P. v. Holbrook

Filed 10/22/07 P. v. Holbrook CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant of assault by means of force likely to produce great bodily injury. (Pen. Code,  245, subd. (a)(1).) The jury found true an allegation that defendant inflicted great bodily injury on his victim. (Id., 1192.7, subd. (c)(8), 12022.7, subd. (a); see also id.,  667, subd. (a)(4).) The assault occurred on June 12, 2005. Defendant admitted and the trial court found true an allegation that defendant had a prior conviction for which he had served a prison term within the meaning of Penal Code section 667.5, subdivision (b). The court sentenced defendant to six years in prison.

On appeal, defendant contends that the court abused its discretion in permitting the prosecution to introduce three photographs into evidence, erred in failing to instruct the jury sua sponte to disregard the photographs assertedly prejudicial content, and erred in giving an instruction on flight as showing awareness of guilt; that there was prosecutorial misconduct; and that he received ineffective assistance of counsel.

We will affirm the judgment.

FACTS

Defendant was prosecuted for assaulting Donnell Turner, leaving him bloodied and with a broken jaw that required major surgery to repair and that had to remain wired shut for five weeks. Turner also lost three teeth. He suffered a lasting impairment in his ability to eat. Defendant was intoxicated at the time, with a blood-alcohol concentration measured at 0.13 grams of alcohol per 100 milliliters of blood (see Veh. Code,  23152, subd. (b)) when police took him to the hospital for intoxication testing.

Turner testified that defendant came into his wifes apartment and began yelling at everyone. Turner stood up and defendant struck him. He [c]aught me off guard. Turner remembered few details of the assault, because it dazed him and he was badly injured. But he did not strike at or kick defendant; he never had an opportunity to defend himself. Defendants stepdaughter, who witnessed the attack, told a police officer that Turner was unable to fight back.

Turner perceived defendant as bigger and stronger than he. Turner is six feet tall and at the time of the assault weighed 150 pounds. Defendant, a high school state wrestling champion who was 42 years old at the time of trial, is five feet seven inches tall and weighs 200 to 220 pounds. Defendant maintained that he was out of condition, but on cross-examination also stated that Im very physical and Im pretty strong.

Defendant was angry at Turner for dating his wife. During the altercation, defendant called his wife a whore and a tramp. Turner admitted that he knew defendants wife was married.

Police officers testified that defendants wife, son, and stepdaughter, all of whom witnessed the fight, told them that defendant struck first. At trial, however, those three witnesses testified that they could not describe how the fight began. Defendants wife added, I dont want to remember this. Defendants son testified that he could not tell who struck first because events transpired so rapidly that [i]t was all a blur.

Other testimony established the brutality of the attack. A police officer found blood all over defendants clothing, and he had a torn T-shirt. Another officer found a pool of blood on the floor near the entryway, blood spattered on the walls, and broken furniture, glass, and picture frames on the living room floor. A neighbor, Juan Carlos Johnny Valladarez, also saw blood on the floor and wall. Defendants wife described Turner, as the fight was ending, in these terms: He looked dead. He wasnt moving and was lying in a pool of blood coming from his head. An officer saw blood coming from Turners mouth and a very swollen eye and found him unresponsive. The officer saw that Turner required medical aid; [t]here was [a] full medical response to this incident. Defendants wife, who had tried to intercede, was sufficiently injured herself that she remember[ed] falling to the ground and crawling to the front yard.

There was evidence regarding defendants awareness that he had engaged in wrongdoing. Valladarez, who had interceded in the fight, testified that defendant shot a look at me like . . . come on, lets go. Defendants wife testified that Valladarez, saying [c]ome on, lets go, announced that the police were en route, kind of grabbed defendant, and defendant left. A police officer saw defendant leaving the scene. He was walking in or toward a parking lot. Defendant did not flee at the officers approach. If not stopped by the officer, however, defendant could have departed by jumping over a fence.

