P. v. McCray

Filed 1/22/10 P. v. McCray 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge. Affirmed.

Susanne C. Washington, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant, Obbie McCray, guilty of first degree burglary. (Pen. Code, 459, 460.)^[1] The jury found true an allegation that a person who was not defendants accomplice was present in the residence during the burglary. ( 667.5, subd. (c)(21).) The trial court sentenced defendant to state prison for a term of four years. Defendant contends that his conviction and associated enhancement must be reversed due to a variety of alleged misconduct on the part of the prosecutor. Alternatively, if defendant waived any of his arguments concerning prosecutorial misconduct, by failing to object at the trial court, then defendant contends he was denied effective assistance of counsel. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

In order to fully understand defendants misconduct claims, it is important to be aware of both the prosecution and defense cases. Accordingly, we present both sides versions of the events.

A. Prosecutions Case

We begin by presenting the Peoples case. In March 2006, the victim lived in an apartment in Riverside, with three housemates. On March 28, 2006, when the victim arrived home from work, two men were walking past her apartment. The two men were tall, slender, and African-American. The victim exchanged hellos with the men, and spoke to them for approximately three minutes. One of the men asked the victim for a drink of water, and the victim invited them inside for water. The two men entered the victims apartment. The victim gave one of the men a bottle of water. The two men stayed and spoke to the victim for approximately five or ten minutes, and then the men left.

Around 3:00 a.m., on March 29, 2006, the victim awoke and saw a shadowy figure inside her apartment. The victim was by herself in her apartment, because her housemates had left for spring break. The victim ignored the shadow and fell asleep. After some time passed, the victim awoke again. The victim saw two shadowy figures standing near her bed, and heard two men mumbling. The victim continued to lie in her bed and pretended to be asleep. At one point, one of the men flicked a lighter; the victim saw that the men were tall and slim, and she believed their voices sounded African-American. The two men left the victims room, but they returned several times. At one point, the victim heard one of the men crawling on the floor near her bed.

The victim lay awake in bed until the sun rose. When the victim exited her bedroom, she saw that a housemates bedroom door was open, and she saw a broken window. The victim called the police. The victim reported several items stolen, including her camera, a housemates computer, and money. Several of the victims belongings had been moved around the apartment. A small brown chest/jewelry box, which was usually under the victims bed, was in her housemates bedroom. The victims plastic three-drawer unit, which had been in the victims bedroom, was in her housemates bathroom.

Defendants fingerprints were found on the victims plastic drawer unit and the jewelry box. Defendants fingerprint was also found on the exterior of the southwest window of the apartmentthe northwest window was the window that was broken. Riverside City Police Detective Kevin Townsend showed the victim a photograph of defendant, and the victim identified defendant as a person that may have been at the residence.

B. Defenses Case

We now present the defenses case. In March 2006, defendant was staying at John Stallworths apartment, which was in the same apartment complex where the victim resided. Justin Hicks, Yuseff Smith, and a man named June were also staying at Stallworths apartment. The victim drove defendant, Hicks, and Smith to a store and restaurant. When they returned to the apartment complex, the victim, defendant, Hicks, Smith, and June went to the victims apartment. The victim left the living room area to get water, and defendant saw Smith take the victims wallet and leave the apartment. The victim noticed that her wallet was missing, and defendant told her that he would retrieve it for her.

Defendant, June, and the victim then went to the victims bank, so that she would have cash to pay her rent. Defendant recalled that the three then went to the food court at the Tyler Mall, and the victim bought defendant and June food. When the three returned to the apartment complex, defendant went back to Stallworths apartment and June went to visit the apartment of two women, Lauren and April. Defendant confronted Smith about stealing the victims wallet, but Smith said that he had already returned the wallet to the victims apartment.

