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People v. Thomas

California Court of Appeals, Fourth District, First Division
Mar 10, 2008
No. D051430 (Cal. Ct. App. Mar. 10, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. WILLIAM EDWARD THOMAS, Defendant and Appellant. D051430 California Court of Appeal, Fourth District, First Division March 10, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County Nos. SCD205211 & SCD204097, David J. Danielsen, Judge.

AARON, J.

In superior court case No. SCD205211, William Edward Thomas entered a negotiated guilty plea to one count of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)).

Statutory references are to the Health and Safety Code unless otherwise specified.

In superior court case No. SCD204097, Thomas entered a negotiated guilty plea to one count of unlawfully selling a controlled substance (§ 11352, subd. (a)) and admitted that he had a prior controlled substance conviction within the meaning of section 11370.2, subdivision (a) and a prior controlled substance conviction within the meaning of Penal Code section 1203.07, subdivision (a)(11). In exchange for the guilty pleas and admissions, the court set a sentence lid of six-years and eight-months in prison and said it would consider alternative sentencing under Penal Code section 1170.9.

Penal Code section 1170.9 authorizes an alternative sentencing program for combat veterans with posttraumatic stress disorder, substance abuse problems, or psychological programs stemming from the service. The statute allows the trial court to commit such individuals, who must be eligible for probation, to treatment programs "for a period not to exceed that which the defendant would have served in state prison or county jail." (§ 1170.9, subd. (b).) Thomas is a Navy veteran who served in the Vietnam War.

At the sentencing hearing, the trial court struck the section 11370.2 enhancement allegation and sentenced Thomas to a five-year prison term—the upper term of five years on the sales count and a concurrent two-year middle term on the possession count. Thomas did not obtain a certificate of probable cause.

FACTS

On December 22, 2006, San Diego police officers, who were checking for narcotics activity along an embankment near Interstate 5, found Thomas wrapped in a blanket and asleep. The officers woke Thomas, who identified himself and admitted that he was on parole and in possession of cocaine base and a pipe.

On January 16, 2007, an undercover San Diego police officer approached Thomas and another individual in the 400 block of 17th Street. The officer asked the pair if "anyone got it," referring to cocaine base. Thomas indicated that he did and asked the officer how much he wanted. The officer requested a "twenty." Thomas removed a small plastic bag from his mouth containing several pieces of rock cocaine. Thomas gave the officer two pieces of cocaine in exchange for a prerecorded $20 bill. These two pieces of rock cocaine weighed .29 gram. The officer then asked to buy another "twenty," and Thomas gave the officer two more pieces of rock cocaine in exchange for four prerecorded $5 bills. These two pieces of cocaine weighed .19 gram.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal, but asks that this court review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible, but not arguable, issues: (1) whether the trial court abused its discretion by not ordering Thomas into a drug treatment program pursuant to Penal Code section 1170.9; (2) whether the court's imposition of the upper term was in violation of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]; and (3) whether Thomas's guilty plea and admissions were constitutionally valid in light of his pleading guilty in exchange for the promise to consider alternative sentencing under Penal Code section 1170.9 when Thomas admitted to a "no probation" allegation under Penal Code section 1203.07, subdivision (a)(11).

We granted Thomas permission to file a brief on his own behalf. He has filed a supplemental brief.

Thomas challenges the court striking the prior drug conviction enhancement under section 11370.2 and then using his prior drug convictions as an aggravating factor to justify the upper term on the sales count. The challenge is without merit. Under California Rules of Court, rule 4.420 (c), "a fact charged and found as an enhancement may be used as a reason for imposing the upper term" if the court strikes the enhancement. Further, between 1990 and the instant offense, Thomas had been arrested and convicted 16 times on drug or drug-related crimes. Although most of them were misdemeanor offenses, the most recent ones were felonies. A recognized circumstance in aggravation is "[t]he defendant's prior convictions as an adult . . . are numerous or of increasing seriousness." (Cal. Rules of Court, rule 4.421 (b)(2).) We recognize, as did the trial court, that there were factors in mitigation as well, but on this record we do not discern that the trial court abused its discretion in its weighing of the aggravating factors and the mitigating factors and concluding the upper term was appropriate.

Thomas also contends that he was misled when he pled guilty. According to Thomas, he was told that if he pled guilty, the court would consider sentencing him under Penal Code section 1170.9. However, no one informed him that to receive treatment under Penal Code section 1170.9, he must be eligible for probation and his admission to the Penal Code section 1203.07, subdivision (a)(11) conviction rendered him ineligible for probation. The record belies the contention that he was misled. At the change of plea hearing, the court admonished Thomas as follows:

"THE COURT: Now, your case is a little bit unusual because they have some preliminary matters before we decide how it is actually going to turn out. [¶] Your lawyer believes and is going to encourage the Court to make a finding that the certain special provisions of the Penal Code apply to your case that exempt you from some of the otherwise mandatory prison requirements of your case. [¶] So we're going to have kind of, in a sense, a preliminary evaluation hearing and decide whether or not [Penal Code section] 1170.9 applies to your case and if it does, I will make some decisions. [¶] Now, if it doesn't apply to your case, you are in a situation where your case is mandatory prison. [¶] Do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: And so you are comfortable leaving that issue open and then having a back-up plan of going to prison; is that right?

"THE DEFENDANT: Yes, your Honor."

A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436 and Anders v. California, supra, 386 U.S. 738, including the possible issues referred to by appellate counsel and the arguments raised by Thomas, has disclosed no reasonably arguable appellate issues. Competent counsel has represented Thomas on this appeal.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O'ROURKE, Acting P. J., IRION, J.


Summaries of

People v. Thomas

California Court of Appeals, Fourth District, First Division
Mar 10, 2008
No. D051430 (Cal. Ct. App. Mar. 10, 2008)
Case details for

People v. Thomas

Case Details

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

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 10, 2008

Citations

No. D051430 (Cal. Ct. App. Mar. 10, 2008)