P. v. Johnson CA1/4 filed 8/19/26

Filed 8/19/26 P. v. Johnson CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
v.
LAWRENCE BOMANI JOHNSON,
Defendant and Appellant.

A169654

(Alameda County
Super. Ct. No. 22CR000481)

Following the consolidation of two cases involving sex crimes against minors, Johnson was convicted of sex trafficking, pandering, and pimping a 16-year-old girl. The charges involving the other alleged underaged victim of sex trafficking were dismissed during trial when that alleged victim did not appear to testify. Johnson, who had a prior strike and a prior conviction for human trafficking of a minor for a commercial sex act, was sentenced to 24 years in prison.
Johnson challenges the judgment on several grounds. He argues reversal is warranted due to thecases’ improper consolidation, the admission of evidence of his prior sexual offense, untimely discovery by the prosecution, and the cumulative prejudice of the alleged errors. He also argues the trial court abused its discretion at sentencing. We affirm.
BACKGROUND
We provide only a brief summary of the facts underlying Johnson’s convictionsbecause they are generally not necessary to our decision. We provide further background on relevant proceedings in the trial court in our discussion of Johnson’s legal arguments.
OnFriday, August 27, 2021, Keke Doe (Keke) was in an area of Oakland known for prostitution, working as a prostitute for a pimp. She was 16 years old. Johnsondrove up to Keke in a car, and a young woman in the passenger seat complimented Keke’s appearance. After some back and forth, Keke got in the car with them.
Keke initially told Johnson that she was 18 or 19 years old, but later in theeveningshe disclosed that she was 16 years old. They went to Johnson’s house and discussed prostitution; he laid out ground rules for her to follow, such as the use of condoms and not talking to other pimps, as well as pricing and revenue goals. That night they shared a bed but did not have any contact with each other.
Keke worked for Johnson over the course of the weekend. Johnson gave her rides and condoms, and she kept Johnson informed about where she was going. He took her back to his house midday to change clothes and he took her shopping. Keke made $300 on Saturday and gave it all to Johnson.
On Sunday, August 29, 2021, an undercover police officer saw Keke in an area known for prostitution. She watched Keke for about 50 minutes and observed suspicious activity before taking Keke into protective custody. Police arrested Johnsonlater that day.
Johnson was charged with three crimes involving Keke: pandering by encouraging a minor over age 16 (Penal Code, §266i, subd.(a)(2)); human trafficking of a minor for a commercial sex act (§236.1, subd.(c)); and pimping a minor (§266h, subd.(b)).The case was consolidated with another criminal case against Johnson for sex crimes involving another minor, Nia Doe (Nia).During trial, the alleged offenses involving Nia were dismissed. A jury found Johnsonguilty of the crimes involving Keke. The court sentenced Johnson to 24 yearsin prison.
DISCUSSION
The Consolidation of the Cases Was Not Improper Nor Resulted in an Unfair Trial
Johnson argues thatthe trial court committed reversible error in granting the prosecution’s motion to consolidate the cases and in denying his motion for severance. He further argues that regardless of whether the joinder and severance rulings were correct, the joinder resulted in gross unfairness, depriving him of a fair trial and due process of law. We find no error.
Background
The People filed the information charging Johnson in the case involving Keke (the Keke case) in November 2021. Less than two months later, the People filed a complaint inanother case concerning another alleged victim, Nia (the Nia case). Johnson’s trial counselbegan representing Johnson in each case in February and March of 2022, respectively. The preliminary hearing for the Nia case took place inNovember 2022.
At the preliminary hearing, a police detective testified regarding Nia’s identification of Johnson as her pimp. The detective relayed Nia’s description of working as a prostitute in Oakland for Johnsonand of traveling to Stockton with Johnson to engage in sex work there. According to the detective, Nia said that Johnson used force to prevent her from leaving when she no longer wanted to continue working for him.On cross-examination, the detective admitted that this narrative was “based entirely on what Ms. [Nia] Doe said.” The detective admitted that she had not corroborated any aspect of Nia’s claims including any details that Nia provided such as whether Johnson had checked into a hotel room in Stockton.
Defense counsel argued that the investigation was “abysmal” because of the lack of any corroboration and therefore the victim’s narrative should not be credited. The magistrateacknowledged that the prosecution would need to address “corroboration issues” at trial and would “have to sit down and saddle up whether or not that witnesseven shows up . . . .” Nonetheless, the magistrate found there was sufficient evidence to hold Johnson to answer. Accordingly, Johnson was charged by information filed later that month.
Roughlysix weeks after the preliminary hearing, in December 2022, the prosecution moved to consolidate the two cases pursuant to section 954. Johnson opposed the motion.
At the hearingon the motion to consolidate, the prosecutor first stated that he did not believe anyone in his office was aware of the Nia case when the Keke case was filed. He continued:“It was a couple of weeks after the arraignment on the [Nia] case that I indicated to [defense counsel] that we would ask the court to consolidate the charges. And so it was really just a matter of weeks after that arraignment on that case that we sought that consolidation.” He conceded that his office “[p]ossibly” should have brought the motion earlier, but he countered that “one could argue it would be premature to do it before [the preliminary hearing].” He alsoopined that evidence on the charges would be cross-admissible and stated he was not opposed to the defense having more time.
Defense counsel maintained there had been an “unreasonable andunexplained delay” in the prosecution’s motion to consolidate.Counsel further asserted that before it was filed,the Nia case had been used as leverage in an unsuccessful attempt to pressure Johnson to plead in the Keke case.
The trial court granted the motion to consolidate. It first observed that the defense counsel appeared on the docket for the Keke and Nia cases in February and March 2022, respectively, stating: “So, in my mind, you had to have known that that wasgoing to be consolidated.” The court found that “[j]udicial economy and efficiency demand that these [cases] go together. It’s the same class of crime.” The court continued: “This is not a surprise, in my mind, considering you had the case for a lengthy period of time. This isn’t like you had it two weeks ago. You’ve been in it for a good while now, almost a year on both.”
In April 2023, Johnson filed a motion to sever the cases. Johnson contended that the Nia case was “extraordinarily weak” because it rested on hearsay evidence only admissible in a preliminary hearing, and he characterized the Keke case as “extremely weak” because it too lacked corroborating evidence. When the trial court heard argument on the motion, defense counsel posited that“taking two weak cases together would tend tobolster the case.” In his motion, Johnson also argued that the cases alleged dissimilar facts because Keke claimed she worked for Johnson while Nia alleged that she worked for Johnson’s “ ‘bottom.’ ”The court denied the motion,noting that the jury instructions would address Johnson’s concerns.
