People v. Ibarra CA2/3 ( 2023 )

Filed 8/15/23 P. v. Ibarra CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B320679
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA048625-02
v.
ARMANDO IBARRA,
Defendant and Appellant.
PURPORTED APPEAL from an action or inaction of the
Superior Court of Los Angeles County, Juan Carlos Dominguez,
Judge. Dismissed.
Gary V. Crooks, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Steven E. Mercer, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant and appellant Armando Ibarra purports to
appeal from the trial court’s response to a letter of inquiry from
the California Department of Corrections and Rehabilitation
(CDCR). Because the court did not issue an order—much less
an appealable order—we dismiss the appeal.
BACKGROUND
As the facts of Ibarra’s crimes are not necessary to our
analysis, we summarize them only briefly.1 On December 15,
2000, Ibarra and his fellow gang member Victor Castaneda went
to the home of Ruby H., the mother of Castaneda’s baby. Ruby
and Castaneda had broken up some months earlier. In addition
to Ruby, four other people were in the home. Ibarra and
Castaneda walked up to the house with rifles and started
shooting. Two of the occupants were hit by bullets and a third
person was injured by “flying glass and chips of ceramic tile,
caused by bullets crashing into the bathroom.” Two firebombs
or Molotov cocktails also were thrown at the house.
A jury convicted Ibarra of five counts of attempted willful,
deliberate, and premeditated murder, arson of an inhabited
structure, and shooting at an inhabited dwelling. The jury
found true gang allegations under Penal Code section 186.22,
subdivision (b)(1),2 as well as allegations that a principal used
a firearm, discharged a firearm, and—as to three victims—
discharged a firearm causing great bodily injury.
1 We take the facts from our opinion in Ibarra’s direct
appeal, People v. Castaneda et al. (May 14, 2004, B155465)
[nonpub. opn.] (Ibarra I).
2 References to statutes are to the Penal Code.
2
At a bench trial, the court found Ibarra had suffered a prior
strike conviction for attempted murder. The court sentenced
Ibarra to five consecutive terms of life in the state prison. The
court doubled the minimum term of 15 years for the attempted
murders to 30 years each because of Ibarra’s strike prior. The
court added terms of 25 years to life for the two counts in which
the jury had found true the allegation that a principal discharged
a firearm causing great bodily injury to the victims. The court
added terms of 20 years for the three counts in which the jury
had found true the allegation that a principal discharged a
firearm. The court also imposed determinate terms of 10 years
on each of the five attempted murder counts for the gang
enhancements. The court sentenced Ibarra to a determinate
term of 10 years for the arson and stayed the sentence for
shooting at an inhabited dwelling.
A different panel of this court affirmed the judgment but
ordered it modified to correct the sentence. The appellate court
rejected Ibarra’s contention that the sentences on the attempted
murder counts should have been seven years to life. The court
explained the true finding on the gang enhancement increased
the minimum parole eligibility term to 15 years. But, the
court continued, the trial court erred in imposing an additional
10 years for the gang enhancement on those life counts. Because
the court sentenced Ibarra to life terms on the attempted murder
counts, “ ‘then the 15-year minimum parole eligibility applies
rather than a determinate, consecutive enhancement[ ].’ ”
(Ibarra I.)
When the trial court received the remittitur, it ordered
the abstract of judgment corrected to vacate the 10-year terms
for the gang enhancements. The court stated, “Remainder of
3
sentence to remain in full force and effect.” The court ordered
an amended abstract of judgment reflecting that modification be
forwarded to the CDCR. The amended and corrected abstract
of judgment is dated September 24, 2004.3
Some 17 years later, on February 1, 2021, CDCR sent
a letter to the trial judge, who had retired. It’s unclear who—
if anyone—at the court received the letter. In August 2021,
Ibarra apparently contacted the court inquiring about the “status
of his case.” A minute order dated August 23, 2021, states the
court’s file did not contain a February 1, 2021 communication
from the CDCR and asked Ibarra to provide a copy. In a
handwritten note dated September 2, 2021, Ibarra said he
was enclosing a copy.
The CDCR letter begins, “A review of the documents
delivered with [Ibarra] indicates the Abstract of Judgment and/or
Minute Order may be in error, or incomplete, for the following
reasons.” The letter continues,
“The Indeterminate Amended Abstract of
Judgment reflects Counts 6, 7, 8, 9, and 10,
as PC 664/187(A) Attempted Murder—1st
Degree [sic],4 with 30 years to Life doubled
3 The Attorney General gives two dates for the amended
abstract: September 14, 2014 and September 24, 2014. The
Attorney General is mistaken.
4 While the original and amended abstracts do indeed refer
to the attempted murder counts as “1st degree,” there is no such
crime as “first degree attempted murder.” Rather, a finding that
the attempted murder was willful, deliberate, and premeditated
results in a life rather than a determinate sentence. (People v.
