Filed 4/13/15 P. v. Thomas CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARLON J. THOMAS et al.,

Defendants and Appellants.

 B252678

 (Los Angeles County

 Super. Ct. No. TA123047)

APPEAL from judgments of the Superior Court of Los Angeles County, Allen J. 

Webster, Jr., Judge. Thomas’s judgment is affirmed in part as modified, reversed in part, 

and remanded. Thompson’s judgment is affirmed as modified.

Cannon & Harris, Donna L. Harris, under appointment by the Court of Appeal, for 

Defendant and Appellant Marlon J. Thomas.

Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and 

Appellant Tommy D. Thompson, Jr.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Jonathan J. Kline and 

Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

A jury convicted defendant and appellant Marlon Thomas of first degree felony 

murder (Pen. Code, § 187, subd. (a)1); willful, deliberate, and premeditated attempted 

murder (§§ 664, subd. (a)/187, subd. (a)); first degree burglary (§ 459); and first degree 

residential robbery (§ 211). As to Thomas’s murder conviction, the jury found true the 

special circumstance allegations that Thomas committed the murder during the 

commission of a first degree residential robbery and first degree residential burglary (§ 

190.2, subd. (a)(17)) and that he personally used and personally and intentionally 

discharged a firearm causing great bodily injury and death (§ 12022.53, subds. (b)-(d)). 

With respect to the attempted murder conviction, the jury found true the allegation that 

Thomas personally inflicted great bodily injury (§ 12022.7, subd. (a)) and personally 

used and personally and intentionally discharged a firearm causing great bodily injury (§ 

12022.53, subds. (b)-(d)). With respect to the burglary and robbery convictions, the jury 

found true the allegations that another person who was not an accomplice was present in 

the residence and Thomas personally used and personally and intentionally discharged a 

firearm causing great bodily injury and death. (§ 12022.53, subds. (b)-(d).) The trial 

court sentenced Thomas to life without the possibility of parole plus 50 years. 

The jury convicted defendant and appellant Tommy Thompson, Jr. of first degree 

felony murder (§ 187, subd. (a)) and first degree burglary (§ 459). The jury acquitted 

Thompson of robbery. (§ 211.) As to Thompson’s murder conviction, the jury found 

true the allegation that a principal used a firearm (§ 12022, subd. (a)(1)), but found not 

true the special circumstance allegations that Thompson committed the murder during the 

commission of a first degree residential robbery and first degree residential burglary (§ 

190.2, subd. (a)(17)). As to the burglary conviction, the jury found true the allegations 

that another person who was not an accomplice was present in the residence and a 

principal used a firearm. (§ 12022, subd. (a)(1).) The trial court sentenced Thompson to 

26 years to life. 

 

1 All statutory citations are to the Penal Code unless otherwise noted.
3

On appeal, Thomas contends that the jury’s true findings on the section 12022.53, 

subdivisions (b) through (d) firearm allegations with respect to his burglary conviction 

must be reversed because burglary is not an offense to which section 12022.53 applies;

his sentences for his burglary and robbery convictions should have been stayed under 

section 654; his stayed $280 parole revocation restitution fine must be reversed because 

his sentence does not include a parole period; and his abstract of judgment must be 

modified to reflect that he was sentenced to life with, not without, the possibility of 

parole for his attempted murder conviction and to correct the spelling of his middle name. 

We order the jury’s true findings on the section 12022.53, subdivisions (b) through (d) 

firearm allegations as to Thomas’s burglary conviction reduced to a lesser included 

violation of section 12022.5, subdivision (a) and remand the matter for resentencing; 

Thomas’s sentences for his burglary and robbery convictions stayed under section 654 

and his abstract of judgment modified accordingly; Thomas’s $280 parole revocation 

restitution fine reversed and stricken from his abstract of judgment; Thomas’s abstract of 

judgment modified to reflect that Thomas was sentenced to life with the possibility of 

parole for his attempted murder conviction; and the trial court to determine the correct 

spelling of Thomas’s name on remand.

