Can a prosecutor appeal to the jury's passions and prejudices?

Even if the prosecutor's arguments in this case might be interpreted as an improper appeal to the jury's passions and prejudices, they could not, by themselves, have unduly persuaded the jury. The prosecutor's comments about the nature of the community in which the shootings took place were based on the evidence presented at trial. When defense counsel objected to the prosecutor's comment that the jury should send a message, the court informed the jurors they were " the judges of the facts, and it's your decision as to what the facts are as they may apply to the elements of the offenses." The prosecutor's remarks following this admonition did not repeat the challenged argument. Both defense counsel expressly and forcibly responded to the prosecutor's comments in their closing arguments. Before deliberations the court instructed the jury it "must not be influenced by pity for or prejudice against a defendant," or "by sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." "[W]e presume the jury relied on the instructions, not the arguments, in convicting defendant[s]." (People v. Morales (2001) 25 Cal.4th 34, 47.) Nothing in the record indicates the jurors did anything other than focus on the evidence and the court's instructions in reaching their verdicts. Viewing the prosecutor's comments in context, and in their entirety, we do not believe "there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (Id. at p. 44.)¹³

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