1 Filed 12/17/13 P. v. Sheldon CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 fro m 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 instruc ting the jury with CALCRIM No. 852. We reject defendant’s claims of evidentiary and inst ructional error and find that any failure by the court to cure the alle ged misconduct during closing argument was harmless. Accordingly, we sh all 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), as sault with force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(1))(Count III), and false imprisonment (Pen. Code, § 236)(Count IV). A llegations 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.2 A jury trial began on September 9, 2010 . On September 13, dur ing jury selection but out of the presence of the jury, defendant entered gu ilty pleas to Counts II and III, leaving Counts I and IV and th e 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 ho me in the same month. In March 2007, however, the victim asked defe ndant 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 vi ctim confronted defendant on the telephone about his failure to move out. After the conversation, th e 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 invo lved in an incident during which he again accused her of stealing from him and threw her on the bed, pu t his hands around her neck, and started to
choke and smother her. A friend who was th ere 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 vi ctim returned to he r home after defendant left her a phone message stating that he woul d 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 d oor around 4:00 a.m. on April 4. She let defendant and his friend in to 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 ou t 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 tr uck is blocking your truck. So you can’t
leave.”3 Defendant became increasingl y angry and be gan accusing the victim of stealing from him again. He began ransacking her home, ripping down pa intings and window shades and throwing everythi ng 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 lo oked to defendant’s fr iend 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 h ead into the ground repeatedly. She pleaded with him to stop, but he put hi s hands on her throat. Defendant was on top of her and she coul d not move. The victim testif ied that defendant beat her continuously for an hour. At one point, he picked up her sewing mach ine and hit her head with it repeatedly. He was s queezing her throat, and it was hard for her to breathe. She
started to lose consciousne ss 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 mo ney, 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 re sponded 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 se cond story window to let him inside the residence, a man told him to leave.
When Officer Patrice Scanlan arrived a fe w minutes later, the other officers were yelling at a second story window. Officer Sc anlan saw the man in the window tell the
officers to leave. The man ca rried 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 aw ay.” He then dropped the fe male on the couch. Her head4 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. Th e officers continued to yell for the man to open the door and eventually, the victim opene d the door for the offi cers. Officer Scanlon
called for an ambulance because she saw that the victim was severe ly injured. Scanlan observed that the woman had cuts on her righ t foot, severe bruisi ng 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 ma n exit a nearby house, climb over a neighbor’s fence, and walk toward the beach. The emergency room physician who tr eated 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, a nd bruising on her legs. Her left eye was severely swollen. She had a nondisplaced nasal fracture and a hema toma on the right side of the scalp. She was in a great deal of pain.~ (12 RT 2 510)~ 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 th e injuries to her face, arms, and legs. When he spoke with the victim ag ain the following day she spoke slowly during the questioning
and identified defendant as her attacker. Private investigator Don Criswell has know n the victim for year s. On April 10, he
went to the victim’s home to observe and document the co nditions. 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. Cr iswell located the sewing machine against the
wall in the office. He saw what he believe d was blood splattered on the wall near the sewing machine and also saw blood on the edge of the sewing machine. Criswell brought5 the sewing machine to the poli ce approximately five weeks after the assault. The sewing machine was not inspected for forensic evidence. The victim’s primary care physician, D r. Marilyn Kutscher, examined the victim on April 6. The victim had mu ltiple 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 da ys 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 fe w days and could not walk for six weeks. For a year after the incident she could not run in the manne r to which she was
accustomed. Peter Lofgren testified that he went to th e 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 in juries to the victim’s head and fa ce, he identified numerous contusions
and abrasions as well as a section of her scal p, 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 objec t. He did not believe the sewing machine was likely to have caused the contusions due to th e 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 fractur e the skull” but that he “would expect at
least a laceration of the forehead.” The jury found defendant guilty of fals e imprisonment and found the great bodily injury allegations true. The court dismissed the torture count after the jury remained deadlocked on that charge. De fendant was sentenced to a prison term of two years on the domestic violence count, with a consecutive te rm of three years for infliction of great6 bodily injury, for a tota l sentence of five years. The court stayed the sentences for Counts III and IV pursuant to Pe nal Code section 654.
Defendant’s motion to file a late notic e of appeal was granted on October 28,
2011.
