iLaw Dictionary			USAConstitution Law
						California			Law Students-USL
						Law Dictionary			BankruptcyCode.US
						Prosecutorial Misconduct			United States Law.US

A Legal and Business Portal
Yaazoo!

iLaw Dictionary
California
Law Dictionary
Prosecutorial Misconduct
 

Prosecutorial Misconduct

4.    Prosecutorial Misconduct      Hidden

Defendant contends his convictions should be reversed because the prosecutor committed
misconduct when she implied to the jury that she was precluded from presenting certain evidence in rebuttal.  Like the trial court, we reject his contention.

          a.         Facts

After the defense rested, the prosecutor informed the court out of the presence of the jury that she intended to recall Detective Hopley.  Defendant objected, and the trial court, after hearing the offer of proof, excluded the proffered testimony.  The prosecutor then indicated that she had no other rebuttal witnesses.  When the jury returned, the trial court informed the jury that there would be no rebuttal and asked the prosecutor, “[d]o you have any other witnesses you wish to present?”  The prosecutor replied, “[o]nly Detective Hopley, your honor.  I have no other witnesses.”  Defendant then moved for a mistrial and argued that the prosecutor’s reference to Detective Hopley constituted reversible misconduct.  The prosecutor responded that she was surprised by the court’s question and did not intend to mislead the jury.  The trial court denied defendant’s motion for a mistrial and refused to cite the prosecutor for contempt.

          b.         Discussion

We begin by finding that defendant has waived the claim.  “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.”  (People v. Samayoa (1997) 15 Cal.4th 795, 841.)  Although defendant made an assignment of misconduct and suggested that the trial court hold the prosecutor in contempt, he did not request an admonition.  Because an admonition would have cured any prejudice from the alleged misconduct, he cannot raise this claim on appeal.  (People v. Silva (2001) 25 Cal.4th 345, 373.)

Defendant’s claim of prosecutorial misconduct also fails on the merits.  “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ”  (People v. Gionis (1995) 9 Cal.4th 1196, 1214.)  “ ‘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 court or the jury.” ’ ” ’ ”  (People v. Ochoa (1998) 19 Cal.4th 353, 427.)  Finally, “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.”  (People v. Samayoa, supra, 15 Cal.4th at p. 841.)

Here, the prosecutor’s brief reference to an excluded witness in response to an unexpected question did not constitute an egregious pattern of misconduct and did not infect the trial with unfairness.  (See People v. Gionis, supra, 9 Cal.4th at p. 1214.)  Even assuming the alleged misconduct involved the use of “ ‘ “ ‘ “deceptive or reprehensible methods.” ’ ” ’ ”  (People v. Ochoa, supra, 19 Cal.4th at p. 427), there appears to be no reasonable likelihood that the jury applied the prosecutor’s inadvertent remark “in an objectionable fashion,” and nothing in the record suggests otherwise (People v. Samayoa, supra, 15 Cal.4th at p. 841).  Accordingly, defendant’s claim of prosecutorial misconduct fails.

CRIMINAL LAW & PROCEDURE, SENTENCING

PEOPLE v. PRIETO, No. S027555 (Cal. April 21, 2003)
On automatic appeal after imposition of death sentence, forcible
rape, robbery, firearm, murder convictions, and imposition of death
sentence are affirmed on all counts, except that a serious felony
enhancement is struck and abstract of judgment is amended to reflect
a sentence of life with the possibility of parole as to three
counts.

To read the full text of this opinion, go to:
http://caselaw.findlaw.com/data2/californiastatecases/s027555.doc
[PDF File]
http://caselaw.findlaw.com/data2/californiastatecases/s027555.pdf
iLawDictionary.Com
PEOPLE v. PRIETO, No. S027555 (Cal. April 21, 2003-html-ild)
PEOPLE v. PRIETO, No. S027555 (Cal. April 21, 2003-pdf-ild)
CaliforniaCivilProcedure.Com
PEOPLE v. PRIETO, No. S027555 (Cal. April 21, 2003-ccp)

Thomas - Legislative Information on the Internet | Check Your Credit Score
Directory of Medical Dictionaries: Table of Contents | California Injury (Torts) Law
USA Entertainment.US | FederalCriminalProcedure.Com |
FederalCriminalProcedure.Com | iLaw Dictionary.Com |  Library of Congress
United States Law Consumer Law TITLE PAGE | USA Entertainment.US
iBusiness Center.US | United States Law: Constitutional Law: Constitutions of  The World: TITLE PAGE
California Contracts Law.Com | California Injury (Torts) Law
Phone Directories From Around the World New | California Law Revision Commission 
California Civil Procedure.Com | Federal Civil Procedure.Com
Yaazoo!