Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05F05735
CANTIL-SAKAUYE, J.
In this case of familial violence, the victim witnesses’ descriptions of the events at trial differed significantly from their earlier statements to law enforcement. The jury believed the earlier statements. Against this background, defendant Jaime Gabiola Santos appeals his convictions of two felony counts of assault with a firearm in violation of Penal Code section 245, subdivision (a)(2), two felony counts of making criminal threats in violation of section 422, one count of misdemeanor battery in violation of section 243, subdivision (e)(1), and one misdemeanor count of child endangerment in violation of section 273a, subdivision (b). The trial court denied defendant’s motion for new trial. The trial court suspended imposition of judgment and sentencing and placed defendant on five years’ formal probation on counts one and three, the assaults with a firearm, conditioned on, among other things, concurrent service of 180 days in county jail with work furlough recommended. Sentencing on counts two and four, the criminal threats, was suspended pending successful completion of probation. The trial court sentenced defendant to 30 days in county jail on each of his misdemeanor convictions to run concurrently with the concurrent jail time imposed on counts one and three.
Hereafter, undesignated statutory references are to the Penal Code.
On appeal, defendant makes several claims: The evidence is insufficient to support five of his six convictions; there were instructional errors and pleading errors; the prosecutor committed misconduct; the court erred in denying his motion for new trial; the trial court failed to exercise its discretion to treat his assault with a firearm and criminal threat convictions as misdemeanors; and his counsel was ineffective. We shall affirm the judgment.
FACTUAL BACKGROUND
On June 18, 2005, during a 911 emergency call, defendant’s 20-year-old stepson, James Santos, told the 911 operator that his dad (defendant) was “threatening us” and “pointing a gun at us.” Defendant can be heard on the call asking “Do you really want to make me mad?” James tells him to “Stop!” A woman is crying in the background. James tells the operator what kind of gun defendant has and that his sister and mom are with him in the house, although his sister is safe in James’s room. Defendant starts to leave the house, but then comes back in. Defendant can be heard yelling in the background. A short time later, James makes the statement: “Listen. If you’re gonna yell at us, try and make sure the gun is facing away from you.” Defendant responds, although his words cannot be understood. James says “No. You -- . . . You’re the one who’s pointing the gun at us.” Defendant then apparently goes into the garage, takes one of the cars, and drives away.
As James and other family members share the same last name with defendant, we will refer to them by their first names. We mean no disrespect.
As a result of the 911 call, Sacramento Sheriff’s Detective Larry Cromwell and Deputy Albert Franco responded to defendant’s residence. James directed Cromwell to the trunk of a car in the garage where Cromwell located a case containing an unloaded Sig Sauer .40-caliber handgun and two magazines loaded with .40-caliber rounds. When the gun was secure, Cromwell went back to speak with Thelma Santos, James’s mother and defendant’s wife. Thelma was obviously distraught and almost crying, but Cromwell had no trouble communicating with her. He never thought he needed an interpreter as she gave her narrative of what happened.
Thelma told Cromwell she and defendant had been arguing a lot lately. Defendant had been accusing her of cheating on him. That morning, defendant was extremely upset. Defendant had some type of recording that he wanted Thelma to listen to, which he claimed was evidence of her cheating. Thelma listened to the tape, but did not hear anything. When she told defendant she did not hear anything, defendant pointed a gun at her, pushed her against the wall, and told her he was going to blow her away. Thelma told Cromwell she was very afraid. She thought defendant would kill her. Thelma and her children went into a bedroom to let defendant cool off.
Sometime later, according to Thelma, defendant threatened to drag Thelma out if she did not come out of the bedroom on her own. Defendant wanted her to listen to his recordings, but she refused, telling him it was ridiculous and she was not cheating on him. Defendant punched her on the right side of her head with his closed fist. Thelma ran outside to try to get help. When she did not succeed, she went back inside the house to protect her children. When she got inside, her son was on the phone with the police. She heard him say defendant had pointed a gun at him also. During the call defendant left the house, telling Thelma he was going to sue her and that he was going to report what she was doing. When Thelma finished, Cromwell repeated Thelma’s statement back to her and she confirmed it.
Franco spoke with James while Cromwell spoke with Thelma. James told Franco he was woken up around 11:00 that morning by his sister Jamie because of his parents’ fighting. James walked out into the main portion of the house. He saw defendant push Thelma into a wall. James grabbed Thelma and took her inside his bedroom to get away from defendant. They stayed there for about two hours. Then defendant came into the room and wanted James and Thelma to listen to some audio recordings. Defendant thought there was some kind of conspiracy on the recording, but when James and Thelma listened, all they heard was static. Defendant went and grabbed a gun from underneath a pillow on the sofa. Defendant waved the gun around. He wanted James and Thelma to leave the house, but James said he would not leave unless he could take Jamie with him. Defendant told James he would kill James if he took his sister with him. Thelma went outside. When Thelma came back in about 15 minutes later, defendant grabbed the gun that he had put away and pointed it at James and Thelma. Defendant was standing approximately five feet away from them. James said he thought he was going to be shot by defendant. He went up to defendant and “bear hugged him.” He asked Thelma to call 911. James let go of defendant and talked to the operator.
Franco took notes of what James said, went over those notes with James when they finished talking, and would have made corrections if there were any to be made.
Franco then spoke with Jamie Santos, defendant and Thelma’s 11-year-old daughter. Jamie was very calm and well spoken. She told Franco she was in the room with her mother sewing at about 11:30 a.m. when defendant came in yelling at Thelma. Defendant told Jamie to leave and Jamie went to James’s room. She woke James to let him know about the argument. James went out and brought Thelma back to his room to get away from defendant. Two hours later defendant came in and wanted Thelma and James to listen to audio recordings. Awhile later Jamie saw defendant point a gun at Thelma and James. James tried to restrain defendant. Thelma called 911. James got on the phone and defendant left the house.
Four days later on June 22, 2005, Thelma filed an application for a temporary restraining order against defendant. Thelma wrote that the most recent abuse by defendant was on June 18, 2005. In the space for describing what defendant did or said to make her afraid, Thelma wrote: “My husband, Jaime accuses me of cheating him with his money and our marriage. He pointed a gun at me and treaten [sic] me to be hurt if I do not listen to the sex tapes he made and identify the voice he hears. He pushed me to the ground and said he will blast my ears and head if I don’t identify the voice in the tapes he made.” In the space for describing any use or threatened use of guns or other weapons, Thelma wrote: “He pointed a gun at me and said that he will not kill me but he will just let me eat ‘lead[.]’” On another portion of the form, Thelma checked the boxes for defendant “hit me” on the “face” and “head.” She checked boxes for “kill me” and “beat me” as threats made. She also described a prior incident of abuse on October 30, 2004, as involving defendant “pacing back and forth [in] the house with gun in hand and talking to people not there (having hallucinations (?)[)] . . .”
Thelma testified she can read and write English, although she claimed she was not proficient.
