People v. Thomas CA5

California Court of Appeal Jun 21, 2022 No. F078649AUnpublished

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Holding. The court held that a trial court has the discretion to impose a lesser included firearm enhancement under Penal Code section 12022.53, subdivisions (b) or (c) after striking a section 12022.53, subdivision (d) enhancement. Because the trial court was previously unaware of this authority, the case must be remanded for resentencing.

Issues

Whether a trial court has the discretion to replace a section 12022.53, subdivision (d) firearm enhancement with a lesser included enhancement under section 12022.53, subdivision (b) or (c).
Whether the defendant is entitled to a remand for resentencing due to the trial court's misunderstanding of its sentencing discretion.

Disposition. remanded

Quotations verified verbatim against the opinion

“the appropriate remedy is to remand for resentencing.”

“Defendant’s sentence is ordered vacated and the cause is remanded for a new sentencing hearing.”

Filed 6/21/22 P. v. Thomas CA5 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F078649 Plaintiff and Respondent, (Super. Ct. No. F15907476) v.

KESHAWN THOMAS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Clara M. Levers, Jeffrey A. White, and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Peña, J. and Meehan, J.

Keshawn Thomas (defendant) is currently serving an indeterminate prison sentence for committing attempted murder and other related felonies. He appeals from an order denying a request for relief under Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620), which gave trial courts discretion to “strike or dismiss” firearm use enhancements in the interest of justice pursuant to Penal Code section 1385. (Id., §§ 12022.5, subd. (c), 12022.53, subd. (h); all further statutory references are to the Penal Code.) Defendant’s judgment includes an enhancement under section 12022.53, subdivision (d), which added a term of 25 years to life to a mitigated base term of five years for attempted murder. The trial court is alleged to have been unaware of its authority to replace the charged and adjudicated enhancement with a lesser included, but uncharged, enhancement under section 12022.53, subdivision (b) or (c). The California Supreme Court’s recent decision in People v. Tirado (2022) 12 Cal.5th 688 supports this claim. Accordingly, the cause will be remanded for resentencing. FACTUAL AND PROCEDURAL BACKGROUND In March 2016, a jury convicted defendant of attempted murder (§§ 187, 664; count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), and attempted robbery (§§ 211, 664; count 3). Firearm enhancement allegations under section 12022.53, subdivision (d) were found true in relation to counts 1 and 3. A firearm enhancement allegation under section 12022.5, subdivision (a) was found true in relation to count 2. No additional enhancements were alleged. 1 In April 2016, defendant was sentenced to an aggregate prison term of 30 years to life based on the lower term of five years for count 1 plus the enhancement under section

People v. Thomas CA5

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