People v. Thomas CA3

Filed 9/10/14 P. v. Thomas CA3 Opinion following rehearing NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer) ----

THE PEOPLE,

Plaintiff and Respondent, C073701

v. (Super. Ct. No. 62107466B)

DAVID EUGENE THOMAS, JR.,

Defendant and Appellant.

Defendant David Eugene Thomas, Jr., committed a home invasion robbery with four companions. Two residents of the home were held at gunpoint while the home was ransacked. Items of personal property were stolen. Defendant pleaded no contest to two counts of residential robbery (Pen. Code, §§ 211, 213, subd. (a)(1)(A)1 -- counts one and two) and two counts of false

1 Undesignated statutory references are to the Penal Code.

1

imprisonment by violence (§ 236 -- counts three and four). He admitted personally using a firearm in the commission of the offenses (§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)) and also admitted three prior strike convictions from a prior juvenile court proceeding (§§ 667, subds. (b)-(i), 1170.12). In exchange for the pleas and admissions, the prosecutor agreed not to file an amended information asserting the prior convictions as a five-year enhancement pursuant to section 667, subdivision (a)(1), and the trial court agreed to consider striking one or more of the prior strike convictions. At sentencing, the trial court dismissed one of the prior strikes and sentenced defendant to an aggregate prison term of 35 years to life (25 to life on count one, plus 10 years consecutive for personally using a firearm, with concurrent terms of 25 to life on counts two, three, and four). On appeal, defendant contends (1) his three prior juvenile court adjudications were not prior convictions under the three strikes law, because the meaning of the Sixth Amendment exception for prior convictions must be ascertained based on what it would have meant to the framers of the Bill of Rights; (2) although the California Supreme Court held otherwise in People v. Nguyen (2009) 46 Cal.4th 1007 (Nguyen), that case was wrongly decided; and (3) the sentences on counts three and four must be stayed pursuant to section 654. We conclude defendant’s first and second contentions are, in essence, a challenge to the validity of his plea, and are not reviewable because he did not obtain a certificate of probable cause.2 (§ 1237.5.) But we agree with his third contention that the sentences on counts three and four must be stayed pursuant to section 654.