Filed 4/24/13 P. v. Kennedy CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.
CRYSTAL KENNEDY,
Defendant and Appellant. B236815
(Los Angeles County Super. Ct. No. BA369059)

In re CRYSTAL KENNEDY,
on Habeas Corpus. B243878

APPEAL from a judgment of the Superi or Court of Los Angeles County, John Fisher, Judge. The judgment is modi fied and, as modified, affirmed. PETITION for writ of habeas corpus. Denied. Alex Coolman, under appointment by the Court of Appeal, for Defendant, Appellant, and Petitioner. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steve E. Mercer, Marc A. Kohm
and James William Bilderback II, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 INTRODUCTION A jury found defendant and appellant Crystal Kennedy guilty of aggravated mayhem. She filed an appeal and a petition for writ of habeas corpus. 1 In her appeal, Kennedy contends that charact er evidence was improperly ad mitted; that the jury was misinstructed on the law of aggravated mayhem; and that the prosecutor committed misconduct by commenting on her Sixth Amendm ent right to counsel. In the habeas petition, she claims that her trial counsel was ineffective because he failed to call certain witnesses and failed to object to evidence and statements made by the trial court and the prosecutor. Although the judgment must be modified to correct a sentencing error, we reject all other contentions, deny the petition, and affirm the judgment as modified.
FACTUAL AND PROCED URAL BACKGROUND I. Factual background.
A. Prosecution case. On March 7, 2010, Leontinae Layton sp ent the night with Terry Williams at a house belonging to Kennedy’s brother, Aaron Owens. In the morning, Owens woke Layton and Williams. La yton began dressing, and Owens to ld her to hurry. Layton got her bag and shoes, but Owens and Williams continue d to urge her to go. Owens led Layton out the back door, and then Owens went back inside, leaving Layton alone. While Layton was putting on her shoes outside, Kennedy, who seemed “antsy or irritated” or “a little aggravated” came out through the back door of the house and demanded to know what Layton was doing ther e and who she was. Having never seen Kennedy before, Layton answered that it di dn’t matter who she was and demanded back, “ ‘Who are you’ ” and “ ‘What’s going on?’ ” Kennedy went back into the house. Confused and a little scared because she
“didn’t know what the situation could escalate to,” Layton stayed outside. Her hand behind her back, Ke nnedy returned and said, “ ‘I’m going to ask you this one more time. Who are you and what are you doi ng here?’ ” Layton told her it “ ‘doesn’t matter who I

1 We issued an order to show cause a nd ordered the appeal and the habeas petition to be heard together.3 am. I’m just here kicking it with the homi es.’ ” Kennedy said, “ ‘No you’re not, you lying bitch. You here to fuck my nigg er.’ ” Taking her hand from behind her back, Kennedy hit Layton’s head with a glass cup sh e’d been concealing. When the cup didn’t break, Kennedy broke it on a nearby pole. Sh e proceeded to fight Layton, who fought
back. 2 With the hand holding the glass, Kenne dy kept up a “constant action of hitting.” When Layton fell, Kennedy came from behind he r and hit the back of Layton’s head, cutting through the hood of Layton’s sweats hirt. Layton had no we apon and was never able to get the glass from Kennedy. As she struggled to get up, Layton felt blood dripping down her face and she screamed for help. Owens pu lled Kennedy off Layton. Layton went back inside the house, locked herself in the bathroom, and, disregarding Williams’s pleas not to call the police, called 911 and said that a “g irl” “broke a glass” and cut her. Layton sustained cuts to the back of her head, face, arm, back, and hand. Part of
the skin from her face had been peeled off. About two months after the incident, Ke nnedy was arrested on May 10, 2010. The arresting officer did not notice any injuri es or scars on Kennedy’s face or body. About six years before this incident, Kennedy was involved in an altercation on November 21, 2003 with her then boyfriend. Kennedy told the arresting officer, “ ‘I got mad because my man was talking w ith that bitch. So we started fighting and I bit him.’ ” The parties stipulated that Kennedy was conv icted of misdemeanor battery in connection
with this incident.
B. Defense case.
Williams testified that he and Layton were at a party wh ere they drank alcohol. They went to Owens’s house, and Layton br ought an overnight ba g that had a drinking glass in it. The next morni ng, Owens told Williams that so meone was at the door. Afraid it was his girlfriend, Kennedy, Williams told Layton to get dressed and go out the back door. When Layton left, she had her shoes on. Williams was putting his clothes on when

2 Layton was unsure whether she punched or kicked defendant first once she saw defendant “rush[ing]” her, glass cup in hand.4 Layton, saying something about “ ‘some girl,’ ” ran past him into the bathroom. He did not discourage her from calling th e police. Later that day, Williams saw Kennedy, whose forehead was injured. Kennedy said that she got into a fi ght with a girl, who cut her with some glass. He took photographs of Kennedy’ s injuries at defense counsel’s instruction, and, at trial, he identified them (Defense Exhibits A-E). 3 Kennedy testified that after leaving a cl ub she went to Owens’s house to use the
bathroom. When there was no answer at the front door, she went to the back. Seeing Layton, Kennedy asked who she was and what she was doing there. Layton told her not to worry “ ‘about who am I. Who the fuck are you?’ ” When Kennedy demanded to know what Layton was doing there, Layton told her she was with her “ ‘boyfriend Terry,’ ” to which Kennedy replied, “ ‘Your bo yfriend Terry? That’s my nigger, bitch.’ ” Layton then punched Kennedy’s face, a nd Kennedy punched he r back. Layton took a glass from her bag, broke it, and cu t Kennedy’s back. They “tussl[ed]” for the object, but Kennedy was never able to get th e glass from Layton. She never intended to break a glass cup and cut or deface Layton, bu t that happened while they were fighting. Hurt and scared, Kennedy left. She didn’t se e a doctor that day and she did not call the police. But she had Williams take a pictur e of her injuries and she called a defense attorney on the same day she fought with Layton.
About two weeks after the altercation with Layton, Kennedy saw Dr. David Kim on March 26, 2010 to assess he r injuries and to document th em. According to Dr. Kim, Kennedy had seven healing woun ds on her back, face and chest. Kennedy told Dr. Kim that she was injured during an altercation at a club. At trial, Dr. Kim did not recognize a cut on Kennedy’s back, depicted in Defense Ex hibit D. He said such a cut would have required sutures.

