Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 203394
Lambden, J.
Defendant Shaleen Tindel appeals from a judgment after jury trial sentencing him to two years in state prison for committing assault with force likely to produce great bodily injury. Defendant argues on appeal that reversal of some or all of the judgment and conviction is necessary because the trial court erred in instructing the jury, the prosecutor engaged in purported misconduct, and the court failed to account for all of defendant’s presentence credits. We affirm the judgment, as amended by the trial court regarding presentence credits during the pendency of this appeal.
BACKGROUND
In May 2008, the San Francisco County District Attorney charged defendant by information with one count of first degree robbery of a transit passenger in violation of Penal Code section 211, and one count of assault with force likely to produce great bodily injury in violation of section 245, subdivision (a)(1). The district attorney also alleged for both offenses that defendant personally inflicted great bodily injury on Joshua B. in violation of section 12022.7, subdivision (a).
All further statutory references are to the Penal Code unless otherwise specified.
At the subsequent jury trial, the following evidence relevant to this appeal was introduced regarding the incident, which occurred on the night of July 12, 2007, on the M-Ocean Muni train in San Francisco, California.
The Video Evidence
The prosecution introduced into evidence a Muni surveillance video that was played for the jury, and which we have reviewed. One of the camera angles, from the rear of the train facing forward, shows that prior to Joshua’s entrance, a young man gets on the train unaccompanied and sits in the rear, on the left side of the aisle. At another stop, two young men get on, soon followed by a third. The three greet the man on the left side of the aisle, and then sit and talk in the rear of the train.
The parties do not dispute that a young man then gets on the train who is Joshua. He sits some distance away from the others, but moves to the aisle seat of a two-seat row on the right side near one of the men, after that man calls out to him. Joshua’s face and upper body are plainly visible, but a row in front of him blocks the view of most of his lower body. He talks a little with the threesome.
Almost four minutes after getting on the train, Joshua pulls the window cord, presumably to request a stop. Within a minute, one of the threesome, defendant in the present case, walks over to where Joshua is sitting and leans over him. Another of the three comes over, shoves Joshua into the window seat, and sits next to him. Defendant then sits behind Joshua, puts his left arm around Joshua’s neck, pulls him back, and holds him. The man sitting next to Joshua appears to search around, then passes a backpack to the third man, who has moved into the seat in front of Joshua.
On appeal, defendant states, “The defense acknowledged that appellant had been involved in an assault on Joshua B., which was captured on a Muni surveillance video.” Defendant, in a police interview that we summarize below, denied he was the person in a photo still taken from the video that was shown to him, but said he and his “cousins” were involved in a confrontation on a Muni train with a man whom defendant talked to from behind and grabbed. Joshua testified that defendant was one of the three people who confronted him on the Muni train, and that the person in the video choking him looked like defendant. In closing argument, defense counsel conceded that “[t]he focus of the case was not whether there was an assault or not. There was an assault. That’s what we see, is an assault. The question is, was there a robbery and was great bodily injury inflicted on Joshua during the course of the assault and the robbery?” Given the evidence and argument, it is apparent that defendant is as we identify him in our summary of the video herein.
As the third man searches the backpack, pulling out a boot at one point, the three talk to, or at, Joshua, and defendant and the man sitting next to him search Joshua. Joshua does not resist. Defendant drapes his arm over Joshua’s shoulder at one point, but is no longer holding him by the neck. What is said is unclear; one voice can be heard saying something like, “I got no money, got nothing on me.” The man sitting next to Joshua taps or jabs at his face while addressing him, and a voice repeatedly says words to the effect of “he has nothing on him.” Among other things, defendant appears to search the front of Joshua’s body with his hand and at one point reaches down, then leans back and seems to put something inside his jacket.
