California Court of Appeal Dec 8, 2021 No. E075662Unpublished
Filed 12/8/21 P. v. Rodriguez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075662
v. (Super.Ct.No. RIF102083)
WILLIAM RODRIGUEZ, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Matthew Rodriquez, Acting Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and
Respondent.
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I
INTRODUCTION
Defendant and appellant William Rodriguez, Jr., appeals the summary denial of
his petition seeking recall of his sentence under Penal Code1 section 1170.91, which
In addition, defendant’s reliance on Hurlic is misplaced. Hurlic involved
resentencing pursuant to Senate Bill No. 620 (2017-2018 Reg. Sess.), which “amended
section 12022.53 to grant trial courts, for the first time, the discretion to strike
section 12022.53’s firearm enhancements. (§ 12022.53, subd. (h), as amended by
Stats. 2017, ch. 682, § 2.)” (Hurlic, supra, 25 Cal.App.5th at pp. 53-54.) In Hurlic, the
Court of Appeal determined whether a certificate of probable cause was required to
challenge the changes in the law “based on our Legislature’s enactment of a statute that
retroactively grants a trial court the discretion to waive a sentencing enhancement that
was mandatory at the time it was incorporated into the agreed-upon sentence.” (Id. at
p. 53.) Hurlic concluded “the answer is ‘no,’ and h[e]ld that a certificate of probable
cause is not required in these narrow circumstances.” (Ibid.) The court explained,
“Because we are unable to say that there is ‘no reasonable possibility’ that the trial court
would decline to exercise its newfound sentencing discretion, we vacate the judgment
and remand for a new sentencing hearing to decide whether to exercise that discretion.”
(Ibid.)
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Hurlic is inapposite here. There is no reasonable probability that the trial court
would impose a lesser sentence. Unlike in Hurlic, “the trial court would have no
discretion to depart from the stipulated sentence for a specific prison term by considering
any factors in mitigation, as the trial court is not ‘imposing a term under subdivision (b)
of Section 1170.’ (§ 1170.91, subd. (a).)” (King, supra, 52 Cal.App.5th at p. 793.)
“When the Legislature makes an ameliorative change in the law that specifically
contemplates the change will apply to all convictions, final or nonfinal, whether suffered
by trial or plea, resentencing eligibility will follow, even for defendants whose
convictions have been final for many years.” (Brooks, supra, 58 Cal.App.5th at p. 1107.)
However, unlike a new legislation providing new discretion to dismiss an enhancement
under section 1385, “section 1170.91 does not eliminate the legal basis for [defendant’s]
conviction or grant the trial court unfettered discretion to reconsider an aspect of his
sentence that would in turn affect his plea bargain. All it does is allow a court to take
certain mitigating factors into account, and only insofar as the court is otherwise
permitted to exercise discretion in the selection of a low, middle, or high term from
within the applicable sentencing triad.” (Brooks, at p. 1107.)
We also reject defendant’s claim that King misconstrued our Supreme Court’s
analysis in Stamps and section 1192.5. Defendant believes that Stamps held that a trial
court may withdraw its prior approval of a stipulated sentence on remand, in light of
ameliorative changes in the law, and claims King “attempts to circumvent the whole
process set forth in section 1170.91. . . .” We find King correctly relied on section 1192.5
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and Stamps for the proposition that a trial court is bound by the terms of a negotiated plea
that it has accepted. (King, supra, 52 Cal.App.5th at pp. 791, 793, citing Stamps, supra, 9
Cal.5th at p. 701.)
Defendant asserts remand is necessary for the trial court to exercise its discretion
because “[t]he goal is the fairest sentence possible.” However, we believe defendant
received more than a fair sentence, considering the charges and enhancement allegations
and the fact he had admitted the allegations prior to trial.
In sum, defendant has given us no valid reason to depart from the reasoning of
King, supra, 52 Cal.App.5th 783. We therefore conclude the trial court properly denied
defendant’s section 1170.91 petition.
IV
DISPOSITION
The postjudgment order denying defendant’s section 1170.91 petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. I concur:
MILLER Acting P. J.
