Filed 12/15/21 P. v. Inzunza CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VERONICA INZUNZA,

Defendant and Appellant.

 D077957

 (Super. Ct. No. SCS300262)

APPEAL from a judgment of the Superior Court of San Diego County, 

Stephanie Sontag, Judge. Affirmed.

Denise M. Rudasill, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. 

Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and 

Respondent.

A jury found Veronica Inzunza guilty of two counts of possession of 

heroin for purposes of sale (Health & Saf. Code, § 11351; counts 1 and 6), two 
2

counts of possession of methamphetamine for purposes of sale (Health & Saf. 

Code, § 11378; counts 2 and 4), one count of failure to appear while on bail 

(Pen. Code, § 1320.5; count 3), one count of transportation of

methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 5), 

and one count of transportation of heroin for sale (Health & Saf. Code, 

§ 11352, subd. (a); count 7). The jury also made a true finding regarding 

weight allegations for counts 2, 4 and 6. (Pen. Code, §§ 1203.073, subd. (b)(2), 

1203.07, subd. (a)(1).) 

The trial court sentenced Inzunza to a term of five years, eight months, 

with an order that Inzunza be released on mandatory supervision after three 

years. 

Inzunza contends that the prosecutor made several misstatements 

during closing argument that constituted prosecutorial error. According to 

Inzunza, because defense counsel did not object to the prosecutorial error, she 

received ineffective assistance of counsel, and we should reverse her 

conviction on counts 1, 2, 4 and 6 on that ground. We conclude that Inzunza’s 

argument lacks merit, and we accordingly affirm the judgment.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the afternoon of April 6, 2018, a National City police officer 

contacted Javier Flores, who was standing outside a motel room. The officer 

developed suspicion that there were drugs in Flores’s motel room and 

indicated he was going to conduct a search. Flores stated that his girlfriend 

was inside the room taking a shower. When the motel room door was opened, 

Inzunza was inside the room. Police searched the room and located drugs in 

two locations. First, inside a backpack that belonged to Inzunza, police 

located (1) a baggie containing 13.5 grams of methamphetamine; (2) a baggie 
3

containing 1.6 grams of heroin; (3) a bindle containing 1.1 grams of 

methamphetamine; (4) several new unused plastic baggies in two sizes; (5) a 

pipe for smoking methamphetamine; (6) used syringes; (7) a cell phone; and 

(8) a knife. Second, inside the refrigerator, behind a piece of clothing, officers 

found (1) 24.8 grams of methamphetamine; (2) 10.6 grams of heroin; and (3) a 

digital scale. Items associated with the use or sale of drugs were also found 

in other locations in the room, including two more cell phones; additional 

unused baggies; a powerful lighter typically employed by methamphetamine 

and heroin users; a bottle cap with heroin residue; another digital scale;

walkie talkies; and a piece of paper that appeared to contain mathematical 

calculations associated with drug sales. When Inzunza was searched, officers

found a total of $369.00 in various denominations on her person. No 

significant amount of money was found on Flores. When interviewed by 

police at the scene, Flores admitted that he sold methamphetamine but 

contended that he sold only $50.00 worth of drugs per day. Flores and 

Inzunza were both arrested for possessing drugs for sale. 

Ten days later on April 16, 2018, Flores and Inzunza were out of 

custody when a Coronado police officer responded to a call regarding a 

suspicious vehicle circling the block at 12:07 a.m. When the officer located 

and approached the vehicle, Inzunza was in the driver’s seat of the car with 

the engine running but the lights off. Flores was in the backseat. When the 

vehicle was searched, police located a bag on the front passenger seat, inside 

of which was a zippered case that held two clear plastic bags containing the 

following: (1) 46.53 grams of heroin and (2) 46.03 grams of 

methamphetamine. A clear bag containing approximately 100 unused small 

baggies was on the driver’s seat. In the backseat area, police found a knife 

and the top of a can, which is typically used to prepare heroin for injection. 
4

When Inzunza exited the vehicle, she was holding a methamphetamine pipe.

