Filed 10/8/26 P. v. Rhodes CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B348860
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. XCNBA383914)
RAY ANTHONY RHODES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David R. Fields, Judge. Affirmed with
directions.
Cynthia Janis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Nima Razfar, Deputy Attorneys
General, for Plaintiff and Respondent.
_______________________
Ray Anthony Rhodes appeals the trial court’s order
resentencing him pursuant to Penal Code section 1172.75.1 He
argues the court abused its discretion in refusing to dismiss two
prior serious felony enhancements and reimposing an upper term
sentence on one of the counts. We affirm but order the trial court
to correct a clerical error in the abstract of judgment.
BACKGROUND
In 2013, at age of 35, Rhodes was charged with various
crimes committed in 2010 and 2011 involving a female minor.
The People’s evidence showed Rhodes had met the girl on a
streetcorner when she was a 13-year-old runaway. (People v.
Rhodes (Feb. 4, 2015, B254682) [nonpub. opn.] (Rhodes).) She
initially believed they were in a romantic relationship, and they
engaged in vaginal and oral sex. (Ibid.) Rhodes then encouraged
her to prostitute herself and turn the money over to him. (Ibid.)
Rhodes beat her if she refused to cooperate with his demands.
(Ibid.)
Rhodes testified on his own behalf. (Rhodes, supra,
B254682.) He denied any physical contact with the minor and all
prostitution allegations. (Ibid.) Instead, he claimed they had a
platonic business relationship in which he sold her marijuana.
(Ibid.)
A jury convicted Rhodes of committing lewd acts upon a
child (§ 288, subd. (a); counts 1 & 3), procuring a child to engage
in a lewd act (§ 266j; count 5), pandering by procuring a minor
under age 16 (§ 266i, subd. (b)(2); count 6), and pimping a minor
under age 16 (§ 266h, subd. (b)(2); count 7). The trial court found
Rhodes had served 10 prior prison terms (see § 667.5, former
1 Undesignated statutory references are to the Penal Code.
2
subd. (b) (section 667.5(b))), some of which were duplicates, and
had suffered two prior serious felony convictions (§ 667,
subd. (a)(1) (section 667(a) enhancements)) and a prior strike
(§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). (Rhodes, supra,
B254682.)
The trial court sentenced Rhodes to 45 years, comprising:
16 years on count 1 (the high term of eight years, doubled for the
strike); consecutive four-year terms on counts 3, 5, and 7 (one
third the midterm of six years, doubled); one-year terms for each
of the seven prison priors; and five-year terms for each of the two
prior serious felonies. The four-year sentence on count 6 was
stayed pursuant to section 654.
Our court affirmed the judgment on direct appeal. (Rhodes,
supra, B254682.)
In January 2025, Rhodes moved for section 1172.75 recall
and resentencing. He asked the trial court to: (1) strike the seven
section 667.5(b) prison priors; (2) strike both section 667(a)
enhancements; and (3) sentence him to the midterm on all
counts. Rhodes provided a number of exhibits supporting his
motion, including laudatory reports from prison staff attesting to
his good conduct, certificates showing his completion of various
courses, letters of support from friends, family, and community
members, and his own letter expressing remorse for his crimes.
The People agreed the prison priors should be dismissed but
argued Rhodes’s sentence should otherwise remain unchanged, in
part because he continued to commit disciplinary infractions in
prison (possession of a cell phone, participating in a riot, fighting,
and refusing to work).
The trial court recalled Rhodes’s sentence and struck the
section 667.5(b) prison priors. As to the upper term, the court
acknowledged a split of authority among the Courts of Appeal,
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but decided to follow People v. Brannon-Thompson (2024) 104
Cal.App.5th 455 (Brannon-Thompson) and People v. Mathis
(2025) 111 Cal.App.5th 359, review granted August 13, 2025,
S291628 (Mathis), in concluding it could reimpose the upper term
on counts 1 and 6. The count 6 sentence remained stayed. The
court refused to strike the section 667(a) enhancements on the
ground “dismissal . . . would endanger public safety.” It
resentenced Rhodes to 38 years.
Rhodes timely appealed. (§ 1237, subd. (b); Cal. Rules of
Court, rule 8.308(a).)
DISCUSSION
We review a trial court’s sentencing decisions for abuse of
discretion. (People v. Moseley (2024) 105 Cal.App.5th 870, 874.)
