Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA254458, Michael M. Johnson, Judge.
Law Offices of Marcus A. Torigian, Marcus A. Torigian; Page & Page and Kathleen C. Page for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels, Chung L. Mar and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
EPSTEIN, P. J.
Benhardt Chambliss appeals from his convictions of first degree murder, and assault with a deadly weapon. He claims instructional error, judicial misconduct, prosecutorial misconduct, evidentiary error, and sentencing error. We conclude the trial court had no sua sponte duty to instruct on self-defense or defense of others. We find no judicial or prosecutorial misconduct. The trial court did not err in admitting redacted evidence of statements appellant made following a polygraph examination conducted at his request. Finally, we conclude there was no sentencing error. The judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
Appellant’s convictions arise from two separate incidents. The first occurred on May 4, 2003. That day, Laucretia (Denise) Issiah and her friend, Clifford Roach, attended a football game followed by a barbecue and party in a park in Los Angeles. They drank alcohol and smoked crack cocaine. As it got dark, between 9:00 p.m. and 9:30 p.m., they built a fire in a barrel in the park and continued to get high. At 10:00 p.m., police officers ordered the two to put the fire out. Roach argued with the officers, and was threatened with arrest. He and Issiah left the park, then returned later. They sat on a park bench at a table with an unknown homeless man. When Issiah asked the homeless man to move, the man walked over to an older burgundy car parked on the street. The man returned to the park, walking around benches near where Issiah and Roach were sitting.
The victim was also known as “Teresa.”
Five or six minutes later, appellant entered the park from an area near the burgundy car and started walking toward Issiah and Roach. Because it was dark, they could not see who it was at first. Then appellant activated a light that illuminated him. Roach saw that he carried a pump shotgun with a pistol grip down by his right side. Roach identified appellant as the man with the shotgun. Appellant was wearing his hair in two long braids, down the side of his head.
When he reached the table, appellant ordered the homeless man to lie down on the ground. The man complied. He repeated that order with Roach. When Roach resisted, appellant put the shotgun in his face. Appellant said, “Cuz, I’m not playing with you, lay down.” Roach laid on the ground. Issiah told appellant, “You ain’t got to do this to me.” Appellant said he had told her to lie down next to Roach. Appellant used the word “cuz” five or six times. Issiah refused to get onto the ground, telling appellant she was a homegirl, and then that she was pregnant.
Roach had his head turned away from Issiah. She got down on the ground, but got up again. She argued with appellant for four or five minutes, then got down next to Roach. Roach then heard the gun click, and one shot was fired. A second shot followed immediately. Pellets from the second shot hit both Issiah and Roach.
According to Roach, he noticed at the time of the shooting that appellant had a lazy right eye. After the second shot, he lay there for a second, then heard running feet. He turned and saw appellant running toward the burgundy car. Appellant got into the burgundy car and left. Roach called out to Issiah. When she did not respond, he rolled her over and saw that her face had been blown off. He realized she was dead. He ran from the park and called 911 on a pay telephone. A friend took him to the hospital for treatment. A few weeks later he met with a police sketch artist and described appellant.
The second incident occurred on June 15, 2003. Drew Cotton was being evicted from the room he rented at a house owned by William Barnes, whom he knew as “Big Will.” Cotton had returned to Big Will’s house that day to retrieve his weight set. He had been very close friends with appellant for six years prior to that day, but appellant was closer to Big Will. A month before, during an argument, Big Will had pulled a 9-millimeter handgun on Cotton, when Cotton threatened to hit him.
On June 15, Cotton went into the backyard to retrieve his weights and saw appellant standing in the back door with a 12-gauge shotgun. It was not a pistol grip shotgun. Cotton was talking to Big Will about some items he had left inside the house, but Big Will would not let him into the house to retrieve them. Cotton asked appellant why he was present, being nosy. Appellant said he was there “because I can be.”
The exchange between Cotton and appellant became heated. Cotton asked appellant why he did not put the shotgun down and they could “go one on one.” On cross-examination, Cotton admitted that he told appellant “put that shotgun down and come down here, and I’ll kick your ass.” Appellant stepped out of the doorway and pointed the shotgun at Cotton. Cotton was about 20 feet away. Cotton turned away to discourage appellant from shooting, but the gun fired. Before pulling the trigger, appellant said something about killing Cotton, and that this was “on Harlem Crips.” Appellant also said that he and the “homies” were having a meeting to kick him out of the neighborhood. When he heard the gunshot, Cotton felt a rush by his ear, like something whizzed by.
