In what circumstances will a prosecutor be found guilty of misconduct by failing to notify the jury of the improper definition of malice?

In addition, appellants argue the prosecutor committed misconduct when she argued the improper definition of malice. (People v. Hill, supra, 17 Cal.4th at p. 829.) "'"It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion"--and on the same ground--"he made an assignment of misconduct and requested that the jury be admonished to

Page 24

disregard the impropriety."'" (People v. Berryman (1993) 6 Cal.4th 1048, 1072 disapproved on another point in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.)