1

Filed 10/9/13 P. v. Harrington CA1/4 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

CHARLIE HARRINGTON, 

 Defendant and Appellant. 

 A134007 

 (Alameda County 

 Super. Ct. No. C165167) 

 Defendant Charlie Harrington was arrested after he was pulled over driving a 

stolen car, and a jury later convicted him of carjacking. He argues on appeal that his 

conviction must be reversed because (1) the trial court improperly consolidated the 

carjacking charges with other charges alleging a sexual assault, (2) his trial counsel was 

ineffective in failing to object to the admission of a rap video, and (3) the prosecutor 

committed misconduct during closing arguments. We affirm. 

I. 

FACTUAL AND PROCEDURAL

BACKGROUND

 Around 10 p.m. on August 16, 2010, Tisha R. parked her car near a housing 

project on Seventh Street in Oakland, where she planned to visit a friend. She got out of 

the car, reached back inside to retrieve a bag, and was confronted by Harrington and three 

other men wearing black-hooded sweatshirts and carrying guns. They forced her to give 

them her keys, jewelry, and phone, and then they jumped in her car and drove away. 
2

Two days later, Harrington was pulled over driving the stolen car, and the police arrested 

him. 

 Harrington’s exact role in the carjacking was never conclusively resolved. Before 

trial, Tisha R. identified Harrington in a photographic lineup as someone who had robbed 

her, pointed a gun at her, and said, “ ‘Break yourself, bitch.’ ” But when asked at trial to 

identify the person who held a gun to her and said those words, she said that Harrington 

resembled that person “[a] little bit,” and that her memory about the incident was better 

soon after it occurred. She also acknowledged that she may have at some point confused 

which of the four men got into the driver’s side and which of them got into the passenger 

side after they took her car. Still, it was not disputed that Harrington had played a role in 

the carjacking. He had acknowledged during a police interview that he was at the scene 

of the carjacking, watched it happen, and acted as a lookout. 

 On August 20, 2010, Harrington was charged by complaint in connection with the 

carjacking. Less than two weeks later, he was charged by complaint in a separate case 

for a sexual assault that allegedly occurred on August 9, a week before the carjacking, at 

the same housing project. After informations were filed in both cases, the prosecution 

filed a motion to consolidate them. 

 During two days of pretrial hearings, the parties discussed the proposed 

consolidation and certain evidentiary issues. One of the evidentiary issues involved an 

excerpt from a rap-music video that featured Harrington and had been posted online. The 

request to admit the video was intertwined with the motion to consolidate because it 

involved the video’s admissibility in one or both of the cases. 

 The trial court ruled that if the sexual-assault case was tried separately, the rap 

video would be admissible to show intent under Evidence Code section 1101, 

subdivision (b). Defense counsel did not oppose this ruling because he believed that the 

witnesses who would testify about the alleged sexual assault were familiar with the video 

and that the video would become relevant in some way. He did, however, object to the 

admission of the video in the carjacking case. The court noted the objection, but deferred 

ruling on the admissibility issue and the proposed consolidation until the following day. 
3

 The next day, the court first focused on whether the rap video was admissible to 

show Harrington’s intent in the carjacking case. Defense counsel argued that Harrington 

would suffer prejudice if any evidence from the sexual-assault case was considered in the 

carjacking case. The trial court apparently disagreed, because it granted the motion to 

consolidate. The court did not specifically rule on the admissibility of the rap video in 

the carjacking case. 

 Harrington was thereafter charged by consolidated information with crimes arising 

out of both events. In connection with the carjacking, he was charged with (1) carjacking 

with an allegation he personally used a firearm (Pen. Code, §§ 215, subd. (a), 12022.5, 

subd. (a), 12022.53, subds. (b), (g))1

 and (2) possession of a firearm by a felon (former 

§ 12021, subd. (a)(1)), and in connection with the sexual assault case, he was charged 

with sexual penetration with a foreign object (§ 289, subd. (a)(1)), second-degree robbery 

(§ 211), possession of a firearm by a felon (former § 12021, subd. (a)(1)), and criminal 

threats (§ 422). 

