Filed 12/17/13 P. v. Sheldon CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A133373
v.
OSKAR W. SHELDON,                                                        (San Francisco County
                                                                          Super. Ct. No. 206710)
         Defendant and Appellant.


         Defendant Oskar W. Sheldon appeals from a judgment convicting him of domestic
violence, assault with force likely to produce great bodily injury and false imprisonment.
He contends the court made numerous errors with regard to the admission of evidence,
failed to cure prejudicial prosecutorial misconduct during closing argument and
unconstitutionally reduced the burden of proof by instructing the jury with CALCRIM
No. 852. We reject defendant’s claims of evidentiary and instructional error and find that
any failure by the court to cure the alleged misconduct during closing argument was
harmless. Accordingly, we shall affirm the judgment.
                                   Factual and Procedural Background
         Defendant was charged by indictment with torture (Pen. Code, § 206)(Count I),
domestic violence (Pen. Code, § 273.5, subd. (a))(Count II), assault with force likely to
cause great bodily injury (Pen. Code, § 245, subd. (a)(1))(Count III), and false
imprisonment (Pen. Code, § 236)(Count IV). Allegations of personal infliction of great
bodily injury in the context of domestic violence (Pen. Code, § 12022.7, subd. (e)) were
attached to Counts II-IV.


                                                             1
       A jury trial began on September 9, 2010. On September 13, during jury selection
but out of the presence of the jury, defendant entered guilty pleas to Counts II and III,
leaving Counts I and IV and the enhancements for trial.
       The following evidence was presented at trial:
       In September 2006, defendant met and began a romantic relationship with the
victim. He began renting a room in her home in the same month. In March 2007,
however, the victim asked defendant to move out because she received a notice from the
landlord warning her that she was going to be evicted because defendant’s behavior was
disturbing the neighbors.
       On April 3, 2007, the victim confronted defendant on the telephone about his
failure to move out. After the conversation, the victim went to her parents’ home to spend
the night because defendant sounded angry on the phone and she was afraid of him. She
testified that for a few months he had been accusing her of stealing marijuana from him,
and in March she had been involved in an incident during which he again accused her of
stealing from him and threw her on the bed, put his hands around her neck, and started to
choke and smother her. A friend who was there pulled him away. She ran out of the
house but had not reported the incident to the police because she expected him to move
out in a few days.
       Later in the evening on April 3, the victim returned to her home after defendant
left her a phone message stating that he would remove his items and she did not have to
stay away from her home. Defendant was not at the house when she arrived, but he had
not removed his belongings.
       The victim was awakened by loud pounding on her door around 4:00 a.m. on
April 4. She let defendant and his friend into her home and returned to bed. When
defendant and his friend began making noise outside her bedroom, she feared that the
neighbors would call the police, so she got out of bed and told him to be quiet. When
defendant told her to “shut up,” she said she could not sleep and would have to leave. He
responded, “You can’t go anywhere. My truck is blocking your truck. So you can’t
leave.”


