Opinion
A115293
9-19-2008
THE PEOPLE, Plaintiff and Respondent, v. JEREME SCOTT GROMER, Defendant and Appellant.
Not to be Published
Defendant Jereme Gromer was found guilty by jury trial of felony corporal injury to a child (Pen. Code, § 273d, subd. (a)—count 1) and felony child abuse (§ 273a, subd. (a)—count 2) in connection with injuries inflicted on his 15-day-old son. The jury also found as to both counts that defendant had personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (d). On appeal, defendant claims that (1) the trial court violated his Sixth Amendment rights by imposing the upper term for both the substantive offense and the enhancement, (2) the court also failed to properly exercise its discretion in imposing the upper term, (3) the prosecutor committed prejudicial misconduct during rebuttal argument, and (4) defendant was deprived of effective assistance of counsel when his trial attorney failed to properly object to the prosecutors misconduct. We affirm the judgment.
All statutory references are to the Penal Code.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
On July 28, 2002, defendant accompanied his wife K.G. (mother), their five-year-old daughter (sister), and their 15-day-old son (the victim) to a fast-food restaurant around 4:00 p.m. The victim drank about two ounces of formula without any problem while they were at the restaurant, and he appeared normal. The family returned home around 5:00 or 5:30 p.m., and mother and sister left shortly thereafter to go shopping. They were gone for about an hour. When mother and sister returned from the store, defendant told mother that he and the victim had taken a bath together, and that the victim had pooped on him in the bathtub. Defendant and mother thought that the incident was amusing, and they laughed about it.
Later the same evening, the victims appearance changed. Mother noticed "yellow mucousy stuff just drooling out of his mouth, something that would not have been normal." The victim turned an "ashy-gray color," and his abdomen became "very hard." He would not accept a bottle when defendant and mother tried to feed him. Defendant and mother consulted with a friend who was a volunteer firefighter with the Suisun City fire department; the friend told them that it appeared that the victim was constipated, but that they should take him to the hospital because "he didnt look good."
Defendant and mother took the victim to North Bay Hospital in Fairfield around 11:00 p.m. The victim was airlifted to Childrens Hospital in Oakland early the next morning because, according to mother, the providers at North Bay "didnt know what was going on" and did not know how to treat him. A surgeon at Childrens Hospital evaluated the victim around 4:00 or 4:30 a.m. and determined that he needed to undergo emergency surgery, which took place around 6:00 a.m. on July 29. Before the surgery, doctors were concerned that the victims intestines were blocked. During the surgery, doctors discovered a hole in the victims stomach; they later learned that he had three rib fractures. Doctors theorized that the victim sustained traumatic injuries that broke his ribs and perforated his stomach, and that he sustained those injuries about 12 to 15 hours before he underwent surgery (around the time defendant was alone with him). The surgeon testified that the stomach perforation almost certainly occurred after the victim ate at 4:00 p.m. on July 28, because he would not have been able to eat normally with that type of injury.
The surgeon who operated on the victim also testified that she spoke with defendant after the operation, and asked if the victim had suffered any trauma that could have caused his injuries. Defendant answered "no," and he also asked if the victim would have been endangered had there been a trauma that was not reported to the surgeon. The surgeon told defendant that the treatment would have been the same, because the victim was taken to surgery so quickly.
Dr. James Crawford, the medical director of the center for child protection at Childrens Hospital, spoke with defendant the day after the victim underwent surgery. When asked whether he could think of anything that might have caused the victim to get hurt or sick, defendant responded, " `no. " About a week and a half after the victim underwent surgery, defendant reported that he had dropped the victim as he was getting out of the bathtub. Dr. Crawford opined that defendants description of the victims fall could not account for his injuries.
Defendant was interviewed by Suisun City police on August 1, 2002, and again on August 8. Defendant gave different accounts about the victims alleged fall in the bathroom during the two interviews, changing details about where the victim hit his head and when he began showing the effects of his injuries.
Defendant had another son, D.G., who died on April 28, 2000, in Marin County when he was about eight weeks old. X-rays taken before D.G.s death that were reviewed after his death revealed that the infant had suffered multiple rib fractures, which could have been caused by squeezing him with "a large amount of force." This was consistent with other medical issues D.G. suffered during his life, such as bloody stools, blood coming from his mouth, a hemorrhage in his eye, and abnormal liver functions. Investigators at first could not determine a cause of death; however, the death was treated as a homicide in 2002 after the victim in this case was injured in the same way that D.G. was.
