Filed 11/5/20 P. v. Mixon CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

RONNIE DARNELL MIXON,

Defendant and Appellant.

 B297325

 (Los Angeles County

 Super. Ct. No. TA141142)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Laura R. Walton, Judge. Affirmed as 

modified.

Jenny M. Brandt, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Stephanie C. Brenan and 

Nathan Guttman, Deputy Attorney Generals, for Plaintiff 

and Respondent.

_____________________________________________________

INTRODUCTION

Appellant Ronnie Darnell Mixon was convicted of 

burgling the home of Delmus Eugene Wilkerson, who was 

found suffocated to death inside it. An eyewitness to 

Wilkerson’s death, Sherill Waters, testified that appellant

suffocated Wilkerson and ransacked his home. She further 

testified that appellant’s former codefendant, Timothy 

Blaxton, was present during the killing. Blaxton, testifying 

pursuant to a cooperation agreement with the People, denied 

being present for the killing but claimed he had seen

appellant enter Wilkerson’s home shortly before he was 

found dead. Waters and Blaxton were impeached on various 

grounds, including but not limited to the fact that Blaxton

was testifying in exchange for a lenient plea deal. Without 

objection, the People introduced evidence that Blaxton’s 

cooperation agreement provided that a neutral judge would 

review his truthfulness, and the People could revoke his plea 

deal if he lied. 

Appellant was acquitted of murdering and robbing 

Wilkerson, but convicted of burgling his home. The trial 

court sentenced appellant to the maximum aggregate term of 
3

11 years, including four one-year terms imposed for prior 

prison terms, and ordered him to pay $870 in various 

financial obligations. After he was sentenced, the 

Legislature enacted Senate Bill No. 136 (S.B. 136), which 

eliminated one-year enhancements for prior prison terms 

served for any offenses other than sexually violent felonies. 

(Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.)

On appeal, appellant contends: (1) no substantial 

evidence supported his burglary conviction; (2) his trial 

counsel was unconstitutionally ineffective in failing to object 

to the admission of the cooperation agreement’s terms 

concerning the prospective review of Blaxton’s truthfulness; 

(3) S.B. 136 requires that we strike his one-year 

enhancements for prior prison terms, and the striking of the 

enhancements requires that we remand for resentencing; 

and (4) the trial court violated his due process and Eighth 

Amendment rights by ordering him to pay $870 without 

determining his ability to pay; alternatively, his counsel was 

ineffective in failing to object on the ground of inability to 

pay. The People agree only that we must strike the 

enhancements.

We agree the one-year enhancements for prior prison 

terms must be stricken. We find no other error, and no need 

to remand for resentencing. Accordingly, we affirm the 

judgment as modified by the striking of the enhancements. 
4

PROCEEDINGS BELOW

A. Prosecution Case

The People charged appellant with Wilkerson’s murder 

(Pen. Code, § 187, subd. (a); count one), robbery of Wilkerson

(id., § 211; count two), and first degree burglary of

Wilkerson’s home (id., § 459; count four).1 For sentencing 

purposes, the People alleged that appellant had served eight 

prior prison terms (id., § 667.5, subd. (b)), and that appellant 

knew or reasonably should have known Wilkerson was over 

65 years old (id., § 667.9, subd. (a)).2 

1. Appellant’s DNA

Wilkerson was found dead in his Compton home (a 

shed) on August 27, 2016, around 7:00 a.m. His possessions 

were in disarray, as if the shed had been ransacked. A

plastic bag was found under Wilkerson’s head. A deputy 

medical examiner performed an autopsy and opined that the 

cause of Wilkerson’s death was suffocation. The examiner 

also found defensive wounds on Wilkerson’s left hand, which 

was bloody. 

Appellant’s DNA was found on a hair stuck to

Wilkerson’s bloody hand. Photographs of the hair and

1 The People did not proceed to trial on count three, which 

was similar to count two (robbery). 

2 The parties stipulated Wilkerson was over 65 years old 

when he died. 
5

Wilkerson’s hand were admitted into evidence. Appellant’s 

DNA was not found on the bag found under Wilkerson’s head. 

2. Waters’s Identification of Appellant

Waters testified that around 4:00 a.m. on the day of 

Wilkerson’s death, she was inside his home, using drugs 

with him. Wilkerson had previously told her that appellant 

had robbed him twice. Blaxton knocked on Wilkerson’s door 

and asked to buy drugs. When Wilkerson opened the door to 

provide the requested drugs, a masked man -- whom Waters 

later identified as appellant -- rushed inside and pushed 

Wilkerson to the ground. Appellant straddled Wilkerson’s 

back and wrapped a plastic bag around his head. Blaxton 

took some drugs from inside Wilkerson’s home and left. 

