Does a prosecutor's statement that "torture is not used as a legal term" constitute a denial of due process?

Defendant has waived any objection to the prosecutor's second statement, beginning with "[t]orture is not used as a legal term . . ." for failing to make a timely objection. (People v. Kipp (2001) 26 Cal. 4th 1100, 1130.) As to the first statement, which was objected to on the basis that it assumes facts not in evidence, we do not find it so egregious as to constitute a denial of due process. Further, we do not simply infer, as defendant asks us to, the most damaging interpretation of the prosecutor's statement. We cannot conclude, based on this single use of the term torture, that the jury was so inflamed by passion or prejudice to find the defendant guilty. Indeed, the fact that he was found guilty of voluntary manslaughter, rather than intentional murder, suggests there

Page 15

was no likelihood the jury took the complained-of remark literally. (See People v. Smithey (1999) 20 Cal.4th 936, 960.) This is not the "close case" defendant believes it is. Accordingly, we find no error.