Opinion
H043481
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL SAUCEDO DELGADO, Defendant and Appellant.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] THE COURT:
It is ordered that the opinion filed herein on August 13, 2018, be modified as follows:
On page 1, replace "Michael" with "Miguel" in the caption of the opinion.
There is no change in the judgment.
/s/_________
ELIA, ACTING P.J.
/s/_________
BAMATTRE-MANOUKIAN, J.
/s/_________
MIHARA, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. F1345468)
Defendant appeals from a judgment of conviction of multiple lewd or lascivious acts (Pen. Code, § 288, subd. (a)). He argues that the trial court erred in sentencing him to consecutive terms of 15 years to life on both counts 3 and 4, that the prosecutor engaged in prosecutorial misconduct during closing argument by repeatedly misstating the standard of proof, and that defense counsel provided ineffective counsel by failing to object to that improper argument. Defendant asserts that if this court rejects his other arguments, he must be resentenced to a determinate term on count 4.
All further statutory references are to the Penal Code unless otherwise specified.
Defendant has withdrawn a Marsden claim (see People v. Marsden (1970) 2 Cal.3d 118). Defendant has also filed a separate petition for a writ of habeas corpus (In re Miguel Saucedo Delgado, H045511), which we considered with this appeal. We resolve the petition by separate order. --------
We conclude that defendant's claims of prosecutorial misconduct were forfeited by failing to object in the trial court and that defendant has failed to establish an ineffective assistance of counsel claim. But we agree that the trial court erred in sentencing defendant to separate, consecutive 15-years-to-life terms on counts 3 and 4. Accordingly, we remand for resentencing.
I
Procedural History
An information charged defendant with seven counts of committing a lewd or lascivious act on a child under the age of 14 years in violation of section 288, subdivision (a). The charges involved multiple victims, and a multiple victim allegation was alleged as to each charge pursuant to section 667.61, subdivisions (b) and (e).
Following a jury trial, defendant was found guilty of counts 1 and 3 through 7. The jury found all the multiple victim allegations attached to those counts to be true (see § 667. 61, subds. (b), (e).) The trial court granted a mistrial on count 2.
At sentencing, the trial court imposed a total term of 90 years to life, consisting of six consecutive terms of 15 years to life (§ 667, subds. (b), (e)). Upon the People's request, the court dismissed count 2 in the interests of justice.
II
Discussion
A. Sentencing under Former Section 667.61
Defendant argues that under former section 667. 61, subdivision (g), the trial court was not authorized to impose separate, consecutive life terms on counts 3 and 4. The People concede that "pursuant to the law in effect in 2004 or 2005 when [defendant] committed counts 3 and 4 against B.D., the trial court was required to impose a single life sentence as to either count 3 or 4," and "impose a determinate term on the other count."
Counts 3 and 4 were both alleged to have occurred on or about and between December 4, 2003 and December 3, 2005 and involved the same alleged victim, B. Doe. During closing argument, the prosecutor argued that count 3, the first of four counts involving B., occurred when defendant rubbed his penis on her vagina, and count 4 occurred when defendant had B. "hold his penis and move it on her."
The evidence showed that defendant was married to B.'s paternal grandmother, that the grandmother babysat B. when B. was in kindergarten and that defendant sexually abused B. in her grandmother's home where defendant also lived. B. testified that while her grandmother was absent doing laundry outside the home, defendant sat her on the top of the kitchen table, pulled down her pants and underwear, and touched her vagina with his penis. He held his penis, rubbed it against her vagina, and moaned. While he kept a hand on his penis, defendant then had B. grab his penis and rub it on her vagina. The incident ended when her grandmother was seen returning home.
Prior to its amendment in 2006, section 667.61, subdivision (g), provided in pertinent part: "The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. . . . Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable." (Stats. 1998, ch. 936, § 9, p. 6876.)
In People v. Jones (2001) 25 Cal.4th 98, the California Supreme Court held that "for the purposes of Penal Code [former] section 667.61, subdivision (g), sex offenses occurred on a 'single occasion' if they were committed in close temporal and spatial proximity." (Id. at p. 107.) The court explained that "the rule we adopt should result in a single life sentence . . . for a sequence of sexual assaults by defendant against one victim that occurred during an uninterrupted time frame and in a single location." (Ibid.)
