California, United States of America
The following excerpt is from People v. Rivera, F066130 (Cal. App. 2015):
for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (People v. Panah, supra, 35 Cal.4th at p. 462.)
When a defendant has preserved the issue, "the reviewing court must determine first whether misconduct has occurred, keeping in mind that '"[t]he prosecution has broad discretion to state its views as to what the evidence shows and what inferences may be drawn therefrom"' [citation], and that the prosecutor 'may "vigorously argue his case" ..., "[using] appropriate epithets warranted by the evidence."' [Citation.] Second, if misconduct ha[s] occurred, we determine whether" it was prejudicial under the applicable standard. (People v. Welch (1999) 20 Cal.4th 701, 752-753.)
"A defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel. The appellate record, however, rarely shows that the failure to object was the result of counsel's incompetence; generally, such claims are more appropriately litigated on habeas corpus, which allows for an evidentiary hearing where the reasons for defense counsel's actions or omissions can be explored. [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.) "'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.]'" (Ibid.)
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