Filed 8/24/20 P. v. Jaramillo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JORGE PEREZ JARAMILLO,

 Defendant and Appellant.

2d Crim. No. B296712

(Super. Ct. No. 18CR05562)

(Santa Barbara County)

Jorge Perez Jaramillo appeals the judgment entered after a 

jury convicted him of attempted rape of an unconscious or asleep 

person (Pen. Code,1 §§ 261, subd. (a)(4)(A), 664; count1) and 

attempted forcible rape (§§ 261, subd. (a)(2), 664; count 2).2 The 

1 All statutory references are to the Penal Code unless 

otherwise noted.

2 Appellant was charged with rape of an unconscious or 

asleep person and forcible rape. The jury found him not guilty of 
2

trial court sentenced him to three years in state prison, 

consisting of the midterm of three years on count one and a 

concurrent three-year term on count 2. Appellant was also 

ordered to pay various fines, fees and assessments including a 

$900 restitution fine (§ 1202.4, subd. (b)), $80 in court operations 

assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal 

conviction assessments (Gov. Code, § 70373). 

Appellant contends that his conviction of attempted forcible 

rape in count 2 must be reversed because insufficient evidence of 

the charge of forcible rape was adduced at the preliminary 

hearing, and the evidence at trial was insufficient to establish the 

force element of the offense. Appellant also contends that a 

concurrent term was imposed on count 2 in violation of section 

654. Finally, appellant claims the court erred in imposing the 

restitution fine and the court operations and criminal conviction 

assessments without first determining his ability to pay them, as 

contemplated in People v. Dueñas (2019) 30 Cal.App.5th 1157 

(Dueñas). We affirm.

STATEMENT OF FACTS

Prosecution

On the night of May 31, 2018, Jane Doe went to her friend 

Janie Tinoco-Thornhill’s home in Santa Maria with plans to stay 

the night. Doe knew Tinoco-Thornhill through Tinoco-Thornhill’s 

roommate Juan Posada, whom Doe had previously dated. 

After Doe and Tinoco-Thornhill purchased beer, Doe drank 

a 32-ounce beer in the garage of the house. Doe later purchased 

another 32-ounce beer and returned to the garage at about 

those offenses, but guilty of the lesser included offenses of 

attempted rape of an unconscious or asleep person and attempted 

forcible rape. 
3

midnight. At about 2:00 or 2:30 a.m., appellant, whom Doe had 

not previously met, joined Doe and Tinoco-Thornhill in the 

garage. After Doe had consumed about one-fifth of her second 

beer, she, appellant, and Tinoco-Thornhill each drank a shot of 

tequila. 

Doe, Tinoco-Thornhill, and appellant purchased food and 

returned to the garage. A short time later Doe vomited in the 

hallway bathroom. Tinoco-Thornhill took Doe into her bedroom. 

Tinoco-Thornhill then returned to the garage and had sex with 

appellant. 

Doe lay down on Tinoco-Thornhill’s bed while fully clothed 

and fell asleep. She later woke up to discover that her pants and 

underwear were pulled down and that a man she later identified 

as appellant was lying behind her and “having sex with [her],” 

i.e., his “penis was inserted in [her] vagina.” Doe reached back 

and stated, “Who the fuck are you?” and “What the fuck are you 

doing?” She told appellant to “stop” but he did not do so. When 

Doe extended her left arm toward appellant and tried to turn 

around, he “grabbed” her wrist, “directed it back in the position it 

was,” and said “Shhhh.” Appellant eventually stopped having 

intercourse with Doe, left the bedroom, and entered the hallway 

bathroom. Doe then recognized appellant as the perpetrator. 

Doe went to Posada’s bedroom and lay down in the bed next 

to Posada. She was crying but did not tell Posada what had 

happened. Posada told Doe he would drive her home, but Doe 

replied that she wanted Tinoco-Thornhill to do so. Doe then went 

into the hallway and told Tinoco-Thornhill that appellant had 

raped her. Tinoco- Thornhill drove Doe home and Doe called the 

police. 
4

Later that morning, a sexual assault examination was 

performed on Doe. A low amount of male DNA was subsequently 

detected on a swab obtained from Doe’s inner thigh and on the 

non-sperm fractions of swabs taken from Doe’s posterior

fourchette and vagina. An analysis of the swab from Doe’s inner 

thigh resulted in a partial Y haplotype (DNA profile) which was 

consistent with appellant’s reference haplotype. Appellant was 

excluded as a DNA contributor to the sperm fraction of the 

posterior fourchette swab. Swabs from Doe’s underwear and the 

waistband of her pants both contained a mixture of DNA from at 

least two males, with one major contributor and at least one 

minor contributor. Appellant could not be excluded as the major

source of the DNA because the detected major haplotype was 

consistent with his reference haplotype. 