Flores and Inzunza were arrested. 

In a consolidated amended information, Inzunza was charged with two 

counts arising from the April 6, 2018 arrest: possession of heroin for the 

purpose of sale (Health & Saf. Code, § 11351); and possession of 

methamphetamine for the purpose of sale (id., § 11378), with the further 

allegation that the weight of the methamphetamine was at least 28.5 grams 

(Pen. Code, § 1203.073, subd. (b)(2)). Inzunza was charged with four counts 

arising from the April 16, 2018 arrest: possession of methamphetamine for 

the purpose of sale (Health & Saf. Code, § 11378), with the further allegation 

that the weight was at least 28.5 grams (Pen. Code, § 1203.073, subd. (b)(2));

transport for sale of methamphetamine (Health & Saf. Code, § 11379, 

subd. (a)); possession of heroin for the purpose of sale (id., § 11351), with the 

further allegation that the weight was at least 14.25 grams (Pen. Code, 

§ 1203.07(a)(1)); and transport for sale of heroin (Health & Saf. Code, 

§ 11352, subd. (a)). Inzunza was also charged with failing to appear while on 

bail. (Pen. Code, § 1320.5).1

During trial, a detective testified as an expert witness on behalf of the 

People to explain the quantities of drugs that a user typically consumes and 

possesses, as well as the quantities of drugs that are typically offered for sale. 

The detective further offered an opinion as to whether Inzunza possessed for 

sale the drugs that she was found with on April 6 and April 16, 2018. The 

detective concluded that Inzunza possessed the drugs for the purpose of 

selling them. 

1 As the jury was informed through a stipulation, the count alleging 

failure to appear was based on Inzunza’s failure to appear on November 9, 

2018, after she was released from custody on bail, resulting in a bench 

warrant and her eventual remand into custody on December 12, 2018. 
5

The defense presented the expert testimony of Arthur Fayer, who is 

trained in the field of drug and alcohol abuse and works as a drug/alcohol 

assessor, finding appropriate treatment programs for people in custody who 

are ordered to enter treatment. Fayer explained that he was also a former 

drug user and dealer. Among other things, Fayer testified as to his 

understanding of the amount of drugs typically consumed by a heavy user 

and what he views as indications that someone is selling drugs. When 

presented with hypothetical situations mirroring the facts of Inzunza’s case, 

Fayer opined that the woman in the hypothetical situations may have simply 

been a user of the drugs, while the male was the person doing the selling. 

During closing argument, defense counsel argued that as between 

Inzunza and Flores, the People had not established beyond a reasonable 

doubt that Inzunza was the person selling the drugs, rather than merely 

using them, while Flores sold them. Defense counsel accordingly urged the

jury to find Inzunza guilty of the lesser included offenses of possession rather 

than convicting her of possession for the purpose of sale. 

The jury found Inzunza guilty on all counts as charged. The trial court 

imposed a sentence of five years, eight months, with an order that Inzunza be

released on mandatory supervision after serving three years in custody. 

II.

DISCUSSION

Inzunza seeks reversal of her two convictions for possessing heroin for 

sale (Health & Saf. Code, § 11351; counts 1 and 6) and her two convictions for 

possessing methamphetamine for sale (Health & Saf. Code, § 11378; counts 2 

and 4). According to Inzunza, reversal is required because of certain 

statements that the prosecutor made during closing argument which 

constituted prosecutorial error. The prosecutor’s statements addressed
6

(1) the element of possession; (2) the testimony of defense expert Fayer; and 

(3) the People’s burden of proof. According to Inzunza, she received 

ineffective assistance of counsel because defense counsel failed to object to the 

prosecutorial error and failed to request that the jury be admonished. 

