P. v. Barrera CA2/6

Filed 8/7/13 P. v. Barrera CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Criminal No. B238680 (Super. Ct. No. 1361756) Plaintiff and Respondent, (Santa Barbara County)

v.

ROBERT GALINDO BARRERA, JR., et al.

Defendants and Appellants.

Robert Galindo Barrera (Barrera) and Richard Mariano Reyes (Reyes) challenge their first-degree murder convictions and sentences of 50 years to life. We affirm. FACTS AND PROCEDURAL HISTORY Barrera and Reyes are members of the Westside Varrio Lampara Primera (VLP) street gang in Lompoc, California. On January 14, 2009, fellow gang member Kevin Sullivan (Sullivan) drove them to rival gang territory, where they shot Daniel R., a 14-year-old, in the back. At the time of the shooting, Daniel was alone, unarmed, and standing near his scooter. Daniel had recently been "jumped in" to the Southside gang. When Daniel saw people he did not recognize, he whistled and raised his hands in a gesture asking

Barrera, Reyes, and Sullivan why they were in his neighborhood. Barrera and Reyes answered by shouting, "Westside," and opening fire on Daniel. One of the bullets struck Daniel in the back, and another grazed him; he died from his wounds soon after. Shells recovered at the scene came from two different .22-caliber rifles. Forensic tests were unable to determine from which weapon the fatal shot was fired. After his arrest, Reyes asked to speak with police. He admitted to supplying Barrera and another gang member with a .22-caliber rifle right before the shooting, but stated he did not know why they wanted it. Reyes also denied being at the scene of the shooting, but recounted several specific details only someone present would know—that is, the color of Daniel's shirt, where the shooters stood, who shot first, and how many rounds they fired. Reyes claimed he learned all of these details from others. Barrera and Reyes were charged with first-degree murder. (Pen. Code, §§ 187, subd. (a), 189.)1 They were also charged with two enhancements: (1) a consecutive 15-year enhancement on the ground that the shooting was "for the benefit of, at the direction of, or in association with any criminal street gang" (§ 186.22, subd. (b)(1)); and (2) a consecutive 25-year-to-life enhancement on the alternative grounds that (A) each defendant "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury" (§ 12022.53, subd. (d)); or (B) a "principal" "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury (id. at subds. (d), (e)(1)) and the crime was gang-related under section 186.22, subdivision (b).2 They were jointly tried, but used separate juries so that the People could introduce, against Reyes alone, Reyes's statement implicating Barrera. Except for evidence related to Reyes's statement, the two juries heard the same evidence. The trial court instructed the jury on first-degree murder and the lesser-included offense of second-degree murder. The prosecutor argued that Reyes was guilty of murder either as a co-shooter or as the supplier of one of the rifles. 1 All statutory references are to the Penal Code unless otherwise stated. 2 Sullivan was originally charged with murder, but entered a plea and was sentenced to 68 months in prison in exchange for his cooperation.