People v. Jimenez CA4/1 ( 2022 )

Filed 12/1/22 P. v. Jimenez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079630
Plaintiff and Respondent,
v. (Super. Ct. No. CR117399)
AQUILES JIMENEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Jay Bloom, Judge. Affirmed.
Aurora E. Bewicke, 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,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General,
for Plaintiff and Respondent.
In 1991, Aquiles Jimenez pled no contest to aiding and abetting second-
degree murder (Pen. Code, § 187, subd. (a); count 2)1 as part of a plea bargain
under People v. West (1970) 3 Cal.3d 595 (West). The parties stipulated to
using the preliminary hearing transcript as the factual basis for the plea, and
the balance of charges and allegations were dismissed. The court sentenced
Jimenez to an indeterminate term of 15 years to life.
In 2019, Jimenez filed a petition to vacate his convictions and for
resentencing under amended section 1170.95 (now section 1172.6).2 After an
evidentiary hearing, the trial court denied Jimenez’s petition, finding that:
(1) he was ineligible for relief under section 1172.6, and (2) even if eligible,
the record evidence proved Jimenez’s guilt under a still-valid theory of
murder, beyond a reasonable doubt.
Jimenez contends on appeal that: (1) the trial court erred in finding
him ineligible for relief under section 1172.6 as amended by Senate Bill
No. 775 (2020–2021 Reg. Sess.), and (2) the People failed to prove beyond a
reasonable doubt that Jimenez acted with malice.
We conclude that regardless of whether Jimenez is eligible for relief
under the expanded criteria of section 1172.6, substantial evidence supports
the trial court’s finding that Jimenez is guilty beyond a reasonable doubt,
under current law, of directly aiding and abetting second-degree murder.
Accordingly, we affirm.
1 Further statutory references are to the Penal Code unless otherwise
stated.
2 Jimenez brought his petition under former section 1170.95, which was
amended effective January 1, 2022, and then renumbered as section 1172.6
without substantive change on June 30, 2022. (See Stats. 2022, ch. 58, § 10,
(Assem. Bill No. 200).) We refer to the subject statute by its current number
throughout this opinion.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Paul J.’s Killing
In August 1990, Cynthia Wilson told an acquaintance that she was
upset with the victim, Paul J., because of how he treated her when they were
dating. Wilson told the acquaintance that she wanted to obtain a gun to
shoot Paul J. to “put him out of his misery.” Around that time, Wilson began
dating Jimenez, and she told him that she was afraid of Paul J. and that he
had hurt her emotionally. Jimenez, who sold and used methamphetamine,
knew Paul J. was a drug dealer. Jimenez was also a gun collector, and at
Wilson’s request, he took her out to practice shooting with one of his guns.
On the evening of September 9, 1990, Paul J. asked the night clerk at
the Sweetwater Inn in National City if he could borrow his car. Paul J. also
asked to use a room at the hotel so he could speak with Wilson. The clerk,
who knew Paul J., agreed to lend him his car and said he could use a room
later. After Paul J. left the hotel, Wilson called the clerk to ask whether
Paul J. was staying there. The clerk confirmed that he was, and gave Wilson
Paul J.’s room number. After Paul J. returned, the clerk gave him room keys
and Paul J. went up to his room.
Around 4:00 a.m., Wilson asked Jimenez to drive her to the hotel to
meet with Paul J. According to Jimenez’s statements during a 2015 parole
hearing, Wilson had been using methamphetamine that night. Jimenez was
not using drugs at the time because he was on pain medication for a work-
related injury. When they got to Paul J.’s room, Paul J. offered Wilson
methamphetamine and went to the bathroom to prepare the drugs, where
Wilson and Paul J. began arguing. Jimenez was adjusting the radio when
Wilson pulled out a small pistol that Jimenez usually kept in his truck’s glove
compartment and shot Paul J. a few times. Jimenez said during his parole
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hearing that he did not realize Wilson had taken his gun until that moment,
and that she had hidden it under her jacket. He also denied knowing that
Wilson was going to shoot Paul J.
After Wilson first shot Paul J. and he fell to the floor, Jimenez pulled
the phone out of the wall socket to prevent Paul J. from calling anyone.
