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     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                  2d Crim. No. B303428
                                                          (Super. Ct. No. 2019029287)
     Plaintiff and Respondent,                                 (Ventura County)

v.

ELIAS HUMBERTO
RODRIGUEZ,

     Defendant and Appellant.


           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.
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 agreed-
upon 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).)


                                2
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




                                 3
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.)




                                  4
              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.)




                                5
                          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.




                                6
                   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.
