People v. Ibarra

• Decision Date: 28 July 1982
• Docket Number: Cr. 13405
• Citation: 134 Cal.App.3d 413,184 Cal.Rptr. 639
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hector Pedro IBARRA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 639

184 Cal.Rptr. 639

134 Cal.App.3d 413

The PEOPLE, Plaintiff and Respondent, v. Hector Pedro IBARRA, Defendant and Appellant.

Cr. 13405.

Court of Appeal, Fourth District, Division 1, California.

July 28, 1982.

Hearing Denied Sept. 22, 1982

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Bernard A. Delaney and Robert M. Foster, Deputy Attys. Gen., for plaintiff and respondent.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, and Barbara A. Smith, Deputy State Public Defender, for defendant and appellant.

COLOGNE, Associate Justice.

Hector Pedro Ibarra was charged with murder (Pen.Code, § 187), ¹ attempted murder (§§ 664, 187) and attempted robbery (§§ 664, 211), with personal firearm use as to each count (§ 12022.5), and a prior violent felony conviction in Texas within the meaning of section 667.5, subdivision (a). Ibarra admitted the prior violent felony before trial and a jury found him guilty of voluntary manslaughter, attempted voluntary manslaughter and attempted robbery, with personal use of a firearm in each count. The trial court sentenced Ibarra to a total determinate term of 13 1/2 years, and he appeals.

In the evening of January 23, 1981, Ibarra gave a ride to Gerald H., known as "Terry," a 17-year-old transvestite prostitute who was hitchhiking the streets of Oceanside looking for "tricks." On Terry's suggestion, Ibarra agreed to pay Terry $25 for an act of oral copulation. When Ibarra stopped the car, he pulled a loaded revolver out, pointed it at Terry and demanded money and an act of oral copulation. Terry showed Ibarra he had only change in his purse. Ibarra had Terry move next to him and Ibarra put his arm around Terry, stuck the revolver in Terry's ribs, then fired a shot into the passenger door. Terry was upset and crying, and Ibarra drove him to the Pacific Motel where Terry lived with his 23-year-old lover, David Stevens.

At the motel, Terry told Stevens and others there what happened (though Terry changed the attempted robbery to an attempted rape) and gave the description of Ibarra and his car. Stevens was upset and wanted to go after Ibarra, but Terry talked him into calling the police. After the group spoke to the police about the incident, Stevens and his friend, Ken Prior, armed themselves with a Bowie knife and half of a nunchaku ² weapon (a stick with a chain hanging from it) and went to downtown Oceanside "to get" the assailant. Terry and Michael S., known as "Michelle" and Prior's 16-year-old transvestite lover, went downtown separately and located Ibarra's car. Michelle called the police who came and told Prior and Michelle to leave for their own safety and to avoid interfering with the police. Prior conveyed this information to Stevens who continued to watch Ibarra's car.

Ibarra returned to his car and was approached by Stevens and Prior. Stevens told Ibarra he knew about the incident with Terry, and Ibarra began walking away on the crowded sidewalk. Stevens and Prior followed, telling Ibarra repeatedly the police had been called and to wait for the police. Ibarra told them he wanted no trouble, just leave him alone, and kept walking away. After Stevens and Prior had followed Ibarra a total of 10 minutes, Stevens moved quickly in front of him near an abandoned laundromat at a dark intersection and the three of them stopped in position for encounter. Ibarra had his back to the laundromat and stood facing Stevens and Prior who were about six feet to either side of him and eight feet from each other. Ibarra asked whether they would let him go if he gave them some money and Stevens responded they would if he gave him $400. Ibarra said all he had was $20. Stevens told him that was "too bad, we'll just have to wait for the police," and Prior asked Ibarra to take his hands out of his pockets.

At that point, Ibarra pulled the revolver from his right pocket and, bracing his right hand with his left, pointed it at Prior who kneeled to the ground. Using the same bracing position, Ibarra then aimed at Stevens and pulled the trigger, but the gun did not fire. Stevens opened his jacket and said he did not believe the gun was loaded. Ibarra shot again, putting a bullet through Stevens' heart and lungs, killing him instantly.

Ibarra then fired three rounds at Prior, but missed. He ran from the scene and burst into a nearby apartment, telling the occupants to call the police because someone was trying to kill him. The occupants obliged his request by flagging down an officer on patrol who arrested Ibarra.

