Filed 7/24/26 P. v. Thomas CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A171122
v.
ANTOINE THOMAS, (Solano County
Super. Ct. No. FCR241350)
Defendant and Appellant.
MEMORANDUM OPINION1
On December 14, 2010, a jury convicted Antoine Thomas of possession
for sale of cocaine base. (Health & Saf. Code, § 11351.5.) The jury also found
true allegations that he had suffered several prior serious felony convictions
(Pen. Code § 667, subd. (b), 1170.12, subd. (a))2 and had served a prior prison
term (former § 667.5, subd. (b)).3 On May 23, 2011, the trial court sentenced
Thomas to prison for a term of 25 years to life.
1 We resolve this appeal by a memorandum opinion pursuant to
California Standards of Judicial Administration, section 8.1.
2 All further undesignated statutory references are to the Penal Code.
3 We omit a discussion of the facts underlying defendant’s conviction
because they are not relevant to the issues raised on appeal.
In 2021, the Legislature enacted section 1172.75, which invalidates
most prior prison term sentence enhancements “imposed” prior to January 1,
2020, and provides for resentencing of a person who is “currently serving a
term for a judgment that includes” such an enhancement. (Stats. 2021,
ch. 728, § 3, eff. Jan. 1, 2022.) In July 2023, Thomas filed a motion for
resentencing under section 1172.75. Following a hearing, the trial court
found that Thomas was not entitled to resentencing under section 1172.75.
The court explained that while the abstract of judgment showed that the
prison prior enhancement had been imposed and stayed, the transcript from
the original sentencing proceeding in 2011 revealed that the enhancement
was not actually discussed. Accordingly, concluding that the enhancement
had not been imposed within the meaning of the statute, the court declined to
consider the resentencing motion but ordered that the abstract be amended
to delete reference to the prior prison term enhancement.
In his opening brief, Thomas’s appointed counsel failed to challenge the
relevant order and instead argued that the $5,000 restitution fine imposed
following his conviction in 2011 must be vacated under section 1465.9,
subdivision (d), which reads, “Upon the expiration of 10 years after the date
of imposition of a restitution fine pursuant to Section 1202.4, the balance,
including any collection fees, shall be unenforceable and uncollectible and
any portion of a judgment imposing those fines shall be vacated.” The
Attorney General did not dispute Thomas’s entitlement to relief under
section 1465.9, but argued that this court lacked jurisdiction to consider his
claim because the order denying relief under section 1172.75 is not an
appealable order.
After briefing was complete, in response to Thomas’s request, we
appointed replacement counsel. In his supplemental briefing, Thomas
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challenges the denial of his motion for resentencing. Citing People v. Rhodius
(2025) 17 Cal.5th 1050 (Rhodius) and People v. Espino (July 2, 2026,
S286987) ___Cal.5th ___ [2026 Cal. Lexis 3418] (Espino), which was decided
after the Attorney General’s supplemental brief was filed, Thomas argues
that the court erred in concluding that the enhancement had not been
imposed and thus that he was not entitled to resentencing. Although the
Attorney General initially contested Thomas’s right to resentencing, in a
supplemental letter brief, the Attorney General now acknowledges that
under Espino’s reasoning, the order denying Thomas’s request for
resentencing should be reversed and the matter remanded for a full
resentencing in accordance with section 1172.75, subdivision (d). We agree.
In Rhodius, supra, 17 Cal.5th 1050, 1068, the court held that
“section 1172.75(a) applies to enhancements that were imposed as part of the
defendant’s original judgment, regardless of whether the enhancement was
stayed or executed. If the enhancement is no longer authorized under the
current version of section 667.5(b), section 1172.75(a) renders the
enhancement invalid. And the retroactive invalidation of the previously
imposed enhancements in turn mandates resentencing under section
1172.75, according to the procedures set forth therein.” In Espino, the court
expanded on Rhodius to hold that an enhancement is imposed for purposes of
section 1172.75 where the sentencing court strikes the punishment for the
enhancement but not the allegation itself. The court explained: “Imposing a
sentence on a criminal defendant has legal effect, and a true finding on a
prior prison term allegation is a part of the sentencing order, even when the
associated punishment is stricken. (See People v. Fuentes (2016) 1 Cal.5th
218, 225, 204 Cal.Rptr.3d 818, 375 P.3d 928 [striking the punishment for an
enhancement ‘ “ ‘merely serves to prohibit a certain purpose for which the
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[allegation] may be used’ ” ’; it ‘ “does not ‘operate to defeat the factual finding
of the truth of the [allegation]’ ” ’].) It follows that, as a matter of ordinary
usage, an enhancement included in the sentence in a criminal case may be
‘imposed’ (§ 1172.75(a)) even if the punishment for that enhancement is
stricken.” (Espino, supra, __ Cal.5th __, __ [2026 Cal. Lexis 3418 at *11–*12.)
Here, because the jury’s true finding was neither stricken nor
dismissed, it remained imposed within the meaning of section 1172.75 in
Thomas’s judgment.
DISPOSITION
The order denying Thomas’s motion for resentencing is reversed and
the matter is remanded for a full resentencing under section 1172.75,
subdivision (d), as well as for proceedings on any motion for relief under
section 1465.9, subdivision (d) filed by Thomas.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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