Filed 6/22/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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,
F081242, F081243
Plaintiff and Respondent,
(Super. Ct. Nos. BF165668A,
v. BF169664A)
EDUARDO VALDIVIAS RODRIGUEZ,
OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Charles R.
Brehmer, Judge.
Conness A. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer
M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P.J., Smith, J. and Snauffer, J.
Defendant Eduardo Valdivias Rodriguez entered into a plea agreement with a
stipulated sentencing range. The trial court imposed a sentence that included one
one-year prior prison term enhancement. Defendant contends on appeal that his one-year
prior prison term enhancement should be stricken pursuant to Penal Code section 667.5,
subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate
Bill 136). The People agree. If the prior prison term enhancement is stricken,
defendant’s sentence will remain within the range set by the plea agreement. Defendant
and the People therefore further agree that remand for resentencing or to permit the
prosecutor or the trial court to withdraw approval for the plea agreement is unnecessary.
We agree with the parties that permitting the prosecutor and trial court an opportunity to
withdraw from the plea agreement is not required but remand is appropriate for the trial
court to resentence defendant to a sentence consistent with the plea agreement in light of
the changed circumstances. We therefore vacate defendant’s sentence and remand with
directions for the trial court to strike defendant’s prior prison term enhancement and
resentence defendant. In all other respects, we affirm.
PROCEDURAL SUMMARY
The Charges
Kern County Case No. BF165668A
On November 7, 2016, the Kern County District Attorney filed an information in
case No. BF165668A charging defendant with escape from electronic monitoring
(§ 4532, subd. (b)(2); count 1) and failure to return to confinement (§ 4532, subd. (e);
count 2). The information further alleged that defendant had suffered three prior serious
felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served four prior prison terms
(§ 667.5, subd. (b)).
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On February 22, 2017, defendant pled no contest to count 1, admitted having
suffered two prior strike convictions, and admitted having served four prior prison terms.
Count 2 was dismissed on the People’s motion.
On the same date, the trial court indicated it would impose a 15-year suspended
sentence, with one year to be served in custody. The trial court then released defendant
pending sentencing in six months on a Cruz2 waiver. Before sentencing took place,
defendant was charged with new offenses.
Kern County Case No. BF169664A
On March 5, 2018, the Kern County District Attorney filed an amended
information in case No. BF169664A charging defendant with inflicting corporal injury
resulting in a traumatic condition on a person in a dating relationship (§ 273.5, subd. (a);
count 1), dissuading a witness (§ 136.1, subd. (b)(2); count 2), and misdemeanor
knowingly violating a protective order (§ 166, subd. (c)(1); count 3). As to count 1, the
information further alleged defendant personally inflicted great bodily injury (§ 12022.7,
subd. (e)) and committed the offenses while released from custody pending judgment
(§ 12022.1). As to counts 1 and 2, the information further alleged defendant had suffered
a prior strike conviction (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) which also
qualified as a prior serious felony conviction (§ 667, subd. (a)). The information alleged
defendant had served three prior prison terms (§ 667.5, subd. (b)) with respect to count 1,
and four prior prison terms with respect to count 2.
The Plea Agreement and Sentence
On March 6, 2018, defendant entered a plea agreement with a stipulated
sentencing range of 20 to 22 years which resolved the charges in case Nos. BF165668A
and BF169664A and violation of postrelease community supervision violations in case
Nos. BV008116A and BV006755A. As to case No. BF169664A, defendant pled
2 People v. Cruz (1988) 44 Cal.3d 1247, 1249.
3.
no contest to counts 1 and 2 pursuant to a negotiated plea agreement. Count 3 was
dismissed on the prosecutor’s motion. As to count 1, he admitted personally inflicting
great bodily injury and committing the offense while released from custody pending
judgment. On counts 1 and 2, he admitted having suffered a prior strike conviction and
prior serious felony conviction, and having served three prior prison terms. Defendant
admitted that the prior prison terms were served for convictions of robbery (§ 211),
assault with a deadly weapon (§ 245, subd. (a)(1)), and carrying a concealed dirk or
dagger (§ 21310). On the same date, pursuant to the plea agreement, defendant admitted
two violations of postrelease community supervision in case Nos. BV008116A and
BV006755A.
