Filed 6/24/21 P. v. Thomas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B305293
Plaintiff and Respondent, Los Angeles County
Super. Ct. No.
v. MA075592-01
CAMREN DEJHAUNAE THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shannon Knight, Judge. Affirmed.
Julie Caleca, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael Keller and Douglas L.
Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Camren Dejhaunae Thomas of committing
felony mayhem and misdemeanor assault during a fight after
a high school basketball game. He appeals, and we affirm.
BACKGROUND
An information charged Thomas with two counts of
felony assault on Ken C. and Brandon B. by means of force likely
to produce great bodily injury (Penal Code,1 § 245, subd. (a)(4),
counts 1 and 2); one count of felony mayhem against Ken C.
(§ 203, count 3); and two counts of misdemeanor battery against
Alaijian R. and Josiah T. (§ 242, counts 4 and 5).2
1. Prosecution evidence
The events described at trial happened in January 2019,
after a high school basketball game between teams from
San Pedro and Quartz Hill. Ken C., a Quartz Hill player,
was walking out of the gym with his teammates Brandon B.,
Alaijian R., Dan E., and Josiah T. Their coach was waiting in
the team van. Dan E. said something about “two other dudes
trailing behind us.” The two people (who were not players on
the other team) overheard him, asked if he had a problem, and
became aggressive. Ken C. and the other Quartz Hill players
stood there without throwing any punches, and then walked
toward the team van, while the two people went back into
the gym.
Ken C., who was wearing headphones, saw his teammates
turn around. He began to turn around and saw Thomas running
1 All subsequent statutory references are to the Penal Code.
2 Thomas was 18 years old at the time of the charged
offenses, but the victims were minors, so we use their first names
and last initials. The information also charged a codefendant,
Porsha Kiyana Bryant, who is not a party to this appeal.
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out of the gym at him. Without saying anything, Thomas hit
him in the jaw. Ken C. stumbled, but caught himself. Two other
people ran up and starting hitting him with “body shots,” but
one of his friends pulled them off.
Ken C. realized his jaw was “leaking” and he couldn’t talk.
He gathered up his things and got into the team van. His coach
was outside the van trying to break up the fights. Brandon B.
was fighting off four people. Thomas hit Brandon B., who
dropped and was out cold for two minutes.
Ken C. went to the hospital, where they gave him
morphine. After the swelling went down, he had surgery for
a bilateral fracture in his jaw. A metal plate was inserted on
each side of his chin. His face was very swollen for a week, and
his teeth still did not close evenly. For a month he could not
open his mouth more than an inch, ate only liquid food, and was
unable to speak. Ken C. went back to school two months later,
but he had multiple seizures and could not play basketball.
Ken C. had no contact with Thomas during or after
the game.
Brandon B. testified to “a little scuffle” toward the end
of the basketball game. Josiah T. had tried to save a ball that
was headed out of bounds, and the ball hit Thomas, a player
on the San Pedro team. Thomas and Josiah T. got into each
other’s face. Brandon B. got between them and said: “ ‘Break
it up. It’s basketball.’ ” He complimented Thomas on his tattoos,
and “it was cool after that.” There was no penalty. The teams
were playing hard, and the crowd was unusually loud.
When the game was over, Brandon B. left the gym with
four other Quartz Hill players: Dan E., Josiah T., Alaijian R.,
and Ken C. As they walked away, two people approached and
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asked if they had a problem. Brandon B. said no and continued
to walk. He turned around and saw at least 10 more people
coming out of the gym with the two people who had followed
them. Thomas ran out of the gym, and without saying anything,
hit Ken C. in the face. Ken C. immediately started to bleed
heavily from the mouth.
Brandon B. fought with someone else and then saw
Josiah T. getting “stomped” in the bushes, so he jumped
in between Josiah T. and his two or three attackers to help.
He was pushing and pulling people off Josiah T., and then
he saw Alaijian R. getting hit by a woman and a man. When
Brandon B. ran over to pull them off, someone hit him on the jaw.
He didn’t see who hit him; it all happened very fast. He came to
in a female friend’s arms, unable to stand. The paramedics
took him to the hospital, where they cleaned his bloody mouth.
Brandon B. had suffered a concussion, and he did not play
basketball for a month.
Quartz Hill coach Bernard Nichter testified that during
the entire game, a group of San Pedro supporters was yelling
derogatory things from behind the Quartz Hill bench. At the
end of the game a ball hit Thomas but the referees jumped in
immediately. After his team lost to San Pedro, Nichter went out
to the parking lot, pulled the van up, and waited for his players.
