People v. Rodriguez CA2/1

Filed 11/18/20 P. v. Rodriguez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B301144

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA111372) v.

ROBERT ANDREW RODRIGUEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez and David C. Brougham, Judges. Affirmed. Carlos Ramirez, 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, Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

This is the third appeal brought by defendant Robert Andrew Rodriguez following his convictions for first degree burglary and criminal threats. In this appeal, he relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) to raise a due process challenge to the trial court’s imposition of a restitution fine and certain assessments. We conclude Dueñas is distinguishable from and inapplicable to the instant case. Alternatively, even if this case were not distinguishable from Dueñas, this division has held that Dueñas was wrongly decided. Accordingly, we affirm.

FACTUAL BACKGROUND The following facts are taken from our opinion in defendant’s first appeal, People v. Rodriguez (May 24, 2018, B281282) [nonpub. opn.] (Rodriguez I). On the evening of December 14, 2015, defendant climbed through a downstairs window into the home of Masae Hayashi and her husband Michiaki Ishimura. Defendant went upstairs and entered a bedroom occupied by Hayashi and her 17-year-old daughter Yuri. After opening the closet door and looking around for a few seconds, defendant told Yuri to leave and ordered Hayashi to remove her clothes. Hayashi and Yuri refused to comply. Defendant then told Hayashi to accompany him downstairs, and said he would kill her if she did not take off her clothes. Hayashi, followed by defendant, went out to the hallway and yelled for her son and husband. Hayashi’s son came out of his bedroom and Ishimura came upstairs. When Ishimura asked who defendant was, defendant claimed to be an FBI agent, but refused to show any identification. Defendant asked for legal documents related to the house, and warned that he had five men