Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F05990
HULL, J.Defendant was convicted by a jury of first degree murder of his wife and was found to have used a deadly weapon in connection with the offense. He was sentenced to state prison for an indeterminate term of 25 years to life plus one year. On appeal, defendant asserts jury misconduct, evidentiary and instructional errors, and prosecutorial misconduct. We find no error and affirm the judgment.
Facts and Proceedings
Defendant and A.R. were married on July 7, 2005. A.R. was murdered the next day.
At the time of these events, defendant and A.R. were living with defendant’s mother, M.S., and two of his brothers. On the day of the wedding, defendant’s brother, D.O., came home and noticed a cloud of smoke in the home. Defendant and A.R. were the only ones present. A.R. told D.O. they had been using drugs and that she was afraid for defendant. When M.S. came home from work, she spoke with A.R., who had tears in her eyes and said she was scared. Defendant was sitting on a couch rocking back and forth and looking pale.
Later that evening, A.R. called her parent’s home and left a message that defendant was not feeling well and she wanted her mother to call back with advice on what to give him. Around 10:00 p.m., A.R.’s mother returned the call. A.R. said everything was fine but she was not in a position to talk and would call back the next day. She never did.
The next morning, July 8, defendant’s mother woke up and found defendant and A.R. sitting on the living room couch watching a movie. She left for work around 7:00 a.m. When defendant’s brother woke up, he saw defendant and A.R. on a porch outside the home. Defendant was holding a steak knife and talking to someone on a cell phone about an intruder.
At approximately 3:00 p.m., defendant called A.R.’s parents and spoke with A.R.’s sister. Defendant said it was important that he speak with A.R.’s mother or father. At the time, A.R.’s mother was giving a piano lesson and could not take the call. Defendant told A.R.’s sister to have her mother call back right away because it was “pretty serious.” A.R.’s mother called defendant back 15 minutes later but got no answer. She left a message, but defendant never called back.
At approximately 5:20 p.m., M.S. returned home from work and found defendant sitting on the couch watching the same movie he had been watching that morning. M.S. asked where A.R. was and defendant said she was in the shower. M.S. could hear the shower water running. Later, M.S. knocked on the bathroom door where A.R. was supposedly taking a shower but received no answer. She opened the bathroom door and found A.R. lying on the floor dead. M.S. could see A.R. had a neck wound and there was blood on the robe she was wearing. M.S. also saw a towel in the corner of the bathroom and a knife handle sticking out from under a cabinet. When M.S. asked defendant what happened, he did not respond.
An autopsy revealed five lacerations to the back of A.R.’s scalp, bleeding inside her scalp and minor cuts and bruising on her face. She had a gaping wound three to five inches long on her neck with some smaller cuts nearby. There was bruising around A.R.’s eyes, a cut on her finger, and bruises and scrapes on her chest, back, arms and legs. The cause of death was both the blunt force injuries to the back of the head and the large wound to the neck.
At trial, the prosecution presented evidence that defendant had threatened to cut the throat of others on multiple occasions, including his mother, his sister and A.R. Evidence was also presented that defendant had abused M.C., the mother of his child, while they were dating several years earlier.
Defendant testified on his own behalf and denied killing A.R. According to defendant, the first time he realized A.R. was dead was when he heard his mother screaming after finding A.R. in the bathroom. Defendant also denied threatening to cut anyone’s throat or abusing M.C.
Discussion
I
Jury Misconduct
Defendant contends one of the jurors failed to disclose relevant information during voir dire. In particular, juror No. 3 failed to disclose prior contacts with employees of the district attorney’s office and failed to provide details regarding a prior negative experience he had had with law enforcement and the district attorney’s office. Defendant argues these nondisclosures amount to juror misconduct and create a presumption of prejudice.
“The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) A jury verdict may be vacated, in whole or in part, on the basis of juror misconduct that materially affected the substantial rights of a party. (Code Civ. Proc., § 657, subd. (2).)
A juror’s intentional concealment of relevant facts or false answers during voir dire constitutes misconduct. (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 189.) “Voir dire plays a critical function in assuring the criminal defendant that his Sixth Amendment right to an impartial jury will be honored.” (Rosales-Lopez v. United States (1981) 451 U.S. 182, 188 [68 L.Ed.2d 22, 28].) “[T]he efficacy of voir dire is dependent on prospective jurors answering truthfully when questioned. As the United States Supreme Court has stated, ‘Voir dire examination serves to protect [a criminal defendant's right to a fair trial] by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.’” (In re Hitchings (1993) 6 Cal.4th 97, 110-111.)
