People v. Thomas CA4/1

Filed 8/25/21 P. v. Thomas CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078438

Plaintiff and Respondent,

v. (Super. Ct. No. SCD241793)

BEN THOMAS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

In 2012, a jury convicted Ben Thomas of assault with a deadly weapon

(Pen. Code, § 245, subd. (a)(1)),1 making a criminal threat (§ 422), false imprisonment by violence or menace (§ 236), and two counts of vandalism (§ 594, subd. (b)(1)). Thomas was on probation for a robbery conviction (§ 211) at the time of the offenses. Thomas admitted suffering that conviction, which was a serious felony prior (§ 667, subd. (a)(1)) and a strike prior (§ 667, subd. (d)). The trial court sentenced Thomas to an aggregate term of 15 years four months in prison for his current convictions and his earlier robbery conviction. In 2020, the California Department of Corrections and Rehabilitation (CDCR) recommended that the trial court recall Thomas’s sentence and resentence him under section 1170, subdivision (d). The court set a status conference and appointed counsel for Thomas. After the status conference, the court declined to recall Thomas’s sentence. Thomas filed a motion for reconsideration, which the court denied. Thomas appeals. He contends the court abused its discretion by declining to recall his sentence. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND Based on his probation report, the facts underlying Thomas’s 2012 convictions are as follows: Thomas was standing in traffic in downtown San Diego. He walked up to a stopped car, began yelling and screaming, and kicked the car door. The victims were frightened and drove away. Later, Thomas approached a different car, jumped on its hood, and kicked off the driver’s side mirror. That victim also drove away and stopped at a nearby gas station for help. Thomas ran toward the victim, pushed her to the