People v. Jimenez

THE PEOPLE, Plaintiff and Respondent, v. CHAD WILLIAMS JIMENEZ, Defendant and Appellant.

B289894

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE

June 4, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA446047)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick N. Wapner, Judge. Affirmed and remanded.

Stanley Dale Radtke, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior

Assistant Attorney General, Shawn McGahey Webb, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

____________________

The jury found defendant and appellant Chad Williams Jimenez guilty of two counts of assault with a firearm (Pen. Code, § 245, subd. (b)¹ [counts 1 & 4]), possession of a firearm by a felon (§ 29800, subd. (a)(1) [count 2]), and attempted second degree robbery (§§ 211/664 [count 5]).² The jury found true the allegations that Jimenez committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)-(C)), and that he personally used a firearm in commission of the offenses (§§ 12022.5, subds. (a) & (d), 12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true the allegation that Jimenez had suffered a prior strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1).

The trial court sentenced Jimenez to a total of 32 years and 4 months, calculated as follows: in count 1, the mid-term of 6 years, doubled to 12 years under the three strikes law, plus 10 years for the gun enhancement (§ 12022.5), plus a stayed term of 5 years for the gang enhancement (§ 186.22, subd. (b)(1)(B)); in count 4, a consecutive sentence of 2 years,(one-third the mid-term of 6 years), doubled to 4 years pursuant to the three strikes law, plus 16 months (one-third the mid-term of 4 years) for the gun enhancement (§ 12022.5), plus a stayed term of 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)); in count 2, a concurrent sentence of 2 years, plus 3 years for the gang enhancement (§ 186.22, subd. (b)(1)(A)); in count 5, the mid-term of 2 years, plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)), plus 10 years for the firearm enhancement (§ 12022.53, subd. (b)), stayed pursuant to section 654; and 5 years for the prior serious felony conviction enhancement (§ 667, subd. (a)(1)).

Jimenez argues that: (1) the trial court erred in admitting a statement he made while in custody in violation of his Miranda³ rights; (2) the prosecutor committed Griffin⁴ error by commenting on Jimenez's failure to testify; (3) the prosecutor committed prosecutorial misconduct by shifting the burden of proof to Jimenez; (4) the prosecution violated Jimenez's right to due process by failing to examine the weapon allegedly used in the crimes for DNA evidence; (5) Jimenez was prejudiced by cumulative error; (6) Jimenez isentitled to remand for the trial court to rule on his Romero⁵ motion; (7) Jimenez is entitled to remand for the trial court to determine whether to exercise its discretion to strike the five-year prior serious felony conviction enhancement under section 667, subdivision (a)(1); and (8) the trial court's imposition of assessments under Government Code section 70373 and section 1465.8, subdivision (a)(1), and a restitution fine under section 1202.4, subdivision (b), was unconstitutional because the court failed to make a determination that he had the ability to pay the assessments and fine.

We remand the matter for the limited purpose of allowing the trial court to decide whether to exercise its discretion to strike the five-year enhancement imposed under section 667, subdivision (a)(1), but otherwise affirm the judgment.

FACTS

Prosecution

First Assault

On April 20, 2016, at approximately 5:15 p.m., Fredy Gonzalez was driving home in his truck on Elm Street, withhis window down. Gonzalez stopped at the stop sign at the intersection of Elm Street and Cypress Avenue behind another car. He felt something being pressed against the ribs on the left side of his body. When Gonzalez turned to look left, a man whom he later identified as Jimenez asked him, "Where you from?" and called him a "motherfucker." Gonzalez told Jimenez that he did not speak English and that he was from Mexico. Jimenez responded, "Oh, so you're a Paisa [a Mexican from Mexico]." Jimenez told Gonzalez that he was "from Cypress." Gonzalez saw the object pressing into him was a small, black, semiautomatic gun. Jimenez stepped down from the truck's running board, walked around to the passenger side of the truck, and told Gonzalez to park and wait for him. Gonzalez parked. Jimenez did not approach him again. He put the gun in his waistband and walked toward Cypress Avenue. The entire exchange between Jimenez and Gonzalez lasted about two minutes.

