1

Filed 12/29/23 P. v. Young CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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 THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES YOUNG,

Defendant and Appellant.

C097135

(Super. Ct. No. 21FE017018)

After spending time drinking alcohol and watching football at a Sunday barbeque 

hosted by her boyfriend Kevin B. (Kevin) on October 3, 2021, at about midnight, R. Doe 

(R.) and Kevin went to bed in the converted garage at Kevin’s house. At some point, R. 

came to and realized there was a man’s penis in her mouth. She then felt someone kiss 

her neck and roughly grab her vagina, inserting his fingers. When she opened her eyes, 

she discovered defendant Charles Young, Kevin’s neighbor, standing over her.
2

A jury found defendant guilty of sexual penetration of an unconscious victim and 

not guilty of oral copulation of an unconscious victim. The trial court sentenced 

defendant to the middle term of six years in prison for sexual penetration of an 

unconscious victim.

On appeal, defendant asserts (1) the trial court prejudicially erred in its 

instructions to the jury that suggested sexual penetration of an unconscious person was a 

general intent (rather than a specific intent) crime, (2) the prosecutor committed

misconduct in his rebuttal closing argument by stating the jury could not find a 

reasonable doubt in the absence of some evidentiary support, thus shifting the burden of 

proof, and (3) the cumulative effect of these errors was prejudicial.

While we agree instructional error and prosecutorial misconduct occurred, we 

conclude the errors were harmless beyond a reasonable doubt, whether considered 

individually or cumulatively. We affirm the judgment.

BACKGROUND

Defendant was charged in an amended information with sexual penetration of an 

unconscious victim (Pen. Code, § 289, subd. (d); count one)1 and oral copulation of an 

unconscious victim (§ 287, subd. (f); count two). The information alleged three 

circumstances in aggravation. (Cal. Rules of Court, rule 4.421(a)(3), (b)(2), (b)(5).) 

The Prosecution’s Case

R. testified that, on October 3, 2021, she and her boyfriend Kevin hosted a 

barbecue at his house. They did so every Sunday during the football season; everyone 

would get together and watch football. Defendant was Kevin’s next-door neighbor and 

he regularly attended the barbecues. R. was familiar with defendant, and they were polite 

1

 Undesignated statutory references are to the Penal Code.
3

and friendly, but they did not interact with each other very much. Sometimes they would 

smoke marijuana together. 

On October 3, 2021, 15 to 20 people attended the barbecue, including defendant. 

At approximately midnight, R. and Kevin closed the door of the garage, which was 

converted into a bedroom, and went to bed. R. had a lot to drink that evening so she 

“passed out” in bed with Kevin. 

At some point R. woke up when someone inserted a penis into her mouth. 

Assuming it was Kevin, R. did not initially open her eyes. The person withdrew his penis 

from her mouth and then kissed her on her neck. Then he roughly grabbed her vagina, 

inserting his fingers. R. jumped “because it was so rough,” and, at that time, her arm 

struck Kevin who was in bed next to her. She thought, “[i]f this is Kevin, who in the hell 

is this above me,” and she opened her eyes to discover defendant standing over her. R. 

screamed and Kevin woke up and saw defendant standing by the bed. Kevin demanded, 

“what the hell are you doing in here,” and defendant responded, “Why you guys fuckin’ 

trippin’?” Defendant ran out of the garage, Kevin followed, and R. called 911. 

Officer Andrew Schaner was dispatched to Kevin’s house at approximately 

1:30 a.m. R. told him what had happened. However, she did not disclose the information 

“[a]bout . . . sucking his penis” because Kevin was nearby, and R. felt ashamed. 

Although she declined to go to a hospital for an examination that night, an officer did 

take a swab from her neck. The officer also took a buccal swab for a reference sample. 

Officer Schaner attempted to take a statement from defendant, who had been 

detained in his front yard. Defendant appeared to be inebriated. Defendant told Schaner 

he had been at Kevin’s house watching football, and that his interactions with R. were 

limited to greetings. He stated he did not have physical contact with her that night or 

ever. 
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At some point, a cell phone was discovered in R. and Kevin’s bed that did not 

belong to them and had not been there when R. went to bed. The phone number matched 

defendant’s cell phone number. 

