Opinion
F083926
10-27-2023
THE PEOPLE, Plaintiff and Respondent, v. JUAN CARLOS LUNA, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Mars, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F16902216 Alvin M. Harrell III, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ivan P. Mars, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
Defendant Juan Carlos Luna was convicted of second degree murder for killing his cousin's partner with a true finding on a weapon enhancement. Defendant contends the prosecutor committed prejudicial misconduct by arguing to the jury that defendant could be convicted of second degree murder if he acted in imperfect defense of another. Defendant contends the issue is preserved despite the lack of objection by defense counsel to the prosecutor's misstatements of law. Alternatively, defendant contends defense counsel provided ineffective assistance of counsel by failing to object.
The People respond that defendant forfeited the misconduct claim by failing to object to the prosecutor's comments at trial. The People contend defense counsel's performance was not deficient for failing to object and there was no prejudice to defendant by the prosecutor's comments. If the claim is not forfeited, the People argue the prosecutor's isolated reference to imperfect defense in his closing argument does not constitute misconduct.
We affirm.
PROCEDURAL SUMMARY
On May 4, 2018, the Fresno County District Attorney filed an information charging defendant and a codefendant, Jordan Lee Embrey, with the murder of Hector Torres, Sr. (Pen. Code, § 187, subd. (a)). The information further alleged defendant used a deadly and dangerous weapon, to wit, a knife (§ 12022, subd. (b)(1)). The information also alleged defendant had suffered two prior strike convictions within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), which also qualified as serious felony convictions (§ 667, subd. (a)).
All further statutory references are to the Penal Code.
The information also charged Embrey with false imprisonment of defendant's cousin, Elise R. (§ 236.)
The trial was bifurcated for the prior convictions. Defendant waived his right to a jury trial regarding his prior convictions.
On November 12, 2021, the jury found defendant guilty of second degree murder and found true the weapon allegation. In a bifurcated proceeding on the same day, defendant admitted his two prior convictions.
On February 10, 2022, the trial court sentenced defendant to 45 years to life (15 years to life tripled for the two prior strikes) for the murder, consecutive to a term of one year for the weapon enhancement.
Defendant filed a timely notice of appeal.
FACTUAL SUMMARY
Hector Torres, Sr., was in a relationship with defendant's cousin, Elise R., for 11 years before his death. Torres and Elise's relationship was volatile with frequent arguing. Torres had also been physically violent toward Elise for years. Elise's family, including defendant, was aware of Torres's abuse. Defendant had told Elise that Torres "was going to get his a** whooped when he got out of jail because of how he was treating [Elise]."
Elise's preliminary hearing testimony was read into the record at trial because Elise was unavailable to testify.
In March 2016, Torres and Elise were living in room 223 at a hotel in Fresno with their three children. Elise was about five or six months pregnant with their fourth child. On March 24, 2016, Torres went to his mechanic job. During his lunch break, Torres returned to the hotel but stayed outside the room in a car. Torres called Elise on her cell phone and asked what she was doing. Elise was outside talking to the girl from the neighboring room, but she told Torres she was inside their room. Torres told Elise to look to her left and asked, "'Do you see the red car?'" Torres then said, "'Well, I see you.... I caught you.'" Torres was angry that Elise was outside the room because he did not want her talking to the people from the neighboring room. Torres said to Elise, "'Watch, b**ch, watch when I get home b**ch,'" and then hung up on her. Elise took that to mean she was going to be hit or yelled at when Torres returned home.
Torres and Elise argued all day via text message after that. Their oldest daughter was picked up by Elise's mother around 6:00 or 7:00 p.m.
Torres and Elise continued to argue after Torres returned to the hotel later that day. Torres accused Elise of lying to him and sleeping with the man in the neighboring room. Elise explained she was just talking to the girl in the next room because she gets lonely at the hotel with the kids all day. Torres slapped Elise twice in the face. He had his hand up to slap her again and said, "'Shut the f**k up, b**ch. I'm going to knock your teeth out.'" Elise stayed quiet. Torres then spit on Elise.