At trial, Thelma testified using a Tagalog interpreter, explaining that while she could understand English, she had great difficulty explaining or expressing herself in English. She and defendant speak to each other in their native Tagalog language. Her description at trial of the events of June 18 changed from her description of the events previously given to law enforcement.
At trial, Thelma testified defendant wanted her to listen to what he had on the computer to see if she could recognize the voices. She initially said no, but when asked again, Thelma followed defendant to the computer and listened. She could not hear voices as there was too much static. Defendant was getting upset because he insisted the voices were Thelma’s relatives. At this point, Thelma saw defendant had his gun disassembled for cleaning on the table. For no reason, Thelma asked defendant if he was going to kill her with the gun. Defendant pointed to the gun and said, “No, I’m not going to kill you.” “I’m going to make you gargle with lead.” Defendant smiled and it seemed like a joke. The expression is used as a joke in the Philippines when kids or police are playing around. It does not mean somebody is going to kill you.
As defendant moved, he brushed against Thelma and she fell. She saw James and told him she was going out to cool her temper. James persuaded her to go to his room, where she laid down and slept. Two and a half or three hours later, defendant came into the bedroom and persistently asked her to come out and listen to the computer. Thelma did not want to and decided to go out to the garage to cool her temper. As defendant came towards her, his hands brushed against her right ear. Thelma demonstrated the touching as a light brushing with an open palm. Thelma went outside for a few minutes. When she came back inside, defendant made a comment to her and she stuck her tongue out at him. James told her to call 911. She did not know why. When she reached 911, she handed the phone to James.
Thelma denied much of her statement to Cromwell. She denied defendant aimed or pointed the gun at her. She said the gun was unassembled on the table. Defendant pointed to the gun when she asked him if he was going to kill her with the gun. Thelma also testified defendant did not hit her, never threatened her, and never said he would blow her away. Thelma also denied defendant pointed the gun at either James or Jamie. In the 2004 incident, Thelma claimed she was not afraid of defendant, but afraid for him. Thelma said she found many mistakes in the police report when she obtained a copy of it in July 2005.
Thelma admitted filing for a restraining order, but claimed she was ordered to do so by her brother-in-law and that she did not understand it was against defendant. She said the statement on the application that defendant pointed a gun at her should have been defendant pointed to the gun. When she wrote defendant pushed her to the ground, she was trying to say she fell to the ground.
Jamie testified at trial. She testified to hearing defendant and Thelma argue several times on June 18. She was mostly in James’s bedroom. Jamie admitted telling Franco that defendant pointed a gun at James and that James tried to restrain defendant. She said she did not see that, but heard it happened from James. Jamie denied hearing defendant threaten Thelma or James. She denied seeing defendant strike Thelma. Jamie testified she was not afraid of defendant, that he had not done anything mean, and that he was a good dad.
James testified he went out into the kitchen when he heard raised voices between Thelma and defendant. They were speaking in Tagalog and throwing jokes back and forth. It was a normal conversation. Thelma was sitting on the floor against the wall. She said she stumbled. James went back to his own room. When he returned to the kitchen for something to eat, defendant and Thelma’s voices were again raised. Thelma was getting upset, as was defendant. James told Thelma to go to his room to cool off.
Eventually defendant came to James’s room and asked them to come out and listen to some recordings. James told defendant he was not going to go outside unless defendant kept his gun safe. James said the gun had been lying around for a couple of days already and he did not like having the gun out when people were upset. Defendant put the gun away in a leather case that he tucked under a pillow of a couch. James and Thelma listened to defendant’s tapes, but could hear only static and muffled voices. Thelma got fed up and went outside. Thelma later came inside and taunted defendant by sticking her tongue out at him. James bear hugged defendant because he thought he needed to stop defendant and Thelma from taunting each other. James did not think defendant had a gun on him, that he was going to attack Thelma or that he was threatening to assault James. James just wanted to end the situation. James told Thelma to call 911. James testified he lied on the 911 call because he wanted the cops to immediately respond. James either did not remember or denied many of his statements to Franco. James testified defendant never threatened any of them with a gun and James never thought defendant would shoot him or Thelma. James said he never saw defendant load the gun that day and never saw him hit or push Thelma. James denied that he, Jamie or Thelma were afraid of defendant.
Sacramento County Sheriff’s Deputy Gregory Smith and Deputy Jeylon Strong testified at trial that they had previously responded to a call regarding defendant on November 1, 2004. Thelma told the officers that defendant was acting strange and carrying a gun around the house. Thelma was afraid for her safety, so she went to a friend’s home. She was afraid to return home. The officers found defendant in the garage of his residence. Defendant had ammunition magazines or clips in his pockets and a gun was recovered from his car. Defendant was taken to the Sacramento County Mental Health Center on a Welfare and Institutions hold. (Welf. & Inst. Code, § 5150.)
Defendant testified on his own behalf. He admitted arguing with Thelma on June 18 over listening to his tapes. He denied pointing a gun at her. He said his gun had been disassembled for cleaning on the computer table, but he put it in the sofa covered with pillows after he asked James and Thelma to listen to the tapes. He never loaded the gun at any time on June 18. He never pointed it at anybody on June 18. He never hit Thelma with a closed fist. He never pushed her down or into a wall. When Thelma stuck her tongue out at him, he did not attack her, threaten her, put his hands on her, or point a gun at her. Defendant never threatened to kill James and never pointed a gun at him. The second time Thelma stuck her tongue out, James bear hugged defendant. Defendant did not understand why James called the police. The gun was still under the pillows of the sofa.
DISCUSSION
I.
Challenges to Defendant’s Assault With A Firearm Convictions
Defendant was convicted of assaulting Thelma and James with a firearm. He raises several challenges.
A. Sufficiency of the Evidence
Since assault with a firearm requires the present ability to inflict a violent injury, merely pointing an unloaded gun at another person, without any attempt to use the gun as a club or bludgeon, is not such an assault. (People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3, and cases cited therein (Rodriguez); People v. Mosqueda (1970) 5 Cal.App.3d 540, 544.) Noting this settled law, defendant claims his two convictions of assault with a firearm are not supported by substantial evidence because no evidence established defendant’s gun was loaded. In fact, defendant claims uncontradicted evidence establishes the gun was not loaded.
When sufficiency of the evidence is challenged, “we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] . . . ‘The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt.”’ [Citation.]” (People v. Snow (2003) 30 Cal.4th 43, 66.)
“An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 396.) “Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury. [Citation.]” (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
“Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. [Citation.] Thus, when a criminal defendant claims on appeal that his conviction was based on insufficient evidence of one or more of the elements of the crime of which he was convicted, we must begin with the presumption that the evidence of those elements was sufficient, and the defendant bears the burden of convincing us otherwise.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Defendant has not done so here.
