Is a defense counsel deficient in failing to object to the prosecutor's comments as a misstatement of the law?

California, United States of America


The following excerpt is from People v. Alvarez, H042446 (Cal. App. 2018):

Defense counsel was not deficient in failing to object to the prosecutor's comments as a misstatement of law. Contrary to defendant's contention, we do not construe the prosecutor's comments as an argument regarding unanimity. The prosecutor never mentioned the unanimity requirement in his comments. Rather, the prosecutor explained that defendant put his fingers inside Doe's genital opening and inside her anal opening, and that "either of those acts constitute sexual penetration with a child." The prosecutor's comments correctly advised the jury that sexual penetration, for purposes of section 288.7, is accomplished by penetration of either the genital opening or the anal opening. (See 289, subd. (k)(1) [sexual penetration is penetration "of the genital or anal opening"].) Defense counsel was not deficient in failing to object to the prosecutor's comments as a misstatement of the unanimity requirement. (See People v. Beasley (2003) 105 Cal.App.4th 1078, 1092 ["failure to make a futile or unmeritorious objection is not deficient performance"].)

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