People v. Jimenez CA5

Filed 4/7/15 P. v. Jimenez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE OF THE STATE OF CALIFORNIA, F068241

Plaintiff and Respondent, (Super. Ct. No. CRM019815)

v. OPINION RAFAEL JIMENEZ,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Merced County. Marc Garcia, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Gerald A. Engler, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Kane, Acting P.J., Poochigian, J. and Smith, J.

Appellant Rafael Jimenez pled no contest to committing a lewd act on a child at least 10 years younger (count 1/Pen. Code, § 288, subd. (c)(1))1 and two counts of lewd and lascivious conduct with a child under the age of 14 (counts 2 & 10/§ 288, subd. (a)). On appeal, Jimenez contends: (1) the protective order issued by the court must be stricken; and (2) the order requiring him to undergo Acquired Immune Deficiency Syndrome (AIDS) testing is not supported by substantial evidence. We will find merit to Jimenez’s first contention and strike the protective order. In all other respects, we will affirm. FACTS Jimenez lived in Livingston and is the uncle of S.M., R.M., and J.R. In 2005, at age 14, S.M. went to live with her grandparents in Livingston. When S.M. was 15 years old she sometimes helped Jimenez at his office. On some occasions, Jimenez would try to kiss her on the mouth and hug her, which made her feel uncomfortable. Sometimes he succeeded in kissing her and he would put his lips against hers and push his tongue in her mouth. A few times Jimenez tried to reach under her shirt but she pushed him away. Other times, he would touch her chest over her clothes. Jimenez also would touch S.M.’s buttocks over her clothes. On two occasions, he put his hand under her skirt and moved it up her legs. Jimenez bought S.M. a cell phone and paid her phone bill because she helped him at the office. The day he bought the phone, he took her to his house on the pretext that he needed to pick up something. While at the house, S.M. went into his bedroom at Jimenez’s direction. Jimenez then attempted to put S.M. on the bed. He also kissed her and placed his tongue in her mouth. S.M. resisted and after a few minutes he stopped and they left the house.