People v. Gionis

892 P.2d 1199, 9 Cal. 4th 1196, 40 Cal. Rptr. 2d 456, 95 Daily Journal DAR 5745, 95 Cal. Daily Op. Serv. 3342, 1995 Cal. LEXIS 2651

• Court: California Supreme Court
• Decided: May 4, 1995
• Docket: S038982
• Status: Published

Opinions

Opinion

BAXTER, J.

On October 3, 1988, Aissa Marie Wayne and her friend Roger Luby were brutally assaulted by two men. Four men were arrested, including defendant Thomas Gionis, Wayne’s former husband. At defendant’s trial, the prosecutor argued that Wayne and defendant had been locked in a bitter custody battle over their young daughter, Anastasia, and that defendant was behind the assault. John Lueck, an attorney, was permitted to testify for the prosecution that defendant had told him, among other things, that Wayne had no idea how easy it would be for defendant to hire someone to “really take care of her,” and that if defendant were to do something, he would wait until an opportune time to act in order to avoid suspicion. The jury convicted defendant of conspiracy to commit an assault (Pen. Code, former § 182, subd. 1, as amended by Stats. 1989, ch. 897, § 15, p. 3062, now Pen. Code, § 182, subd. (a)(1); Pen. Code, § 240), conspiracy to commit a trespass (Pen. Code, former § 182, subd. 1, as amended by Stats. 1989, ch. 897, § 15, p. 3062, now Pen. Code, § 182, subd. (a)(1); Pen. Code, § 602.5), assault with a deadly weapon on Luby (Pen. Code, § 245, subd. (a)(1)), and assault with a firearm on Wayne (Pen. Code, § 245, subd. (a)(2)). Defendant was sentenced to an aggregate term of five years in state prison.

The Court of Appeal reversed defendant’s convictions. It determined that the trial court prejudicially erred in admitting the evidence of defendant’s statements to Lueck in derogation of the attorney-client privilege, even though the statements were made after Lueck had explicitly refused to represent defendant in the legal proceedings involving Wayne. The court also found that defendant was prejudiced by the prosecutor’s misconduct and improper disparagement of defense counsel in closing arguments.

We granted review in this case to determine whether defendant’s communications with Lueck were protected by the attorney-client privilege, and whether the prosecutor’s arguments constituted prejudicial misconduct. On the privilege issue, we hold that the Court of Appeal erred in disturbing the trial court’s determination that the privilege did not apply. In addition, we conclude that defendant’s statements were not inadmissible under Evidence Code section 352. Finally, we find that the Court of Appeal erred in determining that the prosecutor committed prejudicial misconduct. We therefore reverse the judgment of the Court of Appeal, and remand the matter to that court for further proceedings not inconsistent with this opinion.

I. Factual and Procedural Background

Defendant, a doctor, and Aissa Marie Wayne, daughter of the late movie actor John Wayne, were married in 1986. In February 1987, defendant and Wayne had a daughter named Anastasia.

Soon after the baby was bom, the marriage began to deteriorate. Defendant twice threatened to kill Wayne if she got in the way of his relationship with Anastasia. He also warned Wayne that if she left him he would flee to Greece with Anastasia and Wayne would never see her daughter again. Despite these threats, Wayne left defendant in June 1987, taking Anastasia with her.

A bitter custody dispute ensued. A few months after Wayne left defendant, she discovered that she was under surveillance by Dan Gal, a private investigator hired by defendant. Although Wayne knew she was being watched, she pursued her normal lifestyle.

Christine Foss was an employee of defendant at his clinics in Upland, Corona del Mar and Palm Springs. In July 1987, defendant told Foss of his anger over Wayne’s departure and said he could hire people to physically harm Wayne if she ever “messed with him.” Subsequently, defendant told Foss and a coworker to resign from his clinics after they went to watch Wayne play tennis in Corona del Mar. Foss did not report her conversation with defendant to the police until three months after the assaults on Wayne and Luby in October 1988.

John Lueck was an attorney who referred clients to defendant for medical evaluations. In May or June 1987, Lueck received a telephone call from defendant asking him to come to defendant’s home. Defendant was in tears. He said he had just been served with divorce papers, and he needed somebody to talk to because he was upset. Although Lueck initially declined to go to defendant’s home, he ultimately agreed to meet defendant after making it clear that he would not be willing to have any involvement as a lawyer in defendant’s dissolution case. Lueck refused to represent defendant because he knew both defendant and Wayne.

When Lueck arrived at defendant’s home, defendant said he was upset about the circumstances of the separation and about the fact that Wayne had taken the baby. Defendant displayed very wide mood swings, alternating between tears and anger. At one point during the visit, defendant showed Lueck a declaration by Wayne in support of an order to show cause, and indicated he would like to change venue from Orange County to Los Angeles County because Wayne was the daughter of one of Orange County’s most famous residents; the county airport was his namesake. Lueck, speaking as defendant’s friend, said he thought a change of venue might be appropriate, but did not offer to do it. Lueck also told defendant to quickly retain a good attorney.

While in one of his very angry moods, defendant showed Lueck some holes in a wall, as well as a closet door off its track in the bedroom. Defendant said that the altercation which resulted in the holes in the wall was nothing relative to what he was capable of doing. He also told Lueck that Wayne “had no idea how easy it would be for him to pay somebody to really take care of her.”

After hearing defendant make these statements, Lueck commented that if something were to happen to Wayne during the dissolution or a child custody dispute, defendant would certainly be the primary suspect. Defendant replied he “was too smart to do something like that at a time when it would be obvious that it was his responsibility.” Defendant then said that if he were to do something, he “would wait until an opportune time and circumstances [sic] so that suspicion wouldn’t be directed towards him.” Defendant also told Lueck he had friends, family and money in Greece available to him in the event he needed to leave the country. Lueck did not immediately contact the police about defendant’s statements because at the time he believed they were simply expressions of anger.

