Filed 3/15/22 P. v. Allagoa CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

HAYDEN O. ALLAGOA,

Defendant and Appellant.

 B308118

 (Los Angeles County

 Super. Ct. No. SA093900)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lauren Weis Birnstein, Judge. Affirmed.

Boyce & Schaefer and Laura Schaefer, under appointment 

by the Court of Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Amanda Lopez and Eric J. Kohm, 

Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
2

A jury convicted defendant and appellant Hayden O. 

Allagoa of first degree premeditated murder (Pen. Code, § 187, 

subd. (a) 1 [count 1]) and assault with a semi-automatic firearm 

(§ 254, subd. (b) [count 3]).

2 The jury found true firearm

allegations associated with each count (§ 12022.53, subds. (b)–(d) 

[count 1]; § 12022.5, subd. (a)). 

The trial court Imposed a sentence of 25 years to life in 

count 1, and struck the attached firearm enhancement in the 

interest of justice (§ 12022.53, subds. (b)–(d)). It imposed a 

concurrent sentence of 10 years in count 3, consisting of the 

middle term of six years for assault with a semi-automatic 

firearm and four years for the associated firearm enhancement 

(§ 12022.5, subd. (a)). 

On appeal, Allagoa contends that there was insufficient 

evidence of premeditation; the manner in which he was legally

represented violated his constitutional rights; the prosecutor 

committed misconductin closing argument; counsel provided

ineffective assistance; the trial court abused its discretion by

admitting and excluding certain evidence; and cumulative errors 

deprived him of a fair trial. 

We affirm the trial court’s judgment.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 The prosecutor dismissed a charge of attempted 

premeditated murder in count 2. (§§ 187/664.)
3

FACTS

Prosecution

Micrin Lias

On September 1, 2016, sometime between 4:00 p.m. and 

5:00 p.m., Micrin Lias went to Koff’s Liquor store. Lias met his 

good friend Joseph Goudeau there and the men started drinking

in the parking lot outside the store. Lias was also smoking 

marijuana. 

At about 8:30 p.m., Lias saw Allagoa, who he had seen on 

one other occasion, following Goudeau on the sidewalk and into

the parking lot. At that point, Goudeau was “pretty smashed up” 

from drinking. Lias was also intoxicated. Goudeau turned 

around and started arguing with Allagoa. Lias tried to intervene. 

He asked them why they were fighting. He said, “Get it off y’all 

chest. Go and get it over with. Let it go.” Goudeau took off his 

shirt and put it on the ground as if to fight, and then picked it up. 

Allagoa punched Goudeau, knocking him down. Goudeau got up 

and punched Allagoa, knocking Allagoa to the ground.

All three men ran to the north part of the parking lot.

Allagoa pulled out a semiautomatic gun and aimed it at 

Goudeau.

3 Lias had not seen the gun before Allagoa pulled it out. 

Lias positioned himself between Allagoa and Goudeau, and found 

himself “looking down a barrel.” He pleaded with Allagoa not to 

3 Lias testified he did not remember seeing Goudeau pick 

anything up from the ground. After he was shown surveillance 

video of the event, Lias agreed that Goudeau had picked up an 

object, but he could not tell what it was. 
4

shoot Goudeau. Lias thought Goudeau was behind him, but 

Goudeau stepped to the right of him while Lias had his back 

turned. Allagoa warned Lias, “Watch out, big homie.” Allagoa 

aimed at Goudeau and pulled the trigger twice, but the gun was 

jammed and did not fire. Allagoa cleared the gun’s chamber. As 

he was racking the gun to load another bullet, Goudeau moved 

around Lias and knocked the gun out of Allagoa’s hands. All 

three men ran to retrieve it, but Lias and Goudeau were very 

drunk and they both fell down. Allagoa got the gun. Goudeau 

jumped up, and Allagoa shot him from a distance of about 10 to 

15 feet. 

Lias did not see the actual shooting because he was still 

getting up, but he heard the shot. When he looked up he saw 

that Goudeau had fallen into a planter. Lias went over to 

Goudeau. Goudeau had been shot just below his chest. Lias did 

not see anything in Goudeau’s hands. At first, Allagoa stood 

there looking at Goudeau as if to “see if he gonna die.” Then he 

walked away. Lias jumped at Allagoa. Allagoa fled and Lias 

gave chase. Allagoa pointed the gun at Lias as he was running 

away and Lias retreated into the parking lot. Lias was unarmed.

Lias had not seen Goudeau with a weapon at any point during

the fight. 

Lias identified Allagoa as the shooter in a photographic 

lineup right after the killing, and identified him again in court. 

Thomas Curran

Thomas Curran and Bryan Benedetti were building a wall 

at Benedetti’s house near the liquor store parking lot on 

September 1, 2016. They were in Benedetti’s truck when Curran 
5

saw two men (Allagoa and Goudeau) in a heated argument. A 

third man (Lias) was trying to stop them from fighting. Curran 

did not know any of the men.

Curran saw the men begin to fight. Curran could not 

remember who threw the first punch. Allagoa was “very 

aggravated.” He was “coming after [Goudeau] like a mad bull.” 

As the men were “fighting and boxing,” Curran saw a heavy 

object swinging around in Allagoa’s pocket. Allagoa was beating 

Goudeau and knocked him to the ground. Allagoa was “getting 

the better” of Goudeau, who was “a lot weaker.” Although both 

men threw punches, Goudeau did not hit Allagoa as often as 

Allagoa hit Goudeau. Curran testified that Allagoa was 

“whacking the heck out of [Goudeau].” “[Allagoa] was socking 

[Goudeau] multiple times over and over again like a pro boxer. 

And [Goudeau] was like, a kindergartener, first base.” 

Goudeau picked up a brick, and Allagoa pulled a gun out of 

his pocket.4 It was a small semi-automatic handgun. Goudeau 

dropped the brick and picked it up several times. Allagoa started 

punching Goudeau with one hand and pistol whipping him with 

the other hand. 

The gun flew out of Allagoa’s hand. Goudeau and Allagoa 

ran across the parking lot to retrieve it. They fought for 

possession of the gun, but Allagoa got it. Allagoa and Goudeau 

fought for about 15 to 20 seconds and then separated to 

approximately 20 feet apart. Lias got between them and tried to 

intervene. He pleaded with Allagoa,“No, don’t do it. Don’t go 

4 Curran told the detectives Goudeau picked up several 

bricks and was trying to throw them at Allagoa. Curran testified 

that he did not recall Goudeau ever successfully hitting Allagoa 

with a brick. 
6

there. No, no, no.” Although Curran had trouble hearing 

generally, he heard Lias clearly. Lias waved his arms, trying to 

block Allagoa from shooting Goudeau as if he was defending a 

basketball shot. Allagoa waved the gun back and forth trying to 

get around Lias. Curran heard a gunshot. He did not see the 

actual shooting, however, because a parked suburban was

blocking his view of Goudeau. Allagoa walked out of the parking 

lot, but then returned with the gun still in his hand. Curran told 

Benedetti to get them out of the parking lot before Allagoa 

started shooting witnesses. 

In court, Curran identified Allagoa as the person holding 

the gun. The day after the killing, Curran identified Allagoa as 

the gunman in photograph #1 in a lineup , but then told officers 

that the shooter was depicted in either photograph #3 or #5. At 

trial, Curran explained that he purposely misidentified Allagoa 

because “all kinds of people started closing in on us, listening”

when he was talking to the detectives. He wanted “to take a 

target off [his] back.” He identified Allagoa as the shooter at the 

preliminary hearing. Curran testified as truthfully as he could in 

court. He had recently suffered a head injury. He thought the 

head injury “vaguely” affected his memory of the incident; he did 

not remember Allagoa pulling the gun out of his pocket and 

putting it back several times as he previously stated, but he 

remembered everything else clearly. 

Bryan Benedetti

Bryan Benedetti was building a block wall with Curran in 

the parking lot that abutted Benedetti’s property, when 
7

Benedetti heard a loud argument between Goudeau and Allagoa.5

Benedetti was only about 17 feet away from Allagoa and 

Goudeau. Benedetti recognized Goudeau and Lias because they 

hung out in the parking lot regularly. Initially Benedetti tried to 

ignore the fight because fights were common in that area, but 

when the argument continued and began to escalate he started 

paying attention. Curran told Benedetti that Allagoa had taken 

out a gun and said they had better get out of there. Benedetti 

agreed that they should leave. Benedetti and Curran got into 

Benedetti’s truck and started to pull out. 

Allagoa and Goudeau were punching each other and

chasing each other around. Benedetti did not see who threw the 

first punch, but he saw “many punches thrown.” Lias got

between the two men and tried to stop the fight. Allagoa 

punched Goudeau in the mouth. Goudeau picked up a brick and 

threw it at Allagoa. The fight continued after Goudeau threw the 

brick. Allagoa punched Goudeau while holding the gun. Then

the gun flew out of Allagoa’s hand.6

Benedetti spun the wheels of his truck to try to distract

Goudeau and Allagoa. As Benedetti pulled out of the parking lot, 

5 Benedetti gave the police surveillance footage video, 

which was played for the jury. 

6 Benedetti testified that he was not able to identify the 

object that Allagoa was holding as a gun until it flew out of his 

hand. Benedetti told the officers who interviewed him the day 

after the shooting that he never saw a gun. At trial, he explained 

that he was afraid of being involved in the incident when he 

talked to the police.
8

he heard a gunshot. He did not see the shooting because he was 

concentrating on driving. 

Benedetti identified Allagoa as the man with the gun in a 

photographic lineup. He saw Allagoa’s face while standing about 

17 feet away from him during the fight. 

The Investigation

Los Angeles Police Department Officer Christopher Silva 

responded to the scene of the shooting. When he arrived, 

Goudeau was conscious and was transported to the hospital. The 

hospital later notified Officer Silva that Goudeau had died. 

Officers recovered a cell phone, a Luger 9-millimeter bullet 

casing, and bricks from the scene. 

The deputy medical examiner who conducted Goudeau’s

autopsy testified that Goudeau suffered a single bullet wound to 

the upper abdomen, which was recovered from the left side of 

Goudeau’s back. There was no soot or stippling, so the shooter 

was at least two feet away when he shot Goudeau. Goudeau had 

alcohol, marijuana, and ephedrine in his blood. His blood alcohol 

level measured .081 at the time of the autopsy. 

A firearms examiner testified that the bullet recovered

from Goudeau’s body was fired from a semiautomatic pistol. 

Allagoa was arrested on November 23, 2016. 

Surveillance Camera Footage

The jury was shown surveillance footage of the fight that

Benedetti provided to the police. The video does not depict the 

physical altercation in its entirety, nor does it show the shooting, 
9

and it is of low quality and resolution. It depicts Allagoa, 

Goudeau, and Lias. Goudeau can be seen throwing his shirt on

the ground and picking it up again. The video shows the start of 

the fight, and Allagoa is seen knocking Goudeau to the ground. 