Defendant was arrested and charged by information with felony corporal injury to a child (§ 273d, subd. (a)) and felony child abuse (§ 273a, subd. (a)), with allegations as to each count that defendant had personally inflicted great bodily injury (§ 12022.7, subd. (d)). A jury found defendant guilty as charged, and found the allegations true.
As discussed more fully below, defendant filed a motion for a new trial, arguing that the prosecutor committed prejudicial misconduct when she commented on his failure to testify in his own defense, in violation of Griffin v. California (1965) 380 U.S. 609 (Griffin), and that the prosecutor made other improper remarks. The trial court denied the motion.
The People submitted a sentencing brief arguing that there were three factors in aggravation: (1) the crime involved great violence (Cal. Rules of Court, rule 4.421(a)(1)), (2) the victim was particularly vulnerable (rule 4.421(a)(3)), and (3) defendant took advantage of a position of trust or confidence to commit the offense (rule 4.421(a)(11)). The trial court received a probation report that also noted the victims particular vulnerability (rule 4.421(a)(3)), and it included another factor in aggravation: defendant had engaged in violent conduct indicating a serious danger to society (rule 4.421(b)(1)). Both the Peoples sentencing brief and the probation report acknowledged that there was one factor in mitigation: defendant had no prior criminal record. (Rule 4.423(b)(1).)
All subsequent rule references are to the California Rules of Court.
At the sentencing hearing on August 9, 2006, the trial court focused on the fact that defendant remained silent about the victims injuries after the infant started to show signs of distress, and even after he was taken to the hospital. The court stated: "The Court has considered these as factors in aggravation[:] the withholding of potentially life-saving information and the knowledge that another child [D.G.] had died from similar circumstances, not necessarily as to the cause of death, but that another child had died with these injuries. [¶] This was a vulnerable child. The baby was 16 months [sic] old. He was tiny, unable to speak, unable to resist. And the defendant was his father. A father who had already lost a child, who had been grieving over that child but who, nevertheless, for some reason which we dont know, decided, when he was alone with this baby, to pick the baby up and to squeeze until the babys ribs broke. [¶] The Court has weighed these factors in aggravation against the factor in mitigation most significant, which is that the defendant has no prior record. And under California law, the Court is required to weigh the factors in aggravation and factors in mitigation, and if the factors in aggravation outweigh the factors in mitigation, then the Court is required by law to impose the aggravated term." The court then sentenced defendant to the upper term of six years for "the charge contained in Count 1."
The trial court identified the offense as a "violation of Penal Code Section 273a, parentheses (a) [felony child abuse], the charge contained in Count 1." In fact, felony child abuse was charged in count 2, and corporal injury to a child (§ 273d, subd. (a)) was charged in count 1. The minutes of sentencing and abstract of judgment reflect the correct count numbers, indicating that defendant was sentenced to the upper term on count 2 (felony child abuse). As defendant acknowledges, the courts error is immaterial, because both offenses have the same triad for sentencing: two, four or six years. (§§ 273a, subd. (a), 273d, subd. (a).) Punishment for the other offense and its enhancement was stayed pursuant to section 654.
As for sentencing on the enhancement, the trial court stated that "the Court notes that in this case the child suffered a fractured rib, at least one, if not more; that the rib punctured the stomach; that sepsis began, infection began taking over the childs body. He approached death. The doctors did not know if they would be able to save his life. He had to undergo major surgery." The court imposed the upper term of six years, for a total prison term of 12 years. This timely appeal followed.
II.
