Filed 9/1/23 P. v. Barraza CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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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.

VINCENT BARRAZA,

Defendant and Appellant.

 B314798

 (Los Angeles County 

 Super. Ct. No. TA144705)

APPEAL from an order the Superior Court of Los Angeles 

County. Sean D. Coen, Judge. Affirmed. 

Jerome J. Haig, under appointment by the Court of Appeal,

for Defendant and Appellant.

No appearance for Plaintiff and Respondent. 

* * * * * * * * * *
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In November 2017, defendant and appellant Vincent 

Barraza brandished a semiautomatic handgun from the front 

yard of his home, fired it at a nearby elementary school, at two of 

his neighbors, and at four deputy sheriffs who arrived on the 

scene. (People v. Barraza (Jan. 10, 2020; B291988) [nonpub.

opn.].) Defendant then fled back inside his home and a standoff 

ensued that resulted in the elementary school being placed on 

lockdown. After deputies fired flash bang devices into the home,

defendant surrendered. (Ibid.) 

A jury convicted defendant of four counts of assault with a 

firearm on a police officer (Pen. Code, § 245, subd. (d)(1)),

two counts of assault with a semi-automatic firearm (§ 245, 

subd. (b)), two counts of shooting at an occupied dwelling (§ 246),

and possession of a firearm by a felon (§ 29800, subd. (a)(1)), and

the jury found true various firearm enhancements pursuant to 

section 12022.53. (People v. Barraza, supra, B291988.) In a 

bifurcated proceeding, defendant admitted that in 1997, he 

suffered a felony conviction for attempted robbery which qualified 

as a strike. Before sentencing defendant, the court denied his 

motion pursuant to People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 to strike the 1997 conviction, finding defendant 

had a “nonstop life of lawlessness” and did not fall outside the 

spirit of the Three Strikes law. The court sentenced defendant to 

53 years in prison. (People v. Barraza, supra, B291988.) 

While defendant’s direct appeal was pending, Senate 

Bill 1393 (2017–2018 Reg. Sess.) went into effect, giving trial 

courts discretion to strike a five-year enhancement for a prior 

felony conviction pursuant to Penal Code section 667, 

subdivision (a)—a previously mandatory sentencing

enhancement. (Stats. 2018, ch. 1013, § 1.)
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In January 2020, a panel of this court affirmed defendant’s 

conviction, remanding for the limited purpose of having the 

superior court correct two typographical errors in the abstract of 

judgment and, in light of the passage of Senate Bill 1393, to allow 

the trial court the opportunity to exercise its newly granted 

discretion to strike the five-year prior felony enhancement. 

(People v. Barraza, supra, B291988.) The remittitur issued 

March 20, 2020. 

The postremand hearing took place on July 29, 2020. 

Defendant was present with counsel. The court acknowledged 

receipt of documentation submitted by defendant regarding work 

performed and classes completed during his incarceration and 

said it had taken those into consideration. The court then 

declined to strike the five-year prior felony enhancement, 

incorporating the same reasons previously outlined by the court 

in denying defendant’s Romero motion and in imposing the 

firearm use enhancements. The court ordered an amended 

abstract of judgment to be prepared to correct the typographical 

errors. 

Defendant filed in propria persona a petition for writ of 

habeas corpus regarding the court’s failure to strike his prior 

felony conviction. The court denied the petition. 

By order dated September 14, 2021, we granted defendant’s 

application for relief from default for having failed to file a timely 

notice of appeal from the July 29, 2020 postremand hearing. 

Defendant subsequently filed his notice of appeal indicating the 

order appealed from was the “Senate Bill 1393 Re-Sentencing 

Hearing.” 

We appointed appellate counsel to represent defendant. 

Defendant’s appointed counsel, Jerome J. Haig, filed a brief 
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pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) in

which no issues were raised. The Wende brief included a 

declaration from Mr. Haig in which he explains that he advised 

defendant he would be filing a Wende brief, forwarded the brief 

and the record to defendant, and advised him of his rights to file 

a supplemental brief and to discharge him as his attorney. 

Mr. Haig also stated his availability to brief, upon request, any 

issues we may have following our independent review of the case. 

Defendant filed a supplemental brief raising seven issues: 

(1) the trial court failed to consider and give proper weight to all 

mitigating factors as required by the law as amended by Senate 

Bill 1393; (2) the trial court failed to exercise its discretion to 

strike the firearm enhancements and the five-year prior felony 

enhancement; (3) remand is appropriate to allow the trial court 

the opportunity to consider other newly passed legislation, 

including Assembly Bill 518 (2021–2022 Reg. Sess.) (amendments 

to Pen. Code, § 654) and Senate Bill 81 (2021–2022 Reg. Sess.) 

(amendments to § 1385); (4) ineffective assistance of counsel 

during postremand hearing; (5) ineffective assistance of counsel 

during trial; (6) this court should reconsider defendant’s sentence 

in light of the passage of the California Racial Justice Act of 2020 

(Assembly Bill 2542 (2019–2020 Reg. Sess.); newly enacted 

§ 745); and (7) this court should consider whether defendant 

lacked the requisite intent for assault due to voluntary 

intoxication.

