People v. JimenezPeople v. Jimenez
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted of three crimes in case No. 23CF03674 (stalking case)—stalking, misdemeanor sexual battery, and corporal injury. The information provided the convictions were based on defendant’s conduct occurring in September 2021. At trial, the evidence demonstrated defendant and M.S. were involved in a long-term on-and-off
While M.S. spoke with officers about the incident, defendant texted her, “You are really doing this right now? I’m going to have a reason why you don’t answer me.… Do not talk to the cops. You called 911. I literally just heard it on the scanner.” M.S. later told the officer about text messages defendant had sent her describing her location. At trial for the stalking case, evidence of defendant’s conduct before and after September 2021 was admitted. For example, in June 2015, defendant came to M.S.’s home, threw rocks at her window, and pushed her to the ground, breaking her wrist. During this incident, defendant called M.S. names and also threw rocks at her face. In July 2021, while defendant was under a restraining order, he went to M.S.’s home and scratched the rear end of her car. Also in July 2021, while under a restraining order, defendant walked by M.S.’s house while M.S. was with her daughter outside. In November 2021, defendant, while under a restraining order, vandalized M.S.’s car, and the next day went to M.S.’s house and yelled at her before further damaging her car. Defendant later dissuaded M.S. from testifying in the stalking case, which he was later charged with and convicted of in case No. 23CF04886 (dissuading a witness case).
After being charged in the stalking case, defendant was released on bail and ordered to appear. He did not appear, and he was eventually detained and charged with a
Ultimately, the court admitted at the trial for the failure to appear case: (1) a felony complaint charging defendant with three felony counts committed between July and November 2021 (felony case); (2) a March 2022 minute order in the felony case indicating defendant was denied release on his own recognizance and granted bail in the amount of $225,000; (3) a statement of rights in the felony case that included an agreement by defendant that he appear at all times and places ordered by the trial court or risk new charges; (4) a June 2022 information in the felony case charging three felonies; (5) an October 2022 minute order in the felony case indicating defendant was released on bail; (6) a January 2023 minute order in the felony case indicating defendant failed to appear and that his bail was forfeited; (7) a notice produced by the trial court that defendant’s bail had been forfeited due to his failure to appear for a trial readiness conference in the felony case; (8) a June 21, 2023 minute order in the felony case indicating that, while defendant was in custody, he was not able to be transported to court because “defendant refused transport”; (9) a June 28, 2023 minute order in the felony case indicating defendant was present for a hearing setting jury trial; and (10) a July 2023 minute order in the failure to appear case indicating defendant acknowledged he was being charged with a crime and waived a preliminary examination in the matter. The jury found defendant guilty of failure to appear.
Defendant was sentenced to an aggregate term of nine years for the stalking case, dissuading a witness case, and failure to appear case. The trial court imposed the upper term of five years for stalking based on aggravating circumstances that defendant had three prior felony convictions since 2006, served prior prison terms related to those convictions, and was unsuccessful on probation or parole, none of which were submitted to a jury or admitted to by defendant. It then sentenced him to consecutive sentences of
Defendant appeals.
DISCUSSION
I
There Was No Evidentiary Error
Defendant raises several issues of evidentiary error, which we review for an abuse of discretion. (People v. DeHoyos (2013) 57 Cal.4th 79, 131.) “ ‘To establish an abuse of discretion, defendants must demonstrate that the trial court’s decision was so erroneous that it “falls outside the bounds of reason.” [Citations.] A merely debatable ruling cannot be deemed an abuse of discretion. [Citations.] An abuse of discretion will be “established by ‘a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (People v. Johnson (2022) 12 Cal.5th 544, 605-606.)
A
The Trial Court Did Not Err By Admitting The Statement “Defendant Refused Transport” Contained In The June 21, 2023 Minute Order
Defendant contends the trial court abused its discretion by admitting into evidence a statement contained in the June 21, 2023 minute order providing “defendant refused transport” because the statement was hearsay and violated his right to confront witnesses. The People focus on the trial court taking judicial notice of the minute order, which did not extend to admitting statements contained in the minute order for the truth. While true the court granted judicial notice of the minute orders, the distinction between items admitted into evidence and those given judicial notice was not explained to the jury, and the prosecutor argued the truth of the contents of the judicially noticed documents during
1
The Statement Is Not Hearsay
For hearsay, the People point to
The thrust of defendant’s disagreement as to the applicability of
2
The Statement Did Not Violate Defendant’s Confrontation Right
Defendant also contends the statement’s inclusion violated his right to confront witnesses because the statement was testimonial in nature. To assess whether a particular statement was testimonial, we objectively consider all the circumstances to determine whether the primary purpose of the statement was to create a record for criminal prosecution. (Ohio v. Clark (2015) 576 U.S. 237, 244-245; see also Davis v. Washington (2006) 547 U.S. 813, 822 [explaining that statements “are testimonial when the circumstances objectively indicate … the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution”]; People v. Gallardo (2017) 18 Cal.App.5th 51, 66 [“ ‘the statement must have been given and taken primarily for the purpose ascribed to testimony—to establish or prove some past fact for possible use in a criminal trial’ ”].)
