Filed 10/26/20 P. v. Cuevas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN CUEVAS,

Defendant and Appellant.

B292935, consolidated

with B299705

Los Angeles County

Super. Ct. No. PA090576

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Michael Terrell, Judge. Affirmed as 

modified.

N. Noelle Francis, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Paul M. Roadarmel, Jr., and 

David A. Wildman, Deputy Attorneys General, for Plaintiff 

and Respondent.

_________________________
2

A jury convicted Adrian Cuevas of felony assault with 

a deadly weapon and misdemeanor vandalism. He appeals 

and we affirm the judgment as modified.

BACKGROUND

An information charged Cuevas with felony assault with 

a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)); misdemeanor 

vandalism (§ 594, subd. (a)); and making a criminal threat (§ 422, 

subd. (a)). The information alleged Cuevas had served three 

prior prison terms. (§ 667.5, subd. (b).)

On October 21, 2017, Cuevas, then 35 years old, lived in 

a second-story apartment with his 68-year-old mother, Emilia 

Alvarez. Alvarez testified Cuevas was drinking beer, and got 

upset because she had forgotten his birthday. Cuevas went into 

her bedroom and threatened to throw out all her things. He 

threw objects around, hit the wall, punched a hole in the window 

screen, and tossed a radio, a jar of face cream, and small 

decorative plates out of the window and into the alley below. 

Cuevas told her: “ ‘I’m going to finish everything off here and 

then you’ll be left for me to do.’ ” Alvarez was afraid he would

hit her.

Standing in the bedroom doorway, Alvarez saw Cuevas

start to lift a large portable air conditioning unit that was on 

the floor. Frightened, she ran outside and called 911. She told 

the operator her son was breaking everything and throwing 

things at her, he was under the influence of drugs, and she was 

afraid, although she had managed to get out before he hit her 

with anything. She called 911 a second time to ask when the 

police would arrive.

1 All subsequent statutory references are to the Penal Code

unless otherwise indicated.
3

The prosecutor asked Alvarez if she remembered telling 

Los Angeles Police Department Officer Oscar Amaro that Cuevas 

picked up the air conditioning unit and threw it at her from six 

or seven feet away, making her move out of the way to avoid 

getting hit. Alvarez replied that Cuevas “couldn’t lift that air 

conditioning unit because [Cuevas] is sick from his back.”

On cross-examination, Alvarez said Cuevas was drunk. 

She called the police because she was angry and wanted him out 

of the house. Cuevas was breaking glasses and throwing things 

out the window. He tried to lift the air conditioner and let it go. 

He did not lift it to his shoulders or try to throw it at her. The 

unit was about three feet high and eighteen inches wide, and she 

had wheeled it into her bedroom from the living room. She had 

not been afraid he would throw it at her, or that he would hurt 

her. When Cuevas drank, she was afraid he might hurt himself 

or her, or hurt her dog (as he had done before).

Officer Ian Cochran testified that when he and his partner

responded to the apartment, they found Alvarez in the alley 

behind the apartment building, visibly shaken and angry. In 

broken English, she said her son had vandalized some of her 

property. The police told Alvarez to stay in the alley and went 

upstairs to the apartment. No one answered their knock and

they opened the unlocked door. Cuevas was pacing back and 

forth in the hall and refused to go outside to talk. He appeared 

to be under the influence of alcohol or drugs. He yelled at the 

officers for 35 minutes, taking a shooting stance and pointing his 

cell phone at them.

After the officers called for backup, Cuevas complied and 

was arrested. Officer Cochran, his partner, and Officer Amaro

walked through the apartment with Alvarez. Her bedroom had 
4

been ransacked with things strewn around the room. The

window screen was broken and the alley below was littered 

with broken plates.

A portable air conditioning unit lay on the bedroom floor 

with panels broken off, several feet from the doorway. Officer 

Cochran, who was six feet tall and weighed 190 pounds, lifted 

the unit to his shoulder to test its weight. Cuevas was about 

five feet eight inches tall, and weighed about 190 pounds.

Officer Amaro testified he responded to the back up call 

and interviewed Alvarez in Spanish. She was frightened but 

cooperative and provided details. Alvarez said when she 

confronted Cuevas in her bedroom, he picked up the portable 

air conditioning unit, lifted it to shoulder height, and threw it 

at her from six or seven feet away. This was inconsistent with 

her testimony at trial.

Two days later, Officer Jay Balgemino called Alvarez and 

spoke to her in English. She confirmed that Cuevas threw an 

air conditioning unit at her.

On November 4, 2017, Cuevas called Alvarez from jail. 