The following discussion from Rodriguez, supra, 20 Cal.4th at pages 12-13 is instructive: “California courts have often held that a defendant’s statements and behavior while making an armed threat against a victim may warrant a jury’s finding the weapon was loaded. For example, in People v. Montgomery (1911) 15 Cal.App. 315 [114 P. 792] (Montgomery), the Court of Appeal, in the absence of direct evidence the gun used in the offense was loaded, and despite the defendant’s own testimony it was not, held the jury was entitled, under the circumstances of the case, to reject contrary testimony and find the gun was loaded. (Id. at pp. 317-319.) The court noted the defendant was enraged when he left a fight and that he returned with a gun he leveled at the victim, declaring, ‘I have got you now.’ (Id. at p. 318.) These words, the court reasoned, would be meaningless unless the weapon were loaded. (Ibid.)
“Similarly, in People v. Mearse (1949) 93 Cal.App.2d 834, 836-838 [209 P.2d 960] (Mearse), the Court of Appeal, in rejecting a sufficiency of evidence challenge to an assault conviction, concluded the defendant’s command to the victim to halt or ‘I’ll shoot’ indicated the gun was then loaded. ‘The acts and language used by an accused person while carrying a gun may constitute an admission by conduct that the gun is loaded.’ (Id. at p. 837; cf. People v. Hall (1927) 87 Cal.App. 634, 636 [262 P. 50] (Hall) [robbery prosecution: ‘The defendant’s acts and the language used by him in the commission of the robbery constituted an admission by conduct, an implied assertion that the gun was loaded’].)”
In Rodriguez, supra, 20 Cal.4th 1, the defendant put a gun to the victim’s chin and warned the victim to keep his mouth shut or “‘I could do to you what I did to them.’” (Id. at p. 12.) The Supreme Court found “the jury could reasonably have interpreted the warning as an admission by defendant of his present ability to harm [the victim].” (Ibid.)
Here, Thelma told one of the responding officers that defendant pointed a gun at her and told her he was going to blow her away. In her application for a temporary restraining order, made four days after the incident, Thelma wrote that defendant pointed a gun at her and threatened to hurt her. She wrote that defendant “said he will blast my ears and head if I don’t identify the voice in the tapes he made.” In the space for describing any use or threatened use of guns or other weapons, Thelma wrote: “He pointed a gun at me and said that he will not kill me but he will just let me eat ‘lead[.]’” The jury was not required to accept Thelma’s explanation that the phrase “eat lead” or “gargle lead” was simply a Filipino joke. Such explanation was contradicted by the fact Thelma checked a box in the application indicating defendant threatened to “kill me[.]” The jury could have reasonably rejected the family’s trial testimony about the disassembled or unloaded gun. Defendant’s conduct and statements sufficiently support a finding that defendant pointed a loaded gun at Thelma, even if he later unloaded it when he placed it in the car in the garage.
Similarly, defendant’s conduct and statements sufficiently support a finding that the gun was loaded when he pointed it at James. To begin with, we have just concluded the jury could have found defendant pointed a loaded gun at Thelma. There is no evidence he unloaded the gun before pointing it at James. Moreover, James told a responding officer that defendant had waved his gun around and wanted James and Thelma to leave the house. James told defendant he would not leave unless he could take Jamie with him. Defendant told James he would kill James if he took his sister with him. A few minutes later, when Thelma came back into the house, defendant grabbed the gun and pointed it at James and Thelma. James said he thought he was going to be shot by defendant. He went up to defendant and “bear hugged him.” James told the 911 operator that defendant was “threatening us” and “pointing a gun at us.”
Viewed as a whole, in favor of the judgment, the evidence is sufficient to support defendant’s convictions of assault of Thelma and James with a firearm.
In his reply brief, defendant complains that this “new theory” of circumstantial evidence was never presented to the jury by the prosecutor, that the jury was not instructed that the gun must be loaded and that the jury was misled to the contrary. In reviewing the sufficiency of the evidence to support a conviction, we review the evidence, not the prosecutor’s arguments. We conclude there was substantial evidence from which the jury could infer the gun was loaded. We reject defendant’s arguments regarding the instructions in the next section.
B. The Trial Court Did Not Fail To Instruct Or Mislead The Jury Regarding The Necessity For The Firearm To Be Loaded
Defendant next claims the jury instructions on the assault with a firearm charges were inadequate because they failed to inform the jury that defendant could not be guilty of the crimes if the gun was unloaded. Defendant relies on People v. Sylva (1904) 143 Cal. 62, a case reversed by the Supreme Court for instructional error where the trial court gave ambiguous and misleading instructions regarding assault with a firearm and refused to give defendant’s requested clarifying instruction that expressly told the jury a loaded gun was required for defendant to be guilty of assault with a firearm. (Id. at pp. 64-65.)
In contrast here, the jury was instructed on the elements of assault with a firearm in the form of Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 875. CALCRIM No. 875 clearly informed the jury that the People had the burden to prove, as an element of the offense, that “[w]hen the defendant acted, he had the present ability to apply force with a firearm.” Defendant did not request any further clarifying instruction. Like the court in People v. Mosqueda, supra, 5 Cal.App.3d at page 544, we find the trial court’s instructions to be sufficient. Under these circumstances, the jury could not have found a present ability to apply force with a firearm if it found defendant’s gun was unloaded.
We reject defendant’s further claim that the jury instructions were misleading because the trial court also instructed the jury that the gun did not need to be loaded in connection with the allegation of personal use of a firearm. (§ 12022.5, subd. (a); CALCRIM No. 3146.) The jury was first instructed on the charged crimes regarding the elements of assault with a firearm and then on the elements of simple assault as a lesser crime. The jury was then instructed on completion of the various verdict forms for each charged crime and each lesser included offense. The jury was next told that if the jury found defendant guilty of assault with a firearm, then it must decide whether, for each of those crimes, the prosecution proved the additional enhancement that defendant personally used a firearm during the commission of the crime. As to this separate finding, the trial court thereafter instructed the jury on the elements for the personal use enhancement. We assume jurors are intelligent persons who are capable of understanding and following the instructions given to them. (People v. Yovanov (1999) 69 Cal.App.4th 392, 407, questioned on other grounds in People v. Mabini (2001) 92 Cal.App.4th 654, 662.) Reading them as a whole, the jury was not mislead by the instructions simply because the charged crime required more than the enhancement.
In his reply brief, defendant brings to our attention the recent case of People v. Sinclair (2008) 166 Cal.App.4th 848, which held it was error to impose a section 12022, subdivision (a)(1) one-year sentence enhancement for use of a firearm on a conviction for assault with a firearm under section 245, subdivision (a)(2), because section 12022, subdivision (a)(1), precludes the imposition of the enhancement where arming is an element of the offense, which it is for assault with a firearm. (People v. Sinclair, supra, at pp. 855-856.) Based on Sinclair, defendant contends “the instruction on personal use of a firearm was erroneously applied to the assault charges.” Not so. Defendant was not charged with a section 12022, subdivision (a)(1) enhancement, but with an enhancement under section 12022.5, subdivisions (a) and (d). Subdivision (d) of section 12022.5 specifically provides for imposition of the enhancement “[n]otwithstanding the limitation in subdivision (a) relating to being an element of the offense, . . . for any violation of Section 245 if a firearm is used[.]” Moreover, judgment and sentencing has not been imposed and defendant has been placed on probation.
