Filed 7/22/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re PEDRO LUIS RODRIGUEZ on 

Habeas Corpus.

 D078421

 (San Diego Super. Ct.

 Nos. SCN333447, SCN340334,

 HCN1657)

ORIGINAL PROCEEDING in habeas corpus. Blaine K. Bowman, 

Judge. Petition denied.

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.

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

1 Subsequent statutory references are to the Penal Code.
2

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 (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 (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, quoting Estrada, supra, 63 Cal.2d at p. 745.)
3

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 
4

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 (Buycks).) This court 

affirmed the judgment, and the Supreme Court denied review. (People v. 

Rodriguez (July 19, 2018, D071405) 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) [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) [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, 

2 The trial court also imposed a term of 15 years six months for the 

misdemeanor convictions, to be served in local custody. Rodriguez does not 

raise any issues regarding that term.
5

772 (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.) 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.) 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; accord, Gastelum, supra, 45 Cal.App.5th at 

p. 772.)

3 Our order to show cause was limited to the retroactivity, under 

Estrada, of the amendment to section 667.5. “An [order to show cause]

directing response on a particular issue indicates that the petitioner has 

failed to make a prima facie case as to the other issues presented.” (In re 

Sims (2018) 27 Cal.App.5th 195, 203.)
6

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.) “The significance of 

finality was that legislation ‘constitutionally could apply’ to nonfinal 

judgments.” (Id. at p. 677.) 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.)

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; People v. Millan (2018) 

20 Cal.App.5th 450, 456; see People v. Nasalga (1996) 12 Cal.4th 784, 789, 

fn. 5.) Rodriguez does not argue otherwise. 

Rodriguez contends, instead, that we must look to the finality of the 

judgment following the second proceeding, in which the trial court announced 

a single, aggregate term of imprisonment encompassing both proceedings. 
7

We disagree. The court’s use of the judgment following the first proceeding 

as a component of the aggregate term of imprisonment does not affect its 

finality for purposes of the Estrada rule.

“Under the Determinate Sentencing Act (§ 1170 et seq.), multiple 

consecutive determinate terms must be combined into a single, ‘aggregate 

term of imprisonment for all [such] convictions’ (§ 1170.1, subd. (a)) that 

merges all terms to be served consecutively and complies with the rules for 

calculating aggregate terms (e.g., one-third the base term for subordinate 

terms and specific enhancements applicable to subordinate terms (ibid.)), 

whether or not the consecutive terms arose from the same or different 

proceedings (ibid.; see also § 669; Cal. Rules of Court, rule 4.452).” (In re 

Reeves (2005) 35 Cal.4th 765, 772-773.) 

Crucially, the court announcing the aggregate term of imprisonment 

does not resentence the defendant in the generally understood manner, with 

authority to modify every aspect of the sentence. (Cf. Buycks, supra, 

5 Cal.5th at p. 893.) The court must instead preserve the sentencing choices 

reflected in the prior judgment. “Discretionary decisions of courts in previous 

cases may not be changed by the court in the current case. Such decisions 

include the decision to impose one of the three authorized terms of 

imprisonment referred to in section 1170[, subdivision ](b), making counts in 

prior cases concurrent with or consecutive to each other, or the decision that 

circumstances in mitigation or in the furtherance of justice justified striking 

the punishment for an enhancement.” (Cal. Rules of Court, rule 4.452(a)(3), 

italics added.) This limitation reflects, in part, the common law rule that a 

court loses jurisdiction to resentence a defendant once execution of the 

sentence has begun. (See, e.g., Holder v. Superior Court (1970) 1 Cal.3d 779, 

783.)
8

The statute admits one necessary exception. In order to combine 

multiple consecutive determinate terms into one aggregate term, the court 

must designate the longest single term as the principal term, which may 

displace a previously-designated principal term. “While imposing the 

current, consecutive sentence, the second court is empowered to modify a 

sentence previously imposed by a different court and make it subordinate to 

the later-imposed term. [Citation.] Thus, section 1170.1 provides an 

exception to the general rule that a sentence lawfully imposed cannot be 

modified once a defendant is committed and execution of his or her sentence 

has begun. [Citation.] Without the exception, ‘ “sentencing courts would be 

unable to impose full terms under sections 669 and 1170 for serious crimes 

when those crimes are committed by defendants who have been previously 

convicted and sentenced for less serious offenses.” ’ ” (People v. Baker (2002) 

