People v. Thomas CA4/1

California Court of Appeal · D063711 · 2013-11-14 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCD241793
Trial judge: Albert T. Harutunian III
Outcome: affirmed — Affirmed.
Area: criminal
Panel: McINTYRE (author), Judith L. Haller, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:48Z · confidence high

The trial court convicted Ben Sullivan Thomas of multiple felonies, denied his motion to strike a prior strike conviction, and sentenced him to a total term of 15 years and 4 months. On appeal, the Court of Appeal affirmed the judgment after finding no arguable issues on independent review, while directing the trial court to correct a clerical error in the abstract of judgment regarding custody credits.

Ruling reviewed	Standard	The court	The model
Denial of motion to strike prior strike conviction “The trial court denied his motion to strike his prior strike conviction for purposes of sentencing.”	unclear	not reached	unsure The opinion does not analyze the merits of the trial court's ruling on the motion to strike; it is mentioned only as part of the procedural history leading to the sentence. The appellate court found no arguable issues on independent review, implying no error was identified in the record regarding this specific ruling.
Clerical error in abstract of judgment (custody credits) “We have inherent power to correct clerical errors in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)”	de novo	correct	agree with court The court identified a discrepancy between the trial court's order (292 days) and the abstract (92 days). It correctly applied its inherent power to correct clerical errors, citing People v. Mitchell, to direct the preparation of a corrected abstract.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed counsel to file a brief identifying arguable issues or, if none exist, to request independent review of the record by the appellate court.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from representation when an appeal is frivolous, requiring a brief identifying any arguable issues and independent review by the court.
relied: People v. Mitchell (2001) 26 Cal.4th 181 — Courts possess inherent power to correct clerical errors in judgments and abstracts of judgment.

The appellate opinion: sound — The opinion is procedurally sound as it correctly follows the Wende/Anders protocol for reviewing a record when appointed counsel finds no arguable issues. It appropriately identifies and corrects a clerical error in the abstract of judgment using the correct legal authority.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Ben Sullivan Thomas of assault with a deadly weapon, criminal threats, false imprisonment and two counts of vandalism, found a deadly-weapon-use allegation true, and after he admitted prior-conviction allegations the trial court denied his motion to strike his prior strike and sentenced him to 15 years 4 months. On appeal appointed counsel filed a Wende brief, Thomas filed nothing on his own behalf, and the Court of Appeal found no arguable issues and affirmed, directing only that a clerical error in the abstract of judgment (92 days of credit instead of the 292 days awarded) be corrected.

Ruling reviewed	Standard	The court	The model
Judgment of conviction on all counts and the deadly-weapon-use finding, reviewed under Wende/Anders independent review “Our review of the record pursuant to Wende has disclosed no reasonably arguable issues on appeal.”	unclear	correct	agree with court The opinion recites substantial evidence from two sets of victims and Thomas's own admissions (kicking the Nunns' car, running at Losoncy with a rock and throwing it) supporting each count; defendant raised no issues personally and the court followed the Wende procedure. Nothing in the recited facts suggests an arguable issue as to the convictions.
Denial of the motion to strike the prior strike conviction for sentencing (Romero motion), swept within the Wende review “The trial court denied his motion to strike his prior strike conviction for purposes of sentencing.”	unclear	correct	unsure The opinion mentions the denial but gives no discussion of the trial court's reasons or the nature of the prior strike, so there is no way to evaluate the ruling beyond the court's general statement that no arguable issue exists. The applicable standard (abuse of discretion) is never stated.
Sentence of 15 years 4 months, including the doubled principal term, concurrent terms, section 654 stay, and consecutive enhancements “It imposed concurrent sentences of four years on the personal use allegation and the second (making a criminal threat), third (false imprisonment) and fourth (vandalism) counts, but stayed the sentence on the false imprisonment count under Penal Code section 654.”	unclear	correct	unsure The opinion's description of the sentence is internally puzzling: it calls four years the 'middle term' for assault with a deadly weapon (the triad for Pen. Code § 245(a)(1) is 2/3/4, so four is the upper term), describes a 'concurrent' four-year term on a personal-use enhancement (an enhancement is imposed or stricken, not run concurrently, and a § 12022(b)(1) term is one year), and explains the 16-month consecutive term as one-third of a four-year middle term for vandalism (it is actually one-third the two-year middle term, doubled by the strike). The arithmetic of the total is consistent with a lawful sentence, so these may be drafting inaccuracies rather than sentencing error, but the opinion does not address them.
Abstract of judgment stating 92 days of total custody credit on Case A rather than the 292 days the trial court awarded “The abstract of judgment erroneously states that Thomas received total credits of 92 days on Case A.”	unclear	error (other)	agree with court The court correctly invoked its inherent power under People v. Mitchell to order correction of a clerical discrepancy between the oral pronouncement and the abstract, and the correction favors the defendant. This is the standard remedy for such an error.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel files a brief raising no issues, the Court of Appeal must independently review the entire record for arguable issues.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and file a brief referring to anything in the record that might arguably support the appeal, with the court then reviewing the record itself.
relied: People v. Mitchell (2001) 26 Cal.4th 181 — Appellate courts have inherent power to correct clerical errors in the abstract of judgment so that it reflects the judgment actually pronounced.

