Filed 4/23/14 P. v. Brown CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
LAMAR BROWN,
Defendant and Appellant. B242118
(Los Angeles County Super. Ct. No. NA089671)

APPEAL from a judgment of the Su perior Court of Los Angeles County, Mark C. Kim, Judge. Affirmed as modified. Linn Davis, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys Genera l, for Plaintiff and Respondent.

_____________ ____________2 Defendant and appellant, Lamar Brown, appeals his convictions for corporal injury to a cohabitant, and assault by mean s of force likely to produce great bodily injury, with great bodily injury and prior serious felony conviction findings (Pen. Code, §§ 273.5, (form er) 245, subd. (a)(1), 12022.7, 667, subds. (a)-(i)). 1 Brown was sentenced to state prison for a term of 34 years to life. The judgment is affirmed as modified. BACKGROUND Viewed in accordance with the usual rule of appellate review ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evid ence established the following.
1. Prosecution evidence. Denesha C. and defendan t Brown had been romanti cally involved on-and-off since junior high school. In 2010, Brow n began living with Denesha and her three children in an apartm ent on Redondo Avenue in Long Beach. In January 2011, 2 they moved into an apartment on Junipero Avenue. Brown moved out in February following an argument with Denesha. Wh en Brown, accompan ied by his friend, Fred Mims, came by the apartment to pick up some belongings, there was a physical altercation. Brown pushed De nesha down onto the bed while choking her. He also bit the inside of her lip. Denesha, who was pr egnant with Brown’s child at the time, did not call the police. They reconciled s hortly afterward and Brown moved back in. On July 31, Brown asked Denesha to come with him to a party at his mother’s house. Denesha said she was tired, so Brown went by himself. When he returned later that night, Brown brought so me food with him and he w oke Denesha up to help him put it away in the refrigerato r. Brown was drunk and angry because he had had a fight with his mother. He and Denesha argued a bout fitting the food in to the refrigerator. To calm things down, Denesha went into the living room and sat on the couch.

1 All further references are to the Penal Code unless otherwise specified.

2 All further date references are to th e year 2011 unless otherwise specified.3 Brown came in and continued to argue. Th en he headbutted Denesha in the nose and hit her in the face. Denesha could not re member anything after that and believed she had been knocked unconscious. The next thing Denesha r ecalled was feeling pain in her face and realizing she was bleeding. Brown told her to call the po lice. He was crying and apologetic, and he said “Don’t let me get away with what I did.” The tape of Denesha’s 911 call was played for the jury. Denesh a, who can be heard sobbing, told the operator Brown had hurt her and that her nose was bleeding. In the background, Brown can be heard telling Denesha: “[Y]ou’re not gonna say nothing.’ ” Although Brown told Denesha he was going to wait for the police to arrive, he left as soon as they heard a siren. Officer Alvino Herrera re sponded to Denesha’s 911 ca ll. Upon arriving outside the apartment building, he sa w Brown walking away hurriedly and arrested him. After booking him at the police station, Herrera noticed blood spatte r on Brown’s shoes. Officer Kenneth Green made contact with Denesha when she came to open the apartment gate for the police. She was cr ying hysterically, hyperventilating, vomiting and unable to communicate. Her face was bl eeding profusely. Gr een took her back to the apartment to wait for the paramedics. As she was being treated, Denesha told Green that Brown had headbutte d her and punched her in the face and head. She could not remember exactly how many times sh e had been punched because she “was extremely dazed and in a lot of pain.” De nesha told Green “that in the past [Brown] threatened to kill her during times when he was upset at he r” and “as a result of what had happened, she was in fear for her life. ” Denesha wanted Brown prosecuted, so Green gave her “temporary restraining order information.” Green took Denesha to the emergency room at Community Hospital Long Beach. At the hospital, Denesha told Detectiv e Rubi Castro that she had been head butted. Because she was dazed, she could not “recall if she was either punched or slapped,” but she definitely rememb ered being hit in the head. Denesha was treated in the emergency ro om by Dr. Charles O’Brien. She told him she had been punched multiple times in the face, but that she had not lost4 consciousness. A CAT scan showed multip le fractures to her nasal bones, cheek bone, and “orbital wall or eye socket.” O’ Brien explained how much force had been required to cause these injuries: “To br eak someone’s orbital or eye socket and maxillary bone, it takes at least 50 G’s of force 3 . . . . [I]t’s like dropping . . . a 50- pound weight on someone’s face ” from a distance of a foot or two. Given the severity of Denesha’s facial fractures and the varied locations of her injuries, O’Brien opined “it would be more than one head butt, not ju st one head butt.” He also testified: “[A] head butt is such a broad area that to get the nose and this area (indicating), I don’t imagine a head butt causing this. It’s . . . more consistent with a fist in my opinion.” “Q. And it’s your testimony that one blow to the fa ce could not have caused . . . the injuries? Is it likely? [¶] A. It’s unlik ely.” O’Brien testified Denesha said “she was struck with a fist multiple times” which, he opined, “was consistent with her injuries.”
2. Defense evidence. Frederick Mims testified he had gone to high school with Brown. They were such close friends they called each other “c ousin.” When Mims helped Brown move some of his belongings out of the Junipero Avenue apartment, he did not see Denesha crying or any blood on her face. Brow n and Denesha were smiling and they kissed each other when Brown and Mims departed. Brown testified in his own defense. Denesha had been his girlfriend on and off since he was 14. Their relationship became more serious in 2009, when he was in his early 30’s. He acted as a father toward De nesha’s children, even though they were not his, and they called him “Pops.” Brown te stified he had never been violent with Denesha and that her cont rary testimony was a lie. Brown moved his things out of the Junipero apartment a few weeks after moving in because he and Denesha were fi ghting about his philandering. He denied

