People v. Castanedo CA4/1

Filed 5/6/21 P. v. Castanedo 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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, D076838

Plaintiff and Respondent,

v. (Super. Ct. No. SCN381820)

WALTER NORBERT CASTANEDO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Carlos O. Armour, Judge. Affirmed and remanded with directions.
Joanna McKim, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and Julie L.
Garland, Assistant Attorneys General, Charles C. Ragland and Scott C.
Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Walter Norbert Castanedo of multiple offenses against
his granddaughter, A.C., namely oral copulation/sexual penetration with a
child 10 years old or younger (Pen. Code,1 § 288.7, subd. (b); counts 1-10),
sexual penetration by force (§ 289, subd. (a)(1)(A); counts 11, 12), and forcible
lewd acts on a child (§ 288, subd. (b)(1); counts 13-20 and 23-30). The jury
found true allegations that as to counts 15 through 20, 23 and 24 he had
substantial sexual conduct with a child under the age of 14 (§ 1203.066, subd.
(a)(8)). The trial court sentenced Castanedo to 150 years to life plus 112
years consisting of 15-year-to-life terms on counts 1 through 10, 12-year
upper terms on counts 11 and 12, and eight-year upper terms on counts 13
through 20, and 23 through 30. The court stayed under section 654 the
sentences on counts 11 through 14 and ordered the sentences on the
remaining counts to run consecutively.
Castanedo contends the trial court prejudicially erred and violated his
constitutional rights to due process, a fair trial, and to confront witnesses by
allowing an expert to testify about certain characteristics of child sexual
abuse victims and to relate the opinions of other nontestifying experts. He
further contends the prosecutor committed prejudicial misconduct by eliciting
sympathy for A.C., misrepresenting the burden of proof, and misstating the
law. We reject these contentions and accordingly affirm the judgment.
However, we direct the trial court to correct clerical errors in the abstract of
judgment as to counts 13 and 14 and thus remand with directions set forth
below.
FACTUAL AND PROCEDURAL BACKGROUND
Castanedo does not challenge the sufficiency of the evidence of his
convictions, so we summarize only the evidence necessary to address his
claims of evidentiary error and prosecutorial misconduct. Castanedo began
inappropriately touching A.C., or making A.C. inappropriately touch him, in

1 Undesignated statutory references are to the Penal Code.
2
about 2009 when she was in kindergarten. The incidents would occur at his
house at times in an outdoor hot tub, at the house where A.C. lived with her
mother, and during times when Castanedo took A.C. to and from classes.
Castanedo at times referred to A.C. by a nickname, his “little cute cute.” As
A.C. got older, the incidents continued but occurred less often. Castanedo
also bought more gifts for A.C. than for his other grandchildren. Castanedo
inappropriately touched A.C. in January 2017 while they were in an outdoor
hot tub during a trip to Hawaii. After the trip, A.C. was angry and threw
tantrums, prompting her mother to contact the school counselor to find out
what was wrong.
The incidents stopped in September 2017 when A.C. first reported
them to her mother during a trip to a wedding. That weekend A.C. did not
want to be left alone with Castanedo, and her mother asked A.C. what was
wrong and why she was being mean to her grandfather. When her mother
asked if Castanedo had done something to her, A.C. began to cry and nodded
yes. Before calling police, A.C.’s mother texted Castanedo to tell him that
A.C. had told her what he had done to her and that he should never come
over or speak to A.C. again. Castanedo did not respond.
Social worker Deborah Davies interviewed A.C. in October 2017. A.C.
brought a list she wrote of the things Castanedo did to her so it would be
easier for her to remember the incidents. Some of the incidents she said
happened when she was around four, five, and six years old. Among other
things, A.C. told Davies that Castanedo tried to take pictures or videos of her
while she was showering, and she asked her step-sister K.R. to steal his
phone so A.C. could delete the photos.

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 At trial, the prosecution presented Christina Shultz, a supervisor and

forensic interviewer for Palomar Health’s Child Advocacy Center.2 Shultz
described how her center performed interviews, and explained that her role
was as a neutral party and fact-finder. She was asked about common
misperceptions about victims of child sexual abuse, with which she was
familiar based on her training, expertise and research. She testified it was a
general misconception that a child being abused would tell someone about it
right away. Rather, she explained, many children would take the secret into
adulthood, and studies had shown two thirds of adults said they never told
anyone about their abuse during childhood. Shultz testified the majority of
abuse was by someone known or trusted by the child, either inside or outside
the family but close to the child; the closer the child is to the perpetrator, the
less likely the child would disclose the abuse. Thus the closer the
relationship the longer the delay. Shultz also testified that victims of abuse
did not usually cut off all contact with their abuser because breaking a
relationship is difficult to do with a known or trusted person, or an abuser
living in the same house. She testified victims continue to appear outwardly
normal when in the perpetrator’s presence; that there was no way to know
100 percent whether a child is being victimized and not every child reacts the
same way. Shultz described some of the outward signs and behaviors victims
display, as well as the meaning of delayed, partial or incremental disclosures
and grooming. She testified the more bonded the relationship, the more
likely the child would delay disclosure and give less information so as to
protect the abuser. Shultz identified the types of things that often cause a
child to finally disclose the abuse.

2 Castanedo does not challenge Shultz’s qualifications as an expert.
4
 On cross-examination, Shultz testified that her role as an interviewer
was not to determine whether the child was telling the truth or lying, but to
formulate appropriate questions for the child to talk about events and hope

they are providing accurate information about what occurred.3
The prosecution also presented M.C., Castanedo’s niece, who testified
that she first met Castanedo when she was 12, and saw him at a wedding
when she was 15 years old after he contributed to her travel expenses. After
the wedding, Castanedo began calling M.C. every day. The majority of calls
would end with Castanedo crying and telling her he wished they could be
together and that he loved her. He also began wiring M.C. money and
sending her things like champagne and marijuana. When she was 16 years
old, Castanedo once surprised her with a visit where he cried, told her he
wished they could be together, said he loved her, gave her an open-mouthed
kiss on the mouth for a longer than normal period, hugged her tightly with
his pelvis touching, and rubbed her back and arms. M.C. ended contact with
Castanedo after he sent her a $500 gift card to a lingerie store and asked her
to send him photographs of what she had purchased.
Castanedo’s great niece testified for the prosecution that when she was
sixteen Castanedo made her uncomfortable by asking her about her sex life

3 The following questioning took place on this point: “[Defense counsel:]
So in some sense you are—you’re hearing what the child says and then
taking what the child says as the truth; correct? [¶] [Shultz:] My role as
interviewer is not to determine the truth, whether the child is telling the
truth or lying. It’s really to allow the child—to formulate appropriate
questions for a child to be able to tell about an event or events. So I’m not
determining truth or lie. The hope is that they’re providing accurate
information about what occurred. [¶] [Defense counsel:] And that’s the
hope. So you’re assuming that what they’re telling you is the truth; right?
[¶] [Shultz:] Whatever the truth is.”

