People v. Barragan CA2/8 ( 2023 )

Filed 1/12/23 P. v. Barragan CA2/8
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318424
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. TA152980
JUAN BARRAGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Sean D. Coen, Judge. Affirmed in part, vacated
in part, and remanded for resentencing.
Law Offices of Andy Miri and Andy Miri for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Rene Judkiewicz, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Juan Barragan appeals his conviction for carjacking and
challenges his 23-year prison sentence. He claims his trial
counsel provided ineffective assistance, the trial court
erroneously denied his new trial motion, insufficient evidence
supports the verdict, and his sentence violates our recently
amended determinate sentencing law. Only the last claim has
some merit, so we vacate Barragan’s sentence and remand the
matter for resentencing. In all other respects, we affirm the
judgment. Statutory references are to the Penal Code.
I
The prosecution’s case featured video footage of the crime
taken from security cameras at the scene—a Valero gas station
on South Figueroa Street. Barragan’s nephew and co-defendant
Brandon Barragan Howell admitted the video depicted him and
his uncle. Several police witnesses testified, including those who
responded to the incident and investigated it. Fingerprint
experts tied Barragan to the victim’s car. The prosecution’s case
was this: Barragan and Howell attacked a gas station customer
and left him dazed and bloodied on the ground while Barragan
drove off in the victim’s car. We dive deeper into the facts later
when reviewing the sufficiency of the evidence.
Before the defense case began and out of the jury’s
presence, Barragan’s counsel told the court her client wanted to
testify. The public defender, the prosecutor, and the court
discussed how the prosecution could use Barragan’s prior
convictions. Then Barragan and his counsel conferred off the
record.
Barragan took the stand and admitted he had two
convictions from 2001. He answered questions about his
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circumstances leading up to the incident and about the incident
itself. Then he said he did not “want to talk anymore” and
asserted his Fifth Amendment right against self-incrimination.
Out of the jury’s presence, Barragan confirmed he was done
testifying. When the jurors came back, the court instructed them
to disregard Barragan’s testimony “as if it had never occurred.”
Other defense witnesses followed Barragan, including his
nephew Howell, Howell’s cousin, and Barragan’s cousin.
Each defendant faced one count of carjacking (section 215,
subd. (a)). The jury convicted Barragan but found Howell not
guilty.
Before sentencing, Barragan hired private counsel and filed
a motion for new trial along with his sentencing memorandum.
The motion cited a single statutory ground—section 1181,
subdivision (7)—which applies where a verdict is “contrary to law
or evidence.” But the thrust of the motion was that evidence
undermining the required specific intent for carjacking was
wrongfully excluded from trial, or at least not offered.
The motion argued the jury never heard that Barragan was
an “extremely troubled” person suffering from bipolar disorder
and from posttraumatic stress disorder stemming from the
shooting death of his brother; that the carjacking occurred shortly
after Barragan had had major surgery and on a day when he had
mixed prescribed pain medication with alcohol; that he was
highly disoriented, confused, agitated, and impulsive as a result
of the mixture and had no memory of the incident; and that a
forensic and clinical psychologist who interviewed Barragan
before trial opined Barragan had Bipolar I Disorder and Alcohol
Use Disorder, both of which played a significant role in the
incident. The motion says the psychologist’s report is attached as
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an exhibit, but the report is not in the clerk’s transcript. It is
unclear whether the trial court ever saw the report. It is also
unclear what else the report contains.
Barragan’s new trial motion did not raise ineffective
assistance of counsel. Nor did Barragan’s private counsel raise
this issue at the hearing on the motion.
The trial court denied the motion at this February 2022
hearing. At the same hearing, it held a bench trial of Barragan’s
prior convictions. The court found beyond a reasonable doubt
Barragan previously had been convicted of aggravated assault (§
245, subd. (a)(2)).
The hearing concluded with sentencing. The trial court
sentenced Barragan to 23 years in prison. This was the upper
term of nine years, doubled to 18 years under section 1170.12,
subdivision (c)(1), plus five years under section 667, subdivision
(a)(1). The court exercised its discretion not to strike the prior
conviction.
Barragan appealed.
II
Barragan’s appeal raises four issues. His fourth and final
claim regarding sentencing has merit, but the others do not. We
discuss each issue.
