Filed 6/22/21 P. v. Barragan CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN BARRAGAN,

Defendant and Appellant.

 B304388

 (Los Angeles County

 Super. Ct. No. BA242184)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, Robert J. Perry, Judge. Affirmed.

Kevin D. Sheehy, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda V. Lopez, Supervising Deputy Attorney 

General, and Stacy S. Schwartz, Deputy Attorney General, for Plaintiff 

and Respondent.
2

This appeal is from the trial court’s summary denial of defendant 

and appellant Adrian Barragan’s motion for resentencing under Penal 

Code section 1170.95.1

By information in November 2003, appellant and his cousin

Daniel Robert Barragan were charged with murder (§ 187, subd. (a), 

count 1), two counts of attempted murder (§ 664/187, subd. (a), counts

2-3), and shooting at an occupied motor vehicle (§ 246).

2 The

information also alleged, inter alia, that: appellant intentionally killed 

the victim while actively participating in a criminal street gang 

(§ 190.2, subd. (a)(22)); the murder was intentional and perpetrated by 

means of discharging a firearm from a motor vehicle (§ 190.2, subd. 

(a)(21)); and Daniel personally and intentionally discharged or used a 

firearm causing great bodily injury or death (§ 12022.53, subd. (d)).

Appellant and Daniel were jointly tried. By general verdict in 

2004, a jury found appellant guilty of first degree murder, attempted 

willful, deliberate and premeditated murder, and shooting at an 

occupied vehicle. The jury also found true the gang-murder special 

circumstance and firearm enhancement allegation. The jury returned 

no verdict on the special circumstance allegation that the murder was 

perpetrated by means of discharging a firearm from a motor vehicle. In 

a bifurcated proceeding, the trial court sentenced appellant to an 

1 Undesignated statutory references are to the Penal Code. 

2 For ease of reading, we refer to Daniel Barragan by his first name. 

Daniel is not a party to this appeal.
3

overall term of life imprisonment without the possibility of parole, plus 

25 years for the firearm enhancement.

In 2019, appellant filed a petition for resentencing under section 

1170.95, which provides that persons who were convicted under 

theories of felony murder or murder under the natural and probable 

consequences doctrine, and who could no longer be convicted of murder 

following the enactment of Senate Bill No. 1437 (S.B. 1437), may 

petition the sentencing court to vacate the conviction and resentence on 

any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) Prior to

the appointment of counsel or briefing by the parties, the trial court 

summarily denied appellant’s petition. Relying on the facts as stated in 

appellant’s direct appeal (People v. Barragan (Nov. 29, 2005, B175130) 

[nonpub. opn.] (Barragan I)), the court reasoned that the “evidence at 

trial clearly demonstrated [appellant] acted with an intent to kill and as 

a major participant in the crime.” Based on these findings, the court 

concluded that appellant was ineligible for relief as a matter of law. 

In this appeal, appellant contends that the trial court erred by 

summarily denying his petition without appointing him counsel, as he 

requested, and by engaging in factfinding to determine his ineligibility 

for relief as a matter of law. We conclude that though the trial court’s 

engaging in factfinding was in error, the conclusion it reached was not. 

As the non-shooter in this case, appellant was tried as an aider and 

abettor (CALJIC Nos. 3.00-3.01), and the jury was instructed on three 

theories of first degree murder: premeditated murder, drive-by murder, 

and a felony murder theory (based on a modification of standard 

instructions) based on the discharge of a firearm from a motor vehicle 
4

(CALJIC Nos. 8.20, 8.25.1, 8.21). To convict appellant of first degree 

murder as an aider and abettor under these theories, the jury was 

required to find that he shared the intent of the perpetrator to kill the 

victim. Because these theories remain valid in the wake of S.B. 1437 

(see § 189, subd. (e)), appellant remains ineligible for relief as a matter 

of law. We affirm.

3

FACTUAL BACKGROUND4

Appellant and Daniel are members of the Eastside Clover Street 

gang. The murder victim, Frank Ibarra, had been affiliated with the 

gang when he was younger but had since disassociated himself from it. 

Ibarra still lived in the gang’s territory, and on many prior occasions, 

had been physically harassed by appellant and other gang members. 

