Filed 7/22/14 P. v. Somoza CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT



THE PEOPLE,                                                          B250592

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. BA394947)
                   v.

EDGAR SOMOZA,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Dennis J. Landin, Judge. Affirmed.

         Doris M. Leroy, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, for Plaintiff and Respondent.


                                                 **********
       Defendant and appellant Edgar Somoza was convicted by jury of two counts of
sex/sodomy with a child under the age of 10 and one count of forced oral copulation with
a child under the age of 10. The two victims were the daughters of defendant’s girlfriend.
In this appeal, defendant contends: (1) the court committed prejudicial error by denying
his request for a continuance based on the prosecution’s presentation, shortly before trial,
of new forensic test results on two pieces of evidence; (2) the prosecutor committed
prejudicial misconduct during closing argument; and (3) to the extent any portion of the
misconduct argument is deemed forfeited, then defense counsel should be found to have
provided ineffective assistance by failing to timely and properly object. We find no error
and therefore affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Because defendant has not raised a substantial evidence question, we state the
facts briefly and summarize only the material procedural issues.
       In March 2012, defendant was living with his girlfriend, Yancy,1 and her children,
including eight-year-old Y.M. and seven-year-old G.M., in an apartment in Los Angeles.
March 11 was a Sunday, the day Yancy normally went to the laundromat to do laundry.
That morning defendant dropped Yancy off at the laundry as usual and returned to the
apartment. Both Y.M. and G.M. were still in their beds in their room. Defendant went
into the girls’ bedroom, picked up Y.M. and carried her back to his bedroom.
       Defendant made Y.M. lie on her back on his bed, took off her clothes and his, and
got on top of her. He engaged in sexual intercourse with Y.M., and only stopped when
he received a phone call from Yancy. Defendant then ejaculated on Y.M.’s stomach,
wiping the ejaculate off of himself and Y.M. with one of his socks he had thrown on the
floor. He told Y.M. to go back to her room and not say anything to her mother.
       Yancy thought defendant sounded agitated when she called from the laundry, so
when she got home, she asked the girls if something had happened. After being pressed


1      We use the mother’s first name only for the sake of privacy, intending no
disrespect by the informality.


                                             2
by her mother, Y.M. eventually explained what happened, including that defendant had
wiped up the ejaculate with the sock, and G.M. also disclosed an incident of abuse.
Yancy confronted defendant when he got out of the shower. Defendant denied the girls’
story but eventually left the apartment. Yancy called the police. She later looked for and
found the wet sock on the floor of the bedroom she shared with defendant. She put the
sock into a plastic “Ziploc bag” along with Y.M.’s underwear, T-shirt and pants, and
turned the bag over to the police.
       During interviews with the police, as well as rape treatment counselor Nicole
Farrell, Y.M. explained what had happened that morning, and described similar incidents
that occurred on previous Sundays when her mother was doing laundry. G.M. described
an incident of forced oral copulation in the living room. During some of the interviews,
and during their testimony at the preliminary hearing, the girls, particularly G.M., the
younger child, partially recanted or stated some inconsistent facts.
       Defendant was charged by information with three counts: one count of oral
copulation/sexual penetration with a child under 10 years of age, victim G.M. (Pen. Code,
§ 288.7, subd. (b)2), and two counts of sexual intercourse/sodomy with a child under
10 years of age, victim Y.M. (§ 288.7, subd. (a)). Defendant pled not guilty.
       During pretrial proceedings, the prosecution conducted DNA testing on the sock
and Y.M.’s underwear. Defendant’s seminal fluid was confirmed on both items. Neither
the prosecution nor defense had any type of testing performed on the other two items of
clothing from the plastic bag (Y.M.’s T-shirt and pants). There is no dispute the
prosecution’s forensic test results for the sock and the underwear were timely disclosed to
defendant.
       On March 11, 2013, the case was called for trial in the master calendar
department. Before the parties answered ready, the prosecutor apparently advised
defense counsel, off the record, that he had decided to test Y.M.’s T-shirt and pants for



