People v. Castano CA4/1

Filed 4/24/14 P. v. Castano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063571

Plaintiff and Respondent,

v. (Super. Ct. No. SCN270509)

EUTIQUIO CASTANO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Robert J.

Kearney, Judge. Affirmed.

Siri Shetty, 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, Senior Assistant Attorney General, Steve Oetting and Andrew

Mestman, Deputy Attoneys General for Plaintiff and Respondent.
 A jury convicted Eutiquio Castano of three counts of committing forcible lewd

acts upon a child under Penal Code section 288, subdivision (b)(1)1 and six counts of

committing lewd acts upon a child under section 288, subdivision (a) after he was

discovered in a motel room molesting his 11-year-old daughter. Castano contends his

conviction must be reversed for three reasons: (1) the trial court erred in denying his

motion to suppress evidence obtained after the police officers entered the motel room

without a warrant because the entry was not justified by exigent circumstances; (2) there

was insufficient evidence to support his convictions for forcible lewd acts upon a child

since there was no evidence the acts in the motel room occurred under duress; and (3) the

prosecutor committed misconduct during closing argument. We find no merit in these

contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

I

Evidence Regarding Motion to Suppress

Castano moved to suppress evidence obtained as a result of police officer's entry

into the motel room without a warrant. The following evidence was presented at the

hearing regarding the circumstances surrounding the entry into the motel room.

On a Wednesday in December 2009, the Escondido police department received a

suspicious circumstances call from the front desk clerk at Mt. Vernon Inn. The clerk

reported a male checked in at 8:30 in the morning with his 11-year-old daughter saying

1 All unspecified statutory references are to the Penal Code.
2
they needed a single bed for a couple of hours. Several hours later, the male called the

motel's front desk asking for access to pornography channels on the television.

When the police officers arrived, they questioned the front desk clerk and looked

at the surveillance video of the man and his daughter. The girl who was carrying a

backpack, appeared to be a minor under the age of 14. She did not appear upset, scared

or agitated.

An officer went into a vacant room next door to Castano's room to determine if

people were in the room and "to ascertain, if possible, what type of activity was going on

in the room." The officer heard people in the room, but could not determine what was

being said or done.

The officers formed the opinion there was reasonable cause to believe child

molestation or sexual assault of a minor was occurring in the room and it was their duty

to enter the room. They based their opinion on the information that a school-aged girl

checked in to the motel on a school day with a male adult who asked for a single bed for

a couple of hours and then asked for access to pornographic material.

When the officers unlocked the door with a key card, they found the door was

barricaded by a table. The officers pushed through the door and table, entered the room

and announced themselves. The officers did not knock or otherwise attempt to contact

Castano before entering.

The court denied the motion to suppress, ruling the officers reasonably entered the

room without a warrant based upon either the exigent circumstances or welfare check

exceptions to the Fourth Amendment protection against unreasonable searches.

3
 II

Trial Evidence

A. Background

The minor, Castano's daughter, was 11 years old at the time of the incident in

2009.2 She has three older brothers from her father and mother and two younger

stepsisters, from her father and his girlfriend. The minor's mother left when the minor

was very young.

When she was in the fourth grade, the minor lived with her paternal grandparents.

Her paternal grandfather inappropriately touched her at night. The minor told her cousin

about the touching, but afterward regretted doing so because the minor had to move out

of her grandparent's house and was told she could not spend time with that side of the

family. The minor did not think the authorities handled the situation well because

nothing happened to her grandfather.

Thereafter, the minor lived with various relatives, but primarily with her father and

brothers. Castano's girlfriend lived with them off and on along with the girlfriend's

daughters, including one who was born in September 2009. Castano was the only one in

the family who worked. They lived in motels, a drug treatment shelter (for Castano and

his girlfriend) and apartments.

2 For confidentiality, we refer to the minor victim as "the minor."

4
B. Prior Incidents of Molestation by Castano

The first time the minor thought Castano touched her inappropriately was when he

snapped the waistband of her pajamas. Thereafter, when they were living in an apartment

in Escondido (after the incident with the minor's grandfather), Castano touched the

minor's vagina with his hands and rubbed his penis over and under her clothing. He

would do this when everyone was sleeping and would do it almost every night. He

would tell her to come downstairs and he would have her lie on top of him. He would

also touch her buttocks. This usually occurred at night, but sometimes he would keep her

home from school.3

The touching usually stopped when Castano's girlfriend lived with the family.

