Filed 6/26/17 P. v. Mendoza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

RUDOLPH MENDOZA, JR.,

Defendant and Appellant.


E064638

(Super.Ct.No. RIF1104060)

OPINION


APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. Affirmed as modified.
Elisa A. Brandes, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Rudolph Mendoza Jr., was upset that his girlfriend Hope Davis had moved out of their apartment and back in with her mother and stepfather. Defendant went to the stepfather’s house in an effort to get Davis and her children back. He left and returned with a handgun. Several of Davis’s friends were at the house. When they refused to get Davis and the children out of the house, defendant shot at them hitting one of the victims in the foot.
Defendant was convicted of three counts of premeditated and deliberate attempted murder, three counts of assault with a firearm and numerous weapon-use enhancements.
Defendant makes the following claims on appeal: (1) He was denied his federal and state Constitutional rights to effective assistance of counsel because his counsel formed a defense strategy and advised defendant not to testify without first discussing the facts of the case with defendant; and (2) the prosecutor committed several instances of prosecutorial misconduct during closing argument by improperly vouching for witnesses and asking the jury to convict as a means of combating the culture of silence.
The People also contend on appeal that defendant was improperly sentenced. We will order that defendant’s sentence be modified but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. STATEMENT OF THE CASE
Defendant was found guilty of three counts of attempted premeditated and deliberate murder against Michael W., Monica R. and Alan B. (Pen. Code, §§ 664, 187, subd. (a); counts 1-3.) For the charge concerning Michael, count 1, the jury found true the special allegation that defendant personally and intentionally discharged a firearm causing great bodily injury within the meaning of section 12022.53, subdivision (d). As for the counts concerning Monica and Alan, counts 2 and 3, the jury found true the special allegations that defendant personally discharged a firearm (§ 12022.53, subd. (c).) In counts 4, 5 and 6, defendant was found guilty of assault with a firearm against the same victims within the meaning of section 245, subdivision (b) and was found guilty of additional firearm allegations for those counts (§§ 12022.5, subd. (a), 12022.7).
As to all counts, defendant was charged with having suffered one prior violent offense (§§ 667, subds. (a)); one prior serious and/or violent offense (§§ 667, subds. (c)-(e)(1); 1170.12, subd. (c)(1)); and having served one prior prison term (§ 667.5, subd. (b)). After waiving his right to a jury trial on the prior convictions, the trial court found the prior convictions true. After he was found guilty, defendant brought a Marsden motion to relieve his counsel, which was granted. Defendant’s newly appointed counsel brought a motion for new trial based on ineffective assistance of counsel, which was denied.
Defendant was sentenced to an indeterminate term of 67 years to life, plus a determinate term of 31 years eight months to be served in state prison.
B. FACTUAL BACKGROUND
1. RELUCTANT WITNESSES
In October 2011, Monica was friends with Michael and they were dating. She was also friends with Davis and Davis’s stepfather, Roy Talley. She had been to Talley’s house on Jurupa Road on several occasions. She lived two blocks from his house. She was acquainted with Alan.
She “barely” recalled what occurred on October 25, 2011. She “roughly” remembered that was the night that Michael got shot. The night that Michael was shot, she was at the Jurupa Road house. She had been asked by Talley to talk with Davis, who was having problems with her children and losing her house. Davis and Monica spoke inside the house. Monica went outside; she was sure Michael was outside but was not sure about Alan or another acquaintance, Joshua Hougue.
While she was talking to Michael, she heard a commotion on the street. She thought it was someone yelling. She then heard more than one gunshot. She did not know where the shots were coming from. Monica fell on the ground and curled up into a ball. She then heard Michael yelling “it hurts.” He was shot in the foot. Michael and Monica jumped into Alan’s car, which was parked nearby. They were stopped by the police on the way to the hospital.
Monica recalled speaking with an officer after Michael was taken to the hospital by an ambulance. She denied seeing defendant at the Jurupa Road house that day. She denied telling the officer that she, Michael, Alan and Hougue were all in the driveway when defendant showed up at the house. She did not recall telling him that defendant demanded that Davis and her kids come out of the house and that he had a gun in his hand. Monica claimed she was using methamphetamine that night and recalled nothing she said to the officer. Monica did recall that while she heard the shots, she saw dirt flying up around her as she lay on the ground.