The first amended information was filed in May 2023, alleging three counts for crimes against Nia between June 5, 2021, and July 25, 2021, and three counts for crimes against Keke between August 27, 2021, and August 29, 2021.Before voir dire, the trial court outlined the charges, identified the parties, and read the first amended information to the prospective jurors. Thus, the prospective jurors heard the charges pertaining to Nia, including the allegation that the commission of the human trafficking offense “involved force, fear, fraud, deceit, coercion, violence, duress,menace, or threat of unlawful injury to the victim and toanother person.”
Opening statements took place the next day. In his opening,the prosecutor stated that “the cases involve[d] six counts,” but he then said: “I am notgoing to be addressing Counts One, Two and Three in this openingstatement.I am going to skip to Counts Four, Five and Six.” He made no further mention of the counts involving Nia. In his opening statement, defense counsel expressedsurprise that the prosecution did not discuss the counts involving Nia, rhetorically asking, “Why would that be? Aren’t we here to try six counts?” Defense counsel then argued that the Nia case was premised on Nia’s “story” that a woman named Ari “introduced her to Mr. Johnson” but that no person purported to be Ari would testify and “[w]e don’t know who this person is.” Defense counsel summarized Nia’s story about staying in a hotel in Stockton with Johnson,but counselstated that the prosecution would not have evidence corroborating that Johnson was ever at a hotel in Stockton. Finally, he stated that Nia was motivated to portray herself as a victim to avoid prosecution. After discussing the Keke case, defense counsel concluded by turning back to the prosecution’s failure to discuss the Nia case, stating: “And you will probably find yourself thinking,why didn’t he talk about Counts One, Two and Three. They putthese counts together. The District Attorney’s office put thesecounts together in hopes that you would convict.[¶] Why in the world is he not talking about it?That’s because it is disproving and he knows it.” The prosecutor lodged an objection to this comment, which the trial court sustained.
At the next trial day, in response to the trial court’s inquiry on whether the prosecution intended to call Nia to testify, the prosecutor stated, “I don’t have any word on that, because she may be a missing person at this point.” On the morning when the prosecution confirmed it would wrap up its case-in-chief, the prosecutor confirmed that Niawould notappear,and the trial court dismissed counts 1, 2, and 3 on the prosecution’s oral motion.
After both parties rested, the trial court instructed the jury. As to the charges concerning Nia, the court instructed the jury as follows: “Counts 1, 2, and 3 charging the defendant with human trafficking of Nia Doe. Pimping of Nia Doe and pandering of Nia Doe no longer need to be decided in this case. [¶] Do not speculate about or consider in any way why you no longer need to decide these counts.” The parties’ closing arguments followed, during which defense counsel remarked: “Counts 1, 2, and 3 are no longer before you. They are not to be considered. They are not to be thought of in any way, shape, or form. We’re here to talk about the three counts that remain.”
Legal Standards
Section 954 authorizes the joinder of “two or more different offenses connected together in their commission...or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated.”“[T]he requirement of section 954 that offenses be ‘connected together in their commission’ may be satisfied even though ‘the offenses charged “do not relate to the same transaction and were committed at different times and places...against different victims.”’ ” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1218 (Alcala).)
While the law favors joinder because it promotes judicial economy and efficiency, a trial court nonetheless has discretion to order that properly joined charges be tried separately. (People v. Merriman (2014) 60 Cal.4th 1, 37 (Merriman).) “In exercising its discretion in this regard, the court weighs ‘the potential prejudice of joinder against the state’s strong interest in the efficiency of a joint trial. [Citation.]’ [Citation.] To succeed on a claim that the trial court abused its discretion in denying severance or ordering consolidation, the defendant must make a ‘ “clear showing of prejudice” ’ and establish that the ruling fell ‘“‘“ ‘outside the bounds of reason.’ ”’” ’ [Citations.] An appellate court evaluates such claims in light of the showings made and the facts known by the trial court at the time of the court’s ruling.” (Ibid.)The factors the appellate court considers are: “ ‘(1)the cross-admissibility of the evidence in separate trials; (2)whether some of the charges are likely to unusually inflame the jury against the defendant; (3)whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4)whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.’ [Citations.] ‘The state’s interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence.’ ” (Alcala, supra, 43 Cal.4th at pp. 1220–1221; see Merriman, at p. 38 [“If the evidence underlying the joined charges would have been cross-admissible at hypothetical separate trials, ‘that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges’ ”].)
However, even where the trial court properlyconsolidated charges and denied severance, the appellate court must further inquire whether joinder resulted in “gross unfairness” amounting to a denial of defendant’s constitutional right to fair trial or due process of law. (Merriman, supra, 60 Cal.4th at p. 46; People v. Simon (2016) 1 Cal.5th 98, 123.)In evaluating whether joinder resulted in unconstitutional gross unfairness, we must determine “if it is ‘reasonably probable’ ” that the joinder influenced the jury’s verdict.(Merriman, at p. 49.)
Analysis
As a threshold matter, the charges in question met the statutory requirements for joinderbecause the offensesconcerning Nia belonged to the same class of crimes as the offenses concerning Keke. (Cf. Merriman, supra, 60 Cal.4th at p. 36 [sexual assault counts and murder count could be joined in a single trial].)Indeed, counts 1 and 5 for human trafficking a minor, counts 2 and 6 for pimping a minor, and counts 3 and 4 for pandering with a minor were virtually identical. Moreover, evidence underlying the sexual offenses against each victim almost certainly would have been cross-admissible in separate trials.
Johnson does not dispute that the offenses fell into the same class of crimes nor does he address the cross-admissibility of the evidence. Instead, Johnson contends the joinder and the denial of his severance motion were improper because “[t]he Nia case was both more inflammatory and weaker than the Keke case.”We disagree.
Although the sex trafficking charge involving Nia alleged Johnson used force, fear, fraud, deceit, coercion, violence, or duress, that allegation alone was not “unusually likely to inflame the jury against [Johnson].”(Alcala, supra, 43 Cal.4th at p. 1220.) At the time the court made its ruling, Nia’s purported testimony—as previewed at the preliminary hearing—was not so aggravating as to prejudice the jury in evaluating the offenses against Keke. The court was told that Nia would testify that Johnson had thrown her on a hotel bed and against a door to prevent her from leaving his employ. Further, the preliminary hearing disclosed that the injury was minor enough that Nia did not bleed and, when police arrived, “she played it off” and “the officer saw that [Johnson and Nia] were both okay with each other” and left. Nia “worked for him a couple more days and then she was able to leave.” While the alleged conduct is unsavory, the court did not abuse its discretion in determining that a jury would not be unduly influenced by the allegation wheninstructed toseparately evaluate the evidence that Johnson had trafficked, pimped, and pandered Keke.