3 Defense Exhibit D shows an open wound, but the photograph is cropped so that the person’s head is not in the picture.5 II. Procedural background. On January 28, 2011, a jury found Kennedy guilty of c ount 1, aggravated mayhem (Pen. Code, § 205). 4 On October 12, 2011, after denying Kenne dy’s motion for new trial, the trial court sentenced Kennedy to life with the possibility of parole. The court imposed but stayed under section 654 a one-year term for the great bodily injury enhancement.
DISCUSSION I. The admission of Kennedy’s prior batte ry under Evidence Code section 1101, subdivision (b). Kennedy contends that evidence of he r 2003 battery convic tion was inadmissible
under Evidence Code sections 1101, subdivision (b), and 352, because it merely showed her propensity for violence. We disagree.
A. Additional facts. Over Kennedy’s objection, the prosecut or was allowed to introduce evidence of Kennedy’s 2003 prior battery conviction. Al though the defense argu ed that the evidence was unduly prejudicial and was improper prope nsity evidence, the trial court found that
the evidence would be relevant to rebut a clai m of self-defense. The court also agreed with the prosecutor that it was relevant to Kennedy’s intent and motive, under Evidence Code section 1101, subdivision (b). To a lleviate the possibility of prejudice, however, the trial court found that the prosecutor coul d introduce the evidence in rebuttal only if Kennedy first put on evid ence of self-defense. Los Angeles County Deputy Sheriff Pa ul Morales then testified that, on November 21, 2003, he responded to a possibl e assault. Kennedy told him she “ ‘got mad because my man was talking with that bitch. So we st arted fighting and I bit him.’ ” Kennedy, however, denied biting her boyfri end and getting mad at him because he was talking to another woman. She pled no contest to battery on her boyfriend.

