett, and Lowis
would all be representing Allagoa due to Yakovlev’s pregnancy:
“Mr. Allagoa . . . is represented by three attorneys. And
when you see Ms. Yakovlev stand up, you’ll know why. Her due
date is around December 20th. But there are other counsel that
will step right in. They’re going to probably be participating in
these proceedings as we go on anyway. So Ms. Yakovlev is
representing Mr. Allagoa. Also Natalie Lowis, sitting at counsel
table, is also representing Mr. Allagoa. And Mr. Louis Kosnett is
representing Mr. Allagoa. Thank you so much.
“And by their vast numbers, it doesn’t mean anything
about the case. It’s just because, number one, I just swore Ms.
Lowis in. So she’s a very young attorney. But she’s very smart
and she’s been practicing for a while but not licensed. So she’s
here and she knows a lot about this case. And Mr. Kosnett I
haven’t seen before today, but he’s here. So I don’t want you to
assume that the case is more serious than it would be just
because the defendant has a lot of attorneys. Okay?”
7 In a pre-trial hearing, the trial court stated: “[Ms.
Yakovlev] you are quite pregnant and you have maintained that
there is another attorney ready, willing, and able to take over. I
want to get a waiver of your client that that’s okay with him. [¶]
Is that okay with you, Mr. Allagoa?” Allagoa responded, “Yes,
your honor.”
16
Yakovlev appeared on all five days of pre-trial proceedings
and on seven and a half of the twelve days of trial. She delivered
her baby near the end of the trial, but then returned to make the
closing argument to the jury. Kosnett appeared in court on nine
and a half days of the trial, and appeared for some of the pre-trial
proceedings as well. On December 23rd, the day that Yakovlev
gave birth, neither she nor Kosnett could appear in court. Shirin
Buckman, a senior attorney who attended Allagoa’s preliminary
hearing and was familiar with the case, appeared in their stead.
Lowis assisted all three senior attorneys throughout the
proceedings and appeared on all but one day of the trial. Lowis
conducted examinations of multiple witnesses, but she was
always supervised by a senior attorney in court.
Analysis
Attorney Experience and Continuity
Allagoa first complains regarding his representation by
Lowis and the alleged lack of continuity in his legal
representation. Allagoa contends that Lowis, the newly sworn-in
attorney who lacked the necessary experience, tried his case by
default. He argues that it was not anticipated that she would
represent him in that capacity, and that the trial court went so
far as to advise the jury that Lowis was too young to try the case.
Allagoa asserts that the lack of continuity in his representation
combined with the fact that Lowis acted as the lead attorney
conveyed to the jury that his counsel was not committed to his
case.
17
Allagoa’s characterization of Lowis’s role in the trial and
the trial court’s assessment of Lowis’s competence is inaccurate.
The trial court’s advisement to the jury demonstrates that the
court expected Lowis to participate in trying the case, and was
confident in her abilities. The court stated that Lowis was smart,
and knew the case well. The court told the jury that Lowis would
not be trying the case alone because she was less experienced
than the other attorneys representing Allagoa, but that she
would be participating in the trial along with Yakovlev and
Kosnett. This is exactly what occurred. Lowis appeared
regularly and examined multiple witnesses, but she was always
supervised by a more senior attorney when she did so. 8
Moreover, the trial court’s early explanation regarding
Allagoa’s representation avoided any confusion on the part of the
jury as to Allagoa’s attorneys’ commitment to his case. The jury
knew that there would be a change in representation when
Yakovlev went into labor. The jurors were advised that her
absence would be due to medical necessity; they would not have
8 Allagoa argues that he did not consent to the mid-trial
substitution of Lowis as his attorney as required by Code of Civil
Procedure sections 284 and 285, and did not make an informed
and intelligent decision to have Lowis represent him. He also
argues that the trial court should have advised him and protected
him from the dangers of having an inexperienced lawyer act as
the lead attorney in his case. We need not address these
arguments in light of the fact that Lowis did not assume the role
of lead attorney. She was supervised by a more senior attorney
throughout the trial, as Yakovlev had assured the court that she
would be. If Lowis held the position of lead attorney, both
Kosnett’s and Buckman’s participation would have been
unnecessary in Yakovlev’s absence.
18
inferred that Yakovlev (or Allagoa’s other attorneys) lacked
commitment to Allagoa’s case as Allagoa alleges. To the
contrary, Yakovlev demonstrated personal commitment to
Allagoa’s defense—she returned to give the closing statement on
Allagoa’s behalf, despite the fact that she had given birth only
two weeks earlier and Kosnett was available and prepared to
make closing arguments in her stead. Finally, the court’s remark
about Lowis’s level of experience was part of its explanation to
the jury as to the number of attorneys on Allagoa’s team,
ensuring that there was no inference drawn that his case
required an unusually large legal team.
Ability to Argue Witness Credibility
Allagoa contends that Yakovlev’s absence for several days
of trial prior to returning to make the closing argument to the
jury prevented her from representing him effectively in
argument. He asserts that, having missed several days of trial,
Yakovlev was incapable of competently assessing and arguing
witness credibility, and Curran’s credibility in particular.
The transcript of Yakovlev’s closing arguments belies this
contention. Yakovlev argued that none of the prosecution’s
witnesses accurately testified regarding the events that occurred,
and that, most importantly, their recollections contradicted what
the video recordings showed:
“[N]ot only do the witness testimonies not add up, they
don’t match up with the objective evidence in this case, which is
the video. [¶] [¶] [¶] . . . You can see a brick being thrown. You
don’t think an object such as a gun being thrown would be
depicted in the video? Especially given the witness’s version of
19
the events, that it went across the parking lot and, according to
Mr. Curran, it landed in the middle where the gate was, where
the gate began on the other side of the parking lot. That’s still
within the purview of the camera. That still would have been
captured on the camera.”
Yakovlev posited that Curran’s memory was unreliable
because he and Benedetti had discussed the case prior to
testimony and, as a result, had formed false memories and
corroborated each other’s statements despite not having
independently consistent recollections, as the defense’s memory
expert testified often occurs.
Yakovlev emphasized that “. . . Mr. Curran admitted he
had very bad eyesight. The conditions were dark. . . . Mr. Curran
also admitted that he thought he saw a cell phone when he saw
something being thrown. He admitted he did not see the
shooting.
“So what really happened? How about the I.D.? This is the
best part. Mr. Curran immediately after the incident was shown
a lineup, a photographic lineup. He did not choose Mr. Allagoa.
He picked two fillers. ‘Fillers’ are other people that they try to
disguise to make sure that there’s an accurate identification. He
chose number 3 and number 5. He couldn’t make a choice.
Guess what? The police didn’t retain this document. It wasn’t
convenient for them to do so. It wasn’t helpful to their case
because, when a person fails to make a positive identification,
clearly, that’s not helpful for their case; so they destroyed this
document. Subsequently, a year and a half later, 18 months, not
only does Mr. Curran miraculously I.D. [the defendant], he
remembers what number it was. ‘It was number 1.’ How
20
awesome? A sudden drip of clarity. Speculation, speculation,
speculation.”
Yakovlev summarized: “Mr. Curran has bad eyesight. He
doesn’t remember. He’s all over the place. His memory has
failed.” She concluded: “You don’t have to be bound by their
wiggly-wobbly version of what is just mere speculation and
conjecture. It’s not reasonable for you to do so.”
In an attempt to undermine the fact that Yakovlev devoted
significant time arguing credibility in her statement to the jury,
Allagoa contends that courts have held it is impossible for
counsel to effectively argue regarding credibility if counsel was
not present to observe a witness’s testimony. Allagoa first
analogizes his case to People v. Manson (1976) 61 Cal.App.3d 102
(Manson). In Manson, co-defendant Van Houten’s trial counsel
failed to appear after the parties had rested their cases, but
before the trial court ruled on submitted jury instructions and the
attorneys made closing statements. (Id. at p. 197.) The court
appointed new trial counsel to represent Van Houten, over Van
Houten’s objection. (Ibid.) Prior to closing statements, Van
Houten’s counsel moved for a mistrial, arguing that his absence
during witness testimony made it impossible for him to
effectively argue regarding the witnesses’ credibility. (Id. at p.
