Full opinion text
Opinion WERDEGAR, J. Shawn Hill was convicted in 1988 in Los Angeles County Superior Court of the robbery and first degree murder of Stuart Margetts (Pen. Code, §§211, 187; all further statutory references are to this code unless otherwise stated), the attempted robbery and attempted second degree murder of Ronald Johnson (§§ 664/211, 664/187), and the robbery of Carrie Howard (§ 211). The jury also found true a robbery-murder special-circumstance allegation (former § 190.2, subd. (a)(17)(i), now see § 190.2, subd. (a)(17)(A)), as well as deadly weapon use enhancement allegations for all five substantive crimes (§ 12022, subd. (b)), and great bodily injury enhancement allegations for the four crimes other than the murder (§ 12022.7). The jury set the penalty at death under the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, subd. (b).) The facts of this case portray an individual engaged in the deadly game of selling “bunk,” or bogus rock cocaine, to unsuspecting buyers. When the prospective buyer discovers the scam and balks at completing the sale, he is stabbed in the chest. Although Ronald Johnson was severely injured, he survived this deadly assault. Stuart Margetts did not. Our review of the record, however, reveals that defendant’s trial was rife with serious error. The most disturbing aspect of this case was the outrageous and pervasive misconduct on the part of the state’s representative at trial: the public prosecutor. As we explain, although we might find any individual instance of prosecutorial misconduct or other error harmless standing alone, we cannot ignore the combined prejudicial effect these many missteps had on the overall fairness of the trial. Finding the cumulative prejudice flowing from the combination of prosecutorial misconduct and other errors rendered defendant’s trial fundamentally unfair, we reverse the judgment in all respects. Facts Guilt Phase About 6:00 p.m. on August 25, 1986, Margetts told his girlfriend, Rita Berner, he was going out to buy some tools. Berner saw him take two $100 bills from a nightstand. He left in his blue Chevrolet S-10 truck. Shortly thereafter, Ceora (Mona) Williams, then 16 years old, was walking through the parking lot of the Pierce Apartments in the Pacoima section of Los Angeles, near the intersection of Pierce Street and Van Nuys Boulevard. Williams was on her way to play baseball; she met Reginald Berry on the way. She saw a blue Chevrolet pickup truck drive into the apartment house parking lot and pull into a space. A Black male walked over to the driver’s side of the car and conversed with the driver, a White male. Williams testified the Black man was defendant, that she could see defendant’s face “real well,” and that she recognized him, having seen him in the parking lot off and on over the past few years. Williams testified defendant had what appeared to be rock cocaine in his hand; he placed the other hand on top of the truck’s cab while he spoke to the driver. She overheard the man in the truck ask, “Do you have a 50?” The driver was counting money, holding the bills in front of his chest. Williams saw defendant open a knife and hold it in his left hand on top of the truck cab. Defendant then looked at her and she became frightened, averting her eyes. When she looked back after about 10 seconds, defendant was gone and the driver of the truck began to drive away. The truck did not get very far out of the parking lot, coming to rest just halfway down the block. Two women walked to the truck and placed the driver’s head out of the window to “give him air.” Williams and Berry walked over to the truck and saw blood on the driver’s shirt. The police were called; they determined the driver, Margetts, was dead from a single stab wound in the chest. No one saw anyone take anything from the truck. With the exception of a foreign dollar bill, police found no money in the victim’s wallet, on his person, or in the truck. On the console in the truck, police found two pebbles that resembled rock cocaine. A later chemical analysis disclosed the pebbles were not made of cocaine. Nadine Reese was a resident of the Van Nuys Apartments, located behind the Pierce Apartments; the two buildings are connected by parking lots. Reese, one of defendant’s friends, testified she heard something about a killing in a blue pickup truck, and that defendant told her he was the person who “stabbed the white boy” in the truck. Mona Williams later identified a photograph of defendant as the man who stabbed Margetts. Charles Caudell, a fingerprint expert, testified a palm print found on the roof of Margetts’s truck (just above the driver’s side door) belonged to defendant. Two days later, on August 27, 1986, Ronald Johnson, accompanied by Carrie Howard, drove into the parking lot at the Van Nuys Apartments in Johnson’s pickup truck. Johnson had previously purchased drugs in the parking lot and intended to buy some drugs that day. Three men, including defendant, approached Johnson’s truck and offered to sell him cocaine. When defendant showed Johnson his wares, Johnson could tell the pebbles were not rock cocaine and refused to buy. Defendant then said, “Give me your money or I’ll kill you,” and displayed a large knife with a black handle. As Johnson was reaching under his seat for the money, defendant began jabbing Johnson with the knife. When Johnson handed over the money, defendant stabbed him in the chest. In the meantime, one of the men accompanying defendant moved to the other side of the truck and grabbed Howard’s purse, but she was able to retrieve it. After being stabbed, Johnson drove out of the parking lot, whereupon his lung collapsed and Howard began driving to a hospital. They were stopped by police, who transferred Johnson to the patrol car and transported him to a hospital. Nadine Reese observed the Johnson stabbing and later identified defendant as Johnson’s assailant. Both Johnson and Howard identified photographs of defendant as the man who stabbed Johnson. The next day, August 28, 1986, police encountered defendant walking with another man and two women near the Pierce Apartments. The other man placed a knife with a fixed blade on the fence as police approached. Defendant turned and walked away but was apprehended. Police found a type of folding knife (known as a “buck knife”) in his waistband. Both the fixed-blade knife and defendant’s pants had blood on them. A police serologist testified the blood on the fixed-blade knife was type O; 48 percent of the population has type O blood. Margetts had type O blood. The blood on defendant’s pants was type AB. Both Johnson and defendant have type AB blood. The serologist found no blood on the folding knife. An examination of the enzymes in the blood found on defendant’s pants revealed only 4 out of 100,000 persons could have supplied that blood. Johnson’s blood fell within the small group of persons with such blood; defendant’s did not. The coroner testified that Margetts’s fatal wound was consistent with having been caused by the folding knife. On June 16, 1988, following the close of the day’s court proceedings, Bailiff Edward Pena was escorting defendant back to the lockup when defendant exclaimed, “ ‘[W]hy do all them people be lying like that?’ ” When Pena inquired what he meant, defendant replied, “ T always stab them with my left hand. That’s where I have my power.’ ” This was apparently in response to Johnson’s testimony that day that his assailant held the knife in his right hand. Four days later, Reese (who also was in jail) found herself on a bus with defendant. Defendant called Reese a “snitch” and said he would “send his people after [her].” In his defense, defendant called Reginald Berry, who had been walking with Mona Williams and had observed the aborted drug sale between Margetts and defendant. Berry testified the drug seller was shorter than defendant and that he did not look “anything like” defendant. Defendant also called Delores Smith, who had been visiting a friend in a nearby apartment and observed Margetts’s murder. Contrary to Williams’s testimony that she saw only defendant at the truck, Smith testified she saw several people around the pickup truck, saw money changing hands, and then observed a “bunch of confusion” and arguing. Penalty Phase Cabrina Ross testified for the prosecution at the penalty phase. She stated that a day or so after the Margetts killing, she saw defendant rob a White woman and a Mexican man in separate incidents. In both robberies, defendant accosted the victim in the vicinity of the Pierce Apartments and held a knife to the victim’s neck. Nadine Reese also testified at the penalty phase; she stated defendant told her he stabbed “the white boy in the truck” because he believed Margetts was a police officer. Reese had not testified to this fact at the guilt phase because she had just remembered it. Defendant’s mother, Sharion Cobb-Geiger, and his stepfather, Thomas Geiger, both testified on his behalf at the penalty phase. Cobb-Geiger stated she married Theodore Hill when she was 15 years old, and had 3 children with him. Hill, however, was not defendant’s natural father. Cobb-Geiger separated from Hill when defendant was conceived, although she never married defendant’s father. She later reconciled with Hill and agreed defendant should take Hill’s last name. They separated again when defendant was four or five years old. Hill did not visit defendant very much following the separation. Cobb-Geiger testified defendant was a good child until he contracted meningitis when in kindergarten. His fever reached 106.75 degrees, and he was in the hospital for 13 days. It was three weeks before his fever fell below one hundred degrees. Following his bout with meningitis, defendant’s personality had changed, and he was subject to screaming fits. When defendant was 11 years old, he was placed in juvenile hall for incorrigibility. When he returned home, he broke windows and furniture and did not attend school. When he was 13 years old, he observed Cobb-Geiger’s stepfather shoot and kill her brother. This upset him, as did his aunt’s revelation the next year that Theodore Hill was not his natural father. Cobb-Geiger revealed her parents were “brutal” with her so she decided to be lenient with her children. In retrospect, this turned out to be a mistake, as defendant grew up essentially unsupervised. Cobb-Geiger married Thomas Geiger when defendant was 14 years old. At that time, defendant was a ward of the court and had been placed in a camp. Geiger had little contact with defendant. Discussion Although defendant raises a plethora of asserted legal errors, we discuss only those having some bearing on our conclusion that the cumulative effect of the errors in this case requires reversal. Accordingly, we find: (i) the prosecutor committed constant and egregious misconduct at both the guilt and penalty phases of defendant’s trial; (ii) the trial court abused its discretion by failing to determine for itself whether defendant should be shackled inside the courtroom; (iii) the trial court should have excused Bailiff Pena from further courtroom duties after he testified against defendant; (iv) the trial court erred by failing to instruct the jury to consider the testimony of Bailiff Pena as it would any other witness; and (v) the trial court erred by failing to instruct the jury it must find defendant intended to kill before it could sustain the robbery-murder special-circumstance allegation and further erred by affirmatively instructing the jury it need not find defendant harbored the intent to kill. A. Prosecutorial Misconduct 1. Introduction The People of the State of California were represented at defendant’s trial by Prosecutor Rosalie Morton. Defendant contends she committed numerous acts of prosecutorial misconduct. We agree. “The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”” (People v. Gionis (1995) 9 Cal.4th 1196, 1214 [40 Cal.Rptr.2d 456, 892 P.2d 1199]; People v. Espinoza (1992) 3 Cal.4th 806, 820 [12 Cal.Rptr.2d 682, 838 P.2d 204].) Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ (People v. Espinoza, supra, 3 Cal.4th at p. 820.)” (People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2] (hereafter Samayoa).) Regarding the scope of permissible prosecutorial argument, we recently noted “ ‘ “a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature.” [Citation.] “A prosecutor may ‘vigorously argue his case and is not limited to “Chesterfieldian politeness” ’ [citation], and he may ‘use appropriate epithets . . . .”” (People v. Wharton [(1991)] 53 Cal.3d [522,] 567-568 [280 Cal.Rptr. 631, 809 P.2d 1279].)” (People v. Williams (1997) 16 Cal.4th 153, 221 [66 Cal.Rptr.2d 123, 940 P.2d 710].) Prosecutors, however, are held to an elevated standard of conduct. “It is the duty of every member of the bar to ‘maintain the respect due to the courts’ and to ‘abstain from all offensive personality.’ (Bus. & Prof. Code, § 6068, subds. (b) and (f).) A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. (People v. Kelley (1977) 75 Cal.App.3d 672, 690 [142 Cal.Rptr. 457].) As the United States Supreme Court has explained, the prosecutor represents ‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ (Berger v. United States (1935) 295 U.S. 78, 88 [79 L.Ed. 1314, 1321, 55 S.Ct. 629].) Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. (See People v. Bain (1971) 5 Cal.3d 839, 849 [97 Cal.Rptr. 684, 489 P.2d 564]; People v. Kelley, supra, 75 Cal.3d 672, 680-689.)” (People v. Espinoza (1992) 3 Cal.4th 806, 819-820 [12 Cal.Rptr.2d 682, 838 P.2d 204]; see also People v. Herring (1993) 20 Cal.App.4th 1066, 1076 [25 Cal.Rptr.2d 213].) 