People v. Rodriguez CA2/6

Filed 9/18/20 P. v. Rodriguez CA2/6 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION FOLLOWING REHEARING 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. Over prosecutors’ objections, the trial court indicated that it would sentence Rodriguez to 28 months in state prison if he pled guilty to the charge and admitted the allegations. The court also stated that Rodriguez 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. Rodriguez accepted the court’s offer. At sentencing, the trial court struck the prior strike and one of the prison priors and imposed the agreed-upon sentence: 16 months on the indecent exposure conviction, plus one year on the remaining prison prior. It also ordered Rodriguez to pay a sex offender fine of “$1,200 including penalty