People v. Barragan CA2/2 ( 2022 )

Filed 4/27/22 P. v. Barragan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA068035)
v.
JOSE BARRAGAN,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed.
Susan Wolk, 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, Assistant
Attorney General, Daniel Change and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jose Barragan (defendant)
appeals from the summary denial of his petition for vacatur
and resentencing pursuant to Penal Code section 1170.95.1 He
contends that the trial court erred in failing to appoint counsel
and entertain briefing, and in ruling that the petition was
barred as a successive petition or a motion for reconsideration
of defendant’s prior petition. Defendant also contends that in
his petition he made a prima facie showing that he falls within
the provisions of section 1170.95 and that the jury’s true
finding in his murder trial pursuant to section 190.2,
subdivision (a)(17) did not bar relief as a matter of law.
We agree that the trial court erred in summarily denying
the petition without appointing counsel and entertaining
briefing, and that the petition should not have been barred as a
successive petition or motion for reconsideration. However, we
find the errors to be harmless. The jury’s true finding that the
murder was committed while defendant was engaged in a
specified felony pursuant to section 190.2 precluded a prima
facie showing for relief under section 1170.95, as a matter of
law. We thus affirm the trial court’s order.
The 1994 murder conviction
Defendant was convicted in 1994 of murder and robbery.2
As to the murder, the jury found true the special circumstance
that the murder was committed during the course of a robbery.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Defendant was also convicted of two additional robbery
counts, attempted murder, shooting a firearm at an inhabited
dwelling, and grand theft vehicle.
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(§ 190.2, subd. (a)(17)(A).) The jury also found true the
allegation pursuant to section 12022, subdivision (a)(l) that a
principal was armed with a firearm during the commission of
the crimes. (See People v. Barragan (Apr. 4, 1996, B086562)
[nonpub. opn.] (Barragan I).) Defendant was sentenced to life
in prison without the possibility of parole and other
consecutive terms. We affirmed the judgment in Barragan I.
The appellate opinion in Barragan I summarized the
facts presented at trial as follows:
“Jose Gallarzo worked at 1906 East First
Street, near State Street. He was shot by a rifle at
about 9 p.m. in an alley behind his place of
business. Neighbors heard brief, loud arguing in
Spanish and then three shots. One neighbor,
Olivia Escobedo Gonzalez, heard the argument
before the shooting started; saw one man hold the
victim while the other assailant had a gun pointed
at him; and shouted to let the man go; but the
assailant with a gun turned around and told her,
in English, to shut up. Another neighbor, Juan
Herrera, ran downstairs after hearing the shots
and saw two people who looked Hispanic running
away. One was wearing jeans and a white tee
shirt, and he tried to stick something in his
waistband. The victim was screaming, shouting
‘Me dieron’ or ‘They hit me. They hit me.’ A lot of
blood was coming from his abdominal area. [¶]
Another witness, Francisco Ignacio, was with his
girlfriend in a van in the alley completing her
homework when he heard three shots and tried to
leave the alley. He encountered Gallarzo’s body,
stopped, and got out. Gallarzo, in pain, told him
‘dos morros’ (two young guys) attempted to rob
him, tried to steal his wallet, shot him, and ran
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towards State Street. [¶] Gallarzo told Officer
Sanchez that he had been shot by two male
Hispanics, who were about 24 to 27 years old. One
wore a black baseball hat, black shirt, and black
pants. The other wore a white baseball cap and T-
shirt with black pants. Sanchez accompanied the
victim to the hospital; he died within one and one-
half hour of massive bleeding caused by two
gunshot wounds. [¶] When Mrs. Gallarzo received
his personal effects, the chain and new watch he
was wearing that night were not among them. The
police discovered this on November 23, 1992, when
they interviewed her following Barragan’s
November 18 statement.” (Barragan I, supra,
B086562, fns. omitted.)
The opinion’s summary of defendant’s statement to law
enforcement is set forth in part as follows:
“[Defendant] told Sanchez that on
November 8, he had repaired the subject blue
Oldsmobile, which belonged to his girlfriend. He
and [Daniel] Cabral, known as ‘Stranger,’ went
riding around the area; Cabral had a
semiautomatic rifle with an ammunition clip.
They went to an alley near First and State where
Cabral held a rifle on Gallarzo, removed the
victim’s gold chain and religious medallion (later
given to Cabral’s girlfriend), and shot the victim
when he refused to hand over his money. They
ran, stashed and then retrieved the rifle, and drove
toward St. Louis Street.” (Barragan I, supra,
B086562.)
Section 1170.95
In 2018, the Legislature passed Senate Bill No. 1437
(2017-2018 Reg. Sess.), which amended the laws pertaining to
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felony murder and murder under the natural and probable
consequences doctrine, “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); see People v.
