Filed 12/7/15 P. v. Burdine CA
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H041046
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1363392)

             v.

LEON BURDINE,

         Defendant and Appellant.



                                           STATEMENT OF THE CASE
         An information charged defendant Leon Burdine with inflicting corporal injury on
a cohabitant (Pen. Code, § 273.5, subd. (a)1; count 1), assault by means of force likely to
produce great bodily injury (§ 245, subd. (a)(4); count 2), and criminal threats (§ 422;
count 3). Following a trial, a jury convicted defendant on counts one and two and
acquitted him on count three. The trial court sentenced defendant to three years in prison.
         Defendant now appeals from the judgment of conviction. On appeal, defendant
contends that the prosecutor committed misconduct by misstating the reasonable doubt
standard during closing argument. He also contends that the trial court effectively
misinstructed the jury by overruling a defense objection to the prosecutor’s comments
regarding reasonable doubt.


         1
             Subsequent unspecified statutory references are to the Penal Code.
          As explained below, we find no reversible error. It is true that the prosecutor
made comments that inaccurately described the reasonable doubt standard. However,
reversal due to prosecutorial misconduct is unwarranted because there is not a reasonable
likelihood that the jury understood or applied the complained-of comments in an
improper or erroneous manner. Nor is reversal warranted due to misinstruction. We will
affirm.
                                       BACKGROUND2
          Before closing arguments, the trial court orally instructed the jury. As pertinent
here, the trial court instructed the jury with CALCRIM No. 220, the pattern instruction
regarding proof beyond a reasonable doubt. Pursuant to CALCRIM No. 220, the trial
court stated: “Now the fact that a criminal charge has been filed against the defendant is
not evidence that the charge is true. You must not be biased against the defendant just
because he’s been arrested, charged with a crime or brought to trial. A defendant in a
criminal case is presumed to be innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt. [¶] And whenever I tell you the
People must prove something, I mean that they must prove it beyond a reasonable doubt
unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that
leaves you with an abiding conviction that the charge is true. [¶] The evidence need not
eliminate all possible doubt because everything in life is open [to] some possible or
imaginary doubt. [¶] In deciding whether the People have proved their case beyond a
reasonable doubt, you must impartially compare and consider all of the evidence that was
received throughout the entire trial.”
          During his closing argument, the prosecutor attacked the credibility of defendant’s
testimony, arguing that defendant’s testimony was “wholly self-serving,” “unreliable,”


          2
         The facts underlying defendant’s conviction are irrelevant to our analysis of the
issues presented on appeal. We therefore will not summarize those facts.
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and “inconsistent.” In particular, the prosecutor stated: “[L]adies and gentlemen, there is
absolutely no reason you should believe anything that the defendant said when he was
testifying to you about the events of that day. . . . [¶] [F]undamentally what the defendant
told you is in complete contradiction to all of the evidence in this case. [¶] The defendant
provided you a self-serving statement about what happened that night, a statement that
was designed to prevent him from being convicted of that crime. It was nothing more
and nothing less. His testimony should not be credited.”
          Immediately after the prosecutor stated that defendant’s testimony should not be
credited, he discussed the standard of proof beyond a reasonable doubt. The prosecutor
stated:
                “The law doesn’t define for you what abiding conviction is.
            And as we discussed during voir dire, it’s up to each of you to
            decide whether you have that abiding conviction, whether you
            believe that the defendant is guilty of this crime.
                “Now proof beyond a reasonable doubt also tells you, or the
            instruction also tells you that it is not proof beyond all doubt or any
            doubt. The instruction explains to you that everything in life is
            open to some possible doubt or some imaginary doubt.
                “The question is whether the doubt in your mind is a
            reasonable doubt. Whether it reasonably suggests to you that the
            defendant did not commit this crime.
                “Over the course of the next several minutes, I will be
            explaining to you why you should not have any reasonable doubt in
            this case. The defendant is guilty of all three of these offenses.
                “Now, ladies and gentlemen, every prosecutor has the same
            kind of nightmare running through our heads. That’s after you

