Filed 5/22/17 P. v. Bulandr CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
IAN ANTHONY BULANDR,
Defendant and Appellant.

A145716

(Del Norte County
Super. Ct. No. CRPB15-5019)


A jury convicted defendant Ian Anthony Bulandr under Penal Code section 4502, subdivision (b) for attempt to manufacture a weapon while in custody in state prison. On appeal, Bulandr contends (1) there was insufficient evidence to support the verdict, (2) his counsel was ineffective, and (3) the prosecutor committed misconduct. We disagree and affirm.
FACTUAL BACKGROUND
Kitchen workers in Pelican Bay State Prison’s (Pelican Bay) Security Housing Unit go through a security screening after each shift. Upon leaving the kitchen, they strip naked, their clothes and bodies are searched, and they pass through a metal detector. After they dress, an officer checks their posterior and rectum areas and the soles of their shoes with a handheld metal detector. The process is designed to ensure no inmates leave the kitchen with metal.
On June 4, 2014, Bulandr, a Pelican Bay inmate, worked in the Security Housing Unit kitchen and made his way through the security check following his shift. When Correctional Officer Shane Parr checked Bulandr’s rectum with the handheld metal detector, the device sounded. He confirmed the detection with a second handheld metal detector. Bulandr was handcuffed and taken to a holding cell.
Following further investigation, Bulandr was charged with attempt to manufacture a weapon in violation of Section 4502, subdivision (b) and faced a jury trial.
At trial, Officer Parr testified that Bulandr, while detained in the holding cell, asked him what was going to happen. Officer Parr told Bulandr the kitchen was being searched for missing metal. Bulandr told Officer Parr the metal came from a kitchen push cart that was used to move supplies around the kitchen. Officers located a kitchen cart with missing metal. Bulandr never told Officer Parr his plans for the metal, nor did he ever refer to the metal as a weapon in his discussions with Officer Parr.
When at trial Officer Parr saw the metal Bulandr took, he noted it was not the metal he usually dealt with or saw on a day-to-day basis. However, he had seen such metal made into weapons and acknowledged that with its “sharp ends . . . it would be considered a weapon.” In a comparison to razor blades, Officer Parr noted razor blades were “so much smaller” than the metal taken by Bulandr.
Officer Parr further testified that the metal Bulandr took was not the type typically used to make “stingers”—makeshift tools commonly used by inmates to heat food or beverages. Describing stingers as two-pronged devices attached to wires and then connected to an electrical source, Officer Parr commented that the metal taken by Bulandr did not appear to be malleable or bendable as would metal typically attached to a stinger. He further added that inmates typically purchased the metal for stingers, since aluminum was readily available from soda cans sold in the prison canteen.
Correctional Officer David DiFranco was working the contraband surveillance watch the morning after Bulandr was detained. His job was to watch Bulandr and record everything he did. Officer DiFranco testified, “At 6:30 [a.m.] [Bulandr] stated that he had to defecate and that he had a weapon.” The prosecution focused Officer DiFranco on Bulandr’s statement: “Q: . . . [Y]ou said he said he had a weapon? [¶] A: Yes. [¶] Q: He didn’t say, ‘I have metal?’ [¶] A: No. To the best of my knowledge, I thought he said ‘weapon.’ ”
Bulandr was then taken to a room containing a fluoroscope machine officers used to scan contraband. He was given a clean bucket and bag for his waste. When Bulandr finished relieving himself, Officer DiFranco ran the bag through the fluoroscope and initially observed, “[I]t looked like it was a solid piece of metal stock on the screen.” Officer DiFranco removed the item from the bag for further inspection. He described a bindle about 4 inches long and an inch in diameter wrapped in a latex glove. Upon removing the glove, he found a bundle of plastic wrap. When he removed the plastic wrap, he was left with pieces of wet cardboard which concealed three small pieces of rusted metal.
