People v. Ochoa, S009522

• Decision Date: 05 November 1998
• Docket Number: No. S009522,S009522
• Court: California Supreme Court
• Parties: , 966 P.2d 442, 98 Cal. Daily Op. Serv. 8228, 98 Daily Journal D.A.R. 11,407 The PEOPLE, Plaintiff and Respondent, v. Lester Robert OCHOA, Defendant and Appellant

Page 408

79 Cal.Rptr.2d 408

19 Cal.4th 353, 966 P.2d 442, 98 Cal. Daily Op. Serv. 8228,

98 Daily Journal D.A.R. 11,407

The PEOPLE, Plaintiff and Respondent, v. Lester Robert OCHOA, Defendant and Appellant.

No. S009522.

Supreme Court of California

Nov. 5, 1998.

As Modified on Denial of Rehearing Jan. 27, 1999.

Page 423

Russell S. Babcock, San Diego, and Nancy J. King, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant

Page 424

Attorney General, Marc E. Turchin, Susan D. Martynec, Susan Lee Frierson, Robert S. Henry, Carol A. Greenwald and Arthur H. Auerbach, Deputy Attorneys General, for Plaintiff and Respondent.

MOSK, Justice.

Defendant was convicted of murdering Lacy Corrin Chandler and awaits execution of a resulting death sentence.

Following the consolidation of two cases against him, an information filed by the Los Angeles County District Attorney on April 25, 1988, charged defendant with murdering Chandler. And it alleged two felony-murder special circumstances in connection with her murder: that she was murdered during the commission of a forcible rape and a kidnapping. It also alleged that he personally used a knife to kill her. It alleged that these events took place on or about June 18, 1987.

In separate counts, the information charged defendant with forcibly raping and kidnapping Chandler. And in further counts, it charged him with the kidnapping for robbery, simple kidnapping, robbery, forcible rape, forcible rape in concert, forcible oral copulation, forcible oral copulation in concert, rape by means of a foreign object (namely fingers), attempted forcible sodomy, and attempted forcible sodomy in concert, of Charlotte J. It alleged that these events occurred on or about January 28, 1987.

The information also charged defendant with attempting to murder Yolanda A., and alleged that he personally used a knife and personally inflicted great bodily injury during that crime. It also charged him with assault with a deadly weapon and causing great bodily injury, assault with intent to rape, and residential burglary in the attack on Yolanda A. It alleged that these events took place on or about May 23, 1987.

The jury found defendant not guilty of attempting to murder Yolanda A. It also found not true the allegations that he personally inflicted great bodily injury on her. Instead it found him guilty of assaulting Yolanda A. with a deadly weapon or by means of force likely to cause great bodily injury. It found him guilty of all other offenses charged, and found true all other allegations. The foreperson wrote on the verdict form "[b]urglary of the first degree" regarding the residence of Yolanda A. After a penalty trial the jury returned a verdict of death, and the trial court refused to modify it. We affirm the resulting judgment.

THE GUILT PHASE

Facts

Defendant was charged with involvement in three criminal incidents, culminating in Chandler's murder. We describe them in chronological order.

The Victimization of Charlotte J.

Charlotte J. testified that she was returning to her apartment shortly before midnight on January 28, 1987, when defendant grabbed her from behind, knocking her glasses off. He told her to hand him her purse, which she did. Rather than release her, he forcibly took her behind a garbage dumpster, handed her purse back to her and told her to give him money. Again she complied. At that point Edward Ramage joined them.

Defendant tried to keep Charlotte J. from seeing him, and she is nearsighted, but at one point during her abduction the headlights of a passing car enabled her, or helped enable her in conjunction with other lighting, to observe his left profile from less than a foot away. At the time they were kneeling to avoid being seen. She never saw his face. Throughout the incident he would push her head down when she looked in his direction.

Defendant and Ramage took her over a wall, past the rear of a liquor store and down a street. Finally they climbed one perimeter fence and passed through another, entering the grounds of the Florence Flanner School a few blocks away. On the school ground he forced her to remove her clothes and to get down on hands and knees, and she was blindfolded. Defendant had her orally copulate him while Ramage engaged in vaginal intercourse. Then the two assailants switched positions. At some point defendant took her wedding ring. Defendant also attempted to engage in anal intercourse but was unable to

Page 425

penetrate the victim, despite inserting his fingers in her rectum and trying again. Ramage also tried but could not engage in anal intercourse (although he would later testify that he did do so). Charlotte J. testified[966 P.2d 459] that defendant appeared to be in charge, and she noticed that Ramage was shaking when he would touch her. She heard Ramage ask defendant not to hurt her, and they allowed her to re-dress. She asked defendant for her wedding ring back, but he did not respond. The incident ended after about three hours, when they released her.