He saw Thomas go straight at Ken C. and punch him. Nichter
got out of the van. Ken C.’s mouth was hanging open and
bleeding, and he took a tooth out of his mouth and handed it
to Nichter. Nichter grabbed Ken C. and put him in the van
to calm him down and see how badly he was hurt. Ken C.’s
jaw was broken and blood was gushing out. Nichter called
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Ken C.’s mother and yelled for someone to call the sheriff and
the paramedics.
Nichter saw a skirmish on the other side of the van.
Thomas and two others were on top of Josiah T. He pulled them
off and they started hitting and kicking Alaijian R. Nichter and
Josiah T. pulled them off Alaijian R. They then jumped back onto
Josiah T., while Nichter held Alaijian R. back. When Brandon B.
tried to help Josiah T., they jumped on Brandon B., hitting and
kicking him. Brandon B. fell to the ground, and Nichter ran over
to pull Thomas and the two others off. More than 20 people were
in the parking lot, and it was “absolute chaos.” A woman first
acted as if she wanted to help Brandon B., but then she punched
and kicked him before Nichter managed to pull her off. Brandon
B. was unconscious, with his eyes rolled back in his head.
Josiah T.’s face was badly swollen and bruised the next
day. Alaijian R. was bruised too.
A deputy who arrived at the chaotic and crowded scene
found Ken C. in the back of an ambulance, bleeding from the
mouth and unable to talk, with a badly swollen jaw. Brandon B.
was on the ground being tended to by paramedics. When he tried
to stand up, he fell right back over. The other injuries were not
serious.
A security guard ran out to the parking lot after three to
four San Pedro fans who were chasing down a Quartz Hill player,
who then fell to the ground, bleeding from the mouth. A second
Quartz Hill player was unconscious, and a third player was
beaten up in the bushes. The San Pedro fans ran to two or three
cars and took off.
Steven Young, the chief referee, testified he saw San Pedro
players running toward Quartz Hill players who were preparing
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to get into the van. Thomas punched a Quartz Hill player in
the face with no provocation. A melee began with fights breaking
out everywhere. Thomas and several others punched a second
Quartz Hill player, who went down hard and lost consciousness.
A woman handed off her child and kicked the unconscious player
in the head. Young ran to him and fended off additional
attackers. When the second player came to, he was delirious.
Young was not sure whose punch had knocked the player out.
The Quartz Hill coach was crying.
2. Defense evidence
Corey Walsh, a special education teacher and football coach
at San Pedro High School, testified Thomas was in his special
education caseload and played in the football program. Thomas
was aggressive on the field but not in normal life. Walsh had
seen him pull two boys off one of his friends in an altercation
during football practice, and never saw him start a fight. Thomas
was calm, respectful, and playful, although he could be naïve
and impulsive.
Walsh admitted he had approached the mothers of two
of the victims outside the courthouse. When he told them he was
Thomas’s football coach, one cursed at him and the other calmed
her down. He was just trying to get their side of the story, and
although he felt attacked, he stayed calm. He did not intend
to influence their testimony.
A special education support provider at Thomas’s high
school testified she met with him monthly. He was calm,
peaceful, and shy, and never aggressive or violent.
Thomas’s aunt testified she was at the gym entrance after
the game. Her godsons Taj and Conroy left, and then Taj ran
back in saying, “[T]hey are jumping us.” People from the
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bleachers started going out, and Thomas went outside with
the crowd. Twenty-five to 30 people were fighting.
Thomas testified that during the game he tried to save
a ball going out of bounds. The ball hit Ken C. in the groin, and
Ken C. got a little upset. Thomas changed out of his uniform
after the game. As he started to leave the gym, Taj ran back in
and yelled that his brother was being jumped. When Thomas
went outside, Conroy was backing up slowly, exchanging words
with four or five Quartz Hill players. Thinking Conroy might
get hit, Thomas pushed him back with his left hand and told him
to go to the car. He looked to see what was happening. He then
looked to his left and didn’t see Conroy. When Ken C. stepped
forward and raised his hand, Thomas thought he was going
to be hit. He reacted by hitting Ken C. once in the cheek. Ken
C. stumbled and ran off. Thomas’s coach told him to leave.
3. Rebuttal evidence
In rebuttal, Brandon B.’s mother testified Walsh
approached her and Ken C.’s mother outside the courthouse.
Walsh asked if they thought their sons had anything to do with
Thomas’s attacks on them. His demeanor was intimidating.
Ken C.’s mother asked Walsh to walk away, and she took Walsh’s
photograph when he refused. He asked them why, and Brandon
B.’s mother answered: “ ‘Because you’re harassing me.’ ”
The jury convicted Thomas of misdemeanor assault on
Brandon B. (§ 240), a lesser crime of the felony assault charged
in count 2, and felony mayhem against Ken C. as charged in
count 3. The jury acquitted Thomas of the battery charges in
counts 4 and 5. The jury deadlocked on count 1, felony assault
on Ken C., and the court declared a mistrial.