3 O’Brien testified: “[T]hat’s [a] cons ervative estimate. It ’s been documented that for the maxillary bone, it could be 50 to 100 G’s of force.”5 pushing her onto the bed, ch oking her, or biting her lip. After he drove away with Mims, Denesha called and asked him to move back in, which he did a few days later. On July 29, Denesha accuse d him of cheating on her again because he smelled of perfume. Brown testified Denesha was right; he had been cheating. She warned him that if he broke her heart he would “lose everything.” On the morning of July 31 , Denesha refused to attend the party at his mother’s house, so he went alone. When he re turned home at 11:00 p.m., Denesha was upset because he was late. She co mplained he hadn’t put the food into the refrigerator correctly, saying: “You always do this dumb shit.” They ar gued. When Denesha smelled perfume on Brown’s shirt, she accused him of cheating again. This time it wasn’t true and Brown denied it. Denesha was sitting on the couch. Brown knelt or crouched down in front of her, put his ha nds on her knees, and to ld her he had not cheated. They continued to argue. Fina lly, Brown said he had cheated on her, not because it was true but only because he was tired of arguing. At this point, Denesha started to get up from the couch, which caused Brown to stand up quickly in order to avoid being knocked over. This re sulted in a collision during which Brown accidentally headbutted Denesha, who fell back onto the couch, unconscious. When she came to, Brown apologized but De nesha “started ranting and raving,” saying “You fucked up . I told you. You going to lose everything.” Brown told her to call 911 becau se she was injured. To stop th e bleeding, he put a shirt on her nose and then a towel. He left before th e police arrived because he didn’t want them to scare the children by coming in to the apartment to arrest him. CONTENTIONS 1. Brown’s convictions must be re versed because there was pervasive prosecutorial misconduct. 2. The trial court erred by denying Brown’s Romero motion to dismiss a Three Strikes prior. 3. Brown is entitled to additional presentence custody credits.6 4. [By the Attorney General] Th e abstract of judgment contains a clerical error. DISCUSSION
1. There was no prosecutorial misconduct. Brown contends his convictions must be reversed because the prosecutor engaged in misconduct in order to vilify him and bolster Denesha’s credibility. Brown argues: “While each instance of mi sconduct by itself w ould not be cause for reversal, the cumulative effect of all the misconduct requires reversal because it infected the trial with such [un]fairness [as] to render the resulting convictions a denial of due process.” 4 This claim is meritless.

a. Legal principles. As we have said: “ ‘Under California law, a prosecutor co mmits reversible misconduct if he or she makes use of “deceptive or reprehensi ble methods” when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, co nduct by a prosecutor that does not result in the denial of the defendant’s specific c onstitutional rights – su ch as a comment upon the defendant’s invocation of the right to remain silent – but is otherwise worthy of condemnation, is not a constitutional viol ation unless the challenged action “ ‘so infected the trial with unfai rness as to make the resulti ng conviction a denial of due

4 Despite Brown’s assertion the prosec utorial misconduct was “sometimes aided by erroneous court rulings,” he never actually makes any claims of trial court error in his opening brief. Brown cannot properly use his reply brief to broaden the contentions made in his opening brief. “O bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief. [Citation.]” ( People v. King (1991) 1 Cal.App.4th 288, 297, fn. 12; see People v. Newton (2007) 155 Cal.App.4th 1000, 1005 [“ we do not consider an argume nt first raised in a reply brief, absent a showing why the argument could not have been made earlier”]; Moore v. Shaw (2004) 116 Cal.App. 4th 182, 200, fn. 10 [“Ordinar ily, an appellant’s failure to raise an issue in its opening brie f waives the issue on appeal.].)7 process.’ ” [Citations.] [¶] . . . [¶] ‘ “ ‘[T]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom’ ” [citation.] . . . .’ ( People v. Welch (1999) 20 Cal.4th 701 . . . .) ‘When we review a claim of prosecutorial remarks constituting misconduct, we examine whether there is a reasonable likelihood that the ju ry would have understood the remark to cause the mischief complain ed of. [Citation.]’ ( People v. Osband (1996) 13 Cal.4th 622, 689 . . . .) ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defe ndant must show a reasonable lik elihood the jury understood or applied the complained -of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury dr ew the most damaging rather than the least damaging m eaning from the prosecutor’s statements.’ [Citation.]” ( People v. Spector (2011) 194 Cal.App.4t h 1335, 1402-1403.) b. Denesha’s testimony revealing Brown had been incarcerated

