THE PEOPLE, Plaintiff and Respondent, v. ROPATI SEUMANU, Defendant and Appellant, 61 Cal. 4th 1293

Opinion WERDEGAR, J. A jury in Alameda County Superior Court convicted Ropati Seumanu in 2000 of the first degree murder of Nolan Pamintuan (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), kidnapping to commit robbery (§ 209, subd. (a)), and first degree robbery (§ 211).

The jury also sustained special circumstance allegations that Seumanu committed a murder while engaged in the commission of a robbery and a kidnapping. (§ 190.2, subd. (a)(17)(A) & (B).) In addition, the jury found that for all three felonies, defendant used a firearm; to wit, a shotgun. (Former § 12022.5.) On November 1, 2000, after weighing the aggravating and mitigating evidence, the jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) Following the decision in Jones v.

Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, holding that delays in implementing the California death penalty law rendered it unconstitutional under the Eighth Amendment to the United States Constitution, the parties filed supplemental briefs addressed to that issue. As explained below, we reject the Eighth Amendment claim and otherwise affirm the judgment in its entirety. I. Guilt Phase A. Facts Nolan Pamintuan was engaged to marry Rowena Panelo on May 18, 1996. He spent the evening before, May 17, with friends and family at the rehearsal dinner at a restaurant in Daly City.

Panelo gave him a wedding present that night; a black Movado watch engraved with their intended wedding date. After dinner, Pamintuan drove Panelo to her apartment and continued to Hayward, where he intended to spend the night at his father’s apartment. Pamintuan was wearing a brown Gucci watch, a gold engagement ring, a black leather sport coat, an Old Navy-brand peacoat, and boots. Shortly before midnight, residents on East 13th Street in Hayward heard a gunshot and saw a dark van speeding away with its lights off. One of the neighbors, Luis Hurtado, investigated and found a man bleeding to death in the street.

Police were called but the man died of what the coroner’s office later determined was a shotgun wound to the chest. Police found no identification of the victim at the scene. Pamintuan’s father woke at 5:30 the next morning and discovered his son had not come home. He located his son’s car, an Acura, parked nearby with a security device locked on the steering wheel, but the driver’s side door was unlocked. Pamintuan’s father called police and reported his son missing. At 12:15 p.m., police showed photographs to Pamintuan’s brother, Paul, who identified the shotgun victim as his brother, Nolan.

Panelo, the victim’s intended bride, was told of his murder around 1:30 p.m.; they had planned to marry at 2:00 p.m. that day. Defendant Ropati Seumanu was also known as Paki, Robert, Afatia Ropati Seumanu, and Ropati Afatia Seumanu. Defendant was a member of the Sons of Samoa street gang, which is affiliated with the Crips, and his gang moniker was alternately “Smurf” or “Mr. Smurf 1.” Defendant lived with his large extended family, including his father, in Hayward. Vui Seumanu, defendant’s father, was the equivalent of a tribal chief in Samoa and defendant was a direct heir to that title.

Approximately 24 people lived in a three-bedroom house with a small 500-square-foot outbuilding in the back, including defendant, his wife, Lefea “Lucy” Masefau, and her daughter, Peggy; defendant’s younger brother, Tautai Seumanu; Galuvae “Jay” Palega, his wife and family; 16-year-old Tony Iuli and his wife, Seu Seumanu; and others. Defendant slept in the outbuilding, along with Iuli and others; although the sleeping arrangements were somewhat fluid among the family members, Jay Palega asserted the outbuilding “was really [defendant’s] room,” and defendant kept his belongings in a cabinet there.

Defendant’s activities on the night of the murder were described by Tony Iuli and Jay Palega, both of whom pleaded guilty to reduced charges and testified for the prosecution. That night defendant declared his intention to steal a car in order to commit some robberies, so defendant, Iuli, Palega, and Tautai Seumanu set off to look for a suitable vehicle to steal. They eventually located a van to their liking and Tautai and defendant used a screwdriver to steal it.

Back at their family compound in Hayward with the stolen van, the group changed out of their Samoan clothes and donned dark clothes; defendant brought out firearms from the outbuilding. Iuli knew “something big” was going to happen when he saw the guns. Defendant spoke of committing robberies and everyone was “in on the deal.” The foursome left the house in the stolen van and began looking for a robbery victim. Palega was driving, Iuli was in the front passenger seat, and the Seumanu brothers, defendant and Tautai, were in the backseat.

After considering and rejecting a few possibilities, the group spotted a potential victim and attempted an armed robbery, but the intended victim escaped. When the group reentered the stolen van and drove off, defendant chastised Tautai for the botched robbery. They then observed Nolan Pamintuan parking his car and defendant said: “Let’s go back and get that guy who just got out of the car.” Palega turned the van around. Defendant, holding a sawed-off shotgun, jumped out of the van with Iuli and confronted the victim.

Pamintuan looked shocked and scared and offered defendant the inscribed black Movado watch his fiancée had just given him hours earlier, saying; “Just take this, that is all I have.” Defendant took it and then forced the victim into the van. As they drove off, defendant and Tautai stripped the victim of everything he had, including his boots, sport coat, pea-coat, ring, wallet, and watch. Defendant became angry when he discovered Pamintuan was carrying only $3 in cash. The victim offered to withdraw money from the bank and was by this time begging for his life.

They drove to a bank with an automated teller machine (ATM) and defendant warned Pamintuan that if he tried to escape, defendant would kill him. Tautai and Iuli accompanied Pamintuan to the ATM, where he withdrew $300 and gave it to defendant upon returning to the van. Iuli was worried that the ATM camera had photographed him, Tautai, and the van. The foursome wanted the victim to withdraw more money, and when Pamintuan told them of the daily $300 limit they became angry. Defendant ordered Palega to drive away from the bank and find a dark spot.

Defendant and Tautai argued over who would kill the victim, while Palega advised against killing him. Iuli exited the van in an attempt to stop the shooting, seeing no point, as Pamintuan had already given them all of his money. Pamintuan continued to beg for his life. Defendant then shot him in the chest with a single shot from the shotgun. The four then abandoned the stolen van in the neighborhood and went home. A neighbor noticed the van around 12:30 a.m., parked, but with its motor running.

When it was there the next morning, with the motor still running, the neighbor called police, who determined that it had been stolen from elsewhere in the city. It also bore bloodstains, later identified as belonging to Pamintuan. A few days later police determined the van bore Tautai Seumanu’s fingerprints. Further investigation at the bank revealed video footage from the ATM camera showing Pamintuan, flanked by two larger men, withdrawing $300 from the ATM at 11:45 p.m. The stolen van was also visible in the video.

A bank patron who used the ATM around the same time told police he saw two men go up to use the ATM, while at least one person stayed in the van with the motor running. When shown a picture of the victim, the witness thought the smaller of the men was Pamintuan but was not sure. Shown a photo lineup, the witness chose a picture of Tautai Seumanu as one of the men he saw at the ATM. Police obtained a search warrant for the Hayward home where Tautai lived with defendant and his extended family.

Defendant and Tautai were at a church function in San Francisco with their families but Iuli and Palega were present at the house and were detained by police. In a search of both the main house and the outbuilding, police found Pamintuan’s brown Gucci watch as well as a variety of ammunition, including shotgun shells. Police also found several items from Pamintuan’s wallet, including the receipt for the late-night ATM transaction. Police seized defendant’s leather sport coat and found an Acura car key in the pocket; later investigation revealed it was the key to Pamintuan’s car.

Subsequent DNA analysis revealed the sport coat was splattered with the victim’s blood. Police also found Pamintuan’s boots and peacoat. On a coffee table in the outbuilding, police found the box for the black Movado watch Panelo had given the victim the night he was killed, but it was empty. A criminalist later identified defendant’s thumbprint on a box of Remington shotgun shells. At this point, Pamintuan’s black Movado watch and engagement ring were still missing. Police detained Iuli and Palega in a patrol car while they searched the family home.

In a conversation surreptitiously recorded, Iuli and Palega expressed their hope that police would not find the murder weapon and they agreed to tell police that Palega’s mother had given him the Gucci watch. Police interrogated Iuli early that afternoon and he described the crime to police, informing them who was involved and the role defendant played. Police also questioned Palega, who initially told police the Gucci watch was a gift from his mother-in-law. Police then informed him they had recorded his conversation with Iuli.

