People v. Alvarado-Cisneros CA1/5 ( 2020 )


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  • Filed 8/25/20 P. v. Alvarado-Cisneros CA1/5
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,
    Plaintiff and Respondent,                               Case No.: A158059
    v.                                                                (San Mateo County Super. Ct.
    MARCO ANTONIO ALVARADO-                                           No. SF399919A)
    CISNEROS,
    ORDER MODIFYING OPINION
    Defendant and Appellant.
    [NO CHANGE IN JUDGMENT]
    BY THE COURT:
    It is ordered that the opinion filed herein on August 24, 2020, be
    modified as follows:
    On page 1, the caption should reflect the San Mateo County Superior
    Court Case Number as: SF399919A.
    The modification does not change the judgment
    Dated: _______________                                     ___________________________, Acting P.J.
    1
    Filed 8/24/20 P. v. Alvarado-Cisneros CA1/5 (unmodified opinion)
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
    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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    THE PEOPLE,
    Plaintiff and Respondent,                                   A158059
    v.
    MARCO ANTONIO ALVARADO-
    CISNEROS,                                                               (San Mateo County
    Defendant and Appellant.                                    Super. Ct. No. SF39919A)
    Eighteen-month old Dante M. died from head injuries which
    manifested while he was in the care of his mother’s boyfriend, appellant
    Marco Antonio Alvarado-Cisneros. Appellant was convicted following a jury
    trial of assault on a child causing death and involuntary manslaughter as a
    lesser included offense of murder. (Pen. Code, §§ 273ab, 192, subd. (b).)1 He
    was sentenced to 25 years to life on the child assault count, with sentence on
    the involuntary manslaughter count stayed under section 654, and now
    appeals.2 Appellant argues the prosecutor committed prejudicial misconduct
    1
    Further references are to the Penal Code.
    Appellant also plead guilty to several counts arising from crimes
    2
    committed against Dante’s mother that occurred after Dante’s death: two
    counts of kidnapping under section 207, subdivision (a), one count of first
    degree residential robbery under sections 211 and 212.5, three counts of
    inflicting corporal injury on a spouse or cohabitant under section 273.5,
    1
    during closing argument and urges us to remand the case for a hearing on his
    ability to pay fines and fees. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    A. Family History
    Dante was born in 2013 and is the only child of Maria N. and her
    former husband Jesus M. His head was somewhat abnormal, with a flat spot
    and an unusually large circumference (in the 99th percentile), conditions
    which concerned Maria and were the subject of discussions with Dante’s
    doctors. Dante was delayed in his ability to walk, and by 18 months still
    needed to hold on to furniture to assist him. Maria took Dante to the
    emergency room three times before he was five months old reporting that he
    was turning blue; he was released after doctors were unable to diagnose
    anything. He was also taken to the hospital once in April 2014 with
    complaints of a cough, fever and congestion. Despite this, Dr. Tricia Tayama,
    a pediatrician who later reviewed Dante’s medical records, described his
    early history as unremarkable. She noted that a flat head is a common
    consequence of the current recommendation that babies sleep on their back
    and that Dante’s head circumference, although large, had been stable.
    Following some incidents of domestic violence, Maria and Jose
    separated in March or April of 2014 and Jesus left for Mexico. Shortly
    afterwards, appellant moved in with Maria.
    For a period of time, Dante lived with and was primarily cared for by
    his grandmother (Maria’s mother) at her own apartment. When Maria took
    Dante back into her home, the grandmother did not want him to go as she did
    subdivision (a) and one count of misdemeanor false imprisonment under
    section 236. He received an aggregate sentence of seven years four months
    on these counts, consecutive to his 25-year-to-life term. This aspect of the
    judgment is not at issue on appeal.
    2
    not want him to be with appellant. Appellant told the grandmother he would
    “hurt [her] where it hurts the most.”
    Maria’s sister, Estrella G., had helped her mother care for Dante and
    never saw any strange injuries on his body. She never saw him biting
    himself when she cared for him and never saw bite marks on his body. Dante
    would move his hands up and down when he wanted something, and on one
    occasion when he did this appellant told him “no hands” and hit Dante’s
    hands 10 or 15 times. When Estrella told appellant he had no right to hit
    Dante, appellant responded that she and her mother had spoiled him and
    Dante could develop a habit and he might start biting his hands. Appellant
    once put Dante in the bedroom and told him, “if you are going to cry, you are
    going to cry for a reason.”
