People v. Jimenez

Filed 4/19/16 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Lassen) ----

THE PEOPLE, C079201

Plaintiff and Respondent, (Super. Ct. No. CR032298)

v.

DARIO JIMENEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Lassen County, Michele Verderosa, Judge. Affirmed.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Keith P. Sager, Deputies Attorney General, for Plaintiff and Respondent.

“What people say behind your back is your standing in the community in which you live.”1 On the other hand, what people do not say about you may also shed light on your reputation in the community and, in turn, your character. That is the principle

1 Howe, Country Town Sayings (1911) page 20.

1

behind an optional part of CALCRIM No. 105 -- the standard instruction on witness credibility -- which informs the jury that “[i]f the evidence establishes that a witness’s character for truthfulness has not been discussed among the people who know him or her, you may conclude from the lack of discussion that the witness’s character for truthfulness is good.”2 (CALCRIM No. 105.) Here, a jury found defendant Dario Jimenez guilty of felony sexual penetration of an unconscious person and misdemeanor sexual battery. On appeal, defendant contends the trial court committed prejudicial error in giving the optional instruction because it was legally erroneous, lacked evidentiary support, and created a “ ‘permissive inference’ ” and “ ‘false impression’ ” that the victim’s character for truthfulness was good. Disagreeing, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On the night of April 3, 2014, the victim, Jane Doe, was at a friend’s house drinking alcohol and smoking marijuana and methamphetamine. She had been “high” on methamphetamine for the past three days. After a couple of hours, Jane Doe left her friend’s house and walked to defendant’s apartment. Defendant was Jane Doe’s uncle. When Jane Doe arrived at defendant’s apartment, she greeted him, ate some food, called a friend, and fell asleep on the couch. She next remembered waking up in a dark bedroom on defendant’s bed, on her side, with defendant behind her. She felt his hand under her shirt and bra, touching her bare breast. Her pants were down below her knees and she felt something inside her vagina. When Jane Doe moved away, she heard defendant say, “It was okay.” She pushed defendant, screamed, ran outside, and went downstairs and knocked on the door of the apartment below. Kasey Hoffman, the father of Jane Doe’s niece, was staying there. When Hoffman opened the door, Jane Doe was