People v. Rodriguez CA2/2 ( 2016 )

Filed 2/17/16 P. v. Rodriguez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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, B264618
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA399380)
v.
JONATHAN RODRIGUEZ,
Defendant and Appellant.
THE COURT:*
Defendant and appellant Jonathan Rodriguez (defendant) appeals from the order
denying his petition for resentencing under the provisions of Proposition 47 which reduce
some felony theft offenses to misdemeanors. His appointed counsel filed a brief pursuant
to People v. Wende (1979) 25 Cal.3d 436 (Wende), raising no issues. On December 1,
2015, we notified defendant of his counsel’s brief and gave him leave to file, within 30
days, his own brief or letter stating any grounds or argument he might wish to have
considered. That time has elapsed, and defendant has submitted no brief or letter. We
have reviewed the entire record, including the materials reproduced in defendant’s
motion to augment the record, and finding no arguable issues, affirm the order.
* BOREN, P.J., CHAVEZ, J., HOFFSTADT, J.
In 2012, defendant was charged with two counts of second degree robbery in
violation of Penal Code section 211.1 The information, as amended in 2013, alleged
pursuant to section 186.22, subdivision (b)(1)(C), that the robberies were committed for
the benefit of, at the direction of, and in association with a criminal street gang with the
specific intent to promote, further and assist in criminal conduct by gang members. As to
count 2, the amended information alleged that defendant personally used a firearm in the
commission of the robbery, within the meaning of section 12022.5, subdivision (a), and
as to both counts, that a principal personally used a firearm, within the meaning of
section 12022.53, subdivisions (b) and (e)(1). In addition, it was alleged as to both
counts pursuant to sections 1170.12, subdivisions (a)-(d), and 667, subdivisions (b)-(i),
that defendant had suffered two prior juvenile adjudications, both based upon violations
of section 211.
In 2013, under a plea agreement for a maximum sentence of 12 years, defendant
pled nolo contendere to count 1 and admitted the gang allegation and the firearm use by a
principal. On August 1, 2013, the trial court sentenced defendant to the low term of two
years, plus 10 years for the firearm enhancement, with an additional term of 10 years due
to the gang enhancement, but stayed under the terms of the plea agreement. The court
dismissed count 2 and the remaining special allegations.
In 2015, defendant filed a petition for recall of his sentence and reduction of his
conviction to a misdemeanor under Proposition 47. On April 20, 2015, the trial court
found that defendant’s robbery conviction did not qualify for resentencing. (See
§ 1170.18.)2 Defendant filed a timely notice of appeal from the order.
1 All further statutory references are to the Penal Code, unless otherwise indicated.
2 A violation of section 211 is not included in the eligible offenses listed in
subdivision (a) of section 1170.18, which provides: “A person currently serving a
sentence for a conviction, whether by trial or plea, of a felony or felonies who would
have been guilty of a misdemeanor under the act that added this section (‘this act’) had
this act been in effect at the time of the offense may petition for a recall of sentence
before the trial court that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and
2
We have examined the entire record and are satisfied that defendant’s attorney has
fully complied with her responsibilities and that no arguable issue exists. We conclude
that defendant has, by virtue of counsel’s compliance with the Wende procedure and our
review of the record, received adequate and effective appellate review of the judgment
entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v.
Kelly (2006) 40 Cal.4th 106, 123-124.)
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those
sections have been amended or added by this act.”
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