People v. Thomas, B115359

CourtCalifornia Court of Appeals
Writing for the CourtGOODMAN; KLEIN, P.J., and CROSKEY
Citation79 Cal.Rptr.2d 152,67 Cal.App.4th 661
PartiesPreviously published at 67 Cal.App.4th 661 67 Cal.App.4th 661, 98 Cal. Daily Op. Serv. 8704, 98 Daily Journal D.A.R. 11,237 The PEOPLE, Plaintiff and Respondent, v. Otis Michael THOMAS, Defendant and Appellant.
Docket NumberNo. B115359,B115359
Decision Date29 October 1998

Page 152

79 Cal.Rptr.2d 152
Previously published at 67 Cal.App.4th 661
67 Cal.App.4th 661, 98 Cal. Daily Op. Serv. 8704,
98 Daily Journal D.A.R. 11,237
The PEOPLE, Plaintiff and Respondent,
Otis Michael THOMAS, Defendant and Appellant.
No. B115359.
Court of Appeal, Second District, Division 3, California.
Oct. 29, 1998.
Certified for Partial Publication. *
As Modified on Denial of Rehearing Nov. 24, 1998.
Review Granted Feb. 17, 1999.

Page 153

[67 Cal.App.4th 666] Ava R. Stralla, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Lance E. Winters and Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.

Page 154

[67 Cal.App.4th 667] GOODMAN, Associate Justice. **

Otis Michael Thomas appeals from the judgment entered after his conviction by jury trial of first degree residential burglary (count II; PEN.CODE, § 4591), making a terrorist threat (count III; § 422), possession of a firearm by a felon (count IV; § 12021, subd. (a)(1)), and false imprisonment of a hostage (count V; § 210.5). 2 The jury found true the allegations that Thomas was armed with a firearm in the commission of the offenses charged in counts II, III and V. 3 The jury also found true the allegation that the victim of the terrorist threats charge was reasonably in sustained fear for her safety. Thereafter, in a bifurcated trial, the same jury found true the allegations under the Three Strikes law (§§ 667, subd. (b)--(i) & § 1170.12) and under section 667, subdivision (a) that Thomas had been earlier convicted of, and served prison terms for, two serious or violent felonies. 4

The trial court sentenced Thomas to a composite of (1) a determinate term of 11 years on the enhancements (two five-year terms for the serious or violent priors [§ 667, subd. (a) ] and a one-year term for a different felony prior [§ 667.5, subd. (b) ] ) 5, and (2) three consecutive indeterminate terms of life in state prison, each with a minimum term of 25 years, on counts II, III and V, pursuant to section 667, subdivision (e)(2). Sentence on count IV was stayed, pursuant to section 654.

We affirm. In the published portions of this opinion we conclude that (1) the matter must be returned to the trial court for resentencing as there is nothing on the record which indicates the sentencing court understood it had the discretion to sentence Thomas to either consecutive or concurrent terms, and (2) section 2933.1, subdivision (c) limits Thomas's presentence conduct [67 Cal.App.4th 668] credits to 15 percent of his time in local custody as this is the plain meaning of the cited section and carries out the express intent of the Legislature in enacting it. We also return the matter to the trial court to exercise its discretion in sentencing Thomas on the three section 12022, subdivision (a)(1) enhancements which were proven, but for which no sentencing determination was made. In the unpublished part of the opinion, we reject Thomas's remaining contentions.


1. Prosecution evidence.

Viewed in accordance with the usual rule of appellate review (People v. Rayford (1994) 9 Cal.4th 1, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369; People v. Johnson (1980) 26 Cal.3d 557, 575-577, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that Thomas and Jacqueline Shorter (Shorter) had met in April 1996 and lived together at her residence for approximately one month, from May through mid-June, 1996. Shorter had four children who also resided with her. At no time did she give Thomas a key to her apartment.

On November 29, 1996, at between 5 and 6 p.m., Shorter was returning to her apartment alone, carrying some bags. As she unlocked her front door, she noticed Thomas behind her. Thomas lifted his jacket, revealing he was armed with a handgun. He ordered her to leave with him: "Come go with me, bitch. You're going with me."

Page 155

Shorter responded by telling him she would meet him outside after she had fed her children; she then entered her apartment. Thomas forced his way inside to find about 12 children, ages ranging from 1 to 13, in the living room and Shorter's daughter Tawna and her boyfriend Jalon cooking in the kitchen.

Thomas told her to "hurry up and feed the [f---ing] kids because" he was going to take her to his niece's house. Shorter fed her niece and baby. As she did so, Thomas told her quietly so the children could not hear: "Hurry up before [I do] a [f---ing] nutty." Shorter understood this to be a threat to "take out the gun and start shooting up the house." They had had a prior conversation which gave this context to his words. Shorter "got really nervous." She became frightened when he repeated his threat about "doing a [f---ing] nutty." He ordered her to "[h]urry up and come on so we can [f---ing] go." She thought he would start shooting if she did not go with him.

