Filed 10/7/15 P. v. Jimenez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

JUAN VASQUEZ JIMENEZ,

Defendant and Appellant.

F068128

(Super. Ct. No. F12906039)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Denise Lee

Whitehead, Judge.

Allen G. Weinburg, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Eric L. Christoffersen and Sally Espinoza, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOoo-

 

* Before Poochigian, Acting P. J., Detjen, J. and Peña, J.
2.

INTRODUCTION

Appellant Juan Vasquez Jimenez1 was found guilty of second degree robbery, 

assault by means of force likely to produce great bodily injury, and assault with intent to 

commit rape. The victim of all three offenses was Briana G. (Briana). Jimenez contends 

(1) the prosecutor committed misconduct in closing argument; (2) Penal Code section 

6542 bars imposition of concurrent terms for the two assault convictions; and (3) the 

abstract of judgment contains a clerical error. We direct that the clerical error in the 

abstract of judgment be corrected, and in all other respects we affirm the judgment. 

FACTUAL AND PROCEDURAL SUMMARY

On the evening of August 9, 2012, Henry Fujikawa drove his friend Briana to the 

Ambassador Inn. Briana asked Fujikawa to wait for her, so he remained in the area. 

Sometime after midnight, Briana was attempting to obtain money in exchange for sexual 

acts and was walking through the parking lot of a nearby McDonald’s restaurant when 

Jimenez whistled and called her over. 

Jimenez was wearing blue jeans, blue Vans shoes, a gray tank top, and had a gray 

shirt draped over his shoulders; he spoke with a heavy Spanish accent. Briana described 

Jimenez as a Hispanic male in his early 20’s, about five feet six inches tall, and weighing 

around 150 pounds. There was something about Jimenez that caused Briana not to trust 

him; she told him so and walked away. 

Jimenez approached Briana and the two began conversing. After some 

negotiating, Briana agreed to orally copulate Jimenez in exchange for $20. The two then 

walked to a secluded area behind the Ambassador Inn. Jimenez gave Briana the $20, 

 

1 Throughout the record and in the abstract of judgment, appellant’s middle name is 

spelled “Vasquez.” Appellant’s signature, however, in one instance, reflects the spelling 

of his middle name to be “Vazquez.” 

2 All further statutory references are to the Penal Code unless otherwise noted.
3.

which she placed in her bra. He then asked Briana to pull down her pants; she refused 

because they had not agreed to that. Jimenez attempted to persuade Briana to do as he

asked and then became mad when she would not comply; Briana told Jimenez she would 

pull down her pants if he paid her more money. Jimenez showed Briana a $100 bill that 

was in his wallet. 

Briana glanced down at her cell phone. As she did so, Jimenez “socked” her in 

her left cheek and Briana fell to the ground. While she lay on her back in the dirt, 

Jimenez sat on top of her and began hitting her face with his fists. Briana was screaming 

for him to stop. During the struggle, Jimenez took Briana’s cell phone and placed it 

behind him; he also removed the $20 from her bra. 

Jimenez pulled down his pants, withdrew his penis, and attempted to force his 

penis into Briana’s mouth. Briana struggled, but Jimenez’s penis partially entered her 

mouth. At some point, Jimenez fell to the side and Briana started to stand up. When 

Jimenez saw this, he began kicking Briana’s head and upper body. Briana estimated 

Jimenez kicked her about eight times. Briana was bleeding and had blood “all over” her 

shirt. (RT 132)! 

Eventually, Jimenez stopped and ran toward the Ambassador Inn; Briana ran after 

him, screaming. Briana ran to Fujikawa’s car, which was parked on the corner near the 

Ambassador Inn. Fujikawa noticed Briana had a bloody mouth, bloody nose, and a puffy 

right cheek. Briana was crying and was somewhat hysterical. 

Briana asked Fujikawa to pursue the man she had identified as her attacker; the 

man ran toward a Kentucky Fried Chicken (KFC) restaurant. They lost sight of Jimenez, 

and Briana used Fujikawa’s cell phone to call 911. Briana and Fujikawa waited for the 

police in the parking lot of the KFC restaurant. Officers arrived less than five minutes 

after the 911 call. 

