Filed 3/29/22 P. v. Thomas CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B317246
Plaintiff and Respondent, Madera County
Super. Ct. No. MCR050285
v.
JEFFREY ANTHONY THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera
County, Mitchell C. Rigby, Judge. Affirmed in part, vacated in
part, and remanded for resentencing.
Derek K. Kowata, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Eric L. Christoffersen, Ross K.
Naughton and Robert C. Nash, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________
A jury convicted Jeffrey Anthony Thomas of two sex crimes
against his stepdaughter. Thomas claims insufficient evidence
supports one of his convictions. He also seeks reversal based on
an instructional issue our Supreme Court already has decided
against him. We affirm Thomas’s convictions. However, we
vacate his sentence and remand the matter for resentencing in
light of recent sentencing legislation. We also direct the trial
court to adjust the fees Thomas owes. Undesignated statutory
references are to the Penal Code.
I
In 2015, an information charged Thomas with various sex
crimes against his stepdaughter, Brooke. The information had
five counts.
After eight days of testimony, a jury found Thomas guilty of
committing a forcible lewd and lascivious act upon a child under
14 (§ 288, subds. (a) & (b)(1)) (count 1) and committing an earlier
lewd and lascivious act on this child (§ 288, subd. (a)) (a lesser
included offense of count 4). The trial court sentenced Thomas to
18 years in state prison, composed of the upper term of 10 years
for the first count and the upper term of eight years for the latter
count. The court also imposed various fines and fees, some of
which we discuss below.
Thomas argues insufficient evidence supports count 1, so
we focus on this count and related facts. The count concerns
events on November 12, 2014, when Brooke was 11. We provide
some background before delving into these events. We largely
omit contrary facts. Our job in appeals of this kind is to look for
substantial evidence supporting the verdict, not to resolve
evidentiary conflicts. (See People v. Zamudio (2008) 43 Cal.4th
327, 357 (Zamudio).)
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A
Thomas married Brooke’s mother Sara in April 2011.
Brooke was seven at the time. She and her three brothers called
Thomas “Dad.”
Over the years, the children and Sara witnessed Thomas’s
temper and his violence. Brooke reported Thomas spanked her
and left bruises; he “slaps and kicks and punches”; once he
punched her in the side; he used a belt on her brothers; and he
would punch doors and walls.
One of Brooke’s brothers testified Thomas was threatening
at times, and he would hurt or assault the stepchildren when he
got angry. The boy said Thomas “choked out” his older brother
with a pole once; the brother confirmed it. The older brother also
testified Thomas would punch holes in doors sometimes and was
“pretty scary” when mad.
According to Sara, Thomas could be violent, aggressive,
threatening, and verbally abusive. Sometimes he was physically
abusive. In 2013, Thomas kicked her during an argument. In
2012, police arrested Thomas after Sara found him on top of
Brooke. Brooke had red marks on her neck and claimed Thomas
choked her. Thomas denied it.
B
On November 12, 2014, after returning home from work,
Sara heard a sound that was part-laugh, part-scream. It came
from Brooke’s room. Sara went to investigate, opened the
bedroom door, and found Thomas and her daughter on the floor.
Brooke was on her back. Her knees were bent, and her shorts
and panties were down. Thomas was bent over Brooke in
between her legs with his head by her genitals. Sara said
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something to the effect of, “What the fuck is going on in here?”
and “Why are her pants off?”
Brooke seemed nervous and scared, and her eyes welled
with tears. Thomas said nothing happened and Brooke had set
him up. He claimed he was just tickling her. Then he and Sara
argued.
At first, Brooke said Thomas was tickling her because she
did not want to get him in trouble. But eventually she told her
mother Thomas had been licking her and had done this before.
Thomas punched a hole in the bedroom door. He accused
Brooke of lying and said he was going to kill her and her family.
He grabbed Brooke’s ponytail and jerked her backwards, making
her cry. He later told the boys Brooke was a liar and was
breaking up the family; now they would not have a dad again.
Brooke described details about that night. She got in
trouble and was in her room. Thomas came in and told her to get
off her bed. She went to the floor “[b]ecause he’s done it for so
long, that I knew to just lay on the floor.” Thomas pulled her
pants down and licked her vagina. She pulled her pants up,
worried her mother would catch them. Thomas then tickled her,
making her laugh, and pulled her pants back down. He kept
licking her vagina until Sara came in.
