People v. Rodriguez CA1/1

Filed 7/17/15 P. v. Rodriguez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A142992

v. (San Mateo County ORLANDO RODRIGUEZ, Super. Ct. Nos. SC074384A & SC075644A) Defendant and Appellant.

In this appeal, appellant challenges his sentencing. The sole issue here is whether the restitution fine and parole revocation restitution fine were improper. The appeal is appropriate pursuant to Penal Code section 1237.1 After reviewing the claims of appellant we find no abuse of discretion by the trial court and affirm the judgment. STATEMENT OF THE CASE On October 6, 2011, the District Attorney of San Mateo County filed an information in superior court in case No. SC074384A, charging appellant with one count of possession of cocaine for purposes of sale, a violation of Health and Safety Code section 11351 (Count One); one count of transportation of cocaine, a violation of Health and Safety Code section 11352 (Count Two); one count of possession of a firearm by a convicted felon, a violation of former section 12021, subdivision (a)(1) (now § 29800) (Count Three); and one count of possession of ammunition by a convicted felon, a

1 Unless otherwise stated, all statutory references are to the California Penal Code.

violation of former section 12316, subdivision (b)(1) (now § 30305, subd. (a)(1)) (Count Four). Included in this information was the allegation that in Counts One and Two appellant was personally armed during the commission of the offenses within the meaning of section 12022, subdivision (c). It was further alleged appellant had previously sustained a felony conviction resulting in a prison term within the meaning of section 667.5, subdivision (b). Appellant entered a not guilty plea to the charges on October 14, 2011. On May 7, 2012, the district attorney filed a second information in case No. SC075644A, accusing appellant of assault with a deadly weapon, a violation of section 245, subdivision (a)(1) (Count One) and one count of active participation in a criminal street gang, a violation of section 186.22, subdivision (a) (Count Two). Regarding Count One, the prosecutor alleged appellant personally inflicted great bodily injury under section 12022.7, subdivision (a) during the commission of the offense. It was also alleged the crime was committed for the benefit of a criminal street gang with the intent to promote, further or assist criminal conduct within the meaning of section 186.22, subdivisions (b)(1)(c) and (b)(1)(b). It was also alleged appellant committed Count One while he was released from custody on bail, a violation of section 12022.1. Appellant entered a not guilty plea to this information on May 9, 2012. On September 13, 2012, information SC074384A was consolidated with SC075644A by the motion of the district attorney. Appellant’s motion to dismiss the gang-related count and allegations pursuant to section 995 was granted in part by the trial court, which dismissed Count Two, the violation of section 186.22, subdivision (a). The trial of the consolidated matters began on August 6, 2013. The jury returned verdicts on August 16, 2013. They found appellant guilty in case No. SC075644A of Count One and found true the allegations of sections 12022.7, subdivision (a) and 12022.1. They were unable to reach a unanimous verdict on the gang enhancement allegation. In information SC074384A, the jury found appellant guilty of Counts Three