5
with her high school boyfriend: whether they were having sex, what it was
like and how often.
A.C.’s aunt described how when A.C. was between ages three and 12
she would hide or throw a tantrum when Castanedo arrived to pick her up.
Castanedo presented several witnesses in his defense. Two of A.C.’s
step-siblings, K.R. and J.R., testified A.C. had not told them her grandfather
was touching her inappropriately. K.R. further testified she did not
remember A.C. telling her she needed to review Castanedo’s cell phone
pictures. On cross-examination, however, K.R. testified she would not expect
A.C. to tell her something like this because they only talked about “basic”
things like school. She admitted Castanedo spoiled A.C. and bought her
whatever she wanted. K.R. recalled A.C. often telling her she hated her
grandfather very much without explaining why. She also recalled on several
occasions A.C. locking herself in her bedroom when Castanedo would come to
pick her up. J.R. testified he never saw anything inappropriate happen
between A.C. and Castanedo. J.R., however, also observed A.C. lock herself
in the bathroom or her bedroom when Castanedo came to pick her up. He
agreed Castanedo paid more attention to her than any of the other kids.
Two of Castanedo’s son’s best friends testified that they attended one
birthday party where both Castanedo and A.C. were present, and did not see
Castanedo act inappropriately towards A.C. One of the friends testified that
while in high school, he never saw Castanedo act inappropriately towards
Castanedo’s daughter’s friends. That witness had never seen Castanedo act
inappropriately toward the witness’s own eight-year-old daughter or 10-year-
old son.
A.C.’s mother’s ex-husband testified he never saw Castanedo act
sexually inappropriately with A.C. or any other kids He recalled one incident

6
where A.C. locked herself in her bedroom when Castanedo came to pick her
up and she did not want to go with him alone. A.C. did not leave her room
until Castanedo left.
Castanedo’s son testified he never saw his father and A.C. in the hot
tub or pool together. He never saw anything that made him think
Castanedo’s grandchildren hated Castanedo for any reason. He testified he
never observed his father act sexually inappropriately toward A.C.
In addition to instructions on reasonable doubt and what the jury could
consider as evidence, the court instructed the jury as to Shultz’s testimony,
saying: “You have heard from Christina Shultz regarding child sexual abuse.
And she’s the one that we designated. And it’s up to you to decide her level of
expertise. But she’s the one who described how the interviews are generally
conducted. [¶] . . . Shultz’s testimony about child sexual abuse is not
evidence that the Defendant committed any of the crimes charged against
him. You may consider this evidence only in deciding whether or not [A.C.’s]
conduct was not inconsistent with the conduct of someone who has been
molested and in evaluating the believability of her testimony.”
DISCUSSION
I. Admission of Expert Shultz’s Testimony
A. Testimony on Child Sexual Abuse Accommodation Syndrome and Related
Theories
Before trial, on the parties’ respective evidentiary motions, the trial
court ruled that expert Shultz could testify about certain characteristics of
child sexual abuse victims—commonly referred to as “child sexual abuse
accommodation syndrome” or CSAAS (see People v. Munch (2020) 52
Cal.App.5th 464, 465)—reasoning it was helpful for the jury to understand
how a child may react in disclosing the abuse. In response to defense

7
counsel’s argument that jurors were generally educated about sex abuse
victims from the media, the court agreed with the prosecutor that the jury
would be assisted by someone with empirical data who had done research in
the area, as opposed to relying on information jurors may normally hear.
Castanedo contends the trial court prejudicially erred by allowing over
his objection Shultz’s opinions on these issues. He concedes such testimony
may be relevant to dispel misconceptions or to rehabilitate the victim’s
credibility when the defendant suggests the victim’s post-abuse conduct is
inconsistent with his or her claims of abuse. Castanedo maintains such
evidence is irrelevant and inadmissible to prove a crime occurred, and it is
not proper for the expert to present “general” testimony or “ ‘predictive
conclusions,’ ” which he argues go beyond the scope of the child sexual abuse
evidence and may confuse the jury. Castanedo argues Shultz’s testimony was
irrelevant and improper because his defense counsel did not focus on A.C.’s
delay in disclosure; he did not seek to educate the jury on misconceptions
about child sexual abuse, nor did he try to prove A.C. did not act like other
child sexual abuse victims. Rather, his defense was that the acts did not
occur and he was not guilty, and thus the evidence violated his constitutional
right to a fair trial.
Under California law, all relevant evidence is admissible except as
otherwise provided by statute. (Evid. Code, § 351.) Evidence is relevant if it
has “any tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code, § 210.)
“Evidence Code section 801 ‘qualifies a matter as the proper subject for
expert testimony if it is “sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” That is not to say,
however, that the jury need be wholly ignorant of the subject matter of the

8
expert opinion in order for it to be admissible. [Citation.] Rather, expert
opinion testimony “ ‘will be excluded only when it would add nothing at all to
the jury’s common fund of information, i.e., when “the subject of inquiry is
one of such common knowledge that [people] of ordinary education could
reach a conclusion as intelligently as the witness” ’ [citation].” ’ ” (People v.
Dalton (2019) 7 Cal.5th 166, 236-237; see also People v. Morales (2020) 10
Cal.5th 76, 97 [relating admissibility standards for expert testimony].) This
court reviews the trial court’s decision on admissibility for abuse of
discretion. (Morales, at p. 97; People v. Duong (2020) 10 Cal.5th 36, 60.)
“Specifically, we will not disturb a trial court’s admissibility ruling ‘ “except
on a showing the trial court exercised its discretion in an arbitrary,
capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (Morales, at p. 97.)
We conclude the court did not abuse its “wide discretion” in finding the
expert testimony relevant and admissible. (People v. McAlpin (1991) 53
Cal.3d 1289, 1303 (McAlpin).) “Expert testimony on ‘the common reactions of
child molestation victims,’ known as CSAAS theory evidence, ‘is admissible to
rehabilitate such witness’s credibility when the defendant suggests that the
child’s conduct after the incident—e.g., a delay in reporting—is inconsistent
with his or her testimony claiming molestation.’ [Citation.] ‘ “Such expert
testimony is needed to disabuse jurors of commonly held misconceptions
about child sexual abuse, and to explain the emotional antecedents of abused
children’s seemingly self-impeaching behavior.” ’ ” (People v. Julian (2019) 34
Cal.App.5th 878, 885; see also McAlpin, at p. 1301; People v. Brown (2004) 33
Cal.4th 892, 906; People v. Munch, supra, 52 Cal.App.5th at p. 468.)
CSAAS evidence, however, “ ‘is not admissible to prove that the
complaining witness has in fact been sexually abused.’ ” (People v. Julian,

