People v. Mendoza CA4/1

Filed 11/10/26 P. v. Mendoza CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D086911 Plaintiff and Respondent, (Super. Ct. No. RIF2101760) v. ANGEL CARLOS MENDOZA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Riverside County, Timothy J. Hollenhorst, Judge. Affirmed. Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Robin Urbanski and Stephanie Chow, Deputy Attorneys General for Plaintiff and Respondent. A jury convicted Angel Carlos Mendoza of the second degree murder of Manuel Garcia (Pen. Code, § 187, subd. (a)) and found true allegations that Mendoza personally and intentionally discharged a firearm causing death (Id., § 12022.53, subd. (d)). The court sentenced Mendoza to 40 years to life in prison: 15 years to life for the murder and 25 years to life for the firearm enhancement. On appeal, Mendoza contends the prosecutor committed prejudicial misconduct during closing arguments by asserting facts not in evidence— namely that Mendoza shot Garcia in the back while Garcia was trying to run away. Alternatively, recognizing that his counsel did not object to the alleged misconduct, Mendoza argues he was denied his Sixth Amendment right to constitutionally effective representation. We conclude Mendoza forfeited his claim of prosecutorial misconduct by failing to object to the prosecutor’s remarks during trial. We also reject Mendoza’s related claim of ineffective assistance of counsel. We therefore affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND The Shooting Mendoza and Garcia were cousins and knew each other since they were young. In 2020, Mendoza and his family stayed with Garcia’s family for a time. In May 2021, Garcia lived with his unmarried partner, L.N., and their two children, N.G. and S.G., who were then respectively ages six and nine. At that time, it was not unusual for Mendoza to come to the house and visit Garcia, who worked from a home studio as a tattoo artist. When Mendoza came to visit, he and Garcia would stay in the tattoo room. One afternoon that month, Mendoza came over and he and Garcia went into the tattoo room. At some point, L.N. asked S.G. to clean and get some napkins for that purpose. Knowing her father had napkins in his tattoo room, S.G. knocked on the tattoo room door. As she approached, she could 2 hear conversation but could not make out what was being said; she did not hear any yelling before she knocked. When her father opened the door, she saw him and Mendoza in the room. Garcia was sitting by the door, and Mendoza was sitting on a stool in the corner. Both men looked serious; Mendoza was staring at her. S.G. agreed her father was a “big guy” and when he had such a look on his face she would take it seriously. She remembered his look because he was not like that a lot, so it stood out to her. While Garcia and Mendoza were in the tattoo studio, L.N. could hear Garcia on the phone saying, “I’ll call you back right now.” She then heard him say in a “serious” tone, “You are tripping. Why would I do that?” L.N. could hear talking but it did not sound like arguing; she did not hear banging, things being thrown, yelling or threats. After a few minutes, L.N. heard between three and four gunshots in quick succession. She saw Garcia come out of the door and head toward a hallway. Mendoza then left the room and ran toward the front door, holding a gun pointing up. L.N. ran toward Garcia, who had fallen face down. L.N. tried to move him and saw blood gushing out; she ran outside and screamed for help. She did not see a gun anywhere around him. The night before the shooting L.N. and Garcia argued about L.N.’s dislike for guns; she called Garcia after she saw Mendoza through a doorbell camera holding a firearm, and told him she did not want Mendoza at the house if he was going to carry a gun because the children were home. Garcia and other family members knew Mendoza carried a gun, as he displayed one at a gathering about a year before the shooting, causing Garcia and his friends to run inside. On that occasion, however, Mendoza was not angry and he did not point the gun at anyone. 3 Mendoza’s Arrest and the Investigation Responding sheriffs spotted Mendoza in an apartment complex shortly after the shooting. When a sheriff called out to him, he kept walking, then began to run away. Once the officers caught up to him, he threw down a loaded semi-automatic gun. Officers found a loaded magazine in Mendoza’s pocket. Another responding officer removed a magazine from the gun. At the time of his arrest Mendoza had a tattoo under his eye that read “redrum,” which is “murder” spelled backwards. Investigators processed the scene after the shooting. On a shelf in L.N.’s and Garcia’s bedroom closet, they found marijuana and an unregistered loaded .25-caliber gun. The hammer on the gun was back, cocked and ready to be fired. They found a pipe with white residue on it on the tattoo table. Investigators found bullets and bullet casings in the tattoo studio. A criminalist testified that four casings provided to her from the scene were all fired from the same gun. A