Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCS199896, Larrie R. Brainard, Judge.
HUFFMAN, J.
A jury convicted Maria Arreola of unlawfully possessing marijuana for sale (Health & Saf. Code, § 11359; count 1) and transporting more than 28.5 grams of marijuana (Health & Saf. Code, § 11360, subd. (a); count 2). The jury also found true an allegation to count 2 that the marijuana transported was not for personal use (Pen. Code, § 1210, subd. (a)). The trial court placed Arreola on formal probation for three years on condition she serve 270 days local custody, less 206 days custody credit.
Arreola appeals, contending prejudicial prosecutorial misconduct during closing argument based on the prosecutor's misadvisement as to the definition of proof beyond a reasonable doubt and on improperly vouching for the credibility of the prosecution witnesses. Arreola further claims the trial court violated its duty to safeguard her constitutional rights when it failed to "obvert the prosecutor's misstatement of the law as to the burden of proof and [overruled her] objections to the prosecutor's [vouching] misconduct." Alternatively, Arreola argues that if we determine any of her contentions have been waived by the failure of her counsel to make the proper specific objections or requests for curative instructions, then she has been denied the effective assistance of counsel. We conclude that on this record any error was harmless and affirm.
FACTUAL BACKGROUND
Because Arreola does not challenge the sufficiency of the evidence to support her convictions arising out of her driving a truck containing concealed marijuana across the border from Mexico into California, we merely state the pertinent facts presented at trial as background for our discussion of her contentions on appeal.
The Prosecution Case
At about 10:15 p.m. on January 22, 2006, Arreola entered the United States at the San Ysidro point of entry driving a 1996 Dodge Ram pickup truck. In response to a border patrol agent's question of whether she was the registered owner of the truck, Arreola explained that she had borrowed the truck from a friend because her car was in the shop for repairs, that she had been in Mexico visiting her sick brother, and that she was returning home to Moreno Valley. Because Arreola appeared extremely nervous and was unable to correctly state the name of the registered owner, the border agent directed her to secondary inspection.
When Arreola then drove slowly into the secondary inspection area, as if she were lost or disoriented, another border patrol agent, who unsuccessfully tried to get her attention, took the keys from her, handcuffed her, turned her over to other agents and parked the truck himself. The agent said that although it was a cold night, Arreola was perspiring profusely, her hands were shaking, and her carotid artery was visibly pulsating.
Yet another border patrol agent screened Arreola's truck with a narcotics detector dog who alerted to the presence of narcotics. A subsequent search revealed a large amount of marijuana hidden in a special compartment in the truck bed which the agent opined likely took two days to construct. The parties stipulated that the quantity of marijuana seized from the truck was 216.37 pounds and was consistent with an amount for sale rather than for personal use.
Arreola was arrested, advised of her Miranda rights and agreed to speak with border patrol agents Christopher Watkins and Moises Martinez. Arreola, who said she was not married or employed, told the agents she crossed the border into Mexico at 9:00 a.m. in the truck, which its registered owner had loaned her that day to meet friends but they never showed up. She claimed she had spent the next 13 hours buying bread and wandering the streets of Tijuana. She had planned to drop the truck off at Kragen Auto Parts in San Ysidro, California, a block north of the border.
Arreola told the agents the name of the owner was Frank Warren, but the registration documents showed that the owner was Frank Wharton.
Martinez stated that Arreola was not forthcoming during the interview, pausing before answering, staring at him for 15 to 30 seconds at a time, and refusing to disclose the names of her friends she had planned to meet or to provide a phone number for the owner of the truck. At one point, Arreola refused to answer any more of his questions.
Martinez also testified as an expert on drug dealing near the border, explaining that dealers typically use couriers or "mules" to smuggle drugs across the border. In such cases, a driver usually picks up the vehicle in Tijuana, drives it over the border, leaves it unlocked with the keys inside, and then walks back into Mexico where he or she is paid. Martinez noted that San Ysidro Boulevard, the first exit after the border, is a common drop off point for such vehicles. He opined that depending on the quantity of drugs smuggled, a driver could earn as much as $2,500 to drive a vehicle over the border.
