People v. Thomas CA5

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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