Is a defense counsel ineffective for failing to object when a prosecutor said in passing that a defendant was not intellectually disabled?

"[M]ental retardation is a question of fact. [Citations.] It is not measured according to a fixed intelligence test score or a specific adaptive behavior deficiency, but rather constitutes an assessment of the individuals overall capacity based on a consideration of all the relevant evidence." ( In re Hawthorne, supra, 35 Cal.4th at p. 49, 24 Cal.Rptr.3d 189, 105 P.3d 552.) However, "the medical profession has endeavored to counter lay stereotypes of the intellectually disabled. ... Those stereotypes, much more than medical and clinical appraisals, should spark skepticism." ( Moore v. Texas (2017) U.S. , 137 S.Ct. 1039, 1052, 197 L.Ed.2d 416, citations omitted.)

Assuming without deciding that the comment was erroneous, we conclude it was harmless because it was said in passing and the prosecutor went on to review the evidence, including the experts findings, to support his contention that defendant was not intellectually disabled. Taking the prosecutors comments as a whole, there is no "reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ( People v. Samayoa (1997) 15 Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.)

[421 P.3d 650]

Accordingly, defense counsel was not ineffective for failing to object.