People v. Ochoa CA4/1

Filed 6/20/23 P. v. Ochoa CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080014
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1405879 )
JOSE OCHOA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Bernard J. Schwartz, Judge. Reversed in part; affirmed in part; remanded
with directions.
Jason L. Jones, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
A. Natasha Cortina and Stephanie A. Mitchell, Deputy Attorneys General,
for Plaintiff and Respondent.
A jury convicted Jose Ochoa of aggravated sexual assault of a child by
forcible sodomy (Pen. Code,1 § 269, subd. (a)(3); count 1); aggravated sexual
assault of a child by forcible oral copulation (§ 269, subd. (a)(4); count 2);
11 counts of forcible lewd conduct on child under 14 years of age (§ 288,
subd. (b)(1); counts 3-10, 12-14); and nonforcible lewd conduct on a child
under 14 years of age (§ 288, subd. (a); count 11). The jury also found true
that Ochoa, in the commission of the offenses charged, committed an offense
against more than one victim within the meaning of section 667.61,
subdivision (e)(4).
The court sentenced Ochoa to prison for a total term of 210 years to life.
Ochoa appeals, contending counts 1 through 10 must be reversed
because there was insufficient evidence that he sexually assaulted and
committed lewd acts upon the victim by means of force or duress. In
addition, he asserts counts 1 and 2 must be reversed because the trial court
prejudicially erred by failing to sua sponte instruct the jury on nonforcible
sodomy and nonforcible oral copulation as lesser included offenses. We agree
with Ochoa that the court prejudicially erred in failing to provide the lesser
included offense jury instructions regarding counts 1 and 2. Thus, we reverse
Ochoa’s convictions on those two counts. However, because we find that
substantial evidence supports Ochoa’s convictions for counts 1 through 10, we
remand the matter back to the superior court to allow the prosecution the
opportunity to retry Ochoa on those two counts. In the alternative, we
conclude the evidence overwhelmingly establishes that Ochoa committed
nonforcible sodomy of a minor under 14 years old and nonforcible oral
copulation of a child under 14 years old; thus, if the prosecution elects not to
retry Ochoa as to counts 1 and 2, the superior court shall proceed as if the
1 Statutory references are to the Penal Code unless otherwise specified.
2
remittitur constituted a modification of judgment to reflect convictions under
sections 286, subdivision (c)(1) (count 1) and 288, subdivision (c)(1) (count 2).
In all other respects, we affirm the judgment.
FACTUAL BACKGROUND2
In 2000, Ochoa and Doe’s mother were in a relationship and living with
Ochoa’s brother, his wife (Doe’s maternal aunt), and their son and daughter.3
Doe lived with his grandparents during the week but stayed with his mother
and Ochoa on the weekends. When Doe was five years old, Ochoa started to
come into his bedroom when he was asleep and molest him. Ochoa was 32
years old at the time, and there was a “considerable” difference in size
between them.
When the incidents occurred, Doe’s mother would be at work or asleep
in her bedroom. Doe’s mother had a drinking problem, and she and Ochoa
would “drink all night.” When he was drunk, Ochoa would go into Doe’s
bedroom and fondle Doe’s buttocks under his underwear. He then would pull
Doe’s “shorts a little bit more down and, . . . , just be masturbating against
[his] butt, . . . .” In the beginning, Doe told Ochoa to stop, but Ochoa would
tell him “[j]ust a little bit more” or “[i]t’s okay.” Ochoa “just kind of
downplayed it.” Doe did not believe there was much he could do about the
situation. After Ochoa started coming into his bedroom in the “middle of the
night,” he “just kind of accept[ed] it.”
From the start, Ochoa told Doe not to tell anyone about what he was
doing. Doe did not tell anyone, and “[i]t just kept on happening.” At five
2 The jury convicted Ochoa of offenses committed against three victims.
He only appeals the counts related to a single victim, John Doe. As such, we
will only discuss the facts relevant to Ochoa’s appeal.
3 The daughter later became another victim of Ochoa.
3
years old, Doe trusted Ochoa and followed his orders. Doe did not know his
biological father, and Ochoa had been a father figure to him. If Ochoa asked
him to do something, Doe would do it, “[n]o questions asked.”
