People v. Crayton

DRAPER, P. J.

A jury found defendant guilty of sale of heroin (Health & Saf. Code, § 11501). He ivas sentenced to prison, and appeals from the judgment.

Error is asserted only in claimed misconduct of the prosecutor. We find no merit in these claims.

In his opening argument, the deputy district attorney twice said “we rely upon the testimony” of the officer who, as an undercover agent, purchased the heroin from defendant. The statement was made after elements of the crime had been outlined, and the prosecutor had asked “What is it that we rely upon to establish these things to your satisfaction ? ’ ’ Obviously, he was not asserting a personal belief in the reliability of the witness, which is proscribed

(People

v.

Perez,

58 Cal.2d 229, 245 [23 Cal.Rptr. 569, 373 P.2d 617]). Rather, he was legitimately explaining the burden of the prosecution, and indicating the evidence offered to meet that burden. There ivas no misconduct

(People

v.

White,

212 Cal.App.2d 464, 465 [28 Cal.Rptr.67]).

At the close of his opening argument, the prosecutor said, “there is a lot more that I Avant to say but I must be restricted. ” Of course, an assertion that the People had evidence not produced at trial Avould be improper

(People

v.

Beal,

116 Cal.App.2d 475 [254 P.2d 100]). The questioned statement contained no such assertion. The argument as a Avholc emphasized that the jury could consider only the evidence. In this context, it is apparent that the prosecutor considered himself “restricted” as to time, rather than content of his argument. Counsel's failure to object indi

[866]

cates that he took the same view at that time. If there be error, it could have been corrected by admonition. Thus the failure to object bars raising the issue on appeal