Detective Matthew Wollman interviewed defendant at the jail, beginning at 

approximately 7:40 a.m. Defendant “seemed relatively sober.” Defendant stated he had 

“smoked a little bit [of] weed,” and drank a cup of Hennessey. Defendant said he did not 

feel intoxicated. Wollman asked if defendant remembered everything that happened the 

night before, and defendant responded, “nothing sexual.” He told Wollman his DNA 

would not be found on R., and her DNA would not be found on him. He said he did not 

come into physical contact with her at all. He did tell Wollman that he previously 

smoked marijuana with R. However, as Wollman understood it, defendant indicated his 

only interaction with R. the prior evening was greeting each other. When Wollman asked 

if he ever went into Kevin’s garage, defendant said he entered the garage to retrieve a 

chess set. However, he had no explanation for why his phone was in R.’s bed. Law 

enforcement collected swabs and fingernail scrapings from defendant. 

The next day, Detective Wollman accompanied R. to a forensic examination. 

Without Kevin present, R. clarified that, when the incident began, defendant’s penis “was 

fully in her mouth and fully erect at the time.” She told Wollman she had begun to wake 

up, realized there was a penis in her mouth, believed it was Kevin’s, and therefore 

allowed it to remain there for a time before discovering Kevin in bed next to her. 

A nurse, who testified as an expert in sexual assault examinations, examined R. 

She took several swabs and performed a pelvic exam. She found a bruise on R.’s thigh 

and petechiae where her upper lip and gums met. She did not find any injury in R.’s 

vaginal area. The nurse testified that, “[a]bout 50 percent of the time there are no 

findings.” The nurse opined that R.’s condition was consistent with what she reported. 

She also testified the petechiae were consistent with oral copulation. A criminalist from 

the Sacramento County Crime Lab testified as an expert in DNA detection and analysis 
5

and the statistical significance of DNA comparison. Defendant’s DNA was found on two 

swabs taken from the right side of R.’s neck. In reference to the defendant’s left 

fingernail scrapings, the criminalist testified it was “at least 136 times more likely to 

obtain the DNA results if [defendant], [R.] and a random unrelated individual are 

contributors to the mixture than if [defendant] and two random unrelated individuals are 

contributors.” As to his right fingernail scrapings, it was “at least 101 times more likely 

to obtain the DNA results if [defendant] and [R.] are contributors to the mixture than if 

[defendant] and a random unrelated individual are contributors.” The criminalist 

excluded R. as a contributor to defendant’s penile and scrotal swabs. 

The Defense Case

Officer Michael Hamilton arrived at Kevin’s house at approximately 1:45 a.m. and 

interviewed Kevin inside the garage while R. spoke with firefighters in the driveway. 

The rollup garage door was down at the time. 

Dr. Dan Field, an emergency medicine physician, testified as an expert in injuries, 

emergency medicine, and trauma analysis. He testified that petechiae resulting from 

forced or unforced oral copulation will typically be found on the soft palette. The 

literature Field reviewed indicated there was a low rate of injuries associated with forced 

copulation inside the mouth, and petechiae on the inner lip was not mentioned as an 

injury resulting from such circumstances. He testified the injury to R.’s lip was not of a 

type that would commonly result from oral copulation. 

Verdict and Sentencing

The jury found defendant guilty of count one, sexual penetration of an 

unconscious victim, and not guilty of count two, oral copulation of an unconscious 

victim. In a bifurcated proceeding, the trial court found true the three aggravating 

circumstances as alleged. The court sentenced defendant to the middle term of six years 

on count one. 
6

DISCUSSION

I

Instructional Error

Defendant asserts the trial court erred in instructing the jury that sexual penetration 

of an unconscious person was a general intent crime rather than a specific intent crime. 

The People agree the court erred by instructing the jury with CALCRIM No. 250 but not 

with CALCRIM Nos. 251 or 252. We agree with the parties as to the error, but conclude 

it was harmless beyond a reasonable doubt.