9
supra, 34 Cal.App.5th at p. 885.) Further, it is not proper for an expert to
present so called “predictive conclusions” such as testimony that child abuse
victims should generally be believed or are credible despite inconsistent
accounts. (Julian, at p. 886, quoting People v. Bowker (1988) 203 Cal.App.3d
385, 394.) “Where expert opinions on the statistical probability of guilt are
admitted, the jury may be ‘distracted’ from its ‘requisite function of weighing
the evidence on the issue of guilt,’ and may rely instead on this ‘irrelevant’
evidence.” (Julian, at p. 886.) In Julian, for example, an expert testified
about statistical data on false allegations and gave a percentage range of
false allegations. (Id. at pp. 883-884.) The Court of Appeal held that his
“statistical probability testimony went beyond the permissible scope of
CSAAS evidence, was highly prejudicial, and deprived [the defendant] of his
right to a fair trial.” (Id. at p. 885; accord, People v. Wilson (2019) 33
Cal.App.5th 559, 571 [finding the same expert’s testimony inadmissible; it
“had the effect of telling the jury there was at least a 94 percent chance that
any given child who claimed to have been sexually abused was telling the
truth” and even though it was not directed at the actual victims, “the
practical result was to suggest to the jury that there was an overwhelming
likelihood their testimony was truthful”].)
Here the evidence was that A.C.’s molestation began in 2009 when she
was in kindergarten but A.C. did not report it to her mother until years later
in September 2017. A.C. testified that at some point she related events
involving her grandfather to her step-siblings as if she were telling them a
story, but when they responded with surprise and said they would tell their

10
parents including A.C.’s mother, A.C. said she was just kidding.4 Further,
Castanedo’s counsel cross-examined A.C. to elicit that as she got older she did
not tell her aunts, even though they were close with A.C.’s mother.
Castanedo presented evidence from A.C.’s step-siblings that A.C. had not told
them her grandfather was touching her inappropriately. Such testimony
permits not just an inference that Castanedo did not commit the acts as
Castanedo urges, but also that A.C.’s conduct—her failure to report the abuse
or her remark that she was “kidding” about the abuse she described—is
consistent with a child who has been sexually abused. Under the
circumstances, the jury may have questioned A.C.’s reluctance to talk about
the abuse and her decision to wait as long as she did to report it. Given
A.C.’s close familial relationship with Castanedo, Shultz’s testimony
concerning CSAAS was relevant to explain any faulty assumptions
concerning when and how a child victim of sexual abuse may come forward
about the abuse and that the failure to immediately report abuse or later
minimize the abuse is not inconsistent with someone who suffered sexual
abuse. It helped disabuse any misconceptions the jury may have formed
based on A.C.’s prolonged delay in reporting Castanedo’s abuse. (McAlpin,
supra, 53 Cal.3d at p. 1301.) Further, the court instructed the jury that it
was not compelled to accept Shultz’s testimony and the testimony was not
evidence that Castanedo committed any of the charged crimes; it could only
consider her testimony when deciding whether A.C.’s conduct was not
inconsistent with the conduct of someone who has been molested and in

4 On further questioning, A.C. explained that she did not know why she
said she was kidding; she guessed she “was scared of my parents to know”
and “didn’t know if anyone would take my side or I’d have to deal with it and
stuff.”
11
evaluating the believability of her testimony. We presume the jury obeyed
these instructions. (People v. Flinner (2020) 10 Cal.5th 686, 717.)
The prosecutor did not use Shultz’s testimony to prove Castanedo
committed the sex acts against A.C., but rather told the jury: “[Y]ou can
consider [Shultz’s] testimony not of the Defendant’s guilt, but you can
consider it when you’re looking at how [A.C.] acted over the years. CALCRIM
[No.] 1193 tells us you can consider that testimony to decide whether her
conduct was consistent with a victim of child sexual abuse. You can use that
knowledge that you gained from Christina Shultz to determine whether or
not [A.C.] is believable, whether or not she’s credible.” The relevance inquiry
requires that we decide whether Shultz’s testimony would “at least in some
degree” (McAlpin, supra, 53 Cal.3d at p. 1300) assist the jury in
understanding an area outside of their common knowledge and whether it
was directed at a myth or misconception raised by the evidence. (Id. at pp.
1299-1300.) Here, the court did not abuse its discretion in deciding it would
do so in this case.
We disagree that Shultz’s testimony rose to the level of telling the jury
there was an overwhelming likelihood that A.C. was testifying truthfully by
providing statistics as to false allegations or the veracity of sexual abuse
victims, as the expert improperly did in People v. Julian, supra, 34
Cal.App.5th 878 and People v. Wilson, supra, 33 Cal.App.5th 559. Nothing in
Shultz’s remarks vouched for A.C.’s truthfulness or the truthfulness of the
People’s evidence. To the contrary, Shultz testified generally about
interviewing child abuse victims without referencing A.C.; on cross-
examination she confirmed she did not know the facts of A.C.’s case and
testified the role of an interviewer was not to determine whether the child

12
was telling the truth or lying, but to formulate questions to enable the child
to talk about events.
Relying in part on People v. Jeff (1988) 204 Cal.App.3d 309, Castanedo
nevertheless maintains that because Shultz addressed the sort of
circumstances involved in A.C.’s case—late or incremental disclosures,
abusers not being strangers, and grooming—her testimony “convey[ed] an
overwhelming likelihood A.C. was being truthful.” He argues that “the
prosecution elicited [Shultz’s] testimony not to rehabilitate A.C. but to prove
she was credible” and that “the jury should believe [A.C.] and find [he]
committed all the alleged acts,” thereby invading the jury’s province. He also
argues A.C. did not recant her statements about the alleged acts,
distinguishing this case from others in which CSAAS testimony was admitted
to explain why some sexually abused children will deny or recant abuse. We
cannot agree with this characterization of Shultz’s testimony or the
inferences that can be drawn from it. Shultz was asked straightforward
questions such as, “Are you familiar with the phrases delayed disclosure,
partial disclosure, incremental disclosure?” or, “Are you familiar with what
grooming is?” She was then asked to describe or explain the terms without
referring to A.C. or responding to hypotheticals that reflected exact details of

