Filed 8/15/23 P. v. Ibarra CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent

,

v.

ARMANDO IBA RRA

,

Defend ant and Appellant

. B 3 20679

Los Angeles County Super. Ct. No. K

A 048625

- 02

PURPORTED APPEAL from an action or inaction of the Superior Court of Los Angeles County, Juan Carlos Dominguez

, Judge

. Dismissed

.
Gary V. Crooks , under appointm ent by the Co urt of Appeal,
for Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters , Chief Assistant Attorney General, Susan Sullivan Pithey , Assistant Attorney General, Noah P. Hill and Steven E. Mercer , Deputy
Attorne ys General, for P laintiff and Res pondent.

_________________________2 Defendant and appellant Armando Ibarra purports to appeal from the trial court’s response to a letter of inquiry from the California Department of Corrections and Rehabilitation (CDCR) . Because the court did not issu e a n order

— much less

an appealable order

— we dismiss the appeal.
BACKGROUND
As the facts of Ibarra’s crimes are not necessary to our analysis, we summarize them only briefly. 1 On December 15,
2000 , Ibarra and his f ellow gang member Victor Cast aneda went

to th e home of Ruby H., the mother of Castaneda’s baby . Ruby and Castaneda had broken up some months earlier. In addition to Ruby, four other people were in the home. Ibarra and Castaneda walked up to the house with rifles and start ed
shootin g. Two of th e occupants were hit by bullets and a third

person was injured by “flying glass and chips of ceramic tile, caused by bullets crashing into the bathroom.” Two fire bombs

or Molotov cockta ils also were thrown at the hous e. A jury convicted Ibarr a of five co u nts of attempted willful, deliberate, and premeditated murder, arson of an inhabited structure, and shooting at an inhabited dwelling. The jury
found tr ue gang allegations unde r Penal Code section 186.22, subdivision (b)(1)

, 2 as well as alleg ations that a principal used

a firearm , discharged a firearm , and

— as to three victims

— discharged a firearm causing great bodily injury

.

1 We take the facts from our opinion in Ibarra’s direct appeal, People v. Castan eda et al. ( M ay 14 , 2004, B155465 ) [no npub. opn.] ( Ibarra I ).

2 References to statutes are t o the Penal C ode

.3 At a bench trial , the court found Ibarr a had suffered a prior
strike conviction for attempted murder. The court sentenc ed
Ibarra to five consecutive terms of life in the state prison. The
court doubled the minimum term o f 15 years for the attempted
murd e rs to 30 years each because of Ibarra’s strike prior. The court added terms of 25 years to life for the t wo counts in w hich the j ur y had found true the allegation that a principal discharged a firearm causing great bodi ly injury to the victims. The co u rt added terms of 20 years f or the t hree counts in which the jury had found true the allegation that a principal discharge d a
firearm. The court also imposed determinate terms of 10 years on each of the five attempted murder counts for the gang
enhancement s

. The court sentenced Ibarra to a determinate term of 10 years for the arson and stayed the sentence for shooting at an inhabited d w elling

. A different panel of this court affirme d the j udgment but
ordered it modified to correct the se ntence

. The appellate court rejected Ibarra’s contention that the sentences on the attempted murder counts should have been seven years to life. The c o urt explained the true finding on the gang enhancement increased the minimum parole eligibility term to 15 years. But, the

court continued, the trial court erred in imposing a n additional 10 years for the gang enhancement on those life counts

. Because

t h e court sentenced Ibarra to life terms on the attempt e d murder

counts , “ ‘ then the 15

- year minimum paro le eligibility applies rather than a determinate, consecutive enhancement [ ]

. ’ ” ( Ibarra I

.) When the trial court received the remittitur, it ordered

t h e abstract of judgment corr ected to vacate the 10

- year terms for the gang enhancem en ts. The court stated, “Remainder of4

sentence to remain in full force and effect.” The court ordered

an amended abstract of judgment reflecting that modificat ion be
forwa r ded to the CDCR

