Filed 12/9/22 P. v. Jimenez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DAVID JIMENEZ,

Defendant and Appellant.

 D080923

 (Super. Ct. No. RIF1902202)

APPEAL from a judgment of the Superior Court of Riverside County, 

Stephen J. Gallon, Judge. Affirmed. 

Mark D. Johnson, under appointment by the Court of Appeal, for

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal and Minh U. Le, Deputy Attorneys General for Plaintiff and 

Respondent. 
2

INTRODUCTION

After his brother refused to loan him $40, Anthony Jimenez became 

angry and attacked his 64-year-old stepfather, Dale B., “scalp[ing]” his head 

and cutting his face with a knife. Jimenez then knocked Dale down and 

began tying up Dale with duct tape. Dale broke loose and told Jimenez,

“[W]e’re gonna get in the truck and go get your money and you can stop all 

this.” Despite bleeding profusely from his head and face injuries, Dale drove 

Jimenez five miles to a bank ATM to withdraw the money Jimenez wanted—

all while Jimenez held the knife to Dale’s throat. A jury convicted Jimenez of 

kidnapping to commit robbery (Pen. Code,1 § 209, subd. (b)(1)), among other 

felony charges. Jimenez argues his aggravated kidnapping conviction must 

be reversed, asserting there was insufficient evidence that he used force to 

move Dale because Dale voluntarily consented to going to the ATM. We 

conclude Jimenez’s argument has no merit, and so we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

I.

Trial

A. Prosecution’s Case

When Dale married Rosemary B., he became the stepfather of her three 

young boys, ages three, five, and seven. He raised the boys, including 

Jimenez, as his own and did everything a father would do with his sons, 

including coaching their sports teams. Dale and Rosemary were married 36 

years at the time of trial. 

Jimenez, who was in his late thirties, had been living with Dale and his 

mother off and on for most of his life. One morning in May 2019, Dale went 

1 All further statutory references are to the Penal Code. 
3

with Jimenez to help Jimenez buy a car. Later that day, Jimenez drove the 

car to his brother’s house to show it off. 

When Jimenez returned home later that evening, only Dale was home 

because Rosemary was away on a trip. Jimenez told Dale he needed a $40 

loan from his brother but his brother said he did not have the money. During 

the conversation, Jimenez “turned into another person” and became enraged 

with Dale. Jimenez yelled at Dale about needing the $40, and accused Dale 

of cheating on Jimenez’s mother and watching Jimenez’s adult film videos. 

None of this made sense to Dale. 

Jimenez then went to his bedroom, returned with a knife, grabbed 

Dale, and started to “scalp” him. He grabbed Dale by his hair, pulled back 

the skin of Dale’s scalp, and began cutting it with his knife. Dale “let him

because [he] didn’t want to fight back.” At this point, the prosecutor observed 

Dale “becoming emotional” in his testimony and Dale agreed. In the attack, 

he punched Dale in the face, and cut his nose and ear. As Dale’s head bled 

onto his face and obstructed his vision, Jimenez kept yelling at Dale and 

asking him for the $40. Dale told Jimenez he did not have the money. 

Dale then went into the bathroom to clean up his face and to try to stop 

the bleeding. But Jimenez followed him into the bathroom. Dale “got a little 

mad” and told Jimenez, “[C]ome on, . . . let’s go get you some money so that 

you can stop being angry.” When the prosecutor asked Dale if he was afraid 

of what was happening and how Jimenez was behaving, Dale said that he 

“wasn’t really afraid.” He was “just trying to keep [Jimenez] calm,” and 

thought perhaps Jimenez had cut him “by accident.” The prosecutor asked

Dale, “So while everything that’s going on at the house, him using a knife to 

your head, punching you and cutting other parts of your face, at that point 
4

you didn’t believe he was going to kill you?” Dale responded, “I don’t want to 

think that.” 

Dale left the bathroom and tried to get to his truck in the garage. 

