P. v. Thomas
Filed 7/23/13 P. v. Thomas CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
Keith P. Thomas,
Defendant and Appellant.
B240461
(Los Angeles
County
Super. Ct.
No. YA045335)
APPEAL from
an order of the
County Superior Court, Patricia M. Schnegg, Judge. Affirmed.
Christine
C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent.
Defendant
and appellant, Keith P. Thomas, appeals from the trial court’s order denying
his petition for writ of error coram nobis
filed with regard to four superior court cases:
Nos. BA036950, A741808, YA045335 and BA047233.
FACTUAL AND PROCEDURAL BACKGROUND
After having been released from Metropolitan
Hospital, on June 7, 1989 in Case No. A741808, Thomas pled
no contest to one count of former Penal Code section 12025, subdivision (b),
being a convicted felon in possession of a concealed firearm. On February
14, 1990, the trial court sentenced Thomas to the low term of one
year four months in prison.
In an information filed on May 7, 1991, Thomas was charged in
Case No. BA036950 with one count of second degree burglary of a vehicle in
violation of section 459. Following a
hearing held on August 7, 1991,
the public defender assigned to Thomas declared a doubt as to Thomas’s
competence. Proceedings were suspended
and two doctors were appointed to evaluate Thomas pursuant to Evidence Code
sections 1017, 952 and 730. However,
when each of the doctors went to the jail to evaluate Thomas, he refused to see
them. Accordingly, at proceedings held
on September 18, 1991,
a pretrial conference was set for October
23, 1991. On February 24, 1992, Thomas pled
guilty to second degree burglary of a vehicle in violation of section 459.
The trial court sentenced Thomas to the mid-term of two years in prison
and ordered the sentence to run concurrently with any “prior uncompleted
sentence(s).â€
Also on February 24, 1992, in Case No.
BA047233, Thomas pled guilty to possession of a deadly weapon (a shank) while
lawfully confined in a jail or state prison in violation of section 4574,
subdivision (a). The trial court
sentenced Thomas to the low term of two years in prison and again ordered the
sentence to run concurrently with any “prior uncompleted sentence(s).â€
Thomas was
apparently paroled in Case Nos. BA036950 and BA047233 “sometime between
February 1992 and December 1996.†“[I]n
December 1996 he was arrested and charged in Case No. BA143056 with robbery and
kidnapping to commit robbery.†However,
“[o]n March 27, 1997, the People announced . . . they were unable to proceed
[with the matter] and the [trial] court dismissed the case.â€
Following a
court trial in Case No. YA045335, on November 16, 2001 Thomas was found guilty
of two counts of knowingly and willingly threatening the life of a judge in
violation of section 76, subdivision (a) and six counts of making terrorist
threats in violation of section 422. At
proceedings held on December 21, 2001, the trial court declared a doubt as to
Thomas’s competency and stayed the criminal proceedings pursuant to section
1368, subdivision (a). Pursuant to
section 1369, the court appointed Drs. Kaushal Sharma and Richard J.
Lettieri to examine Thomas. At
proceedings held on May 17, 2002, after reading the reports submitted by
the two doctors, the trial court found Thomas competent and reinstated the
criminal proceedings. Sentencing was set
for June 19, 2002.
At sentencing, the trial court
selected count 2 (making terrorist threats in violation of section 422) as the
base term and imposed the upper term of three years in state prison. The court then imposed an additional five
years for the finding Thomas had suffered a prior serious felony conviction
pursuant to section 667, subdivision (a)(1).
For counts 3, 4 and 6 (making terrorist threats), the trial court
imposed one-third the mid-term, or eight months as to each count, the terms to
run consecutively to those imposed with regard to count 2 and to each
other. For counts 7 and 8 (making
terrorist threats), the trial court imposed as to each count the upper term of
three years, the terms to run consecutively to the base term imposed with
regard to count 2. With regard to counts
1 and 5 (threatening a judge), the court stayed imposition of sentence pursuant
to section 654.
title="">[3] In total, Thomas was sentenced to 10 years in
prison. The court awarded Thomas
presentence custody credit for 650 days actually served and 325 days of good
time/work time, or 975 days. The trial
court then ordered Thomas to pay a $200 restitution fine (§ 1202.4,
subd. (b)) and a stayed $200 parole revocation restitution fine (§
1202.45).
On August
15, 2002, Thomas filed a timely notice of
appeal from his convictions in Case No. YA045335. However, on January 15, 2003, as Thomas had
failed to respond to the trial court’s notice regarding representation on
appeal, the court ordered the appeal “dismissed as abandoned.â€
Just prior
to the dismissal of his appeal, on January 6, 2003 the trial court received
from Thomas a petition for a writ of habeas corpus. At proceedings held on January 24, 2003,
the trial court denied the petition, indicating it was “unintelligible in its
request, and [was] further barred as [Thomas] ha[d] not thus far sought
appropriate appellate relief . . . .
