People v. Barrientos CA2/7 ( 2021 )

Filed 3/26/21 P. v. Barrientos CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301531
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA474073)
v.
JEFFREY BARRIENTOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Affirmed.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and Gary A. Lieberman, Deputy
Attorney General for Plaintiff and Respondent.
____________________
INTRODUCTION
A jury convicted Jeffrey Barrientos of attempted murder and
possession of a firearm by a felon. The jury found true allegations
that the attempted murder was willful, deliberate, and
premeditated, and that Barrientos personally and intentionally
discharged a firearm.
Barrientos contends that substantial evidence does not
support the jury’s findings of premeditation and deliberation.
Barrientos also argues the prosecutor committed misconduct in his
closing argument and rebuttal closing argument by allegedly
misstating the burden of proof. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Information
The information charged Barrientos with attempted willful,
deliberate, and premeditated murder in violation of Penal Code1
sections 664 and 187, subdivision (a) (count 1), and possession of a
firearm by a felon (count 2). The information alleged that
Barrientos personally used and intentionally discharged a firearm
within the meaning of section 12022.53, subdivisions (b) and (c),
and personally and intentionally discharged a firearm which
caused great bodily injury within the meaning of section 12022.53,
subdivision (d). The information alleged that Barrientos had been
previously convicted of a serious or violent felony within the
meaning of the three strikes law (§§ 667, subds. (b)-(j), 1170.12),
which was a serious felony under sections 667, subdivision (a)(1),
and 1192.7 and/or a violent felony under section 667.5, subdivision
(c). It also alleged that Barrientos had served three prior prison
terms within the meaning of section 667.5, subdivision (b).
1 All further statutory references are to the Penal Code.
2
Barrientos pleaded not guilty to the charges and denied the special
allegations.2
B. The Prosecution Case
On November 11, 2018 Jesus Alcorta lived in a recreational
vehicle (RV) with his girlfriend Tanya and her baby Jordan.3
Alcorta and Tanya had been together “on and off” for 10 years.
Alcorta believed that Barrientos was Jordan’s biological father.
Tanya had an agreement with Barrientos to permit him to see
Jordan “once in a while.”
Before November 11, 2018 Alcorta had seen photographs of
Barrientos on Facebook. Alcorta had also seen text messages
Barrientos and Tanya had exchanged about Jordan, and Facebook
messages between Barrientos and Tanya. Alcorta was suspicious
about the text messages and about Tanya’s relationship with
Barrientos. Alcorta had seen Tanya with Barrientos from a
distance once before November 11, 2018.
On November 11 at approximately 9:00 a.m., Alcorta was
cleaning his van, which was parked near the RV. At the time
Alcorta used crystal methamphetamine daily, and was under the
influence that morning, but “was aware” of what was happening.
A friend told him that a person had run inside the RV. Alcorta,
2 Barrientos admitted the prior conviction allegation, and the
court found it true. Barrientos also stipulated for purposes of the
felon in possession of a firearm charge that he had previously been
convicted of a felony.
3 Alcorta testified that, at the time of his trial testimony, he
was in jail serving time for “driving without a vehicle license,”
which Alcorta stated was a felony. Alcorta also testified that he
had “had maybe a couple other felony convictions in the past,” but
had never been convicted of a violent crime.
3
believing it could be a thief who might harm Tanya and Jordan,
ran to the RV, not knowing who was inside.
As Alcorta stepped into the RV, he saw Tanya lying on the
floor and Barrientos pulling her by her hair. Barrientos turned
towards Alcorta and “a second or two” later, shot him in the arm.
Barrientos fired the gun with his left hand. He was wearing a
blue Dodgers cap. When Barrientos fired, Alcorta’s arm was
raised near his chin and was six to eight inches from his face.
Alcorta testified he was “100 percent” confident it was Barrientos
who shot him.
After the shooting, Alcorta ran out of the RV and down the
street. As he ran, he heard nine more gunshots—three sets of
three shots. Alcorta testified, “I know somebody was chasing me.
