California, United States of America
The following excerpt is from People v. Xicotencatl, G056045 (Cal. App. 2019):
Xicotencatl argues the use of the term "tiebreaker" diluted the prosecution's burden to prove guilt beyond a reasonable doubt because it suggested the prosecution need only prove guilt by a preponderance of the evidence since a "tie" is 50-50. We address this claim in light of the fact that "[t]he decision of how to argue to the jury after the presentation of evidence is inherently tactical," (People v. Freeman (1994) 8 Cal.4th 450, 498), and thus, "[r]eversals for ineffective assistance of counsel during closing argument rarely occur" (People v. Moore (1988) 201 Cal.App.3d 51, 57). We will not reverse a conviction for ineffective assistance on direct appeal unless "(1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or
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omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
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