Cuevas said investigators were going to interview her, and he 

had heard she was going to say he threw the air conditioning unit 

at her. Cuevas said he told the investigators he picked the unit 

up, it felt very heavy because he was drunk, it strained his back, 

and “ ‘well, I threw it to the—it fell to the floor.’ ” Cuevas warned

Alvarez she would have to be up in front answering questions

for several days. When Alvarez replied she could not miss work 

because “[t]he lady needs me,” Cuevas told her not to go to court 

and not to answer if they called. If she did talk to investigators,

“[J]ust say . . . that, well, that I didn’t throw it at you and that it 
5

fell on the floor and that . . . just don’t go to court because that’s 

where they want to screw me over.”

Four months later, Alvarez testified at the preliminary 

hearing Cuevas “tried to pick . . . up [the air conditioning unit], 

but it was too heavy for him, and I ran out of the room thinking 

he was going to try to hit me with it.”

In a July 2016 incident, Cuevas pushed Alvarez and made 

her fall. She screamed and someone called the police. When the 

police arrived, they heard her screaming inside the apartment

and kicked in the door. Cuevas was pulling Alvarez by the arms 

toward the rear bedroom. She broke away, ran toward the 

officers, and waited by the outside stairs. Crying, scared, and 

cooperative, Alvarez told the officers Cuevas took her phone away 

to stop her from calling 911. He grabbed her arms, pushed her 

into the living room, threw her to the floor, pulled her away 

from the front door, and locked it. Her stomach and knees 

were injured.

In closing, the prosecutor argued that Cuevas abused

Alvarez. Cuevas called her from jail and told her to lie for him. 

At trial, she struggled between protecting him and protecting 

herself, contradicting the statements she made to the officers and 

at the preliminary hearing. Defense counsel argued Alvarez’s 

contradictory stories created a reasonable doubt whether Cuevas 

threw the air conditioner at her.

The jury convicted Cuevas of assault with a deadly weapon 

and vandalism, and acquitted him of making criminal threats. 

After finding true one of the prior prison term allegations, the

trial court sentenced Cuevas to state prison for five years (the 

upper term of four years for assault, and one year for the prior 

prison term enhancement). For the misdemeanor vandalism, 
6

the court imposed 364 days in county jail to run concurrent 

to the prison term. Cuevas received 684 days of presentence 

custody credit.

DISCUSSION

1. Sufficient evidence supports the conviction for 

assault with a deadly weapon

Cuevas does not argue the air conditioning unit was not 

a deadly weapon. He contends there was insufficient evidence 

he had the present ability to throw the air conditioning unit 

at Alvarez.

“Any person who commits an assault upon the person of 

another with a deadly weapon or instrument other than a firearm 

shall be punished by imprisonment in the state prison for two, 

three, or four years . . . .” (§ 245, subd. (a)(1).) “An assault is 

an unlawful attempt, coupled with a present ability, to commit 

a violent injury on the person of another.” (§ 240.) “ ‘Once 

a defendant has attained the means and location to strike 

immediately he has the “present ability to injure.” ’ ” (People v. 

Chance (2008) 44 Cal.4th 1164, 1174.) Immediately does not 

mean instantaneously: “[W]hen a defendant equips and positions 

himself to carry out a battery, he has the ‘present ability’ 

required . . . if he is capable of inflicting injury on the given 

occasion, even if some steps remain to be taken, and even if 

the victim or the surrounding circumstances thwart the infliction 

of injury.” (Id. at p. 1172; People v. Nguyen (2017) 12 Cal.App.5th 

44, 48.) “Thus, an assault can occur even when the defendant 

makes no contact with the victim.” (In re Raymundo M. (2020) 

52 Cal.App.5th 78, 85.) Whether a defendant is within striking 

distance is a question for the trier of fact. (Id. at p. 87.)
7

Cuevas argues the evidence was insufficient to support a 

finding he had the present ability to pick up the air conditioning 

unit and throw it far enough to seriously injure Alvarez, because 

the unit was heavy and no evidence suggested he was capable 

of this “extraordinary feat.” But the unit lay broken several feet 

from the doorway where Alvarez stood. She told Officer Amaro 

Cuevas threw the unit at her from six or seven feet away. Two 

days later she confirmed to Officer Balgemino that Cuevas threw 

the unit at her. Then Cuevas called Alvarez from jail and told 

her not to talk to investigators or go to court, and to say he did 

not throw the unit. At trial Alvarez testified Cuevas did not lift 

the unit or try to throw it at her. The jury could reasonably 

disbelieve this testimony, given under pressure from her son and 

contradicted by her statements to the officers. Officer Cochran, 

who weighed the same as Alvarez, picked up the air conditioning 

unit and held it at shoulder height. There was no evidence how 

much the unit weighed, or that it was physically impossible for 

Cuevas to lift it and throw it at Alvarez.

Substantial evidence in the record supports the conclusion 

that Cuevas had the present ability to seriously injure Alvarez. 

He attained the means when he picked up the air conditioning 

unit, and at six or seven feet away he was close enough to strike 

by throwing the unit at Alvarez.