                                              2
       Defendant became increasingly angry and began accusing the victim of stealing
from him again. He began ransacking her home, ripping down paintings and window
shades and throwing everything from the kitchen counter on to the floor. The victim was
shocked and scared by defendant’s behavior. She asked him to stop but he kept yelling,
“Fuck you bitch. Give me my money.” She looked to defendant’s friend for help, but he
said “I’m going outside” and left.
       Defendant kicked the victim in the shins until she fell to the ground. He continued
to kick her after she was on the ground. He dragged her by her legs into the office and
closed the door. He grabbed the victim by her hair and pounded her head into the ground
repeatedly. She pleaded with him to stop, but he put his hands on her throat. Defendant
was on top of her and she could not move. The victim testified that defendant beat her
continuously for an hour. At one point, he picked up her sewing machine and hit her head
with it repeatedly. He was squeezing her throat, and it was hard for her to breathe. She
started to lose consciousness and thought she was dying.
       The victim’s neighbors were awakened by the screaming. They heard banging
sounds and heard a female voice say, “Help me” and “get off me” and heard an angry,
male voice saying, “Shut up. Where’s the money, bitch?” and “Where’s the money,
fucking bitch.” The neighbors called 911. The police arrived at the location less than 30
minutes later.
       San Francisco Police Officer Alan Lamb responded at 4:48 a.m. When he arrived,
he heard a male voice scream, “Give me my money.” He also heard three loud slapping
sounds. When Officer Lamb yelled at the second story window to let him inside the
residence, a man told him to leave.
       When Officer Patrice Scanlan arrived a few minutes later, the other officers were
yelling at a second story window. Officer Scanlan saw the man in the window tell the
officers to leave. The man carried a woman to the window, his arms hooked under her
armpits and her face turned into his body so the officer could not see it. Her body was
limp, and Scanlan did not know if she was unconscious or had been drinking. The man
said, “Look. She’s fine. Go away.” He then dropped the female on the couch. Her head


                                             3
hit the back of the couch when she fell. The female waved at the officers and said, “I’m
fine. Go away.” When Scanlan looked up at the window again, she saw the woman sitting
up, unsupported, as she smoothed her hair. The officers continued to yell for the man to
open the door and eventually, the victim opened the door for the officers. Officer Scanlon
called for an ambulance because she saw that the victim was severely injured. Scanlan
observed that the woman had cuts on her right foot, severe bruising and scratches on her
face and neck, her lip was “busted” and she had blood on her nose. Both eyes were
bloodshot.
       Officers searched the residence but did not locate the man in the house. The
neighbor testified that after the police arrived, he saw a man exit a nearby house, climb
over a neighbor’s fence, and walk toward the beach.
       The emergency room physician who treated the victim on April 4 testified
regarding the victim’s multiple injuries. She had a hematoma around her left eye and
bruising above the right eye. She had bruising on her neck, abrasions on her right elbow,
a hematoma on her right hip, and bruising on her legs. Her left eye was severely swollen.
She had a nondisplaced nasal fracture and a hematoma on the right side of the scalp. She
was in a great deal of pain.~ (12 RT 2510)~ The doctor opined that the victim had
suffered “significant trauma” and that her injuries were caused probably by a blow with a
blunt object with “a significant amount of force.”
       An inspector with the San Francisco Police Department interviewed the victim at
the hospital on April 4. He took pictures of the injuries to her face, arms, and legs. When
he spoke with the victim again the following day she spoke slowly during the questioning
and identified defendant as her attacker.
       Private investigator Don Criswell has known the victim for years. On April 10, he
went to the victim’s home to observe and document the conditions. The living room was
in disarray; the window blinds were lying across the sofa. The kitchen was a mess. Items
were scattered on the floor of the office. Criswell located the sewing machine against the
wall in the office. He saw what he believed was blood splattered on the wall near the
sewing machine and also saw blood on the edge of the sewing machine. Criswell brought