Although jury misconduct creates a presumption of prejudice (People v. Nesler (1997) 16 Cal.4th 561, 578), this presumption “is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.] [¶] The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life’ [citation] and of society’s strong competing interest in the stability of criminal verdicts [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 296.)
Following his conviction, defendant moved for a new trial on the basis of jury misconduct. In support of the motion, defendant submitted the declaration of defense counsel, who indicated one of the jurors failed to disclose relevant information on the jury questionnaire. According to counsel, the juror said he was not acquainted with anyone from the district attorney’s office when in fact he was and indicated he had been the victim of a robbery but failed to disclose critical facts about the robbery.
At defendant’s request, juror No. 3 was examined in court. He testified that, when filling out the questionnaire, he did not believe he had had any relevant contacts with anyone from the district attorney’s office. Although the juror had spoken with a counselor following the robbery, he did not realize at the time that she was an employee of the district attorney. And although juror No. 3 had been questioned briefly by one deputy district attorney in connection with the robbery and was acquainted with another deputy district attorney, he did not interpret the questionnaire as requiring disclosure of such brief contacts.
Regarding the robbery, juror No. 3 testified this was a home invasion and the experience had been traumatic because one person had been shot, his life had been threatened, he was sick with the flu at the time, and he had had little sleep. He indicated that, following the incident, while he was being interviewed by a police officer, he attempted to stop the interview and leave but was threatened with arrest. However, the juror did not consider this to have been a bad experience with law enforcement because the police officers were just doing their job. And although the juror was not happy with the way the district attorney’s office handled the case, because he had not been kept apprised of the status, he ultimately believed the case had been handled fine because the person who committed the robbery was sent to prison.
In denying the motion for new trial, the trial court credited juror No. 3’s explanation for his answers on the questionnaire. In particular, the court accepted the juror’s explanation that when he answered the question about contacts with personnel in the district attorney’s office, he thought this meant close friends. The court concluded the juror simply misunderstood the question and did not intentionally mislead. The court was persuaded by the fact the juror had identified one of the deputy district attorneys in response to another question about whether he knew anyone who practiced criminal law and had freely identified prior contacts with members of law enforcement. The court accepted the juror’s testimony that he did not know the person he contacted for counseling following the home invasion robbery was a district attorney employee. As for the home invasion robbery, the court concluded the juror had provided sufficient information to alert counsel of the need to inquire further and accepted the juror’s explanation that he did not find it a negative experience with law enforcement because the police were just doing their job.
“In determining whether misconduct occurred, ‘[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.” (People v. Majors (1998) 18 Cal.4th 385, 417.) When the evidence regarding juror misconduct is in conflict, “the trial court [is] in the best position to evaluate the conflicting testimony and determine the prejudicial effect of [the] conduct.” (People v. Miranda (1987) 44 Cal.3d 57, 117.) Such determination, if supported by substantial evidence, must be upheld. (Ibid.) However, in assessing whether the facts found by the trial court constitute prejudicial misconduct, we review the entire record and determine independently whether the defendant was prevented from receiving a fair trial. (English v. Lin (1994) 26 Cal.App.4th 1358, 1364.)
In this instance, the trial court found juror No. 3 did not intentionally fail to disclose relevant information. This determination is supported by the record. Regarding district attorney contacts, the juror did identify one deputy district attorney in answer to a question about whether he knew anyone who practiced criminal law. The juror also explained he did not realize the counselor he had spoken with worked for the district attorney. The court found this explanation credible, and we find no reason to upset that credibility determination. As for the third district attorney employee, the juror explained he spoke with her only briefly in connection with the home invasion. The trial court accepted the juror’s explanation that he did not read the questionnaire to require disclosure of such brief contacts. Again, we find no reason to dispute this credibility determination.
As for the home invasion robbery, the juror did disclose that he had been the victim of a robbery. This alone should have alerted counsel of the need for further inquiry. The questionnaire asked whether the juror or anyone close to him had ever been the victim of a crime and whether he or anyone close to him had ever had a memorably good or bad experience with a law enforcement officer. The juror explained he did not consider the home invasion robbery a memorably good or bad experience with law enforcement. Although the home invasion robbery itself may have been a memorably bad experience, in light of the shooting and the threat on the juror’s life, this relates to the incident itself, not the juror’s experience with law enforcement. And although the interviewing officer threatened the juror with arrest when the juror tried to terminate the interview, the juror indicated the officer was just doing his job. Again, the trial court accepted the juror’s explanation about why he did not consider this a memorably bad experience with law enforcement, and we find no reason to upset that determination.
