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Filed 9/26/24 P. v. Thomas CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLARD EUGENE THOMAS,

Defendant and Appellant.

A169763

(Contra Costa County Super. Ct.

No. 05000318592)

Willard Eugene Thomas appeals from the superior court’s denial of his 

motion to recall his sentence and resentence him under Penal Code section 

1172.751. The court partially granted and partially denied his motion, and 

Thomas appealed. 

Thomas’s appointed appellate counsel has filed a brief under People v. 

Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) in which he finds no arguable 

appellate issues and requests that we exercise our discretion to conduct an 

independent review of the record. Thomas has submitted a letter in which he 

raises multiple issues. Although we decline to conduct an independent 

review, we address the issues Thomas raises and affirm. 

1 Undesignated statutory citations are to the Penal Code.
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I. BACKGROUND

A. Thomas’s 1999 Offenses and 2005 Sentencing

In 2004, Thomas was convicted of multiple offenses, and the judgment

entered against him was affirmed on appeal in People v. Thomas (Oct. 17, 

2008, A110427) [nonpub. opn.]. As recounted in that unpublished opinion,

early in the morning of September 17, 1999, Thomas confronted a woman 

walking on the street in Richmond, California and pushed against her side 

what she believed was a knife. He walked her to some bushes and pushed 

her into them, made her remove a pant leg and unfastened her bra, put his 

hand on her breast, and got on top of her. He then tried two or three times to 

penetrate her but was unsuccessful. He made her put his penis in her mouth 

and had sexual intercourse with her, ejaculating inside her. He then got up, 

grabbed her purse, and left. 

Subsequently, a vaginal swab was taken from the woman. DNA testing

of sperm found on the swab ultimately led investigators to Thomas.

Thomas was charged by information with one count of rape (§ 261, 

subd. (a)(2), count one); one count of forcible oral copulation (§ 288a,

subd. (c)(2), count two); two counts of attempted rape (§§ 261, subd. (a)(2), 

664, counts three and four); and one count of second degree robbery (§§ 211,

212.5, subd. (c), count five). For counts one through four, the information 

alleged a weapon enhancement under section 12022.3, subdivision (b). It also 

alleged a “One Strike” prior conviction allegation (§ 667.61, subd. (a)(2)), 

three prior strike convictions (§§ 667, 1170.12), three prior serious felony 

convictions (§ 667, subd. (a)(1)), and three prior prison convictions (§ 667.5, 

subd. (b)).

Thomas testified at trial. He contended he and the woman had smoked 

crack cocaine and had consensual sex, an account that was supported by his 

sister’s testimony. 
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Thomas was found guilty of the charges on all counts against him, 

except the trial court found only two of the prior conviction allegations and 

two of the prison prior allegations to be true. In May 2005, the court

sentenced him to a total state prison term of 124 years to life. This consisted 

of 25 years to life on counts one and two pursuant to the One Strike law 

(§ 667.61) to be served concurrently and tripled pursuant to the “Three 

Strikes” law (§§ 667, subds. (b)–(i), 1170.12), for a total term of 75 years to 

life; five years for each of the two prior felony convictions; the midterm of two 

years for the weapon enhancement; two years for the two prison priors; the 

midterm of three years on counts three and four, to run concurrent to each 

other and to the sentences for counts one and two; 25 years to life pursuant to 

the Three Strikes law for count five, to be served consecutively; and two fiveyear sentences for the serious prior felonies. 

According to the 2008 opinion affirming Thomas’s convictions and 

sentence, “[i]n ordering that the sentence on count five [robbery] run 

consecutively, the trial court noted that (1) the objective of the robbery was 

different from that of the sex crimes, (2) defendant’s prior convictions were 

numerous and of increasing seriousness, and (3) defendant had been 

unsuccessful on parole, concluding that ‘any of those reasons that the Court 

had just cited would be sufficient in and of itself to substantiate a consecutive 

sentence.’ ” The court further stated regarding count five that it did not 

usually sentence a defendant consecutively but that this case “ ‘cried out for’ ” 

it. 

B. Thomas’s 2023 Motion To Recall His Sentence

In November 2023, Thomas, through counsel, filed his motion for the 

recall of his sentence under section 1172.75 in Contra Costa County Superior 

Court. He asked the court to conduct a full resentencing hearing and argued 

it was required under the circumstances to strike all but one of the 
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allegations for which he was sentenced under sections 667, subdivision (a), 

667.5, subdivision (b), 12022.3, subdivision (b), and 1170.12; he further

argued that, regardless, the court should exercise its discretion under section 

1385 to strike these and the other Three Strike allegations against him in the 

interest of justice. In support of his discretion argument, Thomas asserted he 

would not be eligible for parole for four years, when he reached age 65, was in 

declining physical health, and had taken effective steps to rehabilitate 

himself, including by addressing his “substance use disorder” and the 

physical trauma, neglect, sexual abuse, and concomitant mental illness that 

he had suffered. He claimed he did not pose a risk to public safety. Further, 

given his advanced age, he posed a drastically reduced risk of recidivism. He 

also argued as a mitigating factor that the enhancements imposed against 

him were for convictions that had occurred 20, 14, and 5 years before his 

sentencing and, therefore, were “extremely remote.” 