A. Additional Background

The trial court instructed the jury with CALCRIM No. 250, the general intent 

instruction, as follows: “The crimes charged in Counts 1 and 2, each require proof of the 

union, or joint operation, of act and wrongful intent. [¶] For you to find a person guilty 

of the crimes in this case, that person must not only commit the prohibited acts, but must 

do so with wrongful intent. A person acts with wrongful intent when he or she 

intentionally does a prohibited act. However, it is not required that he or she intend to 

break the law. The act required is explained in the instruction for that crime.” 

As to count one, the court instructed the jury with CALCRIM No. 1048, in part, as 

follows: “The defendant . . . is charged in Count 1 with sexual penetration of a person 

who was unconscious of the nature of the act in violation of . . . section 289[, subdivision 

](d). [¶] To prove that the defendant is guilty of this crime, the People must prove that: 

[¶] 1. The defendant committed an act of sexual penetration with another person; [¶] 

2. The penetration was accomplished by using a foreign object, substance, instrument, 

device or unknown object; [¶] 3. The other person was unable to resist because she was 

unconscious of the nature of the act; [¶] AND [¶] 4. The defendant knew that the other 

person was unable to resist because she was unconscious of the nature of the act. [¶] 

Sexual penetration means penetration, however slight, of the genital or anal opening of 

the other person, for the purpose of sexual abuse, arousal, or gratification.” 
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B. Standard of Review

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citations.] The general principles of law governing the case are those 

principles closely and openly connected with the facts before the court, and which are 

necessary for the jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 

19 Cal.4th 142, 154, disapproved on another ground in People v. Schuller (2023) 

15 Cal.5th 237, 260, fn. 7.) “In assessing a claim of instructional error or ambiguity, we 

consider the instructions as a whole to determine whether there is a reasonable likelihood 

the jury was misled.” (People v. Tate (2010) 49 Cal.4th 635, 696.) “A claim of 

instructional error is reviewed de novo.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.)

C. Analysis

A “violation of section 289 is a specific intent crime.” (People v. Saavedra (2018) 

24 Cal.App.5th 605, 613 (Saavedra); accord, People v. McCoy (2013) 215 Cal.App.4th 

1510, 1539-1540.) “A trial court has a sua sponte duty to instruct a jury on specific intent 

when the offense requires it.” (People v. Ngo (2014) 225 Cal.App.4th 126, 162.)

Here, the trial court instructed the jurors with CALCRIM No. 250. As the People 

note, the Judicial Council’s bench notes to CALCRIM No. 250 state: “this instruction 

must not be used if the crime requires a specific mental state, such as knowledge or 

malice, even if the crime is classified as a general intent offense. In such cases, the court 

must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State.” 

(Bench Notes to CALCRIM No. 250 (Rev. 2022).) The bench notes to CALCRIM 

No. 251 state: “This instruction must be given if the crime requires a specific mental 

state, such as knowledge or malice, even if the crime is classified as a general intent 

offense.” The trial court here did not instruct the jury with CALCRIM No. 251. (Bench 

Notes to CALCRIM No. 251 (Rev. 2008).) Nor did it instruct the jury with CALCRIM 

No. 252, which, according to the bench notes, may be given “in cases involving both 
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offenses requiring a specific intent or mental state and offenses that do not, rather than 

giving both CALCRIM No. 250 and CALCRIM No. 251.” (Bench Notes to CALCRIM 

No. 252 (Rev. 2017).) 

Because violation of section 289 is a specific intent crime (Saavedra, supra, 

24 Cal.App.5th at p. 613), the trial court erred in failing to instruct with either CALCRIM 

No. 251 or CALCRIM No. 252 (People v. Ngo, supra, 225 Cal.App.4th at p. 162).

D. Prejudice

Defendant asserts the error was one of federal constitutional dimension and cannot 

be deemed harmless. The People respond that the error was harmless beyond a 

reasonable doubt because the court correctly instructed the jury on the required intent. 

We agree with the People.

