Opinion
D071435
12-29-2017
THE PEOPLE, Plaintiff and Respondent, v. JOHN EDWARD JIMENEZ, Defendant and Appellant.
Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD267560) APPEAL from a judgment of the Superior Court of San Diego County, Laura H. Parsky, Judge. Affirmed. Gary V. Crooks, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found John Edward Jimenez guilty of making a criminal threat (Pen. Code, § 422; count 1); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2); and battery (§ 242; count 3). After the jury returned its verdicts, Jimenez admitted having served one prior prison term (§ 667.5, subd. (b)), and having suffered two prior serious felony convictions (§ 667, subd. (a)(1)), and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, & 668). The trial court granted Jimenez's motion to dismiss one of his prior strike convictions and sentenced him to an aggregate term of 17 years 4 months in prison.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Jimenez claims that there is insufficient evidence in the record to support the jury's verdict finding him guilty of assault with force likely to cause great bodily injury. Jimenez also contends that the trial court erred in failing to instruct the jury that Jimenez was not guilty of the assault charge if he was lawfully acting in the defense of another during the incident giving rise to the charged offense. Finally, Jimenez maintains that there is insufficient evidence to support the jury's verdict finding him guilty of making a criminal threat. Jimenez argues that this is so because no reasonable jury could find that he specifically intended his statements to be taken as a threat, given the evidence of his voluntary intoxication at the time of the offense. We reject Jimenez's claims and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
In June 2016, E.C. lived in an apartment with his wife, her four children, and her nephew, Jimenez. Jimenez moved into the apartment approximately six months earlier.
We refer to the victims in this case by their initials. (See California Rules of Court, rule 8.90(b)(4).)
On the night of June 17, 2016, E.C. and his stepdaughter, M.P., were alone in the apartment. M.P. was asleep in her bedroom. At approximately 7:55 p.m., Jimenez arrived at the apartment, smelling of alcohol and appearing drunk.
Jimenez asked E.C. if he could talk to him. After E.C. responded affirmatively, Jimenez, without warning, punched E.C. in the face, near his eye. Jimenez began to ask E.C. why E.C. had had sex with M.P. Jimenez continued punching E.C., striking him approximately 20 times.
E.C. moved from the living room into the kitchen in an effort to get away from Jimenez. Jimenez pushed E.C. up against a wall and continued to ask E.C. why he had had sex with M.P. Jimenez grabbed a kitchen knife from a drawer and threatened to kill E.C. E.C. was frightened when Jimenez threatened him and feared that Jimenez would attack him with the knife. E.C. ran out of the apartment, closed the apartment door, and held the door shut while Jimenez continued yelling that he was going to kill E.C.
Jimenez then went into M.P.'s room, woke her, and told her that he needed to speak with her. M.P. got out of bed, went into the living room, and observed E.C. outside the apartment door. Jimenez screamed at M.P., demanding to know why she had let E.C. abuse her. Jimenez then slapped M.P. on the cheek. Jimenez began to choke M.P., while insisting that she tell him the truth. Jimenez stopped choking M.P. only after she told him that she would tell the truth, even though she did not know what Jimenez was talking about. After letting go of M.P.'s neck, Jimenez told E.C. that Jimenez had friends who would kill E.C.
M.P. and E.C. each testified that they had not had a sexual relationship with each other.
M.P. called 911. Police arrived and took Jimenez into custody. B. The defense
Jimenez testified on his own behalf. According to Jimenez, approximately a month prior to the incident, M.P. told him she was keeping a secret from her mother. Jimenez suspected that the secret was that M.P. was having a sexual relationship with E.C. On the day of the incident, Jimenez asked E.C. whether he was having sex with M.P. When E.C. responded by stating, "What made you think of that?" Jimenez punched him "no more than" six times.
In explaining why he suspected that E.C. was abusing M.P, Jimenez stated that he overheard a teenage daughter telling her mother about a boyfriend on the bus one day. Jimenez continued:
"So my mind—and this is stupid, but my mind goes somewhere else, and I analyze things too much, but to me, like, a behavior is like predominantly one little area. So if a daughter talks to her mom about boyfriends, then she's not hiding that she has a boyfriend or something else. That's something else. That's when it crossed my mind that maybe something was happening between [E.C.] and [M.P.], which is stupid because I have no evidence, no proof, nothing. I didn't see anything."
