People v. Ocobachi ( 2024 )

Filed 9/25/24 Certified for Partial Pub. 10/23/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B330062
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA320049)
v.
FILIBERTO OCOBACHI, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Reversed and
remanded.
Bess Stiffelman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Roberta L. Davis, Deputy
Attorneys General, for Plaintiff and Respondent.
Jeffrey F. Rosen, District Attorney (Santa Clara), and
Alexandra W. Gadeberg, Deputy District Attorney, for the
County of Santa Clara as Amicus Curiae on behalf of Plaintiff
and Respondent.
******
Defendant and appellant Filiberto Ocobachi, Jr.
(defendant), appeals from the order denying his petition for
vacatur of his manslaughter conviction and for resentencing
pursuant to Penal Code section 1172.6, entered after an
evidentiary hearing.1 Defendant contends the trial court erred in
admitting the transcript of grand jury proceedings into evidence
and the ruling was not supported by substantial evidence.
Defendant also contends the trial court failed to appropriately
apply the elements of direct aiding and abetting implied malice
murder. Defendant requests any remand include an order to
transfer to juvenile court for resentencing. The People concede
the trial court’s reliance on the grand jury transcript was error,
but claim the order was nevertheless supported by substantial
evidence and that the court properly applied the appropriate
elements.2
We conclude the grand jury transcripts were inadmissible,
and the remaining evidence presented was insufficient to support
the order. We thus reverse the order and remand for a new
evidentiary hearing pursuant to section 1172.6, subdivision
1 All further unattributed code sections are to the Penal Code
unless otherwise stated.
2 We allowed the Santa Clara County District Attorney to
file an amicus curiae brief and to participate in oral argument
regarding the admissibility of grand jury transcripts.
2
(d)(3). As we remand the matter for a new evidentiary hearing,
we find it premature at this time to address defendant’s petition
to transfer this matter to juvenile court.
BACKGROUND
2007 conviction
In 2006 defendant and five codefendants were accused of
murder based on a shooting during a fight in a pool hall. All were
indicted for murder, and codefendant Joseph Bonilla was alleged
to have personally and intentionally discharged a firearm,
proximately causing great bodily injury and death to the victim,
Alfredo Briano. Defendant and the other four codefendants were
not accused of firing the gun. The indictment alleged pursuant to
section 182.22, subdivision (b)(1) that count 1 was committed to
benefit a gang, and pursuant to section 12022, subdivisions (d)
and (e)(1) that a principal used a firearm in the commission of
the crime.
In 2007, defendant and his codefendants (except Joseph
Bonilla)3 entered into a plea agreement to an amended
indictment and each pled no contest to voluntary manslaughter
in violation of section 192, subdivision (a) (count 1) and an added
count, assault by means of force likely to produce great bodily
injury in violation of section 245, former subdivision (a)(1)4 (count
2). In addition, they each admitted the gang allegation and the
allegation that a principal used a firearm in the commission of
3 The codefendants entering a plea along with defendant
were Guillermo Huerta, Erik Perez, Rudy Fernandez, and Oscar
Bonilla.
4 See now section 245, subdivision (a)(4); Statutes 2011,
chapter 183, section 1.
3
the crime. Defendant and codefendants agreed, and counsel
stipulated to a factual basis for the plea consisting of statements
in “the police reports and the indictment hearing,” that each was
“involved in an assault that resulted in the death of Alfredo
Briano,” and that none of these defendants was the shooter.
Defendant was sentenced to 18 years in prison.
Petition for resentencing
In February 2022, defendant filed a petition for vacatur of
his manslaughter conviction and for resentencing pursuant to
section 1172.6. Section 1172.6 provides a procedure to petition
for retroactive vacatur and resentencing for those who could not
be convicted of murder under sections 188 and 189 as amended
effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th
952, 957.) Sections 188 and 189, the laws pertaining to felony
murder and murder under the natural and probable
consequences doctrine, were amended “to ensure that murder
liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant
in the underlying felony who acted with reckless indifference to
human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Effective
January 1, 2022, the resentencing procedure was extended to
those convicted of manslaughter. (Stats. 2021, ch. 551, § 2; see
§ 1172.6, subd. (a).)
