In re Rodriguez

Filed 7/22/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D078421
In re PEDRO LUIS RODRIGUEZ on
Habeas Corpus. (San Diego Super. Ct.
Nos. SCN333447, SCN340334,
HCN1657)

ORIGINAL PROCEEDING in habeas corpus. Blaine K. Bowman,
Judge. Petition denied.
Pedro Luis Rodriguez, in pro. per., and Christine M. Aros, under
appointment of the Court of Appeal, for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel
Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Respondent.
Petitioner Pedro Luis Rodriguez is currently serving a determinate
term of 14 years eight months in prison. This term is the result of two
separate proceedings in the trial court, both of which ended with jury trials
and judgments of conviction. Following the second proceeding, the trial court
announced a single, aggregate term of imprisonment for all of Rodriguez’s

felony convictions from both proceedings. (See Pen. Code, § 1170.1.)1

1 Subsequent statutory references are to the Penal Code.
 In the first proceeding, the trial court imposed a one-year prior prison
term enhancement under former section 667.5, subdivision (b). This one-year
term was included in the aggregate term of imprisonment imposed following
the second proceeding. While Rodriguez’s appeal from the judgment in the
second proceeding was pending, section 667.5 was amended to limit the prior
prison term enhancement to sexually violent offenses.
Rodriguez contends the amendment applies retroactively to him under
In re Estrada (1965) 63 Cal.2d 740 (Estrada) because his aggregate sentence
was not yet final when the amendment became effective. The Attorney
General responds that the judgment in the first proceeding, where the
enhancement was imposed, was final before the amendment became effective.
Its finality was not affected by its inclusion in the aggregate term of
imprisonment announced by the court following the second proceeding.
As our Supreme Court recently confirmed, “Estrada . . . continues to
stand for the proposition that (i) in the absence of a contrary indication of
legislative intent, (ii) legislation that ameliorates punishment (iii) applies to
all cases that are not yet final as of the legislation’s effective date.” (People v.
Esquivel (2021) 11 Cal.5th 671, 675 (Esquivel).) The Estrada rule is
primarily based on the Legislature’s presumed intent when enacting
ameliorative legislation. (Ibid.) “ ‘It is an inevitable inference that the
Legislature must have intended that the new statute imposing the new
lighter penalty now deemed to be sufficient should apply to every case to
which it constitutionally could apply. . . . This intent seems obvious, because
to hold otherwise would be to conclude that the Legislature was motivated by
a desire for vengeance, a conclusion not permitted in view of modern theories
of penology.’ ” (Id. at p. 674, quoting Estrada, supra, 63 Cal.2d at p. 745.)

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 We conclude that, under Estrada, the amendment to section 667.5 does
not apply retroactively to eliminate the prior prison term enhancement
imposed on Rodriguez in the first proceeding. The judgment in the first
proceeding was final before the amendment took effect. While the trial court
in the second proceeding used the first judgment to calculate the aggregate
term of imprisonment covering both proceedings, the first judgment itself was
unaffected. It remained final, and the amendment to section 667.5 does not
apply retroactively to it.
Our conclusion is supported by the principles underlying the Estrada
rule. It is clear that, in the absence of the second proceeding, Rodriguez
would not be entitled to the benefit of the amendment to section 667.5. The
second proceeding arose because Rodriguez committed additional crimes. To
uphold the judgment in the first proceeding, notwithstanding the second
proceeding, is not the “vengeance” identified in Estrada. It follows logically
from the fundamental principle that a defendant should not be rewarded for
committing additional crimes. Indeed, applying the Estrada rule to a prior
judgment could conceivably result in an aggregate term that is the same—or
shorter—than the prior judgment standing alone. A defendant would
effectively escape punishment for the subsequent crime, or even see a
sentence reduction as a result of its commission. Such a result cannot be
encompassed in the Legislature’s presumed intent in enacting an
ameliorative statute under Estrada. We therefore deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In the first proceeding, Rodriguez was convicted of multiple felonies
and sentenced to a total determinate term of 13 years four months in state
prison. His sentence included a one-year enhancement under former
section 667.5, subdivision (b), which at the time required imposition of the

