People v. Barra CA1/3 ( 2024 )

Filed 10/11/24 P. v. Barra CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A168093
v.
JOSIAH CHESTON BARRA, (Napa County
Super. Ct. No. CR26237)
Defendant and Appellant.
MEMORANDUM OPINION1
A jury found Josiah Cheston Barra (Barra) guilty of the attempted
willful, deliberate, and premeditated murders of Richard Lafferty, Sr., and
Darryl Ross (Pen. Code, §§ 187, 6642; counts one and two), and second degree
robbery of Ross (§ 211; count three). As to all counts, the jury found true
allegations that Barra personally used a knife and personally inflicted great
bodily injury (§§ 12022, subd. (b), 12022.7, subd. (a)).
1 We resolve this case by a memorandum opinion pursuant to California
Standards of Judicial Administration, section 8.1.
2 All further undesignated statutory references are to the Penal Code.
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Barra was tried jointly with co-defendant Johnny Barra,3 who was
convicted of the attempted willful, deliberate, and premeditated murder of
Lafferty, Sr. (count one), second degree robbery of Ross (count three), and
assault with a deadly weapon of Richard Lafferty, Jr. (count four). The jury
found true allegations as to count one that Johnny personally used a knife
and personally inflicted great bodily injury (§§ 12022, subd. (b), 12022.7,
subd. (a)). As to count three, the jury found true a knife use allegation, and
as to count four, the jury found true a great bodily injury allegation.4
In 1996, the trial court sentenced Barra to life with the possibility of
parole for the attempted murder convictions, plus a determinate term of 14
years for the remaining robbery conviction and enhancements.
In January 2022, Barra filed a form petition for resentencing pursuant
to former section 1170.95. His petition checked boxes indicating that: (1) a
charging document was filed against him allowing the prosecution to proceed
under a theory of attempted murder under the natural and probable
consequences doctrine; (2) he was convicted of attempted murder following
trial; and (3) he could not now be convicted of attempted murder because of
changes made to sections 188 and 189 effective January 1, 2019. Johnny
filed a similar petition.
In June 2023, the resentencing court jointly considered and denied both
petitions without issuing an order show cause, finding Barra and Johnny
failed to state a prima facie case for relief. As recounted in our prior opinion:
3 To avoid confusion because of shared last names, we will refer to
Johnny Barra by his first name only.
4 We grant Barra’s unopposed request for judicial notice of our
unpublished opinion in case no. A168099, which addressed Johnny’s appeal
from the denial of his section 1172.6 petition. (People v. Barra (May 17, 2024,
A168099) [nonpub. opn.] (Johnny Barra)), and of the respondent’s brief in
that case. We take judicial notice of the record in that prior case as well.
2
“The court explained its decision was based on its review of Special
Instruction No. 19, which it believed was given during the trial, and which
stated: ‘specific intent to kill unlawfully is a necessary element of attempted
murder,’ ‘intent to kill unlawfully cannot be inferred solely from the
commission of another dangerous crime, such as robbery or assault with a
deadly weapon,’ and ‘[i]n addition to proving that defendant committed those
offenses, the prosecution must present other independent evidence which
directly or by solid inference, proves beyond a reasonable doubt that
defendant intended to kill.’ The court also reviewed the verdicts, which
showed the jury found true the allegation that the attempted murder was
willful, deliberate and premeditated, and that defendants personally used
knives and inflicted great bodily injury.” (Johnny Barra, supra, at p. *4.)
Barra now contends the resentencing court erred in denying his
petition at the prima facie stage without issuing an order to show cause.
Relying on our discussion in Johnny Barra, supra, of the instructions given at
the trial, Barra argues he made a prima facie showing of entitlement to relief
because the trial court did not instruct the jury with Special Instruction
No. 19; rather, it instructed the jury on aiding and abetting and the natural
and probable consequences doctrine.
The People concede the resentencing court erred in denying the petition
at the prima facie stage without issuing an order to show cause. The People
assert: “In summarily denying the petition, the lower court relied on a
proposed jury instruction on intent to kill, Special Instruction 19. [Citation.]
However, as noted in this court’s opinion in the codefendant’s companion
case, that instruction was not given at trial. [Citation.] Instead, the jury was
instructed on the doctrine of aider and abettor liability, which included
instructions on the natural and probable consequences doctrine. [Citation.]
3
In light of those instructions, for the same reason noted in this court’s opinion
in finding that the superior court erred with respect to denying a prima facie
case as to the attempted premeditated murder conviction for count 1 for
Johnny [citation], the superior court similarly erred with respect to [Barra].”
We accept the concession. As stated in Johnny Barra, supra, the record
in case no. A168099 included jury instructions given at the joint trial, which
did not include Special Jury Instruction No. 19. The record showed the trial
court refused to give another special jury instruction with language identical
to Special Jury Instruction No. 19. Additionally, the record showed the jury
was instructed on aiding and abetting as follows: a person aids and abets a
crime when they—with knowledge of the unlawful purpose of the perpetrator,
and with the intent to commit, encourage or facilitate the commission of the
crime—by act or advice do aid, promote, encourage or instigate the crime.
The instructions also informed the jury that an aider and abettor is not only
guilty of the crime they aided and abetted, but also guilty of “any other crime
committed by a principal which is a natural and probable consequence of the
crimes originally aided and abetted.”
As the People acknowledge, given these instructions, the record does
not foreclose the possibility that the jury convicted Barra of the attempted
murders under the natural and probable consequences doctrine. (People v.
Lewis (2021) 11 Cal.5th 952, 971.) As such, we will reverse with instructions
that the superior court issue an order to show cause and conduct an
evidentiary hearing pursuant to section 1172.6, subdivision (d). We express
no opinion as to the ultimate outcome of the resentencing proceeding.
DISPOSITION
The order denying Barra’s section 1172.6 petition is reversed. The
matter is remanded to the superior court with directions to issue an order to
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show cause and to thereafter proceed as required by section 1172.6,
subdivision (d).
_________________________
Fujisaki, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Petrou, J.
People v. Barra (A168093)
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