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The People v. Tony Ximenez

January 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
TONY XIMENEZ, DEFENDANT AND APPELLANT.



(Super. Ct. No. 08F06980)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Ximenez

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant, Tony Ximenez, appeals his convictions for sexual penetration with a foreign object, corporal injury against a former cohabitant and four counts of violating a restraining order, claiming the trial court abused its discretion in admitting remote acts of domestic violence under Evidence Code section 1109.*fn1 Finding no prejudicial error, we affirm.

FACTUAL BACKGROUND

Defendant and his girlfriend Tina lived together for a few months until June 2008 when they had a physical argument. During the argument, to stop her from going to the store, defendant tried to pull Tina backwards using her arm and hair. He pulled her onto the floor, dragged her into the house and threw her on the ground. Tina sought medical treatment after the fight and advised the emergency room staff she had been assaulted by her boyfriend. At the hospital, she was cradling her arm and had a large, dark bruise and a four inch scratch on her arm and two and one-half inch scratch below her eye. Tina gave a statement to police and obtained a restraining order against defendant. In July and August of 2008, defendant called Tina between five and 10 times to apologize and Tina reported these calls to the police.

On August 14, 2008, Tina took some cold medication and went to bed. She woke up and realized there was "a hand up her shorts" and fingers "inside" her vagina. She saw defendant was in bed with her and screamed "no" and "stop." Defendant did not stop. Tina kept screaming and tried to push defendant off her. After two to three minutes, defendant got up and left. He told her if she called the police, he would hurt her. Tina's aunt, Rosemary, heard the screaming and came over. She saw the front door had been broken in and called the police.

When officers arrived, Tina was wrapped in a blanket, shaking and crying. She seemed to be in shock and very scared. She would not make eye contact and gave monosyllabic answers to questions.

Tina was taken to the medical center for examination. The examination revealed "fresh" injuries, including bruises and abrasions on her labia, an abrasion on her cervix and other bruising and diffuse tenderness consistent with forcible digital penetration. The injuries were not consistent with normal daily female functions. Tina had bruises on her thigh, neck and arm, which she told the examining physician's assistant were from wrestling a few days earlier and were not caused by defendant. When Tina was interviewed by police officers at the hospital, she remained visibly shaken, and was crying and hesitant with her responses. She eventually relayed the details of the assault and identified defendant to the police as her assailant.

A few days later, Tina contacted police and recanted the allegations. She wanted to drop the charges against defendant and informed a detective she had lied and fabricated the sexual assault claim. At trial, she explained she had attempted to recant the accusation because she was scared of defendant and afraid he would hurt her.

Subsequent to the August assault, defendant sent Tina numerous text messages on her cell phone. She believed some of the messages conveyed threats. She reported the messages to the police and gave them her phone.

Mary Palmer, a close friend of defendant's, testified that Tina told her the accusations against defendant were a lie and that she had been seeking revenge against defendant for something he did to her brother. She testified Tina said she and defendant had had consensual sex. Palmer heard Tina say she wanted to meet up with defendant. Palmer testified she also saw Tina text defendant and heard her speak with him on the phone. Palmer heard Tina imply defendant had cheated on her. Palmer initially lied to defense investigators about her knowledge of the case because she did not want to get involved. Defendant's sister gave police a cell phone which contained text messages from Tina to appellant sent in late August 2008.

Tina denied responding to any of defendant's text messages, accusing defendant of cheating on her or being accused of cheating on him. She also denied telling Palmer she had made up the accusations against defendant.

Detective Debra Mello confirmed there was no way to determine who sent the text messages received by Tina, as there were no phone numbers associated with the text messages. The messages were, however, associated with the letter "T", which in Tina's phone contacts, was associated with defendant's phone.

Megan Clark and defendant lived together from June 2008 to January 2009. One night, after defendant stayed out all night, Megan got drunk and in a fit of anger broke glasses and CDs in the bedroom. The next morning when she woke up, defendant was punching her in the arm with a closed fist. He hit her three or four times, causing bruises. A few days ...


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