People v. Ibarra
| Docket Number | F084503 |
| Decision Date | 26 November 2024 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. VICENTE IBARRA, Defendant and Appellant. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No BF162787C Kenneth C. Twisselman II, Judge.
Eric Weaver, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.
Over a period of three years, members of the Varrio Wasco Rifas (VWR) gang repeatedly targeted Tony V.[1] for dropping out of the gang. On the night of December 31, 2015, during one of these targeted attacks defendant Vicente Ibarra and three other VWR gang members drove up to Tony's house and shot at the house while his family was having a barbeque on the front porch. Ismael Ramirez was shot and killed.
During the non-gang substantive offense trial (Phase I), a jury convicted Ibarra of the premediated first degree murder of Ramirez (Pen. Code, §§ 187, subd. (a), 189, count 1).[2] Thereafter, Ibarra waived his right to a bifurcated gang trial and pleaded no contest to the substantive gang offense (§ 186.22, subd. (a), count 19) (substantive gang offense), and admitted the gang-murder special circumstance allegation (§ 190.2, subd. (a)(22)) (gang-murder special circumstance), as alleged in count 1 and the gang enhancements (§ 186.22, subd. (b)(1)) (gang enhancements).[3] Subsequently, the trial court imposed a total aggregate indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 51 years, 6 months.
On appeal, Ibarra contends the trial court prejudicially erred when it: (1) "permitted the introduction of a huge volume of highly inflammatory yet irrelevant and prejudicial gang evidence [during Phase I of the trial] and denied his request for a mistrial[;]" (2) [;]'" and (3) permitted the prosecutor to introduce "evidence of two gang rap videos without applying the requirements of Evidence Code section 352.2 in its evaluation." (Capitalization omitted.) Finally, Ibarra contends the cumulative effect of these errors "ha[d] a compounding effect that amplifies the prejudice of each individual error."
As to the alleged Doyle error, we conclude the trial court erred in admitting Ibarra's silence or unwillingness to answer his sister Jackie's questioning as an adoptive admission because, as we discuss in detail below, there is an inference he was relying on his Fifth Amendment right to remain silent. However, we further conclude any error was harmless beyond a reasonable doubt, as articulated in Chapman v. California (1967) 386 U.S. 18 (Chapman).
Finally, in a supplemental briefing order, this court requested the parties address an apparent sentencing error as applied to counts 9 and 17. As we discuss in detail below, both parties agree the trial court erred in defendant's sentence and therefore, we accept the parties' agreement and remand for the trial court to prepare an amended abstract of judgment reflecting the accurate sentence.
As to Ibarra's remaining claims, they lack merit. Accordingly, we affirm the judgment.
On February 28, 2017, the Kern County District Attorney filed an information charging Ibarra[5] with the premeditated first degree murder of Ramirez (§§ 187, subd. (a), 189; count 1), with the special circumstances he intentionally killed Ramirez while lying in wait (§ 190.2, subd. (a)(15)) and that the murder was carried out to further the activities of a criminal street gang (id., subd. (a)(22)); conspiracy to commit murder (§§ 182, subd. (a), 187; count 2); attempted first degree murder (§§ 187, subd. (a), 189, 664; count 3); two counts of unlawfully discharging a firearm at an inhabited dwelling (§ 246; counts 4 &6); assault with a semiautomatic firearm (§ 245, subd. (b); count 5); assault with a firearm (§ 245, subd. (a)(2); count 7); two counts of criminal threats (§ 422; counts 8 &9); unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1); count 17); carrying a loaded firearm on his person or in a car (§ 25850, subd. (c)(3); count 18); and active participation in a criminal street gang (§ 186.22, subd. (a); count 19).
