People v. Pugh CA5

Filed 11/2/26 P. v. Pugh CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F089402 Plaintiff and Respondent, (Super. Ct. No. DF017261A) v. JONATHAN PUGH, OPINION Defendant and Appellant. APPEAL from a judgment of the Superior Court of Kern County. Tiffany E. Organ-Bowles, Judge. Jeffrey R. Wood, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Kimberley A. Donohue, Assistant Attorney General, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-  Appellant Johnathan Pugh was convicted by jury of assault with a deadly weapon while confined (Pen. Code,1 § 4501, subd. (a)); assault by means of force likely to cause great bodily injury while confined (§ 4501, subd. (b)); and one count of possession of a weapon while confined (§ 4502, subd. (a)). Pugh was sentenced to a total prison term of 14 years and four months. He raises two claims on appeal. First, the trial court erred by instructing the jury with CALCRIM NO. 332, the instruction pertaining to evaluating expert witness testimony, because none of the prosecution’s witnesses testified as experts. Specifically, he argues that two witnesses who opined that the victim’s injuries and Pugh’s movements during the assault were consistent with the use of an inmate-manufactured weapon, were not qualified to offer expert opinions, and the instruction should therefore not have been given. Second, the prosecutor erred by improperly elevating one of the witnesses to expert status during closing argument. We affirm. FACTUAL AND PROCEDURAL HISTORY On January 9, 2025, the Kern County District Attorney filed an amended information charging Pugh with assault with a deadly weapon while confined (§ 4501, subd. (a)); assault by means of force likely to cause great bodily injury while confined (§ 4501, subd. (b)); and one count of possession of a weapon while confined (§ 4502, subd. (a)). The information further alleged that Pugh had two prior strike convictions (§§ 667, subds. (c)–(j), 1170.12, subds. (a)–(e)) and a prior serious felony conviction (§ 667, subd. (a)). On January 17, 2025, the jury found Pugh guilty as charged. In a bifurcated proceeding, the jury found true the prior conviction allegations. 1 All further undefined statutory citations are to the Penal Code unless otherwise indicated. 2.  On February 20, 2025, the trial court sentenced Pugh to a total term of 14 years and four months in state prison, including one year and four months for a separate charge of possession of drugs or alcohol in confinement (§ 4573.8). Pugh filed a timely notice of appeal. The Underlying Conviction At approximately 6:50 p.m. on June 6, 2022, at the Kern Valley State Prison, correctional officers were releasing inmates for their recreation time when Pugh, an inmate, began attacking another inmate, L.T. Correctional Officer Sean Johnson activated his personal alarm, yelled “get down,” and waited for additional officers to respond. Both inmates ignored officers’ repeated commands to stop fighting and get down. Correctional Officer Oliver Luna, who was in the control room, fired a nonlethal round to stop the fight. Luna targeted Pugh because Pugh was on top of L.T. and appeared to have L.T. in a headlock. The round had no apparent effect. Approximately one minute and 20 seconds after the fight began, Officer Johnson and Correctional Officer Johnny Rodriguez arrived at the upper tier where the fight was occurring. As the officers reached the upper tier, another nonlethal round was fired, again without effect. Officer Rodriguez sprayed Pugh and L.T. with pepper spray, causing them to briefly stop fighting. When the inmates resumed fighting, Rodriguez sprayed L.T. with pepper spray, causing L.T. to get down, while Pugh went down the stairs. The entire incident lasted approximately two minutes “and some change.” During the fight, Officers Rodriguez and Luna did not see anything in Pugh’s hands, and neither officer saw Pugh discard anything. Following the incident, officers recovered an inmate-manufactured weapon at the scene. The weapon was described as plastic with a metal tip, with a shoelace and/or 3. white cloth attached to the weapon so it could be secured to the wrist. There was blood on the shoelace/white cloth. Pugh complained of pain from the pepper spray and had a laceration with dried blood on his left hand. However, the wound did not require stitches. L.T. was “agitated and upset” and declined to speak with investigating officers regarding the incident. L.T. sustained a puncture wound to the chest, lacerations to his left shoulder and both sides of his upper back, and a scratch to the right side of his mouth. Based on L.T.’s injuries, Licensed Vocational Nurse Jennifer Sailors recommended that L.T. receive medical treatment outside the prison. L.T. refused. Sailors had worked for the prison for approximately nine and a half years and had seen wounds consistent with injuries from inmate-manufactured weapons well over 100 times. She opined that L.T.’s wounds were consistent with