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NOT TO BE PUBLISHED

Order Filed Date 3/6/24

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.

ORDER MODIFYING OPINION AND DENYING REHEARING

THE COURT:

It is ordered that the opinion filed herein on February 15, 2024 be modified in the following particulars:

1. On page 13, the subheading that reads “d. Remaining contention” is deleted and the following subheading is inserted in its place:

e Defendant's remaining contention

2. On page 13, after the first full paragraph and before the subheading which now reads “e. Defendant's remaining contention” the following subheading and paragraphs are added:

d Curiel

Our Supreme Court issued People v. Curiel (2023) 15 Cal.5th 433 (Curiel) on November 27, 2023. In that case, a jury convicted Curiel of first degree murder and found true a gang-murder special-circumstance allegation (among other things) in 2006. (Id. at p. 440.) Following the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.), Curiel filed a petition for resentencing, alleging he had been convicted of murder under the natural and probable consequences doctrine and could not be convicted of murder under current law. (Ibid.) The trial court denied the petition based on the jury's gang-murder special circumstance finding, which incorporated an intent-to-kill finding and refuted Curiel's claim. (Ibid.) The appellate court reversed the order, finding the intent-to-kill finding showed Curiel "harbored a culpable mental state (mens rea)" (ibid.) but-as a matter of law-did not demonstrate he "committed a culpable act (actus reus)" (ibid.).

In affirming the appellate court's judgment (Curiel, supra, 15 Cal.5th at p. 471), the Supreme Court concluded "an intent to kill finding does not itself conclusively establish a petitioner is ineligible for relief" under section 1172.6 (Curiel, at p. 461). It reasoned: (1) at the prima facie review stage of a section 1172.6 petition, "a court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record" (Curiel, at p. 463); (2) "this allegation is not refuted by the record unless the record conclusively establishes every element of the offense" (ibid.); and (3) an intent-to-kill finding "is only one element" and "does not by itself establish any valid theory of liability" (ibid., italics added). However, the high court pointed out "[o]ther aspects of the record . . . might be relevant to the remaining elements of the relevant homicide offense and conclusively refute a petitioner's allegation that he or she could not be convicted of murder under current law." (Ibid.)

Defendant asserts that Curiel requires the trial court's order to be reversed. We disagree. Defendant entered a plea of no contest to conspiracy to murder Medina with use of a firearm (which necessarily requires intent to kill) and admitted certain overt acts in furtherance of said conspiracy, thus establishing both the mens rea and actus reus of two valid theories of murder (provocative act murder and premeditated attempted murder) and conclusively rebutting defendant's allegation he could not be convicted of murder under current law. Given how the instant case is "materially different" (Curiel, supra, 15 Cal.5th at p. 471), Curiel does not apply.

There is no change in the judgment.

Appellant's petition for rehearing is denied.

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...