Filed 9/24/13 P. v. Saydyk CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



THE PEOPLE,                                                                                  C069896

                   Plaintiff and Respondent,                                      (Super. Ct. Nos. 10F2417,
                                                                                          11F1359)
         v.

JACOB MATTHEW SAYDYK,

                   Defendant and Appellant.




         Defendant Jacob Matthew Saydyk appeals his conviction for possession of
methamphetamine, claiming the prosecutor committed misconduct by (1) referencing
defendant’s postarrest silence in cross-examination and closing arguments, and
(2) eliciting evidence of defendant’s admissions of being a methamphetamine addict in
violation of Miranda.1 We find the claimed errors forfeited for failure to object
specifically on the grounds of prosecutorial misconduct and to request the trial court




1   Miranda v. Arizona (1996) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda).

                                                             1
admonish the jury. Moreover, even of the claims that were not forfeited, we find no
prosecutorial misconduct. Accordingly, we affirm the judgment.
                                    BACKGROUND
      Early in the morning of March 3, 2010, Shasta County Sheriff’s Department
Deputies Mike Tumelson and Jon Ruiz responded to a complaint about loud music at a
residence. At the scene, the deputies approached defendant and Ariel Lovell, who were
standing in the parking lot near the residence. The deputies ran a check for wants,
warrants, or holds on defendant and confirmed a warrant had been issued for his arrest.
Tumelson handcuffed and searched defendant incident to the arrest. In the right-hand
coin pocket of defendant’s pants, Tumelson found a bag containing a usable amount of
methamphetamine. When Tumelson pulled the methamphetamine out of the pocket,
defendant spontaneously said the methamphetamine was not his and he had borrowed the
pants. Defendant did not identify who had lent him the pants, and absent any other
indication the pants did not belong to defendant, Tumelson did not investigate
defendant’s claim further.
      Defendant testified he had been laying sod all day, and when he got off work he
borrowed his friend Branson Lovell’s pants so he could wear clean clothes to visit
another friend. He did not know Branson used methamphetamine and did not know there
was methamphetamine in the pants pocket. He did not tell Tumelson he had borrowed
the pants before the search but told him after Tumelson found the methamphetamine. He
did not tell Tumelson to whom the pants belonged because he did not feel there was any
need. Defendant testified he had never used methamphetamine and prior to his arrest had
only seen it on television shows. Defendant admitted that in November 2010 he had been
involved in a vehicle accident while he was under the influence of alcohol. Tumelson
investigated that accident. Defendant acknowledged he initially lied to Tumelson and




                                            2
claimed he was not the driver but later admitted he was the driver.2 Defendant admitted
he had an alcohol problem.
       Tumelson testified in rebuttal that he had other exchanges with defendant during
which they had spoken about defendant’s methamphetamine use. In January 2011
Tumelson was dispatched to defendant’s mother’s home on a disturbance call related to
defendant’s behavior at the home. Tumelson spoke with defendant regarding his
argumentative and confrontational behavior, and defendant admitted he had a
methamphetamine addiction. Tumelson also spoke with defendant about community
drug treatment programs. Defendant exhibited symptoms of being under the influence,
but Tumelson did not investigate further. He was able to get defendant to leave his
mother’s home and stop the disturbance. Defendant was not in custody at the time of the
conversation. Tumelson and defendant also had a conversation in February 2011 when
Tumelson responded to a report of a possible burglary in progress. Another officer had
detained defendant in the back of a patrol car and Tumelson asked if defendant had
sought treatment for his addiction.
       Defendant was charged with possession of methamphetamine. (Health & Saf.
Code, § 11377, subd. (a).) The complaint further alleged he had a prior serious felony
conviction. (Pen. Code, § 1170.12.) Following trial, a jury found defendant guilty of
possession of methamphetamine, and in bifurcated proceedings, the court found the prior
strike allegation true. Separately, a plea agreement was reached in case No. 11F1359.
As part of that plea, the parties agreed to a term of nine years in state prison on case
No. 11F1359 and one year four months on case No. 10F2417 (one-third the midterm,
doubled pursuant to the strike).



2 The November 30, 2010, accident was the subject of a separate criminal case, case
No. 11F1359. The substantive facts underlying that case are not relevant to any issue on
appeal and are not recounted here.

