California v. Cruz
Annotate this CaseDefendant-appellant Mario Cruz, Jr. was found by jury 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 (count 1); vandalism of more than $400 (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 (counts 3, 6, 7, & 9); and making criminal threats (counts 5 & 8). The court found defendant had one prison prior, and sentenced defendant to an aggregate term of six years four months in prison. On appeal, defendant argued: (1) the prosecution failed to authenticate the Facebook messages as having been sent to Jane by defendant; (2) his criminal threats convictions in counts 5 and 8 should have been reversed because making a criminal threat was a lesser included offense of stalking, and a person cannot be convicted of both a greater offense and a necessarily included lesser offense; (3) the court erroneously failed to stay, under Penal Code 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; and (4) the judgment had to be modified to strike defendant’s one-year prison prior enhancement in light of the October 8, 2019 enactment of Senate Bill No. 136 (2019-2020 Reg. Sess.), which applied retroactively to all judgments, including defendant’s judgment, which were not final on appeal when the legislation went into effect on January 1, 2020. To the last point, the Court of Appeal concurred, the enhancement should have been stricken in light of the Bill. In all other respects, the Court affirmed judgment.
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