People v. Barbarin CA4/2

         Filed 3/10/21 P. v. Barbarin CA4/2

                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
               California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
                                 publication or ordered published for purposes of rule 8.1115.


                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                        FOURTH APPELLATE DISTRICT

                                                      DIVISION TWO



 THE PEOPLE,

             Plaintiff and Respondent,                                    E074944

 v.                                                                       (Super.Ct.No. RIF145530)

 RICARDO ESTRADA BARBARIN,                                                OPINION

             Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge.

Affirmed with directions.

         Ricardo Estrada Barbarian, in pro. per.; Sharon G. Wrubel, under appointment by

the Court of Appeal, for Defendant and Appellant.

         No appearance for Plaintiff and Respondent.

         Defendant and appellant, Ricardo Estrada Barbarin, filed a petition for

resentencing pursuant to Penal Code section 1170.95,1 which the court dismissed. After


         1    All further statutory references are to the Penal Code unless otherwise indicated.
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defense counsel filed a notice of appeal, this court appointed counsel to represent

defendant.

       Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d

436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case

and identifying two potentially arguable issues: whether a true finding on a firearm

enhancement under section 12022.53, subdivision (c), precludes relief under

section 1170.95, as the enhancement does not mean defendant killed the victim, and

whether any recent retroactive sentencing legislation applies to an appeal from an adverse

decision under section 1170.95. Defendant was offered the opportunity to file a personal

supplemental brief, which he has done. Defendant contends he made a prima facie

showing that the jury convicted him under a theory of the felony-murder rule or murder

under the natural and probable consequences doctrine such that he is entitled to relief

under section 1170.95. We affirm.

                I. FACTUAL AND PROCEDURAL BACKGROUND2

       “At trial, the primary disputed issue was whether defendant was one of two men

who shot at a group of African-Americans, including 13-year-old Anthony Sweat, while

the group was sitting on two adjoining porches on the evening of July 14, 2002, in an

area of Riverside claimed by the East Side Riva (ESR) criminal street gang. At the time



       2 Pursuant to defense counsel’s request, we took judicial notice of our
nonpublished opinions in defendant’s prior appeals: People v. Barbarin (Feb 7, 2014,
E055565) and People v. Barbarin (Aug. 7, 2015, E061433). Likewise, pursuant to
defense counsel’s motion, we augmented the record to include the jury instructions and
written verdicts from case No. E055565.
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of the shooting, defendant was a documented and self-admitted ESR member.” (People

v. Barbarin, supra, E055565.) The People adduced both direct and circumstantial

evidence, including DNA evidence, placing defendant at the scene of the murder and

suggesting he had a motive for the killing. (Ibid.)

       The court instructed the jury with CALCRIM No. 520 (first or second degree

murder with malice aforethought) and CALCRIM No. 521 (first degree murder). The

court did not instruct the jury on the felony-murder rule or another theory of first degree

murder. (People v. Barbarin, supra, E055565.)

       The jury found defendant guilty as charged of first degree murder while actively

participating in a criminal street gang (§§ 189, 190.2, subd. (a)(22)) and the premeditated

attempted murders of four additional victims (§§ 664, 187, subd. (a)). (People v.

Barbarin, supra, E055565.) The jury also found that defendant had committed each

crime for the benefit of a criminal street gang (§ 186.22, subd. (b)), he had personally

discharged a firearm in each crime (§ 12022.53, subd. (c)), he was a principal

(§ 12022.53, subd. (d)), and that at least one principal personally and intentionally

discharged a firearm proximately causing great bodily injury or death to another person

not an accomplice (§ 12022.53, subd. (e)). Defendant admitted one prior strike

conviction (§§ 667, subds (a)-(i)), one prior serious felony conviction (§ 667, subd (a)),

and one prior prison term (§ 667.5, subd. (b)). (People v. Barbarin, supra, E055565.)

       On denying defendant’s motion for retrial, the court found sufficient evidence to

sustain the guilty verdicts and true findings by the jury. The court sentenced defendant to

life without the possibility of parole for the murder, plus 120 years to life for the gang-

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related attempted murders, plus 106 years based on the personal discharge of a firearm,

prior serious felony conviction, and prison prior term enhancements. (People v.

