Does the Attorney General have to explain why counsel did not object to a prosecutor's misstatement that a defendant was guilty of only second degree murder?

California, United States of America


The following excerpt is from People v. Saner, A159086 (Cal. App. 2021):

Here, the record is silent as to why defense counsel did not object to the prosecutor's misstatement. The defense theory was that defendant was guilty of only manslaughter either because he was unconscious or because he acted in an objectively reasonable heat of passion, while the prosecution's theory was that defendant was guilty of first degree murder. As the Attorney General suggests, defense counsel may have refrained from objecting because he did not want to highlight the prosecutor's argument or the theory defendant might be guilty of second degree murder. (See People v. Wharton, supra, 53 Cal.3d at p. 567 ["counsel might not have wanted to highlight the point with the jury"].) Weighing the potential downside of highlighting second degree murder against the need for the jury to be correctly educated

on the law, counsel reasonably may have decided not to object because the jury instructions were correct and complete and the jury was specifically told to follow the jury instructions rather than attorney comments.

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