People v. Barragan CA2/4 ( 2021 )

Filed 12/13/21 P. v. Barragan CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304388
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA242184)
v. OPINION FOLLOWING
TRANSFER FROM
ADRIAN BARRAGAN, SUPREME COURT
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Robert J. Perry, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta and Matthew Rodriquez, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Amanda V. Lopez and Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
This matter is before us following the Supreme Court’s transfer
with directions for this court to vacate our prior decision (People v.
Barragan (June 22, 2021, B304388) [nonpub. opn.]), and reconsider the
cause in light of People v. Lewis (2021) 11 Cal.5th 952 (Lewis). We
vacate our opinion in Barragan I. After reconsidering the cause,
however, we find that the court’s error in summarily denying defendant
and appellant Adrian Barragan’s motion for resentencing (Pen. Code,
§ 1170.95)1 was non-prejudicial, and affirm the judgment.
FACTUAL BACKGROUND2
Appellant and his cousin Daniel Barragan are members of the
Eastside Clover Street gang.3 The murder victim, Frank Ibarra, had
been affiliated with the gang when he was younger but had since
disassociated himself from it. Ibarra still lived in the gang’s territory,
and on many prior occasions, had been physically harassed by appellant
and other gang members.
On the evening of January 17, 2003, Ibarra and his two
companions (Ruben Colunga and Ramon Lopez) went to a local Jack-in-
the-Box restaurant. After pulling his vehicle into the drive-thru lane,
1 Undesignated statutory references are to the Penal Code.
2 We recite the factual and procedural background from appellant’s
direct appeal in People v. Barragan (Nov. 29, 2005, B175130) [nonpub.
opn.] (Barragan I).
3 For ease of reading, we refer to Daniel Barragan by his first name.
Daniel is not a party to this appeal.
2
Ibarra placed an order. As the three men waited, Ibarra saw appellant
next to him, seated in the driver’s seat of a sedan. Scared and shocked,
Ibarra pointed out appellant to his companions. Appellant was
accompanied by two other people—his cousin Daniel in the front
passenger seat, and an unidentified individual in the back seat.
Appellant stared at the men in a threatening manner.
Ibarra quickly tried to drive away from the restaurant, but
appellant moved his car to block him. Ibarra drove toward another exit.
While Ibarra’s vehicle passed by appellant’s, appellant called Ibarra
and his companions names. Then, “[appellant] made a U-turn in his car
and followed Ibarra’s vehicle around the restaurant parking lot. As
Ibarra was about to exit onto the street, [Daniel] leaned out of the front
passenger window and shot multiple times at Ibarra’s vehicle.”
Colunga was wounded, and Ibarra was killed by a single gunshot
wound to the head. His vehicle crashed into a tree. The impact of the
crash injured Lopez. After the crash, shots continued to come from
appellant’s sedan. Appellant then drove away.
Police responded to the scene and identified three bullet holes in
Ibarra’s vehicle. Officers recovered six expended 9 millimeter
cartridges, one live 9 millimeter cartridge, and two spent 9 millimeter
bullets. During the course of several interviews, the surviving victims
made photographic identifications of appellant and Daniel.
Appellant’s girlfriend testified that she had lent her sedan to
appellant on the night of the shooting. From a photograph taken from a
Jack-in-the-Box surveillance tape, appellant’s girlfriend identified
appellant as the driver of the sedan.
3
PROCEDURAL BACKGROUND
By information in November 2003, appellant and Daniel were
charged with murder (§ 187, subd. (a), count 1), two counts of attempted
murder (§ 664/187, subd. (a), counts 2-3), and shooting at an occupied
motor vehicle (§ 246). The information also alleged, inter alia, that:
appellant intentionally killed the victim while actively participating in
a criminal street gang (§ 190.2, subd. (a)(22)); the murder was
intentional and perpetrated by means of discharging a firearm from a
motor vehicle (§ 190.2, subd. (a)(21)); and Daniel personally and
intentionally discharged or used a firearm causing great bodily injury or
death (§ 12022.53, subd. (d)).
Appellant and Daniel were jointly tried. Neither appellant nor
Daniel testified. According to expert testimony, the shooting was gang
motivated, as it bolstered the defendants’ reputations within the
Eastside Clover Street gang. During closing argument, appellant’s trial
counsel argued that despite driving the sedan during the shooting,
appellant lacked the requisite mental state to be liable as an aider and
abettor to Ibarra’s murder. The prosecution argued that Daniel was the
actual shooter, and appellant was liable as an aider and abettor to
drive-by murder.
