Filed 4/27/22 P. v. Barragan CA2/2

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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. Affirmed.

Susan Wolk, under appointment by the Court of Appeal, 

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

Defendant and appellant Jose Barragan (defendant) 

appeals from the summary denial of his petition for vacatur 

and resentencing pursuant to Penal Code section 1170.95.1 He 

contends that the trial court erred in failing to appoint counsel 

and entertain briefing, and in ruling that the petition was 

barred as a successive petition or a motion for reconsideration 

of defendant’s prior petition. Defendant also contends that in

his petition he made a prima facie showing that he falls within 

the provisions of section 1170.95 and that the jury’s true 

finding in his murder trial pursuant to section 190.2, 

subdivision (a)(17) did not bar relief as a matter of law.

We agree that the trial court erred in summarily denying 

the petition without appointing counsel and entertaining 

briefing, and that the petition should not have been barred as a 

successive petition or motion for reconsideration. However, we 

find the errors to be harmless. The jury’s true finding that the 

murder was committed while defendant was engaged in a 

specified felony pursuant to section 190.2 precluded a prima 

facie showing for relief under section 1170.95, as a matter of 

law. We thus affirm the trial court’s order.

The 1994 murder conviction

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. 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

2 Defendant was also convicted of two additional robbery 

counts, attempted murder, shooting a firearm at an inhabited 

dwelling, and grand theft vehicle.
3

(§ 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 crimes. (See People v. Barragan (Apr. 4, 1996, B086562)

[nonpub. opn.] (Barragan I).) Defendant was sentenced to life 

in prison without the possibility of parole and other 

consecutive terms. We affirmed the judgment in Barragan I.

The appellate opinion in Barragan I summarized the 

facts presented at trial as follows:

“Jose Gallarzo worked at 1906 East First 

Street, near State Street. He was shot by a rifle at 

about 9 p.m. in an alley behind his place of 

business. Neighbors heard brief, loud arguing in 

Spanish and then three shots. One neighbor, 

Olivia Escobedo Gonzalez, heard the argument 

before the shooting started; saw one man hold the 

victim while the other assailant had a gun pointed 

at him; and shouted to let the man go; but the 

assailant with a gun turned around and told her, 

in English, to shut up. Another neighbor, Juan 

Herrera, ran downstairs after hearing the shots 

and saw two people who looked Hispanic running 

away. One was wearing jeans and a white tee 

shirt, and he tried to stick something in his 

waistband. The victim was screaming, shouting 

‘Me dieron’ or ‘They hit me. They hit me.’ A lot of 

blood was coming from his abdominal area. [¶] 

Another witness, Francisco Ignacio, was with his 

girlfriend in a van in the alley completing her 

homework when he heard three shots and tried to 

leave the alley. He encountered Gallarzo’s body, 

stopped, and got out. Gallarzo, in pain, told him 

‘dos morros’ (two young guys) attempted to rob 

him, tried to steal his wallet, shot him, and ran 
4

towards State Street. [¶] Gallarzo told Officer 

Sanchez that he had been shot by two male 

Hispanics, who were about 24 to 27 years old. One 

wore a black baseball hat, black shirt, and black 

pants. The other wore a white baseball cap and Tshirt with black pants. Sanchez accompanied the 

victim to the hospital; he died within one and onehalf hour of massive bleeding caused by two 

gunshot wounds. [¶] When Mrs. Gallarzo received 

his personal effects, the chain and new watch he 

was wearing that night were not among them. The 

police discovered this on November 23, 1992, when 

they interviewed her following Barragan’s 

November 18 statement.” (Barragan I, supra,

B086562, fns. omitted.)

The opinion’s summary of defendant’s statement to law 

enforcement is set forth in part as follows:

“[Defendant] told Sanchez that on 

November 8, he had repaired the subject blue 

Oldsmobile, which belonged to his girlfriend. He 

and [Daniel] Cabral, known as ‘Stranger,’ went 

riding around the area; Cabral had a 

semiautomatic rifle with an ammunition clip. 

They went to an alley near First and State where 

Cabral held a rifle on Gallarzo, removed the 

victim’s gold chain and religious medallion (later 

given to Cabral’s girlfriend), and shot the victim 

when he refused to hand over his money. They 

ran, stashed and then retrieved the rifle, and drove 

toward St. Louis Street.” (Barragan I, supra,

B086562.)

Section 1170.95

In 2018, the Legislature passed Senate Bill No. 1437

(2017-2018 Reg. Sess.), which amended the laws pertaining to 
5

felony murder and murder under the natural and probable 

consequences doctrine, “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); see People v. 