Nor are we persuaded that the trial court abused its discretion byimproperly joining a weaker case with a stronger case. At the timeconsolidation was ordered,it was apparent that each case was dependent on the complaining witness’s testimony. At the hearing on the motion to sever,defense counsel characterized the Nia case as “probably” the weaker case, but Johnson’s “position [was] that both cases are weak.”Plus, the 2021 information in the Keke case and the 2022 complaint in the Nia case each alleged the same prior conviction for human trafficking of a minor from 2008, and therefore the court could have reasonably concluded that the propensity evidence would be permissible in each case. Accordingly, in view of the facts known by the court at the time of its rulings, we are not persuaded that the court abused its discretion in finding the potential prejudice from the aggregate evidenceof the offenses against Nia and Keke was outweighed by the state’s strong interest in the efficiency of a joint trial.
Johnson also contends that the motion to consolidate the cases was untimely. However,a superior court only exercisesjurisdictionover a felony case once the information is filed. (People v. Henson (2022) 13 Cal.5th 574, 590, 593–594.)Today, superior courts and inferior courts are unified, but their historicaljurisdictional boundaries remain. (Id.at p. 593.) Even though judges of superior courts sit as magistrates to hold preliminary hearings in felony cases, the magistrate does “not preside as the judge of any court” and does “not exercise trial jurisdiction.” (Ibid.) “[T]he felony complaint is filed ‘with the magistrate’[citation], not with the court, and the first pleading in a felony case that is filed with the court. . . is the information.It is only with the filing of that information that the superior court begins to exercise its jurisdiction.” (Id. at p. 594.) Therefore,consolidationwould have been improper prior to Johnson being held to answer at a preliminary hearing for the charges in the Nia case because a superior court may only consolidate pleadings filed “in the same court.”(§ 954; see Henson, at p. 596 [the phrase “ ‘in the same court’ ” was “added to section 954 to prevent the superior court from consolidating a misdemeanor complaint with a felony information, which would have eroded the jurisdictional boundary between the superior courts and the inferior courts.”].)
Furthermore, as Johnson concedes, there is no “statutory time limit on when consolidation must be requested.”And we agree with the trial court that defense counsel, who had represented Johnson in both cases for about nine months already when the motion to consolidate was brought, should have anticipated that the cases against Johnson would be consolidated.
Finally, assessing the case as it was actually tried, there is no reason to believe that the jury was improperly influenced by the joinder in its verdict of guilt. (Merriman, supra, 60 Cal.4th at p. 49.) The only information about the Nia case that the jury heard was the charges and defense counsel’s argument against thecharges. We recognize that juries are not always ableto compartmentalize admissible evidence and set aside prejudicial evidence even when so instructed by the trial court.But that was not a concern here becauseno evidence pertaining to Nia or counts 1, 2, or 3 was presented to the jury.Therefore, it is not reasonably probable that the jury was influenced in finding Johnson guilty on the counts involving Keke by its mere knowledge of the dismissed charges.Thus, Johnson fails to bear the “high burden of establishing that the trial was grossly unfair and that he was denied due process of law.” (People v. Soper (2009) 45 Cal.4th 759, 783.)
The Admission of Propensity Evidence Was Not Improper
Johnson claims the trial court abused its discretion and violated his constitutional right to due process by admitting evidence of his prior offense of sex trafficking against Adrionna Doe. Specifically, Johnson contends that such evidence was more prejudicial than probative under Evidence Code section 352 due to “no meaningful similarity” between the charged offenses and the prior conduct and “the extensive and inflammatory prior conduct evidence,” including threats Johnson made.We perceive no error because dissimilarity alone cannot demonstrate undue prejudice, because the prior conduct was probative of Johnson’s propensity to commit sex trafficking of minors, and because the trial court conducted a thorough analysis under Evidence Code section 352 and adequately sanitized the admitted evidence.
Propensity evidence is typically not admissible to prove a defendant’s conduct on a specific occasion(Evid. Code, §1101, subd. (a)), except “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Evidence Code section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code, §1108.) Thus, “[t]he evidence [of other sex crimes] is presumed admissible and is to be excluded only if its prejudicial effect substantially outweighs its probative value in showing the defendant’s disposition to commit the charged sex offense or other relevant matters.” (People v. Cordova (2015) 62 Cal.4th 104, 132 (Cordova).) In making that determination, courts must consider the prior act’s “nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)
We review a trial court’s ruling admitting evidence under Evidence Code section 352 for abuse of discretion. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 824.) Trial courts possess broad discretion under Evidence Code section 352 and reversal is only appropriate on a showing that the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Dworak (2021) 11 Cal.5th 881, 899–900.)
Here, the trial court walked through each factor that courts must consider when applying Evidence Code section 352. It correctly anticipated that Adrionna Doe’s testimony “should be narrow enough that cross-examination would not result in a, quote, unquote, ‘full trial’ on [the] prior incident.” This expectation was realized at trial when Adrionna Doe’s testimony took less than 50 minutes. The court aptly noted that there was little concern about misleading the jury because of the limited nature of Adrionna Doe’s testimony and the sufficient passage in time between the offenses. The court further explained that the remoteness of the crime was mitigated by “Johnson’s interaction with police and criminal contacts through that time.” (See People v. Carpenter (1999) 21 Cal.4th 1016, 1056 [significance of the remoteness factor is diminished when the defendant suffered convictions or was in custody in the interim period].)
Johnson contends the evidence should have been excluded because“the prior conduct evidence . . . bore little similarity to the present charges.”He points out that Keke was already doing sex work when she began working for Johnson, which stands in contrast to his past crime of picking up Adrionna Doe,who was on her way to school and who testified that she did sex work as instructed out of fear. But dissimilarity is a legally insufficient basis to exclude the uncharged sex crimes under Evidence Code section 352. (Cordova, supra, 62 Cal.4th at p. 133.) While similarity between the uncharged and charged crimes is “a relevant factor” for the court to consider in its inquiry,“ ‘ “[t]he charged and uncharged crimes need not be sufficiently similar that evidence of the latter would be admissible under Evidence Code section 1101, otherwise Evidence Code section 1108 would serve no purpose. It is enough the charged and uncharged offenses are sex offenses as defined in [Evidence Code] section 1108.” ’” (Cordova, at p. 133.)
In any event, we disagree that the instant charges were meaningfully dissimilar from the prior conduct. Johnson’s focus on the differences in how he committed the crimes misses the forest for the trees. Both the prior and present conduct involved Johnson’s trafficking of minor females for commercial sex in Oakland. “‘This circumstance [of commonality] brings the evidence precisely within the primary purpose behind Evidence Code section 1108.’ ” (Cordova, supra, 62 Cal.4th at p. 134.) We further agree with the trial court’s assessment that a prior sex trafficking conviction has “probative value in a pimping, panderingprostitution-type case.”
