Filed 8/7/15 P. v. Barbarin CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                       E061433

v.                                                                       (Super.Ct.No. RIF145530)

RICARDO ESTRADA BARBARIN,                                                OPINION

         Defendant and Appellant.




         APPEAL from the Superior Court of Riverside County. Michele D. Levine,

Judge. Affirmed.

         Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., Susan Miller,

and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.




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                                   I. INTRODUCTION

       This is the second appeal in this case by defendant Ricardo Estrada Barbarin. In

the first appeal, we affirmed defendant’s convictions for the special circumstance murder

of 13-year-old Anthony Sweat (Sweat) (count 1) and the premeditated attempted murders

of four others, Christopher S. (Christopher), Elliot Woods (Elliot), Taren Anderson

(Taren), and Tywan Woods (Tywan) (counts 2, 3, 4 & 5). (People v. Barbarin (Feb. 7,

2014, E055565 [nonpub. opn.] (Barbarin I).) The crimes occurred during a July 14,

2002, gang-related shooting in Riverside.1

       Defendant was originally sentenced to life without the possibility of parole for the

murder, plus 120 years to life for the four attempted murders, comprised of consecutive

terms of 30 years to life on each attempted murder count, plus 106 years. In the first

appeal, we remanded the matter for resentencing because the record affirmatively showed

the court mistakenly believed it did not have discretion to impose concurrent terms on

any of the attempted murder convictions. (§ 667, subd. (c)(6), (7); People v. Hendrix

(1997) 16 Cal.4th 508, 512-513 [consecutive terms are not mandatory on multiple current

felony convictions committed on same occasion or arising from same set of operative

facts].)


       1  The jury found a gang special circumstance allegation true on the murder count
(Pen. Code, § 190.2, subd. (a)(22)) (all further statutory references are to the Penal Code
unless otherwise indicated) and gang and firearm enhancement allegations true in each
count (§ 186.22, subd. (b), 12022.53, subds. (c), (d), (e)). Defendant admitted one prior
strike/prior serious felony conviction (§ 667, subds. (a)-(i)) and one prison prior (§ 667.5,
subd. (b)).

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       On remand, the court imposed consecutive terms on counts 2 and 3 and concurrent

terms on counts 4 and 5. On this appeal, defendant challenges the sufficiency of the

evidence supporting the consecutive term on count 3, but not on count 2. He claims the

decision to impose a consecutive term for the attempted murder of Elliot in count 3 was

based on “an unsupported . . . factual finding,” namely, that “there was a separate course

of action with respect to” the shooting at Elliot in count 3. We affirm. We conclude

substantial evidence supports the court’s sentencing determinations and the court acted

within its discretion in imposing the two consecutive terms.

                             II. FACTUAL BACKGROUND

A. The Shooting

       The facts of the shooting are described in detail in our opinion in the first appeal.

(Barbarin I, supra, E055565 [at pp. 3-13].) In sum, the evidence showed that, around

11:15 p.m. on July 14, 2002, defendant and another Hispanic male, both armed with

handguns and wearing ski masks, approached a group of young Blacks who were

socializing on two adjoining front porches, facing University Avenue, and fired multiple

shots at the group. (Id. [at pp. 3-6].) The group included the murder victim, 13-year-old

Sweat, and the four attempted murder victims: Sweat’s 17-year-old sister Taren, 15-year-

old Christopher S., 18-year-old Elliot, and Tywan (age unknown). (Id. [at pp. 3-4].) The

shooters approached the group from a rear alleyway. (Id. [at p. 5].)

       One of the shooters fired a handgun six inches in front of Elliot’s face, then ran

past Elliot, bumping into him. (Barbarin I, supra, E055565 [at p. 6].) After the shooting


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began, the group scattered and more shots were fired. Sweat and Taren ran to the

alleyway behind the houses, and the other members of the group ran in different

directions. (Id. [at pp. 5-6].) After Taren and Sweat ran to the alleyway, Taren ran

toward University Avenue and flagged down a patrol officer. Sweat was found in the

alleyway, lying face down with three gunshot wounds. He died from his injuries. (Id. [at

p. 6].) None of the four attempted murder victims were shot. (Id. [at pp. 3-13].)

