Filed 2/23/17 (after order vacating prior opn.)
                   CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                  DIVISION SIX

THE PEOPLE,                                           2d Crim. No. B258587
                                                     (Super. Ct. No. F493872)
     Plaintiff and Respondent,                      (San Luis Obispo County)

v.                                                OPINION FOLLOWING ORDER
                                                   VACATING PRIOR OPINION
RONALD J. COWAN,

     Defendant and Appellant.


             The prosecutor achieved a victory at trial, but it was
a Pyrrhic victory. The gain of a conviction at trial led to a loss on
appeal.
             In rebuttal, during closing argument, the prosecutor
told the jury, “Let me tell you that presumption [of innocence] is
over. Because that presumption is in place only when the
charges are read. But you have now heard all the evidence. That
presumption is gone.” She buttressed this grossly inaccurate
explanation of reasonable doubt with the erroneous statement
that the jury’s decision regarding defendant’s guilt is just an
ordinary decision people make “a hundred times a day.”
             A prosecutor may not mislead jurors with false and
misleading statements concerning the law. This disreputable
tactic lightens the prosecutor’s burden and threatens the
integrity of our system of justice.
             On August 24, 2016, our Supreme Court granted
Cowan’s petition for review. It transferred Cowan’s appeal to us
with directions to vacate our opinion and reconsider the cause in
light of People v. Centeno (2014) 60 Cal.4th 659 (Centeno).
             In light of Centeno, the prosecution’s win-at-all-costs
strategy pushed this case over the precipice of reversal. (Centeno,
supra, 60 Cal.4th 659.) The trial court read to the jury the proper
instruction concerning reasonable doubt, among other numerous
instructions. The court told the jury that its instructions prevail
if there are conflicts between its instructions and counsel’s
arguments. But this was before the prosecutor argued to the jury
her misguided version of reasonable doubt. The court’s earlier
instruction was insufficient to overcome the prejudice the
prosecutor’s grossly improper argument bought to the minds of
the jurors. The prosecutor’s definition was the last explanation of
reasonable doubt the jury heard.
             At that moment the trial judge would have been well
advised to inform the jurors that the prosecutor had misstated
the law and to again read to the jurors the reasonable doubt
instruction. We offer this suggestion not as a rule to follow in
every case when counsel misrepresents the law or evidence. In
the extreme case, however, when the law is so misrepresented
that the case is likely infected with prejudicial error, the trial
court must intercede to ensure a fair trial.
             We caution prosecutors to observe and respect the
law and not rely on harmless error as a safety net to ensure a
conviction. The integrity of our system of justice demands
nothing less.




                                 2
             A jury found Ronald J. Cowan guilty of one count of
sodomy of a person under age 10 (Pen. Code, § 288.7, subd. (a)1);
two counts of oral copulation with a person under age 10 (§ 288.7,
subd. (b)); and two counts of lewd acts on a child (§ 288, subd.
(a)). The jury also found true that both counts of lewd acts on a
child involved substantial sexual conduct. (§ 1203.066, subd.
(b).) The trial court sentenced Cowan to 65 years to life. We
reverse.
                                FACTS
             Cowan had a relationship with a woman named
Keena. After the relationship ended, Cowan continued to visit
Keena’s family. He paid particular attention to Keena’s younger
brother D., who was then eight years old. He bought D. clothes
and other gifts and took him on outings. D. and his friends
stayed overnight at Cowan’s home.
             When D. became a teenager, Cowan turned his
attention to D.’s cousin, A.J., who was born in November 2007.
A.J. lived with his mother, his grandmother, and periodically
with his grandfather.
             Cowan would visit A.J. five times a week for hours at
a time. He would bring him gifts every week and took him
places. Between the time A.J. was two and four, Cowan was
alone with him on more than 10 occasions.
             When A.J. was three or four, he spent the night at
Cowan’s home. Cowan called A.J.’s mother to tell her he was
bringing A.J. back because he was crying. Cowan returned A.J.
between 11:30 p.m. and midnight. When A.J. got home, he could
not stop crying. He kept touching his buttocks and saying it

   1All statutory references are to the Penal Code unless
otherwise stated.



