Filed 6/9/21 P. v. Inzunza CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA MICHELLE INZUNZA et al.,

Defendants and Appellants.

 B301380

 (Los Angeles County

 Super. Ct. No. LA084400)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Michael Jesic, Judge. Affirmed in part and 

remanded with directions. 

Edward H. Schulman, under appointment by the Court of 

Appeal, for Defendant and Appellant Maria Michelle Inzunza.

Donna L. Harris, under appointment by the Court of 

Appeal, for Defendant and Appellant Rosa Manuela Barrientos.

Xavier Becerra, Attorney General; Lance E. Winters, Chief 

Assistant Attorney General; Susan Sullivan Pithey, Assistant 
2

Attorney General; William H. Shin, Idan Ivri and Roberta L. 

Davis, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

A jury convicted defendants and appellants Rosa Manuela 

Barrientos and Maria Michelle Inzunza of first degree murder 

(Count 1) and second degree attempted robbery (Count 2). As to 

both Barrientos and Inzunza, the jury found true the special 

circumstance allegation under Penal Code section 190.2, 

subdivision (a)(17).

1 For Barrientos, the jury also found true that 

she personally used a firearm pursuant to section 12022.53, 

subdivision (d) on both counts.

2 

The trial court sentenced Barrientos to life without the 

possibility of parole on the murder count and imposed a 

consecutive term of 34 years to life on the attempted robbery 

charge. Inzunza was sentenced to life without the possibility of 

1 All further undesignated section references are to the Penal 

Code.

2 Barrientos and Inzunza were both charged with identical 

crimes – count 1, first degree murder in violation of section 187, 

subdivision (a), and count 2, attempted second degree robbery in 

violation of sections 211, 213, subdivision (b). The prosecution 

also charged that the murder qualified as a special circumstance 

under section 190.2, subdivision (a)(17). 

Barrientos was additionally charged with personally using 

a firearm under section 12022.53, subdivision (d) on both counts. 

It was also alleged, Barrientos had previously suffered a strike 

prior under the California’s “Three Strikes” law. The same prior 

was alleged as a five-year prior under section 667, subdivision (a). 

Finally, as to both Barrientos and Inzunza, the prosecution 

alleged that a principal was armed with a firearm under section 

12022, subdivision (a)(1) on both counts. 
3

parole for the murder count and a consecutive term of three years 

determinate for the robbery charge. Both filed a timely notice of 

appeal.

On appeal Barrientos contends: (1) trial counsel’s failure to 

defend constitutes abandonment under U.S. v. Cronic (1984) 466 

U.S. 648 (Cronic) and requires reversal of both counts, (2) trial 

court’s sentence on count 2 violated section 654, (3) trial court’s 

second strike sentence must be reversed as unauthorized because 

the prior conviction was never found true, and (4) trial court’s 

imposition of consecutive sentences based on factual findings by 

the trial court violated her Sixth Amendment right to a jury trial

under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi).

3

Inzunza contends the trial court’s imposition of life without the 

possibility of parole on the murder count violated the Eighth 

Amendment because the change in law under Senate Bill No. 

1437 (2017-2018 Reg. Sess.) (SB 1437), as applied, fails to provide 

a meaningful basis for distinguishing between those persons 

deserving of special circumstance from those who are not. She 

additionally raises two other contentions that are identical to 

those made by Barrientos (contentions 2 and 4). As to 

Barrientos’s contentions, the Attorney General concedes the 

second strike prior conviction allegation was never found true.

On this as to Barrientos, we remand for resentencing on count 2. 

As to Inzunza’s contentions, we agree her sentence on count 2 

violated section 654 which, like for Barrientos, requires a remand 

for resentencing. We otherwise affirm the judgment as to both 

Barrientos and Inzunza.

3 The Apprendi contention was raised by Inzunza, joined by 

Barrientos.
4

FACTUAL AND PROCEDURAL BACKGROUND

The Prosecution’s Case

On Saturday, September 24, 2016, Inzunza’s friend, 

Cynthia Aguirre along with her boyfriend, Yanatan Garcia, called 

Inzunza to hang out. Garcia and Aguirre drove to South Central 

Los Angeles to pick her up. Aguirre and Inzunza decided to also 

invite Barrientos to join them. Barrientos and Inzunza were 

involved in a romantic relationship. After Barrientos was picked 

up, the four went to Garcia’s house to drink alcohol.

Prior to reaching Garcia’s home, they went to several liquor 

stores to buy alcohol. Once alcohol was obtained, they headed for 

Garcia’s home to drink and hang out. 

After a few hours of drinking, Aguirre left Garcia’s home 

with Inzunza and Barrientos. The three decided to buy more 

alcohol. They drove to a liquor store on Sherman Way and 

Bellaire Street. Aguirre was told not to park in the liquor store 

parking lot but instead, to park on the street. Aguirre parked on 

Bellaire Street with the emergency lights on. Barrientos and 

Inzunza got out and went into the store. As Aguirre waited, 

Barrientos and Inzunza came running back to the car. Inzunza 

told Aguirre that Barrientos had gotten into a fight with the 

store’s clerk. Aguirre drove away and eventually dropped the two 

off at Barrientos’s home. Almost immediately, Inzunza called 

Aguirre to come back. She then took the two to Inzunza’s 

mother’s home. The next day, Aguirre heard that “something 

terrible” occurred at the liquor store and that the police wanted 

to talk to her. 

On September 24, 2016 around 11:57 p.m., officers from the

Los Angeles Police Department were dispatched to A&D Liquor 

Mart located on Sherman Way and Bellaire in North Hollywood, 
5

California to investigate a possible crime. They located a 

“demand note” on the ground at the entrance of the market which 

said “Real simple. Give us the fucking money from the register or 

we will fucking kill you.” The store clerk, Mohammed Kalam,

was found lying on the ground behind the counter. He was 

deceased with a single gunshot wound to his face.

The surveillance video from A&D Liquor Mart captured the 

incident from various angles. The video shows two women 

approach Kalam who is behind the counter. One of the women 

wore black clothing with a Chicago Bulls baseball cap. The other 

was in a striped hoodie. The one dressed in black handed Kalam 

a note which Kalam tossed back. This repeated several times. 

The one dressed in black then read the note to Kalam. The 

woman in the hoodie pulled out a handgun and pointed it at 

Kalam. As Kalam moved towards a cordless phone, the woman 

in the hoodie tracked him with her gun and pulled the trigger but 

the gun jammed. She tried to unjam the gun and pulled the 

trigger again, but the gun did not fire. After again attempting to

unjam the gun, she raised the gun and pointed at Kalam’s face. 

She pulled the trigger. This time, the gun fired dropping Kalam 

to the ground. The woman in black with the baseball cap reached

over to the register but was unable to open it. Both women are 

captured running out of the store.

Homicide detectives from the Los Angeles Police 

Department obtained still photographs from the surveillance 

video. Barrientos’s sister identified her as the person in the 

hoodie. Barrientos was further identified by Inzunza’s mother, 

by Barrientos’s brother’s girlfriend, as well as by Aguirre.
6

The demand note was dusted for finger prints. Several 

latent prints were lifted. The latent prints were compared to 

prints belonging to both. The latent prints matched. 

