People v. Barber CA4/3

Opinion

Filed 8/26/26 P. v. Barber CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G065547 v. (Super. Ct. No. 08WF0314)

JOVAN DEONTE BARBER, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

* * * A jury convicted defendant Jovan Deonte Barber of attempted murder. He filed a resentencing petition under Penal Code section 1172.6, which the trial court denied at the prima facie stage.1 On appeal, his appointed counsel filed a no-issue brief, requesting that we independently review the record for error under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). We have exercised our discretion per Delgadillo but have found no arguable issues. Thus, we affirm the court’s postjudgment order denying the section 1172.6 petition. FACTS AND PROCEDURAL HISTORY I. SECTION 1172.6 To prove attempted murder, the prosecution must establish that the defendant acted with specific intent to kill. (People v. Canizales (2019) 7 Cal.5th 591, 602.) Prior to 2019, however, aiders and abettors could be found guilty of attempted murder under a natural and probable consequences theory even if they personally lacked the intent to kill. (People v. Sanchez (2022) 75 Cal.App.5th 191, 193–194, 196.) The direct perpetrator’s “‘intent to kill’ was imputed” onto the aider and abettor if the “attempted murder was a natural and probable consequence of [the aider and abettor’s] intent to participate in the target offense.” (People v. Montes (2021) 71 Cal.App.5th 1001, 1007–1008.) In 2019, the Legislature eliminated the natural and probable consequence theory of murder by passing Senate Bill No. 1437 (SB 1437). (People v. Reyes (2023) 14 Cal.5th 981, 984.) SB 1437 amended “‘the natural and probable consequences doctrine, as it relates to murder, to ensure that 1 Undesignated statutory references are to the Penal Code.

2 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 959.) SB 1437 also “added section 1170.95 [(now section 1172.6)], which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959.) The Legislature later clarified that persons convicted of attempted murder under a natural and probable consequences theory could also seek relief under section 1172.6. (People v. Whitson (2022) 79 Cal.App.5th 22, 30.) Persons convicted of murder or attempted murder prior to SB 1437’s amendments may seek relief by filing a resentencing petition under section 1172.6. (People v. Strong (2022) 13 Cal.5th 698, 707–708.) The trial court reviews such petitions to determine whether the petitioner has made a prima facie case for relief. “If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.” (Id. at p. 708.) On an appeal from a denial of a section 1172.6 petition, if appointed counsel finds no arguable issues to pursue, (1) counsel should file a brief stating that determination with a factual summary of the petition’s denial, and (2) the court should notify the defendant of his or her right to file a supplemental brief and that the appeal may be dismissed if no such brief is filed within 30 days. (Delgadillo, supra, 14 Cal.5th at pp. 231–232.) If the defendant files a supplemental brief, the appellate court must evaluate the arguments made therein and issue a written opinion. (Id. at p. 232.) If no 3 supplemental brief is filed, the appellate court has discretion to dismiss the appeal or review the record independently. (Ibid.) II. BARBER’S ATTEMPTED MURDER CONVICTION In 2009, a jury found Barber guilty of the attempted murder of S.C. (the victim). (Former §§ 664, 187, subd. (a).) It found true that Barber committed this offense for the benefit of a criminal street gang. (Former § 186.22, subd. (b)(1).) It also found true that in committing the attempted murder, Barber intentionally and personally discharged a firearm, which caused great bodily injury to the victim. (Former § 12022.53 subd. (d).) The court sentenced Barber to the upper term of nine years for the attempted murder count plus consecutive terms of 10 years for the gang enhancement and 25 years to life for the firearm enhancement.2 Barber filed a resentencing petition under section 1172.6 in February 2025 (the petition). The trial court denied the petition following a prima facie hearing. Its statement of decision explained, “[t]he record of conviction conclusively establishes that [Barber] was convicted as either the actual attempted killer or direct aider and abettor, both of which remain valid theories under current law.” Among other things, “the jury did not receive a natural and probable consequences instruction.” Barber appealed the petition’s denial. His counsel then filed a no- issue brief requesting an independent review of the record under Delgadillo. In December 2025, this court issued an order granting Barber 30 days to file 2 Barber was also found guilty of assault with a semi-automatic firearm (former § 245, subd. (b)), carrying a loaded firearm in public (former § 12031, subd. (a)), and street terrorism (former § 186.22, subd. (a)). The court stayed the sentences for these counts under former section 654.

4 a supplemental brief and stating that his appeal could be dismissed if he failed to do so. Barber did not file anything in response, but we have exercised our discretion to review the record in the interests of justice. DISCUSSION Based on our review, we agree with Barber’s counsel that there are no arguable issues. As the trial court noted, the jury instructions did not mention the natural and probable consequences theory. Nor was the jury instructed on any other theory that would have allowed it to impute an intent to kill on Barber based on his participation in another offense. Under the instructions given, the jury had to find that Barber “intended to kill [the victim]” to convict him of attempted murder. The jury also expressly found that Barber “intentionally and personally discharged a firearm proximately causing great bodily injury to [the victim],” during the commission of the attempted murder. This finding reiterates that the jury did not convict Barber of murder based on his participation in another offense. Given the record, Barber is ineligible for relief under section 1172.6. DISPOSITION The postjudgment order denying the petition is affirmed.

MOORE, J.

WE CONCUR:

MOTOIKE, P. J.

DELANEY, J.