In view of the trial court’s sanitation of the admitted evidence, we also reject Johnson’s contention that the inflammatory nature of the evidence rendered it unduly prejudicial. Again, Johnson focuses on Adrionna Doe’s testimony that she was scared of Johnson, asserting that the jury was inflamed by hearing about Johnson “threatening a young girl who did not want to be in the sex work business.” But Adrionna Doe did not testify that Johnson expressly threatened her. Indeed, after the Nia case was dismissed, the court revisited its earlier ruling and excluded portions of Adrionna’s testimony that referred to the incident as a kidnapping. The trial court also overturned its previous ruling allowing the prosecution to elicit testimony about Adrionna Doe having sexual contact with Johnson.
The court did allow Adrionna Doe to repeat her allegation that “Johnson said he put females with attitudes in his trunk,” and she testified that the statement made her feel “fear.” At trial, AdrionnaDoe also testified that she complied with several of Johnson’s requests “in” and “out of” “fear,” including when he “told” her to “give him”her phone number and when he “asked” her to go downtown. Similarly, Adrionna Doesaid she was “scared” when Johnson described how she was to conduct sex work and that she asked a friend to call pretending to be her mom so that she could go home “[b]ecause [she] was scared.” But such testimony was not unduly inflammatory, especially when balanced against its probative value. (See People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 824 [“The code speaks in terms of undue prejudice”];People v. Christensen (2014) 229 Cal.App.4th 781, 799 [“Although the [prior acts] evidence is more severe, it is not so much so that it should be excluded without a consideration of other factors or a balancing of factors”].) We further observe that the jury was informed that the sexual offense against Adrionna Doe resulted in a conviction, minimizing the risk that the jury would punish Johnson in the present case to hold him liable for his prior conduct. (People v. Loy (2011) 52 Cal.4th 46, 61.)
Johnson’s reliance on People v. Harris (1998) 60 Cal.App.4th 727 (Harris) is misplaced.In Harris, the defendant was a mental health nurse “accused of preying on women who were vulnerable due to their mental health condition.” (Id.at p. 730.) The trial court allowed the prosecution to offer evidence of a past violent sexual assault on a woman who lived in his residential apartment complex, but “[t]he facts of the prior conduct were redacted to a point that the jury must have come away with a misleading impression of what happened . . . .” (Id. at p. 733.) The jury was given an “altered version of the crime,” in which it heard graphic details about the victim, who had “blood on her vagina and mouth area along with swelling on the right side of her face,” and the defendant, who “had blood ‘on the inside of his thighs and on his penis.’ ” (Id. at p. 734.) Moreover, there was a reference to “rape,” which the trial court struck but also ruled did not justify a mistrial. (Ibid.) The prosecutor’s closing argument relied on the evidence of this past sexual assault to argue that the defendant “ ‘picks on people who can’t or who won’t [fight back]’ ” and “ ‘use[s] whatever means of force necessary’ ” to “ ‘take sex from women.’ ” (Id. at pp. 735–736.)
The Court of Appeal reversed the judgment because the evidence of the sexual assault was unduly prejudicial. (Harris, supra, 60 Cal.App.4th at pp. 741–742.) It found the evidence was “inflammatory in the extreme,” emphasizing that “the ‘taking advantage’ of two emotionally and physically vulnerable women [was] of a significantly different nature and quality than the violent and perverse attack on a stranger,’ ”particularly because the jury heard “an incomplete and distorted description of an event that did not actually occur.” (Id. at p.738.)Furthermore, the violent sexual assault occurred 23 years prior to the charged crimes, which “weigh[ed] strongly in favor of exclusion.” (Id. at p.739.) The appellate court also was not persuaded that the prior acts evidence was probative because “evidence that defendant committed a violent rape of a stranger, as the jury was led to believe, did not bolster [the victim’s] credibility nor detract from the evidence impeaching their stories.” (Id. at p. 740.)The facts inHarris bear no resemblance to the instant case.
Because the trial court did not abuse its discretion in weighing the probative value of the prior conduct evidence against its potential prejudicial effect under Evidence Code section 352, there was no due process violation. (Falsetta, supra, 21 Cal.4th at p. 917; Merriman, supra, 60 Cal.4that pp. 46-47.)
Johnson Fails to Show that Untimely Discovery Violated His Constitutional Rights
Johnson argues that he “encountered multiple discovery abuses” throughout the proceedings and trial that “were so numerous and pervasive” as to violate his constitutional rights. The prosecution concedesthat the disclosure ofevidence in connection with theprior sexual offenses against Adrionna Doe was untimely, but it contendsno other discovery violationsoccurred and the trial court properly addressed the singular discovery violation by instructing the jurythat it should evaluate the effect, if any, of the late disclosure. Contrary to the prosecution’sassertion, the record reveals that it failed to meet several discovery obligations. Nevertheless, Johnson fails to show the trial court erred in addressing the late discovery or that the untimely discovery violated his rights to a fair trial and due process.
Background
Johnson’s defense counsel was diligent in seeking discovery throughout 2022. Although defense counsel had to follow up for months to acquire various documents, including phone searches, Johnson concedes that “[f]inally on November 4, 2022, the prosecutor provided [the] requested records.”
On March 30, 2023, the partiesstipulated the trial had started that day.On April 12, 2023, each side filed motions in limine.The prosecution’s motionsin limine sought, inter alia, to admit evidence of Johnson’sprior conviction for sex trafficking Adrionna Doe as a minor.Acknowledging that it must discloseevidence 30 days before trial, the prosecution argued that “[t]he defense was first notifiedabout theconviction” by the express allegations of Johnson’s prior conviction in the complaints filed in both the Keke and Nia cases. The prosecution contended that “the specific factual allegationsunderlying the conviction” were “a matter of public record,” but it also admitted that certain police reports involving Adrionna Doe “were discovered to the defense on April 4, 2023 and April 11, 2023.” In opposition to the prosecution’s motion in limine, Johnson noted that “[t]rial was stipulated to have started on March 30, 2023” and thereforethe prosecution failed to adhere to the discovery requirements by “wait[ing] until after the trial had commenced to disclose the necessarymaterials.”
On April 18, 2023, Johnson filed a motion to dismiss the case “for egregious discovery violations,”including the late discovery of police reports relating to the incident underlying Johnson’sprior sexual offense against Adrionna Doe. Johnson also argued that the prosecution had failed to timely and fully disclose investigative and police reports concerning Nia. The prosecution opposed the motion to dismiss, arguing the motion “contain[ed] numerous inaccurate or misleading accusations about alleged discovery violations” but “conced[ing] that some statutory deadlines [had] not been met”including the evidenceconcerning Johnson’s prior sexual offense against Adrionna Doe.
