People v. Ochoa

Filed 8/18/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B297183

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA427590-03)
v.

ALBERTO OCHOA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, George G. Lomeli, Judge. Convictions are
affirmed and matter is remanded for resentencing.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Zee
Rodriguez and Nathan Guttman, Deputy Attorneys General, for
Plaintiff and Respondent.
_____________________
 In Miller v. Alabama (2012) 567 U.S. 460 (Miller) the
United States Supreme Court held that mandatory sentencing
schemes imposing prison terms of life without parole on juvenile
offenders violate the Eighth Amendment because they fail to
consider youth-related mitigating factors that may diminish a
juvenile’s culpability and suggest a capacity for reform.
Applying the principles of Miller in People v. Gutierrez
(2014) 58 Cal.4th 1354, 1361 (Gutierrez), the California Supreme
1
Court held Penal Code section 190.5, subdivision (b), which
prescribes a sentence of life without parole or a term of 25 years
to life for a 16- or 17-year-old defendant found guilty of special
circumstances murder, “authorizes, and indeed requires”
consideration of the youth-related mitigating factors identified in
Miller before imposing life without parole on a juvenile homicide
offender: “Under section 190.5(b), a sentencing court must
consider the aggravating and mitigating factors enumerated in
Penal Code section 190.3 and the California Rules of Court.
[Citation.] Section 190.5(b) does not expressly direct the
sentencing court to consider those factors, but ‘since all
discretionary authority is contextual, those factors that direct
similar sentencing decisions are relevant, including “the nature
and circumstances of the offense, the defendant’s appreciation of
and attitude toward the offense, or his traits of character as
evidenced by his behavior and demeanor at the trial.”’”
(Gutierrez, at p. 1387.)
Legislation initially enacted shortly before the decision in
Gutierrez now provides for youth offender parole hearings at

1
Statutory references are to this code unless otherwise
stated.

2
statutorily prescribed points, including with the passage of
Senate Bill No. 394 (2017-2018 Reg. Sess.) for youth offenders
sentenced to life without parole, effectively mooting
Eighth Amendment challenges to sentences of life without parole
or the functional equivalent of life without parole. (See People v.
Franklin (2016) 63 Cal.4th 261.) Section 190.3 requiring the
sentencing court to consider the aggravating and mitigating
factors detailed in Gutierrez before imposing the harsher
sentence on a youth offender under section 190.5, subdivision (b),
however, remains in place and unchanged.
Here, Albert Ochoa, sentenced to life without parole for the
murder of Xinran Ji during an attempted robbery committed
when Ochoa was 17 years old, contends the trial court abused its
discretion by failing to heed Gutierrez and consider youth-related
mitigating factors at sentencing. Because the record does not
indicate the trial court considered those factors before imposing
life without parole and we cannot presume the court understood
its duty to do so notwithstanding the then-recent passage of
Senate Bill No. 394, we agree and remand the matter for
resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Amended Information
An amended information filed May 15, 2015 charged Ochoa
with murder (§ 187), second degree robbery of Claudia Rocha
(§ 211), attempted second degree robbery of Jesus Ontiveros
(§§ 664, 211) and assault with a deadly weapon on Ontiveros
(§ 245, subd. (a)(1)). The information specially alleged Ochoa had
committed the murder during an attempted robbery (§ 190.2,
subd. (a)(17)); had personally used a deadly or dangerous weapon,
a baseball bat, during the commission of the murder of Ji,

3
robbery of Rocha and attempted robbery of Ontiveros (§ 12022,
subd. (b)(1); and had inflicted great bodily injury on Ontiveros
during the aggravated assault (§ 12022.7, subd. (a)). Ochoa
pleaded not guilty and denied the special allegations.
2. Remand for a Transfer Hearing in Juvenile Court, and
Return of the Matter to Adult Criminal Court
Prior to trial Ochoa successfully moved, without objection,
to remand his case to juvenile court for a hearing pursuant to
then-newly adopted Proposition 57, the Public Safety and
Rehabilitation Act of 2016, which repealed prior statutory
provisions that had permitted direct filing in adult criminal court
of certain cases involving juveniles. Following a hearing, the
juvenile court found Ochoa’s case should not be retained in
juvenile court and transferred the matter back to adult criminal
court.
3. The Trial
According to the evidence presented at trial, Ochoa, along
with his companions Andrew Garcia, Alejandra Guerrero and
Jonathan Del Carmen, decided to go “flocking,” a term Ochoa
explained to police meant “robbing someone.” They found Ji, a
24-year-old USC graduate student, walking home to his
apartment from a study session just after midnight. In a
particularly brutal attack, Ochoa and Garcia beat Ji with a metal
baseball bat when Ji refused to relinquish his backpack.
Guerrero hit Ji with a wrench. The beating crushed Ji’s skull.
After his attackers left, Ji, bloodied and severely injured,
managed to return to his apartment, where he died a short time
later. The attack was captured on surveillance cameras, and the
footage was played for the jury.

