Filed 4/24/15 P. v. Jaimes CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F068161
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 11CM7119)
                   v.

JUAN JAIMES,                                                                             OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Kings County. Robert S.
Burns, Judge.
         John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John
G. McLean, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Franson, J. and Peña, J.
                                    INTRODUCTION
       On February 5, 2013, a second amended information was filed against
codefendants Julio Perez, Ramon Reyes, and Juan Jaimes.1 The defendants were charged
with attempting to deter three different correctional officers. Three counts of attempting
to deter an executive officer were alleged as to each officer. (Pen. Code, § 69, subd. (a);
counts 1 [Officer Rocha], 2 [Officer Ramirez], & 3 [Officer Garcia].)2 The information
alleged one count of battery of a correctional officer (§ 4501.5, count 4 [Officer
Ramirez]). The information alleged that Jaimes had two prior serious felony convictions
within the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-
(d)). The jury acquitted all three defendants of count 4, found them guilty of counts 1
and 2, and found them guilty of the lesser included offense of misdemeanor resisting
arrest (§ 148, subd. (a)(1)) in count 3. The jury found the strike allegations against
Jaimes to be true.
       At the sentencing hearing, on May 22, 2013, the trial court took the matter of
Jaimes’s request to strike one of the prior serious felony allegations, pursuant to People v.
Superior Court (Romero) (1996) 13 Cal.4th 497, under submission and sentencing was
continued.
       On August 21, 2013, the trial court denied Jaimes’s request to strike one of the
prior serious felony convictions, rejecting Jaimes’s argument that because both prior
convictions were based on the same criminal act and involved a single victim, both
counts could not be used as separate strike allegations. Instead of having a single prior
serious felony conviction, the trial court found Jaimes had two prior serious felony
convictions.



1      Perez and Reyes have filed a separate appeal in case No. F067515.
2      Undesignated statutory references are to the Penal Code.


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       Jaimes was sentenced to a term of 25 years to life on count 1 and to a concurrent
term of 25 years to life on count 2. Both sentences were ordered to be served consecutive
to the term he was already serving. On appeal, Jaimes contends the trial court erred in
sentencing him based on two prior strike allegations because they were part of the same
course of conduct and involved a single victim. In People v. Vargas (2014) 59 Cal.4th
635, 640-649 (Vargas), the California Supreme Court recently held that a trial court erred
in failing to strike one of two strikes that were based on the same criminal act and
involved a single victim. In accordance with Vargas, we reverse appellant’s sentence and
remand for a new sentencing hearing.
                                          FACTS
Current Offense
       During the evening of December 23, 2009, Corcoran State Prison Correctional
Officers Anthony Rocha and Michael Ramirez were working as floor officers conducting
cell searches. The officers searched the cell of defendants Jaimes and Perez, cell 113,
and the defendants proceeded to the day room. When the officers reached the cell of
inmate Paraza, cell 104, they had the cell unlocked. Paraza was inside the cell. The
officers told Paraza that one of them was going to first conduct a patdown search of him.
       Paraza, who was now just outside of his cell, said, “No.”3 Paraza started to walk
back into his cell, but Officer Ramirez was standing in the doorway. Because the officers
were present to conduct a search of the cell, Officer Ramirez put his hand out to block
Paraza. Paraza grabbed Officer Ramirez’s jumpsuit, at the chest, with both hands.
Officer Rocha grabbed Paraza’s left hand, or arm, and held Paraza by the wrist. When
Officer Ramirez began using pepper spray on Paraza, Paraza punched Officer Rocha in




