People v. Rhoads CA5

Filed 2/23/22 P. v. Rhoads CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, F079979 Plaintiff and Respondent, (Super. Ct. No. BF174783A) v.

DANIEL AARON RHOADS, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge. Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- A jury convicted Daniel Aaron Rhoads of second degree murder and found true an allegation of personal and intentional discharge of a firearm within the meaning of Penal

Code1 section 12022.53, subdivision (d). The firearm enhancement added a prison term of 25 years to life to Rhoads’s sentence. On appeal, Rhoads contends the trial court was unaware of its discretion to reduce the punishment by substituting a lesser included but uncharged enhancement under subdivision (b) or (c) of the same statute. The California Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 supports this claim. The matter will therefore be remanded to allow the trial court to consider all sentencing options under section 12022.53. FACTUAL AND PROCEDURAL BACKGROUND In December 2018, detectives from the Kern County Sheriff’s Office questioned Rhoads about the disappearance of William Alford, who had been reported missing several weeks earlier. Rhoads admitted to killing Alford but claimed he acted in self- defense. When asked about the decedent’s remains, Rhoads told the detectives, “I bagged him and I put him in the trash.” Forensic evidence corroborated the confession, but Alford’s body was never found. In January 2019, Rhoads was charged with one count of willful, deliberate, and premeditated murder (§ 187, subd. (a)). For enhancement purposes, he was alleged to have killed the victim by means of personal and intentional discharge of a firearm (§ 12022.53, subd. (d)), to wit, a .308-caliber rifle. The case went to trial in April 2019. The jury acquitted Rhoads of first degree murder but found him guilty of second degree murder. A true finding was made on the firearm enhancement allegation. On May 14, 2019, defense counsel filed a sentencing memorandum wherein the trial court was asked to strike the firearm enhancement in the interests of justice. (See §§ 1385, 12022.53, subd. (h).) The People opposed the request. The motion hearing and sentencing both took place on September 4, 2019.