P. v. Ibarra 3/5/04 CA4/2

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: E031542A

Case Date: 06/10/2004

Preview:Filed 3/5/04 P. v. Ibarra CA4/2 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. JOSE IBARRA, Defendant and Appellant. E031542 (Super.Ct.No. RIF96585) OPINION

APPEAL from the Superior Court of Riverside County. Paul E. Zellerbach, Judge. Reversed. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil P. Gonzalez, Supervising Deputy Attorney General, and Garrett Beaumont, Senior Deputy Attorney General, for Plaintiff and Respondent.

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A jury found Jose Ibarra, defendant and appellant, (hereafter, defendant) guilty of second degree murder in connection with the killing of his wife and further found true the special allegation that defendant personally used a deadly weapon, specifically an axe. The trial court sentenced defendant to serve a term of 16 years to life in state prison based on that verdict and true finding.1 Defendant raises three claims of error in this appeal. First, he contends that the trial court erred in denying his so-called Wheeler/Batson2 motions. Next, he contends the trial court erred in denying his motion for mistrial which defendant contends he based on misconduct committed by both the trial court and the prosecutor. As his final claim, defendant contends the trial court committed reversible error by refusing defendant's request to instruct the jury on involuntary manslaughter as a lesser included offense to the charged crime of murder. We agree, for reasons we explain below, that the trial court committed various errors in ruling on defendant's Wheeler motions. Therefore, we will reverse the judgment.

Correctly stated, the trial court sentenced defendant to a determinate term of one year on the weapon's use enhancement to be followed by an indeterminate term of 15 years to life on the second degree murder conviction. People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
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FACTS The factual details are undisputed. Defendant admitted killing his wife by hitting her in the head with an axe. The only issue at trial was defendant's mental state at the time. According to his statement to the police, and his testimony at trial, defendant suspected that his wife was seeing another man. Based on that suspicion, on the morning of April 11, 2001, defendant left the house to go to work but changed his mind and returned home around 5:00 a.m. Defendant found his wife about to leave the house. When defendant confronted her, his wife told him that she was just going for a walk. Defendant did not believe her and later, as the two were in the garage about to leave for work, defendant again asked his wife why she had been leaving the house so early. When she again said that she had been about to go out for a walk, defendant told her that he would hit her if she did not tell him the truth. As he made that statement, defendant grabbed the first thing that he saw, a small axe or hatchet, and hit his wife on the back of the head with it. Defendant told the police that he did not know how many times he struck his wife but that he continued to hit her with the axe because he did not believe her. When he did stop striking her, defendant either fainted or fell asleep and when he awoke, after about an hour, he saw only a small amount of blood on his wife's hands. Defendant believed his wife had fainted and did not think that she was dead. Defendant told a neighbor what had happened after which he went home and told his three daughters. One of defendant's daughters went to the garage and screamed after spotting

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her mother's body on the garage floor. Two neighbors rushed over in response to the scream. One of the neighbors performed CPR on Mrs. Ibarra while the other spoke with the 911 operator. Mrs. Ibarra died as a result of the blows to her head. Additional facts will be discussed below as relevant to the issues defendant raises on appeal. DISCUSSION We first address defendant's claim that the trial court erred in denying his Wheeler/Batson motions. 1. WHEELER/BATSON MOTION During jury selection, defendant made three motions to dismiss the prospective jury panel based on what defendant claimed was the prosecutor's systematic exclusion of Hispanic and African American jurors. The trial court denied each of those motions. Defendant contends the trial court, for various reasons, erred. We agree and therefore will reverse the judgment, for reasons we now explain. A. Procedural Background Defense counsel first moved to dismiss the jury panel after the prosecutor excused Mr. F. who is Hispanic. In that motion, defense counsel pointed out that the prosecutor had previously used peremptory challenges to dismiss Ms. D.-R., also Hispanic, and Mr. D., an African American. The trial court, without finding that defense counsel had made the requisite prima facie showing, offered explanations for the prosecutor's action -- that

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Mr. D. and Mr. F. both had "unpleasant and unfavorable experiences with law enforcement." After noting that defense counsel had also excused a prospective juror of "Hispanic origin," the trial court denied defense counsel's motion, without addressing defendant's challenge regarding Ms. D.-R. Defense counsel again moved to dismiss the jury panel after the prosecutor used a peremptory challenge to dismiss another Hispanic prospective juror, Ms. V. This time defense counsel objected not only to the prosecutor's use of the peremptory challenge but also to the trial court's procedure for addressing the Wheeler claim.3 With respect to the procedure, defense counsel noted that the trial court allowed the motion to be made at sidebar but did not rule on the merits of the claim until the jury took a regularly scheduled break. Defense counsel complained that in the interval between the time the issue was raised and the trial court ruled, other jurors had been excused and the composition of the jury had changed. In that regard, the prosecutor had excused Ms. S., another female Hispanic juror, in the interval between defendant's objection regarding Ms. V. and before the trial court ruled on that objection. The trial court justified the procedure by explaining that the court had not been inclined to grant the Wheeler motion and therefore continued with jury selection until "it was a convenient and appropriate time to take a recess and have this discussion on the record." As for the prosecutor excusing Ms. V., the trial court noted, first, that defense

We use the designation "Wheeler motion" generically and intend that term to include defendant's motion under Batson v. Kentucky.

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counsel had dismissed a female juror with a Hispanic surname, although the court was "not sure if she, herself, is Hispanic or not." After defense counsel noted that the juror in question "certainly didn't appear to be [Hispanic]," the trial court commented, "I'm not certain of that, but nonetheless, it's reasonable to assume that her husband is of Latin or Hispanic descent. So even though she may not be, she's involved in a relationship with someone who is." In responding to defendant's objection to the prosecutor's peremptory challenge of Ms. V., the trial court again offered a possible explanation for the prosecutor's conduct

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