On April 27, 2023, the trial court and the parties discussed the motions in limine, reserving the issue of Johnson’s motion to dismiss for another day.As mentioned ante, the court granted the prosecution’s motion in limine to admit evidence of Johnson’s prior sexual offenses against Adrionna Doe.
On May 1, 2023, the trial court held a hearing on the motion to dismissin which it walked through the discovery timeline and alleged discovery violations, including new ones raised in Johnson’s reply to the prosecution’s opposition and supplemental opposition to the motion to dismiss.The court noted several areas where the prosecution had discovered information late, including the disclosure of an expert’s CV, for which the court stated it would consider a late discovery instruction. The court also found the prosecution’s disclosure of Evidence Code section 1108 evidence involving Adrionna Doe was late. But it concluded the late discovery did not warrant exclusion because “there was an awareness of this prior event from the information that was filed, and it has already been a month since we started talking about this on March 30th.”The court stated that it also would consider a late discovery instruction to address the situation. Thus, while the trial court“agree[d]” with Johnson that the prosecution “had obligations that weren’t met” and “the District Attorney’s office did not disclose thematerials that were requested in the informal request fordiscovery,”the courtdetermined that the prosecution’s “sloppy” conduct was not intentional nor involved “Brady information.” Accordingly, the court concluded it was not required to dismiss any charges pursuant to the United States Constitution and therefore it could not dismiss any charge pursuant to section1054.5, subdivision(c).It denied the motion to dismiss but stated that Johnson could file “a request for any remedies” which it would address on a “piece-by-piece” basis.
The trial court further noted that it and the parties “[had] agreed to buildin time to address [the] late disclosed items,” and the court declaredit would “entertain a motion to continue.” Although Johnson declined to waive time, the court delayed jury selection by an additional weekpursuant to Johnson’s request.
At the next hearing a week later, the trial court addressed some outstanding motions in limine, starting with a defense motion seeking to bar the prosecution from presenting “any evidence which should have been, but was not, disclosed to the defense in a timely manner.” The court denied the motion “unless and until, without prejudice, [defense counsel] can identify something that you believe the People had aduty to disclose, but didn’t.” When asked about the court’s previous discovery findings, the court clarified its previous ruling “was in the context of a motion to dismiss” and that it had “specifically said” counsel could “bring to [the court] anyissues where [counsel] feel[s] there has been late discovery . . . .” Counsel contended that “everything . . . brought up in the motion to dismiss was late discovery” and should be excluded. The court disagreed, explaining thatit needed specificity.When counsel restated that he wanted to exclude all the latediscovered items discussed in the motion to dismiss, the court transformed the motion to dismiss to a motion to exclude. The court continued: “Because not everything was [an] obligation of the People to disclose, not everything was necessarily late. So this is where some specificity on your part would be more productive.” Counsel responded that he would “bring it back to the Court’s attention,” and the court accordingly denied the motion without prejudice, reiterating that counsel could “bring it back to the Courtwhen [defense counsel has] something specific” to ask for.
The issue of late discovered evidence was revisited during trial when the prosecution filed a supplemental motion in limineto admit GPS data from Johnson’s Google account on the ground that defense counsel had opened the door during opening argument by implying such evidence would be exculpatory. Even thoughthe prosecutiondiscoveredthe evidence after the start of trial, the court granted the motion because the information was always in Johnson’s possession and because the prosecution producedit after Johnson had raised the specter that it was Bradyevidence. The court expounded: “I have also felt the same frustration that the investigation seems to be ongoing even after witness testimony has begun, but in this particular case, I do not believe [the prosecution] had a choice.”
After almost all the evidence had been presented, the trial court held an afternoon hearing to discuss the jury instructions, which focused on CALCRIM No. 306, the jury instruction regarding late discovery.Johnson asked the court to instruct the jury that “[the] People failed to disclose in a timely fashion the prior statements of Adrionna Doe and the identities and location information about the witnesses to those events.” The court pressed defense counsel to articulate how the late disclosure impacted his ability to defend or investigate the case, and defense counsel explained that reviewing the late disclosures took time away from other matters. The court agreed to give the instruction, finding the late disclosure “prejudicial in [the Evidence Code, section] 1108 context in particular because the statute is clear this needs to be disclosed 30 days before.” The court declined to have the instruction reference “the identities and location information about the witnesses” because it found the prosecution did not owe a duty to provide updated contact information.
The trial court later instructed the jury with CALCRIM No. 306 as follows: “Both the People and the defense must disclose their evidence to the other side before trial within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence to counter opposing evidence or to receive a fair trial. [¶]An attorney for the People failed todisclose the BART police report from 2007 related to Adrionna Doe within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
Following his conviction, Johnson filed a “motion for judgment of acquittal or new trial” based, in part, on the discovery violations.At the hearing on the motion, the trial court found Johnson’s argument that he was denied a fair trial most compelling “with regard todiscovery and timing.” Nonetheless, it found that “beforeany evidence was introduced, there were ample continuance[s] andpostponements to allow [defense counsel] to review thevoluminous materials being brought to [defense counsel’s] attention and toprepare for trial . . . .” It therefore denied the motion.
Discussion
Johnson asserts in the headings of his appellate briefing that “the prosecution’s failure to provide timely and full discovery in compliance with state statutes and federal constitutional requirements deprived[Johnson]of his constitutional rights to a fair trial, confrontation, due process, and effective assistance of counsel.” However, Johnson fails to articulate any cogent legal argument concerning his right to confront witnesses. Nor does he present in his brief how his counsel’s representation fell below an objective standard ofreasonablenessunder prevailing professional norms as required to show ineffective assistance of counsel. (People v. Gray (2005) 37 Cal.4th 168, 206–207.) His failure to do so violates the California Rules of Court, rule 8.204(a)(1)(B) and we treat his general assertions, unsupported by specific argument, as forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Similarly, although Johnson’s headings imply that the prosecution failed to disclose certain evidence, Johnson only discusses late discovery and therefore he forfeits any argument that the prosecution failed to provide “full discovery.” Although we address his due process claim on the merits, the claim is meritless.
Section 1054.1 enumerates a broad list of materials and information that the prosecution must disclose to a criminal defendant. Disclosures must be “made at least 30 days prior to the trial,” or if the information becomes known within the 30 days of trial, “immediately.” (§ 1054.7.) If a prosecutor fails to meet its obligations,subdivision (b) of section 1054.5 suggests several sanctions a court may employ, “including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order.” (§ 1054.5, subd. (b).) Moreover, “the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (Ibid.) However, the statutory discovery scheme expressly prohibits the court from dismissing a charge “pursuant to subdivision (b) unless required to do so by the Constitution of the United States.” (§ 1054.5, subd. (c).) “ ‘We generally review a trial court’s ruling on matters regarding discovery under an abuse of discretion standard.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1105.)
