P. v. Thomas CA2/3

Filed 7/23/13 P. v. Thomas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE

THE PEOPLE, B240461

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA045335)
v.

KEITH P. THOMAS,

Defendant and Appellant.

APPEAL from an order of the Los Angeles County Superior Court, Patricia M.
Schnegg, Judge. Affirmed.

Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant.

No appearance for Plaintiff and Respondent.
 Defendant and appellant, Keith P. Thomas, appeals from the trial court‟s order
denying his petition for writ of error coram nobis filed with regard to four superior court
cases: Nos. BA036950, A741808, YA045335 and BA047233.1 We affirm the trial
court‟s order.
FACTUAL AND PROCEDURAL BACKGROUND
After having been released from Metropolitan Hospital, on June 7, 1989 in Case
No. A741808, Thomas pled no contest to one count of former Penal Code section 12025,
subdivision (b),2 being a convicted felon in possession of a concealed firearm. On
February 14, 1990, the trial court sentenced Thomas to the low term of one year four
months in prison.
In an information filed on May 7, 1991, Thomas was charged in Case
No. BA036950 with one count of second degree burglary of a vehicle in violation of
section 459. Following a hearing held on August 7, 1991, the public defender assigned to
Thomas declared a doubt as to Thomas‟s competence. Proceedings were suspended and
two doctors were appointed to evaluate Thomas pursuant to Evidence Code sections
1017, 952 and 730. However, when each of the doctors went to the jail to evaluate
Thomas, he refused to see them. Accordingly, at proceedings held on September 18,
1991, a pretrial conference was set for October 23, 1991. On February 24, 1992, Thomas
pled guilty to second degree burglary of a vehicle in violation of section 459. The trial
court sentenced Thomas to the mid-term of two years in prison and ordered the sentence
to run concurrently with any “prior uncompleted sentence(s).”
Also on February 24, 1992, in Case No. BA047233, Thomas pled guilty to
possession of a deadly weapon (a shank) while lawfully confined in a jail or state prison
in violation of section 4574, subdivision (a). The trial court sentenced Thomas to the low

1
See Penal Code section 1237, subdivision (b).
2
All further statutory references are to the Penal Code unless otherwise indicated.

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term of two years in prison and again ordered the sentence to run concurrently with any
“prior uncompleted sentence(s).”
Thomas was apparently paroled in Case Nos. BA036950 and BA047233
“sometime between February 1992 and December 1996.” “[I]n December 1996 he was
arrested and charged in Case No. BA143056 with robbery and kidnapping to commit
robbery.” However, “[o]n March 27, 1997, the People announced . . . they were unable
to proceed [with the matter] and the [trial] court dismissed the case.”
Following a court trial in Case No. YA045335, on November 16, 2001 Thomas
was found guilty of two counts of knowingly and willingly threatening the life of a judge
in violation of section 76, subdivision (a) and six counts of making terrorist threats in
violation of section 422. At proceedings held on December 21, 2001, the trial court
declared a doubt as to Thomas‟s competency and stayed the criminal proceedings
pursuant to section 1368, subdivision (a). Pursuant to section 1369, the court appointed
Drs. Kaushal Sharma and Richard J. Lettieri to examine Thomas. At proceedings held on
May 17, 2002, after reading the reports submitted by the two doctors, the trial court found
Thomas competent and reinstated the criminal proceedings. Sentencing was set for
June 19, 2002.
At sentencing, the trial court selected count 2 (making terrorist threats in violation
of section 422) as the base term and imposed the upper term of three years in state prison.
The court then imposed an additional five years for the finding Thomas had suffered a
prior serious felony conviction pursuant to section 667, subdivision (a)(1). For counts 3,
4 and 6 (making terrorist threats), the trial court imposed one-third the mid-term, or eight
months as to each count, the terms to run consecutively to those imposed with regard to
count 2 and to each other. For counts 7 and 8 (making terrorist threats), the trial court
imposed as to each count the upper term of three years, the terms to run consecutively to
the base term imposed with regard to count 2. With regard to counts 1 and 5 (threatening

