People v. Ybarra CA2/1

Filed 5/30/14 P. v. Ybarra CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B250293

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA081466) v.

ERIK YBARRA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. James Pierce, Judge. Affirmed. Verna Wefald for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Shawn McGahey Webb and Taylor Nguyen, Deputy Attorneys General for Plaintiff and Respondent. __________

In a previous appeal in this matter, we conditionally reversed Eric Ybarra’s convictions on charges of kidnapping, rape, and forcible oral copulation, remanded for a hearing on the timeliness of the charges, and affirmed the judgment in all other respects. On remand, the superior court conducted a hearing and determined that the charges were timely filed, and the court accordingly reinstated the judgment of conviction and sentence. Ybarra again appeals, and we affirm. 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 2081 (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.2 A jury convicted Ybarra on all counts, and the court sentenced him to 27 years in state prison. We conditionally reversed and remanded for a hearing on the timeliness of the charges, but we affirmed the judgment in all other respects. (People v. Ybarra (Dec. 31, 2012, B232640) [nonpub. opn.].) We explained that, under the governing statute, the 2009 charges concerning crimes committed in 1995 were timely only if the biological evidence collected from the victim was “analyzed for DNA type no later than January 1, 2004.” (Ibid.) Because the prosecution did not attempt to prove the necessary facts at either the preliminary hearing or the trial, and we could not determine from the