Castano did not touch the minor at the shelters or when they lived in motels. However,

when they moved to an apartment in Vista, even though the girlfriend was living with

them, Castano began touching the minor again and having her orally copulate him.

3 When the minor was initially interviewed, she was reluctant to talk. She initially
denied Castano touched her anywhere other than her vagina, it was over her clothes and it
only occurred one time. Over time, the minor revealed further information and further
instances of molestation. The minor did not want authorities involved because she
thought they did not do anything about her grandfather and they would not do anything
about her father. She admitted at trial she left things out of her interview statements
saying it was easier to talk about after time passed. She was embarrassed to tell people
her father had been doing this to her for some time before December 9, 2009. According
to a social worker who conducted two forensic interviews of the minor, studies show it is
a difficult process for children to disclose sexual abuse and, when they do, it is delayed.
They often disclose incrementally, i.e. when a child does disclose, she or he provides
partial bits of information and it is not unusual for the child to provide additional
information as time passes. In the social worker's opinion, if a child disclosed a previous
incident of abuse and it disrupted the family, the child would be more reluctant to
disclose again.

5
 At night, Castano would enter the room the minor shared with her sister and

brothers and he would touch the minor's buttocks and anus over and under her underwear

while her siblings were asleep. On one occasion, he took her to the living room where

they laid on the floor under a blanket and he touched her either on the vagina or on the

anus. He stopped suddenly and told her to lay still because Castano's girlfriend was

entering into the room. When his girlfriend saw them, she told the minor to return to her

room. Castano and his girlfriend got into an argument.

On another occasion, Castano took the minor to a baseball field near their

apartments and made her orally copulate him. Thereafter, he made her orally copulate

him on other occasions, including in the bushes near the transit center, the ball field and

in the bathroom of their home. Castano also told the minor to masturbate in front of him

and made her watch pornography with him.

The minor did not tell anyone. The minor testified she did not want to ruin

anything since Castano was the only one in the family who worked and paid the bills.

The minor liked living in an apartment and was afraid if she told, her father would get in

trouble and they would end up living in motels or shelters.

C. Motel Incident

On the morning of December 9, 2009, the minor planned to go to school. She

walked with her brother and father to the transit center where she usually took a bus to

school. However, when she heard her father calling motel rooms and asking for pricing,

she knew she was not going to school. She was worried and knew "he would do stuff"

because "he did it all the time."

6
 Castano told the minor's brother he did not have to go to school and gave him

money for a bus pass to go to Escondido to hang out with his friends. Castano told the

minor she would hang out with him. He told her they were going to pay the phone bill

and/or get her a cell phone.

Castano took the minor by public transportation from Vista to Escondido. They

ordered breakfast from a fast food restaurant and then went to the Mt. Vernon Inn.4

When they arrived at the motel at approximately 9:00 a.m., Castano got a room.

According to the motel manager, Castano identified the minor as his daughter and asked

for a room with one bed saying he needed to shower and sleep.5 When the manager

asked if he wanted a room with two beds, Castano said they only needed one bed because

they were just staying for a couple of hours.6 The girl did not look afraid and did not say

anything.

When they got to the room, they watched television. The minor ate a little, but felt

sick to her stomach because she knew what was going to happen.

Castano smoked methamphetamine. He walked around the room looking outside.

He rearranged the furniture, made sure the curtains were closed and placed a table in

front of the door. He also placed tissue in the peephole of the door. The minor thought

4 The family previously lived at the Mt. Vernon Inn for a few months.

5 The motel manager acts as the front desk clerk as part of his duties.

6 The price for a room with one king sized bed is the same as a room with two full
sized beds.

7
he was paranoid, but did not feel she could leave. Castano told the minor to say they ran

errands that day if his girlfriend asked where they were.

Castano told the minor to take a shower. Castano turned on the shower and, after

the mirror was foggy, he put strips of toilet paper over the mirror and covered the

window in the bathroom with a towel before he left the bathroom. After she got into the

shower, he came back into the bathroom and sat on the toilet seat across from the shower.

He opened the curtain and told her to wash herself while he watched. He made her bend

over while she cleaned herself.

After the minor got out of the shower, Castano told her to put on his black ribbed

undershirt. The minor understood he wanted her to wear nothing but his undershirt, but

she put it on over her jeans and shirt.

Castano told her to take off her pants. They laid on the bed and he let the minor

smoke cigarettes. Castano pulled the minor's underwear down and touched and licked

her vagina. He also made her touch his penis with her hands and mouth. At some point,

they got up from the bed and went to the bathroom where Castano made her orally

copulate him while she kneeled on a pillow.