injuries caused by an inmate- manufactured weapon.2 Richard Hunt had worked as a correctional officer for eight years and was a member of the prison’s “Investigative Services Unit” (ISU), which investigates incidents such as overdoses, attempted murders, homicides, and illicit activities. Hunt had observed more than 100 assaults involving inmate-manufactured weapons. After watching a video recording of the incident, Hunt opined that Pugh’s movements included stabbing motions consistent with the use of an inmate-manufactured weapon. Although the weapon itself was not visible in the video, Hunt testified, “on my training and experience, I can say that there was a weapon being used.” Hunt had previously testified concerning the use of inmate-manufactured weapons, although he had not been qualified as an expert. He did not have a degree in 2 Trial counsel objected on the grounds of “foundation” and “speculation.” However, counsel’s objection was overruled. 4. forensics, had not read materials concerning the use of inmate-manufactured weapons, and had not taught classes on their use. Sean Johnson, who had worked as a correctional officer for 20 years and had observed more than 10 incidents involving the use of inmate-manufactured weapons, offered a different assessment of L.T.’s injuries. Johnson testified that the injuries did not appear to have been caused by an inmate-manufactured weapon, explaining, “It could have been fingernail scrapes or anything.” However, in an incident report authored by Johnson, Johnson stated that L.T.’s injuries were consistent with being inflicted by an inmate-manufactured weapon. Johnson testified that an inmate could sustain only minor injuries from an attack with such a weapon, but that in at least 80 percent of such incidents the victim sustains serious injuries requiring medical attention, including stitches, significant blood loss, or an object becoming embedded in the body. DISCUSSION I. CALCRIM No. 332 Pugh contends the trial court erred by instructing the jury with CALCRIM No. 332, the instruction on expert witness testimony, because neither Officer Hunt nor Nurse Sailors were qualified as experts. He further contends that neither Hunt nor Sailors possessed the special knowledge, skill, experience, training, or education necessary to qualify as an expert. With respect to the challenged instruction, Pugh acknowledges that trial counsel failed to object below but submits that an objection was not required because the error affected his substantial rights. He alternatively contends trial counsel rendered ineffective assistance of counsel for failing to preserve his claim of error. We conclude the instructional error alleged did not affect Pugh’s substantial rights and the claim is therefore forfeited. We further conclude that Pugh’s underlying challenge to Sailors’s qualifications fails on the merits, and that his challenge to Hunt’s 5. qualifications is forfeited. Finally, his alternative claim of ineffective assistance of counsel fails for lack of prejudice. A. Background At trial, the jury was instructed with CALCRIM No. 333, which addresses the opinion testimony of lay witnesses, and CALCRIM No. 332, which addresses the opinion testimony of experts. With respect to CALCRIM No. 332, the court instructed the jury as follows: “THE COURT: Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. “Witnesses who were not testifying as experts gave their opinions during the trial. You may, but are not required to, accept those opinion as true or correct. You may give the opinions whatever weight you think appropriate. Consider the extent of the witness’ opportunity to perceive the matters on which his or her opinion is based. The reasons the witness gave for any opinion, and the facts or information on which the witness relied in forming that opinion. “You must decide whether information on which the witness relied was true and accurate. You may disregard all or any part of an opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” Jury deliberations in Pugh’s trial began on January 17, 2025, at approximately 9:03 a.m. At 1:57 p.m. that same day, the jury sent the court the following question: 6.  “The jury is mixed in regards to whether the prisoner manufactured weapon is a deadly weapon. We are asking for further clarification/assistance. “Clarification on inherently dangerous. “Whether punches could cause great bodily injury. “Some jurors are also requesting to see the prisoner manufactured weapon again.” The court responded with additional language from CALCRIM No. 2721, defining an inherently deadly weapon. At 3:52 p.m. that same day, approximately six hours and 49 minutes after deliberations began, the jury reached its verdict. B. Relevant Law “Opinion testimony is generally inadmissible at trial. [Citations.] Two exceptions to this rule exist. First, a properly qualified expert, with ‘special knowledge, skill, experience, training [or] education’ may provide an opinion. (Evid. Code, § 801, subd. (b).) The subject matter of such an opinion is limited to ‘a subject that is sufficiently beyond common experience that [it] would assist the trier of fact.’ (Id., subd. (a).)” (People v. Chapple (2006) 138 Cal.App.4th 540, 546.) Second, “[l]ay opinion is also admissible, but it plays a very different role than expert opinion and is subject to different rules of admissibility.” (Id. at p. 547.) “A ‘ “lay witness may offer opinion testimony if it is rationally based on the witness’s perception and helpful to a clear understanding of the witness’s testimony.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 231, quoting People v. Leon (2015) 61 Cal.4th 569, 601.) However, “ ‘ “when a lay witness offers an opinion that goes beyond the facts the witness personally observed, it is held inadmissible.” ’ ” (Dalton, at p. 231; quoting People v. Jones (2017) 3 Cal.5th 583, 602; see People v. DeHoyos (2013) 57 Cal.4th 79, 131 [“Matters that go beyond common experience and require particular scientific 7. knowledge may not properly be the subject of lay opinion testimony.”]; Evid. Code, §§ 702, subd. (a), 800.) C. Forfeiture of the Instructional Claim “[A] party who acquiesces in the giving of a jury instruction may not later appeal the giving of that instruction.” (Green v. Healthcare Services, Inc. (2021) 68 Cal.App.5th 407, 419.) “ ‘The objection requirement is necessary in criminal cases because a “contrary rule would deprive the People of the opportunity to cure the defect at trial and would ‘permit the defendant to gamble on an acquittal at his [or her] trial secure in the knowledge that a conviction would be reversed on appeal.’ ” ’ ” (People v. Myles (2021) 69 Cal.App.5th 688, 696, quoting People v. Partida (2005) 37 Cal.4th 428, 434.) Pugh maintains that no objection was required because the instructional error asserted affected his substantial rights. (People v. Mitchell (2019) 7 Cal.5th 561, 579 [the “failure to object to instructional error will not result in forfeiture if the substantial rights of the defendant are affected”]; see § 1259.) An instructional error affects a defendant’s substantial rights, however, only if the error was prejudicial under the applicable standard for determining harmless error. (People v. Franco (2009) 180 Cal.App.4th 713, 720; People v. Felix (2008) 160 Cal.App.4th 849, 857; People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) The applicable test for prejudice is the standard articulated in People v. Watson (1956) 46 Cal.2d 818, which asks whether the record establishes a reasonable probability that the error affected the outcome. (Id. at p. 836; see People v. Felix, supra, 160 Cal.App.4th at p. 857.) We reach this conclusion for two reasons. First, an instruction which correctly states the law yet has no application to the facts of a case is an error of state law. (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) That is the nature of the alleged error here. Second, CALCRIM No. 332 implements section 1127b, which is a state-law evidentiary provision, rather than a constitutional right. Accordingly, any error in giving the challenged instruction is subject to the Watson standard. 8.  We conclude that the record fails to support Pugh’s assertion that the alleged instructional error affected his substantial rights. As discussed below, CALCRIM No. 332 did not address any element of the charged offenses or alter the prosecution’s burden of proof, nor did it require the jury to accept Hunt’s or Sailors’s opinions. The instruction instead advised the jury that it could disregard any opinion it found unbelievable, unreasonable, or unsupported by the evidence. Accordingly, because the alleged instructional error did not affect Pugh’s substantial rights, we find his claim forfeited. We address his alternative claim of ineffective assistance of counsel in Part I.F below. D. Pugh’s Challenge to Hunt’s and Sailors’s Qualifications Pugh’s challenge to CALCRIM No. 332 also rests on a separate premise: that Hunt and Sailors were not qualified to offer the opinions to which the instruction applied. The preservation of this underlying claim differs as to the two witnesses: 1. Hunt As to Hunt, we conclude that Pugh’s claim is forfeited. Trial counsel did not object to Hunt’s opinion testimony. Pugh contends that he did not have the opportunity to object because neither Hunt nor Sailors were presented as an expert witness. The record does not support that contention. The relevant question is not whether the witnesses were formally designated as experts, but whether counsel objected when they offered opinions that Pugh now claims required expert qualification. Counsel knew that Hunt was offering an opinion concerning whether Pugh’s movements were consistent with the use of an inmate-manufactured weapon. If counsel believed Hunt’s opinion required expert qualification, he could have objected on that ground when the opinion was offered and asked the court to determine whether Hunt was qualified to testify as an expert. The fact that Hunt was not expressly presented as an expert did not prevent counsel from making such an objection. 