Before the slapping, Elise called her grandfather and asked him to pick her up, but he was out of town. After the slapping, Elise sent text messages to defendant via the cell phone of his then-girlfriend, Jacqueline A. Defendant was living with Jacqueline at the time. Elise told defendant in these messages that Torres slapped her. She messaged defendant that she was "tired of [Torres] putting his hands on [her]" and she wanted "him to get beat up."
Embrey drove defendant and Jacqueline from Jacqueline's house to the hotel that night. The hotel's video surveillance showed defendant, Embrey and Jacqueline arrived at the hotel at 9:37 p.m. Jacqueline sent a message to another of defendant's cousins, Marilyn M., saying that Torres was slapping Elise. Jacqueline asked Marilyn for Elise and Torres's room number. Marilyn responded to Jacqueline and mistakenly said they were in room number 232 (not 223) at the hotel. The trio walked along the hotel walkways but were unable to find a room 232 because the room numbers only go up to 230. They returned to the car, but Embrey and defendant then got back out. Defendant messaged Elise to ask where she was, and she responded, "'Don't worry about it.... [Torres] left already.'"
The timestamp for the video surveillance system was 30 minutes behind real time.
The hotel's video surveillance also recorded defendant, Embrey and Jacqueline walking around the hotel.
Shortly after Elise responded to defendant, Elise was lying on the bed crying when there was a knock on the door. Elise's son, H.T., was playing with toys underneath the bed and her one-year-old daughter was sitting on one of the beds. Torres was in the bathroom. H.T. told Elise, "'I got it, mom,'" and went to open the door. Elise told H.T., "'No, no, don't open the door,'" but H.T. had already opened the door. Elise saw defendant at the door and screamed to Torres that her cousin was there. She ran to shut the door, but defendant put his foot in the way so Elise could not close the door. Defendant had a large knife in his hand. Elise tried to push defendant out the door. H.T. hid under the bed. Defendant asked Elise, "'Where's [Torres]?'" She said, "'He's not here. He left.'" Defendant said, "'You're lying'" and shoved Elise out of the way into the room. Elise fell to the floor. She got up and screamed to Torres that her cousin was in the room. Defendant went towards the bathroom. Embrey came from behind Elise and put his hand over her mouth.
Defendant opened the bathroom door with the knife in his hand. Torres was standing in the bathroom with his hands in the air. Defendant asked Torres, "'Are you hitting my cousin, Dog? Are you hitting my cousin?'" Torres said, "'No, I'm sorry. I'm sorry.'" Defendant went at Torres with the knife. Elise saw defendant stab Torres three times. Torres moved his hands to defend himself.
The video surveillance captured images of defendant with the knife in his hand outside the room's door. Defendant can also be seen inside the bathroom with his right arm thrusting forward and back.
Elise bit Embrey's hand and broke free. Elise tried to take the knife from defendant and cut her hand. Torres fell to the floor. H.T. saw his father fall to the ground from underneath the bed. Defendant, Embrey and Elise struggled over the knife. Defendant and Embrey managed to pull the knife away and ran from the room. Defendant, Embrey and Jacqueline then drove back to Jacqueline's house.
Elise called 911 and tried to stop Torres's bleeding. Police and emergency medical personnel arrived at the hotel and tried to save Torres. Torres was unresponsive and was taken by ambulance to the hospital. Torres died from his wounds.
Defendant's knife penetrated Torres's pulmonary artery during the stabbing. Dr. Michael Chambliss, the Fresno County forensic pathologist, considered this wound to be the cause of Torres's death and estimated it would take five to 10 minutes for a person stabbed in this manner to die. Torres had methamphetamines in his system at the time of his death.