                                3
hurt. A.J.’s mother and grandmother thought A.J. might have a
rash. A.J.’s mother put diaper rash cream on him, but she saw
no sign of anything wrong. It took several hours for A.J. to fall
asleep.
             In March 2012, A.J.’s mother was incarcerated and
lost custody of her children. A.J., who was four and one-half
years old, and his two-year-old sister were placed in foster care
with C.C. A.J. lived with C.C., her husband and children for 18
months.
             Within days of A.J.’s arrival, C.C. noticed A.J.
exhibited sexualized behavior. A.J. was playing with toys and
said, “I want to sex you.” He would frequently do pelvic
thrusting. Almost every time he got into the bathtub, he played
with his penis. He would rub his bottom on people, the furniture
and the wall.
             C.C. first met Cowan at a social services meeting
about a week after A.J. was placed with her. Cowan asked if he
could take care of A.J. and his sister part-time. The person
running the meeting said he would consider it. In the parking lot
after the meeting, Cowan came up to C.C. Cowan was teary-eyed
and said he missed A.J. He gave her some toys for A.J.
             On another occasion, Cowan walked up to C.C. teary-
eyed, said that he missed A.J. and really wanted to see him. He
asked C.C. if she could arrange a visit. C.C. told Cowan it was
against social services’ rules. Cowan told C.C. that he was a
mentor for boys. He used to be in the Big Brothers program, but
now he was doing it on his own.
             C.C. said Cowan was present almost every time A.J.’s
mother had unsupervised visits with her children. A.J.’s mother
had two visits a week. She also saw Cowan at A.J.’s birthday




                                4
party. C.C. said, “[Cowan] was there at every possible visit he
could be.”
             On the night of the birthday party, C.C. was putting
A.J. to bed when he asked if he could sleep in her bed. When
C.C. said no, A.J. told her that he had been in Cowan’s bed. She
asked A.J. why he was in Cowan’s bed. A.J. said because there
was nowhere else to sleep. When C.C. asked what they were
wearing, A.J. replied that they were both wearing pajamas, but
Cowan’s pants fell down.
             Shortly thereafter, one of C.C.’s sons reported that he
and his brothers were in their bedroom with A.J. They were
talking about school when A.J. blurted out, “[A] guy named Ron
put his wiener in [my] butt.” C.C. talked to A.J. the next
morning. A.J. confirmed that what he said the previous night
was true. C.C. called A.J.’s social worker to report what A.J.
said. While C.C. was waiting for the social worker to return her
call, she put A.J. down for a nap. One of C.C.’s sons walked into
the room and A.J. said, “Ron put his wiener in my butt.”
             The social worker returned C.C.’s telephone call and
told her to call the police. The police interviewed A.J. and took
him for a physical examination.
             C.C. spoke with A.J. on the evening after the physical
examination. She asked A.J. if he ever touched Cowan’s “wiener”
or if Cowan had touched his. A.J. said Cowan put A.J.’s penis in
his mouth and let A.J. touch his penis. A.J. said it happened at
Cowan’s house.
             C.C. testified A.J. frequently lied. When she would
see him do something wrong, he would lie and deny he did it. His
eyes would dart all around the room when he lied. When he told
her about what Cowan did, his demeanor was different. He was




                                 5
very serious, humble and calm. She believed A.J. was telling the
truth.
             A.J.’s mother testified that after she completed a
substance abuse program, Cowan helped her get an apartment so
she could get her children back. Cowan purchased furniture,
food, clothes and toys for the children. At one point Cowan asked
A.J.’s mother, if he stayed the night, “what if [A.J.] wanted to
sleep in the same bed [with] him.” She replied that if Cowan
stayed the night he would have to sleep on the couch.
             A.J.’s grandmother testified that her husband
sometimes watches pornography. The pornography does not
involve children. A.J. saw the pornography for a period of
seconds before grandmother’s husband turned it off.
             Grandmother’s husband testified that A.J. would
turn on the pornography and view it for about five minutes before
he told him to turn it off.
             District Attorney Investigator Tracy Nix interviewed
A.J. twice. The interviews were recorded and the recordings were
played for the jury.
             A.J. told Nix that Cowan put his “pee pee in [his]
butt.” A.J. said that it felt disgusting and that his penis felt like
a hard baseball bat. Using two anatomical dolls, A.J.
demonstrated what Cowan had done to him. A.J. also said that
he and Cowan had touched each other’s penises. After the
interview, A.J. took two anatomically correct dolls and had one
orally copulate the penis of the other. In the second interview,
A.J. described acts of oral copulation that Cowan had committed.
             A.J. was physically examined by Dr. Niska Abdul-
Cater, an expert in evaluating child sexual abuse. She found no
physical signs of abuse. She testified, however, that there are