Nor did the prosecutor’s closing argument contribute to any confusion on these points. The prosecutor argued in closing that the element of present ability to apply force with a firearm that is required for assault with a firearm was met if the gun was loaded. She argued the evidence circumstantially showed the gun was loaded. The prosecutor later noted the personal use of a firearm enhancement and that “all that means, he displayed the firearm in a menacing manner.” The arguments of the prosecutor expressly focused the jury on the need to find defendant pointed a loaded gun in order to convict him of assault with a firearm and did not suggest the elements for the personal use enhancement were applicable to the underlying crime.
C. The Trial Court’s Failure To Instruct On Unanimity
Defendant claims reversible error in the trial court’s failure to provide a unanimity instruction since the prosecution presented evidence of several distinct acts that the jury could have found to constitute an assault with a firearm and the prosecutor made no election between the purported assaults. We conclude a unanimity instruction was not required on the assault count relating to James. We conclude a unanimity instruction should have been provided on the assault count relating to Thelma, but the failure to instruct was harmless beyond a reasonable doubt. We explain.
“‘It is fundamental that a criminal conviction requires a unanimous jury verdict (Cal. Const., art. I, § 16; People v. Wheeler (1978) 22 Cal.3d 258, 265 []).’ [Citation.] What is required is that the jurors unanimously agree defendant is criminally responsible for ‘one discrete criminal event.’ (People v. Davis (1992) 8 Cal.App.4th 28, 41 [10 Cal.Rptr.2d 381], original italics.) ‘[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed . . . that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.’ (People v. Gordon (1985) 165 Cal.App.3d 839, 853 [212 Cal.Rptr. 174], fn. omitted, original italics.)” (People v. Thompson (1995) 36 Cal.App.4th 843, 850 (Thompson); accord People v. Norman (2007) 157 Cal.App.4th 460, 464 (Norman).)
“[N]o unanimity instruction is required,” however, “where the acts proved constitute a continuous course of conduct. [Citation.] ‘“This exception arises in two contexts. The first is when the acts are so closely connected that they form part of one and the same transaction, and thus one offense. [Citation.] The second is when . . . the statute contemplates a continuous course of conduct of a series of acts over a period of time.”’” (People v. Napoles (2002) 104 Cal.App.4th 108, 115; see Thompson, supra, 36 Cal.App.4th 843, 851.) “This is because in both cases, the multiple acts constitute one discrete criminal event. [Citation.]” (People v. Sanchez (2001) 94 Cal.App.4th 622, 631 (Sanchez).)
With respect to the first strand of the exception, “courts have found a continuing course of conduct where the wrongful acts were successive, compounding, interrelated, and aimed at a single objective. [Citation.]” (Sanchez, supra, 94 Cal.App.4th at p. 632.) The key is whether there is a reasonable basis for the jury to distinguish between defendant’s acts. (See People v. Stankewitz (1990) 51 Cal.3d 72, 100 (Stankewitz) [“The ‘continuous conduct’ rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them”]; People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14 [Even where a defendant “suggests differing defenses to each of the alleged acts, still it must be determined whether there is any ‘reasonable basis’ for the jury to distinguish between them in determining whether the ‘continuous conduct’ rule applies”].)
Where the continuous course of conduct exception does not apply and a unanimity instruction is required, we consider the failure to provide the instruction under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]), which requires the error to be harmless beyond a reasonable doubt. (Thompson, supra, 36 Cal.App.4th 843, 853.) “The failure to give a unanimity instruction may be harmless error if we can conclude beyond a reasonable doubt that all jurors must have unanimously agreed on the act(s) constituting the offense. [Citations.]” (Norman, supra, 157 Cal.App.4th at p. 466.)
The evidence presented two possible assaults of James with a firearm. First, James told Franco defendant grabbed his gun and pointed it at James and Thelma when Thelma returned from outside. James responded by bear hugging defendant and telling Thelma to call 911. Secondly, James’s statements during the 911 call corroborate his statement to Franco and suggest defendant was again pointing the gun at him and Thelma during the call. Jamie told Franco she saw defendant point a gun at Thelma and James. James then tried to restrain defendant and Thelma called 911.
We conclude the continuous course of conduct exception applies to these acts. The acts described were closely connected in time and place. They essentially formed part of one continuous transaction. (See Sanchez, supra, 94 Cal.App.4th at p. 632; Thompson, supra, 36 Cal.App.4th at p. 851.) Defendant, through his own trial testimony and that of his family, denied he ever pointed a gun at James. There was no reasonable basis for the jury to distinguish between defendant pointing the gun at James and Thelma just prior to the bear hug and 911 call and pointing the gun at them during the 911 call. No unanimity instruction was required.
Defendant denied ever pointing a gun at his family. Thelma never claimed to have seen defendant point a gun at James, but only claimed in her statement to Cromwell that she heard James tell the 911 operator that defendant did so. Jamie claimed at trial that she did not see defendant point the gun at James and Thelma, but only heard James state that was so. At trial James basically denied his statements to Franco and testified he lied on the 911 call. Thus, the position of each family member at trial was a denial that the acts occurred.
A slightly different analysis applies to the assault of Thelma with a firearm.
The evidence presented several possible assaults of Thelma with a firearm: (1) According to Thelma’s statement to Cromwell, defendant pointed a gun at her, pushed her into a wall and threatened to blow her away when she refused to listen to defendant’s tapes; (2) In Thelma’s application for a restraining order, she stated defendant pointed a gun at her and threatened to hurt her if she did not listen to his tapes. She said that defendant pushed her to the ground and said “he will blast my ears and head if I don’t identify the voice in the tapes he made.” Thelma also wrote: “He pointed a gun at me and said that he will not kill me but he will just let me eat ‘lead’”; (3) According to James’s statement to Franco, defendant pointed the gun at him and Thelma several hours later after Thelma returned from being outside; and (4) James’s statements during the 911 call suggest defendant pointed the gun at them before the call and was again pointing the gun at them during the call.
It is not clear in the application for a restraining order whether Thelma was describing separate acts of pointing the gun or giving an alternate description of the incident she related to Cromwell. To the extent the jury could have found Thelma’s application for a restraining order described separate acts of defendant pointing a gun at Thelma arising from the tape incident Thelma related to Cromwell, it appears all of the acts were closely connected in time and therefore, could be considered a continuous course of conduct. Similarly, we have already concluded the two acts related by James to Franco were so closely connected in time that they were a continuous course of conduct.