About eight minutes after Joshua gets on the train, the man sitting next to him moves his arm along Joshua’s neck and face. The man sitting in front of Joshua stands up and faces Joshua, momentarily obscuring the camera’s view of Joshua and defendant as verbal sounds suggesting struggle, something like, “mmmm, mmmm, ” can be heard. As the man in front of Joshua moves, defendant can be seen with his right arm wrapped firmly around Joshua’s neck, pulling Joshua straight up and back in his seat. Joshua’s right hand is up around defendant’s arm. The man sitting next to Joshua also stands up, and a voice can be heard saying something like, “Hold him like that.” Defendant continues to wrap his right arm firmly around Joshua’s neck and his left arm can be seen pressed against Joshua’s neck. Joshua is struggling, and his face reddens as he raises his hands up around defendant’s arms. The second man, who has sat down next to Joshua again, leans in and continues talking as Joshua’s face appears to redden more.
Ten to 15 seconds after defendant has taken hold of Joshua’s neck, the man sitting in front of Joshua, says, “Let him go, let him go, ” and laughs. Defendant continues his hold, however, and Joshua raises his hands again, his face now very red. The man sitting in front of Joshua giggles, waves his hand at defendant, and a voice can be heard saying something like, “Stop, stop, stop, stop, stop, be cool, be cool.” The man sitting next to Joshua turns towards defendant and a voice can be heard saying something repeatedly like, “that’s enough.” Defendant continues his hold and the man moves away and towards the back while laughing.
Approximately 30 seconds after defendant first wraps his arm around Joshua’s neck, he lets go. One of the men momentarily blocks the camera’s view of Joshua, but the reflection in the train window indicates that Joshua slumps to his left and his head stops against the train window. A second or so later, when the man in front of him sits down, Joshua is in this same position, not moving, and his eyes appear to be closed. A few seconds later, defendant pulls back on Joshua’s right shoulder and Joshua turns his head for a moment, then leans back against the window again as the man who had sat next to him returns. At this man’s prodding, while the three laugh, Joshua, pulls himself up in his seat and puts his head in his hands, leans back toward the window, and puts his hand to his head. (Around this time the man sitting on the left side of the aisle gets up, slaps hands with each of the three men, walks to the front, and exits the train.) He then moves about some in his seat, one of the men reaching across him at one point as Joshua seems to try to get up.
The three men then exit from the back of the train. The last one out, the man who sat next to Joshua, stops and says, “Bro, we’re fucking with you, alright? When Joshua does not look at him he says louder, “Bro!” Joshua looks up and the man repeats, “We’re fucking with you.”
After all of the men leave, Joshua sits up, looks around, moves around in his seat, looks at something in his hand, and yanks on the window cord. He stands up and, taking his backpack, walks to the train’s middle door, pressing a dark small object against his right ear, apparently a phone. He exits about 15 seconds later, a little more than 10 minutes after he got on the train.
Other Evidence
Defendant contends on appeal that the evidence for his conviction for assault with force likely to produce great bodily injury was not strong, in significant part because inconsistencies between Joshua’s testimony and previous statements raised important questions about his credibility. As we discuss herein, the surveillance video alone contained very strong evidence for defendant’s conviction. Nonetheless, we summarize the testimony of Joshua B., and of officers who investigated the incident, to provide background for defendant’s contentions.
Joshua B.’s Testimony
Joshua, 16 years old at the time of the incident, testified that on the night in question, he got on the M-Oceanview Muni train about 10:30 p.m. He moved to a seat close to the aisle in the back of the train after someone called to him because he thought the people there “were going to be cool.” He saw defendant and three other people. A few minutes later, someone moved him over into a window seat with their shoulder, but he could not recall who did it, or where defendant went at this point. He was a little afraid.
Joshua recalled that he had a backpack with some clothes and shoes in it, and a wallet with a “Fast Pass” in it, but no money. He denied having brass knuckles. The person who stood over him in the surveillance video was threatening, but he could not recall what was said to him. The person in front of him took his backpack without his permission, while he was “cornered” by the person sitting next to him. They tried to go through his pockets.
Joshua further testified that he recalled someone putting an arm around his neck and forming a chokehold with the other arm, but could not recall who did it. “A lot” of pressure was applied to his neck, and he was unable to breathe. He could not recall how long he was held in that position, and lost consciousness at some point, although he did not know for how long. When he woke up, the three were gone and he felt woozy. It took him a couple of minutes to regain his composure. He still had his backpack and his cell phone, and called his grandmother, with whom he lived. He did not have a wallet in his hand when he exited the train car and later discovered it was gone. After he got home, she called the police, who arrived within 10 minutes. He did not have any injuries beyond a couple of scratches on his neck.
