People v. Barragan CA3

Filed 3/3/23 P. v. Barragan CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C093651

v. (Super. Ct. Nos. STK-CR-FE- 2002-0009689, SF087807D) VICTOR BARRAGAN, ON TRANSFER Defendant and Appellant.

Defendant Victor Barragan was convicted of murder and several other offenses based on his participation in an attempted home invasion robbery. He appeals from a postjudgment order denying his petition for resentencing under Penal Code

1

section 1172.6.1 The trial court denied defendant’s petition, finding the record established defendant was ineligible for resentencing because the jury found true two special circumstance enhancement allegations. On appeal, defendant argues the trial court erred in summarily denying his petition. Originally, this court affirmed the trial court’s order. (People v. Barragan (Mar. 30, 2022, C093651) [nonpub. opn.].) The California Supreme Court granted review and deferred action pending the disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision, the Supreme Court transferred the matter back to this court with directions to vacate our decision and reconsider the matter in light of Strong. We conclude the trial court’s denial of the petition was inconsistent with section 1172.6 in light of Strong. We will reverse and remand the matter for further proceedings. BACKGROUND Defendant and three codefendants participated in a home invasion robbery, during which the 14-year-old victim was shot and killed. (People v. Barragan et al. (Sept. 17, 2008, C049845) [nonpub. opn.] (Barragan).)2 The jury found defendant guilty of several offenses and found true associated special allegations and enhancements including murder (§ 187) with the special circumstances of attempted

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although petitioner filed his petition under former section 1170.95, we cite to section 1172.6 throughout this opinion. 2 On our own motion, we take judicial notice of our opinion affirming the judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, subd. (a), 452, subd. (d) [permitting a court to take judicial notice of records of “any court of this state”].)