Goudeau gets back on his feet and the men continue to fight. At 

one point Allagoa appears to be backing away, and Goudeau is 

shown picking up something from the ground. All three men 

then run behind a parked suburban. The video does not depict 

the gun flying from Allagoa’s hand. The continuing fight and the 

shooting occur out of view of the camera; though Lias is shown

waving his hands over his head at one point. The video then 

depicts Allagoa leaving the scene.

Other surveillance video was obtained from the strip mall 

cameras adjacent to the parking lot; the mall videos depict

multiple camera views. The videos show Allagoa in the parking 

lot approximately 20 minutes before the fight began. A van is 

shown pulling into the parking lot. The driver goes into a store 

and when he returns Allagoa gets into the van and they drive 

away. Almost 20 minutes later, Allagoa can be seen walking into 

the parking lot. He walks directly to a car and stands next to it. 

Allagoa then walks past an S.U.V. The video depicts a heavy 

object in his right pocket swinging as he walks. 

The prosecution also introduced camera footage from a

nearby apartment building that depicts Allagoa departing the

scene. 

Facebook and Cell Phone Records

Posts on Allagoa’s Facebook account and data in his cell 

phone from the time period between the shooting and arrest 
10

indicated that he fled the Los Angeles area and attempted to 

obtain a passport to cross the border into Canada. Allagoa’s cell 

phone and Facebook posts contained multiple incriminating 

messages, indicating that, a few weeks prior to the shooting, he 

purchased a 9-millimeter gun matching the caliber of the casing 

recovered at the scene, and that he was on the run after the 

shooting. 

The Jail Incident

Testimony and video evidence was presented that, during 

trial, when Allagoa and Lias were both being held in county jail, 

Allagoa threatened Lias and told Lias that he should have shot 

him. 

Defense 

Babak Malek, a crime scene reconstruction expert,

enhanced the brightness and contrast of the surveillance videos, 

and zoomed in so that Allagoa, Goudeau, and Lias could be more 

closely viewed. Based on his review of the enhanced surveillance 

video, Babek testified that he observed Lias pointing an object 

that resembled a gun at Allagoa, who was backing away. Malek 

also saw a brick being thrown at Allagoa. 

Malek did not see Allagoa pull anything resembling a gun 

from his pocket or waist area, and did not see Allagoa holding an 

object resembling a gun. With the exception of a brick, Malek did 

not observe any objects flying through the air. 

Dr. Mitchell Eisen, a psychologist with an expertise in

eyewitness memory, testified that memory is malleable and can 
11

degrade and suffer alteration with the passage of time, receipt of 

new information, and other factors.

Defense investigator Michael Howard testified that, in an 

interview he conducted, Lias’s description of Allagoa’s location 

when Allagoa fired the gun was inconsistent with Lias’s 

testimony at trial. 

DNA evidence was presented demonstrating that both

Allagoa and Goudeau were likely contributors of DNA on a swab 

obtained from a brick located in the planter where Goudeau fell 

after he was shot. 

DISCUSSION

I. Sufficiency of the Evidence of Premeditation and 

Deliberation

Allagoa contends that there was insufficient evidence to 

support the jury’s finding that he acted with premeditation and 

deliberation. When reviewing for sufficiency of the evidence, we 

consider “‘“‘the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence—that is, evidence which is reasonable, credible, and of 

solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’”’ [Citation.]” 

(People v. Casares (2016) 62 Cal.4th 808, 823 (Casares), 

disapproved of on another ground in People v. Dalton (2019) 7 

Cal.5th 166, 214; People v. Clark (2011) 52 Cal.4th 856, 942–943.) 

“As a general matter, juries may accept some parts of a witness’s 

testimony and reject other parts . . . .” (People v. Collins (2021) 

65 Cal.App.5th 333, 345.) “‘Resolution of conflicts and 
12

inconsistencies in the testimony is the exclusive province of the 

trier of fact. [Citation.] Moreover, unless the testimony is 

physically impossible or inherently improbable, testimony of a 

single witness is sufficient to support a conviction.’ [Citations.]”

(People v. Brown (2014) 59 Cal.4th 86, 106.) “‘. . . [I]t is the jury 

rather than the reviewing court that weighs the evidence, 

resolves conflicting inferences and determines whether the 

People have established guilt beyond a reasonable doubt.’ 

[Citation.]” (Casares, supra, at p. 823.) “Thus, if the verdict is 

supported by substantial evidence, we must accord due deference 

to the trier of fact and not substitute our evaluation of a witness’s 

credibility for that of the fact finder.” (People v. Jones (1990) 51 

Cal.3d 294, 314.)

“In the context of first degree murder, ‘“premeditated” 

means “considered beforehand,” and “deliberate” means “formed 

or arrived at or determined upon as a result of careful thought 

and weighing of considerations for and against the proposed 

course of action.” [Citation.]’ [Citation.] ‘The process of 

premeditation and deliberation does not require any extended 

period of time. “The true test is not the duration of time as much 

as it is the extent of the reflection. Thoughts may follow each 

other with great rapidity and cold, calculated judgment may be 

arrived at quickly . . . .” [Citations.]’ [Citation.]” (People v. Lee

(2011) 51 Cal.4th 620, 636 (Lee).)

In People v. Anderson (1968) 70 Cal.2d 15 (Anderson), our 

Supreme Court described three types of evidence that indicate 

premeditation and deliberation: “(1) facts about how and what 

defendant did prior to the actual killing which show that the 

defendant was engaged in activity directed toward, and 

explicable as intended to result in, the killing—what may be 
13

characterized as ‘planning’ activity; (2) facts about the 

defendant’s prior relationship and/or conduct with the victim 

from which the jury could reasonably infer a ‘motive’ to kill the 

victim, which inference of motive, together with facts of type (1) 

or (3), would in turn support an inference that killing was the 

result of ‘a pre-existing reflection’ and ‘careful thought and 

weighing of considerations’ rather than ‘mere unconsidered or 

rash impulse hastily executed’ [citation]; (3) facts about the 

nature of the killing from which the jury could infer that the 

manner of killing was so particular and exacting that the 

defendant must have intentionally killed according to a 

‘preconceived design’ to take his victim’s life in a particular way 

for a ‘reason’ which the jury can reasonably infer from facts of 

type (1) or (2).” (Id. at pp. 26–27; see also People v. Lenart (2004) 

32 Cal.4th 1107, 1127 (Lenart).) “[The Supreme Court has]

sustain[ed] verdicts of first degree murder typically when there is 

evidence of all three types and otherwise requires at least 

extremely strong evidence of (1) or evidence of (2) in conjunction 

with either (1) or (3).” (Anderson, supra, 70 Cal.2d at pp. 26–27.)

“The Anderson factors are not the exclusive means for 

establishing premeditation and deliberation.” (Lenart, supra, 32 

Cal.4th at p. 1127.)

Analysis

Substantial evidence supports the jury’s finding that 

Allagoa murdered Goudeau after premeditation and deliberation. 

First, there was evidence from which a jury could reasonably 

infer that Allagoa brought a loaded gun to a fistfight, which 

suggests planning and conscious choice. Surveillance video 
14

depicts Allagoa leaving the parking lot in a van about 20 minutes 

prior to the fight. When Allagoa returns to the parking lot, he 

immediately walks over to a gray sport wagon and stands next to 

it for several minutes. No witnesses testified that they observed

Allagoa with a gun before he left the parking lot in the van, and 

the videos do not suggest that Allagoa had a gun until he 

returned to the parking lot, when a heavy object can be seen 

swinging in the pocket of his shorts in the manner that a gun 

would. The jury could reasonably infer from the evidence that 

Allagoa retrieved the gun to use it in the fight and “considered 

the possibility of a violent encounter” with Goudeau. (Lee, supra,

51 Cal.4th at p. 636.) Evidence that a defendant carried a

murder weapon to the scene of a killing has been held to raise the

reasonable inference “that he considered the possibility of 

homicide from the outset.” (People v. Steele (2002) 27 Cal.4th 

1230, 1250 [defendant brought knife used to murder victim into 

victim’s house].)

Second, Allagoa had several opportunities to reflect and 

change course during the altercation, but did not. Lias testified 

that prior to the confrontation, he saw Allagoa following Goudeau 

into the parking lot, leading to the confrontation between the 

men. Once the conflict ensued, but before Allagoa attempted to 

shoot Goudeau, Lias physically placed himself between the two 

men and pleaded with Allagoa not to harm Goudeau. Lias’s 

intervention provided Allagoa time for reflection, but Allagoa was 

not deterred. Despite Lias’s pleas, Allagoa tried to fire the gun at 

Goudeau unsuccessfully not once, but twice. 

When Allagoa pulled the trigger of the gun the first two 

times, the gun jammed. Because the gun was a semi-automatic, 

Allagoa had to clear the chamber and then rack the gun to load a 
15

new bullet before he could attempt to fire again. Allagoa was in a 

position to walk away from the fight. Allagoa and Goudeau were 

not in the throes of a physical altercation when Allagoa cleared 

the gun’s chamber; Lias was still between them shielding 

Goudeau from the gun. Allagoa had control of the situation. He

had time to think about whether he wanted to kill Goudeau as he 

prepared to fire again. 

Although Allagoa and Goudeau struggled over the gun 

before Allagoa pulled the trigger a third time, resulting in the 

fatal shot, Curran observed that Allagoa was approximately 20 

feet away from Goudeau. Allagoa had enough distance between 

himself and Goudeau to remove himself from the fight, and with 

a bullet chambered he had the means to protect himself 

immediately if Goudeau approached him too closely; instead he 

chose to take the third shot from a distance. The jurors could 

reasonably infer from these facts that Allagoa considered his 

actions multiple times during the altercation and made a 

conscious decision to shoot and kill Goudeau. Substantial 

evidence supports the jury’s premeditation and deliberation 

finding.

II. Continuity of Legal Representation at Trial

Allagoa next argues that his constitutional rights were 

violated because his case was tried by multiple attorneys who 

were not present for the entire trial. At the time proceedings 

began in this case, Allagoa’s counsel Alana Yakovlev was in the 

advanced stages of pregnancy. Natalie Lowis, a newly sworn in 

associate, assisted Yakovlev and other senior attorneys 

throughout the proceedings. Yakovlev was due to deliver her 
16

baby during trial, and informed the court that in the event that 

she went into labor her colleague Louis Kosnett would be ready 

and available to take over the case. Yakovlev assured the court 

that Kosnett would be apprised of all evidentiary rulings made in 

his absence. Allagoa expressly agreed to have another attorney 

take over the case.

7 Prior to the presentation of evidence, the 

trial court advised the jury that Yakovlev, Kosnett, and Lowis 

would all be representing Allagoa due to Yakovlev’s pregnancy:

“Mr. Allagoa . . . is represented by three attorneys. And

when you see Ms. Yakovlev stand up, you’ll know why. Her due 

date is around December 20th. But there are other counsel that 

will step right in. They’re going to probably be participating in 

these proceedings as we go on anyway. So Ms. Yakovlev is

representing Mr. Allagoa. Also Natalie Lowis, sitting at counsel 

table, is also representing Mr. Allagoa. And Mr. Louis Kosnett is 

representing Mr. Allagoa. Thank you so much.

