People v. Thomas CA2/1

California Court of Appeal Aug 31, 2023 No. B324557Unpublished

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Holding. The court held that the defendant was ineligible for resentencing under Penal Code section 1172.6 because he was the actual shooter and was convicted based on his own specific intent to kill, rather than the natural and probable consequences doctrine.

Issues

Whether the trial court erred in summarily denying the defendant's petition for resentencing under Penal Code section 1172.6.
Whether the trial court committed reversible error by considering the prior appellate opinion at the prima facie stage of the resentencing proceeding.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“As the sole and actual perpetrator of the attempted murder, Thomas is ineligible for resentencing as a matter of law.”

“Thomas does not meet this eligibility test, because he was not prosecuted based on the natural and probable consequences doctrine.”

“Because Thomas was not entitled to relief as a matter of law regardless of whether the court improperly considered the prior appellate opinion, any error in considering that opinion was immaterial to the outcome here and does not require reversal.”

Filed 8/31/23 P. v. Thomas CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B324557

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA089835) v.

WENDELL RAY THOMAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lee W. Tsao, Judge. Affirmed. Lenore De Vita, under appointment by the Court of Appeal, for Defendant and Appellant. No Appearance for Plaintiff and Respondent.

_______________________________

MEMORANDUM OPINION1 Defendant Wendell Ray Thomas appeals the trial court’s denial of his petition for resentencing pursuant to Penal Code2 section 1172.6 (former § 1170.953). We find no error and affirm. A. Procedural Background An amended information, filed on February 15, 2006, charged Thomas with attempted willful, deliberate, and premeditated murder in violation of sections 187, subdivision (a) and 664, and specially alleged he personally discharged a firearm causing great bodily injury to the victim, in violation of section 12022.53, subdivisions (b) through (d) (count 1). The amended information also charged Thomas with possession of a firearm by a felon, in violation of section 12021, subdivision (a)(1) (count 2). After trial, the jury found Thomas guilty of attempted murder as charged in count 1 but found not true the special allegation that he acted willfully, deliberately, and with premeditation. The jury found true the special allegations that Thomas personally used a handgun in violation of section 12022.53, subdivision (b) and that Thomas personally and intentionally discharged a handgun causing great bodily injury to

People v. Thomas CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B324557

WENDELL RAY THOMAS,

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