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The trial court sentenced Thomas to the midterm of four
years on the mayhem count, suspended execution of the sentence,
and placed Thomas on five years’ formal probation and ordered
him to serve 364 days in county jail. The court ordered Thomas
to serve a consecutive 180 days in county jail on count 2, and to
perform 60 days of community labor. The court also ordered
Thomas to complete an anger management counseling program,
and imposed fines and fees as we describe below.
Thomas filed this timely appeal.
DISCUSSION
1. The trial court did not abuse its discretion when it
declined to investigate following a note from the jury
During deliberations, the jury requested clarification of the
instructions and a readback of the testimony of Young, Ken C.,
and Coach Nichter. The jury then sent a note stating it was
deadlocked. The next morning, the court read the note: “We are
currently stuck at a 8-4 deadlock. We were at an 8-4 deadlock
throughout Friday deliberation. We have heard all the evidence
including the readback of the testimonies. We understand
the interpretation of the law. However, at this point we have
ceased deliberation due to a lack of evidence that is necessary
to alleviate the reasonable doubt that exists amongst some of us.
We are unanimous for four counts, but we are deadlocked for
one count. In addition, the subject of race has been brought up
amongst one of our jurors towards another juror. We are
wondering what is our path forward.” (Italics added.)
Defense counsel objected to the court’s proposed special
instruction on a deadlocked jury, which was based on language
approved in People v. Whaley (2007) 152 Cal.App.4th 968, and
People v. Moore (2002) 96 Cal.App.4th 1105. The prosecutor
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supported the instruction, but added: “My main concern is . . .
it sounds like there may be some other issues in that jury room
if they are bringing each other’s race into question in their
deliberations. I don’t know if the court wants to investigate
that further.” The court offered to read the instruction telling
the jurors not to take race into account or to let it influence the
verdict, “but I’m reluctant to inquire about it since they don’t
say what the context is for that.” If the jury continued to be
deadlocked, “the court would inquire as to whether it is due to
a general disagreement or a failure to deliberate by one or more
jurors.” The court thought the note meant there was a general
disagreement, but if both sides wanted “the court to inquire and,
if they all indicate that they are hopelessly deadlocked, declare
a mistrial as to whichever count it is, I can do that.” The
prosecutor asked for the instructions. The defense asked the
court not to give the jury instructions, and to declare a mistrial
on the deadlocked count.
The court called the jury into the courtroom and reread
CALCRIM No. 200 telling the jury not to allow bias based on
race or other factors to influence its decision. The court also read
the special instruction.
The jury retired, and then sent a new note: “We have
implemented upon your guidelines and we have deliberated in a
respectful manner. However, we still remain deadlocked at 8 to 4
for the remaining count. What is our path forward at this point?”
Both counsel agreed with the court’s stated intention to bring
the jurors out, ask if there was anything further the court could
do to encourage them to reach a verdict, and verify the deadlock
was based on a genuine disagreement rather than a failure to
deliberate. If nothing further could be done, the court would
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take the verdicts on the other counts and declare a mistrial
on the count that was the subject of the deadlock.
The jury returned to the courtroom with another note
stating it was still deadlocked on one count. The court inquired,
and the foreperson answered the deadlock was on count 1 (felony
assault on Ken C.). The foreperson stated they had taken six
ballots and the split was eight to four throughout. The court
polled the individual jurors, all of whom stated the jury was
hopelessly deadlocked and further deliberations would be futile.
The court found the jury was deadlocked on count 1, and declared
a mistrial as to count 1 only.
Thomas argues the trial court violated his constitutional
rights when it failed to investigate whether the statement in
the jury’s note (that one juror brought up the subject of race
to another juror) meant at least one juror was racially biased.
We review for an abuse of discretion the court’s decision not
to conduct a hearing or detailed inquiry. (People v. Keenan
(1988) 46 Cal.3d 478, 532, 539; People v. Ray (1996) 13 Cal.4th
313, 343.)
An impartial jury is one in which no juror is incapable
or unwilling to decide the case solely on the evidence at trial.
(In re Hamilton (1999) 20 Cal.4th 273, 293-294.) If the trial court
finds a juror is unable to perform this duty because the juror is
actually biased, the court may discharge the juror and substitute
an alternate. (People v. Keenan, supra, 46 Cal.3d at p. 532.)
Once the court is on notice that there may be good cause to
discharge a juror, the court has a duty to conduct whatever
inquiry is reasonably necessary. But the court also must protect
the sanctity of deliberations, and “not every incident involving
a juror’s conduct requires or warrants further investigation.”