Monica did not recall being shown a six-pack photographic lineup or identifying defendant as the shooter. She did not recall Michael having a knife that night. Monica stopped seeing Michael after that night because she was afraid. After the shooting, she moved and changed her phone number; she did not want to be found. Monica admitted that someone had told her not to testify two days prior but she did not take it as a threat.
Davis indicated that Michael and defendant were long-time friends of her family; she had known them since she was a child. Davis was not aware if Michael and defendant knew each other. Davis’s mom lived in the Jurupa Road house with Talley. Alan was Davis’s cousin. Hougue was a good family friend.
At trial, Davis could only recall that approximately two years prior she heard that Michael had been shot. Davis did not recall that she had previously testified she was at the Jurupa Road house when the shooting occurred.
Davis admitted she was dating defendant in October 2011. They had been dating for approximately one year. She lived with him for a period of time. Defendant helped Davis care for her five children even though none of them were his. Davis ended her relationship with defendant on October 23, 2011. She could not recall that defendant came to the Jurupa Road house at around 12:30 a.m. on October 25, 2011, wanting to talk to her. She did not recall talking to the police and telling them defendant had come to the house. She could not recall saying that defendant came back several hours later and started yelling from the street and that she then heard gunshots.
Davis did recall an officer coming to her house and showing her several pictures asking if any of the pictures were of defendant. She identified defendant but did not identify defendant to show he was involved in the shooting. Davis denied that anyone discouraged her from testifying. Davis never talked to Michael about him being shot in the foot.
Alan had known Davis and Talley his entire life. He went to the Jurupa Road house almost every day. Alan admitted he did not want to testify. He did not recall anything about October 25, 2011. He had never been shot at. Alan reluctantly identified defendant in court as someone he knew.
Alan admitted he took Michael to the hospital because Michael was shot at the Jurupa Road house. Alan arrived at the house after the shooting. He did not see it happen. Alan, Monica and Michael all went to the hospital together. When they got in the car, Alan noticed for the first time there was a bullet hole in his car. On the way to the hospital, they got pulled over. The police called an ambulance, which took Michael to the hospital.
Michael was in custody at the time of his testimony at trial; he did not want to testify. He was friends with Davis, Talley and Alan. He had heard of defendant and identified him in court. He had heard in 2011 that defendant and Davis were in a relationship. On the night he got shot, he went to Talley’s house on Jurupa Road in the evening to sell and do methamphetamine.
After taking methamphetamine, he walked to a nearby liquor store. Michael purchased some items in the store and walked out. He then got into a verbal altercation with someone in the parking lot. The person was not defendant. Michael described him as Caucasian, six feet tall, sandy blond hair, and a tattoo on his jaw. Michael walked away and went back to Talley’s house. The man and his friends followed him.
Michael went inside Talley’s house but heard arguing outside. He went outside and the person from the liquor store was arguing with someone who Michael thought may have been Hougue. Michael asked the man what was the problem. The man responded that Michael had disrespected him. Michael took a knife out of his pocket. The man told him to put away the knife. Suddenly the man pulled a gun on Michael. Michael called the man a punk and that is when the man shot at him. Michael heard more than one shot.
Michael was shot in the foot and asked Alan to take him to the hospital. He received 47 stitches. He had difficulty walking for four months. He claimed that the police did not question him at the hospital. Michael did not call the police when he was shot because he had “enough of them in his life already” and was on parole. Michael denied he told the officer that defendant shot him while he was standing with Monica, Hougue and Alan.
Michael claimed that when he was shown the six-pack photographic lineup he asked why they were all Hispanic males when he was shot by a Caucasian male. He denied he circled anyone and initialed the picture. He got shot in the back of the foot first because he was turning away at the time he was shot. Michael always carried the folding knife for his protection.
2. LAW ENFORCEMENT TESTIMONY
Riverside County Sheriff’s Deputy David Newman received a call about a shooting around 2:00 a.m. on October 25, 2011. He responded to the intersection of Jurupa Road and Beach. He found shell casings on Jurupa Road. One shell casing was at the end of the driveway of the Jurupa Road house. Six other shell casings were found 50 feet down the street from the first shell casing. This was consistent with the shooter moving while shooting.
Deputy Newman spoke with Davis. There were several other people present including Talley and Hougue. None of them wanted to talk to him. He surmised they did not want to be a “rat.”
