Filed 6/16/14 P. v. Fleming CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F064115
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F10904285)
                   v.

TRAVIS ALEXANDER FLEMING,                                                                OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. James M.
Petrucelli, Judge.
         Timothy E. Warriner, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Kari
Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
       A jury convicted appellant Travis Alexander Fleming of one count of child abuse
(Pen. Code, § 273a, subd. (a))1 with the allegation that he personally inflicted great
bodily injury on the victim (§ 12022.7, subd. (d)). The trial court sentenced Fleming to
an aggregate term of 11 years in state prison.
       On appeal, Fleming contends (1) the prosecutor’s remarks about Fleming’s
demeanor at trial constituted Griffin2 error and violated his Fifth Amendment due process
rights; (2) the prosecutor committed misconduct during closing argument; (3) a mistrial
was warranted based on a prospective juror’s comments during jury selection; (4) the trial
court abused its discretion when it admitted evidence of Fleming’s military experience;
(5) trial counsel was ineffective for failing to subpoena an expert witness; and (6) the trial
court abused its discretion when it denied Fleming’s posttrial Marsden3 motion. We
affirm the judgment.
                    FACTUAL AND PROCEDURAL SUMMARY
       Prosecution Evidence
       Fleming and K.S. (mother) have a baby boy, B., born in January 2010.4 Sometime
in January, prior to B.’s birth, Fleming was upset and punched a hole in the bedroom
door. Mother could not remember what triggered that behavior, although she admitted
she and Fleming often raised their voices, argued, and shouted at each other. She never
saw Fleming hit, shake, or inappropriately touch B. to calm him down, and she claimed
Fleming never abused her or B.
       On February 14, Valentine’s Day, Fleming gave mother a letter which read, in
part, “You have changed me so much since I met you that even my parents have seen it

1      All further statutory references are to the Penal Code unless otherwise stated.
2      Griffin v. California (1965) 380 U.S. 609 (Griffin).
3      People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
4      All further dates are to the year 2010 unless otherwise stated.



                                              2.
and hold you responsible. And thats [sic] why as soon as I can go see a doctor, I will get
the extra help I need to give you the greatest gift I could ever give you. The real me!” At
trial, mother explained that Fleming planned to see a therapist because he had “a problem
with trusting.”
       Mother’s sister, Kellie, who lived in an apartment downstairs, came over for
breakfast on the morning of February 14 and watched a movie and played with B.
Neither mother nor Kellie noticed any unusual or lethargic behavior on B.’s part, and his
energy seemed normal.
       In the early afternoon after Kellie left, mother and Fleming took B. for a walk to a
nearby gas station to buy some rum and Coke. When they returned home, mother fed B.
and put him down for a nap. She and Fleming went outside for a drink on the patio; their
neighbor James Bartram was outside and they talked to him.
       Approximately 45 minutes later, B. woke up crying and Fleming went into the
bedroom to change the baby’s diaper. Mother did not hear Fleming make any aggressive
or angry comments while he was gone.
       About 10 to 15 minutes later, Fleming went back inside to check on B. because he
and mother had not heard any noises on the baby monitor. Fleming called for mother,
and she saw that Fleming had moved B. onto the bed and was clapping B.’s feet together
and touching his face because he was not breathing. Fleming took B. into the living
room, placed him on the floor and began CPR; mother called 911. Kellie arrived and
Fleming told her that B. threw up, choked and stopped breathing.
       An emergency medical technician (EMT) who responded to the call determined B.
was having difficulty breathing. The EMT performed a “head-tilt chin lift” to open the
airway and used a “bag valve mask” to get oxygen into B.’s lungs. The EMT observed
that B. appeared generally healthy aside from a fresh “little” bruise on his left cheek. No
other signs of injury were noted on B.’s arms, chest, or head. B. was transported by
ambulance to the regional medical center.

                                             3.
       Emergency medical resident Dr. Fernando Macias treated B. in the emergency
room. He found no fractures but observed a bruise on B.’s left cheek. A CT scan
revealed evidence of blood in and around B.’s brain. B. was transferred to Valley
Children’s Hospital (VCH).
       Dr. Gary Magram, a pediatric neurosurgeon, saw B. while he was at VCH.
According to Magram, the CT image of February 14 revealed blood on the top left
portion of B.’s head, a bruise on the bottom right side of the brain, and an area of
abnormality on the left frontal lobe. Magram noted no skull fracture and surgery was not
required.
       Dr. John Kinnison, a pediatric hospitalist, was brought in on B.’s case while B.
was at VCH. Due to the presence of blood in the first CT scan, B. was referred for a
followup MRI. The CT and MRI showed three significant findings:
encephalomalacic/leukomalacic changes on both sides of the lower frontal lobe, subdural
effusions between the skull and the brain, and subarachnoid hemorrhaging between the
skull and the brain. Kinnison found the results peculiar because
encephalomalacic/leukomalacic changes are not typical of an acute presentation. But the
subarachnoid hemorrhages appeared acute in nature, and the subdural effusions may or
may not have been acute as they appeared to be in the process of resolution.
       Because of these results, Kinnison referred B. to an infectious disease specialist
and a genetic specialist for a complete medical workup. Doctors ruled out meningitis.
They discovered cytomegalovirus in B.’s urine and blood, but not in his spinal fluid,
although that was determined not to be the cause of the encephalomalacia and
leukomalacia. Although Dr. Curry, a genetic specialist, found markers present for
thrombophilia (which manifests in patients as a stroke), she did not believe this provided
an explanation for either the subarachnoid hemorrhages, encephalomalacia, or
leukomalacia reflected on the imaging scans. Glutaric aciduria, a metabolic disorder,



                                             4.
also was ruled out. An ophthalmologist found evidence of retinal hemorrhages in B.’s
left eye.
       Kinnison reviewed B.’s birth history but found nothing to explain his injuries.
Following the complete medical workup, Kinnison concluded, with a “reasonable degree
of medical certainty,” that B.’s injuries were caused by nonaccidental trauma.
       Kinnison explained that shaking a baby’s head could cause bleeding to the brain
due to the sheering of veins. B.’s MRI showed bleeding in both the subarachnoid space
and subdural space. Sheering of veins was indicated by the subdural effusions, which
were suggestive of older blood or possibly subacute bleeding, as well as the subarachnoid
bleeding. In addition, the encephalomalacia and leukomalacia also were suggestive of
sheering injuries.
       Based on B.’s injuries, Kinnison opined B. had suffered two instances of injury.
He noted there was evidence of acute subarachnoid bleeding, which meant the injury
occurred sometime close to the time B. was admitted to the hospital. He opined the acute
injury was caused by a nonaccidental head trauma, either due to a contact injury or a
noncontact injury.
       The encephalomalacic/leukomalacic areas were not suggestive of an acute injury
because there was no swelling. As such, Kinnison opined the injury occurred in a short
timeframe prior to B.’s admission to the hospital, possibly caused by an
acceleration/deceleration injury. Kinnison concluded the encephalomalacic/leukomalacic
findings were not consistent with birth trauma, nor were they caused by the
administration of CPR.
       Dr. Graciela Esquivel-Aguilar, B.’s primary pediatrician, testified that B.’s normal
vaginal delivery resulted in a small hematoma on the back of his head. B.’s postbirth
exam was normal and he was described as a healthy baby. At his two-week checkup, B.
was normal except that his weight gain was slow. Fleming and mother reported B. had
been crying a lot the day before, but Esquivel-Aguilar found no specific cause for his

                                            5.
irritability. Esquivel-Aguilar determined that the tiny spots on B.’s left cheek were
Mongolian spots. Due to his slow weight gain, Esquivel-Aguilar asked that B. return for
a followup appointment two days later. Instead, Fleming and mother brought him back
four days later. That was the last time Esquivel-Aguilar saw B. prior to the February 14
incident.
       Detective Michael Cross, the primary investigating officer, interviewed Fleming
and mother on February 17. Mother described her pregnancy and delivery with B. as
normal and without complications. Fleming told Cross he had been kicked out of Army
boot camp because the drill sergeants did not like him. Fleming also claimed he and
mother “fought like a normal couple” and were “both equally aggressive.” Fleming did
admit he punched a hole in the bedroom door after a fight with mother a month prior.
       When asked about the Valentine letter he had written, Fleming explained mother
thought he had an anger problem and needed counseling. Fleming admitted he would
become angry and “fly off the handle,” but he would take a walk, lift weights, kick
things, and punch things to alleviate his anger.
       When Cross asked Fleming about B.’s general behavior and temperament,
Fleming said that B. “cries like ballistic.” On February 13 B. stayed awake and cried for
approximately three hours. Fleming insisted that on February 14 he and mother
consumed only two shots of alcohol during the afternoon. When Cross asked why the
alcohol bottle was empty, Fleming claimed the bottle was cold from the freezer and it
slipped out of his hand and accidentally spilled.
       According to Fleming, he and mother had been “hanging out” during the afternoon
when B. woke up crying about 4:00 p.m. Fleming went into the bedroom to change B.’s
diaper before returning to the living room. Sometime later, he realized that there were no
sounds coming from B.’s baby monitor, so he went to check on him. B. was
nonresponsive, so Fleming yelled for mother to call 911. Fleming tried to revive B. by
clapping B.’s feet together and patting his face. He then began to perform CPR.