I was getting shot at. . . . I know I was being chased.”
Alcorta ran to a nearby gas station and told the attendant he
had been shot. The attendant called the police.
Los Angeles Police Officer Claire Smith responded to the gas
station and spoke with Alcorta. Alcorta told her “his girlfriend’s
baby daddy” had shot him. Alcorta described the shooter as being
bald and having a goatee. Alcorta told Smith that “his girlfriend’s
baby’s father goes by the nickname of ‘Lefty’ and hangs out in the
area of Alvarado . . . and also possibly has a first name of Jeffrey.”
Alcorta identified a photograph of Barrientos as the person who
shot him.
The shot went through Alcorta’s arm, leaving a scar. The
wound did not require stiches, staples, surgery, or a cast.
Los Angeles Police Officer Adrian Pop responded to the RV.
Officers made numerous commands for any occupants of the RV to
exit. After 15 to 20 minutes, a woman and a little boy exited. The
officers entered the RV. They did not find any other people in the
RV, and they did not find any evidence of a shooting in the RV.
4
The officers found two spent bullet casings and a live bullet
outside the RV. The officers found bullet holes in two nearby cars.
On November 11, 2018 Katherine Romero’s brother Edwin
Romero woke her because he had heard six gunshots. Katherine
and Edwin saw police officers outside, so they viewed their home
security footage to see what had occurred. Edwin described one of
the videos:
“Right here where the black SUV and the red pickup
is, there’s an RV stationed there. After hearing a
gunshot and checking the system, I witnessed an
individual coming out from this side of the RV. . . . To
the right coming to the front of it and then crossing
the street . . . .”
Edwin testified that one of the videos showed the man enter a
vehicle. The man appeared to be wearing a blue Dodgers cap.
On December 31, 2018 Officer Luis Martin arrested
Barrientos near Alvarado Street and Temple Street. On
January 9, 2019 officers showed Edwin Romero a six-pack
photographic display. Edwin circled two photographs, one of
which depicted Barrientos, as closely resembling the person he
saw in the security video. On January 10, 2019 Katherine
identified Barrientos in a six-pack photographic display. She
wrote: “After reviewing the video, the suspect in photo number 4
was seen returning to the trailer and exiting several minutes later
getting into a two-door vehicle that was parked in front of our
house.”
C. The Defense Case
Barrientos’s sister, Nathalie Barrientos, identified
photographs she had taken of Barrientos on November 22, 2018.
She testified that Barrientos had hair in the photographs.
Nathalie also testified that Barrientos is right-handed.
5
Dr. Ryan O’Connor, an emergency room physician, testified
that chronic use of methamphetamine “can be associated with
delusionary thought[,] hallucinations, distortion of perception,
paranoia, violent behavior, [and] emotional liability [sic] where one
second you seem kind of normal and the next minute you’re kind of
angry.”
D. The Verdict and Sentencing
The jury found Barrientos guilty of attempted murder and
possession of a firearm by a felon. The jury found true the
allegations that the attempted murder was willful, deliberate, and
premeditated, and that Barrientos personally and intentionally
discharged a firearm within the meaning of section 12022.53,
subdivision (c). The jury found not true the allegation that
Barrientos personally and intentionally discharged a firearm
which caused great bodily injury within the meaning of section
12022.53, subdivision (d).
The trial court sentenced Barrientos to an aggregate term of
34 years to life in prison. The court imposed a life sentence with a
minimum parole eligibility of 14 years pursuant to the three
strikes law. The court imposed a consecutive term of 20 years
pursuant to section 12022.53, subdivision (c), for the firearm
enhancement. The court imposed the middle term of two years for
the firearm possession conviction and stayed that term pursuant
to section 654. The court imposed five years pursuant to section
667, subdivision (a), and three years pursuant to section 667.5,
subdivision (b); the court struck both of those sentences.