3      Officer Rocha thought Paraza said, “No, I am good with that.”


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the left eye.4 Paraza then started attacking Officer Ramirez, swinging wildly with both
fists.
         As soon as Officer Rocha was punched, he activated his personal alarm device.
When activated, the alarm makes noise and sends a signal to officers in central control.
Officer Rocha wanted to enter the cell to assist Officer Ramirez, but could not because
there were five inmates coming toward him rather than lying down prone on their
stomachs. Officer Phillip Garcia yelled at the advancing inmates to get down and fired
several nonlethal 40-millimeter rounds at the approaching inmates. Officer Rocha was
never able to enter the cell to assist his partner.
         Jaimes, Perez, and Reyes were three of the approaching inmates. Jaimes was
leading Perez and Reyes. After the first shot was fired, the inmates initially got on their
stomachs in a prone position. Officer Rocha estimated they were about 100 feet away
from his position. The inmates got up from their prone position two more times, and
continued to advance on Officer Rocha before they stopped and remained in a prone
position. The inmates were coming from different directions and had Officer Rocha
surrounded. When the five inmates stopped their advance, they were within 20 feet of
Officer Rocha.5
Prior Offense
         Jaimes filed a motion inviting the trial court to strike one of his prior serious
felony convictions pursuant to Romero. According to the first amended information and
abstract of judgment from Jaimes’s prior convictions, which were added as exhibits to his
motion, Jaimes was charged with and convicted of one count of attempted murder

4     Officer Ramirez recalled that it was after Paraza punched Officer Rocha that he
used pepper spray on Paraza’s face.
5      The fight between Officer Ramirez and Paraza lasted for some time. During the
altercation, Paraza threw something into the toilet. Officer Ramirez eventually got
Paraza into physical restraints. Paraza told Officer Ramirez that he had “klavo” on him, a
slang term for drugs.


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(§§ 664 & 187, subd. (a)) and one count of assault with a deadly weapon, to wit, a knife
(§ 245, subd. (a)(1)). Both counts were alleged against the same victim and were based
on the same criminal act. No other victim was named in the first amended information.6
        During the sentencing hearing, the trial court and prosecutor agreed that Jaimes’s
prior convictions were based on a single act. Nevertheless, the trial court found Jaimes’s
conduct more criminally culpable and used both prior convictions for attempted murder
and assault with a deadly weapon as strikes, leading to concurrent sentences of 25 years
to life on counts 1 and 2.
                                  SENTENCING ERROR
        Jaimes contends the trial court erred in denying his request to strike one of his
prior serious felony convictions because both prior serious felony convictions were based
on a single act against a single victim. In July 2014, the California Supreme Court held
in Vargas, supra, 59 Cal.4th at pages 640-649 that when a defendant has been convicted
of committing a single criminal act on a single victim that results in two felony
convictions under different statutes, the trial court abuses its sentencing discretion if it
fails to strike one of the two convictions. The Vargas court reasoned that when the
offender commits but a single act, he or she does not pose a greater risk to society merely
because the Legislature has chosen to criminalize the act in different ways. (Id. at p.
646.)



6      In response to Jaimes’s request to strike one of his prior convictions, the
prosecutor also included a copy of the first amended information and our appellate
opinion in case No. F044030, affirming Jaimes’s convictions. According to the factual
summary of our opinion, Jaimes engaged in mutual combat with Samuel Vega. Vega left
the scene with Reynaldo Mendez in a car driven by Mendez’s wife. Jaimes and his
compatriots followed in their own vehicle. Eventually, while the Mendez car was
stopped at a light, Jaimes ran over to the Mendez car and plunged a knife into Reynaldo
Mendez’s chest through an open window. Jaimes did not assault or attack any other
occupant of the Mendez car.


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       We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) Jaimes’s two prior serious felony
convictions were based on a single criminal act on a single victim that led to convictions
for both attempted murder and assault with a deadly weapon. We find the trial court
erred in the instant action when it failed to strike one of Jaimes’s prior serious felony
convictions based on the same incident and used both felony convictions as strikes to
impose concurrent sentences of 25 years to life on counts 1 and 2. Accordingly, we
reverse the trial court’s sentence.
                                      DISPOSITION
       Jaimes’s convictions and the true findings by the jury of the prior serious felony
convictions are affirmed. The trial court’s sentence is vacated and the case is remanded
for resentencing consistent with People v. Vargas (2014) 59 Cal.4th 635.




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