California, United States of America
The following excerpt is from People v. Ochoa, No. G041693 (Cal. App. 4/6/2010), No. G041693. (Cal. App. 2010):
"Generally, a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor's misconduct. [Citations.]" (People v. Ledesma (2006) 39 Cal.4th 641, 726.) "[T]he initial question to be decided in all cases in which a defendant complains of prosecutorial misconduct for the first time on appeal is whether a timely objection and admonition would have cured the harm. If it would, the contention must be rejected [citation]; if it would not, the court must then and only then reach the issue whether on the whole record the harm resulted in a miscarriage of justice within the meaning of the Constitution." (People v. Green (1980) 27 Cal.3d 1, 34.)
Here defendant did object, but he does not cite us to any record reference showing he requested an admonition. Nor does he argue in his brief that an admonition would not have cured any prejudice. While we do not find there was misconduct, we are satisfied that an admonition by the court would have cured any perceived harm. Accordingly, his claim of prosecutorial misconduct is not cognizable on appeal. (People v. Smith (2003) 30 Cal.4th 581, 633.)
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