People v. Thomas CA2/6 ( 2024 )

Filed 9/30/24 P. v. Thomas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B333824
(Super. Ct. No. BA223762)
Plaintiff and Appellant, (Los Angeles County)
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
MELVIN JAMES THOMAS,
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on September 17,
2024, be modified as follows:
On page 2, the last sentence in the first full paragraph
(“Joseph died from a bullet wound on the left side of his chest”) is
deleted.
There is no change in the judgment.
GILBERT, P. J. YEGAN, J. CODY, J.
Filed 9/17/24 P. v. Thomas CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B333824
(Super. Ct. No. BA223762)
Plaintiff and Appellant, (Los Angeles County)
v.
MELVIN JAMES THOMAS,
Defendant and Respondent.
Melvin James Thomas appeals a judgment following his
resentencing pursuant to Penal Code section 1172.75.1 Thomas
was represented by counsel during the resentencing hearing, but
was not personally present and did not waive his right to be
present. We reverse the judgment and remand for a new
resentencing hearing.
FACTUAL AND PROCEDURAL HISTORY
In 2003, Thomas was convicted of attempted first degree
murder (count 1) and assault with a firearm (count 2), with
1 All statutory references are to the Penal Code.
findings of personal firearm use, personal infliction of great
bodily injury, a serious felony and strike conviction, and service
of four prior prison terms. (§§ 664, 187, subd. (a), 245, subd.
(a)(2), 12022.53, subds. (b)-(d), 12022.7, subd. (b), 667, subd. (a),
667, subds. (b)-(d), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
On September 15, 2001, Thomas and George Joseph argued
in a parking lot near Hollywood High School. Thomas entered
his vehicle, and Joseph, who was intoxicated, threw a liquor
bottle at the windshield of Thomas’s vehicle. Joseph then circled
Thomas’s vehicle. Thomas obtained a firearm from under the
seat and fired at Joseph from a close range. Joseph ran and
Thomas pursued, firing the weapon three or four more times.
Joseph died from a bullet wound on the left side of his chest.
The jury convicted Thomas of attempted first degree
murder and assault with a firearm. Allegations of firearm use,
infliction of great bodily injury, a prior felony and strike
conviction, and service of prior prison terms were found true. On
March 19, 2003, the trial court sentenced Thomas to life
imprisonment plus 37 years, imposed restitution fines, and
awarded Thomas 589 days of presentence custody credit. Two
years of the 37-year-term sentence reflected service of two prior
prison terms pursuant to then section 667.5, subdivision (b); the
court struck the remaining two prison term findings. Thomas
appealed and we affirmed the judgment in People v. Thomas
(June 14, 2004, B166025) [nonpub. opn.].
Section 1172.75 Resentencing
In 2023, Thomas filed a petition requesting the trial court
to strike the prior prison term findings and resentence him
pursuant to section 1172.75. On August 9, 2023, the court held a
resentencing hearing. Thomas was represented by counsel but
2
did not personally appear or waive his appearance. Thomas’s
counsel stated that he had been unable to locate Thomas because
Thomas was “not in custody” and was “not showing [up] on the
prison list, and so we haven’t been able to locate him.” The judge
remarked, “So he’s been released. . . . Ostensibly anyway.”
Thomas’s counsel then requested the trial court to “strike
the priors and then take [the matter] off calendar” but if Thomas
is located, the court could place the matter on calendar again.
The court noted that it was necessary that Thomas be present to
modify the sentence, but it would order the reduction of Thomas’s
sentence by two years given counsel’s request.
Thomas appeals and contends that the trial court
prejudicially erred by holding a resentencing hearing in his
absence. The Attorney General concedes that Thomas did not
knowingly waive his appearance and his absence is not harmless
beyond a reasonable doubt.
DISCUSSION
Section 1172.75, subdivision (a) provides that any prior
prison term enhancement imposed prior to January 1, 2020,
pursuant to section 667.5, subdivision (b), except that imposed for
a prior conviction for a sexually violent offense, is legally invalid.
Section 1172.75, subdivision (c) requires the trial court to recall
an applicable sentence and resentence the defendant.
Section 1172.75, subdivision (d)(1) requires the trial court
to impose “a lesser sentence than the one originally imposed . . .
unless the court finds by clear and convincing evidence that
imposing a lesser sentence would endanger public safety.” At
resentencing, the court “shall apply the sentencing rules of the
Judicial Council and apply any other changes in law that reduce
sentences or provide for judicial discretion so as to eliminate
3
disparity of sentences and to promote uniformity of sentencing.”
(Id., subd. (d)(2).) The court may also consider postconviction
factors, including the defendant’s disciplinary record, his
rehabilitation, and his age and physical condition affecting any
risk for future violence, among other factors. (Id., subd. (d)(3).)
A criminal defendant’s right to be personally present at
trial is guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution, as well as article I, section 15 of
the California Constitution, and sections 977 and 1043. (People
v. Concepcion (2008) 45 Cal.4th 77, 81.) The right extends to all
critical stages of the criminal prosecution, including sentencing
and resentencing. (People v. Rodriguez (1998) 17 Cal.4th 253,
260, superseded by statute as stated in People v. Luna (2003) 113
Cal.App.4th 395, 397; People v. Cutting (2019) 42 Cal.App.5th
344, 348 [resentencing is a critical stage because the trial court
may reconsider the entire sentence].) The right to be present
applies to resentencing hearings held pursuant to section
1172.75. (People v. Velasco (2023) 97 Cal.App.5th 663, 673.)
Counsel may waive defendant’s presence if there is evidence that
defendant understood the right he was waiving and the
consequences of doing so. (People v. Davis (2005) 36 Cal.4th 510,
532 [“At a minimum, there must be some evidence that the
defendant understood the right he was waiving and the
consequences of doing so”].)
Here counsel stated that he had been unable to locate
defendant.2 There is no evidence that Thomas knowingly waived
his right to be present. Given the nature and scope of
resentencing pursuant to section 1172.75, Thomas could have
2 The notice of appeal signed August 30, 2023, by Thomas
states that he is an inmate at Corcoran State Prison.
4
offered favorable testimony on postconviction factors. (§ 1172.75,
subd. (d)(3); People v. Velasco, supra, 97 Cal.App.5th 663, 674.)
The error is not harmless beyond a reasonable doubt. (Velasco, at
p. 674.)
DISPOSITION
The judgment is reversed and the matter is remanded to
the trial court for a new resentencing hearing.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
CODY, J.
5
Craig E. Veals, Judge
Superior Court County of Los Angeles
______________________________
James M. Crawford, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.