People v. Thomas CA1/5

Filed 6/6/25 P. v. Thomas CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, Plaintiff and Respondent, A170260 v. CHARLES LEON THOMAS, (Contra Costa County Defendant and Appellant. Super. Ct. No. 05000322396)

Defendant appeals following his resentencing under Penal Code section 1172.75, which limits the imposition of prior prison term enhancements.1 On appeal, he contends his sentence of 25 years to life for attempted rape is an unauthorized sentence because section 667.61, the “One Strike” law, does not apply to attempted rape. He further contends the trial court erred in applying section 667.6, subdivision (d) to the attempted rape conviction. The People concede, and we agree, remand for resentencing is required. BACKGROUND In November 2003, the Contra Costa County District Attorney filed an information charging defendant with rape (§ 261, subd. (a)(2); count one); attempted rape (§§ 261, subd. (a)(2), 664; count two); residential burglary (§§ 459, 460, subd. (a); count three); criminal threats (§ 422; count four); and

1 All statutory references are to the Penal Code.

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false imprisonment (§§ 236, 237; count five). The information also alleged the rape took place during the commission of a burglary and involved tying and binding (§ 667.61, subds. (a), (d), (e), (e)(6); One Strike law); defendant had three prior strikes (§§ 667, subds. (b)–(i), 1170.12; “Three Strikes” law) and two prior serious felony convictions (§ 667, subd. (a)(1)); and defendant had served three prior prison terms (§ 667.5, subd. (b)). In 2004, a jury found defendant guilty on all counts. In a separate court trial, the court found true the enhancement allegations, all three prior strike allegations, the two prior serious felony allegations, and all prior prison term allegations.2 On December 2, 2004, the trial court sentenced defendant to 75 years to life on count one. On count two, he was sentenced to a consecutive term of 25 years to life. On counts three, four, and five, defendant was sentenced to 25 years to life for each count and the sentences were stayed pursuant to section 654. The trial court imposed additional five-year terms for each of defendant’s two prior serious felony convictions, plus an additional one-year term for each of defendant’s three prior prison terms. Defendant’s total sentence was 113 years to life. In our unpublished opinion (People v. Thomas (Mar. 30, 2006, A108687)), we ordered two of defendant’s one-year prior prison enhancements to be struck, resulting in a total sentence of 111 years to life. On February 6, 2024, defendant filed a motion for recall of sentence and full resentencing pursuant to section 1172.75.3 The People conceded that