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a judge), the court stayed imposition of sentence pursuant to section 654.3 In total,
Thomas was sentenced to 10 years in prison. The court awarded Thomas presentence
custody credit for 650 days actually served and 325 days of good time/work time, or 975
days. The trial court then ordered Thomas to pay a $200 restitution fine (§ 1202.4,
subd. (b)) and a stayed $200 parole revocation restitution fine (§ 1202.45).
On August 15, 2002, Thomas filed a timely notice of appeal from his convictions
in Case No. YA045335. However, on January 15, 2003, as Thomas had failed to respond
to the trial court‟s notice regarding representation on appeal, the court ordered the appeal
“dismissed as abandoned.”
Just prior to the dismissal of his appeal, on January 6, 2003 the trial court received
from Thomas a petition for a writ of habeas corpus. At proceedings held on January 24,
2003, the trial court denied the petition, indicating it was “unintelligible in its request,
and [was] further barred as [Thomas] ha[d] not thus far sought appropriate appellate
relief . . . . Also, the writ present[ed] issues that could have been presented in earlier
petitions and [was] therefore barred.”
On February 3, 2003, the trial court filed an order indicating that, “good cause
appearing, the order of dismissal filed January 15, 2003 [was to be] vacated and the
appeal [with regard to Case No. YA045335] . . . reinstated.” The trial court directed the
California Appellate Project to appoint counsel for Thomas “forthwith.” On appeal, the
matter was affirmed in full and the remittitur issued on July 6, 2004.
Since his conviction in Case No. YA045335 was affirmed on appeal, Thomas has
filed a number of in propria persona writ petitions, the most recent of which was a
petition for writ of error coram nobis filed in the trial court on December 12, 2011. The
petition consisted of a document over 130 pages in length “seeking writs of error coram
nobis [in] four cases because „petitioner had been intoxicated with anti-psychotic

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Section 654 provides in relevant part: “(a) An act or omission that is punishable in
different ways by different provisions of law shall be punished under the provision that
provides for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision.”

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medications during the plea bargaining sessions and that constitute[d] incompetence
under [section] 1368 . . . .‟ The specific cases referred to included: [¶] BA036950 –
sentenced 2/24/92 – 2 years state prison[,] [¶] A741808 – sentenced 2/14/90 – 16 months
state prison[,] [¶] YA045335 – sentenced 6/19/02 – 10 years state prison [and] [¶]
BA047233 – sentenced 2/24/92 – 2 years state prison[.] [¶] In each case, [Thomas]
include[d] reams of paper for service on the District Attorney of Los Angeles County and
the Attorney General of California. He ask[ed] the court to serve his documents.”
The trial court denied the petition for relief as to each cited case. The court
indicated Thomas had made “a general statement and offer[ed] nothing to support it. His
conclusory allegation about incompetence [was] without merit. (See People v. Karis
(1988) 46 Cal.3d 612, 656.) [¶] [Moreover, Thomas was] responsible for service on all
necessary parties and [could] not rely on the court for assistance.”
On February 6, 2012, Thomas filed a notice of appeal from the trial court‟s order.
CONTENTIONS
After examination of the record, appointed appellate counsel filed an opening brief
which raised no issues and requested this court to conduct an independent review of the
record. By notice filed January 3, 2013, the clerk of this court advised Thomas to submit
within 30 days any contentions, grounds of appeal or arguments he wished this court to
consider. On January 16, 2013, Thomas filed a request for an extension of time, to
April 15, 2013, to file a supplemental brief. This court granted the request. On March 4,
2013, this court granted Thomas a second extension, allowing him to file his
supplemental brief up to and including May 15, 2013.
On March 11, 2013, Thomas filed a letter brief in which he asserted his appellate
counsel had been ineffective for failing to obtain for him portions of the record, as well as
the district attorney‟s file. Thomas claimed he needed these documents to disprove the
district attorney‟s assertion in Case No. YA045335 that he wrote threatening letters to the
judge. The contention is without merit. Attached as exhibits to Thomas‟s document are
two orders previously issued by this court. In an order filed June 27, 2012, this court
stated: “Having read and considered Thomas‟ pro per request for a copy of the record on