On the evening of January 17, 2003, Ibarra and his two 

companions (Ruben Colunga and Ramon Lopez) went to a local Jack-inthe-Box restaurant. After pulling his vehicle into the drive-thru lane, 

Ibarra placed an order. As the three men waited, Ibarra saw appellant 

next to him, seated in the driver’s seat of a sedan. Scared and shocked, 

Ibarra pointed out appellant to his companions. Appellant was 

3 In light of our conclusion, we do not reach appellant’s alternative 

contention (with which the People agree) that the trial court’s alternative 

basis for denying his petition—that S.B. 1437 and section 1170.95 are 

unconstitutional—was in error.

4 We recite the factual and procedural background from our opinion in 

Barragan I.
5

accompanied by two other people—his cousin Daniel in the front 

passenger seat, and an unidentified individual in the back seat.

Appellant stared at the men in a threatening manner. 

Ibarra quickly tried to drive away from the restaurant, but 

appellant moved his car to block him. Ibarra drove toward another exit. 

While Ibarra’s vehicle passed by appellant’s, appellant called Ibarra 

and his companions names. Then, “[appellant] made a U-turn in his car 

and followed Ibarra’s vehicle around the restaurant parking lot. As 

Ibarra was about to exit onto the street, [Daniel] leaned out of the front 

passenger window and shot multiple times at Ibarra’s vehicle.” 

Colunga was wounded, and Ibarra was killed by a single gunshot 

wound to the head. His vehicle crashed into a tree. The impact of the 

crash injured Lopez. After the crash, shots continued to come from 

appellant’s sedan. Appellant then drove away.

Police responded to the scene and identified three bullet holes in 

Ibarra’s vehicle. Officers recovered six expended 9 millimeter 

cartridges, one live 9 millimeter cartridge, and two spent 9 millimeter 

bullets. During the course of several interviews, the surviving victims

made photographic identifications of appellant and Daniel.

Appellant’s girlfriend testified that she had lent her sedan to 

appellant on the night of the shooting. From a photograph taken from a 

Jack-in-the-Box surveillance tape, appellant’s girlfriend identified 

appellant as the driver of the sedan. 

According to expert testimony, the shooting was gang motivated. 

The murder bolstered the defendants’ reputations within the Eastside 
6

Clover Street gang, and showed the community that the gang would 

punish an individual, such as Ibarra, for disassociating from the gang.

Neither appellant nor Daniel testified. During closing argument, 

appellant’s trial counsel argued that despite driving the sedan during 

the shooting, appellant lacked the requisite mental state to be liable as 

an aider and abettor to Ibarra’s murder. The prosecution argued that 

Daniel was the actual shooter, and appellant was liable as an aider and 

abettor to drive-by murder. 

PROCEDURAL BACKGROUND

In appellant’s direct appeal in 2005, we reversed his two 

convictions for attempted murder based on instructional error,5 but 

otherwise affirmed the judgment. In 2018, appellant filed a petition for 

writ of habeas corpus seeking relief under People v. Chiu (2014) 59 

Cal.4th 155, 158. The trial court denied the petition, and explained 

that the jury had not been instructed on aider and abettor liability for 

first degree premeditated murder under the natural and probable 

consequences doctrine. 

5 During deliberations, the jury submitted a question to the court as 

follows: “Is a defendant guilty of attempted murder of person B if he or she: 

[¶] . . . [i]ntends to kill person A but wounds person B?” As to both 

defendants, the court gave an instruction on the kill zone theory of attempted 

murder (CALJIC No. 8.66.1). We found the supplemental instruction 

properly given as to Daniel, but found submission of the instruction as to 

appellant to be in error. (See Barragan I, supra, at p. 12 [the instruction 

“permitted the jury to convict [appellant] of attempted murder on a legally 

unsound basis: vicarious liability for his codefendant’s intent to create a ‘kill 

zone’”].) 
7

On November 14, 2019, appellant filed a petition for resentencing 

pursuant to section 1170.95, claiming entitlement to relief because he 

was convicted of first degree murder under a felony-murder theory or

the natural and probable consequences doctrine. Appellant requested 

that counsel be appointed on his behalf. 

The day after the petition was filed, the trial court summarily 

denied it in a written memorandum. After setting forth the facts of the 

case as we discussed in Barragan I, the court found that the “trial 

evidence clearly established, and the jury found, that [appellant] acted 

with an intent to kill and was a major participant who acted with 

reckless indifference to human life.” 

Appellant timely filed a notice of appeal.

DISCUSSION

Appellant contends that that trial court erred by summarily 

denying his petition without appointing him counsel and receiving 

briefing by the parties. He also contends the court committed error by 

weighing the facts in Barragan I to determine whether he was ineligible 

for relief as a matter of law. 

