1

Filed 12/17/13 P. v. Sheldon CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

OSKAR W. SHELDON, 

 Defendant and Appellant. 

 A133373 

 (San Francisco County 

 Super. Ct. No. 206710) 

 Defendant Oskar W. Sheldon appeals from a judgment convicting him of domestic 

violence, assault with force likely to produce great bodily injury and false imprisonment. 

He contends the court made numerous errors with regard to the admission of evidence, 

failed to cure prejudicial prosecutorial misconduct during closing argument and 

unconstitutionally reduced the burden of proof by instructing the jury with CALCRIM 

No. 852. We reject defendant’s claims of evidentiary and instructional error and find that 

any failure by the court to cure the alleged misconduct during closing argument was 

harmless. Accordingly, we shall affirm the judgment. 

Factual and Procedural Background 

 Defendant was charged by indictment with torture (Pen. Code, § 206)(Count I), 

domestic violence (Pen. Code, § 273.5, subd. (a))(Count II), assault with force likely to 

cause great bodily injury (Pen. Code, § 245, subd. (a)(1))(Count III), and false 

imprisonment (Pen. Code, § 236)(Count IV). Allegations of personal infliction of great 

bodily injury in the context of domestic violence (Pen. Code, § 12022.7, subd. (e)) were 

attached to Counts II-IV. 
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 A jury trial began on September 9, 2010. On September 13, during jury selection 

but out of the presence of the jury, defendant entered guilty pleas to Counts II and III, 

leaving Counts I and IV and the enhancements for trial. 

 The following evidence was presented at trial: 

 In September 2006, defendant met and began a romantic relationship with the 

victim. He began renting a room in her home in the same month. In March 2007, 

however, the victim asked defendant to move out because she received a notice from the 

landlord warning her that she was going to be evicted because defendant’s behavior was 

disturbing the neighbors. 

 On April 3, 2007, the victim confronted defendant on the telephone about his 

failure to move out. After the conversation, the victim went to her parents’ home to spend 

the night because defendant sounded angry on the phone and she was afraid of him. She 

testified that for a few months he had been accusing her of stealing marijuana from him, 

and in March she had been involved in an incident during which he again accused her of 

stealing from him and threw her on the bed, put his hands around her neck, and started to 

choke and smother her. A friend who was there pulled him away. She ran out of the 

house but had not reported the incident to the police because she expected him to move 

out in a few days. 

 Later in the evening on April 3, the victim returned to her home after defendant 

left her a phone message stating that he would remove his items and she did not have to 

stay away from her home. Defendant was not at the house when she arrived, but he had 

not removed his belongings. 

 The victim was awakened by loud pounding on her door around 4:00 a.m. on 

April 4. She let defendant and his friend into her home and returned to bed. When 

defendant and his friend began making noise outside her bedroom, she feared that the 

neighbors would call the police, so she got out of bed and told him to be quiet. When 

defendant told her to “shut up,” she said she could not sleep and would have to leave. He 

responded, “You can’t go anywhere. My truck is blocking your truck. So you can’t 

leave.” 
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 Defendant became increasingly angry and began accusing the victim of stealing 

from him again. He began ransacking her home, ripping down paintings and window 

shades and throwing everything from the kitchen counter on to the floor. The victim was 

shocked and scared by defendant’s behavior. She asked him to stop but he kept yelling, 

“Fuck you bitch. Give me my money.” She looked to defendant’s friend for help, but he 

said “I’m going outside” and left. 

 Defendant kicked the victim in the shins until she fell to the ground. He continued 

to kick her after she was on the ground. He dragged her by her legs into the office and 

closed the door. He grabbed the victim by her hair and pounded her head into the ground 

repeatedly. She pleaded with him to stop, but he put his hands on her throat. Defendant 

was on top of her and she could not move. The victim testified that defendant beat her 

continuously for an hour. At one point, he picked up her sewing machine and hit her head 

with it repeatedly. He was squeezing her throat, and it was hard for her to breathe. She 

started to lose consciousness and thought she was dying. 

