People v. Cruz CA3 ( 2023 )

Filed 1/20/23 P. v. Cruz 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C096019
Plaintiff and Respondent, (Super. Ct. No. 18FE001971)
v.
MIGUEL ANGEL PINEDA CRUZ,
Defendant and Appellant.
Defendant Miguel Angel Pineda Cruz appeals from the trial court’s March 2022
order denying his motion to correct an unauthorized sentence, made while his original
appeal of his convictions was still pending. His appointed counsel has asked this court to
conduct an independent review of the record to determine whether there are any arguable
issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Counsel advised defendant
of his right to file a supplemental brief, and he filed a letter brief raising multiple issues.
We will affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
A detailed recitation of the underlying facts and procedural history is set forth in
our prior opinion in this case. (People v. Cruz (Apr. 29, 2022, C092435) [nonpub. opn.].)
In sum, Maria E., who had been defendant’s romantic partner for 13 years, left him in
November 2017. In response, defendant sent Maria E. text messages threatening to kill
her and members of her family. Maria E. believed defendant’s threats and was afraid. In
January 2018, Maria E. and a friend went to defendant’s home to retrieve some of her
belongings. Defendant grew upset, pointed a gun at Maria E.’s head, rammed the tip of
the gun into her forehead, and threatened to kill her and her friend. With defendant’s
consent, police officers subsequently searched the home and a detached garage behind
the home and found a gun and methamphetamine.
Based on the text messages to Maria E. in November 2017, a jury found defendant
guilty of criminal threats (Pen. Code, § 422; count one),1 and, based on the January 2018
incident, criminal threats (§ 422; count three), assault with a firearm (§ 245, subd. (b);
count two), domestic violence (§ 273.5, subd. (a); count four), possession of a firearm by
a felon (§ 29800, subd. (a)(1); count five), and methamphetamine possession (Health &
Saf. Code, § 11377, subd. (a); count six). The jury also found true that defendant
personally used a firearm in committing counts two and three. (§ 12022.5, subd. (a).)
In July 2020, the trial court sentenced defendant to state prison for an aggregate
term of 11 years four months as follows: (1) the middle term of six years for the assault
count (count two), plus the middle term of four years for the firearm enhancement; (2)
eight months consecutive for the text message criminal threats (count one); (3) two years
consecutive for the criminal threats on January 30, 2018 (count three), plus four years for
the firearm enhancement, stayed pursuant to section 654; (4) the middle term of three
1 Undesignated statutory references are to the Penal Code.
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years consecutive for the domestic violence count (count four), stayed pursuant to section
654; (5) eight months consecutive for firearm possession (count five); and (6) no
additional time for the methamphetamine possession (count six). Citing People v. Jones
(2002) 103 Cal.App.4th 1139, the trial court denied defendant’s request to stay the
sentence on count five (possession of a firearm by a felon) pursuant to section 654,
reasoning that defendant’s act of brandishing the firearm to the victim and pointing it at
her head was separate and independent of the use of the firearm to strike the victim.
In his original appeal, defendant argued (1) the trial court erroneously admitted
evidence of prior uncharged acts of domestic violence and unauthenticated text messages,
(2) the evidence was insufficient to support his conviction for being a felon in possession
of a firearm, and (3) the cumulative effect of these errors violated due process. (People v.
Cruz, supra, C092435.) We affirmed the judgment on April 29, 2022.
In February 2022, while his original appeal was still pending, defendant filed a
motion in the trial court to correct an unauthorized or illegal sentence pursuant to sections
654 and 954. He argued that counts two, three, four, and five “occurred at the same
time” and were “so close together that they are the same event.” Defendant further
argued that counts two and five were the same crime because, in order to commit an
assault with a firearm, “one must first possess a firearm.” In addition, he argued his
sentence should have been reviewed pursuant to “620,” which we interpret to mean
Senate Bill No. 620 (2017-2018 Reg. Sess.), granting trial courts the discretion to strike
in the interest of justice a section 12022.5 firearm enhancement.
Acknowledging that defendant’s original appeal was still pending, the trial court
denied defendant’s motion in March 2022 because defendant had failed to establish that
his sentence was unauthorized. The trial court noted that defendant had made no
substantive argument regarding section 954. The trial court reasoned that, to the extent
defendant argued counts three and four were part of the same event as count two, the
sentences on counts three and four had already been stayed pursuant to section 654. And,
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although counts two and five involved the same firearm, they were “different crimes with
different elements.” Moreover, to the extent defendant argued they were part of the same
event, the trial court cited People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 for the
proposition that section 654 does not apply where the weapon possession preceded the
assault.
