People v. Thomas CA4/2 ( 2024 )

Filed 10/3/24 P. v. Thomas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E083904
v. (Super.Ct.No. RIF081220)
RICKY LYNN THOMAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jennifer R. Gerard, Judge.
Affirmed.
Ricky Lynn Thomas, in pro. per.; and Laura Vavakin, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant Ricky Lynn Thomas appeals from the trial court’s order
denying motions for discovery and an evidentiary hearing under the Racial Justice Act
(RJA). (Pen. Code,1 § 745.) For the reasons set forth post, we affirm.
STATEMENT OF THE CASE
On June 30, 1998, a warrant for defendant’s arrest was issued for an offense that
occurred on or about December 12, 1997. “The defendant’s whereabouts were unknown
until his arrest on April 27, 1999, in the state of Texas, for allegations of felony Sexual
Assault and Attempt to Commit Capital Murder [in Texas]. He was sentenced to 25 years
in state prison. The defendant was transported in custody to Riverside County on
December 14, 2001.”
On May 12, 2003, defendant pled guilty to rape by force under section 261,
subdivision (a)(2) (count 1); failing to register as a sex offender under section 290,
subdivision (g)(2) (count 2); and penetration with a foreign object under section 289
(count 4). Defendant also admitted a one-year prison prior sentencing enhancement
under section 667.5, subdivision (b), and a strike prior sentencing enhancement under
sections 667, subdivisions (c), (e)(1) and 1170.12, subdivision (c)(2). In exchange for his
guilty plea, the parties agreed to a dismissal of count 3 (failure to register as a sex
offender under section 290, subdivision (g)(2)), and the one-year prison prior and strike
prior sentencing enhancements. The parties also agreed that defendant would receive a
sentence of 34 years eight months in state prison, consecutive to his present commitment.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
At the sentencing hearing on June 20, 2003, the trial court sentenced defendant to
33 years four months, instead of the agreed-upon term of 34 years eight months; ordered
that defendant’s sentence run consecutive to the sentence he was already serving in
Texas; dismissed count 3, and struck the strike prior. The court noted that defendant had
a ruptured eardrum and directed the jail doctor to examine defendant to make a
determination as to defendant’s safety to fly on an airplane back to Texas.
A. MOTION FOR VIOLATION OF RJA
Almost 21 years later, on March 29, 2024, defendant filed a “Motion Alleging a
Violation of the RJA Pursuant to PC 745” and included a request for discovery. In the
motion, defendant alleged violations under section 745, subdivisions (a)(4)(A), and
(a)(4)(B).
On April 29, 2024, the trial court denied defendant’s motion. In its order, the court
stated as follows:
“Defendant fails [to] state any facts to make a prima facie showing of a violation.
Bare conclusory remarks do not establish a substantial likelihood that a violation
occurred. (See People v. Karis (1988) 46 Cal.3d 612, 656 [in habeas context, conclusory
allegations do not establish a prima facie showing].) Defendant claims that a longer or
more severe sentence was imposed due to his race and the race of the victim as compared
to victims and perpetrators of other races. Specifically, Defendant contends the
prosecution coerced him into a plea which was made under duress by the prosecution and
he was not fully able to understand because he is hearing impaired. However, Defendant
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fails to state any facts under 745(a)(4)(A) and 745(a)(4)(B). Thus[,] Defendant fails to
make a prima facie showing of a violation[.]
“Accordingly, defendant has failed to make a prima facie showing for relief, and
the motion is summarily denied.”
On May 16, 2024, defendant filed a timely notice of appeal.
B. MOTION FOR DISCOVERY
On May 14, 2024, defendant filed a “Motion for Discovery in Anticipation of
Filing a Petition for a Writ of Hab[ea]s Corpus Pursuant to Penal Code section 1054.9.”
(All caps omitted.)
On May 29, 2024, the trial court filed a written order denying defendant’s
“Petition for Writ of Habeas Corpus.” The trial court checked the box indicating that the
denial was based on defendant’s failure “to state a prima facie factual case supporting the
petitioner’s release. (Cal. Rules of Court, rule 4.551(c).) While the petition states a
number of factual conclusions, these broad conclusions are not backed up with specific
details, and/or are not supported by the record in the case.” In addition, the court
attached a written opinion indicating that it was denying defendant’s motion. The court’s
denial was based on the same reasons set forth in its previous written order, as provided
ante. The trial court stated that it was also denying defendant’s request for discovery,
finding there were no facts making “‘a plausible case, based on specific facts, that any of
the four enumerated violations of section 745, subdivision (a) could or might have
occurred.’”
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On June 14, 2024, defendant filed a timely appeal.
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979) 25 Cal.3d
436 (Wende), and Anders v. California (1967) 386 U.S. 738 (Anders). In the brief,
pursuant to Anders, appellate counsel has identified the following issues to assist the
court in its search of the record for error:
1. “Whether the court properly denied [defendant’s] petition for relief pursuant to
Penal Code section 745.” (Bold omitted.)
2. “Whether the trial court properly denied [defendant’s] request for discovery
pursuant to Penal Code section 745.” (Bold omitted.)
3. “Whether the record support’s [sic] a claim of ineffective assistance of counsel on
grounds that defense counsel did not properly inform [defendant] the sentence would run
consecutive, and consequently, that he would not receive any presentence credits.” (Bold
omitted.)