Officer DiFranco testified the metal pieces could be used as a weapon, or they could be made into a “prettier . . . less primitive weapon.” The metal could be sharpened or a handle could be attached. Officer DiFranco further testified that given the amount of metal involved, he “assumed it was going to be used as a weapon for the way it was concealed” and did not “see it being used for anything else.” He recognized that metals for stingers could vary, but the metal Bulandr took was not the type used for a stinger, and in his nearly five years of work he had never seen a stinger made out of that type of metal. He also added that metal typically used for stingers was readily available and there would be no need to steal it from the kitchen.
On cross-examination, Officer DiFranco was pressed on whether Bulandr told him he had a “weapon” when he said he had to defecate. Referencing Officer DiFranco’s testimony that he had assumed the metal was going to be used as a weapon, Bulandr’s counsel asked, “Are you sure that your assumption couldn’t be confused with whether he actually used the word ‘weapon’?” DiFranco responded, “No. To the best of my knowledge, I thought he said ‘weapon.’ I wrote the report about a half-hour after I discovered it.” Officer DiFranco also acknowledged that stingers were used to make both “pruno” and “white lightning”—inmate-manufactured alcohol.
Jacqueline Hernandez, a court liaison officer assigned to the investigative services unit at Pelican Bay, testified for the prosecution about stingers as well as pruno and white lightning. In her 17 years working at Pelican Bay, Officer Hernandez estimated she had confiscated “fifty or more” stingers. During her six years of doing cell searches, she found one or two stingers in each cell she searched. She testified, “I haven’t ever seen a stinger with the type of metal that was defecated by the defendant. I haven’t seen that metal made as a stinger.” She noted the metal Bulandr took was “much harder” and “a lot sturdier” than the type of soft, bendable metal she had seen typically used, which could come from a number of items inmates had access to such as compact disc players, televisions, or even beard trimmers. She had never seen the quantity of metal taken by Bulandr used on a stinger. Based on her training and experience, she disagreed with the notion that the metal Bulandr took would be used for stingers, noting “[i]t wouldn’t be something that an inmate . . . would go to the lengths that [Bulandr] did to stick that item in his rectal cavity and hide it and conceal it when those items are there on the [prison] yard all the time.”
Officer Hernandez further testified that each of the three metal pieces taken by Bulandr could be fashioned into a separate weapon. She normally saw handles attached to such pieces, and they would be sharpened to a point that could inflict great injury to a victim. Even in their primitive condition, Officer Hernandez asserted the metal pieces could still be used as a weapon, noting “[e]ven though there’s not a really sharp point on it, with enough force, yeah, you could cause injury.”
On cross-examination, Officer Hernandez demonstrated her familiarity with how inmates make pruno and white lightning. She identified fruit and a yeast product such as bread or rotten fruit as the basic ingredients for pruno. She described white lightning as pruno heated up and then distilled; the condensation from heating the pruno resulted in white lightning. She compared pruno to beer and white lightning to moonshine or vodka. Since the only difference between the two alcohols was the distillation process, Officer Hernandez saw no difference between stingers used to make pruno and those used to make white lightning.
Bulandr testified in his defense. He explained that during his kitchen shift, he saw loose pieces of metal hanging from the bottom of a kitchen cart, and thought he could use them for a stinger to help him make pruno or white lightning.
On the day he was detained, Bulandr maintained he said that he had “metal” when Officer Parr asked him after the handheld metal detector sounded. He denied ever telling Officer DiFranco he had a weapon. He emphasized that after Officer DiFranco asked him if he was going to find anything after his request to defecate, he stated, “I told him, ‘Yeah. I have metal on me.’ ”
When asked directly if he took the metal to make a weapon, Bulandr testified, “No. I have no write-ups for inmate violence or nothing while I’ve been in the institution.” He repeated that he did not take the metal to make a weapon. Bulandr stated, “I was making lightening. That’s it.” He explained that he was trying to make a bigger stinger with more wires and thicker metal. He thought greater current would flow through the thicker metal to more quickly finish the brewing process with less chance of detection. “[Y]ou can’t be making wine when [officers are] walking by your cell. Your cell is pretty clear. . . . So you have to [make] it pretty fast. You have to make it within an hour at least,” he explained. Bulandr thought a stinger from the metal he took would be superior to the common, smaller stingers most inmates used to heat up coffee and soup because it would allow for increased alcohol production. He described himself as a regular pruno maker, having had “many write-ups for manufacturing alcohol” at Pelican Bay and other prisons. “That’s what I do,” he said, referring to pruno making.