DISCUSSION
A. Premeditation and Deliberation
Barrientos argues substantial evidence does not support the
jury’s findings of premeditation and deliberation. He contends the
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shooting was spontaneous and that the jury’s premeditation and
deliberation finding should be stricken.
1. Applicable Law
The People charged Barrientos with attempted murder and
alleged he committed the crime willfully, deliberately, and with
premeditation within the meaning of section 664, subdivision (a).
“The very definition of ‘premeditation’ encompasses the idea that a
defendant thought about or considered the act beforehand.”
(People v. Pearson (2013) 56 Cal.4th 393, 443 (Pearson);
accord, People v. Boatman (2013) 221 Cal.App.4th 1253, 1264
(Boatman).) “ ‘Deliberate’ means ‘ “ ‘ “formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ” ’ ”
(Boatman, at p. 1264; accord, People v. Houston (2012) 54 Cal.4th
1186, 1216 (Houston).) “Thus, ‘ “[a]n intentional killing is
premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or
rash impulse.” ’ ” (Boatman, at p. 1264; see Pearson, at p. 443.)
“Courts have also emphasized that ‘ “ ‘[t]he process of
premeditation and deliberation does not require any extended
period of time. “The true test is not the duration of time as much
as it is the extent of the reflection. Thoughts may follow each
other with great rapidity and cold, calculated judgment may be
arrived at quickly.” ’ ” ’ ” (Boatman, supra, 221 Cal.App.4th at
p. 1265; accord, Houston, supra, 54 Cal.4th at p. 1216.)
In People v. Anderson (1968) 70 Cal.2d 15, the Supreme
Court identified three types of evidence—evidence of planning
activity, preexisting motive, and manner of killing—to consider in
determining whether the evidence supports findings of
premeditation and deliberation. (People v. Mendoza (2011) 52
Cal.4th 1056, 1069; People v. Solomon (2010) 49 Cal.4th 792, 812.)
7
The Supreme Court in Anderson “ ‘ “did not purport to establish an
exhaustive list that would exclude all other types and
combinations of evidence that could support a finding of
premeditation and deliberation.” ’ ” (Mendoza, at
p. 1069; Solomon, at p. 812.) Anderson nevertheless provides a
useful framework for considering the sufficiency of evidence of
premeditation and deliberation. (See Mendoza, at
p. 1069; Solomon, at p. 812.)
“ ‘On appeal we review the whole record in the light most
favorable to the judgment to determine whether it
discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ ” (People v. Abilez (2007) 41 Cal.4th at 472, 504;
accord, People v. Jackson (2016) 1 Cal.5th 269, 345.) “ ‘The
standard of review is the same in cases in which the People rely
mainly on circumstantial evidence.’ ” (Abilez, at p. 504; see People
v. Jones (2013) 57 Cal.4th 899, 960.) “ ‘ “If the circumstances
reasonably justify the trier of fact’s findings, the opinion of the
reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of
the judgment.” ’ ” (Abilez, at p. 504; accord, Jones, at p. 960.)
2. Substantial Evidence Supports the Jury’s Findings of
Premeditation and Deliberation
Substantial evidence supports the jury’s findings of
premeditation and deliberation. Barrientos had a preexisting
motive to harm Alcorta because Barrientos and Alcorta were
involved with the same woman. Indeed, at the time of the
shooting, Alcorta lived with Tanya and Barrientos’s young son in
the RV where the first shooting occurred.
8
The record also contains evidence that Barrientos planned
for at least the possibility of a violent confrontation at the RV
because he took a loaded gun to the RV. (See People v. Lee (2011)
51 Cal.4th 620, 636 [“defendant brought a loaded handgun with
him on the night Mele was killed, indicating he had considered the
possibility of a violent encounter”]; People v. Watkins (2012) 55
Cal.4th 999, 1026 [sufficient evidence of planning shown where
defendant carried loaded gun to position from which he shot at
victim]; see also Pearson, supra, 56 Cal.4th at p. 443
[premeditation exists where defendant “thought about or
considered the act beforehand”].)
