People v. Padron

1

THE PEOPLE, Plaintiff and Respondent, v. CRUZITO PADRON, Defendant and Appellant.

F082727

California Court of Appeals, Fifth District

March 28, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County, No F19901192 Houry A. Sanderson, Judge.

Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY Acting P. J.

INTRODUCTION

A jury convicted appellant Cruzito Padron of multiple felonies after he held a knife to the victim's throat and carjacked the victim's vehicle, stealing other property belonging to the victim in the process. Appellant was sentenced to prison for an aggregate determinate term of 21 years.

Appellant raises several issues, including a claim that the trial court erred when it denied his motion to suppress evidence. Approximately 19 months after he was arrested, and while he remained in jail custody, the prosecution's investigator collected a buccal swab^[1] from appellant that contained appellant's deoxyribonucleic acid (DNA). This search occurred without a warrant. The trial court denied a motion to exclude the DNA evidence, determining that the government had the right to obtain this sample, at least in part because appellant was on probation from a prior felony conviction. At trial in this matter, appellant's DNA was matched to the knife used in this attack.

Appellant argues that the trial court erred in denying his motion. We reject this claim, along with a majority of appellant's other issues. However, we agree with the parties that, based on retroactive changes in certain sentencing laws, appellant's sentence must be vacated and this matter remanded for resentencing. We otherwise affirm.

BACKGROUND

We summarize the material facts that support appellant's judgment and which are relevant to appellant's arguments on appeal. We provide additional details later in this opinion when relevant to the issues raised.

I. Appellant Carjacks the Victim.

On February 18, 2019, the victim in this matter was sitting in his running vehicle outside his residence when appellant approached him and placed a knife to his throat. Appellant told the victim to give him his wallet and cell phone, and to get out of his vehicle. The victim was very frightened and he complied. Appellant drove away in the victim's vehicle, taking with him the victim's wallet and cell phone.

II. Appellant Crashes the Stolen Vehicle.

Appellant did not possess a valid California driver's license when he drove the victim's vehicle. A short time after stealing this car, he crashed it in a rollover accident. He destroyed 14 rows of grape vines and he sheared off a power pole. The vehicle suffered major damage.

III. Appellant is Arrested.

This carjacking occurred in Selma, California, at approximately 9:50 p.m. Law enforcement was dispatched to the victim's residence at about 9:55 p.m.

At about 10:00 p.m., law enforcement was dispatched to the crash site with a report of an overturned vehicle. Appellant had crashed the victim's vehicle about two to three miles from the victim's residence. When law enforcement arrived, nobody was in the vehicle. The crash site was in a rural area.

At about 10:45 p.m., law enforcement received a call regarding a "suspicious" person walking in a roadway about a mile or two outside of Selma. At about 11:00 p.m. that night, or a little before, law enforcement officers made contact with appellant. Appellant was about a mile and a half from the accident scene. He was walking on the shoulder of a road.^[2] Appellant was slurring his words and drooling. He had a "pretty deep" cut on one of his hands.

Appellant stated that he had been in an auto accident. He told an officer that he had smoked a "blunt" and he had taken a Xanax pill about two hours before the crash.^[3]He said he had sustained the cut to his hand during the crash. Appellant was arrested on suspicion of driving a vehicle while impaired.

Appellant was transported to a hospital. He received five stitches to close the cut on his hand. His blood was drawn, and it was later tested. The forensic testing showed that appellant had components of marijuana in his system on the night he committed these crimes.^[4] The toxicology test also screened for other drugs in his system, such as Xanax, but those results were negative. However, a "full" toxicology screening was not done in this case to test for the possibility of hundreds of other chemicals or drugs, such as LSD or mushrooms, which could have caused behavioral changes.

Law enforcement recovered the knife used in this attack. The knife was found inside the victim's crashed vehicle. There was blood on the knife, which was swabbed.

