Opinion
F072699
02-14-2018
THE PEOPLE, Plaintiff and Respondent, v. HOSH DEION THOMAS, Defendant and Appellant.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF158288A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Hosh Deion Thomas was convicted of assaulting Jane Doe No. 1 by means of force likely to produce great bodily injury. He was convicted of raping Jane Doe No. 2 and also sodomizing and orally copulating her. He argues that the sodomy conviction should be reversed because the evidence was insufficient to show that he penetrated Jane Doe No. 2's anus with his penis. He also argues that the court should not have admitted evidence of a prior rape conviction under Evidence Code section 1108 because the circumstances of the prior offense were dissimilar to those of the current offenses. We reject these contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The district attorney filed an information charging Thomas with five counts: (1) forcible rape of Jane Doe No. 1 in November 2014 (Pen. Code, § 261, subd. (a)(2)); (2) assault of Jane Doe No. 1 in November 2014, by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)); (3) forcible rape of Jane Doe No. 2 in May 2014 (§ 261, subd. (a)(2)); (4) forcible sodomy of Jane Doe No. 2 in May 2014 (§ 286, subd. (c)(2)(A)); and (5) forcible oral copulation of Jane Doe No. 2 in May 2014 (§ 288A, subd. (2)(A)).
All statutory references are to the Penal Code unless otherwise indicated.
For sentence enhancement purposes, the information alleged that on March 17, 2008, Thomas was convicted of forcible rape (§ 261, subd. (a)(2)). This prior offense was alleged pursuant to section 667.61, subdivision (d)(1) (25-to-life term for forcible rape, sodomy or oral copulation with a prior forcible rape, sodomy or oral copulation) and sections 667, subdivisions (c)-(j), and 1170.12, subdivisions (a)-(e) (prior strike).
Thomas and Jane Doe No. 2 knew each other from college classes and had been friends for a couple of months. According to her testimony, on the night of May 1, 2014, the two of them had been at his apartment talking for about two hours. He served her a single alcoholic drink from a bottle with no label. About thirty minutes after that, there was a gap in her memory, and the next thing she remembered was being in his bedroom with her pants and underwear off. He pushed her onto the bed. She struggled to get away from him and told him to stop, but he got on top of her and choked her with his hands. She could not breathe. Then he performed oral sex on her and forced her to perform oral sex on him. Next, he put his penis in her vagina. She told him to stop, but he continued. Finally, he turned her around. She did not remember him penetrating her anus, but she believed he did, because her anus was sore for the next two days. At around 2:00 a.m., she found her clothes, got dressed, and left. The next day, she had bruises on her arms and back. She remembered Thomas slapping her face, hitting her back with open hands, and painfully grabbing her arms. The vaginal sex was painful. Jane Doe No. 2 had been a virgin before the attack.
On cross-examination, Jane Doe No. 2 testified that there was an occasion prior to May 1, 2014, when she and Thomas were drinking and kissing at his apartment. He tried to take her shirt off on that occasion, but she told him to stop. He stopped and she left. On May 1, 2014, she had had two mixed drinks with her cousin before she went to Thomas's apartment.
Thomas testified that he and Jane Doe No. 2 performed oral sex on each other that night downstairs on the couch. She did this willingly and never resisted or told him no. She had helped him take his pants off. After the oral sex, they went up to the bedroom, where they both tried to insert his penis into her vagina. He did not have an erection and they failed. Then she said they should stop, and they did. He did not have anal sex with her or attempt to do so.
According to Thomas, he and Jane Doe No. 2 kissed "sometimes" on occasions before May 1, 2014, not just the one prior time she described. On May 1, 2014, she brought some drinks with her. They each had one of those, and then Jane Doe No. 2 mixed herself a drink with Thomas's liquor.
Thomas and Jane Doe No. 1 also knew each other from college. She testified that they were best friends and hung out together two or three times a week. Around September of 2014, however, he developed a romantic interest in her. She still wanted to be just friends and began seeing him less often. On the evening of November 12, 2014, according to her testimony, they were drinking together in his apartment. He started tickling her. This was not unusual between them and she allowed it. Then, however, he began to punch her in the abdomen. She yelled at him to stop, but he continued, saying he loved her. Next, he pinned her hands, took off her pants, and then choked her until she blacked out. She regained consciousness face down on the stairs. Thomas put his mouth on her vagina. She told him to get a condom, hoping he would walk away to do it so she could flee, but he had a condom nearby. He penetrated her vagina with his penis. She told him to stop. He continued for a couple of seconds and then stopped and said he was sorry. She put her pants back on and knocked a couch over while looking for her keys. Then she left.
