People v. Thomas CA2/8

Filed 3/29/22 P. v. Thomas CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B317246

Plaintiff and Respondent, Madera County Super. Ct. No. MCR050285 v.

JEFFREY ANTHONY THOMAS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Madera County, Mitchell C. Rigby, Judge. Affirmed in part, vacated in part, and remanded for resentencing. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ross K. Naughton and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent. ____________________

A jury convicted Jeffrey Anthony Thomas of two sex crimes against his stepdaughter. Thomas claims insufficient evidence supports one of his convictions. He also seeks reversal based on an instructional issue our Supreme Court already has decided against him. We affirm Thomas’s convictions. However, we vacate his sentence and remand the matter for resentencing in light of recent sentencing legislation. We also direct the trial court to adjust the fees Thomas owes. Undesignated statutory references are to the Penal Code. I In 2015, an information charged Thomas with various sex crimes against his stepdaughter, Brooke. The information had five counts. After eight days of testimony, a jury found Thomas guilty of committing a forcible lewd and lascivious act upon a child under 14 (§ 288, subds. (a) & (b)(1)) (count 1) and committing an earlier lewd and lascivious act on this child (§ 288, subd. (a)) (a lesser included offense of count 4). The trial court sentenced Thomas to 18 years in state prison, composed of the upper term of 10 years for the first count and the upper term of eight years for the latter count. The court also imposed various fines and fees, some of which we discuss below. Thomas argues insufficient evidence supports count 1, so we focus on this count and related facts. The count concerns events on November 12, 2014, when Brooke was 11. We provide some background before delving into these events. We largely omit contrary facts. Our job in appeals of this kind is to look for substantial evidence supporting the verdict, not to resolve evidentiary conflicts. (See People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)