The defense case featured defendants own testimony. Defendant testified that he married his wife in 2000 and thereafter she ordered him to leave the house on two occasions, the most recent in May of 2005. He had been out of the house for about three weeks when he had the fight with Turner. Defendant came to his wifes apartment to retrieve a cell phone he had left there. On entering the apartment defendant saw Turner, who refused to acknowledge his presence. Defendant said to his wife, I cant believe that youre acting like a ho.  Then defendant saw Turner coming towards me with his fists balled up and heard him cursing. They swung at each other simultaneously and fought, but except for two punches he landed on Turner, including one that was real hard, they were  rassling  during the fight at times that other witnesses perceived that defendant was punching Turner. (In a similar vein, Valladarez testified that he saw defendant and Turner wrestling when Valladarez intervened to stop the fight.) Defendant told the police officer who arrested him that he should instead arrest Turner because Turner had assaulted him. At one point Turner kicked defendant in the chest while on his hands and knees and then got up but ran straight into a wall because he was running forward while looking backward at defendant. Turner yelled in pain after colliding with the wall and defendant noticed that Turner was bleeding slightly from the nose or mouth, [m]aybe like three, four, five drops. A picture showing blood that was present in the courtroom did not accurately portray the amount of blood that was spilled during the fight. That didnt happen while I was there. It couldnt have. All that blood, I would have been soaked, my clothes. At another point Turner tried to choke defendant so he grabbed Turners hands to make him stop. Defendant tried to stop the fight but Turner wanted to continue it. The fight ended when Valladarez intervened.

A physician from the medical center of the University of California, Davis, who treated Turner testified that Turners injury could have been caused either by an assault or by a collision with a floor or wall.

DISCUSSION

I. Admission of Photographs of Defendant in Handcuffs

Defendant claims that the trial court abused its discretion in permitting the prosecution to introduce in evidence three post-incident photographs of defendants physical state because the photographs showed him in handcuffs and thus the evidence was substantially more prejudicial than probative. (Evid. Code,  352.) He also argues that the courts action violated his right to due process of law, evidently under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution, and also violated a right he discerns to a fair trial under the federal Constitutions Sixth Amendment.

Defendant raised this issue below but relied only on a theory that the photographic evidence would be unduly prejudicial and therefore its admission would violate Evidence Code section 352. By failing to invoke his Sixth Amendment claim at trial, defendant has forfeited it. (See People v. Ledesma (2006) 39 Cal.4th 641, 729 [Sixth Amendment right to jury trial claim forfeited when not timely raised at trial]; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1028, fn. 19 [same result for Sixth Amendment confrontation clause claim not timely raised at trial].) By contrast, defendants due process claim, which he raises on appeal as an additional legal consequence of the courts purportedly erroneous ruling, is not forfeited. (Lewis and Oliver, at p. 990, fn. 5; see id. at pp. 997, 1000, 1024, 1029, 1031, 1055.) In such a case, however, rejection on the merits of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional gloss as well. No separate constitutional discussion is required in such cases, and we therefore provide none. (Id. at p. 990, fn. 5.)

In ruling on the question whether evidence is substantially more prejudicial than probative, the trial court enjoyed broad discretion. (People v. Ayala (2000) 24 Cal.4th 243, 282; see Evid. Code,  352.) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (People v. Benavides (2005) 35 Cal.4th 69, 88.)

The prosecution argued that the photographs constituted the best evidence to show that, in fact, he [defendant] didnt suffer any injury about his body, which would be probative of the prosecutions theory that defendant was acting unlawfully by being the aggressor rather than responding in self-defense to an attack by Turner. The trial court agreed, finding that they are relatively probative, and that injuries or lack thereof to [defendant] would be relevant for the jury to consider. And I dont think there is a substantial danger of undue prejudice [because] the jury is going to learnand they probably have already learned . . .that [defendant] was . . . taken into custody.

There was no abuse of discretion under section 352 of the Evidence Code. We have examined the photographs and agree with the trial court. The maxim that a photograph is worth a thousand words applies fully here. The photographs were the best and most reliable evidence to show that defendant sustained no visible injuries. Had the prosecution been forced to rely solely on eyewitness observations of defendants physical state following the fight, defendant could have raised doubts about the accuracy of their recollection and their ability to perceive his physical state at the time. (Cf. People v. Roldan (2005) 35 Cal.4th 646, 713 [ [P]rosecutors, it must be remembered, are not obliged to prove their case with evidence solely from live witnesses; the jury is entitled to see details of the victims bodies to determine if the evidence supports the prosecutions theory of the case. ].) Thus the photographs were probative evidence. No one disputed the courts observation that the jury already knew or would learn through trial testimony that defendant was taken into custody after the fight, so we assume that the court was accurately reflecting the posture of the case before it. Under those circumstances, the court could reasonably conclude that the evidence was not substantially more prejudicial than probative.

II. Failing to Instruct Sua Sponte to Disregard Handcuffs in Photographs

Defendant claims that the trial court erred in failing to instruct the jury on its own motion to disregard the handcuffs visible in the post-incident photographs of defendants physical state discussed in part I, ante. He also argues that the courts action violated his right to due process of law, evidently under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15, of the California Constitution, and also violated a right he discerns to a fair trial under the federal Constitutions Sixth Amendment.

