People v. Barrcena

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THE PEOPLE, Plaintiff and Respondent, v. JOSE LUIS BARRCENA, Defendant and Appellant.

F085239

California Court of Appeals, Fifth District

April 11, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County Super Ct. No. F21907480 Jonathan B. Conklin, Judge.

Rachel Varnell, 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, Louis M. Vasquez, Amanda D. Cary, and Jesica Y Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY Acting P. J.

INTRODUCTION

A second amended information was filed on September 28, 2022 charging Jose Luis Barrcena with battery causing serious bodily injury on Sergeant Gary Coffey (Pen. Code, § 243, subd. (d), count 1),^[1] resisting the order of an executive officer (§ 69, counts 2 &3), and misdemeanor tampering with fire alarm apparatus (§ 148.4, subd. (a)(1), count 4). Count 1 alleged an enhancement for inflicting great bodily injury (§ 12022.7, subd. (a)), a violent felony within the meaning of section 667.5, subdivision (c)(8). A prior serious felony conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i) &1170.12, subds. (a)-(d)) was also alleged. A jury found Barrcena guilty of the first three counts, including the great bodily injury enhancement, and acquitted Barrcena of count 4. The jury also found the prior serious felony conviction allegation true.

The trial court denied Barrcena's motion to strike the great bodily injury enhancement on count 1 but did not sentence Barrcena on that allegation pursuant to section 654. The court also denied Barrcena's motion to strike the prior strike serious felony allegation. The court sentenced Barrcena to the midterm of three years on count 1, doubled to six years pursuant to the Three Strikes law. The court stayed punishment on count 2 pursuant to section 654 and imposed a sentence of two years on count 3 to be served concurrently to count 1.^[2] The court granted Barrcena 816 days of custody credits and imposed fines and fees not in contention on appeal.

Barrcena contends: (1) the trial court erred in failing to completely strike his great bodily injury enhancement (§ 12022.7, subd. (a)) because causing great bodily injury is an element of section 243, subdivision (d). Barrcena further contends: (2) the trial court abused its discretion in failing to strike his prior serious felony conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530 (Romero); (3) the trial court erred in failing to strike both his prior strike conviction and the great bodily injury enhancement pursuant to Senate Bill No. 81 (Stats. 2021, ch. 721, § 1; § 1385, subd. (c)(7)); (4) his trial counsel was ineffective for failing to make motions to strike his prior serious felony conviction and the great bodily injury enhancement.

After requesting supplemental briefing on the first issue, we conclude the trial court did not err in failing to strike the great bodily injury enhancement alleged as an enhancement to the count of battery causing serious bodily injury. The trial court correctly stayed Barrcena's sentence on the great bodily injury enhancement found true in count 1 pursuant to section 654. We reject Barrcena's other allegations of sentencing error and affirm the judgment.

FACTS

At 3:30 p.m. on September 21, 2021, Officer Hill Magpayo was on duty at Coalinga State Hospital and responded to duress and fire alarms from Barrcena's room. Water was coming from Barrcena's room, flooding the hallway. Other officers were yelling at Barrcena to open the door and exit the room. Officers were trying unsuccessfully to open the door. Only staff can lock the door. There was a window through which Magpayo could see that the solid steel bed was next to the door with electrical cords, curtains, and torn bedding securing the doorknob to the bed. Magpayo told Barrcena to open the door or officers would deploy pepper spray.

Magpayo could see Barrcena walking around the room. It sounded like Barrcena was breaking things. There was a lot of noise from his room. Officers were attempting to pry the door open with a baton as another officer tried to cut the cords with scissors. As the officers were trying to open the door Barrcena was throwing objects at them that he made by breaking up shelving from his wardrobe.

There was an opening in the window and a small opening in the doorway. Given his erratic behavior, Magpayo believed Barrcena was under the influence of a controlled substance or narcotics. Magpayo threw multiple OC containers into the room. An OC container is a pressurized can with a trigger that deploys a stream of pepper spray. The first can emptied to no effect because Barrcena was hiding from Magpayo and the spray did not directly reach Barrcena's face. To defeat the pepper spray, Barrcena had a rag or piece of cloth around his face, kept throwing water on his face, and was also throwing baby powder into the air. Magpayo used four cans of pepper spray. It took 15 minutes before officers could enter the room with riot shields.

