People v. Ochoa

Filed 8/31/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B264450

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA413280) v.

BRAYAN OCHOA,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County, Craig Richman, Judge. Reversed in part. ______

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb, and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent. ______

A jury found appellant Brayan Ochoa guilty of premeditated and deliberate attempted murder (count 1) and attempted extortion (count 2). Appellant argues that the evidence was insufficient to establish that he committed attempted extortion against the only victim identified in the information, and, in the alternative, that under Penal Code section 654,1 the court erred in imposing consecutive sentences on the attempted extortion and attempted murder convictions. We reverse the judgment of conviction on count 2 and affirm the judgment in all other respects. FACTUAL AND PROCEDURAL BACKGROUND In the summer of 2013, Mendeleyevic Martinez Santiago and Gabino Martinez worked at a food truck parked on a street in Hollywood. Santiago worked inside the truck while Martinez worked outside the truck, operating a grill and broiler. At around 3:00 a.m. on July 6, 2013, while Santiago helped customers, appellant and a companion approached the food truck and knocked on the back door. When Santiago opened a small window in the door, appellant told Santiago that the food truck “belonged” to the Mara Salvatrucha street gang and that he was there to collect the “rent” from the truck owed to the gang.2 Santiago informed appellant that he did not know anything about the “rent,” and told him to come back the next day to speak to the owner. Appellant responded that he would have “to collect” the money “his way” and then he walked away. At the time appellant approached the truck, Martinez stood outside cleaning the broiler. From a distance of about 15 feet, Martinez saw appellant talk to Santiago, but he did not hear their conversation, nor did he know what they discussed. Martinez observed appellant walk away from the truck. 3 Neither Martinez nor Santiago saw appellant with a weapon at that time.