That rule applied to counts 3 and 4 since those offenses were committed before 2006. (See People v. Alvarez (2002) 100 Cal.App.4th. 1170, 1178 (ex post facto principles).) Consequently, we must remand for resentencing. B. Alleged Prosecutorial Misconduct
Defendant argues that the prosecutor engaged in misconduct during closing argument by misstating the beyond-a-reasonable-doubt standard of proof. Defendant acknowledges that defense counsel did not object to any of the remarks now being challenged.
1. Background
At the beginning of the trial, the trial court told the jury, "[R]emember under our system there is never an obligation on a defense to present any evidence at all and that's because the burden is squarely upon the Prosecution to prove the case beyond a reasonable doubt if they can do so." The court stated the presumption of innocence and the People's burden of proof. It explained: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty."
Before closing argument, the trial court instructed the jury again. The jurors were each given a copy of the instructions and told they were "free to follow along" as the trial court read the instructions to the jury.
Pursuant to CALCRIM No. 220, the trial court instructed: "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 he 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 a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] 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, he is entitled to an acquittal and you must find him not guilty."
The court explained direct and circumstantial evidence to the jury and instructed that "[f]acts may be proved by direct or circumstantial evidence or by a combination of both" and that "[y]ou must decide whether a fact in issue has been proved based on all the evidence." On evaluating conflicting evidence, the jury was also told that "[i]f you determine there is a conflict in the evidence, you must decide what evidence, if any, to believe." The trial court also gave an instruction on circumstantial evidence.
The circumstantial evidence instruction stated in part: "An intent may be proved by circumstantial evidence. [¶] 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, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant had the required intent. 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 and another reasonable conclusion supports a finding that the defendant did not, you must conclude that the required intent was not proved by the circumstantial evidence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
In closing argument, the prosecutor indicated that the standard of proof was beyond a reasonable doubt. He made the following remarks without objection: "For you to find a reasonable doubt, and I don't think believe that there is one in this case, it has to be based on the evidence, and not speculation or conjecture, and it can't be a mere conflict in the evidence. And it would have to be reasonable. It would not be reasonable to have a reasonable doubt in this case. [¶] Are there two reasonable explanations? If there's two evenly reasonable explanations, that's when you find the defendant not guilty. If there's only one, guilty. [¶] Burden of proof. What does that mean? Beyond a reasonable doubt is proof beyond a reasonable doubt. It 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. It's not beyond all doubt, shadow of a doubt. It has to be reasonable. Unless you have a reasonable doubt, then the defendant is guilty." The prosecutor maintained that "there is no other reasonable interpretation except the defendant is guilty of these seven counts."
In the defense's closing argument, defense counsel asked the jurors to carefully look at each case individually and told them that "[e]ach element of each crime has to be proven beyond a reasonable doubt." He said, "[a]s [h]is Honor instructed you, you have to be convinced that the state of the evidence leaves you with this abiding conviction of the truth of the charge . . . ." Defense counsel asserted that none of the charged offenses were proved beyond a reasonable doubt.
2. Forfeiture
The People assert that defendant's claims of prosecutorial misconduct were 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. Samayoa (1997) 15 Cal.4th 795, 841.) "A court will excuse a defendant's failure to object only if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. (People v. Hill (1998) 17 Cal.4th 800, 820.)" (People v. Jackson (2016) 1 Cal.5th 269, 349.) Also, "the absence of a request for a curative admonition does not forfeit the issue for appeal if 'the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.' [Citations.]" (People v. Hill, supra, at pp. 820-821 (Hill).)
"A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 462.) "The ritual incantation that an exception applies is not enough." (Ibid.)
Defendant baldly asserts that a defense objection to the prosecutor's challenged remarks "would not have dispelled the impression created by those remarks." We disagree.