They also falsely informed him the video recording from the ATM showed that Palega was the driver in the van. Palega then changed his story and admitted he was in the van at the bank, and that defendant was the one who shot and killed Pamintuan. Police were waiting for the Seumanu family when they returned to their Hayward home after church, and on their arrival arrested defendant and Tautai. Defendant had Pamintuan’s engagement ring and black Movado watch, inscribed with the victim’s intended wedding date, in his shirt pocket.

Tautai, interviewed by police, initially explained the gun he was holding accidentally fired. Then he claimed he shot the victim because he had seen their faces. He eventually admitted that defendant shot the victim, and that he (Tautai) had tried to take the blame out of loyalty to defendant, his older brother. Police, still looking for the murder weapon, returned to the Seumanu family home a few days later with a warrant to search defendant’s brown Dodge. They asked defendant’s wife, Lefea “Lucy” Masefau, if she had the keys to the car, but she told them defendant had the only set of keys.

Detective Cardes had a “low key,” “friendly conversation” with her, which he recorded on a microcassette recorder. Masefau did not mention defendant’s alleged alibi or otherwise protest defendant’s innocence. Police forced open the car’s trunk and found a sawed-off shotgun that was later determined to be the murder weapon. In his defense, defendant presented the testimony of his brother, Tautai Seumanu, who claimed that he was the one who killed Pamintuan. At the time of his testimony, Tautai had pleaded guilty to first degree murder for Pamintuan’s killing, and had been sentenced to prison.

Tautai admitted he told the police many different stories, including that defendant was the actual killer. He claimed he wore defendant’s black leather jacket during the crime (thereby explaining how it came to have the victim’s blood on it), and that he gave defendant the victim’s black Movado watch and engagement ring to sell. Tautai also claimed he gave defendant the murder weapon, asking that he dispose of it. Defendant’s wife, Lucy Masefau, testified that defendant was home with her the entire night of the murder.

She admitted she did not tell anyone about defendant’s alibi for several years, explaining that she was scared. She did not remember speaking to Detective Cardes after the crime and, after listening to the recording of their conversation, testified she did not think the woman on the tape — who identified herself as defendant’s wife — was she. She admitted she was on felony probation for three counts of grand theft auto, and that she had never reported her marriage, living arrangements, or defendant’s incarceration to social welfare authorities, which would have reduced her welfare payments.

She admitted she had placed some of the money from her welfare payments in defendant’s jail account. B. Discussion 1. Evidentiary Issues a. Tony Iuli’s Conversation with His Wife Tony Iuli, along with Jay Palega, Tautai Seumanu and defendant, kidnapped and robbed Nolan Pamintuan, but aside from Tautai’s testimony, the evidence showed that defendant alone fired the shotgun that killed the victim. The prosecutor eventually offered plea deals to Iuli and Palega in exchange for their testimony against defendant.

During Iuli’s testimony, the prosecutor, Angela Backers, questioned him about a conversation he had with his wife immediately following the crimes. When Prosecutor Backers asked Iuli what he told his wife, defense counsel objected on the ground the evidence was, among other things, hearsay. The court overruled the objection and Iuli replied that he told his wife that “your fucking brother blew some dude away.” Defendant contends the trial court erred in overruling his objection because the question called for hearsay to which no exception applied.

Further, he argues for the first time on appeal that the trial court’s alleged evidentiary error substantially undermined the reliability of his trial, violating his rights under the Eighth Amendment to the United States Constitution. (See, e.g., People v.

Martinez (2009) 47 Cal.4th 399, 423 [97 Cal.Rptr.3d 732, 213 P.3d 77] [“high court decisions state as a general proposition that the Eighth and Fourteenth Amendments to the United States Constitution prescribe heightened reliability for proceedings in capital cases”].) “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.

Code, § 1200, subd. (a).) “Hearsay is generally excluded because the out-of-court declarant is not under oath and cannot be cross-examined to test perception, memory, clarity of expression, and veracity, and because the jury (or other trier of fact) is unable to observe the declarant’s demeanor.” (People v.

Cudjo (1993) 6 Cal.4th 585, 608 [25 Cal.Rptr.2d 390, 863 P.2d 635].) To challenge a testifying witness’s own prior, out-of-court statement as inadmissible hearsay is unusual, but we agree with defendant that Iuli’s own statement to his wife constituted hearsay evidence, for it was an out-of-court statement that was offered for its truth, i.e., that Seu’s brother — defendant—killed someone.

Both defendant and the People discuss the applicability of various exceptions to the hearsay rule but we need not address them because, even were we to assume the trial court abused its discretion in admitting the evidence (see People v. Jones (2013) 57 Cal.4th 899, 956 [161 Cal.Rptr.3d 295, 306 P.3d 1136] [“a trial court’s decision to admit ... a hearsay statement. . . will not be disturbed on appeal absent a showing of abuse of discretion”]), any error was harmless under the Watson standard (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243]; see People v.

Duarte (2000) 24 Cal.4th 603, 618-619 [101 Cal.Rptr.2d 701, 12 P.3d 1110] [Watson standard applies to the erroneous admission of hearsay evidence]). Applying that standard, we conclude that, after examining the entire cause, including the evidence, it is not “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error” (People v. Watson, supra, at p. 836), because the evidence of defendant’s guilt was very strong, if not overwhelming.

Iuli testified that he was with defendant when they, along with Palega and Tautai, accosted the victim and robbed him, after which defendant shot and killed him. Iuli was thus an eyewitness to the crime. This evidence was corroborated by the testimony of Palega, also an eyewitness, and by evidence that Tautai told police that defendant was the shooter (although he later recanted). That Iuli told his wife the same information was cumulative to this eyewitness evidence and was thus not particularly prejudicial to defendant.

Although defendant argues the admission of the challenged statement in Iuli’s direct testimony, and not on redirect in an attempt to rehabilitate the witness’s credibility, “unduly magnified” the testimony such that it served as “an effective and persuasive, if deceptive, vehicle for bolstering Iuli’s credibility,” the claim is overstated. As Iuli’s testimony was corroborated by Palega’s testimony and evidence of Tautai’s pretrial statements to police, and the jury was apprised of the circumstances and terms of Iuli’s plea bargain, the jury had ample evidence with which to assess his credibility.

Moreover, although the trier of fact did not observe Iuli when he made the statement to his wife, defendant remained free to cross-examine Iuli in front of the jury and have him recount the circumstances of the statement. In other words, defendant had a fair opportunity to challenge Iuli’s “perception, memory, clarity of expression, and veracity” (People v.

Cudjo, supra, 6 Cal.4th at p. 608) about his assertion that defendant “blew some dude away.” Under the circumstances, it is not “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson, supra, at p. 836.) We reach the same conclusion with regard to defendant’s Eighth Amendment claim. Although the People argue defendant forfeited this claim by not specifically raising it at trial, we need not resolve the forfeiture question.

Assuming for argument the issue was preserved, because there was no prejudicial error under state law, any error regarding Iuli’s testimony about his statements to his wife did not render defendant’s trial so fundamentally unfair as to violate his right to a reliable penalty judgment under the Eighth Amendment to the federal Constitution. (People v. Carrington (2009) 47 Cal.4th 145, 194-195 [97 Cal.Rptr.3d 117, 211 P.3d 617].) b.

Iuli’s Opinion That Tautai Seumanu Intended to Take the Blame During the prosecutor’s examination of Iuli, the witness described a pretrial encounter he had when he, Tautai and defendant were together in a holding cell. Iuli testified that defendant asked him and Tautai to “take the blame off of him and that he would be out there taking care of us” by sending them money in prison. Iuli testified that he told defendant; “Fuck no. You take your own beef.” According to Iuli, Tautai remained silent and did not appear angry.

The following then occurred: “Q. [Prosecutor Backers]: What did Tautai do when [defendant] asked one of the two young guys to take the beef? “Mr. Ciraolo [defense counsel]: Objection. Hearsay. “The Court: Overruled. “Ms. Backers: Q. You can answer, sir. “A. He didn’t do nothing. “Q. What was the look on his face? “A. Don’t know. “Q. Did he get angry at [defendant] like you did? “A. No. “Q. Didn’t you tell me he looked like he was going for it? “A. Yes. “Mr. Ciraolo: Calls for opinion and conclusion. Ask it be stricken. “The Court: Sustained. It may be stricken. “Ms. Backers: Q.

