People v. McNeely CA2/4 ( 2016 )


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  • Filed 4/13/16 P. v. McNeely CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    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 This opinion has not been certified for publication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
    SECOND APPELLATE DISTRICT
    DIVISION FOUR
    THE PEOPLE,                                                           B260602
    (Los Angeles County
    Plaintiff and Respondent,                                    Super. Ct. No. KA103336)
    v.
    RUFUS ALEX MCNEELY,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los Angeles County,
    Victor D. Martinez, Judge. Affirmed.
    Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant
    and Appellant.
    Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
    Attorney General, Lance E. Winters, Senior Assistant Attorney General, Victoria B.
    Wilson and Jessica C. Owen, Deputy Attorneys General, for Plaintiff and
    Respondent.
    Appellant Rufus Alex McNeely challenges his convictions for pimping,
    pandering, and human trafficking of a minor for a sex act. He contends that the jury
    was misinstructed, that his trial testimony was subject to improper impeachment,
    and that his counsel rendered ineffective assistance. We reject his contentions and
    affirm.
    RELEVANT PROCEDURAL BACKGROUND
    On July 28, 2014, an amended information was filed, alleging that appellant
    had engaged in offenses involving L.D. and Ebony Bolden. Regarding L.D., the
    information charged appellant in count 1 with human trafficking of a minor for a
    sex act (Pen. Code, § 236.1, subd. (c)(1)), and in count 2 with pandering by
    procuring a minor over the age of 16 years (Pen. Code, § 266i, subd. (b)(1)).1
    Regarding Bolden, the information charged appellant in count 3 with pimping
    (§ 266h, subd. (a)). The information alleged under count 1 that appellant had used
    force or fear in connection with the offense (§ 236.1, subd. (c)(2)). Accompanying
    all the counts was an allegation that appellant had suffered a prior conviction
    constituting a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12,
    subds. (a)-(d)). Appellant pleaded not guilty and denied the special allegations.
    After a jury found appellant guilty as charged and found the “force [or] fear”
    allegation to be true, appellant admitted the prior conviction. Appellant filed a
    motion under People v. Superior Court (Romero) (1996) 
    13 Cal.4th 497
     to strike
    that strike, which the trial court granted solely with respect to count 1. The court
    imposed a sentence totaling 23 years to life in prison. This appeal followed.
    1
    All further statutory citations are to the Penal Code, unless otherwise indicated.
    2
    FACTS
    A. Prosecution Evidence
    1. 2012 Incident Involving Bolden
    El Monte Police Department Lieutenant Christopher Cano testified that on
    November 12, 2012, he was traveling in a police vehicle with other officers when
    he saw Bolden loitering near a motel. Bolden’s manner of dress suggested that she
    was engaged in prostitution. After parking, the officers watched her.
    When an SUV approached Bolden, she talked to the driver and entered the
    SUV. As she did so, she threw a key down onto the parking lot. After Bolden was
    driven away in the SUV, appellant left a van parked nearby, picked up the key, used
    it to enter a motel room, and returned to the van. The SUV soon returned, and the
    driver and Bolden entered the same motel room, where they stayed for 10 to 15
    minutes before leaving the room. The driver departed in the SUV, and appellant
    and Bolden re-entered the motel room. When they emerged a few minutes later, the
    officers detained them.
    According to Cano, certain social media Web sites are involved in the
    solicitation of prostitution. At one of those sites, the officer found Bolden’s picture
    with a suggested “donation[],” which Cano testified was the expected price of
    sexual services. Accompanying the picture, was an advertisement stating, “[k]inky
    ebony princess, El Monte in-calls and out-calls, 24.” The advertisement described
    Ebony, and asserted: “If you like erotic women, then I’m the one for you. No
    rush.” The advertisement further stated that she would send real pictures of herself
    upon request.
    3
    El Monte Police Department Officers Richard Gonzalez and Rigoberto
    Polanco testified that when detained, Bolden had $4.83 and appellant had $901.
    According to the officers, the motel room was registered in Bolden’s name.
    2. 2013 Events Involving L.D. and Bolden
    L.D. testified that she was born in December 1996. Prior to meeting
    appellant, she once engaged in prostitution, but decided that she did not want to do
    it again. In early September 2013, L.D. was 16 and living with her family in
    Oakland. She encountered appellant during a “meet and chat” party line phone
    conversation. L.D. initially told appellant she was 18. After she remarked that
    problems in her family home made her want to move out, appellant said he would
    take care of her. L.D. decided to leave home.
    L.D. met appellant at a restaurant near her house. After they entered his car,
    he said she was attractive, and rubbed her inner thigh. At some point, L.D. told
    appellant she was 16. He replied that “he didn’t want to get into trouble about it,
    but . . . nobody ha[d] to know about it.” Appellant drove L.D. to his house in
    Richmond, where they engaged in sex.
    The next morning, appellant drove L.D. to Los Angeles. During the trip, he
    told her that she had to earn a specified amount of money in a week through
    prostitution. He told her the sex acts she was expected to perform and the prices
    she should charge for them. He also instructed her regarding how to talk to her
    customers.
    After L.D. arrived in Los Angeles, she met Bolden, who created an Internet
    advertisement for her. Shortly after L.D. arrived in Los Angeles, Bolden told her
    that appellant could be “mean at times,” which made L.D. fearful of him. For
    4
    approximately two weeks, L.D. lived with appellant, Bolden, and another woman
    named Jazmine in motel rooms, which they changed every day. Whenever they
    moved to a new motel, appellant posted an advertisement identifying L.D.’s
    location so that customers could arrange meetings with her by text messaging.
    Appellant also drove her and the two other women to locations where they worked
    as prostitutes. According to L.D., Bolden was the “bottom girl,” that is, the person
    who supervised the other women when appellant was absent.
