People v. Trujillo CA2/2 ( 2022 )

Filed 8/26/22 P. v. Trujillo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B315941
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA147650)
v.
JIMMY RAY TRUJILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Debra Cole-Hall, Judge. Reversed and
remanded with directions.
Micah Reyner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J. Michael
Lehmann, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________
Jimmy Ray Trujillo appeals the judgment entered following
a jury trial in which he was convicted of shooting at an occupied
vehicle (Pen. Code,1 § 246; count 2) and assault with a firearm
(§ 245, subd. (a)(2); count 3).2 At sentencing, the trial court noted
appellant’s prior convictions and criminal history as detailed in
the probation report and sentenced appellant to the upper term of
seven years in state prison on count 2, and pursuant to section
654, the court imposed and stayed a term of five years on count 3.
Appellant filed a timely notice of appeal.
On January 1, 2022, while this appeal was pending, two
amendments to the Penal Code regarding sentencing took effect.
Senate Bill No. 567 amended section 1170, subdivision (b) in two
ways: First, it makes the middle term the presumptive term
except when circumstances in aggravation justify imposition of
the upper term and “the facts underlying those circumstances
have been stipulated to by the defendant, or have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.”3 (§ 1170, subd. (b)(1) & (2), as amended by Sen. Bill
No. 567 (2021–2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.)
Second, if any of certain specified circumstances was “a
1 Undesignated statutory references are to the Penal Code.
2 Prior to trial, the trial court granted the prosecution’s
motion to dismiss the prior serious felony conviction (§§ 667,
subds. (a)(1), (d), 1170.12, subd. (b)) and prior prison term
allegations (§ 667.5, subd. (b)), as well a firearm enhancement
allegation (§ 12022.5).
3 However, “the court may consider the defendant’s prior
convictions in determining sentencing based on a certified record
of conviction without submitting the prior convictions to a jury.”
(§ 1170, subd. (b)(3).)
2
contributing factor in the commission of the offense,” the court
must impose the lower term unless the court finds aggravating
circumstances outweigh the mitigating circumstances such that
imposition of the lower term would be contrary to the interests of
justice. (§ 1170, subd. (b)(6), added by Sen. Bill No. 567 (2121–
2022 Reg. Sess.); Stats. 2021, ch. 731, § 1.3.)
Assembly Bill No. 518 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 441, § 1) amended section 654 by removing the requirement
that a trial court must impose sentence under the provision of
law providing for the longest term of imprisonment and granting
the trial court discretion to impose punishment under any
applicable provision of law.
Appellant contends and the People agree that appellant’s
case should be remanded for resentencing to permit the trial
court to reconsider appellant’s sentence in light of the recent
amendments to sections 1170 and 654. We agree and remand the
matter for resentencing.
FACTUAL BACKGROUND
On May 1, 2018, Stephen Rodriguez was sitting in his car
in his driveway when a silver car pulled up in the middle of the
street and someone in the car fired shots toward Rodriguez. The
shooter had a small handgun that was “probably” black.
Rodriguez was not struck by any bullets, and after the shooter
drove away, Rodriguez went to a friend’s house. The friend called
911, and Rodriguez spoke to a 911 operator.
Rodriguez and appellant had been friends, but their
friendship had become strained because of issues relating to
appellant’s employment, appellant’s relationship with his wife,
and his wife’s threats to have sex with Rodriguez. Rodriguez
recalled that appellant drove a silver Chevy at the time of the
3
shooting. The day before the shooting, Rodriguez had become
angry with appellant over appellant’s refusal to return a piece of
exercise equipment that belonged to Rodriguez. Appellant and
Rodriguez exchanged angry text messages before and after the
shooting.
Appellant was arrested the day after the shooting.
Appellant’s car was impounded, and particles consistent with
gunshot residue were found in the car. Police also seized
appellant’s cell phone from his pocket at his arrest. Photographs
on the phone from April 2018 showed appellant holding a black
handgun. The phone’s Internet search history showed that in the
hours after the shooting, a search was made for the phrase “if you
shoot a gun at someone, but miss, what will you be charged
with[?]” Another search accessed a Web site containing the text,
“nine things you may not know about assault with a deadly
weapon, Penal Code 245(a)(1).”
Rodriguez identified appellant from a photo line-up as the
shooter and identified a photo of appellant’s car as that of the
shooter.
DISCUSSION
Remand for Resentencing Is Necessary to
Permit the Trial Court to Reconsider
Appellant’s Sentence in Light of the
Recent Amendments to Penal Code
Sections 1170 and 654
We agree with the parties that appellant, whose judgment
is not yet final, is entitled to retroactive application of the
ameliorative changes to sections 1170 and 654 that took effect
pursuant to Senate Bill No. 567 and Assembly Bill No. 518 on
January 1, 2022. (People v. Flores (2022) 73 Cal.App.5th 1032,
4
1039 [“The People correctly concede the amended version of
section 1170, subdivision (b) that became effective on January 1,
2022, applies retroactively in this case as an ameliorative change
in the law applicable to all nonfinal convictions on appeal”];
People v. Mani (2022) 74 Cal.App.5th 343, 379 [“Because
Assembly Bill 518 was enacted while defendant’s appeal was not
yet final and it provides the trial court new discretion to impose a
lower sentence, defendant is entitled to its ameliorative benefit”];
see People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)
Appellant’s upper term sentence on count 2 is inconsistent
with the amendments to section 1170, subdivision (b) because
there is no indication in the record that the aggravating
circumstances were proved to a jury beyond a reasonable doubt,
admitted by appellant, or were circumstances relating to
appellant’s prior convictions based on a certified record of
convictions. (§ 1170, subd. (b)(1), (2) & (3).) Indeed, it appears
that the trial court’s consideration of appellant’s prior criminal
history was based on its review of the probation report, not on
certified records of conviction. In addition, based on the newly
added provisions in section 1170, subdivision (b)(6), appellant’s
counsel may be able to argue different factors in mitigation that
would require imposition of the lower term on count 2.
Remand is therefore appropriate in this case to permit the
trial court to resentence appellant in accordance with Senate Bill
No. 567’s amendments to section 1170 as well as the changes to
section 654 effected by Assembly Bill No. 518. (People v. Jones
(2022) 79 Cal.App.5th 37, 45 (Jones).)
On remand, the trial court must fully resentence appellant
on all counts in accordance with the full resentencing rule
described by our Supreme Court in People v. Buycks (2018) 5
5
Cal.5th 857. The full resentencing rule directs that “when part of
a sentence is stricken on review, on remand for resentencing ‘a
full resentencing as to all counts is appropriate, so the trial court
can exercise its sentencing discretion in light of the changed
circumstances.’ ” (Buycks, at p. 893.) “As more commonly
applied, the full resentencing rule allows a court to revisit all
prior sentencing decisions when resentencing a defendant.”
(People v. Valenzuela (2019) 7 Cal.5th 415, 424–425; Buycks, at
p. 893.) This includes “revisiting such decisions as the selection
of a principal term, whether to stay a sentence, whether to
impose an upper, middle, or lower term, and whether to impose
concurrent or consecutive sentences.” (Jones, supra, 79
Cal.App.5th at p. 46; Valenzuela, at p. 425.)
6
DISPOSITION
The judgment is reversed and the matter is remanded for
resentencing.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
7