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          come back with a verdict, and the verdict is not guilty. We are out
          in the hallway talking, you to me, as we are allowed to do at that
          point, and then someone says to me, well, we knew he was guilty
          but. And what I will want to say to you at any point but will
          probably hold back saying is, ladies and gentlemen, I would
          suggest to you that if you find yourself at any point while you were
          thinking to yourself, I know he’s guilty, but you should stop.
              “Because at the moment you say I know he’s guilty, I would
          suggest to you that you have an abiding conviction that this
          defendant is guilty of the crime. You know he did it.”
          (Italics added.)
       Defense counsel objected to the prosecutor’s statement, arguing that the
prosecutor had made a “[m]isstatement of law.” The trial court should have sustained the
objection. However, after an unreported bench conference, the trial court informed the
jury: “Ladies and gentlemen of the jury, I have overruled the objection that was
immediately before the break. [¶] I want to remind you that what the attorneys say is not
evidence. That if anything the attorneys say about the facts or the evidence in this case
differs from your recollection, you rely on your recollection. [¶] If you believe anything
the attorneys say regarding the law that applies is inconsistent with my instructions on the
law, you follow my instructions.”
       The prosecutor then continued his argument. He stated, “At this point that you
find yourself thinking, I know he’s guilty, you don’t need to go any further, I would
suggest because you have at that point formed that abiding conviction.” (Italics added.)
This statement was erroneous and conflicted with the trial court’s further instruction but
not with its ruling on the objection.



                                             4
       After the parties finished their arguments to the jury, the trial court held a hearing
regarding its ruling on the objection. That hearing shows the trial court very probably did
not have in mind either the clear misstatement of the reasonable doubt standard or the
effect of its ruling on the jury. Indeed, the trial court attributed its ruling to the
consideration of lesser included offenses.3
                                          DISCUSSION
       Defendant contends the judgment must be reversed because the trial court
effectively misinstructed the jury by overruling the defense objection to the prosecutor’s
comments. H also contends the judgment must be reversed due to prosecutorial
misconduct. We will begin our discussion with the claim of prosecutorial misconduct.
I. PROSECUTORIAL MISCONDUCT
       A. Legal Principles
       “Advocates are given significant leeway in discussing the legal and factual merits
of a case during argument.” (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
However, it is “improper for the prosecutor to misstate the law and particularly to
absolve the prosecution from proving beyond a reasonable doubt all elements of a
charged offense.” (People v. Speight (2014) 227 Cal.App.4th 1229, 1242.)
       “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. [Citation.] In conducting


       3
            When explaining its ruling on the objection, the trial court stated: “[I]t was very
clear . . . that what [the prosecutor] was saying is that if they had a belief they did not
need to consider lesser-included offenses and that conviction simply means belief, which
is an accurate statement. [¶] So for that reason, I overruled the objection. I did, however,
remind the jury once we resumed, that what the attorneys say is not evidence and any
instructions that [the attorneys] recite that they believe are inconsistent with mine, they
are to ignore and follow my instructions. So I don’t believe there was any error. To the
extent that there was, I’m confident that it was cured by my instruction.”
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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.]” (People v. Frye
(1998) 18 Cal.4th 894, 970 (Frye), disapproved of on another point in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22; see also Centeno, supra, 60 Cal.4th at p. 667.) “[W]e
do not view the prosecutor’s remarks in isolation but rather ‘in the context of the
argument as a whole.’ [Citation.]” (People v. Adanandus (2007) 157 Cal.App.4th 496,
513 (Adanandus); see also Centeno, supra, 60 Cal.4th at p. 667 [the prosecutor’s remarks
are considered in context]; People v. Marshall (1996) 13 Cal.4th 799, 831 [same].)
       “A defendant in a criminal action is presumed to be innocent until the contrary is
proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown,
he or she is entitled to an acquittal, but the effect of this presumption is only to place
upon the state the burden of proving him or her guilty beyond a reasonable doubt.”
(§ 1096.)
       “Reasonable doubt is defined as follows: ‘It is not a mere possible doubt; because
everything relating to human affairs is open to some possible or imaginary doubt. It is
that state of the case, which, after the entire comparison and consideration of all the
evidence, leaves the minds of jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.’ ” (§ 1096.) Our Supreme Court has
explained that, in accordance with the definition of reasonable doubt, “[i]t is permissible
to argue that the jury may reject impossible or unreasonable interpretations of the
evidence and to so characterize a defense theory.” (Centeno, supra, 60 Cal.4th at p. 672.)
       B. Analysis
       Defendant urges us to conclude that the italicized portions of the prosecutor’s
argument were a misstatement of the reasonable doubt standard. The prosecutor did
attempt to equate proof beyond a reasonable doubt with proof by a preponderance of the
evidence. (See City of Long Beach v. Workers’ Comp. Appeals Bd. (2005) 126

