225 Cal.App.4th 126
Cal. Ct. App.2014Background
- Two incidents in BT, 2009 and 2010, involving touching and alleged penetration by Ngo in a shared San José home.
- Second trial in 2012 charged four counts: 2009 and 2010 sexual penetrations and lewd acts by force; one simple battery verdict for count 3.
- Jury convicted counts 1, 2, and 4; count 3 reduced to simple battery.
- Unanimity instruction mis-stated 2009 as 2010 for count 4, expanding the time period.
- Defense and prosecution presented conflicting testimony and expert opinions on child sexual abuse accommodation syndrome.
- Court remanded for possible retrial on counts 1 and 4; count 1 may be retried or reduced to attempted sexual penetration; count 4 reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Unanimity instruction misstated the time period for Count 4 | Ngo argues the 2009 act could be prosecuted under 2010 date, violating due process | Ng o contends the error prejudiced the verdict | Reversal of Count 4; prejudicial error established |
| Failure to instruct on attempted sexual penetration as a lesser included offense for Count 1 | Prosecution argues no sua sponte duty; evidence insufficient | Defense argues duty to instruct; could alter outcome | Reversal of Count 1; option to retry or reduce to attempted penetration |
| General vs. specific intent instruction for Count 1 | Count 1 requires specific intent; CALCRIM 250 inappropriate | Ambiguity could mislead; error not fatal | Error harmless; did not change outcome; count 1 conviction subject to potential retrial/reduction per remittitur |
Key Cases Cited
- People v. Catlin, 26 Cal.4th 81 (Cal. 2001) (forfeiture rule on erroneous instructions; substantial rights review)
- People v. Hughes, 27 Cal.4th 287 (Cal. 2002) (reasonable likelihood standard for potentially misleading instructions)
- Boyde v. California, 494 U.S. 370 (U.S. 1990) (reasonable likelihood standard for ambiguous instructions; reliance on one instruction over another)
- Chapman v. California, 386 U.S. 18 (U.S. 1967) (harmless error standard in constitutional claims; framework for review)
- People v. Breverman, 19 Cal.4th 142 (Cal. 1998) (standard for assessing failure to instruct on lesser included offenses (Watson))