Filed 10/29/13 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Respondent,                                                     F065744

                   v.                                                    (Super. Ct. No. F11900762)

DAMON JEROME THOMAS,                                                                 OPINION

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Edward
Sarkisian, Jr., Judge.
         Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.


                                                        -ooOoo-

*        Before Kane, Acting P.J., Poochigian, J., and Franson, J.
          A jury convicted appellant of resisting an executive officer (Pen. Code, § 69). In a
separate proceeding, the court found true two prior prison term enhancements (Pen.
Code, § 667.5, subd. (b)) and allegations that Thomas had a prior conviction within the
meaning of the three strikes law (Pen. Code, § 667, subds. (b)-(i)). Following
independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436, we
affirm.
                        FACTUAL AND PROCEDURAL HISTORY
          On February 8, 2011, while in custody, Thomas was escorted by Fresno County
Sheriff’s Deputy Julio Villarreal from a holding cell to a courtroom. During the court
proceedings, Thomas got agitated with his attorney over an issue in his case. After
Thomas cursed at the court, the court advised him the proceedings were over. Deputy
Villarreal then told Thomas it was time to leave and placed his hand on his elbow to
direct him to the door to the holding area. Thomas cursed at the deputy, raised his
elbows and began swinging them. Thomas also swung an elbow at Deputy Christian
Lightner that missed him. He then moved towards Lightner, pushing him against the wall
in the hallway to the holding area. After Villarreal and Lightner took Thomas to the
ground, Thomas kicked his legs and kept trying to lift his weight off the ground but he
was pushed back down by the deputies. During that time Deputy Villarreal kept telling
Thomas to stop fighting and to stop resisting. Thomas continued to struggle until another
deputy applied a taser to Thomas’s back. The whole incident with Thomas lasted from
five to eight minutes.
          On July 30, 2012, the district attorney filed a first amended information that
charged Thomas with resisting an executive officer (count 1), two prior prison term
enhancements, and having a prior conviction within the meaning of the three strikes law.
          On August 1, 2012, the jury convicted Thomas of resisting an executive officer.
In a separate proceeding the court found true the two prior prison term enhancements and

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the allegation that Thomas had a prior conviction within the meaning of the three strikes
law.
       On September 5, 2012, the court denied Thomas’s Romero1 motion and sentenced
him to an aggregate term of six years, a four-year term on the substantive offense, the
middle term doubled because of Thomas’s prior strike conviction, and two consecutive
one-year prior prison term enhancements. The court also imposed, without objection, a
restitution fine and a parole revocation fine of $1,440 each, and it sentenced Thomas to
time served on an unrelated misdemeanor case.
       Thomas’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) However, in a document filed on
March 12, 2013, Thomas contends: 1) the court improperly used his 1996 possession for
sale of cocaine base conviction and his 1992 juvenile adjudication for robbery to impose
two separate prior prison term enhancements; 2) his “first strike is also questionable”;
and 3) the court set his restitution fine too high and he cannot pay it. We reject these
contentions.
       Thomas’s two prior prison term enhancements were based on his September 26,
1996, conviction for possession for sale of cocaine base and his February 9, 2004,
conviction for possession of cocaine for which he served two separate prison terms.
Thus, there is no merit to Thomas’s contention that one of his prior prison term
enhancements was based on his juvenile adjudication for robbery.
       Further, “[i]mposition of a [prior prison term enhancement] requires proof that the
defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that
conviction; (3) completed that term of imprisonment; and (4) did not remain free for five

1      People v. Superior Court (Romero) (1996) 13 Cal.4th 497.


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years of both prison custody and the commission of a new offense resulting in a felony
conviction. [Citation.]” (People v. Tenner (1993) 6 Cal.4th 559, 563.)
       The record shows that Thomas was sentenced to a six-year prison term on his
1996 possession for sale of cocaine base conviction. On January 19, 2006, he was
discharged from parole in that case but he remained in prison custody serving a three-
year term imposed on his 2004 possession of cocaine conviction. On January 9, 2009,
Thomas was released from prison custody on parole in his possession of cocaine
conviction. On February 8, 2011, he committed the underlying offense. Thus, the court
properly imposed two separate, prior prison term enhancements based on Thomas’s 1996
and 2004 convictions because he served two separate prison terms on those convictions
and he did not remain free for five years of both prison custody or the commission of a
new felony offense between 1996 and 2011 when he committed the instant offense.
       Additionally, the court’s finding that Thomas had a prior conviction within the
meaning of the three strikes law was based on Thomas’s juvenile adjudication for
robbery. Since a juvenile adjudication for robbery qualifies as a prior conviction within
the meaning of the three strikes law (People v. Bowden (2002) 102 Cal.App.4th 387,
389), there is no merit to Thomas’s contention that his “first strike is also questionable.”
       Moreover, Thomas did on object to the imposition of a $1,440 restitution fine in
the trial court and thus forfeited his right to challenge this fine on appeal. (Cf. People v.
Gibson (1994) 27 Cal.App.4th 1466, 1469 [claim of inability to pay restitution fine
waived by failure to object below].)
       Further, following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.



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