Filed 9/26/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

FRANKIE RODRIGUEZ,

Defendant and Appellant.

F085606

(Super. Ct. No. PCF417465)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Robert 

Anthony Fultz, Judge.

C. Athena Roussos, 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 Hill, P. J., Meehan, J. and DeSantos, J.
2.

Defendant Frankie Rodriguez pled no contest to gross vehicular manslaughter 

while intoxicated and admitted having suffered a prior “strike” conviction within the 

meaning of the “Three Strikes” law (Pen. Code, §§ 667, subds. (b)–(i), 1170.12, 

subds. (a)–(d))1 which also qualified as a serious felony conviction (§ 667, subd. (a)). 

Pursuant to a negotiated plea agreement, defendant was sentenced to a 13-year term of 

imprisonment. 

Defendant’s appointed counsel had filed a brief pursuant to People v. Wende 

(1979) 25 Cal.3d 436, identifying no error and asking the court to determine whether 

there were any arguable issues on appeal. Defendant was afforded an opportunity to 

submit a supplemental brief but failed to do so in the time allotted. We have conducted 

an independent review of the record and find no error. We affirm.

PROCEDURAL BACKGROUND

On November 18, 2021, the Tulare County District Attorney filed an information 

charging defendant with gross vehicular manslaughter while intoxicated (§ 191.5, 

subd. (a); count 1), driving under the influence of alcohol and a drug, causing injury 

(Veh. Code, § 23153, subd. (a); count 2), driving with a blood-alcohol level above the 

legal limit causing injury (Veh. Code, § 23153, subd. (b); count 3), and operating a 

vehicle without a valid driver’s license (Veh. Code, § 12500, subd. (a); count 4). As to 

counts 1 through 3, the information further alleged that defendant had suffered a prior 

strike conviction within the meaning of the Three Strikes law (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d)) which also qualified as a prior serious felony conviction (§ 667, 

subd. (a)). As to counts 2 and 3, the information also alleged that defendant personally 

inflicted great bodily injury (§ 12022.7, subd. (a)).

On July 25, 2022, defendant moved to dismiss the prior serious felony conviction 

and prior strike conviction enhancement allegations pursuant to section 1385 and People 

1 All further statutory references are to the Penal Code unless otherwise stated.
3.

v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant contended that multiple 

enhancements had been alleged in one case (§ 1385, subd. (c)(2)(B)), imposition of the 

prior serious felony conviction enhancement could result in a sentence exceeding 

20 years (§ 1385, subd. (c)(2)(C)), the current offense was based on childhood trauma 

(§ 1385, subd. (c)(2)(E)), that count 1 was not a violent felony as defined in 

section 667.5, subdivision (c) (§ 1385, subd. (c)(2)(F)), and that the prior strike and 

serious felony conviction was over five years old (§ 1385, subd. (c)(2)(H)).

The People opposed the motion, detailing defendant’s serious and recent criminal 

history2 and explaining, inter alia, that section 1385 does not require dismissal of 

enhancements if dismissal would endanger public safety.

On August 11, 2022, the trial court denied defendant’s motion, concluding that 

defendant’s criminal history was recent and that he posed a danger to the community.

On October 27, 2022, defendant pled no contest on count 1 and admitted the prior 

strike and prior serious felony conviction pursuant to a negotiated plea agreement. The 

plea agreement provided that all remaining counts3 and allegations would be dismissed 

and defendant would be sentenced to 13 years in prison as follows: on count 1, 

eight years (the low term of four years, doubled due to the prior strike conviction) plus a 

five-year serious felony conviction enhancement. The parties stipulated that the 

preliminary hearing transcript provided a factual basis for defendant’s plea.

2 Defendant had previously been convicted of misdemeanor disturbing the peace 

(§ 415) in 2011; misdemeanor public intoxication (§ 647, subd. (f)) in 2011; assault by 

means of force likely to produce great bodily injury (§ 245, subd. (a)(4)) in 2013; 

carjacking (§ 215) in 2015, for which he was sentenced to prison for three years; and 

misdemeanor giving false information to a police officer (§ 148.9, subd. (a)) in 2019.

