People v. Thomas CA2/8
B317246
| Cal. Ct. App. | Mar 29, 2022Background
- Defendant Jeffrey Anthony Thomas (stepfather) was convicted by a jury of forcible lewd and lascivious act on a child under 14 (Pen. Code § 288(b)(1), count 1) and an earlier lewd act (lesser included of count 4). Brooke, the victim, was 11 at the November 12, 2014 incident.
- On November 12, 2014, Brooke was found on the bedroom floor with shorts/panties down and Thomas’s head near her genitals; her mother interrupted and Brooke later disclosed Thomas had been licking her and had done so previously.
- Evidence showed repeated molestation over about a year, threats to keep Brooke silent, physical violence by Thomas toward the family, and the victim’s fear and inability to resist.
- The trial court imposed the upper terms for both counts (10 + 8 = 18 years) and various fees; defendant did not testify at trial.
- On appeal Thomas challenged (1) sufficiency of evidence that force/duress was used on November 12, (2) use of CALCRIM No. 1191B jury instruction, and later raised (3) sentencing issues under recent legislation and (4) certain fees and consecutive sentencing under Penal Code § 667.6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that force/duress was used on Nov. 12, 2014 | There is substantial evidence of duress from defendant’s age, authority, prior sexual acts, violence, threats, and victim’s fear | Brooke merely acquiesced; no contemporaneous threat or force shown for that specific incident | Affirmed. Substantial evidence supported implied duress given prior abuse, threats, violence, victim’s age and relationship |
| Use of CALCRIM No. 1191B (allowing proof of other charged crimes) | Instruction is valid under controlling precedent | Instruction violated defendant’s constitutional rights by permitting impermissible inference from other charges | Rejected. Court follows Supreme Court precedent upholding CALCRIM No. 1191B |
| Sentencing upper terms after Senate Bill No. 567 (presumptive middle term) | Prosecution concedes new law applies retroactively and requires resentencing | Defendant seeks resentencing under SB 567 | Remand for resentencing. Upper-term selection vacated; court must apply new §1170(b) middle-term presumption unless aggravating facts proved or admitted |
| Fees and consecutive sentencing under §667.6 | Prosecution concedes unpaid presentence report fee and booking fee must be vacated; consecutive terms under §667.6(c)/(d) cannot be imposed here | Defendant seeks vacatur of specified fees and argues §667.6 does not authorize full consecutive terms | Remand: vacate any unpaid balance of identified fees per AB 1869; cannot impose consecutive sentences under §667.6(c) or (d); resentencing required |
Key Cases Cited
- People v. Zamudio, 43 Cal.4th 327 (2008) (standard of review for sufficiency: view evidence in light most favorable to prosecution)
- People v. Garcia, 247 Cal.App.4th 1013 (2016) (defines duress and factors relevant to implied threat analysis)
- People v. Thomas, 15 Cal.App.5th 1063 (2017) (when a young victim is molested by a parent in the family home, duress is generally present)
- People v. Veale, 160 Cal.App.4th 40 (2008) (victim’s fear of stepfather supports finding of duress)
- People v. Villatoro, 54 Cal.4th 1152 (2012) (upholding CALCRIM No. 1191B jury instruction under Supreme Court precedent)
- People v. Meneses, 41 Cal.App.5th 63 (2019) (appellate decision upholding CALCRIM No. 1191B after similar challenge)
- People v. Flores, 73 Cal.App.5th 1032 (2022) (application of SB 567: middle term presumptive; retroactive resentencing guidance)
- People v. Greeley, 70 Cal.App.5th 609 (2021) (AB 1869 prohibits certain administrative fees and extinguishes outstanding related debt)