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People v. Ibarra

California Court of Appeals, Second District, Third Division
Sep 25, 2008
No. B201889 (Cal. Ct. App. Sep. 25, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSE IVAN IBARRA, Defendant and Appellant. B201889 California Court of Appeal, Second District, Third Division September 25, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. MA032988, Charles A. Chung, Judge.

Lawrence R. Young, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec, and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.

KLEIN, P. J.

Jose Ivan Ibarra appeals the judgment entered following his conviction by jury of first degree burglary, making a criminal threat, attempted forcible sodomy, forcible rape, grand theft, two counts of attempting to dissuade a witness, first degree robbery and assault with intent to commit a felony. (Pen. Code, §§ 459, 422, 664/286, subd. (c)(2), 261, subd. (a)(2), 487, subd. (a), 136.1, subd. (c)(1), 211, 220.) The jury found Ibarra committed first degree burglary with the intent to commit rape within the meaning of section 667.61, subdivisions (a) and (d)(4), and that he committed forcible rape during the commission of residential burglary within the meaning of section 667.61 subdivisions (b) and (e)(1). The trial court sentenced Ibarra to a term of 38 years and 8 months to life in state prison.

Subsequent unspecified statutory references are to the Penal Code.

We reject Ibarra’s sole contention on appeal, that he improperly was denied representation by the attorney of his choosing, and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

1. Pre trial proceedings.

The charged offenses occurred in the early morning hours of August 29, 2005. Dale Atherton, an appointed bar panel attorney, represented Ibarra at the preliminary hearing on October 4, 2005, and at arraignment on October 18, 2005.

The case was set for trial numerous times. On May 29, 2007, the trial court granted Ibarra’s ex parte request for appointment of a second DNA expert.

The case was set for jury trial on January 12, 2006 (day 0 of 10), February 7, 2006 (day 0 of 20), March 7, 2006 (day 0 of 10), March 27, 2006 (day 0 of 30), June 12, 2006 (day 0 of 30), August 1, 2006 (day 0 of 30), September 5, 2006 (day 0 of 15), September 21, 2006 (day 0 of 20), November 8, 2006 (day 0 of 20), December 8, 2006 (day 0 of 30), January 5, 2007 (day 0 of 30), February 21, 2007 (day 2 of 10), March 26, 2007 (day 7 of 10), April 23, 2007 (day 0 of 10), May 1, 2007 (day 7 of 10).

On June 12, 2007, day 0 of 10, defense counsel asked that the matter trail another matter counsel was trying. The prosecutor indicated for the record that the People had offered Ibarra 15 years to life in state prison. The prosecutor might have considered a determinate term in the range of 20 years at 85 percent but had learned that Ibarra wanted a 12-year term. The prosecutor indicated the People were withdrawing all offers except the offer of 25 years to life.

The trial court then conducted a Marsden hearing. (People v. Marsden (1970) 2 Cal.3d 118.)

Thereafter, the trial court noted that although defense counsel had access to a DNA expert, the opinion rendered by the expert had not been helpful and the explanation of the results had been inadequate. The second appointed expert had informed defense counsel the expert would not be able to provide an opinion until the end of July. The trial court deemed the defense ready over defense counsel’s objection and ordered the parties to return on June 18, as day six of ten. The trial court noted the information in this case was filed in October of 2005 and there had been sufficient time for the defense to prepare. When the defense requested a continuance to receive the DNA test results, the trial court denied the motion and the matter was trailed for trial.

On June 21, 2007, day 0 of 20 for trial, Andy Miri, an attorney from the Law Offices of Lawrence R. Young, appeared and requested to substitute into the case as Ibarra’s representative.

On June 22, 2007, Miri again appeared on behalf of Young as Ibarra’s prospective new counsel. The trial court noted Mr. Atherton was engaged in the trial of a multi-defendant murder case in Compton. The trial court previously had ordered Atherton to be ready to try this case as soon as he completed his current trial. The trial court noted the case was almost two years old and the People had announced ready on a number of occasions. The trial court stated Atherton previously had been denied a brief continuance to review the opinion of a second DNA expert after Atherton had been dissatisfied with the handling of the case by the first DNA expert. The trial court indicated, “So Mr. Atherton is very much in the thick of this case. He understands what is going on. He is in the process of working with the expert. He has indicated he is ready to proceed and he will proceed on this case as soon as he is done in Compton which should be within the [20-day trailing] period.”

We take judicial notice of Ibarra’s petition for writ of mandate filed in this court on July 13, 2007, and denied on July 16, 2007, with its attachments including the reporter’s transcript of the proceedings of June 22, 2007. (Case No. B200511.)

The trial court indicated that, given the “late hour,” the trial court would allow Mr. Young to substitute into the case only if he announced ready. The trial court further observed that Young’s office had thus far been unable to obtain discovery from Atherton because Atherton was in trial.

When Ibarra again indicated he wished to substitute counsel, the trial court addressed Miri and noted the seriousness of the charges and the substantial amount of prison time Ibarra faced. The trial court asked if Miri were authorized to announce ready on behalf of Mr. Young. In response, Miri asked whether it would be possible to “set the case for next week as zero of 15” to allow Young to appear. The trial court indicated it did not see any need for such a continuance in that the case already was trailing.

