Filed 8/31/26 P. v. Woodard CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A169741
v. (Contra Costa County
JAMES JENTRELL WOODARD, Super. Ct. No. 011962661)
Defendant and Appellant.
A jury convicted defendant James Woodard of five domestic violence
offenses committed against his girlfriend, Jane Doe (JD), resulting in an
aggregate prison term of nineteen years. On appeal, Woodard raises various
claims of ineffective assistance of counsel, instructional error, and
prosecutorial misconduct. We see no reversible error and will affirm.
I. BACKGROUND
A. Charges
Woodard was charged with domestic violence offenses involving his
live-in partner, JD. In March 2022, the People filed a first amended
information alleging five offenses arising from an incident that occurred on
June 3, 2021: attempted murder (count one, Pen. Code,1 §§ 664, 187,
1 All undesignated statutory citations are to the Penal Code.
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subd. (a)), assault by means likely to produce great bodily injury (count two,
§ 245, subd. (a)(4)), injuring a cohabitant (count three, § 273.5, subd. (a)),
criminal threats (count four, § 422, subd. (a)), and assault with a deadly
weapon (count five, § 245, subd. (a)(1)). The information also alleged a sixth
count of injuring a cohabitant (count six, § 273.5, subd. (a)), based on an
incident occurring on March 29, 2021. Counts one, two, three, and six each
alleged a great bodily injury enhancement (§ 12022.7, subd. (e)).
B. Prosecution Evidence
Woodard and JD were in an “[o]n and off” relationship for
approximately 12 years. The prosecution presented evidence of three
incidents that occurred during their relationship: the first on March 5, 2015;
a second on March 29, 2021; and a third on June 3, 2021. Only the last two
are charged in this case.
1. March 5, 2015 Incident (Uncharged)
JD testified to a violent incident occurring on March 5, 2015 at her
sister-in-law’s apartment. She testified that Woodard accused her of
cheating, saying to her, “Bitch, you think you gunna cheat on me,” and began
hitting her head with a closed fist. Woodard knocked JD to the ground
several times, while continuing to punch her as she laid down in a manner
similar to a fetal position.
When Woodard said he was leaving and JD tried to close the door, he
“bum rushed” the door and resumed hitting her. JD testified that Woodard
struck her head a couple of times against the refrigerator, which was
partially tipped over. JD said she did not fight back in fear of retaliation and
estimated she was hit over fifteen times. She later went to the bathroom and
called the police.
Oakland Police Officer Marcus Moreno spoke with JD at the scene.
The prosecution played a video of that interaction. Moreno testified that JD
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was physically upset and crying, and appeared very nervous, scared, and
wanted to leave. He also observed that her face was swollen. She turned
down medical attention.
2. March 29, 2021 Incident (Charged; Count Six)
JD testified that, on the evening of March 29, 2021, Woodard, again,
accused her of cheating. The argument turned physical when Woodard bit
JD’s right arm, which left a scar, and hit her face, ribs, and legs with a closed
fist—“[h]ard enough to put [her] in the hospital.” JD defended herself by
“swinging back,” but Woodard kicked her in the ribs. She fell to the ground,
and Woodard kicked her in the back as she shielded herself, balling up with
her arms over her face. Woodard kicked her hard in the ribs and back five or
six times over several minutes before he left. JD said she remained scared
and laid “there for a minute to make sure he was gone.”
JD went to her mother’s house that night and noticed bruising on her
face, a black eye, and swelling to her face and arms. She said she was in
significant pain, which she rated a “10.” The next day, she went to the
hospital, where she stayed for three days. She said her pain worsened
overnight, and it “felt like [her] ribs were shiftin[g]” when she coughed. Her
ribs were fractured, and she had difficulty walking due to back pain.
When the police spoke with her at the hospital, JD lied about the
incident. She later testified that she “thought [she] was in love” with
Woodard and continued the relationship because she thought they could
“move forward” and work things out.
3. June 3, 2021 (Charged; Counts One Through Five)
JD testified to a third incident occurring on June 3, 2021 in an
apartment she shared with Woodard. JD was sleeping on the floor, when
Woodard said to her, “Bitch, you think you leave me? I’m gunna killing you
. . . and I’m gunna kill myself because I have nothing to live for.” He then
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jumped on top of her, pulled the covers over her head, and strangled her with
both the covers and his hands. JD could not breathe and felt her life “was
over.” She lost consciousness.
JD further testified that when she regained consciousness, Woodard
strangled her again with the comforters, smothering her face while punching
her ribs and her head around five to ten times. He then straddled her as she
lay on her back, said “Bitch, you gunna die,” and strangled her with the
comforter for over a minute. He also stomped on her back six to ten times
and, after strangling her with the comforter, choked her with his bare hands
for about fifteen seconds. JD testified that she yelled as she was being
strangled, “Lord Jesus, I don’t want to die.” Woodard responded, “Bitch, I’m
gunna kill you” as he continued strangling her.
At some point, JD went to the kitchen. Woodard followed and held a
four-to-five-inch steak knife to her throat and said, “Bitch, I kill ya right
now.” A further altercation followed in the bedroom, where Woodard
continuously punched JD in the head, ribs, and chest, and choked her.
After the incident, JD walked to a nearby 7-Eleven store and called
911. Officer Jenna Kolmeister responded; she testified that she observed
injuries on JD, including cuts on her neck, scratches on her upper back, a
bleeding cut on her chin, swelling to her right cheek, eye, and the left side of
her face, and bruising on her breasts and back, including bruises on her back
that were “a couple or a few inches” in size. She photographed these injuries,
and the photos were shown to the jury. Kolmeister also noted that she
collected two blood-stained comforters and checked JD’s sweatpants for
evidence, which had blood on the waistband.
Kolmeister further testified that when she spoke to JD, she “seemed
very sad and scared.” JD said that she feared Woodard would kill her and
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was “afraid for her children.” JD also mentioned that during the altercation,
Woodard told JD he had nothing to live for because his mother had died.
JD testified that she had injuries to her arms, face, legs, and finger. A
physician who analyzed JD’s CT scan testified that the images showed mild
soft tissue swelling of her face and polypoidal mucosal thickening—irritation
of the lining at the base of the sinuses—but no displaced fractures.
Woodard was arrested on June 6, 2021.
4. Other Evidence: Jail Calls
At trial, the prosecution played the jury several recorded calls Woodard
made from jail between June 2021 to October 2021. In one call, Woodard
acknowledged he did “not know how to . . . manage [his] anger,” adding that
“[a]nger management and shit . . . probably won’t be a bad idea for [him].” In
another, he said, “I just flipped out, you know what I’m saying? You know
how you just get so fed up you just, ‘zam!’, snap. That’s what happen, shit
like that happen when people push you like that.” He continued, “I’m really
a ticking time bomb anyway so don’t fuck with me like that, don’t push me
like that.” In a third call, Woodard said, “Well, the girls, they like made me
go crazy like, I, you know? I don’t know, I be like, I don’t even remember
everything because I think, like, I be known to snappin’.”
The prosecution also played another call he had with JD, where she
told him, “Hey, let me tell you, just imagine if I was pregnant?” [¶] . . . [¶]
“Uh, pregnant and you did all that.” Woodard replied, “I know. I thought
about that. When they said they had me charged with attempted murder I
started thinking maybe she was pregnant and—and had a miscarriage. You
know what I’m sayin’?”