Brooke’s brothers did not see what happened in her
bedroom. Some of them reported hearing things consistent with
what we have described. The brothers felt Brooke lied and got in
trouble a lot and their mother also lied. One brother felt Brooke
tried to get back at Thomas for getting her in trouble.
C
There had been other incidents besides the one in
November 2014. Brooke described some of them to her mother, to
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a detective, to a child forensic interviewer, and to others. A
number of interviewers testified at trial, and the jury heard
several recorded interviews. Sara, Brooke, and Brooke’s three
brothers also testified. Thomas did not.
Brooke said it started when she was 10. Thomas had her
watch a movie with naked people in it. Later that night, he came
to her room, pulled down her pants, and took pictures of her with
his phone.
Thomas first licked her vagina when she was 10, and he did
it many times thereafter. He made Brooke lick his penis multiple
times and made her shower with him more than once. He told
Brooke not to tell her mother and another time said, “don’t tell
anyone.”
Thomas did these things when Sara was at work. He
would make Brooke’s brothers leave the house and go play at the
park or ride their bikes.
Brooke’s brothers corroborated that Thomas would send
them to the park or out for a walk while he stayed behind with
Brooke. One brother observed, upon returning home, that Brooke
and Thomas “would always be in towels and their hair would be
wet.” Once he saw them both walk out of the bathroom with wet
hair. He told an investigator he never said anything about it
because he did not want to get killed by Thomas.
Brooke testified she never felt safe being alone with her
stepfather. She felt she could not get away when he licked her
vagina and when he would tell her to lick his penis. She thought
he would hurt her if she tried to get away “[b]ecause he’s always
hurt me and my family.” When she tried to move her head away
from his penis, he “grabbed [her] head and put it back to his
penis.” She was afraid of him.
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Similarly, Brooke told an investigator she showered with
Thomas, even though she knew she would get in trouble if her
mother caught her, “because sometimes he takes his anger out
and punches holes in the wall. [¶] . . . [¶] And I didn’t want that
to happen.”
On cross-examination, Brooke admitted she once said the
worst thing Thomas did to her was punch her. This was worse
than his licking her vagina, she later explained, because his
punches left bruises and people at school would ask about them.
“But when he would lick my vagina, nobody would know.”
II
On appeal, Thomas does not challenge the jury’s findings
that he committed lewd acts. Rather, he contends there is
insufficient evidence he used force or duress on November 12,
2014. The evidence, he says, shows Brooke “merely acquiesced”
to his “overtures.”
In reviewing claims of insufficiency of evidence, we
examine the record in the light most favorable to the prosecution.
We discern whether there is substantial evidence from which any
rational trier of fact could find the elements of the crime beyond a
reasonable doubt. And we presume in support of the judgment
the existence of every fact the jury reasonably could deduce from
the evidence. (Zamudio, supra, 43 Cal.4th at p. 357.)
Under section 288, subdivision (b)(1), a defendant who
commits a lewd or lascivious act upon a child under age 14 “by
use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person” is guilty
of a felony.
“Duress” means a direct or implied threat of force, violence,
danger, hardship, or retribution sufficient to coerce a reasonable
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person of ordinary sensibilities to perform an act which otherwise
would not have been performed or acquiesce in an act to which
one otherwise would not have submitted. (People v. Garcia
(2016) 247 Cal.App.4th 1013, 1023.) In making this assessment,
courts consider the total circumstances, including the victim’s age
and relationship to the defendant, the relative vulnerability of
the victim, threats to harm the victim, and physically controlling
a victim who resists. (People v. Thomas (2017) 15 Cal.App.5th
1063, 1072 (Thomas).) “When the victim is young and is
molested by her father in the family home, duress will be present
in all but the rarest cases.” (Id. at pp. 1072–1073.)
Substantial evidence supports the jury’s finding that
Thomas used duress against Brooke. We need not reach the
issue of force.
At the time of this incident, Brooke was 11. Thomas was
45. He was her stepfather and an authority figure who
disciplined her. Thomas had molested her in the family home
over the course of a year. He had forced her to orally copulate
him, even when she tried to pull away. He had warned her to
keep quiet. He was violent with Brooke and her family. In short,
Thomas gave Brooke reason to fear him, and she did fear him.
