California Court of Appeal Oct 28, 2021 No. E075317Unpublished
Filed 10/28/21 P. v. Mabe CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075317
v. (Super.Ct.No. INF1600509)
THOMAS DEAN MABE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark E. Johnson, Judge.
Affirmed, as modified, in part, reversed in part, and remanded with directions.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Senior Assistant Attorney General, and Arlene A. Sevidal and
Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.
Around 3:30 a.m., defendant Thomas Dean Mabe broke into a condominium in
which a husband and wife were sleeping. He awoke them by orally copulating the
husband and groping the wife. As the wife called 911, defendant kept asking the
husband, “[W]he don’t you let me give you another head job?” After defendant was
arrested, handcuffed, and placed a patrol car, he said to a police officer, “Let me suck
your dick.”
As a result, defendant was convicted on six counts, including assault during a first
degree burglary with the intent to commit oral copulation. (§ 220, subd. (b).)1
Defendant contends:
(1) The trial court erred by admitting evidence that defendant had previously
committed attempted sexual battery and child annoyance.
(2) The trial court erred by admitting jailhouse phone calls in which defendant’s
lover urged him to act “crazy.”
(3) There was insufficient evidence of unlawful restraint to support defendant’s
conviction for felony sexual battery. (§ 243.4, subd. (a).)
(4) There was insufficient evidence of circumstances likely to produce great
bodily harm or death to support defendant’s convictions for felony elder abuse (§ 368,
subd. (b)(1)); or, in the alternative, the trial court erred by failing to instruct on the lesser
included offense of misdemeanor elder abuse. (§ 368, subd. (c).)
We will hold that defendant’s prior sexual offenses were similar enough to the
charged offenses to be relevant and admissible as evidence of both intent (Evid. Code,
1 This and all further statutory citations are to the Penal Code, unless otherwise specified.
2
§ 1101, subd. (b)) and propensity (Evid. Code, § 1108); moreover, they were not unduly
prejudicial. We will further hold that defendant’s apparent agreement with his lover’s
suggestion that he act crazy was relevant and admissible to show consciousness of guilt.
We agree, however, with defendant’s contention that there was insufficient
evidence to support his convictions for felony sexual battery and felony elder abuse. We
will reduce these convictions to misdemeanor sexual battery and misdemeanor elder
abuse, respectively, and remand for resentencing.
I
STATEMENT OF FACTS
A. Prosecution Evidence.
Spouses John and Jane Doe2 lived in a ground-floor condo in a gated country club
community in Palm Springs. John was 71; Jane was 69.3
On the night of April 20-21, 2016, they were at home, asleep in the master
bedroom. All the doors and windows were locked. John was lying on his side, in the
nude.
Around 3:30 a.m., a man standing by the side of the bed turned John over onto his
back and started to orally copulate him. John assumed it was his wife. He reached
toward the person and felt an erect penis and testicles.
2 The trial court ordered that the victims be referred to in the record by these fictitious names. (See § 293.5.) 3 The trial court observed for the record that, at trial, the Does “look[ed] like folks in their 70s.”
3
The man lay across John’s chest and grabbed Jane’s breast and “pubic area” in an
“incredibly aggressive and invasive” manner. Then he grabbed her chin in a “rough” and
“strong” manner. She assumed it was her husband. She said, “[N]ot so rough.” “What
the hell are you doing?”
John pushed the man away and got up. Jane turned on a light. John and Jane both
later identified the person they saw as defendant. Defendant was six feet six inches tall.
He was wearing a shirt, pulled back over his head, but with his arms in the sleeves. He
was naked from the waist down.
Both John and Jane asked who he was and what he was doing there. Defendant
gave his true name. He said he had come in through the front door. “You sent me a
key,” he asserted. He also said he was John’s brother.
Jane ran into the kitchen and called 911. Meanwhile, defendant got dressed. He
wandered toward the spare bedroom, then back to the master bedroom. As he did so, he
kept “propositioning” John, saying, “[W]ould you like a blow job?” “You know you love
it.”
