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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

Plaintiff and Respondent,

v.

ARMANDO OCHOA,

Defendant and Appellant.

 H050143

 (Santa Clara County

 Super. Ct. No. CC818740)

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.) 

3 We omit the facts of the offense as they are not relevant to the analysis and 

disposition of the appeal.
2

(§ 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judgment, the verdict forms, the jury instructions, and this court’s unpublished opinion 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.
3

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 
4

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 
5

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.