Filed 12/12/14 P. v. Quintero CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

THE PEOPLE,                                                          H039290
                                                                    (San Benito County
         Plaintiff and Respondent,                                   Super. Ct. No. CR-11-01277)

         v.

DAVID STEPHEN QUINTERO,

         Defendant and Appellant.


         Following a jury trial, David Stephen Quintero was found guilty of assault with
force likely to produce great bodily injury (former Pen. Code,1 § 245, subd. (a)(1))
(a lesser offense to count 5), making criminal threats (§ 422) (count 10), and disobeying a
court order (§ 166, subd. (a)(4)) (count 14).2 The jury found true that, in committing the
violation of section 245, subdivision (a)(1), and in committing the violation of
section 422, defendant personally inflicted great bodily injury upon the victim
(§ 12022.7). The trial court found two prior prison term allegations (§ 667.5, subd. (b))
to be true. Defendant was sentenced to a total term of nine years, eight months.
         On appeal, defendant Quintero asserts that he was denied a fair trial as the result of
prosecutorial misconduct and erroneous admission of his booking photograph. He argues
that this case must be remanded for resentencing because the San Benito County Superior

1
       All further statutory references are to the Penal Code unless otherwise stated.
2
       Defendant was originally charged with 16 counts, including two counts of forcible
rape and two counts of forcible oral copulation. Before jury deliberations, five counts
(counts 4, 6, 7, 13, & 16) were dismissed. The jury found defendant not guilty of count 5
(torture) and eight other counts, including the remaining three sexual offense charges.
Court denied his request for a continuance to be sentenced by the trial judge. He further
contends that, if we find the request for sentencing by the trial judge was forfeited
because defense counsel failed to file a timely motion for a continuance, he received
ineffective assistance of counsel.
       We find no reversible error and, accordingly, we will affirm.
                                              I
                                         Evidence
       Jaime Sequeira and defendant had been in a sexually intimate relationship from
about the end of November 2009 until May 2010. On October 15, 2010, Sequeira
obtained a restraining order against defendant. Within weeks of the issuance of the order,
defendant violated it by going to Sequeira’s workplace and he was arrested. Despite the
order, Sequeira continued to go to defendant’s house approximately once a week and
occasionally they had sex. Between May 2010 and July 21, 2011, Sequeira and
defendant occasionally smoked methamphetamine or marijuana together.
       According to Sequeira, defendant telephoned her a few times on the evening of
July 21, 2011, he sounded really upset, and he asked her to come over to his house.
Defendant threatened to hurt Sequeira’s father if she did not come. Sequeira drove over
to defendant’s house at about 11:30 p.m.
       The defendant’s home and his father’s home are next to each other on the same
property. Joseph Morgan also lives on the same property, described as a ranch, in a
residence close to defendant’s home.
       At some point, defendant invited Sequeira into his bedroom. Defendant grabbed
her by her hair, head-butted her in the forehead, and punched her in the head. Defendant
asked her how it felt to know that it was going to be her “last night” and “[h]e was the
last person that [she] was going to see.” Shortly after defendant began hitting and
punching her while they were in defendant’s bedroom, defendant pointed to a supposed
surveillance camera in his bedroom and told her that people were watching and she
                                              2
would not make it off the property if she tried to leave. She testified to being afraid and
feeling that she could not leave. Defendant kept hitting her and knocking her to the floor.
Using a belt, defendant struck her with a belt buckle on her back multiple times. He
pinned her on the bed and bit her on her wrist and head.
       During the hours that Sequeira was at defendant’s house, they had sexual
intercourse and Sequeira orally copulated defendant. At some point, defendant used a
syringe to inject Sequeira.3 When defendant seemed to be calming down and he was
looking at a photo album, Sequeira asked defendant whether he was hungry and then
made him something to eat. They had sex again.
       Shortly before noon on July 22, 2011, Sequeira was able to leave defendant’s
house and she drove home. Sequeira’s stepmother saw that Sequeira was injured;
Sequeira could hardly stand, her eye was black and blue, and the entire side of her face
was swollen. The stepmother telephoned the sheriff’s office and a deputy responded to
the house. Sequeira went to the sheriff’s office and agreed to a SART (Sexual Assault
Response Team) exam.
       The SART exam was performed on Sequeira on July 22, 2011. Photographs
documenting Sequeira’s injuries were taken. A number of samples were collected from
her, including a blood sample. The SART nurse testified that Sequeira had multiple bite
marks and there was bruising to her eye, discoloration and swelling surrounding the eye
area, and discoloration, redness, swelling, or bruising over many parts of her body
consistent with someone hitting her and pulling her hair. Sequeira also had numerous red
and linear marks down her back that could have been made with a belt. In the nurse’s
opinion, Sequeira’s injuries were consistent with having been beaten.

