People v. Thomas

Opinion

COMPTON, J.

Defendant Willie Scott Thomas was charged in an information with one count of assault with intent to commit rape upon Carolyn J., a person under the age of 18 years, (Pen. Code, § 220) and one count of inflicting cruel and inhuman corporal punishment on a child. (Pen. Code, § 273d.) In a nonjury trial defendant was

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convicted of violating Penal Code section 273d and acquitted of the assault charge. Two prior felony convictions for rape were alleged and proved. Defendant appeals from the judgment.

The victim, Carolyn, is defendant’s 15-year-old stepdaughter. On November 5, 1975, the victim’s mother entered the hospital leaving Carolyn and her brothers and sisters in the care of the defendant. Late in the evening of November 6, the defendant made sexual advances to Carolyn which she resisted. Defendant then asked Carolyn if she was going to inform her mother about the incident. He told her that if she did he would have to return to prison.

When Carolyn continued to resist defendant’s advances, he picked up a broom and threatened her. He dropped the broom and then struck her repeatedly on the side of the head with his fists, knocking her down. He then began to choke her. She fought back, striking the defendant with a peanut butter jar and hurling a plate at him. During the melee a television set was knocked to the floor and several books were scattered throughout the room.

When the battle was over, Carolyn called her aunt and told her of the incident. The police were summoned. The defendant who had left the house was later apprehended by the police after he climbed from a tree where he had taken refuge.

After the incident, Carolyn was extremely upset, her left eye was “terribly swollen” and reddened, her lower lip was cut and swollen and her neck was scratched from the choking.

Defendant contended that on the evening of the incident he and Carolyn argued about her failure to clean the house as he had directed. According to defendant, Carolyn became angiy and struck at him with her fists, kicked and eventually threw a peanut butter jar at him. Defendant responded by hitting her with the back of his hand once. When Carolyn threw a plate at him, defendant slapped her with his open palm. He then left the house because he was afraid that his parole would be violated.