People v. Rodriguez CA1/2

Filed 7/11/22 P. v. Rodriguez CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent, A162469
v.
(San Mateo County Super. Ct.
ROBERT JOSEPH RODRIGUEZ,
No. 15-NF-001235-A)
Defendant and Appellant.

Defendant Robert Rodriguez was convicted of two felonies and
originally sentenced to 27 years in prison, including three consecutive five-
year enhancements for prior serious felonies pursuant to Penal Code section
667, subdivision (a)(1) (section 667(a)(1)).1 Rodriguez appealed. (People v.
Rodriguez (Aug. 2, 2018, A149521) [nonpub. opn.].) We affirmed the
conviction, but remanded for resentencing due to an error regarding the
imposition of sentence on one count (criminal threats) instead of the other
(stalking). In December 2018, Rodriguez was resentenced to 23 years in
prison, including the same three five-year enhancements. At the time of this
resentencing, trial courts did not have the discretion to dismiss or strike five-

1 Further undesignated code references are to the Penal Code.

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year enhancements imposed under section 667(a)(1). (People v. Garcia (2018)
28 Cal.App.5th 961, 971 (Garcia).)
Effective January 1, 2019, Senate Bill No. 1393 (2017–2018 Reg. Sess.)
amended section 667(a)(1) to afford trial courts the discretion to strike such
enhancements. (Stats. 2018, ch. 1013, §§ 1–2.) Rodriguez subsequently
petitioned for resentencing pursuant to Senate Bill No. 1393 (Senate Bill
1393).
The trial court found Rodriguez had made a prima facie showing of
entitlement to relief on his petition because he “may show” that his December
2018 judgment of conviction was not final until after January 1, 2019. It
ordered the People to file a response to the petition. After the response was
filed, the presiding judge issued a written order denying the petition based on
an indication by the judge at the December 2018 resentencing hearing that,
even if the trial court could exercise its discretion to strike the enhancements,
it would decline to do so. Rodriguez filed the instant appeal. He argues that
despite his eligibility for relief under Senate Bill 1393, the trial court denied
him due process by failing to appoint counsel to respond on the merits of his
petition, and failing to consider all relevant factors in deciding whether to
grant or deny the petition.
When Rodriguez filed his petition, section 1170, subdivision (d)(1) set
forth the process for recall and resentencing of a criminal defendant who had
been committed to state or local prison. While this appeal was pending, the
Legislature passed Assembly Bill No. 1540 (2021–2022 Reg. Sess.), which
modified and moved the recall and resentencing provisions of former section
1170, subdivision (d)(1) (section 1170(d)(1)) to new section 1170.03. (Stats.
2021, ch. 719, §§ 1–7.) Among other things, section 1170.03 now specifies the
required procedures for recall and resentencing, including appointment of

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counsel and, before the trial court can deny resentencing, a hearing “where
the parties have an opportunity to address the basis for the intended denial
or rejection.” (§ 1170.03, subds. (a)(8) & (b)(1).) We requested supplemental
briefing on whether section 1170.03 was applicable to this case.
We now conclude that reversal is warranted here. First, Rodriguez was
eligible for relief under Senate Bill 1393 because his judgment of conviction
was not final when the new law became effective. Second, we conclude that
the provisions of section 1170.03 apply here. While Assembly Bill No. 1540
(Assembly Bill 1540) was enacted after the denial of Rodriguez’s petition,
section 1170.03 applies retroactively because its provisions clarified the
Legislature’s intent regarding former section 1170(d)(1). And while we agree
with the Attorney General that defendants do not have the right to self-
petition for relief under either former section 1170(d)(1) or section 1170.03,
we deem the issue forfeited for failure to raise it below. Finally, once the trial
court decided to consider the merits of Rodriguez’s petition for resentencing,
we conclude that its summary denial without the provision of section 1170.03
procedures constituted error. We thus reverse and remand for the trial court
to reconsider Rodriguez’s petition for resentencing following appointment of
counsel for Rodriguez and the opportunity for a hearing in accordance with
section 1170.03.
BACKGROUND
A. Conviction and Original Sentencing
In 2016, Rodriguez was convicted of two felonies: criminal threats
(§ 422, subd. (a)) and stalking (§ 646.9, subd. (a)). The trial court
subsequently found Rodriguez had suffered five prior felony convictions. It
granted Rodriguez’s Romero2 motion and struck four of these five priors. The

