How have courts treated a claim of ineffective assistance against a prosecutor?

Defendant contends the prosecutor committed misconduct and violated his Fourteenth Amendment right to due process by misstating the law and reducing the People's burden of proving each element of the offenses beyond a reasonable doubt. To preserve a claim of prosecutorial misconduct, trial counsel must make a timely objection on the same ground and request that the jury be admonished to disregard the impropriety. (People v. Thornton (2007) 41 Cal.4th 391, 454.) Trial counsel made no objection here, so this contention is forfeited.

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Defendant contends that if he forfeited his misconduct argument, his counsel was ineffective for not objecting. Defendant's trial counsel was not deficient, because the prosecutor's argument was not misconduct. (See Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693] [first prong of an ineffective assistance claim is deficient performance].)

"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. 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." (People v. Panah (2005) 35 Cal.4th 395, 462.) In Panah, the "[d]efendant contend[ed] that the prosecutor improperly appealed to the prejudices and passions of the jury, and denigrated the presumption of innocence, when he argued that the prosecution's evidence had 'stripped away' defendant's presumption of innocence." (Id. at p. 463.) Our Supreme Court "disagree[d]. '[T]he prosecutor has a wide-ranging right to discuss the case in closing argument. He has the right to fully state his views as to what the evidence shows and to urge whatever conclusions he deems proper.' [Citation.] Here, the prosecutor's references to the presumption of innocence were made in connection with his general point that, in his view, the evidence, to which he had just referred at length, proved defendant's guilt beyond a reasonable doubt, i.e., the evidence overcame the presumption." (Ibid.)