When Full Resentencing Not Available, PC § 667.5(b)

In 2016, the Riverside County District Attorney’s Office charged Andrew Christian Rhodius with violation of Penal Code § 29800(a), a felony; Health & Safety Code § 11378, a felony; Health & Safety Code § 11370.1, a felony; and Penal Code § 148(a)(1), a misdemeanor.  The complaint also alleged that two prison priors (Penal Code § 667.5(b)), one prior serious felony conviction (Penal Code § 667(a)) and one strike prior (Penal Code § 667(c), (e), (1) and 1170.12(c)(1)).

Later in 2016, a jury found Mr. Rhodius guilty on all counts except Health & Safety Code § 11378.

In early 2017, in exchange for the prosecution waiving a retrial on this count, Mr. Rhodius entered into a stipulated sentence wherein he pled guilty to violating Health & Safety Code § 11378 and was sentenced to 11 years in state prison.  In this sentence, he admitted both prison priors, his serious felony prior and his strike prior.  Judge John D. Molloy imposed one year on each prison prior, but stayed punishment on each prison prior.

In 2021, Senate Bill No. 483 (affirming Senate Bill No. 136 from 2019) added Penal Code § 1171.1 to the Penal Code.  Penal Code § 1172.75(a) states that “any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense . . . is legally invalid.”  Section 1172.75 instructs the California Department of Corrections and Rehabilitation to identify those inmates in their custody serving a term for a judgment that includes an enhancement under Penal Code § 667.5(b) (excluding sexually violent offenses) and provide such information to the sentencing court that imposed the enhancement.

The CDCR notified the trial court in Riverside County and a hearing to recall and resentence Mr. Rhodius pursuant to Penal Code § 1172.75(a) was held on August 22, 2022.

At the hearing, Judge Molloy vacated the sentence for Mr. Rhodius’ two Penal Code § 667.5(b) priors and ordered them stricken.  Mr. Rhodius argued for a full resentencing hearing going beyond striking just his two prison priors.  He provided documentation detailing positive changes he had made in the time since his conviction.

Judge Molloy reserved ruling, allowing the parties to provide further briefing on the issue of resentencing. 

The People filed an opposition arguing Mr. Rhodius was not entitled to a full resentencing hearing because the plain language of the statute demonstrates relief under Penal Code § 1172.75 is reserved for inmate’s whose sentence was increased by the imposition of the Penal Code § 667.5(b) priors.  The People also argued that even if the language of the statute is ambiguous, the legislative history shows that the intended benefit was only for those defendants who sentence was increased by the enhancements.

A second resentencing hearing took place on October 25, 2022.  Following briefing and argument by both parties, Judge Molly denied Mr. Rhodius’ request for a full resentencing.  In a written ruling, Judge Molloy stated that Mr. Rhodius was not entitled to resentencing because the one-year sentence enhancement related to his two § 667.5(b) priors were imposed and stayed instead of imposed and executed.

Mr. Rhodius then filed an appeal of this ruling with the California Court of Appeal for the Fourth District in Riverside.

The Fourth Appellate District denied the appeal, citing to People v. Gonzalez (2008) 43 Cal. 4th 1118, wherein the California Supreme Court analyzed whether the Penal Code § 12022.5 enhancement must be stricken or if it could be imposed and stayed.  In analyzing “impose,” the state’s highest court concluded the term “must be interpreted as shorthand for ‘impose and execute.’” Id., at 1127.  

Applying this to Penal Code § 1172.75, it then found that § 1172.75 could only apply to sentences that were “imposed and executed.”  Accordingly, because the sentences under 667.5(b) for Mr. Rhodius were stayed, he was not entitled to full resentencing.

We present this short summary to help the reader understand the limitations of Senate Bills 136 and 483, as codified and allowing retroactive resentencing.