Prosecutorial Misconduct Based on Remarks to the Jury (California)

"To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. In conducting this inquiry, we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. " (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In People v. Hill (1998) 17 Cal.4th 800, the prosecutor improperly shifted the burden of proof to the defendant when she explained reasonable doubt to the jury as follows: "'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.' . . . '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.' (Italics added.)" (Hill, supra, 17 Cal.4th at p. 831.) The California Supreme Court said that "to the extent the prosecutor was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence. On 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." (Hill, supra, 17 Cal.4th at pp. 831-832.) The California Supreme Court said the question was arguably close, but it concluded it was reasonably likely that the jury understood the comments "to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt." (Id. at p. 832.) The Supreme Court reversed the verdict in Hill, but it did so based upon "the many acts of prosecutorial misconduct and other errors that plagued that trial." (People v. Booker (2011) 51 Cal.4th 141, 186.)