In People v. Johnsen (2021) 10 Cal.5th 1116, 1166-67 the prosecutor misstated the law by telling the jurors that “[t]here has to be some evidence on which to base a doubt” because this definition of reasonable doubt “preclude[d] jurors from having reasonable doubt solely based on the insufficiency of the prosecution’s evidence.”
The CSC held a similar mischaracterization to be misconduct in People v. Hill (1998) 17 Cal.4th 800, There, the prosecutor “addressed the concept of reasonable doubt, stating: ‘it must be reasonable. It’s not all possible doubt. Actually, very simply, it means, you know, you have to have a reason for this doubt. There has to be some evidence on which to base a doubt .’[Citation]” (Id. at p. 831 (first italics added by Hill.) Over a defense objection, the court allowed the prosecutor to continue, at which point she informed the jury: ” ‘There must be some evidence from which there is a reason for a doubt. You can’t say, well, one of the attorneys said so.’[Citation].” (Ibid., italics added by Hill.) While observing that these statements were “somewhat ambiguous,” (ibid.) the Court concluded that the prosecutor had engaged in misconduct because it was “reasonably likely” the jury understood this comment “to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt” (id. at p. 832).
