P. v. Ochoa







Filed 11/16/10 P. v. Ochoa CA4/2






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO OCHOA, Defendant and Appellant.

E051020 (Super.Ct.No. RIF129069) OPINION

APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed with directions.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
In a previous appeal from the judgment of conviction in the instant case, we reversed the jury's true findings on gang enhancement allegations attached to two counts, for lack of substantial evidence, and struck the imposition of sentence on four prior prison terms, for which no finding was rendered. (People v. Ochoa (2009) 179 Cal.App.4th 650 (maj. opn.).) The trial court originally imposed a determinate sentence of 10 years followed by an indeterminate term of life with a minimum parole eligibility date of 15 years. On remand, another judge imposed a determinate, aggregate prison sentence of 19 years 8 months.
In this appeal, defendant Guillermo Ochoa contends the sentencing court abused its discretion by imposing the upper term on one count upon which the prior court had imposed the midterm, and by imposing consecutive terms on another count upon which the prior court had imposed a concurrent term. Defendant additionally argues that the abstract of judgment must be amended to delete all references to the gang and prior prison term enhancements. The People concede the latter issue. We shall direct the trial court to make the requested corrections to the abstract of judgment. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND^[1]
On November 7, 2005, around 9:15 p.m., the victim sat in the passenger seat of his mother's black Ford Ranger as she parked at a fast-food restaurant in Moreno Valley. The victim waited in the vehicle with the window partially rolled down while his mother went inside the restaurant. A compact car pulled into the parking lot approximately 14 to 15 feet away. Defendant got out of the car and approached the victim.
Defendant pulled a shotgun out of his jacket, pointed it at the victim's face, and asked the victim for his money; the victim showed defendant his wallet and told defendant he did not have any. Defendant loaded the shotgun and told the victim to give him the vehicle. The victim exited the vehicle and ran inside the restaurant. Defendant got into the vehicle and drove away.
A jury convicted defendant of carjacking (count 1--Pen. Code, § 215, subd. (a)),^[2] attempted robbery (count 2--§§ 664, 211), felon in possession of a firearm (count 3--§ 12021, subd. (a)(1)), and active participation in a criminal street gang (count 4--§ 186.22, subd. (a)). The jury hung on the section 186.22, subdivision (b), gang enhancement allegations attached to counts 1 through 3, but found true personal use of a firearm enhancements attached to counts 1 and 2. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).) After a second trial on the gang enhancements, another jury found the allegations attached to counts 1 and 3 true, but found the enhancement attached to count 2 not true.
On May 9, 2008, the trial court sentenced defendant to a 10-year determinate term of incarceration followed by life with a minimum parole eligibility date of 15 years; the sentence was composed of the following: On count 1, the court sentenced defendant to life with the possibility of parole and a consecutive 10 years on the attached personal use enhancement; on count 2, the court imposed a concurrent term of 12 years consisting of the midterm of two years plus a consecutive 10 years on the personal use enhancement; on count 3, the court sentenced defendant to a five-year concurrent term consisting of the midterm of two years on the substantive offense with a consecutive three-year term on the attached gang enhancement; on count 4, the court imposed the midterm of two years concurrently; the four section 667.5, subdivision (b), prior prison term enhancements alleged in the information were never tried nor was any finding on them ever rendered; nevertheless, the court imposed concurrent, one-year sentences on each of them.
On May 14, 2010, on remand, another judge imposed an aggregate, determinate prison sentence of 19 years 8 months consisting of the following: the upper term of nine years on count 1 (carjacking); a 10-year consecutive term for the section 12021, subdivision (a)(1) offense attached to count one (personal use of a firearm); the upper term of three years concurrent on count 2 (attempted robbery), stayed pursuant to section 654; a consecutive term of one-third the midterm, or eight months, on count 3 (felon in possession of a firearm); and the midterm of two years on count 4 (active participant in a criminal street gang), stayed pursuant to section 654.
DISCUSSION
A. SENTENCING DISCRETION
Defendant contends the sentencing court essentially abused its discretion in imposing a different sentence than that of the previous sentencing court, i.e., in imposing the upper term on count 2 and a consecutive term on count 3. Defendant maintains that because the latter sentencing court did not preside over the trial and had not reviewed the probation report prior to sentencing, it was unable to effectively exercise any discretion it had. Moreover, defendant argues that the initial sentencing court's determinations on imposing the midterm on count 2 and a concurrent term on count 3 were presumptively correct. We hold that the latter sentencing court acted within its discretion.
Sentencing decisions are reviewed for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) Defendants bear a heavy burden when attempting to show an abuse of discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) â€