Defendant’s petition alleged the three section 1172.6,
subdivision (a) conditions.5 Once a petitioner makes a prima
5 As relevant here, those conditions are as follows: an
indictment was filed against him that “allowed the prosecution to
proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on that
4
facie showing of eligibility for relief, an evidentiary hearing is
held pursuant to section 1172.6, subdivision (d), “at which the
prosecution bears the burden of proving, ‘beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437.
(§ 1172.6, subd. (d)(3).) ‘A finding that there is substantial
evidence to support a conviction for murder, attempted murder,
or manslaughter is insufficient to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.’ (Ibid.)
‘If the prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.’ (Ibid.)” (People v. Strong
(2022) 13 Cal.5th 698, 709.)
Here, the prosecution filed a response to the petition and
did not oppose the issuance of an order to show cause. The trial
court appointed counsel for defendant, the parties filed briefs,
and the evidentiary hearing was held April 21, 2023. (See
§ 1172.6, subds. (c) & (d).)
Evidence presented at hearing
Prosecution evidence
The trial court announced its ruling was based on all the
evidence before the court, including the transcript of the grand
jury testimony, a video shown to the grand jury, and the plea and
person’s participation in a crime”; he was convicted of
“manslaughter [after he] accepted a plea offer in lieu of a trial at
which [he] could have been convicted of murder”; and, he “could
not presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a).)
5
sentencing transcripts. Defendant objected to the inclusion of the
grand jury testimony in his hearing brief and again at the
evidentiary hearing. The objection was overruled.6
The grand jury testimony transcript included narration of
the video by Detective Joseph Martinez, an investigating officer
in the case. The video contains no audio and shows different clips
of the pool hall incident, with some clips showing the same action
from different camera angles. The transcript includes Detective
Martinez’s explanation of the action.
The video essentially shows a group of young men and
women entering the pool hall, and during the next approximately
four minutes a fight breaks out between them and another group
of people. At 4:35 to 4:39 minutes into the video, a person in a
white T-shirt is seen going from the left side of the screen to the
right, carrying a pool stick and then striking another person with
it once, apparently causing the person to fall to the floor. At 5:07
a person in a patterned shirt is seen striking someone on the floor
several times with a pool stick. Between 5:34 and 5:46 people are
seen leaving the area, appearing to duck behind pool tables
momentarily and then get up and start walking around. Between
6:07 and 6:20 a highlighted person comes into view behind two
men in white T-shirts, reaches for his waistband, pulls out a gun
and points it at a person out of view. The gunman then goes in
the direction of the pointed gun, until he is almost out of view
with his back to camera, turns back, puts the gun down to his
6 The People concede the trial court erred in admitting the
grand jury testimony. We therefore do not summarize it in
depth, but refer to it as necessary to the parties’ arguments.
Defendant also successfully objected to the admission of
testimony from codefendant’s trial.
6
side, and faces a person in dark shirt. Between 6:20 and 6:23 the
highlighted person runs to the middle of the aisle between pool
tables holding the gun with two hands close to the middle of his
abdomen, with one hand on the top, and then runs away.
At the hearing, over defense objection, defendant identified
the interior of the pool hall at about two minutes into the video
and testified it appeared to be the area where the incident took
place. At four minutes, 36 seconds, defendant identified himself
wearing a white T-shirt and blue jeans, holding a pool stick and
testified the video showed what happened that night. The parties
stipulated that the highlighted person in the video was not
defendant.
On cross-examination defendant denied he had seen
anyone holding a gun or that he knew who had fired it at the
time he heard a gunshot. Defendant testified he had been in the
bathroom when the fight broke out and came out to see two
people attacking his cousin, but did not know how it started. His
cousin was not the shooter, and defendant did not know who was.
On redirect examination, defendant ultimately
acknowledged he told the parole board he was gang-affiliated,
explaining he was referring to his gang affiliation while he was in
prison.
Defendant later explained that when he spoke of his family
life to the parole board he was explaining the time before prison
when he associated with his cousin and others, some of whom he
knew were gang members and some he did not know were gang
members. It was in prison that defendant formally became a
member of a gang.
