Does a prosecutor's comment that reasonable doubt only applies to those who establish their innocence constitute a loophole for the guilty?

First, the critical aspect of the prosecutor's argument in contention here is ambiguous. Defendant argues the jury could have construed the prosecutor's comment as a bald assertion that reasonable doubt only applies to those who establish their innocence. However, the jury could just as easily have understood the comment to mean that the burden of proof beyond a reasonable doubt is onerous to ensure that someone who is innocent is not convicted, but is not meant to be a loophole for the guilty.¹³ However, we need not resolve this debate because when the objectionable statement is viewed in the context of the entire rebuttal argument, the prosecutor's comment cannot reasonably be construed as urging the jury to convict on a lower standard of proof than beyond a reasonable doubt. The prosecutor's inapt analogy to the reasonable doubt standard as a shield for the innocent was a single comment subsumed within a two-prong argument to the jury that the prosecution's burden of proof was not, as portrayed by defense counsel, an insurmountable barrier to the jury's ability to return a guilty verdict, and that defendant was attempting to escape liability by blaming others for his predicament. As importantly, the prosecutor in the course of his rebuttal argument told the jury the trial judge "will instruct you on" reasonable doubt and "tell you what that means," and the trial court did so pursuant to CALJIC 2.90. Accordingly, we conclude there is no "reasonable likelihood that the jury construed or applied . . . the complained-of remarks" in the manner urged by defendant. (People v. Morales, supra, 25 Cal.4th at p. 44.)¹⁴

Page 17