. The amended and corrected abstract
of judgment is dat ed September 24, 2004. 3 Some 17 years later

, on February 1, 2021, CDCR sent

a letter to the trial judge, who had retired. It’s unclear who

— if anyone

— at th e court received the letter. In August 2021
, Ibarra apparently contacted the court inquiring about the “status
of his case.” A minute ord er dated August 23, 2021, stat es the

court ’s file did not contain a February 1, 2021 communication
from the CDCR a nd ask ed Ibarra to p rovide a cop y

. In a handwritten note dated September 2, 2021, Ibarra s aid he

was enclosing a copy.
The CDCR letter begins, “A review of the documents delivered with [Ibarra] indicates the Abstract of Judgment an d/or Minute Order may be in error, or incomp lete, for th e following

reasons .” The letter continues,

“The Indeterminate Amended Abstract of Judgment reflects Counts 6, 7, 8, 9, and 10

,

as PC 664/187(A) Attempted Murder

— 1 st Degree [ sic ]

, 4 with 30 years to L ife doubled

3 The Attorney General gives two dates for the amended abstract : September 14, 2014 and September 24, 2014

. The Attorney Ge neral is mistaken

.

4 While the original and amended abstracts do indeed refer to the attempted murder counts as “ 1st degree,” t here is no such crime as “first degree attempted murder.” Rather, a finding that the attempted murder was willful, deliberate , and premeditated

re s ults in a l i fe rather than a determinate sentence. ( People v.5 pursuant to PC 667(b)

- (i) or 117 0.12. The
C o urt of Appeal (Page 37) states [,] ‘ However, the gang enhancement statute increases that minimum parole eligibility term to 15 years

. Section 186.22, subdivision (b)(5)

, provides
that if the under lying fel ony is punishable by life imprisonment

, the defend a nt shall not be paroled until a minimum of 15 years hav e been
served

. ’ As the term in Counts 6, 7, 8, 9, and 10, coincides with being sentenced pursuant

to PC 186.22 (b)(5) which is punishable in the

state prison for life shall not be paroled until

a mini m um of 15 calendar years have been served, we have recor ded Counts 6, 7, 8, 9,
and 10 as PC 664/187 (a) sentenced pursuant

to PC 186.22(b)(5) to 30 years to Life doubled pursuant to PC 667 (b)

- (i) or 1170.12. If this
is not in accordance with th e Court’s in t ent, please advise this office.” On March 14, 2022, the trial court filed a fill

- in

- the

- blanks
form stating it had “received, read and considered” Ibarra’s letter of September 2, 2021

. The form stated, “Defendant is requesting:
correction of AOJ .” The c ourt checked a box stating, “Defendant’s request is GRANTED.” Under “F urther instructions, ” the

court wrote, “Please send [defendant] and CDCR a copy of
corrected AOJ dated 9

- 27 [ sic ]

- 04 .” A minute order also dated
March 14, 2022 stated the same thing ( w ith the correct date

Lee (2003) 31 Cal.4 th 613, 616; People v. Ari as (2010) 182 Cal.App.4 th 1009, 101 2, fn. 2 , 1017 .)6

of September 24, 2004 for the amended abstract of judgment). The record on appeal does not contain any other response to
the CDCR from the tr ial court. On May 12, 2022, Ibarra filed a notice of appeal. Next to “DATE of t he order or j udgment” Ibarra wrote

, “ March 14, 2022. ” Ibarra checked box 2.b., “Other,” adding “Resentencing Hearing Affecting Substantial Rights.”
DISCUSSION
Ibarra contends t he trial court “ ‘granted’ [his] request

to correct the abstract by doing nothi ng to correc t the abstract .” Ibarra says, “From this record it is not possible to ascertain
the legal basis of the 30

- year minimum number of years before parole that was indica ted on both the original 2001 Abstract
of Judgment a nd the amended 2004 Abstrac t of Judgmen t .”
Ibarra lists various statutes our Legislature has passed as well

as propositions voters have approved in recent years . He asserts, “In view of this po licy sea

