People v. Raya-Pena CA5, F079564

Defendant Primitivo Raya-Pena, the victim’s godfather, was charged for multiple sexual offenses arising from three separate incidents; this appeal concerns two sexual-assault counts (Counts 6 & 7) from a bedroom incident.
Victim testified Raya-Pena unlocked a locked bedroom, exposed his penis and placed it about two inches from her face; she pushed him away and left; other witnesses said the victim did not appear afraid or scream.
Jury convicted Raya-Pena of two counts of sexual assault with intent to commit forcible oral copulation (Counts 6 & 7), distributing pornography to a minor (Count 9), and child molestation (Count 13); acquitted on several other counts; sentenced to seven years on Count 6 concurrent on others.
On appeal Raya-Pena argued (1) insufficient evidence supported the second sexual-assault conviction (Count 7), and (2) the trial court erred by not instructing the jury on attempted nonforcible oral copulation as a lesser included offense.
The People conceded insufficiency as to Count 7 and did not dispute the instructional error but argued any error was harmless.
Court ruled Count 7 must be vacated for insufficiency (double jeopardy bars retrial on that count), found prejudicial instructional error for Count 6 and reversed both sexual-assault convictions; on remand People may retry Count 6 or accept reduction to attempted nonforcible oral copulation; Counts 9 and 13 remain.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for second sexual-assault count (Count 7)	Evidence supports two separate assaults; prosecution charged two counts referring to bedroom entry	No rational juror could find two distinct sexual-assault acts occurred after entry	People conceded; court ordered acquittal on Count 7; retrial barred for insufficiency
Failure to instruct on attempted nonforcible oral copulation (lesser included)	Any instructional omission was harmless beyond a reasonable doubt	Trial court had sua sponte duty to instruct because evidence permitted finding attempted nonforcible offense rather than forcible assault	Court found error and that it was prejudicial; vacated convictions on Counts 6 & 7; on remand People may retry Count 6 or accept reduction to attempted nonforcible oral copulation

People v. Lindberg, 45 Cal.4th 1 (review standard for sufficiency of the evidence)
People v. Rodriguez, 4 Cal.5th 1123 (double jeopardy bars retrial when reversal is for insufficiency)
People v. Licas, 41 Cal.4th 362 (definition and test for lesser included offenses)
People v. Gonzalez, 5 Cal.5th 186 (harmless error and prejudice standard for failure to instruct)
People v. Eid, 59 Cal.4th 650 (duty to instruct on lesser included offenses)
People v. Woods, 241 Cal.App.4th 461 (viewing record in favor of accused when assessing instruction error)
People v. Vasquez, 30 Cal.App.5th 786 (resolve uncertainty about instruction in favor of accused)
People v. Saunders, 232 Cal.App.3d 1592 (attempted oral copulation is a necessarily included offense)
In re Long, 10 Cal.5th 764 (single juror harboring reasonable doubt can require reversal)