People v. Smith

Full title: THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE SMITH, Defendant and…

Court: California Court of Appeals, First District, Fourth Division

Date published: Sep 29, 2008

No. A115149 (Cal. Ct. App. Sep. 29, 2008)

Opinion

THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE SMITH, Defendant and Appellant. A115149 California Court of Appeal, First District, Fourth Division September 29, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Alameda County Super. Ct. No. C149528A

Reardon, J.

A jury convicted appellant Edward Lee Smith of second degree murder and possession of a firearm by an ex-felon. (See Pen. Code,¹ §§ 187, 12021, subd. (a)(1).) Allegations that he suffered a prior conviction for residential burglary and that he personally and intentionally discharged a firearm inflicting great bodily injury or death during the commission of murder were also found to be true. (See §§ 667, subd. (a), 12022.53, subd. (d).) Sentenced to state prison for a total term of 60 years to life, Smith appeals. He challenges the admissibility of some evidence and asserts a claim of ineffective assistance of counsel. He also raises issues of prosecutorial and judicial misconduct. We order the abstract of judgment to be corrected, but otherwise affirm the conviction.

1 All statutory references are to the 2002 version of the Penal Code in force at the time of the charged offenses, unless otherwise indicated. Although various statutes referred to in this opinion have been amended since that time, none of those amendments made any substantial change to these provisions as they apply in this matter. (See former §§ 667.5, [Initiative Measure (Prop.21, § 15, approved Mar. 7, 2000, eff. Mar. 8, 2000)], 1192.7 [Initiative Measure (Prop.21, § 17, approved Mar. 7, 2000, eff. Mar. 8, 2000)], 12021 [Stats. 2001, ch. 944, (S.B. 950), § 3], 12022.5 [Stats. 1999, ch. 129, (S.B. 23), § 5], 12022.53 [Stats. 2001, ch. 854, (S.B. 859), § 60].)

I. Facts

A. Homicide and Investigation

On Sunday, June 9, 2002,² Christian “C-Note” Dotson was shot and killed outside an apartment complex at 84th Avenue and Dowling Street in Oakland. He had been shot more than a dozen times in his head and torso. Dotson had sold marijuana on a corner near where he was killed. He had evidence of heroin, cocaine and marijuana use in his system at the time of death. He also wore a tattoo signifying his membership in the Kumi 415 gang. Three other people were also injured during this incident.

2 We take judicial notice of the fact that this date was a Sunday. (See Evid. Code, §§ 451, subd. (f), 459, subd. (a)(2).)

Witnesses to the shooting were initially reluctant to report their observations to police, so the Dotson case went unsolved for some time. In late June 2002, police arrested Stephen Swayne in Oakland on an unrelated charge and found a nine-millimeter semiautomatic Luger pistol in his car. By September 2002, ballistics tests confirmed that this was the Dotson murder weapon.

Oakland police routinely question arrestees about information they might have about violent crimes committed by others. In the two years after the Dotson shooting, five men—Varron Armstrong, Michael Attaway, Antone Bostic, Kevin Hampton and Juan Rodriguez—were questioned about it while each was in police custody on unrelated charges. All five men knew Dotson. Each man also knew appellant Edward Lee Smith, who went by the street name “E-Roc” and was thought to control drug sales in the area of the shooting. Each man lived at or frequented the apartment complex at 84th Avenue and Dowling Street where Dotson had been killed. Each had prior convictions or admitted engaging in some type of criminal activity, usually involving narcotics. Most of these five men used and/or sold illegal drugs.

The first of these five interviews occurred in March 2003. Varron Armstrong—suspected of using heroin—spoke with Oakland police after he was arrested on a drug charge. He told them about Dotson’s murder. Armstrong told police that two days before the shooting, Smith and Dotson had quarreled about whether Dotson would sell heroin for Smith. On the day that Dotson was killed, he was selling drugs near the apartment complex. That day, Armstrong saw Smith come from the back of the apartment complex and shoot Dotson. After Dotson fell to the ground, Smith continued shooting him, then ran back the way he had come, toward 83rd Avenue. Armstrong viewed a photographic lineup for police, identifying Smith as the gunman.

In May 2003, Michael Attaway was arrested by Oakland police after using heroin and cocaine. By then, he had suffered prior convictions for second degree burglary and possession of narcotics for sale. Attaway offered the police information about the Dotson shooting, hoping for some leniency in his own case. He told the police that a few days before the shooting, Smith had threatened a group of men who were standing in the area near the apartment complex, telling them that he wanted everyone to leave. Smith said that he was not “doing no talking,” but was “just shooting.”

Attaway told police that on the day of the shooting, he had been living at the apartment complex. At that time, he had a $100 a day heroin habit, although he denied using any drugs that Sunday morning. When he woke, he saw Dotson standing outside the apartment complex and saw Smith ride by near Dotson. A minute or two later, Attaway heard his seven-year-old nephew say, “Watch out, C-Note, look behind you.” Then, gunshots rang out. Attaway saw Smith shoot Dotson—multiple shots that forced Dotson to the ground and more shots that were inflicted after he had fallen. Smith then left, running back through the apartment complex from 84th Avenue to 83rd Avenue. He saw another man and woman who were also shot and injured that day. Attaway viewed a photographic lineup for police and identified Smith’s photograph.

In February 2004, Juan Rodriguez was arrested. He was going through heroin withdrawal at the time that he gave a tape-recorded statement to Oakland police. Rodriguez lived in the neighborhood where Dotson was killed. He told police that he saw Dotson’s body lying in front of the apartments on the day of the shooting. He had seen Smith and Antone Bostic³ ride by in a car that day. A few months before the shooting, Rodriguez had witnessed Dotson and Smith arguing—Smith pushed Dotson, called him a “rat bastard” and even pulled a gun on him. Rodriguez told police that Smith was angry because Dotson’s girlfriend had planted drugs in someone’s car.

3 This was the first time that Oakland police heard Bostic’s name linked with Dotson’s death. Earlier, Armstrong had offered a different name as the person who was with Smith.

A few months after the shooting, Rodriguez spoke with Smith, pointing out someone who looked like Dotson. Smith said: “That punk. He don’t believe in dead people coming back. Once they gone, there’s no coming back, so it couldn’t have been him.” Smith said, “Once I kill a mother fucker, he’s never coming back.” Smith told Rodriguez several times that he had killed Dotson. He told Rodriguez that on the day of the shooting, he had asked Bostic for a ride. Bostic had driven the two of them in his car. He recounted how he had come from the back of the apartment complex with a gun; how he told a little boy to be quiet; how he had been looking for a man with the street name of Roddy-Rod, but did not find him, so he shot Dotson instead; and how he walked over to Dotson after the victim was on the ground and killed him. Rodriguez also identified Smith in a photographic lineup as the man who shot Dotson.

Rodriguez told the police that he had also spoken with Bostic about the shooting after it had occurred. Bostic told Rodriguez that he had given Smith a ride that morning. He thought that Smith intended to kill—not Dotson—but Roddy-Rod—a man who was not a member of the Kumi 415 gang. According to Rodriguez, Bostic felt “crossed-up” by Smith because he shot Dotson—who was a member of that gang—instead. Bostic was concerned that members of the Kumi 415 gang—with whom Rodriguez believed that Bostic⁴ was affiliated—would think he was involved with Dotson’s death. Bostic also told Rodriguez that Smith had given him the gun to “put up,” but that he sold it instead. In a photographic lineup, Rodriguez identified Bostic as the driver of the car that he saw on the day of the shooting.

4 Bostic admitted associating with members of Kumi 415, but the record does not reveal whether or not he was a member of that gang.

In March 2004, Kevin Hampton was arrested and interviewed by Oakland police. He told police that he was at the 84th Avenue and Dowling Street apartment complex on the day that Dotson was shot and that he had information about the shooting. Just before the shooting, he saw Smith come from the back of the apartment complex. Smith walked by a child, tapped him on the shoulder and said “ ‘Shh.’ ” Then, Hampton heard the child say, “ ‘Hey, C-Note, watch out.’ ” Hampton saw Smith with a gun in his hand and heard him call out “ ‘Hey, mother fucker, turn around’ ” before he started shooting. Smith shot first while his victim had not yet turned around and then fired more shots while standing over his fallen victim. Smith ran back the way he had come. Hampton viewed a photographic lineup for police and identified Smith as the man who shot Dotson.

B. Arrest and Pretrial Matters

In April 2004, a complaint was filed charging Smith with the murder of Dotson. Smith was arrested at his home in Oakland. A loaded, nine-millimeter Beretta semiautomatic pistol was found under a bedroom mattress during a search of his home. An amended complaint was filed against Smith adding a charge of possession of a firearm by an ex-felon. (See § 12021, subd. (a)(1).)

On June 19, 2004, Oakland police interviewed Antone Bostic, who was being held on a parole violation. Initially, Bostic did not tell police that the murder weapon had been in his car and he denied speaking with Smith after the shooting. Later, Bostic admitted to police that he had given Smith a ride to the area of the shooting; that Smith walked toward the apartment complex; that he heard multiple gunshots before Smith returned to the car and told him to drive away; and that Smith told him “I got that nigger” after the shooting. Bostic also told police that he sold the gun that Smith handed him after the shooting to a man named Stephen and that Smith asked for the gun back days after the shooting. Bostic was high on methamphetamine and heroin after a three-day binge at the time that he made his statement. Later, he could not recall what he was asked and what he said that day.

Three days after the Bostic interview, an amended complaint was filed, charging both Smith and Bostic with the murder of Dotson. In February and March 2005, a preliminary hearing was conducted on those charges. At that hearing, Rodriguez testified that Smith was in charge of drug sales in the 84th Avenue and Dowling area. A few months before the shooting, Rodriguez overheard Smith and Dotson arguing. Smith had pushed Dotson and had pulled a gun on him. Rodriguez testified that on the day of the shooting, he saw Smith and Bostic ride by the apartment complex in a car. Rodriguez also testified that Bostic later said that he felt “crossed up” by Smith because he did not know that Smith intended to shoot Dotson. Rodriguez was in custody at the time of the preliminary hearing.

Varron Armstrong also testified at the preliminary hearing. He placed Smith in a car parked on 83rd Avenue before the shooting. He testified that he heard someone yell, “No, C-Note, watch out,” before he saw Smith come through the alley and shoot Dotson. Armstrong stated that he gave his March 2003 statement to police about the shooting because he feared for his life. He had been threatened and he was tired of looking over his shoulder all the time.⁵ Later, he testified that Smith had threatened him in a nonverbal manner. At the time that he offered his preliminary hearing testimony, Armstrong was in custody.

5 The jury heard this preliminary hearing testimony read during trial. The trial court admonished the jury that the evidence was admitted for the limited purpose of showing Armstrong’s state of mind—that it could not be taken as evidence that Smith had threatened him.

Smith and Bostic were both held to answer for Dotson’s murder. They were charged by information with first degree murder. (§ 187, subd. (a).) Smith was alleged to have used and discharged a firearm, inflicting great bodily injury or death in the commission of this offense, which was alleged to be a serious and violent felony.⁶ (§§ 667.5, subd. (c)(1), 1192.7, subd. (c)(1), 12022.5, subd. (a)(1), 12022.53, subds. (b)-(d).) It was also alleged that he committed this offense while released from custody on bail or his own recognizance. (§ 12022.1.) In a second count, Smith was charged with being an ex-felon in possession of a firearm.⁷ (§ 12021, subd. (a)(1).) He was also alleged to have suffered two prior convictions—a 1989 conviction for residential burglary and a 1995 conviction for possession of a controlled substance for sale. (See §§ 459, 460, subd. (a), 667, subds. (a)(1), (e)(1), 667.5, subd. (b), 1170.12, subd. (c)(1); see also Health & Saf. Code, § 11351.) Smith pled not guilty and denied all allegations against him.

6 For his part, Bostic was alleged to have been armed with a firearm during the commission of this offense. (§ 12022, subd. (a)(1).)

7 Originally, the information charged that this possession occurred when Smith was arrested in April 2004. It was later corrected to allege that Smith possessed a weapon on the date of the June 2002 shooting.

In May 2006, Smith admitted that he had suffered his prior conviction for possession of a controlled substance for sale, in order to establish a necessary element of the charge of being an ex-felon in possession of a firearm. In so doing, he hoped to preclude admission of evidence of the nature of his prior felony conviction when he was tried for the weapon possession charge. (See § 667.5, subd. (b); see also Health & Saf. Code, § 11351.) The remaining elements of the controlled substance prior conviction enhancement, all issues relating to the residential burglary prior conviction enhancement, and the bail enhancement were bifurcated for court trial.