2      All further undesignated section references are to the Penal Code.


                                             3
biological material, and that the report of the results was anticipated to be available
within a couple of days. Both parties then advised the court they were ready to proceed.
However, trial was put over to March 13, because defendant, although in custody, was
not present.3
       Later that day, defense counsel reconsidered the wisdom of his agreement to
answer ready despite the new testing, and filed a written motion requesting a continuance
of the trial to allow for his expert’s consideration of the new test results once they were
received from the prosecutor. On the morning of March 13, 2013, the parties appeared in
the master calendar department and the prosecution again answered ready. Defense
counsel said he was not ready and noted the filing of his motion.
       The master calendar judge inquired of the prosecutor about the nature and status of
the new testing being performed. The prosecutor advised that no DNA tests were going
to be run, only review of the T-shirt and pants for biological material, primarily seminal
fluid. The court denied defendant’s motion, stating that “over defense objection, I’m
deeming you ready.”
       When the parties reported to their assigned trial department, defense counsel
renewed his motion for a continuance. The prosecutor reported that he understood the
testing would be completed by the following day, or Friday, March 15 at the latest. The
court ordered: “So I’ll deny your motion without prejudice. You can raise it again
depending on the results of the test and what you think you may have to do. Maybe what
we should do is resolve this issue before swearing in a panel.” The court and parties then
proceeded with voir dire.
       At the end of the first day of trial, the prosecutor reported that his expert had
completed the serology tests and a written report would be completed Friday. The court
responded: “All right. We’ll go from there. If we have to declare mistrial, if the defense
expert needs substantial time to respond, then we’ll go from there.”


3     The March 11, 2013 minute order states defendant was a “miss-out” so the trial
was continued two days.


                                              4
       The next morning, defense counsel explained a key part of his defense was that,
since all four items of clothing were placed in the same bag by the girls’ mother and
turned over to the police that way, the seminal fluid on the sock contaminated the other
items of clothing. Defendant’s version of what happened was that he had masturbated in
bed, alone, and had wiped himself off with the sock. But if the test results on the other
two items of clothing did not show they also had seminal fluid, that would undermine the
contamination theory, and counsel might proceed differently in opening statement.
       Defense counsel requested a brief continuance until the following Tuesday,
March 19, based on the prosecutor’s representation the report would be provided by
Friday, and the T-shirt and pants would also be provided to his expert that same day for
independent review. Defense counsel argued that since the court had already indicated it
would be dark on Monday, there would be minimal delay for the jurors. The prosecutor
once again confirmed only basic serology tests were being done, not more time-
consuming DNA testing. He also argued the girls’ mother and both girls were in the
courthouse, ready to start with testimony and therefore objected to any continuance.
       The court expressed its desire to avoid having the young victims testify more than
once. Both the prosecutor and defense counsel concurred. The court then ruled: “I’ll
grant the request to recess the trial until Tuesday. What we’ll do is get the phone
numbers of all of the jurors in the event that there has to be a further continuance based
on what you learn from the report tomorrow. You should assume, for planning purposes,
that they will find some biological material. Get your experts in place and prepare any
appropriate orders to have materials delivered to your expert and expedite this
obviously.”
       Trial resumed on Tuesday, March 19. The prosecutor reported that testing had
been completed on Friday as expected, and the report had been immediately turned over
to defendant and his expert. The testing revealed that Y.M.’s T-shirt and pants contained
both seminal fluid and epithelial cells. The two items of clothing were also transported to
the defense expert’s lab on Friday. The prosecutor forwarded the lab notes related to the



                                             5
formal written report to defense counsel and the defense expert on Monday, March 18
shortly after he received them from his lab.
       Defense counsel requested a mistrial, or alternatively a continuance to the
following Monday, explaining that his expert had insufficient time to respond to the new
report, which in turn impacted counsel’s ability to adequately cross-examine the
prosecution’s expert. Specifically, defense counsel said his expert had first received the
lab notes on Monday, not on Friday with the report and the evidence, and his expert had
said the notes were “essential” to his review of the findings.
       The prosecutor adamantly opposed a mistrial, as well as any further continuance,
explaining that the two minor victims were once again in the courthouse ready to
proceed. After allowing some additional argument, the court denied defendant’s request
for a mistrial and the request for another continuance.
       For the remainder of that week, the prosecutor presented the testimony of the
victims, their mother, and the police officers and medical staff that interviewed and
examined the girls. The prosecution witnesses who attested to the serology and DNA
testing of the clothing did not testify until Tuesday of the following week.
       After the prosecution rested, the defense called witnesses, including defendant, but
decided not to call its expert to testify regarding the forensic test results on any of the
items of clothing.
       During the rebuttal portion of the prosecutor’s closing argument, the prosecutor
made several statements which defendant claims amounted to misconduct. We defer a
more detailed discussion of the specific statements to part 2 below.
       The jury found defendant guilty on all three counts. Defendant was sentenced to
67 years to life in state prison. This appeal followed.
                                       DISCUSSION
1.     The Requests to Continue Trial
       Defendant argues the trial court committed prejudicial error by refusing to grant a
continuance of trial to allow his expert time to evaluate the new serology evidence
proffered by the prosecution regarding Y.M.’s T-shirt and pants. We are not persuaded.


