Prosecutor committed misconduct by arguing that high ranking California courts have affirmed convictions on facts similar to the case being tried. Defendant shot at rival gang members through the window of a McDonald’s restaurant. A jury convicted him of premeditated attempted murder, gang activity, gun use and other offenses. On appeal defendant asserted prejudicial prosecutorial misconduct based on arguments made by the district attorney. Held: Affirmed. The prosecutor erred in invoking the authority of higher courts to sustain a conviction, which may have implied such courts would expect the jury to return a guilty verdict. It was misconduct for the prosecutor to argue repeatedly that the California Supreme Court and Court of Appeal had upheld guilty verdicts after considering facts similar to those in the present case, and applying the applicable law. Such argument presented the risk the jury might believe that guilty verdicts in similar cases have been settled by higher courts. This risk was increased by the prosecutor’s argument that the state was just going through the motions in trying the case because the evidence against appellant was so strong. The prosecutor erred further by mischaracterizing the evidence as showing that defendant never previously claimed that his gun fired accidentally, when he had so stated to police. However, the misconduct was harmless because the evidence was strong. Even if viewed as instructional error – i.e., that the prosecutor’s statements might be seen as conflicting with instructions given by the trial court – “sufficiently strong evidence may overcome [certain] instructional errors for purposes of prejudice analysis.”

The prosecutor did not commit misconduct by arguing the defense failed to produce evidence the gun fired accidentally. During argument the prosecutor stated the defense failed to produce any evidence that defendant’s gun fired accidentally, other than defendant’s self-serving, unreliable testimony. This was not misconduct. There is a distinction between commenting on the defense’s failure to produce evidence and stating the defense has some duty to produce evidence. The prosecutor was commenting on the state of the evidence with respect to defendant’s claim of accident, which is permissible.

The prosecutor did not imply that defense counsel had aided defendant in concocting a story. The prosecutor argued that defendant was newly asserting the defense of accident at trial, never having previously made this claim. However, the prosecutor did not directly accuse defense counsel of encouraging defendant to lie, but was noting that defendant had changed his story, which is permissible. Although the prosecution did commit misconduct by erroneously describing the evidence – as defendant had told police the shooting was an accident – the error was harmless under any standard.