. Brown contends the prosecutor committ ed misconduct by eliciting Denesha’s testimony that she did not report the Februa ry incident because she did not want him sent back to jail for a parole violation. Br own argues: “This was the first incident in the prosecutor’s design to show that appe llant was such a bad person, a person so violent and callous, his ve rsion of an accident c ould not be believed.” Brown had sustained prior felony co nvictions for attempted murder and attempted robbery. The trial court ruled the prosecution could refer to these priors, but only in a sanitized way by saying Brown ha d been in prison without specifying the nature of his crimes. The trial court also ruled the prosecutor could show Brown was on parole at the time of the February incide nt. Based on these rulings, the prosecutor told the jury during opening statement that “for a lo ngtime, [Brown] wa s incarcerated and . . . when he got out” he and Denesh a moved in together. When the February incident occurred, Denesha “d idn’t call the police because she didn’t want him to face the repercussions, having just gotten out of pr ison.” Defense counsel did not object to these statements.8 When Denesha testified, the prosecutor asked why she hadn’t called the police in February. Denesha replied, “Because I just chose not to.” The prosecutor asked why she had chosen not to, and Denesha sa id: “Trying to keep him from being in trouble.” The prosecutor then asked, “What do you mean?” and Denesha said “Get him back in jail.” Brown argues: “Because the prosecutor could not get Denesha to say what he wanted her to say, that is she did not wa nt appellant to be vi olated on parole, he repeatedly attempted to elicit this res ponse from her, underscoring what jurors probably already knew – appellant was in prison for a long time for something serious, he just got out and was on parole.” We cannot see any prosecutorial misconduc t here. The trial court had ruled the prosecutor could mention Brown’s prison incarc eration and the fact he was on parole. The prosecutor’s questions did not go further.

c. Testimony about Denesha’s miscarriage

. (1) Background. After Denesha described the February incident and explained why she had not reported Brown to the police, th e following colloquy occurred: “[Prosecutor]: Can I approach sidebar just for one question? “The Court: No. “[Prosecutor]: After this first incident . . . what happened to your pregnancy? “[Defense counsel]: Objection; relevance. “[Denesha]: I miscarried. “The Court: Hold on. Hold on. Sustained. “[Defense counsel]: I’ m sorry. Motion to strike her answer, Your Honor. “The Court: If she gave an answer, that answer is stricken. [¶] Ladies and gentlemen, if I strike the answer, you are to act as though you had not heard it. [¶] Next question. “[Prosecutor]: [Y]ou were pregnant you said during th e [February 2011] incident, correct?9 “[Defense counsel]: Your Honor, I’m going to object to this line of questioning, and it also – “The Court: Can I see bot h parties at sidebar?” At sidebar, the prosecutor explained Denesha had miscarried two weeks after the February incident, but su bsequently became pregnant with Brown’s child a second time. The prosecutor argued th is miscarriage information wa s relevant to clarify there had been two separate pregnancies and th at Denesha was not claiming she had been pregnant for 11 or 12 months. The trial court responded by asking if defense counsel would stipulate Denesha was now (i.e., in January 2012) pregnant with Brown’s child. Defense counsel agreed. But when the prosecutor argued the stipula tion should also state Denesha was now seven months pregnant and that she had also been pregnant in February 2011, the trial court accused the prosecutor of trying to s how Denesha’s miscarriage had been caused by the February incident. When the prosecut or said he had no su ch medical evidence, the court ruled the miscarriage informati on would be too inflammatory because the jury might assume causation. When the prosecutor reiterated his desire to “clarify the pregnancy timing,” the following colloquy occurred: “The Court: She’s going to stipulate that the child she is bearing at this point is, in fact, defendant’s child. What more do you need? “[The prosecutor]: I need the fact. “The Court: The only thin g that you need is for the elements of [Penal Code section] 273.5 [corporal injury on cohabitant] that either the defendant and the victim was cohabitant [ sic ], they were married, or they have a child. “[The prosecutor]: I understand, but th e only thing I’m saying is it would make it that she’d be 11 months pregnant or 12 months pregnant if she – “The Court: I’ve made my ruling. “[The prosecutor]: It goes to her credibility th at she’s said – can I ask her if she’s seven months pregnant? “The Court: She’s already said that.”10 When the prosecutor subsequently aske d Denesha for her due date, she said it was March 18, 2012. The trial court overru led defense counsel’s relevance objection. (2) Discussion

. Brown contends: “The prosecutor, knowin g that he had no evidence to back up his claim smuggled in evidence that Dene sha had a miscarriage due to appellant’s prior misconduct. The prosecutor committed se rious misconduct as part of his pattern of character assassinati on of appellant.” We disagree. The fact Denesha had been pregnant with Brown’s child in February 2011 helped explain why she did not report his assau lt to the police. Yet, as the Attorney General notes, th is evidence “left her credib ility damaged in one crucial aspect: how could Denesha be seven months pregnant during trial if she first became pregnant a year earlier in Janua ry 2011? Although the prosecutor tried to explain his position to the court, it does not appear th at he ever succeeded and [he] ultimately agreed to a stipulation that did not completely solve the cr edibility issue. The jury was not allowed to hear testimony that there had been two pregnancies.” Although the prosecutor may have been over ly cautious in wanting to protect Denesha’s credibility, his attempt to preven t jurors from concluding she was making the impossible assertion she had been pregnant for 12 months di d not constitute prosecutorial misconduct. d. Using the word “strangled ” and referring to a “protective order” While questioning Officer Castro, the pr osecutor used the word “strangled” in connection with the February incident, and as ked if Denesha had indicated an interest in obtaining a protective order. Brown comp lains this was part of the prosecutor’s attempt to vilify him. (1) Background