3
       At trial, Sequeira testified defendant had forcibly injected her with a substance,
which at one point he told her was “something that was going to kill [her]” and at another
point he said it was “speed.” Sequeira’s blood sample contained methamphetamine. It is
possible that the jury had a reasonable doubt whether defendant forcibly injected
Sequeira since she also testified that they sometimes smoked methamphetamine together.
                                             3
       The nurse testified that there had been vaginal penetration and some vaginal injury
but those injuries could have been consistent with normal intercourse. The nurse did not
find any vaginal lacerations. She did document a red mark in the middle of Sequeira’s
arm, which Sequeira told the nurse was a puncture wound from a needle. The nurse
testified that the mark was consistent with a puncture wound from a needle.
                                              II
                                         Discussion
A. Trial Error
1. Defendant’s Booking Photo
       Defendant now argues that the booking photograph had negligible relevance
because his appearance at the time of his arrest and his identity were not issues at trial.
He also asserts that the booking photograph’s “scant probative value” was outweighed by
its highly prejudicial effect because, in the photograph, he “wears a shirt with broad,
horizontal grey-and-white stripes suggestive of a jail uniform,” he “stares unsmiling into
the camera and sports long, disheveled hair.” Defendant contends the photograph’s
admission into evidence “tended to undermine the presumption of innocence, in
derogation of [his] jury trial and due process rights under the United States Constitution,
Sixth and Fourteenth Amendments.”
a. Background
       During direct examination, Sequeira testified that she was scared and felt like she
could not leave. During cross-examination, Sequeira testified that defendant’s bedroom
had a door to the outside. Her car was parked off to the side of the door. A kitchen door
also opened to the outside. While Sequeira was in the kitchen making something for
defendant to eat, she did not walk out the door or run to his parents’ house or open the
door and scream for his mother.
       On further redirect examination, the prosecutor asked Sequeira whether there was
any difference between defendant’s appearance at trial and his appearance on the night of
                                              4
the incident. Sequeira indicated that defendant’s hair was longer and he had facial hair.
Defense counsel objected on the ground of relevance and under Evidence Code
section 352. The prosecutor indicated that her testimony was relevant to the victim’s fear
of him based on his intimidating physical appearance. Defense counsel asked for a
sidebar conference before publication of something, impliedly a photograph of defendant,
to the jury. The court overruled the objection, finding that defendant’s appearance at the
time was relevant, although “not hugely,” because it would “help to explain why the
witness acted the way she did.” For the record, defense counsel then stated that the
photograph was defendant’s booking photograph and it was not actually a representation
of defendant’s appearance on July 21, 2011. The court responded, “I would overrule the
objection.”
       The prosecutor showed defendant’s photograph to the witness and asked whether
it was an accurate depiction of what defendant looked like on July 21, 2011 and July 22,
2011. After the witness said “yes,” the prosecutor published the photograph to the jury.
       At the close of the prosecution’s case, the prosecutor moved the People’s exhibits
into evidence. Defense counsel simply stated that she had objected to the booking
photograph. The court stated that it did not discern any prejudice and the exhibit would
be allowed into evidence based on its slight probative value.
b. Analysis
       Defense counsel raised specific objections to the victim’s testimony as to the
defendant’s changed appearance but did not raise, on the record, specific evidentiary
objections to either the publication or the admission of the booking photograph itself.
Defense counsel merely stated for the record that the photograph was a booking
photograph and it was not a representation of how defendant looked on July 21, 2011. It
would appear that any evidentiary objection to the admission of the booking photograph
was forfeited. (Evid. Code, § 353, subd. (a); People v. Partida (2005) 37 Cal.4th 428,
433-435.)
                                             5
       Even if the court understood the defense to be raising relevancy and Evidence
Code section 352 objections to the photograph, the court’s ruling did not result in
prejudicial error. Evidence is relevant if it has any tendency in reason to prove or
disprove any consequential disputed fact. (Id., § 210.) The booking photograph was
relevant to defendant’s appearance at the time of the alleged crimes, which in turn was
relevant, albeit only very marginally, to the issue of the victim’s fear of defendant and her
credibility as to why she did not leave defendant’s home. Before its publication to the
jury or before its admission into evidence, defense counsel did not assert the photograph
of defendant was an unfair representation of defendant’s general appearance around the
time of the alleged crimes, which took place only about two and a half weeks before
defendant’s arrest.
       We have examined the booking photograph. In it, defendant appears serious but
not menacing. He has shoulder length hair, a mustache, and a short beard. The
photograph is mainly of his head and he does not patently appear to be in jail garb. A
stamped number “001” appears on the bottom of the photograph but we have no reason to
believe the number had any significance to the jurors. It was defense counsel who
announced it was a booking photograph. In any case, before the court admitted the
photograph into evidence, there was testimony that defendant had been placed under
arrest in this case on August 6, 2011. Even if jurors could infer from the photograph that
defendant had been arrested and taken to jail, there was independent evidence to that
effect.4 Defendant does not claim that the photograph discloses a prior criminal record.
Under the circumstances, the court did not abuse its discretion in admitting the
photograph into evidence.
       A constitutional objection to the admission of evidence is generally “forfeited to
the extent the defendant argued on appeal that the constitutional provisions required the