forensic pathologist who performed Garcia’s autopsy testified about Garcia’s injuries. Garcia had one entrance wound around his left collarbone going from front to back, left to right, and downward. He had another wound closer to his left shoulder, going front to back, right to left and downward. Garcia had a graze wound on the back of his right shoulder; another entrance wound to his left shoulder, which traveled through his torso and exited through his back; and an entrance wound to his left arm, which resulted in an exit wound also on his arm. Garcia died as a result of these wounds. As relevant here, the evidence established that Garcia sustained two gunshot wounds to the back. One was the exit wound for the bullet that entered his left shoulder. The other was the graze wound to the back of the right shoulder. Exhibit 81 is a photograph and closeup depicting both of 4 these gunshot wounds to the back.1 An officer who responded to the scene described seeing a gunshot wound to Garcia’s “upper right back” when they moved him slightly. He apparently did not observe the other gunshot wound to the back. Mendoza’s Interrogation Police interrogated Mendoza after his arrest. At first he denied any involvement in the incident or even being present at Garcia’s house. After being confronted with evidence he was there, including video surveillance footage, Mendoza then admitted he went to the house to “chill.” Mendoza denied that he and Garcia had had any fight or argument, and denied Garcia tried to hurt him, had a beef with him, or that he had done anything to Garcia. He denied ever having a gun. Investigators told Mendoza repeatedly that they just wanted to understand what happened. When they informed him that Garcia had died, his emotions did not change; he just said he felt bad. When asked directly, Mendoza denied that Garcia pulled a gun on him, and he denied that Garcia had a gun or any weapon. Mendoza denied that Garcia ran up on him or threatened him. Mendoza’s Trial Testimony Mendoza testified in his defense. He said he spent most of his time during the week with Garcia at Garcia’s house and other places. Around May 2021, Mendoza would go to Garcia’s house specifically to pick up methamphetamine, usually at night after L.N. left for work. He and Garcia would smoke methamphetamine there. Mendoza and Garcia had been 1 The parties did not request transmission of Exhibit 81 to this court but we have done so and reviewed the exhibit. (Cal. Rules of Court, rule 8.224(d).) 5 smoking methamphetamine daily since November of the prior year, several times a day. If it were 10:00 at night, Mendoza typically would stay at Garcia’s house and smoke all night until about an hour before L.N. came home at 7:00 a.m. Mendoza normally had a gun with him when he went to Garcia’s house, and Garcia was aware he carried a gun. Mendoza had also seen Garcia with a gun. At some point, Garcia showed a gun to Mendoza and handed it to him in the tattoo room. Mendoza saw Garcia with the gun in various areas of his house: at times in the front yard, in the tattoo room on top of or inside a dresser near the chair Garcia was sitting in on the day of the shooting, or in his shorts. Garcia had a Glock pistol and also a TEC-9, which was a semi- automatic firearm. Garcia kept other guns in an air vent inside his house. On the day of the shooting, Mendoza hung out with Garcia outside in his driveway, then they went inside to his tattoo room. They closed the door and smoked methamphetamine from a pipe. When S.G. came to the door, they stopped smoking, and Garcia gave her the napkins she asked for. They resumed smoking once S.G. left. Mendoza testified that he started feeling the effects of the methamphetamine because he had been up for three days smoking methamphetamine nonstop, he “just start[ed] freaking,” and he was “not [him]self when [he was] high.” As he described it, “Everything feels different. Like when I look at it, everything like around me.” He described the effects of methamphetamine felt like seeing “shadows and stuff” that were not really there. He also described feeling a vibration on his head, and hearing voices. The methamphetamine affected his judgment and made him paranoid. He was hearing voices the day of the shooting but they had nothing to do with why he shot Garcia. 6  That day, Mendoza was sitting on a stool in the corner, and Garcia was sitting in a chair closer to the door, and they were talking. Mendoza had his gun on his waist. Mendoza texted his mother, telling her he loved her. Garcia was on his phone. Then he and Garcia got into an argument about how Mendoza was acting, and it got “serious.” Garcia said to Mendoza, “You’re tripping,” and stood up “all angry like,” according to Mendoza. Based on the way Garcia got up and his raised voice, Mendoza was frightened and startled, and concerned for his safety. He had seen Garcia with a gun in his shorts pocket the night before. Before the shooting, both Mendoza and Garcia had a gun on them at all times. However they had never pointed guns at each other. Mendoza did not see Garcia with