7
Defense evidence
Dr. Francesca Lehman, a clinical and forensic psychologist,
and an expert in child and adolescent development and the
impact of trauma over their lifespan, testified that defendant was
17 years old at the time of the shooting, at a stage of adolescence
when an adolescent’s ability to appreciate risks and consequences
are not fully developed, which is “particularly important to
consider when it’s a heated situation, what is sometimes called a
hot cognition, a time when emotions are high.” Dr. Lehman
explained research has demonstrated that this phenomenon is
enhanced in the presence of peers causing adolescents to act more
on impulse and emotion and unable to weigh the risk and
benefits of their behavior, adding stress and trauma can further
impact the development process. Dr. Lehman identified a
number of increased risk factors for slower brain development in
defendant’s records, including exposure to domestic violence,
parental separation, and drug abuse.
The ruling
After hearing the testimony and counsel’s arguments, the
trial court denied the petition. The court explained it found
defendant’s no contest plea, and particularly defendant’s
agreement to the factual basis, to be an admission to having been
an aider and abettor to murder.
The trial court did not believe any of defendant’s testimony
or statements made to the investigating officer as recounted in
the grand jury hearing and suggested that it was unnecessary for
defendant to have known the perpetrator intended to shoot the
victim.
The court concluded: “I find based upon the totality of the
evidence I have before me, including the grand jury transcript
8
and the plea transcript, which nobody addressed, that the People
have proved beyond a reasonable doubt that the petitioner in this
matter is guilty of aiding and abetting implied malice murder.”
Defendant filed a timely notice of appeal from the order
denying the petition.
DISCUSSION
I. Grand jury transcript
The trial court based some of its factual findings on the
transcript of the grand jury proceedings. Defendant contends the
trial court erred in considering the grand jury transcript as it was
not admissible evidence under the provisions of section 1172.6,
subdivision (d)(3). The People concede the trial court erred in
admitting the grand jury testimony, resulting in this issue being
no longer in controversy.
Section 1172.6, subdivision (d)(3) identifies what evidence
may be admitted in the hearing.
As relevant here Evidence Code 1291, subdivision (a)
provides that “former testimony is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and:
[¶] . . . [¶] (2) The party against whom the former testimony is
offered was a party to the action or proceeding in which the
testimony was given and had the right and opportunity to cross-
examine the declarant . . . .”
Amicus curiae argues that a grand jury transcript is
admissible under the plain language of section 1172.6,
subdivision (d)(3) to the same extent as a preliminary hearing
transcript. Amicus curiae relies on People v. Davenport (2023) 95
Cal.App.5th 1150 (Davenport), which considered the admissibility
of the petitioner’s preliminary hearing transcript, and People v.
9
Cody (2023) 92 Cal.App.5th 87 (Cody), which considered
testimony from the trial that led to the petitioner’s conviction.
Both cases find a hearsay exception in the language of section
1172.6, subdivision (d)(3) to Evidence Code section 1291,
subdivision (a), which requires showing that a witness is
unavailable before admitting former testimony against a party to
a former proceeding. (Davenport, supra, at p. 1158; Cody, supra,
at pp. 103-104.)
Amicus curiae would have us find an exception in the
language of section 1172.6, subdivision (d)(3) not only to the
witness unavailability prerequisite of Evidence Code section
1291, subdivision (a), but also to the requirement of subdivision
(a)(2) of section 1291 that “[t]he party against whom the former
testimony is offered was a party to the action or proceeding in
which the testimony was given and had the right and opportunity
to cross-examine the declarant . . . .”
Here, defendant was not a party to the grand jury
proceeding. A grand jury proceeding is an investigation. (See
§ 923.) “[T]he grand jury serves as part of the charging process of
criminal procedure, not the adjudicative process that is the
province of the courts or trial jury.” (Cummiskey v. Superior
Court (1992) 3 Cal.4th 1018, 1026.) The person investigated is
not a party but a grand jury “target.” (See, e.g., United States v.
Washington (1977) 431 U.S. 181, 189; People v. Petrilli (2014) 226
Cal.App.4th 814, 823.) And “the person under investigation by a
grand jury has no right to appear or offer evidence.” (People v.
