Opinion
F087222
11-05-2024
THE PEOPLE, Plaintiff and Respondent, v. DANIEL AARON RHOADS, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF174783A John S. Somers, Judge.
Retired judge of the Kern Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Daniel Aaron Rhoads (defendant) is currently serving a prison sentence with a life term for a gun enhancement. Defendant's case has twice been remanded for resentencing, and the trial court has consistently refused to strike or dismiss the enhancement. This appeal is taken from a judgment entered on remand.
Defendant's appellate counsel makes no claims of error and requests our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Defendant has filed a supplemental brief asserting two claims. The first claim pertains to matters far outside the scope of the resentencing proceedings. The second claim alleges an abuse of the trial court's sentencing discretion, but it does not present a reasonably arguable issue. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant's counsel requests we take judicial notice of the opinion in People v. Rhoads (July 18, 2023, F084749) (nonpub. opn.) (Rhoads II). The request is hereby granted. On our own motion, we also take judicial notice of People v. Rhoads (Feb. 23, 2022, F079979) (nonpub. opn.) (Rhoads I) and the appellate record in Rhoads I. (Evid. Code, §§ 452, subd. (d), 459; see, e.g., Rel v. Pacific Bell Mobile Services (2019) 33 Cal.App.5th 882, 886.) We incorporate by reference the factual and procedural background set forth in Rhoads I and Rhoads II.
To briefly summarize, defendant was prosecuted for killing a man named William Alford. Defendant took responsibility for Alford's death but claimed to have acted in self-defense. When questioned by the police, he admitted to firing a single bullet into Alford's chest. Upon being shot, Alford reportedly said, "'I'm sorry. Call an ambulance.'" Defendant admitted he did not seek aid, but he also claimed Alford had died within a matter of seconds.
The shooting occurred inside of defendant's home. He admitted to leaving the corpse on his kitchen floor for approximately three hours before deciding to "bag[] him" and "put him in the trash." Defendant told police that he wrapped the body in a tarp "like a [human] burrito," loaded it into a pickup truck, and disposed of it in a garbage bin somewhere "along the side of the road." When a detective commented on his treatment of Alford's remains, defendant said, "I feel like he's a piece of trash." The body was never found.
Defendant was charged with one count of willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a)). For enhancement purposes, he was alleged to have killed Alford by personal and intentional discharge of a firearm (§ 12022.53, subd. (d)). The case went to trial in April 2019. The jury acquitted defendant of first degree murder but found him guilty of second degree murder. A true finding was made on the firearm allegation.
All undesignated statutory references are to the Penal Code.
Defendant's trial counsel moved to strike/dismiss the firearm enhancement in the interests of justice. (See §§ 1385, 12022.53, subd. (h).) The People opposed the request. The motion hearing and original sentencing both took place in September 2019. The trial court denied the motion, citing the "very callous" manner "in which [a firearm] was used in this particular case." The trial court also found defendant had "engaged in violent conduct indicating he is a danger to society." Defendant was sentenced to 15 years to life on the murder count and received a consecutive term of 25 years to life for the enhancement.
In Rhoads I, defendant made a claim based on the trial court's failure to consider the imposition of "a lesser enhancement" instead of making the all-or-nothing choice between striking the enhancement or imposing punishment under section 12022.53, subdivision (d). While the appeal was pending, a split of authority on that issue was resolved in defendant's favor. (See People v. Tirado (2022) 12 Cal.5th 688, 697.) This court vacated defendant's sentence and ordered a new sentencing hearing.
The first resentencing hearing was conducted in July 2022. The trial court reimposed its original sentence, again citing "the callousness" defendant had "exhibited towards the victim and towards [the victim's] life." In Rhoads II, defendant asserted a claim based on Senate Bill No. 81 (2021-2022 Reg. Sess.) (Senate Bill 81), which made amendments to section 1385 effective January 1, 2022. (Stats. 2021, ch. 721, § 1.) This court agreed with defendant's arguments for a limited remand. The disposition of Rhoads II states, "The judgment is affirmed but the sentence is vacated and the cause is remanded for a new sentencing hearing. On remand, the trial court shall consider all applicable sentencing laws."