                                               6
       The grant or denial of a motion to continue trial rests within the broad discretion
of the trial court. (People v. Strozier (1993) 20 Cal.App.4th 55, 60.) Reversible abuse of
discretion occurs only when the court acts arbitrarily, capriciously or outside the bounds
of reason. (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) “In deciding whether the
denial of a continuance was so arbitrary as to violate due process, the reviewing court
looks to the circumstances of each case, ‘ “particularly in the reasons presented to the
trial judge at the time the request [was] denied.” ’ [Citation.]” (People v. Courts (1985)
37 Cal.3d 784, 791 (Courts).) It is defendant’s burden to establish the existence of an
abuse of discretion. (Strozier, at p. 60; accord, People v. Johnson (1970) 5 Cal.App.3d
851, 859 [whether defendant “affirmatively demonstrated that justice requires a
continuance is a factual matter” and absent “clear abuse of discretion,” a reviewing court
will not disturb the trial court’s finding].)
       Continuances in criminal cases may only be granted on an affirmative showing of
good cause. (§ 1050, subd. (e).) “Motions to continue the trial of a criminal case are
disfavored and will be denied unless the moving party, under . . . section 1050, presents
affirmative proof in open court that the ends of justice require a continuance.” (Cal.
Rules of Court, rule 4.113.) While a trial court should not exercise its discretion to deny
a continuance that would unfairly deprive a defendant of a reasonable opportunity to
prepare a defense (People v. Snow (2003) 30 Cal.4th 43, 70), it is nonetheless not
required to indulge every request for additional time where good cause is not clearly
identified (Courts, supra, 37 Cal.3d at pp. 791-792).
       The record here shows the court correctly considered the multiple relevant factors
in ruling on defendant’s motions. When the parties appeared for trial on March 11, 2013,
defense counsel answered ready. Trial was put over until March 13. Defense counsel,
having reconsidered his decision to answer ready, filed a written motion to continue
pursuant to section 1050, which was heard and denied in the master calendar department
on March 13. The parties were sent out to a trial department that date and defendant
renewed his request. The trial department denied the request without prejudice, and the
case proceeded to voir dire.


                                                7
       On Thursday, March 14, with the prosecution’s report of the new test results
expected the next day, the court granted defendant’s request for a brief continuance until
the following Tuesday morning. The test results, as well as the T-shirt and pants that
were tested, were received by the defense on Friday as anticipated. Defense counsel
sought an additional week-long continuance when trial resumed on Tuesday, March 19,
which the court denied, noting the potential harm and unfairness of further delay to the
minor victims. As it turned out, the prosecution’s DNA and serology evidence was not
presented until the following Tuesday anyway, because the prosecution called the
victims, their mother, investigating officers and rape counselors to testify first.
Defendant was therefore not required to respond or address that evidence for over a
week. Defendant does not explain why that additional time – the amount of time he
requested – was insufficient for his expert to complete his analysis.
       The trial court’s responses on the record indicate a receptiveness to considering
appropriate continuances, even a mistrial, if presented with an explanation why additional
time was needed by the defense expert. But, once the report was received and defendant
had the benefit of a brief continuance, the court properly resolved defendant’s request for
additional time consistent with its statutory mandate to expedite proceedings to the
“greatest degree that is consistent with the ends of justice” (§ 1050, subd. (a)), aware that
not only defendant, but the People, the victims and the witnesses have a statutory right to
an “expeditious disposition.” (Ibid.; see also People v. Doolin (2009) 45 Cal.4th 390,
450 [in resolving motion for continuance, trial court must be mindful of “ ‘ “ ‘whether
substantial justice will be accomplished or defeated by a granting of the motion’ ” ’ ”].)
2.     The Prosecutor’s Statements During Closing Argument
       Defendant contends the prosecutor committed misconduct during closing
argument which prejudicially impacted the jury’s deliberations and verdict. Respondent
contends there was no misconduct, that only one instance of allegedly improper argument
was preserved for appeal by a timely objection, and that, in any event, defendant has not
shown any misconduct or resulting prejudice. Acknowledging, at least in part,
respondent’s forfeiture argument, defendant also casts his claim of misconduct as one of


