People v. Ybarra CA4

Filed 7/26/16 P. v. Ybarra CA4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070904 Plaintiff and Respondent, (Super. Ct. No. SC061261A) v.

MARK ANTHONY YBARRA, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Carol Foster, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- Appellant Mark Anthony Ybarra filed a petition seeking to be resentenced pursuant to the provisions of the Three Strikes Reform Act of 2012 (the Act). The trial

*Before Kane, Acting P.J., Peña, J., and Smith, J.

court denied the petition, concluding that Ybarra was ineligible for resentencing. We affirm the order denying the petition. FACTS AND PROCEDURAL HISTORY In 1995, Ybarra pled no contest to one count of felony child endangerment (Pen. Code, § 273, subd. (a)(1)1) and was sentenced to a third-strike term of 25 years to life. The parties stipulated that the factual basis for the plea could be found in the police reports, which explained that Ybarra’s three-month-old daughter had been brought to the hospital suffering from seizures. Examination revealed that the baby was in critical condition with a linear skull fracture near her left ear resulting in cerebral hemorrhaging. Ybarra eventually admitted he had been fighting with his wife, became very angry, and took the child to another room. The baby was crying, further irritating Ybarra. Ybarra threw the baby onto the couch very hard where she hit her head on either a glass baby bottle or on the wooden armrest of the couch. When the baby hit her head, Ybarra heard a loud noise.2 In 2013, Ybarra filed a petition to recall his sentence pursuant to the terms of section 1170.126. The district attorney opposed the motion, arguing both that Ybarra was ineligible, and, if eligible, he posed an unreasonable risk to public safety. The trial court denied the petition, concluding that Ybarra was ineligible for resentencing. Ybarra appeals from the order denying his petition. DISCUSSION Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, asserting she could not identify any arguable issues in this case. By letter dated June 18, 2015, we invited Ybarra to inform this court of any issues he wished us to address.