On cross-examination, Jane Doe No. 1 denied that she and Thomas had kissed or been romantic during their friendship.
According to Thomas's testimony, he and Jane Doe No. 1 made out every day for one week in June 2014. On two of these days, she touched his penis. On November 12, 2014, the night of the attack, the tickling she described led to her touching his penis and guiding his hand to her vagina. He kissed her and she kissed him back. Then he took off Jane Doe No. 1's pants and performed oral sex on her. She did not tell him to stop or push him away. She told him to go get a condom. He went to get one and came back and handed it to her. She put it down, however, and performed oral sex on him. Then she went to the stairs, told him to come over, and got on her hands and knees. He penetrated her vagina with his penis. She made a sound as if in pain, and he asked if she was okay. She said no. He ejaculated and withdrew his penis. Jane Doe No. 1 then became angry when she saw that Thomas had not used the condom. Thomas admitted he had recently had sex with another partner who was infected with chlamydia. Jane Doe No. 1 became angrier and began turning over the furniture. He tried to stop her and she hit him. Then he punched her in the stomach. She picked up her keys, got dressed and left.
We will discuss additional facts in our analysis below.
The jury was unable to reach a verdict on count 1, rape of Jane Doe No. 1, and the trial court declared a mistrial on that count. The jury found Thomas guilty of the remaining counts and found the enhancement allegations true.
The court sentenced Thomas to a total prison term of 108 years to life, calculated as follows: on count 3, 25 years to life, doubled to 50 years to life; on counts 4 and 5, 25 years to life each; and on count 2, the upper term of four years, doubled to eight years.
DISCUSSION
I. Sufficiency of evidence of sodomy
Thomas contends that the evidence was not sufficient to support the conviction of sodomy of Jane Doe No. 2. The conviction required proof that Thomas engaged in "sexual conduct consisting of contact between the penis of one person and the anus of another person," and did this "against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." Further, "[a]ny sexual penetration, however slight, is sufficient to complete the crime of sodomy." (§ 286, subds. (a), (c)(2)(A).) Thomas's argument is that the evidence did not prove he penetrated the victim's anus with his penis. We disagree.
When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
In a case in which the judgment rests upon circumstantial evidence, the substantial evidence standard is the same as in other cases (People v. Rodriguez (1999) 20 Cal.4th 1, 11), but there is case law specifically addressing the application of the standard in situations where a judgment may rest on speculative inferences. In People v. Morris (1988) 46 Cal.3d 1, 19-20, overruled on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 544-545, footnotes 5-6, the question was whether substantial evidence supported a finding that a murder was committed with the special circumstance of robbery. The victim was found unclothed, having been shot; he died shortly after the police found him. Three days later, the defendant was found in possession of a credit card the victim had once borrowed from a third party. There was no other evidence of robbery. Our Supreme Court held that the jury could not reasonably infer that the defendant had taken the credit card from the victim by force or fear or that the murder had occurred during the taking. "We may speculate about any number of scenarios that may have occurred on the morning in question. A reasonable inference, however, '"'"'"may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.' ..." [¶] '"'"'"A finding of fact must be an inference drawn from evidence rather than ... a mere speculation as to probabilities without evidence."'"'"'" (People v. Morris, supra, at p. 21.)
The evidence specifically relating to the sodomy charge consisted of the testimony of Jane Doe No. 2 and Thomas. After describing on direct examination how Thomas penetrated her mouth with his penis, put his mouth on her vagina, and penetrated her vagina with his penis, all against her will, Jane Doe No. 2 testified as follows:
"Q. Did he put his penis anywhere else?
"A. I don't remember.
"Q. Do you remember if he had anal sex with you at all?The prosecutor continued this line of questioning a short time later:
"A. I think so, yes.
"Q. So when you say 'I think so,' what do you mean by that?
