PEOPLE v. CENTENOAppellant’s Petition for ReviewCal.April 19, 2013Ce aA Og5"y GD supreme cour’ Sio9 FILES Supreme Court No. APR 1§ 2013 Frank A. McGuire Cjerk Deputy PEOPLE OF THE STATE OF CALIFORNIA, ) Court ofAppeal No. - ) E054600 Plaintiff and Respondent, ) ) San Bernardino vs. ) No. FVA801798 ) JONIS CENTENO, ) ) Defendant, Appellant, and Petitioner. ) ) Appeal from the Superior Court, San Bernardino County Hon.Cara D. Hutson, Judge Petition for Review from Published Opinion ofthe Court ofAppeal, Fourth Appellate District, Division Two PETITION FOR REVIEW Jean Ballantine, SBN 93675 12228 Venice Boulevard, #152 Los Angeles, CA 90066 (310) 398-5462 Attorney for Appellant/Petitioner Jonis Centeno By Appointment ofthe Court ofAppeal Underthe Appellate Defenders,Inc. Independent Case System coA Table of Contents Table ofAuthorities Petition for Review Questions Presented for Review Necessity for Review Statement ofthe Case and Facts Argument I Il I IV The Prosecutor’s Improper Closing Argument, Misstating the Prosecution’s Burden of Proving the Offenses Beyond a Reasonable Doubt, Effectively Reduced the Burden of Proof, Depriving Petitioner of Due Process under the Fourteenth Amendment. Trial Counsel’s Failure to Object and Obtain Admonitions Deprived Petitioner of Effective Counsel in Violation of the Sixth Amendment. These Prejudicial Federal Constitutional Errors Require Reversal. Defense Counsel ProvidedIneffective Assistance in Failing to Object to the Misstatements ofthe Reasonable DoubtBurden of Proof. Petitioner Provedby a Preponderance ofEvidence That He Was a Minor at the Time of the Offenses. The Superior Court Therefore Acted in ExcessofJurisdiction in Trying Petitioner and Sentencing Him to State Prison. By Failing to Consider Probation as a Sentencing Option,the Trial Court Abusedits Discretion in Violation of Petitioner’s Federal Due Process Rights, Requiring Remand for a New Sentencing and Probation Hearing. 14 17 32 Table of Contents (cont.) Vv To the Extent the Trial Court Relied on the Outdated and Incorrect Probation Report to Deny Probation, Petitioner Was Denied Due Process and the Case must Be Remanded for a New Sentencing Hearing. Conclusion Word Count Exhibit A - Court ofAppeal Opinion (attached to Supreme Court copies only, Rule 8.504(b)(4) Proof of Service -ii- 35 37 37 Table of Authorities Federal Cases Page Darden v. Wainwright (1986) 477 U.S. 168 .......0..0 0.0... a ee9 Gagnonv. Scarpelli (1973) 411 U.S. 778 .............. bee e eee ee 34 Hicks v. Oklahoma (1980) 447 U.S. 343 2.0.0... cece eee eee eee31 In re Winship (1970) 397 US. 358 2.0.0... cece cc cee ee ee 6, 9, 10 Jackson v. Virginia (1979) 443 U.S. 307 2.000. ce ee cece eee 9 Strickland v. Washington (1984) 466 U.S. 668 .................0.. 14 Townsend v. Burke (1948) 334 U.S. 736 ....... acne de eee ecb e eens 36 United States v. Safirstein (9th Cir.1987) 827 F.2d 1380 ............. 37 United States v. Tucker (1972) 404 U.S. 443 .........obec eee eee 37 United States v. Weston (9th Cir.1971) 448 F.2d 626 ...........2... 37 Victor v. Nebraska (1994) 511 U.S.1 ..............eee cece ewes 10 State Cases Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 .............. 14 College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704 .... 14,17 In re Harris (1993) 5 Cal.4th 813 ..........0..0.0....00. 18, 19, 29-31 In re Mikkelsen (1964) 226 Cal.App.2d 467 ...................... 30 In re Scott (2003) 29 Cal.4th 783 2.0.0... 0 occ ccc cece cece 14 In re Shanea J. (1984) 150 Cal.App.3d 831 ..........co eeeeeeeee. 31 -iii- Table of Authorities (cont.) State Cases Page In re Sidney M. (1984) 162 Cal.App.3d 39 ..........02.......20. 19, 29 In re Steele (2004) 32 Cal.4th 682 ....... 0... eeeee eee 9 Jimmy H. v. Superior Court (1970) 3 Cal.3d 709 ............2...... 23 Jose D. v. Superior Court (1993) 19 Cal.App.4th 1098 ........ 19, 29, 31 People v. Johnson (1980) 26 Cal.3d 557 0.2.2... eee eee ee 19 People v. Arbuckle (1978) 22 Cal.3d 749 ......... 2.0... eee eee eee 36 People v. Bell (1989) 49 Cal.3d 502 2.20... cece cee ee eee 8 People v. Blackwell (2011) 202 Cal.App.4th 144 ............... 18, 28 People v. Bolton (1979) 23 Cal.3d 208 ......... cece eee e eee e eee 8 People v. Coddington (2000) 23 Cal.4th 529 ........... 00. c eee 14 People v. Eckley (2004) 123 Cal-App.4th 1072 ......... vee cece eee 36 People v. Franco (1986) 181 Cal.App.3d 342 ..................005- 34 People v. Frye (1998) 18 Cal.4th 894 2.2.2...eee ee 9 People v. Garcia (1975) 54 Cal.App.3d 61 20... 20... 2. ccc cece eee 10 People v. Gonzalez (1990) 51 Cal.3d 1179 0...eens 9 People v. Hill (1998) 17 Cal.4th 800 ....... 0...cee 8 People v. Holt (1944)25 Cal.2d 59.0... ccc cccccccceeeeeseee. 20 People v. Hutson (1963) 221 Cal.App.2d 751 ...............000005 33 -iv- Table of Authorities (cont.) State Cases Page People v. Jeffers (1987) 43 Cal.3d 984 2.0.0... cece eee 35 People v. Johnson (1999) 70 Cal.App.4th 1429 .................... 37 People v. Johnson (2004) 119 Cal.App.4th 976 ........... . 2,5, 10, 11 People v. Katzenberger (2009) 178 Cal.App.4th 1260 ....... 2,5, 12, 13 People v. Ledesma (1987) 43 Cal.3d 171 ...........eee eee eee 14, 30 People v. Mendoza (2007) 42 Cal.4th 686 .............0.c00- eee ee. 8 People v. Minor (2010) 189 Cal.App.4th 1...............-..--5... 34 People v. Morales (2001) 25 Cal.4th 34 2.000.000. ccc e cece cece. 9 People v. Nguyen (1990) 222 Cal.App.3d 1612 ................. 18, 28 People v. Nguyen (1995) 40 Cal-App.4th 28 ....... wee teen eee 8 People v. Otero (2012) 210 Cal.App.4th 865 .............. 2,5, 12-13 People v. Parson (2008) 44 Cal.4th 332 .....0.....0.00cc cece. 9 People v. Peterson (1973) 9 Cal.3d 717 2.00.0... cece cece ccc e ee. 36 People v. Quiroz (2007) 155 Cal.App.4th 1420 .....eee eee ences 18,28 People v. Ramirez (2006) 143 Cal.App.4th 1512 ................ 33, 34 People v. Reyes (1974) 12 Cal.3d 486 .............0..0002.-0.... 20 People v. Rich (1988) 45 Cal.3d 1036 .................0.-.-..... 14 People v. Rojas (1962) 57 Cal.2d 676... 2.000. e cece c cece cece ee. 37 Table of Authorities (cont.) State Cases Page People v. Soojian (2010) 190 Cal.App.4th 491 .............0.0008. 17 People v. Staten (2000) 24 Cal.4th 434 ............ 0.0.0. 0008. 14, 30 People v. Superior Court (Jones) (1998) 18 Cal.4th 667 .... 19, 23, 28-29 People v. Surplice (1962) 203 Cal.App.2d 784 ..............00. 33, 35 People v. Tafoya (2007) 42 Cal.4th 147 ................eee ee eeee 9 People v. Tang (1997) 54 Cal.App.4th 669 ..............0.2.2006. 36 People v. Thompson [(1989) 214 Cal.App.3d 1547) ............. 32, 34 People v. Wilds (N.Y.App.Div.1988) 141 A.D.2d 395 .........Lees 12 Rucker v. Superior Court (1977) 75 Cal.App.3d 197 ...... .... 19, 29, 30 Schumacher v. Bedford (1957) 153 Cal.App.2d 287 ................ 28 Constitutions California Constitution Article I, section 15 ............... wee c eect eee eee eees 3, 30 United States Constitution Sixth Amendment .......... 0.00... cece ee eee eee eee 4, 14, 30 Fourteenth Amendment ..................05. 3-4, 9, 14, 30-31 Jury Instructions CALJIC Inst. No. 2.90 2...ccce cee eee eee eee neees 11 -vi- Table of Authorities (cont.) Statutes and Court Rules Page California Rules of Court Rule 8.500... 0.0.ccc ee ne enc eveeceeece 1-2 Penal Code Section 288(a) 6... 2.ccc ce eee cece cence cease 31, 34 Section 288.1 0.0.0... ccc eee cece cence ecuceas 32, 34 Section 647.6 0.0... 0... ccc cece cece cece eee eeceeees 31 Section 1203 ......... 0.0. cece cee cee cece ent eueeus 33, 37 Section 1203.066 ..... 0.0... 0. cc cece cece enc eueeeees 33 Welfare & Institutions Code Section 602 ....... 0.0 ccc ccc cece cece eee neeecencue 29 Section 604 2.0.0.0... 0c cc ec cece cee cece cee nee 17-19, 28 Section 702 0.0.0... 0c ccc cee cee cee nent eeuceences 30 Section 707 2.0... cece ee cee cence ee eeeeeceas 18, 31 -Vil- Supreme Court No. IN THE SUPREME COURTOF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA,) ) Plaintiff and Respondent, ) Appeal No. ) E054600 ) VS. ) ) Superior Court No. JONIS CENTENO, ) FVA801798 ) Defendant, Appellant, and Petitioner. _) ) PETITION FOR REVIEW To the Honorable Tani Cantil-Sakauye, Chief Justice, and the Honorable Associate Justices of the California Supreme Court: 7 Pursuant to rule 8.500(a)(1), California Rules ofCourt, petitioner Jonis Centeno, through counsel, respectfully requests this Court review the published opinion of the Fourth District Court of Appeal, Division Two, in Appeal No. E054600, San Bernardino Superior Court No. FVA801798, issued March 19, 2013 (Exhibit A hereto). Amongothererrors, the published opinion creates a split of authority by holding that the prosecutor did not misstate the reasonable doubt standard by using a hypothetical “What State is this?” puzzle with missing and incomplete information,andtelling the jury it can decide the case beyond a reasonable doubt even with missing or inaccurate information, by accepting the reasonable, rejecting the unreasonable, and reaching a decision in “the world ofpossibilities” ...‘that has to be in the middle.” (3RT 614-615) That is not the legal description ofproofbeyond a reasonable doubt, but somefar lesser standard, and the opinion’s approval of the argumentis contrary to established authority, including People v. Johnson (2004) 119 Cal.App.4th 976, People v. Katzenberger (2009) 178 Cal.App.4th 1260 and People v. Otero (2012) 210 Cal.App.4th 865. This Court is requested to grant review ofthe published opinion which approvesthe prosecutor’s misstatementofthe law andcreates a split of authority on this important issue. Additional errors are also raised which should be reviewed by the Court, Review is sought pursuant to rule 8.500, subdivision (b)( 1), to secure uniformity of decision andto settle the important questions oflaw presented in this case. QUESTIONS PRESENTED FOR REVIEW 1. Does a prosecutor misstate the “beyond a reasonable doubt” standard ofproof, and effectively reduce the prosecution’s burden ofproof, by presenting the jury with a hypothetical puzzle called, “What Stateis this?” with missing and incomplete information,andtelling thejury it can decide the case beyondareasonable doubt even with missing or inaccurate information, by accepting the reasonable, rejecting the unreasonable, and reaching a decision in “the world ofpossibilities . . that has to be in the middle”? 2. Did the prosecutor’s misstatement of the burden of proof deprive petitioner of due process under the Fourteenth Amendment to the United States Constitution, and did defense counsel’s failure to object to the argumentconstitute ineffective assistance of counsel depriving petitioner of his right to effective assistance, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 15, ofthe California Constitution? 3. Where a defendant showsby a preponderance of evidencethat he was a minor at the time of a charged felony offense, and that he did not knowingly, intelligently, and advisedly waive his right to be tried as a juvenile, does conviction and sentencing as an adult in superior court constitute an excess of jurisdiction and deprive him of his rights to due process and effective representation. under the Sixth and Fourteenth Amendmentsto the United States Constitution? 4. When probation is a sentencing option, doesthe trial court’s refusal fromthe outset to considerwhether probationis appropriate, based on relevant factors, deprive a felony defendantos his federal due processrights under the Fourteenth Amendmentto the United States Constitution? 