4
      Defendant was tried and found not guilty of violating section 148,
subdivision (a)(1) (count 15).
                                             6
trial court to exclude the evidence for a reason not included in the actual trial objection.”
(People v. Partida, supra, 37 Cal.4th 428, 437-438.) A valid evidentiary objection,
however, will preserve the argument that an erroneous evidentiary ruling had the
additional legal consequence of violating due process. (Ibid.) Where a constitutional
claim is preserved as gloss on the evidentiary objection raised at trial, the constitutional
claim fails if the evidence was properly admitted. (People v. Boyer (2006) 38 Cal.4th
412, 441, fn. 17.) Here, the trial court acted within its discretion in finding the
photograph was relevant and not unduly prejudicial and, therefore, we reject defendant’s
constitutional claim.
       Even if we were to assume that admission of the photograph was error, we would
consider it harmless for the reasons just discussed. (See Cal. Const., art. VI, § 13; People
v. Watson (1956) 46 Cal.2d 818, 836.) Furthermore, the trial court instructed the jurors:
“You must not be biased against the defendant just because he has been arrested, charged
with a crime or brought to trial. A defendant in a criminal case is presumed to be
innocent.”
       Even if we had found that the trial court erred in admitting the booking
photograph, we would find no due process violation. “Only when evidence ‘is so
extremely unfair that its admission violates fundamental conceptions of justice,’ [citation]
[has the United States Supreme Court] imposed a constraint tied to the Due Process
Clause. See, e.g., Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217
(1959) (Due process prohibits the State’s ‘knowin[g] use [of] false evidence,’ because
such use violates ‘any concept of ordered liberty.’).” (Perry v. New Hampshire (2012) __
U.S. __, __ [132 S.Ct. 716, 723]; see Lisenba v. California (1941) 314 U.S. 219, 236-237
[62 S.Ct. 280] [coerced confession].) The admission of defendant’s booking photograph
did not rise to that level under the circumstances of this case.




