California Court of Appeal Jun 27, 2022 No. E077816Unpublished
Filed 6/27/22 P. v. Marquez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077816
v. (Super. Ct. No. INF2000143)
SERGIO JUAN MARQUEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part, reversed in part, and remanded with directions.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Anthony Da Silva, Deputy
Attorney General, for Plaintiff and Respondent.
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I.
INTRODUCTION
A jury found defendant and appellant Sergio Marquez guilty of first degree 1 premediated attempted murder (Pen. Code, §§ 664/187, subd. (a); count 1); discharging
a firearm at an inhabited and occupied dwelling (§ 246; count 2); assault by means of
force likely to cause great bodily injury (§ 245, subd. (a)(4); count 3); corporal injury on
a former spouse (§§ 273.5, subd. (a), 243, subd. (f)(10); count 4). The jury found true
that defendant personally discharged a firearm proximately causing great bodily injury in
the commission of counts 1 and 2 (§ 12022.53, subd. (d)); that defendant personally used
a firearm in the commission of count 3 (§ 12022.5, subd. (a)); and that defendant caused
great bodily injury in the commission of count 4 (§ 12022.7, subd. (a)). Defendant was
sentenced to seven years to life on count 1, plus 25 years to life for the firearm
enhancement attached to that count; midterm sentences were imposed, but stayed
pursuant to section 654, on counts 2 through 4 and its attendant enhancements.
Defendant was awarded appropriate custody credits and ordered to pay various fines and
fees.
After defendant appealed from the judgment, appointed counsel filed a brief under
the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967)
386 U.S. 738, requesting this court to conduct an independent review of the record.
Thereafter, defendant filed a personal supplemental letter brief. We subsequently
1 All future statutory references are to the Penal Code unless otherwise stated.
2
reviewed the record, vacated submission of the case, and directed the parties to brief the
issue of whether we should reverse and remand the matter for a new sentencing hearing
in light of Assembly Bill No. 518 (Assembly Bill 518) and other relevant sentencing laws
that went into effect on January 1, 2022.
Assembly Bill 518 amended section 654 to give trial courts the authority to
impose sentence for any offense, not just the greatest offense, when that section applies to
preclude multiple punishment for crimes that were based upon a single act or omission.
(2021-2022 Reg. Sess.) In his letter brief, defendant argues the sentence should be
reversed and the matter remanded for a new sentencing hearing in light of Assembly Bill
518. The People agree. Because the judgment in this case is not yet final, we agree with
the parties that defendant is entitled to the benefit of Assembly Bill 518. Therefore, we
reverse defendant’s sentence and remand the matter for a new sentencing hearing. In all
other respects, we affirm the judgment.
II.
FACTUAL BACKGROUND
For approximately three months in early 2019, defendant and Jane Doe were in a
relationship. During that time, defendant often stayed at Jane’s apartment with her, and
they slept in Jane’s bedroom. Jane’s 13 year old daughter lived with her, and on occasion
her daughter’s cousin and her mother stayed with them. Jane’s bedroom had a sliding
glass door that opened onto the patio, and her bed was two to three feet from the sliding
glass door.
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After a month into their relationship, defendant began to accuse Jane of cheating
on him and seeing other people. In March 2019, Jane told him she wanted to end the
relationship. Defendant did not take the break up well and began to stalk and harass Jane.
He constantly called, texted, confronted, and watched Jane, to the point where Jane had to
obtain a temporary restraining order against defendant. In April 2019, defendant sent
Jane a text, stating that she’d “‘better watch [her] ass.’” In May 2019, defendant texted
Jane a photograph of a gun. In the end of May, he confronted Jane at her apartment
around 10:00 p.m., questioning her about her alleged new relationship with another man.
Jane told defendant to leave and that he was not welcome. Defendant left in a black Kia.
Later that night, defendant repeatedly texted Jane, asking her who she had been talking to
on FaceTime.
On the evening of June 7, 2019, Jane’s daughter and her cousin were in the
apartment with Jane when Jane awoke at 2:00 a.m. with pain in her leg. Jane’s leg was
bleeding heavily and the lights would not turn on. It was later discovered that defendant
had tampered with Jane’s electricity panel. Jane yelled to her daughter to call 911 and
crawled to the living room. After paramedics and police arrived, Jane was taken to the
hospital where she learned she had suffered a gunshot wound. The bullet had penetrated
her artery and lodged in her bladder. The bullet eventually came out in her urine.