Ochoa’s molestation of Doe escalated to Ochoa putting the tip of his
penis in Doe’s anus. Ochoa “never fully” put his penis “all the way [in].” Doe
explained, “It’s just masturbating, him coming on my ass, and then just
putting the tip.” Doe estimated that Ochoa put the tip of his penis in his
“butt” 10 to 15 times and touched him with his hands the same number of
times.
Sometimes when Doe’s mother was at work, Ochoa would watch
pornographic movies on television and masturbate. It became a “common
occurrence” for Ochoa to show Doe pornographic movies. Doe would
masturbate too, and then it would “escalate[ ] from there.”
Ochoa and Doe’s mother moved to a different house when Doe was in
third or fourth grade. By that time, Ochoa and Doe’s mother had two
children together. While visiting Ochoa and his mother at that house, Ochoa
molested Doe more than 15 times as the events were occurring “every
weekend.” The molestation was not limited as Doe explained: “It was
molest, masturbating in my ass, putting the tip of his penis in my ass, and
then I’d give him oral too.” It “happened all together” at Ochoa’s direction.
One time when Doe’s mother was working late, Doe saw Ochoa in the
living room watching pornography and masturbating. Ochoa told Doe to get
“ice cream” from the refrigerator. Ochoa rubbed the ice cream on his penis
and told Doe to “lick it off, that it will taste just the same.” Doe put his
mouth on Ochoa’s penis and performed “oral.”
Another time, Doe’s mother and Ochoa bought Doe a remote-controlled
car at a swap meet. Doe was very happy because typically he did not get
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many gifts. Later that day, Ochoa got into the shower with Doe and started
“masturbating against [Doe’s] ass.” Ochoa told him that if he “want[ed]
another toy car, you just got to bend over.” Doe did what Ochoa told him, and
Ochoa “[p]ut the tip of his penis in.”
When Doe was in fifth or sixth grade, Ochoa and Doe’s mother moved
to a different house where Ochoa continued to molest him. For the most part,
Ochoa and Doe watched pornography and “masturbate[ed] with each other.”
There were times when Ochoa would “touch [Doe’s] butt or whatever,” but
putting the tip of his penis into his “butt” “actually calmed down a bit.”
In 2008, Doe’s mother passed away from “[d]rinking too much.” After
that, Doe stopped visiting Ochoa, and the molestation ended.
As he got older, Doe thought a lot about what Ochoa had done to him
and got angrier. It also was “complicated” because he still wanted to see
Ochoa. When he was 18 years old, Doe told his girlfriend about the abuse
and she encouraged him to tell his family. Doe told his grandparents after he
began to suspect that Ochoa had been doing something to his cousin, and he
started to blame himself. Doe had been embarrassed to tell anyone about the
abuse when he was younger. He also thought that if he “said something,
[Ochoa] would have got in trouble” and he “wouldn’t have had a dad.”
DISCUSSION
I
SUBSTANTIAL EVIDENCE
A. Ochoa’s Contentions
Ochoa contends that the prosecution failed to present substantial
evidence of force, duress, or fear to support the two aggravated sexual assault
counts as well as the eight counts of forcible lewd conduct. We disagree.
5
B. Background
During closing argument, although the prosecutor briefly alluded to
issues of fear and force, he focused on duress. In doing so, he urged the jury
to “consider all the circumstances, including the age of the child and his
relationship to the defendant.” He emphasized the “considerable size
difference” and “relationship dynamic.” The prosecutor noted that Ochoa
directed Doe to perform the sex acts, “taking advantage of [his] position of
trust,” and Ochoa ignored Doe’s pleas for Ochoa to stop. He explained that
Doe “knew how it was going to end because he tried stopping him. But he
also looked up to Mr. Ochoa. He followed Mr. Ochoa’s instructions. So he did
what Mr. Ochoa wanted him to do.”
The prosecutor discussed sodomy, oral copulation, and the lewd acts by
force, arguing primarily that the “duress arguments are there.” He pointed
out that Ochoa told Doe not to tell anyone about the molestation.
During his closing argument, Ochoa’s trial counsel argued, among
other things, that “[t]here was no evidence that Mr. Ochoa threatened [Doe]
in any way whatsoever.” However, the focus of counsel’s argument regarding
Doe was that he made up the accusations against Ochoa to help his
grandmother in a custody battle with Ochoa.
