Does a prosecutor's argument to the jury that society "cries out for the death penalty" mislead the jury?

Defendant further contends the prosecutor's argument left jurors with the impression they were "duty bound" by their oaths to vote for a death sentence.¹⁹ The prosecutor argued to the jury: "This is a case where society cries out for the death penalty. As jurors, you are... the conscience of society." But the prosecutor's argument was nothing more than reasonable commentary on the evidence presented and a call to vote for death based on that evidence; she did not mislead the jury about its role. (See, e.g., People v. Young (2005) 34 Cal.4th 1149, 1222 [rejecting a challenge where the prosecutor "urged the jury to impose the death penalty because it would be 'good for society' and 'teach' society a moral lesson"]; People v. Marlow (2004) 34 Cal.4th 131, 152 [prosecutor's argument that the defendant's conduct had " 'crossed the line' 'where we as a

Page 47

society say enough' " was proper argument based on reasonable inferences from the method of killing]; People v. Hardy (1992) 2 Cal.4th 86, 211 [prosecutor's argument that the jury "was 'obligated as members of this society...' to return a death verdict if it found the aggravating evidence outweighed the mitigating evidence," in conjunction with the jury instructions, did not mislead the jury about the scope of its sentencing discretion].) Moreover, to refer to the jury as the conscience of society is not improper. (See People v. Ledesma (2006) 39 Cal.4th 641, 741.)