On a Friday in October 1987, defendant showed up at Lueck’s office, apparently upset with some papers that had been prepared by his counsel in his dissolution case. Defendant appeared desperate. He told Lueck that Wayne was trying to prevent him from having Anastasia at her baptism, that his attorney was unavailable, and that something had to be done immediately because people were leaving Greece that Friday afternoon for the baptism. Defendant pleaded with Lueck to go to court on an ex parte basis. Lueck agreed, but when he went to court, an irate judge told him that arrangements had already been made. The judge then accused Lueck of being part of an effort to harass Wayne. Lueck was paid $750 for the court appearance.

During January and February 1988, Wayne began a romantic relationship with Roger Luby. Wayne had been upset over the breakup of her marriage and the custody dispute, and she leaned heavily on Luby for emotional support. At some point, defendant made sarcastic remarks to Wayne concerning Luby and commented on the considerable amount of time that they spent playing tennis.

In the summer of 1988, Robert Comely visited Gal, the private investigator hired by defendant. At Gal’s house were Jerrel (or Jerry) Hintergardt and another man. Comely had agreed to help Gal by going with Hintergardt and the other man to serve papers regarding a custody dispute at a house in the beach area. Comely was unaware anything unlawful was planned, but he was uncomfortable and felt the situation was “not right.” Comely and the others left after the person for whom they were waiting did not come home.

On the morning of October 3,1988, Wayne and Luby attended an aerobics class in Corona del Mar. At approximately 11:30 a.m., they returned to Luby’s residence in Newport Beach. Hintergardt and a man named Jeffrey Bouey were waiting. They approached Luby and Wayne as Luby and Wayne exited their car in the garage, and asked Luby if his name was Roger Luby. Luby said yes.

Suddenly, the men drew guns. When Luby asked if they were joking, Hintergardt said, “This isn’t no fucking joke,” and struck Luby on the head with his gun. Hintergardt threatened to kill Luby if he yelled or screamed. He forced Luby to the ground, holding the gun to his head. After handcuffing Luby’s hands and ankles, Hintergardt repeatedly smashed Luby’s face into the concrete floor, warning him not to move or scream. Hintergardt then severed Luby’s right Achilles tendon with a knife, and attempted to do the same to the left tendon.

Meanwhile, Bouey held a gun to Wayne’s head and forced her to the ground. When Hintergardt finished with Luby, he handcuffed Wayne’s hands and feet. Hintergardt yelled at Wayne, then grabbed her hair and slammed her face into the concrete floor twice. Wayne felt her head split open and blood stream down her face. Hintergardt told her, “You’re fucking with the wrong people.”

After Hintergardt and Bouey left, Wayne and Luby were taken to a hospital for medical treatment. Wayne required more than two dozen stitches for the wound to her head. Luby received stitches on his head and on his severed right Achilles tendon. He had to wear a full hip-to-ankle cast for three weeks, then a knee-to-ankle cast for some time after that. Even after months of therapy, Luby’s right Achilles tendon felt dead and numb.

Gal, Hintergardt, Bouey and defendant were arrested. None of them testified at defendant’s trial. Telephone records, however, showed that more than 1,000 telephone calls were made between numbers connected to Gal and defendant (and calls between telephones connected to Gal and Hintergardt and Hintergardt and Bouey). Although there were never any calls directly between the numbers for defendant and Hintergardt or Bouey, a flurry of calls between the numbers for Gal and defendant occurred on October 3, 1988, just before and after the attack on Wayne and Luby. Several calls were placed between Hintergardt and Gal on that date as well. The records also revealed that, on the day after the attack, Gal called defendant’s number immediately after a police officer told Gal that his car was seen near the scene of an attack the day before, and that a detective would like to speak with him.¹ In addition, bank records showed that defendant paid a considerable amount of money to Gal during the period of the surveillance. By far the largest payment, $40,000, was paid within the two weeks preceding the attacks.

The jury found defendant guilty on all four charged counts: conspiracy to commit an assault, conspiracy to commit a trespass, assault with a deadly weapon on Luby, and assault with a firearm on Wayne.² After denying defendant’s motion for a new trial, the trial court sentenced him to an aggregate term of five years in state prison. Additionally, the court granted a motion for bail pending appeal, and set bail at $2 million.

The Court of Appeal reversed defendant’s convictions, finding that defendant was prejudiced by a combination of the trial court’s erroneous admission of defendant’s statements to John Lueck in violation of the attorney-client privilege, and the prosecutor’s misconduct and improper disparagement of defense counsel in closing arguments. We granted the People’s petition for review.

II. Discussion

A. Admission of Lueck’s Testimony

The first issue in this case concerns Lueck’s testimony that defendant told him: (1) “the altercation which resulted in the holes in the wall were nothing relative to what he [defendant] was capable of doing”; (2) Wayne “had no idea how easy it would be for him [defendant] to pay somebody to really take care of her”; (3) defendant “was too smart to do something like that [to Wayne] at a time when it would be obvious that it was his responsibility; and (4) “if he [defendant] were to do something, he would wait until an opportune time and circumstances [sic] so that suspicion wouldn’t be directed towards him.” We must determine whether these statements, all of which were made after Lueck refused to act as defendant’s lawyer, are protected under the attorney-client privilege. If defendant’s statements are found to be unprivileged, we must then decide whether the evidence nonetheless was inadmissible under Evidence Code section 352.³

1. Attorney-client Privilege

In the absence of a statute, no person has the privilege to prevent another from testifying or from disclosing any matter. This rule, codified at section 911, subdivision (c), reflects the Legislature’s clear intent to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. (§ 12, subd. (c); Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769 [190 Cal.Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214].)

Under section 954, a client holds a privilege to prevent the disclosure of confidential communications between client and lawyer. As pertinent here, a “client” includes a person who “consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity” (§ 951), while “confidential communications” include “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence” (§ 952). A client who has no guardian or conservator is the “holder of the privilege” (§ 953, subd. (a)), and only the holder may waive it. In codifying the attorney-client privilege, the Legislature determined that “ ‘the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.’ ” (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 600 [208 Cal.Rptr. 886, 691 P.2d 642], quoting City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235 [231 P.2d 26, 25 A.L.R.4th 1418].)

