P. v. Ochoa CA2/6

Filed 8/7/13 P. v. Ochoa CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B241804 (Super. Ct. No. BA393480-01) Plaintiff and Respondent, (Los Angeles County)

v.

FREDDY N. OCHOA,

Defendant and Appellant.

Freddy N. Ochoa appeals from the judgment following his conviction by jury of misdemeanor battery, a lesser included offense of battery resulting in serious bodily injury. (Pen. Code, §§ 242, 243, subd. (d).)1 The jury also acquitted him of assault by means of force likely to produce great bodily injury. (§ 245, subd. (a)(4).) The trial court sentenced him to 180 days in county jail. Appellant's sole contention on appeal is that the trial court erred by admitting prior crime evidence. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Prosecution Evidence The Ochoa family owned a five-bedroom house in Los Angeles. In 2012, appellant lived there with his brothers, Bobby Ochoa, and Danny Ochoa, their 89-year-

1 All statutory references are to the Penal Code unless otherwise stated.

old father, Joe Ochoa, Danny's "common-law" wife, Yvonne Reyes, and several younger family members. On the evening of January 31, 2012, Reyes, Danny, Bobby and Joe were in the living room. Reyes and Danny were drinking beer. Sometime after 9:00 p.m., appellant entered the living room. He and Danny started arguing about money. Reyes went into the kitchen. Danny joined her there and asked for money. She gave him $20. Danny gave the money to appellant, and continued arguing with him about money. Reyes approached Danny and appellant and yelled that she wanted her money back. Appellant punched Reyes in the face. She fell backward and hit her head on a cabinet. Her mouth and nose were bleeding. Reyes yelled at appellant to stop, and tried to put a chair between them. Appellant again punched Reyes in the face. She called 911. Reyes went to the emergency room. Her injuries included a cut lip, a swollen nose, and a broken tooth. Reyes and Danny each had a prior felony conviction of petty theft with a prior conviction. Their respective weights are 160 and 145 pounds. Appellant weighs between 450 and 500 pounds. Prior crimes Evidence In 2001, Reyes's adult son, Rudy, bought milk at the market. Appellant drank some of that milk. Reyes confronted him because he drank it without paying for it. Appellant went to another room, returned with a screwdriver, and started stabbing Rudy's legs. When Reyes tried to pull him away from Rudy, appellant scratched her with the screwdriver. Rudy's legs were bleeding. Someone called the police, who arrived and arrested appellant. In 2005, appellant asked Bobby to lend him money. Bobby refused. The next day, Bobby was in the kitchen when appellant entered and started to fight. Thinking that appellant was "playing," Bobby fought back. After the fight, Bobby realized that appellant had poked his neck eight times with "an ice pick," or "an electrical cord as sharp as an ice pick." Bobby weighed about 145 pounds in 2005.