Opinion
F077507
05-15-2020
THE PEOPLE, Plaintiff and Respondent, v. CORNELIO JIMENEZ, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15903948)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Chung Mi Choi, Deputy Attorneys General, for Plaintiff and Respondent.
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Cornelio Jimenez was convicted by jury of dozens of crimes including 34 counts of sexual abuse against two minor victims (Counts 1 through 34). The jury found true an allegation Jimenez abused two victims under the age of 14. The court found true Jimenez previously suffered a qualifying strike conviction. The prior conviction was alleged as both a prior strike and a prior serious felony enhancement. He was sentenced to serve 780 years to life in prison
We address two claims raised on appeal. First, Jimenez alleges there is insufficient evidence to prove count 13, a charge of lewd and lascivious act with a child under age 14 (Pen. Code, § 288, subd. (a)). Second, he claims the trial court erroneously increased the ultimate sentence by 110 years.
Undesignated statutory references are to the Penal Code.
We deny the first claim but find merit in the second. The sentence is vacated on that basis and we remand for a new sentencing hearing.
Jimenez raised two other claims related to the trial court's sentencing discretion. At the time he was sentenced, trial courts lacked discretion to dismiss prior serious felony enhancements. After he was sentenced, the Legislature enacted Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2), which conferred discretion to dismiss such enhancements. He also contends the court abused its discretion by declining to dismiss the prior strike. We do not address these contentions because they are technically moot and not ripe, respectively, by virtue of our decision to vacate the sentence and remand for a new sentencing hearing.
BACKGROUND
Charges
The Fresno County District Attorney charged Jimenez with 37 crimes including 34 counts of section 288, subdivision (a). As to these counts, it was alleged Jimenez abused two separate victims under the age of 14 (§§ 667.61, subds. (b)-(i), 1170.12, subds. (a)-(j), 667, subd. (a).)
Jimenez was also charged with failing to register as a sex offender (count 35) and possessing and creating child pornography (counts 36 and 37). These counts also included prior strike allegations. Count 36 included an allegation Jimenez possessed more than 600 images of child pornography.
Trial Evidence
It is unnecessary to recite the majority of the facts. Suffice it to say, there was overwhelming evidence Jimenez possessed several thousand items of child pornography and sexually abused two minor victims many times. He documented much of his abuse with photographs and videos.
In count 13, Jimenez was charged with violating section 288, subdivision (a) "[o]n or about June 15, 2014, through June 25, 2015 ... as depicted in video file 'E[] 2.3g2'." The video file was introduced into evidence as People's Exhibit 33. A law enforcement officer testified the video was created on August 4, 2013.
Verdict and Sentence
Jimenez was convicted as charged and all special allegations were found true. He was sentenced to serve 780 years to life in prison as follows: 25 years to life for violating section 288, subdivision (a) with multiple minor victim special allegations (§ 667.61, subds. (e)(4) & (j)(2)), doubled to 50 years to life for having a prior strike conviction (§§ 667, subds. (e)-(i), 1170.12, subds. (a)-(j)), plus five years for a prior serious felony conviction (§ 667, subd. (a)), for a total of 55 years to life on each count 1 through 34. Count 1, 2, 3, 4, 5, 6, 13, 14, 19, 21, 23, and 29 were consecutive sentences totaling 660 years to life. Counts 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 20, 22, 24, 25, 26, 27, 28, 30, 31, 32, 33, and 34 were concurrent sentences but the five-year prior serious felony enhancement for each was consecutive to the other consecutive sentences for an additional 110 years equaling 770 years to life. Count 36 was a consecutive 10 year sentence totaling 780 years to life. Counts 35 and 37 were each three year concurrent sentences.
Prior to trial, Jimenez pled no contest to failing to register as a sex offender (count 35).
The trial court dismissed the prior strike allegation on these two counts.
DISCUSSION
I. The Evidence Is Sufficient to Prove Count 13
Jimenez "contends that his conviction for nonforcible child molestation that was alleged in count 13 must be reversed because there was insufficient evidence from which the jury could find beyond a reasonable doubt that he committed such an offense between the alleged dates. [Jimenez] reasons that the video that supported this alleged offense was created on August 4, 2013, which was well outside the date range on which this offense was alleged to have been committed, and was well outside the dates during which [Jimenez] ... would have had access to" the victim. We disagree.
Section 955 provides that "[t]he precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." Accordingly, "evidence is not insufficient merely because it shows the offense was committed on another date." (People v. Peyton (2009) 176 Cal.App.4th 642, 660 (Peyton).)
The exact same argument was made and rejected in Peyton, supra, 176 Cal.App.4th 642. The court there stated:
"Lastly, defendant argues there is insufficient evidence—indeed, he argues, there is no evidence—that he committed any of the offenses charged in the second amended information because it alleged that each crime occurred 'on or about October 1, 2005,' and the evidence presented at trial clearly showed that, by that time, defendant had moved out of the home he rented with C., C. had died, and K. was living with J.M. Instead, the evidence showed that all of the crimes were committed during the fall of 2004.
"The prosecution was not required to show that the crimes took place 'on or about October 1, 2005,' but only 'reasonably close to [that day].' (Judicial Council of Cal.Crim. Jury Instns., CALCRIM No. 207 [Proof Need Not Show Actual Date].) The precise date on which an offense
was committed need not be stated in an accusatory pleading unless the date is material to the offense (§ 955), and the evidence is not insufficient merely because it shows the offense was committed on another date. [Citation.] The October 1, 2005, date was not material to any of the charged offenses. Nor has defendant shown he was prejudiced by the variance between the October 1, 2005 date, as set forth in the second amended information, and the evidence at trial that the offenses occurred during the fall of 2004." (Peyton, supra, 176 Cal.App.4th at pp. 660-661.)The court concluded the evidence was sufficient. (Ibid.) This case is no different.
