Opinion
B322745
10-24-2023
THE PEOPLE, Plaintiff and Respondent, v. ADAM OCHOA, Defendant and Appellant.
William Capriola, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance Winters, Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Scott Taryle and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. VA150212, Roger T. Ito, Judge.
William Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance Winters, Assistant Attorney General, Susan Pithey, Senior Assistant Attorney General, Scott Taryle and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
ADAMS, J.
A jury convicted defendant Adam Ochoa of six criminal offenses, including one count of making a criminal threat. On appeal, Ochoa contends the trial court erred in failing to instruct the jury on unanimity (CALCRIM No. 3500) because the evidence reflected multiple acts that could have supported the criminal threats conviction. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Ochoa and Tania Fuentes began dating in 2018. On March 10, 2019, Fuentes was four months pregnant with Ochoa's child. She had not spoken to Ochoa for two weeks because he had accused her of cheating. They exchanged text messages on March 10, but by the evening Fuentes had told Ochoa she was not going to contact him anymore and she destroyed her cell phone. Around 10:35 p.m., when Fuentes was in the shower, Ochoa knocked on the bathroom window and asked her to open the door. Despite her earlier resolve, Fuentes was happy to see Ochoa and let him in, then returned to the shower while he waited in her bedroom.
Fuentes lived with her aunt and minor cousins in the back house on a lot with two homes. The aunt and cousins were home when Ochoa arrived, but they were in a bedroom approximately 10 feet from Fuentes's bedroom, separated by a hallway and another room. Fuentes did not believe the aunt and cousins saw Ochoa enter the house.
After she finished showering, Fuentes returned to her bedroom wearing only a towel. Ochoa asked several times," '[A]re you cheating on me?'" Fuentes repeatedly denied any infidelity. Ochoa then instructed Fuentes to text her ex- boyfriend, Salvador Sanchez, using Ochoa's phone. Sanchez was not permitted to contact Fuentes because of a restraining order, and Fuentes did not want to text him. However, at Ochoa's insistence, Fuentes sent Sanchez messages that Ochoa dictated to her, including the message:" 'I miss your dick.'" When Sanchez responded and asked if he could see Fuentes that night, Ochoa took the phone away. Fuentes was shivering because she was still wearing only a towel. Ochoa told Fuentes to cover herself, which she did, using a bedsheet.
Ochoa pulled out a gun and pressed it hard against Fuentes's chin. She was scared and asked Ochoa to put the gun away. He put it in the back of his jeans. Ochoa then took out an eight-inch knife, held Fuentes against the bed, and slowly stabbed her in the arm, cutting her and causing her to bleed. Fuentes felt pain and started to cry. Ochoa told Fuentes to "shut up" so that her aunt and cousins would not hear anything. He told Fuentes that if they came into her bedroom, he would shoot them. This made Fuentes more afraid, but she covered her mouth to avoid making noise.
Ochoa then punched Fuentes approximately 10 times on the left side of her face. Fuentes felt her eyes swelling. Despite the pain, she cried but did not scream. She feared Ochoa would shoot and kill her if she called out for her aunt. Ochoa stood silently in front of Fuentes's bed for 30 to 45 minutes, tapped his temple, and showed no emotion, while Fuentes sat on the bed. Ochoa then asked Fuentes if she had the keys to the front house. He told Fuentes he wanted to go there and shoot her in the kneecap because she needed to "feel [the] pain for the cheating [she] had done." He instructed her to "choose a knee." Fuentes told Ochoa she did not have the keys for the front house and said, "No, I'm not choosing the knee. Please don't do this."
After 20 or 30 more minutes of silence, Ochoa told Fuentes to get dressed. He said they were leaving the house, and he instructed Fuentes to hold his hand so that her aunt would not be concerned if she saw them leaving. Fuentes agreed, fearful for her family's safety and convinced that she had no choice. They left the house through a door in Fuentes's bedroom that led directly outside, without passing the aunt's bedroom. As Fuentes was opening the door, she felt and saw that Ochoa was pressing the gun to her lower back.