    With a couple of exceptions, Maria never noticed any unusual bruises
    or marks on Dante’s body. One exception occurred on a day when she took
    Dante to the San Jose flea market with appellant, his five-or six-year-old son
    Sebastian, and some other people. When Maria returned to the group after
    leaving to go to the bathroom, Sebastian pointed to Dante’s upper arm and
    said something had happened. Maria saw a mark on Dante’s arm that later
    started to look like a bite. When she mentioned it to appellant, he said
    maybe Dante had bitten himself. Another exception occurred when she was
    changing Dante’s diaper and saw a long red mark on his leg.
    B. The Incident
    Maria worked evenings for a janitorial service. On August 12, 2014,
    she spent the day with Dante and he seemed in good health. Maria watched
    appellant’s son Sebastian while appellant slept and the two boys ate
    breakfast and then played together. In the afternoon, the family went to
    Safeway. At about 5:00 p.m., Maria changed into her uniform and, as was
    3
    her routine, gave Dante a sippy cup of milk and put him down in his crib for
    his evening nap. She then went to work and left Dante in appellant’s care.
    She saw appellant’s mother on the way out as she came to pick up Sebastian.
    Shortly after 8:00 p.m., appellant called 911. The responding
    paramedic arrived to find Dante lying on his back on the floor, not moving
    and not responding to stimuli. Appellant said he had been watching Dante at
    home, that Dante began screaming “nonstop,” that appellant went to the
    closet to get supplies to change Dante’s diaper and that when he turned back,
    Dante was rigid with his arms clenched. Appellant denied that Dante had
    suffered any recent traumatic injury. There was bruising on Dante’s arm
    that appeared to be bite marks, and appellant told the paramedics they were
    self-inflicted. Appellant’s mother was at the apartment when the paramedics
    arrived.
    Appellant gave essentially the same version of events to a detective
    that responded to the scene as he did to the paramedics. He also said that
    Dante usually bit himself, but had not done so that day. Maria arrived home
    as the ambulance was departing, having received a call to tell her that Dante
    had fainted. Dante was taken to the emergency room and then to the Lucille
    Packard Children’s hospital for surgery. Dante died on the operating table.
    C. Prosecution’s Medical Experts
    The prosecution called Dr. Samuel Cheshier, the pediatric
    neurosurgeon who performed emergency surgery on Dante at approximately
    11:00 p.m. on the night of the incident. He testified that when he received
    the call, Dante was comatose but not quite brain-dead. The CT scan showed
    a “very large blood clot inside [Dante’s] skull, but outside his brain, in a space
    we call the subdural.” The neuroradiologist who had reviewed the CT scan
    before the surgery (Dr. Patrick Barnes) had indicated in his report that he
    4
    read the scan to show an acute subdural hematoma but he “could not rule out
    chronic” based on the image. Dr. Cheshier said that was a common phrase
    used in medicine to make sure nothing is overlooked, and explained that both
    a hyperacute bleed, which is actively bleeding, and a chronic bleed, which he
    defined as at least two weeks old, may appear the same on a CT scan.
    Observations made during surgery can rule out a chronic bleed.
    Dr. Cheshier performed a left hemicraniectomy, which involved making
    a large incision on Dante’s head to expose the skull and removing the entire
    left side of the skull. He found a subdural hematoma so large it pushed the
    brain over to the other side of the skull. He observed an acute bleed,
    meaning it had happened that day, and hyperacute bleeding, meaning it was
    actively bleeding. Blood was spurting from the sagittal sinus, a very large
    vein in the middle of the brain that neurosurgeons are loathe to deal with
    because if injured it is difficult to repair and if the surgeon sacrifices the vein
    the patient usually dies. Dr. Cheshier had no doubt that Dante’s subdural
    hematoma was hyperacute because he saw it when he opened the skull.
    Once he opened Dante’s skull, Dr. Cheshier was able to rule out the
    possibility of a chronic bleed, something which could not have been done from
    reading the CT scan alone. Chronic bleeds are very rare in 18-month-old
    children in any event: “Those are things that . . . elderly people get.”
    Another indication the bleed was not chronic was that once the blood was
    removed from the surface of the brain, the brain went back into position; if
    the bleed had been chronic, it would have remained relaxed because it would
    have had time to adjust to the pressure. Dr. Cheshier got control of the
    bleeding using clotting material (which showed that Dante had the ability to
    clot normally) and removed the hematoma from the surface of the brain.
    5
    After the hematoma was removed, Dante’s blood pressure dropped and his
    condition began to spiral down until he was declared dead at 11:41 p.m.
