What is the test for a claim of prosecutorial misconduct?

On appeal, a defendant may not complain of prosecutorial misconduct unless he objected to the misconduct in the court below and asked that the jury be admonished to disregard the impropriety. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If no objection was made, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. (Id. at pp. 1000-1001.)

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In this case, any harm caused by the alleged misconduct could have easily been cured by an appropriate admonition. However, Liwanag made no objection to the prosecutor's remarks and thus has waived his claim. "His appeal is foreclosed on that basis." (People v. Morales (2001) 25 Cal.4th 34, 44.) Moreover, even if the claim had not been waived, it would lack merit.

"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales, supra, 25 Cal.4th at p. 44.)

Applying these standards here, when viewed in the context of defense counsel's argument and the entire rebuttal argument, the prosecutor's comment cannot reasonably be construed as urging the jury to convict before deliberating. While any prosecutor who explains the presumption of innocence and the standard of proof beyond a reasonable doubt to a jury in a way that blurs either principle is courting reversible error, in this case there is no "reasonable likelihood that the jury construed or applied . . . the complained-of remarks" in the manner urged by Liwanag. (People v. Morales, supra, 25 Cal.4th at p. 44.)