 At the consolidated trial, the prosecution presented evidence about the alleged 

sexual assault, including testimony from the alleged victim, who was a resident of the 

apartment complex where the carjacking later occurred. According to her, she tried to 

buy cocaine from Harrington in the lobby of the housing complex in the early morning 

hours of August 9, 2010. She testified that Harrington directed her to follow him into a 

second floor stairwell, held a gun to her face, and told her, “ ‘Bitch, give me everything 

you got.’ ” She stated that he took her money, keys, cellular phone, and iPod, and then 

touched her vagina after ordering her to take her clothes off. According to the alleged 

victim, a companion and her brother then intervened. The alleged victim’s brother also 

testified, and he claimed that Harrington pointed a gun at him and threatened to shoot 

him. 

 The rap video was admitted into evidence for limited purposes. The jury was told 

that it could consider the video for the purposes of deciding whether Harrington acted 

 

1

 All statutory references are to the Penal Code unless otherwise specified. 
4

with the requisite intent in connection with the sexual-assault incident, whether he acted 

with the intent to deprive the victim of her car in connection with the carjacking, whether 

he knew that he possessed a firearm as required for the firearm-possession counts, and 

whether he had a motive to commit the offenses alleged in the carjacking case. 

 During closing arguments, another incident occurred that is relevant to this appeal. 

During his argument, the prosecutor stated that some of the defense counsel’s theories 

were based on speculation and were presented to create confusion. Defense counsel 

objected to this comment, but the objection was overruled. 

 Before it deliberated, the jury was given instructions on issues involved in this 

appeal. First, it was directed to keep the evidence of the carjacking separate from the 

evidence of the sexual assault. Specifically, it was instructed that “the evidence of the 

events of August 9th may not be considered as evidence that the defendant was a 

perpetrator of the events of August 16th and vice versa. Evidence of the one date may be 

considered as to the other date only as to the limited issues set forth above; i.e.[,] those 

involving intent or mental state.” Second, it was instructed that Harrington could be 

found guilty of carjacking if he aided or abetted it, regardless whether he personally 

committed the crime. Third, in addition to being instructed on the limited purposes for 

which it could consider the rap video, the jury was instructed that it was not to conclude 

from the video that Harrington had a bad character or was disposed to commit crime. 

 The jury convicted Harrington of carjacking but nothing else. It found untrue the 

allegation that he personally used a firearm in the commission of the carjacking, and it 

found him not guilty of possession of a firearm by a felon. None of the four counts 

related to the sexual assault was sustained: Harrington was found not guilty of sexual 

assault, and jurors were unable to reach a verdict on the remaining charges, which were 

dismissed after the trial court declared a mistrial. 

 For purposes of sentencing, the trial court found true an allegation that Harrington 

had a prior prison term (§ 667.5, subd. (b)), but struck it and sentenced Harrington to the 

upper term of nine years (§ 215, subd. (b)). This timely appeal followed. 
5

II. 

DISCUSSION

A. The Trial Court Did Not Abuse its Discretion in Consolidating the Cases. 

 Harrington first contends that the trial court denied him a fair trial by 

consolidating the two actions. We disagree. 

 Section 954 permits the consolidation of criminal matters. It provides that “[a]n 

accusatory pleading may charge two or more different offenses connected together in 

their commission, or different statements of the same offense or two or more different 

offenses of the same class of crimes or offenses, under separate counts, and if two or 

more accusatory pleadings are filed in such cases in the same court, the court may order 

them to be consolidated.” A trial court faces two questions in considering whether to 

consolidate charges: whether they are eligible for joinder; and whether, despite their 

eligibility, the charges should be tried separately in order to ensure a fair trial. (People v. 

Earle (2009) 172 Cal.App.4th 372, 386.) Harrington does not challenge the trial court’s 

conclusion on the first issue—that the joined offenses were “of the same class of 

offenses” and thus eligible to be joined. (People v. Alvarez (1996) 14 Cal.4th 155, 188 

[rape and robbery both “assaultive crime[s] against the person”]; People v. Poggi (1988) 

45 Cal.3d 306, 320 [same].) He argues instead that the trial court denied him a fair trial 

in ordering the two cases consolidated, a question we review for abuse of the trial court’s 

discretion. (People v. Scott (2011) 52 Cal.4th 452, 469.) 