IV. The Victim Identifies Appellant in a Field Show-up.

On the night of this attack, law enforcement transported the victim to conduct a field show-up of appellant. The victim saw appellant while appellant was in the back of an ambulance. The ambulance doors were open. The victim observed appellant from a distance of about 15 yards as the victim sat in the back of an officer's patrol vehicle. The victim confirmed that night that appellant had been his attacker.

V. The Prosecution Obtains Appellant's DNA Sample While he is in Jail Custody.

After appellant was booked into jail for these crimes, the prosecution sent an investigator to collect a buccal swab from him. The investigator obtained appellant's DNA sample without a warrant. This swab was collected approximately a year and seven months after appellant had been booked for the present charges.

VI. The Victim Identifies Appellant at Trial and Appellant's DNA is Linked to the Knife.

At trial, the victim identified appellant as the person who had accosted him and stolen his property on the night in question. The victim was shown a photograph of the knife which had been recovered from his stolen vehicle. He confirmed that the recovered knife, which had two blades, had been the same one which appellant had pressed against his neck.^[5]

Based on the buccal swab that had been taken from appellant, the prosecution established it was appellant's blood on the knife used in this attack, which had been recovered from the victim's crashed vehicle.

VII. Appellant's Convictions and his Prison Sentence.

The jury convicted appellant of the following charges^[6] and the trial court imposed the following sentences in each count:

1. Guilty of carjacking (Pen. Code, § 215, subd. (a);^[7] count 1). The jury found true that appellant personally used a dangerous and deadly weapon in the commission of this offense (§ 12022, subd. (b)(2)). The court imposed an upper term of nine years, which was doubled because of appellant's prior strike. For the dangerous weapon enhancement, the court imposed the aggravated term of three years.

2. Guilty of second degree robbery (§ 211; count 2). The jury found true that appellant personally used a dangerous and deadly weapon in the commission of this offense (§ 12022, subd. (b)(1)). The court imposed an upper term of five years, which was doubled. This sentence was stayed pursuant to section 654.

3. Guilty of assault with a deadly weapon (§ 245, subd. (a)(1); count 3). The court imposed an upper term of four years, which was doubled. This sentence was stayed.

4. Guilty of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a); count 4). The jury found true that the vehicle was valued in excess of $950 (§§ 487, 490.2, subd. (a)). The court imposed the upper term of four years, which was doubled. This sentence was stayed.

5. Guilty of driving under the influence of a drug (Veh. Code, § 23152, subd. (f); count 6). Appellant was granted credit for time served for this misdemeanor.

6. Guilty of hit and run driving (Veh. Code, § 20002, subd. (a); count 7). Appellant was granted credit for time served for this misdemeanor.

7. Guilty of driving without a license (Veh. Code, § 12500, subd. (a); count 8). Appellant was granted credit for time served for this misdemeanor.

DISCUSSION

I. The Trial Court Did Not Err in Denying Appellant's Motion to Exclude the DNA Evidence.

Appellant argues that the trial court erred when it denied his motion to exclude the DNA evidence that the prosecution obtained from him without a warrant. Appellant contends that this evidence must be suppressed, and his judgment reversed.

A. Background.

We summarize appellant's prior criminal conviction, which is relevant to the present issue because he was serving a term of probation when this buccal swab was taken. We also summarize appellant's motion to suppress and the trial court's ruling.

1. Appellant's prior felony conviction and term of probation.

On February 23, 2018, appellant was sentenced for a felony violation of section 29820, subdivision (b). He was placed on three years' formal probation. One condition of that probation required appellant to submit to DNA testing pursuant to section 296.

On February 22, 2019, appellant's probation was summarily revoked after he was arrested for the present offenses. An arraignment was set. The violation of probation matter trailed the present criminal case as it proceeded to trial.

2. The prosecution swabs appellant's cheek for DNA.

On September 3, 2020 (about three months before the first trial witness testified in this matter), appellant's trial counsel alerted the court that the prosecutor was going to have an investigator take a swab of appellant's DNA. Defense counsel understood that the prosecutor's office was going to take this sample on the basis...