DISCUSSION

In 2020, we affirmed defendant’s conviction without any 

finding of legal error and without vacating any part of the 

judgment. We remanded for further proceedings only because of 

the passage of Senate Bill 1393 during the pendency of the 
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appeal, and to allow for two typographical errors in the abstract 

of judgment to be corrected. Our limited remand did not 

implicate the full resentencing rule. (See, e.g., People v. 

Cervantes (2021) 72 Cal.App.5th 326, 330–332.) The trial court 

on remand had jurisdiction only to carry out our directions as set 

forth in the opinion and remittitur. (People v. Ramirez (2019) 

35 Cal.App.5th 55, 64; accord, Cervantes, at p. 332.)

At the July 29, 2020 postremand hearing, the trial court 

acknowledged the narrow scope of the proceedings and after 

hearing argument from counsel, chose not to strike the five-year 

felony prior and did not resentence defendant. Defendant 

continues to serve his original sentence as pronounced in 2018. 

(Peracchi v. Superior Court (2003) 30 Cal.4th 1245, 1255 [“if, 

after a limited remand involving the sentence, ‘the trial court 

decide[s] not to exercise its discretion to modify the original 

sentence, that sentence would remain in effect, and the defendant 

need not be resentenced but should be remanded to continue 

serving the term previously imposed’ ”]; see also People v. Walker

(2021) 67 Cal.App.5th 198, 204–205.)

In his supplemental brief, defendant first contends the trial

court erred by failing to consider all mitigating factors before 

declining to strike the five-year prior felony enhancement. 

Nothing in the record supports this contention. Judge Coen was 

the judge who presided over the trial and original sentencing in 

2018. At the start of the postremand hearing, Judge Coen stated 

he had read the record, the appellate opinion in defendant’s 

direct appeal and the packet of information submitted by 

defendant regarding his work history and classes completed 

while incarcerated. The court heard argument from counsel and 

then declined to strike the five-year felony enhancement based on
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the factors previously discussed and relied upon by the court in 

denying defendant’s Romero motion and in imposing 

enhancements—factors which the court still found relevant and 

compelling. Defendant has not shown the court failed to consider 

any mitigating factors. 

Defendant’s second and seventh issues do not relate to the 

court’s decision at the postremand hearing and are therefore 

outside the scope of this appeal. The issues could only have been 

raised on direct appeal. In fact, defendant did challenge the 

court’s imposition of the enhancements on direct appeal and we 

rejected his arguments. (People v. Barraza, supra, B291988.) 

Defendant’s fourth and fifth issues concern the alleged 

ineffective assistance of counsel, both during trial and during the 

postremand hearing in 2020. Defendant’s claims are 

inadequately presented and stated in a conclusory fashion. Any 

such claim should be raised, if at all, by way of a petition for writ 

of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 

266–267.) 

Defendant’s third and sixth issues concern new legislation 

that has been passed since the postremand hearing occurred, 

including Senate Bill 81 and Assembly Bills 518 and 2542. 

Senate Bill 81 amended Penal Code section 1385, adding, 

as relevant here, a new subdivision (c). (Stats. 2021, ch. 721, § 1.) 

However, the statutory language expressly states that “[t]his 

subdivision shall apply to all sentencings occurring after 

January 1, 2022.” (Pen. Code, § 1385, subd. (c)(7), italics added.) 

Defendant’s sentencing predated the enactment of the statute

and does not provide defendant a basis for any relief. 

Assembly Bill 518 amended Penal Code section 654, 

removing the requirement for a sentencing court to impose the 
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longest term. (Stats. 2021, ch. 441, § 1.) Courts have concluded 

the new statutory language applies retroactively to all 

convictions not yet final on appeal. (See e.g., People v. Sek (2022) 

74 Cal.App.5th 657, 673.) However, defendant’s conviction is 

final as it was affirmed on appeal in 2020 and defendant did not 

seek further review. On remand, the trial court did not 

resentence defendant and his original sentence remains intact. 

(Peracchi v. Superior Court, supra, 30 Cal.4th at p. 1255.) 

Assembly Bill 2542, otherwise called the California Racial 

Justice Act of 2020, prohibits state criminal prosecutions and 

sentences based on race, ethnicity or national origin. 

(Stats. 2020, ch. 317, § 3.5; Pen. Code, § 745, subd. (a).) 

Defendant asks this court to reconsider his sentence in the first 

instance based on the new law. Whether defendant has any 

claim under the Racial Justice Act is not properly before us. 

Penal Code section 745, subdivision (b) plainly states that where, 

as here, judgment has already been imposed, a defendant “may 

file . . . in the trial court . . . a petition for writ of habeas corpus” 

and seek to make a prima facie showing that his sentence is 

improperly based on race, ethnicity or national original as 

contemplated by the statutory scheme.

DISPOSITION

The trial court’s order of July 29, 2020 is affirmed. 

GRIMES, Acting P. J.

WE CONCUR:

WILEY, J. VIRAMONTES, J.