Opinion
D072995
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. BRIAN PEREZ, Defendant and Appellant.
Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36761) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Reversed in part, affirmed in part and remanded for resentencing with instructions. Anthony J. Dain, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General for Plaintiff and Respondent.
A jury found Brian Perez guilty of assault upon a custodial officer by means likely to produce great bodily injury (Pen. Code, § 245.3; count 1) and mayhem (§ 203; count 2). As to count 1, the jury found true the allegation that appellant personally inflicted great bodily injury on the victim within the meaning of section 12022.7, subdivision (a). The court found true allegations that Perez had two prior strike convictions (§§ 667, subd. (b)-(i), 1170.12, subd. (a)-(d)) and sentenced him to prison for a total term of 25 years to life.
All statutory references are to the Penal Code.
On appeal, Perez argues insufficient evidence supports the mayhem conviction and asserts various arguments related to prosecutorial error and ineffective assistance of counsel. He also requests an amendment to his abstract of judgment, which states he was convicted of assault with a deadly weapon, rather than assault by means of force likely to produce great bodily injury. The Attorney General concedes the abstract of judgment should be amended to correct this clerical error, and we agree. We conclude there is insufficient evidence of mayhem, but we reject Perez's remaining claims of error.
We therefore reverse the mayhem conviction and remand for resentencing with instructions. In all other respects, we affirm the judgment.
FACTS
A.
On July 27, 2016, Perez appeared in Brawley Superior Court for two hearings. The court ruled against him at both. When the hearings concluded, an Imperial County Sheriff's deputy escorted Perez, who was in custody at the time, back to the holding cell. Perez was wearing full restraints. As he entered the cell, he asked the deputy if he could use the restroom. After the deputy removed Perez's right handcuff, Perez quickly and unexpectedly pulled his hand away and punched the deputy solidly twice on his left temple, around his eye socket. As the deputy stepped backward from the force of the first two punches, Perez punched him a third time but the deputy barely felt this punch because he was "pulling back" as Perez hit him. The deputy bounced backward, striking his head and shoulder on the metal doorframe. He was dizzy and felt pain in his head and shoulder; he was bleeding from a cut above his left eye and could barely move his right arm. He felt a piece of tooth in his mouth with his tongue and noticed that a piece of one of his molars was missing.
The deputy was transported via ambulance to the hospital emergency room, where he complained of shoulder pain and dizziness. He had a laceration above his left eye, a ruptured blood vessel on his eye, an abrasion on the right side of his head and another on his face, and a fractured tooth.
The emergency room physician treated the laceration with a skin adhesive. She gave the deputy a tetanus shot and three pain medications and referred him to a dentist for the tooth fracture. The physician explained at trial that the tooth fracture was an "Ellis Type I" fracture, meaning damage occurred to the outermost layer of tooth, the enamel. An "Ellis Type I" fracture is the "least severe" on the Ellis classification system. In terms of location, the fractured tooth was on the top right-hand side—the second tooth starting from the back of the mouth. The physician testified that human teeth do not grow back. She further testified that she saw no signs of bleeding gums or cuts on the deputy's inner cheek, and that the tooth was not loose.
The deputy underwent dental treatment to fix the fractured tooth. The dentist ground down the deputy's tooth and repaired it with a filling. The deputy described the dental procedure as "just a filling" that lasted no more than 40 minutes.
The jury was shown five photographs—including photographs depicting injuries to the deputy's face—but no photographs of the deputy's tooth were presented to the jury.
The deputy was off work for two days and on modified ("light") duty for approximately one week. He had two or three weeks of physical therapy to treat his injured shoulder and continues to experience pain in that area.
B.
After the prosecution rested at trial, defense counsel made a motion for a directed verdict under section 1118.1 on the mayhem charge (count 2) and the allegation in count 1 that Perez inflicted great bodily injury. The court entertained argument, then denied the motion indicating that a tooth is part of the body and there was evidence that a portion of the deputy's tooth was broken.
Section 1118.1 provides, "[i]n a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal."