With regard to this case, Martinez had determined from computer records that the truck Arreola was driving had entered Mexico on January 20, 2006. He estimated the wholesale value of the marijuana she had transported in the truck was worth $32,455 in Mexico, but that this amount would double when the truck crossed the border into San Diego County.
The Defense Case
A special agent with the Department of Homeland Security, Adam Beckhelm, testified that following Arreola's husband's prison term for a marijuana smuggling conviction, he worked with Beckhelm as a confidential informant (CI) for the government from May 2004 to August 2005. In exchange for working as a CI, Arreola's husband received money and other benefits, including a temporary permit for legal entry and residency in the United States. Beckhelm said the relationship was strictly regulated and Arreola's husband could not do any "side jobs" smuggling drugs. The government terminated the CI relationship and cancelled Arreola's husband's border pass in August 2005 when policies for the use of informants changed and he became ineligible due to his criminal background of smuggling, domestic violence and driving under the influence. Because Arreola had attended her husband's trial for drug smuggling, Beckhelm conceded she would have known he was a convicted drug smuggler.
In the five-month period between August 2005 and January 2006, Beckhelm received word that Arreola's husband was behind several drug smuggling operations, none of which had been authorized by the United States government. One of those operations involved Frank Wharton, whom officers had arrested in October 2005 after catching him trying to smuggle drugs across the border in a vehicle registered to Arreola. At that time, Wharton had claimed to be working for Arreola's husband.
Although Wharton was called as a defense witness, he invoked the Fifth Amendment upon the advice of counsel and did not testify. The jurors were instructed that they could not draw any inference for or against any party from the fact that Wharton was not available to testify.
Arreola's husband testified in his wife's defense. In addition to being married to Arreola and currently being in custody for a driving under the influence conviction, he claimed he was a nutritionist and auto mechanic who had worked since 1990 as an independent sales representative for Healthy Living Products International in Tijuana. As an auto mechanic he had bought and registered up to four cars a year, often putting them in Arreola's name. Sometime after 2000, he was solicited to smuggle marijuana because of his frequent trips to Tijuana, but he refused. In 2004, he was detained at the border and marijuana was discovered in a compartment built into the gas tank of his car, which he claimed was a set up. He was convicted of importing marijuana and his permanent residency visa was revoked. Upon completing his prison term, the United States government solicited him to work as a CI and he agreed to do so to avoid deportation.
Arreola's husband explained that as a CI, he became thoroughly familiar with drug smuggling by infiltrating the Mexican mafia. In connection with such work, he helped register vehicles in the name of the drug couriers in order to divert suspicions of narcotics smuggling. After registration, the vehicles would usually be modified before taking them to Mexico, where smugglers would load them with drugs before the newly registered owners drove them back across the border. He tried to keep his CI activities secret from Arreola to avoid scaring her.
Sometime during his government sanctioned infiltration of drug smuggling operations, Arreola's husband had met Wharton panhandling at a 7-Eleven store near the Moreno Valley trailer where he and Arreola lived. Wharton told him he was involved in buying and selling drugs, and could cross the border at any time and only receive a slap on the wrist if he were caught because he was a United States citizen. Arreola's husband said that Arreola knew Wharton because he had once come to their trailer to help her prepare a resume to look for a job.
Although his CI status was officially terminated in August 2005, Arreola's husband claimed Beckhelm had told him it was only because he was having trouble paying him, and suggested he work "off the record" until he could place him with another governmental agency. Beckhelm told him not to call him and promised to reinstate his residency status. In hopes of getting back in with the government, Arreola's husband decided to involve Wharton in smuggling operations "off the record" as suggested by Beckhelm.
Two weeks before Arreola's arrest in this case, her husband thus registered the truck in Wharton's name before it was outfitted with a secret compartment and driven to Tijuana on January 20, 2006. Then on January 21, 2006, while he was in Yuma, Arizona, to scout out a possible site for a motor home to be used by the Mexican mafia with Beckhelm's knowledge, Arreola's husband was told he would face adverse consequences if he did not pick up Wharton's truck and drive it across the border because Wharton had just been arrested. When Arreola's husband told her he would have to go to Mexico to drive the truck back, she offered to go in his place because his border permit had expired. He then drove Arreola to the border where she crossed into Mexico on foot.
