Full opinion text
Opinion MORENO, J. An Alameda County jury convicted Michael James Huggins of one count each of murder (Pen. Code, § 187), burglary (§ 459), and robbery (§211). The jury found true the special circumstance allegations that defendant committed the murder in the course of, or immediate flight from, burglary, robbery, and rape or attempted rape (§ 190.2, former subd. (a)(17)(i), (iii), and (vii), now subd. (a)(17)(A), (C), and (G)). The jury also found true allegations that defendant personally used a firearm (§ 12022.5) and inflicted great bodily injury on the victim (§ 12022.7). The court, sitting without a jury, found true allegations that defendant previously had been convicted of two serious felonies within the meaning of section 667, along with a third prior felony conviction. The jury was unable to reach a verdict on the penalty and the court declared a mistrial. A new jury was impaneled, and it returned a verdict of death. The trial court entered judgment accordingly. This appeal is automatic. (§ 1239, subd. (b).) Except for a sentence enhancement for prior convictions under section 667, subdivision (a), which must be set aside (see post, at p. 255), the judgment is affirmed. COMPETENCY TRIAL BEFORE GUILT PHASE Defendant claims that instructional error at a competency trial before the guilt phase violated his due process rights under the Fifth and Fourteenth Amendments to the federal Constitution, as codified in section 1367. Factual Background In 1986, while the present criminal charges were pending, defense counsel represented to the court that defendant was either unwilling or, because of mental problems, unable to communicate with him for extended periods. Counsel requested a competency evaluation in Alameda County Municipal Court “to see if that’s a matter of willfulness on his part or an inability on his part.” The municipal court declared a doubt as to defendant’s mental competency, and the Alameda County Superior Court ordered a trial to determine defendant’s mental competency. At the competency trial, which was held before a jury in 1987, expert and lay witnesses presented conflicting testimony about defendant’s mental state. Defendant’s witnesses testified that he lacked the capacity to understand the nature of the proceedings against him, to consult with counsel, or to assist in preparing his defense. James O. Palmer, Ph.D., a licensed clinical psychologist, testified that he administered psychological tests to defendant, but defendant acted so bizarrely that Dr. Palmer “thought it was possible that he was just putting me on.” He suspected defendant was malingering at times. But at times defendant would neglect to malinger and Dr. Palmer was able to observe him. When Dr. Palmer administered a Rorschach test, defendant appeared “not [to be] malingering,” but instead to be “confused.” Dr. Palmer opined that defendant may have given absurd answers to test questions because he admittedly had used phencyclidine (PCP) in jail. Tests that Dr. Palmer administered on a later occasion revealed brain damage. Dr. Palmer concluded that defendant was not competent to stand trial. John B. Peschau, Jr., M.D., a psychiatrist, testified for defendant that defendant suffered from paranoid schizophrenia. Dr. Peschau said that during the examination defendant tried to malinger, but that his malingering was an overlay that did not detract from Dr. Peschau’s observations of his genuine mental illness. Dr. Peschau agreed that if defendant’s behavior were markedly different in jail than when being examined for signs of mental illness, it would suggest malingering. At one point, defendant referred to a nonexistent rug on the floor; Dr. Peschau did not believe that this constituted an attempt to malinger, but could not explain defendant’s comment. Dr. Peschau believed that a criminal defendant has nothing to gain by being found incompetent to stand trial. In any event, Dr. Peschau did not believe that defendant was sophisticated enough to realize he might benefit from malingering. The People’s expert witnesses disagreed with the conclusions of the defense witnesses. Anthony Bitting, Ph.D., a licensed clinical psychologist, concluded that defendant was malingering. He described defendant as feigning a catatonic manner toward him in a jailhouse interview. True catatonia would manifest itself differently. Later, when defendant thought he was out of Dr. Bitting’s sight, he interacted with other inmates normally; when he saw Dr. Bitting watching him, he reverted to his feigned catatonia. Dr. Bitting stated to defendant that he knew defendant was faking symptoms of mental illness, and told the jury that defendant was not mentally ill. He explained to the jury that even “people . . . whose thoughts are very scrambled .... know you’re there,” and that defendant was playacting. Lay witnesses testified that defendant’s behavior in jail was unremarkable. Defendant told one sheriff’s deputy that he was glad to be back from the nearby Highland Hospital so he could resume, in the deputy’s words, “talking to normal people or something [of] that nature.” The deputy also testified that defendant behaved normally during hours reserved for inmates to socialize outside their cells. But he also testified that defendant was kept on a 15-minute suicide watch, a status held by about 1 percent of the inmates at the jail. There was additional evidence that defendant feigned symptoms of mental illness or low intelligence to try to avoid standing trial. A different sheriff’s deputy testified that defendant had filled out a number of jail commissary order forms accurately and legibly. The forms required defendant to write his name, which he did. Earlier, Dr. Palmer had testified that defendant claimed to be illiterate, and that when Dr. Palmer asked him to sign his name, he printed out the letters “t-e-m-o-d.” A third sheriff’s deputy confirmed that defendant interacted normally with other jail inmates. Maurice Beaulieu, M.D., a psychiatrist and the chief of the psychiatric custody facility at Highland Hospital, testified for the prosecution. Defendant had been sent there for evaluation because he had created a noose in jail and was considered a suicide risk. Defendant claimed to be hearing voices and proclaimed himself “King of the world.” To determine if he was inventing symptoms, Dr. Beaulieu placed him on Haldol, “a rather potent antipsychotic medication” that should alleviate genuine hallucinations. Haldol had no effect, and Dr. Beaulieu observed defendant interacting normally with the nursing staff but “selectively speaking about voices when speaking with Dr. [Arend] Boer or myself.” Dr. Beaulieu concluded that defendant was malingering. He ordered defendant placed on a suicide watch on his return to jail because he was “very invested in looking as sick as he could, and I felt that... he might make some kind of suicide gesture where he could make a mistake and actually harm himself.” Arend Boer, Ph.D., a licensed clinical psychologist on the Highland Hospital staff, also testified for the prosecution. He quickly concluded that defendant was malingering. Defendant “did all kinds of little things that mentally ill people do not do.” And defendant “is very street-wise and very prison-wise.” Defendant exaggerated abnormal behavior when taking the Minnesota Multiphasic Personality Inventory (MMPI) test. Dr. Boer concluded that defendant “is competent and he is willfully, volitionally thwarting the [penal] process.” Dr. Boer testified on cross-examination that defendant might have a degree of mental illness, but that it was secondary to his feigning symptoms to avoid prosecution. As stated, a jury found defendant competent to stand trial. Discussion Defendant asserts that the trial court’s oral instruction to the jury at the competency hearing denied him due process of law and did not conform to subdivision (a) of section 1367, which, at the time of trial, provided: “A person cannot be tried or adjudged to punishment while such person is mentally incompetent. A defendant is mentally incompetent for purposes of this chapter if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (As amended by Stats. 