People v. Thomas

• Decision Date: 18 January 2007
• Docket Number: No. A111109.,A111109.
• Citation: 53 Cal.Rptr.3d 473,146 Cal.App.4th 1278
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry THOMAS, Defendant and Appellant.

53 Cal.Rptr.3d 473

146 Cal.App.4th 1278

The PEOPLE, Plaintiff and Respondent, v. Larry THOMAS, Defendant and Appellant.

No. A111109.

Court of Appeal, First District, Division 5.

January 18, 2007.

Certified for Partial Publication.^*

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Jamie Michele Weyand, Deputy Attorney General, for Plaintiff and Respondent.

Solomon Wollack under appointment by the Court of Appeal, for Defendant and Appellant.

GEMELLO, J.

Larry Thomas appeals from his convictions for sexual offenses against four minors. Defendant contends that the trial court erred in failing to sua sponte instruct the jury on Penal Code section 302, subdivision (g), a statutory provision extending the limitations period for three counts of forcible sodomy.

In the published part of our opinion, we hold that where the information alleges facts that avoid the statute of limitations bar, defendant must raise the limitations issue in the trial court or it is forfeited. As to defendant's other contentions, we hold that the trial court was not required to submit the limitations extension issue to the jury under Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (Apprendi). We also hold that battery is a lesser included offense of lewd acts. In the unpublished part of our opinion we hold that there was substantial evidence to support the "substantial sexual conduct" allegation as to count three. We reverse the judgment of conviction on one lewd act count, affirm the remainder of the judgment, and remand.

Procedural Background

The Alameda County District Attorney filed an information in January 2004 charging defendant with fourteen sex offenses against four minors. The charges included one count of sodomy of Andre Doe (Pen.Code, § 286, subd. (c)(1); count one);¹ four counts of lewd acts on Andre Doe (§ 288, subds.(a) & (c)(1); counts two through five); four counts of lewd acts on Delmont Doe (§ 288, subd. (e)(1); counts six through nine); two counts of lewd acts on Joseph Doe (§ 288, subd. (c)(1); counts ten and eleven); and three counts of forcible sodomy of Keith Doe (Pen.Code, § 286, subd. (c)(2); counts twelve through fourteen). With respect to the three counts of forcible sodomy of Keith Doe, the information alleged extension of the statute of limitations under section 803, subdivision (g).

A jury found defendant guilty of counts one through three (sodomy of Andre and two counts of lewd acts on Andre); six, eight, and nine (lewd acts on Delmont); and eleven through fourteen (one count of lewd acts on Joseph and the three counts of sodomy of Keith). The trial court found true multiple victim and substantial sexual conduct allegations associated with a number of the counts. The court sentenced defendant to a determinate prison term of 14 years eight months, followed by an indeterminate term of 15 years to life.

Defendant appeals the convictions on counts three, eight, nine, and eleven through fourteen.

Factual Background

Testimony of Keith Doe

Keith Doe was the victim in counts twelve through fourteen, which occurred between September 1993 and September 1994.

From the time Keith was five or six years old, defendant helped raise him because his mother was in a residential drug treatment facility and his father was in prison. For about a year and a half, Keith lived with his grandmother but stayed with defendant on weekends and he occasionally stayed for weeks at a time. Keith continued to visit defendant until he was in high school. Beginning a few weeks after Keith started spending nights at defendant's house, defendant raped Keith regularly on weekends for two or three years. Keith waited until defendant was in jail to tell his mother about the rapes because he was afraid that defendant might hurt him.

Testimony of Andre Doe

Andre Doe was the victim in counts one through three, which occurred in July and August 2001. Andre testified that when he was in elementary school he met defendant through Keith. At that time, Andre lived in a foster home around the corner from defendant's home. The summer before he started eighth grade, Andre moved in with defendant at defendant's suggestion. Keith came over nearly every weekend and the two other victims named in the information, Joseph and Delmont, also came over and occasionally spent the night.

