People v. Barragan CA2/5

Filed 3/3/23 P. v. Barragan CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B317977
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA147961)
v.
ANTONIO RAUL BARRAGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Debra Cole-Hall, Judge. Reversed and
remanded.
Steven Schorr, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Michael C.
Keller, Deputy Attorneys General for Plaintiff and Respondent.
__________________________
INTRODUCTION
Defendant Antonio Raul Barragan appeals from his
murder, robbery, and burglary convictions. He argues
substantial evidence does not support his first degree murder
conviction and the trial court committed sentencing errors. We
affirm the murder conviction but remand for resentencing due to
recent amendments to Penal Code section 1385..1
FACTS AND PROCEDURAL BACKGROUND
1. The Murder
Shortly before 4:00 a.m. on February 15, 2018, defendant
broke into a car stereo store in South Gate, where the victim (a
store employee) was sleeping.2 A security camera captured a
soundless video of the incident. When defendant encountered the
startled victim, defendant grabbed the victim’s right shoulder.
Pointing a gun, defendant moved the victim to a mattress where
the victim remained kneeling. Defendant took the victim’s wallet
and appeared to speak with the victim. Defendant walked
around the storefront, collected certain items, and placed them in
a bag. Defendant, again while seemingly engaged in
conversation with the victim, threw items onto the mattress. The
victim then wiped the objects on his t-shirt and the mattress.
Defendant proceeded to fire three shots into the victim’s head.
Defendant gathered the items and left the store. The encounter
lasted almost nine minutes.
Around 4:00 a.m., a witness who lived in an apartment
near the car stereo shop heard gunshots coming from the store’s
1 All further undesignated statutory references are to the
Penal Code.
2 Due to car trouble, the owner of the store allowed the
victim to sleep overnight in the store.
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direction. After calling 911, the witness saw a man run down an
alley adjacent to the store.
2. Police Investigation
Police found the victim dead inside the store. A medical
examiner determined that the victim died from three gunshot
wounds to the head.
A homicide detective obtained video from a surveillance
camera located inside the store. The video showed defendant’s
encounter with the victim as we have described it. The detective
also recovered and sent for DNA testing portions of the victim’s
clothing, which the killer had grabbed during the incident. DNA
analysis of two samples showed that it was, respectively, 11
trillion and 2.6 trillion times more likely to be defendant’s DNA
than the DNA of another person.
The detective also recovered surveillance footage from two
nearby businesses. The videos showed a GMC Yukon with a
nonfunctional third tailgate light approach the area at 2:33 a.m.
with its headlights out. About 17 minutes before the shooting,
the Yukon stopped adjacent to an alleyway near the car stereo
store. About seven to eight minutes into the video, a person
exited the Yukon from the passenger side, and walked toward the
car stereo store. After the shooting, the same Yukon drove
toward a freeway. Police subsequently stopped a Yukon that
matched the appearance of the Yukon in the videos. A search of
the vehicle produced a Glock 10 mm pistol. Police arrested the
driver/registered owner of the vehicle, codefendant Santiago
Cuevas, who was defendant’s cousin.
A firearms examiner tested the Glock 10 mm pistol found
in the Yukon and confirmed it was the murder weapon. A
separate trigger pull with at least six pounds of pressure was
required for each bullet that was discharged from the gun.
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Police arrested defendant in early April 2018 based on his
connection to Cuevas and other evidence.
3. Information
A third amended information charged defendant and
Cuevas with murder (§ 187, subd. (a); count one), robbery (§ 211;
count two) and second degree burglary (§ 459; count three). As
enhancements to counts one and two, the information alleged
that defendant personally used a firearm (§ 12022.53, subd. (b)),
personally and intentionally discharged a firearm (§ 12022.53,
subd. (c)), and personally and intentionally discharged a firearm
causing death and great bodily injury (§ 12022.53, subd. (d)). For
count three, the information alleged defendant personally used a
firearm (§ 12022, subd. (a)(1)).~
Defendant pleaded not guilty and denied the allegations.
On November 4, 2021, codefendant Cuevas pleaded no contest to
all counts except for the murder, admitted the principal armed
enhancement, and was sentenced to 17 years, 4 months in state
prison. Defendant proceeded to trial.
4. Trial and Sentencing
At trial, the People presented testimony from the witness
who heard the gun shots, the owner of the car stereo store, law
enforcement, a medical examiner, a forensic specialist, and
criminalists. Central to the People’s case was the surveillance
video of the shooting, admitted as exhibit 7. The defense rested
without presenting evidence.