                                              3
                                       DISCUSSION
                                              I
       Defendant contends his conviction must be reversed because prosecutorial
misconduct, which violated “the spirit and the letter of Doyle v. Ohio (1976) 426 U.S.
610,” deprived him of due process. He complains the prosecutor committed misconduct
by repeatedly attempting to elicit evidence of defendant’s postarrest silence during cross-
examination of defendant and rebuttal examination of Tumelson, and emphasizing that
postarrest silence in closing argument. He claims the prosecutor committed misconduct
by violating a court order to limit the examination of Tumelson on defendant’s failure to
identify the owner of the pants to what defendant said and did at the scene of the arrest.
Defendant also argues the prosecutor committed further misconduct by “revisiting the
issue of [defendant’s] post-arrest silence” in closing argument. Defendant argues these
references penalized him for invoking his constitutional right to remain silent. We will
conclude defendant forfeited any objection he might have had to the claimed
prosecutorial misconduct, and in any event, there was no misconduct.
Forfeiture of Misconduct Claims by Failure to Object
       “It is misconduct for a prosecutor to violate a court ruling by eliciting or
attempting to elicit inadmissible evidence in violation of a court order. [Citation.] It is
also misconduct for a prosecutor to make remarks in opening statements or closing
arguments that refer to evidence determined to be inadmissible in a previous ruling of the
trial court.” (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) To show prejudicial
prosecutorial misconduct, a defendant must show (1) as a matter of federal constitutional
law, the prosecutor’s behavior comprised a pattern of conduct so egregious that it
violated due process, i.e., it rendered the trial fundamentally unfair (People v. Bennett
(2009) 45 Cal.4th 577, 594-595), or (2) as a matter of state law, the prosecutor engaged in
deceptive or reprehensible methods to attempt to persuade either the court or the jury, and
it is reasonably probable the defendant would have fared better had the misconduct not

                                              4
occurred (id. at p. 595; People v. Milner (1988) 45 Cal.3d 227, 245). Furthermore, to
raise prosecutorial misconduct on appeal, a defendant must timely and specifically object
and request a proper admonition. (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill);
People v. Pitts (1990) 223 Cal.App.3d 606, 691-692.) There are several exceptions to
this general rule, however, unless the failure to do so is excused: if an objection or
request for admonition would have been futile; if an admonition would not have cured the
harm caused by the misconduct; or 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.’ ” (Hill, supra, 17 Cal.4th at p. 820.)
         Here, defendant did not make a timely and specific objection on the grounds of
prosecutorial misconduct to any of the conduct about which he now complains. Nor did
he request the jury be admonished to disregard any impropriety. Defendant makes no
attempt to bring himself within any of the exceptions to the forfeiture rule identified in
Hill. Accordingly, defendant has forfeited his claims of misconduct. Even assuming
defendant had preserved his prosecutorial misconduct claims, however, we find they lack
merit.
Doyle Error
         The due process clause of the Fourteenth Amendment to the United States
Constitution prohibits a prosecutor from impeaching a defendant’s trial testimony with
evidence that the defendant was silent after being advised of his rights under Miranda.
(Doyle v. Ohio (1976) 426 U.S. 610, 618 [49 L.Ed.2d 91, 98] (Doyle); People v. Earp
(1999) 20 Cal.4th 826, 856; People v. Champion (2005) 134 Cal.App.4th 1440, 1447
(Champion).) On the other hand, “if no Miranda warning has been given, evidence of the
accused’s silence is admissible to impeach a defense offered for the first time at trial.”
(People v. O’Sullivan (1990) 217 Cal.App.3d 237, 244; see Fletcher v. Weir (1982)
455 U.S. 603, 605-607 [71 L.Ed.2d 490, 493-494] (Fletcher); Jenkins v. Anderson (1980)
447 U.S. 231, 239-240 [65 L.Ed.2d 86, 95-96]; Earp, supra, 20 Cal.4th at pp. 856-857;

