Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF130236, Craig Riemer, Judge.
Susanne C. Washington, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant, Obbie McCray, guilty of first degree burglary. (Pen. Code, §§ 459, 460.) The jury found true an allegation that a person who was not defendant’s accomplice was present in the residence during the burglary. (§ 667.5, subd. (c)(21).) The trial court sentenced defendant to state prison for a term of four years. Defendant contends that his conviction and associated enhancement must be reversed due to a variety of alleged misconduct on the part of the prosecutor. Alternatively, if defendant waived any of his arguments concerning prosecutorial misconduct, by failing to object at the trial court, then defendant contends he was denied effective assistance of counsel. We affirm the judgment.
All further statutory references will be to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
In order to fully understand defendant’s misconduct claims, it is important to be aware of both the prosecution and defense cases. Accordingly, we present both sides’ versions of the events.
A. Prosecution’s Case
We begin by presenting the People’s case. In March 2006, the victim lived in an apartment in Riverside, with three housemates. On March 28, 2006, when the victim arrived home from work, two men were walking past her apartment. The two men were tall, slender, and African-American. The victim exchanged “hellos” with the men, and spoke to them for approximately three minutes. One of the men asked the victim for a drink of water, and the victim invited them inside for water. The two men entered the victim’s apartment. The victim gave one of the men a bottle of water. The two men stayed and spoke to the victim for approximately five or ten minutes, and then the men left.
Around 3:00 a.m., on March 29, 2006, the victim awoke and saw a shadowy figure inside her apartment. The victim was by herself in her apartment, because her housemates had left for spring break. The victim ignored the shadow and fell asleep. After some time passed, the victim awoke again. The victim saw two shadowy figures standing near her bed, and heard two men “mumbling.” The victim continued to lie in her bed and pretended to be asleep. At one point, one of the men flicked a lighter; the victim saw that the men were tall and slim, and she believed their voices sounded African-American. The two men left the victim’s room, but they returned several times. At one point, the victim heard one of the men crawling on the floor near her bed.
The victim lay awake in bed until the sun rose. When the victim exited her bedroom, she saw that a housemate’s bedroom door was open, and she saw a broken window. The victim called the police. The victim reported several items stolen, including her camera, a housemate’s computer, and money. Several of the victim’s belongings had been moved around the apartment. A small brown chest/jewelry box, which was usually under the victim’s bed, was in her housemate’s bedroom. The victim’s plastic three-drawer unit, which had been in the victim’s bedroom, was in her housemate’s bathroom.
Defendant’s fingerprints were found on the victim’s plastic drawer unit and the jewelry box. Defendant’s fingerprint was also found on the exterior of the southwest window of the apartment—the northwest window was the window that was broken. Riverside City Police Detective Kevin Townsend showed the victim a photograph of defendant, and the victim identified defendant as a person that “may have been at the residence.”
B. Defense’s Case
We now present the defense’s case. In March 2006, defendant was staying at John Stallworth’s apartment, which was in the same apartment complex where the victim resided. Justin Hicks, Yuseff Smith, and a man named June were also staying at Stallworth’s apartment. The victim drove defendant, Hicks, and Smith to a store and restaurant. When they returned to the apartment complex, the victim, defendant, Hicks, Smith, and June went to the victim’s apartment. The victim left the living room area to get water, and defendant saw Smith take the victim’s wallet and leave the apartment. The victim noticed that her wallet was missing, and defendant told her that he would retrieve it for her.
Defendant, June, and the victim then went to the victim’s bank, so that she would have cash to pay her rent. Defendant recalled that the three then went to the food court at the Tyler Mall, and the victim bought defendant and June food. When the three returned to the apartment complex, defendant went back to Stallworth’s apartment and June went to visit the apartment of two women, Lauren and April. Defendant confronted Smith about stealing the victim’s wallet, but Smith said that he had already returned the wallet to the victim’s apartment.