2 People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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trial court sentenced Rodriguez to an aggregate 27-year prison term. It
selected the stalking count as the principal term, imposed the upper term of
five years, and doubled that term based on Rodriguez’s prior strike pursuant
to section 1170.12, subdivision (c)(1). It also imposed three consecutive five-
year enhancements for prior serious felonies under section 667(a)(1), plus an
additional two years for prior prison terms under section 667.5, subdivision
(b). The trial court stayed imposition of sentence on the criminal threats
count pursuant to section 654.3
B. First Appeal and Resentencing
Rodriguez appealed. We affirmed the conviction, but remanded for
resentencing to correct a sentencing error. (People v. Rodriguez, supra,
A149521.) We determined that stalking should not have been designated as
the principal term because that charge is not a serious felony subject to
enhancements under section 667(a)(1).
On December 14, 2018, the trial court conducted Rodriguez’s
resentencing hearing. At the time of the hearing, trial courts had no
discretion to strike serious felony enhancements under section 667(a)(1).4
The district attorney and defense counsel, however, advised the trial court

3 Rodriguez was also convicted of four misdemeanors: possession of a
device for smoking a controlled substance (Health & Saf. Code, § 11364.1);
being under the influence of a controlled substance (Health & Saf. Code,
§ 11550, subd. (a)); spousal battery (§ 243, subd. (e)(1)); and contempt of court
(§ 166, subd. (c)(1)). The trial court imposed concurrent sentences on these
misdemeanors.
4 Section 667(a)(1) then provided that “any person convicted of a serious
felony who previously has been convicted of a serious felony in this
state . . . shall receive, in addition to the sentence imposed by the court for
the present offense, a five-year enhancement for each such prior conviction on
charges brought and tried separately. The terms of the present offense and
each enhancement shall run consecutively.” (Stats. 1986, ch. 1043, § 1.5.)

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about Senate Bill 1393 and that it could defer sentencing until January 1 if it
elected to exercise that discretion. The trial court responded that it “did not
intend to do that,” but instead impose the original three enhancements, and
thus was “choosing not to resentence in January.”
The trial court did not hear further argument from the parties and
resentenced Rodriguez to an aggregate 23-year prison term. The trial court
designated the criminal threats count as the principal term, imposed the
upper term of three years, and doubled that term based on Rodriguez’s prior
strike. It also imposed the same three five-year enhancements under section
667(a)(1) and additional two years for prior prison terms. The trial court
stayed imposition of sentence on the stalking count pursuant to section 654.
Rodriguez did not appeal the judgment.
C. Rodriguez’s Petition
In July 2020, Rodriguez filed a pro. Per. petition for resentencing
pursuant to Senate Bill 1393. At that time, section 1170(d)(1) set forth the
process for recall and resentencing of a criminal defendant who had been
committed to state or local prison.5 In November 2020, the trial court issued
an order directing the People to file a response to the petition. It found that
Rodriguez had made a prima facie showing of entitlement to relief under
Senate Bill 1393 because he “may show” that his December 2018 judgment of

5 Section 1170(d)(1) then provided that when a defendant has been
committed to state or local prison, the trial court may recall the sentence and
resentence the defendant in a manner not greater than the initial sentence,
either on its own motion within 120 days of the commitment or at any time
upon the recommendation of the Secretary of the California Department of
Corrections and Rehabilitation (Secretary), Board of Parole Hearings (Board),
county correctional administrator, or county district attorney. (Stats. 2018,
ch. 1001, § 2.)

