Unreported / Non-Citable
Background
Frank Anthony Tony Jimenez was convicted by a jury of eight counts of lewd and lascivious conduct against M.B. and J.J., two counts of forcible lewd and lascivious conduct against M.B., one count of oral copulation against M.B., and one count each for making, possessing and distributing child pornography. He was sentenced to 275 years to life. The victims were young children: M.B. was seven years old at trial, and J.J. was defendant's younger son, who testified about the abuse of M.B. Defendant's older son, John Doe II, separately testified about sexual abuse he suffered decades earlier, from about 1983 to 1989.
On appeal, Jimenez challenged the trial court's failure to instruct the jury on unanimity for the oral copulation charge, the admission of testimony from his adult son John under Evidence Code section 1108, and the sufficiency of the evidence supporting the forcible lewd and lascivious convictions against M.B. He also argued, and the People agreed, that his sentences for oral copulation (count 5) and using a minor as a model for a sexual act (count 12) were unauthorized, though the parties disagreed on whether remand for resentencing was required.
The Court’s Holding
The Court of Appeal held that the trial court did not err in failing to instruct the jury on unanimity for the count 5 oral copulation charge because the prosecutor clearly elected the licking incident as the relevant act for that count in closing argument, and her rebuttal comments about oral copulation related to the count 6 substantial-sexual-conduct enhancement, not count 5. The court also held that the trial court did not abuse its discretion under Evidence Code section 352 in admitting John's testimony about prior uncharged sexual abuse under section 1108, finding the testimony highly probative on the central factual disputes and not too remote despite the 33-to-39-year gap, given the substantial similarities between the prior and charged offenses.
The court further held that sufficient evidence supported the forcible lewd and lascivious convictions against M.B.: pulling down M.B.'s pants and underwear before kissing her bottom went beyond the force necessary to commit the lewd act itself, and the treats, secrecy, and threat of getting in 'big trouble' were sufficient to establish duress for the first touching incident. Finally, the court agreed with the parties that the sentences for counts 5 and 12 were unauthorized — section 667.61's 25-years-to-life term did not apply because defendant was not convicted of oral copulation on more than one victim, and section 647.6(c)(2) did not apply because he was not convicted under section 647.6 — but concluded that remand was unnecessary because the errors could be corrected on appeal, modifying count 5 to 15 years to life and count 12 to the upper term of three years under section 18.
Key Takeaways
- The Court of Appeal modified Jimenez's sentence for count 5, oral copulation under section 288.7(b), from 25 years to life down to 15 years to life, because the section 667.61 enhancement he was sentenced under requires multiple victims and did not apply.
- The court also modified the count 12 sentence from six years to three years, holding that the trial court cited the wrong statute (section 647.6(c)(2)) and failed to exercise informed discretion, but that the record clearly showed it would have imposed the upper term of three years under section 18 anyway.
- The court affirmed the judgment in all other respects, rejecting challenges to the lack of a unanimity instruction, the admission of prior-acts testimony under Evidence Code section 1108, and the sufficiency of the evidence for the forcible lewd acts convictions.
- The court held that no unanimity instruction was required for the oral copulation count because the prosecutor elected the licking incident as the basis for count 5 in closing argument, and her rebuttal comments concerned the count 6 enhancement.
- The court found no abuse of discretion in admitting the older son John's testimony about decades-old abuse, concluding it was highly probative and that its remoteness was outweighed by its similarity to the charged offenses.
Why It Matters
This unpublished decision illustrates how appellate courts can correct unauthorized sentences directly on appeal when the error presents a pure question of law, avoiding a remand where the record clearly shows the trial court would have reached the same result with proper sentencing discretion. It also reaffirms the broad discretion trial courts have under Evidence Code section 1108 to admit prior sexual offense evidence in child molestation prosecutions, even when the prior acts occurred decades earlier and the witness cannot recall specific details.
The opinion underscores the deferential substantial-evidence standard in reviewing forcible lewd act convictions, particularly where duress is shown through psychological coercion such as secrecy, treats, and threats directed at a very young child who depended on the defendant for daily care.