California Court of Appeal Jan 17, 2023 No. E073036AUnpublished
Filed 1/17/23 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E073036
v. (Super.Ct.No. RIF080665)
JASON LATRELL THOMAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
General, Eric A. Swenson, Arlene A. Sevidal, Lynne G. McGinnis, Michael D. Butera
and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant and appellant Jason Latrell Thomas appeals from a trial court’s order
denying defendant’s petition for relief under Penal Code1 section 1170.95. For the
reasons set forth post, we find that defendant made a prima facie showing that he falls
within the provisions of section 1172.6, and is therefore entitled to a remand for further
proceedings on his petition.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
In 2001, a jury convicted defendant of first degree murder under section 187,
subdivision (a) (count 1), and attempted robbery under sections 211 and 664, subdivision
(a) (count 2). The jury also found true the special-circumstance allegations that
defendant committed the murder during the course of an attempted robbery under section
190.2, subdivision (a)(17); and that in the commission of the murder, a principal was
armed with a firearm under section 12022, subdivision (a)(1). The trial court sentenced
defendant to prison for a term of life without the possibility of parole, plus one year.
Defendant appealed from the judgment. On October 8, 2002, we reduced
defendant’s sentence to 25 years to life because of his juvenile status at the time of the
murder. In all other respects, we affirmed the judgment.
On January 7, 2019, defendant filed a petition for relief under section 1172.6. On
March 11, 2019, the People filed a response. On April 9, 2019, defendant filed a reply
1 All further statutory references are to the Penal Code unless otherwise specified. 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.
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brief in propria persona. At the hearing on April 19, 2019, defendant was represented by
a public defender. Over defense counsel’s objection, the court summarily denied the
petition on the ground that the petition failed to set forth a prima facie case for relief.
On June 14, 2019, defendant filed a timely notice of appeal. In an unpublished
opinion filed on September 11, 2020, we affirmed the denial of the petition based on the
state of the law at the time.
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.
We vacated our previous opinion and requested that defendant and the People file
supplemental briefs. Defendant requests that this court direct the trial court to issue an
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order to show cause and hold a hearing pursuant to section 1172.6. The People agree
with defendant and concede that remand for further proceedings under section 1172.6 is
required. We will remand the matter to the trial court for further proceedings.
B. FACTUAL HISTORY 2
“On April 9, 1998, at 10:00 p.m., Rodney Martin (Martin), then 31 years old,
drove to the Hunt Club apartments in Perris with his brother, Troy Petterway (Petterway),
then 26 years old. Martin and Petterway drove into a carport area and stepped out of the
car. Thomas then approached Petterway on the passenger’s side of the car and asked for
a cigarette.
“Petterway knew Thomas, thought there might be a fight, and kept his attention on
Thomas. Petterway then saw ‘two other guys’ approach Martin on the driver’s side of the
car. He identified one of the two other guys as Banks, but could not identify the other.
Either Banks or the person standing near him said, ‘Break yourself,’ which meant, ‘This
is a robbery.’
“Martin told Banks to ‘get out of his face’ and swung at him. Banks then pulled a
gun out of his jacket and started shooting. Martin said, ‘Run,’ and Petterway ran. As
Petterway ran, he heard Thomas yell ‘Outlaw.’ Within minutes, Martin died of multiple
gunshot wounds.
“Petterway testified that as he was running from the scene he heard several shots
fired, with a pause in between. William Owens (Owens), the maintenance supervisor at
2 The facts are taken from our opinion in prior appeal case No. E029239.
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the apartments and a former weapons instructor in the Marines, also heard two sets of
shots fired, with a pause in between. Owens said that the pause was ‘like somebody was
changing a magazine.’
“Thomas’s brother, Malik Swanigan (Swanigan), testified that he was in an
upstairs apartment when he heard shots being fired. He ran out of the apartment and
halfway down the staircase. From there, he saw Banks shooting Martin. He then saw
Thomas take the gun from Banks and shoot Martin several times.” (Fn. omitted.)
“After the shooting, Swanigan and Thomas went to see Swanigan’s girlfriend,
Nina Burton, in Sun City. Burton told the police that the morning after the shooting she
overheard Thomas on the telephone bragging that he had shot Martin.
“Several days after the shooting, Swanigan and Thomas went to visit [Lisa] Rufus
in Bellflower. There, Thomas confessed to Rufus that he shot Martin, and made
additional statements that incriminated Banks.”
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 J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a defendant whose felony-murder special-circumstance finding predates the decisions in People v. Banks and People v. Clark is not precluded from establishing a prima facie case for resentencing under Penal Code section 1172.6.
Issues
Whether a pre-Banks and Clark special-circumstance finding precludes a defendant from establishing a prima facie case for relief under Penal Code section 1172.6.
Whether the trial court erred in summarily denying the defendant's petition for resentencing.
Disposition. reversed
Quotations verified verbatim against the opinion
“the special circumstance findings do not preclude him [or her] from making out a prima facie case for resentencing under section 1172.6.”