People v. Thomas CA4/1

Filed 11/14/13 P. v. Thomas CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063711
Plaintiff and Respondent,
(Super. Ct. No. SCD241793)
v.
BEN SULLIVAN THOMAS,
Defendant and Appellant.
APPEAL from a judgment 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.
No appearance for Plaintiff and Respondent.
A jury convicted Ben Sullivan Thomas of two counts of vandalism over
$400 and one count each of assault with a deadly weapon, making a criminal
threat and false imprisonment by violence, menace, fraud, or deceit. It also found
true the allegation that he used a deadly weapon. He later admitted that he had a
prison prior conviction, a probation denial prior, a serious felony prior and a prior
strike conviction. The trial court denied his motion to strike his prior strike
conviction for purposes of sentencing.
It sentenced Thomas to the middle term of four years on the first (assault
with a deadly weapon) count, which was deemed the principal count, doubled to
eight years as a result of Thomas's prior strike conviction. It imposed concurrent
sentences of four years on the personal use allegation and the second (making a
criminal threat), third (false imprisonment) and fourth (vandalism) counts, but
stayed the sentence on the false imprisonment count under Penal Code section
654. He also received a consecutive sentence of 16 months (one third the middle
term of four years) on the fifth (vandalism) count, a consecutive sentence of one
year on his prison prior conviction, and a consecutive sentence of five years on the
serious prior felony. The total sentence amounted to 15 years, 4 months.
His court-appointed counsel has filed a brief raising no issues, but seeking
our independent review of the record pursuant to People v. Wende (1979) 25
Cal. 3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. We find no
arguable issue and affirm.
FACTUAL AND PROCEDURAL HISTORY
On July 1, 2012, Thomas was involved in incidents where he attacked the
occupants of two cars. While driving in the Little Italy section of San Diego,
Laura and Travis Nunn noticed a man, later identified as Thomas, walking down
the middle of the road. Travis swerved around Thomas, without striking him.
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Thomas ran up to the car when it was stopped at a red light and kicked the
passenger side door. When Thomas tried to open the locked car door, Travis
evaded him and the couple called the police. The incident resulted in a dent to the
passenger side door of the car, as well as other damage, totaling about $2,230.
Shortly after the incident involving the Nunns, Lauren Losoncy was driving
her car from her job located in downtown San Diego. Thomas approached
Losoncy's car, kicked the door, jumped on the hood, tried to smash a window and
broke off the passenger side mirror. Losoncy proceeded through the red light, but
stopped about a block later, because she was not sure whether she should call
police or travel home. Losoncy called police and eventually pulled into a gas
station. When Losoncy was outside of her car, Thomas knocked her to the
ground, climbed on top of her and screamed that he was going to " 'fucking hurt' "
her. Losoncy ran away, but Thomas threw a large rock at her, hitting her in the
face and causing her to fall. She was able to escape in her car. Thomas's actions
resulted in damage to Losoncy's vehicle totaling about $1,630. The police later
contacted the Nunns, who identified Thomas as the person that had accosted them.
The jury heard from several character witnesses who testified, among other
things, that Thomas had a reputation as being truthful and peaceful. Thomas also
testified in his own defense. He admitted kicking the Nunns' car, but claimed he
did so after the car almost reversed into him. Thomas claimed that Losoncy hit
him with her car and that caused the mirror of the car to fall off. Eventually,
Thomas saw Losoncy go into a gas station. He picked up a rock and ran toward
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her. Thomas claimed that Losoncy fell as she backed away from him. He
admitted throwing the rock in Losoncy's direction, but claimed that he was not
trying to hit her.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and
proceedings below. He presented no argument for reversal, but asked this court to
review the record for error as mandated by Wende. We granted Thomas
permission to file a brief on his own behalf. He has not responded.
Our review of the record pursuant to Wende has disclosed no reasonably
arguable issues on appeal. In examining the record in this case, we noticed a
typographical error in the abstract of judgment. The trial court ordered total
custody credits of 292 days for Case A. The abstract of judgment erroneously
states that Thomas received total credits of 92 days on Case A. We have inherent
power to correct clerical errors in the abstract of judgment. (People v. Mitchell
(2001) 26 Cal. 4th 181, 185.) Competent counsel has represented Thomas on this
appeal.
DISPOSITION
The judgment is affirmed. The trial court is directed to prepare a new
abstract of judgment to correct a typographical error on the abstract by deleting
"92" as the total credits on Case A and replacing it with "292." The trial court
shall forward a certified copy of the corrected abstract of judgment to the
California Department of Corrections and Rehabilitation.
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MCINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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