 In determining whether a trial court abused its discretion under section 954, we 

consider the record before the trial court at the time it made its ruling. (People v. Scott, 

supra, 52 Cal.4th at p. 469; People v. Soper (2009) 45 Cal.4th 759, 774.) We first 

consider whether the evidence supporting the separate charges would be cross-admissible 

in separate trials. (Soper at p. 774.) Harrington points to the differences between the 

charges in the carjacking and sexual-assault cases and argues that evidence of these 

crimes would not have been cross-admissible in separate trials. He argues that 

“uncharged sexual misconduct is inherently prejudicial.” But in making this argument he 

relies on decades-old cases, decided before Evidence Code section 1108 was adopted, 
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that address the admission of other-crimes evidence where consolidation was not an 

issue. (People v. Alcala (1984) 36 Cal.3d 604, 631-632; People v. Thomas (1978) 20 

Cal.3d 457, 466.) These cases have little bearing here because the analysis and standards 

governing the admissibility of evidence of other crimes differ when the evidence is being 

offered in the context of a consolidated action. 

 As our Supreme Court has repeatedly observed, “the applicable analysis is 

significantly different in the context of properly joined charged offenses. [Citations.] 

Unlike what occurs in situations involving the admissibility of uncharged misconduct—in 

which the People bear the burden of establishing that the evidence has substantial 

probative value that clearly outweighs its inherent prejudicial effect—by contrast, in the 

context of properly joined offenses, ‘[t]he burden is reversed.’ [Citation.] In the latter

setting, ‘[t]he prosecution is entitled to join offenses under the circumstances specified in 

section 954. The burden is on the party seeking severance to clearly establish that there 

is a substantial danger of prejudice requiring that the charges be separately tried. 

[Citations.] When the offenses are [properly] joined for trial the defendant’s guilt of all 

the offenses is at issue and the problem of confusing the jury with collateral matters does 

not arise. The other-crimes evidence does not relate to [an] offense for which the 

defendant may have escaped punishment. That the evidence would otherwise be 

inadmissible [under Evidence Code section 352] may be considered as a factor 

suggesting possible prejudice, but countervailing considerations [of efficiency and 

judicial economy] that are not present when evidence of uncharged offenses is offered 

must be weighed in ruling on a . . . motion [to sever properly joined charges]. The 

burden is on the defendant therefore to persuade the court that these countervailing 

considerations are outweighed by a substantial danger of undue prejudice.’ [Citations.]” 

(People v. Soper, supra, 45 Cal.4th at pp. 773-774, original italics.) Not only is the 

burden allocated differently below, but a defendant must also make a stronger showing of 

prejudice on appeal in order to establish reversible error. (Id. at p. 774.) 

 Although it is far from clear that the evidence in the sexual-assault case was 

admissible to prove motive or intent in the carjacking case, we ultimately conclude that 
7

Harrington fell short of satisfying his burden of showing that a substantial danger of 

undue prejudice outweighed the considerations of judicial economy and efficiency. 

Citing People v. Scott, supra, 52 Cal.4th at page 470, respondent correctly summarizes 

the general rule that where evidence is offered under Evidence Code section 1101, 

subdivision (b) to prove intent, “ ‘[t]he least degree of similarity is required.’ ” But in 

Scott, the court summarized the extensive similarities between the various crimes, 

including the fact that the defendant murdered two victims with their own kitchen knives. 

(Scott at pp. 471-472.) Here, one crime was a carjacking perpetrated against a stranger, 

and the other was an alleged robbery and sexual assault perpetrated against a known 

victim. Other than the facts that the two crimes happened at the same housing project 

and that Harrington was alleged to have used a gun in both instances (an allegation that 

was ultimately rejected by the jury), we seriously question how the evidence in either of 

them demonstrates an intent by Harrington to engage in the other. 

 We need not conclusively resolve the issue whether the evidence here was crossadmissible, however, because even when evidence is not cross-admissible trial courts 

retain discretion to consolidate cases. (§ 954.1 [cross-admissibility of evidence not a 

prerequisite to consolidation under § 954]; People v. Soper, supra, 45 Cal.4th at p. 775.) 