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enhancement for each separate prior prison term (or county jail term under
section 1170, subdivision (h)) unless a “ ‘washout’ ” period applied.
(See People v. Buycks (2018) 5 Cal.5th 857, 889 (Buycks).) This court
affirmed the judgment, and the Supreme Court denied review. (People v.
Rodriguez (July 19, 2018, D071405) review den. and opn. ordered nonpub.
(Nov. 14, 2018, S251142).)
In the second proceeding, Rodriguez was convicted of several additional
felonies and several dozen misdemeanors. The trial court imposed a
determinate term of imprisonment to run consecutively with the remaining
term of Rodriguez’s prior sentence. On appeal, this court reversed in part
and remanded for resentencing. (People v. Rodriguez (Sept. 19, 2018,
D071948) [nonpub. opn.].)
At resentencing, the trial court again imposed a consecutive sentence.
As required by statute, the court announced a single, aggregate term of
imprisonment of 14 years eight months for the two proceedings.
(See § 1170.1, subd. (a).) This term included the one-year prior prison term
enhancement imposed in the first proceeding. This court affirmed the
judgment. (People v. Rodriguez (July 17, 2020, D075890) [nonpub. opn.].)
The Supreme Court denied review. (People v. Rodriguez (Sept. 30, 2020,

S264130).)2
While Rodriguez’s most recent appeal was pending, section 667.5 was
amended to limit the application of the prior prison term enhancement to
certain sexually violent offenses. (§ 667.5, subd. (b), as amended by
Stats. 2019, ch. 590, § 1; see People v. Gastelum (2020) 45 Cal.App.5th 757,

2 The trial court also imposed a term of 15 years six months for the
misdemeanor convictions, to be served in local custody. Rodriguez does not
raise any issues regarding that term.

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772 (Gastelum).) Rodriguez filed a petition for writ of mandate, later
construed as a petition for writ of habeas corpus, contending he should
benefit from the amended statute. The trial court denied his petition. It
reasoned that the judgment in the first proceeding, where the enhancement
was imposed, was final before the amendment took effect. Thus, the
amendment did not apply retroactively to Rodriguez.
Rodriguez filed a petition for writ of habeas corpus here, and this court
issued an order to show cause returnable in the trial court. (In re Rodriguez
(Aug. 11, 2020, D077717).) The trial court again denied relief.
Rodriguez filed another petition for writ of habeas corpus in this court.

We issued an order to show cause, and these proceedings followed.3
DISCUSSION
A statute is ordinarily presumed to operate prospectively. (People v.
Brown (2012) 54 Cal.4th 314, 323-324.) But, under Estrada, certain
ameliorative statutes are governed by the opposite presumption: “When new
legislation reduces the punishment for an offense, we presume that the
legislation applies to all cases not yet final as of the legislation’s effective
date.” (Esquivel, supra, 11 Cal.5th at p. 673.) The amendment at issue here
narrows the scope of the one-year prior prison term sentencing enhancement.
(§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) It is generally
entitled to retroactive effect under Estrada. (People v. Jennings (2019)
42 Cal.App.5th 664, 680-682; accord, Gastelum, supra, 45 Cal.App.5th at
p. 772.)

3 Our order to show cause was limited to the retroactivity, under
Estrada, of the amendment to section 667.5. “An [order to show cause]
directing response on a particular issue indicates that the petitioner has
failed to make a prima facie case as to the other issues presented.” (In re
Sims (2018) 27 Cal.App.5th 195, 203.)

