California Court of Appeal Nov 21, 2013 No. D059948Unpublished
Filed 11/21/13 P. v. Cruz CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D059948
Plaintiff and Respondent,
v. (Super. Ct. No. SCD221121)
JACOB ANDREW CRUZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Laura H. Parsky, Judge. Affirmed.
Michael Anthony Hernandez for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steven Taylor Oetting and
Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Jacob Andrew Cruz guilty of one count of employing a minor to
engage in prohibited acts and several counts of lewd acts upon a child. On the lewd
act charges, the jury also found true allegations that Cruz had substantial sexual
contact with a child younger than 14 years of age and committed the offenses against
more than one victim. He appeals, contending (1) the trial court erred in not taking an
affirmative waiver of his right to testify on his own behalf, (2) he was denied due
"Conclusions of law or of mixed questions of law and fact, such as the elements of a
Brady claim [citation], are subject to independent review. [Citation.] Because the
[trier of fact] can observe the demeanor of the witnesses and their manner of testifying,
findings of fact, though not binding, are entitled to great weight when supported by
substantial evidence." (Id. at p. 1042.)
Here, Cruz failed to show the prosecution suppressed the evidence. During
trial, the prosecution provided defense counsel with a summary of Brown's interview.
That summary provided the details of the interview and stated that the interview was
recorded. Thus, the information was fully available to Cruz during trial. Simply put,
there is no Brady claim of prosecutorial suppression of evidence " 'when information is
fully available to a defendant at the time of trial and his only reason for not obtaining
and presenting the evidence to the Court is his lack of reasonable diligence . . . .' "
(People v. Morrison (2004) 34 Cal.4th 698, 715, quoting United States v. Brown (5th
Cir. 1980) 628 F.2d 471, 473.)
Further, Cruz has failed to demonstrate there was a material discrepancy
between the audio recording and the summary of Brown's interview provided during
6
trial. Based on our review of the summary and transcript of the audio recording, the
significant evidence was disclosed to defense counsel. Namely, the summary conveys
Brown's recollection that Christopher stated Cruz had sex with him from behind at the
La Jolla Indian Reservation and that he had not told anyone about the incident.
Accordingly, the evidence was disclosed and available to Cruz during trial. Under
these circumstances, we conclude there was no Brady violation.
III. Alleged Ex Post Facto Violation
Cruz argues the trial court violated ex post facto principles when it found he
was statutorily ineligible for probation on the counts relating to lewd acts on Richard
and Christopher because those crimes occurred in 2000, which was before the current
version of Penal Code section 667.61 (the One Strike law) was in effect. (All further
statutory references are to the Penal Code.) We reject his argument.
"The federal and state prohibitions against ex post facto laws apply to any
statute that punishes as a crime an act previously committed which was not a crime
when done or . . . inflicts greater punishment than the applicable law when the crime
was committed." (People v. Alvarez (2002) 100 Cal.App.4th 1170, 1178.)
In its current version, the One Strike law requires a person convicted of
committing a lewd act in violation of section 288, subdivision (a) to be sentenced to an
indeterminate prison term of 15 years to life when, among other things, "[t]he
defendant has been convicted in the present case . . . of committing [a qualifying]
offense . . . against more than one victim." (§ 667.61, subds. (b), (e)(4).) However,
prior to 2006, the One Strike law applied to defendants convicted under section 288,
7
subdivision (a) " 'unless the defendant qualifies for probation under subdivision (c) of
Section 1203.066.' " (§ 667.61, former subd. (c)(7), italics added.) Former section
1203.066, subdivision (c), which was effective through December 31, 2005, detailed
the findings the court was required to make before granting probation, including
findings that the defendant was related to the victim or a member of the victim's
household, probation was in the best interests of the child, rehabilitation was feasible,
the defendant was removed from the victim's household, and a grant of probation
would not threaten the victim with physical harm. "Of course, probation is not
required where favorable findings under section 1203.066[, subdivision] (c) are made.
The sentencing court 'retains the discretion' to find the defendant unsuitable for
probation and to order imprisonment." (People v. Wutzke (2002) 28 Cal.4th 923, 932,
fn. 7.)
Here, in sentencing Cruz, the trial court found he was ineligible for probation
because he committed the offenses against more than one victim and had substantial
sexual contact with a victim younger than 14 years of age. Cruz contends the sentence
was improper as to his offenses against Christopher and Richard because those crimes
occurred before the One Strike law was amended to eliminate the probation exception.
He claims the trial court could have exercised its discretion to sentence him to a
determinate term or probation. As we shall explain, we reject Cruz's argument on
multiple grounds.
First, the trial court could not have granted probation based on the record.
"[A] defendant has the burden to present evidence showing that he is entitled to
8
consideration for probation under [former] subdivision (c) of section 1203.066."
(People v. Groomes (1993) 14 Cal.App.4th 84, 89.) The record revealed that Cruz was
related to Christopher and Richard; however, the record does not include evidence as
to the other requirements. Further, even if evidence was presented on the probation
requirements, probation was not appropriate in this case because Christopher and
Richard were adults at the time of sentencing. "[T]he plain language of former section
1203.066(c)(2) evinces the Legislature's intent that a sentencing court shall have no
authority, and thus no legal discretion, to grant probation to a defendant . . . in a case
in which the molestation victim is no longer a child at time of sentencing." (People v.
Wills (2008) 160 Cal.App.4th 728, 740.)
Second, Cruz's sentence did not violate ex post facto principles because it was
not a greater punishment than the applicable law when the crime was committed.
(People v. Alvarez, supra, 100 Cal.App.4th at p. 1178.) Cruz was sentenced to terms
of 15 years to life for each of his crimes against Christopher and Richard. At the time
Cruz committed those crimes, he was subject to the One Strike law unless he qualified
for probation. (§ 667.61, former subd. (c)(7).) As we previously discussed, Cruz did
not meet the requirements for probation. Accordingly, the trial court did not err in
sentencing Cruz to indeterminate terms of 15 years to life.
Lastly, we note that Cruz ignores that he was also convicted of committing a
lewd act on E. in 2006 and the jury found true allegations that he committed the
offense against more than one victim and had substantial sexual contact with E.
9
Accordingly, probation was not available to Cruz based on his crime against E. Thus,
we reject Cruz's contention of an ex post facto violation.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
MCDONALD, J.
10
AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court was not required to obtain an express waiver of the defendant's right to testify, that no Brady violation occurred because the evidence was disclosed during trial, and that the sentencing did not violate ex post facto principles.
Issues
Whether the trial court erred by not obtaining an express waiver of the defendant's right to testify.
Whether the prosecution committed a Brady violation by failing to disclose an audio recording during trial.
Whether the trial court violated ex post facto principles in determining the defendant's eligibility for probation.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“a court has no duty to advise a defendant of the right to testify or seek an explicit waiver of the right from the defendant unless the court learns of an express conflict between the defendant and defense counsel about the matter.”
“Cruz's sentence did not violate ex post facto principles because it was not a greater punishment than the applicable law when the crime was committed.”