People v. Barba CA4/3

Filed 2/4/22 P. v. Barba 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G059895

v. (Super. Ct. No. 05WF1694)

ALBERTO APAEZ BARBA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.

Fifteen years ago, appellant Alberto Apaez Barba was sentenced to 25 years in prison for attempted murder and other crimes he committed with a fellow gang member. When he recently sought resentencing under Penal Code section 1170.95, the trial court summarily denied his petition on the basis that section does not apply to the 1 crime of attempted murder. That was true at the time the trial court made its ruling in 2021. However, as of January 1, 2022, section 1170.95 now applies to defendants who were convicted of attempted murder under the natural and probable consequences doctrine. As respondent concedes, this changes requires that we reverse the trial court’s denial order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND In 2005, appellant and Jose Delrio confronted rival gang member Francisco Hernandez at an Orange County bus stop. During the confrontation, Delrio pulled a gun and fired it at Hernandez, but the shot went high, and Hernandez fled to safety. At trial, the prosecution posited appellant directly aided and abetted Delrio in attempting to murder Hernandez, and/or attempted murder was a natural and probable consequence of the lesser crime of disturbing the peace that appellant helped Delrio carry out. Without specifying which of those theories it adopted, the jury convicted appellant of attempted murder. It also convicted him of discharging a firearm in a school zone and street terrorism and found he acted for the benefit of a criminal street gang and vicariously discharged a firearm. The trial court sentenced him to 25 years in prison for his crimes. We affirmed the judgment on appeal. (See People v. Delrio (Mar. 27, 2 2009, G038771) [nonpub. opn.].) In 2020, appellant sought to vacate his attempted murder conviction and to be resentenced under section 1170.95. However, the trial court