People v. Thomas CA1/4

Filed 5/13/15 P. v. Thomas CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A140735 v. GERALD CHARLES THOMAS, (Sonoma County Super. Ct. No. 628266) Defendant and Appellant.

Defendant Gerald Charles Thomas appeals from a judgment entered upon a jury verdict finding him guilty of assault by means likely to cause great bodily injury (Pen. Code,1 § 245, subd. (a)(4).) He contends that the trial court erred in denying his motion to dismiss the amended complaint on the ground of prosecutorial vindictiveness. He argues that the trial court violated his federal and state due process rights when it allowed the prosecution to amend the complaint to charge him with a felony assault after he rejected a proposed plea bargain. We shall affirm the judgment. I. FACTUAL BACKGROUND In 2010, defendant met Kenneth Widener through Susan Deschenes, a mutual acquaintance. Defendant frequented Widener’s neighborhood, and the two interacted on numerous social occasions. In February 2012, Widener came to Deschenes’s home to perform small home repairs for her. As Widener and Deschenes were seated at her kitchen table, defendant banged on the glass sliding door of Deschenes’s home.

1 All further statutory references are to the Penal Code.

1

Deschenes allowed defendant to come inside the house. Unprovoked, defendant began cursing and lunging at Widener. Deschenes’s roommate called the police, but Widener declined to press charges. After the incident, there were several hostile encounters over a period of four months between the two men, but none of these incidents escalated to physical violence and the police were never called. On June 27, 2012, Widener came home from work in the evening and stepped outside to water the plants on his front entryway. As he was in a crouched position, Widener suddenly felt someone jump on his back. He fell to the ground, and his face hit a decorative rock. Widener felt repeated blows to the back of his head. Dazed and still in midst of the attack, Widener managed to roll over onto his back and saw that it was defendant who was repeatedly punching him with a closed fist. Widener was unable to fight back. The attack lasted for several minutes. Widener’s girlfriend and other neighbors came outside after hearing the commotion and yelled for defendant to stop. Before defendant left the scene, he told Widener’s girlfriend that Widener and Deschenes were having a sexual relationship. A neighbor called the police. Widener suffered from a concussion, black eyes, swelling, flickering vision, and had bitten through his bottom lip. He declined to have his injuries treated until a few weeks after the incident. He sought medical treatment because he was experiencing the effects of a concussion, including persistent dizziness and flickering vision. On December 24, 2012, defendant was charged with misdemeanor battery (§ 242.) Defendant rejected a negotiated disposition, and a jury trial was set for July 12, 2013. On July 10, 2013, the People amended the complaint, charging defendant with felony assault by means of force likely to produce great bodily injury. On September 23, 2013, defendant moved to dismiss the amended complaint on the ground of vindictive prosecution. On October 24, 2013, the court denied the motion reasoning that the prosecutor handling the case had not been involved in the prior plea negotiations, and that the complaint was amended in response to the prosecutor’s evaluation of additional evidence.