People v. Jimenez CA1/5

Filed 11/29/23 P. v. Jimenez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A165743 v. OMAR JIMENEZ, (Alameda County Super. Ct. No. 19CR016234B) Defendant and Appellant.

In May 2022, defendant and appellant Omar Jimenez (appellant) was convicted of first degree residential robbery (Pen. Code,1 § 211) with findings that he personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The evidence at trial showed that, in the early morning hours on October 19, 2019, appellant and an accomplice broke into the hearing- impaired victim’s apartment in Oakland, armed with firearms. They entered the victim’s bedroom and beat the victim in the head and body with their fists and the butts of their guns.2 Among other things, the victim suffered

1 All undesignated statutory references are to the Penal Code.

2 Appellant points out that the victim testified at trial that he was

struck with fists, but he testified at the preliminary hearing that he was struck with fists and the butts of the assailants’ guns. Appellant does not

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fractures to his nasal bones and septum, and injuries to his teeth. Text messages on the accomplice’s cell phone indicated that appellant and the accomplice had followed the victim home on a prior occasion. The trial court sentenced appellant to 17 years in prison. The sentence was comprised of the four-year midterm sentence for the robbery, a consecutive 10-year firearm enhancement pursuant to section 12022.53, subdivision (b), and a consecutive three-year great bodily injury enhancement pursuant to section 12022.7, subdivision (a).3 Appellant contends the trial court abused its discretion in failing to dismiss or reduce the firearm enhancement. We affirm. Effective January 1, 2022, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (SB 81), which “amended section 1385 to provide guidance regarding the exercise of discretion in dismissing sentencing enhancements.” (People v. Anderson (2023) 88 Cal.App.5th 233, 238, review granted Apr. 19, 2023, S278786 (Anderson).) The legislation added subdivision (c)(1), which provides, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is