Any misstatement of law could have been cured by a judicial admonishment that the jurors must follow the court's instructions rather than any conflicting comments on the law made by counsel and by referring the jury to its instructions on jurors' duties, the presumption of innocence, the standard of proof, and circumstantial evidence. (See CALCRIM Nos. 200, 220, 225.) Thus, a timely defense objection to misstatements of law would not have been futile and an admonition would have cured the harm. Consequently, defendant's prosecutorial misconduct claims were forfeited for review, and we consider them only in the context of his ineffective assistance of counsel claim. (Cf. People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno); People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 (Gonzalez), superseded by statute on another ground as stated in In re Steele (2004) 32 Cal.4th 682, 691.) C. Defense Counsel's Failure to Object to Prosecutor's Closing Argument
1. Standard for Establishing Ineffective Assistance of Counsel
Defendant argues that if his prosecutorial misconduct claim was not preserved, defense counsel provided ineffective assistance by not objecting. The standard for evaluating a claim of ineffective assistance of counsel is well established. It requires a two-prong showing of deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." (Id. at p. 700.)
As to deficient performance, a defendant "must show that counsel's representation fell below an objective standard of reasonableness" measured against "prevailing professional norms." (Strickland, supra, 466 U.S. at p. 688.) "Judicial scrutiny of counsel's performance must be highly deferential." (Id. at p. 689.) "[E]very effort" must "be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Ibid.) "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." (Ibid.)
The prejudice prong requires a defendant to show that "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.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Ibid.)
"In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. [Citations.] Instead, Strickland asks whether it is 'reasonably likely' the result would have been different. [Citation.] This does not require a showing that counsel's actions 'more likely than not altered the outcome,' but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters 'only in the rarest case.' [Citation.] The likelihood of a different result must be substantial, not just conceivable. [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 111-112.)
A court is not required to first determine whether counsel's performance was deficient before examining prejudice. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." (Strickland, supra, 466 U.S. at p. 697.) 2. Analysis
Defendant contends that the prosecutor's argument repeatedly misstated the beyond the reasonable doubt standard of proof. He asserts that by saying that reasonable doubt "can't be a mere conflict in the evidence," the prosecutor incorrectly implied that the defense has the burden of producing evidence of reasonable doubt and that a mere evidentiary conflict cannot raise a reasonable doubt. Defendant argues that the prosecutor's remark that he was guilty if there was only one reasonable explanation also erroneously implied that "the defense had an obligation to advance a 'reasonable' narrative" and "improperly suggested that the trial was a contest between narratives, rather than a proceeding in which the prosecution was the only party with a burden." Defendant maintains that the prosecutor's comment that "[u]nless you have a reasonable doubt, then the defendant is guilty" "inverted the burden of proof, telling the jury to convict unless a reasonable doubt existed." Defendant submits that the prosecutor's argument deviated from the "actual legal standard" that focuses "on what the prosecution has proved, and whether that proof overcomes a pre-existing presumption of innocence" and instead indicated that he was guilty unless he raised a reasonable doubt.
"[I]t is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal.3d 502, 538), and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215)." (People v. Marshall (1996) 13 Cal.4th 799, 831.) But "we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one. [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1192; see Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647 [a reviewing court "should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations"].)
When the prosecutor indicated that reasonable doubt must be based on the evidence rather than on speculation or conjecture, he might have been trying to correctly convey that "[a] fanciful doubt is not a reasonable doubt" (Victor v. Nebraska (1994) 511 U.S. 1, 17 (Victor)) and that in deciding whether the People have proved their case beyond a reasonable doubt, jurors must compare and consider all the evidence that was received throughout the entire trial. (See People v. Hernández Rios (2007) 151 Cal.App.4th 1154, 1157 [upholding CALCRIM No. 220 and noting that in Victor, supra, at p. 16, "[t]he United States Supreme Court rejected a constitutional challenge to CALJIC No. 2.90 in part on the rationale that 'the entire comparison and consideration of all the evidence' language 'explicitly told the jurors that their conclusion had to be based on the evidence in the case' "].) Further, a criminal defendant may under certain circumstances have the burden of producing evidence. While the ultimate burden of proof always remains with the People (see § 1096) and "[t]he burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact" (Evid. Code, § 550, subd. (b)), "[t]he burden of producing evidence as to a particular fact is on the party against whom a finding on the fact would be required in the absence of further evidence." (Id., subd. (a).) In a murder case, the California Supreme Court has explained that "once the prosecution has submitted proof that permits a finding beyond reasonable doubt on every element of a charge [of murder], the accused may obviously be obliged to respond with evidence that 'raises' or permits a reasonable doubt that he is guilty as charged. [Citations.]" (Gonzalez, supra, 51 Cal.3d at p. 1215.)
