People v. Centeno

Filed 12/4/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S209957

v. )

) Ct.App. 4/2 E054600

JONIS CENTENO, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. FVA801798

____________________________________)

Courts have repeatedly cautioned prosecutors against using diagrams or

visual aids to elucidate the concept of proof beyond a reasonable doubt (see, e.g.,

People v. Medina (1995) 11 Cal.4th 694, 744-745 (Medina); People v. Otero

(2012) 210 Cal.App.4th 865, 874 (Otero); People v. Katzenberger (2009) 178

Cal.App.4th 1260, 1269 (Katzenberger)), yet these arguments persist. Here, the

prosecutor used a diagram showing the boundaries of California and urged the jury

to convict based on a “reasonable” view of the evidence. The argument unduly

risked misleading the jury about the standard of proof. The judgment is reversed.

I. BACKGROUND

Defendant lived in a garage that had been converted into two living spaces.

Seven-year-old Jane Doe lived in the other section of the garage with her father

and brother. Defendant‟s space did not have a door.

1

In March 2008, child protective services received an anonymous report that

Jane was being neglected by her father and may have been sexually abused by

defendant. Sheriff‟s deputies investigated.

Jane‟s father initially told deputies that he had passed defendant‟s room and

saw Jane on the bed with defendant lying on top of her. When the father entered,

defendant “quickly jumped off,” and Jane ran out. Later, Jane‟s father and the

landlady confronted defendant, asking whether anything inappropriate had

transpired. Defendant said no. But, to avoid future problems, he agreed to have

no contact with Jane or her brother.

Jane made an initial statement to a deputy at her elementary school. That

interview was neither recorded nor introduced into evidence.

Defendant told a deputy the encounter was innocent. He and Jane were

playing in his room. Jane threw a ball at him, then ran up and hugged him as he

sat on the edge of the bed. Defendant lost his balance and rolled onto her. The

father walked in just as defendant was getting up.

In a subsequent forensic interview, Jane said that defendant had touched her

improperly four times. During three of the incidents, defendant lay on top of her,

not moving. Both were clothed. During the fourth incident, defendant exposed

his penis and placed it against her. Jane did not see or feel defendant‟s penis, but

believed it was exposed because she heard him lower his zipper. A video

recording of this interview was introduced into evidence.

At trial, Jane was nearly 10 years old. She repeatedly denied that defendant

had lain on top of her or otherwise touched her improperly. When asked if she

“remember[ed] telling the police officers that . . . there were four times

[defendant] touched [her] in a way [she] didn‟t like,” she exclaimed, “That‟s not

true.” She did not remember making any such report. When pressed about her

previous statements, Jane began to cry, and the court recessed for the day.

2

The next day the prosecutor asked, “Did [defendant] lay on top of you and

you‟re just too embarrassed to talk about it?” Jane replied, “Yes.” In a series of

primarily leading questions, Jane confirmed that defendant had lain on top of her

twice. The first time, Jane lay facedown, saw defendant expose his penis, then felt

it touching her. The second time, Jane lay on the floor facing up as defendant lay

on top of her. It was then that her father interrupted them.

Jane refused to answer many of the prosecutor‟s questions on direct

examination. On cross-examination, she refused to answer any questions about

the charged offenses. The transcript of her testimony reveals that at least 75 times

she gave no response to direct and cross-examination questions. Defense

counsel‟s last inquiry was: “All the questions that [the prosecutor] asked

yesterday and today, are they confusing you? Are they cluttering your mind? Are

they hard to put them all together? Are they confusing you?” Jane responded,

“Yes.”

Although called by the prosecution, Jane‟s father testified he did not see

defendant lie on top of her, nor did he tell investigators he had seen defendant do

so. He described seeing Jane, her brother, and defendant all trying to grab a ball

or a piece of candy on the floor. He did not confront defendant about the incident

at the time or report it to law enforcement, stating that “[t]here was no reason.”

He and his children moved from the residence because there were several men

renting various spaces on the property and he felt it was inappropriate for his

children to enter their rooms.

Defendant‟s father was a pastor at the church Jane‟s father attended. Jane‟s

family was given various types of assistance from church members, including

money, clothing, shoes, food, and transportation. The pastor did not talk to Jane‟s

father about the case or have any influence on his testimony.

3

Defendant testified that one day he, Jane, and her brother were playing with

a ball in his room. They were all laughing and all reached for the ball at the same

time. When Jane‟s father came by, he saw them “all bunched up” on the floor and

told the children to leave. Defendant denied having lain on top of Jane on that

occasion or any other.

In closing argument, defense counsel focused on the reasonable doubt

standard from his opening remarks and vigorously attacked the People‟s case. He

pointed out the anonymity of the report that gave rise to the investigation, the

absence of testimony from several logical witnesses, and the lack of corroborating

evidence. He focused on inconsistencies in the evidence and Jane‟s repeated

denials, during her first day of testimony, that anything improper took place. He

urged that Jane was confused and afraid and that “there [was] a whole litany of

things she couldn‟t see, hear, or perceive.” His theme of argument was that the

whole case was one of missing evidence, missing links, and missing pieces that

gave rise to reasonable doubt.