Fuentes and Ochoa held hands, walked to Fuentes's car, and began to drive away. Fuentes drove. When they reached the property's locked gate, Ochoa pointed the gun at Fuentes, told her to open the gate, and said, "don't try to do something stupid." She opened the gate because she felt she "had no choice. [¶] . . . [¶] because he's pointing this gun at me," and then returned to the driver's seat.
At some point before they left, Fuentes realized she had forgotten her glasses. She went back into the house alone to retrieve them, then returned to the car. On cross-examination, Fuentes testified that when she went back into the house she did not speak to her aunt or attempt to call 911.
Ochoa told Fuentes where to go and they drove in silence for five to 15 minutes. When they had reached a dark and empty residential street, Ochoa told Fuentes to pull over and park. It was past midnight. Ochoa told Fuentes to turn the car off. They sat in silence for about 30 minutes. Fuentes was afraid. Finally, she asked what they were doing. Ochoa said they needed to wait for the car windows to fog up so that no one would be able to see inside when he shot her.
Ochoa again demanded that Fuentes choose a kneecap for him to shoot. He also told Fuentes she needed to make up a lie involving Sanchez shooting her to explain her injuries, and that the lie had to be "believable." He said he would "go after" her family if she told anyone the truth. Fuentes pleaded with Ochoa not to shoot her, reminding him that she was pregnant and could bleed to death. Ochoa responded," '[Y]ou should have thought about it before cheating.'" Ochoa began "feeling" and "grabbing" Fuentes's right knee. Fuentes again begged Ochoa, "[D]on't shoot. Please don't shoot. I'm going to bleed and I'm pregnant." She began to cry.
Ochoa shot Fuentes in the right knee. It sounded "like an explosion." Fuentes screamed and cried. Ochoa told her to" 'shut the fuck up,'" and explained he shot her in the knee so that she would "feel the pain." Fuentes was in pain and bleeding. She feared Ochoa would kill her if she made any noise. She was not able to stop crying, but after five minutes she was able to stop making sounds. Ochoa looked for the bullet casing in the car, then left. Fuentes managed to drive herself to the hospital. She was admitted at 2:27 a.m.
Initially, Fuentes told hospital personnel she was injured when someone tried to rob her while she was on the way to Sanchez's house. Fuentes was afraid for her family because of what Ochoa had told her in the car. Ochoa knew Fuentes's children, her father, her aunt, and her cousins, and she was "in fear for all of those persons' safety." Eventually, however, Fuentes told law enforcement officers that she was worried about her family's safety, and they assured her they would protect her family. She then told them that Ochoa had caused her injuries.
At some point after testifying at the preliminary hearing, but before trial, Fuentes applied for a special immigration visa, known as a U visa. The U visa is available to victims of violent crime who cooperate with the government in the prosecution of their assailants. If granted, the U visa would allow Fuentes to become a permanent resident of the United States. Fuentes understood that the U visa process required her to "complete [her] cooperation with the prosecutor in the prosecution of [Ochoa]."
The jury found Ochoa guilty on all counts: aggravated mayhem (Pen. Code, § 205); kidnapping (§ 207, subd. (a)); assault with a semiautomatic firearm (§ 245, subd. (b)); criminal threats (§ 422, subd. (a)); inflicting corporal injury on a spouse, cohabitant, fiance, boyfriend, girlfriend, or child's parent (§ 273.5, subd. (a)); and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true all alleged firearm and great bodily injury enhancements (§§ 1203.06, subd. (a)(1); 12022.5, subd. (b); 12022.53, subd. (c),(d); 12022.7, subd. (e)). The jury further found true all alleged aggravating factors, including that the crimes involved great violence, great bodily harm or threat of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, and callousness; the victim was particularly vulnerable; and Ochoa carried out the crimes in a manner indicating planning, sophistication, and professionalism. (Cal. Rules of Court, rule 4.421(a)(1),(3),(8).) The trial court sentenced Ochoa to state prison for an aggregate determinate term of 21 years 8 months, which included 8 months for the criminal threats count, and a consecutive indeterminate term of life plus 25 years to life. Ochoa timely appealed.
