Opinion
C083965
07-16-2018
THE PEOPLE, Plaintiff and Respondent, v. JEFFERY EDWARD SNOWDEN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F01939)
An infant, Ka. S., died in the care of his father, defendant Jeffery Snowden, and his mother, codefendant Tianah Maji. A jury found defendant guilty of aggravated child endangerment and found true an enhancement that the endangerment resulted in death. Defendant raises three issues on appeal. Two of the issues involve the trial court's jury instructions and the last issue involves a prosecutorial misconduct claim.
Defendant argues the trial court incorrectly instructed the jury under the accomplice-testimony instruction that defendant's and Maji's testimony had to be corroborated, without limiting the instruction to inculpatory evidence only. Defendant also argues the court erred by failing to instruct the jury that the Penal Code section 12022.95 enhancement was proven only if the jury found his acts resulted in Ka. S.'s death. Finally, defendant argues the prosecutor committed misconduct by inappropriately shifting the burden of proof to defendant in her closing argument. Finding no merit in these arguments, we affirm.
Further section references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Ka. S. and his twin sister, Ki. S., were born in March 2012. Ka. S. was a premature baby weighing six pounds four ounces at birth with good skin color and normal breathing. He was hospitalized for a fever and urinary tract infection when he was around one month old, but everything appeared normal by mid-April. In April, Ka. S. weighed seven pounds one ounce and by the end of May he weighed 10 pounds 10 ounces and was in the 25th percentile for his birth weight and length.
Maji was the primary caretaker of the twins from March to July. In or around August 2012, she moved to San Francisco, leaving the twins and Maji's and defendant's third child, J. S., in defendant's care. Maji occasionally visited the children between November 2012 and May 2013. After Maji left, defendant's friend, A. T., offered to help defendant by taking one of the babies. He accepted her offer, asking her to take Ka. S. Ka. S. lived with A. T. for about a month and one-half starting around August 2012. During that time, defendant never called to check on him and never visited.
When Ka. S. first moved in with A. T., he would "projectile vomit" his formula and was constipated. A. T. changed his bottles and tried to feed him less formula at a time. She told defendant she wanted to change Ka. S.'s formula, but he refused. A. T. switched his formula to a soy-based formula despite defendant's refusal, after discussing the issue with friends. Between the soy formula, the new bottles, and feeding him less at a time, Ka. S. started to keep his food down.
A. T. also started feeding Ka. S. prunes, rice cereal, and bananas, and his bowel movements became more frequent and he was less fussy. In her care, Ka. S. gained weight, slept better, smiled more, and became more interactive. A friend, M. D., noticed "a big difference" -- it looked like Ka. S. was getting better.
A. T. shared everything she had learned about Ka. S.'s nutrition with defendant when she returned Ka. S. to defendant in September 2012. He was angry that A. T. had changed the formula and indicated no interest in changing the formula available to him through his state assistance coverage. After Ka. S. returned to defendant's care, M. D. noticed Ka. S. started spitting up again and was not looking or feeling good. M. D. was concerned about Ka. S.'s weight and offered to have defendant use her car to take Ka. S. to the doctor. Defendant never took her up on the offer. M. D. also talked to defendant about changing Ka. S.'s formula to soy, but he refused. M. D. thought Ka. S. was in a lot of pain and that something was seriously wrong with him.
Another friend, C. A., also had concerns about the formula and asked defendant about Ka. S.'s doctor's visits, to which he responded Ka. S. was fine. When A. T. saw Ka. S. a few months after returning him to defendant, Ka. S. had regressed and appeared thin and frail. A. T. offered to take Ka. S. to the doctor, but defendant did not believe it was necessary. A. T. also offered to watch the other children so that defendant could take Ka. S. to the doctor, but he did not take her up on the offer.
When A. T. saw Ka. S. again in April 2013, he looked worse than ever. He was very thin, had a bloated belly, could barely crawl or hold himself up, had "horrible" skin, would barely eat, was lethargic and fussy, and his teeth were not forming correctly. A. T. did not call the authorities because she was in disbelief as to Ka. S.'s condition. Maji moved back into the apartment on June 4, 2013.