The attorney-client privilege is based on grounds of public policy and is in furtherance of the proper and orderly functioning of our judicial system, which necessarily depends on the confidential relationship between the attorney and the client. (People v. Velasquez (1987) 192 Cal.App.3d 319, 327 [237 Cal.Rptr. 366].) Without the ability to make a full disclosure of the facts to the attorney, the client risks inadequate representation: “ ‘Unless he makes known to the lawyer all the facts, the advice which follows will be useless, if not misleading; the lawsuit will be conducted along improper lines, the trial will be full of surprises, much useless litigation may result.’ ” (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d at p. 235.) The privilege “applies not only to communications made in anticipation of litigation, but also to legal advice when no litigation is threatened.” (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371 [20 Cal.Rptr.2d 330, 853 P.2d 496].) Thus, by encouraging complete disclosures, the attorney-client privilege enables the attorney to provide suitable legal representation. (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d at p. 235; see People v. Clark (1990) 50 Cal.3d 583, 620 [268 Cal.Rptr. 399, 789 P.2d 127].)

In the criminal context, “these policies assume particular significance: ‘ “As a practical matter, if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.” . . . Thus, if an accused is to derive the full benefits of his right to counsel, he must have the assurance of confidentiality and privacy of communication with his attorney.’ [Citations.]” (People v. Meredith (1981) 29 Cal.3d 682, 691 [175 Cal.Rptr. 612, 631 P.2d 46].)

To further its purposes, the attorney-client privilege does not require that the attorney actually be retained. “[W]here a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results.” (People v. Canfield (1974) 12 Cal.3d 699, 705 [117 Cal.Rptr. 81, 527 P.2d 633]; People v. Dorrance (1944) 65 Cal.App.2d 125,129 [150 P.2d 10]; Estate of Dupont (1943) 60 Cal.App.2d 276, 288-289 [140 P.2d 866].) The rationale for this rule is compelling: “no person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it.” (Estate of Dupont, supra, 60 Cal.App.2d at p. 289.)

Although the attorney-client privilege is essential to our system of justice, it can and does result in the withholding of relevant information from the fact finder. Therefore, “[t]he party claiming the privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.” (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729 [36 Cal.Rptr. 468, 388 P.2d 700]; Collette v. Sarrasin (1920) 184 Cal. 283, 288 [193 P. 571].)

On appeal, the scope of judicial review is limited. “When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations].” (D.I. Chadbourne, Inc. v. Superior Court, supra, 60 Cal.2d at p. 729.) In this case, the question is whether, as a matter of law, the record establishes that the incriminating statements attributed to defendant by John Lueck constituted information transmitted between client and attorney in the course of an attorney-client relationship.⁴

The trial court determined below that the statements attributed to defendant by Lueck were not protected by the attorney-client privilege. According to the record, Lueck, an attorney, was defendant’s friend and had been to defendant’s home approximately 15 times.⁵ The two shared a business relationship in which Lueck referred between 100 and 200 clients to defendant. In May or June of 1987, defendant telephoned Lueck and asked him to come to his house. Defendant was upset over having just been served with dissolution papers. Before defendant made any incriminating disclosure, Lueck specifically stated he would not represent defendant in the dissolution proceedings. Lueck was very clear that he in no way wanted to be involved in the dispute between defendant and Wayne. Although the record contains no explanation for the trial court’s refusal to find the privilege applicable, we may infer that the above evidence, which was uncontradicted by defendant, persuaded the court that no attorney-client relationship existed at the time of defendant’s disclosures.

In ruling that the trial court erred, the Court of Appeal placed heavy emphasis on other evidence in the record indicating that issues of a legal nature were discussed during Lueck’s visit to defendant’s home. This evidence consisted of Lueck’s testimony at the bail review hearing that defendant showed him some papers from the dissolution action, including a declaration by Wayne, which apparently contained assertions that defendant physically assaulted Wayne. Lueck read the declaration and asked defendant: “Is this true?” When defendant replied that most of it was, Lueck told defendant to retain capable counsel quickly. In addition, the subject of venue was brought up at some point, with Lueck commenting that a change of venue might be appropriate.⁶ Noting that for purposes of the attorney-client privilege, the term “client” is statutorily defined as “a person who . . . consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity” (§ 951), the Court of Appeal concluded that the privilege was not limited to those cases where the client agreed to pay the attorney for advice or where the attorney agreed to represent the potential client.

We cannot endorse the Court of Appeal’s apparent view that the attorney-client privilege applies whenever issues touching upon legal matters are discussed with an attorney. That has never been the law. Significantly, a communication is not privileged, even though it may involve a legal matter, if it has no relation to any professional relationship of the attorney with the client. (Solon v. Lichtenstein (1952) 39 Cal.2d 75, 79-80 [244 P.2d 907] [where client asked attorney to pursue transfer of cemetery lots to certain relative of client, balance of conversation concerning client’s family arrangements for division of property upon death was not privileged].) Moreover, it is not enough that the client seek advice from an attorney; such advice must be sought from the attorney “in his professional capacity.” (§ 951.)

In contrast to the authorities relied upon by the Court of Appeal, this is not a situation in which an individual disclosed information while exploring the possibility of retaining the lawyer. (People v. Canfield, supra, 12 Cal.3d at pp. 704-705 [privilege protects indigent defendant’s disclosures to public defender’s representative, including defendant’s financial eligibility statement]; see also People v. Dorrance, supra, 65 Cal.App.2d at p. 129; Estate of Dupont, supra, 60 Cal.App.2d at pp. 288-289.) Nor is the situation here similar to that in Benge v. Superior Court (1982) 131 Cal.App.3d 336 [182 Cal.Rptr. 275], in which the court found privileged communications made at a closed union meeting attended by union members, two attorneys whose law firm was under a retainer agreement to provide legal advice to both the union and its members, and possibly a doctor. In that case, the union members had gone to the meeting for the purpose of discussing their legal rights against the employer and others for job-related injuries. (131 Cal.App.3d at pp. 347-348.) Unlike the factual scenarios in those decisions, the record here demonstrates that defendant was told in no uncertain terms, prior to making any of the challenged communications, that Lueck wanted no involvement in the legal proceedings concerning defendant and Wayne. The instant case thus finds no parallel in those decisions.