2. The one-year prior prison term enhancement must 

be stricken

Cuevas received a one-year sentence enhancement under 

section 667.5, subdivision (b) for having served a prior prison 

term for a felony conviction. Effective January 1, 2020, Senate 

Bill No. 136 amended section 667.5, subdivision (b) to apply only 

if the prior prison term was served for a sexually violent offense. 
8

(Sen. Bill No. 136 (2019-2020 Reg. Sess.) § 1.) Senate Bill 

No. 136 applies to Cuevas, whose conviction was not final on 

January 1, 2020. (People v. Winn (2020) 44 Cal.App.5th 859, 872-

873.) Cuevas is entitled to the retroactive benefit of the change 

in the law. And as the trial court imposed the maximum possible 

sentence, we need not remand for resentencing, but may simply 

strike the one-year enhancement. (Id. at pp. 873-874.)

3. No hearing is required on Cuevas’s ability to pay 

fines and fees

At sentencing, with no objection from Cuevas, the trial 

court stated: “[T]he defendant must pay the mandatory fees 

and fines. There’s a restitution fine of $300 [§ 1202.4, subd. (b)]; 

a parole revocation restitution fine [§ 1202.45] in the same 

amount, but that’s stayed until parole is revoked and he is 

returned to prison. [¶] A criminal conviction/facilities assessment 

of $30 [on each count, Gov. Code, § 70373], a court security fee 

of $40 [on each count, § 1465.8, subd. (a)(1)], and a crime 

prevention fine of $10 [§ 1202.5].” The minute order, however, 

contains an additional court cost of $29 and a $2 criminal fine 

surcharge [§ 1465.7], which also appear in the abstract of 

judgment. The oral pronouncement of sentence controls over 

the minute order or abstract of judgment. (People v. Zackery 

(2007) 147 Cal.App.4th 380, 385.) Respondent concedes we 

therefore must strike the $29 court fee. Without that fee, 

the fines and fees for the two counts of conviction total $450

(excluding the suspended parole revocation restitution fine).

On May 16, 2019, while this appeal was pending, Cuevas 

moved the trial court pursuant to section 1237.2 and People v. 

Dueñas (2019) 30 Cal.App.5th 1157, to stay the execution of 

the restitution fine and vacate or suspend the fees imposed at 
9

sentencing. At the hearing, Cuevas argued he was unemployed 

when he was arrested and had no ability to pay fines and fees. 

The trial court pointed out Section 1237.2 provides the trial court 

retains jurisdiction after a notice of appeal is filed to correct 

any error in fines or fees “where the erroneous imposition or 

calculation of fines, penalty assessments, surcharges, fees, or 

costs are the sole issue on appeal.” (§ 1237.2.) As Cuevas had 

filed an appeal raising other issues, the court concluded it did not 

have jurisdiction. In the alternative, the court found Cuevas had 

the ability to pay the fines and fees because he could earn prison 

wages during his time in state prison, citing People v. Johnson 

(2019) 35 Cal.App.5th 134, 139-140. The court denied the motion 

and Cuevas appealed. We consolidated the two appeals.

As a general rule, “an appeal from an order [or judgment] 

in a criminal case removes the subject matter of that order [or 

judgment] from the jurisdiction of the trial court.” (Anderson 

v. Superior Court of Solano County (1967) 66 Cal.2d 863, 865; 

see also § 1235, subd. (b) [“An appeal from the judgment or 

appealable order in a felony case is to the court of appeal for 

the district in which the court from which the appeal is taken 

is located.”].) Section 1237.2 is an exception to this general rule.

(See § 1237 [providing in part that “[a]n appeal may be taken by 

the defendant from . . . the following: [¶] (a) Except as provided 

in Sections 1237.1, 1237.2, and 1237.5, from a final judgment 

of conviction”].) However, if issues other than the imposition 

or calculation of such fines, assessments, and fees are being 

appealed, the limited exception provided by section 1237.2 

to section 1235 no longer applies. (See People v. Jordan

(2018) 21 Cal.App.5th 1136, 1142 [recognizing that § 1237.2 

“mandate[s] that a defendant timely raise his [or her] 
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penalty assessment claims to conserve judicial resources and 

efficiently present claims in a single forum”].)

Here, the limited exception provided by section 1237.2 

did not apply because Cuevas’s first appeal is not limited to an 

error in the imposition or calculation of fines, assessments, and 

fees. As such, the trial court was correct—it lacked jurisdiction 

to rule on his motion to vacate the fines and fees. Because the 

trial court did not err, we affirm the order challenged in the 

second appeal and decline to reach Cuevas’s constitutional 

challenges to the fines and fees imposed at sentencing.
11

DISPOSITION

The judgment is modified to strike the one-year sentence

enhancement under section 667.5, subdivision (b), and to strike 

the court cost of $29. In all other respects, the judgment is 

affirmed.

The trial court shall issue an amended abstract of 

judgment as set forth above, and shall send a certified copy of 

the amended abstract to the Department of Corrections and 

Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN, J.