                                              7
2. Alleged Prosecutorial Misconduct During Closing Argument
       Defendant argues that the prosecutor engaged in multiple instances of misconduct
during his closing argument and the prosecutorial misconduct was so pervasive that it
infected his trial with fundamental unfairness and violated his “right to a fair trial under
federal due process principles.” He maintains that the prosecutor “repeatedly and
improperly attacked the integrity of defense counsel” and suggested defense counsel
knew defendant was guilty. Defendant points to prosecutorial remarks to which defense
counsel unsuccessfully objected and to other unchallenged comments, as to which he
now claims objection was futile.
a. Governing Law
       “ ‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety. [Citation.]’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 820.) “A
defendant will be excused from the necessity of either a timely objection and/or a request
for admonition if either would be futile. [Citations.] In addition, failure to request the
jury be admonished does not forfeit the issue for appeal if ‘ “an admonition would not
have cured the harm caused by the misconduct.” ’ [Citations.] Finally, the absence of a
request for a curative admonition does not forfeit the issue for appeal if ‘the court
immediately overrules an objection to alleged prosecutorial misconduct [and as a
consequence] the defendant has no opportunity to make such a request.’ [Citations.]”
(Id. at pp. 820-821.) “A defendant claiming [on appeal] that one of these exceptions
applies must find support for his or her claim in the record. [Citation.] The ritual
incantation that an exception applies is not enough.” (People v. Panah (2005) 35 Cal.4th
395, 462.)
       “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
                                              8
denial of due process.’ (People v. Morales (2001) 25 Cal.4th 34, 44 . . . ; accord, Darden
v. Wainwright (1986) 477 U.S. 168, 181 [91 L.Ed.2d 144, 106 S.Ct. 2464]; Donnelly v.
DeChristoforo (1974) 416 U.S. 637, 643 [40 L.Ed.2d 431,94 S.Ct. 1868].) Under
California law, a prosecutor who uses deceptive or reprehensible methods of persuasion
commits misconduct even if such actions do not render the trial fundamentally unfair.
(People v. Cook (2006) 39 Cal.4th 566, 606 [47 Cal.Rptr.3d 22, 139 P.3d 492].)”
(People v. Doolin (2009) 45 Cal.4th 390, 444.) “[O]ur state law requires reversal when a
prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the
jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct” ’ [Citation.]” (People v.
Davis (2009) 46 Cal.4th 539, 612.)
b. Prosecutorial Comment Related to Defendant’s Changed Appearance
       During his initial closing argument, the prosecutor suggested that Sequeira had
been honest with the jury. He stated that “[s]he told you some embarrassing things” and
“[s]he didn’t pretend to be anyone other than herself.” He further argued: “Her tattoos
were showing. Her wrist and her forearm. She didn’t cut her hair or shave her beard and
wear glasses to look a little more presentable.” Defense counsel did not object.
       Defendant contends that the prosecutor’s remark concerning defendant’s changes
in his appearance for trial improperly suggested to the jury that it should consider his
“unflattering image in the booking photo as substantive evidence of guilt” and was a
“blatantly improper appeal to prejudice.” He argues that the remark about his “booking
photo was tantamount to an argument that he was ‘ “a bad man and presumably guilty,
because he had a bad face.” ’ [Citation.]”
       Defendant overstates the import of the prosecutor’s argument related to
defendant’s changed appearance. The prosecutor was arguing that the victim was being
upfront since, unlike defendant, she had not changed her appearance for trial. In any
case, defendant forfeited his claim of prosecutorial misconduct by failing to object and
                                              9
request an admonition of the jury and he has not demonstrated that any exception applies.
(See People v. Schmeck (2005) 37 Cal.4th 240, 298, abrogated on another ground in
People v. McKinnon (2011) 52 Cal.4th 610, 636-637.)
c. Prosecutorial Comment Related to Defense Witness
       The prosecutor subsequently suggested that the defense did not ask defense
witness, Ashley Bent, whether defendant had a new live-in girlfriend at the time of the
alleged crimes because defense counsel “knew how bad Ashley lied and they just wanted
to get what they could from her.” Defense counsel objected on grounds it was “improper
what [she herself] thought.” The court overruled the objection, stating, “This is
argument.”
       On appeal, defendant challenges that remark on the ground that it is improper for a
prosecutor to imply that defense counsel fabricated evidence or malign defense counsel’s
character. Defense counsel’s limited objection at trial did not encompass the contentions
now raised and, therefore, they were forfeited. (See People v. Thomas (2012) 54 Cal.4th
908, 939.)
       Moreover, our reading of the argument does not disclose, as defendant now
claims, that the prosecutor was making “a baseless suggestion that defense counsel either