A month or two later, Joshua talked to Inspector Danker. He did not recall telling Danker about someone hitting him with brass knuckles, and could not recall if that occurred.
On cross-examination, Joshua testified that he did not recognize any of the people in the back of the train, and denied telling Danker that he recognized one of them and that defendant did nothing to him. He acknowledged that he had testified in a preliminary hearing that defendant was in front of him, just looking. He did not recall telling previous defense counsel that defendant had not touched him, but recalled previously identifying defendant from photographs as the one who choked him.
Joshua reviewed the video again, and denied that his wallet, or anything else, was in his left or right hand at certain points in the video. He thought he was unconscious for two to three minutes, until the men left the train. He did not recall telling police that he saw the men get off the train or heard them indicate that they were just playing. He recalled telling the police that he was tapped on the face, but not punched. He also recalled that after he regained consciousness, he did not call anyone while on the train, and thought he was scratching his hair on the video. He did not seek or receive any medical attention as a result of the incident, although it was offered to him by the officer who interviewed him at his grandmother’s house.
The defense also introduced into evidence an excerpt of Joshua’s preliminary hearing testimony, in which Joshua confirmed that he had told previous defense counsel that defendant had not touched him, and testified that this was the truth.
Officer Escobar’s Testimony
Officer Rolando Escobar of the San Francisco Police Department testified that he interviewed Joshua on the night of July 12, 2007. Joshua told Escobar that he was on a Muni train when an individual sat next to him and asked him what was in his pockets, and began searching the front area of his pockets. The individual took out a set of chrome brass knuckles and said, “You want to get hit with these?” Another individual came from behind and choked Joshua, who lost consciousness. When he came to, he saw the two individuals get off the Muni train and heard them say something like that they were just playing. He described his two attackers to Escobar as a light-skinned black male between 19 and 21, wearing a black beanie, a black hooded sweatshirt, and blue jeans, and a black male with a dark complexion wearing a black hooded sweatshirt and blue jeans. Escobar did not ask Joshua if he had any injuries, did not see any, Joshua did not show him any, and Joshua indicated he did not need medical attention.
On cross-examination, Escobar said the 911 dispatcher had indicated a wallet and backpack had been stolen in the incident. Joshua told Escobar he realized his wallet was missing while he was on the bus, after the individuals had left. He did not tell Escobar his backpack was stolen, nor that he was unconscious when the individuals left. Joshua’s grandmother told Escobar she had made the 911 call.
Inspector Danker
Inspector Brian Danker of the San Francisco Police Department testified that he showed photo stills of the individuals in the Muni surveillance video to other officers, eventually identifying defendant and others as potential suspects. About a week after the incident, he met with Joshua and showed him the photo stills. Joshua told him the person in People’s exhibit No. 6, apparently defendant, hit him in the face with brass knuckles, but did not choke him. Joshua said another man, depicted in People’s exhibit No. 9, choked him. Danker also recalled Joshua telling him he recognized one of the individuals, “the lighter-skinned guy” wearing a black beanie that night, having “seen him around, ” but Danker did not clarify who that was with Joshua.
Danker further testified that he interviewed defendant, and recorded this interview with defendant. A portion of it was played for the jury, which also received a transcript of it, all of which were introduced into evidence. In the interview, defendant denies he is the person in one of the photo stills, People’s exhibit No. 6. Later, after Danker tells him about the surveillance video, he says he was on the Muni train with his cousins the night of July 12 when a man called them over. The man pulled out some brass knuckles, said he had some “weed” with him, and asked if they wanted some. Defendant talked to the man from behind as the man argued with one of defendant’s cousins, who indicated the man had previously put a gun in his face and robbed him. Defendant grabbed the man, but did not choke him. His cousin took the brass knuckles from the man and “like hit him, ” but no one searched his pockets. When told he put his arm around the man’s neck, defendant said, “I put my arm around him like don’t move man [unintelligible] my cousin said he robbed him with a gun so I don’t know what’s next.”
