People v. Thomas CA2/6

Filed 1/21/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B312070
(Super. Ct. No. BA367820)
Plaintiff and Respondent, (Los Angeles County)
v.
CLYDE DUPREE THOMAS,
Defendant and Appellant.
Clyde Dupree Thomas (“appellant”) appeals from the trial
court’s order denying his petition for resentencing pursuant to
1
Penal Code section 1170.95 for his conviction of attempted
murder. The trial court denied his petition without appointing
counsel after concluding that persons convicted of attempted
murder are ineligible for relief under section 1170.95. We reverse
and remand with instructions.
1 All further statutory references are to the Penal Code.
On January 18, 2011, appellant pleaded no contest to
attempted murder. (§§ 187, subd. (a), 664.) He also admitted a
firearm enhancement and prior strike conviction. (§§ 12022.5,
subd. (a), 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Appellant
was sentenced to a determinate prison term of 13 years and eight
months. On appeal, this court affirmed the judgment. (People v.
Thomas (Nov. 1, 2011, B232528) [nonpub. opn.].)
On January 28, 2021, appellant filed a petition for
resentencing pursuant to section 1170.95 claiming he was
convicted of attempted murder under the natural and probable
consequences doctrine. The trial court denied his petition
because appellant “was convicted of attempted murder which
makes him ineligible for resentencing.” During the pendency of
this appeal, the Governor approved Senate Bill No. 775 (2021-
2022 Reg. Sess.) (SB 775). (Stats. 2021, ch. 551, § 2.) This
legislation, which took effect on January 1, 2022, amends section
1170.95 to permit certain persons convicted of attempted murder
to seek relief.
We requested supplemental briefing to address SB 775’s
effect, if any, on appellant’s pending appeal. Both parties agreed
the matter should be remanded to permit the trial court to
appoint counsel for appellant and conduct further proceedings
under the newly amended section 1170.95. We agree.
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437), which “amend[ed] the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder.”
(Stats. 2018, ch. 1015, § 1, subd. (f); §§ 188, 189; People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis).) Section 1170.95 was enacted
as part of SB 1437 “to provide a procedure for those convicted of
2
felony murder or murder under the natural and probable
consequences doctrine to seek relief.” (People v. Gentile (2020) 10
Cal.5th 830, 843; Lewis, at p. 959.)
On October 5, 2021, the Governor approved SB 775,
effective January 1, 2022. (Stats. 2021, ch. 551, § 2.) The new
legislation amends subdivision (a) of section 1170.95 to read, in
pertinent part: “[a] person convicted of . . . attempted murder
under the natural and probable consequences doctrine . . . may
file a petition with the court that sentenced the petitioner to have
the petitioner’s . . . attempted murder . . . conviction vacated and
to be resentenced on any remaining counts . . . .” (Stats. 2021, ch.
551, § 2.)
Respondent concedes that pursuant to the amended section
1170.95, appellant “may be able to establish a prima facie
showing of eligibility” because the record of conviction is limited.
(See Lewis, supra, 11 Cal.5th at pp. 970-972 [where the record of
conviction does not refute the claims of eligibility in the section
1170.95 petition, petitioner has made a prima facie showing for
relief].) We express no opinion on whether the trial court should
grant relief.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed and remanded with instructions to appoint counsel for
appellant and to proceed consistent with the pertinent provisions
of section 1170.95. It is also ordered that the matter be assigned
to the original sentencing court, if available.
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NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
4
Ray G. Jurado, Judge
Superior Court County of Los Angeles
______________________________
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Daniel C. Chang and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.