Jamie Gerigk testified as an expert on rape trauma 

syndrome. Gerigk described the three stages of rape trauma 

syndrome: (1) in the acute stage after the assault, the victim 

often feels shock, disbelief, and confusion; (2) in the outward 

adjustment stage, the victim tries to forget the assault but starts 

to decline emotionally; and (3) in the resolution stage, the victim 

starts to emotionally deal with the assault. 

Defense

The day after the incident, Doe told the police that 

appellant had ejaculated inside of her. She also said she had 

difficulty understanding what had happened because she was 

very intoxicated when the incident happened. 

Marc Taylor, the owner and director of a Ventura forensic 

science laboratory, reviewed the forensic tests performed in 

appellant’s case. Taylor found no evidence of vaginal penetration 

from the DNA results as to the vaginal swab. Taylor also opined 
5

that the DNA found on the inner thigh swab did not require 

sexual activity. Taylor also explained that it is difficult to 

exclude an individual as the contributor of DNA when the 

detected DNA is a mixture of multiple individuals. 

DISCUSSION

Count 2 - Information

Appellant contends his conviction of attempted forcible 

rape in count 2 must be reversed because the charged offense of 

forcible rape was not supported by evidence presented at the 

preliminary hearing. We disagree.

An information filed after a preliminary hearing “must 

‘charge the defendant with either the offense or offenses named 

in the order of commitment or any offense or offenses shown by 

the evidence taken before the magistrate to have been 

committed.’ (§ 739.) The information cannot thereafter be 

amended ‘so as to charge an offense not shown by the evidence 

taken at the preliminary examination.’ (§ 1009.) A defendant 

charged by information may move the court [under section 995] 

to dismiss one or more of the counts on the ground that it was not 

supported by a finding of reasonable or probable cause at the 

preliminary hearing. [Citations.]” (Griffith v. Superior Court

(2011) 196 Cal.App.4th 943, 948-949.) In reviewing the denial of 

a section 995 motion on such grounds, “we must draw all 

reasonable inferences in favor of the information [citations] and

decide whether there is probable cause to hold the defendant[] to 

answer, i.e., whether the evidence is such that ‘a reasonable 

person could harbor a strong suspicion of the defendant’s guilt’ 

[citations].” (Lexin v. Superior Court (2010) 47 Cal.4th 1050, 

1072.)
6

“‘Forcible rape is an act of sexual intercourse accomplished 

with a person not the spouse of the perpetrator against the 

person’s will by means of force or violence.’” (People v. Clark 

(2011) 52 Cal.4th 856, 948 (Clark).) To establish the offense, “‘the 

prosecution need only show the defendant used physical force of a 

degree sufficient to support a finding that the act of sexual 

intercourse was against the will of the [victim].’ [Citation.]” 

(People v. Griffin (2004) 33 Cal.4th 1015, 1023-1024.)

Appellant was charged in a single-count felony complaint 

with rape of an unconscious or asleep person in violation of 

section 261, subdivision (a)(4)(A). Following the conclusion of 

Doe’s testimony at the preliminary hearing, the prosecutor stated 

his intent to add an additional charge of forcible rape in violation 

of section 261, subdivision (a)(2). Defense counsel objected, 

contending that Doe’s testimony was insufficient to prove the 

force element of the offense. The prosecutor replied that the force 

element was established by Doe’s testimony that appellant 

continued having intercourse with her after she woke up and told 

him to stop, as well as her testimony that appellant had grabbed 

her wrist and “direct[ed] [her] arm out of the way” when she 

reached out toward him. 

The trial court concluded that although it was a “close 

question” on the issue of force, the evidence was sufficient to hold 

appellant to answer on the charge of forcible rape. The court 

reasoned that “[Doe] did wake to find herself in a situation where 

she was in physical intimacy that she did not consent to, and was 

unable, for those critical moments, to disengage because of the 

physical proximity that he had placed himself in, and the 

redirection of her arm movements are part of that. As an 

alternative description of the event, I think there is probable 
7

cause, a point you can review more closely on a 995 motion, but I 

think the probable cause is there for that characterization on it.” 

After the two-count information was filed, appellant filed a 

section 995 motion to dismiss count 2 (forcible rape) on the 

ground there was insufficient evidence to prove the force element 

of the offense. The trial court denied the motion. 

The magistrate did not err in holding appellant to answer 

on the charge of forcible rape. At the preliminary hearing, Doe 

testified that appellant continued having intercourse with her 

after she told him to stop. When she reached out toward him, he 

grabbed her wrist and moved her arm out of the way. A 

reasonable trier of fact could thus find that appellant used 

physical force against Doe such that his act of sexual intercourse 

was against her will. (See, e.g., Clark, supra, 52 Cal.4th at p. 949 

[evidence was sufficient to support force element of attempted 

forcible rape where victim yelled “Stop” and “Leave me alone”]; 

see also People v. Griffin, supra, 33 Cal.4th at p. 1029 [evidence 

was sufficient to support finding that defendant used force in 

committing rape where he “pinned [the victim’s] arms to the floor 

as he penetrated her vagina with his penis” and “[t]he victim 

unequivocally testified she did not consent to the act of 

intercourse and that it was accomplished against her will”].)