                                             6.
       Fleming reenacted the event for Cross using a doll. As he exited the bedroom
carrying the doll in his right arm, Fleming bumped his right shoulder into the doorjamb.
Fleming stopped the reenactment and appeared to start to cry, but Cross saw no tears.
Fleming then took several deep breaths and said something to the effect, “I did it, I did do
it.” Fleming explained to Cross that he thought he must have hurt B. when he jarred his
shoulder into the doorjamb as he moved B. into the living room. But Fleming maintained
he never hit B.
       Kellie told Cross she thought Fleming had been involved with the Army Special
Forces for approximately six years. In the weeks following the incident with B., Kellie
noticed Fleming and mother fighting with each other more frequently. She saw a bruise
on mother’s arm, which she reported to Cross. Kellie testified she did not believe
Fleming intentionally hurt B., and that she never saw him physically abuse, shake, or hit
B. or mother.
       Two witnesses testified regarding prior instances of domestic violence with
Fleming. Leanna B. met Fleming in November of 2005, and they dated for a couple of
years. They had a son together in late 2006. When their son was approximately six
months old, Leanna and Fleming got into an argument while out to dinner and it
continued on the way home. While Leanna was driving through a parking lot, Fleming
exited the moving vehicle and attempted to take their son from the car. When Leanna
refused to stop, Fleming became even angrier. He got back into the car and punched
Leanna four or five times in the head, causing her to bleed. Leanna reported the incident
to law enforcement the following day.
       Leanna also testified that when their son was two months old, she left him in
Fleming’s care while she went to work. When she returned home, she noticed their son
had a bruise over his left eye. Fleming denied hurting the child and claimed the injury
occurred while he was in the care of Leanna’s aunt. Leanna did not report the injury or



                                             7.
have it treated by a doctor because Fleming told her the doctor would accuse her of
abusing their son.
       Patricia L. testified she had a relationship with Fleming in 2006. In August of that
year, she and Fleming got into an argument and Fleming followed Patricia through the
apartment and refused to let her leave. Fleming blocked the doors and removed the
battery from Patricia’s cell phone. When Patricia attempted to use Fleming’s cell phone,
he grabbed her wrist and threw her onto a mattress. When Fleming eventually calmed
down, Patricia left the house and called the police. While they were dating, Fleming,
who always wore cargo pants and dog tags, told Patricia he had been in the Army and had
killed several people. Fleming subsequently was arrested for making threats toward
Patricia. Patricia acknowledged Fleming never hit or kicked her.
       Defense Evidence
       Mother testified for the defense that she always placed B. on his back when he
slept. She also reaffirmed her earlier testimony regarding the events of February 14,
including her claim that she consumed only one alcoholic drink that afternoon.
       Sandra Cornell met Fleming in the middle of 2009 when he and mother lived with
her for approximately six months. She described Fleming and mother as having “normal
everyday problems” and disagreements, but she never saw Fleming physically assault
mother. Cornell believed Fleming and mother were happy and attentive parents to B.
She never saw Fleming act violently toward B. On one occasion, Fleming came over to
see her and he was “a little like stressed” because B. was having a “temper tantrum” and
had been up all night. Cornell described Fleming as having “a little bit of a temper” “like
most people.” Although she claimed he never exhibited violence toward her, he did have
a heated argument with Cornell’s husband and “put his hands” on him. Cornell heard
Fleming had been in the Army and had prior instances of domestic violence, but she
claimed not to know specifics.



                                            8.
        Bartram, Fleming and mother’s neighbor, saw Fleming and mother several times
on February 14. Fleming appeared to be in a good mood all day, and Bartram did not
notice any unusual behavior until he heard mother call 911. Bartram was impeached with
felony domestic violence and driving under the influence convictions.
        Dr. David Posey, a board-certified anatomic and clinical pathologist, testified as a
medical expert. Posey reviewed B.’s medical records, consulted with Dr. Patrick Barnes,
a neuroradiologist, and Dr. Atkinson, a neuropathologist. Posey testified the records
revealed no evidence of external trauma. He described the discoloration under B.’s left
eye, stating, “it could be a small birth mark,” but “not a bruise.” He agreed B. had retinal
hemorrhaging in his left eye, but it was not an “overly great amount of hemorrhage.”
Posey explained that victims of intentional abusive trauma typically suffer hemorrhaging
in both eyes. Posey did not believe B.’s injuries were consistent with shaking because
there were no bone fractures, neck or spinal injuries, or bruising to the arms, shoulders or
ribs.
        Posey did agree that the subarachnoid hemorrhage was indicative of an acute
finding. He also agreed that the record and studies suggested an older finding, which he
opined occurred either right before or during birth and was likely a “hypoxic injury.”
Posey and Barnes disagreed with the prosecution’s experts’ exclusions of thrombosis as
the cause of the injuries. Posey theorized the acute injuries could have resulted from B.
being placed on his back in the crib and choking on his gastric contents while he slept.
He agreed the injuries were not caused by the administration of CPR.
        Based on his review of the records and consultation with Barnes and Atkinson,
Posey opined that B., sometime at or about the time of birth, suffered a hypoxic episode
in which his brain was deprived of oxygen. According to Posey, it was during this
episode that B. sustained an undiagnosed subdural injury, which was still in the process
of healing on February 14. Then, on February 14, B. either experienced an apneic
episode, in which he stopped breathing while sleeping, or he spit up in his sleep and

                                              9.
stopped breathing for a few minutes, which caused the acute finding in the subarachnoid
and aggravated the older subdural injury. This also caused B.’s brain to swell, which
caused the retinal hemorrhaging.
       Posey and his colleagues disagreed with Kinnison’s conclusion that the case
involved nonaccidental inflicted trauma. Had that occurred, Posey would have expected
other external evidence of physical injury, such as fractures or neck injuries.
       Rebuttal Evidence
       The People recalled Kinnison, who disagreed with Posey’s assessment that the
injuries resulted from a hypoxic event at B.’s birth because the location of the
encephalomalacic/leukolmalacic areas were not consistent with where he would expect to
see them in a hypoxic event. In addition, Kinnison and the neuroradiologist concluded
that the injuries resulted from true trauma, as opposed to a birth-related event, based on
the sheering injury, the healing that had occurred, and some hemorrhagic appearance.
Curry, the genetic specialist, agreed with Kinnison in ruling out thrombophilia, based on
her review of the birth records and medical workup done on B.
       Kinnison also disagreed with Barnes’s opinion that shaking alone, without impact,
was insufficient to cause B.’s injuries, absent some other evidence of external injury.
According to Kinnison, his diagnosis that B. suffered a nonaccidental injury was based
on the results of his complete medical workup and review and interpretation of the films,
X-rays, and scans. He looked for every possible medical explanation or cause of the
injuries before reaching his conclusion.
                                      DISCUSSION
I.     Prosecutor’s Comments During Closing Argument
       Fleming contends that the prosecutor’s comments during closing argument on his
demeanor at trial constituted Griffin error and violated his Fifth Amendment due process
right to be convicted of evidence adduced only at trial. Fleming argues further that the
trial court erred in overruling his objection and then abused its discretion when it denied

                                            10.
his motion for a new trial based on this incident by applying the incorrect legal standard
to the federal constitutional error. Fleming asks this court to order a new trial, or, in the
alternative, to remand the matter to the trial court for reconsideration of the motion for
new trial using the correct legal standard.
       Procedural Summary
       During closing argument, defense counsel addressed Fleming’s purported past
instances of violence and argued such testimony was not evidence of Fleming’s guilt.
Defense counsel then stated that Bartram’s testimony was important because he saw
mother and Fleming three times on the afternoon of February 14 and “[a]t no point does
he see any signs that [Fleming] is losing control. At no point does he see any signs that
[B.] is being particularly fussy.” In other words, refuting the prosecution’s portrayal of
Fleming in earlier closing argument as so angry and frustrated with B. that he lost control
and shook him.
       During rebuttal, the prosecutor noted this was a case of circumstantial evidence.
He again addressed the various doctors and their diagnoses and one of the women who
had testified to Fleming’s prior acts of violence. Then he said the following:

       “Now, there’s also portrayal, I guess, that was the purpose of Mr. Bartram’s
       testimony to say, you know, [Fleming] didn’t show any signs of being upset
       on that particular day, no emotion, no anger, nothing. You’ve had an
       opportunity to observe [Fleming] during the testimony in the courtroom.
       Have you seen him crying? Have you seen him angry? Have you seen him
       emotionally distraught?”
Defense counsel objected, stating the prosecution’s argument was “bordering on Griffin
error.” The trial court noted the objection and held an unreported sidebar discussion.
Following the sidebar, without a ruling or an admonishment on the record, the prosecutor
continued with rebuttal.