Deputy Newman spoke with Davis alone. Deputy Newman had interactions with Davis prior to that night and they had a good rapport. Davis told Deputy Newman that on October 23, she and defendant got into an argument and she decided she wanted to end the relationship with him. She took her children and moved into the Jurupa Road house. Around 12:30 a.m. on October 25, defendant came to the Jurupa Road house and banged on the bedroom window where Davis and her children were sleeping. Defendant yelled her name. Davis went outside to speak with defendant. He was very angry and agitated. Defendant wanted her to leave with him but she refused. She went back inside.
Defendant left but then returned around 1:50 a.m. He yelled at her to come outside. It was then that she heard several gunshots coming from the front of the house. She went to the living room and “everyone” told her that defendant was shooting at them.
Deputy Newman also spoke with Hougue. Hougue would not tell him anything. He did not locate any bullet holes at the Jurupa Road house that night. The parties stipulated that the casings found all were fired from the same gun.
Riverside County Sheriff’s Corporal Daniel Sasser was on patrol around 2:00 a.m. when he was advised to respond to a vehicle that had been stopped, with a gunshot victim. When he arrived, Alan and Monica were sitting on the curb. Michael had already been transported to the hospital. Earlier that night, around 1:00 a.m., Corporal Sasser had stopped Alan near the area of the Jurupa Road house for a broken taillight. Corporal Sasser discovered he was on parole and searched him. He found a glass pipe for smoking methamphetamine in his car. Corporal Sasser gave Alan a ticket and let him go.
Corporal Sasser spoke with Monica alone. Monica was very upset. She told Corporal Sasser that earlier that night Davis had called her because she was having trouble with her boyfriend “Rudy.” Monica and Michael went to the Jurupa Road house. She, Michael, Alan and Hougue were standing within a few feet of each other in the driveway talking.
Monica told Corporal Sasser that Rudy approached them and was holding a handgun in his right hand. Rudy told them to go get Davis and the children from inside the house. Hougue told Rudy to put the gun down and he would fight him “one-on-one.” Rudy responded, “I’m a 47-year-old veterano. I don’t fight anymore.” Rudy again asked the group to get Davis and the children. Someone in the group said no. Rudy raised the handgun up and began shooting. Monica explained to Corporal Sasser that Rudy had the gun “down to his side and raised it up to the group and started shooting.” She and the rest of the group went to the ground to shield themselves from being shot. It appeared to Monica that defendant was shooting at all of them. As she dropped to the ground, she saw pieces of dirt flying up near her face as if something was striking the ground around her.
Rudy still continued to shoot as he ran backward to the street and hid behind a car. Michael stated he had been shot so Alan and Monica got Michael into Alan’s car and drove off.
Corporal Sasser then spoke with Alan. Alan went to the Jurupa Road house right after he was issued the ticket by Corporal Sasser. He was speaking with Hougue, Monica and Michael in the driveway when a person he knew as Rudy approached them holding a handgun. Rudy told them to get Davis and the children. When they told him no, Rudy started shooting toward them. Defendant was only a few feet from them. Alan fell to the ground to avoid being shot. Defendant was shooting as he ran down the street.
Corporal Sasser observed a bullet hole in the windshield of Alan’s car. There was a piece of a bullet on the front passenger’s seat floorboard. Michael’s bloody sock and shoe were recovered from the car.
Corporal Sasser went to the hospital to speak with Michael. Michael’s injury was not life-threatening. Michael told him, like Monica, that they went to the Jurupa Road house to help Davis. When they arrived, Michael, Monica, Alan and Hougue all stood together. Rudy, Davis’s boyfriend, approached them with a handgun in his right hand. He asked them to get Davis and the children out of the house. Rudy raised the gun up and started shooting at them and they all immediately went to the ground. He felt a “stinging” sensation in his foot. Michael also stated that Rudy continued to shoot as he ran up the street. Michael told Corporal Sasser that he could identify Rudy and that he was willing to testify.
Corporal Sasser showed Michael a six-pack photographic lineup. He signed the admonishment. Michael circled two photographs. Corporal Sasser also showed a six-pack photographic lineup to Monica. She signed the admonishment. She instantly identified defendant. Corporal Sasser did not tape the interviews; he discovered his recorder was broken.
