P. v. Thomas
Darren Boyer Thomas was convicted by jury of rape of an incompetent person (Pen. Code, 261, subd. (a)(1)).[1] A second jury convicted him of committing perjury under oath in those proceedings ( 118, subd. (a)). That jury also found true the allegation that Thomas committed the perjury offense while he was out on bail on the rape charge ( 12022.1, subd. (b)). He was sentenced to a total term of 11 years state prison, consisting of the upper term of eight years for the rape count, one year (one-third of the midterm) for the perjury count, plus an additional consecutive term of two years for the on-bail allegation. Thomas appeals both judgments. As to the rape conviction, he contends that the trial court erroneously denied his motion to suppress evidence and sentenced him to the upper term in violation of Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham). In challenging his conviction for perjury, he asserts that the court committed instructional error. Court affirm both judgments.
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