California Court of Appeal Dec 13, 2021 No. B304388AUnpublished
Filed 12/13/21 P. v. Barragan CA2/4 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B304388 (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BA242184)
v. OPINION FOLLOWING TRANSFER FROM ADRIAN BARRAGAN, SUPREME COURT
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed. Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Matthew Rodriquez, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.
This matter is before us following the Supreme Court’s transfer with directions for this court to vacate our prior decision (People v. Barragan (June 22, 2021, B304388) [nonpub. opn.]), and reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We vacate our opinion in Barragan I. After reconsidering the cause, however, we find that the court’s error in summarily denying defendant and appellant Adrian Barragan’s motion for resentencing (Pen. Code, § 1170.95)1 was non-prejudicial, and affirm the judgment.
FACTUAL BACKGROUND2 Appellant and his cousin Daniel Barragan are members of the Eastside Clover Street gang.3 The murder victim, Frank Ibarra, had been affiliated with the gang when he was younger but had since disassociated himself from it. Ibarra still lived in the gang’s territory, and on many prior occasions, had been physically harassed by appellant and other gang members. On the evening of January 17, 2003, Ibarra and his two companions (Ruben Colunga and Ramon Lopez) went to a local Jack-in- the-Box restaurant. After pulling his vehicle into the drive-thru lane,
1 Undesignated statutory references are to the Penal Code.
2 We recite the factual and procedural background from appellant’s direct appeal in People v. Barragan (Nov. 29, 2005, B175130) [nonpub. opn.] (Barragan I).
3 For ease of reading, we refer to Daniel Barragan by his first name. Daniel is not a party to this appeal.
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Ibarra placed an order. As the three men waited, Ibarra saw appellant next to him, seated in the driver’s seat of a sedan. Scared and shocked, Ibarra pointed out appellant to his companions. Appellant was accompanied by two other people—his cousin Daniel in the front passenger seat, and an unidentified individual in the back seat. Appellant stared at the men in a threatening manner. Ibarra quickly tried to drive away from the restaurant, but appellant moved his car to block him. Ibarra drove toward another exit. While Ibarra’s vehicle passed by appellant’s, appellant called Ibarra and his companions names. Then, “[appellant] made a U-turn in his car and followed Ibarra’s vehicle around the restaurant parking lot. As Ibarra was about to exit onto the street, [Daniel] leaned out of the front passenger window and shot multiple times at Ibarra’s vehicle.” Colunga was wounded, and Ibarra was killed by a single gunshot wound to the head. His vehicle crashed into a tree. The impact of the crash injured Lopez. After the crash, shots continued to come from appellant’s sedan. Appellant then drove away. Police responded to the scene and identified three bullet holes in Ibarra’s vehicle. Officers recovered six expended 9 millimeter cartridges, one live 9 millimeter cartridge, and two spent 9 millimeter bullets. During the course of several interviews, the surviving victims made photographic identifications of appellant and Daniel. Appellant’s girlfriend testified that she had lent her sedan to appellant on the night of the shooting. From a photograph taken from a Jack-in-the-Box surveillance tape, appellant’s girlfriend identified appellant as the driver of the sedan.