During his probation interview, Jimenez said he heard Paul J. ask, “Oh my
God, why did you shoot me?” Wilson then asked Jimenez to also shoot
Paul J., but when Jimenez refused, she shot Paul J. again herself. Jimenez
then took the gun from Wilson and they left the hotel in Jimenez’s truck.
Jimenez told a probation officer that he thought Paul J. was still alive
when they left the hotel room. Wilson called the hotel’s front desk 15
minutes after they left, asking to speak with Paul J. The clerk tried a few
times to call Paul J.’s room, but no one answered. Later that night, Jimenez
threw the gun over the Coronado bridge.
Around 6:20 a.m. the following morning, the clerk went up to Paul J.’s
room and found him dead. An autopsy determined that he died from two
gunshot wounds through the chest and back. During a subsequent search of
Jimenez’s residence, law enforcement officers found ammunition matching
the type found in Paul J.’s room.
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B. Jimenez’s Petition for Resentencing
In 1991, Jimenez pled no contest to aiding and abetting second-degree
murder (§ 187, subd. (a); count 2) as part of a plea bargain under West, supra,
3 Cal.3d 595. Jimenez filed a petition for resentencing in 2019 under
amended section 1172.6. After appointing counsel, finding that Jimenez had
established a prima facie case of entitlement to relief, and issuing an order to
show cause, the trial court held an evidentiary hearing to determine whether
Jimenez was entitled to relief.
During the hearing, the court admitted as part of the record of
conviction the preliminary hearing transcript, the change of plea form, the
change of plea hearing transcript, Jimenez’s statements from the probation
report, and his 2015 parole hearing transcript. The People did not seek to
admit Jimenez’s post-arrest statement and a statement by the individual who
sold Jimenez the murder weapon. The People did seek to admit Wilson’s
probation report and parole hearing transcript, which included Wilson’s
statements that Jimenez knew she intended to kill Paul J., that he supplied
her with the gun she used to shoot Paul J., that Jimenez offered to have
Paul J. killed, that Jimenez told her to bring the gun when they got to the
hotel, that Jimenez instructed her to shoot Paul J., and that Jimenez fixed
the gun after it jammed so that she could shoot Paul J. more than once. The
court excluded those documents and the statements therein as inadmissible
hearsay.
After the hearing, the trial court issued a written order denying
Jimenez’s petition, finding that he was ineligible for relief under section
1172.6 because he “was not charged in such a way that the prosecution could
proceed on a felony-murder or natural and possible consequences theory.”
Citing People v. Nguyen (2020) 53 Cal.App.5th 1154 (Nguyen), the court
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found no evidence that a theory of murder invalidated by section 1172.6 “was
lurking somewhere in the case.”
Alternatively, the court found that the record evidence proved
Jimenez’s guilt as an aider and abettor beyond a reasonable doubt. The court
noted that Jimenez had weapons and ammunition at his residence that
matched the murder weapon, he drove Wilson to the hotel, he “did nothing to
stop the first or subsequent shots,” and he admitted to pulling the phone out
of the wall while Paul J. was still alive. The court found that Jimenez
supplied Wilson with a gun, he went shooting with her, and he knew that
Wilson “hated the victim.” The court further noted that Jimenez did not
attempt to render aid to the victim or report the crime to the police, and he
disposed of the murder weapon.
The court concluded that it must deny Jimenez’s petition “[g]iven the
lack of evidence felony-murder or natural probable consequences were an
issue here,” and alternatively, because it found that the People met their
burden of establishing, beyond a reasonable doubt, that Jimenez aided and
abetted in Paul J.’s murder.
Jimenez timely appealed the order.
