People v. Ochoa CA4/1, D080014M

Background

Defendant Jose Ochoa was convicted by a jury of multiple child sexual offenses: aggravated sexual assault by forcible sodomy (count 1), aggravated sexual assault by forcible oral copulation (count 2), 11 counts of forcible lewd conduct on a child under 14 (counts 3–10, 12–14), and one count of nonforcible lewd conduct (count 11); the jury found multiple-victim sentencing enhancement under § 667.61(e)(4). The trial court sentenced Ochoa to 210 years to life.
Victim (John Doe) testified the abuse began when he was about five and lasted through childhood; Ochoa was a much older father-figure who molested Doe repeatedly (fondling, oral sex, and partial anal penetration), showed pornography, and told Doe not to tell anyone.
The prosecutor argued the aggravated counts were committed by means of duress (psychological coercion based on age, authority, size disparity, repeated exploitation, and instructions not to tell); defense argued lack of threats and suggested fabrication.
The jury returned general verdicts (prosecution did not tie specific acts to specific counts) and initially had difficulty reaching verdicts on counts 1 and 2; the court instructed on forcible offenses and on attempt for one count but did not sua sponte instruct on nonforcible sodomy and nonforcible oral copulation as lesser included offenses for counts 1 and 2.
On appeal Ochoa challenged (1) insufficiency of evidence of force/duress for counts 1–10 and (2) the trial court’s failure to instruct sua sponte on lesser included nonforcible offenses for counts 1 and 2.

Issues

Issue	Plaintiff's Argument (People)	Defendant's Argument (Ochoa)	Held
Whether substantial evidence supports findings of force/duress for aggravated sodomy/oral copulation (counts 1–2) and forcible lewd conduct (counts 3–10)	Evidence of age/size disparity, position of trust, repeated exploitation, victim’s initial resistance then acquiescence, and instructions not to tell supported duress—so convictions should stand	No direct or implied threats; acts were not shown to be accomplished by duress — convictions should be reversed for lack of substantial evidence	Court held substantial evidence of duress supported counts 1–10 and rejected insufficiency challenge for those counts
Whether trial court erred by failing to sua sponte instruct on lesser included offenses (nonforcible sodomy and nonforcible oral copulation) for counts 1–2 and whether any error was harmless	People argued the evidence did not support lesser nonforcible instructions and any error was harmless because jury convicted on multiple forcible counts	Ochoa argued substantial evidence supported the lesser nonforcible offenses and the court’s failure to instruct was prejudicial; a hung jury was realistic absent the error	Court found omission of lesser included instructions for counts 1–2 was reversible error (not harmless); reversed counts 1 & 2 and remanded for retrial or, if prosecution declines, entry of convictions for nonforcible offenses and resentencing

Key Cases Cited

People v. Johnson, 26 Cal.3d 557 (explains substantial-evidence review in criminal cases)
Jackson v. Virginia, 443 U.S. 307 (federal standard for sufficiency of evidence review)
People v. Espinoza, 95 Cal.App.4th 1287 (duress requires evidence participation was at least partly impelled by implied threat; contrasts restraint/physical domination)
People v. Soto, 51 Cal.4th 229 (duress is objective and not dependent on particular victim’s visible response)
People v. Thomas, 15 Cal.App.5th 1063 (totality of circumstances test for duress in child sexual-abuse cases)
People v. Breverman, 19 Cal.4th 142 (trial court must instruct on lesser included offense when substantial evidence supports it)
People v. Schulz, 2 Cal.App.4th 999 (duress may be shown by physical and psychological domination)
People v. Manibusan, 58 Cal.4th 40 (appellate courts accept reasonable inferences from circumstantial evidence)
People v. Watson, 46 Cal.2d 818 (standard for harmless-error review in California)