“Courts have differed concerning the proper standard for assessing prejudice with 

respect to this type of error.” (Saavedra, supra, 24 Cal.App.5th at p. 615.) We will

conclude the error was harmless under the more stringent standard of Chapman v. 

California (1967) 386 U.S. 18, at page 24. Under Chapman, the “reviewing court must 

reverse the conviction unless, after examining the entire cause, including the evidence, 

and considering all relevant circumstances, it determines the error was harmless beyond a 

reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 3.) To determine whether 

the People have satisfied their burden of proving the error was harmless beyond a 

reasonable doubt, the reviewing court examines “the entire record and must reverse if 

there is a ‘ “ ‘reasonable possibility’ ” ’ that the error contributed to the verdict.” 

(People v. Reese (2017) 2 Cal.5th 660, 671.)

Under similar circumstances, the court in Saavedra, addressing prejudice, stated: 

“CALCRIM No. 1128 correctly set out the elements—including the intent—required for 

the jury to convict defendant of sexual penetration of a child 10 years of age or younger, 

as charged in count 11. The language of the instruction covered both the requisite intent 

per se and the requirement of a concurrence of act and specific intent. The record on 
9

appeal—which we have carefully reviewed—contains no evidence that could rationally 

lead to a finding the act of penetration charged in count 11 was committed for a purpose 

other than sexual arousal, gratification, or abuse. Moreover, defendant did not contest the 

element, but rather denied any culpability. Since no rational jury could have found the 

specific intent element unproven, the error was harmless beyond a reasonable doubt.” 

(Saavedra, supra, 24 Cal.App.5th at pp. 615-616, fn. omitted.)

Similar to Saavedra, here, CALCRIM No. 1048 correctly set out the elements--

including the intent--required for the jury to convict defendant of sexual penetration of an 

unconscious victim. (See Saavedra, supra, 24 Cal.App.5th at p. 615.) Specifically, 

CALCRIM No. 1048 instructed that “sexual penetration means penetration . . . for the 

purpose of sexual abuse, arousal, or gratification.” (Italics added.) “The language of the 

instruction covered both the requisite intent per se and the requirement of a concurrence 

of act and specific intent.” (Saavedra, at pp. 615-616.) As in Saavedra, the record 

contains no evidence that could rationally lead to a finding that the sexual penetration 

was committed for any purpose other than “sexual abuse, arousal, or gratification.” 

(CALCRIM No. 1048; see Saavedra, at p. 616.) And defendant did not contest the 

specific intent element, but rather denied culpability. (Saavedra, at p. 616.)

Defendant contends the record contains substantial evidence he was highly 

intoxicated at the relevant time, and asserts that, by informing the jury that the crime only 

required a general intent, it rendered evidence of his intoxication irrelevant. This 

evidence was relevant, he maintains, because evidence of unconsciousness caused by 

voluntary intoxication can negate specific intent. (§ 29.4, subd. (b) [“[e]vidence of 

voluntary intoxication is admissible solely on the issue of whether or not the defendant 

actually formed a required specific intent”].) He asserts the instructional error precluded 

the jury from considering evidence of intoxication that would have undermined the 

conclusion that he acted with the requisite specific intent, and, had the jury been able to 
10

consider his intoxication in assessing his mental state, there is a reasonable probability he

would have achieved a more favorable result. 

In the pages defendant cites as providing substantial evidence he was highly 

intoxicated, Officer Schaner testified that, when he detained defendant, defendant 

“appeared to be inebriated” and “under the influence of alcohol,” and Detective Wollman 

testified that, when he was initially contacted, he “was informed that [defendant] was 

highly intoxicated.” Wollman’s testimony was elicited as a contrast to what defendant 

told him during the interview, specifically that he had a cup of Hennessey to drink and he 

had “smoked a little bit [of] weed.” Wollman also testified that, when he met with 

defendant at the jail, defendant appeared to be “relatively sober,” although this was 

several hours after the incident. Thus, the evidence potentially conflicted on the extent 

defendant’s alcohol and/or marijuana consumption affected him.

