People v. Saran CA4/3 ( 2021 )

Filed 4/8/21 P. v. Saran CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G058087
v.
(Super. Ct. No. 16CF2432)
CARLOS HERNANDEZ SARAN,
OPINION
Defendant and Appellant.
In re CARLOS HERNANDEZ SARAN G058920
on Habeas Corpus.
Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed in part, reversed in part.
Original proceedings; petition for a writ of habeas corpus after judgment of
the Superior Court of Orange County. Petition denied.
David W. Beaudreau, under appointment by the Court of Appeal, for
Defendant, Appellant and Petitioner.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Carlos Hernandez Saran of six counts of lewd acts upon a
child under the age of 14 (Pen. Code, § 288, subd. (a)),1 two counts of forcible lewd acts
on a child under 14 (§ 288, subd. (b)(1)), two counts of oral copulation or sexual
penetration of a child 10 years old or younger (§ 288.7, subd. (b)), one count of lewd acts
upon a child 14 or 15 years old (§ 288, subd. (c)(1)); and one count of possessing child
pornography (§ 311.11, subd. (a)). The jury also found true a multiple-victim allegation
under the meaning of the One Strike law (§ 667.61, subds. (b) & (e)(4)). The trial court
sentenced Saran to an indeterminate term of 30 years to life on the two forcible lewd act
counts (counts 11 and 12), plus a consecutive two-year determinate term for the lewd act
on a 14- or 15-year-old child count 6). Concurrent terms were imposed on the remaining
counts.
In his direct appeal, Saran raises three claims regarding 2 of the 12
convictions. Specifically, he challenges the sufficiency of the evidence to support his
conviction for lewdly touching C.H. (count 2) and the evidence showing he used force
when touching Celeste N. (count 11). He also contends his trial counsel provided
constitutionally ineffective assistance by failing to object to the prosecutor’s closing
argument regarding count 11.
In his concomitant habeas corpus petition,2 Saran again raises his claim of
ineffective assistance, and includes his trial counsel’s declaration stating she cannot
remember having a tactical reason for not objecting to the prosecutor’s closing argument
regarding count 11.
We agree with Saran’s sufficiency of the evidence claim on count 2.
Consequently, we must vacate the concurrent two-year sentence imposed on that count.
We conclude, however, ample evidence supports Saran’s conviction on count 11.
1 All further undesignated statutory references are to the Penal Code.
2 We issued an order to show cause in the habeas corpus matter, and granted the
Attorney General’s request to consolidate the direct appeal with the writ petition.
2
On the related ineffective assistance of counsel claims, we conclude a
tactical reason existed for trial counsel not to object to the prosecutor’s closing argument.
But even assuming counsel should have objected, Saran fails to demonstrate he was
prejudiced by trial counsel’s purported ineffectiveness. Because we resolve his
ineffective assistance claim on the merits in the direct appeal, Saran’s habeas corpus
petition based on identical grounds must be denied.
Consequently, we affirm the judgment in part and reverse in part. On the
consolidated habeas corpus petition, our order to show cause is discharged and the
petition is denied.
I
FACTUAL BACKGROUND
This case encompassed 11 offenses and three victims, plus an unrelated
child pornography offense. One set of charges (counts 1-6) involved offenses committed
against two sisters in 2016. A second set (counts 7, 8, 10, 11, & 12) involved offenses
committed against an unrelated young girl in 2008.3 At issue here is one offense from
each set.
C.H. and J.H.
In 2016, Saran molested his neighbor’s two daughters, C.H. and J.H., who
were 12 and 15 years old. He played a game with C.H. in which he would pick her up
and toss her onto a bed. When he picked her up, he grabbed her by the crotch and
fondled her vagina. Saran paid C.H. $5 for each time he threw her in this manner.
On another day, Saran took C.H. and J.H. to his house. At some point, he
started tossing C.H. onto a bed, again touching her vagina each time he picked her up.
This time he also touched her breasts and kissed her neck. He then pulled down her pants
and licked her vagina. Finally, he grabbed C.H.’s hands and made her touch his penis.
3 Count 9 charged Saran with possessing child pornography, but that conviction is
unrelated to the other offenses and is not contested here.
3
Later that same day, J.H. was lying on her stomach playing a game on her
phone in Saran’s daughter’s bedroom when Saran approached her from behind and
grabbed her “butt” and “inner thigh.”
Celeste N.
