People v. Cruz CA4/1 ( 2023 )

Filed 10/13/23 P. v. Cruz CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081966
Plaintiff and Respondent,
v. (Super. Ct. No. INF2000322)
MARIO CRUZ, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Otis Sterling III, Judge. Affirmed.
Kevin Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
A jury convicted Mario Cruz, Jr. of stalking with a prior conviction for
the same offense (Pen. Code,1 § 646.9, subd. (c)(2)); one count of inflicting
corporal injury on a person in a dating relationship (§ 273.5); and false
1 All further statutory references are to the Penal Code.
imprisonment (§ 236). The court found Cruz had suffered a prior strike
conviction (§ 667, subds (b)-(i)).
Cruz was sentenced to a determinate term of 12 years consisting of the
upper term of five years for stalking, doubled to 10 years for the strike prior;
one year for the infliction of corporal injury, which was one-third the middle
term, doubled for the strike prior. The sentence for false imprisonment was
stayed under section 654.
Cruz appealed and this court affirmed the convictions but remanded
the case to the trial court for a new sentencing hearing because of the
enactment of Senate Bill No. 567 (Stats. 2021, ch. 731, § 1.3) and Assembly
Bill No. 518 (Stats. 2021, ch. 441, § 1), which were enacted after the original
sentencing in this case. (People v. Cruz (Sept. 8, 2022, D079151) [nonpub.
opn.].)2
On remand, the trial court conducted a new sentencing hearing. The
court recognized its use of aggravating factors to support an upper term
sentence were limited by Senate Bill No. 567. The court again imposed an
upper term sentence for stalking based on Cruz’s certified prior convictions.
The court again imposed a term of 12 years.
Cruz filed a timely notice of appeal.
Appellate counsel has filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any
arguable issues for reversal on appeal. Counsel asks the court to
independently review the record for error as mandated by Wende. We offered
Cruz the opportunity to file his own brief on appeal, but he has not
responded.
2 We grant appellant’s request to take judicial notice of our opinion in
case No. D079151.
2
We fully addressed the facts of the offenses in our prior opinion, we will
not repeat that discussion here.
DISCUSSION
As we have noted appellate counsel has filed a Wende brief and asks
the court to independently review the record for error. To assist the court in
its review and in compliance with Anders v. California (1967) 386 U.S. 738(Anders) counsel has identified three possible issues that were considered in
evaluating the potential merits of this appeal.
1. Whether the court violated Senate Bill No. 567 when the court
imposed the same upper term sentence based on a single aggravating factor
from appellant’s prior conviction.
2. Whether the court abused its discretion under section 654 by not
staying the greater sentence.
3. Did the court err by failing to find the convictions for stalking
and false imprisonment arose from the same course of conduct.
We have reviewed the record as required by Wende and Anders. We
have not discovered any arguable issues for reversal on appeal. Competent
counsel has represented Cruz on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
CASTILLO, J.
3