                                              11.
       Following trial, Fleming made a new trial motion based, in part, on prosecutorial
misconduct as evidenced by the above referenced statements made in rebuttal.5 At the
hearing on the motion, defense counsel argued the prosecutor’s comments on Fleming’s
nontestimonial behavior “violate[d] his due process rights and his Fifth Amendment right
not to testify.” As asserted by defense counsel, the prosecutor was asking the jury to
conclude that since Fleming was not angry on February 14, and he did not appear to be
angry during the trial, in essence, Bartram’s testimony was not valid or not worthy of
consideration. He contended the comment was “asking the jurors to use Mr. Fleming’s
non-testimonial behavior as substantive evidence of his guilt .…” Defense counsel
claimed the statements were inappropriate, and that under either Chapman6 or Watson7
reversal was required.
       The prosecutor argued the comments “[c]learly” were “not Griffin error,” as they
in no way commented on Fleming’s lack of testimony. The prosecutor also maintained it
was the defense that put this issue in front of the jury by having witnesses state Fleming
was “not angry in any way” on February 14, and therefore it was appropriate for the
People “to point out to the jury that during this trial when there was some emotional
testimony that was presented, there was no expression likewise that was presented by Mr.
Fleming.”
       After considering arguments of counsel, the trial court observed that in federal
cases, if prosecutorial misconduct is of constitutional dimension, the error is reversible if
not harmless beyond a reasonable doubt. If it is not of constitutional magnitude, it is


5      Attached to the motion was a declaration from defense counsel stating that, at the
sidebar after the objection at trial, the trial court, inter alia, overruled the Griffin
objection, stating that defense counsel’s theory was “way off.”
6      Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
7      People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).



                                             12.
reversible only if it is reasonably probable that a more favorable result would have
occurred if the prosecutor had refrained from the misconduct. The trial court also noted
that “[s]tate cases that discuss improper conduct in the form of comments regarding the
defendant’s demeanor do not suggest that this misconduct violates any constitutional
right” and apply a reasonable probability standard.
       The trial court stated, “The bottom line is that the prosecutor should not have
asked the jury to consider the defendant’s demeanor in court. It is unclear to me if in
doing so the prosecutor was asking the jury to draw any adverse inference of guilt from
the defendant’s conduct. In any event, his comments, I believe were inappropriate.” The
trial court stated that while it believed the jury was correctly instructed, “it would have
been better if I had sustained the objection and admonished the jury at the time the
comment was made.” The trial court stated it did not believe it had judicially endorsed
the prosecutor’s actions. The trial court concluded that “in light of the entire record,”
there was no reasonable probability that, absent the prosecutor’s comment, the jury would
have found Fleming not guilty.
       Griffin Error
       Fleming contends the comments about his demeanor violated the Griffin rule. We
note the trial court never mentioned Griffin during the hearing on the new trial motion.
We therefore must determine whether the alleged misconduct constitutes Griffin error in
the first instance. We conclude it does not.
       The doctrine of Griffin error bars the prosecutor from suggesting that the jury
should draw an inference adverse to the defendant because he or she did not testify at
trial, in legitimate reliance on his or her Fifth Amendment privilege against self-
incrimination. (Griffin, supra, 380 U.S. at p. 615.) Griffin error occurs when there is a
reasonable likelihood jurors could have understood the prosecutor’s comments, in their
context, to refer to the defendant’s failure to testify as evidence of guilt. (People v. Clair
(1992) 2 Cal.4th 629, 663.) The California Supreme Court extended this principle in

                                               13.
People v. Vargas (1973) 9 Cal.3d 470 (Vargas) by holding improper a prosecutor’s
comment on the absence of evidence that could be provided only by the defendant’s
testimony. (Id. at pp. 475-476.)
        But Griffin does not preclude a prosecutor from commenting on the state of the
evidence or the defendant’s failure to call logical witnesses or introduce material
evidence. (Vargas, supra, 9 Cal.3d at p. 475.) Additionally, “a prosecutor is justified in
making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to
argument of defense counsel and are based on the record.” (People v. Hill (1967) 66
Cal.2d 536, 560.) Also, “‘brief and mild references to a defendant’s failure to testify,
without any suggestion that an inference of guilt be drawn therefrom, are uniformly held
to constitute harmless error.’ [Citation.]” (People v. Turner (2004) 34 Cal.4th 406, 419-
420.)
        Here, the prosecutor’s statement was brief and mild and made no reference to
Fleming not testifying. Instead, the prosecutor was drawing a parallel between Fleming’s
demeanor at trial and Fleming’s demeanor as witnessed by Bartram on February 14.
        These comments cannot be interpreted fairly as referring to Fleming’s failure to
testify. Nor is it reasonably likely the jury would have understood those remarks as
inviting them to infer guilt based on Fleming’s failure to testify. No Griffin error
occurred.
        Fifth Amendment Due Process
        Fleming also contends the prosecutor’s remarks about demeanor violated his Fifth
Amendment due process right to be convicted only by evidence adduced at trial.
        California courts generally have held that a prosecutor commits misconduct when
he or she comments about a nontestifying defendant’s demeanor during the guilt phase of
a criminal trial. (See People v. Medina (1990) 51 Cal.3d 870, 896 (Medina); People v.
Heishman (1988) 45 Cal.3d 147, 197 [general rule prohibiting comment on nontestifying
defendant’s courtroom behavior]; People v. Garcia (1984) 160 Cal.App.3d 82, 93

                                            14.
(Garcia) [prosecutor’s improper comment on defendant’s “snickering” at witness’s
testimony].) The rationale for the rule is:

       “In criminal trials of guilt, prosecutorial references to a nontestifying
       defendant’s demeanor or behavior in the courtroom have been held
       improper on three grounds: (1) Demeanor evidence is cognizable and
       relevant only as it bears on the credibility of a witness. (2) The
       prosecutorial comment infringes on the defendant’s right not to testify.
       (3) Consideration of the defendant’s behavior or demeanor while off the
       stand violates the rule that criminal conduct cannot be inferred from bad
       character. [Citations.]” (Heishman, at p. 197, italics added.)
       Fleming argues the prosecutor’s reference to his courtroom behavior was improper
because it invited the jury to speculate that Fleming’s courtroom conduct showed him to
be the type of person willing to participate in unlawful activity and therefore was likely to
have committed the crime in question. He also claims the error is of federal
constitutional dimension and must be reviewed under the “harmless beyond a reasonable
doubt” standard of Chapman. (Chapman, supra, 386 U.S. at p. 24.) But “[c]ourts of this
state have generally assumed that prosecutorial misconduct is error of less than
constitutional magnitude. [Citation.]” (People v. Bolton (1979) 23 Cal.3d 208, 214,
fn. 4.) Furthermore, in cases where jurors improperly are exposed to certain factual
matters, the error usually is tested under the standard set out in Watson, supra, 46 Cal.2d
at page 836. (See, e.g., People v. Tassell (1984) 36 Cal.3d 77, 89, overruled on other
grounds in People v. Ewoldt (1994) 7 Cal.4th 380, 386-387; People v. Cardenas (1982)
31 Cal.3d 897, 907.)
       In People v. Gilliam (1974) 41 Cal.App.3d 181, during closing argument, while
recounting the robbery victim’s trial testimony, the prosecutor observed the defendant
was smiling, and stated, “‘The defendant thinks it’s funny. Nobody was pointing a gun at
him.’” (Id. at p. 194.) The appellate court concluded this remark did not require reversal
of the defendant’s conviction after testing the prosecutor’s remarks under the standard set
out in Watson. (Gilliam, at p. 195.)


