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People v. Cowan

California Court of Appeals, Second District, Sixth Division

February 23, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
RONALD J. COWAN, Defendant and Appellant

          Superior Court of San Luis Obispo County, No. F493872, Jacquelyn H. Duffy, Judge.

Page 1153

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

Page 1154

         Kamala 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 Respondent.

         Gilbert, P. J., with Yegan and Perren, JJ., concurring.

          OPINION

          [214 Cal.Rptr.3d 578] GILBERT, P. J.

          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 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] ( 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');">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.

          [214 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

Page 1155

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.

         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 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.

Page 1156

         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 [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.

         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 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 ...


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