68 Cal.App.5th 955
Cal. Ct. App.2021Background:
- In 2006 a gang-related confrontation resulted in the fatal shooting of a WDC gang member; defendant Barboza (a Little Minnie Street gang member) was present and admitted he went to “backup” the shooter.
- Defendant was tried and the jury returned verdicts for first degree murder, gang participation, and found a gang special circumstance and a vicarious firearm enhancement true.
- The trial court reduced the first degree murder verdict to second degree murder and struck the gang special circumstance under Penal Code § 1181, subdivision (6); the court then sentenced Barboza on second degree murder plus the firearm enhancement.
- On direct appeal the conviction was affirmed. In June 2019 Barboza filed a petition for resentencing under Penal Code § 1170.95 (Sen. Bill No. 1437 reforms to felony-murder / natural-and-probable-consequences liability).
- The trial court denied the § 1170.95 petition, reasoning the jury’s original finding of intent (via the struck special circumstance) showed Barboza was ineligible; the court therefore did not issue an order to show cause.
- The Court of Appeal reversed, holding that once the court reduced the conviction and struck the special circumstance, the jury’s prior findings were nullified for purposes of the § 1170.95 prima facie inquiry and Barboza made a sufficient prima facie showing to require issuance of an order to show cause and an evidentiary hearing.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could rely on the jury’s original first-degree verdict and special-circumstance finding to deny a §1170.95 petition | The prosecution argued the jury’s findings survive the court’s later reduction and thus establish intent precluding relief | Barboza argued the court’s reduction and striking of the special circumstance rendered the jury findings a legal nullity and they cannot defeat §1170.95 relief | The court held the trial court erred: once the conviction was reduced and the special circumstance struck, the jury findings no longer have legal effect for §1170.95 prima facie review |
| Whether the trial court properly denied relief at the prima facie stage by considering disputed facts | Prosecution relied on the record of the jury’s initial findings to argue no prima facie showing was made | Barboza argued the court improperly engaged in factfinding and relied on findings he never had the opportunity to appeal | The court held factfinding/weighting is improper at the prima facie stage; if the record does not conclusively refute eligibility, an order to show cause must issue |
| Whether the record of conviction conclusively showed Barboza was ineligible under amended §§188/189 | Prosecution: record proves Barboza had the requisite intent/major participation to be ineligible | Barboza: the legally operative conviction is second-degree murder; the record does not conclusively show ineligibility | Held: the record did not conclusively establish ineligibility once the first-degree verdict and special circumstance were stricken; remand for order to show cause |
| Whether denying relief was unfair because Barboza had no appellate opportunity to challenge the jury findings | Prosecution did not contest unfairness argument | Barboza argued he could not challenge the original findings on appeal because they were moot after the reduction | Court agreed it was unfair to treat those unreviewed findings as conclusive and relied on this in reversing |
Key Cases Cited
- People v. Robinson, 63 Cal.4th 200 (discusses limits on trial-court reduction under §1181 and due process context)
- People v. Cowan, 44 Cal.App.2d 155 (explains court may correct a jury's degree determination by applying law to jury’s factual findings)
- People v. Park, 56 Cal.4th 782 (a reduced offense does not later revive for enhancement; reduced conviction has ongoing legal effect)
- People v. Flores, 63 Cal.App.5th 368 (a stricken enhancement is treated as if it never existed for sentencing and record purposes)
- People v. Buycks, 5 Cal.5th 857 (principles on reduced priors and their effect for future enhancements)
- People v. Duchine, 60 Cal.App.5th 798 (where the record does not conclusively refute eligibility, an evidentiary hearing is required)