Is a prosecutor wrongfully told the jury that, if they believed the defense evidence as it relates to first degree felony murder, the only option would be to set him free without considering other crimes?

California, United States of America


The following excerpt is from People v. Combs, 101 P.3d 1007, 22 Cal.Rptr.3d 61, 34 Cal.4th 821 (Cal. 2004):

Focusing on the last sentence above, defendant argues that the prosecutor incorrectly told the jury that, if they believed the defense evidence as it relates to first degree felony murder, the only option would be to set him free without considering how the evidence related to other crimes. Defendant contends that this misstatement of the law constituted prosecutorial misconduct, violating his right to due process. However, defense counsel did not object to the challenged statement or request an admonition. Because an objection and admonition could have cured any harm, the contention is not cognizable on appeal. (People v. Maury, supra, 30 Cal.4th at p. 418, 133 Cal. Rptr.2d 561, 68 P.3d 1.)

In any event, we would not be required to reverse defendant's conviction on the alleged basis. Viewing the prosecutor's comments in the context of the argument as a whole, we do not find it reasonably likely that the jury would have construed or applied the complained-of remarks in an objectionable manner. (People v. Samayoa (1997) 15 Cal.4th 795, 841, 64 Cal. Rptr.2d 400, 938 P.2d 2.)

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