People v. Barragan CA2/4

Filed 6/22/21 P. v. Barragan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B304388
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA242184)

v.

ADRIAN BARRAGAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles
County, Robert J. Perry, Judge. Affirmed.
Kevin D. Sheehy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez, Supervising Deputy Attorney
General, and Stacy S. Schwartz, Deputy Attorney General, for Plaintiff
and Respondent.
 This appeal is from the trial court’s summary denial of defendant
and appellant Adrian Barragan’s motion for resentencing under Penal
Code section 1170.95.1
By information in November 2003, appellant and his cousin
Daniel Robert Barragan were charged with murder (§ 187, subd. (a),
count 1), two counts of attempted murder (§ 664/187, subd. (a), counts
2-3), and shooting at an occupied motor vehicle (§ 246).2 The
information also alleged, inter alia, that: appellant intentionally killed
the victim while actively participating in a criminal street gang
(§ 190.2, subd. (a)(22)); the murder was intentional and perpetrated by
means of discharging a firearm from a motor vehicle (§ 190.2, subd.
(a)(21)); and Daniel personally and intentionally discharged or used a
firearm causing great bodily injury or death (§ 12022.53, subd. (d)).
Appellant and Daniel were jointly tried. By general verdict in
2004, a jury found appellant guilty of first degree murder, attempted
willful, deliberate and premeditated murder, and shooting at an
occupied vehicle. The jury also found true the gang-murder special
circumstance and firearm enhancement allegation. The jury returned
no verdict on the special circumstance allegation that the murder was
perpetrated by means of discharging a firearm from a motor vehicle. In
a bifurcated proceeding, the trial court sentenced appellant to an

1 Undesignated statutory references are to the Penal Code.

2 For ease of reading, we refer to Daniel Barragan by his first name.
Daniel is not a party to this appeal.

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overall term of life imprisonment without the possibility of parole, plus
25 years for the firearm enhancement.
In 2019, appellant filed a petition for resentencing under section
1170.95, which provides that persons who were convicted under
theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) Prior to
the appointment of counsel or briefing by the parties, the trial court
summarily denied appellant’s petition. Relying on the facts as stated in
appellant’s direct appeal (People v. Barragan (Nov. 29, 2005, B175130)
[nonpub. opn.] (Barragan I)), the court reasoned that the “evidence at
trial clearly demonstrated [appellant] acted with an intent to kill and as
a major participant in the crime.” Based on these findings, the court
concluded that appellant was ineligible for relief as a matter of law.
In this appeal, appellant contends that the trial court erred by
summarily denying his petition without appointing him counsel, as he
requested, and by engaging in factfinding to determine his ineligibility
for relief as a matter of law. We conclude that though the trial court’s
engaging in factfinding was in error, the conclusion it reached was not.
As the non-shooter in this case, appellant was tried as an aider and
abettor (CALJIC Nos. 3.00-3.01), and the jury was instructed on three
theories of first degree murder: premeditated murder, drive-by murder,
and a felony murder theory (based on a modification of standard
instructions) based on the discharge of a firearm from a motor vehicle

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(CALJIC Nos. 8.20, 8.25.1, 8.21). To convict appellant of first degree
murder as an aider and abettor under these theories, the jury was
required to find that he shared the intent of the perpetrator to kill the
victim. Because these theories remain valid in the wake of S.B. 1437
(see § 189, subd. (e)), appellant remains ineligible for relief as a matter
of law. We affirm.3

FACTUAL BACKGROUND4
Appellant and Daniel are members of the Eastside Clover Street
gang. The murder victim, Frank Ibarra, had been affiliated with the
gang when he was younger but had since disassociated himself from it.
Ibarra still lived in the gang’s territory, and on many prior occasions,
had been physically harassed by appellant and other gang members.
On the evening of January 17, 2003, Ibarra and his two
companions (Ruben Colunga and Ramon Lopez) went to a local Jack-in-
the-Box restaurant. After pulling his vehicle into the drive-thru lane,
Ibarra placed an order. As the three men waited, Ibarra saw appellant
next to him, seated in the driver’s seat of a sedan. Scared and shocked,
Ibarra pointed out appellant to his companions. Appellant was

3 In light of our conclusion, we do not reach appellant’s alternative
contention (with which the People agree) that the trial court’s alternative
basis for denying his petition—that S.B. 1437 and section 1170.95 are
unconstitutional—was in error.

