Opinion
B294746
06-08-2020
THE PEOPLE, Plaintiff and Respondent, v. RODNEY JOEY THOMAS, Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Nicholas J. Webster, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA013559) APPEAL from an order of the Superior Court of Los Angeles County, William C. Ryan, Judge. Affirmed. Richard B. Lennon, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Supervising Deputy Attorney General, and Nicholas J. Webster, Deputy Attorney General, for Plaintiff and Respondent.
____________________
INTRODUCTION
A jury convicted Rodney Joey Thomas of possession of cocaine base for sale (Health & Saf. Code, § 11351.5) and possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)), and acquitted him of possession of a controlled substance "while armed with a loaded, operable firearm" (Health & Saf. Code, § 11370.1, subd. (a)). Years later, Thomas filed a petition under Proposition 47, the Safe Neighborhoods and School Act of 2014 (§ 1170.18), for recall of his sentence and resentencing on his conviction for possession of cocaine base for sale and a petition under Proposition 36, the Three Strikes Reform Act (§ 1170.126), for recall of his sentence and resentencing on his third-strike conviction for possession of a firearm by a felon (the current offense). The superior court granted Thomas's petition under Proposition 47 but denied his petition under Proposition 36, ruling Thomas was ineligible for relief because he admittedly held a gun two days before his arrest and therefore was armed with a firearm during the commission of the current offense.
Penal Code former section 12021, subdivision (a)(1) (repealed by Stats. 2010, ch. 711, § 4), now Penal Code section 29800 (reenacted without substantive change by Stats. 2010, ch. 711, § 6). Undesignated statutory references are to the Penal Code.
Thomas argues the superior court erred in finding he was armed during the commission of the offense of possession of a firearm by a felon. In particular, Thomas argues that the jury's verdict acquitting him of possessing a controlled substance "while armed" meant he did not have the gun available for use to aid in the commission of the current offense on the date of his arrest and that all of the charges against him were limited to the events on that date. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 20, 1997 sheriff's deputies entered a residence with a search warrant, handcuffed Thomas, and placed him on the living room floor, where he began to choke on a small plastic bag containing cocaine base. The deputies found a loaded gun inside a box of laundry detergent in a bedroom 10 feet from Thomas. After his arrest, Thomas denied he owned the gun, but he admitted he had handled it two days earlier, on February 18.
The People charged Thomas with possession of cocaine base for sale, possession of a firearm by a felon, and possession of a controlled substance while armed with a loaded, operable firearm. The People alleged all three crimes occurred "[o]n or about February 20."
A jury convicted Thomas of possession of cocaine base for sale and possession of a firearm by a felon, but acquitted him of possession of a controlled substance while armed with a firearm. The trial court found Thomas had two prior serious or violent felony convictions within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The trial court sentenced Thomas to a prison term of 25 years to life for possession of cocaine base for sale and a consecutive term of 25 years to life for possession of a firearm by a felon. Thomas appealed his convictions, and this court affirmed. (People v. Thomas (Dec. 16, 1998, B116114) [nonpub. opn.].)
Thomas was convicted of robbery (§ 211) in 1989 and assault with a firearm (§ 245, subd. (a)(2)) in 1991.
Thomas filed petitions under Proposition 36 and Proposition 47 for recall of his sentences and for resentencing. The superior court granted Thomas's petition under Proposition 47 for resentencing on his conviction for possession of cocaine base for sale and reduced that conviction to a misdemeanor. The court, however, denied Thomas's petition under Proposition 36 for resentencing on his conviction for possession of a firearm by a felon, finding beyond a reasonable doubt Thomas was armed during the commission of that offense. The court ruled: "[Thomas] was detained while the sheriffs executed a search warrant . . . . A search of the residence was conducted and a handgun was located in the bedroom about 10 feet from where he was . . . . [Thomas] admitted he had handled the gun two days previously and his prints would be on it." Thomas appealed.