C. Trial

At the June 2006 trial, Antone Bostic testified on behalf of the prosecution. An ex-felon,⁸ Bostic knew both Dotson and Smith. Sometimes, Bostic spent time at 84th Avenue and Dowling Street with members of Kumi 415—getting high together or just talking. Sometimes, he sold marijuana for Smith near the apartment complex. Smith supervised illegal drug sales in the immediate area and it was risky to sell drugs there without his approval. Smith would package the marijuana into small bags and Bostic would be paid according to the amount he sold. Occasionally, Smith was there, too—he had several people selling marijuana for him in that location. Bostic also sold marijuana for other dealers, but not for Dotson, who also sold drugs there.

8 Bostic admitted felony convictions for robbery and possession of a controlled substance for sale.

On the morning of the day that Dotson was killed, Smith came to Bostic’s Oakland home. At that time, Bostic was using $30 or $40 of heroin daily, but he had not used any that morning. Smith offered to give him a few dollars if Bostic would take him to drop off some marijuana on 84th Avenue. He carried a small gym bag over his shoulder, but Bostic did not know what was inside. Smith sat in the passenger seat of Bostic’s car as it headed toward 84th Avenue. At Smith’s direction, Bostic parked on 83rd Avenue. Smith left the car with the bag, saying that he would be right back. Bostic watched him go down an alley connecting 83rd and 84th Avenues through the apartment complex.

A minute later, Bostic heard multiple gunshots coming from 84th Avenue. Scared, he started up the car to leave as the last of them sounded. He saw Smith running back up the alley. Smith—looking anxious and serious—got in the car and told Bostic to get out of there. When Bostic asked what had happened, Smith replied: “I [got] that fool.” “I got that nigger . . . . C-Note.” Bostic saw the handle of a gun sticking out of the bag Smith had carried. Smith told Bostic to “put it up” for him. Smith wrapped the gun in a cloth and left it under a seat in the car. Bostic let Smith off a few blocks away from the apartment complex.

Later that day, Bostic learned that Dotson had been shot. He sold the gun that Smith had left with him to Swayne. A week after the shooting, Smith asked Bostic for his gun back and was upset when he learned that Bostic had sold it. Bostic told the jury that he did not see the shooting and had nothing to do with it. Smith had told him that he killed Dotson—he never accused Bostic or Swayne of doing so. Because of his testimony, Bostic hoped to be sentenced to three years for his involvement in the Dotson killing instead of facing a life term.

Michael Attaway also testified for the prosecution at trial. He identified Smith in court. He told the jury that on the morning of June 9, 2002, he was at the apartment complex. He saw Smith ride by in a car a minute or two before he heard gunshots. Just before multiple gunshots were heard, he heard his nephew say “Watch out, C-Note, look behind you.” Attaway saw that Dotson had been shot. He did not see who was shooting when the first few shots were fired, but he saw Smith shoot Dotson several times after the victim fell to the ground on his back. Attaway’s girlfriend called 911. The 911 tape was played for the jury and Attaway identified his voice as one that could be heard in the background. Attaway did not offer any assistance to police at that time, but after he was arrested by Oakland police in May 2003, he gave a statement about the Dotson homicide.⁹

9 He also testified at the preliminary hearing in this matter.

Kevin Hampton was transported from San Quentin State Prison where he was serving a sentence for robbery to testify for the prosecution at trial. When questioned about his March 2004 statement to police, Hampton denied making the statement and denied witnessing the Dotson shooting. Aspects of his statement were recounted to the jury to impeach this testimony. Hampton also denied identifying Smith in a March 2004 photographic lineup, but an Oakland police officer testified that he did so. The photographic lineup that Hampton had signed was admitted into evidence as well.

At trial, Juan Rodriguez was another reluctant witness for the prosecution. He came to court under subpoena and was granted use immunity before he completed his testimony. He told the jury that he sold marijuana near the 84th Avenue apartment complex. Smith and Dotson also regularly sold drugs there. On the day of the shooting, he was at his grandmother’s house around the corner from 84th Avenue and Dowling Street. When he heard gunshots coming from 84th Avenue, he headed in that direction. He saw Dotson’s body lying on the ground and a teenaged boy limping after suffering a gunshot wound. Rodriguez also saw a teenaged girl in an ambulance. As he stood at 84th Avenue and Dowling Street after the shooting, Rodriguez saw Bostic and Smith ride by in a car.

A week later, Smith spoke with Rodriguez about the shooting. Smith said that he had come from 83rd Avenue, through the apartment complex to 84th Avenue, where he shot Dotson. Smith told Rodriguez that he had left Bostic in the car on 83rd Avenue behind the apartment complex. Before the shooting occurred, Smith said that he had seen a little boy and told him “Shh.” He told Rodriguez that he had intended to shoot Roddy-Rod because of an altercation that they had had a few months earlier, but he did not see his intended victim, so he shot Dotson instead. Smith thought that there was a reward to be had for Dotson’s life.

Several months after the shooting, Bostic told Rodriguez that he had been the driver on the day of the shooting and that he thought that Smith intended to shoot Roddy-Rod. Rodriguez also testified that he moved out of Oakland for six months after the shooting before moving back. In 2005, he received funds from the district attorney’s office to help him relocate again after he testified because he feared that his life was in danger.

Varron Armstrong was another less-than-willing witness for the People. He told the jury that he did not remember what happened on the day of the shooting, nor did he recall the statement he made to police or the testimony he gave at the preliminary hearing about the shooting.¹⁰ He reluctantly testified that he knew Dotson, but did not remember whether he saw Smith on the day of the shooting. Armstrong had been convicted of robbery in 2005 and was then in custody on a murder charge. Armstrong and Smith were both jailed at the same facility.

10 At trial, Armstrong testified that he was truthful during his preliminary hearing testimony.

Smith did not testify at trial. His mother had died early in 2002, leaving Smith depressed and ill. He began going to church after his mother’s death.

Family members recalled that he had been with them watching a fight on pay-per-view television on the night before the shooting. Smith’s brother Ben Knighten testified that on Sunday, June 9, 2002—the night after the televised fight—he picked up Smith about 9:00 a.m. and drove him to their church. Smith’s girlfriend Machelle Stevens testified that on Sundays in 2002, if Smith was not at church, he was at home with her and her three children.

Viewed together, the testimony of the five key prosecution eyewitness contained discrepancies about such matters as the clothing, hairstyle and facial covering that Smith wore, the description of the car that brought Smith to the scene of the shooting, whether Smith was the passenger or the driver in that vehicle, and the description of the murder weapon. These discrepancies were explored during cross-examination and noted again during Smith’s closing argument. The credibility of these five witnesses—with their histories of drug use and criminal offenses—was a key defense issue explored during cross-examination and argument.

When the jury was unable to reach a unanimous decision about the degree of murder, the People’s motion to dismiss the first degree murder allegation was granted. The jury continued to deliberate. Soon, it found Smith guilty of second degree murder and of being an ex-felon in possession of a firearm on the date of the Dotson shooting. It also found the great bodily injury enhancement allegation to be true.¹¹

11 The ex-felon in possession of a firearm offense that was pled and found by the jury was that specified in subdivision (a)(1) of section 12021, not a violation of subdivision (a)(2) of that section as set out in error in the abstract of judgment. The abstract of judgment must be corrected to reflect the true facts.

After a separate trial on the prior conviction allegations, the trial court found one prior serious felony conviction allegation—a 1989 residential burglary conviction—to be true. (See §§ 459, 460, subd. (a), 667, subds. (b)-(i), 1192.7, subd. (c)(18).) It granted the People’s motion to strike a second prior conviction.

Smith moved the trial court to strike the bail enhancement¹² and the remaining prior conviction. (See § 1385.) The motion was denied. Smith was sentenced to a total term of 60 years to life in state prison—an indeterminate term of 15 years to life for second degree murder, doubled because of his prior conviction; a consecutive term of 25 years to life for using a firearm to cause great bodily injury during the murder, and a consecutive five-year term for the prior conviction. A two-year term for being an ex-felon in possession of a firearm was ordered to run concurrently with the murder sentence. (See §§ 18, 189, 190, subd. (a), 667, subds. (a)(1), (e)(1), 1170.1, subd. (a), 12021, subd. (a)(1), 12022.53, subds. (a)(1), (d).)

12 The record on appeal does not show whether the bail enhancement was proven to either the jury or the court, or whether the trial court granted or denied the request to strike the bail enhancement. No related sentence enhancement appears to have been imposed by the trial court.

II. Prosecutorial Misconduct

A. Legal Standard

First, Smith contends that the prosecutor committed misconduct on various occasions, both during the presentation of evidence and during closing argument. To constitute a violation under the federal Constitution, prosecutorial misconduct must violate some specific constitutional guarantee or must so infect the trial with unfairness that it makes the resulting conviction a denial of due process. (Darden v. Wainwright (1986) 477 U.S. 168, 181; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643; People v. Valdez (2004) 32 Cal.4th 73, 122, cert. den. sub nom. Valdez v. California (2005) 543 U.S. 1145 (Valdez); People v. Gionis (1995) 9 Cal.4th 1196, 1214.) It is not necessary for the prosecutor to act in bad faith—even unintentional acts may constitute misconduct. (People v. Hill (1998) 17 Cal.4th 800, 822-823; People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36 (Nguyen); People v. Pitts (1990) 223 Cal.App.3d 606, 691.) If we find prosecutorial misconduct that violates a defendant’s federal constitutional rights, we must reverse the conviction unless we find beyond a reasonable doubt that prosecutorial misconduct did not contribute to the jury’s verdict. (See Chapman v. California (1967) 386 U.S. 18, 24; People v. Bolton (1979) 23 Cal.3d 208, 214)

Even if prosecutorial misconduct does not rise to the level of rendering a trial unfair under federal constitutional standards, it may still violate state law if it involves the use of deceptive or reprehensible methods to attempt to persuade a jury. (Valdez, supra, 32 Cal.4th at p. 122; People v. Gionis, supra, 9 Cal.4th at p. 1215.) When determining whether the prosecutor used deceptive or reprehensible methods to attempt to persuade a jury constituting prosecutorial misconduct, we consider whether a particular incident is incurably prejudicial and warrants a mistrial. This issue is inherently speculative. (People v. Hines (1997) 15 Cal.4th 997, 1038, cert. den. sub nom. Hines v. California (1998) 522 U.S. 1077; People v. Gionis, supra, 9 Cal.4th at p. 1215; People v. Haskett (1982) 30 Cal.3d 841, 854, cert. den. sub nom. Haskett v. California (1991) 502 U.S. 822.) Prosecutorial misconduct violating state law is reversible if it is reasonably probable that a result more favorable to the defendant would have occurred without the misconduct. (People v. Bolton, supra, 23 Cal.3d at p. 214; see People v. Watson (1956) 46 Cal.2d 818, 836, cert. den. sub nom. Watson v. Teets (1957) 355 U.S. 846.)

In all but an unusual case, the prejudicial effect of improperly admitted evidence can be cured by admonishment. (People v. Prather (1901) 134 Cal. 436, 439; People v. Allen (1978) 77 Cal.App.3d 924, 935.) The California Supreme Court has repeatedly held that in order to preserve an issue of prosecutorial misconduct for review on appeal, the defendant must make a timely objection and request an admonition from the trial court. (Valdez, supra, 32 Cal.4th at p. 122; People v. Cox (2003) 30 Cal.4th 916, 952, cert. den. sub nom. Cox v. California (2003) 540 U.S. 1051; People v. Earp (1999) 20 Cal.4th 826, 858, cert. den. sub nom. Earp v. California (2000) 529 U.S. 1005; see People v. Sapp (2003) 31 Cal.4th 240, 279, cert. den. sub nom. Sapp v. California (2004) 541 U.S. 1011.) This requirement allows the trial court an opportunity to correct any error. (People v. Cox, supra, 30 Cal.4th at p. 952.)

If the defense fails to request an admonishment, the right to appeal the issue is waived. (People v. Earp, supra, 20 Cal.4th at p. 858 .) This waiver rule does not apply if a timely objection or request for admonition would have been futile. (Valdez, supra, 32 Cal.4th at p. 122; People v. Hill, supra, 17 Cal.4th at p. 820; People v. Johnson (2004) 119 Cal.App.4th 976, 984.) If the defendant raises this claim on appeal, we may review the prosecutorial misconduct claim only if an admonition would not have cured the harm caused by the alleged misconduct. (See Valdez, supra, 32 Cal.4th at p. 122.)

