1 Filed 5/29/14 P. v. Warren CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

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

This is an appeal from judgment follo wing appellant Kenneth Raymond Warren’s conviction on three felony dru nk driving counts with enhan cements 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 resp ect to the reasonable doubt standard. We
affirm.
FACTUAL AND PROCED URAL BACKGROUND On December 21, 2011, a crim inal information was filed charging appellant with: (1) felony driving under the in fluence 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)) (cou nt two); (3) misdemea nor 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 c itations herein are to the Vehicle Code.2 (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 2355 0.5, and had served three prior prison terms within the meaning of Pe nal Code section 667. 5, subdivision (b). Finally, the information alleged appellant committed the current offense while on bail awaiting resolution of another felony offense with in the meaning of Penal Code section
12022.1. The charges and allegations set forth ab ove stemmed from events occurring on the evenings of February 2, 20 11 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, drivin g a white Acura, hit from behind a black Cadillac driven by Shlanda Robi nson. This accident was he ard 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 appr oached 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 colo r, mustache.” The officer left to pursue the white Ac ura, and was able to find and stop the vehicle a short time later. The driver, who ma tched 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 s ubsequently took a breath test registering a

2 In addition, appellant’s Acura ha d 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 wh ere appellant had been detained, and she identified him as the person who had hit her vehicle.3 blood-alcohol content of 0.24 percent, roughly three times the legal limit. Appellant was placed under arrest. Months later, on the night of Septem ber 16, 2011, another officer stopped appellant’s vehicle for having a nonfunctioning rear license plate lamp. Appellant “muddl[ed] through” his wallet for several minut es when asked by the officer to produce his driver’s license. The officer noticed ap pellant had an “extremely heavy” alcohol odor, bloodshot and watery eyes, and slurre d speech. Appellant subsequently failed another series of field sobriety tests and a produced a breath test registering a bloodalcohol 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 appe llant guilty of the fe lony drunk driving offenses (counts one, three, four), but coul d 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 appe llant’s prior offenses. On October 3, 2012, the trial court senten ced 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 th at 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 ‘b road 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 mo re specifically, “it is misconduct for counsel to attempt to absolve the prosecution from its pr ima facie obligation to overcome reasonable doubt on all elements.” ( People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1265-1266.)4 However, to actually establish a basi s 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 Constitu tion only “ ‘ “when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfair ness as to make the conviction a denial of due process.’ ” ’ [Cita tions.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misc onduct under state law only if it involves ‘ “ ‘the use of deceptiv e or reprehensible methods to attempt to persuade either the court or the ju ry.” ’ ” [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 ha ve caused the defendant prejudice, such that the court is satisfied that, absent th e misconduct, it is r easonably probable the
defendant would have received a mo re 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 reas onably probable the result would have been
more favorable to the de fendant 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 stat ements to the jury during closing arguments regarding the reasonabl e doubt standard – in particular, certain statements in which the pros ecutor discussed reasonable doub t in numeric or percentage terms and discussed the concept of reasonabl eness in terms of “common sense and life experience” – violated his fundamental right to a fair trial. Appellant reasons that the prosecutor “improperly quantified the conc ept of reasonable doubt, diluting the constitutional standard of proof beyond a re asonable doubt and impe rmissibly telling the jury they could convict based on lesser pr oof,” and “also trivialized the standard, suggesting that reasonable doubt is nothi ng 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 defense5 counsel, not the prosecutor. Omitted from appella nt’s brief is the fact that, during voir dire, defense counsel questioned a prospectiv e juror about how she would react if the
evidence showed a “50/50” probability of guilt or innocenc e. When the prospective juror failed to immediately respond, defense counse l added: “I guess what I’m asking is, could you vote not guilty if you are no t positive of innocence, if th ere’s still some doubt in your mind, well, you think possibly