The second resentencing hearing was conducted on November 9, 2023. Following arguments by the parties, the trial court acknowledged its discretion "to impose a lesser firearm enhancement" under section 12022.53, subdivision (b) or (c), or even section 12022.5. At the time there was a split of authority on the ability to impose punishment under section 12022.5, but the trial court's understanding of the law was in fact correct. (See People v. McDavid (2024) 15 Cal.5th 1015, 1021 [holding the "statutory framework permits a court, after striking a section 12022.53 enhancement, to impose a lesser included, uncharged enhancement authorized elsewhere in the Penal Code"].)
The trial court also referenced Senate Bill 81 and noted that imposing punishment for a gun enhancement could result in "a sentence of greater than 20 years," thereby indicating its knowledge and understanding of section 1385, subdivision (c)(2)(C). (See further discussion, post.) The court ultimately declined to strike the gun enhancement, stating "[t]here is a public safety risk which justifies that." The following explanation was provided:
"Under the circumstances, when I look at the circumstances of this case, which involved an intentional killing, from the Court's perspective, based on my understanding of the evidence at trial as well as the intentional and calculated use of the firearm and setting in which it was done-and I do look at the fact that [defendant] does have some criminal history of involvement with firearms, albeit not any felony convictions-under the circumstances, it does appear to the Court that [defendant] presents a public safety risk.
"I can, quite frankly, envision him reacting similarly in a similar situation to that he faced at the time of the original case, and I don't see anything either situational or unusual in the situation that would lead the Court to believe that there is not a risk of repetition or similar conduct in a similar type situation."
The trial court reimposed the mandatory term of 15 years to life for second degree murder and, pursuant to section 12022.53, subdivision (d), a consecutive term of 25 years to life. Defendant filed a timely notice of appeal and requested the appointment of counsel, which was granted.
In April 2024, defendant's appointed counsel filed an opening brief pursuant to Wende, supra, 25 Cal.3d 436, requesting independent review of the appellate record for arguable issues. Counsel attested to having given the required notice to defendant by providing him with a copy of the Wende brief and informing defendant he had 30 days to submit his own supplemental brief. (See People v. Kelly (2006) 40 Cal.4th 106, 124.) On or about April 26, 2024, this court provided separate notice to defendant of his right to file a supplemental brief. Defendant chose to exercise that right, and he was granted extensions of time to do so. His supplemental brief was received and filed in August 2024.
Defendant's supplemental brief asserts two distinct claims, the first of which concerns the previous denial of his motion for new trial-a ruling made in 2019, prior to the Rhoads I appeal. He alleges "ineffective assistance of both trial and appellate counsel, prosecutorial misconduct, abuse of discretion by the trial court and jury misconduct." The relief sought is the appointment of "new counsel who will thoroughly review the record and challenge the conviction."
In his second claim, defendant argues that the trial court's sentencing choice was "irrational, unreasonable, and unsupported by any fact or evidence." However, defendant's argument is largely based on his own version of the events surrounding the homicide. For example, he alleges "[t]he decedent was the initiator and aggressor, was believed by [defendant] to be under the influence of methamphetamine, was trespassing, refused to leave, and was acting in a menacingly aggressive fashion." The jury made no such findings, and the murder conviction implies a rejection of the self-defense narrative.
The trial court's statements during the most recent sentencing hearing clearly show its agreement with the jury's verdict. In the court's view, defendant's use of a firearm "was unnecessary." Although the killing was not found to be premeditated, there "was nothing that was spur of the moment about the use of the firearm itself or the weapon chosen." The court also said, "He had his reasons for doing so . . ., [but] those reasons are not legal justification nor mitigation for the use of the firearm."
DISCUSSION
"[T]he constitutional right to assistance of counsel entitles an indigent defendant to independent review by the Court of Appeal when counsel is unable to identify any arguable issue on appeal. California's procedure for securing this right requires counsel to file a brief summarizing the proceedings and the facts with citations to the record, and requires the appellate court to review the entire record to determine whether there is any arguable issue." (People v. Kelly, supra, 40 Cal.4th at p. 119.) An "arguable issue" is one having reasonable potential for success and, if successful, would result in a reversal or modification of the judgment. (People v. Johnson (1981) 123 Cal.App.3d 106, 109; see People v. Garcia (2018) 24 Cal.App.5th 314, 325 [describing an arguable issue "as one that is not frivolous"].)