    During the two-week period, L.D. received money in exchange for sex acts
    approximately 20 times. L.D. had “in call” meetings -- encounters in which the
    client came to her location -- and “out call” meetings -- encounters in which she
    went to the client’s location. During meetings with clients, at appellant’s
    instruction, she usually turned on her phone in order to allow appellant to hear what
    was “going on.” She always gave appellant her earnings, and kept none. When
    clients texted her for services, appellant sometimes helped her draft replies. If L.D.
    failed to respond promptly to a text, he would yell or scream and call her a “bitch.”
    At some point, L.D. decided she no longer wanted to work as a prostitute, but
    she did not seek help from the police because appellant was usually nearby. In late
    September, L.D. had an argument with Bolden when appellant was not present.
    Later, appellant pulled L.D. into a motel room, threw her on the bed, and slapped
    her face three times.
    After that incident, L.D. posted on Facebook that she had been “kidnapped”
    and brought to Los Angeles against her will. On September 27, 2013, when
    appellant left her in Claremont to earn money, L.D. called the police. At the request
    of police officers, L.D. phoned appellant to discuss a $300 “job,” and engaged in
    text messaging with him. By text message, appellant said that L.D. was “playing
    5
    games” by her Facebook posting. When L.D. said she wanted to go home,
    appellant replied he would take her home or buy a bus ticket for her, but also tried
    to persuade her to stay. In a text message, he stated, “I want you to be happy and be
    my woman and be my ho and be my friend.” L.D. understood the term “ho” to
    refer to her work as a prostitute.
    At the police officers’ request, L.D. attempted to lure appellant to a
    restaurant. Before appellant agreed to meet her at the restaurant, she complied with
    appellant’s demands for photos of herself and her surroundings, including a picture
    of her holding some money. When appellant arrived at the restaurant, he noticed
    police officers and drove away at high speed.
    The prosecution presented evidence that on September 27, 2013, law
    enforcement officials attempted to arrest appellant at a restaurant. In a marked
    police car with flashing lights and other vehicles, they pursued appellant’s vehicle,
    which at times drove more than 100 miles per hour. Because appellant’s vehicle
    was driving dangerously, the chase was terminated. Later, on October 2, 2013, in
    an undercover operation, officers determined that Bolden was working as a
    prostitute at a motel. Appellant was arrested at that motel.
    Following appellant’s arrest, investigating officers found numerous hotel
    receipts and a Motel 6 directory in his vehicle. They also extracted information
    from L.D.’s and appellant’s cellphones regarding calls and text messages. L.D.’s
    phone reflected more than 20 calls and more than 30 text messages involving
    appellant’s phone. The phone calls began approximately two weeks before
    September 27, 2013. Appellant’s phone also disclosed calls and texts messages
    involving L.D.’s phone. L.D.’s phone contained pictures of appellant, and
    appellant’s phone contained pictures of L.D.
    6
    B. Defense Evidence
    Appellant testified that prior to September 2013, he lived in Richmond,
    where he worked as a caregiver for elderly people. At some point, he developed a
    romantic relationship with Bolden, and occasionally travelled to Los Angeles to see
    her. In November 2012, appellant visited Bolden at a motel where she was staying.
    He denied any awareness that she was involved in prostitution. According to
    appellant, he believed that she was working as a stripper. After his November 12,
    2012 arrest at the motel, he was released and returned home.
    Appellant further testified that in September 2013, he talked to L.D. on a chat
    line restricted to persons over the age of 18. According to appellant, L.D. said that
    she was 18 “going on 19.” After meeting her, he drove her to his house, where they
    had sex. He then dropped her off near her house.
    Appellant further testified that a week later, L.D. phoned him and asked to
    return to his house. Appellant permitted her to stay there while he visited San
    Francisco for two days. When he returned and said that he had to drive to Los
    Angeles in order to testify as a victim in a criminal action, she asked to accompany
    him. According to appellant, during the trip, he asked nothing more of L.D. than to
    refrain from telling Bolden that they had engaged in sex.
    Appellant further testified that in Los Angeles, he stayed with Bolden in a
    motel room, and L.D. stayed in another motel room. Appellant devoted himself to
    the criminal action, and had little contact with L.D., who sometimes phoned and
    texted him. He acknowledged that he knew she was engaged in prostitution, but
    denied that he asked her to work as a prostitute or that he sought her earnings as a
    prostitution. According to appellant, he received no money from L.D., aside from
    7
    repayment for room rent he gave her and some personal items he bought for her.
    Appellant denied ever threatening or hitting L.D.
    Appellant also denied receiving any money from Bolden or Jazmine arising
    from prostitution. He acknowledged that Bolden texted him daily to describe “what
    was going on,” but maintained that she did so only to let him know that she was
    “safe.”
    Appellant further testified that because Bolden did not like L.D., he offered
    to help L.D. return to Oakland, but she said that she had “nowhere to go.” He soon
    learned that L.D. had falsely accused him of kidnapping her. After agreeing to
    meet L.D. at a restaurant, he went there, thought L.D. was acting “funny,” and
    drove away quickly. He denied seeing police vehicles chasing him.
    DISCUSSION
    Appellant contends (1) that the trial court improperly failed to instruct the
    jury regarding lesser included offenses of the crimes charged in counts 1 and 2, (2)
    that the unanimity instruction given in connection with count 3 was defective,
    (3) that the trial court improperly permitted him to be impeached with the
    circumstances surrounding his prior felony conviction, and (4) that he received
    ineffective assistance of counsel. For the reasons discussed below, we conclude
    that he has shown no reversible error.