198.) The trial court denied the motion. (Ibid.)
The Court of Appeal held that trial counsel’s representation
of Van Houten was ineffective, citing the observations of the trial
court made in another context earlier in the trial: “‘It would
undoubtedly place an undue burden on any counsel coming into
the case. At this date the trial has been in progress for five
months; the transcript is in excess of 18,000 pages, and it would
be a terrible burden to bring a new attorney into the case and
21
expect him to adequately and effectively represent anyone for the
remainder of the trial.’” (Manson, supra, 61 Cal.App.3d at p.
200.) The appellate court held that counsel was incapable of
arguing credibility in light of the circumstances, and that the
disappearance of Van Houten’s first attorney after the
submission of all evidence severely interrupted the continuity of
representation necessary to a fair trial. (Ibid.)
Allagoa argues that, in People v. Clark (2011) 52 Cal.4th
856 (Clark), our Supreme Court approved the Court of Appeal’s
opinion in Manson, stating that “counsel’s summation was
constitutionally inadequate . . . [H]aving had no opportunity to
observe the demeanor of the many witnesses at trial, he could not
effectively argue the significant issue of credibility during closing
remarks.” (Id. at p. 991.) Allagoa neglects to mention that the
Supreme Court subsequently distinguished Manson from the case
before it: “We conclude that the extreme circumstances
presented in Manson are easily distinguishable from this case.
In Manson, the timing of counsel’s substitution after the
presentation of evidence was ‘truly crucial.’ (People v. Manson,
supra, 61 Cal.App.3d at p. 203, fn. 102.) By contrast here,
[defense counsel] joined the defense team shortly after
commencement of the prosecution’s case-in-chief and observed
the testimony of most of the prosecution witnesses . . . . Further,
he was assisted by [co-counsel], who was present for all of the
guilt phase testimony. The trial court did not abuse its discretion
in denying the mistrial motions in the present case.” (Clark,
supra, 52 Cal.4th at p. 991.)
Allagoa also relies on In re Rodriguez (1981) 119
Cal.App.3d 457 (Rodriguez), arguing that “‘[t]he abandonment of
Allagoa by Ms. Yakovlev without a contingency plan was
22
misconduct which ‘transcends typical claims of incompetence.’
[Citation.]” In Rodriguez, the defendant filed a writ for habeas
corpus alleging that he was deprived of a fair trial due to the
combination of his counsel’s deficiencies and the prosecutor’s
misconduct. (Id. at p. 464.) Rodriguez submitted the declaration
of his second attorney, Smallwood, which detailed the situation.
The declaration averred that Smallwood was admitted to practice
approximately two months prior to appearing at Rodriguez’s trial
with DeVilbiss, the attorney who Rodriguez hired to try the case.
Because Smallwood was inexperienced, he and DeVilbiss agreed
that he would assist by conducting legal research only. (Id. at p.
465.) “When DeVilbiss did not show up for trial . . . [Rodriguez]
agreed that the trial would proceed with Smallwood as counsel.
Rodriguez was not aware that Smallwood had no trial experience,
and Smallwood did not tell him. [¶] [Two days later,] DeVilbiss
phoned Smallwood to say he did not intend to participate further
in the trial. Smallwood told [Rodriguez] that DeVilbiss was
withdrawing from the case, but did not inform him of the
possibility of moving for mistrial or requesting a further
continuance to obtain an experienced trial lawyer. He assumed
that because he was cocounsel of record he had no choice but to
carry on alone. [¶] Smallwood then proceeded to represent
[Rodriguez] when trial recommenced [the next day]. [That]
evening . . . , DeVilbiss agreed to return to make closing
argument, provided the matter were [sic] continued [by several
days]. The trial court granted a continuance. Smallwood and
DeVilbiss did not, however, consult about the trial during the
intervening weekend and they discussed the evidence of 5
prosecution witnesses who testified during DeVilbiss’ absence for
23
no more than 10 or 15 minutes before he presented his argument
to the jury.” (Ibid.)
The Court of Appeal catalogued the prosecutor’s
misconduct in Rodriguez’s case: the prosecutor cast aspersions
on defendant and defense counsel at the preliminary hearing,
commented on Rodriguez’s failure to testify to the jury (which it
classified as “‘blatant’” Griffin9 error), improperly inquired
regarding a police officer witness’s experience with defense
counsel tactics, elicited an expert medical witness’s opinion of
Rodriguez’s guilt, and elicited a psychologist witness’s opinion of
the victim’s credibility. (Rodriguez, supra, 119 Cal.App.3d at pp.
467–469.) The Court of Appeal concluded that due to the
combination of Rodriguez’s attorneys’ conduct at trial, the
prosecutor’s misbehavior, and the trial court’s inability to control
the proceedings, “the net result was that the trial was turned into
something of a circus, complete with sideshows, disappearing
acts, clowning, and tricks which could only divert the jury’s
attention from the serious business of determining guilt or
innocence in accordance with proper standards.” (Id. at p. 467.)
Accordingly, it reversed the judgment. (Id. at p. 470.)
The conduct of defense counsel in Allagoa’s case is easily
distinguishable from both Manson and Rodriguez. First, Allagoa
was not abandoned without a contingency plan. Prior to the
commencement of trial, Yakovlev anticipated the very likely
event that she might give birth during the trial, and she put in
place a sensible plan for representation of Allagoa; indeed,
Allagoa expressly consented to that plan. In contrast, neither
Van Houten nor Rodriguez had any notice that their attorneys
9 Griffin v. California (1965) 380 U.S. 609, 615.
24
might not represent them for the entire trial, let alone that there
was a high probability of that occurring.
Second, there was a significant lapse in continuity in Van
Houten’s trial; Van Houten’s first attorney failed to appear in
court without warning, and her second attorney was appointed
without the benefit of any prior familiarity with the case. New
counsel had to rely entirely on the 18,000-page record of a five-
month trial to assess the witnesses’ credibility. Rodriguez’s
counsel also failed to appear at trial without notice, leaving an
inexperienced attorney to try the case alone. In contrast, Allagoa
was represented by a team of attorneys who coordinated on his
case from the outset, and had familiarity with the proceedings
through personal observation of the trial, which spanned 12 days.
Both Yakovlev and Kosnett were present for most of the trial.
There was a single day—the day that Yakovlev gave birth—upon
which neither Yakovlev nor Kosnett was present. However, on
that day Buckman, an experienced attorney who attended
Allagoa’s preliminary hearing, appeared as counsel along with
Lowis. Lowis was present for all but one day of the proceedings
and assisted all three senior attorneys, who had the benefit of her
observations and impressions. Whereas Allagoa’s attorneys were
able to share their first-hand knowledge of the trial, Van
Houten’s counsel was forced to go into closing statements cold,
without the benefit of either personal familiarity with the trial or
the experience of colleagues to draw upon. Rodriguez’s second
attorney, who had practiced for less than a year, conducted his
first trial without assistance.
Third, unlike counsel in Manson and Rodriguez, all of
Allagoa’s attorneys, with the exception of Buckman, attended
large portions of the trial, and personally observed and
25
participated in the proceedings. Van Houten’s second attorney
had not been present for any witness testimony and had not
personally observed the jury. Rodriguez’s original attorney
returned to deliver closing arguments without appearing for a
single day of trial or consulting with trial counsel for more than
15 minutes.