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PROCEDURAL BACKGROUND By information in November 2003, appellant and Daniel were charged with murder (§ 187, subd. (a), count 1), two counts of attempted murder (§ 664/187, subd. (a), counts 2-3), and shooting at an occupied motor vehicle (§ 246). The information also alleged, inter alia, that: appellant intentionally killed the victim while actively participating in a criminal street gang (§ 190.2, subd. (a)(22)); the murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); and Daniel personally and intentionally discharged or used a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). Appellant and Daniel were jointly tried. Neither appellant nor Daniel testified. According to expert testimony, the shooting was gang motivated, as it bolstered the defendants’ reputations within the Eastside Clover Street gang. During closing argument, appellant’s trial counsel argued that despite driving the sedan during the shooting, appellant lacked the requisite mental state to be liable as an aider and abettor to Ibarra’s murder. The prosecution argued that Daniel was the actual shooter, and appellant was liable as an aider and abettor to drive-by murder. By general verdict in 2004, a jury found appellant guilty of first degree murder, attempted willful, deliberate and premeditated murder, and shooting at an occupied vehicle. The jury also found true the gang- murder special circumstance and firearm enhancement allegation. The jury returned no verdict on the special circumstance allegation that the murder was perpetrated by means of discharging a firearm from a
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motor vehicle. In a bifurcated proceeding, the trial court sentenced appellant to an overall term of life imprisonment without the possibility of parole, plus 25 years for the firearm enhancement. In appellant’s direct appeal in 2005, we reversed his two convictions for attempted murder based on instructional error,4 but otherwise affirmed the judgment. In 2018, appellant filed a petition for writ of habeas corpus seeking relief under People v. Chiu (2014) 59 Cal.4th 155, 158 (Chiu). The trial court denied the petition, and explained that the jury had not been instructed on aider and abettor liability for first degree premeditated murder or under the natural and probable consequences doctrine. On November 14, 2019, appellant filed a petition for resentencing pursuant to section 1170.95, claiming entitlement to relief because he was convicted of first degree murder under a felony-murder theory or the natural and probable consequences doctrine. Appellant requested that counsel be appointed on his behalf. The day after the petition was filed, and before appointing counsel or receiving briefing by the parties, the trial court summarily denied it
4 During deliberations, the jury submitted a question to the court as follows: “Is a defendant guilty of attempted murder of person B if he or she: [¶] . . . [i]ntends to kill person A but wounds person B?” As to both defendants, the court gave an instruction on the kill zone theory of attempted murder (CALJIC No. 8.66.1). We found the supplemental instruction properly given as to Daniel, but found submission of the instruction as to appellant to be in error. (See Barragan I, supra, at p. 12 [the instruction “permitted the jury to convict [appellant] of attempted murder on a legally unsound basis: vicarious liability for his codefendant’s intent to create a ‘kill zone’”].)
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in a written memorandum. After setting forth the facts of the case as we discussed in Barragan I, the court found that the “trial evidence clearly established, and the jury found, that [appellant] acted with an intent to kill and was a major participant who acted with reckless indifference to human life.” Based on these findings, the court concluded that appellant was ineligible for relief as a matter of law. In his prior appeal People v. Barragan (June 22, 2021, B304388) [nonpub. opn.] (Barragan II), appellant argued the trial court erred by denying his petition without appointing him counsel, as he had requested, and by engaging in factfinding to determine his ineligibility for relief. We affirmed the judgment. In doing so, we held that while the trial court’s engaging in factfinding was in error, the conclusion it reached was not. As the non-shooter in this case, appellant was tried as an aider and abettor (CALJIC Nos. 3.00-3.01), and the jury was instructed on three theories of first degree murder: premeditated murder, drive-by murder, and a felony murder (based on a modification of standard instructions) for the discharge of a firearm from a motor vehicle (CALJIC Nos. 8.20, 8.25.1, 8.21). To convict appellant of first degree murder as an aider and abettor under these theories, we found that the jury was required to find that appellant shared the intent of the perpetrator to kill the victim. Because these theories remain valid in the wake of Senate Bill No. 1437 (S.B. 1437) (see § 189, subd. (e)), we found appellant was ineligible for relief as a matter of law. The Supreme Court granted appellant’s petition for review, and ordered us to vacate our decision in Barragan II and reconsider the matter in light of Lewis, supra, 11 Cal.5th 952.
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DISCUSSION Following the Supreme Court’s transfer of the matter, appellant filed a supplemental opening brief in which he argued reversal is required pursuant to Lewis, because the trial court committed error by summarily denying his petition for resentencing without appointing counsel. Having reconsidered the matter, we agree with appellant that the trial court erred. (See Lewis, supra, 11 Cal.5th at pp. 961–970.) Consistent with Lewis, however, we find the error harmless, as the only theories on which appellant was tried and convicted required a finding that he intended to kill the victim.
