Can a defendant bring a claim of ineffective assistance of counsel rather than prosecutorial misconduct?

California, United States of America


The following excerpt is from People v. Griffin, C075293 (Cal. App. 2015):

Griffin raises the claim here as one of ineffective assistance of counsel, rather than prosecutorial misconduct, because his trial counsel failed to object to the prosecutor's argument. " 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]' " (People v. Hill, supra, 17 Cal.4th at p., 820.)

A defendant seeking to reverse a conviction by asserting a claim of ineffective assistance of counsel must show first that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and second a reasonable probability that "but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 [80 L.Ed.2d 674, 693, 698].)

We will not reverse Griffin's conviction because, even if we assume that the prosecutor committed misconduct under People v. Hill and defense counsel was deficient by failing to object to the prosecutor's argument, it is not reasonably probable that the result would have been more favorable to him if his trial court had objected.

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