Finally, none of Allagoa’s attorneys raised any concerns
that they were unable to represent Allagoa competently. If there
were such concerns, they could have been raised in a motion for
new trial, in declarations in other post-trial proceedings, or
otherwise expressed to the court. The court stated it was
frustrated on one occasion—the day that Yakovlev gave birth and
Buckman finished examining a witness that Yakovlev had begun
examining the day before. The court admonished Lowis for
failing to properly advise Buckman of its rulings as to that
specific witness. The court stated that it would be appropriate
for Buckman to question a new witness, but that it “was
frustrating for the court that I have to go over all the rulings
again” with regard to the witness Yakovlev had questioned the
day before. The court did not indicate Buckman’s examination of
the witness was detrimental to Allagoa, and Allagoa does not
allege that he suffered prejudice as a result.
Ability to Argue Heat of Passion
In closing arguments, Yakovlev painted Goudeau as the
aggressor, and argued that Allagoa acted in self-defense or in
imperfect self-defense. Allagoa contends that Yakovlev’s absence
from trial prior to making closing statements caused her to
overlook making the argument in closing that he had acted in the
26
heat of passion and was guilty only of manslaughter. We reject
this contention as well.
“Heat of passion is a mental state that precludes the
formation of malice and reduces an unlawful killing from murder
to manslaughter. Heat of passion arises if, ‘“at the time of the
killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily
reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather
than from judgment.”’ [Citation.]” (People v. Beltran (2013) 56
Cal.4th 935, 942, fn. omitted (Beltran).)
“A killing committed under the unreasonable but good faith
belief in the need to act in self-defense is a killing done without
malice and also constitutes voluntary manslaughter.” (Beltran,
supra, 56 Cal.4th at p. 942, fn. 3.) A killing committed in the
reasonable good faith belief in the need to act in self-defense
absolves liability for murder and manslaughter. (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082.)
“A criminal defendant’s federal and state constitutional
rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15) includes the right to effective legal assistance.” (People v.
Mai (2013) 57 Cal.4th 986, 1009, italics omitted (Mai).) To
establish ineffective assistance of counsel, “the defendant must
first show counsel’s performance was deficient, in that it fell
below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different.” (Ibid.) “‘“A reasonable probability is a
27
probability sufficient to undermine confidence in the outcome.”
[Citation.]’ [Citation.]” (In re Jones (1996) 13 Cal.4th 552, 561.)
“When examining an ineffective assistance claim, a
reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance . . . . [A] conviction will be
reversed for ineffective assistance only if (1) the record
affirmatively discloses counsel had no rational tactical purpose
for the challenged act or omission, (2) counsel was asked for a
reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009.)
“If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be
followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697.)
Here, counsel was not asked for an explanation. The jury
was instructed on Justifiable Homicide: Self Defense (CALCRIM
No. 505), Voluntary Manslaughter: Imperfect Self-Defense
(CALCRIM No. 571), and Voluntary Manslaughter: Heat of
Passion (CALCRIM No. 570). A competent attorney could make a
reasonable tactical choice to focus on self-defense and imperfect
self-defense rather than arguing that Allagoa acted in the heat of
passion.
The facts in Allagoa’s case arguably lent greater support to
the theory that he acted in self-defense, whether perfect or
imperfect, than in the heat of passion. As Allagoa himself
pointed out in his opening brief, “[t]he record does not establish
what occurred before the fight that led to the shooting, or why
[Allagoa and Goudeau] were fighting. Whatever inference might
be drawn from the record’s silence would rest on sheer
speculation.” There is simply no way of discerning what Allagoa
28
and Goudeau were arguing about from the evidence presented,
let alone whether the argument would cause a rational person to
react rashly without reflection.
The only evidence to support a heat of passion theory was
that Goudeau (1) threw down his shirt and (2) threw a brick at
Allagoa. A reasonable person would not react rashly simply
because another person threw his shirt on the ground.
Additionally, even if we assume that an ordinary person would
react rashly and without reflection if a brick was thrown at them,
there was conflicting testimony as to whether Goudeau threw the
brick before or after Allagoa pointed the gun at him, which casts
doubt as to whether Allagoa was reacting to Goudeau or acting as
the aggressor.
Given the state of the evidence, counsel could reasonably
conclude that the jury would be more likely to find that Allagoa
acted in self-defense. It was undisputed that Allagoa shot
Goudeau immediately following a struggle over the gun. A jury
could conclude that Allagoa feared for his life and shot Goudeau
because he believed that if he did not, Goudeau might instead
overpower him, take the gun, and shoot him. Such a conclusion
would result in either a full acquittal or a conviction for
manslaughter, depending on the reasonableness of Allagoa’s
belief. Counsel could reasonably decide that focusing on
Goudeau’s irrational anger in the midst of the altercation would
detract from these other, potentially more viable, defenses.
Additionally, Goudeau cannot show prejudice. The jury
was instructed under CALCRIM No. 570 that: “A killing that
would otherwise be murder is reduced to voluntary manslaughter
if the defendant killed someone because of a sudden quarrel or in
the heat of passion. [¶] The defendant killed someone because of
29
a sudden quarrel or in the heat of passion if: [¶] 1. The defendant
was provoked; [¶] 2. As a result of the provocation, the defendant
acted rashly and under the influence of intense emotion that
obscured his reasoning or judgment; [¶] AND [¶] 3. The
provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is, from passion
rather than from judgment.”
The court further instructed the jury regarding first degree
murder under CALCRIM No. 520: “The defendant is guilty of
first degree murder if the People have proved that he acted
willfully, deliberately, and with premeditation. The defendant
acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and
against his choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill
before completing the act that caused death. . . . [¶] . . . A decision
to kill made rashly, impulsively, or without careful consideration
is not deliberate and premeditated. On the other hand, a cold,
calculated decision to kill can be reached quickly. The test is the
extent of the reflection, not the length of time.”
To find Allagoa committed premeditated and deliberate
murder, the jury had to consider and reject the possibility that he
acted in the heat of passion beyond a reasonable doubt. (People v.
Lopez (2020) 46 Cal.App.5th 505, 525 (Lopez) [“Jurors are
presumed to follow the instructions they are given”].) Allagoa
cannot demonstrate prejudice.
30
Prejudice
Finally, Allagoa contends that, in light of the fact that the
alleged deficiencies at trial were the result of the lack of
continuity in his representation, he need not demonstrate
prejudice. Allagoa argues that reversal is constitutionally
compelled under Manson, Clark, Rodriguez, and United States v.
Cronic (1984) 466 U.S. 648 (Cronic). These cases do not support
his assertion. As is clear from our discussion of Manson and
Rodriguez above, both defendants suffered significant prejudice.
In Clark, the court distinguished Manson, and affirmed the
judgment. (Clark, supra, 52 Cal.4th at p. 1008.) In Cronic, the
United States Supreme Court reversed the Court of Appeals’
judgment because the respondent did not “demonstrate that
counsel failed to function in any meaningful sense.” (Cronic,
supra, 466 U.S. at p. 666.) In short, Allagoa points to no cases in
which a court held that counsel was ineffective without a showing
of prejudice. The contention is without merit.
III. Ineffective Assistance of Counsel Related to Evidence
Obtained From The Search of Allagoa’s Cell Phone
Officers seized Allagoa’s cell phone when they arrested him
on November 23, 2016, but police did not obtain a warrant to
search the contents of the phone until April 28, 2018. As relevant
to Allagoa’s arguments here, the cell phone contained evidence of
his flight after the shooting, as well as several incriminating
internet searches made between the date of the murder and the
date of his arrest, all of which were admitted at trial. Allagoa
argues that his counsel was ineffective for: (1) failing to timely
31
move to suppress the cell phone evidence on the ground that law
enforcement’s delay in seeking a warrant to search the phone was
unreasonable; and (2) failing to object to the internet searches
relating to Allagoa’s interest in retaining an attorney on the
specific ground that their admission impinged on his
constitutional right to counsel.
