Filed 11/18/20 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B301144
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA111372)
v.
ROBERT ANDREW RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert M. Martinez and David C.
Brougham, Judges. Affirmed.
Carlos Ramirez, 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,
Assistant Attorney General, Scott A. Taryle and David A. Voet,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________
This is the third appeal brought by defendant
Robert Andrew Rodriguez following his convictions for first
degree burglary and criminal threats. In this appeal, he relies
on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to
raise a due process challenge to the trial court’s imposition of a
restitution fine and certain assessments. We conclude Dueñas is
distinguishable from and inapplicable to the instant case.
Alternatively, even if this case were not distinguishable from
Dueñas, this division has held that Dueñas was wrongly decided.
Accordingly, we affirm.
FACTUAL BACKGROUND
The following facts are taken from our opinion in
defendant’s first appeal, People v. Rodriguez (May 24, 2018,
B281282) [nonpub. opn.] (Rodriguez I).
On the evening of December 14, 2015, defendant climbed
through a downstairs window into the home of Masae Hayashi
and her husband Michiaki Ishimura. Defendant went upstairs
and entered a bedroom occupied by Hayashi and her 17-year-old
daughter Yuri. After opening the closet door and looking around
for a few seconds, defendant told Yuri to leave and ordered
Hayashi to remove her clothes. Hayashi and Yuri refused to
comply. Defendant then told Hayashi to accompany him
downstairs, and said he would kill her if she did not take off her
clothes.
Hayashi, followed by defendant, went out to the hallway
and yelled for her son and husband. Hayashi’s son came out of
his bedroom and Ishimura came upstairs. When Ishimura asked
who defendant was, defendant claimed to be an FBI agent, but
refused to show any identification. Defendant asked for legal
documents related to the house, and warned that he had five men
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outside ready to come in at his request. Ishimura went
downstairs, looked outside, then returned and said he saw no one
and would be calling the police. Defendant left the house.
PROCEDURAL BACKGROUND
An information charged defendant with attempted forcible
rape, first degree burglary, criminal threats, and impersonating a
public officer, and alleged that defendant had suffered two prior
strike convictions, two prior serious felony convictions, and four
prior prison terms. A jury convicted defendant of the burglary
and criminal threats counts, but could not reach a verdict on the
other counts, which the trial court dismissed at the prosecution’s
request. Defendant admitted to the prior conviction allegations.
The trial court sentenced defendant to 35 years to life,
consisting of 25 years to life for the burglary count, a concurrent
25-years-to-life sentence for the criminal threats count, and
two 5-year enhancements for the two prior serious felony
convictions under Penal Code1 section 667, subdivision (a)(1).
The court struck the four prior prison terms.
The trial court imposed a $300 restitution fine under
section 1202.4, subdivision (b), an $80 court security fee under
section 1465.8, and a $60 criminal conviction assessment under
Government Code section 70373.
Defendant appealed, and we affirmed the judgment in full.
(Rodriguez I, supra, B281282.)
After sentencing, in response to inquiries from the
California Department of Corrections and Rehabilitation, the
trial court reduced the number of presentence conduct credits it
1 Unspecified statutory citations are to the Penal Code.
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had awarded. Defendant appealed the reduction in credits and
we affirmed. At the direction of the Supreme Court, however, we
remanded for the trial court to exercise its newly enacted
discretion pursuant to section 1385 whether to strike one or both
five-year prior serious felony enhancements. (People v. Rodriguez
(Apr. 15, 2019, B285593) [nonpub. opn.].)
