P. v. Ochoa

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Filed 10/3/18 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
JUAN FRANCISCO OCHOA,
Defendant and Appellant.
E070319
(Super.Ct.No. INF1700628)
OPINION
APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.
(Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.

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Defendant and appellant Juan Francisco Ochoa was charged by second amended
information with attempted murder (Pen. Code,1 §§ 664/287, subd. (a), count 1), assault
with a deadly weapon (§ 245, subd. (a)(1), count 2), and misdemeanor battery (§ 242,
count 3). As to counts 1 and 2, the amended information alleged that he personally
inflicted great bodily injury. (§§ 12022.7, subd. (a) and 1192.7, subd. (c)(8).) It further
alleged that defendant had one prior serious felony conviction, within the meaning of
section 667, subdivision (a), and sections 667, subdivisions (c) and (e)(1) and 1170.12,
subdivision (c)(1). A jury found defendant guilty of counts 2 and 3, but not guilty of
count 1. The jury also found the great bodily injury enhancement on count 2 to be not
true. Defendant admitted the prior conviction allegations. Prior to sentencing, a trial
court granted defendant’s motion to dismiss the prior strike conviction, pursuant to
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Defendant filed a timely notice of appeal. We affirm.
FACTUAL BACKGROUND
Defendant was employed as a handyman by his nephew (the victim), who owned a
Spanish newspaper. One day, defendant was at work and started cussing out loud. The
victim tried to calm him down, but defendant told him to shut up and leave him alone.
Defendant threw all his tools on the ground, jumped in his car, and “peeled out.” He did
not show up to work the rest of the week, so the victim assumed he did not want to work
1 All further statutory references will be to the Penal Code, unless otherwise
noted.

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there any longer. The victim went to defendant’s house the following weekend to return
the tools.
The next day, defendant drove to the victim’s office. Defendant said some of his
tools were missing, and the victim needed to pay him for them. He looked for them in
the office and started cussing at the victim when he could not find them. Defendant then
asked the victim where his paycheck was. The victim handed him a check. Defendant
reached for the check and then punched the victim on the forehead. The victim pushed
defendant out of the office, and defendant continued punching him. Defendant
threatened to “get [him]” and break the windows on his car and front office. He went to
his van and pulled out a sledge hammer or a pick axe.2 Defendant was enraged at that
point and walked toward the victim and started to swing the tool like a baseball bat. The
victim “rushed him” to try and avoid the swinging motion. However, defendant looked
right at him and swung the tool. It hit the victim the on top of his head, and “a burst of
blood came out.”
The victim put his arms around defendant and tackled him. They both fell to the
ground. The victim got defendant in a headlock, but released him. Defendant said it was
not over, started yelling, and took off in his van.
A short time later, the police responded. The victim participated in an in-field
identification and then went to urgent care. He received seven stitches in his head.
2 At trial, the victim said he was not sure what the tool was called.

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Defendant testified on his own behalf at trial and said he was angry with the
victim and got a pick axe. He said he threatened to do something to the victim’s car, but
would never swing the pick axe at him.
ANALYSIS
After the notice of appeal was filed, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the
case, and identifying no potential arguable issues.
Defendant was offered an opportunity to file a personal supplemental brief, which
he has not done.
Under People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent
review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.

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