Allagoa contends that he was prejudiced by admission of
evidence of his flight and several internet searches—including
“‘Hawthorne shooting,’” “‘a good attorney,’” a lawyer for “‘a
felony’”, “‘how do police tap your phone,’” as well as “‘how to beat
a murder case’”—which he argues were powerful evidence of
consciousness of guilt, as demonstrated by the fact that the
prosecutor focused on this evidence in closing argument.
Allagoa has failed to establish prejudice. It was
uncontested that Allagoa shot and killed Goudeau. The only
issue was his intent in doing so. While the evidence of his flight
and the internet searches arguably demonstrated consciousness
of guilt, they were not probative of premeditation and
deliberation, which the jury found beyond a reasonable doubt.
The jury necessarily based its premeditation finding on the
evidence that we discussed in Section I of this opinion, as nothing
Allagoa did after the shooting (evidenced by the material
contained in his cell phone) suggested that he decided to kill after
careful thought and weighing of the considerations for and
against killing. Given the strong evidence that Allagoa killed
Goudeau and acted with premeditation and deliberation, it is not
reasonably probable that the outcome of the proceedings would
have been different if the flight and internet search evidence had
been suppressed or excluded. Allagoa has not met his burden of
demonstrating ineffective assistance of counsel.
32
IV. Alleged Prosecutorial Misconduct
“‘Under California law, a prosecutor commits reversible
misconduct if he or she makes use of “deceptive or reprehensible
methods” when attempting to persuade either the trial court or
the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would
have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” [Citations.] [¶] “‘[A] defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety. [Citation.]’”’ [Citation.] A defendant
who fails to object at trial ‘waive[s] any error or misconduct
emanating from the prosecutor’s argument that could have been
cured by a timely admonition.’ [Citation.]
“‘“‘[In closing statements,] the prosecution has broad
discretion to state its views as to what the evidence shows and
what inferences may be drawn therefrom.’” [citation.] . . . .’
[Citation.] ‘When we review a claim of prosecutorial remarks
constituting misconduct, we examine whether there is a
reasonable likelihood that the jury would have understood the
remark to cause the mischief complained of. [Citation.]’
33
[Citation.] ‘To prevail on a claim of prosecutorial misconduct
based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer”
that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.’
[Citation.]” (People v. Spector (2011) 194 Cal.App.4th 1335,
1402–1403.)
Analysis
Allagoa complains that the prosecutor committed
misconduct by (1) insinuating that he had evidence of Allagoa’s
motive for killing Goudeau that was not presented at trial, (2)
arguing that Allagoa retrieved a gun shortly before the shooting
based on speculation unsupported by the evidence, (3) mis-stating
the prosecution’s burden of proof beyond a reasonable doubt, (4)
arguing that Allagoa’s exercise of his right to counsel proved his
guilt, and (5) improperly commenting on Allagoa’s decision not to
testify at trial.
Allagoa concedes that his counsel did not object to the
alleged misconduct at trial, but argues that his counsel provided
ineffective assistance by failing to object.
In all but one instance—the prosecutor’s argument
regarding Allagoa’s exercise of the right to counsel—we conclude
that the prosecutor’s remarks did not amount to misconduct,
because the jury would not have construed the remarks in the
manner Allagoa claims. As to those instances, it necessarily
follows that Allagoa waived the objections and that counsel did
34
not provide ineffective assistance: there was no harm to cure, and
Allagoa suffered no prejudice.
With respect to Allagoa’s claim that the prosecutor’s
comments on his exercise of the right to counsel were
inappropriate and prejudicial, we conclude that the remarks
constitute misconduct, but that any harm could have been cured
by an admonition, and that counsel could have had a reasonable
tactical reason for not objecting in closing arguments.
Statements Regarding Motive
In her closing statement, defense counsel argued that
Allagoa had no motive to murder Goudeau: “[W]here’s the
evidence? You’re doing mere guesswork. Where’s the person
from the van? Why aren’t they on the stand?”
In rebuttal, the prosecutor responded: “One thing that
[defense counsel] said, she said, ‘we don’t even know what the
motive was.’ There’s a jury instruction about that. I wish I could
stand here and tell you why. And I have my own reasons, but the
law doesn’t allow me to just spout out what I think happened
unless it comes out in testimony. I’m not allowed to do that.
“The fact of the matter is we know these two guys wanted
to fight, and we know defendant brought a gun to the fight.
Whatever the reason -- what possible justification could there be
for someone -- right? -- it doesn’t justify it. It maybe helps us to
answer some questions, but you are not required to understand
why he wanted to kill [Goudeau]. All you’re asked to do is rule on
the evidence.” (Italics added.)
Allagoa contends that the prosecutor’s statements (as
indicated in italics) intimated that the prosecutor had personal
35
knowledge of Allagoa’s guilt that was not based upon the
prosecutor’s legitimate inferences from the record, in violation of
Allagoa’s constitutional right to confront witnesses.
We cannot conclude that the jury would have understood
the prosecutor to mean that he had evidence beyond the record
that proved Allagoa had motive to kill, and that the jury should
rely on this unidentified extra-record evidence to find Allagoa
guilty. The prosecutor’s remarks informed the jury that,
although the prosecutor would have liked to argue that Allagoa
had a motive to kill Goudeau, he could not “just spout out” his
own opinions without basis to support them in the record. The
prosecutor further explained that he did not have to prove motive
for the jury to find Allagoa guilty of murder, and he advised the
jury that it could verify the rules regarding motive in the
instructions. The prosecutor did not violate Allagoa’s right to
confront witnesses by impermissibly placing statements of a
witness who was unavailable for cross-examination before the
jury.10
10 The law upon which Allagoa relies does not support his
argument that a prosecutor who indicates that he may have his
own opinions based on unidentified evidence outside of the record
commits misconduct that amounts to a violation of the
constitutional right to confrontation. In People v. Bell (1989) 49
Cal.3d 502, the prosecutor deliberately introduced inadmissible
and prejudicial evidence by reading a police report into the record
over defense counsel’s sustained objection, in the course of
examining an expert witness. The Supreme Court held that the
statements constituted “particularly egregious [misconduct]
because the prosecutor put before the jury the hearsay statement
of a person who was not available for cross-examination, and that
statement suggested that defendant not only possessed a weapon
like that believed to have been used by the murderer, but was
36
Inference that Allagoa Retrieved the Gun Just Prior to
the Shooting
In his closing statement, the prosecutor commented that it
would be reasonable to conclude that Allagoa retrieved a gun
when he left the parking lot in the van or when he walked over to
the gray sport wagon right after he returned to the parking lot.
This was a fair comment on the evidence. As we discussed in
Section I, none of the witnesses testified to seeing a gun before
the fight broke out. The video depicts Allagoa with a heavy object
swinging in his pocket only after he returned to the parking lot
and walked away from the sport wagon. With no evidence that
Allagoa had a gun before he left the parking lot and both (1)
eyewitness testimony that he possessed and used a gun after
returning to the parking lot and (2) video showing an object
consistent with Allagoa having a gun in his pocket after
returning to the parking lot, it is a reasonable inference that
Allagoa obtained the gun either when he left the parking lot in
the van or retrieved it from the sport wagon immediately after he
returned. The prosecutor’s comment was not inappropriate. (See
People v. Hamilton (2009) 45 Cal.4th 863, 928 [prosecutors have
wide latitude during argument, and may be vigorous as long as it
amounts to fair comment on the evidence].)
cleaning it on the eve of the robbery/murder.” (Id. at p. 533.)
Here, the prosecutor did not read specific inadmissible
statements into the record in contravention of a trial court’s
explicit ruling. The cases are simply not comparable.