Around noon, the motel manager received a call from Castano's room. A male

voice asked if they provided adult or pornographic movies, which they did not. After

receiving this call, the motel manager called the police. He told the police a man checked

in with his daughter asking for one bed and saying they were only going to stay for a few

hours. The motel manager also told the police the man called the front desk and asked

for pornographic material.

8
 When the police officers arrived, the manager gave them a key card to get into

Castano's room. The police officers used the key card to unlock the door, but encountered

an obstruction when they tried to open the door. After pushing the door open, the officers

realized a table had been placed in front of the door.7

The minor heard the door to the room bang open when she was in the bathroom

with Castano. Castano jumped and looked at the door. The minor saw someone pushing

the door open with the table in the way. She knew it was the police and she panicked

because she knew they would take him away.

As the officers entered the room, Castano came out of the bathroom shirtless and

adjusting his unzipped pants. The minor come out of the bathroom behind him wearing a

T-shirt and panties and covering herself with a pillow.

They noticed a refrigerator blocking an access point between the two rooms and

another table moved next to the window with the drapes closed. Dresser drawers were

propped against the window to prevent the drapes from moving. In the bathroom strips

of toilet paper were on the mirror.

The minor did not feel she could stop the conduct in the motel room.

The minor was afraid if she left or told, she did not know where her family would end up.

After Castano was arrested, the minor told a police sergeant she was scared she

would not see her dad again. She was concerned because her grandfather did the same

7 For purposes of trial only, Castano stipulated that entry into the room was lawful.
However, he preserved the right to challenge the entry on appeal.
9
thing and she could not see him anymore. She was also scared they would have nowhere

to go without her father.

DISCUSSION

I

The Entry Was Justified

Castano contends the court erred in denying his motion to suppress evidence

obtained as a result of officers entering the motel room without a warrant. He argues the

arresting officers lacked a reasonable basis to believe the minor was in imminent risk of

danger to justify warrantless entry into the motel room under either the emergency aid

exception or the community caretaking exception to the Fourth Amendment prohibition

against unreasonable search and seizure. We disagree.

In reviewing a court's ruling on a motion to suppress, "[w]e defer to the trial

court's factual findings, express or implied, where supported by substantial evidence. In

determining whether, on the facts so found, the search or seizure was reasonable under

the Fourth Amendment, we exercise our independent judgment." (People v. Glaser

(1995) 11 Cal.4th 354, 362.) Since the facts related to the entry of the motel room are

essentially undisputed, we independently review the application of law to the facts.

"The Fourth Amendment to the federal Constitution guarantees against

unreasonable searches and seizures by law enforcement and other government officials ."

(People v. Rogers (2009) 46 Cal.4th 1136, 1156.) "Thus, 'searches and seizures inside a

home without a warrant are presumptively unreasonable.' (Citation.) 'Nevertheless,

because the ultimate touchstone of the Fourth Amendment is "reasonableness," the

10
warrant requirement is subject to certain exceptions.' " (People v. Troyer (2011) 51

Cal.4th 599, 602 (Troyer).)

"One exigency obviating the requirement of a warrant is the need to assist persons

who are seriously injured or threatened with such injury. ' "The need to protect or

preserve life or avoid serious injury is justification for what would be otherwise illegal

about an exigency or emergency." ' [Citations.] Accordingly, law enforcement officers

may enter a home without a warrant to render emergency assistance to an injured

occupant or to protect an occupant from imminent injury." (Brigham City v. Stuart

(2006) 547 U.S. 398, 403.)8

"There is no ready litmus test for determining whether such circumstances exist,

and in each case the claim of an extraordinary situation must be measured by the facts

known to the officers." (Troyer, supra, 51 Cal.4th at p. 606, internal quotations omitted.)

"An action is 'reasonable' under the Fourth Amendment, regardless of the individual

officer's state of mind, 'as long as the circumstances, viewed objectively, justify [the]

action.' " (Brigham City v. Stuart, supra, 547 U.S. at p. 404.) "[T]he police did not need

'ironclad proof of "a likely serious, life-threatening" injury to invoke the emergency aid

exception' to the warrant requirement in order to enter the [dwelling] but merely ' "an

objectively reasonable basis for believing" that medical assistance was needed, or persons

were in danger.' " (Troyer, supra, at p. 602.)

