People v. Ochoa

53 Cal.App.5th 841

267 Cal.Rptr.3d 824

The PEOPLE, Plaintiff and Respondent,

v.Alberto OCHOA, Defendant and Appellant.

B297183

Court of Appeal, Second District, Division 7, California.

Filed August 18, 2020

Eric R. Larson, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Zee Rodriguez and Nathan Guttman, Deputy Attorneys General, for Plaintiff and Respondent.

PERLUSS, P. J.

In Miller v. Alabama (2012) 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 ( Miller ) the United States Supreme Court held that mandatory sentencing schemes imposing prison terms of life without parole on juvenile offenders violate the Eighth Amendment because they fail to consider youth-related mitigating factors that may diminish a juvenile's culpability and suggest a capacity for reform.

Applying the principles of Miller in People v. Gutierrez (2014) 58 Cal.4th 1354, 1361, 171 Cal.Rptr.3d 421, 324 P.3d 245 ( Gutierrez ), the California Supreme Court held Penal Code section 190.5, subdivision (b),¹ which prescribes a sentence of life without parole or a term of 25 years to life for a 16- or 17-year-old defendant found guilty of special circumstances murder, "authorizes, and indeed requires" consideration of the youth-related mitigating factors identified in Miller before imposing life without parole on a juvenile homicide offender: "Under section 190.5(b), a sentencing court must consider the aggravating and mitigating factors enumerated in Penal Code section 190.3 and the California Rules of Court. [Citation.]

Section 190.5(b) does not expressly direct the sentencing court to consider those factors, but ‘since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial." ’ " ( Gutierrez , at p. 1387, 171 Cal.Rptr.3d 421, 324 P.3d 245.)

Legislation initially enacted shortly before the decision in Gutierrez now provides for youth offender parole hearings at statutorily prescribed points, including with the passage of Senate Bill No. 394 (2017-2018 Reg. Sess.) for youth offenders sentenced to life without parole, effectively mooting Eighth Amendment challenges to sentences of life without parole or the functional equivalent of life without parole. (See People v. Franklin (2016) 63 Cal.4th 261, 202 Cal.Rptr.3d 496, 370 P.3d 1053.) Section 190.3 requiring the sentencing court to consider the aggravating and mitigating factors detailed in Gutierrez before imposing the harsher sentence on a youth offender under section 190.5, subdivision (b), however, remains in place and unchanged.

Here, Albert Ochoa, sentenced to life without parole for the murder of Xinran Ji during an attempted robbery committed when Ochoa was 17 years old, contends the trial court abused its discretion by failing to heed Gutierrez and consider youth-related mitigating factors at sentencing. Because the record does not indicate the trial court considered those factors before imposing life without parole and we cannot presume the court understood its duty to do so notwithstanding the then-recent passage of Senate Bill No. 394, we agree and remand the matter for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Amended Information

An amended information filed May 15, 2015 charged Ochoa with murder (§ 187), second degree robbery of Claudia Rocha (§ 211), attempted second degree robbery of Jesus Ontiveros (§§ 664, 211) and assault with a deadly weapon on Ontiveros (§ 245, subd. (a)(1)). The information specially alleged Ochoa had committed the murder during an attempted robbery (§ 190.2, subd. (a)(17)); had personally used a deadly or dangerous weapon, a baseball bat, during the commission of the murder of Ji, robbery of Rocha and attempted robbery of Ontiveros (§ 12022, subd. (b)(1)); and had inflicted great bodily injury on Ontiveros during the aggravated assault (§ 12022.7, subd. (a)). Ochoa pleaded not guilty and denied the special allegations.

2. Remand for a Transfer Hearing in Juvenile Court, and Return of the Matter to Adult Criminal Court

Prior to trial Ochoa successfully moved, without objection, to remand his case to juvenile court for a hearing pursuant to then-newly adopted Proposition 57, the Public Safety and Rehabilitation Act of 2016, which repealed prior statutory provisions that had permitted direct filing in adult criminal court of certain cases involving juveniles. Following a hearing, the juvenile court found Ochoa's case should not be retained in juvenile court and transferred the matter back to adult criminal court.

