A137317
Cal. Ct. App.May 29, 2014Background
- Defendant Kenneth Warren was convicted by a jury of three felony DUI offenses and sentenced to 6 years 8 months; convictions arose from two separate high-BAC stops in Feb and Sept 2011.
- Evidence included field sobriety failures, strong odor of alcohol, slurred speech, and breath tests of .24% and .20% BAC.
- Defense pleaded no contest to one count pretrial; jury convicted on the remaining felony DUIs; prior-felony and prior-prison term enhancements found true.
- On appeal Warren contended the prosecutor committed misconduct by misstating the reasonable-doubt standard during voir dire and closing argument, including comments about percentages and urging jurors to use "common sense and life experience."
- The prosecutor repeatedly told jurors there are "no percentages" attached to proof beyond a reasonable doubt and advised them to follow the court's instructions; the trial court gave full CALCRIM reasonable-doubt instructions and told jurors to disregard attorney statements that conflict with instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor misstated law re: reasonable doubt and committed misconduct | Prosecutor: argued there are no percentages for reasonable doubt and urged jurors to use common sense; these were responsive, accurate statements and court instructions control | Warren: prosecutor quantified/diluted reasonable doubt (discussed percentages), trivialized it as "common sense," thereby lowering burden and denying fair trial | Court: No reversible misconduct. Prosecutor's statements were largely accurate, responsive to defense, not deceptive; jury received correct CALCRIM instructions and presumption of innocence; no prejudice shown |
Key Cases Cited
- People v. Mendoza, 42 Cal.4th 686 (Cal. 2007) (counsel may not misstate law; misconduct reviewed for prejudice)
- People v. Hill, 17 Cal.4th 800 (Cal. 1998) (prosecutorial misconduct violates due process only if conduct is so egregious it renders trial fundamentally unfair)
- People v. Katzenberger, 178 Cal.App.4th 1260 (Cal. Ct. App. 2009) (improper for counsel to attempt to absolve prosecution of burden to overcome reasonable doubt)
- People v. Salcido, 44 Cal.4th 93 (Cal. 2008) (framework for evaluating prosecutorial misconduct)
- People v. Solomon, 49 Cal.4th 792 (Cal. 2010) (attorney argument responsive to opponent's statements may be permissible)
- People v. Williams, 170 Cal.App.4th 587 (Cal. Ct. App. 2009) (misconduct reversal requires reasonable probability of a more favorable outcome absent misconduct)
- People v. Barnett, 17 Cal.4th 1044 (Cal. 1998) (same standard on prejudice review)
- People v. Davenport, 11 Cal.4th 1171 (Cal. 1995) (presumption jurors follow court instructions)