P. v. Ybarra

Filed 3/1/07 P. v. Ybarra CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Larrie R. Brainard, Judge. Affirmed as modified.

Edward Ybarra was convicted by a jury of making a criminal threat (Pen. Code,[1]  422), vandalism under $400 ( 594, subds. (a), (b)(2)(A)), battery ( 242), and attempting to prevent and dissuade a witness from testifying ( 136.1, subd. (a)(2)). The court found true three prison priors ( 667.5, subd. (b)), two serious felony prior convictions ( 667, subd. (a)(1), 1170.12, 668), and two prior convictions within the meaning of the three strikes law ( 667, subds. (b)-(i), 1170.12, 668). Ybarra was

sentenced to a total term of 61 years to life.

Ybarra contends the court erred by admitting the victim's statement during a 911 call that Ybarra "had killed people," staying rather than striking prior prison enhancements, and failing to exercise its discretion to strike prior strike convictions on a count by count basis. We agree the section 667.5, subdivision (b) enhancements should be stricken. In all other respects, the judgment is affirmed.

FACTS

In June 2003, Ybarra met Blanca Ibarra through his sister. Ibarra's husband was ill and she needed a handyman to do some work at her home, a trailer. Ybarra offered to help and she hired him to do some work in September. Ybarra befriended Ibarra's husband, who was housebound, and he would visit about three times a week, bringing beer and cigarettes. When Ibarra told Ybarra not to bring cigarettes because her husband had emphysema and was not supposed to smoke, Ybarra laughed and mocked her.

Ybarra started calling Ibarra "darling" or "baby" and looked at her in "a very dirty way." He called her all the time, asking her what she was doing. One time he called and told her he had some of her panties. On more than one occasion, Ibarra saw him going through her things. She told him to return the items he had taken and when he did, she told him to leave and not return.

Ibarra's husband died on December 28, 2003. About a week and a half after his death, Ybarra called. He said he had just learned about her husband's death and wanted to give her a rosary and some candles in commemoration. She agreed when Ybarra promised to behave properly. He came over that day, bringing six candles and a rosary. They lit the candles, prayed, and talked about her husband. When she told him she did not feel well and asked him to leave, Ybarra remained in the house and started to tell her that her husband had asked him to look after her. Ibarra told him that was "nonsense," not true, and again asked him to leave. They argued. Ybarra became furious, broke all the candles, burned a comforter, and yelled at her, "Why don't you let me stay here with you so you can feel better?" He pushed her onto the bed and said he was leaving and would have his mother pick him up. Ybarra remained in the trailer for about four hours after he was asked to leave.

Thereafter, Ybarra continuously called Ibarra, asking how she was and if she needed anything. He came over to the trailer even when she told him she did not want to see him. Sometimes he would be in her trailer when she arrived home.

On February 4, 2004, Ibarra arrived home about 10:00 p.m., after having gone shopping and receiving a ride home from a friend, Robert Barela. Ibarra's nephew was then living with Ibarra in the trailer. Ybarra was inside the trailer. He was very angry and started yelling at Ibarra, asking her whom did she come home with. When she told him Barela had given her a ride, Ybarra slapped her so hard she fell to the floor. She called for her nephew who came out of his bedroom and saw Ibarra lying on the floor. Ibarra was crying and in pain, and the nephew told Ybarra to leave. The police were called and when they arrived at the residence, they told her that Ybarra was very dangerous and that "he always wanted to hit people." This information made Ibarra even more afraid of him.

After this incident, during February and March 2004, Ybarra seldom called. Sometime during this period, Ybarra's mother came to Ibarra's trailer when Barela and other people were present. Ybarra's mother wanted to speak privately to Ibarra so they went outside. Ybarra's mother was crying and very nervous. She told Ibarra to hide, that her son was doing very badly, was on drugs, and had taken a bat with which he intended to kill Ibarra. She urged Ibarra to stay inside her home. Barela, who knew Ybarra's mother, came outside and heard parts of the conversation.

On March 3, 2004, Ibarra was in her trailer packing items because she was moving. Geovanni Romero and his girlfriend were there helping Ibarra when Ybarra called. Ibarra's demeanor immediately changed and she was upset and yelling. She told Ybarra to stop calling her. At Romero's request, Ibarra handed the phone to him. Romero told Ybarra he wanted to see him face-to-face to see if he was man enough to hit a woman Romero was aware Ybarra had hit Ibarra. Ybarra said he was coming over immediately and hung up the phone. Ibarra was very afraid but she did not want to leave the trailer because the door was not secure and her personal belongings were inside.