37
Articulation of the Beyond a Reasonable Doubt
Standard
In closing arguments, the prosecutor stated:
“[A]pply the evidence to the law and follow the law. That’s
it. You’ve got those instructions. You can take them back.”
***
“[Beyond a reasonable doubt is] [a]n abiding conviction [in
the defendant’s guilt]. Here’s what I can tell you about reasonable
doubt. It’s the exact same standard that’s used in every criminal
case that’s tried in this country. It’s been around since long before
all of us were born, and it’s probably going to be around long after
we’re all gone. That is the standard. [¶] Here’s what we know.
You have to be reasonable. Right? It’s the fundamental word in
that description. Be reasonable. What is reasonable under the
circumstances? The other thing I want you to keep in mind, part
of that instruction, ‘Everything in life is open to some possible or
imaginary doubt.’ We can imagine things that could have
happened. But what we have to do is rely on evidence to draw
conclusions. And if the evidence doesn’t prove something, that’s
okay. Right? But you can’t speculate about what might have
happened. You have to look at the evidence . . . [N]ot what I say,
not what [defense counsel] says. [¶] . . . And if you can draw two
conclusions, one that points toward innocence and one that points
toward guilt, you have to choose the one that points to innocence.
[¶] . . . [But] that conclusion has to be reasonable.” (Italics
added.)
Allagoa argues that, in the italicized portion of the
comments quoted above, the prosecutor misstated the
prosecution’s burden of proving guilt beyond a reasonable doubt
38
by telling the jury that it could find him guilty based on a
reasonable view of the evidence.
Viewed in context, we cannot conclude that the jury would
have misunderstood the beyond a reasonable doubt standard
based on the prosecutor’s arguments. First, the prosecutor
reminded the jury that the trial court’s instructions controlled,
not the attorneys’ arguments. Second, the prosecutor quoted the
correct definition of the beyond a reasonable doubt standard from
the instruction—“[a]n abiding conviction”. Third, in the
challenged portion of his statements, the prosecutor argued only
that the jury could not find Allagoa innocent on the basis of
speculation, not that the jury must find him guilty if that was a
reasonable conclusion, regardless of whether there was a
contrary reasonable conclusion. Fourth, the prosecutor correctly
stated that if there were two reasonable conclusions to be drawn,
the jury was bound to draw the one favoring innocence.
Additionally, defense counsel devoted considerable time to
the standard and stated it clearly and correctly in closing
argument: “Beyond a reasonable doubt is an abiding conviction
that the charge is true.”
Finally, the trial court correctly instructed the jury on the
beyond a reasonable doubt standard under CALCRIM No. 220,
and instructed the jury to ignore any contrary argument by
counsel under CALCRIM No. 200. We presume that the jury
understood the trial court’s instructions and followed them as
given. (Lopez, supra, 46 Cal.App.5th at p. 525.)
39
Comments Relating to Allagoa’s Decision to Retain
Counsel
Allagoa argues, and the People concede, that the
prosecution’s assertion in closing argument that his internet
search of the phrase “‘How much does a good attorney cost?’” was
the kind of question “that a guilty person asks” amounted to
misconduct. We agree. It is well established that comment on a
person’s decision to exercise the constitutional right to
representation by counsel penalizes that right and is prohibited.
(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 64–65.)
However, if counsel had timely objected, any prejudice
could have been cured by an admonishment and/or appropriate
instruction by the trial court that the prosecutor’s comment on
defendant’s constitutional right to counsel was improper and
should be disregarded. This was not a case where identity was at
issue. It was uncontested that Allagoa shot Goudeau and that
Goudeau died as a result of that gunshot wound. The only
question was whether Allagoa was justified in shooting Goudeau
or whether his reason for shooting him (self-defense, imperfect
self-defense, or heat of passion) mitigated his culpability. Under
the circumstances, it would be reasonable for anyone to seek legal
representation, regardless of guilt, which the trial court could
have explained to the jury. Because he failed to object and the
error was curable, Allagoa forfeited the contention.
Moreover, we cannot say that counsel was ineffective for
failing to object on this record. As we have explained, this is not
a case in which the danger of prejudice due to the remarks was
great, and “‘the decision . . . whether to object to comments made
by the prosecutor in closing argument is a highly tactical one.’”
40
(People v. Johnsen (2021) 10 Cal.5th 1116, 1165.) Defense
counsel may reasonably decide to rely on his or her own
counterarguments rather than objecting to the prosecutor’s
comments in closing statements. (Id. at p. 1166.) Although
defense counsel did not have the opportunity to explain her
decision in this case, it appears that this was the tactical decision
she made.
In response to the prosecutor’s remarks, defense counsel
told the jury that Allagoa was very young when the shooting
occurred and that he was scared. Counsel explained that Allagoa
was arrested after he elected to return to Los Angeles of his own
accord. She argued: “The internet searches presented by the
District Attorney regarding hiring a lawyer, regarding police
tactics, how to beat a criminal charge shows that he was looking
to participate in the justice system head-on rather than escape
it.”
Considering that the numerous other incriminating
internet searches Allagoa made—including “‘how strict is the
Canadian border on warrants,’” and “‘how to beat a murder
case’”—could permissibly be used against him, a strategy that
encompassed all of Allagoa’s potentially incriminating searches
was a reasonable tactic. Counsel did not provide ineffective
assistance.
Comments That Allagoa Failed to Call Available
Witnesses
Finally, Allagoa claims that the prosecutor improperly
referred to his failure to testify in closing argument. “‘[T]he Fifth
Amendment . . . forbids either comment by the prosecution on the
41
accused’s silence or instructions by the court that such silence is
evidence of guilt.’ (Griffin v. California (1965) 380 U.S. 609, 615.)
The prosecutor’s argument cannot refer to the absence of
evidence that only the defendant’s testimony could provide. (See
People v. Carter (2005) 36 Cal.4th 1215, 1266.) The rule,
however, does not extend to comments on the state of the
evidence or on the failure of the defense to introduce material
evidence or to call logical witnesses. (See People v. Lewis (2009)
46 Cal.4th 1255, 1304.)” (People v. Brady (2010) 50 Cal.4th 547,
565–566 (Brady).)
In closing arguments, defense counsel stated that there
were witnesses to the shooting that detectives should have
interviewed, implying that the police investigation was
incomplete and unfair to Allagoa: “Detectives saw there were a
bunch of people -- you see there’s people in the video, not only on
the one side of the parking lot near the liquor store but also
where the actual scene took place . . . . Why weren’t these people
interviewed? They have ways of finding these people. Why not?”
In rebuttal, the prosecutor responded that he did not have
a way to locate these witnesses, but that, if defense counsel
believed they would exonerate Allagoa, she could have located
them because the witnesses were people Allagoa knew:
“Ms. Yakovlev said, ‘Look, there are a lot of things that
could have been presented.’ The subpoena power of the court
works both ways. The defense has every right to present
evidence in the same way that we do. . . . [¶] [Ms. Yakovlev] said,
‘What about all these other people from the crime scene?’ Look,
the defendant was hanging out there. He knows who was there. If
they wanted to bring them in, they could have. . . . The guy that
was in the van -- right? I don’t know who he was. I can’t look at
42
the video and tell you. You know who knows? The defendant.
They have access to that information. They want to call those
people to testify and present a case, they are allowed to do that.”
Allagoa argues that the italicized comments are improper
remarks relating to his decision to exercise his constitutional
right not to testify. A fair reading of the prosecutor’s comments
does not support this interpretation. The prosecutor argued that
if the defense felt that the witnesses in the parking lot would
exonerate him, Allagoa knew how to find them, and the defense
could have subpoenaed those witnesses to testify on Allagoa’s
behalf. Nothing in the passage relates to Allagoa’s decision not to
testify himself, and it would not have been necessary for Allagoa
to testify for the defense to identify potential witnesses. The
prosecutor’s remarks were a permissible comment on the
defense’s failure to call logical witnesses in support of Allagoa’s
case. (Brady, supra, 50 Cal.4th at p. 566.)