                                              15.
       In Garcia, supra, 160 Cal.App.3d 82, the prosecutor, during closing, reviewed the
brutal nature of the crimes charged and then asked, “‘Why? I can’t explain the why of it
no more than I can explain why two people could sit in a courtroom and hear [the victim]
relate that horrendous experience, how close she came to death and sit here listening to
that testimony and snicker and jeer and laugh about it.’” (Id. at p. 93.) “A defense
objection to this line of argument was overruled, without comment, by the trial court.”
(Ibid.) The court in Garcia found the prosecutor’s reference to the defendant’s
courtroom behavior improper, but found the comment brief and did not specifically state
the jury could consider the defendant’s courtroom conduct as evidence that he committed
the crime. The court concluded the Watson test of probable prejudice was applicable.
(Garcia, at p. 95.)
       Assuming the prosecutor committed misconduct, we conclude any error was
harmless whether viewed under the federal or state standards. (People v. Huggins (2006)
38 Cal.4th 175, 208 [any prosecutorial misconduct was harmless under Chapman, supra,
386 U.S. at p. 24 and Watson, supra, 46 Cal.2d at p. 836].)
       The case against Fleming was strong given the significant amount of medical
evidence the jury received regarding the cause of B.’s injuries. Kinnison, B.’s primary
treating physician, testified at length about the battery of tests and examinations B.
underwent to rule out a medical or genetic cause for the findings. It was only after
Kinnison ruled out every possible medical explanation or cause of the injuries that he
concluded B.’s injuries were caused by nonaccidental head trauma.
       Moreover, the trial court instructed the jury on two occasions, both before opening
statements and after closing argument, that the jury must consider only evidence that was
presented in the courtroom, which consisted of sworn testimony of witnesses and exhibits
admitted into evidence. (CALCRIM Nos. 104, 222.) The jury also was instructed that
the statements made by the attorneys did not constitute evidence in the case. (Ibid.) The
jury was told Fleming had an absolute right not to testify, and they were not to consider

                                             16.
his not testifying. (CALCRIM No. 355.) Jurors are presumed to have understood and
followed the trial court’s instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1005;
People v. Baughman (2008) 166 Cal.App.4th 1316, 1321.)
       Because we conclude the prosecutor’s remarks were not prejudicial, we need not
address Fleming’s further claim that the trial court erred in applying the incorrect
standard to his new trial motion.
II.    Prejudicial Misconduct by Prosecutor
       Fleming contends the prosecutor “engaged in a widespread pattern of misconduct,
occurring throughout closing argument,” violating his constitutional right to due process.
Alternatively, Fleming argues that if we determine any of his contentions have been
forfeited by the failure of counsel to make specific objections or requests for curative
instructions, he has been denied the effective assistance of counsel.
       Applicable Law and Analysis
       “‘Under California law, a prosecutor commits reversible misconduct if he or she
makes use of “deceptive or reprehensible methods” when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.] Under the
federal Constitution, conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment upon the defendant’s
invocation of the right to remain silent—but is otherwise worthy of condemnation, is not
a constitutional violation unless the challenged action “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process.’” [Citation.]’
[Citation.]” (People v. Fuiava (2012) 53 Cal.4th 622, 679.)
       “If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the
jury, we consider how the statement would, or could, have been understood by a
reasonable juror in the context of the entire argument. [Citations.]” People v. Woods
(2006) 146 Cal.App.4th 106, 111.) “No misconduct exists if a juror would have taken the

                                             17.
statement to state or imply nothing harmful. [Citation.]” (Ibid.) “‘“[A] prosecutor is
given wide latitude during argument. The argument may be vigorous as long as it
amounts to fair comment on the evidence, which can include reasonable inferences, or
deductions to be drawn therefrom. [Citations.] It is also clear that counsel during
summation may state matters not in evidence, but which are common knowledge or are
illustrations drawn from common experience, history or literature.” [Citation.]’” (People
v. Ward (2005) 36 Cal.4th 186, 215.)
       “In general, ‘“‘a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant
[requested] an assignment of misconduct and [also] requested that the jury be
admonished to disregard the impropriety.’”’ [Citation.]” (People v. Young (2005) 34
Cal.4th 1149, 1184-1185.)
       The People contend Fleming forfeited some of his argument concerning
prosecutorial misconduct by failing to object in the trial court, when objections and
admonitions would have cured the alleged harms. Fleming concedes he did not object to
each instance of alleged prosecutorial misconduct raised. For the sake of judicial
efficiency, we will address the merits of Fleming’s prosecutorial misconduct contentions.
(People v. Ochoa (1998) 19 Cal.4th 353, 427-428.) By doing so, we determine whether
his counsel was ineffective, which he argues in the alternative. (People v. Ibarra (2007)
156 Cal.App.4th 1174, 1179.)
       We address each of Fleming’s claims of prosecutorial misconduct in turn:8




8      Fleming includes as part of his argument the incident addressed in issue No. 1,
ante. Since we have addressed that thoroughly, we do not repeat it here.



                                            18.
                A. Facts Not in Evidence or Vouching
         Fleming argues certain statements made by the prosecutor during rebuttal
concerning the clear and convincing standard were “an attempt … to bootstrap the jury’s
reasonable doubt finding onto a prior non-jury finding.”
         Earlier, during closing argument, defense counsel had contrasted the different
burdens of proof in order to illustrate and distinguish proof beyond a reasonable doubt.
After discussing the preponderance of evidence standard, defense counsel described the
clear and convincing evidence standard as “what [child protective services (CPS)] needs
to demonstrate in order to permanently remove the child from your home.” Defense
counsel then went on to explain the highest burden of proof as being beyond a reasonable
doubt.
         In rebuttal, the prosecutor noted defense counsel “talked about the different levels
of burden. One of them he mentioned was clear and convincing evidence, a burden
which you know has already been met --” Defense counsel objected, stating, “Facts not
in evidence; improper argument.” Before ruling on the objection, the prosecutor
continued, stating, “as a result of the testimony that was given.” The trial court noted the
objection.
         Fleming contends the prosecutor’s statement “invited the jury to conclude that the
evidence that Fleming engaged in child abuse had already been found by CPS to meet the
clear and convincing standard. What is suggested, then, is that since another fact finder
had already determined the clear and convincing standard was met, it did not take much
more to find the case proven beyond a reasonable doubt.”
         The People counter that, when viewed in full context, the statement is unclear
whether the prosecutor was arguing the clear and convincing standard had been met
because the jury heard testimony that CPS had been involved in B.’s case, or whether he
was arguing that the totality of the evidence presented at trial met the clear and
convincing evidence. The prosecutor did state, immediately after the contested

                                              19.
statement, “There’s only one other burden that’s higher than that, and that’s beyond a
reasonable doubt. And that’s why you are here, to determine whether, in fact, Mr.
Fleming is guilty beyond a reasonable doubt.”
       The evidence at trial showed that questioning of mother by both the prosecutor
and defense counsel elicited responses that B. had been in CPS care. During direct
examination by the prosecutor, mother testified she loved Fleming but broke off her
engagement with him because CPS told her she had to choose between Fleming and B.,
and that if she had contact with Fleming, she would not see B. again. On cross-
examination by defense counsel, mother described her relationship with Fleming as
including arguments with each other. In response from a question by defense counsel,
mother acknowledged that tension between the two of them “got worse after [B.] got
taken away.”
       We agree with Fleming that it is misconduct to argue that a defendant had been
held to answer after a preliminary hearing or that a grand jury has issued an indictment.
(People v. Whitehead (1957) 148 Cal.App.2d 701, 706; People v. Hale (1947) 82
Cal.App.2d 827, 832-833.) But we disagree with him that the situation here, when
looked at in context, is analogous.
       Nor do we agree that what occurred here was impermissible “vouching” by the
prosecutor. (People v. Anderson (1990) 52 Cal.3d 453, 479.) A prosecutor commits
misconduct by vouching or suggesting to the jury that he or she possesses factual
information or knowledge about the case beyond the evidence adduced at trial. The
impropriety consists in leading the jury to judge the case, not on the basis of the evidence
actually presented, but instead on the basis of some other information to which the
prosecutor alone is privy and about which the jury remains uninformed. (People v. Earp
(1999) 20 Cal.4th 826, 864; see also People v. Frye (1998) 18 Cal.4th 894, 971,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)