In rebuttal, the prosecutor also focused on reasonable doubt and asked the

jury to consider a hypothetical criminal trial. Displaying a diagram showing the

geographical outline of California, she characterized the issue in that hypothetical

trial as “[W]hat state is this?” She then laid out hypothetical “testimony” given by

witnesses that contained inconsistencies, omissions, and inaccuracies, but urged

that, even had the jurors heard such evidence, they would have no reasonable

doubt that the state was California. Turning to the facts of the case, the prosecutor

argued that either defendant had lain on top of Jane or that nothing improper had

happened at all. The jury‟s essential task, the prosecutor urged, was to decide

which version of the facts was true. To that end, the prosecutor argued that

defendant‟s testimony was unreasonable, and conversely that the People‟s burden

was met if its theory was “reasonable” in light of the facts supporting it.

4

The jury convicted defendant of two counts of committing lewd acts on a

child under the age of 14,1 and one misdemeanor count of annoying or molesting a

child under the age of 18.2 He was sentenced to five years in prison.

II. DISCUSSION

The trial court gave the majority of its instructions the day before closing

arguments. Those instructions included CALCRIM No. 220, describing the

presumption of innocence and the prosecutor‟s burden of proving guilt beyond a

reasonable doubt.3

The next day, in rebuttal, the prosecutor used a visual display attempting to

illustrate the standard of proof. The presentation itself was not made a part of the

appellate record. However, the prosecutor referred in some detail to its content,

and the appellate court relied on the transcript of argument to resolve defendant‟s

claim of error. The argument proceeded as follows:

1 Penal Code section 288, subdivision (a). All further statutory references

are to the Penal Code.

2 Section 647.6, subdivision (a)(1).

3 Specifically, it provided: “The fact that a criminal charge has been filed

against the defendant is not evidence that the charge is true. You must not be

biased against the defendant just because he has been arrested, charged with a

crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be

innocent. This presumption requires that the People prove a defendant guilty

beyond a reasonable doubt. Whenever I tell you the People must prove

something, I mean they must prove it beyond a reasonable doubt. [¶] Proof

beyond a reasonable doubt is proof that leaves you with an abiding conviction that

the charge is true. The evidence need not eliminate all possible doubt because

everything in life is open to some possible or imaginary doubt. [¶] In deciding

whether the People have proved their case beyond a reasonable doubt, you must

impartially compare and consider all the evidence that was received throughout

the entire trial. Unless the evidence proves the defendant guilty beyond a

reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”

5

“Let me give you a hypothetical. Suppose for me that there is a trial, and in

a criminal trial, the issue is what state is this that is on the Elmo.[4] Say you have

one witness that comes in and this witness says, hey, I have been to that state, and

right next to this state there is a great place where you can go gamble, and have

fun, and lose your money. The second witness comes in and says, I have been to

this state as well, and there is this great town, it is kind of like on the water, it has

got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great

little town. You have another witness that comes in and says, I have been to that

state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I

saw the Walk of Fame, I put my hands in Clark Gable‟s handprints in the cement.

You have a fourth witness who comes in and says, I have been to that state.

“What you have is you have incomplete information, accurate information,

wrong information, San Diego in the north of the state, and missing information,

San Bernardino has not even been talked about, but is there a reasonable doubt

that this is California? No. You can have missing evidence, you can have

questions, you can have inaccurate information and still reach a decision beyond a

reasonable doubt. What you are looking at when you are looking at reasonable

doubt is you are looking at a world of possibilities. There is the impossible, which

you must reject, the impossible [sic] but unreasonable, which you must also reject,

and the reasonable possibilities, and your decision has to be in the middle. It has

to be based on reason. It has to be a reasonable account. And make no mistake

about it, we talked about this in jury selection, you need to look at the entire

4 It appears from this reference that the prosecutor was projecting an image

onto a screen using an ELMO brand projector. Both defendant and the Court of

Appeal inferred from the prosecutor‟s description that the image depicted an

outline of California. The People have not contested this point. Accordingly, we

likewise adopt this inference. (Cal. Rules of Court, rule 8.500(c).)

6

picture, not one piece of evidence, not one witness. You don‟t want to look at the

tree and ignore the forest. You look at the entire picture to determine if the case

has been proven beyond a reasonable doubt.”

Comparing the prosecution and defense evidence, the prosecutor argued:

“Is it reasonable to believe that a shy, scared child who can‟t even name the body

parts made up an embarrassing, humiliating sexual abuse, came and testified to

this in a room full of strangers or the defendant abused Jane Doe. That is what is

reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is

lying to set-up the defendant for no reason or is the defendant guilty?” She

continued: “Is it reasonable to believe that there is an innocent explanation for a

grown man laying on a seven year old? No, that is not reasonable. Is it reasonable

to believe that there is an innocent explanation for the defendant taking his penis

out of his pants when he‟s on top of a seven-year-old child? No, that is not

reasonable. Is it reasonable to believe that the defendant is being set-up in what is

really a very unsophisticated conspiracy led by an officer who has never met the

defendant or he[‟s] good for it? That is what is reasonable. He‟s good for it.”

