People v. Jimenez

1

THE PEOPLE, Plaintiff and Respondent, v. RAUL MARTINEZ JIMENEZ, Defendant and Appellant.

D081746

California Court of Appeals, Fourth District, First Division

July 17, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCE410943 Polly H. Shamoon, Judge. Affirmed in part reversed in part; remanded with directions.

Jan B Norman, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Anne Spitzberg, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

A jury convicted Raul Martinez Jimenez of possession of a firearm in a school zone (Pen. Code,^[1] § 626.9; count 1); two counts of assault with a firearm (§ 245, subd. (a)(2); counts 2 and 4); child abuse (§ 273a, subd. (a); count 3); making a criminal threat (§ 422; count 5); possession by a felon (§ 29800, subd. (a)(1); count 6); unlawfully carrying a loaded firearm in a vehicle while in a public place (§ 25850, subd. (a); count 7); and evading an officer with reckless driving (Veh. Code, § 2800.2 subd. (a); count 8). The jury also found true as to count 2 that the victim was a person defined in Family Code section 6211 and within the meaning of Penal Code section 1203.097, subdivision (a). Regarding count 5, the jury found true that Jimenez personally used a firearm (§ 12022.5, subd. (a)) and was armed with a firearm (§ 12022, subd. (a)(1)). Concerning count 7, the jury found true that Jimenez previously had been convicted of a felony (§ 25850, subd. (c)).

The court sentenced Jimenez to prison for a total of 10 years.

Jimenez appeals, raising two primary issues. First, he argues the case must be remanded to clarify certain inconsistencies between the court's oral pronouncement of the sentence and the abstract of judgment. Second, Jimenez contends the court erred by failing to stay the sentences for counts 4, 6, and 7 under section 654.

The People concede and we agree that the trial court erred in failing to stay Jimenez's sentence for count 4. The People also acknowledge that counts 6 and 7 are based on a single act. They ask us to stay the sentence on count 7; however, it is within the trial court's discretion to determine whether to stay Jimenez's sentence for count 6 or count 7. We cannot make that determination on appeal. In addition, on a point not raised by Jimenez, the People note that the trial court improperly sentenced Jimenez under both section 12022.5, subdivision (a) and section 12022, subdivision (a)(1). Thus, the concurrent one-year enhancement under section 12022 should be stayed under section 654 as well. Accordingly, we reverse the judgment and remand the matter to the superior court for resentencing consistent with this opinion. In all other respects, the judgment is affirmed.

FACTUAL BACKGROUND^[2]

The victims lived with Jimenez in a large RV. Jimenez, a convicted felon, owned a small revolver that he kept in the RV. On the night of February 1, 2022, Jimenez became angry and choked his 16-year-old daughter, A.J., in the car while driving home from a 99 Cent store.

When they got home, Jimenez threatened to kill 18-year-old L.C., who is A.J.'s boyfriend. Jimenez was holding his revolver at the time of the threat. Jimenez pointed the gun at L.C.'s head and pushed L.C.'s head with the gun. Jimenez also put the gun to his 12-year old daughter's head.

The next morning, A.J., L.C., and a friend left the RV to take A.J. to her high school. On the way, A.J. got a call from Jimenez who sounded angry because someone had called Child Protective Services (CPS) about the previous night's events. A.J. became afraid for her younger siblings because they were at their elementary school and she feared Jimenez would pick them up and harm them. A.J. called family members for help, who then called CPS, the elementary school, and the police. In response, the elementary school was placed on lock down.

Sheriff's deputies arrived at the elementary school anticipating Jimenez's arrival. Jimenez showed up and saw multiple sheriff's deputies and police cars. Jimenez immediately sped away and led the deputies on a high-speed chase through residential streets. Jimenez finally crashed into another car and sheriff's deputies were able to take him into custody.

A search of Jimenez's car revealed that he had his revolver with him, within arm's reach, and it was loaded with five rounds of ammunition. An additional bullet was found underneath the gun.

