How have courts dealt with a motion for a mistrial based on prosecutorial misconduct?

At the outset, we note that defense counsel did not object to the prosecutor's elicitation of the contested evidence on the grounds now challenged on appeal. "A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety." (People v. Thornton

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(2007) 41 Cal.4th 391, 454.) Arguably, because defense counsel did not request an admonition to the jury, defendant has not preserved the issue for review on appeal. (People v. Frye (1998) 18 Cal.4th 894, 969-970 ["to preserve a claim of prosecutorial misconduct, the defense must make a timely objection and request an admonition to cure any harm"].)

Defendant asserts that an objection and admonition would have been futile. But the same claim could be made whenever an attorney fails to object. Defendant's "ritual incantation" that the futility exception applies is insufficient to preserve his claims for appellate review. (People v. Panah (2005) 35 Cal.4th 395, 462.)

Even if the issue has been preserved for review on appeal, the trial court did not abuse its discretion in denying the motion for mistrial based on prosecutorial misconduct. We conclude the conduct complained of did not amount to prosecutorial misconduct. "'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.'" (People v. Chatman (2006) 38 Cal.4th 344, 379-380.)