Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. SC60895
Jones, P.J.
Appellant John M. Fotinos appeals his felony conviction for grand theft (Pen. Code, § 487, subd. (a)). We appointed counsel to represent him on appeal. Counsel presents no argument for reversal, but asks this court to conduct an independent review of the record in accordance with People v. Wende (1979) 25 Cal.3d 436, 441-442. Counsel informed appellant that he had the right to file a supplemental brief on his own behalf, but appellant declined to do so.
Unless otherwise noted, all further references are to the Penal Code.
Pursuant to People v. Kelly (2006) 40 Cal.4th 106, 112, we provide “a brief description of the facts and procedural history of the case, the crime[ ] of which the defendant was convicted, and the punishment imposed.” (Id. at p. 110.) We also include information about certain motions and other aspects of the trial court proceedings that may become relevant in future proceedings. (Id. at p. 112.)
William Tyrrell owned a piece of property in Half Moon Bay where he kept a dump truck. In late 2000, Tyrrell told appellant, his friend, that he was considering selling the truck. Tyrrell later asked appellant to sell the truck for him and appellant agreed. To facilitate the sale, Tyrrell signed the title document and gave it to appellant. Tyrrell believed that it would be easier for appellant to sell the truck if the buyer could receive title at the time of purchase.
In early 2001, Tyrrell learned that appellant had not sold the truck. At that time, appellant volunteered to store the truck at his grandmother’s property in Pescadero and put it on the market at a later time. Tyrrell agreed. About one year later, Tyrrell asked appellant about the truck. In response, appellant told him that the truck was inoperable because a mouse had crawled underneath the dashboard and chewed up the wiring. Tyrrell trusted appellant and believed he was telling the truth.
More time passed. Several months after May 2003, Tyrrell began to doubt that appellant was being truthful, so he called appellant and told him that he had found someone who would buy the truck in its current condition. In response, appellant told Tyrrell that the truck had “rusted away to nothing.” At that point, Tyrrell went to the Department of Motor Vehicles (DMV) and learned that his truck had been sold in February 2001 to a plumbing company. In the first part of June 2004, Tyrrell spoke to Ivan Grosshauser, an Inspector for the San Mateo County District Attorney’s office, to report the crime. Tyrrell told Grosshauser that he had “recently” received the information about the sale of his truck from the DMV. Later that month, Grosshauser spoke to Frank Salazar, the owner of the plumbing company. Salazar told Grosshauser that he purchased the truck from appellant in February 2001 for $7,500. He also told Grosshauser that a picture of the truck was on his website. Grosshauser printed a picture of the truck from Salazar’s website and showed it to Tyrrell, who said that the truck looked like his truck. At Tyrrell’s request, Grosshauser delayed preparing his investigative report. Some time after June 2004, Tyrrell filed a civil lawsuit against appellant.
In August 2004, Grosshauser spoke to appellant on the telephone. Appellant told Grosshauser that he sold the truck and kept the money, despite the fact that he and Tyrrell had not agreed that appellant would retain any portion of the funds generated from the sale. Appellant also admitted telling Tyrrell that the truck had rusted away and was “gone.”
Tyrrell’s lawsuit against appellant ended in July 2005 in Tyrrell’s favor. In September 2005 — shortly after Grosshauser learned that a judgment against appellant had been entered in the civil action — he prepared a report summarizing his investigation. Grosshauser gave the report to the prosecutor, who asked Grosshauser to obtain transcripts from the civil trial. Grosshauser complied.
On April 17, 2006, the People filed a complaint charging appellant with one count of grand theft in violation of section 487, subdivision (a). At the conclusion of the preliminary hearing, the magistrate held appellant to answer the charge and the People filed an information charging appellant with one count of violating section 487, subdivision (a). The information also alleged that the violation occurred in February 2001 but was not discovered until May 2003. According to the information, neither Tyrell nor any law enforcement agency “had actual or constructive knowledge of said violation prior to [May 2003] because defendant lied to [Tyrrell] regarding [the] status of the embezzled property to conceal the embezzlement, within the meaning of . . . section 803, [subdivision] (c)(1).”
Section 803, subdivision (c)(1) provides in relevant part: “A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison, a material element of which is fraud or breach of a fiduciary obligation . . . including, but not limited to, the following offenses: [¶] (1) Grand theft of any type. . . .”
In July 2006, appellant filed a motion to set aside the information pursuant to section 995. He argued that he was denied the right to cross-examine Grosshauser on the statute of limitations issue. After a hearing in September 2006, the court denied the motion. Appellant also filed a motion to dismiss based upon “prejudicial delay; and vindictive prosecution.” Appellant contended that the “state unlawfully delayed in investigating and filing the charge” against him and that the charges were brought as a result of Grosshauser’s “personal animus” toward him. The court heard and denied both motions.
Appellant then waived his right to a jury trial and submitted the case on the preliminary hearing transcript. The court found appellant guilty of violating section 487, subdivision (a). Pursuant to the parties’ stipulation, the court later amended the minutes to indicate that the court had found the section 803, subdivision (c)(1) allegation true.
In December 2007, the court placed appellant on probation for three years.
DISCUSSION
We have examined the entire record and are satisfied that no arguable issues exist. The court properly denied appellant’s section 995 motion. Appellant had a meaningful opportunity to cross-examine Grosshauser at the preliminary hearing regarding the date Tyrrell discovered the offense. When appellant inquired into Tyrrell’s motivation for contacting the DMV, the court sustained the prosecutor’s relevance objection, but this ruling did not rise to the level of a deprivation of a right to cross-examine. (Currie v. Superior Court (1991) 230 Cal.App.3d 83, 98, 100; Jennings v. Superior Court (1967) 66 Cal.2d 867, 874.) Additionally, there was sufficient evidence at the preliminary hearing to support the section 803, subdivision (c)(1) allegation.
The denial of appellant’s motion to dismiss for pre-accusation delay was also proper because appellant failed to demonstrate prejudice from the delay in filing the complaint. (See generally 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) XIV, Delay Before Accusation, § 282, p. 432.) In addition, the court’s denial of appellant’s motion to dismiss based on vindictive prosecution was proper because appellant failed to present evidence that the “‘“prosecutor’s charging decision was motivated by a desire to punish [him] for doing something the law plainly allow[ed] [the prosecutor] to do. [Citations.]’”” (People v. Michaels (2002) 28 Cal.4th 486, 515.)
Appellant expressly waived his right to a jury trial in open court. (People v. Rodriguez (1969) 275 Cal.App.2d 946, 950-951.) Before he did so, the court explained appellant’s right to a jury trial. The court also explained the consequences of submitting on the preliminary transcript and described the constitutional rights appellant would waive if he submitted on the transcript. (Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122, superseded by statute on another point in People v. Carty (2003) 110 Cal.App.4th 1518, 1524; see also Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605.)
The judgment is affirmed.
We concur: Simons, J., Dondero, J.
Judge of the Superior Court of the City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 487, subdivision (a) defines grand theft as “[w]hen the . . . personal property taken is of a value exceeding four hundred dollars ($400). . . .”