The prosecutor returned to the issue of duress during his rebuttal
closing argument, pointing the jury to the evidence that supported the
prosecution’s theory of the case. For example, the prosecutor emphasized
that Doe looked up to Ochoa and “would do anything that Mr. Ochoa wanted
him to do.” He maintained that Doe did not want to shower with Ochoa or be
molested in bed by Ochoa but did so simply because of Ochoa.
Further, the prosecutor reminded the jury of the duress instruction: “Is
it something that he would normally do? Is he normally going to lick ice
6
cream off of Mr. Ochoa’s penis? No. It’s a resounding no. And you guys all
know that.”
C. Analysis
When considering a challenge to the sufficiency of the evidence to
support a criminal conviction, we “review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid value—
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 (Johnson);
see Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) “In making this
determination, we do not reweigh the evidence, resolve conflicts in the
evidence, or reevaluate the credibility of witnesses.” (People v. Cortes (1999)
71 Cal.App.4th 62, 71.)
As the prosecution focused on duress as to Doe, we evaluate only
whether the prosecution presented substantial evidence of duress.
“ ‘ “Duress” has been 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.” . . . [D]uress involves psychological coercion. Duress
can arise from various circumstances, including the relationship between the
defendant and the victim and their relative ages and sizes . . . . “Where the
defendant is a family member and the victim is young, . . . the position of
dominance and authority of the defendant and his continuous exploitation of
the victim” [are] relevant to the existence of duress.’ [Citation.]” (People v.
Espinoza (2002) 95 Cal.App.4th 1287, 1319-1320 (Espinoza).)
7
“[T]he legal definition of duress is objective in nature and not
dependent on the response exhibited by a particular victim.” (People v. Soto
(2011) 51 Cal.4th 229, 246.) Courts consider the totality of the circumstances
in determining whether a defendant committed sexual abuse of a child by
means of duress. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1072
(Thomas).) “The totality of the circumstances include the victim’s age, [his
or] her relationship to the perpetrator, threats to harm the victim, physically
controlling the victim when the victim attempts to resist, warnings to the
victim that revealing the molestation would result in jeopardizing the family,
and the relative physical vulnerability of the child.” (Ibid; People v. Senior
(1992) 3 Cal.App.4th 765, 775; People v. Schulz (1992) 2 Cal.App.4th 999,
1005 (Schulz).)
Ochoa argues that the instant matter is analogous to Espinoza. There,
the appellate court found insufficient evidence of duress to support a count of
lewd conduct by force or duress and a count of attempted rape. The
defendant had repeatedly come into his daughter’s bedroom at night while
she was sleeping, pulled down her pants, and rubbed her breasts and vagina.
(Espinoza, supra, 95 Cal.App.4th at p. 1293.) His daughter did not “ ‘do
anything’ ” because she was scared and frightened, and she did not report
these initial molests because she was afraid that the defendant would “ ‘do
something.’ ” (Ibid.) After molesting her several times, defendant came into
her bedroom one final time. This final time was the basis for the lewd
conduct by force or duress and attempted rape counts. The defendant put his
tongue in her mouth, licked her vagina, and tried to put his penis in her
vagina. (Ibid.) Her only response was that she “ ‘moved’ ” and thereby
prevented his penis from entering her. The defendant responded by
apologizing and asking for her forgiveness. (Ibid.)
8
The trial court found duress based on the victim’s “dependence on
defendant, the size and age disparities, her limited intellectual level and her
fear of defendant.” (Espinoza, supra, 95 Cal.App.4th at p. 1319.) On appeal,
the court distinguished its prior decision in Schulz, supra, 2 Cal.App.4th 999:
“We agree with this court’s conclusion in Schulz that, where the defendant
grabbed and restrained the nine-year-old distraught victim, cornered her and
used his physical dominance in conjunction with his psychological dominance
to overcome her resistance, the lewd act was accomplished by duress.
However, the evidence before us is substantially different. Defendant did not
grab, restrain or corner [his daughter] during the final incident out of which
the Penal Code section 288, subdivision (b) count and the attempted rape
count arose. [His daughter] did not cry, and she offered no resistance.
