Filed 10/22/18 P. v. Perez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge.

Thomas W. Casa, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Hugo Miguel Perez stands convicted of violating Penal Code[1] section 460, subdivision (a), first degree burglary. Perez contends his conviction should be reversed because of multiple instances of prosecutorial misconduct. He contends the cumulative errors of the prosecutor denied him a fair trial. To the extent defense counsel failed to object to prosecutorial misconduct, Perez contends he received ineffective assistance of counsel. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On April 13, 2016, an information was filed in Kern County charging Perez and Michael Anthony Muniga with first degree burglary (§ 460, subd. (a)). Muniga also was charged with other offenses. Muniga is not a party to this appeal.

Perez’s jury trial commenced on August 1, 2016. Savina Garcia testified she and her boyfriend live in an apartment on Lincoln Street in Bakersfield. Garcia and her boyfriend left the apartment the morning of November 2, 2015, before 11:00 a.m., and returned around 3:00 p.m. They closed and locked the front door before leaving. When they returned, they found the front door open and Garcia’s bedroom had been ransacked. Several items were missing from the apartment including checkbooks, a cellular phone, pillowcases, a Paris Hilton handbag, and a black bag with a BMW logo.

Garcia contacted a neighbor, John Knight, who had a video surveillance system. The portion of the video covering the time frame when Garcia was absent from the apartment showed two males carrying her pillowcases, the Paris Hilton handbag, and the BMW logo bag. She did not recognize either of the men and did not give anyone permission to enter her apartment. One man, wearing a blue shirt, was carrying one of her bags. The other man, wearing a white shirt, was carrying one of her pillowcases and the Paris Hilton bag.

Knight lived behind Garcia, on the other side of an alley. He checked his surveillance footage for the time interval after Garcia left the apartment to when she returned. He downloaded the relevant portion of the video and gave a copy to Garcia. Knight authenticated a copy of the video at trial, testifying that it was an accurate depiction of the original surveillance video showing events on November 2, 2015, commencing at 12:45 p.m. The video tape was viewed by the jury.

Detective Keegan Gavin, then with the Bakersfield Police Department’s burglary unit, was assigned to the case. He viewed the video and made still photographs of frames of the video. One photograph depicted a Hispanic male wearing a blue shirt, black shorts, and gray shoes, who Gavin identified as Perez. Another photograph depicted a Hispanic male with short black hair wearing black shorts and carrying two bags in his right hand. Gavin also made still photographs of the vehicle in the video. The vehicle was an early 1990’s white Honda Accord, with black rims, a sunroof, and after-market lights. Perez was the driver of the Honda.

Gavin emailed photographs of the two Hispanic males and the vehicles to patrol officers in the police department. On November 21, 2015, Gavin was notified that a vehicle had been stopped that matched the description in the photograph; the two individuals in the vehicle appeared to match the photographs of the Hispanic males. Gavin immediately went to the scene of the vehicle stop. It appeared to him that the vehicle and individuals were those depicted in the photographs.

Garcia later identified some of her property that was recovered from Muniga.

The defense did not call any witnesses or present any evidence.

The jury returned a verdict of guilty on August 3, 2016. At the August 31, 2016 sentencing hearing, the trial court denied probation and imposed the lower term of two years in prison for the offense.

DISCUSSION

Perez contends the prosecutor committed error under Griffin v. California (1965) 380 U.S. 609 (Griffin). He also contends the prosecutor committed misconduct by misstating the law on reasonable doubt and presumption of innocence. In addition, Perez claims the prosecutor misstated the law on aiding and abetting and gave unsworn testimony. To the extent each instance of misconduct is not itself prejudicial, Perez claims cumulative error requires reversal. Finally, Perez contends that counsel rendered ineffective assistance by failing to object to most of the challenged comments by the prosecutor.

Because Perez raises ineffective assistance of counsel for failure to object to several instances of alleged prosecutorial misconduct, we address the merits of Perez’s claim of prosecutorial misconduct.

1. Claim of Prosecutorial Misconduct

“ ‘As a general rule 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.’ ” (People v. Nunez and Satele (2013) 57 Cal.4th 1, 31.) “A claim will not be deemed forfeited due to the failure to object and to request an admonition only when ‘an objection would have been futile or an admonition ineffective.’ ” (People v. Thomas (2012) 54 Cal.4th 908, 937.)

“When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that ‘ “[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom” ’ [citation], and that the prosecutor ‘may “vigorously argue his case.” ’ ” (People v. Welch (1999) 20 Cal.4th 701, 752-753.) “When a claim of misconduct is based on the prosecutor’s comments before the jury, … ‘ “the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” ’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) In reviewing the prosecutor’s comments, “we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one.” (People v. Howard (1992) 1 Cal.4th 1132, 1192.)