A
Barragan first argues his trial counsel provided ineffective
assistance in two ways: (1) by failing to introduce the evidence
supposedly negating specific intent mentioned in his new trial
motion, and (2) by allowing Barragan to testify without proper
preparation.
To establish ineffectiveness, a defendant must show
counsel’s efforts fell below an objective standard of
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reasonableness and the deficient performance prejudiced the
defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687–
688.) In reviewing ineffective assistance claims, we defer to
counsel’s reasonable tactical decisions and presume counsel acted
within the wide range of reasonable professional assistance.
(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Claims of ineffective assistance usually are more
appropriately raised in habeas corpus proceedings. (Mai, supra,57 Cal.4th at p. 1009.) On direct appeal, we reverse a conviction
only if (1) the record shows counsel had no rational tactical
purpose for the challenged act or omission, (2) counsel was asked
for a reason and failed to provide one, or (3) no satisfactory
explanation could exist. (Ibid.)
Perhaps to avoid this steep burden, Barragan urges us to
make a limited remand of this issue under California Rules of
Court, rule 8.397. This rule applies only in death penalty cases.
(Cal. Rules of Court, rule 8.390(a) [“The rules in this article apply
only to appeals under Penal Code section 1509.1 from superior
court decisions in death penalty-related habeas corpus
proceedings.”].)
Turning to Barragan’s first contention, the trial featured
considerable evidence and argument Barragan was intoxicated
the day of the incident, including testimony from Barragan’s
cousin explaining she and Barragan “got very drunk” that night
and he was “the drunkest [she’d] ever seen him,” and testimony
from Howell recounting how he found Barragan before the
incident “passed out sleeping on a bench” and had to revive him
because Barragan was “obviously drunk, very drunk.” Howell
further testified that at the time of the incident Barragan was
incoherent, “stumbling everywhere,” “so out of it,” and “like, a
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lost dog, . . . . His mind wasn’t there.” The testimony about
Barragan’s intoxicated state led to a jury instruction to consider
whether Barragan had the required specific intent.
Barragan asserts his trial counsel should have done more
and should have introduced the evidence of his mental health
problems outlined in the psychologist’s report. But the report is
not in the record, Barragan’s reply brief concedes this absence,
and he has yet to seek to augment the record. With the report
absent, we leave the ineffective assistance issue to the customary
forum of a habeas corpus proceeding. (See Mai, supra, 57 Cal.4th
at p. 1009.)
As for Barragan’s second contention of inadequate
preparation, nothing in the record shows how defense counsel
prepared for trial. We therefore cannot say the preparation
undertaken was inadequate.
Barragan also faults his trial counsel for having insufficient
control over him at trial—apparently for allowing him to testify
and then to stop. But counsel could not prevent him from
testifying. (People v. Allen (2008) 44 Cal.4th 843, 860 [“The
defendant in a criminal proceeding has a right to testify over the
objection of his or her counsel.”].) And nothing shows it was
counsel’s fault Barragan changed his mind midstream.
Barragan has failed to establish deficient performance by
his trial counsel. We thus do not reach the issue of prejudice.
B
Barragan next argues the trial court improperly denied his
new trial motion. But he presented no valid grounds for granting
relief, and the trial court acted within its discretion in denying
the motion. (See People v. Lightsey (2012) 54 Cal.4th 668, 729
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[deferential abuse-of-discretion standard applies to rulings on
new trial motions].)
The motion mentioned one statutory ground for relief—
section 1181, subdivision (7)—but it did not establish the verdict
was contrary to law or the evidence at trial. (See People v.
Moreda (2004) 118 Cal.App.4th 507, 513–515 [paragraphs 6 and
7 of section 1181 confine the trial court’s review to the trial
record]; see also People v. Bailey (2012) 54 Cal.4th 740, 752.)
Regarding the evidence, in the next section we detail how
the evidence amply supports the carjacking conviction. Further,
the mental health evidence Barragan mentions in his motion (but
does not attach) never was offered at trial.
Regarding the law, Barragan takes issue with the trial
court’s comments about specific intent at the hearing on his
motion. In response to defense counsel’s argument about
Barragan’s state of mind, the court explained:
And I know you had stated mental state several
times, but, just to be clear, because it’s a word of art
in regards to the law, it’s not a mental state crime.