2. The Issue Is Preserved for Appellate Review At the threshold, respondent contends defendant forfeited appellate review of all his claims of prosecutorial misconduct, because as to each claim his defense counsel, Daniel Blum, either failed to interject a timely and specific objection, failed to request an admonition or curative instruction, or both. “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40].)” (Samayoa, supra, 15 Cal.4th at p. 841.) The foregoing, however, is only the general rule. A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. (People v. Arias (1996) 13 Cal.4th 92, 159 [51 Cal.Rptr.2d 770, 913 P.2d 980]; People v. Noguera (1992) 4 Cal.4th 599, 638 [15 Cal.Rptr.2d 400, 842 P.2d 1160].) 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.’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1333 [65 Cal.Rptr.2d 145, 939 P.2d 259], quoting People v. Price (1991) 1 Cal.4th 324, 447 [3 Cal.Rptr.2d 106, 821 P.2d 610] (hereafter Price).) 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. Green (1980) 27 Cal.3d 1, 35, fn. 19 [164 Cal.Rptr. 1, 609 P.2d 468] (hereafter Green); People v. Pitts (1990) 223 Cal.App.3d 606, 692 [273 Cal.Rptr. 757]; People v. Lindsey (1988) 205 Cal.App.3d 112, 116, fn. 1 [252 Cal.Rptr. 96]; see also People v. Noguera, supra, at p. 638 [must request curative admonition “if practicable”].) Although defense counsel Blum objected to some of the instances of prosecutorial misconduct, he did not do so in all cases. Moreover, some of the times Blum objected he either did not adequately state the grounds of his objection or failed to request the jury be admonished. Nevertheless, we note Blum was subjected to a constant barrage of Prosecutor Morton’s unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods. With a few exceptions, all of Morton’s misconduct occurred in front of the jury. Her continual misconduct, coupled with the trial court’s failure to rein in her excesses, created a trial atmosphere so poisonous that Blum was thrust upon the horns of a dilemma. On the one hand, he could continually object to Morton’s misconduct and risk repeatedly provoking the trial court’s wrath, which took the form of comments before the jury suggesting Blum was an obstructionist, delaying the trial with “meritless” objections. These comments from the bench ran an obvious risk of prejudicing the jury towards his client. On the other hand, Blum could decline to object, thereby forcing defendant to suffer the prejudice caused by Morton’s constant misconduct. Under these unusual circumstances, we conclude Blum must be excused from the legal obligation to continually object, state the grounds of his objection, and ask the jury be admonished. On this record, we are convinced any additional attempts on his part to do so would have been futile and counterproductive to his client. (See People v. Arias, supra, 13 Cal.4th at p. 159; People v. Noguera, supra, 4 Cal.4th at p. 638.) Two examples are illustrative. First, the record shows that when Morton questioned certain witnesses, she confused the serological evidence concerning the fixed-blade knife and the folding knife. (See discussion, post.) When Blum objected, the trial court not only erroneously overruled the objection, but chastised defense counsel in front of the jury, commenting that Blum was the one who was confused and not Morton. Another example demonstrating the futility of interposing defense objections to Morton’s constant misconduct occurred when Blum objected to Morton’s mischaracterization of Mona Williams’ s testimony regarding defendant’s height. (See discussion, post.) When Blum objected because Morton misstated the evidence, the trial court overruled the objection and explained to Blum, in front of the jury, “I’m going to suggest to you [that] earlier you had a right to present to the jury your views and proper deductions or inferences which the facts warrant. And I’ve permitted you to do that. I’m going to permit [Prosecutor Morton] to do that. fl[] Though your interpretation may be not necessarily accurate totally, that’s up to the jury to decide what the interpretation is. She has a right to comment on it, all reasonable inferences and deductions, as long as they are proper.” (Italics added.) As these two examples show, defendant’s argument that further objections would have been futile is well taken. Blum could reasonably infer from the general tenor of the trial court’s prior rulings and comments that it disfavored additional interruptions of Morton’s questioning of witnesses and closing argument, and that if he persisted in objecting Blum would risk additional critical comments from the bench that would suggest to the jury the trial court believed Blum was unnecessarily prolonging the proceedings by interposing “meritless” objections. Under these unusual circumstances, we find all of the asserted grounds for misconduct were preserved for appellate review. (People v. Arias, supra, 13 Cal.4th at p. 159; People v. Noguera, supra, 4 Cal.4th at p. 638.) 3. Bad Faith Not Required In addition to claiming defendant forfeited all claims of misconduct, respondent also asserts the claims are meritless because defendant makes no showing the prosecutor acted in bad faith. Before 1979, bad faith was a prerequisite to gain appellate relief for prosecutorial misconduct of this type. (See People v. Rhinehart (1973) 9 Cal.3d 139, 154 [107 Cal.Rptr. 34, 507 P.2d 642]; People v. Romo (1975) 47 Cal.App.3d 976, 987 [121 Cal.Rptr. 684]; People v. Meneley (1972) 29 Cal.App.3d 41, 61 [105 Cal.Rptr. 432]; People v. Calpito (1970) 9 Cal.App.3d 212, 222 [88 Cal.Rptr. 64]; People v. Asta (1967) 251 Cal.App.2d 64, 86-87 [59 Cal.Rptr. 206]; People v. Jones (1962) 205 Cal.App.2d 460, 467 [23 Cal.Rptr. 418]; People v. Gould (1959) 170 Cal.App.2d 489, 492 [338 P.2d 938].) In that year, however, we overruled these prior cases and held a showing of bad faith was no longer required. (People v. Bolton (1979) 23 Cal.3d 208, 213-214 [152 Cal.Rptr. 141, 589 P.2d 396] (hereafter Bolton).) In fashioning this new rule, we explained that “this emphasis on intentionality is misplaced. ‘[I]njury to appellant is nonetheless an injury because it was committed inadvertently rather than intentionally.’ ” (Ibid., quoting Note, The Nature and Consequences of Forensic Misconduct in the Prosecution of a Criminal Case (1954) 54 Colum. L.Rev. 946, 975.) Thus, “to the extent that cases in this jurisdiction imply that misconduct must be intentional before it constitutes reversible error, they are disapproved.” (Bolton, supra, at p. 214, fn. omitted.) Bolton has been the law since 1979 (People v. Berryman (1993) 6 Cal.4th 1048, 1072 [25 Cal.Rptr.2d 867, 864 P.2d 40]; Price, supra, 1 Cal.4th at p. 447; People v. Benson (1990) 52 Cal.3d 754, 793 [276 Cal.Rptr. 827, 802 P.2d 330]; People v. Harris (1989) 47 Cal.3d 1047, 1079 [255 Cal.Rptr. 352, 767 P.2d 619], disapproved on other grounds, People v. Wheeler (1992) 4 Cal.4th 284, 299, fn. 10 [14 Cal.Rptr.2d 418, 841 P.2d 938]; see also People v. Nguyen (1995) 40 Cal.App.4th 28, 35 [46 Cal.Rptr.2d 840]; People v. Pitts, supra, 223 Cal.App.3d at p. 691; see 5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Trial, § 2905, p. 3555 (hereafter Witkin & Epstein); cf. People v. Alvarez (1996) 14 Cal.4th 155, 213 [58 Cal.Rptr.2d 385, 926 P.2d 365] [prosecutor’s good faith not “crucial” to finding misconduct; standard is an objective one]), and we reaffirm it here. Accordingly, we decline respondent’s invitation to reject defendant’s claims of prosecutorial misconduct on this ground, and turn instead to the merits of the claims. 