Also, the writ present[ed] issues that could have been presented in
earlier petitions and [was] therefore barred.â€
On February
3, 2003, the trial court filed an order indicating that, “good cause appearing,
the order of dismissal filed January 15, 2003 [was to be] vacated and the
appeal [with regard to Case No. YA045335] . . . reinstated.†The trial court directed the California
Appellate Project to appoint counsel for Thomas “forthwith.†On appeal, the matter was affirmed in full
and the remittitur issued on July 6, 2004.
Since his
conviction in Case No. YA045335 was affirmed on appeal, Thomas has filed a
number of in propria persona writ petitions, the most recent of which was a
petition for writ of error coram nobis filed in the trial court on December 12,
2011. The petition consisted of a
document over 130 pages in length “seeking writs of error coram nobis [in] four
cases because ‘petitioner had been intoxicated with anti-psychotic medications
during the plea bargaining sessions and that constitute[d] incompetence under
[section] 1368 . . . .’ The specific
cases referred to included: [¶] BA036950
– sentenced 2/24/92 – 2 years state prison[,] [¶] A741808 – sentenced 2/14/90 –
16 months state prison[,] [¶] YA045335 – sentenced 6/19/02 – 10 years state
prison [and] [¶] BA047233 – sentenced 2/24/92 – 2 years state prison[.] [¶] In
each case, [Thomas] include[d] reams of paper for service on the District
Attorney of Los Angeles County and the Attorney General of California. He ask[ed] the court to serve his documents.â€
The trial
court denied the petition for relief as to each cited case. The court indicated Thomas had made “a
general statement and offer[ed] nothing to support it. His conclusory allegation about incompetence
[was] without merit. (See
656.) [¶] [Moreover, Thomas was] responsible for
service on all necessary parties and [could] not rely on the court for
assistance.â€
On February
6, 2012, Thomas filed a notice of appeal from the trial court’s order.
CONTENTIONS
After
examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent
review of the record. By notice filed
January 3, 2013, the clerk of this court advised Thomas to submit within 30 days
any contentions, grounds of appeal or arguments he wished this court to
consider. On January 16, 2013, Thomas
filed a request for an extension of time, to April 15, 2013, to file a
supplemental brief. This court granted
the request. On March 4, 2013, this
court granted Thomas a second extension, allowing him to file his supplemental
brief up to and including May 15, 2013.
On March
11, 2013, Thomas filed a letter brief in which he asserted his appellate
counsel had been ineffective for failing to obtain for him portions of the
record, as well as the district attorney’s file. Thomas claimed he needed these documents to
disprove the district attorney’s assertion in Case No. YA045335 that he wrote
threatening letters to the judge. The
contention is without merit. Attached as
exhibits to Thomas’s document are two orders previously issued by this
court. In an order filed June 27, 2012,
this court stated: “Having read and
considered Thomas’ pro per request for a copy of the record on appeal in the
above matter, [the court] hereby DENIES said request. Thomas was represented on appeal by appointed
counsel who filed an opening brief which raised no issues and asked this court
to conduct an independent review of the record.
(See People v. Wende (1979) 25
Cal.3d 436.) We directed appointed
appellate counsel to forward the record on appeal to Thomas who thereafter
filed a supplemental letter brief in which he raised numerous issues which we
rejected. (People v. Thomas (April 27, 2004, B161765) [nonpub. opn.].) Because it thus appears Thomas already has
been provided a copy of the record on appeal, and he has failed to state
grounds that would warrant providing him a second copy thereof, his request is
denied. Thomas’s further request to
reinstate the appeal similarly is denied.â€
In a second
order, issued by this court on July 30, 2012 and provided as an exhibit by
Thomas, this court stated: “Having read
and considered Thomas’ renewed requests for a copy of the record on appeal and
to reinstate the appeal in the above matter, [the court] hereby DENIES said
requests. Thomas asserts prison
officials lost his copy of the record on appeal when he was transferred from
one prison to another. He claims he
needs another copy of the record to show the prosecutor violated his
substantive rights by charging six counts of making a criminal threat in
violation of . . . section 422, based on a single threatening letter. However, the unpublished opinion filed
January 28, 1991, indicates Thomas wrote two threatening letters and each
letter threatened a judge, a prosecutor and an investigator. Moreover, the relevant facts are contained in
this court’s unpublished opinion.[
name="_ftnref4" title="">[4]] Thus, Thomas has failed to demonstrate good
cause to provide him a second copy of the record on appeal in this case.â€
Here, as in
his previous petitions, Thomas has failed to show good cause demonstrating it
is necessary that he be provided with another copy of the record and portions
of the district attorney’s file in Case No. YA045335. Accordingly, it cannot be concluded his
appellate counsel was incompetent for failing to attempt to procure these
records for him. (See
668, 669, 693-694; People v .Carter
(2003) 30 Cal.4th 1166, 1211; see also In
re Spears (1984) 157 Cal.App.3d 1203, 1210-1211.)