4
 After the attack on Ji, Ochoa and his companions drove to
the beach, where they encountered Rocha and Ontiveros and
demanded the couple’s possessions. Rocha complied. Ontiveros
stepped in front of Rocha to protect her. After Ontiveros lost his
footing and fell to the ground, Ochoa swung the baseball bat at
Ontiveros’s head. Ontiveros blocked the blow with his arm.
Ontiveros managed to escape his attackers and flag down police
officers on patrol. Ochoa and his companions initially chased
Ontiveros but fled the scene when they saw him talking to the
police. They were arrested a short time later.
4. The Verdict and Sentence
The jury found Ochoa guilty on all counts. It specifically
found Ochoa was “the actual killer” of Ji and found true all
special allegations relating to the murder charge. The jury
received no instructions, and made no findings, as to the special
allegations relating to the other counts.
At sentencing the court stated, “with regard to count 1,
murder in the first degree, coupled with the special circumstance
alleged under [section] 190.2(a)(17), the defendant shall receive
the term of life without the possibility of parole, plus one year for
use of a deadly weapon pursuant to Penal Code
section 12022(b)(1).” Neither the People nor Ochoa addressed in
sentencing memoranda or at the hearing the court’s discretion to
impose a term of 25 years to life pursuant to section 190.5,
subdivision (b); and the court did not explicitly address that
alternative or any youth-related mitigating factors when
imposing life without parole.
As to the robbery and aggravated assault counts, the court
imposed consecutive terms of three years for the robbery of
Rocha, eight months for the attempted robbery of Ontiveros and

5
one year for the assault with a deadly weapon on Ontiveros. In
selecting consecutive sentences, the court expressly found the
crimes involved great violence, great bodily injury or the threat of
great bodily injury, a high degree of cruelty and particularly
2
vulnerable victims.
Following imposition of sentence the court acknowledged,
“[d]ue to [Ochoa’s] age at the time of the commission of the
charges herein, he is entitled to a hearing for the limited purpose
of affording him the opportunity to make a record of youth-
related mitigating factors for the parole board’s future
consideration under the dictates of People v. Franklin, [supra,]
63 Cal.4th 261. The court has also considered the consequences
and the applicability of Penal Code section 3051 and Senate
Bill 394 regarding juveniles receiving a life without the
possibility of parole sentencing term. All counsel have stipulated
to the submission of a documentary packet addressing the youth-
related mitigating factors addressed in the defendant’s juvenile
proceeding related to this case to be considered by a parole board
at the defendant’s future youth offender parole hearing. This
documentary packet shall be jointly submitted by all counsel to
serve as a record addressing the youth-related factors in lieu of a
hearing for the parole board’s future consideration under
3
Franklin.”

2
As for mitigation the court observed, “[T]he defendant has
no and/or a minimal criminal history as a circumstance in
mitigation.”
3
Recognizing that assembling information on youth-related
mitigating factors is a task more easily accomplished at the time
of sentencing rather than decades later at a parole hearing, the

6
 DISCUSSION
1. Life-without-parole Sentencing for Youth Offenders
In Graham v. Florida (2010) 560 U.S. 48, 74 (Graham) the
United States Supreme Court, emphasizing a juvenile offender’s
“capacity for change and limited moral culpability,” held it
violated the Eighth Amendment’s prohibition of cruel and
unusual punishment to impose life without parole on a juvenile
offender who had not committed homicide. Two years later in
Miller, supra, 567 U.S. at pages 477 to 478, the Supreme Court
extended the reasoning of Graham to hold it also violated the
Eighth Amendment to impose a mandatory life without parole
sentence on a juvenile convicted of murder because that
mandatory penalty “precludes consideration of [the juvenile’s]
chronological age and its hallmark features—among them,
immaturity, impetuosity, and failure to appreciate risks and
consequences. It prevents taking into account the family and
home environment that surrounds him—and from which he
cannot usually extricate himself—no matter how brutal or
dysfunctional. It neglects the circumstances of the homicide
offense, including the extent of his participation in the conduct
and the way familial and peer pressures may have affected him.
Indeed, it ignores that he might have been charged and convicted
of a lesser offense if not for incompetencies associated with
youth—for example, his inability to deal with police officers or
prosecutors (including on a plea agreement) or his incapacity to

Franklin Court held that a defendant must be permitted at the
time of sentencing to make a record of those factors (Franklin,
supra, 63 Cal.4th at pp. 283-284), a proceeding that has since
become known as a Franklin hearing. (See In re Cook (2019)
7 Cal.5th 439, 459.)