144 Cal.App.4th 1320, 1329; accord, People v. Bozeman (1984) 152 Cal.App.3d 

504, 507 [“The exception provided by section 1170.1, subdivision (a) is 

necessary and makes good sense.”].) The statutory scheme therefore 

maintains the finality of a prior judgment, except to the extent necessary to 

properly calculate the defendant’s aggregate sentence under the Determinate 

Sentencing Act.

Given these limitations, the announcement of an aggregate sentence 

does not reopen a prior judgment or render it nonfinal for purposes of the 

Estrada rule. The announcement of an aggregate sentence is not a mere 

continuation of a prior criminal proceeding. It is, instead, the result of a new 
9

proceeding, occasioned by the commission of an additional offense, which

builds on the now-final determinations of a previous court.4

This matter is therefore unlike recent opinions where a defendant’s 

continuing involvement in the criminal justice system in the same case

justified application of the Estrada rule. (See Esquivel, supra, 11 Cal.5th at 

p. 673 [holding that “a case in which a defendant is placed on probation with 

execution of an imposed state prison sentence suspended is not yet final for 

this purpose if the defendant may still timely obtain direct review of an order 

revoking probation and causing the state prison sentence to take effect”]; 

People v. McKenzie (2020) 9 Cal.5th 40, 43 [holding that “a convicted 

defendant who is placed on probation after imposition of sentence is 

suspended, and who does not timely appeal from the order granting 

probation, may take advantage of ameliorative statutory amendments that 

take effect during a later appeal from a judgment revoking probation and 

imposing sentence”].) The proceedings in Esquivel and McKenzie never 

achieved finality for purposes of Estrada. Here, by contrast, the judgment

4 Rodriguez notes that the prior prison term enhancement is a status 

enhancement, which can only be imposed once in an aggregate sentence. 

(See, e.g., People v. Edwards (2011) 195 Cal.App.4th 1051, 1060.) This 

circumstance is irrelevant to our analysis. The court in the first proceeding 

imposed the prior prison term enhancement as part of its own aggregate 

sentence. The prior prison term enhancement cannot be separated from the 

remainder of the first judgment. (People v. Hill (1986) 185 Cal.App.3d 831, 

834 [“[A]n aggregate prison term is not a series of separate independent 

terms, but one term made up of interdependent components.”]; see People v. 

Cortez (2016) 3 Cal.App.5th 308, 316 [“[T]he aggregate length of a term 

matters.”].) The court in the second proceeding was required to preserve the 

first court’s discretionary sentencing choices to the extent possible. (Cal. 

Rules of Court, rule 4.452(a)(3).) The fact that the prior prison term 

enhancement could not have been imposed again as a result of the second 

proceeding is of no consequence.
10

which imposed the prior prison term enhancement was final. That case was 

complete, Rodriguez had begun serving his sentence, and he had exhausted 

his avenues of direct review. (See People v. Martinez (2020) 54 Cal.App.5th 

885, 891, rev. granted Nov. 10, 2020, S264848 [“A sentence becomes final 

‘when all available means to avoid its effect have been exhausted.’ [Citation.] 

It has not become final ‘if there still remains some legal means of setting it 

aside’ on direct appeal.”]; cf. Esquivel, at p. 678 [applying Estrada where the 

defendant “had not exhausted direct review of the order causing his carceral 

punishment to take effect”].) But for the second proceeding, the criminal 

prosecution against Rodriguez had ended.

