Filed 8/31/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRAYAN OCHOA,

Defendant and Appellant.

 B264450

 (Los Angeles County

 Super. Ct. No. BA413280)

APPEAL from the judgment of the Superior Court of Los Angeles County, Craig 

Richman, Judge. Reversed in part.

______

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb, and 

Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

______
2

A jury found appellant Brayan Ochoa guilty of premeditated and deliberate 

attempted murder (count 1) and attempted extortion (count 2). Appellant argues that the 

evidence was insufficient to establish that he committed attempted extortion against the 

only victim identified in the information, and, in the alternative, that under Penal Code 

section 654,1 the court erred in imposing consecutive sentences on the attempted 

extortion and attempted murder convictions. We reverse the judgment of conviction on 

count 2 and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

In the summer of 2013, Mendeleyevic Martinez Santiago and Gabino Martinez 

worked at a food truck parked on a street in Hollywood. Santiago worked inside the 

truck while Martinez worked outside the truck, operating a grill and broiler. 

At around 3:00 a.m. on July 6, 2013, while Santiago helped customers, 

appellant and a companion approached the food truck and knocked on the back door. 

When Santiago opened a small window in the door, appellant told Santiago that the food 

truck “belonged” to the Mara Salvatrucha street gang and that he was there to collect the 

“rent” from the truck owed to the gang.

2 Santiago informed appellant that he did not 

know anything about the “rent,” and told him to come back the next day to speak to the 

owner. Appellant responded that he would have “to collect” the money “his way” and 

then he walked away.

At the time appellant approached the truck, Martinez stood outside cleaning the 

broiler. From a distance of about 15 feet, Martinez saw appellant talk to Santiago, but he 

did not hear their conversation, nor did he know what they discussed. Martinez observed 

appellant walk away from the truck. 3 Neither Martinez nor Santiago saw appellant with 

a weapon at that time.

 

1 All statutory references are to the Penal Code unless otherwise indicated. 

2 “Rent” is a protection fee that gangs collect from businesses that operate in the 

gang’s territory.

3 Martinez testified that about a month earlier appellant approached him while he 

was working at the grill outside the food truck. Appellant told Martinez that he had come 
3

Approximately five minutes after appellant’s conversation with Santiago, he

returned to the food truck. Martinez had his back turned and did not see appellant 

approach. Appellant tapped him on the shoulder. When Martinez turned around, 

appellant pointed a gun at him and, without speaking a word to Martinez, shot him in the 

face. Appellant fled on foot.4 Martinez survived and later identified appellant as his 

assailant.

An information charged appellant with attempted premeditated murder 

(§§ 664, 187, subd. (a)) of Martinez (count 1) and attempted extortion (§§ 664, 524) 

of Martinez (count 2). The information further alleged firearm, gang, and great bodily 

injury enhancements for both counts. During the trial at the end of the prosecution’s 

case, appellant moved the court to dismiss the charges based on insufficient evidence. 

The court denied the motion. The jury convicted appellant of both counts and found the 

special allegations to be true. The trial court sentenced appellant to a total prison term of 

52 years to life, consisting of an indeterminate term of 40 years to life (count 1) and a 

consecutive determinate term of 12 years (count 2).

5

Appellant filed a timely appeal.

 

to “collect the rent.” Because Martinez did not understand what appellant was talking 

about, he told appellant to speak to the cashier in the truck. Then, when appellant 

approached the truck, Santiago told appellant to return the next day to talk to the owner.

4 Another employee of the food truck, Rigoberto Martinez, was cleaning the 

eating area outside the truck when the shooting occurred. To distinguish him from 

Gabino Martinez, we refer to Rigoberto Martinez by his first name, intending no 

disrespect. Rigoberto saw appellant speak to Santiago at the door of the food truck, 

but Rigoberto was too far from the truck to overhear the conversation. Rigoberto also 

witnessed appellant approach Martinez from behind, attract his attention and shoot him in 

the face.

5 The court imposed life with a minimum parole eligibility term of 15 years 

pursuant to the gang enhancement (§ 186.22, subd. (b)(5)), plus 25 years to life for 

the firearm enhancement (§ 12022.53, subd. (d)) on count 1, and a consecutive 

determinate term consisting of the two-year middle term, plus a 10-year term for 

the gang enhancement on count 2. The court stayed sentences for the remaining 

enhancements.
4

DISCUSSION

Sufficient Evidence Does Not Support Appellant’s Conviction Of Attempted 

Extortion from Martinez.

Appellant contends that the evidence does not show he tried to extort any property 

or money from Martinez, the only victim identified in count 2 of the information. We 

agree. “In reviewing a sufficiency of evidence claim, the reviewing court’s role is a 

limited one. ‘ “The proper test for determining a claim of insufficiency of evidence in a 

criminal case is whether, on the entire record, a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the 

evidence in the light most favorable to the People and must presume in support of the 

judgment the existence of every fact the trier could reasonably deduce from the 

evidence.” ’ ” (People v. Smith (2005) 37 Cal.4th 733, 738-739.)

