P. v. Jiminez CA4/2

Filed 5/29/13 P. v. Jiminez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055584
v. (Super.Ct.No. INF065544)
JUAN MANUEL JIMINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Steven G. Counelis,
Judge. Affirmed.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Sabrina Y. Lane-Erwin and
Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Juan Manuel Jiminez is serving 30 years in prison after pleading guilty
to charges stemming from sexually abusing his stepdaughter and niece over several years.
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Defendant contends the trial court erred when it accepted his guilty plea after he
commented during the plea colloquy “It is a lot of years. But there’s nothing I can do
about it anyway” without further questioning him to determine whether he was
voluntarily waiving his constitutional rights. As discussed below, we find this to be
merely an understandable comment about the situation in which defendant had placed
himself, and therefore find no error.
FACTS AND PROCEDURE
When defendant’s stepdaughter was about five years old, defendant began to enter
her room at night at least twice per week, sometimes every night, to touch her sexually.
This took place for several years. When the stepdaughter was about nine years old, this
behavior escalated to forcible rape, which continued until she was 11 years old.
Defendant exhibited similar behavior with his niece when she was about 13 years
old, although less often than with his stepdaughter because defendant did not live with his
niece. Both girls testified to this abuse in great detail during the preliminary hearing.
On December 15, 2009, the People filed an information charging defendant with
11 separate crimes relating to these two victims, and later amended the information to
add an additional count.
On December 16, 2011, defendant pled guilty to two counts of continuous sexual
conduct with a minor under age 14 (Pen. Code, § 288.5)1 and five counts of forcible
1 All further statutory references are to the Penal Code unless otherwise indicated.
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sexual penetration by force or fear (§ 289, subd. (a)(1)). On that date the trial court
sentenced defendant to the agreed-upon term of 30 years in prison.
At the plea hearing, the trial court asked defendant whether he had signed and
initialed the plea form, whether he reviewed the form carefully before signing and
initialing it, and whether he had an opportunity to discuss the form with his attorney
before signing and initialing it. Defendant replied, “Yes” to each question. Defendant
confirmed that he understood the terms of the plea agreement, that he would be pleading
guilty to seven charges and that he would be sentenced to 30 years in prison. He also
acknowledged that he had not been induced to plead guilty by any promise that was not
contained in the plea agreement, or by any threat. The court then asked defendant
whether he had any questions about the effect of the plea form or the rights he was giving
up by executing the form. Defendant replied: “It is a lot of years, but there’s nothing I
can do about it anyway.” The court again asked defendant if he had any questions about
the effect of the plea form or any of the rights he was giving up. Defendant replied,
“No.” The trial court found that defendant had “expressly, knowingly, understandingly,
and intelligently waived” his statutory and constitutional rights, and that his guilty plea
was entered “freely and voluntarily,” and with an “understanding of the nature of the
charges pending, as well as the consequences of the plea.”
This appeal followed.
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DISCUSSION
Defendant argues the trial court had a duty to inquire further of defendant to
determine whether defendant’s comments about there being “nothing I can do about it
anyway,” indicated that his plea was either involuntary or not intelligently made.
“[A] plea is valid if the record affirmatively shows that it is voluntary and
intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th
1132, 1175.) “[I]it was well established that a valid guilty plea presupposed a voluntary
and intelligent waiver of the defendant’s constitutional trial rights, which include the
privilege against self-incrimination, the right to trial by jury, and the right to confront
one’s accusers.” (Id. at p. 1175.) “‘ . . . [T]the record must affirmatively disclose that a
defendant who pleaded guilty entered his plea understandingly and voluntarily.’
[Citation.]” (Id. at p. 1177.) “ . . . The record must affirmatively demonstrate that the
plea was voluntary and intelligent under the totality of the circumstances.” (Id. at p.
1178.) “[E]xplicit admonitions and waivers still serve the purpose that originally led us
to require them: They are the only realistic means of assuring that the judge leaves a
record adequate for review.” (Id. at p. 1178-1179.)