4 All further undesignated statutor y references are to the Penal Code.6 With respect to this ev idence, the trial court inst ructed the jury: “ ‘The prosecution presented evidence that [Kennedy] committed another offense or certain
behavior on an earlier occasi on involving an allegation of battery on anot her person by biting. [¶] So you may consider this ev idence only if the prosecution has proved by a preponderance of the evidence that [Kennedy], in fact, co mmitted this earlier uncharged act or offense. [¶] . . . [¶] If you decide that [Kennedy] committed the uncharged act or offense you may, but are not required to, cons ider that evidence for the limited purpose of deciding whether or not––and then we give you the following scenar io: That [Kennedy]
acted with the intent to comm it the crimes alleged in this case, that [Kennedy] had a
motive to commit the o ffense alleged in this case or th at [Kennedy] reasonably and in good faith believed that she could use self-defen se in this case. [¶] In evaluating this evidence consider the similarity or lack of similarity between the uncharged earlier act or offense and the charged offense. [¶] Do no t consider this eviden ce for any other purpose except for the limited purposes of which I just stated, those three categories, intent,
motive and the issue of reasonableness of self-d efense. [¶] Do not conclude from this evidence that [Kennedy] had a bad character or is disposed to commit crime. [¶] If you conclude at that time [Kennedy] committed th e uncharged offense or act, that earlier situation, that conclusion is only one fact or to consider along with all the other
evidence.’ ” During closing argument, the prosecutor commented on the prior incident: “[T]hey’re extremely similar circumstances to the incident in November of 2003 which helps to inform what [Kennedy ’s] motive and intent was. An d it helps to inform the fact that this wasn’t a self-defense case, that [Ken nedy] attacked. Why? [¶] In November of
2003 when she went to her th en boyfriend’s home and saw hi m speaking, just speaking to a strange woman, a woman she didn’t recogniz e, she attacked. Th at was enough to trigger her. [¶] This is clearly someone wh o in that situation was not acting in selfdefense. And under the same circumstances he re faced with a situation where her man is with a strange woman and even worse, in he r own brother’s house, what does she do? She attacked again. Why? Jealousy.” La ter, the prosecutor adde d, “[Kennedy], on the7 other hand, has the same motive she did in 2003. Jealousy. She has the same exact
motive.” In rebuttal argument, the prosecutor said : “I agree with counsel you do not convict a person because they have been co nvicted before. The purpose of presenting [Kennedy’s] 2003 conviction and the facts underl ying it have nothing to do with getting you to convict her solely based on that. [¶] It goes to inform what her intent, what her motive was and whether or not this is likely to be self-defense. That’s what that evidence goes to. And specifically when faced with si milar circumstances[,] boyfriend, strange woman, [Kennedy] attacked. [¶] And here y ou have the exact same situation. And one thing that the defense counsel said is that that was eight years ago. Well, all that means is that nothing much has changed.”
B. The trial court did not abuse its disc retion by admitting the other crimes
evidence. Character evidence is genera lly inadmissible to prove a person acted in conformity with it on a specific occasion. (Evid. Code, § 1101, subd. (a).) It therefore is
inadmissible to establish criminal propensity. ( People v. Demetrulias (2006) 39 Cal.4th 1, 14.) It may be admissible, however, where re levant to prove a material fact at issue, for example, motive, opportunity , intent, preparation, plan, kn owledge or identity. (Evid. Code, § 1101, subd. (b).) “The admissibility of other crimes evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendenc y of the uncharged crimes to prove those facts, and (3) the existence of a ny rule or policy requiring exclusion of the evidence.” ( People v. Carpenter (1997) 15 Cal.4th 312, 378- 379, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106.) As the court explained in People v. Ewoldt (1994) 7 Cal.4th 380, at page 402: “The least degree of similarity (between the uncharged act and the charged offense) is required . . . to prove intent. [Citation.] ‘[T]he recurrence of a similar re sult . . . tends (increasingly with each instance) to negative accident or in advertence or self-defense or good faith or other innocent mental state, a nd tends to establish (provisi onally, at least, though not certainly) the presence of the normal, i.e ., criminal, intent a ccompanying such an8 act . . . .’ [Citation.] . . . [T]o be admissible to prove in tent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ ”
Even if evidence of an uncharged crime is admissib le under Evidence Code section 1101, subdivision (b ), the evidence may be excl uded under Evidence Code section 352 if its probative value is subs tantially outweighed by the probability its admission would unfairly prejudi ce the defendant, mislead the jury, or confuse the issues. ( People v. Abilez (2007) 41 Cal.4th 472, 500; People v. Balcom (1994) 7 Cal.4th 414, 426-427.) A trial court’s ruling to admit ev idence of an uncharged crime under Evidence Code sections 1101, subdivision (b), and 352, is reviewed on appeal under the abuse-ofdiscretion standard. ( People v. Memro (1995) 11 Cal.4th 786, 864, overruled on other grounds in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.)
The trial court here found that the November 2003 incident was admissible because Kennedy claimed self-defense. Self -defense required Kennedy to actually and reasonably believe in the need to defend. ( People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) Kennedy clearly placed at issue he r subjective intent in fighting and cutting Layton by testifying that Layton was the aggressor and threw the first punch. Kennedy’s prior battery against a boyfriend who was talking to another woman suggests that jealousy, and not a need for se lf-defense, motivated her atta ck against her boyfriend in 2003 and her current attack against Layton, who had just spent the night with Kennedy’s boyfriend. Evidence of the pr ior battery therefore was admi ssible to establish Kennedy’s motive and intent, in that it disproved her self-defense claim. (See, e.g., People v. Demetrulias, supra, 39 Cal.4th at pp. 14-15 [prior a ssault and robbery tended to show
that the defendant stabbed current victim to take his money rather than to defend himself]; People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v. Simon (1986) 184 Cal.App.3d 125, 130 [evidence that a prior crime was motivated by jealousy could make9 it admissible to show that a current crime was similarly motiv ated by jealousy rather than by self-defense]. 5 ) Kennedy argues, however, that the dissi milarity between the prior and current
crimes rendered the evidence inadmissible. Th e prior and current cr imes were dissimilar in that Kennedy committed the prior act agai nst her then boyfriend and she committed the current act against “the other woman.” But “the probativeness of other-crimes evidence on the issue of motive does not necessarily de pend on similarities between the charged and uncharged crimes, so long as the offenses have a direct logical nexus.” ( People v. Demetrulias, supra, 39 Cal.4th at p. 15.) The crimes ne ed only be suffici ently similar to support an inference that defendant probably harbored the same inte nt in each instance. ( Ibid. ) In both instances, th ere was evidence that Kenn edy discovered a boyfriend cheating on her. These circumstances were su fficiently similar to support the inference that jealousy motivated Kennedy both times. We also reject the argument that the trial court abused its discretion under Evidence Code section 352. The prior 2003 ba ttery was not particularly inflammatory in comparison to the current cr ime. In 2003, th e evidence was that Kennedy bit her boyfriend, as compared with the disfiguremen t of Layton in the current case. The trial court, cognizant of the possibility of prejudice and to minimize it, specifically ruled that
the other crimes evidence coul d not come in until Kennedy intr oduced evidence of selfdefense. The court gave a very specific limi ting instruction telling th e jury that the prior crime could only be considered on the issues of Kennedy’s “intent, motive and the issue
of reasonableness of self-defense .” The jury was not to “conclu de from this evidence that the defendant had a bad character or is dispos ed to commit crime.” We presume that the jury understood and followe d this instruction. ( People v. Gray (2005) 37 Cal.4th 168, 231.)

