People v. Barnett CA4/3

Filed 6/28/21 P. v. Barnett CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G059192

v. (Super. Ct. No. FSB053188)

MICHAEL BARNETT, JR., OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of San Bernardino, John M. Tomberlin, Judge. Affirmed. Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Michael Barnett, Jr., appeals from an order denying his petition 1 for resentencing under Penal Code section 1170.95. The trial court summarily denied the petition, concluding defendant was ineligible for relief as a matter of law because he was convicted of conspiracy to commit murder. On appeal, defendant contends the trial court erred by relying on the conspiracy conviction to deny his petition. Among other things, he notes the trial court instructed the jury on the natural and probable consequences doctrine as one of the theories for his murder conviction. For the reasons below, we agree with the trial court that defendant is not entitled to resentencing as a matter of law because the jury found him guilty of conspiracy to commit murder, which expressly included an intent to kill. FACTS In 2008, a jury convicted defendant of second degree murder (§ 187, subd. (a); count 1), two counts of attempted murder (§§ 187, subd. (a), 664; counts 2 & 3), conspiracy to commit murder (§ 182, subd. (a); count 4), and shooting at an inhabited dwelling (§ 246; count 5). The jury also found firearm and gang enhancements to be true on all counts (§§ 186.22, subd. (b)(1), 12022.53, subd. (c)-(e).) The trial court sentenced defendant to a total indeterminate sentence of 101 years to life in state prison as follows: (1) 15 years to life on count 1, plus 25 years to life for the firearm enhancement; (2) a consecutive term of nine years on count 2, plus 25 years to life for the firearm enhancement; and (3) a consecutive term of seven years to life on count 3, plus 20 years for the firearm enhancement. The trial court also imposed and stayed sentences on counts 4 and 5 pursuant to section 654 and the gang enhancements pursuant to section 12022.53, subdivision (e)(2) . Another panel of this court affirmed a modified judgment in 2011. (People v. Barnett (July 28, 2011, FSB053188) [nonpub. opn.] (Barnett I).) As noted in the prior 1 All further statutory references are to the Penal Code.