On June 15, 2013, the paramedics were called to defendant's home to treat an unresponsive child, Ka. S. Ka. S. was transported to the hospital, where he was pronounced dead. Ka. S. was 15 months old and weighed only 14 pounds when he died.
Defendant and Maji were respectively charged with murder, aggravated child endangerment with an enhancement that the endangerment resulted in death under section 12022.95, and assault of a child by force likely to produce great bodily injury, resulting in death.
I
Medical Testimony
A
Prosecution
Gregory Reiber performed Ka. S.'s autopsy. Ka. S. had "healing rib fractures of his left [three] ribs and an almost completely healed fracture of [one of his right ribs]." The left ribs had been fractured simultaneously about two to three weeks and the right one about six weeks before Ka. S.'s death. The rib fractures were likely caused by either a blow to the chest or the squeezing of the chest. It was difficult to assess the force needed to cause these injuries because of Ka. S.'s level of malnutrition, but it would have required "at least a moderate amount of force." If the Heimlich maneuver were performed incorrectly, it possibly could have caused the fractures. A toddler bouncing on top of Ka. S.'s ribs, however, was unlikely to be the cause unless the child dropped on him with force.
Reiber found a collection of fluid and pus in Ka. S.'s left chest cavity indicating an ongoing chest infection. The fluid and pus were likely caused by the left rib fractures. The most concerning finding was the inadequacy of Ka. S.'s nutrition; his weight was below the first percentile and his height was in the second to third percentile for his age. His organs and thymus gland were severely underdeveloped as well.
Ka. S. also had injuries to his upper lip and forehead, scars on his body in random locations, and patches of hair missing on his scalp. A curved scar on Ka. S.'s abdomen was worrisome because of its shape, indicating Ka. S. may have been struck with an object like a looped over cord or belt. Ka. S. was missing a front tooth that was likely knocked out by some sort of blow to the mouth. A "face-plant" would have been insufficient to knock out the tooth.
The probable cause of Ka. S.'s death was the respiratory failure and sepsis caused by fluid in his chest arising from the rib fractures, combined with his chronic malnutrition. Reiber opined the death was not accidental. He found no abnormalities indicating Ka. S. had a genetic disorder called Fragile X, which can result in chronic long-term developmental issues that can lead to a reduced lifespan. Ka. S. received the standard newborn genetic testing at birth, and his results were normal.
B
Defense
Dr. Michael Weinraub, a pediatrician, testified for the defense. He said a child's failure to thrive could be caused by a chronic infection or a genetic disorder. Ka. S. had a urinary tract infection in the first 30 days of his life and tests done at that time showed his white blood cells were three times the normal number, indicating a "raging infection" that could have been meningitis. The failure to perform adequate testing regarding the infection resulted in a gap in understanding of Ka. S.'s failure to thrive. He also believed more should have been done to determine the cause of death.
Weinraub further said that Ka. S.'s physical features, such as the size of his forehead, the location and rotation of his ears, the distance between his pupils, and the folds by his eyes and nose, warranted a genetic workup because they were dysmorphic and possibly indicated a genetic disorder. No such testing was done; thus, there was no proof of any genetic disorder. Weinraub had, however, followed Ki. S.'s progress following Ka. S.'s death to evaluate the likelihood of a familial disorder relating to a failure to thrive. Ki. S. had an eating disorder and was developmentally behind, possibly indicating a genetic disorder. Weinraub said the likelihood of a genetic condition increases when children in the same household suffered from the same failure to thrive pattern. He was aware that Ki. S. had steadily gained weight after being removed from defendant's care, but explained that he would have expected her to recover within three months if her condition stemmed from nutrition alone and it took her more time to recover.
He further testified the force necessary to fracture Ka. S.'s ribs would have been less than normal because his bones were thin, and he believed the fractures could have been caused by a rough child falling, sitting, or standing on him. He acknowledged that the fractures could also have been caused by someone performing the Heimlich maneuver. Regarding Ka. S.'s collapsed lung, Weinraub opined it could have been caused by incorrect intubation in the emergency room.
II
Witness Testimony
A
Maji
Maji described Ki. S. as aggressive and testified she would occasionally sit on Ka. S., pull his hair, and take his bottle. A couple of weeks before Ka. S. died, the children were sick and had runny noses. Ka. S. still had a low-grade fever the week before he died. Maji gave Ka. S. Tylenol and his fever went down; thus, she did not believe it was necessary to take him to the doctor.