    An autopsy performed by Dr. Thomas Rogers revealed that a number of
    bruises had been inflicted before death, including three marks that appeared
    to be bite marks on Dante’s wrist, arm and cheek, six bruises on each leg, and
    seven bruises on his torso. Bruises on the left side of Dante’s head might
    have occurred during surgery, but bruises on the right side of his head were
    not in the surgical area. All the bruises on Dante’s body were in hemorrhage,
    and from the amount of iron present in the bruises, they could have been
    inflicted from a few hours prior to death to three days earlier. Dante had no
    trauma to his inner organs nor skull fractures.
    The area of hemorrhage on Dante’s brain was consistent with blunt
    force trauma. Dr. Rogers concluded that the cause of death was blunt
    injuries to the head. A short fall onto a hard surface could be blunt force
    trauma. Dr. Rogers could not say whether the injuries were accidental or
    intentional.
    Dr. Peter Egbert was an ophthalmologist and pathologist who
    examined Dante’s eyes after his death. He discovered a hemorrhage in the
    retina and around the optic nerve, of a type seen almost exclusively in
    abusive injuries. He had not had any patients who had suffered retinal
    hemorrhages after a short fall. A slow increase in pressure in the brain
    would not cause a retinal hemorrhage. The hemorrhage seen in Dante’s eyes
    was consistent with a subdural hematoma and consistent with a
    nonaccidental injury.
    Dr. Hannes Vogel, a neuropathologist, examined Dante’s brain after his
    death. He found bleeding in the arachnoid membrane covering the brain,
    diffuse cerebral edema (swelling), an intracranial hemorrhage, a swollen and
    6
    distended sagittal sinus, and diffuse axonal injury. In cases of severe head
    trauma, the axons, which are the wiring of the brain, get sheared or torn.
    The injuries Dante received were consistent with blunt force injury, and a
    very severe force would have been required—a fall from a three story
    building, for example, or a high speed car accident. The axonal injury was
    consistent with rotational force, which could also explain the eye injuries
    noted by Dr. Egbert. The lack of a skull fracture did not affect Dr. Vogel’s
    opinion as it was well known that diffuse axonal injuries and subdural
    hematomas can occur without fractures. The amount of force necessary to
    account for Dante’s injuries would render him unconscious immediately and
    could have caused a seizure.
    Dr. Tayama, a pediatrician who specialized in the area of child abuse,
    reviewed Dante’s medical records for the purpose of forming an opinion about
    his death. She did so at the request of the county’s child protective services
    agency, because the disposition of a related child was at issue (appellant and
    Maria’s son, who was born after Dante died). Dr. Tayama believed the
    injuries to his eyes and brain were consistent with shaking or forceful impact.
    A short fall two to three weeks prior to his death would not account for his
    injuries and would probably not account for more than a bruise. Some of
    Dante’s bruises were concerning because they were not in a location one
    would expect from a fall. There was no evidence of hydrocephalus.
    D. Defense Evidence
    Appellant’s defense at trial was that the prosecution had not carried its
    burden of proving that Dante’s injuries were caused by an assault while he
    was in appellant’s care. Instead, there was a reasonable doubt regarding
    appellant’s guilt because there was evidence that Dante’s injuries could have
    7
    been the product of a bleed in the brain that was caused by a preexisting
    medical condition and/or prior falls.
    The defense elicited testimony that during the investigation into the
    cause of Dante’s death, Maria revealed a history of prior short falls. A week
    or two before his death, Dante fell down the front concrete steps of their
    apartment when Maria was taking out the garbage. He received a scratch on
    the right side of his nose and a medium bump on his forehead. Another time,
    he was crawling on a stack of laundry when he fell from the top of it and bled
    from his nose. On another occasion when Maria was at her older sister’s
    house, Dante fell from a chair at the kitchen table as he tried to grab a falling
    toy. When Maria was still with Dante’s father, Jesus, Dante fell from the bed
    onto a tile floor while she was looking for some papers. Dante never lost
    consciousness, got sleepy or threw up after these prior falls.
    Maria told investigating detectives that Dante might have died as a
    result of these earlier falls. She thinks a detective told her it was either her
    or appellant who was responsible for Dante’s death. Appellant said for many
    months that Dante’s death was an accident and he and his mother told Maria
    not to trust the police during the investigation. Maria was pregnant with
    appellant’s child and afraid the authorities would take the baby away from
    her (which they did). On Facebook, Maria told an acquaintance, “since Dante
    had a blood clot on his brain and he fell down on me when I had him they
    think we are lying to them and according to them I or Marco are suspected of
    giving him a blow to the head.” She continued, “Dante didn’t even know how
    to walk. He would hit himself all the time. And that day when he fell down,
    he fell down from the stairs at the entrance to where I was living before. And
    he hit his head and he got a real huge bump on his forehead and blood came
    out of his nose. I think the clot was caused by that blow. He fell down about
    8
    three times in a short time. Two in the house and another at my sister’s
    house and all three blows were in the head. But those Goddamn people don’t
    understand that accidents happen.”
