P. v. Jimenez

Filed 7/27/06 P. v. Jimenez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Brian C. Yep, Judge. Affirmed and remanded.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Carlos Alberto Jimenez appeals from a judgment entered upon his convictions by jury of first degree robbery (Pen. Code, § 211, count 1),[1] first degree burglary (§ 459, count 2), carjacking (§ 215, subd. (a), count 3), assault with intent to commit a felony (§ 220, count 4), three counts of forcible rape (§ 261, subd. (a)(2), counts 5, 6 & 7), three counts of forcible oral copulation (§ 288a, subd. (c)(2), counts 10, 11 & 12), sexual penetration by foreign object (§ 289, subd. (a)(1), count 13), attempted forcible rape (§§ 664/261, subd. (a)(2), count 14) and attempted sodomy by use of force (§§ 664/286, subd. (c)(2), count 15). In connection with counts 5 through 7 and 10 through 13, the jury also found to be true the allegation that defendant entered an inhabited dwelling house with the specific intent to steal and permanently take away someone's property, as enumerated in section 667.61, subdivision (b)/(e)(2). Defendant admitted the allegations that he suffered a prior burglary conviction within the meaning of sections 1170.12, subdivisions (a) through (d), 667, subdivisions (b) through (i) and 667, subdivision (a), and that he suffered a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced him to an aggregate determinate state prison term of 87 years plus an indeterminate term of 30 years to life.

Defendant contends that: (1) there was insufficient evidence to support the carjacking conviction; (2) the trial court committed reversible error by failing to instruct sua sponte on theft as a lesser included offense of carjacking; (3) the trial court abused its discretion in denying his Marsden[2] motion; (4) the trial court abused its discretion by allowing defendant to be impeached with an insufficiently â€