People v. Barajas CA5 ( 2024 )

Filed 2/15/24 P. v. Barajas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F085302
Plaintiff and Respondent,
(Super. Ct. No. SC054409A)
v.
SAMUEL BARAJAS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ismah
Ahmad, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Samuel Barajas filed a petition for resentencing pursuant to former
Penal Code1 section 1170.95 (now section 1172.6). The trial court denied the petition,
finding defendant failed to establish a prima facie claim for relief. On appeal, defendant
contends he filed a facially sufficient petition. For the reasons set forth below, we affirm
the trial court’s order.
BACKGROUND
In an information dated July 6, 1993, defendant was charged with multiple
offenses, including (1) conspiring with Fidel Arrez-Garcia, an individual named
“ ‘Jose,’ ” and “ ‘other unnamed or unknown’ ” confederates to murder undercover
narcotics officer Medina with use of a firearm, to commit robbery with use of a firearm,
to kidnap for the purpose of robbery with use of a firearm, to commit assault with a
firearm, and to possess cocaine for sale (§ 182, subd. (a)(1) [count one]); (2) “willfully
and unlawfully, deliberately and with premeditation and malice aforethought” murdering
Arrez-Garcia (§ 187, subd. (a) [count two]); and (3) “willfully and unlawfully,
deliberately and with premeditation and malice aforethought” attempting to murder
Medina (§§ 187, subd. (a), 664 [count three]). In connection with count one, the
information alleged defendant personally used a firearm (§ 12022.5, subd. (a) & former
subd. (c)) and—in furtherance of the conspiracy—“got out of [a] blue Pontiac carrying a
stolen .380 caliber semi-automatic Colt Mustang Pocketlite pistol,” “went behind
undercover officer Medina as he was struggling with Fidel Arrez-Garcia,” and “placed a
gun barrel to the back of undercover officer Medina’s head and forced him into a position
bent over from the waist.” In connection with counts two and three, the information
alleged defendant personally used a firearm (§ 12022.5, subd. (a)).
1 Unless otherwise indicated, subsequent statutory citations refer to the Penal
Code.
2.
At a September 21, 1993 readiness hearing, defendant waived reading of the
information and received permission to withdraw a plea of not guilty and enter a plea of
no contest. The hearing transcript detailed the following exchange:
“THE COURT: All right. Count 1 of the information alleges that
between April 6th, 1993 and April 7th, 1993, you, Mr. Barajas, conspired
with Fidel Arrez, a person named Jose and other unnamed co-conspirators
to violate one or more of the following laws: One, the murder of
[undercover officer] Medina; two, robbery with the use of a firearm; three,
kidnap for purpose of robbery with use of a firearm; four, assault with a
deadly weapon, firearms; five, possession of two kilograms of cocaine for
sale.
“And that in the course of conspiring to do so the following overt
acts were committed: That on April 7th, 1993, you got out of a blue
Pontiac carrying a stolen .380 caliber semi-automatic Colt Mustang pistol
. . . ; . . . that on that same day you went behind undercover Officer Medina
as he struggled with Fidel Arrez; and . . . that on that same day you placed a
gun barrel to the back of undercover Officer Medina’s head and forced him
into a bent over position.
“To the charge in Count 1 of conspiracy to commit those crimes,
how do you plead, sir?
“THE DEFENDANT: No contest.
“THE COURT: And to those three overt acts which I have just
recited, . . . do you admit or deny the overt acts?
“THE DEFENDANT: I admit them.
“THE COURT: All right. It is alleged that in the commission of the
conspiracy you personally used a firearm within the meaning of Penal Code
Section 12022.5 (a) and 12022.5 (c). And do you admit that allegation?
“THE DEFENDANT: Yes. [¶] . . . [¶]
“THE COURT: All right. As to Count 2, the allegation then is –
People are going to move to amend Count 2 before I take the plea?
“[PROSECUTOR]: Yes. People will move as to Count 2 to amend
to read violation of Penal Code Section 187 subparagraph (a) second or
second degree murder.
3.
“THE COURT: And I believe that also would involve the striking
of the words and malice aforethought, would it not?
“[PROSECUTOR]: Yes, it would.
“THE COURT: All right. And you stipulate to that amendment thus
making it a second degree murder?
“[DEFENSE COUNSEL]: I do, your Honor.
