The opinion
Filed 4/21/26 P. v. Jimenez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B339174
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA505081)
v.
PEDRO JIMENEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Alison S. Matsumoto, Judge. Reversed and
remanded with directions.
Theresa Osterman Stevenson, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles G. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield, Supervising
Deputy Attorney General, and Chelsea Zaragoza, Deputy
Attorney General, for Plaintiff and Respondent.
______________________________
Pedro Jimenez appeals from the judgment of conviction
entered after a jury found him guilty of committing seven sex
offenses against 11-year-old M.C. The trial court sentenced
Jimenez to 72 years to life in state prison. Jimenez’s sole
contention on appeal is that the court erred by imposing
consecutive terms on counts 1 through 3 because the underlying
offenses did not occur on separate occasions under Penal Code
section 667.6, subdivision (d),1 and the court did not make
findings on whether it was exercising its discretion to impose a
consecutive sentence. We reverse and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial2
In 2016 M.C. lived with her mother, Ana Maria C., and her
brother A.C., who was about one year younger than M.C.
Jimenez began dating Ana Maria in 2015 or 2016. When Ana
Maria became pregnant with Jimenez’s child, the family moved
in with Jimenez, and they lived in a two-bedroom house.
M.C. was 17 years old when she testified at trial. She
described the events that took place in December 2017, when she
was 11 years old. On the night of Christmas Eve, M.C. and A.C.
went to sleep in the bedroom they shared, which had a bunk bed.
1 Further statutory references are to the Penal Code.
2 We discuss the facts relevant to Jimenez’s sexual conduct
on Christmas Eve 2017, which was the subject of counts 1
through 3. Jimenez was convicted on four other counts involving
sex offenses he committed against M.C. on later dates.
2
M.C. slept on the bottom bunk, and A.C. slept on the floor due to
an arm injury. At some point, Jimenez came into the room with
his cell phone flashlight on, “check[ed] on” A.C., and lay down on
M.C.’s bed.
Jimenez began playing with and smelling M.C.’s hair and
rubbing her shoulders and arms. He then moved his hand down
M.C.’s arm and stomach and began touching her underneath her
clothes. When he touched M.C.’s breasts, M.C. moved his hands
away, and Jimenez “backed up a little bit” and returned to
playing with and smelling M.C.’s hair and touching her
shoulders.
Jimenez then got on top of M.C., and she began to cry.
Jimenez took a pocketknife from his pocket, put it to M.C.’s face,
and threatened to hurt Ana Maria and her brother if M.C. made
any noise. M.C. “went numb . . . with the knife on [her] mouth,”
and Jimenez moved the knife down her body to her stomach in an
“‘S,’ back-and-forth type of motion.”
Jimenez ripped off M.C.’s shirt and bra and kissed and
licked her neck and breasts. He tried taking M.C.’s shorts off,
but he was on top of M.S. and was “having a hard time,” so M.C.
helped him pull her shorts down. M.C. took off her underwear at
Jimenez’s request. Jimenez touched M.C.’s legs, breasts, and
neck, and inserted his fingers into her vagina four or five times.
Jimenez then licked M.C.’s vagina and inserted his penis into her
vagina about three times. Jimenez moved M.C. onto her stomach
and inserted his penis into her anus two or three times.
At that point, A.C. woke up, and Jimenez got off M.C. and
lay next to her on the bed. A.C. turned on the bedroom lights and
went to the bathroom. After A.C. returned, turned the lights off,
and went back to sleep on the floor, Jimenez “waited for a few
3
minutes” then began touching M.C.’s hair and breasts again.
Jimenez next inserted his fingers into M.C.’s vagina and licked
her vagina. When A.C. moved again, Jimenez stopped, waited a
few minutes, and left the room.
A.C. testified that M.C.’s crying woke him up that night,
and he saw Jimenez on top of her. It appeared as if Jimenez was
not wearing pants, but A.C. did not get a close look. A.C.
“decided to ignore it” and went back to sleep because he did not
know if he was “seeing things.”
