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People v. Thomas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 18, 2012
B232648 (Cal. Ct. App. Jan. 18, 2012)

Opinion

B232648

01-18-2012

THE PEOPLE, Plaintiff and Respondent, v. EURICK THOMAS, Defendant and Appellant.

Leonard J. Klaif, under appointment by the Court of Appeal, for Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel and Sharlene A. Honnaka, Deputy Attorneys 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA363263)

APPEAL from a judgment of the Los Angeles County Superior Court. Frederick N. Wapner, Judge. Affirmed.

Leonard J. Klaif, under appointment by the Court of Appeal, for Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Paul M. Roadarmel and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Eurick Thomas of attempted murder with findings the attempted murder was not premeditated, and that he personally inflicted great bodily injury, and that he personally used a firearm, personally discharged a firearm, and personally discharged a firearm causing great bodily injury. (Pen. Code, §§ 664/187, subd. (a); 12022.7, subd. (a); 12022.53, subds. (b), (c), (d).) The trial court found Thomas had suffered two prior strike convictions and three prior felony convictions with a prison term. (§§ 667, subds. (b) -(i); 1170.12, subds. (a)-(d); 667.5, subd. (b).) The trial court sentenced Thomas to an aggregate term of 63-years-to-life in state prison as follows: a term of 35-years-to-life for attempted murder, plus a consecutive term of 25-years-to-life for personally discharging a firearm causing great bodily injury, plus 3 consecutive 1-year terms for the prior felony convictions with a prison term. Thomas raises two claims on appeal: (1) the trial court abused its discretion when it denied his motion to dismiss at least one of his prior strikes convictions (see People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); and see also People v. Williams (1998) 17 Cal.4th 148 (Williams)), and (2) his sentence constitutes cruel and/or unusual punishment under the federal and state Constitutions. We affirm the judgment.

All further section references are to the Penal Code.

FACTS

Thomas does not contest that substantial evidence supports his convictions. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Redmond (1969) 71 Cal.2d 745, 755.) Accordingly, it is sufficient to note the evidence presented at trial established that Thomas shot his brother three times with a 22-caliber handgun — twice in the head, and once in the arm — following an argument. The facts surrounding Thomas' prior strike convictions and other criminal history are discussed more fully below in addressing his sentencing contentions on appeal.

DISCUSSION

I. Romero

In Romero, supra, 13 Cal.4th 497, our state Supreme Court ruled that a sentencing court retains discretion under the "Three Strikes" law to dismiss a defendant's prior strike or strikes to achieve a punishment in the furtherance of justice. (Id. at p. 504.) In Williams, supra, 17 Cal.4th 148, the court explained that a sentencing court's exercise of discretion to dismiss a prior strike is to be guided by this standard: may the defendant, in light of his or her current crime, and his or her criminal history, background, character, and prospects, be deemed "outside the spirit" of the three strikes law, in whole or in part, and, hence, be treated as though he or she had not suffered the prior strike conviction. (Id. at p. 161.) A court's decision not to dismiss a prior strike is reviewed on appeal under the abuse of discretion standard. (See People v. Carmony (2004) 33 Cal.4th 367, 376-377 (Carmony.) Where the factors cited in Williams, "manifestly support the striking of a prior conviction and no reasonable minds could differ[,] the failure to strike would constitute an abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 378.)

Here, we cannot find an abuse of discretion because reasonable minds could differ on whether the factors described in Williams, support dismissing at least one of Thomas's prior strike convictions. In his current case, a jury found Thomas guilty of attempted murder, with a firearm, causing great bodily injury. He shot his brother in the head. He suffered a prior strike conviction in 1986 for attempted robbery, and a prior strike conviction in 1998 for robbery. The probation report shows numerous other arrests and convictions, including for drug offenses, and possession of a weapon while a prisoner. The report also shows various parole violation proceedings, as well as incidents involving obstructing police officers. Given all of the circumstances, the trial court did not abuse its discretion in denying Thomas's Romero motion because Thomas is not a defendant who is "outside the spirit" of the three strikes law. On the contrary, Thomas's current offense and criminal history supports a reasonable conclusion that he is the type of career, recidivist criminal for whom the three strikes law is intended to be applied.

We disagree with Thomas that the trial court's failure to pronounce its reasons for its decision denying Thomas's Romero motion requires reversal. As the Supreme Court explained in Carmony, supra, 33 Cal.4th 367, a trial court is not required to state reasons for denying a Romero motion; the trial court is presumed to have acted in accord with the law and it is an appellant's burden to show error. (Id. at p. 378.) Here, the record shows that the court understood its discretion — the sentencing issues were briefed and argued, and we see nothing to suggest that the court did not understand the issues.

II. Cruel and/or Unusual Punishment

Thomas contends his sentence cannot stand because it violates the prohibitions against cruel and/or unusual punishment in the federal and state constitutions. (See U.S. Const., 8th Amend.; Cal. Const., art. I, § 17.) We disagree.

First, Thomas did not raise an objection to his sentence based on cruel and/or unusual punishment principles in the trial court. Because the issues involved in such an objection are to a significant extent fact-driven, the lack of an objection waives the issue on appeal. (People v. Kelley (1997) 52 Cal.App.4th 568, 583.)

Assuming the issue is not forfeited, we examine Thomas's punishment under the Eighth Amendment in light of the principle of proportionality. In this examination, we assess three factors to determine whether his sentence is proportionate to his offense and his circumstances such that it does or does not constitute cruel and unusual punishment: (1) the gravity of the offense and the harshness of the penalty; (2) sentences imposed for other crimes in the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions. (Ewing v. California (2003) 538 U.S. 11, 22.) Although our analysis is hampered under these principles due to the absence of a developed record on the elements noted, we find Thomas's excessive punishment argument fails because he has not persuaded us that a life term is unreasonable for a person who is convicted of attempted murder, using a firearm, with a lengthy history of violent crimes. (See, e.g., Lockyer v. Andrade (2003) 538 U.S. 63 [three strikes sentence did not violate Eighth Amendment rights of defendant convicted of shoplifting videotapes].)

Under article I, section 17, of the California Constitution, we assess whether a punishment "shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) This determination is made by examining and balancing a number of factors, including: (1) the nature of the current crime and the offender, (2) a comparison of the sentence with punishments prescribed in California for different offenses; and (3) a comparison of the challenged sentence with punishments for the same offense in other jurisdictions. (Id. at pp. 425-428.) Depending on the circumstances, any of these factors, in any given situational amalgamation, may support a conclusion that a sentence amounts to cruel or unusual punishment under our state's constitution. (People v. Mendez (2010) 188 Cal.App.4th 47, 67.)

Thomas's argument fails for the reasons discussed in People v. Cooper (1996) 43 Cal.App.4th 815. Thomas's current offense involved violence — an attempt to kill, with a gun, causing great bodily injury. His criminal history is extensive. Fairly summarized, Thomas's criminal history reflects an essentially unbroken life of crime or incarceration. Lesser punishment plainly has not persuaded Thomas to stop committing violent criminal acts. In light of the totality of the circumstances, we cannot declare his sentence to amount to cruel or unusual punishment. (Id. at pp. 820-828.)

DISPOSITON

The judgment is affirmed.

BIGELOW, P. J.

We concur:

FLIER, J.

GRIMES, J.


Summaries of

People v. Thomas

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 18, 2012
B232648 (Cal. Ct. App. Jan. 18, 2012)
Case details for

People v. Thomas

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. EURICK THOMAS, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 18, 2012

Citations

B232648 (Cal. Ct. App. Jan. 18, 2012)