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Cal.App.4th 298, 314 [“preponderance of the evidence means evidence, which when
weighed with contrary evidence, has more convincing force and the greater probability of
truth”].) Although the prosecutor’s comments provided an erroneous description of the
reasonable doubt standard, reversal is required only if, when the complained-of
comments are viewed in the context of the prosecutor’s whole argument, there is a
“reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner.” (Frye, supra, 18 Cal.4th 894, 970; see Adanandus,
supra, 157 Cal.App.4th at p. 513 [we view the comments in the context of the whole
argument, not in isolation].) Below, we consider defendant’s arguments and conclude
that there is not a reasonable likelihood that the jurors understood or applied the
complained-of comments in an improper or erroneous manner.
       Defendant challenges the prosecutor’s comment regarding his “nightmare” of an
acquittal where a juror states “we knew he was guilty but.” Defendant contends that this
comment was misconduct because it encouraged jurors to convict even if all reasonable
doubts had not been extinguished. When considered in context, there is not a reasonable
likelihood that the jury interpreted the comment in the manner espoused by defendant.
The prosecutor’s “nightmare” comment occurred after he informed the jury that
“everything in life is open to some possible doubt or imaginary doubt,” explained that
only reasonable doubts are cause for acquittal, and encouraged the jurors to discredit
defendant’s “unreliable” and “wholly self-serving” testimony. Though badly put, the
comment suggested that non-reasonable or imaginary doubts are not cause for acquittal,
and the comment was an attempt to classify defendant’s testimony as providing only a
non-reasonable or imaginary doubt. Contrary to defendant’s assertion, there is not a
reasonable likelihood that the jurors understood the “nightmare” comment as authorizing
a conviction where reasonable doubt existed.



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       Defendant also asserts that the prosecutor’s use of the word “moment” in
describing reasonable doubt “completely undermine[d] the meaning of ‘abiding’ ” and
thus “minimize[d] the burden to one of shallow, first-glance consideration.” We must
consider the use of the word “moment” in context. It is true that the prosecutor stated,
“Because at the moment you say I know he’s guilty, I would suggest to you that you have
an abiding conviction that this defendant is guilty of the crime.” This comment,
however, followed these statements by the prosecutor: jurors must feel an “abiding
conviction” in guilt in order to convict, proof beyond a reasonable doubt “is not proof
beyond all doubt or any doubt,” “everything in life is open to some possible doubt or
imaginary doubt,” the issue in determining guilt is “whether the doubt in your mind is a
reasonable doubt,” defendant’s testimony was “wholly self-serving” and not credible, and
the jurors should “stop” when they “know” that defendant is guilty. In context, it is
apparent that the prosecutor used the word “moment” to describe the point in
deliberations at which the jurors could classify defendant’s testimony as providing only a
non-reasonable doubt, determine that all reasonable doubts were extinguished, conclude
that an abiding conviction in guilt existed, and convict defendant of the charged crimes.
       Finally, defendant challenges the prosecutor’s comments that advised the jurors to
“stop” and not “go any further” when they “know he’s guilty.” Defendant raises two
arguments in regard to these comments. He asserts that the comments advised the jurors
that they could convict without “thorough consideration.” He also asserts that the
prosecutor’s use of the word “know” improperly suggested that the “everyday” definition
of “knowing something” was “sufficient for a finding of guilt.”
       There is not a reasonable likelihood that the jury understood the prosecutor’s
comments as authorizing a conviction without thorough consideration. The prosecutor
advised the jury that the issue in determining guilt “is whether the doubt in your mind is a
reasonable doubt,” he directed the jury to distinguish between imaginary doubts and