“[A] trial court does not abuse its discretion unless its decision is
so irrational or arbitrary that no reasonable person could agree
with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377
(Carmony).)
The trial court’s interpretation of a statute is reviewed de
novo. (People v. Gonzalez (2024) 107 Cal.App.5th 312, 323
(Gonzalez).)
I. The Trial Court Did Not Abuse Its Discretion in
Refusing to Strike the Section 667(a) Enhancements
When Rhodes was originally sentenced in 2014, the trial
court lacked discretion to dismiss the section 667(a) five-year
enhancements. (People v. Shaw (2020) 56 Cal.App.5th 582, 586
(Shaw).) But by the time of resentencing, legislative changes had
given trial courts the “power to strike [those] enhancement[s] ‘in
the furtherance of justice.’ ” (Ibid.; see also §§ 667, subd. (a),
1385, subd. (b)(1).)
The Legislature also “specif[ied] mitigating circumstances
. . . the trial court should consider when deciding whether to
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strike enhancements.” (People v. Lipscomb (2022) 87 Cal.App.5th
9, 16; § 1385, subd. (c)(2).) “Proof of the presence of one or more of
these circumstances weighs greatly in favor of dismissing the
enhancement, unless the court finds that dismissal of the
enhancement would endanger public safety. ‘Endanger public
safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or serious danger to
others.” (§ 1385, subd. (c)(2).) If a court determines dismissal of
an enhancement would endanger public safety, it need not
consider the statutory mitigating factors. (People v. Mendoza
(2023) 88 Cal.App.5th 287, 297 & fn. 6 (Mendoza); see People v.
Walker (2024) 16 Cal.5th 1024, 1033 [citing Mendoza with
approval].)
Rhodes argues the trial court abused its discretion in
refusing to dismiss the enhancements by failing to properly
weigh his recent prison conduct and to consider he would be less
dangerous by the time of his eventual release. We disagree with
Rhodes’s first argument and conclude he forfeited the second.
A. The Trial Court Properly Considered Rhodes’s
Recent Conduct
Rhodes concedes the trial court acknowledged he “tried to
improve himself while in prison,” but he argues the court unduly
minimized his remorse and his rehabilitative efforts in prison.
Essentially, he asks us to reweigh the evidence and reach a
different conclusion than did the court. But in reviewing for
abuse of discretion, we cannot substitute our judgment and must
affirm so long as the court’s decision was not “so irrational or
arbitrary that no reasonable person could agree with it.”
(Carmony, supra, 33 Cal.4th at p. 377.) In the specific context of a
court’s refusal to dismiss a section 667(a) enhancement, no abuse
of discretion “occurs if the . . . court evaluates all relevant
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circumstances to ensure that the punishment fits the offense and
the offender.” (Shaw, supra, 56 Cal.App.5th at p. 587.)
The trial court’s decision that dismissal of the
enhancements would endanger public safety was entirely
reasonable. The court invited defense counsel to argue “why in
this case should the court not find a[n] ‘endangering public safety
exception.’ ” Defense counsel pointed to praise for Rhodes’s
behavior by prison personnel, Rhodes’s letter of remorse, and
letters of support from Rhodes’s family and community. The court
acknowledged all those materials and the record made by
Rhodes’s motion, but determined they were outweighed by
countervailing factors. The court discussed at length the
“egregious” nature of Rhodes’s offenses of conviction, Rhodes’s
age and maturity at that time, and his “continuing pattern of
escalating criminal conduct from the time he was a juvenile.” The
court stated it had understood and considered defense counsel’s
argument and materials, but determined “there’s a substantial
likelihood” the dismissal of the enhancements would result in
physical injury or serious danger to others, “based upon
[Rhodes’s] criminal history and based on the reprehensible
conduct in this case.”
On this record, the trial court’s refusal to dismiss the
section 667(a) enhancements was not arbitrary or irrational. (See
Mendoza, supra, 88 Cal.App.5th at p. 299 [refusal to dismiss on
safety grounds was reasonable where court considered “the
circumstances of the crime and [determined] a long sentence was
necessary” for rehabilitation]; see also Shaw, supra,
56 Cal.App.5th at p. 588 [refusal to dismiss on safety grounds
was reasonable, based in part upon the defendant’s extensive
criminal record].)
