People v. Rodriguez CA5

Filed 6/22/21 P. v. Rodriguez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081242, F081243 Plaintiff and Respondent, (Super. Ct. Nos. BF165668A, v. BF169664A)

EDUARDO VALDIVIAS RODRIGUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Conness A. Thompson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P.J., Smith, J. and Snauffer, J.

Defendant Eduardo Valdivias Rodriguez entered into a plea agreement with a stipulated sentencing range. The trial court imposed a sentence that included one one-year prior prison term enhancement. Defendant contends on appeal that his one-year prior prison term enhancement should be stricken pursuant to Penal Code section 667.5, subdivision (b),1 as amended by Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill 136). The People agree. If the prior prison term enhancement is stricken, defendant’s sentence will remain within the range set by the plea agreement. Defendant and the People therefore further agree that remand for resentencing or to permit the prosecutor or the trial court to withdraw approval for the plea agreement is unnecessary. We agree with the parties that permitting the prosecutor and trial court an opportunity to withdraw from the plea agreement is not required but remand is appropriate for the trial court to resentence defendant to a sentence consistent with the plea agreement in light of the changed circumstances. We therefore vacate defendant’s sentence and remand with directions for the trial court to strike defendant’s prior prison term enhancement and resentence defendant. In all other respects, we affirm. PROCEDURAL SUMMARY The Charges Kern County Case No. BF165668A On November 7, 2016, the Kern County District Attorney filed an information in case No. BF165668A charging defendant with escape from electronic monitoring (§ 4532, subd. (b)(2); count 1) and failure to return to confinement (§ 4532, subd. (e); count 2). The information further alleged that defendant had suffered three prior serious felony “strike” convictions within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)) and had served four prior prison terms (§ 667.5, subd. (b)).