4. Claims of Misconduct at the Guilt Phase a. Misstating the Evidence Defendant first contends Prosecutor Morton committed misconduct on several occasions by misstating or mischaracterizing the evidence. Although prosecutors have wide latitude to draw inferences from the evidence presented at trial, mischaracterizing the evidence is misconduct. (People v. Avena (1996) 13 Cal.4th 394, 420 [53 Cal.Rptr.2d 301, 916 P.2d 1000]; see also People v. Lucas (1995) 12 Cal.4th 415, 472 [48 Cal.Rptr.2d 525, 907 P.2d 373] [failure to object forfeited claim of misconduct for misstating facts].) A prosecutor’s “vigorous” presentation of facts favorable to his or her side “does not excuse either deliberate or mistaken misstatements of fact.” (People v. Purvis (1963) 60 Cal.2d 323, 343 [33 Cal.Rptr. 104, 384 P.2d 424].) Although the line between permissible and impermissible argument may sometimes appear unclear, Morton, as we explain, crossed this line many times. (i) Blood on the Knife Defendant first contends Prosecutor Morton committed misconduct by misleading the jury about the significance of the blood on the fixed-blade knife. The evidence on this point reveals Mona Williams saw defendant “open” a knife before Margetts was stabbed; Johnson, by contrast, stated he (Johnson) was stabbed with a knife with a fixed blade (i.e., not a folding knife). When police located defendant, he was walking with another man and two women. When police approached, the other man placed a fixed-blade knife on the fence; police found a folding knife in defendant’s waistband. Forensic testing revealed the presence of human blood on the fixed-blade knife but none on the folding knife. Defendant also had blood on his pants. The blood on the fixed-blade knife was of an insufficient amount to test any more than that it was type O. Margetts had type O blood, as does 48 percent of the population. Serological testing revealed the blood on defendant’s pants was type AB, a type possessed by only about 4 percent of the population. Both defendant and victim Johnson have type AB blood. Certain enzymatic indicators present in the blood found on defendant’s pants revealed a combination of blood type and enzymes found in only 4 of every 100,000 persons. Johnson’s blood contains such a combination; defendant’s blood does not. In closing argument, the prosecutor characterized the blood on the fixed-blade knife (the type O blood) as “Stuart Margetts’s blood.” Defendant’s objection to this comment was overruled. Morton continued: “And you saw the classification, and you saw down to the last iota, Stuart Margetts’ blood was typed all the way over, ffl] And [the serologist] formed the opinion that on that knife . . . [the] other knife which was identified along with the [folding knife] . . . belonging to that defendant—was the same blood type O. The very same blood type. [H] Classified down, right down to the different classifications as Stuart Margetts. . . .” (Italics added.) At this point defense counsel Blum objected, claiming Morton had confused the serological evidence concerning Margetts’s blood with “the analysis of Mr. Johnson’s blood which was sub typed.” The trial court overruled the objection, commenting: “No. She is not [confused]. Counsel, there may be some confusion but I am not so sure it rests with her.” Morton continued: “No, I am not confused. fl[] You will see that Mr. Margetts had O type blood. And it’s O type on the knife.” Later: “As to . . . Mr. Johnson’s blood, which was AB, same as defendant, which was also classified down, we know for a fact by classification it wasn’t the defendant’s blood on his pants. That matched Mr. Johnson’s blood on his pants. [H] There is no confusion there.” (Italics added.) On this record, we find defense counsel Blum was indeed correct, and Prosecutor Morton and the trial court were incorrect, regarding the accuracy of Morton’s characterization of the evidence. Only the blood on defendant’s pants (the type AB blood) was given the detailed forensic examination for enzyme activity that permitted a more precise inference as to the donor. In Prosecutor Morton’s parlance, only the blood on defendant’s pants was “[classified down, right down to the different classifications,” classified “down to the last iota,” or “typed all the way over.” Regarding the blood on the fixed-blade knife, all that could be said was that it was type O, a type shared by Margetts and 48 percent of the general population. Morton thus mischaracterized the evidence by suggesting to the jury the blood found on the fixed-blade knife was sufficiently broken down into enzymatic subclassifications to permit a confident conclusion that it belonged to Margetts. We know this was the meaning of her comments because, when she switched to discussing the serological evidence for the blood on the pants, she noted that blood “was also classified down” (italics added), thus suggesting blood samples from both the pants and the knife were classified to an equal degree of specificity by the serologist. In thus mischaracterizing the nature of the evidence, Morton committed misconduct. In so doing, she assisted her case by suggesting the serological evidence pointed unerringly to defendant’s guilt of stabbing Margetts, whereas the actual evidence was much less damning. That the blood type of the blood found on the knife was consistent with Margetts’s blood is true, but the type was also consistent with 48 percent of the population. By falsely asserting the serological evidence was more inculpatory that it actually was, Morton was able to blunt the defense argument of misidentification. (ii) Confusing the Jury Regarding the Knives Defendant next points to several instances in which Morton, when questioning witnesses, confused the two knives, calling the fixed-blade knife a buck knife, which is a type of folding knife, as well as referring to the folding knife as a buck knife. Defendant suggests this confusion of the knives was a calculated move to mislead the jury, but even if innocently done it nevertheless had the effect of confusing the jury to the prosecution’s advantage. We find Morton’s misdescription of the knives when questioning witnesses misstated the evidence and constituted misconduct. By creating jury confusion over the two knives, the prosecution gained an unfair advantage in two ways. First, if the jury was led to believe (contrary to fact) the fixed-blade knife was the murder weapon, the type O blood on that knife was further proof of defendant’s guilt, for that blood was consistent with Margetts’s blood. Second, in mixing up the two knives, Morton glossed over an inconsistency in the evidence that was damaging to her case: the type O blood on the fixed-blade