5 Simon reversed the defendant’s conviction be cause the other crimes evidence had been admitted without first establishing a preliminary fact; namely, whether there was sufficient evidence jealousy mo tivated the prior act. ( People v. Simon, supra, 184 Cal.App.3d at pp. 130-132.)10 Under these circumstances, the trial cour t did not abuse its discretion in admitting the prior 2003 battery. And, to the extent Kennedy argues that admission of the evidence violated her right to due proce ss, a state court’s application of ordinary rules of evidence, including the rule stated in Evidence Code section 352, gene rally does not infringe upon this right. ( People v. Cornwell (2005) 37 Cal.4th 50, 82, disapproved on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
II. The admission of ot her character evidence. Kennedy next argues that the trial court let in additional, inadmissible character and propensity evidence when it overruled her trial counse l’s objection to statements Layton made that Williams should have know n Kennedy was “crazy” and could “flip.” We conclude that Kennedy was not prejudic ed by the admission of these statements. During Layton’s 911 call, she told Willia ms he should have known this would happen. When the pros ecutor asked Layton why she said that, Layton explained: “From my understanding at that point she was his ex-girlfriend because, I mean, no one would just go crazy like this if what she was sayi ng––if she was saying or she had to be his girlfriend or something. [¶] And from my unde rstanding he told me that he didn’t have a current girlfriend. So if this is your ex-g irlfriend you know how she is. You know she’s crazy. You know that she can flip at any second.” Defense counsel objected that the evidence lacked foundation, bu t the court overruled the objec tion and said, “It’s just her
statement. That’s not necessar ily offered for the truth. It ’s just a conversation they’re having.” Layton added, “You would know. If you’ve been in a relationship with someone you know how they are.” Defens e counsel stated, “[o]bjection,” and it was again overruled. The prosecutor then referenced during cl osing argument Layton’s remarks: “And
remember what the victim said? At one point in the 911 call the victim, who at that point is speaking to [Williams], says to him, ‘Y ou should have know n this was going to happen. You should have kn own this was going to happen .’ [¶] And when she was asked, ‘Why did you say that to him.’ What did she say? She said, ‘I said that because look. If you have been with this woman, if she’s really your ex-girlfriend you should11 have known how she would react if she foun d you with another woman. You should
have known.’ ” On appeal, Kennedy argues that the fou ndation objection was well-taken, because Layton’s statements “about [defendant’s] char acter were pure speculation, and had no probative value” and had the effect of sugg esting that Kennedy had a propensity for
violence. She also contends its admissi on violated her right to due process. Regardless of its admissibility, Kennedy was not prejudiced by admission of Layton’s statement, whether we review the issue under People v. Watson (1956) 46 Cal.2d 818, 836 [whether it is reasonably probable that a result more favorable to the appellant would result in the absence of the error], or under Chapman v. California (1967) 386 U.S. 18, 24 [wheth er the error was harmless beyond a reasonable doubt]. Layton’s statement to Williams that he should have know n this could happen, that Kennedy was “crazy” and could “flip at any second” had very little probative value. Beyond that one encounter, La yton did not know Kennedy, and therefore could not speak to Kennedy’s propensity for violence. It therefore did not expa nd on any theme that Kennedy had a history of jealous rage, becaus e Layton had no such knowledge of that history.
III. CALCRIM No. 800. Kennedy makes two contentions concer ning CALCRIM No. 800 , the instruction on aggravated mayhem: the instruction misstat ed the elements of the crime and lowered the People’s burden of proof and the trial court misstated the elements of the crime during voir dire.
A. CALCRIM No. 800 does not misstate the law on aggravated mayhem.
When a criminal defendant contends that an ambiguous or potentially misleading
instruction violated his or her federal constitutional right to a trial by jury, we must
review the instructions as a whole and de termine “ ‘whether there is a reasonable likelihood that the jury has a pplied the challenged instruction in a way’ that violates the Constitution. [Citation.]” ( Estelle v. McGuire (1991) 502 U.S. 62, 72; see also People v. Smithey (1999) 20 Cal.4th 936, 963; People v. Frye (1998) 18 Cal.4th 894, 957,12 disapproved on another point in People v. Doolin, supra, 45 Cal.4th at p. 421.) If an instruction omits or improperly describes an element of the offense, preventing the jury from making a necessary factual finding, it is constitutionally defective and subject to the Chapman standard of review. ( People v. Williams (2001) 26 Cal.4th 779, 790.) Without objection from either party, the tr ial court here instru cted the jury on aggravated mayhem: “ ‘To pr ove the defendant is guilty of this crime the prosecution must prove that, one, the defendant unlawfu lly and maliciously disfigured someone permanently. [¶] Two, when the defendant acted[,] sh e intended to permanently disfigure the other person. [¶] And, three, under the circumstances the defendant’s act showed extreme indifference to the physica l or psychological wellbeing of the other

person . [¶] Someone acts malicious ly when he or she intentionally does a wrongful act
or when he or she acts with th e unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures.’ ” 6 (Italics added.) The problem with this instruction, defendant argues, is it directed the jury to
consider whether her act showed indifference to the we ll-being of another person as opposed to whether the circumstances in which defendant acted demonstrated such indifference. Thus, the trial court should have, as defense counsel requested below, instructed with this: “Agg ravated mayhem requires the spec ific intent to cause the maiming injury. [¶] Evidence that shows no more than an indiscriminate attack is insufficient to prove the required specific inte nt. [¶] Furthermore, specific intent to

6 The jury was also inst ructed on simple mayhem (§ 203). “ ‘To prove the defendant is guilty of mayhem the prosecuti on must prove that th e defendant caused serious bodily injury when she unlawfully and malicious ly permanently disfigured someone. [¶] Someone acts ma liciously when he or she in tentionally does a wrongful act or when he or she acts with the unlawful in tent to annoy or injure someone else. [¶] . . . [A] serious bodily injury means a serious impairment of physical condition. Such an injury may include, but is not limited to, protracted loss or impairment of function or any bodily member or organ or a wound re quiring extensive suturing and serious disfigurement. [¶] A disfiguring injury ma y be permanent even if it can be repaired by medical procedures.’ ”13 maim may not be inferred sole ly from evidence that the injury inflicted actually constitutes mayhem. [¶] Instead, there mu st be other facts and circumstances which support an inference of intent to maim rather than to attack indiscriminately.” 7 (See also People v. Park (2003) 112 Cal.App.4th 61, 64; CALCRIM No. 800 Use Notes.) Under section 205, “[a] pe rson is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well- being of another person, intentionally causes pe rmanent disability or disfigurement of another huma n being or deprives a human being of a limb, organ, or member of his or her body.” “Aggrava ted mayhem requires proof the defendant specifically intended to maim—to cause a permanent disability or disfigurement. [Citation.] A jury may not find specific inte nt ‘solely from eviden ce that the injury inflicted actually constitutes mayhem; in stead, there must be other facts and circumstances which support an inference of intent to maim rath er than to attack indiscriminately.’ [Citation.] ‘A jury may infer a defendant’s spec ific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.’ [Citation.] ‘[E]vidence of a “controlled and directed” attack or an attack of “focused or limited scope” may pr ovide substantial evid ence of’ a specific intent to maim. [Citations.]” ( People v. Szadziewicz (2008) 161 Cal.App.4th 823, 831;
see also People v. Ferrell (1990) 218 Cal.App.3d 828, 834.) We do not agree that CALCRIM No. 800 invited the jury to focus on Kennedy’s
“act” to show extreme indifference to Layton’s well-being as opposed to the “circumstances” attending the act. If the instruction could be in terpreted to direct the jury to consider merely whether her act showed ex treme indifference, then the phrase “under
the circumstances” would be superfluous. But the qualifying phrase, “Under the circumstances,” clearly tells the jury to cons ider the surrounding cont ext in which the act occurred. Such context would be, for ex ample, the manner in which Kennedy came across Layton in the backyard, the exchange of words between Layton and Kennedy

