People v. Rodriguez CA5

California Court of Appeal Jun 22, 2022 No. F082470Unpublished

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Holding. The court held that the defendant is entitled to be resentenced under the amended version of Penal Code section 1170, subdivision (b), which provides a presumption for the lower term for defendants under 26 years of age.

Issues

Whether the defendant is entitled to retroactive application of Penal Code section 1170, subdivision (b)(6) regarding sentencing for defendants under 26 years of age.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The People correctly concede the amended version of section 1170, subdivision (b) that became effective on January 1, 2022, applies retroactively in this case as an ameliorative change in the law applicable to all nonfinal convictions on appeal.”

“we agree with the parties that under section 1170, subdivision (b), Rodriguez’s sentence must be vacated and remand to the trial court to decide under the newly amended law whether Rodriguez is entitled to the lower term.”

Filed 6/22/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082470 Plaintiff and Respondent, (Super. Ct. No. M20920515) v.

FLAVIO RODRIGUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

STATEMENT OF THE CASE1 Flavio Rodriguez pleaded guilty on November 10, 2020, in case No. M20920515 to driving with a 0.08% or higher blood-alcohol content with a prior conviction (Veh. Code, § 23152, subd. (b)). The trial court indicated a three-year four-month maximum total aggregate sentence with two other pending cases (case Nos. F20906645 and F20907203)2. Rodriguez was sentenced on February 23, 2021, as follows: the middle term of two years in state prison for count 1 in Case No. M20920515; eight months consecutive for count 1 in Case No. F20906645; eight months consecutive for count 1 in Case No. F20907203; and the middle term of two years concurrent for count 2 in Case No. F20907203. Rodriguez was awarded 264 days credit for time served, including 130 actual days and 130 conduct credits. A restitution fine of $1,200 was imposed in each case and a parole revocation fine of the same amount was stayed. The trial court imposed a requirement that Rodriguez use an ignition device for a period of three years. On appeal, Rodriguez contends that he is entitled to be resentenced under Penal Code3 section 1170, subdivision (b)(6), which became effective January 1, 2022. The People concede the issue, and we remand for resentencing. DISCUSSION Effective January 1, 2022, our determinate sentencing law, section 1170, was amended in several fundamental ways. (See Sen. Bill No. 567 (2020–2021 Reg. Sess.); Stats. 2021, ch. 731, § 1.3; Assem. Bill No. 124 (2020–2021 Reg. Sess.); Stats. 2021, ch. 695, § 5.) Relevant here, Senate Bill No. 567 amended section 1170, former subdivision

People v. Rodriguez CA5

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