DISCUSSION
A. No Reversible Error in Sentencing.
Defendant argues that the trial courts imposition of the upper term for both his conviction on the substantive offense and the great bodily injury enhancement violated his Sixth Amendment right to a jury trial as set forth in Cunningham v. California (2007) 549 U.S. 270 (Cunningham). He also argues that the trial court imposed the upper terms under the mistaken belief that it did not retain the discretion to impose the middle terms. As to the first argument, we conclude that the Cunningham error was harmless. As to the second argument, we conclude that it was waived by defendants failure to object in the trial court. " `Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. " (Blakely v. Washington (2004) 542 U.S. 296, 301, quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi).) Cunningham held that Californias then-existing determinate sentencing law violated a defendants Sixth Amendment right to a jury trial because it assigned to the trial judge, not the jury, the authority to find facts that exposed a defendant to an upper term sentence. (Cunningham, supra, 127 S.Ct. at p. 860.) Our Supreme Court subsequently held that "so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (People v. Black (2007) 41 Cal.4th 799, 813.)
We agree with defendant that he did not waive his ability to raise this issue on appeal by failing to object below. Objecting would have been futile in light of the fact that at the time of sentencing, the trial court was bound by People v. Black (2005) 35 Cal.4th 1238, which upheld Californias determinate sentencing scheme. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).)
Here, defendant had no prior convictions. Although the trial court did not specifically identify as such the aggravating factors it relied on in sentencing defendant to the upper term on the substantive offense, it appears that it relied on the vulnerability of the victim (rule 4.421(a)(3)), defendants violation of his position of confidence and trust (rule 4.421(a)(11)), and his "high degree of . . . callousness" in failing to alert medical workers to the victims injury (rule 4.421(a)(1)). In sentencing defendant to the upper term on the enhancement, it appears that the trial court likewise relied on the fact that the crime involved a great deal of callousness, cruelty or viciousness. (Rule 4.421(a)(1).) In order for the trial court to find true any of these aggravating factors (or any of the other aggravating factors raised in the Peoples sentencing brief and in the probation report), the court necessarily engaged in additional factfinding beyond the facts found true by the jury. Because these factors were neither admitted by defendant nor found true by a jury beyond a reasonable doubt, they cannot increase defendants statutory maximum punishment beyond the presumptive midterm sentence. (Cunningham, supra, 127 S.Ct. at pp. 863-864.)
We disagree with the Attorney General that "the aggravating circumstances that [the victim] was particularly vulnerable due to his age and that appellant took advantage of a position of trust were inherent in the jurys finding that appellant committed child abuse and corporal injury on a child and personally inflicted great bodily injury." The victims particular vulnerability and defendants position of trust were not elements of either the substantive offense or the enhancement, and were not necessarily "inherent" in the jurys finding. (People v. Zamarron (1994) 30 Cal.App.4th 865, 872 [fact is aggravating if it makes conduct distinctively worse than it otherwise would have been].)
In Sandoval, supra, 41 Cal.4th at page 838, the Supreme Court concluded that the denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). "[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Sandoval at p. 839.) Respondent argues that any Cunningham error was harmless here, because there is no question that the jury would have found that the victim was particularly vulnerable (rule 4.421(a)(3)), or that defendant violated a position of trust (rule 4.421(a)(11)). Respondent does not argue that beyond a reasonable doubt any other aggravating factor relied upon by the trial court would have been found true by the jury.
Defendants opening brief was filed before the Supreme Court decided Sandoval, which disposes of many of defendants arguments. For example, Sandoval held that Cunningham error is subject to harmless error analysis and does not require reversal per se as defendant argues. (Sandoval, supra, 41 Cal.4th at p. 838.) The Supreme Court also concluded that aggravating factors need not be charged in the accusatory pleading, as defendant claims. (Id. at pp. 848-849.) The proper remedy for any Cunningham error not found to be harmless is to remand the case to the trial court for resentencing consistent with amendments to the determinate sentencing law adopted by the Legislature after Cunningham. (Sandoval, supra, at p. 846.) The proper remedy is not, as defendant argues, to remand for automatic imposition of the middle or lower term.
We conclude that a jury unquestionably would have found true the aggravating factor that the victim, who was 15 days old at the time of his injuries, was particularly vulnerable. (Rule 4.421(a)(3); People v. Webber (1991) 228 Cal.App.3d 1146, 1170 [" `Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendants criminal act. [Citation.]"].) Sandoval stressed that "a clear-cut instance of victim vulnerability" may exist where a victim is "very young . . . or otherwise obviously and indisputably vulnerable." (Sandoval, supra, 41 Cal.4th at p. 842, italics added.)
