Filed 2 / 26 / 24 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. CARLOS MICHAEL RODRIGUEZ, Defendant and Appellant. G062277 (Super. Ct. No. 16CF0455)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed.

Siri Shetty, under appointment by the Co urt of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Paige Hazard and Minh U. Le, Deputy Attorneys General, for Plainti ff and Respondent.

* * *2 Carlos Michael Rodriguez served eight years in prison for a ssault ing a
p olice officer with a firearm

. Five months after being release d from prison , Rodriguez
shot a different officer in the head

. Rodriguez was convicted of attempted murder , related crimes, and sentenc e enhancements

. T he trial court imposed a n indeterminate

term of 14 years to life for the attempted murder conviction , plus a determinate term of 41 years , four months for the related crimes and sentenc e enhancements

.

T his court affirmed the convictions ; h owever, we remanded the matter for resentencing due to an ameliorative change in the la w (the exclusion of one

- year prison priors for most crimes )

. T he trial court again imposed a n indeterminate term of 14 years to life, but now imposed a lower determinate term of 32 years , fo ur months.

In this appeal, Rodriguez claims the tri a l court abused its discretion by not striking certain sentenc e enhancements. (Pen. Code, § 1385.) 1 We hold that the court did

not abuse its discretion and affirm the judgment.

I
FACTS AND PROCEDURAL BACKGROUND
In 2016, a Santa Ana police o fficer was on patrol i n a marked police vehicle
when he saw Rodriguez straddling a bike. The officer made eye contact with Rodriguez
and got out of his car

. Rodriguez started running. The officer ran after Rodriguez and
said , “‘ S top, police

. ’ ” The officer told Rodriguez he was going to catch him

. Rodriguez
loo ked back, said , “‘ C ome and get me

. ’ ”

Rodriguez ran through an archway and into a courtyard. The officer paused at the archway and could not see Rodriguez in the courtyard. As t he officer passed through the archway, he looked to his left and saw Rodrigue z 1 0 to 12 feet away pointing a gun at him. Rodriguez fired the gun. The officer ducked and fired three times at

1 Further undesignated statutory references are to the Penal Code

.3

Rodriguez , injuring him. The officer sustained a graze wound to his head. Police searched Rodriguez and found heroin, methamphetamine, and a second handgun

.

Court Proceedings

In 2019, a jury convicted Rodriguez of attempted murder, assault with a
firearm on a peace officer, unlawful possession of a firearm by a felon, possession for
sale of heroin, and possession for sale of methamphetamine. The jury also found true a
person al use of a firearm allegation . Rodriguez admitted a prior strike conviction , a prior serious felony conviction , and two prison priors

.

At the first sentencing hearing, the prosecut or relayed statements from the attempted murder victim. The police officer said , “ H e believed that he was set up for an ambush by the defendant , who was trying to kill him. [¶] When he turned the corner, the
defendant was lying in wait with a gun pointed at him, which he fired. [¶] [The officer] reported being significantly impacted emotionally and also sustained minor physical injury when his head was grazed by the bullet fired by the defendant.” The prosecutor
said: “It was a miracle [the officer] didn’t die that day.”

The trial court imposed an indeterminate term of 14 years to life for the attempted murder conviction ( seven years to life , doubled due to the strike). The court imposed a n additional determinate term of 41 years, four months a s follows:

Firearm enhancement (count one) 20 years Firearm enhancement (count two) 20 years (stayed) Serious felony enhancement (2) 10 years Prison prior (2) 2 years Possession of a firearm 16 months ( mid

- term x 2 ) Possession of heroin 8 years ( upper term x 2 ) Possession of methamphetamine 6 years ( upper term x 2, s tayed ) 41 years, four months4 T his court affirmed Rodriguez’s attempted murder and related convictions,
but we remanded the matter for resentencing due to an intervening ameliorative change in
the law ( the exclusion of one

- year prison prior sentence enhancements for most crimes). ( See People v. Rodriguez (Sept. 24, 2020, G057979) [nonpub. opn.].)

In 2023, t he trial court conducted the resentencing hearing (th e proceedings

are covered in detail in the discussion section of this opinion )

. The court again imposed

a n indeterminate term of 14 years to life for the attempted murder conviction. But the

court imposed a lower det erminate term of 32 years , four months as follows:

Firearm enhancement (count one) 20 years Firearm enhancement (count two) 20 years (stayed) Serious felony enhancement (1) 5 years Possession of a firearm 16 months ( mid

- term x 2 ) Possession of heroin 6 years ( mid

- term x 2 ) Possession of methamphetamine 4 years ( mid

- term x 2, stayed) 32 years, four months

Rodriguez filed an appeal

. (See People v. Arias (2020) 52 Cal.App.5th 213, 219

– 221 [a newly imposed sentence following r esentencing constitutes an appealable “‘ final judgment of conviction ’ under section 1237, subdivision (a) ” ] .)

