California Court of Appeal Apr 19, 2022 No. E075416AUnpublished
Filed 4/19/22 P. v. Barrera CA4/2 (opinion on transfer from Supreme Court) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E075416
v. (Super.Ct.No. RIF102091)
MARCO ANTONIO BARRERA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, and Steve Oetting, Eric A. Swenson, and Paige B. Hazard, Deputy Attorneys
General, for Plaintiff and Respondent.
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Marco Antonio Barrera pled guilty to attempted murder in 2002 and was
sentenced to 38 years in prison. In 2019, the California Department of Corrections and
Rehabilitation (CDCR) recommended recalling his sentence and resentencing him based
in part on his exemplary behavior while in prison. The trial judge did recall the sentence,
but after hearing argument resentenced Barrera to the exact same term. Barrera appealed,
and we initially affirmed the trial court’s decision.
Shortly after our decision, Assembly Bill No. 1540 (2021-2022 Reg. Sess.)
(Assembly Bill 1540) went into effect, which changed the procedure for recall and
resentencing upon a recommendation from the CDCR. On rehearing, Barrera argues he is
entitled to the ameliorative benefits of the changes to the law and the appropriate remedy
is remand to the trial court for a new hearing on his petition. We agree, reverse, and
remand.
I. FACTS
Eugene C. and Barrera were acquaintances who used methamphetamine together.
In 2002, Eugene was working in an apartment alone when Barrera entered singing a
threatening song. For unknown reasons Eugene said, “What are you waiting for? Get on
with it,” then stood up. Barrera grabbed Eugene’s arm, pulled a gun from his waistband,
and shot Eugene in the head. Barrera shot Eugene twice more while he was on the
ground. Eugene was able to flee to another apartment and get help, surviving the attack.
The Riverside County District Attorney charged Barrera with premeditated
attempted murder and unlawfully possessing a firearm as a felon. (Pen. Code, §§ 664,
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subd. (a), 187, subd. (a), 12021, subd. (a)(1), unlabeled statutory citations refer to this
code.) The information also alleged enhancements for personally firing a firearm causing
great bodily injury (§ 12022.53, subd. (d)) and for personally causing great bodily injury.
(§ 12022.7, subd. (a).) Finally, the information alleged Barrera had two prior serious
felony convictions (§ 667, subd. (a)) and four prior strike convictions based on
convictions for residential burglary dating from 1987. (§§ 667, subds. (c) & (e)(1),
1170.12, subd. (c)(1).)
After reaching a plea agreement, Barrera pled guilty to unpremeditated attempted
murder, and admitted a firearm use enhancement (§ 12022.53, subd. (b)), one prior strike,
and both prior serious felony enhancements. Following the terms of the agreement, the
trial court sentenced Barrera to 38 years in prison, composed of nine years for the
attempted murder—doubled to 18 due to the prior strike—10 years for the firearm
enhancement, and two five-year terms from the prior serious felony enhancements.
In 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) went into
effect, which allowed a trial court to strike or dismiss a prior serious felony enhancement.
That same year the Secretary of the CDCR sent the trial court a letter recommending it
recall Barrera’s sentence and reconsider whether to strike the prior serious felony
enhancements. Barrera filed a petition seeking the same, which the prosecution opposed.
The trial judge heard argument on July 21, 2020. Barrera was represented by a
public defender at the hearing. Both parties presented argument. After argument, the
judge said he felt Barrera “received the full benefit of what he bargained for,” and noted
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the underlying crime constituted “a vicious attack” that was “aggravated in every way it
can be aggravated.” The judge expressed some confusion regarding whether he could
decline to resentence under former section 1170, subdivision (d). He ultimately
concluded “out of an abundance of caution,” he would resentence, but “adopt[] all of the
decisions made by the original sentencing court.” He didn’t exercise his discretion to
strike any of the enhancements and reimposed the exact same sentence. On appeal, we
affirmed the trial judge’s decision to reimpose the same sentence.
On October 8, 2021, the governor approved passage of Assembly Bill 1540, which
took effect on January 1, 2022. In an order received on January 3, 2022, the California
Supreme Court directed us to vacate our prior decision and reconsider Barrera’s appeal in
light of the change in the law.
II. ANALYSIS
On rehearing, Barrera argues he is entitled to the ameliorative benefits of
Assembly Bill 1540. We agree.
Assembly Bill 1540 moved the recall and resentencing provisions formerly under
section 1170, subdivision (d)(1), to new section 1170.03 and amended its requirements.
(Stats. 2021, ch. 719.) The new provision directs that “[i]f a resentencing request . . . is
from the Secretary of the Department of Corrections and Rehabilitation,” then “[t]here
shall be a presumption favoring recall and resentencing of the defendant, which may only
be overcome if a court finds the defendant is an unreasonable risk of danger to public
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safety.” (§ 1170.03, subd. (b)(2).) Barrera argues he is entitled to a new hearing where the
judge applies this presumption in his favor. We agree.
Because Barrera’s sentence is not yet final, the changes to recall and resentencing
enacted by Assembly Bill 1540 apply to him. (People v. Garcia (2018) 28 Cal.App.5th
961, 972.) Accordingly, he would usually be entitled to have his request for resentencing
reconsidered under the terms of this new law.
However, the People argue remand is not necessary because Barrera already
received the ameliorative benefits to which section 1170.03 now entitles him. That is,
Barrera already had a hearing where he was represented by counsel and where the judge
considered the CDCR’s recommendation with the benefit of argument from both parties.