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conviction was not final until after January 1, 2019. The trial court did not
appoint counsel to represent Rodriguez.
The People’s response attached a transcript of the December 14, 2018
resentencing hearing and argued that judge had already considered and
denied Rodriguez’s request for relief under Senate Bill 1393. The People
raised no objection to the form or timeliness of the petition. A few weeks
later, without holding a hearing on the matter, the presiding judge issued a
written order denying the petition. Citing People v. Jones (2019) 32
Cal.App.5th 267 (Jones), it explained that Rodriguez was not precluded from
Senate Bill 1393 relief based on the date of his resentencing, but the judge at
that resentencing hearing “clearly indicated” that the trial court “would not
in any event have stricken the enhancement if it had the discretion to do so.”
This appeal followed.6
DISCUSSION
In this appeal, Rodriguez argues that he was eligible for relief under
Senate Bill 1393, but deprived of process by the trial court’s summary denial
of his petition without appointment of counsel to respond on the merits of his
petition, and without consideration of “all relevant factors” in deciding
whether to grant or deny the petition. Accordingly, we must decide (1)
whether Rodriguez was entitled to relief under Senate Bill 1393; and (2)
whether Rodriguez was entitled to the procedures he was not afforded by the
summary denial of his petition. Because these core questions are statutory in

6 After Rodriguez filed his notice of appeal, the trial court issued a
second amended abstract of judgment. The amended abstract of judgment
entered after the December 2018 resentencing hearing did not indicate any
credit for time served. The second amended abstract of judgment included
768 total credits “as verified by Probation Dept. 05/21/2021.”

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nature, our review is de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
We address each in turn.
I. Eligibility for Relief Under Senate Bill 1393
As described above, Senate Bill 1393 amended section 667, subdivision
(a) to afford trial courts the discretion to strike or dismiss a prior serious
felony enhancement for sentencing purposes. (Garcia, supra, 28 Cal.App.5th
at p. 971.) Senate Bill 1393 applies retroactively to defendants whose
judgments were not final on the date the law became effective. (People v.
Stamps (2020) 9 Cal.5th 685, 699; People v. Alexander (2020) 45 Cal.App.5th
341, 345–346 (Alexander).)
“Senate Bill 1393 applies retroactively to all cases or judgments of
conviction in which a five-year term was imposed at sentencing, based on a
prior serious felony conviction, provided the judgment of conviction is not
final when Senate Bill 1393 becomes effective on January 1, 2019.” (Garcia,
supra, 28 Cal.App.5th at pp. 971–972.) “When an amendatory statute either
lessens the punishment for a crime or, as Senate Bill 1393 does, ‘ “vests in the
trial court discretion to impose either the same penalty as under the former
law or a lesser penalty,” ’ it is reasonable for courts to infer, absent evidence
to the contrary and as a matter of statutory construction, that the Legislature
intended the amendatory statute to retroactively apply to the fullest extent
constitutionally permissible—that is, to all cases not final when the statute
becomes effective.” (Id. at p. 972.) Here, we conclude that Rodriguez was
eligible for relief under Senate Bill 1393 because his December 20, 2019
sentencing was not final on January 1, 2019, when Senate Bill 1393 became
effective.
The Attorney General’s argument to the contrary does not alter this
conclusion. He contends, for the first time on appeal, that Rodriguez’s July

