What is the test for a claim of ineffective assistance on the basis of failing to lodge a contemporaneous objection and a request for an admonition?

Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct unless a defendant affirmatively establishes that it was irremediable with more than a "ritual incantation" to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant cannot hope to establish that the remark at issue constituted irremediable misconduct.

Page 18

Defendant's attempt to reach the issue under the guise of ineffective assistance of trial counsel fails in two regards. In the first place, direct appeal is almost inevitably the inappropriate forum for establishing that the inherently tactical choice of failing to raise an objection to misconduct in closing argument fell below reasonable professional standards. (People v. Lopez (2008) 42 Cal.4th 960, 966, 972.) In the second place, defendant does not provide anything more than a perfunctory analysis of how the failure to object did not meet objective professional standards or resulted in the necessary prejudice, without any consideration of the remainder of closing argument or the instructions. "This will not suffice." (People v. Mitchell (2008) 164 Cal.App.4th 442, 466-467 [rejecting claim of ineffective assistance on this basis].)

In casting the issue as a failure on the part of the trial court to satisfy a duty to address misconduct sua sponte, defendant stands precedent on its head. People v. Ponce (1996) 44 Cal.App.4th 1380, while speaking in terms of "duty," was in fact a situation in which the trial court took action to address factually unsupported argument on the part of defense counsel under its discretionary powers to ensure the orderly administration of justice. (Id. at pp. 1387-1388.) Nothing in the case imposes a duty on a trial court to address purported misconduct in argument sua sponte.