However, the incidents Thelma described to Cromwell and in her application were not a continuous course of conduct with the acts described by James. This is so because Thelma’s incidents were several hours apart from the acts described by James and there was a “reasonable basis for the jury to distinguish between them.” (Stankewitz, supra, 51 Cal.3d at p. 100.) Specifically, the incidents described by Thelma all appear to have occurred during her interaction with defendant over listening to his tapes before she went into James’s bedroom. James told Franco that he witnessed defendant push Thelma at that time, but James did not mention defendant pointing a gun at Thelma at that point. James said that defendant pointed the gun at him and Thelma several hours later after they had come out of the bedroom. This was supported by the tape of the 911 call, although James claimed at trial that his statements on the tape were lies. Thelma claimed to have only heard James tell the 911 operator that defendant had pointed a gun at him; one inference being she was not part of that incident.
Thus, it appears there were two sets of events that could have formed the basis for the jury’s finding that defendant assaulted Thelma with a firearm: one occurring before she went into James’s bedroom; the other occurring when she left James’s bedroom. In her closing argument the prosecutor did not select which set of acts she was relying on for the charges. A rational basis for distinguishing them existed as the jury could have chosen to believe the prior statements of either James or Thelma or reconciled them and believed both. Therefore, the jury should have been given a unanimity instruction.
Nevertheless, we find the failure to give a unanimity instruction harmless. The jury’s finding of guilt on the charge of assault with a firearm on James can only be understood as a rejection of defendant’s denial of pointing a gun at any member of his family and an acceptance of James’s statement to Franco that defendant pointed a gun at him and Thelma, as corroborated by the 911 call. Given the credibility problems associated with the myriad prior inconsistent statements of the witnesses here, the 911 call stands out as one of the few objective pieces of evidence and likely played a significant role in the jury’s verdicts. Thus, we can say beyond a reasonable doubt that the jury unanimously agreed on such acts as constituting the offense relating to Thelma (Norman, supra, 157 Cal.App.4th at p. 466), even if we cannot say whether the jury also believed defendant pointed the gun at Thelma earlier in the day as she described.
II.
Challenges to Defendant’s Criminal Threat Convictions
Defendant was convicted of making criminal threats to Thelma and James in violation of section 422. He raises two challenges.
A. Sufficiency of the Evidence
Defendant claims the evidence fails to support his two convictions for criminal threats under section 422.
“In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat--which may be ‘made verbally, in writing, or by means of an electronic communication device’--was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
According to Thelma’s statement to Cromwell, defendant pointed a gun at her, pushed her into a wall and threatened to blow her away when she refused to listen to defendant’s tapes. In Thelma’s application for a restraining order, Thelma stated defendant pointed a gun at her and threatened to hurt her if she did not listen to his tapes. Defendant pushed her to the ground and said “he will blast my ears and head if I don’t identify the voice in the tapes he made.” Thelma also wrote: “He pointed a gun at me and said that he will not kill me but he will just let me eat ‘lead[.]’” She checked boxes on the application for “kill me” and “beat me” as threats made.
In his statement to Cromwell, James said defendant was waving a gun around and wanted James and Thelma to leave the house, but James said he would not leave unless he could take Jamie with him. Defendant told James he would kill James if he took his sister with him. James stayed inside the house, while Thelma left.
Defendant argues this evidence is not substantial evidence of criminal threats because (a) Cromwell and Franco only summarized the statements provided by Thelma and James, (b) the statements do not take into consideration the difficulties of interpretation of language when defendant and Thelma were speaking in Tagalog, (c) Thelma wrote in the application that defendant said he would not kill her, (d) Thelma testified that to “eat lead” or “gargle with lead” was a Filipino joke, (e) that these latter phrases have no clear meaning as a criminal threat, (f) that all of the statements to Thelma were ambiguous emotional outbursts or taunts, and that James did not suffer any sustained fear as a result of defendant’s purported threat. We reject these claims.
Defendant’s arguments depend on his view and construction of the evidence. However, the record reflects ample reason for the jury to have rejected defendant’s position. Cromwell testified he had no trouble communicating with Thelma. He never thought he needed an interpreter as she gave her narrative of what happened. Although Cromwell and Franco admitted they summarized the statements given by Thelma and James, both testified that they took notes during the interview, that they reviewed those notes with Thelma and James immediately afterwards, and that Thelma and James agreed with the statements at that time. Although Thelma speaks Tagalog with defendant, she can both read and write English. The record reflects Thelma obtained a copy of the police reports, but did not correct the statements attributed to her until trial when she claimed they were mistakes or misinterpretations. In her application for a restraining order, Thelma stated that defendant said he would not kill her, but she also checked a box indicating defendant did threaten to kill her. The jury did not have to believe her claim at trial that defendant’s statements were just jokes, particularly as her conduct at the time in calling 911 and filing for a restraining order demonstrate she took the threat(s) seriously. Certainly the ordinary meaning of the words conveyed a specific serious threat of death or great bodily harm. As the statements to Thelma and James were made in the context of defendant waving a gun around, pushing Thelma into a wall or onto the ground and specifically pointing a gun at them, the threats were more than ambiguous emotional outbursts. (Cf. In re Ryan D. (2002) 100 Cal.App.4th 854, 861.) James stayed in the house when Thelma left. He later called 911. James’s actions thus support the conclusion that he took the threat seriously, even if he later was able to speak with Franco in a calm and normal tone. Considered with the surrounding circumstances, the threats were sufficiently “‘unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.’” (In re George T. (2004) 33 Cal.4th 620, 635; § 422.)
Substantial evidence supports the jury’s verdicts on counts two and four, making criminal threats against Thelma and James.
B. Unanimity Instruction
Defendant again argues the trial court prejudicially erred in failing to provide a unanimity instruction on the criminal threat counts. We disagree.
Defendant claims the instruction was required for the charge of making a criminal threat against James because some jurors may have based their verdict on James’s statement to Franco that defendant threatened to kill him if he took his sister out of the house, while others may have relied on the prosecutor’s misstatement in her closing argument that defendant told James he was “going to blow [him] away.” The only evidence of a specific threat before the jury was defendant’s threat to kill James if he took Jamie out of the house with him. The prosecutor’s argument was not evidence and in fact, was a misstatement of the evidence. The jury was instructed that counsels’ arguments were not evidence. (CALCRIM No. 222.) As the evidence presented only a single verbal threat against James, no unanimity instruction was required.
A different situation was presented by the evidence of threats against Thelma. Thelma told Cromwell defendant threatened to blow her away. In her application for a restraining order, she mentioned several arguably separate threats, including that defendant threatened to hurt her if she did not listen to his tapes, that he would “blast [her] ears and head if [she did not] identify the voice in the tapes he made[,]” and that, while he would not kill her, he would “just let [her] eat ‘lead[.]’” She checked boxes on the application for “kill me” and “beat me” as threats made.
