P. v. Ybarra
Filed 12/31/12 P.
v. Ybarra CA2/1
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
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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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ERIK YBARRA,
Defendant and Appellant.
B232640
(Los Angeles County
Super. Ct. No.
NA081466)
APPEAL
from a judgment of the Superior Court of
County. James B.
Pierce, Judge. Conditionally reversed
and remanded with directions.
______
Verna
Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey,
Mary Sanchez, and Taylor Nguyen, Deputy Attorneys General, for Plaintiff
and Respondent.
______
Erik Ybarra challenges his
convictions on counts of kidnapping, rape, and forcible oral copulation. We conditionally reverse and remand for a
hearing on the timeliness of the charges.
BACKGROUND
The
information filed on December 17, 2009, charged Ybarra with one count of
kidnapping for sexual purposes in violation of subdivision (d) of Penal Code
former section 208
title="">[1]
(count 1), one count of forcible rape in violation of subdivision (a)(2) of
former section 261 (count 2), and one count of forcible oral copulation in
violation of subdivision (c) of former section 288a (count 3). As to counts 2 and 3, the information also
alleged under subdivisions (b), (c), and (e) of former section 667.61 that
Ybarra had kidnapped the victim in violation of former section 207. It further alleged under subdivision (e)(4)
of former section 1203 that Ybarra had been convicted of felonies twice in California.
Ybarra
pleaded not guilty and denied all allegations.
The charges were tried to a jury, which convicted Ybarra on all counts.
The
trial court sentenced Ybarra to a total of 27 years in
follows: the upper term of 11 years as
to count 1, plus the upper term of eight years as to count 2, plus
the upper term of eight years as to count 3, all sentences to run
consecutively. The court also credited
Ybarra with 880 days of presentence custody (766 days actual time and 114
days good time/work time) and imposed various statutory fines and fees.
The
evidence introduced at trial showed the following facts: On January 28, 1995,
when T.A. was standing in the parking lot at a gas station, a man ordered her
at knife point to get into his car. The
man drove her to an alley, punched her in the face, pushed her out of the car,
forced her to orally copulate him, and raped her vaginally. He then drove away, leaving her lying on the
ground. A passing motorist took T.A. to
a police station, from which she was taken to a hospital and given a rape
examination, including the collection of vaginal fluid samples. Subsequent DNA analysis of those samples
matched a DNA sample taken directly from Ybarra.
Ybarra
testified in his own defense. He
admitted having sex with T.A. but claimed it was consensual. He claimed that T.A. approached his car and
told him that she was “working†(i.e., as a prostitute), they agreed on a price, she got into his car,
and they drove to a different location because there was a heavy police
presence in the area in which he picked her up.
After they had sex and Ybarra paid her, he dropped her off at a nearby
intersection. He did not have a knife
and did not strike her. In her testimony
during the prosecution’s case in chief, T.A. admitted that she was convicted of
prostitution in December 1995.
DISCUSSION
I. Statute of Limitations
Ybarra
argues that count 1 is barred by the statute
of limitations and that the record contains insufficient evidence to show
whether counts 2 and 3 are untimely as well.
We disagree with the first argument but agree with the second, and we
accordingly remand for the trial court to conduct a hearing to determine
whether counts 1 through 3 are timely.
Ybarra
did not raise the statute of limitations as a defense in the trial court, but
he argues that under People v. Williams
(1999) 21 Cal.4th 335, 341 (Williams),
he may raise the issue for the first time on appeal. Respondent does not dispute the point, and we
agree with Ybarra.
The
information charged Ybarra in count 1 with violation of subdivision (d) of
former section 208, in count 2 with violation of subdivision (a)(2) of former
section 261, and in count 3 with violation of subdivision (c) of former section
288a. The parties agree that all three
charges are untimely unless the statute of limitations was tolled or extended
under subdivision (g) of former section 803.
described in this chapter, a criminal complaint may be filed within one year of
the date on which the identity of the suspect is conclusively established
by DNA testing, if both of the following conditions are
met: [¶] (A) The crime is one that is described in
subdivision (c) of Section 290. [¶] (B) The offense
was committed prior to January 1, 2001, and biological evidence collected in
connection with the offense is analyzed for DNA type no later than January 1,
2004, or the offense was committed on or after January 1, 2001, and biological
evidence collected in connection with the offense is analyzed for DNA type no
later than two years from the date of the offense.†(Former § 803, subd. (g)(1).)