After the verdicts, the court revisited the issue of the sufficiency of the evidence to support the mayhem conviction, stating:
"And, of course, counsel brought an 1118.1 motion during trial, which I denied, but after further reflection, I think there's a real issue there and I think that counsel needs to brief the issue further because, I'll tell you, my reaction right now is that the injury has to affect—the issue is disfigurement, and it's pretty hard to say—it's easy to say that a broken front tooth is a disfiguring injury; it's not easy to say that a broken molar would be a disfiguring injury because it would not affect a person's outward appearance. But I can't find a single case that addresses damage to a molar.The court went on to explain that it believed it had inherent authority to "do the right thing and dismiss a charge if the Court believes after further reflection that it's not supported by the evidence." The court stated, "I think the Court has the authority to address the issue post[-]verdict," and expressly invited the prosecutor to brief the issue if he disagreed. The court concluded:
"So anyway, that's one important issue that I'm looking at and I would like counsel to weigh in on."
"I am telling you that I have an independent authority to address the issue regardless of what official position defense counsel takes, and I'm going to address that issue and I'm going to give you an opportunity to brief the issue if you choose. If you don't choose to brief the issue, then, you know, that's your prerogative."The prosecutor subsequently filed an "opposition to the court's motion to reconsider defendant's motion for judgment," arguing that the court lacked authority under section 1118.1 to reconsider its prior ruling, since the case had already been submitted to the jury, taking it outside the scope of that section. The prosecutor further argued there was no legal requirement that the disfigurement underlying the mayhem charge be on an exposed part of the body, and the evidence presented at trial regarding the permanently fractured molar was sufficient to sustain the mayhem conviction.
Defense counsel did not file a brief.
At the continued hearing, the court indicated it was no longer inclined to change its prior ruling, stating:
"I've made comments informally to counsel several times about the Court's concerns about whether the evidence supported the charge or the conviction for mayhem.
"But, of course, the Court was given the opportunity to grant an 1118.1 motion during trial and the Court denied that motion. That is certainly true. But since that time, the Court has entertained some doubt about the legal correctness of that ruling, but—so I've invited counsel to bring whatever motion would be appropriate so the Court can do what it can to address that issue and I've suggested that several times.
"I'm sure [the prosecutor] has filed papers arguing that that conviction should be left in place. I haven't heard anything from defense counsel. There has been no motion filed by the defendant asking the Court to reconsider the 1118.1 motion that was denied, or asking the Court to grant a new trial because of the insufficiency of the evidence on that count.
"So since that request is not being formally presented to the Court and the jury did make a guilty finding, the Court's not going to take any further action."
Defense counsel responded that he may have misunderstood their prior conversations as he believed the court wanted him to look to other jurisdictions to see if there was authority on point, and he could not find anything specifically on point. Defense counsel "reiterate[d] [his] position" that the trial court "has the inherent power to . . . correct something if it's wrong."
The court indicated that, because counsel had not made a motion for new trial, it was "not going to readdress the issue under the circumstances."
DISCUSSION
I.
Sufficiency of the Evidence of Mayhem
Perez contends there is insufficient evidence of mayhem because the deputy's tooth fracture does not amount to a disfiguring injury within the meaning of section 203. He argues the tooth injury "amounted to a broken piece of enamel on a tooth in the back of the victim's mouth in an area that is not ordinarily visible, which was repaired with a filling, and which did not result in any scarring." According to Perez, "this is . . . not the type of wound that was meant to constitute the crime of mayhem under California law."
Section 203 provides: "Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem."
"In assessing a claim of insufficiency of evidence, [this court's] task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
A person is guilty of mayhem when he "unlawfully and maliciously" does one of six specified acts: "(1) dismembering or depriving a part of someone's body; (2) disabling or rendering useless a part of someone's body; (3) disfiguring someone; (4) cutting or disabling the tongue; (5) putting out an eye; [or] (6) slitting the nose, ear or lip." (People v. Santana (2013) 56 Cal.4th 999, 1003-1004 (Santana); § 203.)