By general verdict in 2004, a jury found appellant guilty of first
degree murder, attempted willful, deliberate and premeditated murder,
and shooting at an occupied vehicle. The jury also found true the gang-
murder special circumstance and firearm enhancement allegation. The
jury returned no verdict on the special circumstance allegation that the
murder was perpetrated by means of discharging a firearm from a
4
motor vehicle. In a bifurcated proceeding, the trial court sentenced
appellant to an overall term of life imprisonment without the possibility
of parole, plus 25 years for the firearm enhancement.
In appellant’s direct appeal in 2005, we reversed his two
convictions for attempted murder based on instructional error,4 but
otherwise affirmed the judgment. In 2018, appellant filed a petition for
writ of habeas corpus seeking relief under People v. Chiu (2014) 59
Cal.4th 155, 158 (Chiu). The trial court denied the petition, and
explained that the jury had not been instructed on aider and abettor
liability for first degree premeditated murder or under the natural and
probable consequences doctrine.
On November 14, 2019, appellant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Appellant requested
that counsel be appointed on his behalf.
The day after the petition was filed, and before appointing counsel
or receiving briefing by the parties, the trial court summarily denied it
4 During deliberations, the jury submitted a question to the court as
follows: “Is a defendant guilty of attempted murder of person B if he or she:
[¶] . . . [i]ntends to kill person A but wounds person B?” As to both
defendants, the court gave an instruction on the kill zone theory of attempted
murder (CALJIC No. 8.66.1). We found the supplemental instruction
properly given as to Daniel, but found submission of the instruction as to
appellant to be in error. (See Barragan I, supra, at p. 12 [the instruction
“permitted the jury to convict [appellant] of attempted murder on a legally
unsound basis: vicarious liability for his codefendant’s intent to create a ‘kill
zone’”].)
5
in a written memorandum. After setting forth the facts of the case as
we discussed in Barragan I, the court found that the “trial evidence
clearly established, and the jury found, that [appellant] acted with an
intent to kill and was a major participant who acted with reckless
indifference to human life.” Based on these findings, the court
concluded that appellant was ineligible for relief as a matter of law.
In his prior appeal People v. Barragan (June 22, 2021, B304388)
[nonpub. opn.] (Barragan II), appellant argued the trial court erred by
denying his petition without appointing him counsel, as he had
requested, and by engaging in factfinding to determine his ineligibility
for relief. We affirmed the judgment. In doing so, we held that while
the trial court’s engaging in factfinding was in error, the conclusion it
reached was not. As the non-shooter in this case, appellant was tried as
an aider and abettor (CALJIC Nos. 3.00-3.01), and the jury was
instructed on three theories of first degree murder: premeditated
murder, drive-by murder, and a felony murder (based on a modification
of standard instructions) for the discharge of a firearm from a motor
vehicle (CALJIC Nos. 8.20, 8.25.1, 8.21). To convict appellant of first
degree murder as an aider and abettor under these theories, we found
that the jury was required to find that appellant shared the intent of
the perpetrator to kill the victim. Because these theories remain valid
in the wake of Senate Bill No. 1437 (S.B. 1437) (see § 189, subd. (e)), we
found appellant was ineligible for relief as a matter of law.
The Supreme Court granted appellant’s petition for review, and
ordered us to vacate our decision in Barragan II and reconsider the
matter in light of Lewis, supra, 11 Cal.5th 952.
6
DISCUSSION
Following the Supreme Court’s transfer of the matter, appellant
filed a supplemental opening brief in which he argued reversal is
required pursuant to Lewis, because the trial court committed error by
summarily denying his petition for resentencing without appointing
counsel.
Having reconsidered the matter, we agree with appellant that the
trial court erred. (See Lewis, supra, 11 Cal.5th at pp. 961–970.)
Consistent with Lewis, however, we find the error harmless, as the only
theories on which appellant was tried and convicted required a finding
that he intended to kill the victim.
1. Governing Law
The legislature enacted S.B. 1437 “to amend the felony murder
rule and the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a person who
is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e); Lewis, supra, 11 Cal.5th at p. 959.)
Under the revised section 188, subdivision (a)(3), “‘[m]alice shall
not be imputed to a person based solely on his or her participation in a
crime.’” (People v. Gentile (2020) 10 Cal.5th 830, 843.) Section 1170.95,
as enacted by S.B. 1437, permits individuals who were convicted of
felony murder or murder under the natural and probable consequences
doctrine, but who could not be convicted of murder following S.B. 1437’s
7
changes to sections 188 and 189, to petition the sentencing court to
vacate the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95 must
include inter alia a request for appointment of counsel, should the
petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 provides in part: “The court
shall review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions of
this section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. . . . If the petitioner makes
a prima facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” The remainder of section 1170.95 sets
forth the procedure for responding to, and the hearing on, the order to
show cause, as well as post-hearing matters.