While it is firmly established that the privilege protects confidential communications made during initial consultations with an attorney, neither the relevant statutory provisions nor California decisional law suggests that the privilege extends to disclosures made after the attorney refuses to undertake representation. Indeed, such a proposition seems to stand in direct contradiction to one older decision, Finnell v. Finnell (1909) 156 Cal. 589 [105 P. 740]. In that case, an attorney was permitted to testify, over a defendant’s objection, concerning a conversation in which the attorney expressed a brief legal opinion in reply to a question. There we held that the defendant’s claim of attorney-client privilege was properly rejected, noting that the attorney “further said that he was not anybody’s attorney in the matter.” (156 Cal. at p. 602.) Nonetheless, while that decision is apposite, we hesitate to find it dispositive because its facts indicate that an unauthorized third person was present when the challenged remarks were made, and the holding did not specify the grounds for rejection of the privilege. (See ibid.)

Although there is a dearth of California case law directly addressing the issue, authorities in other jurisdictions appear to uniformly hold that the attorney-client privilege does not protect statements made after an attorney declines employment. (E.g., State v. Hansen (1993) 122 Wn.2d 712 [862 P.2d 117, 121]; United States v. Dennis (2d Cir. 1988) 843 F.2d 652, 657; State v. Iwakiri (1984) 106 Idaho 618 [682 P.2d 571, 574, fn. 1]; McGrede v. Rembert Nat. Bank (Tex.Civ.App. 1941) 147 S.W.2d 580, 584; Farley v. Peebles (1897) 50 Neb. 723 [70 N.W. 231, 233].)⁷ As the Washington Supreme Court reasoned in State v. Hansen, supra, once the attorney refused to represent the defendant and explained that he might be better off finding another attorney, there was no basis for the defendant to form a reasonable belief that an attorney-client relationship existed. (862 P.2d at p. 121.)

This viewpoint is shared by the authors of two leading treatises on evidence. In Wigmore’s words, “if the client continues his communication after the attorney’s refusal to act for him, or if a person knowingly attempts to retain one who is already retained by the opponent and therefore was not retainable by the consultant, he does not need or deserve the protection of the privilege.” (8 Wigmore, Evidence (McNaughton ed. 1961) § 2304, p. 587, fn. omitted.) McCormick agrees, noting: “Of course, statements made after the employment is declined are not privileged.” (1 McCormick on Evidence (4th ed. 1992) The Client’s Privilege, § 88, p. 322, fn. 3.)

While not controlling, the above authorities are compelling in their logic. Although we are not convinced that the Evidence Code in California requires the adoption of a bright line rule that any communication made after an attorney’s refusal of representation is unprivileged as a matter of law, nonetheless we are persuaded that a person could have no reasonable expectation of being represented by an attorney after the attorney’s explicit refusal to undertake representation. (Compare with People v. Gardner (1980) 106 Cal.App.3d 882, 887 [165 Cal.Rptr. 415] [criminal suspect’s letter, which was addressed to public defender’s office but seized by police prior to its delivery, found to be privileged where letter contained request for legal advice and suspect had a reasonable expectation of being represented by public defender].) Moreover, evidence of an attorney’s express refusal of representation may give rise to a reasonable inference that, in continuing to speak to the attorney, the person is not thereafter consulting with the attorney for advice “in his professional capacity.”

In this case, Lueck’s unequivocal refusal to represent defendant, made before any of the incriminating disclosures were made, detracts significantly from defendant’s claim of privilege. There is no evidence indicating that, at the time of Lueck’s visit to his home or when he made the incriminating statements, defendant did not understand Lueck’s position. Defendant’s insistence on talking with Lueck, despite Lueck’s clear and reiterated unwillingness to act as defendant’s lawyer or to have any involvement in defendant’s legal dispute with Wayne, gives rise to the reasonable inference that defendant sought to speak with Lueck in his capacity as a friend, not as an attorney.⁸ Taken together, this evidence lends substantial weight to the conclusion that, even though legal topics were discussed, defendant was not consulting with Lueck for advice in his professional capacity. Accordingly, the record adequately supports the trial court’s determination that no attorney-client relationship existed.⁹ That Lueck agreed some four or five months later to represent defendant on a one-time emergency basis, and that the disclosures surrounding this emergency matter were found to be privileged by the trial court, fail to undermine the conclusion that the earlier communications were unprivileged. (See Carroll v. Sprague (1881) 59 Cal. 655, 660.) Under these circumstances, it was error for the Court of Appeal to disturb the trial court’s determination. (D.I. Chadbourne, Inc. v. Superior Court, supra, 60 Cal.2d at p. 729.)¹⁰

2. Section 352

Defendant argues that, even if the privilege does not apply, Lueck’s testimony should have been excluded as being substantially more prejudicial than probative. (§ 352.) We disagree for the reasons stated below.

As indicated above, the challenged testimony included defendant’s statements that Wayne had no idea how easy it would be for him to hire someone to “really take care of her,” that defendant was too smart to do something to Wayne in an obvious manner, and that if he were to do something, he would wait until an opportune time to avoid suspicion. Since the principal issue in the case was the identity of the person who prompted the physical assault on Wayne and Luby, these statements were of significant probative value as evidence of defendant’s motive, plan and design.

We reject defendant’s contention that the statements attributed to him were not probative because they were made long before the assaults occurred and were therefore remote. We are also unpersuaded by his argument that the statements were simply expressions of hurt and anger made on the day Wayne left him. Even though the statements were made almost a year and a half prior to the assaults, they were not so remote as to be lacking in probative value, especially since the statements themselves indicated that if defendant were to do something, he would time his actions so that he could avoid suspicion. Moreover, whether the statements reflected merely a transitory state of mind, as opposed to something more, was a question for the jury to decide.

