People v. Jimenez CA4/1 ( 2022 )

Filed 12/9/22 P. v. Jimenez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080923
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1902202)
ANTHONY DAVID JIMENEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Stephen J. Gallon, Judge. Affirmed.
Mark D. Johnson, 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, Arlene A.
Sevidal and Minh U. Le, Deputy Attorneys General for Plaintiff and
Respondent.
INTRODUCTION
After his brother refused to loan him $40, Anthony Jimenez became
angry and attacked his 64-year-old stepfather, Dale B., “scalp[ing]” his head
and cutting his face with a knife. Jimenez then knocked Dale down and
began tying up Dale with duct tape. Dale broke loose and told Jimenez,
“[W]e’re gonna get in the truck and go get your money and you can stop all
this.” Despite bleeding profusely from his head and face injuries, Dale drove
Jimenez five miles to a bank ATM to withdraw the money Jimenez wanted—
all while Jimenez held the knife to Dale’s throat. A jury convicted Jimenez of
kidnapping to commit robbery (Pen. Code,1 § 209, subd. (b)(1)), among other
felony charges. Jimenez argues his aggravated kidnapping conviction must
be reversed, asserting there was insufficient evidence that he used force to
move Dale because Dale voluntarily consented to going to the ATM. We
conclude Jimenez’s argument has no merit, and so we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Trial
A. Prosecution’s Case
When Dale married Rosemary B., he became the stepfather of her three
young boys, ages three, five, and seven. He raised the boys, including
Jimenez, as his own and did everything a father would do with his sons,
including coaching their sports teams. Dale and Rosemary were married 36
years at the time of trial.
Jimenez, who was in his late thirties, had been living with Dale and his
mother off and on for most of his life. One morning in May 2019, Dale went
1 All further statutory references are to the Penal Code.
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with Jimenez to help Jimenez buy a car. Later that day, Jimenez drove the
car to his brother’s house to show it off.
When Jimenez returned home later that evening, only Dale was home
because Rosemary was away on a trip. Jimenez told Dale he needed a $40
loan from his brother but his brother said he did not have the money. During
the conversation, Jimenez “turned into another person” and became enraged
with Dale. Jimenez yelled at Dale about needing the $40, and accused Dale
of cheating on Jimenez’s mother and watching Jimenez’s adult film videos.
None of this made sense to Dale.
Jimenez then went to his bedroom, returned with a knife, grabbed
Dale, and started to “scalp” him. He grabbed Dale by his hair, pulled back
the skin of Dale’s scalp, and began cutting it with his knife. Dale “let him
because [he] didn’t want to fight back.” At this point, the prosecutor observed
Dale “becoming emotional” in his testimony and Dale agreed. In the attack,
he punched Dale in the face, and cut his nose and ear. As Dale’s head bled
onto his face and obstructed his vision, Jimenez kept yelling at Dale and
asking him for the $40. Dale told Jimenez he did not have the money.
Dale then went into the bathroom to clean up his face and to try to stop
the bleeding. But Jimenez followed him into the bathroom. Dale “got a little
mad” and told Jimenez, “[C]ome on, . . . let’s go get you some money so that
you can stop being angry.” When the prosecutor asked Dale if he was afraid
of what was happening and how Jimenez was behaving, Dale said that he
“wasn’t really afraid.” He was “just trying to keep [Jimenez] calm,” and
thought perhaps Jimenez had cut him “by accident.” The prosecutor asked
Dale, “So while everything that’s going on at the house, him using a knife to
your head, punching you and cutting other parts of your face, at that point
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you didn’t believe he was going to kill you?” Dale responded, “I don’t want to
think that.”
Dale left the bathroom and tried to get to his truck in the garage.
Again, Jimenez followed him. In the garage, Jimenez knocked Dale down
and tried to tie him up with duct tape. He tried to put duct tape around
Dale’s head and his mouth. He put duct tape around Dale’s wrist, but Dale
“broke loose.” Dale got up and said, “[Y]ou know what, we’re gonna get in the
truck and go get your money and you can stop all this.” Dale was “hoping”
that by taking Jimenez to the ATM to get “his money,” he could get Jimenez
to “calm down and do whatever he needed to do with the $40.” He agreed
with the prosecutor he was “hoping that by doing this the violence would
end.” So he “persuaded” Jimenez to get in the truck, and go with Dale to the
ATM to withdraw the $40.
When they got into Dale’s new truck, Dale sat in the driver’s seat and
Jimenez sat directly behind Dale. Dale drove Jimenez to his bank’s ATM.
