People v. Cuevas CA2/3 ( 2020 )

Filed 10/26/20 P. v. Cuevas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B292935, consolidated
with B299705
Plaintiff and Respondent,
Los Angeles County
v. Super. Ct. No. PA090576
ADRIAN CUEVAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael Terrell, Judge. Affirmed as
modified.
N. Noelle Francis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr., and
David A. Wildman, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
A jury convicted Adrian Cuevas of felony assault with
a deadly weapon and misdemeanor vandalism. He appeals
and we affirm the judgment as modified.
BACKGROUND
An information charged Cuevas with felony assault with
a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)); misdemeanor
vandalism (§ 594, subd. (a)); and making a criminal threat (§ 422,
subd. (a)). The information alleged Cuevas had served three
prior prison terms. (§ 667.5, subd. (b).)
On October 21, 2017, Cuevas, then 35 years old, lived in
a second-story apartment with his 68-year-old mother, Emilia
Alvarez. Alvarez testified Cuevas was drinking beer, and got
upset because she had forgotten his birthday. Cuevas went into
her bedroom and threatened to throw out all her things. He
threw objects around, hit the wall, punched a hole in the window
screen, and tossed a radio, a jar of face cream, and small
decorative plates out of the window and into the alley below.
Cuevas told her: “ ‘I’m going to finish everything off here and
then you’ll be left for me to do.’ ” Alvarez was afraid he would
hit her.
Standing in the bedroom doorway, Alvarez saw Cuevas
start to lift a large portable air conditioning unit that was on
the floor. Frightened, she ran outside and called 911. She told
the operator her son was breaking everything and throwing
things at her, he was under the influence of drugs, and she was
afraid, although she had managed to get out before he hit her
with anything. She called 911 a second time to ask when the
police would arrive.
1 All subsequent statutory references are to the Penal Code
unless otherwise indicated.
2
The prosecutor asked Alvarez if she remembered telling
Los Angeles Police Department Officer Oscar Amaro that Cuevas
picked up the air conditioning unit and threw it at her from six
or seven feet away, making her move out of the way to avoid
getting hit. Alvarez replied that Cuevas “couldn’t lift that air
conditioning unit because [Cuevas] is sick from his back.”
On cross-examination, Alvarez said Cuevas was drunk.
She called the police because she was angry and wanted him out
of the house. Cuevas was breaking glasses and throwing things
out the window. He tried to lift the air conditioner and let it go.
He did not lift it to his shoulders or try to throw it at her. The
unit was about three feet high and eighteen inches wide, and she
had wheeled it into her bedroom from the living room. She had
not been afraid he would throw it at her, or that he would hurt
her. When Cuevas drank, she was afraid he might hurt himself
or her, or hurt her dog (as he had done before).
Officer Ian Cochran testified that when he and his partner
responded to the apartment, they found Alvarez in the alley
behind the apartment building, visibly shaken and angry. In
broken English, she said her son had vandalized some of her
property. The police told Alvarez to stay in the alley and went
upstairs to the apartment. No one answered their knock and
they opened the unlocked door. Cuevas was pacing back and
forth in the hall and refused to go outside to talk. He appeared
to be under the influence of alcohol or drugs. He yelled at the
officers for 35 minutes, taking a shooting stance and pointing his
cell phone at them.
After the officers called for backup, Cuevas complied and
was arrested. Officer Cochran, his partner, and Officer Amaro
walked through the apartment with Alvarez. Her bedroom had
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been ransacked with things strewn around the room. The
window screen was broken and the alley below was littered
with broken plates.
A portable air conditioning unit lay on the bedroom floor
with panels broken off, several feet from the doorway. Officer
Cochran, who was six feet tall and weighed 190 pounds, lifted
the unit to his shoulder to test its weight. Cuevas was about
five feet eight inches tall, and weighed about 190 pounds.
Officer Amaro testified he responded to the back up call
and interviewed Alvarez in Spanish. She was frightened but
cooperative and provided details. Alvarez said when she
confronted Cuevas in her bedroom, he picked up the portable
air conditioning unit, lifted it to shoulder height, and threw it
at her from six or seven feet away. This was inconsistent with
her testimony at trial.
Two days later, Officer Jay Balgemino called Alvarez and
spoke to her in English. She confirmed that Cuevas threw an
air conditioning unit at her.
On November 4, 2017, Cuevas called Alvarez from jail.