As to counts 1 through 7, the information further alleged various firearm enhancements (§§ 12022.5, subd. (a), 12022.53, subds. (c), (d), (e)(1)), and as to counts 1 through 18, the information alleged the crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Finally, the information alleged Ibarra had suffered a prior "strike" and a prior serious felony conviction for active participation in a criminal street gang (§§ 667, subds. (a), (b)-(i), 1170.12, subds. (a)-(d), 186.22, subd. (a)).[6]
On March 1, 2022, the jury was sworn. Prior to the jury being sworn in, the trial court granted trial counsel's motion in limine to bifurcate the gang-murder special circumstance, the substantive gang offense, the gang enhancements, criminal threats (§ 422, counts 8 & 9), and carrying a loaded firearm (§ 25850, subd. (c)(3); count 18) offenses. On March 24, 2022, the trial court granted the People's motion to dismiss the assault with a firearm charge (§ 245, subd. (a)(2); count 7) for insufficient evidence.
On April 15, 2022, after Phase I of the trial, the jury returned guilty verdicts as to counts 1 through 6, and count 17,[7] and found true all non-gang related enhancements and allegations. Thereafter, Ibarra waived his right to a jury trial as to the gang offense and gang allegations, and pleaded no contest to counts 8, 9, and 19, and admitted the gang, firearm, and prior conviction allegations as alleged in counts 1 through 6, 8, 9, and 17, and admitted the aggravating factors.[8] The People dismissed count 18 (§ 25850, subd. (c)(3)) in exchange for the plea.
Subsequently, as to count 1, the trial court sentenced Ibarra to an indeterminate term of life without the possibility of parole, plus a consecutive indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement and a consecutive five-year term for the prior serious felony (§ 667, subd. (a)). The trial court further imposed a 20-year term for the section 12022.53, subdivision (c) firearm enhancement (§ 12022.53, subd. (c)) and a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed these two enhancements pursuant to section 654. As to count 2, the trial court sentenced Ibarra to an indeterminate term of 25 years to life, doubled to 50 years to life, because of the prior strike, plus an indeterminate term of 25 years to life for the section 12022.53, subdivision (d) firearm enhancement, a 20-year term for the section 12022.53, subdivision (c) firearm enhancement, and a five-year term for the prior serious felony (§ 667, subd. (a)), but stayed this total sentence pursuant to section 654. As to count 3, the trial court sentenced Ibarra to an indeterminate term of 15 years to life, doubled to 30 years to life because of the prior strike, plus a 20-year term for the section 12022.53, subdivision (c) firearm enhancement and a five-year term for the prior serious felony (§ 667, subd. (a)), to be served consecutive to count 1.
As to counts 4 and 6, the trial court imposed two consecutive indeterminate terms of 32 years to life, doubled to 64 years to life because of the prior strike, to be served consecutive to count 3. As to count 5, the trial court sentenced Ibarra to the upper term of nine years, doubled to 18 years because of the prior strike, plus a 10-year term for the gang enhancement (§ 186.22, subd. (b)(1)), but stayed this sentence pursuant to section 654. As to count 8, the trial court sentenced Ibarra to the upper term of three years, doubled to six years because of the prior strike, plus a five-year term for the gang enhancement (§ 186.22, subd. (b)(1)), to be served consecutive to count 6. As to count 9, the trial court sentenced Ibarra to a term of eight months (one-third the middle term of two years), doubled to 16 months because of the prior strike, plus a term of 18 months (one-third the term of five-years) for the gang enhancement, to run consecutive to count 8.
As to count 17, the trial court sentenced Ibarra to the term of eight months (one-third the middle term of two-years), doubled to 16 months because of the prior strike, plus a term of eight months (one-third the middle term of two-years), doubled to 16 months because of the prior strike for the gang enhancement, to be served consecutive to count 9. Finally, as to count 19, the trial court sentenced Ibarra to the upper term of three years, doubled to six years because of the prior strike, but stayed this sentence pursuant to section 654. Therefore, the total aggregate sentence imposed was an indeterminate term of life without the possibility of parole, plus 183 years to life, plus a determinate term of 51 years, 6 months.
Tony lived in a house in Wasco with his mother (Melissa C.), his mother's boyfriend (Ramirez), his brothers, Javier V Joey C., and Tommy V., and his sisters, Amanda V. and Samantha C. Tony's father, Raul V., and his cousin Agustin V., introduced him to the VWR gang. Tony was around 15 or 16 years old when he was "jumped" into the VWR and began actively participating in gang...
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