7
assist his own attorneys.” (Miller, at pp. 477-478.) A sentence of
life without parole on a juvenile that fails to take these youth-
related mitigating factors into account, the Court held, violates
the Eighth Amendment prohibition on cruel and unusual
punishment. (Ibid.; accord, Montgomery v. Louisiana (2016)
__ U.S. __ [136 S.Ct. 718, 733].) Shortly after Miller, the
California Supreme Court held in People v. Caballero (2012)
55 Cal.4th 262, 268 (Caballero) that the Eighth Amendment
analysis in Graham also applied to sentences that are the
“functional equivalent of a life without parole sentence,”
including Caballero’s term of 110 years to life.
To bring juvenile sentencing in California into conformity
with Graham, Miller and Caballero, the Legislature enacted
Senate Bill No. 260 (2013-2014 Reg. Sess.), effective January 1,
2014, adding sections 3051 and 4801, subdivision (c), to the Penal
Code. Those provisions, as subsequently amended, require the
Board of Parole Hearings (Board), with certain limited
exceptions, to conduct a youth offender parole hearing no later
than a juvenile offender’s 25th year of incarceration (and at
earlier points depending on the offender’s “controlling offense”)
(§ 3051, subd. (b)) and, when considering parole eligibility for
these youth offenders, to “give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased
maturity” (§ 4801, subd. (c)). (See Montgomery v. Louisiana,
supra, 136 S.Ct. at p. 736 [“[a] State may remedy a Miller
violation by permitting juvenile homicide offenders to be
considered for parole, rather than by resentencing them”].)
Senate Bill No. 260 did not address juveniles sentenced to
life without parole, nor did it revise section 190.5, subdivision (b),

8
which has, since its adoption by voter initiative in the
1990 general election, provided the trial court with
two sentencing options for 16- and 17-year-olds convicted of
special circumstance murder: life without parole or 25 years to
4
life.
In Gutierrez, supra, 58 Cal.4th 1354 the Supreme Court
addressed section 190.5, subdivision (b)’s, authorization of a life
without parole sentence on a juvenile convicted of special
5
circumstance murder. The Court rejected the People’s
contention the discretionary nature of section 190.5,
subdivision (b), materially distinguished it from the mandatory
statutory scheme addressed in Miller, and disapproved prior
court of appeal decisions interpreting the provision to impose a
rebuttable presumption of life without parole, explaining such a
construction raised serious Eighth Amendment concerns under
Miller. (Gutierrez, at p. 1384 [any presumption of life without
parole on a juvenile, even a rebuttable one, contravened Miller’s
mandate that this sentence be reserved for the “‘“rare juvenile
offender whose crime reflects irreparable corruption”’”].)

4
Section 190.5, subdivision (b), provides, “The penalty for a
defendant found guilty of murder in the first degree, in any case
in which one or more special circumstances enumerated in
Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age
of 18 years at the time of the commission of the crime, shall be
confinement in the state prison for life without the possibility of
parole or, at the discretion of the court, 25 years to life.”
5
Section 190.5, subdivision (a), prohibits imposition of the
death penalty if the defendant was under the age of 18 at the
time of the commission of the crime.

