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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication
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                                                       COPY

              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



2 The jury did not make a finding regarding the allegation that defendant personally
discharged a firearm. (§ 12022.53, subd. (c).)

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enhancement was used to sentence him to 15 years to life. We conclude that defendant
has forfeited his constitutional challenge to his sentence. We order the abstract amended
to strike the gang enhancement (§ 186.22, subd. (b)(1)) from the list of enhancements but
to include a reference to section 186.22, subdivision (b)(4), pursuant to which defendant
was sentenced.
                 FACTUAL AND PROCEDURAL BACKGROUND
       About midnight on July 20, 2010, defendant, a validated Norteño gang member,
and several other Norteño gang members went to a house occupied by the victim and
others. The victim got up to investigate a loud noise and when he went outside, he
encountered 12 people. The victim saw defendant holding a gun. Six shots were fired at
the victim and the house. Another occupant of the house was affiliated with the Sureños,
and he had fought with defendant on the previous day.
       On July 21, 2010, “West Side Modesto” Sureño gang member Ricardo Castillo
and his friend stopped at a gas station across the street from a fast-food restaurant where
defendant and several of his fellow Norteño gang members were. After gang signs and
affiliations were exchanged, a physical fight ensued. Castillo suffered six stab wounds.
                                      DISCUSSION
                      I. Claim of Cruel and Unusual Punishment
       At the time of the offenses, defendant was three months shy of being 19 years of
age. Defendant contends his sentence on count two, shooting at an inhabited dwelling
and the firearm use enhancement constitutes cruel and unusual punishment under People
v. Dillon (1983) 34 Cal.3d 441 (Dillon). The People respond that the issue is forfeited
because at sentencing, defendant did not raise this fact-specific challenge to his sentence.
Defendant acknowledges that his attorney did not raise a Dillon-based cruel or unusual
punishment claim at sentencing but argues his claim should be considered on the merits
“to forestall a subsequent claim of ineffective assistance of counsel.” (Italics added.) He
does not make an ineffective assistance of counsel claim on appeal.

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         We conclude that defendant’s claim of cruel and unusual punishment made for the
first time on appeal is forfeited. (People v. Burgener (2003) 29 Cal.4th 833, 886
[defendant forfeits a federal constitutional argument by failing to object on such grounds
in the trial court]; People v. Norman (2003) 109 Cal.App.4th 221, 229 [“[c]ruel and[/or]
unusual punishment arguments, under the federal or California tests, require examination
of the offense and the offender”]; People v. DeJesus (1995) 38 Cal.App.4th 1, 27 [Dillon-
based challenge is “fact specific” and “must be raised in the trial court”; otherwise, it is
forfeited]; People v. Kelley (1997) 52 Cal.App.4th 568, 583.)
                                II. Amendment of Abstract
         For shooting at an inhabited dwelling with the gang enhancement, the court orally
imposed 15 years to life pursuant to section 186.22, subdivision (b)(4), and the abstract
accurately reflects the sentence of 15 years to life. However, the trial court failed to
address the section 186.22, subdivision (b)(1), enhancement, and although not orally
ordered by the trial court, the abstract reflects that that enhancement was stayed.
Defendant claims the abstract requires modification, striking the gang enhancement. We
agree.
         When a defendant is convicted of a felony violation of section 246 with a finding
that the offense was committed for the benefit of a gang, the defendant is subject to the
penalty provision of section 186.22, subdivision (b)(4), which mandates an indeterminate
term of life with a minimum term of 15 years. The gang enhancement (§ 186.22,
subd. (b)(1)) must be stricken. (People v. Louie (2012) 203 Cal.App.4th 388, 395-396.)
         The abstract must be amended to strike the section 186.22, subdivision (b)(1),
gang enhancement. Additionally, the abstract must be corrected to include a reference
that defendant was sentenced pursuant to section 186.22, subdivision (b)(4). Item 8 at the




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bottom of page one of the abstract should be completed to read: “Defendant was
sentenced pursuant to . . . other (specify): Pen. Code, § 186.22, subd. (b)(4).”3
                                       DISPOSITION
       The trial court is directed to prepare an amended abstract of judgment, striking the
gang enhancement (§ 186.22, subd. (b)(1)) and including a reference that defendant was
sentenced pursuant to section 186.22, subdivision (b)(4), as Item 8, and to forward a
certified copy of the modified abstract to the Department of Corrections and
Rehabilitation. The judgment is affirmed.



                                                         MURRAY                 , J.



We concur:



      BLEASE                 , Acting P. J.



      HULL                   , J.




3 We reject defendant’s contention that there is no place on the abstract to reference the
basis for the life sentence. Item 8 is the correct place on the abstract to note the basis for
the life sentence.

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