5. Other Evidence: Expert Testimony
The prosecution also called on Dr. Susan Wilde, a licensed clinical
forensic psychologist, to testify as an expert in the area of domestic violence
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and intimate partner violence and its effects. Wilde described how domestic
violence survivors might behave and dispelled common myths, including the
belief that victims can easily leave. She also described a cycle of violence
commonly seen with survivors, beginning with physical abuse and
progressing to a “honeymoon period,” during which victims will make
excuses for the abuser, before tension builds again and the cycle repeats
itself.
Wilde also testified that victims commonly minimize the abuse they
have endured, primarily out of shame or embarrassment, and that it is
“[e]xtremely common” for victims to lie to police. She testified that the
shame victims experience may depend on the person’s culture: African
American women, for example, “do not like to think of themselves as victims
at all,” and “think of themselves as strong, as the center of their families,
and so it’s much harder for them to even call the police or to admit that this
terrible thing happened to them.”
C. Defense Evidence
The defense called two witnesses, Acacia Newman and Christina
Johnson-Woodard, both of whom had romantic relationships with Woodard.
Newman testified that Woodard never hit her. She also described an
incident in February 2019, in which she followed Woodard to a liquor store,
and JD, observing the two of them together, shattered the rear window of
Woodard’s rental car. At trial, JD confirmed Newman’s account of the
incident and said she broke the window of Woodard’s rental car with a belt
buckle from her dress because she believed that Woodard was trying to get
rid of her to hang out with Newman.
Johnson-Woodard likewise testified that Woodard never hit her. She
also testified that JD had texted and called her, and that near the end of
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2020, JD told her she would be “looking down” on her, a statement which
Johnson-Woodard understood as a threat.
D. Verdict and Sentence
The jury found Woodard guilty of attempted murder (count one),
assault by means likely to produce great bodily injury (count two), two
counts of injuring a cohabitant (counts three and six), and criminal threats
(count four). As to count five, assault with a deadly weapon, the jury found
Woodard not guilty but convicted him of the lesser offense of simple assault
(§ 240).
The jury also found true two aggravating circumstances: that
Woodard “used great violence, the threat of great bodily harm or acted in a
manner indicating a high degree of cruelty, viciousness or callousness”; and
that JD was particularly vulnerable. The jury found not true that Woodard
took advantage of a position of trust or confidence.
After trial, Woodard moved to relieve his retained counsel. The motion
was granted, and new counsel was appointed to represent him.
New counsel filed two motions. First, counsel moved for a new trial,
arguing that trial counsel was ineffective for altering the burden of proof at
the start of trial and for failing to call Woodard to the stand to testify, among
other reasons. Trial counsel submitted a declaration in response to explain
his reasons for the challenged conduct. After reviewing these materials, the
court denied the motion. The defense also moved to dismiss Woodard’s prior
strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th
497. The trial court denied this motion as well.
The trial court imposed a total term of 19 years. The sentence was
comprised of the middle term of seven years on count one, doubled to 14
years in light of the prior strike, with an additional three years for the
enhancement under section 12022.7, subdivision (a); the middle three-year
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terms on counts two and three and the middle term of two years on count
four, each doubled and stayed under section 654; no time on count five; and
two years on count six to run consecutive to count one.
This timely appeal from the judgment of conviction followed.
II. DISCUSSION
Woodard first contends his trial counsel was ineffective both for
assuming part of the prosecution’s burden of proof during his opening
statement and for making “sweeping” promises to prove JD’s claims were
“ ‘absolutely untrue,’ ” promises he argues counsel failed to fulfill. The
People disagree that there was any burden-shifting, while responding
primarily that counsel’s performance was not deficient because the record
shows he had a tactical reason for his promises and made a genuine effort to
fulfill them. The People contend there was no prejudice in any event, given
that Woodard’s counsel, the prosecution, and the court via its jury
instructions repeatedly affirmed the prosecution had the sole burden to prove
guilt beyond a reasonable doubt. We agree with the People that, to the
extent there was burden-shifting, it was not prejudicial; we therefore reject
the burden-shifting claim without addressing whether there was deficient
performance. And as to the promise-making aspect of defendant’s ineffective
assistance argument, we conclude this conduct by his counsel was neither
deficient nor prejudicial.
Second, Woodard contends his trial counsel was ineffective for failing
to object to expert testimony that not only included racial stereotypes in
violation of the Racial Justice Act (RJA) (Stats. 2020, ch. 317, § 1), but that
also violated Evidence Code section 1107 (admissibility of expert evidence
regarding intimate partner battering). Without conceding error, the People
respond that because the record sheds no light on why counsel did not object,
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and because Woodard failed to show that no satisfactory explanation could
exist, this claim must be rejected on direct appeal. We agree with the People
and conclude this line of argument is better suited for habeas corpus review.
If there is a basis to do so—something we do not address—this claim can be
raised on collateral review.
Woodard next contends the trial court’s instructions under CALCRIM
Nos. 852A and 852B reduced the prosecution’s burden of proof on the
attempted murder charge and permitted an unreasonable inference that
violated his due process rights. The People respond that the instructions
mirror those upheld in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford)
and contain the same safeguards that the court found sufficient to prevent
the jury from applying a lowered standard of proof. We agree, and
additionally conclude the inference the instructions permit—that the jury
may infer intent to kill from Woodard’s prior conduct—was rational on this
record. We also conclude Woodard’s related ineffective assistance of counsel
claim for failure to object lacks merit because the instructions were not
erroneous; counsel therefore had no valid basis to object and his failure to do
so was neither deficient nor prejudicial.
Finally, Woodard contends the prosecutor committed misconduct by
relying on the expert’s testimony about racial stereotypes in closing
argument, by misstating the law on the burden of proof as to one of the
charged incidents, and by misstating the law governing relevant evidence.
The People respond that each claim is forfeited, since Woodard did not object
to any of the purported misconduct at trial nor request an admonition, and
since he has not shown his substantial rights were affected. We agree and
conclude these claims have been forfeited. Woodard argues in the alternative
we should conclude counsel was ineffective for failing to object below. We
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reject this alternative contention as well. Because the record does not reveal
why counsel chose not to object, this issue too is better suited for habeas
review.
Having summarized our conclusions, we now set forth our analysis in
greater detail.
A. Woodard’s Ineffective Assistance of Counsel Claims
Woodard claims he received ineffective assistance of counsel in that his
counsel (1) failed to object to an expert’s reliance on racial stereotypes; (2)
failed to object to an expert’s testimony profiling Woodard as an abuser and
JD as a victim; and (3) shifted the prosecutorial burden of proof to the
defense by making promises in opening statement about what he would
prove at trial, and also broke those promises.
1. Woodard’s RJA and Profiling Claims
The Sixth Amendment to the United States Constitution and article I,
Section 15 of the California Constitution grant criminal defendants the right
to effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171,
215 (Ledesma).) A defendant may obtain reversal of his conviction based on
ineffective assistance by showing that counsel’s performance was deficient
and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland); Ledesma, at p. 216.) The defendant bears the burden of
establishing both elements. (Strickland, at p. 697; Ledesma, at p. 217.)