7 The trial court refused to give this requested instruction without comment.14 before the physical attack be gan, Kennedy’s return to th e house to get a glass, and Kennedy deliberately breaking the glass on a pole. Thus, the instruction as given was corre ct. The additional language requested by the defense, although also legally correct, wa s duplicative, and therefore the trial court did not err by refusing to give it. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99 [a trial court need not give a pin point instruction if merely duplicates other instructions].)
B. The trial court’s statements during voir di re did not invite th e jury to ignore applicable law. In a related argument concerning th e law on aggravated mayhem, Kennedy
contends that the trial court lowered the Pe ople’s burden of proof by misstating, during voir dire, the law on aggravated mayhem. We disagree. At the outset of voir dire, the trial c ourt told the prospective jurors: “The defendant is charged with what we call mayhem or in lay term s an assault using, like, a piece of glass or a broken bottle on anothe r female where there’s an allegation that injuries occurred to the face, like, cuts and s titches and that kind of thing. [¶] So the defendant has pled not guilty to assaulting, for lack of a better word, this other person.”
Then the trial court told the jury that the “prosecution alwa ys goes first[,] so [the prosecutor] is going to call her witnesses. Sh e has that burden of proof to go forward. She’s saying that the defendant did this, yo u know, attack on another person with the glass, the broken glass, and they got to prove it. So they go first.” Later, the trial court said, “[Defendant is] charged with what we call mayhem. That’s the technical name for it. The allegation is that she with, like, a broken glass bottle or some object like that
attacked another female and slashed––made so me slashes in that person’s body or face area causing injury.” Kennedy argues that these comments en couraged the prosp ective jurors to disregard the elements of aggravated mayhem and lowered the burden of proof by stating that Kennedy was on trial me rely for “mayhem” rather than aggravated mayhem; by likening the charge to assault; and by omitti ng elements of the crime when describing15 aggravated mayhem. The commen ts did no such thing. Firs t, the comments were clearly
not intended to be a substitute for the formal instructions, wh ich we have either found to be legally correct or to which Kennedy asserts no challenge. ( People v. Avila (2009) 46 Cal.4th 680, 716 [comments trial court made about mitigating eviden ce were not intended
to be a substitute for full instructions at th e end of the trial].) The trial court clearly conveyed that it was merely giving a shortha nd overview of the case. Second, the court’s abbreviated reference to the crime as “mayhe m” or “assault” rather than “aggravated mayhem” could hardly have induced the jury to disregard the specific intent element in the latter when the prospectiv e jurors, at that point in voir dire, had received no instructions on the elements of any crime a nd the trial court did not discuss the intent element. Third, the court was trying to give the jury a simple and abbreviated sense of what is aggravated mayhem—a crime many ou tside the criminal legal world are likely unfamiliar with—by saying it was, here, an a ttack with glass. By omitting the full and complete elements of the crim e, such as disfigurement, the trial court was in no way encouraging the jury to ignore them. (Cf. People v. Johnson (2004) 119 Cal.App.4th 976 [trial court’s repeated mi sstatements about the reasonable doubt standard, which misstatements the prosecutor echoed in clos ing arguments, required reversal of the judgment].) We therefore reject the notion that the trial court’s brief and innocuous comments violated Kennedy’s right to due process a nd rendered her trial f undamentally unfair. Because we reject her contenti ons concerning the effect of the court’s comments, we also reject her claim that her trial counsel provide d ineffective assistance of counsel by failing to object to them. 8 We have found no error, and ther efore Kennedy cannot have been prejudiced by any inaction on her trial counsel’s part. ( Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Holt (1997) 15 Cal.4th 619, 703.)

8 Defendant also raises this ineffective assistance of counsel claim in her habeas petition.16 IV. Prosecutorial misconduct. Kennedy contends that statements the prosecutor made during closing argument about her calling a defense attorney after th e incident were impermissible comments on her Sixth Amendment right to counsel, and th e comments violated her due process rights. We disagree.
A. Additional facts. During the defense case, defense counse l asked Williams, Kennedy’s boyfriend, why he took photographs of her injuries. Williams said he took the photographs at defense counsel’s instruction. Thereafter, defense counsel asked Kennedy if at some point she or Williams gave him the photogra phs, and Kennedy answ ered that she gave defense counsel the photographs “[r]ight after the incident occurred.” While crossexamining Kennedy, the prosecut or asked if, on the same day of the incident, she “didn’t call the police,” “didn’t go to the hospital,” a nd “didn’t go to a doctor,” but “you got a defense attorney[?]” During closing arguments, the prosec utor commented on Kennedy’s immediate consultation with an attorney af ter the altercation with Layton:

 “What does the person who is guilty look like and sound like? Looks like nothing. Sounds like nothing because she fled, because she didn’t turn herself in to the police and because th e only person that she called . . . was the defense attorney.” Defense co unsel interjected an objection (no grounds were stated), but it was overruled.

 “So common sense. What does a person who claims to be the victim, what does someone who’s just been attacked in the home of her own brother do if they’ve run away in pain and in fear for their life? They call the police. But she didn’t. [¶] She’s in pain from her injuries. So you go to the doctor or the hospital. But she didn’t. [¶] What did the defendant do? She called the defense attorney. Reasonably this doesn’t make any sense. If the defendant wants you to believe that sh e was––she was the victim, that she17 was attacked in her own brother’s house, that she was in pain and in fear for her life, then her reaction to that is entirely inconsistent.”

