Filed 9/14/20 P. v. Rodriguez CA2/7

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

GERARDO RODRIGUEZ,

Defendant and Appellant.

 B303459

 (Los Angeles County

 Super. Ct. No. BA445443)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Stephen A. Marcus, Judge. Affirmed as 

modified and with directions.

Lori A. Nakaoka, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising 
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Deputy Attorney General, and David A. Wildman, Deputy 

Attorney General, for Plaintiff and Respondent.

INTRODUCTION

A jury convicted Gerardo Rodriguez of two counts of 

carjacking (Pen. Code, § 215, subd. (a))1 and found true the 

allegation he committed the offenses for the benefit of a criminal 

street gang (§ 186.22, subd. (b)(1)). The trial court imposed a 

sentence of 31 years, which included 10 years for the gang 

enhancement, 10 years for two five-year enhancements for prior 

serious felony convictions under section 667, subdivision (a)(1), 

and one year for a prior prison term under section 667.5, 

subdivision (b). Rodriguez appealed, and this court affirmed his 

convictions, but reversed the true finding on the gang allegation

and remanded for resentencing.

At the resentencing hearing, the court struck the 10-year 

gang enhancement but did not strike either of the five-year 

enhancements under section 667, subdivision (a)(1), or the oneyear enhancement under section 667.5, subdivision (b). 

Rodriguez appeals again, arguing he is entitled to another 

sentencing hearing because the trial court did not recognize at 

the resentencing hearing it had discretion to strike either or both 

of the five-year enhancements under section 667, subdivision 

(a)(1). Rodriguez also argues the one-year enhancement under 

section 667.5, subdivision (b), must be stricken after the 

Legislature enacted Senate Bill No. 136, effective January 1, 

2020. We strike the one-year enhancement, and otherwise 

affirm. 

1 Undesignated statutory references are to the Penal Code. 
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FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Rodriguez on Two Counts of 

Carjacking, and the Trial Court Sentences Him to 

31 Years in Prison

In 2017 a jury convicted Gerardo Rodriguez on two counts 

of carjacking (§ 215, subd. (a)) and found true the allegation he

committed the offenses for the benefit of, at the direction of, or in 

association with a criminal street gang, with the specific intent to 

promote, further, or assist in criminal conduct by gang members, 

within the meaning of section 186.22, subdivision (b). The trial 

court found that Rodriguez had two prior serious or violent felony 

convictions withing the meaning of the three strikes law (§§ 667, 

subds. (b)-(j), 1170.12, subds. (a)-(d)), that he had two prior 

serious felony convictions within the meaning of section 667, 

subdivision (a)(1), and that he served several prior prison terms 

within the meaning of section 667.5, subdivision (b). (People v. 

Rodriguez (July 10, 2019, B280915) [nonpub. opn.].) 

Rodriguez filed a motion under People v. Romero (1996) 

13 Cal.4th 497 to strike both prior serious and violent felony 

convictions for purposes of the three strikes law. The trial court

granted the motion in part and struck one of the prior serious or 

violent felony convictions. The court also struck all but one of the 

prior prison terms. The court sentenced Rodriguez as a second 

strike offender to the middle term of five years for one of the 

carjacking convictions, doubled to 10 years under the three 

strikes law, plus a 10-year term for the gang finding under 

section 186.22, subdivision (b)(1)(C), two five-year terms for the 

prior serious felony convictions under section 667, subdivision 

(a)(1), and a one-year term for the section 667.5, subdivision (b),
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prior prison term, for a total sentence of 31 years. The court 

imposed an identical concurrent term for the other carjacking 

conviction. 

B. Rodriguez Appeals, This Court Remands for

Resentencing, and the Trial Court Strikes the Gang 

Enhancement

Rodriguez appealed. Among other contentions, he argued 

the trial court committed prejudicial error under People v.

Sanchez (2016) 63 Cal.4th 665 in admitting expert testimony 

about the predicate offenses required to establish the element of 

a pattern of criminal gang activity for the gang enhancement. In 

2019 we reversed the true finding on the gang enhancement 

allegation, otherwise affirmed the judgment, and gave the People 

the option to retry the gang allegations. We directed the trial 

court to resentence Rodriguez if, as ultimately occurred, the 

People declined to retry the gang allegation. 