Independent of the statutory discovery scheme, prosecutors have a constitutional mandate to disclose exculpatory material evidence—i.e., Brady evidence—to defendants in criminal cases. (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378; see also Gray v. Netherland (1996) 518 U.S. 152, 168 [Brady evidence is the only substantive discovery mandated by the United States Constitution as “there is no general constitutional right to discovery in a criminal case”].) To establish a Bradyviolationthe defendant must prove that the State suppressed evidence, that the evidence was favorable to defendant, and that there is a “ ‘ “ ‘reasonable probability of a different result’ ” ’ ” if the evidence had not been suppressed. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 176.) We independently review the question whether aBrady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence.” (Ibid.)
Johnson’s argument that the prosecution’s “multiple” and “pervasive” untimely disclosuresviolated his due process rights is conclusory. There is no dispute that the disclosure of prior conduct evidence was untimely andthere is overwhelming evidence that the prosecution discovered and disclosed other evidence after trial had begun.However, while Johnson notes that his motion to dismiss chronicled “eight failures” by the prosecution to timely produce evidence, he only mentions “a 1,653-page report concerning Nia Doe’s phone” disclosed on April 13, 2023. Johnson also vaguely alludes to “700 pages of [untimely] discovery,” citing his reply to the prosecution’s opposition and supplemental opposition to the motion to dismiss. He again fails to provide specific argument establishing that each alleged late production was a discovery violation. Indeed, he does not address, let alone dispute, the trial court’s finding that not everything Johnson cited in his motion to dismiss was late discovery.
But even assuming his allegations concerning the prosecution’s statutory discovery violations are true, Johnson’s constitutional claim fails. Although he referencesBrady, he does not assert that any of the late disclosed evidence was exculpatory nor does he expressly state there was a Brady violation. Instead, the gravamen of Johnson’s due process claim is thathe was denied effective assistance of counsel because his defense counsel could not adequately prepare for trial due to the late disclosed items.We are not persuaded.
The trial court afforded defense counsel extra time to digest the late disclosed evidence, mitigating much of the prejudice, and Johnson declined to waive time when the court offered a continuance. Johnson relies heavily on the fact that trial was stipulated to have commenced on March 30, 2023, but he discounts the postponements and slow pace the court took over the next 6 weeks before a jury was seated. More importantly, Johnson fails to articulate what task was overlooked or what defense his counsel would have been better prepared to present but for the time his counsel spent reviewing late disclosed evidence. Johnson asserts that “it is impossible to judge how defense counsel’s performance might have been more effective if he had not had to contend with thousands of pages of discoverywere dumped on him in the middle of trial, much of which related to the Nia Doe case, which, unbeknownst to him, was about to be dismissed.” We recognize time is a limited resource, but Johnson has not shown there was a reasonable probability that the discovery violations affected the trial’s outcomebased on epistemicuncertainty.
Johnson relies on cases that are inapposite. In Giglio v. U.S. (1972) 405 U.S. 150, 154–155,the Supreme Court held that the government’s nondisclosure of a promise to not prosecute a cooperating witness violated the defendant’s due process rightsbecause evidence of the agreement would be relevant to the jury’s assessment of the witness’s credibility. In People v. Murphy (1963) 59 Cal.2d 818, 824–826, the trial court erred by denying defendant’s motion to continue trial by reason of surprise after the prosecution amended the information in a material respect on the morning of trial. In People v. Johnson (2006) 142 Cal.App.4th 776, 786,the suppression of documents “denied [defendant] the opportunity to impeach” a witness as well as the opportunity to cross examine a gang expert and to contradict the Attorney General’s inference that the witness was a “ ‘neutral bystander.’ ” Similarly, People v. Kasim (1997) 56 Cal.App.4th 1360, 1381,involved the nondisclosure of “significant exculpatory evidence bearing on the credibility of the key prosecution witnesses.” Here, there was no surprise at trial as to the operative information andno exculpatory evidence was suppressed.
Nor doesPeople v. Gonzalez (2006) 38 Cal.4th 932support Johnson’s position. There, the prosecution refused to provide the defendant with the identity of rebuttal witnesses to the defendant’sdisclosed mitigation witnesses, and as a consequencethe defendant did not call the mitigation witnesses at trial. (Id. at pp. 953–955.) The California Supreme Court explained that “[d]enial of discovery of potential rebuttal evidence thwarts defense counsel’s ability to present an intelligent defense and to make an informed tactical decision whether to present mitigating evidence.” (Id. at p. 960; see also Wardius v. Oregon (1973) 412 U.S. 470, 474 [holding due process bars state law requiring notice of defense alibi unless defendant enjoys reciprocal discovery rights].) Our high court found the defense had been prejudiced because there wasa reasonable possibility that defense counsel would have presented the mitigating evidence had he received the requested discovery and a reasonable possibility the verdict would have been different had he done so. (Gonzalez, at pp. 961–962.) In contrast, Johnson does not argue that adenial of discovery placed his counsel into the position of having to make an uninformed tactical decision.
Because Johnson fails to show that the untimely discovery violated his constitutional right to due process, the trial court could not have dismissed any charge. (§ 1054.5, subd. (c).) Johnson also fails to show the court abused its discretion regarding its selection ofa discovery sanction. After quoting the possible discovery sanctions listed in section 1054.5, subdivision (b), Johnson merely states: “the trial court had both the authority and discretion to limit or ameliorate the prejudice from the prosecutor’s failures to provide full and timely discovery.”He makes no argument why the late-discovery instruction was inadequate to cure the prejudice or how the trial court abused its discretion in not selecting another sanction. Because he fails to bear his burden to establish prejudice from any untimely discovery, the judgment must be affirmed. (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.)
There Was No Cumulative Prejudice From the Alleged Errors
Johnson contends that the combined effect of multiple trial court errors rendered his trial fundamentally unfair. We disagree.
“Lengthy criminal trials are rarely perfect, and [a reviewing] court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.] Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) Johnson does not articulate what harmless error standard we should apply, but we need not resolve that question because there are no errors to aggregate.
As discussed ante, the trial court did not err in consolidating the cases against Johnson or in finding evidence of Johnson’s prior sexual offense more prejudicial than probativeunder Evidence Code section 352. Johnson did not establish any error by the trial court in fashioning discovery sanctions, nor did he demonstrate any prejudice of a constitutional dimension from the prosecution’s untimely disclosures. Accordingly, no errors “worked synergistically” to deprive Johnson of a fundamentally fair trial.
