How have courts dealt with allegations of prosecutorial misconduct where a prosecutor in a sexual assault case made a brief, isolated comment on the absence of a plausible defense?

Appellant claims the above two sets of comments constituted prosecutorial misconduct. The claim is unavailing. Appellant failed to object on the ground of prosecutorial misconduct and request a jury admonition with respect to either set of comments, and a jury admonition would have cured any harm. Appellant waived the issue of whether the comments constituted misconduct. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Mincey (1992) 2 Cal.4th 408, 471.)

Even if the misconduct issues were preserved for appellate review, no prejudicial prosecutorial misconduct occurred from these brief, isolated comments on the absence of a plausible defense. (Cf. People v. Cunningham (2001) 25 Cal.4th 926, 1002-1003 [no prejudicial prosecutorial misconduct where prosecutor commented the job of defense counsel was to create straw men and put up smoke and red herrings]; People v. Medina (1995) 11 Cal.4th 694, 759-760 [no prejudicial prosecutorial misconduct where prosecutor asked the jury to "do the right thing, to do justice, not for our society, necessarily or exclusively, but for [the 18-year-old victim employee]."].) No violation of appellant's constitutional rights occurred.⁵

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The judgment is affirmed.