People v. Rodriguez CA2/6

Filed 8/20/20 P. v. Rodriguez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B303428 (Super. Ct. No. 2019029287) Plaintiff and Respondent, (Ventura County)

v.

ELIAS HUMBERTO RODRIGUEZ,

Defendant and Appellant.

Elias Humberto Rodriguez appeals from the judgment after he pled guilty to indecent exposure with a prior indecent exposure conviction (Pen. Code,1 § 314, subd. (1)) and admitted allegations that he had suffered a prior strike conviction (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and served two prior prison terms (§ 667.5, subd. (b)). At sentencing, the trial court struck the prior strike and one of the prison priors and sentenced Rodriguez to two years four months in state

1 Further statutory references are to the Penal Code.

prison. The court also ordered him to pay a sex offender fine (§ 290.3) plus penalties and a surcharge, in the total amount of $1,200. Rodriguez contends he is entitled to have the prior prison term enhancement stricken from his sentence.2 The Attorney General contends we should remand the case to permit the court to conduct a new hearing on the sex offender fine and associated penalties and surcharge. We agree with both contentions, and remand. FACTUAL AND PROCEDURAL HISTORY Prosecutors charged Rodriguez with indecent exposure after police caught him masturbating outside an Oxnard business. They also alleged that he had suffered a prior strike conviction for robbery and served prior prison terms for that conviction and another conviction for receiving stolen property. Rodriguez pled guilty and admitted the allegations in exchange for a stipulated sentence of 16 months on the indecent exposure conviction plus one year on one of the prison priors. The plea agreement stated that he could be ordered to pay a $500 sex offender fine, penalties totaling $27 for every $10 in fines imposed, and a surcharge equal to 20 percent of the base fine. At the sentencing hearing, the trial court struck the prior strike and one of the prison priors and imposed the agreed- upon sentence. The court also ordered Rodriguez to pay a sex offender fine of “$1,200 including penalty assessments,” but did not state how it calculated that amount. Neither Rodriguez nor