During the five-mile drive to the ATM, Jimenez held the same knife he used
to cut Dale’s head against Dale’s throat. Jimenez “ ‘kept slapping’ ” him with
the knife and at one point, he grabbed Dale’s hair and pulled Dale back. Dale
does not know how he was able to drive because he was still bleeding from his
head and face injuries. Still, Dale claimed he was not afraid for his life at
this point.
When they reached the drive-through ATM, with the knife still at his
neck, Dale withdrew $40 from his account and gave it to Jimenez. After Dale
handed him the money and they were on their way home, Jimenez took the
knife away from Dale’s neck. Dale was concerned about his bleeding head
injury and believed he needed to get to a hospital.
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Halfway home, Jimenez “all of a sudden” began crying and asked Dale
what had happened to cause Dale’s bleeding. Dale “kept [his] composure”
and “played it off,” telling Jimenez, “Oh, I just bumped my head on . . . the
thing.” When they arrived home and got out of the truck, Dale deliberately
let Jimenez lead the way to the house. Once Jimenez was about five or six
feet in front of him, Dale jumped back into his truck and “took off” for the
hospital. Dale did not go to the hospital with Jimenez because he felt he
“needed to get away from him” and “let him cool down.” Dale explained he
was “[a] little” afraid of Jimenez, at this point.
As Dale drove away, Jimenez got into his own car and cut off Dale in
the street. Jimenez jumped out of his car, approached Dale in his truck, and
asked, “[W]hat do you think you’re doing?” Dale put his truck in reverse,
knocking Jimenez down, made a U-turn, and started driving back toward the
house. But Jimenez got back in his car and used it again to cut off Dale at
the other end of the street. Dale made a three-point turn and started driving
away. Dale thought he had left Jimenez when suddenly Jimenez rammed his
car into Dale’s truck. Dale explained, at this point, he “got scared.” Jimenez
tried to ram him again, so Dale “punched” the gas and got away.
At the emergency room, Dale received 13 stitches to the cut on his
head. He had multiple cuts on his nose, cheek, and head.
During Dale’s testimony, the prosecutor entered 13 photographs into
evidence.2 Exhibits 1 and 2 are photographs of Dale at the ATM with blood
coming down his face from his injuries. Exhibits 3, 4, and 6 are photographs
of Dale’s head and facial injuries taken at the emergency room. Exhibit 3
shows Dale’s scalp, with blood on the left side of his head where Jimenez
2 We requested these exhibits from the Superior Court and have
reviewed them in deciding this appeal.
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“scalped” him, and a cut to his nose. Exhibit 4 shows Dale’s face with a cut to
the front of his nose. Exhibit 6 shows the 13 stitches to Dale’s scalp.
Exhibits 7 and 8 show the interior of Dale’s truck with blood, including on the
steering wheel and gear shift. Exhibit 9 shows damage to the back of Dale’s
truck. Exhibits 12 and 13 show a used length of duct tape and a roll of duct
tape with blood.
When the prosecutor asked the trial court for permission to publish the
photographs to the jury by showing them on Dale’s monitor, Dale repeatedly
objected. He asked the court, “Is [the prosecutor] gonna put that up there?”
and when the court said yes, Dale stated: “I don’t want to watch.” When the
prosecutor attempted to publish Exhibit 12, the photograph of the duct tape,
on his monitor, Dale told her, “Don’t put that on there.” The court explained,
“I know this is difficult, but you will have to answer questions.” Dale
responded, “She was trying to turn the monitor on, and I don’t want the
monitor on.”
Dale acknowledged that reporting Jimenez’s attack on him has caused
“friction” with his wife Rosemary and she has been upset with him. He
explained: “I’m the stepdad. She’s the biological mother. And we both love
Anthony. But, yes, it’s been quite a struggle knowing that we had this
incident.” Dale admitted it was “very true” that he did not want to be in
court.
B. Defense Case
Jimenez called his mother, Rosemary, and his aunt in his defense.
Rosemary testified that she suspected Jimenez had a mental illness in 2019
because she had heard him talking to himself. Rosemary also testified that
she had observed Jimenez “slugging” himself in the head. Jimenez’s aunt
testified that over the period of 2014 to 2019, she thought Jimenez had a
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mental illness because “his entire persona changed like a switch”; she saw
him talking to himself; and she noticed that he talked about people following
him, trying to kill him, and trying to take his money.
II.