"Mayhem, an older form of the word 'maim,' was at common law restricted to injuries that 'substantially reduced the victim's formidability in combat' [citation]; the rationale being to preserve the king's right to the military services of his subjects. Gradually, the crime evolved to include injuries that did not affect the victim's fighting ability." (People v. Keenan (1991) 227 Cal.App.3d 26, 33-34 (Keenan).) As explained by the Supreme Court in Santana, " ' "the modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body, and not, as originally, the preservation of the sovereign's right to the effective military assistance of his subjects." ' " (Santana, supra, 56 Cal.4th at p. 1004.)
While noting that " 'not every visible scarring wound' may establish mayhem," the court in Santana set forth with approval the following examples of the types of disfiguring injuries that have given rise to mayhem convictions: "cigarette burns to both breasts (Keenan, supra, 227 Cal.App.3d at p. 29); a breast nearly severed by a box cutter (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559 (Pitts)); a three-inch facial laceration from a fingernail file (People v. Newble [(1981)] 120 Cal.App.3d [444,] 448); forcible tattoos on the breast and abdomen ([People v.] Page [(1980)] 104 Cal.App.3d [569,] 576); and a five-inch facial wound from a knife (Goodman [v. Superior Court (1978)] 84 Cal.App.3d [621,] 623). Other injuries constituting mayhem under section 203 include blinding of an eye from a kick ([People v.] Sekona [(1994)] 27 Cal.App.4th [443,] 457); severe facial trauma requiring metal plates and wires to keep the facial bones together (People v. Hill (1994) 23 Cal.App.4th 1566, 1570 (Hill)); a bitten-through lower lip (People v. Caldwell (1984) 153 Cal.App.3d 947, 952); a broken ankle that had not completely healed after six months (People v. Thomas (1979) 96 Cal.App.3d 507, 512 (Thomas)); and an eye 'put out' by a machete (People v. Green [(1976)] 59 Cal.App.3d [1,] 4)." (Santana, supra, 56 Cal.4th at p. 1004.)
The disfigurement prong of section 203 is at issue here. Disfigurement is actionable as mayhem only if it is permanent. (People v. Newby (2008) 167 Cal.App.4th 1341, 1347; accord, Thomas, supra, 96 Cal.App.3d at p. 512 [disabling injury must be more than "slight and temporary"], disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498.) " '[A]n injury may be considered legally permanent for purposes of mayhem despite the fact that cosmetic repair may be medically feasible.' " (Santana, supra, 56 Cal.4th at p. 1007.)
The jury was instructed: "To prove that the defendant is guilty of mayhem, the People must prove the Defendant unlawfully and maliciously permanently disfigured somebody."
Here, the record shows that Perez made contact with two solid punches to the left side of the deputy's face. After the attack, the deputy noticed a part of a molar on the upper right side of his mouth was broken. The treating physician described the injury as an "Ellis Type I" fracture—affecting the tooth enamel—and stated that this was the "least severe" type of tooth fracture. The physician testified that teeth do not grow back, and she explained that the deputy's tooth in this case was not loose and there were no signs of bleeding gums or cuts on his inner cheek. The deputy required a 40-minute visit to the dentist to repair the damage to his tooth, describing it as "just a filling." No photographs of the deputy's injured tooth were presented.
On this record, we conclude there was insufficient evidence to support the jury's finding that the deputy was permanently disfigured within the meaning of the mayhem statute. "[N]ot every visible scarring wound can be said to constitute the felony crime of mayhem" (Goodman, supra, 84 Cal.App.3d at p. 625), and here there was no evidence at all of any visible wound or any scarring. We recognize, as the Attorney General points out, that mayhem convictions have been upheld where the disfiguring injury was not readily apparent to others, and that an injury that is severe when inflicted may constitute mayhem even if it can be medically treated. But the cases cited by the Attorney General do not support the conviction here.