 The victim’s neighbors were awakened by the screaming. They heard banging 

sounds and heard a female voice say, “Help me” and “get off me” and heard an angry, 

male voice saying, “Shut up. Where’s the money, bitch?” and “Where’s the money, 

fucking bitch.” The neighbors called 911. The police arrived at the location less than 30 

minutes later. 

 San Francisco Police Officer Alan Lamb responded at 4:48 a.m. When he arrived, 

he heard a male voice scream, “Give me my money.” He also heard three loud slapping 

sounds. When Officer Lamb yelled at the second story window to let him inside the 

residence, a man told him to leave. 

 When Officer Patrice Scanlan arrived a few minutes later, the other officers were 

yelling at a second story window. Officer Scanlan saw the man in the window tell the 

officers to leave. The man carried a woman to the window, his arms hooked under her 

armpits and her face turned into his body so the officer could not see it. Her body was 

limp, and Scanlan did not know if she was unconscious or had been drinking. The man 

said, “Look. She’s fine. Go away.” He then dropped the female on the couch. Her head 
4

hit the back of the couch when she fell. The female waved at the officers and said, “I’m 

fine. Go away.” When Scanlan looked up at the window again, she saw the woman sitting 

up, unsupported, as she smoothed her hair. The officers continued to yell for the man to 

open the door and eventually, the victim opened the door for the officers. Officer Scanlon 

called for an ambulance because she saw that the victim was severely injured. Scanlan 

observed that the woman had cuts on her right foot, severe bruising and scratches on her 

face and neck, her lip was “busted” and she had blood on her nose. Both eyes were 

bloodshot. 

 Officers searched the residence but did not locate the man in the house. The 

neighbor testified that after the police arrived, he saw a man exit a nearby house, climb 

over a neighbor’s fence, and walk toward the beach. 

 The emergency room physician who treated the victim on April 4 testified 

regarding the victim’s multiple injuries. She had a hematoma around her left eye and 

bruising above the right eye. She had bruising on her neck, abrasions on her right elbow, 

a hematoma on her right hip, and bruising on her legs. Her left eye was severely swollen. 

She had a nondisplaced nasal fracture and a hematoma on the right side of the scalp. She 

was in a great deal of pain.~ (12 RT 2510)~ The doctor opined that the victim had 

suffered “significant trauma” and that her injuries were caused probably by a blow with a 

blunt object with “a significant amount of force.” 

 An inspector with the San Francisco Police Department interviewed the victim at 

the hospital on April 4. He took pictures of the injuries to her face, arms, and legs. When 

he spoke with the victim again the following day she spoke slowly during the questioning 

and identified defendant as her attacker. 

 Private investigator Don Criswell has known the victim for years. On April 10, he 

went to the victim’s home to observe and document the conditions. The living room was 

in disarray; the window blinds were lying across the sofa. The kitchen was a mess. Items 

were scattered on the floor of the office. Criswell located the sewing machine against the 

wall in the office. He saw what he believed was blood splattered on the wall near the 

sewing machine and also saw blood on the edge of the sewing machine. Criswell brought 
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the sewing machine to the police approximately five weeks after the assault. The sewing 

machine was not inspected for forensic evidence. 

 The victim’s primary care physician, Dr. Marilyn Kutscher, examined the victim 

on April 6. The victim had multiple scratches and bruises on her face and body. She had 

swollen eyeballs and decreased vision in her left eye. She had bleeding behind her ears 

suggesting she had suffered a traumatic head injury. Ten days later, the victim still had 

swelling behind her eyes, and her neck was still very sore. The victim testified that as a 

result of the attack she could not see for a few days and could not walk for six weeks. 

For a year after the incident she could not run in the manner to which she was 

accustomed. 

 Peter Lofgren testified that he went to the victim’s residence with defendant on the 

evening of April 3. When he left, defendant and the victim were not arguing. The next 

day, defendant called Lofgren to pick him up. Defendant told Lofgren that he and the 

victim had argued and that he had to move out of her residence. 

