Opinion
B223815
08-17-2011
THE PEOPLE, Plaintiff and Respondent, v. ARTURO ACRISTIAN, Defendant and Appellant.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA348930)
APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed as modified.
Mark D. Lenenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Blythe J. Leszkay, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Arturo Acristian appeals from his conviction of first degree murder.He contends there were various instructional errors, the prosecutor committed prejudicial misconduct, and defense counsel was ineffective for failing to object to the misconduct. We modify the judgment to reflect the proper presentence custody credits and affirm as modified.
Defendant was charged with first degree murder; firearm enhancements were charged under Penal Code section 12022.53, subdivisions (b), (c) and (d). A jury convicted him as charged, including the enhancements alleged under subdivisions (c) and (d) of section 12022.53. Defendant was sentenced to 50 years to life in prison, comprised of 25 years to life for murder, plus a consecutive 25 years to life for the firearm use. He timely appealed.
All undesignated statutory references are to the Penal Code.
Defendant also contends and the People concede that defendant was improperly denied any presentence custody credits. We amend the abstract of judgment to reflect the 514 days of presentence custody credits to which both sides agree defendant is entitled.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. People's Case
Viewed in accordance with the usual rules on appeal (People v. Zamudio (2008) 43 Cal.4th 327, 357), the evidence established that at about 12:30 a.m. on November 9, 2008, 22-year-old Raymond Davis was standing on the sidewalk in front of the Safari, a bar on Vermont near 66th Street, when he was fatally shot in the abdomen. A single bullet was recovered from the body. The medical examiner found just one entrance wound and no exit wound. Davis was six feet two inches tall and weighed 222 pounds. According to a toxicology report, he was under the influence of high levels of ecstasy and methamphetamine at the time of his death. At high doses, ecstasy can cause irritability and aggressive behavior. If a person was naturally aggressive, these drugs could amplify that behavior.
Jose Garcia was working at the Safari bar the night of the killing. He was familiar with Davis from the neighborhood. That night, Garcia saw Davis inside the club with a companion. At about 11:30 p.m., Garcia observed defendant enter the club alone. About an hour later, Garcia was sitting outside, next to the door to the bar when he saw Davis and his companion leave the bar; Davis appeared to be unarmed. A moment after Davis walked to the curb, defendant appeared in the door and said, "I'm going to shoot you, Homes. I'm going to shoot you." Defendant then pointed a revolver at Davis and fired once. Davis fell into the street. Davis's companion ran away and defendant ran back into the Safari. When defendant came out several seconds later, Davis was on his knees in the street, trying to get up. Defendant fired toward Davis a second time, then ran to a car and drove away. Garcia viewed a video recording taken by security cameras in the bar that night. It accurately reflected what he saw inside the bar that night, but there were no cameras outside the bar, where the shooting occurred.
The police officers who responded to the call searched the area outside and inside the Safari, but did not find any guns, knives, screwdriver or other type of deadly weapon. The customers still inside the Safari when the police arrived were allowed out only after each customer was interviewed and searched for weapons.
The next day, the police went to a house to arrest defendant. They searched the entire house, but did not find defendant. Then, one officer noticed some white particles on the floor of the laundry room. Looking up, the officer saw an access door to the attic. The police opened the attic door, flooded the area with light and used mirrors to see into the space without having to expose themselves. There, they saw defendant, who eventually came down.
