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Filed 4/19/22 P. v. Barrera CA4/2

(opinion on 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCO ANTONIO BARRERA,

Defendant and Appellant.

E075416

(Super.Ct.No. RIF102091)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Reversed and remanded with directions.

Reed Webb, 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, Julie L. Garland and Charles C. Ragland, Assistant Attorneys

General, and Steve Oetting, Eric A. Swenson, and Paige B. Hazard, Deputy Attorneys

General, for Plaintiff and Respondent.
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Marco Antonio Barrera pled guilty to attempted murder in 2002 and was 

sentenced to 38 years in prison. In 2019, the California Department of Corrections and 

Rehabilitation (CDCR) recommended recalling his sentence and resentencing him based 

in part on his exemplary behavior while in prison. The trial judge did recall the sentence, 

but after hearing argument resentenced Barrera to the exact same term. Barrera appealed, 

and we initially affirmed the trial court’s decision.

Shortly after our decision, Assembly Bill No. 1540 (2021-2022 Reg. Sess.) 

(Assembly Bill 1540) went into effect, which changed the procedure for recall and 

resentencing upon a recommendation from the CDCR. On rehearing, Barrera argues he is

entitled to the ameliorative benefits of the changes to the law and the appropriate remedy 

is remand to the trial court for a new hearing on his petition. We agree, reverse, and 

remand.

I. FACTS

Eugene C. and Barrera were acquaintances who used methamphetamine together.

In 2002, Eugene was working in an apartment alone when Barrera entered singing a 

threatening song. For unknown reasons Eugene said, “What are you waiting for? Get on 

with it,” then stood up. Barrera grabbed Eugene’s arm, pulled a gun from his waistband, 

and shot Eugene in the head. Barrera shot Eugene twice more while he was on the 

ground. Eugene was able to flee to another apartment and get help, surviving the attack.

The Riverside County District Attorney charged Barrera with premeditated 

attempted murder and unlawfully possessing a firearm as a felon. (Pen. Code, §§ 664, 
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subd. (a), 187, subd. (a), 12021, subd. (a)(1), unlabeled statutory citations refer to this 

code.) The information also alleged enhancements for personally firing a firearm causing 

great bodily injury (§ 12022.53, subd. (d)) and for personally causing great bodily injury. 

(§ 12022.7, subd. (a).) Finally, the information alleged Barrera had two prior serious 

felony convictions (§ 667, subd. (a)) and four prior strike convictions based on 

convictions for residential burglary dating from 1987. (§§ 667, subds. (c) & (e)(1), 

1170.12, subd. (c)(1).)

After reaching a plea agreement, Barrera pled guilty to unpremeditated attempted 

murder, and admitted a firearm use enhancement (§ 12022.53, subd. (b)), one prior strike, 

and both prior serious felony enhancements. Following the terms of the agreement, the 

trial court sentenced Barrera to 38 years in prison, composed of nine years for the 

attempted murder—doubled to 18 due to the prior strike—10 years for the firearm 

enhancement, and two five-year terms from the prior serious felony enhancements.

In 2019, Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) went into 

effect, which allowed a trial court to strike or dismiss a prior serious felony enhancement. 

That same year the Secretary of the CDCR sent the trial court a letter recommending it 

recall Barrera’s sentence and reconsider whether to strike the prior serious felony 

enhancements. Barrera filed a petition seeking the same, which the prosecution opposed.

The trial judge heard argument on July 21, 2020. Barrera was represented by a 

public defender at the hearing. Both parties presented argument. After argument, the 

judge said he felt Barrera “received the full benefit of what he bargained for,” and noted 
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the underlying crime constituted “a vicious attack” that was “aggravated in every way it 

can be aggravated.” The judge expressed some confusion regarding whether he could 

decline to resentence under former section 1170, subdivision (d). He ultimately 

concluded “out of an abundance of caution,” he would resentence, but “adopt[] all of the 

decisions made by the original sentencing court.” He didn’t exercise his discretion to 

strike any of the enhancements and reimposed the exact same sentence. On appeal, we 

affirmed the trial judge’s decision to reimpose the same sentence. 

On October 8, 2021, the governor approved passage of Assembly Bill 1540, which

took effect on January 1, 2022. In an order received on January 3, 2022, the California 

Supreme Court directed us to vacate our prior decision and reconsider Barrera’s appeal in 

light of the change in the law.

II. ANALYSIS

On rehearing, Barrera argues he is entitled to the ameliorative benefits of 

Assembly Bill 1540. We agree.

Assembly Bill 1540 moved the recall and resentencing provisions formerly under 

section 1170, subdivision (d)(1), to new section 1170.03 and amended its requirements. 

(Stats. 2021, ch. 719.) The new provision directs that “[i]f a resentencing request . . . is 

from the Secretary of the Department of Corrections and Rehabilitation,” then “[t]here 

shall be a presumption favoring recall and resentencing of the defendant, which may only 

be overcome if a court finds the defendant is an unreasonable risk of danger to public 
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safety.” (§ 1170.03, subd. (b)(2).) Barrera argues he is entitled to a new hearing where the 

judge applies this presumption in his favor. We agree.

Because Barrera’s sentence is not yet final, the changes to recall and resentencing 

enacted by Assembly Bill 1540 apply to him. (People v. Garcia (2018) 28 Cal.App.5th 

961, 972.) Accordingly, he would usually be entitled to have his request for resentencing 

reconsidered under the terms of this new law. 

