People v. Cruz CA6 ( 2020 )

Filed 11/17/20 P. v. Cruz CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H048136
(Monterey County
Plaintiff and Respondent, Super. Ct. No. 19CR002763)
v.
MARK ANTHONY CRUZ,
Defendant and Appellant.
I. INTRODUCTION
A jury found defendant Mark Anthony Cruz guilty of assault with a deadly
weapon (Pen. Code, § 245, subd. (a)(1))1 and found true the allegation that defendant
personally used a deadly weapon, a knife, during the commission of the offense (§§ 667,
969f, subd. (a), 1192.7). In a bifurcated trial, the trial court found defendant had been
convicted of three strike priors and three serious felony priors (§§ 1170.12,
subd. (c)(2)(A), 667, subd. (a)). The court denied defendant’s Romero2 motion to strike
the prior strikes and sentenced defendant to 25 years to life.
On appeal, defendant’s appointed counsel filed a brief pursuant to People v.
Wende (1979) 25 Cal. 3d 436 (Wende) that states the case but raises no issues. We
1
All further statutory references are to the Penal Code.
2
People v. Superior Court (Romero) (1996) 13 Cal. 4th 497 (Romero).
notified defendant of his right to submit written argument on his own behalf within
30 days. Defendant subsequently filed two letter briefs.
As we will explain, pursuant to Wende, supra, 25 Cal. 3d 436 and People v. Kelly
(2006) 40 Cal. 4th 106 (Kelly), we have carefully reviewed the entire record, considered
defendant’s contentions, and determined that there are no arguable issues on appeal.
Therefore, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Following the California Supreme Court’s direction in Kelly, supra, 40 Cal.4th at
page 110, we provide a brief description of the facts and the procedural history of the
case.
A. Prosecution Evidence
At a little after 5:30 p.m. on March 13, 2019, Joseph Graffagnino was outside of a
drop-in homeless center in Salinas when he saw defendant trying to kick someone’s dog
across the street. Graffagnino asked defendant why he was trying to kick the dog.
Defendant became defensive and approached Graffagnino while repeatedly shouting,
“ ‘You don’t know me, kid.’ ” Graffagnino told defendant that he saw him kick the dog,
but defendant denied it. Defendant stopped at the curb, dropped his backpack, and pulled
a knife from his pocket. Graffagnino put his hands up, stating, “ ‘[W]hoa, whoa, whoa,
whoa.’ ” Defendant stabbed Graffagnino on the left side of his torso by his ribcage.
Defendant put the knife back in his pocket and continued to shout, “ ‘You don’t know
me, kid.’ ” Graffagnino went inside the center and defendant walked away.
Someone at the center called the police. Defendant went inside and started
shouting at the person calling 911, “ ‘Tell them it’s the FBI. Tell them it’s the FBI.’ ”
The police arrived and arrested defendant. During a search, police found a folding knife
with a three-inch blade in defendant’s front right pocket. The blade on the knife was
open. Defendant had blood on his hands and a small cut on his left thumb. The knife
tested negative for blood. Graffagnino was taken to the hospital.
2
B. Defense Evidence
Defendant testified that he was homeless in Salinas in March 2019. Defendant
kept his personal items with him and sometimes carried a knife for protection. The
three-inch folding knife recovered by the police belonged to him.
Defendant stated that he had encountered Graffagnino in the past. Graffagnino
was with his friend, Michael, when defendant and Michael got into a fistfight.3 At some
point, Graffagnino hit defendant in the back of the head. After that encounter, defendant
tried to avoid Graffagnino and Michael when he saw them around the neighborhood.
On March 13, 2019, defendant was across the street from Graffagnino looking for
his bike when he heard Graffagnino say, “ ‘Don’t kick the dog.’ ” Defendant responded,
“ ‘What dog?’ ” Defendant told Graffagnino, “ ‘I didn’t kick no dog.’ ” Graffagnino
began swearing at defendant. Defendant “start[ed] to get mad” and crossed the street to
ask Graffagnino what he was talking about. By this point, defendant and Graffagnino
were yelling at each other.
Defendant testified that Graffagnino started to “com[e] at him aggressively” and
clench his fists. Defendant thought that Graffagnino was going to attack him. Defendant
“pulled out the knife and . . . poked” Graffagnino once. Graffagnino put up his hands up.