Gentile (2020) 10 Cal.5th 830, 842.) Senate Bill No. 1437 also 

added former section 1170.95, which provided a procedure for 

those convicted of murder to retroactively seek relief if they 

could not be convicted under sections 188 and 189 as amended 

effective January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 

952, 959 (Lewis).) The statute allowed for vacatur of the 

murder conviction and resentencing by filing a petition 

alleging that (1) “[a] complaint, information, or indictment was 

filed against [him] that allowed the prosecution to proceed 

under a theory of felony murder or murder under the natural 

and probable consequences doctrine,” (2) he “was convicted of 

first degree or second degree murder following a trial,” and (3) 

he “could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, former subd. (a).)3

Upon the filing of a petition alleging all the enumerated 

conditions for relief under section 1170.95, the statute requires 

3 In 2021, Senate Bill No. 775 (2021-2022 Reg. Sess.), 

which amended section 1170.95, was enacted. (Stats. 2021, ch. 

551, § 2.) Effective January 1, 2022, section 1170.95, 

subdivision (a)(2) applies to those convicted of not only murder, 

but also attempted murder or manslaughter under the natural 

and probable consequences doctrine. (§ 1170.95, subd. (a).)
6

the trial court to take the allegations as true, appoint counsel if 

requested, and entertain briefing, regardless of whether the 

record of conviction demonstrates that the defendant is not 

entitled to relief. (Lewis, supra, 11 Cal.5th at pp. 957, 962-963, 

971-972;

4 see § 1170.95, subds. (b), (c).) After the appointment 

of counsel and considering the parties’ briefs, the court may 

review the record of conviction to determine the truth of the 

allegations of the petition and to aid the court in assessing 

whether a petitioner has made a prima facie showing. (Lewis, 

at pp. 957, 972.) If not, the petition may be summarily denied. 

If so, the court must then issue an order to show cause and 

schedule an evidentiary hearing. (Ibid.) At the show cause 

hearing, the prosecution bears the burden of proving beyond a 

reasonable doubt that the petitioner is ineligible for section 

1170.95 relief. (§ 1170.95, subd. (d)(1) & (3).)

Defendant’s two section 1170.95 petitions

On August 23, 2019, defendant filed a petition for 

vacatur of his murder conviction and for resentencing pursuant 

to section 1170.95. The petition sufficiently alleged the 

required conditions and requested counsel. The trial court 

summarily denied the petition without appointing counsel or 

receiving briefs. The court reviewed the record of conviction

4 Published July 26, 2021, after both of defendant’s two 

petitions had been denied, Lewis resolved a split of authority 

among the Courts of Appeal regarding whether section 1170.95 

permitted the trial court to review the record of conviction 

prior to appointing counsel and receiving briefs to determine 

whether defendant had made the prima facie showing required 

by section 1170.95, subdivision (c). (Lewis, supra, 11 Cal.5th at 

pp. 957, 972.)
7

and found that, although the jury was instructed with regard 

to felony murder and that defendant was not the actual killer, 

defendant was ineligible for relief. The court explained that in 

this case, defendant was charged with a special circumstance 

pursuant to section 190.2, subdivision (a)(17). The jury was 

instructed with CALJIC No. 8.80.1, which required it to find,

beyond a reasonable doubt, that if defendant was not the 

actual killer, he aided and abetted the murder with the intent 

to kill or was a major participant who aided and abetted the 

robber and acted with reckless indifference to human life. The 

jury found the special circumstance allegation to be true. The 

jury then made the exact findings that is required by the newly 

amended section 189. As such, defendant does not fall within 

the purview of those who are entitled to the relief provided in 

section 1170.95. Defendant failed to file a timely notice of 

appeal from the order denying his first petition.

On August 10, 2020, defendant filed another section 

1170.95 petition, again alleging the three required conditions 

and requesting appointment of counsel. On August 25, 2020, 

the trial court summarily denied the petition without 

appointing counsel or receiving briefs. The court found that 

the petition was a successive petition because it raised the 

same claims as those raised in defendant’s prior petition, 

which the court had denied on October 17, 2019. The court 

held there was no right to file a successive petition and denied 

it on that ground. The court added that if treated as a motion 

for reconsideration, the petition would not be granted as it did 

not raise any new issues justifying reconsideration of the 

court’s original ruling.

Defendant filed a timely notice of appeal from that order.
8

DISCUSSION

Defendant contends that the trial court erred in ruling 

that his petition was procedurally barred as a successive 

petition, that the trial court erred in summarily denying the 

petition without appointing counsel and allowing the parties to 

file briefs, and that the trial court erred in ruling that a true 

finding as to the special circumstance alleged under section 

190.2, subdivision (a)(17) renders a section 1170.95 petitioner 

ineligible for relief as a matter of law. Defendant argues that 

the court should have held an evidentiary hearing conducted 

pursuant to section 1170.95, subdivision (d)(3) to determine

whether defendant was a major participant in the robbery who 

acted with reckless indifference to human life under factors set 

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

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

We agree that as defendant’s petition alleged all three 

conditions and requested appointment of counsel, the trial

court was required to appoint counsel and allow the parties to 

file briefs before considering the record of conviction. 