    A. Instructions Regarding Lesser Included Offense
    Appellant contends the trial court engaged in prejudicial error by failing to
    instruct the jury regarding contributing to the delinquency of a minor (§ 272, subd.
    (a)(1)) as a lesser included offense of human trafficking of a minor for a sex act
    8
    (§ 236.1, subd. (c)(1)), as charged in count 1, and pandering by procuring a minor
    16 years of age or older (§ 266i, subd. (b)(1)), as charged in count 2. As explained
    below, we disagree.
    1.     Governing Principles
    Appellant did not request instructions on lesser included offenses.
    Nevertheless, the trial court is obligated to instruct sua sponte on lesser included
    offenses that the evidence tends to prove. (People v. Breverman (1998) 
    19 Cal.4th 142
    , 154-155 (Breverman).) For purposes of this rule, courts apply the so-called
    “accusatory pleading” test, which “looks to whether ‘“‘the charging allegations of
    the accusatory pleading include language describing the [charged] offense in such a
    way that if committed as specified [the candidate] lesser offense is necessarily
    committed.’”’” (People v. Montoya (2004) 
    33 Cal.4th 1031
    , 1035, quoting People
    v. Lopez (1998) 
    19 Cal.4th 282
    , 288-289.) The court must instruct on any lesser
    included offense for which there is substantial evidence to support a conviction
    (Breverman, 
    supra,
     19 Cal.4th at p. 162), but not if the pertinent evidence is
    “minimal and insubstantial” (People v. Springfield (1993) 
    13 Cal.App.4th 1674
    ,
    1680). “In deciding whether evidence is ‘substantial’ in this context, a court
    determines only its bare legal sufficiency, not its weight.” (People v. Moye (2009)
    
    47 Cal.4th 537
    , 556.) When substantial evidence supports an instruction on a lesser
    included offense, the failure to so instruct is assessed for prejudice under People v.
    Watson (1956) 
    46 Cal.2d 818
     (Watson). (Breverman, 
    supra, at pp. 148-149
    .)
    2.     Lesser Included Offense
    We begin by examining whether the offenses charged in counts 1 and 2
    necessarily included the offense of contributing to the delinquency of a minor, as
    9
    set forth in section 272, subdivision (a)(1). Under that statute, it is a misdemeanor
    to cause, encourage, or contribute to the dependency or delinquency of a minor, that
    is, to render the minor subject to the jurisdiction of the juvenile court under sections
    300, 601, or 602 of the Welfare and Institutions Code.2
    The offenses alleged in counts 1 and 2 address the participation of minors in
    prostitution. Count 1 charged appellant with human trafficking of a minor for a sex
    act, as set forth in section 236.1, subdivision (c)(1). Under that statute, it is a felony
    to “cause[], induce[], persuade[], or attempt[s] to cause” a minor to “engage in a
    commercial sex act,” with an intent to violate enumerated statutes, including
    sections 266h, 266i, and 267.3 To the extent those statutes address victims who are
    minors, they proscribe pimping (§ 266h), pandering (§ 266i), and abduction for the
    purpose of prostitution (§ 267), and are violated regardless of whether the
    2
    Subdivision (a)(1) of section 272 states: “Every person who commits any act
    or omits the performance of any duty, which act or omission causes or tends to
    cause or encourage any person under the age of 18 years to come within the
    provisions of [s]ection 300, 601, or 602 of the Welfare and Institutions Code or
    which act or omission contributes thereto, or any person who, by any act or
    omission, or by threats, commands, or persuasion, induces or endeavors to induce
    any person under the age of 18 years or any ward or dependent child of the juvenile
    court to fail or refuse to conform to a lawful order of the juvenile court, or to do or
    to perform any act or to follow any course of conduct or to so live as would cause
    or manifestly tend to cause that person to become or to remain a person within the
    provisions of section 300, 601, or 602 of the Welfare and Institutions Code, is
    guilty of a misdemeanor . . . .”
    3     Subdivision (c)(1) of section 236.1 states in pertinent part: “Any person who
    causes, induces, or persuades, or attempts to cause, induce, or persuade, a person
    who is a minor at the time of the commission of the offense to engage in a
    commercial sex act, with the intent to effect or maintain a violation of [s]ection 266,
    266h, 266i, 266j, 267, 311.1, 311.2, 311.3, 311.4, 311.5, 311.6, or 518 is guilty of
    human trafficking.”
    10
    defendant reasonably believed that the victim was not a minor. (People v. Branch
    (2010) 
    184 Cal.App.4th 516
    , 522 [§§ 266h, 266i]; People v. Dolan (1892) 
    96 Cal. 315
    , 320-321 [§ 267].) Similarly, a mistake regarding the victim’s age is not a
    defense regarding a violation of section 236.1. (§ 236.1, subd. (f).)
    Count 2 specifically charged appellant with pandering by procuring a minor
    over the age of 16 years, as specified in section 266i, subdivision (b)(1). That
    statute establishes that it is a felony to procure a minor of 16 years or older for
    purposes of prostitution (§ 266i, subds. (a)(1), (b)(1)).
    Under the accusatory pleading test, counts 1 and 2 encompassed the offense
    of contributing to the delinquency of a minor as lesser included offenses. Because
    count 2 described L.D. as “a minor over age 16,” the pandering offense charged in
    that count necessarily included contributing to the delinquency of a minor. (People
    v. Mathis (1985) 
    173 Cal.App.3d 1251
    , 1254-1255, 1257 (Mathis), capitalization
    omitted.) The same is true of count 1. The charging allegations under count 1 state
    that L.D. was less than 18 years of age when appellant violated section 236.1 by
    causing or inducing her to engage a commercial sex act, as defined in sections
    266h, 266i, and 267. Subdivision (b)(2) of Welfare and Institutions Code section
    300 provides that children are subject to the jurisdiction of the juvenile court when
    they are sexually trafficked, as described in section 236.1, and their parents have
    not protected them. Accordingly, under count 1, the misconduct alleged against
    appellant necessarily rendered L.D. subject to the jurisdiction of the juvenile court.
