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People v. Mayfield1/2/1997
and that the error denied him his right to a reliable penalty determination (U.S. Const., 5th, 8th, & 14th Amends.). He observes that Fister, the store clerk and robbery victim, had selected someone else's photograph from a photographic lineup shortly after the offense and that Fister's physical description of the robber did not match defendant. Fister described the robber as being shorter than six feet one inch (Fister's own height) and estimated the robber's height at five feet ten or eleven inches, whereas defendant was six feet three inches. Fister described the robber as being of average build, not muscular, and estimated the robber's weight at 115 to 120 pounds, whereas defendant weighed 180 to 185 pounds and had a muscular build. Fister said the robber had no facial hair, whereas defendant had a mustache and hair on his chin.
Although these discrepancies undermined the strength of Fister's in-court identification of defendant, we agree with the trial court that the credibility of Fister's identification testimony was properly submitted to the jury because a rational juror could have been persuaded beyond a reasonable doubt that defendant was the robber. (See People v. Clair (1992) 2 Cal. 4th 629, 680 [7 Cal. Rptr. 2d 564, 828 P.2d 705].)
We note, first, that there was no evidence that the features of the person whose photograph Fister selected from the photo lineup differed significantly from those of defendant. Fister admitted he was not good at estimating height or weight, that he had paid little attention to the robber until he produced a knife, and that thereafter Fister was not thinking about the robber's height or weight or facial hair. The jury could also properly consider that the robbery occurred on the night that Sergeant Wolfley was killed and that the 7-Eleven market was located just a few blocks from the house where defendant was staying and just a few blocks from the service station at which Sergeant Wolfley had his fatal encounter with defendant. Also, Fister testified that the robber purchased a small package of sunflower seeds, a similar package was found in William Haverstick's bedroom after defendant's surrender, and Haverstick denied that the package was his. Finally, Fister testified that the robber left the scene on a 10-speed bicycle, and defendant was admittedly riding a 10-speed bicycle that evening.
D. Prosecutorial Misconduct
Defendant contends that the prosecutor committed misconduct in closing argument to the jury by urging the jury to disregard sympathy, arguing facts not in evidence, appealing to passion and prejudice, and interjecting personal opinion. He further contends that this alleged misconduct violated his federal constitutional rights (U.S. Const., 5th, 6th, 8th, & 14th Amends.) and requires reversal of the penalty verdict and judgment of death.
With one exception, defense counsel did not object to any of the statements here challenged. Absent objection, a claim of prosecutorial misconduct in argument is not reviewable on appeal. ( People v. Berryman, (supra) , 6 Cal. 4th 1048, 1072.) Recognizing this difficulty, defendant asserts that his attorney's failure to object deprived him of his right to the effective assistance of counsel. We reject each claim.
1. Disregarding Sympathy
During argument, the prosecutor told the jurors that if they allowed sympathy for the defendant to overwhelm them, "we might as well do away with the death penalty." After defense counsel objected that the prosecutor was improperly urging the jury to disregard sympathy, the prosecutor made this statement: "I want to make it clear. The law does provide that you can exercise sympathy. . . . You can e
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