No Griffin Error

Standard of Review

In Griffin, “the United States Supreme Court held that the prosecution may not comment upon a defendant’s failure to testify in his or her own behalf. Its holding does not, however, extend to bar prosecution comments based upon the state of the evidence or upon the failure of the defense to introduce material evidence or to call anticipated witnesses. [Citations.] Nonetheless, … [the California Supreme Court has] held that a prosecutor may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand.” (People v. Bradford (1997) 15 Cal.4th 1229, 1339 (Bradford).)

“We evaluate claims of Griffin error by inquiring whether there is ‘a reasonable likelihood that any of the [prosecutor’s] comments could have been understood, within its context, to refer to defendant’s failure to testify.’ ” (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1523; see People v. Clair (1992) 2 Cal.4th 629, 663.) As with any claim a prosecutor’s comments constituted misconduct, we “ ‘do not lightly infer’ ” the prosecutor “intended his [or her] remarks ‘to have their most damaging meaning, or that the jury would draw that meaning from the other, less damaging interpretations available.’ ” (People v. Young (2005) 34 Cal.4th 1149, 1192 (Young).)

If the defendant fails to object to Griffin error or seek an admonition, the error is waived. (People v. Turner (2004) 34 Cal.4th 406, 420.)

Background

Perez contends the remarks by the prosecutor constituted Griffin error. In his opening statement, defense counsel stated that Muniga asked Perez to give him a ride to a friend’s house. Defense counsel then goes on to state:

“Perez gives [Muniga] the ride. They both get out of the car. [Muniga] was the one who enters the apartment unbeknownst to [] Perez. Unbeknownst to [] Perez, [Muniga] goes, takes items and comes back out to the car. And then [] Perez leaves with [Muniga] and drops [Muniga] off.

“Now, the evidence will show that [] Perez never entered the apartment, that none of the stolen property was ever found with [] Perez.”

In closing argument, the prosecutor stated:

“So the very first thing I want to address is what I’m going to refer to as the story. And when I say the story, I’m talking about the story [defense counsel] brought up and gave to you in his opening.…

“But to be abundantly clear, the defendant has an absolute constitutional right not to testify. So none of this is saying that he needed to get up and testify. But the Defense did give a story in their opening statement if you recall that.”

At this point, defense counsel objected under “Griffin Doyle.” The trial court overruled the objection. The prosecutor then went on to state that defense counsel had argued, “you’re going to hear that my client didn’t know basically, you know, that it was [] Muniga who went in, and he didn’t know what was going on.”

The trial court asked for a bench conference, saying “I want to be clear about this.” At the bench conference, the prosecutor explained there was no evidence presented that supported defense counsel’s “story” about what Perez was doing at the apartment that day. The prosecutor stated she intended to tell the jury it was not allowed to consider as evidence the “story” offered by defense counsel. The trial court overruled defense counsel’s objection.[2]

The prosecutor then continued with her argument:

“So if you recall in [defense counsel’s] opening there was a very specific—and I’m just referring to it as a story that he gave. It is very important to note that there was no evidence to back this story. So you cannot and must not consider what [defense counsel] said in his opening as evidence. So—and I can’t directly quote him, because I don’t remember direct quotes. But he said something along the lines of [] Perez asked [] Muniga to drive him to a friend’s house. So we never heard that in evidence. There was no evidence of that. So if someone back in jury deliberations says well, you know, didn’t [] Muniga ask [] Perez to drive them, it is your duty to say no, stop, there is no evidence of that. That at this point is pure speculation. That was—there is no evidence.”

