Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE605213.
McAdams, J.
Defendant Douglas Dane Scott appeals from a judgment of conviction on two criminal counts, which followed a jury trial held in March 2007. The jury found defendant guilty of attempted second-degree robbery, as charged in the first count. (Pen. Code, §§ 211, 212.5, subd. (c), 664.) As to the second count, the jury acquitted defendant of a charge of battery, but it convicted him on the lesser included offense of misdemeanor assault. (§§ 240, 241, subd. (a).)
Unspecified statutory references are to the Penal Code.
On appeal, defendant asserts prosecutorial misconduct, based on a single comment made by the prosecutor in closing argument, which concerned the burden of proof beyond a reasonable doubt.
We find no basis for reversal. We therefore affirm the judgment of conviction.
FACTUAL AND PROCEDURAL HISTORY
On June 24, 2006, two boys, Antonio and Jacob, were riding their bicycles near their homes in Sunnyvale. Antonio was 10 years old at the time, and his friend Jacob was 12.
The boys rode past defendant, who demanded Antonio’s bicycle. When the boys did not stop, defendant chased them and attempted to grab Antonio’s bicycle. The boys were frightened and rode their bicycles home, where they alerted family members about the incident.
Several adult relatives went outside, where they located defendant nearby. One of Jacob’s uncles, David, ended up in a physical altercation with defendant. Law enforcement officers arrived shortly thereafter.
Charges
In June 2006, the People filed a felony complaint against defendant. Count 1 charged him with attempted second-degree robbery in connection with his attempt to take Antonio’s bicycle. (§§ 211, 212.5, subd. (c), 664.) Count 2 charged defendant with misdemeanor battery arising out of his confrontation with David, Jacob’s uncle. (§§ 242, 243, subd. (a).)
The following month, the court conducted a preliminary examination. Antonio, Jacob, and David testified. At the conclusion of the hearing, defendant was bound over for trial.
A felony information against defendant was filed shortly thereafter, which included the same two charges as the complaint.
Trial
In March 2007, trial proceedings began.
Prosecution Evidence
The prosecution’s first witness was Antonio. He recounted the incident from the previous summer. As he and Jacob were riding home on their bicycles, they “got chased.” Defendant was the one who chased them. Antonio was “100% sure” in his identification. Just before he starting chasing them, defendant yelled: “Give me that fucking bike.” He also said: “I’m not playing around.” During the chase, defendant got to within three or four feet of Antonio and tried to grab his bike. Antonio was frightened, fearing that defendant would grab or kidnap him.
The prosecution also called Jacob as a witness. Like Antonio, Jacob identified defendant as the man who had chased them the previous summer and demanded their bicycles.
David also testified. Upon hearing about the boys’ encounter with defendant, David and his brother Manuel left to look for him, each in his own vehicle. Antonio’s mother Alysia was with them. They found defendant nearby. David identified defendant as the man he encountered. (Manuel and Alysia likewise made in-court identifications of defendant.) David believed that defendant was “under the influence of drugs or alcohol” and he suggested just calling the police. As David was leaving in his car, defendant hit it with his fist and then started chasing it. David pulled over and got out. Defendant continued running “full force” toward David, then “charged” and “struck” him. Defending himself from defendant, David “tripped him up and put him to the ground.” After letting defendant up, David was “backing up” and walking away when “the police rounded the corner.”
Defense Case
The defense presented evidence, including defendant’s testimony. Defendant testified that he never chased two boys riding bicycles in Sunnyvale. He never attempted to take bicycles or anything else from anyone on June 24, 2006. He was never confronted by any adult males or other individuals.
Argument and Instruction
On March 16th, the jury heard instructions and closing arguments. Among other things, the jury was instructed on the standard of proof beyond a reasonable doubt.