Have you ever told anybody that Tautai looked like he was going to take the beef for somebody? “A. Yes. “Q. What made you say that? “Mr. Ciraolo: Calls ultimately for the man’s opinion and conclusion. It has been asked and answered. “The Court: No. That is asking for factors he based his conclusion on. Overruled. “Ms. Backers: Q. What made you say that, Mr. Iuli? “A. I think because it was his brother, his older brother.

He wouldn’t want to see his older brother go down.” (Italics added.) Citing the decision to overrule this last objection, defendant argues the trial court abused its discretion under state law, and also violated the Eighth Amendment, by permitting the prosecution to introduce improper opinion testimony from Iuli regarding Tautai’s intention to take the blame for the crimes.

By doing so, defendant claims, the trial court allowed the prosecution to impeach Tautai’s credibility before he was even able to take the stand and because Tautai was a key defense witness, such advance impeachment “had a strength far in excess of its actual probative force.” Further, defendant argues, the prejudice from the error was amplified by the prosecutor’s reference to Iuli’s testimony on this point in her closing argument. Contrary to defendant’s argument, Iuli’s testimony regarding his perceptions was not improper opinion evidence from a lay witness. Evidence Code

section 800 provides: “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (

a) Rationally based on the perception of the witness; and [¶] (

b) Helpful to a clear understanding of his testimony.” Likewise, we have explained that “[a] lay witness may testify to an opinion if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his testimony.” (People v. Farnam (2002) 28 Cal.4th 107, 153 [121 Cal.Rptr.2d 106, 47 P.3d 988].) Iuli was a percipient witness to the encounter in the holding cell and he thus spoke from personal knowledge gleaned from his own participation in, and observation of, the event in question.

Moreover, after he answered in the affirmative when asked whether he “ever told anybody that Tautai looked like he was going to take the beef’ for defendant, Iuli could properly describe his own motivation for telling someone that information. As noted, ante, the admission of evidence is generally tested by the abuse of discretion standard, and we find the trial court acted within its discretion in admitting Iuli’s description of the encounter in the holding cell. Because there was no error under state evidence law, defendant’s federal constitutional claim is meritless as well. (People v.

Carter (2003) 30 Cal.4th 1166, 1196 [135 Cal.Rptr.2d 553, 70 P.3d 981] [“Defendant’s claims of federal constitutional error, entirely dependent as they are on his claim of state law error, likewise must fail.”]; People v. Gurule (2002) 28 Cal.4th 557, 655 [123 Cal.Rptr.2d 345, 51 P.3d 224] [same].) c. Evidence That Defendant Put Out a Contract to Kill Iuli During his testimony, Tony Iuli several times mentioned, or referred to, his understanding that defendant had taken out a contract on his life, presumably to prevent him from testifying or as retaliation for his decision to assist the prosecution.

Defendant was initially successful in preventing questioning on this topic when the trial court sustained his hearsay objection. He did not, however, object to Iuli’s later testimony on the same subject, which referenced the alleged contract three different times. He now claims the admission of this “highly inflammatory” evidence violated the hearsay rule as well as his right to due process of law and a reliable determination of facts in a capital trial, guaranteed by the Eighth and Fourteenth Amendments to the United States Constitution.

We address the three instances separately, and conclude no prejudicial error occurred. The issue of an alleged contract to have Iuli killed arose following Iuli’s admission that his relationship with defendant soured after he told defendant to “take [his] own beef.” The prosecutor then asked: “Well, didn’t you get a contract put out on you?” Defense counsel immediately objected, citing “[h]earsay, opinion and conclusion,” which the trial court sustained.

The court also sustained an immediate follow-up objection of “no foundation.” The prosecutor pressed on and asked Iuli about an April 25, 2000, hearing at which both Iuli and Tautai were present in court. Iuli admitted he spoke to Tautai in Samoan at this hearing and told him of his intention to take an offered plea deal from the prosecution. Iuli advised Tautai that if the prosecution should offer him a similar deal, he should take it. The following colloquy then occurred: “Q. [Prosecutor Backers]: What else did you tell [Tautai]? “A. I told him I have some heat on me. “Q. You have some heat on you? “A. Yes. “Q.

What does that mean? “A. I have a contract out on me. “Q. Did you tell him who put that out on you? “A. Yes. “Q. What did you tell him? “A. I told him his brother did. “Q. His brother Paki [i.e., defendant], right? “A. Yes.” (Italics added.) Defense counsel did not object to this first reference to the alleged contract on Iuli’s life, an omission defendant acknowledges. The People argue defendant forfeited the claim by failing to object (Evid. Code, § 353, subd. (a); People v.

Hinton (2006) 37 Cal.4th 839, 894 [38 Cal.Rptr.3d 149, 126 P.3d 981]), but defendant contends we should find the issue is properly before us because his trial attorney was constitutionally ineffective for failing to object to the above testimony. As we have often observed, whether or not to object to evidence at trial is largely a tactical question for counsel, and a case in which the mere failure to object would rise to such a level as to implicate one’s state and federal constitutional right to the effective assistance of counsel would be an unusual one. (People v.

Abilez (2007) 41 Cal.4th 472, 493, fn. 3 [61 Cal.Rptr.3d 526, 161 P.3d 58].) An attorney may well have a reasonable tactical reason for declining to object, and “ ‘[i]f the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation.’ ” (Ibid.) Here we discern two possible reasons why counsel may have refrained from objecting.

First, counsel may have desired not to highlight the evidence by making an objection. “[T]he decision whether to object, move to strike, or seek admonition regarding [undesired] testimony is highly tactical, and depends upon counsel’s evaluation of the gravity of the problem and whether objection or other responses would serve only to highlight the undesirable testimony.” (People v.

Catlin (2001) 26 Cal.4th 81, 165 [109 Cal.Rptr.2d 31, 26 P.3d 357], italics added.) Second, defense counsel may have concluded — despite the trial court’s initial decision to sustain a hearsay objection — that the challenged evidence was not hearsay because it was admissible not for its truth but as evidence of Iuli’s state of mind that was relevant to his credibility. “Evidence is relevant if it has any tendency in reason to prove or disprove any disputed fact or consequence, including evidence relevant to the credibility of a witness. (Evid.

Code, § 210 [citation].) Thus, ‘ “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise relevant to [his] credibility and is well within the discretion of the trial court. [Citations.]” ’ [Citation.] ‘Moreover, evidence of a “third party” threat may bear on the credibility of the witness, whether or not the threat is directly linked to the defendant.’ ” (People v.

Abel (2012) 53 Cal.4th 891, 924-925 [138 Cal.Rptr.3d 547, 271 P.3d 1040].) That Iuli “was willing to testify against a former member of the group despite his fear of retaliation was supportive of the credibility of his testimony” and thus admissible despite the rule against hearsay evidence. (People v. Green (1980) 27 Cal.3d 1, 20 [164 Cal.Rptr. 1, 609 P.2d 468], overruled on other grounds in People v.

Martinez (1999) 20 Cal.4th 225, 239 [83 Cal.Rptr.2d 533, 973 P.2d 512].) Where a sound legal basis exists for the admission of evidence, an attorney is not ineffective for failing to object to its introduction. (People v. Majors (1998) 18 Cal.4th 385, 403 [75 Cal.Rptr.2d 684, 956 P.2d 1137].) The testimony that Iuli believed defendant had taken out a contract on his life was admitted not to prove the contract actually existed, but rather to bolster Iuli’s credibility by showing that he believed such a contract existed and was still willing to testify against defendant.

There being a plausible reason why counsel did not object, we cannot conclude on this record that counsel’s inaction lacked a reasonable tactical basis. In sum, not only did defendant’s failure to object forfeit the issue for appeal, but the substantive claim is meritless. The issue of the alleged contract on Iuli’s life arose again when he testified concerning what Tautai told him at that April 25, 2000, court hearing. This time, defendant adequately preserved the claim by making a timely, and continuing, objection: “Q.

