Filed 7/28/22 P. v. Barnett CA4/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a postjudgment order of the Superior Court of San Bernardino, John M. Tomberlin, Judge. Affirmed in part and remanded with directions.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Charles Ragland and Julie L. Garland, Assistant Attorneys General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Defendant Michael Barnett, Jr., appeals from an order denying his petition for resentencing under Penal Code former section 1170.95 (now Penal Code, § 1172.6).[1] The trial court summarily denied the petition, concluding defendant was ineligible for relief as a matter of law because he was convicted of conspiracy to commit murder.

In 2021, another panel of this court affirmed the trial court’s denial of defendant’s petition. The California Supreme Court granted defendant’s petition for review and transferred the matter back to us with directions to vacate our decision and reconsider the case in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (Sen. Bill 775), which became effective on January 1, 2022. The parties filed supplemental briefs addressing the effect of Sen. Bill 775 on this appeal.

In accordance with the Supreme Court’s directions, we vacate our prior decision. As discussed below, we remand the matter for the trial court to consider defendant’s attempted murder convictions under Sen. Bill 775 in the first instance. But we adhere to and reissue our previous analysis as to defendant’s second degree murder conviction as the Supreme Court’s order does not affect the issues we previously considered. We also decline to consider any new claims outside the scope of the Supreme Court’s transfer order.

FACTS[2]

In 2008, a jury convicted defendant of second degree murder (§ 187, subd. (a); count 1), two counts of attempted murder (§§ 187, subd. (a), 664; counts 2 & 3), conspiracy to commit murder (§ 182, subd. (a); count 4), and shooting at an inhabited dwelling (§ 246; count 5). The jury also found firearm and gang enhancements to be true on all counts (§§ 186.22, subd. (b)(1), 12022.53, subd. (c)-(e).)

The trial court sentenced defendant to a total indeterminate sentence of 101 years to life in state prison as follows: (1) 15 years to life on count 1, plus 25 years to life for the firearm enhancement; (2) a consecutive term of nine years on count 2, plus 25 years to life for the firearm enhancement; and (3) a consecutive term of seven years to life on count 3, plus 20 years for the firearm enhancement. The trial court also imposed and stayed sentences on counts 4 and 5 pursuant to section 654 and the gang enhancements pursuant to section 12022.53, subdivision (e)(2).

Another panel of this court affirmed a modified judgment in 2011. (People v. Barnett (July 28, 2011, FSB053188) [nonpub. opn.] (Barnett I).) As noted in the prior opinion, defendant was convicted of second degree murder “for the senseless shooting death of [an] 11-year-old [girl], who died in a fusillade of bullets defendants and their cohorts fired into the wrong apartment in a mistargeted, retaliatory gang strike.” (Barnett I, supra, G041416.) “The jury also convicted [defendant] of two counts of attempted murder for seriously wounding the victim’s 14-year-old sister and for earlier mistargeting a compatriot just before the fatal barrage.” (Ibid.) Additional factual details concerning the crime may be found in this court’s prior opinion.

In 2019, defendant filed a petition seeking resentencing pursuant to section 1172.6. He requested his second degree murder conviction be vacated because his conviction was based on the felony murder rule and natural and probable consequences doctrine. The People filed an informal response and argued defendant failed to set forth a prima facie case for relief because he did not support his petition with any evidence in the record.

At the hearing, a conflict panel attorney appeared on behalf of defendant. The prosecutor argued defendant was not eligible for resentencing because he was “not only convicted of murder but was convicted of conspiracy to commit murder.” The trial court agreed and found “the conspiracy conviction [took] him out of eligibility for resentencing.” Given the conspiracy conviction, the trial court found defendant did “not [make] a prima facie showing of eligibility for resentencing . . . .”

In 2021, another panel of this court affirmed the trial court’s denial of defendant’s petition. As noted in that opinion, defendant was not entitled to resentencing with respect to the second degree murder conviction because the jury found him guilty of conspiracy to commit murder, which included an intent to kill. With respect to the two attempted murder counts, the opinion noted defendant was ineligible for relief because Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437) did not apply to attempted murder at the time. The California Supreme Court subsequently granted review and transferred the case back to this court to vacate our prior decision and reconsider the case in light of Sen. Bill 775.

