People v. Rodriguez CA2/7 ( 2020 )

Filed 9/14/20 P. v. Rodriguez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B303459
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA445443)
v.
GERARDO RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed as
modified and with directions.
Lori A. Nakaoka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, and David A. Wildman, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted Gerardo Rodriguez of two counts of
carjacking (Pen. Code, § 215, subd. (a))1 and found true the
allegation he committed the offenses for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)). The trial court imposed a
sentence of 31 years, which included 10 years for the gang
enhancement, 10 years for two five-year enhancements for prior
serious felony convictions under section 667, subdivision (a)(1),
and one year for a prior prison term under section 667.5,
subdivision (b). Rodriguez appealed, and this court affirmed his
convictions, but reversed the true finding on the gang allegation
and remanded for resentencing.
At the resentencing hearing, the court struck the 10-year
gang enhancement but did not strike either of the five-year
enhancements under section 667, subdivision (a)(1), or the one-
year enhancement under section 667.5, subdivision (b).
Rodriguez appeals again, arguing he is entitled to another
sentencing hearing because the trial court did not recognize at
the resentencing hearing it had discretion to strike either or both
of the five-year enhancements under section 667, subdivision
(a)(1). Rodriguez also argues the one-year enhancement under
section 667.5, subdivision (b), must be stricken after the
Legislature enacted Senate Bill No. 136, effective January 1,
2020. We strike the one-year enhancement, and otherwise
affirm.
1 Undesignated statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Rodriguez on Two Counts of
Carjacking, and the Trial Court Sentences Him to
31 Years in Prison
In 2017 a jury convicted Gerardo Rodriguez on two counts
of carjacking (§ 215, subd. (a)) and found true the allegation he
committed the offenses for the benefit of, at the direction of, or in
association with a criminal street gang, with the specific intent to
promote, further, or assist in criminal conduct by gang members,
within the meaning of section 186.22, subdivision (b). The trial
court found that Rodriguez had two prior serious or violent felony
convictions withing the meaning of the three strikes law (§§ 667,
subds. (b)-(j), 1170.12, subds. (a)-(d)), that he had two prior
serious felony convictions within the meaning of section 667,
subdivision (a)(1), and that he served several prior prison terms
within the meaning of section 667.5, subdivision (b). (People v.
Rodriguez (July 10, 2019, B280915) [nonpub. opn.].)
Rodriguez filed a motion under People v. Romero (1996)
13 Cal.4th 497 to strike both prior serious and violent felony
convictions for purposes of the three strikes law. The trial court
granted the motion in part and struck one of the prior serious or
violent felony convictions. The court also struck all but one of the
prior prison terms. The court sentenced Rodriguez as a second
strike offender to the middle term of five years for one of the
carjacking convictions, doubled to 10 years under the three
strikes law, plus a 10-year term for the gang finding under
section 186.22, subdivision (b)(1)(C), two five-year terms for the
prior serious felony convictions under section 667, subdivision
(a)(1), and a one-year term for the section 667.5, subdivision (b),
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prior prison term, for a total sentence of 31 years. The court
imposed an identical concurrent term for the other carjacking
conviction.
B. Rodriguez Appeals, This Court Remands for
Resentencing, and the Trial Court Strikes the Gang
Enhancement
Rodriguez appealed. Among other contentions, he argued
the trial court committed prejudicial error under People v.
Sanchez (2016) 63 Cal.4th 665 in admitting expert testimony
about the predicate offenses required to establish the element of
a pattern of criminal gang activity for the gang enhancement. In
2019 we reversed the true finding on the gang enhancement
allegation, otherwise affirmed the judgment, and gave the People
the option to retry the gang allegations. We directed the trial
court to resentence Rodriguez if, as ultimately occurred, the
People declined to retry the gang allegation.
During the resentencing hearing in November 2019 the
court struck the gang allegation and stated, “I could just repeat
the sentence before, but I’m going to indicate that it is to be the
identical sentence that was previously given . . . minus the 10
years I gave him for the gang allegation pursuant to 186.22(b)(1);
that is taken away. And the sentence remains identical in all
purposes for 21 years.” The People asked the trial court to
“resentence without the 667. . . . to get to a 21-year-8 number,”
but the trial court declined to make any changes to the sentence
other than striking the gang enhancement and reducing
Rodriguez’s restitution fine “in light of the reduced sentence.”
Rodriguez appealed again.
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DISCUSSION
A. The Trial Court Did Not Fail To Recognize It Had
Discretion To Strike a Prior Conviction at
Resentencing
1. Applicable Law and Standard of Review
Prior to January 1, 2019, section 667, subdivision (a)(1),
required the court to impose a five-year sentence enhancement
for each prior conviction of a serious felony. The court did not
have discretion to strike a prior serious felony conviction.
(Stats. 2018, ch. 1013, § 2; see People v. Reneaux (2020)
50 Cal.App.5th 852, 875.) In 2018 the Legislature enacted
Senate Bill No. 1393, effective January 1, 2019, which amended
sections 667 and 1385 to allow a judge to exercise discretion and
strike a prior serious felony conviction in connection with the
five-year enhancement. (Stats. 2018, ch. 1013, §§ 1-2; People v.
Stamps (2020) 9 Cal.5th 685, 702.) Senate Bill No. 1393 applies
retroactively to cases, like this one, that are not final as of the
statute’s January 1, 2019 effective date. (Stamps, at
pp. 698-699.)
