People v. Thabiti CA2/8

Opinion

Filed 9/4/26 P. v. Thabiti CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B337457

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA046345-01) v.

AQUEEL CALVIN THABITI,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Reversed and remanded with directions. Heather E. Shallenberger, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Stephen D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ MEMORANDUM OPINION Aqueel Thabiti appeals from the sentence imposed at his resentencing hearing conducted pursuant to Penal Code1 section 1172.75. We find this matter appropriate for disposition by a memorandum opinion in accordance with the California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 850–855 [use of memorandum opinions].) In 2002, Thabiti was convicted of kidnapping Sharleene N. to commit rape (§ 209, subd. (b)(1)) (count 1); assaulting Sharleene N. with intent to commit a sex offense (§ 220) (count 2); first degree burglary of the residence of Gabriela S. (§ 459) (count 3); and assaulting Gabriela S. with intent to commit a sex offense (§ 220) (count 4). At sentencing, the court sentenced Thabiti to full consecutive third strike sentences of 25 years to life on counts 1 and 3 and added an additional 21 years in enhancements under sections 667, subdivision (a) and 667.5, subdivision (b), for a total sentence of 71 years to life in state prison. Pursuant to section 654, the court stayed the sentences on counts 2 and 4. We affirmed the judgment on appeal. (People v. Thabiti (Feb. 2, 2004, B159381) [nonpub. opn.].) Subsequently, the Legislature enacted section 1172.75, which invalidated all section 667.5, subdivision (b) enhancements imposed prior to January 1, 2020, except for enhancements imposed for prior convictions of sexually violent offenses. (§ 1172.75, subd. (a).) Thabiti was resentenced after his sentence was identified as potentially impacted by this legislative change.

1 Undesignated statutory references are to the Penal Code.

2 At the resentencing hearing, the court concluded Thabiti’s original sentence was legally unauthorized because full consecutive sentences on counts 3 and 4 had been mandatory. But for this error, the court explained, Thabiti originally would have been sentenced to 116 years to life in state prison rather than the 71 years to life in state prison he had received. Believing it was required to impose consecutive sentences on counts 2, 3, and 4, the resentencing court imposed consecutive sentences of 25 years to life for each of those counts and added one year pursuant to section 667.5, subdivision (b)2 on count 2, for a total sentence of 76 years to life. The court stayed the sentence on count 1 pursuant to section 654. The resentencing court was aware that section 1172.75, subdivision (d)(1) provides that resentencing pursuant to that statute “shall not result in a longer sentence than the one originally imposed,” and it expressed discomfort about “taking a 65-year-old man, notwithstanding his terrible conviction record, and actually increasing his sentence over what it was before he filed this petition,” but it felt it had no other legally valid option. The court invited Thabiti to appeal, stating, “An appellate court 2 Thabiti was alleged to have served two prior prison terms, one for a violation of section 288, subdivision (b), and the other for a violation of section 290, subdivision (g)(2). At the original sentencing hearing, the trial court imposed one section 667.5, subdivision (b) enhancement and stayed the other. While section 1172.75, subdivision (a) invalidated the prior prison term enhancement based on the prior prison term for violating section 290, subdivision (g)(2), it is undisputed that the other one-year prior prison term enhancement remains valid because a violation of section 288 is a sexually violent offense. (§ 1172.75, subd. (a); Welf. & Inst. Code, § 6600, subd. (b).)

3 can find out if there’s some way I could have done something differently.” The parties agree, as do we, that the trial court was mistaken in its determination that the original sentence was unauthorized because full consecutive sentences on both counts 3 and 4 were mandatory. As the People conceded below, the burglary in count 3 and the assault in count 4 were committed against the same victim and on the same occasion. Therefore, while section 667.6, subdivision (c) authorized consecutive sentencing on these two offenses, imposing full consecutive sentences for both offenses was not mandatory. (People v. Deloza (1998) 18 Cal.4th 585, 596–597; § 667.6, subd. (c).) Similarly, at resentencing, the court was not required to impose a full consecutive sentence on count 3 in addition to the consecutive sentences it imposed on counts 2 and 4 pursuant to section 667.6, subdivision (d)(1). (Deloza, at pp. 596–597; § 667.6, subd. (c).) The trial court appears not to have been aware of its discretion in this regard. We therefore remand to permit the court to resentence Thabiti pursuant to section 1172.75. (People v. Deloza, supra, 18 Cal.4th at p. 600 [remanding for resentencing where trial court misunderstood the scope of its discretion to impose concurrent sentences and erroneously believed consecutive sentences were mandatory]; see also People v. Flores (2020) 9 Cal.5th 371, 431–432 [when a trial court misunderstands or is unaware of the scope of its sentencing discretion, a reviewing court must remand for resentencing unless the record clearly indicates the trial court would have reached the same conclusion even if it had been aware that it had such discretion].)

4 DISPOSITION The judgment is reversed and the matter remanded to the trial court with directions to resentence Thabiti in accordance with Penal Code section 1172.75.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.