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The People v. Dwayne Orlando Thomas

December 19, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DWAYNE ORLANDO THOMAS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F07767)

The opinion of the court was delivered by: Robie , Acting P. J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Dwayne Thomas appeals his convictions of first degree residential burglary and possession of stolen property. He contends there is not sufficient evidence to uphold his burglary conviction and the trial court erred in failing to grant his mistrial and Wheeler/Batson*fn1 motions. Finding these contentions to be without merit, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During the afternoon of November 26, 2010, Marcus Tucker left his house to go to the mall. As he was leaving, he saw several African-American young people walking in the direction of his house.

Upon his return, Tucker discovered his house had been ransacked. Many items had been taken from the house, including an Xbox console. Tucker called the police to report the incident.

During the police investigation, several footprints were found on either side of Tucker's fence. A photograph of one of the footprints was taken.

Citrus Heights Police Officer William Dunning then spoke with Tucker's neighbor Sergey Perepelitsin. Perepelitsin told the officer he had seen two African-Americans running through his backyard, coming from the direction of Tucker's yard. At one point, one of the two stopped and gestured toward Tucker's house, and two more African-Americans ran through his yard. Perepelitsin referred Officer Dunning to a nearby apartment complex where he suspected the intruders might have gone.

Officer Deborah Bayer responded to the apartment complex and detained Dorain Craig, who had left apartment No. 10 with an Xbox console in his hand. While Officer Bayer was detaining Craig, Officer David Smith noticed three males peeking out the door of apartment No. 10. When they realized Officer Smith saw them, they shut the door. Officer Smith knocked on the door. Although he heard people moving inside, nobody answered. Officer Smith continued to knock. Five minutes after the initial knocking, Stephanie Elliot answered. As he spoke with Elliot, Officer Smith recognized defendant, Benjamin Bailey, and Brian Bailey inside the apartment from prior contacts. After getting Elliot's consent to search the apartment, officers found items that Tucker had described as missing from his house. Craig, the Baileys, Anthony Daniels, and defendant were arrested.

Tucker was then called to the apartment to see if he could identify any of the items as his. He identified many of the items that had been stolen.

Several hours later, Detective Chad Rothwell interviewed Daniels. Initially, Daniels lied to Detective Rothwell and said he had awakened that day and had gone straight to Elliot's apartment. However, he later changed his story and told Detective Rothwell that he, the Baileys, and defendant had seen Tucker leave his house and "they" went to the house. Daniels said three of the subjects then went to the backyard, while he stayed out front as a lookout. Although Daniels would not confirm he was with defendant, he implied that he was with the people who were arrested. Daniels eventually admitted he had entered Tucker's house through the back window with the rest and he was the first one to leave and go to Elliot's apartment.*fn2

Detective Rothwell also interviewed Craig. Craig told the detective that he had gone to Elliot's apartment after receiving a call from defendant. Craig did not recall what was said on the phone, but he did recall that he knew an Xbox would be available for purchase at the apartment. He said he purchased the Xbox from someone with twisted dreads. Brian Bailey and Daniels both had twisted dreads.

Brian and Benjamin Bailey were placed in the same cell on the night they were arrested. Benjamin told Brian that he and defendant "would be sentenced to whatever they could get," and that they should say "something to the effect about [defendant] running into us."*fn3

Defendant told Detective Rothwell that he had not been involved in the burglary, and that he had arrived at Elliot's apartment after the other four suspects had arrived.

When they were arrested, both Daniels and defendant were wearing Vans shoes. The footprint discovered in Perepelitsin's yard bore similar markings to both Daniels's and defendant's shoes.*fn4

Before trial, the court granted defendant's motion in limine and ordered that the prosecutor not elicit any reference to the fact that Officer Smith had had prior contact with defendant. However, after Officer Smith testified that he recognized three of the suspects, the prosecutor asked, "Without stating how you recognized those individuals, who did you recognize?" Defense counsel moved for a mistrial on the grounds that the prosecutor's question violated the court's order and prejudiced the jury. The court denied defendant's motion, stating, "I don't think the testimony was directly in violation of the order on that. I understand your point and why you're making the motion. [¶] I think it does not rise to the level of prejudice that would require a mistrial." Defendant denied the court's offer to give the jury a curative admonition.

During jury voir dire, defense counsel made a Wheeler/Batson motion, stating the prosecutor had peremptorily "challenged what appears to be the only African[-]American person on the entire venire, and it would appear to me that the basis for her challenging is nothing more than he was, in fact, an African[-]American person."

The court found a prima facie case and asked the prosecutor to express her reasons for making the challenge. The prosecutor responded, saying, "The mode in which the juror presented himself first drew my attention to him. He projected himself as a young urban youth; specifically . . . this person has cornrows in his hair and the fact he is dressed in an all-black leather jacket and black hoodie and black jacket. He had dark blue or dark black saggy pants with Nikes, all manners in ...


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