Moreover, Barrientos did not fire just one shot at Alcorta.
When Alcorta fled the RV after the first shooting, Barrientos
chased him and continued firing at him. Barrientos could have
stopped shooting after the first shot, but instead he chose to
extend the episode by pursuing Alcorta and shooting at him
repeatedly. (See People v. Sandoval (2015) 62 Cal.4th 394, 425
(Sandoval) [“[t]he fact that the manner of killing is prolonged . . .
supports an inference of deliberation”]; People v. Koontz (2002) 27
Cal.4th 1041, 1081 [killing was deliberate and premeditated where
the defendant “pursued [the victim] and persisted in the
argument”]; People v. Wells (1988) 199 Cal.App.3d 535,
541 [manner of killing evidenced premeditation and deliberation
where defendant fired warning shot in air then ran after victim
and shot him].)
There is no evidence Barrientos acted out of fear or passion
in response to something Alcorta did or said. (See Sandoval,
supra, 62 Cal.4th at p. 425 [“[t]here is little indication that the
murder was rash and impulsive, as when a defendant acts out of a
fear or passion in response to a provocation that is insufficient to
show an absence of malice”].) There is also no evidence Alcorta
9
was armed or did anything to threaten Barrientos. Barrientos was
the aggressor; he fired at Alcorta in the confined space of the RV,
hitting Alcorta’s raised arm a few inches from Alcorta’s face.
Having shot and wounded Alcorta, Barrientos decided to follow
Alcorta in an attempt to kill him. The record contains substantial
evidence from which a reasonable jury could conclude that the
attempted murder was premeditated and deliberate.
B. Prosecutorial Misconduct
Barrientos next argues the prosecutor committed prejudicial
misconduct in his closing argument and rebuttal closing argument
by allegedly misstating the burden of proof. He contends the
prosecutor improperly suggested that the evidence against
Barrientos was “unbreakable beyond a reasonable doubt” by
comparing the evidence to a “brick wall” and an “unbreakable pile
of sticks.”
1. Applicable Law
“ ‘ “A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or
reprehensible methods to attempt to persuade either the trial
court or the jury.” ’ ” (People v. Seumanu (2015) 61 Cal.4th 1293,
1331-1332 (Seumanu); accord, People v. Cortez (2016) 63 Cal.4th
101, 130.) Bad faith is not required. (See People v. Centeno (2014)
60 Cal.4th 659, 666-667 (Centeno) [“ ‘[t]he term prosecutorial
“misconduct” is somewhat of a misnomer to the extent that it
suggests a prosecutor must act with a culpable state of mind[;] [a]
more apt description of the transgression is prosecutorial error’ ”];
accord, People v. Lloyd (2015) 236 Cal.App.4th 49, 61.)
10
Ordinarily, “ ‘ “[t]o preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and
specific objection and ask the trial court to admonish the jury to
disregard the improper argument.” ’ ” (People v. Charles (2015) 61
Cal.4th 308, 327; accord, People v. Williams (2013) 58 Cal.4th 197,
274.) The forfeiture doctrine does not apply when a request for an
admonition would have been futile or would not have cured the
harm. (Seumanu, supra, 61 Cal.4th at pp. 1328-1329; People v.
Hill (1998) 17 Cal.4th 800, 820 (Hill).)
A conviction will not be reversed for prosecutorial
misconduct that violates state law “ ‘unless it is reasonably
probable that a result more favorable to the defendant would have
been reached without the misconduct.’ ” (People v. Wallace (2008)
44 Cal.4th 1032, 1070-1071; accord, Lloyd, supra, 236 Cal.App.4th
at pp. 60-61.)
2. The Prosecutor’s Closing Argument and Rebuttal
Closing Argument
In his closing argument, the prosecutor stated that he
“want[ed] to propose a metaphor” for how the jury “should think
about” the evidence. The prosecutor explained:
“I’ll give you two metaphors in my comments today
and this will be the first one, that you should think of
evidence as bricks. Each brick building a wall. One
brick by itself does not build that wall. . . . So the
point is, you don’t look at any brick by itself. You
have to look at them all together and see if you have
a wall.”