Defendant went into the dining room, where he sat in a chair, then sat on the floor.
He had been calm, but he became “agitated” because Jane was screaming on the phone.
He told her, “[Q]uit yelling, quit screaming.” He “walked quickly” into the kitchen,
came up behind her, and grabbed her “[r]oughly and firmly by the shoulders.” Jane
“didn’t know if he was going to rape [her] or kill [her].” John “was fearful for [his]
wife,” so he pulled defendant away and punched him once in the head.
4
Just then, the police came in and arrested defendant. He was compliant. Three
police officers each testified that defendant did not show any signs of being under the
influence of drugs. He did not tell anyone that he was high on methamphetamine. He
specifically told one officer that had not used methamphetamine.
As defendant was sitting in a patrol car, handcuffed, he said to an officer, “Let me
suck your dick. Come on. No one will see. Turn off all of the lights.”
Later, John and Jane found that the screen had been removed from the sliding
glass door separating their spare bedroom from a patio outside. The screen had also been
removed from a living room window; that window had been opened and was the apparent
entry point. On the patio, there were two red curtains and a stained pair of men’s
underwear.
B. Prior Sexual Offenses.
1. Rachel D.: Attempted sexual battery.
Rachel D.4 was homeless. She admitted one prior conviction for commercial
burglary and two prior convictions for using someone else’s checks.
On March 1, 2016, sometime before dawn, she was sitting outside a Circle K in
Palm Springs. Defendant approached her. He was wearing a tank top, briefs, and polka
dot socks. He was rubbing his penis over the briefs.
4 Although Rachel D. testified under her full name, we accord her protective nondisclosure. (Cal. Rules of Court, rule 8.90(b)(4).)
5
“[H]e was saying a lot of really vulgar stuff and grabbing other women.” He told
Rachel several times that “he wanted to eat [her] pussy.” He tried to grab her “behind”
and her breasts.5 She told him to leave her alone, but he kept rubbing himself. When
another woman walked by, defendant grabbed that woman’s “behind.” About seven
minutes after defendant first showed up, Rachel left.
By coincidence, Rachel and defendant were each arrested later that day.
(Defendant’s arrest was for his second prior sexual offense; see part I.B.2, post.) They
were placed in cells across from each other. Defendant yelled that “he was going to fuck
[her] and he was going to bend [her] over and he wanted to eat [her] pussy.”
2. Lotus: Child annoyance.
Lotus6 was 16 and going to high school in Palm Springs. On March 1, 2016, at
7:15 a.m., as she started walking to school, defendant came out from the gate of a nearby
house and started following her.
After defendant had been following Lotus for about three minutes, just as the
street went over a bridge, he started to speed up. She tried to speed up, too, but he caught
up with her. He asked how old she was; she said 16. He tried to grab her arm. He said,
“If you were 18, I would hit that.”
5 In her statement to the police, Rachel had not mentioned that defendant tried to grab her. 6 The trial court ordered that Lotus’s last name be redacted from the record.
6
Lotus ran out into the street and tried to get the attention of passing drivers. One
driver pulled over. He said he had seen “the guy” following her and trying to grab her.
He offered to drive her to school; she accepted. When she got to school, the police were
called.
The driver who picked Lotus up corroborated her testimony. However, he did not
see defendant “touch” Lotus.
As a result of this incident, defendant pleaded guilty to child annoyance. (§ 647.6,
subd. (a).)
C. Defense Evidence.
1. Defendant’s testimony.
Defendant lived in Palm Springs with his “lover,” Christopher Strickland.
Defendant had been using methamphetamine daily for 13 years.
The night before April 20-21, 2016, defendant “partied” at a house and then stayed
there overnight. On April 20-21, 2016, he was wearing a pair of underwear that he found
abandoned at the house.
While defendant was at a park, a girl “came out of nowhere,” asked to use his
lighter, and shared some heroin with him. Later, around 11:00 p.m., he bought $10 worth
of methamphetamine and smoked it with an acquaintance.