Here, the record affirmatively demonstrates that defendant knowingly and
voluntarily agreed to plead guilty, and in doing so waive his rights to a jury trial, to
confront his accusers, and to not incriminate himself. First, defendant executed the
felony plea form, which set forth each of these rights, and in which he agreed that he
understood its terms, had discussed them with his attorney, and voluntarily waived them.
Second, defendant’s attorney signed the same form indicating that he was satisfied that
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defendant understood these rights, had an opportunity to discuss them with the attorney,
and understood the consequences of the plea. Third, as set forth above, at the plea
hearing the trial court judge engaged in an oral inquiry of defendant, through a Spanish
language interpreter, as to whether defendant was pleading guilty and waiving his
constitutional rights voluntarily and intelligently. Fourth, at the conclusion of this
inquiry, the court accepted defendant’s plea and found that it was “freely and voluntarily
made” and that defendant had “expressly, knowingly, understandingly, and intelligently”
waived his statutory and constitutional rights.
Despite the above, defendant argues that his comment “It is a lot of years, but
there’s nothing I can do about it anyway” negates each of these overlapping indicators
that his plea was voluntary. Defendant cites to the following three federal cases in an
attempt to persuade this court that the trial court had a duty to find out whether this
statement meant that defendant’s plea and waiver of rights was not fully voluntary.
However, the facts of these cases are so different from those of the current case that we
do not find them persuasive. In United States v. Siegel (11th Cir. 1996) 102 F.3d 477,
481, neither the trial court nor the prosecutor correctly informed the defendant about the
mandatory sentences for the crimes to which he was pleading guilty, and so the appellate
court held that defendant’s plea was not knowing and intelligent. This case is not helpful
to defendant other than for its general statement of the law. In re Ibarra (1983) 34 Cal.3d
277, 287-288, concerned the special duty of the trial court to conduct an inquiry where a
defendant’s guilty plea is a “package deal” in which all defendant’s must plead guilty to
receive the benefit of the agreement. Again, while this case contains general language
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regarding the duty of a court to inquire “into the totality of the circumstances” to
determine whether the plea is voluntary, it does not address the factual situation at hand.
In United States v. Parra-Ibanez (1st Cir.1991) 936 F.2d 588, 595-596, the
defendant had previously undergone psychiatric treatment, but had been determined
competent to plead guilty. At the plea hearing, defendant told the trial court that he was
taking three medications: Ativan, Halcion and Restoril. After asking defendant whether
Ativan “is a drug to control your nerves or something,” confirming with defense counsel
that defendant had been declared competent, and confirming with counsel for both sides
that they did not have any concerns about defendant’s competency, the court went
through the constitutional checklist with defendant and obtained his affirmative answer to
each question. The appellate court found that the trial court erred in failing to ask further
about the nature of the three medications and their effects on defendant’s “clear-
headedness.” (Id. at p. 596.) The appellate court based its conclusion on several well-
known federal cases requiring further inquiry “‘once the court has been informed that the
defendant has recently ingested drugs or other substances capable of impairing his ability
to make a knowing and intelligent waiver of his constitutional rights.’ [Citation.]” (Id. at
p. 595.) Again, while this case contains a good general statement of the law requiring
that a guilty plea and waiver of rights be voluntary and intelligent, its holding is specific
to cases in which the defendant is using prescription or illegal drugs.
We have considered the applicable law, the transcript of the plea colloquy, the
compelling testimony by both victims at the preliminary hearing and the fact that, if
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convicted, defendant faced an indeterminate term of life in prison.2 After doing so, we
agree with the People that, under all of the circumstances, defendant’s statement was a
lament about the bleakness of his situation and the choice he had to make (a determinate
term of 30 years versus a long indeterminate term) rather than a comment that his plea
and waiver were not voluntary.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
McKINSTER
J.
CODRINGTON
J.
2 Defendant was charged with having sexually abused two different victims,
which under section 667.61, subdivisions (b) and (e)(5), carries an indeterminate term of
15 years to life, and with aggravated sexual assault of a child under section 269, which
mandates consecutive, 15-years-to-life terms.
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