Filed 11/16/23 P. v. Ochoa CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROSA OCHOA,

Defendant and Appellant.

 B321637

 Los Angeles County

Super. Ct. No. MA075931

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.

____________________
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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 
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codefendant in this particular trial. You must not speculate 

about whether those other persons have been or will be 

prosecuted. Your duty is to decide whether the defendant on trial 

here committed the crimes charged.”

In her initial closing argument, the prosecutor referenced 

this instruction and accurately explained it. 

During the defense argument, Ochoa’s counsel noted other 

people lived on the relevant nine-acre parcel of land and kept 

animals there. Counsel listed three names and Ochoa’s husband. 

He invited the jury to consider whether one of these others “could 

have been caring for and raising the birds that were seized 

behind the Ochoa residence.” 

The prosecutor responded to this defense argument in 

rebuttal and returned to CALCRIM No. 373. The prosecutor 

highlighted evidence showing the animals were Ochoa’s and 

stated, with our emphasis: 

“And, you know, the defense claims that the evidence does 

not tie the area behind her house to her, and he asks you to 

figure out if one of the other individuals involved was the owners. 

I think he named Mr. Casillas, Mr. Fernandez, Mr. Quitquit, and 

the defendant’s own husband, and that’s exactly what 373 asks 

you not to do.” 

Ochoa challenges the italicized remark, claiming it 

misdescribed the instruction and improperly told jurors they 

could not consider evidence of possible third party culpability. In 

Ochoa’s view, the remark imposed an erroneous limit on the 

evidence the jury could consider when assessing her guilt and 

misled them on their fact finding role. 

A defendant claiming ineffective assistance of counsel must 

show deficient performance by counsel that prejudiced the 
4

defense. (Johnsen, supra, 10 Cal.5th at p. 1165.) On direct 

appeal, we find deficient performance only if (1) the record shows 

counsel had no rational tactical purpose for the challenged act or 

omission, (2) counsel was asked for a reason and failed to provide 

one, or (3) no satisfactory explanation could exist. (Ibid.) We 

defer to counsel’s reasonable tactical decisions and presume 

counsel acted within the wide range of reasonable professional 

assistance. (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) 

Whether to object to the prosecution’s argument is a highly 

tactical decision. (Johnsen, supra, 10 Cal.5th at p. 1165.) 

Defense counsel’s failure to object to the prosecution’s 

rebuttal argument was rational. 

The challenged remark was brief: part of one sentence. The 

remark responded to the defense argument about others at the 

property and cited the relevant jury instruction. 

The prosecutor already had explained the instruction 

accurately to the jury and had noted the applicable law was in 

the jury instructions. The trial court read the correct instruction. 

It directed the jury to follow its instructions in the event of any 

conflicting comments by counsel. The court announced it would 

provide jurors with copies of the instructions in the jury room. 

Defense counsel also might not have objected because he 

reasonably might have interpreted the prosecutor’s remark as 

consistent with the law. The instruction told the jury its “duty is 

to decide whether the defendant on trial here committed the 

crimes charged.” The defense had just referred to several others 

who could have been responsible. In rebuttal, the prosecution 

was trying to bring jurors back to the defendant and their key 

task of determining whether she was guilty, not whether 

neighbors also were blameworthy. 
5

In short, defense counsel may have determined that 

objecting to the prosecutor’s passing rebuttal remark was 

pointless, unnecessary, or improper. The choice not to object was 

reasonable. (See Mai, supra, 57 Cal.4th at p. 1018 [whether 

objections should be made is within counsel’s discretion and 

rarely implicates ineffective assistance of counsel].)

Because Ochoa has not established deficient performance 

by her trial counsel, we need not reach the issue of prejudice. 

II

Ochoa argues her trial counsel also provided ineffective 

assistance by failing to request optional cautionary language with 

CALCRIM No. 358, which concerns certain out of court 

statements made by a defendant. Once again, Ochoa has failed 

to establish deficient performance, so we do not assess prejudice.

The trial court admitted several statements by Ochoa. 

Sergeant Edgar Chavarria testified about statements 

Ochoa made when sheriffs executed a search warrant and 

discovered injured roosters and an injured goat behind Ochoa’s 

house. Chavarria is a certified Spanish speaker who spoke with 

Ochoa in Spanish. 

Chavarria facilitated a recorded interview with Ochoa in 

Spanish and provided English translation. The jury saw the 

video recording of this interview and had a transcript of it. 