The jury could have found these threats were largely Thelma’s efforts to translate the Tagalog words defendant used and so could have been merely different ways of describing the same threat. However, to the extent there were separate threats, we conclude defendant’s statements, which were all made during defendant’s interaction with Thelma before she retreated to James’s bedroom, were part of a continuous course of conduct. All of the threats were part of defendant’s efforts to get Thelma to listen to his tapes and identify the voice(s) on them. “[T]he wrongful acts were successive, compounding, interrelated, and aimed at a single objective. [Citation.]” (Sanchez, supra, 94 Cal.App.4th at p. 632.)
We recognize that at trial Thelma testified defendant said he was not going to kill her, but did say, as a joke, that he was going to make her “gargle with lead.” We take this as a tacit admission by Thelma of defendant’s “eat lead” statement in her application for a restraining order, but a denial that it caused her any sustained fear as she claimed to have understood defendant’s comment as a joke. At trial, she denied defendant ever threatened her and specifically testified he never said he would blow her away. Thus, Thelma consistently denied defendant made any threats even though she admitted he made one of her reported comments and denied he made others. We conclude the continuous conduct rule was applicable.
However, even if we were to find that the variation in the form of Thelma’s recantation of her earlier statements (denying some and explaining another one as a joke) made the continuous conduct rule inapplicable, we would find the failure to provide a unanimity instruction as to count two (criminal threat against Thelma) was harmless beyond a reasonable doubt. Given the strong evidence of Thelma’s understanding of defendant’s comments as threats by her calling 911 and filing for a restraining order, there was no rational basis for the jury to distinguish between the various threats and reject only a portion of Thelma’s trial recantation of her prior statements. As the record indicates the jury rejected Thelma’s trial recantation, the jury must have unanimously agreed defendant made the threats reported by Thelma.
Defendant concludes his argument regarding the need for a unanimity instruction on the criminal threat counts with a complaint about the instruction given the jury on the elements of a criminal threat. (CALCRIM No. 1300.) He contends the insertion of “Thelma and/or James” into the instruction’s description of the elements of the offense “permitted guilty verdicts on both counts if some elements were found only as to Thelma while others were found only as to James.” Defendant also contends, without analysis or citation to any authority, that the instruction incorrectly described the fourth element of the offense. Defendant’s arguments are not properly presented under appropriate headings as required by rule 8.204(a)(1)(B) of the California Rules of Court. Moreover, the arguments are not properly made as they are perfunctorily asserted without development as discrete contentions. We reject them on these grounds. (People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4.)
III.
Challenges to Defendant’s Battery Conviction
A. Reference To “Domestic Violence” In Instruction And Verdict
Defendant was charged in count five with misdemeanor battery in violation of section 243, subdivision (e)(1), “in that . . . defendant did willfully and unlawfully use force and violence upon the person of THELMA SANTOS, a person who was the parent of the defendant’s child.” The jury was instructed on battery, but the instruction told the jury that defendant was “charged in Count 5, Domestic Violence, with battery against his spouse.” (Italics added.) The verdict form used by the jury found defendant guilty “of the crime of Violation of Section 243(e)(1) . . ., Domestic Violence on Thelma Santos, as charged in Count Five of the Information.” (Italics added.)
This count was charged in the amended complaint that was filed and deemed an information on the date of defendant’s preliminary hearing.
Defendant contends the reference to “domestic violence” was the result of the prosecutor’s attempt to justify using defendant’s 2004 conduct as propensity evidence under Evidence Code section 1109 (section 1109) and that such reference required the prosecution to plead and prove, and the trial court to instruct on, the statutory definition of domestic violence under section 13700, subdivision (b). We disagree.
Section 1109 defines domestic violence, in relevant part, as having the meaning set forth in section 13700. (§ 1109, subd. (d)(3).) Section 13700 defines domestic violence as “abuse” committed against certain persons including a spouse or person with whom the suspect has had a child. (§ 13700, subd. (b).) Section 13700 defines the term “abuse” as meaning “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another.” (§ 13700, subd. (a).)
Defendant was charged with, the jury was instructed on, and the jury found defendant guilty of battery in violation of section 243, subdivision (e)(1). Defendant did not object to the variances in the instruction or verdict form from the information, thus forfeiting any challenge to them. (People v. Bolin (1998) 18 Cal.4th 297, 330.) Even if the issue was not forfeited, however, we see no prejudice to defendant who was on notice at all times of the substance of the battery charge, defended against the battery charge, and where the evidence was uncontradicted Thelma was defendant’s spouse and the parent of defendant’s child Jamie. The description of the offense as “domestic violence” was simply extraneous. (Id. at p. 331 [“‘Technical defects in a verdict may be disregarded if the jury’s intent to convict of a specified offense within the charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.’”].)
While we find no prejudicial error, the prosecution’s insertion of unnecessary shorthand labels for the charged offenses into instructions and verdict forms unnecessarily raises potential issues on appeal and we disapprove of the practice.
B. Admission of the 2004 incident under Evidence Code section 1109
In a related claim, defendant contends the prosecution must plead and prove both the present charge and the prior act constitute domestic violence for evidence of alleged prior domestic violence to be admissible under Evidence Code section 1109. Defendant cites no authority for this contention and we reject it. The admissibility of evidence regarding uncharged domestic violence, here the 2004 incident that resulted in defendant’s mental health hold, is a question of law to be resolved by the trial court, if necessary by an Evidence Code section 352/402 hearing. (§ 1109, subd. (a)(3); see People v. Garcia (2001) 89 Cal.App.4th 1321, 1336.)
In this case the record reflects the prosecution filed a pretrial motion in limine seeking an order allowing the admission of evidence regarding the 2004 incident pursuant to Evidence Code section 1109. The record suggests that the court and counsel engaged in an unreported discussion with the court relating to the admission of the evidence during which defendant stipulated to its admission as a tactical choice. The following day, however, defense counsel filed a written motion in limine to exclude the evidence and argued for its exclusion until defense counsel had a further conversation with defendant. Defense counsel then withdrew the motion to exclude the evidence. The trial court expressed some uncertainty whether the 2004 incident qualified as section 1109 evidence, but stated its understanding that defendant now wanted the evidence admitted. After a few further comments by the prosecutor and the trial court, defense counsel reiterated that he was withdrawing defendant’s motion and would “[l]et the jury decide based on the facts.”
Now, defendant argues on appeal that the evidence was erroneously admitted as “the uncharged 2004 incident was neither an offense nor involved ‘domestic violence’ as defined in the governing statutes.” We conclude defendant affirmatively waived any objection to the admission of the evidence under Evidence Code section 1109 by his actions in the trial court. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371 [“‘“[F]orfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right’”’”].)
As the record reflects a tactical choice made in consultation with defendant and defendant has not provided any explanation on appeal of why it could not have been a sound tactical choice, we reject any related claim of ineffective assistance of counsel. (People v. Duncan (1991) 53 Cal.3d 955, 966 [reviewing courts indulge in strong presumption that defense counsel’s action might be considered sound trial strategy].)
IV.
