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People v. Jimenez4/8/2003
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 977.
A jury convicted defendant Albert Jimenez, Jr., of murder (Pen. Code, § 187 -- count I), child abuse (§ 273a, subd. (a) -- count II), and assault on a child by force likely to produce great bodily injury resulting in death (§ 273ab -- count III) in the death of his girlfriend's 13-month-old daughter Kylie. The jury also found that defendant inflicted great bodily injury and corporal injury resulting in death in the commission of count II.
The court sentenced defendant to state prison for 53 years to life. It selected count III, violation of section 273ab, as the principal sentencing offense, doubled statutory sentence of 25 years to life pursuant to the Three Strikes Law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(e)), and added three years for the section 667.5, subdivision (a) enhancement for a total sentence of 53 years to life. The court sentenced defendant to an indeterminate term of 30 years to life in count I, but stayed execution of that sentence pursuant to section 654. It also stayed execution of the sentence imposed in count II -- the middle terms of eight years, plus five years for the section 12022.7, subdivision (d) enhancement.
On appeal, defendant argues he is entitled to reversal because the court erroneously admitted evidence of a prior child abuse offense, and failed to instruct the jury on his theory of involuntary manslaughter. With respect to sentencing, he contends that a sentence of 25 years to life for violation of section 273ab is cruel and unusual punishment, and argues he should have received presentence conduct credits. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant lived with his girlfriend, Michelle Fernhoff, and helped care for Fernhoff's 13-month-old daughter Kylie when she was at work. He had lost his job about two weeks before the April 3, 2001, incident that led to the criminal charges against him. Fernhoff went home from work that morning after receiving a telephone call that something was wrong with Kylie. About two minutes later, co-worker Angela Howard answered a call from defendant asking if Fernhoff was there. Howard replied that she had already left, and asked about Kylie. Defendant said Kylie was choking and not breathing.
Nevada County Sheriff's Deputy David Lade arrived at Fernhoff's apartment to find her administering cardiopulmonary resuscitation (CPR) to Kylie. Lade checked Kylie and detected no pulse and no respiration. He administered a back blow to dislodge anything that might have been in her throat, and took over CPR. Defendant reported that Kylie had choked on a Munch'em cracker. He said he performed the Heimlich maneuver, and Kylie had coughed up a piece of cracker and a small amount of brown liquid. However, emergency personnel found nothing in Kylie's airway or mouth. Nor was there evidence of cracker crumbs on Michelle's carpet.
Kylie was in cardiac arrest and still not breathing when the ambulance left for Tahoe Forest Hospital. At the emergency room, Kylie's heart started beating 20 times a minute, her blood pressure rose to 70, but she was unable to breathe on her own. Because there were signs of life, the emergency room doctor transferred Kylie to Washoe Medical Center in Reno. Pediatric intensive care physician Steven Shane treated Kylie in Reno. He pronounced her brain dead the following day, and removed life su
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