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(People v. Cleveland (2001) 25 Cal.4th 466, 478, 484.) Before
conducting any inquiry into allegations of misconduct, it is
often appropriate to reinstruct the jury and to permit the jury
to continue its deliberations. (Id. at p. 480.) When reinstruction
does not resolve the problem, and the court is on notice there
may be grounds to discharge a juror during deliberations, then
the court has a duty to conduct whatever inquiry is reasonably
necessary. (Ibid.; see People v. Espinoza (1992) 3 Cal.4th 806,
821.)
The note stated that race had been brought up between
two jurors. It did not state that one or both jurors displayed
racial bias. The court reinstructed the jury not to be influenced
by racial bias and to continue to deliberate. The jury’s next note
stated the jury had “implemented upon your guidelines and . . .
ha[d] deliberated in a respectful manner.” This told the court
the jury had heeded the court’s repeated instructions (including
on racial bias), but still could not resolve the vote split on count 1.
The court called the jury out, verified unanimity was impossible,
and with the prior agreement of defense counsel, declared a
mistrial on count 1.
The trial court did not abuse its discretion in not
conducting further inquiry. The second note from the jury
informed the court that, following reinstruction, the jury
had deliberated respectfully. And (although this is not
determinative), the trial court’s declaration of a mistrial
on Count 1 was defense counsel’s requested response to
the jury’s note.
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2. No substantial evidence supported an instruction
on defense of another
During a discussion of jury instructions, defense counsel
requested “a defense of another instruction.” The trial court
stated the evidence did not show defense of others. Thomas
had testified his initial concern was for Conroy, but he had
pushed Conroy back, and then Ken C. raised his arm. The
evidence supported a self-defense instruction, but not that
Thomas thought at that moment anyone else was in danger.
Counsel responded, “I see.” The court gave a self-defense
instruction but did not instruct on defense of another.
The doctrine of “defense of another” requires evidence
the defendant reasonably believed, first, that a third party
was in imminent danger of suffering bodily injury, and, second,
the immediate use of force was necessary to defend against
that imminent danger to the third party. (CALCRIM No. 3470;
People v. Abelino (2021) 62 Cal.App.5th 563, 579, fn. 13.)
Thomas testified he thought Conroy might get hit, so he
pushed Conroy back with his left hand and told him to go to
the car. Thomas looked to see what was going on, then looked
to his left and did not see Conroy. When Ken C. stepped forward
and raised his hand, Thomas thought he himself would get hit,
so he hit Ken C. This testimony shows that Conroy was out of
the way and out of Thomas’s sight before Ken C. raised his hand,
and is not substantial evidence that Thomas reasonably believed
Conroy was in imminent danger. Thomas does not point to any
other evidence that he acted in defense of another. The trial
court properly refused to give an instruction unsupported by
the evidence.
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3. Fines and fees
The trial court ordered Thomas to pay a restitution fine
of $300 (§ 1202.4); a stayed $300 probation revocation fine
(§ 1202.44); a stayed $300 parole revocation fine (§ 1202.45);
$80 in court security fees (§ 1465.8); and a $60 conviction
assessment (Gov. Code, § 70373). Thomas argues the imposition
of those fines and fees without a determination that he had
an ability to pay violated due process, citing People v. Dueñas
(2019) 30 Cal.App.5th 1157, 1164. Dueñas, decided in January
2019, held that due process of law requires a trial court to
determine a defendant’s present ability to pay before imposing
court facilities and court operations assessments or a restitution
fine. (Id. at pp. 1164, 1172.)
Although Thomas’s February 4, 2020 sentencing hearing
was more than a year after the Dueñas decision, he did not object
to the imposed costs. This typically forfeits the right to challenge
the fines and fees on appeal. (People v. Aguilar (2015) 60 Cal.4th
862, 864; People v. Trujillo (2015) 60 Cal.4th 850, 856-859;
People v. McCullough (2013) 56 Cal.4th 589, 596-597.) Applying
this general rule, we conclude Thomas forfeited the issue. (See
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153-1155.)
In supplemental briefing, Thomas argues his counsel
was ineffective when she did not object. We reject this claim
because he has not shown a reasonable possibility of prejudice.
His sentencing memorandum stated he had been on the way
to college with a football scholarship, came from a humble
background, had lost his mother before the incident, had been
a participant in a homeless student program, and was enrolled
in special education, as among other mitigating factors why
he should not receive a prison sentence. This record does not
13
establish he was indigent and unable to pay. “[R]arely will
an appellate record establish ineffective assistance of counsel.”
(People v. Thompson (2010) 49 Cal.4th 79, 122.) This is not
that rare appellate record.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
LAVIN, J.
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