“And by their vast numbers, it doesn’t mean anything 

about the case. It’s just because, number one, I just swore Ms. 

Lowis in. So she’s a very young attorney. But she’s very smart 

and she’s been practicing for a while but not licensed. So she’s 

here and she knows a lot about this case. And Mr. Kosnett I 

haven’t seen before today, but he’s here. So I don’t want you to 

assume that the case is more serious than it would be just 

because the defendant has a lot of attorneys. Okay?” 

7 In a pre-trial hearing, the trial court stated: “[Ms. 

Yakovlev] you are quite pregnant and you have maintained that 

there is another attorney ready, willing, and able to take over. I 

want to get a waiver of your client that that’s okay with him. [¶] 

Is that okay with you, Mr. Allagoa?” Allagoa responded, “Yes, 

your honor.”
17

Yakovlev appeared on all five days of pre-trial proceedings 

and on seven and a half of the twelve days of trial. She delivered 

her baby near the end of the trial, but then returned to make the 

closing argument to the jury. Kosnett appeared in court on nine 

and a half days of the trial, and appeared for some of the pre-trial 

proceedings as well. On December 23rd, the day that Yakovlev 

gave birth, neither she nor Kosnett could appear in court. Shirin 

Buckman, a senior attorney who attended Allagoa’s preliminary 

hearing and was familiar with the case, appeared in their stead. 

Lowis assisted all three senior attorneys throughout the 

proceedings and appeared on all but one day of the trial. Lowis

conducted examinations of multiple witnesses, but she was 

always supervised by a senior attorney in court.

Analysis

Attorney Experience and Continuity

Allagoa first complains regarding his representation by 

Lowis and the alleged lack of continuity in his legal

representation. Allagoa contends that Lowis, the newly sworn-in 

attorney who lacked the necessary experience, tried his case by 

default. He argues that it was not anticipated that she would 

represent him in that capacity, and that the trial court went so 

far as to advise the jury that Lowis was too young to try the case. 

Allagoa asserts that the lack of continuity in his representation 

combined with the fact that Lowis acted as the lead attorney 

conveyed to the jury that his counsel was not committed to his 

case.
18

Allagoa’s characterization of Lowis’s role in the trial and 

the trial court’s assessment of Lowis’s competence is inaccurate. 

The trial court’s advisement to the jury demonstrates that the 

court expected Lowis to participate in trying the case, and was 

confident in her abilities. The court stated that Lowis was smart, 

and knew the case well. The court told the jury that Lowis would 

not be trying the case alone because she was less experienced 

than the other attorneys representing Allagoa, but that she 

would be participating in the trial along with Yakovlev and 

Kosnett. This is exactly what occurred. Lowis appeared 

regularly and examined multiple witnesses, but she was always 

supervised by a more senior attorney when she did so.8 

Moreover, the trial court’s early explanation regarding 

Allagoa’s representation avoided any confusion on the part of the 

jury as to Allagoa’s attorneys’ commitment to his case. The jury 

knew that there would be a change in representation when 

Yakovlev went into labor. The jurors were advised that her 

absence would be due to medical necessity; they would not have 

8 Allagoa argues that he did not consent to the mid-trial 

substitution of Lowis as his attorney as required by Code of Civil 

Procedure sections 284 and 285, and did not make an informed 

and intelligent decision to have Lowis represent him. He also 

argues that the trial court should have advised him and protected 

him from the dangers of having an inexperienced lawyer act as 

the lead attorney in his case. We need not address these 

arguments in light of the fact that Lowis did not assume the role 

of lead attorney. She was supervised by a more senior attorney 

throughout the trial, as Yakovlev had assured the court that she 

would be. If Lowis held the position of lead attorney, both 

Kosnett’s and Buckman’s participation would have been 

unnecessary in Yakovlev’s absence.
19

inferred that Yakovlev (or Allagoa’s other attorneys) lacked 

commitment to Allagoa’s case as Allagoa alleges. To the 

contrary, Yakovlev demonstrated personal commitment to 

Allagoa’s defense—she returned to give the closing statement on 

Allagoa’s behalf, despite the fact that she had given birth only 

two weeks earlier and Kosnett was available and prepared to 

make closing arguments in her stead. Finally, the court’s remark 

about Lowis’s level of experience was part of its explanation to 

the jury as to the number of attorneys on Allagoa’s team, 

ensuring that there was no inference drawn that his case 

required an unusually large legal team. 

Ability to Argue Witness Credibility

Allagoa contends that Yakovlev’s absence for several days 

of trial prior to returning to make the closing argument to the 

jury prevented her from representing him effectively in 

argument. He asserts that, having missed several days of trial, 

Yakovlev was incapable of competently assessing and arguing 

witness credibility, and Curran’s credibility in particular.

The transcript of Yakovlev’s closing arguments belies this 

contention. Yakovlev argued that none of the prosecution’s

witnesses accurately testified regarding the events that occurred, 

and that, most importantly, their recollections contradicted what 

the video recordings showed: 

“[N]ot only do the witness testimonies not add up, they 

don’t match up with the objective evidence in this case, which is 

the video. [¶] [¶] [¶] . . . You can see a brick being thrown. You 

don’t think an object such as a gun being thrown would be 

depicted in the video? Especially given the witness’s version of 
20

the events, that it went across the parking lot and, according to 

Mr. Curran, it landed in the middle where the gate was, where 

the gate began on the other side of the parking lot. That’s still 

within the purview of the camera. That still would have been 

captured on the camera.” 

Yakovlev posited that Curran’s memory was unreliable 

because he and Benedetti had discussed the case prior to 

testimony and, as a result, had formed false memories and 

corroborated each other’s statements despite not having 

independently consistent recollections, as the defense’s memory 

expert testified often occurs. 

Yakovlev emphasized that “. . . Mr. Curran admitted he 

had very bad eyesight. The conditions were dark. . . . Mr. Curran 

also admitted that he thought he saw a cell phone when he saw 

something being thrown. He admitted he did not see the 

shooting.

“So what really happened? How about the I.D.? This is the 

best part. Mr. Curran immediately after the incident was shown 

a lineup, a photographic lineup. He did not choose Mr. Allagoa. 

He picked two fillers. ‘Fillers’ are other people that they try to 

disguise to make sure that there’s an accurate identification. He 

chose number 3 and number 5. He couldn’t make a choice. 

Guess what? The police didn’t retain this document. It wasn’t 

convenient for them to do so. It wasn’t helpful to their case 

because, when a person fails to make a positive identification, 

clearly, that’s not helpful for their case; so they destroyed this 

document. Subsequently, a year and a half later, 18 months, not 

only does Mr. Curran miraculously I.D. [the defendant], he 

remembers what number it was. ‘It was number 1.’ How 
21

awesome? A sudden drip of clarity. Speculation, speculation, 

speculation.” 

Yakovlev summarized: “Mr. Curran has bad eyesight. He 

doesn’t remember. He’s all over the place. His memory has 

failed.” She concluded: “You don’t have to be bound by their 

wiggly-wobbly version of what is just mere speculation and 

conjecture. It’s not reasonable for you to do so.” 

In an attempt to undermine the fact that Yakovlev devoted 

significant time arguing credibility in her statement to the jury, 

Allagoa contends that courts have held it is impossible for 

counsel to effectively argue regarding credibility if counsel was

not present to observe a witness’s testimony. Allagoa first 

analogizes his case to People v. Manson (1976) 61 Cal.App.3d 102 

(Manson). In Manson, co-defendant Van Houten’s trial counsel 

failed to appear after the parties had rested their cases, but 

before the trial court ruled on submitted jury instructions and the 

attorneys made closing statements. (Id. at p. 197.) The court 

appointed new trial counsel to represent Van Houten, over Van 

Houten’s objection. (Ibid.) Prior to closing statements, Van 

Houten’s counsel moved for a mistrial, arguing that his absence 

during witness testimony made it impossible for him to 

effectively argue regarding the witnesses’ credibility. (Id. at p. 

198.) The trial court denied the motion. (Ibid.) 

The Court of Appeal held that trial counsel’s representation 

of Van Houten was ineffective, citing the observations of the trial 

court made in another context earlier in the trial: “‘It would 

undoubtedly place an undue burden on any counsel coming into 

the case. At this date the trial has been in progress for five 

months; the transcript is in excess of 18,000 pages, and it would 

be a terrible burden to bring a new attorney into the case and 
22

expect him to adequately and effectively represent anyone for the 

remainder of the trial.’” (Manson, supra, 61 Cal.App.3d at p. 

200.) The appellate court held that counsel was incapable of 

arguing credibility in light of the circumstances, and that the 

disappearance of Van Houten’s first attorney after the 

submission of all evidence severely interrupted the continuity of 

representation necessary to a fair trial. (Ibid.) 

Allagoa argues that, in People v. Clark (2011) 52 Cal.4th 

856 (Clark), our Supreme Court approved the Court of Appeal’s 

opinion in Manson, stating that “counsel’s summation was 

constitutionally inadequate . . . [H]aving had no opportunity to 

observe the demeanor of the many witnesses at trial, he could not 

effectively argue the significant issue of credibility during closing 

remarks.” (Id. at p. 991.) Allagoa neglects to mention that the 

Supreme Court subsequently distinguished Manson from the case 

before it: “We conclude that the extreme circumstances 

presented in Manson are easily distinguishable from this case. 

In Manson, the timing of counsel’s substitution after the 

presentation of evidence was ‘truly crucial.’ (People v. Manson, 

supra, 61 Cal.App.3d at p. 203, fn. 102.) By contrast here, 

[defense counsel] joined the defense team shortly after

commencement of the prosecution’s case-in-chief and observed 

the testimony of most of the prosecution witnesses . . . . Further, 

he was assisted by [co-counsel], who was present for all of the 

guilt phase testimony. The trial court did not abuse its discretion 

in denying the mistrial motions in the present case.” (Clark,

supra, 52 Cal.4th at p. 991.)

Allagoa also relies on In re Rodriguez (1981) 119 

Cal.App.3d 457 (Rodriguez), arguing that “‘[t]he abandonment of 

Allagoa by Ms. Yakovlev without a contingency plan was 
23

misconduct which ‘transcends typical claims of incompetence.’

[Citation.]” In Rodriguez, the defendant filed a writ for habeas 

corpus alleging that he was deprived of a fair trial due to the 

combination of his counsel’s deficiencies and the prosecutor’s 

misconduct. (Id. at p. 464.) Rodriguez submitted the declaration 

of his second attorney, Smallwood, which detailed the situation. 

The declaration averred that Smallwood was admitted to practice 

approximately two months prior to appearing at Rodriguez’s trial 

with DeVilbiss, the attorney who Rodriguez hired to try the case. 

Because Smallwood was inexperienced, he and DeVilbiss agreed 

that he would assist by conducting legal research only. (Id. at p. 

465.) “When DeVilbiss did not show up for trial . . . [Rodriguez]

agreed that the trial would proceed with Smallwood as counsel. 

