People v. Barba CA2/1

Filed 1/21/22 P. v. Barba CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B311761

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. PA031366) v.

WILLIAM BARBA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, David W. Stuart, Judge. Affirmed. John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

In 2000, petitioner William Barba was convicted of two counts of first degree murder and three counts of attempted willful, deliberate, and premediated murder. He challenges the summary denial of his Penal Code section 1170.95 (section 1170.95) petition for resentencing. Barba is ineligible for resentencing under section 1170.95 because he was not tried on a felony murder theory or under the natural and probable consequences doctrine. The jury was not instructed on any other “theory under which malice is imputed to a person based solely on that person’s participation in a crime. . . .” (§ 1170.95, subd. (a).) The trial court properly denied his resentencing petition. We affirm.

BACKGROUND On October 25, 1998, Barba, a member of the Knock Knock Boys street gang and his confederate Oscar Macias shot at five rival gang members and killed two of them. (People v. Barba (May 8, 2001, B140807) [nonpub. opn.] (Barba I).) Barba was driving when Macias, Barba’s passenger, shot seven or eight times into the Honda carrying the rival gang members. (Ibid.) At Barba’s and Macias’s joint trial, the trial court instructed the jury on aiding and abetting liability. The instruction required that the aider and abettor act “with knowledge of the unlawful purpose of the perpetrator” and “with the intent or purpose of committing or encouraging or facilitating the commission of the crime.” The murder special circumstance instruction provided in pertinent part: “If you find that a defendant was not the actual killer of a human being, you cannot find the special circumstance of Shooting from a Motor Vehicle with the Intent to Inflict Death to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such