prosecutorial misconduct claim in California

2023(People v. Crew (2003) 31 Cal.4th 822, 839 (Crew); People v. Bell (1989) 49 Cal.3d 502, 534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo).) If the prosecutorial misconduct or error renders the defendant’s trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct or error is harmless beyond a reasonable doubt.

2016Moreover, viewing the challenged statements in context, we do not believe there is a reasonable likelihood that the jury understood him to be making such an argument."].) Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct or error does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct or error. ( Bell, supra, 49 Cal.3d at pp. 534, 542; 6 People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Cr

2023(People v. Crew (2003) 31 Cal.4th 822, 839 (Crew); People v. Bell (1989) 49 Cal.3d 502, 534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo).) If the prosecutorial misconduct or error renders the defendant’s trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct or error is harmless beyond a reasonable doubt.

2016Moreover, viewing the challenged statements in context, we do not believe there is a reasonable likelihood that the jury understood him to be making such an argument."].) Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct or error does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct or error. ( Bell, supra, 49 Cal.3d at pp. 534, 542; 6 People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Cr

2023(People v. Crew (2003) 31 Cal.4th 822, 839 (Crew); People v. Bell (1989) 49 Cal.3d 502, 534, 542 (Bell); People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo).) If the prosecutorial misconduct or error renders the defendant’s trial fundamentally unfair under the federal Constitution, reversal of the judgment is required unless the misconduct or error is harmless beyond a reasonable doubt.

2016Moreover, viewing the challenged statements in context, we do not believe there is a reasonable likelihood that the jury understood him to be making such an argument."].) Absent a fundamentally unfair trial under the federal Constitution, prosecutorial misconduct or error does not require reversal of the judgment unless it was prejudicial under state law, i.e., it is reasonably probable the defendant would have obtained a more favorable verdict absent the misconduct or error. ( Bell, supra, 49 Cal.3d at pp. 534, 542; 6 People v. Castillo (2008) 168 Cal.App.4th 364, 386 (Castillo); People v. Cr

2025(See People v. Ervine (2009) 47 Cal.4th 745, 806 .) “‘A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.’” (People v. Hill (1998) 17 Cal.4th 800, 819-820 .) However, “‘the term prosecutorial “misconduct” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind.

2024(See People v. Ervine (2009) 47 Cal.4th 745, 806 .) “‘A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.’” (People v. Hill (1998) 17 Cal.4th 800, 819-820 .) However, “‘the term prosecutorial “misconduct” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind.

2025(See People v. Martinez (2010) 47 Cal.4th 911, 958 [a prosecutorial misconduct claim based on claimed references to punishment during closing argument was forfeited for failure to object].) Gray has not persuaded us that an objection would have been futile, or that the prosecutor’s argument was “so extreme or pervasive that a prompt objection and admonition would not have cured the harm.” (Centeno, supra, 60 Cal.4th at p. 674 .) Gray’s contention is therefore forfeited.

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2023Legal Standards “Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ (Darden v. Wainwright (1986) 477 U.S. 168, 181 .)” (People v. Davis (2009) 46 Cal.4th 539, 612 .) “ ‘[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ ” (People v. Dworak (2021) 11 Cal.5th 881, 914 [regarding a prosecutorial misconduct claim].) “By contrast, our state law requi

2020(See People v. Price (1991) 1 Cal.4th 324, 447 [without a request for a curative admonition, “the point is reviewable only if an admonition would not have cured the harm caused by the misconduct”].) With respect to the second asserted basis of this prosecutorial misconduct claim, while Reyes did not use the phrase “prosecutorial misconduct,” we conclude the substance of his objection and argument on the mistrial motion would have apprised the trial court he was asserting such a claim.

2015(People v. Scott (1997) 15 Cal.4th 1188, 1218 .) “It is misconduct for a prosecutor to ask a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means.” (People v. Price (1991) 1 Cal.4th 324, 481 .) If a prosecutorial misconduct claim is based on the prosecutor’s arguments to the jury, we consider whether, considering the challenged statements in the context of the argument as a whole, there is a reasonable likelihood that the jury construed or ap

2015(People v. Scott (1997) 15 Cal.4th 1188, 1217 [(Scott)].)” (People v. Crew (2003) 31 Cal.4th 822, 839 (Crew).) Here, defendant did not object on any ground to the portion of the prosecutor’s closing argument regarding the standard of proof or assert a prosecutorial misconduct claim.