Instead, defendant simply lewdly touched and attempted intercourse with a
victim who made no oral or physical response to his acts.” (Espinoza, at
p. 1320, fn. omitted.) The appellate court noted that “Duress cannot be
established unless there is evidence that ‘the victim[’s] participation was
impelled, at least partly, by an implied threat . . . .’ ” (Id. at p. 1321.)
Here, Ochoa argues that the prosecution’s evidence did not support a
finding of duress under Espinoza because “there was no evidence establishing
duress by implied threats.” He claims that there was no evidence that he
made any direct or implied threats that Doe would suffer adverse
consequences if he did not acquiesce to Ochoa’s acts of sexual abuse. Ochoa’s
view of the evidence against him is too limited.
“ ‘We “must accept logical inferences that the [factfinder] might have
drawn from the circumstantial evidence. [Citation.]” . . . Where the
circumstances reasonably justify the trier of fact’s findings, a reviewing
court’s conclusion the circumstances might also reasonably be reconciled with
9
a contrary finding does not warrant the judgment’s reversal. [Citation.]’
[Citation.]” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Here, we conclude there was sufficient evidence from which the jury
could infer that Ochoa committed sodomy, oral copulation, and lewd acts
upon Doe by means of duress. Ochoa was a father figure in Doe’s life and
held a position of trust. When the molestation began, Doe lived with his
grandparents during the week and with his mother and Ochoa on the
weekends. Doe’s mother was an alcoholic, and Ochoa was the only father Doe
knew.
Additionally, there was a great disparity in both age and size between
Ochoa and Doe. Ochoa was 27 years older (and physically larger) than Doe.
As Doe testified at trial, if Ochoa asked him to do something, he would do it
“[n]o questions asked.” Because of Ochoa’s position of authority and Doe’s
young age, Doe was “particularly susceptible to being coerced.” (See Thomas,
supra, 15 Cal.App.5th at p. 1073.)
Despite doing what Ochoa asked, Doe initially resisted Ochoa’s
molestation attempts. However, Ochoa overcame Doe’s will by ignoring his
protests and using his position of authority and trust. Doe testified that
Ochoa would come into his bedroom while he was asleep and molest him. At
first, Doe told Ochoa to stop; instead of stopping, Ochoa “downplayed” and
minimized the abuse. Ochoa’s suggestion, telling Doe “[j]ust a little bit more”
or “[i]t’s okay” while molesting him were not mere “reassuring words.”
Rather, Ochoa’s statements provide further support for the inference that
Doe was powerless to stop the abuse, and it did not matter to Ochoa that Doe
was pleading for him to stop.
Additionally, duress was further established by Ochoa’s instructions to
Doe not to tell anyone. Doe did not tell, and the abuse “just kept on
10
happening.” Doe had been a “kid” at the time and was embarrassed to tell
anyone. He also was concerned that Ochoa would get in trouble if he told,
and he did not want to lose his “dad.” Against this background, a reasonable
juror could conclude that Ochoa took advantage of his position and Doe’s
vulnerability to molest him every weekend for eight years, and each of the
charged acts was committed by means of duress.
In addition, we are not persuaded by Ochoa’s contentions that the
shower and ice cream incidents did not involve any duress. During the
shower incident, Ochoa told Doe to “bend over” if he ever wanted another toy
car. Ochoa argues these words constituted bribery, which he claims is not
duress. Yet, another reasonable interpretation of Ochoa’s words is that if Doe
wanted Ochoa to continue to be a father figure in his life and occasionally get
him gifts, Doe better do what Ochoa asked even if he did not want to.
During the ice cream incident, Ochoa told Doe to bring him ice cream
from the refrigerator. Ochoa then rubbed the ice cream on his penis and
directed Doe to “lick it off.” This event underscores how Doe followed Ochoa’s
directions even if Doe had to engage in sex acts that he was not willing to
perform.
Moreover, based on the same evidence supporting duress discussed
ante (Doe’s young age, fear of defying Ochoa, and his consistent following of
Ochoa’s orders), the evidence supports the inference that Doe only engaged in
sex acts with Ochoa in response to Ochoa’s parental and physical authority.
