Defendant, intoxicated by PCP, was found sitting in the opening of the sliding door of a van and a vial of PCP was found under the driver’s seat. The police did not know who owned the van or who had driven it to the police station. The defense contended that the prosecutor’s closing argument had permitted the jury to convict on an incorrect legal theory: that being under the influence of a drug was by itself proof of past possession of the drug. The court distinguished between jury instructions on an incorrect legal theory and simple prosecutorial misconduct in misstating some law. The Court held that the misconduct was waived by failure to object to the prosecutorial misconduct. Moreover, even if considered on its merits, the argument failed. Although the question of whether misconduct occurred was close, when viewed in context, the prosecutor was arguing that the jury could deduce that defendant voluntarily ingested PCP whether or not he drew it from the vial. The Court also rejected a claim that it was improper to use evidence of use to prove possession, as long as there was sufficient proof of the elements of possession. (4-3) [Editor’s note: This case contains two interesting footnotes. One notes the possibility that 97 percent of all paper money circulating in the U.S. has been contaminated by cocaine (fn. 5). The other states that jury instructions, whether published or not, are not themselves the law and are not authority to establish legal propositions. They should not be cited in appellate opinions as authority for legal principles (fn. 7).] The dissent all agreed misconduct occurred, but Kennard, J. agreed that an objection was necessary. Brown, J. joined by Werdegar, J., opined this was a case of legal error, not prosecutorial misconduct, and thus no objection was needed.