People v. Barnette CA3

Filed 1/22/24 P. v. Barnette CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C096140

Plaintiff and Respondent, (Super. Ct. No. 13F04035)

v.

KENNETH BARNETTE,

Defendant and Appellant.

Defendant Kenneth Barnette appeals from the trial court’s order declining to strike two firearm enhancements pursuant to Penal Code section 1385.1 He contends the trial court failed to recognize the scope of its discretion when deciding whether to strike the enhancements. We will affirm.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND We summarize the facts from our opinions in Barnette’s prior appeals, People v. Barnette (Nov. 19, 2018, C079639) [nonpub. opn.] (Barnette I) and People v. Barnette (Nov. 13, 2020, C090884) [nonpub. opn.] (Barnette II). On June 15, 2013, M.C. drove a white Volkswagen Jetta to a gas station in Sacramento. His uncle, Darryl Hill, was in the front passenger seat. In the backseat were M.C.’s brother, as well as M.C.’s 18-month- old daughter. The three men were all in their early 20’s. All gas pumps were being used, so they waited for a pump to open up. When one did, M.C. drove toward the gas pump and turned around to back into position at the pump. As he was backing into position, a silver Infiniti driven by Barnette began backing toward the pump, blocking M.C. from completing the maneuver into place at the pump. M.C. honked at the car, but neither car moved. (Barnette I, supra, C079639.) “Hill got out of the Jetta, telling the others in the car that he was going to ask the driver of the silver Infiniti to move, and walked around the back of the Infiniti, approaching the driver’s side of that car. As Hill approached, he gestured with his hand. Defendant said, ‘Why are you walking up on my car?’ or ‘Why are you walking up on me?’ He got out of the Infiniti and fired a handgun at Hill and at the Jetta six times. Immediately after firing the gun, defendant reentered the Infiniti and drove away.” (Barnette I, supra, C079639.) Hill suffered five gunshot wounds and died on the scene. M.C. and his brother were both struck. (Ibid.) A jury found Barnette guilty of murder (§ 187, subd. (a)), shooting at an occupied vehicle (§ 246), and attempted murder (§§ 187, subd. (a), 664). As to the murder and attempted murder convictions, the jury found true firearm allegations under section 12022.53, subdivision (d). (Barnette I, supra, C079639.) “The trial court sentenced defendant to a determinate five-year term (the middle term) for shooting at an occupied vehicle. It also sentenced defendant to an indeterminate term consisting of 25 years to life for the murder, life with the possibility of parole for attempted murder, and two terms