5.. Does felony sentencing in reliance on an outdated and incorrect probation report deny the defendant due process. under the Fourteenth Amendment? NECESSITY FOR REVIEW In a published opinion, the Court of Appeal has approved a prosecutor’s closing argument which misstates the prosecution’s “beyond a reasonable doubt” burdenofproof, contrary to established appellate authority, including People v. Otero (2012) 210 Cal.App.4th 865, People v. Katzenberger (2009) 178 Cal.App.4th 1260, and People v. Johnson (2004) 119 Cal.App.4th 976. _ The prosecutor told the jury it could decide the case beyond a reasonable doubt even with missing or contradictory evidence, likening the process to figuring out a “WhatState is this?” puzzle, where the state in question is next to a state where there is gambling, and has a town with cable cars and a beautiful bridge and other towns named Hollywood and Los Angeles. (3RT 615) The prosecutor then told the jury that determining reasonable doubt required “looking at a world of possibilities. There is the impossible, which you must reject, the impossible but unreasonable, which you must also reject, and the reasonable possibilities, and your decisionhas to be in the middle.” (3RT 615) Thepublished opinion holdsthatthe prosecutor’s argument, while “not eloquent,” did not misstate the reasonable doubt standard, but rather, “took a somewhatcircuitous path” to state a “poorly worded redundancy” of the reasonable doubt instruction. (Opinion,pp. 8-9.) The opinion creates a split in authority concerning the bounds within which a prosecutorcan be creative with the reasonable doubt standard. The issue presented hereis extremely significant. Every criminal case is subject to the overriding rule that the prosecution bears the burden of proving guilt by the beyond a reasonable doubt standard. Before the publication ofthe presentcase, it was clear that neither courts norprosecutors could get creative with, manipulate, trivialize, or demean that standard by likening it to a puzzle with a few missing pieces, or by discussing it in terms ofreasonablepossibilities. Our nation’s highest court has recognizedthevital role the reasonable doubt standardplays in the American schemeofcriminal procedure, and that due process requires enforcementofthat standard. (In re Winship (1970) 397 U.S.358, 363 [90 S.Ct. 1068, 25 L.Ed.2d 368].) Our courts have consistently cautioned against tinkering with the definition of reasonable doubt as stated in approvedjury instructions, Yet, prosecutors are alwayslooking for different and creative ways to argue the reasonable doubt standard in ways that diminish the prosecution’s burden ofproof. While perhaps only a few prosecutors in this state are presently aware ofthe published opinionin this case,it is only amatter oftime beforeit will becomepart oftheir lexicon and provide support for further diminishing the reasonable doubtstandard ofproofin argument. This Court is urged to grant review on this very significant issue to clarify that prosecutors may not diminish the reasonable doubt standard as allowed by the present opinion. The Court is also requested.to grant review on the additional issues presented herein. STATEMENT OF THE CASE AND FACTS The Factual and Procedural History found at pages 2 through 5 ofthe Court ofAppeal’s slip opinion (ExhibitA hereto), are adequate for purposes ofthis petition as supplemented by the additional factual information set forth in the arguments which follow. ARGUMENT I The Prosecutor’s Improper Closing Argument, Misstating the Prosecution’s Burden of Proving the Offenses Beyond a Reasonable Doubt, Effectively Reduced the Burden of Proof, Depriving Petitioner of Due Process under the Fourteenth Amendment. Trial Counsel’s Failure to Object and Obtain Admonitions Deprived Petitioner of Effective Counsel in Violation of the Sixth Amendment. These Prejudicial Federal Constitutional Errors Require Reversal. In closing argument, after defense counsel focused on reasonable doubt (3RT 599-602, 606, 609), the prosecutor responded in her finalclosing: [Defense counsel] spoke quite a bit about reasonable doubt. Basically, with reasonable doubt, you need to accept the _ reasonable andrejectthe unreasonable, andyour decision cannot be based on sympathy, prejudice, or speculation. It has to be based on the evidence in this case. (3RT 614) Theprosecutorthen presented a hypothetical puzzle called, “Whatstate is this?” to demonstrate reasonable doubt. Using a visualaid, she arguedthat various witnesses couldprovide incomplete information aboutthe puzzle—for example, that the state in question is right next to another state where they gamble, it has a great town called “Fran-something” with cable cars and a beautiful bridge, and other townscalled Los Angeles and Hollywood. The prosecutor arguedthis evidence, even if incomplete and combined with other inaccurate evidence, would show beyonda reasonable doubtthatthe state in question is California. (3RT 614-615) The prosecutor continued: 7 ... What you are looking at whenyou are looking at reasonable doubt is you are looking at a world ofpossibilities. There is the impossible, which you must reject, the impossible but unreasonable, which you must also reject, and the reasonable possibilities, and your decision hasto be in the middle. It has to be based onreason. It hasto be a reasonableaccount. And make no mistake about it, we talked about this-in jury selection, you need to look at the entire picture.... Youlook at the entire picture to determine if the case has been proven beyond a reasonable doubt. (3RT 615-616) The prosecutor subsequently argued it was not reasonableto believe in this case that the complaining witness made up herallegations, and that what wasreasonable wasthat the defendant abused her. (3RT 620) Again shetold the jury to “look at the world of possibilities, when you look at what is reasonable and unreasonable in the facts of this case, the defense theory is almost to the impossible, butit is certainly far from reasonable, and you must reject the unreasonable and accept the reasonable.” (3RT 621) The prosecutor’s argument misstated the law on thecritical issue of reasonable doubt, constituting prosecutorial misconductin argument. (People v. Hill (1998) 17 Cal.4th 800, 819, 829-830; People v. Bolton (1979) 23 Cal.3d 208, 213-214; People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36). Although counsel have “broaddiscretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law.” (People v. Mendoza (2007) 42Cal.4th 686, 702, quoting People v. Bell (1989) 49 Cal.3d 8 502, 538.) In particular, it is misconduct for counselto attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1215, superseded by statute on another pointin Jn re Steele (2004) 32 Cal.4th 682, 691.) Prosecutorial misconduct violates the due process clause of the Fourteenth Amendmentand requires reversal whenit “infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44; accord, Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 91 L.Ed.2d 144]; People v. Tafoya (2007) 42 Cal.4th 147, 176.) Under state law, a prosecutor who uses unfair methods commits misconduct even whenthose actions do not result ina fundamentally unfair trial. (People v. Frye (1998) 18 Cal.4th 894, 969; People v. Parson (2008) 44 Cal.4th 332, 359.) The due process. clause of the Fourteenth Amendment “protects a defendant in a criminal case against conviction ‘except on proof beyond a reasonable doubtofevery fact necessary to constitute the crime with which he is charged.’” (Jacksonv. Virginia (1979) 443 U.S. 307, 315 [99 S.Ct. 2781, 61 L.Ed.2d 560], quoting In re Winship (1970) 397 U.S.358, 364 [90 S.Ct. 1068, 25 L.Ed.2d 368, 375].) The reasonable doubt standard serves several functions: it gives substance to the presumption of innocence; it ensures against unjust convictions; and it reduces the risk of factual error in criminal cases. (In re Winship, supra, 397 U.S. at 363.) In order to find guilt beyond a reasonable doubt, the trier of fact must “reach a subjective state of near certitude ofthe guilt ofthe accused.” (/bid.) “{C]ourts must avoid defining reasonable doubt so as to lead the jury to.convict on a lesser showing than due process requires.” (Victor v. Nebraska (1994). 511 U.S. 1, 22 [114 S.Ct. 1239, 127 L.Ed.2d 583].) The statutory language of thereasonable doubt standard “has with near, ifnot complete, universality been accepted as the best definition of the concept of proof beyond a reasonable doubt. Well intentionedefforts to ‘clarify’ and ‘explain’ these criteria have had the result of creating confusion and uncertainty, and have repeatedly been struck down by the courts of review of this state.” (People v. Garcia (1975) 54 Cal.App.3d 61, 63.) The prosecutor’s argument that the jury’s task was to accept whatis reasonable within the “world of possibilities ... that has to be in the middle” (3RT 614-615, 621) told the jury it could convict the defendantif, from the evidence, it merelyfound that it was reasonably possible within the world of possibilities that he was guilty. That is not the legal description of proof beyond a reasonable doubt, but some far lesser standard. Similar argument was disapproved in People v. Johnson (2004) 119 Cal.App.4th 976, where the 10 The prosecutor also misstated the burden of proof when she told the jury it could decide the case beyond a reasonable doubt even with missing or contradictory evidence, likening the process to figuring out a“What state is this?” puzzle, where the state in question is next to a state where there is gambling, and has a town with cable cars and a beautiful bridge and other towns named Hollywood and Los Angeles. (3RT 615) Use ofa similar puzzle in argumentconstituted misconduct in People v. Katzenberger (2009) 178 Cal.App.4th 1260, where the prosecutor showed the jury a series ofslides in which six puzzle pieces ofa picture ofthe Statue of Liberty came into view oneafter another, and in Peoplev. Otero, supra, 210 Cal.App.4th 865, where the prosecutor used the same, “Whatstate is this?” puzzle as was usedin the presentcase. The Katzenberger court concluded the prosecutor’s use of the slide show misrepresented the standard of beyond a reasonable doubtin two respects. (178 Cal.App.4th at 1266-1268). First, it improperly suggested that proof beyond a reasonable doubt can be met with only a few pieces of evidence, based on which the jury may jump to a conclusion, “a process completely at odds with the jury’s serious task ofassessing whether the prosecution has submitted proofbeyond a reasonable doubt.” (/d. at 1267; see also, People v. Wilds (N.Y.App.Div.1988) 141 A.D.2d 395, 397-398, 529 12 trial court engaged jurors in a lengthy discussion of the reasonable doubt standard, repeatedly implying that the standard involved deciding what was “reasonable” in much the same mannerthat the jurors would decide various everyday matters, such as what restaurant to choose for lunch and whether to assumethat traffic lights were operating. correctly. (Johnson, supra, 119 Cal.App.4th at pp. 981-982.) The prosecutor picked up on this theme in closing argument, urging that although the defense account of events was “possible,” “clearly it’s not reasonable.” (Jd. at p. 984.) The prosecutor added: “And that’s the question, ladies and gentlemen. That’s the threshold you have. [{] Anything is possible. Anything is possible, but it’s not reasonably possible.” (/d. at p. 984.) Johnson held that this discussion unfairly lowered the prosecution’s burden ofproofby equating it with something like the preponderance of the evidence standard that might be employed in everyday decision-making. (Johnson, supra, 119 Cal.App.4th at p. 785)CALJIC No. 2.90 on reasonable doubt did not cure the error.(See id. at pp. 786-787.) Here, similarly, the prosecutor’s argument misrepresented the correct legal standard which places the burdenentirely on the prosecution to proveits case beyond a reasonable doubt. 11 N.Y.S.2d 325, 327, discussed in Katzenberger [analogy of jigsaw puzzle depicting Abraham Lincoln].) Second, by arguing that identification of the Statue of Liberty picture with six of eight pieces in place was beyond a reasonable doubt, the prosecutor improperly suggested a quantitative measure of reasonable doubt, 75 percent. (178 Cal-App.4th at 1268). _ Similarly, Division Three of the Fourth District Court of Appeal specifically noted that it was publishing its opinion in People v. Otero, supra, 210 Cal.App.4th 865, 867, because prosecutors’ use ofphysical diagram or puzzles (in Otero, the same “Whatstate is this?” puzzle as wasused here), “trivializes the prosecution’s burden to:prove each element of a charged offense beyond a reasonable doubt.” The published opinion herein creates a clear split with Otero, Katzenberger, and Johnson, and this Court is urged to accept review to resolve the issue whether prosecutors are permitted touse these types of arguments which trivialize the reasonable doubtstandard of proof on each element of every charged offense. 