In 2008, Saran molested his friend’s six-year-old daughter, Celeste N. at a
Halloween party. After Celeste went to bed, Saran claimed he needed to use the
restroom, but instead he went up to Celeste’s room, undressed her from the waist down,
and orally copulated her.
He returned downstairs, but later that night, he went back upstairs and
found Celeste in the bathroom next to her bedroom. He grabbed her, pulled her toward
him, and French kissed her. Celeste tried to push him away, but he was too strong for
her. After French kissing Celeste, he took her back to her bedroom, where he orally
copulated her again.
Sometime after the Halloween incident, during a get-together in Celeste’s
father’s backyard, Saran molested Celeste again. While her father was momentarily
inside, Saran grabbed Celeste and French kissed her again. This time she did not try to
stop him or resist because she was afraid.
Saran molested Celeste a third time a few days before Christmas. Again,
Celeste’s father had invited Saran to his home. At some point Celeste went into her
father’s bedroom, Saran walked in, closed the door, and tossed Celeste onto the bed. He
tried to pull her pants down. She told him to stop, scratched his face, broke free, and
fled.
4
II
DISCUSSION
A. Sufficiency of the Evidence: Counts 2 and 11
Saran challenges the sufficiency of the evidence to support count 2 (lewdly
touching C.H.’s buttocks), and count 11 (forcibly French kissing Celeste N. at the
Halloween party). We agree with his first contention, but reject the second.
1. Standard of Review
“In reviewing a sufficiency of evidence claim, the reviewing court’s role is
a limited one.” (People v. Smith (2005) 37 Cal.4th 733, 738.) We “‘review the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence—that is, evidence that is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’” (People v. Story (2009) 45 Cal.4th 1282, 1296; see Jackson v. Virginia (1979)
443 U.S. 307, 319 [“[T]he relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”].) “‘“[W]e must view the
evidence in the light most favorable to the People and must presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.]”’” (People v. Smith, supra, 37 Cal.4th at pp. 738-739.)
Moreover, “[w]e resolve neither credibility issues nor evidentiary conflicts;
we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 403.) It is
the jury that weighs the evidence, assesses witness credibility, and resolves conflicts in
the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) Therefore, “[a]
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
5
2. Evidence Saran Lewdly Touched Connie H.’s Buttocks (Count 2)
Count 2 alleged that “[o]n or about September 11, 2016, in violation of
Section 288(a) of the Penal Code,” Saran committed a lewd act on C.H. by “touch[ing]”
her “buttocks.” (Capitalization omitted.) The jury’s verdict form used the same
phrasing.
Regarding this incident, C.H. testified Saran repeatedly threw her onto a
bed, touching her vagina each time he picked her up. He touched her breasts and kissed
her neck. He pulled down her pants and licked her vagina. And he grabbed her hands
and made her touch his penis. When he stopped, she pulled her underwear and pants up
by herself.
However, there was no evidence Saran lewdly touched C.H.’s buttocks.
Indeed, the only evidence of a lewd buttocks-touching involved her sister J.H., not C.H.4
And Saran was separately charged and convicted of lewdly touching J.H.’s buttocks in
count 6.
The Attorney General argues the jury reasonably could infer from Saran’s
other conduct, and his “propensity” for molestation, that he “also touch[ed] [C.H.]’s
buttocks when he pulled her pants off” before to orally copulating her. The prosecutor
made similar remarks in his closing argument: “It wasn’t enough to just touch her vagina
with this throwing game. Now he’s kissing her on the neck. He is pulling down her
shorts. He is touching her buttocks. He is in there between her legs, touching her legs.”
(Italics added.) Later in his argument, the prosecutor added, “[he] touched her buttocks,
when he started to pull down her clothing.” (Italics added.) However, therein lies the
problem: C.H. was never asked about it, and in her testimony, she made no mention of
her buttocks ever being touched.
4 Notably, during their deliberations, the jury asked for a readback of C.H.’s
testimony on “Count 2 . . . regarding touching buttocks.”
6
Although it might be reasonable to infer Saran incidentally touched C.H.’s
buttocks when he was removing her pants and underwear, it does not necessarily follow
that such touching was done with the requisite lewd intent. Simply put, mere touching is
not enough. Rather, as the jury was instructed, the touching must be done “with the
intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires” of the
defendant. (CALCRIM No. 1110.)
When reviewing the record for substantial evidence, our power “‘begins
and ends with the determination as to whether, on the entire record, there is substantial
evidence, contradicted or uncontradicted, which will support the determination. . . .’