Gentile (2020) 10 Cal.5th 830, 842.) Senate Bill No. 1437 also
added former section 1170.95, which provided a procedure for
those convicted of murder to retroactively seek relief if they
could not be convicted under sections 188 and 189 as amended
effective January 1, 2019. (People v. Lewis (2021) 11 Cal.5th
952, 959 (Lewis).) The statute allowed for vacatur of the
murder conviction and resentencing by filing a petition
alleging that (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural
and probable consequences doctrine,” (2) he “was convicted of
first degree or second degree murder following a trial,” and (3)
he “could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, former subd. (a).)3
Upon the filing of a petition alleging all the enumerated
conditions for relief under section 1170.95, the statute requires
3 In 2021, Senate Bill No. 775 (2021-2022 Reg. Sess.),
which amended section 1170.95, was enacted. (Stats. 2021, ch.
551, § 2.) Effective January 1, 2022, section 1170.95,
subdivision (a)(2) applies to those convicted of not only murder,
but also attempted murder or manslaughter under the natural
and probable consequences doctrine. (§ 1170.95, subd. (a).)
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the trial court to take the allegations as true, appoint counsel if
requested, and entertain briefing, regardless of whether the
record of conviction demonstrates that the defendant is not
entitled to relief. (Lewis, supra, 11 Cal.5th at pp. 957, 962-963,
971-972;4 see § 1170.95, subds. (b), (c).) After the appointment
of counsel and considering the parties’ briefs, the court may
review the record of conviction to determine the truth of the
allegations of the petition and to aid the court in assessing
whether a petitioner has made a prima facie showing. (Lewis,
at pp. 957, 972.) If not, the petition may be summarily denied.
If so, the court must then issue an order to show cause and
schedule an evidentiary hearing. (Ibid.) At the show cause
hearing, the prosecution bears the burden of proving beyond a
reasonable doubt that the petitioner is ineligible for section
1170.95 relief. (§ 1170.95, subd. (d)(1) & (3).)
Defendant’s two section 1170.95 petitions
On August 23, 2019, defendant filed a petition for
vacatur of his murder conviction and for resentencing pursuant
to section 1170.95. The petition sufficiently alleged the
required conditions and requested counsel. The trial court
summarily denied the petition without appointing counsel or
receiving briefs. The court reviewed the record of conviction
4 Published July 26, 2021, after both of defendant’s two
petitions had been denied, Lewis resolved a split of authority
among the Courts of Appeal regarding whether section 1170.95
permitted the trial court to review the record of conviction
prior to appointing counsel and receiving briefs to determine
whether defendant had made the prima facie showing required
by section 1170.95, subdivision (c). (Lewis, supra, 11 Cal.5th at
pp. 957, 972.)
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and found that, although the jury was instructed with regard
to felony murder and that defendant was not the actual killer,
defendant was ineligible for relief. The court explained that in
this case, defendant was charged with a special circumstance
pursuant to section 190.2, subdivision (a)(17). The jury was
instructed with CALJIC No. 8.80.1, which required it to find,
beyond a reasonable doubt, that if defendant was not the
actual killer, he aided and abetted the murder with the intent
to kill or was a major participant who aided and abetted the
robber and acted with reckless indifference to human life. The
jury found the special circumstance allegation to be true. The
jury then made the exact findings that is required by the newly
amended section 189. As such, defendant does not fall within
the purview of those who are entitled to the relief provided in
section 1170.95. Defendant failed to file a timely notice of
appeal from the order denying his first petition.
On August 10, 2020, defendant filed another section
1170.95 petition, again alleging the three required conditions
and requesting appointment of counsel. On August 25, 2020,
the trial court summarily denied the petition without
appointing counsel or receiving briefs. The court found that
the petition was a successive petition because it raised the
same claims as those raised in defendant’s prior petition,
which the court had denied on October 17, 2019. The court
held there was no right to file a successive petition and denied
it on that ground. The court added that if treated as a motion
for reconsideration, the petition would not be granted as it did
not raise any new issues justifying reconsideration of the
court’s original ruling.
Defendant filed a timely notice of appeal from that order.
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DISCUSSION
Defendant contends that the trial court erred in ruling
that his petition was procedurally barred as a successive
petition, that the trial court erred in summarily denying the
petition without appointing counsel and allowing the parties to
file briefs, and that the trial court erred in ruling that a true
finding as to the special circumstance alleged under section
190.2, subdivision (a)(17) renders a section 1170.95 petitioner
ineligible for relief as a matter of law. Defendant argues that
the court should have held an evidentiary hearing conducted
pursuant to section 1170.95, subdivision (d)(3) to determine
whether defendant was a major participant in the robbery who
acted with reckless indifference to human life under factors set
forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).
