People v. Rodrigues CA5

Filed 3/20/23 P. v. Rodrigues 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

FIFTH APPELLATE DISTRICT

THE PEOPLE,
F084141, F084155, F084156
Plaintiff and Respondent,
(Super. Ct. Nos. MCR066482,
v. MCR063615B, & MCR066445)

ROCK ANTHONY RODRIGUES,
OPINION
Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Patrick J. Hennessey, Jr., 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, Darren K. Indermill and John
W. Powell, Deputy Attorney Generals, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On August 14, 2020, in case No. MCR066445, defendant Rock Anthony
Rodrigues entered a plea of guilty to attempted carjacking (Pen. Code, §§ 215, subd. (a),
664; count 2)1 and admitted both a firearm (§ 12022.53, subd. (b)) and great bodily
injury enhancement (§ 12022.7, subd. (a)). In case No. MCR066482, defendant entered a
plea of guilty to felony evading (Veh. Code, § 2800.2, subd. (a); count 1). He also
admitted a violation of probation in case No. MCR063615B. As part of the plea
agreement, the trial court imposed the aggravated term in case No. MCR066445, for a
total sentence of 17 years 6 months, with two consecutive eight-month terms in case
Nos. MCR066482 and MCR063615B. The total agreed upon aggregate term was
18 years 10 months.
On March 21, 2022, in case No. MCR066445, the trial court, consistent with
section 1170, subdivision (b)(1), imposed the middle term of two years six months, with
a consecutive 10-year term for the firearm enhancement (§ 12022.53, subd. (b)) and a
consecutive three-year term for the great bodily injury enhancement (§ 12022.7,
subd. (a)). The trial court also imposed two consecutive eight-month sentences for case
Nos. MCR066482 and MCR063615B. In case No. MCR063615B, the trial court
imposed $890 in fines and fees. Further, in case No. MCR066445, the trial court
imposed a $750 presentence report fee. The total aggregate sentence imposed was
16 years 10 months.
On appeal, defendant contends: (1) the recent changes to our sentencing scheme,
as amended by Senate Bill No. 567 (2021-2022 Reg. Sess.) (Senate Bill 567), Assembly
Bill No. 124 (2021-2022 Reg. Sess.) (Assembly Bill 124), and Assembly Bill No. 1540
(2021-2022 Reg. Sess.) (Assembly Bill 1540), requires resentencing consistent with these
recent amendments; and (2) in light of Assembly Bill No. 1869 (2019-2020 Reg. Sess.)
(Assembly Bill 1869), this case should be remanded for the trial court to clarify the $890
in fines and fees imposed in case No. MCR063615B.

1 All further references are to the Penal Code, unless otherwise stated.

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 We conclude defendant is entitled to be resentenced consistent with the changes to
section 1170, and impose only the correct assessments, fines, and fees permitted by law.
Therefore, we vacate the sentence and remand for resentencing.
STATEMENT OF CASE
On March 21, 2022, defendant was sentenced on three separate cases filed in the
Madera Superior Court: MCR066445, MCR063615B, and MCR066482. 2 Defendant
was sentenced in these three cases to a total aggregate term of 16 years 10 months. We
discuss defendant’s three separate cases in more detail below.
I. MCR066445
On August 12, 2020, the Madera County District Attorney filed a first amended
criminal complaint charging defendant with assault with a semiautomatic firearm (§ 245,
subd. (b); count 1); attempted carjacking (§§ 215, subd. (a), 664; count 2); and unlawful
possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). As to counts 1 and 2,
it was further alleged defendant personally used a firearm during the commission of the
offenses (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and that he inflicted great bodily
injury upon the victim (§ 12022.7, subd. (a)).
II. MCR063615B
On July 19, 2019, the Madera County District Attorney filed a first amended
criminal complaint charging defendant with a single count of first degree burglary
(§§ 459, 460, subd. (a); count 1). On July 25, 2019, defendant pled guilty to an amended
second degree burglary (§§ 459, 460, subd. (b); count 1), and was subsequently granted
felony probation. On May 21, 2020, probation filed a petition for revocation of probation

2 Subsequently, defendant filed three separate appeals, which were assigned case
Nos. F084155, F084156, and F084141, respectively. Defendant then filed a motion with
this court to consolidate the three separate appeals into a single case number for briefing
purposes. On June 8, 2022, this court granted defendant’s request for consolidation and
ordered the three appeals consolidated under case No. F084141.