The
charged crimes were committed in 1995.
Therefore, in order for the charges against Ybarra to be timely, they
must be among the crimes described in subdivision (c) of former section 290,
and the biological evidence collected from T.A. must have been analyzed for DNA
type no later than January 1, 2004.
As
to count 1, Ybarra argues that the charged crime is not listed in subdivision
(c) of former section 290. He reasons as
follows: Among the crimes described in
subdivision (c) of former section 290 is a violation of “Section 207 or 209
committed with intent to violate Section 261, 286, 288, 288a, or 289.†Former section 209
prohibits the kidnapping of “any individual to commit . . . rape
. . . [or] oral copulation.â€
(Former § 209, subd. (b)(1).)
In 1995, however, when the charged offenses were committed, the crime of
kidnapping to commit rape or oral copulation was codified in former
section 208, subdivision (d).
name="_ftnref6" title="">[6]
the statutes that were in effect in 1995, when the charged crimes were
committed, so it charged him with kidnapping for sexual purposes under former
section 208, not the 1995 version of section 209. But former section 208 is not listed in
former section 290, so, according to Ybarra, it is not subject to the tolling
provisions of former section 803.
The
argument lacks merit. The tolling
provisions of former section 803 apply if the charged crime “is one that is
described in subdivision (c) of Section 290.â€
(Former § 803, subd. (g)(1)(A).)
Count 1 of the information charges Ybarra with kidnapping for sexual
purposes, which is described in subdivision (c) of former section 290. The tolling provisions of former section 803
therefore apply to count 1. It does not
matter that the information (correctly) charges kidnapping for sexual purposes
under former section 208 (where it was codified in 1995, when the crimes were
committed) rather than under former section 209 (where it was codified in 2009,
when the information was filed), and it does not matter that subdivision (c) of
former section 290 fails to refer to former section 208. Subdivision (c) of former section 290 need
not identify by section number every code provision in which the crime was ever
codified. Count 1 charged Ybarra with
kidnapping for sexual purposes, and that crime is described in subdivision (c)
of former section 290, so the tolling provisions of former section 803 apply.
As
to counts 2 and 3, Ybarra argues that the record contains insufficient evidence
that the samples taken from T.A. in 1995 were analyzed for DNA type no later
than January 1, 2004. If sound, the
argument would apply to count 1 as well.
“[W]hen
the charging document indicates on its face that the action is time-barred, a
person convicted of a charged offense may raise the statute of limitations at
any time. If the court cannot determine
from the available record whether the action is barred, it should hold a hearing
or, if it is an appellate court, it should remand for a hearing.†(Williams,
supra, 21 Cal.4th at p. 341.) Ybarra did not raise the statute of
limitations until this appeal. Both at
the preliminary hearing and at trial, the prosecution did not attempt to prove
the facts necessary to trigger the tolling provisions of former
section 803. Having reviewed the
record of the preliminary hearing and the trial, we cannot determine from the
available record whether the three counts alleged in the information are
barred, so we remand for a hearing on the issue.
II. Propensity Evidence
At
trial, the prosecution presented evidence of two previous sexual offenses
allegedly committed by Ybarra. The first
occurred in 1988 and involved victim C.G.
It appears from the record that Ybarra was arrested but never
charged in connection with that incident.
C.G. could not be located to testify at trial in this case, but a police
officer who arrived at the scene when the alleged offense was in progress
testified to what he observed.
The
second incident occurred in 1995 and involved victim S.T. Ybarra was arrested and charged with rape on
the basis of that incident, and S.T. identified him in her testimony at the
preliminary hearing in that case.
Ybarra’s counsel in that case negotiated a plea agreement, and Ybarra
pled guilty to sexual battery in violation of section 243.4a. S.T. died some time before trial in the
instant case, but the prosecution read her preliminary hearing testimony to the
jury.
Ybarra
objected to admission of the evidence concerning both incidents. The trial court admitted the evidence under
subdivision (a) of Evidence Code section 1108, which provides that “[i]n a
criminal action in which the defendant is accused of a sexual offense, evidence
of the defendant’s commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to
Section 352.â€
On
appeal, Ybarra argues that Evidence Code section 1108 on its face violates due
process. He also recognizes, however,
that the California Supreme Court has held that Evidence Code section 1108 does
not violate due process (People v.
