Is there any evidence of misconduct or misconduct by a prosecutor in a criminal case?

The People deny that misconduct is revealed by the quoted record and claim, furthermore, that any error by the prosecutor was waived by failure to object. (People v. Green (1980) 27 Cal.3d 1, 34, 164 Cal.Rptr. 1, 609 P.2d [45 Cal.3d 245] 468.) Defendant counters that, inasmuch as the court sua sponte raised the issue of the impropriety of suggesting that defense counsel fabricated a defense, any failure to object was cured--that is, the court had an opportunity to correct the misconduct and failed to do so.

Even if we concluded that the contemporaneous-objection requirement is satisfied here, defendant's claim would fail. Prosecutorial misconduct is cause for reversal only when it is "reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment attacked by the defendant." (People v. Beivelman (1968) 70 Cal.2d 60, 75, 73 Cal.Rptr. [753 P.2d 681] 521, 447 P.2d 913.) The prosecutor's comment contained no more than a hint that the defense was fabricated with the assistance of counsel. The trial court, with first hand knowledge of the circumstances under which the comment was made, expressly found that "if it was error or misconduct, it was not harmful in this case." We agree with that assessment.