And what did Tautai say when you said that his brother Paid had put a hit on you, or put some heat on you? “A. He said— “Mr. Ciraolo [defense counsel]: Hearsay. Objection. “The Court: Overruled. “Ms. Backers [the prosecutor]: Q. You can answer, sir. “A. He said don’t take — first he said he was going to take the blame, then he said: Don’t take the deal and he’ll try to talk to — try to talk to his brother. “Q. To take the heat off of you, right? “A. Yes. “Q. So you are sitting here in the courtroom and you are about to take the deal, right? “A. Yes. “Q. You tell Tautai that his brother has put a hit on you? “A.

Yes. “Q. You basically got a snitch jacket in this case, right? “A. Yes. “Q. You were the first one to confess back in May of ‘96? “A. Yes. “Q. And then on April 25th this year, here in this courtroom, when you told Tautai that his brother put a hit on you, he said he knew about it, right? “A. Yes. “Q. And he was going to try to talk you out of the deal? “Mr. Ciraolo: Excuse me. Continued objection as to what Tautai said on hearsay grounds. “The Court: Overruled.” (Italics added.) Defendant contends this passage contains two pieces of inadmissible hearsay.

The first is that Iuli believed that defendant had taken out a contract to have Iuli killed. As explained, ante, this evidence was not hearsay because it was admissible as circumstantial evidence of Iuli’s credibility, i.e., that he was willing to testify despite the perceived danger of his being killed as a snitch. The second piece of allegedly inadmissible evidence was that Tautai knew about the contract.

But the significance of Tautai’s testimony was not simply that he was aware that defendant had initiated a contract to have Iuli killed, but that Iuli believed Tautai could convince defendant to rescind the contract if Iuli would change his mind and refuse to assist the prosecution. Thus, Iuli testified: “Ms. Backers: Q. Tautai was trying to talk you out of taking the deal, right? “A. [by Tony Iuli]: Yes. “Q. And he told you that if you didn’t take the deal that he could talk to his brother about taking the heat off of you, righfi “A. Yes. “Q. What did you understand that to mean? “A. Excuse me? “Q.

What did you understand that to mean, that Tautai would talk to [defendant] about taking the heat off, that he would lift the contract1 “A. Yes.” (Italics added.) Defendant contends the information embedded in this testimony — i.e., that defendant had taken out a contract to have Iuli killed — was inadmissible hearsay. We assume this claim was preserved by defendant’s continuing hearsay objection “to what Tautai said,” but as we have explained, the hearsay rule was inapplicable because the evidence of the contract was admissible not for its truth but to show Iuli’s state of mind.

The further point — that Tautai could convince defendant to rescind the contract if Iuli changed his mind about testifying — was similarly admissible despite the hearsay rule, for this information was also relevant to Iuli’s state of mind and, thus, his overall credibility: Iuli believed he could avoid being killed if he would decline to assist the prosecutor, but he was willing to testify against defendant anyway.

The next part of Iuli’s testimony on which defendant relies for this argument occurred just after the trial court overruled defendant’s continuing hearsay objection to Iuli’s testimony regarding Tautai’s statements: “Q. [Prosecutor Backers]: And [Tautai] told you he was going to take the blame? “A. [by Tony Iuli]: Yes. “Q. And part of your deal is that if you requested, you would be housed out of state, right? “A. Yes. “Q.

During that conversation on April 25th, this year, towards the end of the conversation, did you tell Tautai that you have been sitting here for four years for something his fucking dumb-ass brother did? “A. Yes.” (Italics added.) Defendant relies on the highlighted portion of this testimony to argue the trial court abused its discretion in denying his continuing hearsay objection. This was evidence of an out-of-court statement made not by Tautai, but by Iuli, and was apparently offered for its truth (i.e., that Iuli had been in pretrial detention for a murder actually committed by defendant).

We need not determine whether this statement was improperly admitted because, like the statement that Iuli told his wife that “your fucking brother blew some dude away,” the admission of this hearsay statement, if error, was manifestly harmless.

Ample evidence, ranging from Tony Iuli’s and Jay Palega’s eyewitness accounts of the crimes, to evidence from Tautai Seumanu (before he recanted), as well as evidence that defendant was in possession of property stolen from the victim, that the victim’s blood was on defendant’s jacket, that the murder weapon was found in a car to which defendant had exclusive access, and that defendant’s thumbprint was on a box of ammunition that fit the murder weapon, supported the case against defendant.

Moreover, the statement evidence — assuming for argument that it was inadmissible hearsay — was provided by the declarant himself (Iuli) while on the stand, and the jury could thus fairly assess his credibility. In these circumstances, it is not “reasonably probable that a result more favorable to the appealing party would have been reached” had this stray comment been excluded. (.People v. Watson, supra, 46 Cal.2d at p. 836.) Any error was thus harmless.

We also find that the combined effect of any evidentiary errors in admitting certain comments Iuli made while testifying does not require reversal under either state law or federal constitutional law. In light of the ample evidence of defendant’s guilt, admission of the various stray comments defendant now challenges, even if error, together do not convince us that it was “reasonably probable that a result more favorable to the appealing party would have been reached” had these comments been excluded. (People v.

Watson, supra, 46 Cal.2d at p. 836.) There being no prejudicial error under state law, we also find that any error regarding Iuli’s testimony did not render defendant’s trial so fundamentally unfair so as to violate defendant’s right to due process and a reliable penalty judgment under the federal Constitution. (People v. Jones, supra, 57 Cal.4th at p. 933.) d. Admission of Gang Status List Prior to the parties’ opening statements, the court and attorneys discussed the various exhibits.

As to exhibit No. 46, a chart bearing gang nicknames, the prosecutor made a showing in support of admissibility, saying that after Pamintuan’s murder, while the four participants were in custody, defendant “wrote out, in handwriting, on a piece of paper this particular chart, which named him first, ‘Uso 4 Life’ means ‘Brothers for Life.’ “It names Paki [defendant] first, Mr. Smurf, and says America’s Most Wanted Samoans. This was a badge of honor for him, a stripe for him.

He did this after he committed the murder while he was in custody and he gave that to Tony [Iuli] and asked him to type it up on the computer at Juvenile Hall. “It is my position that the fact he wrote this out and said his name first, and then said Samoan Style America’s Most Wanted Samoans is an admission he did the murder, but indicates consciousness of guilt and indicates absolutely no remorse.” Defense counsel and the trial court both disagreed, the latter saying it was a “stretch” to characterize the document as an admission by defendant that he had murdered someone.

The prosecutor stated she planned on using the document when questioning Iuli and the court deferred judgment on it, saying, “We will cover it again.” The prosecutor did not, in fact, utilize exhibit No. 46 when questioning Iuli. When later cross-examining Tautai Seumanu, however, she referred to the exhibit in an attempt to impeach the witness. Tautai testified he did not remember the chart and had not previously seen the list.

The prosecutor noted that if a gang member commits a murder, he “eam[s] [his] stripes” and is “going to be number one on that list,” and then asked, “That is the whole idea behind it, right?” Tautai answered: “Some.” Tautai testified that he killed Pamintuan to earn his “stripes,” but admitted that although the murder “[w]ouldn’t necessarily move me to the top,” it would earn him respect in the gang. The trial court overruled defense objections that the questioning lacked a proper foundation (although it sustained some objections the questioning was argumentative or assumed facts not in evidence).

Tautai confirmed “uso” meant “brothers for life,” and that the first person on the list (“MR. SMURF”) referred to defendant, the third person on the list (“MAC.JAY”) was Jay Palega, the fourth person (“TEO”) was Iuli’s brother, Tim Tao, who died in 1998, and the next entry, “T.SPOON,” referred to himself, Tautai “Teaspoon” Seumanu. Counsel objected on the basis that the prosecutor had failed to lay a proper foundation, and the prosecutor agreed to establish that the exhibit was in fact a gang status list. The prosecutor then asked the witness, “Mr.

Seumanu, ... if you pulled the trigger in this murder, explain to the jury why you are number five on that list,” whereupon the trial court sustained defendant’s renewed objection (based on lack of foundation) and the prosecutor moved on. In a somewhat scattershot argument, defendant first contends the admission of testimony concerning the meaning of exhibit No. 46 was evidentiary error because the prosecutor failed to properly authenticate the exhibit and because it was hearsay. Defendant forfeited his hearsay claim because he failed to object on that ground.

