THE PEOPLE, Plaintiff and Respondent, v. PAUL FRANCIS THOMAS, Defendant and Appellant.
D080668 (Super. Ct. No. CRN6769)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 11/30/23
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed.
Heather L. Beugen, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Erica A. Swenson, and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent.
Paul Francis Thomas appeals from an order of the trial court denying his request for resentencing pursuant to
I. PROCEDURAL AND FACTUAL BACKGROUND
A jury convicted Thomas and a co-defendant, George Albert Fredericks, of robbery and first-degree murder in September 1981. The jury also found that Thomas and Fredericks were each armed with a firearm in the commission of the crimes of robbery and murder. The trial court sentenced Thomas to 25 years to life in prison for the murder, plus one year for the firearm allegation. This court confirmed the conviction in an unpublished opinion. (People v. George Albert Fredericks and Paul Francis Thomas (Aug. 13, 1983, 4 Crim. No. 13574 [nonpub. opn.] (Thomas I).)
A. The Underlying Crime and Trial
The facts of the underlying crime were set forth in Thomas I,2 and repeated more recently in People v. Thomas (Dec. 8, 2020, D077117) [nonpub. opn.] (Thomas II). We summarize them here briefly. The victim, Roper, was
Fredericks and Thomas met at a bar at around 11:30 p.m. on Christmas Eve. They borrowed a friend‘s truck and drove to a restaurant. Fredericks called Roper‘s residence several times. He spoke to Roper‘s mother and left the number for the restaurant with her. Roper returned home around 1:00 a.m., called the restaurant and then left a few minutes later. Fredericks, Thomas, and Roper met at a convenience store. Fredericks and Thomas told Roper to get into their vehicle and drove him to a remote location, where Roper was ultimately shot and killed.
In a pretrial admission to a police officer, Thomas said that Fredericks shot Roper during a gun battle. Thomas stated, further, that he was worried that his fingerprints were on the casings to the bullets, since Fredericks used his gun, which Thomas had loaded, so he and Fredericks returned to the scene of the shooting and attempted to retrieve the casings. In a separate pretrial admission to Johnson, Fredericks said that he wanted to back out of the plan but Thomas insisted on going through with it, and that Thomas shot Roper after Roper fired a couple of shots.
Both men told a different story at trial. In his testimony, Thomas admitted going with Fredericks on the evening of December 24, 1980, and taking his gun. He said that Fredericks told him he was going to meet up with a guy that had roughed him up before and just wanted to be sure there was no trouble. They went to the restaurant and waited a long time but then
Fredericks testified that he left Thomas in the truck and walked across the street to meet Roper at the convenience store but was intercepted by a man with a gun. The man took Thomas‘s gun from Fredericks and instructed him to get into a van. There were two other men in the van and they threatened Fredericks and then instructed him to leave.
Johnson testified regarding his conversations with Thomas and Fredericks both before and after the murder. He testified that he discussed the plan with both Thomas and Fredericks sometime around December 22. They discussed the fact that Fredericks planned to meet with Roper on December 24, that Roper was supposed to bring an ounce of cocaine with him, and that Thomas would get the cocaine as “payment for his part in the killing.” In the days after the killing, Fredericks told Johnson that Roper did not have the cocaine on him when they met, that he initially wanted to back out of the plan, but that Thomas convinced him to go forward with the killing, and that he agreed to pay Thomas $2400 (instead of the cocaine) for his part in the killing. Johnson also said that he spoke with Thomas, who relayed a similar story. Thomas wanted to know what was happening with Fredericks and how Fredericks intended to pay him the $2400 he was owed. According to Johnson, Thomas said that “he felt he should get the $2400 [because] he was the one that actually did the killing.”
Another witness testified at trial that she was with Thomas the morning after the shooting. She said that Thomas threw his gun into a
B. Thomas‘s Request for Resentencing
In October 2019, Thomas filed a petition for resentencing pursuant to
After the remittitur issued, Thomas filed a second petition for resentencing pursuant to
C. The Evidentiary Hearing
Fredericks testified at the evidentiary hearing. He said that he met Roper on the evening of December 24, 1980, and that Thomas was with him. Fredericks owed Roper approximately $1,500 and Roper had gone to Fredericks’ house with another man to intimidate him a few weeks prior, so Fredericks wanted someone else with him on December 24 for protection. Roper was supposed to bring Fredericks some cocaine that he could sell to pay off his debt. They drove out to a remote location and Fredericks got out of the truck to talk with Roper. Fredericks took out a gun that he had
Fredericks said that Thomas only got out of the truck after he shot Roper and denied that the two had planned to rob or kill Roper. He admitted that he agreed to pay Thomas $100 for his assistance, and that he “probably” told Thomas that he owed Roper a drug debt. Fredericks admitted that he and Thomas made up the story they told at trial to “try to beat this thing.” He also stated that he had been paroled in 2013, after admitting that he was the perpetrator of the murder.
Thomas did not testify on his own behalf or present any other witnesses. The court acknowledged that the People had lodged the preliminary hearing transcript, the trial transcript, the clerk‘s record, and a transcript from a parole board hearing in March 2016, during which Thomas claimed that he was the actual shooter. In addition, Thomas submitted transcripts from a parole board hearing from October 2012 in which Fredericks admitted being the shooter. The trial court noted that it had reviewed the materials and, in particular, had reviewed and was relying on the original trial transcripts.