Cotton grabbed his weights from the backyard and left. Appellant yelled: “‘It’s not over. I’m going to get you. I’m going to see you in traffic. I’ll see you in traffic.” Cotton understood this to mean that when appellant saw him in the street, appellant would kill him. He copied down the license plate of a white vehicle, drove to a friend’s house, and called 911. Cotton identified appellant from a six-pack photographic display shown to him by police officers. Some time later, Cotton was going to the Crenshaw Car Clinic and saw appellant. He telephoned police and appellant was arrested.
The jury found appellant guilty of first degree murder in the death of Issiah, and found true allegations that he personally discharged the shotgun within the meaning of Penal Code section 12022.53, subdivisions (c) and (d). The jury also found appellant guilty of assault with a firearm on Roach and found that appellant personally used a firearm and inflicted great bodily injury under sections 12022.5, subdivision (a)(1) and 12022.7, subdivision (a). He also was found guilty of assault with a firearm upon Cotton, and an allegation that he personally used a shotgun in the commission of that offense was found to be true. (§ 12022.5, subd. (a).) Appellant was sentenced to an aggregate prison term of 62 years 4 months to life. He filed a timely appeal.
Statutory references are to the Penal Code unless otherwise indicated.
At the time of trial, section 12022.5 had a subdivision (a) which imposes an enhancement for personal use of a firearm, but no subdivision (a)(1). We conclude that this was not a material defect.
DISCUSSION
I
Appellant argues the trial court had a sua sponte duty to instruct on self-defense and defense of others in connection with the assault on Cotton. He argues that the testimony of Cotton and William Barnes established that Cotton previously had threatened Barnes and threatened appellant on the day of the assault. Respondent argues there was no sua sponte duty because appellant did not rely on these defenses at trial, and there was no substantial evidence to support them. We agree.
“In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘“only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ [Citations.]” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) If the evidence of the defense is minimal or insubstantial, there is no sua sponte duty to instruct on a defense. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’ [Citations.]” (People v. Salas (2006) 37 Cal.4th 967, 982.)
Thus, whether the trial court erred in not instructing on self-defense or defense of others turns on whether appellant offered substantial evidence that, if believed, by the jury, would support those defenses.
Appellant did not rely on these defense theories as to the assault on Cotton. Instead, in closing argument, his counsel attacked Cotton’s credibility, and argued that the incident did not occur. Self-defense and defense of others are inconsistent with appellant’s position that the incident did not happen. In addition, the evidence presented by the prosecution was that Cotton challenged appellant to put down the shotgun and have a fist fight. Cotton was unarmed. It is axiomatic that only the force necessary to repel an attack may be used in self-defense. (People v. Hardin (2000) 85 Cal.App.4th 625, 629.) The evidence does not support an instruction that appellant was justified in firing a shotgun in response to Cotton’s challenge to a fist fight. The trial court had no sua sponte duty to instruct on these defenses.
II
Appellant argues the trial court interfered with his efforts to discredit Roach’s testimony. A key aspect of Roach’s identification of appellant as the shooter was his description of an irregularity in one of appellant’s eyes, at times described as a lazy eye. Roach was confused about which eye was irregular. During recross examination, the prosecutor attempted to clarify Roach’s testimony by asking appellant to stand and face the jury so it could examine which eye is damaged.
Roach testified: “It looks like his left eye facing me.” The court then asked a series of clarifying questions. “You’re talking about the eye on your left?” Roach said: “Right. Right. His left eye.” The trial court tried again: “The eye on the side where your left arm is?” Roach answered: “Yes. Correct.” The court asked: “Not on the side where his left arm is, that’s what you’re describing?” Roach said: “Correct.”
On recross examination, defense counsel returned to the question of which of appellant’s eyes is damaged: “You indicated that the person that you saw with the damaged eye, you had looked at them . . . head-on, that it was to your left; but looking at them, it would have been their right that was damaged, correct? By that, you say that looking straight-on for the person, even though you told the police that it was his left eye damaged, you meant his right eye?” Roach said: “Correct.” Defense counsel asked: “And even in the taped statement, when you’re tugging at your left eye, and you’re saying, it was this eye that was damaged, and you are pointing to your left eye, you really mean the right; is that right?” Roach answered: “That’s correct.”
