People v. Rhodes CA6

Filed 10/10/23 P. v. Rhodes CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050010 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1351929)

v.

THOMAS EARL RHODES, JR.,

Defendant and Appellant.

Defendant Thomas Earl Rhodes, Jr. appeals from the order entered after the trial court recalled his sentence and resentenced him pursuant to former Penal Code section 1170, subdivision (d), now renumbered section 1172.1. (Undesignated statutory references are to the Penal Code.) As explained here, we will affirm the resentencing order. I. FACTUAL AND PROCEDURAL BACKGROUND Rhodes was charged by information in 2015 with six counts of second degree robbery (§ 211). (We omit the facts of the offenses as they are not relevant to the analysis and disposition of the appeal.) The information also alleged four prior strike convictions for robbery (§§ 667, subds. (b)–(i), 1170.12) and two prior serious felony convictions (§ 667, subd. (a)). Without a negotiated disposition, Rhodes pleaded no contest to the substantive charges and he admitted the strikes and the prior serious felonies alleged. In connection with the sentencing hearing, Rhodes moved to dismiss

the four strikes under People v. Superior Court (Romero) (1996) 13 Cal 4th 497 and section 1385, citing the trauma of growing up with an alcoholic father. At sentencing in 2016, the trial court partially granted the Romero motion by dismissing three of the four strikes. The court then imposed a 30-year prison sentence composed of: the upper term of five years on count 1 (doubled for the remaining strike); consecutive sentences on counts 2 through 6 of one year each (also doubled); plus consecutive five-year terms for each of the prior felony allegations under section 667, subdivision (a). Rhodes did not appeal the judgment. In January 2020, the Department of Corrections and Rehabilitation sent a letter to the trial court recommending recall of Rhodes’s sentence pursuant to former section 1170, subdivision (d). The letter explained that although at the time Rhodes was sentenced, consecutive five-year enhancements were mandatory for the section 667, subdivision (a)(1) prior serious felony convictions, the amended statute now authorized courts to exercise discretion to strike prior serious felony allegations. In a court filing supporting recall and resentencing, Rhodes described his history of abuse and trauma due to his father’s severe alcoholism. The brief recounted Rhodes’s recollections of abuse, and argued that his criminal conduct was connected to childhood trauma. Rhodes also noted changes to the determinate sentencing statute since his original sentencing. He contended that under newly added section 1170, subdivision (b)(2) he could no longer be sentenced to an upper term because no aggravating circumstances had been “pled or proven.” He also argued for the low term under newly added section 1170, subdivision (b)(6) because childhood abuse and trauma contributed to his crimes. At the resentencing hearing before the same judge who originally sentenced Rhodes in 2016, Rhodes repeated his contention that the court should impose a lower- term sentence under section 1170, subsection (b)(6) because of his childhood trauma, or at most, sentence him to the midterm. The prosecutor asked the court to reimpose the 30- 2