Defendant's first claim, which concerns the murder trial and prior appellate proceedings, does not present any arguable issues. "In an appeal following a limited remand, the scope of the issues before the court is determined by the remand order." (People v. Murphy (2001) 88 Cal.App.4th 392, 396-397.) As such, "a direct attack upon a conviction in a second appeal after a limited remand for resentencing or other posttrial procedures" is generally prohibited. (People v. Senior (1995) 33 Cal.App.4th 531, 535.)
Defendant's allegations of juror and prosecutorial misconduct were addressed at length in the September 2019 hearing on his motion for a new trial. Those issues could have been raised, but were not, in the Rhoads I appeal. Defendant's related allegations of ineffective assistance by his appellate counsel are similarly misplaced. "[W]here a claim was available on direct appeal, but not raised due to ineffective assistance of appellate counsel, such a claim is 'cognizable in a postappeal habeas corpus petition under the ineffective counsel rubric.'" (In re Hampton (2020) 48 Cal.App.5th 463, 474, quoting In re Harris (1993) 5 Cal.4th 813, 834.)
Defendant's second claim is within the available scope of review. He attempts to challenge the trial court's imposition of punishment for a charged and proven firearm enhancement. "We review the trial court's decision not to dismiss a firearm enhancement for an abuse of discretion." (People v. Parra Martinez (2022) 78 Cal.App.5th 317, 322.) "The abuse of discretion standard is highly deferential." (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) "That deferential standard asks not whether the trial court's decision was correct in the sense that it is the same decision we would have made; rather, it asks whether the court's decision falls within the range of outcomes permitted by the controlling law." (People v. Bernal (2019) 42 Cal.App.5th 1160, 1170.) A discretionary sentencing choice will be upheld "so long as there is a reasonable or even fairly debatable justification" for it. (People v. Parra Martinez, supra, 78 Cal.App.5th at p. 322.)
Section 1385 encourages the dismissal of enhancements when certain "mitigating circumstances" are shown to exist. (Id., subd. (c)(2).) Sentencing courts must "consider and afford great weight" to the specified circumstances, meaning "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." (Ibid.; see People v. Walker (2024) 16 Cal.5th 1024, 1033 [holding the statutory language "does not erect a rebuttable presumption in favor of dismissal"].) One such circumstance, which the trial court recognized as being applicable in this case, is where imposing an enhancement "could result in a sentence of over 20 years." (§ 1385, subd. (c)(2)(C).) However, the trial court also made a disqualifying public safety finding.
Under section 1385, the dismissal of an enhancement will "endanger public safety" if there is "a likelihood that the dismissal .. would result in physical injury or other serious danger to others." (Id., subd. (c)(2).) "Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal of the enhancement will impact the length of the defendant's sentence." (People v. Gonzalez (2024) 103 Cal.App.5th 215, 228.) In other words, the public safety inquiry requires a forward-looking analysis. (See ibid.) But the sentencing court may rely upon the circumstances of the current offense. (See, e.g., People v. Mendoza, supra, 88 Cal.App.5th at p. 298.)
Here, the trial court properly considered the issue of future dangerousness. The court relied on the circumstances of the current offense, but it also took into account defendant's "performance while incarcerated . subsequent to his initial sentencing." The fact defendant has "performed fairly well in an institutional setting" was deemed to be "a slightly mitigating factor." Reasonable minds could disagree with the court's sentencing choice, but the record does indicate it performed a "'holistic balancing'" of the relevant factors. (People v. Walker, supra, 16 Cal.5th at p. 1036.) Also, unlike in Rhoads I and Rhoads II, there is nothing to suggest the trial court was unaware of the scope of its discretion.
We are satisfied that no arguable issues exist and defendant's appointed appellate counsel has fully satisfied his responsibilities under Wende.
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Pena, J. and De Santos, J.