On April 7, 2016, defendant and Jacqueline were sitting at a bus stop in Fresno when Fresno police officer Chris Hinojos approached them because Hinojos believed the two were acting suspicious. Defendant and Jacqueline were both wearing wigs. Defendant initially told Hinojos his name was Eric Morales, but then provided his real name. Hinojos arrested defendant pursuant to an arrest warrant.
DISCUSSION
Defendant contends the prosecutor committed prejudicial misconduct by misstating the law when he argued to the jury that defendant could be convicted of murder rather than manslaughter if he acted in imperfect defense of another or imperfect self-defense.
1. Jury Instructions, Closing Arguments and Deliberations
The day before closing arguments, the trial court provided instructions to the jury. The jury was instructed on the elements of murder pursuant to CALCRIM No. 520:
"The defendants are charged in Count 1 with Murder in violation of ... section 187. To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant committed an act that caused the death of another person;
"AND
"2. When the defendant acted, he had a state of mind called malice aforethought;
"AND .
"3. He killed without lawful excuse or justification.
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
"The defendant acted with express malice if he unlawfully intended to kill.
"The defendant acted with implied malice if:
"1. He intentionally committed an act;
"2. The natural and probable consequences of the act were dangerous to human life;
"3. At the time he acted, he knew his act was dangerous to human life;
"AND
"4. He deliberately acted with conscious disregard for human life.
"Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.
"An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.
"There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death."
The jury was also instructed on first degree murder per CALCRIM No. 521:
"The defendant is guilty of First Degree Murder if the[] People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused the death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be made quickly. The test is the extent of reflection, not the length of time.
"The People have the burden of proving beyond a reasonable doubt that the[] killing was First Degree Murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of First Degree Murder and the murder is Second Degree Murder."
The jury instructions included CALCRIM No. 571 for imperfect defense of another:
"A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another.
"If you conclude the defendant acted in complete defense of another, his action was lawful and you must find him not guilty of any crime. The difference between complete defense of another and imperfect defense of another depends on whether the defendant's belief in the need to use deadly force was reasonable.
"The defendant acted in imperfect defense of another if:
"The defendant actually believed that someone else was in imminent danger of being killed or suffering great bodily injury;
"AND
"The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;
"BUT "At least one of those beliefs was unreasonable.
"Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.
"In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.
"A danger is imminent if, when the fatal wound occurred, the danger actually existed or the defendant believed it existed. The danger must seem immediate and present, so that it must be instantly dealt with. It may not be merely prospective or in the near future.
"Imperfect self-defense does not apply when the defendant, through his own wrongful conduct, has created circumstances that justify his adversary's use of force.
"If you find that Hector Torres, Sr., threatened or harmed the defendant or others in the past, you may consider that information in evaluating the defendant's beliefs.
"If you find that the defendant knew that Hector Torres, Sr., had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs.
"Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.
"The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder."
In his closing argument, the prosecutor discussed the impact of a finding of imperfect self-defense in the context of a murder charge:
"So here there's-I don't think we've got much of an argument this is a perfect self-defense case. I anticipate arguments of imperfect selfdefense, which I will also be talking about. And what imperfect selfdefense is, it moves from a first degree or second degree sort of down a slot. So if you're at first degree and find imperfect self-defense, you can go to second degree murder. If you're at second degree and find imperfect self-defense, you can go to manslaughter. But here there is no self-defense, so it is unlawful. Here, I'm going to show you that there's plenty of malice, so it's not voluntary manslaughter, and I'm going to show you malice. And malice equals murder, and murder is either first degree, which requires express malice, which I'll explain, premeditation, willful and deliberate, whereas second degree requires either express or implied malice." (Italics added.)