About an hour later, Ybarra called again. He was very angry, called her a "fucking whore," said he was going to come over to Ibarra's house and that they were "going to fly." "Fly" is used in Mexican slang to mean die; Ibarra interpreted Ybarra's statement to mean she was going to die. Ibarra was "completely afraid." She believed Ybarra was making a serious threat and intended to harm her.

About 45 minutes later, Ybarra called again while he was standing outside her trailer. Ybarra said, "Are you ready, whore?" He broke three of the windows in her trailer. Romero ran outside. Ibarra's nephew and his friend had just arrived and saw Ybarra running away. Romero, the nephew and nephew's friend unsuccessfully tried to find Ybarra. Romero's girlfriend dialed 911. During the 911 call, Ibarra described Ybarra as "crazy" and stated, "He, uh, has killed people."

Ibarra was subpoenaed to testify at Ybarra's preliminary hearing on March 22, 2004. She came to court with Barela, her nephew, Romero and Romero's girlfriend. When she saw Ybarra inside the courtroom, she became afraid. Criminal proceedings were suspended for an examination to determine Ybarra's mental competency, later reinstated, and the preliminary hearing was rescheduled for May 3, 2004.

Ibarra received another subpoena to testify at the preliminary hearing on May 3, 2004. Before that hearing, Ybarra's mother visited her and, as a result of her conversation with Ybarra's mother, Ibarra was afraid and believed she would be harmed if she testified. She did not testify at the preliminary hearing. Nonetheless, following the preliminary hearing, Ybarra was held to answer on all counts.

Ibarra received a subpoena to testify at trial.[2] Before the originally scheduled trial date, she received two letters from Ybarra. In one of the letters, he wrote "a biography" of what was happening in his case, and that he had been offered a plea bargain with a reduced sentence after she had not appeared to testify. He stated he wanted her to send him to prison. He signed the letter "Love X Dad-e." She interpreted the letter as a threat.

Defense

In his defense, Ybarra presented witnesses who testified Ibarra used drugs and had a sexual relationship with Ybarra and Barela while her husband was still alive. A woman who had employed Ibarra as a home care worker testified Ibarra was fired in September 2003 because she was not doing her job, was using drugs, and some jewelry was missing. Ybarra's mother testified she never told Ibarra that Ybarra had a bat and was looking to hurt her or told Ibarra that she would be hurt if she testified against Ybarra.

DISCUSSION

I

Admission of Ibarra's Statement During 911 Call

Ybarra contends the court abused its discretion and denied his due process rights when it admitted Ibarra's statement during the 911 call that Ybarra had killed people. He contends the court should have excluded the evidence under Evidence Code section 352 because its probative value was outweighed by a danger of undue prejudice.

To prove a defendant is guilty of making a criminal threat, the People must prove: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat-which may be 'made verbally, in writing, or by means of an electronic communication device'-was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228; In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) "[T]he statute incorporates a mental element on the part of not only the defendant but the victim as well." (People v. Garrett (1994) 30 Cal.App.4th 962, 966.) "The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)

Statements offered not to prove the truth of the matter asserted, but to prove the declarant's state of mind, are not inadmissible as hearsay and "may be introduced without limitation, subject only to [Evidence Code] section 352. However, the declarant's state of mind must be at issue in the case." (People v. Ortiz (1995) 38 Cal.App.4th 377, 389.)

" 'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' [Citations.] 'Rather, the statute uses the word in its etymological sense of "prejudging" a person or cause on the basis of extraneous factors.' " (People v. Zapien (1993) 4 Cal.4th 929, 958.) "Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant's guilt." (People v. Crew (2003) 31 Cal.4th 822, 842.)

"A trial court has broad discretion in determining whether to admit or exclude evidence objected to on the basis of [Evidence Code] section 352 [citation], and rulings under that section will not be overturned absent an abuse of that discretion [citation]. '[T]he term judicial discretion "implies absence of arbitrary determination, capricious disposition or whimsical thinking." ' [Citation.] '[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered.' " (People v. Mullens (2004) 119 Cal.App.4th 648, 658.)