Verdict and Sentencing
After deliberating for less than one day, the jury convicted Jimenez on
the four charged counts: kidnapping to commit robbery (§ 209, subd. (b)(1);
count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); first
degree robbery (§§ 211, 212.5, subd. (b); count 3); and resisting a peace officer
(§ 148, subd. (a)(1); count 4). As to counts 1 and 4, the jury found true that
Jimenez used a deadly and dangerous weapon, a knife, in the commission of
those offenses. (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)). The jury also
found it true that Jimenez personally inflicted great bodily injury on the
victim in the commission of the aggravated kidnapping (§§ 1192.7, subd.
(c)(8), 12022.7, subd. (a)).
In a bifurcated proceeding, Jimenez admitted a prior strike conviction
(§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1), which the trial court dismissed
on Jimenez’s Romero3 motion under section 1385.
The trial court sentenced Jimenez to a total prison term of three years
plus seven years to life, consisting of: an indeterminate term of seven years
to life for kidnapping to commit robbery conviction (count 1) plus a
consecutive term of one year for the associated dangerous weapon
enhancement; a concurrent, low term of two years for the deadly weapon
assault conviction (count 2); a consecutive, low term of 2 years on the first
degree robbery conviction (count 3); and a concurrent jail term of 180 days for
3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
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the resisting a peace officer conviction (count 4). The court imposed and
struck the punishment for the remaining enhancements.
DISCUSSION
On appeal, Jimenez challenges only the sufficiency of the evidence to
support his conviction for kidnapping to commit robbery, or aggravated
kidnapping. In evaluating his claim, we review the entire record in the light
most favorable to the prosecution and determine whether it contains
substantial evidence from which a reasonable trier of fact could find Jimenez
guilty beyond a reasonable doubt. (People v. Rountree (2013) 56 Cal.4th 823,
852−853 (Rountree).) We presume the existence of every fact the trier could
reasonably deduce from the evidence in support of the judgment (People v.
Jackson (2014) 58 Cal.4th 724, 749), and we do not substitute our judgment
for that of the jury or reverse merely because the evidence might also support
a different finding (People v. Hill (1998) 17 Cal.4th 800, 849).
Under California law, a person is guilty of kidnapping if he or she
“forcibly, or by any other means of instilling fear, steals or takes, or holds,
detains, or arrests any person in this state, and carries the person into
another country, state, or county, or into another part of the same county[.]”
(§ 207, subd. (a).) The crime of kidnapping requires that “the victim’s
movement must be accomplished by force or any other means of instilling
fear” (People v. Majors (2004) 33 Cal.4th 321, 326–327 (Majors)), and the
movement must be without the victim’s consent (Rountree, supra, 56 Cal.4th
at p. 852). “[T]he concepts of consent and force or fear ‘are clearly
intertwined’ ” (Majors, at p. 327), and there can be no kidnapping “[i]f a
person’s free will was not overborne by the use of force or the threat of force”
(People v. Hill (2000) 23 Cal.4th 853, 856 (Hill)). And when the kidnapping is
committed for robbery, the offense is aggravated kidnapping and subject to
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the greater punishment of life imprisonment with the possibility of parole.
(§ 209, subd. (b)(1); see People v. Curry (2007) 158 Cal.App.4th 766, 778–779.)
Here, the trial court correctly instructed the jury that to prove Jimenez
guilty of kidnapping for the purpose of robbery under section 209, subdivision
(b), the People must prove:
“1. The defendant intended to commit robbery;
“2. Acting with that intent, the defendant took, held, or detained
another person by using force or by instilling a reasonable fear;
“3. Using that force or fear, the defendant moved the other person
[or made the other person move] a substantial distance;
“4. The other person was moved or made to move a distance
beyond that merely incidental to the commission of a robbery;
“5. When that movement began, the defendant already intended
to commit robbery;
“6. The other person did not consent to the movement;
“AND
“7. The defendant did not actually and reasonably believe that
the other person consented to the movement.” (CALCRIM
No. 1203) (Italics added.)
The jury was further instructed that “[i]n order to consent, a person must act
freely and voluntarily and know the nature of the act.” We presume the jury
followed the instructions given to it. (People v. Case (2018) 5 Cal.5th 1, 32.)
Despite the extreme violence he inflicted on his stepfather, Jimenez
contends there was insufficient evidence that he used force or fear to compel
Dale to go to the bank (element 3) or that Dale went against his will (element
6). He contends this is so because Dale testified “the trip to the bank” was
his idea, he was not afraid during the violent ordeal, and that he even had to
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“persuade” Jimenez to go. We disagree. Contrary to Jimenez’s contention,
there was sufficient evidence from which the jury could find both elements 3
and 6 were satisfied.
