People v. Cruz
| Decision Date | 26 February 2020 |
| Docket Number | E070518 |
| Citation | 46 Cal.App.5th 715,259 Cal.Rptr.3d 870 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Mario CRUZ, Jr., Defendant and Appellant. |
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, Tami Falkenstein Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
FIELDS J.
A jury found defendant and appellant, Mario Cruz, Jr., guilty as charged of committing several offenses against his former girlfriend, Jane Doe: stalking Jane while a restraining order prohibiting defendant from contacting Jane was in effect ( Pen. Code, § 646.9, subd. (b) ; count 1);1 vandalism of more than $400 (§ 594, subd. (b)(1); count 2); violating a criminal protective order, by an act or credible threat of violence, within seven years of suffering a prior conviction for violating such an order (§ 273.6, subd. (d); counts 3, 6, 7, & 9); and making criminal threats (§ 422; counts 5 & 8).2 The court found defendant had one prison prior3 (§ 667.5, subd. (b)) and sentenced defendant to an aggregate term of six years four months in state prison.4
Defendant raises four claims of error in this appeal. First, he claims his criminal threats conviction in count 5 must be reversed because the court erroneously admitted threatening Facebook messages sent to Jane from fictitious Facebook accounts to support the charge in count 5. Specifically, he claims the prosecution failed to authenticate the Facebook messages as having been sent to Jane by defendant. We conclude the messages were adequately authenticated based on their content, together with the testimony of Jane and other witnesses. This evidence made a prima facie showing, and allowed the jury to reasonably determine, that defendant was the person who sent the messages to Jane. Any inference that the messages came from persons other than defendant concerned the messages' weight, not their admissibility.
Second, defendant claims his criminal threats convictions in counts 5 and 8 must be reversed because making a criminal threat is a lesser included offense of stalking, and a person cannot be convicted of both a greater offense and a necessarily included lesser offense. Defendant also claims his stalking and criminal threats convictions are separate statements of the same offense and violate the double jeopardy clause of the Fifth Amendment, because his criminal threats convictions are necessarily included in his stalking conviction. All of these claims lack merit. Defendant was properly convicted of stalking in count 1 and making criminal threats in counts 5 and 8.
Third, defendant claims the court erroneously failed to stay, under section 654, his sentence on his criminal threats convictions in counts 5 and 8, and his convictions for violating restraining orders in counts 3, 6, 7, and 9, because these convictions arose from the same indivisible course of conduct, and were based on the same intent and objective, as his stalking conviction—namely, his threats to harm Jane and his attempts to convince Jane to resume his and Jane's romantic relationship between April and August 2016. We reject this claim because substantial evidence supports the court's implicit finding that defendant's convictions in counts 3, 5, 6, 7, 8, and 9 were based on distinct acts, occurring on separate days and thus divisible in time. Thus, separate punishment was properly imposed on each of these convictions.
Fourth and lastly, the parties agree, as do we, that the judgment must be modified to strike defendant's one-year prison prior enhancement (§ 667.5, subd. (b)), in light of the October 8, 2019 enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which applies retroactively to all judgments, including defendant's judgment, which were not final on appeal when the legislation went into effect on January 1, 2020. Thus, we modify the judgment to strike the one-year prison prior, which reduces defendant's sentence from six years four months to five years four months. In all other respects, we affirm the judgment.
Defendant and Jane dated for several months, beginning in 2015. Several times, either Jane or defendant broke off their relationship, but then the two of them would reconcile. Between August and October 2015, Jane obtained three restraining orders against defendant, and despite these orders, Jane and defendant reunited and broke up several more times between December 2015 and April 18, 2016. On March 10, 2016, Jane obtained three criminal protective orders against defendant when he pled guilty to violating the three restraining orders. The criminal protective orders were in effect until March 10, 2019.
On April 18, 2016, Jane decided she wanted to permanently end her relationship with defendant. After April 18, Jane tried to avoid defendant; she did not answer his calls or reply to his text messages. Jane lived with her father, R.M., and her five children. On April 18, Jane reported to police that defendant had violated the March 10, 2016, criminal protective orders by calling her home phone multiple times on April 18, and by sending her text messages on April 14, 15, and 17 from phone numbers she did not recognize. In these calls and text messages, defendant kept telling Jane he loved her and wanted her back.
Jane recorded defendant's last phone call to Jane's home phone on April 17, 2016, which R.M. answered, and the recording was played for the jury. In April 2016, defendant also called R.M. on R.M.'s cell phone, and R.M. told defendant to stop calling Jane. R.M. did not know how defendant obtained R.M.'s phone number. Defendant also sent several text messages to R.M.'s cell phone, calling Jane a "bitch," a "whore," and a "sex maniac," claiming Jane was "fucking" defendant's uncle, and saying that Jane would " ‘see what's coming to her’ " and would "regret it for the rest of her life."
On June 20, 2016, Jane saw defendant waiting for her as she was arriving for work at a Home Depot store where she had been working since January 2016. Jane told defendant to leave or she would call the police, but defendant followed her into the store, yelled at her, and threatened to vandalize her car unless she agreed to get back together with him. A store surveillance camera, which video-recorded the encounter between Jane and defendant, was played for the jury.
After defendant refused to leave, Jane reported defendant to two coworkers and her supervisor. Jane asked one of the coworkers, E.L., to move her car closer to the front of the store because she feared defendant would vandalize it and she feared going outside. E.L. waited until he thought defendant had left the store parking lot, then got into Jane's car to move it. Defendant then appeared in front of the car and threw a boulder, the size of a bowling ball, through the front windshield of the car. E.L. shifted to the left to avoid the boulder and got out of the car. Had E.L. not moved, the boulder would have hit him. Defendant then shattered the rear window and a side window of the car with other boulders he took out of his backpack.
A bystander tried to "de-escalate" the situation by confronting defendant, who then brandished another rock to keep E.L. and the bystander from approaching him. Defendant was saying, " " to keep E.L. and the bystander away from him. Defendant then ran away, dropped the rock, and got on a bus. The bystander called 911 to report the incident, and a recording of the 911 call was played for the jury.
The police arrived at the Home Depot store after the store manager placed a 911 call, which was also played for the jury, in which the store manager and Jane reported that defendant had accosted Jane in violation of a protective order and had vandalized her car. Repairs to fix the car windows cost Jane over $600. The incident made Jane fear defendant.
Jane called the police on July 6, 2016, reporting numerous violations of the three criminal protective orders by defendant during the preceding days. Jane reported that defendant had sent her various threatening text messages through Facebook Messenger, using fictious names or pseudonyms and "fake" Facebook accounts. Jane would block one Facebook sender, then the text messages would come to her through a new Facebook sender. 5
Using the name "Emilio Lopez," defendant sent several text messages to Jane between June 20 and July 6, 2016. One series of text messages from "Emilio Lopez," which Jane received between July 1 and July 6, 2016, said: Jane testified that Luis was a friend of Jane's and of defendant's uncle, and that defendant believed Jane was having a sexual relationship with Luis.
In another series of text messages from "Emilio Lopez," defendant wrote: ...
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