A. Applicable Legal Standards

Before turning to the specific prosecutorial statements challenged by 

Inzunza, we review the applicable legal standards. The law governing claims 

of prosecutorial error is well established.2 As relevant here, “ ‘it is improper 

for the prosecutor to misstate the law generally [citation], and particularly to 

attempt to absolve the prosecution from its prima facie obligation to overcome 

reasonable doubt on all elements [citation].’ ” (People v. Cortez (2016) 63 

Cal.4th 101, 130.) It is also improper to “resort to personal attacks on the 

integrity of opposing counsel” (People v. Bell (1989) 49 Cal.3d 502, 538) and to 

misstate the facts (People v. Boyette (2002) 29 Cal.4th 381, 435 (Boyette)). 

“Improper comments violate the federal Constitution when they constitute a 

pattern of conduct so egregious that it infects the trial with such unfairness 

as to make the conviction a denial of due process. [Citation.] Improper

comments falling short of this test nevertheless constitute misconduct under 

state law if they involve use of deceptive or reprehensible methods to attempt 

to persuade either the court or the jury. [Citation.] To establish misconduct, 

defendant need not show that the prosecutor acted in bad faith. [Citation.] 

However, she does need to ‘show that, “[i]n the context of the whole argument 

2 We use the term “prosecutorial error” rather than “prosecutorial 

misconduct,” although the terms are often used interchangeably. As our 

Supreme Court has explained, “ ‘[t]he term prosecutorial “misconduct” is 

somewhat of a misnomer to the extent that it suggests a prosecutor must act 

with a culpable state of mind. A more apt description of the transgression is 

prosecutorial error.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 666-667

(Centeno).) 
7

and the instructions” [citation], there was “a reasonable likelihood the jury 

understood or applied the complained-of comments in an improper or 

erroneous manner.” ’ [Citation.] If the challenged comments, viewed in 

context, ‘would have been taken by a juror to state or imply nothing harmful, 

[then] they obviously cannot be deemed objectionable.’ ” (Cortez, at p. 130.)

“A claim of prosecutorial misconduct is ordinarily preserved for appeal 

only if the defendant made ‘a timely and specific objection at trial’ and 

requested an admonition. [Citations.] ‘ “The primary purpose of the 

requirement that a defendant object at trial to argument constituting 

prosecutorial misconduct is to give the trial court an opportunity, through 

admonition of the jury, to correct any error and mitigate any prejudice.”

[Citation.]’ [Citation.] Consistent with that purpose, ‘[a] court will excuse a 

defendant’s failure to object only if an objection would have been futile’

[citation], or if an admonition would not have mitigated the harm caused by 

the misconduct.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 

853.)

Here, it is undisputed that defense counsel made no objection to any of 

the statements that Inzunza identifies on appeal as constituting 

prosecutorial error. Inzunza does not contend that it would have been futile 

for defense counsel to object or that an admonition would have failed to 

mitigate the harm. Instead, recognizing that defense counsel did not 

preserve the issue for appeal, Inzunza argues that she received ineffective

assistance of counsel because defense counsel did not object at trial to the 

alleged instances of prosecutorial misconduct. 

“ ‘A defendant whose counsel did not object at trial to alleged 

prosecutorial misconduct can argue on appeal that counsel’s inaction violated 

the defendant’s constitutional right to the effective assistance of counsel.’ ” 
8

(Centeno, supra, 60 Cal.4th at p. 674.) “When challenging a conviction on 

grounds of ineffective assistance, the defendant must demonstrate counsel’s 

inadequacy. To satisfy this burden, the defendant must first show counsel’s 

performance was deficient, in that it fell below an objective standard of 

reasonableness under prevailing professional norms. Second, the defendant 

must show resulting prejudice, i.e., a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the proceeding would have 

been different. When examining an ineffective assistance claim, a reviewing 

court defers to counsel’s reasonable tactical decisions, and there is a 

presumption counsel acted within the wide range of reasonable professional 

assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)

