Court of Appeal’s reversal of murder convictions based on accumulation of instructional and evidentiary error, plus prosecutorial misconduct, overturned based on absence of error. Cortez and Bernal were convicted of first degree murder and premeditated attempted murder based on a drive-by shooting. Cortez was the driver and Bernal, who was a passenger, fired the shots. On appeal, Bernal’s conviction was affirmed, but Cortez’s was reversed based on three errors: (1) the giving of CALCRIM No. 361 regarding defendant’s failure to explain or deny evidence; (2) the admission of Bernal’s out of court statement that he and Cortez went to shoot gang members; and (3) the prosecution’s misstatement of the reasonable doubt standard. The California Supreme Court granted review. Held: Reversed. It is improper for the prosecutor to misstate the law generally and particularly to attempt to absolve the prosecution from its obligation to overcome a reasonable doubt on all elements. Where the prosecutor’s comments constitute a pattern of egregious conduct that infects the trial with unfairness, the defendant is denied due process. Improper comments falling short of a constitutional violation may still be misconduct under state law if they involve the use of deceptive or reprehensible methods to attempt to persuade the court or jury. During argument the prosecutor characterized the reasonable doubt standard as requiring that the jurors believe they knew what happened and their belief is not imaginary, but based on the evidence. The defense’s objection to this comment was overruled. There was no misconduct. The remarks were an incomplete characterization of the reasonable doubt standard. In light of the reasonable doubt instructions given, defense counsel’s arguments, and the isolated nature of the remark, there was no reasonable likelihood the jury applied the prosecutor’s remarks in an objectionable fashion.

The trial court properly instructed the jury with CALCRIM No. 361, which addresses a testifying defendant’s failure to explain or deny incriminating evidence. Over defense objection, the trial court instructed the jury that if Cortez in her testimony failed to explain or deny incriminating evidence and if she could reasonably be expected to have done so based on what she knew, the jury could consider this in evaluating that evidence (CALCRIM No. 361). The Court of Appeal found the instruction erroneous because Cortez had not failed to explain or deny any fact or evidence that was within her personal knowledge. The Court of Appeal erred. This “instruction applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” The instruction was appropriate because during her testimony Cortez said she did not know a number of facts which she could reasonably have been expected to know given the evidence and her statements to police.

The trial court properly admitted codefendant’s statements to a third party that he and “this woman” went to shoot some 18s (gang members). At trial the prosecution played a tape of Tejeda’s interview with police, in which he said Bernal told him that Bernal and “a woman” had gone out the previous day to shoot “18s,” and provided details regarding their acts. Before trial the defense moved to exclude this evidence as impermissible hearsay, or in the alternative, to exclude under Evidence Code section 352. The Court of Appeal found the statements were against Bernal’s penal interest, so admissible against him. As to Cortez, however, the Court of Appeal found the statements lacked trustworthiness because Bernal could not speak from personal knowledge in describing Cortez’s state of mind. However, there was ample evidence from which a trier of fact could conclude that Bernal had personal knowledge of these matters. The statements regarding Cortez were against Bernal’s penal interests because they reflected a criminal conspiracy and overt acts committed in furtherance of the conspiracy. Bernal knew that linking himself to Cortez would implicate him in a drive-by shooting. Further, the admission of the statements did not violate section 352, as “prejudice” for purposes of that section does not mean damage to a party’s case, but a tendency to evoke an emotional bias against a party, which does not apply in this case.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S211915.PDF