People v. Jimenez CA6

Filed 9/26/23 P. v. Jimenez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H047776 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC272706)

v.

ROBERT CHRISTOPHER JIMENEZ,

Defendant and Appellant.

MEMORANDUM OPINION1

Robert Christopher Jimenez appealed from the trial court’s denial of his petition for resentencing under Penal Code former section 1170.95.2 We dismissed the appeal after appointed counsel determined there were no arguable issues and filed a brief under People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). The California Supreme Court then granted review and transferred the matter back to this court with directions to vacate our prior order dismissing the appeal and reconsider whether to exercise our discretion to conduct an independent review of the record or provide any other relief in light of People

1 We resolve this case by memorandum opinion under California Standards of Judicial Administration, section 8.1. (See also People v. Garcia (2002) 97 Cal.App.4th 847, 853–855.) 2 Subsequent undesignated statutory references are to the Penal Code. The Legislature renumbered former section 1170.95 to section 1172.6 without substantive changes. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2.) We refer to former section 1170.95 as section 1172.6 for the remainder of this opinion.

v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Accordingly, we have exercised our discretion to conduct an independent review of the record, and for the reasons below, we will affirm the order denying resentencing. The facts of the offense are set forth in our unpublished opinion on appeal filed in 2005.3 Jimenez’s family was watching a football game in a living room at home, and everyone left the room at halftime except for Jimenez and his mother’s husband, Sal Munoz. A family member in another part of the house heard two sounds like firecrackers and went to the living room where he saw Jimenez standing with his arm extended and a gun in his hand pointed at Munoz. Munoz later died of two gunshot wounds to his head and neck. After a bench trial, the trial court convicted Jimenez of second degree murder and possession of a firearm by a felon, and the court found true allegations that he personally used a firearm and had various prior convictions. (§§ 187, 667, subds. (a)–(i), 667.5, subd. (b), 12021, subd. (a)(1), 12022.53, subd. (d).) The trial court found Jimenez committed the murder with express malice based on evidence that the unarmed victim was killed with two gunshots to the head fired from close range. The trial court imposed an aggregate term of 70 years to life consecutive to a five-year term in state prison. On direct appeal, we stayed the sentence for the firearm count and affirmed the judgment as modified. In April 2019, Jimenez filed a pro se petition for resentencing under section 1172.6. Jimenez checked boxes on the petition form indicating he had been convicted “pursuant to the felony murder rule or the natural and probable consequences doctrine,” and that he could not now be convicted of second degree murder under sections 187 and 189 as revised effective January 1, 2019. The prosecution opposed the petition in a written filing that attached relevant excerpts from the reporter’s transcripts of the bench