People v. D'Angelo CA6

Filed 8/29/23 P. v. D’Angelo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050715 (Santa Cruz County Plaintiff and Respondent, Super. Ct. No. 19CR01233)

v.

THOMAS MARK D’ANGELO,

Defendant and Appellant.

Thomas Mark D’Angelo appeals from a judgment entered after conviction by plea. Appointed counsel for D’Angelo has filed a brief asking this court to review the record to determine whether there are any arguable issues. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) D’Angelo was advised of the right to file a supplemental brief. He has submitted a letter brief to this court, which we have reviewed and considered. Finding no arguable error that would result in a disposition more favorable to D’Angelo, we affirm the judgment. I. FACTS AND PROCEDURAL BACKGROUND1 On January 2, 2019, D’Angelo’s girlfriend S.M. contacted the Santa Cruz County Sheriff’s Office to report that her daughter Jane Doe, who is developmentally disabled,

1 These facts are taken from the preliminary hearing.

had had a sexual relationship with D’Angelo when Jane Doe was a minor. D’Angelo was born in 1958. Jane Doe was born in 2000. In interviews with law enforcement, Jane Doe disclosed sexual incidents that had occurred between her and D’Angelo. For example, Jane Doe described an incident in which D’Angelo put his penis in her rectum and continued to penetrate her after she told him it hurt. Jane Doe stated she was 11, 12, or 17 when the incident occurred. D’Angelo also showed Jane Doe pornography. Jane Doe said D’Angelo used a sex toy on her at his residence. Jane Doe’s DNA was found on a sex toy that S.M. discovered in D’Angelo’s possessions. In a text message between Jane Doe and D’Angelo, in which Jane Doe asked about the possibility of her not getting her period (i.e., being pregnant), D’Angelo replied they only had had sex one time. In a pretext phone call with S.M., D’Angelo admitted that he had sex with Jane Doe but he did not rape her and had used a condom. In other pretext phone calls, D’Angelo denied that he had had sex with Jane Doe. On November 19, 2019, the trial court conducted a preliminary hearing at which Joshua McKim and Ryan Farotte of the Santa Cruz County Sheriff’s Office were the sole witnesses. On November 20, 2019, the court held D’Angelo to answer. D’Angelo was charged by information on November 26, 2019, with eight crimes against Jane Doe: Rape of an incompetent person (Pen. Code, § 261, subd. (a)(1)2; count 1), forcible rape (§ 261, subd. (a)(2); count 2), three counts of sexual battery by restraint (§ 243.4, subd. (a); counts 3–5), forcible oral copulation (former § 288a, subd. (c)(2)(a); count 6), distributing or showing pornography to a minor (§ 288.2, subd. (a)(2); count 7), and sodomy by use of force where the minor victim is 14 or older (§ 286, subd. (c)(2)(c); count 8). The information alleged the offenses occurred on or about or between February 12, 2011, and December 30, 2018.