Filed 3/11/14 P. v. Ibarra CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


THE PEOPLE,                                                                  2d Crim. No. B243065
                                                                            (Super. Ct. No. 1200303)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

ROBERT QUINONEZ IBARRA,

     Defendant and Appellant.


                   Robert Quinonez Ibarra appeals a judgment after conviction by jury of first
degree murder with the special circumstance of lying in wait. (Pen. Code, § 190.2, subd.
(a)(15).) The jury found true allegations that Ibarra personally used a knife and
committed the crime for the benefit of a street gang. (Id., §§ 12022, subd. (b)(1), 186.22,
subd. (b)(1).) The prosecutor did not seek the death penalty. The trial court sentenced
Ibarra to life in prison without the possibility of parole.
                   In an earlier proceeding, Joshua Miracle was convicted of the same crime
and sentenced to death. After Miracle's conviction, he said that he alone was responsible
for the murder and that Ibarra was innocent. He refused to testify in Ibarra's trial and the
trial court excluded his out-of-court statements.
                   Ibarra contends that the trial court should have admitted Miracle's
statements because they were against his penal interest. (Evid. Code, § 1230.) Ibarra
also contends a detective unfairly buttressed the testimony of an adverse witness when he
said the witness had offered to take a lie detector test. He contends the cumulative effect
of these errors denied him a fair trial. We modify the judgment to include a mandatory
$40 court security assessment (Pen. Code, § 1465.8, subd. (a)(1)) and a mandatory $30
criminal conviction assessment (Gov. Code, § 70373, subd. (a)(1)). We otherwise affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
              Elias Silva was stabbed to death in a Goleta apartment early in the morning
on October 3, 2004. Ibarra, Miracle, and Robert Galindo were the only people present
when Silva was attacked.
              Police found Silva's body in the apartment. His body had 48 stab wounds.
Ibarra's fingerprints were on a knife on the floor of the apartment. Ibarra's blood was on
the outside of the front door. A mixture of Ibarra's and Silva's blood was on Silva's shoe
and on a T-shirt in the apartment. Miracle's palm print was on the bathroom counter and
on the inside of the front door next to Ibarra's palm print. A large duffle bag with wheels
was on the patio. A drop-cloth, a butane torch, a pick ax, and a receipt, among other
items, were inside the bag. The receipt was for two drop-cloths and a pair of gloves that
had been purchased the night of October 2, 2004, from Home Depot. A Home Depot
videotape from that evening showed Ibarra buying gloves and a drop-cloth. Telephone
records showed nine phone calls were made from Ibarra's cell phone to Silva's cell phone
in the hours before the murder.
              Ibarra and Miracle were arrested a day after the murder, while driving
Silva's car in San Diego. Ibarra was bleeding from a stab wound in his leg. Silva's blood
and Ibarra's blood were on Miracle's shoes and on a pair of gloves in the back seat.
              In 2005, Miracle pled guilty to first degree murder and admitted to lying in
wait, personally using a knife, and committing the crime for the benefit of a street gang.
In 2006, a jury imposed the death penalty.
              Ibarra was tried in 2011. Before Ibarra's trial, Galindo pled guilty to
voluntary manslaughter and agreed to testify against Ibarra in exchange for a maximum
sentence of 11 years in state prison.