The appellate opinion: sound with gaps — The court followed the Wende/Anders procedure, gave the defendant an opportunity to file his own brief, reviewed the record, and properly ordered correction of a clerical credit error under Mitchell. However, the opinion's own account of the sentence contains terminology that does not match the statutory triads (a four-year 'middle term' for assault with a deadly weapon, a 'concurrent' four-year term on an enhancement), and the opinion neither explains these points nor confirms the sentence was authorized, leaving a gap in an otherwise routine affirmance.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 11/14/13 P. v. Thomas CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063711

Plaintiff and Respondent, (Super. Ct. No. SCD241793) v.

BEN SULLIVAN THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

A jury convicted Ben Sullivan Thomas of two counts of vandalism over $400 and one count each of assault with a deadly weapon, making a criminal threat and false imprisonment by violence, menace, fraud, or deceit. It also found true the allegation that he used a deadly weapon. He later admitted that he had a prison prior conviction, a probation denial prior, a serious felony prior and a prior strike conviction. The trial court denied his motion to strike his prior strike conviction for purposes of sentencing.

It sentenced Thomas to the middle term of four years on the first (assault with a deadly weapon) count, which was deemed the principal count, doubled to eight years as a result of Thomas's prior strike conviction. It imposed concurrent sentences of four years on the personal use allegation and the second (making a criminal threat), third (false imprisonment) and fourth (vandalism) counts, but stayed the sentence on the false imprisonment count under Penal Code section 654. He also received a consecutive sentence of 16 months (one third the middle term of four years) on the fifth (vandalism) count, a consecutive sentence of one year on his prison prior conviction, and a consecutive sentence of five years on the serious prior felony. The total sentence amounted to 15 years, 4 months.

His court-appointed counsel has filed a brief raising no issues, but seeking our independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738. We find no arguable issue and affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 1, 2012, Thomas was involved in incidents where he attacked the occupants of two cars. While driving in the Little Italy section of San Diego, Laura and Travis Nunn noticed a man, later identified as Thomas, walking down the middle of the road. Travis swerved around Thomas, without striking him.

2 Thomas ran up to the car when it was stopped at a red light and kicked the passenger side door. When Thomas tried to open the locked car door, Travis evaded him and the couple called the police. The incident resulted in a dent to the passenger side door of the car, as well as other damage, totaling about $2,230.

Shortly after the incident involving the Nunns, Lauren Losoncy was driving her car from her job located in downtown San Diego. Thomas approached Losoncy's car, kicked the door, jumped on the hood, tried to smash a window and broke off the passenger side mirror. Losoncy proceeded through the red light, but stopped about a block later, because she was not sure whether she should call police or travel home. Losoncy called police and eventually pulled into a gas station. When Losoncy was outside of her car, Thomas knocked her to the ground, climbed on top of her and screamed that he was going to " 'fucking hurt' "

her. Losoncy ran away, but Thomas threw a large rock at her, hitting her in the face and causing her to fall. She was able to escape in her car. Thomas's actions resulted in damage to Losoncy's vehicle totaling about $1,630. The police later contacted the Nunns, who identified Thomas as the person that had accosted them.

The jury heard from several character witnesses who testified, among other things, that Thomas had a reputation as being truthful and peaceful. Thomas also testified in his own defense. He admitted kicking the Nunns' car, but claimed he did so after the car almost reversed into him. Thomas claimed that Losoncy hit him with her car and that caused the mirror of the car to fall off. Eventually, Thomas saw Losoncy go into a gas station. He picked up a rock and ran toward 3 her. Thomas claimed that Losoncy fell as she backed away from him. He admitted throwing the rock in Losoncy's direction, but claimed that he was not trying to hit her.

DISCUSSION

Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by Wende. We granted Thomas permission to file a brief on his own behalf. He has not responded.

Our review of the record pursuant to Wende has disclosed no reasonably arguable issues on appeal. In examining the record in this case, we noticed a typographical error in the abstract of judgment. The trial court ordered total custody credits of 292 days for Case A. The abstract of judgment erroneously states that Thomas received total credits of 92 days on Case A. We have inherent power to correct clerical errors in the abstract of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Competent counsel has represented Thomas on this appeal.

DISPOSITION

The judgment is affirmed. The trial court is directed to prepare a new abstract of judgment to correct a typographical error on the abstract by deleting "92" as the total credits on Case A and replacing it with "292." The trial court shall forward a certified copy of the corrected abstract of judgment to the California Department of Corrections and Rehabilitation.

4 MCINTYRE, J.

WE CONCUR:

BENKE, Acting P. J.

HALLER, J.

Cites, in this corpus

People v. Mitchell S090791 · 2001-07-19
People v. Wende Crim. 20851 · 1979-10-12