 The defense offered doctor Michael Laufer as an expert in injury reconstruction. 

Focusing on the injuries to the victim’s head and face, he identified numerous contusions 

and abrasions as well as a section of her scalp, approximately three-and-a-half to four 

inches long and an inch-and-a-half wide, where her hair was missing. He opined that 

some of the contusions were likely caused by impact with a hard, flat surface, while 

others were consistent with a non-flat object. He did not believe the sewing machine was 

likely to have caused the contusions due to the absence of any lacerations or fractures. He 

acknowledged that a sewing machine dropped on the victim’s head from only two feet 

above would not be “sufficient to actually fracture the skull” but that he “would expect at 

least a laceration of the forehead.” 

 The jury found defendant guilty of false imprisonment and found the great bodily 

injury allegations true. The court dismissed the torture count after the jury remained 

deadlocked on that charge. Defendant was sentenced to a prison term of two years on the 

domestic violence count, with a consecutive term of three years for infliction of great 
6

bodily injury, for a total sentence of five years. The court stayed the sentences for Counts 

III and IV pursuant to Penal Code section 654. 

 Defendant’s motion to file a late notice of appeal was granted on October 28, 

2011. 

Discussion

1. The court did not err in allowing Officer Scanlon to testify regarding the 

 severity of the victim’s injuries. 

 Defendant contends the court erred in admitting testimony by Officer Scanlon 

regarding the severity of the victim’s injuries, particularly the comparison to injuries she 

had observed in other domestic violence or assault cases. Officer Scanlan testified that 

she called for an ambulance when she saw the victim’s injuries “[b]ecause the injuries 

looked severe to [her].” When asked whether she had a “good memory” of this case she 

said “yes” and explained that this incident “stands out because the visible injuries were 

really severe and [she did not] normally see someone that injured.” She explained further 

that her opinion regarding the severity of the injuries was based “on the other calls [she 

had] been on. Reports [she had] taken for domestic violence assaults. Mutual combat 

fights. Usually a victim doesn’t have as severe obvious bruising and swelling and cuts . . . 

straightaway.” Defendant’s objection to Scanlon’s testimony under Evidence Code1

section 352 was overruled. 

 On appeal, defendant argues that the court abused its discretion in refusing to 

exclude Officer Scanlon’s testimony under section 352. He argues that her testimony had 

little probative value as a lay opinion because her “testimony could not help the jurors to 

determine whether [defendant] . . . had inflicted great bodily injury” and was highly 

confusing and prejudicial. He argues that “her testimony as an experienced police officer 

carried a misleading aura of authority” and “tempted the jurors to conclude that [the 

victim’s] ‘severe’ and ‘obvious’ injuries, which seemed unique to a police officer 

 

1

 All statutory references are to the Evidence Code unless otherwise noted. 
7

familiar with assault cases, must surely constitute the ‘great bodily injury’ that 

[defendant] was charged with having inflicted.” We disagree. 

 Lay opinion testimony is admissible if it is based on the witness’s own perceptions 

and personal observations and is helpful to understanding the witness’s testimony. 

(§ 800.) Scanlon’s testimony that the injuries were severe and obvious was based on her 

own observation and perception of the victim’s injuries. Her testimony that she believed 

the injuries were severe based on her experience as a police officer clarified and gave 

context to her testimony. As noted by the trial court, this testimony was also relevant to 

explain both why she immediately called for an ambulance and why she could remember 

the victim’s injuries three years after the attack. 

 Contrary to defendant’s argument, the probative value of the testimony was not 

outweighed by potential undue prejudice. That the opinion was offered by a police officer 

does not make its admission unduly prejudicial. Moreover, any potential prejudice was 

addressed by the instruction pursuant to CALCRIM No. 226 that the jury “must judge 

the testimony of each witness by the same standards, setting aside any bias or prejudice 

[they] may have.” The fact that the jurors deliberated for three days, repeatedly asking for 

clarification of relevant instructions and asking for read-back of key witness testimony 

supports the conclusion that the jury did not merely substitute Scanlon’s opinion 

regarding the severity of the injuries for its own determination that the victim suffered 

great bodily injury. 

