What is the test for a defendant to bring a claim of misconduct based on the prosecutor's comments before the jury?

California, United States of America


The following excerpt is from People v. Robles, 2d Crim. No. B290555 (Cal. App. 2019):

Where, as here, the defendant's claims of misconduct are based on the prosecutor's comments before the jury, "the defendant must show that, 'in the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.]'" (People v. Centeno (2014) 60 Cal.4th 659, 667, alterations omitted.) We will not "'"lightly infer"'" that the jury did so. (Ibid.) Rather, we presume that the jury "'drew . . . the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (Ibid.) No misconduct occurred if the jury would have understood the

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statements to "imply nothing harmful." (People v. Woods (2006) 146 Cal.App.4th 106, 111.)

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