                                              8
ineffective assistance of trial counsel. We agree with respondent that all but one instance
of improper argument was forfeited by failure to object in the trial court, and that there is
no showing of misconduct. Accordingly, both the misconduct argument, and the related
ineffective assistance argument, fail.
       a.     The prosecutor’s argument
       Defendant challenges various statements made by the prosecutor during the
rebuttal portion of his closing argument. Because our determination of the propriety of
the prosecutor’s argument must be considered in context (People v. Dennis (1998)
17 Cal.4th 468, 522 (Dennis)), we set forth the material portions of the rebuttal argument,
highlighting with italics the statements challenged by defendant.
       “I’m going to be fairly brief. . . . I’m just going to . . . reiterate [a] few points and
send you off to do the rest of your work. I’m going to talk about penetration, how
penetration in this case has been proved. I’m going to talk about [G.M.’s] statements and
sort of how I believe it’s appropriate to sort of look at my burden in this case as opposed
to the defendant’s burden, and I’m going to start there. It’s my burden. I’m not in any
way trying to shift the burden to the defense because it’s my evidence that has to prevail.
       “But this is what you have to believe to find the defendant not guilty in this case.
You have to believe that the girls made up their statements. You’d have to believe that
[Y.M.] was intending to get [defendant] kicked out of the house when she told her mom
that nothing happened to her when she was first confronted. Remember, that was her
first statement to mom. ‘What happened when I was gone?’ ‘Nothing.’ . . . That was
somehow part of the plan.
       “You would have to believe that the defendant – the only way the semen got
anywhere near the defendant’s socks was by his masturbating. You’d have to believe
that, even though he wasn’t really able to give us any details. . . . .
       “You’d have to believe that both girls were able to sort of put together a package
of lies and tell them repeatedly to multiple people over multiple days and subject
themselves to medical examinations over multiple days. You would have to believe the
defense expert’s explanation of the injuries found on [Y.M.’s] genitalia.


                                               9
       “I don’t often argue that a witness should be wholly disregarded. I honestly don’t.
The defendant, I believe much of his testimony. . . . There is a lot of stuff in his
statement that is believable.
       “I’ll argue to you that you should completely disregard the defense medical
expert, and I’m going to argue that because – not because of her educational background,
but she seemed to be agitated by that, and I apologize. I kind of used that against her.
Because she was unwilling to accept that there was any chance that the evidence upon
which she relied was different than – materially different, something that would make a
difference than the other nurse that was able to see the child . . . even after she admitted
that some of the images she had to look at were blurred. I’d urge you to reject her
testimony because she wouldn’t even concede that blurry photos may not provide exactly
the same amount of detail that you’d get from looking at something in real life. . . .
       “. . . . So the defense actually does a really good job at trying to poke holes in the
evidence that’s been presented to you. I don’t believe, and I am arguing to you that you
should not believe that [sic] what their arguments are.
       “[G.M.’s] statements were difficult, and I don’t believe those things happened
either. I don’t want to believe that the defendant sodomized her and duct taped her
mouth closed when she screamed. I don’t want to believe that.
       “The important part for you is that’s not something you have to make a decision
on. I mean, you saw. They went and did a search warrant at their old house where she’s
sort of describing her first statement to Ms. Farrell about what happened, about how there
was this piece of wood he used to lock the door. You saw the photos of the door with a
piece of wood on it. I don’t know. I don’t want to believe it happened, and it’s not
something for you to decide. But even though I don’t want to believe it happened,
unfortunately I believe it did, and I believe it did because all of the details she gave. I
believe it did because Ms. Farrell said the best way we get accurate information from a
child of this age is to just allow them to talk. She was giving them an opportunity, and
she did.” (Italics added.)
       At this point, defense counsel objected and the following colloquy occurred.