Defendant argues that the court was not permitted to use the victims vulnerability as an aggravating factor (at least as to the sentencing on the enhancement), because the victims tender age (and thus vulnerability) was an element of the great bodily injury enhancement for injury to a child under the age of five (§ 12022.7, subd. (d)). Although it is true that a fact that is an element of a crime may not be used to impose the upper term (rule 4.420(d)), defendant waived this objection by not raising it in the trial court. (People v. Scott (1994) 9 Cal. 4th 331, 354 (Scott).) In any event, it lacks merit. It is generally true that "where the victims age is an element of the offense, the court may not cite the victims vulnerability due to being that age as a reason to impose the aggravated term." (People v. Alvarado (2001) 87 Cal.App.4th 178, 195.) Courts have recognized, however, that "[e]xtreme youth within the given age range" may make a victim " `particularly vulnerable in relation to others within the age range" where "dependency or fear" also is involved and stated on the record as the basis for the vulnerability. (People v. Ginese (1981) 121 Cal.App.3d 468, 477.) Here, the extremely young victim was unquestionably dependent on defendant—his father—and the trial court stated on the record that defendant abused this familial relationship by staying silent rather than alerting medical providers about the victims life-threatening injuries. (People v. Clark (1992) 12 Cal.App.4th 663, 666 [abuse of parental relationship falls under sentencing category of victims vulnerability and violation of position of trust and can be aggravating factor even where age of victim is element of a crime]; People v. Garcia (1983) 147 Cal.App.3d 1103, 1106 ["It is difficult for us to conceive of a circumstance wherein a child would be more vulnerable to such an offense than when the attack was perpetrated by a person entrusted with the victims supervision or control."].) We find beyond a reasonable doubt that had the issues been presented to the jury, jurors would have found the aggravating circumstances of the victims vulnerability and defendants violation of a position of trust true.
The statute provides: "Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years." (§ 12022.7, subd. (d).) Although not raised by either party, we note that the jury was actually instructed on the elements of section 12022.7, subdivision (a), which provides that "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Any error in instructing the jury was harmless, however, because both subdivisions require a finding of "great bodily injury." The only difference is that the jury find for purposes of subdivision (d) that the injury be inflicted on a "child under the age of five years," a fact that was reflected in the jury verdict form and which was uncontradicted in any event.
Defendant also argues that the trial court erred by failing to properly exercise its sentencing discretion. Before sentencing defendant to the upper term on the substantive offense, the trial court stated, "[U]nder California law, the Court is required to weigh the factors in aggravation and factors in mitigation, and if the factors in aggravation outweigh the factors in mitigation, then the Court is required by law to impose the aggravated term. [¶] This Court concludes that, based upon all the facts presented in this case, that the factors in aggravation significantly outweigh the factors in mitigation. Therefore, . . . the Court will sentence the defendant to the high term of six years." (Italics added.) Defendant argues that the trial court misstated the law, because even though it determined that aggravating factors outweighed mitigating factors, it retained the choice of imposing the middle term. (People v. Myers (1983) 148 Cal.App.3d 699, 704 [trial court has discretion to impose middle term even where it finds that aggravating circumstances outweigh mitigating factors].) Claims of error relating to sentences "which, though otherwise permitted by law, were imposed in a procedurally or factually flawed manner" are waived on appeal if not first raised in the trial court. (Scott, supra, 9 Cal.4th at p. 354.) Defendant waived this issue by not objecting on this basis in the trial court. (Ibid.)
B. No Prejudicial Prosecutorial Misconduct.
1. Background.
During defendants closing argument, defense counsel stated, "What this comes down to in our view is a dispute between circumstantial evidence. There is no—in our view, any direct evidence proving Mr. Gromers guilt in this matter. It is all circumstantial evidence. And as I say, it is a contest between circumstantial evidence."
In her rebuttal argument, the prosecutor acknowledged that "this is a circumstantial evidence case." She then argued, without objection, "Of course, its a circumstantial evidence case. [¶] This is something that happened where two people were involved, [the victim] and the defendant. There was nobody else around, and we didnt hear from the defendant. [The victim] was a baby, so we have to prove this case through medical experts, and through the defendants statements that he gave, and through [mothers] statements as well." (Italics added.)