DISCUSSION
Jimenez first contends that the trial court erred in finding him
ineligible for relief under section 1172.6 as amended by Senate Bill No. 775
(2020–2021 Reg. Sess.), because in doing so the court relied on an outdated
interpretation of section 1172.6. After the court denied Jimenez’s petition,
Senate Bill No. 775 expanded the scope of section 1172.6 to include cases
where a defendant was convicted of murder under “any theory under which
malice is imputed to a person based solely on that person’s participation in a
crime,” not just under a felony murder or natural and probable consequences
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theory. (Stats. 2021, ch. 551, § 2.) Jimenez contends that the court erred in
following Nguyen, supra, 53 Cal.App.5th at pages 1166–1168, which held that
a petitioner who pled guilty to second degree murder was ineligible for relief
as a matter of law because the “transcripts from the preliminary and plea
hearings demonstrate[d] [he] was convicted of second degree murder as a
direct aider and abettor,” as that “was the only theory put forth by the
prosecutor[.]” In following Nguyen, the trial court rejected the contrary
holding of People v. Rivera (2021) 62 Cal.App.5th 217 (Rivera), which held
that the lack of any “preplea record of an underlying offense that could
support liability for felony murder or murder under the natural and probable
consequences doctrine[]” is not a bar to section 1172.6 relief. (Rivera, at
p. 238.)
In addition to challenging the trial court’s ruling on his eligibility for
relief, Jimenez argues there was insufficient evidence to support its
alternative finding that he acted with implied malice and was guilty of
second degree murder under current law. Specifically, he asserts the
admissible evidence did not show that he knew what Wilson planned to do,
that he encouraged Wilson to shoot Paul J., that he acted with reckless
indifference in failing to assist Paul J., or that he could have restrained
Wilson.
We conclude that regardless of whether Jimenez is eligible for relief
under the expanded criteria of section 1172.6, substantial evidence supports
the trial court’s alternative finding that Jimenez is guilty beyond a
reasonable doubt of directly aiding and abetting second-degree murder under
current law. Accordingly, we need not resolve the conflict between Nguyen
and Rivera regarding eligibility for relief.
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We review the trial court’s factual findings for substantial evidence.
(People v. Clements (2022) 75 Cal.App.5th 276, 298 (Clements).) “Our job on
review is different from the trial judge’s job in deciding the petition. While
the trial judge must review all the relevant evidence, evaluate and resolve
contradictions, and make determinations as to credibility, all under the
reasonable doubt standard, our job is to determine whether there is any
substantial evidence, contradicted or uncontradicted, to support a rational
fact finder’s findings beyond a reasonable doubt.” (Ibid.) We will not reverse
unless there is no hypothesis upon which sufficient substantial evidence
exists to support the trial court’s decision. (People v. Bolin (1998) 18 Cal.4th
297, 331.) We must “presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.” (People v.
Jones (1990) 51 Cal.3d 294, 314.) “The same standard applies when the
conviction rests primarily on circumstantial evidence.” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court must accept logical
inferences that the [trier of fact] might have drawn from the circumstantial
evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
Regarding Jimenez’s crime of conviction, “second degree murder . . . is
‘the unlawful killing of a human being with malice aforethought but without
the additional elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder.’ [Citation.] . . .
‘Malice is implied when the killing is proximately caused by “ ‘an act, the
natural consequences of which are dangerous to life, which act was
deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life.’ ” [Citation.]
In short, implied malice requires a defendant’s awareness of engaging in
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conduct that endangers the life of another. . . .’ ” (People v. Cravens (2012) 53
Cal.4th 500, 507.)
Viewed in the light most favorable to the trial court’s ruling, the
totality of the evidence is sufficient to support the trial court’s finding that
Jimenez is guilty of second degree murder under current law. The month
before the shooting, Wilson told an acquaintance that she wanted to shoot
Paul J. because of how he had treated her when they were dating. Around
the same time, Wilson also began dating Jimenez and told him she was afraid
of Paul J. and that he had hurt her emotionally. At Wilson’s request,
Jimenez took her practice shooting with one of his guns, then on the night of
the shooting, he drove Wilson to the hotel with a loaded gun in his truck to
meet Paul J. in the middle of the night, knowing that Wilson had been using
drugs. The trial court could reasonably infer from this evidence that when
Jimenez drove Wilson to the hotel, he knew Wilson intended to shoot the
victim and supplied the gun she used.3
This inference is further supported by Jimenez’s conduct during and
immediately after the shooting. According to what Jimenez told a probation
officer, there was a break in the shooting when Paul J. was still alive and
Wilson asked Jimenez to shoot him, during which Jimenez could have
intervened and prevented Wilson from firing additional shots. But instead,
after Wilson first shot the victim, Jimenez pulled the phone out of the wall
3 Jimenez argues in his opening brief that the trial court erred to the
extent it relied on Wilson’s hearsay statements in Jimenez’s probation report,
particularly her statement that Jimenez supplied her with a gun. However,
the People concede, and the record shows, that the court excluded Wilson’s
statements as inadmissible hearsay and only admitted Jimenez’s own
statements from his probation report. Even without this excluded evidence,
the record supports a reasonable inference that Jimenez supplied Wilson
with the gun she used.
