P. v. Smith

P. v. Smith

Filed 9/29/08 P. v. Smith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. EDWARD LEE SMITH, Defendant and Appellant.

A115149 (Alameda County Super. Ct. No. C149528A)

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

I. Facts

A. Homicide and Investigation

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

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

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

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

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

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

In February 2004, Juan Rodriguez was arrested. He was going through heroin withdrawal at the time that he gave a tape-recorded statement to Oakland police. Rodriguez lived in the neighborhood where Dotson was killed. He told police that he saw Dotsons body lying in front of the apartments on the day of the shooting. He had seen Smith and Antone Bostic^[3]ride by in a car that day. A few months before the shooting, Rodriguez had witnessed Dotson and Smith arguingSmith pushed Dotson, called him a rat bastard and even pulled a gun on him. Rodriguez told police that Smith was angry because Dotsons girlfriend had planted drugs in someones car.

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

Rodriguez told the police that he had also spoken with Bostic about the shooting after it had occurred. Bostic told Rodriguez that he had given Smith a ride that morning. He thought that Smith intended to killnot Dotsonbut Roddy-Roda man who was not a member of the Kumi 415 gang. According to Rodriguez, Bostic felt crossed-up by Smith because he shot Dotsonwho was a member of that ganginstead. Bostic was concerned that members of the Kumi 415 gangwith whom Rodriguez believed that Bostic^[4]was affiliatedwould think he was involved with Dotsons death. Bostic also told Rodriguez that Smith had given him the gun to put up, but that he sold it instead. In a photographic lineup, Rodriguez identified Bostic as the driver of the car that he saw on the day of the shooting.

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

B. Arrest and Pretrial Matters

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

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

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

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

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

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

C. Trial

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Smith moved the trial court to strike the bail enhancement^[12]and the remaining prior conviction. (See  1385.) The motion was denied. Smith was sentenced to a total term of 60 years to life in state prisonan indeterminate term of 15 years to life for second degree murder, doubled because of his prior conviction; a consecutive term of 25 years to life for using a firearm to cause great bodily injury during the murder, and a consecutive five-year term for the prior conviction. A two-year term for being an ex-felon in possession of a firearm was ordered to run concurrently with the murder sentence. (See  18, 189, 190, subd. (a), 667, subds. (a)(1), (e)(1), 1170.1, subd. (a), 12021, subd. (a)(1), 12022.53, subds. (a)(1), (d).)

II. Prosecutorial Misconduct

A. Legal Standard

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

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

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

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

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

B. Examination of Witnesses

1. Doyle Error

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

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

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

2. Contract on Hamptons Life

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

When Hampton testified before the jury and denied making his March 2004 statement, the prosecutor asked if he and Rodriguez had spoken about their names appearing on a list threatening the lives of all the witnesses in this case. Hampton denied speaking with Rodriguez about this. When asked if he was aware of such a list, defense counsel objected that his response would constitute hearsay. The trial court sustained that objection, but allowed the jury to consider the evidence for the limited purpose of whether threats might have been made that affected Hamptons state of mind. It specifically precluded the jury from considering the evidence to show that Smith was responsible for those threats, telling the jurors that [t]here is no evidence of that. Hampton then denied being too frightened to testify, stating that he knew nothing about any hit list.

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

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

3. Possession of Firearm

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

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

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

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

4. Vouching for Armstrong

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

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

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

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

C. Argument

1. Doyle Error

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

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

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

2. Griffin Error

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

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

3. Weakened Burden of Proof

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

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

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

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

4. Accusation of Lying

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

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

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

5. Ultimatum to Jurors

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

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

6. Impermissible Burden on Jurors

Next, Smith argues that the prosecutor placed an impermissible burden on the jurors by asking them in the event of an acquittal to explain to him why the prosecution witnesses would lie. At trial, the prosecutor told the jury that if they did not believe that the case was proven beyond