Since such claims involve mixed questions of fact and law, they are subject to
de novo review on appeal. (In re Alcox (2006) 137 Cal.App.4th 657, 664–665
(Alcox).)
Courts recognize, however, that it is often difficult to evaluate
counsel’s performance when ineffective assistance claims are raised on direct
appeal, since the record at that stage typically only tells what happened in
the real-time atmosphere of trial. “[U]nder the sometimes imperceptible
10
influence of the failure of counsel’s efforts to obtain a successful result, it is
often practically difficult for judges to view and assess the reasonableness of
counsel’s acts or omissions, as they must, under the circumstances as they
stood at the time that counsel acted or failed to act.” (Ledesma, supra,
43 Cal.3d at p. 216.) A fair assessment of attorney performance therefore
requires “that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from the counsel’s perspective at the time.”
(Strickland, supra, 466 U.S. at p. 689.)
For this reason, and as the People note, when “ ‘the record on appeal
sheds no light on why counsel acted or failed to act in the manner
challenged,’ ” a claim of ineffective assistance must be rejected on direct
appeal unless counsel was asked for an explanation and failed to provide one,
or unless no satisfactory explanation could exist. (People v. Wilson (1992)
3 Cal.4th 926, 936.) In such circumstances, the claim is more appropriately
raised in a habeas corpus proceeding, where trial counsel is provided an
opportunity to explain his conduct. (Ibid.)
Here, we find that two of Woodard’s ineffective assistance claims—
counsel’s failure to file an RJA motion and failure to object to the alleged
profiling testimony—lack a sufficient record for us to address on appeal.
Trial counsel did not explain why he declined to file an RJA motion or object
to the alleged profiling testimony. Moreover, satisfactory explanations may
exist for both omissions.
As the People suggest, counsel may have reasonably concluded that
filing an RJA motion would have been futile. Given that RJA targets
testimony that “exhibit[s] bias or animus towards the defendant” (§ 745,
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subd. (a)(1) & (2), italics added)2, it is plausible that counsel, interpreting
those words, may have concluded that there were not sufficient grounds to
file an RJA motion, because the racial generalization was used to describe
JD’s circumstances and not Woodard’s.3 (See People v. Singh (2024)
103 Cal.App.5th 76, 117 [noting that failure to file RJA motion counsel could
have believed to lack merit and therefore be futile did not substantially
impair the defendant’s right to effective assistance of counsel].)
As the People further argue, counsel may well have had a strategic
basis for not objecting to the testimony. In his concluding statement, counsel
used the expert’s racial stereotyping and told the jury that, because JD
“comes from a different culture,” she was “not afraid of Mr. Woodard” to
counter the charge on criminal threats. (See People v. Singh, supra,
103 Cal.App.5th at pp. 117–118 [finding defense counsel’s failure to object
may have been strategic where the challenged testimony could help the
defense case].)
As to counsel’s failure to object to the profiling testimony, the People
identify strategic reasons for counsel’s silence: to avoid appearing disruptive
to the jury or to avoid drawing further attention to the testimony. Other
California courts have found similar conduct not deficient, where a concern
for jury perception could supply a strategic justification. (See, e.g., People v.
2 Section 745, the central provision of the RJA (People v. Bankston
(2026) 19 Cal.5th 786, 855), became effective on January 1, 2021 and has
been amended multiple times since Woodard’s trial in 2022. (Stats. 2020,
ch. 317, § 3.5; Stats. 2022, ch. 739, § 2; Stats. 2023, ch. 311, § 6; Stats. 2023,
ch. 464, § 1; Stats. 2024, ch. 495, § 4; Stats. 2025, ch. 721 § 2; Stats. 2025,
ch. 784, § 2.5.) It continues to include the provisions we cite in this opinion.
For simplicity’s sake, we cite to the current version of the RJA.
3 Note, here, we decline to address whether counsel’s reasoning was
correct and whether an RJA motion would have been successful.
12
Seumanu (2015) 61 Cal.4th 1293, 1312–1313 [finding it may have been
strategic for counsel not to object to evidence on hearsay grounds, so as to
avoid highlighting the evidence to the jury].) Because counsel was never
asked to explain his conduct on either issue, and because plausible
explanations exist for both, we reject the claims here on direct appeal,
without prejudice to Woodard pursuing them in a habeas proceeding
instead.4
We treat Woodard’s claims of burden-shifting and unfulfilled promises
differently, however. As Woodard notes, the record here is sufficient for our
review: the challenged conduct is counsel’s own statement, preserved
verbatim; and the trial court ruled on the merits for the issues raised here in
the course of considering Woodard’s motion for a new trial, for which trial
counsel submitted a declaration explaining his rationale behind his behavior.
There is no gap in the record requiring deferral to habeas. We therefore will
examine Woodard’s burden-shifting and broken promises claims here under
the Strickland/Ledesma test.
Under the first prong of the Strickland/Ledesma test, a counsel’s
performance is deficient when it falls below an “objective standard of
reasonableness” under prevailing professional norms. (Strickland, supra,
466 U.S. at pp. 687–688.) Given the myriad ways ineffective assistance
issues may arise, and to avoid encroaching on “the independence of defense
counsel,” courts must be “highly deferential” and “indulge a strong
presumption that [counsel’s] conduct falls within the wide range of
4 For these same reasons, we decline to resolve Woodard’s claim, which
we discuss further post, that the prosecutor’s reference to the expert’s
testimony in closing argument was prosecutorial misconduct and that, if that
claim is forfeited, that he did not receive ineffective assistance of counsel by
his trial counsel’s failure to object to these remarks.
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reasonable professional assistance.” (Id. at pp. 689–690.) Accordingly,
defendants must overcome the presumption that the challenged action
“ ‘might be considered sound trial strategy.’ ” (Id. at p. 689.)
Under the second prong, performance is prejudicial if there is a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Strickland, supra,
466 U.S. at p. 694.) “Prejudice is not presumed” (Alcox, supra,
137 Cal.App.4th at p. 665), but, generally, “must be affirmatively proved.”
(Ledesma, supra, 43 Cal.3d at p. 217.) Further, defendants must establish
“ ‘ “prejudice as a ‘demonstrable reality’ ” ’ ” and cannot simply speculate as
to the effect of counsel’s errors. (Alcox, at p. 670.) On appeal, we review all
the evidence, including unaffected findings, to determine whether the
defendant has met that burden in demonstrating that counsel’s errors were
“so serious” as to deprive them of a fair trial whose result is reliable.
(Strickland, supra, 466 U.S. at pp. 687, 696.)
2. Burden-Shifting: Strand One
Woodard first argues that trial counsel was ineffective for shifting part
of the burden of proof to the defense. He faults counsel’s opening statement,
where he said: “[W]e intend to forego one of the most sacrosanct al [sic]
Constitutional protections there are under our law, and that is the
prosecution be forced to bear 100% of the burden of proof. We intend to take
some of that burden on ourselves and prove some things to you. Why? [¶]
Because it’s the only way you’re going to get the whole truth in this case. It’s
the only way you’re going to get the whole story.”
Woodard asserts that by making these statements, trial counsel
functionally assumed part of the prosecution’s burden, creating a “hybrid
system” where the defense was obligated to “ ‘prove some things’ ” to the
jury. He argues counsel’s conduct here constitutes per se deficient
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performance, because no competent defense attorney would assume a higher
burden of proof. He further argues counsel’s conduct was prejudicial in light
of a “weak” prosecution case. Thus, under both Strickland prongs, he claims
counsel was ineffective.
