People v. Thomas CA2/6

Filed 9/17/24 P. v. Thomas CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

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