People v. Song CA2/8

DISCUSSION

1. The Prosecutor’s Conduct During Voir Dire Defendant contends the prosecutor committed misconduct during voir dire by using improper questions regarding certain legal

3 principles to precondition the prospective jurors to return a verdict of guilt. A claim of prosecutorial misconduct is forfeited by a defendant’s failure to “ ‘make a timely and specific objection to the alleged misconduct and request the jury be admonished to disregard it.’ [Citation.] ‘A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile.’ ” (People v. Peoples (2016) 62 Cal.4th 718, 797.) Here, the prosecutor began her questioning of the jury panel by discussing the burden of proof and raising a hypothetical about the reasonable doubt standard. Using various similar phrases, she asked the panel if they would follow the reasonable doubt standard or expect to be 100 percent certain before voting for guilt. The prosecutor then moved on to discussing the difference between direct and circumstantial evidence. After the prosecutor had received responses from several prospective jurors, defense counsel asked if they could…