Again, Jimenez followed him. In the garage, Jimenez knocked Dale down 

and tried to tie him up with duct tape. He tried to put duct tape around 

Dale’s head and his mouth. He put duct tape around Dale’s wrist, but Dale 

“broke loose.” Dale got up and said, “[Y]ou know what, we’re gonna get in the 

truck and go get your money and you can stop all this.” Dale was “hoping” 

that by taking Jimenez to the ATM to get “his money,” he could get Jimenez 

to “calm down and do whatever he needed to do with the $40.” He agreed 

with the prosecutor he was “hoping that by doing this the violence would 

end.” So he “persuaded” Jimenez to get in the truck, and go with Dale to the 

ATM to withdraw the $40. 

When they got into Dale’s new truck, Dale sat in the driver’s seat and 

Jimenez sat directly behind Dale. Dale drove Jimenez to his bank’s ATM. 

During the five-mile drive to the ATM, Jimenez held the same knife he used 

to cut Dale’s head against Dale’s throat. Jimenez “ ‘kept slapping’ ” him with 

the knife and at one point, he grabbed Dale’s hair and pulled Dale back. Dale 

does not know how he was able to drive because he was still bleeding from his 

head and face injuries. Still, Dale claimed he was not afraid for his life at 

this point. 

When they reached the drive-through ATM, with the knife still at his 

neck, Dale withdrew $40 from his account and gave it to Jimenez. After Dale 

handed him the money and they were on their way home, Jimenez took the 

knife away from Dale’s neck. Dale was concerned about his bleeding head 

injury and believed he needed to get to a hospital. 
5

Halfway home, Jimenez “all of a sudden” began crying and asked Dale 

what had happened to cause Dale’s bleeding. Dale “kept [his] composure” 

and “played it off,” telling Jimenez, “Oh, I just bumped my head on . . . the 

thing.” When they arrived home and got out of the truck, Dale deliberately 

let Jimenez lead the way to the house. Once Jimenez was about five or six 

feet in front of him, Dale jumped back into his truck and “took off” for the 

hospital. Dale did not go to the hospital with Jimenez because he felt he 

“needed to get away from him” and “let him cool down.” Dale explained he

was “[a] little” afraid of Jimenez, at this point. 

As Dale drove away, Jimenez got into his own car and cut off Dale in 

the street. Jimenez jumped out of his car, approached Dale in his truck, and 

asked, “[W]hat do you think you’re doing?” Dale put his truck in reverse,

knocking Jimenez down, made a U-turn, and started driving back toward the 

house. But Jimenez got back in his car and used it again to cut off Dale at 

the other end of the street. Dale made a three-point turn and started driving 

away. Dale thought he had left Jimenez when suddenly Jimenez rammed his 

car into Dale’s truck. Dale explained, at this point, he “got scared.” Jimenez 

tried to ram him again, so Dale “punched” the gas and got away. 

At the emergency room, Dale received 13 stitches to the cut on his 

head. He had multiple cuts on his nose, cheek, and head. 

During Dale’s testimony, the prosecutor entered 13 photographs into 

evidence.2 Exhibits 1 and 2 are photographs of Dale at the ATM with blood 

coming down his face from his injuries. Exhibits 3, 4, and 6 are photographs

of Dale’s head and facial injuries taken at the emergency room. Exhibit 3

shows Dale’s scalp, with blood on the left side of his head where Jimenez 

2 We requested these exhibits from the Superior Court and have 

reviewed them in deciding this appeal. 
6

“scalped” him, and a cut to his nose. Exhibit 4 shows Dale’s face with a cut to 

the front of his nose. Exhibit 6 shows the 13 stitches to Dale’s scalp. 

Exhibits 7 and 8 show the interior of Dale’s truck with blood, including on the 

steering wheel and gear shift. Exhibit 9 shows damage to the back of Dale’s 

truck. Exhibits 12 and 13 show a used length of duct tape and a roll of duct 

tape with blood. 