In light of the highly probative nature of the statements, the trial court acted well within its broad discretion under section 352 in concluding that the potential for prejudice was outweighed. As we recently explained: “The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.” ’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638 [250 Cal.Rptr. 659, 758 P.2d 1189], italics added.) No error appears.¹¹

B. Prosecutorial Misconduct

The Court of Appeal determined that misconduct by the prosecutor in rebuttal argument independently required reversal of defendant’s convictions. In the words of the court: “After virtually objectionless and unobjectionable arguments by both lawyers, the prosecutor rose to deliver a lengthy, vitriolic rebuttal laced with personal attacks on defense counsel, whose skillful and scrupulously fair closing argument had put the prosecution case in considerable jeopardy.”

We recently explicated the principles governing prosecutorial misconduct claims as follows: “A prosecutor’s rude and 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. Harris (1989) 47 Cal.3d [255 Cal.Rptr. 352, 767 P.2d 619], citing Donnelly v. DeChristoforo (1974) 416 U.S. 637, 642-643 [40 L.Ed.2d 431, 436-437, 94 S.Ct. 1868].) But 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.” ’ [Citations.] Included within the deceptive or reprehensible methods we have held to constitute prosecutorial misconduct are personal attacks on the integrity of opposing counsel. [Citation.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204].)

Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. “To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.” (People v. Price, supra, 1 Cal.4th at p. 447; see also People v. Rowland, supra, 4 Cal.4th at p. 274.)

In reversing defendant’s convictions, the Court of Appeal cited various instances of what it believed to be prosecutorial misconduct during rebuttal argument. Many of these incidents should have been disregarded on procedural grounds because defense counsel failed to assign misconduct and request appropriate admonitions. (People v. Rowland, supra, 4 Cal.4th at p. 274; People v. Price, supra, 1 Cal.4th at p. 447.) After reviewing the record, we cannot conclude, as did the Court of Appeal, that defense counsel should be excused from objecting based on a reasonable belief that objections would have been futile.

Nonetheless, even if defendant’s waivers are ignored, the claims of misconduct must be rejected on the merits. As we shall explain, most of the challenged remarks did not constitute misconduct, and those few comments that were improper did not prejudice defendant.

The Court of Appeal first condemned the prosecutor’s comments regarding defense counsel's “lawyering.” In his closing argument, defense counsel contended that the prosecutor had not made his case because he failed to call Bouey, the person who forced Wayne to the ground at gunpoint. During rebuttal, the prosecutor contrasted this argument with defense counsel’s opening statement, in which he claimed, referring to Bouey, that the prosecutor was going to call “a liar” to testify. After noting that defense counsel was arguing out of both sides of his mouth,¹² the prosecutor stated, without objection, that this was an example of “great lawyering” which “doesn’t change the facts, it just makes them sound good.”

The prosecutor then read three classic quotations about lawyers: “[¶] ‘Lawyers and painters can soon change white to black. Danish Proverb.’ [¶] ‘If there were no bad people there would be no good lawyers.’ Charles Dickens. [¶] ‘There is no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth.’ Jean Giraudoux, 1935.” Although defense counsel lodged no objection to the above quotations, he successfully objected to the prosecutor’s fourth quotation: “ ‘You’re an attorney. It’s your duty to lie, conceal and distort everything and slander everybody.’ ” The trial court admonished the jury: “I will sustain the objection to the reference to the attorney’s duty to lie. An attorney is an officer of a court. It would be entirely inappropriate and a violation of their ethical standards and duties to the court to lie in court.” After this admonishment, the prosecutor read one last quotation by Shakespeare: “In law, what plea so tainted and corrupt but being seasoned with a gracious voice, obscures the show of evil.” Defense counsel did not object.

The Court of Appeal disapproved of the trial court’s admonition on the ground that it “impliedly approved the claims that lawyers change black to white, represent bad people, interpret the truth loosely, and have a duty to conceal, distort and slander.” We cannot agree.

As to the “lawyering” comments and four of the five quotations, defendant’s failure to object waives the issue on appeal. (People v. Rowland, supra, 4 Cal.4th at p. 274; People v. Price, supra, 1 Cal.4th at p. 447.) But even if the merits of the misconduct claim are considered, no impropriety appears in this case. Taken in context, the prosecutor’s remarks simply pointed out that attorneys are schooled in the art of persuasion; they did not improperly imply that defense counsel was lying.¹³ With regard to the prosecutor’s fourth quotation, we agree that it constituted improper argument, even though it was directed at attorneys generally, and thus to the prosecutor himself as well as defense counsel. Nonetheless, the trial court’s prompt admonishment adequately corrected any misconceptions that could have been conveyed to the jury.¹⁴

The Court of Appeal found further misconduct when, after commenting on the differences between defense counsel’s opening statement and the evidence actually presented at trial, the prosecutor was allowed to say over defense objection: “[Defense counsel]’s just doing his job. His job is to to [sic] get him off.” The court also found fault with the following statements which drew no objection: “And [defense counsel] tried to imply to you that we could call Mr. Gal when he knew better. Defense counsel knew we couldn’t. [¶] But why does he have to stretch? Why does he have to do lawyering?” We are not persuaded.

In People v. Bell, supra, 49 Cal.3d 502, we concluded that comments similar to those here were not necessarily improper. In that case, the prosecutor argued: “ ‘It’s a very common thing to expect the defense to focus on areas which tend to confuse. That is—and that’s all right, because that’s [defense counsel’s] job. If you’re confused and you’re sidetracked, then you won’t be able to bring in a verdict.’ . . . ‘It’s his job to throw sand in your eyes, and he does a good job of it, but bear in mind at all times, and consider what [defense counsel has] said, that it’s his job to get this man off. He wants to confuse you.’ ” (49 Cal.3d at p. 538.) After noting that the prosecutor had acknowledged that defense counsel’s comments were proper and that he was just doing his job, we found that the challenged remarks were appropriate as “a reminder to the jury that it should not be distracted from the relevant evidence and inferences that might properly and logically be drawn therefrom." (Ibid.) We also concluded, however, that “to the extent that the remarks might be understood to suggest that counsel was obligated or permitted to present a defense dishonestly, the argument was improper.” (Ibid.) Nonetheless, we rejected the claim of misconduct: “Had counsel believed the jury might misunderstand the prosecutor’s meaning, ... an objection should have been made, and the misleading aspect of the argument regarding counsel’s responsibility could have been cured by admonition. No objection was made.” (Ibid.)