1980, ch. 547, § 7, pp. 1509-1510.) The standard jury instruction based on section 1367 was CALJIC No. 4.10, which, at the time of trial, stated: “Although on some subjects his mind may be deranged or unsound, a person charged with a criminal offense is deemed mentally competent to be tried for the crime charged against him: “1. If he is capable of understanding the nature and purpose of the proceedings against him; and “2. If he comprehends his own status and condition in reference to such proceedings; and “3. If he is able [to assist his attorney in conducting his defense] [to conduct his own defense] in a rational manner. “The defendant is presumed to be mentally competent and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent as a result of mental disorder [or developmental disability].” (CALJIC No. 4.10 (1984 rev.).) The trial court instructed the jury in language that, according to the reporter’s transcript, differed slightly from the standard jury instruction. The reporter’s transcript reflects that the court instructed the jury that “[although on some subject his mind may be deranged or unsound, a person charged with a criminal offense is deemed mentally competent to be charged with the crime against him, if he is capable of understanding the nature and purpose of the proceedings against him; second, if he comprehends his own status and condition in reference to such proceedings, [f] If he is able to assist his attorney in conducting his defense in a rational manner, the defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent, as a result of mental defect, or disorder.” The most significant differences between the court’s instruction as reflected in the reporter’s transcript and the standard instruction are that the word “and” does not appear between the three clauses that are identified by number in the standard instruction and that the period at the end of the third such clause is missing so that this clause becomes part of the next sentence. Defendant relies upon these differences to argue that the instruction was defective because “[i]nstead of instructing the jury in accord with section 1367 and CALJIC No. 4.10 to deem [him] competent to stand trial only if he is capable of understanding the nature of the criminal proceedings and assisting counsel in the conduct of a defense in a rational manner, the trial court permitted the jury to find [him] competent if it found either of these facts true . . . .” Of course, when the court orally instructs the jury, the court reporter cannot always capture and report the court’s intended punctuation. Speakers seldom indicate punctuation as they speak, leaving the court reporter with the always difficult, and sometimes impossible, task of supplying punctuation that reflects the speaker’s cadence and inflection. Although we rely upon the court reporter to accurately record the words spoken in court, we are not bound by the court reporter’s interpretation of the speaker’s intended meaning as shown by the punctuation inserted by the reporter. In the present case, the trial court read the words of the standard instruction nearly verbatim. But the punctuation supplied by the court reporter suggests that the court misread the standard instruction by disregarding the period at the end of the third numbered clause and reading that clause as if it were an introductory clause in the next sentence, which would have altered the instruction’s meaning. We are not convinced, however, that the court misread the standard instruction. As noted above, we are not bound by the punctuation supplied by the court reporter. Because the court clearly was reading a standard instruction, it is far more likely that the punctuation supplied by the court reporter failed to accurately reflect the meaning conveyed by the court’s oral instructions than that the court misread the standard instruction. We can conclude with confidence, therefore, that the court read the standard instruction as it was written and did not merge the final two sentences of the standard instruction as reflected in the reporter’s transcript. Our conclusion is supported by the fact that the final, merged sentence of the court’s oral instruction as reflected in the transcript does not make sense. According to the reporter’s transcript, the court instructed the jury: “If he is able to assist his attorney in conducting his defense in a rational manner, the defendant is presumed to be mentally competent, and he has the burden of proving by a preponderance of the evidence that he is mentally incompetent . . . .” It would strain credulity to imagine that the court instructed the jury that defendant is presumed to be competent only if he is able to assist his attorney in conducting his defense. As the record before us demonstrates, the court was well aware that a defendant always is presumed to be competent, not just if he or she is able to assist his or her counsel. Also, whether a defendant is able to assist his or her attorney in conducting the defense is part of the test for determining whether he or she is competent and does not affect the fact that the defendant is presumed to be competent. To give credence to the erroneous punctuation in the reporter’s transcript would produce an anomalous result. It would be illogical to find someone competent who either was incapable of understanding the nature and purpose of the proceeding or unable to assist his or her attorney in a rational manner. Having concluded that, despite the punctuation supplied by the court reporter, the trial court did not misread CALJIC No. 4.10 by omitting the period at the end of the third numbered clause, it remains that the reporter’s transcript reflects that the court omitted the word “and” from between the three numbered clauses. This minor deviation from the text of the standard instruction, however, did not materially alter the instruction’s meaning. Even with the word “and” omitted, the instruction the court read adequately conveyed that in order to be deemed mentally competent, defendant must be capable of understanding the nature and purpose of the proceedings against him, comprehend his own status and condition, and be able to assist his attorney. Moreover, even if the minor variation between the standard instruction and the trial court’s instruction created ambiguity, it did not infringe on defendant’s due process rights. With regard to criminal trials, “not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is ‘ “whether the ailing instruction ... so infected the entire trial that the resulting conviction violates due process.” ’ [Citation.] ' “[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” ’ [Citation.] If the charge as a whole is ambiguous, the question is whether there is a ‘ “reasonable likelihood that the jury has applied the challenged instruction in a way” that violates the Constitution.’ ” (Middleton v. McNeil (2004) 541 U.S. 433, 437 [158 L.Ed.2d 701, 124 S.Ct. 1830].) Assuming for purposes of discussion that this standard applies in a competency trial or other competency proceeding (see People v. Dunkle (2005) 36 Cal.4th 861, 899-900 [32 Cal.Rptr.3d 23, 116 P.3d 494]; People v. Johnwell (2004) 121 Cal.App.4th 1267, 1274, fn. 5 [18 Cal.Rptr.3d 286]), the question, then, is whether the difference between the standard version of CALJIC No. 4.10 and the version the trial court recited made it reasonably likely that the jury misunderstood the applicable law. We discern no such reasonable likelihood here. As stated, we believe that the trial court instructed the jury correctly in all material respects, even if it did omit the word “and.” The court did not expressly speak in the disjunctive. If the court’s instruction, as read to the jury, reasonably suggested otherwise, we believe that the record would reflect expressions of concern by counsel, for it would be illogical for the court to tell the jury it could find defendant competent even if, in essence, he was not capable of understanding that he was on trial, as long as he yet could somehow assist his attorney in a rational manner. Counsel was aware of the proper instructional language: The prosecutor correctly read the CALJIC instruction in his argument to the jury, and in his responding argument defense counsel agreed with the prosecutor’s definition. We cannot believe that counsel would have remained silent had the court delivered an instruction that was obviously illogical. In light of the United States Supreme Court’s teaching that a “commonsense understanding of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hairsplitting” (Boyde v. California (1990) 494 U.S. 370, 381 [108 L.Ed.2d 316, 110 S.Ct. 1190]) during the deliberation process, we consider the arguments of counsel in deciding whether the jury misunderstood the instructions (People v. Kelly (1992) 1 Cal.4th 495, 526-527 [3 Cal.Rptr.2d 677, 822 P.2d 385]). There is no reasonable likelihood that the minor departure by the court from the language of the standard instruction in reciting the instruction to the jury caused the jury to misunderstand its duties in a manner that denied defendant his due process rights. Moreover, even if error had occurred, we would find it to be harmless under either the Chapman or Watson standards of prejudice. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824]; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Accordingly, we need not resolve here which standard of prejudice applies. (Cf. People v. Johnwell, supra, 121 Cal.App.4th 1267, 1274-1278 [applying Chapman to a constitutionally based claim of error in giving instruction regarding competency]; cf. also People v. Mickle (1991) 54 Cal.3d 140, 198 [284 Cal.Rptr. 511, 814 P.2d 290] (conc. opn. of Mosk, J.) [same]; People v. Medina (1990) 51 Cal.3d 870, 922 [274 Cal.Rptr. 849, 799 P.2d 1282] (dis. opn. of Broussard, J.) [same]; but see People v. Marks (2003) 31 Cal.4th 197, 222 [2 Cal.Rptr.3d 252, 72 P.3d 1222] [applying Watson to a claim of error for failing to give a proposed competency instruction that was not constitutionally based].) Turning to defendant’s assertion: Although defendant insists that “the competency trial itself was close,” the record belies that view. True, defense expert witnesses testified that defendant suffered from impairments that would render him incompetent to be tried. But the weight of that evidence was diminished by their concessions, and the testimony of prosecution expert witnesses, that defendant was striving to feign mental illness. The defense experts conceded that defendant attempted to manipulate their examinations, but testified that despite those efforts they detected genuine mental difficulties in him. Expert witnesses for the prosecution opined that defendant was competent, and there was evidence that defendant acted normally in jail. When defendant testified on his own behalf at the guilt phase, he was lucid, articulate, and fully able to comprehend the proceedings and to reason in light of them. He ably provided a self-justifying account of himself through his testimony, which he tailored to minimize his culpability. It is plain from the record that defendant had the ability to consult with his counsel with a reasonable degree of rational understanding, and had a rational and factual understanding of the proceedings. For all of these reasons, if error had occurred, we would conclude that it was harmless. GUILT PHASE Guilt Phase Facts The evidence showed that on March 8, 1986, defendant broke into Sarah Anne Lees’s home in Castro Valley, robbed her of her shotgun, and shot her to death with that shotgun from close range. Defendant admitted killing Lees but claimed he did so accidentally. I. Prosecution Case The prosecution theorized that defendant broke into Lees’s empty house, found her shotgun, ambushed her at her front door when she returned home, tried to rape her, and killed her with the shotgun when she resisted. Gary Schellenberg, an Alameda County Sheriff’s Department sergeant, testified that he and a sheriff’s deputy discovered Lees’s body. A criminalist testified that the body was alongside a water bed, essentially nude from the neck down. Lees had been shot in the back, and blood was around her, underneath her, and above her head. A trail of blood led from the house’s entrance to her head, suggesting she had been dragged. The clothing for her upper body had been pulled over her head and neck. Petroleum jelly was found on her inner thighs. A purse was found on top of the bed, with its contents emptied and scattered about. There was no currency on the premises. The criminalist also examined Lees’s truck, which had been found abandoned. He found a shotgun that belonged to Lees and an opened and partly empty box of ammunition inside, the latter containing 17 live rounds. The shotgun itself had blood on it and was loaded with two live rounds and one round that had been expended. The shotgun operated normally and required a normal amount of trigger pull to discharge—six to seven pounds of force. Lees had been shot from a distance of six to 18 inches from the shotgun’s muzzle. Defendant’s fingerprint was recovered from the box of ammunition. His fingerprints also were found on a door and a shard of glass, which appeared to come from a window of the residence that had been broken. A pathologist confirmed that a