People v. Ochoa CA2/4 ( 2013 )

Filed 12/14/13 P. v. Ochoa CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE, B249170
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA097996)
v.
LIBORIO OCHOA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
William C. Ryan, Judge. Affirmed.
Jill Ishida, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
______________________________
Liborio Ochoa appeals from an order denying his motion to recall his sentence
under the Three Strikes Reform Act of 2012, added by Proposition 36. (Pen. Code,
§ 1170.126). His appointed counsel filed a Wende brief. (People v. Wende (1979)
25 Cal.3d 436.) On September 6, 2013, we directed counsel to send the record and a
copy of counsel’s brief to appellant and notified appellant of his right to respond within
30 days. No response has been received.
In 1995, appellant was convicted of possession and transportation of cocaine for
sale (Health & Saf. Code, §§ 11351, 11352, subd. (a)), conspiracy to possess and
transport cocaine for sale (Pen. Code, § 182, subd. (a)(1)), and false compartment activity
(Health & Saf. Code, § 11366.8, subd. (a)). Enhancement allegations that appellant was
personally armed with a firearm, and that a principal was armed with a firearm, were
found to be true, and so were allegations that more than one kilogram of cocaine was
involved. (Pen. Code, § 12022, subd. (a)(1) & (c); Health & Saf. Code, § 11370.4,
subd. (a)(1).) Two alleged prior serious felony convictions also were found to be true.
(Pen. Code, § 667, subds. (b)-(i).)
Appellant was sentenced under the Three Strikes law to an indeterminate term of
25 years to life, plus seven years for the firearm and drug weight enhancements.
Additional sentence terms were stayed. Appellant’s sentence was reviewed in a prior
appeal. (People v. Ochoa (1996) 49 Cal.App.4th 697, review granted Jan. 15, 1997,
S056787, review dism. Oct. 1, 1997.)
On April 9, 2013, appellant filed a petition for a recall of sentence under Penal
Code section 1170.126. The trial court denied it because the firearm enhancement made
appellant ineligible for resentencing.
Penal Code section 1170.126 allows inmates serving an indeterminate life
sentence imposed upon conviction of a felony or felonies not defined as serious or violent
for purposes of the Three Strikes law to file a petition for a recall of sentence and request
resentencing. (See § 1170.126, subd. (b).) One of the eligibility conditions for
resentencing is that the inmate’s current sentence was not imposed for any of the offenses
listed in Penal Code section 667, subdivision (e)(2)(C)(i)-(iii). (Pen.Code, § 1170.126,
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subd. (e)(2).) Appellant’s current sentence was imposed for a controlled substance
offense enhanced under Health & Safety Code section 11370.4, which makes him
ineligible for resentencing under Penal Code section 667, subdivision (e)(2)(C)(i). He
also is ineligible under Penal Code section 667, subdivision (e)(2)(C)(iii), due to the
firearm enhancement.
Our review of the record reveals no arguable issues for appeal.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, J.
We concur:
WILLHITE, J.
MANELLA, J.
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