13
A.C.’s experiences.5 And A.C. did testify that she told her step-siblings she
was “kidding” when they reacted to her talking about her grandfather’s
abuse. This is the sort of “apparently self-impeaching behavior” that CSAAS
evidence is designed to help the jury understand. (See People v. Munch,
supra, 52 Cal.App.5th at p. 474; People v. Gonzales (2017) 16 Cal.App.5th

494, 504.)6

5 For example, as to grooming, Shultz was asked to explain what the
term meant, and stated: “So grooming is a phrase or term referring to the
different behaviors or techniques that an abuser will use to maintain the
trust of the child but also the caretaker’s. And really these things are done to
ensure that the—that their secret will be kept secret, to keep the child quiet
and silent.” When asked to describe “[w]hat sorts of behaviors are considered
grooming behavior,” she said: “So, again, grooming, the caretaker would
really be portraying oneself as very trusted, a nice guy. You know, very,
maybe, giving. Very helpful. That’s grooming to the caregiver. Grooming to
the child can be a variety of things, such as giving gifts, giving special time.
Compliments. Really making this to be a very exceptional, very special
relationship and really portraying that to the child. These sorts of things can
be considered grooming.” Shultz did not respond to “ ‘hypothetical questions’
incorporating the exact same facts and details as told by [A.C. to a clinical
social worker]” or explain that A.C.’s reactions were the symptoms exhibited
by a child molest victim so as to tell the jury they should accept A.C.’s
testimony as true, which was the improper testimony that deprived the
defendant of a fair trial in People v. Jeff (supra, 204 Cal.App.3d at pp. 337-
339).
6 The court in Munch rejected the defendant’s claim that a jury
instructed that it may use CSAAS evidence “in evaluating the believability”
of the child’s testimony would improperly use a CSAAS expert’s testimony as
evidence of guilt, explaining: “ ‘The purpose of CSAAS is to understand a
child’s reactions when they have been abused. [¶] A reasonable juror would
understand CALCRIM No. 1193 to mean that the jury can use [the expert’s]
testimony to conclude that [the child’s] behavior does not mean she lied when
she said she was abused. The jury also would understand it cannot use [the
expert’s] testimony to conclude [the child] was, in fact, molested. The CSAAS
evidence simply neutralizes the victim’s apparently self-impeaching behavior.
Thus, under CALCRIM No. 1193, a juror who believes [the expert’s]
14
 It is not the case that CSAAS expert evidence may only be used to
rebut defense attacks on a victim’s credibility. Where a victim’s testimony
puts their own credibility at issue as A.C.’s did here, CSAAS psychological
testimony may be properly admitted to rehabilitate the victim and explain
the pressures that sometimes cause molestation victims to delay reporting or
falsely recant their claims of abuse. (See, e.g., People v. Housley (1992) 6
Cal.App.4th 947, 956 [cases sometime suggest that expert CSAAS testimony
only may be used to rebut defense attacks on a victim’s credibility, but where
victim “directly placed her credibility in issue by retracting her molestation
claims and offering a new story at trial” such testimony was properly
admitted]; accord, People v. Harlan (1990) 222 Cal.App.3d 439, 449-450
[where prosecutor identified misconceptions about victims’ behavior such as
delayed disclosure and inconsistent statements, trial court did not err in
permitting CSAAS expert to testify despite defendant’s claim he did not put
in issue any of the paradoxical behaviors of child molestation victims such as
recantation].)
B. Claim that Shultz Related Opinions of Nontestifying Experts
Castanedo contends the court erred by allowing Shultz to relate
opinions of other nontestifying experts, which constituted inadmissible
hearsay and violated his right to confront and cross-examine witnesses
absent a showing of unavailability or prior opportunity for cross-examination.

testimony will find both that [the child’s] apparently self-impeaching
behavior does not affect her believability one way or the other, and that the
CSAAS evidence does not show she had been molested.’ ” (People v. Munch,
supra, 52 Cal.App.5th at p. 474, quoting People v. Gonzales, supra, 16
Cal.App.5th at p. 504.)

15
He specifically points to the information that Shultz related in response to
questioning about “stranger danger:”
“[Prosecutor:] Can you just tell us—and I think we touched on material
on—about stranger danger versus nonstranger danger, if that’s a fair way to
phrase it.
“[Shultz:] Sure. And even in terms of sexual abuse I think this was a
term that the public would—again assuming that the people that were
abusing children were strangers. [¶] But, again, we know that more than 90
percent of the time, the child—the abuser is not a stranger. It is somebody
well known to the child, well known to the family and trusted. So that’s kind
of a thing of the past, the stranger danger.”
Castanedo maintains this exchange, particularly the 90 percent
information, was hearsay offered for its truth “to inform jurors that other
experts, like Shultz, believed that appellant being [A.C.’s] grandfather was
consistent with other child sexual abuse victims.” He suggests the evidence
was like that statistical evidence held improper in People v. Wilson, supra, 33
Cal.App.5th 559, arguing the evidence “invited the jury to decide the issue of
guilt based on unexplained statistical data, concluding that because the
majority of sexual abuse victims had as their abuser someone who they
trusted and was not a stranger, appellant fit the profile and was likely guilty
of the charges.”
While it is true that the court in People v. Campos (1995) 32
Cal.App.4th 304, stated an expert witness may not “on direct examination,
reveal the content of reports prepared or opinions expressed by nontestifying
experts” (People v. Campos, at pp. 307-308), that court has since explained
Campos should not be read to suggest an expert could never refer during
direct examination to the contents of another expert’s report. (People ex rel.

