Filed 8/31/20 P. v. Thomas CA4/2 Opinion following rehearing
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074836
v. (Super.Ct.No. SWF011637)
DALE DANTE THOMAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 15, 2007, an information charged defendant and appellant Dale
Dante Thomas and a codefendant with murder under Penal Code section 198, subdivision
(a) (count 2), and murder under Penal Code sections 664 and 187, subdivision (a) (count
3).1 The information also included numerous other allegations.
On March 28, 2011, pursuant to a plea agreement, defendant pled guilty to the
lesser charge of manslaughter under Penal Code section 192, subdivision (a).2 In
exchange, defendant agreed to cooperate with the People in another criminal case.
Defendant also admitted a criminal street gang enhancement under Penal Code section
186.22, subdivision (b), and that he was armed with a firearm under Penal Code section
12022, subdivision (a)(1). On December 19, 2011, pursuant to the plea agreement, the
trial court sentenced defendant to an aggregate term of 30 years in prison.
On February 22, 2019, defendant filed a petition for resentencing under Penal
Code section 1170.95. In the petition, defendant indicated as follows: “I pled guilty or
no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could
have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder
rule or the natural and probable consequences doctrine.”
1 The codefendant was charged in another count of murder; he is not a party to this appeal.
2 Defendant also pled guilty to Penal Code section 211 and Penal Code sections 664 and 187, subdivision (a), regarding a different victim. These guilty pleas are not pertinent to this appeal.
2 Penal Code section 1170.95, which became effective on January 1, 2019, provides
relief for specified individuals convicted of felony murder as aider and abettors, who are
not the actual killers. Penal Code section 1170.95, in pertinent part, states:
“(a) A person convicted of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that sentenced the petitioner to
have the petitioner's murder conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
“(3) The petitioner could not be convicted of first or second degree murder
because of changes to [Penal Code sections] 188 or 189 made effective January 1, 2019.”
On October 10, 2019, the People filed a motion to strike defendant’s petition
alleging that Penal Code section 1170.95 is unconstitutional and that defendant did not
qualify for relief because defendant was convicted of manslaughter, not murder.
On February 7, 2020, the trial court held a hearing on defendant’s motion.
Defendant was not present but was represented by counsel. The trial court granted the
People’s request to dismiss the petition relying on a “new” case, stating: “There’s a
brand new case from this week, People versus, I think it’s, Cervantes. . . . Well, not quite
3 this week. January 30th. . . . But Cervantes stands for the proposition that manslaughter
gets no relief.”3 In People v. Cervantes, the appellate court stated that “[t]he decision not
to include manslaughter in [Penal Code] section 1170.95 falls within the Legislature’s
‘line-drawing’ authority as a rational choice that is not constitutionally prohibited.
[Citation.] ‘[T]he Legislature is afforded considerable latitude in defining and setting the
consequences of criminal offenses.’ [Citation.] A classification is not arbitrary or
irrational simply because it is ‘underinclusive.’ [Citation.] ‘A criminal defendant has no
vested interest “ ‘in a specific term of imprisonment or in the designation [of] a particular
crime [he or she] receives.’ ” ’ [Citation.] ‘Courts routinely decline to intrude upon the
“broad discretion” such policy judgments entail.’ ” (People v. Cervantes, supra, 44
Cal.App.5th at pp. 888-889.)
On February 26, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY4
On April 1, 2005, defendant was the driver of a vehicle involved in a robbery of a
liquor store. The codefendant shot and killed the store clerk during the robbery.
Defendant was an accomplice to the robbery and not the triggerman.
3 There was no citation by the trial court or parties, but we infer the case the trial court was discussing is People v. Cervantes (2020) 44 Cal.App.5th 884, which was decided on January 30, 2020.
4 The brief factual history is taken from the People’s opposition to defendant’s petition; a detailed statement of facts is not pertinent to this appeal.
4 DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and a potential arguable issue, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
(1) “Is [Penal Code] section 1170.95 unconstitutional?”;
(2) “Was there reversible error in not bringing appellant to the resentencing
hearing?”;
(3) “Did the court err in finding that Voluntary Manslaughter, [Penal Code]
section 192, subdivision (a) is not entitled to relief under [Penal Code] section 1170.95?”;
and
(4) “Did the court err in finding that someone who could have been convicted
of Murder but accepted a plea bargain to a reduced charge was not eligible for [Penal
Code] section 1170.95 relief?”
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
An appellate court concludes a review of the entire record to determine whether
the record reveals any issues which, if resolved favorably to defendant, would result in
reversal of modification of the judgment. (People v. Wende, supra, 25 Cal.App.3rd at pp.
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Filed 8/31/20 P. v. Thomas CA4/2 Opinion following rehearing
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, E074836
v. (Super.Ct.No. SWF011637)
DALE DANTE THOMAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1 FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 15, 2007, an information charged defendant and appellant Dale
Dante Thomas and a codefendant with murder under Penal Code section 198, subdivision
(a) (count 2), and murder under Penal Code sections 664 and 187, subdivision (a) (count
3).1 The information also included numerous other allegations.
On March 28, 2011, pursuant to a plea agreement, defendant pled guilty to the
lesser charge of manslaughter under Penal Code section 192, subdivision (a).2 In
exchange, defendant agreed to cooperate with the People in another criminal case.
Defendant also admitted a criminal street gang enhancement under Penal Code section
186.22, subdivision (b), and that he was armed with a firearm under Penal Code section
12022, subdivision (a)(1). On December 19, 2011, pursuant to the plea agreement, the
trial court sentenced defendant to an aggregate term of 30 years in prison.
