People v. Jiminez CA1/3

Filed 1/19/21 P. v. Jiminez CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A159804 v. ROBERT ANDREW JIMINEZ, (Contra Costa County Super. Ct. No. 50606632) Defendant and Appellant.

Defendant Robert Andrew Jiminez appeals from an order denying his petition to recall and vacate his conviction pursuant to Penal Code section 1170.95.1 He contends the trial court erred in determining he did not qualify for resentencing under section 1170.95. We affirm the order. FACTUAL AND PROCEDURAL BACKGROUND In 2006, the People charged defendant and co-defendant Joseph Torres by information with the 2005 murder of Diego Perasa (§ 187), and one count of shooting at an inhabited dwelling (§ 246). As to both counts, the People further alleged that defendant personally used, and intentionally and personally discharged a firearm causing Perasa’s death (§ 12022.53,

1 All further statutory references to the Penal Code unless otherwise stated.

1

subds. (b)–(d)), and that he committed the offenses with the specific intent to benefit, promote, further, or assist the unlawful conduct of a criminal street gang (§ 186.22).2 Six days into his jury trial, defendant pled no contest to one count of voluntary manslaughter (§ 192, subd. (a)), which was added to the information. As to this count, he agreed the upper term of 11 years could be imposed. He also pled no contest to an enhancement for personal use of a firearm (§ 12022.5, subd. (a)) and a gang enhancement (§ 186.22, subd. (b)(1)). In his plea form, he indicated that he understood the court could impose a maximum sentence of 31 years. In 2007, the court sentenced him to a total determinate term of 25 years in prison: 11 years for the voluntary manslaughter count, 4 years for the firearm use enhancement, and 10 years for the gang enhancement. In May 2019, defendant filed a form petition for resentencing pursuant to section 1170.95. In his form petition, defendant checked boxes indicating that: a charging document was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; he was charged with first or second degree murder and accepted a plea bargain for manslaughter in lieu of going to trial because he believed he could have been convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine; and he could not now be convicted of first or second degree murder because of recent changes made to sections 188 and 189.