Defendant cross-examined Charlotte J. about the accuracy of her identification of him. He elicited from her that she is five feet five and one-half inches tall and had previously believed that she, defendant and Ramage were all the same height. She told a responding police officer that she could envision defendant's appearance but not describe him verbally. He elicited other failures of memory regarding details of the crimes against her. The responding police officer testified that she told him she did not see her attackers.

On redirect examination, Charlotte J. explained that she never saw defendant standing so as to be able to give an accurate description of his height.

An emergency room doctor testified that Charlotte J. showed physical evidence of oral copulation in the form of bruising of the hard palate, and of attempted sodomy in the form of trauma above the rectum.

Ramage testified that he and defendant raped Charlotte J. on the date in question. Ramage had seen but did not know defendant before the day of the rape, when they met on the street. Defendant asked Ramage to obtain cocaine for him; he obtained a quarter of a gram and the two consumed it. They parted ways, but a few minutes later Ramage encountered defendant detaining Charlotte J. between two trash bins. He was rummaging through her purse and telling her that he would harm her if she screamed. He also took her wedding ring. Ramage wanted to leave but defendant told him not to and lifted up his shirt, revealing a small gun.

After they raped Charlotte J., defendant called Ramage to one side and said " 'I can't take no chances[;] I'm going to have to kill her.' " Ramage insisted that he not. Instead Ramage gave her his sweater to shield her from the cold and told defendant that he did not want any part in a murder and that defendant would have to kill him too. Defendant took out "a knife from his sock and he starts switching it back and forth and I just said, 'Come on,' you know, kept pleading with her [sic], just let her go." (In her own testimony, Charlotte J. described hearing a clicking sound a few times as she heard Ramage asking defendant not to harm her.) Defendant relented and Ramage told Charlotte J. to run as soon as she got over the fence.

Ramage admitted that he would converse and smoke marijuana with defendant on occasions after the incident. And on cross-examination, defendant tried to undermine Ramage's account of events. He asked why Ramage had not fled when he had opportunities to do so during the rape, and why he did not search for the gun while defendant was committing sexual crimes against the victim. Ramage replied that because he felt panicked, he was already implicated in a rape, and it benefitted Charlotte J. for him to stay (he had testified that he feared defendant would kill both of them if he made a false step), he felt he could not leave. Defendant also elicited prior inconsistent statements by Ramage, a discrepancy in statements regarding his whereabouts on the night of the murder of Lacy Chandler, and other discrepancies in the accounts given by him and others at trial. On redirect examination, Ramage explained that he was assuming that the murder occurred on a particular night when questioned by the police and he gave them his whereabouts on the basis of his assumption.

Detective John Aquino, then an officer of the Baldwin Park Police Department, testified that when he arrested Ramage for the crimes against Charlotte J. he blurted out, "Lester [defendant] made me do it. I didn't want to do anything." Ramage gave a confession that conformed to his in-court testimony. The confession was not coerced;

Page 426

rather, Ramage was eager to tell the story from the time of his arrest. Aquino also testified to the lineup procedure (described further post, 79 Cal.Rptr.2d at pp. 443-444, 966 P.2d at pp. 477-478): he showed Charlotte[966 P.2d 460] J. two 6-photograph lineups, one containing defendant and the other Ramage. She identified Ramage with 80 percent certainty. She identified defendant [19 Cal.4th 384] from the other six-photograph lineup, but apparently was not positive until Aquino produced, at her request, a photograph of defendant's profile.

Defendant called an experimental psychologist, Dr. Kathy Pezdek, to testify about the possible effects of the traumatic events on Charlotte J.'s memory as an eyewitness. She opined that Charlotte J.'s ability to identify defendant may have been diminished by the fact that she was missing her glasses, that she saw only his profile and only for a short time, that she and defendant belong to different ethnic groups, that the situation was stressful, that she did not see a photograph of him until months after the assault, and that in-court identifications contain a risk of suggestiveness. She...