On September 24, 2016 around 5:35 p.m., Barrientos and 

Inzunza exchanged text messages about “us[ing] the strap.” A 

“strap” is vernacular for a firearm. 

Defense Evidence

Neither Barrientos nor Inzunza testified or offered any 

witnesses or evidence on their behalf.

DISCUSSION

I. Barrientos’s Claim of Trial Counsel’s Abandonment

Barrientos claims that her “[t]rial counsel’s complete 

failure to subject the prosecution’s case to meaningful adversarial 

testing affected every aspect of trial, resulting in the functional 

equivalent of the complete denial of [her] due process right to a 

fair trial and her Sixth Amendment right to effective assistance 

of counsel.” Citing Cronic, supra, 466 U.S. 648, Barrientos 

contends prejudice is presumed and a reversal required. We 

disagree.

A. Legal Principles

“Under Cronic, if defense counsel ‘entirely fails to subject 

the prosecution’s case to meaningful adversarial testing, then 

there has been a denial of Sixth Amendment rights that makes 

the adversary process itself presumptively unreliable,’ and the 

conviction must be reversed without further prejudice analysis. 

[Citation.] ‘A complete denial of counsel at a critical stage of the 

proceedings’ is sufficient to trigger the Cronic presumption of 

prejudice. [Citation.] ‘But when the defendant is represented by 

counsel, the [Cronic] presumption of prejudice will only stand 

when counsel entirely failed to subject the prosecution’s case to 
7

meaningful adversarial testing. [Citations.]’ [Citation.]

Otherwise, ‘specific errors and omissions’ by trial counsel must 

generally be litigated as ineffective assistance of counsel claims 

under Strickland [v. Washington (1984) 466 U.S. 668 

(Strickland)]. [Citation.]” (People v. Banks (2014) 59 Cal.4th 

1113, 1169-1170, abrogated on other grounds in People v. Scott

(2015) 61 Cal.4th 363, 391 & fn. 3.)

Where the Cronic presumption does not apply, the burden 

falls on the defendant challenging her counsel’s performance to 

establish relief. (Strickland, supra, 466 U.S. at p. 687.) To 

obtain relief based on a claim of ineffective assistance of counsel, 

an appellant must establish (1) that her counsel’s performance 

was so deficient that it amounted to a failure to function as the 

“counsel” guaranteed by the Sixth Amendment, and (2) that the 

deficiency prejudiced the outcome. (See Strickland at p. 687; and 

see, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1252.) An 

attorney’s performance is deficient under Strickland when his 

conduct falls below objective standards of reasonableness under 

prevailing professional norms. (Strickland, at p. 688.) Prejudice 

under Strickland is established where there is a reasonable 

probability that, absent counsel’s alleged errors, the outcome of 

the proceeding would have been different. (Id. at p. 694.) “A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” (Ibid.) 

B. Analysis

Barrientos claims the Cronic presumption applies because 

“[c]ounsel did not file any pretrial motions and did not make any 

oral motions in limine prior to or during the course of the trial. 

Counsel initially reserved opening statement but later did not 

make an opening statement before resting. Counsel made no 
8

effort to cross examine 13 of the 16 prosecution witnesses at 

trial.” Barrientos further argues, “[c]ounsel rested without 

presenting any affirmative witnesses, evidence or defense. 

Counsel did not request any jury instructions beyond those 

proposed by the trial court and did not object to the admission of 

any of the prosecution exhibits. . . . Counsel’s abandonment of 

[Barrientos] became complete once he waived closing argument, a 

critical stage of trial at which assistance of counsel is vital.” 

The Attorney General counters, “[t]his case does not 

present the type of situation addressed by Cronic, where ‘the 

process loses its character as a confrontation between 

adversaries.’ ” (Cronic, supra, 466 U.S. at pp. 656-657.) In 

support of its position, the Attorney General points to counsel’s 

adversarial actions taken during the trial including: (1) having a 

question removed from the juror questionnaire, (2) reading the 

completed questionnaires, thoroughly questioning prospective 

jurors, moving to dismiss two jurors for cause, and exercising 

peremptory challenges, (3) making evidentiary objections at trial,

(4) strategically agreeing to stipulate to the victim’s cause of 

death, (5) joining in a defense motion to deny the prosecution’s 

request to have Aguirre declared as an unavailable witness, (6) 

cross-examining three witnesses, (7) discussing with Barrientos 

her right, and, decision whether to testify, and (8) pointing out 

errors in the verdict forms before they were given to the jury. 

Our review of the record shows Barrientos and Inzunza 

faced what the prosecutor called “a mountain of evidence.” The 

video evidence from A&D Liquor Mart, the demand note, the 

fingerprint match, the testimony of Aguirre placing Barrientos 

and Inzunza at A&D Liquor Mart when the incident occurred, 

and the identification of the still photographs by family members, 
9

left no wiggle room whatsoever. Rather than give up as 

Barrientos claims, counsel for Barrientos fought to defend his 

client when circumstances adverse to his client came up during 

the trial.

For example, during the prosecutor’s examination of 

Barrientos’s mother, Luisa Ilina Camay who was hostile to the 

prosecutor’s questions, the prosecutor attempted to have Camay 

identify Barrientos from a booking photograph. After the 

prosecutor marked the booking photo as an exhibit, counsel for 

Barrientos requested a side bar. 

“[Counsel for Barrientos:] Judge, we need a sidebar.

“The Court: . . . We’re outside the presence of the jury.

“[Counsel for Barrientos:] It’s a booking photo. I don’t think – – I 

think it should be sanitized.

“The Court: Yeah. I’m going to ask that you fold it so it’s just 

showing the picture and for the jury just submit a photo.”

When discussing jury instructions with the trial court, 

counsel for Barrientos sought changes to CALCRIM No. 540A4

from the trial court’s draft: 

4 CALCRIM No. 540A is an instruction on the first degree 

felony-murder rule for the actual killer. The instruction as given 

read as follows:

“The defendants are also charged in Count 1 with murder, 

under a theory of felony murder.

“To prove that the defendant is guilty of first degree 

murder under this theory, the People must prove that:

“1. The defendant committed or attempted to commit 

Robbery;

“2. The defendant intended to commit Robbery;

“AND

“3. While committing or attempting to commit Robbery, 

the defendant caused the death of another person.
10

“The Court: Okay. Now, as to 540A, [counsel for Barrientos], you 

had brought up an issue with the court as we were getting ready 

to go on the record and go over instructions. I know you were 

concerned with the way it’s worded with the defendants’ names 

being in it.

“[Counsel for Barrientos:] That’s correct.

“The Court: Can you explain what you’re – – you’re concerned 

where it says, ‘Defendant Barrientos,’ and – – this is as to 540A. 

That is charges with murder under the felony rule and then 540 

by defendant Maria Inzunza may also be guilty of murder. Your 

issue is with having their names, and the court almost implying 

that they’re the ones who did certain acts?