Furthermore, to the extent the juror believed law enforcement or the district attorney’s office treated him unfairly in connection with the home invasion incident, defendant can hardly claim prejudice in the instant matter, inasmuch as the juror may have held a grudge against the prosecution rather than the defense.
We conclude the trial court properly found no juror misconduct under the circumstances presented.
II
Uncharged Offense Instruction
The jury was instructed on evidence of uncharged offenses, pursuant to CALCRIM No. 852, as follows:
“The People presented evidence that the Defendant committed domestic violence upon [M.C.] and [A.R.] that was not charged in this case. Domestic violence means abuse committed against an adult who is a former cohabitant.
“‘Abuse’ means intentionally or recklessly causing, or attempting to cause, bodily injury or placing another person in reasonable fear or imminent serious bodily injury to himself or herself or to someone else. [¶]... [¶]
“You may consider this evidence only if the People have proved by a preponderance of the evidence that the Defendant, in fact, committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not the fact is true.
“If the People have not met this burden of proof, you must disregard this evidence entirely. If you decide that the Defendant committed the uncharged domestic violence, you may, but are not required to, conclude from the evidence that the Defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the Defendant was likely to commit and did commit the crime charged or a lesser-included offense.
“If you conclude that the Defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with the other evidence. It is not sufficient by itself to prove that the Defendant was guilty of the crime charged or a lesser-included offense. The People must still prove each element of every charge beyond a reasonable doubt, and do not consider this evidence for any other purpose.”
Defendant contends the foregoing instruction unconstitutionally reduced the prosecution’s burden of proof by allowing the jury to convict him based on proof by a preponderance of the evidence that he committed uncharged offenses. Defendant argues the instruction conflicted with the basic circumstantial evidence instruction that permits consideration of circumstantial evidence but nevertheless requires proof beyond a reasonable doubt.
Defendant failed to object to this instruction. Nevertheless, the People agree with defendant the issue is cognizable on appeal because defendant’s substantial rights would be implicated if, as defendant argues, the instruction reduced the prosecution’s burden of proof. We therefore exercise our discretion under Penal Code section 1259 to consider the issue despite the lack of objection.
This court has previously rejected similar challenges to CALCRIM No. 852. (See People v. Johnson (2008) 164 Cal.App.4th 731, 738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.) Referring to the predecessor to CALCRIM No. 852, CALJIC No. 2.50.02, which had been found constitutional in People v. Pescador (2004) 119 Cal.App.4th 252, we explained: “CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely.
“As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in the case. Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all other evidence and specifies that such evidence alone is insufficient to prove the defendant’s guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to the defendant’s benefit.” (People v. Reyes, supra, 160 Cal.App.4th at p. 252.)
Nothing in CALCRIM No. 852 authorizes the jury to use a preponderance of the evidence standard for other than the preliminary question of whether defendant committed the uncharged acts of domestic violence. Viewing the instruction as a whole, it is not reasonably likely the jury would have interpreted the instruction to authorize conviction on the charged offense based on a lower standard than proof beyond a reasonable doubt.
III
Admission of Uncharged Offense Evidence
Defendant contends the trial court abused its discretion in admitting evidence of prior acts of domestic violence against M.C. He argues those acts were too dissimilar to the charged offense to be probative and created a potential for undue prejudice. We find no abuse of discretion.
Evidence Code section 1101 prohibits the admission of character evidence, including evidence of prior, uncharged offenses, when offered to prove the defendant’s commission of charged offenses. (Evid. Code, § 1101, subd. (a).) The purpose of this prohibition “is to avoid placing the accused in a position of having to defend against crimes for which he has not been charged and to guard against the probability that evidence of other criminal acts having little bearing on the question whether defendant actually committed the crime charged would assume undue proportions and unnecessarily prejudice defendant in the minds of the jury, as well as [to] promote judicial efficiency by restricting proof of extraneous crimes.” (People v. Kelley (1967) 66 Cal.2d 232, 238-239.)