Jimenez stated that he was unable to punch E.C. very hard because sometime prior to the incident, he had "shattered" his thumb playing basketball. Jimenez also denied having grabbed a knife during the incident. However, Jimenez admitted that he screamed at M.P. and that he had slapped her one time. Jimenez also stated that he told E.C. that he would kill E.C. if E.C. were to "do anything" to Jimenez's cousins.
Jimenez explained that he had been drinking heavily on the day of the incident.
III.
DISCUSSION
A. There is sufficient evidence in the record to support the jury's verdict finding Jimenez guilty of assault with force likely to cause great bodily injury
Jimenez claims that there is insufficient evidence that he committed an assault with force likely to produce greatly bodily injury against E.C. Specifically, Jimenez argues that there was insufficient evidence that the force that he applied to E.C. was likely to cause great bodily injury.
1. Governing law
a. The law governing sufficiency claims
In determining the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319 (Jackson).) "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.)
b. Substantive law
Section 245, subdivision (a)(4) provides in relevant part, "Any person who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be punished . . . ."
"Great bodily injury is bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 (Armstrong).) " 'Likely means probable or . . . more probable than not.' " (People v. Russell (2005) 129 Cal.App.4th 776, 787.)
"One may commit an assault without making actual physical contact with the person of the victim; because the statute focuses on the use of a deadly weapon or instrument or, alternatively, on force likely to produce great bodily injury . . . ." (People v. Aguilar (1997) 16 Cal.4th 1023, 1028.) " 'The statute prohibits an assault by means of force likely to produce great bodily injury, not the use of force which does in fact produce such injury. While . . . the results of an assault are often highly probative of the amount of force used, they cannot be conclusive.' [Citation.] '[T]he question of whether or not the force used was such as to have been likely to produce great bodily injury, is one of fact for the determination of the jury based on all the evidence, including but not limited to the injury inflicted.' " (Armstrong, supra, 8 Cal.App.4th at pp. 1065-1066.)
"The use of hands or fists alone may be sufficient to support a conviction of assault by means of force likely to produce great bodily injury." (In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 (Nirran W.).) In Nirran W., the court rejected the argument that "as a matter of law, one blow to the face of the victim could not have been likely to cause great bodily injury." (Ibid.) The court relied in part on the fact that the assailant delivered a punch to the victim's face "without warning." (Id. at p. 1162.)
2. Application
E.C. testified that on the day of the incident, Jimenez asked E.C. whether he could speak with him, while the two were in the family residence. Immediately after E.C. responded affirmatively, Jimenez punched E.C. near his left eye. When asked at trial whether he had "any warning that [Jimenez] was going to hit [him]," E.C. responded, "No."
After the initial punch, E.C. covered his face. Jimenez then began to punch E.C. approximately 20 times. The punches landed on both of E.C.'s ears. As he was beating E.C., Jimenez was accusing E.C. of having had sex with M.P. Jimenez followed E.C. from the living room into the kitchen and, while continuing to hit E.C., pushed E.C. into a wall. The force of the push caused E.C.'s back to create a hole in the wall. Jimenez then grabbed a knife from a kitchen drawer and threatened to kill E.C. E.C. escaped the attack by running out of the apartment.
E.C. testified that he suffered "a bruise in [his] eye" as a result of Jimenez's attack. In addition, when asked whether he had been injured by a punch to the ear, E.C. responded, "It was swollen right here, and it hurts." The People introduced in evidence photographs of E.C.'s injuries as well as a photograph of the hole in the kitchen wall caused by E.C.'s body being pushed into the wall.
The trial took place in October 2016, approximately four months after the incident.
While this appeal was pending, we directed the trial court to send us the relevant exhibits, and we have reviewed the photographs that were admitted in evidence. (See Cal. Rules of Court, rule 8.320(e) ["Exhibits admitted in evidence, refused, or lodged are deemed part of the record, but may be transmitted to the reviewing court only as provided in rule 8.224."]; id., rule 8.224(d) ["At any time the reviewing court may direct the superior court or a party to send it an exhibit."].)