Here, the statement was given as part of the administrative process of tracking defendant’s transportation and appearance in court. The statement was not made for evidentiary purposes or to build a factual record for use in a criminal trial. Defendant disagrees, arguing the primary purpose of the statement cannot be merely administrative because it was made in the context of defendant’s failure to appear case. Not so. The statement was made in the context of transporting defendant to court for his stalking case.
B
The Trial Court Did Not Abuse Its Discretion By Finding Several Court Documents Relevant And Not Unduly Prejudicial
As he did in the trial court, defendant challenges several items of evidence admitted during his failure to appear trial as being irrelevant or unduly prejudicial. We disagree with each of these challenges and address them in turn.
The rules of evidence pertaining to defendant’s challenges are well established. Only relevant evidence is admissible. (
Defendant first challenges admission of the complaint and information filed in defendant’s stalking case, i.e., the underlying felony charges supporting his failure to appear charges. He argues the court should have redacted two of the three felony charges because it was only necessary for the prosecution to prove defendant was charged with a single felony. Defendant has not shown an abuse of discretion. The court redacted the crimes charged for each felony minimizing potential prejudice regarding the underlying allegations. The fact defendant was charged with more than one felony was probative to assessing defendant’s motivation to evade court, and listing three unspecified felony
Defendant next contends the trial court abused its discretion by admitting into evidence the March 2022 minute order because it provided defendant was denied release on his own recognizance and bail was set at $225,000. To defendant, this was unduly prejudicial because it communicated to the jury that a judge believed defendant was a flight risk. We again discern no abuse of discretion. The minute order was relevant to show the timeline of defendant’s case and the fact he was granted bail, which in turn explained his later release from custody, forfeiture of bail, and denial of bail. Defendant provides no indication how the amount of bail and the fact defendant was denied release on his own recognizance invited the jury to rely on the judge’s prior decisions instead of making its own independent findings. To the contrary, the minute order gave no legal standards contextualizing the judge’s decisions to grant bail and deny defendant release on his own recognizance. Accordingly, the trial court did not abuse its discretion by admitting the March 2022 minute order.
Finally, defendant contends the trial court abused its discretion by admitting the statement of rights, wherein defendant agreed to appear to all court ordered hearings and acknowledged failure to do so would constitute a new charge. Defendant argues this document lacked proper foundation and was unduly prejudicial because defendant’s knowledge was not an element of failure to appear and created the impermissible inference that defendant had the propensity to evade court.
As to foundation, there is adequate indicia the statement of rights was signed by defendant. (See People v. Lucas (1995) 12 Cal.4th 415, 466-467 [proper foundation is laid when the court is satisfied a preliminary fact was proved by a preponderance of the evidence].) The statement of rights was a document submitted to the court in defendant’s case and certified by his counsel. There was no need to further lay foundation for the
II
There Was No Prosecutorial Error2
During closing argument in defendant’s failure to appear trial, the prosecutor argued: “[T]here’s this presumption that you get to have [related to] intent.… [¶] … But the law in this kind of case actually gives you a presumption that if the [d]efendant did not come back to court within 14 days after the date he was ordered to appear, you all may presume that it was for the purposes of evading the court process. You can just presume that. Because he didn’t come back for almost five months. This presumption only requires 14 days. [¶] So, [m]embers of the [j]ury, you don’t even have to worry
Defendant contends this constituted prosecutorial error because defendant’s willful failure to appear for over 14 days is not a legal presumption that the failure to appear was for the purpose of evading the process of the court, but merely an inference the jury is permitted to draw by statute. (
“ ‘[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly to attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements [citation].’ [Citation.] Improper comments violate the federal Constitution when they constitute a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citation.] Improper comments falling short of this test nevertheless constitute misconduct under state law if they involve use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] To establish misconduct, defendant need not show that the prosecutor acted in bad faith. [Citation.] However, [defendant] does need to ‘show that, “[i]n the context of the whole argument and the instructions” [citation], there was “a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.[” ]’ [Citation.] If the challenged comments, viewed in context, ‘would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.’ ” (People v. Cortez (2016) 63 Cal.4th 101, 130.)
III
There Was No Cumulative Error
Defendant argues cumulative error resulted from the combined errors related to his evidentiary and prosecutorial error claims. Because we concluded there was no error affiliated with defendant’s evidentiary and prosecutorial error claims, we conclude there was no cumulative error. (People v. Chatman (2006) 38 Cal.4th 344, 410.)
IV
The Court’s Reliance On Defendant’s Prior Prison Terms And Unsuccessful Performance On Probation/Parole To Impose An Upper Term Was Harmless
Defendant contends the trial court erred by relying on his prior prison terms and unsuccessful performance on parole/probation to impose the upper term sentence for stalking. We agree the court could not have relied on defendant’s prior prison terms and performance on parole and probation, but conclude the error was harmless.
Recently, in People v. Wiley (2025) 17 Cal.5th 1069 (Wiley), our Supreme Court held that, under both
The People argue that, even though the trial court erred, the error was harmless because any rational jury would have found true beyond a reasonable doubt defendant served a prior prison term related to his prior convictions and was unsuccessful on parole and probation. We agree.3
“ ‘[A] sentence imposed under ...