Contrary to appellant’s claim, it is of no moment whether 

his actions “prevented [Doe] from turning her body.” It is wellsettled that “[t]he question for a jury considering the charge of 

forcible rape is ‘whether defendant used force to accomplish 

intercourse with [the victim] against her will, not whether the 

force he used overcame [her] physical strength or ability to resist 

him.’ [Citation.]” (People v. Lee (2011) 51 Cal.4th 620, 641, fn. 

15.) Appellant’s claim that the evidence produced at the 
8

preliminary hearing failed to support the charge of forcible rape 

accordingly fails.

Sufficiency of the Evidence

Appellant also contends the evidence is insufficient to 

support his conviction of attempted forcible rape. In reviewing 

such claims, we “must review the whole record in the light most 

favorable to the judgment to determine whether it contains 

substantial evidence—i.e., evidence that is credible and of solid 

value—from which a rational trier of fact could have found the 

defendant guilty beyond a reasonable doubt.” (People v. Nguyen 

(2015) 61 Cal.4th 1015, 1054-1055, internal quotation marks 

omitted.) We “presume in support of the judgment the existence 

of every fact the jury could reasonably have deduced from the 

evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We 

do not resolve evidentiary conflicts. (People v. Yeoman (2003) 31 

Cal.4th 93, 128.) “A reversal for insufficient evidence ‘is 

unwarranted unless it appears “that upon no hypothesis 

whatever is there sufficient substantial evidence to support”’ the 

jury’s verdict.” (Zamudio, at p. 357.)

Appellant’s sufficiency-of-the-evidence claim is premised 

solely on the force element of the offense. As we already 

explained in rejecting appellant’s first claim, the evidence is 

sufficient to support a finding that appellant used force against 

Doe such that his act of sexual intercourse was committed 

against her will. Moreover, appellant was convicted of attempted 

forcible rape. “Other than forming the requisite criminal intent, 

a defendant need not commit an element of the underlying 

offense.” (People v. Medina (2007) 41 Cal.4th 685, 694.) The 

issue is thus not whether appellant actually used enough force to 
9

overcome Doe’s will, but rather whether he attempted to do so. 

Appellant’s claim of insufficient evidence thus fails. 

§ 654

Appellant contends the court imposed a concurrent threeyear term on count 2 (attempted forcible rape) in violation of 

section 654 because the offenses in counts 1 and 2 were based on 

a single physical act. He argues that “[a]ccording to Jane Doe, at 

the time appellant grabbed her wrist, his penis was already 

inside her. The act had been accomplished. There was no 

showing of multiple objectives or intents. [Citation.] This was a 

single act constituting an indivisible transaction.” We are not 

persuaded.

“Section 654, subdivision (a), provides: ‘An act or omission 

that is punishable in different ways by different provisions of law 

shall be punished under the provision that provides for the 

longest potential term of imprisonment, but in no case shall the 

act or omission be punished under more than one provision.’” In 

determining whether a defendant may be subject multiple 

punishment under section 654, “[w]e [must] first consider if the 

different crimes were completed by a ‘single physical act.’ 

[Citation.] If so, the defendant may not be punished more than 

once for that act.” (People v. Corpening (2016) 2 Cal.5th 307, 

311.) “Whether a defendant will be found to have committed a 

single physical act for purposes of section 654 depends on 

whether some action the defendant is charged with having taken 

separately completes the actus reus for each of the relevant 

criminal offenses. [Citations.]” (Id. at p. 313.) 

The trial court did not violate section 654 by imposing a 

concurrent term on count 2. Count 1 was based on appellant’s 

attempt to have sexual intercourse with Doe while she was 
10

unconscious or asleep and was thus unable to give consent. 

(§ 261, subd. (a)(4)(A).) After it was clear to appellant that Doe 

was actually awake, he attempted to use force to have intercourse 

with her against her express will. Because the use or attempted 

use of force is an element of attempted forcible rape (§ 261, subd. 

(a)(2)), appellant did not complete the actus reus of that crime 

until he attempted to use such force. The court thus did not err 

in implicitly finding that the two crimes were not completed by a 

single physical act, such that multiple punishment was not 

barred under section 654.

Moreover, section 654 “does not prohibit the imposition of 

multiple punishment for separate sexual offenses committed 

during a continuous attack, ‘even where closely connected in 

time.’ [Citations.].” (People v. Hicks (1993) 6 Cal.4th 784, 788, 

fn. 4.). “[I]f a series of acts are committed within a period of time 

during which reflection was possible [citation], section 654 does 

not apply.” (People v. Kelly (2016) 245 Cal.App.4th 1119, 1136.) 