    The defense also presented the testimony of experts to contradict the
    prosecution’s evidence that Dante’s injuries could not have been caused by
    the falls described by Maria or by a medical condition that also resulted in his
    large and/or flattened head. Dr. Patrick Barnes, the pediatric
    neuroradiologist who performed the CT scans on Dante when he was brought
    to the hospital, was called as a defense witness and reported a mixed-density
    hemorrhage to the brain, with some of the bleed being hyperacute and some
    being three hours to seven days old. Had Dante been stable enough for an
    MRI, they could have more accurately identified the time of the bleed. Dr.
    Barnes believed the doctors should have looked into whether Dante had a
    condition that predisposed him to his injuries. It was impossible to tell
    whether the axonal injury was due to trauma or to a lack of blood flow such
    as what happens when one has a stroke. A big head can predispose a child to
    hemorrhage either spontaneously or with minor trauma.
    In Dr. Barnes’s opinion, Dante was not developing normally because he
    could not yet walk unassisted; a male who could only say a few words at 18
    months is cognitively delayed. Photographs of Dante show the left eye
    turning in, which could be a sign of increased cranial pressure. A short fall of
    three to six feet is sufficient to produce a subdural hematoma. Dante’s
    subdural hematoma could have been caused by his prior falls, which in turn
    could have resulted in a slow bleed. Children with brain bleeds can present
    normally for days and then spontaneously become unconscious.
    Dr. Jan Leetsma was called as the defense expert in neuropathology.
    Dante’s head circumference caused him concern, as did the flattened head.
    9
    Sixth nerve palsy is caused by pressure in the skull, and Dante’s eyes were
    indicative of this because photographs of him taken before his death showed
    them to be turned in.3 Dante’s prior falls could have caused a subdural
    hematoma, and it was not realistic to think his injuries could only be caused
    by a high velocity accident or a high fall. There was evidence of an axonal
    injury but not from trauma. It was possible Dante was beaten but one would
    expect to see a skull fracture. There was a neomembrane that indicated an
    old injury. The injury to the sagittal sinus could have been torn during
    surgery.
    E. Rebuttal
    Dr. Terri Haddix is a neuropathologist called as a rebuttal witness.
    She testified that Dante was not hydrocephalic, and that his brain filled due
    to trauma. A child would not have a slow bleed of the brain or a slow leak of
    the sagittal sinus and not show symptoms. Some of his axonal injuries were
    due to trauma and some were due to the lack of oxygen, but they all
    originated in the same traumatic event. His symptoms were all consistent
    with the infliction of trauma.
    DISCUSSION
    A. Prosecutorial Misconduct
    Appellant argues the prosecutor made a number of statements during
    closing argument that attacked defense counsel’s integrity, injected his own
    personal views into the case, improperly vouched for prosecution witnesses
    and resorted to emotional appeals. He contends that these statements
    constituted prejudicial prosecutorial misconduct requiring reversal, and that
    3Dr. Cheshier testified that this condition is diagnosed after a very
    detailed neurological examination. In his opinion, it would be malpractice to
    make a diagnosis based only on a photograph.
    10
    defense counsel provided ineffective assistance to the extent she failed to
    object. We do not agree that the remarks complained of amounted to
    misconduct, and in any event, counsel forfeited all but one of his challenges in
    failing to object. He cannot prevail on an alternative theory of ineffective
    assistance of counsel when counsel may have had a tactical reason in failing
    to object and prejudice was not proven.
    1. Challenged Argument
    Appellant identifies several comments by the prosecutor as being
    problematic. The prosecutor referred to the cross-examination of Dr.
    Tayama, a prosecution expert, as being by “the defense attorney” and
    suggested that questions about whether Dante’s head could be from parental
    neglect spoke to “the ceaselessness, to the insincerity of the defense’s attempt
    to deflect, to find something, anything . . . to explain away this guy’s assault
    on this defenseless child.” The prosecutor also argued that testimony about
    Maria’s statement on Facebook about the police wanting someone to be guilty
    was made just to “dirty her up” and “made [her] look bad and that is really
    shady.” According to the prosecutor, the defense was “in a sense” blaming
    Dante for his own death by focusing on his history of falls.
