People v. Vance

[1188]

Opinion

RICHMAN, J.

There is a tactic of advocacy, universally condemned across the nation, commonly known as “The Golden Rule” argument. In its. criminal variation, a prosecutor invites the jury to put itself in the victim’s position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury’s natural sympathy for the victim. (See

People

v.

Lopez

(2008) 42 Cal.4th 960, 969-970 [71 Cal.Rptr.3d 253, 175 P.3d 4], and decisions cited.)

A jury found defendant Andrew James Vance guilty of first degree murder, without special circumstances, following which he was sentenced to state prison for the term prescribed by law. He contends he is entitled to reversal by reason of (1) numerous instances of misconduct by the prosecutor; (2) erroneous admission of a postarrest confession elicited in violation of

Miranda v. Arizona

(1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]; and (3) the jury improperly learning that he had been incarcerated in San Quentin. We conclude that the prosecutor made a sustained Golden Rule closing argument so blatant that it alone requires reversal, particularly when conjoined with improper references to what was in plain effect victim impact evidence, and a snide and utterly unwarranted attack on defense counsel’s valiant attempts to halt the flood of misconduct. An unfortunate factor in aggravation was the trial court’s refusal to give the admonition requested by the defense. Given the peculiar balance of the sole evidentiary point submitted to the jury—defendant’s intent—we conclude the misconduct qualifies as prejudicial, requiring reversal.

In light of this conclusion, all but one of defendant’s remaining contentions need not be addressed because they involve matters unlikely to recur at a retrial. The one contention we do address is defendant’s claim of

Miranda

error, which we conclude is without merit.