8 The Fourth Amendment protection extends to motel and hotel rooms in which the
occupant has a reasonable expectation of privacy. (Stoner v. California (1964) 376 U.S.
483, 490; People v. Williams (1988) 45 Cal.3d 1268, 1297.)

11
 Castano argues there was no basis to believe "the minor required swift help"

because she did not appear to be agitated or in distress when they checked in to the motel,

there were no complaints or suspicious noises coming from Castano's room and because

pornographic material was not available to fulfill his request. He argues, "the officers'

suspicion amounted only to mere speculation that something may have been amiss."

The Supreme Court rejected a similar argument that police must have "probable

cause" to enter a home under the emergency aid exception. The court explained, "the

importation of a concept governing police officers 'engaged in the often competitive

enterprise of ferreting out crime' [citation] [does not] make sense under the emergency

aid exception, where the police must make split second decisions as to whether someone

is in need of immediate aid, not whether someone could be arrested for a crime."

(Troyer, supra, 51 Cal.4th at p. 606.) " '[T]he business of policemen and firemen is to

act, not to speculate or meditate on whether the report is correct.' " (Ibid.)

In this case, the officers responding to the suspicious behavior call knew a male

adult checked into a motel room during school hours on a weekday with a young girl who

he described as his daughter. By viewing the surveillance video, the officers confirmed

the girl was of tender years, under the age of 14. They knew the male asked for a room

for a couple of hours and specifically requested a single bed after being offered the option

of two beds. They also knew the male requested pornography only a short time before

they received the call.

The facts of this case do not show mere speculation to justify entry, as was the

case in People v. Smith (1972) 7 Cal.3d 282. In Smith, the police were called by a

12
neighbor when a child was found after being left alone in her apartment. However, the

girl was taken in by a neighbor and was cared for until the police arrived. The officer in

that case searched the child's unoccupied apartment without a warrant and discovered

marijuana. Under those circumstances, the court held the officer's speculation that the

child's mother may have returned home unnoticed and she did not respond to knocks on

her door or her name being called by the officer because she was somehow indisposed,

was not sufficient to allow entry into the apartment under the emergency aid exception.

(Id. at pp. 286-297.)

The police in this case acted upon more than speculation. Under the totality of the

circumstances known to the officers at the time they entered the motel room, we conclude

the police had an objectively reasonable basis for believing the minor girl was either

being subjected to molestation or sexual assault or was in imminent danger of such

conduct. The police officers in this case acted swiftly to protect the minor from what

appeared to be an ongoing situation. Indeed, it would have been a dereliction of duty for

the officers to abandon their investigation to obtain a search warrant while it was likely a

child was being harmed. As it turns out, the officers' concerns regarding what was

occurring in the room were well founded. Castano was caught in the act of molesting his

daughter. Entry into the room was justified under the emergency aid exception and the

court properly denied the motion to suppress.9

9 In light of this holding, we need not consider the alternative argument that the
entrance into the hotel room was justified under the "community caretaker" exception to
the warrant requirement. (See People v. Ray (1999) 21 Cal.4th 464, 471.)
13
 II

Substantial Evidence Supports the Convictions for Forcible Lewd Acts

Castano also contends there was insufficient evidence to support his convictions

for counts 1 through 3 for committing lewd or lascivious acts on a minor by force or

duress asserting he never made explicit or implicit threats.10 Again, we disagree.

For a conviction under section 288, subdivision (b)(1), the prosecution must

establish the defendant committed lewd or lascivious acts on a child under the age of 14

by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on

the victim or another person. Since Castano concedes he committed lewd acts on a child

in the motel room, the issue we consider on appeal is whether there was substantial

evidence to find the acts were committed under duress.

In reviewing claims of insufficient evidence in criminal cases, " 'we review the

whole record in the light most favorable to the judgment to determine whether it discloses

substantial evidencethat is, evidence that is reasonable, credible, and of solid

valuefrom which a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt. [Citations.] The standard of review is the same in cases in which the

People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the

jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it is the

jury, not the appellate court which must be convinced of the defendant's guilt beyond a

10 The opening brief refers to counts 1 through 4. However, count 4 was dismissed
by motion of the parties.
14
reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the

opinion of the reviewing court that the circumstances might also reasonably be reconciled

with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]"

[Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no

hypothesis whatever is there sufficient substantial evidence to support [the

conviction]." ' " (People v. Cravens (2012) 53 Cal.4th 500, 507-508.)

