Opinion
B318482
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JESUS RAMIREZ, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. VA144849 Lee W. Tsao, Judge. Affirmed.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
ASHMANN-GERST J.
A jury found defendant and appellant Anthony Jesus Ramirez guilty of the first degree murder of Maria Magdalena Figueroa (Figueroa). (Pen. Code, § 187, subd. (a).) The jury also found true the lying-in-wait special circumstance allegation (§ 190.2, subd. (a)(15)) and the allegation that defendant personally used a deadly and dangerous weapon-a knife-in the commission of the murder (§ 12022, subd. (b)(1)). In a bifurcated proceeding, the trial court found that defendant had suffered a prior serious felony conviction within the meaning of the "Three Strikes" law (§§ 667, subd. (d), 1170.12, subd. (b)) and section 667, subdivision (a)(1). The court sentenced defendant to state prison for life without the possibility of parole plus one year for the weapon enhancement and five years for the section 667, subdivision (a)(1) enhancement.
All further statutory references are to the Penal Code unless otherwise indicated.
In this timely appeal, defendant contends that (1) the evidence was insufficient to support the lying-in-wait special circumstance and first degree murder conviction; (2) the trial court erred when it instructed the jury that unanimity was not required as to the theory of first degree murder; (3) the court abused its discretion when it denied his motions for mistrial and new trial; (4) he received ineffective assistance of counsel; and (5) the cumulative effect of the asserted errors denied him of a fair trial.
We affirm.
BACKGROUND
I. The People's evidence
A. Defendant's relationship with Figueroa
Figueroa and defendant began dating in 2016, and defendant subsequently moved into Figueroa's home. At some point in 2017, they began having "a lot" of arguments, and Figueroa asked defendant to leave. Defendant then slept in a vehicle parked outside of Figueroa's home. Defendant repeatedly came by Figueroa's home late at night, knocked on the window, and called for her. Figueroa did not want further contact with defendant.
B. Defendant attacks Figueroa
On May 24, 2017, Kirk Washington (Washington) arrived at the parking lot of Healthcare Partners in Downey. He noticed a man, later identified as defendant, "lurking around." Defendant was crouched next to a van and peering around.
Figueroa, who worked at Healthcare Partners, was standing in the middle of the parking lot and talking on her phone. Washington saw defendant "weaving in and out" between the cars as he approached Figueroa. Defendant was "ducking down in between the cars" such that his head was at or below the height of the cars. It appeared to Washington that defendant was concealing his body behind the cars. When defendant was about one car-length away from Figueroa, he emerged from behind a car and attacked her. Washington saw that Figueroa had a "startled look on her face" and heard her scream and yell, "'No, Anthony, no[.]'" Washington noticed blood streaming out of Figueroa's shirt. Defendant ran to his car and drove away.
Megan Brundin (Brundin), was inside the waiting room at Healthcare Partners, when she saw a man resembling defendant running from some parked cars. She saw him drop a knife, go back to retrieve the knife, and continue running. Shortly thereafter, Brundin heard screaming.
Steven Urias (Urias) was working inside the physical therapy department at Healthcare Partners when he heard Figueroa scream, "'Anthony, no.'" Urias went outside and walked up to Figueroa, who was in the middle of the parking lot and bleeding from the chest. Urias asked her, "'Did he do this?'" Figueroa nodded yes and pointed across the parking lot to a man Urias recognized as defendant.
Angie Garcia, a nursing supervisor at Healthcare Partners, saw Figueroa sitting on the curb in front of the physical therapy area and being held by Urias. As Garcia attended to Figueroa's wounds, Garcia asked her if she knew who had done this to her. Figueroa responded, "'Yes, Anthony[.]'" Garcia asked, "'Anthony who?'" Figueroa answered, "'My Anthony.'"
C. Police apprehend defendant
Shortly after fleeing the scene, defendant was involved in a traffic collision and thereafter proceeded on foot. Responding officers ordered defendant to drop the knife that he was carrying, but defendant failed to comply. Defendant was subsequently tasered, handcuffed, and taken into custody.