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B. Rhodes Forfeited His Argument Regarding
Future Dangerousness
Rhodes also argues that because he would still have many
years to serve even if the section 667(a) enhancements were
dismissed, the trial court should have considered the danger
posed to public safety by his release at some future date. The
argument is premised upon an opinion issued by our colleagues
in the Fourth District about six months before he filed his
resentencing motion and more than a year before the hearing.
(See People v. Gonzalez (2024) 103 Cal.App.5th 215, 230.)
Rhodes forfeited this argument by raising it for the first
time on appeal. (See Gonzalez, supra, 107 Cal.App.5th at p. 326;
see also People v. Scott (1994) 9 Cal.4th 331, 356.) In the trial
court, Rhodes never cited People v. Gonzalez, supra, 103
Cal.App.5th 215. (Cf. id. at pp. 225–226 [the defendant preserved
the argument by citing the same authorities and consistently
arguing the dangerousness inquiry was forward-looking from the
release date].) Moreover, when the court asked his counsel to
address the “ ‘endangering public safety exception,’ ” counsel’s
focus was upon showing Rhodes’s circumstances had already
changed “so that he would not be a danger to the community
should he be released.” Counsel neither suggested Rhodes’s
dangerousness would diminish over time nor asked the court to
consider his dangerousness in the future. Rhodes cannot now
complain “the trial court erred in failing to conduct an analysis it
was not asked to conduct.” (People v. Fruits (2016) 247
Cal.App.4th 188, 208.)
Rhodes argues he preserved the argument by making “clear
. . . that he was not seeking immediate release” but instead “a
shorter remaining prison sentence that would have afforded him
more opportunity to continue benefitting from prison
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programming and growth.” That is belied by the evidence Rhodes
submitted in support of his motion, which portrayed Rhodes as
having already “engaged in substantial rehabilitative efforts” in
prison and which anticipated a near-term release.
Rhodes also points out his motion mentioned that even if
the trial court dismissed all the enhancements, he “would still be
sentenced to 28 years in state prison and would not be eligible for
parole for many years.” That isolated statement was made in the
context of analyzing one of the section 1385, subdivision (c)
mitigating factors, which are relevant only if the court has
already determined dismissal would not endanger public safety.
(See Mendoza, supra, 88 Cal.App.5th at p. 297 & fn. 6; see also
§ 1385, subd. (c)(2)(C).) Rhodes did not present the argument he
now makes about future dangerousness to the trial court.
II. The Trial Court Properly Reimposed the Upper Term
Sentence
Rhodes argues the trial court erred in reimposing the upper
term on count 1 because it did not find aggravating
circumstances in accordance with section 1170, subdivision (b)(2).
He claims that violated the Sixth Amendment to the United
States Constitution. (See People v. Lynch (2024) 16 Cal.5th 730,
768 (Lynch); see also § 1172.75, subd. (d)(2).) The People argue
section 1172.75, subdivision (d)(4) authorized the court to
reimpose the upper term, notwithstanding section 1170, because
the upper term had previously been imposed at the 2014
sentencing. (See § 1172.75, subd. (d)(4).) We agree with the
People.
The majority of our fellow Courts of Appeal have
interpreted section 1172.75, subdivision (d)(4) to create “an
exemption . . . permitting resentencing courts to reimpose the
original upper term sentence[] without a stipulation or a jury
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finding of aggravating circumstances,” so that “the factfinding
requirements . . . ‘apply only if the . . . court is imposing the
upper term for the first time at . . . resentencing.’ ” (People v. Lua
(2026) 121 Cal.App.5th 472, 478, review granted Sept. 16, 2026,
S297581 (Lua); see Brannon-Thompson, supra, 104 Cal.App.5th
at pp. 466–467 [same]; People v. Dozier (2025) 116 Cal.App.5th
700, 715 [same], review granted Feb. 11, 2026, S294597 (Dozier);
Mathis, supra, 111 Cal.App.5th at pp. 371–374 [same], review
granted.)