9.  Based on the foregoing, we conclude that Pugh has forfeited his challenge to the admissibility of Hunt’s challenged opinion testimony. (People v. Dowl (2013) 57 Cal.4th 1079, 1087 [“a defendant who fails at trial to object that a witness lacks the qualifications to render an expert opinion may not on appeal contest the opinion’s admissibility”].) We therefore address Pugh’s challenge to Hunt’s qualifications in the context of his ineffective assistance of counsel claim. 2. Sailors With respect to Sailors, trial counsel did object to her challenged testimony on foundational grounds. Although counsel did not specifically identify Sailors’s qualifications to offer an expert opinion as the basis for the objection, we will presume the foundation objection was nonetheless sufficient to preserve the admissibility of her challenged opinion.3 We therefore consider Pugh’s challenge to Sailors’ qualification on the merits. E. Sailors Was Qualified to Offer the Challenged Opinion Testimony Pugh contends that Sailors was not qualified to offer an expert opinion concerning whether L.T.’s injuries were consistent with an inmate-manufactured weapon. We disagree. Evidence Code section 720 provides that an expert may testify “if [they] ha[ve] special knowledge, skill, experience, training, or education sufficient to qualify [them],” 3 There is a split authority concerning whether an objection on the ground of lack of foundation is sufficiently specific to preserver a challenge a witness’s qualifications to testify as an expert. (Compare People v. Roberts (1992) 2 Cal.4th 271, 298 [finding a defendant who objected to expert testimony based on a “lack of foundation” had “never sought to challenge the witnesses’ qualifications as experts”] with Lemley v. Doak Gas Engine Co. (1919) 40 Cal.App. 146, 154–155 [stating, in a denial for a petition for rehearing, that a lack of foundation objection “fairly presented the question of the sufficiency of the evidence as to the expert qualifications of the witness”].) We will presume, without deciding, that the foundational objection here was sufficiently specific to preserve Pugh’s challenge to Sailors’s qualifications. 10. which “may be shown by any otherwise admissible evidence, including [their] own testimony.” (Id., subds. (a)–(b); People v. Townsel (2016) 63 Cal.4th 25, 45; People v. Dowl, supra, 57 Cal.4th at p. 1088.) “Whether a person qualifies as an expert in a particular case[] … depends upon the facts of the case and the witness’s qualifications.” (People v. Bloyd (1987) 43 Cal.3d 333, 357.) In this regard, “[t]he trial court is given considerable latitude in determining the qualifications of an expert.” (Ibid.; see People v. Morganti (1996) 43 Cal.App.4th 643, 661 [trial court enjoys wide discretion when ruling on issues of relevance and expert qualifications]; People v. Farnam (2002) 28 Cal.4th 107, 162 [“Error regarding a witness’s qualifications as an expert will be found only if the evidence shows that the witness ‘ “ ‘clearly lacks qualification as an expert’ ” ’ ”].) “When a preliminary showing is made that the proposed witness has sufficient knowledge to qualify as an expert under the Evidence Code, questions about the depth or scope of his or her knowledge or experience go to the weight, not the admissibility, of the witness’s testimony.” (People v. Jones (2013) 57 Cal.4th 899, 949–950.) Sailors had substantial experience directly relevant to the opinion she offered. She was a licensed vocational nurse for over 10 years and had been employed at the prison for nine and a half years. She testified that she had seen injuries consistent with inmate- manufactured weapons “[p]robably well over a hundred” times. Her professional training as a nurse, combined with her extensive experience treating and observing injuries in a prison setting, provided her with specialized knowledge concerning the characteristics of injuries caused by inmate-manufactured weapons that was beyond the common experience of the ordinary juror. Pugh disputes the extent of Sailors’s knowledge and experience concerning inmate-manufactured weapons, pointing out that “she had never testified as an expert on wounds caused by inmate weapons, never taught any classes on the subject, nor had she authored any materials about it.” However, those considerations go to the weight of her testimony rather than her qualification to offer it. (People v. Jones, supra, 57 Cal.4th at 11. pp. 949–950.) On this record, Sailors did not “clearly lack[] qualification” to offer the challenged opinion. (People v. Farnam, supra, 28 Cal.4th at p. 162.) Accordingly, the record does not support Pugh’s claim that Sailors lacked the qualifications necessary to offer the challenged opinion. Because Sailors was qualified to offer the opinion, her testimony provides no basis for concluding that CALCRIM No. 332 was improperly given. F. Ineffective Assistance of Counsel The federal and California Constitutions guarantee criminal defendants the right to adequate representation by counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Anderson (2015) 234 Cal.App.4th 1411, 1416.) To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland); People v. Centeno (2014) 60 Cal.4th 659, 674.) To establish the first Strickland prong, a defendant must show that counsel’s performance “ ‘ “ ‘ “fell below an objective standard of reasonableness under prevailing professional norms.” ’ ” ’ ” (People v. Barrett (2025) 17 Cal.5th 897, 969.) In evaluating this prong, “ ‘a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.’ ” (Id. at pp. 1013–1014.) To establish the second Strickland prong, a defendant must demonstrate “ ‘resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.’ ” (People v. Jasso (2025) 17 Cal.5th 646, 675.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) “A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation.’ ” (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.) 12.  As “[t]he object of an ineffectiveness claim is not to grade counsel’s performance,” where possible, it is preferable “to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice” without addressing whether counsel’s performance fell below an objective standard of reasonableness. (Strickland, supra, 466 U.S. at p. 697.) We conclude the record fails to support Pugh’s claim of ineffective assistance of counsel. Pugh has not established a reasonable probability of a more favorable outcome either from the exclusion of Hunt’s opinion testimony or the absence of CALCRIM No. 332. (Strickland, supra, 466 U.S. at p. 694.) Assuming counsel had objected to Hunt’s opinion testimony, we are not persuaded that his testimony necessarily would have been excluded. On the contrary, the record provides a substantial basis for concluding that Hunt could have qualified as an expert, thereby supporting the trial court’s instruction on CALCRIM No. 332. The record shows Hunt had worked as a correctional officer for eight years, and worked with the ISU, which investigated incidents in the prison, including: murders, attempted murders, and stabbing assaults. He had seen incidents in which one person had assaulted another with an inmate-manufactured weapon over 100 times. Officer Hunt’s eight years as a correctional officer, specialized experience investigating serious incidents in a state prison, and repeated exposure to assaults involving inmate-manufactured weapons provided him with knowledge and experience beyond that of the ordinary juror concerning such weapons and the circumstances in which they are used. (Evid. Code, § 801, subds. (a) & (b) [An expert witness’s opinion must relate to a subject that is beyond common experience and be based on matter perceived or personally known that reasonably may be relied upon to form an expert opinion].) Accordingly, Hunt’s experience provided a sufficient basis for him to offer an expert opinion on whether Pugh’s movements were consistent with the use of an inmate-manufactured weapon. 13.  Pugh nevertheless maintains that Hunt lacked the formal credentials and qualifications necessary to qualify as an expert. But an expert need not possess a particular degree, certification, or other formal credential. Rather, a witness may qualify as an expert based on his or her “special knowledge, skill, experience, training, or education.” (Evid. Code, § 720, subd. (a).) Thus, even if Hunt lacked formal credentials in his field, his substantial experience investigating prison assaults and encountering inmate-manufactured weapons could have supported his qualification as an expert. Further, the fact that Hunt was not formally qualified as an expert before testifying does not alone establish prejudice. The pertinent question for purposes of Pugh’s ineffective assistance of counsel claim is whether an objection necessarily would have resulted in the exclusion of the challenged opinion. On this record, we find that it would not. With respect to Pugh’s claim of instructional error, we further conclude that he has not shown a reasonable probability that the trial court’s instruction under CALCRIM No. 332 affected the verdict. The instruction did not address any element of the charged offenses or alter the prosecution’s burden of proof. Nor did it direct the jury to accept Hunt’s or Sailors’s opinions as an uncontested basis for finding that L.T. had been injured with an inmate-manufactured weapon. Instead, the instruction informed the jury that it was not required to accept expert opinions as true or correct, that it could disregard opinions it found unbelievable, unreasonable, or unsupported, and that it should consider the witness’s knowledge, skill, experience, training, education, and the reasons and information underlying the opinion. (CALCRIM No. 332.) The record also does not show that the jury was presented with Hunt’s and Sailors’s opinions as an uncontested basis for finding