We will entertain all of defendants claims on the merits. (See In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7; cf. Pen. Code, 1259, 1469.)

Defendant relies on the bench note to CALCRIM No. 204. CALCRIM No. 204 offers this pattern language for a trial courts consideration in instructing a jury: The fact that physical restraints have been placed on [the] defendant[] . . . is not evidence. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations.

The bench note to CALCRIM No. 204 plainly contemplates that this instruction should be given when a defendant is physically restrained in the courtroom and the jurors can see the restraints. The court has a sua sponte duty to give this instruction if a defendant has been restrained in a manner that is visible to the jury. (People v. Duran (1976) 16 Cal.3d 282, 291-292.) The court must make the determination [to impose physical restraints] based on facts, not rumor, and may not delegate the decision to law enforcement personnel. [Citation.] The reasons supporting physical restraints must relate to the individual defendant. The court cannot rely on the nature of the charges, the courtroom design, or the lack of sufficient staff.

At the pages specified in the bench note to CALCRIM No. 204, People v. Duran, supra, 16 Cal.3d 282 discussed physical restraint of a defendant in the court proceedings before a jury, not other scenarios akin to the presentation of photographic evidence that a suspect was handcuffed at the time of arrest. Defendant argues, however, that the bench notes language has been restrained in a manner that is visible to the jury suggests that the court had a sua sponte duty to give the instruction. We disagree. As we have just explained, the bench note applies to in-court restraints only. There is also a fundamental problem with defendants reliance on CALCRIM No. 204, namely that neither jury instructions nor the bench notes accompanying them are the law. [J]ury instructions, whether published or not, are not themselves the law, and are not authority to establish legal propositions or precedent. They should not be cited as authority for legal principles in appellate opinions. At most, when they are accurate, . . . they restate the law. (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.)

There remains the question whether, as defendant implies, such an instruction should have been given under the circumstances of his trial to comport with principles of due process, regardless of the applicability of CALCRIM No. 204. Defendant argues that the need for a sua sponte instruction in his circumstances is greater than in the case of visible in-court restraints, because the in-court restraints do not constitute evidence whereas the photographs of him did. We find this reasoning unpersuasive. Keeping a defendant in visible physical restraints during trial constitutes a constant reminder of the accuseds condition and a likely . . . continuing influence throughout the trial that may affect a jurors judgment. (Estelle v. Williams (1976) 425 U.S. 501, 504, 505 [speaking of trying a criminal defendant in identifiable prison clothing].) Thus, a prophylactic instruction is required when a defendant is shackled throughout a trial. (People v. Duran, supra, 16 Cal.3d at pp. 291-292.) By contrast, however, even if the jury was able to view the photograph of defendant in handcuffs for extended periods during defendants trial, jurors would at most be reminded that after being summoned to the scene of a violent crime, the police thought it fitting to restrain defendant as a suspect after detaining him. The temporal distinction is significant: in the case of a post-arrest photograph, the jury sees the defendant restrained during an investigative stage at which security precautions are warranted because of incomplete information about what occurred, whereas in the case of a defendant continually restrained in the courtroom the jury is given a constant reminder (Estelle v. Williams, supra, 425 U.S. at p. 504) of the defendants current status as someone the state views as exceptionally dangerous long after the investigation is complete. The fact that the photograph was admitted into evidence is, in our view, not nearly as significant as the foregoing distinction.

Moreover, requiring a sua sponte instruction to disregard indicia of custodial status in photographs that the jury is entitled to see for unrelated purposes might redound to the detriment of defendants in some circumstances and might interfere with their constitutional or statutory trial rights. (See People v. Duran, supra, 16 Cal.3d at p. 292, fn. omitted [when the restraints are concealed from the jurys view, this instruction should not be given unless requested by defendant since it might invite initial attention to the restraints and thus create prejudice which would otherwise be avoided]; People v. Sanders (1995) 11 Cal.4th 475, 528, citing Griffin v. California (1965) 380 U.S. 609 [the United States Supreme Court [has] held that the privilege against self-incrimination of the Fifth Amendment prohibits any comment on a defendants failure to testify at trial that invites or allows the jury to infer guilt therefrom, whether in the form of an instruction by the court or a remark by the prosecution.].)

