P. v. Thomas
Filed 2/22/13
P. v. Thomas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT
OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
LARRY DARNELL THOMAS,
Defendant and
Appellant.
F063566
(Super.
Ct. No. DF009998A)
THE COURT
name="_ftnref1" title="">*
APPEAL
from a judgment of the Superior Court of
Kelly
Babineau, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of
the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
STATEMENT OF THE CASE
On June 20, 2011, appellant, Larry Darnell
Thomas, was charged in an information with assault
with a deadly weapon by means likely to cause great bodily injury on a
correctional officer by an inmate undergoing a life sentence (Pen. Code,
§ 4500, count 1),
name="_ftnref2" title="">[1] assault with a deadly weapon by means likely
to cause great bodily injury by an inmate on an officer (§ 4501, count 2),
committing a battery by an inmate on a non-inmate (§ 4501.5, count 3),
resisting an executive officer by means of force (§ 69, count 4), and making a
criminal threat (§ 422, count 5).
Counts 1, 2, and 3 alleged a great bodily injury enhancement
(§ 1192.7, subd. (c)(8)). The
information alleged appellant had four prior serious felony convictions within
the meaning of the three strikes law (§§ 667, subds. (c)-(j) &
1170.12, subds. (a)-(e)).
name="_ftnref3" title="">[2]
On October 3, 2011, the trial court
denied a motion brought by appellant pursuant to Pitchess v. Superior Court
(1974) 11 Cal.3d 531. A discovery motion
and a motion for nonstatutory dismissal of the allegations were also
denied.
On October 7, 2011, appellant waived
his constitutional rights pursuant to
Boykin/Tahl.
name="_ftnref4" title="">[3]
Appellant executed a Felony Advisement of Rights, Waiver and Plea
Form. In exchange for appellant’s
admission of count 3, two prior serious felony allegations, and a great bodily
injury enhancement, the remaining allegations would be dismissed. Appellant would be sentenced to a stipulated
term of two years, doubled to four years pursuant to the three strikes law,
plus a consecutive term of three years for the great bodily injury
enhancement. Appellant’s total prison
term would be seven years to be served consecutively to the term for which he
was incarcerated. The trial court
determined that appellant initialed and executed the plea waiver form and
understood he was giving up his rights.
The parties stipulated to a factual basis for the plea based on law
enforcement reports and the preliminary hearing.
Appellant pled no contest to count 3, admitted two strike priors, and
admitted the great bodily injury enhancement.
The court sentenced appellant to the stipulated sentence of seven years
in prison pursuant to the plea agreement and imposed a $200 restitution fine
and other fines and fees.
name="_ftnref5" title="">[4]
FACTS
On November
9, 2007, Hector Robles was working as a correctional officer at Kern Valley
State Prison. At 11:00 a.m., Robles was
on duty at the medical clinic when he came into contact with appellant. Robles saw that appellant had talked to a
nurse and was standing in a line to talk to a doctor. Robles walked up to appellant to ask if there
was anything else he needed. Appellant
said he was “in fucking pain†and needed to see “the fucking doctor.â€
Appellant
turned to his left and appeared to be leaving.
Robles ordered appellant to leave the area and report back to his
assigned building. Robles directed his
attention to other inmates who were also in the medical facility. All of a sudden, Robles was hit in his left
eye by appellant’s closed fist. Robles
saw a burst of his own blood. Robles had
been struck generally in the face, including his left eye and lower lip. Robles ordered appellant to get down. Appellant did not comply.
Appellant continued
to strike Robles on the head with closed fists.
Robles was eventually successful in positioning himself behind
appellant, wrapping his arms around him, placing his foot in front of
appellant’s ankle, and using his own body weight to bring appellant to the
ground. Robles felt a pop in his
shoulder as he and appellant hit the ground.
Robles’s wrist and knee hit the concrete. Appellant continued to struggle and resist
Robles as Robles tried to get restraints on appellant’s hands. Soon other officers restrained
appellant. Robles’s eyes were
blurry.
As a result of appellant’s assault,
Robles had to undergo five surgeries.
Robles’s eye was operated on to remove eye muscle closest to Robles’s
nose. There was also a blowout fracture
of Robles’s nasal passage. Robles had
plastic surgery and surgery on his shoulder.
Robles had surgery on his eye to correct double vision. Robles felt soreness to his facial area and
tenderness to the touch of his skin.
APPELLATE COURT REVIEW
Appellant’s
appointed appellate counsel has filed an opening brief that summarizes the
pertinent facts, raises no issues, and requests this court to review the record
independently. (People v. Wende (1979) 25
Cal.3d 436.) The opening brief also
includes the declaration of appellate counsel indicating that appellant was
advised he could file his own brief with this court. By letter on April 5, 2012, we invited
appellant to submit additional briefing.
To date, he has not done so.
After
independent review of the record, we have concluded there are no reasonably
DISPOSITION
The judgment is
affirmed.
name="_ftn1" title="">* Before
Wiseman, Acting P.J., Cornell, J., and Poochigian, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code unless otherwise indicated.
