Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA043592, John Murphy, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Jose Antonio Gomez appeals from the judgment entered following his conviction by jury on count 1 – assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)) and court findings that he suffered four prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 11 years. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that on September 7, 2008, Stephen Keenan and his son Cameron were in the Lancaster apartment complex where they lived. The two lived in Keenan’s apartment, i.e., apartment No. 8. Keenan, who apparently was a Caucasian, wore a ponytail.
Keenan and Cameron saw two Caucasian males involved in a confrontation with Hispanic men and Black men who lived at apartment No. 6, where appellant also lived. One of the Caucasian males was a person named Red who was wearing a ponytail. Apartment No. 6 was located directly across from Keenan’s apartment. The two Caucasian men chased the group and were carrying a Mag flashlight and a police baton (which Keenan identified at the trial as People’s exhibit Nos. 6 & 7, respectively). The two Caucasian men and the group went around a corner, then, a few seconds later, the Caucasian men ran back with the group in pursuit and the group was carrying the above weapons.
About 8:30 or 9:00 p.m. on September 8, 2008, Keenan was a short distance from his apartment when about 12 to 15 people surrounded him. One or more persons in the group had a black Mag flashlight and a police baton. Appellant was a member of the group, and Keenan testified that appellant said something about the night before and about Stephen “with the weapons.” Keenan indicated he had not been involved in that incident. Appellant struck Keenan in the face with a Mag flashlight, and Keenan’s Bluetooth earpiece was knocked loose. Keenan fought back, and eventually escaped into his apartment. The group went near Keenan’s apartment, then went to their apartment. As a result of the attack, Keenan suffered great bodily injury and permanent disfigurement.
Cameron testified as follows. During the September 7, 2008, incident, the two Caucasians had a Mag flashlight and a police baton (People’s exhibit Nos. 6 & 7, respectively). On September 8, 2008, Cameron saw Keenan fighting his way out of the crowd. The crowd later disbursed and proceeded on a pathway leading from Cameron’s apartment to the crowd’s apartment. Cameron saw appellant in the crowd, and appellant was walking in front of it. Cameron saw appellant immediately after the incident, and Cameron was 95 percent certain of his identification of appellant.
Los Angeles County Sheriff’s Detective Steven Lehrman testified as follows. Lehrman was assigned the present case on September 17, 2008, and he determined a warrant had been issued for Salvador Serna at appellant’s address. On the above date, Lehrman showed Keenan a photographic lineup containing Serna’s photograph, which was photograph No. 3. Keenan selected photograph No. 1 (which depicted a person unrelated to this case) and Keenan indicated he was perhaps 80 to 90 percent certain that the person depicted was the assailant. On September 17, 2008, Lehrman showed the same photographic lineup to Cameron, who also selected photograph No. 1 as depicting Keenan’s assailant, and Cameron indicated he was 65 to 75 percent certain of his identification.
Keenan testified at trial that the photograph depicted a person who looked like a younger version of appellant without facial hair.
On September 18, 2008, Lehrman searched appellant’s apartment and recovered a Mag flashlight and a police baton (People’s exhibit Nos. 6 & 7, respectively). Appellant was present during the search. Mail addressed to appellant was in the apartment, as was mail addressed to Serna. Appellant waived his Miranda rights and told Lehrman that appellant had been sleeping when the attack occurred at 9:00 p.m. on September 8, 2008. Appellant also told Lehrman that Ginger Gomez was appellant’s wife.
Lehrman believed appellant looked very much like the person Keenan and Cameron had identified from the photographic lineup. On September 19, 2008, Lehrman presented to Keenan a photographic lineup containing appellant’s photograph. Keenan looked at the lineup for about three seconds and positively identified appellant’s photograph as depicting Keenan’s assailant.
On September 19, 2008, Lehrman went to appellant’s apartment to arrest him, but no one was there. Lehrman returned multiple times and, on one such occasion, the apartment appeared to be vacant. Appellant was arrested on September 29, 2008.
About the same time appellant was arrested, Keenan was arrested on unrelated charges and placed in a booking cell with appellant. Keenan testified appellant “started throwing out threats, that I will get mine, and this is how we get down, and that he will take care of it.” Appellant also stated he had “made his phone calls.” Keenan interpreted that statement as a threat.