In this case, the prosecutor’s comments were comparable to, though far milder than, the remarks in People v. Bell, supra, 49 Cal.3d at page 538. Here, as there, the challenged comments could properly be understood as a reminder to the jury that it should not be distracted from the relevant evidence. Moreover, while defense counsel here actually objected to at least one of the prosecutor’s comments, he did not do so on the basis that it could be misunderstood to suggest an improper meaning.¹⁵ Consistent with our reasoning in People v. Bell, supra, we conclude that the prosecutor’s remarks did not exceed the bounds of permissible vigor. (See also People v. Breaux (1991) 1 Cal.4th 281, 305 [3 Cal.Rptr.2d 81, 821 P.2d 585] [no misconduct to refer to law school trial tactics class where students are taught that if they do not have either the law or the facts on their side, “ ‘try to create some sort of a confusion with regard to the case because any confusion at all is to the benefit of the defense’ ”]; People v. Goldberg (1984) 161 Cal.App.3d 170, 190 [207 Cal.Rptr. 431] [no misconduct to argue defense counsel’s job was to confuse the jury on the issues and sidetrack the jury’s deliberations].)

The Court of Appeal also observed that the prosecutor had a disagreeable habit of referring to defense counsel’s objections as “screaming” or “yelling.” The record shows that the prosecutor did this several times, and that defense counsel objected to some, but not all, of these references. For instance, after an objection to an argument was properly overruled, the prosecutor remarked: “He can scream until he’s blue in the face, but the evidence is the evidence.” This remark drew no objection. Another time, after a different defense objection was properly overruled, the prosecutor commented: “You scream when you get hurt. And this evidence hurts. He can yell all he wants, ladies and gentlemen, but it’s not right, it’s not fair what he’s doing.” This time, defense counsel objected and said: “I’m not screaming” and “I am entitled to object when I think it’s appropriate. I am not misbehaving by objecting.” This latter incident led the trial court to criticize both sides for making speeches while objecting and for not directing their comments to the court. The matter concluded with the court ultimately overruling defense counsel’s objection that the prosecutor’s comments were improper.

While we do not endorse the cited conduct, it did not render the trial fundamentally unfair. Nor did it amount to a deceptive or reprehensible method of persuasion. Accordingly, it did not constitute misconduct under federal or state standards. (Donnelly v. DeChristoforo, supra, 416 U.S. at pp. 642-643 [40 L.Ed.2d at pp. 436-437]; People v. Espinoza, supra, 3 Cal.4th at p. 820.)

Additionally, the Court of Appeal criticized the prosecutor’s request that the jury not treat defendant differently from any other defendant because he was able to afford a nationally known attorney,¹⁶ as well as the prosecutor’s assertion that defense counsel bullied witnesses.¹⁷ The court’s criticisms, we conclude, were unjustified. The challenged remarks, both of which were made without objection, did not insinuate that defense counsel engaged in deceptive tactics. And contrary to the court’s opinion, the remarks did not suggest to the jury that it penalize defendant for retaining a nationally known attorney. No misconduct appears.

The Court of Appeal also found that, notwithstanding the lack of an objection, the prosecutor improperly and prejudicially appealed to religious principles by quoting from the Book of Proverbs, chapter 24. (See People v. Wash (1993) 6 Cal.4th 215, 260-261 [24 Cal.Rptr.2d 421, 861 P.2d 1107] [prosecutor invoked Bible to demonstrate legitimacy of capital judgment and improperly implied that defendant deserved death under God’s law].) We cannot agree.

In the first place, it is doubtful that the prosecutor’s quotation was improper. (See fh. 18, post.) The comments were rather brief and did not appear calculated to appeal to the jury’s religious passions or prejudices. (See People v. Williams (1988) 45 Cal.3d 1268, 1325 [248 Cal.Rptr. 834, 756 P.2d 221] [rejecting claim of misconduct involving prosecutor’s brief and neutral quotation from Book of Exodus].) In any event, even if it is assumed that the comments were improper, they did not serve to “ ‘diminish the jury’s sense of responsibility for its verdict and . . . imply that another, higher law should be applied . . . , displacing the law in the court’s instructions.’ ” (People v. Wash, supra, 6 Cal.4th at p. 261, quoting People v. Wrest (1992) 3 Cal.4th 1088, 1107 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) Viewed in context, the prosecutor’s reading of the passage simply served to redirect the jury’s attention to the evidence and its duty to convict or acquit defendant based on that evidence.¹⁸ Thus, “[tjhere is no possibility that the jury would have reached a more favorable verdict had the perceived misconduct not occurred.” (People v. Wash, supra, 6 Cal.4th at p. 261.)

Finally, defendant, like the Court of Appeal, claims that all of the aforementioned conduct, when considered together, constituted misconduct in the nature of that censured in cases such as People v. Herring (1993) 20 Cal.App.4th 1066 [25 Cal.Rptr.2d 213] and People v. Bain (1971) 5 Cal.3d 839 [97 Cal.Rptr. 684, 489 P.2d 564]. On the contrary, both of those cases reflected extreme instances of prosecutorial misconduct. In People v. Herring, supra, the prosecutor argued: “ ‘[m]y people are victims. His people are rapists, murderers, robbers, child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth ....’” (20 Cal.App.4th at p. 1075.) In effect, the argument accused defense counsel of suborning perjury and implied that defense counsel did not believe his own client. It also implied that all those accused of crimes whom defense counsel represented were necessarily guilty of heinous crimes. (20 Cal.App.4th at pp. 1075-1077.) Similarly, in People v. Bain, supra, the prosecutor not only asserted that defendant and his counsel had fabricated a defense, but he also attacked the integrity of counsel and the office of the public defender. Additionally, the prosecutor referred repeatedly to racial matters, stating at one point that he, as a Black man, would not be prosecuting a Black defendant unless he personally believed the man to be guilty. (5 Cal.3d at pp. 845-846.)

