Filed 11/22/21 P. v. Thomas CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081270
Plaintiff and Respondent,
(Super. Ct. No. SC072219A)
v.
LEONARD BRYCE THOMAS, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian
Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Detjen, J. and Smith, J.
INTRODUCTION
In 1998, petitioner Leonard Bryce Thomas was convicted of the second degree
murder of his wife, Lisa Thomas. 1 (Pen. Code,2 § 187, subd. (a); count 1.) For this
offense, he was sentenced to a term of 15 years to life.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The trial court denied the petition on the ground petitioner was convicted as the actual
killer, a disqualifying factor pursuant to section 1170.95, subdivision (a)(3).
On appeal, petitioner argues the court erred by (1) relying on the court file and the
opinion in petitioner’s direct appeal; (2) holding the prima facie hearing in petitioner’s
absence; and (3) denying his facially sufficient petition without issuing an order to show
cause. We reject petitioner’s arguments and affirm.
FACTUAL AND PROCEDURAL HISTORY
Very briefly stated, Lisa was last seen on August 11, 1996, at the apartment she
shared with defendant. Her twin sister reported her missing on August 21, 1996. Lisa’s
body was never recovered. (People v. Thomas (May 25, 2001, F031792) [nonpub. opn.].)
On December 16, 1997, the Kern County District Attorney filed an information
charging petitioner with first degree murder. (§ 187, subd. (a); count 1.) On March 27,
1998, a jury found petitioner not guilty of first degree murder, but guilty of the included
offense of second degree murder. On August 12, 1998, the court sentenced petitioner to a
term of 15 years to life. On May 25, 2001, this court affirmed. (People v. Thomas,
supra, F031792.)
On January 25, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a
complaint, information, or indictment was filed against him that allowed him to be
1 Because the victim and the defendant share the same last name, we refer to Lisa by
her first name. No disrespect is intended.
2 Undesignated statutory references are to the Penal Code.
2.
prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019.
On February 1, 2019, the court appointed counsel to represent petitioner on the
petition.
On March 1, 2019, the People filed a motion to dismiss the petition, arguing
section 1170.95 is unconstitutional. On March 7, 2019, petitioner filed a reply. At a
hearing on March 8, 2019, the court continued the matter to April 24, 2019. On April 3,
2019, petitioner filed a supplemental reply on unconstitutionality. On April 8, 2019,
petitioner’s counsel filed a request for a removal order to ensure petitioner’s presence at
the April 24, 2019 hearing. The court granted the request and ordered petitioner to be
housed in the Kern County jail until the matter was resolved.
At the April 24, 2019 hearing, the court deferred final ruling and set a status
conference for October 25, 2019. Petitioner waived his appearance for that future date.
On October 25, 2019, the matter was continued to February 27, 2020, and counsel waived
petitioner’s presence for the future status conference.
On February 27, 2020, in petitioner’s absence, the court denied the People’s
motion to dismiss and continued the matter to June 5, 2020, for a prima facie hearing.
The court stated that petitioner did not have a right to be present at the prima facie
hearing and that it was counsel’s responsibility to get a removal order if petitioner’s
presence was desired.
On May 1, 2020, the People filed an opposition to the petition on the merits,
arguing petitioner was ineligible for resentencing because the record of conviction
reflected that his conviction was based upon him being the actual killer. On May 20,
2020, petitioner filed a reply, arguing that the verdict was ambiguous as to the theory of
murder he was convicted under.
3.
Petitioner was not present at the June 5, 2020 prima facie hearing. At the start of
the hearing, counsel confirmed she was waiving petitioner’s presence for the hearing.
The court stated: “And the Court will waive his presence as well. He is not entitled to be
present at the prima facie hearing on the petition.” The court noted it was permitted to
consider the record of conviction, and that the evidence and charges were “consistent
with a finding by this Court today that [petitioner] was the actual killer. There was no
theory of aiding and abetting in dangerous conduct of another target offense or felony
murder.” The court further noted, “[T]here was no evidence presented that anyone other
than the defendant committed this homicide.” On that basis, the court concluded
petitioner had failed to establish a prima facie case for resentencing eligibility, and the
petition was denied.
This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless indifference to human life.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three
separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842
(Gentile).) First, to amend the natural and probable consequences doctrine, the bill added
section 188, subdivision (a)(3), which requires a principal to act with malice aforethought
before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at
pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):
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“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”3 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.”4 (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring that: ‘(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[;] [¶] [and] (3) The petitioner could
not be convicted of first or second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.’ (§ 1170.95, subd[]. (a)(1)-(3); see also § 1170.95,
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
3 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
4 The Legislature recently passed, and the Governor signed, a bill amending section
1170.95. (Sen. Bill No. 775 (2021-2022 Reg. Sess.).) The amendments are not yet
effective (Cal. Const., art. IV, § 8, subd. (c)(1)) and, in any event, would not alter our
analysis of the issues raised in this petition. We quote from the version of section
1170.95 presently in effect.
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the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959-960 (Lewis).)
Where the petition complies with the requirements of section 1170.95, subdivision
(b)(1), counsel must be appointed, if requested. The prosecutor must file a response and
the petitioner may file a reply. The trial court must then review the petition to determine
if the petitioner has made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this
determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.)
However, the prima facie inquiry is limited and, at this stage of the proceedings, the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Id. at pp. 971-972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
6.