On remand, the trial court declined to exercise its
discretion to strike the five-year enhancements and left its
previously imposed sentence in place. Defendant filed a notice of
appeal. Subsequently, defendant filed a motion in the trial court
“to vacate fines and fees and stay restitution fine or order an
ability to pay hearing,” which the trial court denied.2
DISCUSSION
On appeal, defendant argues, pursuant to Dueñas, supra,
30 Cal.App.5th 1157, that the trial court violated his due process
rights by imposing the $300 restitution fine, $80 court security
fee, and $60 criminal conviction assessment without first
determining that he was able to pay those costs. He contends
that on this record we should conclude that further proceedings
2 When the “sole issue on appeal” is “the erroneous
imposition or calculation of fines [or] penalty assessments,” the
appellant must “first present[ ] the claim in the trial court,”
either “at the time of sentencing, or if the error is not discovered
until after sentencing,” through a “motion for correction in the
trial court, which may be made informally in writing.” (§ 1237.2;
see People v. Hall (2019) 39 Cal.App.5th 502, 504 [dismissing
Dueñas challenge when appellant did not first seek relief under
section 1237.2].) The trial court retains jurisdiction to correct the
error, despite the filing of the notice of appeal. (§ 1237.2.)
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to determine his ability to pay are needless, and we should
simply reverse the imposition of the fine and fees. We disagree.
In Dueñas, an unemployed, homeless mother with cerebral
palsy lost her driver’s license when she was unable to pay over
$1,000 assessed against her for three juvenile citations. (Dueñas,
supra, 30 Cal.App.5th at pp. 1160–1161.) Thereafter she received
multiple convictions related to driving with a suspended license,
each accompanied by jail time and additional fees she could not
afford to pay. (Id. at p. 1161.) The trial court rejected Dueñas’s
request to hold an ability to pay hearing despite undisputed
evidence that she was indigent. (Id. at p. 1163.)
The appellate court reversed, holding that due process
prohibited imposing the same assessments imposed in the instant
case and required the trial court to stay execution of the
restitution fine until the trial court held an ability to pay hearing.
(Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court expressed
concern for “the cascading consequences of imposing fines and
assessments that a defendant cannot pay,” noting that Dueñas’s
case “ ‘doesn’t stem from one case for which she’s not capable of
paying the fines and fees,’ but from a series of criminal
proceedings driven by, and contributing to, Dueñas’s poverty.”
(Id. at pp. 1163–1164.) The court referenced “the
counterproductive nature of this system and its tendency to
enmesh indigent defendants in a cycle of repeated violations and
escalating debt.” (Id. at p. 1164, fn. 1.)
In People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres),
we declined to apply Dueñas beyond its “extreme facts.” (Id. at
p. 923.) We thus rejected a Dueñas challenge brought by a
defendant convicted of criminal threats, concluding that offense
“on its face is not a crime either ‘driven by’ poverty or likely to
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‘contribut[e] to’ that poverty such that an offender is trapped in a
‘cycle of repeated violations and escalating debt.’ [Citation.] A
person may avoid making criminal threats regardless of his or
her financial circumstances, and the imposition of $370 in fees
and fines will not impede [the defendant]’s ability to avoid
making criminal threats in the future.” (Caceres, at pp. 928–
929.)
Here, as in Caceres, defendant’s offenses—breaking into an
occupied home and threatening to kill a resident if she did not
remove her clothes—are not crimes likely to trap him “in a ‘cycle
of repeated violations and escalating debt,’ ” particularly when he
may abstain from committing those offenses in the future
regardless of his financial circumstances. (Caceres, supra,
39 Cal.App.5th at pp. 928–929.) Dueñas is therefore inapplicable
to the facts of this case and does not provide a basis to challenge
the imposition of the restitution fine and assessments.
As an alternative ground, even if the facts of the instant
case were analogous to those of Dueñas, following People v. Hicks
(2019) 40 Cal.App.5th 320, review granted November 26, 2019,
S258946, this division has held Dueñas was wrongly decided
because it misapplied due process precedents. (People v.
Kingston (2019) 41 Cal.App.5th 272.) Defendant does not discuss
Caceres, Hicks, or Kingston in his appellate briefing, and
therefore gives us no cause to deviate from those precedents.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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