. While questioning Castro about her inte ractions with Denesha on the night of the July incident, the prosecutor asked whether Denesha had mentioned an earlier incident “where she was strangled.” Ca stro answered yes and defense counsel objected on relevance grounds. The trial c ourt sustained the objection “based on the form of the question.” The prosecutor then asked, “Did she co mplain to you about11 another incident that had occu rred a few months prior to this one?” Castro said yes. The prosecutor then asked, “[W]hat was her position on having a protective order done?” Defense counsel object ed on relevance grounds and the trial court ordered the parties to sidebar. The prosecutor expl ained he was only tryi ng to show Denesha wanted a protective order when the July incident occurred, which was relevant to rebut defense counsel’s inferences Denesha was lying when she said Brown had purposely injured her. The court sust ained the defense objection. (2) Discussion

. Brown claims the prosecutor’s references to strangulation and a protective order were designed to vilify him by suggesting he tried to murder Denesha during the February incident. Brown complains the pros ecutor left “the jury with the impression that the prior incident was not just a choki ng, [but that] appellant strangled Denesha, i.e., he tried to choke her to death. . . . [However,] there was no evidence that appellant tried to kill Denesha by strangulation in the past.” In our research we have found the terms “choking” and “strangulation” used pretty much interchangeably. (See, e.g., People v. Morgan (2007) 42 Cal.4th 593, 601 [“Bleeding in her neck muscles and hemorrha ges in her eyes revealed that Wong had been strangled or choked and had experi enced asphyxiation for a period of time.”]; People v. Cole (2004) 33 Cal.4th 1158, 11 93 [officer testified victim “had a bruise under her right eye and red welts around her neck, which were consistent with having been choked or strangled”]; People v. Price (2004) 120 Cal.App.4th 224, 230 [victim told police defendant “slapped her, straddled her, pinned her down and – placing two hands around her throat – began strangling her. [She ] feared she would lose consciousness.”].) Denesha’s own description of the Februa ry incident included this exchange: “A. He choked me on the bed. “Q. How did you get on the bed? “A. He started choking me when he was standing up and then I fell back on the bed.12 “Q. Did it stop your breathing for a period of time? “A. Yes, it did.” As to the prosecutor’s question about wh ether Denesha exhibited interest in a protective order when she spok e with Officer Castro at th e hospital following the July incident, it is apparent the prosecutor was trying in good faith to rebut defense counsel’s suggestion Denesha had been lying about Brown’s purposely injuring her. Denesha’s interest in a protective order woul d have gone to show she really had been frightened of Brown that night. This did not constitute prosecutorial misconduct.

e. Argumentative and repetitive questi ons during cross-examination of Brown. Brown contends th e prosecutor committed miscon duct by asking him repetitive and argumentative questions during cross-examination. (1) Background

. Defense counsel elicited Denesha’s te stimony that, after assaulting her, Brown told her to call the police. During his cross-examination of Brown, the prosecutor sought to undermine the implication Brow n never entertained any second thoughts about having told Denesha to call the police. The following colloquy occurred: “Q. And you helped her to the extent you could with the – from the bathroom and the towels and stuff?
“A. Yes. “Q. Oh, I bet you were happy she was calling 9-1-1, right? “[Defense counsel]: Ob jection; argumentative. “The Court: Sustained. Rephrase. “Q. By [the prosecutor]: Were you happy that she was calling 9-1-1? “[Defense counsel]: Ob jection; argumentative. “The Court: Sustained. “Q. By [the prosecutor]: Did you ask her to call 9-1-1? “A. Yes, I did.”13 Later, the prosecutor asked why Brown le ft the apartment dur ing the 911 call. Brown replied: “A. I left so that the police wouldn’t come up in the house and startle the kids. The kids were in the bedroom asleep. I walked out of th e house so the police couldn’t come up in there. “Q. So you have children sleeping and a girlfriend bleeding and you decide to leave? “A. I walked out so that the police wo uldn’t come up in there and startle the kids. “Q. And you felt startling the kids wa s more important than being there with your loved one wh o is bleeding waiting for help? “[Defense counsel]: Objec tion; that’s argumentative. “The Court: Overruled.” When Brown said he hadn’t thought abou t it at the time, the prosecutor asked: “[Q.] Why didn’t the person who is called Daddy by the kids go in and lay with the kids then to comfort them.” “[Defense counsel]: Objection; it’s ar gumentative. It’s confusing, vague. “The Court: Sustained. [¶] Rephrase the question. “Q. By [the prosecutor]: Why didn’t you go to the kids? “A. The kids were asleep. “Q. Wouldn’t you want to be there if they were woken up? Wouldn’t that be more important? “[Defense counsel]: Objec tion; that’s argumentative. “The Court: Overruled. “The Defendant: I wouldn’t want th e kids to watch me go to jail.” The prosecutor asked Brown a series of questions about whether he left the apartment because he thought Denesha was going to lie to the police about what happened. For instance: “Q. . . . What did you thi nk that she was going to say?14 “A. I don’t know what she was going to say. I stepped out the house so that the police wouldn’t come up into the house and scare the kids. “Q. Isn’t it true you left because she wa s about to talk to th e police? Isn’t that why you left? “A. No, it’s not. “Q. But it’s in your mind, you belie ve she’s going to falsely accuse you of something? “A. I didn’t know what she was going to do. I stepped out the house so the police wouldn’t come up in there and scare the kids.

. . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . “Q. By [the prosecutor]: In your mi nd, when you’re exiti ng that door, did you have any thoughts whatsoever of what she may or may not say to the police regarding your behavior?
“A. No. “Q. Okay. Did . . . it cross your mind that she might not tell the police the truth about what happen ed to her head? “A. I never thought about what she was going to say to the police.” At sidebar, the prosecutor explained he was trying to establish Brown had been aware Denesha was going to accuse him of injuring her. After noting Brown had already testified he did not know what Denesh a was going to say, the court ordered the prosecutor to move on. The prosecutor played the 911 record ing and asked Brown what he had been saying in the background that contained the word “not” repeated three times. Brown acknowledged he could hear himself saying th e word “not” on the tape, but testified he could not recall the context. He denied te lling Denesha not to say anything. The 911 recording was played again and the prosecutor asked: “[Q.] Did you just hear that tape saying, ‘You’re not go nna say nothing’? Did you hear that?15 “A. I can’t understand what it’s saying. All you hear is her in the background. “Q. You didn’t hear yourself saying that? “A. I heard a voice. I mean, you said it’ s my voice, but I . . . heard the voice, if that’s supposedly me. I mean . . . you can’t understand what it’s saying. “Q. Was there anybody else there calling 9-1-1? “A. That’s why I said it had to be me. “Q. Okay. And you . . . couldn’t understand anything on that tape? “A. No, sir. “Q. Okay. And . . . you did not say, ‘You’re not gonna – yo u’re not gonna say nothing. You got nothing on me’? You didn’t say that? “A. No, sir.” (2) Discussion

. Brown contends the prosecutor committ ed misconduct by repeatedly asking why he left the apartment before the polic e arrived, whether he thought Denesha was going to lie to the police, and what he sa id on the 911 tape. The Attorney General argues the prosecutor’s questions were le gitimate attempts to impeach Brown’s implausible story that, although Denesha ha d been injured accidentally, he left her bleeding in the apartment in order to evade the police sole ly to protect the children from being startled. We agree with the Attorn ey General. “Once a defendant takes the stand and testifies to the ci rcumstances of the charged offenses, the prosecu tor on cross-examination is permitted ‘to explore the identical subject matter in much greater detail.’ ” ( People v. Mayfield (1997) 14 Cal.4th 668, 754.) “[T]he permissible scope of cross- examination [of a testifying defendant] is ‘very wide.’ ” ( People v. Cooper (1991) 53 Cal.3d 771, 822.) “[B]y choosing to testify, defendant put his own veracity in issue.” ( People v. Tafoya (2007) 42 Cal.4th 147, 179.) “The pr osecutor is entitled to attemp t to impeach the credibility of a defendant’s testimony [citation] and . . . [w]hen a defendant chooses to testify concerning the charged crimes, the prosecutor can probe the testimony in detail and16 the scope of cross-examination is very broad.” ( People v. Dykes (2009) 46 Cal.4th 731, 764.) Because sarcasm and other rhetorical devices may highlight for the jury the improbability of a defendant’s testimony, their use in cross-examination is not necessarily improper. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1128, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151 [prosecutor asked defendant “Are you just making this up as you go along?”].) Here, the prosecutor’s questioning was zealous, but we cannot say it amounted to misconduct. f. Improper closing argument

. (1) Reference to Denesha’s pre liminary hearing testimony. The prosecutor argued to the jury that, although De nesha had made statements to two different police officers, testified at the preliminary hearing, and then testified at trial, the defense had been unable to find any significant contradictions in her statements or testimony. Defense counse l objected to the preliminary hearing reference on the ground this testimony had not been admitted at trial. The court admonished the jury they could only cons ider evidence that ha d been introduced at trial. The court then admoni shed the prosecutor, saying: “So stick to the evidence, please.” The prosecutor immediately remi nded the jury, withou t any objection from defense counsel, that Denesha testified sh e had given evidence at the preliminary hearing. This did not constitute prosecutorial misconduct. “[A] prosecutor may comment on the state of the ev idence, including the failure of the defense to introduce material evidence or to call witnesses.” ( People v. Mincey (1992) 2 Cal.4th 408, 446.) “A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. [Citation.] Comme nts on the state of the evidence or on the defense’s failure to call logical witnesses, introduce ma terial evidence, or re but the People’s case are generally permissible. [Citation.] Howe ver, a prosecutor may not suggest that ‘a17 defendant has a duty or burden to produce evid ence, or a duty or bur den to prove his or her innocence.’ [Citations.]” ( People v. Woods (2006) 146 Cal.App.4th 106, 112.) Here, there was no misconduct. The prosecutor was merely pointing out that if Denesha had made contradictory statemen ts, whether to the police or when she testified at the preliminary hearing, Brown would have pounced on those inconsistencies during trial. It was perm issible to comment on Brown’s failure to produce logical evidence that would ha ve discredited Denesha’s testimony. (2) References to implausible defense theories

