People v. Thomas

• Decision Date: 27 April 2021
• Docket Number: C090172
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Rebecca THOMAS, Defendant and Appellant.

63 Cal.App.5th 612

277 Cal.Rptr.3d 818

The PEOPLE, Plaintiff and Respondent,

v.Rebecca THOMAS, Defendant and Appellant.

C090172

Court of Appeal, Third District, California.

Filed April 27, 2021

Certified for Partial Publication.^*

Randy S. Kravis, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Eric L. Christoffersen and Christopher J. Rench, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, J. Defendant Rebecca Thomas lived with her boyfriend codefendant Taylor Montgomery-Gutzman and her 22-month-old twins K. and B. In the late afternoon and early evening hours of October 13, 2016, while defendant was out trying to buy heroin, K. stopped breathing and ultimately died. An autopsy of K. revealed he was strangled to death. B. also exhibited signs of distress and, upon a physical examination, it was revealed B. suffered from extensive internal injuries. Most of B.’s injuries were recently inflicted but some were several weeks old.

Defendant and Montgomery-Gutzman were tried together for the murder of K. and abuse of B. Defendant claimed Montgomery-Gutzman inflicted all the injuries and she was unaware of his treatment of the twins. Montgomery-Gutzman claimed defendant was responsible. In his effort to show defendant was responsible, Montgomery-Gutzman introduced evidence defendant had a propensity to commit child abuse. Over defendant's objection, the court admitted propensity evidence and instructed the jury it could use the propensity evidence to raise a reasonable doubt as to Montgomery-Gutzman's guilt. In the published portion of this opinion, we conclude the trial court did not err by admitting propensity evidence nor did it confusingly instruct the jury on how it could consider the evidence.

In the unpublished portion of this opinion, we reject defendant's remaining instructional error claims and her ineffective assistance of counsel claim regarding her attorney's performance at sentencing. We agree, however, that defendant's abstract of judgment must be corrected to accurately reflect the trial court waived the court security fee and criminal conviction assessment. Thus, we affirm defendant's convictions for the second degree murder of K., for assault with force likely to cause great bodily injury of K., and for permitting both K. and B. to suffer unjustifiable physical pain and mental suffering, which she willfully caused or permitted as to K. that resulted in his death.

FACTUAL AND PROCEDURAL HISTORY

I

Facts Underlying The Crimes

Defendant hated children and never wanted to have them. Despite that fact, defendant had several children and a history of involvement with child protective services. Her first interaction with child protective services occurred in 2004 when defendant's oldest child was three weeks old and defendant told a friend not to comfort the infant when he cried because defendant did not want him to be spoiled. Soon thereafter, defendant called the same friend and told her the baby was not having a good day, and he was crying uncontrollably. Defendant said she had "already tried killing the kid; I strangled him until he stopped breathing." Defendant's friend reported the incident to child protective services. The report was determined to be unfounded and defendant was given information about a crisis nursery and family resource center. Defendant's oldest child went to live with defendant's parents at six months old and continued to do so, except for a year when he was five years old. While the living arrangement was prompted by child protective services, there was no official order requiring defendant's oldest child to live with defendant's parents.

Defendant's second child was born eight years after her first. At that point, defendant had a methamphetamine and heroin addiction

, as did the father of defendant's second child. The two were violent with each other, and their child never lived with them. Instead, the child lived with defendant's parents. In the years that followed, their child sometimes stayed with defendant overnight, but defendant's parents raised the child.

Sometime after her second child was born, defendant stopped doing drugs, except for marijuana and prescription methadone

. While taking methadone, she became pregnant with twin boys, K. and B. The twins were born eight weeks premature and tested positive for methadone and marijuana at birth but did not suffer from withdrawals. Unrelated to their positive drug tests, both K. and B. had breathing issues due to their premature lungs. Further, their intestines were premature, requiring them to be fed through a gastric tube. K. and B. remained in the hospital for four months because they had trouble eating by mouth and eating and breathing simultaneously. They also suffered from apnea prematurity, which meant they did not always remember to breathe, but outgrew that condition before being discharged.