“[Counsel for Barrientos:] Right. And I expressed that off the 

record.”

The trial court and all counsel continued to discuss whether 

the names were to remain or come out from CALCRIM No. 540A. 

The prosecutor voiced concerns about using the word 

“defendants” in CALCRIM No. 540A as requiring him to prove 

the elements in that instruction as to both Barrientos and 

“A person may be guilty of felony murder even if the killing 

was unintentional, accidental, or negligent.

“To decide whether the defendant committed or attempted 

to commit Robbery, please refer to the separate instructions that 

I have given you on that crime. You must apply those 

instructions when you decide whether the People have proved 

first degree murder under a theory of felony murder.

“The defendant must have intended to commit the felony of 

Robbery before or at the time that she caused the death.

“It is not required that the person die immediately, as long 

as the act causing death occurred while the defendant was 

committing the felony.”
11

Inzunza, even though only one of them committed the fatal act.

The trial court continued: 

“The Court: I’m not really happy about this. Your theory is that 

Rosa Barrientos is the shooter; is that correct?

“[The Prosecutor:] Yes.

“The Court: And that Maria Inzunza was --

“[The Prosecutor:] Did not commit a fatal act.

“The Court: Right.

“[The Prosecutor:] Correct.

“The Court: Over the defense objection I’m going to leave the 

names in. I’m changing too many things.

“[Counsel for Barrientos:] I’m sorry. I strongly object to this 

because what’s going on – – what’s going on is it can only be 

interpreted by this jury that a specific person did in fact 

specifically do X, Y, or Z, whatever it is. And that’s not – – that’s 

a bad thing because it does imply the court’s taking a position. I 

don’t care about [the prosecutor’s] theories. I don’t care about 

any of [it]. It’s for the jury to decide who did what. And the rest 

of it falls in place.

“The Court: No. I understand that. And that’s just – – hold on. 

Let me check the hard copy.

“[Counsel for Barrientos:] His theory is his theory. All I’m 

saying is the purpose of the instructions is to guide this jury, not 

to pick a theory or pick a party. That’s for [the prosecutor] to 

explain.”

The trial court decided to strike Barrientos’s name from 

CALCRIM No. 540A.

“Meaningful advocacy” as discussed in Cronic must not be 

viewed in a vacuum. Appropriate defensive strategies often 

depend on the weakness of the prosecutor’s case. When, as here,
12

the prosecutor’s evidence is strong, defensive strategies narrow 

and become limited. In this difficult case, counsel for 

Barrientos’s forceful advocacy to ensure that the trial court 

remained neutral in its wording on CALCRIM No. 540A shows, 

far from abandoning his client, he was strategically picking his 

battles. As the examples identified by the Attorney General 

show, counsel for Barrientos tactically chose when to fight. The 

totality of the record does not support Barrientos’s position that 

she was abandoned. As such, the presumption of prejudice under 

Cronic does not apply. Instead, Barrientos must overcome 

Strickland’s burden on ineffective assistance of counsel.

Barrientos identifies various alleged failures by her counsel 

as bases of her claim of ineffective assistance of counsel. She 

must show both (1) deficient performance, and (2) prejudice. 

(Strickland, supra, 466 U.S. at p. 687.) 

As noted earlier in this section of the opinion, Barrientos 

faults her counsel on various grounds including: (1) not filing any 

pretrial motions nor making any oral motions in limine prior to 

or during the course of the trial, (2) not making an opening 

statement before resting, (3) not cross-examining 13 of the 16 

prosecution witnesses at trial, (4) resting without presenting any 

affirmative witnesses, evidence or defense, (5) not requesting any 

jury instructions beyond those proposed by the trial court and not 

objecting to the admission of any of the prosecution exhibits, and 

(6) waiving closing argument. 

Other than faulting her counsel for not investigating a 

mental defense, Barrientos does not provide much analysis on 

other alternative actions that counsel should have taken. What

pretrial motion or motion in limine should counsel have made? 

What jury instruction should counsel have requested? What 
13

exhibit by the prosecutor should counsel have objected to?

Barrientos does not answer any of these questions. The 

decisional law is clear that “[c]ounsel is not ineffective for failing 

to make frivolous or futile motions. [Citation.]” (People v. 

Thompson (2010) 49 Cal.4th 79, 122.) Additionally, a failure to 

make a futile objection is not ineffective assistance. (People v. 

Diaz (1992) 3 Cal.4th 495, 562.)

Concerning cross-examination, it is fair to say the most 

damaging pieces of evidence against Barrientos as well as 

Inzunza, were not live witnesses, but rather, physical evidence –

the surveillance video from A&D Liquor Mart and the demand 

note including the lifted latent prints. Our review of the record 

reveals the actual presentation of the evidence took a mere two 

and a half days packed with 16 witnesses. Except for Aguirre 

who was with Barrientos and Inzunza at A&D Liquor Mart when

the incident occurred, and Garcia who testified about Barrientos 

and Inzunza “hanging out” at his home prior to the incident, all of 

the other witnesses’ testimony were very short in duration.

Indeed, counsel for Inzunza also decided not to cross-examine

eight of the 16 witnesses called by the prosecution, and, where he 

decided to cross-examine, it was also very short. “As to whether 

certain witnesses should have been more rigorously 

cross-examined, such matters are normally left to counsel’s 

discretion and rarely implicate inadequacy of representation. 

[Citations.] Defendant identifies no exculpatory or impeachment 

evidence that counsel could have revealed by further questioning 

of prosecution witnesses and that would have produced a more 

favorable result at trial.” (People v. Cox (1991) 53 Cal.3d 618, 

662, fn. omitted, disapproved on other grounds in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22, and superseded by statute on 
14

other grounds as stated in Jones v. Superior Court (1994) 

26 Cal.App.4th 1202, 1210.)

People v. Carter (2005) 36 Cal.4th 1114 (Carter) is 

instructive. Carter was a capital homicide prosecution where the 

appellant claimed his trial counsel was ineffective by failing to 

make an opening statement, present any evidence on defendant’s 

behalf, and make any substantive closing argument. (Id. at 

p. 1188.) The appellant in Carter had been accused of five total 

murders of which he faced trial on three committed in 

Los Angeles. The other two were from Alameda and San Diego 

counties and introduced as other crimes evidence under Evidence 

Code section 1101, subdivision (b) in the trial conducted in 

Los Angeles County. (Carter, at p. 1146.) 

In finding no ineffective assistance, the Carter court noted, 

“[e]ach one of counsel’s decisions—to forgo making an opening 

statement, present a defense, or offer more than a brief 

summation—was tactical. In view of the strong evidence directly 

linking defendant to the charged murders, as well as the looming 

prospect of other capital trials in Alameda and San Diego 

Counties arising out of the deaths of Tok Kim and Janette 

Cullins, reasonably competent counsel could have determined to 

hear the prosecution’s case prior to deciding whether to present a 

defense, and further could have determined that counsel’s 

summation ought to be limited to inviting the jury to consider 

whether the prosecution actually had met its burden of 

establishing guilt beyond a reasonable doubt. [Citation.]” 