During the night, Hicks and June came into Stallworth’s apartment, approximately three times, with various items, including the plastic drawer unit and a computer. Defendant said to Hicks and June, “‘Man, get this shit up out of here.’” Defendant stated that he touched some of the victim’s items, such as the plastic drawer unit, when he was telling Hicks and June to take the items away. Defendant knew the items came from the victim’s apartment because he overheard Hicks and June discussing the burglary “throughout the day.” Defendant testified that his conversation with Hicks and June made the woman who was visiting defendant feel uncomfortable, so defendant walked the woman to her car. After walking to the woman’s car, defendant noticed that the victim’s southwest apartment window was open, so he closed it, which explains why defendant’s fingerprints were on the window.
When defendant returned to Stallworth’s apartment, he again said to Hicks and June, “Get this up out of here.” Hicks and June left the apartment with all of the stolen items. Defendant did not know how the plastic drawer unit was returned to the victim’s apartment.
DISCUSSION
A. Prosecutorial Misconduct
Defendant contends that the prosecutor committed prejudicial misconduct by (1) relying on inadmissible hearsay; (2) referring to facts that were not in evidence; (3) shifting the burden of proof; and (4) arguing that the jury should view the burglary from the victim’s perspective. We disagree.
“The standards governing review of misconduct claims are settled. ‘A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “‘unfairness as to make the resulting conviction a denial of due process.’” [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.’ [Citation.]” (People v. Friend (2009) 47 Cal.4th 1, 29 (Friend).) “A finding of misconduct does not require a determination that the prosecutor acted in bad faith or with wrongful intent. [Citation.]” (People v. Kennedy (2005) 36 Cal.4th 595, 618.) “When a claim of misconduct is based on the prosecutor’s comments 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.”’ [Citation.]” (Friend, at p. 29.) “To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm. [Citations.]” (Kennedy,at pp. 618; see also People v. Dykes (2009) 46 Cal.4th 731, 760.)
The material facts concerning defendant’s various prosecutorial misconduct arguments are undisputed. Accordingly, we apply the de novo standard of review. (People v. Camarillo (2000) 84 Cal.App.4th 1386, 1389.)
1. Forfeiture
The People contend that defendant forfeited his arguments concerning prosecutorial misconduct by failing to raise objections in the trial court, when objections and admonitions would have cured the alleged harms. Defendant concedes that he did not object to each instance of alleged prosecutorial misconduct; however, defendant asserts that he did not forfeit his claims of prosecutorial conduct because (1) he objected to some of the alleged instances of misconduct; (2) he could not request admonitions because the trial court overruled his objections; (3) in one instance, the trial court delivered an admonition sua sponte; and (4) an objection and/or admonition would not have cured the harm caused by the misconduct.
For the sake of judicial efficiency, we will address the merits of defendant’s prosecutorial misconduct contentions. (People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) By addressing the merits, we will spare the reader lengthy analyses of whether (1) defendant forfeited his contentions, and (2) received ineffective assistance of counsel. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179.) We address defendant’s claims of prosecutorial misconduct in sequence.
2. Hearsay
a) Facts
When the prosecutor was cross-examining defendant, the following exchange took place:
“[Prosecutor:] And it’s also your testimony that they were planning the burglary later, not you?
“[Defendant:] Yes, they were talking about it. I was listening. I never did once comment on it or anything, nor did I say, ‘Don’t do it.’ [¶] I don’t even know them that good to just be like, ‘Hey you all, don’t do it.’ [¶] That’s exactly why I parted and went my separate way.
“[Prosecutor:] Would you be shocked to learn that Mr. Smith said it was you that was planning that burglary?
“[Defendant:] Yeah, I knew that already. I read the police report. I knew that. I’m not shocked. I knew that.”
During the prosecution’s closing argument, the following comments were made:
“[Prosecutor:] If you remember, Mr. Smith said it was [defendant. Defendant]’s pointing to Mr. Smith. We have got a bunch of people pointing.
“[Defense attorney:] Objection. Facts not in evidence regarding Mr. Smith.
“The Court: Sustained.
“[Prosecutor:] What we did hear is that he knew that the other man, Mr. Smith, pointed the finger at him.
“[Defense attorney]: That also assumes facts not in evidence about Mr. Smith.