Although he originally claimed he would never have allowed Arreola to pick up the truck in Mexico if he had believed it contained contraband, on cross-examination Arreola's husband admitted he knew the truck was loaded with drugs and the Mexican mafia needed it to cross the border on January 22, 2005. He also admitted that despite the expiration of his visa, he had crossed the border numerous times during the period from August 2005 through January 2006.
Arreola testified on her own behalf. She conceded she knew that her husband was working for the government, but claimed she did not know the details of his employment. As for January 21, 2006, Arreola's testimony corroborated her husband's about going to Yuma, Arizona, and then learning about the need to pick up Wharton's truck in Mexico after they returned home that day. She crossed into Mexico on January 22, 2006 to pick up the truck because her husband was afraid he would be arrested and deported if he did so.
According to Arreola, after picking up the truck which had been parked in front of a church, she waited in line at the border unaware it contained marijuana. As she did so, a warning light on the dashboard came on and she was directed to the secondary inspection point, where she was handcuffed, searched and placed in a cell for about three hours before being interrogated. Arreola claimed she was threatened with prison and deportation, and accused of lying during the interrogation. At that time, she was very scared and had not had anything to eat or drink.
Although Arreola admitted she had lied to the agents about the time and date she arrived in Tijuana and about seeing friends, she denied that she was nervous when she was driving the truck, that she told the agents she intended to park and leave the truck at Kragen Auto Parts, that she was unmarried, or that she had been in Mexico to visit a sick brother. She explained she had declined to answer questions about her marital status because she was concerned her husband would be deported. She told the agents she did not know anything about the marijuana and intended to stop at Kragen Auto Parts "because of the light."
Rebuttal Evidence
On rebuttal, the other agent (Watkins) who witnessed Arreola's interview, denied she had been threatened or coerced in any way.
Beckhelm also testified in rebuttal that Arreola's husband had told him he had smuggled drugs across the border at least 40 times before getting caught, and that he had not talked with Arreola's husband from the time their relationship was severed in August 2005 until he was contacted in January 2006 about Arreola's arraignment in this case. Arreola's husband told Beckhelm at that time that he had been working for him "outside the system" for the last six months and had information to share. Beckhelm, however, had not authorized any such work nor was it sanctioned by the government. Beckhelm explained that he would have lost his job if he had permitted Arreola's husband to work outside the system, an arrangement which would not have benefited anyone.
Instructions and Closing Arguments
Because Arreola's contentions on appeal essentially concern alleged prosecutorial misconduct during closing argument regarding the reasonable doubt standard and vouching of witnesses' credibility, some objected to and overruled, and some not, in addition to the above facts, we set forth a brief summary of the relevant portions of the trial court's instructions and the closing arguments before addressing Arreola's specific arguments.
The court instructed the jury on the law in the case before the parties gave closing arguments. The trial judge specifically instructed the jury on the reasonable doubt standard as follows:
"The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because she has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation 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 the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, she is entitled to an acquittal and you must find her not guilty." (CALCRIM No. 220.)
The court also told the jurors that they were to base their determination of what the facts were in the case on the evidence presented through sworn testimony of witnesses, exhibits and stipulations, and not on what the attorneys said in questions, objections, and opening and closing arguments. The court told the jurors that the facts could be proved by direct or circumstantial evidence, or by a combination of both, and gave instructions on factors to use in evaluating a witness's testimony, including "[h]ow reasonable is the testimony when you consider all the other evidence in the case?"