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 The dispute here revolves around finality since the Estrada rule applies
only to nonfinal judgments. “Estrada used varied terminology to describe
this issue, speaking of the finality of ‘the judgment of conviction’ [citation]; of
‘all cases not reduced to final judgment’ [citation]; and, when describing a
related common law rule, of ‘all prosecutions not reduced to final judgment’
[citation].” (Esquivel, supra, 11 Cal.5th at p. 676.) “The significance of
finality was that legislation ‘constitutionally could apply’ to nonfinal
judgments.” (Id. at p. 677.) While the underlying constitutional issue may
not be so straightforward, our Supreme Court continues to “adhere to the
Estrada doctrine’s long-standing nonfinality requirement, on which our
Legislature may have relied when declining to limit the retroactive
application of its enactments. [Citation.] But the role of finality in Estrada’s
reasoning counsels against importing a rigid understanding of the term ‘final’
into this context.” (Ibid.) As with the Estrada rule as a whole, our
consideration of this issue is guided by the Legislature’s presumed intent.
(Id. at p. 680.)
Here, setting aside the second proceeding, it is clear the judgment
following the first proceeding was final before the amendment to
section 667.5. Our Supreme Court has stated the general rule: “A judgment
becomes final when the availability of an appeal and the time for filing a
petition for certiorari with the United States Supreme Court have expired.”
(Buycks, supra, 5 Cal.5th at p. 876, fn. 5; People v. Millan (2018)
20 Cal.App.5th 450, 456; see People v. Nasalga (1996) 12 Cal.4th 784, 789,
fn. 5.) Rodriguez does not argue otherwise.
Rodriguez contends, instead, that we must look to the finality of the
judgment following the second proceeding, in which the trial court announced
a single, aggregate term of imprisonment encompassing both proceedings.

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We disagree. The court’s use of the judgment following the first proceeding
as a component of the aggregate term of imprisonment does not affect its
finality for purposes of the Estrada rule.
“Under the Determinate Sentencing Act (§ 1170 et seq.), multiple
consecutive determinate terms must be combined into a single, ‘aggregate
term of imprisonment for all [such] convictions’ (§ 1170.1, subd. (a)) that
merges all terms to be served consecutively and complies with the rules for
calculating aggregate terms (e.g., one-third the base term for subordinate
terms and specific enhancements applicable to subordinate terms (ibid.)),
whether or not the consecutive terms arose from the same or different
proceedings (ibid.; see also § 669; Cal. Rules of Court, rule 4.452).” (In re
Reeves (2005) 35 Cal.4th 765, 772-773.)
Crucially, the court announcing the aggregate term of imprisonment
does not resentence the defendant in the generally understood manner, with
authority to modify every aspect of the sentence. (Cf. Buycks, supra,
5 Cal.5th at p. 893.) The court must instead preserve the sentencing choices
reflected in the prior judgment. “Discretionary decisions of courts in previous
cases may not be changed by the court in the current case. Such decisions
include the decision to impose one of the three authorized terms of
imprisonment referred to in section 1170[, subdivision ](b), making counts in
prior cases concurrent with or consecutive to each other, or the decision that
circumstances in mitigation or in the furtherance of justice justified striking
the punishment for an enhancement.” (Cal. Rules of Court, rule 4.452(a)(3),
italics added.) This limitation reflects, in part, the common law rule that a
court loses jurisdiction to resentence a defendant once execution of the
sentence has begun. (See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779,
783.)

