Filed 5/29/13 P. v. Jiminez CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E055584

v.                                                                       (Super.Ct.No. INF065544)

JUAN MANUEL JIMINEZ,                                                     OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Steven G. Counelis,

Judge. Affirmed.

         Mark Yanis, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Sabrina Y. Lane-Erwin and

Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.

         Defendant Juan Manuel Jiminez is serving 30 years in prison after pleading guilty

to charges stemming from sexually abusing his stepdaughter and niece over several years.

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Defendant contends the trial court erred when it accepted his guilty plea after he

commented during the plea colloquy “It is a lot of years. But there’s nothing I can do

about it anyway” without further questioning him to determine whether he was

voluntarily waiving his constitutional rights. As discussed below, we find this to be

merely an understandable comment about the situation in which defendant had placed

himself, and therefore find no error.

                                  FACTS AND PROCEDURE

       When defendant’s stepdaughter was about five years old, defendant began to enter

her room at night at least twice per week, sometimes every night, to touch her sexually.

This took place for several years. When the stepdaughter was about nine years old, this

behavior escalated to forcible rape, which continued until she was 11 years old.

       Defendant exhibited similar behavior with his niece when she was about 13 years

old, although less often than with his stepdaughter because defendant did not live with his

niece. Both girls testified to this abuse in great detail during the preliminary hearing.

       On December 15, 2009, the People filed an information charging defendant with

11 separate crimes relating to these two victims, and later amended the information to

add an additional count.

       On December 16, 2011, defendant pled guilty to two counts of continuous sexual

conduct with a minor under age 14 (Pen. Code, § 288.5)1 and five counts of forcible



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



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sexual penetration by force or fear (§ 289, subd. (a)(1)). On that date the trial court

sentenced defendant to the agreed-upon term of 30 years in prison.

       At the plea hearing, the trial court asked defendant whether he had signed and

initialed the plea form, whether he reviewed the form carefully before signing and

initialing it, and whether he had an opportunity to discuss the form with his attorney

before signing and initialing it. Defendant replied, “Yes” to each question. Defendant

confirmed that he understood the terms of the plea agreement, that he would be pleading

guilty to seven charges and that he would be sentenced to 30 years in prison. He also

acknowledged that he had not been induced to plead guilty by any promise that was not

contained in the plea agreement, or by any threat. The court then asked defendant

whether he had any questions about the effect of the plea form or the rights he was giving

up by executing the form. Defendant replied: “It is a lot of years, but there’s nothing I

can do about it anyway.” The court again asked defendant if he had any questions about

the effect of the plea form or any of the rights he was giving up. Defendant replied,

“No.” The trial court found that defendant had “expressly, knowingly, understandingly,

and intelligently waived” his statutory and constitutional rights, and that his guilty plea

was entered “freely and voluntarily,” and with an “understanding of the nature of the

charges pending, as well as the consequences of the plea.”

       This appeal followed.




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                                            DISCUSSION

       Defendant argues the trial court had a duty to inquire further of defendant to

determine whether defendant’s comments about there being “nothing I can do about it

anyway,” indicated that his plea was either involuntary or not intelligently made.

       “[A] plea is valid if the record affirmatively shows that it is voluntary and

intelligent under the totality of the circumstances.” (People v. Howard (1992) 1 Cal.4th

1132, 1175.) “[I]it was well established that a valid guilty plea presupposed a voluntary

and intelligent waiver of the defendant’s constitutional trial rights, which include the

privilege against self-incrimination, the right to trial by jury, and the right to confront

one’s accusers.” (Id. at p. 1175.) “‘ . . . [T]the record must affirmatively disclose that a

defendant who pleaded guilty entered his plea understandingly and voluntarily.’

[Citation.]” (Id. at p. 1177.) “ . . . The record must affirmatively demonstrate that the

plea was voluntary and intelligent under the totality of the circumstances.” (Id. at p.

1178.) “[E]xplicit admonitions and waivers still serve the purpose that originally led us

to require them: They are the only realistic means of assuring that the judge leaves a

record adequate for review.” (Id. at p. 1178-1179.)

