People v. Thomas CA2/4

Filed 8/19/14 P. v. Thomas CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B251905

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA098161) v.

MICHAEL DESHAWN THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mike Camacho, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and David Zarmi, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION Michael Deshawn Thomas appeals from a judgment and sentence, following his convictions for forcible rape of two child victims, committing lewd acts on the victims and for dissuading the victims from testifying. He contends that the trial court improperly allowed evidence that appellant was a gang member and improperly denied his motion for a mistrial on that basis. For the reasons stated below, we affirm. PROCEDURAL HISTORY In an amended information, appellant was charged with forcible rape of two 1 child victims (Pen. Code, § 261, subd. (a)(2); counts 1 & 2), forcible lewd act on a child under 14 years of age (§ 288, subd. (b)(1); count 3), forcible lewd act on a child 14 years of age by a person 10 years older (§ 288, subd. (c)(1); counts 4 & 5), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1); counts 6 & 7). As to counts 1 through 3, it was further alleged that there were multiple victims (§ 667.61, subds. (b) & (e)). Appellant pled not guilty and denied the special allegations. Following a jury trial, appellant was found guilty as charged in counts 1 and 3 through 7. The jury found the multiple victims allegations to be true as to counts 1 and 3. The jury found appellant not guilty of the charged crime in count 2, but instead guilty of the lesser included offense of battery (§ 242). Appellant was sentenced to 36 years 4 months to life in state prison: 15 years to life for each of counts 1 and 3, pursuant to section 667.61; one third the midterm of two years, or eight months, for each of counts 4 and 5; the upper term of four years for count 6; and one third the midterm of three years, or one year, for count 7. He was also sentenced to a concurrent term of six months for count 2. 1 All further statutory citations are to the Penal Code, unless otherwise stated.