The Verdict and Sentence
The jury found defendant not guilty of robbery, guilty of assault by means of force likely to produce great bodily injury, and found the great bodily injury enhancement allegation untrue as to that count. The court sentenced defendant to the low term of two years in state prison, less custody credit of 618 days. Defendant filed a timely notice of appeal.
After defendant filed his initial opening brief, we granted his request that he submit supplemental briefing regarding whether, under section 4019, as recently amended, he was entitled to an increase in his presentence credits. The parties subsequently briefed this issue.
DISCUSSION
I. The Court’s “Likely” Instruction
A. The Proceedings Below
The court instructed the jury on the elements of assault by means of force likely to produce great bodily injury, for which defendant was charged pursuant to section 245. These instructions included a version of CALCRIM No. 875, which stated in relevant part that “the People must prove that... [t]he defendant did an act that by its nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury.... [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate.”
During its deliberations, the jury asked a number of questions, including one regarding the term “likely.” The jury wrote, “Re instruction 875, item # 1 (‘likely to produce great bodily injury’)—is there a more specific or detailed definition of ‘likely’ available?”
The court conferred with counsel, but their discussion is not contained in the record. The court then, without indication of any objection in the record, responded to the jury in writing as follows:
Apparently, there is no reporter’s transcript or court reporter stenographic notes available for the proceeding. The clerk’s transcript for that day indicates that the court sent its response after conferring with counsel, and does not indicate that defendant objected to it.
“The law does not permit me to give you a more detailed definition of what constitutes great bodily injury and what does not, or a more detailed definition of what degree of likelihood might exist for you to conclude that something is likely to produce great bodily injury. To the extent that the instructions do not give specific definitions to words and phrases, you are to give those words and phrases their ordinary, everyday meanings (see Instruction 101, ninth paragraph).”
B. Analysis
Defendant argues that the trial court erred in its response to the jury’s request for a further definition of “likely, ” abusing its discretion and violating defendant’s federal rights to due process and a fair trial. We find no error and, assuming for the sake of argument that error occurred, any error was harmless.
The People argue that, in the absence of objection, defendant has waived his instructional error appellate claim. (See, e.g., People v. Roldan (2005) 35 Cal.4th 646, 729 [when “a trial court decides to respond to a jury’s note, counsel’s silence waives any objection under section 1138”], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Defendant argues that his lack of objection did not waive his appellate claim under the circumstances, in part because the court’s purported error affected his substantial rights. (See, e.g., § 1259; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [“the failure to object to an instruction in the trial court waives any claim of error unless the claimed error affected the substantial rights of the defendant”].) We do not determine whether waiver occurred because we conclude that, assuming none occurred, the court’s response was not in error, and any error was harmless.
1. The Court Did Not Err
Generally, “[a] court is required to instruct the jury on the points of law applicable to the case, and no particular form is required as long as the instructions are complete and correctly state the law. [Citation.] In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)
Defendant relies heavily on the court’s duty as stated in section 1138, which states: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.” (§ 1138.)
Thus, section 1138 gives the trial court a “statutory obligation ‘to provide the jury with information the jury desires on points of law.’ ” (People v. Yarbrough (2008) 169 Cal.App.4th 303, 316.) The court “ ‘must attempt “to clear up any instructional confusion expressed by the jury.” [Citation.]’ [Citation.] ‘This means the trial “court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citation.] This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under... section 1138 to determine what additional explanations are sufficient to satisfy the jury’s request for information....” ’ ” (Id. at pp. 316-317.)
Section 1138 “does not demand elaboration upon the standard instructions by the trial court when the jury expresses confusion, but rather directs the court to ‘consider how it can best aid the jury and decide whether further explanation is desirable, or whether the reiteration of previously given instructions will suffice.’ ” (People v. Yarbrough, supra, 169 Cal.App.4th at p. 317.) “However, ‘[a] definition of a commonly used term may nevertheless be required if the jury exhibits confusion over the term’s meaning. [Citation.]’ ” (People v. Solis (2001) 90 Cal.App.4th 1002, 1015.) “ ‘[A] court must do more than figuratively throw up its hands and tell the jury it cannot help.’ ” (Ibid., quoting People v. Beardslee (1991) 53 Cal.3d 68, 97.)