                                              5
People v. Delgado (1992) 10 Cal.App.4th 1837, 1842 (Delgado).) “ ‘The prosecutor
cannot use the defendant’s invocation of his right to remain silent or refusal to answer
questions as evidence against him. [Citations.] Particularly, the defendant’s silence may
not be used to impeach his credibility. [Citations.] [¶] To establish a violation of due
process under Doyle, the defendant must show that the prosecution inappropriately used
his postarrest silence for impeachment purposes and the trial court permitted the
prosecution to engage in such inquiry or argument.’ (People v. Champion (2005)
134 Cal.App.4th 1440, 1448.) ‘To assess whether these questions constitute Doyle error,
we ask whether the prosecutor referred to the defendant’s post-arrest silence so that the
jury would draw “inferences of guilt from [the] defendant’s decision to remain silent after
. . . arrest.” [Citation.]’ (Smith v. Jones (6th Cir. 2009) 326 Fed.Appx. 324, 330.)”
(People v. Hollinquest (2010) 190 Cal.App.4th 1534, 1555-1556.)
       “Doyle bars the use against a criminal defendant of silence maintained after
receipt of governmental assurances.” (Anderson v. Charles (1980) 447 U.S. 404, 408
[65 L.Ed.2d 222, 226] (Anderson).) Doyle does not, however, allow the defendant to use
his right to remain silent “as a sword to cut off the prosecution’s ‘fair response’ to the
evidence or argument of the defendant. (United States v. Robinson (1988) 485 U.S. 25,
32 [99 L.Ed.2d 23].)” (People v. Austin (1994) 23 Cal.App.4th 1596, 1612, disapproved
on a different point by People v. Palmer (2001) 24 Cal.4th 856, 861-865.) Thus, Doyle
does not apply to cross-examination that merely inquires into prior inconsistent
statements (Anderson, supra, 447 U.S. at p. 408 [65 L.Ed.2d at p. 226]; People v. Collins
(2010) 49 Cal.4th 175, 203 (Collins)), or to inquiry focused on rebutting a defendant’s
claims, or on a fair response to the defendant’s arguments (see Champion, supra,
134 Cal.App.4th at pp. 1450-1451).
       Cross-Examination of Defendant
       On direct examination, defendant testified that when Tumelson removed the bag
of methamphetamine from his pocket, he told Tumelson he had borrowed the pants. He

                                              6
confirmed this testimony on cross-examination but also testified he did not provide
information on the identity of the owner of the pants. Initially, he testified he did not feel
there was a need to give Tumelson that information. Later he testified, “I was already
under arrest. I figured that I had the choice to stay silent until I talked to a lawyer. I
just -- that was just my first decision.” Defendant complains specifically about the
following portions of cross-examination occurring after that answer:
         “Q    Now, today’s the first law enforcement’s hearing of the name of the person
who owns the pants; is that correct?
         “MR. AHART [defense counsel]: Objection. It calls for speculation, Your Honor.
         “THE COURT: Phrase it differently.
         “MR. POWELL [the prosecutor]: Sure.
         “Q    BY MR. POWELL: Did you ever notify the police of the person who
owned these pants?
         “MR. AHART: Objection, Your Honor. The same issue that we approached on
moments ago.[3]
         “THE COURT: Sustained.
         “Q    BY MR. POWELL: Now, [defendant], how are we going to confirm your
story?
         “MR. AHART: Objection. It’s vague and ambiguous.
         “THE COURT: And argumentative. Sustained.
         “Q    BY MR. POWELL: Now, you were released from custody after you were
arrested on the possession; right?
         “MR. AHART: Objection. Relevance.
         “THE COURT: Overruled.




3   There was an earlier off-the-record discussion that was not reported.

                                               7
       “THE WITNESS: Yes, I was.
       “Q     BY MR. POWELL: And did you then run to the police department and
give them the information?
       “MR. AHART: Objection. Same issue.
       “THE COURT: Sustained.”
              Analysis
       Defendant acknowledges he did not expressly invoke his right to remain silent at
the scene of the arrest but claims his testimony made clear he was relying on that right,
and in spite of that clarity, the prosecutor continued to attempt to elicit testimony on
defendant’s postarrest silence. Given that defendant chose to speak to officers at the
scene and therefore did not remain silent, we cannot find he had implicitly invoked his
Miranda rights. Moreover, where, as here, Miranda warnings have not been given, it is
not a violation of “due process of law for a State to permit cross-examination as to
postarrest silence when a defendant chooses to take the stand.” (Fletcher, supra,
455 U.S. at p. 607 [71 L.Ed.2d at p. 494].) There is no Doyle error. (Delgado, supra,
10 Cal.App.4th at p. 1842.)
       Defendant also claims the prosecutor committed misconduct under Doyle when he
attempted to elicit testimony from defendant that he had never told law enforcement the
identity of the person whose pants he had borrowed, implicitly including his silence after
defendant invoked his Miranda rights.4 But defense counsel objected to each of these
questions and the objections were sustained. In other words, the trial court did not permit
use of defendant’s postarrest silence. Where the trial court does not permit the use of
defendant’s postarrest silence, there is no Doyle violation. (Greer v. Miller (1987)
483 U.S. 756, 764-765 [97 L.Ed.2d 618, 629-630]; People v. Clark (2011) 52 Cal.4th



