People v. Rodriguez CA5

INTRODUCTION

Defendant Abel Rodriguez, Jr., filed a timely notice of appeal following remand in Rodriguez I, in which this court vacated the jury’s gang enhancement findings under Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333) and remanded the matter for the prosecution to determine whether it was going to retry the gang enhancement allegations and, if not, for resentencing. (People v. Rodriguez (June 20, 2022, F080915) [nonpub. opn.] (Rodriguez I).)1 As discussed herein, the trial court erred when it conducted proceedings on remand in defendant’s absence and without a waiver of his right to personally appear, and the court erred when it failed to conduct a full resentencing after the prosecution elected not to retry the gang enhancement allegations. The parties agree that defendant is entitled to remand for resentencing and, in view of the prosecution’s election not to retry the gang enhancement allegations, to have the firearm enhancement findings under Penal Code section 12022.53, subdivisions (d) and (e)(1),2 vacated under Assembly Bill 333. However, they disagree whether the prosecution is entitled to the opportunity to retry the firearm enhancement…