    As respondent acknowledges, the charged offense thus included contributing to the
    delinquency of a minor as a lesser included offense.
    11
    3.    No Duty to Instruct
    We turn to whether the trial court was obliged to instruct the jury regarding
    contributing to the delinquency of a minor. Generally, the court need not instruct
    on a lesser included offense when the defendant completely denies the charged
    offense, and no evidence reasonably supports the inference that the defendant
    committed only the lesser included offense. (People v. Sinclair (1998) 
    64 Cal.App.4th 1012
    , 1019-1020.) That is the case here. As explained below, the jury
    heard only two versions of appellant’s relationship with L.D., neither of which
    supported an instruction regarding contributing to the delinquency of a minor.
    The prosecution’s account of appellant’s relationship with L.D. relied
    primarily on L.D. herself, who testified that despite appellant’s knowledge that she
    was 16 years old, he drove her to Los Angeles, where he put her to work as a
    prostitute, and used violence to regulate her conduct. The testimony, if credited by
    the jury, necessarily established the offenses charged in counts 1 and 2, each of
    which requires as an element a specific intent to induce someone to engage in
    illegal sex acts. (People v. Zambia (2011) 
    51 Cal.4th 965
    , 980 [under section 266i,
    pandering is a specific intent crime]; Mathis, supra, 173 Cal.App.3d at p. 1256
    [same]; see In re M.D. (2014) 
    231 Cal.App.4th 993
    , 1003 [under section 236.1,
    human trafficker must act “with the intent to effect or maintain a violation” of
    enumerated statutes specifying sex crimes].)
    Appellant’s account contradicted L.D.’s but did not support an instruction on
    contributing to the delinquency of a minor, as set forth in section 272. Generally, a
    person unrelated to a minor who is “simply present” when the minor engages in
    misconduct does not commit the offense, absent a duty of care or evidence that the
    person caused or contributed to the misconduct. (Ronald M. v. White (1980) 112
    
    12 Cal.App.3d 473
    , 476 (Ronald M.) [juveniles who were “simply present” with
    intoxicated minor driving car did not violate section 272, as there was no evidence
    they supplied alcohol to minor]; In re Jose O. (2014) 
    232 Cal.App.4th 128
    , 133-134
    [juvenile who socialized with minor, was present while she was intoxicated, and
    fled with her when she was pursued did not violate section 272 because there was
    no evidence he contributed to, or caused, her misconduct]; cf. Williams v. Garcetti
    (1993) 
    5 Cal.4th 561
    , 572-575 [parents contravene section 272 when they are
    criminally negligent regarding their children’s misconduct].)
    According to appellant’s testimony, he was “simply present” while L.D.
    worked as a prostitute (Ronald M., supra, 112 Cal.App.3d at 476). She allegedly
    told him that she was 18 “going on 19.” At her request, he permitted her to
    accompany him to Los Angeles, where he attended solely to his own affairs.
    Because L.D. had left her home and had little money, he initially bought her some
    clothes and personal items, and paid for her motel room, but she later repaid him.
    He also sometimes drove her to various places. He acknowledged that at some
    point he learned from her text messages that she was engaged in prostitution, but
    denied any involvement in that activity. He maintained that he never asked L.D. to
    work as a prostitute, never managed or directed her, never sought to share in her
    earnings, and never hit or threatened her.
    Appellant’s testimony, taken as a whole, does not support an instruction on
    contributing to the delinquency of a minor. Nor does the record disclose a
    reasonable basis for the jury to credit parts of L.D.’s and appellant’s accounts, while
    rejecting others, in a manner that might support an instruction on contributing to the
    delinquency of a minor. As noted above (see pt. A.2. of the Discussion, ante),
    appellant’s liability for the offenses charged in counts 1 and 2 did not hinge on
    13
    whether he reasonably believed that L.D. was a minor. Nothing in the record
    otherwise suggests how the jury might reasonably have concluded that appellant
    was more than “simply present” with respect to L.D.’s prostitution -- and thus
    culpable of contributing to the delinquency of a minor -- but lacked the specific
    intent establishing the offenses charged in counts 1 and 2, that is, the intent to have
    her work as a prostitute. Accordingly, the trial court was not obliged to instruct the
    jury regarding contributing to the delinquency of a minor as a lesser included
    offense under counts 1 and 2. (People v. Wyatt (2012) 
    55 Cal.4th 694
    , 703-704
    [trial court did not err in failing to instruct on lesser included offense when jury
    heard different accounts of incident from prosecution and defendant, neither of
    which supported instruction].)4
    4.     No Prejudice
    Furthermore, even had the trial court been required to instruct the jury
    regarding contributing to the delinquency of a minor, we would discern no
    prejudice from that error. In this context, review for prejudice “focuses not on what
    a reasonable jury could do, but what such a jury is likely to have done in the
    absence of the error under consideration. In making that evaluation, an appellate
    court may consider, among other things, whether the evidence supporting the
    existing judgment is so relatively strong, and the evidence supporting a different
    4      We recognize that the trial evidence indisputably showed that appellant
    engaged in sex with L.D. in Richmond, prior to their trip to Los Angeles. Although
    such conduct potentially constitutes contributing to the delinquency of a minor
    when the defendant lacks a reasonable belief that the minor is 18 years or older (see
    People v. Atchison (1978) 
    22 Cal.3d 181
    , 183), neither count 1 nor count 2 charged
    any crime relating to that incident. Accordingly, the incident did not support an
    instruction regarding contributing to the delinquency of a minor.
