A prosecutor’s poorly worded description of reasonable doubt does not necessarily result in misconduct. Following the presentation of evidence in appellant’s trial for Penal Code section 288, subdivision (a), at closing argument, the prosecutor explained to the jury that reasonable doubt involves reflecting on the spectrum of possibilities that are supported by the evidence from those that are impossible, to those that are unreasonable, and then to those that are reasonable and possible. He explained that the jury’s decision has to be in the middle, based on reason. Appellant was convicted of the offenses. On appeal, he contended that the prosecutor committed misconduct by misstating the burden of proof. Affirmed. Initially, the court observed that the issue was forfeited for failure to raise it in the trial court. Then, disagreeing with the analysis in People v. Otero (2012) 210 Cal.App.4th 865, the court observed that although the prosecution’s discussion may have implied that reasonable doubt may be met by only a few pieces of evidence, that is not a misstatement of the law and, further, the prosecutor cautioned the jury to look at all the evidence in deciding the case.
The court additionally found that the trial court did not err in finding appellant was an adult at the time of the commission of the crimes. Under Welfare and Institutions Code section 604, the judge shall examine into the age of the person and if it appears he is under 18 years when the crime was committed, the case shall be immediately certified to the delinquency court. The defendant bears the burden of proof with the standard being a preponderance of the evidence. Here, the lack of evidence presented supported the court’s finding that appellant did not prove that he was a minor when the crimes were committed. The court did not err by refusing to order an evaluation for probation suitability pursuant to Penal Code section 288.1 as the record reflects that the court was aware of its discretion but did not intend to grant probation.
Finally, the failure to obtain a supplemental report when more than six months elapsed from the completion of the initial probation report (Cal. Rules of Court, rule 4.411(c)), may have constituted error but it was harmless.