The prosecutor later in his argument discussed imperfect defense of another and CALCRIM No. 571:
"But then we have [CALCRIM No.] 571. Okay. This is imperfect defense of others, which was also read to you, and I'll also submit to you this is why this one doesn't apply. Remember, if you believe this, this would make it go from a second degree to a-to a manslaughter or from first degree to second degree. Sorry, this one's a little smaller because there's more to it. The defendant acted in imperfect defense of another if the defendant actually believed that someone else was in imminent danger of being killed or suffering great bodily injury. It fails for the exact same reason as perfect self-defense because it still has to be imminent. And the defendant actually believed that the immediate use of deadly force was necessary to defend against that danger but at least one of those beliefs was unreasonable. That's what makes it unreasonable, and that's how it downgrades a murder in the way that it does." (Italics added.)
Defense counsel argued to the jury during her closing argument that defendant should be convicted of manslaughter for imperfect defense of another rather than murder.
During deliberations, the jury sent the following note to the trial court: "We need clarification on 1st Degree Murder and 2nd Degree Murder. Please come and talk to [us]. [¶] What constitutes 1st Degree Murder and 2nd Degree Murder?" The court returned the jury to the courtroom to respond to the question: "If you decide that the defendants are guilty or committed murder, it is murder of the second degree. That's where you start by default. It's murder of the second degree unless and only if the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in CALCRIM instruction number 521. Now, I'm going to go over that with you right now." The court then reread CALCRIM No. 521 to the jury. The court concluded by saying: "Again, by default, it's second degree unless the People were able to prove each of the other elements beyond a reasonable doubt. And that is, specifically, that the killing-the defendants acted willfully, deliberately and with premeditation. They have to prove that beyond a reasonable doubt, each and every one of those elements."
The jury later sent another note to the trial court saying: "We cannot agree whether the defendant is guilty of First Degree Murder." The court instructed the jurors that if they cannot unanimously agree it is first degree murder then it can only be second degree murder and only if all 12 jurors agree on that crime. The jury confirmed this answered its question and returned to deliberations. The jury found defendant guilty of second degree murder and found the weapon allegation true.
2. Prosecutor's Misstatements of Law
Preliminarily, the People concede, and we agree, that the prosecutor misstated the law in his closing argument.
"California statutes have long separated criminal homicide into two classes, the greater offense of murder and the lesser included offense of manslaughter. The distinguishing feature is that murder includes, but manslaughter lacks, the element of malice." (People v. Rios (2000) 23 Cal.4th 450, 460; see §§ 187, subd. (a) ["Murder is the unlawful killing of a human being ... with malice aforethought."] 192 ["Manslaughter is the unlawful killing of a human being without malice."].)
California recognizes the doctrines of imperfect self-defense and imperfect defense of another. (People v. Randle (2005) 35 Cal.4th 987, 994-1001 (Randle), overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201.) "'Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter.'" (Randle, supra, at p. 995.) As with imperfect self-defense, "one who kills in imperfect defense of others-in the actual but unreasonable belief he must defend another from imminent danger of death or great bodily injury-is guilty only of manslaughter." (Id. at p. 997; see People v. Trujeque (2015) 61 Cal.4th 227, 271 [imperfect defense of another, "like imperfect self-defense, is not a true defense, but a shorthand description for a form of voluntary manslaughter"].) Both imperfect selfdefense and imperfect defense of another reduce murder to manslaughter.
The jury instructions correctly stated that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another." (CALCRIM No. 571.) The prosecutor inaccurately told the jury during closing argument that a finding of imperfect defense of others would reduce the murder from first degree to second degree. If the jury found that defendant killed Torres in an unreasonable belief that he must defend Elise from imminent danger of death or great bodily injury this would not be murder. Rather, defendant would be guilty only of manslaughter. (Randle, supra, 35 Cal.4th at p. 997.) The prosecutor's statement was therefore legally incorrect.
The prosecutor also incorrectly told the jury if it finds defendant committed murder in the "first degree and find imperfect self-defense, [the jury] can go to second degree murder." If defendant killed Torres because he actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the crime would reduce from murder to manslaughter, not from first degree to second degree murder.(Randle, supra, 35 Cal.4th at p. 995.) It was thus inaccurate for the prosecutor to tell the jury imperfect self-defense would reduce the crime to second degree murder.