    14
    outcome is so comparatively weak, that there is no reasonable probability the error
    of which the defendant complains affected the result.” (Breverman, supra, 19
    Cal.4th at p.177.)
    Under that standard, any failure to instruct regarding lesser included offenses
    was harmless, as the evidence establishing appellant’s guilt under counts 1 and 2
    was compelling. The prosecution’s evidence regarding the offenses charged in
    counts 1 and 2 was very strong, even though it relied primarily on a single witness,
    namely, L.D. Her account of appellant’s role in her prostitution was corroborated
    by the prosecution’s evidence regarding the November 2012 incident involving
    Bolden; her account of the events preceding the unsuccessful attempt to arrest
    appellant on September 27, 2013 was corroborated by testimony from several law
    enforcement officials.
    In contrast, appellant’s evidence regarding his relationship with L.D. was
    weak, as his testimony was subject to impeachment on some matters, and was
    manifestly implausible with respect to several others. During appellant’s cross-
    examination, the prosecution presented excerpts from a police interview following
    his arrest. In the interview, appellant stated that he first met L.D. in Los Angeles,
    not the “Bay area.” When examined regarding L.D.’s numerous text messages to
    him detailing sexual services she had provided and problems with customers,
    appellant said that she was merely “letting [him] know what she was doing and
    [that] she was safe.” In connection with appellant’s text message to L.D. stating “I
    want you to be . . . my ho,” appellant said that his remark was intended just “to get
    her to pick up the phone.” Appellant further maintained that on September 27,
    2013, after agreeing to meet L.D. at a restaurant, he decided not to let her enter his
    car, and noticed no police cars pursuing him as he drove away from the restaurant,
    15
    as “[he] was listening to music.” On this record, the failure to instruct the jury
    regarding contributing to the delinquency of a minor was harmless, as there is no
    reasonable likelihood that those instructions would have resulted in an outcome
    more favorable to appellant. In sum, appellant has shown no instructional error
    relating to lesser included offenses.
    B. Unanimity Instruction
    Appellant contends the trial court provided a defective unanimity instruction
    relating to count 3, which charged appellant with pimping with respect to Bolden
    (§ 266h, subd. (a)). As discussed below, he has shown no reversible error.
    1.      Governing Principles
    The principles applicable to unanimity instructions stem from the
    “‘constitutionally based concept that “the defendant is entitled to a verdict in which
    12 jurors concur, beyond a reasonable doubt, as to each count charged.”’” “‘From
    this constitutional underpinning, four principles have emerged.’” (People v.
    Jenkins (1994) 
    29 Cal.App.4th 287
    , 298 (Jenkins), quoting People v. Melendez
    (1990) 
    224 Cal.App.3d 1420
    , 1427-1428 (Melendez), disapproved on another
    ground in People v. Majors (1998) 
    18 Cal.4th 385
    , 408.)
    “‘First, if the prosecution shows several acts and each act is a separate
    offense, a unanimity instruction is required.’” (Jenkins, supra, 29 Cal.App.4th at
    p. 298, quoting Melendez, supra, 224 Cal.App.3d at p. 1428.) Second, no
    unanimity instruction is required when the case falls within so-called “‘continuous
    course of conduct exception.’” (Jenkins, supra, at p. 299.) That exception arises
    16
    when the pertinent acts are so closely connected, by law or fact, “that they form part
    of one and the same transaction, and thus one offense. [Citation.]” (People v.
    Thompson (1984) 
    160 Cal.App.3d 220
    , 224 (Thompson).) Third, “‘the jury is not
    required to agree on the specific ‘theory’ of guilt. [Citation.]’” (Jenkins, supra, at
    p. 299, quoting Melendez, supra, at p. 1432.) That exception is applicable when the
    evidence shows a single incident of misconduct, but the statute establishing an
    offense specifies two or more distinct ways in which the offense can be committed.
    (People v. Sutherland (1993) 
    17 Cal.App.4th 602
    , 618 (Sutherland).) Fourth, the
    failure to give a unanimity instruction is subject to harmless error analysis (see
    Jenkins, supra, at p. 298), although there is a division of opinion whether prejudice
    is assessed under the test in Watson or the more stringent test for federal
    constitutional error in Chapman v. California (1967) 
    386 U.S. 18
    , 24 (People v.
    Hernandez (2013) 
    217 Cal.App.4th 559
    , 576 (Hernandez)).
    Subdivision (a) of section 266h provides: “[A]ny person who, knowing
    another person is a prostitute, lives or derives support or maintenance in whole or in
    part from the earnings or proceeds of the person’s prostitution, . . . or who solicits
    or receives compensation for soliciting for the person, is guilty of pimping, a felony
    . . . .” The statute “can be violated in either of two basic ways: (1) by deriving
    support from the earnings of another’s act of prostitution or (2) by soliciting.”
    (People v. McNulty (1988) 
    202 Cal.App.3d 624
    , 630; see People v. Smith (1955) 
    44 Cal.2d 77
    , 78-81.) Under the statute, pimping may be predicated on a single act of
    prostitution. (People v. Jackson (1980) 
    114 Cal.App.3d 207
    , 209.) In addition,
    pimping may be charged as a “course of conduct” crime in which an entire course
    of conduct is subject to punishment as a single violation of the statute. (See
    Thompson, supra, 160 Cal.App.3d at pp. 224-226.) In such cases, no unanimity
    17
    instruction is required if the defendant’s acts, as established at trial, constitute “‘one
    and the same transaction . . . .’” (Jenkins, supra, 29 Cal.App.4th at p. 299, quoting
    Thompson, supra, 160 Cal.App.3d at p. 224.)
