Filed 6/24/14 P. v. Thomas CA2/6

                       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX


THE PEOPLE,                                                                  2d Crim. No. B249937
                                                                            (Super. Ct. No. 1422488)
     Plaintiff and Respondent,                                               (Santa Barbara County)

v.

MICHAEL FRANCIS THOMAS,

     Defendant and Appellant.


         Michael Francis Thomas appeals from the judgment entered after a jury convicted
him of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and threatening to
use force or violence upon the victim of a crime. (Id., § 140, subd. (a).) Appellant
represented himself during the trial. He was sentenced to prison for three years.
         Appellant contends that the trial court (1) erroneously admitted evidence of prior
uncharged offenses to show motive or common plan, (2) erroneously excluded evidence
of specific instances of the victim's dishonesty, and (3) engaged in judicial misconduct.
We affirm.
                                             Facts
                                       People's Evidence
          Jahawn Nazari and appellant resided on property owned by Lillian Stewart.
Appellant managed the property and was living in the house. Nazari was living in a shed
and paid appellant rent of $200 per month.
          On August 14, 2012, Nazari and appellant argued about a computer. After the
argument, Nazari went inside the shed. Half an hour later, appellant kicked open the door
to the shed. He had a shovel in his hand that he swung at Nazari, who was "in fear for
[his] life." Appellant "just kept swinging and swinging." "[H]is face was pure red."
          Nazari tried to use his laptop computer as a shield to protect himself. Appellant
hit the laptop with the shovel and "smashed" it. He hit Nazari's body six or seven times.
Appellant said, " 'Who's Mr. Tough Guy now?' "
          Appellant stopped swinging the shovel and showed Nazari a 30-day eviction
notice. Appellant said, " 'I was planning on kicking you out, but I'm not going to do it.' "
Nazari stated that he "was going to call the cops." Appellant replied: " 'Oh, you want to
be a cop caller. You need to get off this property. If you don't leave, I'm going to smash
your car windows out.' "
          Appellant walked out of the shed and telephoned the police. Sergeant Lorenzo
Duarte arrived at the property in response to the telephone call. He saw bruising on
Nazari's right shin and left shoulder. After appellant was arrested, he said to Nazari, "
'Just wait until I get out, fuck-head. You think it was bad this time, just wait till I get
out.' "
                                     Appellant's Evidence
          Appellant testified as follows: He was "very angry" at Nazari and "started running
toward him." Nazari ran into the shed. Appellant went to the doorway of the shed and
yelled at Nazari, who "was cowering in the corner" while holding his laptop over his
head. Appellant did not threaten him or swing a shovel at him. "There wasn't even a
shovel around."


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       Appellant admitted yelling at Nazari: " 'Just wait until I get out, fuck-head. You
think it was bad this time, just wait until I get out.' " By this statement, appellant meant
that when he got out of jail, Nazari "was going to be evicted. He was going to get a 30-
day notice."
       Robert Brinton, appellant's friend, testified that a person could not swing a shovel
inside the shed without hitting shelving, rafters, or exposed wiring.
                    Uncharged Offenses Committed Against Zamorano
       Emilio Zamorano was living with Stewart on her property. On February 19, 2011,
Zamorano and appellant "had a confrontation . . . because [Zamorano] had parked his
[truck] to the rear of the parking lot next to the garage [on Stewart's property] where
[appellant] was staying." Appellant ordered Zamorano to leave the premises. When
Zamorano did not leave, appellant said that "if he didn't leave [appellant] was going to
break the windows of his truck." Appellant used a crowbar to smash one of the truck's
windows. In an expression of "frustration with Mr. Zamorano's presence on the
property," appellant cut an electrical communication cable that Zamorano had been using.
       Later that same day, appellant said to Zamorano, " 'You better get out of here and
get all your trash out of here too.' " Appellant punched Zamorano's truck. Zamorano
drove away, and appellant chased the truck while holding a large stick. He "hit the back
of the truck with [the stick] as it was going out of the driveway." Appellant repeatedly
said, " 'I am the landlord and the king of this property.' "
                       Uncharged Offense Committed Against Chauff
       In May 2011 Gerald McCullough was living in a house on Stewart's property.
Charles Chauff came to the property to visit McCullough. McCullough had warned
Chauff not to visit him because appellant had threatened that "if [Chauff] comes over
here I am just going to kick his ass."
       Appellant and Chauff got into an argument. Appellant chased Chauff while
holding a stick that was attached to a three-pronged "garden tool." Appellant said to
Chauff, " 'You better get out of here or I'll kill you.' " Chauff put his "arm up in defense
and the stick broke right over his arm." Appellant hit Chauff at least six or seven times

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with the broken stick. Chauff sought treatment at a hospital. The parties stipulated that
"Chauff's arm was bruised but not broken." The court took judicial notice of appellant's
misdemeanor conviction for assaulting Chauff with a deadly weapon.
                  Admissibility of Zamorano and Chauff Uncharged Offenses
         The People sought to admit the Zamorano and Chauff uncharged offenses to show
motive, intent, and common plan. The court instructed the jury that it could consider
these uncharged offenses for the limited purpose of determining whether appellant had a
motive or plan to commit assault with a deadly weapon. Appellant maintains that the
uncharged offenses were erroneously admitted.
         "As a general rule, evidence of uncharged crimes is inadmissible to prove the
defendant had the propensity or disposition to commit the charged crime. ([Evid. Code,]