In the interview, Ochoa identified her property as “only the 

house” yet admitted her chickens and goats were behind the 

house. Ochoa circled this area on a map and then answered some 

questions about her roosters. Chavarria noted in English, “she’s 

not too specifically clear” about the roosters but “every animal 

that is behind her residence, uh, belongs to her.” Chavarria 

testified the area Ochoa identified behind her house as hers was 
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enclosed by fencing. Ochoa confirmed in the interview that she 

had the roosters since they were small, but she did not know if 

they were fighting roosters. She admitted her goat was injured 

when she got it eight months before, she had tried to treat the 

goat, but she did not take it to a veterinarian. The lower part of 

the goat’s leg was necrotic and missing; but Ochoa maintained 

her goat was fine, as it had just given birth. 

Chavarria had other conversations with Ochoa during the 

multi-day search operation at the property, conversations that 

were not recorded. He testified Ochoa said she did not fight the 

roosters, hers were not fighting roosters, and she had never been 

to a cockfight. She also said she and her husband breed “them” 

and her husband sends “some of them” to Mexico. 

The jury also saw Ochoa’s written statement. Ochoa had 

signed an animal relinquishment form—which was in English 

and Spanish—relinquishing about 40 game birds and two goats 

(a mother and her newborn kid). Ochoa told Chavarria and 

another sergeant that she owned these animals, so this other 

sergeant put an “X” in the box stating Ochoa was the legal owner 

of the animals. 

At trial, Ochoa claimed she could only read a little Spanish 

and did not read the form before signing it. Ochoa testified, 

among other things, that she rented her home and the front yard 

but not the back area, and she never used this area. She did not 

raise fighting birds, did not sell them, and was unaware of the 

goat needing medical attention. She denied making some of the 

unrecorded statements to Chavarria and owning the injured 

animals. 

Going back to the instruction on defendant statements, 

CALCRIM No. 358 provides, and the trial court instructed:
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“You have heard evidence that the defendant made 

oral statements before the trial. You must decide whether 

the defendant made any of these statements, in whole or in 

part. If you decide that the defendant made such 

statements, consider the statements, along with all the 

other evidence, in reaching your verdict. It is up to you to 

decide how much importance to give to the statements.” 

The form instruction has the following language in 

brackets: “Consider with caution any statement made by (the/a) 

defendant tending to show (his/her) guilt unless the statement 

was written or otherwise recorded.” This is the optional 

cautionary language.

The trial court did not provide this language. The record 

does not disclose why counsel did not request it. In Ochoa’s view, 

there was no downside and only upside in adding this language, 

as Ochoa’s unrecorded statement was “clearly detrimental” and 

essentially an admission of guilt that she bred fighting birds. 

Also, there was no harm in focusing the jury on Ochoa’s recorded 

statement, which was partly exculpatory. 

The cautionary instruction aids the jury in determining 

whether an admission in fact was made. (People v. Diaz (2015) 

60 Cal.4th 1176, 1185 (Diaz).) It is not required absent a request 

for it. (Id. at p. 1189.) As our Supreme Court has recognized, 

“[t]he cautionary instruction does not reflect a legal principle 

with which jurors would be unfamiliar absent the instruction, 

and the defendant may not always want the instruction to be 

given.” (Ibid.) 

“The cautionary instruction is concerned with the 

reliability and credibility of the witness who testifies about the 

defendant’s statements.” (Diaz, supra, 60 Cal.4th at p. 1187.) 
8

Here, defense counsel reasonably could have concluded there was 

little utility and perhaps some risk in drawing further attention 

to the credibility of the officer who testified about Ochoa’s 

unrecorded statements. Chavarria was a 20-year law 

enforcement veteran with no apparent reason to lie or to frame 

Ochoa. This portion of Chavarria’s testimony was brief and 

blended with testimony about Ochoa’s recorded statements. 

Counsel alternatively and reasonably might have 

determined requesting the cautionary language worked to 

Ochoa’s disadvantage, given Ochoa’s unrecorded statements 

included denying her birds were fighting birds and arguably 

admitting she bred and shipped only non-fighting roosters. 

Counsel similarly and reasonably could have viewed the 

recorded interview as more harmful to Ochoa’s case. But the 

optional warning in CALCRIM No. 358 would not reach Ochoa’s 

recorded statement. 

Not requesting the optional language was a rational 

tactical choice. 

III

Finally, Ochoa urges us to find cumulative error, arguing 

the combined effect of the two missteps here rendered her trial 

fundamentally unfair. Ochoa has demonstrated neither multiple 

trial errors nor an unfair trial. (See People v. Poletti (2015) 240 

Cal.App.4th 1191, 1216 [appellate court reverses a judgment 

under the cumulative error doctrine if there is a reasonable 

possibility the jury would have reached a more favorable result 

absent a combination of errors].)

///

 
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DISPOSITION

We affirm the judgment.

WILEY, J.

We concur: 

STRATTON, P. J. 

VIRAMONTES, J.