“THE COURT: All right. The charge in Count 2 as amended is that
on or about April 7th, 1993, you willfully and unlawfully, deliberately and
with premeditation murdered Fidel Arrez in violation of Penal Code
Section 187(a) – excuse me, strike that. In violation of Penal Code
Section –
“[PROSECUTOR]: I have it as 187(a). I would have to check that.
I think it still would be a second degree.
“THE COURT: Yes, that’s right. 187(a), it being a second degree
murder, a murder perpetrated by provocative acts, how do you plead?
“THE DEFENDANT: No contest.
“THE COURT: And it is alleged that in the commission of this
offense you personally used a firearm within the meaning of Penal Code
Section 12022.5 (a). Do you admit that allegation?
“THE DEFENDANT: No contest.
“THE COURT: All right. Accept that. Count 3 alleges that on or
about April 7th, 1993, you willfully and unlawfully, deliberately, with
premeditation and malice aforethought attempted to murder [undercover
officer] Medina, in violation of Penal Code Section 664, showing it as an
attempt, 187(a), an attempted first degree murder, a felony. How do you
plead to that charge?
“THE DEFENDANT: No contest.
“THE COURT: It is alleged that you used a firearm in the
commission of that offense within the meaning of Penal Code Section
12022.5 (a). Do you admit that allegation?
“THE DEFENDANT: No contest.”
4.
At a November 4, 1993 sentencing hearing, the trial court imposed life with
possibility of parole—plus four years for the firearm use enhancement—on count three
and a consecutive 15 years to life with possibility of parole—plus four years for the
firearm use enhancement—on count two.2
On April 12, 2022, defendant filed a petition for resentencing pursuant to then-
section 1170.95. He marked the following checkboxes:
“1. A complaint, information, or indictment was filed against me that
allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely
on that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [Citation.]
“2. I was convicted of murder, attempted murder, or manslaughter
following a trial or I accepted a plea offer in lieu of a trial at which I
could have been convicted of murder or attempted murder.
[Citation.]
“3. I could not presently be convicted of murder or attempted murder
because of changes made to Penal Code §§ 188 and 189, effective
January 1, 2019. [Citation.]”
Shortly thereafter, per defendant’s request, the trial court appointed counsel to represent
him.
In their opposition, the People argued (1) the petition must be denied as to the
second degree murder conviction because defendant “was convicted of murder under the
provocative act theory, and not under the felony murder rule or the natural and probable
consequences theory”; and (2) the petition must be denied as to the attempted murder
conviction because defendant “was convicted of attempted first degree murder that was
premeditated, willful, and committed with malice afor[]ethought, with personal use of a
2 The trial court imposed 15 years to life—plus eight years for the firearm use
enhancements—on count one and stayed execution thereof pursuant to section 654.
5.
firearm.” (Boldface & capitalization omitted.) Attached to the opposition as supporting
evidence was the transcript of the September 21, 1993 readiness hearing.
Following a November 15, 2022 prima facie hearing, the trial court ruled:
“With the matter before the Court, the record is that the defendant
pled guilty to second-degree murder, he pled guilty to attempted murder, he
pled guilty to conspiracy and numerous allegations. Based upon the
charges the defendant voluntarily pled to, I do not see how a prima facie
case has been established. [¶] . . . [¶] . . . With that, the Court finds there is
no prima facie showing in the petition that’s been filed. The petition is
denied.”
DISCUSSION
I. Legal overview
“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017–
2018 Reg. Sess.)] ‘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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018,
ch. 1015, § 1, subd. (f).) “Through the passage of Senate Bill [No.] 1437 [(2017–2018
Reg. Sess.)] the Legislature effectively eliminated the natural and probable consequences
doctrine as it relates to murder convictions, and reduced the scope of the felony-murder
rule.” (People v. Prado (2020) 49 Cal.App.5th 480, 487.) “To effectuate these changes,
the Legislature amended sections 188 and 189 . . . .” (Ibid.; see §§ 188, subd. (a)(3)
[“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”]; 189, subd. (e) [“A participant
in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which
a death occurs is liable for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual killer, but, with the
6.
intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section 190.2.”].) Senate
Bill No. 1437 (2017–2018 Reg. Sess.) also “added [former] section 1170.95, which
provides a procedure for convicted murderers who could not be convicted under the law
as amended to retroactively seek relief.” (Lewis, supra, at p. 959.)