D. Figueroa succumbs to her injuries
Figueroa was transported to the hospital, where she died of a sharp force injury to the chest. According to the deputy medical examiner who performed Figueroa's autopsy, the 2.5-inch-deep stab wound to the chest was "associated with" a "devastating injury to the heart." It was a "fatal injury" that would have caused massive, rapid blood loss. Figueroa also had incised wounds on her forehead and the bridge of her nose.
II. Defendant's evidence
The defense did not call witnesses.
DISCUSSION
I. Sufficiency of the evidence
Defendant does not dispute that his actions "ultimately resulted in the death of" Figueroa. While he concedes that the evidence may have been sufficient to support a second degree murder conviction, he contends that substantial evidence does not support his conviction for first degree murder or the jury's true finding on the lying-in-wait special circumstance.
At trial, defense counsel told the jury: "This case is not about whether the People can show that [defendant] killed the victim in this case. This case is solely about whether they can prove to you beyond a reasonable doubt that the killing was done so with premeditation and whether it was done while lying in wait."
A. Relevant law
"Murder is the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Murder by means of lying in wait is a "kind[] of first degree premeditated murder[.]" (People v. Brown (2023) 14 Cal.5th 453, 462; see also § 189, subd. (a).) To prove lying-in-wait first degree murder, "the prosecution must show the defendant performed the acts of watching, waiting, and concealment with the intent to take the victim by surprise to facilitate the infliction of injury likely to cause death. [Citations.]" (Brown, supra, at pp. 456-457.)
The lying-in-wait special circumstance set forth in section 190.2, subdivision (a)(15), "includes the elements of first degree lying-in-wait murder [citation], but requires the additional element that the killing was intentional, not merely committed with implied malice. [Citation.]" (People v. Flinner (2020) 10 Cal.5th 686, 748 (Flinner).) In other words, the "'. . . lying-in-wait special circumstance requires "'"an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) . . . a surprise attack on an unsuspecting victim from a position of advantage ...."'"' [Citation.]" (Ibid.)
B. Standard of review
In evaluating defendant's challenges to the sufficiency of the evidence, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence which is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; see also People v. Mataele (2022) 13 Cal.5th 372, 420 ["We analyze a sufficiency-of-the-evidence challenge to a special circumstance finding under the same standard applied to a conviction"].) We "presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053 (Kraft).)
Here, where defendant challenges both the true finding on the lying-in-wait special circumstance and the first degree murder conviction, "we focus . . . on whether substantial evidence supports the special circumstance, for if it does, it necessarily supports the theory of first degree lying-in-wait murder. [Citation.]" (Flinner, supra, 10 Cal.5th at p. 748.)
C. Analysis
The evidence amply supports the lying-in-wait special circumstance finding and the first degree murder conviction.
Washington testified that, upon his arrival at Healthcare Partners, he noticed defendant "lurking around" the parking lot, crouched next to a van, and peering around. Washington saw defendant approach Figueroa-who was occupied talking on her phone-while weaving between cars and "ducking down" so that his head did not extend above the cars. Defendant waited until he was only one car-length away from Figueroa before emerging from behind a car and attacking her. Washington described a "startled look" on Figueroa's face and heard her scream and yell, "'No, Anthony, no[.]'" Washington testified that about one or two minutes elapsed between the time that he first saw defendant in the parking lot and the time of the attack. Defendant then ran back to his car and fled the scene.
Brundin also heard Figueroa's screams and testified that, shortly before that, she saw a man resembling defendant stop running to retrieve a knife he had dropped.
The deputy medical examiner who performed Figueroa's autopsy, testified that Figueroa died from a 2.5-inch-deep chest wound-a "devastating" and "fatal" injury to the heart.
