What is the legal basis for a defense counsel's misstatement in their opening statement causing a mistrial?

Furthermore, any prejudice was cured by the trial court's instructions to the jury to not consider the opening statements as evidence. Before opening statements, the court instructed the jury twice that it "must use only the evidence that is presented" to decide the case and that the attorney's "opening statements and their closing arguments . . . are not evidence." The court reminded the jury before deliberations to decide the case "based only on the evidence that was presented to you in this trial" and that the opening statement was not evidence. We presume the jury understood and followed these instructions. (People v. Cline (1998) 60 Cal.App.4th 1327, 1336.)

Ledesma relies on People v. Coleman (1992) 9 Cal.App.4th 493, 497, in which a defense counsel's misstatement during his opening statement constituted legal necessity for a mistrial. There, defense counsel stated during his opening statement that the defendant committed manslaughter and not second degree murder as charged because the defendant pointed a gun and shot the victim in self-defense. (Id. at p. 495.) The defendant filed a Marsden³ motion to substitute counsel and asserted that counsel had misstated his defense because he never

Page 9