During the night, Hicks and June came into Stallworths apartment, approximately three times, with various items, including the plastic drawer unit and a computer. Defendant said to Hicks and June, Man, get this shit up out of here. Defendant stated that he touched some of the victims items, such as the plastic drawer unit, when he was telling Hicks and June to take the items away. Defendant knew the items came from the victims apartment because he overheard Hicks and June discussing the burglary throughout the day. Defendant testified that his conversation with Hicks and June made the woman who was visiting defendant feel uncomfortable, so defendant walked the woman to her car. After walking to the womans car, defendant noticed that the victims southwest apartment window was open, so he closed it, which explains why defendants fingerprints were on the window.

When defendant returned to Stallworths apartment, he again said to Hicks and June, Get this up out of here. Hicks and June left the apartment with all of the stolen items. Defendant did not know how the plastic drawer unit was returned to the victims apartment.

DISCUSSION

A. Prosecutorial Misconduct

Defendant contends that the prosecutor committed prejudicial misconduct by (1) relying on inadmissible hearsay; (2) referring to facts that were not in evidence; (3) shifting the burden of proof; and (4) arguing that the jury should view the burglary from the victims perspective. We disagree.

The standards governing review of misconduct claims are settled. A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.] (People v. Friend (2009) 47 Cal.4th 1, 29 (Friend).) A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.] (People v. Kennedy (2005) 36 Cal.4th 595, 618.) When a claim of misconduct is based on the prosecutors 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.] (Friend, at p. 29.) To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.] (Kennedy,at pp. 618; see also People v. Dykes (2009) 46 Cal.4th 731, 760.)

The material facts concerning defendants various prosecutorial misconduct arguments are undisputed. Accordingly, we apply the de novo standard of review. (People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389.)

1. Forfeiture

The People contend that defendant forfeited his arguments concerning prosecutorial misconduct by failing to raise objections in the trial court, when objections and admonitions would have cured the alleged harms. Defendant concedes that he did not object to each instance of alleged prosecutorial misconduct; however, defendant asserts that he did not forfeit his claims of prosecutorial conduct because (1) he objected to some of the alleged instances of misconduct; (2) he could not request admonitions because the trial court overruled his objections; (3) in one instance, the trial court delivered an admonition sua sponte; and (4) an objection and/or admonition would not have cured the harm caused by the misconduct.

For the sake of judicial efficiency, we will address the merits of defendants prosecutorial misconduct contentions. (People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) By addressing the merits, we will spare the reader lengthy analyses of whether (1) defendant forfeited his contentions, and (2) received ineffective assistance of counsel. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179.) We address defendants claims of prosecutorial misconduct in sequence.

2. Hearsay

a) Facts

When the prosecutor was cross-examining defendant, the following exchange took place:

[Prosecutor:] And its also your testimony that they were planning the burglary later, not you?

[Defendant:] Yes, they were talking about it. I was listening. I never did once comment on it or anything, nor did I say, Dont do it. [] I dont even know them that good to just be like, Hey you all, dont do it. [] Thats exactly why I parted and went my separate way.

[Prosecutor:] Would you be shocked to learn that Mr. Smith said it was you that was planning that burglary?

[Defendant:] Yeah, I knew that already. I read the police report. I knew that. Im not shocked. I knew that.

During the prosecutions closing argument, the following comments were made:

[Prosecutor:] If you remember, Mr. Smith said it was [defendant. Defendant]s pointing to Mr. Smith. We have got a bunch of people pointing.

[Defense attorney:] Objection. Facts not in evidence regarding Mr. Smith.

The Court: Sustained.

[Prosecutor:] What we did hear is that he knew that the other man, Mr. Smith, pointed the finger at him.

[Defense attorney]: That also assumes facts not in evidence about Mr. Smith.