In closing arguments, both sides argued the question of identification. Both sides also discussed the standard of proof beyond a reasonable doubt. In rebuttal, the prosecutor agreed with defense counsel that proof beyond a reasonable doubt “is the most important premise of our criminal justice system and something that I welcome as a prosecutor, because [counsel] is correct. We don’t want to convict an innocent person. That’s not your job as jurors. But reasonable doubt is not some mythical, unobtainable standard that makes it impossible to convict the guilty when the guilty are clearly the defendants before you in court. [¶] Reasonable doubt is reached every single day in courtrooms all across this country by jurors just like yourselves when they hear evidence such as this.” That statement drew an objection from defense counsel, who objected “to the district attorney demeaning the burden of proof by comparing it to other situations for which we have no facts before this Court.” The court overruled the objection, but instructed the prosecutor to “move on.”
Deliberation and Verdict
The case was placed in the jurors’ hands on March 16th, late in the afternoon. The jury returned with a verdict in the middle of the afternoon on the next court day, March 19th. It found defendant guilty as charged on the first count, attempted second degree robbery. As to the second count, the jury convicted defendant on the lesser included offense of misdemeanor assault.
Sentencing
The court conducted a sentencing hearing on April 19, 2007. The court suspended imposition of sentence, granting five years of formal probation. It ordered defendant to serve eight months in county jail, with 114 days of custody credits.
Appeal
Defendant brought this timely appeal. As noted above, he asserts prejudicial prosecutorial misconduct based on the above-quoted statement, made during closing argument, to which he objected.
DISCUSSION
To establish the proper framework for assessing defendant’s contention, we begin by setting forth the legal principles that guide our analysis. We then apply those principles to the record before us.
I. Legal Principles
A. Misconduct
“Prosecutorial misconduct implies a deceptive or reprehensible method of persuading the court or jury.” (People v. Price (1991) 1 Cal.4th 324, 448.) Although prosecutors are given “wide latitude” in arguing their cases, they nevertheless “are held to an elevated standard of conduct.” (People v. Hill (1998) 17 Cal.4th 800, 819 .) The imposition of this higher standard is justified by their “unique function … in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.) Among other things, it is “improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.” (Id. at pp. 829-830, internal quotation marks omitted.)
B. Prejudice Requirement
To warrant reversal, the challenged conduct must be prejudicial.
“What is crucial to a claim of prosecutorial misconduct is … the potential injury to the defendant.” (People v. Benson (1990) 52 Cal.3d 754, 793.) When the claim “focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841; People v. Morales (2001) 25 Cal.4th 34, 44.) To answer that question, we examine the prosecutor’s statement in the context of the whole record, including jury instructions. (People v. Hill, supra, 17 Cal.4th at p. 832.) “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.” (People v. Frye (1998) 18 Cal.4th 894, 970.)
Where the jury has been properly instructed, a prosecutor’s misstatement of the law generally will be considered harmless. (People v. Mendoza (2000) 24 Cal.4th 130, 173 [“the ‘court’s instructions, not the prosecution’s argument, are determinative’ ”].)
C. Federal Constitutional Standards
“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales, supra, 25 Cal.4th at p. 44; see People v. Hill, supra, 17 Cal.4th at p. 819.)
In such cases, we apply the Chapman standard on appeal and we decide whether the error is harmless beyond a reasonable doubt. (See People v. Estrada (1998) 63 Cal.App.4th 1090, 1106-1107, citing Chapman v. California (1967) 386 U.S. 18, 24.)
D. State Standards
“Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales, supra, 25 Cal.4th at p. 44; People v. Hill, supra, 17 Cal.4th at p. 819.)
In such cases, we apply our state’s Watson standard on appeal to determine if there is a reasonable probability of a different result. (See People v. Espinoza (1992) 3 Cal.4th 806, 820-821, citing People v. Watson (1956) 46 Cal.2d 818, 835.) Under that standard, “a miscarriage of justice has occurred when the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict.” (People v. Wagner (1975) 13 Cal.3d 612, 621.)
