People v. Cruz CA3

Filed 3/10/15 P. v. Cruz CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C072126

Plaintiff and Respondent, (Super. Ct. Nos. 10F06182, 10F04710) v.

THOMAS CRUZ,

Defendant and Appellant.

Defendant Thomas Cruz was charged with crimes committed during two separate incidents. Regarding the first incident, defendant was charged with the attempted murder of Juan Gonzalez (Pen. Code, §§ 187, 6641 (count one)) and shooting at an inhabited dwelling (§ 246 (count two)). In connection with count one, it was further alleged that the attempted murder was deliberate and premeditated (§ 664). In connection with counts one and two, it was further alleged that a principal used and discharged a firearm and that

1 Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.

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defendant personally used and discharged a firearm (§ 12022.53, subds. (b), (c), (e)(1)). Regarding the second incident, defendant was charged with the attempted murder of Ricardo Castillo (§§ 187, 664 (count three)), and assault on Castillo by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) (count four)). In connection with counts three and four, it was further alleged that defendant personally used a knife (§ 12022, subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)). In connection with all counts, it was alleged that defendant committed the offenses for the benefit of the Norteño criminal street gang (§ 186.22, subd. (b)(1)). A jury found defendant guilty of shooting at an inhabited dwelling and sustained the allegations that defendant personally used a firearm, at least one principal used and discharged a firearm (§ 12022.53, subds. (b), (e)(1)),2 and that the offense was committed for the benefit of a gang (§ 186.22, subd. (b)(1)). The jury found defendant not guilty on count three and found him guilty on the lesser included misdemeanor offense of simple assault (§ 240) on count four. The jury was unable to reach a verdict on count one, the court declared a mistrial on that count, and the prosecutor’s motion to dismiss that count was granted. The trial court sentenced defendant to state prison for a indeterminate term of 15 years to life on count two, shooting at an inhabited dwelling (§§ 246, 186.22, subd. (b)(4)) plus a determinate term of 10 years for the firearm use enhancement (§ 12022.53, subd. (b)). The court also sentenced defendant to six months for the misdemeanor assault with credit for time served. Defendant contends (1) his sentence of 25 years to life constitutes cruel and unusual punishment under the federal and state Constitutions, and (2) the abstract of judgment requires modification to delete the gang enhancement because the same