Toward the end of the prosecutors rebuttal argument, she stated: "I want to talk about beyond a reasonable doubt, Ladies and Gentlemen. When youre back there thinking about whether the defendant is guilty, think about this. If the defendant quote, `spreads his seed, as he uses his crude word, and has another baby boy, do you want him to have that baby boy in his care or would you be —" At that point, the trial court sustained defendants objection to that line of argument. Defendant did not ask that the trial court admonish the jury.
The jury was instructed that a defendant in a criminal trial has a constitutional right not to testify, and that no inference may be drawn from the fact that a defendant does not testify. (CALJIC No. 2.60.) Jurors likewise were instructed that no lack of testimony on defendants part will make up for any failure of proof by the People so as to support a finding against him on any essential element. (CALJIC No. 2.61.)
Following defendants conviction, defendant filed a motion for a new trial, arguing that the prosecutor committed misconduct during rebuttal argument. Specifically, he argued that the prosecutors remark that "we didnt hear from the defendant" violated his right not to have the prosecution comment on his Fifth Amendment right to remain silent at trial, as set forth in Griffin, supra, 380 U.S. 609. He also argued that the prosecutors comment that jurors were to think about what would happen if defendant " `spread[] his seed " and had another baby inappropriately appealed to the passions of the jury.
Section 1181, subdivision (5) provides that the trial court may grant a new trial where the district attorney has committed prejudicial misconduct during a jury trial. An order denying a motion for a new trial "is not independently appealable [citations]; instead, the grounds for the unsuccessful motion are assessed on appeal from the underlying final judgment . . . ." (People v. Ault (2004) 33 Cal.4th 1250, 1261.)
The trial court found that the prosecutors comment on defendants failure to testify was improper, but that the remark was not prejudicial in light of the strength of the prosecutions case. In denying the motion for a new trial, the trial court concluded: "I am satisfied that [defendant] received a fair trial; and that there is nothing that would justify re-trying this case. So I do not find any prejudicial misconduct by the prosecution . . . ."
2. Analysis.
In a supplemental opening brief, defendant again argued that the prosecutor committed prejudicial misconduct. As respondent argues, in order to preserve for appeal a claim of prosecutorial misconduct (including alleged Griffin error), "a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553-554.) Defendants failure to object below based on Griffin, and his failure to request an admonition following his objection to the prosecutors argument about children defendant may have in the future, waived any argument regarding prosecutorial misconduct. Because defendant also asserts a claim of ineffective assistance of counsel based on his trial attorneys handling of the alleged incidents of prosecutorial misconduct, we nonetheless proceed to address the merits of each claim.
After defendant filed his opening brief and respondent filed its brief, the First District Appellate Project notified this court that defendants appellate counsel was seriously ill and unable to prepare a reply brief. The new attorney appointed to represent defendant sought permission to file a supplemental brief to raise issues not addressed in the original opening brief. This court granted defendants request on April 2, 2008, and both parties filed supplemental briefs.
a. No reversible Griffin error.
It is well settled that the Fifth Amendment forbids comment by the prosecution on an accuseds failure to testify at trial. (Griffin, supra, 380 U.S. at p. 615; People v. Vargas (1973) 9 Cal.3d 470, 475 (Vargas).) " `Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. " (People v. Hovey (1988) 44 Cal.3d 543, 572.) We agree with the trial court that the prosecutors comment that "we didnt hear from the defendant" was an impermissible comment on defendants failure to testify. (Griffin, supra, 380 U.S. at p. 615.) The comment indirectly referred to defendants constitutionally protected right not to take the stand.
The applicable test for determining whether an error which violates federal constitutional principles is reversible is set forth in Chapman, supra, 386 U.S. 18, which held that "before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (Id. at p. 24 [Griffin error not harmless].) "[I]n determining whether prejudicial Griffin error has occurred, `we must focus upon the extent to which the comment itself might have increased the jurys inclination to treat the defendants silence as an indication of his guilt. The risk that a comment will have this effect may become considerable if either the court [fn. omitted] or the prosecution [fn. omitted] "solemnizes the silence of the accused into evidence against him" . . . by telling the jury "that from the failure of [the defendant] to testify . . . the inferences from the facts in evidence [should] be drawn in favor of the State." . . . A forbidden comment, however, is less likely to affect the "substantial rights" of a defendant . . . if that comment merely notes the defendants silence and includes no suggestion that, among the various inferences which might be drawn therefrom, those unfavorable to the defendant are the more probable. " (Vargas, supra, 9 Cal.3d at p. 478, quoting People v. Modesto (1967) 66 Cal.2d 695, 713; see also People v. Morse (1969) 70 Cal.2d 711, 728.)