DISCUSSION

Applicable Law

Sen. Bill 1437, effective January 1, 2019, 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 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).) It accomplished that purpose by substantively amending sections 188 and 189 and adding section 1172.6, such that persons convicted of felony murder or murder under a natural and probable consequences theory could seek resentencing or to have the conviction vacated. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959.) Sen. Bill 1437 also created a procedure, codified in section 1172.6, by which defendants could seek resentencing if their conduct did not constitute murder as redefined by Sen. Bill 1437. (People v. Lewis, supra, 11 Cal.5th at p. 957.)

In the couple of years after Sen. Bill 1437’s enactment, appellate courts were virtually unanimous in concluding the resentencing relief afforded by the legislation was limited to murder convictions and did not extend to persons convicted of attempted murder. (See, e.g., People v. Turner (2020) 45 Cal.App.5th 428, 435-436; see also People v. Paige (2020) 51 Cal.App.5th 194, 201-204.) The legislative landscape changed on January 1, 2022. Effective as of that date, Sen. Bill 775 amended section 1172.6 to expand resentencing eligibility to persons convicted of attempted murder.
Defendant’s Second Degree Murder Conviction

Defendant argues “[t]he court erred in relying on the conspiracy to commit murder conviction to deny the petition at the prima facie stage because the conspiracy was to murder someone other than the ultimate murder and attempted murder victims.” According to defendant, the conspiracy was to murder rival gang members, but the actual victims were “accidental victims.” He accordingly contends “the conspiracy verdict shows [he] intended to kill a rival gang member” but “it is still entirely possible [he] was convicted of murder as well as attempted murder of the girls . . . as a natural and probable consequence aider and abettor based on either a conspiracy or brandishing [a firearm] theory.”

With respect to the second degree murder conviction, the trial court correctly determined defendant was ineligible for resentencing because of the jury’s guilty verdict on the conspiracy to commit murder charge. On the conspiracy count, the trial court provided CALCRIM No. 563, which instructed the jury that defendant had to have an intent to kill to be guilty of conspiracy to commit murder. The instructions provided in relevant part: “To prove that a defendant is guilty of [conspiracy to commit murder], the People must prove that: [¶] 1. The defendant intended to agree and did agree with the other defendant . . . to intentionally and unlawfully kill; [¶] 2. At the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill . . . .” Thus, the jury’s guilty verdict on the conspiracy count necessarily required the jury to find defendant harbored a specific intent to unlawfully kill another human being. (People v. Johnson (2013) 57 Cal.4th 250, 263-264 [“‘A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act . . . .’”], italics added.) The jury accordingly could not find the second degree murder count was based on a natural and probable consequences doctrine.

Relying on CALCRIM Nos. 403 and 417, defendant argues the “jurors were instructed on the natural and probable consequence doctrine in both the aiding and abetting and conspiracy instruction.” The trial court provided the following CALCRIM No. 403 instruction: “To prove that a defendant is guilty of Murder and/or Attempted Murder, the People must prove that: [¶] 1. The defendant is guilty of Brandishing a Firearm; [¶] 2. During the commission of Brandishing a Firearm a co-participant in that Brandishing a Firearm committed the crime of Murder and/or Attempted Murder; [¶] AND [¶] 3. Under all of the circumstances, a reasonable person in the defendant’s position would have known that the commission of the Murder and/or Attempted Murder was a natural and probable consequence of the commission of the Brandishing a Firearm.”

CALCRIM No. 417 also instructed the jury that “[t]o prove . . . a defendant is guilty of the crimes charged in Counts 1 [murder], 2 [attempted murder], 3 [attempted murder], and 5 [shooting at an inhabited dwelling], the People must prove that: [¶] 1. The defendant conspired to commit one of the following crimes: Brandishing a Firearm and Murder; [¶] 2. A member of the conspiracy committed Murder, Attempted Murder, or Shooting at an Inhabited Dwelling to further the conspiracy; [¶] AND [¶] 3. Murder, attempted murder, or shooting at an inhabited dwelling were natural and probable consequences of the common plan or design of the crime that the defendant conspired to commit.” The instruction further informed the jury a conspirator “‘is . . . criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy.’”

