Is a prosecutor's assertion in closing argument that the defense had an obligation to present evidence sufficient to satisfy the prosecution's burden of proof valid?

In People v. Woods, supra, 146 Cal.App.4th 106, the prosecutor, in response to the defense's argument that an investigating officer's testimony was not credible, argued that that defense had not called any witnesses to testify that the officer was doing his job improperly and further argued that the defense counsel was "'obligated to put the evidence on from that witness stand.'" When the defense counsel objected and stated that she was not obligated to do anything, the court overruled the objection. (Id. at p. 112.) On appeal, the court held that the prosecutor's assertion in closing argument "that the defense had an 'obligation' to present evidence expressly and erroneously advised the jury that [the defendant] bore some burden of proof or persuasion." (Id. at p. 113.) Further, the court held that when the trial court overruled the defense's objection, it implied that the "'obligation'" to which the prosecutor referred actually existed and that it was thus "inconceivable that the jury would understand this uncorrected, implicitly approved statement to mean anything other than [the defendant] carried a burden of proof or production." (Ibid.)

Similarly, here, the prosecution's statement did not simply comment on the defense's failure to call logical witnesses. Instead, the prosecutor's statement erroneously advised the jury that the defense was obligated to present evidence, which, in turn, suggested that the prosecution's burden of proof was satisfied if the defense failed to produce sufficient evidence. Because the statement impermissibly shifted the burden of proof to the defense by suggesting that deficiencies in the defense's case were sufficient to make up for any shortcomings in the People's proof, it was misconduct. (See People v. Centeno, supra, 60 Cal.4th at p. 673 ["It is . . . error to state that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence'"]; see also People v. Hill, supra, 17 Cal.4th at p. 831 [holding the prosecutor committed misconduct insofar as her statement that '"[t]here has to be some evidence on which to base a doubt'" "could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt"], italics omitted.) Moreover, the error was compounded by the trial court overruling the defendant's objection to the prosecutor's statements, which

Page 12

precluded the defense from requesting an admonition to correct the prosecutor's misstatement and suggested to the jury that the prosecution's erroneous statement was valid. (See People v. Woods, supra, 146 Cal.App.4th at p. 113.)