                                 6
often no signs of sexual trauma in the anal area. Even when the
victim is examined within 72 hours, findings are made in only 5
to 30 percent of the cases. Oral copulation generally leaves no
physical signs.
              A.J. testified at trial. He was six years old at the
time. At first he denied remembering speaking to Nix. Then he
said he spoke to her about Cowan, and told her the truth. A.J.
also initially denied Cowan did anything to him. But when asked
if Cowan “put his pee-pee in [his] butt at some point,” A.J. said
yes; it happened at Cowan’s house and made him feel “[n]ot
comfortable.” A.J. said Cowan did nothing else to his private
parts. After the recording of A.J.’s interview with Nix was played
before the jury, A.J. said he told Nix the truth.
                               DEFENSE
              Cowan denied the allegations. He said he had been
in the court-appointed special advocate program, but he decided
to leave the program and mentor D. on his own. There was less
paperwork.
              D. had been at his home alone one time. A few other
times, D. and his friends slept at his house. When D. was around
17 years old and A.J. was two, Cowan started to spend more time
with A.J.
              A.J. had been to Cowan’s home only twice. Once was
with his mother. The other time they planned for A.J. to spend
the night. There was a bedroom on the third floor of Cowan’s
house. A.J. had been there on the night of the sleepover. Cowan
watched television with A.J., but later A.J. started whining and
wanted to go home. Cowan could not calm him, so he called A.J.’s
mother and took him home.




                                7
             Cowan helped A.J.’s mother get an apartment so that
she could get her children back from foster care. Cowan never
asked A.J.’s mother about sleeping in the same bed as A.J.
             Dawn Clove knew Cowan because her son was one of
D.’s friends. Her son spent time with Cowan. She trusted Cowan
and did not believe he did what he was accused of doing.
             Raymond Glove testified he has known Cowan for 10
years and has seen him interact with children. He does not
believe Cowan would do anything sexually inappropriate with
children.
             Doris McIntyre had been Cowan’s neighbor for 28
years. She had seen him interact with children in her family.
She does not believe he would have committed the charged
offenses.
             A forensic computer expert testified he recovered
approximately 20,000 images from Cowan’s computer hard
drives. There was some adult pornography. But there was no
child pornography.
                            DISCUSSION
             Cowan contends the prosecutor committed
misconduct in closing argument by misstating the presumption of
innocence and the burden of proof. We agree.
             It is improper for the prosecutor to misstate the law,
and in particular to attempt to reduce the People’s burden of
proof beyond a reasonable doubt. (People v. Marshall (1996)
13 Cal.4th 799, 831.) Improper comments violate the federal
Constitution when they constitute a pattern of conduct so
egregious that it infects the trial with such unfairness that it
denies the defendant due process. (People v. Hill (1998) 17
Cal.4th 800, 819.) Even where the improper comments fall short




                                 8
of this test, they may constitute misconduct under state law if
they involve the use of deceptive or reprehensible methods in an
attempt to persuade the court or jury. (Ibid.)
              If a charge of prosecutorial misconduct is based on a
prosecutor’s argument to the jury, the appellate court must
consider whether there is a reasonable likelihood the jury
construed or applied any of the challenged statements in an
objectionable manner. (People v. Cole (2004) 33 Cal.4th 1158,
1202-1203.) The court must consider the challenged statements
in the context of the argument as a whole to make its
determination. (Ibid.)
              The prosecutor argued the most basic tenet of
criminal law. She told the jury that the presumption of
innocence is in place “only when the charges are read” and that
the “presumption is gone” thereafter.
              The presumption of innocence is a fundamental
component of a fair trial under our system of criminal justice.
(Estelle v. Williams (1976) 425 U.S. 501, 503.) The presumption
of innocence continues during the taking of testimony and during
jury deliberations until the jury reaches a verdict. (People v.
Arlington (1900) 131 Cal. 231, 235.)
              It is misconduct to misinform the jury that the
presumption of innocence is “gone” prior to the jury’s
deliberations. It strikes at the very heart of our system of
criminal justice. Even a novice prosecutor should know not to
make such a fallacious statement to the jury.
              The People argue that Cowan did not preserve the
issue by failing to object and request an admonition. But Cowan
objected that the prosecutor was misstating the law. That is
sufficient to preserve the issue. The defendant is not required to




