People v. Smith CA4/1

DISCUSSION

I. Prosecutorial Misconduct

A. General Legal Principles

Under California law, a prosecutor who uses deceptive or reprehensible

methods to persuade a jury has committed misconduct, even if such action does not

render the trial fundamentally unfair. (People v. Frye (1998) 18 Cal.4th 894, 969.)

"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the

defendant must show a reasonable likelihood the jury understood or applied the

complained-of comments in an improper or erroneous manner. [Citations.] In

conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging

rather than the least damaging meaning from the prosecutor's statements. [Citation.]"

(Id. at p. 970.) We do not look to isolated words or phrases, "we must view the

statements in the context of the argument as a whole." (People v. Dennis (1998)

Cal.4th 468, 522.) "[E]ven otherwise prejudicial prosecutorial argument[s], when

3 made within proper limits in rebuttal to arguments of defense counsel, do not

constitute misconduct." (People v. McDaniel (1976) 16 Cal.3d 156, 177.)

B. First Incident

1. Facts

Defendants both argued to…