The jury was not instructed on imperfect self-defense, although it was discussed during closing argument. Defendant does not raise an issue regarding omission of an instruction on imperfect self-defense and there is no evidence that would support a finding of imperfect selfdefense. While imperfect self-defense does not apply to the facts of this case, we discuss the prosecutor's misstatement of law on imperfect self-defense only in response to defendant's claim this was part of the prosecutor's misconduct.
We agree that the prosecutor misstated the law to the jury in his closing argument.
3. Forfeiture
The People argue defendant forfeited the prosecutorial misconduct claim by failing to object to the prosecutor's misstatements of law at trial. We agree.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. [W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44.) "Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is [generally] improper for the prosecutor to misstate the law ....'" (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno); see People v. Boyette (2002) 29 Cal.4th 381, 435 [it is misconduct for the prosecutor to misstate the applicable law].)
"It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal." (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) The underlying purpose of this requirement "'"is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had ...."'" (People v. Saunders (1993) 5 Cal.4th 580, 590.) A defendant will be excused from making an objection or requesting an admonition if either would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820.)
"A prosecutor's misstatements of law are generally curable by an admonition from the court." (Centeno, supra, 60 Cal.4th at p. 674.) Defendant does not argue, and the record does not reflect, that an objection and request for admonition by the trial court in response to the prosecutor's misstatements would have been futile. A timely objection by defense counsel would have given the trial court an opportunity to cure the prosecutor's misstatements and instruct the jury on the correct law. Nothing in the record suggests the prosecutor's misstatements could not have been rectified by the trial court in response to a timely objection and request for admonition.
Defendant cites section 1259 to argue the issue is preserved for appeal because it affects his substantial rights. Section 1259 "permits a defendant to raise on appeal a claim challenging 'any instruction ... even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.'" (People v. Seumanu, supra, 61 Cal.4th at p. 1357, italics added.) Section 1259 allows an unpreserved challenge to jury instructions where the giving or omission of an instruction by the trial court affected the defendant's substantial rights. Defendant is not challenging the jury instruction on imperfect defense of another-instead, he is arguing the prosecutor committed misconduct by misstating the law to the jury. Section 1259 does not relieve defendant of the necessity to object to the prosecutor's statements at trial to preserve the issue on appeal. (See People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]; accord, United States v. Olano (1993) 507 U.S. 725, 731732.) Although we may address an issue that has been forfeited, we decline to do so here. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review and whether or not it should do so is entrusted to the court's sound discretion].)
Defendant's citation to People v. Medellin (2020) 45 Cal.App.5th 519 is similarly misplaced. In Medellin, a majority of this court concluded reversal of defendant's convictions was required because the prosecutor's misstatements of the law together with an instructional ambiguity resulted in a prejudicial alternative-theory error. (Id. at pp. 535-536.) Here, the sole issue is the prosecutor's misstatements of law. There is no issue with the jury instructions because, as defendant concedes, the jury was properly instructed on the law about imperfect defense of another. The prosecutor's brief misstatements in closing argument were not compounded by an ambiguous jury instruction.
No objection was made at trial to the prosecutor's misstatements of law and the issue is forfeited.
Because defendant's claim is forfeited, we need not address defendant's brief contention that the prosecutor's misconduct implicated due process by removing the requirement the prosecution must prove every element of an offense and specifically, malice for a murder conviction. Even if this argument was not forfeited, the point is not well taken. The jury was instructed that the People must prove beyond a reasonable doubt that defendant committed the crime, including proving that he acted with malice aforethought, to find defendant guilty of murder. The trial court also reiterated to the jury that it is the People's burden to prove every element of an offense in response to the jury's question about first degree versus second degree murder.
4. Ineffective Assistance of Counsel
Recognizing the prosecutorial misconduct claim may be forfeited, defendant contends in the alternative that defense counsel provided ineffective assistance of counsel by failing to object to the prosecutor's misstatements of law.