However, the People argue remand is not necessary because Barrera already 

received the ameliorative benefits to which section 1170.03 now entitles him. That is, 

Barrera already had a hearing where he was represented by counsel and where the judge

considered the CDCR’s recommendation with the benefit of argument from both parties. 

At the hearing, the judge accepted the CDCR’s recommendation, recalled Barrera’s 

sentence, and resentenced him to an identical sentence. Under these circumstances, the

only difference between the process Barrera received under former section 1170, 

subdivision (d), and the process he is now due under section 1170.03 is that he didn’t 

receive a presumption in favor of resentencing. But the People argue the fact Barrera 

didn’t receive this presumption doesn’t matter, because the judge opted to resentence him 

even without a presumption in favor of resentencing. Indeed, the judge mistakenly 

thought he might have to resentence Barrera, meaning the judge gave him more than he 

would be entitled to under the current law.

Nevertheless, we consider remand necessary to permit the court to reconsider the 

CDCR’s recommendation with section 1170.03’s changes to the law in mind. This 
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includes not just the new presumption in favor of resentencing—which we agree would 

not much benefit Barrera—but also section 1170.03’s requirement that if Barrera is 

resentenced, he must be resentenced according to sentencing law as it exists now. This 

would include changes to sentencing caused by Senate Bill Nos. 81 (Stats. 2021, ch. 721, 

§ 1) and 567 (Stats. 2021, ch. 731, §1.3) (Senate Bill 81 & Senate Bill 567), both 

effective January 1, 2022, which changed how a court can and when it must consider 

certain factors before imposing enhancements.

Senate Bill 81 amended section 1385 to include a series of mitigating 

circumstances and required courts to “consider and afford great weight to evidence 

offered,” to prove those mitigating circumstances. (§ 1385, subd. (c)(2).) Moreover, 

“[p]roof of the presence of one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal of the enhancement 

would endanger public safety.” (Ibid.) One such mitigating circumstance is where 

“[t]he enhancement is based on a prior conviction that is over five years old.” (§ 1385, 

subd. (c)(3)(H).)

Senate Bill 567, on the other hand, changed section 1170 to forbid a court from 

imposing more than the middle term except “when there are circumstances in aggravation 

of the crime that justify the imposition of a term of imprisonment exceeding the middle 

term, and the facts underlying those circumstances have been stipulated to by the 

defendant, or have been found true beyond a reasonable doubt at trial by the jury or by 

the judge in a court trial.” (§ 1170, subd. (b)(2).) However, “the court may consider the 
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defendant’s prior convictions in determining sentencing based on a certified record of 

conviction without submitting the prior convictions to a jury,” and those convictions may 

not also be used as the basis for enhancements. (§ 1170, subd. (b)(3), (5).)

Barrera’s sentence includes both an upper term and at least two enhancements 

based on crimes from the 1980’s. This means he would be entitled to a presumption in 

favor of dismissing the enhancements based on the age of the supporting convictions. The 

resentencing judge would also have to consider whether to use these convictions as a 

basis to support imposing the upper term, or as a basis for imposing the enhancements, 

but not both. These benefits weigh heavily in Barrera’s favor, and if he is resentenced 

under the new law, he is entitled to have his resentencing recommendation reconsidered 

in light of these changes.

Thus, even though Barrera has already been resentenced, and therefore the 

presumption in favor of resentencing doesn’t benefit him, the presumption plus the other 

changes have created a new resentencing paradigm. All these changes have created a 

wholly new procedure for considering the CDCR’s recommendations and resentencing 

under them, a procedure Barrera didn’t receive, and which would likely provide some 

ameliorative benefit. In short, because Barrera’s case is not final and the terms for how a 

recommendation from CDCR should be considered have changed, he is entitled to a fresh 

look under this new paradigm.1

1 The People argue that on remand, they must be permitted to withdraw from the 

plea agreement should the judge resentence Barrera. We do not address that contention 

because it isn’t ripe for our review. The judge hasn’t yet determined whether Barrera will 
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III. DISPOSITION

We reverse the resentencing order and remand. On remand, the court shall appoint 

counsel (§ 1170.03, subd. (b)(1)) and apply the presumption in favor of resentencing and 

may decline to resentence only if it determines Barrera is a threat to public safety. 

(§ 1170.03, subd. (b)(2).) If the judge intends to decline to resentence, they must hold a 

hearing “where the parties have an opportunity to address the basis for the intended 

denial or rejection.” (§ 1170.03, subd. (a)(8).) Should the judge resentence Barrera, they 

must “apply the sentencing rules of the Judicial Council and apply any changes in law 

that reduce sentences or provide for judicial discretion.” (§ 1170.03, subd. (a)(2).) This 

includes recent changes to judicial discretion enacted by Senate Bills 81 and 567, as well 

as any other ameliorative changes which post-date Barrera’s conviction.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

CODRINGTON

Acting P. J.

FIELDS

J.

be resentenced, nor otherwise considered the People’s argument, and so addressing that 

issue now would be answering a merely hypothetical question. (Pacific Legal Foundation 

v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [“the ripeness doctrine is primarily 

bottomed on the recognition that judicial decisionmaking is best conducted in the context 

of an actual set of facts so that the issues will be framed with sufficient definiteness to 

enable the court to make a decree finally disposing of the controversy”].) Nevertheless, 

the People may raise the argument with the trial judge should the judge decide to 

resentence Barrera.