On February 22, 2019, defendant filed a petition for resentencing under Penal
Code section 1170.95. In the petition, defendant indicated as follows: “I pled guilty or
no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could
have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder
rule or the natural and probable consequences doctrine.”
1 The codefendant was charged in another count of murder; he is not a party to this appeal.
2 Defendant also pled guilty to Penal Code section 211 and Penal Code sections 664 and 187, subdivision (a), regarding a different victim. These guilty pleas are not pertinent to this appeal.
2 Penal Code section 1170.95, which became effective on January 1, 2019, provides
relief for specified individuals convicted of felony murder as aider and abettors, who are
not the actual killers. Penal Code section 1170.95, in pertinent part, states:
“(a) A person convicted of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that sentenced the petitioner to
have the petitioner's murder conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
“(3) The petitioner could not be convicted of first or second degree murder
because of changes to [Penal Code sections] 188 or 189 made effective January 1, 2019.”
On October 10, 2019, the People filed a motion to strike defendant’s petition
alleging that Penal Code section 1170.95 is unconstitutional and that defendant did not
qualify for relief because defendant was convicted of manslaughter, not murder.
On February 7, 2020, the trial court held a hearing on defendant’s motion.
Defendant was not present but was represented by counsel. The trial court granted the
People’s request to dismiss the petition relying on a “new” case, stating: “There’s a
brand new case from this week, People versus, I think it’s, Cervantes. . . . Well, not quite
3 this week. January 30th. . . . But Cervantes stands for the proposition that manslaughter
gets no relief.”3 In People v. Cervantes, the appellate court stated that “[t]he decision not
to include manslaughter in [Penal Code] section 1170.95 falls within the Legislature’s
‘line-drawing’ authority as a rational choice that is not constitutionally prohibited.
[Citation.] ‘[T]he Legislature is afforded considerable latitude in defining and setting the
consequences of criminal offenses.’ [Citation.] A classification is not arbitrary or
irrational simply because it is ‘underinclusive.’ [Citation.] ‘A criminal defendant has no
vested interest “ ‘in a specific term of imprisonment or in the designation [of] a particular
crime [he or she] receives.’ ” ’ [Citation.] ‘Courts routinely decline to intrude upon the
“broad discretion” such policy judgments entail.’ ” (People v. Cervantes, supra, 44
Cal.App.5th at pp. 888-889.)
On February 26, 2020, defendant filed a timely notice of appeal.
B. FACTUAL HISTORY4
On April 1, 2005, defendant was the driver of a vehicle involved in a robbery of a
liquor store. The codefendant shot and killed the store clerk during the robbery.
Defendant was an accomplice to the robbery and not the triggerman.
3 There was no citation by the trial court or parties, but we infer the case the trial court was discussing is People v. Cervantes (2020) 44 Cal.App.5th 884, which was decided on January 30, 2020.
4 The brief factual history is taken from the People’s opposition to defendant’s petition; a detailed statement of facts is not pertinent to this appeal.
4 DISCUSSION
After defendant appealed, and upon his request, this court appointed counsel to
represent him. Counsel has filed a brief under the authority of People v. Wende (1979)
25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of
the case, a summary of the facts, and a potential arguable issue, and has requested this
court to undertake a review of the entire record. Pursuant to Anders, counsel identified
the following issues to assist the court in its search of the record for error:
(1) “Is [Penal Code] section 1170.95 unconstitutional?”;
(2) “Was there reversible error in not bringing appellant to the resentencing
hearing?”;
(3) “Did the court err in finding that Voluntary Manslaughter, [Penal Code]
section 192, subdivision (a) is not entitled to relief under [Penal Code] section 1170.95?”;
and
(4) “Did the court err in finding that someone who could have been convicted
of Murder but accepted a plea bargain to a reduced charge was not eligible for [Penal
Code] section 1170.95 relief?”
We offered defendant an opportunity to file a personal supplemental brief, but he
has not done so.
An appellate court concludes a review of the entire record to determine whether
the record reveals any issues which, if resolved favorably to defendant, would result in
reversal of modification of the judgment. (People v. Wende, supra, 25 Cal.App.3rd at pp.
5 441-442; People v. Feggans (1967) 67 Cal.2d 444, 447-448; Anders v. California, supra,
386 U.S. at p. 744; see People v. Johnson (1981) 123 Cal.App.3rd 106, 109-112.)
The issue on this appeal is similar to the issue discussed in division 1 of this court
in People v. Flores (2020) 44 Ca1.App.5th 985, 992: “This appeal requires us to
determine whether [Penal Code] section 1170.95 permits persons who were convicted of
voluntary manslaughter to have their convictions vacated and to be resentenced.”
(People v. Flores (2020) 44 Ca1.App.5th 985, 992.) The Flores court found that “[b]y its
terms, [Penal Code] section 1170.95 authorizes only a person who was ‘convicted of
felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated.’ ” (Id. at pp. 992-993.) The court reasoned, “[t]hrough its repeated
and exclusive references to murder, the plain language of [Penal Code] section 1170.95
limits relief only to qualifying persons who were convicted of murder. [Penal Code
s]ection 1170.95 does not mention, and thus does not provide relief to, persons convicted
of manslaughter.” (Id. at p. 993.) Because defendant was convicted of manslaughter, the
trial court properly denied defendant’s Penal Code section 1170.95 motion.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error, and find no arguable issue for
reversal on appeal.
6 DISPOSITION
The appeal is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
SLOUGH J.
RAPHAEL J.