As the People observe, the trial court does not have a sua sponte duty to instruct 

with CALCRIM No. 3426 on voluntary intoxication and that the jury may consider 

voluntary intoxication in deciding whether the defendant acted with a specific intent. 

(People v. Castillo (1997) 16 Cal.4th 1009, 1014.) The court here did not instruct the 

jury with CALCRIM No. 3426. Without this instruction, even if the jurors had been 

given CALCRIM No. 251, they would not have been informed that evidence, if any, of 

defendant’s voluntary intoxication could be considered “only in deciding whether the 

defendant” acted with the requisite specific intent and for no other purpose. (CALCRIM 

No. 3426.) In the absence of CALCRIM No. 3426, the omission of CALCRIM No. 251 

would have had no effect on the jury’s consideration of defendant’s intoxication; that 

instruction would have offered no guidance on the subject.

At trial, defense counsel argued that defendant did not commit the act at all, not 

that he committed the act without the requisite specific intent. (See Saavedra, supra, 

24 Cal.App.5th at p. 616 [“defendant did not contest the element, but rather denied any 

culpability”].) Defendant asserts the arguments of counsel do not limit the evidence and 
11

theories the jury may consider. He argues there is no authority for the position that “a 

jury may only consider a defendant’s intoxication” in the context of a specific intent 

crime “if his counsel specifically raised the subject as an affirmative defense at trial.” 

But assuming this premise is true, it is of little help to defendant here. We presume the 

jury considered the evidence of defendant’s intoxication insofar as it was relevant. 

(People v. Harris (1994) 9 Cal.4th 407, 431 [we presume jury considered all relevant 

evidence before it].) The jury nevertheless necessarily determined that, when defendant 

committed sexual penetration, he did so with the specific intent of doing so for the 

purpose of sexual abuse, arousal, or gratification as instructed by CALCRIM No. 1048. 

(People v. Letner and Tobin (2010) 50 Cal.4th 99, 196 [“[t]he jury is presumed to have 

followed the trial court’s instructions in the absence of any indication it was unwilling or 

unable to do so”].)

Defendant emphasizes that the prosecutor argued in closing that there was no 

defense of voluntary intoxication in this case. In fact, the prosecutor stated, “[t]his is a 

general intent crime,” although it is not clear to what crime he was referring. Based on 

this argument, defendant asserts that, “[w]hen a prosecutor’s argument relies on 

instructional error for at least part of its support, prejudice necessarily emerges.” The 

cases he cites, however, do not support this premise. For example, in People v. Godinez

(1992) 2 Cal.App.4th 492, the court opined that the harmful effect of an erroneous

instruction may be “magnified” by the prosecutor’s closing argument. (Id. at p. 504.) 

Here, the prosecutor’s argument did not establish prejudice; it was one consideration in 

the prejudice analysis. (Id. at pp. 503-505.) While the prosecutor argued evidence of 

intoxication was irrelevant and referenced a general intent crime, this does not 

“necessarily” establish prejudice as defendant claims. The trial court instructed the jury 

on the specific intent required to find defendant guilty on count one, that he committed 

sexual penetration “for the purpose of sexual abuse, arousal, or gratification.” 

(CALCRIM No. 1048.) We presume the jury considered the evidence of intoxication 
12

insofar as relevant. (People v. Harris, supra, 9 Cal.4th at p. 431.) Further, the trial court 

instructed the jurors that they “must follow the law as I explain it to you, even if you 

disagree with it. If you believe that the attorneys’ comments on the law conflict with my 

instructions, you must follow my instructions.” (CALCRIM No. 200.) And, we cannot 

conclude the prosecutor’s brief reference to an unspecified crime as one of “general 

intent” resulted in prejudice.

The evidence here strongly supported the jury’s verdict on count one. R. testified 

she woke up with a penis into her mouth and was then kissed on the neck and grabbed by 

the genitals. She opened her eyes to discover defendant standing over her. Kevin also 

saw defendant there and followed him as he ran out. Defendant’s cell phone was 

discovered in R.’s bed and had not been there when she lay down. A nurse who 

performed a sexual assault examination of R. opined that her condition was consistent 

with what she reported. A DNA expert testified defendant’s DNA was found on two 

separate swabs taken from the right side of R.’s neck. The DNA evidence also suggested 

R.’s DNA was found in both of defendant’s fingernail scrapings. 

