P. v. Ochoa

Filed 4/24/06 P. v. Ochoa CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977 .

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Mark Ashton Cope, Judge. Affirmed.

Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising

Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.

1. Introduction

A jury found Frank Javier Ochoa, Jr. guilty of the deliberate and premeditated murder of Joe Gallardo.^[1] (Pen. Code, § 187.)^[2] The jury found that Ochoa personally used a deadly and dangerous weapon, specifically, a wooden club. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) As determined by the court, Ochoa also had two prior serious felony convictions (§ 667, subd. (a)) and two prior strike convictions (§§ 667, subds. (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A)). The court sentenced Ochoa to a total of 75 years to life, plus 11 years.

On appeal, Ochoa claims the trial court erred in excluding codefendant Richard Pineda's confession to his sister that he was the one who beat Gallardo with the wooden club or stick. Ochoa challenges his conviction on the ground that he received inadequate notice that the prosecutor could use the alternative theory of murder by torture. Ochoa also challenges his conviction on the ground that insufficient evidence supported the jury's guilty verdict of first degree murder under either a theory of murder by torture or a theory of deliberate and premeditated murder.

We conclude that the court abused its discretion in excluding Pineda's confession, but the error was harmless. We also reject Ochoa's other claims and affirm his conviction.

2. Factual and Procedural History

Michelle Coronado, Ochoa's fiancé, was friends with codefendant Pineda and Gallardo. Pineda lived in an apartment of a three-unit complex at 190 East 7th Street in Perris. Pineda's sister, Linda Frank, lived in another unit of the same complex. Pineda's friends visited frequently, often to party and take drugs.

In the week preceding April 26, 2003, Coronado stayed at Pineda's apartment while Ochoa resided at the Hacienda Christian Life Center. Coronado was accompanied by two others, including Gallardo. During a phone conversation between Coronado and Ochoa, Ochoa seemed upset over Coronado's living arrangements. During the week, Pineda and Gallardo had arguments over a security light and a scooter that Pineda had accused Gallardo of stealing. During one of these arguments, Gallardo punched Pineda in the stomach.

On April 25, 2003, Ochoa came to Pineda's apartment and both Ochoa and Coronado were asked to leave. As they were leaving, the couple ran into Gallardo. Gallardo told Coronado that Ochoa was â€