“The Court: Ladies and gentlemen, as I mentioned, what the attorneys are going to tell you is what they remember the evidence being. What counts is what you remember the evidence being. If, as a result of the attorney’s characterization of the evidence, you’re then not sure what the evidence was, you then can consult each other’s memory. If there’s some disagreement, you can consult the court reporter to read back to you the relevant parts of the testimony. [¶] Go ahead, [prosecutor].”
b) Analysis
Defendant contends that the prosecutor committed prejudicial misconduct by introducing inadmissible hearsay evidence.
“‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)
During the cross-examination of defendant, the prosecutor referenced Smith’s out-of-court statements to attack defendant’s credibility. Specifically, the prosecutor mentioned Smith’s statement to the police to buttress his argument that defendant’s testimony should be given less weight because defendant knew the evidence against him and created a false story to counter the evidence. In other words, the prosecutor did not refer to Smith’s statements in order to prove the truth of the matter stated, rather, the statements were used to support the argument that defendant was lying. The prosecutor’s closing argument reference to Smith’s statement was made for the same reason—to illustrate that defendant’s testimony was false, because defendant was aware of the evidence against him, and he prepared a story to counter that evidence. Consequently, the prosecutor did not commit misconduct by introducing inadmissible hearsay, because the out-of-court statement was not offered for the truth of the matter asserted.
Next, we address the pertinent question: whether there is a reasonable likelihood that “‘“the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]” (Friend, supra, 47 Cal.4th at p. 29.) We conclude that it is not reasonably likely that the jury construed or applied the complained-of remarks in an objectionable manner, because the trial court thoroughly admonished the jury about the prosecutor’s remarks, and we presume that the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
Defendant argues that the prosecutor’s references to hearsay statements violated defendant’s constitutional right to confront witnesses against him. Defendant relies on People v. Blackington (1985) 167 Cal.App.3d 1216 (Blackington) to support his position. In Blackington, the defendant asserted that the prosecutor committed misconduct by “reading from a prior out-of-court statement made by [a codefendant] while the prosecutor was cross-examining [the] defendant.” (Id. at p. 1219.) The prosecutor used the codefendant’s out-of-court statements when asking the defendant whether he had made certain remarks to the codefendant, which tended to discredit the defendant’s self-defense theory. (Id. at p. 1220.)
The reviewing court found that the prosecutor’s questions “went to the critical issue in the case,” i.e. the self-defense theory; that the prosecutor reminded the jury of the statements during closing arguments; and that the defendant was denied his right to confront his codefendant, because his codefendant asserted his privilege not to testify. (Blackington, supra, 167 Cal.App.3d at p. 1223.) On appeal, the People argued that the jury likely did not misapply the disputed statements, because the jury returned a second degree murder conviction, rather than a conviction that reflected the defendant premeditated the murder. (Ibid.) The reviewing court disagreed because “the prosecutor’s insinuations also suggested an intentional and therefore malicious killing rather than voluntary manslaughter.” (Ibid.) Therefore, the reviewing court reversed the defendant’s conviction. (Id. at p. 1224.)
Defendant asserts that the instant case is similar to Blackington because the evidence against defendant was weak. Defendant argues that Smith’s out-of-court statement was highly prejudicial, especially because Smith was a coparticipant in the burglary. Due to the extreme prejudice, defendant argues that the trial court’s admonishment could not have cured the damage caused by the prosecutor’s misconduct.
We are not persuaded by defendant’s argument. The record does not reflect that the jury likely applied or construed the out-of-court statements in an objectionable way. In Blackington, the reviewing court had reason to believe that the jury misapplied or misconstrued the codefendant’s statements. Without delving into a lengthy substantial evidence analysis, we find from the record that sufficient evidence was presented to the jury to support defendant’s conviction, such as defendant’s fingerprints, as well as the victim’s and detective’s testimony. Consequently, we disagree with the theory that the prosecution’s case was weak, and therefore the jury must have misconstrued or misapplied Mr. Smith’s out-of-court statement. In sum, the instant case is distinguishable from Blackington, and therefore we are not persuaded by defendant’s argument.