“If we determine that evidence underlying properly joined charges would not be crossadmissible, we proceed to consider ‘whether the benefits of joinder were sufficiently 

substantial to outweigh the possible “spill-over” effect of the “other-crimes” evidence on 

the jury in its consideration of the evidence of defendant’s guilt of each set of offenses.’ 

[Citations.]” (Soper at p. 775, original italics.) In making this assessment, we consider 

“(1) whether some of the charges are particularly likely to inflame the jury against the 

defendant; (2) whether a weak case has been joined with a strong case or another weak 

case so that the totality of the evidence may alter the outcome as to some or all of the 

charges; or (3) whether one of the charges (but not another) is a capital offense, or the 

joinder of the charges converts the matter into a capital case. [Citations.] We then 

balance the potential for prejudice to the defendant from a joint trial against the 

countervailing benefits to the state.” (Ibid., fn. omitted.) 
8

 Our application of these factors here convinces us that the benefit of consolidation 

was not outweighed by the possible spillover effect of the evidence. First, Harrington’s 

alleged sexual misconduct was not particularly likely to inflame the jury—especially 

since the allegations were made by someone who admitted that she had once been a 

prostitute and was trying to buy drugs at the time of the incident. (People v. Soper, 

supra, 45 Cal.4th at p. 775.) Second, the carjacking case was not so weak, and the 

sexual-assault case was not so strong, that the outcome in the carjacking case was likely 

to be affected by any cross-evidence. (Ibid.) In fact, the carjacking case was compelling 

from the outset because Harrington had admitted to the police that he was present at the 

carjacking, and he had been found driving the victim’s stolen car. And defense counsel 

depicted a weak defense when he stated before trial that the defense would focus on what 

Harrington meant when he told a police officer he acted as a “lookout.” Third, 

Harrington was charged with no capital offenses. (Ibid.) These factors lead us to 

conclude that the trial court acted well within its discretion in consolidating the charges. 

 It is particularly clear that Harrington was not prejudiced when we analyze the 

results at trial. “A pretrial ruling that was correct when made can be reversed on appeal 

only if joinder was so grossly unfair as to deny due process.” (People v. Stitely (2005) 

35 Cal.4th 514, 531; see also People v. Hartsch (2010) 49 Cal.4th 472, 494 [defendant 

unable to demonstrate “actual prejudice amounting to a denial of fundamental 

unfairness”].) “[W]hen the issue is raised on appeal we must . . . consider the actual 

impact at trial of the joinder. [Citations.] Here we look to the evidence actually 

introduced at trial to determine whether ‘a gross unfairness has occurred such as to 

deprive the defendant of a fair trial or due process of law.’ [Citation.]” (People v. Bean

(1988) 46 Cal.3d 919, 940; see also People v. Musselwhite (1998) 17 Cal.4th 1216, 1244-

1245 [separate trials constitutionally required if joinder so prejudicial that it would deny 

defendant fair trial].) 

 The evidence in the sexual-assault case led the jury to find Harrington not guilty of 

one count and unable to reach a verdict on the others. And the evidence that Harrington 

used a gun in the sexual-assault case did not lead the jury to conclude that he used a gun 
9

in the carjacking case, as it found the allegation that he used a weapon in the course of 

taking the victim’s car to be untrue, and he was found not guilty of being a felon in 

possession of a firearm. Given this result, Harrington’s contention that jurors might have 

wanted to punish him in the carjacking case because he escaped conviction in the sexualassault case is thus purely speculative. Our review of the record leads us to conclude that 

jurors followed the jury instruction that evidence of the charges in the carjacking case 

was not to be considered as evidence that Harrington committed the crimes charged in the 

sexual-assault case. Likewise, we have no reason to doubt that jurors did not use 

evidence underlying the sexual-assault counts to conclude that Harrington committed the 

carjacking, given the strength of the evidence supporting his conviction. Harrington 

received a fair trial. 

