Filed 5/21/21 P. v. Rodriguez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B307257
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA460930)
v.
JESSE RODRIGUEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Stephen A. Marcus, Judge. Affirmed.
Jesse Rodriguez, in pro. per.; Law Offices of John F.
Schuck and John F. Schuck, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Respondent.
INTRODUCTION
Appellant Jesse Rodriguez challenges the trial court’s
denial of his request to strike an enhancement under Penal
Code section 667, subdivision (a)(1), after remand for
resentencing pursuant to Senate Bill No. 1393 (2017-2018
Reg. Sess.) (SB 1393).1 Appellant’s appointed counsel filed a
brief under People v. Wende (1979) 25 Cal.3d 436 (Wende),
requesting that this court conduct an independent review of
the record. Appellant has filed a supplemental brief raising
various contentions in support of striking the enhancement.
Having considered appellant’s arguments and having
reviewed the record independently, we affirm.
BACKGROUND
In 2018, a jury convicted appellant of assault with a
deadly weapon, and he was sentenced to a total of 22 years
in prison, including a five-year enhancement for a prior
serious felony under section 667, subdivision (a)(1). At the
time of sentencing, former section 1385 precluded the trial
court from striking this enhancement. (See former § 1385,
subd. (b).) In appellant’s initial appeal, we affirmed his
conviction but remanded the matter for the trial court to
consider exercising its newly granted discretion to strike the
enhancement under SB 1393, which eliminated section
1 Undesignated statutory references are to the Penal Code.
2
1385’s prior prohibition.2 (People v. Rodriguez (Nov. 27,
2019, B291210) 2019 Cal.App.Unpub. LEXIS 7997, at *2.)
At the resentencing hearing on remand, the trial court
recounted appellant’s extensive criminal history, which
included prison terms in 1991 (six years), 1996 (two years),
1998 (two years), 1999 (three years), 2005 (five years), and
2009 (six years), and several jail terms beginning in 2013.
While most of appellant’s prior offenses were nonviolent, his
record included convictions for brandishing a deadly weapon
(§ 417, subd. (a)(1)) and violating a domestic violence
protective order (§ 273.6, subd. (a)). Noting that it was
“overwhelmed” by appellant’s record and that appellant had
failed to take advantage of numerous opportunities to
reform, the court declined to strike the prior serious felony
enhancement. Appellant timely appealed.
DISCUSSION
After reviewing the record, appellant’s court-appointed
counsel filed an opening brief requesting this court
independently review the record under Wende, supra, 25
Cal.3d 436. Counsel also advised appellant of his right to
submit a supplemental brief raising any contention he
wished the court to consider. In response, appellant
submitted a supplemental brief.
In his brief, appellant asserts that he has no history of
violence, that he is in bad health, that he was not the
2 We also instructed the trial court to strike other
enhancements not relevant to this appeal.
3
aggressor in the incident leading to his conviction, and that
the victim was not seriously injured. Appellant also points
to the Los Angeles District Attorney’s recent directives
regarding the charging of sentencing enhancement
allegations. (See Los Angeles County District Attorney
Special Directives 20-08, available at [as of May 19, 2021], and 20-08.1, available at
[as of May 19, 2021].)
Based on these factors, appellant asks us to strike his prior
serious felony enhancement. Construing this request as a
contention that the trial court erred in failing to strike the
enhancement, we find no error.
We review the trial court’s sentencing decision for
abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th
825, 847.) We may not reweigh the sentencing factors or
substitute our judgment for that of the sentencing judge.
(People v. Scott (1994) 9 Cal.4th 331, 355.) Absent a showing
that the sentencing decision was irrational or arbitrary, we
must presume the trial court acted to achieve legitimate
sentencing objectives, and its discretionary determination
will not be set aside on review. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The trial court permissibly considered appellant’s
extensive criminal history and repeated failures to
rehabilitate as aggravating factors militating against
striking the enhancement. (See Cal. Rules of Court, rule
4
4.421(b)(2) & (3) [aggravating sentencing factors include
having numerous prior convictions and serving prior prison
or jail term].) Contrary to appellant’s contention, his
criminal history included offenses suggestive of violent
tendencies: he had been convicted of brandishing a deadly
weapon and violating a domestic violence protective order, in
addition to his current offense of assault with a deadly
weapon. To the extent appellant points to potential
mitigating factors, the trial court was not compelled to find
them determinative, and we will not reweigh them on
appeal.3 (See People v. Scott, supra, 9 Cal.4th at 355.)
Finally, the district attorney’s directives, which appellant
cites, guide the work of prosecutors and do not constrain the
trial court’s discretion. The court’s decision was neither
arbitrary nor irrational.
We have examined the entire record and are satisfied
no arguable issue exists. By virtue of counsel’s compliance
with the Wende procedure and our review of the record,
appellant has received adequate and effective appellate
review of the judgment. (See Smith v. Robbins (2000) 528
U.S. 259, 278-279.)
3 Appellant suggests he acted in self-defense in the incident
underlying his offense, but the jury necessarily rejected this
claim in finding him guilty. Appellant does not challenge his
conviction, which we have already affirmed in his prior appeal.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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