People v. Jimenez
| Decision Date | 16 May 2019 |
| Docket Number | H044238 |
| Citation | 35 Cal.App.5th 373,247 Cal.Rptr.3d 221 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Manuel Jesus JIMENEZ, Defendant and Appellant. |
Attorney for Defendant and Appellant Manuel Jesus Jimenez: Alexis Ivar Haller under appointment by the Court of Appeal for Appellant
Attorneys for Plaintiff and Respondent The People: Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Ann P. Wathen, Deputy Attorney General
A jury found defendant Manuel Jesus Jimenez guilty on 15 counts of sexually molesting three victims over a two-year period. The jury also found true allegations that he had committed the offenses against multiple victims. The trial court imposed an indeterminate term of 175 years to life in prison and a determinate term of four years four months.
Jimenez raises numerous claims on appeal. First, he contends the prosecution committed misconduct in closing argument by stating he was no longer presumed innocent and shifting the burden of proof to the defense. Second, he contends the trial court erred by admitting a note that one of the victims had written to her mother disclosing the sexual abuse. Jimenez also raises claims of ineffective assistance of counsel and cumulative prejudice in connection with these claims. He further contends the evidence was insufficient to support convictions on two counts of forcible lewd acts because the evidence failed to prove he used force or duress. We conclude these claims are without merit.
Finally, Jimenez alleges the trial court erred by imposing terms of 25 years to life based on sentencing enhancements the prosecution failed to plead. He also claims his sentence constituted cruel and unusual punishment. We conclude the trial court erred by sentencing Jimenez based on enhancements that were never pleaded. Accordingly, we will reverse the judgment and remand solely for resentencing. We do not reach the claim of cruel and unusual punishment.
The prosecution alleged Jimenez committed multiple offenses against each of three victims: K.D., S.D., and A.D.
The prosecution charged Jimenez with 19 counts: Count 1—forcible lewd act on a child under 14 (digital penetration of K.D. while she was awake, the first time) ( Pen. Code, § 288, subd. (b)(1) ); count 2—forcible lewd act on a child under 14 (digital penetration of K.D. while she was awake, the last time) ( Pen. Code, § 288, subd. (b)(1) ); count 3—lewd act on a child aged 14 or 15 by a defendant at least 10 years older (touching K.D. in the car after buying her an iPod) ( Pen. Code, § 288, subd. (c) ); count 4—lewd act on a child under 14 (touching K.D.’s vagina while she was asleep, the first time) ( Pen. Code, § 288, subd. (a) ); count 5—lewd act on a child under 14 (touching K.D.’s vagina while she was asleep, the last time) ( Pen. Code, § 288, subd. (a) ); count 6—lewd act on a child aged 14 or 15 by a defendant at least 10 years older (putting his hand down K.D.’s pants as witnessed by S.D.) ( Pen. Code, § 288, subd. (c) ); count 7—sexual penetration of a child 10 or under (digital penetration of S.D., the first time) ( Pen. Code, § 288.7, subd. (b) ); count 8—sexual penetration of a child 10 or under (digital penetration of S.D., the last time) ( Pen. Code, § 288.7, subd. (b) ); count 9—forcible lewd act on a child under 14 (touching S.D.’s vaginal area, the first time) ( Pen. Code, § 288, subd. (b)(1) ); count 10—forcible lewd act on a child under 14 (touching S.D.’s vaginal area, the first time) ( Pen. Code, § 288, subd. (b)(1) ); count 11—lewd act on a child under 14 (touching S.D.’s vaginal area, the first time) ( Pen. Code, § 288, subd. (a) ); count 12—lewd act on a child under 14 (touching S.D.’s vaginal area, the last time) ( Pen. Code, § 288, subd. (a) ); count 13—lewd act on a child under 14 (touching S.D.’s chest) ( Pen. Code, § 288, subd. (a) ); count 14—lewd act on a child under 14 (touching A.D., the first time, when she was 13) ( Pen. Code, § 288, subd. (a) ); count 15—lewd act on a child under 14 (touching A.D., the last time, when she was 13) ( Pen. Code, § 288, subd. (a) ); count 16—lewd act on a child aged 14 or 15 by a defendant at least 10 years older (putting his hand under A.D.’s shirt to touch her breasts) ( Pen. Code, § 288, subd. (c) ); count 17—lewd act on a child aged 14 or 15 by a defendant at least 10 years older (incident involving A.D. in the Denny’s parking lot on Aunt’s birthday) ( Pen. Code, § 288, subd. (c) ); count 18—sexual battery by restraint (incident involving A.D. in the Denny’s parking lot on Aunt’s birthday) ( Pen. Code, § 243.4, subd. (a) ); and count 19—lewd act on a child aged 14 or 15 by a defendant at least 10 years older (grabbing A.D.’s breasts and buttocks at the house in Marina on Aunt’s birthday) ( Pen. Code, § 288, subd. (c) ). As to counts 1, 2, 3, 4, 5, 6, 9, 10, 11, 12, 13, 14 and 15, the prosecution alleged Jimenez committed the offenses against more than one victim. ( Pen. Code, § 667.61, subds. (b) & (e).)