In assessing the significance of this evidence, a reasonable jury could find that the fact that Jimenez delivered the initial punch "without warning," increased the likelihood that the force applied was likely to produce great bodily injury. (Nirran W., supra, 207 Cal.App.3d 1162.) The jury could also reasonably find that Jimenez's infliction of numerous punches to E.C.'s head, "an obviously vulnerable area," (People v. Saez (2015) 237 Cal.App.4th 1177, 1189), increased the likelihood of great bodily injury. In addition, in determining the amount of force that Jimenez applied in assaulting E.C., the jury could reasonably consider both that Jimenez pushed E.C. into a wall with enough force to damage the wall, and evidence that Jimenez was enraged at the time he committed the attack. (See People v. McDaniel (2008) 159 Cal.App.4th 736, 748-749 ["Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which the force was applied."].) While the People properly acknowledge that "the injuries [E.C.] received did not necessarily amount to great bodily injury," the jury could reasonably find that the fact that Jimenez's blows inflicted some injury, supported a finding that the force applied was likely to have produced great bodily injury.
We conclude that People v. Duke (1985) 174 Cal.App.3d 296, 303, on which Jimenez relies, is distinguishable. In Duke, the Court of Appeal concluded that a defendant's act in grabbing a victim and placing her in a headlock "momentarily," could not support the jury's verdict finding the defendant guilty of assault with force likely to produce great bodily injury. (Ibid.) The attack in this case involved the use of far greater force and was much more prolonged than the assault at issue in Duke.
We acknowledge that there was evidence from which the jury could have found that the People had not established the charged offense (including the lack of evidence that E.C. in fact suffered great bodily injury). We also acknowledge, as Jimenez argues in his brief, that there are many cases in which evidence of greater force was offered to prove a charged assault with force likely to produce great bodily injury than was offered in this case. However, neither circumstance demonstrates that there is not substantial evidence to support the jury's verdict in this case. (See Jackson, supra, 443 U.S. at p. 319 [in performing sufficiency analysis must view "evidence in the light most favorable to the prosecution"; People v. Solis (2001) 90 Cal.App.4th 1002, 1010 [rejecting as "analytically incorrect" sufficiency argument premised on absence of evidence found in other cases].)
Accordingly, we conclude that there is sufficient evidence in the record to support the jury's verdict finding Jimenez guilty of assault with force likely to cause great bodily injury. B. The trial court did not err in failing to instruct the jury sua sponte on the defense of others with respect to the charge of assault with force likely to produce great bodily injury because there is no evidence in the record that would support giving the instruction
Jimenez contends that the trial court erred in failing to instruct the jury sua sponte on the defense of others with respect to the charge of assault with force likely to produce great bodily injury. We apply the de novo standard of review in determining whether the trial court had a duty to give a particular jury instruction sua sponte. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
In order for Jimenez's punching of E.C. to have constituted a lawful use of force in the defense of M.P., Jimenez must have reasonably believed that M.P. was in imminent danger of suffering bodily injury or being touched unlawfully; he must have reasonably believed that the immediate use of force was necessary to defend against that danger; and he must have used no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 3470.)
Jimenez acknowledges that CALCRIM No. 3470 properly outlines the elements of the defense of others.
Contrary to Jimenez's assertion that there was "substantial evidence" to support giving this instruction, there is no evidence of any of these required elements. Specifically, there is no evidence that Jimenez reasonably believed that E.C. was molesting M.P., much less that a molestation was imminent. There also is no evidence that Jimenez reasonably believed that his attack on E.C. was necessary to defend M.P. from such (nonexistent) danger. Finally, there is no evidence that punching E.C. approximately 20 times constituted the least amount of force reasonably necessary to defend against the (nonexistent) danger.
Jimenez contends that the instruction was warranted because there was evidence that: the door to the family residence was locked when Jimenez arrived at the apartment; M.P. had previously told him that she was keeping a hurtful secret from her mother; E.C. was alone in the residence with M.P.; E.C. immediately went to take a shower upon Jimenez's arrival, and E.C. responded to Jimenez's question as to whether E.C. was having sex with M.P. by stating, "What made you think of that?" None of these facts, taken alone or in combination, supports a reasonable belief that E.C. was about to molest M.P., that Jimenez reasonably believed that his attack on E.C. was necessary to defend against such molestation, or that Jimenez used no more force than necessary to defend against the danger.
