[Copyrighted Material Omitted]
Super. Court of San Bernardino County. No. FVA801798, Cara D. Hutson, Judge. Court of Appeal, Fourth Appellate District, Division Two, No. E054600.
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.
Opinion by Corrigan, J., with Cantil-Sakauye, C. J., Baxter, Werdegar, Chin, Liu, Aldrich, JJ.[*], concurring.
[180 Cal.Rptr.3d 653] [338 P.3d 941]
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 [47 Cal.Rptr.2d 165, 906 P.2d 2] [338 P.3d 942] ( Medina ); People v. Otero (2012) 210 Cal.App.4th 865, 874 [148 Cal.Rptr.3d 812] ( Otero ); People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1269 [101 Cal.Rptr.3d 122] ( 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.
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.
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 [180 Cal.Rptr.3d 654] 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.
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 [338 P.3d 943] 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.
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 [180 Cal.Rptr.3d 655] 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.
The jury convicted defendant of two counts of committing lewd acts on a child under the age of 14,  and one misdemeanor count of annoying or molesting a child under the age of 18.  He was sentenced to five years in prison.
The trial court gave the majority of its instructions the day before closing arguments. Those instructions included ...