People v. Barrientos CA6

Filed 3/29/23 P. v. Barrientos CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049541 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC268085)

v.

JAIME EDGARDO BARRIENTOS,

Defendant and Appellant.

Defendant pleaded guilty to murder in 2004 and was sentenced to 25 years to life in prison. He petitioned for resentencing under former Penal Code section 1170.95 (now Pen. Code, § 1172.6), and the trial court denied the petition after an evidentiary hearing. Defendant challenges the trial court’s finding beyond a reasonable doubt that he was a major participant in a home invasion robbery who acted with reckless indifference to human life, and its alternative finding that he aided and abetted an implied malice murder. For the reasons stated here, we will affirm the order denying defendant’s resentencing petition. I. TRIAL COURT PROCEEDINGS

William Giardino was shot and killed during a home invasion robbery in 2002. Defendant participated in the robbery along with Alfred Martinez and Bernard Ballard. A 2003 information charged defendant with murder (Pen. Code, § 187), including allegations that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)) and that the murder occurred during a burglary and a robbery (Pen. Code, §§ 190.2, subd. (a)(17),

460, 211). He was also charged with first degree burglary (Pen. Code, §§ 459, 460), including allegations that he personally used a firearm (Pen. Code, § 12022.53, subd. (b)) and personally used a deadly or dangerous weapon (a flashlight) (Pen. Code, § 12022, subd. (b)(1)); and first degree robbery (Pen. Code, §§ 211, 212.5), again including allegations of personal use of a firearm (Pen. Code, § 12022.53, subd. (b)) and a deadly or dangerous weapon (a flashlight) (Pen. Code, § 12022, subd. (b)(1). Unspecified statutory references are to the Penal Code.) Defendant was charged together with codefendant Bernard Ballard. Defendant pleaded guilty in 2004 to second degree murder and first degree robbery. He admitted committing the robbery in an inhabited dwelling while acting in concert with two or more people (§ 213, subd. (a)(1)(A)), and that he personally used a deadly or dangerous weapon (§ 12022, subd. (b)(1)). He was sentenced to 25 years to life in prison, consisting of 15 years to life for second degree murder, consecutive to nine years for first degree robbery and one year for the deadly or dangerous weapon enhancement. A. RESENTENCING PETITION AND EVIDENTIARY HEARING In 2019, defendant petitioned for resentencing under former section 1170.95 (now § 1172.6), and the trial court issued an order to show cause. Defendant’s petition was consolidated with a similar petition filed by coparticipant Alfred Martinez for purposes of a joint evidentiary hearing, at which the following testimonial and documentary evidence was presented. 1. Defendant’s Interrogation Statements A San Jose Police Department detective testified at defendant’s preliminary hearing in 2003 about an interview with defendant following Giardino’s homicide. (The preliminary hearing transcript was admitted as an exhibit in the § 1172.6 proceedings.) Defendant waived his Miranda rights and agreed to speak with the detective. Defendant told the detective he went to Giardino’s apartment with Ballard and Martinez to steal 2