2. The prosecutor’s reference in closing argument to stricken testimony was 

 harmless. 

 Defendant contends the prosecutor committed misconduct by referring to a 

statement made by Dr. Kutscher regarding the severity of the victim’s injuries that had 

been stricken and the court failed to cure the misconduct by failing to give an adequate 

admonition or cautionary instruction. 

 The statement in question was volunteered by Dr. Kutscher on cross-examination 

after stating that the victim had not reported to her that she was hit with a sewing 

machine: “I would add though that in my 30 years’ experience [the victim] was one of the 
8

most beaten up people I’d ever seen . . . .” Following a defense objection, this testimony 

was stricken as nonresponsive. In closing argument, however, the prosecutor referred to 

the doctor’s statement to emphasize the severity of the injuries. The prosecutor argued, 

“[A]s Dr. Kutscher said, this was one of the worst beaten women she’s seen in 30 years 

of practice.” Defense counsel objected, pointing out that the statement had been stricken, 

but the prosecutor responded that it had not. The court did not rule on the objection but 

noted that the jury could request a readback. Later, the jury in fact requested the readback 

which confirmed that the statement had been stricken. 

 The court instructed the jury pursuant to CALCRIM No. 222 that it must disregard 

evidence that was stricken.2

 The trial court also instructed the jury that “[n]othing that 

the attorneys say is evidence.” While the court’s failure to rule on the objection was 

problematic, any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) 

Under the circumstances, we must presume that the jury followed the court’s instructions 

and disregarded the stricken testimony. 

3. The court did not err in admitting Donald Criswell’s testimony that he saw blood 

 spots on the wall of the victim’s home.

 Defendant contends the court erred in admitting Criswell’s testimony about blood 

spots he observed at the victim’s house. The Attorney General argues that the court 

properly admitted the testimony as that of a percipient witness. We agree. 

 Criswell testified, over objection, that while in the victim’s office, he “saw what 

appeared to [him] to be flecks of blood on the wall.” He explained, “I’ve seen a great deal 

of this in my career and I thought I knew what I was looking at. It appeared to be the 

blood spray[ed] or splattered against the wall.” He also saw “traces of what I thought was 

blood along the . . . back edge of the sewing machine.” The trial court overruled 

 

2

 CALCRIM No. 222, as given, provides, “During the trial, the attorneys may have 

objected to questions or moved to strike answers given by the witnesses. I ruled on the 

objections according to the law. If I sustained an objection, you must ignore the question. 

If the witness was not permitted to answer, do not guess what the answer might have 

been or why I ruled as I did. If I ordered testimony stricken from the record you must 

disregard it and must not consider that testimony for any purpose.” 
9

defendant’s objection that there was no foundation for Criswell’s testimony. The court 

explained that Criswell was not testifying as an expert in blood splatter, but rather as a 

lay witness testifying as to what he thought he had seen. 

 While expert testimony is frequently used to explain or interpret blood splatter 

evidence, expert qualification is not necessary when the witness, as in this case, merely 

identifies the substance observed as what appeared to be blood and describes where the 

spots were found and what they looked like. “[T]he decisive consideration in determining 

the [necessity] of expert opinion evidence is whether the subject of inquiry is one of such 

common knowledge that [persons] of ordinary education could reach a conclusion as 

intelligently as the witness or whether, on the other hand, the matter is sufficiently 

beyond common experience that the opinion of an expert” is required. (People v. Cole

(1956) 47 Cal.2d 99, 103.) “Unfortunately, many violent crimes may require witnesses to 

testify that substances they saw in connection with the crime was blood. Technically, 

such substances probably cannot be definitively identified as blood without scientific 

testing, but courts nevertheless permit lay witnesses to give their opinion that what they 

observed appeared to be or was blood. This approach is based on the commonsensical 

conclusion that the ordinary person is exposed to blood in the course of their life 

experiences and thus is quite capable of giving an opinion that a particular substance was 

blood.” (3 Wharton’s Criminal Evidence § 12:12 (15th ed.) footnotes omitted.) The fact 

that Criswell’s opinion was based on his experience as a police investigator does not 

undermine, and in fact may strengthen, that conclusion, nor does it render his testimony 

unduly prejudicial under section 352. The trial court did not abuse its discretion in 

admitting Criswell’s testimony. 