B. Defense Case
Defendant testified that he was sitting next to Davis at the bar in the Safari that night. Defendant ordered a $4 bottle of water which he paid for with a $100 bill. When the bartender put defendant's $96 in change on the bar, Davis grabbed the money. Defendant told Davis not to go anywhere with defendant's money, but Davis ignored him and continued walking toward the door. Halfway to the door, Davis turned around, lifted up his shirt and said, "What are you going to do? I have a gun. It's my neighborhood." Although defendant did not see a gun, he believed Davis's claim. Undeterred, defendant followed Davis toward the door and when he and Davis were in the vestibule defendant tried to grab his money out of Davis's hand. Davis pushed defendant away; only the fact that the vestibule was a small space kept defendant from falling down. Concerned that things were "turning ugly," defendant reached his hand into a pocket in which he had a loaded gun. He urged Davis to calm down and to return his money. Davis and his companion responded by hitting defendant. Davis said to his companion, "Hit him. Hit him." Defendant could feel the blows but did not know who was hitting him. Thinking they wanted to beat him to death, defendant said, "Stop. I'm going to shoot you." When Davis and his companion did not stop hitting him, defendant took the gun out of his pocket to defend himself; he did not intend to shoot anyone. Defendant heard Davis say to his companion, "Shoot him. Shoot him." Defendant fired once so that the two men would stop hitting him, he did not aim at anyone. Unaware that the shot he fired had hit anyone, but frightened at the thought that he had fired the gun, defendant went back into the Safari, then came out again and drove away in his car. Defendant denied firing toward Davis a second time. Defendant dumped the gun on his way home. When the police came to his home, defendant hid in the attic because he was afraid.
Defendant explained that he did not usually carry a gun, but he had received this gun as partial payment for some work he did as a mechanic. He was carrying it with him because he did not think it was safe to leave a loaded handgun at his home, where there were children present. It did not occur to him to leave it in car.
C. Rebuttal
After defendant was arrested, Detective Refugio Garza interviewed him about the shooting. Defendant referred Garza to the video. Defendant told Garza the victim tried to take his money, but did not use a weapon. Defendant never mentioned that the victim or anyone else used any physical force. Defendant said he was not sure how many times he shot at the victim.
II. DISCUSSION
A. Instructional Errors
Defendant contends the trial court prejudicially erred by (1) not sua sponte instructing on involuntary manslaughter as a lesser included offense of murder, (2) giving CALCRIM Nos. 3471 and 3472 on the limitations of self-defense in the absence of evidence to warrant those instructions, and (3) giving a modified version of CALCRIM No. 372 on flight. We find no merit in any of these contentions.
1. Involuntary Manslaughter
Defendant contends the trial court had a sua sponte duty to instruct on involuntary manslaughter as a lesser included offense of murder. As we understand his argument, it is that the instruction was required based on evidence that defendant fired the gun without intent to kill and without conscious disregard of the risk to human life. During a discussion of jury instructions, the court stated that it would instruct on voluntary manslaughter, but not involuntary manslaughter. Defense counsel did not object. We find no error.
Defendant does not specify what instruction should have been given. Presumably, he is referring to CALCRIM No. 580 which reads in part: "When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. [¶] The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter."
Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Manslaughter is the unlawful killing of a human being without malice. (§ 192.) A killing is involuntary manslaughter if it occurs in the commission of any one of three types of acts: a misdemeanor, a lawful act, or a noninherently dangerous felony. (People v. Butler (2010) 187 Cal.App.4th 998, 1006 (Butler);see also § 192, subd. (b); People v. Abilez (2007) 41 Cal.4th 472, 515 (Abilez); People v. Parras (2007) 152 Cal.App.4th 219, 227 (Parras).) "[F]or all three types of predicate acts the required mens rea is criminal negligence." (Butler, supra, at p. 1006.)
Because involuntary manslaughter is a lesser included offense of murder, the trial court has a sua sponte duty to instruct on involuntary manslaughter if there is substantial evidence that the killing occurred in the commission of any one of the three predicate acts. (Butler, supra, 187 Cal.App.4th at p. 1006; see also Abilez, supra, 41 Cal.4th at p. 516; Parras, supra, 152 Cal.App.4th at p. 228.) A failure to instruct on a lesser included offense is reviewed under the People v. Watson (1956) 46 Cal.2d 818, 836 standard, which requires reversal only if the entire record establishes a reasonable probability that the error affected the outcome of the trial. (Parras, supra, at p. 228; see also Cal. Const., art. VI, § 13.)