"A. Um, while I was—he had turned me around, and I just remember being scared, and I don't know—something was happening, but I was just, like, in a different place then.
"Q. Okay. So why do you think that he had anal sex with you?
"A. Because I was sore the next day."
"Q. Now, you can't remember everything about what happened; right?And finally:
"A. Right.
"Q. Are you sure that—what you told us about him making you perform oral sex and having sex with you and anal sex, are you sure that happened?
"A. Yes.
"Q. Why are you sure about that?
"A. Because I remember specifically."
"Q. You said that you thought the defendant had put his penis in your anus because you were sore back there; is that correct?
"A. Yes.
"A. How long did that soreness last?
"A. Like two days.
"Q. Had you ever—was that unusual for you to feel that?
"A. Yes."
On cross-examination, defense counsel asked Jane Doe No. 2 about pain caused by the sex acts:
"Q. Now—I'm sorry. I'm going to ask you some other questions that are going to be uncomfortable in the areas that [the prosecutor] asked you about. But the actual vaginal sex that occurred, was that painful?
"A. Yes.
"Q. And [the prosecutor] asked you about your butt. The anal sex was painful?
"A. Yeah."
The conclusion that Thomas penetrated the victim's anus with his penis thus was derived from two facts: Thomas turned her around after penetrating her mouth and vagina with his penis, and her anus was sore for the following two days. Both counsel asked questions subsequent to this testimony premised on the conclusion that anal intercourse took place, and Jane Doe No. 2 gave affirmative answers, but those questions effectively misstated her testimony. Her testimony was only that she did not remember what happened at that point, but believed anal sex took place because of the two facts just mentioned. The question is whether a reasonable jury could find, beyond a reasonable doubt, that those two facts supported a non-speculative inference that Thomas penetrated her anus, and did so with his penis.
In our view, it is clear the evidence was sufficient to prove Thomas penetrated Jane Doe No. 2's anus with something. In the course of a sexual assault, he turned her back toward him. Her anus was sore for two days afterwards, and anal soreness was not a commonplace sensation for her. Further, she thought the soreness was caused by penetration of her anus by Thomas, indicating that the soreness started around the time of the attack and she had no reason to think anything other than penetration by him was the cause. The inference thus was strong that she was sore because he put something in her anus. But she did not remember that occurrence, and did not claim to have a basis for any belief about what he penetrated it with. Does the evidence as a whole support an inference that the anal penetration, like the oral and vaginal penetration, was accomplished with Thomas's penis, rather than, for instance, his fingers?
People v. Hughes (2002) 27 Cal.4th 287 (Hughes), a capital murder case that included a conviction of forcible sodomy, provides guidance. The victim's anus was dilated and her rectum was bruised, and the injuries were inflicted shortly before the victim's death. There was medical testimony that the injuries were consistent with a blunt object, such as a penis or a finger, but no direct evidence of what the object was. No object that could have caused the injuries was found near the body, and tests for semen and pubic hair revealed none. The defendant conceded that the evidence was sufficient to show penetration of the victim's anus by an object before death, but challenged the sufficiency of the evidence to prove that the object was his penis. (Id. at p. 364.)
Our Supreme Court held that the circumstantial evidence adequately supported the inference of penetration by the defendant's penis:
"In order to conclude that the evidence was legally sufficient, we need not determine that the evidence was strong, and indeed it may be viewed as not strong. But the jury had before it clear evidence of a sexual attack, including expert evidence indicating anal penetration 'consistent with' a penis, shortly before the victim's death. We conclude that this evidence was sufficient to permit a reasonable jury to infer, and find beyond a reasonable doubt, that the penetration was caused by defendant's penis. (Hughes, supra, 27 Cal.4th at p. 365.)
The present case is similar. We are satisfied that the evidence proved penetration of the victim's anus during the attack, but there is no direct evidence of what object penetrated her anus, and the circumstantial evidence on that point is not strong. Yet the surrounding circumstances—a sexual attack during which the defendant penetrated the victim's mouth and vagina with his penis before turning her body so her back was toward him—did support an inference that what happened next—the occurrence that caused the anal soreness—was another act of penetration with his penis. If the comparable inference in Hughes could be found by a reasonable jury to be strong enough to satisfy the reasonable doubt standard, then the evidence was sufficient in this case as well.