In the present case, the court, after discussing with counsel the jury’s request for a more specific or detailed definition of the word “likely, ” as used in CALCRIM No. 875, instructed the jury that it was not permitted to “give... a more detailed definition of what degree of likelihood must exist” for force to be “likely to produce great bodily injury.” However, the court then stated that, “[t]o the extent that the instructions do not give specific definitions to words and phrases, you are to give those words and phrases their ordinary, everyday meanings....” Thus, the trial court exercised its discretion under section 1138 to in effect instruct the jury to give the term “likely” its ordinary, everyday meaning.
Defendant does not argue that the term “likely” in CALCRIM No. 875 is used in any technical sense peculiar to the law. To the contrary, he cites a case that specifically concludes the meaning of “likely” for the purposes of section 245 is “ ‘ “probable” or... “more probable than not.” ’ ” (People v. Russell (2005) 129 Cal.App.4th 776, 787 (Russell), quoting People v. Savedra (1993) 15 Cal.App.4th 738, 744 (Savedra).) The case Russell relies on, Savedra, states that “in ordinary usage... ‘likely’ means ‘probable’ or... ‘more probable than not.’ ” (Ibid.) Therefore, the court’s response to the jury that it give the term “likely” its ordinary, everyday meaning in effect instructed the jury to apply the correct legal definition. It might have been better practice for the court to provide the definition contained in Russell. However, under the circumstances, we conclude the court was not required to do so. Given that the legal and every day definitions for “likely, ” as used in section 245, are the same, the court did not abuse its discretion in its measured response to the jury.
Defendant argues that “[a]lthough ‘probable’ or ‘more probable than not’ is the most common definition of ‘likely, ’ there are many other modern, common legal and non-legal definitions of the term[.]” This argument is unpersuasive. As defendant indicates, some cases, most notably People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, conclude that our Legislature intended “likely” to have another meaning in certain specific legal contexts. As our Supreme Court noted in Ghilotti, “modern legal references in particular suggest that ‘likely’ may be used flexibly to cover a range of expectability from possible to probable.” (Id. at p. 916, italics added.) However, the Ghilotti court did not conclude that the ordinary, everyday meaning of “ ‘likely’ ” was substantively different from “ ‘probable’ ” or “ ‘more probable than not, ’ ” as defined in Russell, supra, 129 Cal.App.4th at page 787. To the contrary, the Ghilotti court found “the word is often defined” as “ ‘having a better chance of occurring than not.’ ” (Ghilotti, at p. 916.) The court limited its discussion to the different shades of meaning the Legislature has been found to have intended for the term “ ‘likely’ ” (or the similar term “ ‘likelihood’ ”) in specific statutes that are unrelated to section 245. The court noted that the different holdings depended on the legal context involved and qualifiers joined with the term (as in “ ‘ “reasonably likely, ” ’ ” for example). (Ghilotti, at pp. 917-919, italics added.) These statutes involved felony child endangerment, a prisoner’s possession of a deadly weapon, change of venue, and, at issue in Ghilotti, the Sexually Violent Predator Act (SVPA). (Ghilotti, at pp. 917-920.) The court concluded that in light of the specific context of the SVPA, it could not embrace respondent’s argument that the mere use of the word “likely” meant that “the Legislature intended to require the evaluators to predict a greater than 50 percent chance the person would reoffend. We must therefore look to the context of the SVPA to determine what the Legislature meant by this term.” (Ghilotti, at p. 919.) Therefore, Ghilotti does not provide support for defendant’s argument that there are modern, non-legal definitions of “likely” that are different than the meaning discussed in Russell, supra, 129 Cal.App.4th at page 787, and Savedra, supra, 15 Cal.App.4th at page 744.
Defendant further argues that the court erred when it told the jury that “law does not permit me to give you a more detailed definition” of what degree of likelihood might exist for you to “conclude that something is likely to produce great bodily injury.” According to defendant, this improperly left it to the jury to determine what degree of likelihood was sufficient, and suggested that differing degrees existed that could suffice. We disagree. Pursuant to section 245 and CALCRIM No. 875, the jury was required to determine whether the force defendant used was “likely” to produce great bodily injury, period. The court would have erred if it defined the “degree” of likelihood further because likelihood alone is called for by the statute. The court’s response was not misleading, particularly when considered with the court’s further instruction that the jury was to give the ordinary, everyday meaning to terms not otherwise defined. (People v. Andrade, supra, 85 Cal.App.4th at p. 585 [“we consider... the instructions as a whole”].)