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appeal in the above matter, [the court] hereby DENIES said request. Thomas was
represented on appeal by appointed counsel who filed an opening brief which raised no
issues and asked this court to conduct an independent review of the record. (See People
v. Wende (1979) 25 Cal.3d 436.) We directed appointed appellate counsel to forward the
record on appeal to Thomas who thereafter filed a supplemental letter brief in which he
raised numerous issues which we rejected. (People v. Thomas (April 27, 2004, B161765)
[nonpub. opn.].) Because it thus appears Thomas already has been provided a copy of the
record on appeal, and he has failed to state grounds that would warrant providing him a
second copy thereof, his request is denied. Thomas‟s further request to reinstate the
appeal similarly is denied.”
In a second order, issued by this court on July 30, 2012 and provided as an exhibit
by Thomas, this court stated: “Having read and considered Thomas‟ renewed requests
for a copy of the record on appeal and to reinstate the appeal in the above matter, [the
court] hereby DENIES said requests. Thomas asserts prison officials lost his copy of the
record on appeal when he was transferred from one prison to another. He claims he
needs another copy of the record to show the prosecutor violated his substantive rights by
charging six counts of making a criminal threat in violation of . . . section 422, based on a
single threatening letter. However, the unpublished opinion filed January 28, 1991,
indicates Thomas wrote two threatening letters and each letter threatened a judge, a
prosecutor and an investigator. Moreover, the relevant facts are contained in this court‟s
unpublished opinion.[4] Thus, Thomas has failed to demonstrate good cause to provide
him a second copy of the record on appeal in this case.”

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The unpublished opinion in People v. Thomas, Case No. B161765, filed April 27,
2004, indicates that in 1999, Judge James Brandlin “presided over a case in which three
Rolling Nineties street gang members were accused of shooting a child who was killed in
gang cross fire. The defendants pled guilty and were sentenced to prison. On
August 21, 2000, Judge Brandlin received a letter threatening his life, the life of the
prosecutor that handled the cross fire case, Valerie Cole, and the investigating officer in
the case, Mark Campbell. The author of the letter indicate[d] he [was] a „shot caller‟
from the Rolling Nineties street gang. The letter threatened that if the gang member

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 Here, as in his previous petitions, Thomas has failed to show good cause
demonstrating it is necessary that he be provided with another copy of the record and
portions of the district attorney‟s file in Case No. YA045335. Accordingly, it cannot be
concluded his appellate counsel was incompetent for failing to attempt to procure these
records for him. (See Strickland v. Washington (1984) 466 U.S. 668, 669, 693-694;
People v .Carter (2003) 30 Cal.4th 1166, 1211; see also In re Spears (1984) 157
Cal.App.3d 1203, 1210-1211.)
Thomas filed a second supplemental brief on April 25, 2013. In this brief, he
asserted that, with regard to his 1989 Case No. A741808 in which he pled no contest to
one count of former section 12025, subdivision (b), being a convicted felon in possession
of a concealed firearm, the trial court failed to give him the opportunity to show he was
factually innocent, his trial counsel was ineffective and the prosecutor “withheld
information.” As to his first contention, in his brief Thomas indicates he found a gun
under a bus stop bench, picked it up and placed it in his pocket. Although he claims he
intended to take the gun to a police station where he could turn it in, when he was later
stopped and searched by police officers, he was found to be in possession of the weapon.
Moreover, rather than go to trial on the matter, at proceedings held on June 7, 1989
Thomas chose to admit he was a convicted felon in possession of a concealed firearm by
entering a plea of no contest to the offense.
With regard to his assertion his trial counsel was ineffective, Thomas claims his
public defender failed to properly investigate the matter and to obtain pertinent records
from the district attorney. In particular, Thomas indicates his counsel failed to obtain
records regarding his history of mental illness. Although Thomas has attached as exhibits
to his brief some documents which appear to pertain to his mental health, it is unclear
from the records provided what Thomas‟s mental state was on June 7, 1989, the day he
entered his plea. The only document which indicates Thomas needed to be involuntarily

defendants in the cross fire case were not returned to court by October 31, 2000, Judge
Brandlin, the prosecutor and the investigator would be killed and Judge Brandlin‟s
courtroom would be bombed.”