Magpayo entered the room behind two officers holding shields. Entering the room was a challenge because the metal bed was still in front of the doorway. Magpayo saw Barrcena in the corner of the room elevated, standing on something that could have been a chair. Barrcena threw something that went past Magpayo's head. Magpayo ducked. The object, a board about 16 inches by 8 inches, cut his head and hit Sergeant Coffey in the head near his eyes. Coffey was directly behind Magpayo.

As Magpayo ducked, he heard another officer yell "officer down." Coffey was covered in blood. It took six officers to secure Barrcena. Securing Barrcena was difficult because he was resisting officers, the metal bed was in the middle of the room, and the floor was covered in water. Magpayo was also bleeding from his head. Magpayo was sent home where he experienced a headache for a day or two. He went back to work on the third day after the incident.

Sergeant Gary Coffey had worked as a police officer for Coalinga State Hospital for 15 years and prior to that as a psychiatric technician at Atascadero State Hospital. Coffey had no prior negative contacts with Barrcena. Coffey felt there was some urgency to get to Barrcena because Barrcena was hitting his head against the wall and was harming himself. Barrcena was breaking up the closet in his room.

As soon as officers got the door open, Barrcena started throwing things. As they entered the room Magpayo was in front of Coffey, something hit Coffey from above and his eyesight went black. The object thrown at Coffey hit him in the face, it was blunt and hit hard. Coffey fell backward. Coffey felt blood on his face, choked on the blood, and could not breathe. The wood that hit Coffey's face also crushed his eyeglasses which in turn punctured the top of his head.

Coffey was briefly examined in the Urgent Care Room before being transported by ambulance for treatment at Adventist Health in Hanford. On a scale of one to 10, Coffee described the pain as above a 10. He had difficulty breathing, headaches, and missed just over two weeks of work due to his injuries. It took time for Coffey to see a specialist. Coffey experienced constant headaches, difficulty sleeping, and numbness to his face. Coffey did not have surgery until May of 2022.

Dr. Mike Shin was the ear and nose specialist who treated Coffey for his injuries. Dr. Shin diagnosed Coffey with a nasal fracture, deviated septum to the left side, and turbinate hypertrophy-enlargement of the soft tissue filters inside the nose. The nasal bone overlying the mid portion of the face between the eyes was fractured in multiple small pieces. Because Dr. Shin initially saw Coffey a month after the injury, he had to wait six months for the bones to heal before he could operate on Coffey to address the deformity of the outside of the nose as well as the deviated septum which made it difficult for Coffey to breathe. The surgery took two hours to perform. It was done under general anesthesia and intubation. Dr. Shin had to surgically correct the septum and perform an osteotomy-breaking the nasal bones to correct the nasal bone deformity. Dr. Shin considered the surgery a success.

Barrcena testified that he tied the extension cords to his bed because he thought his life was in danger. Barrcena said some of the hospital workers were acting weird, as well as the patients. Barrcena thought he heard employees say something like Barrcena did not participate so they could "kill him here or take him away in an ambulance." Barrcena heard patients talking about what they were going to do to him. Barrcena began pacing back and forth.

After hearing things about the employees wanting to do things to him because he did not cooperate, Barrcena took cords he had in a bag, moved his bed to the door so it would not open, and tied the cords to the doorknob. Barrcena said he caused the sprinklers in his room to go off so the officers would come. Barrcena wanted to talk to several employees. Employees came up to his room wanting to talk to him, but Barrcena did not open the door because of the threats against his life. Barrcena used a pencil to poke the sprinklers.

Barrcena denied he was ever told to open his door. Barrcena explained that they were pumping something with smoke into his room but it did not look like a tear gas can. Barrcena used clothes, like a handkerchief or bandana, and wet everything to protect himself from the effects of the spray. Barrcena denied throwing his personal property or banging his head on the wall. ...