Modification: People v. Jimenez

THE PEOPLE,

Plaintiff and Respondent,

v.

ENRIQUE MAYORGA JIMENEZ,

Defendant and Appellant.

E074849

(Super.Ct.No. 16CR021449)

California Court of Appeal

Fourth Appellate District

Division Two

Filed January 11, 2022

ORDER DENYING PETITION FOR REHEARING AND MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT

The petition for rehearing filed on December 29, 2021 is DENIED.

The majority opinion filed in this matter on December 14, 2021, and modified on December 16, 2021, is further MODIFIED as follows.

On page 13, line 17, after the words, "'I just figured I was just going to take the rap for everything . . . ,'" insert as new footnote 4:

^{4 4} The record provided to us by the parties included a transcript of the interrogation, but not the video of it. After we filed our opinion, the People asked us, in a petition for rehearing, "to review the video and reconsider and modify [our] opinion in light of the contents of the video." At the same time, they made a belated request for transmission of the original video, and they gave us what they represented to be a copy of it.

In the interest of ensuring that the appeal is decided based on a full record, we have viewed the video. We find nothing in it that adds anything relevant to the transcript or that affects our analysis. It still shows that it was only after Detective Munoz threatened to charge his sons with homicide that defendant showed eagerness to cooperate and began to implicate himself in a crime. We will retain the original video until we issue our remittitur (see Cal. Rules of Court, rule 8.224(d)), so it will be available to a higher court.

All subsequent footnotes are renumbered accordingly.

The dissenting justice is making the following modification to the dissent:

On page 16 of the dissent, at the end of the last full paragraph, which ends with the words "force anybody to say what they said," insert as new footnote 6:

⁶ In their rehearing petition, the People asked us to view the video of the confession. Consistent with Jimenez's trial lawyer's view, as well as that of the People, the video generally shows about an hour-and-a-half of an attentive, soothing officer questioning a voluble, obliging suspect.

About 45 seconds into the interview---while Munoz was removing Jimenez's handcuffs and before Munoz had even sat down---Jimenez declared that his sons did not know anything about what was going on. About a minute later, Jimenez interrupted Munoz to state that he told his sons to get out of the car because they had nothing to do with the crime. These interjections, coming before Munoz's statement that concerns the majority, are among the video's displays of Jimenez's eagerness to talk to clear his sons.

Indeed, the People argued that the "nonverbal aspects of the video . . . so clearly show a lack of coercion [that] they may well explain counsel's failure to object," and that the lack of objection "deprived the People of the opportunity to rely on these nonverbal aspects" to litigate voluntariness. They argued that the video showed Jimenez eager to speak to Munoz; that Munoz did not raise his voice, speak harshly, or "present himself as intimidating or angry"; that Munoz took off Jimenez's handcuffs immediately upon entering the room; that Jimenez did not appear scared, intimidated, or frustrated; and that his body language did not communicate coercion. The People said that if the issue were litigated in trial court, they would rely on "the flow of the interview, [Jimenez's] body language, observable signs of [Jimenez's] physical or mental condition, the positioning of [Jimenez] and Detective Munoz, and the parties' demeanor, tone, and inflection." They argued that the video shows Jimenez's "age, mental level, and intelligence" and that he was "articulate," while "nothing in the video [showed] that he was below average in intelligence or particularly susceptible to coercion." Having viewed the video, I agree with the People's interpretation.

Through trial, the defense viewed the video in the same light. Jimenez's trial counsel expressly argued that the video shows Munoz did not overbear Jimenez's will. Jimenez himself testified that he was willing to talk to Munoz and felt comfortable doing so. I find no appropriate basis in the record to disagree. Rather than the majority's de novo reversal of the conviction based on a view of the video disavowed by the defense at trial, the People should have the chance to litigate all the circumstances in trial court (at this point, in conjunction with a habeas petition), including confronting Jimenez with the video if he now wishes to testify that he was coerced.

Except for these modifications, the opinion remains unchanged. This modification does not effect a change in the judgment.

CERTIFIED FOR PARTIAL PUBLICATION

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RAPHAEL

J.