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People v. Thomas

Court of Appeals of California, Fifth District.
Nov 7, 2003
No. F043062 (Cal. Ct. App. Nov. 7, 2003)

Opinion

F043062.

11-7-2003

THE PEOPLE, Plaintiff and Respondent, v. AKWETTE ABOYOMI THOMAS, Defendant and Appellant.

Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and Carlos A. Martinez, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Harris, Acting P.J., Gomes, J. and Dawson, J.

STATEMENT OF THE CASE

On January 3, 2003, an information was filed in the Superior Court of Fresno County charging appellant Akwette Aboyomi Thomas with count I, forgery (Pen. Code,[] § 475, subd. (a)); count II, second degree burglary (§ 459); and count III, receiving stolen property (§ 496, subd. (a)). It was further alleged appellant suffered one prior felony conviction within the meaning of the three strikes law (§§ 667, subds. (b)-(i), 1170.12), and served one prior prison term (§ 667.5, subd. (b)). Appellant pleaded not guilty and denied the special allegations.

All further statutory citations are to the Penal Code unless otherwise indicated.

On April 10, 2003, appellant pleaded no contest to count III, receiving stolen property, and admitted the prior strike conviction and the prior prison term enhancement. The court granted the prosecutions motion to dismiss the remaining charges.

On May 14, 2003, the court granted appellants motion to dismiss the prior strike conviction and sentenced appellant to the upper term of three years for count III, with an additional one-year term for the prior prison term enhancement, for an aggregate term of four years. The court stayed the prison term and placed appellant on probation for five years pursuant to various terms and conditions, including service of one year in county jail (with credit for time served), and enrollment and completion of a substance abuse treatment program. The court awarded 149 days of actual credits and 74 days of custody credits, for a total of 223 days. The court imposed a mandatory restitution fine of $200 pursuant to section 1202.4. Appellant also pleaded no contest in an unrelated case to misdemeanor resisting arrest (§ 148, subd. (a)(1)), and was sentenced to time served.

On May 16, 2003, appellant filed a timely notice of appeal.

On July 1, 2003, the trial court granted appellants ex-parte motion to correct his time credits, nunc pro tunc to the original sentencing date, to 155 days of actual credits and 76 days of conduct credits, for a total of 231 days.

FACTS

On December 11, 2002, appellant Akwette Thomas went to the Bank of America in Calwa and tried to cash a check drawn from the account of Mr. and Ms. K., and made out to him for $883.43.[] The manager advised him to go to the West Shields branch in Fresno to cash the check. After appellant left, the Calwa manager immediately contacted the West Shields branch and the Fresno Police Department and advised them that appellant had a suspicious check.

The facts are taken from the preliminary hearing and the probation report.

Appellant arrived at the Bank of America on West Shields in Fresno, approached the teller, and again tried to cash the check. The teller determined the signature on the check did not match the signature card on file. The teller called Mr. and Ms. K. and left a message on their answering machine about the check.

In the meantime, the police arrived and drove by the bank while appellant was still inside. Appellant apparently noticed the police car, left the check with the teller, and walked out of the bank. He was immediately apprehended as a passenger in a vehicle which was trying to leave the parking lot. Appellant was taken into custody on a parole violation.

Fresno Police Officer Daniel Iriye contacted Ms. K. and showed her the check which appellant tried to cash. Ms. K. determined that she had written the check on December 1, 2002, to her credit union for $203. She placed the envelope in her mailbox for pick up, but the mail had already arrived and she believed the envelope stayed in the mailbox through the weekend. Ms. K. examined the check presented by appellant, and said she had only written the date but the signature and the other lines werent in her handwriting. She did not know appellant. Officer Iriye testified that several sections on the check appeared to have been erased.

Officer Iriye subsequently contacted appellant at the police department, where he was in custody on the parole violation. He advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and asked him about the check. Appellant said he had sold a radio and encyclopedias to a White male subject, who paid him with that check. Appellant said he didnt know the check was stolen.

DISCUSSION

Appellants appointed counsel has filed an opening brief which adequately summarizes the facts and adequately cites to the record, which raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) By letter of July 22, 2003, this court invited appellant to submit additional briefing and state any grounds of appeal he may wish this court to consider. Appellant has not done so.

Our independent review discloses no reasonably arguable appellate issues. "[A]n arguable issue on appeal consists of two elements. First, the issue must be one which, in counsels professional opinion, is meritorious. That is not to say that the contention must necessarily achieve success. Rather, it must have a reasonable potential for success. Second, if successful, the issue must be such that, if resolved favorably to the appellant, the result will either be a reversal or a modification of the judgment." (People v. Johnson (1981) 123 Cal.App.3d 106, 109.)

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Thomas

Court of Appeals of California, Fifth District.
Nov 7, 2003
No. F043062 (Cal. Ct. App. Nov. 7, 2003)
Case details for

People v. Thomas

Case Details

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

Court:Court of Appeals of California, Fifth District.

Date published: Nov 7, 2003

Citations

No. F043062 (Cal. Ct. App. Nov. 7, 2003)