    Appellant complains the prosecutor referred to the defense “still
    try[ing] to create all this evidence of [a] big head . . . as being something
    related to how he died. We know it’s not.” He notes that the prosecutor
    described Dr. Leetsma as being part of the “deflection that they engaged in to
    find some other excuse for the evidence,” and suggested in his testimony that
    Dr. Cheshier might have cut the sagittal sinus during surgery as “almost
    uncomfortable. It was uncomfortable.” The prosecutor described Dr.
    Cheshier as a skilled surgeon and argued it was “outrageous, and it is
    shameful, shameful” to “impugn the capability and honesty of a surgeon like
    11
    Dr. Cheshier. That is shameful.” The prosecutor argued that to suggest the
    surgeon who was trying to save Dante’s life actually caused the bleed to the
    sagittal sinus was a “conspiracy.”
    Appellant argues the prosecution improperly attacked the defense
    witnesses Drs. Barnes and Leetsma by talking about what they were trying
    to “sell” the jury. He notes that the prosecutor attacked Dr. Barnes for his
    testimony suggesting Maria should have been concerned about Dante’s prior
    fall from a pile of laundry and said that testimony was “shameful. That is a
    shameful statement to make of the state of the evidence in this case.” And
    the prosecutor suggested Dr. Barnes had “sandbagged” the prosecution by
    testifying beyond what was in his two-page report, stating that was
    “inherently unfair and inherently unprofessional.” Defense counsel only
    objected to the last comment. In response to the defense objection that this
    was improper argument, the court advised the jury, “Comments during
    arguments by counsel are up to the [jury] to take them as you wish.”
    2. General Principles
    “Prosecutorial misconduct involves the use of deceptive or
    reprehensible methods in an effort to attempt to persuade the jury (People v.
    Hill (1998) 
    17 Cal.4th 800
    , 819 (Hill) [misconduct violating state
    Constitution]) or actions so egregious as to infect the trial with unfairness
    (People v. Gionis (1995) 
    9 Cal.4th 1196
    , 1214 [(Gionis)] [misconduct violating
    federal Constitution]).” (People v. Carter (2003) 
    30 Cal.4th 1166
    , 1207.) Our
    focus is on the effect of the action on the defendant, not on the intent or bad
    faith of the prosecutor. (People v. Crew (2003) 
    31 Cal.4th 822
    , 839.)
    When the alleged misconduct consists of remarks to the jury, “ ‘the
    defendant must show a reasonable likelihood the jury understood or applied
    the complained-of comments in an improper or erroneous manner.
    12
    [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
    drew the most damaging rather than the least damaging meaning from the
    prosecutor’s statements. [Citation.]’ ” (People v. Brown (2003) 
    31 Cal.4th 518
    , 553–554.) Generally, “ ‘ “ ‘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.’ ” ’ ” (Hill, 
    supra,
     17 Cal.4th at p. 819.)
    “ ‘ “ ‘A prosecutor may “vigorously argue his case and is not limited to
    ‘Chesterfieldian politeness’ ” [citation], and he may “use appropriate
    epithets. . . .” ’ ” ’ [Citation].” (Ibid.) “To demonstrate misconduct, we must
    view the statements in the context of the argument as a whole.” (People v.
    Dennis (1998) 
    17 Cal.4th 468
    , 522.)
    One example of prosecutorial misconduct during closing argument is
    disparaging opposing counsel. (Gionis, 
    supra,
     9 Cal.4th at p. 1215.) Another
    brand of misconduct involves vouching for the strength of the prosecution’s
    case by invoking the prosecutor’s personal prestige, reputation, or depth of
    experience, or the prestige or reputation of the office, in support of it. (People
    v. Huggins (2006) 
    38 Cal.4th 175
    , 206–207 (Huggins).) Prosecutors also may
    not offer personal opinions regarding the evidence that are based on facts
    outside the record. (Id. at p. 207.) And they may not appeal to the jury’s
    passion or prejudices: “It is, of course, improper to make arguments to the
    jury that give it the impression that ‘emotion may reign over reason,’ and to
    present ‘irrelevant information or inflammatory rhetoric that diverts the
    jury's attention from its proper role, or invites an irrational, purely subjective
    response.’ ” (People v. Redd (2010) 
    48 Cal.4th 691
    , 742 (Redd).)