III. Instructing on Flight as Evidence of Consciousness of Guilt

Defendant claims the trial court erred by instructing the jury that it could consider his flight from the scene as evidence of consciousness of guilt. He also argues that the courts action had the additional legal consequence of violating his right to due process of law under the Fifth and Fourteenth Amendments to the federal Constitution and article I, section 15 of the California Constitution, and his right to a jury trial under the Sixth Amendment to the federal Constitution and article I, section 16 of the California Constitution.

The trial court gave the jury an instruction derived from the CALCRIM No. 372 pattern instruction. The court instructed: If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.

Defendant theorizes that giving the instruction was improper because there was no evidence that he fled or tried to flee immediately after the fight.

Penal Code section 1127c requires that whenever evidence of flight is relied on to show guilt, the court must instruct the jury that while flight is not sufficient to establish guilt, it is a fact which, if proved, the jury may consider. This statute was enacted to abolish the common law rule that the jury could not be instructed on flight unless there was evidence defendant knew he had been accused. (People v. Pensinger (1991) 52 Cal.3d 1210, 1243.) The California Supreme Court has explained that the flight instruction, as the jury would understand it, does not address the defendants specific mental state at the time of the offenses, or his guilt of a particular crime, but advises of circumstances suggesting his consciousness that he has committed some wrongdoing. (People v. Zambrano (2007) 41 Cal.4th 1082, 1160, italics omitted.) In this context, flight requires neither the physical act of running nor the reaching of a faraway haven but it does require a purpose to avoid being observed or arrested.  (People v. Jurado (2006) 38 Cal.4th 72, 126.) Nor need the suspect have resisted arrest for the instruction to be given. (People v. Carter (2005) 36 Cal.4th 1114, 1182.) A suspects decision to leave a house where a crime occurred rather than stay on the premises warrants giving an awareness of guilt instruction because [f]rom these facts, the jury could reasonably infer that defendants decision not to stay in the house, but instead to leave, manifested a consciousness of guilt. (People v. Abilez (2007) 41 Cal.4th 472, 522.) Thus, contrary to defendants urging, the evidence that he was not running when caught, did not resist arrest, and was not engaged in headlong flight is of no avail to him. The jury was entitled to consider whether defendant had a purpose to avoid being arrested by leaving the location of the fight, to which he knew the police had been summoned. Moreover, the evidence before the jury that defendant failed to personally aid or seek help for the obviously injured Turner but instead chose to leave supported giving an instruction on awareness of guilt. Jurado, supra, 38 Cal.4th 72, is instructive in this regard: Although there was a call box around 20 yards from the culvert in which Holloways body had been placed, defendant did not use the call box to summon aid . . . . Instead, defendant . . . walked a half-mile to a 7-Eleven [s]tore, along the way hiding in a tree the scissors jack that had been used to kill Holloway, before calling a friend for assistance. Defendants failure to use the call box, and the secreting of the murder weapon, support an inference that in leaving the crime scene defendant acted with a purpose to avoid observation and arrest. (Id. at p. 126.) In sum, the evidence suggested flight or an attempt to flee, albeit discreet, and not only justified but required giving the instruction to which defendant objects. (Pen. Code,  1127c.) There was no violation of state law and, returning to defendants constitutional claims, no violation of due process (see Zambrano, supra, at pp. 1159-1160) or the right to a jury trial.

IV. Prosecutorial Misconduct

Defendant claims that the prosecutor committed misconduct in cross-examining him and during closing argument.

Under federal law,  [i]mproper remarks by a prosecutor can  so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.    (People v. Carter, supra, 36 Cal.4th at p. 1204.) Under state law, a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. (Ibid.)

Misconduct that infringes upon a defendants constitutional rights mandates reversal of the conviction unless the reviewing court determines beyond a reasonable doubt that it did not affect the jurys verdict. [Citations.] A violation of state law . . . is cause for reversal [only] when it is reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the untoward comment. [Citations.] In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.] (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

A. Cross-Examination of Defendant

In cross-examining defendant, the prosecutor asked if defendant found it shocking that every single one of his family members had described him as starting the fight. Defense counsel objected that the question misstated the evidence, and the trial court sustained the objection.

The trial court later instructed the jury in the language of CALCRIM No. 222, which we quote in relevant part: Nothing that the attorneys say is evidence. . . . Their questions are not evidence. Only the witnesses answers are evidence. . . . [] During the trial, the attorneys may have objected to questions . . . . If I sustained an objection, you must ignore the question.