13 - Defense Counsel Provided Ineffective Assistance in Failing to Object to the Misstatements of the Reasonable Doubt Burden of Proof. ~ Petitioner was deprivedofhis state and federal constitutional rights to- effective assistance of counsel by his trial counsel’s failure to object to the prosecutor’s misstatements of the reasonable doubt standard ofproof and to ask for ajury admonishment. (U.S. Const., Amends. VI,XIV; Cal.Const., art. I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d.674]; In re Scott (2003) 29 Cal.4th 783, 811; Peoplev. Staten (2000) 24 Cal.4th 434; People v. Ledesma (1987)43 Cal.3d 171, 215.) The Court ofAppealdid not reachthis issue becauseit erroneously held that the prosecutor’s argumentdid not misstate thereasonable doubt standard of proof: Upon review of the prosecutor’s misstatement of the burden of proof, this Court is urged to hold that defense counsel:was ineffective, first, because the failure to object fell below accepted professional: norms, and second, petitioner was prejudiced by his counsel’s error. (/d., 43 Cal.3d 171, 216; People v. Coddington (2000) 23 Cal-Ath 529, 651-652; People v. Rich (1988) 45 Cal.3d 1036, 1096; Strickland v. Washington, supra, 466 U.S. 668, 693-694; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) 14 Defense counsel’s failure to object to the prosecutor’s argument and seek a jury admonishment was not reasonable. The whole case turned on witness credibility, and defense counsel’s argument focused on the inconsistencies and gaps in the evidence andthe prosecution’s failure to prove its case beyond a reasonable doubt. (3RT 599-602, 606, 609) The failure to object to the prosecutor’s argument, which allowedthejury to find petitioner guilty on a reasonable possibility, was not reasonable. The prosecutor’s argumentcreated a very real possibility that the jury would convict on far less than proof beyond.a reasonable doubt. Counsel should have objectedto the prosecutor’s misstatements of the law and in failing to do so provided ineffective assistance. Hadcounsel objected,it is reasonably probable, morethan an abstract possibility, that at least one juror would have decided the prosecution had not proved its case beyond a reasonable doubt. The prosecution’s evidence was in sharp conflict as to whether the charged offenses occurredatall. Augustin Rosaltestified thathe saw nothing untoward (IRT 129-132, 138-139, 150, 165), in conflict with Deputy Ruiz’s testimony about Rosal’s statement to the investigating deputies (2RT 238-239). Jane Doeinitially testified that nothing happened (IRT 182-187), but changed her testimony and described two incidents in which Johnny touched her 2RT 194-201, 205-21 1, 219-220). 15 There were unexplained internal inconsistencies in their testimony as well. Jane Doetestified her friend at school told her not to talk about the incident, but also testified that she did not tell her friend about the incident, and could not explain how the topic cameup with her friend. (2RT 221-223)There were contradictions about the meeting with Esmerita, who wasthere, and what was said. (2CT 343, 348-349) There were contradictions about whatroom Jane Doe and petitioner were in when the alleged offenses occurred — Johnny’s room where there was no bed or another tenant’s room where there wasa bed. (2RT 198, 238) It was undisputedthat five other adult maleslived at the house, possibly including Jane Doe’s 16-year-old brother Victor, and there were unexplained contradictions about where Victor was whenthe alleged offenses occurred. Jane Doe said he was at church helping the pastor, but the pastor testified Victor had no involvementwith the church. (2CT 327, 329, 351-353; IRT 155; 2RT 225, 364) In contrast to the prosecution’s conflicting and contradictory evidence, petitioner steadfastly denied any wrongdoing, both in his statements to the investigating deputies in March 2008andat trial. Against this backdrop,the prosecutor’s argumentleft the jury with the mistaken impression thatit could find petitioner guilty by findingit was reasonably possible he wasguilty. This greatly lessened the People’s burdenof proof. Given the nature of the 16 prosecution’s conflicting evidence, had the prosecutor’s misstatements ofthe law been corrected after an objection,there is a reasonable chance, more than an abstract possibility, that the jury would have found petitioner not guilty on oneorall ofthe charged counts, or that at least onejuror would have believed there was a reasonable doubtasto petitioner’s guilt. (College Hospital, Inc. v. Superior Court (1994)8 Cal.4th 704, 715; and see People v. Soojian (2010) 190 Cal.App.4th 491, 521 [hungjury is a more favorable result than a guilty verdict].) The judgment and convictions should therefore be reversed. Hil Petitioner Proved by a PreponderanceofEvidence That He. Was a Minorat the Time of the Offenses. The Superior Court Therefore Acted in Excess of Jurisdiction in Trying Petitioner and Sentencing Him to State Prison. Welfare and Institutions Code’ section 604, subdivision (a) states: “Whenever a case is before any court upon an accusatory pleading anditis suggested or appears to the judge... that the person charged was, at the date the offense is alleged to have been committed, under the age of 18 years, the judge shall immediately suspend all proceedings against the person on the charge. The judge shall examine into the age of the person,andif, from the examination,it appearsto his or hersatisfaction that the person was atthe date 'Further unspecified statutory referencesare to the Welfare and Institutions Code. 17 the offenseis alleged to have been committed underthe age of 18 years, he or . she shall immediately certify [the matter] to thejuvenile court ofthe county...” ~ Section 604’s mandate to transfer the casetojuvenile court ifit appears to the judge’s “satisfaction” that the defendant is a minor places the burden of proofon the defendantto prove his minority by a preponderance ofevidence. (People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619-1620; People v. Quiroz (2007) 155 Cal.App.4th 1420, 1427; People v. Blackwell (2011) 202 Cal.App.4th 144, 152-153.) The Welfare and Institutions Code provides that the juvenile courts exercise exclusivejurisdiction overall minors under the age of 16; these minors cannot otherwise be tried as criminal offenders in-superior court unless they are charged with specified offenses listed in section 707, subdivision (b) and are found unfit to betried injuvenile court. (§707, subds. (b) & (c); In re Harris (1993) 5 Cal.4th 81 3, 837.) | Petitioner’s offenses are not listed in section 707, subdivision (b). Nevertheless, because petitioner was charged with felony counts, the superior court had subject matterjurisdiction to try him under general, adult law. Cn re Harris, supra, 5 Cal.4th at 837 .) However, becausepetitioner was under 16 years of age at the time of the alleged offenses, the criminal department of the superior court lacked jurisdiction to act andits trial ofpetitioner thus constituted an excess ofjurisdiction. ([bid.) 18 Where a defendant does not challenge the superior court’s jurisdiction based on his minority until trial is completed and he is facing sentencing, his right to be tried in juvenile court may be waived. (Jd. at 837-83 8; Jose D.v. Superior Court (1993) 19 Cal.App.4th 1098, 1100-1101.) Such a waiver must be made knowingly,intelligently, and advisedly. (In re Sidney M. (1984) 162 Cal.App.3d 39, 48; Rucker v. Superior Court (1977) 75 Cal.App.3d 197, 203.) Whereadefendantproves his minority by apreponderance ofevidence after verdict in superior court but before sentencing, the remedy is for the superior court to suspend the proceedings andrefer the case to juvenile court for disposition. (§604, subd. (a); Jose D. v. Superior Court, supra, 19 Cal.App. 4th at 1100-1101.) Thetrial court’s determination whether defendant provedhis minority by a preponderance of evidence is reviewed under an abuse of discretion standard, with the appellate court treating the trial court’s ruling as a factual finding whichis reviewed under a substantial evidence standard. (Peoplev. Superior Court (Jones) (1998) 18 Cal.4th 667, 680-681.) The question is whether, on the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which supports thetrial court’s determination. (Id. at 681; People v. Johnson (1980) 26 Cal.3d 557, 578.) Some evidence upon which the trier of fact might speculate as to petitioner’s age is not 19 enough. (People v. Reyes (1974) 12 Cal.3d 486, 499; People v. Holt (1944) 25 Cal.2d 59, 70.) A. Procedural History. Beforetrial, defense counsel expressed a doubt regarding petitioner’s age. The proceedings were suspended for investigation into petitioner’s age. (ART 1-3; 1CT 32) Defense counsel subsequently informed the court that petitioner’s father had “pinpointed” petitioner’s birthdate to 1989 when petitioner’s mother was pregnant, which indicated he was over 18. The proceedings in superior court were reinstated. (IRT 1-2; 1CT 33) Afterthe verdict, petitioner’s aunt, Zoyla Centeno, came forward with information that petitioner was a minorat the time of the charged offenses. (4RT 730-731, 754, 761; 4SCT 2-4) The defense investigated and Zoyla contacted. another family member in Nicaragua to obtain petitioner’s birth certificate. (3SCT 1-7; 4SCT 4) The defense then raised the issue of petitioner’s age and presented the court with petitioner’s Nicaraguan birth certificate showinghis birthdate as July 22, 1993. (2ART 365-366; 2SCT 2-3) At.a hearing on the issue of petitioner’s age, the evidence showed the following (2ART 366; 4RT 724-836):. Petitioner was born in a remotevillage in Nicaragua wherehe was known by the name Johnny Garcia. (4RT 740-741, 823) His mother is 20 Yolanda Garcia andhis father is Denis Centeno. (4RT 726, 785) In September or October 2006, petitioner’s aunt, Zoyla Centeno, arranged for petitioner to comeinto the United States. (4RT 728-729, 746-747) Zoyla askedpetitioner his birthdate, but he did not know it. (4RT 745-746) Zoyla asked petitioner’s mother, Yolanda Garcia, for petitioner’s birthdate, and Yolanda providedhis birthdate, July 22, 1993. (4RT 727, 745-746, 748-749) When petitioner came into the United States, he changed his name to Jonis Centeno and obtained a false L.D. with a false birthdate, January 31, 1988, which he used in order to work. (4T 823, 826-827) He provided the false January 31, 1988 birthdate to the probation officer who interviewed him on May4, 2010 for the probation report. (4RT 812-817; CT 201) Denis Centenotestified he is petitioner’s father, andpetitioner’s mother is named Yolanda. (4RT 785) Denis did not know Yolanda’s last name and they were never married. (4RT 785, 788, 792) He did not know when petitioner was born. (4RT 785-786) Denis came to the United States on September 2, and he thoughtthe year was 1989. He wasnot sure ifYolanda waspregnant at that time. (4RT 786) He did not know whenshegot pregnant.: (ART 788) Denis returned to Nicaragua in 1991 and on three subsequent *Denis Centeno had previouslytestified attrial concerninghis limited know- ledgeofpetitioner’s age. His trial testimony is discussed in greater detail in the argumentsection below. 21 occasions, but he was not sure of the dates. (4RT 789, 791-792) He saw his son on one ofthose occasions, but was not sure whichvisit it was. (4RT 790) He was not even sure if his son was an infant or a toddler when he met him; he only remembered meeting him for about half an hour. (4RT 793-794) Petitioner cameto live with Centeno in Fontana for about three months, but Denis did not know when that was or when petitioner came to the United States. (3RT 794-795) He never asked petitioner what his birth date was. (ART 795) Afier the guilty verdict, Zoyla Centeno obtained petitioner’s birth certificate from. another relative in Nicaragua. (4RT 736; 2SCT 2-3) The defense investigator took the birth certificate and attached authentication declaration to the Nicaraguan Consulate in Los Angelesforverification. (4RT 765-766, 799-800) An official at the Consulate examined the document and the stampedseals on the certificate and authentication declaration and stated the certificate was authentic. (4RT 766, 768-769, 771-772, 800-802) The American Consulate in Nicaragua also authenticated the birth certificate. (4RT 802-803; 2SCT 4-6) Thebirth certificate certifies that “Jhonny Garcia” wasborn in Nicaragua on July 22, 1993 to Yolanda Garcia. (4RT 807-808) The trial court accepted the authenticity ofthe birth certificate, but held there was insufficient evidence that petitioner was the person named on the 22 certificate because (1) the name Johnny Garcia was not on any of the court’s documents,(2) petitioner did nottell the probation officer he was also known as Johnny Garcia, and (3) the space on thecertificate for father’s name was blank, and Denis Centeno was not listed. (3RT 833-834) The trial court rejected Zoyla Centeno’s testimony that she learnedofpetitioner’s birth date from Yolanda when they met on one occasion in Nicaragua. (3RT 834) The court also rejectedDenis Centeno’s testimonythathe did notknowpetitioner’s date ofbirth, based on Centeno’s conflictingtrial testimony which included an affirmative response that his wife was pregnant when Centeno cameto the United States in 1989. (3RT 835, 2RT 359.) The court held that because ofthe conflicting evidence,it did not have enough evidence to find petitioner was a juvenile at the time of the charged offenses, notwithstanding the birth certificate “which talks about somebody named Jhonny Garcia,”and therefore determinedpetitioner was an adult at the time ofthe offenses. (3RT 835-836) B. The Trial Court’s Determination that Petitioner was an Adult at the Time ofthe Charged Offensesis not Supported by Substantial Evidence. A trial court’s finding which is unsupported by substantial evidenceis necessarily an abuse ofdiscretion. