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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ARMANDO IBARRA,

Defendant and Appellant.

B320679

Los Angeles County

Super. Ct. No. KA048625-02

PURPORTED APPEAL from an action or inaction of the 

Superior Court of Los Angeles County, Juan Carlos Dominguez, 

Judge. Dismissed.

Gary V. Crooks, under appointment by the Court 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 

Attorneys General, for Plaintiff and Respondent.

_________________________
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 issue an 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 fellow gang member Victor Castaneda went 

to the 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 started

shooting. Two of the 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 firebombs 

or Molotov cocktails also were thrown at the house.

A jury convicted Ibarra of five counts of attempted willful, 

deliberate, and premeditated murder, arson of an inhabited 

structure, and shooting at an inhabited dwelling. The jury 

found true gang allegations under Penal Code section 186.22, 

subdivision (b)(1),

2 as well as allegations 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. Castaneda et al. (May 14, 2004, B155465)

[nonpub. opn.] (Ibarra I).

2 References to statutes are to the Penal Code.
3

At a bench trial, the court found Ibarra had suffered a prior

strike conviction for attempted murder. The court sentenced 

Ibarra to five consecutive terms of life in the state prison. The 

court doubled the minimum term of 15 years for the attempted 

murders to 30 years each because of Ibarra’s strike prior. The 

court added terms of 25 years to life for the two counts in which

the jury had found true the allegation that a principal discharged 

a firearm causing great bodily injury to the victims. The court 

added terms of 20 years for the three counts in which the jury 

had found true the allegation that a principal discharged a 

firearm. The court also imposed determinate terms of 10 years 

on each of the five attempted murder counts for the gang 

enhancements. The court sentenced Ibarra to a determinate 

term of 10 years for the arson and stayed the sentence for 

shooting at an inhabited dwelling.

A different panel of this court affirmed the judgment but 

ordered it modified to correct the sentence. The appellate court 

rejected Ibarra’s contention that the sentences on the attempted 

murder counts should have been seven years to life. The court 

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 an additional

10 years for the gang enhancement on those life counts. Because 

the court sentenced Ibarra to life terms on the attempted murder 

counts, “ ‘then the 15-year minimum parole eligibility applies 

rather than a determinate, consecutive enhancement[ ].’ ” 

(Ibarra I.)

When the trial court received the remittitur, it ordered 

the abstract of judgment corrected to vacate the 10-year terms 

for the gang enhancements. The court stated, “Remainder of 
4

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

an amended abstract of judgment reflecting that modification be

forwarded to the CDCR. The amended and corrected abstract 

of judgment is dated 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 the court received the letter. In August 2021, 

Ibarra apparently contacted the court inquiring about the “status 

of his case.” A minute order dated August 23, 2021, states the 

court’s file did not contain a February 1, 2021 communication 

from the CDCR and asked Ibarra to provide a copy. In a 

handwritten note dated September 2, 2021, Ibarra said he 

was enclosing a copy.

The CDCR letter begins, “A review of the documents 

delivered with [Ibarra] indicates the Abstract of Judgment and/or 

Minute Order may be in error, or incomplete, for the 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—1st

Degree [sic],

4 with 30 years to Life doubled 

3 The Attorney General gives two dates for the amended 

abstract: September 14, 2014 and September 24, 2014. The 

Attorney General is mistaken.

4 While the original and amended abstracts do indeed refer 

to the attempted murder counts as “1st degree,” there is no such 

crime as “first degree attempted murder.” Rather, a finding that 

the attempted murder was willful, deliberate, and premeditated

results in a life rather than a determinate sentence. (People v. 
5

pursuant to PC 667(b)-(i) or 1170.12. The 

Court 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 underlying felony is punishable by 

life imprisonment, the defendant shall not be 

paroled until a minimum of 15 years have 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 minimum of 15 calendar years have been 

served, we have recorded 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 the Court’s intent, 

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 court checked a box stating, “Defendant’s 

request is GRANTED.” Under “Further 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 (with the correct date 

Lee (2003) 31 Cal.4th 613, 616; People v. Arias (2010) 182 

Cal.App.4th 1009, 1012, 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 trial court.

On May 12, 2022, Ibarra filed a notice of appeal. Next to 

“DATE of the order or judgment” Ibarra wrote, “March 14, 2022.” 

Ibarra checked box 2.b., “Other,” adding “Resentencing Hearing

Affecting Substantial Rights.”

DISCUSSION

Ibarra contends the trial court “ ‘granted’ [his] request 

to correct the abstract by doing nothing to correct 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 indicated on both the original 2001 Abstract 

of Judgment and the amended 2004 Abstract of Judgment.” 

Ibarra lists various statutes our Legislature has passed as well 

as propositions voters have approved in recent years. He asserts, 

“In view of this policy sea-change in California, the trial court’s 

cursory, unreported consideration of the instant matter, there 

is no way to know if the court properly analyzed what would 

best serve the interests of justice in this case.” Ibarra complains 

he “was given no opportunity [to] have counsel, or to be present, 

or to have notice of when his matter would be considered by 

the court.” These contentions are meritless.

We acknowledge the CDCR’s letter is not a model of clarity. 