When the prosecutor asked the trial court for permission to publish the 

photographs to the jury by showing them on Dale’s monitor, Dale repeatedly 

objected. He asked the court, “Is [the prosecutor] gonna put that up there?” 

and when the court said yes, Dale stated: “I don’t want to watch.” When the 

prosecutor attempted to publish Exhibit 12, the photograph of the duct tape,

on his monitor, Dale told her, “Don’t put that on there.” The court explained, 

“I know this is difficult, but you will have to answer questions.” Dale 

responded, “She was trying to turn the monitor on, and I don’t want the 

monitor on.” 

Dale acknowledged that reporting Jimenez’s attack on him has caused 

“friction” with his wife Rosemary and she has been upset with him. He 

explained: “I’m the stepdad. She’s the biological mother. And we both love 

Anthony. But, yes, it’s been quite a struggle knowing that we had this 

incident.” Dale admitted it was “very true” that he did not want to be in 

court. 

B. Defense Case

Jimenez called his mother, Rosemary, and his aunt in his defense. 

Rosemary testified that she suspected Jimenez had a mental illness in 2019

because she had heard him talking to himself. Rosemary also testified that 

she had observed Jimenez “slugging” himself in the head. Jimenez’s aunt 

testified that over the period of 2014 to 2019, she thought Jimenez had a 
7

mental illness because “his entire persona changed like a switch”; she saw 

him talking to himself; and she noticed that he talked about people following 

him, trying to kill him, and trying to take his money. 

II.

Verdict and Sentencing

After deliberating for less than one day, the jury convicted Jimenez on 

the four charged counts: kidnapping to commit robbery (§ 209, subd. (b)(1); 

count 1); assault with a deadly weapon (§ 245, subd. (a)(1); count 2); first

degree robbery (§§ 211, 212.5, subd. (b); count 3); and resisting a peace officer 

(§ 148, subd. (a)(1); count 4). As to counts 1 and 4, the jury found true that 

Jimenez used a deadly and dangerous weapon, a knife, in the commission of 

those offenses. (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)). The jury also 

found it true that Jimenez personally inflicted great bodily injury on the 

victim in the commission of the aggravated kidnapping (§§ 1192.7, subd. 

(c)(8), 12022.7, subd. (a)). 

In a bifurcated proceeding, Jimenez admitted a prior strike conviction 

(§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1), which the trial court dismissed 

on Jimenez’s Romero3 motion under section 1385. 

The trial court sentenced Jimenez to a total prison term of three years 

plus seven years to life, consisting of: an indeterminate term of seven years 

to life for kidnapping to commit robbery conviction (count 1) plus a 

consecutive term of one year for the associated dangerous weapon 

enhancement; a concurrent, low term of two years for the deadly weapon 

assault conviction (count 2); a consecutive, low term of 2 years on the first 

degree robbery conviction (count 3); and a concurrent jail term of 180 days for 

3 People v. Superior Court (Romero) (1996) 13 Cal.4th 497. 
8

the resisting a peace officer conviction (count 4). The court imposed and 

struck the punishment for the remaining enhancements. 

DISCUSSION

On appeal, Jimenez challenges only the sufficiency of the evidence to 

support his conviction for kidnapping to commit robbery, or aggravated 

kidnapping. In evaluating his claim, we review the entire record in the light 

most favorable to the prosecution and determine whether it contains 

substantial evidence from which a reasonable trier of fact could find Jimenez 

guilty beyond a reasonable doubt. (People v. Rountree (2013) 56 Cal.4th 823,

852−853 (Rountree).) We presume the existence of every fact the trier could 

reasonably deduce from the evidence in support of the judgment (People v. 

Jackson (2014) 58 Cal.4th 724, 749), and we do not substitute our judgment 

for that of the jury or reverse merely because the evidence might also support 

a different finding (People v. Hill (1998) 17 Cal.4th 800, 849). 

Under California law, a person is guilty of kidnapping if he or she 

“forcibly, or by any other means of instilling fear, steals or takes, or holds, 

detains, or arrests any person in this state, and carries the person into 

another country, state, or county, or into another part of the same county[.]”

