How have the courts treated the allegations of misconduct in a prosecutor's summation?

Without contradiction by defendant, respondent has identified some 11 instances in defendant's list that occurred out of the presence of the jury or at sidebar, as well as approximately nine instances where the trial court sustained objections made on other grounds to allegedly improper questions or remarks, or told the jury to disregard them. Misconduct which occurs outside the presence of the jury and improper questions to which objections have been sustained are not generally prejudicial. (People v. Peoples, supra, 62 Cal.4th at pp. 793-794.)

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The prosecutor's summation did of course occur in the presence of the jury, and there was one sustained objection among the 15 alleged instances of misconduct. Defendant has cited authority supporting the general propositions that it is improper for the prosecutor to attempt to elicit sympathy for the victim, to personally vouch for a witness's credibility, to misstate the presumption of innocence, and to comment on facts not in evidence,⁶ and defendant has argued that the prosecutor's comments were improper under these authorities. However, defendant has not met his burden to show that, "'[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] . . . .'" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) This was a 10-day trial. Instructions and arguments took up nearly an entire day, with the prosecutor's arguments accounting for almost a third of the time. Defendant has not attempted to discuss any of the allegedly improper comments in the context of the prosecutor's lengthy final argument as a whole or in the context of the trial court's instructions.

Regarding instructions, defendant merely argues that sometimes jurors do not follow instructions, citing Parker v. Randolph (1979) 442 U.S. 62, 70, which held that such a risk is great when powerfully incriminating extrajudicial statements of codefendant are admitted. Counsel's arguments are not powerfully incriminating evidence; and as the jury was instructed here, they are not evidence at all. Further, "arguments of counsel

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'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.' [Citation.]" (People v. Mendoza (2007) 42 Cal.4th 686, 703, quoting Boyde v. California (1990) 494 U.S. 370, 384.) Here, both before opening statements and before closing arguments, the trial court instructed the jury in relevant part as follows:

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In addition, both before opening statements and closing arguments, the trial court instructed the jury regarding the presumption of innocence and the prosecution's burden of proof. We presume that the jurors followed their instructions. (People v. Peoples, supra, 62 Cal.4th at pp. 798-799.)