To summarize, defendant does not demonstrate that the trial court erred in its response to the jury. The meaning of the word “likely” as used in section 245 is the same as its ordinary, everyday meaning, which is “ ‘ “probable” ’ ” or “ ‘ “more probable than not.” ’ ” (Russell, supra, 129 Cal.App.4th at p. 787, quoting Savedra, supra, 15 Cal.App.4th at p. 744; see also Ghilotti, supra, 27 Cal.4th at p. 916.) Ghilotti and the other cases cited by defendant do not indicate that “likely, ” in the ordinary, everyday sense, means something other than “probable” or “more probable than not, ” and the legal contexts discussed in these cases have no bearing here. Since there is no question that the original instructions were full and complete, the trial court had “the discretion... to determine what additional explanations [were] sufficient to satisfy the jury’s request for information” (People v. Beardlsee (1991) 53 Cal.3d 68, 97), and the court’s response was within its section 1138 discretion under the circumstances. In light of the subject term’s ordinary, everyday meaning, there was not a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights. (See People v. Andrade, supra, 85 Cal.App.4th at p. 585.)
Given our determination about the meaning of “likely” as used in section 245, we have no need to address defendant’s “rule of lenity” argument.
2. Any Error Would Have Been Harmless
Assuming arguendo that the trial court erred in its response to the jury, we conclude any error was undoubtedly harmless, whether evaluated under the federal or state standard for prejudicial error. (Chapman v. California (1967) 386 U.S. 18, 24 [federal]; People v. Watson (1956) 46 Cal.2d 818, 836 [state].) The surveillance video evidence was so strong that no reasonable juror could have concluded other than that defendant’s assault involved the use of force that was likely (as in probable, or more probable than not) to produce great bodily injury.
The People argue that the evidence that Joshua was left unconscious was great bodily injury, and sufficient to find harmless error. Defendant argues that there was not sufficient evidence that he employed force likely to produce great bodily injury, particularly in light of questions about Joshua’s credibility and whether he lost consciousness raised by inconsistencies between his testimony and previous statements, and by other evidence. We do not need to determine the merits of these arguments or the strength of the evidence that Joshua was rendered unconscious. As indicated on the surveillance video, defendant’s choking of Joshua for an extended period of time caused Joshua obvious and great physical distress, and left him, at the very least, badly stunned to a point that was very close, if not equivalent, to unconsciousness. We conclude, based in part on our independent research, that, given this evidence, no reasonable juror could conclude other than that defendant employed force that was likely to produce great bodily injury. (See People v. Berry (1976) 18 Cal.3d 509, 519 [choking someone to the point that the person becomes unconscious “necessarily indicates force likely to produce great bodily injury”]; People v. Covino (1980) 100 Cal.App.3d 660, 667-668 [rational trier of fact could reasonably infer from the description of the victim’s symptoms that the choking of her was likely to produce a serious injury].) Therefore, any error by the court in instructing the jury about the term “likely” was harmless beyond a reasonable doubt.
II. Ineffective Assistance of Counsel for Failure to Object to Prosecutorial Misconduct
Defendant also argues that the prosecutor committed misconduct by appealing to the jury’s sympathy, compassion, emotion, and prejudice. Given that his trial counsel did not object to this purported misconduct, defendant argues that judgment should be reversed and the matter remanded for a new trial because he received ineffective assistance of counsel. This is incorrect.
A. The Proceedings Below
Defendant argues that the prosecutor engaged in misconduct that violated defendant’s federal due process rights when she urged the jurors in rebuttal argument to imagine they were in Joshua’s shoes in response to defense attacks on his credibility as a witness. First, the prosecutor argued that, although the 911 printout from the night of the incident included a report that a backpack had been stolen, Joshua did not provide this misinformation. She told the jury: “[T]he fact that a document printed by an unknown officer or 911 operator said ‘backpack, ’ is not evidence that Josh told anyone that his backpack was stolen, because we know from people who talked to him directly that he never told them his backpack was stolen. Not one person said that.