(§ 207, subd. (a).) The crime of kidnapping requires that “the victim’s 

movement must be accomplished by force or any other means of instilling 

fear” (People v. Majors (2004) 33 Cal.4th 321, 326–327 (Majors)), and the 

movement must be without the victim’s consent (Rountree, supra, 56 Cal.4th 

at p. 852). “[T]he concepts of consent and force or fear ‘are clearly 

intertwined’ ” (Majors, at p. 327), and there can be no kidnapping “[i]f a 

person’s free will was not overborne by the use of force or the threat of force” 

(People v. Hill (2000) 23 Cal.4th 853, 856 (Hill)). And when the kidnapping is 

committed for robbery, the offense is aggravated kidnapping and subject to 
9

the greater punishment of life imprisonment with the possibility of parole. 

(§ 209, subd. (b)(1); see People v. Curry (2007) 158 Cal.App.4th 766, 778–779.) 

Here, the trial court correctly instructed the jury that to prove Jimenez

guilty of kidnapping for the purpose of robbery under section 209, subdivision 

(b), the People must prove: 

“1. The defendant intended to commit robbery; 

“2. Acting with that intent, the defendant took, held, or detained

 another person by using force or by instilling a reasonable fear;

“3. Using that force or fear, the defendant moved the other person

 [or made the other person move] a substantial distance;

“4. The other person was moved or made to move a distance

 beyond that merely incidental to the commission of a robbery; 

“5. When that movement began, the defendant already intended

 to commit robbery; 

“6. The other person did not consent to the movement;

“AND

“7. The defendant did not actually and reasonably believe that 

 the other person consented to the movement.” (CALCRIM 

 No. 1203) (Italics added.) 

The jury was further instructed that “[i]n order to consent, a person must act 

freely and voluntarily and know the nature of the act.” We presume the jury 

followed the instructions given to it. (People v. Case (2018) 5 Cal.5th 1, 32.) 

Despite the extreme violence he inflicted on his stepfather, Jimenez 

contends there was insufficient evidence that he used force or fear to compel 

Dale to go to the bank (element 3) or that Dale went against his will (element 

6). He contends this is so because Dale testified “the trip to the bank” was 

his idea, he was not afraid during the violent ordeal, and that he even had to 
10

“persuade” Jimenez to go. We disagree. Contrary to Jimenez’s contention, 

there was sufficient evidence from which the jury could find both elements 3 

and 6 were satisfied. 

The evidence established the following. Jimenez “scalped” Dale with a 

knife, by pulling his hair back and cutting into his scalp. He left a gash in his 

stepfather’s head that required 13 stitches. After inflicting this injury, 

Jimenez also punched Dale in the face, and cut his nose and ear with the 

knife. As his stepfather bled down his face, Jimenez said he needed $40 and 

Dale told him that he did not have the money. Jimenez followed Dale into 

the bathroom, still holding the knife in anger, at which point, Dale told 

Jimenez, “[L]et’s go get you some money so that you can stop being angry.” 

(Italics added.) Jimenez again followed Dale as he tried to get to his car in 

the garage, and there Jimenez knocked him down and tried to duct-tape his 

mouth and his wrists. When Dale broke loose, he told Jimenez, “[W]e’re 

gonna get in the truck and go get your money and you can stop all this.” 

(Italics added.) Although he claimed to not be afraid in these moments, Dale 

testified he was “hoping” that by suggesting they go to the bank to get the 

money, “the violence would end.” It did not. Dale drove Jimenez five miles to 

his bank’s ATM, with Jimenez behind him, holding the same knife to his 

throat. Jimenez slapped him with the knife and, again, grabbed Dale’s head 

by the hair and pulled him back. The photographs of Dale at the ATM 

showed Dale still bleeding from his head as he withdrew money, which we 

know from Dale’s testimony he did at knifepoint. Only after he got his $40 

did Jimenez take the knife away from Dale’s neck. 