While continuing to suffocate Wilkerson, appellant said 

to Waters, “‘Bitch, I kill you, too.’” She begged him not to kill 

her. Appellant also said, “‘I’m doing this to this 

motherfucker [be]cause my baby is messed up.’” Appellant 

kept the bag wrapped around Wilkerson’s head for seven to 

10 minutes. He then stood up, no longer wearing the mask

(she did not see him remove it). Waters recognized appellant, 

whom she had known for more than 20 years. 

Appellant started ransacking the shed and asked

Waters, “‘Bitch, where the gun? Where the money?’” She 

responded that she did not know, but she found and handed 

appellant Wilkerson’s cell phone. Taking the phone and 

another small item, appellant left. 
6

Waters exited some distance behind appellant, shaking 

and crying, and saw his pregnant girlfriend China exit a 

nearby van. China approached Waters and asked what was 

wrong. Waters responded that she believed appellant had 

killed Wilkerson. Waters had seen China inside Wilkerson’s 

home once, and had seen her going to his home frequently. 

China had used drugs with Waters while pregnant. 

Waters acknowledged her memory was “[p]retty bad” 

and she was not wearing glasses, despite her poor vision, at 

the time she witnessed the attack. Further, appellant’s 

counsel impeached Waters with inconsistencies between her 

trial testimony and her earlier statements during police 

interviews and the preliminary hearing. As the People 

acknowledge on appeal, “[o]ver the course of Waters’s police 

interviews and testimony, she gave inconsistent accounts of 

how often she had seen appellant before Wilkerson’s death, 

whether she used drugs by herself before doing drugs with 

Wilkerson the night of his death, how much of the masked 

assailant’s lower face and neck were visible, whether she 

saw the masked assailant without his mask, whether the 

masked assailant told Wilkerson the attack was revenge for 

the baby being ‘messed up’, whether the masked assailant 

wrapped the bag around Wilkerson’s head for seven to ten 

versus 30 to 45 minutes, whether the masked assailant 

ransacked the shed for 45 minutes versus 90 to 120 minutes, 

and whether she told China that appellant killed 

Wilkerson.” 
7

3. Blaxton’s Proffer and Cooperation 

Agreements

The People initially included Blaxton as appellant’s 

codefendant on the charges of murder, robbery, and burglary. 

In January 2018, the People and Blaxton entered into a 

proffer agreement. The People agreed to refrain from using 

Blaxton’s statements during the proffer session in its casein-chief against him, in exchange for Blaxton’s promise to 

respond “truthfully and completely” to all questions during 

the session. In March 2018, after the proffer session, the 

People and Blaxton entered into a cooperation agreement. 

Blaxton promised to “testify truthfully and completely” 

throughout the proceedings in exchange for the People’s 

agreement to a plea deal, under which Blaxton would plead 

guilty to robbery and be sentenced to eight years in prison. 

The cooperation agreement provided, “The issue of whether 

or not Timothy Blaxton has in fact testified truthfully and 

completely will be decided by a neutral magistrate.” It 

further provided that if Blaxton failed to testify truthfully, 

the People would have the right to declare the agreement 

void and proceed to trial against Blaxton on all charges. 

During opening statements, the prosecutor 

summarized Blaxton’s anticipated testimony. Appellant’s 

counsel then challenged Blaxton’s credibility on the ground 

that he would be testifying in exchange for a lenient plea 

deal. Counsel informed the jury that “in order to get this 

deal,” Blaxton had “[m]iracuously” provided details to the 
8

prosecution that he had claimed not to know or remember in 

an earlier police interview. 

On direct examination, Blaxton confirmed he had 

entered the proffer and cooperation agreements, which were 

admitted into evidence. The prosecutor elicited testimony 

about the cooperation agreement’s terms as follows: 

“Q. And in this document, it tells you that 

for your truthful testimony, you will plead to one 

count of residential robbery and you will get eight 

years in state prison?

“A. Yes.

“Q. As part of your agreement as stated in 

this document, you were required to tell the 

truth?

“A. Yes. 

“Q. Also stated in this document is that if 

you don’t tell the truth, you could end up with 

charges against you?

“A. Yes.

“Q. It also states in this document that the 

truthfulness of your statements is not decided on 

by the District Attorney’s Office, but by a neutral 

judge; is that right?

“A. Yes.” 
9

4. Blaxton’s Identification of Appellant

Blaxton testified that around 4:30 on the morning of 

Wilkerson’s death, he visited Wilkerson’s home to buy drugs. 

