Filed 5/29/14 P. v. Warren CA1/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
          Plaintiff and Respondent,
v.                                                                       A137317
KENNETH RAYMOND WARREN,
                                                                         (Contra Costa County
          Defendant and Appellant.                                        Super. Ct. No. 5-110573-3)



          This is an appeal from judgment following appellant Kenneth Raymond Warren’s
conviction on three felony drunk driving counts with enhancements for prior offenses.
The trial court sentenced appellant to a total prison term of six years and eight months.
He challenges this judgment on the sole ground that the prosecutor engaged in
misconduct when arguing to the jury with respect to the reasonable doubt standard. We
affirm.
                        FACTUAL AND PROCEDURAL BACKGROUND
          On December 21, 2011, a criminal information was filed charging appellant with:
(1) felony driving under the influence of alcohol (DUI) within ten years of a prior felony
DUI violation (Veh. Code, §§ 23152, subd. (a), 23550.5) (count one);1 (2) misdemeanor
hit-and-run driving (§ 20002, subd. (a)) (count two); (3) misdemeanor driving without a
valid driver’s license (§ 14601.2, subd. (a)) (count three); (4) felony DUI within ten years
of a prior felony DUI violation (§§ 23152, subd. (a), 23550.5) (count four); and
1
          Unless otherwise stated, all statutory citations herein are to the Vehicle Code.
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(5) felony driving with a blood-alcohol level of 0.08 percent or greater within ten years of
a prior felony DUI violation (§§ 23152, subd. (b), 23550.5) (count five). The information
alleged with respect to counts one, four and five that appellant had sustained two prior
felony DUI convictions within the meaning of section 23550.5, and had served three
prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).
Finally, the information alleged appellant committed the current offense while on bail
awaiting resolution of another felony offense within the meaning of Penal Code section
12022.1.
       The charges and allegations set forth above stemmed from events occurring on the
evenings of February 2, 2011 and September 16, 2011, in Pittsburg. Because the only
issue raised on appeal relates to the circumstances of appellant’s trial rather than of his
underlying offenses, we describe the events of these evenings only briefly to provide the
relevant background to the trial.
       On February 2, 2011, appellant, driving a white Acura, hit from behind a black
Cadillac driven by Shlanda Robinson. This accident was heard by a police officer, who
then observed the white Acura speed off. The officer also observed Robinson pull into a
nearby gas station, and so approached her to determine what had occurred. Robinson told
the officer her vehicle had been struck by the white Acura and described the driver as an
“African-American male, dark in skin color, mustache.”
       The officer left to pursue the white Acura, and was able to find and stop the
vehicle a short time later. The driver, who matched Robinson’s description and was later
identified as appellant, smelled of alcohol and had red eyes and slurred speech.2 The
officer conducted a series of field sobriety tests, which appellant failed. Appellant was
thus taken to the police station, where he subsequently took a breath test registering a



2
        In addition, appellant’s Acura had black paint on its front bumper, while
Robinson’s vehicle had white paint on its rear bumper, as well as a small crack. Another
officer escorted Robinson to the location where appellant had been detained, and she
identified him as the person who had hit her vehicle.
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blood-alcohol content of 0.24 percent, roughly three times the legal limit. Appellant was
placed under arrest.
       Months later, on the night of September 16, 2011, another officer stopped
appellant’s vehicle for having a nonfunctioning rear license plate lamp. Appellant
“muddl[ed] through” his wallet for several minutes when asked by the officer to produce
his driver’s license. The officer noticed appellant had an “extremely heavy” alcohol
odor, bloodshot and watery eyes, and slurred speech. Appellant subsequently failed
another series of field sobriety tests and a produced a breath test registering a blood-
alcohol level of 0.20 percent. Appellant was again arrested.
       On September 10, 2012, appellant pleaded no contest to count three, driving
without a valid license, and the remaining counts were renumbered accordingly.
       On September 19, 2012, a jury found appellant guilty of the felony drunk driving
offenses (counts one, three, four), but could not reach a verdict with respect to the
misdemeanor hit-and-run driving offense (count two), resulting in a mistrial. The on-bail
enhancement was subsequently dismissed, and the court found true the remaining
allegations relating to appellant’s prior offenses.
       On October 3, 2012, the trial court sentenced appellant to an aggregate term of six
years and eight months in prison. This timely appeal followed.
                                       DISCUSSION
       Appellant’s sole argument on appeal is that the prosecutor engaged in misconduct
during trial by mischaracterizing to the jury the standard for establishing a criminal
defendant’s guilt beyond a reasonable doubt. The relevant law is not in dispute.
       “Although counsel have ‘broad discretion in discussing the legal and factual
merits of a case [citation], it is improper to misstate the law. [Citation.]’ ” (People v.
Mendoza (2007) 42 Cal.4th 686, 702). And more specifically, “it is misconduct for
counsel to attempt to absolve the prosecution from its prima facie obligation to overcome
reasonable doubt on all elements.” (People v. Katzenberger (2009) 178 Cal.App.4th
1260, 1265-1266.)