On these undisputed facts, and drawing all reasonable inferences, a 

jury could reasonably conclude that Dale did not suggest and then consent to

going to the bank freely and voluntarily. Rather, Dale did so because he felt 
11

he had no other choice, or hope, if he were to make the violence end. (See, 

e.g., Rountree, supra, 56 Cal.4th at p. 853 [in kidnapping case, prosecution 

“aptly argued” that “ ‘[a] person who gets into the car with two total strangers 

because these people are armed with a weapon is not acting freely and 

voluntarily’ ”]; Majors, supra, 33 Cal.4th at p. 328 [discussing People v. La 

Salle (1980) 103 Cal.App.3d 139, 146, (disapproved on other grounds 

in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12) in which jury could find 

victim was forced to consent to movement where victim “entered the car not 

voluntarily, but because the defendant had her [toddler] daughter in the car, 

and could have driven away with her . . . [thus] she felt she had no choice but 

to cooperate”].) Indeed, these are the very conclusions the prosecutor argued 

the jury should draw from the evidence, and the jury’s verdict on the 

aggravated kidnapping count demonstrates they accepted the prosecutor’s 

argument. Under these circumstances, there was sufficient evidence that 

Dale’s free will was overborne by Jimenez’s use of force and violence, 

sufficient for a kidnapping. (See Hill, supra, 23 Cal.4th at p. 856.) 

We are not persuaded to the contrary by Jimenez’s hyperfocus on Dale’s 

testimony that it was Dale’s idea to go to the bank, that he was not afraid

during the violence, and that he had to persuade Jimenez to go to the bank. 

It is clear from the record that Dale was a reluctant and conflicted witness. 

Dale explained his cooperation with law enforcement caused “friction” with 

his wife, to whom he had been married for 36 years, and that he did not want 

to be in court testifying against his son. He was still visibly emotional, even 

nearly two and one-half years later, as evidenced by his objections to seeing 

the photographic evidence of the trauma he suffered. The prosecutor argued 

to the jury that Dale “may have said” he voluntarily went to the bank, “but 

what did we hear?,” urging the jury to scrutinize Dale’s credibility on that 
12

very statement. The prosecutor argued Dale did not suggest and then drive 

Jimenez to the bank “freely”; rather, “[h]e did it because of the madness of 

what was happening to him, what the defendant was doing to him.” 

On this record, the jury was entitled to disbelieve Dale’s testimony that 

he was not afraid during Jimenez’s ongoing attacks, and the jury could 

reasonably find that Dale was compelled to propose going to the bank out of 

force or fear. The jury was properly instructed that it, alone, “must judge the 

credibility or believability of the witnesses” and that it could “believe all, 

part, or none of any witness’s testimony.” (CALCRIM No. 105; see People v. 

Hillhouse (2002) 27 Cal.4th 469, 497 [witness’s credibility was for the jury to 

determine, not an appellate court].) Although Dale testified it was his idea to 

go to the bank and that could support an inference he voluntarily drove to the 

ATM, a reviewing court is not permitted to reverse “simply because the facts 

could be reconciled with a finding of innocence.” (People v. Arias (2011) 193 

Cal.App.4th 1428, 1436 (Arias) [in kidnapping case, victim’s fear “caused him 

to be a very reluctant witness,” and court reasoned that, although jury could 

have concluded the victim “simply walked away from defendant and 

defendant followed [him] to his apartment for a friendly chat,” the jury also 

could have found the opposite, requiring the court to affirm].) 

Jimenez next complains that pushing Dale to the garage floor and 

trying to tie him up with duct tape was “wholly inconsistent” with compelling 

Dale to go to the bank. But the prosecution argued that Jimenez changed his 

plan when he realized he would not be able to get Dale into the truck or have 

Dale get the money from the ATM if he was tied up. The prosecution argued 

the jury should conclude that Jimenez instead decided to get Dale into the 

truck and hold a knife to Dale’s neck to make sure that Dale complied. 

Because the prosecution covered this point in closing, the jury clearly rejected 
13

the inference that Jimenez advocates here. (See Arias, supra, 193 

Cal.App.4th at p. 1436; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin)

[reversal on a substantial evidence ground “is unwarranted unless it appears 

‘that upon no hypothesis whatever is there sufficient substantial evidence to 

support [the conviction].’ ”].) As the reviewing court on appeal, we “must 

accept logical inferences”—like this one—“that the jury might have drawn 

from the circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 

396.) 