Miri then indicated he wished to put on the record that, because this case involved only a “DNA issue . . ., we will be ready. However, I would like to request, if possible, for a short continuance, make it a zero of 45 to [investigate the DNA results]; but if your honor does not want to go with that request, your honor, yes, then in that case we will be ready.”

The trial court then indicated it previously had advised Mr. Atherton there would be no further continuances and inquired if Mr. Young would remain free of other trial engagements. Miri indicated he understood the matter would be tried by Mr. Young within the 20-day trailing period. The trial court then asked whether Young had any engagements between now and the start of this trial that might result in Young’s becoming engaged in another trial. Miri responded, “that’s why I asked for a zero of 15 . . ., because I don’t have his calendar right now in front of me . . . .”

The trial court indicated that, unless it received an “unqualified announcement” of ready, the request would be denied. Miri attempted to reach Mr. Young by telephone without success. Instead, Miri indicated Young’s office had represented that Mr. Young was not presently engaged.

The trial court responded, “[B]ased on that I am not substituting out Mr. Atherton. The fact that [Mr. Young] is not engaged does not give me the level of assurance I need that he will not get engaged. . . . [¶] . . . The People have the right to a speedy trial. The defendant has the right to a speedy trial. This case is over two years old. He is going to get a quicker trial, I believe, if Mr. Atherton stays on.”

On July 24, 2007, a panel of prospective jurors was called and the trial commenced with Atherton representing Ibarra.

2. Trial.

The trial evidence indicated that, in August of 2005, Ibarra lived with his mother in a trailer park in Lancaster. His stepfather lived in the same trailer park. In the early morning hours of August 29, 2005, Ibarra attempted to steal his stepfather’s truck by smashing out the window. Ibarra’s stepfather’s girlfriend, Barbara M., pulled Ibarra from the truck and Ibarra ran across the desert. Barbara M. called the police.

Ibarra then tried to gain entrance to the motor home of Gloria R. who also lived in the trailer park. Gloria R. knew Ibarra and refused him entrance.

Ibarra then put a ladder next to an open window of the motor home occupied by Patricia A. She testified that, in the middle of the night, she heard someone arguing outside her home. She was half asleep and the next thing she heard was footsteps inside her home and someone trying to open her bedroom door. Patricia A. thought it was her 14-year-old son who slept in a bedroom at the other end of the motor home. When Patricia A. opened the door, Ibarra entered the room, pushed Patricia A. onto the bed and got on top of her. Patricia A. screamed and called to her son. Ibarra covered her mouth and said “he was going to do what he had to do and then he would leave.”

Patricia A. said she had to use the bathroom, thinking she could escape. Ibarra asked if she wanted to die. Ibarra put Patricia A. face down on the bed and removed her panties. He attempted to penetrate her anally, then successfully penetrated her vagina and ejaculated inside of her. Ibarra then took the keys to Patricia A.’s Toyota SUV and asked Patricia A. to forgive him. Patricia A. said, “you know who I am?” Ibarra replied Patricia A.’s former husband had done something very ugly to him. Ibarra then took the keys and left. Ibarra told Patricia A. not call the police because he knew her son and he would come back to kill him.

Patricia A. had never spoken to Ibarra before the assault but had seen him in the trailer park and knew where he lived. During the assault, Patricia A. tried to use her cell phone but Ibarra took it from her.

Barbara M. was waiting for the police on the steps of her motor home two doors from Patricia A.’s motor home while Ibarra attacked Patricia A. Barbara M. saw Ibarra run to Patricia A.’s Toyota and drive from the scene.

Ibarra was arrested in Huntington Park the next day with Patricia A.’s cell phone and driving her Toyota.

After being advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]), Ibarra told a Huntington Park police officer that a friend named Antonio lent him the vehicle.

En route to the Lancaster Sheriff’s Station, Ibarra told a sheriff’s deputy that one of Ibarra’s friends named Leopoldo asked Ibarra to drive him to Huntington Park in the stolen vehicle. Ibarra denied he had ever previously seen the Toyota or Patricia A. in the trailer park.

At the Lancaster jail, Ibarra told a sheriff’s deputy that he was in the trailer park at around 1:00 o’clock on the previous morning but the only thing he did was break a window of a pickup truck.

Vaginal and external genital swabs obtained from Patricia A. contained Ibarra’s DNA.

In argument to the jury, defense counsel suggested the crime of robbery had not been committed by force because the taking of the cellular telephone appeared to have been an afterthought. Defense counsel also argued Ibarra may have entered Patricia A.’s mobile home with the intent of obtaining her Toyota. Patricia A. said she heard rummaging, which indicated the intruder was after property. Defense counsel suggested the People had not proved beyond a reasonable doubt that Ibarra formed the intent to rape before he entered the home.

The jury convicted Ibarra as charged.

DISCUSSION

1. Ibarra’s theories of error.

Ibarra contends the trial court committed reversible error in refusing to grant Young leave to substitute into the case, citing the right to be represented by counsel of one’s choosing. (People v. Crovedi (1966) 65 Cal.2d 199, 208.) Ibarra argues the error in this case was egregious because the trial court offhandedly dismissed Ibarra’s attempt to engage the services of Young.