All undesignated statutory references are to the Penal Code.
DISCUSSION
Ochoa argues the trial court committed reversible error by failing to instruct the jurors that they had to unanimously agree on which act he committed as the basis for the criminal threats conviction. We find no prejudicial error and affirm.
I. Applicable Legal Principles
"As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no unanimity instruction is required if the case falls within the continuous-course-of-conduct exception, which arises 'when the acts are so closely connected in time as to form part of one transaction' [citation], or 'when . . . the statute contemplates a continuous course of conduct or a series of acts over a period of time[.]' [Citation.] There also is no need for a unanimity instruction if the defendant offers the same defense or defenses to the various acts constituting the charged crime." (People v. Jennings (2010) 50 Cal.4th 616, 679 (Jennings).)
" 'The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.] [¶] Thus, in cases in which the evidence indicates the jurors might disagree as to the particular act that the defendant committed, the court should deliver the standard unanimity instruction.' [Citation.]" (People v. Percelle (2005) 126 Cal.App.4th 164, 181 (Percelle).) However, "the failure to instruct is not error 'unless there is evidence based on which reasonable jurors could disagree as to which act the defendant committed.' [Citation.] It is immaterial that the two acts might have been charged as two separate [violations of the crime charged]. If there was no evidence from which the jury could have found defendant was guilty of one . . . and not the other, the instruction is not required." (Id. at pp. 181-182.)
"[W]hether the trial court should have given a particular jury instruction involves a mixed question of law and fact which is' "predominantly legal," '" and therefore "we review de novo whether the specific instruction was required." (People v. Sorden (2021) 65 Cal.App.5th 582, 616.)
II. The Lack of a Sua Sponte Unanimity Instruction Was Not Reversible Error
A person violates section 422, subdivision (a), by "willfully threat[ening] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat . . . which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."
Ochoa contends a unanimity instruction was required because there was evidence of two different acts the jury could have relied upon to find him guilty of making a criminal threat. Ochoa references evidence that at Fuentes's home, he told Fuentes that he would shoot her aunt and cousins if they came into her bedroom, as well as evidence that while they sat in Fuentes's car two or three hours later, Ochoa said that if she told anyone he had shot her, he would "go after" her family. The prosecutor did not elect one of these statements as the basis for the criminal threats charge and, in her closing argument, she referred to more than one threatening statement.
We conclude, however, that the trial court did not err in failing to sua sponte provide a unanimity instruction because"' "there was no evidence from which the jury could have found defendant was guilty of" the crime based on one act but not the other,'" and Ochoa" 'offered the same defense to both acts constituting the charged crime, so no juror could have believed defendant committed one act but disbelieved that he committed the other.'" (People v. Covarrubias (2016) 1 Cal.5th 838, 879 (Covarrubias).)
The continuous course of conduct exception has been described in various ways, including as applying "when the acts . . . are so closely connected as to form part of one continuing transaction or course of criminal conduct" (Percelle, supra, 126 Cal.App.4th at p. 181), as well as" 'when the acts are so closely connected in time as to form part of one transaction'" (Jennings, supra, 50 Cal.4th at p. 679, italics added). We note that in arguing the continuous course of conduct exception did not apply here, Ochoa elides the fact that in the hours between the two threats to Fuentes's family, he engaged in an unbroken stream of violent and menacing conduct against Fuentes that assisted in conveying the "immediate prospect" of executing his threats. (§ 422, subd. (a).) This arguably renders the continuous course of conduct exception applicable, despite the temporal gap between the two statements. (See e.g., People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14.) However, in light of our analysis below, we need not discuss the exception's variations at length. "If there was no evidence from which the jury could have found [Ochoa] guilty of one [threat] and not the other, the instruction is not required." (Percelle, supra,126 Cal.App.4th at p. 182, citing People v. Riel (2000) 22 Cal.4th 1153, 1199.)