Police officers found Jimenez lying on his side in a nearby bush; the sprinklers 

were on and were hitting the bush. When one of the officers ordered Jimenez to come 
4.

out of the bushes, there was no response. The officer reached for Jimenez’s hands, but 

Jimenez pulled away and placed his hands under his body. Another officer came to assist 

and the two officers managed to extract Jimenez from the bushes; the water hitting 

Jimenez from the sprinklers made it more difficult to “get a grip” on him. When officers 

pulled Jimenez from the bushes, Briana yelled, “That’s him.” 

The officers searched unsuccessfully for Briana’s cell phone. While the officers 

were at the KFC parking lot, Briana went to the location where she had been assaulted to 

look for her key card to her hotel room. At trial, Briana could not specifically recall but 

believed she had been unable to locate the key card. She did, however, find her cell 

phone in the dirt. When she returned to her hotel room, Briana saw that she had two 

black eyes, a lump on her forehead, and her face was swollen and bloody. 

During the incident, Briana noticed that Jimenez had gold “outlines” around his 

front teeth. One of the officers who extracted Jimenez from the bushes also noticed that 

Jimenez had a gold outline around one of his front teeth. 

District Attorney Investigator David Medina spoke with Briana on June 24, 2013. 

Briana told him that she initially believed Jimenez had taken her cell phone, but she later 

found her cell phone and key card near where she had been attacked. Medina again 

spoke with Briana on July 15, 2013, at which time she told Medina that Jimenez had 

propositioned her for a sexual act and they had negotiated over the price. Briana also told 

Medina that when Jimenez opened his wallet, she saw a picture of a Hispanic female with 

curly hair wearing a white sweater. 

On July 16, 2013, Medina had a correctional officer remove Jimenez’s wallet from 

a property bag and Medina photographed the contents. When Median unfolded the 

wallet, he saw a photograph that was consistent with the one described by Briana. After 

Medina photographed the wallet and its contents, the correctional officer placed the items 

back into the property bag and sealed it. 
5.

Blood was found on the white undershirt and gray shirt Jimenez was wearing 

when arrested. 

Jimenez was charged with second degree robbery (count 1), assault by means of 

force likely to produce great bodily injury (count 2), and assault with intent to commit 

rape (count 3). Jimenez pled not guilty. On August 20, 2013, a jury found Jimenez 

guilty as charged on all three counts. 

The trial court sentenced Jimenez to four years in state prison for the assault with 

intent to commit rape conviction, and a three-year term was imposed for each of the other 

two convictions, with the terms to run concurrently to the term imposed on count 3. 

DISCUSSION

Jimenez raises three issues in this appeal. First, he contends the prosecutor 

committed misconduct in closing argument. Second, Jimenez asserts the term imposed 

for count 2 should be stayed pursuant to section 654. Lastly, Jimenez maintains the 

abstract of judgment incorrectly describes the count 2 offense and should be corrected. 

I. No Prosecutorial Misconduct

Jimenez contends the prosecutor committed misconduct in closing argument by 

commenting on his prearrest silence, thereby violating his rights to due process and a fair 

trial. This contention lacks merit.

Factual Summary

During closing argument, the prosecutor maintained that Jimenez’s act of fleeing 

and hiding in the bushes while the sprinklers were going reflected a consciousness of 

guilt. The prosecutor went on to argue that:

“There is no reason to be in those bushes ... other than the fact that the 

person, who he just beat up and tried to assault and put his penis in her 

mouth, is just feet away, and she’s on the phone with 911 calling the police, 

and he’s in a spot where if he tried to make a run for it, she’s going to see 

him again. Now, if he was innocent and didn’t do anything wrong, when 

the police showed up, an innocent person says, ‘Thank goodness you’re 
6.

here. Hey, I’m over here. Can you believe what just happened. Hey, look 

at this. Oh, my gosh, I feel safe, now that you’re here.’” 