“Extortion is the obtaining of property from another, with his consent. . . , induced 

by a wrongful use of force or fear.” (§ 518.) Section 524 provides that attempted 

extortion is committed when a person attempts “by means of any threat . . . to extort 

money or other property from another.” “Fear, such as will constitute extortion, may be 

induced by a threat . . . [¶] . . . [t]o do an unlawful injury to the person or property of 

the individual threatened.” (§ 519; id. subd. (1).) “The elements of the crime of 

attempted extortion are (1) a specific intent to commit extortion and (2) a direct 

ineffectual act done towards its commission.” (People v. Sales (2004) 116 Cal.App.4th 

741, 749.) By definition, therefore, if there is no attempt to compel the victim to consent 

to give up money or property, there can be no attempted extortion. 

Here, there was no evidence that appellant specifically intended to extort anything 

from Martinez. Appellant approached Martinez from behind, tapped him on the 

shoulder, and when Martinez turned around, appellant shot him in the face. No words 

were exchanged between the men before the shooting, and there is no evidence that 

Martinez was aware of the demand for rent or the implied threat appellant made to 

Santiago. The fact that appellant carried out his threat to Santiago by shooting Martinez

does not make Martinez the victim of attempted extortion—it makes Martinez the victim 
5

of the crime appellant committed in carrying out the threat—the attempted murder

alleged in count 1. Likewise, that appellant had approached Martinez at the food truck 

the month before, stating that he had come to “collect the rent,” does not support the 

attempted extortion charge. Martinez did not understand what appellant was seeking, and 

appellant did not threaten Martinez at that time. Thus, there was no evidence presented at 

trial from which the jury could find that appellant attempted to extort money or property 

from Martinez.

The Attorney General asserts that sufficient evidence supports the attempted 

extortion conviction based on the theory that the food truck business was the victim of 

the extortion and that appellant intended to extort money from the “business via its 

employees, i.e., Santiago and [Martinez].” The information, however, did not identify 

the business (nor its owner) as a victim of attempted extortion. Instead, the information

identified Martinez as the only victim. And because the information misidentified the 

victim of the attempted extortion, it failed to provide appellant with legally sufficient 

notice of the charge against him. “ ‘No principle of procedural due process is more 

clearly established than that notice of the specific charge, and a chance to be heard in a 

trial of the issues raised by that charge, if desired, are among the constitutional rights 

of every accused in a criminal proceeding in all courts, state or federal.’ ” (People v. 

Thomas (1987) 43 Cal.3d 818, 823.) “[T]he role of the accusatory pleading is to provide 

notice to the defendant of the charges that he or she can anticipate being proved at trial.

‘When an accusatory pleading alleges a particular offense, it thereby demonstrates 

the prosecution’s intent to prove all the elements.’ ” (People v. Anderson (2006) 

141 Cal.App.4th 430, 445.) Moreover, “ ‘[i]t is fundamental that “[w]hen a defendant 

pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither 

charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests 

upon a constitutional basis: ‘Due process of law requires that an accused be advised of 

the charges against him in order that he may have a reasonable opportunity to prepare and 

present his defense and not be taken by surprise by evidence offered at his trial.’ ” ’ ” 

(People v. Parks (2004) 118 Cal.App.4th 1, 5-6.) 
6

Here, if the prosecutor intended to proceed on the theory that the food truck 

business was the target of the extortion, then the prosecutor should have amended the 

information during the trial to allege that appellant had attempted to extort from the 

owner of the business. “The court in which an action is pending may order or permit an 

amendment of an indictment, accusation or information, or the filing of an amended 

complaint, for any defect or insufficiency, at any stage of the proceedings.” (See § 1009; 

People v. Graff (2009) 170 Cal.App.4th 345, 361 [amendment to the information can 

occur “at any stage of the proceeding, up to and including the close of trial”].) During 

the trial, the parties discussed the sufficiency of the evidence supporting the charges and 

enhancements in connection with appellant’s motion to dismiss and thus the prosecutor 

was aware of the deficiency of the charges during the trial. The prosecutor, nonetheless, 

failed to amend the information. And this court has no authority to order the amendment 

of the information on appeal. (People v. Hamernik (2016) 1 Cal.App.5th 412, 425.) 

Reversal of the judgment of conviction on count 2 is required.

6

 

6 Appellant also argues that his consecutive sentences violated section 654’s

prohibition against multiple punishments for the same act or omission. Because 

we reverse appellant’s conviction on count 2, we need not address his challenge to his 

consecutive sentences.
7

DISPOSITION

The judgment of conviction on count 2, attempted extortion, is reversed. In all 

other respects, the judgment is affirmed. The trial court shall amend the abstract of 

judgment accordingly, and forward the amended abstract to the California Department 

of Corrections and Rehabilitation.

CERTIFIED FOR PUBLICATION.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

LUI, J.