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       However, to actually establish a basis for reversing the judgment based on
prosecutorial misconduct in misstating the law, a defendant must show more than the fact
of misconduct. Rather, as the California Supreme Court has explained, prosecutorial
misconduct violates the United States Constitution only “ ‘ “when it comprises a pattern
of conduct ‘so egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.’ ” ’ [Citations.] 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 court or the jury.” ’ ” [Citation.]’ [Citation.]” (People v. Hill (1998)
17 Cal.4th 800, 819. See also People v. Salcido (2008) 44 Cal.4th 93, 152.) And,
moreover, the prosecutorial misconduct must have caused the defendant prejudice, such
that the court is satisfied that, absent the misconduct, it is reasonably probable the
defendant would have received a more favorable result at trial. (People v. Williams
(2009) 170 Cal.App.4th 587, 635 [“we do not reverse a defendant’s conviction because
of prosecutorial misconduct unless it is reasonably probable the result would have been
more favorable to the defendant in the absence of the misconduct”], citing People v.
Barnett (1998) 17 Cal.4th 1044, 1133.)
       In this case, appellant contends certain of the prosecutor’s statements to the jury
during closing arguments regarding the reasonable doubt standard – in particular, certain
statements in which the prosecutor discussed reasonable doubt in numeric or percentage
terms and discussed the concept of reasonableness in terms of “common sense and life
experience” – violated his fundamental right to a fair trial. Appellant reasons that the
prosecutor “improperly quantified the concept of reasonable doubt, diluting the
constitutional standard of proof beyond a reasonable doubt and impermissibly telling the
jury they could convict based on lesser proof,” and “also trivialized the standard,
suggesting that reasonable doubt is nothing more than everyday common sense.” The
following facts are relevant to his claim.
       As an initial matter, we must point out the first mention by counsel of the
reasonable doubt standard in numeric or percentage terms was in fact made by defense

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counsel, not the prosecutor. Omitted from appellant’s brief is the fact that, during voir
dire, defense counsel questioned a prospective juror about how she would react if the
evidence showed a “50/50” probability of guilt or innocence. When the prospective juror
failed to immediately respond, defense counsel added: “I guess what I’m asking is, could
you vote not guilty if you are not positive of innocence, if there’s still some doubt in your
mind, well, you think possibly ─.” At this point, the trial court interrupted defense
counsel: “Folks, this is the law: If, in fact, there are two reasonable interpretations of
the evidence, one of them points to innocence, the other one points to guilt, it is your
duty to point to that which points to innocence. [¶] So if there’s a 50/50, [appellant] gets
the benefit of the doubt. You vote not guilty. [¶] . . . [¶] You have to be convinced
beyond a reasonable doubt and that is a doubt which is based on reason. [¶] Not some
doubt or some possible doubt.”
       Seemingly undeterred, defense counsel continued this line of questioning with
the next prospective juror: “[C]ould you vote not guilty even if it’s not a hundred-
percent-to-zero situation, if it’s a 50/50 situation, could you still vote not guilty under
those circumstances?” When the prosecutor objected that counsel was again
misstating the law, the court offered this additional instruction: “With my clarification
it is not—the issue is if you’re not convinced beyond a reasonable doubt, do you see
yourself in a position of being able to vote not guilty.” After the prospective juror
indicated she could follow this instruction, the voir dire continued.
       In apparent response to defense counsel’s explanation of reasonable doubt, the
prosecutor subsequently addressed another prospective juror as follows: “[E]ach count
has to be proved beyond a reasonable doubt. Now, I just want to make clear that proof
beyond a reasonable doubt doesn’t have any percentage attached to it. You don't have
to be 50 percent sure. You don’t have to be 51 percent sure. 90 percent sure. 99 percent
sure. There’s no percentage. It’s just whether or not there’s a doubt and whether that
doubt is reasonable. [¶] Is everyone okay with that?” The prospective jurors answered
in the affirmative and, ultimately a jury was selected.