In People v. Johnson (2018) 21 Cal.App.5th 267, 281, defendant "savagely bit the victim's face, including her lip and eyelid." The victim testified that the defendant bit her "on the top of her lip on the left side clear through her bottom left lip," leaving two scars and numbness. (Ibid.) The bite to her eyelid resulted in another scar and her right eyebrow was left permanently shorter than her left eyebrow. (Ibid.) The court rejected defendant's argument that the victim's lip had to be "slit" not just "punctured" to support a mayhem conviction, explaining that "[t]he permanent scars on [the victim's] lip are precisely the type of disfiguring injury the mayhem statute targets." (Ibid.) The court emphasized that section 203 "pays particular attention to the face, recognizing the particular pain and emotional scarring that results from disfiguring a person's face." (Johnson, at p. 281.) In Keenan, the defendant intentionally burned a woman's breasts with a cigarette. The court concluded the woman's injury involved a "serious permanent disfigurement" for purposes of section 203. (Keenan, supra, 227 Cal.App.3d at pp. 35- 36, fn. omitted.) The court explained that "if the burns had been inflicted on [the victim's] face there would be no question that mayhem had been committed." (Id. at p. 36.) The court further explained that the scars on the victim's breasts would not normally be exposed to the public, but they would "for the rest of her life serve as a daily reminder of [the defendant's] grotesque assaults" and "represent[] . . . an intentional violation of the integrity of her person." (Ibid.) In People v. Caldwell, supra, 153 Cal.App.3d at p. 952, the court concluded there was sufficient evidence that defendant "slit[] the . . . lip" (italics omitted) of the victim within the meaning of section 203 where the defendant bit through the victim's lower lip. Finally, the court in Newble concluded that the "infliction of a three-inch facial laceration," which extended from the bottom of the victim's left ear to just below the chin, constituted disfigurement under the mayhem statute. (Newble, supra, 120 Cal.App.3d at p. 447.)
The Attorney General also cites People v. Williams (1996) 46 Cal.App.4th 1767, 1773, but the defendant there did not challenge the sufficiency of the evidence of mayhem and it is not helpful to our analysis.
By contrast, the nature of the deputy's injury here is materially different. This case involves a chipped tooth located in the back of one's mouth, which was repaired by a 40-minute visit to the dentist. This is not a situation where " 'one of the miracles of modern surgery' " intervene to repair what might otherwise be a permanent disfigurement. (People v. Hill (1994) 23 Cal.App.4th 1566, 1573.) This case is missing the type of grave, permanent disfigurement required under the mayhem statute. The evidence establishes that a portion of the deputy's enamel was chipped, requiring his back tooth to be ground and filled. The fracture was located toward the very back of the deputy's mouth, and we do not know the size of it. The record cannot reasonably be read to establish that the deputy suffered a legally permanent injury to his mouth that was disfiguring in that it resulted in scarring that altered the normal appearance of his mouth. There also was no evidence that the deputy suffered the type of pain or emotional scarring present in the cases discussed above (and others). On this record, we conclude the evidence is insufficient to establish the requisite permanent, disfiguring injury defined by section 203.
The Attorney General has not cited any case involving similar facts, and we are not aware of any. (Cf. People v. Park (2003) 112 Cal.App.4th 61, 68-69 [affirming aggravated mayhem conviction where defendant struck victim's mouth with a 19-inch steel knife sharpener, breaking eight teeth]; Newble, supra, 120 Cal.App.3d at p. 450 [" 'To cut off, or permanently to cripple, a man's hand or finger, or to strike out his eye or foretooth, were all mayhems at common law, if done maliciously, because any such harm rendered the person less efficient as a fighting man (for the king's army).' "], italics added.)
In reaching this conclusion, we do not minimize the seriousness of the unprovoked attack or condone it. However, absent sufficient proof that the deputy suffered a permanent disfigurement, Perez's mayhem conviction cannot stand. Because we conclude the evidence is not sufficient to support mayhem, we need not address Perez's alternative argument that his counsel was ineffective in failing to file a motion for a new trial on that charge.
II.
Alleged Prosecutorial Misconduct
Perez contends the prosecutor committed misconduct during his closing argument by (1) commenting on Perez's failure to testify; and (2) misstating the law on assault and battery. Perez acknowledges his counsel failed to object to the challenged statements, and thus contends he received ineffective assistance. We reject Perez's claims of prosecutorial misconduct and ineffective assistance of counsel.
