People v. Thomas CA2/6

Filed 8/20/20 P. v. Thomas CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B298887
(Super. Ct. No. 2015004140)
Plaintiff and Respondent, (Ventura County)
v.
GREGORY ROMEL THOMAS,
JR.,
Defendant and Appellant.
Gregory Romel Thomas, Jr., appeals from the
judgment after a jury convicted him of assault with a deadly
weapon on a police officer. (Pen. Code,1 § 245, subd. (c).) Thomas
admitted he suffered two prior serious felony convictions (§ 667,
subd. (a)) and two prior strike convictions (§§ 667, subds. (b)-(i),
1170.12). The trial court sentenced him to 25 years-to-life in
state prison.
1 Further unspecified statutory references are to the Penal
Code.
Thomas contends (1) his trial counsel rendered
ineffective assistance, (2) the trial court erred when it denied his
Romero motion,2 and (3) his sentence as a third strike offender
was unauthorized. We affirm.
FACTS AND PROCEDURAL HISTORY
A shop owner reported a crime and directed police
officers to a Toyota Corolla in the parking lot. As Thomas was
pulling out of the parking stall and driving the Corolla toward
the officers, one of the officers tried to stop the Corolla. The
officer walked in front of the car, held up one hand, and shined a
flashlight on “strobe mode” toward the front of the car.
Thomas accelerated towards the officer at
approximately 15 to 20 miles per hour. The officer pushed off the
hood of the car to move out of the way. The officer testified that
had he not done so, Thomas would have run him over.
After the jury’s conviction, Thomas retained new
counsel and moved to strike his two prior strike convictions
pursuant to Romero. Thomas argued, among other things, that
his prior strikes were 25 years old and that he did not intend to
injure the officer.
The trial court reviewed the probation report, which
included Thomas’s criminal history. The probation report stated
that in 1994, Thomas was convicted of two separate armed
robberies by an Oklahoma state court. He was also convicted in
federal court of conspiracy to commit carjacking. He was
released from prison in November 2001 and placed on supervised
release for three years. In December 2002, he was convicted of
loitering for the purpose of prostitution and placed on probation
2 People v. Superior Court (Romero) (1996) 13 Cal. 4th 497
(Romero).
2
for 24 months. In July 2003, Thomas was convicted of providing
false information to a police officer and ordered to serve 60 days
in jail. In August 2003, Thomas’s supervised release was
revoked, and he was ordered to spend eight months in federal
prison.
In May 2007, Thomas was convicted of disorderly
conduct by a Georgia state court and was placed on probation for
six months. In March 2008, Thomas was arrested, and in
October 2008, he was convicted of possessing counterfeit currency
and sentenced to 24 months in custody. In December 2009, he
was placed on supervised release for five years. In April 2010,
Thomas was convicted of forgery by a Georgia state court and
was placed on probation for three years nine months and ordered
to serve 15 months in jail. In March 2012, Thomas was convicted
in federal court of passing counterfeit obligations or securities
and was sentenced to 33 months in federal prison. In February
2014, he was placed on supervised release for 36 months. A year
later, he committed the current offense.
At the hearing, the court stated:
I am aware of my discretion to strike a strike, and I
have read and considered the briefing in this case
and the requests made by the Defense.
However, the crime involved here was violent in
nature and it involved the potential for death or great
bodily harm.
Defendant’s prior convictions are numerous. And I
understand that the strikes are remote in time.
3
But over the past 20 years, the defendant has served
both state and federal prison terms and his criminal
history spans across multiple states.
The instant conduct occurred when defendant was on
probation, parole or both.
And efforts at the defendant’s rehabilitation have
been numerous and unsuccessful.
When I look at the case law, and frankly, just the
spirit of the law, I cannot justify striking a strike in
this case.
The prosecutor argued that Thomas was a “lifelong
career criminal.” The prosecutor asserted that “the longest time
[he] has gone without incarcerating was a two-year period. And
even during that two-year period, he was on either probation or
parole. He has never in his adult life not been on probation or
parole.”
Defense counsel disagreed with the prosecutor and
asserted that from “2004 to 2008, Mr. Thomas had four years in
which he was not under any form of supervision.” Counsel noted
that he had been on the case for a “limited time” and that he was
“working with some limited documents.”
The trial court denied the Romero motion. The court
found that Thomas was a “career criminal” and that his conduct
in the current offense was “inherently dangerous.”
4
DISCUSSION
Ineffective Assistance of Counsel
Thomas contends he received ineffective assistance
when his counsel did not obtain “a current and accurate copy” of
Thomas’s criminal history and did not ask for a continuance to do
so. He argues that had counsel done so, “he would have had
documentation showing that [Thomas] did enjoy at least one four-
year period of time in which he was not in jail/prison or on
probation/parole.” We are not persuaded.
