(Super. Ct. Nos. 10F00083 & 08F04418)
The opinion of the court was delivered by: Blease , Acting P. J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In this appeal we must decide whether the prosecutor's use of a Far Side cartoon during closing argument went too far.
A jury found defendant Jamario DeWayne Hill guilty of first degree burglary (Pen. Code, § 459)*fn1 and resisting a peace officer, a misdemeanor (§ 148, subd. (a)(1)). The jury also found true allegations that a person other than an accomplice was present in the residence during the commission of the burglary (§ 667.5, subd. (c)(21)), and that defendant had one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12).
Sentenced to eight years in state prison,*fn2 defendant appeals, contending "[t]he prosecutor committed misconduct in closing argument by using a visual aid that improperly trivialized and quantified the reasonable doubt standard." Having reviewed the visual aid and the circumstances surrounding its use, we shall conclude that neither the visual aid nor the prosecutor's comments concerning it amounted to misconduct and affirm the judgment.
"A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]" (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) In evaluating a prosecutor's remarks, "we must view the statements in the context of the argument as a whole." (People v. Dennis (1998) 17 Cal.4th 468, 522.) "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, quoting People v. Bell (1989) 49 Cal.3d 502, 538.) "In particular, it is misconduct for counsel to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. [Citations.]" (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266 [Katzenberger].)
Here, immediately before closing arguments, the trial court instructed jurors in pertinent part as follows: "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 the evidence that was received throughout the entire trial." The court also instructed jurors that they must follow the law as explained by the court, and to the extent the attorneys' comments on the law conflict with the court's instructions, jurors must follow the court's instructions.
During her initial closing argument, the prosecutor reiterated the court's instructions on reasonable doubt, telling the jury that "proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true," which she described as a lasting confidence in the verdict. She also told the jury that "it's proof beyond a reasonable doubt, not all possible doubt, not all imaginary doubt. It's what is reasonable."
In her rebuttal, the prosecutor responded to what she described as defense counsel's attempt to "pick apart little pieces of evidence" to establish reasonable doubt by showing a single-panel cartoon from The Far Side, a popular and syndicated comic. The cartoon depicted a man standing alone on a deserted island with the word "HELF" written in the sand, and another man flying overhead in a helicopter, looking down, and stating into his radio, "'Wait! Wait! Cancel that, I guess it says "helf."'" The prosecutor argued that "[j]ust because there is a small line that doesn't connect does not mean that that person is asking for helf. That's not reasonable doubt."
Defense counsel objected. The trial court overruled the objection but during a side bar directed the prosecutor to "remind the jury that this example was not an attempt to quantify" reasonable doubt. When the prosecutor resumed her rebuttal, she stated that the cartoon is "just an example. I'm not quantifying what reasonable doubt is and what adds up to reasonable doubt. That's for you to decide. [¶] It's just simply an illustration for you. That when you go back in the jury ...