Rodriguez was not aware that Smallwood had no trial experience, 

and Smallwood did not tell him. [¶] [Two days later,] DeVilbiss 

phoned Smallwood to say he did not intend to participate further 

in the trial. Smallwood told [Rodriguez]that DeVilbiss was 

withdrawing from the case, but did not inform him of the 

possibility of moving for mistrial or requesting a further 

continuance to obtain an experienced trial lawyer. He assumed 

that because he was cocounsel of record he had no choice but to 

carry on alone. [¶] Smallwood then proceeded to represent 

[Rodriguez] when trial recommenced [the next day]. [That]

evening . . . , DeVilbiss agreed to return to make closing 

argument, provided the matter were [sic] continued [by several 

days]. The trial court granted a continuance. Smallwood and 

DeVilbiss did not, however, consult about the trial during the 

intervening weekend and they discussed the evidence of 5 

prosecution witnesses who testified during DeVilbiss’ absence for 
24

no more than 10 or 15 minutes before he presented his argument 

to the jury.” (Ibid.)

The Court of Appeal catalogued the prosecutor’s 

misconduct in Rodriguez’s case: the prosecutor cast aspersions 

on defendant and defense counsel at the preliminary hearing, 

commented on Rodriguez’s failure to testify to the jury (which it 

classified as “‘blatant’” Griffin9 error), improperly inquired 

regarding a police officer witness’s experience with defense 

counsel tactics, elicited an expert medical witness’s opinion of 

Rodriguez’s guilt, and elicited a psychologist witness’s opinion of 

the victim’s credibility. (Rodriguez, supra, 119 Cal.App.3d at pp. 

467–469.) The Court of Appeal concluded that due to the 

combination of Rodriguez’s attorneys’ conduct at trial, the 

prosecutor’s misbehavior, and the trial court’s inability to control 

the proceedings, “the net result was that the trial was turned into 

something of a circus, complete with sideshows, disappearing 

acts, clowning, and tricks which could only divert the jury’s 

attention from the serious business of determining guilt or 

innocence in accordance with proper standards.” (Id. at p. 467.)

Accordingly, it reversed the judgment. (Id. at p. 470.)

The conduct of defense counsel in Allagoa’s case is easily 

distinguishable from both Manson and Rodriguez. First, Allagoa 

was not abandoned without a contingency plan. Prior to the 

commencement of trial, Yakovlev anticipated the very likely 

event that she might give birth during the trial, and she put in 

place a sensible plan for representation of Allagoa; indeed, 

Allagoa expressly consented to that plan. In contrast, neither 

Van Houten nor Rodriguez had any notice that their attorneys

9 Griffin v. California (1965) 380 U.S. 609, 615.
25

might not represent them for the entire trial, let alone that there 

was a high probability of that occurring. 

Second, there was a significant lapse in continuity in Van 

Houten’s trial; Van Houten’s first attorney failed to appear in 

court without warning, and her second attorney was appointed 

without the benefit of any prior familiarity with the case. New 

counsel had to rely entirely on the 18,000-page record of a fivemonth trial to assess the witnesses’ credibility. Rodriguez’s 

counsel also failed to appear at trial without notice, leaving an 

inexperienced attorney to try the case alone. In contrast, Allagoa 

was represented by a team of attorneys who coordinated on his 

case from the outset, and had familiarity with the proceedings 

through personal observation of the trial, which spanned 12 days. 

Both Yakovlev and Kosnett were present for most of the trial. 

There was a single day—the day that Yakovlev gave birth—upon 

which neither Yakovlev nor Kosnett was present. However, on 

that day Buckman, an experienced attorney who attended 

Allagoa’s preliminary hearing, appeared as counsel along with 

Lowis. Lowis was present for all but one day of the proceedings 

and assisted all three senior attorneys, who had the benefit of her 

observations and impressions. Whereas Allagoa’s attorneys were 

able to share their first-hand knowledge of the trial, Van 

Houten’s counsel was forced to go into closing statements cold, 

without the benefit of either personal familiarity with the trial or 

the experience of colleagues to draw upon. Rodriguez’s second 

attorney, who had practiced for less than a year, conducted his 

first trial without assistance. 

Third, unlike counsel in Manson and Rodriguez, all of 

Allagoa’s attorneys, with the exception of Buckman, attended 

large portions of the trial, and personally observed and 
26

participated in the proceedings. Van Houten’s second attorney

had not been present for any witness testimony and had not 

personally observed the jury. Rodriguez’s original attorney 

returned to deliver closing arguments without appearing for a 

single day of trial or consulting with trial counsel for more than 

15 minutes.

Finally, none of Allagoa’s attorneys raised any concerns 

that they were unable to represent Allagoa competently. If there 

were such concerns, they could have been raised in a motion for 

new trial, in declarations in other post-trial proceedings, or 

otherwise expressed to the court. The court stated it was 

frustrated on one occasion—the day that Yakovlev gave birth and 

Buckman finished examining a witness that Yakovlev had begun 

examining the day before. The court admonished Lowis for

failing to properly advise Buckman of its rulings as to that

specific witness. The court stated that it would be appropriate 

for Buckman to question a new witness, but that it “was 

frustrating for the court that I have to go over all the rulings 

again” with regard to the witness Yakovlev had questioned the 

day before. The court did not indicate Buckman’s examination of 

the witness was detrimental to Allagoa, and Allagoa does not 

allege that he suffered prejudice as a result. 

Ability to Argue Heat of Passion

In closing arguments, Yakovlev painted Goudeau as the 

aggressor, and argued that Allagoa acted in self-defense or in 

imperfect self-defense. Allagoa contends that Yakovlev’s absence 

from trial prior to making closing statements caused her to 

overlook making the argument in closing that he had acted in the 
27

heat of passion and was guilty only of manslaughter. We reject 

this contention as well.

“Heat of passion is a mental state that precludes the 

formation of malice and reduces an unlawful killing from murder 

to manslaughter. Heat of passion arises if, ‘“at the time of the 

killing, the reason of the accused was obscured or disturbed by 

passion to such an extent as would cause the ordinarily 

reasonable person of average disposition to act rashly and 

without deliberation and reflection, and from such passion rather 

than from judgment.”’ [Citation.]” (People v. Beltran (2013) 56 

Cal.4th 935, 942, fn. omitted (Beltran).) 

“A killing committed under the unreasonable but good faith 

belief in the need to act in self-defense is a killing done without 

malice and also constitutes voluntary manslaughter.” (Beltran, 

supra, 56 Cal.4th at p. 942, fn. 3.) A killing committed in the 

reasonable good faith belief in the need to act in self-defense 

absolves liability for murder and manslaughter. (People v. 

Humphrey (1996) 13 Cal.4th 1073, 1082.)

 “A criminal defendant’s federal and state constitutional 

rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, 

§ 15) includes the right to effective legal assistance.” (People v. 

Mai (2013) 57 Cal.4th 986, 1009, italics omitted (Mai).) To 

establish ineffective assistance of counsel, “the defendant must 

first show counsel’s performance was deficient, in that it fell 

below an objective standard of reasonableness under prevailing 

professional norms. Second, the defendant must show resulting 

prejudice, i.e., a reasonable probability that, but for counsel’s 

deficient performance, the outcome of the proceeding would have 

been different.” (Ibid.) “‘“A reasonable probability is a 
28

probability sufficient to undermine confidence in the outcome.” 

[Citation.]’ [Citation.]” (In re Jones (1996) 13 Cal.4th 552, 561.) 

“When examining an ineffective assistance claim, a 

reviewing court defers to counsel’s reasonable tactical decisions, 

and there is a presumption counsel acted within the wide range 

of reasonable professional assistance . . . . [A] conviction will be 

reversed for ineffective assistance only if (1) the record 

affirmatively discloses counsel had no rational tactical purpose 

for the challenged act or omission, (2) counsel was asked for a 

reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation.” (Mai, supra, 57 Cal.4th at p. 1009.)

“If it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice,that course should be 

followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697.)

Here, counsel was not asked for an explanation. The jury 

was instructed on Justifiable Homicide: Self Defense (CALCRIM 

No. 505), Voluntary Manslaughter: Imperfect Self-Defense 

(CALCRIM No. 571), and Voluntary Manslaughter: Heat of 

Passion (CALCRIM No. 570). A competent attorney could make a 

reasonable tactical choice to focus on self-defense and imperfect 

self-defense rather than arguing that Allagoa acted in the heat of 

passion. 

The facts in Allagoa’s case arguably lent greater support to 

the theory that he acted in self-defense, whether perfect or 

imperfect, than in the heat of passion. As Allagoa himself 

pointed out in his opening brief, “[t]he record does not establish

what occurred before the fight that led to the shooting, or why 

[Allagoa and Goudeau] were fighting. Whatever inference might 

be drawn from the record’s silence would rest on sheer 

speculation.” There is simply no way of discerning what Allagoa 
29

and Goudeau were arguing about from the evidence presented, 

let alone whether the argument would cause a rational person to 

react rashly without reflection. 

The only evidence to support a heat of passion theory was

that Goudeau (1) threw down his shirt and (2) threw a brick at 

Allagoa. A reasonable person would not react rashly simply 

because another person threw his shirt on the ground. 

Additionally, even if we assume that an ordinary person would 

react rashly and without reflection if a brick was thrown at them, 

there was conflicting testimony as to whether Goudeau threw the 

brick before or after Allagoa pointed the gun at him, which casts

doubt as to whether Allagoa was reacting to Goudeau or acting as 

the aggressor. 

Given the state of the evidence, counsel could reasonably 

conclude that the jury would be more likely to find that Allagoa 

acted in self-defense. It was undisputed that Allagoa shot 

Goudeau immediately following a struggle over the gun. A jury 

could conclude that Allagoa feared for his life and shot Goudeau 

because he believed that if he did not, Goudeau might instead 

overpower him, take the gun, and shoot him. Such a conclusion

would result in either a full acquittal or a conviction for 

manslaughter, depending on the reasonableness of Allagoa’s 

belief. Counsel could reasonably decide that focusing on 

Goudeau’s irrational anger in the midst of the altercation would 

detract from these other, potentially more viable, defenses.

Additionally, Goudeau cannot show prejudice. The jury 

was instructed under CALCRIM No. 570 that: “A killing that 

would otherwise be murder is reduced to voluntary manslaughter 

if the defendant killed someone because of a sudden quarrel or in 

the heat of passion. [¶] The defendant killed someone because of 
30

a sudden quarrel or in the heat of passion if: [¶] 1. The defendant 

was provoked; [¶] 2. As a result of the provocation, the defendant 

acted rashly and under the influence of intense emotion that 

obscured his reasoning or judgment; [¶] AND [¶] 3. The 

provocation would have caused a person of average disposition to 

act rashly and without due deliberation, that is, from passion 

rather than from judgment.” 

