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People v. Ibanez

California Court of Appeals, Second District, First Division
Jan 27, 2012
B222929, B232452, B222929 (Cal. Ct. App. Jan. 27, 2012)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. KA088033. Michael Villalobos, Judge.

ORIGINAL PROCEEDING; petition for writ of habeas corpus. Michael Villalobos, Judge.

Sarvanaz Bahar, under appointment by the Court of Appeal, for Defendant and Appellant and Petitioner.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent and Respondent.


ROTHSCHILD, Acting P. J.

Antonio Ibanez appeals from the judgment following his conviction of one count of second degree burglary and one count of receiving stolen property. Ibanez contends that the trial court erred in excluding evidence that a third party committed the crimes and that the evidence was insufficient to support his conviction of receiving stolen property. We reject these contentions and affirm the judgment. In a related petition for habeas corpus, Ibanez argues his counsel failed to provide him with effective assistance during the trial. We have read and considered the petition and it is denied. (See fn. 1, post.)

FACTS AND PROCEEDINGS BELOW

On August 23, 2009, at approximately 6:30 a.m., sheriff’s deputies received a report of a burglary at the Willow Adult School in La Puente. When the deputies arrived at the school they found that the door to one of the buildings had been pried open with a metal clothes hanger. This door led to the room where the school stored electronic equipment such as computers, servers and other hardware. The deputies were unable to determine whether any items had been taken from the room that morning.

In searching the school grounds the deputies noticed a six- to seven-foot cement block wall north of the building that had been entered. The wall had fresh dirt and scuff marks on it suggesting that the burglar had recently climbed the wall and might be hiding in the house on the other side. The deputies went to that house. (Evidence later showed that that house belonged to Ibanez’s mother. We will refer to it as the Ibanez house.) The deputies received permission from the person who answered the door to search the house and backyard. In the yard they found a chair placed against the cement block wall that separated the Ibanez house from the school. The chair was exactly opposite the dirt and scuff marks on the school’s side of the wall. The deputies saw two different sets of shoe prints on the chair’s cushion. The deputies also found a wire-handled flyswatter bent in the same shape as the metal coat hanger they found at the site of the burglary and a pair of black Air Jordan shoes which they later learned belonged to Ibanez. The soles of the Air Jordan shoes appeared to match one set of shoe prints on the chair cushion. The deputies also saw a chair propped up against the wall that separated the Ibanez house from the house next door which belonged to Diana Limon. (We will refer to this house as the Limon house.) The deputies went to the Limon house and obtained permission to search it.

While the deputies were conducting their investigation at the Ibanez and Limon houses, Mike Gonzalez, the school’s technology coordinator, received a call at home informing him of the burglary. Gonzalez used his computer to remotely access a video recorded that morning by a surveillance camera located in the school’s computer storage room. The video showed a man entering the room but when Gonzalez attempted to pause the video and save the man’s image on his computer, his computer froze and the image was lost. Gonzalez observed the image for approximately 15 seconds before it disappeared. The deputies received Gonzalez’s description of the man on the video while they were investigating the burglary at the Ibanez and Limon houses. Gonzalez described the man as Hispanic, wearing a white shirt and dark pants with hair about three-quarters of an inch long. Gonzalez did not see the man’s feet and did not notice any facial hair.

The deputies did not find any computers or other evidence of the school burglary at the Limon house. They did, however, encounter Alberto Serrano, a six foot tall Hispanic wearing a white shirt, dark pants and Nike shoes. The deputies compared the soles of Serrano’s shoes with the prints on the chair at the Ibanez residence and determined that they were compatible with one of the sets of prints. Unlike the man described by Gonzalez, however, Serrano had a completely shaved head and a mustache. Serrano was not arrested.