B. Any Error in Admitting the Rap Video into Evidence Was Harmless. 

 Harrington next argues that his conviction must be reversed because his counsel 

was ineffective in failing to object to the admission of the rap-music video. He contends 

that his counsel should have objected to the admission of the video because it was 

inadmissible under Evidence Code section 1101 to demonstrate intent and motive and 

that it also was unduly prejudicial under Evidence Code section 352. We reject this 

argument because the record shows that Harrington’s trial counsel did object to the 

admission of the video in the carjacking case, and Harrington cannot establish prejudice 

from its admission in any event. 

 The transcript of the video provides as follows: 

 “All gas no brakes. Nigga’, I play with a cape. 

 “(Unintelligible), I shoot a nigga’ in his face. 

 “I’m on the block all day. Nigga’, I rob all day. Paper chase all day and get high 

all day. 

 “Nigga’ I’m (unintelligible), so I keep a thirty (unintelligible). 

 “If I catch a nigga’ slip, I’m gonna’ feed him the whole clip. 

 “You can catch me in a riddle, four-door Regal. Sippin’ on robo. Scratched up 

with a Nintendo. 
10

 “Put a nigga’ on flat for any one of my ten folks. 

 “JB. Taco. Evening Ken Dolo. Yolo. Mac Daddy. Young Money. Die. 

Rainbow. Kenmo. J Baby. Tyron. J Dub. Big Bub. Bam. Boom. Money Bo. Steel 

Wheel. Lulu. Scoop. J Dolla. J Digga. Booyah.” 

 Although Harrington refers in the video excerpt to “shoot[ing]” someone in the 

face and keeping “a thirty” (presumably, a reference to a gun), a viewing of the video 

reveals that Harrington is never seen actually holding a gun.2

 An unidentified man is 

seen holding a gun over a person lying on the ground with what appears to be blood, an 

apparent dramatization and not a depiction of a real shooting. 

 The admission of the video was discussed below mostly as it related to whether 

the carjacking and sexual-assault cases should be consolidated. Among other 

contentions, the prosecutor argued that the video was relevant to establish Harrington’s 

motive to rob in the sexual-assault case (Evid. Code, § 1101, subd. (b)) because 

Harrington was reportedly mad because the alleged victim had called the police earlier in 

the day in connection with an unrelated fight. He theorized that this may have been what 

Harrington meant in the video when he said, “ ‘If I catch a nigga slip, I’m gonna feed him 

the whole clip.’ ” In our view, this theory was speculative and attenuated. 

 In any event, defense counsel stated that he did not object to the admission of the 

video in the sexual-assault case, because he was “rather confident that those witnesses 

had already seen this video, knew about it, knew his music. And so it would be nothing 

new or different for the witnesses and complainants in the case . . . .” As to whether it 

was admissible in connection with the carjacking case, counsel stated he would object to 

its admission under Evidence Code section 1101, subdivision (b), and that he would ask 

to have it excluded if the carjacking case was being tried separately. The trial court noted 

that “[a]s to the [carjacking] case, there is [an objection],” but admitted it for limited 

purposes in both cases. 

 

2

 The DVD exhibit containing the excerpt was not included in the record on appeal but 

was subsequently transferred to this court upon our request. (Cal. Rules of Court, 

rule 8.224(d).) 
11

 Evidence of a defendant’s prior conduct is generally inadmissible to prove his or 

her conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Such evidence is 

admissible, however, if it is relevant to prove some fact other than a defendant’s 

disposition to commit such an act, such as intent or motive. (Evid. Code, § 1101, 

subd. (b); People v. Carter (2005) 36 Cal.4th 1114, 1147; see, e.g., People v. Zepeda

(2008) 167 Cal.App.4th 25, 34-35 [no error to admit compact disc of gangster rap lyrics 

to show defendant’s state of mind and motives to support his criminal gang’s activities].) 

We are sympathetic to Harrington’s argument that there was “no logical connection 

between the rap video and the charged crimes.” Respondent does not even argue that the 

rap video was admissible in the carjacking case and instead focuses on the lack of 

prejudice in its admission. 