. Brown contends the following comment s by the prosecutor attacking various aspects of the defense amounted to prosecutori al misconduct. This claim is meritless. (a) “You have to create an accident.” The prosecutor argued the defense, faced with overwhel ming evidence that Denesha’s injuries had been in tentional, “need[ed] to discre dit the victim. You’ve got to make her into a liar, and you’ ve got to have a motive to lie . That’s one way to try to defend the case. Additionally, you have to explain away the injuries. And lastly, you have to create an accident, which is a defense to the case.” (b) “Scenario created is an accidental touching” The prosecutor argued that, although the defense claimed Denesha and Brown had been fighting about his philandering, de fense counsel never challenged Denesha’s testimony there had been only a silly argumen t about storing food in the refrigerator. The prosecutor suggested the de fense strategy had instead been to steer the jury toward Brown’s accident testimony: “The argument wa sn’t about cheating. That’s what she said. They discussed that before, that argument that ni ght wasn’t about cheating. That’s what she says and neve r confronted otherwise. [¶] Explain away the injuries. Well, to explain away the injuries. It ha s to be accident. That’s the only way to defend a case with such significant injuries. . . . The scenario creat ed is an accidental touching of the heads.”18 (c) “Under the concocted scenario” The prosecutor argued Brown’s versi on of the incident was unbelievable. Brown testified that two days earlier, when Denesha accused him of being unfaithful, he acknowledged he had been. Brown also testified he came hom e two nights later again smelling of perfume but this time he ha d not been unfaithful, although he falsely admitted to cheating because he was tired of arguing. The prosecutor told the jury: “He wants you to think that he’s going to lose everything if he’s caught cheating again, yet . . . he’s willing to go out late, come back and has perfu me on his jacket three days later. Then he’s in front of her with hi s hand on her leg and she’s saying, ‘Have you cheated? Have you cheated?’ Knowing I’m going to lose everything and saying, okay, I’m going to admit. I’m going to lose everything. Yes, I cheated again. No way in heck I suggest to you would someone un der the concocted scenario to give her motive 5 would ever be in that situation.” The trial court overruled defense counsel’s objection to prosecutorial misconduct. (d) Accusing defense counsel of asking Mims leading questions

. The prosecutor attacked Mims’s ac count of the February incident by questioning his credibility, arguing there we re inconsistencies in his testimony, pointing out he was such a close friend of Brown they called each other “cousin,” and suggesting he had been guided by defens e counsel’s leading questions when he testified Denesha and Brown had been amorous with ea ch other that day. As to the latter issue, Mims testified as follows: “Q. Did you see Mr. Brown showing any type of affection to Denesha while he was there? “A. Yes, I did. “Q. What did you see? “A. Smiling, idle chatter. There wasn’t no – I’m so rry. Go ahead.

5 This was an apparent reference to defense counsel’s argument Denesha was lying about what happened because she wanted revenge for Brown’s philandering.19 “Q. Did they embrace each other or kiss each other? “[The prosecutor]: Objection; leading. “The Court: Sustained. Rephrase the question. “[Defense counsel]: Thank you, Your Honor. “Q. Did you see . . . them sharing any affection towards each other? “A. Well, when we finish ed putting the things in th e car, she told me, ‘Okay, Fred. Nice knowing you.’ And he said, ‘It’s not like that. Don’t be like that,’ and he went to hug her. He hugged her and kind of like kissed he r on the cheek, and she was like, ‘Oh, Lamar.’ And it wasn’t like it was a don’t do it or you shouldn’t have did it or anything like that.” Again outside the jury’s presence, defense counsel co mplained the prosecutor was in essence accusing her of having fabricated the defe nse by signaling her desired answers while examining Mims , and by colluding with Brown to come up with the accident story. Defense counsel objected on the ground of improper argument and asked for a curative instruction. The tr ial court said its interpretation of the prosecutor’s remarks was different: the prosecutor was simply arguing that Brown’s “testimony about the injuries being caused by one minor h ead butt was not credible,” and that Mims’s testimony wa s not credible because it was inconsistent and he was so personally close to Brown. During closing argument, the prosec utor commented on this testimony: “[Mims’s] exact quote on what was the roman tic contact . . . I don’t have the question, but he goes, ‘Oh, they just smiled and had idle chat.’ Th at’s what he said. Now, [defense counsel] says, ‘Were they . . . ki ssing?’ ‘Oh, yeah. They were kissing.’ Well, was it a kiss? Well, kind of. . . . I s uggest to you the way that whole thing came down and trying to fit in the defense and the questions . . . that led to the answers would cause some suspicion.”20 (e) Discussion