Defense counsel then moved to which hand the assailant used to carry and rack the shot gun. He asked Roach to confirm that he told the police that the man used his right hand. Roach said he had. Defense counsel then asked: “So are we to assume, then, that the person actually was left-handed; is that right?” At that point, the trial court interjected: “Find a different way of saying that. We’re getting right and left used in so many ways, it’s confusing me.” There was no defense objection.
Appellant finds no fault in the trial court’s direction to find a different way of asking the question. His quarrel is with the trial court’s comment that “it’s confusing me.” Appellant asserts that this comment was unnecessary and diminished the cross-examination of the witness. He contends that this was plain error, and that it was prejudicial because it undermined his efforts to discredit Roach. We disagree.
“‘“[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 (Van Arsdall), quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (Van Arsdall, supra, 475 U.S. at pp. 678-679.) California law is in accord. (See People v. Belmontes (1988) 45 Cal.3d 744, 780.) Thus, unless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” (Van Arsdall, supra, 475 U.S. at p. 680), the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ (People v. Frye (1998) 18 Cal.4th 894, 946.)” (People v. Carpenter (1999) 21 Cal.4th 1016, 1050-1051.)
Here, defense counsel already had established that Roach was confused about which was the left or right side of a person facing him. He had thoroughly cross-examined Roach about various inconsistencies in his statements and testimony. Appellant does not demonstrate how the jury would have had a significantly different impression of Roach’s credibility absent the court’s interjection. We conclude that the trial court properly exercised its discretion in attempting to avoid confusing testimony; we find no confrontation clause violation.
III
Appellant raises numerous claims of prosecutorial misconduct. “‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214]; People v. Espinoza (1992) 3 Cal.4th 806, 820.) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Espinoza, supra, 3 Cal.4th at p. 820.)’ (People v. Samayoa (1997) 15 Cal.4th 795, 841.)” (People v. Hill (1998)17 Cal.4th 800, 819.)
A. Preservation of the Issue
Anticipating respondent’s argument, appellant acknowledges that a timely objection and request for admonishment is generally necessary to preserve a claim of prosecutorial misconduct for appeal. But he invokes the exception that objections or requests for admonition are not required if either would be futile. He contends that the trial court deferred ruling when his counsel objected to the prosecutor’s opening statement and closing argument.
The first cited objection occurred when the prosecutor said: “I want to introduce you to Ms. Issiah, and I want to introduce you to the man who killed her.” When defense counsel argued that this was improper, the trial court said “Let’s defer that second part and just move on with a discussion of the evidence.” In context, this statement by the trial court seems to be a direction to the prosecutor to move to the evidence rather than deferring a ruling on the defense objection. This was an appropriate way in which to handle the matter.
The second cited incident happened when the prosecutor said in closing argument that this was the story of Issiah and “I cannot speak to her qualities as a mother, as a sister and as a daughter.” Defense counsel objected that this was improper. The trial court ruled: “There was no evidence of that, so let’s move on.” Once again, contrary to appellant’s contention, the trial court did not defer a ruling on the objection. Instead, it ruled that there was no evidence to support the prosecutor’s argument, and directed counsel to move on to another subject. This was a ruling favorable to the defense. We find no basis in these incidents to support appellant’s claim that a contemporaneous objection based on prosecutorial conduct is excused because any objection or request for admonition would have been futile. In any event, there was no error.
B. Purported Gang References
Appellant argues the prosecutor disregarded the trial court’s order to refrain from testimony about appellant’s gang affiliation. At a pretrial hearing, the court said: “Unless I hear more evidence of why it’s necessary for identity, I will preclude the expert testimony and preclude testimony about the defendant’s gang membership in terms of self-identification some years ago, and I will preclude argument that this was a gang crime, but I’m not going to edit the testimony.”
The court clarified its ruling, explaining that it would allow testimony that appellant was at a party in the park involving Crips members hours before the shooting, that the shooter was dressed in blue, and that appellant was dressed in blue. The court said: “[T]o the extent there’s testimony that the defendant or the shooter used certain language ‘cuz’ or whatever, I think those are the facts, and they certainly may or may not establish some direct or circumstantial evidence of identity, but we’re not going to go through and edit out that.” (Italics added.)