On April 30, 2022, after M.C.’s cousin Jordy C. asked her
what had happened with Jimenez, M.C. told Ana Maria and
other family members that Jimenez was sexually abusing her.
Ana Maria instructed her sister-in-law to call the police, and
later that night M.C. told a law enforcement officer about the
Christmas Eve incident.
At trial, the parties stipulated that Jimenez was born in
August 1988; he therefore was 29 years old at the time of the
2017 Christmas Eve incident and 35 years old at the time of trial.
The defense did not call any witnesses.
B. The Verdict and Sentencing
The jury found Jimenez guilty on all seven counts charged.
As relevant here, the jury found Jimenez guilty of aggravated
sexual assault of a child under 14 years old—oral copulation
(§ 269, subd. (a)(4); count 1);3 aggravated sexual assault of a child
3 The verdict form stated count 1 was for aggravated sexual
assault of a child - oral copulation, but it incorrectly stated the
offense was for a violation of section 269, subd. (c) (instead of
subdivision (a)(4)). At the sentencing hearing the trial court
determined, without objection, that this was a technical error,
4
under 14 years old—rape (id., subd. (a)(1); count 2); and forcible
lewd or lascivious act upon a child under 14 years old (§ 288,
subd. (b)(1); count 3). As to count 3, the jury found true the
special allegation that in the commission of the crime Jimenez
personally used a dangerous or deadly weapon (a knife) within
the meaning of section 667.61, subdivisions (b) and (e). In a
bifurcated proceeding, the jury found true as to counts 4
through 7 the aggravating factors that M.C. was particularly
vulnerable (Cal. Rules of Court, rule 4.421(a)(3)) and that
Jimenez took advantage of a position of trust or confidence to
commit the offenses (rule 4.421(a)(11)).
The People argued in their sentencing memorandum that
the trial court should impose consecutive terms of 15 years to life
on counts 1 (oral copulation) and 2 (rape) because the crimes
involved the same victim on separate occasions under sections
269, subdivision (c), and 667.6, subdivision (d). With respect to
count 3 (forcible lewd acts, including touching and digital and
anal penetration), the People argued the court should impose an
additional consecutive term of 15 years to life either as a
mandatory sentence under section 667.6, subdivision (d) (because
the acts were committed on a separate occasion) or a
discretionary sentence under section 667.6, subdivision (c).
Jimenez argued the court should impose concurrent terms on
counts 1 through 3 because the underlying acts did not take place
on separate occasions.
and the court construed the verdict form to reflect a conviction
under section 269, subdivision (a)(4). (See People v. Mackabee
(1989) 214 Cal.App.3d 1250, 1256.)
5
At the June 11, 2024 sentencing hearing, the parties
submitted on their briefs. The trial court stated it had considered
the parties’ sentencing memoranda, witness testimony, and
factors in aggravation and mitigation under California Rules of
Court, rules 4.421 and 4.423. On count 1 for violation of
section 269, subdivision (a)(4), the court imposed a term of
15 years to life as the base term. On count 2 for violation of
section 269, subdivision (a)(1), the court imposed a consecutive
term of 15 years to life, stating “[t]hat is required to be
consecutive.” On count 3 for violation of section 288,
subdivision (b)(1), the court imposed a consecutive term of
15 years to life under section 667.61, subdivisions (b) and (e),
based on the true finding on the special allegation for personal
use of a knife, stating “[t]hat is consecutive” (with no further
explanation). On counts 4 and 7, the court imposed the upper
terms of 16 and 11 years, respectively.4 The court stated it was
imposing consecutive terms under section 667.6, subdivision (d),
because “the crime[s] . . . involved the same victim on a separate
occasion.” The court imposed concurrent middle terms of two
years on counts 5 and 6. The court sentenced Jimenez to an
aggregate sentence of 72 years to life.
Jimenez timely appealed.
4 In imposing the upper terms on counts 4 and 7, the trial
court noted the jury found true two aggravating factors under
California Rules of Court, rule 4.421(a). The court also noted
Jimenez’s lack of a prior record as a mitigating factor. (Id.,
rule 4.423(b)(1).)
