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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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 

 

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 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 

 

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 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 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 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 hundredpercent-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. 
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 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 
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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 
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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 
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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 
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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.