At the next recess in the proceedings, defense counsel argued that the above 

comments by the prosecutor amounted to error pursuant to Griffin v. California (1965) 

380 U.S. 609, as it was a comment on Jimenez’s failure to speak with police. The 

prosecutor responded that his remarks were not a comment on Jimenez’s failure to speak 

with police; rather, the remarks were an observation about why Jimenez would be hiding 

in the bushes. 

The following morning the trial court ruled that no Griffin error had been 

committed because the prosecutor had not commented on Jimenez’s failure to testify or 

his postarrest silence. Instead, the trial court opined that the prosecutor “simply 

commented that an innocent person wouldn’t have remained hidden when the police 

arrived, and this is similar to arguing flight is evidence of guilt, which clearly is 

permissible.” 

Analysis

Jimenez contends that the prosecutor’s remarks were misconduct for two reasons: 

(1) the remarks referred to highly prejudicial facts not in evidence, and (2) the remarks 

constituted error under Griffin of Jimenez’s right to remain silent at trial and under Doyle 

v. Ohio (1976) 426 U.S. 610 (Doyle) of his right to remain silent after receiving warnings 

pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Jimenez contends these errors were 

prejudicial. There was no error and thus no prejudice.

Under federal constitutional principles, a prosecutor commits reversible error only 

if the conduct infects the trial with such “‘“unfairness as to make the resulting conviction 

a denial of due process.”’” (People v. Davis (2009) 46 Cal.4th 539, 612 (Davis).) 

California state law requires reversal when a prosecutor uses “‘deceptive or reprehensible 

methods’” and “‘“it is reasonably probable that a result more favorable to the defendant 

would have been reached without the misconduct.”’” (Ibid.) 
7.

Doyle prohibits commenting on a defendant’s election to remain silent after 

receiving Miranda warnings. Under the holding of Doyle, postarrest silence after 

Miranda warnings may not be used to impeach a defendant’s trial testimony. To do so 

violates a defendant’s right to due process and a fair trial. (Doyle, supra, 426 U.S. at 

pp. 617-618; People v. Collins (2010) 49 Cal.4th 175, 203.) Here, however, the 

prosecutor’s remarks concerned a timeframe before Jimenez had been placed under arrest 

and before he received Miranda warnings. It is not improper to comment on a 

defendant’s prearrest and pre-Miranda warning silence. (Jenkins v. Anderson (1980) 447 

U.S. 231, 238, 240-241.) Moreover, Jimenez did not testify at trial, so the prosecutor 

could not have been looking to impeach Jimenez’s testimony. The facts simply do not 

support any claim of Doyle error. 

The cases cited by Jimenez do not support his contention that the prosecution was 

precluded from commenting on his action of fleeing the scene, hiding from the police, 

and prearrest silence and lack of explanation for his conduct. This court’s opinion in 

People v. Free (1982) 131 Cal.App.3d 155 made clear that a defendant can be crossexamined about flight after a shooting and the defendant’s failure to contact the police. 

(Id. at p. 162.) As we stated in Free, “Prearrest silence may be commented upon unless 

the court finds the silence was an invocation of Fifth Amendment rights.” (Id. at p. 165.) 

The prosecutor’s remarks in Jimenez’s case addressed a timeframe when Jimenez had not 

been arrested or issued Miranda warnings. 

We do not view Jimenez’s prearrest silence as invoking his Fifth Amendment 

privilege to remain silent; rather, it is evidence of consciousness of guilt, as the 

prosecutor argued. “[A] defendant normally does not invoke the [Fifth Amendment]

privilege by remaining silent.” (Salinas v. Texas (2013) 570 U.S. ___ [133 S.Ct. 2174, 

2181].) In Salinas, the defendant had been questioned by police; he was not in custody; 

and he had not been issued Miranda warnings. (Salinas, at p. ___ [133 S.Ct. at p. 2178].) 

