People v. Thomas

• Decision Date: 08 June 2020
• Docket Number: B294746
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RODNEY JOEY THOMAS, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. RODNEY JOEY THOMAS, Defendant and Appellant.

B294746

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

June 8, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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)),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.

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 "whilearmed" 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).² 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 forpossession of a firearm by a felon. Thomas appealed his convictions, and this court affirmed. (People v. Thomas (Dec. 16, 1998, B116114) [nonpub. opn.].)

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—theready 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 12022implicitly 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 ...