“It is particularly difficult to prevail on an appellate claim of ineffective 

assistance. On direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was 

asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation. All other claims of ineffective assistance are more 

appropriately resolved in a habeas corpus proceeding.” (Mai, supra, 57 

Cal.4th at p. 1009.) “ ‘[T]he decision facing counsel in the midst of trial over 

whether to object to comments made by the prosecutor in closing argument is 

a highly tactical one’ [citation], and ‘a mere failure to object to evidence or 

argument seldom establishes counsel’s incompetence’ ” (Centeno, supra, 60 

Cal.4th at p. 675.) Thus, although “[a] defendant whose counsel did not 

object at trial to alleged prosecutorial misconduct can argue on appeal that 

counsel’s inaction violated the defendant’s constitutional right to the effective 

assistance of counsel,” an “appellate record, however, rarely shows that the 

failure to object was the result of counsel’s incompetence; generally, such 
9

claims are more appropriately litigated on habeas corpus, which allows for an 

evidentiary hearing where the reasons for defense counsel’s actions or 

omissions can be explored.” (People v. Lopez (2008) 42 Cal.4th 960, 966

(Lopez).) 

With these legal principles in mind, we turn to the three categories of 

comments by the prosecutor during closing argument on which Inzunza bases 

her claim that defense counsel provided ineffective assistance by failing to 

object. 

B. The Prosecutor’s Statements About the Element of Possession

The first instance of alleged prosecutorial error occurred during the 

prosecutor’s initial closing argument. Specifically, in addressing the 

elements of the counts alleging possession of a controlled substance for sale 

(heroin or methamphetamine), the prosecutor made the following statement:

“So the law says for possession two or more people may possess 

something at the same time. So I know sometimes it’s contrary, 

right? You are thinking possession. You are thinking it’s in my 

hand, it’s in my pocket. But that’s not how the law defines it. 

The law says obviously this item can be possessed either because 

of our control, because of our knowledge, because this is ours. 

And that’s why the law goes on to say a person does not have to 

actually hold or touch something to possess it. It’s enough if you 

have the right to control it either personally or through someone

else. So if you know about it, you are in a room with it, you are in 

a car with it, you possess it, right? It’s as simple as that. It 

doesn’t have to be on your person.” 

According to Inzunza, this argument improperly stated the law because 

knowledge of the presence of an illegal substance alone is not sufficient for 

possession to exist.3 Specifically, Inzunza contends that the prosecutor 

3 The jury was instructed with CALCRIM No. 2302 with regard to the 

crime of possessing a drug for the purpose of sale. The instruction clearly 
10

seemed to state that knowledge alone could establish possession when she 

said the following: (1) “So if you know about it, you are in a room with it, you 

are in a car with it, you possess it, right?” and (2) “The law says obviously 

this item can be possessed either because of our control, because of our

knowledge, because this is ours.” (Italics added.) 

As we will explain, Inzunza has not established on direct appeal that 

defense counsel’s failure to object to this statement constituted ineffective 

assistance.

First, defense counsel could have had a rational tactical reason for 

failing to object. (Mai, supra, 57 Cal.4th at p. 1009 [“[o]n direct appeal, a 

conviction will be reversed for ineffective assistance only if . . . the record 

affirmatively discloses counsel had no rational tactical purpose for the 

challenged act or omission . . . .”].) Even assuming that the prosecutor’s 

statement could be understood as improperly stating that mere knowledge of 

the presence of drugs establishes possession, defense counsel could have 

determined that it was not important to object because his strategy did not 

depend on arguing that Inzunza did not jointly possess the drugs with Flores. 

Instead of disputing possession, defense counsel argued that regardless of 

informed the jury that knowledge alone does not equate to possession, as 

control is necessary for possession: “To prove that the defendant is guilty of 

this crime, the People must prove that: [¶] 1. The defendant possessed a 

controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The 

defendant knew of the substance’s nature or character as a controlled

substance; [¶] 4. When the defendant possessed the controlled substance, she 

intended to sell it or that someone else sell it; [¶] 5. The controlled substance 

was [methamphetamine] [or] heroin; [¶] AND [¶] 6. The controlled substance 

was in a usable amount. . . . [¶] Two or more people may possess something 

at the same time. [¶] A person does not have to actually hold or touch 

something to possess it. It is enough if the person has control over it, either 

personally or through another person.” 
11

whether Inzunza and Flores jointly possessed the drugs, Inzunza was not 

guilty of possession for the purpose of sale because her personal intent was 

only to use some of the drugs, while Flores alone had the intent to sell them. 

