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Filed 4/29/15 P. v. Lewis CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Butte) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

THOMAS LEE LEWIS, SR., 

 Defendant and Appellant. 

C076108 

(Super. Ct. No. CM038184) 

After a trial to the court, defendant Thomas Lee Lewis challenges the trial court 

finding him guilty of committing a lewd act on a child under 14. Defendant claims 

admission of the victim’s out-of-court statements violated his rights under the Sixth 

Amendment’s confrontation clause, and the erroneous admission of those statements 

prejudiced him in two ways. He first contends that without the victim’s statements in 

evidence, his out-of-court inculpatory statements should not have been admitted because 

the evidence offered by the prosecution was otherwise insufficient to establish the 

required corpus delicti. He then contends that even if his inculpatory statements were 
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admissible, his conviction was improper because those statements, without an established 

corpus delicti, were an insufficient basis for his conviction. Because we conclude that 

defendant’s inculpatory statements were properly admitted into evidence and that the 

record contains sufficient independent evidence to establish the corpus delicti of the 

crime charged even without the victim’s statements, we find no prejudicial error and 

affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 In March 2013, the then three-year-old J. R. stopped attending Grandma Linda’s 

Day Care where she had been going five days a week for a year and one-half. The adults 

generally present at the day care were defendant, his wife Linda, and his mother-in-law. 

J. R. stopped attending Grandma Linda’s Day Care because, according to her mother, 

Pearl, J. R. came home one day and told Pearl that she had been “touched 

[i]nappropriately” and that “something bad had happened to her at Grandma Linda’s.” 

Pearl went to the Valley Oaks licensing department the next day and made a complaint. 

Shortly thereafter, Butte County Sheriff’s Detective Christopher D’Amato became 

involved with the investigation. Detective D’Amato contacted Pearl to arrange a forensic 

interview of J. R. A forensic interview is a nonconfrontational interview of an alleged 

child victim conducted by a specially trained Department of Children’s Services 

employee. According to Detective D’Amato, the “prime focus” of the interview is to 

provide information for law enforcement. During the interview, J. R. told the interviewer 

that defendant had pulled down her underpants, licked her vagina, and told her not to tell 

anyone. Detective D’Amato and the prosecuting attorney, Stacy Edwards, watched the 

interview from a separate room. The interviewer took several breaks during which 

Detective D’Amato and Edwards suggested questions. The recording of the interview 

was turned over to the Butte County Sheriff’s Department. 

Detective D’Amato then called defendant and arranged to meet at the Sheriff’s 

Department. Detective D’Amato began the conversation by telling defendant that he was 
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not in trouble, under arrest, or being detained, and that he was free to leave. Defendant 

denied inappropriately touching J. R. until Detective D’Amato rubbed defendant’s mouth 

with a buccal swab, left the room for approximately one-half hour, and returned, asking 

defendant to “tell [him] how [defendant’s] DNA ended up on [J. R.]” Although 

defendant initially continued to deny touching J. R. inappropriately, he eventually told 

Detective D’Amato that “[s]he pulled down her pants and I licked [her vagina] for her. 

That’s what she wanted.” He denied any further wrongdoing. At the end of the 

interview, defendant was placed under arrest. The recording of this conversation was 

also turned over to the Butte County Sheriff’s Department. Defendant was charged 

with committing a lewd act upon a child. Defendant pled not guilty and waived his right 

to a jury trial. At the bench trial, J. R. briefly took the witness stand and was found 

incompetent to testify due to her age. The trial court allowed the prosecutor to play the 

video of J. R.’s forensic interview over defendant’s Sixth Amendment objection. The 

trial court also allowed the prosecutor to play the video of defendant’s interview with 

Detective D’Amato over defendant’s objections that his statements were not a confession 

as required by Evidence Code section 1228 and that the People had not established the 

corpus delicti required before defendant’s statements could be used as the basis for a 

conviction. The trial court overruled all of defendant’s objections. 

The court then found defendant guilty of the crime charged. Defendant was 

sentenced to six years in prison. This appeal followed. 

DISCUSSION 

Defendant contends his conviction must be reversed because he was prejudiced by 

the trial court’s admission in evidence of J. R.’s statements from the forensic interview. 

He alleges that this impacted his trial in two ways, both of which were prejudicial. His 

first argument is that because J. R.’s statements were inadmissible due to the 

confrontation clause, his own inculpatory statements were inadmissible because, without 

J. R.’s statements, the People could not establish the corpus delicti of the crime charged. 
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He claims that this prejudiced him because “[w]ithout the[se] statements . . . , the 

prosecution could not have proven that [defendant] committed the crime beyond a 

reasonable doubt.” He next argues that, even if his inculpatory statements were 

admissible without an established corpus delicti, “the statements could not form the basis 

of [his] conviction because[, absent J. R.’s statements,] there was a lack of independent 

evidence to satisfy the corpus delicti rule,” which “prohibits conviction where the only 

evidence that the crime was committed is the defendant’s own [out-of-court] statements” 

(People v. Alvarez (2002) 27 Cal.4th 1161, 1180) and, therefore, he was necessarily 

prejudiced by the admission of J. R.’s statements. 