Based on these witnesses' testimonies, the jury could reasonably conclude that defendant had arrived at the parking lot either before or at the same time as Washington and engaged in physical concealment while watching Figueroa and waiting for an opportune time to emerge, fatally stab Figueroa in the heart, and flee. The evidence is sufficient to establish an intentional killing, committed as a surprise attack from a position of advantage after a period of concealment and watchful waiting, which satisfies each element of the lying-in-wait special circumstance. (Flinner, supra, 10 Cal.5th at p. 748.) And, "[b]ecause sufficient evidence supports the lying-in-wait specialcircumstance finding, it necessarily supports the first degree murder verdict based on the theory of lying in wait. [Citation.]" (People v. Johnson (2016) 62 Cal.4th 600, 633-634; see also Flinner, supra, at p. 748.)
Resisting this conclusion, defendant argues that the evidence was insufficient to prove beyond a reasonable doubt that he physically concealed himself, watched and waited for a substantial period of time, or acted with the intent to kill. We address each of these elements in turn.
Defendant does not contend that substantial evidence is lacking as to the element of surprise. He has thus forfeited any claim of error in that respect. (See Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 ["Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived"].)
1. Concealment
Defendant characterizes as "nothing short of speculation" Washington's testimony that defendant appeared to be concealing his body behind the cars and contends that "one would necessarily be 'zig zagging[]' . . . just to get through the parked cars to the front of the building." We disagree. Washington saw defendant "weaving in and out" between the cars and "ducking down in between the cars." This was substantial evidence from which a reasonable juror could find beyond a reasonable doubt that defendant engaged in acts of physical concealment.
Having found substantial evidence, "[i]t is of no consequence that the jury, believing other evidence or drawing other inferences, might have come to a contrary conclusion. [Citations.]" (People v. Mendonsa (1982) 137 Cal.App.3d 888, 891 (Mendonsa).) We presume that the jury found that defendant's maneuvers through the parking lot were to avoid detection by Figueroa. (Kraft, supra, 23 Cal.4th at p. 1053 ["appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence"].)
2. Period of watching and waiting
Pointing to a lack of evidence pinpointing the exact time that he arrived at the Healthcare Partners parking lot, defendant claims there is insufficient evidence that he "had engaged in a watch and wait for any period of time."
The California Supreme Court has "held the period of watchful waiting must be 'substantial' [citation]," but it has "never placed a fixed time limit on this requirement." (People v. Moon (2005) 37 Cal.4th 1, 23; accord, People v. Nelson (2016) 1 Cal.5th 513, 550.) "The lying in wait need not continue for any particular period of time provided that its duration is substantial in the sense that it shows a state of mind equivalent to premeditation or deliberation. [Citation.]" (People v. Cage (2015) 62 Cal.4th 256, 279.) A period under two minutes may suffice. (See Moon, supra, at p. 23 [90-second wait sufficient to support lying-in-wait finding]; see also People v. Stevens (2007) 41 Cal.4th 182, 203 (Stevens) [explaining that "[e]ven a short period of watching and waiting can negate . . . an inference" that a defendant "killed as a result of rash impulse"].)
Here, even if defendant had arrived immediately before he was spotted by Washington, at least one or two minutes passed between the time he was first observed lurking in the parking lot and the time he attacked Figueroa. The jury could reasonably conclude that defendant engaged in a sufficient period of watchful waiting while he approached Figueroa, attempting to conceal himself until the opportune moment to launch his surprise attack. (Cf. Stevens, supra, 41 Cal.4th at p. 203 [adequate period of watchful waiting occurred while the defendant was driving toward and alongside the victim's car].)
3. Intent to kill
Finally, defendant asserts that "the record left room for at least one juror to have reasonable doubt whether [defendant]'s intent was to kill or simply assault with a deadly weapon[.]" He contends that the deputy medical examiner testified that it was possible that Figueroa's face and chest "wounds were caused by one downward motion" of the knife.
This argument lacks merit.
First, defendant misstates the evidence. The deputy medical examiner testified that she could not determine whether Figueroa's two face wounds "were inflicted with one pass of a sharp object" or if they were inflicted with "two separate passes." She did not testify that the face wounds and the chest wound could have been inflicted with a single pass.