Defendant filed an appeal from the trial court’s March 2022 order on April 12,
2022, i.e., while his prior appeal was still pending.
DISCUSSION
A. Arguments Regarding the Merits of Defendant’s Firearm Possession
Conviction
In his supplemental briefing, defendant first challenges his firearm possession
conviction, arguing he never gave consent for the police search of the detached garage,
and that it was improper to charge him with constructive possession of the firearm, given
that he did not have exclusive access to the garage. We decline defendant’s invitation to
address arguments related to the merits of his conviction, given that his appeal here is
limited to the trial court’s denial of his motion to correct an unauthorized sentence
pursuant to sections 654 and 954. We further note that defendant has forfeited these
arguments because he failed to raise them in the trial court. (See People v. Lowery
(2020) 43 Cal.App.5th 1046, 1054 [“a party must raise an issue in the trial court if they
would like appellate review”].)
B. Arguments Regarding Section 654
Defendant next argues the trial court erred in determining that it had properly
sentenced defendant pursuant to section 654.2 According to defendant, some of his
2 Defendant makes no argument about how his convictions violate section 954 and
instead merely quotes People v. Vidana (2016) 1 Cal.5th 632 for the proposition that
section 954 “ ‘authorizes multiple convictions for different or distinct offense[s], but does
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crimes happened so close together that they were in fact one event or one crime. We
disagree.
At the time of defendant’s sentencing, section 654, subdivision (a) provided in
part: “An act or omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest potential term of
imprisonment, but in no case shall the act or omission be punished under more than one
provision.” (§ 654, subd. (a).) “Section 654 precludes multiple punishments for a single
act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.)
“ ‘Whether a course of criminal conduct is divisible and therefore gives rise to more than
one act within the meaning of section 654 depends on the intent and objective of the
actor. If all of the offenses were incident to one objective, the defendant may be
punished for any one of such offenses but not for more than one.’ ” (People v. Correa
(2012) 54 Cal.4th 331, 336.) “If, on the other hand, defendant harbored ‘multiple
criminal objectives,’ which were independent of and not merely incidental to each other,
he may be punished for each statutory violation committed in pursuit of each objective,
‘even though the violations shared common acts or were parts of an otherwise indivisible
course of conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination.” (People v. Jones,
supra, 103 Cal.App.4th at p. 1143.) As courts have explained, section 654 does not bar
punishment for both unlawful possession of a firearm and the primary offense in which
the defendant employs the weapon. (Ibid.) If the possession is “distinctly antecedent and
separate from the primary offense,” a court must impose punishment for both offenses.
not permit multiple convictions for a different statement of the same offense when it is
based on the same act or course of conduct’ ” (Vidana, at p. 650).
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However, if the possession is “only in conjunction with the primary offense,” then the
court may not punish for both offenses. (Ibid.)
We agree with the trial court that, to the extent defendant argues counts three and
four were part of the same event as count two, the sentences on counts three and four had
already been stayed pursuant to section 654. With respect to counts two and five, we find
no error in the trial court’s conclusion in May 2022 that it acted within its discretion in
2020 in holding that defendant’s unlawful possession of the firearm was distinctly
antecedent and separate from the assault, given that defendant also brandished it to Maria
E. and pointed it at her head. The trial court did not abuse its discretion and the sentence
was not unauthorized under section 654.
C. Arguments Regarding Assembly Bill No. 518
Finally, we turn to what we interpret as defendant’s argument that the trial court
failed to consider in March 2022 the recent amendments to section 654, effective
January 1, 2022, which removed the requirement to impose the longest potential prison
term. (§ 654, subd. (a); Assembly Bill No. 518 (2021-2022 Reg. Sess.); Stats. 2021, ch.
441, § 1.) We decline to address this argument because defendant failed to raise the issue
in the trial court. (See People v. Lowery, supra, 43 Cal.App.5th at p. 1054 [“a party must
raise an issue in the trial court if they would like appellate review”].)
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DISPOSITION
The trial court’s order is affirmed.
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
DUARTE, J.
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