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                          Miracle's Pre-Penalty Statement in Court
               At his pre-penalty hearing, Miracle appeared in court and said he had a
"statement that [he] prepared." He said, "I'd like to go on record briefly about why I
decided to plead guilty . . . . I'm guilty of the murder and Ibarra is not. . . . I'm the only
person responsible for the murder of Eli Silva." He said the only reason he pled guilty
was "because [he] felt the only honorable thing to do . . . was to take responsibility in
terms of Ibarra's case and then make [himself] available to offer exonerating testimony on
[Ibarra's] behalf at trial." Miracle said he intended to offer more detail at Ibarra's trial and
he did not intend to offer mitigating evidence at his own penalty phase trial.
                       Miracle's Statements to Defense Investigators
               After Miracle was sentenced to death, he made several more statements
claiming that he alone was guilty of Silva's murder and Ibarra was innocent. The first
statement in January 2006 was in the form of written responses to 17 questions that were
posed by Ibarra's defense attorney, Robert Duvall, through Miracle's investigator. The
resulting document, "Answers for Duval," gives a detailed account of the killing that, if
believed, would exonerate Ibarra. According to Miracle, Ibarra was wholly innocent.
Ibarra did not help plan the murder and he did not pull Silva into the apartment. Miracle
stabbed Ibarra in the leg when Ibarra tried to intervene, and Miracle forced Ibarra to drive
away with him in Silva’s car.
               Miracle next made a statement in June 2006 to Ibarra's investigator, Robert
Strong, in an interview at San Quentin. Strong summarized the conversation in a report.
               Miracle refused to be interviewed by the prosecution. Upon request of the
prosecution, the trial court ordered Miracle to appear for a hearing about his possible trial
testimony pursuant to Evidence Code section 402. Miracle asserted his privilege against
self-incrimination and refused to testify at Ibarra's trial.
               Miracle made another statement in March 2007 to Ibarra's investigator,
again claiming that Ibarra was innocent. Strong summarized it in a second report.




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                           Defense Efforts to Admit Miracle's Statements
               Ibarra sought to introduce Miracle's statements to investigators with an
"Application to Present a Complete Defense," wherein he asserts they were admissible
pursuant to Evidence Code section 1230 (hearsay statement admissible when unavailable
witness made it against penal interest in circumstances indicating trustworthiness). The
trial court deferred ruling. Toward the end of trial, Ibarra again offered the statements
with a "Motion to Admit Evidence as Declaration Against Interest." Both requests were
limited to Miracle's statements to investigators. But at the hearing, counsel also offered
Miracle's pre-penalty statement and the court included the pre-penalty statement in its
ruling.
               The trial court excluded Miracle's statements. The court found the
statements were not "significantly" against Miracle's penal interest because they were
made after he was convicted and were untrustworthy. With respect to Miracle's
pre-penalty statement, the trial court found "part of [it] is a declaration against penal
interest ['I'm guilty of the murder'], and part of it is collateral to the declaration against
penal interest ['Ibarra is not']." With respect to the statements to investigators, the court
found the circumstances "suggest that Mr. Miracle is reflective, he's thought about his
statements, he's making them to a defense investigator, it seems to me that they lack
trustworthiness . . . ."
               The trial court said, "[T]hey're not the kind of incriminating statements that
are made under circumstances that really expose him to criminal liability having been
made two years later to an investigator for a co-participant or a co-defendant seems to
suggest that his motivation may have been to protect the co-participants or the co-
defendant as opposed to making the statements under circumstances where he was truly
exposing himself to criminal liability by making the statements . . . ." The court also
excluded a recorded conversation between Miracle and his stepmother in which he said,
"[I]f I am willing to kill, I should be willing to die," because it was not exculpatory of
Ibarra and it would introduce the issue of penalty. At a subsequent hearing, the court
further considered the statements and concluded, "[They were] made with an intent to