The jury convicted Bulandr, finding him guilty of attempted manufacture of a weapon in a state prison in violation of Section 4502, subdivision (b). He appealed.
DISCUSSION
A. Sufficiency of the Evidence
Bulandr first contends the evidence was insufficient to support his conviction of attempted weapon manufacturing. We disagree.
“ ‘In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]’ ” (People v. Golde (2008) 163 Cal.App.4th 101, 108.) “We do not resolve credibility issues or evidentiary conflicts. Instead, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Aznavoleh (2012) 210 Cal.App.4th 1181, 1186.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Here, the jury convicted Bulandr for attempting to violate Section 4502, subdivision (b), which provides: “Every person who, while at or confined in any penal institution . . . manufactures or attempts to manufacture any instrument or weapon of the kind commonly known as . . . any dirk or dagger or sharp instrument, . . . is guilty of a felony and shall be punished by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months, or two or three years, to be served consecutively.”
Because Bulandr was charged with an attempt under Section 4502, subdivision (b), as with any attempt, the prosecution had to prove Bulandr (1) specifically intended to carry out the crime, and (2) committed a “ ‘direct but ineffectual act done toward its commission.’ ” (People v. Chandler (2014) 60 Cal.4th 508, 516.) While Bulandr acknowledges the record “clearly indicates [he] knowingly possessed contraband metal in violation of prison rules,” he contends there was inadequate evidence supporting both of these traditional elements of attempt. Sufficient evidence supported the jury’s finding.
The first element—specific intent—“may be, and usually must be, inferred from circumstantial evidence.” (People v. Cole (1985) 165 Cal.App.3d 41, 48.) There is substantial circumstantial evidence of Bulandr’s intent. Officer DiFranco testified that Bulandr told him he had a weapon when he told Officer DiFranco he needed to defecate. Officer DiFranco reiterated this testimony when asked for clarification, and again when challenged during cross-examination. Moreover, all three Pelican Bay officers testified the metal taken by Bulandr could be transformed from its primitive condition into a more sophisticated weapon by attaching a handle or sharpening the edges. Officer Parr said he had seen such metal made into weapons. Officer DiFranco testified the metal could be sharpened and a handle attached to make less primitive weapons. Officer Hernandez stated she normally saw handles attached to the metal Bulandr took and that such pieces would be sharpened to a point where they could inflict great bodily injury upon a victim. In addition, all of the officers testified that suitable metal to manufacture stingers was readily available elsewhere in the prison. Accordingly, Officer DiFranco saw no need to steal metal from the kitchen, and Officer Hernandez observed that inmates would not usually conceal stinger materials in their rectums. On the basis of this evidence, a juror could reasonably find Bulandr specifically intended to attempt to manufacture a weapon.
There was also sufficient evidence of a direct but ineffectual act toward commission of the crime. The jury was presented evidence of Pelican Bay’s security protocols designed to prevent kitchen workers from smuggling metal. Bulandr endeavored to bypass these security measures. Moreover, the record shows Bulandr took several steps to get the metal out of the kitchen. He removed loose metal pieces from a kitchen cart, wrapped them in wet cardboard, then plastic wrap, and then a latex glove. He inserted a four-inch long bindle into his rectum in an attempt to clear security. On the basis of this evidence, a juror could reasonably find Bulandr committed multiple direct acts to further his attempt to manufacture a weapon. None of Bulandr’s arguments compel a contrary result.
First, based on his own denials of any such intent, his testimony that he intended to use the metal for a harmless stinger to make alcohol, and his view that Officer DiFranco was uncertain Bulandr said “weapon,” Bulandr contends the jury’s finding was unsupported by the evidence. However, this contrary evidence does not compel reversal. Jurors are free to disbelieve some or all of a defendant’s version of events in favor of other conflicting evidence. (People v. Silva (2001) 25 Cal.4th 345, 369.) Further, under the substantial evidence standard of review, “an appellate court may not substitute its judgment or that of the jury. If the circumstances reasonably justify the jury’s findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The jury rejected Bulandr’s defense, and we are bound to accept its decision because there is substantial evidence to support his conviction.