For example, defense counsel explained, “When two people possess the same 

substance, the same bag, which they can do, right, two people can have

possession, ownership, control of the same item, it’s absolutely possible that 

one of them intends to do one thing, use, and one of them intends to do 

another thing, sell. And the person who intends to use doesn’t really care 

what the other person does with their half, right? Ms. Inzunza wanted to get 

high.” Defense counsel urged the jury to convict Inzunza in counts 1, 2, 4 and 

6 of the lesser included offense of simple possession, rather than finding that 

she possessed the drugs for the purpose of sale. In light of the fact that 

defense counsel’s focus was on intent to sell rather than on possession, 

defense counsel may have made the reasonable tactical decision that it would 

be better to forego an objection regarding the prosecutor’s discussion of the 

element of possession rather than to risk antagonizing the jury by 

interrupting the prosecutor’s argument to object.

Moreover, for two reasons, Inzunza has failed to establish that defense 

counsel’s failure to object was prejudicial. First, because defense counsel did 

not specifically dispute that Inzunza jointly possessed the drugs with Flores, 

there is no reasonable probability that Inzunza would have received a more 

favorable result at trial if defense counsel had objected to the prosecutor’s 

suggestion that mere knowledge is sufficient to establish possession. Second, 

to the extent that the prosecutor may have misled the jury about the element 

of possession, any confusion was likely cured by the trial court’s response to a 

question from the jury during deliberations. Specifically, the jury asked, “If 

drugs are found in a room occupied by two people regardless of where they 
12

are found, are both in possession? Jury is looking for indepth [sic] definition 

of possession.” The trial court responded: “Please see jury instruction 

number 2302 which provides: [¶] A person does not have to actually hold or 

touch something to possess it. It is enough if the person has control over it, 

either personally or through another person.” Because the jury was 

specifically informed in answer to its question that a person must have 

control over something to possess it, it is not reasonably likely that the jury 

based its verdict on anything the prosecutor said during closing argument 

suggesting that knowledge alone was sufficient to establish possession. 

C. The Prosecutor’s Statements Relating to Fayer’s Expert Testimony

The next statement that Inzunza identifies as prosecutorial error was 

made during the prosecutor’s rebuttal when explaining why the jury should 

reject defense counsel’s reliance on Fayer’s expert testimony to show that 

Inzunza may have possessed the drugs merely to use them. The prosecutor 

made the following statement in attempting to question Fayer’s credibility:

“But then we have the defense witness. . . . Even the defense 

called him in here to distract you, to mislead you. I could have 

asked that man, perfect scenario, right, like, he basically said 

unless it’s a hand to hand, he would never assume it’s sales. 

And that’s because that’s why they called him here, right, to 

mislead us. [¶] . . . [¶] He just wants to come up here and say 

things because he has a bias. He’s obviously in favor of probably 

legalizing drugs, right? He’s in favor of more different avenues. 

He doesn’t really like the criminal prosecution. I mean I didn’t 

see him have a hard time when [defense counsel] was talking, 

but I had to yell the 20 minutes I was examining him, and it’s 

because he has that bias.”4

4 The prosecutor’s statement that she was required to yell during her 

examination of Fayer refers to the fact that, as Fayer disclosed during his 

testimony, he has compromised hearing, requiring him to ask counsel to 

repeat certain questions. 
13

Inzunza contends that this argument constituted prosecutorial error in 

two ways: (1) it improperly disparaged the integrity of defense counsel by 

suggesting he called a witness for the purpose of misleading the jury; and (2) 

it misstated the facts by (a) inaccurately describing Fayer as having testified 

that “unless it’s a hand to hand, he would never assume it’s sales” and (b) by 

stating that Fayer is “obviously in favor of probably legalizing drugs.”