4
pursuant to PC 667(b)-(i) or 1170.12. The
Court of Appeal (Page 37) states[,] ‘However,
the gang enhancement statute increases that
minimum parole eligibility term to 15 years.
Section 186.22, subdivision (b)(5), provides
that if the underlying felony is punishable by
life imprisonment, the defendant shall not be
paroled until a minimum of 15 years have been
served.’ As the term in Counts 6, 7, 8, 9, and
10, coincides with being sentenced pursuant
to PC 186.22(b)(5) which is punishable in the
state prison for life shall not be paroled until
a minimum of 15 calendar years have been
served, we have recorded Counts 6, 7, 8, 9,
and 10 as PC 664/187(a) sentenced pursuant
to PC 186.22(b)(5) to 30 years to Life doubled
pursuant to PC 667(b)-(i) or 1170.12. If this
is not in accordance with the Court’s intent,
please advise this office.”
On March 14, 2022, the trial court filed a fill-in-the-blanks
form stating it had “received, read and considered” Ibarra’s letter
of September 2, 2021. The form stated, “Defendant is requesting:
correction of AOJ.” The court checked a box stating, “Defendant’s
request is GRANTED.” Under “Further instructions,” the
court wrote, “Please send [defendant] and CDCR a copy of
corrected AOJ dated 9-27 [sic]-04.” A minute order also dated
March 14, 2022 stated the same thing (with the correct date
Lee (2003) 31 Cal.4th 613, 616; People v. Arias (2010) 182
Cal.App.4th 1009, 1012, fn. 2, 1017.)
5
of September 24, 2004 for the amended abstract of judgment).
The record on appeal does not contain any other response to
the CDCR from the trial court.
On May 12, 2022, Ibarra filed a notice of appeal. Next to
“DATE of the order or judgment” Ibarra wrote, “March 14, 2022.”
Ibarra checked box 2.b., “Other,” adding “Resentencing Hearing
Affecting Substantial Rights.”
DISCUSSION
Ibarra contends the trial court “ ‘granted’ [his] request
to correct the abstract by doing nothing to correct the abstract.”
Ibarra says, “From this record it is not possible to ascertain
the legal basis of the 30-year minimum number of years before
parole that was indicated on both the original 2001 Abstract
of Judgment and the amended 2004 Abstract of Judgment.”
Ibarra lists various statutes our Legislature has passed as well
as propositions voters have approved in recent years. He asserts,
“In view of this policy sea-change in California, the trial court’s
cursory, unreported consideration of the instant matter, there
is no way to know if the court properly analyzed what would
best serve the interests of justice in this case.” Ibarra complains
he “was given no opportunity [to] have counsel, or to be present,
or to have notice of when his matter would be considered by
the court.” These contentions are meritless.
We acknowledge the CDCR’s letter is not a model of clarity.
It is somewhat difficult to discern what exactly the CDCR is
asking the trial court to confirm. It seems the CDCR is saying:
“We see the trial court sentenced Ibarra to 30 years to life on
each of the attempted murder counts. We note the appellate
court confirmed the minimum parole eligibility date is 15 years
6
because of the gang allegation,5 doubled because of the strike
prior, making that eligibility date 30 years. If that’s not what
you had in mind, judge, please let us know.”
Contrary to Ibarra’s contention, there is no mystery as
to the “ ‘legal basis’ ” for the 30-year minimum parole eligibility
date. The legal basis is plainly set forth in this division’s
May 2004 opinion on direct appeal. The only change the
appellate court ordered the trial court to make in Ibarra’s
sentence was to vacate the determinate 10-year terms added to
the five attempted murder counts for the gang enhancements.
The trial court followed those instructions and corrected the
abstract as of September 24, 2004.
It appears the trial court may have interpreted the CDCR’s
letter as asking for a copy of the September 2004 corrected
abstract. In “granting” Ibarra’s request, the court seems to have
meant that the court would send the corrected 2004 abstract
to the CDCR and to Ibarra. Ibarra has not identified any error
in the corrected abstract—much less in the sentence itself—
now that the 10-year terms for the gang enhancements have
been vacated, and we discern none.
The Attorney General cites People v. Magana (2021) 63
Cal.App.5th 1120 (Magana). In that case, the CDCR “notified
the trial court of potential errors” in the abstracts of judgment
for defendant Magana. (Id. at p. 1122.) On direct appeal, the
court had ordered two of four prior prison term enhancements
stricken. On remand, however, both the determinate and the
5 As we have said, the appellate court rejected Ibarra’s
contention that the minimum parole eligibility date on those
counts should have been seven rather than 15 years. (Ibarra I.)
7
indeterminate abstracts of judgment listed two prior prison
terms, for a total of four. (Id. at pp. 1122-1123.)