The People respond that counsel’s conduct was tactically sound. His
statements were meant to convey confidence in the defense’s case and
persuade the jury that the defense could prove facts exonerating Woodard,
strengthening his position in the jury’s eyes. Woodard’s trial counsel affirms
this explanation in his declaration submitted regarding Woodard’s new trial
motion, where he stated that he intended his statement to “take some of [the
prosecutor’s] burden” so that the jury would perceive him “as a purveyor of
truth and not as one who obfuscates it.” The People further argue that trial
counsel’s statements were not prejudicial because counsel never actually
assumed the prosecution’s burden. They correctly note that trial counsel, the
prosecutor, and the court, all repeatedly told the jury that the burden of
proof rested with the prosecution alone.
Even assuming—solely for the sake of argument—that Woodard’s trial
counsel’s performance here was deficient, the People have the better of the
argument regarding prejudice. As they point out, both the court and the
prosecution repeatedly affirmed the correct burden of proof. At the
beginning of the trial and in written instructions provided to the jury, the
court said (in nearly the same terms each time) that “[a] defendant in a
criminal case is presumed to be innocent. This presumption requires that
the People prove a defendant guilty beyond a reasonable doubt.” The court
further instructed the jury that it was bound to follow the law as the court
explained it, even where the jury instructions conflicted with what the
attorneys said. The prosecutor likewise stated the correct standard in both
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her opening and closing statements. In closing, for example, she stated:
“Evidence that proves beyond a reasonable doubt. Now that is my burden.
. . . [¶] It’s important that you hold me to my standard of proof of beyond a
reasonable doubt.”
Woodard does not address the frequency at which the correct standard
was communicated to the jury. Even assuming arguendo that the language
counsel used in opening statement may have been interpreted by the jury to
signal that the defense was assuming a higher burden than it needed to
accept, Woodard fails to address the trial court’s explicit instruction that the
prosecution bears the burden of proof and that the jury was required to
follow the court’s instruction in the event the defense counsel made a
conflicting statement. Nor does he point to anything in the record showing
the jury disregarded the court’s command and actually held Woodard to a
burden of proof. His argument is at best speculative and fails to show
“ ‘ “prejudice as a ‘demonstrable reality.’ ” ’ ” (Alcox, supra, 137 Cal.App.4th
at p. 670.)
We acknowledge the issue presented here is unusual, given the express
and unmistakable terms in which counsel apparently abandoned perhaps the
most basic protection our law grants to a criminal defendant—that the
prosecution carries the burden of proof on all elements of a charged offense.
But it is equally basic that statements of counsel are not the law, and given
the numerous reminders to the jury about what the law actually is—that the
prosecution bears the burden of proof beyond a reasonable doubt on the
fundamental issue of guilt—we see no prejudice. The prosecution itself
conceded it bore that burden of proving guilt beyond a reasonable doubt on
all elements of the charged offenses here, and most importantly, the jury
instructions (both oral and written) confirmed this critical point.
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While we recognize the potential gravity of the burden of proof issue
Woodard raises and we do not necessarily condone the kind of argument his
counsel made—even if made only to demonstrate confidence in the defense
case in a dramatic way—we are also unconvinced on this record that the
outcome would have been any different if counsel had not made that
argument. Stated most simply, we are unpersuaded that, under the
governing “ ‘ “ ‘demonstrable reality’ ” ’ ” standard (Alcox, supra,
137 Cal.App.4th at p. 670), the jury was confused or did not follow the
instructions it was given. Contrary to Woodard’s contentions, this was not a
close case on any of the charges and there are none of the telltale signs that
it was (e.g., lengthy jury deliberations, a split verdict, or a reported jury
impasse) or that the jury was confused (e.g., questions raised via note to the
judge during deliberations).
None of the cases Woodard cites alters our prejudice analysis. People
v. Smith (2013) 212 Cal.App.4th 1394 is distinguishable. There, counsel
agreed with opposing counsel and the court that it was appropriate to
proceed under a statute that placed the burden of proof on his client, a
sexually violent offender who petitioned for his release from an involuntary
commitment, and the court’s denial of relief expressly rested on the
petitioner’s “ ‘[failure] to carry his burden of proof.’ ” (People v. Smith, supra,
212 Cal.App.4th at pp. 1405–1407.) This court concluded that that statute
did not apply, and concluded the petitioner’s counsel had rendered ineffective
assistance by failing to request a hearing under a different statute that did,
under which the State bore the burden of proof. (Id. at pp. 1397, 1407–1408.)
Those circumstances are far different from those here. Woodard’s counsel,
the prosecutor, and the court did not proceed under the wrong burden of
proof. Given their agreement and numerous affirmations that the
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prosecution bore the full burden, Woodard has not shown that the jury
instead fixated on counsel’s brief opening statement remarks to “take some of
[the prosecutorial] burden.”
Spicer v. State (2009) 22 So.3d 706 and State v. Martin (1987) 37 Ohio
App.3d 213 (Martin), also cited by Woodard, do not support his burden-
shifting argument. As the People note, both are out-of-state decisions and
are not binding on this court. (Episcopal Church Cases (2009) 45 Cal.4th
467, 490.) More importantly, both are factually distinguishable on the
question of prejudice. In Spicer, deficient performance was found to be
prejudicial where counsel repeatedly and mistakenly told the jury in closing
argument that the defense bore the burden of proving self-defense—an error
compounded by an outdated jury instruction, read to the jury, that
erroneously stated that self-defense had to be proven beyond a reasonable
doubt. (Spicer, at pp. 707–708.) By contrast, here, counsel’s burden-shifting
statements appeared only in his opening statement; his closing statement
affirmed at length, in detailed comments spanning three pages of trial
transcript, that the burden rested entirely on the prosecution. The jury
instructions drove that point home.
Martin is likewise distinguishable. The prejudice finding there was
based on a combination of Martin-specific factors, including inconsistencies
between witnesses’ testimony and the admission of “substantial”
inadmissible testimony of other acts by the defendant, that extended beyond
counsel’s misstatement of the burden of proof. (State v. Martin, supra,
37 Ohio App.3d at pp. 214–215.) Given these factual differences, Martin’s
prejudice analysis is not relevant here.
Finally, Woodard argues that counsel’s burden-shifting statements
(and other purported deficient performances) were particularly prejudicial in
18
light of what he characterizes as a weak prosecution case. He points to
specific record evidence in support: for example, a CT scan showing soft
tissue swelling but no bone fractures, inconsistencies in JD’s account, and a
jail call in which Woodard stated, “When they said they had me charged with
attempted murder, I thought maybe she was pregnant and had a
miscarriage,” which he argues shows he did not believe his conduct rose to
the level of attempted murder.
But there is other evidence, unaddressed by Woodard, indicating to the
contrary that the prosecution’s case was strong. For example, the jury saw
numerous photographs of JD’s injuries, showing dark bruising and scratches
to different parts of her body. They heard a reporting officer corroborating
the photographic evidence. They heard a forensic psychologist provide an
explanation for JD’s inconsistent testimony. They heard evidence that
Woodard had previously attacked JD. And significantly, they heard
Woodard’s jail calls, where he admitted to having issues with “[a]nger
management,” that he was “a ticking time bomb,” and with women, he “be
known to snappin’.” In light of this and other evidence, Woodard fails to
show it was reasonably probable that the jury considered the prosecution’s
case to be so weak that it was only swayed of Woodard’s guilt as a result of
his counsel’s purported burden-shifting.