knife, which defendant may have used to stab Johnson, was inconsistent with Johnson’s blood type. (iii) Williams’s Testimony Regarding Defendant’s Height Defendant claims Morton mischaracterized the testimony of Mona Williams regarding the perpetrator’s height. We agree. Morton argued: “You were told that Mona Williams said that the defendant was four-four or four-five [jzc: she meant five-four or five-five], or a short person. You will not find in this record or any record where she said that.” (Italics added.) Blum objected, interjecting, “That’s untrue.” When the court overruled his objection, Morton continued: “[Williams] never mentioned [the perpetrator was] five-three, five-four or anything else. All she said, it was in comparison. And when I asked her here in this courtroom how tall she thought the defendant was, she told you what she thought. That was her way of estimating height.” (Italics added.) In fact, Williams had testified she was five feet, three inches tall and the perpetrator was a little taller, “about 5’4”, 5’5”.” Defendant argues this mischaracterization was critical, for defendant’s height was a major weakness in the prosecution’s case: Defendant is five feet, ten inches tall, and the other eyewitness to the Margetts’s killing, Reginald Berry, testified the killer was a short man and did not look like defendant. As is clear, Morton again blatantly and categorically mischaracterized the factual record to gloss over an inconsistency in the evidence unfavorable to the prosecution. Her actions thus constituted prosecutorial misconduct. (iv) Mischaracterizing Johnson’s Scar Defendant contends Morton again mischaracterized the evidence by claiming a large scar on victim Ronald Johnson’s chest was caused by defendant when he. stabbed Johnson. Morton then used the size of the scar to argue defendant must have intended to kill Johnson. During Ronald Johnson’s testimony, he was asked to exhibit to the jury the scar on his chest. The trial court described it for the record: “[the] scar . . . begins at the highest level, mid chest, and runs approximately 10 inches downward below the right nipple of the chest, about an inch below the nipple of the chest.” In closing argument, Morton urged the jury to find defendant acted with the specific intent to kill when he stabbed Johnson, noting: “You saw the scar. Take a look at it, and you will remember how far across the chest it went, [ft] If you stick it in him two times and rip his chest open, you are planning to kill him. [ft] You are not playing a tickling game with him.” (Italics added.) In Blum’s closing argument, he told the jury, “as to [Johnson’s] scar, I suggest that you go through the medical records, [ft] I believe those records will show you that that big scar on Mr. Johnson’s chest is a result of surgery, not the result of a knife.” In rebuttal, Morton" returned to the topic of Johnson’s scar: “By the way, you can look at those hospital reports and you will see [Johnson] was stabbed more than once. And you will also see that his scar was not by reason of a doctor cutting him from side to top. The lawyer that had that malpractice action would be doing a pretty good job. He would make quite a few bucks. That was a terrible scar.” (Italics added.) In fact, the hospital records show the larger of the two stab wounds was only two centimeters long. The other stab wound was merely described as “small.” We may thus surmise the large scar on Johnson’s chest was in fact caused by the emergency surgical intervention required as a result of Johnson’s stabbing. The record shows that when Johnson arrived at the hospital, doctors performed an antrolateral thorocotomy to open his thoracic cavity, permitting resectioning the right middle lobe of his lung, which had been damaged by the knife wound. Doctors also repaired a laceration of Johnson’s right ventricle, an operation requiring sawing through Johnson’s sternum with a gigli saw. Once again, Morton grossly mischaracterized the evidence and thus committed misconduct. Her misconduct in this regard again worked to bolster a critical weakness in her case: To prove defendant guilty of attempting to murder Johnson, it was necessary to prove that when defendant stabbed Johnson, he intended to kill. (People v. Swain (1996) 12 Cal.4th 593, 605 [49 Cal.Rptr.2d 390, 909 P.2d 994].) The single major stab wound—two centimeters long—and the second, more minor wound, under the circumstances of the case, were not necessarily conclusive evidence of intent to kill. The People’s case would certainly have been enhanced if Morton could have proved the large scar on Johnson’s torso was caused by defendant “rip[ping] [Johnson’s] chest open” with a knife. Unfortunately for her, the evidence did not show defendant was responsible for that grievous injury. b. Referring to Facts Not in Evidence Defendant next argues Morton committed misconduct when, in closing argument, she referred to facts not in evidence. We have explained that such practice is “clearly . . . misconduct” (People v. Pinholster (1992) 1 Cal.4th 865, 948 [4 Cal.Rptr.2d 765, 824 P.2d 571]), because such statements “tend[] to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, ‘although worthless as a matter of law, can be “dynamite” to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ [Citations.]” (Bolton, supra, 23 Cal.3d at p. 213; People v. Benson, supra, 52 Cal.3d at p. 794 [“a prosecutor may not go beyond the evidence in his argument to the jury”]; People v. Miranda (1987) 44 Cal.3d 57, 108 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Kirkes (1952) 39 Cal.2d 719, 724 [249 P.2d 1].) “Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.” (5 Witkin & Epstein, supra, Trial, § 2901, p. 3550.) (i) Suggesting No Similar Crimes Had Been Committed Since Defendant Was Arrested Morton stated in closing argument that Carrie Howard (Johnson’s companion when he was stabbed) had been back to the scene of the crime to buy cocaine subsequent to the stabbing and “[sjince this defendant was arrested and locked up it hasn’t happened over there again.” No evidence established a reduction in the violent crime or knife assault rate at that particular Pacoima parking lot. Morton thus committed misconduct by suggesting, with no factual support in the record, that she had information not presented to the jury that pointed to defendant’s guilt. (See People v. Newman (1931) 113 Cal.App. 679, 684 [298 P. 1044] [misconduct to argue, without supporting facts, that the number of arson fires in the county were significantly reduced when the defendant, charged with arson, was placed in custody].) (ii) Stating the People Could Have Brought in an Expert Blum stated in closing argument that the People never established by expert testimony the pebble-like items found in Margetts’s truck were bunk, or fake rock cocaine. From this, Blum urged the jury to find a reasonable doubt that Margetts could tell the difference between real and fake rock cocaine, thereby undermining the prosecution’s