9
 The Gutierrez Court also rejected the defendant’s
contention that, even without a presumption, section 190.5,
subdivision (b), was unconstitutional because it did not require
the court to consider the youth-related mitigating factors
described in Miller before imposing life without parole. Not so,
the Court held. Before imposing sentence under section 190.5,
subdivision (b), “[A] sentencing court must consider the
aggravating and mitigating factors enumerated in Penal Code
section 190.3 and the California Rules of Court.” (Gutierrez,
supra, 58 Cal.4th at p. 1387.) Section 190.3, subdivision (i)’s,
requirement that the sentencing court consider “[t]he age of the
defendant at the time of the crime,” the Court explained,
necessarily encompasses “‘any age-related matter suggested by
the evidence or by common experience or morality that might
reasonably inform the choice of penalty.’” (Gutierrez, at p. 1388.)
Thus, the Court held, section 190.5, subdivision (b), construed
together with section 190.3, subdivision (i), and the California
Rules of Court, requires, as a matter of statutory construction,
the sentencing court to “take into account any mitigated
relevance of ‘age and the wealth of characteristics and
circumstances attendant to it,’ as Miller requires.” (Gutierrez, at
p. 1388; see Cal. Rules of Court, rule 4.423 [mitigating factors
include “factors statutorily declared to be a circumstance in
mitigation or which reasonably relate to the defendant or the
circumstances under which the crime was committed”].)
As discussed, at the time Gutierrez was decided in 2014,
California did not require a mandatory youth offender parole
hearing for juveniles convicted of special circumstance murder
and sentenced to life without parole. However, during its 2016-
2017 session the Legislature passed Senate Bill No. 394,

10
extending the availability of a mandatory parole hearing to
juveniles sentenced to life without parole. With the addition of
section 3051, subdivision (b)(4), a juvenile sentenced to life
without parole is now entitled to a youth offender parole hearing
6
during that offender’s 25th year of incarceration. By affording
those individuals a meaningful opportunity for release, the
Legislature has effectively mooted any claim that imposition of
life without parole on a juvenile offender violates the Eighth
Amendment. (See Franklin, supra, 63 Cal.4th at pp. 279-280
[finding Miller issues moot with regard to defendants subject to
section 3051, subdivision (b)]; In re Kirchner (2017) 2 Cal.5th
1040, 1054 [statute that provides juvenile offenders sentenced to
life terms with parole hearings no later than their 25th year of
incarceration is an example of adequate response to Miller];
see generally In re Arroyo (2019) 37 Cal.App.5th 727, 732 [courts
are “bound to ‘“decide actual controversies by a judgment which
can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or
rules of law which cannot affect the matter in issue in the case
before it”’”].)
2. The Sentencing Court Is Statutorily Required To
Consider Youth-related Mitigating Factors Before
Imposing Life Without Parole
Ochoa acknowledges the availability of a youth offender
parole hearing in his 25th year of incarceration pursuant to

6
Similarly, an individual convicted of a controlling offense
committed when he or she was 25 years old or younger for which
the sentence is an indeterminate term of 25 years to life is
entitled to a youth offender parole hearing during his or her
25th year of incarceration. (§ 3051, subd. (b)(3).)

11
section 3051, subdivision (b)(4), has mooted any
Eighth Amendment challenge to his sentence. However, citing
Gutierrez, supra, 58 Cal.4th 1354, he contends section 190.5,
subdivision (b), requires, as a matter of statutory construction,
consideration of the youth-related mitigating factors at the time
of sentencing, and the court abused its discretion when it failed to
consider them.
The People respond the Gutierrez Court interpreted
section 190.5, subdivision (b), as it did to preserve that statute’s
constitutionality under Miller. (See Gutierrez, supra, 58 Cal.4th
at p. 1373 [when a statute is capable of two constructions, one of
which will render it constitutional and the other unconstitutional
in whole or in part, “the court will adopt the construction which,
without doing violence to the reasonable meaning of the language
used, will render it valid in its entirety”].) Because the
Legislature has by virtue of section 3051, subdivision (b)(4),
transformed a life without parole sentence imposed under
section 190.5, subdivision (b), to one allowing for a meaningful
opportunity for release, the People argue the Gutierrez Court’s
rationale for such an interpretation of sections 190.5,
7
subdivision (b), and 190.3, subdivision (i), no longer exists.
We do not believe the Gutierrez Court’s statutory
interpretation of section 190.5, subdivision (b), may be so easily

7
As the Attorney General explains it, “The current statutory
scheme still gives trial courts discretion whether to impose
juvenile [life without parole] sentences under section 190.5, but it
specifically satisfies Miller by incorporating those factors into
later youth offender parole hearings; therefore, the
constitutional-avoidance holding in Gutierrez is now
inapplicable.”