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 The statute admits one necessary exception. In order to combine
multiple consecutive determinate terms into one aggregate term, the court
must designate the longest single term as the principal term, which may
displace a previously-designated principal term. “While imposing the
current, consecutive sentence, the second court is empowered to modify a
sentence previously imposed by a different court and make it subordinate to
the later-imposed term. [Citation.] Thus, section 1170.1 provides an
exception to the general rule that a sentence lawfully imposed cannot be
modified once a defendant is committed and execution of his or her sentence
has begun. [Citation.] Without the exception, ‘ “sentencing courts would be
unable to impose full terms under sections 669 and 1170 for serious crimes
when those crimes are committed by defendants who have been previously
convicted and sentenced for less serious offenses.” ’ ” (People v. Baker (2002)
144 Cal.App.4th 1320, 1329; accord, People v. Bozeman (1984) 152 Cal.App.3d
504, 507 [“The exception provided by section 1170.1, subdivision (a) is
necessary and makes good sense.”].) The statutory scheme therefore
maintains the finality of a prior judgment, except to the extent necessary to
properly calculate the defendant’s aggregate sentence under the Determinate
Sentencing Act.
Given these limitations, the announcement of an aggregate sentence
does not reopen a prior judgment or render it nonfinal for purposes of the
Estrada rule. The announcement of an aggregate sentence is not a mere
continuation of a prior criminal proceeding. It is, instead, the result of a new

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proceeding, occasioned by the commission of an additional offense, which

builds on the now-final determinations of a previous court.4
This matter is therefore unlike recent opinions where a defendant’s
continuing involvement in the criminal justice system in the same case
justified application of the Estrada rule. (See Esquivel, supra, 11 Cal.5th at
p. 673 [holding that “a case in which a defendant is placed on probation with
execution of an imposed state prison sentence suspended is not yet final for
this purpose if the defendant may still timely obtain direct review of an order
revoking probation and causing the state prison sentence to take effect”];
People v. McKenzie (2020) 9 Cal.5th 40, 43 [holding that “a convicted
defendant who is placed on probation after imposition of sentence is
suspended, and who does not timely appeal from the order granting
probation, may take advantage of ameliorative statutory amendments that
take effect during a later appeal from a judgment revoking probation and
imposing sentence”].) The proceedings in Esquivel and McKenzie never
achieved finality for purposes of Estrada. Here, by contrast, the judgment

4 Rodriguez notes that the prior prison term enhancement is a status
enhancement, which can only be imposed once in an aggregate sentence.
(See, e.g., People v. Edwards (2011) 195 Cal.App.4th 1051, 1060.) This
circumstance is irrelevant to our analysis. The court in the first proceeding
imposed the prior prison term enhancement as part of its own aggregate
sentence. The prior prison term enhancement cannot be separated from the
remainder of the first judgment. (People v. Hill (1986) 185 Cal.App.3d 831,
834 [“[A]n aggregate prison term is not a series of separate independent
terms, but one term made up of interdependent components.”]; see People v.
Cortez (2016) 3 Cal.App.5th 308, 316 [“[T]he aggregate length of a term
matters.”].) The court in the second proceeding was required to preserve the
first court’s discretionary sentencing choices to the extent possible. (Cal.
Rules of Court, rule 4.452(a)(3).) The fact that the prior prison term
enhancement could not have been imposed again as a result of the second
proceeding is of no consequence.

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which imposed the prior prison term enhancement was final. That case was
complete, Rodriguez had begun serving his sentence, and he had exhausted
his avenues of direct review. (See People v. Martinez (2020) 54 Cal.App.5th
885, 891, rev. granted Nov. 10, 2020, S264848 [“A sentence becomes final
‘when all available means to avoid its effect have been exhausted.’ [Citation.]
It has not become final ‘if there still remains some legal means of setting it
aside’ on direct appeal.”]; cf. Esquivel, at p. 678 [applying Estrada where the
defendant “had not exhausted direct review of the order causing his carceral
punishment to take effect”].) But for the second proceeding, the criminal
prosecution against Rodriguez had ended.
Indeed, it is the necessity of the second proceeding that confirms
Estrada should not apply here. As noted, Estrada recognized an implied
legislative intent that ameliorative statutes should have the greatest possible
reach, consistent with the Constitution. (Esquivel, supra, 11 Cal.5th at
p. 674.) This implied intent is not an abstract notion. It has a specific
foundation: An ameliorative statute reflects the Legislature’s determination
that the lesser punishment is proper and the greater punishment serves no
penological purpose. (Ibid.) To impose it unnecessarily would reflect only a
“ ‘desire for vengeance’ ” on the part of the Legislature. (Id. at p. 674.)
“[P]unishment is appropriate to deter, confine, and rehabilitate; ‘ “[t]here is
no place in the scheme for punishment for its own sake . . . .” ’ ” (Ibid.)
The trial court’s preservation of the judgment following the first
proceeding, including its one-year prior prison term enhancement, was not
punishment for its own sake. It maintained the deterrent value of judgments
imposed by California courts, both past and future. If the announcement of
an aggregate term of imprisonment under section 1170.1 required the
application of ameliorative statutes to otherwise-final judgments, a defendant

