When will a jury reject a defendant's claim that trial counsel refused to object to the prosecutor's closing argument?

First, the record is silent as to why trial counsel did not object to the prosecutor's closing argument. Accordingly, defendant's claim must be rejected. (People v. Huggins (2006) 38 Cal.4th 175, 205.) We note there was also a potential tactical purpose for not objecting -- that is, to not draw the jury's attention to the socks incident in light of the prosecutor's argument that the socks incident established intent to steal the shoes.

Second, as the People note, and we agree, the prosecutor clearly elected the shoes incident as the basis for the charges against defendant. A defendant's right to a unanimous jury verdict requires that the jury agree unanimously the defendant is guilty of a specific crime. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) "Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act." (Ibid.)

Here, the prosecutor clearly stated in closing argument he was charging defendant with the shoes incident, not the socks incident. He said: "Let's be clear, he's not being charged for the socks. He's being charged for the shoes." (Italics added.) (See People v. Mayer (2003) 108 Cal.App.4th 403, 418 [no error when prosecutor described evidence and basis for charges]; People v. Jantz (2006) 137 Cal.App.4th 1283, 1292 [prosecutor sufficiently informed jury he was using specific threat for the charge].) Defendant argues Melhado requires more. We disagree; Melhado is distinguishable.

In that case, the defendant was charged with making terrorist threats to an auto repair shop owner. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1532-1533.) Defendant visited the victim's shop three times in the same day -- at 9:00 a.m., 11:00 a.m., and again at 4:30 p.m. -- each time making threats and twice carrying what appeared to be an operable hand grenade. (Id. at p. 1533.) Outside the jury's presence,

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