Challenges To Child Endangerment Conviction
A. Pleading Variance
“Section 273a defines both felony and misdemeanor child abuse. The criminal acts proscribed by section 273a are: (1) willfully causing or permitting any child to suffer, or (2) inflicting thereon unjustifiable physical pain or mental suffering, or (3) having the care or custody of any child, willfully causing or permitting the person or health of such child to be injured, or (4) willfully causing or permitting such child to be placed in such situation that his or her person or health is endangered. If the act is done under circumstances or conditions likely to produce great bodily injury or death, it is a felony (§ 273a, subd. (a)); if not, the offense is a misdemeanor (§ 273a, subd. (b)). [Citation.]” (People v. Moussabeck (2007) 157 Cal.App.4th 975, 980.)
Defendant was charged with a misdemeanor violation of section 273a “in that . . . defendant did, . . ., willfully and unlawfully inflict on Jaime [sic] Doe, a child of 11 years, unjustifiable physical pain and mental suffering and injure, cause, and permit said child to suffer.” (Capitalization omitted.) The information did not include language charging defendant with willfully causing or permitting Jamie to be placed in a situation where her health was endangered, the fourth form of violating section 273a as described by the statute and People v. Moussabeck, supra, 157 Cal.App.4th at page 980. Nevertheless, the trial court instructed the jury on count six that defendant was charged with child abuse and instructed on the elements of that offense only in terms of child endangerment. (See CALCRIM No. 823, alternative 1D.) The verdict form returned by the jury found defendant guilty “of the crime of Violation of Section 273a(b) . . ., Child Endangerment upon Jamie Santos, as charged in Count Six of the Information.”
Defendant claims he was improperly convicted of the uncharged offense of “child endangerment” in violation of both jurisdictional and due process requirements. We disagree.
“Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citations.]” (In re Hess (1955) 45 Cal.2d 171, 175.) This requirement provides a jurisdictional bar to a defendant being convicted of any offense that is neither charged nor necessarily included in the alleged crime. (Id. at pp. 174-175; see In re Carlos S. (1979) 94 Cal.App.3d 377, 380.)
However, “an exception to [the rule barring conviction of uncharged and nonincluded offenses] has long been recognized in cases where a defendant expressly or impliedly consents to have the trier of fact consider a nonincluded offense[.]” (People v. Toro (1989) 47 Cal.3d 966, 973, disapproved on other grounds in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.) Where a charge is added by verdict forms and jury instructions, “a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice.” (People v. Toro, supra, 47 Cal.3d at p. 976.)
To the extent the change in the form of the violation of section 273a submitted to the jury is considered a submission of an uncharged and nonincluded offense to the jury, defendant consented to the new charge by his failure to object.
As there is nothing in the record to suggest the evidence was different due to the change in the form of violation of section 273a or that defendant lacked any notice necessary to his defense of the charge of child endangerment, defendant suffered no prejudice from the change. On that basis, we reject his alternate claim of ineffective assistance of counsel in his counsel’s failure to object. (Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674].)
B. Substantial Evidence Of Child Endangerment
Defendant claims insufficiency of the evidence to support his conviction of child endangerment. Defendant takes issue with the prosecutor’s theory that “[w]alking around this two-bedroom home with a loaded gun threatening to kill people puts that child in an endangered environment” because he claims there was no evidence the gun was loaded and there was no evidence defendant’s alleged acts were directed to Jamie or in her presence. Defendant also points us to the testimony of Franco that Jamie was very calm and well spoken when she talked to him shortly after the incident and that she did not indicate she ever saw defendant hit her mother or brother or push her mother down or that defendant ever hit or threatened her. He reminds us Jamie testified that she never saw defendant waving a gun around threatening anybody or pointing a gun at anyone. We are not persuaded.
We have already concluded there was sufficient evidence from which the jury could have found defendant pointed a loaded gun at both Thelma and James and that he threatened to either kill them or cause them great bodily harm. Jamie was in James’s bedroom most of the time during which these acts occurred, but we note she told Franco she saw: defendant point a gun at Thelma and James; and James try to restrain defendant and Thelma call 911. Thus, the jury could have found that at least a portion of defendant’s conduct occurred in Jamie’s immediate presence. Moreover, the jury could reasonably have found defendant placed Jamie in danger of being seriously injured or killed if she happened to come out of the bedroom during defendant’s altercations with Thelma and James and defendant’s gun fired. Viewing the evidence in light of the verdict, substantial evidence supports defendant’s conviction of child endangerment in violation section 273a.
C. Unanimity Instruction
Once again defendant contends reversible error in the trial court’s failure to give a unanimity instruction. We disagree.
“A unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. [Citation.]” (Thompson, supra, 36 Cal.App.4th at p. 851.) Section 273a is a statute following within the latter category. (People v. Ewing (1977) 72 Cal.App.3d 714, 717.) No unanimity instruction was required.
V.
Prosecutorial Misconduct
Defendant claims egregious prosecutorial misconduct in the prosecutor’s “caustic attack on the victims[,]” repetitive questions and argument, and misstatements of the law and evidence. Defendant, however, did not object to any of the prosecutor’s questions, comments, or argument and to the extent the prosecutor’s conduct was objectionable, an admonition from the judge would have cured any harm. Accordingly, defendant has forfeited his claims of prosecutorial misconduct. (People v. Huggins (2006) 38 Cal.4th 175, 205.) Defendant has not shown grounds to reverse on his alternate theory of ineffective assistance of counsel. (Id. at pp. 205-206.)
The applicable federal and state standards regarding prosecutorial misconduct are well settled. “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
“A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. [Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 454.) “A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.” (People v. Lopez (2008) 42 Cal.4th 960, 966.) However, “‘[f]ailure to object rarely constitutes constitutionally ineffective legal representation . . . .’” (People v. Huggins, supra, 38 Cal.4th at p. 206, quoting People v. Boyette (2002) 29 Cal.4th 381, 424.) “If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1068–1069.)
A. Prosecutor’s Order Of Calling The Witnesses
Defendant begins by complaining that “[l]acking solid evidence, the prosecutor resorted to ‘bootstrapping’ by calling [defendant’s] family as her first witnesses to elicit ‘inconsistencies’ to justify admitting hearsay police reports.” We see no misconduct. The prosecutor’s choice of the order to present witnesses was logical and necessary to provide the basis for the admission of the family’s prior inconsistent statements in the event they recanted, which they did. (Evid. Code, § 1235.)
B. Caustic And Disparaging Treatment Of The Witnesses
Defendant then contends the prosecutor’s treatment of Thelma, James and Jamie was caustic and disparaging, pointing to both instances of questioning and argument.
Defendant points to the prosecutor’s questioning of Thelma regarding her ability to speak and read English, the prosecutor’s repeated requests for Thelma to listen and answer only the prosecutor’s questions, and the prosecutor’s repeated questioning of Thelma regarding specific words attributed to her by Cromwell or appearing in her application for restraining order.