On April 5, 2018, the trial court sentenced defendant to a total term of 21 years
eight months in prison as follows: on count 1 of case No. BF169664A, four years (the
lower term of two years doubled due to the prior strike conviction), plus a three-year
infliction of great bodily injury enhancement, a two-year commission of the offense
while on prejudgment release enhancement, a five-year serious felony conviction
enhancement, and a one-year prior prison term enhancement; on count 2 of case
No. BF169664A, four years (the middle term of two years doubled due to the prior strike
conviction) to be served consecutively to the term on count 1; on count 1 of case
No. BF165668A, two years eight months (one-third of the middle term of four years
doubled due to the prior strike conviction) to be served consecutively to the term on
count 1 of case No. BF169664A; on the violations of postrelease community supervision
in case Nos. BV008116A and BV006755A, concurrent terms of 180 days with credit for
time served.
The Prior Appeal and Remand
On April 19, 2018, defendant filed notices of appeal.
On September 30, 2018, before defendant’s appeal was final, the Governor signed
Senate Bill No. 1393 which, effective January 1, 2019, amended sections 667(a) and
4.
1385(b) to allow a trial court to exercise its discretion to strike or dismiss a prior serious
felony conviction for sentencing purposes. (2017–2018 Reg. Sess.) (Stats. 2018,
ch. 1013, §§ 1–2.)
On October 10, 2019, we vacated defendant’s sentence and remanded the matter to
the trial court with direction to “consider whether to exercise its discretion to strike the
prior serious felony conviction enhancement (§ 667, subd. (a)).” We affirmed in all other
respects.
On May 20, 2020, after the parties briefed the issue, the trial court declined to
strike the prior serious felony conviction enhancement.
On May 26, 2020, defendant filed notices of appeal.
DISCUSSION3
A. Defendant’s Prior Prison Term Enhancement Must Be Stricken
Defendant argues his prior prison term enhancement must be stricken based on the
retroactive application of Senate Bill 136. The People agree, as do we.
Effective January 1, 2020, Senate Bill 136 amended section 667.5, subdivision (b)
to limit application of prior prison term enhancements to only prior prison terms that
were served for sexually violent offenses as defined by Welfare and Institutions Code
section 6600, subdivision (b). (§ 667.5, subd. (b).) (Stats. 2019, ch. 590, § 1.) That
amendment applies retroactively to all cases not yet final on Senate Bill 136’s effective
date. (People v. Lopez (2019) 42 Cal.App.5th 337, 341–342, citing In re Estrada (1965)
63 Cal.2d 740, 742.)
Here, the trial court imposed a one-year section 667.5, subdivision (b) prior prison
term enhancement. While the trial court did not identify which of defendant’s
three admitted prior prison terms served as the basis for the enhancement, the terms were
3 Because defendant raises only sentencing issues, the facts underlying the offenses
are not relevant and are omitted from this opinion.
5.
served for robbery (§ 211), assault with a deadly weapon (§ 245, subd. (a)(1)), and
carrying a concealed dirk or dagger (§ 21310), none of which is a sexually violent offense
as defined in Welfare and Institutions Code section 6600, subdivision (b). On January 1,
2020, defendant’s case was not yet final. Therefore, as the parties agree, defendant is
entitled to the ameliorative benefit of Senate Bill 136’s amendment to section 667.5,
subdivision (b). Defendant’s prior prison term enhancement must therefore be stricken.
Generally, where an appellate court strikes a portion of a sentence, remand for “ ‘a
full resentencing as to all counts is appropriate, so the trial court can exercise its
sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018)
5 Cal.5th 857, 893.) That rule applies equally to resentencing after reversal of a count of
conviction or striking of an enhancement. (See ibid., citing with approval People v.
Sanchez (1991) 230 Cal.App.3d 768, 771–772 [consideration of all sentencing choices on
remand is appropriate after reversal for erroneous application of a section 12022.1 on-bail
enhancement]; People v. Lopez, supra, 42 Cal.App.5th at p. 342.)