B. The Resentencing Hearing

       At resentencing, the court acknowledged it had discretion to impose concurrent

terms on the four attempted murder counts because they were committed on the same

occasion and arose from the same set of operative facts. (§ 667, subds. (c)(6), (7); People

v. Hendrix, supra, 16 Cal.4th at pp. 512-523.) Still, the court imposed consecutive terms

on two of the attempted murder counts, after finding there were “two instances that

should be punished separately” as consecutive terms: (1) the shot that was fired in front

of Elliot, apparently intending to kill him, and (2) the shots that were fired at or “over the

heads” of the members of the group as they fled the shooting. After noting it did not

have to determine which two of the four attempted murder counts should receive the

consecutive terms, the court imposed consecutive terms on counts 2 and 3, for the

attempted murders of Taren and Elliot, respectively. Concurrent terms were imposed on

counts 4 and 5 for the attempted murders of Christopher S. and Tywan, respectively.




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                                      III. DISCUSSION

       A trial court has discretion to impose indeterminate terms consecutively (People v.

Bradford (1976) 17 Cal.3d 8, 20) and our standard of review is deferential: “‘[I]n the

absence of a clear showing that [the trial court’s] decision was arbitrary or irrational, a

trial court should be presumed to have acted to achieve legitimate objectives and,

accordingly, its discretionary determinations ought not to be set aside on review.

[Citations.]’ [Citation.]” (People v. Arviso (1988) 201 Cal.App.3d 1055, 1059; People v.

Carmony (2004) 33 Cal.4th 367, 377.)

       California Rules of Court, rule 4.4252 does not apply where the sentences at issue

are all indeterminate; it only applies to determinate sentences. (See rule 4.403; § 1170.)

But “[w]here the Rules of Court permit a trial judge to rely on certain factors when

imposing consecutive determinate sentences, we find no abuse of discretion where the

judge relies on those factors, by analogy, in imposing consecutive indeterminate terms.”

(People v. Arviso, supra, 201 Cal.App.3d at p. 1059.)

       Here, in running the indeterminate terms on counts 2 and 3 consecutive to count 1,

the trial court implicitly relied on rule 4.425(a)(2), which allows consecutive terms to be

imposed where “[t]he crimes involved separate acts of violence or threats of violence

. . . .” The court effectively found that, during the shooting at the group on the porches,

separate acts of violence were committed when (1) a shot was fired in front of Elliot’s




       2   All further references to rules are to the California Rules of Court.

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face, and this shot was apparently intended to kill Elliot, and (2) additional shots were

fired at or “over the heads” of the group as they fled.

         Defendant claims insufficient evidence supports the finding that the shot fired in

front of Elliot’s face was “intended to kill” Elliot, independently of the shooters’

ostensible intent to kill everyone in the “kill zone,” including Elliot and the other four

victims. (See People v. Vang (2001) 87 Cal.App.4th 554, 563-565 [gang-related shooting

into two houses showed shooters concurrently intended to kill everyone in the two

houses].) Thus, defendant claims, the consecutive term imposed on count 3 must be

modified to run concurrent to the term on count 1.

         Defendant points out that Elliot “gave the following testimony regarding the

shooting. He was sitting in a chair, when he heard a gate between the two residences

close. (3 R.T. 469-470.) He looked back and saw a gun pointed about six inches from his

right temple. (3 R.T. 470-471.) He went blank and heard someone mutter something and

then, the gun fired in front of his face, aiming past his face. (3 R.T. 471.) He saw muzzle

flash, and by the second shot, everyone ran. He was just standing there and was bumped

as the shooter ran by him. (3 R.T. 472, 482.) By the time a second shot was fired, he ran

to the dirt field, as did Tywan and [Christopher S.]. (1 R.T. 70; 2 R.T. 374; 3 R.T. 472,

482.)”

         At resentencing, the trial court acknowledged defendant’s view of the evidence—

that the shooters had no intent to kill Elliot independently of their concurrent intent to kill

all of the victims in the kill zone, but the court reasonably rejected this view of the


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evidence. As the court indicated, the evidence supported a reasonable inference that the

shooters engaged in a separate act of violence (rule 4.425(a)(2)) when they initially tried

to shoot and intended to kill Elliot—before they began shooting at the group and before

they continued shooting at the group as the members of the group fled. Thus, the court

did not abuse its discretion in imposing either of the two consecutive terms, including the

consecutive term on count 3.

       Further, and as the People point out, the court could have imposed consecutive

terms on each attempted murder count because each count involved a separate victim—

even if the crimes involved only a single act of violence. (People v. Calhoun (2007) 40

Cal.4th 398, 405-408.) Thus here, no miscarriage of justice has been shown. (Cal.

Const., art. XI, § 13; People v. Arviso, supra, 201 Cal.App.3d at p. 1059 [reversal for

resentencing unwarranted unless the record shows “‘“‘a manifest miscarriage of

justice’”’” occurred].)

                                    IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                                KING
                                                                                              J.

We concur:

McKINSTER
                 Acting P. J.

MILLER
                           J.
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