People v. Ochoa CA6

Filed 6/30/23 P. v. Ochoa CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H050143
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CC818740)
v.
ARMANDO OCHOA,
Defendant and Appellant.
THE COURT1
Defendant Armando Ochoa appeals from an order denying his petition for
resentencing under former Penal Code section 1170.95.2 For the reasons set forth below,
we affirm the order.
I. PROCEDURAL BACKGROUND
Ochoa was convicted by jury in 2013 of two counts of second degree murder
(§ 187) and one count of assault with a deadly weapon (§ 245, subd. (a)(1)). 3 The jury
also found true as to each murder count the allegation that Ochoa used a deadly weapon
(automobile) in the commission of the offense. (§ 12022, subd. (b)(1).) As to the assault
conviction, the jury found true the allegation that he inflicted great bodily injury.
1
Before Grover, J., Greenwood, P.J., and Bromberg, J.
2
Undesignated statutory references are to the Penal Code. Effective June 30,
2022, section 1170.95 was renumbered section 1172.6, with no changes to the text.
(Stats. 2022, ch. 58, § 10.)
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We omit the facts of the offense as they are not relevant to the analysis and
disposition of the appeal.
(§ 12022.7, subd. (c).) The trial court sentenced Ochoa to a term of 30 years to life
consecutive to a determinate term of 11 years. This court affirmed Ochoa’s conviction
and sentence on direct appeal. (People v. Ochoa (July 31, 2015, H039529) [nonpub.
opn.].)
On May 21, 2019, Ochoa petitioned for resentencing under former
section 1170.95. Ochoa later filed a request to withdraw the petition, which the trial
court granted on July 24, 2019. Ochoa filed another petition for resentencing under
former section 1170.95 on May 9, 2022. The trial court granted the prosecution’s request
for judicial notice of records from his underlying case, including the abstract of
judgment, the verdict forms, the jury instructions, and this court’s unpublished opinion
affirming the conviction and sentence. Counsel for Ochoa did not file a responsive
pleading, submitting the matter for decision on the initial petition and the record of
conviction.
The trial court ruled that Ochoa was not entitled to relief as a matter of law, and it
declined to issue an order to show cause. The order denying relief pointed to the record
on appeal, which showed that “[a]t trial, the prosecutor proceeded on two theories of
malice aforethought, express malice and implied malice, with respect to the two murder
charges,” and that Ochoa, who testified at trial, relied on a defense of unconsciousness.
The court also stated that the jury instructions demonstrated Ochoa’s ineligibility for
resentencing because there was no instruction given on the natural and probable
consequences doctrine. The trial court concluded that the appellate record, together with
the jury instructions, demonstrated Ochoa was not convicted under either felony murder
or the natural and probable consequences doctrine, Ochoa was the actual killer, “and/or a
jury necessarily found malice personal to [Ochoa].”
After a timely notice of appeal, counsel filed an opening brief pursuant to People
v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). Ochoa filed supplemental briefs on
January 3, 2023, January 5, 2023, and February 16, 2023.
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II. DISCUSSION
In his supplemental briefs, Ochoa argues that: (1) this court should consider that at
the time of his crime he was impaired by a neurological condition; (2) the trial court erred
in refusing to instruct the jury on involuntary manslaughter as a lesser-included offense
on the murder charges; and (3) his trial counsel was ineffective for failing to request an
instruction on involuntary manslaughter. He does not raise an arguable issue in this
appeal. An issue is arguable if it has a reasonable potential for success, and, if resolved
favorably for the appellant, the result will either be a reversal or a modification of the
judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) amended
sections 188 and 189, which pertain to the definition of malice and the degrees of murder.
(Stats. 2018, ch. 1015, §§ 2–3.) As amended, section 188 provides: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).)
The changes to the law were enacted to “amend the felony murder rule and the natural
and probable consequences doctrine, … 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 of the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 also added former section 1170.95, “which permits a person
with an existing conviction for felony murder or murder under the natural and probable
consequences doctrine to petition the sentencing court to have the murder conviction
vacated and to be resentenced on any remaining counts if he or she could not have been
convicted of murder as a result of the other legislative changes implemented by Senate
Bill No. 1437.” (People v. Flores (2020) 44 Cal.App.5th 985, 992.) “If the petitioner
makes a prima facie showing of entitlement to relief, the court must issue an order to
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show cause and, absent a waiver and stipulation by the parties, hold a hearing to
determine whether to vacate the murder conviction, recall the sentence, and resentence
the petitioner.” (Id. at p. 992.)
During its prima facie review, a trial court “may look at the record of
conviction … to determine whether a petitioner has made a prima facie” showing.
(People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).) However, the prima facie inquiry
under section 1172.6, subdivision (c) is “limited.” (Lewis, at p. 971.) The court
“ ‘ “takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved.” ’ ” (Ibid.) “ ‘[A] court should not reject the petitioner’s factual allegations
on credibility grounds without first conducting an evidentiary hearing.’ [Citation.]
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Ibid.) Although the court may rely on the
record of conviction (including any appellate opinion) in determining whether the
petitioner has made a prima facie showing, “ ‘an appellate opinion might not supply all
answers,’ ” and the court “should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ ” (Id. at p. 972.)
Ochoa does not dispute the trial court’s conclusion that he was not entitled to
resentencing relief under section 1172.6. Instead, the three arguments he makes all relate
to the absence of an instruction on involuntary manslaughter at his trial. This court
affirmed Ochoa’s judgment of conviction in 2015, and the judgment is long final.
Therefore, Ochoa’s contentions of error regarding his mental condition at the time of the
offense, the court’s refusal to instruct on involuntary manslaughter, and ineffectiveness of
trial counsel are not arguable issues in this appeal from the order denying his
resentencing petition pursuant to section 1172.6. As Ochoa raises no arguable issue in
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his supplemental briefs, we must affirm the order denying his section 1172.6 petition.
(Serrano, supra, 211 Cal.App.4th at pp. 503–504.)
III. DISPOSITION
The order denying the resentencing petition is affirmed.
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