Because Woodard has failed to show trial counsel’s actions were
prejudicial, we reject his ineffective assistance claim and see no need to
address whether his performance was also deficient. (See Strickland, supra,
466 U.S. at p. 697.)
3. Burden-Shifting: Strand Two
In a closely related thread of Woodard’s burden-shifting argument, he
argues that his trial counsel’s conduct in making and later breaking his
opening statement promises constituted deficient performance and was
19
prejudicial. His argument focuses on this part of his counsel’s opening
statement: “. . . I want to make clear that an opening statement in a
criminal case is not like a politician’s speech. A politician can promise you
the sun, the stars and the moon. He doesn’t have to make good on that
promise until and unless you cast your vote in his favor—not so with an
opening statement. [¶] If I make promises during this opening statement
that I don’t keep when it comes time to deliberate, you’ll remember it, and
you’ll take it out on me and [b]y extension o[n] Mr. Woodard. [¶] My hope is
that if I do make promises I’m about to make—if I can prove the things that I
tell you I can prove that you’ll take [that] into consideration as well.
“So what is it that we, the accused, intend to prove? [¶] Three things:
First thing I intend to prove is that almost every facet of the story that she
tells [about] June 3rd, 2021, is false. [¶] I intend to systematically dismantle
almost every facet of that story. [¶] Two; I intend to prove that it is [JD] and
not James Woodard, who is the controlling, possessive and jealous one in the
relationship. [¶] And three: I intend to prove what that argument[] was
truly about on June 3rd, 2021. And who it was that initiated [the conflict]
physically.”
Woodard asserts counsel fulfilled none of these promises—he never
proved that “ ‘almost every facet’ ” of JD’s story was false, that Woodard was
not the controlling, possessive, or jealous partner, or what the June 2021
argument was about and who initiated the conflict. Woodard contends this
failure constitutes ineffective assistance, citing two federal cases (see Liu v.
Minisio Depot CA, Inc. (2024) 105 Cal.App.5th 791, 805, fn. 7 [federal cases
are non-binding persuasive authority]) holding that counsel may be found
ineffective for failing to produce evidence promised to the jury, McAleese v.
20
Mazurikiewicz (3rd Cir. 1993) 1 F.3d 159, 166, and Anderson v. Butler (1st
Cir. 1988) 858 F.2d 16–19 (Anderson).
We disagree. “Making promises about the defense evidence in opening
statement and then failing to deliver does not constitute ineffective
assistance per se.” (People v. Burnett (2003) 110 Cal.App.4th 868, 885.)
Ineffective assistance may be found where counsel’s failure to deliver on a
promise stems from a lack of effort—in Burnett, for instance, the court, citing
a federal case, noted counsel’s performance could be deficient, where they
forwent witness testimony without ever interviewing prospective witnesses
or consulting the defendant. (Ibid., citing Harris v. Reed (7th Cir. 1990) 894
F.2d 871, 879.) But counsel is not ineffective where the record shows his
actions were reasonable and consistent with sound trial strategy. (Ibid.)
Anderson, which Woodard himself cites, applies this exact rule: the court
there first considered whether counsel acted reasonably and/or strategically
before finding ineffectiveness for a failure to fulfill a promise. (Anderson,
supra, 858 F.2d at pp. 18–19.)
Under this standard, Woodard’s trial counsel was not ineffective: the
record shows he made a genuine effort to fulfill each promise, rather than
abandoning his promises outright as the ineffective counsel did in the case
cited by Burnett. As the People note, counsel tried to undermine JD’s story
by cross-examining her on inconsistencies in her account—her description of
her injuries and her initial failure to mention a knife to police—which was
consistent with his first promise. As to the second promise, counsel elicited
testimony that JD had vandalized Woodard’s car, consistent with his
promise to prove that she, not Woodard, was the “possessive” and “jealous”
partner in the relationship. As to the third promise, counsel elicited
testimony that Woodard had left JD waiting in the car in sweltering heat
21
before the June 2021 incident, offering both a catalyst for her anger and for
her starting the argument.
Woodard responds only that “[n]one of [this evidence] proved what
counsel had promised” and argues that counsel should instead have called a
witness to contradict the strangulation allegation, present a medical expert
on the absence of traumatic neck injury, or called Woodard, himself, to
negate JD’s account of the June 2021 incident. But counsel’s failure to
persuade the jury does not make him ineffective. As our Supreme Court has
explained, counsel’s failure to succeed at trial, along with a defendant’s
hindsight identification of weaknesses and potential improvements, is not
enough to establish ineffective assistance. (People v. Holt (1997) 15 Cal.4th
619, 704.)
Woodard raises three further objections to counsel’s promises, none of
which we find persuasive.
First, Woodard argues that counsel’s performance was deficient
because the language he used was dramatic: he told the jury his promises
carried binding weight and pledged to prove JD’s claims were “absolutely
untrue” and “completely false.” He contends no reasonable attorney would
make such “absolutist remarks” and cites Anderson, where the court
criticized a “dramatic” promise. (Anderson, supra, 858 F.2d at p. 17.) But
dramatic language, standing alone, is not improper. As the People note,
“zealous advocacy” is permissible in an opening statement, and our Supreme
Court has held that an otherwise proper opening statement does not become
objectionable simply because it is delivered in a manner meant to hold the
jury’s attention. (People v. Dennis (1998) 17 Cal.4th 468, 518.) Anderson,
which Woodard cites, does not demand a different result. There, the court
found ineffective assistance not solely because the promise was dramatic, but
22
because the counsel there quickly reneged on an explicit promise to present
medical testimony, which suggested that counsel had given the matter little
thought and acted carelessly. (Anderson, at p. 18.) None of those factors is
present here, since Woodard’s trial counsel made a concerted effort to carry
out his promises.
Second, Woodard argues that trial counsel’s performance was deficient
because he made his promises without fully considering all the jail calls,
which may have contained damaging evidence. He notes that counsel
received “ ‘over a hundred hours of jail calls . . . a little over three weeks prior
to trial,’ ” and contends no competent attorney would have made sweeping
promises under those circumstances. For support, he cites Anderson’s
finding that it was “inexcusable” for counsel to “have given the matter so
little thought at the outset as to have made the opening promise.”
(Anderson, supra, 858 F.2d at p. 18.)
Anderson is distinguishable. There, the record showed no reasonable
excuse for counsel’s broken promise: because the prosecution’s case had
already rested, counsel faced no surprises, and his failure to deliver could
only be explained by a lack of care. (Anderson, supra, 858 F.2d at pp. 18–19.)
Counsel here was in a different position. In his declaration, he explains that
he was initially given only twelve to fifteen jail-call snippets. Absent any
warning from Woodard, he believed those snippets represented all damaging
calls and built his opening statement accordingly. Only three weeks before
trial did the prosecution produce over 100 additional hours of calls, and
Woodard declined to waive time for counsel to digest them. Faced with that
late, large, and unpredictable disclosure, and Woodard’s refusal to waive
time, counsel chose to proceed with the opening statement as planned.