Prior to the hearing on this appeal, we sent the parties a letter 

directing them to address the following three issues: (1) whether under 

the modified jury instruction for felony murder based on the discharge 

of a firearm from a motor vehicle (CALJIC No. 8.21), the jury 

necessarily determined that appellant, as an aider and abettor, had 

knowledge of the unlawful purpose of the perpetrator and the intent or 

purpose of committing or facilitating the commission of that crime, and 
8

by act or advice aided, promoted, or instigated the commission of the 

crime; (2) whether, if the answer to question (1) is yes, appellant is 

ineligible for relief as a matter of law if convicted on that theory; and 

(3) whether the remaining theories of first degree murder remain valid 

following the enactment of SB 1437.

In their supplemental briefs, appellant answered these questions 

in the negative, and the People answered them in the affirmative. We 

agree with the People.

1. Proceedings Under Section 1170.95

The legislature enacted S.B. 1437 “to amend the felony murder 

rule and the natural and probable consequences doctrine, as it relates to 

murder, to ensure that murder liability is not imposed on a person who 

is not the actual killer, did not act with the intent to kill, or was not a 

major participant in the underlying felony who acted with reckless 

indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, 

§ 189, subd. (e).) 

S.B. 1437 also “added a crucial limitation to section 188’s 

definition of malice for purposes of the crime of murder.” (People v. 

Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted, 

S260493, Mar. 18, 2020.) Under the revised section 188, subdivision 

(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or 

her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43 

Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.) 

Section 1170.95, as enacted by S.B. 1437, permits individuals who

were convicted of felony murder or murder under the natural and 
9

probable consequences doctrine, but who could not be convicted of 

murder following S.B. 1437’s changes to sections 188 and 189, to 

petition the sentencing court to vacate the conviction and resentence on

any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under 

section 1170.95 must include a declaration by the petitioner that he is 

eligible for relief under section 1170.95 based on all the requirements of 

subdivision (a), the superior court case number and year of the 

petitioner’s conviction, and a request for appointment of counsel, should 

the petitioner seek appointment. (§ 1170.95, subd. (b)(2).) 

Subdivision (c) of section 1170.95 provides: “The court shall 

review the petition and determine if the petitioner has made a prima 

facie showing that the petitioner falls within the provisions of this 

section. If the petitioner has requested counsel, the court shall appoint 

counsel to represent the petitioner. The prosecutor shall file and serve 

a response within 60 days of service of the petition and the petitioner 

may file and serve a reply within 30 days after the prosecutor response 

is served. These deadlines shall be extended for good cause. If the 

petitioner makes a prima facie showing that he or she is entitled to 

relief, the court shall issue an order to show cause.” (§ 1170.95, subd. 

(c).) The remainder of section 1170.95 sets forth the procedure for 

responding to, and the hearing on, the order to show cause, as well as 

post-hearing matters. 

Consistent with many defendants before him, here appellant

contends that subdivision (c) mandates that prior to denying a petition

for resentencing, the court must appoint counsel, if requested, and

accept briefing by the parties. As we have noted in our previous
10

opinions, this contention has been rejected by numerous courts, and the

issue is currently before our Supreme Court. (Lewis, supra, 43

Cal.App.5th at pp. 1137–1140; People v. Cornelius (2020) 44

Cal.App.5th 54, 58, rev. granted, S260410, Mar. 18, 2020; Verdugo,

supra, 44 Cal.App.5th 320.) 

We continue to follow the procedure as set forth in Verdugo, 

supra, 44 Cal.App.5th 320. In that case, the court reasoned that 

subdivision (c) of section 1170.95, prescribes “a two-step process” for the 

court to determine if it should issue an order to show cause. (Verdugo,

supra, 44 Cal.App.5th at p. 327.) The court first “review[s] the petition 

and determine[s] if the petitioner has made a prima facie showing that 

the petitioner falls within the provisions of this section.” (§ 1170.95, 

subd. (c).) The petitioner makes a prima facie showing so long as the 

assertions in his or her petition are not conclusively refuted by facts in 

the record of conviction as a matter of law. (Verdugo, supra, at p. 327; 

see People v. Drayton (2020) 47 Cal.App.5th 965, 968, 980; see also 

People v. Duchine (2021) 60 Cal.App.5th 798; but see People v. Garcia

(2020) 57 Cal.App.5th 100, 116, rev. granted, Feb. 10, 2021, S265692.) 

