People v. Thomas CA2/4 ( 2020 )

Filed 12/8/20 P. v. Thomas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301464
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA072278)
v.
JAMES JOSHUA THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daviann L. Mitchell, Judge. Affirmed.
James R. Bostwick, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Appellant James Joshua Thomas pled no contest to
conspiracy to possess a controlled substance in a custodial
facility. (Pen. Code §§ 182, subd. (a)(1), 4573.6, subd. (a).1) The
court sentenced appellant to 16 months, which the court and
parties believed was the maximum sentence. After the
Department of Corrections and Rehabilitation sent a letter to the
court stating that the sentence was incorrect, the court corrected
appellant’s sentence to two years. Appellant then filed a notice of
appeal challenging only the sentence.
On appeal, appellant’s appointed counsel filed a brief
requesting that we independently review the record for error.
People v. Wende (1979) 25 Cal. 3d 436, 441 (Wende). We have
conducted an independent examination of the entire record and
conclude no arguable issues exist. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant pled no contest to conspiracy to possess a
controlled substance in a custodial facility. (§§ 182, subd. (a)(1),
4573.6, subd. (a).) He also admitted two strike priors and a
prison prior. (§§ 667, subd. (b)-(j); 667.5, subd. (b), 1170.12.)
Before taking appellant’s no contest plea at the August 8,
2018 hearing, the court stated several times that 16 months was
the maximum available sentence. For example, the court stated
that appellant was “pleading to what his maximum is available to
him, 16 months.” The court and counsel had a conversation
about which priors appellant was required to admit for purposes
of the plea, and the court stated, “I can only sentence him to one-
third the midterm because the new charge is not a serious or
1Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
violent felony.” A moment later, the court said, “The way that it’s
pled, the maximum exposure is 16 months. The defendant will be
getting 16 months.” The court then said to appellant, “My
understanding is you’re willing to plead to the sheet, which
means, you’re going to admit all the allegations against you.
Your sentence will be 16 months. That’s all the court can give
you, and that was actually what the offer is from the prosecution.
[¶] Do you want to accept that offer?” Appellant responded, “Yes,
ma’am.” The court then took appellant’s plea.
On August 27, 2018, the court sentenced appellant to 16
months in prison. The court noted that the sentence was “one
third the mid-term of 24 months which is 8 months,” doubled
under the Three Strikes Law. The court imposed and struck an
additional term of one year under section 667.5, subdivision (b).
The court’s minute order stated that two remaining counts
against appellant were dismissed due to plea negotiation.
In May 2019, the Department of Corrections and
Rehabilitation sent the court a letter stating that appellant’s
sentence was incorrect. The letter stated in relevant part, “The
Abstract of Judgment and Minute Order reflect Count 03, PC
182(a)(1), Conspire to commit a crime with one-third the middle
term of 1 year 4 months imposed consecutive, sentenced pursuant
to PC 667(b)-(i) or PC 1170.12 (strike prior). Pursuant to PC
182(a)(6), ‘When they conspire to commit any other felony, they
shall be punishable in the same manner and to the same extent
as is provided for the punishment of that felony.’ The 2nd
Amended Information alleges PC 4573.6(a) as the crime the
defendant conspired to commit. The punishment for PC
4573.6(a), doubled, is 4 years, 6 years or 8 years; therefore, one-
third the middle term is 2 years.”
3
The trial court set a hearing regarding a possible
modification of sentence. Appellant filed a motion asking the
court to “amend his open plea” and requesting that a “concurrent
sentence be imposed.” Defense counsel noted that at prior
hearings, “the parties agreed that Defendant’s 16-month sentence
should remain in place, and that the target felony could be
modified to an offense (i.e. Health and Safety Code, section 11378
[possession of a controlled substance for sale]) that had a
midterm of two years.” Defense counsel stated that “the People
had changed their mind and were now insisting on the two-year
sentence.” The motion asked that the court exercise its discretion
to impose the new sentence as concurrent, rather than
consecutive to appellant’s existing 17-year sentence.
The People filed an “Opposition to Motion to Withdraw
Plea.” The opposition noted that at a recent hearing2 the court
and parties discussed whether appellant should be able to
withdraw his plea. The People noted that the court’s “indicated
ruling was to allow withdrawal.” The People opposed appellant’s
motion because appellant entered an open plea, and therefore he
was not entitled to any “benefit of the bargain.” The People also
asserted that a motion to withdraw the plea was untimely,
because it was made beyond time limitations in section 1018.3
2There is no transcript of this hearing in the record on
appeal.
3Section 1018 states, in part, “On application of the
defendant at any time before judgment or within six months after
an order granting probation is made if entry of judgment is
suspended, the court may, and in case of a defendant who
appeared without counsel at the time of the plea the court shall,
for a good cause shown, permit the plea of guilty to be withdrawn
and a plea of not guilty substituted.”
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At the hearing on September 24, 2019, the trial court
stated that the Department of Corrections and Rehabilitation
was correct that “the appropriate sentence would have been two
years.” The court stated that it did not have authority to
withdraw the plea, and that an error in sentencing could be
corrected at any time. The court determined that it was
“required by law to correct an illegal sentence.” The court
therefore sentenced appellant to two years, to run consecutive to
appellant’s existing sentence. The court stated that the one-year
section 667.5, subdivision (b) enhancement would remain
stricken, and “everything else will remain the same.”
Appellant appealed. In his notice of appeal, appellant
checked the box stating that his appeal was “based on the
sentence or other matters occurring after the plea that do not
affect the validity of the plea. (Cal. Rules of Court, rule
8.304(b).)” Appellant did not check the box stating that he was
challenging the validity of the plea, and he did not seek a
certificate of probable cause. (See § 1237.5, subd. (b).)
On appeal, appellant’s appointed counsel filed a brief requesting
that we independently review the record for error. (Wende,
supra, 25 Cal. 3d 436, 441.) We directed counsel to send the
record and a copy of the brief to appellant, and notified appellant
of his right to respond within 30 days. We have received no
response.
DISCUSSION
We have examined the entire record, and are satisfied no
arguable issues exist in the appeal before us. (Smith v. Robbins
(2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal. 4th 106,
110; Wende, supra, 25 Cal.3d at p. 443.)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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