People v. Bahena-Bahena CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCD300901
- Trial judge
- Daniel B. Goldstein
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Michele M. Castillo (author), Joan K. Irion, Truc T. Do
Analysis
The trial court convicted the defendant of oral copulation of an intoxicated and unconscious person and sentenced him to three years in prison. The Court of Appeal affirmed the judgment after an independent review under People v. Wende found no reasonably arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Failure to instruct sua sponte on battery as a lesser-included offense“Here, the instruction was unwarranted because there was not substantial evidence from which a jury could conclude Bahena-Bahena was guilty of only battery rather than the greater offenses of oral copulation of an intoxicated or unconscious person.” | substantial evidence | not reached | unsure The appellate court did not issue a formal ruling on the merits of the lesser-included offense claim; instead, it noted the issue was identified by counsel but concluded that no arguable issues for reversal existed upon independent review of the record. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues and the court to independently review the record for error when counsel finds no issues.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal where no arguable issues exist, requiring a brief and court review.
- relied: People v. Miranda (2021) 62 Cal.App.5th 162 — Cited by counsel to suggest a contrary view on the necessity of a battery instruction, which the court implicitly rejected by finding no arguable error.
The appellate opinion: sound — The opinion is procedurally sound as it follows the Wende/Anders protocol for no-merit appeals. It correctly identifies the sole issue raised by counsel and concludes no arguable error exists based on the record.
How this analysis was made · dispute it
unusual dispositionA San Diego jury convicted Antonio Bahena-Bahena of oral copulation of an intoxicated person (Pen. Code, § 287, subd. (i)) and of an unconscious person (§ 287, subd. (f)), and the trial court imposed the low term of three years on count 1 and imposed and stayed the same term on count 2. On appeal, appointed counsel filed a Wende/Anders brief identifying only a possible sua sponte lesser-included-offense (battery) instructional issue; the Court of Appeal independently reviewed the record, concluded the battery instruction was unwarranted for lack of substantial evidence that only battery was committed, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's failure to instruct sua sponte on simple battery as a lesser included offense of oral copulation of an intoxicated or unconscious person“Here, the instruction was unwarranted because there was not substantial evidence from which a jury could conclude Bahena-Bahena was guilty of only battery rather than the greater offenses of oral copulation of an intoxicated or unconscious person.” | unclear | correct | agree with court A sua sponte instruction on a lesser included offense is required only where there is substantial evidence the defendant committed the lesser but not the greater offense. On this record the defense evidence was either that the victim was conscious and sexually inviting (which, if credited, would negate both the greater offense and any offensive touching) or that the defendant could not recall whether his mouth touched the victim's penis; the victim's testimony, the videos, and the controlled-call admissions all described oral copulation of a sleeping, heavily intoxicated person. There was no evidentiary basis for a jury to find a nonsexual or non-oral offensive touching in lieu of the charged conduct, so the court's conclusion is supportable. The opinion does not state the governing standard of review (de novo) or cite the governing test, and its 'Contra' citation to Miranda is left unexplained, but the result follows from the facts recited. |
Judgment of conviction and sentence affirmed after independent Wende/Anders review of the entire record“We reviewed the entire record as required by Wende and Anders and discovered no arguable issues for reversal on appeal.” | unclear | correct | agree with court The opinion follows the Wende procedure: counsel filed a no-issue brief with a statement of facts and a potential issue, the defendant was offered and declined the chance to file a supplemental brief, and the court states it independently reviewed the record. The facts recited (victim testimony corroborated by video and recorded admissions, low-term sentence with the second count stayed under section 654 principles) disclose no evident error. Because the appellate record itself is not before me, I can only confirm that the procedure and the stated conclusion are consistent with Wende. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and request to withdraw, accompanied by a brief referring to anything in the record that might arguably support the appeal; the court must then examine the record.
- relied: People v. Miranda (2021) 62 Cal.App.5th 162 — Cited with a 'Contra' signal at pages 176-178 as authority reaching a different conclusion on whether a battery lesser-included-offense instruction was required in a sex-offense prosecution involving an intoxicated or unconscious victim; the opinion does not explain the distinction.
- missed: People v. Breverman (1998) 19 Cal.4th 142 — A trial court must instruct sua sponte on a lesser included offense only when there is substantial evidence from which a reasonable jury could conclude the defendant committed the lesser offense but not the greater; this is the governing test the opinion applied without citation.
The appellate opinion: sound with gaps — The opinion correctly follows the Wende/Anders procedure and reaches a defensible result on the single identified issue, since nothing in the recited evidence would support a finding of battery alone rather than oral copulation of an unconscious or intoxicated person. It is thin, however: it neither states the de novo standard of review nor cites the Breverman test it applies, and it cites Miranda with a bare 'Contra' signal without explaining why that case does not control.