                                              5
       The next significant incident involving an attorney’s statement to the jury
regarding the reasonable doubt standard occurred during closing arguments. This time,
the prosecutor broached the subject, stating:
“The standard of proof in this case is proof beyond a reasonable doubt. Reasonable
doubt is proof that leaves you with an abiding conviction that the charge is true.
“Now, proof beyond a reasonable doubt need not eliminate all possible doubt, and that's
because everything in life is open to some possible or imaginary doubt.
“This is going to be in your jury instructions. Proof beyond a reasonable doubt, not proof
beyond all possible or imaginary doubt. That is the burden of proof in this case. That is
the burden of proof you hold the People to.
“I must prove these charges beyond a reasonable doubt, in order for you to convict. That
word ‘reasonable’ will come up several times.”
       Then, after addressing the evidence in the case, the prosecutor returned to the
reasonable doubt standard, offering the following explanation that appellant now
challenges as misconduct: “In determining whether or not there’s reasonable doubt in this
case with regard to the charges, it’s important to remember that there are no percentages
assigned to proof beyond a reasonable doubt. In fact, there’s no percentages at all in
criminal law. [¶] You don’t have to be 50 percent sure Mr. Warren is guilty. You don’t
even have to be 51 percent sure, 90 percent sure, 99 percent sure. There are no
percentages.”
       Consistent with appellant’s contentions on appeal, defense counsel objected
that the prosecutor’s argument “misstates the law.” The court advised the prosecutor to
rephrase, and the prosecutor continued: “You do not have to be 50 percent sure, to
convict Mr. Warren. You do not have to be 51 percent sure, 75 percent sure. You don't
have to be 90 percent sure or 99 percent sure.”
       Defense counsel repeated his previous objection, prompting the court to address
the jury as follows: “Folks, the burden of proof is proof beyond a reasonable doubt. I
will give you the legal definition. [¶] The attorneys’ arguments as to what reasonable
doubt is— you need to disregard that, if you feel it’s going to conflict with the

                                                6
instructions that I have already given you on reasonable doubt and which I will continue
to give you at the conclusion of the trial. [¶] Proceed, ma’am.”
       The prosecutor thereafter continued: “Listen closely to when the Court
instructs you on the burden of proof in this case. You will not hear a percentage
associated with it, and that’s because the lawmakers understand that they cannot tell you
what ‘reasonable’ means. They cannot define it for you. [¶] This is when we ask you
to use your common sense and life experience. You have to decide whether or not a
doubt— should you have one—is reasonable.” Similarly, at the conclusion of her
closing argument, the prosecutor summarized the reasonable doubt standard as follows:
“I’ll just remind you that the burden of proof in this case is proof beyond a reasonable
doubt, doubt that’s based on reason, on logic, not on speculation, not on a hunch, not on a
would-coulda-shoulda, on a reason. [¶] You know, we ask you to leave all bias and
prejudice outside of the courtroom, but we don’t ask you to leave your commonsense and
your life experience, and this is where that kicks in.”
       When time came for defense counsel’s closing argument, he had this to say about
the prosecution’s burden to prove guilt beyond a reasonable doubt:
“Finally, when you’re considering the standard [of proof] and what this means, what is
before you—you’ll recall that during the jury selection process, I brought up the
concept of a coin flip and how 50/50 is not good enough.
“Now, I think there is some dispute—or differing accounts of what the law requires from
the Defense and Prosecution, but I submit to you 50/50 is not enough and 50 percent
confidence is not enough, and we know that this is so, even though we’re not given
percentages—I agree with that, you’re not given a percentage for beyond a reasonable
doubt, but we know it’s more than 50/50. I’ll tell you how.
“By definition, beyond a reasonable doubt is the highest standard that we have in our
legal system, the highest, without any peer. There’s nothing that’s tied with it. It's the
highest standard that we have in the legal system, okay?
“There are other standards, so, we can kind of orient ourselves and know what that
standard means. [¶] One standard that is—applies in the civil context is by a

                                              7
preponderance of the evidence, meaning more likely than not, just tipping the scales, like,
51/49 percent.
“50/50 would not even be good enough for a preponderance of the evidence, in tipping of
the scales, but this standard is higher than that, because it’s the highest standard.
“Beyond a reasonable doubt is higher, even, than clear and convincing evidence, which is
another standard that applies in the legal system, and that’s the standard that’s put before
the determine—the fact-finder or the person judging.
“That standard of clear and convincing evidence is before situations where the
government is determining whether to take away parental rights. It must be shown
beyond a preponderance, by clear and convincing evidence. This is greater, even, than
that.
“So, it is certainly above 50 percent, and this is a moment to consider, again—proven
or not proven is the question before you, and everyone here also committed to, at the
beginning of this process—even if there’s some sort of possibility in your mind, that
you think could be—he might be guilty, could have done it, could very well be, but
that is not good enough, that you would be willing to accept the reality of how this
system works, and it is not simply a question of ‘Who proved to me guilt or
innocence?’
“That is not the question before you. The question before you is whether the prosecution
can prove guilt beyond a reasonable doubt.”
        In rebuttal, the prosecutor did not repeat her argument that reasonable doubt does
not correspond to any particular percentage, instead advising jurors to “[l]isten closely
when the Court instructs you on what reasonable doubt is. It’s doubt—reasonable
doubt—proof beyond a reasonable doubt is something that leaves you with an abiding
conviction. [¶] Remember, beyond a reasonable doubt is the standard of proof, not all
possible doubt, not all imaginary doubt, because everything in life is subject to some
doubt. [¶] . . .[¶] Listen closely. The Court is never going to tell you he likely did it,
probably did it, might have done it, could have done it. You’re never going to hear


