People v. Rhoades CA2/4 ( 2020 )

Filed 12/8/20 P. v. Rhoades CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B302808
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA113274)
v.
RICHARD DANIEL RHOADES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Affirmed.
Law Office of Zulu Ali & Associates and Whitney Ali
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Stephanie C. Brenan and
Nikhil Cooper, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
After a jury convicted appellant Richard Daniel
Rhoades of attempted robbery and assault by means of force
likely to produce great bodily injury, the court sentenced him
to 12 years in prison. Because the court found appellant had
previously been convicted of a serious felony, the sentence
included a then mandatory five-year enhancement under
Penal Code section 667, subdivision (a)(1) (Section
667(a)(1)).1 While appellant’s appeal was pending, the
Governor signed Senate Bill No. 1393, granting sentencing
courts discretion to strike Section 667(a)(1) enhancements in
the interest of justice. Thus, while we affirmed the
judgment, we remanded the matter to permit the trial court
to exercise its discretion.
In accordance with our directive, the trial court held a
hearing in September 2019 to decide whether to strike the
five-year enhancement based on appellant’s prior serious
felony. After hearing appellant argue the same points he
now argues on appeal, the court declined to strike the
enhancement and reimposed the sentence previously
imposed. On appeal, appellant contends the court abused its
discretion by declining to strike the enhancement, both
1 (Section 667(a)(1) [“Any person convicted of a serious felony
who previously has been convicted of a serious felony . . . shall
receive, in addition to the sentence imposed by the court for the
present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately”].) All further
undesignated statutory references are to the Penal Code.
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because the court failed to consider several relevant factors,
and because the court’s refusal to strike the enhancement
was not in the interest of justice. Finding no error, we
affirm.
STATEMENT OF RELEVANT FACTS
In August 2017, a jury convicted appellant of
attempted robbery and assault by means of force likely to
produce great bodily injury, and found true an allegation
that appellant personally inflicted great bodily injury during
the crimes within the meaning of section 12022.7,
subdivision (a).
Before sentencing, the court held a “priors” trial and
found appellant had suffered a serious felony conviction in
1987. It therefore sentenced appellant to a total of 12 years:
two years for assault by means of force likely to produce
great bodily injury, doubled to four years because appellant
had a previous strike, and enhanced by three years for
personally inflicting great bodily injury within the meaning
of section 12022.7, subdivision (a), and by another five years
under Section 667(a)(1) for the previous serious felony
conviction.2 At the time, the trial court lacked discretion to
strike the Section 667(a)(1) enhancement.
Appellant filed both an appeal and a petition for writ of
habeas corpus. During the pendency of the appeal, the
2 The sentence for attempted robbery was stayed under
section 654.
3
Governor signed Senate Bill No. 1393, permitting trial
courts to exercise discretion to strike five-year sentence
enhancements based on prior serious felony convictions. We
therefore remanded to permit the court to exercise this
newly granted discretion, but otherwise denied the habeas
petition and affirmed the judgment. (People v. Rhoades
(Jan. 17, 2019, B285932) [nonpub. opn.].)
In September 2019, the trial court held a hearing on
whether to strike the Section 667(a)(1) enhancement.
Appellant argued the court should strike the enhancement
because: (a) his prior serious felony conviction occurred in
1987 and “was not the result of any actual physical harm to
anyone,” while appellant’s other convictions were also non-
violent and occurred during a period when he was suffering
from drug and alcohol problems; (b) although appellant was
convicted of assault in the instant case, he believed he was
acting in self-defense; (c) appellant was suffering from
serious medical conditions, including issues requiring
surgery and chemotherapy; and (d) appellant was 57 years
old, and a seven-year sentence (which would result if the
court struck the five-year enhancement from his 12-year
sentence) would still be a significant punishment. The
People countered that appellant’s criminal record included
previous convictions involving “violence and crimes of moral
turpitude” and noted his testimony at trial -- that he acted in
self-defense -- was unpersuasive and unbelievable.
The court remarked that the victim in the instant case
had no bruises or cuts on his hands, which might have
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caused the jury to disbelieve appellant’s self-defense theory.