One exception to the foregoing prohibition is Evidence Code section 1109, subdivision (a)(1), which reads in relevant part: “[I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”
Defendant acknowledges the applicability of Evidence Code section 1109, but argues the evidence should have been excluded under Evidence Code section 352. That section gives the trial court discretion to exclude otherwise admissible evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
In arguing that the trial court abused its discretion in admitting evidence of uncharged offenses committed against M.C. because those offenses were too dissimilar to the offense charged here, defendant betrays a misunderstanding of Evidence Code section 1109. Although lack of similarity obviously has some bearing on the probative value of the evidence, the lack of similarity does not negate probative value. Unlike Evidence Code section 1101, the application of Evidence Code section 1109 does not depend on the similarity of the acts involved. Domestic violence, by its very nature, is a type of crime where the only witnesses are typically the victim and the perpetrator. Hence, proof of the crime often comes down to the word of one against the other. In enacting Evidence Code section 1109, the Legislature recognized this situation and chose to override the normal rule against the admission of uncharged offense evidence where the prior offense is also domestic violence. In other words, the fact that the prior uncharged offense involved violence against a cohabitant establishes the requisite similarity.
This does not mean, of course, that such categorical similarity always renders the evidence admissible. In a given case, the prejudicial effect of such evidence may override its probative value, especially where, as here, the types of domestic violence are dissimilar. But here, we find little prejudicial effect from the evidence in question.
“The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’” (People v. Karis (1988) 46 Cal.3d 612, 638.) Prejudice refers to possible misuse of evidence, i.e., use for a purpose for which the evidence is not properly admissible. (People v. Hoze (1987) 195 Cal.App.3d 949, 954.)
In light of the heinous nature of the charged offense in this matter, evidence regarding prior acts of domestic violence against M.C. was not particularly shocking. M.C. testified that she lived with defendant for two years, during which he pushed her, smashed her head against a wall, strangled her, ground her lips into her teeth, and forced her to have sex. On one occasion, defendant tried to push M.C. out of a moving car during an argument. On another occasion, defendant slit his own wrists and blamed M.C. for it.
“‘A trial court’s exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered.’” (People v.Green (1995) 34 Cal.App.4th 165, 182-183.)
Although other evidence was presented that defendant had previously threatened to cut the throat of his sister, his mother, and the victim on many occasions, evidence regarding the domestic violence committed against M.C. had the added probative value of demonstrating defendant was willing to put his threats into action. This is not a misuse of such evidence and, hence, does not render it prejudicial as that term is properly understood. Thus, in light of the entire record, the trial court did not abuse its discretion in admitting the prior domestic violence evidence.
IV
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct at various points during argument. First, defendant contends the prosecutor informed the jury it had two choices: reject the testimony of all the prosecution witnesses, or reject the testimony of defendant. Defendant argues this was improper, because the jury was not required to reject the testimony of all the prosecution witnesses in order to find the prosecution failed to prove defendant’s guilt beyond a reasonable doubt. Second, defendant contends the prosecutor suggested to the jury that if defendant formed an intent to kill before or during the act resulting in death, this would satisfy both the malice requirement and the element of premeditation and deliberation. Third, defendant contends the prosecutor improperly commented on defendant’s post-arrest, post-Miranda failure to assert his innocence in a jailhouse conversation with M.C.
Defense counsel failed to object to any of the foregoing alleged misconduct. “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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘“an admonition would not have cured the harm caused by the misconduct.”’ [Citations.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 820-821.)
None of the exceptions to the general rule applies here. There is no reason to believe an objection to any of the alleged misconduct would have been futile or that an admonition to the jury to disregard any misstatements of the law would not have been effective. The jury could easily have been reminded of the necessity that the prosecution prove guilt beyond a reasonable doubt and that premeditation and deliberation requires something more than a mere intent to kill. The jury could also have been instructed that defendant’s assertion of the right to remain silent cannot be used against him. There is no reason to believe the jury would not have followed such admonitions, if necessary. Finally, there is no suggestion here that the court had overruled an objection to the prosecution’s argument prior to any of the alleged incidents.
Defendant contends in the alternative he received ineffective assistance of counsel by virtue of counsel’s failure to object. However, as we recently explained in People v. Mitchell (2008) 164 Cal.App.4th 442, a claim of ineffective assistance “has increasingly become the favored means by which appellate defense counsel’s attempt to avoid any and all claims of forfeiture. In effect, if an issue was forfeited, then counsel’s representation must have been deficient, and the issue must be considered anyway to determine if the ineffective assistance resulted in prejudice. However, that is not the applicable standard.
