Unreported / Non-Citable
Background
Ray Anthony Rhodes was convicted by a jury of lewd acts upon a child, procuring a child to engage in a lewd act, pandering by procuring a minor under 16, and pimping a minor under 16, based on crimes committed in 2010 and 2011 against a 13-year-old runaway he encouraged to prostitute herself and beat when she refused. The trial court found he had served 10 prior prison terms, suffered two prior serious felony convictions, and had a prior strike, and in 2014 sentenced him to 45 years, including a doubled high term on count 1, consecutive doubled one-third midterms on other counts, seven one-year prison-prior enhancements, and two five-year serious-felony enhancements. The Court of Appeal affirmed on direct appeal in 2015.
In January 2025, Rhodes moved for recall and resentencing under Penal Code section 1172.75, asking the court to strike the seven prison priors, strike both section 667(a) enhancements, and impose midterms on all counts, supporting the motion with prison staff reports, course certificates, support letters, and a letter of remorse. The People agreed the prison priors should be dismissed but otherwise opposed reduction, citing Rhodes's continued disciplinary infractions in prison. The trial court struck the prison priors, followed People v. Brannon-Thompson and People v. Mathis in concluding it could reimpose the upper term on counts 1 and 6, refused to strike the section 667(a) enhancements because dismissal would endanger public safety, and resentenced Rhodes to 38 years.
The Court’s Holding
The Court of Appeal affirmed, reviewing the sentencing decisions for abuse of discretion. It held the trial court properly refused to dismiss the section 667(a) enhancements under section 1385's endanger-public-safety exception: the court considered Rhodes's rehabilitative materials but reasonably found them outweighed by the egregious nature of his offenses, his maturity at the time, and his escalating criminal conduct since juvenilehood, concluding there was a substantial likelihood dismissal would result in physical injury or serious danger to others. The court also held Rhodes forfeited his argument that the court should have assessed his dangerousness as of a future release date, because he never cited the supporting authority or asked the trial court to conduct a forward-looking analysis, despite that authority having issued well before the hearing.
On the upper term, the court sided with the majority of Courts of Appeal in interpreting section 1172.75, subdivision (d)(4) to permit a resentencing court to reimpose an upper term that was originally imposed without a stipulation or jury finding of aggravating circumstances, rejecting the Sixth District's contrary view in People v. Gonzalez. The court reasoned that Rhodes's 2014 upper-term sentence was valid under the then-existing broad-discretion regime that complied with the Sixth Amendment under Cunningham v. California, and that the Legislature may foreclose defendants resentenced after a valid upper-term sentence from the ameliorative factfinding benefits of the current section 1170, subdivision (b), without constitutional concern. The Supreme Court has granted review in other cases to resolve the split. Finally, the court ordered the trial court to correct a clerical error in the abstract of judgment, which misidentified count 3 as count 4, and to send a certified amended abstract to the Department of Corrections and Rehabilitation.
Key Takeaways
- A trial court does not abuse its discretion by refusing to strike section 667(a) enhancements when it weighs the defendant's rehabilitative evidence against the egregiousness of the offenses and criminal history and finds dismissal would endanger public safety.
- A defendant forfeits a forward-looking dangerousness argument under section 1385 by failing to present it, or cite the supporting authority, to the trial court at the resentencing hearing.
- Under the majority view of section 1172.75, subdivision (d)(4), a resentencing court may reimpose an upper term that was validly imposed at the original sentencing without new jury findings or stipulations to aggravating circumstances.
- Reimposing a previously valid upper term at a section 1172.75 resentencing does not violate the Sixth Amendment, because the Legislature may withhold newer ameliorative sentencing benefits from defendants whose original sentences were constitutional.
- The California Supreme Court has granted review in multiple cases, including Dozier and Lua, to resolve the appellate split over upper-term reimposition at section 1172.75 resentencing.
Why It Matters
The decision adds to the majority side of a recognized split among California Courts of Appeal over whether section 1172.75, subdivision (d)(4) exempts resentencing courts from section 1170, subdivision (b)'s aggravating-fact factfinding requirements when reimposing a previously imposed upper term, an issue now pending before the California Supreme Court. It also reinforces that the endanger-public-safety finding under section 1385, subdivision (c)(2) is a discretionary call that appellate courts will not disturb merely because the defendant offered evidence of rehabilitation, and it underscores the importance of preserving forward-looking dangerousness arguments in the trial court.