1. Governing Law The legislature enacted S.B. 1437 “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); Lewis, supra, 11 Cal.5th at p. 959.) Under the revised section 188, subdivision (a)(3), “‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’” (People v. Gentile (2020) 10 Cal.5th 830, 843.) Section 1170.95, as enacted by S.B. 1437, permits individuals who were convicted of felony murder or murder under the natural and probable consequences doctrine, but who could not be convicted of murder following S.B. 1437’s
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changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under section 1170.95 must include inter alia a request for appointment of counsel, should the petitioner seek appointment. (§ 1170.95, subd. (b)(2).) Subdivision (c) of section 1170.95 provides in part: “The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” The remainder of section 1170.95 sets forth the procedure for responding to, and the hearing on, the order to show cause, as well as post-hearing matters. Our Supreme Court in Lewis held that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition, and that “only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or she is entitled to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957.) However, the Court also concluded that “the deprivation of [the] right to counsel under subdivision (c) [is] state law error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson).” (Id. at pp. 957–958.) Under this standard, “a petitioner ‘whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been
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afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.”’ [Citation.]” (Id. at p. 974.) When conducting such harmless error analysis, reviewing courts may rely on the petitioner’s record of conviction, including but not limited to jury instructions establishing the petitioner’s ineligibility for relief as a matter of law. (See id. at pp. 973–974; People v. Daniel (2020) 57 Cal.App.5th 666, 670, 676–677, rev. dism. Dec. 1, 2021, S266336.)
2. The Failure to Appoint Counsel and Accept Briefing Was Harmless A. Relevant Jury Instructions The jury was instructed on three alternative theories of first degree murder. The first two theories were premeditated murder and drive-by murder under the standard CALJIC instructions (CALJIC Nos. 8.20, 8.25.1).5 The third theory was a version of felony murder based on the discharge of a firearm from a motor vehicle. As to this theory, the trial court gave a modified version of CALJIC No. 8.21, as follows: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or
5 CALJIC No. 8.20 provided inter alia that “[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.” CALJIC No. 8.25.1 provided: “Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree.”
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attempted commission of the crime [of] discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle with the intent to inflict death is murder of the first degree when the perpetrator had the specific intent to commit that crime. [¶] The specific intent to commit said offense and the commission or attempted commission of that crime must be proved beyond a reasonable doubt.” Regarding these theories of culpability, the court further instructed the jury on the following principles of aiding and abetting: “Persons who are involved in committing a crime are referred to as principals in that crime. . . . Principals include: [¶] 1. Those who directly and actively commit the act constituting the crime, or [¶] 2. Those who aid and abet the commission of the crime.” (CALJIC No. 3.00.) “A person aids and abets the commission of a crime when he: [¶] (1) With knowledge of the unlawful purpose of the perpetrator, and [¶] (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) By act or advice aids, promotes, encourages or instigates the commission of the crime. [¶] . . . [¶] Mere presence at the scene of a crime which does not itself assist the commission of the crime does not amount to aiding and abetting. [¶] Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.” (CALJIC No. 3.01.) By general verdict, the jury found appellant guilty of first degree murder. The verdict form did not specify which theory of first degree murder it found to be true.
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B. Analysis It is undisputed that appellant was tried and convicted not as the actual killer, but as an aider and abettor. (See Barragan I, supra, at pp. 2, 7.) It is also undisputed that the jury was instructed on three different theories of first degree murder against both defendants: (1) premeditated murder; (2) drive-by murder; and (3) felony murder based on the intentional discharge of a firearm from a motor vehicle. Appellant does not dispute that he would be ineligible for relief as a matter of law if he were convicted as an aider and abettor under the first two theories of culpability. We find the concession well taken. (See Chiu, supra, 59 Cal.4th at p. 166 [premeditated murder]; People v. Chavez (2004) 118 Cal.App.4th 379, 386–387 [drive-by murder] (Chavez).) Appellant contends, however, that there is “at the very least, a reasonable probability that [he], were he to be assisted by appointed counsel . . . would make a ‘prima facie showing’ of eligibility for resentencing relief” at this stage of the petitioning proceedings. Such reasonably probability exists, appellant contends, because the jury returned a general verdict for first degree murder, and could have convicted him as an aider and abettor under the third theory of liability for felony murder based on the intentional discharge of a firearm from a motor vehicle. He asserts that his liability for first degree murder as an aider and abettor under this theory, as presented in the modified version of CALJIC No. 8.21, did not require a finding that he intended to kill. We disagree.