12
discarded. While unquestionably mindful of, and motivated by,
the Miller Court’s constitutional-based concern for the
fundamental differences between juvenile and adult minds, the
Gutierrez holding was predicated on the language of section 190.3
and a history of court decisions articulating the factors properly
considered by a sentencing court as a matter of state law.
(See Gutierrez, supra, 58 Cal.4th at p. 1388 [People v. Lucky
(1988) 45 Cal.3d 259, 302 “did not involve a juvenile offender, but
as relevant here, Lucky confirms that section 190.3,
subdivision (i) provides a basis for the court to consider that
‘“youth is more than a chronological fact”’”].) Moreover, when
extending mandatory youth offender parole hearings to
individuals sentenced to life without parole, the Legislature in
Senate Bill No. 394 did not amend section 190.5, subdivision (b)’s
sentencing alternatives. By thus preserving a distinction
between life without parole and a term of 25 years to life for
offenders subject to section 190.5, subdivision (b), the Legislature
signaled its understanding a material difference between those
two sentences remains, notwithstanding the availability of a
youth offender parole hearing during the 25th year of
incarceration under either alternative. (See generally People v.
Buycks (2018) 5 Cal.5th 857, 880 [principles of statutory
interpretation require presumption that Legislature was aware of
existing laws and judicial construction of them when it passed
new law]; People v. Valencia (2017) 3 Cal.5th 347, 358
[fundamental rules of statutory construction require that every
part of a statute be presumed to have some effect; significance
should be given, if possible to every word, and a construction that
renders a word surplusage should be avoided].)

13
 Ochoa points to significant differences in the treatment of
offenders sentenced to life without parole and those serving an
indeterminate term of 25 years to life, such as prisoner intake
categorization, housing assignments, custody assignments and
eligibility for rehabilitation programs. (See Cal. Code Regs.,
tit. 15, §§ 3075-3077, 3078.3, 3269, 3375, 3375.1; see also People
v. Ellison (2003) 111 Cal.App.4th 1360, 1368-1369 [challenge to
completed sentence not moot where adverse collateral
8
consequences may arise].) The People respond that such an
argument is speculative, insisting it is not clear that individuals
afforded youth offender parole hearings under section 3051,
subdivision (b)(4), will continue to be treated as a practical
matter similarly to adult offenders serving life without parole
sentences.
We need not resolve this dispute nor conjecture as to the
real world consequences of a life without parole sentence being
served by a juvenile despite the availability of a youth offender
parole hearing. It is enough that the Legislature has maintained
section 190.5, subdivision (b)’s alternative sentencing scheme for
16- and 17-year-old offenders. As long as that choice exists, the
statutory requirement that youth-related mitigating factors must
be considered at sentencing, as the Gutierrez Court instructed,
remains intact.

8
The nature of the youth offender parole hearing itself, as
well as the likelihood of, and timing for, future parole hearings,
might also be different for youths sentenced to life without parole
and those sentenced to an indeterminate term of 25 years to life.
(See generally § 3041.5, subd. (b)(3); Cal. Code Regs., tit. 15,
§§ 2443, subd. (c), 2445, subd. (e).)

14
 3. Where the Record Is Ambiguous, the Trial Court’s
Understanding of Its Discretion Cannot Be Presumed
The People alternatively argue the trial court did consider
the youth-related mitigating factors at sentencing or, more
precisely, that we must presume it did so on this “silent record.”
(See People v. Lee (2017) 16 Cal.App.5th 861, 867 [“if the record is
silent” on the court’s awareness of its discretionary authority in
sentencing, we must presume the court understood the scope of
its discretion and affirm]; People v. Gutierrez (2009)
174 Cal.App.4th 515, 527 [“in light of the presumption on a silent
record that the trial court is aware of the applicable law,
including statutory discretion at sentencing, [the reviewing court]
cannot presume error where the record does not establish on its
face that the trial court misunderstood the scope of [its]
discretion”].)
The record, however, is not silent. At best, it is ambiguous.
On the one hand, although the court did not mention youth-
related factors, neither Gutierrez nor section 190.5,
subdivision (b), requires the court to make findings on the record
when imposing sentence under section 190.5, subdivision (b).
The court’s acceptance of stipulated documentary evidence
directed to youth-related mitigating factors in lieu of a Franklin
hearing was also appropriate. (See People v. Sepulveda (2020)
47 Cal.App.5th 291, 300-301 [trial court’s acceptance, pursuant to
parties’ agreement, of relevant information of youth-related
mitigating factors in lieu of a Franklin hearing did not violate
due process].)
On the other hand, information concerning youth-related
mitigating factors was submitted to, and accepted by, the trial
court only after the court had already imposed sentence pursuant