A jury found defendant guilty of first degree murder (§ 187,
subd. (a)), robbery (§ 211), and burglary (§ 459). For the murder
and robbery convictions, the jury found defendant personally and
intentionally discharged a firearm that caused great bodily injury
and death. For the burglary conviction, the jury found defendant
personally used a firearm. Defendant admitted he had a prior
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serious felony conviction under the Three Strikes law and section
667, subdivision (a)(1).
On December 2, 2021, defense counsel filed a request to
dismiss defendant’s prior “strike” conviction under section 1385
and People v. Superior Court (Romero) (1996) 13 Cal.4th 497(Romero). At defendant’s sentencing hearing, the trial court
denied the request based on defendant’s crimes and criminal
record. We discuss this aspect of the proceedings in more detail
below.
For the murder conviction, the trial court sentenced
defendant to state prison for 75 years to life (25 years to life for
the murder, doubled because of defendant’s prior strike, with an
additional 25 years to life for the section 12022.53, subdivision (d)
firearm enhancement). The court imposed the upper term of five
years to be served consecutively for the robbery conviction,
doubled based on the prior strike. The court imposed and then
stayed a consecutive term of eight months for the burglary
conviction.3
Defendant appeals.
3 Although not raised by the parties, the court erred in
imposing and staying the one-third midterm sentence on the
burglary conviction. “ ‘The one-third-the-midterm rule of section
1170.1, subdivision (a), only applies to a consecutive sentence, not
to a sentence stayed under section 654.’ (People v. Cantrell (2009)
175 Cal.App.4th 1161, 1164 . . . .) To effectuate section 654, the
trial court must impose a full term and stay execution of that
term.” (People v. Relkin (2016) 6 Cal.App.5th 1188, 1198.)
Because we are remanding, the trial court will have the
opportunity to correct this part of the decision among its various
sentencing options.
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DISCUSSION
Defendant makes two arguments on appeal. First, he
argues we must reverse his conviction for first degree murder
because “substantial evidence fails to establish he acted
deliberately and with premeditation.” Second, defendant raises
two sentencing errors.
1. Substantial Evidence Supports Defendant’s First
Degree Murder Conviction
Defendant does not challenge the sufficiency of the
evidence that he shot and killed the victim. He contends,
instead, that no substantial evidence supports the mens rea
necessary for first degree murder. As his opening brief explains,
there was an “absence of any meaningful evidence of planning
activity related to the killing or a motive for committing it.”
a. Applicable Law
“Review on appeal of the sufficiency of the evidence
supporting the finding of premeditated and deliberate murder
involves consideration of the evidence presented and all logical
inferences from that evidence in light of the legal definition of
premeditation and deliberation . . . . Settled principles of
appellate review require us to review the entire record in the
light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find that the defendant premeditated and
deliberated beyond a reasonable doubt.” (People v. Perez (1992)
2 Cal.4th 1117, 1124.) “We determine whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. [Citation.] In so doing, a
reviewing court presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
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evidence.” (People v. Morales (2020) 10 Cal.5th 76, 88 [internal
quotation marks omitted] (Morales).)
The jury convicted defendant of first degree murder based
on a finding that the killing was willful, deliberate, and
premeditated. “An intentional killing is premeditated and
deliberate if it occurred as the result of preexisting thought and
reflection rather than unconsidered or rash impulse. 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.”
(Morales, supra, 10 Cal.5th at p. 88 [citations and internal
quotation marks omitted].)
Our Supreme Court has said that “[t]he type of evidence
which this court has found sufficient to sustain a finding of
premeditation and deliberation falls into three basic categories.”
(People v. Anderson (1968) 70 Cal.2d 15, 26–27.) They are:
(1) planning activity – “facts about how and what defendant did
prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to
result in, the killing”; (2) motive – “facts about the defendant’s
prior relationship and/or conduct with the victim from which the
jury could reasonably infer a ‘motive’ to kill the victim”; and
(3) manner of killing – “facts about the nature of the killing from
which the jury could infer that the manner of killing was so
particular and exacting that the defendant must have
intentionally killed according to a ‘preconceived design’ to take
his victim’s life in a particular way for a ‘reason’. . . .” (Id. at
pp. 26–27.) These three categories provide a framework for
appellate review. They are not exhaustive, nor is evidence in
each category required to support a first degree murder
conviction. (Morales, supra, 10 Cal.5th at pp. 88–89.)