“As a general rule ‘“a trial court is presumed to have been
aware of and followed the applicable law.”’” (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 398.) This rule applies
to sentencing. (See People v. Weddington (2016) 246 Cal.App.4th
468, 492 [“we presume that the trial court followed established
law and thus properly exercised its discretion in sentencing a
criminal defendant”]; People v. Bullock (1994) 26 Cal.App.4th
985, 990-991 [“We are entitled to presume that the sentencing
court properly exercised its discretion in imposing sentence
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absent contrary evidence.”].) If the record is silent whether the
trial court understood its sentencing discretion, we presume the
court understood it. (See People v. Bolian (2014) 231 Cal.App.4th
1415, 1421 [remand for resentencing is not required where “the
record is merely silent on whether the court misunderstood its
sentencing discretion”]; People v. Gutierrez (2009) 174
Cal.App.4th 515, 527 [“in light of the presumption on a silent
record that the trial court is aware of the applicable law,
including statutory discretion at sentencing, we cannot presume
error where the record does not establish on its face that the trial
court misunderstood the scope of that discretion”]; People v.
Brown (2007) 147 Cal.App.4th 1213, 1228-1229 [“remand is
unnecessary if the record is silent concerning whether the trial
court misunderstood its sentencing discretion” because “[e]rror
may not be presumed from a silent record”].)
We review for abuse of discretion a trial court’s failure to
dismiss or strike a prior conviction under section 1385. (People v.
Carmony (2004) 33 Cal.4th 367, 374; People v. Carter (2018)
26 Cal.App.5th 985, 995.) “In reviewing for abuse of
discretion, . . . ‘“[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.”’” (Carmony, at pp. 376-377; see People v. Lee
(2017) 16 Cal.App.5th 861, 866 [to show an abuse of discretion,
“the defendant must ‘affirmatively demonstrate that the trial
court misunderstood its sentencing discretion’”].)
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2. The Trial Court Recognized It Had Discretion
and Did Not Abuse It
We issued our decision in the prior appeal on July 10, 2019,
over six months after Senate Bill No. 1393 amended sections 667
and 1385 to give trial judges discretion to strike prior serious
felony convictions for purposes of the five-year enhancement.
The trial court resentenced Rodriguez on November 25, 2019,
over 10 months after the effective date of those amendments.
Senate Bill No. 1393 applied to Rodriguez’s resentencing because
his judgment was not final. (People v. Stamps, supra, 9 Cal.5th
at p. 699.) The trial court had ample notice of the new law, and
we presume, in the absence of any contrary evidence, the court
was aware of, and applied, the new law.
Rodriguez asserts the trial court was unaware it had
discretion to strike the five-year enhancements under section
667, subdivision (a)(1), because the resentencing hearing was
brief. Brevity, however, is not ignorance of discretion, and
Rodriguez does not cite any evidence or statement suggesting the
trial court was unaware of its (by then well-known) sentencing
discretion to strike five-year enhancements under section 667,
subdivision (a)(1). And as discussed, silence is not enough. (See
People v. Carmony, supra, 33 Cal.4th at pp. 376-377; People v.
Bolian, supra, 231 Cal.App.4th at p. 1421; People v. Brown,
supra, 147 Cal.App.4th at pp. 1228-1229; People v. Gutierrez,
supra, 174 Cal.App.4th at p. 527.) Indeed, contrary to
Rodriguez’s assertion, the record suggests the trial court was
fully aware it had discretion to strike the five-year enhancements
but chose not to, twice emphasizing that, except for striking the
10-year gang enhancement, the court wanted to impose an
“identical” sentence in all other respects.
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B. The One-Year Prior Prison Term Enhancement Must
Be Stricken
Prior to January 1, 2020, section 667.5, subdivision (b),
authorized the court to impose a one-year sentence enhancement
for each true finding “the defendant had served a separate prior
prison term and had not remained free of custody for at least five
years.” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
Senate Bill No. 136, which was enacted on October 8, 2019 and
became effective January 1, 2020, amended section 667.5,
subdivision (b), to limit the applicability of the one-year prior
prison term enhancement to those defendants who served a prior
prison sentence for a sexually violent offense, as defined in
Welfare and Institutions Code section 6600, subdivision (b).
(Stats. 2019, ch. 590, § 1; see People v. Matthews (2020)
47 Cal.App.5th 857, 862; People v. Smith (2020) 46 Cal.App.5th
375, 396.)
The one-year term the trial court imposed under section
667.5, subdivision (b), was for a prior prison term Rodriguez
served for unlawful driving or taking a vehicle (Veh. Code,
§ 10851, subd. (a)), which is not a sexually violent offense under
Welfare and Institutions Code section 6600, subdivision (b). As
the People concede, because Rodriguez’s case was not final when
the new law became effective, the new law applies to Rodriguez,
and we must strike the one-year enhancement. (See People v.
Jennings, supra, 42 Cal.App.5th at p. 682 [“Senate Bill
No. 136’s . . . amendment to section 667.5, subdivision (b) applies
retroactively to all cases not yet final as of its January 1, 2020
effective date,” and where the defendant’s case was not “final as
of that date, he is entitled to the ameliorative benefit” of the
amended statute]; see also People v. Gastelum (2020)
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45 Cal.App.5th 757, 772; People v. Winn (2020) 44 Cal.App.5th
859, 872-873.)
DISPOSITION
The one-year enhancement under section 667.5, subdivision
(b), is stricken. As modified, the judgment is affirmed. The trial
court is directed to prepare an amended abstract of judgment and
forward it to the Department of Corrections and Rehabilitation.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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