3. Facts Not In Evidence
a) Facts
During the cross-examination of Detective Townsend, the following exchange occurred:
“[Defense attorney:] Now, you mentioned that other than Mr. Hicks and [defendant], you had the opportunity to speak to other people you suspected in this crime; correct?
“[Detective Townsend:] Yes.
“[Defense attorney:] And how many other suspects did you speak to?
“[Prosecutor:] Objection. Relevance and vague.
“The Court: Sustained on the former ground.”
“[Defense attorney:] Was there another suspect during the course of your investigation?
“[Detective Townsend:] Correct.”
When defendant’s trial attorney was delivering his closing argument, he made the following remarks: “Now, we also know that [Detective Townsend] interviewed a number of people involved in the case. He interviewed a person that identified himself as June, or Glenn Futch. He interviewed a person name[d] John Stallworth. An[d] individual[s] named Lauran Brown and April Jordan. He arrested Mr. Hicks. These are all individuals he had contact with. These are individuals that were involved in the case. That you heard [defendant] talk about who were also involved at the scene.”
As defendant’s trial attorney’s closing argument progressed, he said, “As I mentioned before, he mentioned a couple names of people that are involved in the case. He mentioned Yuseff Smith, an individual by the name of June, John Stallworth, a person named April, Lauran Brown. And these are individuals that... Detective Townsend all interviewed during the course of his investigation. [¶] So these aren’t just some phantom people, just random names. These are actually people that were in and around this area that were involved in some way, some form in these events.”
It is unclear from the record to whom “he” is meant to refer, e.g., Detective Townsend, the prosecutor, or defendant.
During the prosecutor’s rebuttal closing argument, the following statements were made:
“[Prosecutor:] I also want to take a quick sidetrack on what about these other people, Lauran Brown, and all of this other stuff. First of all, these other people are not suspects. If there’s a burglary next to your house
“[Defense attorney]: That assumes facts not in evidence.
“The Court: Sustained. Rephrase.
“[Prosecutor:] He said that a lot of these people are suspects. What do they know? [¶] We don’t know anything about some of these people, and they may not be relevant.” (Italics added.)
b) Analysis
Defendant contends that the prosecutor’s statement—“these other people are not suspects”—amounted to (1) prosecutorial misconduct, and (2) a violation of defendant’s constitutional right to confront witnesses against him, because the prosecutor implied that defendant was the only suspect in the case, which contradicted Detective Townsend’s testimony.
The pertinent rule is: “[I]t is misconduct for [a] prosecutor to state facts not in evidence or to imply the existence of evidence known to the prosecutor but not to the jury.” (People v. Smith (2003) 30 Cal.4th 581, 617.) Based upon defendant’s claim of misconduct, we determine ‘“whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.”’ [Citation.]” (Friend, supra, 47 Cal.4th at p. 29.)
“As a general matter, we may presume that the jury followed the instructions it was given [citation]....” (People v. Prince, supra,40 Cal.4th at p. 1295.) The trial court instructed the jury that statements by attorneys during closing arguments are not evidence. The trial court also instructed the jury to disregard questions by the attorneys, if the court sustains an objection to the question. Additionally, the trial court admonished the jury, “what the attorneys are going to tell you is what they remember the evidence being. What counts is what you remember the evidence being.”
We conclude that it is unlikely that the jury construed or applied the prosecutor’s remark in an objectionable fashion because (1) the jury was instructed that the prosecutor’s statements were not evidence; (2) the court sustained defendant’s objection to the statement; and (3) the court admonished the jury to rely on their own memories of the evidence.
Next, defendant asserts that the prosecutor improperly argued that a window was closed, when the evidence reflected that the window was open. Defendant concludes, with little analysis, that the prosecutor’s argument concerning the window was misconduct. Defendant has not explained whether there was a reasonable likelihood that the jury construed or applied the complained-of remarks in an objectionable fashion. Accordingly, we find defendant’s argument unpersuasive, because it is unlikely that the jury misapplied the prosecutor’s remarks given the trial court’s explicit instruction and admonishment.