                                             4
the sewing machine to the police approximately five weeks after the assault. The sewing
machine was not inspected for forensic evidence.
       The victim’s primary care physician, Dr. Marilyn Kutscher, examined the victim
on April 6. The victim had multiple scratches and bruises on her face and body. She had
swollen eyeballs and decreased vision in her left eye. She had bleeding behind her ears
suggesting she had suffered a traumatic head injury. Ten days later, the victim still had
swelling behind her eyes, and her neck was still very sore. The victim testified that as a
result of the attack she could not see for a few days and could not walk for six weeks.
For a year after the incident she could not run in the manner to which she was
accustomed.
       Peter Lofgren testified that he went to the victim’s residence with defendant on the
evening of April 3. When he left, defendant and the victim were not arguing. The next
day, defendant called Lofgren to pick him up. Defendant told Lofgren that he and the
victim had argued and that he had to move out of her residence.
       The defense offered doctor Michael Laufer as an expert in injury reconstruction.
Focusing on the injuries to the victim’s head and face, he identified numerous contusions
and abrasions as well as a section of her scalp, approximately three-and-a-half to four
inches long and an inch-and-a-half wide, where her hair was missing. He opined that
some of the contusions were likely caused by impact with a hard, flat surface, while
others were consistent with a non-flat object. He did not believe the sewing machine was
likely to have caused the contusions due to the absence of any lacerations or fractures. He
acknowledged that a sewing machine dropped on the victim’s head from only two feet
above would not be “sufficient to actually fracture the skull” but that he “would expect at
least a laceration of the forehead.”
       The jury found defendant guilty of false imprisonment and found the great bodily
injury allegations true. The court dismissed the torture count after the jury remained
deadlocked on that charge. Defendant was sentenced to a prison term of two years on the
domestic violence count, with a consecutive term of three years for infliction of great



                                             5
bodily injury, for a total sentence of five years. The court stayed the sentences for Counts
III and IV pursuant to Penal Code section 654.
         Defendant’s motion to file a late notice of appeal was granted on October 28,
2011.
                                          Discussion

1.       The court did not err in allowing Officer Scanlon to testify regarding the
         severity of the victim’s injuries.
         Defendant contends the court erred in admitting testimony by Officer Scanlon
regarding the severity of the victim’s injuries, particularly the comparison to injuries she
had observed in other domestic violence or assault cases. Officer Scanlan testified that
she called for an ambulance when she saw the victim’s injuries “[b]ecause the injuries
looked severe to [her].” When asked whether she had a “good memory” of this case she
said “yes” and explained that this incident “stands out because the visible injuries were
really severe and [she did not] normally see someone that injured.” She explained further
that her opinion regarding the severity of the injuries was based “on the other calls [she
had] been on. Reports [she had] taken for domestic violence assaults. Mutual combat
fights. Usually a victim doesn’t have as severe obvious bruising and swelling and cuts . . .
straightaway.” Defendant’s objection to Scanlon’s testimony under Evidence Code1
section 352 was overruled.
         On appeal, defendant argues that the court abused its discretion in refusing to
exclude Officer Scanlon’s testimony under section 352. He argues that her testimony had
little probative value as a lay opinion because her “testimony could not help the jurors to
determine whether [defendant] . . . had inflicted great bodily injury” and was highly
confusing and prejudicial. He argues that “her testimony as an experienced police officer
carried a misleading aura of authority” and “tempted the jurors to conclude that [the
victim’s] ‘severe’ and ‘obvious’ injuries, which seemed unique to a police officer



1
    All statutory references are to the Evidence Code unless otherwise noted.


                                               6
familiar with assault cases, must surely constitute the ‘great bodily injury’ that
[defendant] was charged with having inflicted.” We disagree.
       Lay opinion testimony is admissible if it is based on the witness’s own perceptions
and personal observations and is helpful to understanding the witness’s testimony.
(§ 800.) Scanlon’s testimony that the injuries were severe and obvious was based on her
own observation and perception of the victim’s injuries. Her testimony that she believed
the injuries were severe based on her experience as a police officer clarified and gave
context to her testimony. As noted by the trial court, this testimony was also relevant to
explain both why she immediately called for an ambulance and why she could remember
the victim’s injuries three years after the attack.
       Contrary to defendant’s argument, the probative value of the testimony was not
outweighed by potential undue prejudice. That the opinion was offered by a police officer
does not make its admission unduly prejudicial. Moreover, any potential prejudice was
addressed by the instruction pursuant to CALCRIM No. 226 that the jury “must judge
the testimony of each witness by the same standards, setting aside any bias or prejudice
[they] may have.” The fact that the jurors deliberated for three days, repeatedly asking for
clarification of relevant instructions and asking for read-back of key witness testimony
supports the conclusion that the jury did not merely substitute Scanlon’s opinion
regarding the severity of the injuries for its own determination that the victim suffered
great bodily injury.