Defendant left, but then returned to the homeless center once he heard sirens. Defendant
did not know Graffagnino was inside the center.
Defendant admitted that he was convicted of making criminal threats in 2019 and
2014; he was convicted of robbery in 2012; and he was convicted of second degree
burglary in 2011.
C. Bifurcated Trial on Prior Conviction Allegations
The prosecution moved 11 certified prior conviction records into evidence during
the bifurcated court trial on the prior strike and prior serious felony allegations. The
3
Michael’s last name does not appear in the record.
3
exhibits showed that in 1997, defendant was convicted of assault with a deadly weapon
(§ 245, subd. (a)(1)) in Monterey County Superior Court case No. SS972174; in 2011,
defendant was convicted of second degree robbery (§§ 211/212.5, subd. (c)) in Santa
Clara County Superior Court case No. CC948730; and in 2012, defendant was convicted
of second degree robbery (§ 211) in Monterey County Superior Court case
No. SS091859A.
D. Charges, Verdict, and Sentence
Defendant was charged with assault with a deadly weapon (§ 245, subd. (a)(1)). It
was also alleged that defendant personally used a deadly weapon, a knife, during the
commission of the offense (§§ 667, 969f, subd. (a), 1192.7) and that he had been
convicted of three strike priors and three serious felony priors (§§ 1170.12,
subd. (c)(2)(A), 667, subd. (a)).
A jury found defendant guilty of assault with a deadly weapon and found true the
allegation that defendant personally used a deadly weapon, a knife, during the
commission of the offense. The trial court found the prior strike and prior serious felony
allegations true.
The trial court denied defendant’s Romero motion to strike the prior strikes. The
court imposed and stayed five-year terms for each of the prior serious felony
enhancements and sentenced defendant to 25 years to life pursuant to the
“Three Strikes” law. The court ordered defendant to pay victim restitution and various
fines and fees. The court awarded defendant 848 days of custody credits.
Defendant filed a timely notice of appeal.
III. DISCUSSION
Defendant’s appointed counsel filed a Wende brief that states the case but raises
no issues. However, defendant filed two letter briefs raising several claims on his own
4
behalf. We address defendant’s claims pursuant to Kelly, supra, 40 Cal.4th at pages 120-
121.
First, defendant contends that his trial counsel was ineffective for failing to request
that this case be referred to “C.N.C. court for defendant[s] with mental health issues” or
to “a military tribunal” because he was in the military. “To prevail on a claim of
ineffective assistance of counsel, the defendant must show counsel’s performance fell
below a standard of reasonable competence, and that prejudice resulted. [Citations.]
When a claim of ineffective assistance is made on direct appeal, and the record does not
show the reason for counsel’s challenged actions or omissions, the conviction must be
affirmed unless there could be no satisfactory explanation. [Citation.]” (People v.
Anderson (2001) 25 Cal. 4th 543, 569 (Anderson).)
Here, the record is silent regarding the reason for counsel’s decision not to request
“C.N.C. court” or a “military tribunal” and thus “affords no basis for concluding that
counsel’s omission was not based on an informed tactical choice.” (Anderson, supra, 25
Cal.4th at p. 569.) Accordingly, defendant’s ineffective assistance of counsel claim fails.
(Id. at pp. 569-570.)
Second, defendant contends the trial court was “extreme[ly] bias[ed]” against him
because “allegedly gang members [he] used to be aligned with threatened [the court’s]
life” when she was a prosecutor. “In general, if the trial court refuses or fails to
disqualify itself, the complaining party must seek disqualification at the earliest
practicable opportunity after discovery of the facts constituting the ground for
disqualification. In doing so, the party must bring to the trial court’s attention ‘all of the
facts’ later cited on appeal in support of the judicial bias claim. [Citation.]” (People v.
Lewis and Oliver (2006) 39 Cal. 4th 970, 994 (Lewis and Oliver).)
Here, defendant did not move to disqualify the trial court and has therefore
forfeited any claim of judicial bias. (Lewis and Oliver, supra, 39 Cal.4th at p. 994.)
5
Moreover, based on the record before us, we see no violation of defendant’s right to be
tried before an impartial judge. Thus, the bias claim also fails on the merits. (See ibid.)