The court further instructed the jury regarding first degree 

murder under CALCRIM No. 520: “The defendant is guilty of 

first degree murder if the People have proved that he acted 

willfully, deliberately, and with premeditation. The defendant 

acted willfully if he intended to kill. The defendant acted 

deliberately if he carefully weighed the considerations for and 

against his choice and, knowing the consequences, decided to kill. 

The defendant acted with premeditation if he decided to kill 

before completing the act that caused death. . . . [¶] . . . A decision 

to kill made rashly, impulsively, or without careful consideration 

is not deliberate and premeditated. On the other hand, a cold, 

calculated decision to kill can be reached quickly. The test is the 

extent of the reflection, not the length of time.”

To find Allagoa committed premeditated and deliberate 

murder, the jury had to consider and reject the possibility that he 

acted in the heat of passion beyond a reasonable doubt. (People v. 

Lopez (2020) 46 Cal.App.5th 505, 525 (Lopez) [“Jurors are 

presumed to follow the instructions they are given”].) Allagoa 

cannot demonstrate prejudice.
31

Prejudice 

Finally, Allagoa contends that, in light of the fact that the 

alleged deficiencies at trial were the result of the lack of 

continuity in his representation, he need not demonstrate 

prejudice. Allagoa argues that reversal is constitutionally 

compelled under Manson, Clark, Rodriguez, and United States v. 

Cronic (1984) 466 U.S. 648 (Cronic). These cases do not support 

his assertion. As is clear from our discussion of Manson and 

Rodriguez above, both defendants suffered significant prejudice. 

In Clark, the court distinguished Manson, and affirmed the 

judgment. (Clark, supra, 52 Cal.4th at p. 1008.) In Cronic, the 

United States Supreme Court reversed the Court of Appeals’ 

judgment because the respondent did not “demonstrate that 

counsel failed to function in any meaningful sense.” (Cronic, 

supra, 466 U.S. at p. 666.) In short, Allagoa points to no cases in 

which a court held that counsel was ineffective without a showing 

of prejudice. The contention is without merit.

III. Ineffective Assistance of Counsel Related to Evidence 

Obtained From The Search of Allagoa’s Cell Phone 

Officers seized Allagoa’s cell phone when they arrested him 

on November 23, 2016, but police did not obtain a warrant to 

search the contents of the phone until April 28, 2018. As relevant 

to Allagoa’s arguments here, the cell phone contained evidence of 

his flight after the shooting, as well as several incriminating 

internet searches made between the date of the murder and the 

date of his arrest, all of which were admitted at trial. Allagoa 

argues that his counsel was ineffective for: (1) failing to timely 
32

move to suppress the cell phone evidence on the ground that law 

enforcement’s delay in seeking a warrant to search the phone was 

unreasonable; and (2) failing to object to the internet searches 

relating to Allagoa’s interest in retaining an attorney on the 

specific ground that their admission impinged on his 

constitutional right to counsel. 

Allagoa contends that he was prejudiced by admission of 

evidence of his flight and several internet searches—including 

“‘Hawthorne shooting,’” “‘a good attorney,’” a lawyer for “‘a 

felony’”, “‘how do police tap your phone,’” as well as “‘how to beat 

a murder case’”—which he argues were powerful evidence of 

consciousness of guilt, as demonstrated by the fact that the 

prosecutor focused on this evidence in closing argument.

Allagoa has failed to establish prejudice. It was 

uncontested that Allagoa shot and killed Goudeau. The only 

issue was his intent in doing so. While the evidence of his flight 

and the internet searches arguably demonstrated consciousness 

of guilt, they were not probative of premeditation and 

deliberation, which the jury found beyond a reasonable doubt. 

The jury necessarily based its premeditation finding on the 

evidence that we discussed in Section I of this opinion, as nothing 

Allagoa did after the shooting (evidenced by the material 

contained in his cell phone) suggested that he decided to kill after 

careful thought and weighing of the considerations for and 

against killing. Given the strong evidence that Allagoa killed 

Goudeau and acted with premeditation and deliberation, it is not 

reasonably probable that the outcome of the proceedings would 

have been different if the flight and internet search evidence had 

been suppressed or excluded. Allagoa has not met his burden of 

demonstrating ineffective assistance of counsel. 
33

IV. Alleged Prosecutorial Misconduct 

“‘Under California law, a prosecutor commits reversible 

misconduct if he or she makes use of “deceptive or reprehensible 

methods” when attempting to persuade either the trial court or 

the jury, and it is reasonably probable that without such 

misconduct, an outcome more favorable to the defendant would 

have resulted. [Citation.] Under the federal Constitution, 

conduct by a prosecutor that does not result in the denial of the 

defendant’s specific constitutional rights—such as a comment 

upon the defendant’s invocation of the right to remain silent—but 

is otherwise worthy of condemnation, is not a constitutional 

violation unless the challenged action “‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due 

process.’” [Citations.] [¶] “‘[A] defendant may not complain on 

appeal of prosecutorial misconduct unless in a timely fashion—

and on the same ground—the defendant made an assignment of 

misconduct and requested that the jury be admonished to 

disregard the impropriety. [Citation.]’”’ [Citation.] A defendant 

who fails to object at trial ‘waive[s] any error or misconduct 

emanating from the prosecutor’s argument that could have been 

cured by a timely admonition.’ [Citation.]

“‘“‘[In closing statements,] the prosecution has broad 

discretion to state its views as to what the evidence shows and 

what inferences may be drawn therefrom.’” [citation.] . . . .’ 

[Citation.] ‘When we review a claim of prosecutorial remarks 

constituting misconduct, we examine whether there is a 

reasonable likelihood that the jury would have understood the 

remark to cause the mischief complained of. [Citation.]’
34

[Citation.] ‘To prevail on a claim of prosecutorial misconduct 

based on remarks to the jury, the defendant must show a 

reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner. 

[Citations.] In conducting this inquiry, we “do not lightly infer” 

that the jury drew the most damaging rather than the least 

damaging meaning from the prosecutor’s statements.’ 

[Citation.]” (People v. Spector (2011) 194 Cal.App.4th 1335, 

1402–1403.)

Analysis

Allagoa complains that the prosecutor committed 

misconduct by (1) insinuating that he had evidence of Allagoa’s 

motive for killing Goudeau that was not presented at trial, (2) 

arguing that Allagoa retrieved a gun shortly before the shooting

based on speculation unsupported by the evidence, (3) mis-stating 

the prosecution’s burden of proof beyond a reasonable doubt, (4) 

arguing that Allagoa’s exercise of his right to counsel proved his 

guilt, and (5) improperly commenting on Allagoa’s decision not to 

testify at trial. 

Allagoa concedes that his counsel did not object to the 

alleged misconduct at trial, but argues that his counsel provided 

ineffective assistance by failing to object. 

In all but one instance—the prosecutor’s argument 

regarding Allagoa’s exercise of the right to counsel—we conclude 

that the prosecutor’s remarks did not amount to misconduct,

because the jury would not have construed the remarks in the 

manner Allagoa claims. As to those instances, it necessarily 

follows that Allagoa waived the objections and that counsel did 
35

not provide ineffective assistance: there was no harm to cure, and 

Allagoa suffered no prejudice.

With respect to Allagoa’s claim that the prosecutor’s 

comments on his exercise of the right to counsel were 

inappropriate and prejudicial, we conclude that the remarks 

constitute misconduct, but that any harm could have been cured 

by an admonition, and that counsel could have had a reasonable 

tactical reason for not objecting in closing arguments.

Statements Regarding Motive

In her closing statement, defense counsel argued that 

Allagoa had no motive to murder Goudeau: “[W]here’s the 

evidence? You’re doing mere guesswork. Where’s the person 

from the van? Why aren’t they on the stand?” 

In rebuttal, the prosecutor responded: “One thing that 

[defense counsel] said, she said, ‘we don’t even know what the 

motive was.’ There’s a jury instruction about that. I wish I could 

stand here and tell you why. And I have my own reasons, but the 

law doesn’t allow me to just spout out what I think happened 

unless it comes out in testimony. I’m not allowed to do that.

“The fact of the matter is we know these two guys wanted 

to fight, and we know defendant brought a gun to the fight. 

Whatever the reason -- what possible justification could there be 

for someone -- right? -- it doesn’t justify it. It maybe helps us to 

answer some questions, but you are not required to understand 

why he wanted to kill [Goudeau]. All you’re asked to do is rule on 

the evidence.” (Italics added.) 

Allagoa contends that the prosecutor’s statements (as 

indicated in italics) intimated that the prosecutor had personal 
36

knowledge of Allagoa’s guilt that was not based upon the 

prosecutor’s legitimate inferences from the record, in violation of 

Allagoa’s constitutional right to confront witnesses. 

We cannot conclude that the jury would have understood 

the prosecutor to mean that he had evidence beyond the record 

that proved Allagoa had motive to kill, and that the jury should 

rely on this unidentified extra-record evidence to find Allagoa 

guilty. The prosecutor’s remarks informed the jury that, 

although the prosecutor would have liked to argue that Allagoa 

had a motive to kill Goudeau, he could not “just spout out” his 

own opinions without basis to support them in the record. The 

prosecutor further explained that he did not have to prove motive 

for the jury to find Allagoa guilty of murder, and he advised the 

jury that it could verify the rules regarding motive in the 

instructions. The prosecutor did not violate Allagoa’s right to 

confront witnesses by impermissibly placing statements of a 

witness who was unavailable for cross-examination before the 

jury.10

10 The law upon which Allagoa relies does not support his 

argument that a prosecutor who indicates that he may have his 

own opinions based on unidentified evidence outside of the record

commits misconduct that amounts to a violation of the 

constitutional right to confrontation. In People v. Bell (1989) 49 

Cal.3d 502, the prosecutor deliberately introduced inadmissible

and prejudicial evidence by reading a police report into the record 

over defense counsel’s sustained objection, in the course of 

examining an expert witness. The Supreme Court held that the 

statements constituted “particularly egregious [misconduct] 

because the prosecutor put before the jury the hearsay statement 

of a person who was not available for cross-examination, and that 

statement suggested that defendant not only possessed a weapon 

like that believed to have been used by the murderer, but was 
37

Inference that Allagoa Retrieved the Gun Just Prior to 

the Shooting

In his closing statement, the prosecutor commented that it 

would be reasonable to conclude that Allagoa retrieved a gun 

when he left the parking lot in the van or when he walked over to 

the gray sport wagon right after he returned to the parking lot. 

This was a fair comment on the evidence. As we discussed in 

Section I, none of the witnesses testified to seeing a gun before 

the fight broke out. The video depicts Allagoa with a heavy object 

swinging in his pocket only after he returned to the parking lot 

and walked away from the sport wagon. With no evidence that 

Allagoa had a gun before he left the parking lot and both (1) 

eyewitness testimony that he possessed and used a gun after 

returning to the parking lot and (2) video showing an object 

consistent with Allagoa having a gun in his pocket after 

returning to the parking lot, it is a reasonable inference that 

Allagoa obtained the gun either when he left the parking lot in 

the van or retrieved it from the sport wagon immediately after he 

returned. The prosecutor’s comment was not inappropriate. (See 

People v. Hamilton (2009) 45 Cal.4th 863, 928 [prosecutors have

wide latitude during argument, and may be vigorous as long as it 

amounts to fair comment on the evidence].)

cleaning it on the eve of the robbery/murder.” (Id. at p. 533.) 