He saw appellant using drugs outside. Wilkerson allowed 

Blaxton inside, where Waters was present too, and they 

completed the transaction. When Blaxton exited the shed, 

appellant suddenly entered. Looking back inside the shed, 

Blaxton could no longer see Wilkerson or Waters; it was as if 

they had “vanished.” He immediately left the scene. 

Blaxton further testified that appellant had robbed 

Wilkerson on a prior occasion, during which Blaxton had 

seen appellant punch Wilkerson in the head.3 On 

cross-examination, he admitted that during his proffer 

session, a detective asked him whether he had been present 

during this prior robbery, and he said no. He explained that 

he “didn’t give a damn” about the detective’s questions 

during the proffer session because he resented the detective

for interrogating him earlier. He initially claimed his

promise to tell the truth did not apply to the detective’s 

questions, before admitting it did. 

3 A detective testified that during an interrogation the day 

after Wilkerson’s death, Blaxton reported seeing, on a visit to 

Wilkerson’s home around the time of his death, a man who had 

previously robbed Wilkerson. Though he did not then identify 

that man, he told the detective he believed appellant was 

responsible for Wilkerson’s death. 
10

B. Defense Case

Appellant called only one witness, his longtime friend 

Murray Wallace. Wallace, who was confined to a wheelchair,

testified he was living in the back unit of appellant’s home 

on the morning of Wilkerson’s death. He claimed he saw 

appellant cooking breakfast in the front unit’s kitchen 

sometime between 3:00 and 5:00 that morning. 

On cross-examination, Wallace testified that 

appellant’s grandson had delivered Wallace’s breakfast to 

him in the back unit, from which Wallace was unable to see

the front unit, and in which he had remained until 10:00 a.m. 

Wallace acknowledged he had long known of appellant’s 

arrest, but when asked if he had ever contacted the police to 

tell them he had seen appellant at home around the time of 

the charged offenses, Wallace responded, “I was [a]sleep.” 

C. Jury Instructions and Closing Arguments

The court instructed the jurors (per CALCRIM No. 

200), “It is up to all of you, and you alone, to decide what 

happened, based only on the evidence that has been 

presented to you in this trial.” The court further instructed 

the jurors (per CALCRIM No. 226), “You alone must judge 

the credibility or believability of the witnesses.” The court 

identified various factors for the jury to consider in 

evaluating a witness’s credibility, including whether the 

witness had been “promised immunity or leniency in 

exchange for his or her testimony[.]” The court delivered no 
11

instruction on aiding and abetting, or any other theory of 

vicarious liability. 

In closing, the prosecutor argued that appellant 

committed burglary by entering Wilkerson’s home with the 

intent to murder and rob him, and that appellant did, in fact, 

murder and rob Wilkerson. She summarized the physical 

evidence, including the presence of appellant’s hair on 

Wilkerson’s bloody hand, and Waters’s testimony. She 

reminded the jury that Blaxton, beginning the day after the 

killing, had indicated appellant was present at Wilkerson’s 

home. She argued, “[H]is version of what happened is pretty 

consistent with Ms. Waters’s testimony, except for one 

glaring thing, of course. He did not say he took the victim’s 

drugs.” Characterizing Blaxton as an “opportunist,” she 

argued Blaxton had taken advantage of appellant’s attack on 

Wilkerson to steal drugs. 

Appellant’s counsel conceded Wallace’s alibi testimony 

was weak, but argued the prosecution had nevertheless 

failed to prove beyond a reasonable doubt that appellant was

present at Wilkerson’s home at the time of the charged 

offenses. He argued Waters was not credible for various 

reasons, including the absence of evidence of appellant’s 

DNA on the bag he allegedly used to suffocate Wilkerson. 

He argued Blaxton was not credible because he had been 

offered a “huge discount” on his sentence in exchange for his 

testimony, leading him to “say anything and everything to 

make it happen.” He argued Blaxton had violated his 

promise to tell the truth by lying that he had seen appellant
12

rob Wilkerson on a prior occasion (as evidenced by the 

detective’s testimony that during the proffer session, Blaxton

had denied being present on that occasion). 

In rebuttal, the prosecutor again acknowledged that 

although Blaxton had denied taking anything from 

Wilkerson, he “[p]robably took something. After all, he pled 

to a robbery and took eight years.” She argued Blaxton was 

nevertheless credible on other matters because he had 

admitted being present at the scene of the killing, and he 

had not fabricated details to conform his account to Waters’s. 

She argued Blaxton and Waters corroborated each other 

regarding appellant’s presence in Wilkerson’s home. 

