People v. Thomas CA3

Filed 10/28/14 P. v. Thomas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C074981

Plaintiff and Respondent, (Super. Ct. Nos. 13F02681, 10F03644, 11F01542) v.

JOHN CURTIS THOMAS,

Defendant and Appellant.

In case No. 13F02681 (battery case), a jury found defendant John Curtis Thomas guilty of assault with a deadly weapon (baseball bat), battery resulting in serious bodily injury, and possession of cocaine base for sale. The jury found that defendant personally used a deadly weapon and personally inflicted serious bodily injury in the commission of the battery. The trial court found that defendant had a prior drug trafficking conviction. Defendant was sentenced to prison for eight years four months. Defendant was awarded 169 days’ custody credits and 169 days’ conduct credits and was ordered to pay a $1,800 restitution fine, a $1,800 restitution fine suspended unless parole is revoked, a $120 court operations fee, a $90 court facilities assessment, a $331.98 booking fee, and a $60.18 classification fee.

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In cases Nos. 11F01542 (2011 case) and 10F03644 (2010 case), the trial court revoked defendant’s probation based on the battery case, imposed concurrent prison terms of two years, ordered execution of $200 probation revocation restitution fines, and imposed $200 restitution fines stayed unless parole is revoked. The court confirmed a victim restitution order in the 2010 case. FACTS On the afternoon of April 26, 2013, Rebecca Spuehler heard yelling and cursing in the parking lot of the mall where she is employed. Spuehler went outside and saw three men yelling at a man she knew as Mike. Spuehler identified one of the three men as defendant. Spuehler observed defendant raising a bat over his shoulder. Spuehler ran toward the three men and yelled for defendant to stop. Spuehler saw the bat strike Mike on the head and then saw Mike “just f[a]ll down, boop. Just fell down on the ground backwards.” Spuehler also observed Mike “laying there unconscious” for at least a minute. Defendant fled behind a building, and Spuehler stayed with Mike. Spuehler and her daughter-in-law called the fire and police departments. Michael McKeegan testified that he and defendant were friends and that defendant had sold him drugs 10 to 20 times during the preceding year. On the day of the incident, McKeegan had been released from a drug rehabilitation program. McKeegan immediately relapsed by consuming beer and a beverage similar to wine. McKeegan believed he had become “extremely intoxicated” or “[d]runk.” In fact, he had been “more drunk that day” than he had “ever been in [his] life.” McKeegan previously had experienced two or three prior alcohol-induced “blackouts” and believed that, on the date of the incident, he again blacked out. McKeegan did not recall seeing defendant that day, did not recall defendant possessing a bat, and did not recall seeing a bat. When responding officers contacted McKeegan he was conscious, smelled like alcohol, and appeared to be moderately intoxicated. He had no visible injuries.