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,

 Plaintiff and Respondent,

 v.

JEFFREY ANTHONY THOMAS,

 Defendant and Appellant.

B317246

Madera County

Super. Ct. No. MCR050285

 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.

____________________
2

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).) 
3

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 
4

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 
5

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. 
6

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].) 
8

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. 
9

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.