Two men were operating a food truck in Los Angeles. One of the men was doing the cooking; the other was serving and manning the register. Mr. Ochoa, a member of the Mara Salvatrucha gang, approached the server, via the truck's side window, and demanded "protection money". The server told Ochoa to come back the next day to talk to the owner of the food truck. While this conversation occurred, the cook was busy at work and heard nothing. Ochoa left. Five minutes later Ochoa came back and, without saying a word, shot the cook in the face. Fortunately the cook survived.
Ochoa was charged, via an information, with attempting to murder the cook and attempting to extort the cook, along with various gun and gang enhancements. A jury returned verdicts of guilty to both counts and found true each enhancement. Ochoa appealed his conviction for attempted extortion.
The Second District, having no choice, reverses on the attempted extortion
As this case involves no novel issue of law, I assume it was published as a warning of sorts. The State alleged in the information that Ochoa tried to extort the cook. Extortion, under these facts, is obtaining property from someone, against their will, by an improper threat. Ochoa did try to extort someone, the cashier (or possibly the truck's owner). But as he said nothing, directly or indirectly, to the cook before shooting him, Ochoa did not try to extort the cook.
Had the State's attorney recognized this pleading error and moved to change the information to designate the server (or the owner) as the victim of attempted extortion, the panel would have affirmed the conviction. But, the State overlooked this, and, as the opinion points out, an appellate court has not the power to amend an information at this late stage.
The upshot is Ochoa's sentence is reduced from 52-life to 40-life.
More important, hopefully the cook is doing okay and getting assistance from the State's victim compensation program.
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