If trial counsel failed to preserve the issue for appeal by making a timely objection and seeking an admonishment, a defendant may still assert that this omission constituted ineffective assistance of counsel. A criminal defendant has a federal and state constitutional right to the effective assistance of counsel. To establish a claim of incompetence of counsel, a defendant must establish both that counsel’s representation fell below an objective standard of reasonableness and that it is reasonably probable that, but for counsel’s error, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 (Strickland); People v. Maury (2003) 30 Cal.4th 342, 389, cert. den. sub nom. Maury v. California (2004) 540 U.S. 1117 (Maury); see U.S. Const., 6th & 14th Amends.) Our hindsight scrutiny of defense counsel’s performance must be highly deferential. On appeal, the defendant must overcome the presumption that under the circumstances, the challenged action or omission might be considered a sound tactical decision. (See Strickland, supra, 466 U.S. at p. 689.) To prevail, a defendant must establish incompetence by a preponderance of evidence. (People v. Ledesma (1987) 43 Cal.3d 171, 218.) With these legal principles in mind, we consider the claims of prosecutorial misconduct that Smith raises on appeal.

B. Examination of Witnesses

1. Doyle Error

Smith asserts that the prosecutor committed misconduct at various times during the presentation of evidence. First, he contends that misconduct occurred when the prosecutor solicited testimony from Bostic suggesting that Smith had not asserted his innocence while the two of them were awaiting trial. During his direct examination, Bostic testified that immediately after the shooting, Smith told him that he had shot Dotson. When asked on cross-examination how he learned that Dotson had been killed, Bostic replied that Smith told him so. On redirect, Bostic testified that since the two of them had been jailed, he had come in contact with Smith only while going back and forth to court and while at the preliminary hearing. Then, Bostic told the jury that Smith had never accused Bostic or Swayne of killing Dotson, but had admitted that he had done so. Smith raised no objection to this questioning, but elicited Bostic’s admission during recross-examination that Smith had made this admission of guilt soon after the shooting, not while the two were going back and forth to court. At closing argument, the prosecutor mentioned this testimony. (See pt. II.C.1., post.)

On appeal, Smith argues that when the prosecution solicited testimony that he had failed to assert his innocence to Bostic while the two awaited trial, it impinged on his right to remain silent. Once a person has been arrested and advised of his or her Miranda privilege (Miranda v. Arizona (1966) 384 U.S. 436) against self-incrimination, the prosecution may not invite the jury to draw an adverse inference about that exercise of the privilege. The use of a defendant’s postarrest silence for impeachment purposes at trial violates due process. (Doyle v. Ohio (1976) 426 U.S. 610, 619; see U.S. Const., 14th Amend.) Smith’s counsel did not raise an objection to the prosecutor’s questions eliciting the challenged testimony. The failure to raise a timely objection bars Smith from raising this issue on appeal. (See Valdez, supra, 32 Cal.4th at p. 122.)

Alternatively, Smith argues that his trial counsel was ineffective because she failed to object to this questioning.¹³ He reasons that counsel could have had no tactical reason for failing to do so. We disagree. The questions asked could have referred to statements made or not made by Smith either at the time of the shooting or after he and Bostic were arrested. Defense counsel made it clear to the jury that Bostic’s response was about Smith’s earlier admission, not about any postarrest statement. It seems that trial counsel made a tactical decision to diffuse the issue in this manner, rather than by objecting. As this could be considered a sound tactical decision, the ineffective assistance of counsel claim fails.¹⁴ (See Strickland, supra, 466 U.S. at p. 689.)

13 During trial, Smith also filed an unsuccessful Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) to challenge his trial counsel’s representation of him.

14 See footnote 17, post.

2. Contract on Hampton’s Life

Smith next contends that the prosecutor violated a trial court order by questioning Hampton about a contract made against the lives of some witnesses. Before trial, the prosecution sought to admit evidence that Attaway and Rodriguez had been told that someone linked to Smith had put a $10,000 contract out on their lives because they were witnesses in this case. If the witnesses proved reluctant to testify, the prosecutor wanted to introduce this evidence to show their state of mind and to challenge their credibility. The trial court ruled that the evidence of a contract would be relevant to explain a frightened witness’s state of mind, but that the contract could not be linked to Smith before the jury without an offer of proof of a link being presented to the trial court ahead of time.

When Hampton testified before the jury and denied making his March 2004 statement, the prosecutor asked if he and Rodriguez had spoken about their names appearing on a list threatening the lives of all the witnesses in this case. Hampton denied speaking with Rodriguez about this. When asked if he was aware of such a list, defense counsel objected that his response would constitute hearsay. The trial court sustained that objection, but allowed the jury to consider the evidence for the limited purpose of whether threats might have been made that affected Hampton’s state of mind. It specifically precluded the jury from considering the evidence to show that Smith was responsible for those threats, telling the jurors that “[t]here is no evidence of that.” Hampton then denied being too frightened to testify, stating that he knew nothing about any hit list.

On appeal, Smith contends that the prosecutor committed misconduct by failing to make an offer of proof outside the jury’s hearing before introducing evidence of a hit list. The failure to yield to a trial court’s ruling can constitute misconduct. (See, e.g., People v. Pigage (2003) 112 Cal.App.4th 1359, 1374.) However, defense counsel did not raise a prosecutorial misconduct objection in the trial court, although she raised other objections to the questioning. We have no authority to set aside a judgment because of the erroneous admission of evidence unless the defendant made an objection in the trial court on the specific ground asserted on appeal. (See Evid. Code, § 353, subd. (a); People v. Morris (1991) 53 Cal.3d 152, 188, cert. den. sub nom. Morris v. California (1991) 502 U.S. 959, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) Defense counsel’s failure to make a prosecutorial misconduct objection precludes Smith from raising this issue on appeal. (See Valdez, supra, 32 Cal.4th at p. 122.)

Smith also contends that defense counsel’s failure to raise this specific objection constituted ineffective assistance of counsel. His underlying claim of error assumes that the trial court’s in limine order required an offer of proof before inquiring whether Hampton knew of the hit list. We disagree with this reading of the in limine ruling. We are satisfied that the trial court required an offer of proof only if the prosecutor sought to introduce evidence linking Smith with any hit list. Our interpretation of the in limine order is reinforced by the trial court’s acts after sustaining Smith’s hearsay objection to the challenged question. It allowed Hampton to answer the proffered question, but admonished the jury to consider that response only for the limited purpose of determining his state of mind. It specifically instructed the jury that it was not evidence linking any hit list to Smith. As it appears that the prosecutor did not violate the trial court’s order, there was no prosecutorial misconduct and defense counsel cannot be found ineffective for failing to lodge a nonmeritorious objection. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [argument], cert. den. sub nom. Rodrigues v. California (1995) 516 U.S. 851 (Rodrigues); People v. Lewis (1990) 50 Cal.3d 262, 289 [motion]; see also Strickland, supra, 466 U.S. at p. 687.)¹⁵

15 We note that at the close of evidence, the jury was again instructed not to consider the challenged evidence for anything other than the limited purpose. (See CALJIC No. 2.09; see also pt. II.C.12., post.)

3. Possession of Firearm

Smith also complains that the prosecutor committed misconduct by improperly soliciting evidence that he possessed a firearm that was not the murder weapon two years after Dotson’s death. Smith’s girlfriend Machelle Stevens testified for the defense, offering him an alibi for the day of the Dotson shooting. She told the jury that on Sundays in the summer of 2002, Smith either was at church or was home with her. She explained that after his mother died early in 2002, Smith sought to change his life and began attending church. On cross-examination, the prosecutor asked Stevens whether the changes that Smith made were also to cease committing illegal acts. Stevens denied knowing about anything illegal that Smith did—she did not know that he sold marijuana, that he had others doing this for him, or that he possessed any weapons. When asked about the weapon found in her home at the time of Smith’s arrest in April 2004, Stevens denied knowing that it was there. Shown a photograph of the weapon that police said that they seized that day, Stevens testified that she had never seen it before and that she was surprised to learn that the police said that they found it under her mattress.

On appeal, Smith argues that this questioning of Stevens was improper impeachment on a collateral matter constituting prosecutorial misconduct. He reasons that the impeachment had no tendency to impeach her credibility, as her statement was consistent with an earlier statement that she made to police. (See pt. II.C.13., post.) Again, defense counsel failed to make a prosecutorial misconduct objection, nor did she seek an admonition from the trial court. This omission precludes Smith from raising this claim of prosecutorial misconduct on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122.)

Smith also raises a related ineffective assistance of counsel claim. He contends that defense counsel should have made an Evidence Code section 352 objection to this evidence, which he reasons would have been excluded as more prejudicial than probative. We disagree. The evidence was relevant to impeach the credibility of Stevens’s testimony that Smith was a changed man who began attending church again regularly after the death of his mother. The credibility of her alibi testimony that Smith was not at the scene of the Dotson shooting on Sunday, June 9, 2002, could have been undermined by evidence that he had hidden a loaded, semiautomatic weapon under the mattress of their bed. Regardless of whether Stevens was unaware of the weapon or lying about her knowledge of it, this evidence tended to impeach the credibility of her alibi testimony.

A prosecutor is entitled to attack the credibility of defense witnesses. (See Evid. Code, § 785.) The challenged evidence was relevant and probative on the credibility of a key alibi witness. (See Evid. Code, §§ 210, 352.) In his argument that the evidence should have been excluded because it was more prejudicial than probative, Smith asserts that the evidence was prejudicial because it allowed the jury to learn that he possessed a loaded weapon in 2004. This argument assumes that the evidence had no other relevance—an argument that we reject. When we balance the probative value of this evidence and its prejudicial effect, we are satisfied that if an Evidence Code section 352 objection had been made, it would have been properly overruled. Smith’s trial counsel cannot be found to be ineffective for failing to object to the admission of relevant, admissible evidence. (See Rodrigues, supra, 8 Cal.4th at p. 1126; People v. Lewis, supra, 50 Cal.3d at p. 289.) His ineffective assistance of counsel claim fails.

4. Vouching for Armstrong

Next, Smith contends that the prosecutor improperly vouched for Armstrong, when he brought to the jury’s attention that he had interviewed this prosecution witness in jail. At trial, Armstrong denied knowing what happened on June 9, 2002, making any statement to police about the incident, or testifying at the preliminary hearing about it. He was impeached with his prior testimony identifying Smith as Dotson’s killer. After Armstrong repeatedly denied any knowledge of the shooting, the prosecutor asked about a visit he and his investigator had in jail a month earlier. The prosecutor asked if Armstrong remembered telling them that Smith had shot Dotson. Defense counsel objected that this was an improper question on direct examination. The trial court overruled the objection and Armstrong replied that he did not recall saying that. The trial court noted that while the prosecutor could not be a witness himself, he could call his inspector to bring out testimony to impeach Armstrong’s response. The prosecutor then asked whether Armstrong had spoken of Dotson as his friend, but the witness responded that he had not said that, although the prosecutor had said so. The prosecutor did not call his investigator to testify about the jailhouse interview.

On appeal, Smith argues that this exchange constituted an improper vouching for Armstrong. Impermissible vouching may occur if the prosecutor places the prestige of the state behind a witness through personal assurances of the witness’s veracity or suggests that evidence not presented to the jury supports the witness’s testimony. (People v. Fierro (1991) 1 Cal.4th 173, 211, cert. den. sub nom. Fierro v. California (1992) 506 U.S. 907.) In this matter, the prosecutor was not vouching for Armstrong’s trial testimony, but undermining it by reference to statements that the witness had made that contradicted his trial testimony. Armstrong’s preliminary hearing testimony—given in court under oath—was read to the jury, minimizing any risk that the prosecutor’s questions suggested to the jury that other statements consistent with that testimony may have been made in a private, out-of-court interview with the prosecutor.

Smith reasons that the prosecutor’s questioning left the jury with the impression that a month before trial, Armstrong had accused him of shooting Dotson, despite Armstrong’s denials, because the prosecutor had witnessed the statement. A prosecutor may not be both a witness and an advocate in the same trial. (Rules Prof. Conduct, rule 5-210; see Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 578-579.) An attorney may not assert personal knowledge of facts at issue unless he or she testifies as a witness. (Rules Prof. Conduct, rule 5-200(E).) In this matter, the prosecutor did not act as a witness and did not assert any personal knowledge—instead, he asked Armstrong about statements allegedly made to the prosecutor. Armstrong’s answers were evidence at trial. As the jury was instructed, the prosecutor’s questions were not. (See CALJIC No. 1.02.) The questions elicited a denial, laying the foundation for the prosecutor to call his investigator if he wished to do so.¹⁶

16 We perceive no misconduct arising from the fact that the prosecutor did not call his investigator to testify about this interview in order to impeach Armstrong’s trial testimony on this point. Given Armstrong’s own sworn testimony that had already been brought out to impeach him, the investigator’s testimony would have been of minimal additional impeachment value.