(Carter, supra, 36 Cal.4th at p. 1189.) 

While Barrientos did not face additional charges in other 

counties as in Carter, the prosecution’s case against her was 

equally overwhelming. Counsel for Barrientos knew he had to 
15

walk a fine line. If he pushed too hard, he could potentially turn 

the jurors against his client even more. What occurred during 

closing argument is illuminating. The prosecution relied on 

alternate theories of first-degree murder liability under willful, 

deliberate premeditation, and, the felony-murder rule. Added to 

this were instructions on principals, aiders and abettors, 

attempted robbery and the instructions on special circumstance.5

Recognizing the layers of complexities involved in the jury 

instructions, the prosecutor in his closing argument noted, “And 

there are a lot of jury instructions. And the jury instructions, 

they have parts and subparts and then sub-subparts. And just 

when you think you’re at the end of [one] there’s yet another 

section. And it’s a forest of different bullet points and numbers.

And I know it’s complicated.” Added to this, the prosecutor 

argued that Barrientos and Inzunza were both principals and 

5 The trial court instructed the jury using CALCRIM.

Among other instructions, the trial court gave Nos. 400 (Aiding 

and Abetting: General Principles), 401 (Aiding and Abetting: 

Intended Crimes), 500 (Homicide: General Principles), 520 (First 

or Second Degree Murder With Malice Aforethought), 521 (First 

Degree Murder), 540A (Felony Murder: First Degree – Defendant 

Allegedly Committed Fatal Act), 540B (Felony Murder: First 

Degree – Coparticipant Allegedly Committed Fatal Act), 548 

(Murder: Alternative Theories), 640 (Deliberations and 

Completion of Verdict Forms: For Use When Defendant Is 

Charged With First Degree Murder and Jury is Given Not Guilty 

Forms for Each Level of Homicide), 700 (Special Circumstances: 

Introduction), 703 (Special Circumstances: Intent Requirement 

for Accomplice After June 5, 1990 – Felony Murder), 730 (Special 

Circumstances: Murder in Commission of Felony), and 1600 

(Robbery).
16

aiders/abettors to each other in committing the attempted 

robbery. There existed a possibility for jury confusion.

At the end of the prosecutor’s initial closing argument, the 

trial court asked:

“The Court: . . . The People have now finished their closing 

argument. I know that the [two] of you had been deciding 

whether or not you wanted to give a closing argument in this 

case. Have you decided that yet?

“[Counsel for Inzunza:] Yes.

“The Court: And what is that decision?

“[Counsel for Inzunza:] We’re going to waive.

“The Court: Okay. And I just want to be clear. This is for 

strategic purposes as to both of you; is that correct?

“[Counsel for Barrientos:] That is correct.

“[Counsel for Inzunza:] Yes.”

Given the multiplicity of instructions combined with the 

strength of the prosecution’s evidence against Barrientos, a 

reasonably competent attorney could have determined a 

probability existed for jury confusion and that making a closing 

argument would only provide the prosecutor with an additional 

opportunity to clarify them. Not making a closing argument was 

tactical.

For the above reasons, Barrientos has failed to establish 

that her counsel’s alleged failures were deficient under prevailing 

professional norms and that they resulted in prejudice to her 

case. 

II. Inzunza’s Eighth Amendment Claim

Inzunza contends her sentence to life without the 

possibility of parole violates the Eighth Amendment’s 

proscription against cruel and unusual punishment because post-
17

SB 1437, proof of culpability as a non-killer aider and abettor for 

a felony murder based special circumstance under section 190.2, 

subdivision (a)(17) requires nothing more than proving first 

degree felony murder under section 189, subdivision (e)(3).

Therefore, as applied, California’s statutory scheme fails to 

provide a meaningful basis for distinguishing between those 

persons deserving special circumstance punishment from those 

who do not. As such, Inzunza asserts, she is entitled to have her 

sentence modified from life without the possibility of parole down 

to a term of 25 years to life. We disagree.

Analysis

Inzunza’s contention centers on the passage of SB 1437

which amended section 189.

6 Under section 189, subdivision (e), 

SB 1437 narrowed the liability for first degree felony murder to: 

1) the actual killer, 2) the aider and abettor who intended to kill, 

and 3) the aider and abettor who was a major participant and 

acted with reckless indifference to human life. (§ 189, subd. 

(e)(1)–(3).) 

Inzunza contends, “California’s felony-murder based special 

circumstance of attempted robbery is unconstitutionally applied 

when, as here, the state’s theory for the predicate offense – first 

degree felony murder based on aiding and abetting principles –

requires proof of elements identical to those necessary to 

establish that special circumstance pursuant to . . . section 190.2, 

6 SB 1437 also amended section 188, eliminating murder 

liability under the natural and probable consequences doctrine 

and added section 1170.95 creating a retroactive petition 

procedure. On the elimination of the natural and probable 

consequences doctrine, see People v. Gentile (2020) 10 Cal.5th 

830, 839 (Gentile).
18

subdivisions (a)(17) and (d). This statutory scheme provides no 

meaningful basis for distinguishing between first degree felonymurderers punishable by 25 years-to-life in prison from those 

who commit this special circumstance but who are punishable by 

either or [sic] life imprisonment without possibility of parole or 

death.”7 Inzunza relies on Lowenfield v. Phelps (1988) 484 U.S. 

231 and claims California’s statutory scheme is distinguishable 

from those where the high court has permitted the use of the 

same facts to determine death eligibility and as a penalty factor 

for consideration in capital cases.

The Attorney General counters that Inzunza lacks standing 

to challenge the statutory scheme because she was not sentenced 

to death. Additionally, the Attorney General argues that section 

1170.95 is the exclusive remedy to seek relief based on the 

changes that SB 1437 made to the law of murder. 

“[S]tanding in federal courts is limited by article III of the 

United States Constitution.” (Reycraft v. Lee (2009) 177 

Cal.App.4th 1211, 1217.) “In assessing standing, California 

courts are not bound by the ‘case or controversy’ requirement of 

article III of the United States Constitution . . . . ‘California 

decisions . . . generally require a plaintiff to have a personal 

7 Punishment for first degree murder is prescribed under 

section 190, subdivision (a) which states, “Every person guilty of 

murder in the first degree shall be punished by death, 

imprisonment in the state prison for life without the possibility of 

parole, or imprisonment in the state prison for a term of 25 years 

to life. The penalty to be applied shall be determined as provided 

in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.” (§ 190, subd. 

(a).)
19

interest in the litigation’s outcome.’ [Citation.]” (Bilafer v. 

Bilafer (2008) 161 Cal.App.4th 363, 370.) 

The federal cases cited by the Attorney General do not 

control the pathway to California’s appellate courts.8 In any 

event, we do not read Inzunza’s contention as challenging 

California’s capital punishment scheme generally. Instead, she 

uses the rubric of the capital punishment jurisprudence to argue 

under the current/relevant statutory laws on murder and special 

circumstances, as applied, the imposition of life without the 

possibility of parole is not properly narrowed from the category of 

individuals convicted of first degree felony murder as non-killer 

aiders and abettors. Standing does not preclude her from making 

this challenge.