Rhodes instead urges us to follow Gonzalez, supra,
107 Cal.App.5th at page 330, in which the Sixth District
concluded a trial court could not reimpose an upper term at
resentencing unless “aggravating factors [are] stipulated to by
the defendant or proven beyond a reasonable doubt to the trier of
fact.” Our Supreme Court has granted review to resolve this split
of authority. (See Dozier, supra, 116 Cal.App.5th at p. 714, fn. 13,
review granted; see also People v. Eaton (Mar. 14, 2025, C096853)
[nonpub. opn.], review granted May 14, 2025, S289903.)
While we await our Supreme Court’s guidance, we agree
with the majority of our fellow Courts of Appeal. Gonzalez itself
recognized the majority’s interpretation of section 1172.75,
subdivision (d)(4) was reasonable but decided it might run afoul
of the Sixth Amendment. (Gonzalez, supra, 107 Cal.App.5th at
pp. 329–330; see also Lynch, supra, 16 Cal.5th at pp. 759–760,
768.) Rhodes argues we must follow Gonzalez to avoid a Sixth
Amendment violation. According to Rhodes, because
Cunningham stated the Sixth Amendment requires “any fact
that exposes a defendant to a greater potential sentence must be
found by a jury . . . beyond a reasonable doubt” (Cunningham v.
California (2007) 549 U.S. 270, 280 (Cunningham)), section
1172.75, subdivision (d)(4) cannot create an exception to the
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factfinding requirements of section 1170, subdivision (b). We
disagree and perceive no Sixth Amendment concern.
Cunningham held that California had two alternatives to
bring its triad sentencing system (comprising lower, middle, and
upper terms) into compliance with the Sixth Amendment: either
“require a jury finding of aggravating facts beyond a reasonable
doubt or . . . allow judges to exercise broad discretion within a
statutory range.” (Lua, supra, 121 Cal.App.5th at p. 479, review
granted; see also Cunningham, supra, 549 U.S. at pp. 293–294.)
In response, in 2007, our Legislature chose the second alternative
“and amended section 1170, [former] subdivision (b), to provide
trial courts ‘broad discretion’ to impose any term within the triad
based on interests of justice.” (Lua, at p. 479; see also Lynch,
supra, 16 Cal.5th at pp. 747–748.) That is the sentencing system
under which Rhodes was originally sentenced in 2014, and there
is no dispute that sentence complied with the Sixth Amendment.
(See Lua, at p. 479.)
In 2022, our Legislature changed course and decided to
enact the first alternative described in Cunningham—i.e., the
current version of section 1170. (Lynch, supra, 16 Cal.5th at
p. 748.) That statute also complies with the Sixth Amendment.
(Lynch, at p. 748; see also Cunningham, supra, 549 U.S. at
pp. 293–294.)
It does not violate the Sixth Amendment for the Legislature
to foreclose defendants like Rhodes—who seek resentencing after
being validly sentenced to an upper term—from certain
ameliorative benefits of section 1170, subdivision (b). (See
Mathis, supra, 111 Cal.App.5th at pp. 373–374, review granted;
see also § 1172.75, subd. (d)(4); People v. Padilla (2022)
13 Cal.5th 152, 162 [the Legislature may “disclaim the
application of a new ameliorative law to proceedings that occur
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after a defendant’s . . . sentence has been vacated”].) Because the
Sixth Amendment is not implicated here, it is unnecessary to
invoke the doctrine of constitutional avoidance. (Cf. Gonzalez,
supra, 107 Cal.App.5th at p. 330 [invoking doctrine of
constitutional avoidance].)
Finally, People v. Wiley (2025) 17 Cal.5th 1069, 1086, does
not support Rhodes’s position. Wiley specifies what findings can
be made by a judge, instead of a jury, at sentencing pursuant to
section 1170, subdivision (b). (See Wiley, at pp. 1077–1079.) But
the proceeding at issue here is a section 1172.75 resentencing,
and the trial court did not find any facts pertaining to the upper
term sentence. Wiley does not apply.
III. The Trial Court Shall Correct the Abstract of
Judgment
Section 1 of the abstract of judgment incorrectly states
Rhodes was convicted on count “04,” rather than count “03.” We
order the trial court to correct that clerical error. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185, 188.)
DISPOSITION
The order is affirmed. The trial court is ordered to correct
the abstract of judgment to reflect that Rhodes was convicted of
committing a lewd act upon a child in count 3. The court is
further ordered to send a certified copy of the amended abstract
to the Department of Corrections and Rehabilitation.
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J. GOORVITCH, J.
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