The Court: Ladies and gentlemen, as I mentioned, what the attorneys are going to tell you is what they remember the evidence being. What counts is what you remember the evidence being. If, as a result of the attorneys characterization of the evidence, youre then not sure what the evidence was, you then can consult each others memory. If theres some disagreement, you can consult the court reporter to read back to you the relevant parts of the testimony. [] Go ahead, [prosecutor].

b) Analysis

Defendant contends that the prosecutor committed prejudicial misconduct by introducing inadmissible hearsay evidence.

Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (Evid. Code, 1200, subd. (a).)

During the cross-examination of defendant, the prosecutor referenced Smiths out-of-court statements to attack defendants credibility. Specifically, the prosecutor mentioned Smiths statement to the police to buttress his argument that defendants testimony should be given less weight because defendant knew the evidence against him and created a false story to counter the evidence. In other words, the prosecutor did not refer to Smiths statements in order to prove the truth of the matter stated, rather, the statements were used to support the argument that defendant was lying. The prosecutors closing argument reference to Smiths statement was made for the same reasonto illustrate that defendants testimony was false, because defendant was aware of the evidence against him, and he prepared a story to counter that evidence. Consequently, the prosecutor did not commit misconduct by introducing inadmissible hearsay, because the out-of-court statement was not offered for the truth of the matter asserted.

Next, we address the pertinent question: whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (Friend, supra, 47 Cal.4th at p. 29.) We conclude that it is not reasonably likely that the jury construed or applied the complained-of remarks in an objectionable manner, because the trial court thoroughly admonished the jury about the prosecutors remarks, and we presume that the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)

Defendant argues that the prosecutors references to hearsay statements violated defendants constitutional right to confront witnesses against him. Defendant relies on People v. Blackington (1985) 167 Cal.App.3d 1216 (Blackington) to support his position. In Blackington, the defendant asserted that the prosecutor committed misconduct by reading from a prior out-of-court statement made by [a codefendant] while the prosecutor was cross-examining [the] defendant. (Id. at p. 1219.) The prosecutor used the codefendants out-of-court statements when asking the defendant whether he had made certain remarks to the codefendant, which tended to discredit the defendants self-defense theory. (Id. at p. 1220.)

The reviewing court found that the prosecutors questions went to the critical issue in the case, i.e. the self-defense theory; that the prosecutor reminded the jury of the statements during closing arguments; and that the defendant was denied his right to confront his codefendant, because his codefendant asserted his privilege not to testify. (Blackington, supra, 167 Cal.App.3d at p. 1223.) On appeal, the People argued that the jury likely did not misapply the disputed statements, because the jury returned a second degree murder conviction, rather than a conviction that reflected the defendant premeditated the murder. (Ibid.) The reviewing court disagreed because the prosecutors insinuations also suggested an intentional and therefore malicious killing rather than voluntary manslaughter. (Ibid.) Therefore, the reviewing court reversed the defendants conviction. (Id. at p. 1224.)

Defendant asserts that the instant case is similar to Blackington because the evidence against defendant was weak. Defendant argues that Smiths out-of-court statement was highly prejudicial, especially because Smith was a coparticipant in the burglary. Due to the extreme prejudice, defendant argues that the trial courts admonishment could not have cured the damage caused by the prosecutors misconduct.

We are not persuaded by defendants argument. The record does not reflect that the jury likely applied or construed the out-of-court statements in an objectionable way. In Blackington, the reviewing court had reason to believe that the jury misapplied or misconstrued the codefendants statements. Without delving into a lengthy substantial evidence analysis, we find from the record that sufficient evidence was presented to the jury to support defendants conviction, such as defendants fingerprints, as well as the victims and detectives testimony. Consequently, we disagree with the theory that the prosecutions case was weak, and therefore the jury must have misconstrued or misapplied Mr. Smiths out-of-court statement. In sum, the instant case is distinguishable from Blackington, and therefore we are not persuaded by defendants argument.

3. Facts Not In Evidence

a) Facts

During the cross-examination of Detective Townsend, the following exchange occurred:

[Defense attorney:] Now, you mentioned that other than Mr. Hicks and [defendant], you had the opportunity to speak to other people you suspected in this crime; correct?