Our Supreme Court in Lewis held that petitioners are entitled to
the appointment of counsel upon the filing of a facially sufficient
petition, and that “only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of
conviction to determine whether ‘the petitioner makes a prima facie
showing that he or she is entitled to relief.’ [Citation.]” (Lewis, supra,
11 Cal.5th at p. 957.) However, the Court also concluded that “the
deprivation of [the] right to counsel under subdivision (c) [is] state law
error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d
818 (Watson).” (Id. at pp. 957–958.) Under this standard, “a petitioner
‘whose petition is denied before an order to show cause issues has the
burden of showing “it is reasonably probable that if [he or she] had been
8
afforded assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.”’ [Citation.]” (Id. at
p. 974.) When conducting such harmless error analysis, reviewing
courts may rely on the petitioner’s record of conviction, including but
not limited to jury instructions establishing the petitioner’s ineligibility
for relief as a matter of law. (See id. at pp. 973–974; People v. Daniel
(2020) 57 Cal.App.5th 666, 670, 676–677, rev. dism. Dec. 1, 2021,
S266336.)
2. The Failure to Appoint Counsel and Accept Briefing Was Harmless
A. Relevant Jury Instructions
The jury was instructed on three alternative theories of first
degree murder. The first two theories were premeditated murder and
drive-by murder under the standard CALJIC instructions (CALJIC Nos.
8.20, 8.25.1).5 The third theory was a version of felony murder based on
the discharge of a firearm from a motor vehicle. As to this theory, the
trial court gave a modified version of CALJIC No. 8.21, as follows:
“The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or
5 CALJIC No. 8.20 provided inter alia that “[a]ll murder which is
perpetrated by any kind of willful, deliberate and premeditated killing with
express malice aforethought is murder of the first degree.”
CALJIC No. 8.25.1 provided: “Murder which is perpetrated by means
of discharging a firearm from a motor vehicle intentionally at another person
outside of the vehicle when the perpetrator specifically intended to inflict
death, is murder of the first degree.”
9
attempted commission of the crime [of] discharging a firearm from a
motor vehicle intentionally at another person outside of the vehicle with
the intent to inflict death is murder of the first degree when the
perpetrator had the specific intent to commit that crime. [¶] The
specific intent to commit said offense and the commission or attempted
commission of that crime must be proved beyond a reasonable doubt.”
Regarding these theories of culpability, the court further
instructed the jury on the following principles of aiding and abetting:
“Persons who are involved in committing a crime are referred to
as principals in that crime. . . . Principals include: [¶] 1. Those who
directly and actively commit the act constituting the crime, or [¶] 2.
Those who aid and abet the commission of the crime.” (CALJIC No.
3.00.) “A person aids and abets the commission of a crime when he: [¶]
(1) With knowledge of the unlawful purpose of the perpetrator, and [¶]
(2) With the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and [¶] (3) By act or advice
aids, promotes, encourages or instigates the commission of the crime.
[¶] . . . [¶] Mere presence at the scene of a crime which does not itself
assist the commission of the crime does not amount to aiding and
abetting. [¶] Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.” (CALJIC
No. 3.01.)
By general verdict, the jury found appellant guilty of first degree
murder. The verdict form did not specify which theory of first degree
murder it found to be true.
10
B. Analysis
It is undisputed that appellant was tried and convicted not as the
actual killer, but as an aider and abettor. (See Barragan I, supra, at
pp. 2, 7.) It is also undisputed that the jury was instructed on three
different theories of first degree murder against both defendants:
(1) premeditated murder; (2) drive-by murder; and (3) felony murder
based on the intentional discharge of a firearm from a motor vehicle.
Appellant does not dispute that he would be ineligible for relief as
a matter of law if he were convicted as an aider and abettor under the
first two theories of culpability. We find the concession well taken.
(See Chiu, supra, 59 Cal.4th at p. 166 [premeditated murder]; People v.
Chavez (2004) 118 Cal.App.4th 379, 386–387 [drive-by murder]
(Chavez).)