Thompson contends on appeal that there is insufficient evidence to support his 

murder and burglary convictions and, if there is sufficient evidence to support his 

burglary conviction, then the sentence for that conviction should have been stayed under 

section 654. Thompson joins Thomas’s arguments to the extent that they benefit him. 

We affirm Thompson’s murder and burglary convictions and order the sentence for his 

burglary conviction stayed under section 654 and his abstract of judgment modified 

accordingly.
4

BACKGROUND

Terrance Scott was friends with Thompson and Thompson’s mother Jaquita 

Curtis. At least as of October 2010, Curtis and Thomas were a couple. Roosevelt Scott, 

Terrance’s brother,

2 knew Thompson, Thomas, and Curtis. 

Terrance sold marijuana and always carried a large amount of money. In October 

2010, Roosevelt saw Thompson at Terrance’s apartment. On that occasion, there was 

some “weed smoking going on.” 

Between 9:00 and 10:00 on November 10, 2010, Terrance picked up Roosevelt 

from their parents’ home. They went to a car wash to clean the engine in Terrance’s car, 

and then to a body shop where they remained for a few hours. While at the body shop, 

Terrance spoke and texted on his phone. When they left the body shop, Terrance and 

Roosevelt went to Terrance’s apartment. 

About 3:40 to 3:50 p.m., Terrance told Roosevelt that he had received a phone call 

and Thompson was coming up. Terrance opened the door, stuck his head out, and left the 

door open. Shortly thereafter, Thompson entered the apartment. When Thompson 

entered, Roosevelt was standing in the kitchen and Terrance was standing “pretty much 

directly in front of the doorway.” Thompson looked straight ahead at Terrance. 

Roosevelt said to Thompson, “What’s up brother man?” Thompson did not 

respond. Thompson turned around and ran out of the apartment. Terrance said, “Hey,” 

and put his hands in the air. Roosevelt heard a gunshot that came from outside of the 

apartment, and Terrance dropped to the floor. Roosevelt was unsure if Thompson had 

run all the way out of the apartment when the shot was fired. Thompson did not make a 

“gesture” as if to cover himself when the shot went off, did not stop to say anything to 

Roosevelt or Terrance, and did not return. Roosevelt did not know who fired the 

gunshot.

Within seconds, Thomas entered the apartment and closed the door. Thomas had 

a gun in his hand and immediately ran to Terrance. Thomas bent over Terrance and 

 

2 Because Terrance and Roosevelt Scott share a last name, we will refer to them by 

their first names for clarity.
5

asked, “Where’s the money?” Terrance said, “Huh.” Roosevelt heard a second gunshot. 

Terrance suffered a fatal gunshot wound to his head. 

Thomas rose up and extended his hand with the gun. Roosevelt lunged and 

grabbed his phone from the counter, but Thomas took the phone and put his gun to the 

side of Roosevelt’s head. Thomas asked Roosevelt, “Where is the money?” Roosevelt 

took a couple of steps towards the stove and did not say anything. Then, Roosevelt 

struck the hand in which Thomas was holding the gun, and they wrestled. Thomas 

pushed off Roosevelt and put the gun to his head. Thomas said, “Fuck you, you bull 

shit’in you gon’ die.” Thomas then shot Roosevelt in his left eyebrow. Roosevelt fell to 

the floor and “played dead.” 

Roosevelt heard kitchen cabinets being opened and closed. He then heard Thomas 

“yanking” on the doorknob. Roosevelt’s legs were in front of the door, and Thomas was 

unable to open the door. Roosevelt heard Thomas break a window, and saw him crawl 

out of the window. 

A Los Angeles County Sheriff’s Department deputy recovered Terrance’s cell 

phone from the floor next to his body. The cell phone contained text messages between 

“T”

3 (Terrance) and “Tommy” (Thompson) between 11:32 a.m. and 3:20 p.m. on 

November 10, 2010, concerning Thompson going to Terrance’s apartment and when 

Terrance would be home. For example, at 3:18 p.m., Terrance sent Thompson a message 

stating, “At the pad now.” At 3:20 p.m., Thompson sent Terrance a message stating, 

“Alright give me like 10min or 5mins Ima be leaven dis drive thru.” 