One factor the trial court relied on when imposing an upper term sentence for the stalking case was defendant’s prison terms for his prior stalking, corporal injury, and drug felony convictions. Defendant’s probation report indicates he served a prison
As for defendant’s prior performance on parole, probation, and postrelease community supervision, Wiley provides more specific guidance. (Wiley, supra, 17 Cal.5th at p. 1090.) In that case, there was evidence of the defendant’s performance on probation in three cases. (Ibid.) In one, he “successfully completed a residential drug treatment program, obtained his driver’s license, paid all court ordered fines and fees, and committed no probation violations. In two other cases, [his] performance on probation was ‘marked by probation violations due to his arrest and conviction of new misdemeanor and felony law violations.’ Probation was revoked and a prison term was executed. After his release from prison on postrelease community supervision, [he] was convicted of a new misdemeanor offense, but ‘was fairly compliant during the remainder of his supervision term.’ ” (Id. at pp. 1090-1091.)
The People in that case argued that “ ‘[b]ecause committing an offense on probation is such a clear violation of both the letter and spirit of probation’s strictures, no rational jury could conclude that a defendant who committed crimes two out of the three times that he was on formal probation had performed satisfactor[ily] on probation.’ ” (Wiley, supra, 17 Cal.5th at p. 1091.) Our Supreme Court rejected this argument and noted that the probation report listed the defendant’s performance on probation as both an aggravating and mitigating factor, and so the court “[could not] discount the possibility that either counsel in a contested jury trial might have presented live testimony on this factor that would have affected the jury’s determination. [Citation.] Nor [could it]
Our case is not similar to Wiley. Unlike Wiley, there is no evidence in the record demonstrating defendant ever successfully completed probation, parole, or postrelease community supervision. Following defendant’s 2006 stalking conviction, defendant violated probation, his probation was revoked, and he served a prison sentence. He then violated parole multiple times and was returned to custody to finish his prison sentence. Following defendant’s felony convictions for corporal injury and a drug offense, he was sentenced to prison. Upon release, defendant violated postrelease community supervision three times in six months. Further, between these felony convictions, defendant was convicted of other drug offenses for which he was given probation. Defendant did not successfully complete probation for these offenses either.
Defendant contends his drug addiction mitigated his violations such that a jury could reasonably find his performance was overall successful. We disagree. Defendant’s argument explains why he was unsuccessful, it does not present evidence of success. While defendant’s drug use may influence his criminal behavior, the record reflects consistent and repeated probation/parole violations and drug offenses. In other words, there is no indication defendant successfully used probation, parole, or postrelease community supervision as a means of addressing the causes of his criminal behavior. Accordingly, unlike the court in Wiley, we cannot conclude that defendant could have presented live testimony on this aggravating factor that would have affected a jury’s determination. Thus, the trial court’s error was harmless beyond a reasonable doubt.
Substantial Evidence Supports The Trial Court’s Decision Under Section 654
Defendant raises two sentencing challenges under
A
Applicable Law
Multiple punishments are also permissible where a course of criminal conduct is divisible in time and “ ‘the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her [or their] intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken’ ” and creating a “ ‘new risk of harm.’ ” (People v. Gaynor (2019) 42 Cal.App.5th 794, 800, 804; see People v. Peyton (2014) 229 Cal.App.5th 1063, 1080.) “The question of whether
B
Section 654 Does Not Apply To The Stalking And Corporal Injury Sentences
Defendant contends he could not be sentenced to both corporal injury and stalking because his corporal injury was the means by which he accomplished the stalking. Not so.
The offense of stalking occurs when the defendant “willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and … makes a credible threat with the intent to place that person in reasonable fear for their safety, or the safety of their immediate family.” (
The record contains ample evidence of stalking apart from defendant’s assaultive conduct inside M.S.’s home. Defendant texted M.S. about her location, showed up at her home while under a restraining order, and vandalized her car. He monitored 911 calls and threatened M.S. after the assault. This was done with the objective of harassing M.S. and putting her in fear for her safety. (
C
Section 654 Does Not Apply To The Corporal Injury And Sexual Battery Convictions
Defendant also contends he could not be sentenced to both corporal injury and misdemeanor sexual battery because both convictions are based on the same conduct. Not so.
The evidence demonstrated defendant attacked M.S. by pinching her breasts, biting her neck, and biting her pelvic area. Defendant then left the home, which provided an opportunity for reflection. Instead of leaving, defendant reentered M.S.’s home, pushed her on the bed, and slapped her face, leaving a mark. With his reentry of M.S.’s home, defendant increased the risk of harm and renewed his criminal purpose, justifying multiple punishments.
Defendant argues the prosecution should be precluded from bifurcating defendant’s conduct into two courses of action since it argued to the jury it could rely on all of M.S.’s injuries when deciding whether defendant committed corporal injury. But that is not the test under
DISPOSITION
The judgment is affirmed.
/s/
ROBIE, Acting P. J.
We concur:
/s/
FEINBERG, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.