The argument fails on direct appeal because Inzunza has not 

established that defense counsel could have had no rational tactical purpose 

for failing to make an objection to the prosecutor’s statements about Fayer. 

Defense counsel may have determined that the prosecutor’s attempts to 

discredit Fayer were not persuasive and that an objection would simply make 

the jury wonder whether there might be some significance to the prosecutor’s 

otherwise unpersuasive argument. (Cf. People v. Williams (1997) 16 Cal.4th 

153, 215 [trial counsel may have decided not to object to certain testimony 

“because an objection would have highlighted the testimony and made it 

seem more significant”]; People v. Huggins (2006) 38 Cal.4th 175, 206

[“counsel could have preferred not to draw the jurors’ attention to particular 

comments by the prosecutor by objecting to them”].) In light of that risk, 

defense counsel could reasonably have concluded that it was best to rely on 

the jury’s ability to assess for itself whether it was persuaded by the 

prosecutor’s arguments that defense counsel was trying to mislead and 

distract the jury by calling Fayer and that Fayer was a biased witness.

Moreover, defense counsel also reasonably could have concluded that 

the prosecutor’s statements did not step over the line into prosecutorial error 

and thus did not warrant an objection that risked being overruled by the trial 

court. With respect to the contention that the prosecutor improperly 

disparaged defense counsel’s integrity, “[a]n argument which does no more 
14

than point out that the defense is attempting to confuse the issues and urges 

the jury to focus on what the prosecution believes is the relevant evidence is 

not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47; see 

also People v. Seaton (2001) 26 Cal.4th 598, 663 [the prosecutor’s argument 

that the defense case was “ ‘ludicrous,’ ‘contrived,’ ‘concocted,’ and ‘bogus’ ” 

did not impugn counsel’s integrity but rather commented on the 

evidence]; People v. Medina (1995) 11 Cal.4th 694, 759 [the prosecutor’s 

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

little, try to draw some speculation, try to get you to buy something’ ” did not 

amount to an attack on counsel’s integrity].) In addition, “[a]rguments by the 

prosecutor that otherwise might be deemed improper do not constitute 

misconduct if they fall within the proper limits of rebuttal to the arguments 

of defense counsel.” (People v. Cunningham (2001) 25 Cal.4th 926, 1026.)

Based on these principles, defense counsel may have concluded that the 

prosecutor properly stated that defense counsel called Fayer to “distract” and 

“mislead” because the prosecutor was commenting on the value of the 

evidence defense counsel relied upon during his closing argument.

Next, with respect to the prosecutor’s characterization of Fayer’s 

testimony, “harsh and colorful attacks on the credibility of opposing witnesses

are permissible. [Citations.] Thus, counsel is free to remind the jurors that a 

paid witness may accordingly be biased and is also allowed to argue, from the 

evidence, that a witness’s testimony is unbelievable, unsound, or even a 

patent ‘lie.’ ” (People v. Arias (1996) 13 Cal.4th 92, 162.) “ ‘The prosecutor is 

permitted to urge, in colorful terms, that defense witnesses are not entitled to 

credence . . . .’ ” (Boyette, supra, 29 Cal.4th at p. 433.) Defense counsel 

reasonably could have concluded that there was no basis to object because the 

prosecutor’s comments about Fayer would be viewed by the trial court as a 
15

permissible attempt to disparage the credibility of an opposing witness by 

raising an inference that he was biased toward the defense.5 

In sum, Inzunza has not met her burden to establish on direct appeal 

that defense counsel was ineffective for failing to object to the prosecutor’s 

statements about Fayer.

D. The Prosecutor’s Statements About the People’s Burden of Proof

The final passage that Inzunza assigns as error was also delivered 

during the prosecutor’s rebuttal argument. Specifically, the prosecutor stated 

the following:

“Now, the defense talked a lot about Tylenol and Tylenol

recall and they keep using the word ‘possible,’ right? My job isn’t 

beyond a possible doubt. My job is beyond a reasonable doubt 

where we ask ourselves what is reasonable based on the

evidence. It’s not beyond all doubt. It’s not beyond possible 

doubt. It’s beyond a reasonable doubt. 