Such a conclusion is buttressed because Doe eventually did simply acquiesce
to being molested but took a more active role, only at Ochoa’s urging, in
orally copulating Ochoa.
In short, on the record before us, we determine that substantial
evidence supports the jury’s finding of duress. We therefore reject Ochoa’s
11
substantial evidence challenge to the aggravated sexual assault and forcible
lewd conduct counts.
II
FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSES
A. Ochoa’s Contentions
Ochoa maintains his convictions under counts 1 and 2 must be reversed
for the trial court’s failure to sua sponte instruct the jury as to the lesser
included offenses. As to count 1 (aggravated sexual assault by forcible
sodomy) and count 2 (aggravated sexual assault by forcible oral copulation),
Ochoa claims the jury should have been instructed as to the lesser included
offense nonforcible sodomy of a minor and nonforcible oral copulation of a
minor. The People counter that substantial evidence did not support the
giving of a lesser included instruction for counts 1 and 2 (based on nonforcible
acts with a minor), and even if such evidence existed, the error was harmless.
Ochoa has the better argument.
B. Background
Counts 1 and 2 both alleged aggravated sexual assault of a minor, one
based on an act of forcible sodomy of Doe (§ 269, subd. (a)(3)) and the other
based on an act of forcible oral copulation on Doe (§ 269, subd. (a)(4)). These
two crimes are alleged to have occurred between December 14, 2000 and
December 13, 2008. Ochoa also was charged with eight counts of forcible
lewd touching of Doe with count 3 alleged to have occurred between
December 14, 2000 through December 13, 2001; count 4 alleged to have
occurred between December 14, 2001 and December 13, 2002; count 5 alleged
to have occurred between December 14, 2002 and December 13, 2003; count 6
alleged to have occurred between December 14, 2003 and December 13, 2004;
count 7 alleged to have occurred between December 14, 2004 and December
12
13, 2005; count 8 alleged to have occurred between December 14, 2005 and
December 13, 2006; count 9 alleged to have occurred between December 14,
2006 and December 13, 2007; and count 10 alleged to have occurred between
December 14, 2007 and December 13, 2008.
As to counts 1 and 2, the court instructed the jury with CALCRIM
No. 1123 (Aggravated Sexual Assault of Child under 14), CALCRIM No. 1030
(Sodomy by Force, Fear, or Threats), CALCRIM No. 1015 (Oral Copulation by
Force, Fear, or Threats), and CALCRIM No. 460 (Attempt Other Than
Attempted Murder) (only as to count 1). Regarding counts 3 through 10, the
court instructed the jury with CALCRIM No. 1111 (Lewd or Lascivious Act:
By Force or Fear), CALCRIM No. 900 (Simple Assault), and CALCRIM
No. 1110 (Lewd and Lascivious Act: Child Under 14 Years).
In discussing the jury instructions, the parties did not discuss the
possibility of providing the jury with instructions regarding nonforcible
sodomy and nonforcible oral copulation of a minor as lesser included offenses
of aggravated sexual assault of a minor by forcible sodomy and forcible oral
copulation. However before discussing the instructions, the court noted that
there appeared to be “sufficient evidence as to Count 1 and 2 such that a
reasonable jury could convict the defendant on those counts and that such
13
conviction would be sustained on appeal.” The court then clarified that any
section 1118.1 motion4 as to counts 1 and 2 would be denied.
During the subsequent discussion of the jury instructions, the court
asked defense counsel if he would like the lesser included instruction for lewd
or lascivious conduct (without force or fear) for the charged offenses of lewd
and lascivious conduct with force or fear. Defense counsel responded that he
“thought it was sua sponte, but [he] would request it.” The court assented,
“All right. Well, I agree. It certainly should be given, especially given the
state of the evidence. There could be an argument that the [section] 288
offense was not done with force or duress or any one of those other elements
that would be necessary.”
During jury deliberations, the jury indicated that it was having trouble
reaching agreement on counts 1 and 2. The foreperson requested more
evidence for the jury. Later, the foreperson explained that the jury had
resolved the issue with count 2 but had not reached agreement on count 1.