Davis was shown a photographic lineup. Davis identified defendant from the lineup but did not see who the shooter was. Michael was contacted on October 27, 2011, two days after the shooting. He was with Hougue. Michael said the person who shot him was named Rudy. He identified him as “‘Hope’s man.’”
Monica, Davis and Alan all were difficult to get to testify. Alan and Monica failed to appear on several occasions. Both Monica and Alan had to be driven to court by sheriff’s deputies. Monica spoke with an investigator with the district attorney’s office prior to trial and admitted that defendant was the shooter. She acknowledged all of the information in the police report was accurate.
Other than submitting some exhibits, defendant presented no evidence.
DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant insists that he received ineffective assistance of counsel because his counsel never met with him prior to trial to discuss trial strategy. As a result, defendant waived his right to testify without knowing the consequences and defendant’s counsel failed to investigate or present evidence that defendant was shooting into the ground rather than at Michael, Monica and Alan, which negated his intent to kill.
1. ADDITIONAL FACTUAL BACKGROUND
Defendant stated on the record that he was choosing not to testify. Defendant was asked by defense counsel, “Mr. Mendoza, you understand you have an absolute right to testify on your own behalf in this case? Defendant responded, “Yes. I understand.” Defendant admitted on the record that he and counsel had discussed the pros and cons of testifying, the state of the evidence and that defendant understood the defenses in the case. Defendant was asked, “With all that in mind, do you want to testify on your own behalf or not?” Defendant responded, “I feel I do not want to testify.”
During discussion of the jury instructions, defendant’s counsel stated that he wanted the jury to be instructed with CALCRIM No. 505, self-defense. The evidence showed that Michael pulled a knife on the person who shot him; evidence of one of the group saying he wanted to fight; and that the shooter was backing up while shooting. The trial court felt that it should be given in case the jury believed some of Michael’s trial testimony. Defense counsel also asked for an attempted voluntary manslaughter instruction under the theory heat of passion. The trial court agreed to give the instruction.
After the trial and prior to sentencing, defendant brought a Marsden motion to remove his counsel, Ryan Markson. At the confidential hearing, defendant claimed he wanted new counsel because, “My attorney advised me not to testify when I wanted to testify. Also, he argued the lesser charge without discussing it with me in closing arguments.” Further, defendant possessed physical evidence that he wanted to share with the jury, which showed his innocence on the attempted murder charge. Defendant also stated, “Another issue, in the two years that I’ve been incarcerated in the county jail here, I’ve never had one visit from my attorney.” Defendant felt that by Markson not visiting him, “There wasn’t a way of me knowing how to act in the trial or what to say or what to do, so in that manner.” Defendant admitted he had two visits from Markson’s investigator. Defendant claimed the investigator never gave him advice or counsel.
Markson responded that he had not visited defendant in jail. Markson stated, “this might have been a tactical decision on my part, but I was confronted with a lot of evidence that was at the scene that he had fired the weapon, however, witnesses would come in and recant their testimony.” Markson also stated he had evidence that Michael had a pulled a knife on defendant so there was both a defense that defendant was not present and that he acted in self-defense. Markson explained he made a tactical decision to raise both self-defense and that defendant was not present at all.
Markson explained that he had spoken with the jurors after the trial and they had all asked why defendant did not testify and that it may have filled in some of the details. Markson stated, “Again, hindsight is 2020. Feedback from the jury often will cause you to question tactical decisions you make. But that was essentially a tactical decision I made to not put him on the stand and not let him put on a self-defense, which is really what it was and what he would have testified to. [¶] I will say that I never really got that story. He never had the opportunity to really tell me that, because I didn’t want to—I was essentially committed to the it wasn’t my client theory. Therefore, I advised him that that was why I advised him the way I did not to take the stand, because I was sticking with that particular theory.”
Markson also advised the trial court that defendant wanted him to pass on to the trial court that he had shot into the dirt. Markson stated that prior to trial defendant never told him that he was the shooter. Markson noted, “Had I inquired of that and gotten that information out of him, obviously it would have limited what I could do at trial, I think, to some extent.” If Markson had this knowledge, his investigator could have sought to obtain bullets that may have been in the ground at the Jurupa Road house.