that L.T. had been injured with an inmate-manufactured weapon. Rather, the jury heard testimony from Officer Johnson that L.T.’s injuries could have resulted from something other than an inmate- manufactured weapon, including fingernail scrapes. Thus, the jury was presented with 14. competing evidence concerning the very proposition about which Hunt and Sailors testified. Contrary to Pugh’s assertion, the jury’s question during deliberations likewise does not establish prejudice. The jury asked for clarification concerning whether the inmate-manufactured weapon was a deadly weapon, whether punches could cause great bodily injury, and requested to see the weapon again. Those questions demonstrate that the jury considered the nature and use of the weapon, but they do not show that the jury accepted Hunt’s or Sailors’s opinions because of CALCRIM No. 332. Indeed, the questions demonstrate that the jury was independently evaluating the evidence relevant to the charged offenses. Accordingly, even assuming trial counsel performed deficiently by failing to object to the challenged opinion testimony, or to the giving of CALCRIM No. 332, Pugh has not demonstrated a reasonable probability that the result of the proceeding would have been different had counsel objected. The record supports the conclusion that both Hunt and Sailors possessed sufficient relevant experience that their opinions could have been admitted as expert testimony, and the instruction itself did not shift the burden of proof or compel the jury to accept those opinions. Pugh’s claim therefore rests on speculation rather than a demonstrable probability of a different outcome. (People v. Fairbank, supra, 16 Cal.4th at p. 1241 [“A defendant must prove prejudice that is a ‘ “demonstrable reality,” not simply speculation’ ” ].) Because he has failed to establish prejudice, his ineffective assistance of counsel claim fails. II. PROSECUTORIAL ERROR Pugh argues the prosecutor committed error when he “elevated Officer Hunt to that of an expert, when his qualifications and area of expertise did not meet even the bare qualifications in relation to the underlying facts.” We again find Pugh’s claim of error forfeited based on counsel’s failure to object. We further conclude that Pugh’s ineffective assistance of counsel claim likewise fails for lack of prejudice. 15.  A. Background At the close of evidence, the jury was instructed with CALCRIM No. 222, under which the court informed the jury: “[THE TRIAL COURT]: Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence. Nothing that the attorneys say is evidence. In their opening statements and closing arguments the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witness’ answers are evidence. The attorneys’ questions are significant only if they help you to understand the witness’ answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true.” During his comments in closing argument, the prosecutor made the following remarks concerning Officer Hunt’s testimony: “[THE PROSECUTOR]: And you also heard from Officer Richard Hunt, ISU Officer Richard Hunt, who has investigated numerous homicides, attempted murder, testified as an expert to what was going on, what his opinion was. Also retrieved that weapon, inmate- manufactured weapon. He showed us what it was. “Testimony from Officer Gustavo Lopez, People’s Investigating Officer, who took all of the photographs. Also told us a little bit about the use of force, and in which manner they use and apply certain levels of caution or care or apply certain levels of use of force in order to diffuse the situation. “Also, very importantly, testimony from Nurse Jennifer Sailors. She’s treated hundreds, hundreds of patients, similar wounds. Was able to tell how this was sustained, the wounds were sustained, consistent with inmate-manufactured weapon.” Subsequently, the prosecutor stated: “[THE PROSECUTOR]: And all the officers, even the nurse, which is highly trained in this matter, treats inmates for similar wounds every day, that is what can happen with that inmate-manufactured weapon. 16.  “Puncture wounds, consistent. Lacerations, consistent. Stab wounds, consistent. And also in [the] worst-case scenario, people are sliced open. They have removed those inmate-manufactured weapons from people’s body parts. And it is very critical in order to determine Count 1, the testimony from Richard Hunt, ISU Officer Richard Hunt and Nurse Jennifer Sailors. She even stated if used properly, can cause severe injuries.” In rebuttal, trial counsel challenged Hunt’s qualifications, observing that Hunt had never testified as an expert concerning inmate-manufactured weapons, had not written or taught about the subject, had not taught at the academy, and had no degree in forensics. Counsel then reminded the jury that under CALCRIM No. 332, it was not bound by the opinion of “somebody who is supposedly an expert.” B. Prosecutorial Error The standards for establishing prosecutorial misconduct or error are well established. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1275.) A prosecutor violates the federal Constitution when their conduct reflects a pattern of serious and egregious behavior that renders the trial fundamentally unfair and infringes upon the defendant’s right to due process. (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.) To rise to the level of a federal violation, “the misconduct must be ‘of sufficient significance to result in the denial of the defendant’s right to a fair trial.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1202, quoting United States v. Agurs (1976) 427 U.S. 97, 108.) However, even if the conduct does not violate constitutional standards, a prosecutor’s remarks may still contravene state law if they involve “deceptive or reprehensible methods to persuade the court or jury.” (People v. Watkins (2012) 55 Cal.4th 999, 1031; accord, Daveggio and Michaud, at p. 854.) When challenging a prosecutor’s remarks to the jury, the defendant must demonstrate that, “ ‘[i]n the context of the whole argument and the instructions,’ [citation] there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.’ ” (People v. Centeno, 17. supra, 60 Cal.4th at p. 667.) “If the challenged comments, viewed in context, ‘would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ” (People v. Cortez (2016) 63 Cal.4th 101, 130.) In conducting this analysis, courts “ ‘ “do not lightly infer” ’ ” that the jury adopted the most damaging interpretation of the prosecutor’s comments. (Centeno, supra, at p. 667.) C. Forfeiture/Futility Pugh acknowledges that his trial counsel failed to object to the prosecutor’s challenged comments. As a general rule, failure to object forfeits a claim of prosecutorial error. (People v. Lund (2021) 64 Cal.App.5th 1119, 1145.) “ ‘ “[O]nly if an admonition would not have cured the harm is the claim of misconduct preserved for review.” ’ ” (Ibid., citing People v. Friend (2009) 47 Cal.4th 1, 29.) Pugh asserts that any objection would have been futile because the trial court had already finalized the jury instructions. (People v. Anderson (2001) 25 Cal.4th 543, 587 [“Counsel is not required to proffer futile objections”].) We are not persuaded. Pugh identifies no authority establishing that finalizing the jury instructions precluded the court from addressing an improper closing argument. An objection would have permitted the court to determine whether the prosecutor’s characterization was improper and, if warranted, admonish the jury that counsel’s arguments are not evidence. Nothing in the record establishes that such relief would have been unavailable. Accordingly, we conclude that counsel’s failure to object forfeits Pugh’s claim of prosecutorial error. D. Analysis Even assuming the prosecutor erred by referring to Hunt as having “testified as an expert,” Pugh has not demonstrated prejudicial error under either the state or federal standard. The prosecutor’s characterization must be considered in the context of the entire argument and the jury instructions. The jury had been instructed that counsel’s statements were not evidence and that it was the jury’s responsibility to determine the 18. facts. (See CALCRIM No. 222.) CALCRIM No. 222 specifically informed the jury that evidence consisted of sworn testimony and admitted exhibits, not the attorney’s arguments. Thus, the prosecutor’s characterization could not reasonably have transformed his closing-argument description into evidence of Hunt’s qualifications or otherwise compelled the jury to accept Hunt’s opinion. Moreover, the record does not suggest that the jury treated Hunt’s testimony as dispositive because the prosecutor called him an expert. The jury heard substantial evidence bearing on whether an inmate-manufactured weapon was used during the assault. Several officers testified that they did not see a weapon in Pugh’s hands, and Officer Johnson testified that L.T.’s injuries could have resulted from fingernail scrapes or something other than a weapon. Although an inmate-manufactured weapon was found at the scene, surveillance video from the incident did not clearly depict whether a weapon was used during the assault. Thus, the jury had ample evidence from which to assess Hunt’s opinion independently of the prosecutor’s characterization of his qualifications. We further observe that trial counsel also challenged Hunt’s qualifications as an “expert” in rebuttal. Thus, not only was the jury presented with evidence contradicting Hunt’s opinion, but it was aware of the limitations of Hunt’s purported expertise. On this record, we find no reasonable likelihood that the jury understood the prosecutor’s comments as requiring it to accept Hunt’s opinion, much less a reasonable probability that the verdict would have been different absent the prosecutor’s comment. Accordingly, even assuming the prosecutor’s characterization was improper, the error was harmless. Pugh argues that the jury’s question during deliberation and the length of the jury de