During the resentencing hearing in November 2019 the 

court struck the gang allegation and stated, “I could just repeat 

the sentence before, but I’m going to indicate that it is to be the 

identical sentence that was previously given . . . minus the 10 

years I gave him for the gang allegation pursuant to 186.22(b)(1); 

that is taken away. And the sentence remains identical in all 

purposes for 21 years.” The People asked the trial court to 

“resentence without the 667. . . . to get to a 21-year-8 number,” 

but the trial court declined to make any changes to the sentence 

other than striking the gang enhancement and reducing 

Rodriguez’s restitution fine “in light of the reduced sentence.” 

Rodriguez appealed again.
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DISCUSSION

A. The Trial Court Did Not Fail To Recognize It Had

Discretion To Strike a Prior Conviction at 

Resentencing

1. Applicable Law and Standard of Review 

Prior to January 1, 2019, section 667, subdivision (a)(1),

required the court to impose a five-year sentence enhancement 

for each prior conviction of a serious felony. The court did not 

have discretion to strike a prior serious felony conviction. 

(Stats. 2018, ch. 1013, § 2; see People v. Reneaux (2020) 

50 Cal.App.5th 852, 875.) In 2018 the Legislature enacted 

Senate Bill No. 1393, effective January 1, 2019, which amended

sections 667 and 1385 to allow a judge to exercise discretion and 

strike a prior serious felony conviction in connection with the 

five-year enhancement. (Stats. 2018, ch. 1013, §§ 1-2; People v. 

Stamps (2020) 9 Cal.5th 685, 702.) Senate Bill No. 1393 applies 

retroactively to cases, like this one, that are not final as of the 

statute’s January 1, 2019 effective date. (Stamps, at 

pp. 698-699.)

“As a general rule ‘“a trial court is presumed to have been 

aware of and followed the applicable law.”’” (People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 398.) This rule applies 

to sentencing. (See People v. Weddington (2016) 246 Cal.App.4th 

468, 492 [“we presume that the trial court followed established 

law and thus properly exercised its discretion in sentencing a 

criminal defendant”]; People v. Bullock (1994) 26 Cal.App.4th 

985, 990-991 [“We are entitled to presume that the sentencing 

court properly exercised its discretion in imposing sentence 
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absent contrary evidence.”].) If the record is silent whether the 

trial court understood its sentencing discretion, we presume the 

court understood it. (See People v. Bolian (2014) 231 Cal.App.4th 

1415, 1421 [remand for resentencing is not required where “the 

record is merely silent on whether the court misunderstood its 

sentencing discretion”]; People v. Gutierrez (2009) 174 

Cal.App.4th 515, 527 [“in light of the presumption on a silent 

record that the trial court is aware of the applicable law, 

including statutory discretion at sentencing, we cannot presume 

error where the record does not establish on its face that the trial 

court misunderstood the scope of that discretion”]; People v. 

Brown (2007) 147 Cal.App.4th 1213, 1228-1229 [“remand is 

unnecessary if the record is silent concerning whether the trial 

court misunderstood its sentencing discretion” because “[e]rror 

may not be presumed from a silent record”].)

We review for abuse of discretion a trial court’s failure to 

dismiss or strike a prior conviction under section 1385. (People v. 

Carmony (2004) 33 Cal.4th 367, 374; People v. Carter (2018) 

26 Cal.App.5th 985, 995.) “In reviewing for abuse of 

discretion, . . . ‘“[t]he burden is on the party attacking the 

sentence to clearly show that the sentencing decision was 

irrational or arbitrary. [Citation.] In the absence of such a 

showing, the trial court is presumed to have acted to achieve 

legitimate sentencing objectives, and its discretionary 

determination to impose a particular sentence will not be set 

aside on review.”’” (Carmony, at pp. 376-377; see People v. Lee

(2017) 16 Cal.App.5th 861, 866 [to show an abuse of discretion, 

“the defendant must ‘affirmatively demonstrate that the trial 

court misunderstood its sentencing discretion’”].)
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2. The Trial Court Recognized It Had Discretion 

and Did Not Abuse It

We issued our decision in the prior appeal on July 10, 2019, 

over six months after Senate Bill No. 1393 amended sections 667

and 1385 to give trial judges discretion to strike prior serious 

felony convictions for purposes of the five-year enhancement. 