4. The trial court properly limited evidence of the victim’s prior “psychotic 

 episode.”

 Prior to trial, the defense moved to admit evidence of the victim’s previous 

“psychotic or hallucinatory” behavior on the ground that it was relevant to the victim’s 

credibility. The documentary evidence provided for the court’s review set forth the 

relevant facts: On December 2, 2006, San Francisco police officers found the victim 
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running in the middle of the street trying to hit cars with her hands. She was screaming, 

“kill me, kill me.” When one officer approached her, she began to scream obscenities and 

nonsensical threats. The officers detained the victim as a danger to herself (Welf. & Inst. 

Code § 5150) and brought her to the hospital for a 72-hour detention and mental health 

evaluation. The psychiatric reports indicate that the victim was intoxicated when she 

arrived at the hospital and that she “has a strong family history of schizophrenia and per 

patient she [discontinued] her psychiatric medication and stopped seeing her psychiatrist 

3 weeks ago.” According to the reports, the victim believed that the police and doctors 

intended to harm her and that she was very powerful and would destroy those who 

wanted to hurt her.The court ruled that the defense could cross-examine the victim about 

the prior incident, but could not present witnesses to opine on her mental state. 

 Consistent with the court’s ruling, defense counsel cross-examined the victim 

regarding the December 2006 incident. The victim acknowledged having contact with 

police in December 2006 but claimed that she could not remember any of the details of 

the incident. She testified that she believes she was given a “spiked” drink at a concert 

that caused her to hallucinate. She did not recall telling doctors that she stopped taking 

her “mental health medications” and denied that she was taking any such medications. 

She explained that her mental health has always been very good and that the only 

prescription medication she takes is for a learning disability. 

 After the victim’s testimony, defense counsel renewed his request that a 

psychiatrist be allowed to testify regarding the December 2006 incident. The court 

denied the motion, citing relevance and section 352. The court explained that based on 

the court’s review of the psychiatric records there is “no evidence that would tie that 

incident to this incident” and that presentation of live testimony on the prior incident 

would be irrelevant and time consuming. 

 Defendant contends that the court abused its discretion in excluding this 

testimony. He argues that “[e]xclusion of this evidence permitted [the victim] to testify as 

if she were competent and credible and thereby deprived [defendant] of his state and 

federal constitutional right to due process.” 
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 “[M]ental illness or emotional instability of a witness can be relevant on the issue 

of credibility, and a witness may be cross-examined on that subject, if such illness affects 

the witness’s ability to perceive . . . .” (People v. Gurule (2002) 28 Cal.4th 557, 591–

592.) As set forth above, the defense cross-examined the witness extensively regarding 

the December incident. She acknowledged hallucinating on the night in question but 

denied any history of mental illness. As noted by the trial court, the record does not 

contain any evidence or suggestion that the witness suffers from an ongoing mental 

illness or has a history of hallucinations apart from the December incident. The trial court 

reasonably concluded that further testimony regarding the incident by one of the treating 

psychiatrists would be cumulative and unnecessarily time consuming. Accordingly, the 

court did not abuse its discretion in excluding the additional requested testimony. 