The prosecutor then played portions of a video that had been
admitted into evidence, described other evidence, and remarked,
“Again, bricks in a wall.” The prosecutor argued that Barrientos
“walked into the RV with the gun ready to go” and that, after
11
shooting Alcorta, chased Alcorta and continued shooting at him.
The prosecutor stated, “All of that, those are all bricks. Those are
some of the bricks.”
The prosecutor concluded his closing argument by telling the
jury:
“You need to look at all the evidence together. Your
job as jurors, the reason we pick ordinary members of
the community is to exercise common sense and draw
reasonable conclusions and consider all of the
evidence together. And when you do that, there can
be no reasonable doubt of what happened on
November 11th and that is that Mr. Barrientos tried
to murder another human being. Thank you.”
In his rebuttal closing argument, the prosecutor stated:
“At the end of the day I said I’d give you two
metaphors. I gave you the brick before, right?
And I’m going to give you a different one now. I
want you to think of the evidence in this case
now as a stack of twigs, okay? Because what
the defense did and what’s very common, you
take each piece of evidence by itself and you
press on it and you say, ‘Oh, look at this
evidence by itself. You have reasonable doubt
about this evidence. Mr. Alcorta, high on meth,
I have reasonable doubt. He said he was bald
or Edwin circled two people, reasonable doubt.’
Well, you know what? If you look at every
single piece of evidence probably in every single
case [sic].
12
Now, he didn’t mention the car. He didn’t
explain to us where we rest on that one. He
has no explanation for the car, but even taking
the car aside, for each piece of evidence you can
always do this exercise and say, like, ‘Well,
what about this? What about that?’ You know,
there’s some [sic] you can make up an
alternative story for why it makes sense or
doesn’t. It’s like a twig, right? Any stick, you
can break one stick, right? That’s not how—
you don’t take each stick and throw it out one
by one. That’s what the defense wants you to
do. That’s not how you treat the evidence,
though. You need to take each stick and pile it
together and what you have here is a pile of
sticks and then see if you can break that stack
of sticks. It’s not whether you can put weight
on one piece of evidence. All this evidence fits
together and when it fits together, it is
unbreakable.
You can come up with imaginary doubt. We
saw 45 minutes of imaginary doubt. That’s not
our exercise here. It’s whether you can come
up with a reasonable doubt or whether or not
the case is proven.”
3. Barrientos Forfeited His Prosecutorial Misconduct
Claim, and the Prosecutor’s Arguments Were Not
Improper
Barrientos argues the prosecutor committed misconduct by
improperly comparing the evidence against Barrientos to a “brick
13
wall” and an “unbreakable pile of sticks.” Barrientos did not object
to any of the allegedly improper remarks. Nothing in the record
indicates that an objection would have been futile or that a prompt
objection and admonition would not have cured the alleged harm.
Accordingly, Barrientos forfeited his claim of prosecutorial
misconduct. (Centeno, supra, 60 Cal.4th at p. 674; People v. Clark
(2011) 52 Cal.4th 856, 960.)
Even if Barrientos had not forfeited the claim, the
prosecutor’s statements did not misstate the burden of proof.
Barrientos claims that the prosecutor’s “brick wall” and “pile of
sticks” arguments improperly suggested that the prosecution had
proved its case, “when in fact [Alcorta’s] testimony was
contradictory and largely uncorroborated.” Determinations about
Alcorta’s credibility, and the resolution of any alleged
inconsistencies in his testimony, were issues for the jury. (People
v. Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact. [Citation.] Moreover, unless the testimony is
physically impossible or inherently improbable, testimony of a
single witness is sufficient to support a conviction.”].)