In Gentile, supra, 10 Cal.5th 830, the California Supreme 

Court held that section 1170.95 is the exclusive remedy for 

retroactive relief on non-final convictions obtained before the 

law’s effective date. (Gentile, at pp. 851-852.) 

SB 1437 took effect on January 1, 2019.9 Section 1170.95 

established a retroactive procedure 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 

8 The Attorney General cites Allen v. Wright (1984) 468 U.S. 

737 and Houston v. Roe (9th Cir. 1999) 177 F.3d 901.

9 The California Legislature passed SB 1437 in 2018, and the 

bill was signed by the Governor on September 30, 2018. As a bill 

enacted at a regular session, the bill became effective on 

January 1, 2019. (See Cal. Const., art. IV, § 8, subd. (c)(1).)
20

counts . . . .” (§ 1170.95, subd. (a).) Individuals seeking relief 

must meet three conditions: “(1) A complaint, information, or 

indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder or murder

under the natural and probable consequences doctrine[,] [¶] (2) 

The petitioner was convicted of first degree or second degree 

murder following a trial or accepted a plea offer in lieu of a trial 

at which the petitioner could be convicted for first degree or 

second degree murder[, and] [¶] (3) The petitioner could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.” (Id., subd.

(a)(1)-(3).)

Inzunza is not seeking relief provided under section 

1170.95: she is not asking to have her murder conviction vacated 

and to be sentenced on the remaining count. She is not claiming 

that her murder conviction is invalid based on the change to 

section 189 amended by SB 1437. Section 1170.95 is not a bar to 

raising this contention.

A. The “Narrowing” Process in Capital Punishment 

Jurisprudence

The United States Supreme Court explained that, “[t]o 

avoid . . . constitutional flaw, [a state’s law] must genuinely 

narrow the class of persons eligible for the death penalty and 

must reasonably justify the imposition of a more severe sentence 

on the defendant compared to others found guilty of murder.” 

(Zant v. Stephens (1983) 462 U.S. 862, 877.) 

“The United States Supreme Court’s capital punishment 

jurisprudence rests on the principle that ‘ “ ‘the infliction of a 

sentence of death under legal systems that permit this unique 

penalty to be . . . wantonly and . . . freakishly imposed’ ” ’ violates 
21

the Eighth and Fourteenth Amendments to the federal 

Constitution. [Citations.] [¶] The high court has drawn a 

distinction between two aspects of capital sentencing: ‘narrowing’

and ‘selection.’ ‘Narrowing’ pertains to a state's ‘legislative 

definition’ of the circumstances that place a defendant within the 

class of persons eligible for the death penalty. [Citations.] To 

comport with the requirements of the Eighth Amendment, the 

legislative definition of a state’s capital punishment scheme that 

serves the requisite ‘narrowing’ function must ‘circumscribe the 

class of persons eligible for the death penalty.’ [Citation.]” 

(People v. Bacigalupo (1993) 6 Cal.4th 457, 465.)

Our research has not turned up any non-capital 

punishment cases – specifically, those involving life without the 

possibility of parole sentences – utilizing the rubric of the capital 

punishment jurisprudence to assess whether a sentence violates 

the Eighth Amendment’s proscription against a cruel and 

unusual punishment. For non-capital cases, the United States 

Supreme Court has set out a three-part test to determine 

“whether a sentence is so disproportionate that it violates the 

Eighth Amendment: ‘(i) the gravity of the offense and the 

harshness of the penalty; (ii) the sentences imposed on other 

criminals in the same jurisdiction; and (iii) the sentences imposed 

for commission of the same crime in other jurisdictions.’ 

[Citation.]” (Ewing v. California (2003) 538 U.S. 11, 22 (Ewing).) 

In California, when defendants challenge their non-capital 

sentence on the ground it violates the Eight Amendment, the 

three-part test described in Ewing is routinely used. People v. 

Johnson (2010) 183 Cal.App.4th 253, is a fair example. In 

Johnson, the non-killer aider and abettor was charged with 

attempted robbery, murder under a theory of felony murder, and 
22

a section 190.2, subdivision (a)(17) special circumstance. The 

appellant claimed her life without the possibility of parole 

sentence was cruel and unusual under the Eighth Amendment

based on her non-lethal conduct in the underlying felony. In 

analyzing the Eighth Amendment claim, the Johnson court 

noted, “[w]e, like the trial court when it determined the sentence 

and when it later refused to modify the sentence, use a threepronged approach to determine whether a particular sentence is 

grossly disproportionate. First, we review ‘the nature of the 

offense and/or the offender, with particular regard to the degree 

of danger both present to society.’ [Citation.] Second, we 

compare the challenged punishment with punishments 

prescribed for more serious crimes in our jurisdiction. [Citation.] 

Third, and finally, we compare the challenged punishment to 

punishments for the same offense in other jurisdictions.

[Citation.] The importance of each of these prongs depends upon 

the facts of each specific case. [Citation.] Indeed, we may base 

our decision on the first prong alone. [Citation.]” (Johnson, at 

pp. 296-297.) The method of analysis Inzunza asks us to conduct 

is not how appellate courts analyze an Eighth Amendment claim 

of cruel and unusual punishment for non-capital judgments. 

B. Capital Punishment Jurisprudence Does Not Apply 

to Inzunza’s Claim

Inzunza was sentenced to life without the possibility of 

parole.10 Inzunza, however, asks us to conduct the high court’s 

10 On August 22, 2019, the trial court sentenced Inzunza to a 

term of life without the possibility of parole on count 1 for the 

murder, and a consecutive determinate term of three years on 

count 2 for the attempted robbery, to run consecutive pursuant to 

section 669.
23

“narrowing” analysis applicable in capital punishment appeals 

despite her non-capital judgment. She cites People v. Banks

(2015) 61 Cal.4th 788 (Banks), People v. Estrada (1995) 11 

Cal.4th 568 (Estrada), and People v. Garcia (1984) 36 Cal.3d 539 

(Garcia), and argues even though she was not sentenced to death, 

“[t]he proper construction of these statutes in this non-capital 

case must be consistent with its construction in a capital case.”

As will be explained below, these cases do not support her 

position. 

In Tison v. Arizona (1987) 481 U.S. 137 (Tison), the high 

court held that “major participation in the felony committed, 

combined with reckless indifference to human life, is sufficient to 

satisfy the Enmund culpability requirement.”11 (Id. at p. 158.)

In response to Tison, when Proposition 115, called the “Crime 

Victims Justice Reform Act,” was passed by the electorate in 

1990, it added section 190.2, subdivision (d).12 When the 

11 In Enmund v. Florida (1982) 458 U.S. 782, the high court 

held, “Enmund did not kill or intend to kill and thus his 

culpability is plainly different from that of the robbers who killed; 

yet the State treated them alike and attributed to Enmund the 

culpability of those who killed the [victims]. This was 

impermissible under the Eighth Amendment.” (Id. at p. 798.)

