Filed 11/15/22 P. v. Thomas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B315483
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A081621
v.
FREDERICK JERMONE
THOMAS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Leslie E. Brown, Judge. Reversed and remanded
with instructions.
Michael Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Viet H. Nguyen,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant and appellant Frederick
Jermone Thomas of the 1980 murder of Sarai K. Ribicoff. In
2019, Thomas filed a petition for recall and resentencing under
former Penal Code section 1170.95.1 The trial court denied the
petition, concluding the record demonstrated as a matter law
Thomas was the actual killer. On appeal, Thomas argues the
court erred by concluding he was the actual killer without first
issuing an order to show cause and holding an evidentiary
hearing. We agree and reverse the order denying Thomas’s
petition. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing on whether
Thomas is entitled to relief under section 1172.6.
PROCEDURAL BACKGROUND2
The Los Angeles County District Attorney filed an
information charging Thomas with murder. (§ 187, subd. (a).) The
information further alleged Thomas committed the murder
during an attempted robbery and robbery (§ 190.2, subd. (a)(17))
and personally used a firearm (§ 12022.5, subd. (a)). A jury found
Thomas guilty of murder and found true the robbery special
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. For purposes
of clarity, we refer to the statute interchangeably as section
1172.6 and former section 1170.95 depending on the context.
2 We omit recitation of the facts underlying Thomas’s murder
conviction because they are not directly relevant to the issues
presented in this appeal.
2
circumstance and personal gun use allegations. The trial court
sentenced him to life without the possibility of parole.
In 2019, Thomas filed a petition for resentencing under
former section 1170.95. The trial court appointed counsel on his
behalf. The prosecution filed a response to the petition, arguing
Thomas was ineligible for relief because he was the actual killer.
The prosecution attached exhibits to its response, which included
a printout of Thomas’s criminal history, a preliminary hearing
transcript in co-defendant Tony McAdoo’s case that contained
eyewitness testimony of the murder, and police reports
concerning the murder. Thomas filed a motion for an order to
show cause and an addendum asserting he was not the actual
killer. The prosecution submitted records from the Department of
Corrections and Rehabilitation and a copy of the transcript of
Thomas’s sentencing hearing to the court.3 It appears the parties
were unable to obtain much of the record from Thomas’s trial.
At the section 1172.6, subdivision (c) hearing, the court
heard argument from counsel and considered the limited record.
The court denied the petition, concluding Thomas had failed to
make a prima facie showing of eligibility for relief. The court
explained:
The only issue, really, was getting the records, because
[Thomas]’s specific records were not available. The co-
defendant’s, McAdoo’s records were available. McAdoo’s
records, for example, he had a preliminary hearing where
the victim came in and they discussed how he identified
[Thomas] as the shooter in a line-up. So surrounding
3 We granted Thomas’s motion to augment the record to
include these items.
3
information all pointed out [Thomas] was the actual
killer. The only question was finding the specific records
that would demonstrate that. So part of that was trying to
get . . . Attorney General records, as well as in this case
C.D.C.R. records. And the C.D.C.R. records not just
included the record of him in custody, in prison, but also
the record of conviction. And what the record of conviction
shows is that . . . he was convicted of murder. He was
convicted . . . of using the firearm during the course of the
murder. He was convicted of also [assault with a deadly
weapon] using that very same firearm. And was also
convicted of the robbery.
[¶] . . . [¶]
So at this point, at a prima facie stage, it is incumbent on
[Thomas] to show that he qualifies under [1172.6]. And the
key requirement is that he cannot have been the actual
killer. What the record reveals is, convicted of murder,
convicted of murder using a firearm, convicted of assault
with a deadly weapon using the firearm. That is consistent
with what he was convicted of, the actual charges, the
special circumstance and convicted with his sentencing.
[Thomas] has not met that initial stage. And while we say
it is a light stage, in other words, he checks all the boxes.
The court and all the case law basically comes down to, at
this point, [Thomas] is entitled to an attorney, which he
has and has had for a while.
The court can look at the entire record. And what the entire
record reveals is that what he was convicted of would make
him ineligible for [1172.6 relief]. So he cannot meet that
4
burden and is not entitled to an order to show cause
hearing.
The only reliance which he had up until this point was
literally that we could not get the records. Except now we
have the records. And the records reveal, what everything
else reveals, as well, that he was the actual killer in this
case. And as such, he is not qualified for relief under this
Penal Code section.
Thomas timely appealed.
DISCUSSION
I. Governing Law
The Legislature enacted Senate Bill 1437 (SB 1437) “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);
accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).)
SB 1437 also added section 1170.95 to the Penal Code
which, as mentioned above, was later renumbered to section
1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory, but
who could not be convicted of murder following SB 1437’s changes
to sections 188 and 189, to petition the sentencing court to vacate
the conviction and resentence on any remaining counts. (§ 1172.6,
5
subd. (a).) A petition for relief under section 1172.6 must include
a declaration by the petitioner that he or she is eligible for relief
based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a
request for appointment of counsel, should the petitioner seek
appointment. (§ 1172.6, subd. (b)(1).)
