When will a defendant's claim of prosecutorial misconduct be forfeited?

As defendant acknowledges, his trial counsel failed to object to this alleged misconduct and seek an admonition during trial. The record fails to disclose grounds for applying any exception to the general rule requiring both an objection and a request for a curative instruction to avoid forfeiture of the argument. (People v. Linton (2013) 56 Cal.4th 1146, 1205 ["[a] failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm"].) Although the prosecutor generically commented that defendant was "still running" and not accepting responsibility for his actions, the prosecutor did not reference defendant's not guilty plea or decision to proceed to trial. This is not the type of serious misconduct that would render a curative admission ineffective. (See U.S. v. Smith (11th Cir. 1991) 934 F.2d 270, 275 [although the prosecutor improperly remarked that the defendant " 'has not taken responsibility for his actions' " because he refused to plead guilty, unlike his codefendants who entered guilty pleas, the error was harmless because the trial court gave a "clear and complete instruction to the jury immediately after the improper comment," and there was "ample evidence" to support the conviction].) We therefore agree with the People that defendant's claim of prosecutorial misconduct was forfeited.

In a related argument, defendant contends that his trial counsel was ineffective for failing to object and request an appropriate admonition. We reject defendant's claim because he has failed to establish prejudice. (See People v. Mai, supra, 57 Cal.4th at p. 1009 [to establish a claim of ineffective assistance of counsel, a defendant must prove that (1) trial counsel's representation was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficiency

Page 8

resulted in prejudice to defendant, meaning there is a "reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different"]; see also Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.)