How have courts dealt with a claim of ineffective assistance of counsel?

People v. McDowell (2012) 54 Cal.4th 395, 436 [despite its forfeiture "we choose to discuss the merits of defendant's claim that the prosecutor misstated the process for determining punishment"]), because ineffective assistance of counsel claims either are or likely will be raised, resulting in the same inquiry as if an objection had been interposed. A "defendant whose counsel did not object at trial to alleged prosecutorial misconduct [may] argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel." (People v. Lopez (2008) 42 Cal.4th 960, 966.) Defendant presents an ineffective assistance of counsel claim here. We will therefore address the claim on its merits and apply a gloss of ineffective assistance of counsel analysis to determine whether defendant is entitled to a remedy.

The law of prosecutorial misconduct, in the face of a claim of misconduct under the federal Constitution or state law, is well-settled. " ' "When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated." ' [Citations.] ' "Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury." [Citation.]' " (People v. Shazier (2014) 60 Cal.4th 109, 127.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, defendant must show a reasonable likelihood that the comments caused the jury to act improperly or erroneously. (See ibid.)