At trial, Keenan positively identified appellant as his assailant. Keenan indicated he had seen appellant previously perhaps two or three times a week prior to the assault. Appellant had facial hair on September 8, 2008. The parties stipulated that Keenan testified he could not recall whether his assailant was wearing a shirt during the assault.
Prior to Keenan’s preliminary hearing testimony, he had received a phone call during which the caller told Keenan that he better “watch [his] ass.” Keenan testified as follows at the October 15, 2008, preliminary hearing. Appellant was a member of the group standing right in front of Keenan when Keenan was hit, but Keenan could not identify his assailant because there were too many people in the group. Keenan was on medication on the day of the incident and when he made his report to detectives. Keenan identified appellant from the second photographic lineup because Keenan recognized appellant from the apartments and not necessarily because Keenan was identifying appellant as Keenan’s attacker. At trial, Keenan testified as follows. Because Keenan was terrified, he did not identify appellant at the preliminary hearing as Keenan’s attacker. Keenan was so afraid to testify at the preliminary hearing that he wore a bulletproof vest and he was wearing one at the trial. At the time of the preliminary hearing, Keenan was still living in the apartment complex and appellant’s associates had access to it. At the time of the trial, Keenan did not live in the complex.
The parties also stipulated that Los Angeles County Sheriff’s Deputy McMahon testified at trial as follows. During McMahon’s September 11, 2008, interview of Aarica Walters, she told him that she saw a Hispanic male strike Keenan on the head with what she thought was a metal flashlight, and the male lived in apartment No. 6. Walters went to that apartment to retrieve Keenan’s Bluetooth device, contacted Keenan’s assailant, and the assailant gave the device to Walters. Walters was able to identify the assailant by the tattoos on his upper torso, but was unable to identify the tattoos because it was dark at the time of the incident.
The parties stipulated that nothing in McMahon’s report indicated anyone else had tattoos or that Walters was afraid. Prior to trial, Lehrman showed Walters the photographic lineup containing appellant’s photograph. Lehrman testified Walters looked at the lineup for a couple of seconds, looked back at Lehrman, then, “almost kind of in disgust, ” said, “I have to live here.” She told Lehrman that she did not recognize anyone in the lineup. The parties stipulated that Los Angeles County Sheriff’s Detective Ellis testified that during a September 16, 2008, interview, Walters told him that she did not know the name of the suspect but she was not intimidated by the suspect and his friends. At the trial, Walters testified that Keenan’s assailant hit him with a black Mag flashlight which she guessed was similar to one the prosecutor showed to her in court. She also saw a baton which was consistent in appearance with People’s exhibit No. 7. She could not identify appellant as Keenan’s attacker because it was dark and she was not wearing her glasses. Walters testified she told police that Keenan’s assailant had tattoos all over his chest and stomach.
Los Angeles County District Attorney Investigator Cindy Palm testified as follows. During the trial, Palm brought Walters to court and the two sat in the hallway. Palm eventually told Walters that Palm was leaving. A female approached Walters and said, “ ‘Thank you for coming.’ ” As Palm was preparing to leave, Walters asked Palm to stay because the female was the girlfriend of “the guy who smashed [Keenan].” The female who spoke with Walters was, at the time of Palm’s trial testimony, in the courtroom and located behind appellant. Walters indicated to Palm that Walters was afraid, and Walters said “they knew where she lived.” Lehrman testified appellant’s wife came to court every day. Lehrman also testified that, in his experience, it was common for victims and witnesses to be afraid of a defendant when others knew where the victims and witnesses lived.
Appellant concedes that Ginger Gomez (appellant’s wife) was the female who told Walters, “ ‘Thank you for coming.’ ”
2. Defense Evidence.
In defense, Steven Werth, who lived in the apartment complex, testified as follows. About 1:00 a.m. on September 7, 2008, Werth was on his porch when he observed a commotion between two Caucasian men, two African-American men, and other persons. One of the Caucasian men had long blond hair and was carrying a Mag flashlight. Appellant ran by Werth and headed towards a security booth. Security guards, then police, arrived shortly thereafter. Appellant was not otherwise involved in that incident.