The evidence established the following. Jimenez “scalped” Dale with a
knife, by pulling his hair back and cutting into his scalp. He left a gash in his
stepfather’s head that required 13 stitches. After inflicting this injury,
Jimenez also punched Dale in the face, and cut his nose and ear with the
knife. As his stepfather bled down his face, Jimenez said he needed $40 and
Dale told him that he did not have the money. Jimenez followed Dale into
the bathroom, still holding the knife in anger, at which point, Dale told
Jimenez, “[L]et’s go get you some money so that you can stop being angry.”
(Italics added.) Jimenez again followed Dale as he tried to get to his car in
the garage, and there Jimenez knocked him down and tried to duct-tape his
mouth and his wrists. When Dale broke loose, he told Jimenez, “[W]e’re
gonna get in the truck and go get your money and you can stop all this.”
(Italics added.) Although he claimed to not be afraid in these moments, Dale
testified he was “hoping” that by suggesting they go to the bank to get the
money, “the violence would end.” It did not. Dale drove Jimenez five miles to
his bank’s ATM, with Jimenez behind him, holding the same knife to his
throat. Jimenez slapped him with the knife and, again, grabbed Dale’s head
by the hair and pulled him back. The photographs of Dale at the ATM
showed Dale still bleeding from his head as he withdrew money, which we
know from Dale’s testimony he did at knifepoint. Only after he got his $40
did Jimenez take the knife away from Dale’s neck.
On these undisputed facts, and drawing all reasonable inferences, a
jury could reasonably conclude that Dale did not suggest and then consent to
going to the bank freely and voluntarily. Rather, Dale did so because he felt
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he had no other choice, or hope, if he were to make the violence end. (See,
e.g., Rountree, supra, 56 Cal.4th at p. 853 [in kidnapping case, prosecution
“aptly argued” that “ ‘[a] person who gets into the car with two total strangers
because these people are armed with a weapon is not acting freely and
voluntarily’ ”]; Majors, supra, 33 Cal.4th at p. 328 [discussing People v. La
Salle (1980) 103 Cal.App.3d 139, 146, (disapproved on other grounds
in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12) in which jury could find
victim was forced to consent to movement where victim “entered the car not
voluntarily, but because the defendant had her [toddler] daughter in the car,
and could have driven away with her . . . [thus] she felt she had no choice but
to cooperate”].) Indeed, these are the very conclusions the prosecutor argued
the jury should draw from the evidence, and the jury’s verdict on the
aggravated kidnapping count demonstrates they accepted the prosecutor’s
argument. Under these circumstances, there was sufficient evidence that
Dale’s free will was overborne by Jimenez’s use of force and violence,
sufficient for a kidnapping. (See Hill, supra, 23 Cal.4th at p. 856.)
We are not persuaded to the contrary by Jimenez’s hyperfocus on Dale’s
testimony that it was Dale’s idea to go to the bank, that he was not afraid
during the violence, and that he had to persuade Jimenez to go to the bank.
It is clear from the record that Dale was a reluctant and conflicted witness.
Dale explained his cooperation with law enforcement caused “friction” with
his wife, to whom he had been married for 36 years, and that he did not want
to be in court testifying against his son. He was still visibly emotional, even
nearly two and one-half years later, as evidenced by his objections to seeing
the photographic evidence of the trauma he suffered. The prosecutor argued
to the jury that Dale “may have said” he voluntarily went to the bank, “but
what did we hear?,” urging the jury to scrutinize Dale’s credibility on that
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very statement. The prosecutor argued Dale did not suggest and then drive
Jimenez to the bank “freely”; rather, “[h]e did it because of the madness of
what was happening to him, what the defendant was doing to him.”
On this record, the jury was entitled to disbelieve Dale’s testimony that
he was not afraid during Jimenez’s ongoing attacks, and the jury could
reasonably find that Dale was compelled to propose going to the bank out of
force or fear. The jury was properly instructed that it, alone, “must judge the
credibility or believability of the witnesses” and that it could “believe all,
part, or none of any witness’s testimony.” (CALCRIM No. 105; see People v.
Hillhouse (2002) 27 Cal.4th 469, 497 [witness’s credibility was for the jury to
determine, not an appellate court].) Although Dale testified it was his idea to
go to the bank and that could support an inference he voluntarily drove to the
ATM, a reviewing court is not permitted to reverse “simply because the facts
could be reconciled with a finding of innocence.” (People v. Arias (2011) 193
Cal.App.4th 1428, 1436 (Arias) [in kidnapping case, victim’s fear “caused him
to be a very reluctant witness,” and court reasoned that, although jury could
have concluded the victim “simply walked away from defendant and
defendant followed [him] to his apartment for a friendly chat,” the jury also
could have found the opposite, requiring the court to affirm].)
