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, Buchanan
Analysis
The trial court denied Barkacs’s second petition for resentencing under Penal Code section 1172.6, finding he failed to establish a prima facie case because he was the sole perpetrator and actual killer. The Court of Appeal affirmed the denial after an independent review of the record pursuant to a Wende/Anders brief.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of second petition for resentencing under Penal Code section 1172.6“In both cases, the record showed Barkacs was the sole perpetrator of the offense and was the actual killer. Thus, he failed to establish a prima facie case for relief under the statute.” | de novo | correct | agree with court The appellate court affirmed the trial court's denial, agreeing that the record established Barkacs was the sole perpetrator and actual killer, which precludes relief under the statute. The court found no arguable issues for reversal upon independent review. |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to file a brief identifying arguable issues and request leave to withdraw when an appeal appears frivolous.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to independently review the record for error when counsel files a Wende brief.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for arguable error. However, it is a summary disposition that relies entirely on the prior unpublished opinion's factual findings without detailed legal analysis of the prima facie standard.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Barkacs's second Penal Code section 1172.6 resentencing petition at the prima facie stage because the record showed he was the sole perpetrator and actual killer, and because the petition was successive. On appeal, appointed counsel filed a Wende/Anders brief, the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of second section 1172.6 petition for failure to state a prima facie case for relief, on the ground the record of conviction showed Barkacs was the sole perpetrator and actual killer“In both cases, the record showed Barkacs was the sole perpetrator of the offense and was the actual killer. Thus, he failed to establish a prima facie case for relief under the statute.” | unclear | correct | agree with court An actual killer who was the sole perpetrator was convicted on a theory that remains valid after Senate Bills 1437 and 775 and is categorically ineligible for section 1172.6 relief; the jury's carjacking-murder special circumstance finding and the prior affirmance of the first petition's denial confirm this. The opinion states no standard of review and cites no section 1172.6 authority (e.g., People v. Lewis), but the result follows from the stated record. |
Denial of the petition on the alternative ground that it was a second petition seeking the same relief for the same sentence“The trial court, again, denied the petition for failure to state a prima facie case and because it was a second petition for the same relief for the same sentence.” | unclear | not reached | unsure The Court of Appeal did not separately analyze whether a successive petition is barred, which some courts have held is not automatically so after intervening changes in law (e.g., Senate Bill 775, effective January 2022). Because the independent ground of actual-killer ineligibility fully supports the denial, any issue with the successive-petition rationale would not affect the result, but the opinion does not say so. |
Authorities
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds no meritorious issues may so advise the court and identify anything in the record that might arguably support the appeal, after which the court independently reviews the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the section 1172.6 prima facie stage the trial court may rely on the record of conviction to deny a petition only where the record establishes ineligibility as a matter of law, and the prima facie determination is reviewed de novo; the opinion affirms the prima facie denial without citing this controlling framework.
The appellate opinion: sound with gaps — The affirmance is correct on its face because a sole-perpetrator actual killer is ineligible for section 1172.6 relief as a matter of law, and the court properly conducted a Wende/Anders review as the Fourth District had held it may do in postconviction appeals. The opinion, however, cites no section 1172.6 authority such as People v. Lewis, states no standard of review, and does not address the trial court's alternative successive-petition rationale, which other courts had questioned after Senate Bill 775.
Opinion
Filed 7/22/22 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, D080095
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. This is an appeal from the denial of Barkacs’s second petition for resentencing under Penal Code section 1172.6.1 In both cases, the record showed Barkacs was the sole perpetrator of the offense and was the actual killer. Thus, he failed to establish a prima facie case for relief under the statute. PROCEDURAL BACKGROUND In 2005, a jury convicted Barkacs of first degree murder (Pen. Code,2 §§ 187, subd. (a)), carjacking (§ 215, subd. (a)), and arson (§ 451, subd. (d)). The jury also found true the special circumstance of murder during the commission of carjacking (§ 190.2, subd.(a)(17)). Barkacs was sentenced to life without parole, plus three years in prison. Barkacs appealed and this court affirmed in an unpublished opinion. (People v. Barkacs (Nov. 30, 2006, D046201).) In January 2019, Barkacs filed his first petition for resentencing under section 1172.6. The petition was denied for failure to state a prima facie case for relief. Barkacs appealed and this court affirmed the denial in an unpublished opinion. (People v. Barkacs (Apr. 9, 2021, D078073).) In January 2022, Barkacs filed the current, second, petition for resentencing. The trial court, again, denied the petition for failure to state a prima facie case and because it was a second petition for the same relief for the same sentence.
1 Barkacs brought his motion under former Penal Code section 1170.95, which was renumbered as Penal Code section 1172.6 without substantive change on June 30, 2022. (See Stats. 2022, ch. 58 (Assem. Bill 200), § 10, eff. June 30, 2022.) As such, we refer to the subject statute by its current number throughout this opinion.
2 All further statutory references are to the Penal Code. 2 Barkacs again filed a timely notice of appeal. DISCUSSION As we have noted counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified an issue that was considered in evaluating the potential merits of this appeal: Whether the trial court erred in concluding Barkacs was ineligible for resentencing under section 1172.6. 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 Barkacs’s second petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.