The foreperson requested additional evidence, but the court explained that
the jury could not receive any more evidence. The foreperson stated that the
jury had taken three to five votes on guilt as to count 1. Initially, the jury
was divided 10 to 2, but after discussing the evidence more, the split was 11
to 1.
4 Section 1118.1 provides: “In a case tried before a jury, the court on
motion of the defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for decision, shall
order the entry of a judgment of acquittal of one or more of the offenses
charged in the accusatory pleading if the evidence then before the court is
insufficient to sustain a conviction of such offense or offenses on appeal. If
such a motion for judgment of acquittal at the close of the evidence offered by
the prosecution is not granted, the defendant may offer evidence without first
having reserved that right.”
14
Another juror interjected, “So there was discussions as to, if we could
not agree on the higher, is there—you know, there was some discussion that
we could possibly agree on the lesser. But the person that was abstaining
from agreeing on the lesser wanted clarification on what would happen.”5
The juror clarified that the jurors wanted to know what would happen if they
could not agree. The court explained if the jury could not reach agreement, it
would result in a hung jury.
Another juror then asked if they could submit questions to the
prosecutor and defense counsel regarding evidence “not presented during
trial.” The court again explained that the evidence was closed and no more
evidence would be provided.
Yet another juror asked if the court would explain the concept of a
hung jury. The court responded that a hung jury occurs when there is no
verdict on a specific count. The juror then asked, “I mean, when you say
there’s no verdict, does that mean it’s dropped?” The court told the jurors not
to worry about what happens with hung counts.
At trial, Doe testified as to general and specific acts by Ochoa and the
prosecutor did not make an election as to which act corresponded with which
count. The jury returned general verdicts that did not identify the incidents
that provided a basis for the convictions.
5 As to count 1, the jury was instructed on the lesser included offense of
attempted aggravated sexual assault. The jurors were instructed that they
could not convict on this lesser crime unless they agreed Ochoa was not guilty
of aggravated sexual assault. The jurors were also instructed that they could
not convict Ochoa of the lesser crime unless they all agreed he was not guilty
of the greater crime.
15
C. Analysis
We review whether a trial court improperly failed to instruct on a
lesser included offense de novo. (People v. Souza (2012) 54 Cal.4th 90, 113;
People v. Brown (2016) 245 Cal.App.4th 140, 152.) A court is obligated to
instruct the jury on a lesser included offense only if there is substantial
evidence supporting it. (People v. Breverman (1998) 19 Cal.4th 142, 154, 162
(Breverman).) Substantial evidence is “ ‘ “evidence that a reasonable jury
could find persuasive” ’ [citation], which, if accepted, ‘ “would absolve [the]
defendant from guilt of the greater offense” [citation] but not the lesser.’ ”
(People v. Cole (2004) 33 Cal.4th 1158, 1218; see Breverman, at p. 162.) We
do not evaluate the credibility of witnesses, and we resolve doubts in favor of
giving the instruction. (Breverman, at pp. 154, 162; see People v. Strozier
(1993) 20 Cal.App.4th 55, 63.)
In the instant matter, the People all but concede that nonforcible
sodomy and nonforcible oral copulation of a minor are lesser included offenses
of aggravated sexual assault of a minor by forcible sodomy and forcible oral
16
copulation.6 Thus, we will focus on the People’s two primary arguments
regarding why the court’s failure to give the lesser included offense
instructions are not reversible error: (1) substantial evidence did not support
the giving of the instructions on the lesser included offenses and (2) even if
the court committed error here, it was harmless.
Regarding the issue of whether substantial evidence supports the
giving of the instructions on the lesser included offenses, the parties largely
retreat to their substantial evidence arguments concerning count 1. Thus,
Ochoa contends that the evidence “was far from overwhelming,” and the
People maintain, “[n]o reasonable juror could conclude that [Ochoa] engaged
in non-forcible sodomy and non-forcible oral copulation with John Doe, but
not forcible sodomy and forcible oral copulation by means of duress.” Ochoa
specifically points to the shower incident for count 1 and the ice cream
6 The People provide some cursory analysis wherein they argue that,
under a 2006 amendment to section 269, nonforcible sodomy and nonforcible
oral copulation of a minor are not necessarily included offenses of aggravated
sexual assault of a minor by forcible sodomy and forcible oral copulation.