Ybarra's argument that the probative value of the evidence was outweighed by a danger of undue prejudice is premised on the evidence being admitted as other-crimes evidence. (See Evid. Code,  1101.) Other crimes evidence has been described as inherently prejudicial and as evidence that should be admitted only if the probative value substantially outweighs the danger of undue prejudice. (People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Ibarra's statement to the 911 operator, however, was not offered as other-crimes evidence to prove some fact such as motive, plan or absence of mistake. (See Evid. Code,  1101, subd. (b).) The statement was not offered to prove the truth of the matter that Ybarra had killed people in the past but as evidence of Ibarra's state of mind. The jury was explicitly told of the limited admissibility of the evidence. The court, immediately after the tape of the 911 call was played, instructed the jury: "Ladies and Gentlemen, there was some mention on the tape and the transcript . . . of whether or not the defendant may be on parole or other things. They have some effect upon the mental status including Ms. Ibarra, but that is not evidence that that's actually true. Just that they said it was true."

During redirect, when Ibarra was being examined as to when the police told her Ybarra was dangerous, had a record and the details of his record, the court admonished the jury: "Ladies and Gentlemen, as I stated before, this evidence is only admissible for the effect it has on the mindset or belief patterns of this witness, not to say these things are true. I can tell you clearly he hasn't been convicted of murder or anything like that. So just understand that it's only for that purpose."

Thus, it was made clear to the jury that the evidence was not being admitted as other-crimes evidence, but only as evidence of Ibarra's state of mind. Ibarra's statement was probative to an issue in the case: her fear that Ybarra would harm her and the reasonableness of that fear. Moreover, the court went further and told the jury that Ibarra's belief Ybarra had killed people was not, in fact, true, thus further undermining Ybarra's claim the statement had the prejudicial effect of other-crimes evidence. We presume, in the absence of any evidence to the contrary as in the case here, the jury followed these instructions. (See People v. Cecil (1982) 127 Cal.App.3d 769, 778.)

Finally, we note that even if we were to conclude error occurred, we would not reverse. The evidence showing Ibarra had a reasonable fear of Ybarra was overwhelming. She testified repeatedly about her fear. Other people, including her nephew, Romero and his girlfriend observed Ibarra's fear. Ybarra had hit Ibarra in the past. Both the police and Ybarra's mother had warned Ibarra he was dangerous. Ybarra had threatened her in the past. He made repeated phone calls that evening before he came to her home and broke her windows while he knew that she was inside. There is not the slightest possibility that had Ybarra's statement he had killed people been redacted from the tape of the 911 call, the jury would have concluded Ibarra had no reasonable fear resulting from Ybarra's threat. This was not a close case.

II

Staying vs. Striking Enhancements

Ybarra contends the court erred in staying, rather than striking, two section 667.5, subdivision (b) one-year prior prison enhancements when it imposed two, five-year section 667, subdivision (a) enhancements for the serious felonies resulting in the prison terms.

In People v. Jones (1993) 5 Cal.4th 1142, 1152, the court held it is improper to impose both a section 667, subdivision (a) serious felony enhancement and a section 667.5, subdivision (b) enhancement based on the same serious felony. The Jones court ordered the section 667.5, subdivision (b) enhancement stricken. (See also People v. Solis (2001) 90 Cal.App.4th 1002, 1021; People v. Gonzales (1993) 20 Cal.App.4th 1607, 1610; but see People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9.) Accordingly, the section 667.5, subdivision (b) enhancements should have been stricken.

III

Failing to Exercise Discretion to Strike on a Count by Count Basis

Ybarra contends we should remand to allow the court to strike his prior strike convictions on a count by count basis as permitted by the Supreme Court's decision in People v. Garcia (1999) 20 Cal.4th 490, 503-504.

Ybarra filed a written motion seeking to have the court strike his two prior strike convictions. He argued that at least one of his strikes should be stricken, given his supportive family, successful employment history, his mental health problems, and the fact that it appeared there was more of a relationship between Ybarra and the victim than mere friendship. He also submitted employment stubs and letters from family members and former employers attesting to his good work ethic, honesty and good character. In opposition, the prosecutor pointed to Ybarra's lengthy criminal record and his addiction to controlled substances which, given his mental health status, rendered him dangerously unpredictable.

The probation report shows Ybarra's criminal history going back to 1978 when he was a juvenile. His adult criminal record involves multiple offenses with repeated violations of parole and probation. Two offenses involved entering women's homes, waking them at night in their bedrooms and either touching the victim or expressing a desire to have sex. In another offense, Ybarra had dated the victim for about a month, went to her apartment when he was intoxicated, was refused entry, threatened to throw the victim off the balcony, pushed the victim to the ground when she tried to leave, and attempted to gain entry to her home after she had left. While he was being transported to the jail in that case, Ybarra said, "Seven days after my release date she will have five bullets in her head, but it won't be from my gun."

