Prosecutor’s use of diagram to illustrate reasonable doubt standard and argument urging conviction based on “reasonable” view of the evidence likely misled jury about the applicable standard of proof. Centeno was convicted of two counts of lewd acts against a minor under the age of 14 (Pen. Code, § 288, subd. (a)). During the prosecutor’s closing rebuttal, she showed the jurors an outline of the geographical boundary of California and then asked, hypothetically, if they could identify what state was shown beyond a reasonable doubt if provided with the following evidence: (1) a witness’ testimony that the state is located next to a state where you can go gamble, (2) a witness’ testimony that there is a city on the state’s coast called “Fran-something” where there are cable cars and a beautiful bridge, and (3) another witness’ testimony that the city of San Diego is located in the northern part of the state. The prosecutor said that the jurors should easily be able to find, beyond a reasonable doubt, that the state is California because “You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt.” The prosecutor also argued that it was “reasonable” to believe that Centeno abused the minor based on the evidence. On appeal, Centeno argued that the prosecutor committed misconduct and that his attorney was constitutionally ineffective for failing to object. The Court of Appeal affirmed and Centeno petitioned for review. Held: Reversed. The prosecutor’s visual aid and argument constituted misconduct. The use of iconic images that are unrelated to the facts of the case, like the shape of California, to demonstrate the reasonable doubt standard “trivialize the deliberative process, essentially turning it into a game that encourages the jurors guess or jump to conclusions.” Further, the prosecutor’s repeated suggestions that the jury could find the defendant guilty based on a “reasonable” account of the evidence diluted the People’s burden and likely misled the jury.

Defense counsel’s failure to object to prosecutor’s inappropriate visual aid and argument during closing rebuttal amounted to ineffective assistance of counsel. Although the prosecutor committed misconduct, defense counsel did not object, and the failure to object forfeited the claim. However, the court agreed with Centeno that his counsel’s inaction violated his constitutional right to effective assistance of counsel. The prosecutor’s diagram and argument were misleading and aimed at lessening the prosecution’s burden of proof. Existing case law specifically disapproved of similar visual aids (see People v. Katzenberger (2009) 178 Cal.App.4th 1260) and Penal Code section 1096 provided authority to argue that the prosecutor clearly misstated the burden of proof. Because the prosecutorial misconduct occurred during rebuttal, defense counsel’s only hope of correcting the mistaken impression regarding the burden of proof was through a timely objection and admonition from the court. The Supreme Court concluded there was no reasonable tactical purpose for counsel to not object in these circumstances. The failure to object was also prejudicial. Although courts typically assume that jurors disregard closing arguments that conflict with instructions, here the conflict was not apparent because the visual aid and argument purported to illustrate the reasonable doubt standard and were the last word on the subject. Furthermore, the case was very close. The prosecution depended almost entirely on the credibility of the victim, who gave conflicting testimony during trial as to whether Centeno had inappropriately touched her. The victim’s father also recanted his out-of-court statements that had inculpated Centeno. Under these circumstances, there is a reasonable probability that the prosecutor’s argument caused one or more jurors to convict Centeno based on a lesser standard than proof beyond a reasonable doubt and his convictions must be reversed.