Alternate Public Defender’s Office Investigator Victoria Tellez testified as follows. Tellez interviewed Walters on December 31, 2008, and, during the interview, Walters did not indicate she was afraid to talk about the incident. Walters did not mention anything to the effect “the individual” had tattoos composed of letters or numbers.
Tellez testified on February 11, 2009, that, on February 10, 2009, she interviewed Walters after Walters had testified at the trial. During that interview, Walters told Tellez that Walters asked Palm to stay with her, but Walters denied telling Palm “ ‘Don’t leave me alone. That’s the girlfriend of the guy who smashed Stephen Keenan’s head.” Tellez asked Walters to clarify Walters’s statement about the female being the girlfriend of the guy who smashed Keenan’s head. Walters indicated she had heard this information from Keenan. Walters told Tellez that Walters had never seen appellant before, appellant was not the person whom Walters had seen hurt Keenan, Walters was not afraid, and she had never said she was afraid.
ISSUES
Appellant claims (1) the prosecutor committed misconduct during jury argument and (2) appellant’s trial counsel provided ineffective assistance of counsel by failing to object to the prosecutor’s misconduct during closing argument.
DISCUSSION
1. The Prosecutor Did Not Urge the Jury to Consider Sentencing Issues.
a. Pertinent Facts.
The court preinstructed the jury that the remarks of counsel during jury argument were not evidence. During its final charge to the jury, the court instructed “[y]ou must reach your verdict without any consideration of punishment.”
During closing argument, the following occurred: “[The Prosecutor:] So you have two choices. You can vote not guilty. You vote not guilty what you’re doing is telling Stephen that we don’t believe what you said up there. We disbelieve what you said. You’re telling Cameron we don’t believe that you saw the defendant there at that location. You’re telling Aarica that even though you gave us the tattoos, even though you told the deputy and made the initial reports, we don’t believe you. [¶]... a not guilty verdict would tell Detective Lehrman you didn’t do your job properly. It would tell us that we brought the wrong case. You can do that. And you can vote not guilty, and you can let the defendant walk out those doors because that’s what a not guilty verdict will do. [¶] Or you can vote guilty. [¶]... [¶] [Appellant’s Counsel:] I’m going to object. It’s tugging at the jurors’ fears and emotions. [¶] The Court: Objection is overruled.”
b. Analysis.
A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such unfairness as to make the resulting conviction a denial of due process. Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. (People v. Tate (2010) 49 Cal.4th 635, 687.)
Generally speaking, a jury must consider only the law given by the trial court and the evidence admitted at the trial, and the jury is governed by the presumption of innocence. Accordingly, it is one thing to say that a jury, when deciding the issue of a defendant’s guilt or innocence, cannot properly consider the issue of penalty or punishment. Jury consideration of penalty or punishment involves improper consideration of a postconviction issue implicating sentencing proceedings, the burden of punishment, and, frequently, multiple, and sometimes complex, possible punishments. Moreover, consideration and imposition of the burden of punishment are the responsibilities of the court, not the jury, and a court discharges these responsibilities in connection with a convicted defendant as to whom the presumption of innocence is inapplicable.
The court, using CALCRIM Nos. 200 and 220, instructed the jury on these issues.
It is quite another thing to say that a jury, when deciding the issue of a defendant’s guilt or innocence, cannot properly consider that if they acquit the defendant, the defendant will “walk out those doors.” This statement does not invite jury consideration of additional law or evidence not presented at the trial. It does not invite jury consideration of a postconviction issue. It does not invite jury consideration of sentencing proceedings, the burden of punishment, dispositions involving multiple possible punishment consequences, or matters which the law commits to resolution by a court.
Instead, the statement essentially invites the jury to consider only (1) an acquittal, and thus, the termination of an adjudicatory proceeding pursuant to a decision on an issue (the defendant’s guilt or innocence) which the law commits to resolution by the jury, and (2) the single and inexorable fact, concomitant to an acquittal and not involving the burden of punishment, that the defendant’s liberty will no longer be burdened by said adjudicatory proceeding (a proceeding throughout which the defendant will have enjoyed a presumption of innocence) or any other criminal proceeding. Jurors know theirs is a solemn and weighty task. Appellant concedes “[j]urors know that a defendant will go free if they acquit him.” We see nothing deceptive, reprehensible, or unfair in conveying this commonplace to the jury.