He did, however, object to the evidence on the ground that it was not properly authenticated, thereby preserving the issue for our review. We agree the prosecutor never authenticated exhibit No. 46: “Authentication of a writing is required before it may be received in evidence.” (Evid. Code, § 1401, subd. (a).) “Authentication of a writing means (

a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (

b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) Tautai specifically denied having seen the document previously and disclaimed any knowledge that defendant was its author.

Accordingly, Tautai could not authenticate the document, and because the prosecutor did not otherwise introduce evidence showing the list was in fact a status list for the Sons of Samoa street gang, the trial court erred in permitting the prosecutor to question Tautai about it. (Tony Iuli would later authenticate the document when he testified at the penalty phase.) But defendant’s objection was eventually sustained, diminishing the possible prejudice.

And Tautai exhibited general familiarity with the nicknames in the document and with the hierarchy of the Sons of Samoa gang in general, information that could have been elicited without reference to the list. Under the circumstances, we find any error in failing to authenticate the list was harmless.

Second, defendant contends the prosecutor committed misconduct by capitalizing on the improper evidence, “inject[ing] herself into this case as a witness” and “purveying hearsay,” and “presenting information to the jurors that she could not reasonably expect to prove . . . by . . . other evidence.” He suggests his federal constitutional rights were violated. Although defendant did not object on grounds of prosecutorial misconduct, we will assume for purposes of argument that the ffitility of an objection excused his failure to do so. Turning to the merits, however, we find no misconduct.

The evidence of the gang status list was, for a time, admitted over defendant’s objection for lack of foundation so the prosecutor did not act unethically by continuing to question Tautai about it until the court eventually sustained defendant’s objection. The further claim Ms. Backers was “purveying hearsay” cannot be sustained because the trial court never ruled the gang status list was hearsay.

Finally, we have examined Backers’s examination of Tautai and find her use of leading questions, which necessarily included stating facts she assumed the witness would affirm or deny, was justified because Tautai was an obviously hostile witness. We thus reject the claim the prosecutor’s questioning of Tautai about the gang status list constituted misconduct. We further find no violation of defendant’s right to confrontation, due process, and a reliable penalty trial under the Sixth, Eighth and Fourteenth Amendments to the federal Constitution. 2.

Alleged Judicial Misconduct During his direct examination by the prosecutor, Tautai Seumanu proved an evasive and difficult witness. Although he previously, and tearfully, had informed police that defendant was the shooter, Tautai later pleaded guilty to the charged crimes, claimed to be the shooter himself and corroborated defendant’s alibi defense in his testimony. When questioned on the stand, however, Tautai refused to provide any specific information about the Sons of Samoa, the street gang to which he and defendant belonged.

Asked who was in the gang, he replied; “I can’t give no names” because “they are not in the case.” The prosecutor then remarked: “You are under oath to tell the truth. I know that doesn’t mean much to you.” Defense counsel quickly interposed an objection to this gratuitous comment, arguing it was improperly argumentative. The trial court sustained the objection, saying: “Ms. Backers, I know the temptation, but sustained.” (Italics added.) There was no further objection and the prosecutor’s questioning of Tautai continued.

Defendant now contends the trial court’s fleeting comment (“I know the temptation”) was judicial misconduct and demonstrated such profound and damaging judicial bias that we must reverse the judgment under both state law and the Eighth and Fourteenth Amendments to the United States Constitution. For several reasons, we disagree. At the threshold, we conclude defendant’s failure to object on this ground forfeited the claim for appeal. As a general rule, a specific and timely objection to judicial misconduct is required to preserve the claim for appellate review. (People v.

Geier (2007) 41 Cal.4th 555, 613 [61 Cal.Rptr.3d 580, 161 P.3d 104], overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 [174 L.Ed.2d 314, 129 S.Ct. 2527].) Although defendant argues he may be excused from this general rule because an objection would have been futile, the circumstances in no way suggest an objection and a request to have the jury admonished would have found an unsympathetic jurist. Were we to reach the claim despite its manifest forfeiture, we would find it meritless.

A trial court should of course refrain from making comments before the jury that might suggest it has allied itself with thé prosecution. (See People v. Harris (2005) 37 Cal.4th 310, 347 [33 Cal.Rptr.3d 509, 118 P.3d 545].) For example, “[a] trial court commits misconduct if it ‘persists in making discourteous and disparaging remarks to a defendant’s counsel . . . and utters frequent comment from which the jury may plainly perceive that the testimony of the witnesses is not believed by the judge, and in other ways discredits the cause of the defense . . . .’ ” (People v.

Fudge (1994) 7 Cal.4th 1075, 1107 [31 Cal.Rptr.2d 321, 875 P.2d 36].) The trial court’s comment defendant challenges does not contravene this rule. Not only was the comment solitary and fleeting, it was also ambiguous in that it may reasonably have been understood by the jury not as an expression of where the court’s sympathies secretly lay, but as merely a polite reminder to the prosecutor, upon sustaining the defense objection, to maintain her composure in the face of a recalcitrant and combative witness.

Finally, even if the issue were properly preserved and the remark construed as misconduct, the trial court’s single, brief comment could not possibly have been prejudicial. “ ‘ “[0]ur role ... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.” ’ ” (People v.

Abel, supra, 53 Cal.4th at p. 914.) On this subject it is worth noting that the jury was instructed with CALJIC No. 17.30, which instructs the jury to disregard any comment by the trial court that might suggest it disbelieved a particular witness. Under the circumstances, the trial court’s single, fleeting, and ambiguous interjection could not have prejudiced defendant in any way. 3. Alleged Prosecutorial Misconduct: Vouching a.

Introduction As noted above, defendant was charged jointly with codefendants Jay Palega, Tony Iuli, and Tautai Seumanu with the murder, aggravated kidnapping, and robbery of Nolan Pamintuan. As described in more detail below, the prosecutor offered Palega and Iuli a plea deal: in exchange for their testimony against defendant, they would be allowed to plead guilty to reduced charges. Both Palega and Iuli took the deal and testified against defendant.

In his opening argument, defense counsel mentioned the plea deal, noted the prosecutor offered the deal after defendant withdrew his speedy trial waiver (time waiver), and suggested the jury could infer the prosecutor did not believe she had a strong enough case to convict defendant without Palega’s and Iuli’s testimony.

The parties thereafter agreed to a set of stipulated statements (stipulations) informing the jury the prosecutor’s decision to offer the plea deals was unrelated to defendant’s decision to hasten his trial, and that she independently decided that Palega and Iuli bore reduced moral culpability for the crimes. Defendant now contends the evidence of the prosecutor’s subjective motivation for offering the plea deals was inadmissible, and her closing argument referencing that evidence was misconduct because she thereby improperly vouched for the credibility of her witnesses.

As we explain, defendant forfeited these arguments by failing to object, and the claims are meritless in any event. b. Background At the time of the crimes, Tony Iuli was 16 years old. By that time he had had multiple contacts with the justice system and knew, when arrested, he would not be treated as a juvenile. He also knew he was facing life in prison without possibility of parole for the crimes against Pamintuan. Jay Palega was 18 years old when Pamintuan was killed and learned while in pretrial detention that the prosecution did not intend to pursue the death penalty against him.

The prosecution filed the information in this case on June 19, 1997. Deputy District Attorney Angela Backers was assigned to prosecute the case on or around December 28, 1997. Attorney Michael Berger represented Iuli and approached Backers at least three times in 1999, attempting to obtain a plea bargain for his client. He was at that time unsuccessful. Defendant withdrew his time waiver on March 3, 2000, requiring that trial begin no later than May 2, 2000. Around this time the prosecution offered, and Iuli rejected, two plea bargains.

The first deal required that he plead guilty to first degree murder, accept a sentence of 25 years to life in prison, and testify against defendant at the guilt phase of trial. The second deal required that he plead guilty to second degree murder, accept a sentence of 15 years to life in prison, and testify against defendant at both the guilt and penalty phases of trial. Iuli rejected both of these offers because he believed prisoners with life terms would never be paroled by prison authorities. Palega, who was represented by Attorney William Muraoka, subsequently rejected the same offers for the same reason.

