People v. Thomas CA6

Filed 5/5/15 P. v. Thomas CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039990 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1102315)

v.

MARK RENEE THOMAS,

Defendant and Appellant.

Defendant Mark Renee Thomas appeals from a judgment of conviction entered after a jury found him guilty of five counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c).) The jury also found that defendant personally used a handgun during the commission of each robbery. (Pen. Code, § 12022.53, subd. (b).) In a bifurcated trial, the court found true the allegations that defendant had three prior strike convictions (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), one prior serious felony conviction (Pen. Code, § 667, subd. (a)), and one prior prison term (Pen. Code, § 667.5, subd. (b)). The trial court sentenced defendant to an indeterminate term of 125 years to life, which was consecutive to a determinate term of 75 years. On appeal, defendant contends that his trial counsel rendered ineffective assistance by failing to file an in limine motion to

exclude the testimony of a wireless phone expert on Kelly1 grounds and by failing to call his own expert witness. We conclude that defendant was not deprived of the effective assistance of counsel and affirm the judgment.2

I. Statement of Facts A. Prosecution Case At about 9:00 p.m. on March 23, 2009, Nelson Martinez, Omar Nava Carrillo, Raul Martinez, Marisela Maria Mercado Vargas, and Maria Del Pilar Garduno were working at a Burger King restaurant in San Jose when two armed men entered. One of them pushed Carrillo towards the office and demanded money from the safe. Carrillo gave him $7,930. According to Carrillo, this robber was wearing black pants, a blue sweatshirt, and gloves. Though Carrillo could not see the robbers’ faces, he described their skin as “dark.” Neither robber was wearing a hat. The other robber grabbed Raul’s3 back, led him to the cash register, and told him to open it. According to Raul, the robber’s face was covered, and he was wearing gloves and a black jacket. When Raul was unable to open the cash register, the robber demanded Raul’s wallet. Raul gave him his wallet, which contained $400. The robber then told Raul to go to the back of the restaurant. Garduno saw the armed robber behind Raul, but could not see his face. The robber ordered Garduno, Nelson, and Vargas to go to the back of the restaurant. According to Nelson, the robbers were wearing long, black rain coats and dark blue or black pants. He could not tell what race they were, but they