D. Verdicts and New Trial Motion

The jury acquitted appellant of murder and robbery, 

but convicted him of first degree burglary. It found true the 

allegation that appellant knew or reasonably should have 

known that Wilkerson, the victim of the burglary, was over 

65 years old. 

Appellant filed a motion for a new trial pursuant to 

Penal Code section 1181. He argued the evidence of 

burglary was insufficient because the only person who 

placed him at the scene was Blaxton, whose testimony was 

neither credible nor corroborated by other evidence. In a 

written opposition to the motion, the People argued the 

burglary conviction was supported not only by Blaxton’s 

testimony, but also by the DNA evidence and Waters’s 

testimony. 
13

After hearing oral argument from both parties, the 

court tentatively denied the new trial motion and invited 

appellant’s counsel to respond. Appellant’s counsel argued 

that if appellant had suffocated Wilkerson with a plastic bag 

as Waters claimed, appellant’s DNA would have been found 

on the bag. The court responded, “And I agree with you on 

that point, [counsel]. I believe that is why the jurors did not 

convict him of the murder because his DNA was not found on 

the plastic bag because of the different inconsistent 

statements that Mr. Blaxton gave. [¶] I think the jurors 

struggled with who actually murdered the victim, whether it 

was [appellant] or whether it was Mr. Blaxton. [¶] And so 

since you’re asking me to sit as the thirteenth juror, I come 

to that same determination. . . . [¶] . . . I have no doubt that 

[appellant] was present. And I have no doubt, based on Mr. 

Blaxton’s statements, as the People have indicated from the 

very beginning, putting [appellant] there. [¶] . . . [¶] . . . We 

do have the other witness, Ms. Waters, who testified and 

ultimately stated that it was [appellant] there. [¶] . . . [¶] 

Look at the coroner’s photographs. The hair was intertwined 

with the victim’s fingers and the victim’s fingers were bloody. 

[¶] . . . [That] indicates to me, as well as I think it indicated 

to the jurors, that he was there, that he participated in the 

burglary. At some point he participated maybe even in a 

struggle with the victim. [¶] They just couldn’t determine as 

to whether or not he was the one who actually killed the 

victim or if it was Mr. Blaxton who actually killed the victim 

on this incident. [¶] So I have, basically, the same view as 
14

the thirteenth juror in analyzing and assessing the evidence 

as they did. And I think that they came to the correct 

verdict in this case. [¶] So your motion for a new trial is 

denied.” 

E. Sentencing

At appellant’s April 2019 sentencing hearing, he

admitted four of the eight prior prison terms the People had 

alleged. The People requested the maximum sentence of 11 

years, comprising the upper term of six years for the 

burglary conviction, a one-year enhancement for the 

elder-victim finding, and four one-year enhancements for the 

admitted prior prison terms. Appellant requested a 

three-year sentence, relying in part on the nonviolent nature 

of his admittedly “lengthy” criminal history. He also relied

on the following assertedly mitigating factors: (1) a history 

of family trauma and drug abuse; (2) familial connections, 

evidenced by letters of support attached to his sentencing 

memorandum; and (3) a history of steady employment 

(interrupted only by periods of incarceration), including 

nearly 10 years as a cook and more than 10 years as an 

in-home care provider. 

The court sentenced appellant to the maximum term of 

11 years, as requested by the People. It explained its 

decision to impose the upper term on the burglary conviction 

as follows: “The reason for that, that although the jurors --

and we’ll never know, actually, who murdered the victim in 

this case, Mr. Wilkerson. [¶] But the jurors determined that 
15

you were present during the time that Mr. Wilkerson was 

murdered during the time the residential burglary was 

committed. [¶] We have an individual who lost his life 

during that time. The court is aware that there was a 

co-defendant that took an earlier plea and testified in this 

case. [¶] And I believe that based on all the evidence, and 

the incredible job that your attorney did during the trial, is 

that the jurors could not figure out who actually was 

responsible between you and Mr. Blaxton for the actual 

murder of Mr. Wilkerson in this case.” 

The court ordered appellant to pay $870, comprising a 

$500 victim restitution order, a $300 restitution fine, a $30 

criminal conviction fee, and a $40 court security fee. 

Appellant did not object on the ground of inability to pay. 

He timely appealed. 

DISCUSSION

Appellant contends: (1) no substantial evidence 

supported his burglary conviction; (2) his trial counsel was 

unconstitutionally ineffective in failing to object to the 

admission of the cooperation agreement’s terms concerning 

the prospective review of Blaxton’s truthfulness; (3) S.B. 136 

requires that we strike his one-year enhancements for prior 

prison terms, and the striking of the enhancements requires 

that we remand for resentencing; and (4) the trial court 

violated his due process and Eighth Amendment rights by 

ordering him to pay $870 without determining his ability to 
16

pay, or his counsel was ineffective in failing to object on the 

ground of inability to pay. 