DISCUSSION
A. Applicable Law and Standard of Review
Under Proposition 36 defendants may petition for "a lesser sentence when they have two or more prior strikes and are convicted of a felony that is neither serious nor violent." (People v. Estrada (2017) 3 Cal.5th 661, 666-667.) However, a defendant is ineligible for resentencing "if, '[d]uring the commission of the current offense, the defendant . . . was armed with a firearm.'" (People v. Johnson (2015) 61 Cal.4th 674, 681.) Mere possession of a firearm (i.e., control or custody) does not disqualify a defendant from resentencing; rather, it is "'the availability—the ready access—of the weapon that constitutes arming'" (People v. Bland (1995) 10 Cal.4th 991, 997 (Bland)) that is disqualifying. (See People v. Valdez (2017) 10 Cal.App.5th 1338, 1352-1353 (Valdez) [a defendant is armed for purposes of Proposition 36 "when a weapon is available . . . to use offensively or defensively at any time during the actual or constructive possession of that weapon"]; People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [a defendant is "armed, and thus ineligible for resentencing, if he or she had the firearm or deadly weapon 'available for offensive or defensive use'"].) A finding that a felon was armed during his or her possession of a firearm for resentencing purposes under Proposition 36 requires "a temporal nexus between the arming and the underlying felony." (People v. Hicks (2014) 231 Cal.App.4th 275, 284; accord People v. Cruz (2017) 15 Cal.App.5th 1105, 1111-1112.)
A superior court's resentencing eligibility determination, "to the extent it was 'based on the evidence found in the record of conviction,' is a factual determination reviewed on appeal for substantial evidence." (People v. Perez (2018) 4 Cal.5th 1055, 1066.) A reviewing court "must determine if there was sufficient evidence for the trial court to conclude . . . the petitioner is ineligible for resentencing beyond a reasonable doubt." (Ibid.) "In reviewing the trial court's eligibility determination, we view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts." (People v. Thomas (2019) 39 Cal.App.5th 930, 935-936.)
B. The Superior Court Did Not Err in Ruling Thomas Was Ineligible for Resentencing Under Proposition 36 Because He Was Armed with a Firearm During the Commission of the Current Offense
1. A Finding the Defendant Was Armed Does Not Require a Facilitative Nexus Between the Firearm and the Current Offense
Thomas argues the superior court erred in finding he was armed because he was "at all times" in the living room, while the gun was in a box "against the far wall" of a "completely different room," where it was not "reachable" or available for him to use. He relies on People v. Pitto (2008) 43 Cal.4th 228 (Pitto) and Bland, supra, 10 Cal.4th 991, which held that a finding the defendant was armed requires a "facilitative nexus" between the firearm and the underlying crime, where the firearm serves "some purpose or effect with respect to" aiding the commission of the offense. (Bland, at p. 1002; see Pitto, at p. 239.)
Thomas's reliance on Pitto and Bland is misplaced. Those decisions concerned whether a trial court can impose a firearm enhancement under section 12022, not whether a defendant can be convicted under former section 12021 or obtain relief under Proposition 36. Section 12022, subdivision (a)(1), "requires that a defendant be armed 'in the commission of' a felony for additional punishment to be imposed." (People v. Hicks, supra, 231 Cal.App.4th at pp. 283-284.) In Bland the Supreme Court held the language in section 12022, subdivision (a)(1), "in the commission," means a firearm must be available for use during "and in furtherance" of the underlying offense. (Bland, supra, 10 Cal.4th at pp. 999-1000; see id. at p. 1002 ["section 12022 implicitly requires both that the 'arming' take place during the underlying crime and that it have some 'facilitative nexus' to that offense"].) But "Proposition 36 turns on whether the defendant was armed '[d]uring the commission of the current offense' [citation], which is different than a sentence enhancement for use of a weapon 'in the commission' of the offense." (People v. Cruz, supra, 15 Cal.App.5th at p. 1111.) "[T]he difference in language is significant." (Id. at p. 1112; see People v. Estrada, supra, 3 Cal.5th at p. 670 ["The term 'during' suggests temporal overlap: something that occurs throughout the duration of an event or at some point in its course."].) Because a "defendant convicted of violating former section 12021 does not, regardless of the facts of the offense, risk imposition of additional punishment pursuant to section 12022, there is no requirement of a 'facilitative nexus' between the arming and the possession," and Proposition 36 does not impose one. (Hicks, at p. 283; see Cruz, at p. 1111 [Proposition 36 "'requires a temporal nexus between the arming and the underlying felony, not a facilitative one'"]; see Valdez, supra, 10 Cal.App.5th at p. 1350; People v. Osuna (2014) 225 Cal.App.4th 1020, 1032, disapproved on another ground in People v. Frierson (2017) 4 Cal.5th 225, 235.)