 The prosecutor asked the jury to reject as unreasonable “that a victim would run away, remain out on a warrant, call a defense attorney [that] same day, not go to the hospital, not call the police.”

 After arguing that the victim behave d consistently with the truth, the prosecutor contrasted the victim’s beha vior with Kennedy’s: “What did the
defendant do? She didn’t call 911. She called the defense attorney. She called the defense attorney. [¶] Why do you call a defense attorney after an attack if you’re the victim? W hy? Because you’re not a victim. You call a defense attorney because you know you’re in trouble, because you know you’re guilty.”

 Returning to this theme in her rebuttal argument, the prosecutor said: “The arguments that were presented to you on my closing about the fact that the defendant got a defense lawyer the day that this happened, about the fact that she only went to a doctor 19 days or 20 days later after speaking to her counsel, those have nothing to do with defens e counsel. He’s doing his job. [¶] And I have no idea what he told her or didn’t tell her to do, but I know
what she told us. She told us she admitted thatshe went and called the defense counsel after this happened. The victim called 911. The guilty person called the defense counsel. It’s logic. [¶] Why didn’t Ms. Layton call a defense attorney? Because she di dn’t need one. Because she’s the victim. Because she didn’t do anyt hing wrong. And none of that has anything to do with defense counsel.”

 “If you flee a location because you’re in pain and you th ink you’ve been attacked and you have no idea that th e police are looking for you or that you’re in any way a defe ndant why do you get a de fense attorney? [¶] Why do you take photographs at th e request of a defense attorney? [¶] . . . [¶] If you don’t ha ve any clue that you’re going to be on the defense18 you wouldn’t be building up a defense. It just doesn’t make any sense. And, again, it’s not about defense coun sel. It’s not about him. It’s certainly not about me. This case has not hing to do with either one of us.
It has to do with the defendant’s actions and the fact that in every step her actions scream consciousness of guilt.”
B. The prosecutor’s comm ents on Kennedy’s right to counsel. In all criminal prosecutions, the accused sh all enjoy the right to have the assistance
of counsel for his or her defense. (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15.) A prosecutor therefore may not comment on a defe ndant’s post-arrest in vocation of right to counsel without potentially violating the de fendant’s constitutional rights to due process and against self-incrimination. (See, e.g., People v. Schindler (1980) 114 Cal.App.3d 178, 185.) A prosecutor similarly may not suggest to the jury that a defendant’s prearrest retention of counsel is inconsistent with innocence without pote ntially violating the defendant’s due process guarantee of a fair trial under the Fourteenth Amendment. (See,

e.g., People v. Fabert (1982) 127 Cal.App.3d 604; United States ex rel. Macon v. Yeager (3d Cir. 1973) 476 F.2d 613 ( Macon ); State v. Angel T. (2009) 292 Conn. 262, 278, 281- 282 [973 A.2d 1207].) The prosecutor here repeatedly comment ed during closing argument on Kennedy’s pre-arrest retention of counse l, suggesting that she hired an attorney because she was guilty and that doing so was inconsistent with innocence but consistent with a “consciousness of guilt.” Comments much mild er than this have required convictions to
be reversed. In Macon , for example, there was evidence th at after the defendant shot the victim, he consulted his attorney. ( Macon , supra , 476 F.2d at p. 614.) The prosecutor, in his summation to the jury, asked whether this was an “act of innocence?” ( Ibid. ) Relying

on Griffin v. California (1965) 380 U.S. 609, which held that a prosecutor’s suggestion that the jury could infer guilt from the defendant’s failure to take the stand violated the defendant’s Fifth Amendment right against self-incrimination, Macon said: “For the purpose of the ‘penalty’ anal ysis, however, we perceive little , if any, valid distinction between the privilege against self-incriminati on and the right to counsel. It can be19 argued, with equal vigor and logi cal support, as to either the Griffin situation or the present case, that a prosecutor’s comment se eking to raise in the jurors’ minds an inference of guilt from the defendant’s cons titutionally protected conduct constitutes a ‘penalty’ on the free exercise of a constitutional right.” ( Macon, at p. 615.)
This division cited Macon with approval in People v. Schindler, supra, 114 Cal.App.3d 178. In Schindler , the defendant killed her husb and, who had killed his first
wife. To counter the defendant’s defense of diminished capacity, th e prosecutor elicited
evidence that the defendant hired as her defe nse attorney the man who had prosecuted her husband for the murder of his first wife. ( Id. at p. 183.) In closing arguments, the prosecutor argued that the defendant’s inten tional selection of de fense counsel negated her alleged “panic state” and showed her guilt. ( Id. at pp. 184-185.)
Schindler concluded that “defendant clearl y was impermissibly penalized for exercising her constitutional right to counse l by the prosecutor’s flagrantly improper argument that the time and circumstances surr ounding her selection of this particular defense counsel . . . impeached her testimo ny and showed she was guilty of murder.” ( People v. Schindler, supra, 114 Cal.App.3d at p. 189.) Because the only issue at trial was the defendant’s intent and mental capac ity at the time the cr ime was committed, and the inadmissible evidence and improper argument went directly to this issue, the error was prejudicial. ( Id. at p. 190; see also People v. Fabert, supra, 127 Cal.App.3d at p. 610 [“comments that penalize the defendant for the exercise of her right to counsel, and that also strike at the core of her defense, cann ot be considered harmless error”]; but see People v. Coffman and Marlow, supra, 34 Cal.4th at p. 66 [brief and mild reference to the defendant’s invocation of his right to counsel was harmless error]; People v. Huggins (2006) 38 Cal.4th 175, 199.) The prosecutor’s comments here equatin g Kennedy’s consultation with a defense counsel with guilt would clear ly constitute a “penalty” on Kennedy’s cons titutional right to counsel, but for one crucial distinction be tween this case and the authorities we have
cited: Kennedy first injected her hiring of defe nse counsel into the case. While examining Williams, defense co unsel asked why he took th e photographs of Kennedy:20 “Q. Okay. And was there––how is that you decided to take the photograph? [¶] Why did you take the photograph? “A. Why did I take the photograph? “Q. Yes. “A. Because it’s an injury. And I’m––I took the photogr aph and got in touch with