Nevertheless, we agree that the prosecutor misstated the law insofar as his remarks suggested to the jurors that "a mere conflict in the evidence" could never generate reasonable doubt, that the People had met their burden of proof if the evidence provided a single "reasonable explanation," and that defendant was guilty unless the jurors had a reasonable doubt. The prosecutor's remarks were misleading since the burden of proof beyond a reasonable doubt remains with the prosecution (In re Winship (1970) 397 U.S. 358, 364 [state must prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged"]), a reasonable doubt may arise where the prosecution fails to produce evidence sufficient to satisfy that burden (see Hill, supra, 17 Cal.4th at pp. 831-832) and jurors cannot rely on circumstantial evidence to find a defendant guilty if a reasonable inference can be drawn that a defendant is not guilty or does not have the requisite intent. (See People v. Watson (1956) 46 Cal.2d 818, 830 ["where circumstantial evidence is relied upon as proof of guilt to justify a conviction, the facts or circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion"]; see also People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [same rule applies as to circumstantial evidence of intent].)
In Centeno, the prosecutor's rebuttal argument "strongly implied that the People's burden was met if its theory was 'reasonable' in light of the facts supporting it." (Centeno, supra, 60 Cal.4th at p. 671.) The argument "left the jury with the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden." (Id. at p. 672.) In considering whether the challenged argument constituted prosecutorial misconduct in Centeno, the California Supreme Court recognized: "It is permissible to argue that the jury may reject impossible or unreasonable interpretations of the evidence and to so characterize a defense theory. [Citations.] It is permissible to urge that a jury may be convinced beyond a reasonable doubt even in the face of conflicting, incomplete, or partially inaccurate accounts. [Citations.]" (Ibid.) But "[i]t is not sufficient that the jury simply believe that a conclusion is reasonable." (Ibid.)
"The standard of proof is a measure of the jury's level of confidence." (Centeno, supra, 60 Cal.4th at p. 672.) A jury "must be convinced that all necessary facts have been proven beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 ['The government must prove beyond a reasonable doubt every element of a charged offense.'].)" (Ibid.) "[I]t is error for the prosecutor to suggest that a 'reasonable' account of the evidence satisfies the prosecutor's burden of proof." (Ibid.)
"It is likewise error to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.' [Citations.] It is, and remains, the prosecutor's burden to prove the case. If the defense chooses to produce evidence, the jury must, of course, consider it as part of the complete record before it. To that end, the prosecution can surely point out that interpretations proffered by the defense are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own." (Centeno, supra, 60 Cal.4th at p. 673.)
In rebuttal closing argument in Centeno, to illustrate the standard of proof, the prosecutor presented a hypothetical that utilized a visual aid (specifically, an outline of the State of California) to answer the question, "What state is this?" The Supreme Court stated: "The use of an iconic image like the shape of California or the Statue of Liberty, unrelated to the facts of the case, is a flawed way to demonstrate the process of proving guilt beyond a reasonable doubt. These types of images necessarily draw on the jurors' own knowledge rather than evidence presented at trial. They are immediately recognizable and irrefutable. Additionally, such demonstrations trivialize the deliberative process, essentially turning it into a game that encourages the jurors to guess or jump to a conclusion." (Centeno, supra, 60 Cal.4th at p. 669.) The Supreme Court determined the hypothetical was "misleading because it failed to accurately reflect the evidence in this case, which was far from definitive." (Id. at p. 670.)
The Supreme Court further explained: "The hypothetical presented the answer to that question as a given, based not on evidence received, but on the jurors' outside knowledge of what the geographical outline of California looks like. What occurred here was not the legitimate marshalling of evidence with charts outlining the facts or relating them to the legal concepts explained in the jury instructions. Instead the prosecutor offered a theoretical analogue, unrelated to the evidence, purporting to relate the exacting process of evaluating the case to answering a simple trivia question." (Id. at p. 671.)