16
Dept. of State Hospitals v. S.M. (2019) 40 Cal.App.5th 432, 442-443.) Before
making the challenged statement, Shultz testified that she had been
conducting forensic interviews of child victims for close to fifteen years and
had conducted over 2,000 interviews. She explained she was a board member
of the Child Advocacy Centers of California, and her training required her to
read research, literature, attend trainings and participate in peer review to
maintain her skills and stay current. When asked whether reporting by
victims was influenced by an abuser who told them not to tell, she explained,
“Well, we know that children who are abused by a stranger, which actually
constitutes a pretty small percentage of the sexual abuse cases, in those cases
. . . [w]e see that kids likely will tell right away. [¶] But . . . the majority of
abuse is happening by somebody known and trusted to the child, somebody
within the family or even outside of the family but somebody close to the
child. And so what we know is that the closer the child is to the perpetrator,
the less likely they’re going to tell.”
It is not clear that in the challenged portions of her testimony Shultz
was relating a statistic from another non-testifying expert versus information
from a research study of a kind an expert may reasonably rely. (Evid. Code,
§ 801; People v. Caitlin (2001) 26 Cal.4th 81, 137 [expert may base opinion on
any “matter” known to her, including inadmissible hearsay, as long as that
matter may be reasonably relied on for that purpose].) The 90 percent
reference could have been Shultz’s own estimate from personal experience
conducting more than 2000 forensic interviews. On this record we cannot say
that Shultz violated the rule expressed in People v. Campos, supra, 32
Cal.App.4th 304, which is confined to instances where an expert introduces
“ ‘multiple [expert] opinions, insulated from cross-examination, into

17
evidence.’ ” (People ex rel. Dept. of State Hospitals v. S.M., supra, 40
Cal.App.5th at p. 442; see also People v. Bordelon (2008) 162 Cal.App.4th

1311, 1326.)7
Further, because Shultz had already related that the majority of child
victims were abused by persons known to them such as a family member or
close friend, her fleeting reference to the 90 percent statistic was not
prejudicial or a miscarriage of justice. (Accord, People ex rel. Dept. of State
Hospitals v. S.M., supra, 40 Cal.App.5th at p. 443; People v. Campos, supra,
32 Cal.App.4th at pp. 308-309.) In short, it is not reasonably probable that a
result more favorable to Castanedo would have been reached in the absence
of the challenged evidence. (Ibid.)
II. Claim of Prosecutorial Misconduct
Castanedo contends the prosecutor committed prejudicial misconduct
during closing arguments in several ways, violating his constitutional rights
to due process and a fair trial. He acknowledges his counsel did not object to
all of the challenged remarks, but he contends an objection and request for
admonition would have been harmful as calling more attention to what was
said, making the prejudice worse. Castanedo maintains this court may
review the issues in any event notwithstanding counsel’s failure to preserve

7 Toward the outset of her testimony, Shultz talked about the
misconception that if a child is being abused they would tell right away,
explaining “[w]hat we know through research is we know that many kids do
not tell during adulthood. A lot of this information that we get [is] through
what we call retrospective studies. So studies, phone call surveys that are
given to adults asking about their experiences as children and one question
being history of sexual abuse.” Shultz testified that those surveys showed
that two-thirds of respondents never told anybody during childhood.”
Castanedo does not challenge those portions of Shultz’s testimony.
18
them. Alternatively, he argues his counsel was prejudicially ineffective for
the omission.
We agree that to the extent Castanedo did not object to the prosecutor’s
remarks, he has forfeited his challenge. (People v. Johnsen (2021) 10 Cal.5th
1116, 1164 [“ ‘It is well settled that making a timely and specific objection at
trial, and requesting the jury be admonished (if jury is not waived), is a
necessary prerequisite to preserve a claim of prosecutorial misconduct for
appeal’ ” and record did not suggest a timely objection would have been futile
or insufficient]; People v. Peterson (2020) 10 Cal.5th 409, 464-465.) There is
no indication on this record that the court signaled it would overrule
counsel’s objections or reject requests for an admonition. (Accord, People v.
Centeno (2014) 60 Cal.4th 659, 674.) Nor were the prosecutor’s arguments so
extreme or pervasive that a prompt objection and admonition would not have
cured the harm. (Ibid.; compare People v. Hill (1998) 17 Cal.4th 800, 821
[counsel engaged in a “constant barrage” of unethical misstatements,
demeaning sarcasm, and outright falsehoods, and risked “repeatedly
provoking the trial court’s wrath, which took the form of comments before the
jury suggesting [defense counsel] was an obstructionist [who was] delaying
the trial with ‘meritless’ objections”].) An objection can always be
characterized as calling attention to what was said, so we decline to hold that
that circumstance alone shows futility or inability to cure. Accordingly, to
the extent Castanedo objected, we will address the merits of the claim. As to
the other remarks, we address Castanedo’s ineffective assistance claim,
dealing with each claim of alleged misconduct seriatim.
A. General Legal Principles and Standard of Review
“ ‘A prosecutor commits misconduct when his or her conduct either
infects the trial with such unfairness as to render the subsequent conviction a

19
denial of due process, or involves deceptive or reprehensible methods
employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a
defendant may not complain on appeal of prosecutorial misconduct unless in
a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to
disregard the impropriety.’ [Citation.] ‘When attacking the prosecutor’s
remarks to the jury, the defendant must show’ that in the context of the
whole argument and the instructions there was ‘ “a reasonable likelihood the
jury understood or applied the complained-of comments in an improper or
erroneous manner.” ’ ” (People v. Silveria (2021) 10 Cal.5th 195, 306; see
People v. Johnsen, supra, 10 Cal.5th at p. 1164.) A reviewing court faced
with a claim that a prosecutor’s comments constituted misconduct, “ ‘do[es]
not lightly infer’ ” the prosecutor “ ‘intended [his (or her) remarks] to have
their most damaging meaning, or that the jury would draw that meaning
from the other, less damaging interpretations available.’ ” (People v. Young
(2005) 34 Cal.4th 1149, 1192.)
If a forfeiture occurs from counsel’s failure to object to asserted
misconduct, the defendant may make a claim of ineffective assistance. “To
demonstrate ineffective assistance of counsel, [Castanedo] ‘must show that
counsel’s performance was deficient, and that the deficiency prejudiced the
defense.’ [Citation.] On direct appeal, a finding of deficient performance is
warranted where ‘(1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.’ [Citation.] ‘[W]here counsel’s trial tactics or
strategic reasons for challenged decisions do not appear on the record, we will
not find ineffective assistance of counsel on appeal unless there could be no