                                            20.
       Applying these principles, we conclude the above quoted statements were not
improper and do not constitute improper vouching.
              B. Reasonable Doubt Standard
       Fleming contends the prosecutor prejudicially misstated the reasonable doubt
standard during rebuttal.
       During closing, as part of his argument, defense counsel asked the jury that if they
found Fleming guilty, would they at some point ask: “Did I convict an innocent father?
And if that thought is going to be bugging you and you’re going to be having that in your
mind, then you vote not guilty.”
       In countering this argument by defense counsel, the prosecutor, in rebuttal, argued
the following:

       “The issue of reasonable doubt, abiding conviction of the truth of the
       charge, do you believe that [Fleming] is guilty? The answer is yes. Do you
       believe that you will believe that he is guilty tomorrow, next week, next
       month? That is proof beyond a reasonable doubt. The question that needs
       to be asked then first is, do you believe that [Fleming] is guilty? It does not
       have anything to do with water on a roadway, with snow in the background.
       That’s not relevant to this case.9 What is relevant is if [B.] was in front of
       you today, would you say, [Fleming], I trust you to take care of [B.]”
       (Italics added.)
       Defense counsel objected, stating the prosecutor was misstating the burden of
proof. The trial court sustained the objection. The prosecutor continued, stating, “The
question is whether you believe that he’s guilty. How are you going to determine
whether you believe that he’s guilty? That’s a tough question. What I would suggest it

9       During jury selection, the prosecutor had given an example of circumstantial
evidence involving a swimming pool, footprints by the pool, and someone covered in
drops of water. Defense counsel, in closing referred to this example and said the current
situation was more akin to “a few drops of water by the pool and a footprint and nothing
else.” Later, he again mentioned the “water” example and asked, “How did that water get
there?” and “did it come from snow run-off or was the farmer or rancher across there in
the field using the sprinklers or did it rain the night before[?]”



                                            21.
as one way, that you make that determination.” The trial court admonished the jury,
telling them to “disregard that remark.”
       Fleming claims the italicized remarks by the prosecutor, and his further comment
on that remark, were a prejudicial misstatement of the standard of proof. “It is
misconduct for a prosecutor to misstate the law during argument. [Citation.] This is
particularly so when misstatement attempts ‘to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements. [Citation.]’ [Citation.]”
(People v. Otero (2012) 210 Cal.App.4th 865, 870-871.) “‘When, as here, the point
focuses on 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.’ [Citation.]” (People v. Thomas (2012) 53
Cal.4th 771, 797.)
       Section 1096 defines reasonable doubt as follows: “‘It is not a mere possible
doubt; because everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in that condition that they
cannot say they feel an abiding conviction of the truth of the charge.’” No further
information about the definition of “reasonable doubt,” other than that in section 1096,
needs to be given to a jury. (§ 1096a.)
       We do not think the prosecutor’s argument, when examined in context, misstated
the burden of proof. Instead, when considered as a whole, the prosecutor’s statements
reflect a proper representation of the law. As noted earlier, the prosecutor himself
argued, “There’s only one other burden that’s higher than [clear and convincing], and
that’s beyond a reasonable doubt. And that’s why you are here, to determine whether, in
fact, Mr. Fleming is guilty beyond a reasonable doubt.”
       In any event, even if the prosecutor committed misconduct, we conclude the
remarks were harmless. The trial court admonished the jury to disregard the prosecutor’s

                                            22.
remark. In addition, the trial court instructed the jury on the reasonable doubt standard of
proof. (CALCRIM No. 220.) It also instructed the jury with CALCRIM No. 200, which
provides, in part, “If you believe that the attorneys’ comments on the law conflict with
my instructions, you must follow my instructions.” We presume the jury obeyed the
admonition and the instructions. (People v. Stanley (1995) 10 Cal.4th 764, 837.)
              C. Discrediting a Defense Expert
       Fleming maintains the prosecutor committed misconduct by referring to facts
about Posey not in evidence, namely, that he was the only expert who would challenge
shaken baby syndrome.
       During direct examination of Posey by defense counsel, Posey acknowledged he
was paid to testify. When asked if he always testified on behalf of the defense, Posey
stated, “in the last years I have.”
       During voir dire of Posey by the prosecutor, the prosecutor asked if Posey had
ever seen a PowerPoint presentation on forensic science and shaken baby syndrome given
by Jane McClellan, who Posey acknowledged had contacted him for consultative
services. Defense counsel objected on relevance grounds and the trial court sustained the
objection.
       During subsequent cross-examination of Posey, the prosecutor displayed a
PowerPoint presentation from the federal defender’s office that listed Posey as the only
expert who “challenges Shaken Baby Syndrome.” Posey stated he had not seen the
PowerPoint before. The prosecutor then asked Posey whether, “as far as Jane McClellan
is concerned, you’re the only expert that challenges Shaken Baby Syndrome[?]” Defense
counsel objected on grounds the evidence lacked foundation and misstated the evidence.
The trial court sustained the objection.
       During rebuttal, the prosecutor questioned Posey’s bias and described him as
someone who “gets paid to come [from Southern California] and testify,” and that “in a
simple Google search is shown on a PowerPoint presentation to be the only expert that is

                                            23.
listed in a federal defender’s presentation as the expert that would challenge Shaken Baby
Syndrome.” Defense counsel did not object to this statement.
       Fleming now claims misconduct by the prosecutor for referring to facts about
Posey that were “misleading, misstated the evidence, and referred to matters that were
not in evidence.”
       It is not improper to comment on the possible bias of a witness, if the comment is
based on facts placed in evidence or reasonable inferences from information that is
factually accurate. (People v. Farnam (2002) 28 Cal.4th 107, 171; People v. Ervin
(2000) 22 Cal.4th 48, 92; People v. Sandoval (1992) 4 Cal.4th 155, 179-180.) There was
evidence at trial that Posey was hired primarily to testify on the behalf of the defendants,
suggesting a possible bias that could be argued to the jury.
       Further, it is not misconduct for a prosecutor to “remind the jurors that a paid
witness may accordingly be biased .…” (People v. Arias (1996) 13 Cal.4th 92, 162.)
Thus, our Supreme Court found no misconduct where a prosecutor commented that a
defense expert had been paid significant fees to “‘come[] up with something that excuses
[the defendant’s] responsibility.’” (People v. Cook (2006) 39 Cal.4th 566, 613.) The
court in Cook rejected the defense claim that the prosecutor’s argument implied that the
expert had given “‘false testimony for a fee,’ thereby impugning defense counsel’s
integrity for having, in effect, bought the expert’s testimony.” (Id. at pp. 613-614; see
also People v. Spector (2011) 194 Cal.App.4th 1335, 1407 [no misconduct where
prosecutor referred to “paid-to-say” expert witnesses]; People v. Monterroso (2004) 34
Cal.4th 743, 783-784 (Monterroso) [no misconduct where prosecutor referred to the
“industry of these defense experts that bounce around from trial to trial, state to state,
collecting good money for testimony”].)
       Here, too, the prosecutor’s comments about Posey being paid to come from
Southern California to testify to give, in essence, a favorable opinion for the defense were
“within the bounds of proper argument.” (Monterroso, supra, 34 Cal.4th at p. 784.)

                                             24.
Although the prosecutor erred in commenting on “a simple Google search” in which
Posey was listed as the only expert that would challenge shaken baby syndrome, and in
making other references that the trial court had not allowed during cross examination, the
error was not prejudicial. Instructions to the jury made it clear the prosecutor’s argument
was not evidence and that the jury was responsible for evaluating the credibility of the
expert witnesses. (See CALCRIM Nos. 222, 332.)
              D. Reference to a Matter Not in Evidence
       Fleming argues the prosecutor’s reference during rebuttal to the visibility, or lack
thereof, of his own bruised eye was a violation of his Fifth Amendment right because it
urged the jury to convict Fleming on a matter not in evidence.
       During closing argument defense counsel mentioned a possible bruise to B.’s eye,
referring to testimony of both the EMT and the emergency room physician who noticed
it. Defense counsel urged the jurors to “look at these pictures carefully, and just using
your common sense, ask yourself whether that’s a bruise or whether that’s maybe
something else.” Defense counsel mentioned Esquivel-Aguilar, who had seen B. two
weeks before February 14 and had noticed a pattern, bruise, or discoloration around the
left eye. Defense counsel argued the prosecutor wanted the jurors to believe the bruise
was caused by Fleming shaking B., but noted the bruise did not change over the course of
time, and that, as Posey testified, “bruises don’t simply stay the same.… They change.”
       During rebuttal, in discussing B.’s black eye, the prosecutor argued, “I think that
defense counsel counted on you using your common sense as to how long a black eye
exists. There’s been no evidence of that. I can tell you that during this trial, I had a black
eye. You guys probably didn’t notice that, and it was cleared up the next day.” Defense
counsel objected that this constituted improper argument based on facts not in evidence.
The trial court sustained the objection. Defense counsel did not request an admonition.
       Fleming claims the reference by the prosecutor to his own bruise meant he
“effectively testified as a witness by telling the jury he had a black eye that cleared up.