Given the “highly deferential” review afforded to trial counsel (Strickland,
23
supra, 466 U.S. at p. 689) and the obvious difficulty in digesting so large a
volume of additional recordings under time pressures beyond counsel’s
control, we cannot say that counsel’s decision to make promises was deficient
performance, notwithstanding the additional recordings.
Third, Woodard argues that trial counsel’s promises constituted
deficient performance because they created an “implicit but unmistakable
commitment that [Woodard] would take the stand” to the jury. Quoting from
Saesee v. McDonald (9th Cir. 2013) 725 F.3d 1045, he explains that when
Woodard failed to take the stand, the jury, “ ‘[h]aving waited vigilantly for
[his] promised testimony,’ ” would resolve their confusion through “ ‘negative
inferences.’ ” (See Saesee v. McDonald, at p. 1049.)
We disagree, and also find no prejudice. Counsel made no promise
that Woodard would testify. Woodard’s argument rests on shaky inferential
logic: he reasons that because counsel said he would prove JD’s claims were
“absolutely untrue,” Woodard was necessarily committed to testifying,
because he and JD were the only witnesses to the charged incidents, and
thus only he could dispute JD’s claims.5 But Woodard points to nothing in
the record suggesting the jury understood counsel’s language as such a
promise, such as questions from the jury about whether they might attach
significance to Woodard’s failure to testify or whether counsel’s unfulfilled
promises could be held against Woodard. His argument is conjectural at
5 Counsel’s declaration indicates that Woodard’s decision not to testify
was his own. Counsel assured Woodard that he understood Woodard’s
version of events sufficiently to guide him through testimony on the stand,
but Woodard, after conferring with friends and family, chose not to testify.
24
best, and cannot establish prejudice. (Alcox, supra, 137 Cal.App.4th at
p. 670.)6
As with his principal burden-shifting claim, Woodard also argues the
prosecution’s case was weak in light of evidence he contends favors his
acquittal. We have already discussed why this argument is unpersuasive in
explaining why we reject the main line of his burden-shifting claim, and we
reach the same conclusion for the same reasons here.
In sum, Woodard has failed to establish either deficient performance or
prejudice with respect to counsel’s opening statement promises, and we
reject his claims.
6 The federal cases Woodard cites do not support his position either. In
Ouber v. Guarino (1st Cir. 2002) 293 F.3d 19, the court did find prejudice
from a broken promise, but counsel’s conduct there was very different than
what occurred here. There, counsel directly told the jury that “[t]he case is
going to come down to . . . what your findings are as you listen to the
credibility and the testimony of [the uncalled witness].” (Id. at p. 22.) The
court found a deficient and prejudicial promise in Ouber because counsel’s
statement was explicit and repeated and because he had “exhorted the jurors
to base their ultimate decision” on the uncalled witness’s testimony as
contrasted with another account. (Id. at pp. 34–35.) Nothing comparable
occurred here: counsel never once referenced the possibility of Woodard
testifying, let alone urged the jury to base its verdict on Woodard’s
testimony.
Saesee v. McDonald, supra, 725 F.3d 1045 is likewise not particularly
helpful to Woodard. There, the court found no prejudice where counsel said,
“ ‘I’m counting on him [the prospective witness] to tell the truth and
corroborate what the girl said.’ ” (Id. at p. 1050.) The court reasoned that
this was not a promise to the jury but merely “an expression of hope” and
that it did not create an expectation in the jury’s mind that could prejudice
the defense. (Ibid.) If the language in Saesee fell short of a promise,
counsel’s language here falls even further short, since he never referenced, or
even hinted at, the possibility of Woodard’s testimony. It is therefore
unlikely the jury construed counsel’s language as a promise that it would
hear Woodard testify, or that its verdict turned on Woodard’s own decision
not to do so.
25
B. Instructional Errors
Next, Woodard contends that the trial court’s instructions under
CALCRIM Nos. 852A and 852B impermissibly reduced the prosecution’s
burden of proof regarding the attempted murder charge and violated his
rights to due process and to a jury trial under the state and federal
constitutions. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 7, 15,
& 16.) He challenges the following instruction:
“You may consider [the uncharged domestic violence] evidence only if
the People have proved by a preponderance of the evidence that the
defendant, in fact, committed the uncharged domestic violence. [¶] . . . [¶] . . .
If you decide that the defendant committed the uncharged domestic violence,
you may, but are not required to, conclude from that evidence that the
defendant was disposed or inclined to commit domestic violence and, based
on that decision, also conclude that the defendant was likely to commit and
did commit Counts 1 through 6 as charged here. [¶] If you conclude that the
defendant committed the uncharged domestic violence, that conclusion is
only one factor to consider along with all the other evidence. [¶] It is not
sufficient by itself to prove that the defendant is guilty of Counts 1 through
6. The People must still prove each charge beyond a reasonable doubt.”
Woodard argues that this instruction reduced the prosecution’s burden
of proof as to the attempted murder charge (count one) because it “created a
dangerous shortcut to conviction” by embodying an unreasonable permissive
inference under Ulster County Court v. Allen (1979) 442 U.S. 140 (Ulster
County). We disagree with both arguments, and because none of his
substantial rights was affected, conclude this claim has been forfeited.
Claims of legally erroneous instructions are reviewed de novo. (People
v. Posey (2004) 32 Cal.4th 193, 218.) Woodard did not object to this
instruction at trial. As the People note, failure to object to an instruction at
26
trial ordinarily forfeits a claim. (People v. Ngo (2014) 225 Cal.App.4th 126,
149.) But a reviewing court may still consider a forfeited instructional
challenge where the defendant’s “substantial rights” were affected—a
determination that itself requires an examination of the merits of the claim.
(§ 1259; Ngo, at p. 149.) “ ‘In reviewing a claim of instructional error, the
court must consider whether there is a reasonable likelihood that the trial
court’s instructions caused the jury to misapply the law in violation of the
Constitution. [Citations.] The challenged instruction is viewed “in the
context of the instructions as a whole and the trial record to determine
whether there is a reasonable likelihood the jury applied the instruction in
an impermissible manner.” ’ ” (People v. Lewis (2023) 14 Cal.5th 876, 900.)
And even where the merits are reached, reversal is required only if the error
resulted in prejudice, whether evaluated under the state (People v. Watson
(1956) 46 Cal.2d 818, 836) or federal standard (Chapman v. California (1967)
386 U.S. 18, 24). (See People v. Jennings (2019) 42 Cal.App.5th 664, 680.)
Turning to the application of these standards, we note as a preliminary
matter—as Woodard himself acknowledges—that our Supreme Court upheld
substantially identical instructions against the same challenge in Reliford,
supra, 29 Cal.4th 1007. There, the defendant argued the instructions might
mislead the jury into convicting under a preponderance standard rather than
beyond a reasonable doubt. (Id. at pp. 1012, 1013.) Our high court
disagreed, explaining that nothing in the instructions authorized the jury to
apply a reduced standard to the charged offense. (Id. at pp. 1015–1016.)
