P. v. Thomas
Filed 11/14/13 P. v. Thomas CA4/1
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opinion has not been certified for publication or ordered published for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,
Plaintiff and Respondent,
v.
BEN
SULLIVAN THOMAS,
Defendant and Appellant.
D063711
(Super. Ct. No. SCD241793)
APPEAL
from a judgment of the Superior Court of
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
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
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
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. 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
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
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.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