                                             25.
The testimony was significant because the prosecution attributed a small bruise near B.’s
eye to the alleged child abuse.”
       It is misconduct for a prosecutor to state facts not in evidence or to imply the
existence of evidence known to the prosecutor but not to the jury. (People v. Smith
(2003) 30 Cal.4th 581, 617.) Here, the prosecutor’s argument was in direct response to
defense counsel’s argument that the jury should use their common sense in deciding
whether the mark seen on B. was a black eye or “something else.”
       Assuming without deciding that this statement by the prosecutor was misconduct,
we conclude there is not a reasonable likelihood the jury construed or applied the
complained-of remark in an objectionable fashion. (People v. Friend (2009) 47 Cal.4th
1, 29.) The trial court instructed the jury, pursuant to CALCRIM No. 222, that
statements by attorneys during closing argument are not evidence. The trial court also
admonished the jury, pursuant to CALCRIM No. 200, that it was up to them “alone” to
decide what happened, “based only on the evidence that has been presented to you in this
trial.” Thus, we conclude it is unlikely the jury construed or applied the prosecutor’s
remarks in an objectionable fashion.
              E. Cumulative Error
       Fleming contends finally that the “pattern of misconduct” on the part of the
prosecutor denied him a fair trial. We disagree.
       We concluded above that the record either does not support a finding the
prosecutor committed misconduct, or, if he did, the jury did not apply or construe the
prosecutor’s statements in an objectionable manner. Accordingly, we reject Fleming’s
claim that the cumulative impact of the alleged misconduct resulted in prejudice and
deprived him of a fair trial and due process. (See People v. Parson (2008) 44 Cal.4th
332, 368 [reaching a similar conclusion].)




                                             26.
III.   Mistrial Motion During Voir Dire
       Fleming contends defense counsel was ineffective for failing to request a mistrial
after inflammatory comments by a prospective juror during voir dire tainted the final jury
panel. He further asserts the trial court violated his federal constitutional rights to due
process by failing to declare a mistrial.
       Summary of Voir Dire Proceedings
       On the first day of jury voir dire, the trial court displayed a list of potential
witnesses to the jury and asked the prospective jurors if they knew anyone on the list.
Prospective Juror J.S. stated he knew prospective witness Cornell. When asked how, J.S.
stated, “I know her brother.” Although J.S. had met Cornell, he did not socialize with her
on a regular basis; instead, J.S. was a close friend of Cornell’s brother. When J.S. then
stated Cornell was a “liar,” both counsel stipulated to his removal. Defense counsel did
not move for a mistrial.
       Cornell subsequently testified as a defense witness that she had known Fleming
since 2009, and, at some point, Fleming and mother moved in with her, and, later still,
into an apartment across the hall from her. According to Cornell, Fleming and mother
never screamed, yelled, or used violence, and she described Fleming and mother as very
attentive parents to B. Cornell never observed Fleming become violent or frustrated with
B. But she did remember one night when B. was having a “temper tantrum” and Fleming
came to her place “a little like stressed.” And she did recall an incident when Fleming
and her husband had had a “heated argument.”
       Applicable Law and Analysis
       A defendant has a constitutional right to a fair and impartial jury. (People v.
Martinez (1991) 228 Cal.App.3d 1456, 1459 (Martinez).) Generally, “discharging the
entire venire is a remedy that should be reserved for the most serious occasions of
demonstrated bias or prejudice, where interrogation and removal of the offending



                                              27.
venirepersons would be insufficient protection for the defendant.” (Medina, supra, 51
Cal.3d at p. 889.)
       The denial of a motion for a mistrial is reviewed by an abuse of discretion and
should be granted “only when ‘“a party’s chances of receiving a fair trial have been
irreparably damaged.”’” (People v. Ayala (2000) 23 Cal.4th 225, 282.) Likewise, the
trial court has broad discretion to determine “whether or not possible bias or prejudice
against the defendant has contaminated the entire venire to such an extreme that its
discharge is required.” (Medina, supra, 51 Cal.3d at p. 889.) A few inflammatory
remarks made by prospective jurors do not automatically necessitate such a drastic
remedy.
       In Medina, a prospective juror on voir dire stated she had heard fellow prospective
jurors state that the defendant’s own lawyers believed him to be guilty. Another juror
stated the “authorities should ‘bring the guilty S.O.B. in, we’ll give him a trial, and then
hang him.’” (Medina, supra, 51 Cal.3d at p. 888.) The Supreme Court found the trial
court did not err in rejecting a request to discharge the entire jury panel. (Id. at p. 889.)
       In contrast, in Mach v. Stewart (9th Cir. 1998) 137 F.3d 630 (Mach), in which the
defendant was charged with oral copulation of an eight year old, the trial judge elicited
from a prospective juror, who was a social worker with the state’s child protective
services, that she had a certain amount of expertise in the area of child abuse. The
prospective juror also stated that in every case in which one of her clients reported a
sexual assault, the assault had been confirmed. The prospective juror stated at least three
more times that she was unaware of any case in which a child lied about being sexually
assaulted. The prospective juror was excused, but the trial court denied a defense request
for a mistrial based on a tainted jury panel. (Id. at pp. 631-633.)
       The Ninth Circuit Court of Appeals found the defendant’s right to an impartial
jury had been violated:



                                              28.
       “Given the nature of [the prospective juror’s] statements, the certainty with
       which they were delivered, the years of experience that led to them, and the
       number of times that they were repeated, we presume that at least one juror
       was tainted and entered into jury deliberations with the conviction that
       children simply never lie about being sexually abused. This bias violated
       [the defendant’s] right to an impartial jury.” (Mach, supra, 137 F.3d at
       p. 633.)
       Here, Prospective Juror J.S.’s only statement that Cornell was a “liar” pales in
comparison to the statements made in Medina, in which no error was found. And unlike
the prospective juror in Mach, Prospective Juror J.S. expressed no opinion about the
specific charged crimes, or that Fleming was guilty of those crimes. In addition, Cornell
testified at trial and the jury was able to determine her credibility for themselves.
       Fleming argues defense counsel was ineffective for failing to request a mistrial
based on jury taint. There are two components to a successful claim of ineffective
assistance of counsel. First, a defendant must show the performance of his or her trial
counsel was deficient, and, second, that there is a reasonable probability the outcome
would have been different had the purportedly deficient acts or omissions not occurred.
(People v. Ledesma (1987) 43 Cal.3d 171, 217-218 (Ledesma).)
       With regard to the first prong, a trial counsel’s performance is deficient when it
falls below an objective standard of reasonableness under prevailing professional norms.
(Ledesma, supra, 43 Cal.3d at p. 216.) Our scrutiny of that performance is a deferential
one. (Ibid.) When a claim of ineffective assistance is made on appeal, as here, and the
record does not disclose trial counsel’s reasons for the challenged act or omission, we
will deny the claim unless the record shows either that counsel was asked to explain his
or her reasons and failed to do so or that there can be no possible satisfactory explanation.
(People v. Pope (1979) 23 Cal.3d 412, 426-427, fn. 17, overruled on other grounds in
People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in
People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)




                                             29.
       “‘[I]t [is] a rare case in which the merits of a mistrial motion [are] so clear that
counsel’s failure to make the motion … amount[s] to ineffective assistance.’ [Citation.]”
(People v. Jennings (1991) 53 Cal.3d 334, 380.) Based on the analysis of Medina and
Mach, we conclude this is not one of those rare cases. Fleming’s claim of ineffective
assistance of counsel fails. Necessarily, the trial court did not err by failing to declare a
mistrial.
IV.    Admission of Fleming’s Military Background
       Fleming challenges the admissibility of testimony by a former girlfriend about his
military experience. Fleming contends the trial court erred in admitting the testimony
because it was irrelevant. He also argues admission of this evidence was so prejudicial it
violated his right to due process and a fair trial.
       Procedural Summary
       On the sixth day of trial, the trial court held an Evidence Code section 402 hearing
out of the presence of the jury concerning evidence the prosecution wished to offer
pursuant to Evidence Code section 1109.10 At the hearing, Patricia described an instance
in 2006 when she was living with Fleming and he followed her through the apartment
during an argument, removed the battery from her cell phone, and would not allow her to
leave. Fleming grabbed her wrist during the incident. Patricia testified that she was
scared because her children were not home, she did not know what was going to happen,
and she had no way of communicating with anyone.
       When Fleming eventually allowed her to leave, Patricia went to her aunt’s
apartment next door and called the police. Her aunt received text messages from Fleming

10     Evidence Code section 1109, subdivision (a)(1) provides that in a case in which
the defendant is charged with an act of domestic violence, “evidence of the defendant’s
commission of other domestic violence is not made inadmissible by [Evidence Code]
Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section
352.”