[Citation.]” (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) Even so,
“substantial evidence does not mean any evidence, no matter how slight.” (People v.
Baker (2012) 204 Cal.App.4th 1234, 1247.) Rather, it is “evidence which, when viewed
in light of the entire record, is of solid probative value, maintains its credibility and
inspires confidence that the ultimate fact it addresses has been justly determined.”
(People v. Conner (1983) 34 Cal.3d 141, 149.) Because no substantial evidence supports
the lewd touching of C.H.’s buttocks charged in count 2, we must reverse his conviction
for that offense. The prosecution’s failure to present sufficient evidence bars a retrial
under the Double Jeopardy Clause. (Burks v. United States (1978) 437 U.S. 1, 18;
Greene v. Massey (1978) 437 U.S. 19, 24 [same rule applies to the states].)
3. Evidence Saran Forcibly French Kissed Celeste N. (Count 11)
Count 11 alleged that “[o]n or between January 01, 2008 and September 14,
2009, in violation of Section 288(b)(1) of the Penal Code,” Saran committed a “forcible
lewd act” on Celeste N. by “kiss[ing] [her] mouth when victim was pushing defendant
away the first time.” (Capitalization omitted; italics added.) Again, the jury’s verdict
form was similarly phrased.
Celeste N. testified this happened the night of the Halloween party, when
for the second time that night, Saran snuck upstairs and found her in the bathroom next to
7
her bedroom. He grabbed her, pulled her toward him, and French kissed her. She
explained she tried to push him away, but he was too strong.
In his closing argument, the prosecutor misspoke, and said the forcible
French kiss occurred during the second incident at the backyard party. Celeste, however,
testified she was frightened and therefore did not resist being French kissed during the
backyard party.
Saran now argues we must limit our review of whether the evidence
supports a conviction for a forcible French kiss to whether it occurred in the backyard
because “the prosecutor’s factual election in closing argument made a unanimity
instruction unnecessary on count 11.” We do not find that contention persuasive.
The jury in a criminal case must unanimously agree the defendant is guilty
of a specific crime. (People v. Covarrubias (2016) 1 Cal.5th 838, 877; People v. Jo
(2017) 15 Cal.App.5th 1128, 1178.) “‘[I]f one criminal act is charged, but the evidence
tends to show the commission of more than one such act, “either the prosecution must
elect the specific act relied upon to prove the charge to the jury, or the court must instruct
the jury that it must unanimously agree that the defendant committed the same specific
criminal act.” [Citations.]’ [Citation.]” (People v. Jo, at p. 1178; People v. Grimes (2016)
1 Cal.5th 698, 727 [“A unanimity instruction is required if there is evidence that more
than one crime occurred, each of which could provide the basis for conviction under a
single count” (Italics added)].)
In other words, the unanimity requirement “‘is designed in part to prevent
the jury from amalgamating evidence of multiple offenses, no one of which has been
proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a
defendant must have done something sufficient to convict on one count.’” (People v.
Russo (2001) 25 Cal.4th 1124, 1132.)
For example, in People v. Diedrich (1982) 31 Cal.3d 263, the defendant
was convicted of a single count of bribery, but the evidence showed two discrete bribes.
8
Our Supreme Court found the absence of a unanimity instruction reversible error
“because without it, some of the jurors may have believed the defendant guilty of one of
the acts of bribery while other jurors believed him guilty of the other, resulting in no
unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.)
Saran relies on People v. Brown (2017) 11 Cal.App.5th 332 (Brown).
There, “[f]our male gang members lured a 15-year-old female victim to the bedroom of a
house, got her falling-down drunk, then had sex with her against her will. She awoke to
find herself on a mattress in a nearby vacant apartment. DNA recovered from her vagina
was identified as that of defendant . . . .” (Id. at p. 334.) The prosecutor charged the
defendant with one count of forcible rape and one count of rape in concert. An
accomplice testified the defendant did not participate in the rape in concert that took
place in the bedroom. Consequently, the prosecutor argued to the jury the defendant
“must have taken the victim over to the vacant apartment and raped her there.” (Id. at
p. 334.)
The Brown court concluded that, although an appellate court ordinarily
“can uphold a conviction on any factual theory that is supported by the evidence[,] . . .