4 The only indication in the record that defendant invoked his Miranda rights is defense
counsel’s statement at trial.

                                              8
856, 959.) Furthermore, defendant fails to demonstrate that sustaining the objection was
inadequate to remedy any impropriety. (See People v. Tully (2012) 54 Cal.4th 952, 1014
(Tully).)
       Finally, the prosecutor did not refer to defendant’s exercise of his right to remain
silent; he simply asked why, if defendant’s trial testimony were true, he did not identify
the owner of the pants when he was interviewed immediately at the scene. “The
questions were not designed to draw meaning from silence, but to elicit an explanation
for a prior inconsistent statement.” (Anderson, supra, 447 U.S. at p. 409 [65 L.Ed.2d at
p. 227].) Accordingly, Doyle does not apply to the facts of this case. (Anderson, at
p. 409 [65 L.Ed.2d at p. 227].)
       Rebuttal Testimony of Tumelson
       The prosecutor sought to recall Tumelson in rebuttal, and defense counsel
requested an offer of proof. The prosecutor indicated Tumelson would be testifying as to
the reasons he did not further investigate the identity of the owner of the pants. The
prosecutor clarified he did not intend to elicit any statements with respect to defendant’s
right to remain silent. Defense counsel argued that once defendant was arrested, he had
the right to remain silent and his silence could not be used against him. The court noted
there had been no invocation of that right while at the scene, and given defense counsel’s
assertion that Tumelson did not thoroughly investigate defendant’s disclaimer and the
ownership of the pants, evidence of defendant’s postarrest, pre-Miranda silence was
admissible. Defense counsel then argued: “If it goes one step further, I think we have a
very -- a more significant issue . . . because [defendant] invoked his right to remain silent,
and . . . the district attorney should be prohibited from asking those questions.” The court
responded, “I don’t think that’s necessary, but don’t go there, Mr. Powell.” (Italics
added.) The court further advised the prosecutor, “. . . I think both the more persuasive
approach and the one that doesn’t arguably violate right to counsel or right to remain
silent is what was said and done right there at the scene . . . when the defendant had

                                              9
already decided that it was in his own self-interest to tell the officer whose pants they
were to avoid being locked in with the bindle. . . . So I think that’s the approach to take,
not one that arguably violates other rights.”
       In his rebuttal testimony, Tumelson clarified he had not taken further investigative
steps because defendant did not identify the owner of the pants. The pants appeared to fit
defendant and disclaiming ownership of clothing in which contraband is found is a
common occurrence, so Tumelson had no reason to believe the pants belonged to
someone else and discounted defendant’s statement. The prosecutor asked Tumelson,
“Now, did he ever tell you who he had borrowed the pants from when he made that
statement?” Tumelson answered, “He did not.” Although defense counsel did not object,
defendant now claims this question was a “direct violation of the court’s earlier order not
to ‘go there.’ ” As above, defendant’s failure to object forfeits the claim. (Crew, supra,
31 Cal.4th at p. 839.) Moreover, defendant misreads the record. The trial court did not
issue a ruling precluding counsel from asking questions on a “prohibited issue.” In fact,
the trial court expressly declined to do so stating, “I don’t think that’s necessary.” The
subsequent caution to the prosecutor to not “go there” was not an order, ruling, or a
granting of a motion. Indeed, that defense counsel did not object to the question at that
time suggests he did not believe the question violated a court ruling. (See Tully, supra,
54 Cal.4th at p. 1013.)
       Also, as above, the prosecutor’s question makes no reference to defendant’s
exercise of his right to remain silent and was not designed to elicit an inference of guilt
from the invocation of that right. Viewed in its context, the question was part of a series
of questions designed to rebut defendant’s claim that Tumelson’s investigation was
inadequate and cursory. The focus of the prosecutor’s inquiry was not defendant’s
silence as an indicator of guilt, but the reason Tumelson did not further pursue the
ownership of the pants; that is, it rebutted defendant’s attack on Tumelson. This is not



