People v. Thomas CA1/4

Filed 9/26/24 P. v. Thomas CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A169763 v. (Contra Costa County Super. Ct. WILLARD EUGENE THOMAS, No. 05000318592) Defendant and Appellant.

Willard Eugene Thomas appeals from the superior court’s denial of his motion to recall his sentence and resentence him under Penal Code section 1172.751. The court partially granted and partially denied his motion, and Thomas appealed. Thomas’s appointed appellate counsel has filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) in which he finds no arguable appellate issues and requests that we exercise our discretion to conduct an independent review of the record. Thomas has submitted a letter in which he raises multiple issues. Although we decline to conduct an independent review, we address the issues Thomas raises and affirm.

1 Undesignated statutory citations are to the Penal Code.

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I. BACKGROUND A. Thomas’s 1999 Offenses and 2005 Sentencing In 2004, Thomas was convicted of multiple offenses, and the judgment entered against him was affirmed on appeal in People v. Thomas (Oct. 17, 2008, A110427) [nonpub. opn.]. As recounted in that unpublished opinion, early in the morning of September 17, 1999, Thomas confronted a woman walking on the street in Richmond, California and pushed against her side what she believed was a knife. He walked her to some bushes and pushed her into them, made her remove a pant leg and unfastened her bra, put his hand on her breast, and got on top of her. He then tried two or three times to penetrate her but was unsuccessful. He made her put his penis in her mouth and had sexual intercourse with her, ejaculating inside her. He then got up, grabbed her purse, and left. Subsequently, a vaginal swab was taken from the woman. DNA testing of sperm found on the swab ultimately led investigators to Thomas. Thomas was charged by information with one count of rape (§ 261, subd. (a)(2), count one); one count of forcible oral copulation (§ 288a, subd. (c)(2), count two); two counts of attempted rape (§§ 261, subd. (a)(2), 664, counts three and four); and one count of second degree robbery (§§ 211, 212.5, subd. (c), count five). For counts one through four, the information alleged a weapon enhancement under section 12022.3, subdivision (b). It also alleged a “One Strike” prior conviction allegation (§ 667.61, subd. (a)(2)), three prior strike convictions (§§ 667, 1170.12), three prior serious felony convictions (§ 667, subd. (a)(1)), and three prior prison convictions (§ 667.5, subd. (b)). Thomas testified at trial. He contended he and the woman had smoked crack cocaine and had consensual sex, an account that was supported by his sister’s testimony.