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.




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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




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