A rational jury could find from these circumstances that
Thomas used duress to accomplish the lewd acts on November 12,
2014. (See Thomas, supra, 15 Cal.App.5th at p. 1073 [jury could
reasonably find father’s continual beatings constituted an implied
threat of violence or danger if his daughter did not submit to his
sexual abuse]; People v. Veale (2008) 160 Cal.App.4th 40, 44, 47
(Veale) [testimony that stepdaughter feared her stepfather
supported finding of duress].)
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Thomas argues there was no evidence of a threat to Brooke
preceding his lewd acts, and an after-the-fact threat does not
suffice. His argument ignores the extensive evidence outlined
above of his violence before the November 2014 incident. The
evidence supports a reasonable inference Thomas made an
implied threat of force or violence if Brooke did not submit to
him. That suffices. (See Veale, supra, 160 Cal.App.4th at p. 51;
see also Thomas, supra, 15 Cal.App.5th at p. 1074 [“Threats may
be inferred from conduct and even by silence.”].)
Brooke’s various reports of Thomas’s actions were not
entirely consistent, but this is of no moment in our review. For
example, once Brooke said nothing happened in the shower; but
then she testified Thomas licked her there. These sorts of
inconsistencies do not warrant reversal. We reverse only if it
appears there is insufficient evidence to support the verdict
under any hypothesis. (Zamudio, supra, 43 Cal.4th at p. 357; see
also id. at p. 358 [no reversal where the circumstances reasonably
justify the jury’s findings but also could support a contrary
finding].) There was sufficient evidence here.
III
Thomas argues both of his convictions should be reversed
because the trial court instructed the jury with CALCRIM No.
1191B, which violated his constitutional rights by allowing the
jury to use proof of one charged crime to infer he committed other
charged crimes.
Thomas acknowledges we are bound by precedent to
conclude otherwise, citing People v. Villatoro (2012) 54 Cal.4th
1152, but invites us to disagree with our Supreme Court.
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We follow precedent, as we must, and reject Thomas’s
argument. (See People v. Meneses (2019) 41 Cal.App.5th 63, 68
[upholding CALCRIM No. 1191B after a similar challenge].)
IV
More than one year after the appellate briefing concluded,
Thomas filed a supplemental brief arguing we must remand his
case for resentencing and strike certain fees from the judgment.
The prosecution concedes both issues.
Regarding sentencing, the trial court imposed the upper
terms on both counts for a total of 18 years after finding “the
circumstances in aggravation do preponderate and support the
imposition of the aggravated term for the counts.” However,
Senate Bill No. 567 (2021–2022 Reg. Sess.), which became
effective January 1, 2022, amended section 1170 and generally
makes the middle term the presumptive sentence. Under the
new law, a court cannot choose upper terms based on aggravating
factors that were not found true beyond a reasonable doubt at
trial or admitted by the defendant, neither of which happened
here. (See § 1170, subd. (b)(1) & (2), added by Stats. 2021,
ch. 731, § 1.3.) The parties agree the new law applies
retroactively. Thus, the case must be remanded for resentencing
consistent with the changes to section 1170, subdivision (b). (See
People v. Flores (2022) 73 Cal.App.5th 1032, 1038–1039.)
Regarding fees, Thomas contends any unpaid portion of the
felony presentence report fee ($750) and the booking fee ($108.19)
reflected in the judgment must be stricken under Assembly Bill
No. 1869 (2019–2020 Reg. Sess.), which became effective July 1,
2021. This bill eliminated certain administrative fees and any
related outstanding debt. (See People v. Greeley (2021) 70
Cal.App.5th 609, 625–626.) The prosecution agrees it applies to
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the fees Thomas identifies. Accordingly, any unpaid balance of
these fees should be vacated. (See id. at pp. 626–627.)
V
On the initial submission date, Thomas sought to file
another supplemental brief raising a new sentencing issue. We
permitted the filing and ordered additional briefing.
Thomas argues the trial court erred in imposing full
consecutive sentences under section 667.6, subdivision (d), and
subdivision (c) of that section also does not permit consecutive
sentencing here. The prosecution concedes both issues. We
agree. The case must be remanded for resentencing on this
ground as well.
On remand, the trial court may not impose consecutive
sentences under section 667.6, subdivision (c) or (d).
DISPOSITION
We vacate Thomas’s sentence and remand this matter for
resentencing. We also vacate any unpaid balance of Thomas’s
felony presentence report fee and booking fee. The amended
abstract of judgment following resentencing should reflect this
vacatur. We otherwise affirm.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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