       Here, the record affirmatively demonstrates that defendant knowingly and

voluntarily agreed to plead guilty, and in doing so waive his rights to a jury trial, to

confront his accusers, and to not incriminate himself. First, defendant executed the

felony plea form, which set forth each of these rights, and in which he agreed that he

understood its terms, had discussed them with his attorney, and voluntarily waived them.

Second, defendant’s attorney signed the same form indicating that he was satisfied that


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defendant understood these rights, had an opportunity to discuss them with the attorney,

and understood the consequences of the plea. Third, as set forth above, at the plea

hearing the trial court judge engaged in an oral inquiry of defendant, through a Spanish

language interpreter, as to whether defendant was pleading guilty and waiving his

constitutional rights voluntarily and intelligently. Fourth, at the conclusion of this

inquiry, the court accepted defendant’s plea and found that it was “freely and voluntarily

made” and that defendant had “expressly, knowingly, understandingly, and intelligently”

waived his statutory and constitutional rights.

       Despite the above, defendant argues that his comment “It is a lot of years, but

there’s nothing I can do about it anyway” negates each of these overlapping indicators

that his plea was voluntary. Defendant cites to the following three federal cases in an

attempt to persuade this court that the trial court had a duty to find out whether this

statement meant that defendant’s plea and waiver of rights was not fully voluntary.

However, the facts of these cases are so different from those of the current case that we

do not find them persuasive. In United States v. Siegel (11th Cir. 1996) 102 F.3d 477,

481, neither the trial court nor the prosecutor correctly informed the defendant about the

mandatory sentences for the crimes to which he was pleading guilty, and so the appellate

court held that defendant’s plea was not knowing and intelligent. This case is not helpful

to defendant other than for its general statement of the law. In re Ibarra (1983) 34 Cal.3d

277, 287-288, concerned the special duty of the trial court to conduct an inquiry where a

defendant’s guilty plea is a “package deal” in which all defendant’s must plead guilty to

receive the benefit of the agreement. Again, while this case contains general language


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regarding the duty of a court to inquire “into the totality of the circumstances” to

determine whether the plea is voluntary, it does not address the factual situation at hand.

       In United States v. Parra-Ibanez (1st Cir.1991) 936 F.2d 588, 595-596, the

defendant had previously undergone psychiatric treatment, but had been determined

competent to plead guilty. At the plea hearing, defendant told the trial court that he was

taking three medications: Ativan, Halcion and Restoril. After asking defendant whether

Ativan “is a drug to control your nerves or something,” confirming with defense counsel

that defendant had been declared competent, and confirming with counsel for both sides

that they did not have any concerns about defendant’s competency, the court went

through the constitutional checklist with defendant and obtained his affirmative answer to

each question. The appellate court found that the trial court erred in failing to ask further

about the nature of the three medications and their effects on defendant’s “clear-

headedness.” (Id. at p. 596.) The appellate court based its conclusion on several well-

known federal cases requiring further inquiry “‘once the court has been informed that the

defendant has recently ingested drugs or other substances capable of impairing his ability

to make a knowing and intelligent waiver of his constitutional rights.’ [Citation.]” (Id. at

p. 595.) Again, while this case contains a good general statement of the law requiring

that a guilty plea and waiver of rights be voluntary and intelligent, its holding is specific

to cases in which the defendant is using prescription or illegal drugs.

       We have considered the applicable law, the transcript of the plea colloquy, the

compelling testimony by both victims at the preliminary hearing and the fact that, if




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convicted, defendant faced an indeterminate term of life in prison.2 After doing so, we

agree with the People that, under all of the circumstances, defendant’s statement was a

lament about the bleakness of his situation and the choice he had to make (a determinate

term of 30 years versus a long indeterminate term) rather than a comment that his plea

and waiver were not voluntary.

                                         DISPOSITION

      The judgment is affirmed.

      NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                              RAMIREZ
                                                                                      P. J.


We concur:

McKINSTER
                          J.

CODRINGTON
                          J.




      2  Defendant was charged with having sexually abused two different victims,
which under section 667.61, subdivisions (b) and (e)(5), carries an indeterminate term of
15 years to life, and with aggravated sexual assault of a child under section 269, which
mandates consecutive, 15-years-to-life terms.


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