People v. Rodriguez CA1/2

Filed 2/25/25 P. v. Rodriguez CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A169053 v. ANTHONY RODRIGUEZ, (San Mateo County Super. Ct. No. 18NF016063A) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Anthony Rodriguez appeals following a no contest plea and imposition of a 12-year state prison sentence, which included 10 years for a gun-use enhancement under Penal Code section 12022.53. (All further statutory references are to the Penal Code.) On appeal from this sentence, he contends the trial court misunderstood the scope of its discretion under amendments to section 12022.53 that allow the court to impose a lesser firearm enhancement, and the case should be remanded for resentencing. He argues separately that his defense counsel was ineffective at sentencing. The Attorney General agrees that remand for resentencing is appropriate because the record suggests that the trial court did not understand its full sentencing

1 We resolve this case by a memorandum opinion pursuant to

California Standards of Judicial Administration, standard 8.1(1), (2).

1

discretion. We agree with Rodriguez and the Attorney General that the matter should be remanded for resentencing. In light of our holding, we need not reach the arguments about ineffective assistance of counsel. BACKGROUND On June 10, 2022, as part of a negotiated disposition, Rodriguez pleaded no contest to two counts of second degree robbery (§ 212.5, subd. (c); counts 1 and 2) and assault on a police officer (§ 245, subd. (c); count 8), and admitted that he personally used a firearm (§ 12022.53) in connection with count 1. Rodriguez also admitted that each of these counts was a serious felony. The maximum penalty for the charges was 18 years, 8 months; under the negotiated disposition, the agreed-upon maximum sentence was 12 years and the remaining charges in the information would be dismissed. The issue of the gun enhancement came up at the sentencing hearing on September 1, 2023.2 At the conclusion of his comments on the appropriate sentence, defense counsel stated, “I think the big push here is to have the Court stay or strike the 12022.53. That opens up a lot of options that I think would be much more appropriate than sentencing him to the top. [¶] And finally, I just want to point out to the Court that prior to this case, the most significant sentence my client’s done is a two-year 1170(h) sentence. Other than that, I will submit unless the Court has any questions.” The court did have a question. The trial judge immediately asked, “So in terms of the motion to strike the 12022.53, the Court, as I understand it under present law now, has the option to substitute a 12022.5 as well. Is that correct or no?” Defense counsel responded, “I don’t think so, Your Honor.”