The court also noted that appellant’s criminal record
included convictions for assault with a deadly weapon and
battery, as well as “two full pages of theft-related type
activities, bookmaking, narcotics convictions, et cetera mixed
in with . . . the 459 [burglary] first degree for which he went
to state prison and a 666 petty [theft] with a prior for which
he also went to state prison.” After discussing the serious
nature of the charges in the instant case, the court declined
to strike the Section 667(a)(1) enhancement, and reimposed
the 12-year sentence it had previously imposed. Appellant’s
motion for reconsideration was denied. Appellant timely
appealed.
DISCUSSION
Appellant argues the court erred because: (a) it failed
to consider several relevant factors in refusing to strike the
enhancement; and (b) its refusal to strike the enhancement
was not “in the interest of justice.” We address each
argument in turn.
A. The Relevant Factors
A “court is presumed to have considered all of the
relevant factors in the absence of an affirmative record to the
contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 309,
310 [affirming trial court’s denial of motion to strike prior
convictions despite appellant’s contention that the court
failed to weigh relevant sentencing factors including age and
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remoteness of prior offenses].) Appellant argues that in
refusing to strike his prior serious felony enhancement, the
court failed to consider: (a) that his prior felony was 32
years old, did not involve violence, and occurred during a
time when he was suffering from drug and alcohol abuse; (b)
that he was defending himself from the victim; (c) that he
was 57, needed surgery, and was undergoing chemotherapy;
and (d) that reducing his sentence from 12 years to seven
would still constitute significant punishment for his crime.
Appellant made these same arguments to the trial
court. Nothing in the record suggests the court failed to
consider them; in fact, the court expressly addressed several
of them. Specifically, the court noted the physical evidence
contradicted appellant’s self-defense claim, discussed the
serious nature of the charges in the instant case, and
remarked on appellant’s lengthy criminal record, which
included assault with a deadly weapon, battery, and
numerous other convictions. Appellant fails to rebut the
presumption the court considered all relevant factors in its
refusal to strike the Section 667(a)(1) enhancement.
B. The Court Did Not Abuse Its Discretion
“[A] trial court’s refusal or failure to dismiss or strike a
prior conviction allegation . . . is subject to review for abuse
of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375
(Carmony).) The party attacking the sentence bears the
burden “‘“to clearly show that the sentencing decision was
irrational or arbitrary. [Citation.] In the absence of such a
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showing, the trial court is presumed to have acted to achieve
legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.”’” (Id. at 376-377.) A “‘“decision will not be
reversed merely because reasonable people might disagree.
‘An appellate tribunal is neither authorized nor warranted
in substituting its judgment for the judgment of the trial
judge.’”’” (Id. at 377.) In other words, “a trial court does not
abuse its discretion unless its decision is so irrational or
arbitrary that no reasonable person could agree with it.”
(Ibid.)
Appellant argues that in declining to strike the
sentencing enhancement, the trial court “failed to exercise
[its] discretion in the interest of justice.” The question before
us, however, is whether the court’s refusal to strike the
enhancement was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at 377.) Appellant presents no authority that the
circumstances in this case would compel all reasonable
persons to agree that striking the enhancement was
required; indeed, several cases cited by the People stand for
the contrary conclusion. (People v. Taylor (2020) 43
Cal.App.5th 1102, 1113 [affirming trial court’s refusal to
strike prior felony even though felony was from 1993 and
defendant was presently 55 years old and in poor health];
People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the
overwhelming majority of California appellate courts have
reversed the dismissal of, or affirmed the refusal to dismiss,
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a strike of those defendants with a long and continuous
criminal career”]; id. at 345-346 [“Three Strikes law only
requires one prior serious or violent felony conviction to
trigger its directive to double ‘the term otherwise provided as
punishment for the current felony conviction’” and the fact
that defendant’s subsequent convictions over 19 years
thereafter did not involve violence “certainly does not argue
that defendant falls outside the spirit of” the Three Strikes
Law].) By failing to file a reply brief, appellant has declined
to address these cases. They persuade us that the trial
court’s refusal to strike the enhancement was neither
irrational nor arbitrary.
Appellant has failed to rebut the presumption that the
trial court considered all relevant factors at his resentencing,
and has failed to demonstrate the court’s refusal to strike
the prior serious felony enhancement was either irrational or
arbitrary. Accordingly, we discern no abuse of discretion.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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