Second, defendant disregards the governing standard of review. That a juror could have reached a different conclusion regarding defendant's intent to kill "is of no consequence" (Mendonsa, supra, 137 Cal.App.3d at p. 891) because reasonable inferences drawn from defendant's acts and the circumstances of the crime amply support the jury's finding that defendant intentionally killed Figueroa. (See People v. Smith (2005) 37 Cal.4th 733, 741 [intent to kill may be inferred from "the defendant's acts and the circumstances of the crime"].)
Defendant carried a deadly weapon-a knife-as he approached Figueroa. When he dropped the knife, he stopped to retrieve it, thus ensuring that it was available for his use before launching his attack. He then used the knife to stab Figueroa in the heart, causing a fatal, 2.5-inch wound. This constitutes substantial evidence of defendant's intent to kill. (See People v. Bolden (2002) 29 Cal.4th 515, 561 [a defendant who plunged a knife deeply into "a vital area of the body of an apparently unsuspecting and defenseless victim . . . could have had no other intent than to kill"]; People v. Anderson (1968) 70 Cal.2d 15, 27 ["directly plunging a lethal weapon into the chest evidences a deliberate intention to kill"]; People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [finding substantial evidence of intent to kill where a "defendant stabbed the victim not in the arm or leg, but in the abdomen, an extremely vulnerable area of the body"].)
II. Instructional error
The jury was instructed with CALCRIM No. 521 that it could "not find . . . defendant guilty of first degree murder unless all . . . [jurors] agree[d] that the People ha[d] proved that . . . defendant committed murder." The jury was instructed that it did not, however, "need to agree on the same theory" of murder liability-that is, whether "the murder was willful, deliberate, and premeditated" or "the murder was committed while lying in wait or immediately thereafter."
Defendant argues that the failure to require the jury to unanimously agree on the theory of murder violated his rights to due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 16 of the California Constitution. We review this claim of instructional error de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.)
The California Supreme Court has previously considered and rejected such an argument. (People v. Russell (2010) 50 Cal.4th 1228, 1256-1257; see also People v. Mora and Rangel (2018) 5 Cal.5th 442, 496 [continuing to follow "long-standing rule that juror unanimity regarding the theory of first degree murder is not required"].) We are bound by this precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant nevertheless urges us to reconsider the issue in light of the United States Supreme Court's decision in Ramos v. Louisiana (2020) 140 S.Ct. 1390, which held "that the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally." (Ramos, supra, at p. 1397.) But Ramos says nothing about whether a jury must unanimously agree on a theory of first degree murder. And "[g]iven California's existing requirement of a unanimous verdict, the Supreme Court's decision [in Ramos] has no direct effect on California ...." (People v. Wilson (2020) 56 Cal.App.5th 128, 161, fn. 17.)
Accordingly, we must reject defendant's claim of instructional error.
III. Motions for mistrial and new trial
Defendant moved for a mistrial and, following the jury's verdict, a new trial based on the allegedly erroneous admission of the testimony of his wife, Crystine Ramirez (Crystine). He contends that the trial court's denial of these motions constituted an abuse of discretion.
Because defendant and Crystine share the same last name, we refer to Crystine by her first name for clarity. No disrespect is intended.
A. Relevant proceedings
1. Crystine's testimony
The People sought to call Crystine as a witness, believing her to be defendant's former wife. The prosecutor told the trial court that Crystine was "going to refuse to testify" and wanted an attorney. Crystine was brought into the courtroom outside of the presence of the jury. She confirmed that she did not want to testify, explaining that she had "a lot of mixed feelings[,]" had three children with defendant, and would "rather not be [a] part of it." The trial court ruled that Crystine's testimony was required and that there was no legal reason to appoint her counsel.