5. The court did not err by instructing the jury with CALCRIM No. 852. 

 Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s 

disposition to commit such acts. (§ 1101.) However, the Legislature has created 

exceptions to this rule in cases involving sexual offenses (§ 1108) and domestic violence 

(§ 1109). The jury was instructed on the application of section 1109 as follows: “The 

People presented evidence defendant committed domestic violence that was not charged 

in this case, specifically assaulting [the victim] on [sic] March 2007. . . .[¶] . . .You may 

consider this evidence only if the People have proved by a preponderance of the evidence 

the defendant in fact committed the uncharged domestic violence. [¶] Proof by a 

preponderance of the evidence is a different burden of proof from proof beyond a 

reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude 

that it is more likely than not that the fact is true. If the People have not met this burden 

of proof, you must disregard this evidence entirely. If you decide the defendant 

committed the uncharged domestic violence, you may but are not required to conclude 

from any evidence the defendant was disposed and inclined to commit domestic violence 

and based on that decision, also conclude defendant was likely to commit and did commit 

torture and physical imprisonment as charged here. [¶] If you conclude defendant 

committed the uncharged domestic violence, that conclusion is only one factor to 
12

consider along with all the other evidence. It is not sufficient by itself to prove the 

defendant is guilty of either charge. The People must still prove each charge and 

allegation beyond a reasonable doubt. Do not consider this evidence for any other 

purpose except for the limited purpose stated in this instruction . . . .” Defendant contends 

that CALCRIM No. 852 as given in this case violated his due process rights because it 

unconstitutionally altered the burden of proof. The Attorney General correctly notes that 

the arguments advanced by defendant have been rejected on several occasions. (People v. 

Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford) [rejecting due process challenge to 

CALJIC No. 2.50.01 which explains the application of Evidence Code section 1108].; 

People v. Reyes (2008) 160 Cal.App.4th 246, 250–253 (Reyes) [finding that there is no 

material difference between the instruction found constitutional in Reliford and 

CALCRIM No. 852]; People v. Johnson (2008) 164 Cal.App.4th 731, 738–740 (Johnson) 

[same].) 

 Defendant argues that Reliford is not controlling because the instruction in that 

case provided “If you find that the defendant committed a prior sexual offense . . ., you 

may, but are not required to, infer that the defendant had a disposition to commit the 

same or similar type sexual offenses,” (People v. Reliford, supra, 29 Cal.4th at p. 1012, 

italics added) whereas CALCRIM No. 852 provides, “If you decide the defendant 

committed the uncharged domestic violence, you may but are not required to conclude

from any evidence that the defendant was disposed to or inclined to commit domestic 

violence and . . . torture and physical imprisonment as charged here.” (Italics added.) He 

argues that there is a significant difference between the words “infer” and “conclude”: 

“To ‘infer’ designates an analytic step that is one part of a longer process. To ‘conclude’ 

refers to the final step in that process. Once the jury has arrived at a conclusion, no 

further reasoning is required: the process is complete. The use of ‘conclude’ thus makes 

the following sentences, which advise the jury that it still needs to find each offense 

proved beyond a reasonable doubt, directly contradictory. If the jury’s analytic process 

has reached a ‘conclusion,’ no further analysis is required. Because that ‘conclusion’ 

could have been reached by a preponderance of the evidence rather than proof beyond a 
13

reasonable doubt, the instruction as given does not pass constitutional muster.” He 

suggests that People v. Johnson and People v. Reyes are not persuasive insofar as they 

fail to “perceive or address the difference between ‘infer’ and ‘conclude.’ ” 

 We do not find the distinction persuasive. “Conclude” and “infer” are virtually 

synonomous. One definition of “infer” is “to form (an opinion) from evidence : to reach 

(a conclusion) based on known facts.” A definition of “conclude” is “to reach as a 

logically necessary end by reasoning : infer on the basis of evidence.” 

(http://www.merriam-webster.com.) Given the common definition of these words, there 

is no material difference between the instruction upheld in Reliford and CALCRIM No. 

852. Moreover, in light of the clear direction in the final paragraph of the instruction that 

the jury’s “conclusion” that defendant committed the uncharged domestic violence “is 

not sufficient by itself to prove the defendant is guilty of either charge” and that “[t]he 

People must still prove each charge and allegation beyond a reasonable doubt,” a jury 

would not likely be misled by this instruction. (People v. Ramos (2008) 163 Cal.App.4th 

1082, 1088 [“ ‘ “In determining whether error has been committed in giving or not giving 

jury instructions, we must consider the instructions as a whole . . . [and] assume that the 

jurors are intelligent persons and capable of understanding and correlating all jury 

instructions which are given” ’ ”].) 