He had missed the last bus home, so he went to the golf course of the Does’
country club. He was looking for a place “where [homeless people] could sleep”, so he
7
could either sleep there or “scare them, mess with some of those people . . . .” He had
some red drapes in a bag that he intended to give to a friend.
Hearing a voice, defendant went toward it, across the golf course and up to the
Does’ condo. He put the drapes on some chairs because he thought they would look
“neat” there. When he “peed on a bush,” he noticed a brown stain on the underwear, so
he took it off; 7 however, he put his pants back on. He denied taking his pants off again
later.
He saw lights on in the condo and he saw bicycles out on the patio. He “just
wanted somebody to play with.” He wanted “somebody to talk to, . . . [to] see if there
was anybody in there, maybe lie down and go to sleep.” He therefore removed the screen
from the sliding glass door and knocked “really softly.” The décor in the spare bedroom
made him think the condo was a model home. He saw a bed and decided to go inside and
go to sleep. He tried to open the sliding glass door, but it was locked. He planned “to
wash the sliding glass door where [he] put [his] prints from [his] hands.”
Defendant noticed that the screen on another window was on backwards. He took
it off, intending only to put it back on properly. Just then, however, he started sweating
and shaking. He was afraid he was having a bad trip. He therefore opened the window,
by bending it near the latch, and went inside, so he could “use the phone and call an
ambulance . . . .” He claimed he did not realize that he had broken into someone’s house.
However, he did think “if there’s somebody in here, I could get in trouble.”
7 He admitted that he had seen the stain before he put the underwear on.
8
He heard snoring. “I thought ewww,” he testified. However, he also found it
funny. He also testified that the snoring “attracted” him. When he heard it, “[his] goals
. . . changed.”
He followed the snoring to the master bedroom, where he saw two people asleep
in bed. He decided to lie down in the space between them and go to sleep. To get over
John, he rolled him onto his back. In the process, John’s hands “c[a]me down on
[defendant’s] head.” “I thought,” he testified, “maybe he thought that I was his wife” and
the gesture was an invitation “to give him a blow job . . . .” Defendant therefore
proceeded to orally copulate John.
Defendant denied touching Jane. Jane got out of bed, turned on the light, and
screamed, “What are you doing in my bed?” John put defendant in an “arm bar.” Jane
left the bedroom, and John let go of defendant. Defendant denied saying anything about
keys or being John’s brother.
Defendant left the bedroom, went through a door, and found the spare bedroom
that he had seen earlier. Then he went to the dining room and sat down. He asked John,
“Would you mind if I sucked your dick?,” but only once. He did not leave because he
did not know where the door was.
Jane was yelling into the phone and looking out the window. The yelling
“irritated” him and he “told her to quit screaming.” However, he was curious about what
she was looking at, so he walked up behind her. Jane was startled and backed up into
9
him. He put his hands on her hips, just to “lead her around [him].” That was when John
punched him.
Defendant admitted telling a police officer that “[he] wanted to suck his dick,” to
“flirt with him.”
Defendant testified that, during his encounter with Rachel D., he was wearing
spandex shorts, not briefs. He denied rubbing his penis or trying to grab her.
Defendant also denied following Lotus. He just happened to be going in the same
direction. Lotus ran up to him and said hello. When she said she was 16, all he said was,
“I bet there’s times that you wish you were 18.” He tried to grab her arm to stop her from
stepping off the curb in front of an oncoming SUV. He did plead guilty to child
annoyance, but only so he could get out of jail sooner.
2. Expert testimony.
The defense called Dr. Michael Kania, a forensic psychologist and an expert in
substance abuse. He testified that a large dose of methamphetamine can cause confusion,
disorientation, and inability to “read[] social cues.” Methamphetamine can also make a
user impulsive, including sexually impulsive.
Defendant told Dr. Kania that, on April 21, 2016, he was “very intoxicated.”
Based on defendant’s statements and behavior on that date, Dr. Kania believed he was
under the influence of methamphetamine. When Dr. Kania interviewed him, 16 months
later, defendant’s thinking was not disorganized.