"'A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel.'" (Centeno, supra, 60 Cal.4th at p. 674.) To show ineffective assistance of counsel, defendant "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (Ibid.; see Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) To show prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Id. at p. 695.)
"'[D]eciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.'" (People v. Lopez (2008) 42 Cal.4th 960, 972.) Even if defense counsel had no tactical reason for failing to object to the prosecutor's misstatements of law, we would reject defendant's ineffective assistance of counsel claim because there is no reasonable probability that the jury would have had a reasonable doubt about defendant's guilt absent the error. (Strickland, supra, 466 U.S. at p. 697 [the reviewing court need not determine if counsel's performance was deficient if it is easier to dispose of an ineffectiveness claim for lack of sufficient prejudice].)
The evidence against defendant to support a murder conviction was overwhelming. The hotel's video surveillance showed defendant walking around the hotel looking for Torres's room. Defendant was also seen entering Torres's hotel room with the knife. Elise witnessed defendant stabbing Torres three times, and H.T. saw his father fall to the floor after the stabbing. The video surveillance captured defendant thrusting his right arm forward and back inside the room. Although Torres had a history of abusing Elise, there was no evidence Elise was in imminent danger of being killed or suffering great bodily injury when defendant killed Torres. Torres was in the bathroom when defendant came into the hotel room and posed no danger to Elise when defendant attacked him with the knife. He was holding his hands up and apologizing to defendant. The jury necessarily concluded by its verdict that defendant killed Torres with malice aforethought and rejected defense counsel's argument that the killing was committed in imperfect defense of Elise. Even if defense counsel had objected to the prosecutor's misstatements of law, there is no reasonable probability of a different outcome.
Defendant argues the prosecutor's misstatements suggested to the jury it could use the same facts for imperfect defense of another to reduce the degree of the murder. Even if we were to accept this premise, the prosecutor's misstatements of law were brief and were countered by jury instructions that correctly outlined the law regarding imperfect defense of another. "It has often been emphasized that arguments of counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.' [Citations.] 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[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." [Citation.]'" (Centeno, supra, 60 Cal.4th at p. 676.)
The trial court correctly instructed the jury that imperfect defense of another reduces murder to manslaughter. Specifically, the jury was instructed that "[a] killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect defense of another." The jury was provided with the correct analysis to determine if defendant acted in imperfect defense of another pursuant to CALCRIM No. 571. The court also instructed the jury that if the attorneys' comments on the law conflict with the court's instructions, the jury must follow the court's instructions. The court reiterated to the jury just before deliberations that what the attorneys say during argument does not constitute evidence or the law, and that the court has provided the law to the jurors to apply to the facts as they find them. We presume the jurors followed the court's instructions in the absence of any evidence to the contrary. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 821.)
The prosecutor also told the jury during his closing argument to follow the court's instructions on the law if they conflict with what he says. Specifically, the prosecutor stated toward the beginning of his argument: "It's my job to sort of guide you through [the jury instructions] and explain how the facts relate to the jury instructions, but if any of mine are different than what the Court provided you and what the Court is going to provide you copies of what you had yesterday, if any of mine are different, always remember the Court is right. The Court is right on the law. It's my job to argue the facts and how they apply." The prosecutor reiterated this toward the end: "Follow the law as the Judge instructs. And again, I put this in there because I need it for the record in case anything about my law is wrong or different than what you received by Judge, remember the Judge is always right. Follow the Judge's instructions."
Defendant contends the jury's questions during deliberations indicate it struggled over whether the crime was first or second degree murder, and that "it is quite possible the jury was not struggling with premeditation and deliberation," but with whether defendant acted in defense of Elise. These contentions are wholly speculative and therefore unpersuasive.
Because we conclude there is no reasonable probability of a different outcome if defense counsel had objected to the prosecutor's misstatements of law, we reject defendant's ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.
WE CONCUR: LEVY, ACTING P. J. PENA, J.