4 We recite the factual and procedural background from our opinion in
Barragan I.

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accompanied by two other people—his cousin Daniel in the front
passenger seat, and an unidentified individual in the back seat.
Appellant stared at the men in a threatening manner.
Ibarra quickly tried to drive away from the restaurant, but
appellant moved his car to block him. Ibarra drove toward another exit.
While Ibarra’s vehicle passed by appellant’s, appellant called Ibarra
and his companions names. Then, “[appellant] made a U-turn in his car
and followed Ibarra’s vehicle around the restaurant parking lot. As
Ibarra was about to exit onto the street, [Daniel] leaned out of the front
passenger window and shot multiple times at Ibarra’s vehicle.”
Colunga was wounded, and Ibarra was killed by a single gunshot
wound to the head. His vehicle crashed into a tree. The impact of the
crash injured Lopez. After the crash, shots continued to come from
appellant’s sedan. Appellant then drove away.
Police responded to the scene and identified three bullet holes in
Ibarra’s vehicle. Officers recovered six expended 9 millimeter
cartridges, one live 9 millimeter cartridge, and two spent 9 millimeter
bullets. During the course of several interviews, the surviving victims
made photographic identifications of appellant and Daniel.
Appellant’s girlfriend testified that she had lent her sedan to
appellant on the night of the shooting. From a photograph taken from a
Jack-in-the-Box surveillance tape, appellant’s girlfriend identified
appellant as the driver of the sedan.
According to expert testimony, the shooting was gang motivated.
The murder bolstered the defendants’ reputations within the Eastside

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Clover Street gang, and showed the community that the gang would
punish an individual, such as Ibarra, for disassociating from the gang.
Neither appellant nor Daniel testified. During closing argument,
appellant’s trial counsel argued that despite driving the sedan during
the shooting, appellant lacked the requisite mental state to be liable as
an aider and abettor to Ibarra’s murder. The prosecution argued that
Daniel was the actual shooter, and appellant was liable as an aider and
abettor to drive-by murder.

PROCEDURAL BACKGROUND
In appellant’s direct appeal in 2005, we reversed his two
convictions for attempted murder based on instructional error,5 but
otherwise affirmed the judgment. In 2018, appellant filed a petition for
writ of habeas corpus seeking relief under People v. Chiu (2014) 59
Cal.4th 155, 158. The trial court denied the petition, and explained
that the jury had not been instructed on aider and abettor liability for
first degree premeditated murder under the natural and probable
consequences doctrine.

5 During deliberations, the jury submitted a question to the court as
follows: “Is a defendant guilty of attempted murder of person B if he or she:
[¶] . . . [i]ntends to kill person A but wounds person B?” As to both
defendants, the court gave an instruction on the kill zone theory of attempted
murder (CALJIC No. 8.66.1). We found the supplemental instruction
properly given as to Daniel, but found submission of the instruction as to
appellant to be in error. (See Barragan I, supra, at p. 12 [the instruction
“permitted the jury to convict [appellant] of attempted murder on a legally
unsound basis: vicarious liability for his codefendant’s intent to create a ‘kill
zone’”].)

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 On November 14, 2019, appellant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Appellant requested
that counsel be appointed on his behalf.
The day after the petition was filed, the trial court summarily
denied it in a written memorandum. After setting forth the facts of the
case as we discussed in Barragan I, the court found that the “trial
evidence clearly established, and the jury found, that [appellant] acted
with an intent to kill and was a major participant who acted with
reckless indifference to human life.”
Appellant timely filed a notice of appeal.

DISCUSSION
Appellant contends that that trial court erred by summarily
denying his petition without appointing him counsel and receiving
briefing by the parties. He also contends the court committed error by
weighing the facts in Barragan I to determine whether he was ineligible
for relief as a matter of law.
Prior to the hearing on this appeal, we sent the parties a letter
directing them to address the following three issues: (1) whether under
the modified jury instruction for felony murder based on the discharge
of a firearm from a motor vehicle (CALJIC No. 8.21), the jury
necessarily determined that appellant, as an aider and abettor, had
knowledge of the unlawful purpose of the perpetrator and the intent or
purpose of committing or facilitating the commission of that crime, and

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by act or advice aided, promoted, or instigated the commission of the
crime; (2) whether, if the answer to question (1) is yes, appellant is
ineligible for relief as a matter of law if convicted on that theory; and
(3) whether the remaining theories of first degree murder remain valid
following the enactment of SB 1437.
In their supplemental briefs, appellant answered these questions
in the negative, and the People answered them in the affirmative. We
agree with the People.