Defendant complains about the prosecutor’s closing argument that (a) described “the Santos’ family’s efforts to sweep under the rug” what happened on June 18, (b) stated the family’s description of events was “outrageous” and “were stories,” (c) suggested the family was trying to hide behind cultural and language barriers and pretending to be confused by her questions, (d) suggested there were too many inconsistencies in their testimony to list, (e) stated the family was minimizing what happened, (f) falsely claimed James said it was not true that defendant had a gun when he only denied defendant pointed it, (g) used the family’s love and affection against them by suggesting it explained their trial positions, (h) explained why she called the family first and then impeached them with their prior statements, and (i) in rebuttal questioned why the officers would come in and lie.
We disagree with defendant’s characterization of the prosecutor’s questioning. It was relevant and appropriate for the prosecutor to question Thelma regarding her understanding and use of the English language. Moreover, our review of the record suggests Thelma was a difficult witness and while the prosecutor did express some frustration with her, the prosecutor’s behavior did not rise to the level of being either rude and intemperate or deceptive or reprehensible. Certainly an objection and admonition would have cured any harm. The failure to object and request an admonition was, however, a reasonable tactical choice in the hope that the jury would be put off by the prosecutor’s tactics.
With respect to defendant’s complaints about the prosecutor’s argument, we note “‘the prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.’” (People v. Panah (2005) 35 Cal.4th 395, 463, quoting People v. Lewis (1990) 50 Cal.3d 262, 283.) Here the portions of the prosecutor’s argument to which defendant directs our attention fairly fall within such right, with the exception of the misstatement of James’s testimony. Such minor misstatement could have been corrected by a prompt objection and admonition.
C. “Were They Mistaken” Questions
Defendant next contends the prosecutor committed prejudicial misconduct by her repeated questions of Thelma and defendant whether the officers were wrong or mistaken. (People v. Zambrano (2004) 124 Cal.App.4th 228, 238-241.) Not so.
Our Supreme Court has clarified that a question asking a witness whether another witness is lying (or mistaken) must be carefully scrutinized in context. (People v. Chatman (2006) 38 Cal.4th 344, 384.) Such question “should not be permitted when argumentative, or when designed to elicit testimony that is irrelevant or speculative. However, in its discretion, a court may permit such questions if the witness to whom they are addressed has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.” (Id. at p. 384.) The Court explained: a witness “who is a percipient witness to the events at issue has personal knowledge whether other witnesses who describe those events are testifying truthfully and accurately. As a result, he might also be able to provide insight on whether witnesses whose testimony differs from his own are intentionally lying or are merely mistaken. When, as here, the defendant knows the other witnesses well, he might know of reasons those witnesses might lie. Any of this testimony could be relevant to the credibility of both the defendant and the other witnesses. There is no reason to categorically exclude all such questions.” (Id. at p. 382.)
Here the prosecutor questioned Thelma whether or not she told officers certain things reflected in their statements. Thelma denied making the statements the officers attributed to her. The prosecutor then asked her if the officers were mistaken. Similarly, the prosecutor questioned defendant whether the officer responding to his house in 2004 and the officers taking the statements of his family on June 18, 2005, were mistaken concerning items purportedly found in defendant’s home, defendant’s conduct, defendant’s statements, or Thelma’s report of defendant’s conduct and statements. The prosecutor’s questions all related to matters within the personal knowledge of Thelma and defendant to which they could provide competent testimony as to whether the officers were mistaken. There was no misconduct.
D. Misstatement Of The Facts
Defendant next contends the prosecutor committed misconduct by repeatedly claiming in her argument that the gun was loaded. As we have explained, the evidence supported such claim. There was no misconduct.
Finally, defendant points out the prosecutor misstated the evidence in asserting defendant threatened to blow James away when the prosecutor argued defendant held his gun to Thelma’s head. He claims she also mischaracterized the restraining order application as reflecting defendant said he would make Thelma “choke” on lead. While we do not condone the prosecutor’s careless misstatements, we consider them in light of the whole argument to be relatively minor. An objection and admonition would have cured any harm. Moreover, the record reflects defense counsel responded with an argument emphasizing what the evidence before the jury was, a reasonable tactical choice.
E. Cumulative Prejudice
We have considered defendant’s claims of misconduct separately and in aggregate. To the extent the prosecutor’s conduct was objectionable, we conclude there was no cumulative prejudice either excusing defendant’s failure to object or supporting defendant’s claim of ineffective assistance of counsel.
VI.
The Record Does Not Reflect The Trial Court Failed To Exercise Its Discretion to Review The Evidence On Defendant’s Motion For A New Trial
Defendant filed a motion for new trial contending, as relevant on appeal, that the verdict was contrary to the evidence. The prosecution filed written opposition. Both the motion and the opposition noted the trial court’s duty to independently review the evidence on defendant’s motion. (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Robarge (1953) 41 Cal.2d 628, 634; People v. Price (1992) 4 Cal.App.4th 1272, 1275.)
The trial court denied defendant’s motion stating as follows:
“Your second basis is that there was insufficient evidence to support the verdict. I am not going to interject myself in terms of what I feel this evidence was. I think there was more than sufficient bases for the jury to have found as they found and to have ruled and adjudged [defendant] guilty as they did. It was a question of interpretation and credibility, and the jurors found in favor of the prosecution, and I’m not going to disturb that finding.”
Defendant claims the trial court’s comments reflect it failed to provide the required independent review. Not so. The comments reflect the trial court felt it was unnecessary to detail its view of the evidence because there was “more than” substantial evidence to support the verdicts and it had decided a disturbance of the jury’s interpretation and determination of credibility was not warranted.
VII.
The Trial Court Did Not Fail To Exercise Its Discretion To Treat The “Wobbler” Verdicts Of Assault With A Firearm And Criminal Threats As Misdemeanors
Section 17, subdivision (b)(3), authorizes a trial court in its discretion to reduce felony “wobblers” to misdemeanors at the time of sentencing. (People v. Superior Court (Perez) (1995) 38 Cal.App.4th 347, 355-356.) Assault with a firearm (§ 245, subd. (a)(2)) and making criminal threats (§ 422) are felony wobblers. (See § 17, subd. (b); Robert L. v. Superior Court (2003) 30 Cal.4th 894, 902 & fn. 9.)
At the time of defendant’s judgment and sentencing, defendant did not request the trial court reduce his felony convictions to misdemeanors and the trial court placed defendant on probation for his assault convictions and stayed sentencing on his criminal threat convictions without mentioning section 17, subdivision (b). Defendant now claims the trial court failed to exercise its discretion under section 17, subdivision (b), and asks us to remand for the trial court to consider such a reduction. We decline. Defendant cites no authority requiring a trial court to state on the record its consideration of section 17, subdivision (b). In the absence of any indication to the contrary, we presume the trial court properly performed its duty. (Evid. Code, § 664.)
VIII.
Ineffective Assistance Of Counsel
We have addressed and rejected defendant’s claims of ineffective assistance of counsel in connection with our consideration of his other claims of error.
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.