[Detective Townsend:] Yes.

[Defense attorney:] And how many other suspects did you speak to?

[Prosecutor:] Objection. Relevance and vague.

The Court: Sustained on the former ground.

[Defense attorney:] Was there another suspect during the course of your investigation?

[Detective Townsend:] Correct.

When defendants trial attorney was delivering his closing argument, he made the following remarks: Now, we also know that [Detective Townsend] interviewed a number of people involved in the case. He interviewed a person that identified himself as June, or Glenn Futch. He interviewed a person name[d] John Stallworth. An[d] individual[s] named Lauran Brown and April Jordan. He arrested Mr. Hicks. These are all individuals he had contact with. These are individuals that were involved in the case. That you heard [defendant] talk about who were also involved at the scene.

As defendants trial attorneys closing argument progressed, he said, As I mentioned before, he^[[2]]mentioned a couple names of people that are involved in the case. He mentioned Yuseff Smith, an individual by the name of June, John Stallworth, a person named April, Lauran Brown. And these are individuals that . . . Detective Townsend all interviewed during the course of his investigation. [] So these arent just some phantom people, just random names. These are actually people that were in and around this area that were involved in some way, some form in these events.

During the prosecutors rebuttal closing argument, the following statements were made:

[Prosecutor:] I also want to take a quick sidetrack on what about these other people, Lauran Brown, and all of this other stuff. First of all, these other people are not suspects. If theres a burglary next to your house

[Defense attorney]: That assumes facts not in evidence.

The Court: Sustained. Rephrase.

[Prosecutor:] He said that a lot of these people are suspects. What do they know? [] We dont know anything about some of these people, and they may not be relevant. (Italics added.)

b) Analysis

Defendant contends that the prosecutors statementthese other people are not suspectsamounted to (1) prosecutorial misconduct, and (2) a violation of defendants constitutional right to confront witnesses against him, because the prosecutor implied that defendant was the only suspect in the case, which contradicted Detective Townsends testimony.

The pertinent rule is: [I]t is misconduct for [a] prosecutor to state facts not in evidence or to imply the existence of evidence known to the prosecutor but not to the jury. (People v. Smith (2003) 30 Cal.4th 581, 617.) Based upon defendants claim of misconduct, we determine whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.] (Friend, supra, 47 Cal.4th at p. 29.)

As a general matter, we may presume that the jury followed the instructions it was given [citation] . . . . (People v. Prince, supra,40 Cal.4th at p. 1295.) The trial court instructed the jury that statements by attorneys during closing arguments are not evidence. The trial court also instructed the jury to disregard questions by the attorneys, if the court sustains an objection to the question. Additionally, the trial court admonished the jury, what the attorneys are going to tell you is what they remember the evidence being. What counts is what you remember the evidence being.

We conclude that it is unlikely that the jury construed or applied the prosecutors remark in an objectionable fashion because (1) the jury was instructed that the prosecutors statements were not evidence; (2) the court sustained defendants objection to the statement; and (3) the court admonished the jury to rely on their own memories of the evidence.

Next, defendant asserts that the prosecutor improperly argued that a window was closed, when the evidence reflected that the window was open. Defendant concludes, with little analysis, that the prosecutors argument concerning the window was misconduct. Defendant has not explained whether there was a reasonable likelihood that the jury construed or applied the complained-of remarks in an objectionable fashion. Accordingly, we find defendants argument unpersuasive, because it is unlikely that the jury misapplied the prosecutors remarks given the trial courts explicit instruction and admonishment.

Defendant cites to People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) to support his position that the prosecutor violated his right to confront witnesses against him when the prosecutor told the jury that the people mentioned during the trial were not suspects, when the prosecutor suggested that none of defendants acquaintances were suspects, and when the prosecutor said that the window was closed at the time of the burglary.