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alleging numerous law violations, and defendant subsequently acknowledged receipt of
the petition.
III. MCR066482
On June 4, 2020, the Madera County District Attorney filed a criminal complaint
charging defendant with felony evading (Veh. Code, § 2800.2, subd. (a); count 1);
displaying false evidence of registration of a vehicle (Veh. Code, § 4462.5; count 2); and
resisting a peace officer (§ 148, subd. (a)(1); count 3).
IV. Plea Agreement and Sentencing
On August 14, 2020, in case No. MCR066445, defendant entered a plea of guilty
to count 2, attempted carjacking (§§ 215, subd. (a), 664), and admitted the allegations he
used a firearm during the commission of the offense (§ 12022.53, subd. (b)) and inflicted
great bodily injury on the victim (§ 12022.7, subd. (a)). In case No. MCR066482,
defendant entered a plea of guilty to felony evading (Veh. Code, § 2800.2, subd. (a)), and
admitted a violation of probation in case No. MCR063615B.3 In case No. MCR066445,
the plea agreement stated the maximum sentence that could be imposed was 17 years
6 months, with two additional consecutive sentences to be imposed in case
Nos. MCR066482 and MCR063615B, for a total aggregate term of 18 years 10 months. 4
On March 21, 2022, during defendant’s sentencing, the relevant exchange
occurred between the trial court, trial counsel, and the prosecutor:

“[PROSECUTOR]: Your Honor, so this defendant plead quite
some time ago to the aggravated term and so the People would be asking
for a, I guess, an admission or waiver of the factors in aggravation.

3 As a part of the plea agreement, case No. MCR066455A was dismissed.
4 There is dispute as to whether defendant agreed to a “stipulated sentence” as part
of the plea agreement or whether the agreement stated a “maximum sentence” that could
be imposed by the trial court. Regardless, as we discuss further below, even if defendant
agreed to a “stipulated sentence,” he is still entitled to resentencing because the recent
amendments to section 1170 apply to stipulated sentences.

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 “[DEFENSE COUNSEL]: We are not making any waivers. We
basically just either be sentenced on what he wanted or to withdraw his
pleas.

“THE COURT: All right. Well – [¶] [Prosecutor], I only have
two options: You can ask me to reject the plea bargain at this time or I can
sentence him to the median term. It is a plea bargain for 17 years,
6 months. [¶] … [¶]

“[PROSECUTOR]: … So I have the terms of the original plea
agreement that he plead to the attempted 215 for the aggravated. That case,
let’s see, he admitted the [1]2022.53 sub (b) allegation and admitted the
GBI enhancement for 17 years, 6 months.

“THE COURT: Right.

“[PROSECUTOR]: Then he also admitted 482 for eight months
consecutive.

“THE COURT: And an open admission for a total of 18 years and
2 months.

“[PROSECUTOR]: I have 18 years, 8 months.

“THE COURT: Okay.

“Let me see here. That’s what – I’m just going off what the …

“[PROSECUTOR]: And I think the 18 years, 8 months, does not
include the VOP admission because –

“THE COURT: You’re right. You’re right. So the total was
18 years, 10 months.

“[PROSECUTOR]: 18 years, 10 months.

“Okay.

“[DEFENSE COUNSEL]: May I respond?

“THE COURT: That is the agreement. The fact of the matter is
that I can’t impose the aggravated term though.

“So, [prosecutor], you want me to impose the middle term or you
want me to reject the plea?

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 “[PROSECUTOR]: No, the middle term is fine. I just wanted to
make sure that the rest of it was clear.”
In case No. MCR066445, the trial court sentenced defendant on count 2 (§§ 215,
subd. (a), 664) to the middle term of two years six months, and imposed a 10-year
consecutive term for the firearm enhancement (§ 12022.53, subd. (b)) and a three-year
consecutive term for the great bodily injury enhancement (§ 12022.7, subd. (a)). In case
Nos. MCR066482 and MCR063615B, the trial court sentenced defendant to two
consecutive eight-month terms (one-third the middle term of three years). Additionally,
as to case No. MCR063615B, the trial court imposed $890 in fines and fees 5 pursuant to
section 672. The total aggregate term imposed was 16 years 10 months.
DISCUSSION 6
I. Defendant is Entitled to Resentencing
On appeal, defendant contends the recent amendments to section 1170 apply to his
case and thus he is entitled to be resentenced consistent with these changes. We agree.
A. Applicable Law
Prior to Senate Bill 567, section 1170, subdivision (b) provided as follows:

“When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. At least four days prior to the time
set for imposition of judgment, either party or the victim, or the family of

5 The fines and fees imposed consisted of the following:
-$200 base fine
-$340 state and local penalty assessment (§ 1464; Gov. Code, § 76000)
-$40 criminal surcharge (§ 1465.7)
-$100 state court facility charge (Gov. Code, § 70372, subd. (a))
-$40 court operations assessment (§ 1465.8, subd. (a)) ($40 per convicted charge)
-$100 DNA penalty assessment (Gov. Code, §§ 76104.6, 76104.7)
-$40 EMS (Gov. Code, § 76000.5)
-$30 criminal conviction assessment (Gov. Code, § 70373) ($30 per convicted
charge)
6 The underlying facts of the case are irrelevant to our resolution of the issues
presented on appeal. We therefore will not summarize the facts.