                                                10
Doyle error; it is a fair response to defendant’s claim. (Champion, supra,
134 Cal.App.4th at pp. 1450-1451.)
       Rebuttal Closing Argument
       Defendant also complains that the prosecutor compounded his misconduct by
“revisiting the issue of [defendant’s] post-arrest silence” in closing argument. In closing
argument, defense counsel argued the prosecutor had “tried to hide” information from the
jury by objecting when defense counsel tried to elicit testimony from Tumelson about
whether defendant had told Tumelson the pants were not his. He argued that Tumelson
had not further investigated defendant’s claim by interviewing additional witnesses and
looking at the evidence because he was a biased witness who believed he had enough
evidence against defendant. He also argued the prosecutor could have brought in
additional witnesses, including Branson, to testify whether he had lent defendant the
pants. In response, the prosecutor argued defense counsel, as an experienced attorney,
“knew . . . the only way that he was going to put that statement [from defendant about
having borrowed the pants] in [evidence] is he had to put his client on the stand. [¶] . . .
[¶] And, so, he’s trying to insinuate that I did something wrong [by objecting]. That’s
fine, but why didn’t he tell you the full story? Why didn’t he get up here and tell you
what really happened? . . . [¶] . . . [¶] He also got up here and had the gall, and I say gall,
to tell you the D.A. had all these -- this opportunity to track these witnesses down whose
pants they were. Well, since 11:35 yesterday, those names weren’t known to anyone.”
After clarifying defendant did not have the burden to prove anything, the prosecutor
continued, “[C]ounsel knew that I was going to get up here and ask someone
questions . . . why didn’t he call them, knowing that his client’s testimony was the only
word that he had? Why didn’t he call this witness who gave him the pants? Why didn’t
he call the owner of the pants? . . . [¶] Because, up until yesterday, none of those facts
were known to me. [¶] . . . [¶] The testimony was that the defendant never told anyone
in law enforcement about any of these facts, and the reason he said: Figured I was being

                                              11
arrested, didn’t matter. That was March 3rd, 2010, quite some time ago. None of those
facts were shared.” There was no objection to this argument; as such, defendant’s claim
on appeal is forfeited.5
       Furthermore, as above, “[t]he prosecutor was not taking unfair advantage of
defendant’s exercise of his right to remain silent as substantive evidence that he had a
guilty conscience or was hiding something.” (Champion, supra, 134 Cal.App.4th at
pp. 1450-1451.) Rather, the rebuttal closing argument was in direct response to
defendant’s closing argument that Tumelson was a biased witness who had failed to
properly investigate the case and that the prosecution should have brought in additional
witnesses, including the purported owner of the pants. Once again, this is not Doyle error
but a fair response to defendant’s argument. (Champion, at pp. 1450-1451.)
                                             II
       Defendant claims the prosecutor committed misconduct by disobeying a court
order and eliciting evidence of statements made by defendant to Tumelson admitting he
was a methamphetamine addict. He claims the statements were taken in violation of
Miranda. We find no error.
Additional Background
       The prosecutor sought to rebut defendant’s claim he did not use
methamphetamine, and had never seen it before Tumelson pulled the baggie out of his
pocket, by introducing evidence that subsequent to the arrest, defendant admitted to
Tumelson that he was addicted to methamphetamine. Defense counsel objected to the
admission of these statements, arguing he was unaware of the exact timing and content of
the statements, he did not know if defendant was represented by counsel when the



5 During argument, defense counsel objected, claiming the argument was in violation of
Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106]. This objection was later
withdrawn.

                                            12
statements were made, and admission of the statements could infringe on defendant’s
right to counsel and right to remain silent. The court indicated the prosecutor would need
to establish the conversations were voluntary and not investigatory. Specifically, if
Tumelson were conducting a follow-up interview about the methamphetamine possession
case, then the statements would not be admitted.
       Tumelson testified the first conversation he had with defendant regarding
methamphetamine use was on January 10, 2011. The prosecutor asked Tumelson, “What
were the circumstances surrounding this conversation?” Tumelson answered, “Uh, had
been dispatched to his mother’s residence in Shasta Lake regarding a disturbance and
[defendant’s] behavior at his mother’s residence, and during that contact, uhm, I had the
opportunity to speak with [defendant] regarding his, uhm, argumentative and
confrontational behavior, and he admitted to me that he had a methamphetamine
addiction, and I made suggestions to him at that time that maybe he needed to get into a
drug treatment program so that he would not continue to have the problems that he was
repeatedly having with different people within the community.” Defendant was not in
custody or under arrest at the time of the conversation.
       Tumelson had another contact with defendant regarding methamphetamine in
February 2011. The prosecutor asked about the circumstances surrounding this
conversation. Tumelson replied, “I was standing with [defendant], uhm, while the other
officers were conducting the investigation, and again, while [defendant] was seated in the
back of a patrol car I had asked him if he had gotten a hold [sic] of anybody or looked
into getting into a treatment program.” Defendant was not arrested at the time but was
detained. Tumelson testified he asked the question because he wanted to determine if
defendant had taken steps to seek help. There was no evidence admitted as to
defendant’s response to Tumelson’s question.