 This focus is understandable because, even if we assume that Harrington is correct 

that the trial court abused its discretion in admitting the rap video, we may reverse a 

judgment based upon the erroneous admission of evidence only if the error “resulted in a 

miscarriage of justice.” (Evid. Code, § 353, subd. (b); see also Cal. Const., art. VI, § 13 

[no reversal of judgment based on improper admission of evidence unless examination of 

entire cause, including the evidence, reveals error resulted in miscarriage of justice].) No 

such miscarriage of justice occurred here. Both the prosecutor and defense counsel 

mentioned the video only in passing during their opening statements. The excerpt of the 

video shown to the jury ran less than a minute, and the prosecutor referred to it only 

briefly during his closing argument. The jury was instructed it was to be used for limited 

purposes, mostly to show intent to commit crimes for which Harrington was not 

convicted. The only purpose for which it was to be used in connection with the one count 

of which he was convicted (carjacking) was to show that that he acted with the intent to 

permanently deprive the victim of her car and acted with a motive. The record shows 

that there was abundant evidence of his intent to deprive the carjacking victim of her car 

other than the video, including the fact that Harrington was driving the stolen car two 

days after it was taken. To the extent it was arguably prejudicial to hear Harrington rap 

about having a gun, this evidence did not lead the jury to convict him on any weapons 
12

charges. We thus cannot conclude that a different verdict was reasonably probable absent 

the alleged error in admitting the evidence of the rap video. (People v. Watson (1956) 

46 Cal.2d 818, 836; People v. Holloway (2004) 33 Cal.4th 96, 128-129.) 

 In light of this conclusion, we must also reject Harrington’s argument that his trial 

attorney provided ineffective assistance of counsel in failing to object to the jury’s 

consideration of the rap video, thereby depriving him of his federal and state 

constitutional due process rights to a fair trial. First, his attorney did object to the 

admission of the video for purposes of the carjacking case, an objection that was 

specifically noted by the trial court. Second, our conclusion that the admission of the 

video was not prejudicial precludes a finding that Harrington received ineffective 

assistance. (Strickland v. Washington (1984) 466 U.S. 668, 687 [in order to establish 

ineffective assistance of counsel, defendant must show both that counsel’s performance 

was deficient and that performance prejudiced him]; In re Elizabeth G. (2001) 

88 Cal.App.4th 496, 503 [to establish prejudice, defendant must demonstrate reasonable 

probability that result would have been more favorable absent counsel’s deficient 

performance].) 

C. The Prosecutor Did Not Commit Misconduct During Closing Argument. 

 Harrington next contends that his conviction should be reversed because the 

prosecutor committed misconduct by disparaging defense counsel during closing 

argument. A full review of the parties’ arguments does not support the contention. 

 During his opening statement to the jury, defense counsel described facts that 

would purportedly be proven by the evidence but that were never actually proven or even 

mentioned. He stated that Harrington approached the carjacking victim’s car because he 

thought it belonged to his mother and that Harrington saw that the carjacking victim was 

in a dispute with a homeless man. He stated that three men decided to teach the 

carjacking victim a lesson by stealing her car and that Harrington participated against his 

wishes because he was afraid. Counsel stated that Harrington rode as a passenger in the 

vehicle for a few blocks, saw the three other men take property from the car after the 

driver parked, but then walked back to the scene of the carjacking and told the victim 
13

where her car was located. He stated that the victim responded by saying “ ‘I don’t care. 

I got cars. I don’t need that car.’ ” Counsel also stated that the woman who claimed to 

have been sexually assaulted had in fact offered to exchange oral sex for drugs from 

Harrington and that he left when the woman’s brother walked in on them. 

 The prosecutor, during his closing argument, emphasized that opening statements 

are not evidence and that no evidence was presented to support many of the claims 

presented in defense counsel’s opening statement—such as the notion that the sexualassault incident was “some sort of drugs for sex gone wrong.” When it was defense 

counsel’s turn to make his closing argument, he presented new theories about the 

carjacking. He speculated that the carjacking victim might have identified Harrington 

because she was confused from having previously seen him around the housing complex; 

overestimated the length of the attack; identified Harrington to a police officer in a 

photographic lineup partly because the officer unintentionally signaled which picture to 

choose; and failed to notice and describe to police Harrington’s gold dental work because 

Harrington did not play a significant role in the carjacking. 