The court noted that nothing in the instruction referred to the
preponderance standard for anything other than the preliminary
determination whether the defendant committed the prior offense and
explained in all other respects that the People had the burden of proving
27
guilt beyond a reasonable doubt; and the jury was told (in another
instruction) that circumstantial evidence could support a finding of guilt on
the charged offense only if the proved circumstances could not be reconciled
with any other rational conclusion, a restatement of the reasonable-doubt
standard. (Ibid.) Given these safeguards, the court held it was not
reasonably likely the jury applied a lowered standard of proof. (Id. at
p. 1016.)
Very similar safeguards are present here. The court’s instructions
(like the instruction in Reliford) state that the uncharged domestic violence
was “not sufficient” by itself to prove Woodard guilty; they direct the jury to
“consider . . . all the other evidence”; and they describe the uncharged
conduct as “only one factor” among many. As in Reliford, other portions of
the instructions reiterated that the prosecution bore the burden of proving
the charged offenses “beyond a reasonable doubt.” It is therefore not
reasonably likely the jury applied a lowered standard, and Woodard points to
nothing in the record suggesting otherwise.
Even assuming the instructions are valid on their face, Woodard
argues they should not be allowed here because they permit the jury to draw
an inference from two incidents he alleges are dissimilar. He contends the
uncharged March 2015 incident cannot show the defendant “was likely to
commit and did commit” attempted murder, since there is no evidence he
strangled JD or otherwise attempted to kill her during that earlier incident,
but which he was alleged to have done regarding the charged June 2021
offense. Woodard contends the circumstances here are different from
Reliford, where the compared incidents were “highly similar,” since both
involved an intent to rape a woman the defendant met at a Los Angeles
dance club—a similarity, he argues, permits a rational inference that is
28
absent on this record. He quotes Ulster County to argue that where “ ‘under
the facts of the case, there is no rational way the trier could make the
connection permitted by the inference’ ” (Ulster County, supra, 442 U.S. at
p. 157), a permissive inference, as the one here, is unconstitutional.
We disagree. The rational connection test Woodard invokes from
Ulster County does not ask whether the uncharged and charged offenses are
factually identical or very similar, but whether there is circumstantial
relevance, or some rationality, that can be found on the record. (Ulster
County, supra, 442 U.S. at p. 157.) That test is met here. In Reliford, what
tied the prior and charged incidents together was not identical conduct, but a
shared pattern of conduct: the defendant met a young woman after she left a
Los Angeles club, isolated her under a false pretense, and used physical force
to overcome her resistance for a sexual purpose, with the intent to rape.
(Reliford, supra, 29 Cal.4th at pp. 1010–1011.) The incidents here also share
a close pattern. Both involved the same victim, arose from Woodard’s
accusations—that JD was unfaithful or leaving him—and involved similar
methods of assault: repeated closed-fist blows to the head. In the uncharged
incident, Woodard struck JD in the head more than fifteen times as she lay
on the floor in fetal position. A jury could reasonably view Woodard’s
conduct as showing that he was willing to inflict potentially deadly violence
on JD, bearing directly on whether his conduct in June 2021, which involved
repeated blows to her head, escalating strangulation, and a knife held to her
throat, reflected an intent to kill rather than a lesser state of mind. We
therefore conclude the instructions did not permit an irrational inference,
and no error was made. Because Woodard’s substantial rights were not
affected, his claim is forfeited.
29
Woodard couples this assertion of instructional error with an
ineffective assistance claim, arguing counsel should have objected to
CALCRIM Nos. 852A and 852B. Because the instruction was not erroneous,
counsel was not ineffective for failing to assert error. Woodard’s claim
therefore fails to meet the deficient performance prong of Strickland.
C. Prosecutorial Misconduct
Woodard contends that the prosecutor committed misconduct in three
ways: first, by relying on the expert’s improper invocation of racial
stereotypes; second, by minimizing the prosecution’s burden regarding the
March 29 incident; and third, by misstating the law about relevant evidence.
We find that all of Woodard’s claims here have been forfeited.
“A claim of prosecutorial misconduct is ordinarily preserved for appeal
only if the defendant made ‘a timely and specific objection at trial’ and
requested an admonition.” (People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 853.) This requirement exists to encourage defendants to object
to misconduct at trial and give the court an immediate opportunity to correct
errors and mitigate any prejudice. (Ibid.)
There are exceptions, however. A court will excuse a defendant’s
failure to object where the record shows a meritorious objection would have
been futile or that an admonition would not have mitigated the harm caused
by the misconduct. (People v. Daveggio, supra, 4 Cal.5th at p. 853.) An
exception may also apply where the claim presents an important question of
constitutional law or affects the defendant’s substantial rights. (§ 1259.)
The People argue that, under these principles, Woodard forfeited his
claims by failing to object to any of the three acts or request an admonition
at trial.
30
1. Invocation of Racial Stereotypes
Woodard’s first claim is that the prosecutor committed misconduct by
relying on the prosecution expert’s invocation of racial stereotypes in closing
argument. He cites the following statement by the prosecutor: “Dr. Wilde
testified that culturally African-American women typically do not want to be
seen as victims[,]” that “[t]hey don’t want to show any signs of weakness[,]”
and that “they want to come off as strong.” The prosecutor argued that this
was “exactly” what the jurors saw over the course of the trial.
Woodard’s trial counsel did not make any objection to these remarks or
request that the court admonish the jury. The People argue we need not
consider the merits of the claim because of trial counsel’s failure. We agree.
“ ‘ “As a general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and requested
that the jury be admonished to disregard the impropriety.” ’ ” (People v. Beck
and Cruz (2019) 8 Cal.5th 548, 657.) “ ‘The lack of a timely objection and
request for admonition will be excused only if either would have been futile
or if an admonition would not have cured the harm.’ ” (People v. Hoyt (2020)
8 Cal.5th 892, 942–943.)
Woodard does not contend that he objected to the challenged statement
below or requested an admonition. Instead, he argues that we should
overlook his forfeiture based on our general discretion to do so as discussed
in People v. Denard (2015) 242 Cal.App.4th 1012, which states, “[A]n
appellate court may exercise its discretion to review a claim affecting the
substantial rights of the defendant despite forfeiture for failure to raise the
issue below” (id. at p. 1020), and “where an otherwise forfeited claim
presents an important question of constitutional law or a substantial right,
the appellate court may exercise discretion to review the claim” (id. at
31
p. 1030, fn. 10). He also cites In re S.B. (2004) 32 Cal.4th 1287, superseded
by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th
953, 962, which provides that “application of the forfeiture rule is not
automatic.” (In re S.B., at p. 1293.) The S.B. court added, “the appellate
court’s discretion to excuse forfeiture should be exercised rarely and only in
cases presenting an important legal issue.”7 (Ibid.)
Woodard unquestionably has forfeited this claim and we decline to
exercise our discretion to consider it. Woodard argues in the alternative that
he received ineffective assistance of counsel because of his counsel’s failure to
raise any issue with the prosecutor’s challenged statements at trial. For the
same reasons as those we have discussed regarding Woodard’s ineffective
assistance of counsel claim related to the expert witness’s testimony in
Discussion section A.1, ante, we reject this ineffective assistance claim on
direct appeal because it is better dealt with in a habeas proceeding, if there
is a basis to raise it there.