With regard to the intent or mental state required for a particular crime, the court instructed the jurors with CALCRIM No. 252 regarding union of act and intent, general and specific intent together, as well as CALCRIM No. 225, which provided in part that:
"Before you [may] rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to conclude that the defendant had the required intent or mental state you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent or mental state. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did have the required intent or mental state and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent or mental state was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
The Prosecutor's Closing Argument
In closing, the prosecutor reviewed the evidence in the case, telling the jury to ignore Arreola's denial that she had no knowledge of the marijuana in the truck she was driving across the border. The prosecutor stressed the inconsistencies in Arreola's testimony, her admitted lies to the border agents, and her three different stories as to the events that evening. The prosecutor then discussed the six legal elements she had to prove beyond a reasonable doubt to show that Arreola was guilty of the count 1 offense of possession for sale, and the five elements she needed to prove beyond a reasonable doubt for the count 2 offense of transporting a controlled substance. She noted that the crucial issue regarding both counts was whether Arreola knew of the presence of the marijuana in the truck, explained the differences in the mental states and intent required for each count and the enhancement allegation to count 2, and told the jury that it was her burden to prove Arreola's mental state and intent for each beyond a reasonable doubt.
The prosecutor then stated, "I have to prove to you that [Arreola] knew those drugs were in the [truck]. And one of the things, in fact, all the things I will be using are circumstantial evidence because like I told you, she was not going to come in and sit on the stand and say I knew the drugs were in the [truck]." After discussing motive as a factor to consider in determining Arreola's guilt and the duty not to consider pity and possible punishment in doing so, the prosecutor then told the jury:
"And I will go into reasonable doubt because obviously that's a critical factor. It's just reasonableness. Did I show you beyond a reasonable doubt that she knew the drugs were in the [truck]? All the evidence points to guilt here. But if you view the evidence and find that the defense evidence is reasonable, well, sure, find her not guilty. But if you find that the defense case is unreasonable, then your only choice is to find her guilty because it's beyond a reasonable doubt. So when you look at it, it's basically why I asked you in jury selection do you have [common sense]. Bring it in with you. Don't leave it here in the courtroom when you go into the jury room. Bring it with you into the courtroom. Let's look at some of the evidence." (Italicsadded.)
After next commenting on how the jury could find and use Arreola's "consciousness of guilt" as another factor, the prosecutor referred the jury to CALCRIM No. 226 regarding factors to look at in determining the credibility of a witness. The prosecutor then highlighted several points regarding the prosecution witnesses, including the consistency and promptness of their testimony in contrast to the hesitancy and inconsistencies in Arreola's and Arreola's husband's testimony. She also stated, "Bias. Did the prosecution witness[es] have anything to gain from this? They have all done their jobs. You know, they did the investigation that they were supposed to do. They wrote reports. They did what their job was, and they handed it over to my office, and now we take over. We use them to make our case. But their job is done, essentially. If they're caught lying what do they have to lose? They will have lost pension benefits, their livelihood."
The court overruled defense counsel's objection to the prosecutor's last statement on grounds there was "no evidence of that. It's not logical," saying it thought "it's appropriate argument. Motivations. But we don't have evidence of that. So just use your common sense." When the prosecutor reiterated that the prosecution witnesses "all take their work seriously, but they're not going to purger [sic] themselves over one case. These things come across the border on a daily basis," defense counsel again objected. After the prosecutor expressed her belief that the witnesses had testified that they saw "things come through the border everyday," the court again overruled the objection.
The prosecutor again pointed out the inconsistencies in Arreola's testimony, noting how Arreola wanted the jury to believe that the interviewing agents were lying and had intimidated her to say the things that she had said. The prosecutor reviewed Arreola's stories and the testimony of her husband and argued that "[t]here is no reasonable evidence in this case to show that . . . Arreola did not know what she was doing. Everything points to her guilt in this case. All of the circumstantial evidence shows you that . . . her lies, her inconsistencies, those are enough to convince you beyond a reasonable doubt. There is only one reasonable conclusion that you can come . . . to in this case, and that is she's guilty of both charges."
The Defense Closing Argument
Defense counsel called upon the jurors to make their own individual decisions in this case based upon what the evidence "really shows, and how -- [what] I believe is a reasonable way of looking at the evidence." He agreed with the factors regarding credibility that the prosecutor had gone over and stressed that because the law enforcement witnesses were testifying as part of their work, they were practiced and good at their jobs as compared to Arreola and her husband who did not have the same experience in testifying.