We find this case similar to Vargas, supra, 9 Cal.3d 470. There, a prosecutor argued during rebuttal: "`[T]here is no evidence whatsoever to contradict the fact that [a witness] saw [defendants] over [the victim]. And there is no denial at all that they were there [robbing the victim]. The defendants are guilty beyond any reasonable doubt . . . . " (Vargas, supra, 9 Cal.3d at p. 474.) The court concluded that Griffin error was committed, but that the error was harmless beyond a reasonable doubt. (Vargas, supra, at pp. 476, 481.) The court noted that the prosecutors remark "was brief and mild, and amounted to no more than an indirect comment upon defendants failure to testify without suggesting that an inference of guilt should be drawn therefrom." (Id. at p. 479.) The court also observed that "cases which have considered the prejudicial effect of errors similar to those committed in the instant case almost uniformly have found those errors to be harmless." (Id. at pp. 479-480 & cases cited therein.) We likewise conclude that the error here was harmless. The prosecutors remark "was brief and mild," and only indirectly commented on defendants failure to testify without suggesting that jurors should draw an inference of guilt therefrom. (Vargas, supra, 9 Cal.3d at p. 479.)
In arguing that the prosecutors comments in this case were " `indirect, brief and mild, " respondent cites People v. Bradley (2006) 142 Cal.App.4th 247, 268-269. The Supreme Court granted review in Bradley on December 13, 2006 (S146985), nearly a year and a half before respondent filed the brief in which it was cited. We remind counsel to check the publication status of cited cases before filing briefs. (Rules 8.1105(e)(1) [opinion no longer considered published if Supreme Court grants review], 8.1115(a) [unpublished opinion must not be cited by a party].)
Defendant repeatedly highlights that the comments made in this case were similar to ones made in Griffin, where the prosecutor argued, " `These things [defendant] has not seen fit to take the stand and deny or explain. [¶] `And in the whole world, if anybody would know, this defendant would know. [¶] `Essie May is dead she cant tell you her side of the story. The defendant wont. " (Griffin, supra, 380 U.S. at p. 611.) Griffin is distinguishable, however, because there, the jury was erroneously instructed that it was permitted to take into consideration defendants failure to testify. (Id. at pp. 610, 612-613.) Here, by contrast, the jury was correctly instructed that no inference may be drawn from defendants failure to testify. There was certainly no "machine-gun repetition of a denial of constitutional rights, designed and calculated to make [defendants] version of the evidence worthless," as there was in Chapman, supra, 386 U.S. at page 26.
b. Remarks about harm to future children.
Defendant also argues that the prosecutors remark about the safety of any child that defendant may have in the future improperly appealed to the passions of the jury. (People v. Cornwell (2005) 37 Cal.4th 50, 92 [improper for prosecutor to appeal to passion or prejudice of jury].) He also claims that the comment impermissibly referred to facts not in evidence and was an appeal to the jury to take punishment into consideration. (People v. Mendoza (1974) 37 Cal.App.3d 717, 725-727 [prosecutor not permitted to focus on facts not in evidence or argue that jury should take defendant " `off the streets "].) When a claim of prosecutorial misconduct focuses on comments made by a prosecutor to 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." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales); see also People v. Cox (2003) 30 Cal.4th 916, 952 [crucial element in prosecutorial misconduct claim is potential injury to the defendant].) "Isolated passages of a prosecutors argument, billed in advance to the jury as a matter of opinion not of evidence, do not reach the same proportions [as `[t]he "consistent and repeated misrepresentation" of a dramatic exhibit in evidence]." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646.)