There was evidence R. made inconsistent representations concerning the alleged 

oral copulation. The defense expert did not believe the injury in her mouth was likely to 

have resulted from oral copulation. Additionally, Officer Hamilton’s testimony 

suggested that--contrary to R.’s representation--she was not in Kevin’s immediate 

presence when initially describing the incident, undermining her claim that she omitted 

the description of oral copulation because she was ashamed to disclose that detail in front 

of Kevin. And the DNA expert excluded R. as a contributor to defendant’s penile and 

scrotal swabs. This evidence, while all potentially favorable to the defense, was largely 

relevant to count two, oral copulation of an unconscious victim. The jury found 

defendant not guilty on that count. Beyond having some relevance to R.’s credibility, 

this evidence was largely irrelevant to count one.
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Defendant asserts this was a close case. He quotes People v. Brown (1993) 

17 Cal.App.4th 1389 on this point as stating, “this was a close case. The victim’s 

testimony was vague in many aspects and inconsistent in others. The jury apparently 

found it to be a close case because they were only able to reach a verdict on one of the 

two counts.” (Id. at p. 1398, fn. omitted.) But beyond her inconsistent statements 

concerning oral copulation, R.’s testimony was not particularly vague or inconsistent. 

And the jury here reached verdicts on both charged counts. We are not persuaded this 

was a particularly close case, at least with regard to count one.

We are convinced beyond a reasonable doubt that omitting CALCRIM No. 251 

from the instructions did not contribute to the verdict on count one. As in Saavedra, 

“[s]ince no rational jury could have found the specific intent element unproven, the error 

was harmless beyond a reasonable doubt.” (Saavedra, supra, 24 Cal.App.5th at p. 616.)

II

Prosecutorial Misconduct

Defendant asserts the prosecutor committed misconduct by stating that the jury 

could not find a reasonable doubt in the absence of some evidentiary support, shifting the 

burden of proof. We agree the prosecutor erroneously shifted the burden of proof, but 

conclude the error was harmless beyond a reasonable doubt.

A. Additional Background

While discussing the reasonable doubt standard during his rebuttal closing 

argument, the prosecutor argued: “And in considering what a reasonable doubt is, you’ve 

got to look to the root of the word ‘reasonable.’ It’s reason. A reasonable doubt is based 

on your reason. It’s based on your logic. It’s based on your common sense. And in 

order for a doubt to be reasonable, in order for it to be more than just the imaginary set of 

facts or possible facts that were never actually testified to in this case or anything even 

close to them, in order for a doubt to become reasonable, it has to be supported by 

evidence.” Defense counsel objected and the trial court advised the jurors it would 
14

instruct them on the law. The prosecutor continued, “Otherwise, if it’s not supported by 

evidence, then it’s not reasonable. Then it is just imaginary.” Defense counsel again 

objected and the court overruled the objection. The prosecutor continued: “It is just 

imaginary. It is just a possibility. It’s not reasonable because it’s not supported by the 

evidence.” 

B. Standard of Review

“ ‘ ‘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.” ’ ” (People v. Parson (2008) 44 Cal.4th 332, 359.) To prevail on a claim of 

prosecutorial misconduct in closing argument, the defendant must show a reasonable 

likelihood that the jury understood or applied the prosecutor’s comments in an improper 

or erroneous manner. (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on other 

grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

C. Analysis

Defendant analogizes the prosecutor’s argument here to that in People v. Hill

(1998) 17 Cal.4th 800 (Hill). In Hill, the prosecutor, discussing the reasonable doubt 

standard, stated: “ ‘it must be reasonable. It’s not all possible doubt. Actually, very 

simply, it means, you know, you have to have a reason for this doubt. There has to be 

some evidence on which to base a doubt.’ ” (Id. at p. 831.) After the court overruled 

defense counsel’s objection, the prosecutor in Hill continued: “ ‘There must be some 

evidence from which there is a reason for a doubt. You can’t say, well, one of the 

attorneys said so.’ ” (Ibid.)