The prosecutor then offered a different deal, which Iuli accepted on April 26, 2000. Pursuant to this new deal, Iuli agreed to plead guilty to voluntary manslaughter, simple kidnapping, and attempted robbery, and to admit a firearm use enhancement, in return for a determinate prison sentence of 16 years eight months. The plea deal also required Iuli to testify truthfully against defendant at both the guilt and penalty phases of the trial. Iuli wrote a letter to Palega urging him to accept the same deal, which Palega did on May 15, 2000.

Both men eventually testified against defendant and identified him as the one who shot Pamintuan. Defendant was represented at trial by Attorneys Michael Ciraolo and Deborah Levy. In Ciraolo’s opening statement, he referred to the plea deals Iuli and Palega received: “And one thing I want you to remember is a particular day, and that is March 3d of this year. Because what occurred on that day is my client withdrew his time waiver, which meant he had to commence this trial within 60 days.

And after that date, the prosecution realized that they cannot make the case against my client, that they had to get him by testimony. “The prosecution’s case revolves around two people, Tony Iuli and Jay Palega. These men were former co-defendants of the defendant. They were charged with the same charges that my client was charged with, only the prosecution was not seeking the death penalty. The prosecution was only seeking, and has only sought, the death penalty against my client. Those two men were faced with prison, with life without possibility of parole.

They were to die in prison. “The prosecution approached them, through their counsel, and offered them, what we say in the criminal vernacular, deals. And the deal was that if they testify against my client on the guilt phase of the trial, they would receive first-degree murder convictions. They had to plead to first degree, which meant 25 years to life.

If they testified against my client at the penalty phase of the trial, they would get a second degree plea bargain, which was 15 years to life. “Both those men refused that offer. “The prosecution was compelled to renegotiate her position and ultimately offer both these men a fixed term of a maximum of 17 years in prison, 16 years, eight months. So no matter what happened, they would get no more than 17 years for their testimony. “When these men testify — they had given statements previously to the police. The prosecution worked with them with considerable time and effort to get their statements here in court.

When they testify, they are testifying under complete distrust by the prosecution because they have not been sentenced yet.” (Italics added.) The prosecutor did not object to this argument. But later, she expressed concern that defense counsel had misled the jury in two ways: (1) by suggesting she believed she had a weak case; and (2) by asserting that when she realized that defendant’s withdrawal of his time waiver would require her to go to trial, she approached counsel for Iuli and Palega and offered them a deal.

Contrary to these assertions, she explained, “The truth of the matter is that I never approached Mr. Berger or Mr. Iuli, his client, with a deal until the defense had approached me asking for a deal. “Mr. Berger, for over one year, was asking me for a deal that would include Tony [Iuli] testifying against the remaining three codefendants and identifying the shooter in the murder. [¶] . . . [¶] And the offer of proof is that after the [section] 1538 [suppression hearing] in this case, . . . Mr.

Berger approached me, no less than three times, probably more, whenever he would see me, basically he would say: Have you put together an offer for my client, Mr. Iuli?” Prosecutor Backers explained that she had been busy trying an unrelated capital case when Mr. Berger approached her about a deal and she had not had the time to consider a plea deal for Iuli until after that trial. But after defense counsel’s opening statement, she became concerned the jury had been misled about the pertinent events.

Accordingly, she proposed a stipulation, explaining: “So the impression left with the jury that I got desperate because I thought I couldn’t prove my case against this defendant, and approached them for deals, is absolutely not true. “And I am trying to correct that misimpression by a series of stipulations that I have offered that indicate that I had been working on the case for two years providing discovery, and by the time they pulled [their] time [waiver] on March 3d, I had, during the same week, provided them with 1,174 pages of penalty phase discovery, which obviously indicated that I had already worked up a penalty phase, because I was giving them almost 1,200 pages in penalty phase discovery. “And I would anticipate calling Mr.

Berger, and Mr. Muraoka, and having them testify — well, as far as Mr. Berger is concerned, that Mr. Berger is the one who approached me, not me approaching him. “And the question I would propose to ask Mr. Iuli when he is on the stand is: You and your lawyer had an agreement that you would take a deal from the prosecution that included you testifying against the others, and you had that agreement that you would take that deal for over a year before you actually pled guilty. And that is the substance of the question I would ask Mr. Iuli. “And there is a series of questions I would ask Mr.

Berger, basically that would prove the offer of proof that I just made; that he came to me and was asking for a deal for quite a long period of time before I made him an offer.” (Italics added.) Defense Counsel Ciraolo protested, arguing his opening statement was “a fair inference on what we believe the evidence would show,” and “[w]hat is critical here is that an offer was not made until after we withdrew the time waiver. And the offer that was made by Ms. Backers was rejected. They had — there had to be a further offer. The subsequent offer was accepted. “Whether Ms.

Backers had a case or not, what her rationale was or was not for making an offer, I believe is fair comment in opening statement and outline and final argument. “If she wants to put her credibility on the line, the evaluation of the case, she is doing so here. And I don’t think that is appropriate.” The court found Mr. Ciraolo’s argument was permissible, but that the prosecutor should also be permitted to rebut the argument with evidence.

The court agreed with defense counsel, however, that the prosecutor’s proposed stipulation was “fairly inartful, both the way the stipulation is presented and also the way — the question Ms. Backers wants to pose [to Berger, Iuli’s attorney]. It is probably not the best way to approach it.” The court then deferred judgment on the matter until a later time, saying: “I think there are other ways to put the information in front of the jury without opening an entire Pandora’s box.

And what I foresee is the focus of this case being transferred, either intentionally or unintentionally, from the facts of the ultimate issue to prosecutorial conduct and credibility. And I don’t think that serves the interest of justice here. “So let me see if I can come up with something else . . . and then readdress this [later].” c. The Berger and Muraoka Stipulations The trial court thereafter proposed a stipulation that stated: “The information in this case was filed in the Superior Court of Alameda County on June 19th of 1997.

At that time, California law provided that the defendant had a statutory right to demand a trial on the charges contained in the information within 60 days of June 19th, 1997, or on or before August 18th of 1997. “The defendant entered a general time waiver waiving his right to a trial within 60 days of June 19th, 1997. “The defendant withdrew that general time waiver on March 3d of the year 2000. This required that the trial in this case commence on or before May 2d of the year 2000. “Deputy District Attorney Angela Backers was first assigned this case on or about December 28th of 1997. “Mr.

Michael Ciraolo and Ms. Deborah Levy became attorneys of record for the defendant on or about December 11th of 1998. “There has been ongoing discovery and the providing of information on the guilt and possible penalty phases of this case by Ms. Backers to Mr. Ciraolo and Ms. Levy since December 11th of 1998. “Mr. Michael Berger, who is the attorney sitting over there, has represented Mr. Tony Iuli in this matter from on or about May 27th of 1996. “During the year 1999, Mr. Berger approached Ms. Backers on at least three occasions regarding a possible plea agreement which would involve Mr.

Iuli being allowed to plead to a lesser offense in consideration for Mr. Iuli providing testimony in this trial. “Mr. Iuli entered such a plea agreement on April 26th of the year 2000.” Defendant’s attorney, Ciraolo, expressly agreed to this stipulation, which was read to the jury. Later, the trial court proposed two additional stipulations covering the circumstances of Palega’s plea. The first one provided: “On May 5th of the year 2000, during an interview with Ms. Backers, defendant Tony Iuli wrote a letter to defendant Jay Palega. The letter was reviewed by Ms. Backers and Mr. Iuli’s attorney, Mr.

Michael Berger. Mr. Berger placed a phone call to Mr. Muraoka to inform him about the letter. Mr. Muraoka came to the courtroom to pick up the letter. At that time, Ms. Backers informed Mr. Muraoka that the same plea agreement offered and accepted by Mr. Iuli was now being offered to Mr. Palega. Mr. Palega accepted the offer and entered into the plea agreement by pleading guilty on May 15th of the year 2000.” The second Muraoka stipulation provided: “If called to testify, Mr.