                                 9
use the word “misconduct” in raising the objection. The trial
court did not sustain the objection, but told the jury “this is
argument,” and cautioned the jury only to consider its
instructions.
             The People argue the prosecutor’s comments here
were similar to those declared not to be misconduct in People v.
Booker (2011) 51 Cal.4th 141. There the prosecutor told the jury:
“‘I had the burden of proof when this trial started to prove the
defendant guilty beyond a reasonable doubt, and that is still my
burden. It’s all on the prosecution. I’m the prosecutor. That’s
my job.’ [¶] ‘The defendant was presumed innocent until the
contrary was shown. That presumption should have left many
days ago. He doesn’t stay presumed innocent.’” (Id. at p. 183.)
             In rejecting the contention that the remarks
constitute misconduct, our Supreme Court stated: “Although we
do not condone statements that appear to shift the burden of
proof onto a defendant (as a defendant is entitled to the
presumption of innocence until the contrary is found by the jury),
the prosecutor here simply argued the jury should return a
verdict in his favor based on the state of the evidence presented.”
(People v. Booker, supra, 51 Cal.4th at p. 185.)
             But here the prosecutor did not simply argue that the
presumption of innocence had been overcome by the evidence.
Instead, she told the jury the presumption ends with the reading
of the charges. To put it another way, even before the evidence is
received, the presumption of innocence disappears. This is an
unfair attempt to lighten the prosecution’s burden of proof and
constitutes misconduct.
             The People’s reliance on People v. Cortez (2016) 63
Cal.4th 101 to show there was no misconduct is misplaced. In




                                10
Cortez, during his rebuttal argument, the prosecutor stated:
“‘The court told you that beyond a reasonable doubt is not proof
beyond all doubt or imaginary doubt. Basically, I submit to you
what it means is you look at the evidence and you say, “I believe I
know what happened, and my belief is not imaginary. It’s based
in the evidence in front of me.”’” (Id. at p. 130.) Defendant’s
counsel objected that the prosecutor misstated the law. Before
the court could rule on the objection, the prosecutor added,
“‘That’s proof beyond a reasonable doubt.’” (Ibid.) The majority
of our Supreme Court concluded the prosecutor’s statement,
taken in context, did not constitute misconduct.
             The prosecutor’s statement in Cortez is far less
inimical to the presumption of innocence than the prosecutor’s
statement here that the presumption of innocence is in place only
up to the time the charges are read. The majority
in Cortez described the prosecutor’s remarks as an “incomplete”
statement of the law. (People v. Cortez, supra, 63 Cal.4th at
p. 135.) The prosecutor’s statement here was not incomplete, it
was completely wrong.
             Not every argument by the prosecution constituted
misconduct requiring reversal. Cowan assigns as misconduct the
prosecutor’s statement that the jury must make a decision “[j]ust
like you make decisions a hundred times a day throughout your
day. That’s what you are going to do. And you are going to use
the standard of beyond a reasonable doubt using your reason.”
Cowan cites People v. Nguyen (1995) 40 Cal.App.4th 28, 36,
where the court strongly disapproved of arguments suggesting
the beyond-a-reasonable-doubt standard is used in everyday life.
             But a claim of prosecutorial misconduct is reviewable
only if the defendant makes a timely objection at trial and




                                11
requests the trial court to admonish the jury to disregard the
impropriety. (People v. Sapp (2003) 31 Cal.4th 240, 279.) Here
Cowan neither objected nor requested an admonition. Under the
circumstances, the matter is reviewable only if the admonition
would not have cured the harm. (Ibid.) Any harm could have
been cured by an admonition.
              Cowan also cites as misconduct the prosecutor’s
argument:
              “Beyond a reasonable doubt simply means that . . .
after consideration of all the evidence in totality you’re firmly
convince[d] that guilt is the only reasonable interpretation of the
evidence.
              “What makes sense? Isn’t it reasonable to conclude
that Ronald Cowan who likes to surround himself with young
boys; whom he pries away from working mothers who don’t have
a lot of time; whom he bribes with gifts, toys, money; whom he
bribes their families with toys, and gifts and money and sporting
events and sporting workout clothes, isn’t reasonable to believe
that the defendant committed these crimes. It’s not because he’s
creepy, it’s because he did these things.
              “Isn’t it reasonable to base your decision to convict
Ronald Cowan on the fact that he lavishes the boys with this
affection[?] He was obsessed with [D.] as he told you. [D.] got too
old to him, so he switched to A.J. . . .
              “Isn’t it a reasonable interpretation that A.J. came
home with a sore bottom because the defendant had sodomized
him? [A.J.] was crying because his trusted friend had betrayed
him by molesting him? Isn’t a reasonable interpretation of the
evidence to believe that this man [had so much access to A.J.]
and to convict this man because he had so much access . . . ; isn’t




                                12
it reasonable to convict him of these crimes? And isn’t it
reasonable after all, like I pointed out to believe that this man,
who has this cavalier attitude about sex. . . . [i]s [the] same man
who has the attitude towards A.J. and A.J. told you what he was
thinking. . . [?] Isn’t it reasonable to believe that the same man
who had that attitude from the stand is this man who didn’t care
what A.J. thought and who took from A.J. what he wanted[?]”
              The prosecutor made a similar argument
in Centeno, supra, 60 Cal.4th 659. The prosecutor told the jury:
“‘[Y]our 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.’” (Id. at p. 671.) 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 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?’” (Ibid.) 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.’” (Id. at pp. 671-672.) Our Supreme