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b. Substantial Evidence Supports the Conviction
Here, evidence of planning, motive, and manner of killing
supports the jury’s finding that the killing was premeditated and
deliberate.
Planning. “ ‘In the context of first degree murder,
premeditation means “ ‘considered beforehand’ ” [citation] and
deliberation means a “ ‘careful weighing of considerations in
forming a course of action . . . .’ ” [citation]. “The process of
premeditation and deliberation does not require any extended
period of time.” [Citation.]’ ” (People v. Salazar (2016) 63 Cal.4th
214, 245.)
Defendant’s decision to bring a loaded and fully functional
firearm into the store he was about to burgle shows defendant
was prepared for a violent encounter. Wielding a loaded firearm
may support the jury’s inference of planning. (See, e.g., People v.
Salazar, supra, 63 Cal.4th at p. 245 [“defendant brought a loaded
gun with him to the Beef Bowl, demonstrating preparation”].)
More proximate to this killing, the opening brief admits that,
once the killer entered the car stereo shop, he was “interacting
and apparently conversing with [the victim] for approximately
eight minutes” when the killer suddenly raised and fired three
shots into the victim’s head. The jury reasonably could have
found that, with a loaded gun already in his possession, eight
minutes was more than enough time to premeditate and
deliberate, and then to shoot the victim in cold blood three times.
Motive. Defendant’s argument on motive suggests a pre-
existing relationship between the defendant and the victim is often
found to support a finding of motive. This may be so. (See, e.g.,
People v. Winkler (2020) 56 Cal.App.5th 1102, 1165 [evidence of
wife’s ongoing affair and impending divorce provide a strong
motive for killing the victim].) Here there was no pre-existing
relationship, but that does not conclusively rule out motive. Our
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Supreme Court has repeatedly held that motive may be
established when the defendant kills in order to avoid detection.
(See, e.g., People v. Hovarter (2008) 44 Cal.4th 983, 1019 [jury
could infer defendant killed victim to avoid detection for the crimes
he committed against her]; People v. Hughes (2002) 27 Cal.4th 287,
371 [defendant had motive to eliminate victim who was a witness
to his crime]; People v. Pride (1992) 3 Cal.4th 195, 247 [same].)
Defendant was not masked, and the victim was in a position to see
defendant’s face clearly. The jury could have reasonably inferred
that defendant killed the victim to complete the burglary and
prevent his identification by the only eyewitness.
Manner of killing. The execution-style killing supported
the jury’s finding the murder was contemplated and deliberate.
While the victim knelt in a submissive position on the mattress,
posing no threat to defendant, defendant fired three gunshots
into the victim’s head. Defendant’s method was exacting and
particular – neither accidental nor in response to a threat from,
or resistance, by the victim. The manner of the killing permitted
the jury to infer defendant had acted pursuant to a preconceived
plan, even if that plan was only formulated in the nearly nine
minutes defendant spent with the victim prior to the murder.
(See People v. Gomez (2018) 6 Cal.5th 243, 283 [that victims were
shot from close range in the head or neck showed premeditation
and deliberation]; People v. Halvorsen (2007) 42 Cal.4th 379, 422
[The victims “were shot in the head or neck from within a few
feet, a method of killing sufficiently ‘ “particular and exacting” ’ to
permit an inference that defendant was ‘acting according to a
preconceived design’ ”].)
Defendant argues that, although he had a gun, he did not
point it at the victim until shooting him and that having a gun
did not indicate an intent to kill. Defendant also argues the
manner of killing was sudden and unexpected, and thus not the
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result of thoughtful contemplation. And, because the victim was
not bound or blindfolded, the killing was not done execution style.
In belaboring the discussion on the presence or absence of
specific details of planning, motive, and manner of the killing,
defendant misses the point. The video of the killing, the DNA
evidence linking defendant to the crime, and the totality of the
evidence collectively constitute substantial evidence to support
the verdict. That the jury could have given some weight to other
factors does not compel acquittal.
2. We Remand for Resentencing
Defendant complains that, in imposing sentence, the trial
court failed to acknowledge and exercise its discretion as defined
in recent amendments to section 1385 and the Supreme Court’s
opinion in People v. Tirado (2022) 12 Cal.5th 688, 692 (Tirado).
