What is the test for a prosecutor to make a statement that a reasonable doubt is reasonable?

Finally, it is significant that the challenged statement was a brief, isolated remark offered in response to defense counsel's misleading comments on the subject. To explain the standard, defendant's counsel stated at one point that "proof beyond a reasonable doubt" is the "amount of evidence" that would enable "[e]ven a mother ... to believe [her] child is guilty." Defendant's counsel later added: "This is my way to say what is reasonable doubt to you. Ask yourself, are you a reasonable person? Would you entertain ridiculous arguments? ... You guys are reasonable people. You only entertain reasonable arguments. You will only entertain reasonable doubt. If you have a doubt, if you're a reasonable person, any doubt you have about the case is reasonable. If you entertain doubt, it's reasonable." It is in response to these comments that the prosecutor told jurors that their belief about what had happened had to be "based in the evidence" and "not imaginary." As the high court has observed, "[i]solated passages of a prosecutor's argument," "like all closing arguments of counsel, are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear." (Donnelly v. DeChristoforo (1974) 416 U.S. 637, 646647, 94 S.Ct. 1868, 40 L.Ed.2d 431.) This general observation is the basis for the rule, as noted above, that "court[s] should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging

[201 Cal.Rptr.3d 874]