During jury argument, counsel may state matters of common knowledge even if they are not in evidence. (People v. Hill (1998) 17 Cal.4th 800, 819.) Appellant cites no authority holding the prosecutor’s comment constituted misconduct, and all of appellant’s cited cases are distinguishable. The prosecutor’s comment might have been unnecessary or extraneous, but it did not appeal to the passions or prejudices of the jury. Nor did the prosecutor argue the jury should consider sentencing issues, or convict appellant to protect community values, preserve civil order, or deter future lawbreaking. No prosecutorial misconduct occurred. (See People v. Stitely (2005) 35 Cal.4th 514, 559-560.)
This includes cases in which the prosecutor’s argument implied future, post-trial dangerousness of the defendant, and cases like People v. Mendoza (1974) 37 Cal.App.3d 717 (Mendoza). Mendoza was a case in which the defendant met minors in public places, committed lewd acts upon them in his apartment, and the prosecutor urged the jury “ ‘to take [the defendant] off the streets, ’ ” (id. at p. 727) implying incarceration would follow conviction.
Even if the prosecutor’s comment constituted misconduct, it does not follow we must reverse the judgment. The challenged comment was brief and the jury did not explicitly express confusion about it. The court instructed the jury that they must consider only the law given by the trial court and the evidence admitted at the trial, and that the remarks of counsel during jury argument were not evidence. The court also instructed that the jury must reach their verdict without any consideration of punishment. The jury is presumed to have followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Our previous analysis supporting our conclusion that no misconduct occurred largely supports the conclusion that no prejudice resulted even if the challenged comment was misconduct.
Finally, Keenan positively identified appellant as Keenan’s assailant from a photographic lineup containing appellant’s photograph and at the trial. At the trial, Cameron identified appellant as among the group who had surrounded Keenan and through whom Keenan fought his way to safety, and Cameron was 95 percent certain of his identification. Walters indicated to Palm that the female who approached Walters in the courtroom hallway was the girlfriend of Keenan’s assailant, and appellant concedes the female was Ginger Gomez. Ginger Gomez was appellant’s wife. The jury reasonably could have concluded that inconsistencies in the respective eyewitnesses’ identification testimony were attributable to fear of retaliation.
The flashlight and baton recovered from apartment No. 6, where appellant lived, were the items used during the September 7, 2008, incident, and the baton was consistent with the one used during the September 8, 2008, incident. During the latter incident, one or more persons in the group had a black Mag flashlight and a police baton. When appellant and Keenan were in the booking cell, appellant made threats to Keenan which evidenced appellant’s consciousness of guilt. Walters told McMahon that Walters saw a Hispanic male strike Keenan on the head with what she thought was a metal flashlight, the man lived in apartment No. 6, and Keenan’s assailant gave her the Bluetooth device. Even if the challenged comment was prosecutorial misconduct, it was not prejudicial. (Cf. People v. Crew (2003) 31 Cal.4th 822, 839-840.)
The facts (1) the jury requested a copy of certain stipulations and requested readbacks of certain testimony, (2) the trial court, during jury deliberations, received a jury note indicating a single juror could not, at that time, decide whether to convict or acquit, and asking if that juror could be replaced, (3) a juror requested a readback of closing arguments (a request the court denied), and (4) the court reread a portion of the reasonable doubt instruction do not compel a contrary conclusion and are consistent with the actions of a conscientious jury. (See People v. Houston (2005) 130 Cal.App.4th 279, 301.)
2. Appellant Has Failed to Demonstrate His Trial Counsel Provided Ineffective Assistance of Counsel.
Appellant claims his trial counsel provided ineffective assistance of counsel by failing to preserve for appellate review (by objection and a request for a jury admonition) certain issues of alleged prosecutorial misconduct based on the prosecutor’s argument to the jury. We disagree.
There is no dispute appellant’s trial counsel failed to object to, and request a jury admonition as to, each of the challenged comments, quoted below. (We have quoted each challenged comment below, except that, where appellant cites only a portion of what we view as the pertinent context of the challenged comment, we quote below the challenged comment and its context, and italicize the challenged comment.)