In Herring, the prosecutor argued that he represented the victims, while it was the defense counsels job to tell rapists, murderers, robbers, and child molesters what to say and [that defense counsel] does not want [the jury] to hear the truth. The reviewing court found that the prosecutors argument (1) implied that the prosecutor knew facts not in evidence; (2) violated defendants right to confront witnesses against him; and (3) denied defendant effective assistance of counsel. (Herring, supra, 20 Cal.App.4th at pp. 1076-1077.) The appellate court noted the prosecutors remarks struck at the heart of the case, which turned on the issue of credibility. (Id. at p. 1077.) The appellate court concluded that the jurys inability to reach a verdict on the most serious offense and the jurys questions to the court illustrated the importance of the credibility issue. Consequently, the court reversed the defendants convictions, because it concluded that admonishments could not cure the harm caused by the prosecutors statements. (Ibid.)

We find Herring distinguishable from the instant case for the same reasons that we found Blackington, supra, distinguishable. In Herring, the jury hung as to the top count. In Blackington, the jury acquitted the defendant of the top count, i.e., first degree murder. In the instant case, the jury had the option of convicting defendant of aiding and abetting, rather than burglary; however, the jury returned a verdict for first degree burglary. As noted ante, we decline to engage in a lengthy substantial evidence analysis; however, we are convinced from our review of the record that substantial evidence supported the jurys finding. Consequently, we disagree with defendants theory that the prosecutions case was weak, and therefore, the jury likely misapplied or misconstrued the prosecutors statements.

4. Shifting the Burden of Proof

a) Facts

During the prosecutions rebuttal closing argument, the prosecutor made the following three statements:

First: [J]ust because theres some unanswered questions does not mean that thats reasonable doubt. [] . . . [] Yeah, maybe it would be interesting to maybe see the fire extinguisher [that was allegedly used to break the window], but just because we dont have that, does that mean hes innocent beyond a reasonable doubt? [] No.

Second: I have a job, he has a job. He needs to create reasonable doubt in your minds, so he lists some questions.

Third: If you are going to acquit him, if you are going to believe his story, heres what youre going to have to believe. [] First, youre going to have to believe he just happened to be staying in the same apartment near [the victim]. [] Youve got to believe that [the victim] is lying, or not telling the truth, or blocking out what happened that day. [] . . . [] Next, you have to believe that he only wanted to help [the victim] out when one of his friends stole from her and two other friends plotted to rob or burglarize her. [] Youve got to believe that he was in his apartment with the unknown girl in the bed. . . . [] . . . [] But to believe him and acquit him, youve got to believe more. [] Youve got to believe that after he said, Get this stuff out of here, they took it. They snuck back down the stairs, they snuck into the apartment they just burglarized, and they put it down. (Italics added.)

Immediately following the end of the prosecutions closing argument, the court admonished the jury as follows: Ladies and gentlemen, [the prosecutor] misspoke, Does that mean the defendant is innocent beyond a reasonable doubt? [] The defendant doesnt have to prove that hes innocent beyond a reasonable doubt. Its the prosecution [that] has to prove hes guilty beyond a reasonable doubt. I dont think any of you were confused by that, but just in case you were, just to clarify.

b) Analysis

Defendant contends that during closing arguments, the prosecutor committed misconduct by shifting the burden of proof to the defense. Defendant relies on the three statements listed ante, as evidence of the prosecution shifting the burden of proof to defendant, i.e., that defendant is guilty until proven innocent beyond a reasonable doubt.

As noted ante, [a]s a general matter, we may presume that the jury followed the instructions it was given [citation] . . . . (People v. Prince, supra, 40 Cal.4th at p. 1295.) The trial court instructed the jury: A defendant in a criminal case is presumed to be innocent. This presumption requires the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [] Proof 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. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless, the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty. (CALCRIM No. 220.)