Thomas admitted that he handled the gun on February 18 and that his fingerprints would be on it. His physical possession of the gun satisfied the temporal nexus requirement because he had the gun available for offensive or defensive use when he held it in his hands. (See Valdez, supra, 10 Cal.App.5th at p. 1356 [the "temporal nexus is the concurrence of the point in time when the defendant has possession of the weapon and it is available for use"]; Bland, supra, 10 Cal.4th at p. 997 [armed with a firearm means "to carry a firearm"]; People v. Brimmer (2014) 230 Cal.App.4th 782, 797 ["defendant was in actual physical possession of the shotgun, and therefore armed with a firearm during the commission of his possessory offenses"]; People v. White (2014) 223 Cal.App.4th 512, 525 [defendant was armed with a firearm "because he was carrying [and] thus, had '"ready access"'" to the firearm]; People v. Reaves (1974) 42 Cal.App.3d 852, 856-857 [a defendant is armed "when he simply carries such weapon or has it available for use in either offense or defense"].) Substantial evidence supported the superior court's finding that Thomas, a felon, was armed with a firearm on February 18 when he committed the offense of possession of a firearm by a felon.
2. The Charges Were Not Based Solely on the Events of February 20
Thomas argues that, even if he held the gun (and therefore was armed) on February 18, the superior court erred in denying his petition under Proposition 36 because the charges against him "were specifically limited to" his conduct on February 20. The record does not support Thomas's argument.
Thomas contends that the information "solely alleged" his crimes occurred on February 20, that the People did not allege Thomas possessed "either guns or narcotics on February 18," that the "jury's verdict appears to be solely based on what occurred on the 20th," and that the date of charge was "crucial" in the trial. In the information, however, the prosecution alleged Thomas committed the charged offenses "[o]n or about February 20," which was an entirely proper allegation. (See § 951 [an indictment or information may state "on or about the ___ day of ___"]; People v. Jennings (1991) 53 Cal.3d. 334, 358 [the prosecution need not "plead the exact date of the offense" where it is not "critically relevant" to a defense, such as to prove an alibi or a lack of opportunity].) And Thomas's defense at trial did not depend on which events occurred on which date. To the contrary, Thomas "admitted to 'transitory possession' of the handgun two days before his arrest" when "he may have touched or handled" the gun.
By alleging "[o]n or about February 20," the prosecution gave Thomas notice that the charges against him were limited to a relatively brief period of time around February 20 and that his admission to sheriff's deputies on February 20 could result in prosecution for his conduct on February 18. As the court stated in Valdez, supra, 10 Cal.App.5th 1338, "If a person commits a crime today and is not apprehended until some future point in time, that person is still subject to prosecution for the crime . . . . That person is no less culpable for the offense just because he was not caught in the act and arrested at the time and place where the crime was committed." (Id. at p. 1356.)