Defendant also asks us to correct clerical errors in the court’s
minutes and abstract of judgment, which incorrectly describe the
firearm enhancement imposed but stayed for the burglary
conviction.
a. Recent Amendments to Section 1385
Defendant argues that, based on recent amendments to
section 1385, the trial court abused its discretion by rejecting
defendant’s request to dismiss a prior “strike” conviction
pursuant to Romero. The Attorney General acknowledges
remand is appropriate because the trial court failed to apply the
amended version of section 1385. We agree.
On January 1, 2022, Senate Bill 81 (2021–2022 Reg. Sess.)
(Senate Bill No. 81) amended section 1385 “to specify factors that
the trial court must consider when deciding whether to strike
enhancements from a defendant’s sentence in the interest of
justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674.) The
amended law lists nine mitigating circumstances, including: the
existence of multiple enhancements in a single case, the
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enhancement’s application could result in a sentence of over 20
years, and the underlying prior conviction is over five years old.
(§ 1385, subd. (c).) By its terms, proof of a single circumstance
weighs greatly in favor of dismissing the enhancement unless
dismissal would endanger public safety. (§ 1385, subd. (c)(2).)
Here, one month prior to the January 1, 2022 amendment
to section 1385, defense counsel filed a request to dismiss
defendant’s prior “strike” conviction under section 1385 and
Romero. Counsel argued that defendant’s prior serious felony
conviction under the Three Strikes law was 23 years old.
Counsel did not mention the impending amendment to section
1385. At defendant’s January 4, 2022 sentencing hearing, the
trial court denied the request based on defendant’s crimes and
criminal record. Neither the trial court nor counsel referenced
the then-effective amendment to section 1385.
Because the trial court did not consider the recent
amendments to section 1385, we agree the case must be
remanded for resentencing.
b. The Trial Court’s Discretion as Clarified by People v.
Tirado
Defendant also argues resentencing is necessary because
the trial court did not know it had authority under the Supreme
Court’s decision in Tirado, supra, 12 Cal.5th at page 692 “to
strike [a] section 12022.53[, subdivision (d) firearm] enhancement
found true by the jury and to impose a lesser uncharged statutory
enhancement instead.” Tirado was filed 16 days after
defendant’s sentencing, so it is fair to say that no one, not the
trial court, counsel nor anyone else was aware of Tirado when
defendant was sentenced. Briefly, in its opinion, the Supreme
Court addressed the three-tiered enhancement structure found in
section 12022.53, subdivisions (b), (c), and (d). That section
provides firearm enhancements of 10, 20, or 25 years for certain
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felonies, based on the egregiousness of the firearm use. Tirado
clarified that the trial court has the discretion under section
12022.53, subdivision (h) to impose a lesser 10- or 20-year
enhancement in place of the 25-year enhancement. (Tirado,
supra, 12 Cal.5th at p. 700.)
The Attorney General in its respondent’s brief does not
address defendant’s Tirado argument one way or the other.
We need not weigh in on the applicability of Tirado to the
present case. Because we remand for the trial court to consider
the amendments to section 1385 when it imposes sentence, the
trial court will also have the opportunity to consider Tirado in
formulating that sentence. “At that hearing, the full
resentencing rule, which ‘allows a court to revisit all prior
sentencing decisions when resentencing a defendant’ [citation]
applies.” (People v. Henderson (2022) 14 Cal.5th 34, 56.)4
DISPOSITION
We remand for the trial court to resentence defendant in
light of the changes to section 1385. We affirm the judgment on
all other grounds.
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
4 We do not address defendant’s final argument about
clerical errors in the minutes and abstract of judgment. The trial
court will have the opportunity to correct any errors on remand.
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The People v. Antonio Raul Barragan
B317977
BAKER, J., Concurring
I have signed the opinion for the court. I write
separately to ensure the parties do not read too much into
our discussion of People v. Tirado (2022) 12 Cal.5th 688, 692.
Although that decision had not issued at the time sentence
was imposed, there was Court of Appeal authority to the
same effect on the books that the trial court could have opted
to follow. (See, e.g., People v. Morrison (2019) 34
Cal.App.5th 217, 222-223.) So while nothing prohibits the
defense from arguing on remand that some lesser firearms
enhancement should be imposed, that argument was
available to the defense at the already-held sentencing and
we presume the trial court was aware of its discretion.
BAKER, J.
1