On June 12, defendant sent a text to Maji stating he hated Ka. S. He further stated he had repeated nightmares about hurting Ka. S. While Maji was concerned about Ka. S. following those texts, she did not voice her concern to defendant.
The night before Ka. S. died, Maji put him to bed around 10:30 or 11:00 p.m. after feeding him. He did not appear to act any different from normal before he went to bed. The next morning she found him unresponsive and face down in his playpen and called 911.
B
Defendant
Defendant testified he tried to supplement Ka. S.'s food with rice, oatmeal, table food, and soy formula. Ka. S. was a picky eater but defendant believed Ka. S. was getting enough food. He explained that he gave Ka. S. regular formula rather than soy formula because the doctor recommended the regular formula. Ka. S. spit up less when he began drinking milk and eating solid foods, however, he would choke on the solid foods. Defendant talked to his mother about Ka. S.'s eating problems and she advised him Ka. S. would grow into a normal size based on her experience with her twins; hearing about his mother's experience put defendant at ease. She further suggested he perform the Heimlich maneuver when Ka. S. choked. Defendant performed the maneuver on Ka. S. about five times in 2013, including a few times three to four weeks before Ka. S. died. Ka. S. would cough up the food and cry after the maneuver was performed, but he did not express any pain.
Defendant believed Ka. S. injured his mouth when he fell forward and hit his mouth on the ground in the apartment. His front tooth later fell out. He planned to take Ka. S. to the dentist but he did not have a Medi-Cal card to make the appointment. Ka. S. also sometimes hurt himself when he was having tantrums, and Ki. S. and J. S. were sometimes rough with Ka. S. For example, Ki. S. would sit and stand on Ka. S. and take his bottle and toys, while J. S. once slammed Ka. S.'s forehead into the floor. Defendant never beat, whipped, or punched Ka. S., and he never squeezed him out of frustration.
Defendant believed the children were under Maji's medical coverage and he could not take the children to the doctor or dentist under her coverage. He once attempted to put the children under his Medi-Cal coverage, but he only received a letter indicating coverage was cancelled for the children, not that they were covered. Thus, he did not believe the children had medical coverage prior to Ka. S.'s death. He also was not aware he could seek dental and emergency services without insurance. Defendant acknowledged his mother told him to take Ka. S. to the doctor and he did not.
He knew Ka. S. was sick on June 7. He texted Maji saying he was thinking about taking all of the children to the emergency room, but he did not. He first stated he did not know that Ka. S. needed an emergency appointment, but then acknowledged he had sent a text to that effect and he "knew that he needed an emergency appointment." Defendant checked on the children around three in the morning the day Ka. S. died. Ka. S. made a clicking sound when breathing, which defendant assumed was chest congestion due to a cold. He also noticed Ka. S. slept more in the weeks leading up to his death and did not want to be held.
Defendant acknowledged he lied to the detective during his interviews. He also acknowledged he said hateful things about Ka. S. when he talked to Maji. He explained, however, his negative comments were meant as jokes to antagonize Maji and that he felt ashamed of those text messages.
C
Other Witnesses
Two medical witnesses testified that anyone can walk into an emergency room with a child and will be seen even without insurance. Defendant's mother testified he talked to her about the different weights between Ka. S. and Ki. S., and she suggested he switch the formula. She also told defendant once or twice to take Ka. S. to the doctor. She further testified she suggested defendant do the Heimlich maneuver if Ka. S. choked, and comforted him that Ka. S. would catch up in weight later based on her experience with her twins. She also suggested that defendant send Ka. S. to her because he needed more attention, extra help and care, and she believed his problems were serious. She was unable to take Ka. S., however, due to work obligations.
A government assistance eligibility worker testified that defendant renewed his government services benefits in person with her on November 30, 2012, including medical and dental coverage for the children. She had defendant sign a form notifying him of some health care services available to his children.
III
Jury Deliberation
The jury submitted seven questions to the court and deliberated for more than four days prior to returning its verdicts. In the first and second questions, the jury asked for transcripts of the government assistance eligibility worker's testimony regarding the completion of the renewal application and defendant's testimony regarding the type of drugs he used. The jury's third question concerned the definitions of "required act" under the instruction regarding the union of an act with unlawful intent, and "willfully" under the aggravated child endangerment instruction.