                                             8
reasonable doubts, and he explained that the standard of proof beyond a reasonable doubt
required an “abiding conviction” in defendant’s guilt. The prosecutor’s argument thus
informed the jury that it must engage in a considered analysis before arriving at a verdict.
The prosecutor’s comments to “stop” and “not go any further” when the jury knew
defendant was guilty suggested a stopping point for the jury’s considered analysis.
Viewed in context, there is not a reasonable likelihood that the jurors understood the
prosecutor’s comments as authorizing a conviction without thorough consideration.
       Nor is there a reasonable likelihood that the jury improperly interpreted the word
“know.” Defendant contends that the prosecutor’s use of the word “know” unlawfully
“assured the jury that the ‘common-sense’ definition of knowing something is sufficient
for a finding of guilt.” Citing People v. Johnson (2004) 115 Cal.App.4th 1169 (Johnson),
defendant emphasizes that “minimizing the reasonable-doubt standard, by comparing it to
‘knowing’ something in the everyday sense, has been considered and criticized.”
Contrary to defendant’s assertion, the prosecutor’s simple use of the word “know” did not
suggest that an “everyday” definition of knowledge was sufficient for a guilty verdict.
Moreover, Johnson is distinguishable from defendant’s case. Johnson held that an
instruction that analogized the reasonable doubt standard to the process of “making
decisions to take vacations and get on airplanes” lowered the prosecution’s burden of
proof. (Id. at p. 1172.) In reaching its holding, Johnson noted that it was improper to
analogize the reasonable doubt standard to decisions people make in their everyday lives,
such as the decision to change lanes while driving, the decision to get married, and the
decision to purchase a home. (Id. at pp. 1171-1172.) The prosecutor here never
compared the reasonable doubt standard to any sort of ordinary, everyday activity.
Defendant’s reliance on Johnson is thus unavailing.
       In sum, defendant urges us to examine the prosecutor’s comments in isolation and
conclude that the isolated comments were a misstatement of the reasonable doubt

                                             9
standard. We agree that the complained-of comments, when viewed in isolation,
provided an erroneous and imprecise description of the reasonable doubt standard.
However, reversal is warranted only if, when the complained-of statements are viewed in
context, there is a reasonable likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner. As we have explained, when the
complained-of comments are considered in the context of the prosecutor’s whole
argument, there is not a reasonable likelihood that the jury understood or applied the
comments in an improper or erroneous manner. Nothing we say should be seen as
condoning what the prosecutor did here, but we see it is error rather than misconduct.
II. MISINSTRUCTION
       Defendant contends that by overruling the defense objection to “the prosecutor’s
misstatement of the reasonable-doubt standard,” the trial court “adopted” the prosecutor’s
misstatement “as a sort of pinpoint instruction that undermined the correct reasonable-
doubt instruction.” This argument is not persuasive.
       The trial court did not “adopt” the prosecutor’s comments as a “sort of pinpoint
instruction.” The trial court’s mere act of overruling the objection to the prosecutor’s
comments cannot be construed as an adoption of the prosecutor’s comments. This is
especially true given that, immediately after overruling the objection, the trial court
admonished the jurors to disregard “anything the attorneys say regarding the law” that “is
inconsistent with my instructions on the law.” Defendant’s claim of misinstruction fails.
                                       DISPOSITION
       The judgment is affirmed.




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                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           MÁRQUEZ, J.




____________________________________
           GROVER, J.




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