a gun that day. Once Garcia quickly got up, everything “happened so fast.” Mendoza reached for his gun, concerned about what was going to happen next. He thought either he was going to shoot Garcia or Garcia was going to shoot him. Mendoza “just reacted” and stood up also. Mendoza was standing when he fired the shots and Garcia was in front of him. The whole event took about 20 seconds. After Mendoza shot Garcia, Garcia exited the tattoo room putting something in his pocket and Mendoza followed behind him and ran out the front door. Mendoza went to his house. Mendoza admitted that once police contacted him, he was dishonest with them, explaining he had not slept for three days. On cross-examination, Mendoza admitted that in all the years he knew Garcia, Garcia never threatened to shoot or kill him. Garcia never generally threatened him, held a knife out, hit, pushed, or fought with him. They had a good relationship. 7  Mendoza carried a gun every day, typically in his waistband, and made it known to people that he carried one. He did not remember whether it was usually loaded, but on the day of the shooting, he had racked the gun and it had “one in the chamber.” He also carried an extra magazine in his pocket. The gun was not registered to him. Mendoza did not remember seeing a gun in the tattoo room on the day of the shooting. But he had been smoking methamphetamine for all three days and had not slept for that time. He admitted he was able to text and drive to Garcia’s house without incident. Before the shooting, Garcia accused Mendoza of “tripping” and “acting like weird, like off smoking meth and shit.” Garcia then stood up quickly and sounded angry. Mendoza took it as a challenge and was not going to back down. Mendoza stood up because he “thought something was going to happen.” He immediately reached for his gun and started firing at Garcia. They were standing close to each other face-to-face. Mendoza admitted he was angry in that moment. He had never been that angry in his life before. According to Mendoza, the methamphetamine and lack of sleep messed with his head, affected his judgment, and played a role in making him so angry. Mendoza did not show Garcia the gun, say anything to Garcia, or point the gun at Garcia’s knee or foot before shooting him. He testified he did not want to hurt Garcia, but he was not thinking straight that day. He was not thinking clearly because of his methamphetamine use and lack of sleep. He did not remember how many times he shot Garcia. Mendoza admitted that even though he was high, he knew what guns were for and knew they were dangerous. Defense Toxicologist Both Mendoza and Garcia had methamphetamine in their systems after the shooting. A defense toxicologist testified that methamphetamine 8 use can cause both physical and cognitive effects, impacting the ability to process information. Users could have impaired ability to form or rationalize thoughts, as well as altered perception. As a person uses more and more of the drug, they tend to stay awake for longer periods of time. A person experiencing sleeplessness as a result of methamphetamine use can have exacerbated cognitive effects. Closing Arguments During closing arguments, the prosecutor pointed out there were few factual disputes in the case: the killer’s identity was not at issue, and the number of casings found was not important, as the jury had Mendoza’s testimony about what had happened in Garcia’s house. He mentioned that four casings were found, and based on the pathologist’s testimony about Garcia’s wounds, there were five shots: “There are two through the chest, one through the arm that came out the back. That’s three. We have the one that arm, exit arm [sic] into his side and ends up in his buttocks. That’s four. And then we have the graze wound in the right shoulder. That’s five. [¶] Four casings, five gunshots.” (Italics added.) The prosecutor addressed self-defense and imperfect self-defense, telling the jury the defenses did not apply. As to self-defense, he said, “Let’s look at the facts as we know them. [Garcia] has never threatened, assaulted him before. Never pointed a gun, never held a knife, nothing. [¶] [Garcia] stood up. [Garcia] stood up and yelled at him. Maybe. Maybe. [¶] Never reached for anything. Never flinched, never feinted, never acted like he was going to do anything. [¶] He must reasonably believe that the immediate use of deadly force was necessary. . . . [¶] [Garcia] stood up. All he did was stand up. This is a man that he’s known for over a decade. No fights, nothing. This is a ridiculous claim for him to make. [¶] He used no more 9 force than reasonably necessary. He shot him five times, including in the back.” (Italics added.) The prosecutor then turned to imperfect self-defense. He told the jury that Mendoza’s belief in the need for self-defense could not be due to his own voluntary intoxication.2 He also stated, “This isn’t a stranger. This isn’t a road rage incident. In 10, 15, 20 years, however long they’ve known each other, nothing. Nothing. And yet he immediately reaches, immediately