Opinion
C074101
08-16-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS JENKINS THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SF085385A)
The trial court denied defendant Thomas Jenkins Thomas's petition for recall of sentence under the Three Strikes Reform Act of 2012 (the Act) based on a finding that resentencing him would pose an unreasonable risk of danger to public safety. (Pen. Code, § 1170.126; further unidentified section references are to the Penal Code.) The court based its dangerousness finding on defendant's prior convictions, which included crimes of violence, his commitment offenses, which involved a firearm, and defendant's recent conduct while incarcerated, including a rule violation for possessing a cell phone.
Defendant contends on appeal that the Act is unconstitutionally vague because the term "unreasonable risk of danger to public safety" is not adequately defined. He also argues that even if sufficiently defined, the trial court abused its discretion in finding that he posed an unreasonable risk of danger to public safety, and that, at a minimum, he is entitled to resentencing on at least two of his three commitment convictions.
The People contest the trial court's eligibility finding, arguing the record of conviction shows that defendant was armed with a firearm when he committed the current offenses. We agree with the People and conclude that defendant was not eligible to be resentenced under the Act. Given this conclusion, we need not reach defendant's arguments concerning the trial court's dangerousness determination.
FACTS AND PROCEEDINGS
In 2003, a jury convicted defendant of voluntary manslaughter as a lesser included offense of murder (§ 192, subd. (a)), later reduced by the court to involuntary manslaughter (§ 192, subd. (b), count 1), negligent discharge of a firearm (§ 246.3, count 2), and being a felon in possession of a firearm (former § 12021, subd. (a)(1), count 3). The jury found not true two firearm use enhancements attached to count 1. (§ 12022.53, subd. (b) (personal use) & § 12022.5, subd. (a)(1) (principle use).) The jury also found that defendant had suffered two prior convictions--robbery (§ 211), and assault with a deadly weapon or with force likely to cause great bodily injury (§ 245, subd. (a)). Based on defendant's prior convictions, the trial court sentenced him to three terms of 25 years to life under the Three Strikes law (§§ 667, subd. (e)(2), 1170.12, subd. (c)(2)), to be served consecutively, and an additional term of five years each for his two prior serious and/or violent felony convictions (§ 667, subd. (a)). Defendant appealed.
This court affirmed defendant's convictions in an unpublished opinion. (People v. Thomas (July 12, 2005, C046357) [nonpub. opn.].) A summary of the pertinent facts surrounding defendant's current offenses, taken from this court's opinion affirming his convictions, follows:
Late in the evening on March 21, 2002, Jeanette Williams, James Gorman and Steve Hillary drove around in Gorman's car while drinking alcohol. While Gorman drove Williams home, the three saw defendant walking. Defendant had previously been married to Williams and they had children together. Defendant had also known Gorman and Hillary for many years.
Defendant wanted a coat he left in Williams's car so he rode with the threesome to Williams's mother's house. Defendant also demanded that Williams repay him money she owed him. Gorman began taunting defendant, and, at some point, Hillary pushed defendant in the back of the head a couple of times.
Upon arriving at Williams's mother's house, Williams went inside for a short time. When she came outside, defendant was walking away and Gorman and Hillary were getting back into the car, laughing with one another and making comments about defendant. Williams gave defendant his coat and walked away; she then got back into the car with Gorman and Hillary. The three followed defendant. Gorman and Hillary teased defendant until he reached his nephew's home and went inside.
Gorman drove on to Richard Black's house. After a police officer passed by in a patrol car, Williams got out of the car to leave because she was on parole and not supposed to be in the neighborhood. Hillary, who was intoxicated, accompanied her down the street. When they were about two houses down from Black's house, Williams saw defendant approaching them. They turned to face him. Defendant again demanded his money from Williams, but she told him she did not have any money. Hillary and defendant began arguing, and defendant suddenly punched Hillary in the face. Hillary fell straight back and hit his head on the sidewalk. He died two days later.
Williams ran back to Black's house, banged on the door and screamed until Black opened the door. After she ran to the back of the house, Black and Gorman went outside on the porch. Defendant pointed a revolver at Gorman's head, threatening to kill him. After Gorman told him to "[g]o ahead, shoot," and Black ordered defendant to put it away, defendant shot into the air and then ran.
According to defendant's own testimony, he admitted going to his nephew's house to obtain a gun. He stayed there for about 20 minutes, and then got a ride to Black's house to find Williams and get the money she owed him. He had the gun in case he encountered Gorman who might be armed. After confronting Williams about the money, defendant and Hillary exchanged words. Defendant admitted throwing the first punch because he reasoned Hillary would otherwise beat him in a fight. Although he admitted hitting Hillary in the face, defendant denied hitting Hillary in the forehead with the gun. Defendant swung " 'with mostly all [his] might . . . throwing it hard,' and hit Hillary 'solid,' " claiming he was under the influence of rock cocaine at the time.
