P. v. Willis





























Filed 10/7/10 P. v.
Willis CA3

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TO BE PUBLISHED

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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THE PEOPLE, Plaintiff and Respondent, v. JOSEPH DOUGLAS WILLIS, Defendant and Appellant.

C062714 (Super. Ct. No. 08F04475)

A jury convicted
defendant Joseph Douglas Willis of two separate street robberies, and found
that he personally used a sawed-off shotgun in their commission. The court sentenced him to state prison.

On appeal,
defendant raises only the issue of prosecutorial misconduct during closing argument. Specifically, he asserts a violation of his
right to due process of law because the prosecutor trivialized the nature of
reasonable doubt, lowering the burden of proof for the prosecution. We affirm the judgment.

Facts and
Proceedings

The facts
underlying the convictions are not pertinent to the issues on appeal. We will provide a brief distillation for
context.

On sequential
Sundays in May 2008, two robbers accosted pedestrians in downtown Sacramento
in the small hours of the morning. One
of the robbers pointed a sawed-off shotgun at the victims and demanded their
possessions.

The second
victim's cell phone was used in mid-May to call a woman who lived with
defendant (the mother of his child).
Police used this information, along with surveillance pictures from an
ATM where the second victim's credit cards were used, to create a photo
line-up. The second victim identified
defendant's picture from the photo line-up in June 2008. The first victim, after being unable to
decide between two similar photos in the line-up, identified defendant in a
live line-up in July 2008. A companion
of the first victim during the robbery did not choose defendant in the live
line-up, and believed she had seen the armed robber at a party while the case
was pending, but was certain at trial that defendant was the robber. The two victims asserted at trial that they
had gotten close looks at the armed robber at the time of the crimes and were
certain of their identifications of defendant.


Defendant's
relatives provided an out-of-state alibi for the second robbery, which was
Mother's Day. His father, however, had
previously told police that defendant was out-of-town only on Memorial Day
weekend.

At the outset of
his closing argument, the prosecutor noted that he would be outlining the
instructions on his slides, but the jury should always defer to the
instructions from the judge as the ultimate source of the law. He then began with the concept of reasonable
doubt (the only portion of his argument with which defendant takes issue). He explained that jurors often struggle with
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