theory that Margetts balked at the scam and was stabbed as a result. Morton began her rebuttal argument by opining: “Well, the first thing I’m going to tell you isn’t true is counsel stood before you . . . and told you that to find this defendant guilty I have to prove my case beyond a reasonable doubt; that whatever the bunk was, the narcotic was, or anything else in that truck was, I had to prove it beyond a reasonable doubt what it was; and why didn’t I bring in anybody to testify as to that. HQ Well, first, I’ll tell you that the same way he said people that picked up the blood and analyzed it, and the knife, ... I could have had somebody come in here and analyze that. HQ . . . [But] I don’t have to prove anything about that at all.” Defendant contends Morton committed misconduct by asserting she could have called an expert to establish the nature of the substance found in Margetts’s truck. To the extent Morton, by these comments, implied an expert would have testified favorably for the prosecution had she called one, she committed misconduct, for she called no such witness. (iii) Attempted Impeachment of Delores Smith Delores Smith, called as a defense witness, testified she was in the apartment of her friend, Linda Hill, when she saw the Margetts killing. Contrary to Mona Williams’s version of events, Smith testified several people were around the truck and defendant was not one of them. Smith affirmed she had no motive to lie for defendant and in fact did not even know him. During Morton’s rebuttal argument, she addressed Smith’s testimony: “And there’s this big fuss made about there’s no reason to lie, no bias. Well, infer what you can from the fact that the defendant’s name is Hill and Linda Hill, who was living upstairs in that apartment, according to Delores Smith, is not here in this courtroom. . . .” (Italics added.) Blum’s objection was sustained. It was blatantly improper for Morton to invite the jury to infer Smith would lie because her friend, Linda Hill, was a probable relative of defendant. There was no evidence at all of this purported relation, so Morton’s argument raised the possibility the jury would assume Morton had some undisclosed knowledge of such a relation. Morton thus committed misconduct. Although Blum’s objection to this outrageous fabrication for the jury was sustained, Morton’s misconduct in this instance merely added to the growing mountain of deceit and unethical behavior in this case. c. Misstatements of Law Defendant next cites four instances in which he claims Prosecutor Morton misstated the law before the jury. “[I]t is improper for the prosecutor to misstate the law generally (People v. Bell (1989) 49 Cal.3d 502, 538 [262 Cal.Rptr. 1, 778 P.2d 129]), and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 [275 Cal.Rptr. 729, 800 P.2d 1159].)” (People v. Marshall (1996) 13 Cal.4th 799, 831 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) (i) Consideration of Circumstantial Evidence Blum argued that if the circumstantial evidence concerning the sale of fake cocaine to Margetts was reasonably susceptible to an interpretation other than robbery, then defendant should be convicted of some lesser crime, such as theft. Morton countered: “also, under the theory given to you by counsel, if a robber came up to you, took a knife, put it up to you, held out his hand, not saying a word, not doing anything, he never could be convicted of robbery when he got your money nor murder when he put that knife into you and ripped it because if there’s another meaning to that evidence—which, of course, is circumstantial evidence, and that’s all there ever is when it comes to intent—if there’s another meaning, you have to walk that murderer, that robber out of the courtroom.” (Italics added.) Blum’s objection was overruled. Defendant is correct that Morton misstated the law concerning the import of circumstantial evidence. (See People v. Yrigoyen (1955) 45 Cal.2d 46, 49 [286 P.2d 1] [trial court has sua sponte duty to instruct jury that circumstantial evidence leading to conviction must be consistent with guilt and inconsistent with other rational explanations]; 5 Witkin & Epstein, supra, Trial, § 2947, p. 3620; CALJIC No. 2.01 (6th ed. 1996 bound vol.).) Further, if defendant obtained Margetts’ property without force or fear (thus committing only theft) and then stabbed the victim for some reason unrelated to the theft, Blum would be correct the proper verdict should not reflect reliance on a felony-murder theory and the robbery-murder special circumstance should be found untrue. Morton’s assertion, that defendant must be acquitted of all charges should the jury agree there was insufficient intent for the charged felony, was legally incorrect, as even Blum conceded the perpetrator would be guilty of second degree murder. Morton thus misstated the law and committed misconduct. (ii) Force or Fear Element for Robbery When addressing the perpetrator’s hairstyle in closing argument, Prosecutor Morton opined that “[w]hen one sits around in parking lots in order to rob people and pretendas] to sell them something in order to get money, which is robbery, when one does that, they have plenty of time to sit around and change hair styles.” (Italics added.) Blum objected: “Objection to selling something to get money is a robbery. That’s an incorrect statement of the law.” The trial court overruled the objection. Defendant now claims that, by leaving out the force or fear element for robbery, Morton improperly undermined his main defense that because the force applied to the victim assertedly was not shown to be connected to the theft, there could be no robbery and thus no felony murder. We conclude Morton indeed misstated the law, for pretending to sell someone something in order to get money is not a robbery, there being no showing of force or fear. Although Morton’s mischaracterization of the law was brief and tangential to the point of the argument, it subtly undermined defendant’s primary defense at the guilt phase, and thus contributed to the overall unfairness of the trial. (iii) Shifting to Defendant the Burden of Showing a Reasonable Doubt In her rebuttal argument, Morton addressed the concept of reasonable doubt, stating: “it must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt.” Blum objected, noting the statement was incorrect, and that Morton’s argument was “putting the burden on me.” The trial court overruled the objection, noting: “No, that’s not. That’s your interpretation of it.” Morton then continued: “There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.” (Italics added.) Morton’s comments are somewhat ambiguous. Morton, however, committed misconduct insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. (People v. Marshall, supra, 13 Cal.4th at p. 831; People v. Gonzalez (1990) 51 Cal.3d 1179, 1215 [275 Cal.Rptr. 729, 800 P.2d 1159].) Further, to the extent Morton was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence. (Cf. CALJIC No. 2.61 (6th ed. 1996 