The instant case bears no resemblance to those decisions. We have reviewed a videotape of the closing arguments, and conclude that, taken in context, nearly all of the challenged remarks properly served to remind the jury of its duty to render a decision based on the evidence and nothihg else. Furthermore, any possible misleading effect of the one clearly improper remark—i.e., the quotation referring to the duty of an attorney to lie, conceal, distort and slander—was adequately addressed by the trial court’s admonitions. Accordingly, the Court of Appeal erred in reversing defendant’s convictions on the basis of the conduct addressed above.¹⁹

III. Disposition

The judgment of the Court of Appeal is reversed, and the matter is remanded to that court for further proceedings not inconsistent with this opinion.

Lucas, C. J., Arabian, J., George, J., atid Werdegar, J., concurred.

1 The police officer approached Gal while he was parked near the house where Wayne had moved with Anastasia after the attack.

2 This was defendant’s second trial. At his first trial, defendant had been charged with two conspiracy counts alleging several overt acts in addition to the two alleged in each count here. Defendant also had been charged with threatening and dissuading witness Aissa Wayne from testifying, false imprisonment and burglary. Lueck did not testify at the first trial, which ended with a deadlocked jury.

3 All further statutory references are to the Evidence Code unless otherwise indicated.

4 We observe that, under section 956, there is no privilege if the services of a lawyer were sought or obtained “to enable or aid anyone to commit or plan to commit a crime . . . .” Moreover, under section 956.5, effective January 1, 1994, there is no privilege if the lawyer reasonably believes that disclosure of a confidential communication “is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.” Since the People make no contention in this court that these provisions are applicable in this case, we express no views on the matter.

5 The record indicates that the parties had stipulated the trial court could consider Lueck’s testimony at a bail review hearing before the municipal court and a police report of Lueck’s statements to Sergeant Jackson of the Newport Beach Police Department. The record also shows that the trial court heard live, but limited, testimony from Lueck in which he confirmed that the State Bar had closed, without prejudice, its investigation into a complaint filed on behalf of defendant against. Lueck. Lueck also offered corrections to perceived factual errors in Sergeant Jackson’s report.

We note that the magistrate excluded Lueck’s testimony at the bail review. During defendant’s first trial, the People did not challenge this ruling and did not offer Lueck’s testimony. At the retrial, the People moved, in limine, to admit this evidence, disputing that it was privileged or otherwise inadmissible under section 352.

6 The alleged discussion regarding venue is not contained in the police report at all, and is only briefly mentioned in the bail review hearing transcript. According to the transcript, defendant apparently asked Lueck about a change in venue, and Lueck responded that it might be an appropriate thing to do, but did not offer to do it.

7 We looked for authority to the contrary, but found none.

8 Justice Mosk’s reliance upon People v. Fentress (1980) 103 Misc.2d 179 [425 N.Y.S.2d 485] is misplaced. (See dis. opn., post, at p. 1232.) Unlike the situation here, Schwartz, the attorney in that case, had not refused professional involvement before his friend made an allegedly privileged communication. Significantly, however, the court in People v. Fentress, supra, agreed that such a refusal would have defeated the privilege. (425 N.Y.S.2d at p. 490 [“there would be no privilege if . . . Schwartz was acting solely as a friend, abjuring professional involvement. . . .”].)

9 After the trial court ruled that defendant’s statements were not protected by the attorney-client privilege, other evidence was presented to the jury that further supported the inapplicability of the privilege. Lueck testified that, after initially refusing defendant’s request to come to his house, he ultimately agreed to see defendant “after telling him that I had previously told him that I would not be willing to have any involvement as a lawyer in his divorce.” Lueck’s trial testimony also supported the reasonable inference that defendant, who was distraught over having been served with divorce papers, simply wanted a shoulder to cry on and did not seek to speak with Lueck in his professional capacity as a lawyer. In Lueck’s words, defendant “was in tears” and told Lueck “that he was very upset and he needed somebody to talk to because of the fact that he was upset.”

We also note that, at the time of the hearing on the admissibility of Lueck’s testimony, the prosecutor had submitted a letter written by Lueck to the State Bar that defended his appearance as a witness against defendant. The Court of Appeal relied on this letter in reversing the judgment, finding that it evidenced Lueck’s self-interest and inconsistent statements with regard to his conversations with defendant. Because it is unclear from the record whether the parties actually stipulated to the trial court’s consideration of the factual assertions contained in this letter (see fn. 5, ante), we did not consider it in drawing our conclusions. However, assuming the letter is properly considered, we observe that it provides in pertinent part: “[¶] In or about the spring of 1986,1 became personally acquainted with Thomas A. Gionis, M.D. and his new wife at the time, Aissa Wayne Gionis (John Wayne’s daughter). Dr. Gionis invited me to have lunch with him and his wife. His primary purpose was to solicit referrals from me to his medical practice located in an adjacent City to the location of my office. Throughout the succeeding year, I saw both Dr. Gionis and his wife Aissa who worked at his office. While I never considered myself a close personal friend of either, the relationship with both of them was friendly, and I did not favor either of them over the other. [¶] In or about April 1987,1 received a call from Dr. Gionis at my office, who at the time was clearly in an highly emotional state. He indicated that he and Aissa were separated, and that a divorce and child custody case were soon to follow. I immediately told him that I would not represent him against her, and that I did not wish to become involved in litigation between them. At the time, he was extremely upset emotionally, and asked that I come visit him at his home in the capacity of a friend, not a lawyer. I made it perfectly clear before I left my office to come to his home that I was seeing him strictly as a friend, and not as a lawyer, and that I would avoid any legal questions concerning the disagreements between them. [¶] While at his residence on this occasion, I listened to his emotional upset over being separated from his baby, as well as the disagreements between them as husband and wife. On those occasions in which he attempted to ask legal questions, I reminded him of my unwillingness to become involved in the case, and urged that he seek counsel immediately. The only subject even approaching legal advise [sic] during that conversation involved whether or not he should retain counsel in the East District of Los Angeles Superior Court where they both lived as husband and wife, or within the County of Orange where Mrs. Gionis had filed her divorce action. I mentioned he could speak to his attorney regarding a change of venue.” In our view, the factual assertions set forth in this letter are substantially consistent with Lueck’s other statements and fail to compel a different result.