The trial court ruled, “I’m going to go ahead and grant the motion for appointment of new counsel. While I think that the potential grounds for grant of new trial are weak, I think that it’s worth appointing new counsel to explore the possibility of a motion for new trial being brought.”
Defendant’s new counsel filed a motion for new trial. The motion argued that defendant received ineffective assistance of counsel because Markson failed to meet with defendant at the jail, he advised defendant not to testify, and because of newly discovered evidence.
At the hearing on the motion, defendant’s new counsel argued that despite the on-the-record waiver of his right to testify, it was clear that defendant was not properly counseled. This was evidenced by Markson not visiting and talking to defendant. Further, defendant received ineffective assistance of counsel because, although Markson had the case for two years, he never had discussions with defendant about trial tactics, constitutional rights or defenses. Further, Markson failed to investigate the defense of lack of intent to kill and premeditation/deliberation because defendant shot into the ground. Defendant’s new counsel argued that the standard for review was that this was newly discovered evidence because he could not present it because his attorney was not available. Defendant did not receive a fair trial.
The prosecutor responded that defendant and Markson had time during the trial and preliminary hearing to conference. The record was clear that defendant made a knowing and intelligent waiver. Finally, the prosecutor argued there was no prejudice. The testimony of the witnesses established that defendant was shooting at the ground. The witnesses testified that the ground around them was peppered with bullets. Even with the evidence that there were shots into the ground, the jury still determined that defendant had the intent to kill. Further, this was not new evidence because defendant had the knowledge but did not share it with his counsel.
Defendant’s counsel attested that as a criminal defense attorney it was “absolutely incumbent” upon counsel to visit his or her client. Markson admitted that defendant never had the opportunity to tell him his story. Finding the bullets in the ground could have been helpful to the defense. It could have shown he was shooting into the ground instead of trying to kill the people that were there.
The prosecutor did not believe that recovery of the bullets was material to the case. No gun was found to match. The witnesses all agreed that the shots were going into the ground. In addition, defendant’s new counsel felt it was bad trial practice to simultaneously argue identity and self-defense.
The trial court first found as to the in-court waiver of defendant’s right to testify; it was clear based on the extended on-the-record discussion between counsel and defendant, that defendant knowingly and intelligently waived his right to testify.
The trial court did find that Markson failed to visit defendant during trial as would be appropriate within the standard of care for a criminal defense attorney to adequately prepare the defense of his client. However, there was no prejudice. The argument for self-defense was supported by the evidence. The testimony also provided that the shots were being fired into the ground. The trial court believed as to the new evidence argument, that the failure to inquire with a client as to a specific factual basis falls below the standard of care. Trial counsel should have explored all possible defenses with defendant.
The trial court concluded, “And if Mr. Markson had inquired further with respect to the specific aim that [defendant] might have been taking at the time of the firing of the firearm, that that may have led to further investigation and discovery of—physical discovery of physical evidence at the scene of the offense. But, again, given the fact that substantial evidence did support a finding that shots were being fired at the ground which the jury must have rejected, then I think that no prejudice did ensue. For that reason, the motion for new trial is denied on all grounds.”
2. ANALYSIS
“To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performance fell below an objective standard of reasonableness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see also Strickland v. Washington (1984) 466 U.S. 668, 687–694.)
We “‘need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.’” (In re Jackson (1992) 3 Cal.4th 578, 604, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6.)
Here, even assuming Markson’s performance was unreasonable for failing to meet with defendant at jail to discuss trial strategy and advising him not to testify, defendant cannot show he was prejudiced. “To establish prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.] In demonstrating prejudice, the appellant ‘must carry his burden of proving prejudice as a “demonstrable reality,” not simply speculation as to the effect of the errors or omissions of counsel.’” (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147.)
Here, defendant claims that Markson’s failure to meet with him prior to trial led Markson to only raise the defenses of identify and self-defense. Markson failed to consider the defense that defendant lacked the intent to kill. In this context, Markson advised defendant not to testify because it would defeat his defense of identity.
As noted by the trial court, ample evidence was presented that defendant was shooting into the ground. Michael, Alan and Monica all went to the ground when the shots were fired. Monica described the dirt around her kicking up into the air from the bullets. Michael was shot in the foot. Although Markson initially pursued identity and self-defense, during closing argument, Markson argued there was no intent to kill because Michael was only shot in the foot. Markson argued that if defendant intended to kill, he would not have shot Michael in the foot and shot into the dirt. If there was no intent to kill, there was no attempted murder.