DISCUSSION

I. Sufficiency of the Evidence Supporting Thompson’s Convictions

Thompson contends that insufficient evidence supports his burglary conviction 

and, thus, his felony murder conviction because there is insufficient evidence to show 

that he was the “set up” man for the crimes—i.e., that he gained entry for Thomas into 

 

3 Terrance went by the nickname “T.” 
6

Terrance’s apartment so that Thomas could rob Terrance. Sufficient evidence supports 

Thompson’s convictions.

A. Standard of Review

“‘When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.’ (People v. Lindberg (2008) 45 Cal.4th 1, 

27 [82 Cal.Rptr.3d 323, 190 P.3d 664].) We determine ‘whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. 

Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) In so doing, a 

reviewing court ‘presumes in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence.’ (People v. Kraft (2000) 23 Cal.4th 978, 

1053 [99 Cal.Rptr.2d 1, 5 P.3d 68].)” (People v. Edwards (2013) 57 Cal.4th 658, 715.)

“Substantial evidence includes circumstantial evidence and the reasonable 

inferences flowing therefrom.” (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064.) 

“We ‘must accept logical inferences that the jury might have drawn from the 

circumstantial evidence. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 

327, 357-358.) In determining whether substantial evidence supports a conviction, “we 

do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary 

to the verdict, or reevaluate the credibility of witnesses.” (People v. Little (2004) 115 

Cal.App.4th 766, 771, citing People v. Jones (1990) 51 Cal.3d 294, 314.)

B. Application of Relevant Principles

The parties to a crime are principals and accessories. (§ 30.) “All persons 

concerned in the commission of a crime, whether it be felony or misdemeanor, and 
7

whether they directly commit the act constituting the offense, or aid and abet in its 

commission . . . are principals in any crime so committed.” (§ 31.)

“A person aids and abets the commission of a crime when he or she, (i) with 

knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose 

of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, 

aids, promotes, encourages or instigates the commission of the crime.” (People v. 

Cooper (1991) 53 Cal.3d 1158, 1164; People v. Beeman (1984) 35 Cal.3d 547, 561.) 

“An aider and abettor’s derivative liability for a principal’s criminal act has two distinct 

prongs: First, the aider and abettor is liable for the particular crime that to his knowledge 

his confederates are contemplating. Second, the aider and abettor is also liable for the 

natural and probable consequences of any criminal act he knowingly and intentionally 

aids and abets, in addition to the specific and particular crime he and his confederates 

originally contemplated.” (People v. Brigham (1989) 216 Cal.App.3d 1039, 1052.)

“Mere presence at the scene of a crime which does not itself assist its commission 

or mere knowledge that a crime is being committed and the failure to prevent it does not 

amount to aiding and abetting.” (In re Michael T. (1978) 84 Cal.App.3d 907, 911;

People v. Richardson (2008) 43 Cal.4th 959, 1024.) “However, ‘[a]mong the factors 

which may be considered in making the determination of aiding and abetting are: 

presence at the scene of the crime, companionship, and conduct before and after the 

offense.’ [Citation.]” (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) “‘Whether 

defendant aided and abetted the crime is a question of fact, and on appeal all conflicts in 

the evidence and reasonable inferences must be resolved in favor of the judgment.’ 

[Citation.]” (Ibid.)

