People v. Rodela CA4/3

DISCUSSION

Rodela contends the prosecutor committed misconduct (People v. Hill (1998) 17 Cal.4th 800, 823 (Hill) [unintentional or unknowing error may be characterized as prosecutorial error rather than misconduct]) during rebuttal argument by using the word “presumption” to refer to permissive inferences specified in the Vehicle Code. We review the issue whether the prosecutor misstated the law under an independent standard of review. (See People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266 (Katzenberger) [improper argument to misstate the law].) We discern no prejudicial error.

3 Section 23152, subdivision (a), provides: “It is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle.” Section 23610 provides that in a criminal trial alleging a violation of this section, “the amount of alcohol in the person’s blood at the time of the test as shown by chemical analysis of that person’s blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [¶] . . . [¶] (3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person’s blood, it shall be presumed that the person was…