“In 2021, the Legislature passed Senate Bill No. 775 (2021–2022 Reg. Sess.) . . . ,
amending former section 1170.95 effective January 1, 2022. In addition to providing
relief for those convicted of felony murder or [murder] under the natural probable
consequences doctrine, the amended statute extended relief to defendants convicted under
any ‘other theory under which malice is imputed to a person based solely on that person’s
participation in a crime.’ [Citation.] The amended statute also expanded the categories
of offenses eligible for relief to include attempted murder and manslaughter as well as
murder. [Citation.]” (People v. Lee (2023) 95 Cal.App.5th 1164, 1173–1174 (Lee).)
“Effective June 30, 2022, the Legislature renumbered [former] section 1170.95 to
section 1172.6 with no change in text.” (People v. Gonzalez (2023) 87 Cal.App.5th 869,
871, fn. 1, citing Stats. 2022, ch. 58, § 10; accord, People v. Saibu (2022) 81 Cal.App.5th
709, 715, fn. 3.)
A petitioner is entitled to relief under section 1172.6 if three conditions are
satisfied: (1) the prosecution “proceed[ed] under a theory of felony murder, murder
under the natural and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine[3]” (§ 1172.6, subd. (a)(1));
3 Attempted felony murder does not exist in California. (People v. Billa (2003) 31
Cal.4th 1064, 1071, fn. 4; People v. Brito (1991) 232 Cal.App.3d 316, 321.)
7.
(2) “[t]he petitioner was convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could
have been convicted of murder or attempted murder” (id., subd. (a)(2)); and (3) “[t]he
petitioner could not presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019” (id., subd. (a)(3)).
(Accord, People v. Watson (2021) 64 Cal.App.5th 474, 482 [former § 1170.95].)
“After the parties have had an opportunity to submit briefings, the court shall hold
a hearing to determine whether the petitioner has made a prima facie case for relief.”
(§ 1172.6, subd. (c).) “If a petitioner makes a prima facie showing of relief under section
1172.6—that is, a showing that the petitioner was convicted of murder, attempted
murder, or manslaughter under a theory no longer valid under the amended Penal Code—
the resentencing court must issue an order to show cause for an evidentiary hearing.”
(Lee, supra, 95 Cal.App.5th at p. 1174; accord, § 1172.6, subds. (c)–(d).) At the
evidentiary hearing, “the prosecution must prove beyond a reasonable doubt that the
petitioner remains guilty of murder or attempted murder despite the amendments to
sections 188 and 189.” (Lee, supra, at p. 1174.)
“[T]he prima facie inquiry under subdivision (c) is limited. Like the analogous
prima facie inquiry in habeas corpus proceedings, ‘ “the court takes petitioner’s factual
allegations as true and makes a preliminary assessment regarding whether the petitioner
would be entitled to relief if his or her factual allegations were proved. . . .” ’ [Citation.]”
(Lewis, supra, 11 Cal.5th at p. 971.) “The record of conviction will necessarily inform
the trial court’s prima facie inquiry under section [1172.6], allowing the court to
distinguish petitions with potential merit from those that are clearly meritless.” (Ibid.;
see People v. Abarca (1991) 233 Cal.App.3d 1347, 1349–1350 [“record of conviction”
encompasses change-of-plea forms, minute orders reflecting no contest pleas, and
transcripts of change-of-plea proceedings].) “In reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not engage in ‘factfinding
8.
involving the weighing of evidence or the exercise of discretion.’ [Citation.]” (Lewis,
supra, at p. 972; see People v. Davenport (2021) 71 Cal.App.5th 476, 481 (Davenport)
[“The court’s authority to summarily deny a petition is thus limited to ‘readily
ascertainable facts’ taken from the record of conviction . . . .”].) Moreover, “ ‘[a] court
should not reject the petitioner’s factual allegations on credibility grounds without first
conducting an evidentiary hearing.’ [Citation.]” (Lewis, supra, at p. 971.) “ ‘However,
if the record, including the court’s own documents, “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ [Citation.]” (Ibid.) “The contents of the
record of conviction defeat a prima facie showing when the record shows as a matter of
law that the petitioner is not eligible for relief.” (People v. Swanson (2020) 57
Cal.App.5th 604, 612.)