There is evidence that shows, and the prosecutor argued to the jury, that 

Thompson was not the shooter. Accordingly, Thompson’s culpability, if any, was as an 

aider and abettor. Thompson contends that the evidence is insufficient to establish his 

culpability as an aider and abettor because the evidence does not show that he had an 

agreement or plan with Thomas to rob Terrance or that he even had any communication 

with Thomas. Evidence was adduced at trial from which a reasonable juror could infer 
8

Thompson’s involvement in the burglary and felony murder. That evidence shows that 

Thompson and Thomas knew each other—Thomas dated Thompson’s mother. On the 

day of the shooting, Thompson exchanged a number of text messages with Terrance 

about arranging to meet at Terrance’s apartment. When Thompson entered the 

apartment, he looked straight ahead at Terrance. When Roosevelt greeted Thompson, 

Thompson said nothing. Immediately after entering Terrance’s apartment, and just 

before the first shot was fired, Thompson turned to leave the apartment despite having 

exchanged numerous texts with Terrance over several hours to arrange to meet with him. 

Thompson did not make an attempt to cover himself when the first shot was fired, 

suggesting that he was not surprised when a gun was fired in his direction from close 

range. He did not stop and say anything to Terrance or Roosevelt on his way out of the 

apartment or return to the apartment to aid Terrence or Roosevelt. Such evidence is 

sufficient for the jury to conclude that Thompson arranged for Thomas’s entry into 

Terrance’s apartment so that Thomas could rob Terrance and thus was an aider and 

abettor.

II. The Jury’s True Findings on Thomas’s Section 12022.53, Subdivisions (b)

Through (d) Firearm Allegations for His Burglary Conviction

Thomas contends that the jury’s true findings on the section 12022.53, 

subdivisions (b) through (d) firearm allegations with respect to his burglary conviction 

must be reversed because burglary is not an offense to which section 12022.53 applies. 

Respondent properly concedes the contention, but argues that we may instead impose and 

stay a firearm allegation under section 12022.5, subdivision (a) because the allegations 

under section 12022.53 gave Thomas notice that his conduct could also violate section 

12022.5. 
9

Section 12022.53, subdivision (a) lists the felonies to which the provisions of 

subdivisions (b), (c), and (d) of section 12022.53 apply.4 Burglary is not among the 

listed felonies. Accordingly, the jury’s true finding on the section 12022.53, subdivision 

(b) through (d) allegations as to Thomas’s burglary conviction were improper.

When an appellate court overturns a firearm enhancement that is not supported by 

sufficient evidence or that does not apply to the offense of which the defendant was 

convicted, it may nevertheless impose a lesser included firearm enhancement that is 

supported by substantial evidence and applies to the offense of conviction. (People v. 

Fialho (2014) 229 Cal.App.4th 1389, 1394-1397; People v. Allen (1985) 165 Cal.App.3d 

616, 627; see People v. Strickland (1974) 11 Cal.3d 946, 959-961.) With respect to the 

commission of a felony listed in subdivision (a) of section 12022.53, subdivision (b) of 

that section applies to a person who “personally uses a firearm,” subdivision (c) applies 

to a person who “personally and intentionally discharges a firearm,” and subdivision (d) 

applies to a person who “personally and intentionally discharges a firearm and 

proximately causes great bodily injury . . . or death.”5 Section 12022.5, subdivision (a)6

 

4 Section 12022.53, subdivision (a) provides, “This section applies to the following 

felonies: [¶] (1) Section 187 (murder). [¶] (2) Section 203 or 205 (mayhem). [¶] (3) 

Section 207, 209, or 209.5 (kidnapping). [¶] (4) Section 211 (robbery). [¶] (5) Section 

215 (carjacking). [¶] (6) Section 220 (assault with intent to commit a specified felony). 

[¶] (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or 

firefighter). [¶] (8) Section 261 or 262 (rape). [¶] (9) Section 264.1 (rape or sexual 

penetration in concert). [¶] (10) Section 286 (sodomy). [¶] (11) Section 288 or 288.5 

(lewd act on a child). [¶] (12) Section 288a (oral copulation). [¶] (13) Section 289 

(sexual penetration). [¶] (14) Section 4500 (assault by a life prisoner). [¶] (15) Section 

4501 (assault by a prisoner). [¶] (16) Section 4503 (holding a hostage by a prisoner). [¶] 

(17) Any felony punishable by death or imprisonment in the state prison for life. [¶] (18) 

Any attempt to commit a crime listed in this subdivision other than an assault.”

