I agree with my colleagues that the prosecutor’s comments regarding the California Supreme Court and the California Court of Appeal were inappropriate and amounted to prosecutorial misconduct but did not prejudice defendant.
“Under California law, a prosecutor commits reversible misconduct if he or she makes use of ‘deceptive or reprehensible methods’ when attempting to *1379persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant’s specific constitutional rights—such as a comment upon the defendant’s invocation of the right to remain silent—but is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action ‘ “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ’ ” (People v. Rundle (2008) 43 Cal.4th 76, 157 [74 Cal.Rptr.3d 454, 180 P.3d 224] (Rundle), disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11].)
It is only where the trial was fundamentally unfair that we evaluate any error under the federal standard; otherwise, we apply the state law harmless error standard of review. (People v. Adanandus (2007) 157 Cal.App.4th 496, 514-515 [69 Cal.Rptr.3d 25].) Under the state law standard, reversal is required “only if, ‘after an examination of the entire cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably probable’ the defendant would have obtained a more favorable outcome had the error not occurred ([People v. Watson] [(1956)] 46 Cal.2d 818, 836 [299 P.2d 243]).” (People v. Breverman (1998) 19 Cal.4th 142, 178 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)
Defendant takes issue with three comments by the prosecutor referring to the California Supreme Court and the California Court of Appeal. The first comment was the prosecutor’s statement that the California Supreme Court had decided that an inference of intent to kill arises from the act of firing a gun at another from close range. His second comment was that the California Supreme Court had decided that the intent to kill two different victims “can be inferred” from evidence that the defendant fired a single shot at two visible victims. The third comment was that the California Court of Appeal had decided that a defendant’s act of firing a “rifle” toward a victim from 20 yards away in a manner that could have inflicted a mortal wound if the bullet had reached its target “was sufficient to support an inference of intent to kill.”
The legal substance of the prosecutor’s comments was not inaccurate. (People v. Perez (2010) 50 Cal.4th 222, 230, 233 [112 Cal.Rptr.3d 310, 234 P.3d 557]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [60 Cal.Rptr.2d 761].) The prosecutor was entitled to argue to the jury that the evidence was sufficient to support an inference of intent to kill. However, the prosecutor’s attempt to characterize his arguments as holdings by the California Supreme Court and the California Court of Appeal was completely improper and had the potential to create a misimpression that these courts had signaled their agreement with the prosecutor’s arguments about the facts of this case.
*1380Although the prosecutor’s comments in this regard were improper, they did not amount to federal constitutional error because they did not so infect the entire trial with unfairness that due process was violated. (Rundle, supra, 43 Cal.4th at p. 157.) The improper references were brief and were not inflammatory. Because they occurred during argument, and the jury was instructed that argument was not evidence, the improper comments had little potential to compromise the fairness of the trial as a whole.
Still, the prosecutor’s comments were deceptive, and they therefore constituted state law error, which would merit reversal if it were reasonably probable that defendant would have fared better in their absence. Here, reversal is not merited. These brief, noninflammatory comments were unlikely to deceive a jury that was given copious instructions on the burden and standard of proof and on its responsibility to determine whether defendant harbored the required intent to kill. Notably, the jury acquitted defendant of the second attempted murder count even though the prosecutor argued that the California Supreme Court had ruled that an intent to kill two victims could be inferred from evidence that a single shot was filed at two visible victims, as occurred here. Under these circumstances, and in light of the very strong evidence that defendant in fact harbored the requisite intent to kill, it is not reasonably probable that the prosecutor’s comments influenced the result. For these reasons, I agree with my colleagues that these comments do not merit reversal.
Appellant’s petition for review by the Supreme Court was denied March 20, 2013, S208107.