Cuevas said investigators were going to interview her, and he
had heard she was going to say he threw the air conditioning unit
at her. Cuevas said he told the investigators he picked the unit
up, it felt very heavy because he was drunk, it strained his back,
and “ ‘well, I threw it to the—it fell to the floor.’ ” Cuevas warned
Alvarez she would have to be up in front answering questions
for several days. When Alvarez replied she could not miss work
because “[t]he lady needs me,” Cuevas told her not to go to court
and not to answer if they called. If she did talk to investigators,
“[J]ust say . . . that, well, that I didn’t throw it at you and that it
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fell on the floor and that . . . just don’t go to court because that’s
where they want to screw me over.”
Four months later, Alvarez testified at the preliminary
hearing Cuevas “tried to pick . . . up [the air conditioning unit],
but it was too heavy for him, and I ran out of the room thinking
he was going to try to hit me with it.”
In a July 2016 incident, Cuevas pushed Alvarez and made
her fall. She screamed and someone called the police. When the
police arrived, they heard her screaming inside the apartment
and kicked in the door. Cuevas was pulling Alvarez by the arms
toward the rear bedroom. She broke away, ran toward the
officers, and waited by the outside stairs. Crying, scared, and
cooperative, Alvarez told the officers Cuevas took her phone away
to stop her from calling 911. He grabbed her arms, pushed her
into the living room, threw her to the floor, pulled her away
from the front door, and locked it. Her stomach and knees
were injured.
In closing, the prosecutor argued that Cuevas abused
Alvarez. Cuevas called her from jail and told her to lie for him.
At trial, she struggled between protecting him and protecting
herself, contradicting the statements she made to the officers and
at the preliminary hearing. Defense counsel argued Alvarez’s
contradictory stories created a reasonable doubt whether Cuevas
threw the air conditioner at her.
The jury convicted Cuevas of assault with a deadly weapon
and vandalism, and acquitted him of making criminal threats.
After finding true one of the prior prison term allegations, the
trial court sentenced Cuevas to state prison for five years (the
upper term of four years for assault, and one year for the prior
prison term enhancement). For the misdemeanor vandalism,
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the court imposed 364 days in county jail to run concurrent
to the prison term. Cuevas received 684 days of presentence
custody credit.
DISCUSSION
1. Sufficient evidence supports the conviction for
assault with a deadly weapon
Cuevas does not argue the air conditioning unit was not
a deadly weapon. He contends there was insufficient evidence
he had the present ability to throw the air conditioning unit
at Alvarez.
“Any person who commits an assault upon the person of
another with a deadly weapon or instrument other than a firearm
shall be punished by imprisonment in the state prison for two,
three, or four years . . . .” (§ 245, subd. (a)(1).) “An assault is
an unlawful attempt, coupled with a present ability, to commit
a violent injury on the person of another.” (§ 240.) “ ‘Once
a defendant has attained the means and location to strike
immediately he has the “present ability to injure.” ’ ” (People v.
Chance (2008) 44 Cal. 4th 1164, 1174.) Immediately does not
mean instantaneously: “[W]hen a defendant equips and positions
himself to carry out a battery, he has the ‘present ability’
required . . . if he is capable of inflicting injury on the given
occasion, even if some steps remain to be taken, and even if
the victim or the surrounding circumstances thwart the infliction
of injury.” (Id. at p. 1172; People v. Nguyen (2017) 12 Cal. App. 5th
44, 48.) “Thus, an assault can occur even when the defendant
makes no contact with the victim.” (In re Raymundo M. (2020)
52 Cal. App. 5th 78, 85.) Whether a defendant is within striking
distance is a question for the trier of fact. (Id. at p. 87.)
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Cuevas argues the evidence was insufficient to support a
finding he had the present ability to pick up the air conditioning
unit and throw it far enough to seriously injure Alvarez, because
the unit was heavy and no evidence suggested he was capable
of this “extraordinary feat.” But the unit lay broken several feet
from the doorway where Alvarez stood. She told Officer Amaro
Cuevas threw the unit at her from six or seven feet away. Two
days later she confirmed to Officer Balgemino that Cuevas threw
the unit at her. Then Cuevas called Alvarez from jail and told
her not to talk to investigators or go to court, and to say he did
not throw the unit. At trial Alvarez testified Cuevas did not lift
the unit or try to throw it at her. The jury could reasonably
disbelieve this testimony, given under pressure from her son and
contradicted by her statements to the officers. Officer Cochran,
who weighed the same as Alvarez, picked up the air conditioning
unit and held it at shoulder height. There was no evidence how
much the unit weighed, or that it was physically impossible for
Cuevas to lift it and throw it at Alvarez.
Substantial evidence in the record supports the conclusion
that Cuevas had the present ability to seriously injure Alvarez.
He attained the means when he picked up the air conditioning
unit, and at six or seven feet away he was close enough to strike
by throwing the unit at Alvarez.