. “Although counsel have broad discreti on in discussing the legal and factual merits of a case [citation], it is improper to misstate the la w [citation] or to resort to personal attacks on the integrity of opposing counsel [citation].” ( People v. Bell (1989) 49 Cal.3d 502, 538.) “If there is a reasonable likelihood that the jury would understand the prosecutor’s stat ements as an assertion that defense counsel sought to deceive the jury, misc onduct would be established.” (See People v. Cummings (1993) 4 Cal.4th 1233, 1302.) On the other hand, “[a]n argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is th e relevant evidence is not improper.” ( Id . at p. 1302, fn. 47.) We do not agree the jury would ha ve believed the prosecutor was claiming defense counsel had colluded in the creation of false testimony. Rather, the jury would have realized the prosecutor’s comments were mere hyperbole mean t to cast doubt on Brown’s version of events. Two cases relied on by Brown to de monstrate prejudicial misconduct are simply inapposite. In People v. Bain (1971) 5 Cal.3d 839, the prosecutor implied defense counsel had coached the defendan t to lie. During closing argument, the prosecutor said: “ ‘You might say to yourse lf, “The defendant’s got a good story.” Did you think he was going to co me in here without a good story? He’s had how long to prepare . . . . I don’t want to imply that my colleague here, that he told him what to say, but he has the assistance of a lawyer.’ ” ( Id. at p. 845.) Bain held this constituted misconduct: “The unsupported implication by the prosecutor that defense counsel fabricated a defense constitutes misconduct.” ( Id. at p. 847.)
In People v. Herring (1993) 20 Cal.App.4th 1066 , the prosecutor implied defense counsel had suborned perjury by inst ructing the defendant to invent a consent defense to a rape charge. “The prosecutor’s comments, i.e, ‘[m]y people are victims. His people are rapists, murderer s, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth,’21 were clearly improper and misconduct. His argument inferred that all those accused of crimes whom defense counsel represented ar e necessarily guilty of heinous crimes. Additionally, he impliedly denigrated the presumpti on of innocence and the requirement that guilt be proved beyond a reasonable doubt. More egregious, he inferred that defense counsel su borned perjury. It is im proper for the prosecutor to imply that defense counsel has fabricated evidence or to otherwise malign defense counsel’s character. [Citations.]” ( Id. at p. 1075.) “The prosecutor’s comments accused defense counsel of fabricating a defe nse [and] implied that appellant lied on instructions from his counsel . . . .” ( Id. at p. 1077.)
As People v. Gionis (1995) 9 Cal.4th 1196, explai ned: “[B]oth of those cases reflected extreme instances of prosecutorial misconduct. In [ Herring ] . . . the [prosecutor’s] argument [in e ffect] accused defense counse l of suborning perjury and implied that defense counsel di d not believe his own client. It also implied that all those accused of crimes whom defense counse l represented were necessarily guilty of heinous crimes. [Citation.] Similarly, in [ Bain ] the prosecutor not only asserted that defendant and his counsel had fabricated a de fense, but he also attacked the integrity of counsel and the office of the public defe nder. Additionally, the prosecutor referred repeatedly to racial matters, stating at one point that he, as a Black man, would not be prosecuting a Black defendant unless he personally believe d the man to be guilty. [Citation.]” ( Id. at pp. 1220-1221.) The prosecution’s closing argument he re was nothing like what happened in
Bain and Herring. The prosecutor’s statements were not likely to have been heard by the jury as a claim defense co unsel had instructed Brown or any other witness to lie. Rather, those statement were likely interpre ted as “an admonition not to be misled by the defense interpretation of the evidence, rather than as a personal attack on defense counsel.” ( People v. Cunningham (2001) 25 Cal.4th 926, 10 02, 1003 [referring to prosecutor’s permissible argument that defense counsel’s “ ‘job is to create straw men. Their job is to put up smoke, re d herrings. And they have done a heck of a good job. And my job is to straighten that out and show you where the truth lies. . . .’ ”]; see also22 People v. Turner (2004) 34 Cal.4th 406, 430 [“ ‘The prosecutor is perm itted to urge, in colorful terms, that defense witnesses are not entitled to credence [and] to argue on the basis of inference from the evid ence that a defense is fabricated . . . .’ [Citation.]”].) We have not specifically addressed he rein every single instance of alleged prosecutorial misconduct, although we have reviewed them all. These include claims the prosecutor took unfair advantage of favorable court rulings, mischaracterized evidence, and tried to steer the jury away from requesting readbacks of testimony. We have reviewed each allegation and conclu de that, whether considered individually or collectively, they did not constitute pros ecutorial misconduct. They did not involve the use of deceptive or reprehensible met hods and, given the overwhelming evidence showing Denesha’s injuries had not been caused accidentally, it is not reasonably probable Brown would have achieved a more favorable outcome in their absence. ( People v. Spector, supra, 194 Cal.App.4th at pp. 1402-1403 .) Nor did they so infect the trial with unfairness that due process was violated. ( Ibid .)
2. Romero motion was properly denied. Brown contends the trial court abused its discretion by refusing to dismiss, under the authority of People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, one of the prior convictions used to impose a Three Strikes sentence. This claim is meritless.