Parras, supra, offers some guidance on the question of whether there was evidence to warrant involuntary manslaughter instructions here. In Parras, a woman's badly beaten body was found in her apartment on September 18, 1989, amid obvious signs of a struggle. The cause of death was a brain hemorrhage which was the result of a head wound apparently inflicted with a portable radio; death had taken several hours. Arrested 13 years later, the defendant admitted to a detective that he was having an affair with the victim and that he last saw her at her apartment in September 1989. The defendant explained that he was an alcoholic, and had been drinking that day. Mad at the victim for threatening to expose their affair to his wife, the defendant hit her two or three times in the face; she was still alive when he left. At trial, the defendant testified that he did not recall hitting the victim with anything other than his hand, or hitting her in any life-threatening way; he did not intend for her to die. The jury was instructed on various theories of involuntary manslaughter, but not on the theory that the killing occurred during the commission of a misdemeanor. (Parras, supra, 152 Cal.App.4th at p. 227.) The appellate court affirmed, reasoning that, if the homicide occurred during the commission of a crime, the undisputed evidence of the victim's injuries showed that the crime was a felony assault with a deadly weapon or by means of force likely to produce great bodily injury, not a simple battery. (Id. at p. 228.)
Here, defendant testified that he fired the gun to stop the men from hitting him but did not aim the gun at anyone and did not intend to shoot anyone. On appeal, defendant asserts that "[shooting] randomly in the presence of another person or persons, but not believing it was at anyone, supports a claim that appellant acted with criminal negligence for appellant did not realize he was shooting at anyone and did not realize he hit anyone." Defendant is incorrect because "shooting randomly in the presence of another person or persons" is not a predicate act for involuntary manslaughter; it is not a lawful act, a misdemeanor, or a noninherently dangerous felony. On the contrary, it is an inherently dangerous felony. (People v. Clem (2000) 78 Cal.App.4th 346 (Clem)[although grossly negligent discharge of a firearm in violation of § 246.3 may be sentenced as a misdemeanor, it is nevertheless an inherently dangerous felony].) A killing that occurs during the commission of an inherently dangerous felony cannot be involuntary manslaughter.
Defendant's reliance on People v. Glenn (1991) 229 Cal.App.3d 1461 (disapproved on another point in People v. Blakeley (2000) 23 Cal.4th 82, 91), for a contrary result is misplaced. In that case, the defendant and the victim were waiting together to purchase some cocaine; both were armed - the victim with a gun and the defendant with a butcher knife. After an argument over money, the defendant walked away carrying the knife in his hand. When the victim came up to the defendant from behind, the defendant thought he was being attacked. He turned around and cut the victim. The defendant testified that he did not intend to stab the victim with the knife which was in his hand only because it did not fit in his pocket. The appellate court held that this evidence required an involuntary manslaughter instruction based on accident. (Glenn, at p. 1467.) In other words, there was evidence from which it could be inferred that the killing occurred during the commission of a lawful act - carrying a knife - but in a criminally negligent manner which resulted in an accidental stabbing. Here, there is no evidence that defendant accidentally fired the gun. Instead, the theory of defense was that he intentionally fired to scare off his attackers, but unintentionally hit Davis. Under Clem, supra, 78 Cal.App.4th 346, "shooting randomly in the presence of another person or persons" is an inherently dangerous felony, not a misdemeanor or a lawful act. Thus, the evidence did not support instruction on involuntary manslaughter.
2. CALCRIM No. 3471 - Mutual Combat
Defendant did not object to CALCRIM No. 3471 which, as given, reads: "A person who engages in mutual combat or who is the initial aggressor has a right to self-defense only if: [¶] One, he actually and in good faith tries to stop fighting, and; [¶] Two, he indicates by word or by conduct to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting; and; [¶] Three, he gives his opponent a chance to stop fighting. [¶] If a person meets these requirements he then has a right to self-defense if the opponent continues to fight. [¶] A fight is a mutual combat, one that began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." On appeal, defendant concedes that the instruction is a correct statement of the law, but argues reversal is required because there was no predicate evidence of "mutual combat." We find no error.
