California, United States of America
The following excerpt is from People v. Cohen, H043490 (Cal. App. 2018):
Defendants next complain the prosecutor's argument misstated the elements of first degree murder. The prosecutor told the jury, "It has to be deliberate, which means you weigh the considerations. Now, a lot of people talk aboutit's somebody did it withit was premeditated and with deliberation. Deliberating is what you folks are going to do. Deliberately is what you intended to do. You did it on purpose. So deliberation has absolutely nothing to do with first degree murder." Viewed in isolation, the statement "deliberation has absolutely nothing to do with first degree murder" is clearly incorrect. Deliberation has much to do with first degree murder since that offense is defined as a killing done "willfully, deliberately and with premeditation." (CALCRIM No. 521.) Taken as a whole though, the prosecutor's argument did not suggest that the jury need not find defendants acted deliberately to convict them of first degree murder. Rather, the prosecutor seemed to be saying that "deliberately" is something of a redundancy since it would be difficult for one to act with premeditation yet not deliberately. Perhaps it was not articulated as the prosecutor had envisioned, but it was not improper to argue that if the jury found defendants acted with premeditation it necessarily must find they acted deliberately. And we are confident that the outcome of the trial was not affected by confusion about the meaning of "deliberately:" during deliberations the jury sent a question asking for clarification of that definition, and the trial court appropriately responded, "The definition of 'deliberately' as used in Instruction 521 [for first degree murder] is contained in that instruction." At most the prosecutor's argument was confusing, but any confusion was remedied by the court's response to the jury's question. There was no prejudice to defendants from the lack of objection to the argument and we reject defendants' ineffective assistance of counsel claim premised on that decision. (See also People v. Riel (2000) 22 Cal.4th 1153, 1202-1203 ["Whether to object at trial is among 'the minute to minute and second to second strategic and tactical
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