Second, Bulandr disputes there was sufficient evidence to prove he acted to further the charged crime. He says even if he possessed contraband metal, there was no evidence he took steps beyond possession to make the metal into a dirk, dagger, or sharp instrument. He compares himself to a person who would not be guilty of attempted murder if he bought a gun, planned a shooting, and then decided not to use it. The People do not bother to address this argument and for good reason. Absent support, Bulandr’s argument insists we ignore his illicit acquisition of contraband metal and begin our analysis at the point of possession. No. Bulandr pulled metal pieces from a kitchen cart; wrapped them in wet cardboard, plastic wrap, and a latex glove, inserted an approximately 4-inch bindle into his rectum; and then attempted to clear security. Bulandr’s argument that this conduct “fails to rise to a level beyond preparation and planning” to establish guilt of an attempt does not pass muster. Further, unlike an individual whose gun purchase may not be unlawful, Bulandr was a prison inmate whose acquisition of metal violated prison rules, as Bulandr himself acknowledges. All his acts went well beyond preparation and planning and placed a plan into motion. We will not conclude the evidence was insufficient simply because Bulandr’s plan was foiled before additional potentially harmful steps could have been taken.
Third, Bulandr argues the metal he took was not a “prohibited weapon described in section 4502.” This is not persuasive. To be sure, the word “metal” is not enumerated in section 4502, subdivision (b). (See Pen. Code, § 4502, subd. (b).) That provision, however, does prohibit the manufacture of “any dirk or dagger or sharp instrument.” (Pen. Code, § 4502, subd. (b).) Office Parr compared the metal Bulandr swiped to razor blades. Officer DiFranco observed the metal could be sharpened. Officer Hernandez normally saw such metal pieces sharpened to a point where they could inflict great bodily injury upon a victim. Based on this testimony, the jury could have reasonably found the metal Bulandr took could have been made into a “sharp instrument.”
Finally, Bulandr contends that where, as here, there is circumstantial evidence from which jurors could draw two or more conclusions with one pointing to innocence and one pointing to guilt, the jury has to accept the conclusion pointing to innocence. While Bulandr properly recites this common rule of jury instruction, it “is not the rule for the guidance of the court on review.” (People v. Williams (1951) 101 Cal.App.2d 624, 629.) The rule “ ‘ “does no more than to instruct the jury that, if a reasonable doubt is created in their minds for any reason, they must acquit the defendant. But, where the jury rejects the hypothesis pointing to innocence by its verdict, and there is evidence to support the implied finding of guilt as the more reasonable of the two hypotheses, this court is bound by the finding of the jury.” ’ ” (Ibid.; see People v. Kraft (2000) 23 Cal.4th 978, 1053–1054.) Here, Bulandr’s conviction indicated the jurors did not draw two or more reasonable conclusions from the evidence, but were instead convinced of Bulandr’s guilt beyond a reasonable doubt. Since we have already concluded sufficient evidence supported the jury’s finding, we are bound by the jury’s decision even if we could reconcile the evidence with a different result.
B. Ineffective Assistance of Counsel
Next, Bulandr contends his trial counsel was ineffective for (1) stipulating to Bulandr’s shackling at trial; and (2) failing to present Bulandr’s past prison discipline records for possessing alcohol as evidence to corroborate Bulandr’s testimony he intended to make pruno or white lightning, not a weapon. Even if counsel’s conduct fell below the standard of care, the errors were not prejudicial.
To establish ineffective assistance of counsel, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness” and that “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington (1984) 466 U.S. 668, 686, 688 (Strickland).) “In determining whether counsel’s performance was deficient, a court must in general exercise deferential scrutiny [citation] . . . . ‘[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ ” (People v. Brodit (1998) 61 Cal.App.4th 1312, 1334.)
In addition, a defendant must also establish counsel’s performance prejudiced his defense. (Strickland, supra, 466 U.S. at p. 687.) To establish prejudice, a defendant must demonstrate “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.” (Id. at p. 694.) Courts may reject an ineffective counsel claim if it finds counsels’ performance was reasonable or the claimed error was not prejudicial.