                                              10
       “[DEFENSE COUNSEL]: Your Honor, there’s an objection – I’m sorry
Mr. Reinert [(the prosecutor)] – about what Mr. Reinert believes the evidence –
       “THE COURT: Yes. The jurors are reminded the belief of either counsel is not
relevant. [¶] Why don’t you adjust your wording, Mr. Reinert.”
       The prosecutor then concluded that portion of his rebuttal and moved on to
discussing the evidence supporting a finding of penetration within the meaning of
section 288.7. No further objections were made.
       b. Forfeiture
       “When a defendant believes the prosecutor has made remarks constituting
misconduct during argument, he or she is obliged to call them to the court’s attention by a
timely objection. Otherwise no claim is preserved for appeal.” (People v. Morales
(2001) 25 Cal.4th 34, 43-44 (Morales); accord, People v. Turner (2004) 34 Cal.4th 406,
432 [failure to object or seek court’s admonition to numerous comments by prosecutor
vouching for the credibility of expert witnesses and expressing his personal admiration
for their integrity resulted in forfeiture of claim on appeal].) Forfeiture is justified
because the failure to timely object to improper argument deprives the trial court of an
“opportunity to consider the objection and give appropriate admonitions when the alleged
misconduct first occur[s], or to prevent additional remarks of a similar nature from being
made.” (People v. Bemore (2000) 22 Cal.4th 809, 846.)
       Respondent contends, and defendant concedes, as he must, that an objection was
only made to the statements regarding the prosecutor’s personal beliefs about the
credibility of G.M. (the last of the italicized statements above). As for the other italicized
statements challenged by defendant, appellate review of those statements was forfeited by
defendant’s failure to timely object in the trial court and to seek an appropriate
admonition of the jury by the trial court. (Morales, supra, 25 Cal.4th at pp. 43-44; see
also 5 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Trial, § 771, p. 1198
[prosecutor’s injection of personal belief or opinion about credibility of witness is the
type of error “often held harmless or waived by failure to object or cured by the court’s
admonition”].) However, because defendant has also raised a related ineffective


                                              11
assistance claim, we consider the merits of defendant’s misconduct claim and conclude
that none of the challenged statements amount to prosecutorial error or misconduct.
       c. Analysis of the challenged statements
       Our Supreme Court has summarized the standards for evaluating a claim of
prosecutorial misconduct as follows. “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 denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to persuade
either the trial court or the jury. Furthermore, and particularly pertinent here, when the
claim focuses upon comments made by the prosecutor before the jury, the question is
whether there is a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th at
p. 44; accord, People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) In assessing the
prosecutor’s argument, we must not lose sight of the “presumption that ‘the jury treated
the court’s instructions as statements of law, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade.’ [Citation.]” (Morales, at p. 47.)4
       As to the first set of italicized statements set forth above, defendant argues they
were objectionable and amounted to misconduct because they misstated the burden of
proof, improperly suggesting to the jury that it had an all-or-nothing choice to either
believe both of the young girls completely, or reject all of their testimony, instead of
considering the evidence as to each charge separately. Reading the prosecutor’s



4       Before argument began, the court instructed the jury, in relevant part, that they
alone “decide what the facts are . . . based only on the evidence that has been presented,”
that “[i]f you believe that the attorneys’ comments on the law conflict with my
instructions, you must follow my instructions,” and that “[n]othing that the attorneys say
is evidence. In their opening and closing arguments, the attorneys discuss the case, but
their remarks are not evidence.” (CALCRIM Nos. 200 & 222.) The jury was duly
instructed of its duty to exalt the evidence over the argument of counsel.


                                             12
argument in context, we cannot agree that the challenged statements misdirected the jury
as to the relevant burden of proof.
       Nothing in the prosecutor’s argument expressly or impliedly exhorted the jurors to
only consider both victims’ statements jointly in their totality, or to otherwise disregard
the specific elements and victims as to each separate count. The argument reflects the
prosecutor’s attempt to respond to the version of events offered by the defense, namely
that defendant had not touched either of the girls, along with the related inference that the
girls therefore had made up their stories or were both being coached to lie. The
prosecutor properly argued the jury should consider which witnesses were more credible.
       Moreover, the jury was correctly instructed on the law regarding the burden of
proof, including CALCRIM No. 220. The prosecutor also repeatedly noted in his
argument that he bore the burden of proof beyond a reasonable doubt. And, immediately
upon conclusion of the rebuttal argument, the trial court completed its instructions to the
jury, starting with the following. “Ladies and gentlemen, each of the counts charged in
this case is a separate crime. You must consider each count separately and return a
separate verdict for each one.” On such a record, we cannot find that anything in the
prosecutor’s rebuttal argument regarding the burden of proof rendered the trial
fundamentally unfair or constituted a deceptive or reprehensible attempt to mislead the
jury. (Morales, supra, 25 Cal.4th at p. 44.)
       As to the second set of italicized statements regarding the credibility of the
defense expert, defendant argues the prosecutor improperly injected his own opinion
about the expert based on information outside the record, insinuating that based on his
experience in other trials he had never found an expert’s credibility so wanting as to
argue to a jury that his or her testimony should be wholly disregarded. Once again, we
find no error or misconduct.
       A “prosecutor’s reference to his or her own experience, comparing a defendant’s
case negatively to others the prosecutor knows about or has tried, is improper. [Citation.]
Nor may prosecutors offer their personal opinions when they are based solely on their
experience or on other facts outside the record.” (People v. Huggins (2006) 38 Cal.4th