20
conceivable reason for counsel’s acts or omissions.’ ” (People v. Johnsen,
supra, 10 Cal.5th at p. 1165.) “ ‘[T]he decision . . . whether to object to
comments made by the prosecutor in closing argument is a highly tactical
one.’ ” (Ibid.) Furthermore, counsel is not ineffective for failing to object
when an objection is meritless. (See People v. Peterson, supra, 10 Cal.5th at
p. 465; People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36 [“Counsel had no
obligation to interpose meritless objections”].)
B. Claim that the Prosecutor Elicited Sympathy for the Victim
Castanedo contends the prosecutor improperly elicited sympathy for
A.C. by referring to A.C. having to talk to someone about Castanedo touching
her and the list she wrote to help her memory. More specifically, Castanedo
complains about the prosecutor’s statement: “[A.C. is] told by her mom she
has to go talk to someone about what happened. How do you think that feels
as a twelve year[ ]old? So what does she do? That morning without telling
anyone she writes out a list called Things He Did To Me, a list no kid should
ever have to write.” Castanedo complains about the prosecutor telling the
jury that A.C. “wrote things that kids her age shouldn’t know” and asking
them, “[D]id you see the visceral reaction that she had here in court when she
had to say [“my little cute cute”] out loud?” Castanedo also points to the
prosecutor’s remark: “[A.C.] is not an actress. She’s a real child, coming in
here, talking about things that real kids shouldn’t have to talk about.”
“ ‘[A]n appeal to the jury to view the crime through the eyes of the
victim is misconduct at the guilt phase of trial; an appeal for sympathy for
the victim is out of place during an objective determination of guilt.’ ” (People
v. Seumanu (2015) 61 Cal.4th 1293, 1344; People v. Young (2019) 7 Cal.5th
905, 933.) But “ ‘[t]he prosecutor is entitled to comment on the credibility of
witnesses based on the evidence adduced at trial.’ ” (People v. Young, supra,

21
34 Cal.4th at p. 1190.) And in determining the credibility of a witness, a
juror is permitted to consider “any matter that has any tendency in reason to
prove or disprove the truthfulness” of the witness, including the witness’s
“demeanor while testifying and the manner in which [the witness] testifies.”
(Evid. Code, § 780, subd. (a).)
Were we to view the comment, “How do you think that feels as a twelve
year[ ]old?” in isolation, it could be construed as a possible appeal to the
jurors to put themselves in A.C.’s position. But the remark was made in the
broader context of discussing not only the background facts of A.C.’s
interviews with detectives and social workers, but A.C.’s credibility,
observing that her statements were “consistent with everything she’d been
saying” and that her emotions in the courtroom were “real emotions based on

22
real abuse.”8 Under the circumstances, defense counsel was not prejudicially
ineffective for failing to object to the remarks, because they were not
misconduct but proper comments on A.C.’s credibility based on the evidence.

8 In a fuller context, following the prosecutor’s statement about A.C.
writing out her list that “no kid should ever have to write,” the prosecutor
said: “And then she’s interviewed by a professional with detectives and social
workers sitting in the next room being video recorded, having to tell details of
what her grandpa did to her, having to talk about how she had to put her
mouth on her grandpa’s private parts, having to look at gingerbread
drawings. [¶] She was interviewed for, what, an hour and forty minutes
talking about this stuff? She was consistent with everything she’d been
saying. Was she able to talk about all that stuff? Is it weird to us that a
twelve-year-old girl can’t talk about the sexual acts she’s been committing,
that her grandpa made her commit since she was five? [¶] So she had to
write things down and then she wrote more notes. She wrote things that kids
her age shouldn’t know. That she would have to use her mouth. [¶] Do you
remember what she said in the interview when she was asked what would
happen to his private part when she would have to put her mouth on it? Do
you guys all remember that? She cringed. She cried. And she started
writing.” After discussing A.C.’s visceral reaction to Castanedo’s nickname
for her, the prosecutor said, “That’s real. Those are real emotions based on
real abuse. That’s not a little girl making up some story. Those are the types
of details that tell you that what she’s saying is the truth, and she reacted the
same way in the forensic interview.”
23
 Moreover, the comment was fleeting and in the context of the People’s

much longer closing argument, as well as the strength of A.C.’s testimony,9
we cannot say it is reasonably probable the outcome of the trial was affected
by Castanedo’s counsel’s asserted failings or the prosecutor’s remarks. Thus,
we conclude any deficiency in defense counsel’s performance did not result in
prejudice. (Accord, People v. Seumanu, supra, 61 Cal.4th at p. 1344
[prosecutor committed misconduct asking jury to imagine themselves in the
victim's shoes, but misconduct did not result in prejudice given strong

9 Castanedo describes the People’s case as not overwhelming. He bases
this statement on testimony by A.C.’s grandmother that A.C.’s mother had
once told her that her soon-to-be ex-husband had inappropriately touched
A.C., but later recanted the accusation. A.C.’s grandmother testified that
A.C. never accused her mother’s husband of inappropriately touching her.
Castanedo points to the jury’s request to review A.C.’s testimony and her
interview. Castanedo also points to the jury’s not guilty verdicts on counts 21
and 22 (alleging incidents of Castanedo using his hand to touch A.C.’s vagina
in his vehicle) out of 30 alleged counts. He refers to A.C.’s testimony that she
told her step-siblings she was kidding about her grandfather’s abuse. But
given Shultz’s testimony, the jury could conclude A.C.’s “kidding” remark was
entirely consistent with a child abuse victim. The jury began its
deliberations at about 9:45 a.m. on the morning of July 25, 2019, and even
with a read-back of A.C.’s testimony, it reached its verdicts on the remaining
28 counts by about 4:30 p.m. that same day. Though A.C.’s testimony may
have been a “point of discussion” (People v. Zaheer (2020) 54 Cal.App.5th 326,
340), it is clear given the number of charges and allegations and relatively
short period of deliberations that the jury was easily able to resolve any
issues about her credibility. (Accord, People v. Taylor (1990) 52 Cal.3d 719,
732 [rejecting claim that case was close considering the gravity of the jury’s
task based on multiple charges and special circumstance allegations].) Under
these circumstances, we cannot see this as the jury rejecting the prosecutor’s
case (compare People v. Vasquez (2018) 30 Cal.App.5th 786, 802-803) or
presenting a close case such that in the absence of any defense counsel error
there was a reasonable probability of a different result. (Strickland v.
Washington (1984) 466 U.S. 668, 693-694; People v. Ledesma (1987) 43 Cal.3d
171, 217-218.)
24
evidence of guilt and because the “few remarks [were made] in a much longer
closing argument, and an even longer trial”].) We cannot agree the
prosecutor’s argument rendered the trial fundamentally unfair or otherwise
infected it with such unfairness as to violate Castanedo’s constitutional
rights. (Id. at p. 1345.)
With regard to the remainder of the prosecutor's challenged comments,
there was no misconduct in the prosecutor commenting on A.C.’s demeanor
while testifying or the fact she was not an actress but a “real child” having to
talk about unpleasant things. A prosecutor has a “ ‘ “wide-ranging right to
discuss the case during closing argument [and to] fully state [his] views as to
what the evidence shows and to urge whatever conclusions [he] deems
proper. Opposing counsel may not complain on appeal if the reasoning is
faulty or the conclusions are illogical because these are matters for the jury to
determine.” ’ ” (People v. Seumanu, supra, 61 Cal.4th at p. 1342; People v.
Young, supra, 7 Cal.5th at p. 933 [prosecutor can properly cite evidence and
ask jury to draw logical inferences from it].) Further, in determining the
credibility of a witness, a juror is permitted to consider “any matter that has
any tendency in reason to prove or disprove the truthfulness” of the witness,
including the witness’s “demeanor while testifying and the manner in which
[the witness] testifies.” (Evid. Code, § 780, subd. (a).) It was not misconduct
for the prosecutor to comment on A.C.’s demeanor or reaction while A.C.
testified about her grandfather’s nickname for her. The rest of the
prosecutor’s challenged statements were fair comments on the evidence
presented at trial about A.C. having to undergo an unpleasant interview to
discuss Castanedo’s abuse. These arguments fall within the bounds of proper
argument by a prosecutor, thus defense counsel was not ineffective for failing
to object to them.