II
DISCUSSION Rodriguez contends : “The matter should be remanded for resentencing where the trial court abused its discretion by declining to strike certain enhancements under amended section 1385, because it failed to consider the fact that defendant would remain subject to an indeterminate term even if the determinate enhancements wer e stricken.” (Boldfacing omitted.) We disagree.

W e review a trial court’s dec lination to dismiss a sentence enhancement for an abuse of discretion. ( People v. Sandoval (20 07 ) 41 Cal.4th 825 , 847

– 848 .) Absent a5

showing that the trial court was arbitrar y or capricious , we presume the court “‘“acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” ( People v. Carmony (2004) 33 Cal.4th 367, 376

– 377.) A tria l court’s discretionary sentencing decision s “‘“will not be reversed merely because reasonable people might disagree.”’” ( Ibid .)

In this discussion, we shall : A) state relevant principles of law; B ) review
the resentencing proceedings ; and C) analyze the law as applied to the facts.

A

. Relevant Legal Principles

“The judge or magistrate may, either on motion of the court or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.” (§ 1 385, subd. (a).) A trial court’s authority to dismiss an “ action ” in furtherance of justice also includes the ability to dismiss sentence enhancements. ( People v. Superior Court ( Romero ) (1996) 13 Cal.4th 497, 521

– 522.)

Senate Bill No. 81 (2021

- 2022 Reg. Sess.) added subdivision (c) to section 1385. Subdivision (c) provides, “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is proh ibited by any initiative statute.” (§ 1385, subd. (c)(1).)

“In exercising its discretion under [subdivision (c)], the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in [ the subparagraphs to subdivision (c)(2)] are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. ‘Endanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (§ 1385, subd. (c)(2).) The statutory mitigating circumstances include but are not limited to : (1) “The current offense is connected to prior victimization or childhood6

trauma ]” ; and (2) “The enhancement is based on a prior conviction that is over five years old.” (§ 1385, subd. (c)( 3 )( E ) & (H).)

T he Legislature’s “specification of mandatory fa ctors did not displace the trial court’s obligation to exercise discretion in assessing whether dismissal is ‘in the furtherance of justice.’” ( People v. Ortiz (2023) 87 Cal.App.5th 1087, 1093, review granted Apr. 12, 2023, S278894 ; but see People v. Walk er (2022) 86 Cal.App.5th 386,
3 98

– 399, review granted Mar. 22, 2023, S278309 [ when the presumption favoring the
dismissal of an enhancement arises, dismissal is required unless the court finds it would endanger public safety ].)

I f a trial court impose s a sentence without realizing the scope of its
discretion ( i.e., a lack of informed discretion) , an appellate court usually remands the

matter “‘ for resentencing unless the record “ clearly indicate[s] ” that the trial court would
have r eached the same conclusion “ even if it had been aware that it had such
discretion. ” ’” ( People v. Lopez (2022) 78 Cal.App.5th 459, 467.) However, a remand for resentencing is not required “if the record demonstrates the trial court was aware of its

senten cing discretion.” ( People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) Remand
also “ is unnecessary if the record is silent concerning whether the trial court misunderstood its sentencing discretion. Error may not be presumed from a silent record.” ( Id . at p. 1229 ; see also People v. Stowell (2003) 31 Cal.4th 1107, 1114 [ “‘a trial
court is presumed to have been aware of and followed the applicable law’” ].)

B

. Trial Court Proceedings

After th is court remanded the matter , Rodrigu e z and the prosecutio n filed
brief s in the trial court prior to the resentencing hearing.

Rodriguez stated that “when a resentencing occurs, it opens the case for reconsideration of all sentencing issues.” Rodriguez urged the court to dismiss the
enhancements. As far as mitigating circumstances, Rodriguez argued: “There was no7

planning , sophistication or professionalism. No minors participated or were used in the
conduct and there is no great bodily injury or taking of great monetary value.”

Rodriguez also stated that he “ was born with controlled substances in his system. His mother w as a prostitute and a drug addict. Due to this Mr. Rodriguez was raised by his grandmother who herself was physically abused by Mr. Rodriguez ’ grandfather, an alcoholic. His grandmother had difficulties dealing with his mental
health issues (specifically oppositional defiant disorder and ADHD) and physical issues related to being struck by a stray bullet in a drive by shooting which left him with long term injuries. He was eventually placed in foster care where he lived in foster homes and
residential tr eatment centers

. . . until he reached the age of majority. Upon his reaching the age of majority [he] returned to Santa Ana where he had minimal support and fell into
addiction. This addiction, inextricably linked to his experiences as a youth are clear contributing factors in the commission of his offense. ”

