Filed 9/15/16 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,                                                          B270554

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA063283)
         v.

JEFFREY LEE THOMAS,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Christopher G. Estes, Judge. Affirmed.


         Vanessa Place, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and Scott A. Taryle, Deputy
Attorney General, for Plaintiff and Respondent.


                                                       ******
       We affirm defendant and appellant Jeffrey Lee Thomas’s conviction for two
counts of lewd act upon a child and one count of continuous sexual abuse. His sole
argument that his trial was unfair because the court allowed evidence of currently
uncharged sexual offenses repeatedly has been rejected, including by our Supreme Court.
                                    BACKGROUND
       Defendant was convicted of two counts of lewd act upon a child under 14 (Pen.
Code, § 288, subd. (a)) (Melissa and Anna). Defendant also was convicted of the
continuous sexual abuse of a child under 14 (Pen. Code, § 288.5, subd. (a)) (Melissa).
With respect to all counts, jurors found that defendant was convicted of violating section
288 or section 288.5 against more than one victim. Defendant admitted that he suffered a
prior conviction for committing a lewd act on a child with force (§ 288, subd. (b)(1)) and
two convictions for committing a lewd act on a child (§ 288, subd. (a)). Defendant also
admitted that he was in violation of his probation. Defendant was sentenced to a prison
term of 270 years to life.
1. Evidence at Trial Overwhelmingly Supported the Judgment
       Melissa and Anna are sisters. At the time defendant molested them, he was their
mother’s boyfriend, and he visited regularly in their home.
       Melissa met defendant when she was eight years old. One day, when she was
almost nine, Melissa was alone with defendant in her living room; her mother and sister
were elsewhere in the apartment. Defendant rubbed Melissa’s vagina for about five
minutes. Melissa told defendant to stop and tried to move his hand. Melissa did not tell
her mother or her sister because she thought they would not believe her.
       Two or three weeks later, defendant reached under Melissa’s clothes and rubbed
her vagina. Defendant told Melissa she “was a woman now.” Defendant tried to insert
his penis in Melissa’s vagina, but she was able to push him away.
       On another occasion, defendant grabbed Melissa’s hand and put it on his penis.
Defendant rubbed Melissa’s hand up and down. He ejaculated. Another time, defendant
rubbed his penis on Melissa’s vagina. Defendant touched Melissa’s breasts and her
vagina.


                                             2
       Melissa testified that defendant touched her approximately three or four times a
week every week over a three-year period (from 2010 to 2013). She repeatedly told him
to stop touching her. Defendant told Melissa if she reported his conduct to her mother,
her mother would not believe her. Melissa was scared to tell her mother because she did
not want to be placed in foster care.
       Anna testified that when she was about 13 years old, defendant touched her in her
home. Defendant put his fingers in Anna’s vagina and touched her breasts under her
clothing. Anna said, “no.” Defendant ignored her and warned her that no one would
believe her if she reported him.
       A few days later, defendant again put his fingers inside Anna’s vagina and touched
her breasts. While his fingers were inside Anna’s vagina, defendant removed his clothing
and put his hand on his penis. Defendant did not ejaculate. Anna did not tell her mother
because defendant warned her no one would believe her. Defendant engaged in similar
conduct about once a week over a two-year period.
       Defendant did not testify and no witness testified for the defense.
2. Evidence of Defendant’s Prior Sexual Misconduct Was Admitted over Objection
       The court held a hearing outside the presence of jurors to address the admissibility
of defendant’s prior sexual offenses. The prosecutor argued that the evidence was
relevant to prove defendant’s intent. Defense counsel argued that the convictions were
remote and the specific sexual acts were different. Defendant’s counsel also argued that
admission of the evidence violated his right to due process.
       The court found evidence of defendant’s prior sexual offenses admissible under
Evidence Code section 1108.1 The court concluded that section 352 did not bar the
introduction of the evidence. The court reasoned that the charges were similar and the
sexual conduct was similar. The prior offenses were not too remote because defendant
had spent a significant portion of time between the offenses incarcerated.