Two days after the burglary Detective Thomas Lodolo prepared a photographic lineup and showed it to Gonzalez. Lodolo included Ibanez’s photograph in the lineup based on information that Ibanez owned the Air Jordans that matched one set of prints on the chair. The photograph, taken in 2005, showed Ibanez with a mustache. Lodolo included Serrano’s photograph because Serrano’s clothing on the morning of the burglary resembled the clothing worn by the burglar and Serrano’s shoes appeared to match a set of shoe prints on the chair. Lodolo showed Gonzalez two sets of photographs with Ibanez’s photograph on the first page and Serrano’s photograph on the second. Almost immediately Gonzalez circled Ibanez’s photograph and said: “‘That’s the person [I] saw on the video.’” Gonzalez passed over Serrano’s photograph without comment. Lodolo issued a “wanted” flier on Ibanez to patrol deputies.

The following day deputies making their rounds in the neighborhood near the school saw Ibanez in front of the Limon house. When Ibanez saw the deputies he ran inside the house. Upon knocking, the deputies were admitted to the house by a woman. They found Ibanez in the attic and took him into custody. In the backyard the deputies found four laptop computers “scattered throughout the lawn.” Lodolo subsequently determined that these computers had been stolen from the school.

At the sheriff’s station Ibanez was advised of his Miranda rights and agreed to speak to Lodolo. Ibanez explained that he ran from the deputies because he thought they were looking for him for a parole violation. He denied committing the burglary at the school but admitted that he “might have gone on the school property, ” adding: “But I wasn’t the only one. I don’t want to get any friends in trouble or anybody else in trouble.” When Lodolo asked Ibanez about the computers found on the lawn at the Limon house, Ibanez said he had seen them in the backyard several weeks ago and knew that they belonged to the school. Lodolo did not believe Ibanez’s statement that the computers had been in the Limon’s backyard for weeks because Lodolo had made a thorough search of the yard a few days earlier and did not find any computers. Ibanez admitted the Air Jordan shoes were his and that he had a haircut the day after the burglary occurred. Lodolo told Ibanez he believed that when Ibanez saw the sheriff’s deputies drive by the Limon house he ran inside, threw the computers out of the house onto the back lawn and then hid in the attic. In response, Ibanez “smiled and said, you know, I was scared. I didn’t want to go back to prison.”

At the time of Ibanez’s arrest, Diana Limon told the deputies that she had a computer in the house that she bought a month earlier for $100 from a man named Danny Diaz. The deputies seized the computer and subsequently determined that it had been stolen from the school although they could not determine when. Several months later Limon told a defense investigator that Danny Diaz lived in her backyard “from time to time” and that she had seen him in the yard in the early mornings selling computers. She also told the investigator that when items started disappearing from her house she suspected Diaz was a thief and “threw him out.”

Prior to trial the prosecutor made a motion in limine to exclude any third party culpability evidence as to Sorrano and Diaz. The trial court denied the motion as to Serrano but granted the motion as to Diaz.

At trial, Gonzalez repeated his identification of Ibanez as the man he saw on the video entering the computer storage room. He acknowledged that the man in the video did not appear to have a mustache but that Ibanez did have a mustache in the lineup photograph and in the photograph taken upon his arrest three days after the burglary. Gonzalez explained this discrepancy by noting that the video only showed a portion of the right side of the burglar’s head; Gonzalez could not see the full front of the man’s face. Gonzalez testified that there had been three other thefts of computers from the school in the 30-day period prior to Ibanez’s burglary.

The jury convicted Ibanez of one count of second degree burglary and one count of receiving stolen property. The court sentenced him to a five year prison term. Ibanez filed a timely appeal.

DISCUSSION

I. THE COURT DID NOT ERR IN EXCLUDING THIRD PARTY CULPABILITY EVIDENCE REGARDING DIAZ.

Ibanez contends that the trial court erred in excluding third party culpability evidence regarding Diaz. We disagree.

In a petition for a writ of habeas corpus filed with his appeal, Ibanez contends his trial counsel was negligent in not presenting evidence to refute the prosecutor’s argument in support of his motion in limine that Diaz was not a real person and in not challenging the prosecutor’s repeated misstatements in his closing argument that Ibanez had admitted to Detective Lodolo that “he was in the building” that was burglarized. At our request the People filed an informal response to the petition. Having read and considered the petition, the response and the reply to the response we deny the writ.