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enhance his reputation, avoid cooperation with law enforcement in any way, assist Mr.
Ibarra with whom he had some sort of relationship. It would appear that he has the
motivation to--which is obvious in reading his statement that he's going above and
beyond any sort of objective recitation of the facts in order to attempt to exculpate Mr.
Ibarra. It seems like the totality of circumstances suggests that the statements are
untrustworthy, and I'm going to exclude them."
                                   Galindo's Testimony
              Galindo testified for several days leading up to the night of October 2,
2004, he, Miracle, and Ibarra were gathered in his apartment. Silva was a
methamphetamine dealer. Galindo testified that Miracle and Ibarra had a conversation
about "cleaning up the rats in Santa Barbara." Miracle asked Galindo to call Silva and
tell him to come to the apartment. When Galindo protested, Miracle held a knife to
Galindo’s throat. Galindo used Ibarra’s cell phone to call Silva many times before he
persuaded Silva to come. Before Silva arrived, Miracle and Ibarra brought a duffel bag
into the apartment and cleared the furniture from the entrance. Miracle armed himself
with a butcher knife. When Silva opened the door, Ibarra pulled Silva into the apartment
and Miracle attacked Silva. Galindo testified that he ran from the apartment and did not
see Silva get stabbed.
              Galindo had Ibarra's cell phone, but he did not call 911. He went to an
acquaintance's house where, she testified, he and others coordinated their stories before
contacting police. Galindo testified in exchange for leniency. His testimony was
inconsistent with his initial statements to police. In a note, a juror asked, "What do/can
we do when there are inconsistencies in testimony that the attorneys don't address?" The
juror pointed out that phone records contradicted Galindo’s testimony. Another juror
asked if Galindo had been gainfully employed, pointed out conflicts in his testimony, and
wrote, "R.G. has stated this both ways. Which was it?"
                             Reference to Polygraph At Trial
              Sheriff's Detective Christopher Dallenbach described Galindo’s October 3
interview. The prosecutor asked Dallenbach whether Galindo offered to be tested for

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narcotics. Dallenbach said, "I remember that. I also remember him offering to take a
polygraph exam." The trial court sustained defense counsel's objection, struck the
testimony, and instructed the jury to disregard the answer. Counsel did not request
further admonition. The court denied Ibarra's request for a mistrial.
                                       DISCUSSION
                             Statements Against Penal Interest
              The hearsay statement of an unavailable witness may be admitted if, when
made, it "subjected him to the risk of . . . criminal liability" such "that a reasonable man
in his position would not have made the statement unless he believed it to be true."
(Evid. Code, § 1230.) The proponent of a statement against penal interest must show that
(1) the declarant is unavailable, (2) the declaration was against the declarant's penal
interest, and (3) the declaration was sufficiently reliable to warrant admission despite its
hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) The exception
does not apply to collateral assertions within declarations against penal interest. (People
v. Leach, supra, 15 Cal.3d 419, 441.) Declarations against penal interest may contain
self-serving and unreliable information. (Duarte, at p. 611.) Only those portions of a
statement that are "specifically disserving" to the speaker's penal interest are admissible
under Evidence Code section 1230. (Duarte, at p. 612.) We review for abuse of
discretion a trial court's decision to admit or exclude a statement against penal interest.
(People v. Cudjo (1993) 6 Cal.4th 585, 607.)
              Miracle became unavailable when he invoked the Fifth Amendment.
(People v. Leach (1975) 15 Cal.3d 419, 438). He made the pre-penalty statement and the
statements to investigators after he was convicted. Although the statements could be
used against him if his conviction were reversed, the remoteness of this possibility, joined
with other circumstances, supports the trial court's determination that Miracle's
statements are not sufficiently reliable to warrant admission despite their hearsay
character.
              To determine whether a statement against penal interest is sufficiently
trustworthy to warrant admission, the trial court must consider the totality of the