Here, the prosecutor did not read specific inadmissible 

statements into the record in contravention of a trial court’s 

explicit ruling. The cases are simply not comparable.
38

Articulation of the Beyond a Reasonable Doubt 

Standard

In closing arguments, the prosecutor stated: 

“[A]pply the evidence to the law and follow the law. That’s 

it. You’ve got those instructions. You can take them back.” 

* * *

“[Beyond a reasonable doubt is] [a]n abiding conviction [in 

the defendant’s guilt]. Here’s what I can tell you about reasonable 

doubt. It’s the exact same standard that’s used in every criminal 

case that’s tried in this country. It’s been around since long before 

all of us were born, and it’s probably going to be around long after

we’re all gone. That is the standard. [¶] Here’s what we know. 

You have to be reasonable. Right? It’s the fundamental word in 

that description. Be reasonable. What is reasonable under the 

circumstances? The other thing I want you to keep in mind, part 

of that instruction, ‘Everything in life is open to some possible or 

imaginary doubt.’ We can imagine things that could have 

happened. But what we have to do is rely on evidence to draw 

conclusions. And if the evidence doesn’t prove something, that’s 

okay. Right? But you can’t speculate about what might have 

happened. You have to look at the evidence . . . [N]ot what I say, 

not what [defense counsel] says. [¶] . . . And if you can draw two 

conclusions, one that points toward innocence and one that points 

toward guilt, you have to choose the one that points to innocence. 

[¶] . . . [But] that conclusion has to be reasonable.” (Italics 

added.) 

Allagoa argues that, in the italicized portion of the 

comments quoted above, the prosecutor misstated the 

prosecution’s burden of proving guilt beyond a reasonable doubt 
39

by telling the jury that it could find him guilty based on a 

reasonable view of the evidence. 

Viewed in context, we cannot conclude that the jury would 

have misunderstood the beyond a reasonable doubt standard 

based on the prosecutor’s arguments. First, the prosecutor 

reminded the jury that the trial court’s instructions controlled, 

not the attorneys’ arguments. Second, the prosecutor quoted the 

correct definition of the beyond a reasonable doubt standard from 

the instruction—“[a]n abiding conviction”. Third, in the 

challenged portion of his statements, the prosecutor argued only 

that the jury could not find Allagoa innocent on the basis of 

speculation, not that the jury must find him guilty if that was a 

reasonable conclusion, regardless of whether there was a 

contrary reasonable conclusion. Fourth, the prosecutor correctly

stated that if there were two reasonable conclusions to be drawn, 

the jury was bound to draw the one favoring innocence. 

Additionally, defense counsel devoted considerable time to 

the standard and stated it clearly and correctly in closing 

argument: “Beyond a reasonable doubt is an abiding conviction 

that the charge is true.”

Finally, the trial court correctly instructed the jury on the 

beyond a reasonable doubt standard under CALCRIM No. 220, 

and instructed the jury to ignore any contrary argument by 

counsel under CALCRIM No. 200. We presume that the jury 

understood the trial court’s instructions and followed them as 

given. (Lopez, supra, 46 Cal.App.5th at p. 525.)
40

Comments Relating to Allagoa’s Decision to Retain 

Counsel

Allagoa argues, and the People concede, that the 

prosecution’s assertion in closing argument that his internet 

search of the phrase “‘How much does a good attorney cost?’” was 

the kind of question “that a guilty person asks” amounted to

misconduct. We agree. It is well established that comment on a 

person’s decision to exercise the constitutional right to 

representation by counsel penalizes that right and is prohibited. 

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 64–65.) 

However, if counsel had timely objected, any prejudice 

could have been cured by an admonishment and/or appropriate 

instruction by the trial court that the prosecutor’s comment on 

defendant’s constitutional right to counsel was improper and 

should be disregarded. This was not a case where identity was at 

issue. It was uncontested that Allagoa shot Goudeau and that 

Goudeau died as a result of that gunshot wound. The only 

question was whether Allagoa was justified in shooting Goudeau 

or whether his reason for shooting him (self-defense, imperfect 

self-defense, or heat of passion) mitigated his culpability. Under 

the circumstances, it would be reasonable for anyone to seek legal 

representation, regardless of guilt, which the trial court could 

have explained to the jury. Because he failed to object and the 

error was curable, Allagoa forfeited the contention.

Moreover, we cannot say that counsel was ineffective for 

failing to object on this record. As we have explained, this is not 

a case in which the danger of prejudice due to the remarks was 

great, and “‘the decision . . . whether to object to comments made 

by the prosecutor in closing argument is a highly tactical one.’” 
41

(People v. Johnsen (2021) 10 Cal.5th 1116, 1165.) Defense 

counsel may reasonably decide to rely on his or her own 

counterarguments rather than objecting to the prosecutor’s 

comments in closing statements. (Id. at p. 1166.) Although 

defense counsel did not have the opportunity to explain her 

decision in this case, it appears that this was the tactical decision 

she made. 

In response to the prosecutor’s remarks, defense counsel 

told the jury that Allagoa was very young when the shooting 

occurred and that he was scared. Counsel explained that Allagoa

was arrested after he elected to return to Los Angeles of his own 

accord. She argued: “The internet searches presented by the 

District Attorney regarding hiring a lawyer, regarding police 

tactics, how to beat a criminal charge shows that he was looking 

to participate in the justice system head-on rather than escape 

it.” 

Considering that the numerous other incriminating 

internet searches Allagoa made—including “‘how strict is the 

Canadian border on warrants,’” and “‘how to beat a murder 

case’”—could permissibly be used against him, a strategy that 

encompassed all of Allagoa’s potentially incriminating searches 

was a reasonable tactic. Counsel did not provide ineffective 

assistance.

Comments That Allagoa Failed to Call Available 

Witnesses

Finally, Allagoa claims that the prosecutor improperly 

referred to his failure to testify in closing argument. “‘[T]he Fifth 

Amendment . . . forbids either comment by the prosecution on the 
42

accused’s silence or instructions by the court that such silence is 

evidence of guilt.’ (Griffin v. California (1965) 380 U.S. 609, 615.) 

The prosecutor’s argument cannot refer to the absence of 

evidence that only the defendant’s testimony could provide. (See 

People v. Carter (2005) 36 Cal.4th 1215, 1266.) The rule, 

however, does not extend to comments on the state of the 

evidence or on the failure of the defense to introduce material 

evidence or to call logical witnesses. (See People v. Lewis (2009) 

46 Cal.4th 1255, 1304.)” (People v. Brady (2010) 50 Cal.4th 547, 

565–566 (Brady).)

In closing arguments, defense counsel stated that there 

were witnesses to the shooting that detectives should have 

interviewed, implying that the police investigation was 

incomplete and unfair to Allagoa: “Detectives saw there were a 

bunch of people -- you see there’s people in the video, not only on 

the one side of the parking lot near the liquor store but also 

where the actual scene took place . . . . Why weren’t these people 

interviewed? They have ways of finding these people. Why not?” 

In rebuttal, the prosecutor responded that he did not have 

a way to locate these witnesses, but that, if defense counsel 

believed they would exonerate Allagoa, she could have located 

them because the witnesses were people Allagoa knew:

“Ms. Yakovlev said, ‘Look, there are a lot of things that 

could have been presented.’ The subpoena power of the court 

works both ways. The defense has every right to present 

evidence in the same way that we do. . . . [¶] [Ms. Yakovlev] said, 

‘What about all these other people from the crime scene?’ Look, 

the defendant was hanging out there. He knows who was there. If 

they wanted to bring them in, they could have. . . . The guy that 

was in the van -- right? I don’t know who he was. I can’t look at 
43

the video and tell you. You know who knows? The defendant. 

They have access to that information. They want to call those 

people to testify and present a case, they are allowed to do that.” 

Allagoa argues that the italicized comments are improper 

remarks relating to his decision to exercise his constitutional 

right not to testify. A fair reading of the prosecutor’s comments 

does not support this interpretation. The prosecutor argued that 

if the defense felt that the witnesses in the parking lot would 

exonerate him, Allagoa knew how to find them, and the defense 

could have subpoenaed those witnesses to testify on Allagoa’s 

behalf. Nothing in the passage relates to Allagoa’s decision not to 

testify himself, and it would not have been necessary for Allagoa

to testify for the defense to identify potential witnesses. The 

prosecutor’s remarks were a permissible comment on the 

defense’s failure to call logical witnesses in support of Allagoa’s 

case. (Brady, supra, 50 Cal.4th at p. 566.)

Additionally, the trial court instructed the jury under 

CALCRIM No. 355 that Allagoa had a constitutional right not to 

testify, that the burden was on the prosecution to prove his guilt 

beyond a reasonable doubt, and that the jury should not allow 

Allagoa’s exercise of his right not to testify to influence its 

decision in any way. (Lopez, supra, 46 Cal.App.5th at p. 525 

[“Jurors are presumed to follow the instructions they are given”].)

V. Evidence of Goudeau’s Past Violent Conduct

Under Evidence Code section 1103, subdivision (a)(1), the 

defendant in a criminal action may “offer evidence of the victim’s 

‘character or a trait of character (in the form of an opinion, 

evidence of reputation, or evidence of specific instances of 
44

conduct)’ in order ‘to prove conduct of the victim in conformity 

with the character or trait of character.’” (People v. Fuiava (2012) 

53 Cal.4th 622, 695 (Fuiava).) “Once the defendant has offered 

such evidence, the prosecution is permitted to offer its own 

character evidence of the victim to rebut the defendant’s 

evidence. [Citation.] Further, if the defendant has offered 

‘evidence that the victim had a character for violence or a trait of 

character tending to show violence,’ the prosecution is permitted 

to offer ‘evidence of the defendant’s character for violence or trait 

of character for violence (in the form of an opinion, evidence of 

reputation, or evidence of specific instances of conduct)’ in order 

‘to prove conduct of the defendant in conformity with the 

character or trait of character.’ [Citation.] In other words, if . . . 

a defendant offers evidence to establish that the victim was a 

violent person, thereby inviting the jury to infer that the victim 

acted violently during the events in question, then the 

prosecution is permitted to introduce evidence demonstrating 

that (1) the victim was not a violent person and (2) the defendant 

was a violent person, from which the jury might infer it was the 

defendant who acted violently.” (Id. at pp. 695–696.)

“[Evidence Code] section 352 permits [the trial court] to 

exclude evidence if in the court’s discretion ‘its probative value is 

substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or 

of misleading the jury.’ Like all proffered evidence, character 

evidence is subject to exclusion under that section. [Citation.]” 

(People v. Shoemaker (1982) 135 Cal.App.3d 442, 448

(Shoemaker).)
45

We review the trial court’s rulings regarding the admission 

of evidence under Evidence Code section 352 for abuse of 

discretion. (People v. Barnett (1998) 17 Cal.4th 1044, 1118.) 