    “To preserve a prosecutorial misconduct claim for appeal, the defendant
    ‘ “must make a timely and specific objection and ask the trial court to
    13
    admonish the jury to disregard the impropriety” ’ unless doing so would be
    futile or an admonition would not cure the harm.” (People v. Whalen (2013)
    
    56 Cal.4th 1
    , 52.) Failure to make a timely objection generally forfeits the
    claim. (Ibid,)
    “ ‘A defendant whose counsel did not object at trial to alleged
    prosecutorial misconduct can argue on appeal that counsel’s inaction violated
    the defendant’s constitutional right to the effective assistance of counsel.’ ”
    (People v. Centeno (2014) 
    60 Cal.4th 659
    , 674.) To prevail on a claim of
    ineffective assistance of counsel, a defendant must show trial counsel’s
    performance was deficient because it fell below an objective standard of
    reasonableness under prevailing professional norms and those deficiencies
    resulted in a “reasonable probability that, but for counsel's unprofessional
    errors, the result of the proceeding would have been different.” (Strickland v.
    Washington (1984) 
    466 U.S. 668
    , 688, 694; accord, Centeno, at pp. 674, 676.)
    “ ‘Unless a defendant establishes the contrary, we shall presume that
    “counsel’s performance fell within the wide range of professional competence
    and that counsel’s actions and inactions can be explained as a matter of
    sound trial strategy.” ’ [Citations.] When the record on direct appeal sheds
    no light on why counsel failed to act in the manner challenged, defendant
    must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s
    act or omission. [Citations.]’ [Citation.] ‘[T]he decision facing counsel in the
    midst of trial over whether to object to comments made by the prosecutor in
    closing argument is a highly tactical one . . . . [Citations],’ and ‘a mere failure
    to object to evidence or argument seldom establishes counsel’s
    incompetence[.]’ ” (Centeno, supra, 60 Cal.4th at pp. 674–675.) If there is “no
    sound legal basis for objection, counsel’s failure to object to the admission of
    the evidence cannot establish ineffective assistance.” (People v. Cudjo (1993)
    14
    
    6 Cal.4th 585
    , 616; People v. Jackson (2016) 
    1 Cal.5th 269
    , 349; People v.
    Weaver (2001) 
    26 Cal.4th 876
    , 925–926.)
    3. The Prosecution Did Not Denigrate Counsel or Vouch for Witnesses
    Appellant complains that the prosecutor impermissibly denigrated
    defense counsel by characterizing her cross-examination of Dr. Tayama as
    insincere and an attempt to deflect, and by stating that it was “really shady”
    for defense counsel to present evidence of Maria’s statements to the police
    about Dante’s prior falls. The prosecution’s comments were strong, but were
    focused upon counsel’s actions in examining witnesses and not on counsel’s
    integrity. (People v. Pearson (2013) 
    56 Cal.4th 393
    , 432; Huggins, 
    supra,
     38
    Cal.4th at p. 207 [not misconduct for prosecutor to argue defense counsel
    tried to “smoke one past us”]; People v. Marquez (1992) 
    1 Cal.4th 553
    ,
    575–576 [no misconduct in referring to defense as “smokescreen”].)
    Our Supreme Court has made clear that “wide latitude” is the standard
    applied to a prosecutor’s comments on defense counsel’s tactics and factual
    accounts: “It is generally improper for the prosecutor to accuse defense
    counsel of fabricating a defense [citations], or to imply that counsel is free to
    deceive the jury [citation]. Such attacks on counsel’s credibility risk focusing
    the jury’s attention on irrelevant matters and diverting the prosecution from
    its proper role of commenting on the evidence and drawing reasonable
    inferences therefrom. [Citations.] [¶] Nevertheless, the prosecutor has wide
    latitude in describing the deficiencies in opposing counsel’s tactics and factual
    account. . . . Misconduct claims also have been rejected . . . where the
    prosecutor criticizes the defense theory of the case because it lacks
    evidentiary support.” (People v. Bemore (2000) 
    22 Cal.4th 809
    , 846.)
    Appellant also complains that the prosecutor vouched for Dr. Cheshier.
    We disagree. “Prosecutorial assurances, based on the record, regarding the
    15
    apparent honesty or reliability of prosecution witnesses, cannot be
    characterized as improper ‘vouching,’ which usually involves an attempt to
    bolster a witness by reference to facts outside the record.” (People v. Medina
    (1995) 
    11 Cal.4th 694
    , 757, italics omitted.) The prosecutor suggested that
    Dr. Cheshier was a competent surgeon—an assertion supported by the
    record—and urged the jury to credit his testimony, but he did not do so based
    on facts outside the record.