Defense counsel did not object to these arguments or request that the jury

be admonished to disregard them. As a consequence, the trial court did not

comment on them. On appeal, defendant urges his conviction must be reversed

because the prosecutor committed misconduct, and his counsel was

constitutionally ineffective for failing to object.

A. Misstatement of the Reasonable Doubt Standard in Closing Argument

Advocates are given significant leeway in discussing the legal and factual

merits of a case during argument. (See People v. Mendoza (2007) 42 Cal.4th 686,

702 (Mendoza).) However, “it is improper for the prosecutor to misstate the law

generally [citation], and particularly to attempt to absolve the prosecution from its

7

. . . obligation to overcome reasonable doubt on all elements [citation].” (People

v. Marshall (1996) 13 Cal.4th 799, 831 (Marshall); accord, People v. Hill (1998)

17 Cal.4th 800, 829 (Hill).) To establish such error, bad faith on the prosecutor‟s

part is not required. (Hill, at pp. 822-823.) “[T]he term prosecutorial

„misconduct‟ is somewhat of a misnomer to the extent that it suggests a prosecutor

must act with a culpable state of mind. A more apt description of the transgression

is prosecutorial error.” (Id. at p. 823, fn. 1.)

When attacking the prosecutor‟s remarks to the jury, the defendant must

show that, “[i]n the context of the whole argument and the instructions” (Marshall,

supra, 13 Cal.4th at p. 831), there was “a reasonable likelihood the jury

understood or applied the complained-of comments in an improper or erroneous

manner. [Citations.] In conducting this inquiry, we „do not lightly infer‟ that the

jury drew the most damaging rather than the least damaging meaning from the

prosecutor‟s statements. [Citation.]” (People v. Frye (1998) 18 Cal.4th 894, 970,

disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.

22.)

The case law is replete with innovative but ill-fated attempts to explain the

reasonable doubt standard. (See People v. Johnson (2004) 119 Cal.App.4th 976,

985-986; People v. Garcia (1975) 54 Cal.App.3d 61, 63.) We have recognized the

“difficulty and peril inherent in such a task,” and have discouraged such

“ „experiments‟ ” by courts and prosecutors. (Medina, supra, 11 Cal.4th at p.

745.) We have stopped short, however, of categorically disapproving the use of

reasonable doubt analogies or diagrams in argument. Rather, we assess each claim

of error on a case-by-case basis.

In Medina, supra, 11 Cal.4th 694, this court reviewed the prosecutor‟s use

of a diagram during voir dire to illustrate the standard of proof. The diagram

depicted two horizontal lines, one labeled “ „100 percent certainty‟ ” and a second

8

line beneath it labeled “ „beyond a reasonable doubt.‟ ” (Id. at p. 744.) The

prosecutor emphasized that the jurors should not hold him to the highest standard,

but rather to the “ „lower‟ ” standard, and indicated that a conviction could be

reached if the juror simply “ „cross[es] this black line . . . in your head, of course

. . . .‟ ” (Ibid.) We cautioned against the prosecutor‟s “attempt to reduce the

concept of guilt beyond a reasonable doubt to a mere line on a graph or chart.”

(Id. at p. 745.) We ultimately concluded that no prejudicial misconduct was

shown because the seated jury was properly instructed on the standard of proof,

and the prosecutor‟s voir dire remarks were made before evidence was received

and formal instructions given. (Ibid.)

In Katzenberger, supra, 178 Cal.App.4th 1260, the Court of Appeal

disapproved of an argument similar to that made here. During closing argument,

the prosecutor used a slide show to display pieces of a puzzle. As six pieces of the

puzzle came onto the screen, the picture became “immediately and easily

recognizable as the Statue of Liberty” (id. at p. 1264), even though two pieces that

would have shown part of the statue‟s face and the torch were missing (id. at pp.

1264-1265). Over defense objection, the prosecutor argued, “ „[w]e know [what]

this picture is beyond a reasonable doubt without looking at all the pieces of that

picture. We know that that‟s a picture of the Statute of Liberty, we don‟t need all

the pieces of the [sic] it.‟ ” (Id. at p. 1265.)

The appellate court concluded that the presentation misrepresented the

standard of proof. As relevant here, it observed, “The Statue of Liberty is almost

immediately recognizable in the prosecution‟s PowerPoint presentation. Indeed,

some jurors might guess the picture is of the Statute of Liberty when the first or

second piece is displayed. . . . [and] . . . most jurors would recognize the image

well before the initial six pieces are in place.” (Katzenberger, supra, 178

Cal.App.4th at pp. 1266-1267.) The court reasoned that the presentation invited

9

the jurors to guess or jump to a conclusion without considering all of the evidence,

an approach “completely at odds with the jury‟s serious task of assessing whether

the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.)