                                13
Court concluded it was error for the prosecutor to suggest that a
reasonable account of the evidence satisfies the prosecutor’s
burden of proof. (Id. at p. 672.)
             Unlike the prosecutor in Centeno, the prosecutor here
prefaced her remarks with the statement that beyond a
reasonable doubt means “you’re firmly convince[d] that guilt is
the only reasonable interpretation of the evidence.” That is an
accurate statement of the meaning of beyond a reasonable doubt.
(See CALCRIM No. 224, stating in part: “[B]efore you may rely
on circumstantial evidence to find the defendant guilty, you must
be convinced that the only reasonable conclusion supported by
the circumstantial evidence is that the defendant is guilty.”) The
prosecutor made the statement immediately before discussing
what is reasonable. The jury would understand the prosecutor’s
discussion of the reasonable interpretation of the evidence to be
linked to her statement that the jury must be firmly convinced
that guilt is the only reasonable interpretation of the evidence.
But the prosecutor told the jury reasonable doubt ends when the
case begins.
             We acknowledge that the prosecution evidence here
is stronger than that in Centeno. Cowan showed an obsessive
interest in victim A.J. He would visit A.J. five times a week for
hours at a time; he would bring him gifts and take him places.
When A.J. was placed in foster care, Cowan asked if he could
take care of A.J. part-time. He tearfully approached A.J.’s foster
mother, C.C., and asked if he could visit A.J.
             When A.J. spent the night at Cowan’s house, Cowan
brought him home crying late at night. A.J. kept touching his
buttocks and saying it hurt. It took A.J. several hours to fall




                               14
asleep. Thereafter, A.J. blurted out to C.C.’s sons that “a guy
named Ron put his wiener in his butt.”
             Cowan points out that A.J.’s testimony was
inconsistent about what occurred. But A.J. was only six years old
when he testified. Most adults would find it difficult to testify
about sexual matters in front of a jury, no less a six-year-old.
             Cowan claims A.J. learned about sex while observing
his grandfather watch pornography. But Cowan brought A.J.
back to A.J.’s mother’s house after spending the evening alone
with Cowan. A.J. was crying inconsolably and complaining that
his buttocks hurt. That was not the result of viewing
pornography and appears to be consistent with A.J.’s
spontaneous statement that “a guy named Ron put his wiener in
his butt.”
             Evidence that supported the defense include Cowan
pointing out that C.C. testified A.J. frequently lied. Initially,
C.C. did not know whether to believe A.J. when he told her what
Cowan had done. But C.C. also testified that, after speaking with
A.J., she became convinced he was telling the truth. A.J. did not
behave as he did when he was lying.
             In Centeno, the main thrust of the opinion was the
prosecutor’s use of a diagram showing the geographical outline of
California. Centeno pointed out that “[c]ourts have repeatedly
cautioned prosecutors against using diagrams or visual aids to
elucidate the concept of proof beyond a reasonable doubt.”
(Centeno, supra, 60 Cal.4th at p. 662.) The prosecutor argued
that, even if the evidence of what the diagram showed was filled
with inconsistencies, omissions and inaccuracies, the jury would
have no reasonable doubt that the state was California. Our
Supreme Court determined that the presentation constituted




                               15
misconduct. It invited the jury to conclude without evidence that
the diagram showed the state of California and failed to reflect
the evidence in the case, which was “far from definitive.” (Id. at
p. 670.)
             Here the prosecutor's inaccurate definition of
reasonable doubt left in the minds of the jurors an image as
graphic as a map. This was the last explanation about
reasonable doubt the jury heard.
             In Centeno, prejudice arising from misconduct
required reversal. Our Supreme Court pointed out that the
prosecutor’s presentation did not directly contradict the trial
court’s instruction on proof beyond a reasonable doubt. (Centeno,
supra, 60 Cal.4th at p. 676.) But here the prosecutor’s
misconduct did.
             The judgment is reversed.
             CERTIFIED FOR PUBLICATION.




                                     GILBERT, P. J.

We concur:



             YEGAN, J.



             PERREN, J.




                                16
                   Jacquelyn H. Duffy, Judge

           Superior Court County of San Luis Obispo

                ______________________________



            Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant.

            Kamala D. Harris, Attorney General, Gerald A.
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
Supervising Deputy Attorney General, David F. Glassman,
Deputy Attorney General, for Plaintiff and Respondent.




                               17
