Opinion
G054982
03-26-2018
THE PEOPLE, Plaintiff and Respondent, v. JOE MARTIN RODRIGUEZ, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF090811) OPINION Appeal from a judgment of the Superior Court of Riverside County, Mac R. Fisher, Judge. Affirmed in part, reversed in part, and remanded with directions. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
Joe Martin Rodriguez appeals from a judgment after the trial court reduced one of Rodriguez's first degree murder convictions to second degree murder. Rodriguez argues the trial court erred by ruling it did not have jurisdiction to reconsider the amount of the restitution fine. The Attorney General agrees. We agree and reverse and remand the matter for the limited purpose of the trial court addressing the issue of whether Rodriguez has the ability to pay the restitution fine. In all other respects, the judgment is affirmed.
FACTS
We incorporate by reference the summary of background facts from our opinion in People v. Rodriguez (May 18, 2011, G041444) [nonpub. opn.], and will not repeat them here. Suffice it to say, Rodriguez and two gang associates committed two counts of first degree murder. One gang member shot and killed Michael Faria as Faria's friend, Jessica Salazar, watched. The three men drove Salazar to a deserted location and the same gang member shot and killed Salazar.
In 2004, a jury convicted Rodriguez of murdering Salazar and found true a special circumstance and enhancements. The jury could not reach a verdict regarding Rodriguez's role in Faria's killing. In 2008, a jury convicted Rodriguez of aiding and abetting the first degree murder of Faria and found true enhancements; Rodriguez later admitted a special circumstance allegation. (Rodriguez, supra, G041444.)
The trial court sentenced Rodriguez to life in prison without the possibility of parole for murdering Salazar plus 25 years to life for a firearm enhancement, and ordered victim restitution of $5,000 (Pen. Code, § 1202.4) and a restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)). The court sentenced Rodriguez to a consecutive term of life without the possibility of parole for murdering Faria. The court imposed a restitution fine of $10,000 (Pen. Code, § 1202.4, subd. (b)), and direct victim restitution to be determined at a later date. (Rodriguez, supra, G041444.)
This court reversed an enhancement but upheld Rodriguez's convictions on appeal (Rodriguez, supra, G041444) and the California Supreme Court denied review (Rodriguez, supra, G041444, review den. Sept. 14, 2011, S194116). The United States Supreme Court denied certiorari. (Rodriguez v. California (2012) 565 U.S. 1212.)
After the California Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155 (Chiu), Rodriguez filed a petition for writ of habeas corpus in the superior court. Rodriguez argued his first degree murder conviction for killing Faria was invalid pursuant to Chiu. The prosecution conceded the issue and stipulated to a second degree murder conviction for Faria's murder. The trial court granted the habeas petition and set a resentencing hearing.
At the resentencing hearing, the trial court reduced Rodriguez's conviction for the murder of Faria to second degree murder and imposed a sentence of 15 years to life. As he did in his sentencing brief, Rodriguez requested the trial court reduce his restitution fine to the statutory minimum of $300 (Pen. Code, § 1202.4, subd. (b)), because he did not have the ability to pay. The trial court denied Rodriguez's request to reduce his restitution fine, concluding it lacked jurisdiction. The court added, "[I]f the court of appeal says I do have discretion, I don't believe I do, be happy to take it up at that time . . . . But I think I need an order from the Court of Appeals [sic]."
DISCUSSION
I. Restitution Fine
Rodriguez argues the trial court had jurisdiction to reconsider the restitution fine imposed pursuant to Penal Code section 1202.4, subdivision (b). The Attorney General agrees.
In People v. Burbine (2003) 106 Cal.App.4th 1250, 1254 (Burbine), defendant faced a 12-year midterm for continuous sexual abuse of a child and consecutive two-year terms for two counts of committing a lewd act on a child for a total of 16 years. On appeal, the appellate court reversed one of the lewd act convictions and remanded the matter for resentencing. (Ibid.) At the resentencing hearing, the trial court imposed the 16-year upper term for the continuous sexual abuse of a child conviction and a concurrent six-year term for the lewd act conviction. (Id. at p. 1255.) The Burbine court upheld the recalculated sentence, rejecting "the proposition that a remand for resentencing vests the trial court with jurisdiction only over that portion of the original sentence pertaining to the count that was reversed, and not over his sentence for the affirmed counts." (Id. at p. 1257.) The Burbine court concluded that "upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant's sentence on the counts that were affirmed, including the term imposed as the principal term." (Id. at p. 1259, italics added; People v. Rosas (2010) 191 Cal.App.4th 107, 117 [because felony sentences have interlocking quality, trial court retains jurisdiction to review all parts of sentence, including portions of sentence related to convictions affirmed on appeal].)
Here, after the trial court granted Rodriguez's habeas petition and reduced his conviction for murdering Faria to second degree murder, the court set a resentencing hearing. Pursuant to Burbine, the trial court had jurisdiction to consider "every aspect" of Rodriguez's sentence. Below, Rodriguez detailed facts to support his argument he did not have the ability to pay the $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)). The trial court concluded it did not have jurisdiction of the issue, and thus did not consider those facts. The Attorney General concedes this was error, and we agree. "[W]hen the record indicates the court misunderstood or was unaware of the scope of its discretionary powers, we should remand to allow the court to properly exercise its discretion. [Citations.]" (People v. Bolian (2014) 231 Cal.App.4th 1415, 1421.) Therefore, we remand the matter for the trial court to reconsider the issue of whether Rodriguez has the ability to pay the restitution fine pursuant to Penal Code section 1202.4, subdivision (b). II. Abstract of Judgment
The Attorney General points out two errors in the abstract of judgment regarding Rodriguez's sentence for the murder of Salazar. First, the abstract of judgment indicates the 25-year sentence for the firearm enhancement was stayed instead of imposed consecutively. Second, the abstract of judgment does not reflect the trial court imposed $5,000 in victim restitution (Pen. Code, § 1202.4, subd. (f)). Because we remand the matter for resentencing for the limited purpose of allowing the trial court to exercise its discretion regarding the restitution fine, the clerk of the superior court will prepare a new abstract of judgment correcting these mistakes.
DISPOSITION
The judgment is reversed and the matter is remanded for the limited purpose of permitting the trial court to address the issue of whether Rodriguez has the ability to pay the restitution fine pursuant to Penal Code section 1202.4, subdivision (b). After that determination, the clerk of the superior court is directed to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation, Division of Adult Operations. In all other respects, the judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. ARONSON, J.