The Court of Appeal deemed the error harmless, however. Defense counsel

had argued vigorously against the prosecutor‟s analogy, and the trial court reread

the reasonable doubt instruction to “ „clarify‟ ” the issue. (Katzenberger, supra,

178 Cal.App.4th at pp. 1268-1269.) Additionally, evidence of the defendant‟s

guilt was strong. (Id. at p. 1269.) The appellate court nonetheless expressly

“caution[ed] prosecutors who are tempted to enliven closing argument with visual

aids that using such aids to illustrate the „beyond a reasonable doubt‟ standard is

dangerous and unwise.” (Id. at p. 1269.)

In Otero, supra, 210 Cal.App.4th 865, the court disapproved the

prosecutor‟s use of a diagram similar to the one used here to illustrate proof

beyond a reasonable doubt. At the top of the diagram was printed “ „No

Reasonable Doubt.‟ ” (Id. at p. 869.) The diagram depicted the outlines of

California and Nevada with a dollar sign in southern Nevada and the word

“ „Ocean‟ ” printed to the left of California. Inside California, “ „San Diego‟ ” was

printed in the northern part of the state; just below was a star with the word

“ „Sac.‟ ”; below that was “ „San Francisco‟ ”; and even further south was “ „Los

Angeles.‟ ” At the bottom was a statement: “ „Even with incomplete and

incorrect information, no reasonable doubt that this is California.‟ ” (Ibid.) Using

the diagram, the prosecutor told the jury, “ „I‟m thinking of a state and it‟s shaped

like this. And there‟s an ocean to the left of it, and I know that there‟s another

state that abuts this state where there‟s gambling. Okay. And this state that I‟m

thinking about, right in the center of the state is a city called San Francisco, and in

the southern portion of the state is a city called Los Angeles. And I think the

capital is Sac-something. And up at the northern part of the state there‟s a city

10

called San Diego. I‟m just trying to figure out what state this might be.” “Is there

any doubt in your mind, ladies and gentlemen, that that state is California? Okay.

Yes, there‟s inaccurate information. I know San Diego is not at the northern part

of California, and I know Los Angeles isn‟t at the southern. Okay. But my point

to you in this—‟ ” (Id. at pp. 869-870.) The trial court sustained defense

counsel‟s objection, told the jurors to disregard the diagram, and referred them to

the definition of reasonable doubt provided in the instructions. (Id. at p. 870.)

The Court of Appeal found that the prosecutor‟s argument was improper. It

reasoned that when the prosecutor said she was thinking of a state “ „shaped like

this‟ ” and pointed to the outline of California, “[a]t that point without considering

anything else on the slide . . . we think every juror knew the state was California.”

(Otero, supra, 210 Cal.App.4th at p. 872.) The outline of California itself was so

readily identifiable that the jurors would have known what they were looking at

based on the graphic alone, encouraging them to jump to a conclusion. (Id. at pp.

872-873.) The court observed that “use of a diagram such as the one used in this

case is simply not an accurate analogy to a prosecutor‟s burden to prove beyond a

reasonable doubt each and every element of a charged offense.” (Id. at p. 873.) It

found the error harmless, however, because the trial court admonished the jury to

disregard the diagram and properly instructed on proof beyond a reasonable doubt.

The court also relied on the strength of the prosecutor‟s case. (Id. at pp. 873-874.)

Nonetheless, it stressed that “[p]rosecutors would be wise to avoid such devices.

Otherwise a conviction on a closer case may be jeopardized, especially if the trial

court does not sustain defense counsel‟s objection to the argument and fails to

advise the jury to disregard the objected to presentation.” (Id. at p. 874.)

We agree with Katzenberger and Otero. The use of an iconic image like

the shape of California or the Statue of Liberty, unrelated to the facts of the case,

is a flawed way to demonstrate the process of proving guilt beyond a reasonable

11

doubt. These types of images necessarily draw on the jurors‟ own knowledge

rather than evidence presented at trial. They are immediately recognizable and

irrefutable. Additionally, such demonstrations trivialize the deliberative process,

essentially turning it into a game that encourages the jurors to guess or jump to a

conclusion.

A criminal trial is regulated by rules of procedure. A jury may only decide

the issue of guilt based on the evidence presented at trial, with the presumption of

innocence as its starting point. Although the jurors may rely on common

knowledge and experience in evaluating the evidence (People v. Leonard (2007)

40 Cal.4th 1370, 1414), they may not go beyond the record to supply facts that

have not been proved.5 Facts supporting proof of each required element must be

found in the evidence or the People‟s burden of proof is unmet. It is thus

misleading to analogize a jury‟s task to solving a picture puzzle depicting an

actual and familiar object unrelated to the evidence.

Here, the prosecutor began with the outline of California. She did not posit

that the outline had been established by any evidence; it was simply presented as a

given. The essential question, “[W]hat state is this?,” began with an important

factor presumed: that the outline was, indeed, the depiction of a state.6 In these

two respects, the hypothetical invited the jury to jump to a conclusion before the

5 People v. Collins (2010) 49 Cal.4th 175, 242-256, involved a claim of juror

misconduct. The court‟s discussion of that claim further articulates the difference

between a jury that evaluates the evidence received, and one that relies on

information outside the record.