    2.      Underlying Proceedings
    The original and amended informations alleged under count 3 that “[o]n or
    about November 12, 2012,” appellant engaged in pimping with respect to Bolden
    by deriving support from her prostitution and by receiving compensation for
    soliciting for her. During opening statements, the prosecutor described appellant’s
    November 12, 2012 arrest in El Monte, noting that police discovered that appellant
    had approximately $900 in cash while Bolden had less than $5. The prosecutor
    characterized count 3 as “that pimping charge back in El Monte.”
    Later, in instructing the jury regarding count 3, the trial court stated: “To
    prove that [appellant] is guilty of [pimping], the People must prove that: [¶] 1.
    [Appellant] knew that . . . Bolden was a prostitute; [¶] 2A. The money that []
    Bolden earned as a prostitute supported [appellant], in whole or in part; [¶] OR [¶]
    2B. [Appellant] asked for payment or received payment for soliciting prostitution
    customers for . . . Bolden.”
    The court further instructed the jury: “The People have presented evidence
    of more than one act to prove the defendant committed the offenses charged in
    counts 1, 2, and 3. The alternative acts are designated by the use of the word “OR”
    when the elements of the offenses are listed. You must not find [appellant] guilty
    unless you all agree that the People have proved beyond a reasonable doubt that the
    18
    defendant committed at least one of these acts and you all agree on which act he
    committed.”
    In addressing count 3 in closing arguments, the prosecutor focused
    exclusively on the November 12, 2012 incident, described the evidence relating to
    that incident, and argued that it showed appellant was then engaged in pimping.
    After describing appellant’s activities during that incident, the prosecutor
    underscored that when appellant and Bolden were arrested, appellant had
    approximately $900 in cash while Bolden had less than $5.
    Characterizing count 3 as “something that happened in 2012,” defense
    counsel contended the prosecution had failed to prove that appellant derived
    support from Bolden’s prostitution, arguing there was no evidence that Bolden
    supplied the $900 in appellant’s possession when he was arrested. Defense counsel
    also noted that no money was found in appellant’s car when he was arrested again
    in 2013.
    3.    Analysis
    Appellant contends the unanimity instruction was defective with respect to
    count 3. He maintains that under the instructions relating to that count, the only
    proper basis for a verdict of guilt was a determination that appellant had derived
    support from Bolden’s prostitution, and argues there was no evidence that appellant
    solicited customers for Bolden. He further argues the trial evidence disclosed two
    separate potential acts of support from Bolden’s prostitution during the November
    12, 2012 incident. Aside from appellant’s possession of approximately $900 when
    arrested, there was evidence that appellant was then Bolden’s guest in the motel.
    As appellant notes, he testified that he usually stayed with Bolden when he visited
    19
    her. Appellant thus argues that the unanimity instruction improperly failed to
    inform the jury that it must unanimously agree on the precise November 12, 2012
    act of support, namely, the receipt of cash from Bolden or the benefit he derived
    from being a guest in her motel. As explained below, appellant has shown no
    prejudicial defect in the unanimity instruction.
    Generally, the adequacy of any instruction given must be judged in the
    context of all the instructions. (5 Witkin & Epstein, Cal. Criminal Law (4th ed.
    2012) Criminal Trial, § 747, pp. 1164-1166.) Thus, an instruction is not assessed in
    isolation, but must be viewed in the context of the overall charge. (People v.
    Reliford (2003) 
    29 Cal.4th 1007
    , 1013.) When an instruction is potentially
    ambiguous or misleading, the instruction is not error unless there is a reasonable
    likelihood that the jurors misunderstood or misapplied the pertinent instruction.
    (Ibid.; People v. Avena (1996) 
    13 Cal.4th 394
    , 416-417.)
    Here, the central premise of appellant’s contention -- namely, that the jury
    received inadequate guidance regarding the precise act underlying count 3 -- fails
    for two distinct reasons. First, no unanimity instruction is required when the
    prosecutor specifies the particular act underlying a charged crime. (Hernandez,
    supra, 217 Cal.App.4th at p. 559; People v. Jantz (2006) 
    137 Cal.App.4th 1283
    ,
    1292.) Thus, the necessity for a unanimity instruction is obviated when the
    prosecutor clearly identifies the act underlying a charged crime in the opening and
    closing arguments. (Jantz, supra, 137 Cal.App.4th at pp. 1292-1293.) That is what
    occurred here: during the opening statement and closing arguments, the prosecutor
    clearly predicated count 3 solely on appellant’s receipt of cash from Bolden, as he
    referred to appellant’s possession of approximately $900, and made no reference to
    appellant’s status as Bolden’s guest.
    20
    Second, even if the prosecutor had not identified the precise act of support,
    no unanimity instruction would have been required regarding the acts of support, as
    they “form[ed] part of one and the same transaction, and thus one offense.
    [Citation.]” (Thompson, supra, 160 Cal.App.3d at p. 224.) In People v. Lewis
    (1978) 
    77 Cal.App.3d 455
    , 458-461, the defendant was charged with four counts of
    pimping predicated on four discrete acts of support separated by intervals of several
    months. The appellate court concluded that because the evidence showed that the
    acts arose from the defendant’s ongoing relationship with a single prostitute, he
    could be charged with only a single count of pimping because there was “but one
    continuous criminal act . . . .” The two potential acts of support at issue here thus
    formed “one and the same transaction,” as they occurred on the same day and
    involved only Bolden. For that reason, no unanimity instruction was required
    regarding the two acts. (See People v. Leonard (2014) 
    228 Cal.App.4th 465
    , 471,
    491-492 [no unanimity instruction required in action charging defendant with two
    counts of pandering regarding two prostitutes, even though he engaged in many acts
    intended to control them over a period of time, as the evidence established “a
    continuous course of threats and intimidation”].)
