California Criminal Lawyer Blog

"There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.)"

Nevertheless, Alameda County DA Ynostrosa made a sustained "Golden Rule" closing argument and disregarded the court's rulings sustaining defense counsel's objections. "Unfortunately, the possible prejudicial effect of the improper comments by the prosecutor was exacerbated by the trial court's passive reaction to them." [Alameda Superior Court Judge Roy Hashimoto].

"The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate." Finally!

Now, who wants to lay odds that the State Bar won't do anything to this prosecutor?

People v. Vance (A122777, First Dist., 9/29/10) Cal.App.4th

In People v. Phillips (B221932, Second Dist., 10/5/10) Cal.App.4th, the California Court of Appeal held that there was sufficient evidence to support a conviction for violating Penal Code section 647.6(a)(1) (annoying or molesting a child) even though there was no evidence masturbation was directed at a specific child. The defendant was masturbating in his car, parked in front of a school. He was seen by a girl who walked by his car.