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[People v. Rodriquez, Jr., E075662]
MENETREZ, J., Dissenting.
When an ameliorative change in the law applies retroactively to a criminal
judgment that is based on a negotiated plea agreement, the defendant must be given the
opportunity to seek the benefit of that change, thereby allowing the trial court to
withdraw its approval of the plea agreement if it is so inclined. (People v. Stamps (2020)
9 Cal.5th 685, 707-708 (Stamps).) The majority opinion denies defendant William
Rodriguez that opportunity and therefore conflicts with Stamps. In so doing, the majority
opinion follows People v. King (2020) 52 Cal.App.5th 783 (King), which similarly
conflicts with Stamps. Because we are bound by Stamps but not by King, I respectfully
dissent.
In 2003, Rodriguez was charged with 38 counts of sex crimes against minors.
Pursuant to a negotiated plea agreement, he pled guilty to seven counts and admitted
certain enhancement allegations in exchange for a 45-year sentence and dismissal of the
remaining charges.
In 2019, Rodriguez petitioned for recall of his sentence pursuant to Penal Code
section 1170.91 (undesignated statutory references are to this code), which authorizes
resentencing of United States military veterans on the basis of service-related trauma or
other conditions. The statute expressly applies to defendants convicted by plea.
(§ 1170.91, subd. (b)(1) [a defendant convicted “by trial or plea” may petition for
resentencing].)
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The trial court denied Rodriguez’s petition on the basis of King, which held that a
defendant who agreed to a stipulated sentence is categorically ineligible for relief under
section 1170.91 because the trial court “would have no discretion on resentencing to
depart from the stipulated sentence.” (King, supra, 52 Cal.App.5th at p. 787.) The
majority opinion agrees with King and affirms.
Rodriguez argues that King conflicts with Stamps, so we should decline to follow
it. I agree.
In Stamps, the defendant “entered into a plea agreement for a specified term that
included a prior serious felony enhancement [citation]. While his appeal was pending, a
new law went into effect permitting the trial court to strike a serious felony enhancement
in furtherance of justice [citation], which it was not previously authorized to do.”
(Stamps, supra, 9 Cal.5th at p. 692.) The new law applied retroactively to the
defendant’s nonfinal judgment (id. at p. 699), and the defendant argued that “the proper
remedy is to remand to the trial court to consider striking the serious felony enhancement
while otherwise maintaining the plea agreement intact” (id. at p. 700). The Supreme
Court disagreed, because the new law did not “authorize a trial court to exercise its
discretion to strike in contravention of a plea bargain for a specified term.” (Ibid.)
The Court went on to hold, however, that the defendant “is nevertheless entitled to
some relief.” (Stamps, supra, 9 Cal.5th at p. 705.) In particular, the defendant “should
be given the opportunity to seek the [trial] court’s exercise of its . . . discretion” under the
new law. (Id. at p. 707.) “If the court on remand declines to exercise its discretion,” then
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“that ends the matter and defendant’s sentence stands.” (Ibid.) But if “the court indicates
an inclination to exercise its discretion,” then (1) the prosecution may “agree to modify
the bargain to reflect the downward departure in the sentence such exercise would entail”
or may withdraw from the agreement altogether, or (2) “the court may withdraw its prior
approval of the plea agreement.” (Id. at pp. 707-708.)
Stamps applies straightforwardly here. Section 1170.91 is an ameliorative change
in the law that requires a sentencing court to consider certain military-related conditions
as factors in mitigation. (§ 1170.91, subd. (a).) It creates a petitioning procedure for
retroactive application of that change to a defendant “currently serving a sentence for a
felony conviction, whether by trial or plea.” (§ 1170.91, subd. (b)(1).) Because
Rodriguez received a stipulated sentence pursuant to a negotiated plea agreement, a trial
court ruling on his petition cannot exercise its discretion to reduce his sentence while
otherwise maintaining the plea agreement intact. (Stamps, supra, 9 Cal.5th at p. 700.)