6 Due to the state of the record, we must infer from the prosecutor‟s

argument what the graphic looked like. In doing so, we do not mean to suggest

that the flaw here was simply an improper description of a permissible visual aid.

Pictures not based on the actual evidence may be confusing or misleading in

themselves. The impact of their misuse may be heightened because they are

visual.

12

prosecutor recounted any other hypothesized “evidence.” (Katzenberger, supra,

178 Cal.App.4th at p. 1267.) The prosecutor did go on to mention other

“evidence,” and urged the jury to “look at the entire picture.” However, the most

important part of her hypothetical, the visual aid showing the shape of California,

was not supported by evidence admitted during the imaginary trial and was also

irrefutable.

Additionally, the hypothetical was misleading because it failed to

accurately reflect the evidence in this case, which was far from definitive. There

may certainly be cases in which a few, particularly strong pieces of information

(such as scientific evidence or the testimony of a single reliable witness) are

sufficiently compelling to prove the defendant guilty beyond a reasonable doubt.

(People v. Jones (2013) 57 Cal.4th 899, 961 [fingerprints, carpet fibers, and DNA

established defendant‟s identity as the killer]; People v. Young (2005) 34 Cal.4th

1149, 1181 [testimony of a single witness can be sufficient]; People v. Scott

(1978) 21 Cal.3d 284, 296 [same].) This was not such a case. It involved starkly

conflicting evidence and required assessments of witness credibility. The crucial

evaluation of Jane‟s testimony involved many factors, including her demeanor at

trial, the inconsistencies in her various accounts, her initial denial under oath, her

unwillingness to answer numerous questions, the lack of corroborating evidence,

defendant‟s denials, and testimony from Jane‟s father corroborating defendant‟s

account.

We take care to note that not all visual aids are suspect. The use of charts,

diagrams, lists, and comparisons based on the evidence may be effectively and

fairly used in argument to help the jury analyze the case. In contrast, one of the

dangers with the kind of presentation made here is that it had nothing to do with

the case or the evidence before the jury. It presented a simplistic hypothetical

case, oddly described as a “criminal trial.” It used a visual in no way analogous to

13

the facts at issue and characterized the essential question as “[W]hat state is this?”

The hypothetical presented the answer to that question as a given, based not on

evidence received, but on the jurors‟ outside knowledge of what the geographical

outline of California looks like. What occurred here was not the legitimate

marshalling of evidence with charts outlining the facts or relating them to the legal

concepts explained in the jury instructions. Instead the prosecutor offered a

theoretical analogue, unrelated to the evidence, purporting to relate the exacting

process of evaluating the case to answering a simple trivia question. As noted,

judges and advocates have been repeatedly admonished that tinkering with the

explanation of reasonable doubt is a voyage to be embarked upon with great care.

Counsel trying to clarify the jury‟s task by relating it to a more common

experience must not imply that the task is less rigorous than the law requires. By

presenting a hypothetical whose answer involves a single empirical fact, the

prosecutor risked misleading the jury by oversimplifying and trivializing the

deliberative process.

There is a separate problem with the prosecutor‟s argument. It strongly

implied that the People‟s burden was met if its theory was “reasonable” in light of

the facts supporting it.

The prosecutor told the jury that in reaching its decision it must reject

impossible and unreasonable inferences, and only consider reasonable

possibilities. She stated that “your decision has to be in the middle. It has to be

based on reason. It has to be a reasonable account. . . . [Y]ou need to look at the

entire picture, not one piece of evidence, not one witness . . . to determine if the

case has been proven beyond a reasonable doubt.”

She then asked the jury to consider the following: “Is it reasonable to

believe that a shy, scared child who can‟t even name the body parts made up an

embarrassing, humiliating sexual abuse, came and testified to this in a room full of

14

strangers or the defendant abused Jane Doe. That is what is reasonable, that he

abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the

defendant for no reason or is the defendant guilty?” (Italics added.) She

continued: “Is it reasonable to believe that there is an innocent explanation for a

grown man laying on a seven year old? No, that is not reasonable. Is it reasonable

to believe that there is an innocent explanation for the defendant taking his penis

out of his pants when he‟s on top of a seven-year-old child? No, that is not

reasonable. Is it reasonable to believe that the defendant is being set-up in what is

really a very unsophisticated conspiracy led by an officer who has never met the

defendant or he[’s] good for it? That is what is reasonable. He’s good for it.”

(Italics added.)

We observe at the outset that many parts of the prosecutor‟s argument were

unobjectionable. It is permissible to argue that the jury may reject impossible or

unreasonable interpretations of the evidence and to so characterize a defense

theory. (See, e.g., CALCRIM Nos. 224, 226.) It is permissible to urge that a jury

may be convinced beyond a reasonable doubt even in the face of conflicting,

incomplete, or partially inaccurate accounts. (See, e.g., CALCRIM Nos. 226,

300.) It is certainly proper to urge that the jury consider all the evidence before it.

(§ 1096; CALCRIM No. 220.)

