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Name: People v. Ochoa
Case #: B264450
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 08/31/2016

Attempted extortion conviction reversed where there was no evidence the defendant intended to extort anything from the sole victim named in the information. Ochoa and a companion approached a man, Santiago, who was working in a food truck. Ochoa attempted to extort money from the man, claiming the truck was in Mara Salvatrucha gang territory and therefore owed the gang “rent.” When the worker refused, Ochoa left. Five minutes later he returned and, without any exchange of words, shot another food truck worker, Martinez, in the face. Ochoa was charged with premeditated attempted murder (count 1) and attempted extortion (count 2) of Martinez. He was convicted of both offenses, plus enhancements. On appeal he challenged the sufficiency of the evidence of attempted extortion. Held: Attempted extortion conviction reversed. “Extortion is the obtaining of money from another, with his consent . . . induced by a wrongful use of force or fear.” (Pen. Code, § 518.) Attempted extortion occurs when a person, with the specific intent to commit extortion, commits a direct but ineffectual act to do so (Pen. Code, § 524). Under the extortion statutes, “fear” may be induced by a threat to commit an unlawful injury to the person or property of the person threatened. Here, there was no evidence that Ochoa intended to extort any money from Martinez, who was the victim identified in the information, as no words were exchanged between the two men and there was no evidence Martinez heard the previous extortion attempt Ochoa made of Santiago. The information did not identify the food truck business as a victim of the attempted extortion, only Martinez, which provided insufficient notice to Ochoa of the charge against him. Ochoa pleaded not guilty to the charges, so the court lacked jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime.

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