Jimenez does not argue time is a material component of the offense. For example, there is no claim the statute of limitations was violated or that he in fact committed no such crime due to alibi or impossibility. Indeed, he made no such argument in the trial court nor on appeal. Rather, he acknowledges "the evidence presented in support of this count indicated ... [he] may have committed such an act ... in August of 2013."
Accordingly, time is not a material component of the offense. We find the evidence was sufficient to prove count 13.
II. The Trial Court Erred In Sentencing
All told, Jimenez was sentenced to serve 34 life sentences in prison. Of these life sentences, 12 were consecutive and 22 were concurrent. On the 22 concurrent sentences, the court imposed one five-year prior serious felony enhancement each. The court ordered those enhancements to run consecutive to the 12 consecutive life sentences, thereby adding 110 years to the total sentence.
Jimenez alleges those 22 consecutive enhancements are impermissible because the accompanying life sentence on each was concurrent. The People concede the error. We agree.
"[T]wo different sentencing schemes coexist today: one determinate, the other indeterminate." (People v. Felix (2000) 22 Cal.4th 651, 654 (Felix).) "[B]oth straight life sentences and sentences of some number of years to life are indeterminate sentences not subject to" determinate sentencing laws. (Id. at p. 659.)
"In any given case, an overall sentence might include both determinate terms and indeterminate terms. Whenever a person is convicted of two or more crimes, the court must impose either concurrent or consecutive sentences. (§ 669.)" (Felix, supra, 22 Cal.4th at p. 655.)
"Under the [determinate] sentencing scheme an enhancement may not be imposed as a subordinate term on its own." (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310 (Mustafaa).) "[W]here the trial court is required to stay a determinate sentence under section 654 or exercises its discretion to run the determinate sentence concurrently with the indeterminate sentence, the prior serious felony enhancement that attaches to those determinate counts must also be stayed or ordered to run concurrently." (People v. Tua (2018) 18 Cal.App.5th 1136, 1143 (Tua).)
"The procedure for sentencing a person convicted of two or more felonies does not contemplate imposing an enhancement separately from the underlying crime." (Mustafaa, supra, 22 Cal.App.4th at p. 1310.) Although these cases involved determinate sentencing laws, we conclude the ultimate reasoning applies equally to indeterminate sentencing.
Enhancements " 'do not constitute separate crimes or offenses, but simply are the basis for the imposition of additional punishment for the underlying substantive offense.' " (People v. Oates (2004) 32 Cal.4th 1048, 1066.) Enhancements are not "free-floating and totally independent of the predicate offense(s)." (Tua, supra, 18 Cal.App.5th at p. 1142.)
A trial court may not separate the sentence for the underlying offense from an accompanying enhancement because enhancements are "attached" to the underlying offense. (See Felix, supra, 22 Cal.4th at pp. 655-656 [enhancements are "attached" to indeterminate terms]; People v. Williams (2004) 34 Cal.4th 397, 405 [prior conviction enhancement applies to "each count of third strike sentence"]; People v. Ahmed (2011) 53 Cal.4th 156, 161 [an enhancement " 'justifies a higher penalty than that prescribed for the offenses themselves.' "]; Tua, supra, 18 Cal.App.5th at p. 1142 ["it is quite clear from the statutory language that the enhancement is not completely independent of the predicate offenses because only certain crimes—i.e., serious felonies as defined in section 1192.7—will support a section 667, subdivision (a) enhancement.".) Taken together, the underlying offense and each attached enhancement constitute a single term of imprisonment. (See, e.g., People v. Kramer (2002) 29 Cal.4th 720, 724-725 [when comparing punishment on separate crimes "longe[st] potential term of imprisonment" includes applicable enhancements].) Absent a mandatory consecutive sentencing statute, that single term of imprisonment may run either concurrent or consecutive to any other term of imprisonment. (§ 669, subd. (a).)
One such mandatory consecutive sentencing statute applies in this case. Section 667, subdivision (c)(6) requires consecutive sentences for felonies "not committed on the same occasion, and not arising from the same set of operative facts ...." "The phrase 'committed on the same occasion' is commonly understood to refer to at least a close temporal and spatial proximity between two events, although it may involve other factors as well." (People v. Deloza (1998) 18 Cal.4th 585, 594; see People v. Lawrence (2000) 24 Cal.4th 219, 226-234 [further explicating test, including same set of operative facts language].)
The trial court here erred by separating the sentence on the 22 concurrent life sentences from their accompanying five-year prior serious felony enhancements. Because Jimenez's sentence otherwise was not the statutory maximum, "the trial court [must] exercise its sentencing discretion anew." (People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15; People v. Lopez (2019) 42 Cal.App.5th 337, 342.)
The trial court erroneously believed consecutive sentences for the enhancements were required by law; the trial court attorneys reinforced that belief. We are unsure where the belief originated. While section 667, subdivision (a) states "[t]he terms of the present offense and each enhancement shall run consecutively," this means only that the enhancement must run consecutive to the attached offense. It does not mean the combined underlying offense and enhancement cannot run concurrent to the sentence on a separate offense. --------
DISPOSITION
The sentence is vacated. We remand for a new sentencing hearing consistent with this opinion.
/s/_________
SNAUFFER, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
SMITH, J.