Here, the prosecutor‟s argument began with what the jury could consider:

reasonably possible interpretations to be drawn from the evidence. While this is

an acceptable explanation of the jury‟s starting point, it is only the beginning.

Setting aside the incredible and unreasonable, the jury evaluates the evidence it

deems worthy of consideration. It determines just what that evidence establishes

and how much confidence it has in that determination. The standard of proof is a

measure of the jury‟s level of confidence. It is not sufficient that the jury simply

believe that a conclusion is reasonable. It must be convinced that all necessary

15

facts have been proven beyond a reasonable doubt. (Victor v. Nebraska (1994)

511 U.S. 1, 5 [“The government must prove beyond a reasonable doubt every

element of a charged offense”].) The prosecutor, however, left the jury with the

impression that so long as her interpretation of the evidence was reasonable, the

People had met their burden. The failure of the prosecutor‟s reasoning is manifest.

Section 1096, codifying the standard of proof, expressly provides that a

“reasonable” doubt is not a mere “ „possible‟ ” or “ „imaginary‟ ” doubt. In

People v. Romero (2008) 44 Cal.4th 386 (Romero), we approved the prosecutor‟s

argument that the jury must “ „decide what is reasonable to believe versus

unreasonable to believe‟ and to „accept the reasonable and reject the

unreasonable.‟ ” (Id. at p. 416.) We concluded that “[n]othing in [that]

explanation lessened the prosecution‟s burden of proof. The prosecution must

prove the case beyond a reasonable doubt, not beyond an unreasonable doubt.”

(Ibid.)

Conversely, it is error for the prosecutor to suggest that a “reasonable”

account of the evidence satisfies the prosecutor’s burden of proof. In State v.

Sappington (Kan. 2007) 169 P.3d 1107, the prosecutor told the jurors that they

were not required to “ „know beyond any doubt‟ ” that the defendant was guilty

and explained: “ „Remember our test is beyond a reasonable doubt. And is it

reasonable given that evidence that we have that [the defendant] is the one that

did this? And I suggest to you the answer is, yes, it is.‟ ” (Id. at p. 1113.) The

Kansas Supreme Court concluded that the prosecutor misstated the burden of

proof: “To convict a defendant of a crime, the jury must find that it has no

reasonable doubt as to the truth of each claim the State must prove. [Citation.]

Yet, as [defendant] argues, his prosecutor‟s statement suggests that a jury may

convict if the jury believes that it is merely „reasonable‟ that he committed the

crime. We conclude that this misstatement dilutes the State‟s burden because a

16

jury could convict due to its reasonable belief that a defendant committed a crime

while still having a reasonable doubt as to guilt.” (Id. at p. 1115.)

It is likewise error to state that “a defendant has a duty or burden to produce

evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford

(1997) 15 Cal.4th 1229, 1340; accord, People v. Ellison (2011) 196 Cal.App.4th

1342, 1353 (Ellison).) It is, and remains, the prosecutor‟s burden to prove the

case. If the defense chooses to produce evidence, the jury must, of course,

consider it as part of the complete record before it. To that end, the prosecution

can surely point out that interpretations proffered by the defense are neither

reasonable nor credible. Nevertheless, even if the jury rejects the defense

evidence as unreasonable or unbelievable, that conclusion does not relieve or

mitigate the prosecutorial burden. The prosecution cannot suggest that

deficiencies in the defense case can make up for shortcomings in its own. In

Ellison, for example, the prosecutor made several arguments to the effect that

“ „you have to look at whether or not it‟s reasonable or unreasonable for the

defendant to be innocent,‟ ” and to vote not guilty if “ „it‟s reasonable that the

defendant is innocent.‟ ” (Ellison, at p. 1351.) The appellate court concluded that

“the prosecutor improperly attempted to lessen the People‟s burden of proof by

arguing to the jury that the beyond-a-reasonable-doubt standard required the jury

to determine whether defendant‟s innocence was reasonable.” (Id. at p. 1353.)

Here, the prosecutor did not simply urge the jury to “ „accept the reasonable

and reject the unreasonable‟ ” in evaluating the evidence before it. (Romero,

supra, 44 Cal.4th at p. 416.) Rather, she confounded the concept of rejecting

unreasonable inferences, with the standard of proof beyond a reasonable doubt.

She repeatedly suggested that the jury could find defendant guilty based on a

“reasonable” account of the evidence. These remarks clearly diluted the People‟s

burden.

17

It is reasonably likely that the prosecutor‟s hypothetical and accompanying

argument misled the jury about the applicable standard of proof and how the jury

should approach its task.

B. Forfeiture

Although we have found the prosecutor‟s argument improper, the People

argue that defendant forfeited his claim of error by failing to object. As a general

rule, “ „[a] defendant may not complain on appeal of prosecutorial misconduct

unless in a timely fashion, and on the same ground, the defendant objected to the

action and also requested that the jury be admonished to disregard the perceived

impropriety.‟ ” (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez), quoting

People v. Thornton (2007) 41 Cal.4th 391, 454.) The defendant‟s failure to object

will be excused if an objection would have been futile or if an admonition would

not have cured the harm caused by the misconduct. (Hill, supra, 17 Cal.4th at p.