fires. [¶] Where does he shoot? They’re close, okay? Again, these are little pieces of evidence. Take it for what you will, all right? You’re close. It’s easy to hit someone. But all of them, all of them, center mass. Okay? They’re kill shots. He’s not so terrified he’s firing randomly, okay? He’s hitting them one after another right in [Garcia’s] chest, even the one in the back. Center mass. Even as [Garcia] ran and was trying to leave, escape danger.” (Italics added.) Defense counsel did not object to the prosecutor’s assertions about Mendoza shooting Garcia in the back, nor did he make any contrary argument to the jury. In his closing arguments, he conceded that the case was not about who killed Garcia. He told the jury he was not going to argue complete self-defense so that jurors should let Mendoza free, but wanted to focus on the prosecution’s burden. Defense counsel argued the prosecution had failed to meet its burden to prove first or second degree murder. He asked the jury to look at the dynamics of the tattoo room, the closeness of 2 The trial court instructed the jury with CALCRIM No. 625, which stated that voluntary intoxication could only be considered on intent to kill and premeditation and not for any other purpose. “CALCRIM No. 625 correctly permits the jury to consider evidence of voluntary intoxication on the question of whether defendant intended to kill but not on the question of whether he believed he needed to act in self-defense.” (People v. Soto (2018) 4 Cal.5th 968, 970, italics added.) 10 Mendoza’s and Garcia’s positions in it, and the evidence that Mendoza knew Garcia frequently had loaded guns. He stated: “Close proximity. In fact, if you look at where . . . Garcia was shot, there are two holes in his upper chest where he’s facing, potentially, Mr. Mendoza when the shots are being fired. And you heard the pathologist talk about the difference between entry wounds and exit wounds, and so we know that these two were entry wounds in the front. In the front.” Counsel discussed the immediacy of Mendoza’s act of shooting, and the fact Mendoza stated he was not paying attention to whether Garcia had a gun, as he just wanted to leave the room. He argued these actions showed Mendoza was afraid: “That is somebody who is in fear. That is evidence of an individual who is so scared of what just happened and reacted like that, running out the door. Even if you get shot in the back, potentially, on your way out, you just want to get the hell out of there. What happened, happened, now you’re just worried about getting out.” Ultimately, defense counsel argued the appropriate charge was voluntary manslaughter. In rebuttal, the prosecutor addressed the defense emphasis on voluntary manslaughter: “Now, I’m not going to talk about a whole lot of what we talked about this morning, but there was a lot of emphasis on this is a voluntary manslaughter. That shooting someone four to five times, including in the back, is a manslaughter. That’s what the defendant wants us to say. And that is not what the law says.” (Italics added.) Defense counsel again did not object to the prosecutor’s assertion about Mendoza shooting Garcia in the back. Jury Instructions, Deliberations and Verdict The court instructed the jury on self-defense and voluntary manslaughter based on imperfect self-defense. After several days of deliberations, the jury informed the court that it could not agree whether 11 Mendoza was guilty of first degree murder but that it had reached a decision about second degree murder. After the People dismissed the first degree murder allegation, the jury returned its guilty verdict on second degree murder and the true finding on the gun allegation. DISCUSSION I. Prosecutorial Misconduct Mendoza contends the prosecutor committed prejudicial misconduct by arguing facts not in evidence during closing argument, that is, by stating that Mendoza shot Garcia in the back as Garcia ran away and tried to leave the room. Apparently without appreciating that there were two gunshot wounds to the back, Mendoza maintains the uncontradicted evidence was that the gunshot wound to the back was an exit wound, not an entrance wound. Mendoza acknowledges his counsel did not object to the prosecutor’s statements but argues we should reach the merits (1) by exercising our discretion to do so, and (2) to forestall a claim of ineffective assistance of counsel. Alternatively, he maintains his counsel’s failure to object deprived him of his Sixth Amendment right to effective counsel. As Mendoza implicitly acknowledges, his counsel forfeited any claim of prosecutorial misconduct by failing to timely and specifically object to the prosecutor’s arguments and ask for a jury admonishment. To preserve a claim of prosecutorial misconduct on appeal, a criminal defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the impropriety. (People v. Fayed (2020) 9 Cal.5th 147, 204 (Fayed); People v. Covarrubias (2016) 1 Cal.5th 838, 893–894.) “ ‘The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an 12 opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.’ ” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328.) We decline Mendoza’s invitation to exercise our discretion to overlook the forfeiture. Doing so in these circumstances “would allow a defendant to invalidate an entire trial based on a claim of prosecutorial misconduct that could have been easily remedied by a timely objection and an admonition.” (People v. Potts (2019) 6 Cal.5th 1012, 1036 [declining “to excuse the forfeiture as a matter of discretion”].) A timely objection would also have allowed the prosecutor to clarify that he was referring to the gunshot graze wound to the upper right back, not the exit wound, and to explain in greater detail why he believed it was reasonable to infer that Garcia was trying to leave the room when the graze wound was inflicted. Because the claim of prosecutorial misconduct is forfeited, we must decide whether defense counsel provided ineffective assistance of counsel by failing to object. II. Ineffective Assistance of Counsel A. Legal Principles To establish ineffective assistance of counsel, a defendant must show that (1) the “representation fell below an objective standard of reasonableness under prevailing professional norms,” and (2) counsel’s deficient performance was prejudicial—i.e., there is a reasonable probability that, absent counsel’s failings, the result would have been more favorable to the defendant. (People v. Scott (1997) 15 Cal.4th 1188, 1211 (Scott); see also Strickland v. Washington (1984) 466 U.S. 668, 693–694.) It is “particularly difficult to establish ineffective assistance of counsel on direct appeal, where we are limited to evaluating the appellate record. If the record does not shed light on why counsel acted or failed to act in the 13 challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.” (Scott, supra, 15 Cal.4th at p. 1212; see also People v. Bradford (1997) 14 Cal.4th 1005, 1052 (Bradford) [reviewing court will find ineffective assistance of counsel “only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission” (internal quotation marks omitted)]; People v. Mayfield (1993) 5 Cal.4th 142, 188 [“tactical choices presented . . . on a silent record . . . are better evaluated by way of a petition for writ of habeas corpus, and on direct appeal we reject them”].) The California Supreme Court has “noted on countless occasions [that] the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one,” and it has expressed reluctance “to second-guess defense counsel’s apparent decision not to object.” (People v. Padilla (1995) 11 Cal.4th 891, 942; accord People v. Aguirre (2025) 18 Cal.5th 629, 707 (Aguirre).) A decision not to object to statements made in the prosecutor’s closing argument “ ‘ “seldom establishes counsel’s incompetence.” ’ ” (Aguirre, at p. 707.) As the Supreme Court has explained, “there may be valid reasons why counsel may choose not to make even a meritorious objection.” (Ibid.) “ ‘From a strategic perspective, . . . many trial lawyers refrain from objecting during closing argument to all but the most egregious misstatements by opposing counsel on the theory that the jury may construe their objections to be a sign of desperation or hyper-technicality.’ [Citation.] Other tactical reasons to refrain from raising even valid claims of error in the presentation of argument can include the interest in not drawing additional attention to, or inviting elaboration on, comments made by opposing counsel . . . .” (Ibid.) 14 On the other hand, prosecutorial “error in the presentation of argument may be so apparent and impactful absent corrective measures as to render a failure to object ineffective assistance.” (Ibid.) “ ‘ “A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] In other words, the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ ” (People v. Covarrubias, supra, 1 Cal.5th at p. 894; see also People v. Nadey (2024) 16 Cal.5th 102, 156 (Nadey).) With respect to closing argument, “the prosecution is given wide latitude to make ‘ “fair comment on the evidence, including reasonable inferences or deductions to be drawn from it.” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 72 (Parker); see also People v. Barrett (2025) 17 Cal.5th 897, 1035.) But it is misconduct for a prosecutor to state facts not in evidence or mischaracterize the evidence. (Nadey, supra, 16 Cal.5th at p. 188; Fayed, supra, 9 Cal.5th at p. 204; People v. Thomas (2011) 51 Cal.4th 449, 494; People v. Collins (2010) 49 Cal.4th 175, 209; People v. Hill (1998) 17 Cal.4th 800, 823.) In determining whether a prosecutor has misstated the facts or mischaracterized the evidence, “we must view the statements in the context of the argument as a whole.” (People v. Dennis (1998) 17 Cal.4th 468, 522.) B. The Record on Appeal Does Not Establish Ineffective Assistance of Counsel We conclude defense counsel did not provide ineffective assistance of counsel by failing to object to the prosecutor’s statements that Mendoza shot 15 Garcia in the back and that he did so while Garcia ran away and was trying to leave the room. The record on appeal is silent as to the