Additionally, the trial court instructed the jury under
CALCRIM No. 355 that Allagoa had a constitutional right not to
testify, that the burden was on the prosecution to prove his guilt
beyond a reasonable doubt, and that the jury should not allow
Allagoa’s exercise of his right not to testify to influence its
decision in any way. (Lopez, supra, 46 Cal.App.5th at p. 525
[“Jurors are presumed to follow the instructions they are given”].)
V. Evidence of Goudeau’s Past Violent Conduct
Under Evidence Code section 1103, subdivision (a)(1), the
defendant in a criminal action may “offer evidence of the victim’s
‘character or a trait of character (in the form of an opinion,
evidence of reputation, or evidence of specific instances of
43
conduct)’ in order ‘to prove conduct of the victim in conformity
with the character or trait of character.’” (People v. Fuiava (2012)
53 Cal.4th 622, 695 (Fuiava).) “Once the defendant has offered
such evidence, the prosecution is permitted to offer its own
character evidence of the victim to rebut the defendant’s
evidence. [Citation.] Further, if the defendant has offered
‘evidence that the victim had a character for violence or a trait of
character tending to show violence,’ the prosecution is permitted
to offer ‘evidence of the defendant’s character for violence or trait
of character for violence (in the form of an opinion, evidence of
reputation, or evidence of specific instances of conduct)’ in order
‘to prove conduct of the defendant in conformity with the
character or trait of character.’ [Citation.] In other words, if . . .
a defendant offers evidence to establish that the victim was a
violent person, thereby inviting the jury to infer that the victim
acted violently during the events in question, then the
prosecution is permitted to introduce evidence demonstrating
that (1) the victim was not a violent person and (2) the defendant
was a violent person, from which the jury might infer it was the
defendant who acted violently.” (Id. at pp. 695–696.)
“[Evidence Code] section 352 permits [the trial court] to
exclude evidence if in the court’s discretion ‘its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.’ Like all proffered evidence, character
evidence is subject to exclusion under that section. [Citation.]”
(People v. Shoemaker (1982) 135 Cal.App.3d 442, 448
(Shoemaker).)
44
We review the trial court’s rulings regarding the admission
of evidence under Evidence Code section 352 for abuse of
discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.)
“‘The discretion is as broad as necessary to deal with the great
variety of factual situations in which the issue arises, and in most
instances the appellate courts will uphold its exercise whether
the conviction is admitted or excluded.’” (People v. Hinton (2006)
37 Cal.4th 839, 887; accord, People v. Clark (2011) 52 Cal.4th
856, 932.)
Proceedings
Prior to trial, defense counsel successfully moved to
introduce evidence pursuant to Evidence Code section 1103,
subdivision (a)(1), that Goudeau had sustained a prior conviction
for misdemeanor battery in 2015. Defense counsel also sought
admission of statements by Benedetti and Derrick Bynum that
Goudeau was seen fighting in the parking lot on prior occasions.
Goudeau’s Battery Conviction
With respect to Goudeau’s battery conviction, the trial
court stated that it would admit the evidence and instruct the
jury on battery so that it would understand battery “can be the
slightest touching if it’s an unwanted touching.” The court would
further instruct that “they are not to assume what the facts are
in that case, just the fact that he had a conviction for battery.”
The court would “instruct the jurors that we have no information
at this time about the underlying facts of that case.”
45
Benedetti’s Testimony
Defense counsel informed the court that she had received
audio transcripts of an interview Sergeant Ramirez conducted of
Benedetti the day after the murder in which Benedetti stated
that he frequently saw Goudeau “with markings on his face and a
bloody nose as though he were fighting.” Counsel did not know
when Benedetti saw these fights. The trial court responded,
“That’s not sufficient because [Benedetti] has no idea how
[Goudeau] got the markings.” Defense counsel later stated that
Benedetti previously stated: “‘I’ve seen him get into a fight. I just
don’t know who he was fighting with, you know what I mean?’”
Benedetti also stated that the last fight he saw occurred “‘Like
three months ago or something like that.’”
The trial court ruled the evidence inadmissible under
Evidence Code section 352 because “[Benedetti is] so uncertain
about that. I’m not going to allow that because I am going to
allow the Bynum [testimony] and the prior [battery]
misdemeanor. And this, to me, we don’t know if it’s an
argument.” The court stated that it would revisit the matter if
defense counsel was able to discover more specific information
about the fights that Benedetti allegedly witnessed. Counsel
added that Benedetti also stated, “‘Well, I seen him get into a
fight before with a bloody nose. And fighting -- fighting with a
bloody nose.’” The court permitted counsel to question Benedetti
in court outside the presence of the jury and delayed a final
ruling until more information could be gathered.
A few days later the court questioned Benedetti outside the
presence of the jury regarding whether he had ever seen Goudeau
engage in a fist fight. Benedetti responded that he had seen
46
Goudeau fighting “a couple times.” He could not remember when
the most recent fight occurred. He did not know who Goudeau
was fighting with, or which person started the altercation.
Someone told Benedetti that Goudeau got punched and had a
bloody nose, but he did not see the fight occur. The trial court
questioned Benedetti regarding whether there was a specific
incident that he could recall, but Benedetti could not remember
dates or details. Benedetti’s memory was not refreshed by
hearing a portion of his interview with Sergeant Ramirez in
which he made statements about fights involving Goudeau read
aloud.
The trial court ruled the evidence inadmissible under
Evidence Code section 352. The court found that Benedetti’s
testimony was not “sufficiently concrete.” Benedetti did not know
who started the fights, who was involved, and it was not certain
that Benedetti even saw Goudeau with a bloody nose.
The next day, defense counsel argued to the court that it
did not matter who the aggressor was. She stated, “I think
generally the fact that he’s fighting at that location creates a type
of a character that can be -- should be explored by the defense.”
The trial court responded, “And I just want to state very clearly
for the record, he was so uncertain as to when, what happened,
how much he saw, that it has such a small amount of probative
value as to whether [Goudeau] would be the aggressor. . . I am
denying the motion under [Evidence Code section] 352.”
Bynum’s Testimony
Defense counsel represented that Bynum would testify that
“Goudeau was seen fighting directly at that same parking lot the
47
night before the murder.” The court stated that it would allow
Bynum’s testimony for the purpose of showing that Goudeau was
the aggressor, but that “he has to have direct knowledge of it. He
has to have seen it. He can’t have just heard about it.” Defense
counsel stated that Bynum’s declaration stated he had seen the
fight.
At a hearing outside the presence of the jury, it was
established that Bynum had sustained three convictions for
crimes of moral turpitude within a few years of trial, which the
trial court ruled it would allow the prosecution to use for
impeachment. Defense counsel proffered that Bynum would
testify that a few days before the murder Goudeau was “acting
aggressively” towards him and they had a confrontation. Bynum
smelled alcohol on Goudeau’s breath. Goudeau also “threw a
punch” at Bynum and picked up a brick.
Bynum appeared at the hearing for questioning. He stated
that he did not want to be in court, had nothing to do with the
case, and was likely to lose his job if the parties called him to
testify. The court permitted the prosecutor and a detective to
interview Bynum over a break. Afterwards, the prosecutor
informed the court and defense counsel that Bynum contradicted
the defense’s proffer: “[Bynum] said that a brick was not thrown
at him. He said that he owed Mr. Goudeau money stemming
from having purchased some drugs from him. He said that Mr.
Goudeau came at him in a way that he didn’t like. They got into
a fight. Afterward, he gave him the money, they shook hands,
and they went their separate ways.”