    We further conclude that the unanimity instruction was not prejudicially
    defective in characterizing the “acts” underlying count 3 as those described as “2A”
    and “2B” in the instructions relating to count 3. Because 2A and 2B merely
    described the alternative “theories” of pimping set forth in section 266h,
    subdivision (a), that is, the ways in which pimping may be committed, no unanimity
    instruction was required with respect to those alternative theories. (See Sutherland,
    supra, 17 Cal.App.4th at pp. 610, fn. 2, 618 [when there is single count of forgery
    and the evidence shows only a single instrument, no unanimity instruction is
    21
    required regarding the two theories specified in the forgery statute (§ 470), which
    provides that forgery may be committed by “forging” a check -- that is, creating a
    falsified check with the intent to defraud -- or “uttering” it -- that is, passing it to a
    third party as bona fide].)
    In our view, the specification of the alternative theories was harmless. The
    instructions regarding count 3, together with the prosecutor’s remarks and the
    unanimity instruction, focused the jury’s attention on the acts of support on
    November 12, 2012, and directed the jurors to make a unanimous finding that
    appellant had derived support from Bolden’s prostitution, or alternatively, a
    unanimous finding that appellant had solicited customers for Bolden. That directive
    could not have influenced the jury’s determination in any manner unfavorable to
    appellant, however, because -- as appellant’s opening brief acknowledges -- there
    was no evidence that appellant solicited customers for Bolden on November 12,
    2012. 5 Indeed, the jury was instructed that “[s]ome of the[] instructions [might] not
    apply depending on [its] findings . . . .” The specification of the alternative theories
    was therefore harmless, even if assessed under the stringent test applicable to
    federal constitutional error. In sum, appellant has failed to show a prejudicial
    defect in the unanimity instruction.
    C. Impeachment By Circumstances of Robbery Conviction
    Appellant contends the trial court improperly permitted him to be impeached
    with the circumstances of his prior conviction. In 1999, appellant pleaded guilty to
    5      For the first time on appeal, appellant’s reply brief suggests that the trial
    evidence supported the reasonable inference that he solicited for compensation. He
    has forfeited any contention of error predicated on that suggestion. (People v.
    Baniqued (2000) 
    85 Cal.App.4th 13
    , 29.)
    22
    robbery, and admitted the truth of an accompanying gun use allegation (§ 12022.5).
    During appellant’s testimony at trial, the prosecutor sought leave to impeach him
    with the robbery conviction and the related gun use. Over an objection, the trial
    court granted that request. Later, on direct examination, appellant testified that in
    1999, he suffered a conviction for “a robbery with a gun.” Appellant asserts no
    challenge to the admission of his robbery conviction, but argues that the trial court
    engaged in reversible error by admitting the gun use relating to that crime. We
    disagree.
    In 1982, the electorate enacted the “‘Right to Truth-in-Evidence’” provision
    of the California Constitution (Cal. Const., art. I, § 28, subd. (f), par. (2)) by
    approving Proposition 8. (People v. Lazlo (2012) 
    206 Cal.App.4th 1063
    , 1069.) In
    People v. Castro (1985) 
    38 Cal.3d 301
    , 317, our Supreme Court held that under that
    provision, a prior felony conviction involving moral turpitude -- that is, a general
    readiness to do evil -- is admissible for impeachment purposes. The rationale
    underlying that principle is that the commission of a felony involving moral
    turpitude provides a basis for inferring that the felon “is more likely to be dishonest
    than a witness about whom no such thing is known.” (Id. at p. 315.) Subsequently,
    the court identified robbery as a crime of moral turpitude, noting that its
    commission manifests a readiness to do evil because it involves “the taking of
    property from the person of another, against his will, by force or fear.” (People v.
    Collins (1986) 
    42 Cal.3d 378
    , 395.)
    Admission of a prior felony conviction for impeachment purposes is
    regulated by Evidence Code section 788, which states: “For the purpose of
    attacking the credibility of a witness, it may be shown by the examination of the
    witness or by the record of the judgment that he has been convicted of a felony
    23
    . . . .” Before and after the enactment of Proposition 8, courts have interpreted
    Evidence Code section 788 to limit the evidence of a prior felony conviction to the
    name or type of crime and the date and place of conviction. (People v. Allen (1986)
    
    42 Cal.3d 1222
    , 1270; People v. Shea (1995) 
    39 Cal.App.4th 1257
    , 1267; People v.
    Heckathorne (1988) 
    202 Cal.App.3d 458
    , 462.) Thus, “[t]he scope of inquiry when
    a criminal defendant is impeached with evidence of a prior felony conviction does
    not extend to the facts of the underlying offense.” (Heckathorne, supra, 202
    Cal.App.3d at p. 462.) The erroneous admission of those facts is examined for
    prejudice under Watson. (Id. at pp. 463-464.)
    On appeal, respondent contends the trial court’s ruling was not erroneous,
    arguing that Apprendi v. New Jersey (2000) 
    530 U.S. 466
    , 490 and its progeny
    rendered the gun use relating to appellant’s robbery admissible. It is unnecessary to
    address that contention, however, because the gun use evidence was harmless, even
    though count 1 was accompanied by an allegation that appellant used force or fear
    in trafficking L.D. for a sex act. Because appellant’s robbery conviction was
    properly admitted, the jury was unavoidably informed that appellant had engaged in
    a prior crime involving force or fear. The particular way in which appellant had
    generated that force or fear -- namely, by a gun -- is not reasonably likely to have
    influenced the jury regarding the “force [or] fear” allegation accompanying count 1,
    as the prosecution offered no evidence suggesting that appellant used a gun against
    L.D. In sum, appellant has shown no reversible error relating to his impeachment.