The first error Bulandr claims his counsel made was his stipulation to the shackling motion the prosecution filed prior to trial. Among other reasons, that motion argued Bulandr should be shackled during the course of trial based on his gang involvement history, violence he exhibited at the time of his commitment offense, and assaultive behavior on behalf of a prison gang. The court described Bulandr’s opposition as “very spotty” and “the same thing [he] files in every case,” criticizing it for “not address[ing] any facts in the motion, kind of a waste of time.” Ultimately, Bulandr’s counsel stipulated with the prosecution that Bulandr would attend trial in “basically full shackles except for a long chain on his writing hand to assist in his defense.” Pursuant to the stipulation, the trial court ordered the shackling with an arm extension to allow Bulandr to write more freely. At trial, Bulandr was shackled in a manner his attorney approved.
We recognize a defendant is not to be restrained during proceedings unless a manifest need is shown. (People v. Duran (1976) 16 Cal.3d 282, 290–291.) However, even if his trial counsel erroneously entered the stipulation or failed to forcefully oppose the shackling motion, Bulandr has not persuaded us that a different outcome would have resulted. As we have already discussed, substantial evidence supported Bulandr’s guilt based on the testimony of three Pelican Bay officers, including one with 17 years’ experience (Officer Hernandez). The risk of prejudice also seems mitigated because Bulandr’s status as a Pelican Bay inmate was no secret and an element of the charge. Moreover, the trial court instructed the jury to disregard the restraints saying: “The fact that physical restrains have been placed on [Bulandr] is not evidence. Do not speculate about the reason. You must completely disregard the circumstance in deciding the issues in the case. Do not consider it for any purpose or discuss it during your deliberations.” We presume the jury followed these instructions, and have no cause to conclude the shackling here was prejudicial.
The second error Bulandr claims his counsel made was failing to introduce documentary evidence of Bulandr’s disciplinary record for possessing multiple gallons of inmate-manufactured alcohol. Bulandr argues that because his credibility was in issue, his trial counsel erred by not introducing prison discipline records to corroborate his claim that he was a regular pruno manufacturer. Bulandr contends this “prejudiced the outcome of his trial.” However, beyond this conclusory statement in his opening brief, Bulandr makes no showing of prejudice and thus fails to meet his burden. Further, given Bulandr testified about his past “many write-ups for manufacturing alcohol at Pelican Bay and other prisons” and this unrebutted testimony was before the jury for consideration, it is not reasonably probable the result of the trial would have been different if Bulandr made a fuller showing.
C. Jury Instructions
Finally, Bulandr claims the prosecutor committed misconduct on the basis of four statements she made in her closing argument. Again, we disagree.
“ ‘ “A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutor misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” [Citation.] 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.’ ” [Citation.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument. [Citation.]’ ” (People v. Linton (2013) 56 Cal.4th 1146, 1205.) “ ‘A defendant’s conviction will not be reversed for prosecutorial misconduct’ that violates state law, however, ‘unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]’ ” (People v. Wallace (2008) 44 Cal.4th 1032, 1071.)
Bulandr first claims the prosecutor misled the jurors on the prosecution’s burden of proof beyond a reasonable doubt. In explaining the reasonable doubt standard, the prosecutor said, “Remember, beyond a reasonable doubt is not all doubt. It’s an abiding conviction. What do you believe in your heart the defendant intended to do with these pieces of metal?” At trial, Bulandr’s counsel lodged no objection to this explanation nor did he request the jury be admonished. On appeal, however, Bulandr contends the prosecutor’s statement “wrongly misdirect[ed] the jury’s focus in determining whether the State has met its burden of proof” by relying on emotion and feelings rather than the actual evidence.