Discussion

1. The court did not err in allowing Offi cer Scanlon to testify regarding the severity of the victim’s injuries. Defendant contends the c ourt erred in admitting tes timony by Officer Scanlon regarding the severity of the victim’s injuries , particularly the comp arison to injuries she
had observed in other domestic vi olence 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].” Wh en 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 th e injuries was based “on the other calls [she had] been on. Reports [she had] taken fo r domestic violence assa ults. 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 Code 1
section 352 was overruled. On appeal, defendant argues that the cour t abused its discretion in refusing to exclude Officer Scanlon’s testimony under se ction 352. He argues that her testimony had little probative value as a lay opi nion because her “testimony co uld not help the jurors to determine whether [defendant] . . . had in flicted 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 “t empted the jurors to conclude that [the victim’s] ‘severe’ and ‘obv ious’ 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 ha ving inflicted.” We disagree. Lay opinion testimony is ad missible if it is based on the witness’s own perceptions and personal observations an d 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 expe rience 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 immediat ely called for an ambulance and why she could remember the victim’s injuries thr ee years after the attack. Contrary to defendant’s argument, the probative value of the testimony was not outweighed by potential undue prej udice. That the opinion was offered by a police officer does not make its admission unduly prejudicia l. Moreover, any potential prejudice was addressed by the instruction pursuant to CA LCRIM 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 th ree 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 determina tion 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 se verity 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 volunteere d by Dr. Kutscher on cross-examination after stating that the victim had not repor ted to her that she was hit with a sewing machine: “I would add though th at in my 30 years’ experience [the victim] was one of the8 most beaten up people I’d ever seen . . . .” Following a defense objection, this testimony was stricken as nonresponsive. In closing argument, howeve r, the prosecutor referred to the doctor’s statement to empha size the severity of the injuries. The prosecutor argued, “[A]s Dr. Kutscher said, this was one of th e worst beaten women sh e’s seen in 30 years of practice.” Defense counsel objected, pointi ng out that the statemen t 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 stat ement 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 ev idence.” 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 c ourt erred in admitting Cris well’s testimony about blood spots he observed at the victim’s house. Th e 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 th e 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 se wing machine.” The trial court overruled

2 CALCRIM No. 222, as given, provides, “D uring the trial, the attorneys may have objected to questions or moved to strike answers given by th e 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 fou ndation 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 app eared 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 subjec t 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 opin ion of an expert” is required. ( People v. Cole (1956) 47 Cal.2d 99, 103.) “Unfortunately, ma ny violent crimes may require witnesses to testify that substances they saw in connection with the crime was blood. Technically, such substances probably ca nnot be definitively identified as blood without scientific testing, but courts neverthele ss 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 expo sed 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.) footnot es omitted.) The fact that Criswell’s opinion was based on his expe rience as a police investigator does not undermine, and in fact may strengthen, that conclusion, nor does it render his testimony unduly prejudicial under sect ion 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 ad mit evidence of the victim’s previous “psychotic or hallucinatory” behavior on the ground that it was relevant to the victim’s credibility. The documen tary evidence provid ed for the court’s review set forth the relevant facts: On December 2, 2006, San Francisco police office rs found the victim10 running in the middle of the street trying to hit cars with her hands. She was screaming, “kill me, kill me.” When one officer approach ed her, she began to scream obscenities and
nonsensical threats. The officers detained the victim as a da nger 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 st rong family history of schizophrenia and per patient she [discontinued] her psychiatric me dication and stopped se eing 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 ve ry 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 w itnesses to opine on her mental state. Consistent with the court’s ruling, de fense counsel cross-examined the victim regarding the December 2006 incident. The victim acknowledged having contact with police in December 2006 but clai med that she could not rememb er 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 go od and that the only prescription medication she takes is for a learning disability. After the victim’s testimony, defens e counsel renewed his request that a psychiatrist be allowed to testify regard ing the December 2006 incident. The court denied the motion, citing relevance and sec tion 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 presen tation of live testimony on the prior incident
would be irrelevant and time consuming.
