California Court of Appeal Sep 8, 2025 No. E083292Unpublished
Filed 9/8/25 P. v. Rodas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083292
v. (Super.Ct.No. RIF148425)
NESTER RODAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Justin Behravesh, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and
Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
1
At a hearing pursuant to Penal Code section 1172.75,1 the court found defendant
and appellant Nestor Rodas ineligible for a full resentencing hearing. On appeal,
defendant contends this court should reverse the order and remand the matter to the trial
court with directions to hold a full resentencing hearing. We reverse and remand the
On August 27, 2009, a jury found defendant guilty of carjacking (§ 215, subd. (a),
count 1), second degree robbery (§ 211, count 2), dissuading a witness (§ 136.1,
subd. (c)(1), count 3), and being a felon in possession of a firearm (former § 12021,
subd. (a)(1), count 4). The jury additionally found true allegations that defendant
personally used a firearm in his commission of the carjacking and robbery. (§ 12022.53,
subd. (b).) The court thereafter found true allegations that defendant had suffered a prior
serious felony conviction (§667, subd. (a)), a prior prison term (§ 667.5, subd. (b)), and a
prior strike conviction (§§ 667, subds. (c), (e) & 1170.12, subd. (c)). (People v. Rodas
(May 25, 2010, E049426) [nonpub. opn.] (Rodas).)
The court sentenced defendant to 39 years of imprisonment; the court imposed but
stayed sentence on the prior prison term enhancement. (Rodas, supra, E049426.)
Defendant appealed. This court affirmed the judgment. (Rodas, supra, E049426.)
1 All further statutory references are to the Penal Code.
2
At an unreported hearing on December 21, 2023, at which defendant was
represented by counsel,2 the court found defendant ineligible for resentencing.
II. DISCUSSION
Defendant contends this court should reverse and remand the matter with
directions to the trial court to hold a full resentencing hearing. The People agree.3 We
reverse and remand the matter with directions to the trial court to hold a full resentencing
hearing.
“In 2019, in an effort to reduce the societal and fiscal burdens of incarceration, the
Legislature passed Senate Bill No. 136 (2019–2020 Reg. Sess.) (Senate Bill No. 136),
which amended section 667.5[, subdivision] (b) to eliminate prior-prison-term
enhancements for all prior crimes except for ‘sexually violent offense[s] as defined in
subdivision (b) of Section 6600 of the Welfare and Institutions Code.’ (Stats. 2019,
2 “[S]ection 1172.75 does not authorize a defendant to seek resentencing on his or her own motion or petition. Rather the process is triggered by the Department of Corrections and Rehabilitation [CDCR] identifying a defendant as a person serving a sentence that includes a prior prison term enhancement. [Citation.]” (People v. Cota (2023) 97 Cal.App.5th 318, 332; accord, People v. Newell (2023) 93 Cal.App.5th 265, 268; accord, People v. Burgess (2022) 86 Cal.App.5th 375, 382 [Lower and appellate courts lack jurisdiction over a request for §1172.75 relief brought solely by a defendant].) On our own motion, we took judicial notice of a CDCR list, which identifies individuals potentially eligible for section 1172.75 relief; defendant’s name appears on that list.
3 We issued a tentative opinion on June 11, 2025, affirming the matter because defendant’s judgment included a stayed prior prison term for which he was not serving a term of imprisonment. Thereafter, the California Supreme Court issued its opinion in People v. Rhodius (2025) 17 Cal.5th 1050 (Rhodius), holding that defendants whose judgments include stayed prior prison terms are entitled to full resentencing hearings when courts strike the now invalid prior prison term enhancements. We vacated submission of the case and our tentative opinion; we provided the parties the opportunity to file supplemental briefs on the effect of Rhodius in this case, which they have done.