2.     The prosecutor’s reference in closing argument to stricken testimony was
       harmless.
       Defendant contends the prosecutor committed misconduct by referring to a
statement made by Dr. Kutscher regarding the severity of the victim’s injuries that had
been stricken and the court failed to cure the misconduct by failing to give an adequate
admonition or cautionary instruction.
       The statement in question was volunteered by Dr. Kutscher on cross-examination
after stating that the victim had not reported to her that she was hit with a sewing
machine: “I would add though that in my 30 years’ experience [the victim] was one of the


                                               7
most beaten up people I’d ever seen . . . .” Following a defense objection, this testimony
was stricken as nonresponsive. In closing argument, however, the prosecutor referred to
the doctor’s statement to emphasize the severity of the injuries. The prosecutor argued,
“[A]s Dr. Kutscher said, this was one of the worst beaten women she’s seen in 30 years
of practice.” Defense counsel objected, pointing out that the statement had been stricken,
but the prosecutor responded that it had not. The court did not rule on the objection but
noted that the jury could request a readback. Later, the jury in fact requested the readback
which confirmed that the statement had been stricken.
       The court instructed the jury pursuant to CALCRIM No. 222 that it must disregard
evidence that was stricken.2 The trial court also instructed the jury that “[n]othing that
the attorneys say is evidence.” While the court’s failure to rule on the objection was
problematic, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Under the circumstances, we must presume that the jury followed the court’s instructions
and disregarded the stricken testimony.

3.     The court did not err in admitting Donald Criswell’s testimony that he saw blood
       spots on the wall of the victim’s home.
       Defendant contends the court erred in admitting Criswell’s testimony about blood
spots he observed at the victim’s house. The Attorney General argues that the court
properly admitted the testimony as that of a percipient witness. We agree.
       Criswell testified, over objection, that while in the victim’s office, he “saw what
appeared to [him] to be flecks of blood on the wall.” He explained, “I’ve seen a great deal
of this in my career and I thought I knew what I was looking at. It appeared to be the
blood spray[ed] or splattered against the wall.” He also saw “traces of what I thought was
blood along the . . . back edge of the sewing machine.” The trial court overruled

2
  CALCRIM No. 222, as given, provides, “During the trial, the attorneys may have
objected to questions or moved to strike answers given by the witnesses. I ruled on the
objections according to the law. If I sustained an objection, you must ignore the question.
If the witness was not permitted to answer, do not guess what the answer might have
been or why I ruled as I did. If I ordered testimony stricken from the record you must
disregard it and must not consider that testimony for any purpose.”


                                              8
defendant’s objection that there was no foundation for Criswell’s testimony. The court
explained that Criswell was not testifying as an expert in blood splatter, but rather as a
lay witness testifying as to what he thought he had seen.
       While expert testimony is frequently used to explain or interpret blood splatter
evidence, expert qualification is not necessary when the witness, as in this case, merely
identifies the substance observed as what appeared to be blood and describes where the
spots were found and what they looked like. “[T]he decisive consideration in determining
the [necessity] of expert opinion evidence is whether the subject of inquiry is one of such
common knowledge that [persons] of ordinary education could reach a conclusion as
intelligently as the witness or whether, on the other hand, the matter is sufficiently
beyond common experience that the opinion of an expert” is required. (People v. Cole
(1956) 47 Cal.2d 99, 103.) “Unfortunately, many violent crimes may require witnesses to
testify that substances they saw in connection with the crime was blood. Technically,
such substances probably cannot be definitively identified as blood without scientific
testing, but courts nevertheless permit lay witnesses to give their opinion that what they
observed appeared to be or was blood. This approach is based on the commonsensical
conclusion that the ordinary person is exposed to blood in the course of their life
experiences and thus is quite capable of giving an opinion that a particular substance was
blood.” (3 Wharton’s Criminal Evidence § 12:12 (15th ed.) footnotes omitted.) The fact
that Criswell’s opinion was based on his experience as a police investigator does not
undermine, and in fact may strengthen, that conclusion, nor does it render his testimony
unduly prejudicial under section 352. The trial court did not abuse its discretion in
admitting Criswell’s testimony.