The jury returned, and Crystine was called to the stand. The prosecutor's first question was whether Crystine had, "at some point in time," been married to defendant. Crystine replied, "Yes, and I still am." She explained that they had married in 2000 and had been separated for approximately 10 or 11 years. She did not remember the date, but she had texted Figueroa and had received a call back. Crystine testified that "warning" Figueroa was not the only reason she was on the phone with her, but that it "could have been" one of the reasons. Crystine did not remember if she heard something while on the phone with Figueroa. She did not remember if defendant told her that he had stabbed Figueroa. Crystine testified that she did not think that defendant and Figueroa were "getting along" and that defendant wanted her to talk to Figueroa to "work things out." Most of Crystine's responses were that she did not know or did not remember.
2. Defendant's motion for mistrial
Defendant subsequently moved the trial court to declare a mistrial based on Crystine's testimony. Defense counsel characterized it as "error on [his] part" for not "recogniz[ing] this issue" and raising an objection earlier. Counsel contended that the marital privilege applied under Evidence Code sections 970, 972, and 980, and that the error in admitting Crystine's testimony could not be cured by admonishing the jury.
The prosecutor argued that Crystine's testimony was still admissible, as she had waived the marital privilege by previously disclosing the confidential communications to a third party and the testimony fell within the "cohabitant exception" to the privilege. Nevertheless, the prosecutor did not oppose striking Crystine's testimony and instructing the jurors to disregard it.
The trial court denied the motion for mistrial. The court declined to resolve whether the spousal privilege applied but still struck Crystine's testimony. It explained: "[I]t does not appear to me that, with a thorough admonishment and the substance of [Crystine]'s testimony, which isn't much given that most of her responses were 'I don't know' or 'I don't remember,' and . . . given the record before the court, . . . I would be hard-pressed to find that there would be any significant prejudice to the defense." The court later reiterated that even if the spousal privilege applied and Crystine's testimony had been admitted in error, defendant would not suffer prejudice given the court's admonition to the jury.
3. The trial court's admonition
The trial court gave the jury the following admonition:
"On Thursday of last week, you heard the testimony of Crystine Ramirez, the woman who was on the phone with Maria Figueroa shortly before she died. The court is striking her testimony. You may not consider it for any purpose.
"So let me say it again: The court is striking the testimony of Crystine Ramirez. You may not consider it for any purpose. You must not let anything you heard or saw during her testimony influence your verdict. You must not let her testimony influence how you interpret the other evidence or the arguments of counsel.
"Nothing you heard or saw during her testimony has any evidentiary value whatsoever. That goes not only for what she said, but also how she said it and the questions that were asked of her. None of it has any evidentiary value. If you were to consider any part of her testimony for any purpose in reaching your verdict, it would be unfair to the parties."
The trial court then asked the jury to raise a hand if any juror "ha[d] any problems" following the court's order. No hands were raised. The court proceeded to poll the jury, asking each juror, individually, whether he or she would follow the court's order. Each juror responded, "Yes."
4. Defendant's motion for new trial
After the jury rendered its verdict, defendant filed a motion for new trial based on Crystine's testimony. The trial court denied the motion. Although the court "agree[d]" that Crystine's testimony "should not have been admitted in the first place," it had struck the testimony and had given "the strongest admonition [it] could to eliminate any prejudice to the defense." The court had "no indication that the jurors did not follow the court's admonition[.]"
B. Relevant law
Mistrials should be granted "'"only when a party's chances of receiving a fair trial have been irreparably damaged."' [Citation.] This generally occurs when '"'"the court is apprised of prejudice that it judges incurable by admonition or instruction."'"' [Citation.]" (People v. Johnson (2018) 6 Cal.5th 541, 581 (Johnson).) "In making this assessment of incurable prejudice, a trial court has considerable discretion. [Citation.]" (People v. Davis (2005) 36 Cal.4th 510, 554.)
As pertinent here, a new trial may be granted "[w]hen the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial . . . [.]" (§ 1181, subd. (5).) "In passing upon a motion for a new trial the judge has very broad discretion ...." (People v. Robarge (1953) 41 Cal.2d 628, 633.)