Third party culpability evidence is subject to the same basic rules of admissibility as any other exculpatory evidence. The evidence has to be relevant under Evidence Code section 350 and its probative value cannot be substantially outweighed by the risk of undue delay, prejudice or confusion under Evidence Code section 352. (People v. Geier (2007) 41 Cal.4th 555, 581.) Relevancy in this context means “that third party culpability evidence is admissible only if it links a third party to the crime.” (People v. Page, supra, 44 Cal.4th at p. 39.)

See People v. Page (2008) 44 Cal.4th 1, 38, footnote 16, noting that in Holmes v. South Carolina (2006) 547 U.S. 319, the court held that it is a violation of the federal constitution for a court to rely on the strength of the prosecution’s case against the defendant to exclude evidence of third party culpability, thereby rendering “suspect” the reasoning in People v. Johnson (1988) 200 Cal.App.3d 1553, 1563-1564, which upheld the exclusion of third party culpability based on the strength of the prosecution’s evidence.

In this case, there was no evidence linking Diaz to the burglary. There was evidence that during the July-August 2009 timeframe pled in the information Diaz sold Diana Limon a computer stolen from the school but the prosecution did not claim that Ibanez had ever been in possession of that computer. Rather, to support the charge of receiving stolen property, the prosecution claimed that Ibanez had possessed the stolen computers found on the back lawn of the Limon house at the time of his arrest there. No evidence linked Diaz to those computers.

II. SUBSTANTIAL EVIDENCE SUPPORTS IBANEZ’S CONVICTION OF RECEIVING STOLEN PROPERTY

To establish Ibanez’s guilt of receiving stolen property, the prosecution had to prove “(1) the property was stolen; (2) the defendant knew the property was stolen; and (3) the defendant had possession of the stolen property.” (People v. Land (1994) 30 Cal.App.4th 220, 223.)

As previously noted, the prosecution contended that the stolen property that Ibanez unlawfully possessed was the four laptop computers the deputies found in the backyard of the Limon house when they arrested Ibanez in the attic of the house. Ibanez admitted that he knew the computers were stolen so the only issue is whether Ibanez ever had possession of the computers.

Circumstantial evidence supports the element of possession.

Annette Limon, Diana’s daughter, testified that she had known Ibanez for “about 25 years” and that he would come over to her house on a daily basis. This testimony showed that Ibanez had easy access to the Limon house where the computers were found and the jury could reasonably infer that from his frequent visits Ibanez had acquired vast familiarity with the house and would know where he could hide laptop computers without the Limons discovering them.

Ibanez admitted to Detective Lodolo that his fingerprints would be on the computers. He explained, however, that his fingerprints got on the computers merely because he “looked at them.” The jury did not have to believe this explanation. Indeed, the jury would have had good reason not to believe Ibanez’s exculpatory statements to Lodolo if they believed that Ibanez lied when he told Lodolo the computers had been in the backyard for “several weeks” or “about a week” (Lodolo had testified that he had been in the backyard just a few days earlier and there were no computers there.)

Furthermore, the deputies found the computers in the backyard of the Limon house just before they discovered Ibanez hiding in the attic. The computers were not concealed but “scattered throughout the lawn, ” giving credence to Lodolo’s theory that Ibanez had tossed them out a window on his way to hide in the attic.

Finally, when Lodolo expressed his theory to Ibanez, Ibanez did not dispute it. Instead, he responded: “You know, I was scared. I didn’t want to go back to prison.” The jury could reasonably view Ibanez’s response as an admission that he had been in possession of the stolen computers.

DISPOSITION

With respect to the appeal in case number B222929, the judgment is affirmed. With respect to the petition for writ of habeas corpus in case number B232452, the petition is denied..

We concur: CHANEY, J. JOHNSON, J.


Summaries of

People v. Ibanez

California Court of Appeals, Second District, First Division
Jan 27, 2012
B222929, B232452, B222929 (Cal. Ct. App. Jan. 27, 2012)
Case details for

People v. Ibanez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTONIO IBANEZ, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Jan 27, 2012

Citations

B222929, B232452, B222929 (Cal. Ct. App. Jan. 27, 2012)