P. v. Ochoa 9/2/04 CA4/1

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: D042215

Case Date: 09/02/2004

Preview:Filed 9/2/04

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, v. FLAVIO ALCANTARA OCHOA, Defendant and Appellant. APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes, Judge. Affirmed as modified. (Super. Ct. No. SCD167401) D042215

Doris S. Browning, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Arlene Aquintey Sevidal, Deputy Attorney General, for Plaintiff and Respondent. Flavio Alcantara Ochoa appeals his convictions of kidnapping for rape, forcible rape, rape by foreign object using force, sodomy using force, assault with intent to commit rape, assault by means likely to produce great bodily injury and making a criminal threat (counts 1

through 7, respectively), for which he was sentenced to an indeterminate term of life in prison with the possibility of parole on count 1, plus three years, consecutive, on count 6, with sentence on the remaining counts being stayed. He contends that (1) the trial court violated his constitutional right of compulsory process by giving a coercive advisement about the right to remain silent to his victim, who then recanted her statements against him prior to trial; (2) in accordance with Crawford v. Washington (2004) ___ U.S. ___ [124 S.Ct. 1354] (Crawford), the trial court violated his constitutional right of confrontation by improperly admitting the victim's statements to law enforcement officers pursuant to Evidence Code section 1370; (3) the prosecutor committed misconduct in arguing to the jury facts and circumstances that had been ruled inadmissible; (4) the trial court violated his constitutional right to a jury trial, as recently described in Blakely v. Washington (2004) ___ U.S. ___ [124 S.Ct. 2531] (Blakely), by imposing a consecutive sentence on count 6 based on certain factual findings made by it; and (5) the abstract of judgment misidentifies the assault charges of which he was convicted (counts 5 and 6). The Attorney General concedes Ochoa's final contention of error and we modify the judgment to accurately reflect the offenses of which he was convicted in counts 5 and 6. We affirm the judgment as so modified. FACTUAL AND PROCEDURAL BACKGROUND On May 10, 2002, Ochoa got into an argument with his girlfriend, Maria M., as she was leaving a dance. (All relevant dates are in 2002 except as otherwise noted.) Ochoa slapped Maria M. in the face and Maria M. hit him back. Later in the evening, Maria M. knocked on the door of Angel Mendiola's home; she was frightened and crying and appeared 2

to be drunk. Maria M. told Mendiola that she had just been raped in the nearby park and that her assailant was approaching; she asked for his help. Ochoa, who also appeared to be drunk, came up behind Maria M., telling her not to involve other people in their dispute and suggesting that she spend the night with him. Ochoa accused Maria M. of lying, saying "Why would I rape you? You just spent the night with me last night." Mendiola decided not to call the police because he thought Ochoa and Maria M. were merely having a couple's quarrel and he did not want to get involved. With Ochoa still following her, Maria M. left Mendiola's home and went to the nearby home of Virginia Rebolledo and her husband. Maria M. told Rebolledo's husband that she had been raped in the park and asked him to call the police. The Rebolledos' neighbor, Jesus Alvarez, saw Ochoa following Maria M., telling her to calm down and arguing with her. Perceiving that Ochoa would use force to get Maria M. to leave with him, Alvarez intervened and told Ochoa to leave Maria M. alone. Ochoa then apparently backed off and Maria M. left with Alvarez. The following afternoon Maria M. told her mother than Ochoa had raped her and her mother called the police. Maria M. told San Diego Police Officers Christopher Padilla and Derek Miller that Ochoa had pulled her into a men's restroom at a local park, hit her, kicked her and sexually assaulted her with his fingers and his penis and that he had threatened to beat her up if she reported the attack. An officer took Maria M. to the hospital, where sexual assault nurse examiner Donna Redondo examined her. Redondo found recent bruises on Maria M.'s face, arms, knees, thighs and back, multiple lacerations to Maria M.'s external genital area and a bruise in Maria M.'s anal canal. 3

On May 14, Maria M. told Detective Francisco Rivera that Ochoa had also sodomized her during the incident, but that she had not reported this earlier because she was too embarrassed. The next day, Maria M. told district attorney investigator Lyndee Villalpando through a translator that Ochoa got upset with her at the dance and began to rough her up. Maria M. indicated that Ochoa dragged her to the park and into the men's restroom, where he sodomized and raped her, and that he continued to beat her, causing her to black out momentarily. Maria M. also said Ochoa threatened to harm her and her children if she went to the police and that in any event the police would not believe her because she was an undocumented alien. The district attorney charged Ochoa with kidnapping for rape, forcible rape, rape by foreign object using force, sodomy using force, assault with intent to commit rape, assault by means likely to produce great bodily injury and making a criminal threat. Several weeks later, Ochoa pleaded guilty to all of the counts against him except the kidnapping for rape charge, which the district attorney agreed to dismiss. However, in June, Maria M. told court officer Susan Gonzales that she had lied about the rape incident, that the sexual encounter in the park bathroom was consensual and that at that time Ochoa had hit her, but nothing more. Maria M. gave a similar statement to Ochoa's counsel and, in August, the court granted Ochoa's motion to withdraw his plea based on Maria M.'s declaration that the encounter was consensual and that she had lied to police after becoming angry at him. The court reinstated the charges against Ochoa and the case proceeded to trial in January 2003. At trial, the prosecutor called Maria M. as a witness; she testified that when she met Ochoa at the dance, they began to argue, she pushed him, he hit her in the face and she fell 4