                                               13
175, 206-207 (Huggins).) But, our review of the record discloses no such improper
comment by the prosecutor. The first part of the statement to which defendant finds fault
(“I don’t often argue that a witness should be wholly disregarded”) was followed by a
discussion of testimony by defendant (not the expert), with the prosecutor pointing out
that there were portions of defendant’s testimony that were credible.
       The prosecutor then moved on to the defense expert, urging the jury to find, based
on the evidentiary record, that the expert’s testimony should be disregarded because she
lacked credibility. It was permissible for the prosecutor to so argue. “The prosecutor
may argue any inference from the evidence. [Citation.] Accordingly, if the prosecutor’s
expression of belief or opinion is based on that inference, rather than personal belief or
opinion, it is entirely proper.” (5 Witkin & Epstein, supra, Trial, § 775, p. 1202; accord,
People v. Adcox (1988) 47 Cal.3d 207, 259 (Adcox) [alleged statement of personal belief
by prosecutor was not misconduct because “he was ‘merely presenting his views of
deductions and inferences warranted by the evidence’ ”].)
       The prosecutor’s assertion the defense expert should not be believed was tied to
his assessment of her testimony, specifically her refusal to accept the possibility that her
opinions could have been impacted by the fact she did not personally examine the girls as
the prosecution expert had, but rather, based her opinions solely on review of the records
and oftentimes blurry photographs and video. Thus, the prosecutor’s opinion of the
defense expert, as expressed to the jury, was tethered to the evidence and was therefore
proper. Moreover, “[h]arsh and vivid attacks on the credibility of opposing witnesses are
permitted, and counsel can argue from the evidence that a witness’s testimony is
unsound, unbelievable, or even a patent lie.” (Dennis, supra, 17 Cal.4th at p. 522.)
       Finally, as to the last set of italicized statements regarding the credibility of G.M.,
defendant argues the prosecutor engaged in an improper form of vouching by repeatedly
stating his personal belief about the believability of G.M.’s testimony, despite some of
her inconsistent statements and partial recantations. There was no improper vouching or
other misconduct. “The general rule is that improper vouching for the strength of the
prosecution’s case ‘ “involves an attempt to bolster a witness by reference to facts outside


                                              14
the record.” ’ [Citation.]” (Huggins, supra, 38 Cal.4th at p. 206.) The argument
regarding G.M.’s credibility was founded on the evidentiary record related to her
testimony. It did not constitute misconduct under federal or state law.
       d. Ineffective assistance claim
       Defendant argues, in the alternative, that if this court finds the misconduct
argument forfeited, then the court should find defendant’s trial counsel rendered
ineffective assistance by failing to object to all of the prosecutor’s allegedly objectionable
statements. The burden is on defendant to establish ineffective assistance by a
preponderance of the evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
A defendant “must show both that trial counsel failed to act in a manner to be expected of
reasonably competent attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in the absence of counsel’s
failings.” (People v. Cudjo (1993) 6 Cal.4th 585, 623, citing Strickland v. Washington
(1984) 466 U.S. 668, 687-696.) On direct appeal, this burden is stringent. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
       As explained above, we have concluded that none of the statements challenged by
defendant amounted to error or misconduct by the prosecutor. Trial counsel cannot be
deemed to have provided ineffective assistance for failing to object to proper argument.
In any event, the failure to object to evidence or argument “ ‘rarely constitutes
constitutionally ineffective legal representation . . . .’ [Citation.]” (Huggins, supra,
38 Cal.4th at p. 252; accord, People v. Ghent (1987) 43 Cal.3d 739, 772-773 [rejecting
contention counsel’s failure to object during prosecutor’s closing argument amounted to
ineffective assistance because counsel “may well have tactically assumed that an
objection or request for admonition would simply draw closer attention to the
prosecutor’s isolated comments”]; People v. Harris (2008) 43 Cal.4th 1269, 1290 [same];
Adcox, supra, 47 Cal.3d at p. 261 [same].) Defendant has not established any basis for
finding ineffective assistance of his trial counsel.




                                              15
                                    DISPOSITION
      The judgment of conviction is affirmed.


                                                       GRIMES, J.


      We concur:
                    FLIER, Acting P. J.




                    KUSSMAN, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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