We are satisfied that there was no substantial danger that the jurors would interpret the prosecutor’s question as being based on information that was in his control but that was not adduced at trial. (See, e.g., People v. Fauber (1992) 2 Cal.4th 792, 822, cert. den. sub nom. Fauber v. California (1993) 507 U.S. 1007.) Assuming arguendo that the jurors may have done so, we would find any error to be harmless, given the prior testimony from Armstrong that was before the jury that clearly repudiated his trial testimony. (See Fauber, at p. 822;see also People v. Watson, supra, 46 Cal.2d at p. 836.)

C. Argument

1. Doyle Error

Smith also challenges various aspects of the prosecutor’s argument, claiming they constituted misconduct. He first challenges the prosecutor for using his postarrest silence against him during argument. During closing argument, the prosecutor argued that after Smith’s arrest, he never accused Bostic or Swayne of killing Dotson, because he knew that he was the killer. Initially, defense counsel’s objection to this argument as infringing on Smith’s right to remain silent was overruled. During a discussion outside the presence of the jury, the trial court agreed that counsel’s argument risked using Smith’s silence against him. When the jury returned, the prosecutor explained to the jury that he was not arguing that Smith’s silence was evidence of his guilt, but that Smith’s admission to Bostic at the time of the shooting that he had killed Dotson was this evidence. He apologized if he misled the jury into thinking that Smith’s silence was evidence of his guilt. (See pt. II.B.1., ante.)

On appeal, Smith contends that this argument constituted misconduct. A prosecutor may not exploit a defendant’s postarrest exercise of his or her privilege against self-incrimination to impeach the defendant. (People v. Fabert (1982) 127 Cal.App.3d 604, 609; see Doyle v. Ohio, supra, 426 U.S. at p. 619; see also U.S. Const., 5th & 14th Amends.) In this matter, the prosecutor’s later retraction cured any prejudice resulting from his erroneous argument, as he told the jury not to draw the inference that Smith, on appeal, fears it did.¹⁷

17 The conclusion that Smith suffered no prejudice from his attorney’s failure to object to this argument provides additional support to our conclusion that he did not establish ineffective assistance of counsel related to the elicitation of the evidence on which the inference would have been based. (See pt. II.B.1., ante.)

Smith argues that this retraction did not cure the error, but served to repeat and reemphasize the improper inference of a consciousness of guilt. The doctrine of invited error comes into play in this case. At trial, defense counsel decided that allowing the prosecutor to “clean up” the error rather than having the trial court do so was a wiser approach. Smith cannot complain on appeal of the response made at his counsel’s request. In these circumstances, the doctrine of invited error applies to preclude reversal on appeal. (People v. Cooper (1991) 53 Cal.3d 771, 827, cert. den. sub nom. Cooper v. California (1991) 502 U.S. 1016; People v. Lara (1994) 30 Cal.App.4th 658, 673; see People v. Lucero (2000) 23 Cal.4th 692, 723-724, cert. den. sub nom. Lucero v. California (2001) 531 U.S. 1192.)¹⁸

18 As the trial court noted, Smith preserved his right to challenge the sufficiency of the prosecutor’s retraction. However, Smith’s argument on appeal is not that the prosecutor failed to retract enough, but that it did too much. As such, the invited error doctrine appears to apply. Even if we assume arguendo that the error was not invited, we would find no prejudice resulting from any error, because we are satisfied that the prosecutor cured that error by his retraction.

2. Griffin Error

Smith also complains that the prosecutor made other statements about his defense that the jury could have reasonably interpreted as highlighting his decision not to testify. A prosecutor may not comment on a defendant’s decision to exercise his or her Fifth Amendment privilege against self-incrimination and opt not to testify at trial. (Griffin v. California (1965) 380 U.S. 609, 612-615; see U.S. Const., 5th & 14th Amends.) At trial, the prosecutor challenged the credibility of Smith’s alibi that he was at church at the time of the shooting, arguing that he would have “been better off saying he was out picking up [marijuana] he said he was going to bring out there, because that’s who he was at that time, and that’s what he was doing.” He argued that it was incredible that Smith would tell a child to be quiet before he killed a man in that child’s presence and “then . . . come in and say you were in church, or have people say you were in church.” He reminded the jury that “no one has come before you and said [Smith] wasn’t the shooter. They said ‘I believe he was in church,’ or ‘He was in church, I remember it now.’ ” The prosecutor contrasted those who vividly recalled witnessing Smith kill Dotson and those who tried to remember seeing Smith at church on a “nondescript” day, asking which set of recollections was likely to be more reliable. The prosecutor challenged the jury to hold Smith accountable for Dotson’s murder, arguing that the alibi that he was sitting in church at the time of the shooting “doesn’t hold water.”

On appeal, Smith contends that each of these arguments could have been interpreted by the jury as a reference to his decision not to testify. He cannot raise a prosecutorial misconduct claim of error on appeal based on these aspects of the closing arguments because his trial counsel did not object to them. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.) To the extent that Smith raises an ineffective assistance of counsel claim based on this failure to object, we find that the prosecutor did not make any argument warranting the objection of a reasonably competent attorney. Each of the challenged arguments was an appropriate comment on the defense evidence, rather than an inappropriate comment on Smith’s failure to testify. A prosecutor has a wide-ranging right to discuss the case in closing argument, including stating what the evidence shows and urging whatever conclusions he or she deems proper to draw from that evidence. (People v. Thomas (1992) 2 Cal.4th 489, 526, cert. den. sub nom. Thomas v. California (1993) 506 U.S. 1063 (Thomas).) Trial counsel’s failure to object to appropriate argument is not unreasonable for purposes of any ineffective assistance of counsel claim of error. (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)¹⁹

19 We also note that the jury was specifically instructed not to draw any inference from Smith’s decision not to testify. (See CALJIC No. 2.60.)

3. Weakened Burden of Proof

Smith also argues that when the prosecutor equated reasonable doubt with common sense, he weakened the People’s burden of proof. The federal Constitution requires that the prosecution prove every fact necessary to constitute the crime with which a criminal defendant is charged. (In re Winship (1970) 397 U.S. 358, 364; see U.S. Const., 5th & 14th Amends.) If a prosecutor’s argument suggests that the People do not have the burden of proof beyond a reasonable doubt, it can constitute misconduct. (People v. Hill, supra, 17 Cal.4th at p. 831.) Misconduct occurs if a prosecutor equates reasonable doubt to everyday decisions such as changing lanes while driving or choosing a restaurant. (Nguyen, supra, 40 Cal.App.4th at pp. 35-36; see People v. Johnson, supra, 119 Cal.App.4th at pp. 985-986 [jury instruction].) These everyday decisions are more akin to the lower preponderance of evidence standard than the higher reasonable doubt standard. (People v. Brannon (1873) 47 Cal. 96, 97; Nguyen, supra, 40 Cal.App.4th at p. 36.)

In the trial court, the prosecutor encouraged the jurors not to get “lost in legalese” when trying to determine what was meant by the term “reasonable” for purposes of the reasonable doubt standard. He argued that a determination of what was “reasonable” required only the application of common sense. He asked the jury “Does your common sense and your gut tell you that this defendant is guilty based upon the entire comparison of every piece of evidence you’ve heard in this case? When you wake up in the morning, you know that this defendant is guilty. That’s all it is. It’s not a magical standard.” The prosecutor reminded the jury that they heard witnesses say that they saw Smith shoot Dotson, noting that “that abiding conviction is common sense. It’s in your gut.”

On appeal, Smith urges us to conclude that this likening of reasonable doubt to common sense was akin to everyday decision arguments that trivialize the reasonable doubt standard. He contends that this argument constituted prosecutorial misconduct. Trial counsel did not object to this argument on prosecutorial misconduct grounds, so Smith may not raise this claim of error on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.)

Smith also contends that trial counsel was ineffective for failing to object to this argument. We reject this claim of error, finding no misconduct warranting an objection flowed from urging the jury to rely on their intuitive sense of the defendant’s guilt or innocence. (See, e.g., People v. Barnett (1998) 17 Cal.4th 1044, 1156-1157, cert. den. sub nom. Barnett v. California (1998) 525 U.S. 1044 [“gut feeling” argument proper]; Rodrigues, supra, 8 Cal.4th at p. 1126.) Even if we assume arguendo that the prosecutor misstated the reasonable doubt standard, the trial court’s jury instructions on the reasonable doubt standard, the prosecution’s burden of proof based on it, and the specific injunction to ignore any contrary argument would have cured any error. (See Nguyen, supra, 40 Cal.App.4th at pp. 36-37; see also CALJIC Nos. 1.00, 2.90, 2.91.) As Smith cannot establish prejudice, he cannot establish ineffective assistance of counsel. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)

4. Accusation of Lying

At trial, the prosecutor argued that defense counsel should explain why Rodriguez would lie and falsely accuse Smith of killing Dotson. Calling the jury’s attention to Smith’s admission that he killed Dotson, the prosecutor then noted that five key witnesses had corroborated this statement. He told the jury that defense counsel should explain how Bostic, Attaway, Armstrong, Hampton and Rodriguez “independently, at different dates and times, all reported to the police that [Smith was] the murderer.”

On appeal, Smith asserts that this argument improperly shifted the burden of proof from the People to him by requiring the defense to explain the reason for any doubt about his guilt. Argument that relieves the prosecution of the burden of proving each element of the charged offense beyond a reasonable doubt may violate the defendant’s due process rights. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278 [instructional error].) However, trial counsel’s failure to object to this argument precludes Smith from raising this issue on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.)

He also complains that defense counsel was ineffective for failing to make this objection. We disagree with Smith’s underlying characterization of the prosecutor’s argument. Our reading of the record satisfies us that the prosecutor merely challenged defense counsel to rebut the persuasiveness of this evidence. There is no reasonable likelihood that any juror would have understood that the prosecutor asked the jury to require Smith to prove that he was innocent. (See People v. Samayoa (1997) 15 Cal.4th 795, 841, cert. den. sub nom. Samayoa v. California (1998) 522 U.S. 1125.) As the argument was proper, trial counsel did not act in an unreasonable manner by failing to object to it. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)

5. Ultimatum to Jurors

Smith also contends that the prosecutor committed misconduct by effectively giving the jurors an ultimatum—they had to convict him unless they found that the key prosecution witnesses were all liars. At trial, the prosecutor noted the jury had to decide which version of Smith’s whereabouts on the morning of Sunday, June 9, 2002, was more credible—that offered by the prosecution or that offered by the defense. He was “either out committing cold-blooded murder, or [he was] in church.” Some witnesses—the prosecutor argued—said that when Dotson was killed, Smith was “in church,” but others placed him at “84th and Dowling, committing cold-blooded, first-degree murder. [¶] There is no in-between point.” He argued that there was no evidence corroborating the defense testimony placing Smith at church at the time of the shooting. He also argued that the prosecution witnesses had no reason to lie about Smith being Dotson’s shooter. He reasoned that defense witnesses who provided Smith with an alibi did not realize that his whereabouts on June 9, 2002, were important until several years after the shooting. He contrasted these witnesses with those from the prosecution who saw Dotson killed that day.

On appeal, Smith argues that the prosecutor created a false dichotomy when telling the jurors that they either believed that he was in church or they believed that he killed Dotson. As his trial counsel raised no prosecutorial misconduct objection to any of these arguments, he cannot raise this claim of error on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.) Smith also raises an ineffective assistance of counsel claim, urging us to find that defense counsel should have objected to this testimony. We reject his interpretation of the argument as an ultimatum. The prosecutor drew appropriate contrasts between the credibility of the two versions of events. In so doing, the challenged comments on this case fell within the prosecution’s proper scope of argument. (See Thomas, supra, 2 Cal.4th at p. 526.) Trial counsel’s failure to object to appropriate argument does not constitute ineffective assistance of counsel. (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

6. Impermissible Burden on Jurors

Next, Smith argues that the prosecutor placed an impermissible burden on the jurors by asking them in the event of an acquittal to explain to him why the prosecution witnesses would lie. At trial, the prosecutor told the jury that if they did not believe that the case was proven beyond a reasonable doubt, they were required to acquit Smith. If they did not believe the prosecution witnesses, the prosecutor told the jury to “send [Smith] home. Give him his gun back and send him home. Based upon this evidence, that’s what the law says you must do. But before you do that, you have to still explain to me why five people would come forward and say stuff that is different—some similar—but they all point to [Smith], coming from different directions. [¶] Because that just doesn’t happen.” He argued that the testimony of his five key witnesses pointed to a verdict of guilt.