Thomas acknowledged the case law holding that Three Strikes law 

allegations do not constitute “enhancements” (see People v. Burke (2023) 

89 Cal.App.5th 237, 243–244), but he nonetheless relied on the Burke court’s 

view that the law’s legislative history was inconsistent with its plain 

language (see id. at p. 243, fn. 3) to argue the trial court should exercise its 

discretion under section 1385 to apply the enhancement dismissal factors to 

the five-year serious felony conviction allegations and strike his strike priors. 

He also argued that sentencing him, an African-American, under the 

enhancement and Three Strikes law allegations was discriminatory under

the Racial Justice Act of 2020 (§ 745). Thomas also urged the court to impose 

concurrent rather than consecutive prison terms. 

The prosecution conceded that the court had to strike at least one of the 

section 667.5 enhancement allegations against Thomas as not based on a 
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sexually violent offense, and stated that it did not oppose the court striking 

both allegations made under that provision, striking the section 667, 

subdivision (a)(1) allegations, and staying the section 12022.3, subdivision (b) 

enhancement sentence. But the prosecution opposed the court striking any of 

Thomas’s prior strikes because Three Strikes law penalties are not 

enhancements and Thomas’s sentence was within the spirit of the Three 

Strikes law. It asked the court to resentence Thomas to an indeterminate 

term of 100 years to life. 

After hearing, the trial court recalled Thomas’s sentence, struck the 

section 667.5 and 667, subdivision (a)(1) allegations and stayed the section 

12022.3, subdivision (b) enhancement sentence. It also found a separation 

between “an act of sexual violence and an act of robbery” and that other

factors warranted maintaining the consecutive sentences. It resentenced 

Thomas to an indeterminate term of 75 years to life and a consecutive 

indeterminate term of 25 years to life, for a total indeterminate term of 100 

years to life. 

Thomas filed a timely notice of appeal. (CT 201.)

II. DISCUSSION

Because the present appeal is not from a conviction, Thomas is not 

entitled to our independent review of the record pursuant to People v. Wende

(1979) 25 Cal.3d 436 or Anders v. California (1967) 386 U.S. 738. (Delgadillo, 

supra, 14 Cal.5th at p. 226.) Nonetheless, although “[t]he filing of a 

supplemental brief or letter does not compel an independent review of the 

entire record to identify unraised issues,” we are “required to evaluate the 

specific arguments presented in [the supplemental] brief and to issue a 

written opinion.” (Delgadillo, at p. 232.)
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In his August 12, 2024 letter to the court, Thomas contends that each of 

the attorneys who represented him before the trial court was prejudiced 

against him; that he asked them to file a motion under People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497 (Romero); that the court should dismiss 

or impose a sentence that does not exceed 20 years under the Racial Justice 

Act; that he is in very bad health and his mother has been recently diagnosed 

and hospitalized with a fatal form of cancer; that he has taken numerous 

classes to help better himself and keep him from committing a crime again; 

that he lied at trial, is remorseful regarding his victim, and accepts 

responsibility for his crimes; and that upon release, he has a very good 

support team that would help him stay out of trouble.

Section 1172.75 invalidates any sentence enhancement imposed 

pursuant to section 667.5, subdivision (b) prior to January 1, 2020, except for 

any enhancement imposed for a prior conviction for a sexually violent offense 

as defined in subdivision (b) of section 6600 of the Welfare and Institutions 

Code. (§ 1172.75, subd. (a).) Once the trial court has received such 

information and confirmed that the current judgment includes a prior prison 

term enhancement that is now legally invalid, the trial court “shall recall the 

sentence and resentence the defendant.” (§ 1172.75, subd. (c).)

Section 1172.75, subdivision (d)(1) provides that “[r]esentencing 

pursuant to this section shall result in a lesser sentence than the one 

originally imposed as a result of the elimination of the repealed 

enhancement, unless the court finds by clear and convincing evidence that 

imposing a lesser sentence would endanger public safety. Resentencing 

pursuant to this section shall not result in a longer sentence than the one 

originally imposed.” When resentencing, the court “shall apply the 

sentencing rules of the Judicial Council and apply any other changes in law 
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that reduce sentences or provide for judicial discretion so as to eliminate 

disparity of sentences and to promote uniformity of sentencing.” (§ 1172.75, 

subd. (d)(2).) “The court may consider postconviction factors, including, but 

not limited to, the disciplinary record and record of rehabilitation of the 

defendant while incarcerated, evidence that reflects whether age, time 

served, and diminished physical condition, if any, have reduced the 

defendant’s risk for future violence, and evidence that reflects that 

circumstances have changed since the original sentencing so that continued 

incarceration is no longer in the interest of justice.” (§ 1172.75, subd. (d)(3).)

To the extent Thomas wishes to challenge his convictions or sentence 

on the grounds of ineffective assistance of counsel, that argument is more 

appropriately brought, if at all, in a habeas corpus petition.2 As for the 

remainder of his contentions, they essentially repeat those he made below in 

support of his motion and which the trial court in its discretion rejected as a 

basis for granting him any further sentencing relief. He gives us no reason to 

cast any doubt on the correctness of the trial court’s ruling. 

III. DISPOSITION

The order appealed from is affirmed.

STREETER, J. 

WE CONCUR:

BROWN, P. J.

GOLDMAN, J.

2 We express no opinion on whether such a habeas petition would be 

timely or successful.