Defendant claims that the prosecutors argument "distracted the jurors from attention to evidence of appellants conduct proven at trial and directed them toward fear of conduct in the future," inappropriately focused the jury on possible punishment, and "urged the jurors to supplant their application of the standard of proof beyond a reasonable doubt with their fear of what might happen if they entertained such reasonable doubt." This is an overstatement. To be sure, "the prosecutors arguments were less than ideal." (Morales, supra, 25 Cal.4th at p. 47.) The prosecutor apparently was trying to focus the jurors on potential future harm to hypothetical future offspring of defendant, rather than on the evidence presented in this case. We emphasize, however, that the prosecutor was not able to finish her argument, because the trial court sustained defendants objection to it. Her single comment, when viewed in the context of a trial that spanned 13 days and included testimony from several witnesses who stated that the victim was injured during a period of time when defendant was alone with him and suffered injuries similar to fatal ones suffered by another son of defendant, leads us to "find no reasonable likelihood that the prosecutors arguments misled the jury in an objectionable fashion—i.e., so as to improperly convict him . . . ." (Ibid.)
Even assuming that the prosecutors remark was improper, it was harmless. "[A] criminal conviction is not to be lightly overturned on the basis of a prosecutors comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutors conduct affected the fairness of the trial." (United States v. Young (1985) 470 U.S. 1, 11.) Defendant was not denied a fair trial.
"Moreover, we presume that the jury relied on the instructions, not the arguments, in convicting defendant." (Morales, supra, 25 Cal.4th at p. 47.) Here, the jury was correctly instructed that statements made by attorneys are not evidence (CALJIC No. 1.02), that the prosecution bore the burden of proving defendant guilty beyond a reasonable doubt (CALJIC No. 2.90), and that jurors were not to consider the subject of penalty or punishment during deliberations (CALJIC No. 17.42). Any possible confusion created by the prosecutors remark was effectively countered by the instructions given to the jury.
C. No Ineffective Assistance of Counsel.
Defendant requests that in the event we conclude that his trial attorneys failure to object to the prosecutors Griffin violation and failure to request an admonition after the trial court sustained an objection to the prosecutors argument regarding harm to any future sons of defendant waived appellate review of the issues, we should conclude that his trial attorney was ineffective for failing to object and request an admonition. In order to show ineffective assistance of counsel, defendant must show both that counsels performance was deficient and that the performance prejudiced defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687.) Having concluded that neither instance of alleged prosecutorial misconduct could have led to the improper conviction of defendant, we likewise reject defendants ineffective assistance of counsel claim.
We first emphasize that during the hearing on defendants motion for a new trial, defendants trial counsel offered a legitimate tactical reason for failing to object to the Griffin violation: he did not want to call attention to defendants failure to testify. Although this reason was not offered for his failure to request an admonishment for the prosecutors argument regarding possible future harm to any future son defendant may have, arguably counsel was concerned that an admonishment would call attention to that issue as well. Counsels performance was not deficient. (Strickland v. Washington, supra, 466 at p. 687.)
Even if trial counsels performance was deficient, defendant has failed to show that he was prejudiced. This case is similar to People v. Mesa (2006) 144 Cal.App.4th 1000, 1007, which held that defendant waived the assertion of Griffin error on appeal by failing to object below, but that defendant was not prejudiced by counsels failure to object. "Had the trial court sustained an objection to the prosecutors comments as Griffin error, it would have properly admonished the jury in similar terms, making it plain—as did CALJIC Nos. 2.60 and 2.61—both that [defendants] silence could not substitute for the requirement the People prove his guilt beyond a reasonable doubt and that [defendants] silence could not be used as evidence of guilt. Repeating those instructions may have had some marginal benefit to the defense. However, a review of the evidence of [defendants] guilt, as well as the prosecutors entire closing argument to the jury and the limited extent of the alleged Griffin error itself, which did not involve any direct comment on the defendants failure to testify, let alone (as occurred in Griffin) the actual suggestion the jury could consider the defendants failure to testify in assessing his guilt [citation], leaves us convinced his counsels failure to object to the prosecutions comments did not adversely affect the outcome of his trial. [Citation.]" (Mesa at p. 1011.) Likewise here, counsels failure to object did not adversely affect the outcome of defendants trial. The same may be said for the prosecutors interrupted argument regarding harm to future children. We reject defendants ineffective assistance of counsel claim.
III.
DISPOSITION
The judgment is affirmed.
We concur:
Reardon, Acting P.J.
Rivera, J.