In re Pedro Luis Rodriguez On Habeas Corpus

66 Cal.App.5th 952

281 Cal.Rptr.3d 573

IN RE Pedro Luis RODRIGUEZ on Habeas Corpus.

D078421

Court of Appeal, Fourth District, Division 1, California.

Filed July 22, 2021

Pedro Luis Rodriguez, in pro. per., and Christine M. Aros, under appointment of the Court of Appeal, for Petitioner.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Respondent.

GUERRERO, J.

Petitioner Pedro Luis Rodriguez is currently serving a determinate term of 14 years eight months in prison. This term is the result of two separate proceedings in the trial court, both of which ended with jury trials and judgments of conviction. Following the second proceeding, the trial court announced a single, aggregate term of imprisonment for all of Rodriguez's felony convictions from both proceedings. (See Pen. Code, § 1170.1.)¹

In the first proceeding, the trial court imposed a one-year prior prison term enhancement under former section 667.5, subdivision (b). This one-year term was included in the aggregate term of imprisonment imposed following the second proceeding. While Rodriguez's appeal from the judgment in the second proceeding was pending, section 667.5 was amended to limit the prior prison term enhancement to sexually violent offenses.

Rodriguez contends the amendment applies retroactively to him under In re Estrada (1965) 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 ( Estrada ) because his aggregate sentence was not yet final when the amendment became effective. The Attorney General responds that the judgment in the first proceeding, where the enhancement was imposed, was final before the amendment became effective. Its finality was not affected by its inclusion in the aggregate term of imprisonment announced by the court following the second proceeding.

As our Supreme Court recently confirmed, " Estrada ... continues to stand for the proposition that (i) in the absence of a contrary indication of legislative intent, (ii) legislation that ameliorates punishment (iii) applies to all cases that are not yet final as of the legislation's effective date." ( People v. Esquivel (2021) 11 Cal.5th 671, 675, 279 Cal.Rptr.3d 659, 487 P.3d 974 ( Esquivel ).) The Estrada rule is primarily based on the Legislature's presumed intent when enacting ameliorative legislation. ( Ibid. ) " ‘It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.... This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology.’ " ( Id. at p. 674, 279 Cal.Rptr.3d 659, 487 P.3d 974, quoting Estrada, supra , 63 Cal.2d at p. 745, 48 Cal.Rptr. 172, 408 P.2d 948.)

We conclude that, under Estrada , the amendment to section 667.5 does not apply retroactively to eliminate the prior prison term enhancement imposed on Rodriguez in the first proceeding. The judgment in the first proceeding was final before the amendment took effect. While the trial court in the second proceeding used the first judgment to calculate the aggregate term of imprisonment covering both proceedings, the first judgment itself was unaffected. It remained final, and the amendment to section 667.5 does not apply retroactively to it.

Our conclusion is supported by the principles underlying the Estrada rule. It is clear that, in the absence of the second proceeding, Rodriguez would not be entitled to the benefit of the amendment to section 667.5. The second proceeding arose because Rodriguez committed additional crimes. To uphold the judgment in the first proceeding, notwithstanding the second proceeding, is not the "vengeance" identified in Estrada. It follows logically from the fundamental principle that a defendant should not be rewarded for committing additional crimes. Indeed, applying the Estrada rule to a prior judgment could conceivably result in an aggregate term that is the same—or shorter—than the prior judgment standing alone. A defendant would effectively escape punishment for the subsequent crime, or even see a sentence reduction as a result of its commission. Such a result cannot be encompassed in the Legislature's presumed intent in enacting an ameliorative statute under Estrada. We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In the first proceeding, Rodriguez was convicted of multiple felonies and sentenced to a total determinate term of 13 years four months in state prison. His sentence included a one-year enhancement under former section 667.5, subdivision (b), which at the time required imposition of the enhancement for each separate prior prison term (or county jail term under section 1170, subdivision (h) ) unless a " ‘washout’ " period applied. (See People v. Buycks (2018) 5 Cal.5th 857, 889, 236 Cal.Rptr.3d 84, 422 P.3d 531 ( Buycks ).) This court affirmed the judgment, and the Supreme Court denied review. ( People v. Rodriguez (2018) 236 Cal.Rptr.3d 304 review den. and opn. ordered nonpub. (Nov. 14, 2018, S251142).)

