Filed 6/22/22 P. v. Rodriguez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082475
Plaintiff and Respondent,
(Super. Ct. No. F20906645)
v.
FLAVIO RODRIGUEZ, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M.
Corona, Judge.
Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Franson, Acting P. J., Smith, J. and Snauffer, J.
STATEMENT OF THE CASE1
Flavio Rodriguez pleaded guilty on November 10, 2020, in case No. F20906645 to
possession of a zip gun (Pen. Code, § 33600)2 and possession of a drug smoking device
(Health & Saf. Code, § 11364). The trial court indicated a three-year four-month
maximum total aggregate sentence with two other pending cases (case Nos. F20907203
and M20920515).3
Rodriguez was sentenced on February 23, 2021, as follows: the middle term of
two years in state prison for count 1 in Case No. M20920515; eight months consecutive
for count 1 in Case No. F20906645; eight months consecutive for count 1 in Case No.
F20907203; and the middle term of two years concurrent for count 2 in Case No.
F20907203. Rodriguez was awarded 264 days credit for time served, including 130
actual days and 130 conduct credits. A restitution fine of $1,200 was imposed in each
case and a parole revocation fine of the same amount was stayed. The trial court imposed
a requirement that Rodriguez use an ignition device for a period of three years.
On appeal, Rodriguez contends that he is entitled to be resentenced under section
1170, subdivision (b)(6), which became effective January 1, 2022. The People concede
the issue, and we remand for resentencing.
DISCUSSION
Effective January 1, 2022, our determinate sentencing law, section 1170, was
amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.);
Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch.
695, § 5.) Relevant here, Senate Bill No. 567 amended section 1170, former subdivision
1 Facts of the underlying crimes are not relevant to the issue on appeal and are
therefore omitted.
2 All further statutory references are to the Penal Code unless otherwise stated.
3 Rodriguez has appealed his sentence in these other cases (case Nos. F082477 and
F082470).
2.
(b) by making the middle term the presumptive sentence for a term of imprisonment
unless certain circumstances exist. (Stats. 2021, ch. 731, § 1.3, adding § 1170, subd.
(b)(1), (2).) This bill also created a presumption in favor of a low prison term when a
defendant is under 26 years of age at the time of the offense. (Stats. 2021, ch. 695, § 4,
adding § 1016.7; Stats. 2021, ch. 695, § 5.1, adding § 1170, subd. (b)(6)(B).)
Relevant here, section 1170, subdivision (b)(6) provides: “[U]nless the court finds
that the aggravating circumstances outweigh the mitigating circumstances that imposition
of the lower term would be contrary to the interests of justice, the court shall order
imposition of the lower term if any of the following was a contributing factor in the
commission of the offense: [¶] ... [¶] (B) The person is a youth, or was a youth as defined
under subdivision (b) of Section 1016.7 at the time of the commission of the offense.”
(§ 1170, subd. (b)(6); see § 1016.7, subd. (b) [“A ‘youth’ for purposes of this section
includes any person under 26 years of age on the date the offense was committed”].)
Section 1170, subdivision (b)(6)(B) does not require imposition of the lower term
in every case in which the defendant was under age 26 at the time the crime was
committed. Rather, this provision establishes a presumption of the lower term if the
defendant's youth was “a contributing factor” in his or her commission of the crime
“unless the court finds that the aggravating circumstances outweigh the mitigating
circumstances that imposition of the lower term would be contrary to the interests of
justice ....” (§ 1170, subd. (b)(6).)
The People correctly concede the amended version of section 1170, subdivision
(b) that became effective on January 1, 2022, applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal convictions on appeal. (People
v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Under established law, we “assume,
absent evidence to the contrary, that the Legislature intended an ‘amended statute to
apply to all defendants whose judgments are not yet final on the statute's operative
date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) “For the purpose of
3.
determining the retroactive application of an amendment to a criminal statute, the finality
of a judgment is extended until the time has passed for petitioning for a writ of certiorari
in the United States Supreme Court.” (Id. at pp. 341-342, citing People v. Vieira (2005)
35 Cal.4th 264, 305-306.)
Undisputedly, Rodriguez was 25 years and three months of age when he
committed these crimes on August 6, 2020, and therefore under the age of 26.
Accordingly, we agree with the parties that under section 1170, subdivision (b),
Rodriguez’s sentence must be vacated and remanded to the trial court to decide under the
newly amended law whether Rodriguez is entitled to the lower term.
DISPOSITION
The judgment is reversed, and the matter is remanded to the trial court for
resentencing under the amended version of section 1170, subdivision (b). In all other
respects, the judgment is affirmed.
4.