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2020 petition was filed after his December 2019 judgment became final, and
thus the trial court lacked jurisdiction to consider the petition. This
argument is misleading because the determinative question is whether the
judgment of conviction was final when Senate Bill 1393 became effective, not
whether it was final at the time the petition was filed. While the Attorney
General cites Alexander, it does not support his argument. The judgment of
conviction in Alexander became final almost two years before Senate Bill 1393
was enacted. (Alexander, supra, 45 Cal.App.5th at p. 345.)
In any event, we deem this argument forfeited for failure to raise it in
the trial court below. We recognize that “ ‘the power of the courts to
proceed’—i.e., their jurisdiction over the subject matter—cannot be conferred
by the mere act of a litigant, whether it amount to consent, waiver or
estoppel.” (People v. Chadd (1981) 28 Cal.3d 739, 757.) “ ‘But where the
court has general jurisdiction of the subject matter a lack of jurisdiction of
the particular case may be waived by failure to take timely and specific
objections, or an invocation of or submission to the jurisdiction may raise an
estoppel to deny such jurisdiction.’ ” (Young v. Los Angeles (1927) 86
Cal.App. 13, 14.) Moreover, “reviewing courts have required parties to raise
certain issues at the time of sentencing” and in such cases, “lack of a timely
and meaningful objection forfeits or waives the claim.” (People v. Scott (1994)
9 Cal.4th 331, 351.)
When Rodriguez filed his petition, section 1170(d)(1) set forth the
procedure for recall and resentencing of a defendant committed to state or
local prison. “Section 1170(d) is an exception to the common law rule that the
court loses resentencing jurisdiction once execution of sentence has begun.”
(Dix v. Superior Court (1991) 53 Cal.3d 442, 455.) It provided that the trial
court could recall and resentence a defendant “at any time” upon the

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recommendation of the Secretary, Board, correctional administrator, or
district attorney. (Stats. 2018, ch. 1001, § 2.) As explained in People v.
Pillsbury (2021) 69 Cal.App.5th 776, “a plain reading of the statutory
language leads to the conclusion that the court can modify the judgement ‘at
any time,’ even after the judgment has become final.” (Id. at pp. 785–786; see
also People v. Cepeda (2021) 70 Cal.App.5th 456, 464 [recommendation to
recall and resentence gave trial court jurisdiction after judgment of conviction
was final].) Given that the trial court was clearly authorized to consider such
a request for resentencing at the time Rodriguez filed his petition, we
conclude that the trial court had fundamental jurisdiction over the parties
and the subject matter of the petition and that the Attorney General’s
objection, raised for the first time in this appeal, was forfeited.
In sum, we conclude that Rodriguez was eligible for relief under Senate
Bill 1393 because his judgment was not final on January 1, 2019, when the
statute became effective, and that any objection to the timeliness of
Rodriguez’s petition was forfeited by the People’s failure to object below.
II. Entitlement to Section 1170.03 Procedures
We must now consider whether Rodriguez was entitled to certain
procedures—namely, appointment of counsel and opportunity for hearing
before denial—that he was not afforded by the summary denial of his
petition. While the former section 1170(d)(1) did not set out these
procedures, the new section 1170.03 specifies that such procedures are
required for recall and resentencing. (§ 1170.03, subds. (a)(8) [“Resentencing
shall not be denied, nor a stipulation rejected, without a hearing where the
parties have an opportunity to address the basis for the intended denial or
rejection”] & (b)(1) [requiring trial court to provide notice of resentencing

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request to defendant and issue order that sets status conference and appoints
counsel to represent the defendant].)
The Attorney General argues that section 1170.03 does not apply here
because (1) Assembly Bill 1540, which modified and moved the provisions of
former section 1170(d)(1) to section 1170.03, cannot be applied retroactively;
and (2) neither former section 1170(d)(1) nor section 1170.03 authorize
defendants to self-petition for resentencing. We address each argument in
turn.
A. Retroactivity of Assembly Bill 1540
People v. McMurray (2022) 76 Cal.App.5th 1035 (McMurray) discussed
the retroactivity of Assembly Bill 1540 under similar circumstances
presented here. In that case, the trial court had summarily declined
resentencing under former section 1170(d)(1) without explanation.
(McMurray, at p. 1038.) Assembly Bill 1540 was passed while the appeal was
pending. (McMurray, at p. 1040.) McMurray explained: “If an amendment
‘ “ ‘which in effect construes and clarifies a prior statute’ ” ’ was adopted soon
after controversies arose about the proper interpretation of the statute, ‘ “ ‘it
is logical to regard the amendment as a legislative interpretation of the
original act—a formal change—rebutting the presumption of substantial
change.’ ” ’ ” (Id. at p. 1039.) “When a case involving such a clarifying
amendment is on appeal, the appropriate resolution is to reverse and remand
the matter for further proceedings in compliance with the amended
legislation.” (Ibid.)
Assembly Bill 1540 clarified the required procedures for former section
1170(d)(1), “including that, when recalling and resentencing, the court
‘shall . . . apply any changes in law that reduce sentences or provide for
judicial discretion.’ ” (McMurray, supra, 76 Cal.App.5th at p. 1040, quoting