In Covarrubias, supra, 1 Cal.5th 838, for example, the defendant was charged with robbery based on evidence of four separate takings, and the court did not give a unanimity instruction. (Id. at p. 877.) The defendant's main defense was that another witness "testified untruthfully about defendant's involvement in the crimes." (Id. at p. 880.) "If the jury believed defendant," our Supreme Court explained, "it would have found him not guilty," yet he was convicted. (Ibid.) In light of the defendant's uniform credibility defense, the court reasoned that it was" 'inconceivable that a juror would believe [the witness's] testimony'" as to one of the takings but" 'somehow find'" the witness "was untruthful in relating defendant's involvement" in the others. (Ibid.) The court therefore concluded no unanimity instruction was required. (Ibid.)
Likewise, here, Ochoa's only defense to the criminal threats charge was to challenge Fuentes's credibility. The only evidence Ochoa offered at trial was that Fuentes had applied for a U visa, from which the jury could infer that Fuentes had a motive to lie. Defense counsel also attacked Fuentes's credibility in closing argument, suggesting, for example, that if Fuentes's account were true, her aunt would have heard Ochoa yelling at Fuentes and accusing her of cheating, and stressing that Fuentes initially said strangers had attacked and shot her. On appeal, Ochoa contends his counsel's closing argument reflected "different defenses as to the alleged threats in the bedroom and those in the car." Not so. Counsel's argument merely responded to the specific facts from Fuentes's testimony, in service of a single defense: challenging Fuentes's credibility.
Fuentes's testimony established that Ochoa stabbed her with a knife, then threatened to harm her family if she alerted them by making too much noise, and that Ochoa shot her in the knee, then threatened to harm her family if she told anyone he was the one who shot her. According to Fuentes, she complied both times out of fear. The jury's verdict indicates it rejected Ochoa's argument that Fuentes was not credible. As in Covarrubias, in light of Ochoa's uniform credibility defense," 'no juror could have believed defendant committed one act but disbelieved that he committed the other ....' [Citation.]" (Covarrubias, supra, 1 Cal.5th at p. 879.) No unanimity instruction was required.
Moreover, even if the jury should have been instructed on unanimity in this case, the record establishes that any error was not prejudicial. Numerous courts have concluded the failure to give a unanimity instruction may be harmless "if the record indicated the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed." (People v. Jones (1990) 51 Cal.3d 294, 307 [collecting cases].)
As explained above, Ochoa's only defense was that Fuentes was not a credible witness. "This is not a case in which different witnesses testified as to one incident but not the other or where different items of real evidence were introduced to prove one act but not the other, so that the jury might have distinguished between the credibility of different witnesses or the weight to be given various items of real evidence." (People v. Deletto (1983) 147 Cal.App.3d 458, 466.) The jury found Ochoa guilty of all charges and found true all allegations, demonstrating the jurors believed Fuentes's testimony in its entirety. The nature of the evidence and verdict "compels the conclusion that 'the jury's verdict implies that it did not believe the only defense offered.' [Citation.]" (Id. at p. 468.) Thus, even if the trial court erred in failing to instruct the jury on unanimity, we would find any error harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
Although California courts of appeal have been split on the appropriate standard for assessing whether error in failing to instruct on unanimity is prejudicial, (compare People v. Hernandez (2013) 217 Cal.App.4th 559, 576-577 [applying Chapman standard] with People v. Vargas (2001) 91 Cal.App.4th 506, 562 [applying "reasonably probable" standard under People v. Watson (1956) 46 Cal.2d 818]), the United States Supreme Court more recently observed that "the Sixth Amendment's unanimity requirement applies to state and federal criminal trials equally." (Ramos v. Louisiana (2020) U.S. [140 S.Ct. 1390, 1397, 206 L.Ed.2d 583].) We therefore apply the Chapman standard here.
DISPOSITION
The judgment of the trial court is affirmed.
We concur: EDMON, P. J., LAVIN, J.