Falsetta (1999) 21 Cal.4th 903, 911), and he concedes that we are
bound by that holding (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). We accordingly reject Ybarra’s argument that
Evidence Code section 1108 on its face violates
Ybarra
also argues that the trial court abused its discretion by determining that the
evidence of the two prior incidents was admissible under Evidence Code section
352 and hence under Evidence Code section 1108.
Under Evidence Code section 352, the trial court “in its discretion may
exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.†The court’s
ruling on the admission or exclusion of evidence under Evidence Code section
352 “‘must not be disturbed on appeal except
on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of
justice. [Citations.]’ (People
v. Jordan (1986) 42 Cal.3d 308, 316 [228 Cal.Rptr. 197, 721 P.2d
79].)†(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
In
Falsetta, the Supreme Court stated
that, in deciding whether to admit evidence of prior sexual offenses under
Evidence Code section 1108, “trial judges must consider such factors as its
nature, relevance, and possible remoteness, the degree of certainty of its
commission and the likelihood of confusing, misleading, or distracting the
jurors from their main inquiry, its similarity to the charged offense, its
likely prejudicial impact on the jurors, the burden on the defendant in
defending against the uncharged offense, and the availability of less
prejudicial alternatives to its outright admission, such as admitting some but
not all of the defendant’s other sex offenses, or excluding irrelevant though
inflammatory details surrounding the offense.â€
(Falsetta,
Evaluated
in light of the factors listed in Falsetta,
the trial court’s ruling was not arbitrary, capricious, or patently
absurd. The probative value of the
evidence was high, because it tended to show that Ybarra has a propensity to
commit violent sexual assaults. (See
Ybarra does not identify any significant risk of undue prejudice—he
points out that he was unable to cross-examine the alleged victims because they
did not testify and that the incidents occurred between 15 and 20 years
ago, but neither of those points shows a risk of undue prejudice. It was not an abuse of discretion for the
court to determine that the probative value of the evidence was not
substantially outweighed by the probability that it would create a substantial
danger of undue prejudice. We therefore
reject Ybarra’s argument.
III. Confrontation Clause Rights
Ybarra
also argues that the trial court violated his rights under the Confrontation
Clause by allowing the transcript of S.T.’s preliminary hearing testimony to be
read to the jury. We conclude that the
record on appeal does not support his argument.
As
Ybarra acknowledges, the admission of S.T.’s preliminary hearing testimony did
not violate his confrontation rights if S.T. was unavailable at trial and
Ybarra had an adequate opportunity to cross-examine her at the preliminary
hearing. (People v. Carter (2005) 36 Cal.4th 1114, 1172-1173;
36, 57.) It is undisputed that S.T.
was deceased at the time of trial. It is
also undisputed that Ybarra’s counsel cross-examined her at the preliminary
hearing.
Ybarra
argues nonetheless that the admission of S.T.’s testimony violated his
confrontation rights because his opportunity for cross-examination was not
adequate, because there were “numerous times that defense counsel’s
cross-examination was truncated on objections from the prosecutor.†The record before us does not support the
argument. In the reporter’s transcript
of Ybarra’s trial, the reading of S.T.’s testimony occupies 78 pages, of which
57 are cross-examination. No objections
or rulings on them were read to the jury, so we do not know how many objections
the prosecution raised, how many were sustained, how many of those rulings
might have been erroneous, or how those rulings might have constrained Ybarra’s
counsel’s cross-examination.
On
this record, then, which reveals that the cross-examination of S.T. was more
than twice as long as the direct examination and which fails to show that any
objections during cross-examination were erroneously sustained or unduly
interfered with the cross-examination, we must reject Ybarra’s argument that
his opportunity to cross-examine S.T. at the preliminary hearing was
inadequate. We therefore likewise must
reject his argument that the admission of S.T.’s preliminary hearing testimony
violated his confrontation rights.
DISPOSITION
The
judgment is conditionally reversed. On
remand, the trial court shall conduct a hearing to determine whether the
charges in the information were timely filed.
If the trial court determines that the charges were timely, then the
trial court must reinstate the judgment of conviction and sentence. If the trial court determines that the
charges were untimely, then it must dismiss them. In all other respects, the judgment is
affirmed.
NOT
TO BE PUBLISHED.
ROTHSCHILD,
J.
We concur:
MALLANO, P. J.
JOHNSON, J.
are to the Penal Code unless otherwise indicated.
in 1995, the statutory citations in the information refer to the versions of
those statutes that were in effect in 1995.
