THE PEOPLE v. TOMMY LEWIS WARD (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONSTATEMENT OF THE CASE

In March 2000 the parties stipulated that appellant, Tommy Lewis Ward, was insane when he committed three counts of attempted murder (Pen.Code, §§ 187, subd. (a) & 664 ¹ ) and entered verdicts consistent with that stipulation.   Appellant had been found guilty of being a felon in possession of a firearm (§ 12021, subd. (a)(1)), the appellant's third strike.   The trial court sentenced appellant to the state mental hospital for up to 125 years to life, and to a prison term of 25 years to life.   Appellant's direct appeal to this court challenging his three strikes sentence was affirmed on October 29, 2002.   Appellant's petition for review by the California Supreme Court was rejected in January 2003.

In February 2005 and April 2005 the superior court and this court respectively denied appellant's petitions for a writ of habeas corpus.   The Supreme Court denied appellant's petition for habeas corpus in April 2006.

On November 3, 2009, appellant filed a motion to vacate his sentence pursuant to section 1473.6.²  Appellant argued in his motion that his “use of a firearm (P.C. 12022(a)) [sic] may have been an element of proof” in regard to the attempted murder charges but “the use of a firearm would not ipso facto prove a seperate [sic] criminal intent for purpose of the prosecution seeking a seperate [sic] sentence under Ex-Felon-in-possession-of-a-firearm statutes.”   Appellant argued he was incapable of committing the section 12021 offense because he suffered from a mental disability caused by paranoid schizophrenia.   Appellant asserted that the use of his prior serious felony convictions was unconstitutional.   Appellant further challenged his sentence under the three strikes law.

Appellant attached exhibits setting forth his mental health diagnosis by the California Department of Mental Health;  partial copies of transcripts from proceedings and his sentencing hearing in 2000;  court documents including the abstract of judgment, an addendum order committing him to a state hospital, and declarations executed on October 5 and 9, 2009, by appellant's brothers, William and Jack Ward, respectively;  and a clinical description of appellant's diagnosis for paranoid schizophrenia.   Jack Ward declared that he was aware appellant had mental health problems in the early 1970's and was sent to a state mental hospital for several months.   Thereafter, appellant began to receive monthly Social Security checks because of his mental illness.   Appellant continued to receive this assistance until his most recent commitment to the state hospital.

William Ward declared appellant suffered from paranoid schizophrenia and began spending time in state mental hospitals in 1973 or 1974.   Appellant began receiving Social Security checks after his release from a state hospital.   Appellant took psychiatric medications for several years, and, before his serious problems in 1999 and 2000, appellant may have stopped taking his medications.   Appellant's family were hunters and appellant grew up around guns.

On November 30, 2009, the trial court filed a written order denying appellant's motion pursuant to section 1473.6.   After reviewing the procedural history of the instant action, the court found appellant's motion is time barred by section 1473.6, subdivision (d)(1), and that it fails to state a prima facie case for the relief sought.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (People v. Wende (1979) 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on April 26, 2010, we invited appellant to submit additional briefing.

Appellant replied with a four-page document stating that he was in custody pursuant to section 1026, not imprisoned as the result of a prison sentence.   Appellant challenges the legal validity of his sentence, alleged misrepresentations made by the trial court, a comment by the trial court comparing people with mental illnesses to drunk drivers, the “fraudulent use of the 3-strike law statutes,” the mitigating effect of appellant's mental illness, and the error by the trial court in failing to grant relief pursuant to section 1473.6 because appellant made a prima facie showing for relief.

The trial court's finding that appellant's request for relief is untimely is supported by the record.   The disposition of appellant's case was complete after the California Supreme Court denied his petition for review in January 2003.   Section 1473.6 became operative on January 1, 2003.   Under subdivision (d)(2) of section 1473.6, appellant had one year to file his motion.   Under subdivision (d)(1) of section 1473.6, appellant had one year from discovery of government misconduct to file a motion.   The only misconduct of which appellant complains pertains to the trial court's application of the three strikes law and its imposition of sentence on the section 12022, subdivision (a)(1).   Appellant further complains of the effect of his mental illness on the legality of the proceedings.

Appellant's contentions are not of government misconduct.   The alleged errors appellant raises are related to legal proceedings conducted by a trial court.   Even if errors occurred in earlier trial court proceedings, they are legal errors by a court with jurisdiction over appellant, not acts of government misconduct.   All of the issues raised by appellant in his section 1473.6 motion were known at the time of the original legal proceedings.   Appellant failed to demonstrate recent discovery of any act of government misconduct.   Appellant's claim, therefore, is time barred.   The claim further fails to state a prima facie case for the relief sought and was properly rejected on the merits.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The order denying appellant's motion is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise designated, all statutory references are to the Penal Code..  FN1. Unless otherwise designated, all statutory references are to the Penal Code.

FN2. Section 1473.6 provides:“(a) Any person no longer unlawfully imprisoned or restrained may prosecute a motion to vacate a judgment for any of the following reasons:“(1) Newly discovered evidence of fraud by a government official that completely undermines the prosecution's case, is conclusive, and points unerringly to his or her innocence.“(2) Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.“(3) Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment.   Evidence of misconduct in other cases is not sufficient to warrant relief under this paragraph.“(b) For purposes of this section, ‘newly discovered evidence’ is evidence that could not have been discovered with reasonable diligence prior to judgment.“(c) The procedure for bringing and adjudicating a motion under this section, including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.“(d) A motion pursuant to this section must be filed within one year of the later of the following:“(1) The date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the misconduct or fraud by a government official beyond the moving party's personal knowledge.“(2) The effective date of this section.”.  FN2. Section 1473.6 provides:“(a) Any person no longer unlawfully imprisoned or restrained may prosecute a motion to vacate a judgment for any of the following reasons:“(1) Newly discovered evidence of fraud by a government official that completely undermines the prosecution's case, is conclusive, and points unerringly to his or her innocence.“(2) Newly discovered evidence that a government official testified falsely at the trial that resulted in the conviction and that the testimony of the government official was substantially probative on the issue of guilt or punishment.“(3) Newly discovered evidence of misconduct by a government official committed in the underlying case that resulted in fabrication of evidence that was substantially material and probative on the issue of guilt or punishment.   Evidence of misconduct in other cases is not sufficient to warrant relief under this paragraph.“(b) For purposes of this section, ‘newly discovered evidence’ is evidence that could not have been discovered with reasonable diligence prior to judgment.“(c) The procedure for bringing and adjudicating a motion under this section, including the burden of producing evidence and the burden of proof, shall be the same as for prosecuting a writ of habeas corpus.“(d) A motion pursuant to this section must be filed within one year of the later of the following:“(1) The date the moving party discovered, or could have discovered with the exercise of due diligence, additional evidence of the misconduct or fraud by a government official beyond the moving party's personal knowledge.“(2) The effective date of this section.”

THE COURT * FN*.  Before Dawson, Acting P.J., Hill, J., and Kane, J.