Accordingly, we conclude that Jimenez's instructional claim is entirely without merit. C. There is sufficient evidence to support the jury's verdict finding Jimenez guilty of making a criminal threat, notwithstanding evidence of his voluntary intoxication
Jimenez contends that there is insufficient evidence to support the jury's verdict finding him guilty of making a criminal threat (§ 422). Specifically, he argues that there is insufficient evidence that he specifically intended that his statements to E.C. be taken as a threat because he was intoxicated at the time he made the threats. We apply the standard of review governing sufficiency claims outlined in part III.A.1.a, ante.
1. Governing law
a. Making a criminal threat
"In order to prove a violation of section 422, the prosecution must establish all of the following: (1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228, italics added.)
b. Voluntary intoxication and its relationship to a defendant's specific intent
Section 29.4 provides in relevant part:
"(a) No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his or her having been in that condition. Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act.
"(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." (Italics added.)
As suggested by section 29.4, subdivision (b), voluntary intoxication may constitute a defense to a specific intent crime—such as making criminal threats under section 422. "[W]hen our Legislature eliminated the defense of diminished capacity [citation], it precluded jury consideration of mental disease, defect, or disorder as evidence of a defendant's capacity to form a requisite criminal intent, but it did not preclude jury consideration of mental condition in deciding whether a defendant actually formed the requisite criminal intent." (People v. Williams (1997) 16 Cal.4th 635, 677.) Thus, "evidence of voluntary intoxication is relevant to the extent it bears upon the question whether the defendant actually had the requisite specific mental state required for commission of the crimes at issue." (People v. Horton (1995) 11 Cal.4th 1068, 1119.)
2. Application
Jimenez notes that there was considerable evidence in the record that he was intoxicated at the time of the incident. E.C. and M.P. both stated that Jimenez appeared intoxicated at the time of the incident, and E.C.'s wife and a police officer who saw Jimenez just after the incident also stated that Jimenez appeared to be intoxicated. Jimenez testified that he was "drunk." He reported that he had consumed five beers, two "Smirnoffs" and at least one "Four Loko" beverage, between approximately 3:30 p.m. and the time of incident (around 8:00 p.m.). However, Jimenez also testified that he usually drank more than he had on the evening in question, explaining that he sometimes drank as many as 18 beers. Jimenez also testified that he could clearly remember what happened on the night of the incident.
While this appeal was pending, Jimenez filed a motion for judicial notice, asking this court to take judicial notice of three documents purportedly relevant to Jimenez's trial testimony in which he "estimate[d] . . . the alcoholic content of the Four Loko beverage," as being 12 percent. The People opposed the motion on several grounds, including that the documents were not presented to the trial court.
We deny the motion in its entirety because the records were not considered by the jury in reaching its verdict. (See People v. Hardy (1992) 2 Cal.4th 86, 134 [" '[A]s a general rule the [appellate] court should not take . . . [judicial] notice if, upon examination of the entire record, it appears that the matter has not been presented to and considered by the trial court in the first instance.' "].) However, in light of the evidence discussed in the text, we would reject Jimenez's claim even if we were to grant his motion for judicial notice.
Most importantly, on cross-examination, the prosecutor asked Jimenez, "[D]id you intend to make [E.C.] really believe that you were going to kill him?" Jimenez responded:
"Um, to be honest, like, the way things—you know, like, no, out of the abundance of the heart, the mouth speaks. So, basically, in—I said it. At the moment, I meant it, but at this time or seconds later I was not going to do it." (Italics added.)
In light of this testimony, the jury clearly could have reasonably found that, notwithstanding his intoxication, Jimenez threatened to kill E.C. with the specific intent that his statement be taken as a threat. Accordingly, we conclude that there is sufficient evidence to support the jury's verdict finding Jimenez guilty of making a criminal threat, notwithstanding evidence of his voluntary intoxication.
IV.
DISPOSITION
The judgment is affirmed.
AARON, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.