800.)

The issue was forfeited. A prosecutor‟s misstatements of law are generally

curable by an admonition from the court. (People v. Bell (1989) 49 Cal.3d 502,

548.) Such was the case in Otero, supra, 210 Cal.App.4th at page 873. Nothing

in this record indicates that an objection would have been futile. Nor was the

prosecutor‟s argument so extreme or pervasive that a prompt objection and

admonition would not have cured the harm.

C. Ineffective Assistance of Counsel

“A defendant whose counsel did not object at trial to alleged prosecutorial

misconduct can argue on appeal that counsel‟s inaction violated the defendant‟s

constitutional right to the effective assistance of counsel.” (Lopez, supra, 42

Cal.4th at p. 966.) Defendant advances that claim here. He bears the burden of

showing by a preponderance of the evidence that (1) counsel‟s performance was

18

deficient because it fell below an objective standard of reasonableness under

prevailing professional norms, and (2) counsel‟s deficiencies resulted in prejudice.

(Strickland v. Washington (1984) 466 U.S. 668, 688, 694 (Strickland); People v.

Ledesma (2006) 39 Cal.4th 641, 746; People v. Ledesma (1987) 43 Cal.3d 171,

216, 218.)

“Unless a defendant establishes the contrary, we shall presume that

„counsel‟s performance fell within the wide range of professional competence and

that counsel‟s actions and inactions can be explained as a matter of sound trial

strategy.‟ ” (People v. Ledesma, supra, 39 Cal.4th at p. 746, quoting People v.

Carter (2003) 30 Cal.4th 1166, 1211.) When the record on direct appeal sheds no

light on why counsel failed to act in the manner challenged, defendant must show

that there was “ „ “no conceivable tactical purpose” ‟ for counsel‟s act or omission.

[Citations.]” (People v. Lewis (2001) 25 Cal.4th 610, 675.) “[T]he decision

facing counsel in the midst of trial over whether to object to comments made by

the prosecutor in closing argument is a highly tactical one” (People v. Padilla

(1995) 11 Cal.4th 891, 942, overruled on another ground in Hill, supra, 17 Cal.4th

at p. 823), and “a mere failure to object to evidence or argument seldom

establishes counsel‟s incompetence” (People v. Ghent (1987) 43 Cal.3d 739, 772).

Nonetheless, deference to counsel‟s performance is not the same as

abdication. (People v. Ledesma, supra, 43 Cal.3d at p. 217.) “[I]t must never be

used to insulate counsel‟s performance from meaningful scrutiny and thereby

automatically validate challenged acts or omissions.” (Ibid.)

In this case, the problems with the prosecutor‟s argument were not difficult

to discern. Katzenberger, supra, 178 Cal.App.4th 1260, 1269, which disapproved

use of a puzzle showing the Statue of Liberty to “illustrate” the reasonable doubt

standard, provided firm grounds for an objection at the time of defendant‟s trial.

Additionally, counsel required no authority beyond section 1096 to conclude that

19

the prosecutor‟s argument urging the jury to convict based on a reasonable account

of the evidence misstated the burden of proof.

The People offer two possible tactical reasons for counsel‟s omission.

First, the prosecutor‟s hypothetical was nonresponsive to the defense argument

and simply a waste of time. Second, it suggested that the prosecutor carried a

heightened burden of proof because it presupposed strong evidence to establish its

conclusion. These arguments fail. “Explaining” the reasonable doubt standard by

using an iconic image unrelated to the evidence is particularly misleading to the

jury and strikes at the most fundamental issue in a criminal case. The image is too

powerful and pivotal to dismiss as irrelevant or trivial argument. Additionally, the

argument was aimed at lessening, not heightening, the burden of proof. The

prosecutor posited an easy example of proof beyond a reasonable doubt to reassure

this jury that it could confidently return guilty verdicts in a case not nearly so

strong as her hypothetical. The hypothetical, along with the prosecutor‟s

argument that the jury could convict based on a “reasonable” account of the

evidence, cannot conceivably be viewed as beneficial to the defense.

Additionally, because the prosecutor‟s hypothetical came in rebuttal,

defense counsel had no opportunity to counter it with argument of his own. His

only hope of correcting the misimpression was through a timely objection and

admonition from the court. Under these circumstances, we can conceive of no

reasonable tactical purpose for defense counsel‟s omission.

Defendant also bears the burden of showing prejudice, that is, a “reasonable

probability that, but for counsel‟s unprofessional errors, the result of the

proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.)

The day before closing argument, the trial court correctly instructed the jury on the

presumption of innocence, reasonable doubt, and the prosecutor‟s burden of proof.

It has often been emphasized that arguments of counsel “generally carry less

20

weight with a jury than do instructions from the court. The former are usually

billed in advance to the jury as matters of argument, not evidence, [citation], and

are likely viewed as the statements of advocates; the latter, we have often

recognized, are viewed as definitive and binding statements of the law.” (Boyde v.