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An aider and abettor must “‘“share the specific intent of the perpetrator,”’” meaning he or she must “‘“know[] the full extent of the perpetrator’s criminal purpose and give[] aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” [(People v. Beeman (1984) 35 Cal.3d 547, 560.)]’ (People v. Prettyman [(1996)] 14 Cal.4th [248,] 259.) What this means here, when the charged offense and the intended offense—murder . . . —are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, is that the aider and abettor must know and share the murderous intent of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118 (McCoy), fn. omitted.) The jury in this case was instructed on these very principles of aiding and abetting. (See CALJIC No. 3.01.) Because the target offense listed in the felony murder instruction required the perpetrator to discharge a firearm “with the intent to inflict death,” to convict appellant of first degree murder under this theory as an aider and abettor, the jury was required to find beyond a reasonable doubt that appellant knew the full extent of the unlawful purpose of the perpetrator and gave aid or encouragement with the intent or purpose of facilitating the commission of the drive-by murder. (Ibid.) In other words, the jury was required to find that he knew and shared the murderous intent of the actual shooter. (Compare CALJIC No. 3.01
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with McCoy, supra, 25 Cal.4th at p. 1118; see Chavez, supra, 118 Cal.App.4th 379, 387.) 6 Anticipating this result, appellant contends the modified instruction is ambiguous because it contemplates a conviction for a killing “whether intentional, unintentional or accidental.” He asserts that the word “unintentional” as one of three options for an unlawful killing “is ambiguous and uncertain as to whose state of mind it refers to.” Neither the jury nor this reviewing court construes in isolation a sentence fragment appearing in a jury instruction. Indeed, the trial court in this case instructed the jury to do the very opposite: “Do not single out any particular sentence or any individual point or instruction and ignore the others. Consider the instructions as a whole and each in light of all the others.” (CALJIC No. 1.01.) We also review the instructions as a whole, and presume that the jurors are intelligent and able to understand and correlate the trial court’s instructions to the facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130; People v. Cain (1995) 10 Cal.4th 1, 36.)
6 It is for this reason that the Fifth District held that “the drive-by- shooting clause added to section 189 . . . is not an enumerated felony for purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App.4th at p. 386; see id. at p. 385 [“Although the drive-by-shooting clause appears immediately after the list of enumerated felonies in section 189, it is clear from the content of the clause that drive-by shooting is not part of that list. The drive-by-shooting clause requires an ‘intent to inflict death’ which is never an element of felony murder”].) We do not endeavor to analyze the propriety of the modified felony murder instruction in this case, as appellant did not raise this claim of error in his direct appeal. (See People v. Allison (2020) 55 Cal.App.5th 449, 461.)
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When the instructions are viewed as a whole, it is clear the word “unintentional” did not mislead the jury into shirking its responsibility to analyze appellant’s conduct and state of mind as an aider and abettor to drive-by murder. As we have discussed, the mental state required for that theory of liability was the specific intent to kill. Likewise, in convicting appellant of first degree murder, the jury found true the special circumstance allegation that appellant intentionally killed the victim while he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). This special circumstance requires a finding of an intent to kill. (See ibid. [“[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang”].) This confirms that appellant’s conviction was necessarily based on his intent to kill the victim as an aider and abettor in the murder. In sum, because all three theories of first degree murder in this case required a finding that appellant harbored an intent to kill, he would still be convicted of murder under the amended versions of sections 188 and 189, rendering him ineligible for relief as a matter of law. (§ 1170.95, subd. (a)(3).) Therefore, appellant has not, and cannot, show a reasonable probability that his petition would not have been summarily denied even if the trial court had appointed counsel. // // // //
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DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J. We concur:
MANELLA, P. J.
CURREY, J.
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AI Brief
AI-generated · verify before citing
Holding. The trial court's error in summarily denying the defendant's section 1170.95 petition without appointing counsel was harmless because the defendant's murder conviction, based on theories requiring an intent to kill, renders him ineligible for relief as a matter of law.
Issues
Whether the trial court erred in summarily denying a section 1170.95 petition without appointing counsel.
Whether the failure to appoint counsel was prejudicial under the standard set forth in People v. Lewis (2021) 11 Cal.5th 952.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the only theories on which appellant was tried and convicted required a finding that he intended to kill the victim.”
“because all three theories of first degree murder in this case required a finding that appellant harbored an intent to kill, he would still be convicted of murder under the amended versions of sections 188 and 189”