People v. Ochoa CA3

Filed 10/7/22 P. v. Ochoa CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093852

Plaintiff and Respondent, (Super. Ct. No. 18FE015813)

v.

XAVIER OCHOA,

Defendant and Appellant.

A jury found defendant Xavier Ochoa guilty of robbery and found true an allegation he personally used a firearm. He contends the trial court, in declining to strike his firearm enhancement, abused its discretion by relying on inapplicable aggravating factors and failing to adequately consider mitigating factors associated with his youth. We will affirm the judgment.

1

BACKGROUND On his 18th birthday, while on juvenile probation for a firearm possession offense (Pen. Code, § 25400, subd. (a)(1)),1 defendant robbed the victim at gunpoint. The victim had seen defendant’s social media post offering a gun for sale and they arranged to meet. When the victim got in defendant’s car, defendant pointed a gun at his head, threatened to shoot him, and took $700 from the victim. A jury found defendant guilty of second degree robbery (§ 211) and found true the allegation defendant personally used a firearm (§ 12022.53, subd. (b)). A presentence probation report listed several circumstances in aggravation. In particular, the crime involved great violence and other acts disclosing a high degree of cruelty, viciousness, or callousness; the manner in which the crime was carried out indicated planning; and, defendant was on juvenile probation when the crime was committed. Defendant was also involved in several disciplinary incidents while in custody. In mitigation, the probation report noted defendant was youthful. The probation report recommended sentencing defendant to the middle term of three years plus 10 years for the firearm enhancement. At sentencing in March 2021, defense counsel urged the trial court to strike the firearm enhancement and sentence defendant to the upper term of five years for the robbery, arguing defendant only briefly used the gun to threaten the victim and had “essentially no criminal record.” Alternatively, if the court was not inclined to strike the enhancement, counsel argued, the court should impose the low term of two years, “given the facts and circumstances of the case, given Mr. Ochoa’s youth, given Mr. Ochoa’s lack of a criminal record.”