Counsel then pointed out the inconsistencies he found in the various agents' testimony and explained Arreola's nervousness and hesitancy in her answers based on her frustration and fear for a situation she had never encountered before in her life. Counsel explained that Arreola told different stories to the agents only to protect her husband and to get them to stop asking her questions. When defense counsel claimed that the People were relying on the "nuances of those witness[es]" to prove that "it's evidence beyond a reasonable doubt," and that he did not think "that that kind of circumstantial evidence is enough to convince someone beyond a reasonable doubt," the court reminded the jurors to recall the circumstantial evidence instructions in response to the prosecutor's objection that counsel was misstating the law.
Defense counsel then commented on the lack of direct evidence in this case to show Arreola's knowledge that there was marijuana in the truck, explained why her husband's knowledge, if he knew about the drugs, should not be imputed to her, and discussed the high standard of proof beyond a reasonable doubt that the prosecutor had. Counsel also reiterated that because the People's case was "a circumstantial case," if the jury could "draw two or more reasonable conclusions from the evidence, . . . and one points to guilty and one points to not guilty, and in a circumstantial evidence case you have to find the person not guilty if there are reasonable explanations."
The Prosecutor's Rebuttal Argument
In her responsive argument, the prosecutor told the jurors not to be blind to the entire "elephant" in this case by looking only at one of its parts as defense counsel would have them do. After going through several other things brought up by defense counsel, and reiterating the People's view of the evidence in this case, including Arreola's "lies" and motive, the prosecutor closed her argument with telling the jurors:
"Obviously this isn't everything. This is just some of the things. I believe when you go through the evidence you will come up with a lot more. But what does this mean? It means she's guilty. And there's no other reasonable conclusion you can come to when you look at everything in this case. Again, don't just touch the elephant's tail or trunk. Touch his whole body and you will see there's only one conclusion. [Arreola's] guilty beyond a reasonable doubt." (Italics added.)
DISCUSSION
Because Arreola raises three somewhat related issues concerning alleged prosecutorial misconduct, i.e., misstating the reasonable doubt standard and vouching for the credibility of the prosecution witnesses, during closing and rebuttal argument, we first set out the pertinent law concerning such misconduct before addressing her contentions.
A. Prosecutorial Misconduct Generally
"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, . . . when the claim focuses upon comments made by the prosecutor 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.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.]" (People v. Price (1991) 1 Cal.4th 324, 447.) Therefore, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury. [Citation.]" (People v. Brown (2003) 31 Cal.4th 518, 553.) However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile. [Citation.] In addition, the failure to request that the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct or the trial court immediately overrules an objection to alleged misconduct such that the defendant has no opportunity to make such a request. [Citation.]" (People v. Cole (2004) 33 Cal.4th 1158, 1201 (Cole).)
"When a defendant makes a timely objection to prosecutorial argument [or such objection is excused], the reviewing court must determine first whether misconduct has occurred, keeping in mind that ' "[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom" ' [citation], and that the prosecutor 'may "vigorously argue his case" . . ., "[using] appropriate epithets warranted by the evidence." ' [Citation.] Second, if misconduct had occurred, we determine whether it is 'reasonably probable that a result more favorable to the defendant would have occurred' absent the misconduct." (People v. Welch (1999) 20 Cal.4th 701, 752-753.)
With these rules in mind, we turn to Arreola's assertions on appeal.
B. Comments on the Burden of Proof Beyond a Reasonable Doubt
Arreola first complains that the prosecutor misstated the reasonable doubt standard burden of proof in both her opening and rebuttal closing arguments and that the trial court failed to sua sponte correct those misstatements. Arreola, however, did not object below to the comments, emphasized above in the factual summary of closing statements, that she now identifies on appeal as constituting prosecutorial misconduct. Nor did she request any curative admonition from the trial court to correct any alleged misstatement or purported "watering down" of the prosecution's burden of proof. Because the trial court had correctly instructed the jury on the prosecution's burden of proof before the closing arguments and any harm could have been cured by an admonition to the jury to refer to those instructions, Arreola's failure to timely object and request the court to admonish the jury precludes her claim of misconduct on appeal. (People v. Cunningham (2001) 25 Cal.4th 926, 1000-1001 (Cunningham).)