Defendant cites to People v. Herring (1993) 20 Cal.App.4th 1066 (Herring) to support his position that the prosecutor violated his right to confront witnesses against him when the prosecutor told the jury that the people mentioned during the trial were not suspects, when the prosecutor suggested that none of defendant’s acquaintances were suspects, and when the prosecutor said that the window was closed at the time of the burglary.
In Herring, the prosecutor argued that he “represented the victims,” while it was the defense counsel’s job to tell “rapists, murderers, robbers, and child molesters what to say and [that defense counsel] ‘does not want [the jury] to hear the truth.’” The reviewing court found that the prosecutor’s argument (1) implied that the prosecutor knew facts not in evidence; (2) violated defendant’s right to confront witnesses against him; and (3) denied defendant effective assistance of counsel. (Herring, supra, 20 Cal.App.4th at pp. 1076-1077.) The appellate court noted the prosecutor’s remarks struck at the heart of the case, which turned on the issue of credibility. (Id. at p. 1077.) The appellate court concluded that the jury’s inability to reach a verdict on the most serious offense and the jury’s questions to the court illustrated the importance of the credibility issue. Consequently, the court reversed the defendant’s convictions, because it concluded that admonishments could not cure the harm caused by the prosecutor’s statements. (Ibid.)
We find Herring distinguishable from the instant case for the same reasons that we found Blackington, supra, distinguishable. In Herring, the jury hung as to the top count. In Blackington, the jury acquitted the defendant of the top count, i.e., first degree murder. In the instant case, the jury had the option of convicting defendant of aiding and abetting, rather than burglary; however, the jury returned a verdict for first degree burglary. As noted ante, we decline to engage in a lengthy substantial evidence analysis; however, we are convinced from our review of the record that substantial evidence supported the jury’s finding. Consequently, we disagree with defendant’s theory that the prosecution’s case was weak, and therefore, the jury likely misapplied or misconstrued the prosecutor’s statements.
4. Shifting the Burden of Proof
a) Facts
During the prosecution’s rebuttal closing argument, the prosecutor made the following three statements:
First: “[J]ust because there’s some unanswered questions does not mean that that’s reasonable doubt. [¶]... [¶] Yeah, maybe it would be interesting to maybe see the fire extinguisher [that was allegedly used to break the window], but just because we don’t have that, does that mean he’s innocent beyond a reasonable doubt? [¶] No.”
Second: “I have a job, he has a job. He needs to create reasonable doubt in your minds, so he lists some questions.”
Third: “If you are going to acquit him, if you are going to believe his story, here’s what you’re going to have to believe. [¶] First, you’re going to have to believe he just happened to be staying in the same apartment near [the victim]. [¶] You’ve got to believe that [the victim] is lying, or not telling the truth, or blocking out what happened that day. [¶]... [¶] Next, you have to believe that he only wanted to help [the victim] out when one of his friends stole from her and two other friends plotted to rob or burglarize her. [¶] You’ve got to believe that he was in his apartment with the unknown girl in the bed.... [¶]... [¶] But to believe him and acquit him, you’ve got to believe more. [¶] You’ve got to believe that after he said, ‘Get this stuff out of here,’ they took it. They snuck back down the stairs, they snuck into the apartment they just burglarized, and they put it down.” (Italics added.)
Immediately following the end of the prosecution’s closing argument, the court admonished the jury as follows: “Ladies and gentlemen, [the prosecutor] misspoke, ‘Does that mean the defendant is innocent beyond a reasonable doubt?’ [¶] The defendant doesn’t have to prove that he’s innocent beyond a reasonable doubt. It’s the prosecution [that] has to prove he’s guilty beyond a reasonable doubt. I don’t think any of you were confused by that, but just in case you were, just to clarify.”
b) Analysis
Defendant contends that during closing arguments, the prosecutor committed misconduct by shifting the burden of proof to the defense. Defendant relies on the three statements listed ante, as evidence of the prosecution shifting the burden of proof to defendant, i.e., that defendant is guilty until proven innocent beyond a reasonable doubt.