Ibarra concedes a request for substitution of counsel may be denied when a defendant is inexcusably dilatory or deliberately attempts to use the request as a means for delay. (People v. Cruz (1972) 25 Cal.App.3d Supp. 1, 7.) Ibarra asserts there is no evidence in this case that he was attempting to delay. He argues the fact he brought a Marsden motion permits the inference he was dissatisfied with defense counsel because of the two-year delay in getting the matter to trial.

Ibarra argues the trial court correctly predicted the trial would be over quickly. It lasted only two days with minimum cross-examination and no defense witnesses or evidence. Ibarra complains that Atherton did not cross-examine the investigating officer or the son of the victim and none of the other officers, nurses or witnesses was cross-examined except the DNA expert who was cross-examined only cursorily. Ibarra argues the brevity of the trial, the failure to call any witness for the defense and the modicum of cross-examination demonstrates why Ibarra did not want to continue with Mr. Atherton.

Ibarra additionally disputes the People’s argument that Young could not have tried the case without a continuance in order to prepare. Ibarra claims Young was ready and Miri assured the court Young was ready and would not seek further delay. Thus, it was error to refuse to allow Young to represent Ibarra. The conviction therefore must be overturned.

2. No abuse of the trial court’s discretion appears.

Trial courts have discretion to refuse to permit substitution of counsel where to do so would result in “significant prejudice” to the defendant or in a “ ‘disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.’ ” (People v. Ortiz (1990) 51 Cal.3d 975, 982, quoting People v. Crovedi, supra, 65 Cal.2dat p. 208; People v. Byoune (1966) 65 Cal.2d 345, 346.) In this respect, a request for substitution of counsel is comparable to an untimely motion for self-representation. (See People v. Jenkins (2000) 22 Cal.4th 900, 959; People v. Windham (1977) 19 Cal.3d 121, 128 .)

In this case, it is apparent that Ibarra’s request to substitute counsel would have resulted in further delay of the trial. Young had received no discovery and could not have prepared this case for trial within the trailing period. Further, contrary to Ibarra’s claims, neither Miri nor Young offered any solid assurance that Young actually would be available to start the trial. Miri, who appeared on Young’s behalf, admitted he did not have Young’s calendar in front of him and twice requested a continuance, once for an unspecified number of days to a new date that would be day 0 of 15, and, later in the hearing, for a 45-day continuance. When the trial court pressed Miri for a representation that Young would be able to proceed with trial without delay, Miri could represent only that Young was not presently engaged.

Based on this record, the trial court properly could conclude the request for substitution of counsel would disrupt the administration of justice.

Ibarra disparages the trial court’s prediction of a quick trial at the close of the hearing on June 22, 2007. However, the trial court did not suggest Ibarra would get a quick trial but that he would get a “quicker” trial with Mr. Atherton, that is, one that occurred sooner rather than later. This was an appropriate concern given that, in Ibarra’s Marsden motion of June 12, 2007, he complained that Atherton had promised the case would be tried within eight months and it had gone on for much longer than that.

We refer to the sealed reporter’s transcript of the June 12, 2007 Marsden proceeding only to the extent it is relevant to the issue presented by Ibarra. The clerk of this court previously provided the representative of the People a copy of the reporter’s transcript of the Marsden hearing. The People returned the provided copy upon the filing of their brief. (Cal. Rules of Court, rule 8.328(b).)

In any event, the pace of the trial had more to do with the overwhelming evidence of Ibarra’s guilt than any failure on the part of Mr. Atherton to cross-examine witnesses or present defense evidence. Atherton made the best of a bad situation by arguing the People had not proved a pre-existing intent to rape. Indeed, Ibarra does not suggest what favorable evidence might have been elicited from Patricia A.’s son or otherwise.

Moreover, Atherton did cross-examine the victim, Patricia A., on numerous topics including whether she had accused an individual named Leopoldo of rape one month prior to the charged attack. At the side bar, Atherton indicated he had located Leopoldo in prison but Leopoldo had been released and deported. Atherton learned about this rape accusation from Ibarra and his family. Although Patricia A. denied making the accusation, the exchange showed Atherton had communicated with Ibarra and his family and had prepared the case for trial.

For all the forgoing reasons, it is apparent the trial court committed no abuse of discretion in denying Ibarra’s request for substitution of counsel.

DISPOSITION

The judgment is affirmed.

We concur: CROSKEY, J. KITCHING, J.

A previous writ petition filed by Ibarra, case No. B200098, filed June 27, 2007, was denied on July 3, 2007, for failure to state facts sufficient to warrant relief and failure to submit a record adequate for review.


Summaries of

People v. Ibarra

California Court of Appeals, Second District, Third Division
Sep 25, 2008
No. B201889 (Cal. Ct. App. Sep. 25, 2008)
Case details for

People v. Ibarra

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE IVAN IBARRA, Defendant and…

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

Date published: Sep 25, 2008

Citations

No. B201889 (Cal. Ct. App. Sep. 25, 2008)