- change in California, the trial court’s cursory, unreported consideration of th e instant ma t ter, there
is no way to know if the court properly analyzed what would
best serve the interests of justice in this case.” Ibarra compl ains he “w as given no opportunity [ to ] have counsel, or to be present,

or to have notice of when his matter would be con s idered by
the court.” These contentions are meritless. We acknowledge the CDCR ’s letter is not a model of cl arity.
It is some what diffi cult to discern what exactly the CDCR is asking the trial court to confirm. It seems the CDCR is saying:

“ We see the trial court sentenced Ibarra to 30 years to life on
each of the attempted murder counts. We note the appel l ate

court confirmed the minimu m parole eligibility date is 15 years7

because of the gang allegation, 5 doubled because of the strike prio r, making th a t eligibility date 30 years. If that’s not what you had in mind, judge, please let us know.” Contrary to Ibarra’s contention, t here is no mystery as

to the “ ‘ legal basis ’ ” for the 30

- year minimum parole eligibility
date. The legal basis is plainly set forth in this division’s May 2004 opinion on direct appeal. The only change the appell ate court ordered the trial court to make in Ibarra’s

sentence was to vacate the determinate 10

- year terms added to
the five attempted murder counts for the gang enhanc e ment s

. The trial court followed those instructions and corrected the
abstract as of Se ptember 24, 2004. It app ears the tri al court may have interpreted the CDCR’s letter as asking for a copy of the September 2004 corrected
abstract. In “gran ting” Ibarra ’ s request, the court seems to ha ve meant that the court would send the corrected 2004 abstract

to the CDCR and to Ibarra. Ibarra has not identified an y error in the corrected abstract

— much less in the sentence itself

—

now that the 10

- year term s for the ga n g enhancements have
been vacated

, and we discern none. The Attorney General cites People v. Magana (2021) 63
Ca l.App.5 th 11 20 ( Magana )

. In that case , the CDCR “notified
the trial court of potential errors” in the abstract s of judgment
for def endant Magan a

. ( Id . at p. 1122.) On direct appeal, the
court had ordered two of four prior prison term enhancements
stricken . On remand, however, both the determinate and the

5 As we have said, the appellate court rejected Ibarra’s contention that the m inimum parole el ig ibili ty da t e on those counts should have been seven rather than 15 years. ( Ibarra I .)8

indeterminate abstracts of judgment listed two prior prison terms, for a t o tal of four

. ( I d . at pp. 1122

- 1123.) The court “set the matter on calendar” and Magana filed

a motion f

or a “ ‘sentencing hearing,’ ” contending the “hearing”
was for the recall of his sentence and resentencing under
section 1170, subdivision ( d). 6 ( Maga na , supra , 6 3 Ca l.App.5 th

at p. 1123.) The prosecution opposed the motion, contending
the CDCR letter was “ ‘merely an invitation to correct a technic al
error on the abstract.’ ” ( Id

. at p p. 1123

- 1124.) The co urt denied Magana’s request and t he court of appeal affi r med, stating, “[B]ecause the CDCR did not recommen d a recall, the trial court

6 Former section 11 70, subdivision (d)(1) authorized a trial
court , at any time upon the recommendation of the Secretary of the CDCR, to recal l a de fendant’s sentence and resente n ce the defendant. Assembly Bill No. 1540 (2021

- 2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1

- 7)

, effective January 1, 2022, moved the recall and resentencing provisions of former section 1170

, subdivis ion (d)(1) to new section 1170.03

. ( Peopl e v. M cM urra y (2022) 76 Cal.App.5 th 1035, 1038, 1040.) Effective June 30, 2022, the Legislature renumbered s ection 1170.03 to section 11 7 2.1