However, even assuming the issue was preserved for appeal, and the prosecutor's otherwise clumsy statement concerning reasonable doubt amounted to prosecutorial misconduct, we can find no prejudicial misconduct on this record because Arreola has not demonstrated a reasonable likelihood that the jury understood or applied the comments in an improper manner. Although the portions of the prosecutor's arguments that Arreola complains about are less than artful, and a bit troubling because they appear at first blush to improperly equate the reasonable doubt burden of proof with only "reasonableness," when taken in the context of this case and the prosecutor's arguments as a whole, such remarks basically challenged Arreola's credibility on the issue of her mental state of knowledge and intent, and argued that there was only one reasonable conclusion that could be drawn from the direct and circumstantial evidence presented during trial because the defense interpretation of that evidence was not reasonable. Defense counsel essentially used the same standard in his closing statement to argue that a not guilty verdict must be returned by the jury because Arreola's version of the direct and circumstantial evidence in this case was reasonable.
To the extent the prosecutor may have combined the circumstantial evidence instruction with the reasonable doubt standard without fully explaining the two, as already noted, the court fully and correctly instructed the jury with CALCRIM Nos. 220 and 225 regarding those legal concepts, as well as instructing the jury to disregard statements of counsel that contradict the court's instructions. We presume the jurors followed such instructions. (People v. Boyette (2002) 29 Cal.4th 381, 436 (Boyette).)
Thus, in light of those unchallenged instructions, and the fact that the complained of statements were brief and the evidence against Arreola strong regarding her knowledge and intent in attempting to drive the truck laden with marijuana across the border, we cannot find it reasonably probable that a different result would have been reached absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Nor can we find that the trial court had a sua sponte duty to correct the prosecutor's brief alleged misstatement, which a proper objection would have cured, when the court had already correctly instructed the jury. A trial court has no duty to make a defendant's objections for her. (See People v. Riel (2000) 22 Cal.4th 1153, 1212.)
C. Claim of Improper Vouching
Arreola also claims that the prosecutor committed prejudicial misconduct by vouching for the credibility of her witnesses based on facts outside the record and that the trial court prejudicially erred by overruling defense counsel's objections to the improper vouching. Arreola, however, did not specifically object to any of the statements of the prosecutor during closing argument as "improperly vouching" for the credibility of a witness, only on the grounds that the statements were illogical and not supported by the record, or without stating any grounds. As noted earlier, the general rule is that " ' " . . . a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety." ' [Citation.]" (People v. Ayala (2000) 23 Cal.4th 225, 284.)
Nevertheless, because the People do not raise waiver on appeal, but rather address the merits of Arreola's vouching claim, in light of the trial court's immediate overruling of Arreola's counsel's complaint that the first statements made while the prosecutor was discussing the credibility of the law enforcement witnesses that "[t]hey will have lost pension benefits, their livelihood," if they were caught lying, were illogical and not supported by the evidence, we address the issue, excusing Arreola from the general requirement of requesting an admonition to cure the alleged misconduct regarding such statement because her counsel had no opportunity to do so. (Cole, supra, 33 Cal.4th at p. 1201.)
Further, even though Arreola's counsel did not state a specific ground for his objection to the prosecutor's next statements regarding the agents' credibility that they would not commit perjury in one case when they deal with many of these cases on a daily basis, which the court also overruled, we do not consider the issue waived. Again the People have not raised forfeiture in opposition to the claim of prosecutorial misconduct based on such comments and the record reflects the parties and court treated this second objection as being based on the same grounds defense counsel had just made regarding no evidence or logic to support the prosecutor's comments.
With regard to the first objection to the prosecutor's statements addressing the bias of the law enforcement witnesses, we note that for the most part, the prosecutor's remarks were reasonable inferences and fair comment on the evidence, which included testimony as to what the respective agents' and officers' jobs entailed and what each did with respect to the investigation in this case, including their particular parts in the investigation, search of the truck, interviews and the making and using of the various reports. (See People v. Frye (1998) 18 Cal.4th 894, 971 (Frye).) Generally, "so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (Ibid.)