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socket to prevent Paul J. from calling anyone for help. After the shooting
ended, Jimenez took his gun from Wilson, fled the scene with her, and
disposed of the murder weapon without alerting any authorities. These facts
all support the court’s finding that Jimenez knowingly aided and abetted an
implied malice murder. (See People v. Glukhoy (2022) 77 Cal.App.5th 576,
599 [“It is well-settled that the presence at the scene of the crime and failure
to prevent it, companionship and conduct before and after the offense,
including flight, are relevant to determining whether a defendant aided and
abetted in the commission of the crime.”].)
Jimenez cites People v. Ramirez (2021) 71 Cal.App.5th 970 (Ramirez),
in which the Court of Appeal reversed the denial of a defendant’s section
1172.6 petition as to his first-degree felony murder conviction based on his
participation in an attempted carjacking. Jimenez argues that his situation
is comparable to the defendant in that case because Jimenez did not
appreciate how badly Paul J. was wounded. But unlike in Ramirez and
similar cases, Jimenez heard and saw Wilson shoot Paul J. multiple times,
and he heard the victim say that he had been shot. (Cf. Ramirez, at p. 989
[“There is no evidence [defendant] had an opportunity to help [the victim] . . .
or that [defendant] knew [the victim] had been wounded by the gunfire.”]; In
re Bennett (2018) 26 Cal.App.5th 1002, 1025–1026 [insufficient evidence
defendant acted with reckless indifference to human life because “[a]t the
time of the shooting, he was across the street and he did not see or know if
anyone was shot or hurt.”].) It was reasonable for the trial court to infer from
the evidence that Jimenez, who was not under the influence of illicit drugs at
the time, appreciated the seriousness of Paul J.’s injuries when he pulled the
phone from the wall, declined to take his gun from Wilson in the middle of
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the shooting even though he had a chance to do so while Paul J. was still
alive, and then fled the scene with Wilson and disposed of the gun.
Jimenez also argues that like the defendant in Ramirez, the evidence
does not show that he was close enough to restrain Wilson. (See Ramirez,
supra, 71 Cal.App.5th at p. 989 [noting [defendant] was “not ‘close enough to
exercise a restraining effect on the crime’ ” because he was on the other side
of the vehicle when shooting began].) We disagree. Jimenez was in the same
hotel room, and he could at least have taken the gun from Wilson when she
paused to ask him to shoot the victim. By Jimenez’s own admission to the
probation officer, Wilson was essentially offering to hand the gun to him
before the shooting was over while the victim was still alive. Unlike in
Ramirez, where the defendant had “no realistic opportunity to intervene[,]”
Jimenez did have a clear opportunity to prevent further injury to Paul J.
when he was still alive. (See Ibid.)
Jimenez further contends that the admissible evidence does not show
he specifically encouraged Wilson to shoot Paul J., or that he knew Wilson
had a propensity for violence. Jimenez also claims that Wilson took his gun
without his knowledge, and that his youth at the time made it difficult to
fully appreciate the gravity of the situation. But even assuming that the trial
court could have drawn different inferences, our task is not to reweigh the
evidence. (See Clements, supra, 75 Cal.App.5th at p. 298; People v.
Stanley (1995) 10 Cal.4th 764, 793 [“ ‘If the circumstances reasonably justify
the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.’ ”].) Viewing the evidence and
drawing all reasonable inferences in the light most favorable to the court’s
order, as we must, there is substantial evidence to support its ruling.
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Accordingly, we find no reversible error in the trial court’s decision to
deny Jimenez’s petition for resentencing on the basis that he is guilty beyond
a reasonable doubt of aiding and abetting second-degree murder under
current law. For this reason, we need not, and do not, decide the threshold
issue of Jimenez’s eligibility for relief under the expanded criteria of section
1172.6.
DISPOSITION
The order denying Jimenez’s section 1172.6 petition for resentencing is
affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
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