In what circumstances will a jury interpret or interpret a prosecutor's comment about self-defense in a criminal case?

With respect to the prosecutor's argument about self-defense, we perceive no reasonable likelihood the jury would have construed or applied the prosecutor's remarks in an objectionable fashion. Banks makes much of the prosecutor's comment that "Self-defense does not apply." Viewed in isolation, the comment could be construed as a misstatement of law, as gang members have the same right to defend themselves as anyone else. When the prosecutor's comment is considered in the context of his entire argument, however, it seems to us more likely that he was referring to his earlier statement that gang members who approach one another with guns out cannot claim self-defense.¹³ In that circumstance, "Self-defense does not apply." (See CALCRIM No. 3472.) We do " ' "not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." ' " (People v. Cortez (2016) 63 Cal.4th 101, 131.) On the record before us, it is unlikely that jurors would have understood the prosecutor to mean that gang members do not have a right to self-defense.

The prosecutor's comments regarding premeditation and intent to kill present a somewhat closer question. Nevertheless, we think it unlikely that jurors would have understood the prosecutor to mean that armed gang members necessarily act with premeditation and intent to kill when they use their weapons. In our view, the prosecutor's comments are more reasonably interpreted to mean that gang members who arm themselves before leaving the house demonstrate prior planning activity, from which the jury may infer premeditation and deliberation. (See, e.g., People v. Villegas (2001)

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