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Officers discovered that Jane’s bedroom’s sliding glass door that led to the patio
had been shattered and that the blinds of the sliding glass door had been damaged. A .45
caliber live round and a spent casing were found on the patio near the sliding glass door.
In August 2019, defendant’s black Kia was repossessed, and during a search of the
vehicle, the tow truck driver found a black subcompact, semiautomatic handgun inside
the center console of the vehicle. The tow truck driver photographed the gun and
informed the Palm Springs Police Department. Because they did not have any officers
available to pick up the gun, the tow truck driver removed the gun’s magazine, which
was loaded, removed the round that was in the chamber and brought it in to the police
station himself. After defendant was notified of his car being towed, he retrieved the
property from the vehicle. When the tow truck driver informed defendant about the
firearm in the vehicle and gave him a card the police had provided, defendant did not
deny ownership of the gun and did not appear to be upset that it had been turned over to
the police.
Following a lengthy investigation, officers suspected defendant of committing the
crime and arrested him. Defendant had repeatedly told his new girlfriend that he wanted
to hire someone to shoot Jane. On the night of the shooting, defendant was staying with
his new girlfriend and left around 10:00 p.m. with a gun. Defendant returned very late,
around 3:00 a.m. He appeared stressed and was pacing back and forth. Defendant asked
his girlfriend to get her friends to drive to Jane’s apartment and shoot her through the
sliding glass door to her bedroom that faced the courtyard. Video surveillance from a
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nearby hotel near Jane’s apartment complex showed a black car similar to defendant’s
Kia driving away from Jane’s apartment complex with the lights off at 2:15 a.m. The 911
call was placed at 2:11 a.m.
After defendant was advised of his constitutional rights under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda), two officers interviewed defendant. Defendant 2 voluntarily spoke with the officers. Defendant denied shooting Jane or having driven the
car in May or June 2019. He admitted that he had seen the gun in the glove
compartment, but denied that it belonged to him. He maintained that he was extremely
inebriated and that sometimes he blacked out. He stated that if the police had evidence
proving he was at the scene of the crime, then he must have been there, but he had no
memory of it and did not recall being at the scene.
III.
DISCUSSION
Prior to its amendment by Assembly Bill 518 (2021-2022 Reg. Sess.), section 654
provided: “An act or omission that is punishable in different ways by different provisions
of law shall be punished under the provision that provides for the longest potential term
of imprisonment, but in no case shall the act or omission be punished under more than
one provision.” (§ 654, former subd. (a).)
2 The recording of the interview was played for the jury and the transcript of the interview was admitted at trial.
6
Assembly Bill 518 amended section 654 effective January 1, 2022, to provide, in
relevant part: “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
Thus, a trial court is no longer required to impose a sentence under the offense providing
for the longest possible sentence but may sentence a defendant under any one of the
applicable offenses. Assembly Bill 518 “provides the trial court new discretion to impose
a lower sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).) The People
concede Assembly Bill 518 applies retroactively to defendant’s case. (See Mani, supra,
at p. 379; In re Estrada (1965) 63 Cal.2d 740, 744-746.)
The parties agree the matter must be remanded for full resentencing in light of
Assembly Bill 518. (See People v. Buycks (2018) 5 Cal.5th 857, 881.) They are correct.
(Mani, supra, 74 Cal.App.5th at p. 379.) Under the amended version of section 654 now
in effect, the trial court is no longer required to impose sentence on count 1 (the
conviction providing the longest potential term of imprisonment) and its attendant
enhancement and to stay execution of the sentences and enhancements on counts 2, 3 and
4. Instead, the court may punish defendant “under either provision.” (Mani, supra, at p.
351.) Accordingly, we reverse the sentence and remand the matter to the trial court so
that it may exercise its newly afforded discretion under amended section 654.
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IV.
DISPOSITION
The sentence is reversed, and the matter is remanded for full resentencing
consistent with Assembly Bill 518. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant is entitled to the retroactive benefit of Assembly Bill No. 518, which grants trial courts discretion to impose sentence for any applicable offense rather than being limited to the offense with the longest term.
Issues
Whether the defendant is entitled to a new sentencing hearing in light of the amendment to Penal Code section 654 by Assembly Bill No. 518.
Disposition. Affirmed in part, reversed in part, and remanded.
Quotations verified verbatim against the opinion
“Because the judgment in this case is not yet final, we agree with the parties that defendant is entitled to the benefit of Assembly Bill 518. Therefore, we reverse defendant’s sentence and remand the matter for a new sentencing hearing.”