When will a defendant lose his right to an objection when the prosecutor makes a reference to the Bible during his second penalty phase argument?

We agree with the People that defendant forfeited this issue by failing to object at trial. (People v. Wrest (1992) 3 Cal.4th 1088, 1105, 13 Cal.Rptr.2d 511, 839 P.2d 1020.) Defendant had reason to anticipate that the prosecutor would refer to the Bible during his argument to the second penalty phase jury, because the prosecutor had made similar biblical references during his argument to the first penalty phase jury. And yet defendant did not seek to prevent the prosecutor from repeating these remarks at the second penalty phase (see People v. Marshall (1996) 13 Cal.4th 799, 854-855, 55 Cal.Rptr.2d 347, 919 P.2d 1280 ["the trial court retains discretion ... to ensure that argument does not stray unduly from the mark"]), and did not object when the prosecutor again referred to the Bible during argument.

Defendant asserts that trial counsel was ineffective for failing to object. The record on appeal does not disclose defense counsel's reason for not objecting, and we are not convinced that there could be no valid tactical reason for choosing not to object. Defense counsel may have reasonably chosen not to object so that he could respond, as he did, by reminding the jury of the biblical proscription, "Thou shalt not kill." "[Competent counsel may often choose to forgo even a valid objection. `[I]n the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. The choice of when to object is inherently a matter of trial tactics not ordinarily reviewable on appeal.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1197, 96 Cal. Rptr.2d 1, 998 P.2d 969.)

We also note that the trial took place before we rendered our decision in People v. Wrest, supra, 3 Cal.4th 1088, 1107, 13 Cal.Rptr.2d 511, 839 P.2d 1020, in which we clearly condemned the practice of making such biblical references. "Our review [of counsel's conduct] is deferential; we make every effort to avoid the distorting

[120 Cal.Rptr.2d 494]

effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 541, 71 Cal. Rptr.2d 680, 950 P.2d 1035, italics added.) The record on appeal does not establish that defense counsel's conduct fell below the standard expected of reasonably competent counsel at the time of trial.

[120 Cal.Rptr.2d 494]