Duress is defined as "a direct or implied threat of force, violence, danger, hardship

or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1)

perform an act which otherwise would not have been performed or, (2) acquiesce in an

act to which one otherwise would not have submitted." (People v. Pitmon (1985) 170

Cal.App.3d 38, 50, disapproved on other grounds in People v. Soto (2011) 51 Cal.4th

229, 248, fn. 12.) "The total circumstances, including the age of the victim, and [the]

relationship to defendant are factors to be considered in appraising the existence of

duress." (People v. Pitmon, supra, at p. 51.)

Other relevant factors include not only threats to harm the victim or physical

control of the victim when he or she tries to resist, but also warnings to the victim that

revealing the molestation will jeopardize the family. (People v. Cochran (2002) 103

Cal.App.4th 8, 14, disapproved on other grounds in People v. Soto, supra, 51 Cal.4th at

p. 248, fn. 12.) "The very nature of duress is psychological coercion. A threat to a child

of adverse consequences, such as suggesting the child will be breaking up the family or

marriage if she reports or fails to acquiesce in the molestation, may constitute a threat of

retribution and may be sufficient to establish duress, particularly if the child is young and

15
the defendant is her parent. We also note that such a threat also represents a defendant's

attempt to isolate the victim and increase or maintain her vulnerability to his assaults."

(People v. Cochran, supra, at p. 15)

In this case, Castano told the minor he would be in big trouble if she told anyone

about the acts of molestation. On the day of the incident, Castano told the minor to lie to

his girlfriend about their whereabouts. The minor testified she was afraid if she did not

comply, if she attempted to leave the motel room or if she told, her family would be

jeopardized because they would not have a home without her father. She also testified

she felt physically ill when they were in the motel room because she knew what was

going to happen.

In addition to this psychological pressure, the evidence showed Castano

transported the minor by public transportation to a different city, which further isolated

her from her home and family. Castano essentially imprisoned her in a motel room by

barricading the doors and windows. He forced her to take a shower while he watched

and then molested her and required her to perform sexual acts. The minor was scared and

did not feel she could leave.

Castano relies on the case of People v. Hecker (1990) 219 Cal.App.3d 1238, in

which we held, under the facts of that case, there was insufficient evidence to establish

forcible lewd acts for defendant's molestation of his 12-year-old stepdaughter based upon

evidence she "felt pressured psychologically and 'subconsciously afraid' " because she did

not want to be responsible for breaking up the defendant's marriage to her mother. (Id.

at p. 1242.) We have since criticized the language in that case as overly broad. (People

16
v. Cochran, supra,103 Cal.App.4th at p. 15.) We have explained, as a factual matter,

when the victim is young and is molested by her father in the family home, "in all but the

rarest cases duress will be present." (Id. at p. 16, fn. 6.)

In this case, Castano is the minor's father. The forcible lewd acts occurred not in

the home, but at a motel room in a city distant from the home where the minor could not

flee to safety. Additionally, unlike in People v. Hecker, supra, 219 Cal.App.3d 1238,

Castano exerted not only psychological pressure on his daughter, but also physical

barriers to directly or impliedly threaten her to submit to lewd acts.

Under the totality of the circumstances, we conclude there is ample and substantial

evidence to support the jury's guilty verdict with respect to counts 1 through 3.

III

There Was No Prosecutorial Misconduct Warranting Reversal

Castano contends the prosecutor committed misconduct during closing statements

resulting in prejudice. He specifically argues he would not have been convicted of counts

1 through 3, lewd acts on a child by duress if the prosecutor had not said the evidence

established duress for all counts but it was "easier" to see why forcible lewd acts were

charged only for the conduct in the motel room. We find no merit in this contention.

A. Prosecutor Comments During Closing Statement

During the prosecutor's explanation of the difference between lewd acts on a child

by duress, as charged in counts 1 through 3, and lewd acts on a child without duress, as

charged in counts 5 through 10, he discussed the concept of duress. In doing so, he

commented, "every time he touched her, legally speaking, was under duress." He then

17
commented, "[t]he reason this case is charged the way it is is because it's so much easier."

Defense counsel objected it was improper to argue why the case was charged the way it

was. The court overruled the objection.

The prosecutor continued his argument without discussing the charging decision,

but stated, "[i]t's so much easier to see why on December 9, 2009, when defendant took

his little girl all the way across town to a motel and barricaded her in the room and

molested her, it's so much easier to see it was under duress. What's she going to do?

Where is she going to go? She just traveled for an hour by walking, by train, by bus.

