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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


                                             2
                                     II. DISCUSSION
       Defendant contends that the trial court violated his federal and state due process
rights when it permitted the prosecution to amend the misdemeanor complaint to charge a
felony assault two days before the trial was set to begin. He argues that the prosecution’s
amendment was vindictive and in response to his rejection of a negotiated disposition.
       The presumption of vindictiveness arises when a prosecutor increases the charges
against a defendant in response to the defendant exercising a legal right: “The
constitutional protection against prosecutorial vindictiveness is based on the fundamental
notion that it ‘would be patently unconstitutional’ to ‘chill the assertion of constitutional
rights by penalizing those who choose to exercise them.’ ” (In re Bower (1985)
38 Cal.3d 865, 873.) In the pretrial setting, however, there is no presumption of
vindictiveness when a prosecutor decides to increase the charge. (People v. Jurado
(2006) 38 Cal.4th 72, 98.) “There is good reason to be cautious before adopting an
inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course
of preparing a case for trial, the prosecutor may uncover additional information that
suggests a basis for further prosecution or he simply may come to realize that information
possessed by the State has a broader significance. At this stage of the proceedings, the
prosecutor’s assessment of the proper extent of prosecution may not have crystallized. . . .
[¶] . . . [¶] A prosecutor should remain free before trial to exercise the broad discretion
entrusted to him to determine the extent of the societal interest in prosecution. An initial
decision should not freeze future conduct. . . . [T]he initial charges filed by a prosecutor
may not reflect the extent to which an individual is legitimately subject to prosecution.”
(United States v. Goodwin (1982) 457 U.S. 368, 381–382, fns. omitted.) Because
vindictiveness is not presumed, the defense must present evidence showing that the
“prosecutor’s charging decision was motivated by a desire to punish [the defendant] for
doing something the law plainly allowed him to do.” (Id. at p. 384.) California courts
have declined to presume vindictiveness when the defendant exercises the right to a jury
trial, and the prosecution amends the complaint to bring greater charges after a



                                              3
breakdown in plea negotiations. (See, e.g., People v. Matthews (1986) 183 Cal.App.3d
458, 466–467; People v. Hudson (1989) 210 Cal.App.3d 784, 788–789 (Hudson).)
       In considering a motion to dismiss for prosecutorial vindictiveness, courts must
also take into account section 1009, which allows a prosecutor to amend a complaint with
leave of the court, so long as the amendment does not “charge an offense not shown by
the evidence taken at the preliminary examination.” If leave is granted, the decision is
overturned only if it amounts to an abuse of the trial court’s considerable discretion.
(People v. Miralrio (2008) 167 Cal.App.4th 448, 458.) If pretrial vindictiveness claims
were entertained under these circumstances, “a defendant could assert that retaliation was
the motive for any amendment in the charges,” (People v. Johnson, (1991)
233 Cal.App.3d 425, 447), which would “significantly abridge prosecutorial charging
discretion in a fashion inconsistent with statutory authority.” (Hudson, supra,
210 Cal.App.3d at p. 788.)
       Hudson is instructive. There, the defendant was initially charged with two
misdemeanors, and entered a guilty plea. (Hudson, supra, 210 Cal.App.3d at pp. 785–
786, 788.) After the defendant withdrew the plea, the prosecution moved to amend the
complaint to file felony charges after a new prosecutor evaluated the case. (Id. at p. 789.)
The trial court dismissed the complaint due to prosecutorial vindictiveness, citing that the
prosecution “had failed to establish that the new information could not reasonably have
been discovered at the time the prosecution exercised its discretion to bring the original
charge.” (Id. at p. 786.) On appeal, the court reversed the trial court’s ruling that the
presumption of vindictiveness applied. The court cited California cases applying that
presumption only in a post-trial context, and noted that “the prosecution here had
expended no resources to try respondent already, and therefore had a lesser institutional
interest in discouraging respondent’s exercise of her right to a trial by jury.” (Id. at
pp. 788–789.)
       Defendant’s reliance on Twiggs v. Superior Court (Twiggs) (1984) 34 Cal.3d 360
is misplaced. Twiggs involved the prosecution’s amendment of an information after a
mistrial. (Id. at p. 368.) At a pretrial conference for the defendant’s second trial, the


                                              4
defendant rejected a plea deal. (Id. at p. 364.) Shortly thereafter, the prosecutor moved
to amend the complaint to allege that the defendant had been convicted of five prior
felony convictions, and had served a term in state prison for each offense, resulting in a
more severe punishment if convicted after the re-trial. (Ibid.) The trial court rejected the
defendant’s claims of prosecutorial vindictiveness and accepted the prosecutor’s
explanation that she had recently received confirmation regarding the prior convictions.
(Id. at pp. 364–365.) Our Supreme Court reversed, holding that the presumption of
vindictiveness applied because the record suggested that the prosecutor made no effort to
verify the prior convictions until the defendant refused a plea bargain and insisted on a
retrial. (Id. at p. 372.)
       Here, defendant contends that the presumption of vindictiveness is warranted
because the prosecution amended the misdemeanor complaint to allege felony assault just
two days before trial was set to begin. But as we have explained, the presumption of
vindictiveness does not apply at the pretrial phase. Moreover, the record supports the
trial court’s acceptance of the prosecutor’s explanation that the amendment was made in
response to his review of the file when he was assigned to the case. In particular, the
prosecutor, who had not been involved in the earlier plea negotiations, saw the
photographs of Widener’s injuries and noted their seriousness. After reviewing the
matter with his supervisor, the decision was made to file the case as a felony. The record
contains no evidence that the amendment was made to punish defendant or that it was
motivated by vindictiveness. (See People v. Michaels (2002) 28 Cal.4th 486, 514–515
[no evidence that prosecutor amended murder complaint to charge special circumstances
as a vindictive response to the defendant’s attempt to plead guilty].) In light of this
record, the trial court did not abuse its discretion in denying the defendant’s motion to
dismiss based on prosecutorial vindictiveness.
                                   III. DISPOSITION
       The judgment is affirmed.




                                              5
                                _________________________
                                Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Streeter, J.




                            6