    Nor are we persuaded that the cited remarks were an improper
    statement of the prosecutor’s opinion, as opposed to simply his view of the
    evidence presented, or invited an emotional or irrational response to the
    evidence. (People v. Redd (2010) 
    48 Cal.4th 691
    , 743; People v. Ghent (1987)
    
    43 Cal.3d 739
    , 772.) “It is not [] misconduct “to ask the jury to believe the
    prosecution's version of events as drawn from the evidence. Closing
    argument in a criminal trial is nothing more than a request, albeit usually
    lengthy and presented in narrative form, to believe each party’s
    interpretation, proved or logically inferred from the evidence, of the events
    that led to the trial. It is not misconduct for a party to make explicit what is
    implicit in every closing argument, and that is essentially what the
    prosecutor did here.” (Huggins, 
    supra,
     38 Cal.4th at p. 207.)
    4. Appellant Has Not Demonstrated Ineffective Assistance of Counsel
    Even if we assume some of the remarks crossed the line into
    prosecutorial misconduct, we would affirm. Appellant objected only to the
    argument that Dr. Barnes “sandbagged” the prosecution by failing to write a
    more detailed report. Thus, he has largely forfeited his claims of
    prosecutorial misconduct, unless he can demonstrate that his counsel was
    ineffective in failing to object. This he cannot do.
    16
    On direct appeal, we “ ‘will reverse convictions on the ground of
    inadequate counsel only if the record on appeal affirmatively discloses that
    counsel had no rational tactical purpose for his act or omission.’ ” (People v.
    Zapien (1993) 
    4 Cal.4th 929
    , 980.) “[D]eciding whether to object is inherently
    tactical, and the failure to object will rarely establish ineffective assistance.”
    (People v. Hillhouse (2002) 
    27 Cal.4th 469
    , 502.)
    A failure to object in closing argument can often be explained by an
    attorney’s tactical determination that: (1) the objectionable statement is not
    sufficiently damaging to warrant objection; and/or (2) an objection would
    highlight the objectionable statement (or inference to be drawn from that
    statement), causing more prejudice than the objectionable statement alone.
    Given these considerations, and the split-second decision required to lodge a
    timely objection during an opponent’s closing argument, courts routinely
    have recognized that “the decision facing counsel in the midst of trial over
    whether to object to comments made by the prosecutor in closing argument is
    a highly tactical one.” (People v. Padilla (1995) 
    11 Cal.4th 891
    , 942,
    overruled on other grounds in Hill, supra, 17 Cal.4th at p. 823, fn. 1.)
    In the instant case, defense counsel’s failure to object could easily have
    been based on permissible tactical considerations. The gist of the
    objectionable comments was that appellant, though clearly responsible for
    Dante’s injuries, was trying to blame them on other circumstances—on prior
    falls, on issues involving Dante’s abnormal head shape and circumference, on
    Maria’s negligence in caring for him, and on his medical treatment. Defense
    counsel effectively addressed these comments in her own closing argument.
    Counsel also specifically addressed the points that are alleged to be
    misconduct, including Dr. Leetsma’s opinion that the sagittal sinus may have
    been severed during the surgery performed by Dr. Cheshier. “Now talking
    17
    about [the] sagittal sinus, I know [the prosecutor] said how could Dr.
    Leetsma literally accuse or somehow imply that Dr. Cheshier created this
    injury? No, that was never the implication. If you recall his testimony, the
    question was how does one get an injury to the sagittal sinus. Well, if you
    really want to know the answer, here are the various ways. Right? And one
    of them could be surgical. That’s not saying Dr. Cheshier did it. And it
    certainly wasn’t us trying to deflect or pinning the blame on Dr. Cheshier.”
    Counsel also addressed the testimony about Maria’s statements on
    Facebook about the authorities saying it was either her or Marco, and
    wanting someone to be guilty, which was alleged by the prosecution to have
    been elicited only to “dirty her up.” “Why is she saying this in May? Is she
    saying it because she’s being told to say it? Of course not, these are personal
    Facebook messages she’s having. . . What does that tell us? Because that’s
    what she’s believing herself.”
    Thus, defense counsel might have believed it was more effective to
    rebut the prosecutor’s argument through her own argument rather than to
    object and therefore highlight it. This is not a situation where “there simply
    could be no satisfactory explanation” for counsel's failure to object, and
    reversal on the ground of ineffective assistance of counsel is therefore not
    warranted. (People v. Gray (2005) 
    37 Cal.4th 168
    , 207; People v. Wharton
    (1991) 
    53 Cal.3d 522
    , 567 [finding no ineffectiveness where counsel failed to
    object to prosecutor's reference to evidence outside the record, because
    counsel might not have wanted to highlight the point with the jury]; People v.
    Milner (1988) 
    45 Cal.3d 227
    , 245 [finding no ineffectiveness where counsel
    would have acted well within the bounds of reasonable competence had he
    chosen to ignore the statements rather than draw attention to them with an
    objection].)