1      All further statutory references are to the Evidence Code.


                                             3
       In the presence of jurors, 23-year-old M.S. testified that when she was eight or
nine years old defendant was her mother’s boyfriend. Defendant lived with her mother in
their one-bedroom apartment. M.S. was sick one day and came home early from school.
That day, defendant licked her vagina. Defendant told her he would make her feel better.
Defendant regularly touched her over and under her clothing approximately two times per
week. Defendant also rubbed his penis against M.S.’s vagina. M.S. told her mother, but
her mother did not believe her.
                                       DISCUSSION
       Section 1108, subdivision (a) 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 inadmissible by Section 1101, if the
evidence is not inadmissible pursuant to Section 352.” On appeal, defendant argues that
M.S.’s testimony deprived him of due process and violated his right to equal protection.
       Defendant’s arguments lack merit.
1. Due Process

       In People v. Falsetta (1999) 21 Cal.4th 903, 917-918, 922 (Falsetta), our Supreme
Court held that the introduction of evidence of prior sexual offenses under section 1108
does not violate due process. In 2011, our high court reaffirmed its holding that section
1108 does not violate due process. (People v. Loy (2011) 52 Cal.4th 46, 61 (Loy).) In
2014, our high court again upheld the constitutionality of section 1108. (People v.
Merriman (2014) 60 Cal.4th 1, 46 (Merriman).) We are required to follow our high court
and conclude that the introduction of M.S.’s testimony did not violate defendant’s right to
due process. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
       Defendant’s only argument that Falsetta was wrongly decided is unpersuasive
because his sole authority involved neither section 1108 nor evidence of prior sexual
offenses. Defendant cites Garceau v. Woodford (9th Cir. 2001) 275 F.3d 769 (Garceau),
reversed on another ground in Woodford v. Garceau (2003) 538 U.S. 202, in which the
federal appellate court held that instructional error resulted in a due process violation.



                                              4
(Garceau, at p. 776.) Jurors were instructed that evidence of a prior murder, which was
admitted without objection, could be considered to assess the defendant’s character and
his conduct on a specific occasion. (Id. at p. 773.) The court found the instruction
prejudicial because the evidence in Garceau was not strong. (Id. at p. 775.)
       Here, no claim is made that jurors were improperly instructed. Garceau therefore
does not assist defendant. Moreover, in contrast to Garceau, even if the introduction of
the evidence was erroneous, the error was not prejudicial because the evidence was
uncontradicted and overwhelming. (Chapman v. California (1967) 386 U.S. 18.)
Melissa and Anna credibly testified about defendant’s repeated sexual touching over
multiple years. They consistently testified defendant warned them not to tell their mother
because she would not believe them. No contrary testimony was admitted and there was
no basis to disbelieve Melissa or Anna. In any event, to the extent Falsetta and Garceau
are in conflict, we must follow Falsetta. (Auto Equity Sales, Inc. v. Superior Court,
supra, 57 Cal.2d at p. 455.) Moreover, Garceau predated our high court’s decision in
Merriman and Loy.
2. Equal Protection
       Defendant argues that his right to equal protection was violated because section
1108 permits propensity evidence only in cases involving sex offenses. Defendant’s
argument is forfeited because he did not object on this ground in the trial court. (People
v. Alexander (2010) 49 Cal.4th 846, 880, fn. 14.)
       On the merits, defendant’s argument is unpersuasive. The same argument was
rejected almost two decades ago in People v. Fitch (1997) 55 Cal.App.4th 172, 184-185
(Fitch), and uniformly has been rejected by other courts. The Fitch court explained:
“An equal protection challenge to a statute that creates two classifications of accused or
convicted defendants, without implicating a constitutional right, is subject to a rational-
basis analysis.” (Id. at p. 184.) “Evidence Code section 1108 withstands this relaxed
scrutiny. The Legislature determined that the nature of sex offenses, both their
seriousness and their secretive commission which results in trials that are primarily
credibility contests, justified the admission of the relevant evidence of a defendant’s


                                              5
commission of other sex offenses. This reasoning provides a rational basis for the law.
Defendant’s arguments as to the recidivism rate of sex offenders are unavailing. In order
to adopt a constitutionally sound statute, the Legislature need not extend it to all cases to
which it might apply. The Legislature is free to address a problem one step at a time or
even to apply the remedy to one area and neglect others.” (Id. at pp. 184-185.)
       We agree with the reasoning and result in Fitch and join the numerous courts that
have followed Fitch. (People v. Waples (2000) 79 Cal.App.4th 1389, 1395; People v.
Van Winkle (1999) 75 Cal.App.4th 133, 140; see Rogers v. Giurbino (S.D.Cal. 2007) 619
F.Supp.2d 1006, 1016.) Defendant fails to consider any of this relevant authority in
advancing his equal protection argument further undermining his contention.
                                      DISPOSITION
       The judgment is affirmed.




                                                  FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




                                              6