4.     The trial court properly limited evidence of the victim’s prior “psychotic
       episode.”
       Prior to trial, the defense moved to admit evidence of the victim’s previous
“psychotic or hallucinatory” behavior on the ground that it was relevant to the victim’s
credibility. The documentary evidence provided for the court’s review set forth the
relevant facts: On December 2, 2006, San Francisco police officers found the victim


                                              9
running in the middle of the street trying to hit cars with her hands. She was screaming,
“kill me, kill me.” When one officer approached her, she began to scream obscenities and
nonsensical threats. The officers detained the victim as a danger to herself (Welf. & Inst.
Code § 5150) and brought her to the hospital for a 72-hour detention and mental health
evaluation. The psychiatric reports indicate that the victim was intoxicated when she
arrived at the hospital and that she “has a strong family history of schizophrenia and per
patient she [discontinued] her psychiatric medication and stopped seeing her psychiatrist
3 weeks ago.” According to the reports, the victim believed that the police and doctors
intended to harm her and that she was very powerful and would destroy those who
wanted to hurt her.The court ruled that the defense could cross-examine the victim about
the prior incident, but could not present witnesses to opine on her mental state.
       Consistent with the court’s ruling, defense counsel cross-examined the victim
regarding the December 2006 incident. The victim acknowledged having contact with
police in December 2006 but claimed that she could not remember any of the details of
the incident. She testified that she believes she was given a “spiked” drink at a concert
that caused her to hallucinate. She did not recall telling doctors that she stopped taking
her “mental health medications” and denied that she was taking any such medications.
She explained that her mental health has always been very good and that the only
prescription medication she takes is for a learning disability.
       After the victim’s testimony, defense counsel renewed his request that a
psychiatrist be allowed to testify regarding the December 2006 incident. The court
denied the motion, citing relevance and section 352. The court explained that based on
the court’s review of the psychiatric records there is “no evidence that would tie that
incident to this incident” and that presentation of live testimony on the prior incident
would be irrelevant and time consuming.
       Defendant contends that the court abused its discretion in excluding this
testimony. He argues that “[e]xclusion of this evidence permitted [the victim] to testify as
if she were competent and credible and thereby deprived [defendant] of his state and
federal constitutional right to due process.”


                                                10
       “[M]ental illness or emotional instability of a witness can be relevant on the issue
of credibility, and a witness may be cross-examined on that subject, if such illness affects
the witness’s ability to perceive . . . .” (People v. Gurule (2002) 28 Cal.4th 557, 591–
592.) As set forth above, the defense cross-examined the witness extensively regarding
the December incident. She acknowledged hallucinating on the night in question but
denied any history of mental illness. As noted by the trial court, the record does not
contain any evidence or suggestion that the witness suffers from an ongoing mental
illness or has a history of hallucinations apart from the December incident. The trial court
reasonably concluded that further testimony regarding the incident by one of the treating
psychiatrists would be cumulative and unnecessarily time consuming. Accordingly, the
court did not abuse its discretion in excluding the additional requested testimony.
5.     The court did not err by instructing the jury with CALCRIM No. 852.
       Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s
disposition to commit such acts. (§ 1101.) However, the Legislature has created
exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence
(§ 1109). The jury was instructed on the application of section 1109 as follows: “The
People presented evidence defendant committed domestic violence that was not charged
in this case, specifically assaulting [the victim] on [sic] March 2007. . . .[¶] . . .You may
consider this evidence only if the People have proved by a preponderance of the evidence
the defendant in fact committed the uncharged domestic violence. [¶] Proof by a
preponderance of the evidence is a different burden of proof from proof beyond a
reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude
that it is more likely than not that the fact is true. If the People have not met this burden
of proof, you must disregard this evidence entirely. If you decide the defendant
committed the uncharged domestic violence, you may but are not required to conclude
from any evidence the defendant was disposed and inclined to commit domestic violence
and based on that decision, also conclude defendant was likely to commit and did commit
torture and physical imprisonment as charged here. [¶] If you conclude defendant
committed the uncharged domestic violence, that conclusion is only one factor to