a. Legal principles. The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony convic tion allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in questi on must consider whether, in light of the nature and circumstances of his present fel onies and prior serious and/or violent felony convictions, and the particulars of his ba ckground, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence23 should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” ( People v. Carmony (2004) 33 Cal.4th 367, 375.) “In revi ewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentenci ng objectives, and its disc retionary determination to impose a particular sentence will not be set as ide on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely be cause reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [C itations.] Taken together, these precepts establish that a trial court does not abus e its discretion unless its decision is so irrational or arbitrary that no reasona ble person could agree with it.” ( Id . at pp. 376- 377.) b. Discussion

. Brown argues there was an abuse of di scretion because the trial court’s decision was predicated on its faulty recollection that Dr. O’Brien had testified Denesha’s injury was among the worst he had ever seen in the emergency room. The Attorney General acknowledges O’Brien never said th is. Unfortunately, the trial court’s misstatement went uncorrected. However, we agree with the Attorney General’s argument this single factor was not critical to the court’s denial of Romero relief. Brown concedes the trial court also expressed the following concerns: there were no mitigating factors; Br own had only recen tly been released from prison and he was still on parole for serious felonies when he assaulted Denesha; at the time of the assault Denesha was pregnant with his ch ild; Brown never accepted responsibility for his crimes. Moreover, there was no do ubt Denesha suffered extremely serious injuries. There was overwhel ming evidence Brown had punched her very hard in the24 face multiple times, fracturing her nasal bones , cheek bone and eye socket. Following her hospitalization, Denesha had to undergo a course of treatment by a plastic surgeon. The trial court saw photographs documenti ng Denesha’s injuries. The jury found Brown had inflicted great bodi ly injury on Denesha. Brown tries to obscure the fact he ne ver accepted responsibility, asserting: “Taking responsibility means being accountable or answ erable for one’s conduct. Appellant in addressing the court stated: ‘I’m sorry for the hur t and pain I have caused. . . . The jury has f ound me guilty so I have to be punished.’ ” (Ellipsis in original.) But the ellipsis in this quotatio n omits Brown’s assertion that “It was truly an accident.” We can only say that, truly, Brown did not take responsibility for his actions. In addition, Brown had sustained the following adult convictions: carrying a loaded firearm in a public place (1996 ); carrying a concealed weapon (1997); attempted murder and attemp ted robbery (1997); disord erly conduct (2009). Given Brown’s recidivism, the severity of the injuries he inflicted on his pregnant domestic partner, the fact he was on parole when the crimes were committed, and his refusal to accept responsibility, th e trial court plainl y did not abuse its discretion by denying his Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p. 378 [“ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in co nformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ ”].)
3. Improper calculation of presentence custody credits must be corrected. Brown contends, and the Attorney Gene ral properly concedes, the trial court miscalculated the presentence custody cred its. Brown is entitled to an additional 48 days presentence credit. The trial court awarded no conduct cr edits for Brown’s 320 days of actual presentence custody. However, on a Three Strikes case involving a violent felony, a defendant is entitled to 15 percent of the conduct credit otherwise available to non-25 Three Strikes defendants. (See People v. Caceres (1997) 52 Cal.App.4th 106, 113 [“We . . . hold that pursuant to section 2933. 1, a prisoner convicted of a violent felony listed in section 667.5[ 6 ] and sentenced under the Three Strikes law or initiative ‘shall accrue no more than 15 percent of worktime credit, as defi ned in Section 2933.’ ”].) The judgment will be modified to reflec t a total of 368 days presentence credit.
4. Clerical error in abstract of judgment must be corrected. The Attorney General points out the abst ract of judgment contains a clerical error. While the trial court properly imposed a $40 court security fee and a $30 court
facilities assessment for each of Brown’s tw o convictions, the abstract of judgment reflects only a single set of fees. The court facilities assessmen t (Gov. Code, § 70373) and the court security fee (§ 1465.8) “are mandatory.” ( People v. Woods (2010) 191 Cal.App.4th 269, 272.) Section 1465.8 provides for a fee to “be imposed on every conviction for a criminal offense.” Government Code section 70373 provides for an assessment to “be imposed . . . for each misdemeanor or felony . . . .” Hence, these fees are to be imposed for each conviction. ( People v. Castillo (2010) 182 Cal.App.4t h 1410, 1415, fn. 3 [regarding § 70373]; People v. Schoeb (2005) 132 Cal.App.4t h 861, 865 [regarding § 1465.8].) Here, the trial court properly imposed one court facilities a ssessment and one court security fee for each conviction , but the abstract of ju dgment reflects only a single assessment and fee for both convictions . We will order the abstract of judgment corrected. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [abstract of judgment is not judgment of conviction and does not co ntrol if different from trial court’s oral judgment; it is proper and import ant to correct such errors in abstracts of judgment].)

6 Section 667.5, subdivision (c)(8), incl udes “[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice.” Brown was found to have inflicted great bodily injury on Denesha.26 DISPOSITION The judgment is affirmed as modified . The abstract of judgment must be corrected to properly reflect a total of 36 8 days presentence custody credit, and the imposition of a court security fee and a court facilities assessment for each conviction. The trial court is directed to forward an amended abstract of judgment to the Department of Corrections and Rehabilitation. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

KITCHING, J.

ALDRICH, J.