People v. Barragan CA3

Filed 3/3/23 P. v. Barragan CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent, C093651
v. (Super. Ct. Nos. STK-CR-FE-
2002-0009689, SF087807D)
VICTOR BARRAGAN,
ON TRANSFER
Defendant and Appellant.
Defendant Victor Barragan was convicted of murder and several other offenses
based on his participation in an attempted home invasion robbery. He appeals from
a postjudgment order denying his petition for resentencing under Penal Code
1
section 1172.6.1 The trial court denied defendant’s petition, finding the record
established defendant was ineligible for resentencing because the jury found true two
special circumstance enhancement allegations. On appeal, defendant argues the trial
court erred in summarily denying his petition. Originally, this court affirmed the trial
court’s order. (People v. Barragan (Mar. 30, 2022, C093651) [nonpub. opn.].)
The California Supreme Court granted review and deferred action pending the
disposition in People v. Strong (2022) 13 Cal.5th 698 (Strong). Following its decision,
the Supreme Court transferred the matter back to this court with directions to vacate our
decision and reconsider the matter in light of Strong.
We conclude the trial court’s denial of the petition was inconsistent with
section 1172.6 in light of Strong. We will reverse and remand the matter for further
proceedings.
BACKGROUND
Defendant and three codefendants participated in a home invasion robbery,
during which the 14-year-old victim was shot and killed. (People v. Barragan et al.
(Sept. 17, 2008, C049845) [nonpub. opn.] (Barragan).)2 The jury found defendant
guilty of several offenses and found true associated special allegations and
enhancements including murder (§ 187) with the special circumstances of attempted
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 as section 1172.6. (Stats. 2022,
ch. 58, § 10.) There were no substantive changes to the statute. Although petitioner filed
his petition under former section 1170.95, we cite to section 1172.6 throughout this
opinion.
2 On our own motion, we take judicial notice of our opinion affirming the judgment of
conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, subd. (a),
452, subd. (d) [permitting a court to take judicial notice of records of “any court of this
state”].)
2
robbery felony murder and attempted burglary felony murder (§ 190.2, subd. (a)(17)(A),
(G)), with intentional discharge of a firearm (§ 12022.53, subds. (d) & (e)(1)).3
The trial court sentenced defendant to life without the possibility of parole for
murder with special circumstances, plus 25 years to life for the firearm discharge
enhancement, with an additional aggregate 13-year term.
On appeal, this court struck the imposition of a 10-year gang enhancement, and
affirmed the judgment as modified. (Barragan, supra, C049845.)
In 2019, defendant filed a petition for resentencing under former section 1170.95.
The trial court issued a written ruling summarily denying the petition, finding that
because two special circumstance murder allegations were found true by the jury after the
jury was instructed it could only find those circumstances to be true if defendant was
proved to be, beyond a reasonable doubt, either an aider and abettor with intent to kill or
a major participant who acted with reckless disregard for human life, defendant was not
eligible for resentencing. Defendant did not appeal this ruling.
In 2020, defendant filed a new petition for resentencing under section 1172.6. In
the petition defendant asserted, among other things, that he was not an aider and abettor
with intent to kill and was not a major participant in the felony and did not act with
reckless indifference to human life. Without appointing counsel or entertaining
argument, the trial court denied the petition, referring to its prior denial order.
This court filed an unpublished opinion on March 30, 2022, affirming the trial
court’s order. The California Supreme Court granted review of the matter on June 15,
3 Defendant was also convicted of burglary (§ 459) with a personal firearm use
enhancement (§ 12022.5, subd. (a)); attempted home invasion robbery (§§ 664, 211) with
enhancements for the intentional discharge of a firearm (§ 12022.53, subds. (d) & (e)(1))
and for committing the crime for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)); and being a felon in possession of a firearm (§ 12021, subd. (a)).
(Barragan, supra, C049845.) However, neither these convictions, nor defendant’s
sentence related to them, are relevant to this appeal.
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2022, and on December 21, 2022, transferred the case to this court with directions to
vacate our previous decision and reconsider the cause in light of Strong, supra, 13 Cal.5th
698.
DISCUSSION
Following the Supreme Court’s transfer back to this court, defendant submitted a
supplemental brief arguing the case should be remanded to the trial court. The People
agreed.
A
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised
the felony-murder rule in California “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).) The bill amended the definition of malice in
section 188, revised the definition of the degrees of murder to address felony-murder
liability in section 189, and added what is now, section 1172.6, “which provides a
procedure by which those convicted of murder can seek retroactive relief if the changes
in the law would affect their previously sustained convictions.” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1172.6, subdivision (a) states a person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition with the
court for resentencing “when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or 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. [¶] (2) The petitioner was convicted of murder,
attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a
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trial at which the petitioner could have been convicted of murder or attempted murder. [¶]
(3) The petitioner could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective January 1, 2019.”
Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that
avers eligibility for relief under the statute (based on the requirements of subdivision (a))
and states the superior court case number, the year of conviction, and whether the
petitioner requests appointment of counsel. (§ 1172.6, subd. (b).) Section 1172.6,
subdivision (c), dictates how the court must handle the petition: “Within 60 days after
service of a petition that meets the requirements set forth in subdivision (b), the
prosecutor shall file and serve a response. The petitioner may file and serve a reply
within 30 days after the prosecutor’s response is served. These deadlines shall be
extended for good cause. 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. If the petitioner makes a prima facie showing that the petitioner is entitled
to relief, the court shall issue an order to show cause. If the court declines to make an
order to show cause, it shall provide a statement fully setting forth its reasons for doing
so.”
Section 1172.6, subdivision (d)(1) provides that a hearing to determine whether to
vacate the murder conviction, recall the sentence, and resentence the petitioner as needed
should be held within 60 days after the order to show cause. The prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. (§ 1172.6, subd. (d)(3).) At the hearing, “[t]he admission of evidence in
the hearing shall be governed by the Evidence Code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is admissible under current
law, including witness testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case recited in any prior
appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing
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pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay,
unless the evidence is admissible pursuant to another exception to the hearsay rule.”
(Ibid.)
B
Section 190.2, subdivision (d) provides that special-circumstance findings based
on the enumerated felonies in paragraph (17) of subdivision (a)—which includes robbery
and burglary—require that an aiding and abetting defendant must have been a “major
participant” and have acted “with reckless indifference to human life.” (§ 190.2,
subd. (d); see People v. Banks (2015) 61 Cal.4th 788 (Banks).) Thus, on its face, a
special-circumstance finding satisfies the requirements for accomplice murder liability
even after Senate Bill No. 1437. Since petitioner’s conviction, however, the California
Supreme Court has refined the analysis for determining who qualifies as a major
participant acting with reckless indifference to human life in Banks and People v. Clark
(2016) 63 Cal.4th 522 (Clark).
In Banks, supra, 61 Cal.4th at page 803, the Supreme Court identified a series of
considerations, none of which are “necessary, nor is any one of them necessarily
sufficient,” for determining whether a defendant was a major participant. These include
the defendant’s role in planning the crime and in “supplying or using lethal weapons”; the
defendant’s awareness of “particular dangers posed by the nature of the crime”; whether
the defendant was “present at the scene of the killing, in a position to facilitate or prevent
the actual murder”; whether the defendant’s own “actions or inaction play[ed] a particular
role in the death,” and what the defendant did “after lethal force was used.” (Ibid.)
Similarly, in Clark, supra, 63 Cal.4th at page 617, the Supreme Court found
reckless indifference to “encompass[] a willingness to kill (or to assist in another killing)
to achieve a distinct aim.” It provided a nonexhaustive list of factors to consider in
making this determination, including use or awareness of the presence of a weapon or
weapons, physical presence at the scene and opportunity to restrain confederates or aid
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victims, duration of the crime, knowledge of any threat the confederates might represent,
and efforts taken to minimize risks. (Id. at pp. 618-623.)
In Strong, supra, 13 Cal.5th 698, the Supreme Court addressed the impact of
Banks and Clark on section 1172.6 petitions for defendants with special-circumstance
findings. The Court found “Banks and Clark both substantially clarified the law
governing findings under Penal Code section 190.2, subdivision (d)” as they “represent
the sort of significant change that has traditionally been thought to warrant reexamination
of an earlier-litigated issue.” (Strong, at pp. 706, 717.) Thus, special-circumstance
findings made “before Banks and Clark do not preclude a defendant from making out a
prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial
evidence would have been sufficient to support the findings under Banks and Clark.”
(Id. at p. 710.)
A defendant with a special-circumstance finding who files a section 1172.6
petition may ultimately be found to be ineligible for relief, but it must be determined
beyond a reasonable doubt the defendant was a major participant who acted with reckless
indifference to human life under the Banks/Clark analyses. (Strong, supra, 13 Cal.5th at
p. 720.) And, while a special-circumstance finding may be challenged through a habeas
corpus petition, “nothing in section 1172.6 says that a defendant must always do so
before seeking resentencing.” (Id. at p. 713, italics omitted.)
C
Defendant argues the special-circumstance finding did not establish by law that he
was ineligible for relief under section 1172.6. The People agree that the matter should be
remanded for further proceedings under section 1172.6.
In light of the Supreme Court’s decision in Strong, defendant is not ineligible for
relief as a matter of law based on the pre-Banks/Clark special-circumstance finding.
(Strong, supra, 13 Cal.5th at pp. 710, 713.) We will remand this matter to the trial court
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with instructions to issue an order to show cause and hold an evidentiary hearing pursuant
to section 1172.6, subdivision (d).
DISPOSITION
The order denying the petition is reversed and the case is remanded to the trial
court. The trial court shall issue an order to show cause and hold an evidentiary hearing
pursuant to section 1172.6, subdivision (d).
/S/
MAURO, Acting P. J.
We concur:
/S/
DUARTE, J.
/S/
EARL, J.
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