The case went to trial in November 2016. At the close of evidence, the trial court granted the prosecution’s motion to dismiss counts 9, 10, 18, and 19. The jury found Jimenez guilty on all remaining counts and found true the multiple-victim enhancements.
The trial court imposed a determinate term of four years four months and an indeterminate term of 175 years to life in state prison. The determinate term consisted of three years on count 3, consecutive eight-month terms for counts 16 and 17, and a concurrent three-year term for count 6. The indeterminate term consisted of seven consecutive terms of 25 years to life on counts 1, 2, 4, 5, 11, 12, and 14, with concurrent terms of 25 years to life on counts 13 and 15. On counts 7 and 8, the court imposed terms of 15 years to life in state prison but stayed the terms under Penal Code section 654.
Jimenez began living with his girlfriend Kristine Doe in Salinas in January 2012, and they moved to Marina in October 2014. Kristine had two children by another father—her daughter K.D., born in December 1999, and her son B.D., born in November 2004. In September 2012, Kristine gave birth to another daughter, fathered by Jimenez.
Kristine had two sisters—Angela Doe and Jennifer Doe. Angela’s daughter S.D. was born in August 2005, and Jennifer’s daughter A.D. was born in October 1999. S.D. and A.D. frequently visited their cousin K.D. while she was living with Jimenez.
The prosecution alleged Jimenez molested K.D., S.D., and A.D. on multiple occasions between January 2013 and May 2015.
K.D. was 16 when she testified at trial. She testified that she met Jimenez in 2012 when he started dating Kristine. Jimenez lived with them in an apartment in Salinas. In 2014, they all moved to a trailer in Marina. The family members often slept in the same room.
At first, K.D. had a good relationship with Jimenez. He was like a father to her, and she called him "dad." But the relationship changed when he started molesting her. It started happening around the time K.D. was in seventh grade. He started kissing her on the lips instead of the cheek. She told him not to kiss her like that, but he threatened to leave her mother, and he would start fights with Kristine for no reason. This concerned K.D. because Jimenez was helping them financially.
Jimenez then started touching K.D. inappropriately. This started when they were living in Salinas, while K.D. was still in seventh grade. Jimenez tried to put his hands down her pants while she was sleeping. He touched her vagina under her clothes and woke her up. She stopped him and pushed his hands away, but he tried to touch her again. He made contact with her bare skin, and he put his fingers inside her. It happened on more than one occasion. K.D. could not recall how many times it happened, but she testified that it happened a lot. K.D. thought about telling Kristine but decided against it because Jimenez was helping her mother. On one occasion, K.D. was lying down listening to music in her mother’s room in Salinas when Jimenez "started putting his hand down there." K.D. would try to move his hand away, but he kept trying. He was touching her vagina through her clothes.
These incidents continued to happen after K.D. turned 14 and they moved to Marina. Jimenez tried to touch her breasts, and he would grab her hand and try to put it down his pants. She would pull away when he did that, and then he would try to touch her vagina. Sometimes she would call out to her brother B.D., but Jimenez would stop before B.D. entered the room. This happened around two or three times.
When Kristine was in the hospital after giving birth, Jimenez touched K.D. more frequently. Jimenez started treating K.D. differently—for example, trying to be alone with her and wanting to take her somewhere. Jimenez would give her presents or buy her something expensive, like an iPod or a bike. After driving to Best Buy to buy her an iPod, he drove them into a field, stopped the car, and tried to have sex with her. She was sitting in the front passenger’s side seat when he tried to get on top of her. He was touching her breasts and trying to unbutton her pants. She pushed him away and told him to stop, and in response he told her to get out of the car. When she threatened to tell her mother, he drove her home.
K.D.’s cousin A.D. is close in age to K.D. A.D. would sometimes visit K.D. and spend the night at the apartment in Salinas. She also spent the night at the trailer in Marina once or twice. Jimenez would wrestle with A.D. while play-fighting with all the kids. A.D. told K.D. that Jimenez made her uncomfortable because he was trying to touch her. K.D. told Kristine about this. S.D. told...
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