What is the test for calling a prosecutor a "nut job" or "creepy" in a sexual assault case?

"When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred, keeping in mind that ' "[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom" ' (People v. Sims (1993) 5 Cal.4th 405, 463...), and that the prosecutor 'may "vigorously argue his case, "... "[using]

Page 46

appropriate epithets warranted by the evidence." ' (People v. Fosselman (1983) 33 Cal.3d 572, 580....)" (People v. Welch (1999) 20 Cal.4th 701, 752-753.) We do not think that use of the terms "nut job" or "creepy" constituted misconduct in light of the evidence. Even if use of those terms crossed the line, no prejudice has been shown in light of the judge's admonishment and instruction to the jury and the record as a whole.

b. Arguing Facts Not in Evidence