It is error to give an instruction correct as to the law but irrelevant or inapplicable to the facts. (People v. Cross (2008) 45 Cal.4th 58, 67.) But any such error is forfeited by a failure to timely object. (People v. Frandsen (2011) 196 Cal.App.4th 266, 278 (Frandsen)[error in giving CALCRIM No. 3472 forfeited by failure to object].) By failing to timely object, defendant has forfeited any claim of error in giving CALCRIM No. 3471. Even assuming defendant did not forfeit the claim, we find it without merit.
CALCRIM No. 3471 is the instructional manifestation of section 197, defining justifiable homicide. (See People v. Johnson (2009) 180 Cal.App.4th 702, 712 [noting that CALJIC No. 5.56 concerns legal principles similar to CALCRIM No. 3471]; People v. Quach (2004) 116 Cal.App.4th 294, 301 [discussing CALJIC No. 5.56].) Under section 197, subdivision 3, a homicide is justifiable when committed in self-defense unless the accused was the assailant or engaged in "mutual combat," in which case it is not justifiable homicide unless the accused "really and in good faith . . . endeavored to decline any further struggle before the homicide was committed." CALCRIM No. 3471 "charges a jury to make a preliminary determination of whether the defendant has the right to use force to defend himself when the defendant and the victim engaged in mutual combat, or when the defendant was the initial aggressor." (Johnson, supra, at p. 711, italics omitted.) In the context of section 197, subdivision (3) and CALCRIM No. 3471, " 'mutual combat' means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities." (People v. Ross (2007) 155 Cal.App.4th 1033, 1045 (Ross), italics omitted.) The agreement to fight may be express or implied, but there must be evidence that both combatants "intended to fight before the claimed occasion for self-defense arose." (Id. at p. 1047, italics omitted.)
In part, section 197 provides that a homicide is justifiable when the killing is committed "1. When resisting any attempt . . . to commit a felony, or to do some great bodily injury upon any person; or, [¶] 2. When committed in defense of . . . property . . . against one who manifestly intends or endeavors, by violence or surprise, to commit a felony . . . ; or, [¶] 3. When committed in the lawful defense of such person . . . when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed."
Here, that both parties formed the intent to engage in a mutual fight before the first blow - whether the first blow was defendant's act of grabbing the money or Davis's act of pushing defendant away - can be inferred from defendant's testimony that, as Davis was walking toward the door with defendant's money, he turned around, lifted up his shirt and said to defendant, "What are you going to do? I have a gun. It's my neighborhood." Defendant testified that he believed Davis's claim that he had a gun but nevertheless approached him and tried to grab the money out of Davis's hand. A reasonable inference from this exchange is that by word and gesture Davis communicated to defendant a challenge to fight for the money and that defendant accepted the challenge when he approached Davis rather than reporting the theft to the police. Under these circumstances, it was not error to give CALCRIM No. 3471.
Ross, supra, on which defendant relies is distinguishable. In Ross, the defendant and victim engaged in a hostile verbal exchange at the conclusion of which the victim slapped the defendant and the defendant responded with a blow that fractured the victim's cheekbone. (Ross, supra, 155 Cal.App.4th at p. 1050.) The appellate court found insufficient evidence of mutual combat observing, "Viewed most favorably to the prosecution, the evidence showed an exchange of belligerent comments culminating in an impulsive and unexpected blow by [the victim] to which defendant responded with a combination, flurry, or barrage of blows. There is simply not enough evidence for a reasonable juror to conclude beyond a reasonable doubt that when these blows were exchanged, both parties had formed the intent to engage in a fight." (Id. at p. 1052.) Here, there were more than belligerent comments and an impulsive and unexpected blow by the victim. There was a challenge to fight and an acceptance of that challenge.
Finally, even assuming it was error to give CALCRIM No. 3471, the error was harmless inasmuch as the jury was instructed to disregard any instructions that did not apply to the facts as they found them. (Frandsen, supra, 196 Cal.App.4th at p. 278, citing People v. Olguin (1994) 31 Cal.App.4th 1355, 1381 [error in instructing on principles found in CALCRIM No. 3472 was harmless where it was just one of a dozen self-defense instructions, some of which were mutually exclusive and the jurors were instructed to disregard any instruction which applied to facts determined by them not to exist].)
