California Court of Appeal Dec 30, 2024 No. E083128Unpublished
Filed 12/30/24 P. v. Ogando CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083128
v. (Super.Ct.No. FSB22000392)
JUAN RICARDO OGANDO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Rafael Arreola,
Judge. Affirmed.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance by Plaintiff and Respondent.
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INTRODUCTION
Defendant and appellant Juan Ricardo Ogando was charged by information with
two counts of committing a lewd act upon a child under the age of 14. (Pen. Code1, §
288, subd. (a), counts 1 & 2.) The information also alleged that numerous aggravating
factors applied. (§ 1170, subd. (b)(2).)
Prior to trial, the trial court ordered a psychiatric evaluation of defendant, under
section 288.1. Defendant was evaluated by a psychologist, who found that he did not
meet the criteria for being a pedophile. The psychologist recommended that he be
granted probation.2
A jury found defendant guilty of both counts and found true the aggravating
factors that the victim was particularly vulnerable, and defendant took advantage of a
position of trust to commit the offense. In view of the aggravating factors, the trial court
sentenced defendant to the upper term of eight years on count 1 and two years (one-third
the midterm) on count 2. It also issued a 10-year protective order, prohibiting contact
with defendant’s wife and children.
Defendant filed a timely notice of appeal. We affirm.
1 All further statutory references will be to the Penal Code, unless otherwise indicated.
2 Two other psychologists evaluated defendant and filed reports, but the parties stipulated that those reports were inadequate. 2
FACTUAL BACKGROUND
At the time of trial, the victim (defendant’s daughter) was 19 years old. She
testified that, in 2016, when she was 11 years old, defendant was sleeping next to her and
started massaging her. Defendant routinely massaged her during her childhood, but this
time, he placed his hand under her shirt and moved his hand toward her chest. She felt
uncomfortable and confused. On another occasion, the victim woke up to defendant
raising her knees up to her waist, putting his waist to her buttocks, and repeatedly moving
his pelvis against her. She said she felt his penis touching her. The victim testified there
were other incidents over the next few years when defendant would massage her and then
rub different parts of her body with his penis.
In 2021, the victim confronted defendant about his conduct, and he gave her
different excuses, such as her mother (mother) was working a lot at the time so they
“weren’t having that kind of attention with each other.” The victim asked if they should
tell mother, and defendant said no, because the mother was going through chemotherapy
for her ovarian cancer, so it would be too much for her. Defendant said they should
never tell mother.
In 2022, the victim told her youth pastor about defendant’s conduct because she
“couldn’t handle it anymore.” A few days later, the victim told mother as well.
The victim testified that, on another occasion, she was talking to mother about
“everything going on,” when defendant walked in on the conversation and said he wanted
to talk to her. Defendant was very emotional and repeatedly apologized to the victim.
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However, the next day, he went back to making excuses for his behavior. Subsequently,
the victim reported defendant’s conduct to the police.
At trial, mother testified that she found out about defendant’s sexual abuse of their
daughter in 2022. Mother said she was shocked and had no idea. She also confirmed
that she was diagnosed with ovarian cancer in 2021 and was in active treatment until
October 2021. Mother testified that the victim said the abuse occurred “about two times
a month for many years.” Mother confronted defendant, and he admitted his
inappropriate conduct.
A police detective also testified at trial and said he was provided a referral from
Child Protective Services regarding defendant’s conduct toward the victim. The
detective interviewed the victim, and she disclosed “multiple events of abuse.” The
detective contacted defendant and later interviewed him at the police station. An audio
recording of the interview was played for the jury. The detective gave defendant an
opportunity to apologize to his daughter, and the apology was recorded and played for the
jury, as well.
Defendant testified on his own behalf and denied ever touching the victim
inappropriately.
DISCUSSION
Defendant appealed and, upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
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the case and the following potential arguable issues: (1) whether the court abused its
discretion in sentencing defendant to the upper term when the mental health evaluations
found he was not a pedophile, and the psychologist recommended probation; and (2)
whether the court abused its discretion when it permitted the prosecution “to present
evidence through [the victim] of [his] other acts of a sexual nature.” Counsel has also
requested this court undertake a review of the entire record.
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's conviction and sentence for lewd acts upon a child after finding no arguable issues upon independent review of the record pursuant to People v. Wende.
Issues
Whether the trial court abused its discretion in sentencing the defendant to the upper term despite mental health evaluations recommending probation.
Whether the trial court abused its discretion by permitting the prosecution to present evidence of the defendant's other acts of a sexual nature.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.”