Although the twins progressed in the hospital, they each required insertion of a gastric tube directly into their stomachs for nutrition. Defendant was often hard to contact during the twins’ hospital stay, but she was trained on how to feed the twins via the gastric tube before their release. Upon discharge, defendant was told not to orally feed the twins and to only use the gastric tube. She was given a feeding schedule and a pump to deliver their meals through the gastric tube slowly over time.

If their meals were delivered too quickly, the twins were in danger of vomiting, thus failing to receive their required nutrition. During feedings, it was required that someone be attentive to the twins throughout the process. Defendant was offered the assistance of a home nurse because feeding two infants with a gastric tube was difficult. Defendant declined the assistance of a nurse.

Two days after the twins were released, defendant rushed B. back to the hospital because he was having trouble breathing. He was admitted to the hospital for several weeks. During the admission process, defendant was seen feeding K. with a bottle in an elevator. Child protective services intervened and took the twins from defendant's care. The twins were placed back in her care six months later. After the twins returned to defendant's custody, she lived with them and her older children at her parents’ home.

When the twins were nearly a year and one-half old, defendant moved from her parents’ home and into an apartment complex where Montgomery-Gutzman lived. Montgomery-Gutzman was in his early 20's, nine years younger than defendant, and did not have children of his own. He lived with friends and defendant often saw him playing with children who lived in the apartment complex. He appeared kind and gentle with them, and the children appeared to like him. After a short time of being neighbors, Montgomery-Gutzman moved in with defendant. Their relationship was somewhat romantic. Defendant had sexual intercourse with Montgomery-Gutzman two or three times during their entire relationship and thought of him as more of a roommate.

Indeed, defendant used Montgomery-Gutzman predominantly for childcare. He was "helpful" and "obedient," appeared "calm" and "soft," but "evasive." He did anything defendant needed him to do, including watching the twins when she ran errands. Defendant jokingly described Montgomery-Gutzman as her babysitter to several friends. She further said she was with Montgomery-Gutzman only out of convenience because he watched her children. Defendant said having Montgomery-Gutzman around allowed her to come and go as she pleased. Defendant acted "rude" and "mean" toward her children and was not a comforting mother. Defendant gave the impression that K. and B. were an inconvenience to her.

Montgomery-Gutzman smoked marijuana and purported to suffer from various mental health conditions requiring medication. While he had used heroin before moving in with defendant, Montgomery-Gutzman's use increased and he began taking the drug intravenously with defendant.

Shortly after Montgomery-Gutzman and defendant moved in together, B. was rushed to the hospital again for breathing issues. He stayed in the hospital for a month where he had more breathing issues, so a tracheotomy

was inserted to help him breathe. B.’s breathing issues were due to a floppy airway that did not always stay open to provide adequate support for breathing and eating. Montgomery-Gutzman visited B. in the hospital and learned from defendant how to care for and clean B.’s tracheotomy. When B. was released from the hospital, defendant accepted the assistance of a home nurse, who came to the house every weekday for multiple hours to assist with B.’s care. Because of the tracheotomy, B.’s breathing was audible and raspy sounding. It annoyed defendant to hear B. breathing and to clean his tracheotomy.

By the time the twins were 22 months old, defendant, the twins, and Montgomery-Gutzman had moved to a new apartment.

While he still required a gastric tube, K. put on quite a bit of weight and was bigger than his brother. He held most, if not all, of his food down and was active and able to walk. B. was not thriving to the same degree as K. B. continued his nutrition via his gastric tube and would often vomit after feedings. Defendant usually fed B. by manually injecting nutrition into his gastric tube over a short amount of time, while the home nurse devoted to B.’s care, fed him through a machine that would deliver nutrition slowly. B. could not walk or talk and always appeared low in energy, although happy. The twins would play and climb on each other.

While living in the new apartment, defendant occasionally used methamphetamine with the apartment manager, sometimes after sneaking out of the apartment in the middle of the night. She lost weight, leading defendant's mother to suspect defendant was using...