Filed 9/30/26 P. v. Ochoa CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent, A172905
v. (Napa County
FRANCISCO JAVIER OCHOA, Super. Ct. No. 23CR001385)
Defendant and Appellant.
Francisco Javier Ochoa pleaded no contest to two counts of lewd and
lascivious conduct with a child under 14 years old in exchange for a six-year
“lid” on his sentence. The trial court sentenced Ochoa to five years in prison.
Ochoa argues the trial court abused its discretion by failing to consider
factors that weighed in favor of a lesser sentence. We affirm.
BACKGROUND1
On April 29, 2023, officers were dispatched to a residence based on a
report of a child, Jane Doe, being touched by her mother’s boyfriend, Ochoa.
Doe, then 13-years old, disclosed that she woke up around midnight to find
Ochoa in her room with the door closed. Ochoa began touching Doe, who
pretended to be asleep. Ochoa touched and kissed Doe’s breasts under her
1 The factual background is taken from the police report, which
provided the factual basis for Ochoa’s plea.
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clothes. Ochoa removed Doe’s pants and rubbed her vagina before
penetrating it with his finger. Ochoa kissed Doe near her pubic area, on her
breasts, and on the mouth. Doe then kicked and pushed Ochoa off of her.
Ochoa then got up and said, “ ‘I’m sorry, I’m sorry.’ ” Ochoa approached Doe
again, but she pushed him off a second time.
Ochoa left the bedroom after Doe threatened to scream if he did not
leave. Doe told her sister about the incident approximately 30 minutes later,
after she was certain Ochoa was no longer nearby. While Doe’s sister was
calling the police, Ochoa tried to get into the room to tell her not to report the
incident.
On December 29, 2023, an information was filed charging Ochoa with
three counts of lewd and lascivious conduct with a child under 14 years old
(Pen. Code,2 § 288, subd. (a), counts 1-3); sexual penetration with a foreign
object of a child 14 years or younger and more than 10 years younger than
the defendant (§ 289, subd. (j), count 4); and dissuading a witness from
reporting a crime (§ 136.1, subd. (b)(1), count 5). The information further
alleged two aggravating circumstances, that the victim was particularly
vulnerable (Cal. Rules of Court, rule 4.421(a)(3))3 and that Ochoa took
advantage of a position of trust (rule 4.421(a)(11)).
Ochoa pleaded no contest to counts 1 and 2, in exchange for dismissal of
the remaining counts with a Harvey waiver (People v. Harvey (1979)
25 Cal.3d 754) and a six-year sentencing lid. Prior to sentencing, Ochoa filed
a “Request for Probation; Statement in Mitigation Pursuant to Rule of Court
2 All further statutory references are to the Penal Code.
3 All further rule references are to the California Rules of Court.
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4.437.”4 The People filed a sentencing brief asking that Ochoa be sentenced
to a term of six years. The trial court sentenced Ochoa to five years in prison:
the three-year low term on count 1 as the principal term, plus a consecutive
two-year term (one third the midterm) on count 2.
DISCUSSION
“We review discretionary sentencing decisions for abuse of discretion.
[Citation.] A court abuses its sentencing discretion when it acts arbitrarily
and capriciously, relies on improper matter in reaching its decision, or is
unaware of the scope of its discretion so that it does not exercise informed
discretion at all.” (People v. Knowles (2024) 105 Cal.App.5th 757, 764–765.)
“We presume that the trial court acted to achieve legitimate sentencing
objectives. [Citation.] The burden is on the party challenging the sentencing
decision to show that the court abused its discretion. . . . . ‘Unless the record
affirmatively demonstrates otherwise, the trial court is deemed to have
considered all the relevant sentencing factors set forth in the rules.’ ” (Id. at
p. 765.)
Ochoa argues that the trial court abused its discretion when it imposed
the five-year prison sentence because many factors favored imposition of a
probationary or a three-year sentence. Particularly, Ochoa notes his minimal
criminal record, his stable work history, his status as a “breadwinner,” the
support he provides for his disabled son, the various positive character
reference letters he submitted, his remorse and apologies for his conduct, and
that his psychological report noted that he did not exhibit any “deviance or
abnormality” such that he has a “very low risk” of reoffending. Ochoa
acknowledges that the trial court reviewed all the facts and considered a
4 Ochoa also filed 13 character letters in support as well as a
psychological evaluation.
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grant of probation or a lesser term. He argues, however, that the court
“failed to realize that these circumstances did not merit a prison term of 5
years.”
In essence, Ochoa asks that we reconsider the information before the
trial court and impose a different, more lenient sentence. However, “an
appellate court may not substitute its judgment about appropriate sentencing
for that of the trial court, but instead must give due regard to the discretion
vested in that court.” (People v. Dain (2025) 18 Cal. 5th 246, 258.)
The trial court stated it read the sentencing reports and briefing. After
argument from counsel, the trial court outlined its general sentencing
objectives and explained that, in determining the appropriate sentence, it
considered counts 1 and 2, as well as counts 3, 4, and 5, pursuant to the
Harvey waivers. The court also considered granting probation and rejected
that option, explaining that “it was difficult to make a decision even related
to probation.” The court noted that the case involved kissing and touching
but found that the “penetration . . . really makes this more aggravated or
gives it aggravating factors, more so than other cases.”
The trial court selected the three-year low term for the principal term,
count 1, “primarily” due to Ochoa’s low risk of reoffending. The court also
considered his willingness to comply with probation, his support of his
disabled son, and his stable employment. For count 2, the court imposed a
consecutive term of two years, one-third of the midterm, based on the factors
in aggravation. Specifically, the court stated that under rule 4.421(a)(1), the
crime involved “infliction of bodily harm, threats of great bodily harm [and]
other acts disclosing a high degree of cruelty of viciousness.” The court
highlighted that not only was there “no protection of the victim,” but Ochoa
“reapproached [her] and discouraged reporting.” The court further stated
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that under rule 4.421(a)(3), the victim was particularly vulnerable “in that
she was asleep in her own room with the door closed” when Ochoa entered
her room, closed the door, and began touching her. The court noted that it
had already accounted for the mitigating circumstances in selecting the
mitigated term on count 1 and concluded that it was “appropriate and just” to
impose a consecutive sentence on count 2.
We conclude that Ochoa has failed to demonstrate that the trial court
abused its discretion in imposing a five-year prison sentence. The trial
court’s decision was not irrational or arbitrary nor did it fall outside the
bounds of reason under the applicable law and the relevant facts. (People v.
Williams (1998) 17 Cal.4th 148, 162.) The court considered the entire record,
including, as Ochoa concedes, the mitigating factors presented. The court did
not rely on any improper consideration, nor did it misunderstand the scope of
its discretion. (People v. Knowles, supra, 105 Cal.App.5th at pp. 764–765.)
Rather, the court weighed the mitigating and aggravating factors and
exercised its discretion accordingly. On this record, we find no abuse of
discretion.
DISPOSITION
The judgment is affirmed.
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_________________________
Gordon, J.*
WE CONCUR:
_________________________
Streeter, Acting P. J.
_________________________
Goldman, J.
People v. Ochoa/A172905
* Judge of the Superior Court of California, County of San Francisco,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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