Analysis

Applying the foregoing standards, we conclude the prosecutor did not commit Griffin error by any of these remarks. Her comments clearly were directed to the fact that defense counsel made representations in his opening statement that were not supported by the evidence, and she took care to remind the jury that Perez was under no obligation to testify. (See, e.g., People v. Thomas, supra, 54 Cal.4th at p. 945 [“ ‘[n]ot one person came forward’ to say defendant ‘couldn’t have done it, he was with me’ ” not Griffin error; the prosecutor’s comments were framed in terms of failure to call someone other than the defendant who would testify defendant was with him or her]; People v. Castaneda (2011) 51 Cal.4th 1292, 1333 [the prosecutor’s review of evidence, followed by comment it was not contradicted by any other evidence, was not comment on the defendant’s failure to testify]; People v. Brady (2010) 50 Cal.4th 547, 565-566 [the prosecutor did not commit Griffin error by arguing the defendant “ ‘did not appear to refute the issue of identity,’ ” then noting that other than questioning the witnesses presented, there was no evidence presented to suggest someone other than the defendant committed crime; if the defendant had evidence relevant to identity of victim’s killer, the defendant could have presented it in numerous ways without testifying]; People v. Taylor (2010) 48 Cal.4th 574, 633-634 [no Griffin error where the prosecutor asked who took witness stand and gave reasonable explanation concerning the defendant’s presence at victim’s home; in context, the prosecutor’s query was proper comment on evidence against the defendant, not implicit suggestion defendant should or could have provided nonfelonious reason for entry into victim’s home]; People v. Cornwell (2005) 37 Cal.4th 50, 90-91 [the prosecutor’s comments that defense did not produce evidence to explain why car the defendant had borrowed was parked near scene of homicide at or near time of crime, constituted proper comment on failure of the defense to call witnesses who might logically explain vehicle’s presence], disapproved on another ground in People v. Doolin (2008) 45 Cal.4th 390, 421, fn. 22 (Doolin); Bradford, supra, 15 Cal.4th at pp. 1339-1340 [no Griffin error where the prosecutor’s comments amounted to notation of absence of evidence contradicting that produced by prosecution and failure of the defense to introduce material evidence or alibi witnesses; the prosecutor did not allude to lack of refutation or denial by sole remaining witness (the defendant), but rather to lack of evidence, which could have been presented in form of testimony from someone other than the defendant]; People v. Medina (1995) 11 Cal.4th 694, 755-756 [the prosecutor argued several times that defense counsel failed to explain certain evidence; in context, remarks were fair comment on state of evidence].)

The prosecutor reminded the jury Perez had no obligation to testify, repeatedly referred to the comments of defense counsel in her opening statement, and reminded the jury they could not consider defense counsel’s comments as evidence. When the prosecutor’s remarks are considered in context, there is no reasonable likelihood they could have been understood as referring to Perez’s failure to testify. The cases on which Perez relies do not persuade us otherwise, because the challenged remarks were considerably different and/or the reviewing court did not assess the comments under the “reasonable likelihood” standard that now applies. (See, e.g., People v. Vargas (1973) 9 Cal.3d 470, 476-477 [it was “possible” prosecutor only intended to comment on state of evidence, but remarks were “sufficiently ambiguous” to lead to conclusion Griffin error occurred]; People v. Medina (1974) 41 Cal.App.3d 438, 463 [Griffin error because the jury was asked to believe the testimony of three accomplice witnesses was true because defendants should have refuted their testimony if not true].) Griffin error does not extend to comments on the state of the evidence. (People v. Brady, supra, 50 Cal.4th at pp. 565‑566.)

Moreover, even if the prosecutor’s remarks could be viewed as having violated Griffin, most indirect Griffin error is harmless. (People v. Vargas, supra, 9 Cal.3d at pp. 478-481.) Any indirect Griffin error here was harmless. The jury was instructed with CALCRIM No. 222, stating that the comments of the attorneys were not evidence, and CALCRIM No. 300, stating that neither side is required to call all witnesses. The prosecutor told the jury that Perez had a constitutional right to not testify. In addition, the trial court instructed the jury with CALCRIM No. 355, which states:

“A defendant has an absolute right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”

We presume the jury understood and correctly applied these instructions. (People v. Holt (1997) 15 Cal.4th 619, 677.)

Burden of Proof, Reasonable Doubt, Presumption of Innocence

Perez contends the prosecutor misstated the law by equating a reasonable conclusion with the beyond a reasonable doubt standard and that this misstatement also affected the presumption of innocence by shifting the burden to Perez. Our reading of the comments reveals that there was no misstatement of the reasonable doubt or presumption of innocence standards.

Background

In her rebuttal argument, the prosecutor directed the jury’s attention to CALCRIM No. 224, circumstantial evidence. The prosecutor then stated:

“And it’s talking about circumstantial evidence. And if—you know, [defense counsel] read that if you draw two or more reasonable conclusions from the circumstantial evidence, okay. And if one of those reasonable conclusions points to innocence, you must vote not guilty. Completely true.

“What he left out there was, however, when considering circumstantial evidence you must accept only reasonable conclusions and reject any that are unreasonable. Reasonable doubt is not a blanket or a shield that allows you to just say you don’t have this whole thing on video, it’s possible that, you know, while [] Muniga went to burglarize a house I was actually at the neighbors’ selling ice cream. Okay. It is not a shield to give any possibility because we don’t have the whole thing on video.

“This instruction I think is a wonderful, wonderful, definition of what reasonable doubt is.”

As given to the jury, CALCRIM No. 224 stated:

“Before you rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt.

“Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”

Analysis

Perez failed to assert any objections to these remarks in the trial court. Because Perez also asserts defense counsel rendered ineffective assistance by failing to object to prosecutorial misconduct, we address the merits.

“A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comments on the state of the evidence or on the defense’s failure to call logical witnesses, introduce material evidence, or rebut the People’s case are generally permissible. [Citation.] However, a prosecutor may not suggest that ‘a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.’ ” (People v. Woods (2006) 146 Cal.App.4th 106, 112; accord, e.g., Young, supra, 34 Cal.4th at pp. 1195-1196; Bradford, supra, 15 Cal.4th at p. 1339.)

Examining the challenged comments in context, we find no misconduct: “[T]he prosecutor did not cross the critical line, as there is no reasonable likelihood the jurors would have understood the prosecutor’s argument as imposing any burden on” Perez. (Young, supra, 34 Cal.4th at p. 1196.) The point the prosecutor was making with her remarks is the same point made by CALCRIM No. 220, the instruction on reasonable doubt. CALCRIM No. 220 provides in part that, “The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” Under the circumstances, it would have been logical for the prosecutor to point out that the video did not capture the entire crime, but that the People were not required to produce video evidence to support every element of their case. The prosecutor’s comments did not misstate the law or impermissibly shift the burden of proof to the defense. (See, e.g., People v. Chatman (2006) 38 Cal.4th 344, 406-407; Bradford, supra, 15 Cal.4th at pp. 1339, 1340; cf. People v. Hill (1998) 17 Cal.4th 800, 831-832; People v. Woods, supra, 146 Cal.App.4th at pp. 112, 113-114.)

In arguing that the prosecutor committed misconduct with her remarks, Perez relies heavily upon People v. Centeno (2014) 60 Cal.4th 659. Centeno, however, is readily distinguishable. In Centeno, the prosecutor used a visual aid that was unrelated to the facts of the case in a flawed attempt to illustrate the process of proving guilt beyond a reasonable doubt. (Id. at p. 670.) The California Supreme Court stated, “What occurred here was not the legitimate marshalling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question.” (Id. at p. 671.) Here, the prosecutor used no visual aids, but she did relate the evidence to the legal concepts explained in the jury instructions, which is permissible. (Ibid.)

In any event, assuming misconduct, it was not prejudicial. It was one brief remark; did not involve the use of deceptive methods to persuade the jury; the jurors were instructed that nothing the attorneys said was evidence; and the jury was instructed with CALCRIM No. 220, the reasonable doubt instruction, which clearly states the defendant is presumed innocent and the People have the burden of proving their case beyond a reasonable doubt. We are convinced that any possible misconduct arising from this one remark did not affect the jury’s verdict. (People v. Covarrubias (2016) 1 Cal.5th 838, 893-894.)

Aiding and Abetting/Unsworn Testimony

Perez contends the prosecutor misstated the law on aiding and abetting because “[n]ever once did the prosecutor say that [] Perez had to form the intent to aid and abet prior to Muniga leaving the structure.” In this portion of his argument on appeal, Perez also claims the prosecutor gave “unsworn testimony” when she stated:

“So just some things I would like to point out to you because the evidence kind of did go fast. I’ve had a lot of time to digest this. You have not. I don’t know if anyone noticed but in the surveillance video the defendant, [] Perez, actually walks toward the house first. And I think that’s extremely important to know. And I just want to play that for you guys again.”

Perez contends this remark is unsworn testimony and prosecutorial misconduct. Again, Perez raised no objection to either of these remarks in the trial court.

We summarily address and dispense with Perez’s contention that the prosecutor misstated the law on aiding and abetting because she never stated that Perez had to form the intent to aid and abet Muniga before he left the structure. The record does not support this contention. The prosecutor stated in her argument that in order to find Perez guilty on an aiding and abetting theory, “before or during the commission of the crime the defendant … intended to aid and abet the perpetrator in committing the crime.”

In addition, we note that the jury was instructed with CALCRIM No. 222, which states in part, “Nothing that the attorneys say is evidence.” The jury also was instructed with CALCRIM No. 401, defining aiding and abetting and specifying when the defendant had to have formed the intent to aid the perpetrator to be liable as an aider and abettor.

As for the claim of unsworn testimony, if the prosecutor referred to facts not in evidence, it turns the prosecutor into her own witness, not subject to cross-examination, and constitutes misconduct. (People v. Hill, supra, 17 Cal.4th at p. 832.) Perez challenges as unsworn testimony the prosecutor’s comment that he walked toward Garcia’s residence first, asserting no one testified to this. Perez correctly notes that no person testified to this point. Considering the comments in context, however, the prosecutor’s remarks are more properly viewed as commenting on and drawing reasonable inferences from the evidence, including the videotape admitted into evidence. (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales).)