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circumstances and may consider (1) not just the words but the circumstances under which
they were uttered, (2) the possible motivation of the declarant, and (3) the declarant's
relationship to the defendant. (People v. Duarte, supra, 24 Cal.4th 603, 614.)
              The trial court carefully considered all these factors and reasonably
concluded the statements were not reliable. Miracle's pre-penalty statement was a
contrived effort to exonerate Ibarra at little risk to his own criminal liability. Miracle
described it as a "prepared" statement and asked the court for an opportunity to put it "on
the record." He acknowledged that he was motivated to exonerate Ibarra and that his
claim of sole responsibility could inspire leniency in the penalty phase of his own trial.
              Miracle's statements to defense investigators are even less trustworthy
because of the time he had to reflect and construct them and because he had so little to
lose after he was sentenced to death. He spent hours preparing the detailed written
account "for Duvall." That Miracle's written answers to Duvall's questions were
corroborated by physical evidence does not render them trustworthy. As a self-
represented litigant, Miracle had access to all of the physical evidence concerning Silva's
murder, and he had the time and opportunity to create a coherent account in response to
the written questions. The trial court did not abuse its discretion when it excluded
Miracle's statements.
                           Reference to Polygraph Examination
              Ibarra contends that Dallenbach leant Galindo's testimony a prejudicially
false aura of credibility that could not be cured by admonition when Dallenbach said
Galindo offered to take a polygraph examination. We disagree.
              Evidence of an offer to take a polygraph is inadmissible, absent stipulation.
(Evid. Code, § 351.1, subd. (a).) A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction. (People v. Dement (2011)
53 Cal.4th 1, 40.) A witness's volunteered statement may provide the basis for a finding
of incurable prejudice. (Ibid.) We review the denial of a motion for mistrial under the
deferential abuse of discretion standard. (People v. Cox (2003) 30 Cal.4th 916, 953 [no
incurable prejudice where prosecutor's isolated question about polygraph was stricken

                                              7
before witness could respond], overruled on another ground in People v Doolin (2009) 45
Cal.4th 390, 421, fn. 22.) The trial court is vested with "considerable discretion" in
determining a mistrial motion (Dement, at p. 40), because whether a particular incident is
incurably prejudicial is "a speculative matter" (id. at p. 39).
              Dallenbach's reference to a polygraph test was brief. The trial court
immediately struck it and admonished the jury: "The last answer that this witness gave is
stricken. You're not to consider it at any time either now or during the course of this trial
or during deliberations." The trial court acted within its discretion when it concluded the
reference was not prejudicial. "[A] trial court's timely admonition, which the jury is
presumed to have followed, cures prejudice resulting from the admission of such
evidence." (People v. Cox, supra, 30 Cal.4th 916, 953, see also People v. Price (1991) 1
Cal.4th 324, 428 [witness's brief, nonresponsive claim that he had taken polygraph tests
did not lend prejudicially false aura of credibility because it was cured by forceful
admonition].) It is true that in Price the court specifically admonished the jury that
polygraph test results are unreliable and inadmissible, but counsel did not request that
specific admonition here. Moreover, the admonition given was sufficient. And counsel
engaged in reasonable trial tactics by accepting the trial court's swift admonition and
moving on, rather than underscoring the testimony with further comment. This case is
unlike People v. Navarrete (2010) 181 Cal.App.4th 828, 831-832, in which a mistrial was
required after a detective deliberately suggested to the jury that the defendant confessed
and the court ruled that "defendant's statement is inadmissible." (Id. at p. 831.)
                                      Cumulative Error
              We reject Ibarra’s claim of cumulative error. The trial court afforded Ibarra
a fair trial. Its approach to the entire proceedings was exemplary.
                 Court Security Fee and Criminal Conviction Assessment
              The trial court did not impose a $40 court security assessment (Pen. Code,
§ 1465.8, subd. (a)(1)) or a $30 criminal conviction assessment (Gov. Code, § 70373,
subd. (a)(1)). The fees are mandatory. (People v. Rodriguez (2012) 207 Cal.App.4th
1540, 1543, fn. 2; People v. Woods (2010) 191 Cal.App.4th 269, 272.)

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                                      DISPOSITION
              We modify the judgment to include a $40 court security assessment (Pen.
Code, § 1465.8, subd. (a)(1)) and a $30 criminal conviction assessment (Gov. Code,
§ 70373, subd. (a)(1)), but otherwise affirm. The trial court shall amend the abstract of
judgment accordingly and forward it to the Department of Corrections and Rehabilitation.
              NOT TO BE PUBLISHED.




                                          GILBERT, P. J.

We concur:



              YEGAN, J.



              PERREN, J.




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                                   Brian Hill, Judge

                       Superior Court County of Santa Barbara

                           ______________________________


             Sanger, Swysen & Dunkle, Robert M. Sanger, Stephen K. Dunkle for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mark A. Kohm,
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.




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