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681; Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 715.) 23 Thetrial court accepted the Nicaraguan birth certificate as authentic. Its determination that there was an absence ofproofthat petitioner was the “Jhonny Garcia” namedin the birth constitutes an abuse ofdiscretion because there was substantial, uncontradicted evidencethat petitioner was also known as. Johnny Garcia, his mother was named Yolanda, and he was born in Nicaragua. Throughouttrial, petitioner was referred to as “Johnny.” Jane Doe called him Johnny. (1RT 179, 221) Her father, Augustin Rosal, knew him as Johnny. (ART 128-129, 143) The District Attorney referred to him as Johnny when questioning witnesses. (1RT 183-187, 196; 2RT 385, 391, 398, 407) The CPSreport referred to the alleged perpetrator as Johnny. (2RT 273) His friend and former neighbor, Mara Robledo, referred to him as Johnny. (2RT 409) Petitionertestified he was known as Johnny Garcia in Nicaragua. (4RT 823) It was uncontradicted that his mother’s name is Yolanda Garcia and that he was born in Nicaragua,as stated on the birth certificate. (2RT 357; 4RT 740- 741, 785,822) It was uncontradicted that the January 31, 1988 birthdate was a false birthdate pursuant toa false LD.card petitioner obtainedjin order to work when he cameto the United States. (4T 823, 826-827) The trial court relied on evidence that is not substantial to determine petitioner wasan adult at the time ofthe charged offenses,i.e., (1) the fact that 24 the father’s name is not listed on the birth certificate, and (2) the court’s conclusion that Denis Centeno’stestimony “miraculously changed”at the age hearing. (4RT 835-836) First, that petitioner’s father’s nameis not listed on the birth certificate does not show that petitioner is not the person namedonthe birth certificate. It was uncontradicted that Denis Centeno and Yolanda Garcia were never married, they meton only several occasions, and the father was not present for his child’s birth or upbringing in Nicaragua. (2RT 357, 359; 4RT 792-794)It is therefore no surprise that Denis Centeno’s name does not appear on petitioner’s birth certificate. Moreover, it is common practice in many Spanish-speaking countries for a child to adopt his or her mother’s surname.? Second, Denis Centeno’s testimonydidnot “miraculously change” from the trial to the age hearing. Attrial, Centeno was asked if his son’s date of birth is January 31, 1988 (the date onpetitioner’s false I.D.). (2RT 355-356) Centenotestified he was not sure of his son’s exact date of birth because he met Johnny’s mother only twice, in Honduras; she ended up pregnant and returned to Nicaragua, and he did not see her again. (2RT 356-357) He was not sure when Yolanda was pregnant, but it was “approximately in the 90s, 3See, http://en.wikipedia.org/wiki/Married_and_maiden_names#Spanish- speakingwo 25 approximately.” (2RT 358) When questioned whetherit was the beginning or end ofthe 90s, Centeno thoughtit was at the beginning ofthe 90s. (2RT 358) Centeno wasthen asked when he cameto the United States. He knew hecame on September 2, but did not know the approximate year. (2RT 359) When asked, “Wasit 1989?,” he responded,“Yes.” (2RT 359) He wasasked, “And at that time do you remember if your wife was pregnant?,” and answered, “Yes.” (2RT 359) Atthe hearing on petitioner’s age, Centeno again was uncertain about relevantdates. He did notknow petitioner’s birthdate. (4RT 785-786) He was sure he cameto the UnitedStates on September2, 1989, “if1’m not mistaken.” (4RT 786) He did not know if petitioner was already born then, because he was not present for his birth. (4RT 786) He did not know if Yolanda was pregnant whenhe leftNicaragua in September 1989. (4RT 86) Whenreminded of his trial testimony in which he gave a positive response when asked if Yolanda waspregnant whenhe left Nicaragua in 1989; Centeno responded: “When I camehere I told you I didn’t know what date he was born.” ‘((4RT 786-787) Herememberedtestifying at trial, but did not remembertestifying that Yolanda was pregnant whenheleft Nicaragua in September 1989. (4RT 787) When the questioning persisted, Centeno reiterated that, “I don’t know what date shegot pregnant. I couldn’t have said it here.” (4RT788) 26 There was no “miraculous change” in Centeno’s testimony at the hearing on petitioner’s age.. Throughouttrial and the age hearing, Centeno consistently expressed his uncertainty as to dates. It was undisputed he was not around for the birth or upbringing of his child and that he was uncertain when Yolanda was pregnant and whenpetitioner was born. This uncertainty does not provide substantial evidence to support the trial court’s determination that petitioner was an adult at the time ofthe charged offenses. Nordoesthetrial court’s rejection of Zoyla Centeno’s testimony that she met Yolanda inNicaragua andasked herforpetitioner’s dateofbirth (4RT 727, 834), provide substantial evidenceto support thetrial court’s finding that petitioner wasan adult. Zoyla testified she arrangedfor petitioner to cometo the United States (4RT 746), andthe trial court expressly accepted Zoyla’s testimonythatpetitioner cameto the United States “by coyotes,”ie., illegally. (4RT 834-835) If such were the case, given that Zoyla had already asked petitionerfor his date ofbirth, with nosuccess becausepetitioner did not know the date (4RT 740), it would be no surprise that she would ask: petitioner’s mother for the information when she mether in Nicaragua. Regardless, the trial court’s rejection of Zoyla’s testimony onthis specific point does not negate the substantial evidence, much morethan necessary to “preponderate,” which established petitioner was born on July 22, 1993, as stated on the 27 certified birth certificate, which the trial court accepted as authentic and genuine. Moreover, as was pointed outat trial,petitioner appeared to be very young, small, and vulnerable, further substantiating the birthdate shownonhis Nicaraguan birth certificate. (See, 4RT 837) Section 604, subdivision (a) places the burdenofproofon the defendant to prove his minority by a preponderance of evidence. (People v. Nguyen, supra, 222 Cal.App.3d 1612, 1619-1620; People. v. Quiroz, supra, 155 Cal-App.4th 1420, 1427; People v. Blackwell, supra, 202 Cal.App.4th 144, 152-153.).To preponderate, evidence in a closely balanced case need only tip the scales to one side. All that is required is a “mere” preponderance, no matterhow slightsuch preponderance maybe. (Schumacherv. Bedford(1957). 153 Cal.App.2d 287,297-298.) Here, there was no evidence contradicting the substantial evidence — that is, evidence:that is ofponderable legal significance, reasonable in nature, credible, and ofsolid value — that petitioner was also known as Johnny Garcia and was born to Yolanda Garcia in Nicaragua on the date stated on the certified birth certificate which the court accepted as genuine. (People v. Superior Court (Jones), supra, 18 Cal.4th 667, 681, fn. 3.) Petitioner proved by a preponderance of the evidence that he was a minorat the time of the charged offenses. Thetrial court’s determination that petitioner was an adult 28 is unsupported by substantial evidence andis therefore necessarily an abuse of discretion. (/d. at 681-682.) Cc. Petitioner Did Not Knowingly, Intelligently, and Advisedly Waive His Right to Be Tried as a Juvenile, and the Conviction Therefore Violates His Rights to Due Process and Effective Representation under the Sixth and Fourteenth Amendments to the Federal Constitution. Petitioner’s July 22, 1993 date ofbirth showsthat he was only 14 years old at the time of the charged offenses, which were alleged to have occurred between September 1, 2007 and March 24, 2008. (1CT 91-92) While a minor may waive his rightto betried in juvenile court by submitting to the superior court’s subject matter jurisdiction without objection, such a waiver must be made knowingly,intelligently, and advisedly. (In re Harris, supra, 5 Cal.4th at 837-838; Jose D. v. Superior Court, supra, 19 Cal.App.4th 1098, 1100- 1101; In re Sidney M., supra, 162 Cal.App.3d 39, 48; Rucker v. Superior Court, supra, 75 Cal.App.3d 197, 203.) Petitioner did notknowingly,intelligently, and advisedly waivehis right to be tried as a juvenile. His trial counsel’s concession that he wasof age'to be tried in superior court (1ART 1-2; 1RT 1) was based on a misunderstanding ofthe law. Ifpetitioner was born in 1989, he was certainly over18 on thetrial date, January 29, 2010. Butthetrial date was not the relevant date. It is the minor’s age at the time ofthe alleged offenses which governs. (§§ 602, subd. 29 (a) & (b); 702, subds. (a)-(c); Jn re Harris, supra, 5 Cal.4th at 840; Rucker v. Superior Court, supra, 75 Cal.App.3d 197, 200.) Defense counsel also misunderstood the facts. Even ifDenis Centeno “pinpointed”petitioner’s birthdate to 1989 when “his wife was pregnant and traveled here and had the young man,”a 1989 pregnancy wouldresult in some unknown birthdate in either 1989 or 1990. If petitioner was born after September 1, 1989, he was a minorat the time of one or both of the charged offenses, which allegedly occurred between September 1, 2007 and March 24, 2008. (1CT 91-93) Given defense counsel’s errors, petitioner did not knowingly and intelligently waivedhis rightto be tried injuvenile court. Any waiver was due to ineffective assistance of counsel. Counsel’s failure to investigate the governing law, and to apprehend the known factsas applied to that law, cannot be considereda tactical decision excusing ineffective assistance. (People v. Ledesma, supra, 43 Cal.3d 171, 222.) Counsel’s ineffective assistance deprived petitioner of his rights to due process and effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, section 15 of the California Constitution. (U.S. Const., Amends. VI, XIV; Cal. Const., art. I, §15; People v. Staten (2000) 24 Cal.4th 434, 450; In re Mikkelsen (1964) 226 Cal.App.2d 467, 471 [minor has 30 due process right to adjudication in accordance with statutory procedures]; Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct. 2227, 65 L.Ed.2d 175 [Fourteenth Amendment ‘protects against arbitrary deprivation of state procedural law]. ) | The evidence shows that petitioner was born on July 22, 1993; therefore, he was only 14 years old at the time of the charged offenses. Accordingly, the superior court acted in excessofitsjurisdiction in trying him and sentencing him under the general, adult law, because section 707, subdivisions (a) through (c) limit findings of unfitness to those between the ages of 16 and 18 (§707, subd. (a)(1)), and to minors 14 or older who commit specified crimes (§707, subds. (b) & (c)), which do notinclude the charges alleged against petitioner (Pen. Code §§ 288, subd. (a) and 647.6, subd.(a)(1).) Un re Harris, supra, 5 Cal.4th at 850.) The judgment of the superior court must therefore be vacated and the case remanded to juvenile court for a new trial. (Wn re Shanea J. (1984) 150 Cal.App.3d 831, 846; cf., In re Harris, supra, 5 Cal.4th at 850-851.) Altematively, petitioner preservedhis objection to the superior court’s jurisdiction to sentence him to state prison (4RT 843) andthe state prison sentence musttherefore be vacated and the case remanded to juvenile court for disposition. (In re Jose D., supra, 19 Cal.App.4th 1098, 1100-1101.) 