The Supreme Court in Hill stated, “to the extent [the prosecutor] was claiming 

there must be some affirmative evidence demonstrating a reasonable doubt, she was 
15

mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s 

evidence.” (Hill, supra, 17 Cal.4th at p. 831.) However, the Supreme Court also 

observed that, “[o]n the other hand, [the prosecutor] may simply have been exhorting the 

jury to consider the evidence presented, and not attorney argument, before making up its 

mind.” (Id. at p. 832.) Ultimately, the court concluded the prosecutor committed 

misconduct “insofar as her statements could reasonably be interpreted as suggesting to 

the jury she did not have the burden of proving every element of the crimes charged 

beyond a reasonable doubt.” (Id., at p. 831.) While the court characterized the matter as 

an arguably close question, the court concluded that it was “reasonably likely [the 

prosecutor]’s comments, taken in context, were understood by the jury to mean defendant 

had the burden of producing evidence to demonstrate a reasonable doubt of his guilt.” 

(Id. at p. 832.)

The prosecutor’s argument here is sufficiently similar to that in Hill such that we 

conclude it was reasonably likely the prosecutor’s comments were understood by the jury 

as suggesting defendant had the burden of producing evidence to raise a reasonable doubt 

of his guilt. (Hill, supra, 17 Cal.4th at p. 832.) The argument was error.

D. Prejudice

Prejudice resulting from prosecutorial misconduct is evaluated under Chapman to 

the extent federal constitutional rights are implicated and under People v. Watson (1956) 

46 Cal.2d 818, if only state law issues are involved. (People v. Fernandez (2013) 

216 Cal.App.4th 540, 564.) We conclude the defendant did not suffer prejudice even 

under the more stringent Chapman standard.

Following objection to this portion of the prosecutor’s argument, the trial court 

advised the jurors that it would instruct them on the law. Subsequently, the court 

instructed that the jurors “must follow the law as I explain it to you, even if you disagree 

with it. If you believe that the attorneys’ comments on the law conflict with my 

instructions, you must follow my instructions.” (CALCRIM No. 200.) The court 
16

instructed the jury on the reasonable doubt standard, both before and after the 

presentation of evidence: “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. Whenever I tell you the People must prove something, I mean they must prove it 

beyond a reasonable doubt. [¶] 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. Unless the evidence proves the defendant’s guilt beyond a reasonable 

doubt, he is entitled to an acquittal and you must find him not guilty.” (CALCRIM No. 

220.) 

“The jury is presumed to have followed the trial court’s instructions in the absence 

of any indication it was unwilling or unable to do so.” (People v. Letner and Tobin,

supra, 50 Cal.4th at p. 196.) Under these circumstances, even under the more stringent 

Chapman standard, we conclude the prosecutor’s misconduct in discussing the 

reasonable doubt standard in a manner that appeared to shift the burden of proof to 

defendant was harmless beyond a reasonable doubt.

III

Cumulative Error

Defendant asserts the cumulative effect of the asserted errors requires reversal. 

We reject this contention. The premise behind the cumulative error doctrine is that, while 

a number of errors may be harmless taken individually, their cumulative effect requires 

reversal. (People v. Bunyard (1988) 45 Cal.3d 1189, 1236-1237, disapproved on another 

ground in People v. Diaz (2015) 60 Cal.4th 1176.) The errors identified above “were 

harmless, whether considered individually or collectively.” (People v. Cunningham

(2001) 25 Cal.4th 926, 1009.) We have found no prejudice when considering defendant’s 
17

claims separately. Viewed cumulatively, our conclusion is the same. Defendant was not 

deprived of a fair trial.

DISPOSITION

The judgment is affirmed.

 /s/

Duarte, J.

We concur:

 /s/

Robie, Acting P. J.

 /s/

Boulware Eurie, J.