Opinion
H047275
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW LIONEL TRUJILLO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1903624)
Defendant Andrew Lionel Trujillo was convicted of two counts of felony taking or unauthorized use of a vehicle with the intent to temporarily deprive the owner of possession (Veh. Code, § 10851, subd. (a)) after evidence connected him to a short-lived car theft at a Toyota dealership. On appeal, Trujillo's appointed counsel has filed an opening brief in which no issues are raised and has asked this court to independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Trujillo of his right to submit written argument on his own behalf within 30 days of the date of filing of the opening brief. We have received no communication from him in the time allotted.
We have conducted an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436 and have found no arguable issues that would result in a disposition more favorable to Trujillo. We will provide "a brief description of the facts and procedural history of the case, the crimes of which the defendant was convicted, and the punishment imposed." (People v. Kelly (2006) 40 Cal.4th 106, 110.)
FACTUAL AND PROCEDURAL BACKGROUND
The Santa Clara County District Attorney charged Trujillo by felony complaint on February 27, 2019, with two counts of "taking or unauthorized use of a vehicle with intent to temporarily deprive owner of possession" in violation of Vehicle Code section 10851, subdivision (a).
The charges stemmed from an incident occurring early in the morning of May 20, 2018, at a Toyota dealership in Milpitas. Officers responded to the report of an unauthorized person on the dealership lot. The suspect arrived in what was later discovered to be a stolen, United Rentals truck. The suspect left the truck unlocked, unoccupied, and still running at the vehicle entrance of the dealership. The suspect entered the premises and opened an unlocked Toyota Prius. He drove the Prius around the dealership lot and was confronted by a uniformed police officer who directed him to stop. The suspect ignored the officer's commands and kept driving, then exited the vehicle and fled the scene on foot. He scaled a chain link fence and crossed the median of Interstate 880, at which point officers lost sight of him.
Evidence recovered at the scene tied Trujillo to the incident. A set of keys and fitness club badge in the truck belonged to an Andrew Trujillo and matched Trujillo's address listed with the Santa Clara County Probation Department. Other items found in the truck included a Costco membership card, later found to belong to Trujillo's father, and various tools. A headlamp left in the Prius was similar or identical to one worn by the suspect and seen on surveillance video from the car dealership and by officers on the scene. The headlamp was processed for DNA, which matched an Andrew Trujillo who had multiple previous arrests for possession of stolen vehicles.
Further investigation also connected Trujillo to the evidence recovered, the surveillance footage, and the responding officer's observations of the suspect's height, weight, skin tone, and facial structure. The investigating officer located and spoke with Trujillo. Trujillo claimed that his keys and tool bags had been stolen from his car a few days earlier and that he had flown to Washington state and was there at the time of the thefts. Trujillo was not able to describe the tool bags that he claimed had been stolen or provide proof of his trip. He believed that someone whom he knew only as "Joe" looked very similar to him and had stolen his keys and was trying to frame him. He did not know how his DNA had gotten onto the headlamp worn by the suspect. Trujillo refused to submit to a buccal swab.
Trujillo agreed to submit his case for decision by the trial court pursuant to Bunnell v. Superior Court (1975) 13 Cal.3d 592, 604 on the basis of police and crime lab reports. The trial court advised Trujillo of his constitutional rights to a preliminary hearing and a jury trial, among others, and found his waiver of rights to be knowing, intelligent and voluntary. After examining the police reports and physical evidence examination report prepared by the County of Santa Clara Crime Laboratory, the trial court found Trujillo guilty of both charged offenses. The prosecutor noted that the intent, in Trujillo's submitting the case for decision under Bunnell was for his sentence to be concurrent to his recent conviction in another case.
At sentencing on August 21, 2019, in this matter, the trial court imposed the court-indicated sentence of the midterm of two years on each count, to be served in county jail concurrent with Trujillo's sentence in the other case. The court calculated a total of 113 credits for time served based on 57 actual days plus 56 conduct credits and ordered Trujillo to supply a buccal swab and other biological samples pursuant to Penal Code section 296.
During the sentencing hearing, Trujillo asserted a present inability to pay the assessments and fees in his cases and sought relief under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). The court stated that it would "waive or impose a stay of fines and fees under the Dueñas matter." The court imposed but stayed an $8 emergency medical air transportation fine under Government Code section 76000.10, an $80 court security fee under Penal Code section 1465.8, and a $60 criminal conviction assessment fee under Government Code section 70373. The court imposed a restitution fine of $300 pursuant to Penal Code section 1202.4, subdivision (b)(2).
Trujillo timely appealed on September 11, 2019. Trujillo's appellate counsel later submitted a letter to the trial court pursuant to Penal Code section 1237.2, which provides that a defendant first seek correction in the trial court of an error in the imposition of fines, penalty assessments, fees or costs. The trial court issued a corrected sentencing order on January 17, 2020, reflecting that the court security fee, criminal conviction assessment, and emergency medical air transportation fine were waived, rather than imposed but stayed, in accordance with Dueñas. The trial court also stayed the $300 restitution fine.
DISCUSSION
We have conducted an independent review of the record pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly, supra, 40 Cal.4th 106, and have concluded that there are no arguable issues. Given the divergence in opinion—including in this district—as to whether Dueñas was correctly decided (see, e.g., People v. Petri (2020) 45 Cal.App.5th 82, 90-91 [citing conflicting conclusions among the Courts of Appeal and noting the California Supreme Court's grant of review in related cases]), the trial court's application of Dueñas for the defendant's benefit does not create an arguable issue on appeal.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Danner, J.