A. Sufficiency of the Evidence of Burglary

There was substantial evidence that appellant

committed burglary by entering Wilkerson’s home with the 

intent to commit murder or robbery. (See Pen. Code, § 459

[burglary requires entry into dwelling or other specified 

structure with intent to commit larceny or any felony]; 

People v. Davis (2013) 57 Cal.4th 353, 357 [“‘In reviewing a 

sufficiency of evidence challenge, we view the evidence in the 

light most favorable to the verdict and determine whether 

any rational trier of fact could have found the essential 

elements of the crime proven beyond a reasonable doubt’”].) 

As the trial court found in denying appellant’s motion for a 

new trial, the following evidence supported reasonable 

inferences that appellant was present during Wilkerson’s

killing and participated in a struggle with him: (1) Waters 

testified that appellant barged into the shed when Blaxton 

duped Wilkerson into opening the door; (2) beginning the 

day after the killing, Blaxton indicated appellant was 

present at the scene; and (3) appellant’s DNA was found on a 

hair intertwined with Wilkerson’s bloody fingers. Moreover, 

Blaxton testified that appellant had robbed Wilkerson on a 

prior occasion, and Waters testified that both appellant and 

Blaxton took property from Wilkerson’s shed, and that after 

the attack appellant demanded “‘Where[’s] the money?’” 

Finally, evidence that appellant told Waters he was 
17

attacking Wilkerson because his baby was “‘messed up,’” 

along with evidence that his pregnant girlfriend had 

obtained drugs from Wilkerson, suggested appellant 

harbored animosity toward Wilkerson for his role in a 

drug-induced problem with his girlfriend’s pregnancy. The 

jury reasonably could have inferred from this evidence that 

appellant entered with the intent to murder or rob

Wilkerson.

Appellant argues we must review the sufficiency of the 

evidence of burglary “in the light most favorable to an 

acquittal of robbery and murder . . . .” Not so. The verdict 

on the burglary count -- and our review of the evidence 

underlying it -- is independent of the verdicts on the other 

counts. (See People v. Lewis (2001) 25 Cal.4th 610, 656

(Lewis) [“‘Sufficiency-of-the-evidence review . . . should be 

independent of the jury’s determination that evidence on 

another count was insufficient’”]; People v. Pahl (1991) 226 

Cal.App.3d 1651, 1657 (Pahl) [“each count must stand on its 

own, and a verdict on one has no bearing on any other”].) As 

noted, there was substantial evidence appellant committed 

burglary.

Contrary to appellant’s alternative suggestion, there is 

no inconsistency between a burglary conviction based on the

substantial evidence he intended to murder or rob Wilkerson 

and his acquittal on the murder and robbery charges. The 

jury reasonably might have found he and Blaxton each 

entered with the intent to murder or rob Wilkerson (thereby 

committing burglary), but there was a reasonable doubt 
18

regarding which man personally murdered or robbed him. 

Such doubt would have compelled the jury to acquit 

appellant on the murder and robbery charges, as the jury 

had not been instructed on any theory of vicarious liability. 

Further, in light of appellant’s challenges to Waters’s 

credibility, and the absence of evidence that Wilkerson’s 

property was found in appellant’s possession, the jury 

reasonably might have found a reasonable doubt whether 

appellant completed the intended robbery.

In any event, even assuming arguendo that the jury 

convicted appellant of burglary on a factual theory

inconsistent with the acquittals on the murder and robbery 

counts, that inconsistency does not entitle appellant to relief. 

(See, e.g., People v. Bell (2020) 48 Cal.App.5th 1, 9-10, 14-15

[affirming murder conviction on basis of substantial evidence 

that defendant fatally drove van over victim, notwithstanding inconsistency between conviction on that basis and 

defendant’s acquittal on charge of hit and run causing 

death]; Lewis, supra, 25 Cal.4th at 654-656 [even assuming 

not-true finding on allegation of great bodily injury in course 

of robbery was inconsistent with true findings on allegations 

of such injury in course of burglary and attempted murder, 

inconsistency did not warrant reversal].) In re Johnston

(1935) 3 Cal.2d 32, a conspiracy case on which appellant 

relies, established an exception to the general rule that 

inconsistent verdicts do not entitle a defendant to relief on 

appeal. (See id. at 36.) That exception, however, applies 

“only where, as in Johnston, an overt act alleged in a 
19

conspiracy charge is identical to another charged offense of 

which defendant is acquitted.” (Pahl, supra, 226 Cal.App.3d

at 1658; cf. Lewis, supra, at 656 [citing Pahl with approval 

regarding general rule allowing inconsistent verdicts]; 

People v. Palmer (2001) 24 Cal.4th 856, 861 [same]; People v. 