When viewed in their proper context, these jury instructions do not change our conclusion. As the prosecutor argued in closing argument, the “[m]ost basic” way to find defendant was guilty of murder was if he aided and abetted the murder. According to the prosecutor, another person was the shooter, and defendant aided and abetted the shooter by acting as a lookout. As an alternative theory, the prosecutor noted the murder could have been the natural and probable consequence of brandishing a firearm in a rival gang's territory. But the prosecutor emphasized “you don’t have to mess with any of this [regarding the natural and probable consequence theory] if you find there was an intent to kill with malice aforethought . . . .” Here, the jury’s guilty verdict on conspiracy to commit murder indicated the jury found defendant directly aided and abetted the murder. In other words, the jury necessarily found the second degree murder count was based on defendant’s intent to kill and not the natural and probable consequences doctrine as defendant claims.

Finally, defendant’s argument that he only intended to kill rival gang members is unavailing. Firing into the apartment was an act in furtherance of the conspiracy to commit murder. It does not matter that defendant and his coconspirators intended to kill rival gang members rather than the actual victim. Their intent to murder rival gang members transferred to the actual victim. (People v. Bland (2002) 28 Cal.4th 313, 320-321.)[3] For the foregoing reasons, defendant was ineligible for relief under Sen. Bill 1437.

Defendant’s Attempted Murder Convictions

Defendant next argues our prior opinion finding he was ineligible for relief on the two attempted murder counts is no longer valid. Because the trial court never reviewed his attempted murder convictions and only addressed his second degree murder conviction, he requests we remand his case for the trial court to appoint counsel and conduct further proceedings on his petition pursuant to Sen. Bill 775. In response, the People argue defendant is ineligible for relief on the attempted murder conviction in count 2 because he was convicted of conspiracy to commit murder. The People also claim defendant is ineligible for relief on the attempted murder conviction in count 3 because the jury found he committed the crime with premeditation.

In our 2021 opinion, we found defendant was ineligible for relief because Sen. Bill 1437 did not apply to attempted murder at the time. In September 2021, the California Supreme Court granted review and deferred further action pending disposition of related issues in People v. Lopez (S258175) or pending further order of the court. In December 2021, the Supreme Court transferred the case back to this court to vacate our prior decision and reconsider the case in light of Sen. Bill 775.

As discussed ante, effective January 1, 2022, Sen. Bill 775 amended section 1172.6 to expand resentencing eligibility to persons convicted of attempted murder. The matter therefore must be remanded as to defendant’s attempted murder convictions. As an appellate court, our role is to review issues litigated in the trial court. But defendant’s eligibility for resentencing as to his attempted murder convictions has not been litigated on the merits. We accordingly remand to the trial court for further proceedings under section 1172.6, as amended by Sen. Bill 775.

Defendant’s Other Contentions

Defendant raises several other arguments outside the scope of the Supreme Court’s transfer order. He claims he received an unauthorized sentence and notes we affirmed and modified the judgment in 2011 on the 10-year sentence enhancements imposed on counts 1 through 4. (Barnett I, supra, G041416.) He now states the trial court failed to comply with our directions in the remittitur, a jurisdictional error. That issue was not raised in defendant’s postjudgment section 1172.6 petition, which is currently on review before us. But if the court acted outside the scope of the remittitur, defendant’s counsel can file a writ of mandate or habeas corpus petition directly with this court to promptly resolve the issue.

Defendant next contends he is entitled to relief under Senate Bill 620 (2017-2018 Reg. Sess.), which amended section 12022.53 to give trial courts authority to strike or dismiss firearm enhancements. He also claims his conviction for premeditated attempted murder in count 3 “under the natural and probable consequence doctrine . . . is no longer a valid theory of liability and instruction on those theories . . . violated [his] Sixth and Fourteenth Amendment due process rights.” As the People correctly note, the Supreme Court’s transfer order references a single issue – defendant’s entitlement to relief under Sen. Bill 775. We decline to consider issues outside the scope of the transfer order.

DISPOSITION

The postjudgment order denying defendant’s section 1172.6 petition is affirmed as to the second degree murder conviction. As to the attempted murder convictions in counts 2 and 3, the matter is remanded for further proceedings consistent with section 1172.6, as amended by Sen. Bill 775.

MARKS, J.*

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

*Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). All further statutory references are to the Penal Code.

[2] We grant defendant’s request that we take judicial notice of the records in People v. Barnett (Jul. 28, 2011, G041416) [nonpub. opn.] (Barnett I) and the records submitted in connection with our prior 2021 decision.

[3] The trial court also provided the following CALCRIM No. 562 instruction: “If the defendants intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed.”