2. Misstating Law: Strand One
Next, Woodard contends the prosecutor committed misconduct by
minimizing the prosecution’s burden of proof with respect to the March 29,
2021 incident. He points to the following statement: “Let’s say, I’m a little
iffy on June 3rd but I believe March 29th, if I prove to you by a
preponderance of the evidence, meaning more likely than not that one of
those incidents happened, you can use that for the other incident to say that
he was more inclined to commit domestic violence. That’s what the law
allows you to do. [¶] So, essentially, if you believe more likely than not that
7 Unlike instructional error, an objection is still necessary for section
1259’s “substantial rights” analysis to come into play here. (§ 1259.)
32
the defendant committed any one of these three acts, you can use that to
show that he did the other acts.”
Woodard argues the prosecutor misstated the law. Jurors may only
use a charged incident to infer the likelihood of another charged incident if
the prosecution proves the first incident beyond a reasonable doubt, not by a
preponderance of the evidence, as the prosecutor said. (CALCRIM No. 852B;
People v. Holliday (2024) 104 Cal.App.5th 536, 554–557.) The People
concede the misstatement but argue it caused no prejudice, given that the
prosecution, the trial court, and the defense counsel correctly stated the
burden of proof for the charged offense multiple times.
We find Woodard’s claim here forfeited because it does not involve
substantial rights under section 1259, as the challenged remarks did not
constitute prosecutorial misconduct and were not prejudicial.
An improper comment on the law violates the federal Constitution
when it constitutes “a pattern of conduct so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.”
(People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) Even where it falls
short of that standard, an improper comment violates state law if it involves
the “use of deceptive or reprehensible methods to attempt to persuade either
the court or the jury.” (Ibid.) But to establish prosecutorial misconduct, a
defendant must also show that, “ ‘ “[i]n the context of the whole argument
and the instructions,” there was “ ‘ “a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (Ibid.) Woodard does not make such a showing here,
and Cortez, the authority on which he relies, in fact demonstrates why.
In Cortez, the defendant claimed misconduct based on this definition
by the prosecutor of the reasonable doubt standard: “ ‘I submit to you what
33
it means is you look at the evidence and you say, “I believe I know what
happened, and my belief is not imaginary. It’s based in the evidence in front
of me.” ’ ” (Cortez, supra, 63 Cal.4th at p. 130.) While the court found this
definition improper, it concluded there was no reasonable likelihood jurors
believed a nonimaginary belief alone was enough to convict, and no
reasonable probability that the defendant would have obtained a better
result but for the purported misconduct, given several factors: the
prosecutor’s statement was brief and in response to a misleading comment
by defense counsel about the reasonable doubt standard, the prosecutor also
referred jurors to the correct instruction, defense counsel and the court each
correctly and repeatedly restated the proper standard, and the jury had the
correct written instructions during deliberations. (Id. at pp. 131–134.)
Because courts presume jurors treat the court’s instructions as more
authoritative than a prosecutor’s statements, the Cortez court found no
misconduct. (Ibid.)
The same factors are present here. The error was likewise brief,
appearing once and spanning a single sentence. The prosecutor alluded to
the correct standard immediately before misstating it, telling the jury that
the uncharged and charged offenses carry different standards, and later
referred them to the correct instructions. Trial counsel repeatedly reminded
the jury, specifically as to the March 29 and June 3 charged incidents, that
the prosecution bore the burden “100 percent” and had to prove both charges
beyond a reasonable doubt to an “abiding conviction.” The court instructed
the jury, orally and in writing, to follow its instructions over any conflicting
statement by counsel. Finally, the instructions correctly limited the
propensity inference for charged domestic violence to incidents where “the
34
People have proved beyond a reasonable doubt that the defendant committed
one or more of [the] crimes . . . .”
As in Cortez, these repeated correct statements—by the prosecutor
herself, by defense counsel, and by the court—make it unlikely the jury
applied a lowered standard to the March 29 incident. We find no misconduct
and no prejudice, whether evaluated under the state or federal standard.
For these same reasons, we reject Woodard’s related ineffective assistance
claim.
3. Misstating Law: Strand Two
In a final thread of his prosecutorial misconduct claim, Woodard
contends the prosecutor committed misconduct by misstating the law about
the nature of relevant evidence, pointing to her statement here: “I also want
you to keep in mind, are you being asked to focus or concentrate on
irrelevant material. Now you alone decide whether or not it’s relevant. But
all that I have to prove are the elements of the crime. If it doesn’t go to the
elements of the crime, it’s not really relevant. So just think about that as
you’re listening to the defense.” During rebuttal argument, the prosecutor,
referring to defense counsel’s cross-examination of JD, said, “as I stated
before, there was a lot of things that [the] defense was focusing on that don’t
go to the elements of the crime.” Woodard argues that, here, the prosecutor
misstated the law because relevant evidence is not limited to evidence that
bears directly on the elements of the charged crimes, citing Evidence Code
section 2108 and People v. Nottoli (2011) 199 Cal.App.4th 531, 553.
The People conceded at oral argument that the prosecutor’s rebuttal
argument was not an accurate statement of the law. That seems debatable.
8 Evidence Code section 210 states that relevant evidence includes
“evidence relevant to the credibility of a witness or hearsay declarant.”
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Her words were general and did not instruct the jury on what is or is not
relevant, or what they can or cannot consider. She also told the jury that
they “alone” could decide what is relevant, deferring that determination to
the jury rather than issuing a directive. Woodard fails to show that a jury
hearing those words would disregard evidence relevant to witness credibility,
or other evidence that does not “directly bear” on the elements. Under
Cortez, we fail to see how this remark could render the trial “fundamentally
unfair” under the federal Constitution, or how it embodies “deceptive or
reprehensible methods” under state law. (Cortez, supra, 63 Cal.4th at
p. 130.)
Thus, even assuming arguendo that the prosecutor misstated the law,
her statements were not prejudicial. The court separately instructed the
jury on what evidence it could consider, which included “the sworn testimony
of witnesses” and “exhibits admitted into evidence.” The court also reminded
the jury to evaluate anything they told them to consider as evidence, even if
they conflicted with the attorneys’ remarks. In light of the court’s directives,
and the general and nonpreclusive nature of the prosecutor’s statements, we
find no prejudice and reject Woodard’s claim. For these same reasons, we
reject Woodard’s related ineffective assistance claim, reprising the same line
of argument but casting it in terms of ineffective assistance of counsel.
There was neither deficient performance nor prejudice.
D. Cumulative Error
Last, Woodard asserts that even if each individual error were harmless
in isolation, the cumulative effect of the errors requires reversal.
“Cumulative error is present when the combined effect of the trial
court’s errors is prejudicial or harmful to the defendant.” (People v. Capers
(2019) 7 Cal.5th 989, 1017.) But there is no cumulative error to aggregate
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where defendant’s claims are all “waived, forfeited, or . . . meritless.” (People
v. Linton (2013) 56 Cal.4th 1146, 1197.)
Linton describes this case precisely. As discussed, we have rejected
Woodard’s ineffective assistance claims either on the merits or because of
gaps in the record, where counsel was not given a chance to explain his
conduct. Furthermore, we have found his instructional error and
prosecutorial misconduct claims to be forfeited, as they neither involved a
pure question of law nor affected Woodard’s substantial rights. Because
every claim Woodard has raised has been “forfeited” or has been deemed
“meritless,” under Linton, we conclude there is nothing to aggregate and no
cumulative error.
III. DISPOSITION
The judgment is affirmed.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
SWEET, J.*
* Judge of the Marin Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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