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 the victim if the victim is deceased, may submit a statement in aggravation
or mitigation. In determining the appropriate term, the court may consider
the record in the case, the probation officer’s report, other reports, including
reports received pursuant to [s]ection 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the defendant, or
the victim, or the family of the victim if the victim is deceased, and any
further evidence introduced at the sentencing hearing. The court shall
select the term which, in the court’s discretion, best serves the interests of
justice. The court shall set forth on the record the reasons for imposing the
term selected and the court may not impose an upper term by using the fact
of any enhancement upon which sentence is imposed under any provision
of law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.” (Former § 1170, subd. (b).)
As amended effective January 1, 2022, section 1170, subdivision (b) provides in
relevant part, “When a judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the court shall, in its sound discretion, order imposition of
a sentence not to exceed the middle term.” (§ 1170, subd. (b)(1).) “The court may
impose a sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term … exceeding the middle
term, and the facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the jury or by
the judge in a court trial.” (Id., subd. (b)(2).)
Further, Assembly Bill 124 sets a presumption the trial court will impose the lower
term under enumerated circumstances, such as where an offender’s childhood trauma or
youth were contributing factors in the offense. The legislation added subdivision (b)(6)
to section 1170 that reads as follows:

“(6) Notwithstanding paragraph (1), and 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,
the court shall order imposition of the lower term if any of the following
was a contributing factor in the commission of the offense:

“(A) The person has experienced psychological, physical, or childhood
trauma, including, but not limited to, abuse, neglect, exploitation, or sexual
violence.

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 “(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.

“(C) Prior to the instant offense, or at the time of the commission of the
offense, the person is or was a victim of intimate partner violence or human
trafficking.” (§ 1170, subd. (b)(6); Stats 2021, ch. 695, § 5.1, eff. Jan. 1,
2022.)
Section 1016.7, subdivision (b), states: “A ‘youth’ for purposes of this section includes
any person under 26 years of age on the date the offense was committed.”
Lastly, Assembly Bill 1540, which became effective January 1, 2022, clarified the
Legislature’s intent regarding procedural requirements and the provision’s application to
“ameliorative laws … that reduce sentences or provide for judicial discretion, regardless
of the date of the offense or conviction.” (Stats. 2021, ch. 719, § 1(i).) Specifically,
when the California Department of Corrections and Rehabilitation recommends recall
and resentencing, the trial court is also now required to hold a hearing (unless the parties
otherwise stipulate), state on the record its reasons for its decision, provide notice to the
defendant, and appoint counsel for the defendant. (§ 1172.1, subds. (a)(6)-(8), (b)(1).)
Additionally, where a resentencing request is made, there is now a presumption in favor
of recall and resentencing of the defendant, “which may only be overcome if a court
finds the defendant is an unreasonable risk of danger to public safety.” (§ 1172.1,
subd. (b)(2).)
B. Analysis
Defendant contends this case must be remanded for resentencing under
section 1170, subdivision (b)(6), which now requires a trial court to impose the lower
term when certain conditions exist. Specifically, defendant argues his youth (20 years
old) at the time of the offense entitles him to the benefit of these changes. We agree.
Section 1170, subdivision (b)(6), as amended by Assembly Bill 124, now requires
the trial court to impose the lower term if a person’s youth was a contributing factor in
the commission of the offense, “unless the court finds that the aggravating circumstances
outweigh the mitigating circumstances that imposition of the lower term would be