Johnson Fails to Prove Prejudicial ErrorIn His Sentencing
Johnson argues that the trial court abused its discretion in denying his motion to strike his prior strike conviction and in imposing the upper term for count 5. We perceive no abuses of discretion, but to the extent the court erred in findingtrue beyond a reasonable doubt an alleged factor in aggravation based on planning and sophistication, we find any error harmless.
Background
The first amended information alleged Johnson sustained a prior strike (§§667, subd.(e)(1), 1170.12, subd.(c)(1)) and a prior serious felony conviction (§667, subd.(a)(1)) for criminal threats (§422) in 2008 and served a prison term for that conviction.The information also alleged Johnson had a prior conviction for human trafficking of a minor for a commercial sex act (§236.1, subd.(c)) in 2008. As to each count, the information alleged seven circumstances in aggravation under Rule 4.421.
Having granted the defense’s request to do so, the trial court bifurcatedany evidence of the prior convictions and aggravating circumstances until after a guilty verdict. Following the jury verdict, Johnson waived a jury trial on the aggravating factors and admitted he suffered the allegedfirst and second prior convictions.Sitting as the fact finder, the court found true two aggravating factors as to each count:the manner in which Johnson committed his crimes indicated planning, sophistication, or professionalism (Rule 4.421(a)(8)), and his prior convictions were numerous or of increasing seriousness (Rule 4.421(b)(2)).
Prior to sentencing, Johnson filed a motion pursuant to section 1385, subdivision (a), to strike his prior strike conviction.The trial court heard argument on the motion, and it “den[ied] [Johnson’s] request to strike the prior conviction, the prior [section] 422 from 2008 under Penal Code section 1385 [subdivision (a)].”The court then heardstatements from Adrionna Doe and Johnson before imposing a sentence. The court found that none of the mitigating factors under section 1170, subdivision (b) applied and only one mitigating factor under Rule 4.423(b)(13) applied (because an enhancement was based on a prior convictionmore than five years old). It stated that it weighed and balanced the applicable factors and facts, and it selected the aggravated termof 12 years for count 5. Because of Johnson’sprior criminal threats felony conviction,the court doubled the sentence to 24 years. The court imposed but stayed (§654) midterm sentences for counts 4 and 6.
The Trial Court Did Not Abuse Its Discretion in Declining to Strike the Prior Strike Conviction
Pursuant tothe Three Strikes law, the determinate termsentence for a defendant who has a pled and proven prior strike conviction is doubled. (§§ 667, subds. (b)–(i), 1170.12.)Under section 1385, subdivision (a), “[t]he judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§1385, subd.(a).) This authority under section 1385, subdivision(a) includes the power to “strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony . . . .” (People v. Williams (1998) 17 Cal.4th 148, 158.)“[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding . . . the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Id. at p. 161.)
“[A] trial court’s discretion to dismiss strikes is not unbounded.” (People v. Dain (2025) 18 Cal.5th 246, 256.) The Three Strikes Law “establishes a sentencing norm,” “carefully circumscribes the trial court’s power to depart from this norm,” and “creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.” (People v. Carmony (2004) 33 Cal.4th 367,378.) “In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances,” such as where the court misunderstood the scope of its discretion, considered impermissible factors, ignored relevant ones, or where no reasonable people could disagree that the defendant falls outside the spirit of the three strikes scheme. (Ibid.; People v. Avila (2020) 57 Cal.App.5th 1134, 1141.) “Because the circumstances must be ‘extraordinary ... by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack’ [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.” (Carmony, at p. 378.)There is no requirement that the court state its reasons for declining to strike a prior. (In re Coley (2012) 55 Cal.4th 524, 560.)
Johnson admits he had one prior strike and that “it was considered ‘serious’ by the black-letter law . . . .” He does not contend the trial court was unaware of its discretion or mischaracterized the record. On our review, nothing in the record shows that the information before the trial court was materially incomplete or inaccurate. Indeed, the court not only recited the evidence that it reviewed and relied on in making its determination, it also invited defense counsel to submit a supplement to the probation report’s factual summary (an invitation that was declined) and the court struck several inaccuracies from the probation report at defense counsel’s request.
Nonetheless, Johnson claims that he falls outside the spirit of the Three Strikes scheme. He urges that his case is “surely . . . one of the least serious of human trafficking cases” because Keke “was already working as a prostitute when she met [Johnson],” because “[Johnson] did not harm or abuse herin any way beyond the bare minimum conduct described in the statute,” and because “[Johnson] knew [Keke] less than two days.” We are unpersuaded.
This is not such an extraordinary case that no reasonable court could disagree with the trial court’s ruling. Johnson was not deterred by a prior conviction for criminal threats. Moreover, that crime accompanied a conviction for human trafficking a minor for commercial sex—a crime which he committed again. It is not inaccurate or unreasonable to conclude he falls within the spirit of the scheme designed to punish recidivists. This conclusion dooms Johnson’s claim, because “ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance.’ ” (Carmony, supra, 33 Cal.4th at p. 378.)
Johnson Fails to Show Prejudicial Error in the Court’s Finding that Two Factors in AggravationWere True
Under section 1170, subdivision (b), the trial court “shall,” in its discretion impose a sentence “not to exceed the middle term” (id., subd. (b)(1)) except “when there are circumstances in aggravation of the crime that justify the imposition of” an upper term sentence, and “the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.” (Id., subd. (b)(2).)
Under California law, “an aggravating circumstance must ‘make[] the offense “distinctively worse than the ordinary.” ’” (Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 89.)“Courts applying that standard have not imagined an abstract, ‘ordinary case’ to determine whether a finding of an aggravating circumstances is warranted by the facts of the case. Rather, they have considered whether the manner of the crime’s commission was distinctively worse ‘when compared to other ways in which such a crime could be committed.’ ” (Ibid.) “When appellate courts have reversed an upper-term sentence on the ground that the cited aggravating circumstance did not make the commission of the crime distinctively worse, they have generally concluded that the circumstance at issue was likely to be present in most any instance of the offense or added little to the wrongfulness already inherent in its commission.” (Id. at p. 90, and cases cited.)
Once aggravating factors are properly proven, “‘[s]entencing courts have wide discretion in weighing aggravating and mitigating factors [citations], and may balance them against each other in “qualitative as well as quantitative terms” [citation].... We must affirm unless there is a clear showing the sentence choice was arbitrary or irrational.’” (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582; cf. People v. Lynch (2024) 16 Cal.5th 730, 767 (Lynch) [discussing “the distinction between the requirement of properly proven facts and the court’s exercise of its discretion when determining the significance of those facts”].) A court need not state its reasons for discounting a mitigating factor. (People v. Salazar (1983) 144 Cal.App.3d 799, 813.)