As noted ante, “[a]s a general matter, we may presume that the jury followed the instructions it was given [citation]....” (People v. Prince, supra, 40 Cal.4th at p. 1295.) The trial court instructed the jury: “A defendant in a criminal case is presumed to be innocent. This presumption requires the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all of the evidence that was received throughout the entire trial. Unless, the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty.” (CALCRIM No. 220.)
Based upon the foregoing reasonable doubt instruction, the trial court’s admonishment that the prosecutor misspoke, and the trial court’s reminder of the reasonable doubt standard, we conclude it is not likely that the jury construed or applied the complained-of statements in an objectionable way.
Defendant contends that the prosecutor violated his right to due process by repeatedly misstating the burden of proof. Defendant concedes that the trial court corrected the prosecutor’s first misstatement; however, defendant contends that the prosecutor’s two other misstatements were not corrected, and therefore, violated defendant’s rights. Defendant relies on People v. Garcia (1975) 54 Cal.App.3d 61, 63 (Garcia), which is a second degree murder case, to support his position.
In Garcia, the trial court properly instructed the jury on the reasonable doubt burden of proof; however, the trial court then amplified the instruction with language that was “strikingly comparable to the civil case rule of ‘“preponderance of [the] evidence.”’” (Garcia, supra, 54 Cal.App.3d at pp. 68-69.) The reviewing court concluded that there was “some evidence that [the defendant] had acted with a lack of ‘malice’ or under ‘heat of passion’ without sufficient provocation, or under ‘diminished capacity’ caused by voluntary intoxication.” There was also evidence that the defendant might have acted in self-defense or that the defendant was not conscious of the homicidal act. (Id. at p. 70.) The reviewing court presumed that the jury followed the erroneous reasonable doubt amplification language, and therefore, the appellate court could not conclude that the jury applied the correct standard of proof. Consequently, the reviewing court determined that the conviction had to be reversed. (Id. at pp. 70-71.)
The instant case is distinguishable from Garcia because, in the instant case, it was the prosecutor, not the trial court, who misstated the burden of proof. In Garcia, the jury did not have an admonishment to disregard the incorrect instruction; however, in the instant case, the trial court admonished the jury that the prosecutor misspoke and reminded the jurors of the correct standard of proof. Accordingly, we are not persuaded to follow Garcia, because the jury in the instant case was given the correct instructions by the trial court and admonished not to follow the prosecutor’s misstatement.
5. Victim’s Perspective
a) Facts
During the prosecutor’s closing statement, he made the following comments:
“There is no question that [the victim] was the victim of a terrible burglary. She was victimized two and a half years ago, yet you can still see and hear the pain that she experiences even today. You can see and hear the violation that the defendant and his friend inflicted upon her. [¶] You can look at her face. You can see the pain. You could see the tears. You could hear her voice quiver. There is no question that what happened to her was terrible.”
“[A home is a] place where a person or family creates memories. That’s what a home is. [¶] That man—[defendant]—and his friend made [the victim’s] home a hell and a torture. That’s what he did. That’s why she’s so upset. Think about it from her perspective.” (Italics added.)
“[The victim is] alone. She’s in her bed. She’s sleeping, and it’s dark. [¶] What does she see? She sees a couple of shadows. But first she’s a little bit afraid, but she’s sleepy so she doesn’t really know.... [¶] And then, at some point in time..., her perceptions take hold, and she realizes that there are two people in her dark room. Two people she didn’t invite in there. Two people she didn’t know in there. Two people she didn’t want in there. Two people that she was afraid of. [¶] These two people not only entered in her room, they leave. She thinks, ‘Well, maybe I’m okay.’ [¶] They come back. [¶] They leave. [¶] They come back. [¶] She’s terrified. They’re crawling around her bed. [¶] I want you to imagine this for a second. A bed, maybe here to here. This... girl was laying in that bed, and the defendant and his accomplice are crawling around that bed, pulling things from under it. They’re pulling purses and things from her armoire. They’re looking for something as she’s in there.”
The prosecutor ended his initial closing argument by saying, “I’m asking you to hold him guilty. To hold him accountable to what he’s unwilling to do. [The victim] deserves justice. People that did that act to her need to be brought accountable.”