petroleum-jelly-like substance was found on Lees’s left thigh, right leg, and external genitalia, and that she had been shot in the center of her back. The wound traveled upward at an angle of about 30 degrees toward the front of Lees’s body. She had incurred a blunt-force injury to her right eye near her nose. Her nose was broken, and she had bruises on the right side of her face and her chin. Her facial bruises could have been caused by a blow from a shotgun or a similar blunt object. The blunt-force head injuries could have caused her to be unconscious for a time. Lees had suffered other injuries, including abrasions on her face, head, and a knuckle. She was still wearing a toe ring, earrings, and a watch, but had no rings on her fingers. Blood was found on her left breast; there was no wound at that site and it could have been left by a hand. On cross-examination, the pathologist testified that the angle of the shotgun wound was consistent with the weapon being parallel to the ground and Lees running forward. Lees’s mother, and a good friend of Lees, Carol Correia Tallón, saw Lees on the day of her death. As was her habit, Lees was wearing a number of items of gold jewelry, including a ring with three diamonds, two thinner rings, a bracelet, and a necklace. A police officer testified that defendant was wearing all of these items when he was arrested. An Alameda County crime lab criminalist testified that a hair found on Lees’s left leg and another hair found on her vulva were consistent with defendant’s pubic hair. That did not mean that the hairs necessarily came from defendant; they could have come from another or others whose hairs had the same characteristics. II. Defense Case Defendant testified in his own behalf at the guilt phase. He explained that he was part of a California Youth Authority crew doing maintenance work not far from Lees’s residence. He had been placed in the Youth Authority’s care after pleading guilty to two robberies. On March 7, the day before killing Lees, he had argued with one of his supervisors and had been sent back to the crew bus. The bus was unguarded, and he decided to escape, simply leaving the bus without being observed by Youth Authority officials. After spending a day, a night, and part of another day wandering or resting, he came upon Lees’s house and broke in, seeking refuge from the police and the elements. He thought it was an unoccupied weekend or summer cottage because of its isolated location. He had bypassed other houses because he saw people in them. He did not intend to steal anything when he broke in (thus, defense counsel would later argue, defendant had not committed burglary or felony-murder burglary). Once inside, he found a large bottle of wine and consumed about half of it. He also discovered two marijuana cigarettes and smoked those. Defendant removed his clothes to nap, fell asleep, and was awakened by the barking of one of Lees’s dogs. He saw Lees approach the front door and quickly donned his clothes, which were lying in the hallway. Until she entered the house, he thought she was a visitor because it was daytime and he did not expect the owners to arrive before nightfall, by which point he had planned to have left the premises. Defendant hid, but something had aroused Lees’s suspicions. Once inside, she went to the bedroom, emerged from it carrying a shotgun, appeared to lock the front door, and peered out a window as if fearful of an outside prowler. Defendant panicked because he thought he could not escape. He “rushed out” from his hiding place and wrested the gun away from Lees. During their struggle, he struck her in the face with his fist and the gun itself. His principal concern was to escape with the gun. He then forced Lees into her bedroom and placed the shotgun on a counter. A short time later, Lees ran from the bedroom toward the front door. Defendant grabbed the shotgun from the counter and it accidentally discharged. He may have wanted to threaten her with it, but he did not intend to shoot. Lees collapsed by the front door but defendant did not realize that he had shot her. He thought that she had rendered herself unconscious by colliding with the door. He left the house immediately because he feared that the police might discover him there. Finding no keys in Lees’s truck, he returned to the house, upended her purse and took from its now-exposed contents the car keys, $22.00 in cash, and the rings the police would recover later. He took these items and the shotgun to Lees’s truck. Not wanting Lees to lie unconscious in her own blood (which, on cross-examination, he insisted he saw only on Lees’s face), he moved her body to the bedroom. Defendant placed petroleum jelly on Lees’s body because he wanted her mistakenly to think, when she revived, that he had had sexual intercourse with her. “I was thinking . . . that since she tripped out about giving me the gun, I was wondering how she would trip when she found out that I didn’t have sexual intercourse with her, but it seemed like I did.” Defendant drove away. He paused at one point to consider whether he should return to check on Lees’s condition, but decided that it was too risky and that she would revive in due course. He did not recall seeing a box of shotgun shells in the back of the truck. On cross-examination, defendant admitted that after he saw Lees approach the house he could have avoided confronting her by leaving through a sliding glass door. He was unable to explain why he did not do so. A criminalist for the Alameda County Sheriff’s crime lab testified that there was no trace of semen at the crime scene. A criminalist testified that, in theory, the shotgun could have discharged accidentally if mishandled. m. Prosecution’s Rebuttal Case A firearms specialist testified that Lees’s shotgun did not have an “accumulated trigger pull,” meaning that the full amount of force needed to discharge the weapon was required each time the trigger was pulled. Nor did the shotgun have a hair trigger. He tested the shotgun to see if it would discharge accidentally, but he could not make it do so. Guilt Phase Issues I. Miranda and Doyle Issues Defendant claims that his rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602], were violated by the introduction at trial of parts of a brief conversation that took place between him and law enforcement officers before he invoked his Miranda right to counsel. He further claims that presenting this evidence violated his rights to due process and to the assistance of counsel. (U.S. Const., 5th, 6th, & 14th Amends.) He maintains that the trial court erred when it denied a motion to exclude his extrajudicial statements. At a hearing on the motion, a detective sergeant explained that he and a colleague interviewed defendant in a police interview room after he had been taken into custody. As the sergeant was plugging in a tape recorder to begin the formal interview, he explained that he and his colleague were there because defendant was a suspect in Lees’s murder. Defendant spontaneously admitted escaping from the California Youth Authority work detail, but denied any contact with Lees. He then requested a public defender