Indeed, it is the necessity of the second proceeding that confirms 

Estrada should not apply here. As noted, Estrada recognized an implied 

legislative intent that ameliorative statutes should have the greatest possible 

reach, consistent with the Constitution. (Esquivel, supra, 11 Cal.5th at 

p. 674.) This implied intent is not an abstract notion. It has a specific 

foundation: An ameliorative statute reflects the Legislature’s determination 

that the lesser punishment is proper and the greater punishment serves no 

penological purpose. (Ibid.) To impose it unnecessarily would reflect only a 

“ ‘desire for vengeance’ ” on the part of the Legislature. (Id. at p. 674.) 

“[P]unishment is appropriate to deter, confine, and rehabilitate; ‘ “[t]here is 

no place in the scheme for punishment for its own sake . . . .” ’ ” (Ibid.)

The trial court’s preservation of the judgment following the first 

proceeding, including its one-year prior prison term enhancement, was not 

punishment for its own sake. It maintained the deterrent value of judgments 

imposed by California courts, both past and future. If the announcement of 

an aggregate term of imprisonment under section 1170.1 required the 

application of ameliorative statutes to otherwise-final judgments, a defendant 
11

would be incentivized to commit a new crime and obtain a potentially lower 

aggregate sentence. For example, if a defendant previously suffered two 

prior prison term enhancements, he would in some circumstances benefit 

from committing a new crime for which the effective sentence was less than 

two years, since eliminating the enhancements would cancel out any 

additional punishment for the crime.5

The existing exception in section 1170.1, which allows for the 

determination of a new principal term, appears to guarantee that a defendant 

will suffer a longer aggregate sentence following the commission of an

additional crime. A prior principal term can only be supplanted by a longer 

principal term. But no such guarantee exists if ameliorative statutes are 

applied more broadly.

In this context, the contrast with Esquivel is apparent. Esquivel

considered a situation where the trial court imposed a sentence on a 

defendant, including two prior prison term enhancements, but suspended 

execution of the sentence and placed the defendant on probation. (Esquivel, 

supra, 11 Cal.5th at p. 673.) Three years later, the trial court found that the 

5 Of course, upon eliminating the enhancements, a trial court would be 

required to resentence the defendant on all counts and allegations. (See 

Buycks, supra, 5 Cal.5th at p. 893.) If the court had not previously imposed 

the highest possible punishment, the court may be able to reimpose the same 

sentence in a different manner, and the defendant may yet suffer a longer 

aggregate sentence following the second proceeding. (See, e.g., People v. 

Calderon (1993) 20 Cal.App.4th 82, 88 [“It is perfectly proper for this court to 

remand for a complete resentencing after finding an error with respect to 

part of a sentence and just as proper for the trial judge to reimpose the same 

sentence in a different manner.”].) But, if the court had already imposed the 

highest possible sentence, the court would be unable to make up the 

difference, and the defendant would enjoy a shorter sentence than if he had 

not committed the new crime.
12

defendant had violated a condition of his probation and ordered the 

previously-imposed sentence into effect. (Ibid.) The defendant appealed, and 

during his appeal the amendment to section 667.5 took effect. (Ibid.) Our 

Supreme Court held that the amendment should apply retroactively to him 

under Estrada. (Ibid.) However, notwithstanding this retroactive 

application, the defendant was still worse off having committed a probation 

violation. Perhaps he would not serve as long a sentence as the trial court 

initially imposed (based on the elimination of the prior prison term 

enhancements), but he was still newly committed to state prison. He did not 

benefit from the probation violation, and therefore Esquivel would not 

incentivize a defendant to commit a probation violation. In the present 

context, by contrast, a defendant would benefit from committing a new crime 

if the ameliorative effect of the intervening statute outweighed the additional 

punishment that could be imposed. He would be incentivized to commit a 

new crime and, in some cases, possibly rewarded for doing so.

In sum, Rodriguez has not shown that the ameliorative amendment to 

section 667.5 should be applied retroactively to him under Estrada. The 

judgment imposing the prior prison term enhancement was final before the 

amendment became effective. Its inclusion in an aggregate term of 

imprisonment following a later criminal proceeding does not affect its 

finality. The prior judgment must be preserved, to the extent possible, and 

the Legislature’s presumed intent that ameliorative statutes should reach as 

broadly as possible does not cover the circumstances here.
13

DISPOSITION

The petition is denied.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.