                                              11
consider along with all the other evidence. It is not sufficient by itself to prove the
defendant is guilty of either charge. The People must still prove each charge and
allegation beyond a reasonable doubt. Do not consider this evidence for any other
purpose except for the limited purpose stated in this instruction . . . .”Defendant contends
that CALCRIM No. 852 as given in this case violated his due process rights because it
unconstitutionally altered the burden of proof. The Attorney General correctly notes that
the arguments advanced by defendant have been rejected on several occasions. (People v.
Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford) [rejecting due process challenge to
CALJIC No. 2.50.01 which explains the application of Evidence Code section 1108].;
People v. Reyes (2008) 160 Cal.App.4th 246, 250–253 (Reyes) [finding that there is no
material difference between the instruction found constitutional in Reliford and
CALCRIM No. 852]; People v. Johnson (2008) 164 Cal.App.4th 731, 738–740 (Johnson)
[same].)
       Defendant argues that Reliford is not controlling because the instruction in that
case provided “If you find that the defendant committed a prior sexual offense . . ., you
may, but are not required to, infer that the defendant had a disposition to commit the
same or similar type sexual offenses,” (People v. Reliford, supra, 29 Cal.4th at p. 1012,
italics added) whereas CALCRIM No. 852 provides, “If you decide the defendant
committed the uncharged domestic violence, you may but are not required to conclude
from any evidence that the defendant was disposed to or inclined to commit domestic
violence and . . . torture and physical imprisonment as charged here.” (Italics added.) He
argues that there is a significant difference between the words “infer” and “conclude”:
“To ‘infer’ designates an analytic step that is one part of a longer process. To ‘conclude’
refers to the final step in that process. Once the jury has arrived at a conclusion, no
further reasoning is required: the process is complete. The use of ‘conclude’ thus makes
the following sentences, which advise the jury that it still needs to find each offense
proved beyond a reasonable doubt, directly contradictory. If the jury’s analytic process
has reached a ‘conclusion,’ no further analysis is required. Because that ‘conclusion’
could have been reached by a preponderance of the evidence rather than proof beyond a


                                              12
reasonable doubt, the instruction as given does not pass constitutional muster.” He
suggests that People v. Johnson and People v. Reyes are not persuasive insofar as they
fail to “perceive or address the difference between ‘infer’ and ‘conclude.’ ”
       We do not find the distinction persuasive. “Conclude” and “infer” are virtually
synonomous. One definition of “infer” is “to form (an opinion) from evidence : to reach
(a conclusion) based on known facts.” A definition of “conclude” is “to reach as a
logically necessary end by reasoning : infer on the basis of evidence.”
(http://www.merriam-webster.com.) Given the common definition of these words, there
is no material difference between the instruction upheld in Reliford and CALCRIM No.
852. Moreover, in light of the clear direction in the final paragraph of the instruction that
the jury’s “conclusion” that defendant committed the uncharged domestic violence “is
not sufficient by itself to prove the defendant is guilty of either charge” and that “[t]he
People must still prove each charge and allegation beyond a reasonable doubt,” a jury
would not likely be misled by this instruction. (People v. Ramos (2008) 163 Cal.App.4th
1082, 1088 [“ ‘ “In determining whether error has been committed in giving or not giving
jury instructions, we must consider the instructions as a whole . . . [and] assume that the
jurors are intelligent persons and capable of understanding and correlating all jury
instructions which are given” ’ ”].)