Appellant contends, however, that there is “at the very least, a
reasonable probability that [he], were he to be assisted by appointed
counsel . . . would make a ‘prima facie showing’ of eligibility for
resentencing relief” at this stage of the petitioning proceedings. Such
reasonably probability exists, appellant contends, because the jury
returned a general verdict for first degree murder, and could have
convicted him as an aider and abettor under the third theory of liability
for felony murder based on the intentional discharge of a firearm from a
motor vehicle. He asserts that his liability for first degree murder as an
aider and abettor under this theory, as presented in the modified
version of CALJIC No. 8.21, did not require a finding that he intended
to kill. We disagree.
11
An aider and abettor must “‘“share the specific intent of the
perpetrator,”’” meaning he or she must “‘“know[] the full extent of the
perpetrator’s criminal purpose and give[] aid or encouragement with the
intent or purpose of facilitating the perpetrator’s commission of the
crime.” [(People v. Beeman (1984) 35 Cal.3d 547, 560.)]’ (People v.
Prettyman [(1996)] 14 Cal.4th [248,] 259.) What this means here, when
the charged offense and the intended offense—murder . . . —are the
same, i.e., when guilt does not depend on the natural and probable
consequences doctrine, is that the aider and abettor must know and
share the murderous intent of the actual perpetrator.” (People v. McCoy
(2001) 25 Cal.4th 1111, 1118 (McCoy), fn. omitted.)
The jury in this case was instructed on these very principles of
aiding and abetting. (See CALJIC No. 3.01.) Because the target offense
listed in the felony murder instruction required the perpetrator to
discharge a firearm “with the intent to inflict death,” to convict
appellant of first degree murder under this theory as an aider and
abettor, the jury was required to find beyond a reasonable doubt that
appellant knew the full extent of the unlawful purpose of the
perpetrator and gave aid or encouragement with the intent or purpose
of facilitating the commission of the drive-by murder. (Ibid.) In other
words, the jury was required to find that he knew and shared the
murderous intent of the actual shooter. (Compare CALJIC No. 3.01
12
with McCoy, supra, 25 Cal.4th at p. 1118; see Chavez, supra, 118
Cal.App.4th 379, 387.) 6
Anticipating this result, appellant contends the modified
instruction is ambiguous because it contemplates a conviction for a
killing “whether intentional, unintentional or accidental.” He asserts
that the word “unintentional” as one of three options for an unlawful
killing “is ambiguous and uncertain as to whose state of mind it refers
to.”
Neither the jury nor this reviewing court construes in isolation a
sentence fragment appearing in a jury instruction. Indeed, the trial
court in this case instructed the jury to do the very opposite: “Do not
single out any particular sentence or any individual point or instruction
and ignore the others. Consider the instructions as a whole and each in
light of all the others.” (CALJIC No. 1.01.) We also review the
instructions as a whole, and presume that the jurors are intelligent and
able to understand and correlate the trial court’s instructions to the
facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130; People v.
Cain (1995) 10 Cal.4th 1, 36.)
6 It is for this reason that the Fifth District held that “the drive-by-
shooting clause added to section 189 . . . is not an enumerated felony for
purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App.4th at
p. 386; see id. at p. 385 [“Although the drive-by-shooting clause appears
immediately after the list of enumerated felonies in section 189, it is clear
from the content of the clause that drive-by shooting is not part of that list.
The drive-by-shooting clause requires an ‘intent to inflict death’ which is
never an element of felony murder”].) We do not endeavor to analyze the
propriety of the modified felony murder instruction in this case, as appellant
did not raise this claim of error in his direct appeal. (See People v. Allison
(2020) 55 Cal.App.5th 449, 461.)
13
When the instructions are viewed as a whole, it is clear the word
“unintentional” did not mislead the jury into shirking its responsibility
to analyze appellant’s conduct and state of mind as an aider and abettor
to drive-by murder. As we have discussed, the mental state required for
that theory of liability was the specific intent to kill. Likewise, in
convicting appellant of first degree murder, the jury found true the
special circumstance allegation that appellant intentionally killed the
victim while he was an active participant in a criminal street gang
(§ 190.2, subd. (a)(22)). This special circumstance requires a finding of
an intent to kill. (See ibid. [“[t]he defendant intentionally killed the
victim while the defendant was an active participant in a criminal
street gang”].) This confirms that appellant’s conviction was necessarily
based on his intent to kill the victim as an aider and abettor in the
murder.
In sum, because all three theories of first degree murder in this
case required a finding that appellant harbored an intent to kill, he
would still be convicted of murder under the amended versions of
sections 188 and 189, rendering him ineligible for relief as a matter of
law. (§ 1170.95, subd. (a)(3).) Therefore, appellant has not, and cannot,
show a reasonable probability that his petition would not have been
summarily denied even if the trial court had appointed counsel.
//
//
//
//
14
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
15