It’s a specific intent crime. Mental state crime is
something like murder, et cetera. This is a specific
intent crime and that’s why the state of the case
which the evidence was given, the voluntary
intoxication instruction was given because there’s
substantial evidence warranting the giving of that.
That came by way of co-defendant’s testimony. And
there were opportunities to present that in other
ways as well. . . .
This commentary does not warrant a new trial. The trial court
accurately recognized carjacking requires a specific intent. It had
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instructed the jury on that intent according to pattern jury
instructions Barragan does not challenge. Barragan’s new
counsel conceded “[t]he jury was correctly given an instruction
regarding voluntary intoxication and its effect on intent.”
The prosecution raises newly discovered evidence under
section 1181, subdivision (8), and ineffective assistance of counsel
in its discussion of Barragan’s new trial motion. But Barragan
asserted neither as grounds for his motion. The trial court did
not err in refusing a new trial. (See People v. Masotti (2008) 163
Cal.App.4th 504, 508 [“A motion for new trial may be granted
only upon a ground raised in the motion.”].)
C
Barragan next contends insufficient evidence supports his
carjacking conviction. In particular, he urges: (1) because the
victim did not testify, there was no evidence the victim was
fearful and did not consent to the taking; and (2) there was no
evidence Barragan had the specific intent to steal the victim’s
car.
Barragan’s insufficiency challenge comes with a heavy
burden, one he cannot meet.
In reviewing claims of insufficiency of evidence, we
examine the record in the light most favorable to the prosecution.
We discern whether there is substantial evidence from which any
rational trier of fact could find the elements of the crime beyond a
reasonable doubt. And we presume in support of the judgment
the existence of every fact the jury reasonably could deduce from
the evidence. (People v. Zamudio (2008) 43 Cal.4th 327, 357
(Zamudio).)
The crime of carjacking requires proof (1) the defendant
took someone else’s vehicle, (2) from the immediate presence of
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that person or a passenger, (3) against the person’s will, (4) using
force or fear, (5) with the intent of temporarily or permanently
depriving the person of possession of the vehicle. (§ 215, subd.
(a); People v. Magallanes (2009) 173 Cal.App.4th 529, 534.)
Substantial evidence supports each element. We disregard
and do not discuss evidence favoring Barragan. (See Zamudio,
supra, 43 Cal.4th at p. 357 [an appellate court’s job is to look for
substantial evidence supporting the verdict, not to resolve
credibility issues or evidentiary conflicts].)
The jury saw the gas station surveillance videos, which
showed the victim exiting a car and later Barragan exiting his
nephew’s car. They showed Barragan approach the victim’s car,
open the door, and look inside. Barragan is seen fighting with
the victim; then his nephew joins in. They continue the attack
while the victim is on the ground trying to shield his head. The
victim gets up. Barragan and his nephew pursue him and fight
him to the ground again. Barragan beats and kicks the victim
until the latter stops moving. Then Barragan gets in the victim’s
car and drives away. The victim eventually sits up.
The jury also heard testimony from the investigating
detective who studied the video footage and interviewed
Barragan. Barragan had confessed to this detective that he was
the one in still shots from the video. The responding officer
testified about the victim Barragan left behind, describing him as
dazed, disoriented, and bloodied. The jury saw pictures of the
victim’s injured face and hand.
The victim’s failure to testify is inconsequential, as
circumstantial evidence suffices. (See Zamudio, supra, 43
Cal.4th at p. 357.) Moreover, carjacking requires the use of force
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or fear, and the evidence showed Barragan used force. The
fighting here—which lasted around one minute—was enough.
Similarly, the evidence establishes a taking without
consent and with intent to deprive: Barragan fought the victim
until the latter could not fight back and then drove his car away
while the victim lay bleeding. He never returned the car.
Instead, police found it in Hawthorne, the city where Barragan
lived.
Barragan’s insufficiency challenge fails.
D
Finally, Barragan argues his sentence is unlawful and the
case must be remanded for resentencing because the jury did not
find any aggravating circumstance beyond a reasonable doubt as
required by Senate Bill No. 567 (2021-2022 Reg. Sess.) (SB 567).