Thomas attempts to distinguish Hughes by pointing out that in this case, unlike in Hughes, there was no physical evidence of penetration by any object. This is irrelevant. Jane Doe No. 2's testimony that Thomas turned her around while sexually assaulting her, she had soreness in her anus that began after the attack and lasted days, and penetration by him seemed to be the cause, sufficed to prove he penetrated her anus with some object. It was not necessary that there be physical evidence as well. The significance of Hughes for our purposes is that here, as in Hughes, the circumstantial evidence that the object in question was the defendant's penis was sufficient, even though it was weaker than the evidence of penetration by an object. II. Prior rape evidence
The trial court admitted evidence of Thomas's prior rape pursuant to Evidence Code section 1108, over his objection. After the court ruled the evidence was admissible, defense counsel chose to bring the evidence in by way of Thomas's own testimony, which was as follows:
"Q. Were you convicted in 2008 of rape?
"A. Yes.
"Q. From a 2007 incident?
"A. Yes.
"Q. Did you plead guilty to it?
"A. Yes, I did.
"Q. Where were you at the time?
"A. I was in San Diego.
"Q. And immediately before that happened, where were you?
"A. I was in San Diego in the Pacific Beach area at a local bar.
"Q. And did you come into contact with a woman?
"A. Yes, I did.
"Q. And did you talk to her?
"A. Yeah, we got to know each other through drinks and dancing for, like, an hour or so.
"Q. And at some point at the bar people started to leave the bar?
"A. Yes. And she needed to be walked home, and so I offered to walk her home.
"Q. Were you talking to her as you were walking?
"A. Yes.
"Q. And as you were walking, did you tell her to, 'Get on the ground, I want to have sex with you?
"A. Yes, I did.
"Q. Did you tell her to get on the fucking ground?
"A. I don't remember the exact words, but I think so.
"Q. Did she tell you 'No' and tell you to leave her alone?
"A. Yes, she did.
"Q. Did you grab her and push her on the ground?
"A. Yes.
"Q. Did you start hitting her?
"A. Yes, I did.
"Q. Did you keep hitting her?
"A. Yes. I hit her more than once.
"Q. Did she—did you tell her to shut up? 'Shut the fuck up'?
"A. Yes, I did.
"Q. Did she try to push away from you and you kept hitting her?
"A. Yes.
"Q. Did you hit her repeatedly in the face?
"A. Yes.
"Q. At some point did she stop physically resisting?
"A. Yes, she did.
"Q. Did you rape her?
"A. Yes, I did.
"Q. That was in a sidewalk area?
"A. Yes, it was.
"Q. And did somebody come upon you at the time?
"A. Yes. Someone was randomly skateboarding. It was in the night, like, 2:30 in the morning.
"Q. And did you flee the scene?
"A. Yes, did.
"Q. And that's the incident that you pled guilty to and were convicted of in 2008?
"A. Yes, it is."
Under questioning by the prosecutor, Thomas admitted that before he entered his guilty plea for this prior offense, he claimed he only hit the victim; he did not also rape her. Thomas then conceded he was saying the same about Jane Doe No. 1: he admitted he punched her but denied he raped her.
Thomas now argues that this evidence should have been excluded under the standards applicable to Evidence Code section 1108. Specifically, he contends that the evidence was substantially more prejudicial than probative under Evidence Code section 352 because the circumstances of the prior rape were too dissimilar to circumstances of the current offenses. We review the court's ruling for abuse of discretion. (People v. Cordova (2015) 62 Cal.4th 104, 132.)
Evidence Code section 1108 creates an exception to the prohibition set forth in Evidence Code section 1101 on admission of a defendant's prior bad acts to prove a propensity to commit or character for committing such acts. Evidence Code section 1108, subdivision (a), provides: "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." Evidence Code section 352 requires exclusion of evidence that, in spite of its relevance, is substantially more prejudicial than probative. Thomas's prior rape and all the sex offenses charged in this case were sexual offenses as defined in Evidence Code section 1108. (Evid. Code, § 1108, subd. (d).)