5 Section 12022.53, subdivisions (b), (c), and (d) provide:

“(b) Notwithstanding any other provision of law, any person who, in the 

commission of a felony specified in subdivision (a), personally uses a firearm, shall be 

punished by an additional and consecutive term of imprisonment in the state prison for 10 

years. The firearm need not be operable or loaded for this enhancement to apply.
10

applies to a person “who personally uses a firearm in the commission of a felony.” A 

person cannot commit conduct that violates section 12022.53, subdivisions (b) through 

(d) without also committing conduct that violates section 12022.5, subdivision (a). That 

is, a person cannot “personally use[] a firearm,” “personally and intentionally discharge[] 

a firearm,” or “personally and intentionally discharge[] a firearm and proximately cause[]

great bodily injury . . . or death” in violation of subdivisions (b), (c), and (d), 

respectively, of section 12022.53 without also “personally using” a firearm in violation of 

subdivision (a) of section 12022.5. Accordingly, we order the jury’s true findings on the 

section 12022.53, subdivisions (b) through (d) enhancements on Thomas’s burglary 

conviction reduced to a lesser included violation of section 12022.5, subdivision (a), and 

remand the matter for resentencing on the lesser included enhancement. (People v. Allen, 

supra, 165 Cal.App.3d at p. 627.)

III. Section 654 Stay of The Burglary and Robbery Sentences and Related

Firearm Enhancement

Thomas contends that his concurrent sentences for his first degree burglary and 

robbery convictions should have been stayed under section 654 because those offenses

 

“(c) Notwithstanding any other provision of law, any person who, in the 

commission of a felony specified in subdivision (a), personally and intentionally 

discharges a firearm, shall be punished by an additional and consecutive term of 

imprisonment in the state prison for 20 years.

“(d) Notwithstanding any other provision of law, any person who, in the 

commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) 

of Section 26100, personally and intentionally discharges a firearm and proximately 

causes great bodily injury, as defined in Section 12022.7, or death, to any person other 

than an accomplice, shall be punished by an additional and consecutive term of 

imprisonment in the state prison for 25 years to life.”

6 Section 12022.5, subdivision (a) provides, “Except as provided in subdivision (b)

[applicable to the use of an assault weapon or machine gun], any person who personally 

uses a firearm in the commission of a felony or attempted felony shall be punished by an 

additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, 

unless use of a firearm is an element of that offense.”
11

were the underlying felonies for his first degree felony murder conviction. Thompson 

makes the same contention with respect to the concurrent sentence for his first degree 

burglary conviction and the accompanying enhancement for firearm use by a principal

under section 12022, subdivision (a)(1). Respondent agrees, as do we.

The trial court instructed the jury that the underlying felonies for the prosecution’s 

felony murder theory as to Thomas and Thompson were first degree residential burglary 

and/or first degree residential robbery. The jury convicted Thomas of first degree felony 

murder and, as relevant, first degree burglary and first degree residential robbery. The 

trial court sentenced Thomas to concurrent, four-year, middle term sentences for his 

burglary and robbery convictions.

7 The jury convicted Thompson of first degree felony 

murder and first degree residential burglary and found true the allegation that a principal 

used a firearm. The trial court sentenced Thompson to a consecutive, four-year, middle 

term sentence for his burglary conviction and a concurrent one-year term for the firearm 

enhancement. 