California (1990) 494 U.S. 370, 384; accord Mendoza, supra, 42 Cal.4th at p. 703;

People v. Gonzalez (1990) 51 Cal.3d 1179, 1224, fn. 21, superseded by statute on

another ground, as stated in In re Steele (2004) 32 Cal.4th 682, 691.) “When

argument runs counter to instructions given a jury, we will ordinarily conclude

that the jury followed the latter and disregarded the former, for „[w]e presume that

jurors treat the court‟s instructions as a statement of the law by a judge, and the

prosecutor‟s comments as words spoken by an advocate in an attempt to

persuade.‟ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717.)

Based on these principles and the records before them, the Katzenberger

and Otero courts found the prosecutors‟ use of visual aids harmless in light of the

correct instructions on reasonable doubt, defense counsel‟s objections to the

argument, the trial courts‟ admonitions, and the strength of the evidence. (Otero,

supra, 210 Cal.App.4th at pp. 873-874; Katzenberger, supra, 178 Cal.App.4th at

pp. 1268-1269.) Those saving factors are not present here.

There was no reason for the jury to reject the prosecutor‟s hypothetical. It

did not directly contradict the trial court‟s instruction on proof beyond a

reasonable doubt, but instead purported to illustrate that standard. The prosecutor

introduced further confusion by suggesting that it was “reasonable” to believe that

defendant was guilty. Because there was no timely objection, the trial court did

not admonish the jury to disregard the prosecutor‟s argument. Thereafter the court

gave additional instructions focusing on lesser included offenses and explaining

the verdict forms. It repeated, in that context, that any verdict of guilt required

proof beyond a reasonable doubt. It did not, however, reinstruct on that concept.

21

As a result, the prosecutor‟s argument was the last word on the subject. (Compare

Mendoza, supra, 42 Cal.4th at p. 703 [prosecutor‟s misstatement of law was not

prejudicial because “[t]he trial court admonished the jury [citation] and gave them

the correct standard”]; Ellison, supra, 196 Cal.App.4th at p. 1353 [same]; Otero,

supra, 210 Cal.App.4th at p. 873 [same]; Katzenberger, supra, 178 Cal.App.4th at

pp. 1268-1269 [same].)

As the People concede, this was a very close case. The prosecution

depended almost entirely on Jane Doe‟s credibility, which was called into question

in several respects. Jane did not voluntarily report the alleged touching. It came

to light through an anonymous informant of unknown motive or veracity. Jane‟s

initial statement to police was not introduced into evidence. In her forensic

interview, although she claimed that defendant had lain on top of her four times,

she provided very few corroborating details. At trial, she repeatedly and

emphatically claimed no touching had occurred. After a series of leading

questions from the prosecutor, she changed her testimony and affirmed that

defendant had lain on top of her, but only twice. She refused to answer many of

the prosecutor‟s questions and admitted that she found them confusing. She

answered none of defense counsel‟s questions about the alleged touching on cross-

examination.7 The trial court observed that “this was an extraordinarily difficult

examination of this witness, both with respect to direct and cross-examination.”

Initially, Jane‟s father told deputies that he had seen defendant lying on top of

7 Indeed, counsel could well have argued that Jane‟s testimony should have

been stricken for lack of an opportunity for meaningful cross-examination.

(People v. Price (1991) 1 Cal.4th 324, 421; Fost v. Superior Court (2000) 80

Cal.App.4th 724, 735-736; 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at

Trial, § 240, pp. 349-350.) It appears that, as a tactical decision, defense counsel

thought it better to use Jane‟s inconsistencies and refusals to undermine her

credibility in hopes of an acquittal.

22

Jane. At trial, however, he recanted his statement in material respects, testifying

that defendant and the two children were reaching for a toy and that he was

unalarmed by the conduct. Defendant also took the stand and denied that any

inappropriate touching had occurred.

It was up to the jury to evaluate the various versions of events and to weigh

witness credibility in making its decision. Given the closeness of the case and the

lack of any corrective action, there is a reasonable probability that the prosecutor‟s

argument caused one or more jurors to convict defendant based on a lesser

standard than proof beyond a reasonable doubt. Accordingly, defendant‟s

convictions cannot stand.

III. DISPOSITION

The judgment of the Court of Appeal is reversed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

LIU, J.

ALDRICH, J.*

______________________________

* Associate Justice of the Court of Appeal, Second Appellate District,

Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of

the California Constitution.

23

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Centeno

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 214 Cal.App.4th 843

Rehearing Granted

__________________________________________________________________________________

Opinion No. S209957

Date Filed: December 4, 2014

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Cara D. Hutson

__________________________________________________________________________________

Counsel:

Jean Ballantine, under appointment by the Supreme Court for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,

Assistant Attorney General, Steven T. Oetting and Vincent P. LaPietra, Deputy Attorneys General, for

Plaintiff and Respondent.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jean Ballantine

12405 Venice Boulevard, #139

Los Angeles, CA 90066

(310) 398-5462

Vincent P. LaPietra

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2292

2