California Court of Appeal Dec 15, 2022 No. E072539AUnpublished
Filed 12/15/22 P. v. Thomas CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072539
v. (Super.Ct.No. INF058881)
JAMAR LEVEAL THOMAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff
and Respondent.
1
In June 2007, defendant and appellant Jamar Leveal Thomas and three other men
robbed and beat security guard Wallace Brown. Brown died due to his injuries.
Defendant was convicted of premeditated and deliberate first degree murder, a gang
crime and allegations, robbery, and the special circumstance that the murder was
committed during the commission of a robbery. Defendant was sentenced to life without
the possibility of parole. In 2012, defendant’s convictions were affirmed on appeal
(People v. Thomas (Mar. 29, 2012, D058369) [nonpub. opn.]; hereafter, Opinion).1
On December 31, 2018, defendant filed his petition for resentencing pursuant to
Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Penal Code section 1170.952 (petition).
The petition was summarily denied by the trial court without a hearing. Defendant
appealed, contending that (1) the trial court’s summary denial of his petition for
resentencing was erroneous and remand is necessary for a hearing in accordance with the
statutory requirements of section 1170.95; and (2) his due process rights to a meaningful
opportunity to be heard under the Fourteenth Amendment and under the California
Constitution were violated by the trial court’s summary denial of his petition without
allowing for his appointed counsel to file a reply brief. Both claims essentially attacked
the trial court’s decision to summarily deny the petition.
1 On October 11, 2019, we granted defendant’s request to take judicial notice of the Opinion and his opening brief on direct appeal in case No. D058369.
2 All further statutory references are to the Penal Code unless otherwise indicated. In addition, section 1170.95 was renumbered effective June 30, 2022, to section 1172.6. (Stats. 2022, c. 58 (A.B. 200), § 100, eff. June 30, 2022.) We will refer to the new numbering and current version in this opinion.
2
In an unpublished opinion filed on July 31, 2020, we affirmed the denial of the
petition based on the state of the law at the time. We found that although the trial court
erred by summarily denying the petition based solely on the true finding on the robbery-
murder special circumstance, remand was unnecessary as the facts in the record
supported that defendant committed the first degree murder based on being a major
participant and acting with reckless indifference to human life during the commission of
the robbery.
Defendant filed a petition for review, which was granted. On September 28, 2022,
the California Supreme Court transferred the matter back to this court with instructions to
vacate our previous decision and reconsider the cause in light of People v. Strong (2022)
13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). In Strong,
the California Supreme Court found that felony murder special-circumstance findings
issued by a jury before the decisions of People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), which clarified the terms “major
participant” and “reckless indifference to human life” in the special-circumstance statute,
do not preclude a defendant from making out a prima facie case for resentencing of a
felony-murder conviction, even if the trial evidence would have been sufficient to support
the findings under Banks and Clark. In Lewis, at page 966, the California Supreme Court
found that under section 1172.6, a defendant who files a petition for resentencing in the
trial court is entitled to appointment of counsel and for counsel to have the opportunity to
submit briefing prior to the trial court’s prima facie finding.
3
We vacated our previous opinion and requested that defendant and the People file
supplemental briefs. The People filed its supplemental brief first and conceded that
remand to the trial court for further proceedings pursuant to section 1172.6 is required.
Defendant in his supplemental briefing requests that this court direct the trial court to
issue an order to show cause and hold a hearing pursuant to section 1172.6. We will
remand the matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY3
On June 9, 2007, Wallace Brown was working the graveyard shift as a security
guard at a construction site. The construction site was near a Valero gas station located at
the intersection of Rosa Parks and North Indian Hill Canyon in Palm Springs. At around
2:00 a.m., defendant and three other men were together at the gas station and then drove
in the direction of the construction site.
Approximately 20 minutes later, Brown was discovered lying on the pavement
near a van close to the Valero gas station. Brown was bleeding, he had significant
injuries to his head and left arm, and he had vomited and pieces of his teeth came out.
Brown eventually died from his injuries. An autopsy revealed he had a fractured nose,
broken teeth, lacerations on his hands, and bruising on his head. He died of an internal
head injury due to blunt force trauma. Brown’s wallet and cellular telephone had been
taken.
3 The facts are taken from the Opinion.
4
The morning after the incident, defendant voluntarily went to the Palm Springs
Police Department. Defendant recounted several versions of the events that occurred the
prior night. He blamed his cohorts for the injuries to Brown and stated that he tried to
stop them from hurting Brown. One of defendant’s cohorts stated that defendant hit
Brown. Defendant was placed in an interview room with one of the other men and they
blamed a third man for beating Brown.