The trial court asked defense counsel if he planned to call
Bynum. Counsel stated that he had concerns about doing so:
“Well, my understanding is that introduction of evidence showing
48
the victim’s character for violence would then allow the
prosecution to rebut with evidence of defendant’s violent
character.”
The prosecutor then stated, “And I should mention that . . .
Mr. Bynum also said he’d been in a fight with the defendant.”
Analysis
Goudeau’s Prior Battery Conviction
Allagoa first contends that defense counsel provided
ineffective assistance because he failed to introduce the fact of
Goudeau’s 2015 battery conviction. He asserts that there could
be no reasonable tactical reason for counsel’s decision. We
disagree.
There were several reasonable tactical reasons for counsel
to avoid introduction of the prior conviction. First, the conviction
was for misdemeanor battery and the trial court ruled that it
would give a limiting instruction informing the jury that battery
can be the slightest touching and that the jurors could not
speculate regarding the underlying facts of the conviction. Under
the circumstances, the conviction was of very limited probative
value to the jury because the jury had to accept that it was
unknown whether Goudeau engaged in a physical fight.
Additionally, the prosecution could have called Bynum to
testify regarding Allagoa’s conduct under Evidence Code section
1103. Bynum’s statements regarding his interaction with
Goudeau were contradictory, and his most recent statements
were more favorable to Goudeau. He stated unequivocally that
he fought with Allagoa. Bynum was an unwilling witness, and
49
just as likely to hurt Allagoa’s case as to help it. Having him
testify would be risky, and could undermine the defense’s theory
that Allagoa was not the aggressor and instead acted in self-
defense. Under the circumstances, we cannot conclude that
defense counsel’s performance was deficient. (Mai, supra, 57
Cal.4th at p. 1009.)
Goudeau’s Prior Violent Conduct
Allagoa further contends that the trial court abused its
discretion and violated his “compulsory process to produce
evidence and due process right to a fair trial” by excluding
Benedetti’s testimony that Goudeau had previously engaged in
fistfights in the liquor store parking lot under Evidence Code
section 352. We disagree.
As the trial court stated, Benedetti’s testimony had very
limited, if any, probative value. He could not say when the fights
took place, who Benedetti was fighting, or who instigated the
fights. There was no question that a fight took place prior to the
shooting. The issue was whether Goudeau or Allagoa was the
aggressor. Benedetti’s testimony would not illuminate that issue
for the jury. The trial court did not abuse its discretion in
determining that the probative value of the evidence was
outweighed by the possible prejudice, consumption of time, and
likelihood of confusing or misleading the jury. (Shoemaker,
supra, 135 Cal.App.3d at p. 448.)
As a general rule, “a defendant has no constitutional right
to present all relevant evidence in his favor.” (People v. Guillen
(2014) 227 Cal.App.4th 934, 1019 (Guillen).) Application of the
ordinary rules of evidence does not impermissibly infringe on the
50
defendant’s right to present a defense. (People v. Gonzales (2012)
54 Cal.4th 1234, 1258 (Gonzales).) Thus, constitutional
principles are not offended by rulings that exclude evidence that
is repetitive, marginally relevant, or that poses an undue risk of
prejudice or confusion of the issues. (Id. at p. 1259.) In order for
a defendant’s constitutional rights to override application of the
ordinary rules of evidence, the proffered evidence must have
more than slight relevance to the issues and must be of
substantial and significant value. (Guillen, supra, at p. 1019.)
Given the slight relevance of Benedetti’s testimony, the trial
court did not violate Allagoa’s constitutional rights.
VI. Admission of Facebook Evidence that Allagoa Possessed
a 9 Millimeter Gun
Prior to trial, the prosecution sought to admit evidence of
Allagoa’s posts on Facebook demonstrating that he purchased a 9
millimeter handgun approximately three weeks prior to the
murder, that the gun was in his possession five days before the
murder, and that he was not inclined to lend it to a friend who
asked to borrow it.
On August 5, 2016, Allagoa responded to a post containing a
photo of a handgun:
“[Allagoa:] Oh shit the cueta.
“[The poster, Brian Childress:] I just cop it 4 450.”
On August 6, 2016, Allagoa replied.
“[Allagoa:] I want one.
“[Childress:] He only had one but he said he got a 9 350.
“[Allagoa:] Tell him I want it A.S.A.P.
“[Childress:] Alright.”
51
“[Allagoa:] You told him?”
On August 26, 2016, Allagoa exchanged posts with Peirce
Wolf Hayley Mickens:
“[Mickens:] Aye cuh Imma need the strap TM at 1:30 some
[guys] trippin on us.
“[Mickens:] Over a bitch.
“[Allagoa:] RN?
“[Mickens:] Imma come to Thorne from Lawndale around 1
or 2. Imma need it by then cause them [guys] tryna pull up TM.
“[Mickens again:] They already did today.
“[Allagoa:] “I’ll post wit you but I’m not givin it to you.
“[Mickens:] Imma give it back foo. Don’t trip. It’s just foe
today.
“[Allagoa:] Sound dumb.”
Defense counsel objected to the Facebook evidence on the
grounds of authentication and undue prejudice under Evidence
Code section 352. The trial court ruled the evidence would be
admitted if it could be established that the posts were business
records obtained from Facebook through a warrant that could be
connected to Allagoa. It found the posts to be “very relevant and
more probative than prejudicial” because the inference to be
drawn was that the holder of the Facebook account had a gun five
days before the murder that he retained in his possession.
Moreover, the post was not remote in time. It was written just
before the killing, which was committed with a firearm.
At trial, prosecution witness Alex Manica, a crime analyst
from the Los Angeles Sheriff’s Department, testified regarding
the slang used in the posts. He explained that “cueta” meant
gun, “I just cop it 4 450” meant that Childress just bought a gun
for $450, and “he said he got a 9 350” meant that the person
52
Childress purchased the gun from had a 9 millimeter firearm
that he would sell to Allagoa for $350.
Manica testified that “Aye cuh Imma need the strap TM at
1:30 some [guys] trippin on us. Over a bitch.” meant hey friend,
I’m going to need the gun tomorrow because some guys want to
fight with us over a girl. “RN” meant “‘Right now.’” “Imma come
to Thorne from Lawndale around 1 or 2. Imma need it by then
cause them [guys] tryna pull up TM” meant “‘I’m going to come to
Thorne from Lawndale around 1:00 or 2:00. I’m going to need it
by then because them guys are trying to come tomorrow.’” “I’ll
post wit you but I’m not givin it to you” meant “I’ll be there with
you, but I’m not going to give it to you.’” “Imma give it back foo.
Don’t trip. It’s just foe today.” meant don’t worry buddy, I’ll give
it back, it’s just for today.
At trial, defense counsel presented evidence that the gun
used to kill Goudeau belonged to Lias, rather than Allagoa. An
expert witness for the defense, forensic scientist Babek Malek,
testified that by using specialized equipment he was able to
discern that Lias was holding “an object resembling a gun”
during the fight.
In closing statements, the prosecutor argued that the
Facebook posts demonstrated that Allagoa purchased a gun:
“[W]e know that once he gets the gun -- and you’ll recall a 9-
millimeter. That is significant and we have additional evidence
that supports that that’s the gun that was used to kill Joseph
Goudeau. We know that he doesn’t want to get rid of that gun.”
“He’s not getting rid of his gun. He is not lending his gun. For
whatever reason, he wants to keep that gun.” “We know five
days before the murder, he’s got a gun.”
