Filed 8/28/24 P. v. Thomas CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

THE PEOPLE,

Plaintiff and Respondent,

v.

RODERICK THOMAS,

Defendant and Appellant.

A167755

(San Francisco City & County

Super. Ct. No.13024835,

SCN221214-02)

At a Penal Code1 section 1172.6 hearing, the trial court sentenced 

Roderick Thomas to 13 years in prison, which included two years for an 

enhancement imposed under section 12022, subdivision (d). Thomas argues, 

and we agree, that the enhancement was unauthorized and not supported by 

the evidence. We strike the section 12022, subdivision (d) enhancement. In 

all other respects, we affirm.

I. BACKGROUND2

Thomas was involved in a shooting in the home of a neighbor from 

whom he sometimes bought marijuana. On the evening of the crime, Thomas 

contacted his neighbor, D’Andre W., to buy a much larger amount of 

1 All statutory references are to the Penal Code. 

2 We incorporate by reference our nonpublished opinions in Thomas’s 

prior appeals, People v. Thomas (Feb. 29, 2016, A142916) (Thomas I) and 

People v. Thomas (May 18, 2021, A159153) (Thomas II). 
2

marijuana than usual. D’Andre W. had gone out with some friends and told 

Thomas to meet him back at his house. Thomas went into the house with 

two other men, and they rummaged through D’Andre W.’s property. When 

D’Andre W. returned with his friends, one of the friends, Jahmad Karriem,

was fatally shot by an unknown person. One of Thomas’s associates said it 

was Thomas who shot Karriem. Thomas, on the other hand, claimed he was 

caught between Karriem and the shooter as shots flew and that the others 

coerced him into letting them in to D’Andre W.’s house so they could steal 

from him. 

A. Thomas Is Prosecuted for Felony Murder and Pleads Guilty to 

Manslaughter

Thomas was convicted by a jury of burglary and felony murder in 2014. 

In Thomas I, we reversed, holding the trial court prejudicially erred when it 

failed to instruct the jury on the defense of duress. (Thomas I, supra, 

A142916.) 

On remand, the People again charged Thomas with burglary and felony 

murder. In 2016, he pled guilty to voluntary manslaughter. The trial court 

sentenced Thomas to 19 years in prison based on the upper term for 

voluntary manslaughter plus enhancements for a prior felony under 

section 667, subdivision (a)(1) and for knowledge of an armed principal in the 

commission of a specified drug offense under section 12022, subdivision (d).

The court dismissed the remaining counts and allegations. 

Thomas petitioned the trial court for resentencing under former 

section 1170.95, which authorized resentencing of individuals convicted of 

felony murder or murder under a natural and probable consequences theory.

The trial court denied his petition, on the basis that the statute did not apply

to a manslaughter conviction. We affirmed. (Thomas II, supra, A159153.) 
3

B. Thomas Is Resentenced Under Section 1172.6

Following Thomas II, the Legislature amended section 1170.95 and

renumbered it as section 1172.6, which is how we refer to it from here on. 

(Torres v. Superior Court (2023) 94 Cal.App.5th 497, 502, fn. 1.) The 

amendments were “to include defendants . . . convicted of manslaughter” who 

“accepted a plea in lieu of a trial in which [they] could have been convicted of 

murder.” (Id. at p. 503.) Thomas again petitioned for resentencing under 

section 1172.6. This time, the People agreed that he was eligible under the 

amended statute. 

The parties waived a resentencing hearing and stipulated that Thomas 

was eligible to have the manslaughter conviction vacated. The manslaughter 

charge was redesignated as a first degree burglary, again with enhancements 

under section 667, subdivision (a)(1) and section 12022, subdivision (d). 

The court sentenced Thomas to the upper term of six years in prison for 

the burglary. The court found true the two enhancements in accord with 

Thomas’s admission as part of his plea. For the prior felony conviction (§ 667, 

subd. (a)(1)), the court imposed five consecutive years, and for the arming 

enhancement (§ 12022, subd. (d)), the court imposed an additional two

consecutive years. 