The defendant answered some questions, but not others, and defendant did not testify at 
8.

trial. The prosecution used the defendant’s silence in response to some questions as 

evidence of guilt. (Id. at pp. ___, ___ [133 S.Ct. at pp. 2178-2179].) The United States

Supreme Court affirmed, holding that the defendant must expressly invoke the Fifth 

Amendment privilege in order to claim it; silence is not sufficient. (Salinas, at pp. ___, 

___ [133 S.Ct. at pp. 2178, 2183].)

The case of People v. Waldie (2009) 173 Cal.App.4th 358 also does not support 

Jimenez’s position. In Waldie, police made repeated phone calls to a suspect, asking the 

suspect to call them back regarding an investigation of child molestation charges. The 

defendant refused to return the phone calls and to speak to the police, which the 

prosecutor argued was evidence of consciousness of guilt. (Id. at p. 366.) The appellate 

court in Waldie held that police could not repeatedly call a suspect and then comment on 

the suspect’s unwillingness to cooperate with them, as this infringed on the protection 

against self-incrimination. (Ibid.) Here, the police were not making multiple attempts to 

speak to Jimenez about the offenses, and Jimenez’s prearrest and pre-Miranda silence

cannot reasonably be viewed as an invocation of the right to remain silent, as could the 

defendant’s actions in Waldie.

The facts also do not support any claim of Griffin error. Griffin “prohibits any 

comment on a defendant’s failure to testify at trial that invites or allows the jury to infer 

guilt therefrom, whether in the form of an instruction by the court or a remark by the 

prosecution.” (People v. Clair (1992) 2 Cal.4th 629, 662.) In People v. Sanchez (2014) 

228 Cal.App.4th 1517, a prosecutor commented that “‘If the defense had a plausible, 

reasonable explanation why the defendant was in the yard that morning, they would have 

given it. They haven’t.’” The appellate court held this remark did not constitute Griffin 

error. (Sanchez, at p. 1525.) Although Jimenez did not testify at trial, the prosecutor’s 

comments in closing argument could not reasonably be construed as commenting on a 

failure to testify. The prosecutor’s remarks were directed at Jimenez’s prearrest actions, 

including his prearrest silence. 
9.

As for Jimenez’s contention that the comments constituted highly prejudicial facts 

not in evidence, this contention is specious. The prosecutor did not refer to any facts 

relating to the offenses that were not in evidence; the remarks constituted comment on the 

evidence. A prosecutor is given wide latitude to comment on the evidence, “‘which can 

include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is 

also clear that counsel during summation may state matters not in evidence, but which are 

common knowledge or are illustrations drawn from common experience, history or 

literature.’” (People v. Wharton (1991) 53 Cal.3d 522, 567.) 

“‘[T]he protective shield of the Fifth Amendment should [not] be converted into a 

sword that cuts back on the area of legitimate comment by the prosecutor on the 

weaknesses in the defense case.’” (United States v. Robinson (1988) 485 U.S. 25, 32.) 

Here, the prosecutor’s remarks constituted fair comment on the evidence, not Doyle or 

Griffin error. There was no prosecutorial misconduct. (Davis, supra, 46 Cal.4th at 

p. 612.) 

II. Section 654 Does Not Apply

Jimenez’s second contention is that section 654 precludes imposition of 

punishment for both the counts 2 and 3 offenses. He is mistaken.

Jimenez was convicted of the count 2 offense, assault by means of force likely to 

produce great bodily injury, and count 3, assault with intent to commit rape. The trial 

court sentenced Jimenez to four years in state prison for the count 3 offense and imposed 

a concurrent term of three years for the count 2 offense. 

Under section 654, a trial court may sentence a defendant for only one offense 

based on the “same act or omission,” even where that act or omission results in multiple 

convictions. (§ 654, subd. (a).) If the evidence establishes a defendant entertained 

multiple criminal objectives that were independent of and not merely incidental to each 

other, a trial court may impose punishment for acts committed in pursuit of each 
10.

objective, even though the acts may be part of an otherwise indivisible course of conduct. 