suborned, or was indifferent to a likelihood of, her witness committing perjury.” It
appears to us that the prosecutor’s statement actually cuts the other way since it suggests
that defense counsel acted ethically by not seeking to elicit false testimony about whether
defendant’s new girlfriend had been living with him. It is not reasonably likely that the
jury understood the prosecutor’s remark as an attack on defense counsel’s personal
integrity. In any case, a timely objection and admonition would have cured any harm.
       The prosecutor’s comment is more aptly characterized as a disparagement of a
defense witness. “Harsh and colorful attacks on the credibility of opposing witnesses are
permissible if fairly based on the evidence. [Citations.]” (People v. Shazier (2014) 60
Cal.4th 109, 146.) Counsel is “allowed to argue, from the evidence, that a witness’s
                                            10
testimony is unbelievable, unsound, or even a patent ‘lie.’ [Citations.]” (People v. Arias
(1996) 13 Cal.4th 92, 162.) In this case, however, defense counsel did not object on the
ground that the prosecutor was improperly denigrating a defense witness and such
objection was forfeited.
d. Prosecutorial Comments Relating to Defense Counsel
       At the beginning of the prosecutor’s rebuttal closing argument, after indicating
that defense counsel had inaccurately described the facts shown by the evidence, the
prosecutor stated: “That’s what she’s supposed to do is try to confuse, try to catch one of
you guys that way or try to create some kind of doubt. But you’re chosen by me to do
justice and not be fooled by that. I don’t think you were. [¶] Of course, it’s the scariest
part of the trial for her and her defendant client because he’s guilty. The evidence
showed it, my argument showed it, and now they’re scared.” Defense counsel did not
object. Defendant claims that objection would have been futile but the record fails to
support that assertion. Consequently, the objection was forfeited.
       In addition, “[a]n attorney, including a prosecutor, is entitled to point out that the
opposing side is engaging in what the attorney believes to be an attempt to confuse the
issues, and may urge the jury to ignore that attempt and focus on the relevant evidence.”
(People v. Demetrulias (2006) 39 Cal.4th 1, 31-32; see People v. Medina (1995) 11
Cal.4th 694, 759 [prosecutor did not make an improper personal attack on a defense
counsel’s integrity “by observing that ‘any experienced defense attorney can twist a little,
poke a little, try to draw some speculation, try to get you to buy something . . . .’ ”].)
       Subsequently, the prosecutor advised the jury: “Remember what you heard,
review the evidence and use your common sense. She [defense counsel] doesn’t want
you to do that.” Defense counsel did not object and request an admonition as to this
statement. Any objection was forfeited.
       The prosecutor then referred back to defense counsel’s comments on reasonable
doubt. He accused defense counsel of claiming that any doubt constitutes “reasonable
                                              11
doubt.” The prosecutor then stated: “Think about that leaping logic. That’s the kind of
thing that their [sic] trying to get you to do, leap and think about and do [sic] because—”
Defense counsel objected on grounds that the prosecutor was misstating her argument.
The trial court responded, “Well, it’s up to the jury to determine that. Overruled.”
       The trial court properly overruled that objection. “[T]he prosecutor has wide
latitude in describing the deficiencies in opposing counsel’s tactics and factual account.
[Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
       The prosecutor then stated, “This guilty man, she did that so that this guilty man
would not be convicted.” Defense counsel did not interpose an objection to this specific
statement. Any objection was forfeited.
       With respect to great bodily injury, the prosecutor implied that defense counsel
had misled the jury by suggesting that the seriousness of the injury had to be on par with
broken bones. The prosecutor stated: “The whole G.B.I. argument, read the jury
instruction. Ladies and gentlemen, there’s no requirement that there be broken bones,
broken wrists, whatever she [sic]. Kind of looked you in the eye, there has to be, like
broken wrists, broken—no, there doesn’t.” Defense counsel objected on grounds that the
prosecutor had misstated what she had said and it was “inappropriate.” The trial court
overruled the objection; the court told the jurors that “[t]he instructions are set forth that
you’ll read” and reminded the juror’s that it had read the instructions to them.
       The court’s ruling was proper in the defense closing argument, counsel had used
“broken wrists” as an illustration of great bodily injury. The attack on this argument fell
within the prosecution’s wide latitude. (See People v. Bemore, supra, 22 Cal.4th at
p. 846; see People v. Smith (2003) 30 Cal.4th 581, 635 [attacking the defense case and
argument is proper].) Defendant does not contend that the prosecutor misstated the law.
Moreover, the court directed the jury to its instructions, which was sufficient to cure any
conceivable harm.