She's in Escondido. She lives in Vista." "[T]here is a table blocking the door." " So, in

addition to all those factors, the age, the relationship, the fact that she knows if she tells

anyone her life is over, her life is ruined." "[I]t's so much easier to see duress when there

are physical barriers. She's afraid. She can't go anywhere."

B. Analysis

" 'The applicable federal and state standards regarding prosecutorial misconduct

are well established. " 'A prosecutor's . . . intemperate behavior violates the federal

Constitution when it comprises a pattern of conduct "so egregious that it infects the trial

with such unfairness as to make the conviction a denial of due process." ' " [Citations.]

Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is

prosecutorial misconduct under state law only if it involves " ' "the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury." ' " ' " (People

v. Hill (1998) 17 Cal.4th 800, 819.)

18
 Although it is true prosecutors are "held to an elevated standard of conduct"

(People v. Hill, supra, 17 Cal.4th at p. 819), " 'because of the unique function he or she

performs in representing the interests, and in exercising the sovereign power, of the

state' " (Id. at p. 820) it is also true "[t]he prosecution is given wide latitude during

closing argument to vigorously argue its case and to comment fairly on the evidence,

including by drawing reasonable inferences from it." (People v. Lee (2011) 51 Cal.4th

620, 647.)

We conclude there was no misconduct in this case. The prosecutor made a

passing comment about the "reason this case is charged the way it is," but he did not

argue personal knowledge or give an opinion of defendant's guilt based on evidence

outside the record. Rather, he commented on the strength of the evidence. While the

prosecutor argued all of the acts of molestation probably occurred under some form of

duress (which could be one reasonable interpretation of the evidence), he simply argued

why it was "easier" to see why the evidence of what occurred in the motel room, where

Castano erected physical barriers to prevent the minor from leaving, established the

element of duress necessary for counts 1 through 3. This was an accurate statement

based upon the evidence and legitimate inferences that could be drawn from the evidence.

There was no deceptive or reprehensible attempt to persuade either the court or the

jury.11

11 Because we reject Castano's argument that the prosecutor improperly referenced a
matter outside the record, we do not reach his argument the statement violated his rights
under the Sixth Amendment confrontation clause.
19
 Even if the statement could be viewed as misconduct, we would conclude reversal

of the judgment is not required because any such error was harmless. When a claim of

prosecutorial misconduct focuses on the prosecutor's comments before the jury, " 'the

question is whether there is a reasonable likelihood that the jury construed or applied any

of the complained-of remarks in an objectionable fashion.' " (People v. Cole (2004) 33

Cal.4th 1158, 1202-1203, italics added, quoting People v. Berryman (1993) 6 Cal.4th

1048, 1072, overruled on another point in People v. Hill, supra, 17 Cal.4th at pp. 822-

823; see also People v. Cummings (1993) 4 Cal.4th 1233, 1302 ["If there is a reasonable

likelihood that the jury would understand the prosecutor's statements as an assertion that

defense counsel sought to deceive the jury, misconduct would be established."].) When

the federal constitutional right to a fair trial is not violated, we apply the California

standard for harmless error, that is, whether, based on the totality of the evidence, it is

reasonably probable the defendant would have obtained a more favorable result absent

the claimed prosecutorial misconduct. (People v. Castillo (2008) 168 Cal.App.4th 364,

386.)

This is not a close case. Castano was caught molesting his daughter while

barricaded in a motel room in a city distant from their home. The minor testified she was

scared and did not feel free to leave. Given the strong evidence of the Castano's guilt, we

conclude he failed to meet his burden of demonstrating a reasonable probability he would

have obtained a more favorable result absent the passing comment of the prosecutor

regarding how the information was charged.

20
 Additionally, the court instructed the jury with respect to reasonable doubt: "[t]he

fact that a criminal charge has been filed against the defendant is not evidence that the

charge is true. You must not be biased against the defendant just because he has been

arrested, charged with a crime, or brought to trial." The court also instructed the jury it

must use only the evidence presented during trial, not statements made by the attorneys

during closing argument. We presume the jurors followed these instructions. "We

presume that jurors comprehend and accept the court's directions. [Citation.] We can, of

course, do nothing else. The crucial assumption underlying our constitutional system of

trial by jury is that jurors generally understand and faithfully follow instructions."

(People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)

DISPOSITION

The judgment is affirmed.

MCCONNELL, P. J.

WE CONCUR:

NARES, J.

AARON, J.

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