We consider this challenge forfeited for counsel’s failure to object. (See People v. Bolin (1998) 18 Cal.4th 297, 326 (Bolin).) But even if it is not forfeited, the prosecutor’s explanation of reasonable doubt did not rise to the level of misconduct. In evaluating a claim of misconduct, a court examines the questioned conduct in the context of the whole argument and instructions given to the jury by the trial court. (See People v. Lucas (1995) 12 Cal.4th 415, 475.) In context, the statement did not lower the prosecution’s burden of proof. Immediately after telling the jury to consider “What do you believe in your heart,” the prosecutor focused on the evidence of intent, including the security protocols, quality and quantity of metal taken, and statements Bulandr made to Officer DiFranco. Further, the trial court instructed the jury correctly on the concept of reasonable doubt, that “[p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.” The court also advised the jury, “You must follow the law as I explain it to you even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” We presume that “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.” (People v. Sanchez (1995) 12 Cal.4th 1, 70.) For all these reasons, the prosecutor’s statement referring the jurors to what they “believe[d] in [their] heart[s]” was not minsconduct.
Bulandr also claims the prosecutor twice told the jurors the unaltered metal pieces Bulandr took were already sharp weapons. In one instance, the prosecutor stated, “He also said this is a sharp instrument. Well, in that jury instruction, if you find that this is a sharp instrument, in and of itself, you could actually find that he attempted to do the thing. He attempted to make a weapon, even though it’s technically a weapon already. You can still find him guilty of attempt.” The prosecutor was referring to CALCRIM 460, as given, which concludes that a “defendant may be guilty of attempt even if [the jury] conclude[s] the manufacture of a weapon was actually completed.” On another occasion, the prosecutor asked the jurors, “What is reasonable? Stingers. Really? Or weapons which they already are.” Again, Bulandr’s counsel lodged no objection or request for admonition to these statements either. Now, on appeal, Bulandr argues the part of the CALCRIM 460 instruction quoted above should not have been included at all because there was no evidence the metal Bulandr took had been manufactured. He also suggests this instruction could have led the jury to conclude that Bulandr’s possession of the metal was alone enough to convict him of the attempt crime.
Again, any challenge to these statements was forfeited for lack of an objection. (See Bolin, supra, 18 Cal.4th at p. 326.) But even if it were not, these two statements do not rise to the level of prosecutorial misconduct. Looking at the larger context of the prosecution’s entire closing argument and full jury instructions, we are not concerned that jurors improperly understood that they could convict Bulandr for the attempted manufacture of a weapon simply based on Bulandr’s possession of metal. Bulandr’s own trial counsel emphasized to the jury that Bulandr was not charged with possessing a weapon, notwithstanding the metal he took were sharp objects that could be considered as such. Bulandr’s counsel also implored the jurors to read the trial court’s instructions on attempt carefully. As discussed earlier, the two key elements of the attempt charge as reflected in the court’s instructions were (1) the specific intent to manufacture a weapon, and (2) acts to further the crime. Both of these elements were expressed clearly in the trial court’s instructions to the jury. Further, the court admonished the jury to follow its instructions if the jurors believe that the attorneys’ comments on the law conflicted with its instructions. Under these circumstances, we see no basis for prosecutorial misconduct based on the prosecutor’s statements equating the metal recovered from Bulandr to weapons in their existing form, which we view as peripheral to the elements of the attempt charge.
Because none of these three challenged statements amounted to prosecutorial misconduct, we disregard Bulandr’s additional argument that his counsel was ineffective for having failed to object to them.
The fourth and final misleading statement Bulandr claims the prosecutor made was her suggestion that Bulandr had been ordered to give the metal to fellow prison gang members. The prosecutor stated, “The inmate is in the general population. Is it more valuable to give weapons to your friends? I think he admitted that he was convicted of some crimes with gang enhancements. Does he have gang members in the prison that he needs to give these weapons to? Maybe he’s ordered to give it to them.” Bulandr objected on the grounds no facts supported the argument. The trial court sustained the objection and ordered the jury to “disregard the argument with regard to gangs.” In light of this objection and admonishment and our presumption the jury followed the trial court’s instruction, we conclude the prosecutor’s gang reference was not prosecutorial misconduct or prejudicial in light of the record as a whole.
DISPOSITION
The judgment is affirmed.



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Siggins, J.


We concur:


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McGuiness, P.J.


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Jenkins, J.