Again, trial counsel did not object to any aspect of this testimony on prosecutorial misconduct grounds, so Smith may not raise this claim of error on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.) We also reject his ineffective assistance of counsel claim that trial counsel should have objected on this basis. The language used by the prosecutor was not meant as a literal request for an explanation, but as a means of conveying to the jury his sense of the strength of his case. It fell within the proper scope of prosecution argument and thus, it was reasonable for defense counsel not to object to it. (Rodrigues, supra, 8 Cal.4th at p. 1126; Thomas, supra, 2 Cal.4th at p. 526; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

7. Giving Defendant His Gun Back

Smith raises another complaint about this argument, urging us to conclude that the prosecutor’s invitation to “give him his gun back and send him home” drew the jurors’ attention to the consequences of its verdict, misstated the law and constituted an appeal to prejudice. Trial counsel did not object to this argument on prosecutorial misconduct grounds, so it has been waived on appeal. (See, e.g., Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.) As Smith contends that trial counsel was ineffective for not objecting to this argument, we address it.

Smith argues that drawing the jurors’ attention to the consequences of a verdict is an extraneous consideration that has no part of any deliberations. He claims that the argument constituted a misstatement of the law, as an ex-felon cannot lawfully possess a firearm.²⁰ (See § 12021.) He also challenges this argument as an appeal to prejudice, attempting to arouse aversion toward a verdict that might release him to victimize others.²¹ Assuming arguendo that this isolated remark constituted misconduct, we are satisfied that it is not reasonably probable that the result of the proceeding would have been different if counsel had objected to this argument. (See Maury, supra, 30 Cal.4th at p. 389; Thomas, supra, 2 Cal.4th at p. 526.) As such, Smith cannot establish the necessary prejudice to carry his burden of proof of ineffective assistance of counsel. (See Rodrigues, supra, 8 Cal.4th at p. 1126; People v. Ledesma, supra, 43 Cal.3d at p. 218.)

20 The jury was instructed on the law banning an ex-felon from possessing a firearm. (See CALJIC No. 12.44.)

21 The jury was instructed not to be influenced by prejudice or passion. (See CALJIC No. 1.00.)

8. Vouching for Bostic

Next, Smith contends that the prosecutor improperly vouched for Bostic. During argument, the prosecutor noted that while most people who are linked to a crime attempt to distance themselves from it completely, Bostic admitted that he sold the murder weapon. The fact that this admission linked Bostic to a crime made his testimony more credible, the prosecutor argued. Smith’s trial counsel raised no prosecutorial misconduct objection to this argument, so the defendant may not raise this issue on appeal. (See Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.) However, we consider his related ineffective assistance of counsel claim that his attorney should have objected on this basis.

A prosecutor’s impermissible vouching is typically based on reference to facts outside the record in support of the witness’s testimony. Reliance on facts in the record and on reasonable inferences to be drawn from them, rather than any purported personal knowledge or belief, is not improper. (People v. Frye (1998) 18 Cal.4th 894, 971, cert. den. sub nom. Frye v. California (1999) 526 U.S. 1023; People v. Medina (1995) 11 Cal.4th 694, 757, cert. den. sub nom. Medina v. California (1996) 519 U.S. 854.) We view the argument made as one suggesting that an admission against interest is more credible than another admission might be. An admission against interest is generally viewed as trustworthy because it exposes the declarant to criminal liability. (See Evid. Code, § 1230.) We are satisfied that this is a proper inference to ask the jury to draw, based on a juror’s common knowledge of human nature. As no impermissible vouching occurred, trial counsel was not ineffective for failing to object to it. (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

9. Vouching for Inner City Witnesses

Smith also contends that the prosecutor improperly vouched for his inner city witnesses when he argued that once they overcome the their initial reluctance to talk to the police, “the truth does emerge because they know” what happened. The lack of a prosecutorial misconduct objection to this argument bars Smith from raising this issue on appeal. (See Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.)

In his related ineffective assistance of counsel argument, Smith contends that trial counsel should have made such an objection. Smith reasons that the jurors could only have understood this argument as one based on the prosecutor’s experience with other Oakland witnesses. We disagree. This argument does not rely on the prosecutor’s personal knowledge, but on the reluctance of some persons to report criminal offenses to police, because to do so can be dangerous or “unhealthy.” This is a matter of common knowledge, which is an appropriate basis for argument. (People v. Wharton (1991) 53 Cal.3d 522, 567, cert. den. sub nom. Wharton v. California (1992) 502 U.S. 1038.) The prosecutor’s argument fell within the wide scope of proper comment on the credibility of evidence. (See Thomas, supra, 2 Cal.4th at p. 526.) Smith has not established any ineffective assistance of counsel resulting from trial counsel’s failure to raise a prosecutorial misconduct objection in the face of conduct that did not constitute misconduct. (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

10. Personally Finding Evidence

Next, Smith complains that the prosecutor vouched for his case by implying that he was personally involved in the production of evidence. At trial, the prosecutor contrasted the defense witnesses’ uncorroborated alibi testimony with evidence that he found to corroborate Attaway’s testimony. He stated: “I find the 911 tape with Michael Attaway’s voice on it.” Although trial counsel’s failure to object bars Smith from raising this issue directly, we address it in order to resolve his related ineffective assistance of counsel claim.

If a prosecutor becomes personally involved in the production of evidence, that participation is akin to that of a witness and is improper. (Rules Prof. Conduct, rule 5-210; see Smith, Smith & Kring v. Superior Court, supra, 60 Cal.App.4th at p. 578; see also pt. II.C.4., ante.) We may not lightly infer a damaging interpretation of an argument from an isolated, imperfect statement made by a prosecutor. (Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 646-647.) In this case, there was no evidence that the prosecutor had actually located the 911 tape. Our sense of the argument is that it was not intended to be taken literally. Viewed in this manner, the argument did not put the prosecutor in the role of a witness who found the 911 tape, but was a rhetorical device to contrast the relative levels of corroboration of the defense and prosecution witness testimony. It is not reasonably likely that the jurors would have viewed the evidence in the manner that Smith suggests on appeal. (See Thomas, supra, 2 Cal.4th at p. 526.) Thus, trial counsel was not unreasonable in failing to object to this argument.²² (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

22 For the same reasons, we reject Smith’s related claim that the prosecutor injected himself into the trial by noting that “I” looked for a particular witness but that “I” could not find her.

11. Impossibility of Error

Smith also contends that the prosecutor engaged in misconduct when arguing that it “just doesn’t happen” that five witnesses would all lie when they pointed him out as the killer. Again, he raised no prosecutorial misconduct objection in the trial court. (See pt. II.C.6.-7., ante.) He may not raise this issue directly on appeal, but we consider his related ineffective assistance of counsel claim. (See Valdez, supra, 32 Cal.4th at p. 122; Nguyen, supra, 40 Cal.App.4th at p. 36.)

Smith argues that the prosecutor improperly bolstered the credibility of his witnesses based on his experience with Oakland crime, rather than the evidence offered at trial. He reasons that the jury could only have understood this argument as based on his experience and as a personal vouching for his witnesses. We disagree. In our view, there was no substantial danger that the jurors would interpret the prosecutor’s argument as being based on information that was in his control but that he did not adduce at trial. (See People v. Fauber, supra, 2 Cal.4th at p. 822.) As the argument was not improper, trial counsel was not ineffective for failing to object to it. (Rodrigues, supra, 8 Cal.4th at p. 1126; see People v. Lewis, supra, 50 Cal.3d at p. 289.)

12. Reference to Hit List

Next, Smith argues that the prosecutor engaged in misconduct when he referred to a hit list. (See pt. II.B.2., ante.) At trial, Hampton denied witnessing the Dotson shooting, making a statement to police, or identifying Smith as the killer. This testimony was impeached by evidence of his earlier statement to police and by law enforcement testimony. In response to prosecution questioning, Hampton specifically denied knowing that a list of witnesses in this case had been threatened or that a reward had been offered for killing any of these witnesses. He also denied being reluctant to testify because of his inclusion on this list. The trial court allowed this aspect of Hampton’s testimony to be admitted for the limited purpose of establishing his state of mind. The jury was specifically admonished not to consider this as evidence that Smith himself had made these threats. This admonition was repeated during the formal jury instructions. (See CALJIC No. 2.09.) During closing argument, the prosecutor spoke of Hampton’s testimony about “evidence . . . that came in . . . [of a] $10,000 hit list out on the witnesses,” reminding the jury that it could only use this evidence to explain Hampton’s reluctance to testify.

On appeal, Smith contends that this argument constituted prosecutorial misconduct because the underlying fact of a hit list was not in evidence. Referring to facts that are not in evidence is misconduct because these statements tend to place the prosecutor in the role of a witness. (People v. Hill, supra, 17 Cal.4th at pp. 827-828.) Trial counsel did not object to this aspect of the closing argument, barring us from considering the merits of it on appeal. (See Valdez, supra, 32 Cal.4th at p. 122.) However, we consider it as it bears on Smith’s related ineffective assistance of counsel claim.

There was no evidence admitted at trial of any hit list—only Hampton’s denial to questions about one. The prosecutor’s questions about the list were not evidence, and the jury was instructed not to assume that any insinuation suggested by a question to a witness was true. (See CALJIC No. 1.02.) This general instruction does not appear to us to be sufficient to preclude a finding of error, given the potential impact of worthless unsworn evidence. (See People v. Hill, supra, 17 Cal.4th at p. 828.) Thus, we find that a reasonably competent attorney would be expected to have objected to this argument.

In order to establish ineffective assistance of counsel warranting reversal of his conviction, Smith must show that it is reasonably probable that the result of the proceeding would have been different if counsel had objected to this argument. (See Maury, supra, 30 Cal.4th at p. 389; Thomas, supra, 2 Cal.4th at p. 526.) Smith’s prejudice claim assumes that the jury concluded on the basis of this unsworn evidence that he himself was responsible for a hit list. However, the trial court admonished the jury and later instructed it not to use Hampton’s responses as evidence that Smith had created a hit list. Even if we assume that the jury believed that there was evidence of a hit list, we presume that it followed the trial court’s limiting instruction and did not consider the underlying testimony as evidence that Smith instigated it. (See People v. Bruce (1989) 208 Cal.App.3d 1099, 1106.) Thus, Smith has not established the prejudice required to warrant a finding of prejudicial ineffective assistance of counsel. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)

13. Weapon Possession

Smith also complains that the prosecutor improperly commented on his 2004 weapon possession during closing argument. (See pt. II.B.3., ante.) The prosecutor noted that his girlfriend Machelle Stevens denied any knowledge of Smith’s drug activities or the presence of a loaded gun under the mattress that she slept on. He reasoned that Smith would not keep a weapon where their three small children had access to it unless he was worried—not about the people at his church—but about the people he dealt with on the street. On appeal, Smith argues that this argument constituted improper “other crimes” or bad character evidence. (See Evid. Code, § 1101, subd. (a).)

His trial counsel did not object to this argument, precluding him from raising this issue on appeal. (See Valdez, supra, 32 Cal.4th at p. 122.) We consider this issue on the merits because Smith also raises a related ineffective assistance of counsel claim. This claimed error is related to Smith’s assertion that evidence of the 2004 gun possession was improperly admitted—a claim we have already rejected. (See pt. II.B.3., ante.) The evidence of the 2004 gun possession was properly admitted to challenge Stevens’s credibility. The prosecutor’s argument was not an improper reference to Smith’s bad character, but an appropriate comment on the lack of credibility of his alibi. The possession of a loaded weapon in Smith’s home tends to support the theory that he was more involved in drug sales than church activities. As this argument was within the proper scope of closing argument, trial counsel did not fall below the standard of a reasonably competent attorney by failing to object to it.²³ (Rodrigues, supra, 8 Cal.4th at p. 1126; see Thomas, supra, 2 Cal.4th at p. 526.)

23 Even if we assume arguendo that this argument was improper, trial counsel had a tactical reason not to object to it, in order to avoid drawing attention to Smith’s 2004 possession of a loaded firearm. (See Strickland, supra, 466 U.S. at p. 689.)

14. Appeal to Passion and Prejudice

In his final claim of prosecutorial misconduct, Smith contends that the prosecutor made various improper appeals to the jury’s passion and prejudice. At trial, the prosecutor asked the jurors, as members of the local community, to let Smith know that they would not allow violence to happen. The only way to make that point, he urged, was for the jurors to find Smith guilty of first degree murder. He argued that the case was about accountability. He reasoned that one living in any Oakland neighborhood should be able to walk outside on a Sunday morning and talk with friends without being shot. Regardless of the history between Smith and Dotson, the prosecutor urged the jury not to let them “deal with their own issues in this manner, because innocent people get hurt. . . . [I]t’s up to you to decide: When does this stop? When . . . as a community [do] we say ‘no more.’ ‘No more.’ [¶] We’re not going to allow people to just come out of a car at 11:30 on a Sunday morning and just start firing rounds into a neighborhood.”