31 IV By Failing to Consider Probation as a Sentencing Option, the Trial Court Abused its Discretion in Violation of Petitioner’s FederalDue Process Rights,Requiring Remand for a New Sentencingand Probation Hearing. Immediately after the jury verdict, the trial court inquired whether a section 288.1 report was necessary. (3RT 638) The prosecutor responded that a section 288.1 report would be necessary only if the court was considering probation, citing People v. Thompson [(1989) 214 Cal.App.3d 1547]. (3RT 638) The next morning, defense counsel requested a section 288.1 report so that the court could consider all the options at sentencing, including the 288.1 report and defense counsel’s sentencing brief and statements in mitigation. (3RT 640) The prosecutor responded that defendant was not entitled toa section 288.1 report under Thompson and that defendant wasstatutorily ineligible for probation. (3RT 641) Thedefense reiterated the request for a 288.1 report so that “the Court would have an opportunity to review everything.” The court denied the request. GRT 641) Sentencing wasthen delayed for an extended period. After petitioner’s motion for new trial was denied, his counsel renewed the request for a section 288.1 report (4RT 708-709). The court respondedit was not considering probation. (4RT 709-712) Petitioner again requested a section 288.1 report, again denied by the court. (RT 836-839) 32 Petitioneris statutorily eligible for probation. No statute or fact makes him ineligible .as a matter of law. (Pen. Code, § 1203.066(d)(1).) Thetrial court prejudged the questionofpetitioner’s possible commitment to probation and abusedits discretion in refusing to considerhis suitability for probation, in violation of federal due process under the Fourteenth Amendment. (Hicks v. Oklahoma, supra, 447 U.S. 343, 346. An applicant for probation who is eligible for probation has a right to have his application considered by the court. (People v. Hutson (1963) 221. Cal-App.2d 751, 753; §1203, subd. (b)(3).) A grant ofprobationto an eligible defendantis within thetrial court’s discretion.. (People v. Ramirez (2006)143 Cal.App.4th 1512, 1530.) “{T]he law contemplates an exerciseofthat discretion by the sentencingjudge and in the absence of such exercise there has been no lawfully imposed sentence.” (People v. Surplice (1962) 203 Cal.App.2d 784, 791.) Section 1203, subdivision (b)(3). provides that: thesentencing court “shall hear and determine”suitability for probation. Under section 1203, the trial court is required to exercise its discretion where the defendantis eligible for probation. The standard for exerciseofthe trial court’s discretion is the offender’s suitability for probation, and to properly exercise its discretion,the trial court must examine the relevantfactors. Becausethetrial court is required to consider probation and the relevant factors for an eligible defendant, it 33 follows that the court’s failure to even consider probationrenders the sentencing hearing fundamentally unfair in violation of the defendant’s due processrights under the Fourteenth Amendment. (Gagnon v. Scarpelli (1973) 411 U.S. 778, 786 [93 S.Ct. 1756, 36 L.Ed.2d 656]; People v. Minor(2010) 189 Cal.App.4th 1, 13-14.) Wherea defendant convicted under section 288, subdivision (a)is statutorily eligible for probation and requests probation, the trial court should order a section 288.1 report in orderto fully andfairly consider the defendant’s suitability for probation. (People v. Franco (1986) 181 Cal.App.3d 342, 344.) People v. Thompson (1989) 214 Cal.App.3d 1547, cited by the prosecution below, doesnot relieve the court ofits duty to consider all relevant factors in determining whetherto grant or deny probation. See also, Peoplev. Ramirez (2006) 143 Cal.App.4th 1512, 1532 [trial court must weigh relevant factors prior to. deciding whether to grant or deny probation]. Here, the section 288.1 report was denied immediately after the verdicts were rendered and before a probation report or sentencingmemoranda were. everfiled. 3RT641) After denying the motion for newtrial, the court again refused a section 288.1 report, stating that it was not consideringprobation and therefore a psychiatric report would be ofno benefit. (4RT 709-711) This was: well before petitioner filed his sentencing brief and was.without benefit of 34 petitioner’s arguments explaininghis eligibility and suitability for probation and the relevant mitigating factors. (2CT 285-301) The court’s actions indicate a refusal to even consider probation, i.e., a refusal to exercise its discretion after an examination ofall applicable factors. As a result, there has been no lawfully imposed sentence (People v. Surplice, supra, 203 Cal.App.2d 784, 791), and the judgment must therefore be reversed and the cause remanded to the trial court for a new sentencing and probation hearing. (People v. Jeffers (1987) 43 Cal.3d 984, 1001.) Vv To the Extent the Trial Court Relied on the Outdatedand Incorrect Probation Report to Deny Probation, Petitioner Was Denied:Due Process and the Case must Be Remanded for a New Sentencing Hearing. Petitionerwas sentenced more than year after the probation report was filed. (1CT 198, 2CT 306-308) Although the probation report correctly noted that petitioner had no prior criminal history (1CT 199, 203), it also contained material, factual misstatements that he wasnoteligible for probation and that he “has a prior conviction for a registerable sex offense” (1CT 202), which apparently provided onebasis forthe probation officer’s incorrect conclusion that“a commitmentto state prisonis the only recommendationavailable to the Probation Department.” (ICT 204) (This error was subsequently corrected during pendency ofthe appeal, 3Supp.CT 11.) The report also concludedthat 35 probation could not be considered becausethe court did not refer the matter for a section 288.1 report. (1CT 202-203) As shown above,thetrial court prejudged the case and never considered the possibility ofprobation. However, to the extent, ifany, the court relied on the factually incorrect probation report to deny probation, it committed reversible error and denied petitioner due process. (People v. Arbuckle(1978) 22 Cal.3d 749, 754; People v. Tang (1997) 54 Cal.App.4th 669, 679-680; U.S.Const., 14th Amend.) It is a denial of due process and the sentencing hearing procedure is fundamentally unfair when the court relies on incorrect orunreliable information at sentencing or misreadsan underlying report so as to rely upon an erroneously exaggerated criminalhistory.(Arbuckle supra, 22 Cal.3d 749, 754-755; Townsend v. Burke (1948) 334 U.S. 736, 741 [68 S.Ct. 1252, 92 L.Ed. 1690}; People v. Peterson (1973) 9 Cal.3d 717, 726.) While it appearsthetrial court decided it would not grant probation even before the faulty probation report wasfiled, to the extent the court relied on the report (see, 4RT 709 [trial court referred to p. 4of the report]), a fair reading ofthe record indicates the trial court relied on faulty information in the report to deny probation. The court’s reliance on faulty information denies the defendant due process, requiring anew sentencing hearing. (People v. Eckley (2004) 123 Cal.App.4th 1072, 1077-1078, 1080; Townsend v. Burke, supra, 36 334 U.S. 736, 741; United States v. Weston (9th Cir.1971) 448 F.2d 626, 627, 634; and see, United States v. Tucker (1972) 404 U.S. 443, 448-449 [92 S.Ct. 589, 30 L.Ed.2d 592] UnitedStates v. Safirstein (9th Cir.1987) 827 F.2d 1380, 1387.) On remandfor resentencing, a current, supplemental probation report is statutorily required undersection 1203, subdivision (b). (People v. Rojas (1962) 57 Cal.2d 676, 682; People v. Johnson (1999) 70 Cal.App.4th 1429, 1432.) CONCLUSION For the reasonsstated herein, petitioner requests review be granted. DATED:April 12, 2013 By: lane KMpattie ean\ Ballantine, SBN 93675 ttomey for Petitioner Jonis Centeno By appointmentofthe Court of Appeal Under the Appellate Defenders,Inc. Independent Case System. CERTIFICATE OF WORD COUNT I certify that the word count for Appellant’s Petition for Review herein is 8,294 words,as counted by the WordPerfect computer program which was Chen LDilbayhoe_ Jean Ballantine, Attorney for Petitioner. used to producethis brief. 37 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATEDISTRICT in i ifrt TS= 1si DIVISION TWO _o*meee amit | | i MAR 19 2013 A] COURTC=APPEALFOURTHDISTRICT THE PEOPLE, Plaintiff and Respondent, E054600 Vv. (Super.Ct.No. FVA801798) JONIS CENTENO, . OPINION Defendant and Appellant. APPEALfrom the Superior Court of San Bernardino County. Cara D. Hutson, Judge. Affirmed. Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant. ‘ Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and Respondent. Exhibit A - Court of Appeal Opinion - E054600 A jury found defendant and appellant Jonis Centeno guiltyof two counts of willfully committing a lewd or lascivious act upon a child under the age of 14 years old (Pen. Code, § 288, subd. (a)),! and one count of molesting a child under 18 years of age (§ 647.6, subd. (a)(1)). The trial court sentenced defendant to prison for a term offive years. Defendantraises six issues on appeal. First, defendant contends the prosecutor committed misconduct by misstating the State’s burden of proof. Second, defendant asserts his trial counsel wasineffective for failing to object to the prosecutor’s misconduct. Third, defendant contendsthetrial court acted in excess ofits jurisdiction by sentencing him to prison because defendant wasa juvenile at the time the crimes were committed. Fourth, defendantasserts thetrial court erred by not considerin g probation as a sentencing option. Fifth, defendant contendshis due process rights were violated to the extentthe trial court relied on an outdated probation report when denying defendant probation. Sixth, defendant contendsthetrial court erred by relying on inaccurate information in the probation report when sentencing defendant. We affirm the judgment. FACTUAL AND PROCEDURAL HISTORY The victim is female and was born in April 2000. The victim lived with her father (Father) and brother. Defendant’s aunt owned a home with a garage that was converted into two living areas, separated by a thin wall. Defendantlived in oneofthe garage living spaces in his aunt’s home. Thevictim, her brother, and Fatherlived in the 1 All subsequent statutory references will be to the Penal Code unlessindicated. second garage living space. Approximately seven menlivedin the house, in the various rooms. Defendant’s living space did not have a door, so anyone walking byit could see inside. One day (Father could not recall the exact date), Father walked by defendant’s room and saw defendantlying on top of the victim. Father walked into defendant’s room and defendant “quickly jumped off”the victim. The victim, who had been onthe bed, ran out of the room. Father then left defendant’s room. Later, Father and defendant’s aunt confronted defendant, asking if anything inappropriate had taken place between defendantand the victim. The result of the confrontation was an agreement that defendant would not have contact with the victim and her brother for the sake of avoiding future problems. On March 24, 2008, the San Bernardino County Sheriff's Department was asked to follow-up on a child protective services referral involving defendant being found lying on top of the victim. Theinitial report was madeto child protective services on March 10, 2008. Deputy Ruiz interviewed defendant. Defendant denied touching the victim in an inappropriate manner. Defendant explained the victim went into defendant’s room looking for her brother. Defendant and the victim began playing with a ball in defendant’s room. The victim threw the ball at defendant while also running towards defendant to hug him. Defendant wassitting on the edge of his bed at the time, and the victim’s hug threw him off-balance. Defendant accidentally rolled over on the victim, and wasgetting up from rolling over when Father walked in the room. On June 25, 2008, San Bernardino Sheriff's Detective Brown observed a forensic interview of the victim through a two-way mirrorat the Children’s Assessment Center. During the interview,the victim said defendantlaid on top of her on four separate occasions. During three of the incidents, defendant and the victim were clothed and defendantlaid on top of the victim, not moving. During the fourth incident, while the victim was clothed, defendant exposedhis penis and placedit on the victim’s clothed genitals. The victim was seven years old whenthe incidents took place; the victim was seven years old during the interview in June 2008. At trial, the victim testified that when she was seven years old, defendant laid on her two separate times. The victim laid on her stomach, while defendantlaid on his stomach. During oneofthe incidents, the victim felt defendant’s penis touching her clothed genitals. Duringtrial, Father testified that when he walked by defendant’s room, he did not see defendant lying on top of the victim. Rather, he saw the victim, her brother, and defendantall trying to grab a ball or piece of candy that was on the ground. Since 2006, Father has attended the church where defendant’s father (Denis)? worked asa pastor. People at the church sometimes gave Father financial assistance, as well as assistance with clothing, shoes, food, and transportation. For example, Denis drove Father to court to testify in the instant case. 2 Forthe sake of clarity, we refer to witnesses with the last name “Centeno” by their first names; no disrespectis intended. Defendanttestified at trial. Defendant explained the victim’s brother cameinto defendant’s room with a ball. Defendant and the victim’s brother played with the ball, bouncing it against a wall. Then the victim entered defendant’s room. The victim wantedthe ball, so she, her brother, and defendantstarted trying to grab the ball on the floor. Father walked by while the three were “bunched up”on the floor trying to grab the ball. Father called the two children and they exited defendant’s room. DISCUSSION A. REASONABLE DOUBT l. PROCEDURAL HISTORY During rebuttal closing argument, the prosecutor madethe following statements: “Let me give you a hypothetical. Suppose for methat there is a trial, and in a criminal trial, the issue is whatstate is this that is on the Elmo. Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comesin and says, I have beento this state as well, and thereis this great town,it is kind of like on the water, it has got cable cars, a beautiful bridge, andit is call Fran-something,butit is a great little town. You have another witness that comes in and says, I have beento that state, ] went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable’s handprints in the cement. You have a fourth witness who comesin and says, I have been to that state. ‘““What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubtthatthis is California? No. You can have missing evidence, you can have questions, you can have inaccurate information andstill reach a decision beyond a reasonable doubt. What you are looking at when youare looking at reasonable doubtis you are looking at a world of possibilities. There is the impossible, which you mustreject, the impossible but unreasonable, which you mustalso reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake aboutit, we talked aboutthis in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don’t want to look at the tree and ignore the forest. You look at the entire picture to determineif the case has been proven beyond a reasonable doubt.” 2. ANALYSIS Defendant contends the prosecutor committed misconduct by misstating the prosecution’s burden of proof. The People assert defendant forfeited this issue for appeal by failing to raise an objection in the trial court. We agree defendantforfeited this issue for appeal. In examining the merits, we conclude the prosecutor did not commit misconduct. “[A] claim of prosecutorial misconductis not preserved for appeal if defendant fails to object and seek an admonition if an objection and jury admonition would have cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.) The record reflects defendant did not object to the reasonable doubt statements made by the prosecutor. There is nothing indicating that an objection would have beenfruitless or that an admonition would not have cured the problem. The record reflects when the prosecutor characterized defendant’s argumentin a particular way, defense counsel raised an objection. Thetrial court heard the objection and explained its reasons for overruling the objection. Thus, it appears the trial court was responsive to objections raised by defense counsel during closing argument. In sum, defendant should not be raising this claim of prosecutorial misconduct for the first time on appeal. The timeto raise it was during closing argument, and the place to raise it was the trial court. Asa result, we conclude defendant has forfeited this issue for appeal. Nevertheless, we will address the merits of defendant's contention becauseit is easily resolved. Defendant contends the prosecutor misstated the burden of proof by arguing: ‘You can have missing evidence, you can have questions, you can have inaccurate information andstill reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible but unreasonable, which you mustalso reject, and the reasonable possibilities, and your decision has to be in the middle.” Defendantinterprets the foregoing argumentas asserting the jury “could convict [defendant] if, from the evidence, it merely found that it was reasonably possible within the world ofpossibilities that he was guilty.” Defendant contendsthis is not compatible with the reasonable doubt standard ofproof. “Tt is misconduct for a prosecutor to misstate the law during argument. [Citation.] This is particularly so when misstatements attempt ‘to absolve the prosecution from its prima facie obligation to overcome reasonable doubtonall elements. [Citation.]’ [Citation.]” (People v. Otero (2012) 210 Cal.App.4th 865, 870- 871 (Otero).) “‘ When,as here, the point focuses on comments made bythe prosecutor before the jury, the question is whether there is a reasonablelikelihood that the jury construed or applied any of the complained of remarks in an objectionable fashion.’ [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771, 797.) Section 1096 defines reasonable doubt as follows: “‘It is not a mere possible doubt; because everything relating to humanaffairs is open to somepossible or imaginary doubt. It is that state of the case, which, after the entire comparison and consideration ofall the evidence, leaves the mindsofjurors in that condition that they cannot say they feel an abiding conviction ofthe truth of the charge.’” No further information about the definition of reasonable doubt, other than that in section 1096, needs to be given to ajury. (§ 1096a.) The prosecutor’s description of the reasonable doubt standard was not eloquent, but it also does not constitute a misstatement of the law. The prosecutor explained to the jury, albeit in a roundabout manner, that reasonable doubt involvesreflecting on the spectrum ofpossibilities that are supported by the evidence—from thosethat are impossible, to those that are unreasonable, and then to those that are reasonable and possible. The prosecutor argued that the jury’s “decision has to be in the middle. It has to be based on reason. It has to be a reasonable account.” Thus, the prosecutor argued the jury neededto reject the impossible, the unreasonable, and the merepossibilities in favor ofa reasonable factual scenario that was supported by the evidence. The prosecutor did not lowerthe State’s burden of proof by making this argumentto the Jury. Rather, the prosecutor took a somewhatcircuitous path in telling the jury that reasonable doubt requires the jury to be reasonable. If anything, the prosecutor’s statement wasnot a misstatement of the law, as much as a poorly worded redundancy of the reasonable doubt instruction. Therefore, we conclude the prosecutor did not commit misconduct. Asfar as arguing to the jury that some evidence might be inaccurate or incomplete, that is yet another redundancy, which was explained to the jury by thetrial court instructions. For example,the trial court informed the jury, “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply acceptthe part that you think is true and ignore the rest.” (CALCRIM No.226.) Thetrial court also informed the jury of its obligations related to conflicts in the evidence. (CALCRIM No. 302.) The overall point in the prosecutor’s remark being—the evidence maynotbe perfect, but that does not mean the case is over. Thetrial court gave the jury the same information in a more complete and specific manner—you may find problemsin the evidence, but you have an obligation to work through those problems. In sum, we are not persuaded the prosecutor committed misconduct. Further, in regard to prejudice, to the extent the prosecutor’s argumentled to confusion on the part of the jury concerning the reasonable doubt standard, we note the trial court instructed the jurors that if they “believe[d] that the attorneys’ comments on the law conflict with [the court’s] instructions, [they] must follow [the court’s] instructions.” (CALCRIM No.200.) Thetrial court also instructed the jury on the reasonable doubtstaridard of proof. (CALCRIM No. 103.) We presumethe jury obeyed the admonition in CALCRIM No.200, and disregarded anypart of the prosecutor’s argumentthat could have conflicted with the court’s instructions on reasonable doubt. (People vy. Stanley (1995) 10 Cal.4th 764, 836-837.) Defendant does not assert any errors concerning CALCRIM No. 200. Accordingly, defendant has not shownhe wasprejudiced by the prosecutor’s statements. Defendantrelies on Otero, supra, 210 Cal.App.4th 865 to support his argument the prosecutor committed misconduct. Defendantdid not cite Otero in his original briefs, because it had not yet been published, but includesit in a supplementalletter brief. In Otero, the prosecutor gave an example concerning a map, which wasnearly identical to the example given in the instantcase. The prosecutor in Otero showed the jury a PowerPointslide. Theslide reflected outlines of California and Nevada. San Diego was markedatthe northern end of California; San Francisco was south of San Diego, and Los Angeles was marked in southern California. (Otero, supra, 210 Cal.App.4th at p. 869.) The prosecutor told the jury she was “thinking of a state’” with a centrally located city named San Francisco and a southern city named Los Angeles. The prosecutor said to the jury, “‘Is there any 10 doubt in your mind . . . that state is California? Okay. Yes,there’s inaccurate information. I know San Diegois notat the northern part of California, and I know Los Angeles isn’t at the southern. Okay. But my point to you in this—.’” (/d. at p. 870.) At that point, the defendant’s trial counsel objected. The trial court instructed the prosecutor to not use the diagram and admonished the jury to follow the reasonable doubt instruction given by thetrial court. (/did.) On appeal, the defendant argued the prosecutor committed misconduct by using the “thinking of a state” argument. The appellate court agreed the argument was misconduct, but concludedthe error was harmlessin light of the trial court’s instructions. The appellate court found the argument to be misconduct because(1) it left a “distinct impression that the reasonable doubt standard may be met by a few pieces of evidence,” and (2) “i]t invites the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whetherthe 999prosecution has submitted proof beyond a reasonable doubt.’” (Otero, supra, 210 Cal.App.4th at p. 871.) Wedisagree with Otero’s analysis. First, the example may imply the evidentiary standard can be met by only a few pieces of evidence, but that is not a misstatement of the law. The testimony of a single witness can be sufficient evidence to support conviction. (People v. Canizalez (2011) 197 Cal.App.4th 832, 845.) There is no requirementthat a greater quantity of evidence be produced. Accordingly, we do not find it problematic that the example given in the instant case could be interpreted as requiring only a few piecesof evidence. 1] Second, we do not interpret the example as implying that the jury may simply jumpto a conclusion without reflecting upon the evidence. The example involves asking the jury to lookatall the city names, look at the outline shape, consider the inaccuracies in the geography, and then reach an answer. The example did not ask the jury to guess or speculate—it asked the jury to look at the information presented and cometo reasonable conclusion. Defendantargues, “The difference between Otero and the presentcaseis that in this case, the error was prejudicial and requires reversal.’” Since we have concluded defendantforfeited this issue, the prosecutor did not commit misconduct, and that any alleged error would have been harmless, we find defendant’s argumentdistinguishing Otero to be unpersuasive. B. INEFFECTIVE ASSISTANCE OF COUNSEL Defendant contendshis trial counsel was ineffective for failing to object to the prosecutor’s misstatement regarding the burden of proof. Wedisagree. “To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel’s performancefell below an objective standard of reasonableness,1.