If the petition states a prima facie case at the first prima facie stage of 

review, the court shall then appoint counsel, if requested, and review 

the petition a second time after briefing by the parties to determine if 

petitioner has established a prima facie case for relief. (Verdugo, supra, 

44 Cal.App.5th at p. 327; see Lewis, supra, 43 Cal.App.5th at p. 1140.) 
11

2. Relevant Background: Jury Instructions and Verdict

The jury was instructed on three alternative theories of first 

degree murder. The first two theories were premeditated murder and 

drive-by murder under the standard CALJIC instructions (CALJIC Nos. 

8.20, 8.25.1).

6 The third theory was a version of felony murder based on 

the discharge of a firearm from a motor vehicle. As to this theory, the 

trial court gave a modified version of CALJIC No. 8.21, as follows:

“The unlawful killing of a human being, whether intentional, 

unintentional or accidental, which occurs during the commission or 

attempted commission of the crime [of] discharging a firearm from a 

motor vehicle intentionally at another person outside of the vehicle with 

the intent to inflict death is murder of the first degree when the 

perpetrator had the specific intent to commit that crime. [¶] The 

specific intent to commit said offense and the commission or attempted 

commission of that crime must be proved beyond a reasonable doubt.”

Regarding these theories of culpability, the court further 

instructed the jury on the following principles of aiding and abetting:

“Persons who are involved in committing a crime are referred to 

as principals in that crime. . . . Principals include: [¶] 1. Those who 

directly and actively commit the act constituting the crime, or [¶] 2. 

6 CALJIC No. 8.20 provided inter alia that “[a]ll murder which is 

perpetrated by any kind of willful, deliberate and premeditated killing with 

express malice aforethought is murder of the first degree.” 

CALJIC No. 8.25.1 provided: “Murder which is perpetrated by means 

of discharging a firearm from a motor vehicle intentionally at another person 

outside of the vehicle when the perpetrator specifically intended to inflict 

death, is murder of the first degree.” 
12

Those who aid and abet the commission of the crime.” (CALJIC No. 

3.00.) “A person aids and abets the commission of a crime when he: [¶]

(1) With knowledge of the unlawful purpose of the perpetrator, and [¶]

(2) With the intent or purpose of committing or encouraging or 

facilitating the commission of the crime, and [¶] (3) By act or advice 

aids, promotes, encourages or instigates the commission of the crime. 

[¶] . . . [¶] Mere presence at the scene of a crime which does not itself 

assist the commission of the crime does not amount to aiding and 

abetting. [¶] Mere knowledge that a crime is being committed and the 

failure to prevent it does not amount to aiding and abetting.” (CALJIC 

No. 3.01.) 

By general verdict, the jury found appellant guilty of first degree 

murder. The verdict form did not specify which theory of first degree 

murder it found to be true. 

3. The Record of Conviction Establishes as a Matter of Law that 

Appellant is Ineligible for Resentencing

It is undisputed that appellant was tried and convicted not as the 

actual killer, but as an aider and abettor. (See Barragan I, supra, at 

pp. 2, 7.) It is also undisputed that the jury was instructed on three 

different theories of first degree murder against both defendants: 

(1) premeditated murder; (2) drive-by murder; and (3) felony murder 

based on the intentional discharge of a firearm from a motor vehicle.

Appellant does not dispute that he would be ineligible for relief as 

a matter of law if he were convicted as an aider and abettor under the 

first two theories of culpability. We find the concession well taken. To 
13

convict appellant of either theory as an aider and abettor, the jury was 

required to find that he harbored the specific intent to kill the victim. 

(See Verdugo, supra, 44 Cal.App.5th at p. 335 [premeditated murder];

People v. Chavez (2004) 118 Cal.App.4th 379, 386–387 [drive-by 

murder] (Chavez); see also Lewis, supra, 43 Cal.App.5th at p. 1135 

[“[o]ne who directly aids and abets another who commits murder is thus 

liable for murder under the new law just as he or she was liable under 

the old law”].)

However, appellant contends that because the jury returned a 

general verdict for first degree murder, it could have convicted him as 

an aider and abettor under the third theory of liability for felony 

murder based on the intentional discharge of a firearm from a motor 

vehicle. He contends that his liability for first degree murder as an 

aider and abettor under this theory, as presented in the modified 

version of CALJIC No. 8.21, did not require a finding that he intended 

to kill. We disagree. 