3. The Trial

According to the evidence presented at trial, Ochoa, along with his companions Andrew Garcia, Alejandra Guerrero and Jonathan Del Carmen, decided to go "flocking," a term Ochoa explained to police meant "robbing someone." They found Ji, a 24-year-old USC graduate student, walking home to his apartment from a They found Ji, a 24-year-old USC graduate student, walking home to his apartment from a study session just after midnight. study session just after midnight. In a particularly brutal attack, Ochoa and Garcia beat Ji with a metal baseball bat when Ji refused to relinquish his backpack. Guerrero hit Ji with a wrench. The beating crushed Ji's skull. After his attackers left, Ji, bloodied and severely injured, managed to return to his apartment, where he died a short time later. The attack was captured on surveillance cameras, and the footage was played for the jury.

After the attack on Ji, Ochoa and his companions drove to the beach, where they encountered Rocha and Ontiveros and demanded the couple's possessions. Rocha complied. Ontiveros stepped in front of Rocha to protect her. After Ontiveros lost his footing and fell to the ground, Ochoa swung the baseball bat at Ontiveros's head. Ontiveros blocked the blow with his arm. Ontiveros managed to escape his attackers and flag down police officers on patrol. Ochoa and his companions initially chased Ontiveros but fled the scene when they saw him talking to the police. They were arrested a short time later.

4. The Verdict and Sentence

The jury found Ochoa guilty on all counts. It specifically found Ochoa was "the actual killer" of Ji and found true all special allegations relating to the murder charge. The jury received no instructions, and made no findings, as to the special allegations relating to the other counts.

At sentencing the court stated, "with regard to count 1, murder in the first degree, coupled with the special circumstance alleged under [section] 190.2(a)(17), the defendant shall receive the term of life without the possibility of parole, plus one year for use of a deadly weapon pursuant to Penal Code section 12022(b)(1)." Neither the People nor Ochoa addressed in sentencing memoranda or at the hearing the court's discretion to impose a term of 25 years to life pursuant to section 190.5, subdivision (b) ; and the court did not explicitly address that alternative or any youth-related mitigating factors when imposing life without parole.

As to the robbery and aggravated assault counts, the court imposed consecutive terms of three years for the robbery of Rocha, eight months for the attempted robbery of Ontiveros and one year for the assault with a deadly weapon on Ontiveros. In selecting consecutive sentences, the court expressly found the crimes involved great violence, great bodily injury or the threat of great bodily injury, a high degree of cruelty and particularly vulnerable victims.²

Following imposition of sentence the court acknowledged, "[d]ue to [Ochoa's] age at the time of the commission of the charges herein, he is entitled to a hearing for the limited purpose of affording him the opportunity to make a record of youth-related mitigating factors for the parole board's future consideration under the dictates of People v. Franklin , [supra ,] 63 Cal.4th 261 [202 Cal.Rptr.3d 496, 370 P.3d 1053]. The court has also considered the consequences and the applicability of Penal Code section 3051 and Senate Bill 394 regarding juveniles receiving a life without the possibility of parole sentencing term. All counsel have stipulated to the submission of a documentary packet addressing the youth-related mitigating factors addressed in the defendant's juvenile proceeding related to this case to be considered by a parole board at the defendant's future youth offender parole hearing. This documentary packet shall be jointly submitted by all counsel to serve as a record addressing the youth-related factors in lieu of a hearing for the parole board's future consideration under Franklin . "³

DISCUSSION

1. Life-without-parole Sentencing for Youth Offenders

In Graham v. Florida (2010) 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 ( Graham ) the United States Supreme Court, emphasizing a juvenile offender's "capacity for change and limited moral culpability," held it violated the Eighth Amendment's prohibition of cruel and unusual punishment to impose life without parole on a juvenile offender who had not committed homicide. Two years later in Miller , supra , 567 U.S. at pages 477 to 478, 132 S.Ct. 2455, the Supreme Court extended the reasoning of Graham to hold it also violated the Eighth Amendment to impose a mandatory life without parole sentence on a juvenile convicted of murder because that mandatory penalty "precludes consideration of [the juvenile's] chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the...