Filed 6/28/17 P. v. Valdovinos CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

ORLANDO ACOSTA VALDOVINOS,

Defendant and Appellant.

F072041

(Super. Ct. No. LF010430A)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.
Maureen L. Fox, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

Defendant Orlando Acosta Valdovinos was charged with attempted murder of a peace officer (Pen. Code, §§ 187, subd. (a), 664 [count 1]); assault of a peace officer with a firearm (§ 245, subd. (d)(1) [count 2]); and criminal threats against his spouse (§ 422 [count 3]). The information further alleged: in connection with counts 1 and 2, he personally and intentionally discharged a firearm and proximately caused great bodily injury to the victim (§ 12022.53, subd. (d)); in connection with count 1, he knew or reasonably should have known the victim was a peace officer engaged in the performance of his duties (§ 664, subd. (e)); and, in connection with count 3, he personally used a firearm (§ 12022.5, subd. (a)). The jury found defendant guilty as charged and found true all special allegations. The trial court imposed life with the possibility of parole after seven years, plus 25 years to life for firearm discharge resulting in great bodily injury, on count 1; and three years, plus four years for firearm use, on count 3.
On appeal, defendant contends (1) the evidence did not support a finding of great bodily injury; (2) the trial court did not adequately instruct the jury on great bodily injury; (3) the prosecutor committed misconduct during his summation; and (4) the cumulative effect of the abovementioned errors violated due process. For the reasons set forth below, we reject these claims and affirm the judgment.
STATEMENT OF FACTS
I. Prosecution’s case-in-chief.
On December 21, 2014, at or around 4:00 a.m., defendant and his wife Yolanda Rosales returned to their apartment in Arvin. They had been drinking beer with friends and were intoxicated. Approximately two hours after she fell asleep, Rosales was awakened by defendant. He was simultaneously holding her cell phone and pointing a gun at her. Defendant told Rosales he found “[p]orn stuff” on her phone, called her a “bitch,” and stated she was “gonna die right now.” Rosales screamed. Defendant remarked, “Just watch, you bitch, and stop yelling, ‘cause they’re going to call the cops . . . .” He also indicated he would “confront” the police if they showed up.
Officers Jeffrey Packebush and Brett Barker arrived at the apartment at or around 6:05 a.m. in response to a noise disturbance call. Rosales answered Packebush’s knock on the door and said, “Take him, take him.” She “was crying” and her face “was very red.” Packebush encountered defendant, who was in the hallway of the apartment. Defendant concealed his right hand behind his back. Packebush ordered him to show both hands, but he did not comply. When Packebush grasped defendant’s left wrist, defendant produced a black semiautomatic pistol from behind his back. He pointed the weapon at Packebush’s head. Packebush “slapped the pistol away [from his face] with the back of [his] left hand” “to the left” and “moved [his] head to the right.” Defendant fired and a bullet struck Packebush’s left shoulder, which caused a “significant[]” “burning sensation” and loss of blood. Defendant fired additional shots before he was eventually disarmed and subdued.
Paramedics treated Packebush at the scene. The wound was “through-and-through”: the bullet “entered and exited through [the] body,” “tear[ing] . . . muscle tissue,” but “[d]idn’t hit any bones.” Packebush was given a dose of morphine for the pain, which he described as “moderate[].” He did not receive any stitches. Thereafter, he experienced bruising, swelling, and sensitivity to touch, but the residual pain “did not linger for very much at all.”
At trial, Packebush testified he was prescribed pain medication for his injury. However, he refused to take it because “[his] father was an addict” and “[he]’d rather tolerate a little bit of pain than use painkillers.” Packebush’s left shoulder was no longer “[at] 100 percent,” which adversely affected his ability to participate in contact sports. As a result, he stopped playing football permanently. Before the injury, Packebush played in a semi-professional football league for approximately seven years.
II. Defense’s case-in-chief.
Defendant confirmed he and Rosales had been drinking beer with friends prior to the incident. He had also smoked crystal methamphetamine. After defendant and Rosales returned to their apartment, they went to bed. However, defendant could not fall asleep. He then ingested more methamphetamine. Due to the drugs, defendant became distrustful of Rosales and “thought that she was hiding something from [him].” He checked her phone, found “[p]ornographic pages” and concluded she “was cheating on [him].” Defendant woke up Rosales and an argument ensued. He denied threatening to kill her. As the pair continued to bicker, defendant retrieved his firearm. He testified he was going to his job at a cherry tree ranch and needed his gun because “[he] ha[d] some personal problems” and the worksite was “an isolated place.”