Opinion
Filed 5/28/25 P. v. Bahena-Bahena CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D084835
Plaintiff and Respondent, v. (Super. Ct. No. SCD300901)
ANTONIO BAHENA-BAHENA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Daniel B. Goldstein, Judge. Affirmed. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Antonio Bahena-Bahena of oral copulation of an intoxicated person (Pen. Code, § 287, subd. (i); count 1) and an unconscious person (§ 287(f); count 2). Appointed appellate counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 indicating he found no arguable issues for reversal on appeal. Counsel asks us to review the record for error as Wende requires. We offered Bahena-Bahena the opportunity to file his own brief, but he has not done so. Based on our independent review of the record, we find no reasonably arguable appellate issues. We thus affirm. I. A. John Doe and Bahena-Bahena met in a store. Bahena-Bahena asked for Doe’s cell phone number, and Doe, who did not have any friends in San Diego, gave it to him. After chatting for several weeks, they met several times in person. They would talk, drink, smoke marijuana, and listen to music in Bahena-Bahena’s car or truck. During their first meeting, Bahena-Bahena asked Doe if he liked men. Doe said “no,” he “wasn’t gay,” and that he “was going out with a woman.” According to Doe, Bahena-Bahena thanked Doe for letting him know and told Doe he was gay. According to Bahena-Bahena, he nonetheless thought Doe might be interested in something more than friendship because Doe would do things like touch Bahena-Bahena’s hair and say that he “‘like[d]’” and “‘appreciate[d]’” him. B. According to Doe, he mentioned to Bahena-Bahena that his “birthday was coming up,” and Bahena-Bahena invited Doe to meet so he would not be alone. According to Bahena-Bahena, Doe asked him to spend time with him on his birthday. Either way, Bahena-Bahena picked up Doe the evening before Doe’s birthday. As usual, they drank, smoked marijuana, chatted, and listened to music in Bahena-Bahena’s car. Between the two of them, they consumed 2 approximately 40 beers over the course of the night. Bahena-Bahena claimed they also drank tequila. By 5:00 a.m., Doe felt “very dizzy and very sleepy” and had difficulty staying awake. On a scale of 1 to 10, he described his level of intoxication as a 9. On the same scale, Bahena-Bahena claimed to be at 9.5. According to Doe, at one point, he awoke to something tickling his upper lip. When he opened his eyes, he saw Bahena-Bahena move quickly away from him. Doe asked him, “What did you do,” and Bahena-Bahena swore he “didn’t do anything.” Doe fell back asleep. He awoke to the sensation of “something wet,” which he identified as Bahena-Bahena’s mouth, on his penis. He then felt Bahena-Bahena “pulling” on his penis “with his hand.” Doe opened his eyes and saw Bahena-Bahena “removing his mouth from [Doe’s] penis” before going back to his seat. Doe looked down and saw his zipper and underwear were pulled down and “[e]verything there was damp.” There was “visc[o]us” fluid on his penis. Doe left. C. Doe went home and fell asleep. When he awoke, he had no recollection of what had happened over the course of the prior evening. After going on a date with the woman he was seeing, Doe went home and began looking at photographs and videos on his cell phone. Doe found videos that reminded him of what Bahena-Bahena had done. In one video, Bahena-Bahena tried to kiss Doe. Another showed Bahena- Bahena’s head moving up and down in the region of Doe’s crotch. Doe called the police; he eventually went to a police station and sent the videos he had taken to a detective.
3 While at the station, Doe participated in a “controlled call” with Bahena-Bahena to discuss the incident while the detective listened. During the call, Bahena-Bahena apologized profusely to Doe and admitted giving Doe oral sex “a little bit” and “graz[ing]” Doe’s penis with his lips. Bahena- Bahena then backtracked, stating, “I didn’t give you oral sex.” Bahena- Bahena also acknowledged that Doe was “asleep” and “woke up” to Bahena- Bahena touching his penis. Bahena-Bahena was arrested and charged with the two offenses of which he eventually was found guilty. D. At trial, the People presented Doe’s testimony, Doe’s videos, and the audio recording of the controlled call. Bahena-Bahena introduced the testimony of a forensic toxicologist, who explained the effects of consuming alcohol and marijuana on a person and their consciousness. Bahena-Bahena also testified on his own behalf. He claimed Doe was conscious and awake, Doe was making sexually inviting movements, and he could not remember if his mouth ever touched Doe’s penis. The jury found Bahena-Bahena guilty of both counts. The court sentenced Bahena-Bahena to the low term of three years in prison for count 1 and imposed and stayed the same sentence on count 2. II. Bahena-Bahena’s counsel filed a Wende brief setting forth a statement of the case and facts, urging no grounds for reversal, and asking this court to independently review the record for error. To assist the court in its review under Anders, 386 U.S. at pp. 744-745, counsel identified the following issue he considered in evaluating the potential merits of this appeal: “Did the trial 4 court err by not instructing sua sponte on battery as a lesser-included offense of [oral copulation] of an unconscious or intoxicated person?” Here, the instruction was unwarranted because there was not substantial evidence from which a jury could conclude Bahena-Bahena was guilty of only battery rather than the greater offenses of oral copulation of an intoxicated or unconscious person. (Contra, People v. Miranda (2021) 62 Cal.App.5th 162, 176-178.) We reviewed the entire record as required by Wende and Anders and discovered no arguable issues for reversal on appeal. Competent counsel has represented Bahena-Bahena on this appeal. III. We affirm the judgment.
CASTILLO, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12