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a morefavorable result absent counsel’s shortcomings. [Citations.] ‘A reasonable probability is a probability sufficient to undermine confidencein the outcome.’ [Citation.]” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) 12 N.Y.S.2d 325, 327, discussed in Katzenberger [analogy ofjigsaw puzzle depicting Abraham Lincoln].) Second,by arguing that identification of the Statue ofLiberty picture with six of eight pieces in place was beyond a reasonable doubt, the prosecutor improperly suggested a quantitative measure ofreasonable doubt, 75 percent. (178 Cal.App.4th at 1268). _ Similarly, Division Three of the Fourth District Court of Appeal specifically noted that itwas publishing its opinion in People v. Otero, supra, 210 Cal.App.4th865, 867, because prosecutors’ use of physical diagram or puzzles (in Otero, the same “Whatstate is this?” puzzle as wasusedhere), “trivializes the prosecution’s burden to prove each element of a charged offense beyond a reasonable doubt.” The published opinion herein creates a clear split with Otero, Katzenberger, and Johnson, and this Court is urged to accept review to resolve the issue whether: prosecutors are permitted touse these types of arguments whichtrivialize the reasonable doubtstandard of proof on each element of every charged offense. 13 U Defense Counsel Provided Ineffective Assistance in Failing to Object to the Misstatements of the Reasonable Doubt Burden of Proof. . ~ Petitioner was deprivedofhis state and federal constitutional rights to: effective assistance of counsel by his trial counsel’s failure to object to the prosecutor’s misstatements of the reasonable doubt standard ofproofand to ask for ajury admonishment. (U.S. Const., Amends. VI, XIV; Cal.Const., art. I, § 15; Strickland v. Washington(1984) 466 U.S. 668, 693-694 [104 S.Ct. 2052, 80 L.Ed.2d674]; Jn re Scott (2003) 29 Cal.4th 783, 811; Peoplev. Staten (2000) 24 Cal.4th 434; People v. Ledesma (1987)43 Cal.3d 171, 215.) The Court ofAppealdid not reachthis issue becauseit erroneously held that the prosecutor’s argumentdid not misstate the.reasonabledoubt standard of proof. Upon review of the prosecutor’s misstatement ofthe burden of proof, this Court is urged to hold that defense counselwasineffective, first, becausethe failure to object fell below accepted professional norms, and second, petitioner was prejudiced by his counsel’serror. (/d., 43 Cal.3d 171, 216; People v. Coddington (2000) 23 Cal.4th 529, 651-652; People v. Rich (1988) 45 Cal.3d 1036, 1096; Strickland v. Washington, supra, 466 U.S. 668, 693-694; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) 14° Defense counsel’s failure to object to the prosecutor’s argument and seek a jury admonishment was not reasonable. The whole case turned on witness credibility, and defense counsel’s argument focused on the inconsistencies and gaps in the evidence and the prosecution’sfailure to prove its case beyond a reasonable doubt. (3RT 599-602, 606, 609) The failure to object to the prosecutor’s argument, which allowedthejury to find petitioner guilty on a reasonable possibility, was not reasonable. The prosecutor’s argumentcreateda very real possibility that the jury would convict on farless than proof beyond.a reasonable doubt. Counsel should have objectedto the prosecutor’s misstatements of the law and in failing to do so provided ineffective assistance. Had counselobjected,it is reasonably probable, more-than an abstract possibility, that at least one juror would have decidedthe prosecution had not provedits case beyond a reasonable doubt. The prosecution’s evidence was in sharp conflict as to whether the charged offenses occurredat all. Augustin Rosaltestified that he saw nothing untoward (1RT 129-132, 138-139, 150, 165), in conflict with Deputy Ruiz’s testimony about Rosal’s statementto the investigating deputies (2RT 238-239). Jane Doeinitiallytestified that nothing happened (1RT 182-187), but changed her testimony and described two incidents in which Johnny touched her (2RT 194-201, 205-21 1, 219-220). 15 There were unexplained internal inconsistencies in their testimony as well. Jane Doetestified her friend at school told her notto talk about the incident, but also testified that she did not tell her friend about the incident, and could not explain how the topic cameupwith her friend. (2RT 221-223)There were contradictions about the meeting withEsmerita, who wasthere, and what was said. (2CT 343, 348-349) There were contradictions about whatroom Jane Doe andpetitioner were in when the alleged offenses occurred — Johnny’s room wherethere was no bedor another tenant’s room where there wasa bed. (2RT 198, 238) It was undisputedthat five other adult maleslived at the house, possibly including Jane Doe’s 16-year-old brother Victor, and there were unexplained contradictions about where Victor was whenthe alleged offenses occurred. Jane Doe said he was at church helping the pastor, butthe pastor testified Victor had no.involvementwiththe church. (2CT 327, 329, 351-353; IRT 155; 2RT 225, 364) . In contrast to the prosecution’s conflicting and contradictory evidence, petitioner steadfastly denied any wrongdoing, both in his statements to the investigating deputies. in March 2008 andat trial. Against this backdrop, the prosecutor’s argumentleft the jury with the mistaken impressionthatit could find petitioner guilty by finding it was reasonably possible he wasguilty. This greatly lessened the People’s burden of proof. Given the nature of the 16 juvenile court for disposition, because the criminal court lacked jurisdiction for sentencing. The prosecution argued defendant failed to prove he was a minorat the time he committed the crimes. The prosecutor argued Denis believed defendant was born in 1990 and defendantused a birth year of 1988. The prosecutor asserted the trial court could not rely on the certified birth certificate because a page attached tothe birth certificate reflected employees do not assumeresponsibility for the content of the document, so while the certificate was authenticated, the content was not authenticated. Further, the prosecutor asserted Denis and Zoyla suffered credibility problems—Denis because he could not recall how old defendant was whenhevisited him forthe first time, and Zoyla because she never knew defendant’s date of birth until, one day, she randomly asked Yolanda. The prosecutor asserted defendant had not established any of the suggested years werehis actualbirth year, i.e., 1988, 1990, or 1993. Nevertheless, the prosecutor argued January 31, 1988, should be considered defendant’s birthday because that was the date he used for working, the date he used for being incarcerated, and the date he gave to Basso. Defense counsel responded that the 1993 birthday had been established because the birth certificate was a certified copy from the United States Consulate. Thetrial court stated that it had a problem with the birth certificate because the name on the certificate was Jhonny Garcia, which did not appear anywhere on the documents before the court. The court looked at the probation report, which indicated defendant did not have any aliases. The court reasoned if defendant were also known as 17 Jhonny, then defendant should have told Basso. The court also expressed concern that Denis’s namedid not appear on the birth certificate,when “everybody knew he wasthe father.” Thetrial court said, “So I acceptthis. This is a birth certificate of someone. [{] Is it the man before mein court today? [{] I just don’t have enough evidence to tell.” Thetrial court found Zoyla’s testimony to be “incredible.” Specifically, the trial court foundit “incredible” that Zoyla flew into Nicaragua, ran into Yolanda, and then asked her about defendant’s birth date, when the two women had never previously met. Thetrial court stated all it could do was take defendant’s “word” and Denis’s “word” that defendant was not a minor when the offenses were committed,i.e., defendant’s birth year was 1988 or 1990. Thetrial court concluded, “So the record is made. Perhaps the Appellate Court will find something that this Court did not. If this is true that he is a juvenile, I certainly hope so.” | 2. ANALYSIS Defendant contendsthe trial court erred by finding defendant was an adult at the time he committed the crimes against the victim. Wedisagree. Welfare and Institutions Code section 604 governs transferring cases from criminal court to delinquency court. The statute providesthat if it is suggested a defendant was under 18 years old when the charged offense was committed, then a ‘Sudge shall examineinto the age of the person, andif, from the examination,it appears to his or her satisfaction that the person wasat the date the offense is alleged to have been committed under the age of 18 years, he or she shall immediately certify” the case 18 to the delinquency court. (Welf. & Inst. Code, § 604, subd. (a).) Defendant bears the burden of proving he was underthe age of 18 years when he committed the offense. (People v. Nguyen (1990) 222 Cal.App.3d 1612, 1621.) The standard of proof applied to such a hearing is a preponderanceof the evidence. (/d. at p. 1620.) On appeal, defendant and the People apply a mixed substantial evidence and abuse of discretion standard of review. The relevant statute provides that if a trial court finds a defendant to have been under the age of 18 years when the crime was committed, then the court “shall immediately” certify the case to the juvenile court. (Welf. & Inst. Code, § 604, subd. (a).) There does not appear to be any discretion afforded to the trial court. (Cf. People v. Shipp (1963) 59 Cal.2d 845, 852 [Discussing a prior version ofthe statute: If the defendant is under the age of 21 years the court may certify the matter to the juvenile court.].) Accordingly, we apply the substantial evidence standard of review, because thetrial court’s role in the hearing appears to be one of fact finder. Under the substantial evidence standard we view the record in the light most favorable to the trial court’s finding to determine whetherit includes reasonable, credible, and solid evidence that would support the trial court’s conclusion. (People v. Kelly (2007) 42 Cal.4th 763, 787-788.) Denistestified that he met Yolanda only twotimes, while they were both in Honduras. Denis was in Honduras because he wasfleeing the political strife in Nicaragua. - Yolanda returned to Nicaragua pregnant with Denis’s child, and Denis never saw her again. Denis came to America on September 2, 1989. Denis returned to Nicaragua approximately one time in 1991 and three timesin the following years. 19 During one of those visits, Denis visited defendant for 30 minutes, but could notrecall whether defendant wasa toddler or infant. Denis recalled defendant was being cared for by an aunt—Yolanda wasnotpresentat thevisit. Given the foregoing evidence, defendant had to have been conceived prior to September 1989; however, we do not know exactly when. The latest defendantlikely would have been born is May 1990, assuming he was conceivedjust prior to Denis leaving for America. The problem hereis that we have no idea how long Denis was in Honduras, and when he met Yolanda. Thus,it is possible defendant was conceived years or months prior to September 2, 1989—thepoint is that we do not know because the evidence is not informative on this point. Theinitial report about defendant’s crimes was madeto child protective services on March 10, 2008. If defendant were born in May 1990, then he would have been 17 years old in early March 2008, but again, we do not know. What wecaninfer is that the July 22, 1993, date on the birth certificate is likely not accurate, given Denis’s recollections of interacting with Yolanda prior to departing for America in 1989 and Denis’s recollection that he returned to Nicaragua in 1991, thus confirming his memory that he left Hondurasprior to 1993. In sum, the lack of evidence supportsthetrial court’s finding that defendant did not prove he was born on or after March 1990. Defendant showed it was a possibility that he wasborn as late as May 1990, but only that it was a possibility. Accordingly, we concludethetrial court did noterr. 