“Under section 654, ‘a course of conduct divisible in time, 

although directed to one objective, may give rise to multiple 

violations and punishment. [Citations.]’ [Citations.] This is 

particularly so where the offenses are temporally separated in 

such a way as to afford the defendant [the] opportunity to reflect 

and renew his or her intent before committing the next one, 

thereby aggravating the violation of public security or policy 

already undertaken. [Citation.]” (People v. Gaio (2000) 81 

Cal.App.4th 919, 935.)

Appellant, believing that Doe was asleep or unconscious, 

began having sexual intercourse with her. After she told him to 

stop and reached her arm back toward him, he had ample time to 

reflect upon what he was doing. Instead of stopping, he moved 
11

Doe’s arm out of his way and continued having intercourse with 

her. Because appellant’s actions constituted two separate acts 

between which he had an opportunity to reflect, the court did not 

violate section 654 by sentencing him on both counts of 

conviction. (People v. Kelly, supra, 245 Cal.App.4th at p. 1136.) 

Dueñas

Appellant contends the court erred in ordering him to pay a 

$900 restitution fine (§ 1202.4, subd. (b)), $80 in court operations 

assessments (§ 1465.8, subd. (a)(1)), and $60 in criminal 

conviction assessments (Gov. Code, § 70373), without first 

determining his ability to pay those fines and assessments, as 

contemplated in Dueñas, supra, 30 Cal.App.5th 1157. We are not 

persuaded.

Appellant was sentenced on March 28, 2019, almost three 

months after the opinion in Dueñas was issued. Appellant could 

have, but did not, raise his current claims at the time of 

sentencing. Accordingly, we agree with the People that 

appellant’s Dueñas claim is forfeited. (See People v. Trujillo 

(2015) 60 Cal.4th 850, 859.) 

In any event, the claim lacks merit. In Dueñas, the court 

concluded that “due process of law requires the trial court to 

conduct an ability to pay hearing and ascertain a defendant’s 

present ability to pay before it imposes court facilities and court 

operations assessments under . . . section 1465.8 and 

Government Code section 70373.” (Dueñas, supra, 30 

Cal.App.5th at p. 1164.) The court also concluded that “although 

. . . section 1202.4 bars consideration of a defendant’s ability to 

pay unless the judge is considering increasing the fee over the 

statutory minimum, the execution of any restitution fine imposed 

under this statute must be stayed unless and until the trial court 
12

holds an ability to pay hearing and concludes that the defendant 

has the present ability to pay the restitution fine.” (Ibid.)

With respect to appellant’s $900 restitution fine, the trial 

court had the authority, even before Dueñas, to “consider[ ]” the 

defendant’s “[i]nability to pay” whenever it “increase[ed] the 

amount of the restitution fine” in excess of the $300 minimum. 

(§ 1202.4, subds. (b)(1), (c).) When a statute mandates a fine but 

requires the court to consider the defendant’s ability to pay, the 

burden is on the defendant to object or demand a hearing to 

determine the ability to pay. (People v. McMahan (1992) 3 

Cal.App.4th 740, 749-750.) At sentencing, appellant did not 

object or demand a hearing regarding his ability to pay the 

restitution fine, so he forfeited his right to challenge that fine on 

appeal. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.) 

Because appellant failed to object to the $900 restitution fine by 

asserting an inability to pay, he also cannot be heard to complain 

that the court failed to consider his ability to pay the $60 in

criminal conviction assessment and $80 court operations 

assessment. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 

1033.)

In any event, “Dueñas is distinguishable. That case 

involved a homeless probationer, Velia Dueñas, who suffered 

from cerebral palsy and was unable to work. [Citation.]” (People 

v. Johnson (2019) 35 Cal.App.5th 134, 138.) Appellant, who was 

sentenced to prison, “is not similarly situated to the misdemeanor 

probationer in Dueñas. He was ordered to pay mandatory fees 

and a fine under the same constellation of statutes that were at 

issue in Dueñas, but there the similarity ends.” (Id. at p. 139.) 

As the trial court noted, appellant will have the ability to 

earn wages while in prison. Any due process violation arising 
13

from the court’s failure to consider appellant's ability to pay the 

challenged assessments was thus harmless beyond a reasonable 

doubt. (Id. at pp. 139-140 citing Chapman v. California (1967) 

386 U.S. 18, 24 [17 L.Ed.2d 705].)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P. J.

TANGEMAN, J.
14

John F. McGregor, Judge

Superior Court County of Santa Barbara

______________________________

Susan S. Bauguess, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and Chung L. Mar, Deputy Attorney General, 

for Plaintiff and Respondent.