Prosecutor’s imprecise use of the word “presume” while arguing the meaning of CALCRIM No. 1191 (addressing the use of uncharged sex offenses) did not amount to misconduct. While referencing evidence of uncharged offenses during closing argument, the prosecutor argued, “[n]ow you get jury instruction 1191, and what 1191 says is if there’s evidence presented that the defendant touched another child in a lewd and lascivious way which you got the instructions for, then you can presume that he committed the crimes here.” Trial counsel did not object, but rather moved for a mistrial during jury deliberations. Wilson appealed, arguing the prosecutor’s statement constituted prosecutorial misconduct. Held: Affirmed. After holding that the mistrial motion was sufficient to preserve the objection for prosecutorial misconduct in this case, the Court of Appeal reasoned that “the jury would reasonably understand [the word “presume”] only in the colloquial sense—‘to expect or assume especially with confidence.’” A legal definition was not provided and “[t]his everyday meaning was reinforced by the prosecutor’s contemporaneous reference to CALCRIM No. 1191 . . . .” The trial court also instructed the jury that it must follow the court’s instructions on the law if the attorneys’ comments on the law conflicted with the instructions. Given the context, there was no reasonably likelihood that the jury understood the argument in an improper or erroneous manner. Even if an error occurred, it was harmless under Watson due to the overwhelming evidence in support of Wilson’s convictions.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/D080920.PDF