The prosecutor apparently meant to refer to the evidence that three members of defendants family told police officers that defendant was the aggressor. But at trial none of these family members reaffirmed the content of the statements the police testified the family members made to them; instead, they testified that they were unable to describe how the fight started. (See ante, p. 2.) Evidently the prosecutors failure to remind the jurors of the discrepancies led the trial court to sustain an objection that the prosecutor was misstating the evidence.

Nothing in the record suggests a deliberate misstatement, but there is no requirement that a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error. (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Even if there was prosecutorial misconduct, however, we find no prejudice. Assuming the prosecutors conduct [was] deceptive . . . in violation of state law, such misconduct was not prejudicial. The prosecutors improper question constituted an isolated instance in a lengthy and otherwise well-conducted trial . . . . [Citation.] . . . [T]he trial court quickly admonished the jury to disregard [the] questions . . . . Furthermore, at the conclusion of the guilt phase, the trial court instructed the jury: If an objection was sustained to a question, do not guess what the answer might have been. Do not speculate as to the reason for the objection. [] Do not assume to be true any insinuation suggested by a question asked a witness. We presume the jury followed the courts detailed instructions regarding this matter and conclude that, in light of the instructions, there is no reasonable likelihood the jury was misled by the prosecutors improper question. [Citation.] Accordingly, no prejudice is shown. (People v. Smithey (1999) 20 Cal.4th 936, 961.) Here, unlike in Smithey, the court gave no admonition immediately after the prosecutors objectionable question. The court was not asked to do so. But even more than in Smithey, the courts instruction in the case before us made clear that the jurors were to ignore the prosecutors factually imprecise question. On this record, we discern no prejudice.

Turning to defendants federal constitutional claim, we conclude that the prosecutors question did not deny him a fundamentally fair trial. As in Smithey, supra, 20 Cal.4th 936, which rejected an identical constitutional claim, [t]he prosecutors improper question constituted an isolated instance in a lengthy and otherwise well-conducted trial . . . .  (Id. at p. 961.) Posing the question did not deny him a fair trial. (See ibid.)

B. Closing Argument

Prosecutors have wide latitude to discuss and draw inferences from the evidence and information duly presented at trial.  Whether the inferences the prosecutor draws are reasonable is for the jury to decide.  (People v. Wilson (2005) 36 Cal.4th 309, 337.) This latitude is not unbounded, however. When the defendants claim on appeal focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of those remarks in an objectionable fashion. (People v. Ayala (2000) 23 Cal.4th 225, 284.)

1. Describing Testimony About Quantity of Blood at Scene

Defendant claims that the prosecutor committed misconduct when, at closing argument, he said that Valladarez testified he saw a lot of blood at the crime scene. The prosecutor also implied that Valladarez saw a pool of blood.

Defendant did not object to these remarks and has forfeited his claim on appeal. (E.g., People v. Ayala, supra, 23 Cal.4th at p. 284.)  As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant [objected] and requested that the jury be admonished to disregard the impropriety.  (People v. Prieto (2003) 30 Cal.4th 226, 259.)

Nonetheless, we will discuss defendants claim on the merits. Doing so is essential to addressing defendants related claim of ineffective assistance of counsel, which we discuss below.

The prosecutor did make a minor misstep. Valladarez testified that everybody had blood on them, and that he saw blood on the wall and the floor, but he did not specify the quantity of blood he saw. It was thus not Valladarez who testified on these matters, but rather defendants wife, who described Turner as lying in a pool of blood coming from his head. In addition, there was photographic evidence apparently showing considerable quantities of blood at the crime scene.

We cannot characterize this state of the record as showing deception. The evidence pointed to considerable blood at the crime scene. Even defense counsel acknowledged as much at closing argument. The fact that defendants wife rather than Valladarez testified about the quantity of blood is immaterial. Defendants wife was no less credible a witness than Valladarez would have been on this point. Her testimony ran against her husbands interests, but she also provided testimony suggesting a bias in favor of defendant, stating that she would love him [u]ntil the day I die, even though she would never accept him back in her house again. Accordingly, defendants state-law claim is without merit. Nor, turning to the federal Constitutions due process guaranty, did the prosecutors minor misstatement deny defendant a fair trial.

2. Claim of Prosecutorial Vouching

Defendant claims that the prosecutor improperly vouched for or opined about the credibility of witnesses.

Defendant did not object to any of the instances of what he now perceives as improper vouching or opining. Accordingly, he has forfeited these claims. Nonetheless, as in the previous subsection, we will discuss them on the merits, because, as noted there, doing so is essential to addressing defendants related claim of ineffective assistance of counsel.