2007A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. ( People v. Dennis (1998) 17 Cal.4th 468, 522 , 71 Cal. Rptr.2d 680 , 950 P.2d 1035 .) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, the issue becomes how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. ( People v. Benson (1990) 52 Cal.3d 754, 793 , 276 Cal.Rptr. 827 , 802 P.2d 330 .) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful (Ibid.) The prosecut

2007A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. ( People v. Dennis (1998) 17 Cal.4th 468, 522 , 71 Cal. Rptr.2d 680 , 950 P.2d 1035 .) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, the issue becomes how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. ( People v. Benson (1990) 52 Cal.3d 754, 793 , 276 Cal.Rptr. 827 , 802 P.2d 330 .) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful (Ibid.) The prosecut

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2024(People v. Seumanu (2015) 61 Cal.4th 1293, 1328 ; see People v. Ghobrial (2018) 5 Cal.5th 250 , 289–290 (Ghobrial).) “ ‘ “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the 108 PEOPLE v. NADEY Opinion of the Court by Corrigan, J. harmful effect upon the minds of the jury.’ ” ’ ” (Peoples, supra, 62 Cal.4th at p. 801 .) Failure to raise a timely objection and request an admonition will be excused only “ ‘if doing either would have been futile, or if an admonition would not

2022Whether the alleged error in the prosecutor’s argument affected Vega’s “substantial rights” is immaterial to the forfeiture of a prosecutorial misconduct claim; that exception applies only to instructional error. (§ 1259.) Vega relies on the federal “plain error” doctrine (e.g., U.S. v. Combs (9th Cir. 2004) 379 F.3d 564, 568, 572 ) but cites no authority for the proposition that the federal “plain error” standard for avoiding forfeiture applies to prosecutorial misconduct claims in California state sanity trials.

2022Whether the alleged error in the prosecutor’s argument affected Vega’s “substantial rights” is immaterial to the forfeiture of a prosecutorial misconduct claim; that exception applies only to instructional error. (§ 1259.) Vega relies on the federal “plain error” doctrine (e.g., U.S. v. Combs (9th Cir. 2004) 379 F.3d 564, 568, 572 ) but cites no authority for the proposition that the federal “plain error” standard for avoiding forfeiture applies to prosecutorial misconduct claims in California state sanity trials.

2022(People v. Valdez (2004) 32 Cal.4th 73, 124-125 (Valdez) [prosecutorial misconduct claim forfeited where counsel rejected curative admonition after witness improperly referred to defendant’s “custodial status”].) 7. fleeting references to a defendant’s past criminality to be curable by appropriate admonition to the jury.” (People v. Franklin (2016) 248 Cal.App.4th 938, 955 .) This case is no exception. iii.

2022(People v. Valdez (2004) 32 Cal.4th 73, 124-125 (Valdez) [prosecutorial misconduct claim forfeited where counsel rejected curative admonition after witness improperly referred to defendant’s “custodial status”].) 7.

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2020(Id. at p. 207.) And they may not appeal to the jury’s passion or prejudices: “It is, of course, improper to make arguments to the jury that give it the impression that ‘emotion may reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.’ ” (People v. Redd (2010) 48 Cal.4th 691, 742 (Redd).) “To preserve a prosecutorial misconduct claim for appeal, the defendant ‘ “must make a timely and specific objection and ask the trial court to 13 admonish the jury to d

2020(Id. at p. 207.) And they may not appeal to the jury’s passion or prejudices: “It is, of course, improper to make arguments to the jury that give it the impression that ‘emotion may reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that diverts the jury's attention from its proper role, or invites an irrational, purely subjective response.’ ” (People v. Redd (2010) 48 Cal.4th 691, 742 (Redd).) “To preserve a prosecutorial misconduct claim for appeal, the defendant ‘ “must make a timely and specific objection and ask the trial court to 13 admonish the jury to d

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2019(See Quinn, supra , 728 F.3d at p. 263 [circuit court declined to consider whether there was a strong countervailing interest because defendant failed to show the witness's testimony was "clearly exculpatory"].) As we have discussed ante , what the defense hoped to gain by cross-examining Chatman at trial was at best speculative and not clearly exculpatory nor essential.

