CC 200, paragraph 4, admonishes the jurors as follows:
If you believe that the attorney’s comments on the law conflict with my instructions, you must follow my instructions.
Typically reviewing courts rely on this admonition to assume that the jurors relied on the instructions instead of the arguments of counsel.
When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’ [Citation].” (People v. Osband (1996) 13 Cal.4th 622, 717.)
People v. Collins (2021) 65 Cal.App.5th 333 illustrates an important exception to the rule set forth in cases such as Osband.
On appeal, Collins argued that the prosecutor misstated the law regarding the “fear” element of robbery. CC 1600, the pattern jury instruction for robbery, required the jury to find that the defendant used force or fear to take property from a person’s immediate possession or to prevent the person from resisting. Although the instruction defined “fear,” it did not specify whether the jury must find that (1) the victim was actually, subjectively in fear, or (2) an objective, reasonable person in the same circumstances would have been in fear.
However, the prosecutor repeatedly told the jury an objective standard applies and that it did not “matter if anybody is afraid.” This was error, as the law required proof of the victim’s actual, subjective fear.
The admonition in CC 200 [para 4] did not cure this error because:
Although a trial court’s admonition directing the jury to follow an instruction that “runs counter” to an argument made by counsel can obviate the deleterious effect of that argument [citing Osband] this is of no aid here because the CALCRIM instruction defining fear was silent as to the type of fear (subjective versus objective) that must be proven, and thus was consistent with the prosecutor’s legally incorrect argument; the instruction certainly did not “run counter” to it. (Collins, supra [p. 10].)
In sum, if a misstatement in the argument of counsel is not inconsistent with the instructions then there is nothing to prevent the jurors from relying on the misstatement. (Cf., Strategy Note in F 200.5 Inst 2 Counsel’s Argument That A Specific Rule Is Included In A General Instruction