At the outset, we note that, as to each of the challenged comments quoted below, the record sheds no light on why counsel failed to act in the manner challenged, counsel was not asked for an explanation, and we cannot say that there simply could have been no satisfactory explanation. Accordingly, on this ground alone, and as to each of the challenged comments quoted below, we reject appellant’s ineffective assistance claim (cf. People v. Slaughter (2002) 27 Cal.4th 1187, 1219-1220) and there is no need to repeat this analysis below as to each such challenged comment.
Moreover, when identifying why the prosecutor’s challenged comments below were misconduct, appellant does little more than claim in conclusory fashion that each comment constituted an appeal to the jury’s passions and prejudices. We therefore reject appellant’s ineffective assistance claim for the additional reason his arguments pertaining to it are raised perfunctorily (cf. People v. Zambrano (2007) 41 Cal.4th 1082, 1188) and there is no need to repeat this analysis below as to each such challenged comment. References below to the prosecutor’s comment are references to the prosecutor’s comment to the jury.
a. The Comment Concerning Appellant Was “Looking for Blood.”
Lehrman testified during direct examination to the effect (1) the present incident occurred at 9:00 p.m. on Monday, September 8, 2008, (2) appellant told Lehrman during an interview that appellant was asleep during the present incident, and (3) the night of September 8, 2008, was the opening night of Monday night football, and the Oakland Raiders were playing.
The prosecutor commented, “But if you [sic] reading between the lines, the defendant, he didn’t know the person who did it, he just knew what something [sic] took place and they had weapons, so now he’s after Stephen. It’s a Monday night. It’s 8:00 to 9:00, first NFL game of the season, the Raider game is on, and the defendant is looking for blood. That’s simply what it is. And he sees the wrong guy and he goes after him. (Italics added.)
Based on People v. Slaughter, supra, 27 Cal.4th at pp. 1219-1220, and the strong evidence of appellant’s guilt discussed above, we conclude appellant has failed to demonstrate ineffective assistance of counsel based on his trial court’s failure to object to, or request a jury admonition as to, the above challenged comment.
b. The Comment Concerning the Fact Appellant Was Intimidating.
The prosecutor commented, “Defendant is arrested on the 29th, and of all things to have happen, Mr. Keenan is also arrested for traffic tickets, if you can believe it, and they’re thrown in the... same holding area. All that’s separating him is a small little wall, and defendant is sitting out there yelling at Stephen. [¶] And you can see him, the way he’s looking. I mean, he’s not a peaceful guy. I mean he’s sitting there, he’s intimidating. Not only did he hit Stephen and victimize him there, now he’s going to victimize him again by saying, ‘I’m going to do whatever I’m going to do to you.’ [¶]... it was threatening. And Stephen has to be victimized over. [¶] Now Stephen is angry... [¶]... [¶] The People that are supposed to kind of protect him have just put him in the same cell with the defendant, so he’s being threatened and it’s all happening all over again.” (Italics added.)
To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. (People v. Dykes (2009) 46 Cal.4th 731, 771-772.) Viewing the challenged prosecutorial comment in light of the other evidence presented at the trial and in light of the context of the comment (including the prosecutor’s repeated use of present tense verbs to refer to past events), we believe it is reasonably likely the jury understood that the prosecutor, by the challenged comment, was referring to appellant when he was in custody (not when he was in the courtroom during the trial). Appellant has failed to show a reasonable likelihood the jury understood or applied the complained-of comment in an improper or erroneous manner, or therefore, that the challenged comment was misconduct.
c. The Comments Concerning Keenan Being a “White Guy.”
During argument, the prosecutor commented that Stephen “has to relive how brutally how he was attacked for no reason other than that he’s a white guy with long hair.” (Sic.) There was substantial evidence as follows. Hispanic and African-American men who lived in apartment No. 6, where appellant lived, were involved in a confrontation with two Caucasian men on September 7, 2008, one of whom wore a ponytail. On September 8, 2008, appellant, in a group of 12 to 15 men, struck Keenan with a Mag flashlight. Keenan, who wore a ponytail, apparently was a Caucasian, but he had not been involved in the September 7, 2008, incident. However, at least some of the 12 to 15 men involved in the September 8, 2008, incident were associated with apartment No. 6. During the September 8, 2008, incident, appellant said something about the night before and about Stephen “with the weapons.”