and the formal interview never occurred. Defendant made his statements before his interrogators could administer a Miranda advisement to him. At trial, the detective sergeant related defendant’s statements to the jury. In closing argument, the prosecutor brought up the falsity of defendant’s statements to argue that defendant was unworthy of belief and that his story regarding Lees’s death should be discounted accordingly. Defendant maintains that permitting the sergeant’s testimony violated Miranda principles because his statements were elicited during custodial interrogation before he was cautioned. The People counter that because defendant volunteered his statements before any questioning began, no Miranda (or Sixth Amendment) violation occurred. We agree. Defendants who are in custody must be given Miranda warnings before police officers may interrogate them. (Rhode Island v. Innis (1980) 446 U.S. 291, 297 [64 L.Ed.2d 297, 100 S.Ct. 1682].) Innis explained that “the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” (Id. at pp. 300-301, fns. omitted.) “ ‘Clearly, not all conversation between an officer and a suspect constitutes interrogation. The police may speak to a suspect in custody as long as the speech would not reasonably be construed as calling for an incriminating response.’ ” (People v. Haley (2004) 34 Cal.4th 283, 301 [17 Cal.Rptr.3d 877, 96 P.3d 170]; see People v. Cunningham (2001) 25 Cal.4th 926, 993 [108 Cal.Rptr.2d 291, 25 P.3d 519].) “[F]ocus[ing] primarily upon the perceptions of the suspect” (Rhode Island v. Innis, supra, 446 U.S. 291, 301), we conclude that telling defendant he was a murder suspect did not call on him to confess; rather, the effect should have been, and indeed was, the opposite: Defendant admitted only the obvious (that he had escaped from a work detail) and denied that he killed Lees. Moreover, here as in Haley, “ ‘[t]he record does not establish that defendant was subject to “compelling influences, psychological ploys, or direct questioning.” ’ ” (Haley, supra, 34 Cal.4th at p. 301.) There was no Miranda violation. Citing the decision in Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240], defendant also contends that the trial court erred in admitting evidence that defendant implicitly invoked his right to silence by requesting an attorney. Defendant forfeited this claim by failing to object to the introduction of this evidence at trial. (People v. Ramos (1997) 15 Cal.4th 1133, 1171 [64 Cal.Rptr.2d 892, 938 P.2d 950].) In any event, we find no error. In Doyle v. Ohio, supra, 426 U.S. 610, 618, the United States Supreme Court held that “it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” “A similar process of reasoning supports the conclusion that comment which penalizes exercise of the right to counsel is also prohibited. [Citations.]” (People v. Crandell (1988) 46 Cal.3d 833, 878 [251 Cal.Rptr. 227, 760 P.2d 423].) But this does not mean that it always is error to permit evidence that a defendant exercised his right to counsel. In Crandell, the prosecutor played a tape recording of a police interview with the defendant, conducted shortly after his arrest, during which the defendant said he wanted an attorney. During argument, the prosecutor invited the jury to play the recording during deliberations and listen to the defendant’s “ ‘tone of voice’ ” when he asked for an attorney, which the prosecutor argued was a “ ‘flippant response.’ ” (People v. Crandell, supra, 46 Cal.3d 833, 878.) We rejected the defendant’s argument that this violated the rule announced in Doyle: “Here the evidence of defendant’s invocation of the right to counsel was received without objection and the remarks of the prosecutor did not invite the jury to draw any adverse inference from either the fact or the timing of defendant’s exercise of his constitutional right.” (Ibid.) The same is true here. The prosecutor relied upon defendant’s pretrial denial that he had entered the victim’s house and killed the victim to attack his credibility. The prosecutor referred to the fact that defendant asked for an attorney only to show that the interview ended after defendant denied any involvement in the victim’s death. (See also People v. Hughes (2002) 27 Cal.4th 287, 332, fn. 4 [116 Cal.Rptr.2d 401, 39 P.3d 432] [no Doyle error if “the evidence of defendant’s assertion of his right [to counsel was not] offered to penalize defendant by illustrating consciousness of guilt, but instead ... to demonstrate a plan to destroy evidence”].) In any event, this brief and mild reference to the fact that defendant asked for an attorney did not prejudice defendant. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66 [17 Cal.Rptr.3d 710, 96 P.3d 30]; People v. Crandell, supra, 46 Cal.3d 833, 879.) II. Reliability of Hair Comparison Evidence Defendant claims that the trial court erred in permitting the prosecution to introduce evidence that a hair found on Lees’s left leg and another hair found on her vulva were consistent with his pubic hair. He maintains that the rulings violated his state and federal constitutional rights to due process of law and that the evidence was substantially more prejudicial than probative (Evid. Code, § 352) because the hair comparison evidence was “completely unreliable.” Defendant did not object on due process grounds below; instead, he interposed objections on the basis of Evidence Code section 352 and the evidence’s scientific reliability under the Kelly-Frye test (People v. Kelly (1976) 17 Cal.3d 24 [130 Cal.Rptr. 144, 549 P.2d 1240]; Frye v. United States (D.C. Cir. 1923) 54 App. D.C. 46 [293 F. 1013]). (See People v. Leahy (1994) 8 Cal.4th 587, 594-595 [34 Cal.Rptr.2d 663, 882 P.2d 321] [describing the Kelly-Frye test].) “Defendant argues on appeal primarily . . . that the trial court should have excluded the evidence for the reason asserted at trial—that it was more prejudicial than probative. He also argues that this asserted error violated his right to due process. He may make that argument.” (People v. Partida (2005) 37 Cal.4th 428, 431 [35 Cal.Rptr.3d 644, 122 P.3d 765].) But on .the merits, we conclude that no constitutional error occurred. As defendant concedes, this court has long approved of admitting forensic hair comparison evidence. “Hair comparison evidence that identifies a suspect or victim as a possible donor has been routinely admitted in California for many years----” (People v. Pride (1992) 3 Cal.4th 195, 239 [10 Cal.Rptr.2d 636, 833 P.2d 643].) Defendant asserts that “developments in other jurisdictions call into question the introduction of hair comparison evidence against a criminal defendant to prove his guilt,” citing at length a Canadian provincial commission report (Kaufman, Ministry of Ontario Atty. Gen., Rep. of the Kaufman Com. on Proceedings Involving Guy Paul Morin (1999) <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/morin/> [as of Apr. 10, 2006]), a federal district court decision (Williamson v. Reynolds (E.D.Okla. 1995) 904 F.Supp. 1529), a book (Scheck et al., Actual Innocence (2000) ), and law review articles (Smith & Goodman, Forensic Hair Comparison Analysis etc. (1996) 27 Colum. Hum. Rts. L.Rev. 