People v. Castenda CA4/3

INTRODUCTION

Defendant Matthew Castaneda appeals from the judgment entered after a jury found him guilty of committing a lewd act on a child under 14 years of age (the lewd act offense) and of committing an aggravated assault on a child under 14 years of age in the form of forcible sodomy (the forcible sodomy offense). Before trial, Castaneda admitted he had suffered a prior felony conviction. He contends the trial court erroneously instructed the jury with a former version of CALCRIM No. 1110 (CALCRIM No. 1110) because it contained language that might have confused the jury and lightened the prosecution’s burden of proof as to the lewd act offense. Castaneda further contends the trial court erred by failing to instruct the jury on the victim’s withdrawal of consent as to the forcible sodomy offense. We affirm. The version of CALCRIM No. 1110, given to the jury in this case, properly states the law, is not confusing, and did not lighten the prosecution’s burden of proof. Even assuming the trial court had a sua sponte obligation to instruct the jury on withdrawal of consent as to the forcible sodomy offense, any error in failing to give such an instruction was…