bound vol.) [“the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge”].) On the other hand, Morton may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind. Although the question arguably is close, we conclude it is reasonably likely Morton’s comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude Morton committed misconduct by misstating the law. d. Derisive Comments and Actions Towards Defense Counsel Defendant next claims Prosecutor Morton committed misconduct throughout the trial by engaging in derisive action or making derogatory comments directed at Defense Counsel Blum. A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. (People v. Wash (1993) 6 Cal.4th 215, 265 [24 Cal.Rptr.2d 421, 861 P.2d 1107]; People v. Thompson (1988) 45 Cal.3d 86, 112 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Perry (1972) 7 Cal.3d 756, 789-790 [103 Cal.Rptr. 161, 499 P.2d 129], disapproved on other grounds, Green, supra, 27 Cal.3d at pp. 28-34; People v. Bain, supra, 5 Cal.3d at pp. 847-848.) “An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.” (5 Witkin & Epstein, supra, Trial, § 2914, p. 3570.) The American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function (Approved Draft 1971) (hereafter ABA Standards), sets forth the standard of courtroom behavior required for a prosecutor: “5.2 Courtroom decorum, [ft (a) The prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors and others in the courtroom, [ft (b) When court is in session the prosecutor should address the court, not opposing counsel, on all matters relating to the case, [ft (c) It is unprofessional conduct for a prosecutor to engage in behavior or tactics purposefully calculated to irritate or annoy the court or opposing counsel, [ft (d) A prosecutor should comply promptly with all orders and directives of the court, but he has a duty to have the record reflect adverse rulings or judicial conduct which he considers prejudicial. He has a right to make respectful requests for reconsideration of adverse rulings.” Commentary to this section further states: “The gravity of the human interests at stake in a criminal trial demands that the proceeding be conducted in an orderly and dignified manner. . . . [^] Rudeness and intemperance have no place in any court, especially in the relations between its professional members, the judge and lawyers.” (ABA Standards, supra, com. to std. 5.2, pp. 113-114; see generally, People v. Kelley (1977) 75 Cal.App.3d 672, 688 [142 Cal.Rptr. 457] [quoting ABA standards].) The record in this case reveals a rancorous trial, with episodes in which one side (most often the prosecutor) constantly interrupted the other side during the examination of witnesses or closing argument by objections that were marginal at best. The trial was also marked by an apparent personality conflict between Prosecutor Morton and Defense Counsel Blum, with the trial court several times asking both sides to tone down the bickering and focus on the trial at hand. Although some exchanges identified by defendant are too trivial to mention, the flavor of the trial may be gleaned from the fact that when Blum asked Morton to stipulate that the length of the jury box was 20 feet, she retorted, “I certainly will not” and announced in front of the jury that Blum was “unprofessional” and “contemptuous” for even asking her to stipulate. Another unfortunate episode involved the questioning of Charles Caudell, a fingerprint expert. During cross-examination, Blum asked Caudell whether it was possible to transfer fingerprints from one place to another, whether it had been conclusively proven that no two persons could have the same fingerprints, and whether Caudell had ever made a mistake identifying prints. Morton apparently took extreme umbrage at such questions and insisted that defendant’s fingerprints be re-rolled right then, while the jury was watching. Morton insisted: “I want the jury to see it. . . . and I want counsel to put his initials on that roll, so nobody can say they substituted it.” When Caudell volunteered that he once made a mistake in training, Morton was unappeased: “No. This is what I want. And I want counsel to sign it.” Blum asked the trial court: “Can we have a conference if the district attorney is going to say what she wants?” Morton exclaimed flatly: “I am entitled.” This entire exchange occurred in front of the jury. The matter was eventually defused and resolved in chambers, but not before Morton accused Blum of having “unabashedly . . . defamed” witness Caudell. Other disturbing incidents include Morton’s audibly laughing in the middle of Blum’s examination of both victim Ronald Johnson and witness Robbie Ventura, and getting out of her chair during Blum’s examination of witnesses, standing in his line of sight, staring at him and making faces at him. Morton’s tactics were petty and childish, heightening the acrimonious atmosphere in the courtroom and threatening the ability of defendant to receive a fair trial. It takes no citation to authority for us to conclude such juvenile courtroom behavior by a public prosecutor demeans the office, distracts the jury, prejudices the defense, and demands censure. e. Intimidating Witnesses Defendant next contends Morton committed misconduct by intimidating two defense witnesses. The first instance, a minor incident concerning whether witness Delores Smith should remain on call and give Morton her telephone number, was trivial and did not amount to misconduct. The second incident, threatening Reginald Berry with a perjury prosecution, is much more serious. Berry, who ultimately testified for defendant and claimed Margetts’s killer did not look like defendant, suffered from sickle cell anemia and was ill at the time of trial. Before he testified, and outside the jury’s presence, Blum raised with the trial court the issue of prosecutorial intimidation, explaining that Berry was afraid to testify and had been told by Morton that if his testimony did not conform to an earlier taped interview, she would file perjury charges against him. Blum averred that Berry was awake most of the night, worried that he might have to go to prison if he testified for defendant. Morton explained that Berry’s mother told her that “her boy had sickle cell anemia and he could die. And he is very slow. [^] After that I asked to have him come into court. Because I was going to put him on here as a witness. [H] She advised me three or four days ago, oh, she was also screaming and hollering in the office, saying he wouldn’t testify.” After Berry was taken into custody for failure to appear for a jaywalking ticket, he was released, and his mother came and again spoke to Morton. As Morton related the events: “I said, ‘Listen, Mrs. Berry, I am totally fed up with how slow he is and how retarded he is, and I am not concerned about that. ffl] He told officers one thing. Then he said that he saw nothing. That the man was about 5’8” or 5’9”, and he didn’t know him. He went running home to you.’ flQ And she