                                              12
       With respect to Sequeira’s failure to attempt to leave defendant’s house during the
incident, the prosecutor implied that defense counsel had misled the jury by suggesting
there were other houses on defendant’s street. The prosecutor stated: “This is the middle
of a ranch. It’s a labor camp. The only people who came to testify that were nearby were
his people; his parents’ house and a friend’s house. And he told her, [y]ou try to get
away, it’s going to get worse. [¶] Maybe the defense attorney is a lot braver woman.”
       Defense counsel did not object to the “braver woman” remark and, consequently,
any objection was waived. Defendant now contends that an objection would have been
futile. The proper overruling of prior defense objections did not render the objection
futile and the record does not support application of a futility exception.
       The prosecutor subsequently argued defendant was guilty as charged and then told
the jury, “Don’t forget, don’t forget how hard [defense counsel] fought to keep the
picture of what he looked like in reality out.” Defense counsel objected on grounds that
argument was “improper.” The court overruled the objection and stated, “It’s his
booking photo.”
       The prosecutor then stated, “Don’t forget how hard [defense counsel] objected as
the SART nurse recounted injuries and photographs. She took—” After a judicial
comment, the prosecutor clarified that he was talking “about how hard [defense counsel]
objected as the SART nurse testified to the injuries.” Defense counsel objected and
stated, “That’s misconduct.” The court overruled the objection without explanation.
       We agree that defense counsel’s unsuccessful evidentiary objections were not
evidence and the prosecutor improperly denigrated counsel and invited the jury to draw
adverse inferences from counsel’s objections. “Casting uncalled for aspersions on
defense counsel directs attention to largely irrelevant matters and does not constitute
comment on the evidence or argument as to inferences to be drawn therefrom.” (People
v. Thompson (1988) 45 Cal.3d 86, 112.) “ ‘A prosecutor commits misconduct if he or she
attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ (People
                                             13
v. Hill (1998) 17 Cal.4th 800, 832 . . . .) ‘If there is a reasonable likelihood that the jury
would understand the prosecutor’s statements as an assertion that defense counsel sought
to deceive the jury, misconduct would be established.’ (People v. Cummings (1993) 4
Cal.4th 1233, 1302 . . . .)” (People v. Turner (2004) 34 Cal.4th 406, 429.)
        Although defense counsel objected, she failed to request a curative admonition,
which would have cured any harm. (See People v. Montiel (1993) 5 Cal.4th 877, 914.)
“A claim of prosecutorial misconduct is not preserved unless the defendant makes a
timely objection and requests an admonition . . . . [Citation.]” (People v. Hajek (2014)
58 Cal.4th 1144, 1241.) Even assuming the prosecutor’s statements concerning defense
counsel’s evidentiary objections constituted prosecutorial misconduct under state law and
the trial court overruled the objection so quickly that there was no opportunity to request
an admonition, we find no miscarriage of justice. The jury instructions rendered the
misconduct harmless.
        The jury was instructed: “You must decide what the facts are in this case. You
must use only the evidence that is presented in the courtroom. Evidence is the sworn
testimony of witnesses, the exhibits that were admitted into evidence, and anything else I
tell you to consider as evidence.” The court explicitly told the jury: “Nothing that the
attorneys say is evidence. In opening statements and closing arguments the attorneys will
discuss the case, but their remarks are not evidence. Their questions are not evidence.
[¶] Only the witnesses[’] answers are evidence. The attorneys[’] questions are
significant only if they help you understand the witness’s answers. And do not assume
that something is true just because one of the attorneys asked a question that suggests that
it is true.”
        The court admonished the jury to not let bias influence its decision. It told the jury
that bias includes bias for or against an attorney.
        The court thoroughly explained the presumption of innocence and the
prosecution’s burden of proof beyond a reasonable doubt. Although defendant was tried
                                              14
on eleven counts, the jury convicted him of only three crimes, one of which was a lesser
offense of the offense charged. It did not find him guilty of any sexual crime.
e. Conclusion
       Contrary to defendant’s assertion, this is not a case where the prosecutor’s
misconduct was so outrageous and pervasive that proper objection would have been
futile. (See People v. Hillhouse (2002) 27 Cal.4th 469, 501-502; cf. People v. Hill,
supra, 17 Cal.4th at pp. 845-846.) In every instance where counsel failed to timely
object, an admonition would have cured any harm and his failure to object was not
excused. “Whatever methods a trial or appellate court might otherwise use to bring to
heel a recalcitrant or incorrigible prosecutor, the federal Constitution does not require
(and the state Constitution does not permit) the reversal of a criminal conviction unless
the misconduct deprived defendant of a fair trial or resulted in a miscarriage of justice.
[Citation.]” (People v. Hinton (2006) 37 Cal.4th 839, 865.) Whether we consider the
prosecutor’s properly challenged comments separately or together, we find no basis for
reversal.
3. Alleged Griffin error
       Griffin v. California (1965) 380 U.S. 609 [85 S.Ct. 1229] held that “the Fifth
Amendment, . . . in its bearing on the States by reason of the Fourteenth Amendment,
forbids . . . comment by the prosecution on the accused’s silence . . . .” (Id. at p. 615,
fn. omitted.) “Griffin prohibits the . . . prosecutor from suggesting to the jury that it may
treat the defendant’s silence as substantive evidence of guilt.” (Baxter v. Palmigiano
(1976) 425 U.S. 308, 318-319 [96 S.Ct. 1551].) “Under the rule in Griffin, error is
committed whenever the prosecutor . . . comments, either directly or indirectly, upon
defendant’s failure to testify in his defense.” (People v. Medina, supra, 11 Cal.4th at
p. 755.)
       Griffin’s “prohibition does not, however, ‘extend to comments on the state of the
evidence, or on the failure of the defense to introduce material evidence or to call logical
                                              15
witnesses.’ (People v. Medina, [supra,] 11 Cal.4th 694, 755 . . . .) Moreover, ‘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.’ (People v.
Hovey (1988) 44 Cal.3d 543, 572 . . . .)” (People v. Turner, supra, 34 Cal.4th at
pp. 419-420.)
       Toward the beginning of rebuttal closing argument in this case, the prosecutor
responded to defense counsel’s insinuation that Sequeira had a bad motive and defense
counsel’s repeated references to her as “Sinister,” the nickname Sequeira had used in text
messages that she sent to defendant. The prosecutor stated: “That’s kind of what
[defense counsel] was saying. She’s a bad person. Sinister means—what did she say—
intending to do bad will or something like that. We heard what this man did. Regardless
of what his name is, we know what he did to that lady. You have no evidence before
you, you have nothing except what the victim told you in this case, what Ms. Sequeira
told you. [¶] And I know it’s hard for you to make sense because she was kind of all
over the place.”
       Defendant contends that the prosecutor impermissibly commented on his failure to
testify and the comment constitutes constitutional error. Defendant’s claim of Griffin
error was forfeited by defendant’s failure to object in the trial court. (See People v.
Medina, supra, 11 Cal.4th at p. 756; People v. Johnson (1992) 3 Cal.4th 1183,
1227-1228.) Contrary to defendant’s claim, the record does not demonstrate that proper
objection would have been futile. Furthermore, taken in context, there is no reasonable
likelihood the jury understood the prosecutor’s remarks as an invitation to draw an
improper inference of guilt from defendant’s decision not to testify. (See People v.
Medina, supra, at p. 756.)