The jury was instructed: "Some of these instructions may not apply depending on your findings about the facts of this case. Do not assume that just because I give a particular instruction that I'm suggesting anything about the facts. [¶] After you have decided what the facts are, follow the instructions that do apply to those facts as you find them."
3. CALCRIM No. 3472 - Contrived Self-defense
The trial court gave, without defense objection, CALCRIM No. 3472, which reads: "A person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse to use force." On appeal, defendant contends it was reversible error to so instruct because there was no evidence that he provoked the confrontation with Davis with the intent to create an excuse to use force. As with CALCRIM No. 3471, by failing to timely object to this instruction, defendant has forfeited the claim of error on appeal. (Frandsen, supra, 196 Cal.App.4th at p. 278.) Moreover, even if not forfeited, and assuming the instruction was irrelevant to the evidence, the error does not warrant reversal because we presume the jury disregarded an instruction not supported by the evidence. (Ibid.)
4. CALCRIM No. 372 - Flight
The standard CALCRIM No. 372 reads: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself."
Defendant contends the trial court prejudicially erred in giving, even without defense objection, the following modified version of CALCRIM No. 372: "If the defendant fled immediately after the crime was committed or tried to avoid arrest by hiding from the police, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled or did other conduct it is up to you to decide the meaning and importance of that conduct. [¶] However, evidence that the defendant fled or other conduct cannot prove guilt by itself." (Italics added.) He argues that the instruction was flawed in two respects. First, the addition of the italicized language made the instruction an argumentative pinpoint instruction; and second, it omitted the principle an inference of guilt requires a finding that the defendant fled after being accused of the specific crime for which he is on trial as opposed to merely hiding from the police to avoid arrest for an unspecified crime. We disagree.
As we have already discussed, by failing to timely object to this instruction, defendant has forfeited the claim of error on appeal. (Frandsen, supra, 196 Cal.App.4th at p. 278.) Even if the claim was not waived, we find it without merit.
a. Added Language
The reference to trying to avoid arrest by hiding from the police did not make the instruction argumentative. People v. Randle (1992) 8 Cal.App.4th 1023 (Randle)is instructive. In that case, there was evidence that the defendant had a white buttoned shirt after his arrest, but when he was booked the white shirt had been removed. And, there was evidence that during the pendency of the case appellant's hairstyle had changed. The trial court gave CALJIC No. 2.06, but modified it by adding the following italicized language: "If you find that a defendant attempted to suppress evidence against himself in any manner, such as by change of appearance, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration." (Randle, at p. 1036, fn. 3, italics added.) On appeal, the defendant complained that the modification caused the instruction to be an improper pinpoint instruction. The appellate court rejected the contention, reasoning, "The instruction at issue here does not focus on specific evidence. A contrary conclusion might have been reached if the trial court had specifically directed the jury's attention to the change of hairstyle or the missing shirt. No such pinpointing was present here. Instead, the trial court only tailored the instruction to the generic type of consciousness of guilt disclosed by the evidence." (Id. at pp. 1036-1037.)
Here, as in Randle, supra, the modified instruction did not focus on specific evidence; the trial court simply tailored the instruction to the generic type of consciousness of guilt disclosed by the evidence. The instruction did not focus the jury on specific evidence in the case such as opening the attic crawl space door or hiding in the attic.
b. Omitted Language
We also find no merit in defendant's argument that the instruction was flawed because it did not require a finding that the defendant hid after he was accused of killing Davis. Evidence that the accused tried to hide after the crime is relevant to show consciousness of guilt. (People v. Vu (2006) 143 Cal.App.4th 1009, 1030.) If there is evidence identifying the person who fled as the defendant, if such evidence is relied upon as tending to show guilt, and if it can be inferred that the defendant acted to avoid being observed or arrested, a flight instruction is proper. (Abilez, supra, 41 Cal.4th at pp. 521-522.) The defendant's awareness of criminal charges against him is not a prerequisite for the instruction.(Id. at p. 523.)