Before defendant could leave the apartment, he heard a knock on the door. He hid the gun behind his back as Rosales was opening the door. Defendant saw Packebush and decided he wanted the officer “to fire at [him].” He pointed the gun at Packebush when the latter stood about two feet away. When Packebush swatted defendant’s hand, the gun accidentally discharged. Defendant did not remember pulling the trigger. He did not intend to pull the trigger or kill Packebush.
DISCUSSION
I. Substantial evidence supported a finding of great bodily injury.
a. Standard of review.
“In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Albillar (2010) 51 Cal.4th 47, 59-60.) We “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) “If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Albillar, supra, at p. 60.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the . . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 632.)
b. Analysis.
“[A]ny person who, in the commission of a felony specified in subdivision (a),[ ] . . . personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, . . . to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (§ 12022.53, subd. (d).)
Great bodily injury “means a significant or substantial physical injury.” (§ 12022.7, subd. (f); accord, People v. Cross (2008) 45 Cal.4th 58, 63 (Cross).) “[W]hether a victim has suffered physical harm amounting to great bodily injury is not a question of law for the court but a factual inquiry to be resolved by the jury.” (Cross, supra, at p. 64.) “ ‘ “A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.” ’ [Citations.] Where to draw that line is for the jury to decide.” (Ibid.)
“Proof that a victim’s bodily injury is ‘great’ . . . is commonly established by evidence of the severity of the victim’s physical injury, the resulting pain, or the medical care required to treat or repair the injury.” (Cross, supra, 45 Cal.4th at p. 66.) There is “no specific requirement that the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’ disfigurement, impairment, or loss of bodily function.” (People v. Escobar (1992) 3 Cal.4th 740, 750 (Escobar); see People v. Le (2006) 137 Cal.App.4th 54, 58-59 [“[A] ‘significant or substantial physical injury’ need not meet any particular standard for severity or duration . . . .”].)
The record, viewed in the light most favorable to the prosecution, establishes Packebush was shot in the left shoulder at close range. While the bullet entered and exited his body without hitting any bones, it tore muscle tissue. Immediately after he was shot, Packebush experienced a “significant[]” “burning sensation” as well as profuse blood loss. (See People v. Lopez (1986) 176 Cal.App.3d 460, 462-465 [one victim sustained great bodily injury after she was shot in the left leg and felt “ ‘fire’ ” even though the bullet did not fragment when it entered and exited the thigh].) He later complained of swelling, bruising, and sensitivity to touch. At trial, he testified his left shoulder is less than “100 percent” and can no longer tolerate the physicality of football, a contact sport he had played for about seven years at a semi-professional level. From these facts, a reasonable jury could find great bodily injury.
Defendant maintains a finding of great bodily injury cannot be upheld considering, inter alia, (1) the bullet did not fragment and lodge in Packebush’s body; (2) the entry and exit wounds were each about one-half inch in diameter; (3) the pain subsided to a “moderate” degree by the time paramedics arrived and subsequently “did not linger for very much at all”; (4) Packebush was not hospitalized; (5) follow-up treatment was minimal; (6) the wound did not become infected; (7) Packebush refused to take his prescribed medication; and (8) Packebush can still walk, stand, and sit unassisted. “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955.) “ ‘ “If there is sufficient evidence to sustain the jury’s finding of great bodily injury, we are bound to accept it, even though the circumstances might reasonably be reconciled with a contrary finding.” ’ [Citation.]” (Escobar, supra, 3 Cal.4th at p. 750, fn. omitted.) Such evidence exists.
II. The trial court adequately instructed the jury on great bodily injury.
a. Background.
Following closing arguments, the court issued CALCRIM Nos. 200 (Duties of Judge and Jury) and 3149 (Personally Used Firearm: Intentional Discharge Causing Injury or Death). CALCRIM No. 200 reads in part:
“Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.”
CALCRIM No. 3149 reads in part:
“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.”
Prior to closing arguments, defendant asked the court to add the following sentence to CALCRIM No. 3149 to “give more concrete guidance to the jury” “about what types of injuries will qualify as . . . great bodily injury”:
“Great bodily injury includes, but is not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.”
After reviewing the relevant case law, the court rejected the request:
“It’s my feeling that we go with the definition simply as given in the instruction. And counsel can certainly argue what the evidence is, but I think to say . . . . [¶] . . . great bodily injury includes, but is not limited to, . . . [l]oss of consciousness, concussion, bone fracture, protracted loss or impairment of function of any bodily member or organ, a wound requiring extensive suturing and serious disfigurement, is a limitation on the jury’s factual determination of what great bodily injury is.