Defense counsel objected that there was no basis for the section 12022,

subdivision (d) enhancement because the crime did not involve a requisite 

drug offense specified in subdivision (c) of that section. (People v. Overten

(1994) 28 Cal.App.4th 1497, 1503.) In response to counsel’s objection, the 

court asked whether Thomas was “going [to D’Andre W.’s house] to . . . buy 

drugs . . . ?” Defense counsel responded, “[H]e thought he was going to buy 

marijuana. [But] I haven’t seen any argument by the DA that that’s the 

offense in question.” The prosecutor argued that the enhancement should 
4

remain in place because the parties had stipulated to the enhancement and

“there was very much a drug element to what was taking place.” The court 

agreed: “[T]hat’s how the whole thing started, according to the preliminary 

hearing transcript, [when Thomas] called [D’Andre W. and] said, ‘Hey I’m 

going to buy more drugs than I ever bought from you before.’ ” Neither the 

prosecutor nor the trial court identified a drug offense specified in

section 12022, subdivision (c) that would support the enhancement. 

II. DISCUSSION

Thomas contends the trial court prejudicially erred by imposing the 

section 12022, subdivision (d) enhancement because the evidence suggests 

only that he was involved in the potential sale of marijuana. Because the 

sale of marijuana is not an offense listed in section 12022, subdivision (c),

which may support that enhancement, we agree. As we will explain, 

section 1172.6 does not permit a court to impose a sentencing enhancement 

that was not proven in the underlying proceedings. (People v. Arellano (2024) 

16 Cal.5th 457, 464 (Arrellano).)3

A. Legal Background

Where a manslaughter conviction is vacated under section 1172.6, “any 

allegations and enhancements attached to the conviction” shall also be 

vacated and the defendant shall be resentenced on any remaining charges “as 

if the [defendant] had not previously been sentenced.” (§ 1172.6, subd. (d)(3)

& (1).) Where, as here, murder was “charged ‘generically,’ without any 

finding on the ‘target offense or underlying felony,’ ” then “the conviction 

3 Thomas argued when the court imposed this new sentence, and 

continues to argue here, that an underlying drug offense must be directly 

charged to support a section 12022, subdivision (d) enhancement. We need 

not address this issue because there is no evidence of a qualifying drug 

offense, whether charged or not.
5

‘shall be redesignated as the target offense or underlying felony for 

resentencing purposes’ ” pursuant to section 1172.6, subdivision (e). 

(Arellano, supra, 16 Cal.5th at p. 469.)

In Arellano, the Supreme Court recently held that “section 1172.6, 

subdivision (e) does not permit a court to impose a sentencing enhancement”

unless the enhancement was previously “pled and either proven to the trier of 

fact or by the defendant’s admission in open court.” (Arellano, supra, 

16 Cal.5th at p. 464.) The statute does not authorize courts “to litigate and 

then impose” new enhancements “during the redesignation and resentencing 

phase.” (Id. at p. 472.)4 

Whether the trial court properly imposed the section 12022, 

subdivision (d) enhancement here turns on the interpretation of the 

enhancement provision and of section 1172.6, issues we review de novo. 

(People v. Fouse (2024) 98 Cal.App.5th 1131, 1145; People v. Johnson (2022) 

86 Cal.App.5th 258, 262.)

B. The Enhancement Was Not Proven in the Underlying 

Proceedings

Arellano suggests that an enhancement proven to the trier of fact in the 

underlying proceedings could be reimposed under section 1172.6, 

subdivision (e). (Arellano, supra, 16 Cal.5th at pp. 464, 471–472.) But here, 

the section 12022, subdivision (d) enhancement was not proven.

Section 12022, subdivision (d) requires the trial court to impose a oneto three-year sentencing enhancement in situations where a defendant “is not 

personally armed with a firearm” but, with knowledge that another principal 

is armed, “is a principal in the commission of an offense or attempted offense 

4 Arellano expressed “no view” whether it would be correct to impose

“an enhancement that had previously been pled and proved.” (Arellano, 

supra, 16 Cal.5th at p. 473, fn. 4.) 
6

specified in subdivision (c).” Subdivision (c) lists specific Health and Safety 

Code violations involving drugs that may support the enhancement. 

The trial court assumed evidence of one of “these drugs sections” was 

present. But the court referred only to evidence that Thomas and his 

associates wanted to buy marijuana from D’Andre W. The People never 

explained how buying marijuana could qualify as “the offense in question.” 

Indeed, it could not. As Thomas explains in his appellate briefing, the Health 

and Safety Code violations listed in section 12022, subdivision (c) all pertain 

to drugs other than marijuana or otherwise do not apply factually in this 

case.