B. Prosecutorial Misconduct
Although he did not object at the time, on appeal defendant challenges as prosecutorial misconduct the following three statements made by the prosecutor during closing argument:
• "I believe, Ladies and Gentlemen, as I indicated what I'm telling you is not evidence. It's what the testimony is and what - and what you recall, but I believe he said that he paid a hundred dollars and he got $90 in change, a $10 glass of water? [¶] . . . [H]is credibility is seriously at - in question."
• "I suggest to you that self-defense is completely inapplicable and has not been proven by the defense witnesses, that I believe they were not believable or credible but - when they said that he was so in fear for his life that the defendant had to shoot and kill Mr. Davis."
• "And the second voluntary manslaughter that can reduce a murder from murder to voluntary manslaughter, if you have an honest but unreasonable belief that you need to use deadly force to defend yourself. [¶] But, again, that has not - that has not been proven here. The victim - Mr. Davis presented no threat to him."
Defense counsel did not object to any of the challenged statements in the trial court. As such, the claim of prosecutorial conduct has been forfeited. (People v. Lopez (2008) 42 Cal.4th 960, 966; People v. Morales (2001) 25 Cal.4th 34, 43-44; People v. Benmore (2000) 22 Cal.4th 809, 846.) Even if this were not the case, we find none of these statements rise to the level of prosecutorial misconduct.
It is misconduct for a prosecutor to make arguments that appeal to the jury's passion or prejudice, to introduce inadmissible evidence through the backdoor of impermissible questions, to misstate the law, or to impugn the credibility of defense counsel. (People v. Leonard (2007) 40 Cal.4th 1370, 1406; People v. Hill (1998) 17 Cal.4th 800, 829, 832; People v. Hudson (1981) 126 Cal.App.3d 733, 735-740.) In short, it is misconduct to use deceptive or reprehensible methods to persuade the court or the jury. (People v. Navarette (2003) 30 Cal.4th 458, 506.) When the misconduct claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Morales, supra, 25 Cal.4th at p. 44.) We will reverse only if a different result was reasonably probable absent the misconduct. (People v. Ochoa (1998) 19 Cal.4th 353, 466.)
Here, none of the challenged statements rise to the level of deceptive or reprehensible methods to persuade the jury, nor is it reasonably likely that the jury applied any of the remarks in an objectionable fashion. Regarding the first statement, the prosecutor was indisputably incorrect when she stated that the defendant testified he purchased a $10 bottle of water - it was a $4 bottle - but the prosecutor advised the jury that her statements were not evidence, that the evidence was the actual testimony. The prosecutor's incorrect recollection does not amount to prosecutorial misconduct.
Regarding the last two statements, defendant complains that they misstated the law by telling the jury that defendant had a burden of proof. Defendant is correct and the prosecutor should have avoided any suggestion that the burden was on defendant to prove self-defense. But given that the prosecutor stated clearly that the burden was on her and correct jury instructions were given on self-defense, we find these misstatements were de minimus and did not rise to the level of misconduct. No reasonable juror would have understood the prosecutor to be contradicting the instructions that clearly set forth the burden of proof.
C. Ineffective Assistance of Counsel
We also find no merit in defendant's argument that he received ineffective assistance of counsel as a result of his trial counsel's failure to object to the prosecutor's statements described above. "A cognizable claim of ineffective assistance of counsel requires a showing 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.' '[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.' To prevail on an ineffective assistance of counsel claim, a defendant must also establish counsel's performance prejudiced his defense. To establish prejudice, a defendant must demonstrate 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (People v. Jones (2009) 178 Cal.App.4th 853, 859-860, citations omitted.) A failure to object rarely constitutes constitutionally ineffective assistance of counsel. (People v. Gray (2005) 37 Cal.4th 168, 209.)
As we have found none of the statements rose to the level of prosecutorial misconduct and defendant has failed to establish a reasonable probability that the result would have been different had counsel timely objected to the challenged statements.
DISPOSITION
The judgment is modified to award defendant 514 days of presentence custody credit. As modified, the judgment is affirmed. The trial court is directed to amend its abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
RUBIN, J. WE CONCUR:
BIGELOW, P. J.
GRIMES, J.