P. v. Thomas





Filed 4/18/11 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Plaintiff and Respondent, v. MICHAEL LEE THOMAS, Defendant and Appellant.

D058167 (Super. Ct. No. SCD223353)

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.

This appeal arises out of Michael Lee Thomas's plea of guilt to eight counts of robbery and two counts of carjacking and proceeds in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende).
FACTUAL AND PROCEDURAL BACKGROUND
During September and October of 2009, Michael Lee Thomas used a handgun to hold up seven 7-Eleven convenience stores and a Subway restaurant. After the last of these incidents, Thomas forcefully attempted to commandeer two different vehicles from their owners' possession for his own use, but was unsuccessful in accomplishing his goal. He was apprehended, arrested and charged with eight counts of robbery (counts 1 through 7 and 10) and two counts of carjacking (counts 8 and 9), one of which included special allegations that he inflicted great bodily injury on an elderly person, arising out of these incidents. The felony complaint also alleged that Thomas had four prison priors, two serious felony priors and two strike priors.
During an inventory search of the vehicle Thomas drove to the last robbery,^[1] the police found the identification cards for two of the victims whose wallets he took and clothes worn by the assailant during the robberies. Thomas later filed a motion to suppress evidence seized from the car, contending that the prosecution had the burden of establishing that the warrantless search was reasonable. The prosecution argued in response that the search was valid: (1) because Thomas lacked standing to challenge a search of the vehicle, which was itself stolen and thus did not accord him any reasonable expectation of privacy; (2) because he used the stolen vehicle as an instrumentality to carry out one of the robberies; and (3) as incident to his arrest. The court denied the suppression motion, finding that Thomas had taken the car without the owner's consent and had used the car in committing one or more of the robberies, and concluding that he lacked standing to object to the search and that, even if standing otherwise existed, the car was subject to search as an instrumentality used to commit the offense.
Thomas subsequently agreed to plead guilty to all counts and to admit his prison priors and one strike prior. At the change of plea hearing, Thomas gave sworn testimony that he had not consumed any alcohol, nor used any drugs or narcotics in the preceding 24 hours, and that, with the assistance of counsel, he had read and understood the terms of his plea agreement. The court advised him of his constitutional rights to a speedy trial by jury, to remain silent, to present evidence in his defense and to confront the witnesses against him, he agreed to waive those rights and enter the plea. The court also advised Thomas of the penal consequences of his plea, including: (1) the maximum punishment; (2) that by admitting 10 serious or violent felonies, he would be subject to mandatory prison time and substantially increased penalties if he committed another felony in the future; (3) that he would be subject to deportation if he was not a United States citizen; and (4) that he would have to serve at least 85 percent of the stipulated sentence. Thomas entered a guilty plea, with the agreement of his counsel. The court accepted Thomas's plea and dismissed the serious felony priors and one of the strike priors "based on law, not the [plea] agreement" and the remaining enhancement allegations.
At the sentencing hearing, Thomas moved for dismissal of his strike prior. The court denied the motion "[d]ue to the violent nature of the current offenses, and the lengthy and violent criminal history," and sentenced Thomas to prison for 35 years eight months, consisting of: (1) nine years (the upper term of four and one-half years, doubled), plus five years for the great bodily injury of an elderly person enhancement, on count 9; (2) one year eight months (one-third the mid-term, doubled), consecutive, on count 8; (3) two years (one-third the mid-term), consecutive, for each of the robbery counts (1 through 7 and 10); and (4) one year for each of his four prison priors. The court awarded Thomas custody credits of 380 days (331 days in actual time, and 49 days of conduct credits). The court ordered Thomas to pay $768 in victim restitution, reserving the victims' rights to seek additional restitution, and imposed a $10,000 restitution fine, a $10,000 parole revocation restitution fine (suspended unless parole was later revoked), a $300 court security fee and a $300 criminal conviction assessment.
Thomas appeals. His appellate counsel has filed a brief indicating that he has been unable to identify any argument for reversal and instead, asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), the brief identifies the following issues as possible, but not arguable, on appeal: (1) Did the court err by not suppressing the evidence seized from the car‌ and (2) Did the court err in denying Thomas's motion to strike his strike prior‌ This court invited Thomas to file a supplemental brief. He did not respond.
DISCUSSION
We have reviewed the record in accordance with Wende and Anders and not found any reasonably arguable appellate issues. Thomas has been represented by competent counsel on this appeal.
DISPOSITION
The judgment is affirmed.

AARON, J.

WE CONCUR:



McCONNELL, P. J.



McINTYRE, J.

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