The challenged comment of the prosecutor constituted fair comment on the evidence, as the comment properly suggested (1) appellant assaulted Keenan because Keenan was Caucasian, wore a ponytail, and thus looked like (and may have been confused for) Red, and (2) the assault was racially motivated. The prosecutor did not improperly refer to race or appeal to racial prejudice of the jury. Appellant has failed to demonstrate the comment was misconduct.
d. The Comments Concerning Keenan Being “One of Us.”
The prosecutor commented, “And you know what? Stephen is like you and I. He is like us. He’s not a real sophisticated guy. He’s not some [Nobel] laureate. He’s not the most articulate guy. He’s like us. He’s like when I’m doing the direct testimony, I’m not the most articulate guy. But he’s one of us. (Italics added.) The challenged argument of the prosecutor constituted fair comment on the evidence, and there is no reasonable likelihood the jury understood the prosecutor to refer to race. Parenthetically, we note appellant has failed to demonstrate from the record the racial composition of the jury, and apparently invites us simply to assume that the jury included Caucasians. No prosecutorial misconduct occurred.
e. The Comments Concerning Appellant Being an “Intimidating Guy.”
The prosecutor argued to the effect that Walters was afraid to identify appellant as Keenan’s assailant. The prosecutor later commented, “The defendant is an intimidating guy. You can’t just come out and I.D. someone like the defendant and expect everything is going to be okay if that’s where you live.”The prosecutor’s comment was fair comment on the evidence based on Keenan’s experience with appellant while the two were in jail. No prosecutorial misconduct occurred.
f. The Comments Concerning Appellant’s Demeanor.
The prosecutor commented, “Defense counsel says I’m asking you to judge the defendant on the way he looks. I’m not. Those tattoos, did you ever hear me say that you should judge him on those tattoos? The tattoos are... only relevant for his I.D. That’s the only reason they’re relevant. [¶] One additional reason, and this is just because defense is arguing that all of a sudden, now Stephen Keenan is pinning something on the wrong guy. I mean, would anyone in their right mind say, ‘hey, I’m going to pin something on this guy’? I mean, that’s the other reason. [¶] If you’re going to make up a story about you getting hit, why are you going to pick him? Aren’t you going to pick the toughest guy in the schoolyard to blame? [Sic.] That’s ridiculous. [¶] So, really, the only reason his tattoos are in any sense relevant is for the I.D. issue. When I say look at him, look at his demeanor. Because his demeanor reflects. You can take and read the jury instructions you can look at his demeanor as he sits there. You can ask yourself, what kind of demeanor... does he have? And that’s perfectly permissible. [¶] [Appellant’s Counsel:] I’m going to object, your Honor. Misstates the law. [¶] The Court: The objection is sustained.”
Based on People v. Slaughter, supra, 27 Cal.4th at pp. 1219-1220, and the strong evidence of appellant’s guilt discussed above, we conclude appellant has failed to demonstrate ineffective assistance of counsel based on his trial court’s failure to object to, or request a jury admonition as to, the above challenged comment.
g. The Comments Concerning Predators and That Keenan “Was White.”
The prosecutor commented, “I’m going to end this right now, but I just want to talk about prey and predators. In our society there is prey in the animal kingdom. There is rabbits, there is [gophers]. And then there are predators. There are foxes and there’s hawks. Stephen Keenan is prey. [¶]... life probably hasn’t been good to Stephen. You can tell when he’s up there. You look at this guy and your [heartstrings] tug for Stephen because he’s prey. And we know that. We know that people take advantage of him. People may beat him up. [¶] And there are predators. This man is a predator (indicating). He attacks an innocent person just because the guy was White and had long hair. That doesn’t even matter to him. He just wanted to attack somebody.” (Sic.) The challenged comment constituted fair comment on the evidence for the reasons discussed at 2.c., above. Moreover, the prosecutor’s likening of appellant to a predatory animal did not invoke racial overtones. (Cf. People v. Duncan (1991) 53 Cal.3d 955, 977.)
Finally, as to all of the above instances of alleged ineffective assistance of counsel, there was, as mentioned, strong evidence of appellant’s guilt. No prejudicial constitutionally-deficient representation occurred. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.