People v. Cuenca CA1/4

Filed 6/23/22 P. v. Cuenca CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A162532, A162769 v. (Napa County Super. Ct. EMANUEL O. CUENCA, Nos. CR183992, 20CR002592) Defendant and Appellant.

MEMORANDUM OPINION1 Appellant Emanuel O. Cuenca appeals from two final judgments in this consolidated matter—the first following a violation of probation hearing where his probation was terminated, and the second following a jury trial where he was found guilty of assault under Penal Code2 section 240. Cuenca’s appointed counsel on appeal has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436. Having conducted an independent review of the record pursuant to the holding in that case, we order the trial court to correct an error made in the sentencing order in connection with the violation of probation but otherwise affirm the judgments.

We resolve this case by memorandum opinion because it raises no 1

substantial issue of fact or law. (Cal. Stds. Jud. Admin., § 8.1.) 2 All statutory references are to the Penal Code unless otherwise noted.

1

A. Violation of Probation Case (CR183992) On June 28, 2017, police responded to a report that a male, later identified as Cuenca, had assaulted a female on the street. The female, S.C., later told the police that she and Cuenca were sitting in Cuenca’s truck in a parking lot, when his “temper flared.” He told S.C. to get out of his truck, which she did. As she walked away, Cuenca ran up behind her and put her into a choke hold with his right arm while grabbing her hair with his left hand. He then pulled S.C. back towards his truck and pulled her hair so hard that a handful of it fell out. A police officer approached them at this point, and Cuenca let go of S.C. and ran from the officer. The officer chased after Cuenca and sustained a foot injury during the pursuit. Cuenca was eventually apprehended. On January 26, 2018, Cuenca pleaded no contest to a violation of section 148.10, subdivision (a) (resisting a peace officer that results in serious bodily injury to the officer) and section 236 (false imprisonment of S.C.). The trial court suspended imposition of sentence and placed Cuenca on probation for three years. On October 26, 2020, the district attorney’s office filed a petition to revoke probation. The petition alleged that Cuenca violated the terms of his probation based on the assault detailed below. B. Assault Case (20CR002592) On September 25, 2020, M.O., Cuenca’s friend and coworker, accompanied Cuenca on his drive to Calistoga to drop off some PVC pipes. On the drive there, they stopped by a gas station where M.O. bought some drinks. When M.O. returned, he put his drink in the cup holder of the truck. The drink fell out and M.O. noticed that the cup holder was broken. M.O. asked Cuenca if he knew that his cup holder was broken. Cuenca responded no and that he would decide whether to fix it or not. He did not appear upset.