227; Imwinkelried, Forensic Hair Analysis etc. (1982) 39 Wash. & Lee L.Rev. 41). This authority does not convince us to retreat from our observation in Pride, supra, at page 239, that “California courts have long assumed that hair comparison evidence of the sort admitted here has some logical bearing on defendant’s commission of the charged crimes. [Citations.]” The criminalist acknowledged in her testimony that the hair comparison evidence was of limited significance. The trial court did not err in admitting it. Accordingly, there was no due process violation. III. Effect on Jury of Defendant’s Misconduct During the Trial Defendant claims that the trial court violated his right to an impartial jury under the Sixth and Fourteenth Amendments to the federal Constitution and article I, section 16 of the California Constitution by denying his motion to voir dire the seated jurors to determine whether his misconduct had prejudiced them. Defendant misbehaved on several occasions. He telephoned certain jurors from jail. He struck Carolyn Roundey, one of his two defense counsel, knocking her to the ground and causing jurors to react in alarm. After the assaultive incident, defendant unsuccessfully moved to voir dire the jurors on whether each could remain impartial. Defendant’s claim must be rejected at the threshold in light of People v. Williams (1988) 44 Cal.3d 1127 [245 Cal.Rptr. 635, 751 P.2d 901], in which, considering similar events, we upheld the trial court’s refusal to permit voir dire to determine if the defendant’s disruptive in-court conduct had prejudiced the jury. (Id. at pp. 1155-1157.) To be sure, in Williams we commented that it might have been useful to voir dire the jury regarding the defendant’s conduct, and ruled against him solely on the ground that any error in failing to do so was harmless under the circumstances. (Id. at pp. 1156-1157.) But we also noted that “As a matter of policy, a defendant is not permitted to profit from his own misconduct.” (Id. at p. 1156.) We adhere to that view here. Defendant may not complain on appeal about the possible effect on jurors of his own misbehavior after the jury has been sworn. (People v. Hendricks (1988) 44 Cal.3d 635, 643 [244 Cal.Rptr. 181, 749 P.2d 836]; see People v. Hines (1997) 15 Cal.4th 997, 1054 [64 Cal.Rptr.2d 594, 938 P.2d 388] [rejecting a claim of juror misconduct on the ground that if any occurred the defendant invited it, and citing with approval the policy statement in Williams]; see also People v. Gomez (1953) 41 Cal.2d 150, 162 [258 P.2d 825] [during voir dire defendant attempted to escape, causing a commotion; doctrine of invited error applied to reject contention that the trial court should have discharged the jury panel].) IV. Court’s Refusal to Excuse Defendant from the Courtroom In a claim related to claim HI, ante, defendant asserts that the trial court violated his rights to due process and to an impartial jury under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution and article I, sections 7, 15, and 16 of the California Constitution when it refused to excuse him from the proceedings at his request. He maintains that the court effectively compelled him to physically disrupt the proceedings before it would excuse him from the courtroom. During voir dire, the trial court at times had permitted defendant to absent himself on request, but it was unwilling to do so during the taking of evidence. Read together, the version of section 977 in effect at the time of the guilt phase trial and section 1043 provide that capital defendants may not voluntarily absent themselves during the taking of evidence at their trials unless they have disrupted the trial and the court has reason to believe the disruptive behavior will continue. As we explained in a decision that postdates defendant’s trial, “a capital defendant may not voluntarily waive his right to be present during . . . those portions of the trial in which evidence is taken, and .. . may not be removed from the courtroom unless he has been disruptive or threatens to be disruptive.” (People v. Jackson (1996) 13 Cal.4th 1164, 1211 [56 Cal.Rptr.2d 49, 920 P.2d 1254].) The record reflects that, during a phase of the trial at which evidence was being presented, an afternoon court session began with defendant repeatedly asking to be excused from the courtroom. The trial court told defendant to calm down, but he began to utter expletives, which left the court unmoved. Defendant asked, “So I’ve got to do something physical to get removed?” and, when the court continued to tell him to calm down, struck Roundey. The court suspended the proceedings and ordered defendant removed from the courtroom. The court explained to the jurors: “A defendant cannot stop a trial. If the defendant acts up, I have no choice but to remove him. Unfortunately, I cannot remove him until he acts up, which is part of the problem. If a defendant can stop a trial, all he can do is act up.” As stated in our discussion of claim III, ante, defendant cannot complain of the effects of his in-court misbehavior. This forecloses his federal and state constitutional claims. In any event, i.e., on the merits, we review a trial court’s actions in controlling a disruptive defendant for an abuse of discretion. (See People v. Welch (1999) 20 Cal.4th 701, 774 [85 Cal.Rptr.2d 203, 976 P.2d 754].) None occurred. To be sure, the trial court could have acted sooner to control defendant. Section 1043 permitted the court to remove defendant when he became disruptive, and he had become disruptive before he physically lashed out at his counsel. At defendant’s first oral outburst, the court could have sent the jury out of the courtroom and dealt with defendant’s demand outside the jury’s presence. Or, without excusing the jury, it could have ruled that defendant was being disruptive and excused him, which, with the benefit of hindsight, would have spared the jury from witnessing defendant’s assault and the melee that followed among defendant, court personnel, and law enforcement personnel. But the trial court was not required to remove defendant immediately the first time he disrupted the proceedings. V. Court’s Agreeing to Excuse Defendant from the Courtroom In an argument that he presents in the alternative to claim IV, ante, defendant claims that the trial court violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution (specifically his rights to due process and to confront the witnesses against him), and his rights under sections 977 and 1043 to be present during the trial, when it acceded to his wishes to be excused on certain days. There was no reversible error and no violation of the Fifth or Sixth Amendments. First, defendant maintains that the trial court erred in not requiring him to waive in writing his presence during voir dire or other proceedings for which former section 977 did not compel his presence but required a written waiver if he wanted to be absent. (Former § 977, subd. (b), as amended by Stats. 