20 Defendantasserts the trial court erred becausethebirth certificate supported a finding defendant was born in 1993. Defendant asserts he was known asJohnny,his mother was Yolanda Garcia, and he was born in Nicaragua. Defendant’s argumentis not persuasive becauseheis not viewing the evidencein the light most favorable to the judgment. Rather, he is rearguing theissueasifat thetrial court—presenting the evidence in the light most favorable to defendant. Asset forth ante, there is evidence supporting the trial court’s conclusion that it is unclear exactly when defendant was born, and supportingthetrial court’s questioningof the birth certificate. D. PROBATION OPTION I, PROCEDURAL HISTORY | After the trial court recordedthe jury’s verdict, the court askedif a psychiatric report needed to be completed for defendant (§ 288.1). Defense counsel responded, “Yes.” The prosecutor responded, “No. Only if the Court is considering probation in this case under People v. Thompson [(1989) 214 Cal.App.3d 1547].” Defense counsel and the prosecutor agreed a Static-99 test needed to conducted, butthe prosecutor asserted that was different than a section 288.1 psychiatric report. The court did not order the section 288.1 psychiatric report. At the next hearing, in April 2010, defense counsel askedthetrial court to order a section 288.1 report, so the court could “considerall the options.” The prosecutor respondedthat defendant wasnot entitled to a section 288.1 report unless the trial court was considering granting probation pursuant to People v. Thompson. The prosecutor asserted defendant wasstatutorily ineligible for probation, and the victim’s young age 21 and vulnerability were factors in favor of denying probation. Thetrial court denied defense counsel’s request. On November30, 2010, defense counsel again requested a section 288.1 psychiatric report. The trial court responded, “My understandingis, as his probation on Page 4 [sic], that unless I refer it and am considering probation,that is the only time in which a 288.1 report would be relevant. This Court is not considering probation.” Defense counsel responded that he needed time to have the report done by the defense—to have defense counsel find a psychiatrist and obtain approvalfor the cost of the psychiatrist. The trial court asked why defense counsel would spend public funds on a psychiatrist’s report when the court said it was “not going to offer probation.” The trial court said it did not see the point of obtaining the report, but nonetheless granted defense counsel the requested amountof time to obtain a psychiatric report. On September 21, 2011, after the trial court held a hearing and concluded defendant was an adult at the time the crimes were committed, defense counsel made another request for a section 288.1 psychiatric report. Defense counsel assertedthetrial court never made a ruling granting or denying the defense’s request for such a report. Thetrial court agreed that it had not rendered a ruling on the request. The trial court then said, “So to be clear, the Court is not inclined to refer this for a 288.1 report, as the Court is not considering probation in this matter. Although, I know I havediscretion.” Defense counsel then argued why defendant should be granted probation. For example, there was not skin-to-skin contact, defendant did not have a criminalhistory, and a prison term would be “a death sentence” for defendant because he was young and 22 small. The People asserted defense counsel was “making a very large assumption”that prison would be a death sentence for defendant, and argued probation should be denied. Defense counsel argued that if the court did not order a section 288.1 report, then it should order a 90-day diagnostic test. The court then permitted defense counsel to again argue in favor of defendant being granted probation. Defense counsel asserted defendantdid not use force or violence against the victim, defendant’s conduct wasnot egregious, and defendant had never been given an opportunity to perform on probation. Thetrial court stated that it understood defense counsel’s point about defendant’s conduct not being the most egregious. The court then recounted how the victim “‘curled up in a ball” while testifying and appeared to be “clearly traumatized.” Thetrial court remarked, “And what should not be forgotten is how this victim is going to go through the rest of her life in ways we won’t know,because I saw the trauma on her face. And I thoroughly believe that what she said took place, did indeed take place.” The court stated it did not “desire to send [defendant] to any death sentence,” but the court had to find balance to determine what the proper punishment should be. The court said, “Pm not trying to send anybodyto be hurt or harmed in any wayin the state prison system. But this was simply not a probation case to this Court, which is why I, in my discretion, decided I don’t need the 288 report and J don’t need any further diagnostic. [] What this Court intends to do, though, because he has never been to state prison, is to sentence him to the mitigated of three years, plus one-third for Count2....” 23 2. ANALYSIS Defendantasserts the trial court erred by not considering the option of granting defendant probation becausethe trial court erroneously believed the People were correct in asserting defendantwasstatutorily ineligible for probation. Contrary to defendant’ s position, the trial court stated on the record, “So to be clear, the Courtis not inclined to refer this for a 288.1 report, as the Court is not considering probation in this matter. Although, / know I have discretion.” (Italics added.) Thetrial court gave its reasons, on the record, for exercising its discretion to deny defendant probation. Thetrial court explained that it saw the victim “curled up in a ball”while testifying, how the victim appeared to be “clearly traumatized,” and how the victim would “go throughthe rest of herlife” living with that trauma. Thus, the record reflects the trial court (1) knew it had discretion to grant defendant probation, and (2) exercised its discretion to deny defendant probation. (Cal. Rules of Court, rule 4.414(a)(4).) As a result, we conclude the trial court did noterr. Defendantasserts the trial court denied the section 288.1 report immediately after the verdicts were recorded, and then continued to deny defense counsel’s repeated follow-up requests. Defendant asserts this showsthetrial court never fully considered the option of granting defendant probation. Defendant’s argumentis not persuasive because the record explicitly reflects the trial court knew it had discretion to grant defendant probation, and its various reasons for denying probation. We do not find defendant’s argumentbased on inferences and implications to be persuasive in light of the explicit statements made bythetrial court. 24 E, SUPPLEMENTAL PROBATION REPORT l. PROCEDURAL HISTORY Defendant’s probation report is dated May 11, 2010. Defendant was sentenced on September 21, 2011. Defendant was in custody the entire time between May 11, 2010, and September 21, 2011. 2. ANALYSIS Defendant contendsthetrial court erred by relying on an outdated probation report. We conclude any error was harmless. “TA] court must order a supplemental probation officer’s report in preparation for sentencing proceedings that occur a significant period of time after the original report was prepared.” (Cal. Rules of Court, rule 4.411(c).) The Advisory Committee recommendsreports be updated if more than six months have passed since the previous report was issued. (People v. Dobbins (2005) 127 Cal.App.4th 176, 181.) Assuming thetrial court erred by not ordering a supplemental report after more than a year had passed since the original report, we conclude the error was harmless. The error is reversible only if there were a reasonable probability of result more favorable to defendant having occurred,if not for the error. (People v. Dobbins, supra, 127 Cal.App.4th at p. 182.) Defendant was incarcerated during the time between the original probation report being issued and the sentencing hearing. Defendant does not assert there was any new information that should have or would have been included in a supplemental report that would haveresulted in a more favorable sentence for defendant. Further, we note defendant’s trial counsel informed the trial court of 25 defendant’s experiencesinjail; thus filling any time gap, to the extent new information needed to be offered. Accordingly, we conclude anyerror related to a supplemental probation report was harmless beyond a reasonable doubt, becausethere is nothing indicating a reasonable probability of a better result for defendant. F. INACCURATE PROBATION REPORT 1. PROCEDURAL HISTORY In the “Collateral Reports” section of defendant’s probation report, the probation officer discusses the results of defendant’s Static-99 test. The probation officer wrote, “His risk on release from a prison sentence cannotbe calculated until his age on release on parole is known,so therisk score stated herein is predicative ofrisk at release on probation. As [defendant] has a prior conviction for a registerable sex offense, his risk score was calculated based on ageat release on the most recent registerable sex offense.” (Italics added.) | In the “Prior Record”section of the probation report, the probation officer wrote, “Accordingto records of the San Bernardino County Sheriff's Office, the Bureau of Identification, the Department of Motor Vehicles, and the Federal Bureau of Investigation, the defendant has the following prior record: NO KNOWN PRIOR RECORD LOCATED.”In the section of the probation report titled “Criteria Affecting Probation,” the probation officer wrote, “The defendant does not have a prior record of criminal conduct.” Defendant’s appellate counsel wrote a letter to the trial court informing it of the mistake in the probation officer’s report. Appellate counsel requested thetrial court 26 issue an order correcting the probation report or an order directing the probation officer to correct the report. Thetrial court responded with a minute orderreflecting it read appellate counsel’s letter, and found the probation report contained an inaccuracy, in that defendant does not have a prior criminal record. 2. ‘ANALYSIS Defendant contendsthetrial court erred by relying on a factual inaccuracy in the probation report, specifically, that defendant suffered a prior sexual offense conviction. Wedisagree. Fundamental fairness requires that a court havereliable information in a probation officer’s report. (People v. Arbuckle (1978) 22 Cal.3d 749, 754-755.) There is nothing indicating thatthe trial court relied on the inaccurate information concerning - the prior offense in deciding to deny defendant probation. Rather,the trial court explicitly stated its decision was based upon the emotional injury suffered by the victim. (Cal. Rules of Court, rule 4.414(a)(4).) Specifically, the trial court remarked how the victim “curled up in a ball” while testifying, how the victim appeared to be “clearly traumatized,” and how the victim would “go throughtherest of her life” living with that trauma. It does not appearthat the trial court relied upon the inaccuracy in the probation report as a basis for denying probation. Accordingly, we concludethetrial court did noterr. 27 DISPOSITION The judgmentis affirmed. CERTIFIED FOR PUBLICATION MILLER We concur: HOLLENHORST Acting P. J. CODRINGTON 28 PROOF OF SERVICE I, Jean Ballantine, declare and say that: Iam employed in the County ofLos Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 12228 Venice Boulevard, #152, Los Angeles, CA 90066-3814. On April 12, 2013 I served the foregoing document described as APPELLANT’S PETITION FOR REVIEW ontheinterested parties in this action by placing a true copy thereof enclosed in a sealed envelope, postage prepaid,first class mail, with the U.S. Postal Service, addressed as follows: Office ofthe Attorney General Robert Von Schlichting, Esq. PO BOX 85266 (Defense Trial Counsel) San Diego, CA 92186-5266 5755 Oberlin Drive, Suite 301 San Diego, CA 92121 San Bermardino Public Defender San Bernardino District Attorney DPD William E. Drake (Attn: DDA Vicki Hightower) 17830 Arrow Boulevard 17830 Arrow Route Fontana, CA 92335 Fontana, CA 92335 San Bernardino Superior Court Jonis Centeno, CDC #AI9565 For: Hon. Cara D. Hutson, Judge per rule 8.360(d)(2), appellant has 17780 Arrow Highway requested in writing that no copy be Fontana, CA 92335 sent. Clerk, Court ofAppeal Fourth Appellate District, Div. Two 3389 - 12th Street Riverside, CA 92501 Andbyelectronic serviceto: Appellate Defenders,Inc., eservice-criminal@adi-sandiego.com Office of the Attorney General, ADIEService@doj.ca.gov Fourth District Court ofAppeal, Div. 2, at www.courts.ca.gov I declare, under penalty of perjury, that the foregoing is true and correct. jon Executed April 12, 2013 at Los Angeles, California. LL} J¢an Ballantine
