P. v. Rodriguez

Filed 10/16/18 P. v. Rodriguez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT ANDREW RODRIGUEZ,
Defendant and Appellant.
B285593
(Los Angeles County
Super. Ct. No. KA111372)
APPEAL from an order of the Superior Court of Los
Angeles County, Robert M. Martinez, Judge. Affirmed.
Carlos Ramirez, under appointment by the Court of Appeal,
for Defendant and Appellant Robert Andrew Rodriguez.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Colleen M. Tiedemann and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________

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BACKGROUND
Robert Andrew Rodriguez (Rodriguez) broke into a home
when all four family members—Masae Hayashi (Hayashi), her
husband Michiaki Ishimura, their 22-year-old son, Nobuhide, and
17-year-old daughter, Yuri—were present. Rodriguez threatened
Hayashi, telling her that if she did not disrobe, he would kill her,
her husband and their two children. A jury convicted Rodriguez
of first degree residential burglary (Pen. Code, § 459; count 3)1
and criminal threats (§ 422, subd. (a); count 4). The jury made no
finding as to the “person present” allegation attached to the
burglary charge. The trial court found that Rodriguez had two
prior “strike” convictions (§ 1170.12), alleged as to all counts, as
well as two five-year prior convictions (§ 667, subd. (a)(1)), and
four one-year prior prison terms (§ 667.5, subd. (b).)
The trial court sentenced Rodriguez to a total of 35 years to
life in prison as a “third striker”—25 years to life on count 3, plus
two consecutive five-year terms under section 667, subdivision
(a). As to count 4, the trial court imposed a concurrent term of 25
years to life. The trial court struck the prior prison
enhancements. The trial court initially awarded Rodriguez a
total of 892 days of presentence custody credit, comprised of 446
days of actual credit and 446 days of conduct credit. However,
after receiving two inquiries from the California Department of
Corrections and Rehabilitation (CDCR), the trial court
subsequently reduced Rodriguez’s conduct credit, awarding
1 All further statutory references are to the Penal Code,
unless otherwise specified.

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Rodriguez 66 days of credit rather than 446 days. Rodriguez now
appeals this credit reduction.2 We affirm.
DISCUSSION
The trial court imposed sentence on March 6, 2017. On
August 7, 2017, the CDCR sent a letter to the trial court
regarding Rodriguez’s sentence. The CDCR first advised the trial
court that Rodriguez’s abstract of judgment did not state whether
the “person present” allegation had been found true.3 The CDCR
requested disposition of this particular allegation so that it could
determine whether Rodriguez had been convicted of a violent
felony and was thus subject to the credit restriction in section
2933.1.4 The CDCR also noted that the trial court’s abstract of
judgment and sentencing minute order reflected two
enhancements under section 667, subdivision (a)(1) “of 5 years
2 Rodriguez first appealed his underlying conviction, which
we upheld in an unpublished opinion on May 24, 2018. (See
People v. Rodriguez (May 24, 2018, B281282) [nonpub. opn.].
3 Section 667.5 lists crimes deemed to be violent felonies.
One such felony is first degree burglary “wherein it is charged
and proved that another person, other than an accomplice, was
present in the residence during the commission of the burglary.”
(§ 667.5, subd. (c)(21).)
4 A defendant convicted of a violent felony, as defined by
section 667.5, may not accrue presentence conduct credits greater
than 15 percent of his or her actual period of confinement.
(§ 2933.1, subd. (c).) The accrual rate for felonies not listed in
section 667.5 is governed by section 4019, which authorizes two
days of good time/work time credit for each completed four-day
block of actual custody time. (§ 4019, subd. (f).)

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imposed and concurrent.” (Boldface and underlining omitted.)
The CDCR asked for clarification regarding these two
enhancements given that, under section 667, subdivision (a)(1),
the terms of the present offense and each enhancement must run
consecutively, rather than concurrently.5
In response to the CDCR’s letter, the trial court held
hearings on August 22, 2017, and September 27, 2017, but did
not recall its original sentence. Instead, the trial court answered
the CDCR’s questions regarding Rodriguez’s conduct credit and
two five-year enhancements. Initially, the trial court asked the
parties to research whether a “person present” finding was
required if “the evidence is so apparent.” At the next hearing, the
trial court noted that the “person present” allegation had not
been submitted to the jury in the form of a jury instruction and
no jury finding of this allegation was made on the verdict form.
However, based on People v. Garcia (2004) 121 Cal.App.4th 271
(Garcia), the trial court determined that a jury finding on the
“person present” allegation was not required under Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi).6 The trial court
5 Under section 667, subdivision (a)(1), “any person
convicted of a serious felony who previously has been convicted of
a serious felony in this state or of any offense committed in
another jurisdiction which includes all of the elements of any
serious felony, shall receive, in addition to the sentence imposed
by the court for the present offense, a five-year enhancement for
each such prior conviction on charges brought and tried
separately. The terms of the present offense and each
enhancement shall run consecutively.”
6 In Apprendi, the U.S. Supreme Court held that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum

