People v. Ibarra

• Decision Date: 13 November 2007
• Docket Number: No. F050331.,F050331.
• Citation: 67 Cal.Rptr.3d 871,156 Cal.App.4th 1174
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rudy Jesse IBARRA, Defendant and Appellant.

67 Cal.Rptr.3d 871

156 Cal.App.4th 1174

The PEOPLE, Plaintiff and Respondent, v. Rudy Jesse IBARRA, Defendant and Appellant.

No. F050331.

Court of Appeal, Fifth District.

November 13, 2007.

As Modified November 27, 2007.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOMES, J.

After a jury found appellant Rudy Jesse Ibarra guilty of one count of felony stalking and of two counts of misdemeanor assault of his live-in girlfriend on November 6, 2005, he admitted a serious felony prior—willful and malicious discharge of a firearm from a motor vehicle at another person other than an occupant of a motor vehicle—that qualified as a strike prior, on which basis the court sentenced him to six years (double the three-year aggravated term) on the stalking and to time served on the two assaulte. (§§ 240,¹ 646.9, subd. (a), 667, subds. (b)-(j), 1170.12, subds. (a)(e), 1192.7, subd. (c)(36), 12034, subd. (c).)

With reference to most of his 21 appellate issues, Ibarra argues that numerous CALCRIM instructions subjected him "to a criminal trial with a jury incorrectly charged as to the applicable law" and "so infused the trial with unfairness as to deny [him] equal protection under the law and his right to due process of law" as guaranteed by the federal and state constitutions. As to some of those issues, he invokes his constitutional privilege against self-incrimination, right to trial by jury, right to confront witnesses against him, right to compulsory process, and right to counsel, too. The Attorney General argues as to some, but not all, of Ibarra's instructional issues that he forfeited his right to appellate review by failing to object, by inviting error, or by failing to request modification. Ibarra nonetheless, claims a right to appellate review on the ground of ineffective assistance of counsel. In the interests of brevity and judicial efficiency, we will address Ibarra's instructional issues on the merits without individual references to the constitutional grounds of his arguments, to the Attorney General's forfeiture arguments, or to Ibarra's claims of ineffective assistance of counsel. We will affirm the judgment.

DISCUSSION

1. CALCRIM No. 100

Ibarra argues that CALCRIM No. 100 is a prejudicial burden shifting instruction. He challenges several facets of the instruction.

First, citing Taylor v. Kentucky (1978) 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 for the proposition that the "presumption of innocence alone is sufficient to acquit the defendant," Ibarra argues that a clause in the instruction—"the defendant does not have to prove that he is not guilty"— misstates the law. He quotes the clause out of context. The entire sentence from which he extracts the clause—"Because he is presumed innocent, the defendant does not have to prove that he is not guilty."— correctly states the law. (Italics added.)

Second, he argues that the instruction "fails to assure the jurors will understand that except for affirmative defenses and preliminary facts the defendant has no burden to present evidence or prove anything at trial" and that "no other CACRIM instruction specifically informs the jurors the defendant has no burden of proving specific issues at trial." (Citations omitted.) Rejecting an analogous challenge, our Supreme Court held that the standard reasonable doubt instruction, other aspects of the charge to the jury, and the prosecutor's argument to the jury about her own "burden of proof on each and every count" emphasized the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt so it was "not reasonably likely the jury understood the challenged instructions to mean defendant had the burden of establishing his innocence." (People v. Frye (1998) 18 Cal.4th 894, 957-961, 77 Cal. Rptr.2d 25, 959 P.2d 183 (Frye).)

Here, the court instructed the jury on the prosecution's `burden of proof beyond a reasonable doubt with not only CALCRIM No. 220 (Reasonable Doubt) but also in other contexts with CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of Evidence), 355 (Defendant's Right Not to Testify), CALCRIM No. 359 (Corpus Delicti Independent Evidence of a Charged Crime), CALCRIM No. 852 (Evidence of Uncharged Domestic Violence), CACRIM No. 3145 (Personally Used Deadly Weapon), and CALCRIM No. 3517 (Deliberations and Completion of Verdict Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately Charged (Non-Homicide)). Just before argument, the court stated to the jury, "At this point, then, the People have the burden of proof. They have the first and last argument." In his opening and closing arguments to the jury, the prosecutor emphasized the jury's duty to consider the evidence in light of his own burden of proof beyond a reasonable doubt. Here, on a record akin to that in Frye, it was not reasonably likely that the jury understood the challenged instructions to mean Ibarra had the burden of establishing his innocence.