you. “Q. To do what? “A. Get in touch with you. “Q. Did you call me that day? “A. Yes, I did. “Q. Okay. And did I ask you to take the photograph? “A. Yes, you did.” Then, when examining Kennedy, defense coun sel asked her, “And at some point did you, you or Mr. Williams, provide me with the pictures?” Kennedy answered, “Right after the
incident occurred.”
In the absence of defense counsel’s questions, we might agree that the prosecutor’s comments on Kennedy’s right to counsel were fundamentally unfair. But where, as here, a defendant uses her invocati on of counsel to suggest her innocence or to bolster her credibility, it would be unfair to preclude the prosecutor from making the opposite argument. (See, e.g., State v. Santiago (2007) 100 Conn.App. 236 [917 A.2d 1051].) In Santiago , for example, defense counsel invited the jury to find that his client did the right thing when, after shooting the vic tim, he went to the police. The prosecutor responded by detailing exactly wh at the defendant did after shooting the victim, namely, he “ ‘ditched’ ” the gun, went home, shower ed, called his attorney, and went to the police, accompanied by his attorney. Santiago held that the prosecutor did not commit misconduct because it would be “fundamentally un fair to the state were we to permit the defendant’s attorney to comment on the evidence of his condu ct after the shooting and to suggest reasonable inferences to be drawn fro m that conduct, while precluding the state from doing the same in response.” ( Id. at p. 247 [917 A.2d at p. 1059].)21 Here, a reasonable interpretation of defense counsel’s line of questioning is he was trying to show that Kennedy took ph otographs of her injuries because he was constructing a defense, not she. In other wo rds, she didn’t take the photographs because she was guilty, she took them at her counsel’s instruction. Under the very specific circumstances here, Kennedy cannot argue that her invocation of counsel suggests her innocence and, at the same time, preclude th e prosecutor from suggesting the opposite. We therefore conclude that Kennedy’s cons titutional rights were not violated by the prosecutor’s comments about Kennedy ’s hiring of defense counsel. Because defense counsel’s purported fa ilure to object to the prosecutor’s comments is a subject in the habeas petition, we also address whether defense counsel forfeited any issue on appeal, thereby rendering ineffective assistance. To preserve a claim a prosecutor improperly commented on th e defendant’s exercise of a constitutional right, the defendant must object to the pr osecutor’s comments on this basis. (See People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Medina (1995) 11 Cal.4th 694, 756.) Defense counsel objected the first time the prosecutor mentioned during closing argument that defendant hired counsel. Th e “objection,” however, was unspecified and
the trial court overruled it. Although a defendant genera lly may not argue on appeal that evidence should
have been excluded fo r a reason not asserted at trial, a defendant may argue that the “asserted error in overruling th e trial objection had the legal consequence of violating due process.” ( People v. Partida (2005) 37 Cal.4th 428, 431.) To the extent the prosecutor’s comments had the potential le gal consequence of violati ng defendant’s due process rights, we may consider that constitutional cl aim as not forfeited. Therefore, based on defense counsel’s initial objection, we conclude he did not fail to object. We also reject defendant’s related contention, raised in th e habeas petition, that her trial counsel was ineffective for failing to renew the objection. Based on the trial court’s denial of the initial objection, defense counsel could have reasonably believed that further objections would be futile, only highlig hting further the prosecutor’s argument or be counterproductive. ( People v. Hill (1998) 17 Cal.4th 800, 820-821.)22 In any event, we have concluded that the prosecutor’s comments were not
misconduct and did not viol ate defendant’s due process rights. Therefore, they were not objectionable and defense counsel cannot be fa ulted for either failing to object on the proper ground or to rais e additional objections. ( Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Holt, supra, 15 Cal.4th at p. 703.) V. Sentencing error. Although the information alleged a great bodily injury enhancement under section 12022.7, subdivision (a), and personal use of a deadly w eapon under section 12022, subdivision (b)(1), the jury was neither instructed on those enhancements nor rendered a verdict on them. The trial court, however, imposed but stayed under section 654 a oneyear term for the great bodily injury enhancement. The Pe ople concede that the one-year
term must be stricken and the abstract of judgment corrected. VI. The petition for wr it of habeas corpus. In her petition for writ of habeas corpus, Kennedy claims that her imprisonment is unlawful because she was deprived of he r rights under the Sixth and Fourteenth
Amendments when her trial counsel failed to call two witness, Shanisha Robinson and Owens, failed to object to pr osecutorial misconduct concerning her right to counsel and concerning her prior conviction, and failed to object to the trial court’s comments during
voir dire. We have already rejected in the direct appeal Kennedy’s claims that the prosecutor committed misconduct by referring to her right to counsel and by failing to object to the trial court’s comments. We now consider, and reject, her remaining cl aims raised in the petition.
A. Law on ineffective assistance of counsel claims. “A meritorious claim of constitutionally in effective assistance must establish both: ‘(1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability th at, but for counsel’s unprofessional errors, a
determination more favorable to defendant would have resu lted. [Citations.] If the
defendant makes an insuffici ent showing on either one of these components, the23 ineffective assistance claim fails.’ ” ( People v. Holt
, supra , 15 Cal.4th at p. 703; see also People v. Lopez (2008) 42 Cal.4th 960, 966; Strickland v. Washington, supra , 466 U.S. at p. 687.) A reasonable probab ility is a probability sufficient to undermine confidence in the outcome. ( People v. Bolin (1998) 18 Cal.4t h 297, 333.) “ ‘ “Reviewing courts defer to couns el’s reasonable tactical decisions in examining a claim of ineffectiv e assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls with in the wide range of reasonable professional assistance.’ ” [Citations.]’ ” ( People v. Jones (2003) 29 Cal.4th 1229, 1254; see also People v. Lopez, supra , 42 Cal.4th at p. 966.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of
ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. ( People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; Jones , at p. 1254.) “Were it otherwise, appellate courts would be required to engage in the ‘ “perilous process” ’ of second-guessing counsel’s trial strategy.” ( People v. Frye (1998) 18 Cal.4th 894, 979, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
B. The failure to call Shanisha Robinson. In her declaration dated September 2, 2 012, Robinson states that she saw Kennedy on March 8, 2010, two days after the alterc ation with Layton. Kennedy had cuts on her face, shoulder and back, and the cuts to he r face and shoulder looked like they might require stitches. Kennedy told Robinson th at she got into a fight with a girl. Kennedy contends that Robinson’s test imony was particularly significant because it went to Kennedy’s intent, specifically, it te nded to show that she lacked the specific intent required of aggravated mayhem. Robinson’s testimony buttressed the defense theory either that Kennedy acted in self-defense or that this was a “spontaneous melee in
which both sides were cut rath er than an intentional act of disfigurement,” which might have led the jury to convi ct Kennedy of the lesser o ffense of simple mayhem.24 Although Kennedy’s trial counsel declined her request to explain why he did not call Robinson, there are several tactical reasons why he might have d ecided not to call her
as a witness at trial. 9 First, Williams gave essentia lly the same testimony, and trial counsel might have believed that the evidence was merely cumulative. Second, Robinson could say only that she saw the injuries tw o days after Kennedy’s fight with Layton. Robinson had no personal know ledge precisely when or how they were inflicted. We therefore do not agree with Kennedy’s assert ion that Robinson’s testimony would have spoken to her lack of specifi c intent to commit mayhem. Third, the majo r injury in dispute was the injury depicted in Defense Exhibit D. Ke nnedy’s own doctor could not identify that injury, and noth ing in Robinson’s declaration identifies the injury or
connects it to the alte rcation with Layton.
C. The failure to call Aaron Owens

