What is the effect of a prosecutor's argument that a defendant has been found guilty of assault by reason of voluntary intoxication?

We acknowledge that "'[w]hen argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." [Citation.]' [Citation.]" (People v. Centeno, supra, 60 Cal.4th at p. 676.) The jury was instructed, "If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) It was also instructed that it could "consider evidence . . . of the defendant's voluntary intoxication . . . in deciding whether the defendant acted with the specific intent to commit an assault by means of force likely to cause great bodily injury." (CALCRIM No. 3426.)

The prosecutor, however, paid lip service to the voluntary intoxication instruction and purported to be merely explaining it. As already discussed, voluntary intoxication that prevents the formation of specific intent and voluntary intoxication that causes a mistake of fact can overlap. We would not expect a lay jury to detect, based on the instruction alone, the flaw in the prosecutor's argument. (See People v. Centeno, supra,

Page 16