Third, defendant contends that his 1997 conviction of assault with a deadly
weapon “was found by [a different trial court] not to be a strike” and “frivolous as that
may be, [this trial court] took that into consideration as well. The ‘victim’ in that case
was not injured in any way.” However, there is nothing in the record on appeal regarding
another trial court’s determination of the nature of defendant’s 1997 prior conviction. To
the extent that defendant alleges there is insufficient evidence to support the trial court’s
finding that the 1997 prior conviction qualified as a strike offense, we conclude
otherwise. The abstract of judgment for the prior conviction states that on
September 4, 1997, defendant was convicted of “Assault with Deadly Weapon” in
violation of section 245, subdivision (a)(1) in Monterey County Superior Court case
No. SS 972174. The abstract’s specification that defendant was convicted of assault with
a deadly weapon is sufficient evidence to support the trial court’s determination that the
conviction qualified as a strike. (See People v. Delgado (2008) 43 Cal. 4th 1059, 1069-
1070; § 1192.7, subd. (c)(23).)
Fourth, defendant contends the trial court abused its discretion during sentencing.
Defendant asserts that the court “state[d] things that could have happened” and references
a portion of the sentencing transcript where the court, after it had denied defendant’s
Romero motion, discussed the serious nature of defendant’s offense despite the victim’s
lack of significant injuries.4 However, once the court appropriately determined there was
no legal basis to strike the prior strike allegations, the court had no discretion to depart
4
Before it imposed sentence, the trial court stated, “Although the [victim] . . .
wasn’t terribly hurt by it, when you put a blade in someone’s body you don’t know what
you’re going to hit and what you’re not going to hit. I’ve seen cases where people are
stabbed horrifically and are just fine. And I’ve seen cases where people are stabbed not
that horrifically and suffered very serious injuries because it []nicks some vital organ
inside.”
6
from the Three Strikes sentencing scheme. (See Romero, supra, 13 Cal.4th at p. 505.)
Moreover, the court exercised what sentencing discretion it had in defendant’s favor
when it stayed the imposition of the section 667, subdivision (a) prior serious felony
enhancements and sentenced defendant to a term of 25 years to life instead of 40 years to
life. We therefore conclude that the trial court did not abuse its sentencing discretion.
Fifth, defendant contends that his 25 years to life sentence violates the Eighth
Amendment because it is cruel and unusual. We determine that defendant’s sentence
does not constitute cruel and unusual punishment.
In Ewing v. California (2003) 538 U.S. 11, 20, the United States Supreme Court
considered punishment imposed under California’s Three Strikes law. The defendant
was convicted of grand theft of three golf clubs worth $ 399 each. (Id. at p. 18.) The
defendant’s criminal history spanned from 1984 to 1993 and included misdemeanor and
felony convictions for petty theft, auto theft, battery, burglary, robbery, possession of
drugs, trespass, and unlawful possession of a firearm. (Id. at pp. 18-19.) The trial court
sentenced defendant to 25 years to life. (Id. at p. 20.) The Supreme Court explained that
in enacting the Three Strikes law, the California Legislature “made a judgment that
protecting the public safety requires incapacitating criminals who have already been
convicted of at least one serious or violent crime. Nothing in the Eighth Amendment
prohibits California from making that choice.” (Id. at p. 25.)
In addressing the gravity of the offense compared to the harshness of the penalty,
the Supreme Court emphasized that the gravity of the defendant’s offense included not
only his current felony, but also his history of having been convicted of at least two
violent or serious felonies. (Ewing, supra, 538 U.S. at pp. 28-29.) “In imposing a three
strikes sentence, the State’s interest is not merely punishing the offense of conviction, or
the ‘triggering’ offense: ‘[I]t is in addition the interest . . . in dealing in a harsher manner
with those who by repeated criminal acts have shown that they are simply incapable of
conforming to the norms of society as established by its criminal law.’ ” (Id. at p. 29.)
7
The court found that “Ewing’s sentence is justified by the State’s public-safety interest in
incapacitating and deterring recidivist felons, and amply supported by his own long,
serious criminal record.” (Id. at pp. 29-30, fn. omitted.) Therefore, the court held that
“Ewing’s sentence of 25 years to life in prison, imposed for the offense of felony grand
theft under the [T]hree [S]trikes law, is not grossly disproportionate and therefore does
not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.” (Id.
at pp. 30-31.)