 In his rebuttal argument, the prosecutor pointed out some of the differences 

between defense counsel’s various theories of the case and the evidence that was actually 

presented: “As to [the carjacking victim], in opening statement, the defense said that the 

defendant thought he saw his mom’s car; there was some homeless guy that got 

mistreated, and that’s why they were carjacking [the victim]. And then there was some 

attempt to return the car, but [the victim] has tons of cars, so she didn’t want her car back. 

 “Fast-forward to today: The argument was that well, yeah, she was carjacked, but 

she picked a guy who she knows maybe from around the complex. Maybe she’s seen 

him before. Maybe this, maybe that. [The officer who showed her a photographic 

lineup] told her to pick, kind of gave her the old wink and the nod ‘This is who you 

should pick’; that the events were under one minute. There’s no evidence of that. 

 “This is a perfect example of why your duty as a juror is to evaluate the evidence. 

[The victim] said it was five minutes. The defendant said five or ten minutes, but counsel 
14

says it must be one minute. There’s no evidence of that. There is no evidence of what 

he’s saying. 

 “And you know today ‘It must have been the teeth. She would have seen the teeth 

had she been able to identify’—all of this is to try to create confusion based on 

speculation on the evidence. That’s all it is. Throw the spaghetti up against the wall and 

see if it sticks.” (Italics added.) Defense counsel lodged an objection, which the trial 

court overruled. 

 Harrington claims that the italicized portion of the prosecutor’s argument 

amounted to misconduct because it was an attack on defense counsel’s integrity and cast 

aspersions on him. We disagree. 

 As a preliminary matter, we agree with Harrington that his objection below 

preserved the issue for appellate review. “ ‘As a general rule a defendant may not 

complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the 

same ground—the defendant made an assignment of misconduct and requested that the 

jury be admonished to disregard the impropriety. [Citations.]’ [Citation.]” (People v. 

Hill (1998) 17 Cal.4th 800, 820.) Here, although defense counsel did not specify when 

he objected that he was doing so on grounds of “prosecutorial misconduct,” this is likely 

because the trial court specifically instructed him before trial not to use the term when 

lodging objections. And the fact that counsel did not request an admonition did not 

forfeit the issue for appeal because the trial court immediately overruled the objection, 

and, as a consequence, counsel had no opportunity to make such a request. (Ibid.) 

 But although the issue was adequately preserved for appeal, we cannot conclude 

on the merits that the prosecutor committed misconduct. “ ‘The applicable federal and 

state standards regarding prosecutorial misconduct are well established. “ ‘A 

prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises 

a pattern of conduct “so egregious that it infects the trial with such unfairness as to make 

the conviction a denial of due process.” ’ ” [Citations.] 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 
15

to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill, 

supra, 17 Cal.4th at p. 819.) 

 Harrington compares the brief excerpt from the prosecutor’s rebuttal argument to 

the intemperate remarks made in People v. Hill, supra, 17 Cal.4th at page 832. Hill was a 

“rancorous trial” that involved several “unfortunate episode[s]” of the prosecutor 

disparaging defense counsel. (Id. at p. 833.) This was not the situation here. The 

prosecutor’s passing comment in this case was more akin to comments found to be 

unobjectionable in People v. Medina (1995) 11 Cal.4th 694, 758-759, where the 

prosecutor argued that “ ‘any experienced defense attorney can twist a little, poke a little, 

try to draw some speculation, try to get you to buy something . . . .’ ” 

 We conclude that there was no prosecutorial misconduct. 

D. There Was No Cumulative Error. 

 Finally, having found no prejudicial error, we reject Harrington’s argument that 

the cumulative effect of the alleged errors he identifies require reversal of the judgment. 

(People v. Wallace (2008) 44 Cal.4th 1032, 1099.) 

III. 

DISPOSITION

 The judgment is affirmed. 

 _________________________ 

 Humes, J. 

We concur: 

_________________________ 

Reardon, Acting P.J. 

_________________________ 

Rivera, J.