“And can you imagine being 16 years old and going through what Josh went through on that train? Can you imagine going to hang out with the cool guys, because you think they’re cool and they’ve invited you over, and the next thing you know, all of a sudden you’re being attacked? They are surrounding you. They’re on you. Are you looking at their face at that time? Are you trying to commit to memory what’s happening to you? Are you looking at where you are on the bus? You saw the videotape. Josh was fighting for his life. I’m not overdramatizing it. He has his arms up, trying to get the defendant’s arm around his neck, and they are laughing. They’re laughing at him.
“Can you imagine what that must have been like for him? And then you go back and you tell the police and you report it and follow-up, and you have your credibility attacked because you’re not precise on some issues that have nothing to do with the fact that you were robbed and assaulted.”
Defendant also argues the prosecutor engaged in misconduct when she argued to the jury in rebuttal about whether or not the assault involved force likely to produce great bodily injury. She told the jury: “Great bodily injury. Let your eyes decide. You lose your breath. You can’t breathe. You can’t breathe. You can’t see, and you go out. If that’s not significant injury, I don’t know what is.” Defense counsel did not object to any of these arguments.
B. Analysis
The Sixth Amendment of the federal Constitution guarantees the right to effective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 685-686.) “To establish constitutionally inadequate representation, the defendant must show that (1) counsel’s representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms; and (2) counsel’s representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel’s failings the result would have been more favorable.” (People v. Haskett (1990) 52 Cal.3d 210, 248.) “A ‘reasonable probability’ is not a showing that ‘counsel’s conduct more likely than not altered the outcome in the case, ’ but simply ‘a probability sufficient to undermine confidence in the outcome.’ ” (In re Cordero (1988) 46 Cal.3d 161, 180.)
Defendant argues that his counsel’s failure to object to the prosecutor’s statements to the jury was ineffective assistance of counsel, because the prosecutor’s inappropriate appeals to the jury violated defendant’s rights to due process and a fair trial. law. Among other things, defendant points out that “[i]t is ‘settled that an appeal to the jury to view the crime through the eyes of the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt.” (People v. Arias (1996) 13 Cal.4th 92, 160.) Defendant also argues that urging the jury “to consider the suffering of the victim” is simply improper. (People v. Stansbury (1993) 4 Cal.4th 1017, 1057, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318.)
The People argue we should reject defendant’s claim because the prosecutor’s comments, “[w]hen viewed in context... were not intended to, and would not be so viewed as, appeals for sympathy or urging the jury to consider Joshua’s suffering, ” and that defendant cannot show prejudice in any event.
We believe, based on our review of the prosecutor’s statements and the law cited by the parties that defendant has made a colorable claim of prosecutorial misconduct. That said, we do not determine whether any misconduct has occurred here because we agree with the People that, assuming arguendo that defendant’s trial counsel should have objected to the prosecutor’s statements, defendant nonetheless cannot show the prejudice necessary to establish his ineffective assistance of counsel claim. As we have already discussed, the surveillance video evidence overwhelmingly supports defendant’s conviction. Whether defendant’s trial counsel had objected to the prosecutor’s cited arguments is of little, if any, significance in light of it. Therefore, we reject defendant’s prosecutorial misconduct/ineffective assistance of counsel claim.
III. Section 4019 Issues
On July 16, 2010, the record before this court was augmented with the filing of an abstract of judgment, filed in superior court on July 13, 2010, indicating that the superior court awarded defendant 824 days credit for time spent in custody, and 412 local conduct credits pursuant to section 4019. By letter dated August 30, 2010, filed with this court and served to the People, defendant’s appellate counsel wrote to inform us of “the disposition of the Penal Code section 4019 issue raised on the appeal and alert the Court of Appeal to the mootness of the issue, ” as a result of the superior court’s amending of defendant’s section 4019 credits. The People have not objected. Accordingly, we do not further address the issues raised by the parties in their supplemental briefing.
DISPOSITION
The judgment, as amended by the trial court during the pendency of this appeal regarding defendant’s section 4019 credits, is affirmed.
We concur:Kline, P.J., Haerle, J.