However, they note that, at trial, the prosecutor did not prove or argue that
counts 1 and 2 occurred after the 2006 amendment. Instead, the information
stated that those two offenses occurred between December 14, 2000 and
December 13, 2008. In fact, although Ochoa points to the shower incident as
being the basis of count 1 and the ice cream incident constituting count 2, the
People do not necessarily agree. In any event, because it cannot be
established on the record before us (especially as the jury was not asked to
decide the issue), when count 1 and count 2 were committed, we do not
consider the People’s argument that the 2006 amendment to section 269 may
apply for purposes of our analysis on the lesser included offense issue. (See
People v. Rojas (2015) 237 Cal.App.4th 1298, 1306, quoting People v. Hiscox
(2006) 136 Cal.App.4th 253, 256 [“ ‘[I]t is the prosecution’s responsibility to
prove to the jury that the charged offenses occurred on or after the effective
date of the statute providing for the defendant’s punishment’ ”].)
17
incident for count 2. Nonetheless, the People emphasize that the prosecution
did not link a specific act with either counts 1 or 2.
Although the parties largely seem to be arguing past each other, we
observe that the People’s argument gives us pause. They note that the
prosecution did not offer any specific act to satisfy count 1 or 2. Therefore,
any encounter between Ochoa and Doe in which sodomy or oral copulation
occurred could have been the basis for those two counts respectively. Such
acts also could have formed the bases of the offenses for counts 3 through 10
as to Doe. While the court did find evidence sufficient to support convictions
for counts 1 and 2, it also observed that, “given the state of the evidence,”
instructions of the lesser included offenses for counts 3 through 10 should be
given. Accordingly, on the record before us, we see nothing that distinguishes
counts 1 and 2 from counts 3 through 10 in terms of providing jury
instructions regarding lesser included offenses. Alternatively stated, if the
evidence supported the giving of instructions regarding the lesser included
offenses as to counts 3 through 10 and the prosecution did not distinguish
between acts that could have been the basis of counts 1 and 2 as opposed to
counts 3 through 10, we conclude it was error not to provide instructions for
the lesser included offenses of nonforcible sodomy and nonforcible oral
copulation for counts 1 and 2. We thus turn to whether this error was
harmless.
The parties agree on the standard for evaluating prejudice here. The
“generally applicable California test for harmless error” is set forth in
People v. Watson (1956) 46 Cal.2d 818. (Breverman, supra, 19 Cal.4th at
p. 176.) Under the Watson test, we deem an error harmless unless it is
“reasonably probable” the outcome would have been different in the absence
of the error. (Watson, at p. 836.) Our high court has “ ‘ “made clear that a
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‘probability’ in this context does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.” ’ ” (Richardson v.
Superior Court (2008) 43 Cal.4th 1040, 1050, italics omitted.) And several
California appellate courts have concluded that a hung jury, as opposed to an
acquittal, is a more favorable outcome for purposes of harmless error review
under Watson. (See People v. Doane (2021) 66 Cal.App.5th 965, 984 [“Here,
the question is whether it is reasonably probable that, absent the errors, at
least one juror would have voted to acquit Doane of gross vehicular
manslaughter”]; People v. Dryden (2021) 60 Cal.App.5th 1007, 1025 [“[W]e
consider whether it is reasonably probable that one or more jurors would
conclude that the prosecution failed to meet its burden of proving beyond a
reasonable doubt that defendant did not act in lawful self-defense if this case
were tried without the erroneous admission of the prior acts evidence”];
People v. Zaheer (2020) 54 Cal.App.5th 326, 341 [“[T]here is a reasonable
chance that at least one juror relied on the prospect of a different car to
reconcile his or her doubts about the reliability of Martha’s testimony”];
cf. People v. Winkler (2020) 56 Cal.App.5th 1102, 1171 [finding error
harmless because there was no reasonable probability that “even a hung jury
would have been achieved”].)
