People v. Trujillo CA2/2

Filed 8/26/22 P. v. Trujillo CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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