Defendant raped Andre during Andre's first week in defendant's home when Andre had fallen asleep in defendant's bed after watching a movie. About two weeks after the rape, defendant called Andre into his bedroom and raped Andre again. About one week later, defendant rubbed his penis between Andre's inner thighs and ejaculated.

Testimony of Belmont Doe

Delmont Doe was the victim in counts six, eight, and nine, which occurred between December 2002 and March 2003. Delmont testified that when he was in the ninth grade he sometimes went to defendant's house to play with Andre. Once during a game of hide-and-seek, defendant approached Delmont and touched his bare chest for about five minutes. Another time, Delmont was asleep in the computer room when defendant climbed in bed with him and began touching his penis and his buttocks under his underwear. On a third occasion, defendant approached Delmont as he exited the bathroom in the middle of the night and touched Delmont's "private parts" underneath his underwear. On a fourth occasion around March 2003, defendant approached Delmont as he played video games in the basement. Defendant touched Delmont's shoulder and Delmont, who did not want defendant to touch him, moved away.

Testimony of Joseph Doe

Joseph Doe was the victim in count eleven, which occurred in May 2003. Joseph testified that he met defendant through Andre when he was in the seventh grade. Once, when Joseph was playing video games at defendant's house, defendant rubbed Joseph's inner thigh with his hand. That same day, while Joseph washed dishes after dinner, defendant grabbed his buttocks and said "nice ass."

Expert Testimony

A licensed clinical social worker testified about child sexual abuse accommodation syndrome, in order to dispel myths about the way a victim of child sexual abuse might be expected to behave.

Defense Case

In interviews with the police, defendant denied touching the victims in a sexual manner.

The defense attempted to discredit the victims' testimony. The defense presented testimony that Andre had failed to report the rape in the past and that Andre had behavioral problems. Delmont admitted that when he gave a statement to the police he described only two of the four incidents he described at trial.

Another boy who spent time with defendant, DeAndre, testified that defendant never touched him inappropriately and that Andre encouraged him to lie about defendant.

Discussion

I. Extension of the Statute of Limitations

The crime of forcible sodomy (section 286, subd. (c)(2)) is subject to a six-year statute of limitations. (§ 800.) In January 2004, when the information was filed, section 803, subdivision (g) allowed the prosecution of specified sexual offenses against minors to be commenced within one year after the victim reports the crime to the police, even though the statute of limitations has otherwise expired, provided that "[t]he crime involved substantial sexual conduct" and there is "independent evidence [that] clearly and convincingly corroborate] the victim's allegation."²

The information charged defendant with three counts of forcible sodomy of Keith, occurring in 1993 and 1994. As to each count, the information alleged that "pursuant to Penal Code section 803(G) ... the statute of limitations has been extended." Defendant contends that the trial court erred in failing to instruct the jury to make the factual determinations necessary to extend the limitations period under section 803, subdivision (g). We disagree.

A. Right to Jury Trial Under Apprendi and its Progeny

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435, the United States Supreme Court held, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Defendant contends that the applicability of section 803, subdivision (g) had to be submitted to the jury because extension of the statute of limitations subjected him to punishment where it otherwise would have been barred.

The Apprendi rule is based on the criminal defendant's well-established entitlement to "`a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" (Apprendi supra, 530 U.S. at p. 477, 120 S.Ct. 2348, quoting United States v. Gaudin (1995) 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444.) For purposes of this rule, the Court rejected a distinction between elements and sentencing factors. (Apprendi at p. 494, 120 S.Ct. 2348.) A sentencing factor which ascribes greater criminal culpability to a defendant's conduct "has significant implications both for a defendant's very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment." Id. at p. 495, 120 S.Ct. 2348.) As explained in People v. Betts (2005) 34 Cal.4th 1039, 1054, 23 Cal.Rptr.3d 138,103 P.3d 883, "[a] fact that increases the maximum permissible punishment for a crime is the functional equivalent of an element of the crime, regardless whether that fact is defined by state law as an element of the crime or as a sentencing factor."

Defendant's contention that the section 803, subdivision (g) limitations extension finding is an element or the "functional equivalent" of an element under Apprendi supra, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 was...