Based on the record, the jury was advised it could conclude there was no intent to kill Monica, Alan and Michael because he shot into the ground. However, the jury rejected this evidence and found that defendant committed premeditated and deliberate attempted murder. Also, even if defendant had testified that he was shooting at the ground, the result of the proceeding would not have been different. Monica testified that she, Michael and Alan all fell to the ground when the shooting began. If defendant had testified that he was shooting into the ground, it would not have bolstered a defense that he had no intent to kill.
Moreover, although the witnesses recanted at trial, there was strong evidence presented to support the verdict. Michael, Monica and Alan advised Deputy Newman and Corporal Sasser immediately following the shooting that it was “Rudy” or defendant who came to the Jurupa Road house and shot at them. Their statements to the police, all given individually, were strikingly similar. Their testimony was corroborated by Michael, Monica and Alan all being together after the shooting, the casings found at the Jurupa Road house and the bullet hole in Alan’s car. Further, Davis acknowledged at trial she and defendant had broken up two days prior to the shooting.
Monica admitted at trial she was advised two days prior to trial not to testify against defendant. She had no contact with Michael after the shooting because she was afraid. Both Michael and Alan had previous run-ins with law enforcement and did not want to testify. It was reasonable to infer that they changed their testimony at trial. The evidence supported that defendant was the shooter and that he deliberately shot at the victims.
Based on the foregoing, there is not a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings.
B. PROSECUTORIAL MISCONDUCT
Defendant claims the prosecutor committed several instances of prejudicial misconduct during closing argument.
“‘Under California law, a prosecutor commits reversible misconduct if he or she makes use of “deceptive or reprehensible methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action “‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’”’” (People v. Fuiava (2012) 53 Cal.4th 622, 679.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm.” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
Failure to object or request an admonition forfeits the claim of prosecutorial misconduct and it will not be reviewed on appeal. (People v. Mendoza (2007) 42 Cal.4th 686, 705; People v. Gionis (1995) 9 Cal.4th 1196, 1215.) “‘The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu).) When the trial court admonishes the jury to disregard the prosecutor’s comments, “[w]e assume the jury followed this instruction, and that any prejudice thus was avoided.” (People v. Jones (1997) 15 Cal.4th 119, 168, overruled on other ground in People v. Hill (1998) 17 Cal.4th 119.)
We initially note that at no time did defendant object “expressly or even impliedly referring to the federal Constitution and thus forfeited the issue.” (Seumanu, supra, 61 Cal.4th at p. 1332.)
Defendant first contends the prosecutor committed misconduct during his opening argument based on comments made about Hougue who did not testify at trial. The prosecutor argued, “There are six counts divided into two kinds of crimes. First one, 1 through 3, attempted murder. We’re talking victims Michael [W.], Alan [B.], and Miss Monica [R.]. There is a question I’m sure everyone has, what about Joshua Hougue? Why isn’t Joshua Hougue charged as a victim in this case? Why haven’t we heard from Joshua Hougue? Why wasn’t any of Joshua Hougue’s statements brought up in court. Here is the simple fact, simple truth, I’ll be very transparent. Joshua Hougue couldn’t be found.”
Defense counsel objected, “Objection; that is not in evidence.” The objection was sustained. Defense counsel then objected, “Counsel is testifying.” The objection was sustained.
The prosecutor continued “Joshua’s Hougue’s testimony was not before you. When Joshua Hougue does not come to the stand to testify, we cannot use anything he says. The defendant has a right to cross-examine the witnesses, so none of what Joshua Hougue says can be brought into court and it wasn’t.”
Defendant contends that the prosecutor’s comments about Hougue implied there were facts known to the prosecution, but not placed in evidence, that supported a guilty verdict for the remaining three victims.
Initially, although the trial court sustained the objection to this argument, defendant did not ask that the jury be admonished. As previously stated, the failure to request the jury be admonished forfeits the issue unless an admonition would not have cured the harm caused by the misconduct. (Seumanu, supra, 61 Cal.4th at p. 1328.) Here, had defendant asked, the jury easily could have been instructed not to speculate why Hougue was not a witness in the case and to disregard the prosecutor’s comments. Such failure to request an admonition that would have clearly mitigated or alleviated any potential prejudice forfeits the claim on appeal. (People v. Mendoza, supra, 42 Cal.4th at p. 705.)