A videotape was authenticated, admitted into evidence, and viewed by the jury. The videotape was surveillance of the alley behind the apartment complex and depicted the back of the complex and portions of the alley.

In viewing the videotape, People’s exhibit 1, we note it shows the vehicle entering the alley and passing behind the apartment complex before it stops. The car is shown as it stops and parks; the passenger is the man in the white shirt, identified at trial as Muniga. The driver gets out and walks to the trunk and opens it; the driver is wearing a blue shirt and was identified at trial as Perez.[3] Perez then closes the trunk and walks in the direction of the apartment building, followed by Muniga; they disappear from view. The video does not show either man entering the apartment complex premises or Garcia’s apartment. The video then shows Perez returning from the same direction in which he left; Muniga is with him. Both men are holding items taken from Garcia’s apartment. Perez walks to the driver’s side of the vehicle while Muniga walks to the passenger side; the car pulls away. In testimony at trial, Garcia testifies the two men in the video are carrying items taken from her apartment.

“At closing argument a party is entitled to both discuss the evidence and to comment on reasonable inferences that may be drawn therefrom.” (Morales, supra, 25 Cal.4th at p. 44.) Although no person testified to everything captured on the video, and no person testified that Perez headed toward the Garcia residence first, the remarks of the prosecutor are a reasonable inference of what the evidence shows. The videotape is evidence and a reasonable inference to be drawn from that video is that it shows Perez walking in the direction of Garcia’s residence first, followed by Muniga. Nothing of which we are aware limits the prosecutor to commenting only on testimony given at trial; the prosecutor is permitted to comment on and draw inferences from all the evidence. (Ibid.)

We do not view the prosecutor’s comments regarding the content of the surveillance video as testifying to facts not in evidence or unsworn testimony. Considering the comments in context, they are more properly viewed as commenting on and drawing reasonable inferences from the evidence. (Morales, supra, 25 Cal.4th at p. 44.)

2. Cumulative Error

Perez contends that even if none of the alleged prosecutorial misconduct is individually harmful and prejudicial, the cumulative effect is prejudicial. “Under the cumulative error doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial.” (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) A claim of cumulative error is essentially a due process claim. (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) The test is whether the defendant received a fair trial. (Ibid.)

Perez has not challenged the adequacy of instructions to the jury. The jury’s instructions addressed his right not to testify, reasonable doubt, the prosecution’s burden of proof, aiding and abetting, what constitutes evidence and that comments of the attorneys are not evidence. Essentially all the points raised by Perez as prosecutorial misconduct because of remarks made by the prosecutor were addressed in the jury instructions. The Supreme Court held in People v. Sanchez (1995) 12 Cal.4th 1, 70, disapproved on another point in Doolin, supra, 45 Cal.4th at p. 421, fn. 22: “[W]e presume the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.”

Taking all of Perez’s claims of prosecutorial misconduct into account, we are satisfied he received a fair trial. (See People v. Cunningham (2001) 25 Cal.4th 926, 1001 [a criminal defendant is entitled to a fair trial, but not a perfect one].) After assessing each individual claim of prosecutorial misconduct, we have concluded the claim lacks merit or any possible misconduct was harmless. Therefore, we reject Perez’s cumulative prejudice argument. (Bradford, supra, 14 Cal.4th at p. 1057.)

3. No Ineffective Assistance of Counsel

Perez contends counsel rendered ineffective assistance because he failed to object in the trial court to multiple instances of prosecutorial misconduct. “The burden of proving ineffective assistance of counsel is on the defendant.” (People v. Babbitt (1988) 45 Cal.3d 660, 707.) To meet this burden, “ ‘a defendant must show both that his counsel’s performance was deficient when measured against the standard of a reasonably competent attorney and that counsel’s deficient performance resulted in prejudice to defendant ....’ ” (People v. Lewis (2001) 25 Cal.4th 610, 674.) Prejudice is shown when there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Since the failure of either prong of an ineffective assistance of counsel claim is fatal to establishing the claim, we need not address both prongs if we conclude appellant cannot prevail on one of them. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” (Strickland v. Washington (1984) 466 U.S. 668, 697.)

Our analysis of Perez’s claims of prosecutorial misconduct are that the prosecutor’s remarks did not constitute misconduct; and in the case of alleged Griffin error were objected to and if error, were harmless. We conclude, therefore, that Perez has failed to show either deficit performance or prejudice.

DISPOSITION

The judgment is affirmed.