    18
    5. The Comments to Which Defense Counsel Objected Were Not
    Misconduct
    Defense counsel did make one objection during the prosecution’s closing
    argument. We conclude the remarks objected to, which had to do with the
    credibility of Dr. Barnes, a defense witness and a treating neuroradiologist
    who read Dante’s CT scan, did not amount to misconduct. “[D]iscrediting a
    defense witness does not constitute misconduct provided that the
    ‘prosecutor’s argument merely focused on the evidentiary reasons why [an
    expert’s opinions] could not be trusted.’ ” (People v. Rivera (2019) 
    7 Cal.5th 306
    , 335.)
    When the prosecutor cross-examined Dr. Barnes, he questioned him
    about why his report regarding the CT scan in this case was only two pages
    long and did not contain many of the opinions he offered at trial. During
    rebuttal, the prosecutor argued, “And what [Dr. Barnes] was offered for by
    [defense counsel] was so far beyond what was in those two pages [of his
    report] that it became unfair. That’s not the way the expert witness should
    testify. That’s not the way the evidence should be presented in court by an
    attempt not to record statements [to] be able to give to the other side, to be
    able to prepare and anticipate for it. So you are not sandbagged.” After an
    objection was lodged to these comments, the prosecutor characterized Dr.
    Barnes’s preparation of a report that did not give notice of what his testimony
    would be as “inherently unfair and inherently unprofessional when the scope
    of why he was relevant was reading the CT scan to say I– remember this: I
    don’t know. That’s why he said, can’t rule out chronic because I’m limited by
    the CT. It doesn’t tell me everything I need to do. Even Dr. Barnes would
    agree, did agree what would tell you is the MRI, the surgeon, the pathologist.
    [¶] So that’s who we call, the surgeon [and] the pathologist, to help flush that
    19
    out. There wasn’t anything more relevant to the reading of the CT scan other
    than it was, I don’t know what it shows. It might show an acute, it shows an
    acute and might show a chronic, rule it out; and that’s what they did.”
    The thrust of this argument was that if you looked at Dr. Barnes’s
    report, it was limited to stating that a chronic bleed could not be ruled out
    based on the CT scan, yet his testimony regarding the possibility that this
    injury was caused by a prior bleed was far more extensive. This was in
    response to defense counsel’s own argument urging the jury that Dr. Barnes’s
    testimony had raised a reasonable doubt as to whether Dante’s subdural
    hematoma was caused by a prior injury, and that the prosecutor had the
    opportunity to talk with Dr. Barnes as a treating physician but failed to do
    so.4 “ ‘[H]arsh and colorful attacks on the credibility of opposing witnesses are
    permissible.’ ” (People v. Parson (2008) 
    44 Cal.4th 332
    , 360.) The
    prosecutor’s comments were a reasonable critique of a defense expert witness
    and do not amount to misconduct.
    B. Fines and Fees
    Although appellant does not present a separate argument regarding
    the fines, fees and assessments imposed at sentencing, in the conclusion of
    his opening brief he suggests that if the convictions are not reversed the case
    should nonetheless be remanded for a hearing on his ability to pay those fees
    and fines. Any contention regarding ability to pay is forfeited as improperly
    presented. (Cal. Rules of Court, rule 8.204 [briefs must “[s]tate each point
    4  Defense counsel argued, “And I would ask you to consider this—I was
    actually pretty surprised . . . that [the prosecutor], when Dr. Barnes came in
    to testify and cross-examination started by [the prosecutor], he literally
    raised his voice and was on the attack with Dr. Barnes. . . . [¶] It’s
    interesting [] that Dr. Barnes was the treating neuroradiologist who did the
    CAT scan. He was on the prosecution witness list. He is someone who has
    been known to the prosecution just like all the other doctors they called.”
    20
    under a separate heading or subheading summarizing the point, and support
    each point by argument and, if possible, by citation of authority”];
    Consolidated Irrigation Dist. v. City of Selma (2012) 
    204 Cal.App.4th 187
    ,
    201 [failure to comply with rule requiring that each argument be presented
    under a separate heading forfeits the arguments]; County of Butte v.
    Emergency Medical Services Authority (2010) 
    187 Cal.App.4th 1175
    , 1196,
    fn. 7 [contention not supported by citation to legal authority is forfeited].) In
    any event, appellant clearly had the ability to pay the $330 restitution fine
    imposed out of his prison wages. (People v. Jones (2019) 
    36 Cal.App.5th 1028
    ,
    1035.)
    DISPOSITION
    The judgment is affirmed.
    21
    NEEDHAM, J.
    We concur.
    SIMONS, Acting P. J.
    BURNS, J.
    People v. Alvarado-Cisneros / A158059
    22