The prosecutor asked whether he would be allowed to establish that the area was Rolling 30’s Crip territory, so he could argue that appellant was a Crip, the shooter was a Crip, and the crime happened in Crip territory. The court said it did not want a statement in opening argument that this was a Crip crime, or that appellant is a Crip. The court explained that since there were no gang allegations, it wanted to see how the issue played out in order to fully understand the evidentiary basis for gang testimony. When the prosecutor asked about a tattoo on appellant’s hand, the court said that if Roach described a tattoo on the shooter’s hand that matches the one on appellant, that would be proper. The court observed that no gang expert would be required to say that this was a gang tattoo.
The prosecutor asked whether he would be allowed to refer to appellant’s admission that he is a Harlem Crip, to refer to appellant’s statement about the Crips during the Cotton incident. A colloquy followed about Cotton’s long relationship with appellant, which made gang testimony unnecessary for identification. The trial court ruled: “[T]hat’s the ruling. There would be no evidence other than a fair description of what was said by any of the witnesses without further order of the court.”
Appellant’s first claim of prosecutorial misconduct is based on the following passage from opening statement: “Mr. Chambliss started using words like cuz this, cuz that. Cuz, which is shorthand used by certain individuals.” Defense counsel objected and asked for a sidebar. The trial court sustained the objection and denied the sidebar. At the conclusion of the prosecution’s opening, the court held a sidebar conference. It indicated that unless counsel objected, it intended to tell the jury that while the prosecutor mentioned a gathering of Crips in the park on the day of the shooting, and there might be witnesses or people involved in the case who may have been associated with gangs, this is not a gang case. The court said it would instruct the jury not to consider gang involvement “other than as part of the factual backdrop in the case.”
The prosecutor argued that while there was no gang allegation, it was a gang case with an identity issue, and a defendant who admitted to being a Crip. When the shot was fired at Cotton, the shooter said this is for the Crips. The prosecutor said: “I don’t see how that’s to be ignored.” Defense counsel argued that the prosecutor had flaunted the evidentiary ruling made by the trial court, and that he had gone beyond the ruling allowing the witnesses to say what words were used. The prosecutor said that was not the ruling.
The court ruled that the prosecutor had not violated its order, but warned that he should not come close to violating the order. Testimony about what was going on at the park was permissible as part of the factual backdrop of the case. But the prosecutor was told: “I really do not want you to be saying things like, you know, cuz, which certain groups, you know do. First of all, that’s not the case. I can tell you that my daughter goes to a high school that is very far removed from Martin Luther King Park, and the kids there like to use that word too. It’s just part of the vernacular, unfortunately.” The court told the prosecutor that from all of the identification factors mentioned in the opening statement, including appellant’s lazy eye, the gang issue was not important. It went on to explain “the only quarrel I have is . . . you’re [sic] embellishment of the language. But I just want to make it clear, please do not—and I’m ordering you not to—cross that line.” The court reiterated that counsel had not violated the order.
The court then admonished the jury that during opening statement there had been a reference to a gathering of Crips in the park. “This is—I just want to make clear, this is not a gang case. There are no allegations of gang purpose or gang involvement. That’s not in any way part of the charges in this case. [¶] There may well be mention of that during the description of witnesses or language or colors or different things mentioned as part of the case, but this is not a gang case. Those things are simply part of the factual backdrop of this case. I want you to keep that in mind in regard to any evidence along those lines.”
Appellant argues: “Here, the prosecutor clearly made remarks in his opening statements which were determined to be inadmissible in a previous ruling. (3 RT:387.)” He identifies three gang references in opening statement which he alleges violated the court’s order. We have discussed the first, a reference to appellant’s use of the word “cuz” above. There was an objection to that remark. In its initial ruling, the trial court specifically said that witnesses would be allowed to testify as to what was said. Roach eventually testified that the shooter used the word “cuz.” The prosecutor did not violate the order by referring to the use of that word.
The prosecutor’s statement that the word “cuz” is used as shorthand by “certain individuals” was closer to the line. But there was no direct reference to gangs at that point, and the trial court strongly admonished the jury that this was not a gang case. We find no prejudicial misconduct in this instance.
There was no objection to the next two remarks. As we have discussed, appellant failed to establish that an objection would have been futile. Even if the issues were preserved, we find no misconduct. The next statement was a reference to the football game between two groups of Rolling 30’s Crips at the park on the day of the shooting. We conclude that this statement did not violate the court’s ruling because it reflected the factual backdrop of the events preceding the shooting.