Santamaria (1994) 8 Cal.4th 903, 911 [same]; 6 Witkin, Cal. 

Criminal Law (4th ed. 2020) § 87 [discussing Johnston

exception as a “[s]pecial” rule regarding conspiracy cases].) 

Appellant identifies no nonconspiracy case applying the 

exception. 

B. Counsel’s Failure to Object to Asserted

Vouching

Appellant contends his trial counsel was 

unconstitutionally ineffective in failing to object, on the 

ground of improper vouching, to the admission of evidence 

that Blaxton’s cooperation agreement provided that (1) a 

neutral judge would determine whether Blaxton testified

truthfully, and (2) the prosecution could revoke Blaxton’s

lenient plea deal if he did not.4

4 Appellant concedes the admissibility of all other terms of 

the cooperation agreement, including Blaxton’s promise to testify 

truthfully. Further, he implicitly concedes his trial counsel’s 

failure to raise a vouching objection forfeited a contention of 

prosecutorial misconduct on appeal. (See, e.g., People v. Flores

(2020) 9 Cal.5th 371, 403.) Though he is silent on the subject, his 

counsel’s failure to object on this ground also forfeited a 

contention of evidentiary error. (See, e.g., People v. Redd (2010) 

48 Cal.4th 691, 729.) 
20

1. Principles

“‘Improper vouching occurs when the prosecutor either 

(1) suggests that evidence not available to the jury supports 

the [prosecutor’s] argument, or (2) invokes his or her 

personal prestige or depth of experience, or the prestige or 

reputation of the office, in support of the argument.’” (People 

v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez); see also 

id. at 483 [implying reliance on prestige of other government 

agents is likewise improper].) “[A]s [several California 

Supreme Court decisions] all demonstrate . . . it is not

misconduct for the prosecutor to address the obvious 

credibility issue that will necessarily arise when an 

accomplice or similarly involved witness testifies in 

exchange for a plea agreement by eliciting the term of the 

agreement requiring the witness to testify to the truth 

rather than in favor of one side or the other. That is not 

‘vouching’ in the sense of placing the prestige of the 

government behind the witness; rather, it is fairly informing 

the jury of the nature and limitations of the inducement 

offered. That a jury may infer the prosecutor believes the 

witness is testifying truthfully does not mean there has been 

misconduct. There is misconduct only if the prosecutor’s 

questions or arguments suggest his or her belief in the 

witness’s veracity is based on information to which the jury 

is not privy or otherwise encourage the jury to rely on the 

prosecutor’s belief rather than assessing the witness’s 
21

credibility for itself.” (People v. Price (2017) 8 Cal.App.5th 

409, 464 (Price).)

“To make out a claim that counsel rendered 

constitutionally ineffective assistance, ‘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.’ [Citation.] To make 

out an ineffective assistance claim on the basis of the trial 

record, the defendant must show ‘(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.’” (People v. Hoyt (2020) 8 

Cal.5th 892, 958.) 

2. Analysis

No impermissible vouching occurred. The prosecutor 

merely moved the cooperation agreement into evidence, and 

elicited testimony from Blaxton confirming the existence of 

the challenged terms. Neither the prosecutor, Blaxton, nor 

the agreement itself implied that Blaxton’s truthfulness had 

been reviewed or guaranteed. Thus, appellant 

misrepresents the evidence in arguing it conveyed an 

impression that Blaxton’s truthfulness “had been vetted.” 

While the agreement provided for a judge’s prospective
22

review of Blaxton’s truthfulness, no evidence suggested the 

judge would find him truthful. Indeed, in closing argument,

the prosecutor -- far from personally vouching for Blaxton --

argued that part of his testimony had been false. 

Specifically, she argued that Blaxton had taken advantage of 

appellant’s assault on Wilkerson to steal Wilkerson’s drugs 

(as suggested by his guilty plea to robbery), contradicting his 

testimony that he had left as soon as appellant attacked. 