“‘The discretion is as broad as necessary to deal with the great 

variety of factual situations in which the issue arises, and in most 

instances the appellate courts will uphold its exercise whether 

the conviction is admitted or excluded.’” (People v. Hinton (2006) 

37 Cal.4th 839, 887; accord, People v. Clark (2011) 52 Cal.4th

856, 932.)

Proceedings

Prior to trial, defense counsel successfully moved to 

introduce evidence pursuant to Evidence Code section 1103, 

subdivision (a)(1), that Goudeau had sustained a prior conviction 

for misdemeanor battery in 2015. Defense counsel also sought 

admission of statements by Benedetti and Derrick Bynum that 

Goudeau was seen fighting in the parking lot on prior occasions.

Goudeau’s Battery Conviction

With respect to Goudeau’s battery conviction, the trial 

court stated that it would admit the evidence and instruct the 

jury on battery so that it would understand battery “can be the 

slightest touching if it’s an unwanted touching.” The court would 

further instruct that “they are not to assume what the facts are 

in that case, just the fact that he had a conviction for battery.” 

The court would “instruct the jurors that we have no information 

at this time about the underlying facts of that case.” 
46

Benedetti’s Testimony

Defense counsel informed the court that she had received 

audio transcripts of an interview Sergeant Ramirez conducted of 

Benedetti the day after the murder in which Benedetti stated 

that he frequently saw Goudeau “with markings on his face and a 

bloody nose as though he were fighting.” Counsel did not know 

when Benedetti saw these fights. The trial court responded, 

“That’s not sufficient because [Benedetti] has no idea how 

[Goudeau] got the markings.” Defense counsel later stated that 

Benedetti previously stated:“‘I’ve seen him get into a fight. I just 

don’t know who he was fighting with, you know what I mean?’” 

Benedetti also stated that the last fight he saw occurred “‘Like

three months ago or something like that.’” 

The trial court ruled the evidence inadmissible under 

Evidence Code section 352 because “[Benedetti is] so uncertain 

about that. I’m not going to allow that because I am going to 

allow the Bynum [testimony] and the prior [battery] 

misdemeanor. And this, to me, we don’t know if it’s an 

argument.” The court stated that it would revisit the matter if 

defense counsel was able to discover more specific information 

about the fights that Benedetti allegedly witnessed. Counsel 

added that Benedetti also stated,“‘Well, I seen him get into a 

fight before with a bloody nose. And fighting -- fighting with a 

bloody nose.’” The court permitted counsel to question Benedetti 

in court outside the presence of the jury and delayed a final

ruling until more information could be gathered. 

A few days later the court questioned Benedetti outside the 

presence of the jury regarding whether he had ever seen Goudeau 

engage in a fist fight. Benedetti responded that he had seen 
47

Goudeau fighting “a couple times.” He could not remember when 

the most recent fight occurred. He did not know who Goudeau 

was fighting with, or which person started the altercation. 

Someone told Benedetti that Goudeau got punched and had a 

bloody nose, but he did not see the fight occur. The trial court 

questioned Benedetti regarding whether there was a specific 

incident that he could recall, but Benedetti could not remember 

dates or details. Benedetti’s memory was not refreshed by 

hearing a portion of his interview with Sergeant Ramirez in 

which he made statements about fights involving Goudeau read 

aloud. 

The trial court ruled the evidence inadmissible under 

Evidence Code section 352. The court found that Benedetti’s 

testimony was not “sufficiently concrete.” Benedetti did not know 

who started the fights, who was involved, and it was not certain 

that Benedetti even saw Goudeau with a bloody nose. 

The next day, defense counsel argued to the court that it 

did not matter who the aggressor was. She stated, “I think 

generally the fact that he’s fighting at that location creates a type 

of a character that can be -- should be explored by the defense.” 

The trial court responded, “And I just want to state very clearly 

for the record, he was so uncertain as to when, what happened, 

how much he saw, that it has such a small amount of probative 

value as to whether [Goudeau] would be the aggressor. . . I am 

denying the motion under [Evidence Code section] 352.”

Bynum’s Testimony

Defense counsel represented that Bynum would testify that 

“Goudeau was seen fighting directly at that same parking lot the 
48

night before the murder.” The court stated that it would allow 

Bynum’s testimony for the purpose of showing that Goudeau was 

the aggressor, but that “he has to have direct knowledge of it. He 

has to have seen it. He can’t have just heard about it.” Defense 

counsel stated that Bynum’s declaration stated he had seen the 

fight. 

At a hearing outside the presence of the jury, it was 

established that Bynum had sustained three convictions for

crimes of moral turpitude within a few years of trial, which the 

trial court ruled it would allow the prosecution to use for 

impeachment. Defense counsel proffered that Bynum would 

testify that a few days before the murder Goudeau was “acting 

aggressively” towards him and they had a confrontation. Bynum 

smelled alcohol on Goudeau’s breath. Goudeau also “threw a 

punch” at Bynum and picked up a brick. 

Bynum appeared at the hearing for questioning. He stated 

that he did not want to be in court, had nothing to do with the 

case, and was likely to lose his job if the parties called him to 

testify. The court permitted the prosecutor and a detective to 

interview Bynum over a break. Afterwards,the prosecutor 

informed the court and defense counsel that Bynum contradicted 

the defense’s proffer: “[Bynum] said that a brick was not thrown 

at him. He said that he owed Mr. Goudeau money stemming 

from having purchased some drugs from him. He said that Mr. 

Goudeau came at him in a way that he didn’t like. They got into 

a fight. Afterward, he gave him the money, they shook hands, 

and they went their separate ways.” 

The trial court asked defense counsel if he planned to call 

Bynum. Counsel stated that he had concerns about doing so: 

“Well, my understanding is that introduction of evidence showing 
49

the victim’s character for violence would then allow the 

prosecution to rebut with evidence of defendant’s violent 

character.” 

The prosecutor then stated, “And I should mention that . . .

Mr. Bynum also said he’d been in a fight with the defendant.” 

Analysis

Goudeau’s Prior Battery Conviction

Allagoa first contends that defense counsel provided 

ineffective assistance because he failed to introduce the fact of 

Goudeau’s 2015 battery conviction. He asserts that there could 

be no reasonable tactical reason for counsel’s decision. We 

disagree.

There were several reasonable tactical reasons for counsel 

to avoid introduction of the prior conviction. First, the conviction 

was for misdemeanor battery and the trial court ruled that it 

would give a limiting instruction informing the jury that battery 

can be the slightest touching and that the jurors could not 

speculate regarding the underlying facts of the conviction. Under 

the circumstances, the conviction was of very limited probative 

value to the jury because the jury had to accept that it was 

unknown whether Goudeau engaged in a physical fight. 

Additionally, the prosecution could have called Bynum to 

testify regarding Allagoa’s conduct under Evidence Code section 

1103. Bynum’s statements regarding his interaction with 

Goudeau were contradictory, and his most recent statements 

were more favorable to Goudeau. He stated unequivocally that 

he fought with Allagoa. Bynum was an unwilling witness, and 
50

just as likely to hurt Allagoa’s case as to help it. Having him

testify would be risky, and could undermine the defense’s theory 

that Allagoa was not the aggressor and instead acted in selfdefense. Under the circumstances, we cannot conclude that 

defense counsel’s performance was deficient. (Mai, supra, 57 

Cal.4th at p. 1009.)

Goudeau’s Prior Violent Conduct

Allagoa further contends that the trial court abused its 

discretion and violated his “compulsory process to produce 

evidence and due process right to a fair trial” by excluding 

Benedetti’s testimony that Goudeau had previously engaged in 

fistfights in the liquor store parking lot under Evidence Code 

section 352. We disagree. 

As the trial court stated, Benedetti’s testimony had very 

limited, if any, probative value. He could not say when the fights 

took place, who Benedetti was fighting, or who instigated the 

fights. There was no question that a fight took place prior to the 

shooting. The issue was whether Goudeau or Allagoa was the 

aggressor. Benedetti’s testimony would not illuminate that issue 

for the jury. The trial court did not abuse its discretion in 

determining that the probative value of the evidence was 

outweighed by the possible prejudice, consumption of time, and 

likelihood of confusing or misleading the jury. (Shoemaker, 

supra, 135 Cal.App.3d at p. 448.)

As a general rule, “a defendant has no constitutional right 

to present all relevant evidence in his favor.” (People v. Guillen

(2014) 227 Cal.App.4th 934, 1019 (Guillen).) Application of the 

ordinary rules of evidence does not impermissibly infringe on the 
51

defendant’s right to present a defense. (People v. Gonzales (2012) 

54 Cal.4th 1234, 1258 (Gonzales).) Thus, constitutional 

principles are not offended by rulings that exclude evidence that 

is repetitive, marginally relevant, or that poses an undue risk of 

prejudice or confusion of the issues. (Id. at p. 1259.) In order for 

a defendant’s constitutional rights to override application of the 

ordinary rules of evidence, the proffered evidence must have 

more than slight relevance to the issues and must be of 

substantial and significant value. (Guillen, supra, at p. 1019.) 

Given the slight relevance of Benedetti’s testimony, the trial 

court did not violate Allagoa’s constitutional rights.

VI. Admission of Facebook Evidence that Allagoa Possessed 

a 9 Millimeter Gun

Prior to trial, the prosecution sought to admit evidence of 

Allagoa’s posts on Facebook demonstrating that he purchased a 9 

millimeter handgun approximately three weeks prior to the 

murder, that the gun was in his possession five days before the 

murder, and that he was not inclined to lend it to a friend who 

asked to borrow it. 

On August 5, 2016, Allagoa responded to a post containing a 

photo of a handgun: 

“[Allagoa:] Oh shit the cueta. 

“[The poster, Brian Childress:] I just cop it 4 450.” 

On August 6, 2016, Allagoa replied. 

“[Allagoa:] I want one. 

“[Childress:] He only had one but he said he got a 9 350. 

“[Allagoa:] Tell him I want it A.S.A.P. 

“[Childress:] Alright.” 
52

“[Allagoa:] You told him?”

On August 26, 2016, Allagoa exchanged posts with Peirce 

Wolf Hayley Mickens:

“[Mickens:] Aye cuh Imma need the strap TM at 1:30 some 

[guys] trippin on us.

“[Mickens:] Over a bitch.

“[Allagoa:] RN?

“[Mickens:] Imma come to Thorne from Lawndale around 1 

or 2. Imma need it by then cause them [guys] tryna pull up TM.

“[Mickens again:] They already did today.

“[Allagoa:] “I’ll post wit you but I’m not givin it to you.

“[Mickens:] Imma give it back foo. Don’t trip. It’s just foe 

today.

“[Allagoa:] Sound dumb.” 

Defense counsel objected to the Facebook evidence on the 

grounds of authentication and undue prejudice under Evidence 

Code section 352. The trial court ruled the evidence would be 

admitted if it could be established that the posts were business 

records obtained from Facebook through a warrant that could be 

connected to Allagoa. It found the posts to be “very relevant and 

more probative than prejudicial” because the inference to be 

drawn was that the holder of the Facebook account had a gun five 

days before the murder that he retained in his possession. 