The next statement challenged was similar, that appellant admitted being at the “Crip party, the Little Homies versus the Big Homies football—softball party on the day of the murder.” We reach the same conclusion, for the same reasons. In this statement, the prosecutor was summarizing the factual backdrop of the events at the park earlier on the day of the shooting, placing appellant at the scene at that time. This did not violate the court’s order.
Appellant also argues the prosecutor committed misconduct in closing argument. The prosecutor said: “The next piece of evidence that suggests that Mr. Chambliss is guilty is the use of the word ‘cuz.’ [¶] Now, I’ve turned on the radio, and I can hear people say cuz all the time. I have relatives who are not—you can hear cuz all over the place. What I mean to suggest by this is not in and of itself that this is guilt. But what this means is that in the back of the police car, you can listen to it on the tape, when Mr. Chambliss is a much different person than he is when he’s talking to [the police polygraph examiner], he continually uses the word ‘cuz.’” (Italics added.) Appellant points to the language we have emphasized to argue: “None of these references directly indicate that Mr. Chambliss is a gang member, but the implication is very strong. [¶] Although these references standing alone may not seem to amount to much damage, the seed of prejudice was planted during opening statement and then subtly recalled during closing argument.”
We disagree. The italicized language is too vague to suggest appellant was a gang member. The prosecutor’s statements were permissible under the trial court’s order. There was no misconduct.
C. Misstatement of the Evidence
Appellant argues that the prosecutor repeatedly misstated evidence. “Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct.” (People v. Hill, supra, 17 Cal.4th at p. 823.) But failure to object forfeits a claim of misconduct for misstating facts. (People v. Lucas (1995) 12 Cal.4th 415, 473-474) Appellant presents no reason why a prompt objection and admonition could not have cured the asserted harm of these remarks. (Ibid.) Where there was no objection, the claim is forfeited, but in any case, the claims lack merit.
1. Number of Times Issiah Was Shot
Appellant cites three instances during the prosecutor’s opening statement where he said that Issiah was shot twice. He also cites instances during closing argument in which the prosecutor discussed the two shots. Based on evidence by the medical examiner that Issiah was shot once, appellant claims the prosecutor misstated the evidence. But other evidence supports the prosecutor’s statements. Roach testified that he heard two shots, and was wounded by the second. In his statement to the police polygraph examiner, appellant admitted that he shot Issiah twice. It was for the jury to resolve the conflict in the evidence. There was no misconduct.
2. Number of Times Shotgun Was Loaded
Appellant contends the prosecutor misstated the evidence when he argued in closing that the shotgun was “reracked.” Again, there was evidence to support the statement. Detective Yoshida, testifying about the function of a pump action shotgun, said that the presence of a live round at the crime scene supported a conclusion that the weapon had been reracked.
D. Witness Protection Program
Appellant argues the prosecutor engaged in misconduct by eliciting testimony about Roach’s placement in a witness protection program. He reasons that there was no evidence that appellant or his agents threatened Roach, and therefore, evidence that the witness was placed in a protection program was irrelevant and inadmissible.
In People v. Chatman (2006) 38 Cal.4th 344, 379-380, the Supreme Court explained: “‘Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct. Defendant’s real argument is that the evidence was inadmissible.’ [Citation.]” The Supreme Court concluded that “[a]lthough the prosecutor in this case certainly asked the questions intentionally, nothing in the record suggests he sought to present evidence he knew was inadmissible, especially given that the court overruled defendant’s objections and, as discussed below, the applicable law was unsettled at the time of trial.” (Id. at p. 380.)
The prosecutor asked Roach whether he moved out of the neighborhood after the shooting. Roach replied that he had. This was followed by a series of questions and answers: “Q. Did you do so because you were afraid?” [¶] “A. No.” [¶] “Q. Why did you move out of the neighborhood?” [¶] “A. The witness protection program.” [¶] “Q. . . . Were you given money by the witness protection program to help you pay for food and rent?” [¶] “A. Yeah.” [¶] “Q. Is anything about that influencing your testimony that Mr. Chambliss is the one who killed Ms. Issiah?” [¶] “A. No.”