 While we conclude that defendant’s statements were admissible regardless of 

whether the corpus delicti was established, we also conclude that the record contains 

sufficient independent evidence to establish the corpus delicti here. For that reason, we 

find no prejudicial error and affirm. 

I 

Although The Sixth Amendment Precluded The Admission Into Evidence 

Of J. R.’s Statements, Defendant’s Statements Were Nevertheless Admissible 

Evidence Code section 1228 purports to allow courts to admit into evidence the 

out-of-court statement of an alleged child victim, even though the statement may 

otherwise be hearsay, “for the purpose of establishing the elements of the crime in order 

to admit as evidence the confession of a person accused of [committing, among other 

things, lewd or lascivious acts on a child under 14].” Defendant contends and the People 

agree that the trial court erred by admitting J. R.’s statements into evidence pursuant to 

Evidence Code section 1228 because that admission violated his rights under the 

confrontation clause. Defendant contends that because J. R.’s statements were 

inadmissible, there is insufficient independent evidence of the corpus delicti and, 

therefore, his inculpatory statements were inadmissible. 
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We agree with both parties that J. R.’s statements were inadmissible. “In all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him . . . .” (U.S. Const., 6th Amend.) Through this clause, the Sixth 

Amendment bars the admission into evidence “of testimonial statements of a witness . . . 

unless [the witness] was unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 53-54 

[158 L.Ed.2d 177, 194].) “[Statements] are testimonial when the circumstances 

objectively indicate that there is no . . . ongoing emergency, and that the primary purpose 

of the interrogation is to establish or prove past events potentially relevant to later 

criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822 [165 L.Ed.2d 

224, 237].) This prohibition applies even where the testimonial statements are said to be 

admissible under a state law exception to the hearsay rule, (Crawford, at pp. 61-62 [158 

L.Ed.2d at p. 199]) such as Evidence Code section 1228. Because J. R.’s statements were 

testimonial and defendant did not have a prior opportunity for cross-examination, 

admission of those statements violated Crawford. 

 But it does not follow that just because J. R.’s statements were inadmissible, so 

were defendant’s. It was once true that “defendant’s extrajudicial statements [would] 

have been deemed inadmissible over a corpus delicti objection absent some independent 

evidence of the crime to which the statements relate . . . .” (People v. Alvarez, supra, 27 

Cal.4th at p. 1170.) “Because[, however,] of the adoption of [the right to truth-inevidence rule, which states that relevant evidence shall not be excluded in any criminal 

proceeding (Cal. Const., art. I, § 28, subd. (f)(2))], there no longer exists a trial objection 

to the admission in evidence of the defendant’s out-of-court statements on grounds that 

independent proof of the corpus delicti is lacking.” (Alvarez, at p. 1180.) For this reason, 

even if the People had failed to establish the corpus delicti because J. R.’s statements 

should not have been admitted, defendant’s objection to the admission in evidence of his 

inculpatory statements was without merit. His statements were admissible in any event. 
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II 

The Corpus Delicti Has Been Satisfactorily Established 

 “[T]he corpus delicti of a crime is (1) the fact of the . . . harm, and (2) the 

existence of a criminal agency as its cause.” (People v. Dorsey (1974) 43 Cal.App.3d 

953, 961.) These elements may be established by “circumstantial evidence” and by only 

“[a] slight or prima facie showing, permitting the reasonable inference that a crime was 

committed . . . .” (People v. Alcala (1984) 36 Cal.3d 604, 624-625, superseded by statute 

on other grounds, as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911.) 

Defendant points to two cases to support his argument that there was no sufficient 

evidence to satisfy the corpus delicti rule except J. R.’s inadmissible statements. The first 

is People v. Herrera (2006) 136 Cal.App.4th 1191. In Herrera, the defendant was 

arrested for stealing a large amount of pseudoephedrine pills and charged with conspiracy 

to manufacture methamphetamine. (Id. at pp. 1195-1196.) The defendant admitted to the 

investigating detective that he sold the pills to someone who used them to make 

methamphetamine. (Id. at p. 1196.) No methamphetamine producing equipment was 

found in the defendant’s home. (Ibid.) The defendant appealed the trial court’s decision 

to deny his motion to dismiss the conspiracy charge arguing that, absent his own 

statement about his coconspirator, there was insufficient independent evidence to 

establish the corpus delicti of a conspiracy charge. (Id. at pp. 1196-1197.) In response, 

the People argued that the large quantity of pills combined with the nonexistence of a 

methamphetamine lab in the defendant’s residence “ ‘support[ed] an inference that [the 

defendant] conspired with at least one other person to manufacture methamphetamine.’ ” 