6
DISCUSSION
A. Governing Law and Standard of Review
Section 669, subdivision (a), provides that when a person is
convicted of two or more crimes, the trial court must determine
“whether the terms of imprisonment . . . shall run concurrently or
consecutively.” “For certain sex offenses, . . . the Penal Code
establishes . . . alternative sentencing frameworks,” including
section 667.6. (People v. Catarino (2023) 14 Cal.5th 748, 752.)
Under section 667.6, subdivision (c), “a full, separate, and
consecutive term may be imposed for each violation of an offense
specified in subdivision (e) if the crimes involve the same victim
on the same occasion.” (Italics added.) Section 667.6,
subdivision (d)(1), provides a “full, separate, and consecutive
term shall be imposed for each violation of an offense specified in
subdivision (e) if the crimes involve separate victims or involve
the same victim on separate occasions.” (Italics added.) As we
will discuss, it is a reasonable inference that the trial court
sentenced Jimenez under section 667.6, subdivision (d), for his
convictions under section 269, subdivision (a)(4) (count 1) and
(a)(1) (count 2). Although section 269 is not listed in section
667.6, subdivision (e), section 269, subdivision (c), provides “[t]he
court shall impose a consecutive sentence for each offense that
results in a conviction on this section if the crimes . . . involve the
same victim on separate occasions as defined in subdivision (d) of
Section 667.6.”
The one strike law in section 667.61 provides an alternative
sentencing scheme for certain forcible sex offenses and
“‘mandates an indeterminate sentence of 15 or 25 years to life in
prison when the jury has convicted the defendant of a specified
7
felony sex crime [citation] and has also found certain factual
allegations to be true.’” (People v. Carbajal (2013) 56 Cal.4th 521,
534.) Section 667.61, subdivision (c), lists the qualifying offenses,
including in subdivision (c)(4), a “[l]ewd or lascivious act, in
violation of subdivision (b) of Section 288.” Section 667.61,
subdivision (e)(3), provides as a qualifying special circumstance
that “[t]he defendant personally used a dangerous or deadly
weapon or a firearm in the commission of the present offense.”
This sentencing provision applied to count 3 because Jimenez
was convicted of a qualifying offense (lewd or lascivious acts
under section 288) with a qualifying special circumstance (use of
a knife). Under section 667.61, subdivision (i), for qualifying
offenses listed in subdivision (c), “the court shall impose a
consecutive sentence for each offense that results in a conviction
under this section if the crimes involve . . . the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.”
“In determining whether crimes against a single victim
were committed on separate occasions under [section 667.6,
subdivision (d)], the court shall consider whether, between the
commission of one sex crime and another, the defendant had a
reasonable opportunity to reflect upon the defendant’s actions
and nevertheless resumed sexually assaultive behavior. Neither
the duration of time between crimes, nor whether or not the
defendant lost or abandoned the opportunity to attack, shall be,
in and of itself, determinative on the issue of whether the crimes
in question occurred on separate occasions.” (§ 667.6,
subd. (d)(2).) Further, a finding that a defendant committed sex
crimes on separate occasions does not require there be “a break of
any specific duration or any change in physical location.” (People
8
v. Jones (2001) 25 Cal.4th 98, 104; accord, People v. King (2010)
183 Cal.App.4th 1281, 1325.)
“In applying this standard, courts have held . . . the
offenses of placing a finger in the victim’s vagina, kissing her
genitals and then placing his penis in her vagina were but a
single occasion.” (People v. Dearborne (2019) 34 Cal.App.5th 250,
265-266, citing People v. Corona (1988) 206 Cal.App.3d 13, 15-16,
17-18.) “In contrast, where the offenses are interrupted by the
defendant’s nonsexual activity,” courts have found “they occur on
a separate occasion.” (Dearborne, at p. 266 [citing cases]; see
Corona, at pp. 17-18.)
“‘“Defendants are entitled to sentencing decisions made in
the exercise of the ‘informed discretion’ of the sentencing court.”’”