Indeed, in charging a defendant with possession of a firearm by a felon, the People do not need to allege the defendant possessed the firearm on a specific date because possession of a firearm by a felon "can be a continuing crime." (Valdez, supra, 10 Cal.App.5th at p. 1352; see id. at p. 1348 ["even if it is true that the weapon was not in defendant's actual physical possession at the precise time it was discovered, this does not necessarily undermine a finding that he was armed with the deadly weapon at other relevant times"].) Thomas's illegal possession of a firearm began "at the time he first possessed the gun because he violated the duty imposed by [former section 12021, subdivision (a)(1)] not to do so," and it "continued—as a single offense—for as long as the same possession continued." (People v. Mason (2014) 232 Cal.App.4th 355, 366; see ibid. [possession of firearm by a defendant was a single, continuing offense where there was no evidence suggesting any interruption in the possession, which only ended when the firearm was recovered].) Because the gun Thomas admitted he held on February 18 was the same gun sheriff's deputies found 10 feet away from Thomas on February 20, Thomas's possession of the gun was a continuing offense, and the charges were not "limited to" or "solely based on" the latter date.
Moreover, the record makes clear that the case against Thomas was based on conduct that included conduct on February 18. The deputies who arrested Thomas on February 20 booked him for possession of cocaine for sale. Although the deputies discovered the gun near Thomas on February 20, they did not include firearm possession by a felon in his booking papers until later, when Thomas admitted he had held the gun two days earlier. During closing argument the prosecutor argued that Thomas's admission he "held [the gun] two days ago" was "the link between him and the firearm"; that, although Thomas was not "armed personally" with the gun "at the time of the detention" on February 20, he held it on February 18; and that Thomas was a felon when he held the gun. And at sentencing the trial court found the two crimes the jury convicted Thomas of committing, possession of cocaine for sale and possession of a firearm by a felon, were "not committed on the same occasion" and "did not arise from the same set of operative facts" for purposes of section 654 because "Thomas's admission to holding the firearm" on February 18 showed "the possession of a firearm was 'antecedent' and 'separate' from the possession of the cocaine" on February 20.
Finally, even if, as Thomas urges, the prosecution limited the charges against him to the events of February 20, the superior court, for purposes of determining whether Thomas was eligible for relief under Proposition 36, could consider conduct by Thomas the prosecution did not specifically allege. (See People v. Estrada, supra, 3 Cal.5th at p. 672 ["Precluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the text, structure, and purpose of [Proposition 36] and would, by consequence, impose an unnecessary limitation."]; People v. Blakely (2014) 225 Cal.App.4th 1042, 1063 [a resentencing court "may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors" and "is not limited to a consideration of the elements of the current offense and the evidence that was presented at the trial"]; People v. White, supra, 223 Cal.App.4th at p. 525 [in determining whether a defendant is eligible for relief under Proposition 36, a resentencing court may consider whether the defendant was armed, even if "the information did not allege that [the defendant] was armed with a firearm when he committed that offense, and it contained no sentence enhancement allegation that he was armed"].) Here, the superior court considered "relevant, reliable, admissible portions of the record" (Blakely, at p. 1063), including Thomas's conduct on February 18, and the court found beyond a reasonable doubt Thomas was armed with a firearm during the commission of the current offense when he held a gun two days before his arrest. Substantial evidence supports that finding.
3. The Jury's Verdict Acquitting Thomas of Being Armed While Possessing Cocaine Did Not Require the Court To Find He Was Eligible for Relief
Thomas also argues the superior court erred in finding he was armed during the commission of the current offense "in spite of the jury's acquittal." Thomas contends, "Given that the jury convicted [him] of possessing the gun but acquitted him of being armed with it, the jury must have found that while he knew of the gun and could control it, it was not immediately available to him at the time he was found in the living room with the cocaine," and therefore "the jury was correct in finding that [he] was not armed." Thomas is correct the jury found the prosecution did not prove beyond a reasonable doubt he was armed with a firearm while he possessed a controlled substance. Possession of a firearm by a felon and possession of a controlled substance with a firearm, however, are "distinctly different criminal acts of possession," as this court stated in Thomas's direct appeal in concluding that punishing Thomas for possession of a firearm by a felon and possession of cocaine did not violate section 654. (People v. Thomas, supra, B116114.)
DISPOSITION
The order is affirmed.
SEGAL, J. We concur:
PERLUSS, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.