People v. Thomas CA2/1 ( 2023 )

Filed 8/31/23 P. v. Thomas CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B324557
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA089835)
v.
WENDELL RAY THOMAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lee W. Tsao, Judge. Affirmed.
Lenore De Vita, under appointment by the Court of Appeal,
for Defendant and Appellant.
No Appearance for Plaintiff and Respondent.
_______________________________
MEMORANDUM OPINION1
Defendant Wendell Ray Thomas appeals the trial court’s
denial of his petition for resentencing pursuant to Penal Code2
section 1172.6 (former § 1170.953). We find no error and affirm.
A. Procedural Background
An amended information, filed on February 15, 2006,
charged Thomas with attempted willful, deliberate, and
premeditated murder in violation of sections 187, subdivision (a)
and 664, and specially alleged he personally discharged a firearm
causing great bodily injury to the victim, in violation of section
12022.53, subdivisions (b) through (d) (count 1). The amended
information also charged Thomas with possession of a firearm by
a felon, in violation of section 12021, subdivision (a)(1) (count 2).
After trial, the jury found Thomas guilty of attempted
murder as charged in count 1 but found not true the special
allegation that he acted willfully, deliberately, and with
premeditation. The jury found true the special allegations that
Thomas personally used a handgun in violation of section
12022.53, subdivision (b) and that Thomas personally and
intentionally discharged a handgun causing great bodily injury to
1 We resolve this case by memorandum opinion because it
“is determined by a controlling statute which is not challenged for
unconstitutionality and does not present any substantial question
of interpretation or application.” (Cal. Stds. Jud. Amin., § 8.1(1).)
2 All unspecified statutory references are to the Penal Code.
3 The Legislature renumbered the statute as section
1172.6, with no change in text, effective June 30, 2022 (Stats.
2022, ch. 58, § 10). For ease of reference, we use the current
citation at section 1172.6 throughout this opinion.
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the victim within the meaning of section 12022.53, subdivisions
(c) and (d), in connection with the attempted murder. The jury
also found Thomas guilty on count 2. The trial court sentenced
Thomas to the aggregate prison term of 34 years to life. Thomas
appealed, and we affirmed the judgment of conviction. (People v.
Thomas (May 11, 2009, B205449) [nonpub. opn.].)
On March 8, 2022, Thomas filed a petition for resentencing
under section 1172.6 and requested appointment of counsel. The
trial court appointed counsel for Thomas. After further briefing
from both parties, and without holding an evidentiary hearing,
the trial court concluded that Thomas was ineligible for relief as
a matter of law because the record of conviction showed that he
was the actual shooter and had a specific intent to kill.
Thomas then appealed. We appointed counsel to represent
Thomas, and his appellate counsel filed a brief raising no issues
and requesting that we exercise our discretion to independently
review the record for error pursuant to People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo). In Delgadillo, our Supreme Court
established procedures for cases in which counsel determines
that an appeal from an order denying postconviction relief lacks
merit. In such cases, “(1) counsel should file a brief informing the
court of that determination, including a concise recitation of the
facts bearing on the denial of the petition; and (2) the court
should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed
within 30 days, the court may dismiss the matter.” (Id. at
pp. 231-232.) If the defendant does not file a supplemental brief,
we “may dismiss the appeal as abandoned.” (Id. at p. 232.) In
that instance, we do “not need to write an opinion but should
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notify the defendant when [we] dismiss[ ] the matter.” (Ibid.)
Because a defendant who has been denied postconviction relief
has no constitutional right to an appeal, we are not required to
conduct an independent review of the record before dismissing
the appeal, but we may conduct such a review at our discretion.
(Id. at pp. 227-228, 232.)
If the defendant does file a supplemental brief or letter, we
are “required to evaluate the specific arguments presented in
that brief and to issue a written opinion. The filing of a
supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.”
(Delgadillo, supra, 14 Cal.5th at p. 232.)
On June 21, 2023, we notified Thomas by letter of the no-
merits brief filed by his counsel and informed him that he had 30
days to file a supplemental brief.4 We received Thomas’s
supplemental brief on August 10, 2023.
B. Thomas Is Ineligible for Relief Under Section 1172.6
Section 1172.6 was enacted by the Legislature in 2018 as
part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The
legislation’s overall purpose was “to amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill
4 In a declaration submitted with her brief, Thomas’s
counsel averred that she sent Thomas a copy of counsel’s brief
along with a copy of the entire record on appeal.