In Centeno, the Supreme Court concluded: "[T]he prosecutor did not simply urge the jury to ' "accept the reasonable and reject the unreasonable" ' in evaluating the evidence before it. [Citation.] Rather, [the prosecutor] confounded the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Centeno, supra, 60 Cal.4th at p. 673.)
In resolving the defendant's ineffective assistance of counsel claim based on a failure to object to the prosecutor's argument and hypothetical in Centeno, the Supreme Court could "conceive of no reasonable tactical purpose for defense counsel's omission." (Centeno, supra, 60 Cal.4th at p. 676.) In assessing prejudice, the court observed: "There was no reason for the jury to reject the prosecutor's hypothetical. It did not directly contradict the trial court's instruction on proof beyond a reasonable doubt, but instead purported to illustrate that standard. The prosecutor introduced further confusion by suggesting that it was 'reasonable' to believe that defendant was guilty. Because there was no timely objection, the trial court did not admonish the jury to disregard the prosecutor's argument." (Ibid.) The court concluded that "[g]iven the closeness of the case and the lack of any corrective action, there is a reasonable probability that the prosecutor's argument caused one or more jurors to convict defendant based on a lesser standard than proof beyond a reasonable doubt." (Id. p. 677.)
In this case, as in Centeno, the prosecutor seemed to conflate "the concept of rejecting unreasonable inferences, with the standard of proof beyond a reasonable doubt" (Centeno, supra, 60 Cal.4th at p. 673). But, unlike Centeno, the prosecutor did not offer a profoundly misleading hypothetical to demonstrate how the jury should approach its decision-making task that did not plainly conflict with the court's instructions. It is noteworthy in this case that the prosecutor did at one point correctly define proof beyond a reasonable doubt and that he did not explicitly state defendant had the burden of raising a reasonable doubt. Moreover, the trial court explained the presumption of innocence, reasonable doubt, and the People's burden of proof at the beginning and at the end of the trial. It also gave specific instructions explaining the jurors' responsibility to decide the facts, to resolve conflicts in the evidence, and to find the intent element was not proved by circumstantial evidence under certain circumstances.
The United States Supreme Court has recognized that "arguments of counsel generally carry less weight with a jury than do instructions from the court" (Boyde v. California (1990) 494 U.S. 370, 384) since attorneys' arguments are "usually billed in advance to the jury as matters of argument . . . and are likely viewed as the statements of advocates" (ibid.) whereas the trial court's instructions are "viewed as definitive and binding statements of the law. [Citations.]" (Ibid.) In general, a prosecutor's misstatements of law in closing are "not to be judged as having the same force as an instruction from the court" (id. at pp. 384-385) and "must be judged in the context in which they are made. [Citations.]" (Id. at p. 385; see Gonzalez, supra, 51 Cal.3d at p. 1224, fn. 21.)
In general, "[w]e 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." (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8; see Gonzalez, supra, 51 Cal.3d at p. 1224, fn. 21 ["[J]uries generally understand that counsel's assertions are the 'statements of advocates.' "].) Absent evidence to the contrary, we generally presume that jurors "understand, follow, and apply the [court's] instructions to the facts of the case before them. [Citation.]" (People v. Hajek (2014) 58 Cal.4th 1144, 1229, abrogated on another ground by People v. Rangel (2016) 62 Cal.4th 1192, 1215- 1216.) Nothing in the record suggests that any juror did not understand or did not follow the court's instructions.
The questions for the witnesses posed by the jurors as permitted by the court and the mistrial on count 2 suggests their independent and thorough consideration of the evidence. Defendant has failed to show that there is a reasonable probability that the result of the proceeding would have been different had defense counsel objected to the portions of the prosecutor's closing argument that are now being challenged on appeal. (See Strickland, supra, 466 U.S. at p. 694.)
DISPOSITION
The judgment is reversed for the limited purpose of resentencing on counts 3 and 4 not inconsistent with former subdivision (g) of section 667.61.
/s/_________
ELIA, ACTING P.J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.