Opinion
A168099
05-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JOHNNY BARRA, JR., Defendant and Appellant.
NOT TO BE PUBLISHED
(Napa County Super. Ct. No. CR26236)
Fujisaki, J.
Johnny Barra, Jr. (Barra) appeals from the denial of his petition for resentencing pursuant to Penal Code section 1172.6. The Attorney General concedes the trial court erred in denying the petition at the prima facie stage without issuing an order to show cause. We reverse and remand with directions.
All further undesignated statutory references are to the Penal Code. Barra filed this petition pursuant to section 1170.95, but around the time he filed the petition, section 1170.95 was renumbered to section 1172.6. (Stats. 2022, ch. 58, § 10; see People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) As such, we will refer to section 1172.6, but also refer to section 1170.95 as necessary to conform to the record.
Factual and Procedural Background
In 1996, the People charged Barra and co-defendant Josiah Barra by amended information with the attempted willful, deliberate, and premeditated murder of Richard Lafferty Sr. (count one). The People alleged both defendants used a knife during the commission of this offense (§ 12022, subd. (b)) and inflicted great bodily injury (§ 12022.7, subd. (a)). The People charged Josiah alone with the attempted willful, deliberate, and premeditated murder of Darryl Ross (count two), and alleged knife use and great bodily injury enhancements against him. The People charged both defendants with the second degree robbery of Ross (count three), alleging a knife use enhancement against both defendants and a great bodily injury enhancement against Josiah alone. Finally, the People charged Barra alone with assault with a deadly weapon against Richard Lafferty, Jr. (count four), plus a great bodily injury enhancement. The People further alleged that Barra suffered one "strike" prior (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)) and one prior serious felony conviction (§ 667, subd. (a)(1)).
We will refer to co-defendant Josiah Barra by his first name only, to avoid confusion with appellant.
After a joint trial, a jury found Barra guilty of attempted willful, deliberate, and premeditated murder of Lafferty, Sr., and found true the allegations that he personally used a knife and personally inflicted great bodily injury. The jury also found him guilty of the robbery and assault with a deadly weapon charges, and the charged enhancements. A minute order for the sentencing hearing dated November 11, 1996 indicates the strike prior and prior serious felony conviction allegations were found true, and the trial court sentenced Barra to life with the possibility of parole for the attempted murder, plus a determinate term of 22 years for the remaining counts and enhancements.
In January 2022, Barra filed a form petition for resentencing pursuant to former section 1170.95. His petition checked boxes indicating that: (1) a charging document was filed against him allowing the prosecution to proceed under a theory of attempted murder under the natural and probable consequences doctrine; (2) he was convicted of attempted murder following trial; and (3) he could not now be convicted of attempted murder because of changes made to sections 188 and 189 effective January 1, 2019.
The court appointed counsel for Barra and the parties filed briefs addressing whether Barra made a prima facie showing. Barra contended he made the requisite prima facie showing and urged the court to issue an order to show cause. The People argued Barra failed to make a prima facie showing of entitlement to relief because he presented a boilerplate petition that did not show he could not be convicted of attempted murder under the current law and, given the facts of the case, Barra could still be convicted of attempted murder under the current law. In support, the People supplied portions of the trial transcripts and a single instruction purportedly given at trial entitled "Special Instruction No. 19." (Capitalization omitted.)
In June 2023, at a hearing addressing Barra's resentencing petition and another resentencing petition filed by Josiah, the court denied the petitions without issuing an order show cause, finding Barra and Josiah failed to state a prima facie case for relief. The court explained its decision was based on its review of Special Instruction No. 19, which it believed was given during the trial, and which stated: "specific intent to kill unlawfully is a necessary element of attempted murder," "intent to kill unlawfully cannot be inferred solely from the commission of another dangerous crime, such as robbery or assault with a deadly weapon," and "[i]n addition to proving that defendant committed those offenses, the prosecution must present other independent evidence which directly or by solid inference, proves beyond a reasonable doubt that defendant intended to kill." The court also reviewed the verdicts, which showed the jury found true the allegation that the attempted murder was willful, deliberate and premeditated, and that defendants personally used knives and inflicted great bodily injury. This appeal followed.
Discussion
A. General Principles
In 2018, the Legislature passed Senate Bill No. 1437 (Senate Bill 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.'" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
As relevant here, Senate Bill 1437 amended the natural and probable consequences doctrine by adding section 188, subdivision (a)(3):" 'Except [for felony-murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.'" (People v. Gentile (2020) 10 Cal.5th 830, 842- 843.)