25
 Finally, the court instructed the jury: “Do not let bias, sympathy,
prejudice, or public opinion influence your decision.” Again, we presume the
jury followed this instruction. (People v. Flinner, supra, 10 Cal.5th at p. 717;
People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 857.) There was no
prejudicial misconduct in these remarks. Castanedo has not demonstrated
prejudice resulting from his counsel’s inaction.
C. Claim that the Prosecutor Misrepresented the Burden of Proof
Citing Griffin v. California (1965) 380 U.S. 609 (Griffin), Castanedo
contends the prosecutor impermissibly shifted the burden of proof when he
pointed out that Castanedo responded with “silence” after A.C.’s mother told
him via text message never to contact them again. Castanedo points to the
prosecutor’s remarks that his silence “speaks volumes” and suggestion that
an innocent person would have written back: “Innocent grandpa, fun-loving
didn’t-do-anything-wrong grandpa writes back: What are you talking about?
Doing what? [¶] Innocent grandpa doesn’t walk away from his daughter, [or]

his ‘little cute cute’ and the apple of his eye granddaughter.”10 Castanedo
additionally points to the prosecutor’s question and answer: “Why? [¶]
‘Cause he knew. He knew what he had been doing. He didn’t need anyone to
tell him. The jig was up and he walked away.” According to Castanedo,
while the prosecutor’s remarks did not refer to his failure to testify, “the
inference was that [he] had the burden to dispute what [A.C.] accused him of,
that because he did not respond to the message, this showed he was not an
‘innocent grandpa’ but a guilty one.” Castanedo argues this was misconduct
because he did not have the burden of proof, and the prosecutor did not
immediately correct the misstatement by telling the jury the prosecution bore
the burden of proof and Castanedo had no duty to produce evidence. He

10 The court overruled Castanedo’s counsel’s objection to this remark.
26
asserts “[t]he jury was left likely drawing a negative inference on [his] failure
to explain himself.”
Griffin, supra, 380 U.S. 609 prohibits a prosecutor from commenting on
a defendant’s failure to testify at trial. (People v. Tom (2014) 59 Cal.4th 1210,
1223; People v. Brady (2010) 50 Cal.4th 547, 565; People v. Vargas (1973) 9
Cal.3d 470, 475.) But the Fifth Amendment privilege underlying Griffin
“does not categorically bar the prosecution from relying on a defendant’s
pretrial silence.” (Tom, at p. 1223; Vargas, at p 475.) The prosecutor may
use a defendant’s pre-arrest silence in response to an incriminating question
as substantive evidence of guilt, provided the defendant has not invoked the
privilege against self-incrimination. (Tom, at p. 1223.) Further, the Griffin
rule “does not extend to comments on the state of the evidence or on the
failure of the defense to introduce material evidence or to call logical
witnesses.” (Brady, at p. 566.) Courts evaluate claims of Griffin error by
inquiring whether there is a reasonable likelihood that any of the challenged
comments could have been understood to refer to a defendant’s failure to
testify. (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1523.)
Castanedo claims that the prosecutor’s remarks impermissibly shifted
the burden of proof to him, so we will inquire whether, in context, there is a
reasonable likelihood the jury would understand the prosecutor’s remarks to
refer to Castanedo having the burden of proving his innocence or otherwise
misrepresenting the burden. (See People v. Champion (2005) 134
Cal.App.4th 1440, 1448 [“An assessment of whether the prosecutor made
appropriate use of [a] defendant’s post[-]arrest silence requires consideration
of the context of the prosecutor’s inquiry or argument”].) We conclude there
is no reasonable likelihood the jury would have so understood the
prosecutor’s remarks. The court explained just before closing arguments that

27
the People had the burden of proof, meaning the burden of proving Castanedo
guilty beyond a reasonable doubt. During his remarks about A.C.’s mother’s
text message, the prosecutor did not refer to any “burden of proof” or suggest
he was discussing trial burdens; he clearly was referring to Castanedo’s
pretrial silence in response to A.C.’s mother’s accusatory text message.
(Accord, People v. Clair (1992) 2 Cal.4th 629, 663 [rejecting defendant’s claim
of Griffin error for prosecutor’s comments bearing on the defendant’s “pretrial
silence or equivocal response in the face of [his girlfriend’s] accusations”
during a phone call tape-recorded by police]; People v. Bethea (1971) 18
Cal.App.3d 930, 936 [no error when prosecutor summarized the evidence and
commented that “ ‘[t]he state of the record is that there has been no
explanation given for this [evidence of guilt]’ ”; in such case, “There is
absolutely no reference to the fact that defendant did not take the stand, nor
is the remark susceptible of such interpretation by inference or innuendo”].)
Elsewhere in his closing argument regarding the uncharged crimes against
M.C. and K.R., the prosecutor told the jury they could use that evidence but
he “[s]till ha[d] to prove the charges beyond a reasonable doubt.”
While the prosecutor clearly meant the jurors to draw a negative
inference of guilt from Castanedo’s pretrial silence, that was permissible.
(People v. Tom, supra, 59 Cal.4th at p. 1223.) But we cannot agree that the
prosecutor’s statement suggested the jury draw an inference about the trial
burdens or insinuated that Castanedo should have presented evidence in his
own defense.
D. Claim that the Prosecutor Misstated the Law
Citing Cage v. Louisiana (1990) 498 U.S. 39, 41 (disapproved on
another point in Estelle v. McGuire (1991) 502 U.S. 62, 72-73, fn. 4) and U.S.
v. Byrd (2nd Cir. 1965) 352 F.2d 570, Castanedo contends the prosecutor