                                               8
that instruction, because that is not the state of the law. It is simply proof beyond a
reasonable doubt.”
       Following closing arguments, the trial court itself addressed jurors with respect to
the reasonable doubt standard, giving by all accounts a compete set of standard
CALCRIM instructions regarding the prosecution’s burden of proof. Nonetheless,
appellant contends the prosecution’s earlier comments on the subject deprived him of a
fair trial. Having considered in context and as a whole the relevant record on appeal, we
disagree.
       In so concluding, we first reiterate that defense counsel, not the prosecutor, first
spoke of the reasonable doubt standard in terms of numbers or percentages, arguably
opening the door to the prosecutor’s subsequent comments that “proof beyond a
reasonable doubt” has “no percentages assigned to [it].”
       Moreover, the prosecutor’s comments regarding the jury’s inability to quantify
proof beyond reasonable doubt in terms of a particular percentage is, as defense counsel
admitted, an accurate statement of the law. Indeed, as the record set forth above reflects,
the prosecutor’s statements regarding reasonable doubt focused on the concept that
reasonable doubt is not limited to stark percentages and thus were accurate in this regard,
including the prosecutor’s advice to the jury to listen to and follow the trial court’s
instruction rather than to the attorney’s statements on the subject. And even assuming
certain of the prosecutor’s comments may have confused the jury, there nonetheless is no
reasonable inference on this record that she was acting deceptively or reprehensibly given
that, one, her arguments were for the most part correct statements of the law and, two,
that her discussion of numbers or percentages in the context of proof beyond a reasonable
doubt were responsive to defense counsel’s own such statements. (People v. Solomon
(2010) 49 Cal.4th 792, 829; People v. Hill, supra, 17 Cal.4th at p. 819.)
       Furthermore, the jury was subsequently given all standard CALCRIM instructions
relating to the reasonable doubt standard and the presumption of innocence. The jury
was also told – repeatedly – that the attorneys’ comments or questions on the law are “not
evidence” and that, to the extent they conflict with the actual jury instructions, they must

                                              9
be disregarded. Appellant has made no showing that the jury failed to follow these
mandatory instructions. As such, the law requires us to presume the opposite – to wit,
that the jury faithfully discharged its duties by following the court’s instructions,
including the instruction prohibiting it from convicting him in the absence of proof of
guilt beyond a reasonable doubt. (People v. Davenport (1995) 11 Cal.4th 1171, 1210.)
       Finally, we note the holding of appellant’s own authority that “[p]rosecutorial
misconduct is reviewed for prejudice. (See People v. Mendoza, supra, 42 Cal.4th 686,
703.)” (People v. Katzenberger, supra, 178 Cal.App.4th at p. 1268.) Contrary to this
holding, appellant offers no showing on appeal that the prosecution’s purported
mischaracterizations of the reasonable-doubt standard caused him any prejudice. In fact,
after failing to address the prejudice issue in his opening brief, appellant opted not to file
a reply brief to rebut the prosecution’s showing in the respondent’s brief that the evidence
of his guilt was in fact overwhelming (including, for example, the evidence of his having
failed a multitude of field sobriety tests, as well as subsequent breath alcohol screening
tests on the nights in question). Thus, even assuming he is correct that the prosecution
overstepped the permissible bounds of advocacy, there remains no basis for disturbing
the judgment. (People v. Williams, supra, 170 Cal.App.4th at p. 635 [while it is
improper for the prosecutor to misstate the law by, among other things, attempting to
lower the burden of proof, “we do not reverse a defendant’s conviction because of
prosecutorial misconduct unless it is reasonably probable the result would have been
more favorable to the defendant in the absence of the misconduct”], citing People v.
Barnett, supra, 17 Cal.4th at p. 1133. See also People v. Solomon, supra, 49 Cal.4th at
p. 829.) Accordingly, the judgment must stand.




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                                 DISPOSITION
     The judgment is affirmed.



                                          _________________________
                                          Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




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