People v. Thomas

Full title: THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE THOMAS, Defendant and…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Sep 9, 2011

G044471 (Cal. Ct. App. Sep. 9, 2011)

Opinion

G044471

09-09-2011

THE PEOPLE, Plaintiff and Respondent, v. JOHNNY LEE THOMAS, Defendant and Appellant.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio, Deputy Attorney General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 05CF0277)

OPINION

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed in part and reversed in part.

Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gary W. Brozio, Deputy Attorney General, for Plaintiff and Respondent.

THE COURT:^*

* Before Rylaarsdam, Acting P.J., O'Leary, J., and Ikola, J.

We previously affirmed the convictions of defendant Johnny Lee Thomas and three co-defendants, but remanded for resentencing, in People v. Graham (Jan. 30, 2009, G037997) (nonpub. opn.); we take judicial notice of this case. Thomas now appeals from his new sentence. We again remand the case for corrections required to be made in the sentence. Thomas was convicted of a large number of crimes connected to two home invasion robberies. To the extent the facts are relevant to the sentencing issues, we will note them in our discussion.

DISCUSSION

1. Sentence imposed

On remand, the court imposed the following term on Thomas. The court designated the street terrorism conviction (count 15; Pen.Code, § 186.22, subd. (a); all statutory references are to the Penal Code unless otherwise noted) as the principal determinate sentence and imposed the midterm of two years. On counts 1, 7, 8 (first degree robbery in concert; §§ 211, 212.5, subd. (a), 213, subd. (a)(1)) and 3 (oral copulation, § 288a(c)(2)), the court sentenced Thomas to 15 years to life, with the sentence on counts 1, 3, and 7 to run consecutively, and that on count 8 to run concurrently. The court stayed sentence for count 2 (theft of a vehicle; Veh. Code, § 10851, subd. (a)). The total sentence was 47 years to life.

2. The sentence for street terrorism should be stayed.

The Attorney General concedes, and we agree, that the two-year sentence for street terrorism should be stayed pursuant to section 654. The court used the alternative sentencing scheme of section 186.22, subdivision (b)(4), to arrive at the 15-years-to-life terms for the robberies. Section 186.22, subdivision (b)(4), increases the sentence when the crime is gang related. Thus, the trial court used the same finding, that Thomas was a member of and acting for the benefit of his street gang, to impose the life terms and to impose the separate two-year sentence. Section 654 prohibits imposing punishment for the commission of the same act that is unlawful under more than one statute. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) Therefore the two-year sentence on count 15 should be stayed.

3. Discrepancies in the sentencing require clarification on remand.

At the outset of the sentencing hearing, the court stated its intent to "reimpose the sentence that was initially imposed in this case," with the exception that the street terrorism conviction (count 15) would now be designated as the principal determinate sentence. But the ensuing "truncated resentencing," as Thomas describes it, resulted in several discrepancies between the original sentence and the new one, at least as recorded in the minute order and abstract of judgment, as distinguished from the reporter's transcript. We need not specify these discrepancies here because the oral pronouncement of the sentence controls over the minute order and abstract of judgment. (People v. Mithcell (2001) 26 Cal.4th 181, 185-186.) And after resentencing, the clerk will issue a new minute order and abstract of judgment, which we expect will correspond to the court's oral pronouncement of sentence.

DISPOSITION

Thomas's conviction remains affirmed. The sentence is vacated on all counts and the matter is remanded for resentencing.