People v. Rodriguez CA6

Filed 7/8/22 P. v. Rodriguez CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H049251 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. B1369383)

v.

ANDRES CIGARRERO RODRIGUEZ,

Defendant and Appellant.

In April 2015, defendant Andres Cigarrero Rodriguez pleaded no contest to second degree robbery, dissuading a witness by use of force or threat of force, reckless driving while evading a pursuing peace officer, and participating in a criminal street gang. The trial court committed Rodriguez to state prison for an aggregate term of 17 years eight months. In 2021, the trial court received a letter from the Office of the Secretary of the California Department of Corrections and Rehabilitation (the Secretary), recommending that Rodriguez’s sentence be recalled and that he be resentenced under former Penal Code section 1170,1 subdivision (d). The trial court declined to recall Rodriguez’s sentence. Rodriguez now appeals, arguing that the trial court erred by declining to recall his sentence. Rodriguez contends that under recently enacted Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 719, §§ 1-7) (Assembly Bill 1540), the case should be remanded for the trial court to consider the request for recall under the

1 Unspecified statutory references are to the Penal Code.

parameters set by the new law. Rodriguez also contends that under recently enacted Assembly Bill No. 1869 (2019-2020 Reg. Sess.) (Stats. 2020, ch. 92) (Assembly Bill 1869), the criminal justice administration fee is no longer collectable and any portion of that fee that remains unpaid should be vacated. With respect to both issues, the Attorney General concedes that reversal is required. We agree with the parties. We vacate the order declining to recall the sentence and remand for a new hearing consistent with Assembly Bill 1540. In addition, we direct the trial court to vacate the unpaid portion of the criminal justice administration fee in the judgment. I. Background According to the probation report, the victim was working at a convenience store when Rodriguez and another man came in, pointed a gun at the victim, and demanded all of the money. The victim complied. Rodriguez and the other man attempted to bind the victim’s hands and told him not to move or call the police, or they would come back and kill him and his family. Rodriguez and the other man fled by car, and were later seen running a stop sign. An officer attempted to stop the car, but the two refused to stop. A vehicle pursuit ensued. Officers observed objects, including a firearm, cash, and ammunition, being thrown out of the car. The pursuit took approximately 56 miles and reached speeds in excess of 100 miles per hour until the suspect vehicle crashed. Rodriguez initially declined to speak about the offense, but later admitted that he was a Sureño gang member and that he and the other man planned the robbery. Pursuant to a negotiated plea agreement, Rodriguez pleaded no contest to second degree robbery (count 1—§ 211), dissuading a witness by use of force or threat of force (count 2—§ 136.1, subd. (c)(1)), reckless driving while evading a pursuing peace officer (count 4—Veh. Code, § 2800.2, subd. (a)), and participating in a criminal street gang (count 5—§ 186.22, subd. (a)). Rodriguez admitted gang allegations (§§ 186.22, subd. (b)(1)(C), (1)(A), (4)) as to counts 1, 2, and 4. As to the robbery count, he admitted