William Muraoka, an assistant public defender in Alameda County, would testify that on or about May 15th of the year 2000 he had a conversation with Ms. Backers regarding the plea agreement entered into by his client. Ms. Backers indicated to Mr.

Muraoka that based on her evaluation of the evidence as the deputy district attorney assigned to this case, that while she believed all four defendants were legally guilty of the murder, her review and evaluation of the evidence led her to believe it was appropriate for her to exercise her discretion as the prosecutor of the case, to enter into the plea agreements which have been stated on the record.” Defendant’s attorney expressly agreed to both Muraoka stipulations, which were read to the jury. d.

Questioning and Closing Argument Iuli and Palega were both questioned about the circumstances of their plea bargains on direct and cross-examination. In her closing argument, the prosecutor addressed the deals she made with them in exchange for their testimony, saying: “[T]here are some major differences between the men in that van. “And the differences are this: the two men in the front seat of that van [i.e., Iuli and Palega] wanted to let [Pamintuan] go. They wanted to let him live. They didn’t believe [defendant] should shoot him.

They even told [him] not to shoot him. . . . “If somebody gives up their stuff, you let them go. But [defendant] broke their rule, too. Instead of letting [Pamintuan] go, like they told him to, like they thought they should, he blew [the victim’s] chest apart. “There is a moral difference, not a legal difference, but a moral difference between the two in the front seat and the two in the backseat. And that is why there were different offers made.

And that is the only reason why.” (Italics added.) Further: “So the offers that were made, which you now have heard so much about, and you heard the actual conditions of the offer read to the witnesses while they were on the stand, is that those two men in the front seat who wanted to let [the victim] go, let him live, got 16 years, eight months. “And clearly, after seeing Tautai testify, I think you can see why there is such a difference between the two in the front seat and the two in the backseat. I am sure you can see that that discretion was exercised with a proper amount of integrity.

Because once you met Tautai, and you saw his lack of moral fiber, I am sure that you could see that there was a big difference between the two in the backseat and the two in the front seat. “What you were told is that the reason those offers were lowered from a life top to a determinate term was because after [defendant] pulled [his] time [waiver] on March 3d, I couldn’t prove my case. That is what you were told. I want you to think about the evidence I have in this case and that you now know is true.” (Italics added.) The prosecutor then listed all the evidence of guilt, aside from Iuli’s and Palega’s testimony.

She then continued: “You know how compelling and how strong the evidence is in this case. So now you know the truth about why those offers were made to Tony and Jay.” Defendant did not object to this argument. e. Defendant Forfeited His Claims Defendant mounts a two-pronged attack on the evidence of Prosecutor Backers’s subjective motivation for offering plea deals to Iuli and Palega. First, he contends the evidence was inadmissible because it was irrelevant and immaterial.

As we have already explained, challenges to the admission of evidence must be preserved for appellate review with a timely and specific objection at trial. (Evid. Code, § 353, subd. (a); People v. Hinton, supra, 37 Cal.4th at p. 894.) Here, defendant not only failed to object but his counsel stipulated to the Berger and Muraoka stipulations. Under the circumstances, he may not now be heard to complain, because “when a party enters into a voluntary stipulation, he generally is precluded from taking an appeal claiming defects in the stipulation.” (People v. Gurule, supra, 28 Cal.4th at p. 623; cf. People v.

Duff (2014) 58 Cal.4th 527, 540 [167 Cal.Rptr.3d 615, 317 P.3d 1148] [“a stipulation to the excusal of jurors forfeits any subsequent objection to their omission from the jury pool”].) Second, defendant contends the prosecutor committed misconduct by improperly vouching for the truthfulness of her witnesses, Tony Iuli and Jay Palega, citing three separate incidents: Her direct examination of Iuli, the admission of the Muraoka stipulation, and her closing argument. None of these claims was properly preserved for our review.

It is well settled that making a timely and specific objection at trial, and requesting the jury be admonished (if jury is not waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for appeal. (People v. Pearson (2013) 56 Cal.4th 393, 426 [154 Cal.Rptr.3d 541, 297 P.3d 793]; People v.

Cole (2004) 33 Cal.4th 1158, 1201 [17 Cal.Rptr.3d 532, 95 P.3d 811].) “The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice.” (People v.

Williams (1997) 16 Cal.4th 153, 254 [66 Cal.Rptr.2d 123, 940 P.2d 710].) Defendant appears to acknowledge that he failed to object but contends any objection would have been futile. “A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if ‘ “an admonition would not have cured the harm caused by the misconduct.” ’ [Citation.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ ” (People v.

Hill (1998) 17 Cal.4th 800, 820 [72 Cal.Rptr.2d 656, 952 P.2d 673].) To the extent the prosecutor’s questioning of Iuli and her closing argument simply relied on information contained in the stipulations, we agree an objection would have been futile, for by counsel agreeing to the stipulations, they became fair game for questioning and argument.

To the extent the prosecutor’s arguments went farther than merely relying on the stipulations, such as when she argued there was a “moral difference” between Iuli and Palega, on the one hand, and defendant and Tautai, on the other hand, or when she opined that she exercised the “proper amount of integrity,” a timely objection would not have been futile, for it would have provided the trial court an opportunity to prevent the prosecutor from injecting her subjective views into the case. Under the circumstances, we find,defendant’s claim of prosecutorial misconduct regarding these latter claims was forfeited. f.

The Merits Were we to overlook defendant’s failure to preserve his misconduct claim and address its merits, we would find the prosecutor did not engage in “deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44 [104 Cal.Rptr.2d 582, 18 P.3d 11].) As a general matter, “[impermissible ‘vouching’ may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.” (People v.

Fierro (1991) 1 Cal.4th 173, 211 [3 Cal.Rptr.2d 426, 821 P.2d 1302].) Similarly, evidence of a prosecutor’s subjective motivations when prosecuting a case is not relevant, for “[i]t is misconduct for prosecutors to bolster their case ‘by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.’ [Citation.] Similarly, it is misconduct ‘to suggest that evidence available to the government, but not before the jury, corroborates the testimony of a witness.’ [Citation.] The vice of such remarks is that they ‘may be understood by jurors to permit them to avoid independently assessing witness credibility and to rely on the government’s view of the evidence.’ [Citation.]” (People v.

Bonilla (2007) 41 Cal.4th 313, 336 [60 Cal.Rptr.3d 209, 160 P.3d 84].) The prosecutor’s questioning of Iuli and Palega did not violate these rules. The credibility of these witnesses was, of course, of vital importance and the prosecutor appropriately touched on the circumstances of their plea bargains during her questioning of them on direct examination. (People v. Bonilla, supra, 41 Cal.4th at p. 337.) We find nothing in the exchanges defendant identifies between the prosecutor and the witnesses to suggest the prosecutor vouched for the truthfulness of either Iuli or Palega.

Although defendant also points to passages in Ciraolo’s cross-examination of Iuli, it is unclear how defense counsel’s questioning is relevant to whether the prosecutor improperly vouched for Iuli’s credibility. On this record, then, we find the prosecutor did not, in her questioning of either Iuli or Palega, improperly vouch for their credibility. We turn finally to whether the prosecutor improperly vouched for Iuli and Palega during her closing argument. The rules are well settled: A criminal prosecutor has much latitude when making a closing argument.

Her argument may be strongly worded and vigorous so long as it fairly comments on the evidence admitted at trial or asks the jury to draw reasonable inferences and deductions from that evidence. (People v. Ward (2005) 36 Cal.4th 186, 215 [30 Cal.Rptr.3d 464, 114 P.3d 717].) “ ‘[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,” her comments cannot be characterized as improper vouching.’ ” (People v.

Bonilla, supra, 41 Cal.4th at p. 337.) Both defendant and the People quote large portions of the prosecutor’s closing argument in which she refers to the information contained in the Berger and Muraoka stipulations. We have examined the prosecutor’s argument and conclude her comments were permissible because her “ ‘assurances regarding the apparent honesty or reliability of prosecution witnesses [were] based on the “facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief (People v.

Ward, supra, 36 Cal.4th at p. 215.) To be sure, at one point the prosecutor refers to her decision to offer plea deals to Iuli and Palega and tells the jury “I am sure you can see that that discretion was exercised with a proper amount of integrity,” but even this argument was based on her express assessment of the evidence showing a significant difference between defendant and Tautai (whom she referred to as the men in the backseat of the van) and Iuli and Palega (who were in the front of the van and urged defendant not to shoot Pamintuan).

