Is a defendant excused from his failure to object and request admonitions?

California, United States of America


The following excerpt is from People v. Flores, F069504 (Cal. App. 2016):

Defendant further asserts that he should be excused from his failure to object and request admonitions because "immediately after the prosecutor spoke, the 'damage was done' such that 'an admonition would not have cured the harm caused by the misconduct.' " " 'A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. [Citations.] In addition, failure to request the jury be admonished does not forfeit the issue for appeal if " 'an admonition would not have cured the harm caused by the misconduct.' " [Citation.] Finally, the absence of a request for a curative admonition does not forfeit the issue for appeal if "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." ' [Citation.]" (People v. Seumanu, supra, 61 Cal.4th at pp. 1328-1329.)

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