Fear Not Law Articles: Thomas v. Harris

Thomas v

Thomas v. Harris

Filed 9/5/12 Thomas v. Harris CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
THREE

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KEITH
THOMAS,

Plaintiff and Appellant,

v.

KAMALA
HARRIS, as Attorney General, Etc.,

Defendant and Respondent.

A133349

(San
Francisco County

Super. Ct.
No. CGC-11-507972)

Plaintiff
and appellant Keith Thomas argues the trial court was wrong to sustain
defendant Attorney General Kamala Harris’s demurrer to his complaint without
leave to amend. Thomas seeks to impose
civil liability upon the Attorney General because, according to his allegations,
an incorrect jury instruction was used when he was successfully prosecuted for href="http://www.mcmillanlaw.com/">battery committed by gassing under Penal
Code section 243.9. As the Attorney
General, or any public employee involved in prosecuting the charge against
Thomas, was statutorily immune from civil liability for acts undertaken in the
course of a judicial proceeding, the
trial court was correct. Moreover, since
any judgment in favor of Thomas would necessarily imply the invalidity of his
conviction for battery by gassing, his complaint must be dismissed. There is no possibility that Thomas could
cure the defect in his complaint by amendment.
We affirm.

>FACTUAL AND LEGAL BACKGROUND

Thomas
filed a civil complaint against
Attorney General Harris, and other defendants described as the Judicial
Council, the Administrative Office of the Courts, the Office of the General
Counsel, the Advisory Committee and the California Revision Commission. The complaint sought injunctive relief due to
the erroneous use of CALCRIM No. 2272 in a trial where Thomas was charged and
convicted of battery by gassing under Penal Code section 243.9.

The
Attorney General was served and demurred to the complaint. Thomas opposed the demurrer, and the trial
court sustained it without leave on August
26, 2011. This appeal is
timely.

>DISCUSSION

            California Government Code section 821.6 provides:  “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”  In order to further the rationale underlying the immunity conferred by section 821.6, the courts give it an expansive interpretation so prosecutors may freely exercise their discretion and be protected from harassment in the performance of their duties.  (>Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.)

To the extent Thomas is seeking to impose civil liability
on a public officer or employee due to their incorrect use or promulgation of
CALCRIM No. 2272,
Government Code section 821.6 provides them immunity from suit. To the extent Thomas is arguing that his
conviction resulted from the improper use of CALCRIM No. 2272, his claim is not one
that may be asserted in a civil action unless he can show that his conviction
has been invalidated. (>Yount v. City of >Sacramento>
(2008) 43
Cal.4th 885, 896–897.) It has not. (See People
of the State of California v. Keith Thomas (November
15, 2010,
D056958 [nonpub. opn.].) Thomas can
state no cognizable cause of action. The
trial court correctly sustained the demurrer to the complaint without leave to
amend.
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>DISPOSITION

The judgment is affirmed.

_________________________

Siggins,
J.

We concur:

_________________________

McGuiness, P.J.

_________________________

Pollak, J.

Description	Plaintiff and appellant Keith Thomas argues the trial court was wrong to sustain defendant Attorney General Kamala Harrisâ€™s demurrer to his complaint without leave to amend. Thomas seeks to impose civil liability upon the Attorney General because, according to his allegations, an incorrect jury instruction was used when he was successfully prosecuted for battery committed by gassing under Penal Code section 243.9. As the Attorney General, or any public employee involved in prosecuting the charge against Thomas, was statutorily immune from civil liability for acts undertaken in the course of a judicial proceeding, the trial court was correct. Moreover, since any judgment in favor of Thomas would necessarily imply the invalidity of his conviction for battery by gassing, his complaint must be dismissed. There is no possibility that Thomas could cure the defect in his complaint by amendment. We affirm.
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