II. Analysis
a. Standard of review
“We review de novo an order denying a section 1172.6 petition at the prima facie
review stage.” (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.)
b. Second degree murder conviction (count two)
The September 21, 1993 transcript shows defendant pled no contest to second
degree murder “perpetrated by provocative acts,”4 not second degree felony murder or
second degree murder based on the natural and probable consequences doctrine.
4 Defendant stresses count two was amended to strike the words “malice
aforethought.” Nevertheless, defendant pled no contest to second degree murder
“perpetrated by provocative acts.” In order to convict a defendant of provocative act
murder, proof of malice aforethought is required. (See People v. Gilbert (1965) 63
Cal.2d 690, 704 (Gilbert); see also at pp. 10–11, post.)
9.
“The provocative act murder doctrine has traditionally been invoked in cases in
which the perpetrator of the underlying crime instigates a gun battle, either by firing first
or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct,
and the police, or a victim of the underlying crime, responds with privileged lethal force
by shooting back and killing the perpetrator’s accomplice or an innocent bystander.”
(People v. Cervantes (2001) 26 Cal.4th 860, 867.) As explained by the California
Supreme Court:
“When someone other than the defendant or an accomplice kills
during the commission or attempted commission of a crime, the defendant
is not liable under felony-murder principles but may nevertheless be
prosecuted for murder under the provocative act doctrine. . . . ‘A
provocative act murder case necessarily involves at least three people—. . .
the perpetrator of the underlying offense, an accomplice, and a victim of
their crime. [Citation.]’ [Citation.] A variation on the law of transferred
intent, the provocative act doctrine holds the perpetrator of a violent crime
vicariously liable for the killing of an accomplice by a third party, usually
the intended victim or a police officer. [Citations.] Under the felony-
murder rule, if an accomplice is killed by a crime victim and not by the
defendant, the defendant cannot be held liable for the accomplice’s death.
[Citations.] The provocative act doctrine is not so limited. Under the
provocative act doctrine, when the perpetrator of a crime maliciously
commits an act that is likely to result in death, and the victim kills in
reasonable response to that act, the perpetrator is guilty of murder.
[Citations.] ‘In such a case, the killing is attributable, not merely to the
commission of a felony, but to the intentional act of the defendant or his
accomplice committed with conscious disregard for life.’ [Citation.]”
(People v. Gonzalez (2012) 54 Cal.4th 643, 654–655, italics & fn. omitted
(Gonzalez).)
Under current case authority, to be guilty of provocative act murder, the accused
must “personally harbor[] the mental state of malice, and either the [accused] or an
accomplice intentionally committed a provocative act that proximately caused an
unlawful killing.” (Gonzalez, supra, 54 Cal.4th at p. 655, italics added, citing People v.
Concha (2009) 47 Cal.4th 653, 660–661; see People v. Mejia (2012) 211 Cal.App.4th
586, 603 [“With respect to the mental element of provocative act murder, a defendant
10.
cannot be vicariously liable; he must personally possess the requisite mental state of
malice aforethought when he either causes the death through his provocative act or aids
and abets in the underlying crime the provocateur who causes the death.”].) However, at
the time of defendant’s plea in 1993, “the Supreme Court had not separated out the mens
rea of individual defendants in provocative act murder cases.” (Lee, supra, 95
Cal.App.5th at p. 1182.) Instead, the law then in effect established “a defendant could be
guilty of provocative act murder based on the malicious and provocative acts of his
confederates, without a showing that the defendant himself harbored malice.” (Id. at
p. 1178; see, e.g., People v. Antick (1975) 15 Cal.3d 79, 89; Taylor v. Superior Court
(1970) 3 Cal.3d 578, 582–583; Gilbert, supra, 63 Cal.2d at pp. 704–705; People v.
Garcia (1999) 69 Cal.App.4th 1324, 1331, fn. 4; People v. Mai (1994) 22 Cal.App.4th
117, 125, 127–128, & fn. 9.) In light of the above, the fact defendant in the instant case
pled no contest to second degree provocative act murder did not—on its own—refute the
allegations of his resentencing petition.
