People v. Barrera CA4/2 ( 2021 )

Filed 10/6/21 P. v. Barrera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
Affirmed.
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, Assistant Attorney General, and Steve
Oetting and Eric A. Swenson, 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 argues the
judge abused his discretion by refusing to modify his sentence. We see no abuse of
discretion and therefore affirm.
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,
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
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felony convictions (§ 667, subd. (a)) and four prior strike convictions. (§§ 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. While the judge did recall
Barrera’s sentence, he didn’t exercise his discretion to strike any of the enhancements and
reimposed the exact same sentence.
Barrera timely appealed.
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II
ANALYSIS
Barrera argues the trial judge abused his discretion in refusing to strike either of
the five-year prior serious felony enhancements, as he had the power to do under the law
as amended by Senate Bill 1393.1 The People disagree, and we agree with the People.2
Senate Bill 1393 amended sections 667, subdivision (a), and 1385, subdivision (b),
to allow a court to exercise its discretion to strike or dismiss a prior serious felony
conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1 & 2.) Before the
amendment, courts were required to impose a five-year consecutive term for “any person
convicted of a serious felony who previously has been convicted of a serious felony.”
(Former § 667, subd. (a)(1).) The statutes left no discretion for a trial judge “to strike any
prior conviction of a serious felony for purposes of enhancement of a sentence under
Section 667.” (Former § 1385, subd. (b).)
1 In his opening brief, Barrera argues the court’s reliance on the preliminary
hearing transcript meant it “was not in a position to know very much about why the crime
occurred or the person committing it.” However, in his reply brief Barrera concedes that
“[i]t is not [his] contention that the superior court ‘erred by relying on the facts adduced
at the preliminary hearing when it made its ruling.’ ” Because Barrera doesn’t claim any
error from the court’s reliance on the preliminary hearing transcript, we do not address
this argument.
2 The People also argue that section 1170, subdivision (d), doesn’t permit a trial
court to modify a sentence entered after a negotiated plea, or that changes to the court’s
discretion don’t apply retroactively to Barrera’s final judgment. Because the court didn’t
modify Barrera’s sentence, and because (as explained below) Barrera’s appeal fails on
the merits, we do not reach these issues.
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“We review a court’s decision to deny a motion to strike a five-year prior serious
felony enhancement for an abuse of discretion. No error occurs if the trial court evaluates
all relevant circumstances to ensure that the punishment fits the offense and the
offender.” (People v. Shaw (2020) 56 Cal.App.5th 582, 587.) “The trial court’s
sentencing discretion must be exercised in a manner that is not arbitrary and capricious,
that is consistent with the letter and spirit of the law, and that is based upon an
‘individualized consideration of the offense, the offender, and the public interest.’ ”
(People v. Sandoval (2007) 41 Cal.4th 825, 847.) On appeal the trial court is
“ ‘ “presumed to have acted to achieve legitimate sentencing objectives” ’ ” and the
decision to impose a particular sentence will not be set aside unless an affirmative
showing is made that the sentence “is so irrational or arbitrary that no reasonable person
could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.)
In exercising this discretion, the trial judge may “consider ‘postconviction factors,
including, but not limited to, the inmate’s disciplinary record and record of rehabilitation
while incarcerated, evidence that reflects whether age, time served, and diminished
physical condition, if any, have reduced the inmate’s risk for future violence, and
evidence that reflects that circumstances have changed since the inmate’s original
sentencing so that the inmate’s continued incarceration is no longer in the interest of
justice.’ ” (People v. McCallum (2020) 55 Cal.App.5th 202, 210.)
Barrera concedes the trial judge didn’t commit a legal error when he exercised his
discretion to reimpose the same sentence. Instead, he argues the error was “more like a
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moral or what might even be described as a cultural error in the decision-making
process.” Barrera argues the “decision to reinstate the original sentence failed to align
itself with the spirit of the law found in the recent amendments” to section 1170. Barrera
points out that in the 18 years since his conviction his behavior has been exemplary, that
he is now 60 years old, and that at the time of his offense he was—but is no longer—a
repeat methamphetamine user. He argues that these and other factors indicate he is
reformed and unlikely to reoffend, and that the amendments to section 1170 counsel in
favor of leniency.
We agree the amendments to section 1170 show the legislature intended to reduce
the burden of mandatory enhancements on certain inmates for whom these mandatory
sentences are no longer just. We also agree Barrera’s behavior since his conviction shows
real reform, for which we commend him.
However, we cannot agree these factors render the trial court’s sentencing decision
arbitrary, capricious, or irrational. As the trial judge explained, he “saw no mitigating
factors” and felt “[t]his was a vicious attack. It was aggravated in every way that it can be
aggravated.” The judge said he was happy with Barrera’s performance in prison but said
that doesn’t change the seriousness of the crime. Moreover, he pointed out that without
the plea bargain Barrera faced a minimum of 43 years to life, meaning he would not have
even been eligible for parole until his mid-80’s if at all. Accordingly, the trial judge felt
Barrera “received the full benefit of what he bargained for,” and wasn’t inclined to
disturb the bargain.
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Even if we disagree with this judgment or agree that Barrera is deserving of the
court’s mercy, the trial judge didn’t abuse his discretion by resentencing Barrera to the
same sentence he originally received. The judge considered several of the factors
contemplated by section 1170, subdivision (d), but concluded even though these factors
weighed in Barrera’s favor, the negotiated sentence was appropriate. The sentence was
not arbitrary, capricious, or irrational given the facts available. While it’s true the recent
amendments to section 1170, subdivision (d), and other sentencing statutes permit trial
judges to exercise leniency, they don’t compel them to do so.
III
DISPOSITION
We affirm.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
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