A.
Legal Standards
"Under the federal Constitution, to be reversible, a prosecutor's improper comments must ' "so infect[] the trial with unfairness as to make the resulting conviction a denial of due process." ' [Citations.] ' "But 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 court or the jury." ' " [Citations.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1000 (Cunningham).)
"Under the Fifth Amendment of the federal Constitution, a prosecutor is prohibited from commenting directly or indirectly on an accused's invocation of the constitutional right to silence." (People v. Lewis (2001) 25 Cal.4th 610, 670.) A violation of this prohibition constitutes Griffin error. (See Griffin v. California (1965) 380 U.S. 609.) In assessing Perez's claim of Griffin error, we must determine whether it is reasonably likely the jury construed or applied the prosecutor's remarks as a comment on the defendant's failure to testify. (People v. Roybal (1998) 19 Cal.4th 481, 514.)
"Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. . . . However, 'it is improper for the prosecutor to misstate the law . . . .' " (People v. Centeno (2014) 60 Cal.4th 659, 666.) When challenging the prosecutor's remarks to the jury, Perez must show that, " '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.]' " (Id. at p. 667.)
"A defendant generally ' " 'may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' " [Citation.]' [Citation.] A defendant's failure to object and to request an admonition is excused only when 'an objection would have been futile or an admonition ineffective.' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
B.
Claimed Griffin Error
Perez's claim of Griffin error arises from the prosecutor's response to defense counsel's closing argument.
In his closing argument, defense counsel conceded Perez punched the deputy. He argued Perez should be found guilty of the lesser included offenses of assault and battery but not the charged crimes of mayhem and assault by means of force likely to cause great bodily injury, contending Perez should be held accountable for his actions, which constituted the lesser included offenses only. Defense counsel made the following statement regarding accountability:
"Another value that we have in our society is personal accountability. I think we can all agree with that. Somebody does something wrong, you hold them personally accountable. It occurs in every step of life—when we're kids, when we're going to school, and when we're adults making our own decisions.
"A corollary to personal accountability is that you hold someone accountable for what they did and only for what they did. And there's a fine line between getting justice in a criminal case, like this one, and exacting revenge or retribution. And if you hold someone personally accountable for what they did based on the legal standards that apply in this courtroom, meaning only accountable for what the prosecution proved beyond a reasonable doubt, then you've done justice. If you go above and beyond that and you hold somebody accountable for something they did not do, then you're exacting retribution.
"Now, [deputy] is a victim in this case. That much is clear. The question is what he's actually a victim of. And if you go above and beyond what was actually proved in this case and find Mr. Perez guilty of things he actually did not do, then you can add a victim, you can add someone to that list of victims in this case. You don't have to do that."
Defense counsel went on to suggest that the deputy might have exaggerated his testimony and was motivated by "retribution" or "revenge" because it was "embarrassing" for the deputy to be punched by Perez.
In rebuttal, the prosecutor commented on defense counsel's reference to personal accountability:
"The defense started his closing remarks by talking about values. The only value I heard him mention was personal accountability, and when he talked about personal accountability, he referred to holding someone else accountable for their actions.
"When I hear 'personal accountability,' I think someone personally taking responsibility for their actions. That's responsibility, that's personal accountability. Someone saying, 'I did something wrong, I accept the consequences of my actions,' that's personal responsibility. That's being an adult. That's saying, 'I own what I did. I acted and I have no excuse for my actions and I'll take my lumps for it.' That's personal accountability. Personal accountability is not what others tell you and you deny accountability. That's not a value, ladies and gentlemen. Personal accountability is the individual accepting responsibility for his actions."
Later in his rebuttal argument, the prosecutor remarked that the deputy was not able to return to normal duty at work for a full week, arguing that this showed the injury inflicted was "significant," not "minor or moderate." He then made the following statement in response to defense counsel's reference to retribution:
"[Deputy] testified, 'I had to go back to work and I had to stop taking my pain medication,' and I asked him why. He said, 'I needed to go back to work.' [Deputy] had to make a choice, 'Do I go back to work, do I go get my paycheck, or do [I] keep taking my meds?' So he chose to work through his pain because he needed to, not because he wanted to. That's not someone seeking vengeance or retribution, that's not someone who is embarrassed, that's someone who takes personal accountability; that's a stand[-]up person.