Barbarin, supra, E055565.)

       On appeal, defendant claimed there was insufficient evidence he was one of the

shooters. This court affirmed, holding that substantial evidence showed defendant was

one of the shooters; thus, supporting his murder and attempted murder convictions.

(People v. Barbarin, supra, E055565.)

       On August 13, 2019, defendant filed a petition for resentencing pursuant to

section 1170.95, asserting he had been convicted of first degree murder pursuant to the

felony-murder rule or the natural and probable consequences doctrine. The People filed

opposition, to which defense counsel filed a reply.

       At the hearing on the petition on February 28, 2020, the People argued: “We’d

also like to make a motion to dismiss this petition. This resentencing process applies to

cases where the defendant was convicted based on natural and probable consequences of

felony murder. [¶] According to the instructions in the record, no such instructions were

given on natural and probable consequences of felony murder.”

       The People continued: “The Appellate opinion imaging shows that the Court

found sufficient evidence that [defendant] is one of the actual shooters. As an actual

shooter, he’s not qualified or eligible for relief.” Defense counsel submitted on her

objection. The court noted that section 1170.95 “only applies to . . . the use of the natural

and probable consequences doctrine, a person would be the actual shooter, and I

reviewed these records, and, again, that the jury undoubtedly found that he was one of the

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shooters in the case” “Based on that fact, clearly, and at the very least, he’s a major

participant with a reckless indifference to human life. So based on the case law, I would

dismiss the petition under [section] 1170.95 at this time.”3

                                     II. DISCUSSION

       Defendant contends he made a prima facie showing that the jury convicted him

under a theory of the felony-murder rule or the natural and probable consequences

doctrine such that he is entitled to relief under section 1170.95. We disagree.

       “On September 30, 2018, . . . the Governor signed Senate Bill 1437. The

legislation, which became effective on January 1, 2019, addresses certain aspects of

California law regarding felony murder and the natural and probable consequences

doctrine by amending . . . sections 188 and 189, as well as by adding . . . section 1170.95,

which provides a procedure by which those convicted of murder can seek retroactive

relief if the changes in law would affect their previously sustained convictions.” (People

v. Martinez (2019) 31 Cal.App.5th 719, 722-723.)

       “Senate Bill 1437 was enacted 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



       3 The reporter’s transcript reflects that the court dismissed the petition. The
minute order indicates the court denied the petition. We shall direct the court to correct
the minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does
not control if different from the trial court’s oral judgment and may not add to or modify
the judgment it purports to digest or summarize.’”].) The reviewing court has the
authority to correct clerical errors in the minute order. (People v. Contreras (2009)
177 Cal.App.4th 1296, 1300, fn. 3.)
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to kill, or was not a major participant in the underlying felony who acted with reckless

indifference to human life.’ [Citation.] Substantively, Senate Bill 1437 accomplishes

this by amending section 188, which defines malice, and section 189, which defines the

degrees of murder, and as now amended, addresses felony murder liability. Senate Bill

1437 also adds the aforementioned section 1170.95, which allows those ‘convicted of

felony murder or murder under a natural and probable consequences theory . . . [to] file a

petition with the court that sentenced the petitioner to have the petitioner’s murder

conviction vacated and to be resentenced on any remaining counts . . . .’” (People v.

Martinez, supra, 31 Cal.App.5th at p. 723.)

       Here, by virtue of the instructions given, in order to convict defendant of first

degree murder, the jury was required to find that he deliberately committed an act that

caused the death of another person while having intended to kill. (CALCRIM Nos. 520-

521.) Thus, the jury necessarily decided that defendant was the actual killer; the jury did

not convict defendant pursuant to the felony-murder rule or the natural and probable

consequences doctrine. Therefore, defendant is not entitled to relief pursuant to

section 1170.95, and the court properly dismissed the petition.

       Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.




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                                    III. DISPOSITION

       The judgment is affirmed. The court is directed to modify its February 28, 2020

minute order to reflect that the court dismissed, rather than denied, defendant’s petition

for resentencing.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                McKINSTER
                                                                                Acting P. J.
We concur:



MILLER
                          J.



FIELDS
                          J.




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