When a defendant has been found guilty of first degree murder based on a felonymurder theory, section 654 requires that the punishment for the underlying felony be 

stayed. (People v. Montes, supra, 58 Cal.4th at p. 898; People v. Boyd (1990) 222 

Cal.App.3d 541, 575-576.) Section 654 also requires that the punishment for any 

enhancement attached to the underlying felony be stayed. (People v. Montes, supra, 58 

Cal.4th at p. 898; People v. Calles, supra, 209 Cal.App.4th at p. 1221.) Because 

Thomas’s concurrent sentences for his burglary and robbery convictions were the 

underlying felonies for his first degree felony murder conviction, the trial court should 

have stayed imposition of sentence for those convictions under section 654. Likewise, 

because Thompson’s burglary conviction was the underlying felony for his first degree 

felony murder conviction, the trial court should have stayed imposition of sentence for 

 

7 The trial court properly stayed, under section 654, the section 12022.53, 

subdivisions (b) through (d) firearm enhancements on Thomas’s burglary and robbery 

convictions. (People v. Montes (2014) 58 Cal.4th 809, 898; People v. Calles (2012) 209 

Cal.App.4th 1200, 1221 [“When the base term of a sentence is stayed under section 654, 

the attendant enhancements must also be stayed”].)
12

that conviction and for the attached section 12022, subdivision (a)(1) enhancement for 

use of a firearm by a principal. We order Thomas’s sentences for his burglary and 

robbery convictions and Thompson’s sentences for his burglary and section 12022, 

subdivision (a)(1) firearm enhancement stayed under section 654. We further order that 

Thomas’s and Thompson’s respective abstracts of judgment be modified accordingly.

IV. Thomas’s Parole Revocation Fine

Thomas argues that his stayed $280 parole revocation restitution fine under 

section 1202.45 must be reversed because his sentence does not include a parole period. 

Respondent rightly agrees. 

When a defendant’s sentence does not allow for parole, an additional parole 

revocation restitution fine under section 1202.45 is improper. (People v. Oganesyan

(1999) 70 Cal.App.4th 1178, 1185.) A parole revocation restitution fine under section 

1202.45 is mandatory, however, in every case in which there is at least one count with a 

determinate sentence, even when the defendant is sentenced to death on other counts. 

(People v. Brasure (2008) 42 Cal.4th 1037, 1075.) Although a parole revocation 

restitution fine must be imposed in cases in which there is one count with a determinate 

sentence, such a fine may not be imposed when the determinate sentence has been stayed 

under section 654. (People v. Pearson (1986) 42 Cal.3d 351, 361 [“section 654 prohibits 

the use of a conviction for any punitive purpose if the sentence on that conviction is 

stayed”]; People v. Cruz (2012) 207 Cal.App.4th 664, 672-673, fn. 8 [at least for ex post 

facto purposes, “imposition of a parole revocation restitution fine pursuant to section 

1202.45 is viewed as punitive”]; see People v. Hannah (1999) 73 Cal.App.4th 270, 274-

275 [a trial court may not impose a section 1202.45 fine if it suspended the state prison 

sentence and placed the defendant on probation because the defendant was “presently not 

subject to a parole period and will not be absent a revocation of her probation and 

commitment to prison”]; see also People v. Hanson (2000) 23 Cal.4th 355, 361-362 [the 

restitution fine under section 1202.4, subdivision (b) is a criminal penalty or punishment]; 

People v. Le (2006) 136 Cal.App.4th 925, 933 [section 654’s ban on multiple 
13

punishments is violated if the trial court considers a sentence that should have been 

stayed pursuant to section 654 in calculating the restitution fine under the formula 

provided by section 1202.4, subdivision (b)(2)].)

In this case, the trial court sentenced Thomas to a combination of life and 

determinate terms. The trial court sentenced Thomas to life without the possibility of 

parole for his felony murder conviction, to life with the possibility of parole for his 

attempted murder conviction, and two concurrent four-year terms for his burglary and 

robbery convictions. The trial court imposed consecutive 25-years-to-life terms on 

Thomas’s murder and attempted murder convictions for his section 12022.53 firearm 

enhancements. 

Thomas’s sentence, as imposed, included determinate terms for his burglary and 

robbery convictions. If those determinate terms had been properly imposed—i.e., if 

neither sentence had been subject to a section 654 stay, then the trial court properly could 

have imposed a section 1202.45 parole revocation restitution fine under People v. 