8.
contrary to the interests of justice.” (§ 1170, subd. (b)(6).) Here, although the trial court
noted the changes to section 1170, in that it could no longer impose the aggravated term
as mandated by the plea bargain, it never addressed defendant’s age, nor did it mention
the presumption of a lower term. Under these circumstances, we will vacate defendant’s
sentence and remand for a full resentencing to give the trial court the opportunity to
expressly consider defendant’s youth and also, as appropriate, the possible application of
section 1170, subdivision (b)(2) and (b)(3).
Nonetheless, the People argue the changes to section 1170 do not apply to this
case, and therefore remand is not required, “[b]ecause the trial court sentenced
[defendant] pursuant to a stipulated sentenced and lacked discretion to impose a lower
term.” Specifically, the People direct this court to the holding in People v. Brooks (2020)
58 Cal.App.5th 1099 (Brooks), reasoning that when a plea agreement stipulates that the
upper term be imposed, the trial court exercise no discretion and may not make the
finding required by section 1170, subdivision (b). 7 Defendant contends the record is
unclear as to whether he entered into “a stipulated sentence or whether he had been
advised it was likely he was going to receive the maximum term.” As we discuss further
below, even assuming defendant entered into a stipulated sentence as a part of the plea
bargain, defendant is still entitled to the ameliorative changes to section 1170.
In Brooks, the defendant entered into a plea agreement to a 19-year 8-month
sentence. (Brooks, supra, 58 Cal.App.5th at p. 1102.) The defendant petitioned the trial
court to be resentenced, pursuant to recently enacted section 1170.91, subdivisions (a)
and (b)(1), which, collectively required the trial court to consider specific mental health
problems as circumstances in mitigation when sentencing military veterans and permitted
military veterans with such problems to petition for a recall of sentence. (Brooks, at

7 We do note our Supreme Court granted review on the issue of whether Senate Bill
567 applies retroactively to a defendant sentenced pursuant to a stipulated plea
agreement. (People v. Mitchell (2022) 83 Cal.App.5th 1051, 1057‒1059, review granted
Dec. 14, 2022, S277314.)

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pp. 1102‒1103; § 1170.91, subds. (a) & (b)(1); see § 1170.91 [“court shall consider the
[identified] circumstance as a factor in mitigation when imposing a sentence”].) The trial
court concluded that it had no power to resentence the defendant because his plea
agreement provided for a stipulated term. (Brooks, at p. 1103.) The appellate court
affirmed, concluding that section 1170.91 does not “extend[] to sentences based on final
convictions by plea agreement specifying a stipulated imprisonment term.” (Brooks, at
p. 1106.) The court explained there was no “triad sentencing discretion to exercise”
because the plea agreement specified the sentence to be imposed and, pursuant to section
1192.5, no other sentence could properly be imposed. (Brooks, at pp. 1106‒1107.)
The Brooks court distinguished its case from People v. Stamps (2020) 9 Cal.5th
685 (Stamps), where the court was required to apply a retroactive ameliorative change in
the law that provided new discretion to dismiss an enhancement (see § 1385; Brooks,
supra, 58 Cal.App.5th at p. 1107). In Brooks, however, section 1170.91 did not “grant
the trial court unfettered discretion to reconsider an aspect of his sentence that would in
turn affect his plea bargain. All it [did was] allow a court to take certain mitigating
factors into account, and only insofar as the court is otherwise permitted to exercise
discretion in the selection of a low, middle, or high term from within the applicable
sentencing triad.” (Brooks, at p. 1107.)
Brooks is not controlling here. Section 1170.91 does not parallel section 1170,
subdivision (b)(1), (2), and (6). The amendment to section 1170, subdivision (b)(6) does
not merely require the trial court to consider additional factors in reaching a
determination; it states the “court shall order imposition of the lower term” if it concludes
a defendant’s age was a contributing factor in the commission of the offense. (§ 1170,
subd. (b)(6), italics added.) Further, before imposing the middle term, the trial court is
required to “find[] that the aggravating circumstances outweigh the mitigating
circumstances.” (Ibid.) The parties may stipulate to the existence of facts that support