Brown (1999) 75 Cal.App.4th 916, 932.)
Citing People v. Silva (2021) 72 Cal.App.5th 505, 520, and
People v. James (2021) 63 Cal.App.5th 604, 606, amicus curiae
argues that because a section 1172.6 evidentiary hearing is a
10
statutory act of lenity, a petitioner does not enjoy rights under
the Sixth Amendment to the United States Constitution, and
thus does not have a constitutional right to confrontation in a
section 1172.6 evidentiary hearing. Amicus curiae then expands
this argument to conclude that section 1172.6, subdivision (d)(3)
permits the admission of prior testimony given in a proceeding to
which the petitioner was not a party and had no right to cross-
examine witnesses against him.
Amicus curiae cites Davenport, supra, 95 Cal.App.5th at
page 1160 to support its suggestion that a petitioner can always
simply subpoena grand jury witnesses to be examined in the
section 1172.6 hearing. Davenport is an inapt comparison, as it
involved a preliminary hearing, at which the petitioner had at
least the right and opportunity to cross-examine witnesses, and
the complaint rejected there was that cross-examination at
preliminary hearing had not been conducted with the same
“‘motive and interest.’” (Davenport, at p. 1160.) Amicus curiae
has cited no authority directly on the point at issue here, but asks
we address this question anyway, as a matter of first impression
under the Sixth Amendment and the due process clause of the
United States Constitution. “‘“Amicus curiae must accept the
issues made and propositions urged by the appealing parties, and
any additional questions presented in a brief filed by an amicus
curiae will not be considered [citations].”’” (Younger v. State of
California (1982) 137 Cal.App.3d 806, 813-814.) “It is settled
that ‘the duty of this court, as of every other judicial tribunal, is
to decide actual controversies by a judgment which can be carried
into effect, and not to give opinions upon moot questions or
abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.’”
11
(Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132.) “The
rendering of advisory opinions falls within neither the functions
nor the jurisdiction of this court.” (People ex rel. Lynch v.
Superior Court (1970) 1 Cal.3d 910, 912.) Moreover, “‘we do not
reach constitutional questions unless absolutely required to do so
to dispose of the matter before us.’” (Facebook, Inc. v. Superior
Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31.) We thus
decline the request by amicus curiae to carve out a new exception
to Evidence Code section 1291.
II. Aiding and abetting implied malice murder
Defendant contends there was insufficient evidence to
support the trial court’s finding defendant was guilty of implied
malice murder as an aider and abettor. Defendant also contends
the trial court misapprehended what is required to prove aiding
and abetting implied malice murder, as demonstrated by the
court’s holding that “it is sufficient that defendant know he was
aiding in a violent attack.”
Defendant asks that we review the sufficiency of the
evidence to support the elements of aiding and abetting implied
malice through “the lens” of People v. Reyes (2023) 14 Cal.5th 981(Reyes), decided after the evidentiary hearing here, where our
Supreme Court explained, “Murder is committed with implied
malice when ‘the killing is proximately caused by “‘an act, the
natural consequences of which are dangerous to life, which act
was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with
conscious disregard for life.’”’ [Citation.] ‘“To be considered the
proximate cause of the victim’s death, the defendant’s act must
have been a substantial factor contributing to the result, rather
than insignificant or merely theoretical.”’” (Id. at p. 988.)
12
“‘[N]otwithstanding [the] elimination of natural and
probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person knows
that his or her conduct endangers the life of another and acts
with conscious disregard for life.’” (Reyes, supra, 14 Cal.5th at
p. 990, quoting People v. Gentile (2020) 10 Cal.5th 830, 850.)
“ ‘[D]irect aiding and abetting is based on the combined actus
reus of the participants and the aider and abettor’s own mens
rea. [Citation.] In the context of implied malice, the actus reus
required of the perpetrator is the commission of a life-
endangering act. For the direct aider and abettor, the actus reus
includes whatever acts constitute aiding the commission of the
life-endangering act. Thus, to be liable for an implied malice
murder, the direct aider and abettor must, by words or conduct,
aid the commission of the life-endangering act, not the result of
that act. The mens rea, which must be personally harbored by
the direct aider and abettor, is knowledge that the perpetrator
intended to commit the act, intent to aid the perpetrator in the
commission of the act, knowledge that the act is dangerous to
human life, and acting in conscious disregard for human life.’”