said, ‘Yes, that’s what he told me.’ pfl] Now the last time I talked to Reginald he tells me it was some little short guy that is not the defendant. HQ I don’t care how slow he is. I do not care how retarded he is. [f] ... And I told her, I said, ‘You know, he is 23 years old. I don’t care anymore if he is retarded. I don’t care if he is slow. This is not going to excuse him the rest of his life. [1] If he lies on that stand or if he has given the police false information, I will not hesitate to file a felony charge on him, and I don’t care that he is slow, and I will do whatever one does. ’ ” (Italics added.) Blum added: “Your honor, I would, for the record, state that I believe calling a witness or his mother and stating if they don’t state what’s on the tape they are going to be charged with perjury, that’s prosecutorial misconduct.” The trial court impliedly rejected the objection. “Governmental interference violative of a defendant’s compulsory-process right includes, of course, the intimidation of defense witnesses by the prosecution. [Citations.] ft[] The forms that such prosecutorial misconduct may take are many and varied. They include, for example, statements to defense witnesses to the effect that they would be prosecuted for any crimes they reveal or commit in the course of their testimony. [Citations.]” (In re Martin (1987) 44 Cal.3d 1, 30 [241 Cal.Rptr. 263, 744 P.2d 374].) Threatening a defense witness with a perjury prosecution also constitutes prosecutorial misconduct that violates a defendant’s constitutional rights. (People v. Bryant (1984) 157 Cal.App.3d 582 [203 Cal.Rptr. 733].) Because Berry eventually testified for defendant, no prejudice flowed from this individual act of misconduct. (In re Martin, supra, 44 Cal.3d at p. 31.) Nevertheless, we cannot emphasize strongly enough that, although Morton could seek to impeach Berry at trial if he testified inconsistently with his pretrial statement, it was improper to have threatened him in advance of trial with a perjury prosecution. Had Berry succumbed to Morton’s threat and refused to testify, Morton’s blatantly unethical behavior would have threatened to undermine the entire adversarial process, as Berry, along with Delores Smith, was a key defense witness. Indeed, although Berry found the courage to testify for defendant, risking a threatened perjury prosecution, it is possible the added stress engendered by Morton’s threat of prosecution affected Berry’s emotional state and his demeanor on the stand, evidencing a hesitancy that Morton exploited in closing argument. This, then, comprises just one more example of Morton’s misconduct during defendant’s trial. As is clear, Morton several times committed prosecutorial misconduct during the guilt phase of the trial. Although we do not wish to minimize any of Morton’s actions at the guilt phase, we note the most egregious were: (i) her patent misstatements of the facts in closing argument regarding the serological evidence, Williams’s testimony ,regarding the perpetrator’s height, and the cause of Johnson’s chest scar; (ii) her improper references to alleged facts outside the record in asserting the absence of similar crimes following defendant’s arrest, arid in insinuating familial ties between defendant and Linda Hill; (iii) her misstatements of the law; and (iv) her threat to charge a defense witness with perjury should he testify for the defense. Unfortunately, Morton’s.misconduct was not limited to the guilt phase. 5. Claims of Misconduct at the Penalty Phase Defendant next cites numerous instances of alleged prosecutorial misconduct at the penalty phase. Although some of the claims are meritless and do not require discussion, others, as we explain, are not so benign. As in the guilt phase, we conclude that given the pervasive nature of Morton’s misconduct, any attempt by Blum to object to Morton’s misconduct would have been futile. Accordingly, we find the claims of penalty phase misconduct are properly before this court. a. Reliance on Biblical Doctrine Defendant argues Morton committed prejudicial misconduct by twice referring to the Bible in closing argument. Apparently anticipating a defense plea for mercy, the prosecutor tried to explain why the biblical maxim “Vengeance is mine sayeth the Lord” should not dissuade the jury from imposing the death penalty, for the Bible also says “an eye for an eye, a tooth for a tooth.” By relying on the Bible in this manner, Morton committed misconduct. As we have explained repeatedly, an appeal to religious authority in support of the death penalty is improper because it tends to diminish the jury’s personal sense of responsibility for the verdict. (People v. Wash, supra, 6 Cal.4th at p. 261; People v. Sandoval, supra, 4 Cal.4th at pp. 191-194; People v. Wrest (1992) 3 Cal.4th 1088, 1105-1107 [13 Cal.Rptr.2d 511, 839 P.2d 1020].) Such argument also carries the potential the jury will believe a higher law should be applied and ignore the trial court’s instructions. (People v. Wrest, supra, at p. 1107.) Significantly, Morton was not responding to a defense argument invoking religious authority. (People v. Sandoval, supra, at pp. 193-194.) b. Referring to Matters Outside the Record; Misstating the Facts Defendant contends that at the penalty phase Morton continued her practice, begun during the guilt phase of the trial, of both asserting facts before the jury that were not in the record and mischaracterizing facts that did appear in the record. (i) Knives Called "Uzis” Morton asked Cabrina Ross whether defendant called his knives his “Uzis,” an apparent reference to the name of a semiautomatic rifle sometimes used in violent street crimes. Ross replied she did not remember or did not know. In closing argument, however, Morton averred: “[Defendant] likes the feel of a knife. He likes to use his knife. [50 You heard what he called them. What was it she said? ‘Oh, I forgot the name.’ [50 I said, ‘Did you tell the police officer what he called the knives?’ [50 And she said, ‘I told them that.’ [50 And I said, ‘Is that Uzi?’ [50 And she said, ‘I forgot the name.’ [f] And she told you that he named his knives. He called them that. He likes that.” (Italics added.) Defendant correctly contends Morton committed misconduct by stating as a fact something Ross did not say. If Morton had evidence defendant called his knives by a particular name, she should have presented evidence in that regard. (ii) Misrepresenting Defendant’s Prior Record In closing argument, Morton opined: “And everything [defendant] ever did one way or another, he got away with. [50 He has killed. He has stabbed. He has robbed. He has gone to prison for it. He has not been rehabilitated under any guise or thought.” (Italics added.) Contrary to Morton’s insinuation, defendant’s prior convictions did not involve homicide, stabbings of any kind, or robbery. His prior convictions were for assault by means likely to cause great bodily harm (§ 245, subd. (a)), and for grand theft from the person (for