    D. Ineffective Assistance of Counsel
    Appellant contends his defense rendered ineffective assistance by conceding
    in closing argument that the prosecution had proved beyond a reasonable doubt that
    24
    he was guilty of the offenses charged in count 1 and 2, which related to L.D. As
    explained below, we reject that contention.
    “In order to demonstrate ineffective assistance of counsel, a defendant must
    first show counsel’s performance was ‘deficient’ because his ‘representation fell
    below an objective standard of reasonableness . . . under prevailing professional
    norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s
    performance or lack thereof. [Citations.] Prejudice is shown when there is a
    ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the
    proceeding would have been different. A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.’ [Citations.]” (People v.
    Jennings (1991) 
    53 Cal.3d 334
    , 357.)
    We find guidance on appellant’s contention from People v. Mayfield (1993) 
    5 Cal.4th 142
    , 163, in which the defendant was charged with two counts of first
    degree murder. The defendant did not testify in the guilt phase of trial. (Id. at
    p. 166.) During the closing arguments of that phase of the trial, defense counsel
    conceded that one of the killings was a murder, but argued that the other killing was
    accidental. (Id. at pp. 166, 177.) Our Supreme Court rejected a contention that
    defense counsel’s concession constituted ineffective assistance of counsel, stating:
    “Our review . . . does not persuade us that the closing argument amounted to an
    abandonment of defendant. To the extent defendant is arguing that it is necessarily
    incompetence for an attorney to concede his or her client’s guilt of murder, the law
    is otherwise. [Citation.] The record does not show that counsel ignored any
    express wish on defendant’s part to present an active defense with regard to that
    count. [Citation.] To the extent defendant is arguing it was an incompetent tactical
    choice, we disagree. It was not unreasonable to seek to avoid the death penalty by
    25
    seeking a conviction on one count of second degree murder and one count of
    involuntary manslaughter on a plausible theory, when the prosecution’s evidence
    put defendant at grave risk of two first degree murder convictions. . . . [C]andor
    may be the most effective tool available to counsel.” (Id. at p. 177.)
    Also instructive is People v. Lucas (1995) 
    12 Cal.4th 415
    . There, the
    defendant was charged with two counts of first degree murder and several other
    crimes. (Id. at p. 433.) During the guilt phase of the trial, the prosecution presented
    evidence that the defendant’s blood was on the murder weapon. (Id. at p. 447.)
    The defendant testified that he was intoxicated at the time of the murders, and could
    not recall where he was or what he had done. (Id. at pp. 434-435.) In his closing
    argument, defense counsel admitted that the defendant had probably committed the
    murders, but maintained that the defendant’s intoxication negated the mens rea
    required for premeditated murder. (Id. at p. 446.) In rejecting the defendant’s
    contention that the argument constituted ineffective assistance of counsel, our
    Supreme Court stated that “it is not necessarily incompetent for an attorney to
    concede his or her client’s guilt of a particular offense.” (Id. at p. 446.) The court
    concluded that the argument was not “an incompetent tactical choice” in light of the
    prosecution’s evidence, noting that “‘good trial tactics’” may require “‘complete
    candor.’” (Id. at p. 447, quoting People v. Wright (1990) 
    52 Cal.3d 367
    , 415,
    disapproved on another ground in People v. Williams (2010) 
    49 Cal.4th 405
    , 459.)
    Here, the prosecution presented considerable evidence in support of counts 1
    and 2 relating to L.D., including a text message in which appellant stated that he
    wanted her to remain with him and be his “ho.” Following the presentation of the
    prosecution’s evidence, appellant decided to testify on his own behalf, against the
    advice of his counsel. As discussed above (see pt. A.4. of the Discussion, ante),
    26
    appellant’s testimony regarding L.D. was subject to impeachment, and was
    implausible on many matters.
    At the beginning of defense counsel’s closing argument, he underscored the
    instructions regarding reasonable doubt and the evaluation of witness credibility,
    arguing that appellant’s 1999 robbery conviction did not establish the “force [or]
    fear” allegation accompanying count 1, which concerned L.D. Counsel then
    disclosed what he characterized as “good news” for the jury, namely, that “we”
    conceded that the prosecution had established beyond a reasonable doubt the two
    counts relating to L.D. Counsel remarked that it would “be intellectually dishonest”
    to argue for a contrary position. Counsel nonetheless urged the jury to reject the
    “force [or] fear” allegation relating to count 1, arguing that appellant’s testimony
    that he believed L.D. was 18 and that he never subjected her to force or threats was
    credible. Counsel also argued that the prosecution had failed to establish count 3
    concerning Bolden.
    Appellant contends the concession of guilt regarding counts 1 and 2
    constituted an incompetent tactical choice because it effectively informed the jury
    that appellant had lied throughout his testimony. We disagree. As explained above
    (see pt. A.4 of the Discussion, ante), appellant testified that he was a bystander to
    L.D.’s prostitution. In view of the deficiencies in that testimony, it was reasonable
    for defense counsel to conclude that he could offer no argument likely to enhance
    its credibility as a whole, and that his best course of action was to emphasize the
    plausibility of the portions relating to the “force [or] fear” allegation.
    Furthermore, even if the argument had violated professional norms, we
    discern no prejudice. As explained above (see pt. A. of the Discussion, ante), the
    prosecution’s evidence was compelling, and appellant’s testimony was of dubious
    27
    credibility. It is not reasonably likely that appellant would have achieved a more
    favorable outcome had defense counsel urged the jury to credit that testimony in its
    entirety. In sum, appellant has shown no ineffective assistance of counsel.
    DISPOSITION
    The judgment is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    MANELLA, J.
    We concur:
    EPSTEIN, P. J.
    WILLHITE, J.
    28