1968, ch. 1064, § 1, pp. 2064-2065.) To the extent that these proceedings occurred before the day on which he disrupted the trial, and to the extent that the court required only oral waivers and did not attempt to obtain them in writing, it erred. (People v. Garrison (1989) 47 Cal.3d 746, 782 [254 Cal.Rptr. 257, 765 P.2d 419].) The errors, however, were harmless (People v. Watson, supra, 46 Cal.2d 818, 836), because the record makes clear that defendant voluntarily waived his right to be present, if only orally. (Garrison, supra, at pp. 782-783; People v. Ruiz (2001) 92 Cal.App.4th 162, 169 [111 Cal.Rptr.2d 640].) Second, defendant complains that the trial court should not have honored his requests to be excused from court sessions involving the taking of evidence at the guilt phase after he assaulted his counsel. As stated, the version of section 977 in effect at the time of the guilt phase trial and section 1043 provide that capital defendants may not voluntarily absent themselves during the taking of evidence at their trials unless they have disrupted the trial and the court has reason to believe the disruptive behavior will continue. From all that appears in the record, the trial court was entitled to conclude, following defendant’s assault on his counsel, that defendant would continue to disrupt the proceedings if forced to attend them. Under the circumstances, it did not abuse its discretion in not forcing defendant, following his assault on counsel, to attend on those days that he did not wish to do so. (See People v. Gutierrez (2003) 29 Cal.4th 196, 1208 [130 Cal.Rptr.2d 917, 63 P.3d 1000].) Defendant further maintains that, no matter what statutory law may provide, the Fifth and Sixth Amendments to the federal Constitution require the attendance of capital defendants at trial, even if they do not wish to be present. Defendant correctly notes that we have previously rejected this argument. (People v. Jackson, supra, 13 Cal.4th 1164, 1210; People v. Price (1991) 1 Cal.4th 324, 405 [3 Cal.Rptr.2d 106, 821 P.2d 610].) We adhere to the view we expressed in Jackson and Price. VI. Adequacy of Record on Appeal Defendant claims that the trial court’s failure to preserve a complete record for appeal violated his rights under the Fifth, Eighth, and Fourteenth Amendments to the federal Constitution, along with California constitutional, statutory, and court rules provisions. As regards his constitutional claims, he identifies violations of his rights to due process under the Fifth and Fourteenth Amendments and to the equal protection of the laws under the Fourteenth Amendment, along with rights guaranteed by article I, sections 7, 15, 17, and 24 of the California Constitution. His other claims invoke section 190.9, subdivision (a), and, as currently numbered, rule 34.1(a)(2) of the California Rules of Court. If any part of the proceedings was not reported as required by section 190.9, subdivision (a), “[e]rror it was; in the absence of prejudice, however, it is not reversible.” (People v. Freeman (1994) 8 Cal.4th 450, 509 [34 Cal.Rptr.2d 558, 882 P.2d 249].) “ ‘A criminal defendant is . . . entitled to a record on appeal that is adequate to permit meaningful review. . . . The record on appeal is inadequate, however, only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal. [Citation.] It is the defendant’s burden to show prejudice of this sort.’ ” (People v. Heard (2003) 31 Cal.4th 946, 970 [4 Cal.Rptr.3d 131, 75 P.3d 53].) Defendant has failed to do so here. He asserts that jury instruction conferences were not reported and cannot be reconstructed, and also that “two sealed reports have been lost, and no one can remember what they contained.” Regarding the unreported conferences, “we are able to review the . . . instructions themselves that were the subject of these conferences” (People v. Welch, supra, 20 Cal.4th 701, 774) and in this case, as the rest of our decision makes clear, that suffices to permit defendant to prosecute his appeal (see also People v. Freeman, supra, 8 Cal.4th 450, 510). As for the sealed reports whose content no one can remember, nothing in defendant’s appeal permits us to conclude he has met his burden of showing prejudice as a result of any loss of these items. Accordingly, we find no prejudicial error under state law (People v. Watson, supra, 46 Cal.2d 818, 836), nor any prejudicial federal constitutional error (Chapman v. California, supra, 386 U.S. 18, 24). Nevertheless, we continue to “emphasize that trial courts should meticulously comply with Penal Code section 190.9, and place all proceedings on the record.” (People v. Freeman, supra, 8 Cal.4th 450, 511.) VII. Prosecutor’s Remarks During Closing Argument Defendant claims that his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and article I, sections 7, 15, and 17 of the California Constitution, were violated by improper remarks the prosecutor made during closing argument. We disagree. Defendant finds objectionable the following remarks, or categories of remarks, by the prosecutor; (1) a statement in which the prosecutor asked the jury to believe his assertion that defendant was a liar; (2) comments to the effect that defense counsel was aiding defendant in marketing a story to the jury that understated defendant’s true culpability; (3) comments that overstated the value of the hair comparison evidence; (4) comments on defendant’s invocation of his Miranda rights {Miranda v. Arizona, supra, 384 U.S. 436); and (5) appeals to religious values in urging a guilty verdict. Because defendant did not object to, or request that the jury be admonished in light of, any of the foregoing remarks, the claim has been forfeited. As noted, “ ‘[a]s 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. Prieto (2003) 30 Cal.4th 226, 259 [133 Cal.Rptr.2d 18, 66 P.3d 1123].) Defendant maintains that if we find his claim forfeited, then counsel’s failure to ask the court to intervene amounted to a denial of his right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution and article I, section 15 of the California Constitution. A claim of ineffective assistance of counsel in violation of the Sixth Amendment entails deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of an adverse effect on the outcome. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 104 S.Ct. 2052].) The Strickland standards also apply to defendant’s claim under article I, section 15 of the California Constitution. (E.g., People v. Waidla (2000) 22 Cal.4th 690, 718 [94 Cal.Rptr.2d 396, 996 P.2d 46].) “Failure to object rarely constitutes constitutionally ineffective legal representation ....” (People v. Boyette (2002) 29 Cal.4th 381,424 [127 Cal.Rptr.2d 544, 58 P.3d 391].) Moreover, “[i]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.” (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069 [99 Cal.Rptr.2d 1, 5 P.3d 68].) These were not situations in which there could be no satisfactory explanation for counsel’s failing to object to the remarks of which defendant now complains. For example, counsel could have preferred not to draw the jurors’ attention to particular comments by the prosecutor by objecting to them. We cannot find on this record that counsel’s performance was deficient. In any event, the claim is without merit. Except in one instance, it is clear that the remarks were not objectionable. In the one instance in doubt, it is unlikely that misconduct occurred, but if it did, it was de minimis. Thus, there was no prejudice under the applicable ineffective assistance of counsel standard. Under federal law, “ ‘Improper remarks by a prosecutor can “ ‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.’ ” ’ ” (People v. Carter (2005) 36 Cal.4th 1114, 1204 [32 Cal.Rptr.3d 759, 117 P.3d 476].) Under state law, “ ‘a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair.’ ” {Ibid.) The prosecutor argued, regarding the defense’s version of events, “None of this can be true. Please believe me. He has lied through his teeth in trying to sell this story to you.” Defendant asserts that by asking the jurors to believe him, the prosecutor acted improperly. There was no misconduct. The general rule is that improper vouching for the strength of the prosecution’s case “ ‘involves an attempt to bolster a witness by reference to facts outside the record.’ ” (People v. Williams (1997) 16 Cal.4th 153, 257 [66 Cal.Rptr.2d 123, 940 P.2d 710], italics omitted.) Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. (See, e.g., People v. Ayala (2000) 24 Cal.4th 243, 288 [99 Cal.Rptr.2d 532, 6 P.3d 193]; Williams, supra, at p. 257; People v. Medina (1995) 11 Cal.4th 694, 756-758 [47 Cal.Rptr.2d 165, 906 P.2d 2].) Specifically, a prosecutor’s reference to his or her own experience, comparing a defendant’s case negatively to others the prosecutor knows about or has tried, is improper. (Medina, supra, at p. 758.) Nor may prosecutors offer their personal opinions when they are based solely on their experience or on other facts outside the record. (See People v. Farnam (2002) 28 Cal.4th 107, 200 [121 Cal.Rptr.2d 106, 47 P.3d 988]; People v. Frye (1998) 18 Cal.4th 894, 975-976, 1018-1019 [77 Cal.Rptr.2d 25, 959 P.2d 183].) It is not, however, misconduct to ask the jury to believe the prosecution’s version of events as drawn from the evidence. Closing argument in a criminal trial is nothing more than a request, albeit usually lengthy and presented in narrative form, to believe each party’s interpretation, proved or logically inferred from the evidence, of the events that led to the trial. It is not misconduct for a party to make explicit what is implicit in every closing argument, and that is essentially what the prosecutor did here. Thus, counsel was not ineffective for failing to object to the comment. Defendant maintains that the prosecutor engaged in misconduct, in violation of his constitutional rights, when he questioned defense counsel’s integrity with remarks such as: “Now, [defense counsel] has a tough job, and he tried to smoke one past us,” and that counsel “will admit only what he has to admit and no more. He will come in at the lowest price possible.” This, too, was fair comment, and “[n]o misconduct occurred. This case does not involve such forbidden prosecutorial tactics as falsely accusing counsel of fabricating a defense or otherwise deceiving the jury. (People v. Bemore (2000) 22 Cal.4th 809, 846 [94 Cal.Rptr.2d 840, 996 P.2d 1152].) The prosecutor simply used colorful language to permissibly criticize counsel’s tactical approach. (Ibid.; see People v. Marquez (1992) 1 Cal.4th 553, 575-576 [3 Cal.Rptr.2d 710, 822 P.2d 418] [upholding reference to defense as ‘smokescreen’].) These comments were explicitly aimed at counsel’s closing argument and statement, rather than at him personally. We see no improper attack on counsel’s integrity.” (People v. Stitely (2005) 35 Cal.4th 514, 560 [26 Cal.Rptr.3d 1, 108 P.3d 182].) Defendant asserts that the following remark unduly bolstered the slight value of the hair comparison evidence: “Now, why have we had no reference at all in the defense argument to the pubic hairs that were found, preserved, compared and identified?” It was proper to call the jury’s attention to omissions or other deficiencies in defendant’s closing argument. “We accord the prosecutor wide latitude in describing the factual deficiencies of the defense case.” (People v. Cash (2002) 28 Cal.4th 703, 733 [122 Cal.Rptr.2d 545, 50 P.3d 332].) As discussed ante, at page 198, defendant asserts that the prosecutor committed Doyle error (Doyle v. Ohio, supra, 426 U.S. 610), improperly using against him his invocation of his Miranda rights by arguing, “the defendant then terminated the conversation by demanding a ‘PD [public defender],’ as he put it.” But as we explained, there was no Doyle error, and therefore there was no prosecutorial misconduct. Defendant perceives misconduct in the prosecutor’s reference to religious tenets, made through these remarks, which were the prosecutor’s final exhortation: “You know, come judgment day this defendant will not have the opportunity to meet Sarah Anne Lees again; but if he did, he’d have but two words to say[,] I’m sorry, assuming he had any conscience, [f] You folks do have a conscience. So I urge you that whatever you do with this case, come judgment day you don’t find yourself in the same position he would be in otherwise. Be true to Sarah. Be true to . . . this defendant. Let the chips fall where they may and do the right thing.” “ ‘ “[T]he primary vice in referring to the Bible and other religious authority is that such argument may ‘diminish the jury’s sense of responsibility for its verdict and . . . imply that another, higher law should be applied in capital cases, displacing the law in the court’s instructions.’ ” [Citations.]’ [Citation.] [f] Even if the prosecutor’s argument was error, such error was harmless. [Citation.] The prosecutor’s biblical argument was only a small part of [his] argument, the bulk of which focused on arguing to the jury why it should find that the statutory aggravating factors outweighed the mitigating factors.” (People v. Samuels (2005) 36 Cal.4th 96, 134 [30 Cal.Rptr.3d 105, 113 P.3d 1125].) Moreover, “our statements clearly condemning prosecutorial reliance on biblical authority in penalty phase closing argument were made in a series of cases filed in late 1992 and 1993. [Citations.] The prosecutor’s . . . closing argument predated these decisions.” (People v. Vieira (2005) 35 Cal.4th 264, 298, fn. 11 [25 Cal.Rptr.3d 337, 106 P.3d 990].) Under the circumstances, we are loath to state definitively that the prosecutor’s fleeting references to “judgment day” amounted to misconduct at all. If it was, it certainly was harmless, whether viewed through the prism of federal constitutional law (Chapman v. California, supra, 386 U.S. 18, 24) or state law (People v. Watson, supra, 46 Cal.2d 818, 836). In sum, none of the remarks amounted to an instance of prosecutorial misconduct, except, conceivably, the prosecutor’s brief mention of a biblical precept. As stated, the lack of merit to defendant’s claims forecloses, on this record, any notion that he was denied the effective assistance of counsel. VIH. Claim of Instructional Error Regarding Intent to Kill Defendant contends we must set aside the jury’s findings that the special circumstance allegations are true because the trial court committed instructional error when, in answer to the jury’s question about the significance of the intent element, it gave the jury