In the fourth question, the jury asked whether "the defendant have to have knowledge that he/she is acting in a reckless way" for purposes of criminal negligence. The jury further asked: "Do we need to consider whether or not the defendant is a reasonable person in regards to Part 2 of criminal negligence" and asked the court to define the term "reckless." The court responded criminal negligence "requires that a reasonable person in the same situation would know the act(s) creates a high risk of death or great bodily injury, so that, even if one does not know he or she is acting in a reckless way or creating such a risk, the act(s) (is/are) the equivalent of disregard for human life or indifference to the consequences of the act." The court further responded "[t]he jury need not consider whether a defendant is a reasonable person or not." "A person acts recklessly (1) he or she is aware that his or her actions, present a substantial and unjustifiable risk of harm, and (2) he or she intentionally ignores that risk."
The jury's fifth question also focused on the reckless element of criminal negligence. The jury asked the court to define the phrase "creates a high risk." The court responded "[a]n Act 'creates a high risk' when the likelihood of the effect or consequence of the act is more than minimal or moderate. Consider these comments along with all the other instructions in this case." The jury further asked to review "Dr. Reiber's testimony for the causes of death from the autopsy report?"
In the sixth and seventh jury questions, the jury notified the court regarding the status of its deliberations.
IV
Verdicts
The prosecution dismissed the assault charges against defendant and Maji. The jury found Maji not guilty on all counts but deadlocked on the lesser included offense of child endangerment not likely to cause great bodily injury or death. The jury also found defendant not guilty of murder but was unable to reach a verdict on the lesser included offense of involuntary manslaughter. The jury found defendant guilty of aggravated child endangerment and found the section 12022.95 allegation true, stating "[w]e, the jury . . . further find the allegation that under circumstances and conditions likely to produce great bodily harm and death, [defendant] willfully caused and permitted a child to suffer, and inflicted thereon unjustifiable pain and injury that resulted in death pursuant to Penal Code Section 12022.95 to be: [¶] TRUE." The court declared a mistrial on the two deadlocked lesser offenses.
The court found defendant had one prior strike conviction and denied defendant's motion to strike the conviction. Defendant was sentenced to 16 years in prison.
DISCUSSION
I
Jury Instruction Challenges
Defendant raises two challenges to the trial court's jury instructions -- the court's accomplice-testimony and section 12022.95 enhancement instructions -- arguing each requires reversal because the instructions were erroneous in law, violated his federal constitutional rights, and resulted in prejudice. As a preliminary matter, the People argue defendant forfeited these claims by failing to object to the instructions at the time of trial. On the merits, the People argue that, when the accomplice-testimony instruction is read collectively with the other instructions, the jury was properly informed, but the People acknowledge "the Fourth District Court of Appeal recently found error based on a similar combination of accomplice-testimony instructions." While the People concede the instruction on the section 12022.95 enhancement was incorrect, they argue there is no likelihood the jury misapplied the law. The People further argue that any error arising from these instructions was harmless.
The People concede that, in People v. Smith (2017) 12 Cal.App.5th 766, 778-780, the Fourth District Court of Appeal recently found instructional error based on a similar combination of accomplice-testimony instructions given in this case.
We need not decide whether defendant forfeited the instructional error claims or whether such instructions were erroneous because we conclude that, even assuming error, defendant suffered no prejudice. We also need not address the parties' dispute regarding the appropriate prejudice analysis because defendant suffered no prejudice under either the federal harmless-beyond-a-reasonable-doubt standard enunciated in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711], or the state reasonably probable standard enunciated in People v. Watson (1956) 46 Cal.2d 818, 836.