53
With respect to premeditation and deliberation, the
prosecutor argued: “But we have -- and this is important when we
talk about deliberation. We have the defendant hanging out in
the parking lot. Someone shows up in a van, and the second that
driver is done transacting . . . inside the store, defendant gets in
that van and they drive off. That is at 8:11 p.m. [¶] In the
intervening time, [Goudeau] is still hanging out in the parking
lot.” “[A]bout . . . 8:28, 8:29 defendant . . . walks into the parking
lot. We’re not really sure where he comes from. . . . He left in a
van. This is the first time he’s back on video. He walks into a
parking lot and he immediately goes to this car. It’s like a gray
wagon, sport wagon, something like that. And he stands at that
car for a couple minutes. . . . There are a few reasonable
conclusions we can draw. He leaves to get a gun. Or, possibly,
when he’s standing at this car, he gets a gun from whoever is
inside it. That’s less likely because, again, we know he’s got a
gun.” “He goes around the front of this S.U.V. and he
immediately starts flexing. And it’s almost like you can’t make
this stuff up; right? That he’s got a gun. We know he’s about to
get in a fight. And it’s like he’s flexing in the direction that we
last saw [Goudeau] go. Like he is ready to challenge him now.
And the thing that is different is that he’s got a gun now.” “And
we get a description from Mr. Curran -- right? -- about a gun
flopping around in the pocket of the defendant. When you watch
the video, it is clear that there is something heavy in his front
right pocket. That’s the gun that he is taking to the fistfight.”
Defense counsel challenged the prosecutor’s theory that
Allagoa brought a gun to the parking lot: “[W]here is the gun in
this case? There’s no gun registered to Mr. Allagoa.” Defense
counsel averred that Allagoa was not the aggressor, but rather
54
acted in self-defense. She asserted that, based on the expert
testimony of Malek, Lias was holding a gun.
In rebuttal, the prosecutor argued: “Now, [defense counsel]
also said, ‘There’s nothing connecting him to a gun.’ There are
several things connecting him to a gun: the fact that he told
someone in Facebook that he wanted a gun; the fact that someone
said, ‘Hey, can I borrow the strap?’ and he said ‘No, you can’t’;
and the fact that he’s holding a gun and shoots and kills
someone.”
Trial Court’s Admission of the Facebook Evidence
Allagoa contends that the trial court abused its discretion
and violated his constitutional rights under the Fifth and
Fourteenth Amendments by improperly admitting evidence that
he offered to bring a gun to a prior, unrelated fight in the August
26, 2016 Facebook posts, italicized above. This contention lacks
merit.
The trial court did not admit the Facebook evidence as
evidence of character or for the purpose of allowing the
prosecution to show that Allagoa planned the murder days in
advance. The court admitted the evidence for the purpose of
showing that five days before the murder, Allagoa possessed a
gun of the same caliber as the bullet that killed Goudeau and
that Allagoa was not inclined to give the gun to someone else.
The trial court did not abuse its discretion in doing so. Evidence
that Allagoa had a gun in his possession five days before he shot
Goudeau to death with bullets of the same caliber was highly
relevant to the issue of whether the gun used to kill Goudeau was
Allagoa’s—a fact that the defense contested. (See People v.
55
Sanchez (2019) 7 Cal.5th 14, 55 [evidence that defendant
possessed a gun prior to the shooting was admissible because it
“‘did not merely show that defendant was a person who possesses
guns, but showed he possessed a gun that might have been the
murder weapon’”].) The August 5 and 6 posts tended to show
that Allagoa wanted to buy a gun and that a 9 millimeter gun
was available for sale, but the only evidence confirming that
Allagoa actually owned a firearm was contained in the August 26
posts.
Although there was arguably a danger of prejudice, it was
not as great as Allagoa suggests. In the posts, Allagoa never
stated that he intended to take the gun with him to back Mickens
up in the fight, only that he would “post,” which Manica
explained meant that he would accompany Mickens to the fight.
Moreover, the evidence did not demonstrate that Allagoa actually
brought a gun to the fight with Mickens—or went to the fight at
all. Allagoa’s final post stated that the fight “[s]ound[ed] dumb.”
The trial court properly weighed probative value against
prejudice under Evidence Code section 352; it did not abuse its
discretion. Moreover, the court’s ruling was an application of the
ordinary rules of evidence and did not impinge on Allagoa’s
constitutional rights. (Gonzales, supra, 54 Cal.4th at p. 1258.)
Defense Counsel’s Failure to Object Under Evidence
Code Section 1101
Allagoa argues that defense counsel’s performance was
deficient because counsel failed to object to the Facebook posts on
the basis that they should be excluded under Evidence Code
section 1101. This contention also fails.
56
“‘Subdivision (a) of [Evidence Code] section 1101 prohibits
admission of evidence of a person’s character, including evidence
of character in the form of specific instances of uncharged
misconduct, to prove the conduct of that person on a specified
occasion. Subdivision (b) of section 1101 clarifies, however, that
this rule does not prohibit admission of evidence of uncharged
misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition.’ (People v.
Ewoldt (1994) 7 Cal.4th 380, 393.)” (Fuiava, supra, 53 Cal.4th at
p. 667.)
The Facebook evidence was admissible to show that Allagoa
used his own gun to kill Goudeau. Allagoa’s use of his own gun
tended to demonstrate that he made a conscious decision to kill
Goudeau because making that decision (and possibly retrieving
the gun) afforded him time for reflection prior to killing Goudeau.
It is also evidence tending to show that Goudeau was not the
aggressor in the fight. Evidence Code section 1101 permits use of
the Facebook evidence to establish premeditation and
deliberation or to rebut the theory that a defendant acted in self-
defense. (Evid. Code, § 1101, subd. (b); People v. Cage (2015) 62
Cal.4th 256, 273.) Counsel is not ineffective for failing to object
to the admission of properly admitted evidence. (People v. Gray
(2005) 37 Cal.4th 168, 212.)
Moreover, the Facebook evidence was not used to show that
Allagoa planned to kill Goudeau five days before he shot him as
Allagoa claims, so Allagoa cannot demonstrate prejudice. The
prosecution argued that premeditation and deliberation could be
inferred in part from Allagoa’s choice to bring the gun to the
parking lot on the day of the murder. From the facts that: (1) a 9
millimeter gun was in Allagoa’s possession five days earlier, and
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(2) Allagoa showed a reluctance to part with the gun, it could
reasonably be inferred that Allagoa had the gun on the day that
Goudeau was murdered with a bullet of the same caliber, and
that Allagoa used that gun to shoot Goudeau. The prosecutor
theorized that Allagoa made the decision to retrieve the gun
either when he left the parking lot in the van or when he walked
over to the gray sport wagon. The fact that Allagoa retrieved the
gun demonstrated that he had adequate opportunity for
premeditation and deliberation. The prosecutor never suggested
that Allagoa intended to kill Goudeau before the day of the
murder. Having failed to demonstrate prejudice, Allagoa has not
shown counsel was ineffective.
VII. Cumulative Error
Allagoa contends that even if no single error warrants
reversal, he was prejudiced by the cumulative effect of the errors
at trial. We disagree.
“The ‘litmus test’ for cumulative error ‘is whether
defendant received due process and a fair trial.’ [Citation.]”
(People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Here, we
review Allagoa’s claim of cumulative error to determine whether
it is “reasonably probable a result more favorable to defendant
would have been reached in the absence of the alleged errors.”
(People v. Carrera (1989) 49 Cal.3d 291, 332 [citing the standard
in People v. Watson (1956) 46 Cal.2d 818, 836]; see People v.
Millwee (1998) 18 Cal.4th 96, 168 [Supreme Court rejects
defendant’s cumulative prejudice argument, stating “[o]ur careful
review of the record persuades us that the trial was
fundamentally fair and its determination reliable”].)
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The internet searches showing that Allagoa sought legal
assistance after he committed the shooting should not have been
admitted, but their admission and the prosecutor’s remarks
regarding them do not undermine the fact that Allagoa received a
fair trial and due process. Overwhelming evidence supported the
verdict. It is not reasonably probable that the outcome would
have been more favorable absent the alleged errors.
DISPOSITION
We affirm the trial court’s judgment.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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