After the prosecutor finished his initial closing argument, the trial court said to the jury, “Ladies and gentlemen, one correction to what [the prosecutor] said. At the outset of his argument, one of the things he said [was] that he invited you to view the evidence from the perspective of the victim.... [¶] You’re to view the evidence in an objective fashion, without allowing any sympathy that you may have either for [the victim] or for the defendant to interfere with your objective evaluation of the strength of the evidence. And in a few sentences later, that’s exactly what [the prosecutor] said. [¶] But his invitation to look at the evidence from the viewpoint of the victim was not an invitation to allow any sympathy you may feel for the victim to get in the way of an objective evaluation.”
b) Analysis
Defendant contends the prosecutor committed misconduct by urging the jury to view the evidence from the victim’s perspective.
As we have noted ante, we may presume that the jury followed the instructions that it was given. In this case, the court admonished the jury not to view the evidence from the victim’s perspective, and instructed the jury to look at the evidence from an objective viewpoint. Further, the trial court instructed the jury to “not let bias, sympathy, prejudice, or public opinion influence [its] decision.” (Italics added.) (CALCRIM No. 200.) We have no reason to conclude that the jury disobeyed the trial court’s instructions. Accordingly, it is unlikely that the jury construed or applied the complained-of statements in an objectionable way.
Defendant asserts that the prosecutor’s comments urging the jury to view the evidence from the victim’s perspective were so pervasive that they could not be cured by the trial court’s admonishment. Defendant’s argument is not convincing because the trial court instructed the jury to be objective; admonished the jury that the prosecutor misspoke; and reminded the jury to look at the evidence from an objective viewpoint. Accordingly, the trial court’s instructions on being objective were as pervasive as the prosecutor’s comments to view the evidence through the victim’s eyes. Therefore, we are not convinced that it is likely that the jury misconstrued or misapplied the prosecutor’s statements.
6. Cumulative Error
Defendant contends that the “‘onslaught’” of prosecutorial misconduct made it “‘increasingly difficult for the jury to remain impartial.’” In other words, defendant asserts that the cumulative impact of the prosecutorial misconduct caused him to be denied a fair trial. We disagree.
We have concluded ante, that the record does not support a finding that the jury applied or construed the prosecutor’s statements in an objectionable manner. Accordingly, we reject defendant’s claim that the cumulative impact of the alleged misconduct resulted in prejudice and deprived him of a fair trial and due process. (See People v. Parson (2008) 44 Cal.4th 332, 368 [reaching a similar conclusion].)
7. Conclusion
We have considered defendant’s claims of prosecutorial misconduct both singularly and cumulatively and conclude that the prosecutor’s acts did not “‘“‘“so infect[] the trial with unfairness as to make the resulting conviction a denial of due process”’”’ in violation of the federal Constitution. [Citations.]” (People v. Wallace (2008) 44 Cal.4th 1032, 1071.) We reach this conclusion primarily due to the curative instructions and admonishments delivered by the trial court.
Further, in regard to state law, on this record, we cannot conclude that the prosecutor employed methods that qualify as deceptive or reprehensible. (See People v. Wallace, supra, 44 Cal.4th at pp. 1070-1071 [state law standard].) It is clear from the record that the prosecutor misspoke; however, the trial court skillfully cured the prosecutor’s misstatements. The prosecutor did not quarrel with the trial court, or try to assert that the trial court’s instructions were incorrect. In other words, it appears from the record that the prosecutor’s performance was not appropriate; however, we do not find that it was deceptive or reprehensible.
Additionally, given our conclusions that it is unlikely that the jury applied or construed the complained-of statements in an objectionable manner, we conclude that it is not reasonably probable that a result more favorable to defendant would have been reached absent the alleged misconduct. (See People v. Wallace, supra, 44 Cal.4th at p. 1071 [harmless error standard].)
B. Ineffective Assistance of Counsel
Defendant contends that if this court concludes he forfeited his claims of prosecutorial misconduct by failing to object at the trial court, then he was denied effective assistance of counsel. We have chosen to address the merits of defendant’s various prosecutorial misconduct contentions. Accordingly, we do not analyze his argument related to ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, Acting P. J., GAUT, J.