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added section 189, subdivision (e) “to amend the felony-murder
rule,” and added section 188, subdivision (a)(3) “to amend the
natural and probable consequences doctrine.” (People v. Gentile
(2020) 10 Cal.5th 830, 842-843.) Senate Bill No. 775 (2021-2022
Reg. Sess.) later expanded section 1172.6 to allow persons
convicted of attempted murder under the natural and probable
consequences doctrine to apply for resentencing. (Stats. 2021,
ch. 551, § 2.)
“[A]ttempted murder requires a specific intent to kill.”
(People v. Mumin (2023) ___ Cal.5th ___ [2023 WL 5282427 at
p. *3].) Formerly, such malice could be implied in an attempted
murder prosecution “ ‘ “when a person willfully does an act, the
natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious
disregard for the danger to life that the act poses.” ’ [Citation.]
[¶] . . . The natural and probable consequences doctrine provides
that ‘ “[a] person who knowingly aids and abets criminal conduct
is guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget
offense] that is a natural and probable consequence of the
intended crime.” ’ [Citation.]” (People v. Offley (2020) 48
Cal.App.5th 588, 595.) Now, however, because of Senate Bill
No. 775, implying malice via the natural and probable
consequences doctrine can no longer support an attempted
murder conviction.
As relevant here, section 1172.6 provides a mechanism for
a defendant to seek resentencing where (1) an information was
filed against the defendant that allowed an attempted murder
prosecution to proceed under the natural and probable
consequences doctrine, and (2) the defendant could not now be
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convicted of attempted murder under the present law. (§ 1172.6,
subd. (a).) Thomas does not meet this eligibility test, because he
was not prosecuted based on the natural and probable
consequences doctrine. Instead, Thomas’s attempted murder
prosecution and resulting conviction were based solely on him
being the actual shooter. The jury was not instructed on the
natural and probable consequences doctrine, aiding or abetting,
or any other theory under which malice would be implied. Thus,
in convicting Thomas of attempted murder and finding true the
allegation that he personally and intentionally shot the victim,
the jury had to and did find Thomas was the actual shooter and
that he harbored the specific intent to kill.
We therefore disagree with Thomas that he is eligible for
resentencing under section 1172.6 and hold that the trial court
did not err in summarily denying the resentencing petition.
(Delgadillo, supra, 14 Cal.5th at p. 233 [a defendant is not
entitled to relief, and a resentencing petition is properly denied at
the prima facie stage, where the record of conviction makes
ineligibility for relief clear].) As the sole and actual perpetrator
of the attempted murder, Thomas is ineligible for resentencing as
a matter of law. (People v. Patton (2023) 89 Cal.App.5th 649,
656-657, review granted June 28, 2023, S279670.)
Thomas’s supplemental brief further argues the trial court
erred in relying on the opinion from his direct appeal in assessing
his eligibility for relief at the prima facie stage. Section 1172.6,
subdivision (d)(3) limits the use of prior appellate opinions in
resentencing proceedings such as the one here to “the procedural
history of the case recited.” The record is unclear for what
purpose(s) the court considered the prior appellate opinion. The
court’s tentative opinion does not cite or reference the prior
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appellate opinion but does include some background facts that
the court may have pulled from it. At the hearing, the court
acknowledged the strictures of section 1172.6, subdivision (d)(3)
but stated its view that that subdivision “applies during an
evidentiary hearing.” The court then noted that it had
considered the appellate opinion at the prima facie stage as part
of the record of conviction, but that it was doing so “without
making any findings of fact or weigh [sic] the evidence, and [it]
believe[d it] can consider the factual history as set forth in the
Court of Appeals decision without doing so.” One could read that
statement, as Thomas does, suggesting that at the prima facie
stage the court went beyond the procedural history in the
opinion; given its surrounding context, one can also read the
reference to “factual history” as an inartful statement referring to
the procedural history.
Assuming for the sake of argument that the trial court
considered the prior appellate opinion for an improper purpose at
the prima facie stage, any error was harmless. The trial court
correctly noted that the charging document (including the special
allegations), the jury instructions, and the jury’s verdict showed
the People did not argue, nor was the jury instructed on, aiding
and abetting or the natural and probable consequences doctrine.
There was only one alleged shooter, namely Thomas, and the jury
found Thomas acted with the specific intent to kill when he shot
the victim. Because Thomas was not entitled to relief as a matter
of law regardless of whether the court improperly considered the
prior appellate opinion, any error in considering that opinion was
immaterial to the outcome here and does not require reversal.
(See People v. Owens (2022) 78 Cal.App.5th 1015, 1027.)
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Finally, we decline counsel’s request that we independently
review the record, as nothing before us suggests such an exercise
is necessary. (Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The trial court’s order denying Thomas’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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