"That's a victim (indicating [to the deputy]).
"That's not a victim (indicating [to Perez]), ladies and gentlemen."
Perez argues the prosecutor's statements directly implicated Perez's invocation of his Fifth Amendment right to remain silent. Perez contends the prosecutor's reference to "personal accountability" could have been understood by the jury only as commenting on the defendant's silence—his failure to testify, to admit wrongdoing, and to accept responsibility for his actions. Perez further argues this error was compounded by the subsequent statements regarding the deputy's testimony and contrasting the deputy (who testified) with Perez (who did not). By failing to object on this ground, Perez has forfeited his claim. (People v. Turner (2004) 34 Cal.4th 406, 421.)
Even if we were to reach his claim, we would conclude there is no error. To establish error, Perez relies on People v. Denard (2015) 242 Cal.App.4th 1012, where the prosecutor committed Griffin error by stating the defendant failed to take responsibility for his actions, showed "no accountability," and made a witness testify against him. (Id. at pp. 1019-1021.) In that case, there was video footage of the crime and one issue at trial was whether defendant was the perpetrator captured on camera. (Id. at p. 1018.) Defendant's ex-wife, who "had great difficulty testifying against" the defendant, whom she admitted she loved, testified she had no doubt defendant was the man in the video. (Id. at pp. 1018-1019.) The prosecutor remarked in his closing argument, " '[t]he defendant clearly does not want to take responsibility for his actions. He has put it upon [his ex-wife] to testify to get himself convicted. He has not taken responsibility himself. That is the kind of man he is. And that is typical of someone who is using or who has used [drugs], as [his ex-wife] testified to. There is no accountability, no responsibility, and that's why he cruelly made [her] testify in identifying him, yet again.' " (Id. at p. 1019.) In finding Griffin error, the Court of Appeal reasoned that the statements "cannot reasonably be interpreted as anything other than a comment on [the defendant's] silence . . . ." (Id. at p. 1021.)
In contrast to Denard, the prosecutor's statements regarding personal accountability in this case cannot reasonably be interpreted as commenting on Perez's silence at trial. Nor was the prosecutor suggesting there was some truth in the case that only Perez's testimony could provide, as the facts were largely undisputed. The prosecution was merely responding to defense counsel's claim that Perez should be found guilty of lesser included offenses (rather than the crimes charged), and defense counsel's suggestion that the deputy's testimony was motivated by revenge and embarrassment. "The prosecutor's remarks, viewed in context, can only be seen as a fair comment on the state of the evidence, comment falling outside the purview of Griffin." (People v. Medina (1995) 11 Cal.4th 694, 756; see Cunningham, supra, 25 Cal.4th at p. 1026 ["Arguments by the prosecutor that otherwise might be deemed improper do not constitute misconduct if they fall within the proper limits of rebuttal to the arguments of defense counsel."].) Perez's alleged claim of Griffin error therefore lacks merit.
Even assuming the prosecutor's statements constituted Griffin error, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Thompson (2016) 1 Cal.5th 1043, 1118 [applying Chapman standard to claim of Griffin error].) As noted by the Denard court, on which Perez heavily relies, "[o]ur Supreme Court has held most indirect Griffin error to be harmless. [Citations.] Indeed, as [People v.] Vargas [(1973) 9 Cal.3d 470, 481] recognized, 'in order for Griffin error to be prejudicial, the improper comment or instruction must either "serve to fill an evidentiary gap in the prosecution's case," or "at least touch a live nerve in the defense . . . ." ' " (Denard, supra, 242 Cal.App.4th at p. 1022.) Here, the prosecutor's comments performed neither of these functions. As discussed, the comments merely responded to defense counsel's suggestions that Perez should not be found guilty of the crimes as charged, but only the lesser included offenses, and that the deputy's testimony was motivated by revenge and embarrassment. In making these remarks, the prosecutor did not draw the jury's attention to Perez's failure to testify or ask the jury to draw an adverse inference from Perez's assertion of his Fifth Amendment privilege. (See People v. Boyette (2002) 29 Cal.4th 381, 455-456 [" ' "[I]ndirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." ' "].)