Third, Ibarra argues that CACRIM No. 100 "erroneously implies that pretrial and all midtrial instructions do not apply to the case." The sole basis of his argument, for which he cites no authority, is a single sentence in CALCRIM No. 100: "After you have heard all the evidence and before the attorneys give their final arguments, I will instruct you on the law that applies to the case." In toto, the instruction reads as follows:

"Before we begin, I am going to describe for you how the trial will be conducted, and explain what you and the lawyers and I will be doing. When I refer to `the People,' I mean the attorney from the district attorney's office who is trying this case on behalf of the People of the State of California. When I refer to defense counsel, I mean the attorney who is representing the defendant, Rudy Ibarra.

"The first step in the trial is the People's opening statement. The defense may choose to give an opening statement then or at the beginning of the defense case. The purpose of an opening statement is to give you an overview of what the attorneys expect the evidence will show.

"Next, the People will offer their evidence. Evidence usually includes witness testimony and exhibits. After the People present their evidence, the defense may also present evidence but is not required to do so. Because he is presumed innocent, the defendant does not have to prove that he is not guilty.

"After you have heard all the evidence and before the attorneys give their final arguments, I will instruct you on the law that applies to the case. After their arguments, I will have some final instructions for you. You will receive a copy of all of the Court's instructions when the case is submitted to you for decision.

"After you have heard all of the arguments and instructions, you will go to the jury room to deliberate." (CACRIM No. 100.)

The Bench Notes to CALCRIM No. 100 observe that although there "is no sua sponte duty to give an instruction outlining how the trial will proceed" the instruction is available "for the convenience of the trial judge who may wish to explain the trial process to jurors." The authorizing rule of court illuminates the purpose of the instruction:

"Immediately after the jury is sworn, the trial judge may, in his or her discretion, preinstruct the jury concerning the elements of the charges or claims, its duties, its conduct, the order of proceedings, the procedure for submitting written questions for witnesses as set forth in rule 2.1033 if questions are allowed, and the legal principles that will govern the proceeding," (Cal. Rules of Court, rule 2.1035.)

Ibarra's challenge to the one sentence in the instruction is entirely silent about another sentence in the instruction that obligates the jury to hear "all of the arguments and instructions" before deliberating. (CALCRIM No. 100; italics added.) Congruently, he cites nothing in the record showing, let alone intimating, that the jury ignored any of the court's instructions, whether given before, during, or after the evidentiary phase of trial. The standard of review applicable to an instruction challenged on appeal as ambiguous is whether there is a reasonable likelihood that the jury applied the instruction in a way that denied the defendant a fair trial. (Estelle v. McGuire (1991) 502 U.S. 62, 72-73, 112 S.Ct. 475, 116 L.Ed.2d 385 (Estelle); People v. Clair (1992) 2 Cal.4th 629, 663, 7 Cal.Rptr.2d 564, 828 P.2d 705 (Clair).) Ibarra fails to persuade us that the jury applied the instruction in that way. So we apply the presumption that jurors are able to correlate, follow, and understand the court's instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852, 111 Cal.Rptr.2d 129, 29 P.3d 209 (Sanchez)) and reject his argument.

Fourth, Ibarra challenges another single sentence in CALCRIM No. 100—"Evidence usually includes witness testimony and exhibits."—by arguing, in toto, as follows: "This is incomplete and implies nothing else constitutes evidence. Evidence may also include matters such as out-of-court statements and stipulations. (See, CALCRIM [No.] 222².)" "Other than a brief mention of the argument, however, he does not expand on the issue with either argument or citation to relevant authority. We thus decline to address the issue." (People v. Hardy (1992) 2 Cal.4th 86, 150, 5 Cal.Rptr.2d 796, 825 P.2d 781 (Hardy).)

Fifth, Ibarra argues that the definition in CALCRIM No. 100 of "the People" as "the attorney from the district attorney's office who is trying this case on behalf of the People of the State of California" improperly favors the prosecution. With commendable candor, he acknowledges that People v. Black (2003) 114 Gal. App.4th 830, 7...