People v. Rodriguez CA2/7

Filed 9/14/20 P. v. Rodriguez CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B303459

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA445443) v.

GERARDO RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen A. Marcus, Judge. Affirmed as modified and with directions. Lori A. Nakaoka, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising

Deputy Attorney General, and David A. Wildman, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Gerardo Rodriguez of two counts of carjacking (Pen. Code, § 215, subd. (a))1 and found true the allegation he committed the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court imposed a sentence of 31 years, which included 10 years for the gang enhancement, 10 years for two five-year enhancements for prior serious felony convictions under section 667, subdivision (a)(1), and one year for a prior prison term under section 667.5, subdivision (b). Rodriguez appealed, and this court affirmed his convictions, but reversed the true finding on the gang allegation and remanded for resentencing. At the resentencing hearing, the court struck the 10-year gang enhancement but did not strike either of the five-year enhancements under section 667, subdivision (a)(1), or the one- year enhancement under section 667.5, subdivision (b). Rodriguez appeals again, arguing he is entitled to another sentencing hearing because the trial court did not recognize at the resentencing hearing it had discretion to strike either or both of the five-year enhancements under section 667, subdivision (a)(1). Rodriguez also argues the one-year enhancement under section 667.5, subdivision (b), must be stricken after the Legislature enacted Senate Bill No. 136, effective January 1, 2020. We strike the one-year enhancement, and otherwise affirm.