Opinion
F071933
10-04-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES LAMAR THOMAS, Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF159379A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
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Appellant James Lamar Thomas appeals his 2015 sentence, arguing it improperly includes a one-year enhancement for a prior prison term under Penal Code section 667.5, subdivision (b) (section 667.5(b)), because the underlying prior conviction had previously been reduced to a misdemeanor pursuant to the Safe Neighborhoods and Schools Act (hereafter Proposition 47 or the Act). We agree and modify the judgment accordingly. We disagree with his additional argument that the trial court abused its discretion in denying his request to have his prior strike conviction dismissed.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
In March of 2015, Jasmine Ward and her roommate Tayshawn Walker were living in an apartment in Bakersfield. Thomas, who was on parole and had a GPS tracking device attached to his ankle, was living with his mother, also in Bakersfield. Earlier, in February 2015, Ward and Thomas ended a multiple-year dating relationship.
On the evening of March 1, 2015, Thomas called Ward to inquire about a sweater he left at Ward's apartment. Ward said she was at work and would not get off until midnight, although she was actually at the apartment drinking with a group of friends, including a male named David Erwing.
At about 1:00 a.m. on March 2, 2015, Ward went to bed in her upstairs bedroom; Erwing was with her. Sometime later, Thomas entered Ward's apartment, by breaking a kitchen window, and encountered Walker. Walker asked what he was doing there, and Thomas asked where Ward was. Ward heard Thomas talking and came out of her room. When she did, Thomas immediately began hitting her. Ward told Walker to call the police.
Thomas forced Ward downstairs into the kitchen by pulling her hair and pushing her. Once in the kitchen, Thomas tased Ward. Thomas continued to hit Ward, who was eventually able to grab a knife out of the dish rack and stab Thomas multiple times. During the incident, Thomas complained to Ward that she had lied to him about being at work.
When Officer Paul Hernandez arrived at Ward's apartment, he took a statement from Ward and observed a broken window and blinds, a Taser, a six-inch knife, blood on the kitchen floor, and injuries to Ward's face. Hernandez next went to another address, where he made contact with Thomas and had him transported to the Kern Medical Center.
Ward suffered multiple injuries to the right side of her face, including a swollen and blackened eye, and bruising on the left side of her face. She had Taser "bumps" on her neck. Thomas's tracking device indicated he had been at Ward's apartment from 3:14 to 3:35 a.m.
On March 27, 2015, an information was filed charging Thomas in count 1 of infliction of corporal injury resulting in a traumatic condition on a person with whom had had a dating relationship (§ 273.5, subd. (a)), in count 2 of first degree burglary (§ 460, subd. (a)), in count 3 of assault with a stun gun (§ 244.5, subd. (b)), in count 4 of misdemeanor possession of a stun gun (§ 22610, subd. (a)) and in count 5 of assault likely to produce great bodily injury (§ 245, subd. (a)(4)). It was further alleged Thomas had a prior "strike" conviction (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), a five-year prior conviction enhancement (§ 667, subd. (a)), and had served two separate prior prison terms (§ 667.5(b)).
On June 3, 2015, Thomas pled no contest to count 4. On June 8, 2015, a jury found him guilty of the remaining counts. In a bifurcated proceeding, the trial court found the enhancement allegations true.
On July 7, 2015, the trial court denied Thomas's motion to strike the prior prison term enhancement based on a 2014 conviction for possession of a controlled substance, which had been reduced to a misdemeanor under Proposition 47. It also denied his request to have the prior strike dismissed under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Thomas was sentenced to a total of 18 years in prison, consisting of the upper term of six years on the count 2 first degree burglary conviction, doubled under the Three Strikes law, plus a consecutive five-year term on the prior serious felony conviction enhancement, and a consecutive one-year term on one of the two prior prison term enhancements. The trial court stayed sentence on counts 1, 3 and 5 pursuant to section 654, and imposed a $50 fine on the count 4 misdemeanor conviction. No time was imposed on the other prior prison term enhancement because it was based on the same prior conviction that was used to impose the five-year serious felony conviction enhancement.
DISCUSSION
I. PROPOSITION 47
On March 26, 2014, Thomas pled no contest to one count of possession of a controlled substance (Health & Saf. Code, § 11350) and, about a month later, was sentenced to three years in state prison with 213 days credit for time served.
On November 4, 2014, California voters enacted Proposition 47, which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act prospectively reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the conviction as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743-744 (Abdallah).) Section 1170.18, subdivision (a) authorizes the court to recall and resentence eligible defendants who are currently serving a felony sentence. Section 1170.18, subdivision (f) authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, supra, at pp. 743-744.)
On December 1, 2014, Thomas's March 2014 conviction for possession was reduced to a misdemeanor under section 1170.18, and he was released from prison and sentenced to a year in jail.