DISCUSSION

I

SECTION 654

A. Jimenez's Contentions

Jimenez argues that the court was required to stay the sentences under counts 4, 6, and 7 pursuant to section 654. The People correctly concede that the sentence on count 4 should have been stayed under section 654. However, the People disagree that the sentences for both counts 6 and 7 should be stayed. Rather, they maintain that those two counts are based on the same act, and thus, we should modify the judgment to stay the sentence as to count 7. Although we agree with the People that counts 6 and 7 are based on a single act, it is well within the trial court's purview to determine which sentence to stay. It is not our role to make that selection on appeal. Therefore, we must remand this matter for resentencing consistent with this opinion.^[3]

B. Background

1. The Oral Pronouncement of Jimenez's Sentence

The court sentenced Jimenez to prison for 10 years. In calculating the 10-year term, the court began by selecting count 5 as the principal count. The court explained:

"As to count five, the Court is selecting the middle term of two years. Two years state prison will be ordered in that case with the middle term of four years on the [section] 12022.5 [enhancement]. That is a total of six years with one year consecutive for the [section] 12022[,] [subdivision] (a)(1) [enhancement]. In that count alone, it's a total of six years. That's a state prison commit."

The court added consecutive one-third the middle-term sentences on both counts 1 and 2, which equaled one year for each of those counts. Thus, the sentence was increased to eight years.

For count 3, the court sentenced Jimenez to one-third the middle-term of four years, which added another one year four months to the sentence. And regarding count 8, the court selected one-third the middle-term of two years for an additional eight months. The eight months added to the year four month sentence on count 3 added two more years to Jimenez's sentence for a total of 10 years.

Concerning count 4, the court imposed a sentence of three years to run concurrently. For counts 6 and 7, the court sentenced Jimenez to two years for each count to be served concurrently to the 10-year sentence as well.

2. Counts 4 and 5

On February 3, 2022, one day after the charged crimes occurred, a forensic social worker interviewed Jimenez's 16-year-old daughter, A.J. A.J. told the social worker that Jimenez got his gun, pointed it at L.C.'s head and said, "if you snitch, I'll kill you" and then "was going like this, like that.

My boyfriend's head was going like that." A.J. told Jimenez to leave L.C. alone.

The video recording of that interview was played for the jury and in that video, A.J. demonstrated how Jimenez placed his gun against L.C.'s head after threatening to kill L.C. The prosecutor asked A.J. if L.C. said or did anything "when [Jimenez] came to him and held the gun to his head and pushed his head to the side with the gun?" and A.J. said she did not remember. A.J. also said she did not remember if L.C. said or did anything when Jimenez pointed the gun at L.C. and told him, "[i]f you snitch I'll kill you." When she testified, A.J. recanted portions of her prior statements to the social worker and police officer.

During closing argument, the prosecutor mentioned that A.J. demonstrated how Jimenez held the gun to the side of L.C.'s head and pushed his head "physically to the side using the gun" in a video-recorded forensic interview. The prosecutor argued that this act fulfilled the elements for count 4 (assault with a firearm). The prosecutor later argued that Jimenez's threats to kill L.C. if he snitched, while holding the gun, fulfilled the elements for count 5, criminal threats, while personally using a firearm.

At the sentencing hearing, defense counsel argued that the assault with a firearm term should be stayed pursuant to section 654 because it was a single event along with the criminal threats. The prosecutor disagreed and argued that Jimenez's acts were divisible because he first entered with the gun and threatened to kill L.C. and then, after having an opportunity to stop and leave, decided to walk toward L.C., put the gun to his head and pushed his head to the side. The trial court did not address the section 654 argument but imposed concurrent terms for counts 4 and 5.

3. Counts 1, 6, 7

On the morning of February 2, 2022, A.J. called her family members for help after Jimenez said he had a gun with him and wanted to kill "them" because of someone calling CPS. CPS called and warned the elementary school where Jimenez's younger two children attended, and the school principal called 911. Because Jimenez had a gun, the school went into lockdown; all students were evacuated from the playground into safe areas. Multiple sheriff's deputies arrived at the school. Deputy Daniel Nevitt saw Jimenez driving into the school and made eye contact with Jimenez. Jimenez sped up and drove past the deputies and the school. The deputies got into their patrol cars and chased Jimenez. Jimenez was eventually apprehended and a search of his car revealed a loaded revolver within...