Moreover, even assuming Dale voluntarily proposed going to the ATM 

to get the money Jimenez wanted, there was sufficient evidence from which 

the jury could find that any initial cooperation on Dale’s part vanished the 

moment Jimenez held and slapped a knife to Dale’s neck and grabbed Dale 

by the hair as Dale drove to the bank. Dale testified Jimenez finally put 

down the knife only after Dale handed him the money. Thus, the jury could 

reasonably find that Jimenez prevented Dale from leaving the truck before 

obtaining the money. Put another way, there was ample evidence from which 

the jury could find that Jimenez’s use of physical force “vitiated any initial 

voluntariness, converting the encounter into one in which [Dale] was being 

transported against [his] will” sufficient to support Jimenez’s kidnapping 

conviction. (People v. Hovarter (2008) 44 Cal.4th 983, 1018; People v. Camden

(1976) 16 Cal.3d 808, 814 [concluding that victim was prevented from leaving 

the car because of the high rate of speed at which it was being driven and 

confirming the rule that “ ‘[w]here the victim has at first willingly 

accompanied the accused, the latter may nevertheless be guilty of 

kidnap[p]ing if he subsequently restrains his victim’s liberty by force and 

compels the victim to accompany him further’ ”].)
14

Jimenez further asserts the record lacks evidence showing that Dale’s 

liberty was ever restrained, such as evidence that Jimenez denied a request 

by Dale to exit the truck. Jimenez argues that, for this reason, the evidence 

could only show Dale consented to driving to the bank and that Jimenez 

never “substituted his will” for Dale’s. But as we have already discussed, this

was not the only conclusion the jury could reasonably draw from the 

evidence, and the jury was entitled to reject it. (See Arias, supra, 193 

Cal.App.4th at p. 1436; Bolin, supra, 18 Cal.4th at p. 331.) Dale was not 

required to test Jimenez’s resolve—i.e., by asking for permission to stop 

driving or to get out of the truck—while Jimenez was holding a knife to his 

throat. (See, e.g., People v. Power (2008) 159 Cal.App.4th 126, 137 [threat 

that victim’s family would be harmed if victim did not have sex with 

defendant was sufficient to establish fear required for kidnapping; although 

victim might have gone to police or refused to comply, she was not required to 

“test” the kidnapper to see if he was bluffing].) 

Jimenez’s reliance on People v. Stephenson (1974) 10 Cal.3d 652 does 

not require a different conclusion. In Stephenson, the victims voluntarily got 

into the defendant’s car when he offered to drive them to their destinations, 

and the defendant later robbed them. Contrary to the present case, the Court 

of Appeal in Stephenson reasoned the victims “were enticed . . . by deceit or 

fraud” to get into the defendant’s vehicle, and thus, there could be no 

kidnapping because the victims were not “forcibly require[d] . . . to enter his 

car.” (Id. at pp. 659−660.) But Jimenez did not use fraud or deceit to fool 

Dale into getting into his truck and driving them to the bank. Rather,

Jimenez and Dale both understood they were going to the bank to get the 

money Jimenez wanted—only after Jimenez yelled at, beat, scalped, cut, and 

tried to tie up Dale. This was not consent under Stephenson. (See La Salle, 
15

supra, 103 Cal.App.3d at pp. 145−146 [no consent and no mere inducement 

by fraud or deceit where defendant told mother that if she wanted her child 

back, she would have to get in defendant’s car where the child was being 

held].) 

In sum, we conclude on the record before us that Jimenez has not 

carried his “ ‘enormous burden’ ” of demonstrating insufficient evidence to 

require reversal of his conviction on the aggravated kidnapping charge. 

(People v. Thomas (2017) 15 Cal.App.5th 1063, 1071.) 

DISPOSITION

The judgment is affirmed. 

DO, J.

WE CONCUR:

McCONNELL, P. J.

HUFFMAN, J.