“But we’re asking ourselves what is the truth? Because 

trials are not [a] search for doubt. They’re [a] search for the 

truth.

5 Moreover, although Inzunza contends that the prosecutor misstated the 

facts by stating that Fayer testified that “unless it’s a hand to hand, he would 

never assume it’s sales,” defense counsel may have concluded that the 

statement was not objectionable because the prosecutor was accurately 

referring to the following colloquy between defense counsel and Fayer: 

“Q. From your training and experience, are you able to 

determine whether or not somebody possesses a drug like 

methamphetamine or heroin for the purpose of sale or for 

personal use?

“A. Well, no one knows for sure [unless] we see them doing the 

selling part. If they have possession, we know they’re in 

possession. So those are obvious in their face, prima facia. It’s 

clearly that’s the situation. Beyond that, we’re looking for—I 

would—like I am right here, looking at inferences.”
16

“And when we look at all the evidence in this case, when we 

look at the fact that Ms. Inzunza was in that hotel room with Mr. 

Flores, her boyfriend, there was drugs in that room, in her 

backpack, in that fridge, she had the baggies in two of her bags, 

they had scales. When we ask ourselves what is reasonable just 

in that National City case alone, they are both drug dealers.

“And when we move forward 10 days later into the

Coronado incident and we ask ourselves, what is reasonable, even 

if we don’t have that scale, even if we don’t have that $369, the 

fact that she had brand-new baggies right underneath her late at 

night, over a hundred grams of dope, and he has a knife in the 

back, they are drug dealers. That’s the reasonable conclusion 

from the evidence.”6

Inzunza contends that this argument misstated the People’s burden of 

proof because it left the jury with the impression that the prosecution’s 

burden would be met if it “proved that its interpretation of the evidence was 

merely reasonable” (italics added), instead of stating that the jury must be 

convinced beyond a reasonable doubt of Inzunza’s guilt. Inzunza’s argument

relies on the principle that “it is error for the prosecutor to suggest that a 

‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” 

(Centeno, supra, 60 Cal.4th at p. 672, italics added & omitted.) 

6 The reference to “Tylenol and Tylenol recall” was based on the portion 

of defense counsel’s closing argument that reminded the jury of a line of 

questioning pursued during jury voir dire about possibly tainted Tylenol. 

Defense counsel argued, “But here, we’re not talking about putting the

Tylenol on your shelf. We’re talking about putting it on Ms. Inzunza’s shelf. 

And the law says you can’t go on probabilities even if they’re small. You have 

to have evidence to rule out reasonable doubts. Actual evidence. Not, hey, 

let me speculate in the other direction, what the prosecution has been doing. 

But actual evidence to say, look, we can tell from these things that her intent 

was something other than to get high. And that hasn’t been presented before 

you. It hasn’t.” 
17

We reject Inzunza’s argument because we do not perceive the 

prosecutor’s statement as improperly describing the People’s burden of proof. 

In the first paragraph of the prosecutor’s statement, she accurately explained 

the People’s burden of proof as being proof beyond a reasonable doubt.7 The 

remaining paragraphs of the prosecutor’s statement plainly constitute her 

explanation of how the totality of the evidence should lead the jury to find 

that Inzunza possessed the drugs with the intent to sell them. Specifically, 

as the prosecutor pointed out, defense counsel stated in his closing argument 

that the People had not met their burden of proof beyond a reasonable doubt 

because the evidence supported the “possible” conclusion that Inzunza 

intended to use the drugs, not sell them.8 The prosecutor responded by 

7 Inzunza contends that the first paragraph contained an error when the 

prosecutor said, “My job isn’t beyond a possible doubt. My job is beyond a 

reasonable doubt where we ask ourselves what is reasonable based on the 

evidence. It’s not beyond all doubt. It’s not beyond possible doubt. It’s 

beyond a reasonable doubt.” (Italics added.) According to Inzunza, the 

italicized phrase improperly communicated that the burden of proof beyond a 

reasonable doubt could be met by merely showing “what is reasonable based 

on the evidence.” We reject the argument because the full context of the 

prosecutor’s statement does not support Inzunza’s reading. When the entire 

portion quoted above is considered, it is clear that in stating “we ask ourselves 