Perez also relies on People v. Sanchez, but the court there found the Griffin error harmless despite characterizing it as "egregious." (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1536-1537.) In that case, the prosecutor's comment that defendant was " 'hiding from all of you' " could be interpreted only as referring to the defendant and his failure to testify, as opposed to the defendant's defense or case. (Id. at p. 1528.) Although the Sanchez court concluded there was Griffin error and prosecutorial misconduct, it found the error harmless because the errors "were isolated and not accompanied by misstatements of law or the strong appeals to passion and prejudice," and that "the evidence of guilt [was] extremely strong." (Id. at p. 1536.)
Similarly here, even if the prosecutor's challenged statements were erroneous, they were isolated and nonprejudicial, and the evidence of Perez's guilt on the assault charge was strong. The central issue was not whether Perez was guilty, but whether he was guilty as charged or guilty only of the lesser included offenses. Although we have concluded substantial evidence does not support Perez's mayhem conviction, Perez does not contest that his conviction for assault (including the true finding he personally inflicted great bodily injury) is supported by substantial evidence. On this record, any potential harm from the prosecutor's statements was harmless beyond a reasonable doubt. (See People v. Modesto (1967) 66 Cal.2d 695, 711, 714 [finding Griffin error where the prosecutor argued to the jury that the defendant, who was the only person who knew the facts, was sitting in the courtroom, "and just sitting," but concluding that, "[a]lthough we cannot dismiss that comment as an inadvertent and irrelevant breach in trial etiquette, we are convinced beyond a reasonable doubt that its presence at defendant's trial contributed neither to his conviction of first degree murder nor to the imposition of the death penalty"], disapproved on other grounds in Maine v. Superior Court (1968) 68 Cal.2d 375, 383, fn. 8.)
Perez also argues trial counsel provided ineffective assistance by failing to object to the prosecutor's statements. Because we conclude any presumed error was harmless, we also conclude Perez cannot demonstrate a reasonable probability of a more favorable outcome, and thus has failed to establish ineffective assistance. (See People v. Grimes (2016) 1 Cal.5th 698, 735 (Grimes).)
C.
Alleged Misstatement of the Law
Perez argues that his conviction should be reversed because the prosecutor misstated the law of assault and battery in the following remarks from his rebuttal argument:
"There is and there are lesser included offenses. Simple battery, simple assault, and that's what he's advocating for, these simple offenses.In addition to arguing that these comments constituted prejudicial error, Perez argues his counsel was ineffective for failing to object at trial and request a pinpoint instruction.
"A simple battery or simple assault is an offensive touching; it's a push, spitting on someone. Those are examples of simple assaults, simple batteries.
"That goes well beyond a simple battery or a simple assault. This is not a mere push, this is not a mere shove, this is not just spitting on someone. This is significant, this is more than mere minor or moderate harm suffered."
"Although counsel have broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law. . . ." (People v. Bell (1989) 49 Cal.3d 502, 538.) "If there is a reasonable likelihood that the jury would understand the prosecutor's statements as an assertion that defense counsel sought to deceive the jury, misconduct would be established." (People v. Cummings (1993) 4 Cal.4th 1233, 1302 (Cummings), overruled on other grounds in People v. Merritt (2017) 2 Cal.5th 819, 831.) However, "[a]n argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (Cummings, at p. 1302, fn. 47.)
