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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or

or dered 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,

v.

EMANUEL O. CUENCA,

Defendant and Appellant. A1 62532 , A 162769

( Napa County Super. Ct.

No s

. CR183992, 20CR002592 )

MEMORANDUM OPINION 1

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 Code 2 section 240

.

Cuenca’s appointe d 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.

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

substantial issue of fact or law. (Cal

. Stds

. Jud

. Admin

. , § 8.1.)

2 All statutory references are to the Penal Code unless otherwise noted.2

A. Violation of Probation Case (CR183992)

On June 28 , 2017

, police responded to a report that a male, later

identified as Cuenc a, had assaulted a female on the street. T he female, S.C.

,

later told the police that she and Cuenca were sitting in Cue nca’s truck in a

parking lot, when h is “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 ple aded no contest to

a violation of section 148. 10, subdivisi on (a) (resisting a pea ce 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 d istrict a ttorney ’s o ffice filed a petition to

revoke probatio n. The petition alleged that Cuenca violated the terms of his

probation based on the assault detailed below

.

B. Assault Case (

20 CR 002592)

On September 25, 2020, M.O. , Cuenca’s friend and cowo rker,

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.3

The next day, M.O. received angry text messag es from Cuenca that

accused M.O. of breaking his cup holder. M.O. denied that he broke the cup

holder, but offered to pay for its repair if he did break it. Cuenca called M.O.

a liar and demanded that M.O. meet him at a house in St. Helena that

evening

. M.O. agreed. When M.O. arrived

, he followed Cuenca through a

side gate to the yard. M.O. testified that when he entered the yard, Cuenca

started to hit him. M.O. covered his face in defense but did not fight back.

Cuenca testified that the tw o of them were initially talking in the yard but

started to fight after M.O. pulled out a knife or box cutter from his pocket.

M.O. denie d that he had a knife with him that day.

After the fight, M.O. went home but did not tell anyone about the

incident. The next day, M.O. ’s uncle noticed his injuries and told him to go to

the police

. M.O. went to the police that afternoon and reported the incident

.
Cuenca was charged with assaul t by means likely to produce great

bodily injur y ( § 245, subd. (a)(4) ) and criminal threats (§ 422 )

. Following a

jury trial

, Cuenca was found guilty of the lesser included offense of simple

assault under section 240 and not guilty of criminal threats

. The trial court

sentenced Cuenca to 180 days in county jail

. The trial court also found

Cuenca to be in violation of his probation and granted the prosecution’s

petition to revoke probation. The trial court terminated probation and

sentenced Cuenca to four years and eight months in county jail

. Cuenca

received 748 da ys of credit towards this sentence

.
Cuenca timely appealed the sentencing orders in both cases.

The Wende brief filed by Cuenca’s counsel does not draw our attention

to any issues under Anders v. California (1967) 386 U.S. 738, 744. Cuenca

was apprised of his right to file a supplemental brief, but he failed to file

anything. Following Wende guidelines, we have conducted an independent4

review of the record and conclude there are no meritorious issues to be

argued on appeal. We note however, th at the March 25, 2021 order in case

number CR18 3992 states that the total term of Cuen c a’s sentence is four

years and therefore does not accurately reflect the trial court’s sentence of

four years and eight months

.

DISPOSITION

The trial court is ordered to correct its March 25, 2021 order in case

number 20CR183992 to reflect that the t o tal term of Cuenca’s sentence is

four years and eight months. The judgments are otherwise affirmed.

STREETER, Acting P. J.

WE CONCUR:

BROWN, J.

DESAUTELS, J. *

* Judge of the Superior Court of California, County of Alameda

, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.