Brasure, supra, 42 Cal.4th at page 1075. Because, however, we held above that 

Thomas’s sentences for his burglary and robbery convictions should have been stayed

under section 654, Thomas’s sentence did not provide for a parole period and a section 

1202.45 parole revocation restitution fine was improper. (People v. Oganesyan, supra,

70 Cal.App.4th at p. 1185; People v. Pearson, supra, 42 Cal.3d at p. 361; People v. Cruz, 

supra, 207 Cal.App.4th at pp. 672-673, fn. 8; see People v. Hannah, supra, 73 

Cal.App.4th at pp. 274-275; see also People v. Hanson, supra, 23 Cal.4th at pp. 361-362; 

People v. Le, supra, 136 Cal.App.4th at p. 933.) Accordingly, the stayed $280 section 

1202.45 parole revocation restitution fine was not properly imposed and is ordered 

stricken from the Thomas’s abstract of judgment.

V. Thomas’s Abstract of Judgment

Thomas argues that his abstract of judgment must be modified to reflect that he 

was sentenced to life with, not without, the possibility of parole for his attempted murder 

conviction and to correct the spelling of his middle name. Respondent agrees that the 
14

abstract of judgment must be modified to reflect a term of life with the possibility of 

parole for Thomas’s attempted murder conviction, but argues correctly that the record is 

insufficiently clear to determine the correct spelling of Thomas’s middle name. 

Respondent argues that the trial court should determine the correct spelling of Thomas’s 

middle name when it decides other issues on remand. 

The sentence for attempted willful, deliberate, and premeditated murder is life 

with the possibility of parole. (§ 664, subd. (a).) In its oral pronouncement of sentence, 

the trial court correctly sentenced Thomas to life with the possibility of parole for his 

attempted murder conviction. Thomas’s abstract of judgment, however, erroneously 

reflects a sentence of life without the possibility of parole for Thomas’s attempted murder 

conviction. We order the abstract of judgment modified to correct this apparent clerical 

error. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)

Thomas’s abstract of judgment states Thomas’s middle name as “Jerrono.” 

Thomas contends that his middle name is “Jerrone.” He states that he was booked and 

charged in the information under the middle name “Jerrone,” and that he stated that 

“Jerrone” was his true middle name at his arraignment. 

Respondent argues that Thomas has not demonstrated that the abstract of 

judgment incorrectly spells Thomas’s name. As respondent correctly states, the 

probation reports lists Thomas’s middle name as “Jerrono” and the probation report lists 

the following aliases, among others, that Thomas has used: “Marlon Jarron Thomas,”

“Marlon Jerome Thomas,” “Marlon Jerrome Thomas,” “Marlon Jerron Thomas,”

“Marlon Jeron Thomas,” and “Marlon Jerrone Thomas.” We agree with respondent that 

the true spelling of Thomas’s middle name cannot be determined from the record on 

appeal. The trial court is to determine the true spelling of Thomas’s middle name on 

remand.
15

DISPOSITION

The jury’s true findings on the section 12022.53, subdivisions (b) through (d) 

firearm allegations as to Thomas’s burglary conviction are reduced to a lesser included 

violation of section 12022.5, subdivision (a), and the matter is remanded for resentencing. 

Thomas’s sentences for his burglary and robbery convictions are stayed under section 

654 and his abstract of judgment is ordered modified accordingly. Thomas’s abstract of 

judgment is further ordered modified to strike the $280 parole revocation restitution fine 

and to reflect that Thomas was sentenced to life with the possibility of parole for his 

attempted murder conviction. In connection with the remand for resentencing on the 

section 12022.5, subdivision (a) true finding, the trial court is to determine the correct 

spelling of Thomas’s name. Thomas’s judgment is otherwise affirmed.

Thompson’s murder and burglary convictions are affirmed. The sentence for 

Thompson’s burglary conviction is stayed under section 654, and his abstract of 

judgment is ordered modified accordingly.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

MOSK, J.

We concur:

TURNER, P. J.

GOODMAN, J.

 

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.