6.     Defense counsel did not render ineffective assistance by failing to object to the
       verdict form.
       The verdict form for the great bodily injury enhancement allegation provided as
follows: “The Defendant has previously pleaded guilty to the crime of Assault With
Force Likely to cause Great Bodily Injury, in violation of Section 245(a)(1) of the
California Penal Code. [¶] We the Jury in the above-entitled cause, find the allegation
that the Defendant, Oskar Sheldon, personally inflicted great bodily injury during the
commission of the offense, within the meaning of Section 12022.7(e) of the California
Penal Code.” Although defense counsel initially indicated an intent to object to the
verdict form, when given an opportunity to place his objection on the record, he only
made a record of his objections to the instructions and failed to mention the verdict form.


                                              13
       Defendant contends his attorney’s failure to object constituted ineffective
assistance because the verdict form misled the jury and shifted the burden of proof. He
argues, “the verdict form had the effect of a constitutionally defective instruction. It did
not simply ask the jurors whether or not [defendant] had inflicted great bodily injury.
Instead, it first advised them that he had already entered a guilty plea to the charge of
assault with force that was likely to cause such injury. This preface was irrelevant and
overly suggestive. It allowed the jurors to reason that only if something unlikely had
occurred — only if force that was likely to cause great bodily injury did not actually
cause it — could they choose ‘not true’ on the verdict form. In this way, the verdict form
shifted the burden of proof from the prosecution to the defense.”
       The standard for establishing ineffective assistance of counsel is well settled. The
“ ‘defendant bears the burden of showing, first, that counsel’s performance was deficient,
falling below an objective standard of reasonableness under prevailing professional
norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably
probable that the verdict would have been more favorable to him.’ ” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984)
466 U.S. 668, 687, 694.)
       Without considering whether the failure to object was a tactical decision or even a
deficiency, we reject defendant’s claim based on the absence of any prejudice.
(Strickland v. Washington, supra, 466 U.S. at p. 697 [“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will
often be so, that course should be followed”].)
       In this case, it is not reasonably probable that the verdict would have been more
favorable had the verdict form been phrased differently. The jury was clearly instructed
that on counts 2, 3, and 4, it must “decide whether the people have proved the additional
allegation the defendant personally inflicted great bodily injury on [the victim] during the
commission of that crime.” (Italics added.) “Great bodily injury” was defined for the jury
as “significant and substantial physical injury. It is an injury that is greater than minor or
moderate.” During his closing argument, defense counsel advised the jury that defendant


                                              14
had taken responsibility for certain conduct that occurred on April 4, including domestic
violence and an assault by means of force likely to produce great bodily injury, but he
attempted to draw a distinction between the victim’s “swelling and bruising” and
“someone who has suffered extensive, extreme great bodily injury as a result of domestic
violence.” He argued, “The charge that [defendant] pled to in terms of the assault, great
bodily injury with force likely to produce great bodily injury. Not force that produced
great bodily injury, not force that’s demonstrated to have produced great bodily injury but
force likely. You sitting as the jury . . . are the ones that determine whether or not the
bruising and swelling, discoloration and discomfort and taking of some pain pills is equal
to great bodily injury.” Thus, counsel dispelled any potential confusion or
misunderstanding by the jury regarding the effect of defendant’s guilty plea on the
enhancement allegation. Finally, the jury’s extensive deliberations on this issue strongly
suggests that the jury did not merely rely on the guilty plea to presume the injury actually
inflicted met the definition of great bodily injury.
7.     There was no cumulative error.
       Having found no prejudicial error, we reject defendant’s argument that the
cumulative effect of the alleged errors he identifies require reversal of the judgment.
(People v. Wallace (2008) 44 Cal.4th 1032, 1099.)




                                              15
                                 Disposition
     The judgment is affirmed.



                                          _________________________
                                          Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




                                     16
