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. B 264450
(Los Angeles County Super. Ct. No. B A 413280 )

APPEAL from the judgment of the Superio r 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.
Kam ala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb, and
Nima Razfar
, Deputy Attorney s General, for Plaintiff and Respondent.

______2

A jury found a ppellant B rayan Ochoa guilty of premeditated and deliberate attempted murder ( c ount 1) and attempted extortion ( c ount 2). Appellant argues that the
evidence was insufficient to establish that he committed attempted extortion against the only victim identified in th e information , and, in the alternative, that under Penal Code section 654, 1 the court erred in imposing consecutive sentences on the attempted

exto rtion and attempted murder conviction s

. We reverse the judgment of conviction on

count 2 and affirm the judg ment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND In the summer of 2013, Me n deleyevic Martinez Santiago and Gabino Martinez worked at a food truck parked on a street in Hollywood. Santiago worked inside the
truck while Ma rtinez worked outside the truck
, operating a grill and broiler.
At aroun d 3:00 a.m. on July 6, 2013, while Santiago helped customers, appellant and a companion approached the food truck and knocked o n the back door

. When Santiago opened a small window in the door, appellan t told Santiago that the food truck “belonged” to the Mara Sa l vatrucha street gang and that he was there to collect the
“rent” from the truck owed to the gang

. 2 Sant iago informed appellant that he did not know anyt hing about the “rent,” and told him to co me back the next day to speak to the

own er. 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 abou t 15 feet, Martinez saw appellant talk to Santiago, but he
did not hear their conversation
, nor did he know what they discussed. Martinez observed appella nt walk away from the truck. 3 Neither Martinez nor Santiago saw appellant with

a weapon at that tim e

.

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

2 “Rent” is a protection fee that gangs coll ec t from businesses that operate in the gang’s territory.

3 Martinez testified that about a month earlier appellan t approached him while he was working at the grill outside the food truck. Appellant told Martinez that he had come3

Approxi mately five minutes after appellant ’s conver sation 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 po inted 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, 1 87, subd. (a)) of Martinez (count 1) a nd 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 cou rt 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 wha t appellant was talking about, he told appellant to speak to the cashier in the truck. Then, when appellant approached the truck, Santiago to ld appellant to return the next day to talk to the owner.

4 Another em ployee 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 app ellant 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 T he cour t 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 f or the remaining enhancements.4 DISCUSSION Sufficient Evidence Does Not Support Appellant’s Convicti on 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 eviden ce claim, the reviewing court ’ s role is a
limit ed 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 reasonabl e 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 o f 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 t o 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 i s 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 specifica lly 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 appell ant made to Santiago

. T he 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 victim5

of the crime appellant committed in carrying out the threat

— the att empted 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 unders tand what appel lant was seeking , and appellant did not threaten Martinez at that time

. Thus, there was no evidence pr esented at trial from which the jury could find that appellant attempted to extort money or property
from Martinez

. The Attorney General asserts that su fficient evidence supports the att empted
extortion conviction based on the theory that the food t ruck 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]

. ” T he 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 b ecause 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 rai sed by that charge, if desired, are amo ng 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 there by demonstrates
the prosecution’ s intent to prove all the elements .’ ” ( People v. Anderson (2006)
141 Ca l.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 reasonin g 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, i f the prosecutor intended to proceed on the theory that the food truck business was the target of the extortion, then the prosecutor s hould have amended the information during the trial to allege that appellant had attempted to extort f rom the
owner of the business. “ The court in which an action is pending m ay order or permit an amendment of an indictment, accusation or informati on, or the filing of an amended complaint, for a ny 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 a nd including the close of trial ”].) During
the tria l, t he 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 , nonethel ess, 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 .)
R eversal 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 punishment s for the same act or omissio n. Because

we reverse appellant’s convictio n on count 2 , we need not address his challenge to his consecutive sentences.7 DISPOSITION
T he judgment of conviction on count 2 , attempted extortion, is reversed. In all other respects, the judgment is affirmed. The trial co urt shall amend the abstract of judgment accordingly, and forward the amended abstract to the California Department
of Co rrections and Rehabilitation.
CERTIFIED FOR PUBLICATION

.

ROTHSCHILD, P. J. We concur:

CHANEY, J.

LUI, J.