While defendant admitted he pulled out the gun and fired it when Black and Gorman came out onto the porch, he denied pointing it at Gorman or threatening to kill him. Defendant claimed he only fired the gun in the air to scare the advancing Black and aid in escaping.
Following the electorate's passage of Proposition 36, defendant petitioned for recall of his sentence and for resentencing as a second-strike offender. The People opposed the petition, arguing defendant was ineligible for resentencing under the Act because he was armed with a firearm during his commitment offenses. The People in part relied on this court's opinion affirming the underlying convictions, the probation report prepared for initial sentencing, and the trial transcript. Certain prison disciplinary records were also presented for the court's consideration.
The court found that "technically [defendant was] not ineligible because of the offenses that he was convicted of." In the court's view, however, it was "by a razors [sic] edge that [defendant did not] get disqualified" for his gun related offenses. Having found defendant arguably eligible for resentencing, the court proceeded to determine whether defendant posed an unreasonable risk of danger to public safety.
In determining dangerousness, the court considered numerous factors. First, the court noted that several of defendant's past criminal convictions involved crimes of violence. Second, the court explained that defendant's recent rule violation in prison for possession of a cell phone was extremely serious since a phone could be used to obtain contraband, result in death, or otherwise undermine the overall security of the institution. Finally, the court emphasized the presence of the gun when defendant committed the current offenses. Based on the above, the court found defendant posed an unreasonable risk to society, and denied the petition. An order denying a petition for recall of sentence under section 1170.126 is an appealable order. (Teal v. Superior Court (2014) 60 Cal.4th 595, 597.)
DISCUSSION
We first consider the People's argument that the court erred in finding defendant eligible for resentencing "by a razors [sic] edge." As defendant recognizes in his reply brief, resolving this issue in the People's favor would moot defendant's remaining appellate contentions. (§ 1252 ["On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General"]; see also People v. Mendoza (2011) 52 Cal.4th 1056, 1076.)
Although the court acknowledged that defendant's offenses involved a firearm, the court nevertheless concluded that he was not per se disqualified from seeking resentencing under the Act. The People argue, like they did below, that defendant was ineligible because he was armed with a firearm during the commission of his current offenses. They also argue, for the first time on appeal, that defendant intended to commit great bodily injury when he killed Hillary, which likewise disqualifies him from resentencing on his involuntary manslaughter conviction.
Under the Act, an inmate serving a life sentence is eligible for resentencing as a second strike offender if: (1) the inmate is serving an indeterminate life sentence for a crime that is not a serious or violent felony; (2) the current offense is not for any of those listed in section 667, subdivision (e)(2)(C)(i)-(ii) and section 1170.12, subdivision (c)(2)(C)(i)-(ii), which generally include offenses for certain controlled substances or specified sex offenses; (3) during the commission of the current offense, the defendant did not use a firearm, was not armed with a firearm or deadly weapon, or did not intend to cause great bodily injury to another person; and (4) the inmate has no prior convictions for any offenses listed in section 667 subdivision (e)(2)(C)(iv) or section 1170.12, subdivision (c)(2)(C)(iv), sometimes referred to as "super-strikes." (People v. Johnson (2015) 61 Cal.4th 674, 681-682 (Johnson); § 1170.126, subd. (e)(1)-(3).) Even if eligible, an inmate will be denied recall of his sentence if "the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety." (§ 1170.126, subd. (f).)
In Johnson, the Supreme Court held that a qualified inmate may be resentenced for a count that is neither serious nor violent despite the presence of another count that is serious or violent. (Johnson, supra, 61 Cal.4th at p. 688.) In other words, "the Act requires an inmate's eligibility for resentencing to be evaluated on a count-by-count basis." (Ibid.) With these concepts in mind, we turn to the People's eligibility arguments.
The People primarily contend that defendant was "armed" when he committed the current offenses, and, thus, he is disqualified from resentencing under section 667, subdivision (e)(2)(C)(iii) and section 1170.12, subdivision (c)(2)(C)(iii). (§ 1170.126, subd. (e)(2).) " '[A]rmed with a firearm' has been statutorily defined and judicially construed to mean having a firearm available for use, either offensively or defensively." (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 (Osuna); see also People v. Elder (2014) 227 Cal.App.4th 1308, 1312 [arming "requires only that the defendant is aware during the commission of the offense of the nearby presence of a gun available for use offensively or defensively, the presence of which is not a matter of happenstance"] (Elder).) "Where, as here, 'the language of a statute uses terms that have been judicially construed, " 'the presumption is almost irresistible' " that the terms have been used " 'in the precise and technical sense which had been placed upon them by the courts.' " [Citations.] This principle [likewise] applies to legislation adopted through the initiative process. [Citation.]' " (Osuna, supra, 225 Cal.App.4th at p. 1029.) Like in Osuna and Elder, we conclude the electorate intended "armed with a firearm," as that phrase is used in the Act, to mean having a firearm available for offensive or defensive use. (Ibid.; Elder, at pp. 1312-1313, fn. 6.)