Here, the record indicates that the issue of duress as to counts 1 and 2
was a close call. Ochoa explicitly challenged whether evidence existed
supporting a finding of duress as to counts 1 and 2. Further, the jury initially
indicated that it had reached a verdict on counts 3 through 10 but could not
agree as to counts 1 and 2. Although the next day the jury reached a verdict
as to count 2, it remained unsure as to count 1. The foreperson asked for
additional evidence, but the court explained that the jury had to rely only on
the evidence it had received. The court then asked the foreperson whether
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further discussions could lead to a verdict on count 1, and the foreperson
replied that he did not believe a verdict could be achieved. To this end, the
foreperson indicated that the jury had voted on count 1 three to five times
with an original split of 10 to 2, which had become 11 to 1. Additionally,
other jurors asked questions about the lesser included offense of attempt and
what would happen if the jury could not reach a verdict on count 1.
The People minimize the significance of the jury’s questions and
inability to initially reach a verdict on counts 1 and 2 by emphasizing that
the jury found Ochoa guilty of eight counts of forcible lewd conduct, which
required the jury to find that Ochoa committed the acts by means of “force,
violence, duress, menace, or fear of immediate and unlawful bodily injury to
the child or someone else.” (CALCRIM No. 1111.) The People also point out
that the jury reached the convictions on the forcible lewd conduct despite
being provided with an instruction on the lesser included offense of lewd
conduct.
Yet, the forcible lewd conduct offenses are not the same as the offenses
for aggravated sexual assault of a child by forcible sodomy and aggravated
sexual assault of a child by forcible oral copulation. Indeed, the difference is
borne out by the jury’s questions regarding reasonable doubt as to counts 1
and 2. Moreover, the issue is all the more murky because, at trial, the
prosecutor did not offer any specific acts to satisfy counts 1 and 2 but,
instead, allowed the jury to select what acts satisfied counts 1 through 10.
And, as the court acknowledged, the state of the evidence, at least as to the
forcible lewd conduct offenses, required the giving of the instruction
regarding the lesser included offense of lewd conduct because “[t]here could
be an argument that the [section] 288 offense was not done with force or
duress or any one of those other elements that would be necessary.” The
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court’s comments suggest that the evidence of force or duress was not
overwhelming.7 Moreover, as the acts proving counts 1 and 2 could be
interchangeable with the acts constituting counts 3 through 10, we are all the
more bothered by the trial court’s failure to give the jury instructions as to
the lesser included offenses of nonforcible sodomy and nonforcible oral
copulation.
Nor does our analysis change if we consider that the jury was given an
instruction for the lesser included offense of attempted aggravated sexual of a
child by forcible sodomy. That lesser included offense hinged on whether
Ochoa actually penetrated the victim not whether duress was proved.
In short, on the record before us, we conclude that there is a reasonable
chance that Ochoa could have achieved a more favorable result had the
instructional error not occurred. In reaching this conclusion, we agree with
the other appellate courts who have concluded that a hung jury constitutes a
more favorable result under the law. (See People v. Doane, supra, 66
Cal.App.5th at p. 984; People v. Dryden, supra, 60 Cal.App.5th at p. 1025.)
That said, it appears that the evidence overwhelmingly supports convictions
for nonforcible sodomy (§ 286, subd. (c)(1)) and nonforcible oral copulation
(§ 287, subd. (c)(1)).
7 The fact that we found substantial evidence supporting the convictions
under counts 1 and 2 does not undermine our analysis of prejudice here. For
a substantial evidence review, we must look at the evidence in a light most
favorable to the jury’s verdict. (Johnson, supra, 26 Cal.3d at p. 578.) For our
harmless error review, we employ a different standard to ascertain whether
there was a reasonable chance a more favorable result could be achieved
absent the error. (Richardson v. Superior Court, supra, 43 Cal.4th at
p. 1050.)
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DISPOSITION
Ochoa’s convictions under counts 1 and 2 are reversed. If the People do
not bring Ochoa to retrial on these counts within the time set forth in
section 1382 (i.e., 60 days after the filing of the remittitur unless good cause
is shown for a different period or Ochoa waives the 60-day requirement), the
court shall proceed as if the remittitur constituted a modification of judgment
to reflect convictions under sections 286, subdivision (c)(1) (count 1) and 288,
subdivision (c)(1) (count 2).
We remand this case back to the superior court to resentence Ochoa
consistent with this opinion, subject to any retrial on counts 1 and 2. In all
other aspects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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