Thus, the jury was not invited to credit Blaxton’s testimony 

in reliance on information outside the record or the prestige 

of the prosecution or judiciary. Under our Supreme Court’s 

precedent, appellant’s counsel had no ground to raise a 

vouching objection. (See Rodriguez, supra, 9 Cal.5th at 480, 

483; Price, supra, 8 Cal.App.5th at 459, 465.) Accordingly, 

counsel’s failure to raise a meritless vouching objection was 

a reasonable tactical decision.5

5 The same is true under United States v. Wallace (9th Cir. 

1988) 848 F.2d 1464 and the related Ninth Circuit precedent on 

which appellant relies. Appellant maintains the challenged 

terms impermissibly vouched for Blaxton under this precedent 

because they were introduced “before the witness’s credibility 

[was] attacked.” The premise is false; Blaxton’s credibility was 

attacked during opening statements, when appellant’s counsel 

informed the jury that Blaxton had agreed to testify in exchange 

for a lenient sentence. In similar circumstances, the Ninth 

Circuit found no impermissible vouching. (See U.S. v. Dorsey

(9th Cir. 2012) 677 F.3d 944, 953-954 [“Defense counsel implied 

in his opening statement that [defendant] was a liar and that he 

was biased because he got ‘a deal from the government.’ The 

prosecutor permissibly responded to this attack by eliciting 

(Fn. is continued on the next page.)
23

In any event, even were we to assume the challenged 

terms would have been excluded had counsel objected, the

record shows no prejudice from the failure to object. The 

jury had ample reason to discredit Blaxton’s testimony, 

notwithstanding a neutral judge’s prospective review of his 

truthfulness. Blaxton himself acknowledged giving little 

weight to his promises to tell the truth, and the prosecutor 

questioned his veracity in closing argument. Appellant’s 

counsel similarly challenged Blaxton’s credibility, arguing 

that he would say anything to obtain the benefit of his 

lenient plea deal. The jury was instructed that it “alone” 

must evaluate Blaxton’s credibility, based on the evidence 

presented at trial and specified factors, including the factor 

that he was promised leniency in exchange for his testimony.

“We presume the jurors understood and followed the court’s 

instruction.” (People v. Frederickson (2020) 8 Cal.5th 963, 

1024.) The presumption is bolstered by evidence that the 

jury rejected Blaxton’s testimony in whole or in part, viz., its 

acquittal of appellant on the murder charge despite

Blaxton’s implicit identification of appellant as the murderer. 

We find no reasonable probability that exclusion of the 

challenged terms would have led the jury to further discredit 

Blaxton’s testimony in a manner affecting the verdict. In 

sum, no impermissible vouching occurred, and appellant’s 

testimony that [defendant]’s plea agreement required him to tell 

the truth. When the defense opens a door, it should not be 

surprised to see the prosecutor enter”]; accord, U.S. v. Adebimpe

(9th Cir. 2016) 649 Fed.Appx. 449, 454-455.)
24

counsel was not ineffective in failing to raise a meritless

vouching objection. 

C. Fines, Fees, and Victim Restitution

Appellant contends the trial court violated his due 

process and Eighth Amendment rights by ordering him to 

pay $500 in victim restitution and $370 in fines and fees 

without first determining his ability to pay; alternatively, he 

contends his trial counsel was unconstitutionally ineffective 

in failing to object on the ground of inability to pay. He 

relies on People v. Dueñas (2019) 30 Cal.App.5th 1157, which 

concerned fines and fees, and argues we should extend that 

case’s conclusions to victim restitution.

Appellant forfeited his Dueñas contention by failing to 

object in the trial court on the ground of inability to pay. 

(See, e.g., People v. Torres (2020) 47 Cal.App.5th 984, 991.) 

We note Dueñas was decided three months before appellant’s 

April 2019 sentencing hearing.

Appellant’s ineffective assistance claim fails because 

the record does not negate the possibility his counsel had

rational tactical reasons for failing to object. (See People v. 

Hoyt, supra, 8 Cal.5th at 958.) Counsel reasonably might 

have concluded that Dueñas did not support an objection to 

victim restitution, as courts have since held. (See People v. 

Evans (2019) 39 Cal.App.5th 771, 777 [“Based on the 

significant differences in purpose and effect between victim 

restitution and the moneys at issue in Dueñas, we decline to 

extend the rule of Dueñas to victim restitution”]; accord, 
25

People v. Allen (2019) 41 Cal.App.5th 312, 326.) Moreover, 

in mitigation, appellant’s counsel argued that appellant had 

maintained steady employment -- including nearly 10 years

as a cook and more than a decade as an in-home caregiver --

since he was 18 years old, interrupted only by periods of 

incarceration. In light of appellant’s employment history 

and its potential to mitigate his sentence, his counsel 

reasonably might have deemed an objection based on 

inability to pay $370 in fines and fees futile, or even 

counterproductive.

D. Appropriate Disposition Under S.B. 136

As the parties agree, appellant’s four one-year 

enhancements for prior prison terms must be stricken under 

S.B. 136, as none of his prior prison terms were served for 

sexually violent felonies. (See Stats. 2019, ch. 590, § 1, eff. 