The prosecutor also noted that in Oakland, young people lose their innocence at an early age. The “kids standing there on a Sunday morning, looking at a dead body . . . ended their age of innocence. That seven-year-old boy who the defendant told to be quiet before he opened up on [Dotson], is now probably, in terms of life, 22, 23 years old, because he’s seen stuff he shouldn’t have had to see at such a young age. And that should never be acceptable.” He told the jury that “[We] can have all the community meetings you want about the violence we’re facing in their communities. You can have all the town hall meetings you want. You can have all the outrage on the news, but make no mistake about it, this is where the rubber meets the road. [¶] This is where true accountability lies, true answers lie. And you, as members of the jury, represent the community. . . . The truth lies with you . . . .” The prosecutor closed his argument by asking the jurors to “deliver justice” by finding Smith guilty as charged.

On appeal, Smith argues that each of these arguments was an appeal to the passions and prejudice of the jurors, constituting prosecutorial misconduct. It is improper for a prosecutor to make an appeal to the jury’s passion and prejudice. (People v. Cornwell (2005) 37 Cal.4th 50, 92-93, cert. den. sub nom. Cornwell v. California (2006) 546 U.S. 1216; People v. Kipp (2001) 26 Cal.4th 1100, 1129-1130, cert. den. sub nom. Kipp v. California (2002) 537 U.S. 846 [focus on victim].) However, defense counsel raised no objection to any of these arguments, barring our consideration of Smith’s prosecutorial misconduct claim. We consider the merits of this argument with regard to Smith’s related claim of ineffective assistance of counsel. (See Valdez, supra, 32 Cal.4th at p. 122.)

Appeals to passion and prejudice invite jurors to depart from their duty to view the evidence objectively and, instead, to allow sympathy for victims to influence their verdict. (See People v. Fields (1983) 35 Cal.3d 329, 362, cert. den. sub nom. Fields v. California (1984) 469 U.S. 892.) However, no reasonable juror would have construed the prosecutor’s remarks as an exhortation to follow community sentiment rather than their own judgment about Smith’s guilt or innocence. (See People v. Lang (1989) 49 Cal.3d 991, 1041, cert. den. sub nom. Lang v. California (1990) 498 U.S. 881.)

Even if we assume arguendo that the argument was improper, no prejudice resulted from defense counsel’s failure to object to it. (See Rodrigues, supra, 8 Cal.4th at p. 1126.) The trial court instructed the jury not to base its decision on sympathy, passion and prejudice. (See CALJIC No. 1.00.) In fact, the jurors did not find Smith guilty of first degree murder as the prosecutor urged, but convicted him only of a lesser offense. These circumstances convince us that the jury was not overcome with passion or prejudice, but required the prosecution to prove its case against Smith beyond a reasonable doubt. Thus, Smith cannot establish this ineffective assistance of counsel claim. (See Rodrigues, supra, 8 Cal.4th at p. 1126.)

III. Judicial Misconduct

A. General Considerations

Next, Smith contends that the trial court’s intervention during questioning of several prosecution witnesses constituted judicial misconduct. He reasons that the trial court’s conduct violated his constitutional right to a fair trial before an impartial judge. (See U.S. Const., 6th & 14th Amends.) Before addressing his specific concerns on appeal, we set out the applicable legal principles. A trial court has a duty to control the proceedings and to assure that ambiguities in the evidence are resolved if possible. (People v. Sturm (2006) 37 Cal.4th 1218, 1233, 1237; People v. Carpenter (1997) 15 Cal.4th 312, 353, cert. den. sub nom. Carpenter v. California (1998) 522 U.S. 1078; People v. Raviart (2001) 93 Cal.App.4th 258, 270; see § 1044; Evid. Code, § 765, subd. (a).) Considerable latitude is allowed as long as the judge provides a fair trial to both defense and prosecution. The judge has the final responsibility to discover the truth in order to assure that justice is done. (People v. Raviart, supra, 93 Cal.App.4th at p. 270.)

While discharging these legitimate responsibilities, the trial court may not officiously and unnecessarily usurp a prosecutor’s duties and thereby create an impression that it is allied with the prosecutor. (People v. Clark (1992) 3 Cal.4th 41, 143, cert. den. sub nom. Clark v. California (1993) 507 U.S. 993.) Jurors rely on the fairness of trial judges. (People v. Sturm, supra, 37 Cal.4th at p. 1233.) As an appellate court, it is our duty to review the record and determine whether the trial court committed misconduct. (See People v. Clark, supra, 3 Cal.4th at p. 143.)

Typically, if the defense fails to object to any improper judicial conduct, it forfeits the right to raise any claim of judicial misconduct on appeal. (People v. Sturm, supra, 37 Cal.4th at p. 1237; People v. Hines, supra, 15 Cal.4th at p. 1041; People v. Fudge (1994) 7 Cal.4th 1075, 1108, cert. den. sub nom. Fudge v. California (1995) 514 U.S. 1021.) Smith acknowledges that trial counsel failed to object to any of the alleged instances of judicial misconduct that he now challenges on appeal. He argues that the forfeiture rule should not apply because it would have been futile for defense counsel to object. The lack of an objection does not constitute a forfeiture of the right to raise an issue on appeal if an objection would have been futile, or if an objection and admonishment could not cure the prejudice resulting from any misconduct. (People v. Sturm, supra, 37 Cal.4th at p. 1237; see People v. Hill, supra, 17 Cal.4th at p. 820; People v. Perkins (2003) 109 Cal.App.4th 1562, 1567; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648-649.)

We need not determine whether defense counsel should be excused from making any objection on futility grounds, because Smith’s related ineffective assistance of counsel claims require us to address the merits of these claims of error in any case. In each ineffective assistance of counsel claim, Smith argues that his trial counsel’s conduct fell below a reasonably objective standard when she failed to raise objections to the trial court’s conduct. We have already set out the analysis to be applied when a defendant claims that he or she suffered from ineffective assistance of counsel at trial. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389; see also pt. II.A., ante.)

We also set out our general interpretation of the trial record, which differs significantly from that suggested by Smith. It is clear that the trial judge was an active participant in the trial, querying several witnesses. Most of the judge’s questions and comments appear to us to have been intended to clarify counsel questions or witness testimony. Typically, the judge questioned hostile or evasive witnesses who had already proven difficult for counsel to examine. The judge appears to have been even-handed when doing so. Some of the judge’s comments were even supportive of the defense. (See People v. Sturm, supra, 37 Cal.4th at p. 1241 [unequal treatment creates impression that trial court allied with prosecution].) With this assessment of the underlying facts and the key legal principles as our backdrop, we address the specific errors that Smith raises in his appeal.

B. Hampton

Smith contends that when the trial court intervened during the prosecutor’s examination of Hampton to clarify his answers, it did so in a manner that signaled to the jury that it found the witness to be incredible. At trial, Hampton denied making a statement to police about the Dotson shooting, which he testified that he did not witness. Aspects of Hampton’s March 2004 statement were recounted to the jury to impeach this testimony. When he denied having identified Smith in a photographic lineup and disavowed the signature on it as his own, the trial court asked: “Does that signature that’s not yours look like how you make your signature?” Hampton testified that it did not.

Later, when the prosecutor asked if he was afraid to tell the truth, Hampton replied that he was telling the truth. The trial court then began to question Hampton, first asking if his testimony was that he knew nothing about the case and never talked to police about it. He said no. “Did you ever talk to them just to tell them you didn’t know anything about it?” Again, Hampton said no, adding that every time the police tried to contact him, he “shook them off.” The trial court asked if he recalled the police trying to contact him. Hampton said yes, repeating that he “shook them off.” The trial court asked how many times this happened; Hampton said they came to see him “once, twice.” “And you never told them that you knew anything about the case at all?” the trial court asked. Hampton denied that he had done so. Then, the trial court stated: “Both sides agree he’s totally denied everything. You don’t have to ask any more specifics.” Defense counsel stipulated that this was so and the prosecutor announced that his direct examination was complete.

On appeal, Smith argues that the trial court took over the questioning of an uncooperative witness, although it was unnecessary to do so. He also contends that the manner of questioning created the impression that the trial court was aligned with the prosecution. We disagree with this assessment of the record. (See People v. Clark, supra, 3 Cal.4th at p. 143.) The trial court’s questions were attempts to clarify the testimony of a reluctant prosecution witness, expediting the elicitation of foundational facts. Facilitating the expeditious ascertainment of evidence is a trial court responsibility. (See § 1044.) Viewed in this context, its questioning was a reasonable exercise of the trial court’s control over witness interrogation to be rapid, distinct and effective after it became apparent that at trial, Hampton would not offer any substantive testimony about the shooting. (See Evid. Code, § 765, subd. (a).) We find that the trial court did not commit misconduct in its questioning of Hampton.

C. Rodriguez

Smith also asserts a claim of judicial misconduct with regard to the trial court’s questioning of Rodriguez. During direct examination, the prosecutor asked Rodriguez about his recollection of various aspects of his February 2004 statement to police. After reading part of his statement into the record, the prosecutor asked if Rodriguez recalled “being asked that by the Oakland [P]olice [D]epartment and giving those answers.” He said no. The trial court then asked a series of questions about whether Rodriguez’s denial meant that he did not recall speaking with police or did not recall giving the quoted answers. Rodriguez testified that he remembered talking with police but did not remember making the cited responses.

In response to further prosecution questioning, Rodriguez testified that he could not recall all the people that he saw on the date of the shooting. The court then asked, “Whether you do or don’t recall everybody that you saw, did you see Mr. Bostic that day?” Rodriguez said no. “Whether you recall everybody that you saw, did you see Mr. Smith that day? Again, Rodriguez said no. The trial court then asked whether, when he said no, he meant “that you didn’t see them there, or you don’t remember?” Rodriguez said that he did not remember seeing them.

The prosecutor asked Rodriguez whether he told the police that Bostic had been driving the car that carried Smith to the murder scene. The witness balked at answering that question in the absence of counsel. The trial court told Rodriguez: “I cannot think of a way that the Sixth Amendment would play into whether or not you witnessed something. Now, if [the prosecutor] gets to other issues, you have a right to an attorney here . . ., but there is no Sixth Amendment issue on what you did or didn’t see, so I’m going to allow him to continue asking those questions, and any witness should be expected to answer them.”

On appeal, Smith contends that this exchange created the impression with the jurors that the trial court was using its authority to assist the prosecutor in extracting helpful testimony from Rodriguez. We disagree. (See People v. Clark, supra, 3 Cal.4th at p. 143.) The trial court’s inquiries about responses that Rodriguez made to questions about his statement to police helped to clarify the meaning of ambiguous testimony. These questions fell within the trial court’s authority to assist in the ascertainment of truth. (See People v. Fudge, supra, 7 Cal.4th at p. 1108; see § 1044.) Its explanation of Rodriguez’s Sixth Amendment right to decline to respond to the prosecutor’s questions was legally accurate and an even-handed explanation of the rights and responsibilities of “any witness,” not just those testifying for the prosecution. (See People v. Sturm, supra, 37 Cal.4th at p. 1241; People v. Raviart, supra, 93 Cal.App.4th at p. 270.) This admonition fell within the trial court’s responsibility to control the trial proceedings. (See § 1044.) We are satisfied that no judicial misconduct occurred during Rodriguez’s examination.

D. Armstrong

Smith also contends that the trial court committed misconduct during Armstrong’s testimony. Armstrong may have been the most reluctant witness in a crowd of unwilling trial participants. He began by declining to answer the first question he was asked—the simple query whether he even knew Dotson—stating that he would rather not talk about the case. When defense counsel failed to understand this response, the trial court explained that he did not want to “go through with this procedure.” Then, the trial court ordered Armstrong to answer the question, asking him if he knew Dotson. Armstrong replied that he did not remember. The prosecutor asked whether Dotson was a good friend of his, Armstrong evaded the question by stating that he knew “a lot of people.”

The trial court then asked if Armstrong had “had any accidents in the last couple of years that have affected your memory in any way, an automobile accident, a blow to the head, anything like that?” Armstrong admitted that he took antidepressant medication, but—in response to further trial court questioning—stated that it did not affect his memory. In response to the prosecutor’s next series of questions about people and events, Armstrong repeatedly replied that he did not recall any of them. He appeared to grudgingly admit that he had testified at the preliminary hearing. The trial court halted the prosecutor’s questioning, asking questions of Armstrong himself. “Do you remember—with the apparent inability to remember, I don’t want any overloads. Do you remember being asked those questions a couple of years ago [¶] . . . [¶] while on the stand in a courtroom and giving those answers?” Armstrong said that he did not remember the questions.

In a series of questions, the trial court pried from Armstrong the reluctant admission that he had once testified in court about Dotson’s murder. The trial court, in an attempt to “move it along,” cautioned the witness to tell the truth as best he recalled it. “Saying you don’t remember when you do remember doesn’t change the fact you do remember and you’re not telling the truth.” Armstrong replied that he did not remember “a whole lot of things.” To this, the trial court commented that the prosecutor would only be “asking you what do you remember, and so far that seems to have improved to the point [that] we know you know [Dotson].”