5

The People assert without analysis that the sale of marijuana is an 

offense enumerated in section 12022, subdivision (c). But they fail to explain 

the assertion or identify any particular section of the Health and Safety Code 

that applies in this case. Cannabis-related provisions are set forth at 

sections 11357 through 11362.9 of the Health and Safety Code; section 12022, 

subdivision (c) does not list any of these sections among those supporting the 

enhancement.

Moreover, there was never any finding, apart from Thomas’s admission 

in his plea discussed below, that the section 12022, subdivision (d) 

enhancement was factually supported. Indeed, the jury rejected this 

5 Cannabis is a Schedule I controlled substance identified in Health and 

Safety Code section 11054, subdivision (d)(13). The offenses listed in 

section 12022, subdivisions (c) and (d) either do not include cannabis among 

the specified controlled substances (Health & Saf. Code, §§ 11351, 11351.5, 

11352, 11366.6, 11378, 11378.5, 11379, 11379.5) or clearly do not apply here 

for other reasons (id., §§ 11366.5 [owner, lessee, etc. making space available 

for unlawful purposes related to controlled substances] & 11379.6 [chemically 

extracting or synthesizing controlled substances]).
7

enhancement at trial. The enhancement was not supported because it was

unproven and unsupported by the evidence.

C. The Enhancement Was Not Proven During Thomas’s Plea

Arellano suggests that an enhancement “proven . . . by the defendant’s 

admission in open court” could be reimposed at resentencing under 

section 1172.6. (Arellano, supra, 16 Cal.5th at p. 464.) But in entering his 

plea, Thomas admitted only that he knew a principal was armed “in the 

course of this manslaughter crime.” The record does not mention any drug 

offense that would trigger subdivisions (c) and (d) of section 12022. Under 

these circumstances, the enhancement “was not proven” during the plea

“because the trial court failed to obtain an adequate admission.” (People v. 

Bryant (1992) 10 Cal.App.4th 1584, 1595.)

The People contend that the trial court properly “referenc[ed]” 

Thomas’s plea “in conjunction with evidence presented during the 

preliminary hearing” to find the enhancement true. But the evidence 

concerned a marijuana transaction, which does not support the enhancement. 

The People do not contend the plea could justify the enhancement without a 

factual basis in the record, nor claim it was binding once Thomas’s 

manslaughter conviction and associated enhancements were vacated. (See 

§ 1172.6, subd. (d)(3).) The enhancement was not proven by Thomas’s plea.

D. Conclusion and Remaining Issues

While the trial court ostensibly made a finding that the record 

supported the section 12022, subdivision (d) enhancement, the finding was 

based on an incorrect assumption about the offenses encompassed within the 

statute. The enhancement was not “proven” in the underlying proceedings 

because there was no evidence of the offenses specified in the statute and 

Thomas did not admit to any such offense. (Arellano, supra, 16 Cal.5th at 
8

p. 464.) The enhancement was unauthorized and we must strike it. (People 

v. McGee (1993) 15 Cal.App.4th 107, 117.)

Thomas asks us to simply vacate the enhancement or to remand for 

possible imposition of the section 12022, subdivision (a)(1) enhancement. 

While it appears that this enhancement would apply to the facts,6 we will not 

remand because the trial court is not authorized to impose it on this record. 

This enhancement was dismissed when Thomas entered his manslaughter 

plea, and the parties proceeded under section 1172.6, subdivision (d)(2) and 

waived a resentencing hearing. In the posture of this case the enhancement

is neither pled nor proved in the underlying proceedings as required by 

Arellano. (Arellano, supra, 16 Cal.5th at pp. 464–465.) The statute provides 

no mechanism for the parties to withdraw their stipulation and now request 

a resentencing hearing to prove the section 12022, subdivision (a)(1) 

enhancement was supported. 

III. DISPOSITION

The sentence is modified to strike the enhancement imposed under 

section 12022, subdivision (d). In all other respects, the judgment is 

affirmed. The superior court is directed to prepare an amended abstract of 

judgment reflecting the sentence as modified and to forward a certified copy

to the Department of Corrections and Rehabilitation.

6 The enhancement applies to a felony principal if another principal 

was armed with a firearm; it carries an additional term of one year, versus 

the two years imposed by the trial court under section 12022, subdivision (d). 
9

SIGGINS, J.*

WE CONCUR:

BANKE, P. J.

LANGHORNE WILSON, J.

A167755

People v. Thomas

* Retired Presiding Justice of the Court of Appeal, First Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.