Jan. 1, 2020.) The parties disagree whether we should 

affirm the judgment as modified by the striking of the 

enhancements, or remand for resentencing. Appellant 

contends we must remand because he “might be able to 

present mitigating evidence at a resentencing hearing based 

on his [post-sentencing] conduct in prison.” He identifies no 

such evidence. 

We find remand for resentencing unnecessary because 

the trial court imposed the maximum possible sentence. 

(See People v. Gastelum (2020) 45 Cal.App.5th 757, 772-773; 

People v. Winn (2020) 44 Cal.App.5th 859, 872-873; People v. 
26

Lopez (2019) 42 Cal.App.5th 337, 341-342.)6 Had the court

exercised leniency on any component of the sentence,

remand might be warranted to afford the court an 

opportunity to adjust that component upward, for the 

purpose of maintaining the original aggregate sentence or 

achieving its closest possible approximation. (See People v. 

Hill (1986) 185 Cal.App.3d 831, 834 [at resentencing, trial 

court is entitled to rethink entire sentence “to achieve its 

original and presumably unchanged goal”].) But the court 

exercised no leniency; it imposed the upper term on 

appellant’s conviction, alongside the stricken enhancements 

and the remaining elder-victim enhancement. We will

achieve the court’s presumably unchanged goal of imposing 

the maximum sentence by striking the enhancements for 

prior prison terms and affirming the judgment as so

modified. 

We are unaware of any authority supporting 

appellant’s position that he is entitled to resentencing based 

on mere speculation that he “might” present mitigating 

evidence of his post-sentencing conduct. Though appellant 

cites cases supporting the proposition that such evidence is 

6 In People v. Chubbuck (2019) 43 Cal.App.5th 1, on which 

appellant relies, the Court of Appeal did not discuss whether

remand under S.B. 136 was necessary in light of the original 

sentence (which appeared to be the maximum). (People v. 

Chubbuck, supra, at 3-4, 13-14.) “‘“[C]ases are not authority for 

propositions not considered.”’” (B.B. v. County of Los 

Angeles (2020) 10 Cal.5th 1, 11.)
27

entitled to consideration if a defendant is resentenced, those 

cases do not address an entitlement to resentencing in the 

first instance. (See Pepper v. United States (2011) 562 U.S. 

476, 481; People v. Bullock (1994) 26 Cal.App.4th 985, 990; 

People v. Tatlis (1991) 230 Cal.App.3d 1266, 1273-1274; 

People v. Warren (1986) 179 Cal.App.3d 676, 687; People v. 

Foley (1985) 170 Cal.App.3d 1039, 1047-1049.) Moreover, 

appellant’s cases suggest that remand for consideration of 

such evidence is unwarranted where it would be futile. (Cf.

People v. Bullock, supra, at 989-990 [evidence of postsentencing conduct may be compelling reason to order new 

probation report at resentencing even where defendant is 

ineligible for probation, but “in many cases obtaining a new 

report will be a meaningless exercise,” and trial court has 

discretion not to order one]; People v. Tatlis, supra, at 1274-

1275 [trial court’s error in failing to obtain new probation 

report for resentencing was prejudicial, where defendant’s 

concurrently filed habeas petition identified evidence of 

post-sentencing rehabilitation of “sufficient substance . . . to 

create a reasonable probability [it would] affect the 

sentencing calculus favorably”]; People v. Foley, supra, at 

1049-1050 [same, where trial court deemed defendant’s postsentencing testimony in separate case mitigating, but 

declined to rely on it because Department of Corrections 

should have administratively reduced sentence, and new 

report might reveal Department had failed to do so].) 

Here, the record suggests remand would be futile. In 

his sentencing memorandum and attached letters of support, 
28

appellant presented assertedly mitigating evidence of his 

employment (between prior periods of incarceration), 

familial connections, and personal history of family trauma 

and drug abuse. The court nevertheless imposed the upper 

term, relying on the nature of the trial evidence and verdicts. 

Neither the record nor appellant’s speculation that he 

“might” present new personal information establishes any 

reasonable probability the court would reduce his sentence 

on remand. Thus, even under the authority cited by 

appellant, remand for resentencing is unwarranted. 
29

DISPOSITION

The four one-year sentence enhancements under Penal 

Code section 667.5 are stricken. The judgment is affirmed as 

modified by the striking of the enhancements. The trial 

court shall issue an amended abstract of judgment and 

forward it to the California Department of Corrections and 

Rehabilitation. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 MANELLA, P. J.

We concur:

WILLHITE, J.

CURREY, J.