People v. Barkacs CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE234361
- Trial judge
- Daniel G. Lamborn
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, William S. Dato
Analysis
The trial court denied Barkacs's petition for resentencing under Penal Code section 1170.95, finding he was not eligible for relief. The Court of Appeal affirmed the denial after a Wende/Anders review found no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“Whether the court erred in finding Barkacs was not eligible for relief under section 1170.95.” | unclear | not reached | unsure The appellate court conducted a Wende/Anders review of the record and found no arguable issues for reversal, thereby affirming the trial court's order without explicitly stating a standard of review or analyzing the merits of the eligibility determination. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for error when no arguable issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying potential issues and the court to review the record independently when counsel finds no arguable issues.
The appellate opinion: sound with gaps — The opinion is procedurally sound in following Wende and Anders protocols for appointed counsel. However, it fails to provide any substantive legal analysis or reasoning for why the trial court's denial of the section 1170.95 petition was correct, relying solely on the absence of arguable issues identified by counsel.
How this analysis was made · dispute it
unusual dispositionThe trial court denied James Barkacs's Penal Code section 1170.95 petition for resentencing after appointing counsel, receiving briefing, and reviewing the record of conviction and the prior appellate opinion, which showed he was the sole perpetrator and actual killer in a 2005 first degree murder with a carjacking special circumstance. On appeal, counsel filed a Wende brief, Barkacs filed nothing, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition on the ground that Barkacs was ineligible for relief because he was the sole perpetrator and actual killer“Barkacs was the sole perpetrator of the crime, thus he was the actual killer of the victim.” | unclear | correct | agree with court Section 1170.95 relief is unavailable to a defendant who was the actual killer, since the 2019 amendments to sections 188 and 189 still permit murder liability for the person who actually kills. The opinion states the record of conviction and prior opinion show Barkacs acted alone and caused the death, so the trial court's ineligibility finding is consistent with the statute; the court appointed counsel and took briefing before ruling, so the procedure used was not obviously deficient under the law as it stood in April 2021. The court did not state a standard of review because it conducted Wende/Anders independent review. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the appellate court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous should file a brief referring to anything in the record that might arguably support the appeal.
The appellate opinion: sound with gaps — The opinion reaches a defensible result because an actual killer is categorically outside section 1170.95, and the court performed the independent review it said it would under Wende and Anders. It does not, however, discuss whether Wende review is even required in an appeal from a postconviction order (a question addressed in published Court of Appeal decisions in 2020) and gives only a conclusory explanation of why the ineligibility finding was proper.
Opinion
Filed 4/9/21 P. v. Barkacs CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078073
Plaintiff and Respondent, v. (Super. Ct. No. SCE234361)
JAMES ROBERT BARKACS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Affirmed. Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2005, a jury convicted James Robert Barkacs of first degree murder (Pen. Code,1 § 187, subd. (a)), carjacking (§ 215, subd. (a)), and arson (§ 451, subd. (d)). The jury also found true a special circumstance that the murder 1 All further statutory references are to the Penal Code. was committed in the perpetration of carjacking (§ 190.2, subd. (17)). Barkacs was sentenced to life without parole plus three years. Barkacs appealed and this court affirmed his conviction in an unpublished opinion. (People v. Barkacs (Nov. 30, 2006, D046201) [nonpub. opn.].) In 2019, Barkacs filed a pro. per. petition for resentencing under section 1170.95. The court appointed counsel and received briefing from the parties. After reviewing the record of conviction and this court’s prior opinion, the trial court denied the petition by written order. Barkacs filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Barkacs the opportunity to file his own brief on appeal. He has not responded. STATEMENT OF FACTS The facts of the offense are fully set forth in our prior opinion. We will not repeat them here. In summary, however, the facts show that Barkacs stole a car from a motel parking lot. The owner saw the theft taking place and tried to stop it. He jumped on the car as Barkacs drove off. Barkacs swerved the car and the victim fell off, striking his head on the pavement. He ultimately died of the injuries. Barkacs was the sole perpetrator of the crime, thus he was the actual killer of the victim. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review of the record, and in compliance with Anders v. California (1967) 386 U.S. 738 2 (Anders), counsel has identified the following possible issue that was considered in evaluating the potential merits of this appeal: Whether the court erred in finding Barkacs was not eligible for relief under section 1170.95. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Barkacs on this appeal. DISPOSITION The order denying appellant’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
Cites, in this corpus
- People v. Wende Crim. 20851 · 1979-10-12