In the second proceeding, Rodriguez was convicted of several additional felonies and several dozen misdemeanors. The trial court imposed a determinate term of imprisonment to run consecutively with the remaining term of Rodriguez's prior sentence. On appeal, this court reversed in part and remanded for resentencing. ( People v. Rodriguez (Sept. 19, 2018, D071948) 2018 WL 4474597 [nonpub. opn.].)

At resentencing, the trial court again imposed a consecutive sentence. As required by statute, the court announced a single, aggregate term of imprisonment of 14 years eight months for the two proceedings. (See § 1170.1, subd. (a).) This term included the one-year prior prison term enhancement imposed in the first proceeding. This court affirmed the judgment. ( People v. Rodriguez (July 17, 2020, D075890) 2020 WL 4033314 [nonpub. opn.].) The Supreme Court denied review.

(People v. Rodriguez (Sept. 30, 2020, S264130).)²

While Rodriguez's most recent appeal was pending, section 667.5 was amended to limit the application of the prior prison term enhancement to certain sexually violent offenses. ( § 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1 ; see People v. Gastelum (2020) 45 Cal.App.5th 757, 772, 259 Cal.Rptr.3d 44 ( Gastelum ).) Rodriguez filed a petition for writ of mandate, later construed as a petition for writ of habeas corpus, contending he should benefit from the amended statute. The trial court denied his petition. It reasoned that the judgment in the first proceeding, where the enhancement was imposed, was final before the amendment took effect. Thus, the amendment did not apply retroactively to Rodriguez.

Rodriguez filed a petition for writ of habeas corpus here, and this court issued an order to show cause returnable in the trial court. (In re Rodriguez (Aug. 11, 2020, D077717).) The trial court again denied relief.

Rodriguez filed another petition for writ of habeas corpus in this court. We issued an order to show cause, and these proceedings followed.³

DISCUSSION

A statute is ordinarily presumed to operate prospectively. ( People v. Brown (2012) 54 Cal.4th 314, 323-324, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) But, under Estrada , certain ameliorative statutes are governed by the opposite presumption: "When new legislation reduces the punishment for an offense, we presume that the legislation applies to all cases not yet final as of the legislation's effective date." ( Esquivel, supra , 11 Cal.5th at p. 673, 279 Cal.Rptr.3d 659, 487 P.3d 974.) The amendment at issue here narrows the scope of the one-year prior prison term sentencing enhancement. ( § 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1.) It is generally entitled to retroactive effect under Estrada. ( People v. Jennings (2019) 42 Cal.App.5th 664, 680-682, 255 Cal.Rptr.3d 713 ; accord, Gastelum, supra , 45 Cal.App.5th at p. 772, 259 Cal.Rptr.3d 44.)

The dispute here revolves around finality since the Estrada rule applies only to nonfinal judgments. " Estrada used varied terminology to describe this issue, speaking of the finality of ‘the judgment of conviction’ [citation]; of ‘all cases not reduced to final judgment’ [citation]; and, when describing a related common law rule, of ‘all prosecutions not reduced to final judgment’ [citation]." ( Esquivel, supra , 11 Cal.5th at p. 676, 279 Cal.Rptr.3d 659, 487 P.3d 974.) "The significance of finality was that legislation ‘constitutionally could apply’ to nonfinal judgments." ( Id. at p. 677, 279 Cal.Rptr.3d 659, 487 P.3d 974.) While the underlying constitutional issue may not be so straightforward, our Supreme Court continues to "adhere to the Estrada doctrine's long-standing nonfinality requirement, on which our Legislature may have relied when declining to limit the retroactive application of its enactments. [Citation.] But the role of finality in Estrada 's reasoning counsels against importing a rigid understanding of the term ‘final’ into this context." ( Ibid. ) As with the Estrada rule as a whole, our consideration of this issue is guided by the Legislature's presumed intent. ( Id. at p. 680, 279 Cal.Rptr.3d 659, 487 P.3d 974.)

Here, setting aside the second proceeding, it is clear the judgment following the first proceeding was final before the amendment to section 667.5. Our Supreme Court has stated the general rule: "A judgment becomes final when the availability of an appeal and the time for filing a petition for certiorari with the United States Supreme Court have expired." ( Buycks, supra , 5 Cal.5th at p. 876, fn. 5, 236 Cal.Rptr.3d 84, 422 P.3d 531 ; People v. Millan (2018) 20 Cal.App.5th 450, 456, 228 Cal.Rptr.3d 647 ; see People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5, ...