At the hearing, the judge accepted the CDCR’s recommendation, recalled Barrera’s
sentence, and resentenced him to an identical sentence. Under these circumstances, the
only difference between the process Barrera received under former section 1170,
subdivision (d), and the process he is now due under section 1170.03 is that he didn’t
receive a presumption in favor of resentencing. But the People argue the fact Barrera
didn’t receive this presumption doesn’t matter, because the judge opted to resentence him
even without a presumption in favor of resentencing. Indeed, the judge mistakenly
thought he might have to resentence Barrera, meaning the judge gave him more than he
would be entitled to under the current law.
Nevertheless, we consider remand necessary to permit the court to reconsider the
CDCR’s recommendation with section 1170.03’s changes to the law in mind. This
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includes not just the new presumption in favor of resentencing—which we agree would
not much benefit Barrera—but also section 1170.03’s requirement that if Barrera is
resentenced, he must be resentenced according to sentencing law as it exists now. This
would include changes to sentencing caused by Senate Bill Nos. 81 (Stats. 2021, ch. 721,
§ 1) and 567 (Stats. 2021, ch. 731, §1.3) (Senate Bill 81 & Senate Bill 567), both
effective January 1, 2022, which changed how a court can and when it must consider
certain factors before imposing enhancements.
Senate Bill 81 amended section 1385 to include a series of mitigating
circumstances and required courts to “consider and afford great weight to evidence
offered,” to prove those mitigating circumstances. (§ 1385, subd. (c)(2).) Moreover,
“[p]roof of the presence of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that dismissal of the enhancement
would endanger public safety.” (Ibid.) One such mitigating circumstance is where
“[t]he enhancement is based on a prior conviction that is over five years old.” (§ 1385,
subd. (c)(3)(H).)
Senate Bill 567, on the other hand, changed section 1170 to forbid a court from
imposing more than the middle term except “when there are circumstances in aggravation
of the crime that justify the imposition of a term of imprisonment exceeding the middle
term, and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the jury or by
the judge in a court trial.” (§ 1170, subd. (b)(2).) However, “the court may consider the
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defendant’s prior convictions in determining sentencing based on a certified record of
conviction without submitting the prior convictions to a jury,” and those convictions may
not also be used as the basis for enhancements. (§ 1170, subd. (b)(3), (5).)
Barrera’s sentence includes both an upper term and at least two enhancements
based on crimes from the 1980’s. This means he would be entitled to a presumption in
favor of dismissing the enhancements based on the age of the supporting convictions. The
resentencing judge would also have to consider whether to use these convictions as a
basis to support imposing the upper term, or as a basis for imposing the enhancements,
but not both. These benefits weigh heavily in Barrera’s favor, and if he is resentenced
under the new law, he is entitled to have his resentencing recommendation reconsidered
in light of these changes.
Thus, even though Barrera has already been resentenced, and therefore the
presumption in favor of resentencing doesn’t benefit him, the presumption plus the other
changes have created a new resentencing paradigm. All these changes have created a
wholly new procedure for considering the CDCR’s recommendations and resentencing
under them, a procedure Barrera didn’t receive, and which would likely provide some
ameliorative benefit. In short, because Barrera’s case is not final and the terms for how a
recommendation from CDCR should be considered have changed, he is entitled to a fresh
look under this new paradigm.1
1 The People argue that on remand, they must be permitted to withdraw from the plea agreement should the judge resentence Barrera. We do not address that contention because it isn’t ripe for our review. The judge hasn’t yet determined whether Barrera will
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III. DISPOSITION
We reverse the resentencing order and remand. On remand, the court shall appoint
counsel (§ 1170.03, subd. (b)(1)) and apply the presumption in favor of resentencing and
may decline to resentence only if it determines Barrera is a threat to public safety.
(§ 1170.03, subd. (b)(2).) If the judge intends to decline to resentence, they must hold a
hearing “where the parties have an opportunity to address the basis for the intended
denial or rejection.” (§ 1170.03, subd. (a)(8).) Should the judge resentence Barrera, they
must “apply the sentencing rules of the Judicial Council and apply any changes in law
that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) This
includes recent changes to judicial discretion enacted by Senate Bills 81 and 567, as well
as any other ameliorative changes which post-date Barrera’s conviction.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J. We concur:
CODRINGTON Acting P. J.
FIELDS J.
be resentenced, nor otherwise considered the People’s argument, and so addressing that issue now would be answering a merely hypothetical question. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [“the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy”].) Nevertheless, the People may raise the argument with the trial judge should the judge decide to resentence Barrera.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose sentence is not yet final is entitled to a remand for resentencing under the procedures and ameliorative sentencing laws enacted by Assembly Bill 1540, Senate Bill 81, and Senate Bill 567.
Issues
Whether a defendant is entitled to the ameliorative benefits of Assembly Bill 1540 when a sentence is not yet final.
Whether a defendant is entitled to a new resentencing hearing to apply current sentencing laws, including Senate Bills 81 and 567.
Disposition. Reversed and remanded
Quotations verified verbatim against the opinion
“Because Barrera’s sentence is not yet final, the changes to recall and resentencing enacted by Assembly Bill 1540 apply to him.”
“In short, because Barrera’s case is not final and the terms for how a recommendation from CDCR should be considered have changed, he is entitled to a fresh look under this new paradigm.”