Although this appeal is not subject to Wende review because it is not a direct
appeal from a criminal conviction (People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo)), we have treated this appeal as a Delgadillo appeal and sent a notice to
defendant regarding the filing of a Delgadillo brief, as follows: “Counsel for appellant
has filed a brief stating no arguable issues can be found. Because this is an appeal from
the denial of a post-conviction proceeding, this court is not required to conduct an
independent review of the record but may do so in its discretion. (People v. Delgadillo
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(2022) 14 Ca1.5th 216 []; People v. Serrano (2012) 211 Ca1.App.4th 496.) The appellant
is personally granted 30 days to file any supplemental brief deemed necessary. If
appellant files a supplemental brief, this court will evaluate the specific arguments
presented in that brief in its opinion. (Delgadillo, supra, 14 Ca1.5th 216[].) Failure to
timely file a supplemental brief may result in the dismissal of the appeal as abandoned.”
On August 12, 2024, defendant filed a six-page handwritten supplemental brief
with exhibits. In the brief, defendant raises numerous issues.
First, defendant contends that he accepted his plea agreement “based on
misadvisement.” Defendant states that since he “was misadvised by counsel and the
court, defendant and appellant should be allowed to withdraw his plea.” Defendant also
contends that section 654 “should have been used to run defendant and Appellant case
[sic] concurrently.”
This appeal, however, is not an appeal from defendant’s conviction or sentencing
in the underlying case. Instead, it is from the trial court’s denial of defendant’s motion
for relief due to discrimination and motion for discovery in anticipation of filing a
petition for a writ of habeas corpus. In his declaration in support of his motion for
discovery, defendant wrote that “[i]t is necessary for petitioner to get the necessary
records mentioned in the writ of habeas corpus and data above to review for issues
pertaining to the [RJA].” Defendant’s arguments are not cognizable in a proceeding
regarding the RJA. Our review on this appeal is limited to the trial court’s ruling on the
RJA motion or motion for discovery.
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Next, defendant appears to contend that the trial court erred in denying both of his
motions at the prima facie stage without an evidentiary hearing. We disagree. In denying
defendant’s motion for relief under the RJA, the court wrote the following order:
“THIS COURT, having read and considered defendant’s Motion for Relief Due to
Discrimination pursuant to Penal Code section 745, hereby denies the motion.
“California’s [RJA], codified in section 745, provides, ‘The state shall not seek or
obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race,
ethnicity, or national origin.’ (§ 745, subd. (a).) The court must hold a hearing if the
defendant makes a prima facie showing that a violation occurred. (§ 745, subd. (c).) ‘A
“prima facie showing” means that the defendant produces facts that, if true, establish that
there is a substantial likelihood that a violation of subdivision (a) occurred. For purposes
of this section, a “substantial likelihood” requires more than a mere possibility, but less
than a standard of more likely than not.’ (§ 745, subd. (h)(2), emphasis added.)
“Defendant cites a violation under sections 745(a)(4)(A) and 745(a)(4)(B) and
requests discovery pursuant to the [RJA]. The court will address these two claims.
“Defendant fails [to] state any facts to make a prima facie showing of a violation.
Bare conclusory remarks do not establish a substantial likelihood that a violation
occurred. (See People v. Karis (1988) 46 Cal.3d 612, 656 [in habeas context, conclusory
allegations do not establish a prima facie showing].) Defendant claims that a longer or
more severe sentence was imposed due to his race and the race of the victim as compared
to victims and perpetrators of other races. Specifically, Defendant contends the
7
prosecution coerced him into a plea which was made under duress by the prosecution and
he was not fully able to understand because he is hearing impaired. However, Defendant
fails to state any facts under 745(a)(4)(A) and 745(a)(4)(B). Thus, Defendant fails to
make a prima facie showing of a violation.
“Accordingly, defendant has failed to make a prima facie showing for relief, and
the motion is summarily denied.
“For the foregoing reasons the motion is denied.” (Footnote omitted.)
In denying defendant’s motion for discovery, the court attached the same order
cited above.
We agree with the trial court that defendant, in both of his motions, failed to state
any facts to make a prima facie showing of a violation under the RJA. Therefore, we find
defendant’s arguments to be without merit.
Additionally, defendant appears to be arguing that this court can stay the appeal
and remand to the trial court for an RJA motion to be filed under section 745,
subdivision (b). Section 745, subdivision (b), however, does not apply to defendant on
this appeal.
Section 745, subdivision (b), states that “[a] defendant may file a motion pursuant
to this section, or a petition for writ of habeas corpus or a motion under Section 1473.7,
in a court of competent jurisdiction, alleging a violation of subdivision (a). For claims
based on the trial record, a defendant may raise a claim alleging a violation of
subdivision (a) on direct appeal from the conviction or sentence. The defendant may also
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move to stay the appeal and request remand to the superior court to file a motion pursuant
to this section.”
Section 745, subdivision (b), hence, applies when a defendant is appealing from
the underlying case. This is not an appeal from defendant’s underlying conviction or
sentence.
Finally, defendant claims that his appellate counsel “was ineffective” for “not
raising arguable issues on appeal.” Appellate counsel’s filing of a Delgadillo brief does
not violate either the United States or California Constitution and does not
constitute ineffective assistance of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 119.)
Moreover, defendant has failed to demonstrate any prejudice based upon his claim of
defective representation by counsel. (Strickland v. Washington (1984) 466 U.S. 668, 697;
see In re Crew (2011) 52 Cal.4th 126, 150.)
Based on the above and our independent review of the record, we find that the trial
court correctly determined defendant is ineligible for relief. (Delgadillo, supra, 14
Cal.5th at p. 233.)
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DISPOSITION
The trial court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
FIELDS
J.
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