People v. Ochoa CA2/8

Filed 11/16/23 P. v. Ochoa CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B321637

Plaintiff and Respondent, Los Angeles County Super. Ct. No. MA075931 v.

ROSA OCHOA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Alan Z. Yudkowsky, Commissioner. Affirmed. Elizabeth K. Horowitz, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent. ____________________

A jury convicted Rosa Ochoa of two counts of animal cruelty and one count of possessing a bird for fighting, while acquitting her of two counts of failing to care for an animal. The trial court sentenced Ochoa to 28 months in county jail but suspended all but six months of the sentence. Ochoa claims two issues related to jury instructions require reversal. We affirm. Because an overview of the trial is unnecessary to resolve this appeal, we proceed to the issues. I Ochoa claims the prosecution committed misconduct in its rebuttal argument by misstating the law set forth in CALCRIM No. 373, which concerns other perpetrators. Ochoa forfeited this issue by failing to raise it at trial. (See People v. Johnsen (2021) 10 Cal.5th 1116, 1164 (Johnsen) [timely and specific objection required to preserve claims of prosecutorial misconduct].) Ochoa does not claim objecting or admonishing the jury would have been ineffectual. (See id. at pp. 1164–1165.) Grasping this forfeiture, Ochoa alternatively claims her trial counsel provided ineffective assistance by failing to object to the prosecution’s argument. This claim is mistaken. This case about animal cruelty involved unrelated claims of cockfighting and a severely injured goat. Ochoa’s defense was innocence: someone else had control over the area behind her home and the injured animals found there, and she was not the wrongdoer. The relevant instruction regarding other wrongdoers, CALCRIM No. 373, provides: “The evidence shows that other persons may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a