Filed 12/23/19 P. v. Thomas CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

KELLY ANDREW THOMAS,

Defendant and Appellant.

C088876

(Super. Ct. No. 14F05755)

Defendant Kelly Andrew Thomas and an accomplice opened fire at an infant’s birthday party in a park, killing one person and injuring several others. A jury found him guilty of murder, three counts of attempted murder, and being a felon in possession of a firearm, and the jury also found true several special allegations, including a strike prior. After defendant originally appealed his convictions, in an unpublished decision we remanded the matter for resentencing. (See People v. Thomas (July 27, 2018, C083094) [nonpub. opn.].) Having been resentenced, defendant again appeals.

He argues the trial court erred in imposing full consecutive terms on two of the attempted murder convictions as well as the felon in possession conviction rather than a consecutive term of one-third the midterm for each of the three subordinate offenses. The People concede, and we accept the concession. We shall remand for resentencing accordingly.

BACKGROUND

Following remand, defendant was resentenced to 25 years to life for the murder conviction, which was doubled to 50 years to life for the strike prior, plus 25 years to life for an attached firearm enhancement. Over defense counsel’s objection, the court imposed consecutive full middle terms of seven years, doubled to 14 years, for each of the attempted murder convictions, plus 25 years to life for each of three attached firearm enhancements. For the felon in possession of a firearm offense, the court imposed a consecutive full middle term of two years, doubled to four years for the strike. Defendant timely appealed.

DISCUSSION

Defendant contends the trial court erroneously imposed full consecutive sentences on two attempted murder counts and the felon in possession count, and remand for resentencing is required. According to defendant, the aggregate determinate portion of his sentence should be 24 years eight months rather than the 48 years imposed by the trial court. The People concede, and we agree.

“Under California law, most felonies carry a ‘determinate’ prison sentence consisting of one of three possible terms, designated the lower, middle, and upper terms.” (People v. Nguyen (1999) 21 Cal.4th 197, 201.) If a defendant has multiple convictions in the same proceeding, the sentencing court may order that any determinate sentence be served either concurrently or consecutively. (Ibid.) If the court exercises its discretion to impose consecutive terms, Penal Code section 1170.1, subdivision (a) specifies the normal method for calculating the overall prison term. The statute provides, with certain exceptions, that “the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1.” The “principal term” equals the greater term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. (Ibid.) The “subordinate term” for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (Ibid.)

In People v. Nguyen, supra, 21 Cal.4th at pages 199-200, the California Supreme Court addressed the proper method of calculating consecutive determinate terms for two strike defendants convicted of multiple offenses. Specifically, the court considered how the consecutive sentence calculation under section 1170.1, subdivision (a) was affected by the three strikes law, “which provides that for a defendant with one prior conviction for a ‘strike’ (a violent or serious felony) ‘the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.’ ” (Nguyen, at p. 202, citing §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) In other words, “the question is whether the consecutive determinate term to be doubled is one-third of the middle term or a full term (either the lower, middle, or upper).” (Nguyen, at p. 200.) The court concluded that for second strike defendants — like defendant here — the consecutive determinate term to be doubled ordinarily is one-third of the middle term because the two-strike sentencing provision incorporates the principal term/subordinate term methodology of section 1170.1. (Nguyen, at p. 200; see also id. at p. 207.)

Contrary to Nguyen, the trial court here doubled the full middle term for each of the subordinate terms it imposed consecutively. The trial court made clear that it intended to choose the middle term for the attempted murder and felon in possession offenses. Thus, the court should have imposed the middle term of seven years for one attempted murder charge, doubled to 14 years for the strike prior, and then one-third the middle term doubled for two additional attempted murder counts and the felon in possession count, plus the indeterminate 25-year-to-life firearm enhancement for each of the attempted murder offenses.

DISPOSITION

The matter is remanded for resentencing in a manner consistent with this opinion. In all other respects, the judgment is affirmed. Upon resentencing, the clerk is directed to prepare an amended abstract of judgment that properly reflects the sentence imposed on each count and shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

/s/

Robie, Acting P. J.

We concur:

/s/

Mauro, J.

/s/

Duarte, J.