P. v. Jimenez

 

 

 

 

 

Filed 1/29/07  P. v. Jimenez CA6

 

 

 

NOT
TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 977.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

 

SIXTH
APPELLATE DISTRICT

 

 

THE PEOPLE,   Plaintiff and Respondent,              v.   DENNIS JIMENEZ,   Defendant and Appellant.

H029359      (Santa Clara County       Super.Ct.No. EE301076)

 

            On the evening of June 27, 2002, defendant Dennis Jimenez was at the home of Jose Ramos engaged in a brief conversation, later
described as heated or hostile by family observers.  A few hours later, Ramos
was shot and killed outside his house.  Defendant was eventually charged with
murder, although there were no eyewitnesses and no direct evidence.  Following
his conviction, defendant claims prejudicial trial court errors,
including (1) error in jury selection, (2) error in admission of testimony concerning cell phone records,
and (3) several evidentiary errors. 
We find no errors and affirm the judgment.

STATEMENT OF FACTS

            In the early morning hours of June 28, 2002, Jose Ramos (also known as Mongo) was shot and killed outside his home in Sunnyvale
by a shotgun wound to the face.  On his body, Jose had gang tattoos associated
with a Sunnyvale Norteño gang and his blood tested positive for
methamphetamine.  Fragments of pellets and wadding found on Jose's body came
from a 20-gauge shotgun and a shell estimated to be 10-20 years old.  No
witnesses saw the shooting or any cars or people leaving the scene.  Several
family members and neighbors heard one gunshot.  One neighbor heard a car with
a loud engine drive fast past her house after she heard the gunshot.

            Jose lived in his family home on Santa Susana
Street with many family members, including his mother, several brothers,
their wives or girlfriends and their young children.  Jose stayed in a shed in
the backyard.  He was known to sell and use drugs (methamphetamine and
marijuana).  Jose as well as his brothers Eric Ramos (known as Eddie) and
Sergio Ramos had associations with the Sunnyvale Norteño gang known as Varrio
Via Sol (VVS).

            Many of the Ramos family members and several
neighbors testified that a man known as Dennis (later identified as defendant)
had come to the house to see Jose at least once and possibly twice earlier that
evening.  These witnesses had seen defendant visit Jose several different times
recently, usually staying only briefly.  The details of each witness's
testimony differed from each other and from their first statements to the
police.  But all agreed that defendant, driving a green Cadillac, had visited Jose
that evening.  Most witnesses said the visit was around 10:30 or 11:00 p.m. and that Jose and defendant seemed to be having an argument, with defendant
behaving angrily.[1]

            The police received a 911 call from Sergio Ramos
at 2:19 a.m., but a caller a few minutes earlier identified a possible suspect
as Dennis in a green Cadillac.  Several days later, police were informed that
the green Cadillac was at the home of defendant's brother.  The car was clean
when the police picked it up and it contained no evidence of blood, DNA or
gunshot residue.

            Several people testified to seeing defendant
between the time he left the Ramos house and the time Jose was shot. 
Defendant's former wife Gloria Jimenez testified that about 1 a.m. on June 28, 2002, defendant called her, saying he was on the front porch of her house where he
had stayed some weeks prior.  Defendant said he had a job the next morning and
he wanted to retrieve some tools from her garage where he had stored them. 
Gloria heard the gate close behind defendant about five or 10 minutes after he
went to the garage.  Around 7:00 a.m., Gloria received a phone call from her
sister Margie Serna[2]
who told her that defendant was a suspect in a shooting.  Gloria called their
son John to come over.  When he arrived, she told him the news and they both
cried.  Later that day, when Gloria was not home, the police broke into her
home and searched it.  They had information from defendant's parole officer
that he lived at that address (which was a mile or two from the Ramos home), so
they did a parole search.  When Gloria was interviewed later by the police, she
told them that defendant had kept a gun in their closet in Modesto in 1994. 
She described the weapon as long and said that it opened in the middle to
load.  She asked defendant to get rid of the gun then and she never saw it
again.  She did not see the gun when she packed their belongings in the Modesto
house to move to San Jose while defendant was in prison.

            Vanessa Danilloff, a friend of the Ramos's,
testified that she had been at the Ramos home in the evening and had seen a
person who might have been defendant with Jose.  She described Jose as yelling
at the person in the green Cadillac, but she admitted she was under the
influence of drugs and wasn't sure if the person in the car was defendant (whom
she knew).  Vanessa lived two blocks away from the Ramos house with her mother
Margie Cerna and her brother Anthony, who was involved with gangs as was
Vanessa.  Around 1 a.m., Vanessa walked back to her house.  Around 1:30 p.m., as she was making herself something to eat, defendant knocked on the door and
asked for Anthony.  Defendant was wearing black jeans, a Pendleton shirt and a
black stocking cap--different clothes than the person at the Ramos house had
been wearing.  Vanessa saw a small red car in the driveway.  When defendant
left (without Anthony), she saw him get into the car but she could not tell
which side.  When Vanessa was first interviewed by Detective Tim Ahearn of the
Sunnyvale Public Safety Department soon after the shooting, she told him defendant
got in the passenger side of the red car, which she identified as a red
Plymouth Neon.

            Defendant's son John Jimenez (age 22 at the time
of trial) testified to receiving a phone call from defendant around 2:42 a.m. on June 28.  Defendant said he was at John's mother's house; he loved him and
was okay but could not talk then.  Both men were drug users at that time so
late night calls were not unusual.  In his initial interview with the police,
John did not report this call, but told the police that he had not seen his
father.  John received several phone calls from defendant in the next few days
and he eventually reported this to the police.  John told the police his father
said he was innocent.  At the request of the police, John agreed to make
pretext calls to defendant, but defendant never answered his phone.  John also
remembered his father having a shotgun which opened in the middle, but he had
not seen the gun since the family lived in Modesto 10 years earlier.  In the
afternoon of June 28, John and his cousin went to the home of Ramona Goytia,[3]
where his father had been staying off and on, to pick up defendant's truck and saw.

            Defendant surrendered to the police on July 6
and was held on a parole violation.  He was not charged with Jose's murder
until March 2003.

            In investigating the murder and defendant as a
suspect, the police reviewed defendant's cell phone records during that period
of time.  These records showed phone calls to a cell phone connected to Harvey
Fletcher, who was then on probation for drug possession.  In October 2002, the
police conducted a probation search of Fletcher's trailer home and arrested him. 
The search revealed a bag in the garage with defendant's clothes and cell
phone.  The search also revealed forged documents from a residential drug
treatment program stating that Fletcher was currently in the program.  Olivia
Ruiz, Fletcher's girlfriend, also went to the police station to be interviewed.
 Following a private conversation with Ruiz (secretly taped by the police) about
giving the police information on defendant in exchange for lenient treatment,
Fletcher told the police the following:  in June 2002, defendant had been doing
work on Fletcher's kitchen.  The two were friendly and used drugs together. 
Fletcher knew defendant was involved with Norteños.  Early in the morning of
June 29, defendant arrived at Fletcher's house and stayed for a couple of
nights.  The day before the shooting defendant had told Fletcher that he was
looking for someone who owed him money for marijuana.  (Defendant kept a pound
of marijuana at Fletcher's house.)  When defendant showed up on June 29, he
told Fletcher that the guy who owed him money was dead and that he did not do
it, but he knew who did.  He said he sent three people to get the money owed
and something went wrong.

            According to Fletcher, defendant said he went to
talk to the person who owed him money.  That person said, â€