The prosecutor asked two questions, the first eliciting an “I don’t remember” and the second garnering no response at all from Armstrong. The prosecutor asked the trial court to instruct the witness to answer, prompting a trial court inquiry about whether Armstrong heard the question. Armstrong began answering some of the questions he was asked. At one point, he asked the prosecutor, “Are you finished yet, can I go?” The trial court responded: “I’m sure you are not done; and, no, you aren’t going to be able to go. [¶] . . . [¶] It will be a while.”

Armstrong testified that he did not recall telling the police that he had seen Smith at the apartment complex. The trial court asked if he remembered saying anything about a June 9, 2002 homicide, prompting Armstrong to reply “Not to my knowledge.” “Have you ever seen—been a witness to a homicide, a shooting of one person on another person ever in your life?” Armstrong said that he had witnessed “a lot of things.” The trial court then asked how many “deaths by shooting have you witnessed?” Armstrong said none, that he had never seen anyone shot. “Have you ever heard shots and then seen somebody that appeared to have bullet holes in them?” the trial court inquired. Armstrong said no. Later, the trial court queried Armstrong about how long he testified at the preliminary hearing. Still later, the trial court asked a series of question clarifying Armstrong’s recollection of an interview that the prosecutor and his investigator had with Armstrong in jail a month before trial.

At this point, the trial court embarked on a series of broad questions to Armstrong—whether he remembered anything that he said at the preliminary hearing, anything that he told the police, or anything he saw about Dotson’s death. The court also asked if Armstrong remembered anything about seeing Smith with a weapon or committing any violent act. To all of these questions, Armstrong said no. The trial court stated that it “wanted to cover the broad slate, and whether either side later on wants to bring up something more specific. Both sides agree that the broad slate covers these specifics.” Both counsel agreed with the trial court’s assessment.

On appeal, Smith argues that these questions to Armstrong communicated a pro-prosecution partiality to the jury, to his detriment. Our sense of this judicial questioning is different. (See People v. Clark, supra, 3 Cal.4th at p. 143.) Armstrong was the fourth of the five key witnesses to testify for the prosecution. Some of these earlier witnesses had already tested the patience of the trial court—and, we suspect, the jurors—before Armstrong began his testimony. (See pt. III.B.-C., ante.) That testimony began badly—the questioning from the prosecutor and the trial court that ultimately prompted him to answer the prosecutor’s first, purely foundational question fills five pages of reporter’s transcript.

By the time Armstrong came onto the witness stand, the trial court had already intervened on behalf of Smith’s counsel during her cross-examination of another witness. This level practice of intervention tends to dispel any sense that the trial court was favoring the prosecution by its questions of and comments to prosecution witnesses. (See People v. Carpenter, supra, 15 Cal.4th at pp. 352-353; People v. Fudge, supra, 7 Cal.4th at p. 1107.) Viewed in context, the trial court’s inquiries seem to have been motivated by a desire to expedite the proceedings or to clarify some of Armstrong’s more ambiguous replies. As such, they were proper. (See People v. Fudge, supra, 7 Cal.4th at pp. 1107-1108; see § 1044; Evid. Code, § 765, subd. (a).) We are satisfied that no judicial misconduct occurred during the Armstrong examination.

IV. Evidentiary Objections

A. Evidence of Fear

1. Roddy-Rod’s Fear

Smith raises several objections to the trial court’s admission of evidence. First, he contends that the trial court erred by admitting evidence that Roddy-Rod was afraid of him. During cross-examination, defense counsel asked Attaway if he saw a person named Roddy-Rod in the area of the Dotson shooting. Attaway testified that Roddy-Rod had been standing next to Dotson. When a car went by, Roddy-Rod went into the house “because he had got scared.” Defense counsel objected to the last part of the answer, reasoning that Attaway might not know why Roddy-Rod went into the house. Before the trial court could rule on this objection, Attaway said that he did know why Roddy-Rod went inside. Ultimately, the trial court overruled the objection, allowing Attaway to offer an opinion based on his sense of “what [was] going on there and why he would assume that he would do that. . . .” Then, in response to defense counsel’s query “Why was Roddy-Rod scared?” Attaway said that Roddy-Rod was scared of “him . . . of the dude over there,” apparently indicating Smith. He told the jury that Roddy-Rod was afraid of Smith even before the shooting started.

On appeal, Smith argues that the trial court should have sustained defense counsel’s objection to this evidence. He reasons that Attaway had no personal knowledge of why Roddy-Rod acted as he did. A witness can only testify about a subject about which he or she had personal knowledge. (Evid. Code, § 702. subd. (a).) Personal knowledge is defined as a present recollection of an impression derived from the exercise of the witness’s own senses. (Evid. Code, § 702, Cal. Law Revision Com. Com., reprinted at 29B pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 702, p. 300; People v. Lewis (2001) 26 Cal.4th 334, 356, cert. den. sub nom. Lewis v. California (2002) 535 U.S. 1019; People v. Tatum (2003) 108 Cal.App.4th 288, 297-298.) On appeal, we review the trial court’s determination of the existence of the preliminary fact of personal knowledge under an abuse of discretion standard. (People v. Lucas (1995) 12 Cal.4th 415, 466, cert. den. sub nom. Lucas v. California (1996) 519 U.S. 838; People v. Tatum, supra, 108 Cal.App.4th at p. 298.)

In essence, the trial court allowed Attaway to testify about his own impression of Roddy-Rod’s actions. The reasonable inference to be drawn from Attaway’s testimony was that Roddy-Rod, seeing Smith, reacted in a frightened manner. The sudden appearance of fright on the face of another is an impression that may be derived from an exercise of a witness’s own senses. (See People v. Lewis, supra, 26 Cal.4th at p. 356; People v. Tatum, supra, 108 Cal.App.4th at p. 298.)

In his reply brief, Smith argues that Attaway never actually testified that he saw Roddy-Rod leave and go into his house. He reasons that there was no basis for the jury to conclude that Attaway could tell that Roddy-Rod was scared just from looking at him. We disagree with this assessment of Attaway’s testimony. Defense counsel asked him: “Did you see [Roddy-Rod] near . . . the area when you observed [Dotson] getting shot?” (Italics added.) Attaway then testified that Roddy-Rod was standing next to Dotson until he went inside after observing Smith pass by in a car. The inference raised by this exchange was that Attaway actually saw Roddy-Rod and personally observed a look of fear on his face after seeing Smith.

Smith also suggests that the evidence was not admissible because there was evidence that Attaway was not at a vantage point to actually observe Roddy-Rod go into his home. Attaway’s initial testimony was that he saw Roddy-Rod do so. A witness’s personal knowledge may be shown by any admissible evidence including that witness’s own testimony. (Evid. Code, § 702, subd. (b).) If there is evidence that the witness had the capacity to perceive and recollect, the determination whether he or she actually perceived and did recollect is one for the trier of fact to assess. (People v. Lewis, supra, 26 Cal.4th at p. 356; People v. Tatum, supra, 108 Cal.App.4th at p. 298.) Smith was entitled to challenge the credibility of this testimony, as he did, by offering evidence that Attaway was not in a place where he could observe this conduct. The jury could determine the weight to be given to Attaway’s testimony, but it was within the trial court’s discretion to find the preliminary fact that Attaway had sufficient personal knowledge to offer his observations of Roddy-Rod’s conduct and demeanor.

Smith also appears to raise hearsay and lack of confrontation objections on appeal. (See U.S. Const. 6th & 14th Amends.; Evid. Code, §§ 1200, 1204.) He complains that by the admission of Attaway’s testimony, Roddy-Rod in essence became a witness for the prosecution whom he was not able to cross-examine. Smith did not object to Attaway’s testimony on these grounds in the trial court. In the absence of a specific objection on those grounds, we have no authority to set aside a judgment because of the erroneous admission of evidence. (See Evid. Code, § 353, subd. (a); People v. Morris, supra, 53 Cal.3d at p. 188.)²⁴

24 If we were to reach the merits of this issue, we would find that Attaway did not offer any hearsay evidence. He testified about what he observed Roddy-Rod do rather than any out-of-court statements made by Roddy-Rod. (See Evid. Code, § 1200, Sen. Com. on Judiciary, com., reprinted at 29B pt. 4 West’s Ann. Evid. Code (1995 ed.) foll. § 1200, pp. 5-6; People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 10 [nonassertive conduct] petn. cert. filed June 12, 2008, No. 07-11425; see also Evid. Code, § 225 [defining “statement”].) As no hearsay evidence was admitted, the confrontation clause was not implicated. (See, e.g., People v. Jurado (2006) 38 Cal.4th 72, 117, cert. den. sub nom. Jurado v. California (Oct. 10, 2006, No. 06-5162) ___ U.S. ___ [127 S.Ct. 383] [right of confrontation not violated when jury hears evidence from witness subject to cross-examination of hearsay statement that was admissible pursuant to exception to hearsay rule].)

2. Hampton’s Fear

Hampton denied making any statements to police, but an Oakland police officer testified that Hampton had given a tape-recorded statement in March 2004. Hampton’s prior inconsistent statement was introduced to impeach his trial testimony. When asked whether he recalled telling Oakland police that every time someone saw Smith, “it was . . . scary,” Hampton did not remember making that statement. The prosecutor later elicited testimony from an Oakland officer confirming that Hampton had told police that every time someone saw Smith “it was . . . scary.” Defense counsel objected when the prosecutor attempted to elicit this response, but the trial court overruled the objection after an unreported bench conference.

On appeal, Smith contends that the trial court erred by permitting the Oakland police officer to repeat Hampton’s statement that he was “scary.” He argues that the evidence set out the state of mind of persons other than Hampton of whom he had no personal knowledge. (See Evid. Code, § 702.) He also urges us to find that this evidence was irrelevant, that it was more prejudicial than probative and that it was the hearsay testimony of unnamed persons who were not subject to cross-examination. (See U.S. Const., 6th & 14th Amends.; Evid. Code, §§ 350, 352, 1200, 1204.)²⁵ Assuming arguendo that the trial court erred in admitting this relatively minor evidence, we find beyond a reasonable doubt that the verdict would have been the same even if it had been excluded. (See Chapman v. California, supra, 386 U.S. at p. 24.)

25 The People argue that Smith failed to lodge a timely and specific objection to this testimony in the trial court. We do not know the exact nature of the objection raised, because the bench conference that defense counsel requested was not reported. Smith’s counsel on appeal attempted to settle the record on this matter, but we denied her application to do so. Smith also raises an ineffective assistance of counsel issue relating to trial counsel’s failure to object to the prosecutor’s questioning of Hampton that set up the introduction of the police officer’s testimony. Under these circumstances, we think it prudent to address the merits of the issue that Smith raises on appeal.

B. Impeachment

Smith also complains that the trial court erred by allowing the prosecutor to impeach defense witness Ben Knighten with an offense that did not constitute a crime of moral turpitude. Outside the presence of the jury, the prosecutor advised defense counsel that Knighten had a 1988 prior conviction for possession of a dangerous or deadly weapon. (See § 12020.) Defense counsel argued that this conviction was stale, but conceded—when specifically asked by the trial court—that this offense was a crime of moral turpitude. The trial court—also concluding that it was a crime of moral turpitude—ruled that the prosecution could impeach any testimony Knighten would offer. It declined to exercise its discretion to exclude the prior conviction as more prejudicial than probative. (See Evid. Code, § 352; People v. Garrett (1987) 195 Cal.App.3d 795, 798.) When Knighten offered his alibi testimony for his brother, Smith, he admitted his prior conviction for possession of a weapon.

On appeal, Smith argues that possession of a dangerous or deadly weapon is not a crime of moral turpitude and that the prosecutor should not have been permitted to impeach Knighten with this prior conviction. In the trial court, defense counsel did not object to the admission of this evidence on this basis. (See Evid. Code, § 353, subd. (a); People v. Morris, supra, 53 Cal.3d at p. 188.) In fact, defense counsel conceded that the underlying offense was a crime of moral turpitude. The doctrine of invited error applies to preclude reversal on appeal. (People v. Cooper, supra, 53 Cal.3d at p. 827; People v. Lara, supra, 30 Cal.App.4th at p. 673.)

Smith argues that this concession was in error, constituting ineffective assistance of counsel. The failure to object to the use of a prior conviction may constitute ineffective assistance of counsel. (People v. Marquez (1986) 188 Cal.App.3d 363, 367-368 [impeachment of defendant].) The validity of Smith’s ineffective assistance of counsel claim of error turns on whether the offense of possession of a dangerous or deadly weapon is, in fact, a crime of moral turpitude.