We conclude that the statements do not constitute prosecutorial misconduct or impropriety. The prosecutor's initial statement of the law, that simple battery or simple assault is an offensive touching, was correct. (See People v. Myers (1998) 61 Cal.App.4th 328, 335 ["an offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery . . . ."]; People v. Colantuono (1994) 7 Cal.4th 206, 216 ["An assault is an incipient or inchoate battery; a battery is a consummated assault."], superseded by statute on other grounds as stated in People v. Conley (2016) 63 Cal.4th 646, 660, fn. 4; CALCRIM No. 915 [simple assault; "The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way."]; CALCRIM No. 960 [simple battery; "The slightest touching can be enough to commit a battery if it is done in a rude or angry way."]; see §§ 240 [assault], 242 [battery].)
The prosecutor's comments that followed merely provided examples of common incidents that could amount to simple assault or battery. He did not purport to provide an exhaustive list or explain the scope of offenses that might constitute assault or battery before arguing that the evidence presented at trial established the harm inflicted was significant. As such, it appears the prosecutor was "urg[ing] the jury to focus on what the prosecution believe[d] [wa]s the relevant evidence," which is not improper. (Cummings, supra, 4 Cal.4th at p. 1302, fn. 47.)
Even if the prosecutor's statements were improper or misleading, they cannot be deemed to have been prejudicial given the context of the jury instructions provided. "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.' " (People v. Osband (1996) 13 Cal.4th 622, 717 [concluding that, even if prosecutor's comments misled the jury regarding the law, "any harm was cured by the instructions, which explicitly informed the jury [regarding the law]"].)
Perez does not contend the jury instructions were erroneous in any respect.
Because we conclude that there was no error, and even if there was it was not prejudicial, we likewise conclude that counsel's failure to object or to request an unnecessary pinpoint instruction did not constitute ineffective assistance because Perez is unable to demonstrate a reasonable probability of a more favorable outcome. (See Grimes, supra, 1 Cal.5th at p. 735.)
D.
Asserted Cumulative Error
Perez argues that the cumulative prejudice of the claimed instances of prosecutorial misconduct resulted in an unfair trial, requiring reversal of his convictions. Because we have concluded there was no error relating to the prosecutor's statements, there was no cumulative error. (People v. Valdez (2004) 32 Cal.4th 73, 136 [without a single instance of error, there can be no cumulative prejudicial impact depriving defendant of a fair trial and due process].)
Even if the prosecutor's comments regarding "personal accountability" and examples of assault and battery were erroneous, any errors were isolated and minor and did not render the trial unfair or unreliable in light of the jury instructions, which Perez does not dispute were appropriate, and the uncontroverted evidence in support of the guilty verdict on count 1. We therefore reject Perez's claim that the cumulative effect of any error warrants reversal. (Valdez, supra, 32 Cal.4th at p. 139 [cumulative errors do not require reversal where "none of the errors, individually or cumulatively, ' "significantly influence[d] the fairness of defendant's trial . . . ." ' "].)
III.
Abstract of Judgment
Perez was charged and convicted in count 1 of assault upon a custodial officer by means of force likely to produce great bodily injury, in violation of section 245.3. However, the abstract of judgment states he was convicted in count 1 of "[a]ssault with [d]eadly [w]eapon: [c]ustodial [o]fficer." Perez requests that the abstract of judgment be amended to conform to the jury's verdict. The Attorney General has no objection to this request. "It is, of course, important that courts correct errors and omissions in abstracts of judgment." (People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) As such, on remand, we direct the superior court to prepare an amended abstract of judgment reflecting the jury's verdict.
Section 245.3 provides, "[e]very person who commits an assault with a deadly weapon or instrument or by any means likely to produce great bodily injury upon the person of a custodial officer . . . , and who knows or reasonably should know that the victim is a custodial officer engaged in the performance of that person's duties, shall be punished by imprisonment in the state prison for three, four, or five years."
DISPOSITION
The judgment is reversed as to the mayhem count (count 2). The matter is remanded for resentencing consistent with this opinion. When the superior court prepares an amended abstract of judgment, the superior court shall strike the statement that Perez was convicted in count 1 of "Assault with Deadly Weapon: Custodial Officer," and indicate that Perez was convicted in count 1 of assault on a custodial officer by means of force likely to produce great bodily injury. The superior court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: BENKE, Acting P. J. DATO, J.