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§ 1170.03, subd. (a)(2).) It also clarified the Legislature’s intent regarding
former section 1170(d)(1), “to ‘ensure due process and equitable application in
these types of resentencing cases.’ ” (McMurray, at p. 1040.) McMurray thus
concluded that, where a case involving former section 1170(d)(1) was on
appeal at the time Assembly Bill 1540 went into effect, the appropriate
remedy is to reverse and remand so that the trial court can consider the
clarified procedure and guidelines of section 1170.03. (McMurray, at
p. 1041.) So too here.
B. Forfeiture of Objection to Self-Petition
The Attorney General also argues for the first time on appeal that
because neither section 1170(d)(1) nor section 1170.03 authorize defendants
to self-petition for resentencing, Rodriguez is not entitled to any procedures
and the trial court lacked jurisdiction to consider his petition. Former section
1170(d)(1) and new section 1170.03 provide for recall and resentencing by
either the trial court’s own motion or upon the recommendation by a
particular entity. (Stats. 2018, ch. 1001, § 2 [Secretary, Board, correctional
administrator, district attorney]; § 1170.03 [adding Attorney General if the
Department of Justice originally prosecuted the case].) While we thus agree
that neither statute provides for self-petitions, we again deem the argument
forfeited. This argument regarding the form of Rodriguez’s request for relief
cannot be raised for the first time on appeal because, as explained above, the
trial court had fundamental jurisdiction over the parties and the subject
matter of the petition. The People forfeited this argument by failing to object
in the trial court.
Absent any such objection, the trial court determined that Rodriguez
had established a prima facie case for relief, ordered the People to respond,
conducted a review, and ultimately denied Rodriguez’s petition. It did not

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appoint counsel for Rodriguez or provide him an opportunity to respond to
argument presented by the People. The trial court even amended the
abstract of judgment after Rodriguez had appealed from the denial. Having
engaged in this process, we conclude that the trial court was required to
afford Rodriguez the procedures now specified in section 1170.03.
In sum, we conclude that any objection to the form of Rodriguez’s
petition was forfeited by the People’s failure to object below and the denial of
Rodriguez’s petition without the provision of section 1170.03 procedures
constituted error.7 While we recognize the general rule from Jones that “[w]e
are not required to remand to allow the court to exercise its discretion if ‘the
record shows that the trial court clearly indicated when it originally
sentenced the defendant that it would not in any event have stricken
[the] . . . enhancement’ even if it had the discretion,” remand is appropriate
here given the intervening passage of Assembly Bill 1540 and our conclusion
that the procedures specified in section 1170.03 apply here. (Jones, supra,
32 Cal.App.5th at p. 273; McMurray, supra, 76 Cal.App.5th at p. 1041.)

7 Given this conclusion, we need not address Rodriguez’s alternative
argument that such procedures should have been afforded pursuant to his
Sixth Amendment and due process rights. We also need not address
Rodriguez’s argument that the trial court failed to consider all relevant
factors on the petition, as we have now clarified the applicability of section
1170.03 (including the consideration of factors as provided in subdivision (4)).
We express no opinion as to the merits of Rodriguez’s petition.

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 DISPOSITION
The February 9, 2021 order denying Rodriguez’s petition for
resentencing is reversed. We remand for reconsideration of the petition in
accordance with the procedures of section 1170.03, with directions to the trial
court to appoint counsel for Rodriguez and conduct a hearing before any
denial of resentencing.

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 _________________________
Mayfield, J.*

We concur:

_________________________
Richman, Acting P.J.

_________________________
Miller, J.

People v. Rodriguez (A162469)

*Judge of the Mendocino Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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