At this point Tawna called her mother into the kitchen. Shorter responded and went, whispering to Tawna that Thomas had a gun. The phone rang; [67 Cal.App.4th 669] Shorter answered. It was her sister. Shorter told her Thomas was " tripping," and asked her to call the police. She also told a second caller to do the same. Thomas was nervous and angry, telling Shorter to put on her shoes and "hurry the [f---k] up."

Four or five police officers arrived. All of the children left the house. One officer pointed a shotgun at Thomas, another aimed his handgun, identified himself as a police officer and ordered Thomas to turn around and put his hands in the air.

Shorter yelled that Thomas had a gun. Thomas grabbed Shorter, putting her in a choke hold and pulling her in front of him. This placed her directly in the line of fire. He yelled: "Bitch, you set me up." Thomas had his arm around her neck in a choke hold. Shorter was afraid.

An officer repeatedly ordered Thomas to release Shorter. Thomas tried to pull Shorter back toward the kitchen door and back door; Shorter resisted. Shorter, sensing Thomas was off-balance, pushed him into the dining room table and fled the apartment.

Finally, Thomas complied with the officers' commands and lay on the ground. A .38 caliber revolver was found in his waistband; it had three live rounds in the cylinder. Thomas announced: "You won't find my fingerprints on the gun." "I won't do no six months or a year for the [f---ing] gun."

2. Defense evidence.

Thomas did not testify. He called Shorter as a witness and attempted to impeach her with respect to count I, the June 26, 1996 burglary allegation.


Thomas contends (1) the threat he made to Shorter was conditional and equivocal, thus precluding his conviction of the crime of making a terrorist threat; (2) live testimony should not have been admitted at the trial on his Three Strikes priors; (3) remand is required for resentencing on counts II, III and V as the record is silent on whether the trial court understood it had discretion to impose consecutive or concurrent sentences on those counts; and (4) section 654 requires staying the sentences on counts III and V. The People dispute each assertion, and contend the award of local conduct credits was excessive.

67 Cal.App.4th 670


[[1.-2. ***

3. The consecutive sentences in light of People v. Deloza.

a. Introduction.

Thomas contends imposition of consecutive life sentences on each of counts II (residential burglary), III (terrorist threats), and V (false imprisonment of a hostage) violates the statutory prohibition on multiple punishment contained in section 654 even though the trial court had discretion to impose this sentence under the Three Strikes law. In support of this contention, Thomas claims all of his actions

Page 156

were part of one, indivisible course of conduct.

The People characterize Thomas's criminal conduct as arising out of multiple criminal objectives, first an unpermitted entry (in an attempt to kidnap); next, a threat to shoot the children and Shorter if she did not go with him; and, finally, using Shorter as a human shield to save himself when the police arrived. The People argue: "Each offense evidenced appellant's response to unforeseen changes in circumstances. Before committing each [crime], [Thomas] had the opportunity to reflect, but chose to commit new, increasingly violent crimes."

While the circumstances of the crimes support the trial court's imposition of consecutive sentences, we cannot determine from the record whether the trial court understood that it had the discretion to impose either concurrent or consecutive sentences. If, on remand, the trial court again determines that consecutive sentences are appropriate, it must articulate on the record a reason for this sentencing choice.

b. Factual predicate.

Thomas went to Shorter's residence to force her to go with him to another location, taking a revolver with him to "back up" his orders. When Shorter had the presence of mind to distract him by claiming she had to feed the children and entered her residence, Thomas followed, forcing himself inside her home. Once inside, he lost control of the situation as the home was filled with a dozen children. To regain control he threatened to shoot randomly about the premises ("do a [f---ing] nutty"). Thereafter, Shorter was able to call the police, who arrived with dispatch. Thomas had to change his plan again: He seized Shorter and forcibly used her as a human shield.

[67 Cal.App.4th 671] The facts make clear that Thomas changed his original objective and plan to accommodate the changing circumstances. There is no version of the facts under which all of the crimes were part of an original, single criminal objective. Everything possible went wrong with Thomas's original plan, forcing several changes in its objective and in its execution.

c. Applicable law.

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    ...used "six or seven" repeatedly during his testimony, apparently as an estimate. ** See footnote *, ante. 3 People v. Thomas (1998) 67 Cal.App.4th 661, 79 Cal.Rptr.2d 152, review granted Feb. 17, 1999 (S075090), did reach this issue. The Supreme Court, however, subsequently granted review --......
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