B. PROCEDURAL HISTORY
Defendant was tried under a theory of aiding and abetting and that he was a major
participant and acted with reckless indifference to human life during the commission of
the robbery. The jury was instructed on aiding and abetting. They were also instructed
that they must determine as to the robbery-murder special circumstance that defendant
acted with the intent to kill or with reckless indifference to human life. As for reckless
indifference to human life, they had to determine whether defendant engaged “in criminal
activity that he knows involves a great risk of death.”
Defendant was convicted of the premeditated and deliberate murder of Brown
(§ 187, subd. (a); count 1); active participation in a criminal street gang (§ 186.22, subd.
(a); count 2); and robbery (§ 211; count 3). In addition, for count 1, the jury found true
the special circumstance that the murder was committed during the commission of a
robbery (§ 190.2, subd. (a)(17)). For counts 1 and 3, the jury also found true the
allegations that the crimes were committed for the benefit of and in association with a
5
criminal street gang (§ 186.22, subd. (b)).4 Defendant was sentenced to life without the
possibility of parole, plus the determinate term of two years. Defendant filed an appeal
raising the sole claim that there was insufficient evidence presented to support that he
acted with reckless indifference to human life to support the robbery murder special
circumstance. Defendant’s convictions were upheld in the first appeal.
On December 31, 2018, defendant filed his petition. In his petition, he stated that
he had been convicted of first or second degree murder based on the felony murder rule.
He declared that he was not the actual killer, he did not have the intent to kill and was not
a “major participant” nor did he act with “reckless indifference to human life during the
course of the crime or felony.” No other documents were provided to the trial court.
On February 26, 2019, the trial court set a status conference for March 8, 2019.
On March 1, 2019, the People filed their response to the petition and opposition to the
issuance of an order to show cause. The People contended that defendant was not
entitled to relief because he was convicted of the special circumstance of robbery murder,
which required a finding by the jury that he acted with reckless indifference to human life
and was a major participant. The People attached the Opinion and the jury verdict on the
first degree murder and the true finding on the special circumstance.
4 In the Opinion, it was stated that defendant was also convicted of other enhancements, including inflicting great bodily injury on Brown within the meaning of section 12022.7, subd. (a). However, according to the probation report, defendant’s opening brief and the transcript from sentencing, the only enhancements for which he was found guilty were the gang enhancements.
6
On March 8, 2019, defendant was appointed counsel. Defense counsel was not
given the opportunity to file a reply to the People’s opposition to the petition. On March
15, 2019, the parties appeared before the trial court. The trial court ruled: “In reviewing
the verdict forms, the jury found that allegation, the special allegation of felony murder
special [circumstance] true. They were appropriately instructed under theories that would
survive a [Senate Bill No.] 1437 analysis. [¶] This matter is summarily denied.”
DISCUSSION
In light of the decisions in Strong, supra, 13 Cal.5th 698 and Lewis, supra, 11
Cal.5th 952, remand to the trial court for further proceedings is necessary.
SB 1437 became effective January 1, 2019. “[SB 1437] modified California’s
felony murder rule and natural and probable consequences doctrine to ensure murder
liability is not imposed on someone unless they were the actual killer, acted with the
intent to kill, or acted as a major participant in the underlying felony and with reckless
indifference to human life.” (People v. Cervantes (2020) 46 Cal.App.5th 213, 220.) As
The trial court’s order denying the petition is reversed and the matter is remanded
for further proceedings pursuant to section 1172.6, as set forth in this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
12
AI Brief
AI-generated · verify before citing
Holding. The court held that a pre-Banks and Clark robbery-murder special circumstance finding does not preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6. Consequently, the trial court erred by summarily denying the petition without allowing for briefing or an evidentiary hearing.
Issues
Whether a pre-Banks and Clark special circumstance finding precludes a prima facie showing for resentencing under section 1172.6.
Whether the trial court erred by summarily denying the petition without allowing appointed counsel to file a reply brief.
Disposition. Reversed and remanded.
Quotations verified verbatim against the opinion
“where a defendant’s “case was tried before both Banks and Clark, the special circumstance findings do not preclude him [or her] from making out a prima facie case for resentencing under section 1172.6.””
“The trial court erred by summarily denying the petition relying on the special circumstance finding.”
“The trial court’s order denying the petition is reversed and the matter is remanded for further proceedings pursuant to section 1172.6, as set forth in this opinion.”