Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. (Super. Ct. No.07CF1621)
The opinion of the court was delivered by: Moore, J.
CERTIFIED FOR PUBLICATION
We find the prosecutor's use of a diagram of California to explain proof beyond a reasonable doubt was misconduct. Given the brief reference to the diagram, the court's instruction to the jury to disregard the diagram, and the substantial evidence in this case, we find the misconduct was harmless. We publish this opinion due to the number of cases that come before us wherein prosecutors have used similar diagrams or puzzles in connection with arguments about proof beyond a reasonable doubt. The manner in which these diagrams or puzzles are used trivializes the prosecution's burden to prove each element of a charged offense beyond a reasonable doubt and if their use continues, eventually the error will be prejudicial and result in a reversal of a conviction.
An amended information filed in the Orange County Superior Court charged defendant Luis Alberto Otero with four sex offenses against a child. He was charged in count one with aggravated sexual assault on a child under 14 years old and more than 10 years younger than defendant (Pen. Code,*fn1 § 269, subd. (a)(3)). The information provided additional notice to defendant by specifying the offense was committed by an act of sodomy at an apartment complex. Count two also alleged a violation of section 269, subdivision (a)(3) during the same time period (between November 1, 2004 and May 1, 2007) and stated the offense was committed by an act of sodomy in an alley. Count three alleged a lewd act on a child under 14 years of age (§ 288, subd. (a)) between April 8, 2003 and May 1, 2007, and consisted of a touching of the victim's vagina. Count four also charged a violation of section 288, subdivision (a) during the same time period and alleged the violation consisted of a separate touching of the victim's vagina.
O. was 14 years old at the time of trial. Defendant and O. are cousins. When O. was younger, she lived in an apartment in Santa Ana. Her maternal aunt, defendant's mother, lived in a nearby apartment with her children, including defendant. O. and her family used to live in an apartment on the same street as her aunt and her aunt's family.
Defendant's mother used to baby-sit O. when O. was six to nine years old. O. said when she was six years old defendant touched her in her "private place" where she goes "pee." Defendant touched her there more than once. The touching was skin to skin and continued when she was nine years old. On one occasion, O. was playing outside her apartment with friends when defendant asked her if she wanted to go to the 7-Eleven to get a slurpee. O. left her friends and walked with defendant toward the 7-Eleven. On the way, they turned into an alley where defendant began touching O.'s vaginal area with his hand. He also touched her backside. O. did not remember if defendant did anything else to her that day and did not remember telling a social worker defendant touched her bottom with his penis, but she did talk with a social worker and said she was honest in that conversation.
O. also testified about an incident in her apartment complex where defendant sodomized her by an elevator when she was nine years old. O. was not sure if the elevator incident happened before or after the incident in the alley.
A recording of O.'s interview by the social worker was played for the jury. During that interview, O. said the first time defendant touched her vaginal area with his hand, skin to skin, was when she was six years old and doing homework at the kitchen table in her aunt's house. She said that was the only time defendant touched her like that while she was six, but the touching resumed when she was nine years old. There was a time when she was nine, at her aunt's residence, and she locked herself in her aunt's bedroom. Defendant had a key to the bedroom, opened the door, and carried O. to the bed, where he started touching her. He again touched her vaginal area underneath her clothing.
O. also told the social worker defendant put his penis in her "butt" while they were in the alley on the way to the 7-Eleven. It hurt when he penetrated her. While O. denied any other incident of sodomy to the social worker, defendant confessed to police he sodomized O. once by an elevator after he had smoked some marijuana. A police officer who interviewed O. testified she told him about being molested by defendant since she was six years old and that defendant sodomized her twice since she was nine years old. She said the second time was on the way to the 7-Eleven.
Police interrogated defendant on May 9, 2007. Defendant waived his Miranda*fn2 rights and agreed to talk with the police. At first, defendant denied ever having sex with O. and said it would be wrong because she is a little girl. Later, he admitted having sodomized her on one occasion. He said it happened two years earlier, when he was 19 years old. Defendant said he had been to see his girlfriend and on his way home he obtained some marijuana and got high. He saw O. outside her residence. She told him she likes a boy and they want to have sex. She asked defendant if anal sex ...