II. Analysis
Defendant makes a single claim of prosecutorial misconduct, based on this statement in the prosecutor’s closing argument: “Reasonable doubt is reached every single day in courtrooms all across this country by jurors just like yourselves when they hear evidence such as this.” According to defendant, that argument “unfairly lessened the burden of proof.” Defendant further contends that the misconduct was prejudicial, because the evidence against him “was not overwhelming, and without improper argument, there is a reasonable probability that he would have been acquitted, or, at a minimum, hung the jury.” As we now explain, we reject both arguments.
A. There is no misconduct.
In support of his claim that the prosecutor engaged in misconduct, defendant relies on two cases: People v. Nguyen (1995) 40 Cal.App.4th 28 and People v. Martinez (1979) 76 Ill.App.3d 280. According to defendant, those two cases held similar prosecution arguments improper. (See People v. Nguyen,at p. 35; People v. Martinez, at p. 285.)
Defendant’s reliance on Nguyen is misplaced, as that case is distinguishable. There, the problem did not lie in the prosecutor’s observation that the reasonable doubt standard is applied “in every single criminal case. And the jails and prisons are full, ladies and gentlemen.” (People v. Nguyen, supra, 40 Cal.App.4th at p. 35.) Rather, the misconduct came thereafter, when the prosecutor compared the standard of guilt beyond a reasonable doubt to everyday decisions, like changing lanes while driving or deciding whether to marry. That comparison constituted misconduct, because it trivialized the standard of proof. (Id. at p. 36.) Here, by contrast, the prosecutor made no such comparisons.
Defendant’s reliance on Martinez likewiseis misplaced, because its key holding has since been abrogated. “The State acts improperly if it seeks in its comments and arguments to reduce its burden of proof to a pro forma detail or to shift the burden to the defendant. [Citation.] However, recent authority holds that merely arguing that proof beyond a reasonable doubt is a readily surmountable burden does not violate this prohibition. For instance, courts allow prosecutors to argue that defendants every day are properly being found guilty beyond a reasonable doubt. [Citations.] These more recent cases are contrary to the holding in People v. Martinez, 76 Ill.App.3d 280, 285, … (1979), cited by defendant, which held that such an argument reduces the burden of proof to a minor detail.” (People v. Majka (2006) 365 Ill.App.3d 362, 372-373.) Given the abrogation of the relevant holding in Martinez, we cannot agree with defendant that its “reasoning is sound.”
In sum, the prosecutor’s comments in this case concerning the burden of proof do not constitute misconduct. In any event, even if objectionable, her statements were harmless, as we now explain.
B. There is no prejudice.
Here, as defendant concedes, the trial court correctly instructed the jury on the standard of proof beyond a reasonable doubt. In such cases, the jury is presumed to have applied the proper standard. (People v. Mendoza, supra, 24 Cal.4th at p. 173; People v. Sanchez (1995) 12 Cal.4th 1, 70.) There is a presumption that “the jury treated the court’s instructions as statements of law, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” (People v. Sanchez, at p. 70.)
Put another way, the accurate jury instruction “vitiated the misleading effect of any inaccurate remarks.” (People v. Sanchez, supra, 12 Cal.4th at p. 70.) For that reason, even if the prosecutor “pushed the limits of proper advocacy, any misconduct that did occur could not have contributed to the verdict and was thus rendered harmless.” (Id. at p. 66.) As the court said in Nguyen, defendant “was not prejudiced since … the jury was correctly instructed on the standard. We must presume the jury followed the instruction and that the error was thereby rendered harmless.” (People v. Nguyen, supra, 40 Cal.App.4th at pp. 36-37.) In this case, too, the jury was properly instructed, and the presumption of harmlessness thus controls. Furthermore, even we were to consider the record as a whole, we would not agree that “the case is closely balanced and the acts of misconduct are such as to have contributed materially to the verdict.” (People v. Wagner, supra, 13 Cal.3d at p. 621.)
To summarize, there was neither misconduct nor prejudice in this case.
DISPOSITION
The judgment of conviction is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Duffy, J.