                                             16
4. Cumulative Effect of Alleged Trial Errors
       Defendant argues that “[u]nder either state or federal prejudice standards, the
judgment should be reversed for cumulative error.” We found only limited trial error, if
any. No cumulative prejudicial effect warrants reversal.
B. Sentencing by Judge Who Did Not Preside at Trial
1. Background
       Sentencing before Judge Leon P. Fox, who had presided over defendant’s jury trial
in San Benito County Superior Court, was originally set for November 28, 2012.
According to defendant, Judge Fox was a visiting judge. Apparently, there was an
in-chambers discussion before the scheduled sentencing hearing.
       On the record at the November 28, 2012 hearing, the probation department asked
for a continuance to complete its sentencing report. Defense counsel asserted that
defendant had a due process right to be sentenced by the judge who actually heard the
evidence at trial. Judge Fox stated for the record that, although he was willing to return
for sentencing, Judge Sanders preferred that the matter be set for sentencing on
Judge Sanders’s calendar to spare the county the expense of paying a court reporter to
come at a time when court reporters do not normally appear. Judge Fox also disclosed
that he “was willing to come back without a fee, but apparently that puts a disruption in
the court’s schedule.” Judge Fox further stated: “If, after reviewing the probation report
and consulting with Judge Sanders, it becomes his decision that I would be the better
choice, then he will set it on the date that I can come back and do the sentencing. So your
motion at this time is premature. Once the probation department has done their work,
once you’ve had a chance to review everything and consult with Judge Sanders, then if
there’s some kind of motion for me to be here, fine.” The sentencing hearing was
rescheduled for December 13, 2012.
       On December 11, 2012, defense counsel filed a written motion to continue the
sentencing hearing for reasons unrelated to defendant’s desire to be sentenced by
                                            17
Judge Fox. In her supporting declaration, executed on December 10, 2012, defense
counsel stated that she had not yet received the probation report and it was important that
she receive and review the report prior to the sentencing hearing “[b]ecause Mr. Quintero
will be sentenced by a judicial officer other than the judge who presided over the
trial . . . .”
         On December 13, 2012, the sentencing hearing was reset for December 27, 2012.
Prior to December 27, 2012, defendant did not bring a motion to have Judge Fox, who
presided over his trial, impose sentence.
         On December 27, 2012, the parties appeared before Judge Steven R. Sanders for
sentencing. Defense counsel moved for a continuance of the sentencing hearing and
requested that Judge Fox be allowed to return to sentence defendant. The court indicated
that sentencing at that time was appropriate and “the normal custom.” The court stated:
“It’s not merely an administrative convenience or a justification including cost
considerations and fairness to both the People and to the defense.” It noted that “this is a
general assignment and outside of the limited scope of involvement of Judge Fox” and
indicated that “[t]his court has been processing this case and it’s familiar with this case.”
The court proceeded with sentencing.
         Judge Sanders noted that defendant was on probation when the instant crimes were
committed. The judge imposed the upper term of four years on defendant’s aggravated
assault conviction (former § 245, subd. (a)(1)), citing the fact that defendant’s adult
convictions are numerous and of increasing seriousness. (See Cal. Rules of Court,
rule 4.421(b)(2).) The judge sentenced defendant to a consecutive term of eight months
(one-third of the middle term) on the criminal threats conviction (§ 422), citing “the fact
that the crime involved a threat of great bodily harm or actions disclosing a high degree
of cruelty, viciousness or callousness.” (See Cal. Rules of Court, rule 4.421(a)(1)). The
judge imposed additional enhancement terms, three years for personal infliction of great
bodily injury (§ 12022.7, subd. (a)) and two years for the two prior prison terms (§ 667.5,
                                             18
subd. (b)). The judge imposed a concurrent 180-day term for disobeying a court order
(§ 166, subd. (a)(4)). Defendant does not raise any sentencing error on appeal.
2. Analysis
       Citing People v. Jacobs (2007) 156 Cal.App.4th 728 (Jacobs) and People v.
Strunk (1995) 31 Cal.App.4th 265 (Strunk), defendant argues that his request to have
Judge Fox, rather than Judge Sanders, impose sentence established good cause for
granting a continuance to allow Judge Fox to impose sentence and Judge Sander’s denial
of a continuance constituted “a legal abuse of discretion.” He asserts that Judge Sanders
stated no good reason for denying the request for a continuance. He argues that
Judge Sanders’s reasoning contradicted the authorities holding that sentencing by the trial
judge is the preferred procedure.
       The California Supreme Court has stated: “It is settled that it is not error for a
judge other than the one who tried a criminal case to pronounce judgment and sentence.
[Citations.]” (People v. Downer (1962) 57 Cal.2d 800, 816.) “Unlike a defendant who
enters into a plea bargain with an implied term that the same judge who accepts the plea
will impose the sentence [citation], a defendant who has been convicted after trial has no
such right. [Citation.]” (Jacobs, supra, 156 Cal.App.4th at p. 733.) Yet, it is also
established that “a defendant’s interest in a full and fair sentencing hearing usually is best
served when the hearing is presided over by the same judge who heard the evidence at
trial. [Citations.]” (Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1261.)
       In Jacobs, supra, 156 Cal.App.4th at page 735 the appellate court held that the
trial court abused its discretion by refusing to continue a sentencing hearing for three
days until the trial judge was available for sentencing.
       In Strunk, supra, 31 Cal.App.4th 265, the trial judge did not sentence the
defendant. The appellate court took “judicial notice that the trial judge is still an active
judge of the San Diego Superior Court and is assigned to the South Bay Division.” (Id. at
p. 275, fn. 12.) The court found it significant that the sentencing judge had overlooked
                                              19
mitigating factors raised at trial: “Although there may be certain cases and circumstances
where sentencing by other than the trial judge will not interfere with the defendant’s right
to a fair and full sentencing hearing based on the record in the case, the probation report,
and other statements or evidence submitted for the sentencing hearing, this is not one of
them. Here the sentencing judge exercised his sentencing discretion based solely on the
probation officer’s report with respect to the conclusion there were no mitigating factors.
Because the judge had not sat through the trial, and only reviewed the probation report
which did not list at least three of the mitigating factors claimed by Strunk in the trial
record, we cannot find that the judge exercised its required independent sentencing
discretion or properly weighed all the circumstances.” (Id. at p. 275.)
       The appellate court in Strunk additionally observed that the superior court
followed “a unique administrative procedure” under which all cases were transferred
from the trial judge to the supervising judge for sentencing in order “to facilitate the
court’s settlement practices.” (Strunk, supra, 31 Cal.App.4th at p. 275, fn. 12.) The
appellate court disapproved “[s]uch blanket procedure” because, “without an explicit
agreement by the defendant or some showing of good cause, [the procedure] denies a
defendant his or her right to an independent, full and fair sentencing hearing . . . ” (id. at
p. 275, fn. omitted) and is contrary to the “implied natural course of proceedings that are
expected by the defendant” which contemplates sentencing by the trial judge. (Id. at
p. 275, fn. 13.)
       This case can be distinguished from both Jacobs and Strunk. To begin with,
defendant did not show good cause for failure to timely request a continuance to facilitate
sentencing by the trial judge. (See § 1050, subds. (b) & (d).) Section 1050,
subdivision (b), generally requires a written motion for a continuance to be “filed and
served on all parties to the proceeding at least two court days before the hearing sought to
be continued . . . .” Subdivision (c) of section 1050 permits a motion for a continuance
without compliance with subdivision (b) upon a showing of good cause but the court is
                                              20
precluded from granting the motion if the moving party is unable to show good cause.
(§ 1050, subd. (d).) In Jacobs, the appellate court found that the defendant’s lack of
advance knowledge that the trial judge would not be the sentencing judge “constitutes
good cause justifying an oral motion in this instance.” (Jacobs, supra, 156 Cal.App.4th
at p. 735.) In this case, however, defense counsel’s supporting declaration filed
December 11, 2012 shows that she knew that the trial judge would not be sentencing
defendant. Absent a showing of good cause for an untimely continuance motion,
Judge Sanders did not abuse his discretion in denying defendant’s motion for a
continuance.5
       In addition, Judge Sanders obliquely stated that “this is a general assignment and
outside of the limited scope of involvement of Judge Fox.” The appellate record does not
establish that Judge Fox was sitting under temporary assignment as a judge of the San
Benito County Superior Court on December 27, 2012, when defendant was sentenced,
and the judge would continue sitting under assignment for any specific period of time.
Judge Fox’s previously expressed, personal willingness to return to sentence defendant
does not mean that he was available in a legal sense on any date in the near future. On
appeal, error must be affirmatively shown. (People v. Giordano (2007) 42 Cal.4th 644,
666.) In Jacobs, in contrast to this case, “the trial judge had set the sentencing on his
calendar, in his department, and would be available in three court days to impose it.”
(Jacobs, supra, 156 Cal.App.4th at p. 730.)