3
ch. 590, § 1.) In 2021, Senate Bill No. 483 (2021–2022 Reg. Sess.) made this change
retroactive. It enacted Penal Code section 1171.1 (Stats. 2021, ch. 728, §§ 1, 3), later
renumbered without substantive change as Penal Code section 1172.75 (section 1172.75)
(Stats. 2022, ch. 58, § 12), which declares: ‘Any sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for
any enhancement imposed for a prior conviction for a sexually violent offense as defined
in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.’
[Citation.]” (Rhodius, supra, 17 Cal.5th at p. 1054.)
“A defendant serving a term for a judgment that includes a now-invalid
enhancement is entitled to resentencing. [Citation.] To facilitate the process, the statute
directs [the CDCR] to ‘identify those persons in their custody currently serving a term for
a judgment that includes an enhancement described in subdivision (a).’ [Citation.] Upon
receiving that information, the sentencing court must ‘review the judgment and verify
that the current judgment includes a sentencing enhancement described in subdivision
(a).’ [Citation.] ‘If the court determines that the current judgment includes an
enhancement described in subdivision (a), the court shall recall the sentence and
resentence the defendant.’ [Citation.] The statute provides separate deadlines for
identification, review, and resentencing of ‘individuals . . . currently serving a sentence
based on the enhancement’ and ‘all other individuals.’ [Citation.]” (Rhodius, supra,
17 Cal.5th at p. 1055.)
4
“Section 1172.75, subdivision (d) sets forth detailed instructions for resentencing
once a sentence has been recalled. As relevant here, subdivision (d) specifies:
‘Resentencing pursuant to this section shall result in a lesser sentence than the one
originally imposed as a result of the elimination of the repealed enhancement, unless the
court finds by clear and convincing evidence that imposing a lesser sentence would
endanger public safety. Resentencing pursuant to this section shall not result in a longer
sentence than the one originally imposed.’ [Citation.] The trial court must ‘apply the
sentencing rules of the Judicial Council’ as well as ‘any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.’ [Citation.] In addition, the court may ‘consider
postconviction factors, including, but not limited to, the disciplinary record and record of
rehabilitation of the defendant while incarcerated, evidence that reflects whether age,
time served, and diminished physical condition, if any, have reduced the defendant’s risk
for future violence, and evidence that reflects that circumstances have changed since the
original sentencing so that continued incarceration is no longer in the interest of justice.’
[Citation.]” (Rhodius, supra, 17 Cal.5th at p. 1055.)
“Penal Code section 1172.75 entitles a defendant to resentencing if the underlying
judgment includes a prior-prison-term enhancement that was imposed before January 1,
2020, regardless of whether the enhancement was then executed or instead stayed.’
[Citation.]” (Rhodius, supra, 17 Cal.5th at p. 1054.)
5
Here, defendant’s judgment included a stayed prior prison term that was imposed
before January 1, 2020. The prior prison term was not for a sexually violent offense. At
the hearing, the court denied defendant’s request for a full resentencing hearing. Thus,
pursuant to Rhodius, the matter must be reversed and remanded with directions to the
court below to hold a full resentencing hearing.4
III. DISPOSITION
The matter is reversed and remanded to the trial court with directions to hold a full
resentencing hearing. We express no opinion on whether defendant would be entitled to
any further relief on remand.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J.
We concur:
MILLER J.
FIELDS J.
4 Here, the court also neglected to strike the enhancement. There is no new abstract of judgment in the record. Thus, we shall direct the court below to strike the enhancement in its entirety. (§ 1172.75, subd. (a); People v. Monroe (2022) 85 Cal.App.5th 393, 402 [“By its plain terms, section 1172.75 requires . . . the trial court strike the newly ‘invalid’ enhancements.”]; accord, People v. Garcia (2024) 101 Cal.App.5th 848, 855; accord People v. Green (2024) 104 Cal.App.5th 365, 373.)
6
AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose judgment includes a stayed prior prison term enhancement imposed before January 1, 2020, is entitled to a full resentencing hearing under Penal Code section 1172.75.
Issues
Whether a defendant is eligible for resentencing under Penal Code section 1172.75 when their judgment includes a stayed prior prison term enhancement.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.”