(Reyes, supra, at pp. 990-991.)
“Ordinarily, a trial court’s denial of a section 1172.6
petition is reviewed for substantial evidence. [Citation.] Under
this standard, we review the record ‘“‘in the light most favorable
to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’”’
[Citation.] But where there is an issue as to whether the trial
13
court misunderstood the elements of the applicable offense, the
case presents a question of law which we review independently.”
(Reyes, supra, 14 Cal.5th at p. 988.)
The trial court found defendant’s mens rea was sufficient
for implied malice so long as defendant knew he was aiding a
violent attack and intended to help the perpetrators by stopping
the victim from escaping or defending himself. The court found a
sufficient physical act in the factual basis admitted by defendant,
“that he was involved in, an assault that resulted in the death,”
as well as in the plea itself. The court did not elaborate. We note
that in defendant’s plea of no contest to committing an assault
likely to cause great bodily injury in violation of section 245,
former subdivision (a)(1), he agreed to a factual basis that he was
“involved in an assault that resulted in . . . death.” (Italics
added.) Defendant did not specifically admit to aiding and
abetting an assault with a firearm or assault with a deadly
weapon or instrument as the abstract of judgment erroneously
states.7
The trial court found it sufficient that defendant knew he
was aiding in a violent attack, in part by drawing a comparison to
the facts in People v. Schell (2022) 84 Cal.App.5th 437 (Schell).
The trial court claimed that Schell “held the defendant need not
7 At the time of defendant’s plea, section 245, former
subdivision (a)(1) read, “Any person who commits an assault
upon the person of another with a deadly weapon or instrument
other than a firearm or by any means of force likely to produce
great bodily injury shall be punished by imprisonment . . . .”
(Stats. 2004, ch. 494, § 1, italics added.) Now, assault by means
of force likely to produce great bodily injury is found in
subdivision (a)(4), separate from assault with a deadly weapon
other than a firearm, which remains in subdivision (a)(1).
14
know that someone would strike the victim with a shovel on the
back [to] be liable under an implied malice theory.” In Schell, the
defendant was one of at least eight gang members motivated by
perceived disrespect who attacked a lone victim and beat him to
death. (Id. at p. 440.) There, the defendant used his fists and
feet, one cohort used a baseball bat, another used a shovel, and
one of them stabbed the victim three times during the beating.
(Ibid.) During the attack, the blows to the head were loud
enough to be heard by neighbors and someone was heard yelling,
“‘Stop it’ and ‘[y]ou’re killing him.’” (Id. at p. 443.) While the
Schell court found the defendant did not need to specifically know
that someone would strike the victim with a shovel in a
particular manner to be liable under an implied malice theory,
the court did not hold it was sufficient to merely know he was
aiding in a violent attack. The Schell court stated: “‘It suffices
that he knew he was aiding in a violent attack, knew dangerous
weapons were being used against [the victim], and intended to
stop [the victim] from escaping or defending himself by helping
the perpetrators to surround and hit him.’” (Schell, supra, 84
Cal.App.5th at p. 443, italics added.)8
8 The People agree with the trial court that Schell’s facts are
comparable because there were five other gang members involved
in the fight at the pool hall, and they claim all of them were
assaulting Briano. We have observed the video and have seen
two groups fighting each other, not five gang members all
assaulting Briano. Here, unlike in Schell, the gun and a pool
stick were initially the sole weapons used. The gun was not
exposed during the fight. It seems to have first been exposed and
used within seconds, not long enough for anyone to say “stop,
you’re killing him” or perhaps even to see it until it was fired.