Thomas
filed a second supplemental brief on April 25, 2013. In this brief, he asserted that, with regard
to his 1989 Case No. A741808 in which he pled no contest to one count of former
section 12025, subdivision (b), being a convicted felon in possession of a
concealed firearm, the trial court failed to give him the opportunity to show
he was factually innocent, his trial counsel was ineffective and the prosecutor
“withheld information.†As to his first
contention, in his brief Thomas indicates he found a gun under a bus stop
bench, picked it up and placed it in his pocket. Although he claims he intended to take the
gun to a police station where he could turn it in, when he was later stopped
and searched by police officers, he was found to be in possession of the
weapon. Moreover, rather than go to
trial on the matter, at proceedings held on June 7, 1989 Thomas chose to admit
he was a convicted felon in possession of a concealed firearm by entering a
plea of no contest to the offense.
With regard
to his assertion his trial counsel was ineffective, Thomas claims his public
defender failed to properly investigate the matter and to obtain pertinent
records from the district attorney. In
particular, Thomas indicates his counsel failed to obtain records regarding his
history of mental illness. Although Thomas has attached as exhibits to
his brief some documents which appear to pertain to his mental health, it is
unclear from the records provided what Thomas’s mental state was on June 7,
1989, the day he entered his plea. The
only document which indicates Thomas needed to be involuntarily medicated to
“prevent a deterioration of his mental or physical condition†is a petition
filed by the California Department of Corrections dated August 2, 1995, several
years after Thomas entered his plea in Case No. A741808.
Finally,
Thomas asserts the district attorney withheld information from his
counsel. Thomas indicates the district
attorney failed to inform his counsel that, before Thomas was detained and
arrested by police officers, the officers had received a 911 call indicating “a
man [was] yelling at [a bus stop at] the corner of Hilgard Avenue and
Wynton.†When officers arrived at that
location, they found Thomas. One of the
officers was familiar with Thomas “from previous contacts†and when he
conducted a pat-down search for weapons, the officer found a “loaded blue steel
colt .380 caliber automatic pistol . . . inside [Thomas’s] top left pocket.â€
Apart from
whether the district attorney kept this information from Thomas’s counsel,
Thomas has failed to show it caused him prejudice. If anything, the evidence would have been
inculpatory.
On April
25, 2013, Thomas filed an “Ex Parte Application/Affidavit to remand case [No.]
BA036950 to [the] Los Angeles Superior Court . . . for
Arraignment.†In his application, Thomas
again asserted because the district attorney had withheld information, he was
entitled to withdraw his plea and proceed to trial on the matter. He asked this court to remand both Case No.
BA036950 and Case No. BA047233 to the Los Angeles Superior Court and
to direct the court to allow him to withdraw his pleas and go to trial. He argued he is innocent of the charges and
should be allowed to proceed by having a jury trial in both matters.
Thomas,
however, pled guilty in both cases in 1992.
He then failed to seek review; he did not file notices of appeal and
requests for certificates of probable cause.
Moreover, in the present supplemental brief, he does not indicate he has
discovered new, exculpatory evidence.
His statement, without corroboration by independent, objective evidence
is insufficient to warrant relief. (
938, 945.)
In the
additional supplemental brief filed on April 25, 2013, Thomas argued his 2002
conviction in case No. YA045335 was unlawful.
However, as stated above, the judgment which was entered following a
court trial was affirmed on appeal by this court in People v. Thomas, supra, B161765.
According to Thomas, the California Supreme Court then denied review and
his petition for a writ of habeas corpus was denied by the United States
District Court (Central). In this
additional brief, Thomas argues only one new point: that his delay in bringing this claim is
justified. He asserts he failed to bring
the claim earlier because he is a “layman in law,†lacks even a grade school
education and was unable to understand how to make use of the exhibits provided
to him. However, “[a] defendant
appearing in propria persona is held to the same standard of knowledge of law
and procedure as is an attorney.†(
625; see also Faretta v. California
(1975) 422 U.S. 806, 834-835, fn. 46.)
Thomas had been provided a copy of the record on appeal and the relevant
facts are contained in this court’s unpublished opinion which was filed in
April 2004, approximately seven years before he filed the petition for writ of
error coram nobis in the trial court.
Finally, as the trial court indicated, Thomas has made “general
statement[s] and offer[ed] nothing to support [them.]â€
REVIEW ON APPEAL
We have
examined the entire record and are satisfied counsel has complied fully with
counsel’s responsibilities. (
278-284; People v. Wende (1979) 25
Cal.3d 436, 443.)
The trial court’s order denying Thomas’s petition for
writ of error coram nobis is affirmed.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
P. J.
We concur:
CROSKEY, J.
KITCHING, J.
name="_ftn1" title="">
Penal Code section 1237, subdivision (b).
name="_ftn2" title="">
further statutory references are to the Penal Code unless otherwise indicated.