[w]hen the prosecution has elected to proceed on one factual theory, and when that
election has obviated the need for a unanimity instruction, we are bound by the
prosecution’s election.” (Brown, supra, 11 Cal.App.5th at p. 335.) “While there was
sufficient evidence to support the prosecution’s theory that defendant raped the victim in
the vacant apartment, there was insufficient evidence of force in that scenario. On the
other hand, . . . there was also sufficient evidence that defendant was one of the men who
raped the victim in the bedroom; in that scenario, there was sufficient evidence that
defendant’s rape was forcible.” (Id. at p. 335.)
Thus, the Brown holding is predicated on a situation where a prosecutor ties
each charge to specific criminal acts when a unanimity instruction would otherwise have
been required. If so, an appellate court is likewise bound by the prosecutor’s election.
9
(Brown, supra, 11 Cal.App.5th at p. 341.) And if the defendant later raises a sufficiency
of the evidence challenge on appeal, “review is limited to whether there is sufficient
evidence to support a conviction based exclusively on the act elected by the prosecution.”
(Id. at pp. 341-342.)
Here, however, the prosecutor made a mistake regarding count 11, not an
election. There was no need for a unanimity instruction—or an election—because two
distinct French kissing offenses were charged, one forcible and one not, and there was no
possibility the jury would conflate the two.5
Saran’s entire analysis ignores count 8, which alleged a nonforcible lewd
act on Celeste N. when he “kissed [her] mouth the first time.” The jury’s verdict on that
count was similarly phrased. Thus, Saran was charged with, and convicted of, two
distinct offenses against Celeste N. which involved French kissing: counts 8 and 11. This
is not a situation where the evidence showed “‘the commission of more than one such
act’” that could constitute a single charge of forcible French kissing. (Brown, supra,
11 Cal.App.5th at p. 341; see People v. Leonard (2014) 228 Cal.App.4th 465, 487
[evidence did not establish “two discrete events” which could support a single charge,
requiring an election]; cf. People v. Salvato (1991) 234 Cal.App.3d 872, 878 [“The
doctrine of election protects two procedural rights of the criminal defendant in cases
where the evidence tends to show a larger number of offenses than have been charged;
the right to a unanimous jury verdict and the right to be advised of the charges” (italics
added)].)
5. A unanimity instruction was given with regard to count 3 (“Kiss or Lick” C.H.’s
neck) and count 6 (“Touch Leg or Buttocks” of J.H.), but not for count 11. (See
CALCRIM No. 3501.) During preinstruction discussions, the prosecutor specifically told
the court counts 3 and 6 were “the only counts that had more than one act to constitute
the crime. . . . All of the other counts appear to have just one act alleged.” The
prosecutor maintained his need for an “election” applied only to those two counts, and
the court correctly agreed.
10
Neither the evidence nor the charges created a situation similar to that
found in Brown. There was no danger here six jurors would find the Halloween incident
forcible and six would find the backyard incident forcible in reaching their verdict on
count 11; nothing in Celeste N.’s testimony suggested the backyard incident was forcible.
(See Brown, supra, 11 Cal.App.5th at p. 341 [“The evidence still comes solely from the
witnesses”].) Moreover, the jury must have unanimously agreed on the forcible act or
they would not have had a basis to also convict Saran on the nonforcible French kiss in
count 8.
Simply put, the jury in this case was not confronted with a situation in
which it risked convicting defendant “‘on a single count . . . based on two or more
discrete criminal events.’” (People v. Russo, supra, 25 Cal.4th at p. 1135; Brown, supra,
11 Cal.App.5th at p. 341.) Consequently, there was no need for either a unanimity
instruction or a prosecutorial election. Nor did the prosecutor make such an “election” on
count 11. Because the evidence did not show multiple forcible acts in support of the
single charge found in count 11, Brown is inapplicable, and our review is not limited by
the prosecutor’s factually confused closing argument. (Compare Brown, supra,
11 Cal.App.5th at p. 341.)
Furthermore, based on Celeste N.’s uncontroverted testimony, substantial
evidence supported convictions for both count 8 and count 11, including how, when, and
where they occurred. No more than we are, the jury was not limited to the prosecutor’s
mistaken factual “theory.” (See People v. Perez (1992) 2 Cal.4th 1117, 1126 [“It is
elementary, however, that the prosecutor’s argument is not evidence and the theories
suggested are not the exclusive theories that may be considered by the jury”]; People v.
Leonard, supra, 228 Cal.App.4th at p. 487 [same].) Saran’s conviction on Count 11 is
amply supported by the evidence adduced at trial.