There was no objection to this line of questioning, and the claim is forfeited. In any event, there was no misconduct. As in People v. Chatman, supra, 38 Cal.4th at page 380, there is no indication that the prosecutor intentionally sought to elicit Roach’s testimony that he was placed in a witness protection program. As respondent contends, in light of Roach’s testimony, there was no basis for the jury to infer that he had been threatened by appellant or his associates. We conclude that the sequence of questions was initiated in an effort to establish that Roach had no bias against appellant, a proper objective. Once Roach said he moved not because he was afraid, but because he had been put in witness protection, the follow-up questions properly explained the nature of the benefit Roach received and established that he did not falsely accuse appellant because of those benefits. There was no misconduct.
E. Facts Not in Evidence
1. Sawed Off Shotgun and Ammunition
Appellant argues that in opening argument, the prosecutor improperly referred to the murder weapon as a sawed-off pistol-grip shotgun. The weapon was never recovered, and appellant argues that therefore there was no evidence that it was in fact sawed off. He contends that characterizing the shotgun as sawed-off “strikes fear in the heart.” Appellant also argues the prosecutor improperly referred to the ammunition used as “double-aught buckshot, . . . a kind of ammunition used to blow hinges off of doors by SWAT team members, . . .” There was no evidence that SWAT team members use this ammunition.
Both these statements occurred in opening statement, and there was no objection by defense counsel. The argument is thus forfeited. Even had the point been preserved, we find no prejudicial misconduct. Before the opening statement was given, the trial court explained that the opening was an opportunity for the attorneys to talk about the evidence they expected to be presented at trial. The court cautioned: “What they say is not evidence, but rather, it’s a summary or a prediction of what they expect the evidence to be. [¶] The actual evidence comes from the witnesses themselves. Obviously, the witnesses may not testify the way that the attorneys predict, or may not testify at all. So you should wait until you hear from the witnesses before you receive anything as fact.”
These statements do not establish “‘a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process”’” nor did it render the trial fundamentally unfair by involving the use of reprehensible methods. (See People v. Hill, supra, 17 Cal.4th at p. 819, quoting People v. Gionis, supra, 9 Cal.4th at p. 1214.)
F. Prosecutor’s “Testimony”
Appellant contends the prosecutor engaged in misconduct during closing argument by talking at length about the impact of drugs on a person. The challenged statements were made in discussing whether appellant could be found guilty of second degree murder rather than first degree murder because he acted under a state of voluntary intoxication.
The prosecutor reviewed appellant’s admissions that on the day of the murder he was drinking, smoking, and using PCP. Appellant was able to remember only fragments of the details about the crime. The prosecutor argued there is no scientific evidence that PCP makes a person incapable of forming the requisite intent. He said: “There needs to be a link between taking PCP and not having the ability to say this is what I’m doing. We have no evidence of that.” He argued that the evidence that during the confrontation with Issiah, appellant engaged in “a rational, deliberative function that’s going on in his head at this moment: to pull the trigger, rack another round, to pull the trigger again. [¶] There’s a five or six-minute span where he had enough time, even if under the influence of PCP, to form a specific intent to weigh and deliberate on all of these issues.”
This claim also was forfeited because there was no objection. We agree with respondent that the prosecutor’s statements were fair comment on the evidence of appellant’s conduct, rather than improper lay testimony about the impact of drug use on the ability to form a specific intent to kill. Fair comment on the evidence, including reasonable inferences or deductions from the evidence is proper. (People v. Hill, supra, 17 Cal.4th at p. 819.) Whether the inferences drawn by the prosecutor were reasonable was a question for the jury to decide. (People v. Lucas, supra, 12 Cal.4th at p. 474.)
G. Vouching and Biblical References
Appellant argues the prosecutor vouched for the credibility of a witness and improperly asked the jury to consider biblical teachings. The challenged passage occurred when the prosecutor was summarizing five key pieces of evidence pointing to appellant’s guilt of the murder. One of these was Roach’s eyewitness identification of appellant. The prosecutor said: “To illustrate this point, the key and the foundation of the way things have been solved, crimes have been solved since the beginning of time, I want to talk to you about identification by eyewitnesses . . . [¶] We know that in biblical times, when there was a murder, Cain and Abel, there was no CSI. There was no ballistic expert. There was simple eyewitness testimony, if believed by you, is sufficient in and itself to find the defendant guilty. [¶] In this case, you should believe Mr. Roach, because his testimony has never been shaken.”