Rodriguez further argued “ there is no evidence or indication that

. . . dismissing enhancements would endanger public safety. There have been no subsequent threats or indication of animosity toward s the victim. There is nothing to indicate that Mr. Rodriguez would be any more dangerous if his sentence were shortened as the legislature intended. To the contrary even if his sentence were to be reduced based on the change in laws he would still be su bject to a life sentence and only subject to release on parole if he did not appear to pose a risk to public safety. ”

The prosecution urged the trial court to dismiss only the two one

- year prison priors. The prosecution noted Rodriguez ’s criminal histor y, which included a 2003 conviction for auto theft (60 days in jail) , a 2005 conviction for auto theft ( two years in state prison) , and 2009 convictions for assault with firearm on a peace officer and felony resisting arrest (eight years in state pri son). The prosecution s ummarized the
facts underlying the instant case and the 2009 convictions. In th e prior assault case, Rodriguez was a passenger in a car during a routine traffic stop. As a Santa Ana officer8

was conducting a patdown search of Rodri guez , he ran away. When police caught up with him, he p ull ed a handgun from his waistband. Rodriguez dropped his weapon only
after being electrically stunned (tase re d) by the police

.

The prosecution argued Rodriguez “is clearly a danger to public safety.” The prosecution state d: “ Just years prior to this, he was convicted of assault with a se m i

automatic firearm on a police officer and sentenced to eight years in prison. What is particularly troubling is that this lengthy prison sentence did not seem to have any
corrective effect on the defendant. He had been out of prison for only five months before attempting to kill the officer in the instant case. It ’ s been said that past behavior is the best predictor of future behavior, and the defendant has proven that point. The defendant has shown time and again to be a significant danger to public safety and his sentence
should therefore not be reduced. ”

At the resentencing hearing, the prosecutor said he spoke to the victim , who
wished to rely on his prior statements. Rodriguez said he wanted to apologize to the
officer in person and he was “very remorseful for everything.” Rodriguez’s attorney argued , in part : “The People’s response discusses the danger to society that the court

must ta ke into consideration. [¶ ] With regards to that , I think it is important for the court to remember that it is not about the danger to society right now . It is about . . . the danger that he would present to society at the time of his release. ” The atto rney argued that a term of “14

- to

- life without the remaining determinate sentence that the enhancements produce would protect the community and be appropriate , according to the goals the Legislature set out in the changing of 1385 that’s occurred.”

The tr ial court gave an indicated sentence of 14 years to life, plus a
determinate sentence of 32 years , four months (nine years lower than the original
determinate sentence of 4 1 years , four months). The trial court judge stated that he
believed the indicated sentence was “commensurate with [Rodriguez’s] behavior in the current case combined with his record.”9 The trial court said: “As to the defense motion to strike priors and enhancements, the court intends to respectfully decline the defense’s inv itation to exercise its discretionary power under People vs. Romero and Penal Code section 1385(c)(1) and will thus decline to strike the priors and enhancements for purposes of sentencing for the following reasons: [¶] The nature of the current offense is a very serious felony. T he current offense is a violent f elony. T he court finds by clear and convincing e vidence that the facts and circumstances of the c urrent offense indicate a great degree of danger to s ociety and to public safety. T here was inju ry to the v ictim, a weapon was used in the current offense. ” After hearing further comments from counsel,

t he court imposed the indicated sentence. 2

C

. A pplication and Analysis
T he trial court declined to strike Rodriguez’s remaining enhancements ( a prior strike , a five

- year serious felony prior , and a 20

- year firearm enhancement ) . The

court stat ed its ruling was based on Rodriguez’s criminal conduct : the commission of a serious and violent felony, the injury to the victim , and the use of the firearm

. T he court
also s tated that its total aggregate sentence was “commensurate with [Rodriguez’ s ]
behavior in the current case combined with his record.” T he cour t took into account the

recent statutory amendment

. ( See § 1 385 , subd. ( c) .) That is, t he court found “ by clear and convincing evidence that the facts and circumstances of the current offense indicate a great degree of danger to society and to public safety.”

In s hort, while another court may have rul ed differently , the trial court considered the relevant factors when it imposed a lawful indeterminate term of 14 years to life, plus a determinate term of 32 year s, four months

. We do not find t he court ’s
rulin g to be arbitrary or capricious. Thus, we find no abuse of the court’s sentencing

2 The trial court appears to have dismissed one of the two five

- year serious prior felony enhancements that was imposed in the initial sentence. ( See § 667, subd. (a)(1).)10

discretion. (See , e.g., People v. Shaw (2020) 56 Cal.App.5th 582, 588 [no abuse of
discretion where the trial “ court considered the relevant factors and reasonably concluded
it would not be ‘ in furtherance of justice ’ t o strike the five

- year enhancement ”].)