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medicated to “prevent a deterioration of his mental or physical condition” is a petition
filed by the California Department of Corrections dated August 2, 1995, several years
after Thomas entered his plea in Case No. A741808.
Finally, Thomas asserts the district attorney withheld information from his
counsel. Thomas indicates the district attorney failed to inform his counsel that, before
Thomas was detained and arrested by police officers, the officers had received a 911 call
indicating “a man [was] yelling at [a bus stop at] the corner of Hilgard Avenue and
Wynton.” When officers arrived at that location, they found Thomas. One of the officers
was familiar with Thomas “from previous contacts” and when he conducted a pat-down
search for weapons, the officer found a “loaded blue steel colt .380 caliber automatic
pistol . . . inside [Thomas‟s] top left pocket.”
Apart from whether the district attorney kept this information from Thomas‟s
counsel, Thomas has failed to show it caused him prejudice. If anything, the evidence
would have been inculpatory.
On April 25, 2013, Thomas filed an “Ex Parte Application/Affidavit to remand
case [No.] BA036950 to [the] Los Angeles Superior Court . . . for Arraignment.” In his
application, Thomas again asserted because the district attorney had withheld
information, he was entitled to withdraw his plea and proceed to trial on the matter. He
asked this court to remand both Case No. BA036950 and Case No. BA047233 to the
Los Angeles Superior Court and to direct the court to allow him to withdraw his pleas
and go to trial. He argued he is innocent of the charges and should be allowed to proceed
by having a jury trial in both matters.
Thomas, however, pled guilty in both cases in 1992. He then failed to seek
review; he did not file notices of appeal and requests for certificates of probable cause.
Moreover, in the present supplemental brief, he does not indicate he has discovered new,
exculpatory evidence. His statement, without corroboration by independent, objective
evidence is insufficient to warrant relief. (In re Alvernaz (1992) 2 Cal.4th 924, 938, 945.)
In the additional supplemental brief filed on April 25, 2013, Thomas argued his
2002 conviction in case No. YA045335 was unlawful. However, as stated above, the

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judgment which was entered following a court trial was affirmed on appeal by this court
in People v. Thomas, supra, B161765. According to Thomas, the California Supreme
Court then denied review and his petition for a writ of habeas corpus was denied by the
United States District Court (Central). In this additional brief, Thomas argues only one
new point: that his delay in bringing this claim is justified. He asserts he failed to bring
the claim earlier because he is a “layman in law,” lacks even a grade school education
and was unable to understand how to make use of the exhibits provided to him.
However, “[a] defendant appearing in propria persona is held to the same standard of
knowledge of law and procedure as is an attorney.” (People v. Clark (1990) 50 Cal.3d
583, 625; see also Faretta v. California (1975) 422 U.S. 806, 834-835, fn. 46.) Thomas
had been provided a copy of the record on appeal and the relevant facts are contained in
this court‟s unpublished opinion which was filed in April 2004, approximately seven
years before he filed the petition for writ of error coram nobis in the trial court. Finally,
as the trial court indicated, Thomas has made “general statement[s] and offer[ed] nothing
to support [them.]”
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully
with counsel‟s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People
v. Wende (1979) 25 Cal.3d 436, 443.)

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 DISPOSITION
The trial court‟s order denying Thomas‟s petition for writ of error coram nobis is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KLEIN, P. J.

We concur:

CROSKEY, J.

KITCHING, J.

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