I concur in the judgment. After review, I have found no reversible error or other defect.
I also largely concur in the opinion prepared for the court by Justice Baxter. But I cannot join in its broad absolution of the prosecutor against defendant’s claim of misconduct.
In his summation at the penalty phase, the prosecutor improperly attacked an instruction on “lingering doubt” that the superior court intended to, and did in fact, give the jury. The instruction was this: “It is appropriate for the jury to consider in mitigation any lingering doubt it may have concerning defendant’s guilt. Lingering or residual doubt is defined as that state of mind between beyond a reasonable doubt and beyond all possible doubt.” (Paragraphing omitted.) The prosecutor’s attack was as follows: “You may consider this in mitigation in the penalty phase. Now, I don’t understand that really. You’re asked to determine whether or not the defendant is guilty beyond a reasonable doubt, not beyond all imaginary doubt, but beyond a reasonable doubt. You did not have to consider an area above that. Since you did not have to consider an area above that, it’s beyond me how anyone *195could have any lingering doubt that’s defined as existing above a reasonable doubt.” (Paragraphing omitted.) This comment is unambiguous: It challenges the very notion of “lingering doubt” as a matter of law; it does not merely question its applicability on the evidence adduced at trial. Even if it could be deemed ambiguous, it is reasonably likely to have been understood by the jury as indicated above. (See People v. Clair (1992) 2 Cal.4th 629, 662-663[7 Cal.Rptr.2d 564, 828 P.2d 705].) Surely, the words do not readily allow an inference that “the prosecutor sought only to persuade the jurors that little room remained for ‘lingering’ doubt.” (Maj. opn., ante, at p. 183, italics added.)
Also in his summation at the penalty phase, the prosecutor improperly used for its truth a statement defendant had made to Albert Globus, M.D., a defense psychiatrist, that “he feels like he will die or be killed or commit suicide or kill somebody else within five years.” The prosecutor asked the jury, “based on the expression of . . . opinions” by defense experts that defendant would not be dangerous in prison, “in light of the defendant’s statement that he will kill within five years, ... are you willing to risk the numerous correctional officers’ safety, all the lay people in prison, the social workers, the ministers, everyone else? Are you willing to take that risk based on these opinions in light of the defendant’s statement of what he intends to do?” (Paragraphing omitted.) Even if it could be deemed ambiguous, it is reasonably likely to have been understood by the jury to employ defendant’s statement for a substantive purpose—i.e., to prove the “risk” he posed in prison—and not merely for impeachment—i.e., to attack the soundness of his experts’ contrary views. I cannot agree that “the prosecutor took care to argue only that the statement undermined the reliability of assessments by defense experts that defendant presented no danger in confinement,” or that “[t]he prosecutor never suggested that the statement should be considered directly as evidence that defendant would kill in prison.” (Maj. opn., ante, at p. 185, italics added.)
Be that as it may, the prosecutor’s misconduct does not require reversal. Neither does any other defect. Accordingly, I concur in the judgment.
Appellant’s petition for a rehearing was denied July 10, 1996.