In this case, defendant's current convictions include: unlawful possession of a firearm by a felon (former § 12021, subd. (a)(1)), negligent discharge of a firearm (§ 246.3), and involuntary manslaughter (§ 192, subd. (b)). The underlying facts support a finding that he had a firearm available for immediate offensive or defensive use when he committed these offenses.
According to the appellate opinion affirming defendant's convictions, which we may properly consider (People v. Woodell (1998) 17 Cal.4th 448, 451 [the record of conviction includes an appellate opinion disposing of the appeal in the case]; Osuna, supra, 225 Cal.App.4th at p. 1030 [court considered prior appellate decision as part of record of conviction]), defendant admitted he went to his nephew's house and obtained the firearm. He carried the gun in case he encountered Gorman who might be armed. In other words, defendant obtained the gun to defend himself from a perceived threat. Thus, defendant was "armed with the firearm" while unlawfully possessing that firearm. (Osuna, supra, 225 Cal.App.4th at p. 1032 ["the literal language of the Act disqualifies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm"]; see also Elder, supra, 227 Cal.App.4th at p. 1312 [unlawful possession of a firearm can constitute being armed during an offense for purposes of section 1170.126].)
For defendant's negligent discharge of a firearm offense, defendant admitted firing the gun into the air to scare Gorman and Black away and to aid in his escape. Based on those facts, the jury found beyond a reasonable doubt that defendant had willfully discharged the firearm in a grossly negligent manner which could have resulted in injury or death. (§ 246.3.) These facts show that the firearm was available to use, and was in fact used, as a means of defense, one of the relevant inquiries for determining whether he was "armed" during the offense. (Osuna, supra, 225 Cal.App.4th at p. 1029.)
That the jury ultimately found that defendant did not personally use the gun to kill Hillary does not dictate a different result for purposes of his involuntary manslaughter conviction. The language of section 1170.126, subdivision (e)(2) does not indicate an "intent to require . . . the pleading and proof of an enhancement . . . in order to trigger the disqualifying factors contained in subdivision (e)(2)(C)(iii) of section 667 and subdivision (c)(2)(C)(iii) of section 1170.12." (Osuna, supra, 225 Cal.App.4th at p. 1034; Elder, supra, 227 Cal.App.4th at pp. 1315-1316.)
And, unlike defendant argues, a facilitative nexus between the arming and the underlying offense is not required under section 1170.126. (Osuna, supra, 225 Cal.App.4th at p. 1032.) As explained by the Osuna court, while there was no facilitative nexus between being armed with a firearm and unlawfully possessing it since "having the firearm available for use did not further [defendant's] illegal possession of it. There was, however, a temporal nexus. Since [Proposition 36] uses the phrase '[d]uring the commission of the current offense,' and not in the commission of the current offense (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii)), and since at issue is not the imposition of additional punishment but rather eligibility for reduced punishment, we conclude the literal language of [Proposition 36] disqualifies an inmate from resentencing if he or she was armed with a firearm during the unlawful possession of that firearm." (Osuna, supra, 225 Cal.App.4th at p. 1032; italics added.) We find Osuna's reasoning on this point persuasive.
The record of conviction, moreover, shows that defendant had the gun on his person from the time he left his nephew's house, to when he battered Hillary, to when he shot the gun into the air to scare Gorman and Black. The firearm was available for offensive and defensive use over the course of that entire period. Factually, then, defendant was "armed with a firearm" within the meaning of the Act even though the jury found the alleged firearm enhancements not true and there was a temporal rather than facilitative nexus between the firearm and the offense.
Based on the above, insufficient evidence supports the trial court's implicit conclusion that defendant was not "armed" within the meaning of the Act when he committed the current offenses for which he is imprisoned. (See e.g., People v. Bradford (2014) 227 Cal.App.4th 1322, 1331 [insufficient evidence supported trial court's determination that wire cutters used to cut security tags on merchandise were a deadly weapon that disqualified defendant from resentencing].) Substantial evidence, moreover, shows defendant had a firearm available for immediate offensive or defensive use when he unlawfully possessed the firearm, negligently discharged it, and when he struck and killed Hillary. The court therefore erred in finding defendant eligible for resentencing.
Given our conclusion that defendant was not entitled to be resentenced because he did not satisfy the threshold eligibility requirements since he was armed when he committed the underlying offenses, we need not consider the People's alternative argument, raised for the first time on appeal, that defendant intended to commit great bodily injury when he killed Hillary. Nor do we need to consider defendant's contentions that the phrase " 'unreasonable risk of danger to public safety' " is unconstitutionally vague (a claim previously rejected by this court in People v. Garcia (2014) 230 Cal.App.4th 763, 768-769) or that the court abused its discretion in denying his petition after finding him an unreasonable public safety risk. (People v. Zapien (1993) 4 Cal.4th 929, 976 [" ' "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.]' ".)
DISPOSITION
The order denying defendant's petition for recall of sentence and for resentencing is affirmed.
HULL, Acting P. J. We concur: BUTZ, J. MURRAY, J.