“Under both the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution, a criminal defendant has a right to the assistance of counsel. (See Strickland v. Washington (1984) 466 U.S. 668, 684-685 [80 L.Ed.2d 674, 691-692, 104 S.Ct. 2052]; People v. Pope (1979) 23 Cal.3d 412, 422 [152 Cal.Rptr. 732, 590 P.2d 859].) This right ‘entitles the defendant not to some bare assistance but rather to effective assistance.’ (People v. Ledesma (1987) 43 Cal.3d 171, 215 [233 Cal.Rptr. 404, 729 P.2d 839].) ‘“[I]n order to demonstrate ineffective assistance of counsel, a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness... under prevailing professional norms.’ [Citations.] Second, he must also show prejudice flowing from counsel’s performance or lack thereof.”’ (In re Avena (1996) 12 Cal.4th 694, 721 [49 Cal.Rptr.2d 413, 909 P.2d 1017].)
“‘[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel.’ (People v. Boyette (2002) 29 Cal.4th 381, 433 [127 Cal.Rptr.2d 544, 58 P.3d 391].) If, as here, the record fails to show why counsel failed to object, the claim of ineffective assistance must be rejected on appeal unless counsel was asked for an explanation and failed to provide one or there can be no satisfactory explanation. (People v. Huggins (2006) 38 Cal.4th 175, 206 [41 Cal.Rptr.3d 593, 131 P.3d 995].) ‘A reviewing court will not second-guess trial counsel’s reasonable tactical decisions.’ (People v. Kelly (1992) 1 Cal.4th 495, 520 [3 Cal.Rptr.2d 677, 822 P.2d 385].)” (People v. Mitchell, supra, 164 Cal.App.4th at pp. 466-467.)
In the present matter, defendant’s ineffective assistance argument consists of the following: “On this record, there can be no plausible rational tactical purpose for trial counsel to fail to make competent and timely objections to preserve this federal constitutional challenge for review. Reasonably competent criminal defense trial counsel should be aware of the relevant procedural default rules and grounds of objection for issues of this nature. Counsel’s failure to litigate this substantial federal constitutional issue must be deemed the result of incompetence, not the result of a reasonable tactical decision.”
This argument does not even attempt to explain how counsel’s failure to object fell below an objective standard of reasonableness. Effective assistance is not perfect assistance. Defendant asserts there can be no tactical basis for counsel’s actions but fails to explain how this is so. “[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.” (People v. Frierson (1991) 53 Cal.3d 730, 749.)
Nor does defendant attempt to explain how he was prejudiced by counsel’s failure to object. “If a defendant has failed to show that the challenged actions of counsel were prejudicial, a reviewing court may reject the claim on that ground without determining whether counsel’s performance was deficient.” (People v. Kipp (2001) 26 Cal.4th 1100, 1123.) “In determining whether an attorney’s conduct so affected the reliability of the trial as to undermine confidence that it ‘produced a just result’ [citation], we consider whether ‘but for’ counsel’s purportedly deficient performance ‘there is a reasonable probability the result of the proceeding would have been different.’ [Citations.]” (People v. Sapp (2003) 31 Cal.4th 240, 263.)
Here, there was no such reasonable probability. Contrary to defendant’s assertions throughout his appellate brief, this was not a close case. Defendant’s mother came home and found A.R. dead and defendant the only person in the home. Defendant’s clothes had the victim’s blood on them and defendant failed to react when asked about the death of his wife. Prior to the murder, defendant had repeatedly threatened to cut the throat of A.R. and others and had committed domestic violence on a prior cohabitant. The only contrary evidence was defendant’s own self-serving testimony, which contained gaping holes and was far from credible.
Defendant’s argument merely presumes counsel’s failure to object fell below an objective standard of reasonableness and he was prejudiced thereby. This will not suffice.
V
Abstract of Judgment
We find a significant error in the abstract of judgment, although it may be one that ultimately has no practical effect. At sentencing, the trial judge sentenced defendant to an indeterminate term of 25 years to life for the killing of his wife, plus one year for the use of a deadly weapon. The abstract of judgment sets defendant’s penalty for the murder at life without the possibility of parole.
In People v. Price (2004) 120 Cal.App.4th 224, the Court of Appeal said: “Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes.” (Id. at p. 242.)
We will order the preparation of an amended abstract of judgment to reflect the sentence imposed at the time of judgment and sentence.
Disposition
The judgment is affirmed. The trial court shall prepare an amended abstract of judgment reflecting that, on count one, defendant was sentenced to an indeterminate term in state prison of 25 years to life.
We concur: SIMS, Acting P. J., CANTIL-SAKAUYE, J.