10
D. Rebuttal Evidence.
Defendant told police that he went in the condo because he thought his brother
lived there, had sent him a key, and had given him directions. He intended to orally
copulate his brother, though he conceded that they had never had sex before. “[A]fter
trying the back door . . . he decided to go in through the window.” He thought John was
his brother.
He said he massaged the back of Jane’s neck while she was asleep. When she
pulled away from him, “he got more aggressive . . . , grabbed her by the back of the neck,
and pulled her head toward his groin,” seeking oral copulation. She was still asleep at
that point. He admitted propositioning John repeatedly.
He said that, in the kitchen, he grabbed Jane’s waist “aggressively.” He admitted
that he was trying “to freak [her] out.”
II
STATEMENT OF THE CASE
Before trial, defendant pleaded guilty to count 8, misdemeanor failure by a
transient to register as a sex offender. (§ 290.011, subd. (a).)
In a jury trial, defendant was found guilty of:
Count 1: Oral copulation on an unconscious person. (Former § 288a, subd. (f);
see now § 287, subd. (f).)
Count 2: Assault on John Doe during the commission of first degree burglary with
the intent to commit rape, sodomy, or oral copulation. (§ 220, subd. (b).)
11
Count 4: Felony sexual battery against Jane Doe, a restrained person. (§ 243.4,
subd. (a).)
Count 5: First degree burglary. (§§ 459, 460, subd. (a).)
As a result, he was sentenced to a total of 37 years to life in prison.
III
EVIDENCE OF DEFENDANT’S PRIOR SEXUAL OFFENSES
Defendant contends that the trial court erred by admitting evidence of his prior
sexual offenses against Rachel and Lotus.
A. Additional Factual and Procedural Background.
The prosecution filed a motion in limine to admit this evidence. Defense counsel
objected “on due process grounds and 352.”
8 Defendant also admitted one prior prison term enhancement. (§ 667.5, subd. (b).) However, Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020, eliminated all prior prison term enhancements, except when the prior prison term is for a sexually violent felony; defendant’s was not. Hence, although the trial court did not formally strike this enhancement, it recognized that it could not impose it, and it did not.
12
The trial court ruled that the evidence was admissible under Evidence Code
section 1108. “It shows a really impulsive act which . . . the felony charged here was. In
terms of showing propensity, I think it’s got . . . a very high amount of probative value.
It’s prejudicial. But I don’t think it’s any more prejudicial than any other prior sex
offense . . . .” It also admitted it as relevant to intent under Evidence Code section 1101,
subdivision (b).
The trial court instructed the jury that it could consider the prior sex offenses as
evidence of intent (CALCRIM No. 375) and as evidence that defendant “was disposed or
inclined to commit sexual offenses” (CALCRIM No. 1191A), and for no other purpose.
B. Discussion.
Evidence Code section 1101, subdivision (a), sets up a general rule that evidence
that the defendant has committed a crime in the past is inadmissible to prove that he or
she committed the charged crime. In other words, it bars evidence that the defendant has
a propensity to commit crimes.
Evidence Code section 1101, subdivision (b), states one exception to that rule. It
makes evidence that the defendant has committed a past crime admissible “when relevant
to prove some fact (such as . . . intent . . . ) other than his or her disposition to commit
such an act.”
Evidence Code section 1108, subdivision (a), states a second exception. It
provides: ‘In a criminal action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual offense or offenses is not made
13
inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section
352.”
Last but not least, Evidence Code section 352 gives the trial court “discretion [to]
exclude evidence if its probative value is substantially outweighed by the probability that
its admission will . . . create substantial danger of undue prejudice, of confusing the
“There is no requirement that a victim suffer actual injury or harm . . . .
[Citations.]” (People v. Clair (2011) 197 Cal.App.4th 949, 956 [decided under § 273a,
subd. (a)].) “It is the likelihood of foreseeable injury, rather than whether such injury in
fact occurs, that is relevant. [Citation.]” (People v. Lee (1991) 234 Cal.App.3d 1214,
1220 [decided under § 273a, subd. (a)].)
