People v. Rodriguez CA2/1 ( 2016 )

Filed 8/24/16 P. v. Rodriguez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
THE PEOPLE, B271246
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA022515)
v.
ROBERT RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Salvatore T. Sirna, Judge. Affirmed.
Robert Rodriguez, in propria persona, and Stephen Borgo, under appointment by
the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________________
In 1995 a jury convicted defendant Robert Rodriguez of one count of first degree
burglary and found he had two prior first degree burglary convictions alleged pursuant to
the “Three Strikes” law and Penal Code section 667, subdivision (a)(1).1 Defendant was
sentenced to a third strike term of 25 years to life, plus 10 years for the section 667,
subdivision (a)(1) enhancements.
On February 2, 2016, defendant filed a petition to have the prior burglary
convictions that subjected him to a third strike sentence reclassified as misdemeanors
pursuant to Penal Code section 1170.18, subdivision (a), part of Proposition 47. He also
sought resentencing, apparently on the theory that after reduction to misdemeanors, he
would no longer be subject to the Three Strikes law. His petition erroneously stated that
the jury found the prior burglaries were second degree burglary and that he was sentenced
to 25 years to life in prison. He made no factual showing regarding the purported second
degree burglaries. The trial court denied defendant’s petition on the ground that
Proposition 47 did not apply to defendant’s commitment offense of first degree burglary.
Defendant filed a timely appeal. We appointed counsel to represent defendant on
appeal. After examination of the record, counsel filed an opening brief raising no issues
and asking this court to independently review the record.
Defendant, acting in propria persona, filed a supplemental brief alleging charging
errors and errors at trial. These should have been raised in his appeal from the judgment,
and indeed were related to the errors actually raised (and rejected) in that appeal, namely
insufficiency of the evidence to support findings that his prior convictions constituted
first degree burglaries and the failure of the instructions and verdict forms to specify “first
degree burglary” as opposed to merely “burglary.” With respect to the latter category,
defendant asserts error under Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S. Ct.
2348], which essentially requires any fact, other than a prior conviction, that increases
the penalty for a crime beyond the prescribed statutory maximum to be charged,
1 Undesignated statutory references are to the Penal Code.
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submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) Defendant’s
claims have no merit and are not properly raised in this appeal.
Proposition 47 does not apply to first degree burglary. Although the trial court
misinterpreted defendant’s petition, the result is the same. Neither defendant’s prior first
degree burglaries nor the first degree burglary constituting his commitment offense is
eligible for reduction to a misdemeanor. Accordingly, defendant is not entitled to relief.
We have examined the entire record and are satisfied that defendant’s attorney has
fully complied with his responsibilities and that no arguable issues exist. (People v.
Kelly (2006) 40 Cal. 4th 106, 109–110; People v. Wende (1979) 25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED
LUI, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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