A
The Accomplice-Testimony Instruction Did Not Prejudice Defendant
Defendant argues CALCRIM No. 301's statement that the testimony of a single witness can prove any fact "[e]xcept for the testimony of defendant Maji and [defendant], which requires supporting evidence if you decide he or she is an accomplice . . . ," was erroneous because it "compelled the jurors to disregard the exculpatory portions of [defendant's] and Maji's testimony because they were not corroborated by supporting evidence." He claims the error was prejudicial because, had a correct instruction been given indicating only incriminating testimony needed to be corroborated, jurors might have concluded he did not have the intent necessary for criminal negligence, which is required for the aggravated child endangerment conviction. Specifically, defendant argues "the jurors may very well have concluded that [defendant's] failure to get [Ka. S.] medical attention was not criminally negligent, but was the result of 'ordinary carelessness, inattention, or mistake in judgment.' "
Defendant points to the following to support his position: his and Maji's testimony that they did not realize the extent of Ka. S.'s medical problems and believed he just had a chest cold; Maji's testimony Ka. S. seemed fine the night before his death; and defendant's testimony that Ka. S.'s injuries happened accidentally, he did not give Ka. S. the soy formula because a doctor recommended a different formula, and he failed to take the children to the doctor or dentist because he believed he had no insurance coverage and was unaware he could go to the emergency room without insurance coverage.
The problem with defendant's argument is that all the cited testimony goes to defendant's subjective state of mind and intent, which is inapplicable to the finding of criminal negligence. Criminal negligence exists "when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm." (People v. Rodriguez (1960) 186 Cal.App.2d 433, 440.) Criminal negligence is, thus, judged by an objective standard and such a finding is warranted if the defendant's belief was objectively unreasonable, even if the defendant had a subjective, good faith belief his or her actions posed no risk. (People v. Butler (2010) 187 Cal.App.4th 998, 1008-1009.)
Nothing in the testimony identified by defendant would have informed the jury's evaluation of whether defendant's failure to get Ka. S. medical attention was a gross departure from the way an ordinarily careful person would act in the same situation or whether a reasonable person would have known that acting in that way would naturally and probably result in harm. Defendant notes the jury asked questions regarding the criminal negligence element of the instruction, stating it demonstrates "the jurors were struggling with whether the prosecution had proven that [defendant] acted with the criminal negligence required" for a conviction. Not so. The jury questions regarding the criminal negligence element merely indicate that the jury was deliberate in applying the correct standard of law, questioning whether defendant's subjective intent was a consideration in determining criminal negligence -- to which the court properly responded that it was not.
Given that, assuming the instruction was erroneous, the evidence identified by defendant would not have informed the jury's decision on the element of criminal negligence as to defendant's failure to get Ka. S. medical attention, no prejudice could be found under either Chapman or Watson.
B
The Section 12022 .95 Instruction Did Not Prejudice Defendant
The court instructed the jury on the section 12022.95 enhancement as follows: "It is further alleged that in the commission of [aggravated child endangerment], the defendant under circumstances or conditions likely to produce great bodily injury or death willfully caused the death of [Ka. S.]. In order to prove this allegation, the People must prove the following: [¶] 1. Defendant acted under circumstances or conditions likely to produce great bodily harm or death; [¶] 2. Willfully caused, permitted or inflicted unjustifiable physical pain or mental suffering on a child, and; [¶] 3. The infliction of this punishment or injury resulted in great bodily harm or death."
Defendant argues the court improperly instructed the jury that the allegation was proven if defendant's acts or omissions resulted in great bodily harm or death, whereas the allegation is only proven if the jury finds his acts resulted in death. Thus, the jury could have erroneously found the enhancement true by concluding his acts or omissions resulted in great bodily harm. We assume instructional error occurred, but find no prejudice.
We evaluate the issue of prejudice arising from an erroneous instruction by reviewing the instructions as a whole, the entire record of trial, and the arguments of counsel. (People v. Owens (1994) 27 Cal.App.4th 1155, 1159; People v. Dieguez (2001) 89 Cal.App.4th 266, 276; People v. Smithey (1999) 20 Cal.4th 936, 963.) When we take all of the facts into account, no prejudice is found under either Watson or Chapman because the jury understood that, to find the enhancement true, it had to find defendant's acts caused Ka. S.'s death.