3 Defendant also pled no contest to misdemeanor vandalism in a separate case on 

the same date.
4.

On December 2, 2022, the trial court imposed the 13-year sentence as set out in 

the plea agreement4 and awarded defendant 417 days of actual time credit and 416 days 

of conduct credit. The trial court also imposed a restitution fine and a suspended parole 

revocation restitution fine, each in the amount of $3,000, and restitution in the amount of 

$7,500, as well as various other fees and fines.

On January 10, 2022, defendant filed a notice of appeal.

FACTUAL BACKGROUND5

On April 10, 2021, at 9:50 a.m., Lindsay Police Officer Andrew Robinson 

responded to a call regarding an automobile collision. When he arrived, he found a SUV 

with two occupants that had collided with a tree. He recognized the female passenger, 

KeeAna Jade Horn, from prior contacts. She was unconscious and in critical condition. 

He did not notice whether she was wearing a seatbelt. Defendant was the driver of the 

vehicle and Robinson recognized him from prior contacts. Defendant was in “very 

serious condition,” “in and out of consciousness,” and unable to speak or answer 

questions. Robinson noted that defendant emitted “a strong odor of alcoholic beverage.” 

Another officer responded to the scene and also noted the strong odor of alcoholic 

beverage emanating from defendant. Emergency medical services soon arrived and 

transported both occupants of the SUV to the hospital.

Jeanette Sanchez was a clinical lab scientist at the hospital. Part of her job was 

conducting drug and alcohol testing. On April 10, 2021, at 11:28 a.m., a sample was 

collected from defendant. Sanchez tested the sample which indicated positive for 

cannabis and cocaine. The test results only indicated that defendant had used cannabis 

4 The sentence included a 180-day concurrent term for vandalism in a separate case 

with credit for time served.

5 The factual background is drawn from the preliminary hearing transcript which 

was stipulated to be the factual basis for defendant’s plea.
5.

and cocaine; it did not indicate whether either substance had a psychoactive effect on the 

person tested. Defendant’s blood-alcohol percentage was 0.1.

California Highway Patrol Officer Tyrone Bowser was certified by the trial court 

as an expert in accident analysis. He examined the scene of the collision and determined 

that the SUV was driving northbound when it crossed the southbound lane and continued 

past the left shoulder of the roadway. The vehicle travelled approximately 30 feet in the 

dirt area to the west of the street before colliding with the tree and a carport. Bowser 

further determined that the driver of the vehicle began to brake and skid approximately 

100 feet before the site of the collision.

California Highway Patrol Officer Matthew Tyler interviewed witnesses after the 

collision. The owner of the property where the collision took place told Tyler that he 

heard the collision and then saw defendant in the driver seat of the SUV. A husband and 

wife were driving southbound along the same street. The wife saw the SUV driving at a 

high rate of speed, attempt a turn, skid, and collide with a carport, a parked vehicle, and a 

tree. Tyler was also certified by the trial court as an expert in accident analysis. He 

agreed with Bowser’s analysis of the collision.

On April 10, 2021, at approximately 9:20 p.m., Tulare County Sheriff’s Deputy 

Kathryn Zaninovich was dispatched to the hospital. The coroner had declared Horn dead. 

Zaninovich viewed Horn and confirmed that she was dead. Horn’s body had numerous 

lacerations, bruising, and swelling that Zaninovich opined was consistent with a vehicle 

collision.

A certified Department of Motor Vehicles printout was admitted, showing that 

defendant did not have a valid driver’s license on April 10, 2021.
6.

DISCUSSION

As noted above, defendant’s counsel filed a Wende brief identifying no basis for 

relief and asking that we review the record to determine whether there were any arguable 

issues on appeal. Having carefully reviewed the entire record, we conclude that there is 

no arguable issue on appeal. (People v. Wende, supra, 25 Cal.3d at pp. 441–443.)

DISPOSITION

The judgment is affirmed.