The trial court resentenced Rodriguez on November 25, 2019, 

over 10 months after the effective date of those amendments. 

Senate Bill No. 1393 applied to Rodriguez’s resentencing because 

his judgment was not final. (People v. Stamps, supra, 9 Cal.5th 

at p. 699.) The trial court had ample notice of the new law, and 

we presume, in the absence of any contrary evidence, the court 

was aware of, and applied, the new law.

Rodriguez asserts the trial court was unaware it had 

discretion to strike the five-year enhancements under section 

667, subdivision (a)(1), because the resentencing hearing was 

brief. Brevity, however, is not ignorance of discretion, and 

Rodriguez does not cite any evidence or statement suggesting the 

trial court was unaware of its (by then well-known) sentencing 

discretion to strike five-year enhancements under section 667, 

subdivision (a)(1). And as discussed, silence is not enough. (See 

People v. Carmony, supra, 33 Cal.4th at pp. 376-377; People v. 

Bolian, supra, 231 Cal.App.4th at p. 1421; People v. Brown, 

supra, 147 Cal.App.4th at pp. 1228-1229; People v. Gutierrez, 

supra, 174 Cal.App.4th at p. 527.) Indeed, contrary to 

Rodriguez’s assertion, the record suggests the trial court was 

fully aware it had discretion to strike the five-year enhancements 

but chose not to, twice emphasizing that, except for striking the 

10-year gang enhancement, the court wanted to impose an 

“identical” sentence in all other respects. 
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B. The One-Year Prior Prison Term Enhancement Must 

Be Stricken

Prior to January 1, 2020, section 667.5, subdivision (b),

authorized the court to impose a one-year sentence enhancement 

for each true finding “the defendant had served a separate prior 

prison term and had not remained free of custody for at least five 

years.” (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) 

Senate Bill No. 136, which was enacted on October 8, 2019 and 

became effective January 1, 2020, amended section 667.5, 

subdivision (b), to limit the applicability of the one-year prior 

prison term enhancement to those defendants who served a prior 

prison sentence for a sexually violent offense, as defined in 

Welfare and Institutions Code section 6600, subdivision (b). 

(Stats. 2019, ch. 590, § 1; see People v. Matthews (2020) 

47 Cal.App.5th 857, 862; People v. Smith (2020) 46 Cal.App.5th 

375, 396.) 

The one-year term the trial court imposed under section 

667.5, subdivision (b), was for a prior prison term Rodriguez 

served for unlawful driving or taking a vehicle (Veh. Code,

§ 10851, subd. (a)), which is not a sexually violent offense under

Welfare and Institutions Code section 6600, subdivision (b). As 

the People concede, because Rodriguez’s case was not final when 

the new law became effective, the new law applies to Rodriguez, 

and we must strike the one-year enhancement. (See People v. 

Jennings, supra, 42 Cal.App.5th at p. 682 [“Senate Bill 

No. 136’s . . . amendment to section 667.5, subdivision (b) applies 

retroactively to all cases not yet final as of its January 1, 2020 

effective date,” and where the defendant’s case was not “final as 

of that date, he is entitled to the ameliorative benefit” of the 

amended statute]; see also People v. Gastelum (2020) 
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45 Cal.App.5th 757, 772; People v. Winn (2020) 44 Cal.App.5th 

859, 872-873.) 

DISPOSITION

The one-year enhancement under section 667.5, subdivision 

(b), is stricken. As modified, the judgment is affirmed. The trial 

court is directed to prepare an amended abstract of judgment and 

forward it to the Department of Corrections and Rehabilitation.

SEGAL, J. 

We concur:

PERLUSS, P. J. 

FEUER, J.