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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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).)
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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].)
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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.
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