10 In her concurring and dissenting opinion, Justice Kennard appears to conclude it was harmless error for the change of venue communications to have been admitted at trial. (Conc. & dis. opn., post, at pp. 1224-1225.) We note that it was defense counsel, not the prosecutor, who elicited Lueck’s trial testimony about the venue communications, and that defendant is not claiming prejudice over its admission.

11 Defendant also seems to suggest that, in closing arguments, the prosecutor misused the evidence introduced through Lueck. We reject any such claims. At trial, defendant failed to make any objections or request any admonishments. (People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610]; see also People v. Rowland (1992) 4 Cal.4th 238, 274 [14 Cal.Rptr.2d 377, 841 P.2d 897].) Moreover, these matters are not properly raised: they are perfunctorily asserted without argument or authorities in support.

12 The prosecutor argued: “So ladies and gentlemen, when somebody tells you they can’t make their case because of Bouey, and then out of the same mouth they told you two weeks ago that Bouey is coming in here and Bouey’s a liar and Bouey is no good and how could you believe him, how can you believe what you’re hearing?”

13 Relying upon People v. Hawthorne (1992) 4 Cal.4th 43 [14 Cal.Rptr.2d 133, 841 P.2d 118], Justice Kennard concludes that the prosecutor committed misconduct in reading the unobjected-to quotations. (Conc. & dis. opn., post, at pp. 1225-1228.) We are not persuaded. In People v. Hawthorne, supra, the prosecutor pointedly argued that, while the state was obligated to present the truth and to make sure no innocent person was convicted, defense counsel was expected and permitted by law to disregard the truth in defense of his client. (4 Cal.4th at pp. 59-60, fn. 8.) Those comments were clearly objectionable because they suggested that counsel was obligated or permitted to present a defense dishonestly. (See People v. Bell (1989) 49 Cal.3d 502,538 [262 Cal.Rptr. 1,778 P.2d 129].) Here, however, the quotations did not seek to distinguish between the roles of the prosecutor and defense counsel and did not imply that counsel was offering a dishonest defense. In the context of this case, we are satisfied that the remarks properly served to remind the jury to focus on the relevant evidence and to not be swayed by argument alone. (Ibid.)

14 Defense counsel’s failure to request clarification or elaboration of the court’s admonishment supports our view that the jury, in hearing the admonishment, would have reasonably understood it to apply to the fourth quotation in its entirety, including the reference to concealing, distorting and slandering.

15 Defense counsel objected to the phrase “get him off’ as improper, arguing only: “He’s not on anything. He’s on trial.”

16 The prosecutor argued: “And the question you have to ask yourself is this. Would justice be served if somebody who had the resources, the lawyers, everything it takes to put on this type of a case, would justice be served if he got better treatment than any other man that sat in that chair? [¶] It’s a right, and he has a right to have a lawyer like Bruce Cutler in here. But is it justice served that you treat him differently simply because he does? And I’m not suggesting that you will. But ladies and gentlemen, please go back to the evidence.”

17 The prosecutor said: “Well, I’m going to submit this to you, ladies and gentlemen. Everybody has a different style in the courtroom. I’m sure outside of the courtroom we are all different. But one of counsel’s style [szc] is to bully when he’s in here with witnesses. And it’s his right. He is representing his client. But when you bully, you bully the weak. Kris Foss was a weak person. We know that just from some of her admissions.”

18 The prosecutor argued as follows: “[¶] And finally, let me say this. Counsel told you yesterday, he said—you know, and it’s true. I want to be real with you also. I want to tell you look, I want you to do what’s fair and just here, regardless of what you think of me, regardless of—just on the evidence. I want you to think long and hard. Because if this is a railroad job against him, then acquit him. Because if the cops and the D.A. and the witnesses have gotten together and done some of this stuff that’s been suggested, then he should be acquitted. If you think that I’m pulling punches, hold it against me and acquit him. [¶] But if it’s not, if it is not, if there is evidence, if you look at that evidence and you say hey, I think that the evidence is there, if after looking at that evidence—I ask you this. Would it be fair or would justice be served for you to say not guilty to a guy simply because he has all the right titles and all the right lawyers and all the right resources, and yet if the evidence says that he did this cowardly deed, then that would be wrong. [¶] You know, since counsel referred us to biblical characters [this comment apparently referred to defense counsel’s accusation that John Lueck was a Judas because he lied], I would like to refer you to a passage from not the New Testament that he quoted, but the Old Testament. It’s the Book of Proverbs. [¶] In the Book of Proverbs, chapter 24, it says as follows: [¶] ‘That these are the sayings of wise men. It is wrong to sentence the poor and let the rich go free. Whoever says to the truly guilty you are innocent, peoples will curse him and nations denounce him. It will go well with those who convict the guilty and blessing will follow them.’ [¶] Ladies and gentlemen, if he’s railroaded, acquit him. But if he’s not, if the evidence is there, be forthright to go through that evidence. This evidence is probative of what occurred, ladies and gentlemen. Don’t let words and rhetoric get in the way of what the evidence is. [¶] I suggest to you if you find the evidence to be true, then don’t let the defendant believe that he can get away with this. Don’t condone what might have been done based on this evidence. [¶] I say might, I believe the evidence is there, ladies and gentlemen. You make that finding. That’s why we have a jury. Let the defendant know that you won’t be swayed by antics, rhetoric, whatever. That you can appreciate it, you can be entertained by it, but you can also say nope. The evidence tells me otherwise.”

19 We note that defendant’s brief on the merits contends that the prosecutor committed numerous other instances of misconduct, many of which were unobjected to, that were not mentioned in the Court of Appeal’s opinion. We decline to consider these contentions since they were not raised in the People’s petition for review or properly presented in defendant’s answer to the petition. (Cal. Rules of Court, rules 28(e)(2), (e)(5), 29.3(c).)