“The other alternative is to add to it language such as receiving a bullet wound, and the further phrase a significant or substantial physical injury standard does not require that the victim suffer permanent, prolonged, or protracted disfigurement, impairment, or loss of bodily function, or even hospitalization or medical treatment.
“That’s why I kind of think that we have to go with what’s in . . . the jury instruction . . . . [¶] . . . [¶]
“. . . I think it’s in the province of the jury to make that determination from the definition given, and really there’s no requirement for serious disfiguration in any of the cases that I’ve looked at . . . .”
During deliberation, the jury submitted the following query: “Can we get a clarification on the definition of great bodily injury? Minor, moderate, significant, and substantial – can these words be clarified in any way?” Outside the jury’s presence, the court notified counsel about the request. The court again reviewed the relevant case law and, after conferring with counsel, concluded:
“I propose that we tell the jur[ors] that they are to be guided by the definition set forth in [CALCRIM No. 3149] defining great bodily injury as . . . significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. This is a factual issue for you ladies and gentlemen to determine, period. [¶] . . . [¶]
“And then also tell them that I will read a portion of [CALCRIM No.] 200 . . . and it reads as follows: Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings. [¶] . . . [¶]
“I have just defined the meaning of great bodily injury. Now I tell them as to the words contained within the definition of [great bodily injury], words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings; that is, to my understanding, the words ‘significant or substantial physical injury; an injury that is greater than minor or moderate harm.’ [¶] I’m telling them to use the common sense, ordinary, everyday meanings for those . . . . [Great bodily injury] is the [phrase] that’s defined in this instruction, and so they have to follow the definition. But as to the meaning of the words contained in that definition, since they’re not further defined, they use their ordinary or everyday meanings.”
Counsel concurred.
Thereafter, the court summoned the jury and pronounced:
“The term great bodily injury . . . is defined in multiple instructions, but specifically [CALCRIM No.] 3149, . . . as follows: Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
“And you asked for a more specific clarification. I direct you back to an instruction we read – the first one that I read yesterday, [CALCRIM No.] 200 . . . . There is a paragraph that reads as follows: Some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use, such as great bodily injury. These words and phrases will be specifically defined in these instructions; hence, [CALCRIM No.] 3149. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings, referring to the words within that definition.”
The jury resumed deliberation. Approximately an hour later, it returned its verdict.
b. Standard of review.
“The legal adequacy of an instruction is reviewed independently.” (People v. Cole (2004) 33 Cal.4th 1158, 1210.)
“An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745-746.) “Under the abuse of discretion standard, ‘a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1004; see People v. Kipp (1998) 18 Cal.4th 349, 371 [“A court abuses its discretion when its ruling ‘falls outside the bounds of reason.’ ”].)
c. Analysis.
First, defendant contends the court improperly “den[ied] [his] request for [a] more specific instruction on great bodily injury . . . .” We disagree.
“The trial court should give amplifying or clarifying instructions when the terms used in an instruction ‘ “have a ‘technical meaning peculiar to the law.’ ” ’ [Citations.]” (People v. Woodward (2004) 116 Cal.App.4th 821, 834.) “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574; accord, Cross, supra, 45 Cal.4th at p. 68; People v. Lopez (2011) 199 Cal.App.4th 1297, 1306-1307.) “Thus, . . . terms are held to require clarification by the trial court when their statutory definition differs from the meaning that might be ascribed to the same terms in common parlance.” (People v. Estrada, supra, at pp. 574-575; accord, People v. Lopez, supra, at p. 1307.)
Here, the jury was instructed that great bodily injury is “significant or substantial physical injury” “that is greater than minor or moderate harm.” This definition comports with the law. (See §§ 12022.53, subd. (d), 12022.7, subd. (f); Cross, supra, 45 Cal.4th at pp. 63-64.) The instruction does not define “significant,” “substantial,” “minor,” or “moderate.” Nor do the pertinent authorities ascribe special meaning to these terms. (See §§ 12022.53, subd. (d), 12022.7, subd. (f); Cross, supra, 45 Cal.4th at pp. 63-66; see also Escobar, supra, 3 Cal.4th at p. 750, fn. 3 [“ ‘The term “great bodily injury” has been used in the law of California for over a century without further definition and the courts have consistently held that it is not a technical term that requires further elaboration.’ ”].) Thus, “[t]he jurors’ common understanding of [‘significant,’ ‘substantial,’ ‘minor,’ and ‘moderate’] was all that was required.” (People v. Raley (1992) 2 Cal.4th 870, 901.) “ ‘There is no need to instruct a jury on the meaning of terms in common usage, which are presumed to be within the understanding of persons of ordinary intelligence.’ [Citation.]” (Ibid.)