Moreover, the post was not remote in time. It was written just 

before the killing, which was committed with a firearm. 

At trial, prosecution witness Alex Manica, a crime analyst 

from the Los Angeles Sheriff’s Department, testified regarding 

the slang used in the posts. He explained that “cueta” meant 

gun, “I just cop it 4 450” meant that Childress just bought a gun 

for $450, and “he said he got a 9 350” meant that the person 
53

Childress purchased the gun from had a 9 millimeter firearm 

that he would sell to Allagoa for $350. 

Manica testified that “Aye cuh Imma need the strap TM at 

1:30 some [guys] trippin on us. Over a bitch.” meant hey friend, 

I’m going to need the gun tomorrow because some guys want to 

fight with us over a girl. “RN” meant “‘Right now.’” “Imma come 

to Thorne from Lawndale around 1 or 2. Imma need it by then 

cause them [guys] tryna pull up TM” meant “‘I’m going to come to 

Thorne from Lawndale around 1:00 or 2:00. I’m going to need it 

by then because them guys are trying to come tomorrow.’” “I’ll 

post wit you but I’m not givin it to you” meant “I’ll be there with 

you, but I’m not going to give it to you.’” “Imma give it back foo. 

Don’t trip. It’s just foe today.” meant don’t worry buddy, I’ll give 

it back, it’s just for today. 

At trial, defense counsel presented evidence that the gun 

used to kill Goudeau belonged to Lias, rather than Allagoa. An 

expert witness for the defense, forensic scientist Babek Malek, 

testified that by using specialized equipment he was able to 

discern that Lias was holding “an object resembling a gun” 

during the fight. 

In closing statements, the prosecutor argued that the 

Facebook posts demonstrated that Allagoa purchased a gun:

“[W]e know that once he gets the gun -- and you’ll recall a 9-

millimeter. That is significant and we have additional evidence 

that supports that that’s the gun that was used to kill Joseph 

Goudeau. We know that he doesn’t want to get rid of that gun.” 

“He’s not getting rid of his gun. He is not lending his gun. For 

whatever reason, he wants to keep that gun.” “We know five 

days before the murder, he’s got a gun.” 
54

With respect to premeditation and deliberation, the 

prosecutor argued: “But we have -- and this is important when we 

talk about deliberation. We have the defendant hanging out in 

the parking lot. Someone shows up in a van, and the second that 

driver is done transacting . . . inside the store, defendant gets in 

that van and they drive off. That is at 8:11 p.m. [¶] In the 

intervening time, [Goudeau] is still hanging out in the parking 

lot.” “[A]bout . . . 8:28, 8:29 defendant . . . walks into the parking 

lot. We’re not really sure where he comes from. . . . He left in a 

van. This is the first time he’s back on video. He walks into a 

parking lot and he immediately goes to this car. It’s like a gray 

wagon, sport wagon, something like that. And he stands at that 

car for a couple minutes. . . . There are a few reasonable 

conclusions we can draw. He leaves to get a gun. Or, possibly, 

when he’s standing at this car, he gets a gun from whoever is 

inside it. That’s less likely because, again, we know he’s got a 

gun.” “He goes around the front of this S.U.V. and he 

immediately starts flexing. And it’s almost like you can’t make 

this stuff up; right? That he’s got a gun. We know he’s about to 

get in a fight. And it’s like he’s flexing in the direction that we 

last saw [Goudeau] go. Like he is ready to challenge him now. 

And the thing that is different is that he’s got a gun now.” “And 

we get a description from Mr. Curran -- right? -- about a gun 

flopping around in the pocket of the defendant. When you watch 

the video, it is clear that there is something heavy in his front 

right pocket. That’s the gun that he is taking to the fistfight.”

Defense counsel challenged the prosecutor’s theory that 

Allagoa brought a gun to the parking lot: “[W]here is the gun in 

this case? There’s no gun registered to Mr. Allagoa.” Defense 

counsel averred that Allagoa was not the aggressor, but rather 
55

acted in self-defense. She asserted that, based on the expert 

testimony of Malek, Lias was holding a gun. 

In rebuttal, the prosecutor argued: “Now, [defense counsel] 

also said, ‘There’s nothing connecting him to a gun.’ There are 

several things connecting him to a gun: the fact that he told 

someone in Facebook that he wanted a gun; the fact that someone 

said, ‘Hey, can I borrow the strap?’ and he said ‘No, you can’t’; 

and the fact that he’s holding a gun and shoots and kills 

someone.” 

Trial Court’s Admission of the Facebook Evidence

Allagoa contends that the trial court abused its discretion 

and violated his constitutional rights under the Fifth and 

Fourteenth Amendments by improperly admitting evidence that 

he offered to bring a gun to a prior, unrelated fight in the August 

26, 2016 Facebook posts, italicized above. This contention lacks 

merit.

The trial court did not admit the Facebook evidence as 

evidence of character or for the purpose of allowing the 

prosecution to show that Allagoa planned the murder days in 

advance. The court admitted the evidence for the purpose of 

showing that five days before the murder, Allagoa possessed a 

gun of the same caliber as the bullet that killed Goudeau and 

that Allagoa was not inclined to give the gun to someone else. 

The trial court did not abuse its discretion in doing so. Evidence 

that Allagoa had a gun in his possession five days before he shot 

Goudeau to death with bullets of the same caliber was highly 

relevant to the issue of whether the gun used to kill Goudeau was 

Allagoa’s—a fact that the defense contested. (See People v. 
56

Sanchez (2019) 7 Cal.5th 14, 55 [evidence that defendant 

possessed a gun prior to the shooting was admissible because it 

“‘did not merely show that defendant was a person who possesses 

guns, but showed he possessed a gun that might have been the 

murder weapon’”].) The August 5 and 6 posts tended to show 

that Allagoa wanted to buy a gun and that a 9 millimeter gun 

was available for sale, but the only evidence confirming that 

Allagoa actually owned a firearm was contained in the August 26 

posts. 

Although there was arguably a danger of prejudice, it was 

not as great as Allagoa suggests. In the posts, Allagoa never

stated that he intended to take the gun with him to back Mickens 

up in the fight, only that he would “post,” which Manica 

explained meant that he would accompany Mickens to the fight. 

Moreover, the evidence did not demonstrate that Allagoa actually

brought a gun to the fight with Mickens—or went to the fight at 

all. Allagoa’s final post stated that the fight “[s]ound[ed] dumb.” 

The trial court properly weighed probative value against 

prejudice under Evidence Code section 352; it did not abuse its 

discretion. Moreover, the court’s ruling was an application of the 

ordinary rules of evidence and did not impinge on Allagoa’s 

constitutional rights. (Gonzales, supra, 54 Cal.4th at p. 1258.)

Defense Counsel’s Failure to Object Under Evidence 

Code Section 1101

Allagoa argues that defense counsel’s performance was 

deficient because counsel failed to object to the Facebook posts on 

the basis that they should be excluded under Evidence Code 

section 1101. This contention also fails.
57

“‘Subdivision (a) of [Evidence Code] section 1101 prohibits 

admission of evidence of a person’s character, including evidence 

of character in the form of specific instances of uncharged 

misconduct, to prove the conduct of that person on a specified 

occasion. Subdivision (b) of section 1101 clarifies, however, that 

this rule does not prohibit admission of evidence of uncharged 

misconduct when such evidence is relevant to establish some fact 

other than the person’s character or disposition.’ (People v. 

Ewoldt (1994) 7 Cal.4th 380, 393.)” (Fuiava, supra, 53 Cal.4th at 

p. 667.)

The Facebook evidence was admissible to show that Allagoa 

used his own gun to kill Goudeau. Allagoa’s use of his own gun 

tended to demonstrate that he made a conscious decision to kill 

Goudeau because making that decision (and possibly retrieving 

the gun) afforded him time for reflection prior to killing Goudeau. 

It is also evidence tending to show that Goudeau was not the 

aggressor in the fight. Evidence Code section 1101 permits use of 

the Facebook evidence to establish premeditation and 

deliberation or to rebut the theory that a defendant acted in selfdefense. (Evid. Code, § 1101, subd. (b); People v. Cage (2015) 62 

Cal.4th 256, 273.) Counsel is not ineffective for failing to object 

to the admission of properly admitted evidence. (People v. Gray

(2005) 37 Cal.4th 168, 212.) 

Moreover, the Facebook evidence was not used to show that 

Allagoa planned to kill Goudeau five days before he shot him as 

Allagoa claims, so Allagoa cannot demonstrate prejudice. The 

prosecution argued that premeditation and deliberation could be 

inferred in part from Allagoa’s choice to bring the gun to the 

parking lot on the day of the murder. From the facts that: (1) a 9 

millimeter gun was in Allagoa’s possession five days earlier, and 
58

(2) Allagoa showed a reluctance to part with the gun, it could 

reasonably be inferred that Allagoa had the gun on the day that 

Goudeau was murdered with a bullet of the same caliber, and 

that Allagoa used that gun to shoot Goudeau. The prosecutor 

theorized that Allagoa made the decision to retrieve the gun 

either when he left the parking lot in the van or when he walked 

over to the gray sport wagon. The fact that Allagoa retrieved the 

gun demonstrated that he had adequate opportunity for 

premeditation and deliberation. The prosecutor never suggested

that Allagoa intended to kill Goudeau before the day of the 

murder. Having failed to demonstrate prejudice, Allagoa has not 

shown counsel was ineffective.

VII. Cumulative Error

Allagoa contends that even if no single error warrants 

reversal, he was prejudiced by the cumulative effect of the errors 

at trial. We disagree.

“The ‘litmus test’ for cumulative error ‘is whether 

defendant received due process and a fair trial.’ [Citation.]” 

(People v. Cuccia (2002) 97 Cal.App.4th 785, 795.) Here, we 

review Allagoa’s claim of cumulative error to determine whether 

it is “reasonably probable a result more favorable to defendant 

would have been reached in the absence of the alleged errors.” 

(People v. Carrera (1989) 49 Cal.3d 291, 332 [citing the standard 

in People v. Watson (1956) 46 Cal.2d 818, 836]; see People v. 

Millwee (1998) 18 Cal.4th 96, 168 [Supreme Court rejects 

defendant’s cumulative prejudice argument, stating “[o]ur careful 

review of the record persuades us that the trial was 

fundamentally fair and its determination reliable”].)
59

The internet searches showing that Allagoa sought legal 

assistance after he committed the shooting should not have been 

admitted, but their admission and the prosecutor’s remarks 

regarding them do not undermine the fact that Allagoa received a 

fair trial and due process. Overwhelming evidence supported the 

verdict. It is not reasonably probable that the outcome would 

have been more favorable absent the alleged errors.

DISPOSITION

We affirm the trial court’s judgment.

MOOR, J.

We concur:

RUBIN, P. J. 

KIM, J.