II. Analysis
A. Record of Conviction
Petitioner first contends the trial court was not authorized to review the record of
conviction, including the jury instructions or appellate opinion, to determine whether he
stated a prima facie claim for relief. Our Supreme Court recently rejected this argument
in Lewis. (Lewis, supra, 11 Cal.5th at pp. 970-971.) Indeed, our Supreme Court has
stated, “The record of conviction will necessarily inform the trial court’s prima facie
inquiry under section 1170.95, allowing the court to distinguish petitions with potential
merit from those that are clearly meritless.” (Id. at p. 971.) Accordingly, the trial court
did not err in considering the record of conviction to determine whether petitioner stated
a prima facie case.
B. Right to be Personally Present
Petitioner next contends he was denied his federal and state due process rights
when the court conducted the prima facie hearing in his absence and without a personal
waiver of his right to be personally present. 5 We disagree.
“A criminal defendant has the right under the state and federal Constitutions to be
personally present and represented by counsel at all critical stages of the trial. For
purposes of the right to be present, a critical stage is ‘one in which a defendant’s
“ ‘absence might frustrate the fairness of the proceedings’ [citation], or ‘whenever his
presence has a relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge.’ ” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335,
465 (Bryant).)
5 Section 1170.95, subdivision (c) does not presently contain an express hearing
requirement. As indicated above, Senate Bill No. 775 (2021-2022 Reg. Sess.) will amend
section 1170.95, effective January 1, 2022. The amendments require the court to hold a
prima facie hearing. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats 2021, ch. 551, § 2.)
The amendments do not affect our analysis of petitioner’s constitutional right to be
personally present at such a hearing.
7.
Sentencing is considered to be a critical stage where a defendant has a right to be
present. (See People v. Doolin (2009) 45 Cal.4th 390, 453.) Likewise, resentencing, in
which the court exercises its discretionary sentencing authority, is another critical stage.
(People v. Simms (2018) 23 Cal.App.5th 987, 996; see People v. Rouse (2016) 245
Cal.App.4th 292, 300.) The initial section 1170.95 prima facie determination, however,
is not a critical stage to which a right of personal presence attaches. It is merely an initial
resentencing eligibility determination based on uncontested facts contained in the petition
and the record of conviction. The prima facie determination involves a question of law
and does not involve the exercise of the court’s discretionary sentencing authority. (See
Lewis, supra, 11 Cal.5th at p. 966 [the substantive question at the prima facie stage is
whether the petitioner is ineligible for relief as a matter of law]; People v. Perry (2006)
38 Cal.4th 302, 312 [“[A] defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the outcome of the case, because
the defendant’s presence would not contribute to the fairness of the proceeding.”].)
There is therefore no possibility the petitioner’s absence will frustrate the fairness of the
proceedings. (See Bryant, supra, 60 Cal.4th at p. 465; accord, Perry, at p. 312.)
Accordingly, petitioner had no constitutional right to be personally present at the
prima facie hearing and the court did not err in ruling in his absence.
C. Petitioner is Ineligible for Resentencing
Finally, petitioner argues he set forth a prima facie case for resentencing that
required the court to issue an order to show cause.
To be eligible for relief pursuant to section 1170.95, petitioner must have been
convicted of felony murder or murder under a natural and probable consequences theory.
(§ 1170.95, subd. (a); accord, Gentile, supra, 10 Cal.5th at p. 853.) Here, the record
establishes that petitioner was not convicted under either theory. The jury was instructed
on the elements of both first and second degree murder, but was not instructed on felony
murder or murder under a natural and probable consequences theory. The prosecution
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argued petitioner was guilty of murder as the actual killer who acted with at least implied
malice. The prosecution did not argue petitioner was guilty of felony murder or murder
under a natural and probable consequences theory. These theories were not presented to
the jury and there is therefore no possibility the jury found petitioner guilty under either
theory. Because petitioner was not convicted of felony murder or murder under a natural
and probable consequences theory, he is ineligible for resentencing as a matter of law.
The court was not required to issue an order to show cause and the petition was properly
denied. (Lewis, supra, 11 Cal.5th at pp. 970-971.)
Petitioner argues the trial court must have engaged in fact finding to conclude he
was not convicted under a natural and probable consequences theory. In this regard, he
contends the jury instructions on implied malice allowed him to be convicted under a
natural and probable consequences theory, and the court could only have disregarded this
theory by engaging in fact finding. We disagree. The challenged instructions provide, in
relevant part, that malice is implied when: “1. The killing resulted from an intentional
act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶]
3. The act was deliberately performed with knowledge of the danger to, and with
conscious disregard for, human life.” (Italics added.) Although the “natural
consequences” language of the instructions is seemingly similar to the natural and
probable consequences doctrine, these are two “distinctly different concepts.” (People v.
Soto (2020) 51 Cal.App.5th 1043, 1056, abrogated on another ground by Lewis, supra, 11
Cal.5th at p. 967; accord, People v. Chiu (2014) 59 Cal.4th 155, 158, abrogated on
another ground by Sen. Bill No. 1437 (2017-2018 Reg. Sess.).) To be convicted of
murder, the person who committed the killing must act with express or implied malice.
(Soto, at p. 1057.) In contrast, an accomplice whose liability for murder is premised on
the natural and probable consequences doctrine “need only intend to aid a different, less
serious ‘target’ crime,” the natural and probable consequence of which is murder. (Ibid.)
Here, the jury was not instructed on the natural and probable consequence doctrine or any
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target crime upon which murder based on a natural and probable consequences theory
could be predicated. The court was not required to engage in fact finding to conclude
that the “natural consequences” language of the malice instruction did not transform
petitioner’s murder conviction as the actual killer into one under the natural and probable
consequences doctrine. (Id. at pp. 1058-1059.)
Accordingly, petitioner is ineligible for relief as a matter of law, and the petition
was properly denied.
DISPOSITION
The order is affirmed.
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