2019(See Quinn, supra, 728 F.3d at p. 263 [circuit court declined to consider whether there was a strong countervailing interest because defendant failed to show the witness’s testimony was “clearly exculpatory”].) As we have discussed ante, what the defense hoped to gain by cross-examining Chatman at trial was at best speculative and not clearly exculpatory nor essential.

2026(People v. Hill (1998) 17 Cal.4th 800, 820 .) Defendant’s failure to object that the prosecutor was making an improper guilt by association argument deprived the trial court of the opportunity to rule on that issue and the claim is forfeited on appeal.

2015The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ . . . ‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian politeness’ ” [citation], and he may “use appropriate epithets . . . .” ’ ” [Citation.] ’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819 .) When a prosecutorial misconduct claim focuses on comments the prosecutor made before the jury, “the 128 question is whether there is a reasonable likelihood that the jury construed or a

2023(Castillo, at pp. 386–387; People v. Bordelon (2008) 162 Cal.App.4th 1311 , 1323–1324.) D We conclude that Michael and Matthew waived or forfeited their claim of prosecutorial misconduct regarding the prosecutor’s display during his opening statement of a slide bearing the words “felons in possession” adjacent to their photographs because they did not timely object to that display and request a curative admonition.

2016(Castillo, at pp. 386-387, fn. 9; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324 .) B The trial court instructed the jury on first and second degree murder and voluntary manslaughter based on a theory of heat of passion.

2007A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. ( People v. Dennis (1998) 17 Cal.4th 468, 522 , 71 Cal. Rptr.2d 680 , 950 P.2d 1035 .) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, the issue becomes how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. ( People v. Benson (1990) 52 Cal.3d 754, 793 , 276 Cal.Rptr. 827 , 802 P.2d 330 .) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful (Ibid.) The prosecut

2007A prosecutor may fairly comment on and argue any reasonable inferences from the evidence. ( People v. Dennis (1998) 17 Cal.4th 468, 522 , 71 Cal. Rptr.2d 680 , 950 P.2d 1035 .) If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, the issue becomes how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. ( People v. Benson (1990) 52 Cal.3d 754, 793 , 276 Cal.Rptr. 827 , 802 P.2d 330 .) No misconduct exists if a juror would have taken the statement to state or imply nothing harmful (Ibid.) The prosecut

2023(See People v. Rivera (2019) 7 Cal.5th 306, 335 [prosecutor’s error was harmless under either standard where there was strong evidence of guilt and the jury was instructed that attorneys’ statements were not evidence]; People v. Jasso (2012) 211 Cal.App.4th 1354, 1372 [prosecutor’s error was harmless where there was strong evidence of guilt].) Although we expect greater care in the preparation of closing arguments, reversal is not warranted because the prosecutor’s error here was harmless under either the Chapman or Watson standard.4 4 Having addressed the prosecutorial misconduct claim on its

2022On the 4On the other hand, Vega’s claim of misconduct based on disparaging defense experts is unfounded. “ ‘Argument may not denigrate the integrity of opposing counsel, but harsh and colorful attacks on the credibility of opposing witnesses are permissible.’ ” ( Rivera, supra, 7 Cal.5th at pp. 334–335.) Besides, the prosecutor’s comments about Drs.

2021(People v. Jackson (2016) 1 Cal.5th 269, 367 [“A defendant’s ‘failure to object and request an admonition waives a misconduct claim on appeal unless an objection would have been futile or an admonition ineffective’”].) Defendant seeks to avoid the waiver in three ways.

2020(Ibid,) “ ‘A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674 .) To prevail on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms and those deficiencies resulted in a “reasonable probability that, but for counsel's unprofessional

2021As noted above, when a prosecutorial misconduct claim “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. Samayoa, supra, 15 Cal.4th at p. 841 .) 62.

2013(People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).) " ' " '[A] prosecutor is given wide latitude during argument.