what is reasonable based on the evidence,” the prosecutor was reminding the 

jury it must look to the actual evidence presented at trial when making its 

reasonable doubt assessment. The statement cannot reasonably be read as 

stating that a mere reasonable account consistent with guilt is sufficient to 

satisfy the People’s burden to prove guilt beyond a reasonable doubt. 

Inzunza also contends the prosecutor misstated the burden of proof by 

telling the jury that “trials are not [a] search for doubt. They’re [a] search for 

the truth.” We find no erroneous description of the prosecution’s burden of 

proof in that statement.

8 For example, defense counsel argued, “When two people possess the 

same substance, the same bag, which they can do, right, two people can have 
18

arguing that “the reasonable conclusion” was that Inzunza intended to sell 

the drugs. (Italics added.) She did not argue that it was merely “a 

reasonable conclusion,” but rather that it was “the reasonable conclusion.”

(Italics added.) The prosecutor therefore did not leave the jury with the 

impression that the People could satisfy its burden merely by establishing 

that a scenario consistent with guilt was “a ‘reasonable’ account of the 

evidence.” (Centeno, supra, 60 Cal.4th at p. 672, italics added.) 

Inzunza relies on Centeno, in which our Supreme Court disapproved of 

the prosecutor’s statements that included this passage: “ ‘What you are 

looking at when you are looking at reasonable doubt is you are looking at a 

world of possibilities. There is the impossible, which you must reject, the 

impossible [sic] but unreasonable, which you must also reject, and the 

reasonable possibilities, and your decision has to be in the middle. It has to 

be based on reason. It has to be a reasonable account.’ ” (Centeno, supra, 60 

Cal.4th at pp. 665-666, italics added.) Our Supreme Court acknowledged

that its previous case law “approved the prosecutor’s argument that the jury 

must ‘ “decide what is reasonable to believe versus unreasonable to believe”

and to “accept the reasonable and reject the unreasonable” ’ ” because such a 

statement does not lessen the beyond a reasonable doubt burden of proof. 

(Id. at p. 672.) However, the prosecutor in Centeno erred because she “did not 

simply urge the jury to ‘ “accept the reasonable and reject the unreasonable” ’ 

in evaluating the evidence before it. [Citation.] Rather, she confounded the 

concept of rejecting unreasonable inferences, with the standard of proof 

possession, ownership, control of the same item, it’s absolutely possible that 

one of them intends to do one thing, use, and one of them intends to do 

another thing, sell. . . . Ms. Inzunza wanted to get high.” (Italics added.)

Defense counsel also argued that the People were merely “speculat[ing]” that 

Inzunza’s “intent was something other than to get high.” 
19

beyond a reasonable doubt. She repeatedly suggested that the jury could find 

defendant guilty based on a ‘reasonable’ account of the evidence. These 

remarks clearly diluted the People’s burden.” (Id. at p. 673.) The 

prosecutor’s statements here were not like the statements disapproved in 

Centeno. Nothing in the paragraphs we have quoted above communicated to 

the jury that it was permitted to find Inzunza guilty based merely on a 

reasonable account of the evidence. Rather, as is permitted, the prosecutor 

was arguing, based on the evidence, that “the jury must ‘ “decide what is 

reasonable to believe versus unreasonable to believe” and to “accept the 

reasonable and reject the unreasonable.” ’ ” (Id. at p. 672.) 

Accordingly, “[b]ecause the prosecutor’s arguments discussed above 

were not improper, there was no reason for a defense objection. Therefore, 

the failure to object did not result in a violation of defendant’s constitutional 

right to the effective assistance of counsel.” (Lopez, supra, 42 Cal.4th at 

p. 968.)
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DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.