Ibarra admitted the shooting but claimed self-defense. He testified Stevens had his hand behind him and moved a half step toward him just before he pulled the trigger the second time. Ibarra said he thought the victims were armed since they had come after him knowing he had a gun, and he feared for his own safety when they stopped him, causing him to think they might beat him or rob him. He never saw the partial nunchakus Prior carried or the Bowie knife which was found in a locked open position with its blade protruding from Stevens' right rear pocket. He told police he was surprised he missed shooting Prior. On cross-examination, Ibarra testified, in part:

"Q Now, at the time you pulled the trigger, you didn't know that the hammer was going to strike an empty cylinder; did you?

"A No, I didn't.

"Q So at the time you pulled the trigger the very first time, it was your intention to kill David Stevens; wasn't it?

"A No, it wasn't.

"Q Well, you were holding the gun just three or four feet from his chest; weren't you?

"A That's right.

"Q And you were pointing it at his chest?

"A That's correct.

"Q Your intention was not to kill David Stevens?

"A I didn't really think about it. I was going to shoot him.

"Q Your intention was to shoot him?

"A That's correct."

Ibarra contends the trial court erred in failing to instruct sua sponte on the necessarily included offenses of involuntary manslaughter (as to the murder charge) and assault with a deadly weapon (as to both the murder and attempted murder charges).

With respect to the involuntary manslaughter instruction, Ibarra claims he "unequivocally testified he had no intent to kill Stevens; he only intended to shoot him." He points out an intent to kill is required for voluntary manslaughter and, if the jury could have found he killed Stevens both without malice and without intent to kill, it could have returned an involuntary manslaughter verdict. He notes the jury was instructed that an honest but unreasonable belief in the necessity to defend one's self negates malice and reduces the offense to manslaughter (CALJIC No. 5.17; ³ People v. Flannel, 25 Cal.3d 668, 674-683, 160 Cal.Rptr. 84, 603 P.2d 1), and the jury was instructed on voluntary manslaughter. The jury's voluntary manslaughter verdict, he asserts, shows the jury found him credible in claiming he honestly but unreasonably perceived a need to shoot in self-defense. However, he claims the lack of an involuntary manslaughter instruction placed the jury in a difficult position under the instructions as given because, if the jurors also believed his testimony he had no intent to kill, they would have to acquit him completely when in their view he killed without legal justification, i.e., an objectively reasonable claim of self-defense.

Aside from the fact we do not believe the evidence supported giving the involuntary manslaughter instruction, the theory Ibarra presents was by no means a principle of law " 'commonly or closely and openly connected with the facts of the case before the court.' " (People v. Flannel, supra, 25 Cal.3d 668, 681, 160 Cal.Rptr. 84, 603 P.2d 1, quoting from People v. Wade, 53 Cal.2d 322, 334, 1 Cal.Rptr. 683, 348 P.2d 116.) Not until November 1979, did the so-called unreasonable belief rule become a general principle having the effect of eliminating the malice element necessary to find any degree of a murder and thus leaving voluntary manslaughter, the remaining form of intentional killing, as the homicide on which instructions were required (People v. Flannel, supra, 25 Cal.3d 668, 679, 682-683, 160 Cal.Rptr. 84, 603 P.2d 1). We note the defense of diminished capacity will give rise to the need to instruct on involuntary manslaughter since this particular defense can have the effect also of negating the intent to kill element of a homicide with the result even voluntary manslaughter is not a possibility (see People v. Tidwell, 3 Cal.3d 82, 86, 89 Cal.Rptr. 58, 473 P.2d 762). However, that the unreasonable belief rule can have an effect of negating the intent to kill element, similar to that we find in the diminished capacity defense, is not established or even suggested by any case cited to us by the parties. Under these circumstances, the idea propounded by Ibarra can hardly be viewed as a general principle of law to which there attaches a duty to instruct sua sponte (see People v. Flannel, supra, 25 Cal.3d 668, 680-683, 160 Cal.Rptr. 84, 603 P.2d 1). On this basis, no duty to instruct sua sponte on the offense of involuntary manslaughter existed.

On the matter of evidentiary support for the involuntary manslaughter instruction, the general rule is the trial court is required to give an instruction as to lesser included offenses "only if there is substantial evidence to support a jury's determination that the defendant was in fact only guilty of the lesser offense" (People v. Ramos, 30 Cal.3d 553, 582, 180 Cal.Rptr. 266, 639 P.2d 908; emphasis added). The single piece of evidence of lack of intent Ibarra cites is his negative answer to the one question, quoted above, about whether it was his intention to kill David Stevens. The next succeeding four questions and answers make his answer to the first question equivocal and erase any substantiality that might otherwise be attributed to his answer to the first question. From Ibarra's...