It is somewhat difficult 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 appellate

court confirmed the minimum parole eligibility date is 15 years 
7

because of the gang allegation,5 doubled because of the strike 

prior, making that eligibility date 30 years. If that’s not what 

you had in mind, judge, please let us know.”

Contrary to Ibarra’s contention, there 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 

appellate 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 enhancements. 

The trial court followed those instructions and corrected the 

abstract as of September 24, 2004.

It appears the trial court may have interpreted the CDCR’s 

letter as asking for a copy of the September 2004 corrected 

abstract. In “granting” Ibarra’s request, the court seems to have

meant that the court would send the corrected 2004 abstract 

to the CDCR and to Ibarra. Ibarra has not identified any error 

in the corrected abstract—much less in the sentence itself—

now that the 10-year terms for the gang enhancements have 

been vacated, and we discern none.

The Attorney General cites People v. Magana (2021) 63

Cal.App.5th 1120 (Magana). In that case, the CDCR “notified 

the trial court of potential errors” in the abstracts of judgment 

for defendant Magana. (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 minimum parole eligibility date 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 total of four. (Id. at pp. 1122-1123.) 

The court “set the matter on calendar” and Magana filed 

a motion for a “ ‘sentencing hearing,’ ” contending the “hearing” 

was for the recall of his sentence and resentencing under 

section 1170, subdivision (d).6 (Magana, supra, 63 Cal.App.5th

at p. 1123.) The prosecution opposed the motion, contending 

the CDCR letter was “ ‘merely an invitation to correct a technical 

error on the abstract.’ ” (Id. at pp. 1123-1124.) The court denied

Magana’s request and the court of appeal affirmed, stating, 

“[B]ecause the CDCR did not recommend a recall, the trial court 

6 Former section 1170, subdivision (d)(1) authorized a trial 

court, at any time upon the recommendation of the Secretary 

of the CDCR, to recall a defendant’s sentence and resentence 

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, 

subdivision (d)(1) to new section 1170.03. (People v. McMurray

(2022) 76 Cal.App.5th 1035, 1038, 1040.) Effective June 30, 2022,

the Legislature renumbered section 1170.03 to section 1172.1. 

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

provides that, if the resentencing request is from the Secretary 

of the CDCR, there shall be a presumption favoring recall 

and resentencing that may be overcome only if a court finds 

the defendant is an unreasonable risk of danger to public safety. 

(Braggs, at p. 818.) The statute incorporates the definition 

of “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 list of

eight particularly violent or serious felonies known as “ ‘super 

strikes.’ ” (§ 1172.1, subd. (b)(2); Braggs, at p. 818; see § 667, 

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

lacked authority to recall defendant’s sentence.” (Id. at pp. 1124-

1125.) As the court had no jurisdiction to grant Magana’s motion

for a resentencing hearing, the appellate court dismissed the 

appeal. (Id. at p. 1128.)7

The result here must be the same. Ibarra argues Magana

is distinguishable because, there, the court “put the matter on 

calendar and entertained briefing by defense counsel.” Nowhere 

in Magana is there any reference to an appointment of counsel 

for Magana. The opinion does not even say Magana had counsel

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

63 Cal.App.5th at p. 1123.) That the court calendared the matter 

and accepted briefs does not mean those procedures are required, 

especially when the CDCR merely sends a letter setting forth 

its understanding of the abstract or minute order and asking 

the court to “please advise this office” “[i]f this is not in 

accordance with the Court’s intent.”

Ibarra cites two cases that involved 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 by

the Secretary. Those cases thus have no application to this case.

In sum, neither the CDCR nor Ibarra has identified 

any error in Ibarra’s sentence, modified on remand to strike 

the determinate terms for the gang enhancements. (See People 

v. Fiu (2008) 165 Cal.App.4th 360, 367, 390 [defendant convicted 

7 Cf. People v. King (2022) 77 Cal.App.5th 629, 633 [trial 

court had no jurisdiction to entertain defendant’s motion, filed 

more than 30 years after he began serving his sentence, to vacate 

erroneous sentence; appellate court therefore had no jurisdiction 

to entertain his appeal].
10

of second degree murder with strike prior; error for trial court 

to impose 10 years for gang enhancement; “[i]nstead, the court 

should have imposed a limitation upon defendant’s minimum

parole eligibility of 15 years, pursuant to section 186.22, 

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

conviction”].)8 The trial court had no jurisdiction to grant Ibarra 

resentencing under former section 1170, subdivision (d), or 

otherwise. Accordingly, that the trial court did not specifically 

reply to the CDCR’s letter did not affect Ibarra’s substantial

rights and it was not an appealable order. (Magana, supra, 

63 Cal.App.5th at p. 1128; § 1237, subd. (b).) We therefore

dismiss Ibarra’s appeal.

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

Ibarra’s argument is unclear: he seems to contend Williams

stands for the proposition that the 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, Williams was convicted 

of crimes (robbery, kidnapping, and assault by means of force 

likely to cause great bodily injury) that—unlike the offenses here

—are not life crimes. Williams received life sentences in that 

case because the convictions constituted third strikes. (Id. at 

p. 736.) To double the minimum parole eligibility dates based 

on two or more prior strikes—as opposed to one prior strike, 

as here—would be impermissible double counting.
11

DISPOSITION

Armando Ibarra’s purported appeal is dismissed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.