28
misrepresented the law and gave an inaccurate definition of proof beyond a
reasonable doubt when in rebuttal he argued to the jury: “It’s if you have a
reasonable doubt. The law doesn’t say if you have any uncertainty, he’s not
guilty. That’s not the law. So you need to focus on the evidence and the law.”
According to Castanedo, the remark allowed the jury to find him guilty based
on a degree of proof below that which the Constitution requires, and “jurors
would have believed if they were uncertain if the prosecution proved [he] was
guilty, this did not mean they had reasonable doubt and could find [him] not
guilty.” He argues, “Jurors could have been uncertain, the uncertainty the
equivalent of being without an ‘abiding conviction’ that the charge was true,
and found [him] not guilty.”
It is important to put the prosecutor’s remark in context. When
making it, the prosecutor was in the process of reminding the jury that what
the attorneys say was not evidence and “what we tell you the law is isn’t the
law.” The prosecutor said, “The law are [sic] the instructions that the judge
is going to give you. So when defense counsel stood up here yesterday and
talked to you about what reasonable doubt means—I’m going to talk to you a
little bit more about that instruction.” The prosecutor then stated: “[T]he
law isn’t if you have any doubt, he’s not guilty. No. It’s if you have a
reasonable doubt. The law doesn’t say if you have any uncertainty, he’s not
guilty. That’s not the law. So you need to focus on the evidence and the law.
Not what we say. Because you determine the truth and verdicts in this case.”
We conclude Castanedo’s counsel was not ineffective for failing to object
to these remarks because they do not amount to reversible misconduct. To
determine whether a prosecutor has committed such misconduct in context of
a claim he or she misstated the reasonable doubt standard, we examine (1)
whether it was reasonably likely that the prosecutor’s statements misled the

29
jury on reasonable doubt and (2) whether there is “a reasonable probability
that the prosecutor’s argument caused one or more jurors to convict
defendant based on a lesser standard than proof beyond a reasonable doubt.”
(People v. Centeno, supra, 60 Cal.4th at pp. 674, 677; People v. Johnsen,
supra, 10 Cal.5th at pp. 1165-1166.)
Here, the prosecutor’s statements were not reasonably likely to mislead
the jury about the reasonable doubt standard. The prosecutor was telling the
jury to not listen to either counsel’s interpretation of the law, but to follow
the court’s instructions. He was explaining that the court’s instruction on
reasonable doubt did not say the jury must find the defendant not guilty if
jurors held “any uncertainty,” which is an accurate statement about the
version of CALCRIM No. 220 given to the jury. The prosecutor was not
purporting to define the concept of reasonable doubt. (Compare People v.
Johnsen, supra, 10 Cal.5th 1116, 1166 [prosecutor’s comment that reasonable
doubt required jurors “to point to something in the evidence that makes them
have that doubt” was misconduct, as it was reasonable to construe it to
preclude jurors from having reasonable doubt solely based on the
insufficiency of the People’s evidence]; People v. Hill, supra, 17 Cal.4th at pp.
831-832 [prosecutor’s statement on the reasonable doubt concept:
“ ‘There must be some evidence from which there is a reason for a doubt. You
can’t say, well, one of the attorneys said so’ ” was misconduct because it was
“reasonably likely” the jury understood the prosecutor’s comment “to mean
defendant had the burden of producing evidence to demonstrate a reasonable
doubt of his guilt”].) We fail to see the applicability of Cage v. Louisiana,
supra, 498 U.S. 39, in which the court was held to have misinstructed the
jury on reasonable doubt, by stating it “must be such doubt as would give rise
to a grave uncertainty . . . [i]t is an actual substantial doubt” and its negation

30
involves a “moral certainty.” (Id. at p. 40.) Instructing the jury with these
phrases violated due process by suggesting to the jurors “a higher degree of
doubt than is required for acquittal under the reasonable doubt standard.”
(Id. at p. 41.) U.S. v. Byrd, supra, 352 F.2d 570 similarly involved a court
misinstructing a jury on the meaning and application of reasonable doubt,
stating, “ ‘It is a doubt to a moral certainty.’ ” (Id. at p. 575.) These cases do
not persuade us that the prosecutor in this case committed misconduct such
that Castanedo’s counsel was prejudicially ineffective for failing to object.
Further, even if we were to assume the prosecutor misstated the law,
we would conclude it was not reasonably likely the prosecutor’s statements
caused one or more jurors to convict Castanedo on a standard lower than that
beyond a reasonable doubt. (Accord, People v. Johnsen, supra, 10 Cal.5th at
p. 1167.) The trial court correctly instructed the jury on reasonable doubt.
That is, it instructed them that “[a] defendant in a criminal case is presumed
to be innocent” and “[t]his presumption requires that the People prove a
defendant guilty beyond a reasonable doubt.” The court told the jury that
“[p]roof beyond a reasonable doubt is proof that leaves with you an abiding

conviction that the charge is true.”11 It further told the jurors they “must
follow the law as I explain it to you even if you disagree with it,” and, “If you
believe that the attorneys’ comments on the law conflict with my instructions,
you must follow my instructions.” These instructions mitigated any

11 The court went on to instruct: “The evidence need not eliminate all
possible doubt because everything in life is open to some possible or
imaginary doubt. In deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and consider all
the evidence that was received throughout the entire trial. Unless the
evidence proves a defendant guilty beyond a reasonable doubt, he is entitled
to an acquittal and you must find him not guilty.”
31
misimpression the prosecutor’s remarks would have given the jury.
(Johnsen, at pp. 1167-1168.)
III. Abstract of Judgment
The reporter’s transcript for Castanedo’s sentencing hearing shows that
the trial court sentenced Castanedo to eight-year upper terms on counts 13
and 14 (the upper term at the time the offenses were committed).
Castanedo’s abstract of judgment, however, reflects 12-year terms for those
counts. The court’s oral pronouncement controls. (People v. Mitchell (2001)
26 Cal.4th 181, 185.) This court is authorized to correct clerical errors on our
own motion. (§ 1260; Mitchell, at p. 185; People v. Amaya (2015) 239
Cal.App.4th 379, 385.) We direct the trial court to correct the errors and
forward a certified copy of the corrected abstract of judgment to the
California Department of Corrections and Rehabilitation.

32
 DISPOSITION
The judgment is affirmed. The trial court is directed on remand to
correct the abstract of judgment to reflect eight-year upper terms on the
Penal Code section 288, subdivision (b)(1) offenses of counts 13 and 14, and
forward a certified copy of the corrected abstract of judgment to the
California Department of Corrections and Rehabilitation.

O’ROURKE, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.

33