People v. Rodriguez CA5

Filed 10/12/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085872 Plaintiff and Respondent, (Super. Ct. No. F17902593) v.

JOSE ENRIQUE RODRIGUEZ, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION A jury convicted defendant Jose Enrique Rodriguez of assault with a corporal injury to a spouse/cohabitant (Pen. Code, § 273.5, subd. (a); count 1), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and torture (§ 206; count 3). The jury also found true allegations defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) during the commission of counts 1 and 2, and defendant used a deadly weapon during the commission of count 1 (§ 12022, subd. (b)(1)). Defendant admitted he had two prior serious felony convictions within the meaning of section 667, subdivision (a)(1) that also qualified as strike offenses. The court denied defendant’s motion to strike his prior strikes and sentenced defendant to 25 years to life on count 1 plus 16 years, comprising five years for each of defendant’s prior serious felony convictions (§ 667, subd. (a)(1)), an upper term of five years for the use of a deadly weapon enhancement (§ 12022.7, subd. (e)), and one year for the great bodily injury enhancement (§ 12022, subd. (b)(1)). The court stayed punishment on counts 2 and 3 pursuant to section 654. This is the third appeal in this matter. We initially remanded for the trial court to exercise its discretion regarding whether to dismiss the two Penal Code section 667, subdivision (a) prior serious felony enhancements in light of Senate Bill No. 1393 (2017– 2018 Reg. Sess.). On remand, the court declined to strike either section 667, subdivision (a) enhancement. Then, after resentencing, we remanded the matter again for the trial court to consider its newfound discretion pursuant to Assembly Bill No. 518 (2021–2022 Reg. Sess.) and also directed the court that changes to section 1385 pursuant to Senate Bill No. 81 (2021–2022 Reg. Sess.) would apply at resentencing. On remand, the court again declined to strike either of defendant’s strike priors or prior serious felony enhancements, but it resentenced defendant to the low term on the Penal Code section 12022.7, subdivision (e) enhancements, reducing his determinate sentence to 14 years, and reduced the restitution fine from $10,000 to $300. In all other respects, it reimposed the same sentence previously imposed.