Filed 8/20/20 P. v. Rodriguez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ELIAS HUMBERTO 

RODRIGUEZ,

 Defendant and Appellant.

2d Crim. No. B303428

(Super. Ct. No. 2019029287)

(Ventura County)

Elias Humberto Rodriguez appeals from the 

judgment after he pled guilty to indecent exposure with a prior 

indecent exposure conviction (Pen. Code,1 § 314, subd. (1)) and 

admitted allegations that he had suffered a prior strike 

conviction (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) and 

served two prior prison terms (§ 667.5, subd. (b)). At sentencing, 

the trial court struck the prior strike and one of the prison priors

and sentenced Rodriguez to two years four months in state 

1 Further statutory references are to the Penal Code.
2

prison. The court also ordered him to pay a sex offender fine 

(§ 290.3) plus penalties and a surcharge, in the total amount of

$1,200.

Rodriguez contends he is entitled to have the prior 

prison term enhancement stricken from his sentence.

2 The 

Attorney General contends we should remand the case to permit 

the court to conduct a new hearing on the sex offender fine and 

associated penalties and surcharge. We agree with both 

contentions, and remand.

FACTUAL AND PROCEDURAL HISTORY

Prosecutors charged Rodriguez with indecent 

exposure after police caught him masturbating outside an 

Oxnard business. They also alleged that he had suffered a prior 

strike conviction for robbery and served prior prison terms for 

that conviction and another conviction for receiving stolen 

property. Rodriguez pled guilty and admitted the allegations in 

exchange for a stipulated sentence of 16 months on the indecent 

exposure conviction plus one year on one of the prison priors. 

The plea agreement stated that he could be ordered to pay a $500 

sex offender fine, penalties totaling $27 for every $10 in fines 

imposed, and a surcharge equal to 20 percent of the base fine. 

At the sentencing hearing, the trial court struck the 

prior strike and one of the prison priors and imposed the agreedupon sentence. The court also ordered Rodriguez to pay a sex 

offender fine of “$1,200 including penalty assessments,” but did 

not state how it calculated that amount. Neither Rodriguez nor 

2 Rodriguez was not required to obtain a certificate of 

probable cause to bring this appeal. (People v. Stamps (2020) 9 

Cal.5th 685, 694-698 (Stamps).)
3

the prosecutor objected to the calculation. The fine, penalties,

and surcharge are not listed on the abstract of judgment. 

DISCUSSION

Prior prison term sentence enhancement

When the trial court sentenced Rodriguez, section

667.5, subdivision (b), required it to add one year to his sentence 

because of his prior term in prison. (People v. Jennings

(2019) 42 Cal.App.5th 664, 681 [enhancement mandatory unless

stricken].) The Legislature subsequently enacted Senate Bill No. 

136 (S.B. 136), which, effective January 1, 2020, limits the 

applicability of prior prison term sentence enhancements to 

prison terms served for sexually violent offenses. (Ibid.) The 

provisions of S.B. 136 apply retroactively to cases that are not yet 

final on appeal. (Id. at pp. 681-682.)

Rodriguez contends he is entitled to relief under S.B. 

136 since his prior prison term was not for a sexually violent 

offense and his case is not yet final. We agree. But we disagree 

that the proper remedy is to order the trial court to strike the 

prison prior and leave the remaining 16 months of Rodriguez’s 

sentence intact. 

S.B. 136 “‘does not entitle defendants who negotiated 

stipulated sentences “to whittle down [their] sentence[s] ‘but 

otherwise leave [their] plea bargains[s] intact.’”” (Stamps, supra, 

9 Cal.5th at p. 706.) If Rodriguez elects to pursue S.B. 136 relief, 

the court may not simply strike the “enhancement but otherwise 

keep[] the remainder of the bargain.” (Id. at p. 707.) Once the 

enhancement is stricken, the court will be able to withdraw its 

approval of the plea agreement. (Id. at pp. 706-708.) The 

prosecutor, too, will be able to withdraw from the agreement. (Id.

at p. 707.) Or perhaps the prosecutor will “agree to modify the 
4

bargain to reflect [Rodriguez’s preferred] downward departure in 

[his] sentence,” and the court will approve the new plea. (Ibid.) 

Given these potential outcomes, it is “ultimately 

[Rodriguez’s] choice whether to seek relief under [S.B. 136].” 

(Stamps, supra, 9 Cal.5th at p. 708.) While he “has consistently 

argued on appeal that [S.B. 136] should retroactively apply to 

him, his argument has always been coupled with his claim that 

the proper remedy [is] to simply allow the trial court to reduce 

his sentence by [one year] while otherwise maintaining the 

remainder of the plea agreement.” (Ibid.) Because we have 

rejected that claim, Rodriguez’s “calculus in seeking relief under 

[S.B. 136] may have changed.” (Ibid.) He should now “be allowed 

to make an informed decision whether to seek relief on remand.” 

(Ibid.)

Sex offender fine, penalties, and surcharge

The Attorney General argues we should remand the 

case to permit the trial court to recalculate the amount Rodriguez 

owes on his sex offender fine and the associated penalties and 

surcharge. We agree.

Normally, a party must object at trial to raise an 

argument on appeal. (People v. Smith (2001) 24 Cal.4th 849, 

852.) But there is an exception for “‘“unauthorized sentences” or 

sentences entered in “excess of jurisdiction.”’ [Citation.]” (Ibid.) 

Such sentences cannot “‘lawfully be imposed under any 

circumstance in [a] particular case,’” and are thus “reviewable 

‘regardless of whether an objection or argument was raised in the 

trial . . . court.’ [Citation.]” (Ibid.) They present “‘pure questions 

of law’” and are “‘“clear and correctable” independent of any 

factual issues presented by the record at sentencing.’ [Citation.]” 

(Ibid.)
5

Here, the trial court exercised its discretion and 

ordered Rodriguez to pay a $500 sex offender fine. (See People v.

Walz (2008) 160 Cal.App.4th 1364, 1370 [fine mandatory unless 

court determines defendant does not have ability to pay]; see 

§ 290.3.) It then added various penalties and a surcharge to that 

fine. But the total amount added—$700—does not conform to 

legal requirements. (See People v. Voit (2011) 200 Cal.App.4th 

1353, 1373-1374 [listing required penalties and surcharges].) On 

remand, the court must recalculate that total, and hold a hearing 

to provide Rodriguez the opportunity to show that he does not 

have the ability to pay it. (People v. Valenzuela (2009) 172 

Cal.App.4th 1246, 1249-1250.) At the conclusion of that hearing, 

the court must provide a detailed, on-the-record recitation of all 

of the fees it has imposed. (People v. High (2004) 119 Cal.App.4th 

1192, 1200 [though such a recitation “may be tedious, California 

law does not authorize shortcuts”].) The fine and its associated 

penalties and surcharge must then be set forth accurately in an 

amended abstract of judgment. (Ibid.)
6

DISPOSITION

The matter is remanded to the trial court with 

directions to: (1) permit Rodriguez the opportunity to request 

relief pursuant to S.B. 136, (2) recalculate the penalties and 

surcharge imposed in conjunction with the sex offender fine, and 

(3) hold a hearing to provide Rodriguez the opportunity to prove 

that he does not have the ability to pay the recalculated total. 

The clerk of the court shall thereafter prepare a new abstract of 

judgment, and forward a certified copy to the Department of 

Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Gilbert A. Romero, Judge

Superior Court County of Ventura

______________________________

Jolene Larimore, 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, 

Assistant Attorney General, David E. Madeo and Peggy Z. 

Huang, Deputy Attorneys General, for Plaintiff and Respondent.