P. v. Diaz
The appellant in this case was convicted of committing forcible sex acts on his girlfriend. We agree with appellant the prosecutor made an argument to the jury which was improper because it shifted the burden of proof to appellant. However, in light of substantial evidence the sex acts were not consensual, including physical evidence observed shortly after the acts occurred and the victim's initial and credible account of what happened to her, as well as the trial court's accurate instructions on the presumption of innocence and reasonable doubt, the prosecutor's argument was not prejudicial. Thus we reject appellant's contention the prosecutor's argument entitles him to a new trial, either on the grounds the trial court did not sua sponte instruct the jury with respect to the erroneous portions of the prosecutor's argument or because appellant's counsel failed to object to the argument.
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