15
to section 190.5, subdivision (b). In directing its attention to that
evidence, the court stated it “ha[d] considered the consequences”
of Senate Bill No. 394 (§ 3051, subd. (b)(4)) and was admitting
pursuant to the parties’ stipulation the evidentiary packet
addressing those factors for the parole board’s “future
consideration.” The transcript of proceedings suggests the court
erroneously believed, just as the People have argued in this
appeal, that section 3051, subdivision (b)(4), had eliminated (or at
the very least mooted) the statutory requirement to consider
youth-related mitigating factors at the time of sentencing. While
we do not fault the trial court for this misunderstanding—neither
the People nor defense counsel suggested otherwise—
‘“[d]efendants are entitled to sentencing decisions made in the
exercise of the “informed discretion” of the sentencing court.
[Citations.] A court which is unaware of the scope of its
discretionary powers can no more exercise that “informed
discretion” than one whose sentence is or may have been based
on misinformation regarding a material aspect of a defendant’s
record.’” (Gutierrez, supra, 58 Cal.4th at p. 1391; accord, People
v. Morrison (2019) 34 Cal.App.5th 217, 224.)
Accordingly, when, as here, the record is at the very least
ambiguous as to whether the court understood its obligation to
consider youth-related mitigating factors at sentencing before
making the discretionary sentencing decision required by
Section 190.5, subdivision (b), remand is appropriate. (See People
v. Lua (2017) 10 Cal.App.5th 1004, 1021 [“[W]e cannot say that it
is clear that the trial court recognized it had discretion to strike
one or more of defendant’s [Health & Safety Code]
section 11370.2 enhancements, and expressly declined to do so
[citations][,] [n]or is the record silent on the issue, justifying a

16
presumption in favor of the judgment. [Citations.] We do not
agree with the defendant’s argument that the record conclusively
establishes that the trial court misunderstood the scope of its
discretion . . . , but we do find that some of the trial court’s
comments during sentencing raise serious doubts in that regard.
In the face of such an ambiguous record, it is appropriate to
remand to the trial court to consider the matter under the correct
standard, to the extent it has not already done so”]; People v.
9
Morrison, supra, 34 Cal.App.5th at p. 224 [same].)
4. Ochoa’s Sentence for Aggravated Assault on Ontiveros
Should Have Been Stayed Under Section 654
Ochoa argues section 654 prohibits punishment for both the
attempted robbery and aggravated assault of Ontiveros.
(See § 654, subd. (a) [“[a]n act or omission that is punishable in

9
The question what, if any, findings are required by the
sentencing court upon consideration of youth-related mitigating
factors for Eighth Amendment purposes is currently pending in
the United States Supreme Court. (See Jones v. Mississippi
(Miss.App. 2017) 285 So.3d 626, cert. granted Mar. 9 2020,
__ U.S. __ [140 S.Ct. 1293, 206 L.Ed.2d 374], [raising question
whether Montgomery v. Louisiana, supra, 136 S.Ct. at page 733
requires trial court to find juvenile defendant incapable of
rehabilitation or that the juvenile’s crime reflected “irreparable
corruption” before it may constitutionally impose life without
parole on a juvenile].) As explained, any Eighth Amendment
argument in the case at bar has been mooted by section 3051,
subdivision (b)(4). Nonetheless, without predicting how the
Supreme Court will decide the question presented in Jones, it
should be obvious on-the-record consideration of youth-related
mitigating factors at sentencing would eliminate any need to
make assumptions from a silent record on a matter of such
serious import.

17
different ways by different provisions of law shall be punished
under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be
punished under more than one provision”]; People v. Rodriguez
(2009) 47 Cal.4th 501, 507 [section 654 applies not only where
there is one act, but also where a course of conduct violated more
than one statute; if all offenses were incident to one objective, the
defendant can be punished for any one of such offenses but not
more than one].)
The People concede, and we agree, the record establishes
the attempted robbery and aggravated assault of Ontiveros
comprised a single course of conduct with a single objective.
Here, count 4 (assault with a deadly weapon) provides for the
longer term of imprisonment. Accordingly, the sentence on
count 3 (attempted robbery) should have been stayed pursuant to
10
section 654.

10
The abstract of judgment erroneously identifies the
attempted robbery in count 3 as both a serious and a violent
felony. As properly alleged in the amended information, the
attempted robbery is a serious felony within the meaning of
section 1192.7, subdivision (c)(19) and (c)(39); it is not a violent
felony under section 667.5, subdivision (c). Because our reversal
and remand for resentencing will vacate the current abstract of
judgment, the error is now moot.

18
 DISPOSITION
Ochoa’s convictions are affirmed. The matter is remanded
for resentencing. At resentencing the court must consider youth-
related mitigating factors in deciding whether to impose life
without parole under section 190.5, subdivision (b).

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

19