Nevertheless, we conclude “ ‘readily ascertainable facts’ taken from the record of
conviction” (Davenport, supra, 71 Cal.App.5th at p. 481) rendered defendant ineligible
for relief under section 1172.6 as a matter of law. He pled no contest to not only second
degree provocative act murder (count two) but also conspiracy to murder Medina with
use of a firearm, among other things (count one). Conspiracy “is a specific intent crime”
(People v. Swain (1996) 12 Cal.4th 593, 602) and a conspiracy to commit murder
“requires a finding of intent to kill, and cannot be based on a theory of implied malice”
(id. at p. 607). Because “proof of unlawful ‘intent to kill’ is the functional equivalent of
express malice” (id. at p. 601), “where the conspirators agree or conspire with specific
intent to kill and commit an overt act in furtherance of such agreement, they are guilty of
conspiracy to commit express malice murder” (id. at p. 602). Furthermore, defendant
admitted—in furtherance of said conspiracy—he approached Medina from behind as the
officer was in a tussle with coconspirator Arrez-Garcia and pointed a semiautomatic
11.
pistol at Medina’s head, forcing the officer “into a [bent over] position.” (See Gonzalez,
supra, 54 Cal.4th at p. 657 [“A provocative act is conduct that is dangerous to human life,
not necessarily in and of itself, but because, in the circumstances, it is likely to elicit a
deadly response.”].) By virtue of defendant’s plea and admissions with respect to
count one, the elements of provocative act murder—as they existed in 1993—were
necessarily met without any imputed malice or any reference to the mental state and/or
actions of an accomplice.
c. Attempted murder conviction (count three)
The September 21, 1993 transcript shows defendant pled no contest to “willfully
and unlawfully, deliberately, with premeditation and malice aforethought” attempting to
murder Medina.
“ ‘An attempt to commit a crime consists of a specific intent to commit the crime,
and a direct but ineffectual act done towards its commission. [Citations.] Commission of
an element of the underlying crime other than formation of intent to do it is not
necessary. [Citation.] Although mere preparation such as planning or mere intention to
commit a crime is insufficient to constitute an attempt, acts which indicate a certain,
unambiguous intent to commit that specific crime, and, in themselves, are an immediate
step in the present execution of the criminal design will be sufficient. [Citations.]’
[Citation.]” (People v. Jones (1999) 75 Cal.App.4th 616, 627, fn. omitted.)
At the time of defendant’s plea in 1993, case law permitted an accomplice to the
perpetrator of a premeditated attempted murder to be convicted under the natural and
probable consequences doctrine without having an intent to kill. (See, e.g., People v.
Favor (2012) 54 Cal.4th 868.) Thus, the fact defendant pled no contest to premeditated
attempted murder did not—on its own—refute the allegations of his resentencing
petition.
12.
Once again, however, we conclude “ ‘readily ascertainable facts’ taken from the
record of conviction” (Davenport, supra, 71 Cal.App.5th at p. 481) rendered defendant
ineligible for relief under section 1172.6 as a matter of law. As mentioned, he pled no
contest to conspiracy to murder Medina with use of a firearm (count one), admitting he
personally possessed the intent to kill Medina. (Cf. People v. Eynon (2021) 68
Cal.App.5th 967, 970–971 [the defendant did not admit he acted with intent to kill].) As
also mentioned, defendant admitted he approached Medina from behind as the officer
was in a tussle with coconspirator Arrez-Garcia and pointed a semiautomatic pistol at
Medina’s head, forcing the officer “into a [bent over] position.” By virtue of defendant’s
plea and admissions with respect to count one, the elements of premeditated attempted
murder—as they existed in 1993—were necessarily met without any imputed malice or
any reference to the mental state and/or actions of an accomplice.
d. Remaining contention
Finally, defendant contends “issue preclusion did not bar relitigation of the prima
facie inquiry” because “[t]he issues sought to be precluded from relitigation were not
identical to that decided in the former plea proceeding”; “the issues were not actually
litigated in the former plea proceeding”; and “the issues were not necessarily reached in
the former plea proceeding.” However, defendant does not identify these “issues” and
does not provide any support for his assertions. “An appellate court is not required to
examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of
California (1999) 74 Cal.App.4th 68, 106; see Perry v. City of San Diego (2021) 65
Cal.App.5th 172, 188, fn. 8 [“It is not this court’s role to connect the dots.”].) As we will
not develop defendant’s claim for him, we decline to address it. (See Dills v. Redwoods
Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
13.
DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
DETJEN, Acting P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
14.