Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. CF06901912, James R. Oppliger, Judge.
Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, J.
A jury convicted appellant Cathleen Rose Stephens of two felony identity theft offenses. She contends her convictions must be reversed because the prosecutor committed misconduct by articulating a lesser burden of proof during closing argument. We disagree and will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
We will not give a summary of the underlying facts of the charged offenses as the only contention on appeal is the alleged misconduct of the prosecutor.
The prosecutor charged Stephens with identity theft, a violation of Penal Code section 530.5, subdivision (a), and of acquiring access card account information, a violation of section 484e, subdivision (d). It also was alleged that she was out on bail at the time of the offenses. The alleged victim was 72-year-old Troy Jowers.
All further statutory references are to the Penal Code unless otherwise specified.
Stephens was tried jointly with her codefendant, Dangerfield Coldley Cromer, Jr. At the commencement of the trial and prior to accepting any evidence, the trial court instructed the jury with CALCRIM No. 220 (reasonable doubt). During closing argument, the prosecutor addressed the beyond-a-reasonable-doubt burden of proof. In relevant part, the prosecutor argued:
Cromer’s appeal is before this court as case No. F059416.
“We talked briefly about reasonable doubt. The only definition of reasonable doubt is what you’ll be getting. The only legal definition. Everything else is argument, including my discussion right now. The first part has to do with presumption of innocence. Proof beyond a reasonable doubt is what? It’s proof that leaves you with an abiding conviction that the charge is true. That’s it. After you [see] the proof, you have an abiding conviction that they’re guilty. That’s it. It doesn’t talk about anything else. It doesn’t talk about anything else that was mentioned before. I won’t even mention it because we shouldn’t go into it. It’s just this. It doesn’t talk about how long or anything of that. Leaves you with an abiding conviction that the charge is true. That’s the definition. [¶] … [¶]
“I know I’ve used this before, but I think it’s a very good way to explain it in my view. Reasonable doubt is like a puzzle, a big jigsaw puzzle. You put pieces into the puzzle. At … first we start out with reasonable doubt. Yeah. What is it the jigsaw puzzle shows? You may end up at some point where there’s some pieces missing, but they don’t matter because the overall structure, you know, you can tell, you have an abiding conviction of what it shows.”
Defense counsel did not object to the prosecutor’s comments during argument. After argument had concluded, the trial court again instructed the jury with CALCRIM No. 220. In addition, the trial court instructed the jury with CALCRIM No. 200 (duties of judge and jury).
The jury convicted Stephens of both counts. She admitted the enhancement. The trial court imposed a sentence of one-third the midterm for the identity theft conviction and imposed, then stayed, a two-year term for the access card account information conviction. The trial court struck the out-on-bail enhancement and ordered various fines and fees, including $9,562 in direct victim restitution.
DISCUSSION
I. Forfeiture
Stephens contends the prosecutor’s comments explaining reasonable doubt in the context of a “jigsaw puzzle” improperly simplified the concept of reasonable doubt and allowed the jury to convict her under a less demanding burden of proof.
Because Stephens did not object to any of the challenged remarks, or request that the jury be admonished regarding them, the claim has been forfeited. “‘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.’ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 259.) Had Stephens objected or requested a timely admonition, any claimed harm could have been cured. (People v. Sapp (2003) 31 Cal.4th 240, 279.)
II. Ineffective Assistance of Counsel
Alternatively, Stephens maintains that if we find her claim forfeited, then defense counsel’s failure to object and request an admonition amounted to ineffective assistance of counsel. In the absence of any misconduct, the claim fails.
The familiar standard for review of claims of ineffective assistance of counsel is that the defendant must show (1) trial counsel failed to act in a manner to be expected of reasonably competent attorneys, and (2) a more favorable result would have been obtained absent counsel’s failings. (People v. Lewis (1990) 50 Cal.3d 262, 288.)
A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel. Failure to object, however, rarely constitutes constitutionally ineffective legal representation. (People v. Boyette (2002) 29 Cal.4th 381, 424.) The decision whether to object is inherently tactical, and the failure to object rarely will establish ineffective assistance. (People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
It is clear that the challenged remarks were not objectionable. The prosecutor’s analogy to which Stephens objects is a select quote taken out of context. When the entirety of the prosecutor’s comments are considered, it is clear the prosecutor emphasized that his remarks were merely argument and the jurors would be instructed by the trial court on the legal definition of reasonable doubt. The prosecutor emphasized that proof beyond a reasonable doubt was proof that left the juror with an “abiding conviction that the charge is true, ” the exact language used in CALCRIM 220 to instruct jurors on reasonable doubt.
The prosecutor did not suggest inappropriately a specific quantitative measure as has been found improper in other cases. (See People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1267-1268.) The prosecutor did not trivialize inappropriately the standard as one people use and apply every day in their lives. (People v. Nguyen (1995) 40 Cal.App.4th 28, 36.)
From a review of the totality of the prosecutor’s comments, it is clear the prosecutor did not improperly simplify the standard as Stephens claims.
In any event, in light of the instructions provided to the jury, we cannot conclude any of the prosecutor’s remarks, even if objectionable, were prejudicial. The jury was instructed with CALCRIM No. 200, which provides in relevant part: “You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys’ comments on the law conflict with my instructions, you must follow my instructions.” The jury was then instructed with CALCRIM 220, explaining the burden of the prosecution to prove guilt beyond a reasonable doubt and defining reasonable doubt.
“‘We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation.] Given the instructions provided here, we discern no reasonable likelihood [citation] that the prosecutor’s statements would have misled the jury; therefore defendant fails to demonstrate any prejudice arising from the failure to object.” (People v. Mayfield (1993) 5 Cal.4th 142, 179.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: WISEMAN, Acting P.J., POOCHIGIAN, J.