In People v. Green (1980) 27 Cal.3d 1, defendant instructed an acquaintance to call his (defendant's) wife and falsely tell her that defendant needed to retrieve his belongings from the home of his wife's sister, and that the acquaintance would give the wife a ride to the sister's house. (Green at pp. 13-14.) The wife agreed, and she willingly entered the vehicle of defendant's acquaintance. (Id. at p. 14.) The acquaintance did not take the wife to her sister's house, and instead took her to another home, where defendant entered the car and took her to another location and murdered her. (Id. at pp. 62-63.) The Supreme Court held that the acquaintance's initial asportation of the wife to where defendant was waiting did not constitute kidnapping, because "asportation by fraud alone," in the absence of any use of force or fear, did not constitute a general kidnapping offense in California. (Id. at pp. 64-65.) The prosecutor concluded his argument by stating to the jury, "'I appreciate your attention, your being here, and I ask you to consider carefully all of that evidence, the instructions, and reach a fair, just, honest conclusion. I'm convinced in my mind it will be the same conclusion I reached several months ago.'" (People v. Green, supra, 27 Cal.3d at p. 35.) In determining that the statement did not refer to evidence outside of that adduced at trial and did not constitute misconduct, the court reviewed the remark in the context of the prosecutor's entire argument. The court noted that immediately before the statement, the prosecutor had referred directly to the evidence. (Id. at p. 36.) Further, "throughout his argument, the district attorney repeatedly emphasized to the jurors that any opinion he expressed to them concerning defendant's guilt was based on the evidence and legitimate inferences therefrom, and he reminded them again and again that they were the sole judges of the facts and their verdict must be based on their own conclusion as to the evidence." (Id. at pp. 35-36.) The California Supreme Court affirmed the defendant's conviction of premeditated murder, but reversed the jury's finding, under the 1977 death penalty statute, of a robbery-murder special circumstance, which was based on the defendant's taking of the victim's clothes, purse, and rings in order to thwart identification of the body. (Id. at p. 55.) While finding the evidence sufficient to support the defendant's conviction for robbery (id. at pp. 56-59), the high court found it insufficient to establish, as required by statute for a felony-murder special circumstance, that the murder was committed "during the commission" of the underlying felony. (Id. at p. 59.) Instead, the court found, the case involved "the exact opposite, a robbery in the commission of a murder." (Id. at p. 60.) The court reasoned that the Legislature, in enacting the death penalty statute, "must have intended that each special circumstance provide a rational basis for distinguishing between those murderers who deserve to be considered for the death penalty and those who do not" (id. at p. 61), and that the purpose of the special circumstance was to single out those "defendants who killed in cold blood in order to advance an independent felonious purpose" (ibid.). It found that "the Legislature's goal is not achieved ... when the defendant's intent is not to steal but to kill and the robbery is merely incidental to the murder ... because its sole object is to facilitate or conceal the primary crime." (Ibid.) The court concluded that when, "in the course of committing a first degree murder the defendant happens to engage in ancillary conduct that technically constitutes robbery or one of the other statutorily enumerated felonies ... such a crime is not a murder committed 'during the commission' of" a felony within the meaning of the special circumstance statute. (Id. at pp. 61-62.) The Supreme Court subsequently explained, however, "that when the defendant has an independent purpose for the commission of the felony, and it is not simply incidental to the intended murder, Green is inapplicable." (People v. Clark (1990) 50 Cal.3d 583, 608, citing People v. Robertson (1982) 33 Cal.3d 21, 51-52.) In People v. Green (1980) the People sought introduction of the victim's statement to her friend that when she told defendant she intended to have their marriage annulled, he threatened to kill her if she did. (Green, supra, 27 Cal.3d. at p. 23.) This evidence was offered, not to prove that defendant actually threatened the victim, but as circumstantial evidence of the victim's fear of defendant to prove that she did not willingly go with him or engage in sex with him. (Ibid.) The California Supreme Court noted, "When offered for such purpose the statement was simply not hearsay. . . . The writers have long pointed out the distinction between (1) using an out-of-court declarant's assertion of his state of mind (e.g., A testifies that he heard the declarant B say, 'I am afraid of C') to prove that mental state directly, and (2) using his assertion of other facts (e.g., A testifies that he heard B say, 'C threatened to kill me') to prove the same mental state indirectly. The first is hearsay because it is used testimonially, i.e., it is offered for the purpose of inducing the trier of fact to believe in the truth of the assertion itself, just as if the declarant had so testified on the witness stand. The second is not hearsay because it is used circumstantially, i.e., it is offered as evidence of conduct on the part of the declarant (B reported that C threatened to kill him) from which the trier of fact is asked to draw an inference as to the declarant's state of mind at the time (B fears C)." (Id. at pp. 23-24, fn. 9.) The California Supreme Court held that if a defendant does not object to alleged prosecutorial misconduct, he is deemed to have waived the objection and the point cannot be raised on appeal, the reason being, of course, that the trial court must be given an opportunity to correct the abuse and, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury. If the defendant complains of prosecutorial misconduct for the first time on appeal, the question is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected. If it would not, "... the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution." ( Green, supra , p. 34.) One of the reasons why the court rejected instruction on the absence of flight was that there was inadequate evidence of absence of flight by the defendant. (Id. at p. 36.) Even though in the instant case defendant testified as to why he did not ultimately leave, such testimony was not conclusive and there remained other plausible reasons why he did not leave: "Evidence that a suspect did not flee when he had the chance was of little value as tending to prove innocence because there are plausible reasons why a guilty person might also refrain from flight: 'He may very naturally have been deterred from making an effort to escape from a fear that he would be recaptured, and that his fruitless attempt to escape would be evidence of guilt; or he may have felt so strong a confidence of his acquittal, for want of the requisite proof of his guilt, that he deemed it unnecessary to flee.'" (Id. at p. 37) In Green, supra, 27 Cal.3d 1, the court also noted that evidence of the absence of flight has been held to be inadmissible under Evidence Code section 352 as so ambiguous and laden with conflicting interpretations that its probative value on the issue of innocence is slight. (Id. at p. 39.) The Green court concluded that, even though there was evidence presented to show the absence of flight, the court was not required to instruct on the absence of flight because "the instruction would have injected a new issue into the jury's deliberations and invited the kind of speculation that the Montgomery rule seeks to avoid. We conclude that the trial court did not err in refusing to give the proffered instruction." (Ibid..) The court in Green further noted that, although many of the same criticisms raised in excluding instruction on the absence of guilt equally apply to instruction on flight, the prosecution is entitled to a flight instruction, not merely because evidence of flight is free of ambiguities or will not confuse the jury, but under statutory law, section 1127c, a flight instruction, is mandatory when supported by the record. Such is not the case with regard to the absence of flight. (Green, supra, 27 Cal.3d at pp. 39-40, fn. 26.)