Otero

We find the prosecutor’s use of a diagram of California to explain proof beyond a reasonable doubt was misconduct. Given the brief reference to the diagram, the court’s instruction to the jury to disregard the diagram, and the substantial evidence in this case, we find the misconduct was harmless. We publish this opinion due to the number of cases that come before us wherein prosecutors have used similar diagrams or puzzles in connection with arguments about proof beyond a reasonable doubt. The manner in which these diagrams or puzzles are used trivializes the prosecution’s burden to prove each element of a charged offense beyond a reasonable doubt and if their use continues, eventually the error will be prejudicial and result in a reversal of a conviction.

I

FACTS

An amended information filed in the Orange County Superior Court charged defendant Luis Alberto Otero with four sex offenses against a child. He was charged in count one with aggravated sexual assault on a child under 14 years old and more than 10 years younger than defendant (Pen. Code, 1 § 269, subd. (a)(3)). The information provided additional notice to defendant by specifying the offense was committed by…