Appellant’s argument is that the passage in Genesis demonstrates that only Cain, Abel, and God were aware that Cain murdered Abel, making God the sole eyewitness. Here, appellant contends, Roach was the sole eyewitness to the shooting of Issiah. Roach had been drinking alcohol and smoking crack cocaine on the day of the murder. Appellant argues: “The correlation of Abel’s murder to the murder in this case through the implication that the veracity of the witness to each murder is similar was tantamount to the prosecutor putting Roach on the same credibility level as God Almighty!”
As respondent points out, there was no defense objection. (See People v. Abilez (2007) 41 Cal.4th 472, 526-527 [defendant forfeited claim of misconduct based on biblical reference by failing to object].) On the merits, we agree with the approach of the Supreme Court in Abilez and apply it here: “Although any reference to biblical authority is fraught with danger (People v. Roldan [(2005)] 35 Cal.4th [646,] 743), . . . in the circumstances of this case, the prosecutor’s comments did not improperly ask the jury to apply biblical authority in lieu of California law or otherwise appeal to a higher authority. Finally, even if the prosecutor’s comments were improper, the misconduct was harmless under any standard; the comments in question were brief and the argument undeveloped. (People v. Wrest (1992) 3 Cal.4th 1088, 1107.)” (Abilez, supra, 41 Cal.4th at p. 527.)
In sum, we find no misconduct, and therefore reject appellant’s constitutional and state law claims.
IV
Appellant argues the trial court erred in admitting portions of a statement he made to a police polygraph examiner.
Two days after he was arrested, appellant asked to undergo a polygraph test. After the test, he was interviewed by Ervin Young blood, a civilian interview specialist for the Los Angeles Police Department, and Helen Moody, another police interviewer. During the interview, appellant made incriminating admissions about twice shooting Issiah.
The prosecutor sought to introduce a version of the interview under Evidence Code section 351.1, subdivision (b), with all references to the polygraph test and its results redacted. Defense counsel responded with a request to introduce the remaining portions of the examination, referring to the polygraph test and results, to show the context of the admissions made by appellant. The defense theory is that appellant’s statements were motivated by the test and its results, and thus these portions of the tape were relevant to establish his state of mind.
The prosecutor objected that any evidence of the polygraph should be excluded as unreliable under People v. Lee (2002) 95 Cal.App.4th 772. Counsel for appellant argued that it was critical to the defense to explain the motivation for appellant’s statements in the interview. If the trial court was inclined to exclude the references to the polygraph, defense counsel argued that the entire interview should be excluded because his statements were intertwined with the examiners’ statements.
The trial court observed that Evidence Code section 351.1, subdivision (a) makes evidence of the taking of a polygraph examination and the results inadmissible. But subdivision (b) of the statute provides: “Nothing in this section is intended to exclude from evidence statements made during a polygraph examination which are otherwise admissible.” Based on this statute, the court concluded that appellant’s statements during the interview were admissible. The court was troubled by the fact that it was appellant who sought to introduce the entire interview, including the references to the polygraph, in order to explain the context for his admissions.
The court ruled: “I will permit introduction of the tape recording of the statements made to . . ., the examiner, but it will be only on condition that the remaining statements are also played; those requested by the defense. That’s based upon Evidence Code [section] 356, which permits remaining portions of . . . statements to be played, . . .” The court also relied on out-of-state authorities. It proposed a limiting instruction advising the jury that appellant had taken and failed a polygraph, and that testimony about the polygraph is admitted for the limited purpose of describing the context and setting in which appellant made his statements to the examiner “and to consider any effect upon the defendant of the police examiner’s statements about the polygraph test.”
Appellant’s counsel then asked that the prosecutor be allowed to use only the redacted version in his case-in-chief, with the entire, unredacted statement to come in through the defense only if appellant chose to testify. The prosecutor objected to any mention of the polygraph. Alternatively, the prosecutor argued that he should be allowed to use the entire statement in the case-in-chief, with a waiver of the right to appeal on this issue by appellant. The trial court denied the prosecutor’s request, and stated that it understood defense counsel to be making a tactical decision in order to put the best light on a very damaging statement. Appellant’s counsel agreed that the entire statement would be played to the jury only if appellant testified.
