People v. Paniague CA1/4
A164263
| Cal. Ct. App. | Apr 11, 2022Background
- Defendant Ramon Pena Paniague lived with his wife Rosario and her children; Estrella (age 19) was Rosario’s daughter and slept in a front bedroom.
- In the early morning hours of November 11, 2017, Estrella awoke to a person on top of her; she later identified the intruder as Paniague, found her clothes pulled down, and reported he had put his mouth on her breasts and kissed her vagina while she was asleep.
- Police arrested Paniague; DNA testing produced mixed and partial profiles and a penile swab from Paniague not consistent with Estrella or another male (Antonio). Paniague initially minimized conduct but ultimately admitted kissing Estrella’s breasts and vagina and said he thought she was Rosario.
- At trial the jury convicted Paniague of oral copulation of an unconscious person (Pen. Code § 287(f)) and of misdemeanor sexual battery, acquitting him of sexual battery by restraint.
- Paniague argued on appeal the trial court erred by (1) refusing a mistake-of-fact instruction as to Count 1, (2) refusing a good-character instruction (CALCRIM 350), and (3) failing sua sponte to instruct on attempted oral copulation as a lesser included offense.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Paniague) | Held |
|---|---|---|---|
| Whether the court erred by not giving a mistake-of-fact instruction on Count 1 | Instruction was withdrawn by defense at the charge conference and, in any event, no sua sponte duty existed because evidence was insubstantial | Defense requested CALCRIM 3406 and claimed he mistakenly thought the victim was his wife Rosario, negating knowledge the victim was unconscious | Forfeited by withdrawal; alternatively, no sua sponte duty because substantial-evidence support for the defense was lacking; no reversal |
| Whether the court erred by refusing a good-character instruction (CALCRIM 350) | Testimony showed only witnesses’ observations of specific non‑molestation acts, not opinion or reputation evidence admissible under Evid. Code § 1102 | Testimony that no prior inappropriate conduct occurred supported a character instruction that he wouldn’t molest family members | Instruction properly refused: offered testimony was specific-act evidence (not opinion/reputation), so it did not support CALCRIM 350 under McAlpin and Evidence Code § 1101/1102 |
| Whether the trial court had a sua sponte duty to instruct on attempted oral copulation as a lesser included offense | Attempt is not a lesser included offense of the completed § 287(f) offense because attempt requires a specific intent element; thus no sua sponte duty | Attempted oral copulation should have been given as a lesser included offense | No sua sponte duty: attempt requires additional specific intent (goal‑oriented intent) and is not a lesser included offense of the completed general‑intent crime; no error |
Key Cases Cited
- People v. Bolin, 18 Cal.4th 297 (Cal. 1998) (withdrawing or failing to object to instructions forfeits appellate review)
- People v. Braslaw, 233 Cal.App.4th 1239 (Cal. Ct. App. 2015) (attempt is not a lesser included offense when it requires a specific intent element beyond the completed crime)
- People v. McAlpin, 53 Cal.3d 1289 (Cal. 1991) (lay opinion or reputation evidence of non‑deviant sexual character is admissible when based on long‑term personal observation)
- People v. Salas, 37 Cal.4th 967 (Cal. 2006) (trial court must give a sua sponte instruction only if substantial evidence supports it)
- People v. Dancy, 102 Cal.App.4th 21 (Cal. Ct. App. 2002) (belief in prior or advance consent does not necessarily negate the wrongfulness of intercourse with an unconscious person)
- People v. Molano, 7 Cal.5th 620 (Cal. 2019) (oral copulation of an unconscious person is a general intent crime)
- People v. Wiidanen, 201 Cal.App.4th 526 (Cal. Ct. App. 2011) (describing elements of oral copulation with an unconscious person)