Section 667.5(b) imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Section 1170.18, subdivision (k) provides that once redesignated, prior convictions "shall be considered a misdemeanor for all purposes" except as it relates to possession or control of a firearm, an exception not applicable here. Because Thomas's prior conviction was redesignated as a misdemeanor prior to his sentencing in July 2015 in this case, the enhancement pursuant to section 667.5(b) cannot be imposed. We have held that the plain language of the statute and its "for all purposes" requirement precludes the imposition of the prior prison term enhancement under these circumstances. (People v. Call (2017) 9 Cal.App.5th 856, 858 (Call); see also People v. Kindall (2016) 6 Cal.App.5th 1199, 1205 (Kindall); Abdallah, supra, 246 Cal.App.4th at p. 746.)
Thomas successfully petitioned for redesignation prior to sentencing here. Accordingly, we apply Proposition 47 relief prospectively, as was done in Call, supra, 9 Cal.App.5th 856, Kindall, supra, 6 Cal.App.5th 1199, and Abdallah, supra, 246 Cal.App.4th 736.
Because we find section 667.5(b) imposes enhancements only for prison terms imposed on felony convictions and Thomas's conviction was reduced to a misdemeanor, we need not address his alternate argument that section 667.5(b) did not apply because he "did not complete the prison term imposed on that conviction."
II. PRIOR STRIKE CONVICTION
Under the Three Strikes law (§ 667, subds. (b)-(i)), a defendant who has been convicted of a felony and who has previously been convicted of a serious or violent felony, is to be sentenced to double the amount of time he or she would otherwise receive. (§ 667, subd. (e)(1).) Nonetheless, the trial court has the authority to strike in the furtherance of justice, a prior felony conviction under the Three Strikes law. (Romero, supra, 13 Cal.4th at pp. 529-530.) Thomas requested the trial court strike his prior felony "strike" conviction pursuant to section 1385.
Section 1385 provides in pertinent part: "The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." (§ 1385, subd. (a).) As used in section 1385, furtherance of justice "'"requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." [Citations.]' [Citation.] 'Courts have recognized that society, represented by the People, has a legitimate interest in "the fair prosecution of crimes properly alleged.' [Citation.] "'[A] dismissal which arbitrarily cuts those rights without a showing of detriment to the defendant is an abuse of discretion.' [Citations.]"' [Citation.]" (Romero, supra, 13 Cal.4th at pp. 530-531.)
Thomas claims the trial court erred in denying his request. We review a trial court's decision denying Romero relief for an abuse of discretion. (People v. Clancey (2013) 56 Cal.4th 562, 581.) It is the defendant's burden to demonstrate the sentencing decision was irrational or arbitrary. (People v. Philpot (2004) 122 Cal.App.4th 893, 904.) In his request that the trial court strike his prior 2010 "strike" conviction for active participation in a criminal street gang (§ 186.22, subd. (a)), Thomas argued (1) he was "extremely young" (22 years old) at the time of his strike prior; (2) he recognized the "wrongfulness" of his actions in the current case; and (3) he had a "supportive family," particularly his mother, who was present during trial, to help "get his life back on track." The trial court denied Thomas's request, finding it "not within the intent of the Romero decision nor its progeny, nor is it appropriate in the interest of justice to strike the strike."
In deciding whether to strike a prior felony conviction under Romero, the Supreme Court has stated trial courts should "consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) In light of the application of these factors to the present case, we find the court did not abuse its discretion.
According to the probation report, Thomas has a juvenile record going back to 1998, at age 11, when he incurred a sustained petition for attempted robbery (§§ 664/212.5, subd. (c)). This was followed by sustained petitions for burglary (§ 460) in 1999 and 2001; robbery (§ 212.5, subd. (c)) in 2001; possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) in 2004; and grand theft from a person (§ 487) in 2005. Thomas's juvenile parole was revoked five times between 2006 and 2011, when he was discharged from California Youth Authority. As an adult, Thomas was convicted of gang participation (§ 186.22, subd. (a)) in 2010, sentenced to 16 months in prison, and following his release, violated parole in 2011, 2012 and 2013. In 2014, he was convicted of possession of a controlled substance (Health & Saf. Code, § 11350). Thomas was paroled on January 11, 2015, convicted of disorderly conduct (§ 647, subd. (f)) on February 9, 2015, and sentenced to 45 days in jail. Even the present offense on March 2, 2015, was committed while he was on parole and wearing a tracking device. Moreover, his conviction in the present matter for first degree burglary (§ 460, subd. (a)) is a serious and violent felony (§§ 667.5, subd. (c)(21) [violent felony], 1192.7, subd. (c)(18) [serious felony]) and will now be Thomas's second "strike." Based on the foregoing, we cannot consider Thomas as being "outside the spirit of the Three Strikes law." (People v. Williams, supra, 17 Cal.4th at p. 163.) We reject his claim to the contrary.
DISPOSITION
The judgment is modified to strike the one-year prior prison term enhancement. The trial court is directed to forward an amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
/s/_________
FRANSON, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------