California Court of Appeals, Second District, Sixth Division
Superior Court of San Luis Obispo County, No. F493872,
Jacquelyn H. Duffy, Judge.
L. Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Paul M. Roadarmel, Jr., and David F.
Glassman, Deputy Attorneys General, for Plaintiff and
P. J., with Yegan and Perren, JJ., concurring.
Cal.Rptr.3d 578] GILBERT, P. J.
prosecutor achieved a victory at trial, but it was a Pyrrhic
victory. The gain of a conviction at trial led to a loss on
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."
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.
August 24, 2016, our Supreme Court granted Ronald J.
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');">60 Cal.4th 659 [180 Cal.Rptr.3d 649, 338 P.3d 938] (
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');">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 brought to the minds of the jurors. The
prosecutor's definition was the last explanation of
reasonable doubt the jury heard.
Cal.Rptr.3d 579] 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.
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
found Ronald J. Cowan guilty of one count of sodomy of a
person under age 10 (Pen. Code, § 288.7, subd. (a));
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.
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.
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
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.
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
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.
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.
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.
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.
another occasion, Cowan walked up to C.C. teary-eyed, said
that he missed [214 Cal.Rptr.3d 580] 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.
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 party. C.C. said, " [Cowan] was there at every
possible visit he could be."
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