12 Section 190.2, subdivision (d) states, “Notwithstanding 

subdivision (c), every person, not the actual killer, who, with 

reckless indifference to human life and as a major participant, 

aids, abets, counsels, commands, induces, solicits, requests, or 

assists in the commission of a felony enumerated in paragraph 

(17) of subdivision (a) which results in the death of some person 

or persons, and who is found guilty of murder in the first degree 

therefor, shall be punished by death or imprisonment in the state 

prison for life without the possibility of parole if a special 
24

prosecution files a section 190.2, subdivision (a)(17) special 

circumstance allegation against a non-killer aider and abettor 

under the felony-murder rule, they must prove that the 

accomplice was a major participant who acted with reckless 

indifference to human life beyond a reasonable doubt before 

capital punishment, or, life without the possibility of parole may 

be imposed. (§ 190.2, subd. (d).) 

In Banks, supra, 61 Cal.4th 788, our Supreme Court 

provided criminal law practitioners and lower courts with specific 

guidance on the requirements of “major participation” and 

“reckless indifference to human life” for a non-killer aider and 

abettor when a felony murder special circumstance is alleged 

pursuant to section 190.2, subdivision (a)(17). The Banks court 

explained, “the standards we articulate, although developed in 

death penalty cases, apply equally to cases like this one involving 

statutory eligibility under section 190.2(d) for life imprisonment 

without parole.” (Banks, at p. 804.) Banks, however, was not 

concerned with the “narrowing” process in capital punishment 

jurisprudence as in a death penalty appeal, but instead, on the 

constitutional requirements discussed in Tison – facts that 

support “major participation” and “reckless indifference to human 

life.” (Id. at pp. 804-811.) The Banks court’s reference to meeting 

constitutional standards relates to Tison’s analysis on these legal 

requirements for non-killer aiders and abettors when a felony 

murder special circumstance is alleged under section 190.2, 

subdivision (a)(17) applied under section 190.2, subdivision (d). 

circumstance enumerated in paragraph (17) of subdivision (a) has 

been found to be true under Section 190.4.”
25

Estrada and Garcia are also equally unavailing. The main 

contention in Estrada centered on whether the trial court had a 

sua sponte duty to define “reckless indifference to human life.” 

(Estrada, supra, 11 Cal.4th at pp. 574-575.) Discussing Tison as 

the source for the language used in section 190.2, subdivision (d), 

Estrada explained, “Tison was concerned with whether 

imposition of the death penalty on an accomplice to a felony 

murder who neither killed nor intended to kill the victim would 

violate the Eighth or Fourteenth Amendments. . . . Tison is the 

source of the language of section 190.2(d), and the constitutional 

standards set forth in that opinion are therefore applicable to all

allegations of a felony-murder special circumstance, regardless of 

whether the People seek and exact the death penalty or a 

sentence of life without parole.” (Estrada, at pp. 575-576.)13 As 

in Banks, Estrada did not analyze the “narrowing” process within 

the high court’s capital punishment jurisprudence.

Garcia is a 1984 case that predates our current law as well 

as Tison (published in 1987) on the requirements for non-killer 

aiders and abettors charged with a felony murder special 

circumstance under section 190.2, subdivision (a)(17). Until 

Proposition 115 changed the requirements to the Tison standard, 

prosecutors were required to prove that the non-killer aiders and 

abettors for felony murder special circumstance possessed the 

intent to kill. (See Carlos v. Superior Court (1983) 35 Cal.3d 131, 

145 [“We conclude that the history of the initiative, as well as its 

wording, supports a construction limiting the felony murder 

13 Estrada ultimately held, trial courts did not have a sua 

sponte duty to define “reckless indifference to human life,” 

because “[t]he phrase . . . does not have a technical meaning 

peculiar to the law . . . .” (Estrada, supra, 11 Cal.4th at p. 578.) 
26

special circumstances to persons who intend to kill or aid in a 

killing.”], superseded by statute recognized in Banks, supra,

61 Cal.4th at p. 798.) In Garcia, the trial court had omitted to 

instruct the jury on intent to kill for the special circumstance 

allegation. Garcia noted, “[t]he United States Supreme Court 

decisions make it clear that when intent is an element of a crime, 

an instruction directing the jury to find or conclusively presume 

intent denies due process, regardless of the weight of the 

evidence.” (Garcia, supra, 36 Cal.3d at p. 551.) Again, as in 

Banks and Estrada, Garcia was not concerned with the 

“narrowing” process within the high court’s capital punishment 

jurisprudence.

Inzunza is mistaken about the constitutional consistency 

discussed in Banks and Estrada. The consistency discussed is 

not with the “narrowing” process within the high court’s capital 

punishment jurisprudence. Rather, the required consistency is 

on the Tison standards of “major participation” and “reckless 

indifference to human life.” This is so because section 190.2, 

subdivision (d) requires proof of “major participation” and 

“reckless indifference to human life” when a special circumstance 

is alleged pursuant to section 190.2, subdivision (a)(17) against a 

non-killer aider and abettor whether the prosecution seeks the 

punishment of death or life without the possibility of parole. The 

same constitutional standards under Tison applies. As such, we 

decline Inzunza’s invitation to conduct the “narrowing” analysis 

under the capital punishment jurisprudence to resolve her 

contention.

Instead, we again look to Banks and Estrada for answers. 

Estrada explained that “Tison was concerned with whether 

imposition of the death penalty on an accomplice to a felony 
27

murder who neither killed nor intended to kill the victim would 

violate the Eighth or Fourteenth Amendments. The decision 

itself does not stand for the proposition that imposition of a 

penalty less severe than death, such as life imprisonment without 

parole, would offend constitutional principles in the absence of 

proof of ‘reckless indifference to human life.’ [Citation.]”

(Estrada, supra, 11 Cal.4th at p. 575, italics added.) In Banks, 

the California Supreme Court noted, “[a]s a purely constitutional 

matter, nothing would foreclose California from imposing life 

imprisonment without parole sentences on felony murderers with 

[Appellant’s] degree of culpability. [Citations.]” (Banks, supra, 

61 Cal.4th at p. 804.) 

Stated differently, for non-killer aiders and abettors under 

the felony-murder rule, California’s statutory requirement under 

section 190.2, subdivision (d) to prove “major participant” and 

“reckless indifference to human life” when imposing the 

punishment of life without the possibility of parole is not 

constitutionally compelled under Tison. Undoubtedly, SB 1437, 

by amending section 189, has raised the requirement for first 

degree felony murder on non-killer aiders and abettors to the 

Tison standard – a standard under which a state could 

potentially exact the punishment of death. (See § 189, subd. 

(e)(3).) Currently under California law, the standard of murder 

liability for non-killer aiders and abettors under the change made 

by SB 1437 to section 189, and, the special circumstance 

requirements of section 190.2, subdivision (d), both meet the 

Tison standard for imposing capital punishment. While we 

express no views as to whether SB 1437 impacts the “narrowing” 

analysis under capital punishment jurisprudence if a defendant 

is sentenced to death, here, no such judgment applies. Instead, 
28

Inzunza was sentenced to life without the possibility of parole. If 

capital punishment could be exacted without offending the 

Eighth Amendment, a lesser sentence is certainly constitutional. 