                                              30.
stating, “I am two seconds from beating her head in, talk to her before she gets hurt” and
“talk to her or I’m going to kill her, no bullshit.” When police arrived, they arrested
Fleming.
       Patricia testified she and Fleming argued constantly and he often had “mood
swings out of nowhere.” Although she could not recall specific details, Patricia testified
about a second incident in which Fleming acted violently toward her.
       When the prosecutor asked Patricia about Fleming’s military experience, defense
counsel objected on relevance grounds. The prosecutor responded that he expected
Patricia to testify Fleming had told her he had been in the Army and had killed people,
which he argued was relevant to Patricia’s perception of Fleming’s criminal threat. The
trial court overruled the objection.
       Patricia then testified Fleming had told her he had been in the Army’s infantry,
and he wore dog tags, cargo pants, and always carried a Swiss knife. Fleming told
Patricia he had killed people, and he had a picture on his computer of two soldiers, one
being him standing over a dead body.
       On cross-examination, defense counsel impeached Patricia with evidence from the
police report that the text messages she described were received on August 17, 2006, but
the incident when Fleming locked her in the apartment occurred on August 21, 2006.
Patricia also admitted Fleming never directly threatened to kill her, and he never hit or
kicked her, although he did throw her onto the mattress during the August 21 incident.
       Defense counsel argued Patricia’s entire testimony should be excluded under
Evidence Code section 352 as improper propensity evidence and because the incident
described by Patricia was not sufficiently similar to the incident involving B.
       The prosecutor proposed limiting Patricia’s testimony to evidence that she and
Fleming had a volatile and increasingly violent and aggressive relationship to the point
where she obtained a restraining order against him. He also sought to admit Patricia’s



                                            31.
belief that Fleming had served in the Army based on the way he dressed and his
statement that he had been a soldier and had killed people.
       Defense counsel again argued that the probative value of the evidence was
substantially outweighed by the risk of undue prejudice. He also argued the evidence
regarding Fleming’s military background was irrelevant.
       Following argument, the trial court ruled the evidence

       “goes towards the domestic violence issue of intimidation. There’s
       psychological domestic violence, also, and … I think that’s what it goes
       towards. And I think that while under [Evidence Code section] 352
       analysis, I think that it would be fine.”
       At trial Patricia testified she had a relationship with Fleming in 2006. In August
of that year, she and Fleming got into an argument and Fleming followed her through the
house and refused to let her leave. Fleming blocked the doors and removed the battery
from Patricia’s cell phone. When she attempted to use Fleming’s cell phone, he grabbed
her wrist and threw her onto a mattress. When Fleming eventually calmed down, Patricia
left the house and called the police. While they were dating, Fleming wore “Navy dog
tags,” cargo pants, and carried a Swiss knife and told Patricia he had been in the Army
and had killed several people. Fleming subsequently was arrested for making threats
toward Patricia. On cross-examination, Patricia acknowledged that Fleming never hit or
kicked her.
       The prosecutor also introduced evidence of Fleming’s military background during
the testimony of Cross, who testified Fleming had told him he was kicked out of boot
camp because the drill sergeants did not like him.
       Applicable Law and Analysis
       A trial court’s decision to admit or exclude evidence, whether made in limine or
following a hearing pursuant to Evidence Code section 402, is reviewed for abuse of
discretion. (People v. Williams (1997) 16 Cal.4th 153, 196-197.) Abuse will not be
found unless the trial court has exceeded the bounds of reason by exercising its discretion

                                            32.
in an arbitrary, capricious or patently absurd manner that resulted in a manifest
miscarriage of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
       Relevant evidence is all evidence “‘including evidence relevant to the credibility
of a witness or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.’ (Evid. Code,
§ 210; [citation].) The court is vested with wide discretion in determining relevance
under this standard. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 523.) However,
“the court has no discretion to admit irrelevant evidence. [Citations.]” (People v. Poggi
(1988) 45 Cal.3d 306, 323 [where photographs of victim were not relevant to any
disputed material issue, trial court had no discretion to admit them].)
       With certain exceptions, “in a criminal action in which the defendant is accused of
an offense involving domestic violence, evidence of the defendant’s commission of other
domestic violence is not made inadmissible by [Evidence Code] Section 1101 if the
evidence is not inadmissible pursuant to [Evidence Code] Section 352.” (Evid. Code,
§ 1109, subd. (a)(1).) “Under Evidence Code section 1109, evidence of a prior act of
domestic violence is admissible to prove the defendant had a propensity to commit
domestic violence when the defendant is charged with an offense involving domestic
violence.” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1114 (Rucker).) In People v.
Dallas (2008) 165 Cal.App.4th 940, 942-943, the court held that a prosecution for child
abuse pursuant to section 273a, subdivision (a) constitutes a “domestic violence”
prosecution as the term is used in Evidence Code section 1109.
       The trial court, however, has the discretion to exclude any such evidence under
Evidence Code section 352 if it is more prejudicial than probative. (Rucker, supra, 126
Cal.App.4th at p. 1114.) “The prejudice which exclusion of evidence under Evidence
Code section 352 is designed to avoid is not the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence,

                                            33.
the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on the issues. In applying
[Evidence Code] section 352, “prejudicial” is not synonymous with “damaging.”’
[Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.) “[A]s the Supreme Court has
repeatedly and recently reaffirmed, ‘when ruling on a[n] [Evidence Code] section 352
motion, a trial court need not expressly weigh prejudice against probative value, or even
expressly state that it has done so. All that is required is that the record demonstrate the
trial court understood and fulfilled its responsibilities under … section 352.’ [Citations.]”
(People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
       Fleming argues the testimony of Patricia that Fleming wore cargo pants, dog tags,
carried a Swiss knife, and stated that he had killed someone while serving in the Army
was irrelevant. The People argue this evidence helped to explain the basis for Patricia’s
fear of Fleming during the incident she testified to, in which he followed her through the
apartment during an argument, removed the batteries from her cell phone, and blocked
her from leaving. Fleming counters that since no threats by Fleming toward Patricia were
admitted into evidence, and because Patricia never testified that Fleming’s military
experience placed her in fear, the basis for admissibility was invalid.
       Even if we assume admission of this evidence was error, Fleming has failed to
demonstrate a reasonable probability that he would have received a more favorable
outcome at trial had the evidence been excluded. (Watson, supra, 46 Cal.2d at p. 836.)
Patricia’s mention of Fleming’s claims regarding his military experience was brief and
never mentioned during the prosecutor’s closing or rebuttal arguments. In addition, the
jury’s focus in its deliberations appears to have centered on the medical evidence, as
demonstrated by the requests for read back of testimony from the first responder and
medical doctors.



                                             34.
       Fleming also argues that admitting the evidence in question violated his due
process rights. “‘Ordinarily, even erroneous admission of evidence does not offend due
process unless it is so prejudicial as to render the proceeding fundamentally unfair.’ …
[¶] ‘To prove a deprivation of federal due process rights, [a defendant] must satisfy a high
constitutional standard to show that the erroneous admission of evidence resulted in an
unfair trial.’ [Citation.] ‘“The dispositive issue is … whether the trial court committed an
error which rendered the trial ‘so “arbitrary and fundamentally unfair” that it violated
federal due process.’ [Citations.]” [Citation.]’ [Citation.]” (People v. Covarrubias
(2011) 202 Cal.App.4th 1, 20.)
       As we explained above, even if the trial court erred in concluding the evidence
was relevant, its admission was not unduly prejudicial. Thus, its admission did not
violate Fleming’s constitutional rights.
V.     Posttrial Marsden Motion
       Fleming argues the trial court abused its discretion when it denied his posttrial
Marsden motion because he established trial counsel’s incompetence and, therefore, new
counsel should have been appointed to file a new trial motion based on trial counsel’s
incompetence.
       Procedural Summary
       Following his conviction but before sentencing, Fleming filed a written Marsden
motion alleging trial counsel had been ineffective and he requested substitution of
counsel. At a hearing on the motion, Fleming alleged counsel was ineffective for
(1) failing to call Atkinson and Barnes as expert witnesses at trial, (2) failing to impeach
Fleming’s ex-girlfriend Leanna, (3) failing to provide copies of the medical records,
police reports, and other miscellaneous discovery, (4) failing to file a Pitchess11 motion
because Cross’s report included statements Fleming never made, (5) failing to file a
11     Pitchess v. Superior Court (1974) 11 Cal.3d 531.