Senate Bill 1437 also added section 1170.95 (later renumbered section 1172.6), which provided a petitioning procedure "for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, supra, 11 Cal.5th at p. 959; Stats. 2022, ch. 58, § 10.) Initially, the statute applied only to defendants convicted of murder. (Stats. 2018, ch. 1015, § 4.) Effective January 1, 2022, section 1172.6 was amended "to expand the scope of the petitioning procedure to defendants convicted of attempted murder or manslaughter under a now prohibited theory." (People v. Fouse (2024) 98 Cal.App.5th 1131, 1143; Stats. 2021, ch. 551, § 2.)
The statute presently provides: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of . . . attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of . . . attempted murder . . . following a trial . . . . [¶] (3) The petitioner could not presently be convicted of . . . attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(1)-(3).)
"After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief." (§ 1172.6, subd. (c).) "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) That said, "[w]hile the trial court may look at the record of conviction . . . to determine whether a petitioner has made a prima facie case for section [1172.6] relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Lewis, at p. 971.)
B. Analysis
Barra contends the resentencing court erred in denying his petition at the prima facie stage without issuing an order to show cause. He claims the court erred by reviewing facts gleaned from the transcripts, an instruction it erroneously assumed was given, and the verdicts, without reviewing the instructions as a whole, which included an instruction on the natural and probable consequences doctrine. He claims that, despite the verdicts, the record does not conclusively negate the possibility that he was convicted under a theory of imputed malice. In support, he points to the jury instructions given on aiding and abetting and the natural and probable consequences doctrine.
The People concede the trial court erred in denying the resentencing petition at the prima facie stage without issuing an order to show cause. The People assert: "At the prima facie hearing, the exhibits presented were unclear as to what instructions [Barra's] jury received. However, the record of conviction demonstrates that [Barra's] jury did not receive the special instruction that the superior court relied on to find that [Barra] had not established a prima facie case of his eligibility. Therefore, the court denied [Barra's] petition based on a mistaken understanding of the record. Further, as [Barra] correctly contends, because his jury was instructed on the natural and probable consequences doctrine, it is possible that the jury convicted him of attempted murder under this theory, without finding that he harbored an intent to kill. As such, . . . he established a prima facie case, and the court erred by denying his section 1172.6 petition without issuing an order to show cause." (Fn. omitted.)
We accept the concession. The record before us includes the jury instructions, which does not include Special Jury Instruction No. 19 that the resentencing court relied on in denying the petition. The record also includes another special jury instruction with language identical to Special Jury Instruction No. 19 that the trial court refused to give. Additionally, the record shows the jury was instructed on aiding and abetting as follows: a person aids and abets a crime when they-with knowledge of the unlawful purpose of the perpetrator, and with the intent to commit, encourage or facilitate the commission of the crime-by act or advice do aid, promote, encourage or instigate the crime. The instructions also informed the jury that an aider and abettor is not only guilty of the crime they aided and abetted, but also guilty of "any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted."
As the People observe, the jury could have relied on the natural and probable consequences instruction to find that Barra "aided and abetted [Josiah's] assault with a deadly weapon of Lafferty Sr., a natural and probable consequence of which was the attempted murder of Lafferty Sr."As such, we will reverse with instructions that the superior court issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6, subdivision (d). We express no opinion as to the ultimate outcome of the resentencing proceeding.
The People request judicial notice of the record in Barra's original appeal, case no. A076392. The People explain: "The record in appellant's present appeal is vague as to what instructions appellant's jury received. However, volumes 30 and 31 of the reporter's transcript from [Barra's] original appeal clearly state what instructions the trial court read to [Barra's] jury. The reporter's transcript in case No. A076392 demonstrates that in the present matter, the superior court relied on a special instruction, that was not actually given to appellant's jury, as a basis for denying his Penal Code section 1172.6 petition at the prima facie stage." We deny the request because the augmented record-which contains the jury instructions given at Barra's trial-sufficiently supports the conclusion that Barra stated a prima facie case.
In light of our conclusion, we need not and do not address Barra's remaining contentions that: (1) his attorney was ineffective in failing to ask the resentencing court to review the instructions as a whole, or by failing to provide the instructions and make an argument concerning why the instructions and verdicts did not conclusively establish Barra was ineligible for relief; and (2) his right to conflict-free representation was violated because the same public defender represented him and Josiah during the resentencing proceedings.
Disposition
The order denying Barra's section 1172.6 petition is reversed. The matter is remanded to the superior court with directions to issue an order to show cause and to thereafter proceed as required by section 1172.6, subdivision (d).
WE CONCUR: Tucher, P.J., Petrou, J.