At the conclusion of the hearing, the People conceded that the evidence did not firmly establish whether Fredericks or Thomas was the actual shooter. However, the People argued, the evidence did establish beyond a reasonable doubt that Thomas was an active participant who acted with reckless indifference, such that he would still be guilty of murder under the current state of the law. In response, defense counsel relied heavily on Frederickson‘s testimony to assert that Thomas was an “unwilling accomplice,” and not a major participant.
Thomas filed a timely notice of appeal.
II. DISCUSSION
On appeal, Thomas asserts there is not substantial evidence in the record to support the trial court‘s factual findings or its conclusion that he was either a direct aider and abettor or major participant that acted with reckless indifference towards human life.
A. Relevant Legal Principles and Standard of Review
In 2018, the Legislature “made significant changes to the scope of murder liability for those who were neither the actual killers nor intended to kill anyone, including certain individuals formerly subject to punishment on a felony-murder theory.” (People v. Strong (2022) 13 Cal.5th 698, 707 (Strong).) “As relevant here, Senate Bill 1437 significantly limited the scope of the felony-murder rule to effectuate the Legislature‘s declared intent ‘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.‘” (Strong, at pp. 707-708.)
At the evidentiary hearing, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to
Where, as here, the trial court finds that the prosecution has met its burden to prove beyond a reasonable doubt that the defendant could have
B. Analysis
1. The Trial Court‘s Findings Are Supported by Substantial Evidence
In its written statement of decision, the trial court found: “The evidence received proves beyond a reasonable doubt that [Thomas] was a direct aider and abettor of the murder in this case. He participated in the planning of the murder in a pre-offense meeting with the co-defendant, he was present during the entire incident when the victim was shot, based on his own statements he either personally shot the victim or provided the weapon used to shoot the victim, he cleaned up evidence (casings) at the scene of the shooting, and he disposed of the weapon and ammunition immediately after the murder. In the days following the murder [Thomas] was still attempting to get paid for having killed the victim.” Upon our own review of the record, we conclude that the trial court‘s findings are supported by substantial evidence.
Thomas asserts that Fredericks testified that he was the only person who intended to shoot and did shoot Roper. But the prosecution never argued that Thomas was the shooter; rather, the prosecutor argued that Thomas was
The trial court also admitted the trial transcripts, in which Johnson said that he was with Thomas and Fredericks when the two of them discussed a plan to kill Roper. Specifically, Johnson testified that Fredericks “came over to the house to tell me that he had made arrangements with Mr. Thomas to meet Lon Roper and to kill him.” Fredericks and Johnson then went to Fredericks‘s house and continued this conversation with Thomas. They discussed the fact that “they had made arrangements to meet with Mr. Roper on the night of the 24th of December and that Mr. Roper was supposed to bring with him an ounce of cocaine which was supposed to be Mr. Thomas‘[s] payment for his part in the killing.”
Thomas asserts that Johnson‘s testimony was not credible, but as the trial court noted, as the trier of fact, it had to assess the credibility of the witnesses. (See People v. Pittman (2023) 96 Cal.App.5th 400, 414 [“the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility“].) It is apparent from the trial court‘s comments on the record and its written statement of decision that it found Johnson credible. The trial court expressly noted that the evidence showed that Thomas “participated in the planning of the murder in a pre-offense meeting with the co-defendant.” We are not permitted to undermine the trial court‘s credibility finding on appeal. (See People v. Zamudio (2008) 43 Cal.4th 327, 346, fn. 7 [“we must uphold the trial court‘s credibility findings, both express and or implied, if substantial evidence
Finally, Thomas also asserts that there was no evidence in the record to support the trial court‘s conclusion that Thomas continued to attempt to get paid for his involvement in the days following the murder. To the contrary, Johnson testified that he spoke with Thomas in the days after Christmas, that Thomas kept asking him how Fredericks was going to provide the $2400 that he believed Fredericks owed him for going through with the murder. Again, we defer to the trial court‘s credibility and factual findings, so long as there is credible evidence to support them. (Oliver, supra, 90 Cal.App.5th at p. 482.)
Thomas does not directly contest the sufficiency of the evidence supporting the remaining factual findings set forth in the trial court‘s statement of decision.
2. The Trial Court‘s Findings Support Its Conclusion That Thomas Was a Major Participant Who Acted With Reckless Indifference
Beyond disputing whether the evidence supports the trial court‘s factual findings, Thomas also asserts that the trial court did not adequately consider whether those findings were sufficient to support the conclusion that Thomas was a major participant that acted with reckless indifference, such that he would still be guilty of murder under current law. We disagree.
The California Supreme Court provided substantial guidance on the meanings of the phrases “major participant” and “with reckless indifference to human life” in two seminal cases, People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In Banks, the
Thomas asserts that the trial court did not expressly consider these factors in its oral or written ruling, but its stated factual findings directly address a number of the relevant factors set forth in Banks and Clark. We presume that the trial court knew and properly applied the law. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1032.) Moreover, the trial court did expressly find that Thomas was a direct aider and abettor. To be a direct aider and abettor, Thomas had to have the same mental state of the direct perpetrator, meaning that, if he was not the actual perpetrator, he at least knew of and shared the murderous intent of the actual perpetrator. (See
III. DISPOSITION
The trial court‘s order denying the petition for resentencing under
KELETY, J.
WE CONCUR:
BUCHANAN, Acting P. J.
CASTILLO, J.