A witness’s prior conviction may be used to impeach that witness if the underlying offense is a crime of moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317; People v. Garrett, supra, 195 Cal.App.3d at p. 798.) A crime of moral turpitude is one that reveals a person’s dishonesty, general readiness to do evil, bad character or moral depravity. (People v. Bautista (1990) 217 Cal.App.3d 1, 5.) We evaluate the least adjudicated elements of the underlying offense alone to determine if the offense is a crime of moral turpitude. (See People v. Castro, supra, 38 Cal.3d at p. 317; People v. Dewey (1996) 42 Cal.App.4th 216, 221.) We cannot go behind the fact of the conviction and receive evidence on the underlying facts of the crime. (People v. Dewey, supra, at p. 221.) The possession of an illegal weapon is an evil act that exposes others to danger, thus constituting a crime of moral turpitude. (People v. Garrett, supra, 195 Cal.App.3d at pp. 799-800.) As it is illegal to possess any weapon prohibited by section 12020, we are satisfied that a conviction for possession of a dangerous or deadly weapon within the meaning of that provision constitutes a crime of moral turpitude. Thus, defense counsel did not err by conceding this matter in the trial court. (See Rodrigues, supra, 8 Cal.4th at p. 1126; People v. Lewis, supra, 50 Cal.3d at p. 289.)

V. Ineffective Assistance of Counsel

A. Legal Standard

Finally, Smith contends that his trial counsel was constitutionally ineffective. We have already rejected many of his ineffective assistance of counsel claims of error. (See pts. II.-IV., ante.) As we consider his remaining claims of ineffective assistance of counsel, we apply the legal standards that we have already set out. (See pt. II.A., ante.)

B. Rodriguez’s Prior Convictions

Smith contends that his trial counsel was ineffective because she failed to introduce evidence of Rodriguez’s prior felony convictions. Before trial, defense counsel successfully sought an in limine ruling from the trial court that Rodriguez could be impeached on the basis of 2004 and 2005 prior convictions for burglary, attempted robbery and assault with a weapon other than a gun. However, when Rodriguez testified before the jury, no evidence of these prior convictions was offered. It appears that defense counsel’s failure to offer this impeachment evidence was an oversight.

Clearly, the failure to offer impeachment evidence can constitute conduct falling below that reasonably to be expected from competent counsel. However, to prevail on his ineffective assistance of counsel claim, Smith must also show that it is reasonably probable that, but for counsel’s omission, he would not have been convicted. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389.) In this matter, Smith cannot make such a showing.

Rodriguez admitted that he sold drugs on a daily basis for 10 years. He admitted that in 2002, he ingested heroin several times a day. He also smoked marijuana and snorted cocaine. The jury was also advised that he was testifying under a grant of immunity—an agreement that he would not be charged with any criminal offense arising out of his testimony. Given the bounty of evidence that the jury heard that had the tendency to undermine Rodriguez’s credibility, there was no reasonable probability that it would have reached a different verdict if it learned that Rodriguez had also suffered these prior convictions. (See Rodrigues, supra, 8 Cal.4th at p. 1126; Maury, supra, 30 Cal.4th at p. 389.)

C. Alibi Instruction

Smith next contends that his trial counsel was ineffective for failing to request a jury instruction on his alibi defense. At trial, he offered an alibi defense, but trial counsel did not request a standard CALJIC alibi instruction. (See CALJIC No. 4.50.)²⁶ No alibi instruction was given to the jury.

26 “The defendant in this case has introduced evidence for the purpose of showing that [he] was not present at the time and place of the commission of the alleged crime for which [he] is here on trial. If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, you must find [him] not guilty.” (CALJIC No. 4.50.)

An alibi jury instruction need not be given sua sponte. (See People v. Alcala (1992) 4 Cal.4th 742, 803-804, cert. den. sub nom. Alcala v. California (1993) 510 U.S. 877.) On appeal, Smith argues that defense counsel’s failure to request CALJIC No. 4.50 and a suggested addendum to it²⁷ constituted ineffective assistance of counsel. In this matter, the jury was instructed that the prosecution had the burden of proof in this case beyond a reasonable doubt. (See CALJIC Nos. 2.90, 2.91.) The jury could not have been misled by a failure to also be instructed on the significance of an alibi defense. (People v. Freeman (1978) 22 Cal.3d 434, 438.) In most cases, an alibi jury instruction would be redundant.

27 Smith argues that trial counsel should have sought this addition to the standard alibi jury instruction: “However, rejection or disbelief of defense evidence does not create affirmative evidence of guilt. Even if you should reject all or part of the defense evidence, you may not convict the defendant unless the prosecution has presented other evidence which you believe to prove guilt beyond a reasonable doubt.”

We assume arguendo that the failure to request appropriate jury instructions may constitute ineffective assistance of counsel. (See People v. Sedeno (1974) 10 Cal.3d 703, 717, fn. 7, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 149, 165.) Smith reasons that the lack of an alibi instruction would constitute ineffective assistance of counsel if he demonstrates that there was a risk that the jury misunderstood the People’s burden of proof in his particular case. He contends that the jury could have been misled in this matter because the prosecutor argued that his failure to prove his alibi defense constituted affirmative proof of his guilt.

At trial, the prosecutor argued that when Rodriguez testified that he saw Smith at the scene of the crime after the Dotson shooting, Rodriguez placed Smith at the scene, “not in church. And if he’s not in church, he’s . . . standing over a man who may not even be dead yet, . . . pumping [bullets] into him.” We do not interpret this argument as an exhortation to find that if Smith did not prove his alibi defense, then he had to be guilty of the charges, as he reasons that it did. The argument compared the two versions of events offered by the prosecution and the defense about Smith’s whereabouts at the time of the shooting. This argument was within the prosecutor’s wide-ranging right to state what the evidence shows and to urge the jury to draw appropriate inferences from that evidence. (Thomas, supra, 2 Cal.4th at p. 526.) It did not constitute an argument that if the jury did not believe Smith’s alibi, it had to convict him, regardless of whether the prosecution had proven its case beyond a reasonable doubt. As trial counsel did not fall below the standard to be expected of reasonably competent counsel by failing to request specific alibi instructions, we find no ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389.)

D. Drug and Alcohol Use

Next, Smith complains that his trial counsel failed to request instructions on how the credibility of Armstrong, Attaway, Bostic and Rodriguez was affected by their drug and alcohol use. These witnesses testified at trial that they were under the influence at the time of the shooting and/or when they made their initial statements to police. On appeal, Smith contends that statements made while a witness was under the influence lack credibility such that trial counsel should have requested that the jury be instructed to view these statements with caution.²⁸ He reasons that his defense counsel’s failure to request such an instruction constituted ineffective assistance of counsel.

28 He suggests that the jury should have been instructed that “The testimony of a witness who was under the influence of drugs or alcohol at the time of his initial out-of-court statement should be considered with more caution than the testimony of other witnesses for whom that was not the case.” Alternatively, he reasons that defense counsel should have requested that language be added to CALJIC No. 2.20 to the effect that “whether or not the witness was under the influence of drugs and/or alcohol, or going through withdrawal, at the time of his initial out-of-court statement” was a factor for the jury to consider when evaluating the credibility of witnesses.

At defense counsel’s request, the jury was instructed that when determining the believability of a witness, it could “consider anything that has a tendency in reason to prove or disprove the truthfulness of the testimony,” including “[t]he ability of the witness to remember . . . any matter about which the witness has testified.” (See CALJIC No. 2.20.) This instruction’s admonishment encompasses within it consideration of the fact that a witness was under the influence of drugs and/or alcohol at the time of the making of the initial statement. A request for the pinpoint jury instruction that Smith now seeks would have been duplicative. (People v. Wright (1988) 45 Cal.3d 1126, 1134.) Trial counsel did not fall below the standard to be expected of reasonably competent counsel by failing to seek a more specific instruction. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389.)

Smith also argues that trial counsel should have sought instructions advising the jury to consider whether witnesses who were under the influence at the time of the shooting may have had an impaired ability to perceive or remember the events about which they testified.²⁹ This argument is even less persuasive. Each of the challenged witnesses knew Smith. This case did not turn on the identity of the shooter, but on the credibility of the witnesses. For the same reasons that trial counsel was not ineffective for failing to request pinpoint instructions about the witnesses state of intoxication at the time that the initial statements were made to police, defense counsel did not fall below the standard of conduct expected of reasonably competent counsel by failing to request similar pinpoint instructions relating to the eyewitnesses’ impaired ability to perceive and identify Smith as the shooter. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389.)

29 Specifically, he argues that defense counsel should have sought this jury instruction: “In determining the credibility of witnesses, you may consider whether a witness was using addictive drugs at the time of his observations. Such a witness may have an impaired ability to perceive or remember the matters to which he testified.” Alternatively, he reasons that defense counsel should have requested that language be added to CALJIC No. 2.92 that “whether the witness’s capacity to observe was affected or impaired due to the use of drugs” was a factor for the jury to consider when evaluating the credibility of eyewitness identification testimony.

E. Receipt of Benefits

Smith next contends that he was prejudiced because his trial counsel failed to request jury instructions on how the receipt of benefits could impact the credibility of witness testimony. He faults defense counsel for failing to seek a modification of CALJIC No. 2.20 or 3.10 by noting that when evaluating witness credibility, the jury could consider that Bostic’s accomplice testimony was offered pursuant to a plea agreement and that Rodriguez’s testimony was given under a grant of immunity. Smith also contends that trial counsel should have sought a modification of CALJIC No. 2.20 reminding the jury that Attaway made his statement to police in exchange for consideration in his own criminal matters.

The jury knew these specific facts. It was instructed that the existence of bias, motive or other interest could be a factor in determining the credibility of a witness’s testimony. (See CALJIC No. 2.20.) The failure to request pinpoint jury instructions that duplicated the instructions that were given did not constitute ineffective assistance of counsel. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; People v. Wright, supra, 45 Cal.3d at p. 1134; Maury, supra, 30 Cal.4th at p. 389.)

F. CALJIC No. 2.20

Smith also argues that his trial counsel erred by failing to request a modification of CALJIC No. 2.20 to make it clear that the credibility factors applying to a witness’s in-court testimony also applied to his or her out-of-court statements.³⁰ We have already rejected a related argument. (See pt. V.D., ante.) There is no reasonable likelihood that the jury was misled into thinking that the factors pertaining to the credibility of in-court testimony did not also bear on the credibility of the initial statements that these witnesses made to police. (See Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4; People v. Cain (1995) 10 Cal.4th 1, 36, cert. den. sub nom. Cain v. California (1996) 516 U.S. 1077.) For the same reasons that we rejected Smith’s related arguments, we also find no ineffective assistance of counsel stemming from trial counsel’s failure to seek these modifications to CALJIC No. 2.20. (See Strickland, supra, 466 U.S. at pp. 687-688, 691-692; Maury, supra, 30 Cal.4th at p. 389; People v. Wright, supra, 45 Cal.3d at p. 1134.)

30 Smith would have had the jury instructed that, when determining the believability of the testimony or out-of-court statement of a witness, the jurors could consider anything that had a tendency in reason to prove or disprove the truthfulness of the testimony or out-of-court statement.

G. Closing Argument

Finally, Smith contends that his defense counsel made various misstatements during closing argument that undercut the effectiveness of that argument so much that the jury would not have convicted him had these misstatements not been made.³¹ We have considered these misattributions in the context of the overall argument made in Smith’s favor at the close of evidence. Even if we assume arguendo that defense counsel’s argument fell below a standard of reasonable competence, we would find that it is not reasonably probable that the jury would have reached a different result, absent these minor misstatements.³² (Maury, supra, 30 Cal.4th at p. 389.)

31 Specifically, he complains that trial counsel confused the testimony of Armstrong and Attaway about seeing him in a car, confused Attaway and Rodriguez when discussing the 911 tape, and mistakenly attributed the testimony of Rodriguez or Bostic to Attaway when attempting to impeach the latter witness.

32 As we find little error arose at trial, we reject Smith’s claim that the cumulative effect of those few minor errors warrant reversal of his conviction. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006, cert. den. sub nom. Ashmus v. California (1992) 506 U.S. 841, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118, cert. den. sub nom. Yeoman v. California (2004) 541 U.S. 991.)

VI. Conclusion

The trial court shall correct the abstract of judgment to accurately reflect Smith’s conviction of a violation of section 12021, subdivision (a)(1), not subdivision (a)(2) of that provision. In all other respects, the judgment is affirmed.³³

33 We consider Smith’s related petition for writ of habeas corpus (case No. A118636) on ineffective assistance of counsel grounds by separate order.

We concur: Ruvolo, P.J., Sepulveda, J.