1. Proceedings Under Section 1170.95
The legislature enacted S.B. 1437 “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.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord,
§ 189, subd. (e).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony murder or murder under the natural and

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probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
the petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
Subdivision (c) of section 1170.95 provides: “The court shall
review the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall appoint
counsel to represent the petitioner. The prosecutor shall file and serve
a response within 60 days of service of the petition and the petitioner
may file and serve a reply within 30 days after the prosecutor response
is served. These deadlines shall be extended for good cause. If the
petitioner makes a prima facie showing that he or she is entitled to
relief, the court shall issue an order to show cause.” (§ 1170.95, subd.
(c).) The remainder of section 1170.95 sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.
Consistent with many defendants before him, here appellant
contends that subdivision (c) mandates that prior to denying a petition
for resentencing, the court must appoint counsel, if requested, and
accept briefing by the parties. As we have noted in our previous

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opinions, this contention has been rejected by numerous courts, and the
issue is currently before our Supreme Court. (Lewis, supra, 43
Cal.App.5th at pp. 1137–1140; People v. Cornelius (2020) 44
Cal.App.5th 54, 58, rev. granted, S260410, Mar. 18, 2020; Verdugo,
supra, 44 Cal.App.5th 320.)
We continue to follow the procedure as set forth in Verdugo,
supra, 44 Cal.App.5th 320. In that case, the court reasoned that
subdivision (c) of section 1170.95, prescribes “a two-step process” for the
court to determine if it should issue an order to show cause. (Verdugo,
supra, 44 Cal.App.5th at p. 327.) The court first “review[s] the petition
and determine[s] if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section.” (§ 1170.95,
subd. (c).) The petitioner makes a prima facie showing so long as the
assertions in his or her petition are not conclusively refuted by facts in
the record of conviction as a matter of law. (Verdugo, supra, at p. 327;
see People v. Drayton (2020) 47 Cal.App.5th 965, 968, 980; see also
People v. Duchine (2021) 60 Cal.App.5th 798; but see People v. Garcia
(2020) 57 Cal.App.5th 100, 116, rev. granted, Feb. 10, 2021, S265692.)
If the petition states a prima facie case at the first prima facie stage of
review, the court shall then appoint counsel, if requested, and review
the petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Verdugo, supra,
44 Cal.App.5th at p. 327; see Lewis, supra, 43 Cal.App.5th at p. 1140.)

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2. Relevant Background: Jury Instructions and Verdict
The jury was instructed on three alternative theories of first
degree murder. The first two theories were premeditated murder and
drive-by murder under the standard CALJIC instructions (CALJIC Nos.
8.20, 8.25.1).6 The third theory was a version of felony murder based on
the discharge of a firearm from a motor vehicle. As to this theory, the
trial court gave a modified version of CALJIC No. 8.21, as follows:
“The unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission or
attempted commission of the crime [of] discharging a firearm from a
motor vehicle intentionally at another person outside of the vehicle with
the intent to inflict death is murder of the first degree when the
perpetrator had the specific intent to commit that crime. [¶] The
specific intent to commit said offense and the commission or attempted
commission of that crime must be proved beyond a reasonable doubt.”
Regarding these theories of culpability, the court further
instructed the jury on the following principles of aiding and abetting:
“Persons who are involved in committing a crime are referred to
as principals in that crime. . . . Principals include: [¶] 1. Those who
directly and actively commit the act constituting the crime, or [¶] 2.

6 CALJIC No. 8.20 provided inter alia that “[a]ll murder which is
perpetrated by any kind of willful, deliberate and premeditated killing with
express malice aforethought is murder of the first degree.”
CALJIC No. 8.25.1 provided: “Murder which is perpetrated by means
of discharging a firearm from a motor vehicle intentionally at another person
outside of the vehicle when the perpetrator specifically intended to inflict
death, is murder of the first degree.”

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Those who aid and abet the commission of the crime.” (CALJIC No.
3.00.) “A person aids and abets the commission of a crime when he: [¶]
(1) With knowledge of the unlawful purpose of the perpetrator, and [¶]
(2) With the intent or purpose of committing or encouraging or
facilitating the commission of the crime, and [¶] (3) By act or advice
aids, promotes, encourages or instigates the commission of the crime.
[¶] . . . [¶] Mere presence at the scene of a crime which does not itself
assist the commission of the crime does not amount to aiding and
abetting. [¶] Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.” (CALJIC
No. 3.01.)
By general verdict, the jury found appellant guilty of first degree
murder. The verdict form did not specify which theory of first degree
murder it found to be true.

3. The Record of Conviction Establishes as a Matter of Law that
Appellant is Ineligible for Resentencing

It is undisputed that appellant was tried and convicted not as the
actual killer, but as an aider and abettor. (See Barragan I, supra, at
pp. 2, 7.) It is also undisputed that the jury was instructed on three
different theories of first degree murder against both defendants:
(1) premeditated murder; (2) drive-by murder; and (3) felony murder
based on the intentional discharge of a firearm from a motor vehicle.
Appellant does not dispute that he would be ineligible for relief as
a matter of law if he were convicted as an aider and abettor under the
first two theories of culpability. We find the concession well taken. To