§ 1101, subd. (a);[ 1] [citations].) . . . [¶] Evidence of other crimes is admissible,
however, when relevant for a non-character purpose—that is, when it is relevant to prove
some fact other than the defendant's criminal disposition, such as 'motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake of fact or accident.'
(§ 1101, subd. (b); [citations].)" (People v. Hendrix (2013) 214 Cal.App.4th 216, 238.)
         The standard of review is abuse of discretion. (People v. Foster (2010) 50 Cal.4th
1301, 1328.) " 'Under the abuse of discretion standard, "a trial court's ruling will not be
disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage
of justice." [Citation.]' [Citation.]" (Id., at pp. 1328-1329.)
         " 'Evidence of uncharged crimes is admissible to prove . . . common design or
plan, . . . only if the charged and uncharged crimes are sufficiently similar to support a
rational inference of . . . common design or plan . . . . [Citation.]' [Citation.]" (People v.
Foster, supra, 50 Cal.4th at p. 1328.) "[E]vidence of uncharged misconduct must
demonstrate 'not merely a similarity in the results, but such a concurrence of common
features that the various acts are naturally to be explained as caused by a general plan of


1
    Unless otherwise stated, all further statutory references are to the Evidence Code.
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which they are individual manifestations.' [Citation.]" (Ibid.) " '[A] common scheme or
plan focuses on the manner in which the prior misconduct and the current crimes were
committed, i.e., whether the defendant committed similar distinctive acts of misconduct
against similar victims under similar circumstances.' [Citation.]" (People v.
Walker (2006) 139 Cal.App.4th 782, 803.)
         "Other crimes evidence is admissible to establish two different types or categories
of motive evidence. In the first category, 'the uncharged act supplies the motive for the
charged crime; the uncharged act is cause, the charged crime is effect.' [Citation.] 'In the
second category, the uncharged act evidences the existence of a motive, but the act does
not supply the motive. . . . [T]he motive is the cause, and both the charged and uncharged
acts are effects. Both crimes are explainable as a result of the same motive.' [Citation.]"
(People v. Spector (2011) 194 Cal.App.4th 1335, 1381.)
         We need not determine whether the uncharged offenses were admissible to show
motive. The trial court did not abuse its discretion in ruling that they were admissible to
show a common plan. Evidence of the charged and uncharged offenses demonstrates
" ' "not merely a similarity in the results, but such a concurrence of common features that
the various acts are naturally to be explained as caused by a general plan of which they
are individual manifestations." ' [Citation.]" (People v. Foster, supra, 50 Cal.4th at p.
1328.)
         Appellant " 'committed similar distinctive acts of misconduct against similar
victims under similar circumstances.' [Citation.]" (People v. Walker, supra, 139
Cal.App.4th at p. 803.) All of the incidents occurred on Stewart's property. Appellant
wanted the victims to leave the property. After arguing with them, appellant made
similar threats and engaged in similar acts of violence. He told Zamorano that "if he
didn't leave [appellant] was going to break the windows of his truck." Appellant used a
crowbar to smash one of the truck's windows. He later chased the truck with a large stick
and "hit the back of the truck with [the stick] as it was going out of the driveway."
Appellant threatened Chauff by saying, " 'You better get out of here or I'll kill you.' " He
assaulted Chauff with a stick that was attached to a three-pronged "garden tool."

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Appellant went to Nazari's shed with an eviction notice and assaulted him with a shovel.
When Nazari said he was going to call the police, appellant threatened, " 'If you don't
leave, I'm going to smash your car windows out.' " Thus, the charged and uncharged
offenses manifest a common plan to threaten and commit acts of violence against persons
whom appellant wanted removed from Stewart's property.
       If evidence of prior uncharged offenses is admissible, "the trial court then must
consider whether the probative value of the evidence 'is "substantially outweighed by the
probability that its admission [would] . . . create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury." (Evid.Code, § 352.)' [Citation.]"
(People v. Foster, supra, 50 Cal.4th at p. 1328.) "The prejudice which exclusion of
evidence under Evidence Code section 352 is designed to avoid is not the prejudice or
damage to a defense that naturally flows from relevant, highly probative evidence. . . .
'The "prejudice" referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638.)
Rulings made under section 352 are reviewed for an abuse of discretion. (People v.
Foster, supra, 50 Cal.4th at p. 1328.)
       The trial court did not abuse its discretion. The uncharged offenses were highly
probative evidence. "There was not a substantial danger of undue prejudice because the
circumstances of the [prior] incident[s] were no more inflammatory than the
circumstances of the current incident involving [Nazari]. [Citation.]" (People v.
Callahan (1999) 74 Cal.App.4th 356, 371.) The uncharged offenses were not remote in
time: they occurred within 18 months of the charged offense. "[T]he prejudicial effect of
[the uncharged offense against Chauff] is [lessened] by the circumstance that [appellant's]
uncharged act[] [resulted] in [a] criminal conviction[]. This circumstance [decreased] the
danger that the jury might have been inclined to punish [appellant] for the uncharged
offense[] . . . ." (People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Furthermore, "the trial
court's instructions to the jury under [CALCRIM No. 375] regarding evidence admitted
for a limited purpose, and . . . advising it to consider such evidence not to prove