                                             35.
section 1538.5 motion, (6) a lack of mental alertness during the last few days of trial,
(7) failing to notify the trial court that some jurors appeared to fall asleep during trial,
(8) inadequate communication and followup with Fleming, and (9) improper advice to
waive his speedy trial rights.
        In response, trial counsel first discussed the timing of his appointment as
Fleming’s counsel and the general efforts he undertook with regard to the pretrial
investigation. He then responded to each of Fleming’s complaints in turn. He explained
he never planned on calling Atkinson as a witness because his testimony would have
been cumulative to Posey’s testimony. Although counsel explained he “wish[ed]” he
would have had Barnes testify, he did not necessarily think it was a mistake on his part
because Barnes “does not travel.” Counsel stated Barnes “will only testify via telephone
or an Internet hook-up. I don’t believe that I asked the Court to do either of those things.
In retrospect I wish I would have done that.” Defense counsel stated he did think there
was “some merit to the claim that [Dr. Barnes’s] could have been important in this case
given the ultimate outcome.” But, he explained, the jury heard extensively about Barnes
and his findings, his curriculum vitae (CV) was placed into evidence, and Posey and
Kinnison testified extensively about various aspects of Barnes’s report.
        Defense counsel explained he did not impeach Leanna because it would have been
a minor issue in “the whole scheme of things,” and he did not want to open the door to
other, more prejudicial issues that had been raised in the pretrial Evidence Code section
402 hearing. Counsel noted he did impeach Leanna “substantially and extensively on the
issue which mattered most to this case,” which was the alleged injury she found on her
own son.
        Defense counsel did not recall Fleming asking him to file either a Pitchess or
section 1538.5 motion, but such motions would have been meritless given the facts of the
case.



                                              36.
        Concerning his conduct during trial, defense counsel admitted he was “not as
mentally sharp” as he would have liked to be on the first day of trial when he questioned
Kinnison, but he had been “a little bit under the weather.” He felt he had recovered by
the following day and was able to cover every issue he could have raised with respect to
Kinnison’s testimony.
        Defense counsel explained Fleming’s concerns regarding his failure to provide
copies of discovery, stating that he responded to Fleming’s requests and visited him in
jail no fewer than nine times prior to the start of trial. In addition, defense counsel
explained that many of the requested items were not in a format that counsel could
provide to Fleming. The two agreed that, if necessary, and upon Fleming’s request,
counsel would make efforts to provide that information. Fleming never made a followup
request. Counsel also stated his jail visits and communications with Fleming were as
lengthy as they needed to be and Fleming was given every opportunity to ask questions.
        With respect to the speedy trial issue, defense counsel explained Fleming
ultimately agreed to waive time in order to allow Posey the full time necessary to review
the case, prepare a report, and testify at trial.
        Finally, defense counsel addressed the issue of jurors allegedly sleeping during
trial. He recalled Fleming mentioning some jurors were either sleeping or not paying
attention during part of the testimony. Counsel told Fleming he would notify the trial
court, but did not recall if he had done so. He did remember that it was not an issue after
that.
        After confirming with Fleming that there were no further complaints that needed
to be addressed, the trial court denied the Marsden motion, stating:

        “To the extent there are conflicts between the statements made during this
        hearing, I believe [trial counsel] for the following reasons: I have observed
        [trial counsel] not only through this trial, but through many other trials.
        There have been conflicts in … Fleming’s statements this morning, which
        were clarified by [trial counsel]. His explanations to the Court certainly


                                               37.
       show the Court that he has adequately represented … Fleming, and
       therefore I find that [trial counsel] has properly represented … Fleming and
       will continue to do so.”
       Applicable Law and Analysis

               “When a defendant seeks to discharge his appointed counsel and
       substitute another attorney, and asserts inadequate representation, the trial
       court must permit the defendant to explain the basis of his contention and to
       relate specific instances of the attorney’s inadequate performance.
       [Citation.]” (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on
       other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
“The defendant … cannot rest upon mere failure to get along with or have confidence in
counsel.” (People v. Bills (1995) 38 Cal.App.4th 953, 961.)
       As detailed above, nothing in the record suggests the trial court deprived Fleming
of the opportunity to speak out regarding his dissatisfaction. And defense counsel
responded to each of Fleming’s allegations.
       On appeal, Fleming agrees that he was provided an opportunity to state his
grievances with counsel. But, he still claims the trial court abused its discretion in
denying his Marsden motion because, at a minimum, counsel was ineffective for failing
to subpoena Barnes and to alert the trial court about several sleeping jurors. We disagree.
       Defense counsel explained the reasons for not providing Fleming with certain
discovery. He claimed his visits and communication with Fleming were adequate.
Although he did not recall whether he had mentioned the sleeping jurors to the trial court,
he did recall it was not “an issue” after Fleming mentioned it to him. Defense counsel
further explained it was Fleming who agreed to waive time for a speedy trial in order to
allow Posey the time needed to review the case. And counsel explained he had been
“under the weather” on the first day of trial, but recovered. We note the trial trial court
also was able to observe the jurors during trial, as well as counsel’s performance. In
addition, “[t]o the extent there was a credibility question between defendant and counsel




                                             38.
at the hearing, the court was ‘entitled to accept counsel’s explanation.’ [Citation.]”
(People v. Smith (1993) 6 Cal.4th 684, 696.)
       As for Fleming’s claims about counsel’s failure to file certain motions, impeach
Leanna, or call Barnes, a disagreement as to tactics and strategy is not sufficient to
require substitution of counsel. (People v. Steward (1970) 6 Cal.App.3d 457, 464-465.)
And there is “no constitutional right to an attorney who will conduct the defense of the
case in accordance with an indigent defendant’s whims.” (People v. Nailor (1966) 240
Cal.App.2d 489, 494.)
       In particular, Fleming has failed to establish that trial counsel’s failure to subpeona
Barnes was objectively unreasonable. (Strickland v. Washington (1984) 466 U.S. 668,
690.) Posey, a crucial defense witness, testified regarding the mechanism of B.’s injuries
and on the theory that the medical findings occurred as a result of birth trauma. Posey
testified Barnes had interpreted B.’s scans and X-rays and then provided this information
to Posey for use in reaching his expert conclusion. It was reasonable for defense counsel
to conclude Barnes’s live testimony was unnecessary and cumulative. Defense counsel
bolstered Barnes’s findings by admitting Barnes’s CV into evidence as a defense exhibit.
“Counsel was entitled to formulate a strategy that was reasonable at the time and to
balance limited resources in accord with effective trial tactics and strategies. [Citations.]”
(Harrington v. Richter (2011) ___ U.S. ___ [131 S.Ct. 770, 789].)
       When the trial court has conducted an adequate hearing, as it has here, and denied
the request for substitute counsel, we review the court’s ruling for abuse of discretion.
(People v. Ortiz (1990) 51 Cal.3d 975, 980, fn. 1.) “‘Once a defendant is afforded an
opportunity to state his or her reasons for seeking to discharge an appointed attorney, the
decision whether or not to grant a motion for substitution of counsel lies within the
discretion of the trial judge. The court does not abuse its discretion in denying a Marsden
motion “‘unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant’s right to assistance of counsel.’” [Citations.]

                                             39.
Substantial impairment of the right to counsel can occur when the appointed counsel is
providing inadequate representation or when “the defendant and the attorney have
become embroiled in such an irreconcilable conflict that ineffective representation is
likely to result [citation].” [Citations.]’ [Citation.]” (People v. Myles (2012) 53 Cal.4th
1181, 1207.) Here, there is no basis for concluding the trial court abused its discretion in
denying Fleming’s Marsden motion.
                                      DISPOSITION
       The judgment is affirmed.


                                                                 _____________________
                                                                   CORNELL, Acting P.J.


WE CONCUR:


 _____________________
GOMES, J.


 _____________________
POOCHIGIAN, J.




                                            40.