Moreover, on appeal, defendant contends for the first time that these comments advised the jurors that there were facts known to the prosecutor and not placed into evidence, which supported a guilty verdict for the remaining three victims. The evidence presented to the jury supported that Hougue was present during the shooting. The comment by the prosecutor that Hougue could not be found to testify did not amount to advising the jurors that there was evidence supporting the charges of attempted murder against Michael, Monica and Alan that was not presented. Finally, the prosecutor himself admonished the jury that this was not evidence in the case. The only misconduct was that the prosecutor advised the jurors that Hougue could not be found.
Additionally, the defendant complains the prosecutor “vouched” for the witnesses and “placed the prestige of the government behind [its] witnesses by telling the jury that he had a ‘duty’ not to prosecute unless he believed in defendant’s guilt.” Further, defendant refers to the prosecutor commenting on the problem with witnesses not wanting to testify for fear of the consequences and the prosecutor improperly asked the jury to combat this problem by finding defendant guilty. This improperly implied that the witnesses were threatened to recant their testimony.
Defendant fails to identify the specific objectionable comments made by the prosecutor. In the relevant facts and procedures presented by the defendant, he referred to the following argument by the prosecutor: “One of my jobs as a DA is to show you that this is real, to wake our community up to say, we can’t turn a blind eye only because the witnesses aren’t going to come forward. We still need to pursue justice. And we saw that. Fear, intimidation, the consequences of ratting, being a snitch. However—however, we have tools to combat this culture of silence. What tools do we have? We have basically you, our jurors, to see through that silence and to still seek the truth.” There was no objection by counsel. Such failure to object waives the issue on appeal. (People v. Mendoza, supra, 42 Cal.4th at p. 705.) Moreover, it was reasonably implied that the witnesses recanted either for fear of being a “rat” or the consequences.
Defendant contends that if this court finds that he waived any claim of prosecutorial misconduct by failing to object, that he received ineffective assistance of counsel. Defense counsel’s failure to object did not constitute ineffective assistance of counsel. Notwithstanding defendant’s contention otherwise, defense counsel could have had a valid tactical reason for failing to object. (People v. Farnam (2002) 28 Cal.4th 107, 202.) Moreover, as will be discussed post, the prosecutor’s remarks did not constitute prejudicial misconduct to support a claim of ineffective assistance of counsel.
Defendant also referred to the following argument made by the prosecutor in rebuttal in his relevant facts and procedures: “[Defense counsel] tried to say he is not trying to be an advocate here. He is trying to present the evidence. Let’s be clear. We’re both advocates. I present the evidence to you in a certain way and I argue to you that I believe the evidence shows this. And why do I say those things? I’m not allowed to say what I believe. There is rules about what we can say in closing, what we can’t. One of the things I cannot say—the rule says I cannot, is my opinion about a case, what I believe happened. [¶] I can’t. But I can also tell you that the prosecute in any case has a duty. If he doesn’t believe in guilt, you can’t prosecute. That is the law.”
Defense counsel objected as improper argument, which was sustained by the trial court. The jury was admonished, “Ladies and gentlemen, you have been instructed on the law that applies to this case and that is the law that you are to entertain when coming to a decision in this matter. Counsel has suggested, in an inadvertent manner, that he may have an opinion about a particular case. That is not proper and I have admonished the prosecutor in that respect.”
“As a general matter, ‘[i]mpermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.’ [Citation.] Similarly, evidence of a prosecutor’s subjective motivations when prosecuting a case is not relevant, for ‘[i]t is misconduct for prosecutors to bolster their case “by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.” [Citation.] Similarly, 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 government’s view of the evidence.”’” (Seumanu, supra, 61 Cal.4th at pp. 1329-1330.) Here, the jury was admonished it was not to consider the opinions of the prosecutor. We presume the jurors heeded the admonishment and did not consider the comments made by the prosecutor. (People v. Jones, supra, 15 Cal.4th at p. 168.)