Second, defendant contends the court erred by “failing to provide more specific assistance to an uncertain and confused jury . . . .” Once again, we disagree.
“Section 1138[ ] imposes upon the court a duty to provide the jury with information the jury desires on points of law.” (People v. Smithey (1999) 20 Cal.4th 936, 985, fn. omitted.) “This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97, italics omitted.)
Here, upon receipt of the jury’s query and in exercise of its discretion, the court reexamined the pertinent authorities on great bodily injury, conferred with counsel, and determined it could provide the clarification by rereading CALCRIM No. 200 in a tailored fashion. The court subsequently advised the jury that “[w]ords and phrases not specifically defined in” CALCRIM No. 3149—i.e., “significant,” “substantial,” “minor,” and “moderate”—“are to be applied using their ordinary, everyday meanings . . . .” Since “ ‘[t]here is no need to instruct a jury on the meaning of terms in common usage,’ ” (People v. Raley, supra, 2 Cal.4th at p. 901), we cannot say the court erred by not going further.
Nonetheless, defendant insists CALCRIM No. 3149 should have been modified to define great bodily injury in the same manner that section 243, subdivision (f)(4) defines serious bodily injury because the two phrases are “essentially equivalent.” “We recognize that the terms ‘serious bodily injury’ and ‘great bodily injury’ have been described as ‘ “ ‘essential[ly] equivalent’ ” ’ [citation] and as having ‘substantially the same meaning’ [citation]. [Citation.] However, the terms in fact ‘have separate and distinct statutory definitions.’ [Citation.]” (People v. Santana (2013) 56 Cal.4th 999, 1008.) “Unlike serious bodily injury, the statutory definition of great bodily injury does not include a list of qualifying injuries . . . .” (People v. Taylor (2004) 118 Cal.App.4th 11, 24.) This was not always the case: when first enacted in 1976, section 12022.7 originally defined great bodily injury as “ ‘ “a serious impairment of physical condition, which includes any of the following: [¶] (a) [p]rolonged loss of consciousness[,] [¶] (b) [s]evere concussion[,] [¶] (c) [p]rotracted loss of any bodily member or organ[,] [¶] (d) [p]rotracted impairment of function or any bodily member or organ or bone[,] [¶] (e) [a] wound or wounds requiring extensive suturing[,] [¶] (f) [s]erious disfigurement[,] [¶] (g) [s]evere physical pain inflicted by torture.” ’ [Citations.]” (Escobar, supra, 3 Cal.4th at pp. 746-747; cf. § 243, subd. (f)(4).) Before the statute took effect on July 1, 1977, however, the Legislature discarded this detailed definition in favor of the broad phrase “ ‘significant or substantial physical injury,’ ” evincing an intent “to preclude the possibility that the specific examples set forth [in the original definition] would be construed as exclusive of other types of injury not expressly enumerated.” (Escobar, supra, at p. 747; see People v. Bland (2002) 28 Cal.4th 313, 337 [“ ‘ “ ‘It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” ’ ”]; People v. Trevino (2001) 26 Cal.4th 237, 242 [“When the Legislature uses materially different language in statutory provisions addressing the same subject or related subjects, the normal inference is that the Legislature intended a difference in meaning.”].) “[W]hen they are accurate, [jury instructions] restate the law.” (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7.) When we consider a jury instruction’s precise language, the different definitions for the two terms matter. (People v. Johnson (2016) 244 Cal.App.4th 384, 392.) The trial court correctly denied the request to superimpose section 243, subdivision (f)(4)’s definition of serious bodily injury onto CALCRIM No. 3149.
III. Defendant forfeited his claim of prosecutorial misconduct. Alternatively, his claim of ineffective assistance of counsel must be rejected because the appellate record does not shed light on why his attorney acted or failed to act in the challenged manner.
a. Background.
In his summation, the prosecutor offered Rosales’ testimony, namely her statement defendant would “confront” the police if they showed up, as proof of defendant’s intent to kill Packebush:
“So let’s look at the circumstantial evidence in support of the theory that this defendant intended to kill this victim.