An aider and abettor must “‘“share the specific intent of the 

perpetrator,”’” meaning he or she must “‘“know[] the full extent of the 

perpetrator’s criminal purpose and give[] aid or encouragement with the 

intent or purpose of facilitating the perpetrator’s commission of the 

crime.” [(People v. Beeman (1984) 35 Cal.3d 547, 560.)]’ (People v.

Prettyman [(1996)] 14 Cal.4th [248,] 259.) What this means here, when 

the charged offense and the intended offense—murder . . . —are the 

same, i.e., when guilt does not depend on the natural and probable 

consequences doctrine, is that the aider and abettor must know and 
14

share the murderous intent of the actual perpetrator.” (People v. McCoy

(2001) 25 Cal.4th 1111, 1118 (McCoy), fn. omitted.)

In the instant case, the jury was instructed on these principles of

aiding and abetting. (See CALJIC No. 3.01.) Because the target offense 

listed in the felony murder instruction required the perpetrator to 

discharge a firearm “with the intent to inflict death,” to convict 

appellant of first degree murder under this theory as an aider and 

abettor, the jury was required to find beyond a reasonable doubt that he

knew the full extent of the unlawful purpose of the perpetrator and 

gave aid or encouragement with the intent or purpose of facilitating the 

commission of the drive-by murder. (Ibid.) In other words, the jury was 

required to find that he knew and shared the murderous intent of the 

actual shooter. (Compare CALJIC No. 3.01 with McCoy, supra, 25 

Cal.4th at p. 1118; see Chavez, supra, 118 Cal.App.4th 379, 387.)7 

Anticipating this result, appellant contends that the modified 

instruction is ambiguous because it contemplates a conviction for a 

killing “whether intentional, unintentional or accidental.” He asserts 

that the word “unintentional” as one of three options for an unlawful 

7 It is for this reason that the Fifth District held that “the drive-byshooting clause added to section 189 . . . is not an enumerated felony for 

purposes of the felony-murder rule.” (Chavez, supra, 118 Cal.App.4th at 

p. 386; see id. at p. 385 [“Although the drive-by-shooting clause appears

immediately after the list of enumerated felonies in section 189, it is clear

from the content of the clause that drive-by shooting is not part of that list. 

The drive-by-shooting clause requires an ‘intent to inflict death’ which is 

never an element of felony murder”].) We do not endeavor to analyze the 

propriety of the modified felony murder instruction in this case, as appellant 

did not raise this claim of error in his direct appeal. (See People v. Allison

(2020) 55 Cal.App.5th 449, 461.) 
15

killing “is ambiguous and uncertain as to whose state of mind it refers 

to.” 

Neither the jury nor this reviewing court construes in isolation a

sentence fragment appearing in a jury instruction. Indeed, the trial 

court in this case instructed the jury to do the very opposite: “Do not 

single out any particular sentence or any individual point or instruction 

and ignore the others. Consider the instructions as a whole and each in 

light of all the others.” (CALJIC No. 1.01.) We also review the 

instructions as a whole, and presume that the jurors are intelligent and 

able to understand and correlate the trial court’s instructions to the 

facts of the case. (People v. Carey (2007) 41 Cal.4th 109, 130; People v. 

Cain (1995) 10 Cal.4th 1, 36.) 

When the instructions are viewed as a whole, it is clear the word 

“unintentional” did not mislead the jury into shirking its responsibility

to analyze appellant’s conduct and state of mind as an aider and abettor 

to drive-by murder. As we have already discussed, the mental state 

required for that theory of liability was the specific intent to kill. 

Likewise, in convicting appellant of first degree murder, the jury found 

true the special circumstance allegation that appellant intentionally 

killed the victim while he was an active participant in a criminal street 

gang (§ 190.2, subd. (a)(22)). This special circumstance requires a 

finding of an intent to kill. (See ibid. [“[t]he defendant intentionally 

killed the victim while the defendant was an active participant in a 

criminal street gang”].) This confirms that appellant’s conviction was 

necessarily based on his intent to kill the victim as an aider and abettor 

in the murder. 
16

In sum, because all three theories of first degree murder in this 

case required a finding that appellant harbored an intent to kill, the 

jury’s first degree murder verdict renders him ineligible for relief as a 

matter of law. (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. 

(e).) Therefore, the court did not err in summarily denying his petition 

for resentencing without the appointment of counsel. (See People v. 

Smithey (1999) 20 Cal.4th 936, 972 [reviewing courts will affirm a 

conviction if right upon any theory of the law applicable to the case 

regardless of the trial court’s considerations].)

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

CURREY, J.