15
The People argue substantial evidence supports the finding
defendant was guilty of aiding and abetting implied malice
murder, and the facts of Reyes provide an inapt comparison
because the evidence of defendant’s guilt is stronger than the
evidence against the defendant in Reyes. The People agree with
the trial court’s conclusion the factual basis for defendant’s plea,
having been “involved in an assault that resulted in the death of
Alfredo Briano,” was a personal admission of guilt. Noting that
defendant did not contest the fact that he participated in the
fight in which another person shot and killed the victim, the
People conclude the only issue to be proven at the hearing on the
petition was whether the prosecution had proven beyond a
reasonable doubt that defendant had aided and abetted the
shooting with the requisite mens rea. They argue the video of the
incident, which was admitted evidence at the hearing,
established defendant had the requisite mental state, claiming
that simply viewing the video without narration provides
sufficient evidence along with the factual basis. Their analysis,
however, of the video includes their own explanation of the action
without citation to the detective’s narration or any evidence
outside the transcript.
The People’s explanation appears to be the shooter
attempted to fire his weapon twice while defendant
simultaneously approached the victim with the pool stick and
struck the victim twice with the pool stick during both attempts.
In sum, referring to the few seconds during which defendant was
approaching and then, according to the People, simultaneously
hitting the victim as the shooter was firing toward the victim, the
People infer that defendant saw the weapon in the shooter’s
16
hand, saw the victim wounded, and at that moment acquired the
intent to aid and abet the shooting.
It is possible. An aider and abettor can form an intent to
facilitate a crime during its commission. (See People v. Montoya
(1994) 7 Cal.4th 1027, 1039 [“the defendant’s intent to encourage
or facilitate the actions of the perpetrator ‘must be formed prior
to or during “commission” of that offense’”].) In this case
however, it may require a knowledgeable explanation of the
sequence and timing of the events in the video to reasonably
draw such an inference. This raises the question of whether or
not that is possible without the inadmissible grand jury evidence
in light of Reyes.
Without the grand jury evidence, we are left with the
factual basis for defendant’s plea that he was “involved in an
assault that resulted in the death of Alfredo Briano,” but he was
not the shooter, and defendant’s testimony that he participated in
the fight and was seen in the video striking someone with a pool
stick. Thus, the appropriate path is to remand for a new
evidentiary hearing in which the prosecution must prove beyond
a reasonable doubt pursuant to section 1172.6, subdivision (d)(3)
that defendant is guilty of murder under the murder laws as
amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.). (See
Reyes, supra, 14 Cal.5th at p. 992.) We express no view on the
merits of defendant’s resentencing petition based upon
admissible evidence and proper application of the elements of
direct aiding and abetting.
III. Request for transfer to juvenile court
We do not reach defendant’s claim the trial court failed to
consider defendant’s age (17 years) and maturity in deciding
whether the prosecution had met its burden to prove that he
17
could be convicted of implied malice murder under current law.
(See generally, People v. Pittman (2023) 96 Cal.App.5th 400, 416-
418 [youth is a factor relevant to the requisite mental state].)
At the time of the crime defendant was 17 years old and
prosecuted in adult court. Citing People v. Padilla (2022) 13
Cal.5th 152, 166-167, defendant contends that if the order
denying the petition is reversed with directions to grant the
petition due to insufficient evidence, the matter should be
remanded to the juvenile court pursuant to Proposition 57
(approved by voters, Gen. Elec. (Nov. 8, 2016)). Defendant
acknowledges he must first prevail under his section 1172.6
petition to be entitled to a transfer to juvenile court. (See People
v. Ramirez (2021) 71 Cal.App.5th 970, 996-998, 1000.) As we
remand for a new evidentiary hearing, it would be premature to
reach this issue now.
DISPOSITION
The order is reversed, and the matter remanded for a new
evidentiary hearing pursuant to section 1172.6, subdivision (d)(3)
in accordance with the views expressed in this opinion.
___________________________
CHAVEZ, J.
We concur:
_______________________________ ___________________________
ASHMANN-GERST, Acting P. J. HOFFSTADT, J.
18
Filed 10/23/24
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B330062
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA320049)
v.
ORDER CERTIFYING
FILIBERTO OCOBACHI, JR., OPINION FOR PARTIAL
PUBLICATION
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on
September 25, 2024, was not certified for publication in the
Official Reports. For good cause, it now appears that the opinion
* Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of parts II and III of the DISCUSSION.
should be partially published in the Official Reports, and it is so
ordered.
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
2