(People v. Salazar (2023) 15 Cal.5th 416, 424; accord, People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.) “‘A court which is
unaware of the scope of its discretionary powers can no more
exercise that “informed discretion” than one whose sentence is or
may have been based on misinformation regarding a material
aspect of a defendant’s record.’ [Citation.] In such
circumstances, we have held that the appropriate remedy is to
remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even
if it had been aware that it had such discretion.’” (Gutierrez, at
p 1391; accord, Salazar, at p. 419.)
When a trial court imposes consecutive sentences based on
a finding under section 667.6, subdivision (d), we may reverse
only if there is no substantial evidence that the offenses were
committed on separate occasions, that is, “‘only if no reasonable
trier of fact could have decided the defendant had a reasonable
opportunity for reflection after completing an offense before
9
resuming his assaultive behavior.’” (People v. King (2010)
183 Cal.App.4th 1281, 1325; accord, People v. Garza (2003)
107 Cal.App.4th 1081, 1092.)
B. Remand Is Required for the Trial Court To Resentence
Jimenez on Counts 1 through 3
Jimenez contends the trial court did not understand it had
discretion to impose concurrent sentences on counts 1 through 3,
and further, substantial evidence did not support a finding that
counts 1 through 3 occurred on separate occasions, as defined
under section 667.6, subdivision (d), for purposes of imposing
consecutive sentences under sections 269, subdivision (c), and
667.61, subdivision (i). We agree with Jimenez’s second
contention.
The trial court was aware of its discretion. “‘The general
rule is that a trial court is presumed to have been aware of and
followed the applicable law.’” (People v. Shiga (2016)
6 Cal.App.5th 22, 40; accord, People v. Brown (2007)
147 Cal.App.4th 1213, 1229.) As discussed, the parties’
sentencing memoranda made clear the court had discretion to
impose concurrent or consecutive sentences if it determined that
Jimenez’s acts on counts 1 through 3 did not occur on separate
occasions. At the sentencing hearing, the court stated it reviewed
these memoranda. Further, in sentencing Jimenez on counts 4
and 7, the court addressed whether those crimes “involved the
same victim on a separate occasion” under section 667.6,
subdivision (d) (finding they did), and as to counts 5 and 6, the
court imposed concurrent sentences. In addition, with respect to
counts 1 and 2, we imply a finding that the court, in stating it
10
was “required” to impose consecutive terms, determined that
counts 1 and 2 occurred on separate occasions.
The trial court’s implied finding as to counts 1 (for oral
copulation) and 2 (for rape) is supported by substantial evidence.
Jimenez raped M.C. before A.C. woke up, turned on the bedroom
lights, and went to the bathroom. During the period while A.C.
was in the bathroom, Jimenez stopped sexually assaulting M.C.,
got off her, and lay next to her on the bed. After A.C. returned
and turned off the lights, Jimenez “waited for a few minutes”
before continuing to assault M.C., including orally copulating her.
On these facts, a reasonable trier of fact could have concluded
that Jimenez had a reasonable opportunity to reflect on his
actions while A.C. was in the bathroom, before Jimenez again
sexually assaulted M.C. (See People v. King, supra,
183 Cal.App.4th at p. 1325 [affirming separate occasion finding
where defendant “momentarily paused to look around” between
separate instances of digitally penetrating a victim]; People v.
Corona, supra, 206 Cal.App.3d at pp. 17-18 [second rape of victim
in a car was on separate occasion where defendant raped victim,
left the car for five minutes, then raped her again].)
With respect to count 3, however, the Attorney General
concedes that the acts constituting forcible lewd acts necessarily
occurred on the same occasion as the rape charged in count 2. In
her closing argument and sentencing memorandum, the
prosecutor argued Jimenez’s touching, anal penetration, and
digital penetration of M.C. were forcible lewd acts supporting
count 3, all of which, along with use of the knife alleged as to
count 3, occurred during the same sequence of events as the rape,
11
that is, before A.C. woke up and went to the bathroom.5
Accordingly, section 667.61, subdivision (i), requiring consecutive
sentences for acts occurring on separate occasions (as defined in
section 667.6, subdivision (d)) did not apply.