Defendant contends that the court a bused 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 cr edible and thereby deprived [defendant] of his state and federal constitutional right to due process.”11 “[M]ental illness or emoti onal instability of a witness can be relevant on the issue of credibility, and a witness may be cross-examin ed 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 ha llucinating on the nigh t in question but denied any history of mental illness. As not ed by the trial court, the record does not contain any evidence or suggestion that th e witness suffers from an ongoing mental illness or has a history of hallucinations apar t from the December incident. The trial court reasonably concluded that further testimony re garding the incident by one of the treating psychiatrists would be cumula tive and unnecessarily time c onsuming. Accordingly, the
court did not abuse its discretion in excl uding the additional requested testimony.
5. The court did not err by instructin g the jury with CALCRIM No. 852

. Evidence of prior criminal acts is ordi narily inadmissible to show a defendant’s disposition to commit such acts. (§ 1101.) However, the Legislature has created exceptions to this rule in cases involving se xual offenses (§ 1108) and domestic violence (§ 1109). The jury was instructed on the application of section 1109 as follows: “The People presented evidence defendant committ ed domestic violence that was not charged in this case, specifically assaulting [the vic tim] 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 comm itted the uncharged domestic violence. [¶] Proof by a preponderance of the evidence is a differe nt burden of proof from proof beyond a reasonable doubt. A fact is proved by a prep onderance 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 domest ic violence, you may but ar e 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 char ged here. [¶] If you conclude defendant committed the uncharged domest ic violence, that conclusi on is only one factor to12 consider along with all the other evidence. It is not sufficient by itself to prove the defendant is guilty of eith er 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 lim ited purpose stated in this instru ction . . . .” 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 applic ation of Evidence Co de section 1108].; People v. Reyes (2008) 160 Cal.App. 4th 246, 250–253 ( Reyes ) [finding that there is no
material difference between the in struction 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 becaus e 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 pr ovides, “If you decide the defendant committed the uncharged domestic violen ce, you may but are not required to conclude from any evidence that the defe ndant was disposed to or inclined to commit domestic violence and . . . torture and physical imprison ment as charged here.” (Italics added.) He argues that there is a significant differenc e 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 c ontradictory. 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 a13 reasonable doubt, the instruction as give n does not pass constitu tional 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 persuasi ve. “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 de finition 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 betwee n 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 co mmitted the uncharged domestic violence “is not sufficient by itself to prove the defendant is guilty of e ither charge” and that “[t]he People must still prove each charge and a llegation 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 cons ider the instructions as a whol e . . . [and] assume that the jurors are intelligent persons and capable of understandi ng 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 plea ded guilty to the crim e 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 bod ily injury during the commission of the offense, w ithin 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 objec tion on the record, he only made a record of his objections to the instru ctions and failed to men tion the verdict form.14 Defendant contends his attorney’s failure to obj ect constituted ineffective
assistance because the ve rdict form misled the jury and shifted the burden of proof. He argues, “the verdict form had the effect of a constitutionally defectiv e instruction. It did not simply ask the jurors whether or not [d efendant] had inflicted great bodily injury. Instead, it first advised them th at he had already entered a gu ilty plea to the charge of
assault with force that was likely to cause such in jury. This preface was irrelevant and overly suggestive. It allowed the juro rs to reason that only if something unlikely had occurred — only if force that was likely to cause great bod ily 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, firs t, that counsel’s performance was deficient, falling below an objective standard of re asonableness under pr evailing professional norms. Second, a defendant must establish th at, 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 gr ound of lack of sufficient pr ejudice, which we expect will often be so, that course should be followed”].) In this case, it is not reasonably probabl e 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 “d ecide whether the people have proved the additional allegation the defendant personally inflicted gr eat bodily injury on [the victim] during the commission of that crime.” (Ita lics added.) “Great bodily inju ry” 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 advi sed the jury that defendant15 had taken responsibility for certain conduct th at occurred on April 4, including domestic violence and an assault by means of force likel y 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 th at’s demonstrated to have produced great bodily injury but force likely. You sitting as the jury . . . ar e the ones that determine whether or not the bruising and swelling, discolora tion and discomfort and taking of some pain pills is equal to great bodily injury.” Thus, counsel dispelled an y potential confusion or misunderstanding by the jury regarding the e ffect of defendant’s guilty plea on the enhancement allegation. Finally, the jury’s ex tensive 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.