Prior to Jimenez approaching the car, Gonzalez saw him standing with another man who had a small dog on Asbury Street nearby. Jimenez was wearing jeans and a white T-shirt, and had tattoos on his chest. Gonzalez did not recall Jimenez wearing a baseball cap.

Gonzalez did not report the incident that night because he was afraid. He went to the police station and reported the crime the next day. About a week after Gonzalez made the report, investigating officer Los Angeles Police Department Detective Juan Aguilar visited him at work and asked him tolook at a six-pack photo line-up and let him know if any of the men was the person who assaulted him. Gonzalez identified Jimenez as the perpetrator. Gonzalez twice identified Jimenez again as the man who assaulted him, at the preliminary hearing and at trial. The prosecutor showed Gonzalez a photograph taken of Jimenez when he was arrested and asked if that was how the person who assaulted him was dressed. He responded that it was. Gonzalez estimated that Jimenez was 1.8 meters tall.⁶

Second Assault

Approximately 15 minutes after the incident involving Gonzalez, at around 5:30 p.m., Ricardo Guardado stopped his vehicle at a traffic light at the intersection of Future Street and Cypress Avenue, about one block away from the location where the first incident took place. Guardado had his windows rolled down. In his rearview mirror, Guardado saw a man whom he later identified as Jimenez start running toward Guardado's car on the right side of the street. Guardado was several cars back from the light and there were more cars behind him. Jimenez ran up to Guardado's car and banged hard on the passenger door. Jimenez leaned through the passenger window and pointed a gun to Guardado's head. He repeatedly asked Guardado which gang he was from. Guardado told Jimenez he was nota "Cholo" and did not belong to a gang. Jimenez demanded Guardado's wallet. Guardado told Jimenez he did not have it with him, and Jimenez left. The incident lasted approximately one minute.

Guardado started to drive away, but returned when he saw officers. He spoke with police between 5 and 10 minutes after the incident took place. Officers took him to look at several suspects who had been detained within an approximately one block radius of the crime scene. Guardado identified Jimenez as the perpetrator, approximately 10 minutes after the incident occurred. None of the other people who the police showed him were involved in the crimes. Jimenez was wearing blue pants, a white muscle shirt, and a hat when he assaulted Guardado. He also had tattoos on his chest. Guardado could not see any hair when Jimenez was assaulting him, because he had a cap on. Jimenez was wearing the same clothing when Guardado identified him, except that he was no longer wearing the hat.

At trial, Guardado identified Jimenez as the man who assaulted and tried to rob him. Guardado also explained his prior testimony at the preliminary hearing; there, Guardado first stated that he wasn't sure Jimenez was the person who assaulted him because he was frightened that Jimenez was a gang member, but ultimately he knew that he had to tell the truth and he identified Jimenez.

Greg Kozaki witnessed the assault on Guardado as he was approaching the intersection of Future Street andCypress Avenue. Kozaki saw a man run along the sidewalk and then suddenly cut onto Cypress Avenue. He was dressed in a white shirt, dark blue pants and a dark blue cap. He was approximately 5 feet, 10 inches tall. There was a second man who was also running about 20 to 30 yards behind the first man, but the second man was not running as quickly. The second man was wearing dark clothing and had a small dog with him. He was not carrying a firearm and did not interact with any of the motorists. The first man approached a stopped vehicle in front of Kozaki's car from the passenger side of the vehicle. The man reached for something and cocked his arm back. Kozaki's immediate impression was that the man was reaching for a gun. The object the man was holding was "something that had a very straight dark quality to it that appeared to be longer than [Kozaki's] hand." The man was speaking to someone in the vehicle in an "aggressive" manner. Kozaki put his car in reverse to get away from the area. He was only able to back up a little because there was a car behind him, so he drove forward and veered around the perpetrator. Once he passed the intersection, Kozaki called 911 to report the crime.

An audio recording of the call was played for the jury. In the call Kozaki told the 911 operator...