. Owens, defendant’s brother, signed a decl aration dated August 13, 2012 stating that after hearing a knock on his door the mo rning of March 7, 2010 , he never opened the
door for his sister and she never came into th e house. If she had come into the house to get a glass, he “would have been able to see her do that.” He did not witness a fight between Kennedy and Layton and he did not intervene in one. As with Robinson’s testimony, we can ea sily discern several reasons why trial
counsel could have decided not to call Owens as a witness. First, Owens was Kennedy’s brother. As her brother, counsel could have th ought his credibility woul d be too suspect.
Counsel could have believed that a jury would reject as incred ible his assertion he didn’t let his sister into his house (after all, why fo rce Layton out of the house if he never let his sister in) and that he did nothing to intervene in an attack which, it is reasonable to infer, he was aware of. Second, Owens’s test imony did not negate Layton’s testimony Kennedy went into the house to get a glass. That Owens “would have been able to see” Kennedy get a glass does not show that Kenn edy never went into the house to get the weapon. The only way he could say that Kennedy never got a glass is if he had a view of

9 As part of the petition, Kennedy attaches a letter sent to her trial counsel asking him to explain why he didn’t ca ll Robinson and Owens at trial.25 the entire house at once or if he was with her in the house, a fact he denied. Even if the jury believed that Kennedy got into the backyard by coming ar ound the house rather than through it, the jury still could have believed that Ke nnedy went into the house through the back door to get the glass.
D. Mischaracterization of the 2003 prior battery. Finally, Kennedy contends that her trial counsel was ineffective because he failed to object to the prosecutor’s characteriza tion of the prior 2003 ba ttery. The evidence,
introduced via the officer w ho responded to the scene, wa s that Kennedy said, “ ‘I got mad because my man was talking w ith that bitch. So we started fighting and I bit him.’ ” Based on this, Kennedy argues that the evid ence was she fought with her boyfriend and not with the woman he was talking to. But when the prosecutor qu estioned Kennedy about the in cident, he characterized the incident as a fight with the woman. He asked Kennedy whether when she “started attacking that female and when your boy friend intervened you bit him,” and she answered, “No.” During clos ing argument, the prosecutor argued that Kennedy “went after the boyfriend when he tried to interven e after she started attacking the female” and the only reason Kennedy didn’t attack Williams during the current altercation with Layton was he didn’t in tervene on her behalf. There was a tactical reason why Kennedy’ s trial counsel may not have objected:
this was a fair characterization of the ev idence. Certainly, one interpretation of Kennedy’s statement that “ ‘we started fighti ng and I bit him’ ” is she fought with her boyfriend and bit him. But because it was never clarified who the “we” referred to, Kennedy could also have been referring to th e woman her boyfriend was talking to. And although Kennedy denied that sh e bit her boyfriend after he intervened in her attack on the woman, it is unclear whether she was deny ing the incident occurred or what exactly she was denying. We therefore conclude th at Kennedy’s trial c ounsel did not give ineffective assistance by failing to object to these statements.26 VII. Cumulative error.
Defendant contends that the cumulative e ffect of the purported errors undermined the trial’s fundamental fairness and requires re versal. As we have “ ‘either rejected on
the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusi on with respect to the cumulative effect of any purported errors. ( People v. Cole (2004) 33 Cal.4th 1158, 1235-1236; People v.
Butler (2009) 46 Cal.4th 847, 885.)27 DISPOSITION The one-year enhancement imposed unde r section 12022.7, subdivision (a), is stricken. The Clerk of the Superior Court is directed to forward a modified abstract of judgment reflecting this modification to the Department of Corrections. The judgment is
otherwise affirmed as modifi ed. The petition for writ of habeas corpus is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.