Filed 3/9/23 P. v. Barragan CA2/2

Opinion following transfer from Supreme Court

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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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE BARRAGAN,

Defendant and Appellant.

 B308259

 (Los Angeles County

 Super. Ct. No. BA068035)

APPEAL from an order of the Superior Court of Los 

Angeles County, Lisa B. Lench, Judge. Reversed and remanded.

No appearance for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel Change and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

We affirmed the denial of defendant and appellant Jose 

Barragan’s (defendant) petition for resentencing pursuant to 

Penal Code former section 1170.95 in People v. Barragan

(Apr. 27, 2022, B308259) (nonpub. opn.).1 By order dated 

December 21, 2022, the California Supreme Court returned this 

case to this court with directions to vacate our previous decision 

and to reconsider the cause in light of People v. Strong (2022) 13 

Cal.5th 698 (Strong).

BACKGROUND

Defendant was convicted in 1994 of murder and robbery.2

As to the murder, the jury found true the special circumstance 

that the murder was committed during the course of a robbery. 

(§ 190.2, subd. (a)(17)(A).) The jury also found true the allegation 

pursuant to section 12022, subdivision (a)(l) that a principal was 

armed with a firearm during the commission of the crime.

Following the 1994 conviction of murder, attempted murder 

and other felonies, and the felony murder special circumstance, 

defendant was sentenced to prison for life without the possibility 

of parole and other consecutive terms. We affirmed the judgment 

in People v. Barragan (Apr. 4, 1996, B086562) (nonpub. opn.).

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

Effective June 30, 2022, Penal Code former section 1170.95 

was renumbered section 1172.6, with no change in text. (Stats. 

2022, ch. 58, § 10.) We will refer to the section by its new 

numbering only.

2 Defendant was also convicted of two additional robbery 

counts, attempted murder, shooting a firearm at an inhabited 

dwelling, and grand theft vehicle.
3

In 2020, defendant filed a petition for vacatur and 

resentencing under section 1172.6, that the trial court denied at 

the prima facie stage without appointing counsel, based upon the 

jury’s finding of the special circumstance. We held the failure to 

appoint counsel and permit briefing to be error but harmless, and

affirmed the denial on the grounds that the jury’s special

circumstance finding pursuant to section 190.2, subdivision 

(a)(17) made defendant ineligible as a matter of law for 

resentencing under section 1172.6. We further held that the 

jury’s special circumstance finding could not be challenged in a 

section 1172.6 proceeding based upon factors clarified after his 

conviction in People v. Banks (2015) 61 Cal.4th 788 (Banks) and 

People v. Clark (2016) 63 Cal.4th 522 (Clark). We reconsider that 

decision in light of Strong, supra, 13 Cal.5th 698.

DISCUSSION

In Strong, our high court held that a true finding on a 

felony murder special circumstance allegation that predates 

Banks, supra, 61 Cal.4th 788 and Clark supra, 63 Cal.4th 522 

does not preclude section 1172.6 relief as a matter of law. 

(Strong, supra, 13 Cal.5th at pp. 717-720.) This makes Banks

and Clark comparable to the kind of significant change in law 

traditionally found to warrant a reexamination of earlier litigated 

decisions, thereby rendering the rule of collateral estoppel 

inapplicable. (Strong, supra, at pp. 719-720.) The court also held 

that an erroneously denied petition based on that ground is not 

subject to a substantial evidence review for harmless error, as 

this would deny the defendant a determination beyond a 

reasonable doubt that the correct standards were met. It would 

also entail factfinding, which is prohibited at the prima facie 
4

stage. (Id. at p. 720, citing People v. Lewis (2021) 11 Cal.5th 952, 

972.)

The parties have been given the opportunity to file 

supplemental briefs addressing these issues and the People have 

done so, acknowledging that their previous arguments in People 

v. Barragan, supra, B308259, were the same as the arguments 

presented to and rejected by the high court in Strong, supra, 13 

Cal.5th 698. The People concede that the matter should be 

remanded to the trial court for it to issue an order to show cause 

and conduct an evidentiary hearing. The petition must then be 

granted unless the prosecution proves “beyond a reasonable 

doubt, that the petitioner is guilty of murder or attempted 

murder under California law as amended by the changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, 

subd. (d)(3).) Upon reconsideration of the cause in light of 

Strong, we conclude that the superior court erred in denying 

defendant’s petition. We therefore remand the matter for the 

issuance of an order to show cause and further proceedings in 

accordance with section 1172.6, subdivision (d).
5

DISPOSITION

The opinion and decision filed in this case on April 27, 

2022, is vacated and the denial of the section 1172.6 petition is 

reversed. The matter is remanded with directions to reappoint 

counsel, issue an order to show cause and for further proceedings 

in accordance with section 1172.6, subdivision (d).

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.