People v. Barajas

1

THE PEOPLE, Plaintiff and Respondent, v. SAMUEL BARAJAS, Defendant and Appellant.

F085302

California Court of Appeals, Fifth District

February 15, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County, No SC054409A, John D. Oglesby, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Ismah Ahmad, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

DETJEN, Acting P. J. Defendant Samuel Barajas filed a petition for resentencing pursuant to former Penal Code^[1] section 1170.95 (now section 1172.6). The trial court denied the petition, finding defendant failed to establish a prima facie claim for relief. On appeal defendant contends he filed a facially sufficient petition. For the reasons set forth below, we affirm the trial court's order.

BACKGROUND

In an information dated July 6, 1993, defendant was charged with multiple offenses, including (1) conspiring with Fidel Arrez-Garcia, an individual named" 'Jose,'" and" 'other unnamed or unknown'" confederates to murder undercover narcotics officer Medina with use of a firearm, to commit robbery with use of a firearm, to kidnap for the purpose of robbery with use of a firearm, to commit assault with a firearm, and to possess cocaine for sale (§ 182, subd. (a)(1) [count one]); (2) "willfully and unlawfully, deliberately and with premeditation and malice aforethought" murdering Arrez-Garcia (§ 187, subd. (a) [count two]); and (3) "willfully and unlawfully, deliberately and with premeditation and malice aforethought" attempting to murder Medina (§§ 187, subd. (a), 664 [count three]). In connection with count one, the information alleged defendant personally used a firearm (§ 12022.5, subd. (a) &former subd. (c)) and-in furtherance of the conspiracy-"got out of [a] blue Pontiac carrying a stolen .380 caliber semi-automatic Colt Mustang Pocketlite pistol," "went behind undercover officer Medina as he was struggling with Fidel Arrez-Garcia," and "placed a gun barrel to the back of undercover officer Medina's head and forced him into a position bent over from the waist." In connection with counts two and three, the information alleged defendant personally used a firearm (§ 12022.5, subd. (a)).

At a September 21, 1993 readiness hearing, defendant waived reading of the information and received permission to withdraw a plea of not guilty and enter a plea of no contest. The hearing transcript detailed the following exchange:

"THE COURT: All right. Count 1 of the information alleges that between April 6th, 1993 and April 7th, 1993, you, Mr. Barajas, conspired with Fidel Arrez, a person named Jose and other unnamed co-conspirators to violate one or more of the following laws: One, the murder of [undercover officer] Medina; two, robbery with the use of a firearm; three, kidnap for purpose of robbery with use of a firearm; four, assault with a deadly weapon, firearms; five, possession of two kilograms of cocaine for sale.

"And that in the course of conspiring to do so the following overt acts were committed: That on April 7th, 1993, you got out of a blue Pontiac carrying a stolen .380 caliber semi-automatic Colt Mustang pistol . . .; . . . that on that same day you went behind undercover Officer Medina as he struggled with Fidel Arrez; and . . . that on that same day you placed a gun barrel to the back of undercover Officer Medina's head and forced him into a bent over position.

"To the charge in Count 1 of conspiracy to commit those crimes, how do you plead, sir? "THE DEFENDANT: No contest.

"THE COURT: And to those three overt acts which I have just recited, . . . do you admit or deny the overt acts?

"THE DEFENDANT: I admit them.

"THE COURT: All right. It is alleged that in the commission of the conspiracy you personally used a firearm within the meaning of Penal Code Section 12022.5 (a) and 12022.5 (c). And do you admit that allegation?

"THE DEFENDANT: Yes. [¶] . . . [¶]

"THE COURT: All right. As to Count 2, the allegation then is -People are going to move to amend Count 2 before I take the plea?

"[PROSECUTOR]: Yes. People will move as to Count 2 to amend to read violation of Penal Code Section 187 subparagraph (a) second or second degree murder.

"THE COURT: And I believe that also would involve the striking of the words and malice aforethought, would it not?

"[PROSECUTOR]: Yes, it would. "THE COURT: All right. And you stipulate to that amendment thus making it a second degree murder? "[DEFENSE COUNSEL]: I do, your Honor.

"THE COURT: All right. The charge in Count 2 as amended is that on or about April 7th, 1993, you willfully and unlawfully, deliberately and with premeditation murdered Fidel Arrez in violation of Penal Code Section 187(a) - excuse me, strike that. In violation of Penal Code Section -

"[PROSECUTOR]: I have it as 187(a). I would have to check that. I think it still would be a second degree.

"THE COURT: Yes, that's right. 187(a), it being a second degree murder, a murder perpetrated by provocative acts, how do you plead?

"THE DEFENDANT: No contest.

"THE COURT: And it is alleged that in the commission of this offense you personally used a firearm within the meaning of Penal Code Section 12022.5 (a). Do you admit that allegation?

"THE DEFENDANT: No contest.

"THE COURT: All right. Accept that. Count 3 alleges that on or about April 7th, 1993, you willfully and unlawfully, deliberately, with premeditation and malice aforethought attempted to murder [undercover officer] Medina, in violation of Penal Code Section 664, showing it as an attempt, 187(a), an attempted first degree murder, a felony. How do you plead to that charge?

"THE DEFENDANT: No contest.

"THE COURT: It is alleged that you used a firearm in the commission of that offense within the meaning of Penal Code Section 12022.5 (a). Do you admit that allegation?

"THE DEFENDANT: No contest."

At a November 4, 1993 sentencing hearing, the trial court imposed life with possibility of parole-plus four years for the firearm use enhancement-on count three and a consecutive 15 years to life with possibility of parole-plus four years for the firearm use enhancement-on count two.^[2]

On April 12, 2022, defendant filed a petition for resentencing pursuant to then- section 1170.95. He marked the following checkboxes:

"1. A complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder, 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. [Citation.]

"2. I was convicted of murder, attempted murder, or manslaughter following a trial or I accepted a plea offer in lieu of a trial at which I could have been convicted of murder or attempted murder. [Citation.]

"3. I could not presently be convicted of murder or attempted murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019. [Citation.]"

Shortly thereafter, per defendant's request, the trial court appointed counsel to represent him.

In their opposition, the People argued (1) the petition must be denied as to the second degree murder conviction because defendant "was convicted of murder under the provocative act theory, and not under the felony murder rule or the natural and probable consequences theory"; and (2) the petition must be denied as to the attempted murder conviction because defendant "was convicted of attempted first degree murder that was premeditated, willful, and committed with malice afor[]ethought, with personal use of a firearm." (Boldface &capitalization omitted.) Attached to the opposition as supporting evidence was the transcript of the September 21, 1993 readiness hearing.

Following a November 15, 2022 prima facie hearing, the trial court ruled:

"With the matter before the Court, the record is that the defendant pled guilty to second-degree murder, he pled guilty to attempted murder, he pled guilty to conspiracy and numerous allegations. Based upon the charges the defendant voluntarily pled to, I do not see how a prima facie case has been established. [¶] . . . [¶] . . . With that, the Court finds there is no prima facie showing in the petition that's been filed. The petition is denied."

DISCUSSION

I. Legal overview

"Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(20172018 Reg. Sess.)] 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, ch 1015, § 1, subd. (f).) "Through the passage of Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.)] the Legislature effectively eliminated the natural and probable consequences doctrine as it relates to murder convictions, and reduced the scope of the felony-murder rule." (People v. Prado (2020) 49 Cal.App.5th 480, 487.) "To effectuate these changes, the Legislature amended sections 188 and 189 ...." (Ibid.; see §§ 188, subd. (a)(3) ["Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her...