Subdivision (c) of section 1172.6 provides: “Within 60 days
after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response.
The petitioner may file and serve a reply within 30 days after the
prosecutor’s response is served. These deadlines shall be
extended for good cause. After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for
relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to
show cause. If the court declines to make an order to show cause,
it shall provide a statement fully setting forth its reasons for
doing so.”
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ ([§ 1172.6], subd. (d)(1).)” (Lewis,
supra, 11 Cal.5th at p. 960.) At the hearing, the parties may rely
on the record of conviction or present “new or additional
evidence” to support their positions, and “the burden of proof
6
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
II. Analysis
Thomas contends his case must be remanded for an
evidentiary hearing. Specifically, he argues the trial court
improperly weighed facts in concluding he was the actual killer
and thus ineligible for relief as a matter of law. The Attorney
General disagrees, arguing the jury’s true finding on Thomas’s
gun allegation, along with the factual summary found in
Thomas’s prior appellate opinion, demonstrate as a matter of law
he was the actual killer. We agree with Thomas. As Thomas
points out in his reply brief, “the factual summary in an appellate
opinion is not evidence that may be considered at an evidentiary
hearing to determine a petitioner’s eligibility for resentencing.
(§ [1172.6], subd. (d)(3) [‘The court may also consider the
procedural history of the case recited in any prior appellate
opinion.’ (italics added)].)” (People v. Flores (2022) 76 Cal.App.5th
974, 988.) “If such evidence may not be considered at an
evidentiary hearing to determine a petitioner’s ultimate
eligibility for resentencing, we fail to see how such evidence could
establish, as a matter of law, a petitioner’s ineligibility for
resentencing at the prima facie stage.” (Ibid., fn. omitted.)
Setting aside the factual summary in the appellate opinion, we
conclude the jury’s true finding on Thomas’s gun allegation,
standing alone, is insufficient to demonstrate as a matter of law
he is ineligible for relief. (See People v. Offley (2020) 48
Cal.App.5th 588, 598 [jury’s finding that defendant personally
used a firearm to commit the crime does not establish ineligibility
7
for 1172.6 relief as a matter of law because it does not prove the
defendant acted with malice aforethought].)
As the Attorney General notes, a victim who witnessed the
murder (John Shoven) offered testimony at the preliminary
hearing of Thomas’s accomplice (Tony McAdoo) that Thomas was
the actual killer. The prosecution included Shoven’s testimony
from McAdoo’s preliminary hearing in its response to Thomas’s
section 1172.6 petition. Although Shoven’s testimony does
support the conclusion that Thomas is ineligible for relief as the
actual killer, we are hesitant to conclude it demonstrates Thomas
is ineligible for relief as a matter of law. Thomas, who was not a
party to McAdoo’s preliminary hearing and indeed was not
present at the hearing, did not have the opportunity to cross-
examine Shoven. Similarly, although the original sentencing
judge’s comments perhaps also support the inference that
Thomas was the actual killer, they are insufficient to
demonstrate ineligibility for relief as a matter of law. We
therefore remand the matter to the trial court for an evidentiary
hearing. At that hearing, the court may consider all admissible
evidence in determining whether the prosecution meets its
burden of proving beyond a reasonable doubt Thomas is guilty of
murder under current law. (See § 1172.6, subd. (d)(3).)
Additionally, although the parties have not briefed this
issue, we note we are concerned Shoven’s testimony from
McAdoo’s preliminary hearing may be inadmissible at Thomas’s
section 1172.6 proceedings. “Through Senate Bill No. 775 (2021-
2022 Reg. Sess.), effective January 1, 2022, the Legislature
clarified the scope of admissible evidence at the evidentiary
hearing. (Stats. 2021, ch. 551, § 2.) The statute now specifies the
Evidence Code governs the admissibility of evidence.” (People v.
8
Mitchell (2022) 81 Cal.App.5th 575, 586; see § 1172.6, subd.
(d)(3).) On remand, the trial court is directed to consider whether
Shoven’s testimony from McAdoo’s preliminary hearing is
inadmissible at his section 1172.6, subdivision (d) hearing in light
of Evidence Code section 1291, subdivision (a).4
4 Evidence Code section 1291, subdivision (a) provides:
“(a) Evidence of former testimony is not made inadmissible
by the hearsay rule if the declarant is unavailable as a
witness and:
(1) The former testimony is offered against a person
who offered it in evidence in his own behalf on the
former occasion or against the successor in interest of
such person; or
(2) The party against whom the former testimony is
offered was a party to the action or proceeding in
which the testimony was given and had the right and
opportunity to cross-examine the declarant with an
interest and motive similar to that which he has at
the hearing.”
9
DISPOSITION
The order denying Thomas’s section 1172.6 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause and hold an evidentiary hearing to determine
whether Thomas is entitled to section 1172.6 relief.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
WILLHITE, J.
10