P. v. Jimenez
Filed 3/15/06 P. v. Jimenez CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
THIRD APPELLATE DISTRICT
(Sacramento)
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| THE PEOPLE, Plaintiff and Respondent, v. CHARLES GUADALUPE JIMENEZ, SR., Defendant and Appellant. | C046259
(Super. Ct. No. 01F04752)
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Unable to agree on the veracity of a rebellious adolescent, her scorned mother, or an admitted child molester, the jury failed to reach verdicts on seven of eight counts of various sexual improprieties. It convicted defendant Charles Guadalupe Jimenez, Sr., of one count of molesting or annoying 15-year-old J. based solely on a taped conversation in which he asked her whether he was the first guy she had ever seen. (Pen. Code, § 647.6, subd. (a).)[1] Defendant testified the question referred to an occasion in which J. had walked into the bathroom as he was stepping into the shower. On this record, we must reverse for insufficiency of the evidence to sustain the conviction.
FACTS
Defendant was charged with five counts of molesting or annoying a child under the age of 18 (§ 647.6), two counts of lewd exposure (§ 314, subd. 1), one count of attempted lewd exposure (§§ 664/314, subd. 1), and two prior strike convictions (§§ 1192.7, subd. (c), 667, subds. (b)-(i), 1170.12). Because the jury was unable to reach a verdict on all but one count, we set forth the facts relevant only to that count.[2] The prosecution argued to the jury that the factual predicate for count two consisted of the tape recording of a conversation between J. and defendant. The Attorney General concedes that the conversation constituted the factual basis for count two.
We provide a brief factual context for the making of the tape. Defendant lived with his niece in a house next door to J., her mother, and her younger siblings. Beginning in September or October 2000, defendant had sexual intercourse with J.'s mother a couple of times a week, although he was also romantically involved with Mariann Fagunes and had been since 1999. Eventually he moved into the family's garage and spent time with the children, some of whom called him â€