Johnson’s claim that his prior convictions were not numerous or of increasing seriousness lacks merit. California Rules of Court, rule 4.421(b)(2) specifies that it is an aggravating circumstance that “defendant’s prior convictions ... are numerous or of increasing seriousness.” (Italics added.) The probation report reflected that Johnson had been convicted of the following before suffering the prior strike conviction: misdemeanor battery (§§ 242/243) and misdemeanor attempted trespassing(§§ 602, subd. (l)/664) committed in February 1997 and misdemeanorbattery (§ 242) committed in August 1997 when he was 20 years old; misdemeanor driving on a suspended license (Veh. Code, §14601.1, subd. (a)) committed in 2001 when he was 24 years old; misdemeanor possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) committed in 2003 when he was 26 years old. In 2007, when he was 30 years old, Johnson committed the offense underlying the prior strikeconviction—a felony for making criminal threats (§ 422)—as well as the felony committed against Adrionna Doe for human trafficking her as a minor (§ 236.1, subd. (c)). Although Johnson was sentenced to over 4 years in state prison in 2008 for that conviction, in 2010 he committedmisdemeanordisorderly conduct while under the influence(§ 647, subd. (f)). He then committed the present offense in 2022 at the age of 45 years old. These convictions are numerous. (See e.g.,People v. Searle (1989) 213 Cal.App.3d 1091, 1098, [three prior convictions are numerous].) We also disagree with Johnson that his convictions do not reflect increasing seriousness. Even accepting that his prior strike conviction was of greater seriousness than his present offense, his criminal history revealssomeonewho committedvarious misdemeanors as a young man and then escalated his misconduct to committing felonies in middle age.
In challenging the trial court’s finding true that the crime was carried out in a manner that indicated planning or sophistication, Johnson alleges that “[n]o facts were shown here to demonstrate that this trafficking offense was any worse than the ordinary trafficking offense.” However, he does not adequately lay out a claim challenging the sufficiency of the evidence.
In any event, our review of such a claim is limited. “‘ “In reviewing the sufficiency of the evidence, we must determine ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”[Citation.] We must presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from the evidence. [Citation.] ‘The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on ‘ “isolated bits of evidence.” ’” ’ ” (People v. Ayala (2010) 181 Cal.App.4th 1440, 1448.)
At trial, the prosecution argued the planning and sophistication factor was evidenced by Johnson’s use of a female recruiter, by a process of grooming Keke through buying her clothes and being nice, by preparing Keke for sex work by getting her nails done. On appeal, Johnson not only points to isolated bits of testimony to dispute the prosecution’s case, but the testimony he cites does not appear to state what he claims it does. For example, the prosecution’s expert did not “explain[] that pimps typically offered shelter, food, and/or protection to the women they worked with.” Rather, the expert explained that a trafficker and exploiter of children may seek to exchange sex for non-monetary things, including shelter, basic needs, or drugs. Later, when describing strategies traffickers use to sexually exploit youth, the expert opined that there are “a variety of strategies” and “[t]here are certain things thatare common between the different type[s] [of] different strategies.” The prosecutor then posed a hypothetical in which atrafficker was “very nice” to a 16 year old over a course of days and asked whether, in the expert’s experience, that was “consistent or inconsistent” with the behavior of victims who stay with a trafficker. The expert responded that “it can be,” explaining that “[s]ome people are nice tominors, because they actually like them” whereas others are nice to minors as a strategy for grooming them.
But even if we accept that the level of planning and sophistication in the present case is not distinctively worse compared to other ways the crime could be committed, we find any error harmless. Johnson is mistaken that the harmless beyond a reasonable doubt standard applies here.Lynch, supra, 16 Cal.5th at page 768, on which he relies, holdsthat this standard applies to a claim that the sentence rests at least in part on an aggravating circumstance that was established in violation of the defendant’s right to jury trial under the Sixth Amendment. BecauseLynch was sentenced prior to the amendments to 1170, subdivision (b) that prohibited imposition of upper-term sentences in the absence of jury findings or a defendant’s stipulation to aggravating facts (id. at pp. 744–745, 748), Lynch “was not asked to expressly waive jury trial on aggravating circumstances.” (Id. at p. 769.)Here, Johnson was sentenced after the amendments to section 1170, subdivision (b), and he waived his right to a jury trial, so the Sixth Amendment concerns at issue in Lynch are not present. (See id. at p. 768.)While he argues that the aggravating circumstance was substantivelyimproper, he does not claim that there was a constitutional violation in the procedure by which it was found true—a court trial following a valid jury trial waiver.
“ ‘When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper.’” (Lynch, supra, 16 Cal.5th at p. 760, fn. 14.) Put differently, “[w]hen a trial court has abused its discretion in choosing among available sentencing options, such as by relying on an improper sentencing factor, a reviewing court must still affirm unless ‘the error complained of has resulted in a miscarriage of justice.’” (People v. McDaniels (2018) 22 Cal.App.5th 420, 426; Cal. Const., art.VI, §13.) “In these situations, the trial court has revealed which sentencing choice it prefers, and the reviewing court must decide whether there is a reasonable probability that the trial court’s lawful exercise of discretion on remand will lead it to make a different choice.” (McDaniels, at p.426.)
The record clearlyshows remand would be an idle act.At sentencing, defense counsel again argued that Johnson’s crime “doesn’t rise to the level of the worst of this type of crime” and urged the trial court “to make an apples to apples comparison.” The court responded that “[it] heard these arguments when we had the Courttrial on the aggravating factors. So [the court] know[s] what [defense counsel’s] positionis. [The court][doesn’t] necessarily agree.”The court gave defense counsel the last word, and defense counsel maintained it was a “mitigated case”and “the determination should be made of . . . not imposing the aggravated term.” The court responded that it not only considered “the facts of this underlying offense” but also “Mr. Johnson has spent decades building up arecord.” In stating the sentence, the court expounded: “The reasons for the Courtselecting the aggravated term are numerous, but [the court] can rely onthe aggravating factors that were proven beyond a reasonabledoubt that the Court found true.” In view of that colloquy, it is clear the court would reimpose an aggravated sentence solely on the aggravating factor that Johnson’s convictions were numerous and of increasing seriousness. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand where trial court indicated defendant was “ ‘the kind of individual the law was intended to keep off the street as long as possible’ ”].)
DISPOSITION
The judgment is affirmed.

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Moorman, J.*

WE CONCUR:

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Brown, P. J.

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Goldman, J.