Jimenez next complains that pushing Dale to the garage floor and
trying to tie him up with duct tape was “wholly inconsistent” with compelling
Dale to go to the bank. But the prosecution argued that Jimenez changed his
plan when he realized he would not be able to get Dale into the truck or have
Dale get the money from the ATM if he was tied up. The prosecution argued
the jury should conclude that Jimenez instead decided to get Dale into the
truck and hold a knife to Dale’s neck to make sure that Dale complied.
Because the prosecution covered this point in closing, the jury clearly rejected
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the inference that Jimenez advocates here. (See Arias, supra, 193
Cal.App.4th at p. 1436; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin)
[reversal on a substantial evidence ground “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].’ ”].) As the reviewing court on appeal, we “must
accept logical inferences”—like this one—“that the jury might have drawn
from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
396.)
Moreover, even assuming Dale voluntarily proposed going to the ATM
to get the money Jimenez wanted, there was sufficient evidence from which
the jury could find that any initial cooperation on Dale’s part vanished the
moment Jimenez held and slapped a knife to Dale’s neck and grabbed Dale
by the hair as Dale drove to the bank. Dale testified Jimenez finally put
down the knife only after Dale handed him the money. Thus, the jury could
reasonably find that Jimenez prevented Dale from leaving the truck before
obtaining the money. Put another way, there was ample evidence from which
the jury could find that Jimenez’s use of physical force “vitiated any initial
voluntariness, converting the encounter into one in which [Dale] was being
transported against [his] will” sufficient to support Jimenez’s kidnapping
conviction. (People v. Hovarter (2008) 44 Cal.4th 983, 1018; People v. Camden
(1976) 16 Cal.3d 808, 814 [concluding that victim was prevented from leaving
the car because of the high rate of speed at which it was being driven and
confirming the rule that “ ‘[w]here the victim has at first willingly
accompanied the accused, the latter may nevertheless be guilty of
kidnap[p]ing if he subsequently restrains his victim’s liberty by force and
compels the victim to accompany him further’ ”].)
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Jimenez further asserts the record lacks evidence showing that Dale’s
liberty was ever restrained, such as evidence that Jimenez denied a request
by Dale to exit the truck. Jimenez argues that, for this reason, the evidence
could only show Dale consented to driving to the bank and that Jimenez
never “substituted his will” for Dale’s. But as we have already discussed, this
was not the only conclusion the jury could reasonably draw from the
evidence, and the jury was entitled to reject it. (See Arias, supra, 193
Cal.App.4th at p. 1436; Bolin, supra, 18 Cal.4th at p. 331.) Dale was not
required to test Jimenez’s resolve—i.e., by asking for permission to stop
driving or to get out of the truck—while Jimenez was holding a knife to his
throat. (See, e.g., People v. Power (2008) 159 Cal.App.4th 126, 137 [threat
that victim’s family would be harmed if victim did not have sex with
defendant was sufficient to establish fear required for kidnapping; although
victim might have gone to police or refused to comply, she was not required to
“test” the kidnapper to see if he was bluffing].)
Jimenez’s reliance on People v. Stephenson (1974) 10 Cal.3d 652 does
not require a different conclusion. In Stephenson, the victims voluntarily got
into the defendant’s car when he offered to drive them to their destinations,
and the defendant later robbed them. Contrary to the present case, the Court
of Appeal in Stephenson reasoned the victims “were enticed . . . by deceit or
fraud” to get into the defendant’s vehicle, and thus, there could be no
kidnapping because the victims were not “forcibly require[d] . . . to enter his
car.” (Id. at pp. 659−660.) But Jimenez did not use fraud or deceit to fool
Dale into getting into his truck and driving them to the bank. Rather,
Jimenez and Dale both understood they were going to the bank to get the
money Jimenez wanted—only after Jimenez yelled at, beat, scalped, cut, and
tried to tie up Dale. This was not consent under Stephenson. (See La Salle,
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supra, 103 Cal.App.3d at pp. 145−146 [no consent and no mere inducement
by fraud or deceit where defendant told mother that if she wanted her child
back, she would have to get in defendant’s car where the child was being
held].)
In sum, we conclude on the record before us that Jimenez has not
carried his “ ‘enormous burden’ ” of demonstrating insufficient evidence to
require reversal of his conviction on the aggravated kidnapping charge.
(People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.)
DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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