People v. Powell CA3

DISCUSSION

I. The Claim of Prosecutorial Misconduct Is Forfeited

Defendant asserts the prosecutor committed misconduct in closing argument in several respects. In connection with the option of voluntary manslaughter, he purportedly misstated the prosecution’s burden of proof of the absence of heat of passion, the nature of the objective element of heat of passion, the basis of provocation being in either words or acts, and the need to find a lack of intent to kill. Defendant also argues the prosecutor improperly asserted that a verdict of voluntary manslaughter would result in defendant being “cut loose.” He admits his trial counsel did not object to any of these comments,

3 making the customary claim that there could not have been any reasonable tactical basis for this failure to object, particularly during the rebuttal argument.

Failure to lodge a contemporaneous objection and a request for an admonition forfeits any claim of prosecutorial misconduct, except where a defendant affirmatively establishes that it was irremediable or it was futile to object, with more than a “ritual[ized] incantation” to this effect. (People v. Panah (2005) 35 Cal.4th 395, 462.) Defendant does…