What is the test for a claim of prosecutorial misconduct?

We begin by finding that defendant has waived the claim. "As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety." (People v. Samayoa (1997) 15 Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.) Although defendant made an assignment of misconduct and suggested that the trial court hold the prosecutor in contempt, he did not request an admonition. Because an admonition would have cured any prejudice from the alleged misconduct, he cannot raise this claim on appeal. (People v. Silva (2001) 25 Cal.4th 345, 373, 106 Cal.Rptr.2d 93, 21 P.3d 769.)

Defendant's claim of prosecutorial misconduct also fails on the merits. "`A prosecutor's ... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct "so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process."'" (People v. Gionis (1995) 9 Cal.4th 1196, 1214, 40 Cal.Rptr.2d 456, 892 P.2d 1199.) "`Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves "`"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'"'" (People v. Ochoa (1998) 19 Cal.4th 353, 427, 79 Cal.Rptr.2d 408, 966 P.2d 442.) Finally, "when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Samayoa, supra, 15 Cal.4th at p. 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.)