Based upon the foregoing reasonable doubt instruction, the trial courts admonishment that the prosecutor misspoke, and the trial courts reminder of the reasonable doubt standard, we conclude it is not likely that the jury construed or applied the complained-of statements in an objectionable way.

Defendant contends that the prosecutor violated his right to due process by repeatedly misstating the burden of proof. Defendant concedes that the trial court corrected the prosecutors first misstatement; however, defendant contends that the prosecutors two other misstatements were not corrected, and therefore, violated defendants rights. Defendant relies on People v. Garcia (1975) 54 Cal.App.3d 61, 63 (Garcia), which is a second degree murder case, to support his position.

In Garcia, the trial court properly instructed the jury on the reasonable doubt burden of proof; however, the trial court then amplified the instruction with language that was strikingly comparable to the civil case rule of preponderance of [the] evidence. (Garcia, supra, 54 Cal.App.3d at pp. 68-69.) The reviewing court concluded that there was some evidence that [the defendant] had acted with a lack of malice or under heat of passion without sufficient provocation, or under diminished capacity caused by voluntary intoxication. There was also evidence that the defendant might have acted in self-defense or that the defendant was not conscious of the homicidal act. (Id. at p. 70.) The reviewing court presumed that the jury followed the erroneous reasonable doubt amplification language, and therefore, the appellate court could not conclude that the jury applied the correct standard of proof. Consequently, the reviewing court determined that the conviction had to be reversed. (Id. at pp. 70-71.)

The instant case is distinguishable from Garcia because, in the instant case, it was the prosecutor, not the trial court, who misstated the burden of proof. In Garcia, the jury did not have an admonishment to disregard the incorrect instruction; however, in the instant case, the trial court admonished the jury that the prosecutor misspoke and reminded the jurors of the correct standard of proof. Accordingly, we are not persuaded to follow Garcia, because the jury in the instant case was given the correct instructions by the trial court and admonished not to follow the prosecutors misstatement.

5. Victims Perspective

a) Facts

During the prosecutors closing statement, he made the following comments:

There is no question that [the victim] was the victim of a terrible burglary. She was victimized two and a half years ago, yet you can still see and hear the pain that she experiences even today. You can see and hear the violation that the defendant and his friend inflicted upon her. [] You can look at her face. You can see the pain. You could see the tears. You could hear her voice quiver. There is no question that what happened to her was terrible.

[A home is a] place where a person or family creates memories. Thats what a home is. [] That man[defendant]and his friend made [the victims] home a hell and a torture. Thats what he did. Thats why shes so upset. Think about it from her perspective. (Italics added.)

[The victim is] alone. Shes in her bed. Shes sleeping, and its dark. [] What does she see? She sees a couple of shadows. But first shes a little bit afraid, but shes sleepy so she doesnt really know. . . . [] And then, at some point in time . . . , her perceptions take hold, and she realizes that there are two people in her dark room. Two people she didnt invite in there. Two people she didnt know in there. Two people she didnt want in there. Two people that she was afraid of. [] These two people not only entered in her room, they leave. She thinks, Well, maybe Im okay. [] They come back. [] They leave. [] They come back. [] Shes terrified. Theyre crawling around her bed. [] I want you to imagine this for a second. A bed, maybe here to here. This . . . girl was laying in that bed, and the defendant and his accomplice are crawling around that bed, pulling things from under it. Theyre pulling purses and things from her armoire. Theyre looking for something as shes in there.

The prosecutor ended his initial closing argument by saying, Im asking you to hold him guilty. To hold him accountable to what hes unwilling to do. [The victim] deserves justice. People that did that act to her need to be brought accountable.