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further found that the evidence supported the “person present”
allegation, noting that one of the family members at the
burglarized home said she saw Rodriguez in the home.
Therefore, the trial court determined that Rodriguez’s burglary
conviction was a violent felony. As a result, the trial court
reduced the amount of custody credit awarded to Rodriguez from
892 days—446 days of actual credit and 446 days of conduct
credit—to 512 days, comprised of 446 days of actual credit but
only 66 days of conduct credit. As for the CDCR’s question
regarding the previously imposed five-year enhancements, the
trial court clarified that the two enhancements were to run
consecutively, as required by law.
On appeal, Rodriguez contends that the trial court was
time barred under section 1170, subdivision (d)(1), from recalling
his prison sentence and resentencing him.7 However, contrary to
must be submitted to a jury, and proved beyond a reasonable
doubt.” (Apprendi, supra, 530 U.S. at p. 490.) In Garcia,
Division Seven of this court was tasked with determining
whether the jury or the trial court must find that a non-
accomplice was present during the commission of the offense.
Garcia held that such a finding is properly part of a trial court’s
traditional sentencing function; that the trial court determines
whether a defendant’s current conviction for first degree burglary
is a violent felony for the purpose of calculating presentence
conduct credits. (Garcia, supra, 121 Cal.App.4th at p. 274.)
7 Under section 1170, subdivision (d)(1), when a defendant
has been sentenced to state prison or county jail and has been
committed to the custody of the secretary or the county
correctional administrator, the trial court may, “within 120 days
of the date of commitment on its own motion, or at any time upon
the recommendation of the secretary or the Board of Parole
Hearings in the case of state prison inmates . . . recall the

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Rodriguez’s claim on appeal, the trial court did not recall
Rodriguez’s sentence on its own motion.8 Nor did the trial court
resentence Rodriguez. Instead, the trial court simply answered
the two questions posed by the CDCR. In so doing, the court
merely corrected the accrual rate for Rodriguez’s conduct credit
after properly finding that Rodriguez’s burglary conviction was a
violent felony within the meaning of section 667.5, subdivision
(c), and clarified that the previously imposed five-year
enhancements were to run consecutively, as mandated by section
sentence and commitment previously ordered and resentence the
defendant in the same manner as if he or she had not previously
been sentenced, provided the new sentence, if any, is no greater
than the initial sentence.” Had Rodriguez sought to correct his
sentence, rather than the CDCR or the trial court, then no such
time limit would have applied. (See People v. Fares (1993) 16
Cal.App.4th 954, 958 [“There is no time limitation upon the right
to make the motion to correct the sentence” because a trial court’s
power to correct its judgment “includes corrections required not
only by errors of fact (as in the mathematical calculation) but also
by errors of law”].)
8 Rodriguez admits that neither the secretary nor the
Board of Parole recommended that the trial court recall his
sentence. Rodriguez further acknowledges that the CDCR’s
letter did not cite section 1170, subdivision (d)(1), and instead
sought clarification from the trial court regarding his sentence.
From these facts, Rodriguez comes to the “inescapable
conclusion” that the trial court recalled his sentence on its own
motion. However, Rodriguez cites no case law or record reference
in support of this proposition.

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667, subdivision (a)(1).9 Accordingly, the120-day time limit set
forth in section 1170, subdivision (d)(1), did not apply.
Contrary to Rodriguez’s argument on appeal, Garcia,
supra, 121 Cal.App.4th 271, is applicable here. As noted above,
Garcia held that section 2933.1’s limitations on earning conduct
credits is not a sentencing enhancement and does not increase
the maximum six-year penalty prescribed for first degree
burglary. “Rather, the provisions for presentence conduct credits
function as a sentence ‘reduction’ mechanism outside the ambit of
Apprendi. [Citations.] . . . Lessening the ‘discount’ for good
conduct credit does not increase the penalty beyond the
prescribed maximum punishment and therefore does not trigger
the right to a jury trial identified in Apprendi.” (Garcia, at
p. 277.)
Nevertheless, Rodriguez argues, the issue here is whether
the trial court had jurisdiction to recall the sentence to begin
with and make the “person present” finding. As discussed above,
the trial court did not recall Rodriguez’s sentence. Indeed, such a
procedural act is typically evidenced by the trial court’s
consideration of postconviction factors, such as the inmate’s
disciplinary record and record of rehabilitation while
incarcerated, whether the inmate’s age, time served, and
diminished physical condition have reduced the inmate’s risk for
future violence, and whether “circumstances have changed since
the inmate’s original sentencing so that the inmate’s continued
incarceration is no longer in the interest of justice.” (§ 1170,
subd. (d)(1).)
9 Indeed, Rodriguez concedes that the trial court clarified
its sentence with respect to the enhancements.

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Here, however, the trial court was not asked to consider
any of these factors or to resentence Rodriguez in reliance
thereon. Rather, the trial court was tasked with correcting and
clarifying its previously-imposed sentence. Although this was not
a ministerial task given that it required additional briefing by the
parties and a subsequent hearing, it cannot be described as a
proceeding pursuant to section 1170, subdivision (d)(1). While
the parties appeared in court in order to discuss the sentence,
this hearing was not tantamount to the trial court recalling the
sentence as that term of art is used in section 1170. Given that
the trial court merely answered the CDCR’s inquiries by properly
finding that Rodriguez’s burglary conviction was a violent felony,
correcting the conduct credit in accordance with that finding, and
explaining, without changing or re-imposing, its original
sentence, section 1170, subdivision (d), did not apply and the
court acted within its jurisdiction here.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED
JOHNSON, Acting P.
J.
We concur:
BENDIX, J.
CURREY, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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