                                            13
Analysis
       Although defense counsel made various objections throughout this examination
and testimony on the bases of lack of foundation, Fifth Amendment, Sixth Amendment,
relevance, and Evidence Code section 352, he made no objection on the basis of
prosecutorial misconduct. As above, “trial counsel’s failure to object in a timely manner
to asserted prosecutorial misconduct also results in the forfeiture of the claim on appeal.”
(People v. Dykes (2009) 46 Cal.4th 731, 757.) Moreover, even if the issue was not
forfeited, we find no error.
       To protect the exercise of the privilege against self-incrimination, persons subject
to custodial interrogation must be informed of certain rights, including the right to
counsel, and once such a person invokes the right to counsel, the police must cease
interrogation until counsel is provided or the suspect initiates further contact and makes it
clear that he or she wishes to proceed without counsel. (Miranda, supra, 384 U.S. at
pp. 473-474 [16 L.Ed.2d at p. 723]; Edwards v. Arizona (1981) 451 U.S. 477, 482, 484-
485 [68 L.Ed.2d 378, 384, 386-387]; see also Rhode Island v. Innis (1980) 446 U.S. 291,
293 [64 L.Ed.2d 297, 302-303].) A statement taken in violation of these rules is
inadmissible at trial in the prosecution’s case-in-chief but is admissible to impeach the
defendant’s credibility as a witness, as long as the statement otherwise is voluntary.
(Harris v. New York (1971) 401 U.S. 222, 224-226 [28 L.Ed.2d 1, 4-5]; People v. Peevy
(1998) 17 Cal.4th 1184, 1187-1188; People v. Brown (1996) 42 Cal.App.4th 461, 471-
474.) The impeachment evidence is properly admitted because “[t]he shield provided by
Miranda cannot be perverted into a license to use perjury by way of a defense, free from
the risk of confrontation with prior inconsistent utterances.” (Harris, supra, 401 U.S. at
p. 226 [28 L.Ed.2d at p. 5].)
       A statement is voluntary when it is “the product of a free and deliberate choice
rather than intimidation, coercion, or deception.” (Moran v. Burbine (1986) 475 U.S.
412, 421 [89 L.Ed.2d 410, 421].) As noted by the Attorney General, there is only one

                                             14
statement at issue here, defendant’s January 2011 admission that he was a
methamphetamine addict. No other statements by defendant were admitted into
evidence. Defendant was not in custody during this conversation with Tumelson and
there is no suggestion in this record that Tumelson resorted to any physical or
psychological pressure, improper interrogation tactics, lengthy questioning, or
intimidation to obtain defendant’s statements. (Ibid.; Colorado v. Connelly (1986)
479 U.S. 157, 170 [93 L.Ed.2d 473, 486]; Fare v. Michael C. (1979) 442 U.S. 707, 726-
727 [61 L.Ed.2d 197, 213-214].) Accordingly, we find the statement was voluntary.
       As a voluntary statement, defendant’s statement was admissible as impeachment
evidence. Defendant testified he had never used methamphetamine and had seen it only
on television shows. His January 2011 voluntary statement to Tumelson admitting he
was addicted to methamphetamine was admissible to impeach that testimony. Eliciting
this admissible testimony was not prosecutorial misconduct.
       We have rejected all of defendant’s claims of prosecutorial misconduct.
Accordingly, we also reject his “claim that the cumulative impact of the alleged
misconduct resulted in prejudice and deprived him of a fair trial.” (Collins, supra,
49 Cal.4th at p. 208.)
                                     DISPOSITION
       The judgment is affirmed.


                                                           RAYE              , P. J.

We concur:


      NICHOLSON             , J.


      DUARTE                , J.



                                            15