The general rule is that improper vouching for the strength of the prosecutions case  involves an attempt to bolster a witness by reference to facts outside the record.  [Citation.] Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] Specifically, a prosecutors reference to his or her own experience, comparing a defendants case negatively to others the prosecutor knows about or has tried, is improper. [Citation.] Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. [Citations.] [] It is not, however, misconduct to ask the jury to believe the prosecutions version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each partys interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument . . . . (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)

Defendant argues that the prosecutor lent support to his arguments by prefacing them with I think or I believe, expressions that improperly conveyed his personal opinion on such matters as, e.g., whether a witness was telling the truth. The California Supreme Court has rejected this argument (People v. Gurule (2002) 28 Cal.4th 557, 658) and its holding is dispositive of this claim. There is no reasonable likelihood that the jury would understand the comments in the way defendant interprets them.

Defendants argument is part of a broader contention that the prosecutor made improperly negative comments about the credibility of defendants family members on the witness stand and improperly positive comments about Turner, who, the prosecutor argued, stood out as not having an an axe to grind, i.e., a reason to present biased testimony, because the unvarnished facts were compelling enough. But arguments about witnesses credibility are routinely made and are integral to many closing arguments. Such arguments are proper if made based on facts before the jury or inferences that counsel has drawn from those facts. Thus, it is misconduct to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness. [Citation.] The vice of such remarks is that they may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the governments view of the evidence. [Citation.] However, these limits do not preclude all comment regarding a witnesss credibility.   [A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.   [Citation.] [S]o long as a prosecutors assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief, her comments cannot be characterized as improper vouching.  (People v. Bonilla (2007) 41 Cal.4th 313, 336-337.) We discern no reasonable likelihood that the jury would interpret the prosecutors comments about witness credibility in an objectionable manner.

Defendant also argues that the prosecutor mischaracterized Turners actions when he argued that Turner just happened to be at the wrong place at the wrong time with the wrong woman. Defendant contends that Turner meant to be dating defendants wife and was not a chance visitor to the apartment. But we discern no reasonable likelihood that the jury, having heard the evidence, would understand the prosecutors remark in an objectionable manner. The import of the prosecutors statement was that defendants wife connived to create the confrontation between defendant and Turner, who were both unwitting victims of her scheme. The prosecutors desire was to portray Turner as morally less blameworthy than he would have been had he conspired with defendants wife to confront or embarrass defendant.^[1] There was no prosecutorial misconduct.

Next, defendant argues that the prosecutor improperly stated that defendants wifes testimony should be viewed with caution in part because she was extremely reluctant for her own personal reasons to tell you in this case what actually happened. There is a reasonable likelihood, defendant maintains in effect, that the prosecutors reference to the personal reasons of defendants wife would be understood by the jury as referring to facts outside the record, i.e., information the prosecutor had and that the jury lacked. We do not agree. In this instance, and with regard to remarks that the prosecutor made about other family members in closing argument (remarks that defendant now finds objectionable), there is no reasonable likelihood that the jury would understand the remarks to mean something other than that the in-court testimony of defendants family members had been colored by their loyalty to defendant and that the witnesses initial statements to police, made before they had a chance to reflect on the negative consequences of anything they might say, were more reliable. That is proper argument, and there was no misconduct.

C. Ineffective Assistance of Counsel

Defendant claims that counsels failure to object to any of the prosecutors remarks at closing argument that he now believes to have been improper constituted ineffective assistance of counsel.

A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694.) The Strickland standards also apply to defendants claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718.)

As we have explained, none of the prosecutors comments constituted instances of prosecutorial misconduct. Accordingly, there was no ineffective assistance of counsel. Representation does not become deficient for failing to make meritless objections. There was no [prosecutorial] misconduct, so no reason to object to the questions. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)

DISPOSITION

The judgment is affirmed.

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Duffy, J.

WE CONCUR:

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Mihara, Acting P. J.

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McAdams, J.

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People v. Holbrook

No. H030448

^[1]This is an aspect of the case that, because it does not bear on defendants criminal liability, we did not mention in our introductory recitation of the facts. Defendants wife wanted revenge because defendant was dating another woman. She learned that defendant would be likely visiting her apartment to retrieve his cell phone on June 12, 2005, and arranged for Turner to be present. Turner did not know of her scheme, and of course neither did defendant. When defendant knocked on the front door, defendants wife did not bring the cell phone to the door but invited him in so he would see Turner. The fight ensued.