After the prosecutor finished his initial closing argument, the trial court said to the jury, Ladies and gentlemen, one correction to what [the prosecutor] said. At the outset of his argument, one of the things he said [was] that he invited you to view the evidence from the perspective of the victim . . . . [] Youre to view the evidence in an objective fashion, without allowing any sympathy that you may have either for [the victim] or for the defendant to interfere with your objective evaluation of the strength of the evidence. And in a few sentences later, thats exactly what [the prosecutor] said. [] But his invitation to look at the evidence from the viewpoint of the victim was not an invitation to allow any sympathy you may feel for the victim to get in the way of an objective evaluation.

b) Analysis

Defendant contends the prosecutor committed misconduct by urging the jury to view the evidence from the victims perspective.

As we have noted ante, we may presume that the jury followed the instructions that it was given. In this case, the court admonished the jury not to view the evidence from the victims perspective, and instructed the jury to look at the evidence from an objective viewpoint. Further, the trial court instructed the jury to not let bias, sympathy, prejudice, or public opinion influence [its] decision. (Italics added.) (CALCRIM No. 200.) We have no reason to conclude that the jury disobeyed the trial courts instructions. Accordingly, it is unlikely that the jury construed or applied the complained-of statements in an objectionable way.

Defendant asserts that the prosecutors comments urging the jury to view the evidence from the victims perspective were so pervasive that they could not be cured by the trial courts admonishment. Defendants argument is not convincing because the trial court instructed the jury to be objective; admonished the jury that the prosecutor misspoke; and reminded the jury to look at the evidence from an objective viewpoint. Accordingly, the trial courts instructions on being objective were as pervasive as the prosecutors comments to view the evidence through the victims eyes. Therefore, we are not convinced that it is likely that the jury misconstrued or misapplied the prosecutors statements.

6. Cumulative Error

Defendant contends that the onslaught of prosecutorial misconduct made it increasingly difficult for the jury to remain impartial. In other words, defendant asserts that the cumulative impact of the prosecutorial misconduct caused him to be denied a fair trial. We disagree.

We have concluded ante, that the record does not support a finding that the jury applied or construed the prosecutors statements in an objectionable manner. Accordingly, we reject defendants claim that the cumulative impact of the alleged misconduct resulted in prejudice and deprived him of a fair trial and due process. (See People v. Parson (2008) 44 Cal.4th 332, 368 [reaching a similar conclusion].)

7. Conclusion

We have considered defendants claims of prosecutorial misconduct both singularly and cumulatively and conclude that the prosecutors acts did not so infect[] the trial with unfairness as to make the resulting conviction a denial of due process in violation of the federal Constitution. [Citations.] (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) We reach this conclusion primarily due to the curative instructions and admonishments delivered by the trial court.

Further, in regard to state law, on this record, we cannot conclude that the prosecutor employed methods that qualify as deceptive or reprehensible. (See People v. Wallace, supra, 44 Cal.4th at pp. 1070-1071 [state law standard].) It is clear from the record that the prosecutor misspoke; however, the trial court skillfully cured the prosecutors misstatements. The prosecutor did not quarrel with the trial court, or try to assert that the trial courts instructions were incorrect. In other words, it appears from the record that the prosecutors performance was not appropriate; however, we do not find that it was deceptive or reprehensible.

Additionally, given our conclusions that it is unlikely that the jury applied or construed the complained-of statements in an objectionable manner, we conclude that it is not reasonably probable that a result more favorable to defendant would have been reached absent the alleged misconduct. (See People v. Wallace, supra, 44 Cal.4th at p. 1071 [harmless error standard].)

B. Ineffective Assistance of Counsel

Defendant contends that if this court concludes he forfeited his claims of prosecutorial misconduct by failing to object at the trial court, then he was denied effective assistance of counsel. We have chosen to address the merits of defendants various prosecutorial misconduct contentions. Accordingly, we do not analyze his argument related to ineffective assistance of counsel.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RICHLI

Acting P. J.

/s/ GAUT

J.

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^[1] All further statutory references will be to the Penal Code, unless otherwise indicated.

^[2] It is unclear from the record to whom he is meant to refer, e.g., Detective Townsend, the prosecutor, or defendant.