down as she hit him back. Maria M. denied that Ochoa kicked her while she was down, but admitted that this testimony was contrary to what police reports indicated she had told the officers and to her previous testimony. At this point in Maria M.'s testimony, the court called a recess and informed counsel it was concerned about the need to advise Maria M. about her Fifth Amendment rights in light of her testimony suggesting that she may have filed a false complaint with the police or committed perjury at the preliminary hearing. When Maria M. returned to the courtroom, the court advised her as follows: " . . . Whenever it appears to the Court that a witness is in a position where they might be asked about something, the answer to which could possibly incriminate the witness, then I have to advise the witness that the witness has a right -- and this applies to you -- not to answer any question that might incriminate you. . . . And you may say that you don't want to answer a question if you think it might involve you in any kind of a crime. "There are crimes known as perjury, which is giving false testimony, as well as another crime of giving false reports to police officers. I don't know whether you are involved in any such things, but just in case, I have to advise you. "Your right not to testify to something that could incriminate you is known as the Fifth Amendment right. Because if you do answer a question that incriminates you, that answer can be potentially used against you in court in another case against you. . . . . "Now, if you believe that you have a Fifth Amendment right not to testify, you can claim that right, or you can give up the right and testify anyway. And if you want to consult with an attorney before you make up your mind, then you can do that, and you can hire your own attorney to talk to. Or if you cannot afford an attorney, I can appoint an attorney to represent you." Upon inquiry from the court, Maria M. indicated that she understood the advisement and that she did not want "to answer on whatever could have an effect on me." The

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prosecutor indicated that his office would not grant immunity to Maria M. and that he intended to introduce evidence of Maria M.'s testimony at the preliminary hearing and her statements to police officers and others shortly after the incident in support of his case against Ochoa. Responding to defense counsel's concerns that Maria M.'s assertion of her Fifth Amendment right had been equivocal, the court again called Maria M. into the courtroom and confirmed that Maria M. had understood its advisements. The court again informed Maria M. that giving a false report to a police officer and testifying falsely in a courtroom under oath were crimes and that "anyone who's called to the witness stand has a right not to testify to anything that might incriminate them in that kind of criminal activity." It indicated that both counsel would want to inquire into those areas and "[i]f you think that you might incriminate yourself by answers to those types of questions, then you have a right not to testify." After being so advised, Maria M. informed the court that she did not wish to testify. The court declared Maria M. unavailable as a witness and ruled that it would allow the prosecution to introduce certain of her preliminary hearing testimony at trial. The prosecution introduced Maria M.'s preliminary hearing testimony as follows: Maria M. got into an argument with Ochoa at a party because he accused her of being with other men and insisted that he was going to return to his wife and children in Mexico. During the argument, Ochoa slapped Maria M. in the face, causing her to fall down. After Ochoa helped Maria M. up, they calmed down and Ochoa went into the men's bathroom at the park across the street to relieve himself; Maria M. initially waited for Ochoa outside the bathroom, but went inside after a short time because she was fearful of staying outside by 6

herself. After Ochoa finished using the bathroom, he hugged Maria M. and they began kissing. Ultimately they had consensual sexual intercourse, but Ochoa did not sodomize Maria M. in any way. After they had finished, Ochoa infuriated Maria M. by telling her that he would be going back to Mexico to be with his family. Maria M. admitted that her statements to police that Ochoa had beat her up, forced her into the bathroom, raped her and thereafter threatened her were false. Maria M. explained that she made the false accusations to get back at Ochoa because she felt that he had used her. Maria M. gave conflicting testimony on whether she told any of the officers that Ochoa had sodomized her or put his finger in her vagina. She also testified that she decided to tell the officers the truth after Ochoa called her from jail and apologized for hitting her and for having sex with her in the public restroom. She thereafter talked to Villalpando and recanted her prior statements. The prosecutor also introduced evidence of Maria M.'s statements to Mendiola and Alvarez, as well as her statements to the officers and Villalpando. In his defense, Ochoa presented Rebolledo's testimony that at the time Maria M. came to the door and complained about being raped in the park, Maria M. was crying but did not appear to be drunk. Rebolledo also testified that while Maria M. was talking to her husband, Alvarez approached Maria M. and shortly thereafter the two left together. Ochoa also called an expert to testify that the photos of Maria M.'s physical injuries did not permit a determination of when or how the injuries occurred. Finally, he presented the testimony of Gonzales that on June 21, Maria M. recanted her allegations against him and claimed that she had previously lied to the police because she wanted revenge.

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A jury convicted Ochoa of all counts and the court sentenced him to life with the possibility of parole on the kidnapping for rape count (count 1), plus a mid-term of three years, consecutive, on the count for assault by means likely to produce great bodily injury (count 6). DISCUSSION 1. Fifth Amendment Right Advisement to Maria M. The state and federal constitutions guarantee a criminal defendant the right to confront and cross-examine the witnesses against him. (U.S. Const., VI Amend.; Cal. Const., art. I,

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