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[appellant's bad character or] predisposition to commit crimes but rather to determine
whether [appellant had a motive or plan to commit assault with a deadly weapon],
eliminated any danger 'of confusing the issues, or of misleading the jury.' (Evid.Code, §
352.) We presume the jury followed these instructions. [Citation.]" (People v. Lindberg
(2008) 45 Cal.4th 1, 25-26.)
             Exclusion of Evidence of Specific Instances of Nazari's Dishonesty
       A witness's credibility may be attacked by specific instances of dishonesty. (In re
Freeman (2006) 38 Cal.4th 630, 640, fn. 5.) Appellant contends that the trial court
erroneously excluded Robert Brinton's proposed testimony that Nazari had lied on prior
occasions.
       Brinton's proposed testimony was set forth at a section 402 hearing out of the
jury's presence. At the hearing Brinton testified as follows: For about four years, Brinton
and Nazari worked for the same telemarketing company, Frontier. "Several times" they
worked "side by side." During telephone conversations with customers, Nazari told them
that if the program he was selling "does not work for you, then it[']s a hundred percent
guaranteed [that] you will get all your money back." This was "not the truth." The
prosecutor asked Brinton, "Was there any type of refund period where customers could
get their money back?" Brinton responded, "Well, with FTC, I believe it's 24 hours."
The prosecutor continued, "So it was true that they could get their money back?" Brinton
replied, "If they pressed the right buttons, anyone could get their money back."
       The trial court ruled that Brinton's proposed testimony was inadmissible for
"insufficient foundation on the issue . . . regarding honesty, veracity." It also ruled that,
pursuant to section 352, "the probative value of the testimony on this issue is
substantially outweighed by the probability that admission would create a substantial
danger of undue prejudice and confuse the issues." We review the trial court's rulings for
abuse of discretion. (People v. Foster, supra, 50 Cal.4th at p. 1328; People v.
Ledesma (2006) 39 Cal.4th 641, 705.)
       The trial court did not abuse its discretion. The court could have reasonably
determined that Brinton's proposed testimony had little, if any, probative value and would

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confuse the issues because he did not know Frontier's refund policy. When the
prosecutor asked Brinton about its refund policy, he did not say what that policy was.
Instead, he said what he "believed" to be the FTC's (Federal Trade Commission's) policy.
No evidence was presented as to the FTC's actual policy. Furthermore, Brinton
acknowledged that "[i]f they pressed the right buttons, anyone could get their money
back." Accordingly, Brinton's proposed testimony was insufficient to show that Nazari
had lied when he told customers that they could get their money back. We reject
appellant's contention that the exclusion of Brinton's testimony violated his Fifth
Amendment right to a fair trial and his Sixth Amendment right to present a defense.
                                    Judicial Misconduct
       During his cross-examination of Nazari, appellant stated to the court, "Your honor,
I would request that you admonish Mr. Nazari to answer these questions truthfully and
fully to his best ability." The court replied: "All right. Mr. Thomas, I have no reason to
believe that isn't occurring. So ask your next question, please." Appellant did not object
to the court's reply. He argues that the reply "amounted to an improper instruction to the
jury regarding how Nazari's credibility should be assessed." "By stating that it had 'no
reason to believe' that Nazari wasn't being truthful, the court was . . . giving an implied
endorsement as to the truthfulness [of his testimony]."
       The court's reply was not a jury instruction. It was an expression of the judge's
personal opinion that was directed at appellant, not the jury. Appellant is in effect
claiming that the reply constituted judicial misconduct. "As a general rule, judicial
misconduct claims are not preserved for appellate review if no objections were made on
those grounds at trial. [Citations.] However, a defendant's failure to object does not
preclude review 'when an objection and an admonition could not cure the prejudice
caused by' such misconduct, or when objecting would be futile. [Citations.]" (People v.
Sturm (2006) 37 Cal.4th 1218, 1237.) Here, there is no reason to believe that an
objection and request for an admonition would have been futile or would not have cured
any resulting prejudice. Consequently, appellant forfeited the judicial misconduct issue.


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      In any event, the judge's brief reply was innocuous and did not constitute
misconduct. It was a reasonable response to appellant's inappropriate implied assertion
that Nazeri was lying.
                                       Disposition
      The judgment is affirmed.
             NOT TO BE PUBLISHED.


                                                       YEGAN, J.

      We concur:



             GILBERT, P.J.


             PERREN, J.




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                                  Jean Dandona, Judge

                         Superior Court County of Santa Barbara

                          ______________________________


             John Derrick, 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, Senior Assistant Attorney General, Paul M.
Roadarmel, Jr. , Supervising Deputy Attorney General, Connie H. Kan, Deputy Attorney
General, for Plaintiff and Respondent.




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