. ( People v. Braggs (2022) 85 Cal.App.5 th 809
, 818 .) Section 1172.1

pro vides that, if the resentencing request i s from the Se c retary of the CDCR, there shall be a presumption favoring recall and resentencing that may be ov ercome only if a court finds the defendant is an unreasonable risk of danger to public safety. ( Braggs , at p. 818 .) The statu te incorporates the defini tion

o f “unreasonable risk of danger to public safety ” set forth in section 1170.18, subdivision (c) as an unreasonable risk the defendant will commit a new offense contained within a li st of eight particularly violent or serious felonies known as “ ‘ super strik e s. ’ ” ( § 1172.1, sub d. (b)(2); Braggs , at p. 818; see § 667, subd

. ( e)(2)(C)(iv) ; People v. Valencia (2017) 3 Cal.5 th 347, 351.)9

lacked authority to recall defendant’s sentence.” ( Id

. at p p

. 1124

- 1125.) As the court had no jurisdiction to grant Magana’s motion for a resentencing hearing, the appellate c o urt dismissed the appeal. ( Id . at p. 1128.) 7
The resul t here must be the same. Ibarra argues Magana is distinguishable because, there, th e cou rt “put the matter on
calendar and entertained briefing by defense counsel.” N owhere
in Magana i s there a ny r e ference to an appointment of counsel for Magana. The opinion does not even say Magana had coun sel

— only that he “filed a brief” and “a motion.” ( Magana

, supra , 63 Ca l.App.5 th at p. 1123.) That the court calendared the matter and accepted br iefs does no t mean those procedures are requi red

, especia lly when the CDCR merely sends a letter setting fort h
its understanding of the abstract o r minute order and asking
the court to “please advise this office” “[i]f this is not in
accordance with the Co urt’s intent

. ”
Ibarra cites two cas es that invo lved a recommendation under former section 1170, subdivision (d) by the Secretary of
the CDCR that the trial court recall the defendant’s sentence and
resentence him. Here, there was no such recommendation b y the Secret a ry. Those ca ses thus hav e no application to this case. In sum, neither the CDCR nor Iba rra has identified

any error in Ibarra’s sentence, modified on remand to strike
the determinate terms for the gang enhancement s

. (See People

v

. Fiu (2008 ) 165 Cal.Ap p .4 t h 360, 367, 390 [defendant c onvicted

7 Cf. People v. King (2022) 77 Cal.App.5 th 629, 633 [trial court h ad no jurisdiction to entertain defendant’s mo tion, filed

m ore than 30 years after he began serving his sent e nce, to vacate

erro neous sentence; appellate court therefore had no jurisdiction to entertain his appeal].10

of second degree murder with strike prior; error for tr i al court

to impose 10 years for gang enhancement ; “[i]nstead, the court should have imposed a limitation upon defendant’s minimum parole eligibilit y of 15 year s , pursuant to secti on 186.22,

s ubdivision (b)(5), doubled to 30 years due to his prior strike

c o nviction”].) 8 The trial court had no jurisdiction to grant Ibarra resentencing under former section 1170, subdivision (d), or
otherwise. Accordin gly , that th e trial court did no t specifical ly reply to the CDCR’s letter did not affect Ibarra’s substanti al rights and it was not an appealable order. ( Magana

, supra , 63 Cal.App.5 th at p. 1128; § 1237 , subd. (b) .) We therefor e dismiss Ibarra’s appeal.

8 Ibarra cites People v. Williams (2014 ) 227 Cal.App.4 th 733

. Ibarra’s argument is u nclear: he s eems to contend Williams stands for the proposition that t he court need not double the 15

- year term notwithstanding the strike prior. Ibarra is mistaken. First, the Williams case never addressed that issue,

or even identified it as an issue

. Second, W i lliams was convicted of crimes (robbery, kidnapping, and ass ault by means of force likely to cause great bodily injury) that

— unlike the offense s here

— are not life crimes. Williams received life s entences in that case because the convictions constituted t hird stri kes. ( Id . at
p. 73 6.) To double the minimum parole eligibility dates b ased

on two or more prior strikes

— as opposed to one prior strike

, as here

— would be impermissible double counting.11 DISPOSITION
A rmando Ibarra’s pur ported appea l is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON , J.

We concur:

EDMON, P. J.

LAVIN , J.