People v. Ramirez CA4/2, E074428

Background:

Victim (Doe) lived with maternal grandmother; during periods when grandmother traveled, defendant Oscar Villarreal Ramirez cared for Doe. Doe was 11 at the time of the primary reported incidents and testified abuse began around age 7.
Doe described multiple incidents in which Ramirez orally copulated her while she was asleep or in the bathroom, including acts where he removed her clothing, placed her on his neck, opened her mouth, grabbed her feet, pulled her arms away from others, and prevented her from closing her legs.
Ramirez denied the allegations; he argued at trial that Doe and her grandmother fabricated the charges. The jury convicted Ramirez on multiple counts, including five counts of aggravated sexual assault of a child under 14 by forcible oral copulation (Pen. Code § 269(a)(4)).
Procedural outcome: Ramirez was sentenced to a term including mandatory consecutive 15‑years‑to‑life sentences on the aggravated counts; he appealed solely on the ground the court failed to instruct the jury on a purported lesser included offense.
Appellate issue: Whether the trial court was required to instruct on non‑forcible oral copulation of a child (Pen. Code § 287(c)(1)) as a lesser included offense of aggravated forcible oral copulation, and if failure to do so was reversible error.
Court’s key factual/legal finding: Even assuming non‑forcible oral copulation is a lesser included offense, there was no substantial evidence supporting only the lesser offense because Doe’s testimony showed force sufficient to overcome her will; thus no instructional error and conviction affirmed.

Issues:

Issue	Plaintiff's Argument (People)	Defendant's Argument (Ramirez)	Held
Whether non‑forcible oral copulation (§287(c)(1)) is a lesser included offense of aggravated forcible oral copulation (§269(a)(4)) under the statutory‑elements test	It is not necessarily included under the statutory‑elements test because aggravated assault requires a smaller age gap and an element of force	It is a lesser included offense (relevant under accusatory pleading)	Court doubted statutory‑elements test; did not finally decide but assumed arguendo and proceeded on evidentiary grounds
Whether the accusatory pleading supports treating the non‑forcible offense as necessarily included (relying on earlier complaint DOB)	An amended information supersedes earlier complaints; may not rely on prior pleading or case title DOB	Relies on original complaint and defendant’s DOB in the case title to show >10‑year age gap	Court identified problems with relying on superseded pleadings and title DOB, but assumed arguendo in Ramirez’s favor and did not resolve the point
Whether the trial court erred by not instructing on the lesser offense and whether any error was prejudicial	No reversible error: Doe’s testimony showed force sufficient to overcome will, so no substantial evidence supporting only the lesser offense	Error because some incidents allegedly lacked force, so instruction on the lesser offense was required and its omission was prejudicial	No error: testimony showed forcible acts on each contested occasion; no substantial evidence of only non‑forcible conduct; conviction affirmed

Key Cases Cited

People v. Smith, 57 Cal.4th 232 (2013) (describes statutory‑elements and accusatory‑pleading tests and duty to instruct on lesser included offenses)
People v. Williams, 16 Cal.4th 153 (1997) (court must instruct on lesser included only if substantial evidence supports it)
People v. Baker, 20 Cal.App.5th 711 (2018) (defines the requisite force as use sufficient to overcome victim’s will)
People v. Tully, 54 Cal.4th 952 (2012) (arguments raised first in a reply brief are typically not entertained)
People v. Bryant, Smith and Wheeler, 60 Cal.4th 335 (2014) (issues unsupported by legal argument and authority may be treated as waived)
Garcia v. Superior Court of Los Angeles County, 47 Cal.App.5th 631 (2020) (an amended accusatory pleading supersedes the original)