The court rejected defense counsel's suggestion there was some intimate relationship between Ybarra and the victim, noting "it's not the first time he's done this kind of thing. He's done it on prior occasions." The court declined to strike any of Ybarra's prior convictions, stating: "I do not feel it would be appropriate for me to strike a strike. I do not have the basis for doing so. If I had a choice, I would run the two counts concurrently, but I don't really have a choice . . . ."

The court's discretion to strike prior strike convictions "is not boundless but must be exercised strictly within the requirements of section 1385." (People v. Smith (1996) 50 Cal.App.4th 1194, 1197.) Section 1385 " ' "requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal." ' " (People v. Superior Court (Romero) (1996)13 Cal.4th 497, 530, italics omitted; People v. Williams (1998) 17 Cal.4th 148, 159.) In exercising its discretion, the court should consider "whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, at p. 161.)

In People v. Garcia, the court, in deciding that a court could dismiss strike conviction allegations on a count-by-count basis, stated: "In many cases, 'the nature and circumstances' of the various felonies described in different counts will differ considerably. A court might therefore be justified in striking prior conviction allegations with respect to a relatively minor current felony, while considering those prior convictions with respect to a serious or violent current felony." (People v. Garcia, supra, 20 Cal.4th 490, 499.) The Supreme Court also noted that a trial court could take into consideration whether the defendant's prior convictions arose from a single period of aberrant behavior. (Id. at p. 503.) If the "circumstances indicate that 'defendant may be deemed outside the [Three Strikes] scheme's spirit,' at least 'in part,' " then the Supreme Court reasoned, the trial court may properly exercise its discretion to dismiss a prior strike conviction as to a particular count. (Ibid.)

A trial court is presumed to know the applicable law allowing discretion to strike priors. (See People v. Mosley (1997) 53 Cal.App.4th 489, 499.) " ' "The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' " (People v. Bishop (1997) 56 Cal.App.4th 1245, 1249-1250, quoting People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Here, none of the crimes were trivial. Ybarra threatened a woman, causing her great fear, and violently broke the windows in her home while she was inside. The crimes committed on March 3 and 4 were an escalation of conduct occurring over a period of months from mocking behavior to harassing phone calls to hitting and pushing the victim. Even after he was arrested, Ybarra continued to harass the victim through letters and through his mother, with the result the victim was afraid to testify against him. This was not merely, as defense counsel argued in his written motion, "nothing more than an unhealthy relationship between two individuals who are presently incapable of exhibiting the normal interactive behaviors that society expects from its citizens." The facts, as found by the jury and the court, do not support a finding the victim did anything to provoke Ybarra's behavior. Nor is this a situation where the nature and circumstances of any one count were significantly different; all the counts related to Ybarra's threatening and dangerous behavior toward the victim.

Moreover, Ybarra's criminal record stretches back to when he was a juvenile and shows a pattern of continuous criminal conduct. He repeatedly violated probation and parole. The records show a pattern of recidivist conduct.

Additionally, there was evidence in the record, including Ybarra's mother's statements to Ibarra indicating Ybarra abused drugs and when he did so, he became dangerous. Defense counsel acknowledged that Ybarra's "mental health issues . . . affect his ability to comport himself . . . ." At the sentencing hearing, when defense counsel stated he knew Ybarra took his medication, Ybarra interrupted and stated, "No, I don't." Ybarra does not point to anything in the record indicating he had ever made a serious attempt to deal with his substance abuse and mental health issues or was likely to do so in the future. This evidence further supports a finding Ybarra's character had dangerous aspects and he was likely to reoffend.

Further, nothing in the record supports a conclusion the court was unaware of its discretion to strike on a count-by-count basis. Thus, we must presume the court was aware of its discretion and declined to exercise it.

In sum, the circumstances of the offenses, criminal history, character, and future prospects support a finding Ybarra was an individual well within the intended scope of the three strikes law.

DISPOSITION

The matter is remanded to the trial court with directions to strike the two section 667.5, subdivision (b) enhancements, to prepare an amended abstract of judgment and forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

McINTYRE, J.

O'ROURKE, J.

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

[2] On July 6, 2004, criminal proceedings were again suspended for a mental competency examination.