“In order to be entitled to relief under state law, defendant must show that the challenged conduct raised a reasonable likelihood of a more favorable verdict. In order to be entitled to relief under federal law, defendant must show that the challenged conduct was not harmless beyond a reasonable doubt.” (People v. Blacksher (2012) 52 Cal.4th 769, 828, fn. 35; People v. Pigage, supra, 112 Cal.App.4th at p. 1375.) As noted, defendant failed to object on federal Constitutional grounds. Regardless, under either standard, any errors by the prosecutor were not prejudicial.
Defendant contends the case against him was not strong, relying mostly on impeachment evidence. The argument by the prosecutor encouraged the jury to find he was guilty despite the weakness of the evidence because the evidence supported a fourth charge; defendant was guilty because the prosecutor had a legal duty only to prosecute those cases where the defendant is guilty; and a conviction was required to fight against the unwillingness of people to cooperate with police.
As previously noted, the jury was admonished that it could not consider the prosecutor’s opinions of the witnesses or his views on the case. Further, as noted, the other comments by the prosecutor for which an admonition was not given could have been easily cured by an admonition to the jury. Additionally, prior to and after trial, the jury was instructed, “Nothing that the attorneys say is evidence. In their opening statement and closing arguments, the attorneys will discuss the case, but their remarks are not evidence.” We presume the jury followed the instructions. (People v. Jones, supra, 15 Cal.4th at p. 168.)
Finally, the evidence against defendant was strong, as outlined in detail ante. Although the witnesses recanted at trial, the evidence established that defendant was Davis’s boyfriend and that they were in an argument that night. Further, there was no dispute that a shooting occurred at the Jurupa Road house and all of the witnesses immediately advised the responding officers that the shooter was Davis’s boyfriend, or defendant. There was no prejudicial prosecutorial misconduct.
C. SENTENCING ERRORS
Respondent contends that (1) the trial court imposed an unlawful sentence by imposing one-third the midterm on count 3 for the special allegation pursuant to section 12022.53, subdivision (c); and (2) that the decision to stay the imposition of sentence on the section 667.5, subdivision (b) prison prior was error but the trial court clearly intended to strike the enhancement. Defendant concedes the error on the section 12022.53, subdivision (c) sentence.
The trial court imposed its sentence as follows: on counts 1, 2 and 3, defendant was sentenced consecutively for 14 years to life on each count. In addition, defendant was sentenced to 25 years to life on count 1 for the section 12022.53, subdivision (d) allegation. He was sentenced to a determinate term of 20 years on count 2 for the firearm allegation pursuant to section 12022.53, subdivision (c). On count 3, the trial court imposed one-third the midterm, six years and eight months, on the section 12022.53, subdivision (c) enhancement. The trial court imposed an additional five years for the section 667, subdivision (a) prior conviction. Counts 4, 5 and 6 were stayed. The trial court imposed but stayed the sentence on the section 667.5, subdivision (b) prior conviction.
“[T]he court should impose the full term for enhancements attached to indeterminate terms.” (People v. Felix (2000) 22 Cal.4th 651, 656.) Here, defendant was sentenced to 14 years to life on count 2. As such, the full 20-year term for the section 12022.53, subdivision (c) enhancement on count 3 should have been imposed.
Moreover, since defendant was convicted for the same prior offense pursuant to sections 667, subdivision (a)(1) and 667.5, subdivision (b), the one-year stayed sentence on the prior prison enhancement should be stricken. A sentence cannot be enhanced for a prior conviction found true under section 667, subdivision (a)(1) and for a prior separate prison term found true under section 667.5, subdivision (b) for the same conviction. (People v. Jones (1993) 5 Cal.4th 1142, 1144–1145, 1150; People v. Perez (2011) 195 Cal.App.4th 801, 805.) The judgment must be modified to strike the one-year enhancement under section 667.5, subdivision (b) as it could not be imposed. (Jones, at p. 1153; Perez, at p. 805; but see People v. Brewer (2014) 225 Cal.App.4th 98, 102-107 [impose and stay proper pursuant to California Rules of Court, rule 4.447].)
DISPOSITION
The order imposing a sentence of six years eight months on the Penal Code section 12022.53, subdivision (c) firearm allegation for count 3 must be modified to impose a 20-year term. The sentence on the section 667.5, subdivision (b) prior must be stricken. The trial court shall modify the sentence and prepare an amended abstract of judgment to be forwarded to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
Acting P. J.


We concur:


CODRINGTON
J.


SLOUGH
J.