11
B. Ineffective Assistance of Counsel
As discussed, Celeste N. testified Saran kissed her on two separate
occasions. During closing argument, the prosecutor misspoke and confused the forcible
Halloween kiss with the nonforcible backyard kiss. “It is well settled that it is
misconduct for a prosecutor to base argument on facts not in evidence.” (People v.
Mendoza (2016) 62 Cal.4th 856, 906.) Trial counsel, however, did not object to the
prosecutor’s mischaracterization of Celeste N.’s testimony.
To preserve an appellate claim of prosecutorial misconduct during trial,
“‘“a criminal defendant must make a timely and specific objection and ask the trial court
to admonish the jury to disregard the impropriety.”’” (People v. Powell (2018) 6 Cal.5th
136, 171.) Generally, a failure to object forfeits the claim on appeal. (People v. Flores
(2020) 9 Cal.5th 371, 403.)
To avoid forfeiture, Saran takes a different tack, and contends he received
constitutionally ineffective assistance of counsel because his attorney failed to object to
the prosecutor’s misstatement of the evidence.
1. Legal Background
“An ineffective assistance claim has two components: A [defendant] must
show that counsel’s performance was deficient, and that the deficiency prejudiced the
defense.” (Wiggins v. Smith (2003) 539 U.S. 510, 521 (Wiggins); Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) Both “are mixed questions of law
and fact subject to our independent review.” (In re Gay (2020) 8 Cal.5th 1059, 1073.)
Regarding the deficient performance component, “[t]here are countless
ways to provide effective assistance [and] [e]ven the best criminal defense attorneys
would not defend a particular client in the same way.” (Strickland, supra, 466 U.S. at
p. 689.) As a result, “to establish deficient performance, a [defendant] must demonstrate
that counsel’s representation ‘fell below an objective standard of reasonableness,’” as
measured by “‘prevailing professional norms.’” (Wiggins, supra, 539 U.S. at p. 521,
12
italics added; see Bobby v. Van Hook (2009) 558 U.S. 4, 7 [“[T]he Federal Constitution
imposes one general requirement: that counsel make objectively reasonable choices”].)
“When applying this standard, we ask whether any reasonably competent
counsel would have done as counsel did. . . . Judicial review of counsel’s performance is
deferential; to establish deficient performance, the defendant ‘must overcome the
presumption that, under the circumstances, the challenged action “might be considered
sound trial strategy.”’” (In re Gay, supra, 8 Cal.5th at p. 1073; see Harrington v. Richter
(2011) 562 U.S. 86, 105 [“standard for judging counsel’s representation is a most
deferential one”]; see also Bell v. Cone (2002) 535 U.S. 685, 702 [same].)
In this regard, trial counsel’s declaration in support of Saran’s habeas
corpus petition is significant for what it does not say. Counsel states her “trial notes have
gone missing,” and “[d]espite an extensive search,” she and her staff were “unable to
locate” them. Consequently, she says she “ha[s] no independent recollection of having a
tactical reason for not objecting to the prosecutor’s misstatement of the facts.”
As for the prejudice component of the test, “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” (Strickland, supra, 466 U.S. at p. 693.) Rather, “[t]he defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” (Id. at p. 694.)
Moreover, “[a]lthough we have discussed the performance component of an
ineffectiveness claim prior to the prejudice component, there is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant makes an insufficient showing
on one. In particular, a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant as a result of the
13
alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, which we expect will often be so, that course
should be followed. Courts should strive to ensure that ineffectiveness claims not
become so burdensome to defense counsel that the entire criminal justice system suffers
as a result.” (Strickland, supra, 466 U.S. at p. 697.)
2. Analysis
Trial counsel in her declaration did not say she had no tactical reason for
not objecting; rather, only that she could not recall whether she did. One tactical reason
is readily apparent, however. Counsel did not object because doing so would have
alerted the prosecutor to the mistake and allow him to correct it and avoid possibly
confusing the jury.
Even assuming Saran could meet his burden of establishing his trial
counsel’s performance was constitutionally deficient, we still would need to address how
this supposed deficiency affected the case.
“How readily deficient performance undermines confidence in the trial’s
outcome will in part depend on the strength of the trial evidence on any decisive points.
A ‘verdict or conclusion only weakly supported by the record is more likely to have been
affected by errors than one with overwhelming record support.’ [Citation.]” (In re Gay,
supra, 8 Cal.5th at p. 1087.) “An analysis of prejudice . . . does not involve the
application of ‘mechanical rules.’ [Citation.] Instead, ‘the ultimate focus . . . must be on
the fundamental fairness of the proceeding whose result is being challenged. In every
case the court should be concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a breakdown in
the adversarial process that our system counts on to produce just results.’” (Ibid.)