However, the full resentencing rule is limited when a plea agreement specifies the
punishment to be imposed because a trial court “ ‘may not proceed as to the plea other
than as specified in the plea.’ ” (People v. Barton (2020) 52 Cal.App.5th 1145, 1156.) A
plea agreement is a form of contract to which a court consents to be bound by approving
the agreement. (People v. Segura (2008) 44 Cal.4th 921, 929–930.) A trial court “may
approve or reject [a negotiated plea] agreement, but the court may not … [approve the
agreement and then] effectively withdraw its approval by later modifying the terms of the
agreement it had approved.” (Id. at pp. 931−932; see § 1192.5.) Therefore, when a
portion of an agreed-upon sentence must be stricken, remand for resentencing would be
futile and thus not appropriate if no amended sentence could conform with the terms of
6.
the plea agreement. (See Barton, at p. 1156; People v. Hernandez (2020) 55 Cal.App.5th
942, 957.)4
Here, the parties negotiated a sentencing range—20 to 22 years’ imprisonment.
The trial court accepted the plea and sentenced defendant to a term of 21 years eight
months. When defendant’s prior prison term enhancement is stricken, defendant’s
remaining term will be 20 years eight months. That sentence falls within the sentencing
range negotiated by the parties and approved by the trial court. As the parties agree,
striking the prior prison term enhancement therefore does not run afoul of the plea
agreement and does not require us to remand to permit the prosecutor or trial court to
withdraw from the plea agreement. (See People v. Hernandez, supra, 55 Cal.App.5th at
pp. 954, 958–959.)
However, remand to resentence defendant to a term consistent with the plea
agreement, in light of changed circumstances, would not be futile. The remaining
sentence after striking defendant’s prior prison term enhancement would not be the
highest available term permissible under the plea agreement5 nor has the trial court
4 We also note that a trial court cannot ignore a change in the law and decline to
modify an agreed-upon sentence as based on the terms of a plea agreement. (See Doe v.
Harris (2013) 57 Cal.4th 64, 66 [“That the parties enter into a plea agreement … does not
have the effect of insulating them from changes in the law that the Legislature has
intended to apply to them.”].) A defendant is entitled to the benefit of ameliorative
changes in the law like that effectuated by Senate Bill 136. Such unknown future
benefits cannot be waived by plea bargain. (§ 1016.8, subds. (a) & (b).)
5 For instance, the trial court could modify the sentence to impose the middle term
of six years (rather than the low term of four years) on count 1 of case No. BF169664A,
the upper term of six years (rather than the middle term of four years) on count 2 of case
No. BF169664A, and strike the great bodily injury enhancement attached to count 1 of
case No. BF169664A to arrive at the original sentence of 21 years eight months. We do
not take a position on whether that would constitute an appropriate sentence. We note
only that because the trial court has a calculation method available to it that would allow
it to reach the same sentence, remand is appropriate for the trial court to resentence
defendant. (See People v. Torres (2008) 163 Cal.App.4th 1420, 1431–1433.)
7.
indicated that it certainly would not resentence defendant to the same term of 21 years
eight months using a different calculation method. (People v. Gastelum (2020) 45
Cal.App.5th 757, 772–773; see People v. Flores (2020) 9 Cal.5th 371, 431–432; People
v. Buycks, supra, 5 Cal.5th at p. 893.) We will therefore remand the matter to the trial
court to resentence defendant in compliance with the plea agreement.
In resentencing defendant, the trial court cannot impose a higher sentence than the
21 years eight months it originally imposed. (People v. Torres, supra, 163 Cal.App.4th at
pp. 1431–1433; People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1310–1312.)
DISPOSITION
The sentence is vacated and the matter remanded to the superior court with
directions to strike the prior prison term enhancement (§ 667.5, subd. (b)) and resentence
defendant to a sentence consistent with the plea agreement that does not exceed 21 years
eight months. In all other respects, the judgment is affirmed.
8.