(People v. Liu (1996) 46 Cal.App.4th 1119, 1135 (Lui).) 

Whether section 654 applies in a given case is a factual determination for the trial 

court and its findings must be upheld on appeal if there is any substantial evidence to 

support them. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 (Jones).) In 

conducting our review, we view the evidence in the light most favorable to the trial 

court’s findings and presume the existence of every fact the trier of fact reasonably could 

deduce from the evidence. (Ibid.) The trial court’s findings may be express or implied. 

(People v. McCoy (1992) 9 Cal.App.4th 1578, 1585.) 

The crime of assault with intent to commit rape is complete when the perpetrator 

intends to rape the victim and intends to use force to overcome the victim’s resistance. 

(People v. Green (1960) 180 Cal.App.2d 537, 542-543.) Here, Jimenez did not just 

intend to use force; he actually used physical force in his attempt to rape Briana. He 

“socked” her in the left cheek, got on top of her, and began hitting her face with his fists. 

Jimenez then pulled down his pants, withdrew his penis, and attempted to force his penis 

into Briana’s mouth. When Jimenez moved to one side and off of Briana, she started to 

get up. The reasonable inference is that at the point Jimenez moved off of Briana, he had 

ceased to attempt to rape Briana and the crime of assault with intent to commit rape was 

complete. 

The offense of assault by means of force likely to produce great bodily injury 

requires a use of force that is not required for an assault with intent to commit rape. 

(People v. Aguilar (1997) 16 Cal.4th 1023, 1038 (conc. opn. of Mosk, J.).) The evidence 

shows that after the assault with intent to commit rape was complete and Briana 

attempted to get up, Jimenez stood up and gratuitously began kicking her head and upper 

body. Briana estimated Jimenez kicked her in the head eight times after she was trying to 

stand up and get away from him after the completion of the assault with intent to commit 
11.

rape. The reasonable inference is that after abandoning his attempt to rape Briana, he 

violently assaulted her for having resisted and thwarted his attempt.

Substantial evidence supported the trial court’s implied finding that Jimenez had a 

distinctly different objective when he sat on top of Briana and punched her and removed 

his penis from his pants than when he was standing and kicking her about the head after 

abandoning his attempt at rape. (Jones, supra, 103 Cal.App.4th at p. 1143.) 

Consequently, section 654 does not preclude imposition of a term of punishment for each 

offense. (Liu, supra, 46 Cal.App.4th at p. 1135.) 

As for Jimenez’s assertion in a footnote of his opening brief that this court should 

find the intent for the counts 1 and 2 offenses were the same if we conclude the intent for 

the counts 2 and 3 offenses differ, we decline to address this contention on its merits. If a 

party’s brief does not provide reasoned legal argument and citation to authority on each 

point raised, “‘the court may treat it as waived, and pass it without consideration.’” 

(People v. Stanley (1995) 10 Cal.4th 764, 793.) Here, Jimenez has provided no reasoned 

argument or citation to authority for his contention that the intent for the counts 1 and 2 

offenses were identical; thus, the issue is waived. 

III. Abstract of Judgment

Jimenez’s last contention in this appeal is that the abstract of judgment contains a 

clerical error in that it incorrectly describes the count 2 offense for which he was 

convicted. The People concede the issue. 

In count 2, Jimenez was convicted of violating section 245, subdivision (a)(4), 

assault by means of force likely to produce great bodily injury. The abstract of judgment 

states the correct code section and subdivision, but incorrectly describes the offense as 

assault with great bodily injury. 

This court has the inherent power to correct clerical errors in an abstract of 

judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We will direct that the 

abstract of judgment be corrected to accurately reflect the section 245, subdivision (a)(4) 
12.

offense as assault by means of force likely to produce great bodily injury, not assault with 

great bodily injury. 

DISPOSITION

The abstract of judgment is ordered corrected to reflect the count 2 offense as 

assault by means of force likely to produce great bodily injury. A copy of the corrected 

abstract of judgment shall be forwarded to the appropriate authorities. In all other 

respects, the judgment is affirmed.