─ .” At this point, the trial court interrupted defense counsel: “Folks, this is the la w: 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 poin ts to innocence. [¶ ] So if there’s a 50/50, [appellant] gets the benefit of the doubt. You vote not guilty. [¶] . . . [¶] You ha ve 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 hundredpercent-to-zero situation, if it’s a 50/50 si tuation, could you stil l vote not guilty under
those circumstances?” Wh en the prosecutor objecte d that counsel was again misstating the law, the court o ffered this additional instruct ion: “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 bei ng 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 pr ospective juror as fo llows: “[E]ach count has to be proved beyond a reas onable doubt. Now, I just want to make clear that proof beyond a reasonable doubt doesn’t have any percentage attach ed 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 percen tage. It’s just whet her or not there’s a doubt and whether that doubt is reasonable. [¶ ] Is everyone okay with that?” Th e prospective jurors answered in the affirmative and, ultima tely a jury wa s selected.6 The next significant inci dent involving an attorney’s statem ent to the jury regarding the reasonable doubt standard occurred during closing argu ments. 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 ab iding conviction that the charge is true. “Now, proof beyond a reasonabl e doubt need not eliminate a ll possible doubt, and that's because everything in lif e is open to some possibl e or imaginary doubt. “This is going to be in your jury instructi ons. 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 co me up several times.” Then, after addressing the evidence in the case, the prosecutor returned to the reasonable doubt standard, o ffering the following explanation that appellant now challenges as misconduct: “In determining whethe r or not there’s reas onable doubt in this case with regard to the charge s, 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 percen t sure, 90 percent sure, 99 percent sure. There are no percentages.” Consistent with appellant’s contenti ons on appeal, defens e 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 ob jection, 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 le gal definition. [¶] The attorneys’ arguments as to what reasonable doubt is— you need to disregard that, if you feel it’s going to conflict with the7 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 proo f 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 d on’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 clos ing argument, he had this to say about the prosecution’s burden to prov e guilt beyond a reasonable doubt: “Finally, when you’re considering th e standard [of proof ] and what this means, what is before you—you’ll recal l that during the ju ry 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 diffe ring 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 th e highest standard that we have in our legal system, the highest, without any peer. Th ere’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 a8 preponderance of the evidence, meaning more lik ely than not, just ti pping 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 th an 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 syst em, and that’s the standard that’s put before
the determine—the fact-finder or the person judging. “That standard of clear and convincing ev idence is before s ituations where the government is determining whet her 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 th is is a moment to consider, again—proven or not proven is the question before you, a nd everyone here also committed to, at the beginning of this process—even if there’s some sort of pos sibility 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 accep t the reality of how this system works, and it is not simply a question of ‘Who prove d to me guilt or
innocence?’ “That is not the question before you. The qu estion before you is whether the prosecution can prove guilt beyond a reasonable doubt.” In rebuttal, the pros ecutor 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 so mething 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, beca use everything in life is subject to some doubt. [¶] . . .[¶] Listen closely. The C ourt is never going to te ll you he likely did it, probably did it, might have done it, could ha ve done it. You’re never going to hear9 that instruction, because that is not the state of the law. It is simply proof beyond a
reasonable doubt.” Following closing arguments, the trial cour t itself addressed jurors with respect to the reasonable doubt standard, giving by a ll accounts a compete set of standard CALCRIM instructions regarding the prosec ution’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 th at 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 subs equent comments that “proof beyond a reasonable doubt” has “no percen tages assigned to [it].” Moreover, the prosecutor’s comments regarding the ju ry’s inability to quantify proof beyond reasonable doubt in terms of a pa rticular percentage is, as defense counsel admitted, an accurate statement of the law. I ndeed, as the record se t forth above reflects, the prosecutor’s statements regarding reason able doubt focused on the concept that reasonable doubt is not limited to stark percen tages 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 th e 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 r ecord that she was acting decep tively 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 co unsel’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 an d the presumption of innocence. The jury was also told – repeated ly – that the attorney s’ comments or questions on the law are “not evidence” and that, to the extent they conflict with the actual jury instructions, they must10 be disregarded. Appellant has made no sh owing that the jury failed to follow these mandatory instructions. As su ch, the law requires us to pr esume the opposite – to wit, that the jury faithfu lly discharged its duties by follo wing the court’s instructions, including the instruction proh ibiting it from convicting him in the absence of proof of guilt beyond a reasonable doubt. ( People v. Davenport (1995) 11 Cal.4t h 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. 12 68.) Contrary to this holding, appellant offers no showing on ap peal that the prosecution’s purported
mischaracterizations of the reasonable-doubt st andard 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 showi ng in the respondent’s brief that the evidence of his guilt was in fact overw helming (including, for example, the ev idence of his having failed a multitude of field sobriety tests, as well as subsequent br eath alcohol screening tests on the nights in question). Thus, even assuming he is correct that the prosecution overstepped the permissible bounds of advoc acy, 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 re verse a defendant’s c onviction because of prosecutorial misconduct unless it is reasona bly probable the result would have been
more favorable to the de fendant 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.11 DISPOSITION The judgment is affirmed.

_

____________ ____________ Jenkins, J.

We concur:

_____________ ____________ Pollak, Acting P. J.

_____________ ____________ Siggins, J.