(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 957, 962-

963, 971-972.) We also agree that defendant’s second petition 

was not barred as a successive petition as there exists a 

disagreement among Courts of Appeal regarding the 

Banks/Clark issue. As of the date the court denied the 

petition, at least two appellate courts had ruled that a true 

finding under section 190.2, subdivision (a)(17) precluded a 

defendant from making a prima facie showing of entitlement to 

relief even if that finding, like defendant’s conviction, predated 

the decisions in Banks and Clark. (See, e.g., People v. Galvan
9

(2020) 52 Cal.App.5th 1134, 1142; People v. Gomez (2020) 52 

Cal.App.5th 1, 14-17, review granted Oct. 14, 2020, S264033.) 

At the same time at least two appellate courts had reached the 

opposite conclusion. (See, e.g., People v. Smith (2020) 49 

Cal.App.5th 85, 93, review granted July 22, 2020, S262835; 

People v. Torres (2020) 46 Cal.App.5th 1168, 1180, review 

granted June 24, 2020, S262011, abrogated on other grounds 

in Lewis, supra, 11 Cal.5th at p. 963.) As the prosecution

points out, these cases represented significant new case law

interpreting the issue, which is now pending before the 

Supreme Court in People v. Strong (Dec. 18, 2020, C091162) 

(nonpub. opn.), review granted March 10, 2021, S266606. Had 

counsel been appointed it is possible that he or she could have 

argued that the second petition was not procedurally barred as

successive under principles of collateral estoppel. (See People 

v. Farfan (2021) 71 Cal.App.5th 942, 949-951.)

That said, we find the failure to appoint counsel and 

permit briefing to be harmless. When a court erroneously 

denies a petition without appointing counsel, the petitioner 

bears the burden to demonstrate resulting prejudice under the 

standard of People v. Watson (1956) 46 Cal.2d 818, 836, by 

showing a reasonable probability of a different result had the 

court not erred. (See Lewis, supra, 11 Cal.5th at p. 973.) 

Defendant has not and cannot demonstrate prejudice here. 

Error in summarily denying a petition is harmless if the record 

of conviction demonstrates ineligibility for relief as a matter of 

law. (People v. Daniel (2020) 57 Cal.App.5th 666, 675.) As we 

held in People v. Nunez (2020) 57 Cal.App.5th 78 (Nunez), 

review granted January 13, 2021, S265918, a true finding 

under section 190.2, subdivision (a)(17) renders a defendant 
10

ineligible for relief under section 1170.95 as a matter of law, 

and “[t]he Banks and Clark decisions provide no basis for 

challenging the jury’s factual finding that [defendant] either 

intended to kill or was a major participant . . . .” (Nunez, at 

pp. 92-97; accord, People v. Simmons (2021) 65 Cal.App.5th 

739, 746-750, review granted Sept. 1, 2021, S270048; People v. 

Jones (2020) 56 Cal.App.5th 474, 479-482, review granted 

Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th 

449, 457; People v. Gomez, supra, 52 Cal.App.5th at pp. 14-17, 

review granted; People v. Galvan, supra, 52 Cal.App.5th at 

pp. 1141-1143, review granted.)

Defendant disagrees with Nunez and the line of cases 

taking a similar position. Defendant cites decisions reaching 

the contrary conclusion and argues that they make a better 

argument. (See, e.g., People v. Arias (2021) 66 Cal.App.5th 

987, 1004, review granted Sept. 29, 2021, S270555; People v. 

Pineda (2021) 66 Cal.App.5th 792, 795-796, review granted 

Sept. 29, 2021, S270513; People v. Gonzalez (2021) 65 

Cal.App.5th 420, 425, review granted Aug. 18, 2021, S269792; 

People v. Secrease (2021) 63 Cal.App.5th 231, 236, 247, review 

granted June 30, 2021, S268862; People v. Harris (2021) 60 

Cal.App.5th 939, 956-958, review granted Apr. 28, 2021, 

S267802; People v. York (2020) 54 Cal.App.5th 250, 258-263, 

review granted Nov. 18, 2020, S264954; People v. Smith, supra, 

49 Cal.App.5th at pp. 93-94, review granted; People v. Law

(2020) 48 Cal.App.5th 811, 821-822, review granted July 8, 

2020, S262490; People v. Torres, supra, 46 Cal.App.5th at 

pp. 1179-1180, review granted.)

We see no need to repeat arguments that have been 

thoroughly addressed in the above cited opinions. We stand by 
11

our analysis in Nunez and disagree that the opinions stating 

the contrary view reflect a better argument. We thus hold that 

the trial court’s error in summarily denying defendant’s second 

opinion is harmless, as defendant is unable to make a prima 

facie case for relief under section 1170.95.

DISPOSITION

The order denying the section 1170.95 petition is 

affirmed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.