6. Defense counsel did not render ineffective assistance by failing to object to the 

 verdict form. 

 The verdict form for the great bodily injury enhancement allegation provided as 

follows: “The Defendant has previously pleaded guilty to the crime of Assault With 

Force Likely to cause Great Bodily Injury, in violation of Section 245(a)(1) of the 

California Penal Code. [¶] We the Jury in the above-entitled cause, find the allegation 

that the Defendant, Oskar Sheldon, personally inflicted great bodily injury during the 

commission of the offense, within the meaning of Section 12022.7(e) of the California 

Penal Code.” Although defense counsel initially indicated an intent to object to the 

verdict form, when given an opportunity to place his objection on the record, he only 

made a record of his objections to the instructions and failed to mention the verdict form. 
14

 Defendant contends his attorney’s failure to object constituted ineffective 

assistance because the verdict form misled the jury and shifted the burden of proof. He 

argues, “the verdict form had the effect of a constitutionally defective instruction. It did 

not simply ask the jurors whether or not [defendant] had inflicted great bodily injury. 

Instead, it first advised them that he had already entered a guilty plea to the charge of 

assault with force that was likely to cause such injury. This preface was irrelevant and 

overly suggestive. It allowed the jurors to reason that only if something unlikely had 

occurred — only if force that was likely to cause great bodily injury did not actually 

cause it — could they choose ‘not true’ on the verdict form. In this way, the verdict form 

shifted the burden of proof from the prosecution to the defense.” 

 The standard for establishing ineffective assistance of counsel is well settled. The 

“ ‘defendant bears the burden of showing, first, that counsel’s performance was deficient, 

falling below an objective standard of reasonableness under prevailing professional 

norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably 

probable that the verdict would have been more favorable to him.’ ” (People v. 

Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984) 

466 U.S. 668, 687, 694.) 

 Without considering whether the failure to object was a tactical decision or even a 

deficiency, we reject defendant’s claim based on the absence of any prejudice. 

(Strickland v. Washington, supra, 466 U.S. at p. 697 [“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”].) 

 In this case, it is not reasonably probable that the verdict would have been more 

favorable had the verdict form been phrased differently. The jury was clearly instructed 

that on counts 2, 3, and 4, it must “decide whether the people have proved the additional

allegation the defendant personally inflicted great bodily injury on [the victim] during the 

commission of that crime.” (Italics added.) “Great bodily injury” was defined for the jury 

as “significant and substantial physical injury. It is an injury that is greater than minor or 

moderate.” During his closing argument, defense counsel advised the jury that defendant 
15

had taken responsibility for certain conduct that occurred on April 4, including domestic 

violence and an assault by means of force likely to produce great bodily injury, but he 

attempted to draw a distinction between the victim’s “swelling and bruising” and 

“someone who has suffered extensive, extreme great bodily injury as a result of domestic 

violence.” He argued, “The charge that [defendant] pled to in terms of the assault, great 

bodily injury with force likely to produce great bodily injury. Not force that produced 

great bodily injury, not force that’s demonstrated to have produced great bodily injury but 

force likely. You sitting as the jury . . . are the ones that determine whether or not the 

bruising and swelling, discoloration and discomfort and taking of some pain pills is equal 

to great bodily injury.” Thus, counsel dispelled any potential confusion or 

misunderstanding by the jury regarding the effect of defendant’s guilty plea on the 

enhancement allegation. Finally, the jury’s extensive deliberations on this issue strongly 

suggests that the jury did not merely rely on the guilty plea to presume the injury actually 

inflicted met the definition of great bodily injury. 

7. There was no cumulative error.

 Having found no prejudicial error, we reject defendant’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.) 
16

Disposition 

 The judgment is affirmed. 

 _________________________ 

 Pollak, J. 

We concur: 

_________________________ 

McGuiness, P. J. 

_________________________ 

Siggins, J.