The court “set the matter on calendar” and Magana filed
a motion for a “ ‘sentencing hearing,’ ” contending the “hearing”
was for the recall of his sentence and resentencing under
section 1170, subdivision (d).6 (Magana, supra, 63 Cal.App.5th
at p. 1123.) The prosecution opposed the motion, contending
the CDCR letter was “ ‘merely an invitation to correct a technical
error on the abstract.’ ” (Id. at pp. 1123-1124.) The court denied
Magana’s request and the court of appeal affirmed, stating,
“[B]ecause the CDCR did not recommend a recall, the trial court
6 Former section 1170, subdivision (d)(1) authorized a trial
court, at any time upon the recommendation of the Secretary
of the CDCR, to recall a defendant’s sentence and resentence
the defendant. Assembly Bill No. 1540 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 719, §§ 1-7), effective January 1, 2022, moved
the recall and resentencing provisions of former section 1170,
subdivision (d)(1) to new section 1170.03. (People v. McMurray
(2022) 76 Cal.App.5th 1035, 1038, 1040.) Effective June 30, 2022,
the Legislature renumbered section 1170.03 to section 1172.1.
(People v. Braggs (2022) 85 Cal.App.5th 809, 818.) Section 1172.1
provides that, if the resentencing request is from the Secretary
of the CDCR, there shall be a presumption favoring recall
and resentencing that may be overcome only if a court finds
the defendant is an unreasonable risk of danger to public safety.
(Braggs, at p. 818.) The statute incorporates the definition
of “unreasonable risk of danger to public safety” set forth in
section 1170.18, subdivision (c) as an unreasonable risk the
defendant will commit a new offense contained within a list of
eight particularly violent or serious felonies known as “ ‘super
strikes.’ ” (§ 1172.1, subd. (b)(2); Braggs, at p. 818; see § 667,
subd. (e)(2)(C)(iv); People v. Valencia (2017) 3 Cal.5th 347, 351.)
8
lacked authority to recall defendant’s sentence.” (Id. at pp. 1124-
1125.) As the court had no jurisdiction to grant Magana’s motion
for a resentencing hearing, the appellate court dismissed the
appeal. (Id. at p. 1128.)7
The result here must be the same. Ibarra argues Magana
is distinguishable because, there, the court “put the matter on
calendar and entertained briefing by defense counsel.” Nowhere
in Magana is there any reference to an appointment of counsel
for Magana. The opinion does not even say Magana had counsel
—only that he “filed a brief” and “a motion.” (Magana, supra,
63 Cal.App.5th at p. 1123.) That the court calendared the matter
and accepted briefs does not mean those procedures are required,
especially when the CDCR merely sends a letter setting forth
its understanding of the abstract or minute order and asking
the court to “please advise this office” “[i]f this is not in
accordance with the Court’s intent.”
Ibarra cites two cases that involved a recommendation
under former section 1170, subdivision (d) by the Secretary of
the CDCR that the trial court recall the defendant’s sentence and
resentence him. Here, there was no such recommendation by
the Secretary. Those cases thus have no application to this case.
In sum, neither the CDCR nor Ibarra has identified
any error in Ibarra’s sentence, modified on remand to strike
the determinate terms for the gang enhancements. (See People
v. Fiu (2008) 165 Cal.App.4th 360, 367, 390 [defendant convicted
7 Cf. People v. King (2022) 77 Cal.App.5th 629, 633 [trial
court had no jurisdiction to entertain defendant’s motion, filed
more than 30 years after he began serving his sentence, to vacate
erroneous sentence; appellate court therefore had no jurisdiction
to entertain his appeal].
9
of second degree murder with strike prior; error for trial court
to impose 10 years for gang enhancement; “[i]nstead, the court
should have imposed a limitation upon defendant’s minimum
parole eligibility of 15 years, pursuant to section 186.22,
subdivision (b)(5), doubled to 30 years due to his prior strike
conviction”].)8 The trial court had no jurisdiction to grant Ibarra
resentencing under former section 1170, subdivision (d), or
otherwise. Accordingly, that the trial court did not specifically
reply to the CDCR’s letter did not affect Ibarra’s substantial
rights and it was not an appealable order. (Magana, supra,
63 Cal.App.5th at p. 1128; § 1237, subd. (b).) We therefore
dismiss Ibarra’s appeal.
8 Ibarra cites People v. Williams (2014) 227 Cal.App.4th 733.
Ibarra’s argument is unclear: he seems to contend Williams
stands for the proposition that the court need not double
the 15-year term notwithstanding the strike prior. Ibarra is
mistaken. First, the Williams case never addressed that issue,
or even identified it as an issue. Second, Williams was convicted
of crimes (robbery, kidnapping, and assault by means of force
likely to cause great bodily injury) that—unlike the offenses here
—are not life crimes. Williams received life sentences in that
case because the convictions constituted third strikes. (Id. at
p. 736.) To double the minimum parole eligibility dates based
on two or more prior strikes—as opposed to one prior strike,
as here—would be impermissible double counting.
10
DISPOSITION
Armando Ibarra’s purported appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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