reasons why defense counsel did not object, and this is not a situation in which there could be no rational tactical reason. As we explain below, defense counsel could reasonably have concluded that the prosecutor was referring to the gunshot graze wound to Garcia’s upper right back, not the exit wound, and that these statements were proper given the prosecutor’s wide latitude to make fair comment on the evidence, including reasonable inferences or deductions to be drawn from it. (Parker, supra, 13 Cal.5th at p. 72.) Alternatively, defense counsel could have made a tactical decision that objecting would only have caused the prosecutor to clarify and elaborate on his argument that Mendoza continued to shoot even after Garcia turned to flee. As discussed, Garcia sustained two gunshot wounds to the back: the exit wound for the bullet that entered his left shoulder and the graze wound to the upper right back. Mendoza concedes that “the prosecutor correctly described the gunshot wounds” at the beginning of his closing argument. Specifically, the prosecutor described the gunshot “through the arm that came out the back” as well as “the graze wound in the right shoulder.” (Italics added.) Mendoza nevertheless contends the prosecutor committed misconduct by arguing twice in his initial closing argument and once in rebuttal that Mendoza shot Garcia “in the back” and by stating on the second of these occasions that Mendoza did so “as [Garcia] ran and was trying to leave, escape danger.” According to Mendoza, this was misconduct because the evidence was undisputed that the gunshot wound to the back was an exit wound. 16  In making this argument, however, Mendoza fails to account for the graze wound to the upper right back. The evidence established that this was a gunshot wound and that it hit Garcia in the back. Defense counsel could reasonably have concluded that the prosecutor’s description of this wound as a shot “in the back” did not transgress the wide latitude a prosecutor has to comment on the evidence. Because the prosecutor had accurately described the exit wound as a shot “that came out the back”, the jurors presumably would have understood the prosecutor was referring to the other graze wound as the shot “in the back.” By the time of closing arguments, the jurors had already seen Exhibit 81, the photo depicting both gunshot wounds to the back, and heard the pathologist’s testimony describing these wounds. Based on the trial evidence and the prosecutor’s accurate description of the five gunshot wounds at the beginning of his closing argument, it is implausible that the jurors would have believed the prosecutor was referring to the exit wound as an entry wound. In his briefing, Mendoza mentions the graze wound but does not acknowledge that it was to the back or explain why the prosecutor committed misconduct by describing it as a shot in the back.3 Moreover, the evidence also supported a reasonable inference that Mendoza inflicted this graze wound to the back as Garcia was trying to flee the room. According to Mendoza, he and Garcia were standing close to each other face-to-face when he started shooting. Garcia was directly in front of Mendoza. Most of the gunshots entered the front of Garcia’s upper body. At some point, however, Garcia turned to run out of the room. Mendoza remembered Garcia turning but could not recall whether he kept shooting. 3 In fairness, the People’s respondent’s brief also does not mention that the graze wound was to the back. 17 From this evidence, the jury could reasonably infer that Mendoza did fire another shot and inflicted the gunshot graze wound to Garcia’s upper right back as Garcia was turning to flee or running away. Because this was at least a plausible inference, the prosecutor did not commit misconduct by arguing that Mendoza shot Garcia in the back “as [Garcia] ran and was trying to leave, escape danger.” “ ‘Whether the inferences drawn by the prosecutor were reasonable was a question for the jury to decide.’ ” (Nadey, supra, 16 Cal.5th at p. 160.) For these reasons, we conclude Mendoza has failed to satisfy the deficient performance prong of the Strickland standard. Defense counsel could reasonably have concluded either that there was no prosecutorial misconduct or that objecting would only have caused the prosecutor to elaborate on the gunshot graze wound to the back and draw additional attention to the evidence that Mendoza kept firing even after Garcia tried to flee. (See People v. Fosselman (1983) 33 Cal.3d 572, 582 [defense counsel “may have believed that individual objections would have exacerbated the problem by affording the prosecutor an opportunity to elaborate and explain his comments”].) Because “the record on appeal” is silent as to defense counsel’s reasons for failing to object, and does not “affirmatively disclose[] that counsel had no rational tactical purpose” for the omission (Bradford, supra, 14 Cal.4th at p. 1052), we must reject Mendoza’s ineffective assistance claim. 18  DISPOSITION The judgment is affirmed. BUCHANAN, J. WE CONCUR: MCCONNELL, P. J. O’ROURKE, J. 19