In addition, during closing argument, the prosecutor
instructed the jury “to look at all the evidence together;” “exercise
common sense and draw reasonable conclusions and consider all of
the evidence together;” and “when you do that, there can be no
reasonable doubt of what happened on November 11th.” In the
rebuttal closing argument, the prosecutor stated that the jury’s
“exercise” was “whether you can come up with a reasonable doubt
or whether or not the case is proven.” These were proper
comments on the reasonable doubt standard. (See People v.
Romero (2008) 44 Cal.4th 386, 416 [“In closing argument the
prosecutor explained that the reasonable doubt standard asks
14
jurors to ‘decide what is reasonable to believe versus unreasonable
to believe’ and to ‘accept the reasonable and reject the
unreasonable.’ Nothing in the prosecutor’s explanation lessened
the prosecution’s burden of proof”].)4
The prosecutor’s arguments were not like those in Centeno,
where the prosecutor displayed a diagram with a geographical
outline of California and argued that, even after hearing
inconsistent and inaccurate testimony, the jury would still have no
reasonable doubt that the state was California. (Centeno, supra,
60 Cal.4th at p. 664.) The prosecutor here did not argue that,
irrespective of the evidence, the jury must nevertheless find the
brick wall constructed or the pile of sticks unbroken. The
prosecutor instructed the jury to “look at . . . all [the bricks]
together and see if you have a wall,” and to determine whether
“each stick” of evidence “fits together and when it fits together, it
is unbreakable.” These arguments did not mislead the jury as to
the burden of proof or the reasonable doubt standard.
Furthermore, the trial court properly instructed the jury as to the
4 Barrientos argues the prosecutor also improperly argued
that the shooting “was a botched robbery or a drug deal,” and that
the defense had a duty to call Tanya to testify and to explain
deficiencies in the evidence The record refutes these contentions.
The prosecutor argued that “a stranger or drug dealer” had not
committed the shooting, and stated that the jury “can’t speculate
about why [Tanya] is not here.” The prosecutor also stated that he
“ha[s] the burden of proof,” but the jury could consider whether the
defense had reasonably explained seemingly inculpatory evidence.
These arguments were proper. (See Centeno, supra, 60 Cal.4th at
p. 673 [“the prosecution can surely point out that interpretations
[of the evidence] proffered by the defense are neither reasonable
nor credible”].)
15
People’s burden of proof beyond a reasonable doubt, and defense
counsel specifically addressed the reasonable doubt standard and
instruction during closing argument. There was no prosecutorial
misconduct.5
5 Barrientos contends the prosecutor’s arguments denied him
due process, and asserts in passing that his counsel’s failure to
object to the prosecutor’s statements constituted ineffective
assistance of counsel. (Centeno, supra, 60 Cal.4th at p. 674 [“ ‘[a]
defendant whose counsel did not object at trial to alleged
prosecutorial misconduct can argue on appeal that counsel’s
inaction violated the defendant’s constitutional right to the
effective assistance of counsel’ ”].)
For the above reasons, the prosecutor’s arguments, even
when considered cumulatively, did not deprive Barrientos of a fair
trial, and Barrientos has not demonstrated that his counsel
rendered ineffective assistance. (See Hill, supra, 17 Cal.4th at
pp. 844-845 [“a series of trial errors, though independently
harmless, may in some circumstances rise by accretion to the level
of reversible and prejudicial error”]; People v. Rivas (2013) 214
Cal.App.4th 1410, 1436 [“[a] claim of cumulative error is in
essence a due process claim”]; Centeno, supra, 60 Cal. 4th at p. 674
[to prevail on ineffective assistance claim, defendant “bears the
burden of showing by a preponderance of the evidence that (1)
counsel’s performance was deficient because it fell below an
objective standard of reasonableness under prevailing professional
norms, and (2) counsel’s deficiencies resulted in prejudice”].)
16
DISPOSITION
The judgment is affirmed.
MCCORMICK, J.
We concur:
PERLUSS, P. J.
FEUER, J.

Judge of the Orange County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17