As discussed, substantial evidence in the form of Celeste N.’s unambiguous
and uncontroverted testimony established she was French kissed twice: once forcibly on
Halloween, and once nonforcibly at the backyard event. There is no indication the
14
prosecutor’s mistaken remarks so “infect[ed] the trial with such unfairness as to make
defendant’s conviction a denial of due process [citation] or to render the verdicts
unreliable.” (People v. Kipp (2001) 26 Cal.4th 1100, 1130.) Similarly, there is nothing
showing a reasonable probability the jury was similarly confused and relied on the
prosecutor’s remarks rather than Celeste N.’s testimony regarding which of the French
kiss incidents was forcible.
Furthermore, the trial court twice instructed the jury that the attorneys’
opening statements and closing arguments did not constitute evidence.6 (CALCRIM No.
222.) We presume the jury followed the court’s instructions (People v. Martinez (2010)
47 Cal.4th 911, 957), and Saran has provided nothing to rebut that presumption. In
addition, Saran had a full opportunity “to challenge and rebut all evidence offered against
him.” (People v. Wrest (1992) 3 Cal.4th 1088, 1109-1110; accord, People v. Dykes
(2009) 46 Cal.4th 731, 762.) The prosecutor’s isolated misstatement of the evidence did
not affect the fairness of his trial or the reliability of the jury’s verdicts.
“A mere failure to object to argument seldom establishes counsel’s
incompetence.” (People v. Thomas (1992) 2 Cal.4th 489, 531.) And “this case is no
exception.” (Ibid.) In light of the court’s cautionary instructions and Saran’s ability to
challenge Celeste N.’s testimony on cross-examination, we discern neither prejudice nor
a denial of his right to a fair trial based solely on the prosecutor’s mistaken closing
argument. This was not a close case, and it is not reasonably probable the result would
have been different had trial counsel objected to the prosecutor’s incorrect statement.
6 Actually, three times. Before closing arguments began, the court also told the
jury: “Remember, what the attorneys say is not evidence. And we always have the
luxury of the court reporter. If you hear that the attorney said ‘X,’ and you think, ‘I’m
not sure that’s true,’ you can always double-check.”
15
Thus, Saran fails to demonstrate his lawyer’s failure to object prejudiced
his chances at trial or undermines our confidence in the outcome. We therefore conclude
Saran has failed to show his trial counsel was constitutionally ineffective.
C. The Habeas Corpus Petition
As noted, Saran also brought a petition for writ of habeas corpus, which has
been consolidated with the direct appeal. His habeas petition raises the same ineffective
assistance of counsel claim advanced in his appeal.
On habeas corpus, Saran “bears the burden of proving his entitlement to
relief by a preponderance of the evidence.” (In re Gay, supra, 8 Cal.5th at p. 1072.)
Saran has offered nothing to establish, or to suggest he could establish, the prejudice
prong of the Strickland test.
Instead, he provides a declaration from trial counsel to ostensibly support
the first prong of the Strickland test, in which she states she cannot recall having a
tactical reason for not objecting to the prosecutor’s closing argument. Even assuming
this sufficiently establishes deficient performance, it is not sufficient for habeas corpus
relief. Just as with a direct appeal based on ineffective assistance of counsel, to prevail
on habeas corpus a petitioner must establish “that counsel’s deficient performance was
prejudicial to the defense.” (In re Wilson (1992) 3 Cal.4th 945, 958.) Trial counsel’s
ambiguous declaration does not assist him in doing so.
We have determined there was a sound tactical basis for trial counsel not to
object to the prosecutor’s mistaken remarks in closing argument. And regardless whether
counsel entertained this strategy, the failure to object was not prejudicial. Saran’s habeas
corpus petition adds nothing in this respect, so his petition for habeas corpus relief also
must be rejected. (In re Waltreus (1965) 62 Cal.2d 218, 225.)
16
III
DISPOSITION
In case G058087, the conviction on count 2 is reversed and the two-year
concurrent sentence imposed on that count is vacated. Upon issuance of the remittitur,
the superior court is directed to prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. In all other respects
the judgment is affirmed.
In case G058920, the order to show cause is discharged, and the petition for
writ of habeas corpus is denied.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.
17