P. v. Ibarra

Filed 5/3/06 P. v. Ibarra CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Erika Ibarra appeals a judgment after her conviction of battery with serious bodily injury (Pen. Code, § 243, subd. (d)[1] - count one), and assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) - count two). The trial court also found that a special allegation that Ibarra inflicted great bodily injury (GBI) in committing the assault in count two was not true. (§ 12022.7, subd. (a).) The court sentenced her to the upper term of four years on count one and stayed the sentence on count two. (§ 654.) We conclude, among other things, that the court's explicit findings in rejecting the GBI special allegation requires reversal of the conviction in count one. We reverse.

FACTS

A man named Juan hired Marcela Liborio to clean a house. She went back to that residence because she left her sweater there. Ibarra opened the door. Liborio asked her if she had seen her sweater. Ibarra said she "hadn't seen it," that Juan "was her man," and she called Liborio "a slut."

Liborio left the premises and walked down the stairs. Ibarra followed her. In the parking lot Ibarra attacked Liborio, grabbed her hair, bit her finger and punched her twice in the eye. Ibarra bit down and held Liborio's finger in her teeth for several minutes causing the finger to bleed. Eventually a neighbor who came by "pulled [Ibarra] away from [her]."

The finger became "swollen" and "infected." Loborio stayed in a hospital for two nights as doctors treated her infection. She testified that as a result of the attack her finger became "crooked" and sensitive to hot water, and she experienced recurrent eye pain and headaches.

The court sitting without a jury found Ibarra guilty of battery with serious bodily injury. It also found: 1) "the original injury . . . as described by the victim does not suggest the great bodily injury special allegation" and 2) does not meet "the definition of a serious impairment of physical condition."

DISCUSSION

I. Inconsistent Verdicts

Ibarra contends her conviction of battery with serious bodily injury must be reversed because it is inconsistent with the court's explicit findings rejecting the special allegation that she inflicted great bodily injury. (§ 12022.7, subd. (a).) We agree.

The court found Liborio sustained an infection, but "the People did not sustain the burden of proof with regard to the special allegation of great bodily injury." "The terms 'serious bodily injury' in section 243 and 'great bodily injury' in section 12022.7 have substantially the same meaning." (People v. Beltran (2000) 82 Cal.App.4th 693, 696; see also People v. Hawkins (2003) 108 Cal.App.4th 527, 531.)

The Attorney General argues that notwithstanding the inconsistency in the court's findings the conviction must be affirmed. He cites the general rule that "[i]nconsistency in a verdict is not a sufficient reason for setting it aside." (Harris v. Rivera (1981) 454 U.S. 339, 345; see also People v. Santamaria (1994) 8 Cal.4th 903, 911.) The reason for this rule is that jurors often return not guilty verdicts ". . . 'for impermissible reasons'" and that "'inconsistencies often are a product of jury lenity.'" (People v. Palmer (2001) 24 Cal.4th 856, 863.)

But this case was tried by the court sitting without a jury. Appellate courts presume the trial court followed the law where the record is silent and a trial judge renders an inconsistent judgment. (Harris v. Rivera, supra, 454 U.S. at p. 346.) But this presumption may be rebutted. Moreover, "inconsistency" may "constitute evidence of arbitrariness that would undermine confidence in the quality of the judge's conclusion." (Ibid.)

Where a court makes irreconcilable findings of guilt on different counts, appellate courts may presume the inconsistency is the product of lenity. But "[i]f a trial judge makes express contradictory findings upon a fact common to the counts . . . then an apparent inconsistency in judgments is more likely the result of confusion rather than of the exercise of lenity. In such a case, there is a danger that the defendant was not proved guilty beyond a reasonable doubt, and reversal may be warranted." (Haynesworth v. United States (D.C. App. 1984) 473 A.2d 366, 372, italics added.) A conviction is unconstitutional where on the same facts there is an inconsistent judgment on multiple counts, and the court's fact findings support only innocence and are "logically inconsistent" with the judgment. (Masoner v. Thurman (9th Cir. 1993) 996 F.2d 1003, 1005; United States v. Duz-Mor Diagnostic Laboratory, Inc. (9th Cir. 1981) 650 F.2d 223, 227.)

Here the trial court did more than merely render an inconsistent judgment. It made explicit factual findings which cannot support the conviction on count one. In its ruling on the GBI allegation the trial court expressly found that an essential element in count one did not exist. It said, "the Court does not find that the injury as testified to by the victim reached the definition of a serious impairment of physical condition." (Italics added.) But in order to convict Ibarra for battery with serious bodily injury the prosecution had to prove she caused "a serious impairment of physical condition." (§ 243, subd. (f)(4), italics added.) The trial court's finding of no "great bodily injury" was also a ruling that an essential element of count one was missing. (See, e.g., People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 ["great bodily injury, as defined in section 12022.7, is an element of the crime of battery under section 243 subdivision (d)"].)

"[T]he prosecution has the burden of proving beyond a reasonable doubt each essential element of the crime." (People v. Flood (1998) 18 Cal.4th 470, 481.) "'[W]e can have no confidence in a judgment convicting [the defendant] of one crime when the judge, by his acquittal of another, appears to have rejected the only evidence that would support the conviction . . . . [Citation.] '" (Akers v. Commonwealth (2000) 31 Va.App. 521, 531 [525 S.E.2d 13, 18].)

Here there is no room for speculation about the court's intent because its findings on this issue were unambiguous and unequivocal. "The critical concern is that an individual not be convicted for a crime on which the [trier of fact] has actually found that the defendant did not commit an essential element . . . . Allowing such a verdict to stand is not merely inconsistent with justice, but is repugnant to it." (People v. Tucker (1981) 55 N.Y.2d 1, 6 [431 N.E.2d 617, 618-619].) The court's findings conclusively "undermine confidence in the quality of the judge's conclusion" on count one. (Harris v. Rivera, supra, 454 U.S. at p. 346.)

The conviction on count one is reversed.

II. Resentencing

Ibarra contends that on remand the trial court is precluded from sentencing her to the upper term on count two unless it submits the issues involving aggravating sentencing factors to a jury. We disagree.

In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court decided the effect of the United States Supreme Court decisions in United States v. Booker (2005) 543 U.S. 220, Blakely v. Washington (2004) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466, on California's determinate sentencing law. Black held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Black, supra, at p. 1244.)

The conviction on count one is reversed and the cause is remanded for resentencing on count two.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Clifford R. Anderson, III, Judge

Superior Court County of Santa Barbara

______________________________

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Ryan B. McCarroll, Deputy Attorney General, for Plaintiff and Respondent.

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[1] All statutory references are to the Penal Code unless otherwise stated.