Youngblood testified about interviewing appellant. The redacted version of the taped statement was played to the jury, which also received a written transcript of that version. Before the interview was played, the court instructed the jury that the tape recording, rather than the transcript, is the evidence. It explained that portions had been redacted because the court found them to be irrelevant. The court also cautioned: “Mr. Youngblood spoke about his goal in obtaining truthful statements by an individual. In a trial, it’s the jury’s determination of what is the truth and not the truth. So you’re the judges of that.”
At the conclusion of the defense case, counsel for appellant asked the court to modify the language of its instruction on the taped statement to read: “Mr. Youngblood gave the defendant a polygraph test, and Mr. Youngblood informed the defendant that he had failed the polygraph test” rather than saying that Mr. Youngblood had concluded that appellant failed the test. The prosecutor objected.
Counsel argued that Moody rather than Youngblood administered the polygraph and that the instruction should be modified to so state. After further argument, the court ruled that it would modify the instruction to inform the jury that the defendant had requested to take a polygraph test; Ms. Moody administered the test; and told him he had failed the test.
At that point, appellant exercised his right not to testify, and the court took a personal waiver. No polygraph evidence was introduced by the defense.
Appellant now argues that the prosecutor improperly allowed Youngblood to invade the province of the jury to judge his credibility by allowing Youngblood to testify that his primary goal is to determine the truth. In addition, he complains that Youngblood was allowed to testify that if he believes a person is not truthful, he conducts an interrogation to obtain a confession. Appellant also argues that a question as to whether Youngblood “learned techniques to draw out truthful answers from suspects” was improper. Defense counsel objected to this question, which was asked in the context of Youngblood’s description of his duties. The court ruled: “Yes. We went over his background yesterday, so let’s move along.” The next question by the prosecutor was: “Is it important to you, in your goal, to be able to eliminate suspects if they are in fact being truthful in your opinion?” Youngblood replied: “Absolutely.”
Appellant argues that these questions invaded the truth-finding province of the jury by establishing that Youngblood could determine the truthfulness of appellant’s statements. He acknowledges that the court admonished the jury that while Youngblood’s goal was obtaining the truth, it was for the jury to judge the truth. He cites People v. Lee, supra, 95 Cal.App.4th at page 790 in arguing that the trial court erred in allowing the jury to hear about the polygraph examination and the interrogation based on the results of that examination.
In addition, appellant argues that the statement should not have been admitted under Evidence Code section 351.1, subdivision (b) because the tactics of Moody and Youngblood, civilian police employees, were “egregiously coercive.”
Appellant did not object to the admission of the redacted version of the interview, and has forfeited the issue. (People v Leonard (2007) 40 Cal.4th 1370, 1408.) We have examined the redacted transcript, and find no references to the polygraph examination or its results. As admissions by the appellant, the statements were “otherwise admissible” under Evidence Code section 1220, and therefore properly admitted under Evidence Code section 351.1, subdivision (b).
We are satisfied that the court’s admonition that the jury was to determine the truthfulness of the statement was sufficient to address Youngblood’s testimony regarding his goal of obtaining truthful statements or confessions. “We presume the jury followed the court’s detailed instructions regarding this matter and conclude that, in light of the instructions, there is no reasonable likelihood the jury was misled . . . . [Citation.] Accordingly, no prejudice is shown.” (People v. Smithey (1999) 20 Cal.4th 936, 961.)
Appellant also argues the statement was coerced and should have been excluded on that ground. “A defendant’s admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial court’s determination on the ultimate legal issue of voluntariness. [Citation.]” (People v. Williams (1997) 16 Cal.4th 635, 659.) “In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider ‘the totality of circumstances.’ [Citations.] Relevant are ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health [citation].’ [Citation.]” (Id. at p. 660.)
It is appellant’s burden to establish error. Since he failed to raise the issue in the trial court, we do not have an adequate record from which to consider application of the factors relevant to a determination of involuntariness. For both these reasons, appellant has forfeited the issue.
V
Appellant was sentenced to a term of 25 years to life for first degree murder, plus an additional 25 years to life for the gun use enhancement under section 12022.53, subdivision (d). He contends that imposition by the court of the indeterminate term violates his Sixth Amendment right to jury trial, under Cunningham v California (2007) 549 U.S. ___ [127 S.Ct. 856], Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. These cases require, generally, that a jury determine sentencing factors other than recidivism that lengthen a sentence. They do not apply to indeterminate sentencing. (People v. Black (2007) 41 Cal.4th 799.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. MANELLA, J.