Rodriguez claims he “ remained subject to an indeterminate life term, which

meant that dismissal of the enhancements would not result in his release from custody.” Rodriguez argues: “In failing to consider Rodriguez’s possible future release date, the trial court misapplied section 1385, and abused its discretion. Accordingly, this court
should vac ate the sentence and remand the matter to the trial court with directions to properly exercise its discretion at a new hearing.” We disagree.

Although the trial court did not specifically mention Rodriquez’s “ possible future release date, ” that does not mean that the court failed to consider his parole eligibility date w hen determining he was a “danger to society and to public safety.” (See People v. Brugman (2021) 62 Cal.App.5th 608, 637 [ when declining to strike a sentence enhancement, a court “‘ is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary ’” ].)

I n declining to dismiss the enhancements, the trial court implicitly rejected Rodriguez ’s argument

— which he made at the hearing

— that the community would be adequately protected by imposing only the in determinate term

. I nstead , the court appears to have concluded that a potential release from prison after only 14 years would still present “ a great degree of danger to society and to public safety. ”

Rodriguez argues People v. William s (2018) 19 Cal.App.5th 1057 ( Williams ) compels a different result. We disagree. In Williams , defendant was
convicted of multiple c rimes in multiple trials with multiple strike priors . ( I d. a t pp. 1059

– 1060

. ) In 2003, a trial court s entenced defendant to a term of 193 years to life

. ( Id

. at p. 60.) In 2014, when defendant was 53 years old, he petitioned for resentencing due to changes in the Three Strikes sentencing scheme

. ( Ibid .) The trial court concluded
defendant posed an unreasonable risk to public safety and denied defendant’s petition.11

( Id. at p. 1061.) Defendant argued th e trial court abused its discretion and the Court of Appeal agreed: “ Determining whether resentencing a defendant poses an unreasonable risk of danger to society is necessarily a forward

- looking inquiry. ” ( Id . at p. 1063.)

Based on the facts of the case, t he Court of Appeal reasoned: “ A defendant who would obtain immediate release if the petition is granted poses a different potential danger to society than a defendant who could be released only in his or her 70’s. This applies with even greater force to a defendant who would still be serving a sentence greater than a human lifespan even if the petition were granted. For example, defendant’s current term of 193 years to life is the equivalent of life without parole since he cannot obtain parole until far beyond a human lifespan. Takin g 25 years off this term would still leave a parole date beyond any possible life expectancy. If a defendant’s term is still effectively life without parole after resentencing, then resentencing cannot pose an unreasonable risk to public safety. ” ( Willia ms , supra , 19 Cal.App.5th at p. 1063 .)

We find the facts of the instant case to be materially distinguishable from
the facts in Williams

. Rodriguez is much younger than the Williams defendant , who was 53 years old when he petitioned for resentencing

. Rodriguez was 3 0 years old when he
committed the instant crimes , and 37 years old at the time of the re sentencing hearing

. T herefore, an indeterminate term of 14 years to life , plus a determinate term of 32 years , four months i s not the equ ivalent of a life sentence without the possibility of parole as in
Williams

. As noted , Rodriguez argue d in the trial court (as he now argues in this appeal)
that the trial court sh ould have only imposed the indeterminate term of 14 years to life

. But m easure d from the date Rodriguez committed the instant crimes, that indeterminate

term may have rendered him first e ligible for parole at no later than 44 years of age

.

Finally, Rodriguez argues that if the court imposed only the indeterminate sentence of 14 years to life , he “might never be released un less the Board of Parole Hearings also made its own determination in the future that he posed no threat to public safety.” But under section 1385, subd ivision (c), the trial court was required to make its12

own determination a s to whether Rodriguez posed a threat to public safety

. W e do not interpret Williams to mean that a trial court is permitted to de legate its judgment regard ing a defendant’s future threat to public safety to the Board of Parole H earings. If that were the case, then the logical extension o f Rodriguez’s argument would mean that

a ny determinate term imposed by a trial court would constitute an abuse of discretion if it

w ere imposed in addition to a n indeterminate life term. We find no support for that proposition in Williams or in section 1385, subdivision (c)

. 3

To reiterate and conclude, we hold the trial court did not abuse its
discretion when imposing Rodrigu ez’s sentence . (See People v. Superior Court ( Alvarez ) (1997) 14 Cal.4th 968, 978 [“‘“ An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge ”’”].)

II I
DISPOSITION
T he judgment is affirmed.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOTOIKE, J.

3 We note that: “Whenever a person is committed to prison on a life sentence which is ordered to run consecutive to any determinate term of imprisonment, the determinate term of imprisonment shall be served first . . . .” (§ 669, subd. (a).)