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convict appellant of either theory as an aider and abettor, the jury was
required to find that he harbored the specific intent to kill the victim.
(See Verdugo, supra, 44 Cal.App.5th at p. 335 [premeditated murder];
People v. Chavez (2004) 118 Cal.App.4th 379, 386–387 [drive-by
murder] (Chavez); see also Lewis, supra, 43 Cal.App.5th at p. 1135
[“[o]ne who directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable under
the old law”].)
However, appellant contends that because the jury returned a
general verdict for first degree murder, it could have convicted him as
an aider and abettor under the third theory of liability for felony
murder based on the intentional discharge of a firearm from a motor
vehicle. He contends that his liability for first degree murder as an
aider and abettor under this theory, as presented in the modified
version of CALJIC No. 8.21, did not require a finding that he intended
to kill. We disagree.
An aider and abettor must “‘“share the specific intent of the
perpetrator,”’” meaning he or she must “‘“know[] the full extent of the
perpetrator’s criminal purpose and give[] aid or encouragement with the
intent or purpose of facilitating the perpetrator’s commission of the
crime.” [(People v. Beeman (1984) 35 Cal.3d 547, 560.)]’ (People v.
Prettyman [(1996)] 14 Cal.4th [248,] 259.) What this means here, when
the charged offense and the intended offense—murder . . . —are the
same, i.e., when guilt does not depend on the natural and probable
consequences doctrine, is that the aider and abettor must know and

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share the murderous intent of the actual perpetrator.” (People v. McCoy
(2001) 25 Cal.4th 1111, 1118 (McCoy), fn. omitted.)
In the instant case, the jury was instructed on these principles of
aiding and abetting. (See CALJIC No. 3.01.) Because the target offense
listed in the felony murder instruction required the perpetrator to
discharge a firearm “with the intent to inflict death,” to convict
appellant of first degree murder under this theory as an aider and
abettor, the jury was required to find beyond a reasonable doubt that he
knew the full extent of the unlawful purpose of the perpetrator and
gave aid or encouragement with the intent or purpose of facilitating the
commission of the drive-by murder. (Ibid.) In other words, the jury was
required to find that he knew and shared the murderous intent of the
actual shooter. (Compare CALJIC No. 3.01 with McCoy, supra, 25
Cal.4th at p. 1118; see Chavez, supra, 118 Cal.App.4th 379, 387.)7
Anticipating this result, appellant contends that the modified
instruction is ambiguous because it contemplates a conviction for a
killing “whether intentional, unintentional or accidental.” He asserts
that the word “unintentional” as one of three options for an unlawful

7 It is for this reason that the Fifth District held that “the drive-by-
shooting clause added to section 189 . . . is not an enumerated felony for
purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App.4th at
p. 386; see id. at p. 385 [“Although the drive-by-shooting clause appears
immediately after the list of enumerated felonies in section 189, it is clear
from the content of the clause that drive-by shooting is not part of that list.
The drive-by-shooting clause requires an ‘intent to inflict death’ which is
never an element of felony murder”].) We do not endeavor to analyze the
propriety of the modified felony murder instruction in this case, as appellant
did not raise this claim of error in his direct appeal. (See People v. Allison
(2020) 55 Cal.App.5th 449, 461.)

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killing “is ambiguous and uncertain as to whose state of mind it refers
to.”
Neither the jury nor this reviewing court construes in isolation a
sentence fragment appearing in a jury instruction. Indeed, the trial
court in this case instructed the jury to do the very opposite: “Do not
single out any particular sentence or any individual point or instruction
and ignore the others. Consider the instructions as a whole and each in
light of all the others.” (CALJIC No. 1.01.) We also review the
instructions as a whole, and presume that the jurors are intelligent and
able to understand and correlate the trial court’s instructions to the
facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130; People v.
Cain (1995) 10 Cal.4th 1, 36.)
When the instructions are viewed as a whole, it is clear the word
“unintentional” did not mislead the jury into shirking its responsibility
to analyze appellant’s conduct and state of mind as an aider and abettor
to drive-by murder. As we have already discussed, the mental state
required for that theory of liability was the specific intent to kill.
Likewise, in convicting appellant of first degree murder, the jury found
true the special circumstance allegation that appellant intentionally
killed the victim while he was an active participant in a criminal street
gang (§ 190.2, subd. (a)(22)). This special circumstance requires a
finding of an intent to kill. (See ibid. [“[t]he defendant intentionally
killed the victim while the defendant was an active participant in a
criminal street gang”].) This confirms that appellant’s conviction was
necessarily based on his intent to kill the victim as an aider and abettor
in the murder.

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 In sum, because all three theories of first degree murder in this
case required a finding that appellant harbored an intent to kill, the
jury’s first degree murder verdict renders him ineligible for relief as a
matter of law. (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd.
(e).) Therefore, the court did not err in summarily denying his petition
for resentencing without the appointment of counsel. (See People v.
Smithey (1999) 20 Cal.4th 936, 972 [reviewing courts will affirm a
conviction if right upon any theory of the law applicable to the case
regardless of the trial court’s considerations].)

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.
We concur:

MANELLA, P. J.

CURREY, J.

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