Tuesday, November 18, 2025
Page 3
Telling Jury Defendant Could Have Presented Evidence, Witnesses Didn’t Shift Burden—C.A.
By a MetNews Staff Writer
A prosecutor’s comment in closing argument to a jury that the accused had the ability to subpoena witnesses and present evidence, just as she did, was not an impermissible effort to shift the burden of proof to the defendant, Div. One of the First District Court of Appeal has held in upholding a conviction on gun charges.
Under the unpublished decision rendered on Friday, defendant Mark Holbrook remains convicted of four felonies in connection with his having boarded a minibus in San Francisco in the early morning hours of Oct. 15, 2022, bearing a loaded “ghost gun”—a home-assembled weapon—despite being a convicted felon, barred from lawfully possessing arms. He attempted to force the bus driver, at gunpoint, to take him to a stop not on his route—an effort the driver averted, according to his testimony, by pretending that he “was going to fix the bus and just took off.”
On appeal, Holbrook agued that in telling the jury that the defense had “the power to bring witnesses and to present evidence” and that it “can bring evidence and there was nothing” and comments to like effect, the prosecutor imparted the notion that he had “an obligation to produce evidence to prove his innocence.”
Humes’s Opinion
Presiding Justice James M. Humes authored the opinion, filed Friday, rejecting that and other contentions, affirming a judgment, pursuant to a jury verdict, by San Francisco Superior Court Judge Charles Crompton. Humes said:
“Holbrook fails to explain how the statements he challenges, that the defense had the power to present other witnesses and evidence, could be interpreted to mean that the defense had to present evidence or that any witnesses the defense might present would not be favorable to him. The prosecutor was merely responding to the defense’s argument that the People should have presented other evidence by pointing out, accurately, that the defense had the same ability to present that evidence.”
He continued:
“Moreover, the prosecutor repeatedly stated that she had the burden of proof beyond a reasonable doubt and Holbrook had the right not to testify. We conclude that in the context of the closing arguments as a whole, there is no reasonable likelihood that the jury interpreted the challenged statements in a manner that shifted the burden of proof to the defense.”
CCP §231.7
Holbrook also argued that there was a violation of Code of Civil Procedure §231.7(a) which provides:
“A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.”
A motion was made in the trial court under that section and also under the California Racial Justice Act of 2020, a portion of the Penal Code, but Holbrook only contested on appeal denial of the §231.7 motion.
The prosecutor used a peremptory challenge on a prospective juror described by the deputy public defender as “brown skinned” and possibly “Middle Eastern or Southeast Asian.”
Asked by the prosecutor whether he would follow the instruction to evaluate the credibility of each witness by the same standards, the venireman said:
“Yeah. I mean, it’s the same answer as everybody else, right. Like, yeah, I’m gonna follow the law—do the best I can for sure.”
However, he had earlier indicated that he would be less likely to believe a police officer’s testimony than that of other witnesses. That fact, Humes wrote, “was not negated simply because he promised to ‘do [his] best’ to follow the law” and justified the challenge.
The case is People v. Holbrook, A168951.
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