People v. Oquita

• Decision Date: 13 March 2018
• Docket Number: F073234
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. JAVIER ROMERO OQUITA, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. JAVIER ROMERO OQUITA, Defendant and Appellant.

F073234

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

March 13, 2018

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. VCF322060)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. H. N. Papadakis, Judge. (Retired Judge of the Fresno Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez, Gregory B. Wagner and Sarah J. Jacobs, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

During a road trip to visit relatives, defendant Javier Romero Oquita rented a motel room, where he watched a pornographic movie and moved his nephew's hand and head toward his exposed penis. He was subsequently convicted of two counts of committing a forcible lewd act against a child under the age of 14 years (Pen. Code, § 288, subd. (b)(1))¹ (counts 1 & 2) and one count of sending or exhibiting harmful matter to a minor (§ 288.2, subd. (a)) (count 3). Defendant was sentenced to a total determinate term of 10 years in state prison as follows: the middle term of two years on count 3, a consecutive middle term of eight years on count 1 and, concurrent with the term on count 1, the middle term of eight years on count 2.

On appeal, defendant claims the trial court erred in failing to instruct the jury sua sponte on the lesser included offense of attempted forcible lewd conduct (§§ 664/288, subd. (b)(1)), and the error was prejudicial under both the federal standard of review articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) and the state law standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). Defendant also claims the trial court erred in imposing a full, consecutive sentence on count 1. In supplemental briefing, defendant claims the court erred in awarding him 611 days of custody credit rather than 612 days. He requests we correct this error and direct the trial court to issue an amended abstract of judgment.²

In response, the People contend defendant's instructional error claim is barred by the invited error doctrine. Alternatively, they contend the trial court did not have a sua sponte duty to instruct the jury on attempted forcible lewd conduct because theinstruction was not supported by substantial evidence and any error was harmless. They also contend defendant forfeited his sentencing error claim because he failed to object in the trial court and any error was harmless. The People agree defendant is entitled to one additional day of custody credit and they join in his request for the issuance of an amended abstract of judgment.

We conclude the trial court did not err in failing instruct the jury sua sponte on attempted forcible lewd conduct but, even if we assume error occurred, it was not prejudicial. With respect to defendant's challenge to his consecutive sentence on count 1, we reject his claim that the trial court was unaware of the scope of its sentencing discretion and we conclude that the court's error in failing to give a statement of reason for imposing a consecutive term under section 667.6, subdivision (c), was harmless.³ We accept the People's concession regarding defendant's custody credits, modify the judgment to reflect an award of 612 days of custody credit and direct the trial court to issue an amended abstract of judgment.

FACTUAL SUMMARY

I. Prosecution Case

A. M.H.

Victim M.H., who is defendant's nephew, was 13 years old at the time of the offenses committed against him and at the subsequent trial.⁴ M.H. testified that in early August 2015, he and defendant left El Centro for Sanger to visit family. Defendant previously lived with M.H.'s family and M.H. testified that prior to this trip, they were close and had a good relationship.

After they departed, defendant began talking about sexually explicit topics, including having sex with men and women, engaging in oral sex and hiring prostitutes. Defendant also talked to M.H. about defendant's penis, he had "lube" with him and he told M.H. he had "a lot [of condoms] in his luggage." M.H. alerted his mother by phone that things were "strange" and she began to call M.H. every 30 to 60 minutes. As they traveled, M.H. was unaware of their location because defendant would tell him one thing, but M.H. would see road signs that said another. At one point, defendant told M.H. to tell his mother they were staying in Pasadena with friends and not to tell her they were staying in a motel. When they stopped at a restaurant to eat, M.H. called his mother from the restroom and told her what defendant was saying. He also told her that defendant told him to lie to her.

M.H. testified that in the car, defendant kept grabbing his own penis and rubbing it. He also kept talking about sexual things to M.H. M.H. stated he and defendant had never had a conversation like that before and while he had not previously felt uncomfortable around defendant, this conversation made him very uncomfortable.

M.H. also testified he saw defendant take pills several times. One time defendant crushed the pill and ate it. Another time, he sent M.H. inside to pay for gasoline and told M.H. "he couldn't get [out] because he had [a] boner." As M.H. was returning to the car, he saw defendant take another pill. Defendant continued to rub himself and talk about sexual things.

M.H. testified defendant told him that by the end of the trip he was going to have several hundred dollars. After first telling M.H. they were going to stop in Pasadena, defendant said they were about 30 minutes from Sanger but were going to stop at a motel because he was tired, although he did not appear to be tired to M.H. Defendant told M.H. he was going to do something for defendant and when M.H. asked what defendant meant, defendant said he would see. Defendant also told M.H. he was going to help defendant do something before defendant went to sleep and defendant would give him another $100in the morning. Defendant told M.H. not to say anything about their location, the motel, what defendant was saying or the things defendant wanted to do.

M.H. expected the motel room to have two beds, but it only had one. M.H. testified he got underneath both blankets on the bed. Defendant told him they were both going to shower because he wanted M.H.'s "butt to be clean." M.H. responded that he did not need a shower and he told his two sisters by text what was happening. M.H. had told his mother he and defendant were at a motel and she called defendant, who was then in the bathroom taking a shower.

Defendant eventually came out of the bathroom with only a towel wrapped around him. He laid down next to M.H. on the bed and took off his towel, exposing his naked body. M.H. testified that when defendant got under the blankets, he got back on top of the blankets. Defendant then moved the blankets out of the way.

Defendant pulled M.H. closer to him, as if to cuddle with him. M.H. kept pulling away. Defendant grabbed M.H.'s hand and moved it toward defendant's penis approximately three times, but M.H. pulled his hand away. Defendant also put a $100 bill under his penis and told M.H. to get it, but M.H. did not do so. Defendant put his hand behind M.H.'s head and pushed it down toward defendant's penis. Defendant kept telling him, "[J]ust a little," which M.H. interpreted to mean engage in oral sex.

At first, the news was on the television, but, after defendant showered, he changed the channel to something pornographic. Defendant kept fondling his own penis and telling M.H. to watch the pornographic movie with him, but M.H. declined to do so.

M.H.'s mother called him again and he then told defendant he needed to charge his phone. Defendant directed M.H. to use the charger in the car and he unlocked it for M.H. Defendant then winked at M.H., said he had to take care of some business and went back inside the motel room. When M.H. told his mother what was going on, she told him to run and call 911. M.H. then ran and hid behind a green shipping containernear a gas station. As he was waiting for police to arrive, he saw defendant drive by twice.

B. L.G.

M.H.'s mother, L.G., testified she lives in El Centro and defendant is her uncle. She explained she, defendant and M.H. had planned to travel to Sanger together, but she was unable to go because of a medical appointment. Defendant used to live with her, and M.H. would sometimes go to the store with him, but the trip to Sanger was the first long trip M.H. had taken alone with defendant. L.G. testified she had a lot of confidence in defendant and trusted him to take care of her son.

L.G. testified that after defendant and M.H. left on their trip, something M.H. told her over the phone made her uncomfortable.⁵ As a result, she talked to M.H. many times during the trip. She also talked to defendant to distract him and she sometimes spoke with both of them at the same time on two separate phones, one on each ear.

At one point, defendant told L.G. they were in Pasadena. She told M.H. to look for road signs, but he was very nervous and unable to tell her where they were because defendant "was having a strange conversation." L.G. testified defendant never told her they were staying at the motel, but M.H. did. She told M.H. to be careful and watch his uncle, and to run and call the police if he felt fearful or in danger.

C. Other Testimony

Tulare County Sheriff...