Thomas argues not that his prior rape was not in a class of offenses outside the scope of Evidence Code section 1108, but that it was inadmissible under that statute because it was substantially more prejudicial than probative under Evidence Code section 352. Our Supreme Court has described the factors relevant to a determination of whether Evidence Code section 352 makes a prior sexual offense inadmissible in a sex-offense prosecution:
"In exercising this discretion as to a sexual offense, 'trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.'" (People v. Loy (2011) 52 Cal.4th 46, 61, quoting People v. Falsetta (1999) 21 Cal.4th 903, 917.)
Thomas's position is that his prior rape was inadmissible because it was too dissimilar to the current offenses. Consequently, he maintains, the evidence of that offense both lacked probative value with respect to his propensity to commit the current offenses and was excessively inflammatory.
The trial court did not abuse its discretion in finding the prior offense sufficiently similar. The prior offense was a forcible rape involving a victim's submission to Thomas's unarmed violence after drinking sociably with him. This described the current offenses also, according to the victims' testimony. A greater degree of similarity was not required to make the evidence probative of Thomas's propensity to commit the offenses here charged, and the prior offense was not so much worse than the charged offenses as to make it unduly inflammatory.
We reject Thomas's argument that the prior rape was starkly different because the victim was a stranger and a high level of violence was involved. In the prior rape, Thomas was acquainted with the victim—only less well acquainted than with the victims in this case. In the current case, Thomas used violence—only somewhat less violence (arguably) than in the prior case. It is true that in the prior case, the rape took place outdoors on the street while in this case both attacks happened in Thomas's apartment. It also is true that in this case there were some disputed facts about whether and how much previous physical intimacy there had been between Thomas and the victims in this case, and no similar dispute in the prior case as Thomas described it in his testimony. But these were not significant enough differences to make the evidence inadmissible.
Thomas also argues that there was a danger the jury would be motivated to punish him for the prior offense regardless of his guilt of the current charges. (See, e.g., People v. Harris (1998) 60 Cal.App.4th 727, 738 [finding such danger where jury was not informed that defendant's prior act resulted in rape conviction].) He says this could have happened because the jury would have observed that he was already free in 2014 after having been convicted of rape in 2008. We do not think the trial court was required to find the evidence inadmissible on this basis. The penalty for rape of an adult victim where there are no special circumstances and the defendant has no prior offenses is a prison term of three, six or eight years. (§ 264, subd. (a).) Nothing was presented to the jury that would have suggested Thomas was treated with excessive leniency.
Finally, Thomas raised two constitutional theories challenging the validity of Evidence Code section 1108. First, he contends that the admission of character or propensity evidence as part of the prosecution's proof of guilt deprived him of due process of law. Our Supreme Court rejected this argument as a challenge to Evidence Code section 1108 in Falsetta, supra, 21 Cal.4th at pages 910-922. Thomas acknowledges that we are bound by Falsetta and states that he makes this argument only to preserve it for later review.
Next, Thomas argues that Evidence Code section 1108 deprives criminal defendants of the equal protection of the laws because it treats those charged with sex offenses differently from defendants charged with other crimes. The Court of Appeal rejected the same argument in People v. Fitch (1997) 55 Cal.App.4th 172. The court held that rational basis scrutiny applied to this challenge because no fundamental rights were implicated. Then it held the statute passed rational basis scrutiny because the Legislature could rationally find that sex offenses have a nature distinctive enough, relative to other types of offenses, to justify the admission of relevant prior sex offenses for character or propensity purposes. Further, under rational basis review, the Legislature is entitled to choose for practical reasons to address only one aspect or portion of a problem instead of applying a rule more broadly. (Id. at pp. 184-185.) The Supreme Court cited Fitch with apparent approval in Falsetta, supra, 21 Cal.4th at page 918. We agree with Fitch and with the other Court of Appeal panels that have followed it. (People v. Waples (2000) 79 Cal.App.4th 1389, 1394-1395; People v. Holford (2012) 203 Cal.App.4th 155, 186.)
Thomas maintains that a fundamental right is in question because the statute denies defendants due process of law. Therefore, he says, heightened scrutiny applies instead of rational basis scrutiny, and the statute fails under heightened scrutiny. Because there is no due process violation according to Falsetta, however, this argument cannot succeed.
DISPOSITION
The judgment is affirmed.
/s/_________
SMITH, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.