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would be incentivized to commit a new crime and obtain a potentially lower
aggregate sentence. For example, if a defendant previously suffered two
prior prison term enhancements, he would in some circumstances benefit
from committing a new crime for which the effective sentence was less than
two years, since eliminating the enhancements would cancel out any

additional punishment for the crime.5
The existing exception in section 1170.1, which allows for the
determination of a new principal term, appears to guarantee that a defendant
will suffer a longer aggregate sentence following the commission of an
additional crime. A prior principal term can only be supplanted by a longer
principal term. But no such guarantee exists if ameliorative statutes are
applied more broadly.
In this context, the contrast with Esquivel is apparent. Esquivel
considered a situation where the trial court imposed a sentence on a
defendant, including two prior prison term enhancements, but suspended
execution of the sentence and placed the defendant on probation. (Esquivel,
supra, 11 Cal.5th at p. 673.) Three years later, the trial court found that the

5 Of course, upon eliminating the enhancements, a trial court would be
required to resentence the defendant on all counts and allegations. (See
Buycks, supra, 5 Cal.5th at p. 893.) If the court had not previously imposed
the highest possible punishment, the court may be able to reimpose the same
sentence in a different manner, and the defendant may yet suffer a longer
aggregate sentence following the second proceeding. (See, e.g., People v.
Calderon (1993) 20 Cal.App.4th 82, 88 [“It is perfectly proper for this court to
remand for a complete resentencing after finding an error with respect to
part of a sentence and just as proper for the trial judge to reimpose the same
sentence in a different manner.”].) But, if the court had already imposed the
highest possible sentence, the court would be unable to make up the
difference, and the defendant would enjoy a shorter sentence than if he had
not committed the new crime.

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defendant had violated a condition of his probation and ordered the
previously-imposed sentence into effect. (Ibid.) The defendant appealed, and
during his appeal the amendment to section 667.5 took effect. (Ibid.) Our
Supreme Court held that the amendment should apply retroactively to him
under Estrada. (Ibid.) However, notwithstanding this retroactive
application, the defendant was still worse off having committed a probation
violation. Perhaps he would not serve as long a sentence as the trial court
initially imposed (based on the elimination of the prior prison term
enhancements), but he was still newly committed to state prison. He did not
benefit from the probation violation, and therefore Esquivel would not
incentivize a defendant to commit a probation violation. In the present
context, by contrast, a defendant would benefit from committing a new crime
if the ameliorative effect of the intervening statute outweighed the additional
punishment that could be imposed. He would be incentivized to commit a
new crime and, in some cases, possibly rewarded for doing so.
In sum, Rodriguez has not shown that the ameliorative amendment to
section 667.5 should be applied retroactively to him under Estrada. The
judgment imposing the prior prison term enhancement was final before the
amendment became effective. Its inclusion in an aggregate term of
imprisonment following a later criminal proceeding does not affect its
finality. The prior judgment must be preserved, to the extent possible, and
the Legislature’s presumed intent that ameliorative statutes should reach as
broadly as possible does not cover the circumstances here.

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 DISPOSITION
The petition is denied.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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