5
        Defendant alternatively argues that defense counsel rendered ineffective assistance
by failing to bring a timely motion for a continuance to allow Judge Fox to sentence him.
The record does not demonstrate that defense counsel necessarily acted unreasonably
and, in any case, defendant has not established prejudice under Strickland v. Washington
(1984) 466 U.S. 668. (See Id. at pp. 687-690, 694.) Defendant has not met the burden of
showing a reasonable probability that defendant would have received a more lenient
sentence had his counsel made a timely motion for a continuance. (See Harrington v.
Richter (2011) __ U.S. __, __ [131 S.Ct. 770, 791-792]; Strickland v. Washington, supra,
at p. 694.)
                                              21
       Unlike Strunk, there has been no claim in this case that the sentencing judge relied
on a probation report that omitted mitigating circumstances or was otherwise inaccurate.
Also, unlike Strunk, the record does not disclose that the San Benito County Superior
Court routinely followed an administrative practice of transferring cases from the trial
judges to the presiding judge for sentencing.
       Even if we were to somehow conclude that Judge Sanders should have granted a
continuance to allow Judge Fox to sentence defendant, defendant has failed to show
reversible error. Under the California Constitution,“[n]o judgment shall be set aside . . .
for any error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error complained
of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage
of justice’ should be declared only when the court, ‘after an examination of the entire
cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the absence of
the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) This standard of review is
“based upon reasonable probabilities rather than upon mere possibilities . . . .” (Id. at
p. 837.)
       Defendant concedes that “there exists an element of speculation concerning the
sentence that Judge Fox might have ultimately imposed.” He suggests that, since his
sentence was already enhanced based upon his prior prison terms, Judge Fox might have
not have imposed an aggravated term on the ground that his prior convictions were
numerous or of increasing seriousness. Defendant also proposes that Judge Fox “might”
have considered defendant’s diagnosis of bi-polar disorder and his methamphetamine
problem, which defense counsel raised at the sentencing hearing, as factors in mitigation.




                                             22
Mere conjecture is insufficient to satisfy the Watson standard. (See People v. Fields
(1983) 35 Cal.3d 329, 359.) Defendant has failed to show reversal error.6
                                         DISPOSITION
      The judgment is affirmed.




6
        Moreover, defendant has not shown there is any meaningful relief that may be
granted at this time. Judge Fox is not currently a judge of the San Benito County
Superior Court. Accordingly, defendant’s contention that he is entitled to a new
sentencing hearing before Judge Fox appears moot. (See Consolidated Vultee Air. Corp.
v. United Automobile (1946) 27 Cal.2d 859, 862-863, 865; cf. People v. Calloway (1981)
29 Cal.3d 666, 668.) Where a defendant unsuccessfully brings a timely and meritorious
motion for a continuance to allow the trial judge to perform sentencing, a defendant
might need to seek relief by way of petition for writ of mandate to obtain any meaningful
relief.
                                            23
                                  _________________________________
                                  ELIA, Acting P. J.


WE CONCUR:




_______________________________
BAMATTRE-MANOUKIAN, J.




_______________________________
MIHARA, J.




                                    24