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such a determination by negotiated plea agreement, but the trial court must still make the
required determination.
Although the trial court reduced defendant’s sentence to the middle term for
count 2 in case No. MCR066445, in accordance with section 1170, subdivision (b)(1), it
was still required to consider whether defendant’s youth was a contributing factor in the
commission of the offense, and before imposing the middle term, it was required to
“find[] that the aggravating circumstances outweigh the mitigating circumstance”
(§ 1170, subd. (b)(6)), which it did not do in this case. Accordingly, defendant’s sentence
does not meet the requirements of section 1170, subdivision (b)(6), as amended by
Assembly Bill 124, and therefore must be vacated and remanded for resentencing.
On remand, if the trial court indicates “an inclination to exercise its discretion,”
the prosecutor could “agree to modify the bargain to reflect the downward departure in
the sentence such exercise would entail. Barring such a modification agreement, ‘the
prosecutor is entitled to the same remedy as the defendant—withdrawal of assent to the
plea agreement….’ ” (Stamps, supra, 9 Cal.5th at p. 707.) Our Supreme Court also
noted the trial court “may withdraw its prior approval of the plea agreement.” (Id. at
p. 708.)
We do not address the merits of defendant’s additional claims regarding the
applicability of Senate Bill 567 and Assembly Bill 1540 to his sentence in light of our
decision that remand is necessary under Assembly Bill 124. (People v. Valenzuela
(2019) 7 Cal.5th 415, 424‒425 [“[T]he full resentencing rule allows a court to revisit all
prior sentencing decisions when resentencing a defendant”]; accord, People v. Buycks
(2018) 5 Cal.5th 857, 893 [“the full resentencing rule”].)
II. Fines and Fees
Defendant further contends the “$890 fine imposed by the court in case
MCR063615B is somewhat unclear and not sufficiently specified such as to make the
fines enforceable/collectable under Assembly Bill 1869” and therefore “the matter should

11.
be remanded to the Superior Court to clarify those fines and any portion of those
judgments imposing improper fines must be vacated.” Because defendant is entitled to a
full resentencing (see People v. Valenzuela, supra, 7 Cal.5th at pp. 424‒425), we direct
the trial court on remand to impose only the assessments, fines, and fees permitted by
law.
A. Applicable Law
“Effective July 1, 2021, Assembly Bill 1869 ‘eliminate[d] the range of
administrative fees that agencies and courts are authorized to impose to fund elements of
the criminal legal system and … eliminate[d] all outstanding debt incurred as a result of
the imposition of [identified] administrative fees.’ ” (People v. Greeley (2021)
70 Cal.App.5th 609, 625, quoting Stats. 2020, ch. 92, § 2.) Specifically, Assembly
Bill 1869 added Government Code section 6111, which provides: “On and after July 1,
2021, the unpaid balance of any court-imposed costs pursuant to Section 27712,
subdivision (c) or (f) of Section 29550, and Sections 29550.1, 29550.2, and 29550.3, as
those sections read on June 30, 2021, is unenforceable and uncollectible and any portion
of a judgment imposing those costs shall be vacated.” (Gov. Code, § 6111, subd. (a).)
Further, Assembly Bill 1869 added section 1465.9, which provides: “The balance
of any court-imposed costs pursuant to Section 987.4, subdivision (a) of Section 987.5,
Sections 987.8, 1203, 1203.1e, 1203.016, 1203.018, 1203.1b, 1208.2, 1210.15, 1463.07,
3010.8, 4024.2, and 6266, as those sections read on June 30, 2021, shall be unenforceable
and uncollectible and any portion of a judgment imposing those costs shall be vacated.”
(§ 1465.9, subd. (a).) Additionally, subdivision (b) of section 1465.9 provides: “On and
after January 1, 2022 the balance of any court-imposed costs pursuant to Section 1001.15,
1001.16, 1001.90, 1202.4, 1203.1, 1203.1ab, 1203.1c, 1203.1m, 1203.4a, 1203.9, 1205,
1214.5, 2085.5, 2085.6, or 2085.7, as those sections read on December 31, 2021, shall be
unenforceable and uncollectible and any portion of a judgment imposing those costs shall
be vacated.”

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 B. Analysis
Defendant contends the fines associated with case No. MCR063615B are unclear
and not sufficiently specified as to make them enforceable. Further, the People raise
issue with the trial court’s imposition of the $750 presentence report fee imposed in case
No. MCR066445. Specifically, the People state the $750 presentence report fee imposed
pursuant to section 1203.1b is now unenforceable and uncollectible under section 1465.9,
subdivision (a). Because defendant is entitled to a full resentencing (see People v.
Valenzuela, supra, 7 Cal.5th at pp. 424‒425), the trial court on remand should ensure that
only the correct assessments, fines, and fees are imposed, and that it orally states what
will be imposed.
Additionally, although not addressed by either party, defendant is entitled at the
resentencing hearing to request a hearing and present evidence demonstrating his
inability to pay the assessments, fines, and fees that are imposed or suspended. (People
v. Belloso (2019) 42 Cal.App.5th 647, 662, review granted Mar. 11, 2020, S259755;
People v. Dueñas (2019) 30 Cal.App.5th 1157, 1172‒1173.)
DISPOSITION
Defendant’s sentence is vacated and this matter is remanded for resentencing
consistent with this opinion.

DE SANTOS, J.
WE CONCUR:

PEÑA, Acting P. J.

SMITH, J.

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