People v. Ibarra CA4/2 ( 2021 )

Filed 12/7/21 P. v. Ibarra 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E076985
v. (Super.Ct.No. RIF130045)
CRUZ A. IBARRA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Cynthia Grimm, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
FACTUAL AND PROCEDURAL HISTORY
On January 3, 2007, an information charged defendant and appellant Cruz A.
Ibarra with two counts of premeditated and deliberate attempted murder under Penal
Code1 sections 664 and 187 (counts 1 and 2), and two counts of assault with a firearm
under section 245, subdivision (a)(2) (counts 3 and 4). As to counts 1 and 2, the
information also alleged that defendant personally and intentionally discharged a firearm
under sections 12022.53, subdivision (c), and 1192.7, subdivision (c)(8). As to counts 3
and 4, the information further allege that defendant personally used a firearm, to wit, a
handgun, within the meaning of sections 12022.5, subdivision (a), and 1192.7,
subdivision (c)(8).
On April 30. 2008, a jury found defendant guilty of counts 1, 3, and 4. The jury
also found the firearm enhancements attached to those counts to be true. The jury found
defendant not guilty of count 2.
On June 27, 2008, the trial court sentenced defendant as follows: (1) seven years
to life on count 1, plus 20 years for the firearm enhancement; (2) three years for count 3,
plus four years for the firearm enhancement, stayed under section 654; and (3) three years
on count 4, plus four years for the enhancement, to run consecutive to count 1.
Defendant appealed and we affirmed the judgment in an unpublished opinion.
(People v. Ibarra (July 17, 2009, E046112) [nonpub.].)
1 All further statutory references are to the Penal Code unless otherwise specified.
2
On February 24, 2021, the California Department of Corrections and
Rehabilitation, Division of Adult Institutions Legal Processing Unit (CDCR) sent a letter
to the trial court noting the following errors in defendant’s sentencing order:
“The Determinate Abstract of Judgment reflects Count 1, PC664/187(a)* 1st
Attempted Murder, with the term of 7 years imposed. The Minute Order reflects Count 1
with the indeterminate term of 7 years to Life imposed. The sentence for this attempted
offense is an indeterminate term of Life with the Possibility of Parole (7 years to Life).
May the court please be advised indeterminate terms should be reflected on an
Indeterminate Abstract of Judgment.
“In addition, the Determinate Abstract of Judgment (Section 8) and the Minute
Order reflect the total term as a determinate term of 34 years imposed. The sum of all
consecutive terms is Life with the Possibility of Parole plus 27 years.”
On March 29, 2021, defendant wrote a letter to the trial court requesting that the
court do the following pursuant to the CDCR letter:
1. Postpone the resentencing hearing until July 2021 so defendant could
complete his college classes.
2. Allow defendant to appeal via video so his “college classes and self-help
groups are not interrupted,” citing his right to be present at the hearing under section 977,
subdivision (b).
3. Order “a new probation report in accordance with People v. Brady (1984)
162 Cal.App.3rd 1, 7 . . . as well as a Franklin hearing” under People v. Franklin (2016)
3
63 Cal.4th 261 [remand to give defendant an opportunity to make a sufficient record of
information relevant to the youth offender parole hearing].2
4. Follow the resentencing rule described in People v. Buycks (2018) 5 Cal.5th
857, 893-904.
5. Allow defendant “to take advantage of any ameliorative changes in the law
such as Senate Bill No. 620 (SB 620). As well as any other changes of law that may
apply.”
6. Consider defendant’s “post-sentencing conduct to determine whether to
strike the firearm enhancements” or impose “a lower term ‘in the interests of justice’”
and make “any adjustments to credits.”
The court held a hearing on April 22, 2021. At the hearing, when the court asked
whether the hearing should be continued so defendant could be present, defense counsel
stated: “Well, I don’t think it’s a resentencing issue.” The “problem with the case was”
that “everything was put on a determinate abstract.” Counsel went on to state that there
should have been both a determinate and indeterminate abstract of judgment. “The
sentence doesn’t change.” The court agreed and ordered “that two new abstracts of
judgment be prepared” to reflect the sentence that was originally imposed. Defendant did
not have a right to be present because it was “purely a correction of the abstract” and “no
resentencing” occurred.
On April 30, 2021, defendant filed a notice of appeal.
2 Defendant was 28 years old at the time of the underlying crimes.
4
DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and potential arguable issues, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
(1) “Did The Court Err By Construing The CDC[R] Letter As A Request To
Correct Clerical Errors?”
(2) “Did The Court Err By Not Considering Whether To Exercise Its
Discretion To Strike Or Dismiss The Firearm Use Enhancements?”
(3) “Did The Court Err By Not Continuing The Hearing So [Defendant] Could
Be Present?”
We offered defendant an opportunity to file a personal supplemental brief, and he
has not done so.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error. We are satisfied that defendant’s
attorney has fully complied with the responsibilities of counsel and no arguable issue
exists. (Id. at p. 126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.)
5
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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