People v. Ochoa
207 Cal. Rptr. 3d 181
Cal. Ct. App.2016Background
- In July 2013, appellant Brayan Ochoa and a companion approached a Hollywood food truck and told an employee (Santiago) the truck “belonged” to the Mara Salvatrucha gang and that they had come to collect “rent.”
- Santiago told Ochoa to return the next day to speak to the owner; Ochoa warned he would collect the money “his way.”
- About five minutes later, Ochoa approached another employee, Gabino Martinez, tapped him on the shoulder, and shot him in the face; Martinez survived and identified Ochoa as the shooter.
- The information charged Ochoa with attempted premeditated murder (count 1) and attempted extortion of Martinez (count 2), with gang and firearm enhancements; a jury convicted on both counts and found enhancements true.
- The trial court sentenced Ochoa to 52 years to life (consecutive terms: 40 years-to-life on attempted murder and 12 years on attempted extortion). Ochoa appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Martinez was victim of attempted extortion | Prosecutor: the extortion targeted the food truck business and its employees (including Martinez) so evidence supports attempted extortion conviction | Ochoa: no evidence he attempted to obtain money/property from Martinez; no threats or demands made to Martinez before shooting | Reversed as to count 2 — insufficient evidence that Martinez was the extortion victim and defendant lacked notice of that theory because the information named Martinez only |
| Adequacy of charging document / notice | Prosecutor: could proceed on theory that business was the target via its employees | Ochoa: information identified Martinez only; conviction cannot stand for an uncharged victim/theory | Court: Prosecutor should have amended information to name business/owner; failure to do so deprived defendant of fair notice — reversal required |
| Consecutive sentencing under Penal Code § 654 | People: consecutive sentences appropriate (implicitly) | Ochoa: § 654 prohibits multiple punishments for the same act/omission (challenge to consecutive terms) | Court did not resolve § 654 issue because conviction on count 2 was reversed; no remand on that issue |
Key Cases Cited
- People v. Smith, 37 Cal.4th 733 (2005) (standard for sufficiency of the evidence review)
- People v. Sales, 116 Cal.App.4th 741 (2004) (elements of attempted extortion: specific intent and direct ineffectual act)
- People v. Thomas, 43 Cal.3d 818 (1987) (due process requires notice of the specific charge)
- People v. Anderson, 141 Cal.App.4th 430 (2006) (information shows prosecution’s intent to prove all elements and provides notice)
- People v. Parks, 118 Cal.App.4th 1 (2004) (court lacks jurisdiction to convict of an uncharged offense; notice requirement)
- People v. Graff, 170 Cal.App.4th 345 (2009) (information may be amended at any stage, including close of trial)
- People v. Hamernik, 1 Cal.App.5th 412 (2016) (appellate court may not order amendment of the information)