Although the specific elements identified in the instruction do not include the requisite "and caused death" directive, the beginning of the instruction starts with "[i]t is further alleged that in the commission of [aggravated child endangerment], the defendant under circumstances or conditions likely to produce great bodily injury or death willfully caused the death of [Ka. S.]." (Italics added) Additionally, during closing arguments, the People stated the aggravated child endangerment allegation requires a finding "the abuse causing the great bodily injury or likely to produce great bodily injury resulted in death." Maji's counsel explained the aggravated child endangerment allegation requires a finding that "the situation they put him in would cause his death. They realized it would cause his death. They didn't care that it would cause his death." And, defendant's counsel also stated: "Moving on to the enhancement to [aggravated child endangerment], which is the death." Further, in tandem with the jury's questions regarding the criminal negligence element, the jury asked to review Reiber's testimony regarding the cause of death, indicating that it was crediting his testimony in that regard.
Moreover, the jury found "the allegation that under circumstances and conditions likely to produce great bodily harm and death, willfully caused and permitted a child to suffer, and inflict thereon unjustifiable pain and injury that resulted in death pursuant to Penal Code Section 12022.95 to be: TRUE." (Italics added.)
When we read the instruction, closing arguments, and jury questions together with the verdict, we believe the jury properly understood that the enhancement required a finding that defendant's acts resulted in death. (See, People v. Hughes (2002) 27 Cal.4th 287, 377 [instructions read together with verdict form evidenced a proper finding by the jury]; People v. Denman (2013) 218 Cal.App.4th 800, 812 [instructions read together with verdict form evidenced jury would have understood duty].) Accordingly, there was no prejudice even assuming instructional error.
II
There Was No Prosecutorial Misconduct
Defendant argues the prosecutor committed misconduct by misstating the burden of proof during closing argument and, to the extent defense counsel forfeited the claim, counsel was constitutionally ineffective. The People respond the claim was forfeited because defendant failed to timely object or seek an admonition at trial, no misconduct occurred, and, even if misconduct occurred, it was not prejudicial. Because we address defendant's claim on the merits, we do not consider the forfeiture and ineffective assistance of counsel claims.
"The applicable federal and state standards regarding prosecutorial misconduct are well established. ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] 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.' " ' [Citation.] As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion -- and on the same ground -- the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when 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. Samayoa (1997) 15 Cal.4th 795, 841.)
Here, defendant points to a section of the closing argument in which the prosecutor said the jury would have to determine whether what happened to Ka. S. was intentional or accidental. In this regard, she stated: "You have to believe what [defendant] has said in both his statements before trial, the statements that the detective went over with you. [¶] And you have to believe what he said when he took the stand. You have to believe [defendant] if you are going to find that this was an accident and unintentional, right? [¶] Same thing with Ms. Maji. If you think that this is a [sic] accident or unintentionally [sic], you have to believe what Ms. Maji said before trial and then when she took the stand, right?" Reading this section in the context of the entirety of the closing argument, it is clear the prosecutor was discussing witness credibility, not burden of proof. For example, after the section quoted by defendant, the prosecutor added: "Do you want to completely disregard everything that [defendant's] told you throughout this trial because you know that he lied, not just here but numerous times, or do you want to consider some of it and disregard others? You guys get to decide that."
Further, this portion of the closing argument was taken from the prosecution's discussion of the second degree murder count and the jury's consideration of the first element of the count -- whether defendant's acts were intentional rather than accidental. Nothing in the aggravated child endangerment count or the enhancement under section 12022.95 required a finding that defendant's act was intentional. Because defendant was found not guilty of second degree murder and the court dismissed the lesser included offense, this portion of the closing argument resulted in no prejudice. Accordingly, we find the prosecutor did not commit prejudicial misconduct.
We also note that the trial court specifically instructed the jury that the People had the burden to prove guilt beyond a reasonable doubt on each element of the charged offenses, and nothing an attorney says is evidence. The jury is presumed to have followed the court's instruction. (People v. Morales (2001) 25 Cal.4th 34, 47; People v. Redd (2010) 48 Cal.4th 691, 740 ["had any juror interpreted the comments to indicate that defendant had a burden of proof, this impression would have been dispelled by the instructions and the numerous reminders to the jurors that the People bore the burden of proving defendant's guilt"].)
III
There Was No Cumulative Error
Defendant seeks reversal based on cumulative error. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) Having rejected all of defendant's claims of error, "we discern no prejudice -- singly or cumulatively -- that warrants reversal." (People v. Tuggles (2009) 179 Cal.App.4th 339, 388.)
DISPOSITION
The judgment is affirmed.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Duarte, J.