The Attorney General argues we nevertheless should affirm
because the trial court, in imposing a consecutive sentence on
count 3, properly exercised its discretion under section 667.6,
subdivision (c). Sections 667.6, subdivision (c), applies to
sentencing for a lewd or lascivious act under section 288,
subdivision (b), because the offense is listed as a qualifying
offense in section 667.6, subdivision (e)(5). Jimenez does not
dispute that the court had discretion to impose a consecutive
term on count 3 under section 667.6, subdivision (c), instead
arguing it was not required to do so.
Regardless of whether section 667.6, subdivision (c), applies
to sentencing for a one strike offense under section 667.61 (which
is not clear), under section 669, “[a] trial court has discretion to
impose concurrent or consecutive sentences when a defendant is
convicted of multiple crimes with indeterminate sentences.”
(People v. Midell (2025) 113 Cal.App.5th 1060, 1085; accord,
People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262; see § 669,
subd. (a) [“Life sentences, whether with or without the possibility
of parole, may be imposed to run consecutively with one another,
with any term imposed for applicable enhancements, or with any
5 The Attorney General notes that the touching and digital
penetration after A.C. returned from the bathroom could have
constituted forcible lewd acts to support count 3. But, as the
Attorney General concedes, even if count 3 was based on acts
occurring after the bathroom interruption, they would have
occurred on the same occasion as count 1 (oral copulation).
12
other term of imprisonment for a felony conviction.” In exercising
its discretion whether to impose concurrent or consecutive
indeterminate sentences, courts should consider the factors in
California Rules of Court, rule 4.425(a). (Midell, at p. 1085;
Rodriguez, at p. 1262 [“In exercising its discretion whether to
impose concurrent or consecutive terms, a trial court should
consider the factors set forth in California Rules of Court, rule
4.425.”]; see People v. Osband (1996) 13 Cal.4th 622, 729 [“‘It is
well settled that in making sentencing choices pursuant to
section 667.6, subdivision (c), . . . the trial court must state a
reason for imposing a consecutive sentence in deciding whether to
impose a consecutive or concurrent sentence.’”]; Cal. Rules of
Court, rule 4.425 [“[f]actors affecting concurrent or consecutive
sentences”].)
The Attorney General contends the trial court stated its
reasons for imposing a consecutive sentence on count 3 because
the court identified five aggravating factors set forth in California
Rules of Court, rule 4.421(a), two of which the jury found true
with respect to counts 4 through 7 (that Jimenez took advantage
of a position of trust or confidence and M.C. was vulnerable).
However, the court listed the aggravating factors before it
sentenced Jimenez on each count, and it did not reference the
aggravating factors in stating as to count 3 that the 15-years-to-
life term “is consecutive.” The court did not cite the aggravating
factors again until it sentenced Jimenez on count 4, finding the
aggravating factors supported imposition of the upper term.
In the absence of a statement of reasons—or any reasoning
for imposing a consecutive sentence on count 3—we cannot tell
whether the trial court was exercising its discretion to impose a
consecutive sentence. We therefore reverse the sentence and
13
remand for a full resentencing.6 On remand, the trial court must
provide a statement of reasons for imposing consecutive or
concurrent sentences on counts 1, 2, and 3, in addition to the
reasons for its sentencing on the remaining counts, including its
basis for any finding that certain acts were committed on
separate occasions.
DISPOSITION
The convictions are affirmed. We vacate the sentence and
remand for a full resentencing consistent with sections 269,
subdivision (c), 667.6, subdivisions (c) and (d), and 667.61,
subdivision (i).
FEUER, J.
We concur:
SEGAL, Acting P. J.
STONE, J.
6 Although we imply a finding by the trial court that the acts
supporting counts 1 and 2 occurred on separate occasions, and
that substantial evidence supports that finding, because we are
remanding for a full resentencing, the court must determine in
the first instance whether to impose consecutive or concurrent
terms on those counts (and explain its decision).
14