After listing the evidence of defendant’s guilt aside from Iuli’s and Palega’s testimony, she finished the thought: “You know how compelling and how strong the evidence is in this case. So now you know the truth about why those offers were made to [Iuli and Palega].” To the extent defendant complains the prosecutor obliquely referred to her personal motivation in offering the deals, no misconduct occurred because the trial court had previously ruled such evidence was admissible.

Defendant urges us to find improper vouching despite the prosecutor’s reliance on the evidence presented to the jury, arguing that even under such circumstances, her argument may be considered impermissible vouching if she placed the prestige of the government behind the testimony of the two witnesses. We find no such improper vouching here. Ms. Backers never suggested she had other evidence, unpresented to the jury, to support Iuli’s and Palega’s credibility (see People v.

Turner (2004) 34 Cal.4th 406, 433 [20 Cal.Rptr.3d 182, 99 P.3d 505] [prosecutor improperly vouched for the credibility of expert witness by referring to the prosecutor’s personal knowledge of file witness and his prior use of the witness]), or that she personally believed them independent of the evidence (see People v. Guzman (1988) 45 Cal.3d 915, 941 [248 Cal.Rptr. 467, 755 P.2d 917], overruled on another point in Price v.

Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [108 Cal.Rptr.2d 409, 25 P.3d 618] [having district attorney testify why he offered witness immunity “may well raise” a meritorious vouching claim]). Instead, her argument referred specifically to evidence and inferences drawn from that evidence. We also reject defendant’s claim that his counsel was ineffective for failing to object to the prosecutor’s closing argument. Not only do we find her argument permissible, we also observe the record suggests Mr. Ciraolo made a deliberate tactical decision to enter into the Berger and Muraoka stipulations.

Once those matters were before the jury, the prosecutor could fairly rely on them in closing argument, for prosecutors are given wide latitude during argument and may urge the jury to draw any reasonable inference from the evidence. (See People v. Hill, supra, 17 Cal.4th at p. 819.) By declining to object, we assume Ciraolo fairly determined that the prosecutor’s argument was permissible and not subject to objection.

Finally, we reject defendant’s federal constitutional claims as both forfeited for lack of an objection, and meritless as a substantive matter. “ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury.’ ” (People v.

Gonzales and Soliz (2011) 52 Cal.4th 254, 305 [128 Cal.Rptr.3d 417, 256 P.3d 543].) Defendant made no objections expressly or even impliedly referring to the federal Constitution and thus forfeited the issue. Were we to address these claims despite their forfeiture, we would find that (1) because there was no improper vouching under state law, defendant’s due process claim is also meritless; (2) because the prosecutor’s closing argument was based on the evidence admitted at trial, there was no denial of defendant’s confrontation or cross-examination rights under the Sixth Amendment (see People v.

Harris (1989) 47 Cal.3d 1047, 1083-1084 [255 Cal.Rptr. 352, 767 P.2d 619]); and (3) because there was no improper vouching under state law, defendant’s trial was not rendered insufficiently reliable under the heightened standards demanded by the Eighth Amendment for capital cases (People v. Cudjo, supra, 6 Cal.4th at p. 623; see Beck v. Alabama (1980) 447 U.S. 625, 638 [65 L.Ed.2d 392, 100 S.Ct. 2382]). 4. Other Alleged Prosecutorial Misconduct a.

Allegedly Impugning Defendant’s Postarrest Silence Although defendant did not testify, he presented an alibi defense through both his wife, Lucy Masefau, who testified defendant was with her on the night of the crimes, and Tautai Seumanu, who testified that he was the primary participant in the crimes and that defendant was not in the stolen van with him when he, along with Iuli and Palega, robbed and killed Pamintuan. During closing argument, the prosecutor referred to defendant’s proffered alibi defense and argued it was not worthy of belief because the circumstances suggested it had been recently manufactured.

Thus, Ms. Backers argued: “Remember the stipulations you got about the fact that when this information was filed against the defendant in June of 1997 that he legally had a right to a trial within 60 days? “In June of 1997, if you are sitting here and you are innocent and you have an airtight alibi, you can have your trial in 60 days. “But he didn’t. He waived time. He waived time.

And that is proven by stipulation in this case. “Real alibi witnesses do not sit on their alibi and keep it secret for four-and-a-half years while their allegedly innocent husbands are rotting in jail.” Defendant did not object to these comments. In summing up, the prosecutor returned to this subject: “Ask yourself if [defendant] really had an airtight alibi.

If he really wasn’t there, then how come his three accomplices mention his name and bring it up and put him there right when they get arrested? “Why would they do that? “Why wouldn’t they say: No, my brother wasn’t with us, he was home with his wife. “Because he was with them, that is why. That is how a real alibi works. They would say: Oh, the fourth guy wasn’t our brother, he was home. “They tell it right then, the police go check it out, the alibi is true, [defendant] doesn’t get charged. That is how alibis work.

They are given up right at the time, not four and a half years later.” Again there was no objection. Defendant contends such argument constituted improper comment on his right to remain silent in violation of his constitutional rights under the United States Constitution. (Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240]; see People v. Thomas (2012) 54 Cal.4th 908, 936 [144 Cal.Rptr.3d 366, 281 P.3d 361].) A question of forfeiture is immediately apparent, for defendant did not object to the prosecutor’s argument on Doyle error grounds. (People v.

Collins (2010) 49 Cal.4th 175, 202 [110 Cal.Rptr.3d 384, 232 P.3d 32] [an objection is required to preserve Doyle error for appellate review].) Defendant acknowledges this omission but contends “the unusual circumstances of this case would render the application of the forfeiture rule itself fundamentally unfair.” We are not convinced.

The prosecutor’s line of argument connecting defendant’s willingness to delay the commencement of his trial to the credibility of his alibi witnesses (who came forward relatively late in the process) was not, as defendant claims, “sudden and unforeseen,” and defendant’s failure to object was not excusable on that ground. Nor are we convinced by defendant’s argument that our adherence to routine state procedural law requiring a specific and timely objection to preserve Doyle error for appeal (Evid. Code, § 353; People v.

Collins, supra, 49 Cal.4th at p. 202) “would itself constitute a violation of the Due Process Clause of the Fourteenth Amendment [by] conferring] on one party the power to manipulate mere procedure for its own undue and unfair advantage.” Defendant could have avoided the alleged due process violation by the simple expedient of making a timely and specific objection, coupled with a request the jury be admonished.

Nor do we accept defendant’s further argument that he may be excused for his failure to object because an objection would have been “useless.” Although the failure to object to prosecutorial misconduct may be excused on the ground of futility (People v. Collins, supra, 49 Cal.4th at pp. 202-203 [discussing the futility exception in the context of Doyle error]), nothing on this record suggests such futility. Were we to overlook this procedural obstacle and find the issue properly before us, we would reject it on the merits. Assuming for purposes of argument the rule in Doyle v.

Ohio, supra, 426 U.S. 610 applies to a prosecutor’s closing argument, we would find no error even had defendant properly preserved the claim for our review. The gist of the prosecutor’s argument was aimed not at defendant’s silence, but that of his primary alibi witness, Lucy Masefau. Thus, when the prosecutor argued that “[r\eal alibi witnesses do not sit on their alibi and keep it secret for four-and-a-half years while their allegedly innocent husbands are rotting in jail” (italics added), she was plainly arguing that Lucy Masefau was not a believable alibi witness.

Accordingly, the prosecutor’s argument was not intended to have the jury draw negative inferences so much from defendant’s silence as from Lucy’s silence. Mere witnesses, of course, have no constitutional right to remain silent. We thus conclude that, even had defendant preserved the issue, his Doyle error claim is meritless. b. Allegedly Impugning Defense Counsel’s Integrity During the presentation of the People’s case-in-chief, a dispute arose during the examination of Dr.

Clifford Tschetter, the autopsy surgeon, who testified he found both shotgun pellets and wadding from the shotgun shell in the victim’s body. During cross-examination, defense counsel had the witness admit his report contained a discrepancy: the written

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