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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JUAN MANUEL JIMINEZ,
Defendant
and Appellant.
E055584
(Super.Ct.No.
INF065544)
OPINION
APPEAL
from the Superior Court
of
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. 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.
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)
name="_ftnref1" title="">[1] and five counts of forcible 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.â€
This appeal
followed.
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,â€
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.†(
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.]†(
affirmatively demonstrate that the plea was voluntary and intelligent under the
totality of the circumstances.†(
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 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 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
Cir.1991) 936 F.2d 588, 595-596, the defendant had previously undergone
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.†(
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.]†(
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
convicted, defendant faced an indeterminate term of life in prison.
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.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [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.