Likewise, here, defendant’s sentence is amply supported by the seriousness of the
offense and defendant’s criminal history. Defendant, while on parole and on
misdemeanor probation, committed a new strike offense, assault with a deadly weapon,
and personally used a knife in the commission of the offense, stabbing the victim near his
ribcage. (§§ 667, 969f, subd. (a), 1192.7, subd. (c)(23).) Defendant’s criminal history
began in 1988 and continued uninterrupted but for periods of incarceration. Defendant
had 13 prior felony convictions, three of which were the strike offenses pled and proven
here, and 17 prior misdemeanor convictions. On this record, we conclude that
defendant’s sentence of 25 years to life is not grossly disproportionate and does not
violate the prohibition against cruel and unusual punishment.
Sixth, citing Romero, People v. Williams (1998) 17 Cal. 4th 148 (Williams),5 and
People v. Zichwic (2001) 94 Cal. App. 4th 944, 960, defendant asks, “[W]here risk of
danger is measured . . . what are the chances of me re-offending or posing an undue
danger to society as I would be a senior up in years if I were to [serve] 12-13 more
[years] in prison[?]” We understand defendant to contend that the trial court erred when
it denied his Romero motion to strike his prior strike convictions.
5
Defendant’s letter brief cites only “People v. Williams.” We assume he is
referencing Williams, supra, 17 Cal. 4th 148 because that is a leading Three Strikes case.
8
In ruling on a Romero motion, the trial court must “ ‘ “consider[ ] both . . . the
constitutional rights of the defendant, and the interests of society represented by the
People. . . .” ’ ” (Romero, supra, 13 Cal.4th at p. 530, italics omitted.) The trial court
must accord “preponderant weight . . . to factors intrinsic to the [Three Strikes] scheme,
such as the nature and circumstances of the defendant’s present felonies and prior serious
and/or violent felony convictions, and the particulars of his [or her] background,
character, and prospects.” (Williams, supra, 17 Cal.4th at p. 161.) “[N]o weight
whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to
ease court congestion or, a fortiori, bare antipathy to the consequences for any given
defendant. [Citation.]” (Ibid.) Ultimately, the trial court must determine whether “the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he [or she] had not previously been convicted of one or more
serious and/or violent felonies.” (Ibid.)
We review a trial court’s discretionary sentencing choices, including its refusal to
strike a prior strike conviction, for an abuse of discretion. (People v. Carmony (2004) 33
Cal. 4th 367, 375 (Carmony).) “[A] trial court will only abuse its discretion in failing to
strike a prior felony conviction allegation in limited circumstances. For example, an
abuse of discretion occurs where the trial court was not ‘aware of its discretion’ to
dismiss [citation], or where the court considered impermissible factors in declining to
dismiss [citation].” (Id. at p. 378.) An abuse of discretion also occurs where the trial
court “strikes a sentencing allegation[ ] solely ‘to accommodate judicial convenience or
because of court congestion,’ ” or “simply because a defendant pleads guilty.” (Romero,
supra, 13 Cal.4th at p. 531.) On the other hand, “ ‘[w]here the record demonstrates that
the trial court balanced the relevant facts and reached an impartial decision in conformity
with the spirit of the law, we shall affirm the trial court’s ruling.’ ” (Carmony, supra, at
p. 378.)
9
Here, the trial court did not abuse its discretion when it denied defendant’s
Romero motion. The court stated that it had “thought long and hard about this,” and had
considered the recency of defendant’s prior convictions, defendant’s criminal history, and
“his prospects for living a law-abiding and productive life outside of custody.” The court
determined that it was “simply not able to find the defendant falls outside the spirit of the
[T]hree [S]trikes law.” Because the record demonstrates that the court understood its
discretion and weighed the Williams factors, we must reject defendant’s claim. (See
Carmony, supra, 33 Cal.4th at p. 378.)
In addition to considering defendant’s claims, we have carefully reviewed the
entire record. We conclude there are no arguable issues on appeal. (See Wende, supra,
25 Cal.3d at pp. 441-443.)
IV. DISPOSITION
The judgment is affirmed.
10
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
People v. Cruz
H048136