However, it is difficult to understand why the court overruled the objection to the prosecutor's remarks that the agents or officers would lose pension benefits if they were caught lying when it found such remarks had no evidentiary support in the record. "A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.]" (Frye, supra, 18 Cal.4th at p. 971.) Contrary to the People's position, we do not find that Beckhelm's rebuttal testimony that he could lose his job if he permitted Arreola's husband to work "off the record," to provide sufficient evidence from which a reasonable inference could be made to support the prosecutor's sweeping statement that the other agents and officers would suffer a loss of pension benefits or their livelihood if they were not truthful in their reports and testimony. Because we agree with the trial court that there was no evidence in the record to support such an inference, which in turn would give the law enforcement witnesses the motivation to tell the truth, we conclude that the prosecutor committed misconduct in making such comments based on facts not within the trial record and that the court erred when it did not sustain Arreola's counsel's objection to those statements.
As to the second objection, which the court again overruled, it found there was an evidentiary basis in the record for the prosecutor's argument. Although we agree with such assessment because several agents testified about the large volume of cases they handled every week involving the attempted smuggling of drugs across the border, we believe the prosecutor came close to crossing the line from proper argument on the credibility of witnesses based on facts in the record and improper vouching based on her own opinions. (See People v. Sully (1991) 53 Cal.3d 1195, 1235-1236.) As noted above, Arreola did not object to those comments on grounds of vouching, which would have given the court the opportunity to admonish the jury to cure any harm from the prosecutor's personal remarks.
On this record, however, we are satisfied that the above errors were harmless and did not deny Arreola due process. Not only did the court appear to admonish the jurors on its own regarding the first objected-to comments that there was no evidence of the agents' motivation or lost pension benefits, and to use their common sense, the court also had instructed the jurors that nothing the attorneys said in argument was evidence and to base their decision only on the evidence in the case. Again, we presume the jurors followed the court's instructions. (Boyette, supra, 29 Cal.4th at p. 436.) Further, the prosecutor's personalized opinion regarding the agents not committing perjury over one case was brief, innocuous and followed by references to evidence bearing on the agents' credibility.
Thus, even if the statements were improper, because the evidence presented at trial provided strong evidence of Arreola's guilt, especially in light of the strange defense story regarding Arreola helping her husband bring back an empty truck for a drug organization so he would not be deported and her admissions of lying to the border agents, it is not reasonably probable that a more favorable outcome would have occurred in their absence. (See People v. Fields (1983) 35 Cal.3d 329, 363 [prosecutorial misconduct was harmless error when the evidence of defendant's guilt was overwhelming].)
Moreover, even if we consider these purported vouching errors together with the previously alleged misstatements regarding the reasonable doubt standard, we do not find cumulative reversible error as Arreola contends. As noted above, any error regarding those alleged misstatements or the vouching comments was harmless in light of this record and the totality of the court's instructions and counsel's arguments. (See People v. Malone (1988) 47 Cal.3d 1, 56.)
D. Ineffective Assistance of Counsel
Finally, Arreola contends that if this court concludes that any of the above errors regarding prosecutorial misconduct have been waived because defense counsel failed to properly make a specific objection or request for a curative instruction, then she was denied the effective assistance of counsel. We disagree.
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (Cunningham, supra, 25 Cal.4th at p. 1003.)
Moreover, "[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal." (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
Here, the record is silent on why Arreola's counsel did not make objections to and request admonitions for the prosecutor's statements during closing and rebuttal argument on reasonable doubt that he now claims were misconduct. Nor does the record contain any explanation as to why Arreola's counsel only objected to the comments she now claims as improper vouching on grounds those statements were illogical and not supported by the record. In light of this record, even if there could be no satisfactory explanation for counsel's failures, as noted in the above discussions, Arreola has not shown that a different result was reasonably probable absent those purported omissions. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) We therefore reject Arreola's claim of ineffective assistance of counsel on appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.