Opinion
F082249
11-15-2021
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO RAUL JIMENEZ, Defendant and Appellant.
Thomas R. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F20906030. Jonathan B. Conklin, Judge.
Thomas R. O'Brien, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. 1
OPINION
THE COURT[*]
STATEMENT OF APPEALABILITY
The judgment from which appellant Guillermo Raul Jimenez appeals is final (Cal. Rules of Court, rule 8.204, subd. (a)(2)(b)), and is appealable pursuant to Penal Codesection 1237, subdivision (a).
All statutory references are to the Penal Code unless otherwise stated.
STATEMENT OF THE CASE
A September 25, 2020, information filed by the Fresno County District Attorney charged Jimenez with the following: felony assault with a deadly weapon (§ 245, subd. (a)(1); count 1); misdemeanor exhibiting a deadly weapon (§ 417, subd. (a)(1); count 2); and misdemeanor obstructing an officer (§ 148, subd. (a)(1); count 3).
On December 2, 2020, the court heard Jimenez's Marsden motion requesting new counsel be appointed, and such request was denied after hearing. The People filed a trial brief and motions in limine, and Jimenez filed motions in limine.
People v. Marsden (1970) 2 Cal.3d 118.
The reporter's transcript indicates that the prosecutor offered to amend count 1 from a section 245, subdivision (a)(1), a strike, to a section 245, subdivision (a)(4), a misdemeanor. Judge Conklin indicated a sentence of less than one year in custody, to be determined at time of sentencing. Jimenez understood, and did not accept the offer, which was withdrawn when the motions in limine were heard.
On December 3, 2020, the court began jury selection and a panel of 12 jurors and two alternates were selected and sworn as jurors. The People withdrew their offer to Jimenez and the matter was continued to the next day for continued trial.
On December 7, 2020, the jury found Jimenez guilty on each count as charged. The matter was continued for sentencing, and a probation report was ordered.
At the sentencing hearing on January 6, 2021, the court denied Jimenez probation, and sentenced him to the mitigated term of two years state prison on count 1. The court awarded him 122 days of actual custody credit and 122 days conduct credit for a total of 2 244 days. The court ordered that the one-year sentences on counts 2 and 3 run concurrently to count 1.
On January 11, 2021, Jimenez filed a timely notice of appeal of the conviction.
STATEMENT OF FACTS
On December 3, 2020, the testimony in the jury trial of this case commenced.
The People's first witness, I.M., testified that he resided in Orange Cove. At approximately 4:40 a.m. on September 7, 2020, he was awakened by his two roommates who said there was someone intruding on the residential property. I.M. went outside with his slingshot, looked around the front door and saw no one. He heard yelling so he walked toward the back of the lot, which has a gate. He saw a person. In court, I.M. identified Jimenez as the person he had seen on his property.
I.M. stated that Jimenez was not invited on the property or authorized to be there. When he asked Jimenez to leave, Jimenez began cursing and throwing rocks at him. I.M.'s sister, father and roommates joined him, and they all yelled at Jimenez to leave. Jimenez then began walking toward I.M. and his father in an aggressive manner, producing a bladed ax when he was about six feet away. I.M. identified the ax as the weapon wielded by Jimenez. (Exhibit no. 8.) Jimenez swung the ax at I.M., passing less than a foot from I.M.'s face. I.M.'s father swung a bat at Jimenez; nevertheless, Jimenez swung the ax a second time, this time passing within six inches of I.M.'s face.
I.M. then shot a marble at Jimenez with his slingshot, who appeared to "wake up," then turned and fled. I.M. followed Jimenez and saw him running in a nearby field. I.M. stated he was scared when Jimenez swung the ax because Jimenez was clearly attempting to hit him.
On cross-examination, I.M. testified that Jimenez had not told him he was there to meet someone. Jimenez had come to I.M.'s door on a previous occasion asking for someone. 3
The People called Orange Cove Police Officer Rolando Urrea. Officer Urrea testified that at 10:20 a.m. on September 7, 2020, he saw a subject walk out of an alleyway who he recognized as an individual he had seen in a photo lineup at a pre-shift briefing. That individual was wanted for an assault with a deadly weapon. Officer Urrea identified the person as Jimenez. As Officer Urrea exited his vehicle, he yelled to Jimenez that he was under arrest. Jimenez went back into the alley and started running. Officer Urrea could see an 18-inch-long ax in his hand. He ordered Jimenez to put down the ax several times, but Jimenez refused. Jimenez then threw the ax into a yard at a nearby residence where it was later recovered. After some resistance, Officer Urrea handcuffed him. Officer Urrea also identified photographs of the ax identified earlier as the weapon Jimenez used in the assault. (Exhibit nos. 4-6.) The People then rested their case in chief.
Jimenez then called Orange Cove Police Officer Marcus Aguilar, who had interviewed I.M. at the scene. Officer Aguilar did not recall I.M. telling him about the actions of others during the altercation but stated I.M. had told him that Jimenez had asked for someone named Jose, and that I.M. said he told Jimenez that no one by that name was there.
On cross-examination by the People, Officer Aguilar stated he did not ask I.M. whether others were involved in the incident. The defense then rested.
APPELLATE COURT REVIEW
Jimenez's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Jimenez was advised he could file his own brief with this court. By letter on April 14, 2021, we invited Jimenez to submit additional briefing. 4
On April 1, 2021, Jimenez had submitted a five-page "Supplemental Brief," which the court received on April 9, 2021. In response to our April 14, 2021, letter, Jimenez requested we consider his April 1, 2021, supplemental brief his response to our invitation to submit additional briefing. We have read and considered his supplemental brief.
Having undertaken an examination of the entire record, we find no evidence of ineffective assistance of counsel or any other arguable error that would result in a disposition more favorable to Jimenez.
DISPOSITION
The judgment is affirmed. 5
[*] Before Poochigian, Acting P. J., Snauffer, J. and De Santos, J.