In People v. Racy (2007) 148 Cal.App.4th 1327, the defendant used a stun gun on
elderly victim Picaso. (Id. at pp. 1330-1331.) The appellate court found insufficient
evidence that using a stun gun, standing alone, was likely to produce great bodily harm.
32
(Id. at pp. 1332-1333.) Nevertheless, it held that there was sufficient evidence of
circumstances likely to produce great bodily harm. It explained:
“Defendant ‘zapped’ Picaso in the leg with a stun gun causing him substantial
pain. Presumably, to escape the situation and avoid more pain, Picaso retreated to his
bedroom, and defendant gave chase following ‘so close[ly]’ that Picaso could not shut the
bedroom door. When Picaso moved to the bed, defendant repeatedly ‘zapped’ the stun
gun ‘in the air’ and then ‘tip[ped] [Picaso] over,’ and grabbed his wallet, tearing Picaso’s
jean pocket. The struggle moved the bed approximately one foot away from the wall and
caused Picaso to trip.
“From this evidence, the jury reasonably could have concluded that defendant’s
close pursuit of Picaso (which prevented Picaso from locking the door) or the force
defendant exerted on Picaso (which was strong enough to tip him over, tear his jean
pocket, and cause a struggle in which Picaso tripped and the bed moved one foot) likely
could have caused Picaso to fall and break a bone, causing him great bodily harm. . . .
Picaso’s knees are disabled and he is 74 years old, which, as a matter of common
knowledge, is an age that carries with it an increased risk of bone fractures from a fall.”
(People v. Racy, supra, 148 Cal.App.4th at p. 1333.)
Here, defendant’s use of force was very limited. He orally copulated John while
John was asleep. He grabbed Jane’s breasts and pubic area. He also grabbed her “mouth
area.” Defendant told police that he “grabbed her by the back of the neck[] and pulled
her head towards his groin.” Once John awoke, however, he was able to push defendant
33
off of him. Later, when defendant told Jane to stop yelling, he grabbed her shoulders
“[r]oughly and firmly.” However, when John punched defendant and then pinned him to
a countertop, defendant did not resist.10
Nothing about defendant’s actions was likely to cause more than slight harm, even
to elderly victims. Unlike in Racy, there was no struggle in which the Does could have
been injured. And there was no evidence that the Does had any medical condition that
would predispose them to injury, as in Racy. There was no evidence that the Does so
much as suffered bruises.
Waking up to find a naked stranger sexually assaulting you in your home is
undoubtedly terrifying. The Does’ fear in this situation is totally understandable.
However, their fear arose from defendant’s unpredictability; it was not about what he did,
so much as it was about what he might do. As Jane testified, “I didn’t know if he was
going to rape me or kill me.” The Does had to assume that defendant might use force.
The evidence however, shows that defendant did not intend to use force, even when
punched. Whenever the Does resisted, he backed off.
In closing argument, the prosecutor claimed that there was a risk of great bodily
harm “because that’s a stranger, 6’6”. He’s already sexually assaulted them in bed. And
now he’s going after [Jane]. . . . [¶] . . . When you listen to that 911 call, you hear
it. . . . You hear the threat of great bodily injury or death. And that’s the point at which
10 The People state that, while John was in bed, defendant “push[ed] him down onto his back . . . .” Not so. The cited portion of the record says that it was John who pushed defendant away and off of him.
34
Jane Doe runs out. She runs out of her own home in fear of what’s going to happen to
her in her own home.” All of these points tended to show that the Does were terrified,
and reasonably so. However, they did not show a great probability of serious injury.
We therefore conclude that we must modify the judgment so as to reduce the two
counts of felony elder abuse to misdemeanor elder abuse.
VII
DISPOSITION
The conviction of felony sexual battery on count 4 is reduced to misdemeanor
sexual battery. The convictions of felony elder abuse on counts 6 and 7 are reduced to
misdemeanor elder abuse. The convictions on all other counts are affirmed. The
judgment with respect to the sentence is reversed and the matter is remanded for
resentencing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.