(Id. at pp. 1204-1205.) The Third Division of the Fourth District rejected the People’s 

argument and granted the motion to dismiss because “ ‘ “ ‘ “ [a] legal inference cannot 

flow from the nonexistence of a fact; it can be drawn only from a fact actually 
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established.” ’ ” ’ ” (Id. at p. 1205.) Because the People were therefore unable to rely on 

the nonexistence of a methamphetamine lab, there was absolutely no evidence other than 

the defendant’s own out-of-court statements that he was engaged in a conspiracy. This 

case is no help to defendant because the record contains independent evidence 

establishing corpus delicti of the crime. 

Similarly, in People v. Powers-Monachello (2010) 189 Cal.App.4th 400, the 

second case defendant cites, the reviewing court found a complete lack of evidence, other 

than the defendants’ out-of-court statements, to support a reasonable inference that a 

conspiracy existed. The People offered a list of ten “ ‘overt acts’ ” that they claimed 

established the corpus delicti of conspiratorial intent. (Id. at pp. 410-411.) The Second 

Division of the First District disagreed, concluding that while “[t]he permissible evidence 

. . . show[ed] an association between the defendants, [it showed] no agreement to do 

more than store a safe . . . . [T]his record contain[ed] no evidence of any overt act . . . in 

furtherance of a common [criminal] purpose. . . .” (Id. at p. 418.) “ ‘ “Mere association 

does not make a conspiracy.” ’ [Citation.] [S]imply knowing that a person’s products or 

services are being used for a criminal purpose is insufficient.” (Id. at p. 419.) Like 

Herrera, Powers-Monachello features a complete lack of independent evidence to 

support a conspiracy charge. In both cases, the courts found nothing in the record, absent 

the defendants’ out-of-court statements, to establish the corpus delicti of the crime. 

 Here, even without J. R.’s statements, the record still contains enough evidence to 

establish the corpus delicti of the crime charged. J. R.’s mother testified to several facts 

that, taken together, are sufficient to make the “slight . . . showing” needed. (People v. 

Alcala, supra, 36 Cal.3d at p. 624.) She testified that J. R. had attended Grandma Linda’s 

Day Care and that defendant lived there. She went on to say, without objection, that J. R. 

no longer attended day care there because J. R. came to her and told her that she had been 

“touched [i]nappropriately” and that “something bad had happened to her at Grandma 

Linda’s.” This testimony is sufficient to “permit[ a] reasonable inference” (id. at pp. 624-
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625) that J. R. was harmed and that this harm was due to a criminal agency (People v. 

Dorsey, supra, 43 Cal.App.3d at p. 961). Therefore, the corpus delicti was established 

and defendant’s inculpatory statements were properly considered “to strengthen the case 

on all issues.” (People v. Alvarez, supra, 27 Cal.4th at p. 1181.) 

III 

The Trial Court’s Error In Admitting J. R.’s Statements Was Harmless 

 Defendant is correct that where “there [i]s a lack of independent evidence to 

satisfy the corpus delicti rule,” a defendant’s incriminating statements “[cannot] form the 

basis of [a] conviction.” The right to truth-in-evidence rule, discussed above, “did not 

eliminate the independent-proof rule insofar as [it] prohibits conviction where the only 

evidence that the crime was committed is the defendant’s own statements outside of 

court.” (People v. Alvarez, supra, 27 Cal.4th at p. 1180.) 

Defendant contends that because the “erroneous admission of [J. R.’s] statement[s] 

. . . violated [his] rights under the federal Constitution . . . , the standard of prejudice in 

Chapman v. California (1967) 386 U.S. 18, 24, applies.” We agree. “Confrontation 

clause violations are subject to federal harmless-error analysis under Chapman . . . 

[which] asks: ‘Is it clear beyond a reasonable doubt that a rational [finder of fact] would 

have found the defendant guilty absent the error?’ ” (People v. Geier (2007) 41 Cal.4th 

555, 608, overruled on another ground in Melendez-Diaz v. Massachusetts (2009) 557 

U.S. 305 [174 L.Ed.2d 314].) Defendant argues that the People cannot show 

harmlessness here because, absent the erroneous admission of J. R.’s statements, the 

corpus delicti has not been proven. However, because we have concluded the corpus 

delicti requirement was satisfied even without considering J. R.’s statements, their 

admission was harmless beyond a reasonable doubt. 

DISPOSITION 

 The judgment is affirmed. 
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 ROBIE , Acting P. J. 

We concur: 

 BUTZ , J. 

 HOCH , J.