2. The one-year prior prison term enhancement must
be stricken
Cuevas received a one-year sentence enhancement under
section 667.5, subdivision (b) for having served a prior prison
term for a felony conviction. Effective January 1, 2020, Senate
Bill No. 136 amended section 667.5, subdivision (b) to apply only
if the prior prison term was served for a sexually violent offense.
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(Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Senate Bill
No. 136 applies to Cuevas, whose conviction was not final on
January 1, 2020. (People v. Winn (2020) 44 Cal. App. 5th 859, 872-
873.) Cuevas is entitled to the retroactive benefit of the change
in the law. And as the trial court imposed the maximum possible
sentence, we need not remand for resentencing, but may simply
strike the one-year enhancement. (Id. at pp. 873-874.)
3. No hearing is required on Cuevas’s ability to pay
fines and fees
At sentencing, with no objection from Cuevas, the trial
court stated: “[T]he defendant must pay the mandatory fees
and fines. There’s a restitution fine of $300 [§ 1202.4, subd. (b)];
a parole revocation restitution fine [§ 1202.45] in the same
amount, but that’s stayed until parole is revoked and he is
returned to prison. [¶] A criminal conviction/facilities assessment
of $30 [on each count, Gov. Code, § 70373], a court security fee
of $40 [on each count, § 1465.8, subd. (a)(1)], and a crime
prevention fine of $10 [§ 1202.5].” The minute order, however,
contains an additional court cost of $29 and a $2 criminal fine
surcharge [§ 1465.7], which also appear in the abstract of
judgment. The oral pronouncement of sentence controls over
the minute order or abstract of judgment. (People v. Zackery
(2007) 147 Cal. App. 4th 380, 385.) Respondent concedes we
therefore must strike the $29 court fee. Without that fee,
the fines and fees for the two counts of conviction total $450
(excluding the suspended parole revocation restitution fine).
On May 16, 2019, while this appeal was pending, Cuevas
moved the trial court pursuant to section 1237.2 and People v.
Dueñas (2019) 30 Cal. App. 5th 1157, to stay the execution of
the restitution fine and vacate or suspend the fees imposed at
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sentencing. At the hearing, Cuevas argued he was unemployed
when he was arrested and had no ability to pay fines and fees.
The trial court pointed out Section 1237.2 provides the trial court
retains jurisdiction after a notice of appeal is filed to correct
any error in fines or fees “where the erroneous imposition or
calculation of fines, penalty assessments, surcharges, fees, or
costs are the sole issue on appeal.” (§ 1237.2.) As Cuevas had
filed an appeal raising other issues, the court concluded it did not
have jurisdiction. In the alternative, the court found Cuevas had
the ability to pay the fines and fees because he could earn prison
wages during his time in state prison, citing People v. Johnson
(2019) 35 Cal. App. 5th 134, 139-140. The court denied the motion
and Cuevas appealed. We consolidated the two appeals.
As a general rule, “an appeal from an order [or judgment]
in a criminal case removes the subject matter of that order [or
judgment] from the jurisdiction of the trial court.” (Anderson
v. Superior Court of Solano County (1967) 66 Cal. 2d 863, 865;
see also § 1235, subd. (b) [“An appeal from the judgment or
appealable order in a felony case is to the court of appeal for
the district in which the court from which the appeal is taken
is located.”].) Section 1237.2 is an exception to this general rule.
(See § 1237 [providing in part that “[a]n appeal may be taken by
the defendant from . . . the following: [¶] (a) Except as provided
in Sections 1237.1, 1237.2, and 1237.5, from a final judgment
of conviction”].) However, if issues other than the imposition
or calculation of such fines, assessments, and fees are being
appealed, the limited exception provided by section 1237.2
to section 1235 no longer applies. (See People v. Jordan
(2018) 21 Cal. App. 5th 1136, 1142 [recognizing that § 1237.2
“mandate[s] that a defendant timely raise his [or her]
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penalty assessment claims to conserve judicial resources and
efficiently present claims in a single forum”].)
Here, the limited exception provided by section 1237.2
did not apply because Cuevas’s first appeal is not limited to an
error in the imposition or calculation of fines, assessments, and
fees. As such, the trial court was correct—it lacked jurisdiction
to rule on his motion to vacate the fines and fees. Because the
trial court did not err, we affirm the order challenged in the
second appeal and decline to reach Cuevas’s constitutional
challenges to the fines and fees imposed at sentencing.
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DISPOSITION
The judgment is modified to strike the one-year sentence
enhancement under section 667.5, subdivision (b), and to strike
the court cost of $29. In all other respects, the judgment is
affirmed.
The trial court shall issue an amended abstract of
judgment as set forth above, and shall send a certified copy of
the amended abstract to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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