“Well, let’s start off with perhaps the most effective piece of evidence that we have. He said he was going to confront the cops. He was gonna shoot it out with the cops. I hope the cops don’t come here. That’s what he told Yolanda Rosales. [¶] . . . [¶]
“And he told her I’m gonna confront the cops if they show up. And she wanted the cops to show up. She was yelling so loud so that someone would call the cops. . . . [¶] . . . [¶]
“When you saw the officers, when Yolanda opened the door, you could have walked back to the bedroom, put the gun away. Why wouldn’t you do that? Because you had an intent to kill the officers. You wanted to settle the score.
“You know what, I told you not to call the officers. If they show up here, I’ll kill them. She didn’t call them, but someone else called them for her, and he did the very act that he said he would do. [¶] . . . [¶]
“Now, he thought someone had called the cops. . . . [W]hy would you mention that to Yolanda? Why would you say if the cops show up I’m going to kill them? I’m going to – pardon me. He didn’t say kill them.
“I’m going to shoot it out with them. I’m going to confront them. Why would he say that? Because he thought there was a good chance because she was yelling so loud. [¶] . . . [¶]
“. . . Did he pull the trigger of his own accord? Did he want to pull the trigger. Was that his intention?
“And we would argue that by telling Yolanda that he did want to confront the cops and that he was going to shoot it out with them, he did.”
Defense counsel did not object.
b. Analysis.
Defendant alleges “the prosecutor committed misconduct by stating matter not in evidence.” (Some capitalization omitted.) He “is precluded from raising this issue on appeal, however, because he failed to timely object and request the jury be admonished.” (People v. Wharton (1991) 53 Cal.3d 522, 566.) The Supreme Court has “stated an exception to the requirement that trial counsel must object to each instance of misconduct to preserve it on appeal when the ‘misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) This was not the case here.
Even if we assume, arguendo, defendant preserved the issue for appeal, we find no prosecutorial misconduct. “ ‘It is settled that a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ ” (People v. Wharton, supra, 53 Cal.3d at p. 567.) The record shows defendant was intoxicated on alcohol and crystal methamphetamine. Suspecting Rosales of infidelity, he retrieved a firearm and threatened to kill her. When Rosales screamed, defendant ordered her to quiet down so that no one would call the police. He then indicated he would “confront” the police if they did show up. Under these circumstances, it was highly unlikely defendant meant he would only “talk” with law enforcement, as Rosales suggested at trial. It was more reasonable to infer, as the prosecutor did, that the armed defendant intended to instigate a violent altercation.
In the alternative, defendant asserts his attorney rendered ineffective assistance because he did not object to the prosecutor’s remarks. To establish ineffective assistance of counsel, a defendant must show (1) defense counsel did not provide reasonably effective assistance in view of prevailing professional norms; and (2) defense counsel’s deficient performance was prejudicial. (See People v. Oden (1987) 193 Cal.App.3d 1675, 1681, citing Strickland v. Washington (1984) 466 U.S. 668, 687-688.) “It is . . . particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (People v. Scott (1997) 15 Cal.4th 1188, 1212.)
The record before us “ ‘does not illuminate the basis for the attorney’s challenged acts or omissions . . . .’ ” (People v. Silvey (1997) 58 Cal.App.4th 1320, 1329.) Defense counsel was never asked to explain why he did not object to the prosecutor’s remarks. Furthermore, “ ‘ “[a]n attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel” [citation].’ [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 609-610; see People v. Jones (2003) 29 Cal.4th 1229, 1254 [“ ‘ “[T]here is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ ” ’ ”]; People v. Riel (2000) 22 Cal.4th 1153, 1185 [“ ‘Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. . . . A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ ”].) Accordingly, we reject defendant’s claim.
IV. There was no cumulative error.
“[A] series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) “A claim of cumulative error is in essence a due process claim . . . .” (People v. Rivas (2013) 214 Cal.App.4th 1410, 1436.) “ ‘The “litmus test” for cumulative error “is whether defendant received due process and a fair trial.” ’ [Citation.]” (Ibid.) “[T]he reviewing court must ‘review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence.’ [Citation.]” (People v. Williams (2009) 170 Cal.App.4th 587, 646.)
“Having determined that no error occurred . . . , we conclude that this contention lacks merit . . . .” (People v. Heard (2003) 31 Cal.4th 946, 982.)
DISPOSITION
The judgment is affirmed.



DETJEN, Acting P.J.
WE CONCUR:



PEÑA, J.



MEEHAN, J.