In what circumstances will a prosecutor be found guilty of misconduct for making an argument to the jury that the jury must convict a defendant of second-degree murder before it returns a verdict on a charge of first degree murder?

The prosecutor's argument was, at worst, ambiguous. The statements "[y]ou have to find him not guilty," "you have to decide," and "you have to acquit him of first degree murder" (italics added) permissibly suggested the jury had to return a verdict on first degree murder before it returned a verdict on second degree murder. The words "before you even get to second degree murder" arguably could have been construed to refer to consideration of second degree murder during deliberations. (See generally People v. Perez (1989) 212 Cal.App.3d 395, 399-400.) But when a claim of misconduct is based on the prosecutor's comments before the jury, we consider the complained-of remarks as a whole and do not lightly infer that the jury drew the most, rather than the least, damaging meaning from them. (People v. Covarrubias, supra, 1 Cal.5th at p. 894.)