Inzunza’s sentence of life without the possibility of parole does 

not offend the Eighth Amendment.

III. Section 654 Claim by Barrientos and Inzunza on 

Count 2

Barrientos and Inzunza contend the trial court’s imposition 

of a consecutive term on the attempted robbery count (Count 2) in 

addition to the sentence imposed on the murder count (Count 1) 

violated section 654’s proscription against multiple punishments.

Barrientos further claims the sentence imposed on count 2 

violated the Double Jeopardy Clause of the Fifth Amendment. 

A. Legal Principles

Section 654, subdivision (a) states, “An act or omission that 

is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision. An 

acquittal or conviction and sentence under any one bars a 

prosecution for the same act or omission under any other.”

Whether a course of criminal conduct is a divisible 

transaction which could be punished under more than one statute 

within the meaning of section 654 depends on the intent and 

objective of the actor. (People v. Beamon (1973) 8 Cal.3d 625, 

637.) “It is defendant’s intent and objective, not the temporal 

proximity of his offenses, which determine whether the 

transaction is indivisible. [Citations.] We have traditionally 

observed that if all of the offenses were merely incidental to, or 

were the means of accomplishing or facilitating one objective, 
29

defendant may be found to have harbored a single intent and 

therefore may be punished only once. [Citation.] [¶] If, on the 

other hand, defendant harbored ‘multiple criminal objectives,’

which were independent of and not merely incidental to each 

other, he may be punished for each statutory violation committed 

in pursuit of each objective, ‘even though the violations shared 

common acts or were parts of an otherwise indivisible course of 

conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 

335.)

“The defendant’s intent and objective are factual questions 

for the trial court, and we will uphold its ruling on these matters 

if it is supported by substantial evidence. [Citation.]” (People v. 

Perry (2007) 154 Cal.App.4th 1521, 1525.) 

“Where a defendant is prosecuted solely on a theory of first 

degree felony murder, section 654 precludes punishment for both 

murder and the underlying felony. [Citation.] However, if the 

prosecution presents alternative theories—such as premeditation 

and felony murder—and there is evidence supporting a finding 

that the murder was premeditated, then the trial court may 

properly impose a sentence for both the murder and the felony. 

[Citation.]” (People v. Carter (2019) 34 Cal.App.5th 831, 841.)

B. Analysis

We start by analyzing the prosecutor’s theory of liability for 

the murder charge. In closing argument, the prosecutor 

expressly relied on both the theory of premeditation and the 

felony-murder rule in asking the jury to convict both Barrientos 

and Inzunza. The prosecutor specifically argued the existence of 

express malice and premeditation each time Barrientos pulled 

the trigger but the gun jammed until finally, she shot the victim 

in the face killing him. The prosecutor also argued for express 
30

malice and premeditation against Inzunza based on the demand 

note which stated, “Real simple. Give us the fucking money from 

the register or we will fucking kill you.” This is a case where the 

felony-murder rule was not the prosecution’s sole theory of 

liability. On the contrary, based on whether substantial evidence 

supports the trial court’s decision, this is a case noted in People v. 

Carter, supra, 34 Cal.App.5th 831, where imposition of sentence 

without staying it, may be appropriate. 

We next assess whether the trial court’s findings are 

supported by substantial evidence. Both counsel for Barrientos 

and Inzunza asked the trial court to run the sentence on Count 2 

(attempted robbery) concurrent with Count 1 (first degree murder 

with a special circumstance). The trial court stated:

“Okay. Okay. As to – – I have given a lot of thought as to 

the sentence and running Count 2 concurrent to Count 1. I’m not 

sure if I even can, but if I could I’m going to choose not to run it 

concurrent. And I am going to run it consecutive, especially as to 

Ms. Barrientos. What really struck me in this case was watching 

the video and the fact that that gun didn’t fire multiple times. 

There were so many opportunities for either [one] of them at that 

point to stop and to deflect and to say, no. We need to just leave.

And Ms. Barrientos kept trying. Nothing was going to stop her 

from shooting that gun. [¶] To me it almost seemed like it was 

separate from the even act of the robbery. I’ve never seen a gun –

– I don’t think it jammed as much as she just couldn’t get it to 

fire and to keep going on and on. It just surprised me how easily 

this could have stopped at that moment. [¶] I know rash

decisions happen and people make decisions that they regret for 

the rest of their lives. And sometimes they get a chance to say, if 

I could have done it differently. And she had that chance. For 
31

whatever reason she had that chance to stop at that moment, and 

she chose to go on. [¶] And Ms. Inzunza was right there and 

could have at any moment stopped her when she saw what was 

going on, when that gun wouldn’t fire.”

In exercising its discretion to impose a consecutive sentence 

for the attempted robbery charge, the trial court’s primary 

attention was on Barrientos. While Barrientos contends the 

incident was an indivisible course of conduct that took a mere 30 

seconds from start to finish and that the only apparent objective 

was to take money from the victim, the trial court’s comments 

belie her position. By her actions depicted in the video, the trial 

court implicitly found that Barrientos exhibited a pre-determined 

intent to kill Kalam which was separate from the robbery. In 

support of its view, the trial court explained that each time the 

gun jammed, Barrientos had an opportunity to reflect and stop 

from further violence but instead chose to continue and 

ultimately shot Kalam to death. The record shows Barrientos 

shot Kalam in the face. The trial court’s implicit finding that 

Barrientos entertained a separate objective and intent – to kill 

Kalam – is supported by substantial evidence. 

Citing People v. Wader (1993) 5 Cal.4th 610 (Wader), 

Barrientos also contends the sentence on count 2 violates the 

Double Jeopardy Clause of the Fifth Amendment of the federal 

Constitution. The United States Supreme Court explained that 

the Double Jeopardy Clause of the Fifth Amendment “protects 

against a second prosecution for the same offense after acquittal.

It protects against a second prosecution for the same offense after 

conviction. And it protects against multiple punishments for the 

same offense.” (North Carolina v. Pearce (1969) 395 U.S. 711, 

717, fns. omitted.) 
32

Sentencing on count 2 for the attempted robbery falls under 

the category of protection against multiple punishments for the 

same offense. Wader cited Jones v. Thomas (1989) 491 U.S. 376 

(Jones), which dealt with a felony murder conviction where the 

trial court also imposed a consecutive term for the underlying 

felony. (Id. at p. 381.) On this, the high court explained, “[t]he 

answer turns on the interest that the Double Jeopardy Clause 

seeks to protect. Our cases establish that in the multiple 

punishments context, that interest is ‘limited to ensuring that the 

total punishment did not exceed that authorized by the 

legislature.’ [Citations.] The purpose is to ensure that 

sentencing courts do not exceed, by the device of multiple 

punishments, the limits prescribed by the legislative branch of 

government, in which lies the substantive power to define crimes 

and prescribe punishments. [Citation.]” (Ibid.) 