But Rodriguez must be given the opportunity to seek the court’s exercise of its discretion
nonetheless. (Id. at p. 707.) If the court is not inclined to exercise its discretion, then it
should deny the petition, and Rodriguez’s original sentence will remain. (Ibid.) But if
the court indicates it is inclined to exercise its discretion, then the prosecution may
withdraw from the agreement or agree to modify it, or the court may withdraw its
approval of the agreement. (Id. at pp. 707-708.)
King mentions the Supreme Court’s rejection of the defendant’s proposed remedy
in Stamps. (King, supra, 52 Cal.App.5th at pp. 791, 793; see also maj. opn., ante, at
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pp. 11-12.) But King never mentions the alternative remedy that the Supreme Court
ordered in Stamps. As a result, King contains no analysis contrary to mine.
King does, however, contain a technical argument for the conclusion that
section 1170.91 does not apply to stipulated sentences. (King, supra, 52 Cal.App.5th at
p. 791.) The majority opinion endorses that argument (maj. opn., ante, at pp. 6-7), but I
believe it is mistaken.
King first notes that the petitioning procedure of subdivision (b) of
section 1170.91 authorizes “resentencing pursuant to subdivision (a),” which in turn
requires a court to treat certain military-related conditions “as a factor in mitigation when
imposing a term under subdivision (b) of Section 1170.” (§ 1170.91, subds. (b)(1), (a);
see King, supra, 52 Cal.App.5th at p. 791.) King then reasons as follows: “A trial court
that sentences under subdivision (b) of section 1170, exercises its discretion to choose an
upper, middle or lower determinate term based on its consideration of factors in
mitigation and aggravation. However, when a trial court sentences a defendant who has
agreed to a stipulated sentence for a term of years, the trial court exercises no discretion
to decide between an upper, middle and lower term and may not consider factors in
mitigation and aggravation. Therefore, the trial court is not ‘imposing a term under
subdivision (b) of Section 1170.’ (§ 1170.91, subd. (a).) As a result, a petitioner . . . who
agreed to a stipulated sentence for a specific prison term cannot obtain the relief afforded
under section 1170.91, subdivision (b)(1), as that petitioner cannot be resentenced under
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subdivision (b) of Section 1170 to an upper, middle or lower term based on factors in
mitigation and aggravation.” (King, at p. 791.)
I believe that analysis is mistaken. Subdivision (b) of section 1170 is the general
sentencing provision of the determinate sentencing law. A court imposing a determinate
sentence when the applicable statute specifies three possible terms is imposing a sentence
pursuant to subdivision (b) of section 1170. (See generally People v. Sasser (2015) 61
Cal.4th 1, 8 [describing the determinate sentencing law].) The statutes under which
Rodriguez was convicted specify three possible terms. (§§ 288, 647.6.)
Moreover, even if King’s analysis were sound, it would not show that Rodriguez is
not entitled to the same relief ordered by the Supreme Court in Stamps. The point of the
remand in Stamps is, in part, that the trial court must be given the opportunity to
withdraw its approval of the plea agreement. (Stamps, supra, 9 Cal.5th at p. 708.) Were
the court to do so, it would no longer be required to impose the stipulated sentence, so
King’s technical argument would no longer apply.
For all of the foregoing reasons, I respectfully dissent. King conflicts with Stamps,
and only Stamps is binding on us. (Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455.) We should reverse and remand to allow Rodriguez to seek relief under
section 1170.91. MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that Penal Code section 1170.91 does not apply to defendants who entered into a plea agreement with a stipulated prison term, as the trial court lacks the discretion to consider mitigating factors or impose a different sentence without violating the plea agreement.
Issues
Whether Penal Code section 1170.91 applies to defendants who received a stipulated sentence pursuant to a negotiated plea agreement.
Whether a trial court must grant a hearing on the merits for a section 1170.91 petition when the underlying sentence was a stipulated term.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We find section 1170.91 does not apply to plea agreements with a stipulated prison term, and therefore affirm the court’s order.”
“A petitioner, like King, who agreed to a stipulated sentence for a specific prison term cannot obtain the relief afforded under section 1170.91, subdivision (b)(1)”
“Nothing in the statute suggests an intent to overturn, sub silentio, long-standing plea-bargaining law binding courts to the agreements they approve.”