The prosecution concedes the new law applies but argues remand
is unnecessary because the trial court found a prior conviction
true beyond a reasonable doubt and the failure to find other
aggravating circumstances using this burden of proof was
harmless. We agree with Barragan that remand is warranted,
but on different grounds.
We sketch the new law.
The new law applies to sentencing after January 1, 2022.
It amends section 1170 to make the middle term the presumptive
sentence and to require the lower term in some situations.
(Stats. 2021, ch. 731, § 1.3; § 1170, subd. (b)(1) & (6); see also
People v. Dunn (2022) 81 Cal.App.5th 394, 402, review granted
Oct. 12, 2022, S275655 (Dunn) [outlining changes made by SB
567]; People v. Salazar (2022) 80 Cal.App.5th 453, 462, review
granted Oct. 12, 2022, S275788 [same].) It permits trial courts to
impose an upper term sentence only where the facts underlying
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relevant aggravating circumstances are stipulated to by the
defendant or found true beyond a reasonable doubt by the trier of
fact. (§ 1170, subd. (b)(2).) Courts may consider a defendant’s
prior convictions in determining sentencing, however, based on a
“certified record of conviction.” (§ 1170, subd. (b)(3).)
Regarding the circumstances requiring the lower term, we
excerpt the new and key statutory language:
[U]nless the court finds that the aggravating
circumstances outweigh the mitigating circumstances
that imposition of the lower term would be contrary
to the interests of justice, the court shall order
imposition of the lower term if any of the following
was a contributing factor in the commission of the
offense:
(A) The person has experienced psychological,
physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual
violence.
(§ 1170, subd. (b)(6).)
The trial court did not acknowledge this provision.
At Barragan’s sentencing, the court explained it was
selecting the high term of nine years in state prison after
reviewing the case facts and the video, which was “nothing short
of absolutely disturbing.” The court acknowledged the new
sentencing law and stated it believed the law did not apply. But
then it said: “even with the new law pursuant to Penal Code
section 1170 subdivision (b) subdivision (3), again, I am choosing
the high term in this matter based upon the certified record of
prior conviction and -- for the violation of Penal Code section 245
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subdivision (a) subdivision (2) [assault with a firearm], again, in
case BA193112.”
The court added that it also considered, “separate and
apart from the prior conviction,” that the crime involved great
violence and that there was an actual taking of great monetary
value under California Rules of Court, rule 4.421(a)(1) and (9).
(In contrast, the court did not explicitly ground its prior
conviction finding in any court rule.)
The trial court’s belief that the new law did not apply was
incorrect. The court sentenced Barragan in February 2022,
which was a month after the law took effect.
Although the court briefly assumed the new law’s
application when discussing aggravating circumstances, the court
acknowledged neither new subdivision (b)(6) nor the
circumstances where the low term is required. Nor did
Barragan’s new counsel alert the court to this provision. (See
People v. Panozo (2021) 59 Cal.App.5th 825, 828, 839–
840 [remanding for resentencing where the trial court was
unaware of its statutory obligation to consider service-related
mitigating factors; no forfeiture even though defense counsel
failed to raise this obligation].)
Our record includes a motion asserting a psychologist
evaluated Barragan and concluded he “is suffering from Post-
Traumatic Stress Disorder” and various mental illnesses “played
a significant role in the occurrence of the instant offense.” It is
unclear whether the trial court saw this psychologist’s report or
what else the psychologist concluded.
There is no sign the court recognized the potential
applicability of section 1170, subdivision (b)(6).
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Given these uncertainties, we remand this matter for a new
sentencing hearing under amended section 1170, subdivision (b),
at which the trial court may receive new evidence related to the
new law.
In light of this disposition, we need not reach the issue of
harmless error, an issue that has divided appellate courts over
the past year. (See Dunn, supra, 81 Cal.App.5th at pp. 398, 401,
408–410, review granted Oct. 12, 2022, S275655 [explaining
there are now three different standards for harmless error review
in the SB 567 context].)
DISPOSITION
We vacate Barragan’s sentence and remand this matter for
resentencing under section 1170, subdivision (b), as amended by
SB 567. We affirm the judgment in all other respects.
WILEY, J.
We concur:
STRATTON, P. J.
GRIMES, J.
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