Our Supreme Court resolved this question in People v. Holt

(1997) 15 Cal.4th 619 (Holt). Holt first noted that the double 

jeopardy issue came up in Jones because the “Missouri 

Legislature did not intend to allow conviction and punishment for 

both felony murder and the underlying felony. [Citations.]”

(Jones, supra, 491 U.S. at p. 381.) In contrast, California’s “1978 

death penalty law expressly provides that a felony underlying a 

felony-murder special circumstance ‘be charged and proved 

pursuant to the general law applying to the trial and conviction

of the crime.’ [Citation.] Since section 190.3 expressly permits 

the sentencer to consider both the circumstances of the crime and 

a special circumstance based on conviction of a felony which 

underlies the first degree felony-murder conviction, there is no 

federal double jeopardy violation. [Citations.]” (Holt, supra, at 
33

pp. 692-693.)14 Since California’s Legislature does not forbid 

sentencing in this context, the Double Jeopardy Clause of the 

Fifth Amendment is not a bar to sentencing on the attempted 

robbery conviction.

For Inzunza, the trial court’s decision to impose a 

consecutive sentence rested on its view that she could have 

stopped Barrientos from shooting Kalam but did not do so. This 

finding by the trial court does not resonate with clarity. Failure 

to act is susceptible to various reasons such as fear, lack of care, 

inattention, as well as, perhaps, a desire to see the thing done by 

the other actor, here Barrientos.

“ ‘Substantial evidence’ means that evidence which, when 

viewed in light of the entire record, is of solid probative value, 

maintains its credibility and inspires confidence that the 

ultimate fact it addresses has been justly determined.” (People v. 

Conner (1983) 34 Cal.3d 141, 149.) Inzunza’s failure to stop 

Barrientos from shooting Kalam does not meet this definition. 

Her inaction is not substantial evidence that she entertained a 

separate objective from the robbery – an intent to kill.

IV. Apprendi Challenge to the Consecutive Term on 

Count 2

Barrientos and Inzunza contend that the factual findings 

made by the trial court to impose consecutive terms violated their 

Sixth Amendment right to a jury trial as well as their Fourteenth 

Amendment right to due process. We disagree.

14 Holt cited section 190.4, subdivision (a) which states in 

relevant part, “Whenever a special circumstance requires proof of 

the commission or attempted commission of a crime, such crime 

shall be charged and proved pursuant to the general law applying 

to the trial and conviction of the crime.” (§ 190.4, subd. (a).)
34

Analysis

In Apprendi, the United State Supreme Court held that 

“[o]ther than the fact of a prior conviction, any fact that increases 

the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a 

reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) Four 

years later, in Blakely v. Washington (2004) 542 U.S. 296, the 

high court explained that “the relevant ‘statutory maximum’ is 

not the maximum sentence a judge may impose after finding 

additional facts, but the maximum he may impose without any 

additional findings.” (Id. at pp. 303-304.) Under Cunningham v. 

California (2007) 549 U.S. 270, the high court held California’s 

determinate sentencing scheme (section 1170 et seq.) which at 

the time utilized a “presumptive” middle term, violated Apprendi

and its progeny when a trial court made factual findings of 

aggravating circumstances – other than a fact of a prior 

conviction – to impose the upper term. (Cunningham, at p. 293.) 

These cases, however, did not address whether the 

imposition of consecutive sentences on counts found by the jury or 

admitted by the defendant violated the Sixth Amendment right 

to a jury trial. This question was answered in Oregon v. Ice 

(2009) 555 U.S. 160 which explained, “[t]he historical record 

demonstrates that the jury played no role in the decision to 

impose sentences consecutively or concurrently. Rather, the 

choice rested exclusively with the judge.” (Id. at p. 168.) The 

high court further explained that “[i]n light of this history, 

legislative reforms regarding the imposition of multiple sentences 

do not implicate the core concerns that prompted our decision in 

Apprendi. There is no encroachment here by the judge upon facts 

historically found by the jury, nor any threat to the jury’s domain 
35

as a bulwark at trial between the State and the accused. Instead, 

the defendant—who historically may have faced consecutive 

sentences by default—has been granted by some modern 

legislatures statutory protections meant to temper the harshness 

of the historical practice.” (Id. at p. 169.) Additionally, the 

“[s]tates’ interest in the development of their penal systems, and 

their historic dominion in this area, also counsel against the 

extension of Apprendi that Ice requests. Beyond question, the 

authority of States over the administration of their criminal 

justice systems lies at the core of their sovereign status.” (Id. at 

p. 170.) As such, the high court held that judicial fact finding to 

impose consecutive sentences, as under the Oregon statute, does 

not violate Apprendi. (Id. at p. 172.) In California, the rule 

under Oregon v. Ice was recognized in People v. Scott, supra,

61 Cal.4th at p. 405 ([“the high court has held that ‘the Sixth 

Amendment’s restriction on judge-found facts’ is ‘inapplicable’ 

when a trial judge makes factual findings necessary to the 

imposition of consecutive terms.”].)

On this issue, Inzunza’s claim has been rendered moot

since we found merit in her section 654 contention that no 

substantial evidence supported the trial court’s decision to 

impose consecutive terms. As for Barrientos, we are bound by 

Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 to 

follow the decisions of courts exercising superior jurisdiction, here 

the California Supreme Court as well as the United States 

Supreme Court. (Id. at p. 455 [“Courts exercising inferior 

jurisdiction must accept the law declared by courts of superior 

jurisdiction. It is not their function to attempt to overrule 

decisions of a higher court.”].) 
36

V. Second Strike Sentence for Barrientos

Barrientos contends, while the prosecution filed a prior 

conviction allegation pursuant to the California’s Three Strikes 

law and alleged the same conviction as a five-year prior under 

section 667, subdivision (a), no jury or a court trial was conducted 

to determine its truth.15 The Attorney General concedes. As 

well, our review of the record does not show the prior conviction 

alleged as a strike prior as well as a five-year prior was ever 

found true. As such, the second-strike sentence and the 

imposition of the five-year prior on count 2 must be vacated and 

remanded for trial and resentencing.16

15 The Information alleged Barrientos had suffered a prior 

conviction that constituted a “strike prior” under section 667, 

subdivision (d) and section 1170.12, subdivision (b) for a robbery, 

in violation of section 211 in case No. BA428427, suffered on 

April 8, 2015 in Los Angeles County Superior Court. The same 

prior conviction was also alleged as a five-year prior under 

section 667, subdivision (a).

16 The trial court used the strike prior only on count 2 for the 

attempted robbery when it doubled the middle term. The trial 

court also only imposed the five-year prior on count 2.
37

DISPOSITION

Sentence on count 2 for Barrientos is vacated. The matter 

is remanded for a trial on the prior conviction allegations and 

resentencing. Sentence on count 2 for Inzunza is remanded to 

vacate the imposition of a consecutive term and to stay the 

sentence pursuant to section 654. In all other respects, the 

judgment for Barrientos and Inzunza are affirmed. 

OHTA, J.*

We concur:

STRATTON, Acting P. J.

WILEY, J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.