A defendant claiming ineffective assistance of counsel
has the burden to show (1) counsel rendered deficient
performance, and (2) prejudice as a result of counsel’s deficient
performance. (Strickland v. Washington (1984) 466 U.S. 668, 687
(Strickland); People v. Riel (2000) 22 Cal. 4th 1153, 1175.) To
show prejudice, the defendant must prove there was a reasonable
probability of a more favorable determination in the absence of
counsel’s deficient performance. (See Strickland, at p. 688.) A
court need not address both prongs of the test before rejecting a
claim of ineffective assistance of counsel. If a defendant fails to
establish either prong, the claim should be denied. (Id. at p. 697.)
Thomas does not show he was prejudiced by counsel’s
failure to obtain his criminal history. The trial court stated it
reviewed the probation report, which included Thomas’s criminal
history. The probation report showed that Thomas was not
incarcerated and was free from probation or parole from
December 2004 to May 2007 and from November 2007 to October
2008. The trial court thus considered these periods in which he
was free from incarceration or supervision.
5
Romero Motion
Thomas contends the trial court erred when it denied
his Romero motion. His contention lacks merit.
We review rulings on Romero motions for abuse of
discretion. (People v. Carmony (2004) 33 Cal. 4th 367, 376
(Carmony).) A trial court has discretion to dismiss a prior strike
for sentencing purposes if the defendant falls outside the spirit of
the “Three Strikes” law. (§ 1385; Romero, supra, 13 Cal.4th at
pp. 529-530.) The trial court “must consider whether, in light of
the nature and circumstances of [the defendant’s] present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal. 4th 148, 161.)
A denial of a Romero motion is an abuse of discretion
only in those “limited circumstances” where a court was unaware
of its discretion, considered impermissible factors, or otherwise
acted in an arbitrary, capricious, or patently absurd manner.
(Carmony, supra, 33 Cal.4th at p. 378.) In the absence of such a
showing, we presume the court acted to achieve legitimate
sentencing objectives and will not set aside its discretionary
determination. (People v. Superior Court (Alvarez) (1997) 14
Cal. 4th 968, 977-978.)
The trial court did not abuse its discretion when it
denied the Romero motion. Thomas, who was 43 years old at the
time of sentencing, had a lengthy criminal history. The strike
offenses occurred in 1994, when he was 19 years old. After he
was released, he continued to commit crimes. The longest period
6
that he was not incarcerated or on probation or parole was only
two and a half years (December 2004 to May 2007). Thomas’s
past attempts to rehabilitate were unsuccessful, and he
committed multiple crimes while he was on probation or parole.
He was also on supervised release when he committed the
current offense. In sum, Thomas’s criminal history reflects that
he was the type of “‘“revolving door” career criminal to whom the
Three Strikes law is addressed.’ [Citation.]” (Carmony, supra, 33
Cal.4th at p. 379; see also People v. Pearson (2008) 165
Cal. App. 4th 740, 749-750 (Pearson) [25-year continuous criminal
history supported a denial of a Romero motion].)
Moreover, the nature of Thomas’s prior strike
offenses and his current offense were serious and dangerous. In
the prior strikes, Thomas and codefendants used a gun to kidnap
and rob their victims of personal items, money, and their car. In
one instance, the victim was “struck . . . with the pistol, thus
inflicting serious and grievous wounds.” In the current offense,
Thomas accelerated his car in an attempt to strike a police
officer. The court properly considered the violent nature of these
offenses.
Thomas contends that his case falls “outside the
spirit of the Three Strikes law” because the majority of his
criminal history “involved financial crimes devoid of any kind of
violence.” It is presumed that the trial court considered all
relevant factors in denying a Romero motion. (Pearson, supra,
165 Cal.App.4th at p. 749.) The record reflects the court
considered the written Romero motion, oral arguments, and the
probation report, which included details of his past crimes. There
was no abuse of discretion.
7
Prior Strikes
Thomas contends his sentence as a third strike
offender was unauthorized because his 1994 out-of-state/federal
convictions were not serious felonies within the meaning of the
Three Strikes law. We review whether a defendant’s prior
conviction qualified as a strike for sufficiency of the evidence.
(People v. Roberts (2011) 195 Cal. App. 4th 1106, 1132-1133.)
Here, Thomas admitted the 1994 offenses were prior
strike convictions. By admitting the prior strike enhancement,
Thomas “waive[d] an appellate challenge to the sufficiency of the
evidence.” (People v. Voit (2011) 200 Cal. App. 4th 1353, 1364.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
8
Ronda J. McKaig, Judge
Superior Court County of Ventura
______________________________
Heather Shallenberger, under appointment by the
Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Scott A. Taryle and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.