C. Standard of review
We review the trial court's denial of motions for mistrial and new trial for abuse of discretion. (Johnson, supra, 6 Cal.5th at p. 581 [mistrial]; People v. Parker (2022) 13 Cal.5th 1, 88 [new trial].) "To establish an abuse of discretion, [a] defendant[] must demonstrate that the trial court's decision was so erroneous that it 'falls outside the bounds of reason.' [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be 'established by "a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
D. Analysis
Assuming without deciding that the original admission of Crystine's testimony was improper, we find no abuse of the trial court's discretion in denying defendant's motion for mistrial and motion for new trial.
In its respondent's brief, the People argue that Crystine's testimony was properly admitted because it fell within the cohabitant exception to the marital privilege. (See Evid. Code, § 972, subd. (e)(1).) Because the trial court struck Crystine's testimony in its entirety and we find no abuse of the court's discretion in denying defendant's mistrial and new trial motions, we need not address this argument.
With no unreasonable delay, the trial court struck Crystine's testimony and gave "the strongest admonition [it] could" for the jury to disregard it. We presume that the jury followed the court's instruction. (People v. Schultz (2020) 10 Cal.5th 623, 673 (Schultz); People v. Allen (1978) 77 Cal.App.3d 924, 934 ["A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith"].) "It is only in the exceptional case that 'the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions.' [Citation.]" (Allen, supra, at p. 935.) This is not such a case.
Defendant makes much of the fact that the admonition occurred four days after Crystine testified. We note, however, that this period included a weekend.
Crystine's testimony consisted almost entirely of statements that she did not know or did not remember. She did not testify to anything shocking or outrageous that would have made an indelible impression in a juror's mind. The trial court's admonition "was thorough and forceful[.]" (People v. Price (1991) 1 Cal.4th 324, 428.) In denying the motion for new trial, the court explained that it had "no indication that the jurors did not follow the court's admonition[.]" We find that "nothing in the record provides any reason to question the court's belief that the prejudice resulting from the improper evidence was cured by the court's" admonition or "any reason for [us] to cast aside the presumption that the jurors followed" the admonition. (Schultz, supra, 10 Cal.5th at p. 674.)
Under these circumstances, we cannot say that the trial court's denials of defendant's mistrial and new trial motions were arbitrary, capricious, or patently absurd, such that an abuse of discretion occurred.
IV. Ineffective assistance of counsel
Appellant contends that he suffered ineffective assistance of counsel by virtue of (1) his trial counsel's failure to object to the admission of Crystine's testimony before she was called to the stand and, (2) during Crystine's testimony, failing to question her about a prior statement that she had called Figueroa to warn that defendant was suicidal.
To establish ineffective assistance of counsel, a defendant must show that counsel's performance was both deficient and prejudicial. (People v. Mai (2013) 57 Cal.4th 986, 1009.) "When examining an ineffective assistance claim, a reviewing court defers to counsel's reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance." (Ibid.) To establish prejudice, "[t]he defendant must show that 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." (Strickland v. Washington (1984) 466 U.S. 668, 694 (Strickland).)
Assuming, again without deciding, that defendant's trial counsel erred by failing to object to Crystine's testimony before she was called to the stand, we discern no prejudice. Defense counsel strongly objected after Crystine testified, filing a motion for mistrial followed by a motion for new trial. Although these motions were denied, the motion for mistrial resulted in the trial court striking Crystine's testimony in its entirety and issuing a forceful admonition to the jury. This cured any prejudice to defendant flowing from his counsel's alleged errors, as Crystine's stricken testimony had no effect on the judgment. (See Strickland, supra, 466 U.S. at p. 691 ["An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment"].)
V. Cumulative error
Finally, defendant contends that he was denied a fair trial based on the cumulative impact of the alleged errors. "Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. [Citations.] Although a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.' [Citation.]" (People v. Capers (2019) 7 Cal.5th 989, 1017.) Here, as set forth in the preceding sections, defendant has not established multiple court errors to combine.
DISPOSITION
The judgment is affirmed.
We concur:, LUI, P. J., HOFFSTADT J.