We agree that as defendant’s petition alleged all three
conditions and requested appointment of counsel, the trial
court was required to appoint counsel and allow the parties to
file briefs before considering the record of conviction.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 957, 962-
963, 971-972.) We also agree that defendant’s second petition
was not barred as a successive petition as there exists a
disagreement among Courts of Appeal regarding the
Banks/Clark issue. As of the date the court denied the
petition, at least two appellate courts had ruled that a true
finding under section 190.2, subdivision (a)(17) precluded a
defendant from making a prima facie showing of entitlement to
relief even if that finding, like defendant’s conviction, predated
the decisions in Banks and Clark. (See, e.g., People v. Galvan
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(2020) 52 Cal.App.5th 1134, 1142; People v. Gomez (2020) 52
Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033.)
At the same time at least two appellate courts had reached the
opposite conclusion. (See, e.g., People v. Smith (2020) 49
Cal.App.5th 85, 93, review granted July 22, 2020, S262835;
People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review
granted June 24, 2020, S262011, abrogated on other grounds
in Lewis, supra, 11 Cal.5th at p. 963.) As the prosecution
points out, these cases represented significant new case law
interpreting the issue, which is now pending before the
Supreme Court in People v. Strong (Dec. 18, 2020, C091162)
(nonpub. opn.), review granted March 10, 2021, S266606. Had
counsel been appointed it is possible that he or she could have
argued that the second petition was not procedurally barred as
successive under principles of collateral estoppel. (See People
v. Farfan (2021) 71 Cal.App.5th 942, 949-951.)
That said, we find the failure to appoint counsel and
permit briefing to be harmless. When a court erroneously
denies a petition without appointing counsel, the petitioner
bears the burden to demonstrate resulting prejudice under the
standard of People v. Watson (1956) 46 Cal.2d 818, 836, by
showing a reasonable probability of a different result had the
court not erred. (See Lewis, supra, 11 Cal.5th at p. 973.)
Defendant has not and cannot demonstrate prejudice here.
Error in summarily denying a petition is harmless if the record
of conviction demonstrates ineligibility for relief as a matter of
law. (People v. Daniel (2020) 57 Cal.App.5th 666, 675.) As we
held in People v. Nunez (2020) 57 Cal.App.5th 78 (Nunez),
review granted January 13, 2021, S265918, a true finding
under section 190.2, subdivision (a)(17) renders a defendant
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ineligible for relief under section 1170.95 as a matter of law,
and “[t]he Banks and Clark decisions provide no basis for
challenging the jury’s factual finding that [defendant] either
intended to kill or was a major participant . . . .” (Nunez, at
pp. 92-97; accord, People v. Simmons (2021) 65 Cal.App.5th
739, 746-750, review granted Sept. 1, 2021, S270048; People v.
Jones (2020) 56 Cal.App.5th 474, 479-482, review granted
Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th
449, 457; People v. Gomez, supra, 52 Cal.App.5th at pp. 14-17,
review granted; People v. Galvan, supra, 52 Cal.App.5th at
pp. 1141-1143, review granted.)
Defendant disagrees with Nunez and the line of cases
taking a similar position. Defendant cites decisions reaching
the contrary conclusion and argues that they make a better
argument. (See, e.g., People v. Arias (2021) 66 Cal.App.5th
987, 1004, review granted Sept. 29, 2021, S270555; People v.
Pineda (2021) 66 Cal.App.5th 792, 795-796, review granted
Sept. 29, 2021, S270513; People v. Gonzalez (2021) 65
Cal.App.5th 420, 425, review granted Aug. 18, 2021, S269792;
People v. Secrease (2021) 63 Cal.App.5th 231, 236, 247, review
granted June 30, 2021, S268862; People v. Harris (2021) 60
Cal.App.5th 939, 956-958, review granted Apr. 28, 2021,
S267802; People v. York (2020) 54 Cal.App.5th 250, 258-263,
review granted Nov. 18, 2020, S264954; People v. Smith, supra,
49 Cal.App.5th at pp. 93-94, review granted; People v. Law
(2020) 48 Cal.App.5th 811, 821-822, review granted July 8,
2020, S262490; People v. Torres, supra, 46 Cal.App.5th at
pp. 1179-1180, review granted.)
We see no need to repeat arguments that have been
thoroughly addressed in the above cited opinions. We stand by
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our analysis in Nunez and disagree that the opinions stating
the contrary view reflect a better argument. We thus hold that
the trial court’s error in summarily denying defendant’s second
opinion is harmless, as defendant is unable to make a prima
facie case for relief under section 1170.95.
DISPOSITION
The order denying the section 1170.95 petition is
affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
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